Delhi District Court
Fir No. 282/14 5 State vs Tinku Singh Etc. 1 Of 82 on 23 September, 2017
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL SESSIONS JUDGE-03(NE), KARKARDOOMA COURTS, DELHI SC No. 44453/15 FIR No. 282/14 PS : New Usmanpur U/s 302/201/182/34 IPC State Versus 1. Tinku Singh S/o Sh. Mudin Singh R/o Village Pahar Pur, PS Khadagpur, Distt. Munger, Bihar 2. Sandeep Kumar S/o Sh. Chhotan Dass R/o Village Malchak Sarna, PS Harpur Distt. Munger, Bihar 3. Shashi Bala W/o Late Inder Pal Singh R/o K-296 M, Gali no. 5, Gautam Vihar, Delhi. Date of Committal : 13.08.2014 Date of Arguments : 28.08.2017 Date of Pronouncement : 23.09.2017 FIR No. 282/14 5 State Vs.Tinku Singh etc. 1 of 82 JUDGMENT :
1. Prosecution case: It is the case of the prosecution that on 20.3.2014, a DD No. 26A was lodged by accused Shashi Bala that her husband namely Inder Pal, R/o K-296, Street No. 5, Gautam Vihar, Delhi was missing since 18.3.2014. DD was assigned to HC Shri Pal. On 23.3.2014, accused Tinku Singh was called to PS as suspect to interrogate in missing of deceased. He was produced before Inspector and during interrogation, he confessed that on 17.3.2014, he committed the murder of deceased Inder Pal in his room and thereafter, dead body wrapped in plastic and jute bags was thrown in the area of 3 ½ pusta, Usmanpur near bushes, Yamuna Khadar. He further disclosed that he could get recovered dead body. On the basis of this information, Inspector constituted a police team comprising of police officials and relatives of deceased namely Dinesh and Sanjay Kumar. Accused led police team to the spot between 3 - 3 ½ pusta, near IGL Board and pointed out a plastic bag near bushes and disclosed that the same was containing the dead body of deceased. Foul smell was emitting of that bag. Crime team was called to the spot. On arrival of crime team bag was opened and was found containing five plastic bags and two jute bags besides one red and yellow colour printed cloth in which dead body was wrapped and then was put in that bags. Head of body was missing one chocolate colour underwear was on the body and body was tied by a rope. After recovery of torso, accused Tinku Singh was interrogated again and further disclosed and pointed out the spot FIR No. 282/14 5 State Vs.Tinku Singh etc. 2 of 82 where a big plastic bag was lying in water log which was recovered from some distance ahead of the recovery of torso. Accused Tinku Singh disclosed that it was the head of deceased Inder Pal. Meanwhile, Inspector called a private photographer Amal Chand Tiwari for videography of recovery proceedings. Body was identified by Dinesh and Sanjay Kumar to be of deceased. Body was sent to mortuary of GTB Hospital through Ct. Sachin. Thereafter, police team went to the spot of incident i.e. at ground floor room at K-296, Street No. 5, Gautam Vihar thereby leaving HC Shri Pal at the spot of recovery of body. Crime team also inspected the room. A case u/s 302/201 IPC was lodged. Accused was arrested.
1.1. It is further alleged that during investigation, accused disclosed that he had illicit relations with the wife of deceased Inder Pal namely Shashi Bala and they also developed physical intimacy between them, but deceased was suspicion about this relation and used to quarrel with Shashi Bala under the influence of liquor. It is further disclosed that on 17.3.2014, on the occasion of Holi, Inder Pal quarreled with Shashi Bala under the influence of liquor and scuffled with her. In the meanwhile, Tinku Singh who was also there intervened and during that scuffle, at the instance of Shashi Bala he strangulated the deceased, and Shashi Bala asked him to remove the dead body and she was going to house of her sister. Tinku Singh called his friend Sandeep and both of them beheaded the body of Inder Pal and packed inside plastic bags and jute bags and threw at FIR No. 282/14 5 State Vs.Tinku Singh etc. 3 of 82 two spots wherefrom it was recovered. Accused Sandeep and Shashi Bala were also arrested. During investigation, accused Tinkuj Singh led police to the house of Sandeep wherefrom blood stain clothes of Tinku Singh and Sandeep worn at the time of incident were recovered besides a briefcase containing two photographs of Tinku Singh with Shashi Bala were also recovered. Accused Tinku Singh vacated the tenanted premises and put his briefcase at the house of Sandeep as he leave Delhi. One weapon of offence i.e. dav / choppar was also recovered from the area of Titiksha Model Public School in pursuance of his disclosures statement. Postmortem was conducted on the dead body and viscera was preserved. Subsequent opinion about use of weapon was also sought. Mobile phone of deceased was recovered from Sandeep and, all the accused were in contact with each other by mobile phone. CDRs of those mobiles were also collected. All the accused were charge- sheeted u/s 302/201/182/34 IPC.
2. This charge-sheet committed to this court after compliance of Section 207 Cr.P.C.
3. Accused Tinku Singh and Shashi Bala were charged under Section 302/34 IPC besides additional charge u/s 182 IPC against accused Shashi Bala. Charge u/s 201 IPC was framed against accused Sandeep vide ordersheet dated 27.1.2015. All accused pleaded not guilty and claimed trial.
FIR No. 282/14 5 State Vs.Tinku Singh etc. 4 of 82
4. Prosecution has examined PW1 HC Raj Kumar, PW2 Ct. Ajeet Singh, PW3 W/SI Veera Sharma, PW4 HC Yashbir, PW5 HC Sonu Kaushik, PW6 Ct. Sachin, PW7 Mahipal Singh, PW8 Dinesh Kumar, PW9 Sanjay, PW10 Pawan Sharma, PW11 Shubham Singh, PW12 Amal Chand Tiwari, PW13 HC Narender, PW14 SI E.S. Yadav, PW15 HC Shri Pal Sharma, PW16 HC Sonu Rathi, PW17 Ct. Waheed Khan, PW18 Ct. Anil Kumar, PW19 Ct. Sachin Khokhar, PW20 Inspector Mahaveer Singh, PW21 W/Ct. Neetu, PW22 Dr. Neha Gupta, PW23 SI Pankaj Tomar, PW24 Inspector Jitender Singh, PW25 Yogesh Tripathi, Nodal Officer, PW26 Israr Babu, Nodal Officer and closed PE.
5. After PE, entire incriminating evidence explained to the accused under section 313 Cr.P.C and their statements were recorded.
6. To prove the case, prosecution has examined many witnesses including the complainant. The evidence led by the prosecution is as under:-
6.1. PW1 HC Raj Kumar has proved DD No. 20A which is Ex.
PW1/3. He received rukka Ex.PW1/1 through Ct. Anil and got typed FIR Ex.PW1/2 against DD No.20A through Lady Ct. Rakhi after making separate endorsement on rukka. Certificate u/s 65B of Evidence Act pertaining to FIR is Ex.PW1/4. He handed over copies FIR No. 282/14 5 State Vs.Tinku Singh etc. 5 of 82 of FIR to special messenger Ct. Wahid to deliver the copies to Sr. Police Officers and Ld. MM vide DD No-21A which is Ex.PW1/5.
6.2. PW2 Ct. Ajeet Singh was the photographer of crime team and visited the spot of recovery of torso as well as head of the deceased Inder Pal at the instance of accused Tinku. He also visited the spot of incident. He clicked 46 photographs Ex.PW2/A-1 to Ex. PW2/A-
46. Negatives of photographs are Ex.PW2/B-1 to Ex. PW2/B-46.
6.3. PW3 W/SI Veera Sharma has proved the Missing report of deceased Inderpal lodged by Shashi Bala on 20/3/2014 that he was missing since 18/3/2014. She recorded DD No.26A on the basis of statement of Shashi Bala which is Ex.PW3/1 and assigned to HC Shri Pal. Photocopy of DD No. 26A is Ex.PW3/2.
6.4. PW4 HC Yashvir has proved the DD No15A lodged and recorded by IO on 23/3/2014 regarding his departure to 3½ pushta to make recovery of dead body. DD is Ex.PW4/1.
6.5. PW5 HC Sonu Kaushik, Asstt. Draftsman, Crime Branch visited the spot of incident as well as recovery of dead body on 15/6/2014 with IO and prepared the scaled site plan Ex.PW5/1.
FIR No. 282/14 5 State Vs.Tinku Singh etc. 6 of 82 6.6. PW6 Ct. Sachin deposited seven sealed parcels with FSL on 20/6/14 after collecting from MHC(M) vide RC Ex.PW6/1 and Ex.PW6/2. He returned back AD to MHC(M) which is Ex.PW6/3.
6.7. PW7 Sh. Mahipal Singh is the elder brother of deceased Inder Pal Singh and has deposed that Inder Pal Singh started residing at Gautam Vihar, Usmanpur, Delhi after about one year of his marriage along with his wife Smt. Shashi Bala and two daughters. On 18.03.2014 at about 9.00 P.M., he received phone call of Shashi Bala that her husband Inder Pal Singh was missing from house under the influence of liquor. On 19.03.2014, he alongwith his nephew Amardeep visited the house of deceased but room was locked and Shashi Bala was at the house of her sister. Shashi Bala disclosed them that Inder Pal left house under influence of liquor on 18.03.2014. He also tried to search dead but no clue could come forward and he along with his nephew returned to his native village. On 23.03.2014, he alongwith his cousin Sanjay Kumar and one Dinesh Kumar went to P.S. New Usmanpur being called by his son Pradeep as Shashi Bala and Tinku had been apprehended by the police. Tinku was reside tenant in the same house with his brother Inder Pal Singh and his family. He was appraised by the police that his brother was no more. It is further deposed that accused Dinesh and Sanjay along with police officials and accused Tinku went towards Yamuna for recovery of dead body of his brother. On inquiry at P.S. N.U. Pur, accused Shashi Bala disclosed to police in his FIR No. 282/14 5 State Vs.Tinku Singh etc. 7 of 82 presence that Inder Pal was killed by accused Tinku. On next day, he identified the dead body of his deceased Inder Pal in two pieces i.e. the head was separated from his torso (dhad) vide statement Ex.PW7/A. After postmortem, he received the dead body against receipt Ex.PW7/B. It is further deposed that Police arrested accused Shashi Bala being involved in the murder of her husband with accused Tinku. He has identified the photograph Mark PW7/1 of deceased Inder Pal Singh and photographs Mark PW7/2 and PW7/3 of accused Tinku and Shashi Bala together.
6.7.1. During cross examination, he has deposed that his relations with his both brother were cordial and he was not habitual drinker. Accused Shashi Bala made call either to his nephew Satish or son Pradeep to inform regarding missing of his brother, but he did not make any complaint regarding it with P.S, but he made search for his brother in relations and other places. It is admitted that he has no personal knowledge about the murder of his brother Inder Pal Singh, but his statement was recorded in PS, whereas it was not read over to him. It is admitted that he put his thumb impressions on one or two documents under the direction of IO during investigation. He was confronted his statement u/s 161 Cr.P.C Ex.PW7/DA but it is not recorded in his statement that accused Shashi Bala disclosed to police in his presence that Inder Pal was killed by accused Tinku or that Shashi Bala was involved in the murder of her husband with Tinku.
FIR No. 282/14 5 State Vs.Tinku Singh etc. 8 of 82 6.8. PW8 Dinesh Kumar has deposed that on 23.03.2014, he alongwith Sanjay, Mahipal, Satish, Pradeep, Satbir came to P.S. New Usmanpur, Delhi on receiving information about missing of Inder Pal Singh. At that time, accused Shashi Bala was present at P.S. along with her sister. He made inquiries from Shashi Bala about the presence of her husband but she replied that he was missing. After times, accused was also brought to P.S. and Tinku and Shashi Bala were interrogated. Accused Tinku led police team to the recovery of dead body of Inder Pal from a place at 3½ pushta near IGL signboard and pointed out one plastic bag containing one jute bag and further containing other bags. One dead body without head was found from that bags which was tied with rope. He identified the dead body belonged to Inder Pal Singh from one burn scar mark on the left palm of Inder Pal Singh (also disclosed as sign of identification in missing complaint). One Inspector completed some proceedings. Crime team officials also visited the spot. Accused Tinku was interrogated by the Inspector to know about the head of dead body. Thereafter, accused Tinku led to a distance of about 100- 150 meters from the recovery of torso and pointed out towards a polythene bag smeared with mud and disclosed that bag was containing head of Inder Pal Singh. On opening the polythene bag, one head was taken out which was identified by him and Sanjay. The same was of Inder Pal Singh. The eyes and tongue were coming out. Police officials and crime team officials did some proceedings there. Thereafter, both the parts of dead body were sent to mortuary of FIR No. 282/14 5 State Vs.Tinku Singh etc. 9 of 82 GTB Hospital for postmortem examination. On 24.03.2014, he along with Sanjay and Mahipal identified the dead body in mortuary vide statement Ex.PW8/A and dead body was released to Mahipal after postmortem examination against receipt Ex.PW7/B. He put his signatures on some papers at the time of torso and head recovered at the instance of Tinku. Pointing out memo cum seizure memo of torso (dhad) is Ex.PW8/B and seizure memo of head is Ex.PW8/C. The photographs Ex.PW2/A-1 to Ex.PW2/A-37 at the spot of recovery of dead body of deceased, bags and accused Tinku were taken by the police officials at the time recovery of body parts. It is further deposed that accused Shashi Bala had illicit relations with co- accused Tinku due to she got committed the murder of her husband through co-accused Tinku.
6.8.1. During cross examination, he has deposed that he reached at PS on 23.03.2014, at about 9.00 A.M and stayed there till 12.30 P.M. He visited house of Inder Pal Singh on 23.03.2014 but no one was present there and premises was locked. He came to know on 23.03.2014 at about 12 noon through accused Tinku that Inder Pal had been murdered. They left to P.S. for going to Yamuna Bank at the instance of accused Tinku at about 12.15 / 12.20 P.M. and reached within 5-10 minutes. Accused Shashi Bala was not with them when they went to recovery and she was at P.S. N.U. Pur. Police officials completed proceedings pertaining to recovery of dead body in two parts for about 2 hours and thereafter left the spot. It is FIR No. 282/14 5 State Vs.Tinku Singh etc. 10 of 82 admitted that Tinku was not known to him prior to 23.03.2014. He has no personal knowledge about the murder of Inder Pal. It is further deposed that ''main jo kutch kah raha hun waha meri ankho dekhi baat hai''. It is admitted that police recorded his statement on 24.03.2014, but it is not recorded in his statement Ex. PW8/DA that accused Shashi Bala had illicit relations with Tinku or that Shashi Bala got committed the murder of her husband through co accused Tinku. It is further admitted that he did not make any missing complaint of Inder Pal Singh with PS or anywhere else.
6.9. PW9 Sanjay has corroborated the testimonies of Dinesh and Mahipal that on 23/3/2014, he visited PS and found Shashi Bala and Tinku in the custody of police officials and came to know that accused Shashi Bala and Tinku Singh had committed the murder of Inder Pal Singh. It is further deposed that it was told by accused Shashi Bala that co-accused Tinku Singh committed murder of her husband and dead body of Inder Pal was thrown by both of them on the bank of Yamuna river at 3 ½ Pushta, N.U. Pur. He also witnessed the recovery of torso and head of the dead body at the instance of accused Tinku. On 24.03.2014, he along with Dinesh and Mahipal identified the dead body and received the body after post mortem. He has deposed that accused Shashi Bala had affair with Tinku and she got committed the murder of her husband through Tinku.
FIR No. 282/14 5 State Vs.Tinku Singh etc. 11 of 82 6.9.1. During cross examination, he has admitted that on 23.3.2014, it came into his notice through his nephew Pardeep Kumar that Inder Pal Singh was not traceable and police had brought Shashi Bala and Tinku to PS and they disclosed that Inder Pal had been murdered. Police took about 1 - 1 ¼ hours in completing of spot proceedings regarding recovery of body parts. His statement was recorded when he identified the dead body of Inder Pal. It is admitted that his statement Ex.PW9/DA is not containing that it came into his notice that Shashi Bala and Tinku committed the murder of Inder Pal or that police interrogated accused Tinku as well as Shashi Bala in his presence at PS or that accused Shashi Bala disclosed that Tinku committed the murder of her husband, whereas he told to police about it. It is further admitted that his statement u/s 161 Cr.PC is not containing that accused Shashi Bala had affair with Tinku or that she got committed the murder of her husband through him, but it was told to police by him. It is further admitted that he never seen Shashi Bala with Tinku prior to 23.3.2014, but he heard a conversation between them on phone, but that conversation was not given to police. It is admitted that he did not tell police in his statement u/s 161 Cr.PC that he heard the conversation of accused relating to illicit relationship between them, however, neither accused Shashi Bala nor Tiknu told him about their love affair at any point of time.
6.10. PW10 Pawan Sharma is the landlord of deceased and let out two rooms at ground floor to deceased about 2 years prior to incident FIR No. 282/14 5 State Vs.Tinku Singh etc. 12 of 82 against monthly rent of Rs. 2,500/- and deceased started residing along with family. It is further deposed that one another tenant Shivam was also residing at first floor of his house. On 23.03.2014, it came into his notice that Inder Pal Singh had been murdered when police officials visited his residence along with accused Tinku. Tinku was earlier known to him being residing in his house along with Inder Pal and Shashi Bala. It is further deposed that once he went to his house to collect rent from Inder Pal Singh and met Tinku there. Shashi Pal introduced Tinku to him thereby saying that he was known to her and Tinku started residing in one room out of two let out to Inder Pal Singh. On 23.03.2014, police took him to his tenanted premises and accused Tinku was with them but the rooms in tenancy of Inder Pal and Tinku were locked. It is further deposed that it also came into his notice on reaching there that accused Shashi Bala used to visit her rented accommodation for a while in the last 2/3 days. It came into his notice that Shashi Bala had lodged a missing report of her husband Inder Pal with P.S. Usmanpur, but Inder Pal was lastly seen by him on the day of Holi and thereafter, he was found disappeared. Police recovered dead body of Inder Pal in parts as told to him.
6.10.1. During cross examination, he has deposed that he cannot tell the exact date when two rooms were let out to Inder Pal. It is admitted neither rent receipt was issued nor rent agreement was executed between him and even tenant verification also not got FIR No. 282/14 5 State Vs.Tinku Singh etc. 13 of 82 conducted after letting out rooms to Inder Pal. On 23.03.2014, at about 9.00 am, police told him that Inder Pal had been murdered. It is further admitted that Tinku never paid any rent to him. He saw Inder Pal on the day of Holi in the street in the year 2014, but he did not see accused Tinku roaming around deceased at any point of time. He was not aware about the love affair of Shashi Bala with Tinku. It is admitted that he did not collect ID Proof of either Inder Pal Singh or Tinku at the time of letting out the premises. He was not aware whether there was any dispute or quarrel between Inder Pal and Shashi Bala on petty issues. He had no personal knowledge about the murder of Inder Pal. It is denied that he did not see accused Tinku in one room let out by him to Inder Pal Singh.
6.11. PW11 Shubham Singh was tenant of Pawan Sharma at first floor of House No. K-296, gali no. 5, Gautam Vihar, Usmanpur, Delhi against a rent of Rs. 2000 per month. It is further deposed that Tinku had been residing in room at ground floor and another room of ground floor was being used by Inder Pal Singh and his family. On the day of Holi i.e 17.03.2014, he saw Inder Pal in his room along with family in noon hours. It is further deposed that Inder Pal used to consume liquor occasionally and was rickshaw puller. It is further deposed that on the day of Holi, a quarrel had taken place between Inder Pal and his wife Shashi Bala on the issue of consuming liquor by Inder Pal and accused Tinku was present at the first floor of the house alongwith both daughters of Inder Pal. It is further deposed FIR No. 282/14 5 State Vs.Tinku Singh etc. 14 of 82 that he left his room at about 3 P.M. and went to the house of his relative. It is further deposed that accused Tinku vacated his room on the next day of Holi. After 3 or 4 days of Holi, in the year 2014, two police officials visited the premises but, neither Shashi Bala nor Tinku were present there and rooms were locked. During the aforesaid 3 / 4 days period, in day hours, Shashi Bala used to visit the tenanted room for a while otherwise she had been residing with her sister who was also residing in the same locality. Shashi Bala lodged a missing report of her husband Inder Pal and he came to know through police that Inder Pal had been murdered and Tinku was with police at that time.
6.11.1. During cross examination, it is admitted that neither rent agreement nor receipt was ever executed by the landlord with him regarding his tenancy. Police recorded his statement after 3-4 days of Holi, but he did not remember the exact date of recording of his statement. He heard the altercation (kaha suni) between Shashi Bala and her husband Inder Pal on the day of Holi and he was going to take bath at that time, but neither he pacified the matter nor went to room where altercation was going on. He heard the altercation for about 15 minutes but did not tell this fact to police in his statement. He was not aware when both the daughters of Inderpal were taken by accused Shashi Bala from the roof of his room on the day of Holi. Police did not read over his statement after recording. It is admitted that he never seen Inder Pal while consuming liquor, but on the day FIR No. 282/14 5 State Vs.Tinku Singh etc. 15 of 82 of Holi, Inder Pal was under the influence of liquor when he met him. It is further admitted that he did not meet Inder Pal on the day of Holi, but saw him in noon hours in his room. It is admitted that he never seen any quarrel between Inder Pal and Shashi Bala. He was not aware about the affairs between Tinku and Shashi Bala.
6.12. PW12 Amal Chand Tiwari was the private photographer engaged by IO. On 23.03.2014, he was called by police for photography as well as video-graphy of recovery proceedings. He along with police officials and some public persons and accused Tinku witnessed the recovery of dead body and head from the area 3 ½ Pusta, Kartar Nagar, New Usmanpur on the pointing out of accused Tinku and clicked the photographs. Crime team officials visited the places of recovery and parts of dead body. Thereafter, dead body was shifted by police for postmortem examination. The photographs Ex.PW2/A-22 to Ex.PW2/A-36 were taken by him. Thereafter, accused Tinku led the police and others to a place near Takshila Public School and pointed out one place near one Keekar Tree and got recovered one iron dav from red colour cloth bag which was used to commit the murder of Inder Pal. He videographed the recovery. Police completed writing work pertaining to recovery of weapon in his presence. He handed over the photographs Ex.PW2/A22 to Ex.PW2/A36 and DVD to police which is Ex.P1.
FIR No. 282/14 5 State Vs.Tinku Singh etc. 16 of 82 6.12.1. During cross examination, it is admitted that lady accused was not with them at the time of recoveries. He took 20 minutes in clicking of photographs of the place of recovery at torso and video- graphy of place of the recovery of head. Bag containing torso was taken out in his presence. He left the place of recovery of head just after completion of videography at about 12.30 P.M. He has no knowledge about the proceedings conducted by police in between 12.30 P.M. to 7.00 P.M being left the place of recovery of head at about 12.30 P.M. Thereafter, he was taken from 4th Pushta, Kartar Nagar to Takshila Model School for recovery of weapon and reached there at about 7.30 P.M. 6.13. PW13 HC Narender has proved the entries of Register No.19 and RC book, as per which, on 23.03.2014, Insp. Jitender Singh deposited two sealed parcels containing exhibits besides personal search articles of accused vide entry is Ex.PW13/1.On 24.03.2014, SI Pankaj Tomar deposited two sealed parcels vide entry is Ex.PW13/2. On 04.04.2014, Insp. Jitedner Singh again deposited five sealed parcels along with sample seal vide entry is Ex.PW13/3. On 17.06.2014, Insp. Jitender deposited one sealed parcel containing mobile phone vide entry Ex.PW13/4. On 20.06.2014, seven sealed parcels were sent to FSL Rohini for analysis through Ct. Sachin along with forwarding letter vide RC Ex.PW13/5 and endorsement in register no.19 Ex.PW13/6. Ct. Sachin delivered AD Ex.PW13/7. On the same day, he sent sealed viscera box along with FIR No. 282/14 5 State Vs.Tinku Singh etc. 17 of 82 sample seal through Ct. Sachin to FSL vide road certificate Ex.PW13/8 and Ct. returned AD Ex.PW13/9. On 09.09.2014, SI Rakesh brought the viscera report which was delivered to IO.
6.14. PW14 SI E. S. Yadav was crime team in charge and visited the spot alongwith Ct. Ajit Singh (photographer) and ASI Rajender Singh (finger prints proficient). He inspected the spot of recovery of torso and one head in decomposed state recovered at the instance of Accused Tinku. He also inspected the rented room of the deceased and adjacent room. IO inspected both the rooms but rooms had been cleaned/washed. He prepared his SOC report Ex.PW14/A. Photographs Ex.PW2/A-1 to Ex.PW2/A-21 to Ex.PW2/A-46 were clicked in his presence. It is admitted that photograph Ex.PW2/A-43 has depicted the space in wall from which one person could pass through from one room to another room.
6.14.1. During cross examination, he has deposed that the torso was wrapped in an orange color printed cloth piece taken out by local police officials in his presence, but he did not put his signatures on the seizure memo pertaining to the recovery of torso and head. No visible injury was noticed on the torso but it was in decomposed state and maggots were present there. Bag of torso was lying in the bushes was early visible may be easily seen to a person who visit near bushes. To take out the torso from the bag, five plastic bags and two jute bags were removed by IO. No blood stains were noticed FIR No. 282/14 5 State Vs.Tinku Singh etc. 18 of 82 on the floor and walls of the rooms. It is further deposed that the rooms were cleaned/washed and it is his observation during visit of spot.
6.15. PW15 HC Shripal Sharma was assigned the investigation of DD No. 26A lodged by Smt Shashi Bala. Carbon copy of missing person form is Ex.PW15/A. On the same day evening, he visited the house of Smt. Shashi Bala and interrogated her and she repeated the same facts as disclosed in DD no.26A. He collected photograph of the missing person Mark PW7/1 and got published hue and cry notice on public places. Copy of hue and cry notice is Ex.PW15/B. He made efforts to search the missing person but no clue could come forward till 22.03.2014. On 23.03.2014, at about 7.00 or 8.00 A.M., relatives of Inderpal namely Dinesh Kumar, Sanjay Kumar along with other persons came to P.S. and disclosed that they had suspicion over Tinku in disappearance of Inderpal. He called Tinku through Ct. Sonu and interrogated him. Tinku disclosed that on 17.03.2014, he along with Shashi Bala committed the murder of Inderpal in his room and throw the dead body in the area of Khajuri Pushta, Yamuna Khadar. He disclosed the facts of the incident to Insp. Jitender Singh and produced Tinku before him. He also verified the aforesaid facts from Tinku. Tinku Singh led police team and got removed one torso wrapped in a yellow red colour cloth piece having flowers from five jute and plastic bags from in decomposed condition. Maggots were present on the body and hands which were FIR No. 282/14 5 State Vs.Tinku Singh etc. 19 of 82 tied from back by white plastic rope. Insp. Jitender Singh prepared rukka Ex.PW1/1 at place of recovery of torso on the basis of DD no.15A and sent to P.S. through Ct. Anil for registration of FIR. IO called crime team. IO prepared site plan of the place of recovery of torso and seized vide seizure memo Ex.PW8/B. Five white plastic bags, two jute bags with orange cloth and rope were also seized by separated seizure memo. Tinku also got recovered the head of the body In the meantime, private videographer Amar Chand Tiwari was also called for videography. Head was in semi decomposed and maggots were present, but body was identifiable. On seeing the head and face, Dinesh Kumar and Sanjay Kumar identified the dead body and claimed to be of Inderpal. Head was taken into possession vide seizure memo Ex.PW8/C. IO prepared joint site plan of place of recovery of torso and place of recovery of head and got removed the dead body to GTB Hospital for postmortem through Ct. Sachin. He was deputed at the place of recovery of head when police team visited the house of deceased. He has identified the jute bag as Ex.P-1 colly, rope used to tie the hands of deceased as Ex.P-2, muddy plastic katta and one polythene bag as Ex.P-3 colly and underwear of deceased as Ex.P-4.
6.15.1. During cross examination, he has deposed that the distance between the place of recovery of torso and head was about 100 meters. Bag containing head was lying into the water. Plastic bag containing head was visible lying in water and Const. Sonu Rathi FIR No. 282/14 5 State Vs.Tinku Singh etc. 20 of 82 took it out. He interrogated accused Tinku orally and produced before Insp. Jitender Singh but did not record his disclosure statement. Accused Tinku led them for recovery of dead body, but accused Shashi Bala was not with them. No public person from the locality was called at the time of recovery, sealing and preparation of document pertaining to recovery. It is admitted that he did not put his signatures as a witness on any seizure memo prepared by IO.
6.16. PW16 HC Sonu Rathi joined the investigation on 23/3/2014 and was directed to secure the presence of accused Tinku before HC Shri Pal for investigation of missing complainant recorded vide DD No-26A. He brought the accused before IO and was interrogated in his presence as well as Sanjay, Dinesh and relatives of deceased who suspected on him. After interrogation of the accused, IO Insp. Jitender Singh constituted a police team to make recovery of the dead body on disclosure by accused that he along with Shashi Bala committed the murder of missing man. He also witnessed the recovery of torso and head of the body at the instance of accused Tinku from the area of 3 ½ pusta. IO seized 5 plastic bags and 2 jute bags and torso vide seizure memo Ex.PW16/A. Head of the body was also recovered which was duly identified by the relatives of the deceased with them. Tinku disclosed that he committed the murder of the deceased on the instigation of the accused Shashi Bala on account of illicit relations between them. They returned back to the spot of recovery of head where HC Shripal was deputed and body FIR No. 282/14 5 State Vs.Tinku Singh etc. 21 of 82 parts were removed to GTB Hospital to preserve for postmortem through Ct Sachin with written request and he was deputed guard to body at mortuary. IO arrested accused Tinku vide arrest memo and personal search memo as Ex.PW16/B and Ex.PW16/C and accused also made his disclosure statement. In pursuance of disclosure statement, accused led to the recovery of weapon / dav from the spot near Titiksha Modern Public School. IO prepared sketch of weapon Ex.PW16/D and seized vide seizure memo Ex.PW16/E. Photographer arranged by the IO took the photographer of the spot as well as recovery. On the same night, SI Pankaj Tomar took the accused Tinku to arrest co-accused Sandeep from Nangloi and arrested him vide arrest papers Ex.PW16/F and Ex.PW16/G. Accused Sandeep made his disclosure statement Ex.PW16/H. Accused Sandeep got recovered T-shirt hanging into the room having blood stains and was seized vide seizure memo Ex.PW16/I. Accused Tinku also got recovered briefcase containing his clothes containing blood stains and worn at the time of committing the murder of the deceased which were seized vide seizure memo Ex.PW16/J. Two photographs of both accused together were also seized vide seizure memo Ex.PW16/K. Accused disclosed that he kept his briefcase in the room of Sandeep as was in process of leaving Delhi.
6.16.1. PW16 has further deposed that on 24/3/2014, at about 7.00 am, IO along with W/Ct. Neetu arrested accused Shashi Bala from FIR No. 282/14 5 State Vs.Tinku Singh etc. 22 of 82 the house of her sister vide arrest papers Ex.PW16/L and Ex.PW16/M. She made disclosure statement Ex.PW16/N. It is further deposed that the accused Shashi Bala disclosed that she had illicit relations with Tinku and her husband used to quarrel with her. It is further deposed that she lodged a false missing complainant with police after committing the murder of the deceased. He has identified all the accused correctly.
6.16.2. During cross examination, he has deposed that HC Shripal interrogated accused Tinku between 11.30 a.m. to 12.30 p.m. on 23.03.2014 at PS in the presence of relatives of deceased. Rukka was prepared at place of incident i.e. ground floor of H. No. K-296, Gali No.5, Gautam Vihar, Delhi. IO did not put any specific identification mark on the aforesaid 7 bags at the time of sealing and seizure. Torso was taken out of 7 bags one after another. He did not notice any injury mark on the torso as it was in decomposed condition and also did not notice any injury mark on the scalp of deceased. Disclosure statement of accused Sandeep was recorded at P.S. Disclosure statement of accused Tinku was recorded at the place of recovery of dead body, but it was not recorded in his presence. He was not aware whether accused Tinku had disclosed the name of accused Shashi Bala in his disclosure statement. No neighbour were called by IO during the visit to the spot of incident. Room of accused Shashi Bala was at ground floor and was found locked, but adjacent room of Shashi bala being used by Tinku was FIR No. 282/14 5 State Vs.Tinku Singh etc. 23 of 82 not found locked and was lying vacant. No house hold articles were available there. No recovery of incriminating articles pertaining to this case was effected from accused Shashi Bala. Nothing incriminating was found in possession of accused Shashi Bala when her personal search was conducted in this case.
6.17. PW17 Ct. Waheed Khan was posted as special messenger and delivered the copies of FIR to Joint C.P., Addl. C.P., ACP and Ld. M.M. on 23.03.2014.
6.18. PW18 Ct. Anil Kumar has deposed that on 23.03.2014, relatives of Inderpal namely Dinesh Kumar, Sanjay Kumar alongwith other persons came to P.S. and met to HC Shripal and shown their suspicion against Tinku in missing of Inderpal. HC Shripal called Tinku through Ct. Sonu and interrogated him. Accused disclosed that on 17.03.2014, he along with Shashi Bala committed the murder of Inderpal in his room and throw the dead body in the area of Khajuri Pushta, Yamuna Khadar. It is further corroborated that accused Tinku got recovered headless body as well as head from two different parts in his presence Maggots were present on the body and body was in decomposed state. Crime team officials also visited the spot and completed the proceedings. IO seized the torso, head and jute and plastic bags at the spot. Private videographer Amar Chand Tiwari videographed the recovery. Dinesh Kumar and Sanjay Kumar identified the dead body IO prepared joint site plan of place of FIR No. 282/14 5 State Vs.Tinku Singh etc. 24 of 82 recovery of torso as well as head. IO prepared rukka at place of recovery of torso on the basis of DD no.15A and handed over to him for registration of FIR. He delivered the rukka and FIR to IO at the spot.
6.18.1. During cross examination, he has deposed that they left to 3rd or 3 ½ pushta at about 12.55 pm. Crime team was called at spot before opening the sack. He did not remember who opened the sack but it was opened by team member. The body was identified by relatives of deceased namely Dinesh and Sanjeev but their statements were not recorded at the spot of recovery of dead body. No weapon was recovered from the spot where dead body was recovered. Crime team inspected the spot inside the house of accused but nothing incriminating could be detected. No weapon was recovered from house of accused. The disclosure statement of accused Tinku was not recorded in his presence. They remained at the spot of recovery of dead body as well as house of accused till 7.15 pm. It is admitted that accused Shashi Bala did not go to the spot along with Police team.
6.19. PW19 Ct. Sachin Khokhar also witnessed the arrival of the relatives of the deceased to PS on 23.03.2014 and interrogation of Tinku who disclosed that on 17.03.2014, he along with Shashi Bala committed the murder of Inderpal in his room and throw the dead body in the area of Khajuri Pushta at Yamuna Khadar. He also FIR No. 282/14 5 State Vs.Tinku Singh etc. 25 of 82 witnessed the recovery of dead body in two parts at the instance of Tinku from jute and plastic bags. He removed the torso and head to GTB Hospital for postmortem examination and got is preserved against application Ex.PW19/B and also remained deputed as guard to the dead body in GTB Hospital till dead body was released to legal heirs. Dinesh Kumar and Mahipal Singh identified the dead body in his presence and IO completed inquest proceedings in his presence. On 24.03.2014, postmortem examination was conducted and dead body was released to Mahipal and Dinesh against receipt Ex.PW7/B. On 04.04.2014, five sealed parcels containing viscera, blood on gauze, ligature material, transparent plastic bag and underwear were delivered to him by mortuary staff and seized by IO vide seizure memo Ex.PW19/A. 6.19.1. During cross examination, he has admitted that Tinku was not present at PS at about 8.00 am on 23.3.2014 but accused Shashi Bala was present there. Accused Tinku was arrested by HC Shri Pal at about 10/11 am at PS after interrogation. Disclosure Statement of Tinku was recorded by IO Insp. Jitender at PS at about 11.00 am but it was not witnessed by him. Before leaving the PS for recovery, disclosure statement of accused Shashi Bala was recorded. They reached to the place of recovery at about 1.00 pm and the distance between the place of recovery of torso and head was about 20-25 meters. Torso and head were identified by Dinesh and Sanjay who were relatives of the deceased Inderpal. Private FIR No. 282/14 5 State Vs.Tinku Singh etc. 26 of 82 photographer came to the spot at about 1.15 pm when parts of dead body were recovered.
6.20. PW20 Insp. Mahaveer Singh has proved the certificate u/s 65B of Indian Evidence Act pertaining to FIR which is already Ex.PW1/4.
6.21. PW21 W/Ct. Neetu joined the investigation on 24.03.2014 with IO and conducted the personal search of accused Shashi Bala. IO arrested her after interrogation from the house of her sister vide arrest memo Ex.PW16/L and personal search memo Ex.PW16/M, but nothing was recovered in her personal search. IO recorded her disclosure statement Ex.PW16/N and she disclosed that she was involved along with co-accused Tinku in committing the murder of her husband Inderpal.
6.21.1. During cross examination, she has deposed that Shashi Bala was interrogated at the house of Sushma and she put her signatures on the disclosure statement of accused there. No neighbour was called at the time of arrest of accused Shashi Bala. She took accused Shashi Bala to Jag Pravesh Hospital for her medical examination.
6.22. PW22 Dr. Neha Gupta conducted the postmortem on the dead body of Inderpal on 24.3.2014. Rigor mortis was passed off stage. Postmortem staining could not be seen due to decomposition.
FIR No. 282/14 5 State Vs.Tinku Singh etc. 27 of 82 Postmortem peeling and busters were present all over the body. Marbling was present. Scalp hair were loose and easily pluckable. Teeth were loose. Maggots were present all over the body and more on the neck. Plastic nylon rope was tied on left hand which was extended to right knee joint below with fixed type of knot. She observed following injuries as under:
1. Wound in the size measuring 4 x 0.5 cm muscles deep present over anterior aspect of left thigh, 18 cm above knee joint with margins and base covered and eaten up by maggots with extravsation of blood present.
2. Wound of size 8 x 0.5 cm bone deep present over the right dorsal arm,12 cm below acromium with margins and base covered and eaten up by maggots.
3. Wound of size 3.5 x 0.5 cm muscles deep present over the right dorsal arm, 1 cm below and lateral to injury no. 2. Margins and base of wound are covered and eaten up by maggots.
4. Wound of size 9.5 x 0.5 cm bone deep present over neutral aspect of right arm, 12 cm below the acromium with margins and base of wound covered and eaten up by maggots.
5 Incised cut threat wound resulting in complete decapitation at the level of C3 and C4 cervical vertebral, 6.5 cm below the chin. Margins of the wound, soft tissues and muscles of the neck at places have been eaten up by maggots. The wound goes cutting the soft tissues and muscles of the neck alongwith clean cut margins of thyroid cartilage and cervical vertebra are present. Major blood vessels are cut. The texture of the skin and degree of decomposition the decapitated segment and trunk correspond to each other.
Time since Death was about one week but cause of death could not be given for the want of chemical analysis of viscera. However on examination of viscera report, it was opined that decapitation of body was present by a sharp edged weapon but, due to putrefaction and FIR No. 282/14 5 State Vs.Tinku Singh etc. 28 of 82 eating away of tissues by maggots, it could not be opined whether the decapitation was ante-mortem or postmortem. Further, the soft tissues of neck had been eaten up by maggots. The viscera report is negative for common poisons. PM report is Ex.PW22/A. Subsequent opinion Ex.PW24/J furnished by her on the basis of viscera report.
6.23. PW23 SI Pankaj Tomar joined investigation on 23.03.2014. He was part of team which made recovery at the instance of Tinku Singh in the presence of Sanjay and Dinesh and other witnessed, but torso could not be identified by Dinesh and Sanjay there, however, Dinesh and Sanjay identified and claimed the dead body by disclosing his name to be Inder Pal after seeing the head of the body. Tinku Singh led to the place of murder i.e. tenanted room but no blood sign was found there. It was told by Tinku that he and wife of deceased Shashi Bala had cleaned up the room as well as place where they had cut off the throat of deceased by a sharp weapon i.e. dav. It was told by house owner that Inder Pal was missing since17.03.2014 and his missing report was lodged by his wife on 20.03.2014. It came into his notice from Shubham that a quarrel had taken place between deceased and his wife on 17.03.2014 in noon hours and Tinku was present on the roof at that time. Accused Tinku went downstairs on hearing the quarrel between deceased and his wife and after some time, accused Shashi Bala came to the roof of the room of Tinku and took her both children from there and thereafter, Inderpal Singh was never seen by him. Accused Tinku FIR No. 282/14 5 State Vs.Tinku Singh etc. 29 of 82 was arrested and made his disclosure statement Ex.PW23/A in which he confessed that he had illicit relations with the wife of deceased and on opposition by Inderpal, he along with his wife Shashi Bala entered into criminal conspiracy to kill him to remove him from their way. It was also told by accused during interrogation that he brought one weapon of offence i.e dav to kill Inderpal and throw dead body with the help of his co-accused Sandeep. Accused Tinku also told that he could get arrested his friend Sandeep from his house and also to get recovered weapon of offence i.e. dav. Accused got recovered dav, but no visible blood mark was noticed on it. IO prepared its sketch Ex.PW16/D and seized it vide pointing out cum seizure memo already Ex.PW16/E. On 24.03.2014, he along with accused Tinku led them to the arrest of co-accused Sandeep from his house and was arrested vide arrest papers Ex.PW16/F Ex.PW16/G and also got recovered jeans pant and shirt from a briefcase (attachee) lying in the room of accused Sandeep. Both accused got recovered clothes worn by them at the time of killing Inderpal, but blood stains were washed of these clothes. Clothes were seized vide seizure memos Ex.PW16/J and Ex.PW16/I. Two photographs of accused Tinku with Shashi Bala were also seized vide seizure memo Ex.PW16/K. IO interrogated accused Sandeep vide disclosure statement Ex.PW16/H. During disclosure statement, it came into notice that all three accused persons were in touch with each other through their mobile phones due to IO collected CDR of mobile numbers.
FIR No. 282/14 5 State Vs.Tinku Singh etc. 30 of 82 6.23.1. During cross examination, he has deposed that headless dead body was not identified by the relatives of deceased and was identified only after recovery of head. Insp. Jitender prepared pointing out memo at the instance of Dinesh and Sanjay. They did not find any blood or other incriminating articles from the room of deceased as the room was cleaned / washed by the accused, however they did not find any cleaning / washing material there. No finger prints could be developed from the spot despite efforts to lift the finger prints. After leaving the spot of recovery of dead body at about 10.30 p.m, they went to Teetiksha Public School, Sonia Vihar and 4-5 Passersby were asked to join investigation but they refused, however no notice was served upon them. Watchman of school was not present at the time of recovery due to he was not called. Teetiksha Public School is situated in the jurisdiction of P.S. Khajuri Khas but local police of PS Khajuri Khas were not called there. The weapon was hid under the bushes near a tree and it was put on the floor. Weapon was hid inside a red cloth bag. The red cloth bag was not visible from distance but it was visible from nearby of bushes. Insp. Jitender picked up the weapon but no blood stains were present on the weapon and even it was not rusted. Finger prints were not lifted from the weapon. Weapon was sealed at the spot itself by IO and recovery memo was written by IO.
6.24. PW24 Insp. Jitender Singh was IO and conducted the investigation. He interrogated accused Tinku Singh who confessed FIR No. 282/14 5 State Vs.Tinku Singh etc. 31 of 82 his guilt of committing the murder of Inder Pal on 17.03.2014 at his house and also that dead body had been thrown in the bushes in area of Yamuna Khadar near 3½ Pusta, New Usmanpur. The dead body was identified by Dinesh and Sanjay to be of Inder Pal. He took into possession of the body parts vide two seizure memos Ex.PW8/B and Ex.PW8/C and got them shifted to the mortuary of GTB Hospital through Ct. Sachin to get preserved for postmortem examination. He along with crime team members and accused Tinku visited the spot of incident but it was found cleaned and nothing incriminating was found there. Tinku Singh disclosed that he pressed the neck of Inder Pal being as directed by his associate Shashi Bala to kill him and thereafter, he cut the neck of Inder Pal by one chopar with the help of Sandeep in night. He inspected the place of murder at the instance of accused Tinku Singh and prepared site plan Ex.PW24/A. He arrested accused Tinku Singh after interrogation and also recovered weapon of offence i.e. dav / chopar used to cut the neck of deceased at the instance of accused. He interrogated landlord Pawan Sharma and tenant Shubham who disclosed that he saw Inder Pal lastly at his house at about 2.00 or 2.30 P.M with his wife and daughters when Shashi Bala went to the house of her sister. He prepared site plan of the place of recovery of torso as well as head which is Ex.PW24/B. He prepared sketch of dav Ex.PW16/D and seized vide seizure memo Ex.PW16/E and also prepared site plan of the place of recovery of dav which is Ex.PW24/C. SI Pankaj Tomar seized the clothes of Tinku and Sandeep containing the blood stains FIR No. 282/14 5 State Vs.Tinku Singh etc. 32 of 82 and also two photographs of accused Tinku with Shashi Bala from a briefcase at the house of Sandeep under his instructions. On 24.03.2014, he searched co-accused Shashi Bala and arrested her with the help of lady Ct. Neetu. He completed inquest proceedings of the deceased on the identification of the dead body by Dinesh and Mahipal. He filled up inquest form Ex.PW24/D and made request for postmortem Ex.PW24/E. He annexed copies of rukka Ex.PW24/F1, FIR Ex.PW24/F2 and carbon copy of application for preservation of dead body with application for post mortem and postmortem examination on the dead body was conducted by Dr. Neha Gupta. Dead body was delivered to legal heirs after postmortem. He collected CDR of four phones recovered from the possession of accused Tinku Singh and Sandeep Singh to ascertain the conversation amongst the accused. He collected CDR of the phone of deceased recovered from accused Sandeep belonged to deceased. He filed CDR with application Ex.PW24/G before the court. Phone number 9711724696 was of deceased. Phone number 8587984625 was being used by accused Sandeep and remaining two numbers 9711401306 and 7827966144 were being used by accused Tinku. Mobile phone no. 9711401306 was recovered out of possession of accused Tinku which was in the name of accused Shashi Bala and from the analysis of phone of accused Tinku Singh and Sandeep it is revealed that on the intervening night of 23- 24.03.2014, Tinku talked to Sandeep to call him at the place of murder. Mobile phone belonged to deceased Inder Pal was treated FIR No. 282/14 5 State Vs.Tinku Singh etc. 33 of 82 as case property and was seized vide seizure memo Ex.PW24/H. During course of trial, he collected viscera report Ex.PW24/I-1 with forwarding letter Ex.PW24/I-2 and placed on record. He also collected subsequent opinion regarding cause of death from Dr. Neha Gupta Ex.PW24/J and placed on record. He collected expert opinions Ex.PW24/K-1 and Ex.PW24/K-2 alongwith forwarding letter Ex.PW24/K-3 and placed on record. He has identified the case property as Ex.P1 to Ex.P10.
6.24.1. During cross examination, he has deposed that on 23.03.2014, he interrogated Tinku till 12:55 P.M. and proceeded from PS at around 12:55 P.M. to Yamuna Khadar against DD No.15A. He recorded disclosure statement of accused Tinku at the place of recovery of torso at around 7:30 P.M but did not record the statements of Dinesh and Sanjay on 23.03.2014. It is admitted that prior to 24.03.2014, three relatives of deceased namely Dinesh, Sanjay and Mahipal did not tell him about accused Shashi Bala. It is admitted that the name of weapon is not mentioned in the request for postmortem examination Ex.PW24/E and even cause of death was also not opined by the doctor on 24.03.2014 being deferred till receiving of chemical analysis of viscera. Doors of the rooms of Shashi Bala and Tinku were separate, but both rooms were connected by a window measuring 2 x 2 fixed about 2 feet above the floor level and no door was affixed on that window. It is admitted that this widow has not been shown in the site plan. Blood was not FIR No. 282/14 5 State Vs.Tinku Singh etc. 34 of 82 noticed on Dav. Public witness was also not joined into recovery proceedings. Dav was sent to FSL examination after 2 - 2 ½ months of the incident as PM report was awaited. Site plans of the spots of recovery of head and torso were prepared by him of his own. It is admitted that the negative of photographs of accused Tinku and Shashi Bala together was not recovered and even statement of photographer was also not recorded as accused did not disclose the name of photographer.
6.25. PW25 Sh. Yogesh Tripathi, Nodal Officer, Reliance Communication has proved the CDR of mobile sim connection no. 7827966144 for the period 15.03.2014 to 25.03.2014 issued against covering letter Ex.PW25/A issued by Sh. Rajiv Sharda. CDR is Ex.PW25/B-1, Ex.PW25/B-2 and Ex.PW25/B-3. Copy of CAF is Ex.PW25/C. The aforesaid connection was allotted to one Santosh Kumar against ID Mark PW25/1. Certificate u/s 65B of Evidence Act is Ex.PW25/D. He has again produced CDR, CAF, ID and certificate u/s 65B of Evidence Act as Ex.PW25/E-1 to Ex.PW25/E-6. It is admitted that Santosh did not meet him when sim connection was issued to him. Location of the tower is mentioned in the CDR Ex.PW25/B-1 and location of the aforesaid phone was in the area of Rao Vihar, Nangloi, Delhi - 41 on 15.03.2014.
6.26. PW26 Israr Babu, Alternate Nodal Officer, Vodafone Mobile has proved the CDR of the phone sim connection No. 9873450278 FIR No. 282/14 5 State Vs.Tinku Singh etc. 35 of 82 for the period from 15.03.2014 to 25.03.2014 with photocopy of CAF of customer Jayanti and certificate u/s 65B of Evidence Act. CAF of connection is Ex.PW26/B-1, ID proof is Ex.PW26/B-2, CDR is Ex.PW26/B-3 and certificate u/s 65B of Indian Evidence Act is Ex.PW26/B-4. The above said documents were provided against letter Ex.PW26/A. He has again produced the CDR, copy of CAF, copy of ID proof and certificate under Section 65B of Evidence Act pertaining to CDR as Ex.PW26/B-5, Ex.PW26/B-6, Ex.PW26/B-7 and Ex.PW26/B-8. He has also proved the CDR of the phone connection No. 9711724696 for the period from 15.03.2014 to 25.03.2014 with photocopy of CAF of customer Inder Pal Singh, certificate u/s 65B of Evidence Act of CDR, CAF which are Ex.PW26/C-1, Ex.PW26/C-2, Ex.PW26/C-3 and Ex.PW26/C-4. He has again produced the copies of CDR, CAF, ID proof and certificate u/s 65B of Evidence Act as Ex.PW26/C-5, Ex.PW26/C-6, Ex.PW26/C-7 and Ex.PW26/C-8. He has further proved the CDR of the phone connection No. 8587984625 for the period from 15.03.2014 to 25.03.2014 with CAF of customer Rakha Devi and certificate u/s 65B of Evidence Act. CAF is Ex.PW26/D-1, ID proof is Ex.PW26/D-2, CDR is Ex.PW26/D-3, Certificate u/s 65B of Indian Evidence Act is Ex.PW26/D-4. Copies of CDR, CAF, ID proof and certificate under Section 65B of Evidence Act pertaining to CDR are Ex.PW26/D-5, Ex.PW26/D-6, Ex.PW26/D-7 and Ex.PW26/D-8. He has further proved the CDR of phone connection No. 9711401306 for the period from 15.03.2014 to 25.03.2014 with photocopy of CAF FIR No. 282/14 5 State Vs.Tinku Singh etc. 36 of 82 of customer Shashi Bala and certificate u/s 65B of Indian Evidence Act. CAF is Ex.PW26/E-1, ID proof is Ex.PW26/E-2, CDR is Ex.PW26/E-3 and certificate u/s 65B of Indian Evidence Act is Ex.PW26/E-4. He has further proved the CDR, CAF, ID proof of customer and certificate u/s 65B of Evidence Act as Ex.PW26/E-5, Ex.PW26/E-6, Ex.PW26/E-7 and Ex.PW26/E-8. Cell ID chart for the phone connections is Ex.PW26/F.
7. I have heard the arguments and perused the record. This case is based upon the circumstantial evidence and none of the witness is an eye witness to the incident. To judge a case based upon the circumstantial evidence, the law laid down in Sharad Birdhi Chand Sharda Vs. State of Maharastra, 1984 4 SCC 116 is material. This case has laid down five golden principles to ascertain the guilt of accused by completing the chain of circumstances. The principles laid down by the Court are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
2. The facts show established should consistent only with the hypothesis of guilt of accused, that is to say they should not be explainable on any other hypothesis except that the accused is guilty.
3. The circumstances should be of a conclusive nature and tendency
4. They should excluded every possible by except the one to be proved, and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
FIR No. 282/14 5 State Vs.Tinku Singh etc. 37 of 82 These five golden principles constitute the punchsheel of proving of a case based upon the circumstantial evidence. Since this case is also based upon the circumstantial evidence and is to be seen as to whether prosecution has successfully proved this chain of circumstances to establish the guilt of accused persons or not.
8. The murder of the deceased Inderpal was committed within the four corners of the house in possession of both accused and the other portion was in occupation of another tenant namely Shubham. PW10 Pawan Sharma was the owner of the entire premises and let out different rooms to Inderpal as well as Shubham. Pawan has proved that the deceased along with his wife Shashi Bala and two daughters had been residing in the two room accommodation and Shubham was residing in another room at first floor. He has further proved that accused Tinku also started residing with deceased and Shashi Bala in one of the rooms let out to the deceased under the recommendation of Shashi Bala. PW11 Shubham has also corroborated this fact that accused Shashi Bala and deceased along with their daughter and accused Tinku Singh had been residing in the same premises. PW11 has further proved the presence of both accused and deceased together on the day of incident on 17/3/14 which was the day of festival Holi.
9. However, before proceeding further to consider the facts proved by PW11, it is necessary to decide the objection of the Ld. Defense FIR No. 282/14 5 State Vs.Tinku Singh etc. 38 of 82 Counsel that there is no evidence on record that Pawan let out premises to deceased as well as accused and witness Shubham. It is argued that in the absence of any documentary evidence regarding payment of rent or execution of rent agreement between landlord and tenants, it could not be proved that the deceased, accused and Shubham were the tenants in the premises or the premises belonged to Pawan and their evidence are of no use to determine the guilt of the accused. However, this argument has been strongly opposed by Ld. APP for State.
10. Admittedly, a tenanted premises may be let out to anyone on the basis of an oral tenancy also and such type of tenancy is very well recognized by Section 105 & 106 of Transfer of Property Act, 1882, due to it is not a ground to dispute the presence of Shubham in the tenanted premises. Even there is no legal bar to accept or make the payment of rent in cash without issuance of rent receipt. A separate procedure has been prescribed in Rent Act to secure the rent receipt in case of any dispute of such receipt between landlord and tenant, but there is no legal compulsion that rent receipt has to be issued against the payment of the rent by landlord. If there is no legal bar to let out the premises orally or payment of rent without rent receipt, then the tenancy of witness Shubham also cannot be disputed by accused merely because he has failed to produce the rent agreement or rent receipt or police have not seized it. All the police team members have duly proved that PW10 and PW11 were FIR No. 282/14 5 State Vs.Tinku Singh etc. 39 of 82 examined during the investigation and they have also stood by their testimonies before this court despite cross examination and there is no reason to disbelieve this part of investigation. PW10 & PW11 were interrogated during investigation and their statements u/s 161 Cr.P.C. were also recorded which are already on record and accused have not proved any material on record that both the witnesses were not residing in the premises or Pawan was not the landlord of the accused or Shubham was not tenant. The examination of the both witnesses is part of investigation and Section 114 (e) and (f) of Indian Evidence Act have prescribed that the judicial and official acts have been performed regularly and a common course of business has been followed in particular cases. Both of these presumptions are sufficient to conclude that both the witnesses were examined during the course of investigation and objection of Ld. Defense Counsel cannot brush aside their testimonies just by taking a lame excuse without any material evidence to disprove these presumptions.
11. Now come to the facts deposed by the PW11 Shubham who is the witness who saw and heard the deceased Inderpal and accused together on the day of incident. He has deposed that on the day of Holi on 17/3/2014, in noon hours, he saw deceased Inderpal, his family and Tinku in two rooms of ground floors and deceased was under the influence of liquor. He heard a quarrel for about 15 minutes between the deceased and his wife Shashi Bala on the FIR No. 282/14 5 State Vs.Tinku Singh etc. 40 of 82 issue of consuming liquor when he was going to take a bath and accused Tinku Singh was at first floor with both daughter of Inderpal at that time. It is further deposed that he left his room at about 3.00 pm, but by that time deceased was with the accused persons. Though this witness has deposed that he never heard any quarrel between the deceased and accused Shashi Bala earlier, yet has proved that the deceased was with the accused lastly on 17/3/14 and thereafter he was found missing and dead. The accused were supposed to tender an explanation as where accused went away from their last company and presumption of Section 106 of Evidence Act would come into play. This presumption also become strong by lodging of the DD No-26A Ex.PW3/I by Shashi Bala as per which deceased went missing on 18/3/2014, whereas missing complainant was lodged on 20/3/2014, but she neither gave any description of her quarrel with deceased nor disclosed thereafter to police. Rather she left the premises to the house of her sister Sushma on the same day. PW HC Shri Pal was assigned this complainant and has also supported the contents of this DD entry along with W/SI who lodged it. In fact, the presence of the deceased with the accused persons on the day of missing has been concealed by her.
12. Further, this offence was committed within the four corners of the house and any independent or direct witness was not possible as only both accused were the only witness of the incident and evidence against them is to be appreciated only by the way of FIR No. 282/14 5 State Vs.Tinku Singh etc. 41 of 82 circumstances. PW11 was residing in the same premises and knew the accused and deceased very well and heard the quarrel between them for about 15 minutes which is a considerable time to recognize the voice and ascertain the identity of accused and deceased. He saw deceased in the house prior to it also. Section 3 of Evidence Act has interpreted a fact which includes "anything, state of things, or relation of things, capable of being perceived by the senses; any mental condition of which any person is conscious". Illustration (b) that a man heard or saw something, is a fact, has cleared this interpretation. As such, a quarrel between the accused and deceased heard by the PW11 is material fact to prove the presence of the deceased with accused Shashi Bala as well as Tinku Singh at the time of incident on the occasion of Holi as disclosed in the missing complaint which is Ex.PW3/I. On the other hand, accused have not disputed this fact that on the day of Holi they were not with the deceased or that no such quarrel had taken place between them as heard by the PW11.
13. Since last company of the accused with deceased has been established by the PW11 in the same room and the presumption of section 106 of Evidence Act is very well applicable against the accused. Section 106 of Evidence Act is as under:
[Section 106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
FIR No. 282/14 5 State Vs.Tinku Singh etc. 42 of 82 Illustrations
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket on him.] This section provides, inter alia, that when any fact is especially within the knowl-
edge of any person the burden of proving that fact is upon him.
The Hon'ble Supreme Court of India had occasion to deal with the presumption of section 106 of Indian Evidence Act in State of Rajasthan v. Thakur Singh VI (2014) SLT 260 where death of wife was unnatural and witnesses turned hostile. The burden of proof was fixed upon the accused to explain the death of his wife took place within the four corner of the house. Prior to it, the Hon'ble Supreme Court of India had interpreted this section in Shambhu Nath Mehra v. State of Ajmer, 1956 SCR 199 that the section is not intended to shift the burden of proof (in respect of a crime) on the accused but to take care of a situation where a fact is known only to the accused and it is well high impossible or extremely difficult for the prosecution to prove that fact. It was observed by the court as under:
"This [section 101] lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve if of that duty. On the contrary, 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 knowl- edge of the accused and which he could prove without difficulty or inconvenience. The work "especially"
stresses that. It means facts that are pre-eminently or FIR No. 282/14 5 State Vs.Tinku Singh etc. 43 of 82 exceptionally within his knowledge. It the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than that he whether he did or did not."
14. In another case titled Jagdish v. State of Madhya Pradesh, (2009) 9 SCC 495 the Hon'ble Supreme Court has observed that:
"it bears repetition that the appellant and the deceased family members were the only occupants of the room and it was therefore incumbent on the appellant to have tendered some explanation in order to avoid any suspi- cion as to his guilt."
15. The observation of the Hon'ble Supreme Court made in State of West Bengal v. Mir Mohammad Omar, (2000) 8 SCC 282 is also relevant. The court cited an example to explain the principle behind section 106 of the Evidence Act in following words:
"During arguments we put a question to learned senior counsel for the respondents based on a hypothetical illustration. If a boy is kidnapped from the lawful custody of his guardian in the sight of his people and the kidnappers disappeared with the prey, what would be the normal inference if the mangled dead body of the boy is recovered within a couple of hours from elsewhere. The query was made whether upon proof of the above facts an inference could be drawn that the kidnappers would have killed the boy. Learned Senior Counsel finally conceded that in such a case the inference is reasonably certain that the boy was killed by the kidnappers unless they explain otherwise."
16. In view of the above said interpretation of the presumption of Section 106 of Evidence Act, the burden of proof to prove the fact FIR No. 282/14 5 State Vs.Tinku Singh etc. 44 of 82 establishing the guilt of the accused does not dispense with by the prosecution, however the prosecution may not prove these facts which are exclusively within the knowledge of the accused and the burden to rebut this presumption has been put upon him. If the facts established the case to raise a presumption against the accused, then the failure to discharge this presumption would cost the accused. In this case also, PW11 Shubham has proved that the accused and deceased were within the four corner of the room where a quarrel had taken place between them and thereafter deceased was found missing and later on murdered. The occupants of the house i.e. accused Shashi Bala left the house with her daughters and accused Tinku Singh also vacated the room on next day and this fact has proved that they were lastly in the company of the deceased and it was not possible to the deceased to go any- where without the knowledge of the occupants. Shubham and Mahipal have proved that the deceased was not habitual drunker and was not in habit of leaving the house under the influence of liquor earlier due to the conduct of the accused to avoid the search of the deceased cannot be justified and is blameworthy. It is very strange that Shashi Bala kept mum till 20/3/14 to lodge the complaint and that was lodged with concealment of the actual date of his missing i.e. 17/3/14 and it was disclosed as 18/03/14. As such, this date was disclosed deliberately just to conceal the incident taken place on 17/3/14 to escape the last togetherness of the accused with deceased. As such, accused have failed to tender any explanation FIR No. 282/14 5 State Vs.Tinku Singh etc. 45 of 82 as to where deceased went if he was lastly in their company and adverse inference is bound to be drawn against them and shall be presumed that deceased was with the accused soon before his death.
17. Further, PW16 has deposed that he called accused Tinku Singh to PS under the direction of HC Shri Pal as Mahipal and Dinesh showed their doubt on him in the missing of deceased. PW7 and PW8 have duly corroborated this fact. They have also deposed that Shashi Bala also disclosed to police in their presence that Inderpal was murdered by them. Accused Tinku also confessed his guilt before the police and led to the recovery of the dead body of deceased in two parts. This recovery has been proved by PW7, PW8, PW12, PW14, PW15, PW16, PW23 and IO. IO lodged a DD No15A before departure to the place of recovery and the contents of this DD have also proved that accused disclosed about the recovery of the dead body which followed by the recovery of torso and head of the deceased from the area of 3 ½ pushta vide packed in plastic and jute bags which were also seized vide seizure memos Ex.PW8/B, Ex.PW8/C and Ex.PW16/A. IO prepared the site plan of the place of recoveries of torso and head which is Ex.PW24/B. This dead body was duly identified by the PW7 and PW8 at the spot of recovery being identifiable. Torso was identified by burn mark on the hand which is very well pointed out in missing report Ex.PW3/I itself. Though the police witnesses have admitted during cross FIR No. 282/14 5 State Vs.Tinku Singh etc. 46 of 82 examination that torso was not identified prior to recovery of head, yet the photographs and missing complaint have duly proved that deceased had such burn sigh on his hand by which he was identified. Even otherwise the recovery of the head duly identified has also proved that the head belonged to Inderpal. Not only this, one dav / chapper was also recovered at the instance of accused from the area near Titiksha Modern Public School which was seized vide seizure memo Ex.PW16/E and is Ex.P7. The site plan of the place of recovery is Ex.PW24/C. Photographs and DVD of this re- covery has been proved by witness Ami Chand Tiwari who also wit- nessed this recovery. SOC report Ex.PW14/A has also corroborated it. In fact, this recovery is very material evidence against the ac- cused, but Ld. Defense Counsel has disputed this recovery thereby submitting that this recovery is not admissible u/s 27 of Evidence Act as the accused was not arrested by the time of such recovery and recovery is of no use. Though this argument has no force, yet before deciding this argument, it is necessary to go through the legal propo- sition regarding it.
18. The law pertaining to the information by accused during police custody has been summarized in Anter Singh v. State of Rajasthan (2004) 10 SCC 657 as under:
"16. The various requirements of the section can be summed up as follows:
1. The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of FIR No. 282/14 5 State Vs.Tinku Singh etc. 47 of 82 relevancy. The relevancy of the fact discovered must be established according to prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
2. The fact must have been discovered.
3. The discovery must have been in consequence of some information received from the accused and not by the accused's own act.
4. The person giving the information must be accused of any offence.
5. He must be in the custody of a police officer.
6. The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
7. There upon only that portion of the information which related distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."
19. It is further held in State of Maharashtra v. Damu (2000) 6 SCC 269 that:
"35. The basic idea embedded in section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or no exculpatory in nature, but if it results in discovery of a fact it becomes reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum."
In view of the above said law laid down, it stands proved that to make any fact / information admissible u/s 27 of Evidence Act, person furnishing information must be an accused for some offence and such information must be made during police custody and FIR No. 282/14 5 State Vs.Tinku Singh etc. 48 of 82 leading to some discovery or recovery of a new fact or information connecting to the offence. In this case, a DD No-26A had been lodged regarding missing of deceased by accused Shashi Bala and HC Shri Pal was investigating this DD when accused Tinku was apprehended. He confessed his guilt of murdering the deceased and led to the recovery of his dead body in two parts from two places. This information was definitely relevant and led to the recovery of dead body and information is very well admissible under Section 27 of Evidence Act which is considered a proviso of Section 25. The dead body was recovered at the instance of the accused Tinku during police custody vide seizure memo Ex.PW8/B and Ex.PW8/C and this recovery has been duly proved by the photographer of the crime team as well as in-charge who prepared SOC report besides relatives of deceased accompanied with police team. Private photographer also witnessed this recovery and also prepared CD and photographs. All such evidence has proved beyond doubt that the recovery of the dead body was at the instance of accused Tinku Singh and is incriminating evidence.
20. Ld. Counsel for the accused has argued that the recovery of dead body at the instance of the accused was not reliable as the dead body was beyond identification and even was made in the absence of the public persons. In support of his arguments, Ld. Defense Counsel has relied upon case titled Mustkeem @ Sarajudden v. State of Rajasthan (2011)3 RCR Criminal 766, FIR No. 282/14 5 State Vs.Tinku Singh etc. 49 of 82 Vijay Thakur v. State of Himachal Pradesh 2014(4) RCR Criminal 389, Radhey Shyam v. State NCT of Delhi, 2013 CRI.L.J. 2426, Prakesh v. State of Karnataka, 2014(3) RCR Criminal 744 and Shakalu v. State, 2009 (5) RCR (Criminal) 940 (Delhi). This argument of Ld. Defense Counsel has been strongly opposed by Ld. APP for State thereby submitting that the recovery of dead body has been duly proved by the recovery witnesses and was duly identified by PW7 and PW8 at the spot itself due to this argument has no force.
After going through the arguments and material available on record, I am of the opinion that this argument of Ld. Defense Counsel has no substance. Though the judgment titled Mustkeem @ Sarajudden v. State of Rajasthan, (2011)3 RCR Criminal 766 relied upon by the Ld. Defense Counsel has relevancy on the point of law, yet not applicable in the facts of this case. The observation of the court is as under:-
"27. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies upon the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under section 27 of the Act is the information leading to discovery and not any opinion formed on its prosecution. The court relied upon the case titled Varun Chaudhary v. State of Rajasthan AIR 2011 SCC 72 that if FIR No. 282/14 5 State Vs.Tinku Singh etc. 50 of 82 the recovery memos were prepared at the police station itself, then the same would lose its sanctity."
The above said observation of the court has no dispute with regard to the recovery of the articles in pursuance of disclosure and also their use to prove the guilt of the accused. However, this judgment is not applicable in the fact of this case on many grounds. In the case relied upon, the recovery of articles was not dead body and even seizure memos of recovered articles were also prepared at PS, whereas in this case, all the witnesses have duly proved that the entire written work with regard to the recovery of dead body was completed at the spot itself. PW7 and PW8 have also proved this recovery. Not only the memos were prepared at the spot but also the entire recovery proceedings were also photographed as well as video graphed by the crime team and private photographer Ami Chand Tiwari. As such, this recovery has left no room of doubt that dead body was recovered at the instance of Tinku.
21. Further, the case titled Vijay Thakur v. State is also not applicable in the facts as the same deals with the recovery of chunni, ribbon, wrist watch and jacket of deceased and even recovery was with delay of about 6 months due to it was not considered relevant. However, in this case, the facts are altogether different and the recovery of the articles is the dead body of the deceased as well as weapon of offence and the recovery is also prompt and on the same day of receiving of information from FIR No. 282/14 5 State Vs.Tinku Singh etc. 51 of 82 accused. As such, facts of both cases are altogether different and judgment of the Ld. Defense Counsel is not applicable.
22. Contrary to the judgments relied upon by the Ld. Defense Counsel, it is held in Shanti Devi v. State of Rajasthan, (2012) 12 SCC that :
17. The subsequent factum of recovery of the body of the deceased at the instance of the appellant was on other strong circumstance against the appellant in roping her involvement in the elimination of the deceased and thereby providing no scope for any other hypothesis other than her guilt in the killing of the deceased. The other recoveries made from the body of the deceased duly identified by PW2 was yet another relevant circumstances to show that the deceased was none other than the father of PW2 and husband of PW1.
26. Having regard to the clinching circumstances found proved against the appellant with the ultimate discovery of the body of the deceased at the instance of the appellant herself, who had the exclusive knowledge on the special factor, if the death of the deceased was due to any other cause the best person who could have explained could have been the appellant alone. In the circumstances, the conclusion was inescapable that the appellant was squarely responsible for the death of the deceased and the contention to the contrary made on behalf of the appellant cannot, therefore, be countenanced.
23. It is further held in Chunda Murmu v. State of W.B., (2012) 5 SCC 753 that:
FIR No. 282/14 5 State Vs.Tinku Singh etc. 52 of 82
16. From the evidence of the investigating officer it is also clear that the statement of the accused leading to the recovery of dead body was made while he was in custody and the same was in the presence of police officers, though, at that time some other persons were also present in the police station.
The recovery of dead body, therefore, is a fact which is admissible in evidence under Section 27 of Evidence Act, 1872. The absence of identification of the accused by PW15 at the time of recovery of the dead body, according to us, will not affect the core of prosecution case.
In view of the above said judgments, it stands proved that the recovery is dead body of the deceased at the instance of accused Tinku is very well admissible against the accused and is also much more sever circumstance than recovery of any other article. Accused has failed to tender any explanation to this recovery and he shall be recovered assailant.
24. Even otherwise, the recovery of the dead body is relevant u/s 8 of Evidence Act even if not relevant u/s 27 of Evidence Act as held in Prakash Chand v. State (Delhi Administration) (1979) 3 SCC 90 after referring the decision of Himachal Pradesh Administration v. Om Prakesh (1972) 1 SCC 249. The observation of the court is as under :
There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police Officer in the course of an investigation which is hit by FIR No. 282/14 5 State Vs.Tinku Singh etc. 53 of 82 section 162 of the Criminal Procedure Code. What is excluded by section 162, Criminal Procedure Code is the statement made to a police officer in the course of investigation and not the evidence, relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a police officer during the course of investigation. For Example, the evidence of the circumstance, simpliciter, that an accused person led a police officer and pointed out the place where stolen articles or weapon which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under section 8 of the Evidence Act, ir- respective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act."
In fact, such recoveries at the instance of accused duly proved against accused being relevant u/s 8 as well as 27 of Evidence Act.
25. Further, accused was supposed to tender an explanation to this recovery and also the suspicious circumstances which render this recovery doubtful but in the absence of any explanation, this recovery is very strong circumstance to prove the guilt of the accused. Similar proposition has laid down in Anuj Kumar Gupta v.
State of Bihar (2013) 12 SCC 383 as under:
18. In such circumstances, in the absence of any convincing explanation offered on behalf of the appellant-accused as to under what circumstances he was able to lead the police party to the place where the dead body of the deceased was found, it will have to be held that such recovery of the dead body FIR No. 282/14 5 State Vs.Tinku Singh etc. 54 of 82 which is very clinching circumstance in a case of this nature, would act deadly against the appellant considered along with rest of the circumstances demonstrated by the prosecution to rope in the appellant in alleged crime of the killing of the deceased. Therefore, once we find that there was definite admission on behalf of the appellant by which the prosecution agency was able to recover the body of the deceased from a place, which was within the special knowledge of the appellant; the only other aspect to be examined is whether the appellant came forwarded with any convincing explanation to get over such admission. Unfortunately though the above incriminating circumstance was put to the appellant in the section 313 Cr.PC questioning where he had an opportunity to explain, except a mere denial there was no other convincing explanation offered by him.
As such, the absence of the furnishing any explanation by the accused, the involvement of the accused stands proved.
26. Besides it, the statement of the accused u/s 25 of the evidence act is also relevant to some extent and cannot be discarded in entirety. The portion of the statement which is not confessionary regarding confession of guilt of the accused to commit offence excluded by Section 25 and 26 of the Evidence Act is relevant. The observation of the Hon'ble Supreme Court made in Bheru Singh v. State of Rajasthan (1994) 2 SCC 467 is material as under:
19. From a careful perusal of this first information report we find that it discloses the motive for the murder and the manner in which the appellant committed the six murders. The appellant produced the bloodstained sword with which FIR No. 282/14 5 State Vs.Tinku Singh etc. 55 of 82 according to him he committed the murders. In our opinion the first information report Ex.P-42, however is not wholly confessional statement, but only that part of it is admissible in evidence which does not amount to a confession and it is not hit by the provisions of section 25 of the Evidence Act. The relationship of the appellant with the deceased; motive for commission of the crime and the presence of his sister-in-law PW11 do not amount to the confession for committing any crime. Those statements are non confessional in nature and can be used against the appellant as evidence under section 8 of the Evidence Act. The production and seizure of the sword by the appellant at the police station which was bloodstained, is also saved by the provisions of the Evidence Act. However, the statement that the sward had been used to commit the murders as well as the manner of committing the crime is clearly inadmissible in evidence. Thus, to the limited extent as we have noticed above and save to that extent only the other portion of the first information report Ext. P42 must be excluded from evidence as the rest of the statement amounts to confession of committing the crime and is not admissible in evidence.
27. It is further held in Sandeep v. State of UP, (2012) 6 SCC 107 that admissible portion of the confession of accused may be considered against accused and the relevant observation of the judgment is as under:
52. We find force in the submission of the learned Senior Counsel for the State. It is quite common that based on admissible portion of the statement of the accused whenever and wherever recoveries are made, the same are admissible in evidence and it is for the accused in those situations to FIR No. 282/14 5 State Vs.Tinku Singh etc. 56 of 82 explain to the satisfaction of the court as to the nature of recoveries and as to how they came into possession or for planting the same at the places from where they were recovered. Similarly, this part of the statement which does not in any way implicate the accused but is mere statement of facts would only amount to mere admissions which can be relied upon for ascertaining the other facts which are intrinsically connected with the occurrence, while at the same time, the same would not in any way result in implicating the accused in the offence directly.
As such, the recovery of the dead body is very well beyond doubt and the remaining portion which has proved that he throw the dead body after severing his head in the area wherefrom it was recovered is very well admissible and relevant and is material evidence against the accused.
28. Similar to the recovery of dead body, recovery of weapon i.e. dav / chopper was also made in pursuance of disclosure statement of accused Tinku Ex.PW23/A from a spot near Titikishi Modern Public School which was seized vide seizure memo Ex.PW16/E after preparation of its sketch Ex.PW16/D. This recovery has been proved by SI Pankaj Tomar, Ct. Sonu and IO Insp. Jitender Singh. IO prepared the site plan of the place of the recovery of this weapon which is Ex.PW24/C. This recovery is definitely admissible u/s 27 of Evidence Act being made in pursuance of statement u/s 25 of Evidence Act in similar manner as of the recovery of dead body. The cross examination of all the above said recovery witnesses has FIR No. 282/14 5 State Vs.Tinku Singh etc. 57 of 82 failed to create any doubt on the recovery of this weapon.
29. However, Ld. Counsel for the accused has argued that the use of the weapon is supposed to be proved by the prosecution to connect the accused to the offence and without proving this fact the conviction of the accused cannot be ascertained but, in this case it has not been done by the prosecution and accused is entitled for the benefit of doubt. However, again this argument has no force. Weapon Ex.P7 was sent to FSL for examination after recovery and MHC(M) has proved that it was duly deposited with him after recovery by the IO in sealed condition and was also sent to FSL. FSL report which is Ex.PW24/K1 and examined this weapon as exhibit-9 i.e. metallic chopper detected human blood on it as per Ex.PW24/K2, but blood group could not be detected on this weapon. PW22 Dr. Neha Gupta conducted the post mortem on the dead body and observed 5 injuries on the person of deceased and Injury no-5 i.e. "Incised cut threat wound resulting in complete decapitation at the level of C3 and C4 cervical vertebral, 6.5 cm below the chin. Margins of the wound, soft tissues and muscles of the neck at places have been eaten up by maggots. The wound goes cutting the soft tissues and muscles of the neck along with clean cut margins of thyroid cartilage and cervical vertebra are present. Major blood ves- sels are cut. The texture of the skin and degree of decomposition the decapitated segment and trunk correspond to each other." This injury which was major was possible to be caused by this sharp edged FIR No. 282/14 5 State Vs.Tinku Singh etc. 58 of 82 weapon Ex.P7 as well. The subsequent opinion Ex.PW24/E has also corroborated with fact. Though cause of death could not be given due to purification of body and also as to whether injury was anti-mortem or post mortem as the soft tissues were eaten up by maggots, but this report is also not negative that the injuries on the body were not possible to be caused by this weapon. The use of weapon to sever the body parts could not be ruled out and the ac- cused has not tendered any explanation to this recovery of weapon and also as to how the human blood came on this weapon detected during the FSL examination. Similarly, the accused has also not of- fered any explanation to this recovery during the evidence or his statement u/s 313 Cr.P.C. and it shall be presumed that the same weapon was used by accused to cut the head of the deceased as disclosed during the disclosure statement of the accused and its use stands proved.
30. So far the cause of death is concerned, it is held in case titled Shanti Devi v. State of Rajasthan (2012) 12 SCC 158 that the subsequent factum of recovery of the body of the deceased at the instance of the appellant was on other strong circumstances against the appellant in roping her involvement in the elimination of the deceased and thereby providing no scope for any other hypothesis other than her guilt in the killing of the deceased. It is further held that since the dead body was recovered in a decomposed state, it was quite natural that the doctor could not specifically state as to the FIR No. 282/14 5 State Vs.Tinku Singh etc. 59 of 82 nature of injury on the body of the deceased. In such circumstances, the cause of death by subsequent opinion is not fatal as argued by Ld. Defense Counsel. Even the absence of blood stains on the weapon of offence is also not fatal to the case to connect the weapon to the commission of offence as held in Shanti Devi v. State of Rajasthan (2012) 12 SCC 158. Similarly, in this case, if the dead body of the deceased was putrefied, then it was not possible to give any specific opinion about the cause of death or nature of injuries or time of death and the approximate time of death given by the PW22 about 7 days prior to PM stands proved and connected to the ocular evidence of the PW11.
31. The purpose of the evidentiary value of medical evidence has been discussed in Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484 that ordinarily the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defense can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whosoever of injuries: taking place in the manner alleged by eye witnesses, the testimony of eye witnesses cannot be thrown out on the ground of alleged in consistency between it and the medical evidence. As such, the medical evidence is to be read in FIR No. 282/14 5 State Vs.Tinku Singh etc. 60 of 82 consent with the ocular evidence and the court cannot substitute its decision just on the basis of the medical opinion as held in A.N. Venkatesh and Another v. State of Karnataka, (2005) 7 SCC 714.
32. Now comes to the other recoveries made at the instance of accused. The clothes of the accused Tinku and Sandeep were recovered by SI Pankaj during the investigation from the house of accused Sandeep comprising of jeans and shirt of Tinku and Sandeep which were worn by the accused at the time of beheading the deceased. These clothes were seized vide seizure memo Ex.PW16/J and identified before this court as Ex.P5 (colly.). T-shirt of Sandeep was also seized vide seizure memo Ex.PW16/I and identified as Ex.P6. Both the sets of the clothes were sent to FSL for DNA examination. The report Ex.PW24/K-1 has proved that the clothes exhibit-1 (a) & (b) detected human blood during examination as per Ex.PW24/K-2. The result of DNA examination has proved that the clothes of Tinku Singh and Sandeep corroborated to the blood stains extracted from the blood of the deceased as exhibit 4 i.e. blood on gauze. This result has also proved that the accused washed his clothes but still found containing the blood stains of the deceased and this recovery was in consequence of disclosure state- ment and admissible u/s 27 of the Evidence Act. As such, it is also a material and incriminating evidence against the accused. Accused have not tendered any explanation to this incriminating evidence as to how the blood of the deceased was found on their clothes recov-
FIR No. 282/14 5 State Vs.Tinku Singh etc. 61 of 82 ered at their instance from the house of co-accused Sandeep and it is also an incriminating evidence that Tinku committed the murder of the deceased and disposed off the dead body. The other articles like jute bags and other plastic bags and rope were also seized along with the dead body but no blood group was detected on those arti- cles, but non detection of the blood stains on these articles is not fa- tal to this case as recovery is beyond doubt and could not be dis- puted. This recovery is also in pursuance of information under Sec- tion 25 of the Evidence Act and is incriminating against the accused. As such, all the recoveries have proved the connection of the ac- cused to the murder of the deceased.
33. Ld. Counsel for the accused has further argued that the time of death of deceased is also not ascertained and it is fatal to this case. However, this argument has no substance To prove the time of death of deceased, PM report Ex.PW22/A prepared by PW22 Dr. Neha Gupta is material. As per PM report, time since death was about one week at the time of conducting the post mortem which started on 24.3.14 at 12:00 pm and concluded at 01:00 PM. Accused has not denied this timing of death. In fact, the murder took place about one week prior to the time of conducting PM which comes to about 12:00 am on 17/3/2014. It has held in Baso Prasad v. State of Bihar, (2006) 13 SCC 65 that medically time of death may not be given scientifically and precisely but it may be in approximation. Approximation always has some variation which may be minus or FIR No. 282/14 5 State Vs.Tinku Singh etc. 62 of 82 plus of some hours which may be determined with the help of ocular evidence. It is also held in A.N.Venkatesh and Another v. State of Karnataka, (2005) 7 SCC 714 that the timing of death given by the doctor is broadly an estimated time and too much reliance cannot be place on the time of death given by the doctor when the dead body was decomposed and examined after two days. As such, the absence of cause of death and nature of injuries sustained by the deceased are not fatal to the case. However, in the present case, time of death is in terms of the opinion of the postmortem doctor i.e. 7 days and also in terms of the deposition of PW11 when he saw and heard the deceased quarreling with the accused Shashi Bala and Tinku Singh.
34. So far arrest of accused persons is concerned; it is not disputed at all. Accused Tinku Singh was arrested vide arrest papers Ex.PW16/B and Ex.PW16/C. Accused also made disclosure statement Ex.PW23/A which led to the recovery of the weapon of offence as well as dead body and his blood stained clothes of accused as already discussed herein above. Shashi Bala was arrested vide arrest papers Ex.PW16/L and Ex.PW16/M. She made her disclosure statement Ex.PW16/N. Sandeep was arrested vide arrest memo Ex.PW16/F and Ex.PW16/G. He made his disclosure statement Ex.PW16/H and it led to a recovery of briefcase containing the clothes and photographs of the accused Tinku and Shashi Bala and also clothes worn at the time of incident. No specific defect has FIR No. 282/14 5 State Vs.Tinku Singh etc. 63 of 82 been pointed out in the arrest of the accused except the argument that accused have been falsely implicated which has no substance, but the recoveries at the instance of accused have already been dis- cussed and found credible. As such, the arrest of the accused stands proved beyond doubt with their involvement.
35. Ld. Counsel for the accused has further argued that the recoveries were affected in the absence of the public persons due to recoveries are defective. However, this argument has no substance. The recovery of dead body was made in the presence of PW7 and PW8 who were the relatives of the deceased. The other recoveries were made in the presence of police official who are also competent witnesses as held in Ajmer Singh v. State of Haryana (2010) 3 SCC 747, Ram Swaroop Singh v. State (Govt. Of NCT of Delhi) (2013) 14 SCC 235 and Karamjeet Singh v. State AIR 2003 SC 35 that the police witnesses are competent witnesses and are at par to the other witnesses and their testimonies cannot be discarded merely being them to be the police witnesses. These recoveries are also not fatal in view of Amarjeet Singh v. State of Punjab 1995 SUPP.(3) SCC 217 and Gurjinder Singh v. State of Punjab (2011) 2 SCC 530 that the delay in recovery is not fatal and even recovery made by police officials in the absence of public witness from an open place within personal knowledge of the accused is not fatal.
FIR No. 282/14 5 State Vs.Tinku Singh etc. 64 of 82
36. Besides it, IO has tendered an explanation that he tried to join the public persons at every step of investigation but non agreed. Police have only option to join the public persons but cannot compel to public person to join them mandatorily during investigation. In fact, it is not easy to join the public persons in investigation until and unless they have any interest in dispute. The Hon'ble Supreme Court of India has dealt with this tendency of the public in Appabhai v. State of Gujrat 1988 Supp SCC 241 and observed as under:
"Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate; but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The court, however, must bear in mind that witnesses to a serious crime may not react in normal manner. Nor do they react uniformly. The horror-stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be ordinary type in the normal circumstances. The court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner".
FIR No. 282/14 5 State Vs.Tinku Singh etc. 65 of 82 In view of this law, it stands proved that the non-joining of the public witnesses is not always deliberate or fatal to the case.
37. Further, Ld. Counsel for the accused has argued that the prose- cution has not proved any evidence on record except the disclosure statement of the accused as to what was the motive of the accused to commit this offence and it is fatal to this case. The Hon'ble Supreme Court of India in Mulakh Raj v. Satish & Ors, 1992 Cri.L.J. 1529 and Sooguru Subrahmanyam v. State of A.P., IV (2013) SLT 428 has laid down that motive lost significance where the circumstances have proved the involvement of the accused. In this case, the prosecution has proved that the circumstances against ac- cused that accused were alone with the deceased at the time of inci- dent and there was no other person who could have done it. The confession of the accused recorded by the police during custody be- yond his confession to guilt may be considered being not barred by section 25 of the Evidence Act and also relevant u/s 8 of the Act. The motive of the offence though is not necessary to be proved by the prosecution, yet may be proved by the confession statement of both the accused especially the confession of Shashi Bala who has not made any such statement which is hit by Section 25 of the Evidence Act as held and ascertained in Bheru Singh v. State of Rajasthan (1994) 2 SCC 467. In the present case also, the motive of the crime was the illicit relationship between both the accused and this fact may be proved with the help of the photographs mark PW7/2 and FIR No. 282/14 5 State Vs.Tinku Singh etc. 66 of 82 mark PW7/3 which were seized at the instance of accused from the house of co- accused Sandeep vide seizure memo Ex.PW16/K. The photographs have proved that both the accused are together and are in such a manner in which two common friends may not be.
38. Though Ld. Defense Counsel has argued that these photographs could not be proved in the absence of their negatives, yet the same are relevant for two reasons. Firstly these photographs were recovered during police custody and are relevant u/s 8 and 27 of the Evidence Act, Secondly these photographs were not got clicked by the prosecution and were in possession of the accused and negatives were definitely within the knowledge of the accused. IO has explained this circumstance that accused did not co-operate to disclose the name of the photographer to seize the negatives or to record his statement. If the negatives were in the possession of the accused, then the police were not supposed to seize or prove the negatives being in the personal knowledge of the accused. Even otherwise these photographs were put to the accused during SA but they have not specifically denied due to these photographs are sufficient to prove the motive behind the crime. The motive of the accused is also proved by the conduct of the accused that Shashi Bala introduced Tinku Singh to landlord and allowed him to reside in the same room despite being married and also did not put any door on the window connecting both rooms and compromised privacy of the family and this conduct is not natural otherwise every married FIR No. 282/14 5 State Vs.Tinku Singh etc. 67 of 82 couple maintain privacy in house. Accused also vacated the room immediately on next day of incident and shifted to the house of his friend Sandeep and was also planning to flee from Delhi and Shashi Bala also left her house with her daughters and did not return till police apprehended her. All such circumstance have proved that the motive confessed by the accused is in terms of their disclosure statement and stands proved.
39. Further, this case of the prosecution is mainly based upon the testimony of PW11 Shubham and Ld. Defense Counsel has argued that it is not safe to convict the accused by relying upon the testimony of a single witness. However, PW11 is an independent witness of the prosecution and there is no reason to discard his testimony without pointing out of any discrepancy in his statement. The Hon'ble Supreme Court of India has divided the reliability of witnesses in three categories as held in Vadivelu Thevar v. State of Madras AIR 1957 SC 614 as under:
i. Wholly reliable.
ii. Wholly unreliable. and iii. Neither wholly reliable nor wholly unreliable. In the first category of proof, the court should have no difficulty in coming to its conclusion either way, it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its FIR No. 282/14 5 State Vs.Tinku Singh etc. 68 of 82 conclusion. It is in the third category of cases that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. In view of the above said law, it stands proved that single witness is sufficient to prove the guilt of the accused and PW11 Shubham was the material witness to prove the last togetherness of the deceased with accused and there is no reason to disbelieve his testimony being testimony of an impartial witness.
40. Ld. Counsel for the accused Shashi Bala has argued that there is no evidence or circumstance against her which proves her involvement with accused Tinku due to she is entitled for benefit of doubt. However, the argument of the Ld. Counsel has no force. The main circumstances against the accused are as under:
40.1. The main circumstance against the accused Shashi Bala is her proximity with accused Tinku Singh. Landlord has proved that she introduced accused to him and got inducted as tenant in the same premises used by her family, whereas he was neither her relative nor being liked by her husband and this conduct pre-plan of the accused to commit incident.
FIR No. 282/14 5 State Vs.Tinku Singh etc. 69 of 82 40.2. She had utmost proximately with Tinku Singh and this fact has been proved by the photographs Marks PW7/2 and PW7/3 seized at the instance of Tinku from his briefcase. Though it is not the main circumstance against the accused, yet it is a connecting link between them, especially when they had an open and door less window between their rooms by which a person could easily pass through as observed by the police during investigation and also proved by photographs. This fact has also corroborated the case of the prosecution.
40.3. PW11 Shubham saw and heard the accused and deceased together on the day of incident and they had fight with each other.
She was the only person with whom the deceased was seen lastly besides Tinku Singh and thereafter his dead body was found at the instance of accused Tinku and she failed to rebut this presumption.
40.4. She left the house soon after the quarrel with deceased thereby leaving deceased with Tinku Singh as also proved by PW11. Deceased was under the influence of liquor on the occasion of Holi and thereafter he was not seen by anyone. The Hon'ble Supreme Court has held in Bodhraj v. State of J&K (2002) 8 SCC 45 that the last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibil- ity of any person other than the accused being the author of the FIR No. 282/14 5 State Vs.Tinku Singh etc. 70 of 82 crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. PW11 has duly proved that both the accused were in the last company of the deceased and thereafter he was found murdered. The time of death ascertain by this court with the help of post mortem report has corroborated the same time when deceased was in the company of both accused and they were supposed to prove that deceased left their company and without proving it, they have failed to rebut this presumption of Section 106 of Evidence Act and prove their involvement.
40.5. Shashi Bala was well aware about the presence of the de- ceased at her home with Tinku Singh being left at the time of leaving the house with her daughters to the house of her sister, but still she did not bother to know the whereabouts of the deceased and deliber- ately concealed this information. She did not show her suspicion on anyone at the time of lodging missing complaint vide DD No-26A, whereas Tinku Singh was the first suspect with whom deceased was left and this conduct of the accused proved that she was in con- nivance of accused Tinku in committing the murder of the deceased.
FIR No. 282/14 5 State Vs.Tinku Singh etc. 71 of 82 40.6. The conduct of the accused Shashi Bala is also questionable on other angle also. She was well aware that deceased was left by her at the with Tinku Singh under the influence of liquor but she made a false complaint with police vide DD No-26-A just to mislead the police and to assist accused Tinku Singh. Even it is assumed for the sake of arguments that she was not aware about the where- abouts of the deceased, then it is also beyond explanation if the deceased was with her in the room on 17/3/14 and went missing, then why she made complaint with police on 20/3/14 after a delay and it also indicates her guilty mind to assist co-accused.
40.7. The conduct of the accused is also not upto mark on other as- pect also. Her husband was missing but still she did not bother to search him and kept on residing with her sister. Even the missing complaint was also lodged on the insistence of her relatives and this conduct is not natural. Even the fact about her quarrel with deceased as proved by PW11 was also concealed by her throughout inquiry of missing complaint and till arrest. It is also incriminating.
40.8. PW8 and PW7 have deposed that accused made an extra judicial confession before them as well as police team in PS. Though extrajudicial confession is of a weak kind of evidence and is not reliable without corroboration, yet this confession is material in view of other circumstances. Accused was not in police custody at the time of making such statement police were only making enquiry to FIR No. 282/14 5 State Vs.Tinku Singh etc. 72 of 82 unroll the mystery of missing of the deceased. Ld. Counsel for the accused has argued that this extra-judicial confession is not reliable and has relied upon Shakalu v. State (Delhi) (DB) 2009 (5) RCR (Criminal) 940. However, this judgment is not applicable on the facts. The accused Shashi Bala was not in police custody by that time when she made this confession in the presence of PW7 and PW8 that she had fight with the deceased and pushed him and his head struck against wall and she left the room thereby asking to accused to commit the murder of the deceased, whereas in the case relied upon by the Ld. Defense Counsel, accused was in judicial custody after arrest and was taken to the doctor for medical examination where he made extra judicial confession before doctor. As such, the facts of both cases are separate and distinguishable. This extra-judicial confession, though was made in the PS, yet in the presence of two public witnesses and was without any force or pressure. Accused has disputed this fact that she had no fight with the deceased specifically and this fact stands proved that accused Shashi Bala firstly had fight with deceased and instigated the co- accused Tinku to commit the murder of the deceased and immediately left the house to the house of her sister to give an opportunity to Tinku to commit the murder of the deceased and to dispose off the dead body.
40.8.1. Further, the judgment titled Chhittar Singh v. State of Rajasthan 1994 CRI.L.J. 245 is also not applicable as in that case FIR No. 282/14 5 State Vs.Tinku Singh etc. 73 of 82 the extra judicial confession of the accused pertaining to causing the injuries on the head and other body parts were not corroborated by the medical evidence and there was no other evidence against the accused except extra judicial confession whereas in this case prosecution has also proved many other circumstances also against the accused and judgment is not applicable in this case.
40.9. Accused Shashi Bala tried to mislead the police thereby stating that deceased was missing under the influence of liquor whereas he was not habitual drunker as deposed by Shubham and Mahipal. She also informed to PW7 Mahipal about the similar infor- mation despite knowing to be false. This conduct of the accused has proved her involvement to the incident and conduct is not of an inno- cent person.
40.10. The room in possession of the accused and deceased was the spot of incident where struggle between the accused and de- ceased took place, but police team as well as crime team members have proved that the spot of incident was cleaned after the incident. It is beyond explanation as to who cleaned the spot of incident if not accused who was in exclusive possession of the spot. The dead body was beheaded in that room itself and blood was supposed to be found there, but the cleaning of the room in possession of ac- cused removed all incriminating evidence and it was not possible without the involvement of accused Shashi Bala. This circumstance FIR No. 282/14 5 State Vs.Tinku Singh etc. 74 of 82 is material against the accused but accused has not tendered any explanation to this circumstance during evidence. Rather no cross examination has been conducted to this effect and amounts to ad- mission.
40.11. Two photographs of Shashi Bala and Tinku Singh were recovered but accused has not tendered any explanation to this recovery and the circumstances under which those photographs were clicked but has disputed only for the want of negatives of which explanation has been tendered by IO due to it is also an incriminating evidence against her.
40.12. The disclosure statement of the accused Shashi Bala Ex.PW16/N may be considered as admission regarding her relation- ship with accused Tinku Singh and quarreled with the deceased during which her head was struck and thereafter she asked co-accused to kill and disposed off his dead body in terms of Bheru Singh v. State of Rajasthan (1994) 2 SCC 467 and this statement is not hit by section 25 of Evidence Act and has proved that she assisted and instigated the co-accused to commit the murder of deceased and is liable for committing the act in furtherance of common intention with co accused Tinku Singh.
40.13. The recovery of the dead body and blood stained clothes of the accused Tinku Singh coupled with recovery of the weapon of FIR No. 282/14 5 State Vs.Tinku Singh etc. 75 of 82 offence and expert evidence have duly proved that the conduct of the accused that he was the associate of the accused Tinku and instigated him to commit the offence and she is equally liable for the murder of the deceased.
40.14. The confession of co-accused Tinku Singh and recovery in pursuance of disclosure statement at his instance are relevant facts against this accused also in terms of section 30 of Evidence Act as she has been facing trial with co-accused jointly for the same offence.
40.15. In fact, all the abovesaid circumstances against this accused coupled with the evidence against co-accused Tinku Singh have duly proved that she is also liable by the virtue of Section 34 of IPC to commit the murder of deceased for which she has been charged.
41. Ld. Counsel for the accused has further argued that the prosecution is bound to prove the case against the accused beyond doubt and the discrepancy in the statement of the witnesses has proved that the prosecution has failed to prove this case against accused beyond doubt. However, the argument of the Ld. Counsel has no substance. The observation of the Hon'ble Supreme Court is material that the benefit of doubt is not the symbolic doubt but it must be material. This aspect was dealt with in AIR 2003 SC 3609 titled State of Punjab v. Karnail Singh and observed in Para 12 as FIR No. 282/14 5 State Vs.Tinku Singh etc. 76 of 82 under:
"exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby de- stroying social defense. Justice can not be made sterile on the plea that it is better to let hundred of guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law as held Gurbachan Singh v. Satpal Singh & Ors. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial: if a case has some flaws in evidence because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guide- line, is not fetish- A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties".
In view of this law, it stands proved that the benefit of doubt is not imaginary and it should be fair in nature but, where the prosecution has duly proved the involvement of the accused, then it cannot be discarded for the sake of benefit of doubt. As such, accused is not entitled for the benefit of doubt for such minor contradictions which are not going to effect the core issue of the charges.
42. Besides it, Ld. Counsel has taken a number of defenses which are trivial in nature and are not be considered as the prosecution is FIR No. 282/14 5 State Vs.Tinku Singh etc. 77 of 82 not bound to consider each and every plea of the accused. The observation of the Hon'ble Supreme Court is relevant here. It has been held in Sucha Singh & Anr. v. State of Punjab, 2003 7 SCC 643 that the prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out the evidence in the case if a case is proved perfectly, it is argued that it is artificial; if a case has come inevitable flaws because human beings are prone to err, it is argued that it is too imperfect. The present case is one where there is no trace of doubt that all the circumstances complete the chain and singularly lead to the guilt of the accused persons. Similar proposition has been followed in Jagroop Singh v. State of Punjab, V 2012 SLT 508. As such, all the major defences have been dealt with by this court including motive and contradictions in the testimonies of PWs but are not found creditworthy and accused have no defense at all. Prosecution has proved beyond doubt that accused Shashi Bala and Tinku Singh committed the murder of the deceased who was impediment in their illicit relations and they are liable for the same.
43. So far the judgments of the Ld. Counsel for the accused titled Radhey Shyam v. State of NCT of Delhi 2013 CRI.L.J. 2426 is concerned, it is not applicable in the facts, as in that case accused therein was not in fit mental state for interrogation but still the recov-
FIR No. 282/14 5 State Vs.Tinku Singh etc. 78 of 82 ery was effected at his instance which was not found reliable, but in this case facts are not so. Even there are no injuries on the person of the accused as were in that case to prove the use of violence against accused to extract information.
43.1 Similarly, the judgment titled Debapriya Pal v. State of West Bengal (SC) 2017 (2) JCC 986 deals with the statement made be- fore the police which has already been discussed. Even in that case the blood group of the deceased on the blood stained clothes was not found sufficient to connect the accused, but in this case the blood group of the deceased is already on record and even DNA report has also prepared on the basis of such blood stains and corrobo- rated the same. This judgment is also not applicable in the facts of this case.
43.2. Even the judgment titled Jagat Sarkar v. State of West Ben- gal (Calcutta) (DB) 2014 (5) RCR (Criminal) 674 is also not appli- cable. In that case, FIR was lodged on the basis of the accused which was considered as confession and was barred u/s 25 of Evi- dence Act, but in this case, only DD No. 26A was lodged by the ac- cused Shashi Bala and it was defect on which basis the investigation was instituted due to it cannot considered as the confession of the accused that she committed the murder of the deceased and judg- ment is not applicable.
FIR No. 282/14 5 State Vs.Tinku Singh etc. 79 of 82 43.3. Further, Prakesh v. State of Karnataka 2014(3) RCR (Criminal) 744 is also not applicable as in that the blood group of the accused and deceased was similar which was found on the clothes of accused and was not distrinuishable to connect the accused. Similarly, the recovered steel rod containing blood stains was also not sent to FSL to ascertain the blood stains, but in this DNA of the articles has been conducted and corroborated to the blood of deceased. As such, the facts of that case are not applicable on the facts of this case.
43.4. Last judgment relied upon by the accused is Dr. Rajesh Talwar And Another v. CBI dated 19 July 2013 (Allahabad) on the point of DNA examination and the procedure to be followed, but again this judgment is not applicable here as accused have not disputed DNA report in this case. Rather report is admissible in evidence u/s 293 Cr.P.C and there is no reason to discard it. In fact, all the judgment are not applicable on the facts of the case.
44. Though accused Tinku Singh is also liable u/s 201 IPC for disposing off the dead body of deceased Inder Pal for causing disappearance of material evidence with intention to screen himself as well as co-accused Shashi Bala despite knowing, yet no charge has been framed against accused under this section due to he cannot be convicted and now it is belated stage to frame such additional charge. As such, no finding to this effect is required.
FIR No. 282/14 5 State Vs.Tinku Singh etc. 80 of 82
45. So far the identity of accused persons is concerned, it is not disputed and both the parties were known to each other. Public wit- nesses were also relatives of deceased as well as accused and they have duly proved the identity of accused as assailants beyond doubt. Even otherwise, it is not the defence of accused during entire trial and identity of accused established beyond doubt.
46. So far the involvement of the accused Sandeep is concerned, there is only two circumstance against him. Firstly his shirt is containing blood of deceased and same was recovered at his in- stance but there is no evidence that he was with the co-accused Tinku Singh to dispose off the dead body of deceased. He was nei- ther seen at the house of the deceased with the accused by anyone nor thereafter. Secondly, mobile phone of deceased has recovered from him but one briefcase beside mobile phone was also recovered on his house and it was put by Tinku Singh being planning to leave Delhi and it may not be ruled out that the mobile phone might have put by Tinku as well. Even the mobile phone in the name of co ac- cused Shashi Bala was also recovered out of the possession of Tinku Singh and there is only possibility or doubt that the mobile phone of deceased might have been kept by him after disposing off dead body but there is no evidence against him except his disclosure statement. The charges against the accused are pertaining to Section 201 IPC, but in the absence of any direct or indirect evidence, it is not possible to prove the offence that accused FIR No. 282/14 5 State Vs.Tinku Singh etc. 81 of 82 Sandeep assisted Tinku Singh to remove the evidence to screen him from lawful punishment. The case of Tinku and Shashi Bala is different in comparison to him and he is not liable u/s 201 IPC.
47. Keeping in view of the facts and circumstances of the case, I am of the considered opinion that the prosecution has successfully proved that accused Shashi Bala and Tinku Singh committed the murder of Inder Pal in furtherance of their common intention and they are liable and convicted u/s 302/34 IPC. Accused Shashi Bala furnished a false information of missing of deceased deliberately despite knowing and believing to be false and with intention that the police would use their lawful power to cause injury and annoyance to someone else during investigation of missing of deceased and is liable for the offence u/s 182 IPC, hence convicted. However, prosecution has failed to prove the charges against the accused Sandeep, accordingly, he is acquitted u/s 201 IPC.
Announced in open court (Devender Kumar)
Today on 23.09.2017 Addl. Sessions Judge-03 (NE)
Karkardooma Court/Delhi
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