Delhi District Court
State vs . Rajesh @ Rawan S/O Kishan Lal on 20 February, 2010
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IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01/SOUTH
PATIALA HOUSE COURT/NEW DELHI
SESISONS CASE NO. 581/2006
State Vs. Rajesh @ Rawan S/o Kishan Lal
R/o 9/226, Dakshin Puri, New Delhi
FIR No. 581/2006
Police Station Ambedkar Nagar
Under Section 411 IPC
ORDER ON SENTENCE
By my judgment dated 16/02/2010, the accused Subhash and
Rajesh acquitted of the charges under Sections 302/201/34 IPC
framed against them. However, accused Rajesh is proved to be found
in possession of the mobile phone belonging to deceased Sanjay. He
was found guilty of the offence under section 411 IPC and was
convicted as such.
Ld. Addl Public Prosecutor has argued for deterrent
punishment against accused Rajesh, keeping in view the serious
nature of the crime committed by them.
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Learned Counsel for the accused Rajesh has argued that
accused Rajesh remained in custody during investigation and the trial
for more than 1½ years. He is the sole bread earner of his family and
he is not a previous convict. So, lenient view may be taken against
him.
I have heard learned Additional Public Prosecutor and learned
Counsel for the accused and have gone through the record of the
case and the relevant provisions of law carefully.
Nominal rolls of the accused Rajesh were also called from Jail
according to which the accused Rajesh was admitted to jail on
27/7/06 and was released on bail on 13/12/07. Therefore, accused
remained in custody for more than one year and four months.
Keeping in view the offence proved against the accused Rajesh he is
sentenced to the period of imprisonment/detention already undergone
by him during investigation and trial of this case , as provided under
section 428 Cr.P.C.
Judgment 16/2/2010 and this order on sentence be sent to
server(www.delhidistrict courts. nic.in). Copy of judgment and order
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of sentence be supplied to convict/accused free of cost.
File be consigned to record room.
Announced in the
open court on 20/02/2010
( S.K. SARVARIA )
Additional Sessions Judge-01, South
Patiala House Courts/New Delhi
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IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01/SOUTH
PATIALA HOUSE COURT/NEW DELHI
SESISONS CASE NO. 581/2006
State Vs. (1) Subhash S/o Santosh
R/o 3/581, Dakshin Puri, New Delhi.
(2) Rajesh @ Rawan S/o Kishan Lal
R/o 9/226, Dakshin Puri, New Delhi
(3) Pawan S/o Kishan
R/o 9/296, Dakshin Puri, New Delhi
(Facing trial in Juvenile Justice Board)
(4) Pradeep Kumar S/o Veer Narain
R/o 3/631, Dakshin Puri, New Delhi
(Facing trial in Juvenile Justice Board)
FIR No. 581/2006
Police Station Ambedkar Nagar
Under Section 302/201/34 IPC
Initial Date of Institution
in Sessions Court 14/11/2006
Date of Institution in this Court 02/06/2009
Date when arguments
were heard 12/01/2010, 01/02/2010 and
08/02/2010
Date of Judgment 16/02/2010
JUDGMENT
5 The SHO of police station Ambedkar Nagar has challaned the accused persons to face trial for the commission of offences punishable under Section 302/201/34 IPC. The learned Metropolitan Magistrate in compliance of provisions under Section 207 Cr.PC. supplied the copies of documents to the accused persons and committed the case to the Court of Sessions for their trial by invoking Section 209 CrPC.
BRIEF FACTS The prosecution case, in brief, is that on 26/07/06, SI V.P. Singh alongwith complainant Shri Pitambar Chamolis arrived in the Police Station Ambedkar Nagar alongwith inquest papers of deceased Sanjay Nautiyal and produced the same to SHO, Police Station Ambedkar Nagar. During the inquest proceeding the complainant has stated that he was working as waiter in New Delhi. Deceased Sanjay Nautiyal was his nephew and he was residing with him for the last about one year and working in the Trade Track Cargo, Jamroodpur. On 07/07/06 at 9 AM, he went to his duty. He came back at about 12 night, kept his belongings and went back. 6 Thereafter, he did not return. In this regard, a missing report was lodged at Police Station Ambedkar Nagar. The dead body of Sanjay was recovered in a drain at Sector-5, Pushp Vihar. They went to AIIMS and identified the dead body of Sanjay. Later on Shri Asha Ram informed him that four boys namely Subhash, Rakesh, Pawan and Pradeep had beaten Sanjay near small bridge (Puliya), Block No. 3, Dakshin Puri and they took the body of Sanjay. He suspected that all the above four persons had murdered Sanjay and dumped his body in the drain near Sector 5, Pushp Vihar, Police Station Malviya Nagar, New Delhi. The inquest was also containing the letter of SHO, Police Station Malviya Nagar for investigation of the matter and SHO, Police Station Ambedkar Nagar as the dead body was recovered as the incident occurred in the area of Police Station Ambedkar Nagar. During the investigation inspector Sandeep Byala came to know that SI V P Singh had got conducted the postmortem of the deceased from AIIMS, in which Autopsy Surgeon had preserved the exhibits i.e. viscera and sternum bone of the deceased. the Autopsy Surgeon kept the opinion for cause of death pending till the receipt of report of 7 chemical analysis of viscera and diatom test from the FSL. Thereafter, the investigating officer visited the spot, i.e., drain at Sector - 5, Pushp Vihar (where the dead body was recovered) and prepared the site plan on th pointing out of inquiry officer SI V P Singh. He also prepared the site plan of the place where the deceased was beaten i.e. near Block No.3, Dakshin Puri on the pointing out of Asha Ram. Statement of witness Asha Ram s/o Brahma Nand resident of 3/672, Dakshin Puri, New Delhi was recorded u/S 161 CrPC.
During the investigation accused Rajesh was arrested who made disclosure statement that he had illicit relations with one Renu @ Bangalan for the last one year, but for the last two months she was avoiding him. He also came to know that Renu was having relation with the deceased Sanjay Nautiyal, about which he felt bad and planned for his murder. On 07/07/06, he along with his friends namely Pawan, Subhash and Pradeep (Jevenile) spotted the deceased at Puliya Ganda Nala near Block No. 3, Dakshin Puri. They all had beaten him brutally with fist blows and killed him. In the 8 meantime, one Asha Ram r/o Block No.3, Dakshin Puri reached the spot and noticed them in killing the deceased. On this, Subhash and Pradeep ran away from the spot, and Rajesh @ Pawan along with Pawan @ Ponga picked up the deceased's body on Pawan's scooter and dumped body in the drain of Sector - 5, Pushp Vihar. Accused Rajesh @ Rawan was arrested. On pointing out of accused Rajesh @ Rawan, Mobile phone of the deceased was recovered and taken into possession through a seizure memo. Accused Rajesh @ Rawan also pointed out the place of occurrence as well as the place where they dumped the dead body. Accused Pawan @Ponga was arrested. Accused Pawan @ Ponga was also interrogated in this case and he supported the version of accused Rajesh @ Rawan. Accordingly, the scooter No. DL 3S 0775 make Bajaj was recovered and taken into police possession through the seizure memo by police. Accused Subash and Pradeep were also arrested and supported the versions of the above said accused persons. The exhibits from Police Station Malviya Nagar were collected and same were deposited in the Malkhana of Police Station Ambedkar Nagar. On 30.08.06, the 9 viscera was deposited with the FSL, Rohini for Chemical Analysis. The scaled maps of both the spots were also got prepared from the draughtsman. During the investigation, investigating officer recorded the statements of witnesses. Thereafter, the accused persons were challaned for the offences under Sections 302/201/34 IPC, as referred before.
It is pertinent to note that accused Rajesh and Subhash are facing trial before this court and the other two accused Pradeep and Pawan are facing trial before Juvenile Justice Board. CHARGES AND PLEAS OF THE ACCUSED PERSONS:
Prima facie case for the offences punishable under Sections 302/34 IPC and 201/34 IPC was made out against the accused Subhash and Rajesh @ Rawan. Accordingly joint charges were framed against the accused Subhash and Rajesh @ Rawan on 21/03/2007 to which they pleaded not guilty and claimed trial.
Accused Pradeep and Pawan @ Ponga are facing trial before Juvenile Justice Board.
PROSECUTION WITNESSES 10 In support of its case, prosecution examined 23 witnesses in all.
Their statements in nut shell are being discussed below:-
PW1 is Ct. Ram Kishan. He has stated that on 25/08/06, as per direction of the investigating officer he went to Police Station Malviya Nagar and MHC(M) of Police Station Malviya Nagar handed over him one purse of black colour containing UTI Bank ATM Card, one DL, one sealed box containing viscera and two sample seals vide RC No. 62/21. He brought them to Police Station Ambedkar Nagar and handed over it to MHC(M). During his possession the seals were intact and were not tampered.
PW2 is Ct. Hazari Lal. He has stated that on 30/08/06, as per direction of investigating officer he took one sealed pulanda and one sample seal vide RC 125/27 for depositing at FSL Rohini. He took the FSL and deposited the same to FSL and came to the Police Station and handed over the receipt copy to MHC(M). He stated that during his possession the seals were intact and were not tampered.
PW3 is Amit Kumar who used to run his shop under the name and style of Amit Autos. He deal in sale and purchase of old scooters 11 and motorcycles on commission basis. He has stated that on 24/02/06 at about 11.30 AM he had sold scooter No. DL 3 SQ 0775 to one Kishan Lal son of late Sh. G Dass r/o 9/297, Dakshin Puri, Delhi. He had handed over the original papers of the said scooter to Kishan Lal. He had handed over photocopies of all the documents to the police and police seized the same vide memo Ex.PW.3/A. He also identified the signatures of purchaser Kishan Lal and the copy of documents are Ex.PW.3/P1 to P7.
PW4 is SI V P Singh, Security Police Line, New Delhi. He has stated in brief that on receipt of DD No. 18, Police Station Malviya Nagar copy of which is Ex.PW.4/A, he alongwith HC Rajender and Ct. Sis Ram went to Sector 5, Ganda Nala, Pushp Vihar where he found SHO and Addl. SHO of Police Station Malviya Nagar already present there. ACP Hauz Khas also arrived there. he found the dead body of a young man inside Ganda Nala. The dead body was taken out. Dead body was not identified till evening hence it was sent to mortuary AIIMS. In the evening, the dead body was identified to be that of Sanjay Nautiyal. On 10/07/06, inquest proceedings were 12 conducted by him. Postmortem over the dead body was got conducted. After the postmortem, the dead body was handed over to the relatives of the deceased.
During inquiry, one Pitamber Chamoli came to PP Pushp Vihar and he recorded his statement Ex.PW.4/B. From his statement, it was found that Police Station Ambedkar Nagar was having jurisdiction over the case. Hence after discussing with senior officers, he went to Police Station Ambedkar Nagar along with forwarding letter of SHO, Malviya Nagar and handed over the forwarding letter, statement, inquest proceeding and other papers to SHO Police Station Ambedkar Nagar.
After registration of FIR he accompanied the investigating officer to the spot and he prepared site plan of the spot at his instance. His statement was recorded by the investigating officer.
PW5 is HC Kishan Lal who was working as Duty Officer on 26/07/06 and has proved the copy of the FIR Ex.PW.5/A. PW6 is SI Jeet Singh who has stated, in brief, that on 26/03/06 he was posted at Police Station Ambedkar Nagar. On that day he 13 had joined investigation of this case. He accompanied investigating officer and SI V P Singh to the spot and as per the pointing out of SI V P Singh, investigating officer prepared site plan. The complainant Pitamber was also with them. He accompanied them to the spot. One Asha Ram met them there. He also joined the investigation with them. He accompanied the police team near Ganda Nala and pointed out the spot and told investigating officer that he had seen the quarrel between deceased and accused persons. Thereafter they went to 9/296, Dakshin Puri, Delhi. Accused Pawan (being tried in Juvenile Court) was arrested and his personal search was conducted and his disclosure statement was recorded by the investigating officer. Thereafter scooter No. DL 3S 0775 was recovered from accused Pawan, as per his disclosure statement seizure memo was prepared. Scooter was seized vide memo Ex.PW.6/A. Accused Pawan took the policeteam to house of acused Rajesh and as per his pointing out accused Rajesh then present in the court was apprehended and his personal search was conducted vide memo Ex.PW.6/B. He was interrogated and his disclosure statement 14 Ex.PW.6/C was recorded. He got recovered one mobile make Nokia from his house which was seized vide seizure memo Ex.PW.6/D. Thereafter both the accused took the police team to the house of accused Subhash and as per their pointing out accused Subhash then present in the court was arrested and his personal search was conducted vide memo Ex.PW.6/E. Accused was interrogated and his disclosure statement was recorded vide memo Ex.PW.6/F. All the accused persons took the police team to the place of incident and pointing out memos Ex.PW.6/G and Ex.PW.6/H were prepared. Accused persons had also pointed out the spot where they had dumped the dead body of the deceased. The pointing out memos to that place is prepared which is Ex.PW.6/I. The witness identified accused Subhash and Rajesh then present in the court and stated that he can identify accused Pawan and Pradeep being tried by juvenile court.
PW7 is Ct. Jairaj Kumar who was posted as Constable on 08/07/06 in PCR and was working as duty constable in No. 100. He recorded the message in PCR form and immediately sent it to 15 wireless control room. He had brought original PCR form. Photocopy of which is Ex.PW.7/A. PW8 is Data Ram. He has stated that on 26/07/06 he was posted as SHO in Police Station Malviya Nagar. On that day, SI V P Singh, discussed this case with him and told him that jurisdiction of this case was falling at Police Station Ambedkar Nagar. He put up before him statement of Pitamber Chamoli and other inquest papers. He immediately wrote a forwarding letter and directed SI V P Singh to hand over all the papers relating to this case to SHO, Police Station Ambedkar Nagar. He had seen the forwarding letter in judicial file and same is Ex.PW.8/A. PW9 is SI Mahesh Kumar, the Draftsman who prepared the scaled site plan of the place where the dead body of the deceased was found as Ex.PW.9/A. He also prepared rough site plan at the spot at the pointing out of investigating officer and later on prepared scaled site plan Ex.PW.9/B. PW10 is Pitamber Chamoli, the maternal uncle of the deceased. He has stated that on 07/07/06, he was on night duty at the hotel 16 Touch of Class, Sainik Farms. Sanjay Nautiyal deceased was his nephew i.e. son of his sister. He used to reside with him for the last about one year. When he came from his duty at about 3.45 AM after performing his night duty, he did not find Sanjay present inside the room. Deceased Sanjay used to go to his friends or relatives so he did not bother about his absence.
When he went to hotel on his duty he made telephone calls to him on his mobile but the same was found switched off. He made telephone calls to his relatives. However, he could not be traced. Thereafter he lodged missing report with police.
On 08/07/06 at about 6 PM, investigating officer came to him and informed that a dead body has been recovered in the area of Pushp Vihar near Malviya Nagar. He along with investigating officer reached Police Post Pushp Vihar along with photo of deceased. On seeing the photo, SHO Inspector Data Ram found that the photo was of the dead body recovered. Thereafter, he along with polie reached at AIIMS and identified the dead body of the deceased there.
He was not aware as to who had committed murder of 17 deceased. When PW Asha Ram came, he informed him that a quarrel had taken place of deceased with accused Subhash, Rajesh, Pawan and one more person whose name he did not remember.
This witness was cross examined on behalf of the State as he was resiling from his earlier statement. In the cross examination he admitted that he had told to the police in his statement Ex.PW.4/B that deceased Sanjay had come to the room at about 12 night and had gone leaving the articles there. He also admitted that on 26/07/06 PW Asha Ram had told him that he had seen a quarrel between Sanjay and accused Pawan, Subhash, Rakesh and Pradeep and accused Rakesh and Pawan had removed him in a two wheeler scooter and accused Subhash and Pradeep ran away from the spot. He also admitted that he had joined the investigation with police and on that day PW Asha Ram showed the police the place of incident where he had seen the quarrel between deceased Sanjay and accused persons. He also admitted that accused Pawan was arrested in his presence and was interrogated by police. Accused Rajesh was arrested in his presence by the police. He further 18 admitted that accused Rajesh had told that he had kept the mobile of deceased at his house after committing his murder. He admitted that accused Rejesh thereafter got recovered the mobile phone of the deceased from his house which was seized by the investigating officer . He admitted that thereafter the acused had taken the police team to house of accused Subhash then present before the court and he was arrested at his house. He admitted that accused Subhash was arrested and interrogated and his disclosure statement was recorded. He admitted that the accused took the police team to house of accuse Pradeep (facing trial before juvenile court) and he was arrested. He identified the mobile phone make Nokia 2300 which was seized in this case as Ex.PW.10/P1.
PW11 is Asha Ram. He has stated in brief that on 07/07/06 at about 12 night, he was coming to his residence. When he reached at Dakshinpuri he saw a quarrel between deceased Sanjay and accused Subhash, Rawan, Deepi and one more person whose name he did not remember. The four persons thereafter, took Sanjay on scooter with them. Thereafter, he came at his house. He came to his duty at 19 about 5 AM. At night he went at his village from the place of his duty. After one week, when he returned from his village, PW Pitamber told him that he had got lodged missing report about Sanjay at the Police Station as he had not returned at home.
He informed the police about this. All the four persons who had quarrelled with deceased Sanjay were arrested by police. Both accused persons then present in the court were among the four persons who were quarreling with deceased. Accused Subhash had got recovered mobile of the deceased from his house.
This witness was cross examined by Ld. Addl. PP as he was resiling from his statement. He admitted that he told the police in his statement that accused Subhash and Pradeep also fled away from there and he considered it a dispute in fun with the accused persons. He identified the mobile phone make Nokia 2300 seized in this case as Ex.PW.10/P1.
PW12 is Brij Mohan. He has stated that in the year 2006 he was running mobile shop under the name and style of BBM telecom. On 27/06/05 Sanjay had purchased one mobile make Nokia 2300 20 having IMEI No. 355359008769664 for a sum of Rs. 3450/-. On 20/09/06, he gave the photocopy of the bill to the police which was seized vide seizure memo Ex.PW.12/A. The bill is Mark X. Since he had closed the shop now for the last about two months he was not in possession of any of the bill.
PW13 is Ct. Shish Ram. He has stated in brief that on 08/07/06, he was posted at Police Post Pushp Vihar, Police Station Malviya Nagar. On that day, on receipt of DD No. 18, he alongwith HC Rajender Singh went to Sector 5, Pushp Vihar nala, where he found one dead body of a male was lying inside the nala. HC Rajender Singh and he removed the dead body from the nala and HC Rajender Singh took the cursory search of the deceased and one ATM card of UTI Bank in the name of Sanjay Nautiyal, one driving license in the name of Aminder and one purse containing some visiting cards and papers were found the persons of deceased which were seized vide memo Ex.PW.13/A. The dead body was sent to mortuary by HC Rajender Singh. On 10/07/06, he visited the mortuary of the AIIMS Hospital with SI V P Singh and after 21 postmortem on the body of the deceased, the dead body was handed over to the relatives of the deceased. In the mortuary doctor gave viscera of the deceased, one sternum and two sample seals to him which were seized by the investigating officer vide seizure memo Ex.PW. 13/B and he deposited the same in the malkhana. investigating officer recorded his statement.
PW14 is HC Rajender Singh. He has corroborated with the statement of PW13 Ct. Shish Ram regarding going to the Pushp Vihar, Sector-5 Nala, seeing dead body, recovery of articles of deceased and removing dead body to the mortuary of AIIMS Hospital. He also proved the photographs Ex.P1 to P4.
PW15 is SI Vinod Pal who has stated that he was working with Crime Team, South District on 08/07/06. He went to the spot i.e. Ganda Nala, Sector 5, Pushp Vihar and inspected the spot and prepared the report as Ex.PW.15/A. PW16 is Ct Balwant Singh. He has stated that he was posted as photographer with the crime team and he proved positives photographs as Ex.P1 to P4 and negatives as Ex.PW 16/P1 to P4. 22
PW17 is Harsh Mani Panth who has stated that deceased was his nephew and was missing. He went to Police Station Ambedkar Nagar and informed the Duty Officer regarding missing of his nephew. His nephew Sanjay was having a Nokia mobile. He had complained to the Duty Officer regarding missing of his nephew on 08/07/06.
PW18 is Dr. Sunil Kumar Sharma, Assistant Professor, Department of Forensic Medicine, Safdarjung Hospital who has conducted the postmortem examination of the dead body of deceased Sanjay Nautiyal. He also stated that on postmortem examination rigor mortis pass off, postmortem lividity prominent over face and chest washer women's hand and feet was present. Froth was present over nose and mouth, postmortem blisters present over chest and shoulder, face was bloated with tongue protuded, abdomen was distended with greenish discoloration, genital organs were swollen up. There was no external injury present over the body. Brain was congested. Lungs were oedematous with emphysematous changes. Stomach contain about 200 ML of fluid mixture of mud (black) particles and digested food particles. Viscera was preserved in 23 saturated solution of common salt and sternum bone was preserved for diatom test. Cause of death was kept pending till the report of chemical analysis and diatom test available from FSL. He proved the postmortem report as Ex.PW.18/A. He had seen the FSL report No. C 2943/06 dt. 27/12/06 that day, as per report viscera was positive for ethyl alcohol and alcohol level in blood was found 57.5 mg per 100 ml of blood. This witness was partly examined in chief and his further examination was deferred. He was recalled for further examination on 17/11/08. He has stated that as per the report of the investigating officer the sternum bone which was preserved for diatom test was not sent to FSL. As per his opinion the casue of death in this case cannot be determined conclusively in the absence of diatom test result. However, on he basis of findings mentioned in the postmortem report the possibility of drowning as a cause of death cannot be ruled out.
PW19 is Ct. Mahesh Kumar who was working as DD writer on 08/07/06 in Police Post Pushp Vihar, Police Station Malviya Nagar. He recorded DD No. 18, the true copy of which was handed over to SI 24 V P Singh for necessary action. The information was also sent to SHO. He had brought the original DD register. The true copy of the same is Ex.PW.4/A. PW20 is HC. Pappu Ram. He has stated that on 27.07.06 he was posted as MHC (M) Police Station Ambedkar Nagar. On that day the mobile phone in question was deposited by the IO alongwith seizure memo of the mobile and scooter. He deposited the same in the malkhana vide entry in register No. 19 entry No. 3499 dated 27/07/06 copy of which is Ex.PW20/A. On 25/08/06, the visra and two sample seals were deposited in the malkhana with him vide No. 3561 dated 25/08/06, he had brought the original malkhana register No. 19 containing entries No. 3499 dated 27/07/06 and entry no. 3561 dated 25/08/06. The copy of the entry no. 3561/3499 is proved as Ex.PW20/B. Thereafter, visra sample and sample seals were sent to FSL on 30/08/06 vide RC No. 332/21 for depositing the same in FSL, Rohini. So long as the case property and visra and sample seals remained in his possession these were not tampered with.
PW 21 is Anuj Bhatia Nodal Officer. He has stated that he was 25 working with Vodafone from 4.6.2009. Earlier this company was known as Hutch company. On that day he had brought the print of call details record of mobile no. 9811868412 for the period 15/4/06 to 30/6/06( this record is running into 47 pages). He had also brought the record regarding release of connection. As per the record this connection was in the name of Sanjay Kodiyal having address 3566, Dakshin Puri, Virat Cinema Hall, New Delhi. This mobile remained activated in the name of Sanjay Kodiyal from 13.5.05 till 6.10.06. the certified copy of record of release of connection is Ex. PW 21/A and the certified copy of the CDR of this phone is Ex. PW 21/B( running into 47 pages). Both these records are computer generated record. The data retrieved from the system maintained in the office of Vodafone company. The data in the computer was preserved and he certified that this print was true copy of the data maintained in the computer system installed in their office. The certificate to this effect under Section 65 B of Indian Evidence Act is Ex. PW 21/C. PW22 is Mr. Sandeep Byala, ACP Nangloi. He has stated that on 26.07.06 he was posted at PS Ambedkar Nagar as Additional 26 SHO. After registration of the case vide FIR NO. 581/06, the investigation of this case was assigned to him and he had collected the rukka, FIR and related documents and started the investigation. The statement of Pitambar Chamoli, Ex. PW . 4/B, the rukka Ex. PW . 8/A were among these documents which he collected. He along with Pitambar Chamoli, SI Jeet Singh, SI V.P. Singh and staff went to Sector-5, Pushp Vihar. It was the place where dead body was recovered on 08.07.06. He prepared a site plan Ex. PW . 22/A, as per the dictations given by the SI V.P. Singh. Thereafter, they all went to the house of Asha Ram at block no. 3, Dakshin Puri, where Asha Ram was present. At his instance the site plan of the place of occurrence Ex. PW . 22/B was prepared. Thereafter, during the course of investigation he visited the house of Pawan where he was present, he was identified by Asha Ram, he was interrogated and was arrested in this case (Pawan is a juvenile and is facing trial before the Juvenile Justice Board). The arrest memo of accused Pawan is mark A-1, the personal search memo is mark A-2, he was interrogated his disclosure statement is mark A-3. Thereafter, 27 accused led the police party to a place near his house and pointed towards a scooter no. DL3SQ0775. It was seized vide memo Ex. PW . 6/A. Thereafter, accused Pawan went to the house of accused Rajesh, where Rajesh was present, he was also interrogated and was arrested in this case vide memo Ex. PW . 22/C Asha Ram was also present at that time. He proved the personal search memo of Rajesh Ex.PW.6/B. He identified accused Rajesh then present in the court. He made the disclosure statement which was recorded, the same is Ex. PW 6/F. Accused pointed towards an almirah in his residential house at block -9, Dakshin Puri and from the said almirah he produced one mobile phone belonging to the deceased. This mobile was taken into possession vide memo Ex. PW.6/D and the mobile is Ex.PW.10/P1. Thereafter, they all went to block no. 3 at the house of accused Subhash then present in the court, he was present in the house, he was also interrogated and was arrested vide memo Ex. PW . 22/D and his personal search was conducted vide memo Ex. PW . 6/E, Asha Ram was also with us at that time. The disclosure statement of accused Subhash is Ex.PW.6/C. Thereafter, 28 they all went to house of accused Pradeep (juvenile), he was arrested vide memo Mark B-1, his personal search was conducted vide memo Mark B-2, he was interrogated, his disclosure statement was recorded and the same is Mark B-3, Asha Ram was also with them at that time. All the accused were got medically examined and they were sent to JC. He had recorded the statement of witnesses. During the course of investigation he had collected the inquest papers which were with SI V. P. Singh. These documents are application for conducting the postmortem, Form 25.35, DD no. 18, PS Pushp Vihar, statement of Pitambar Chamoli, Harshmani Pant, Ramesh Chand Nautial, hue & cry notice, D. D. No. 27 B, PS Ambedkar Nagar, requests for preservation of the dead body moved by HC Rajinder Singh, the postmortem report Ex. PW . 18/A, seizure memo of purse Ex. PW . 13/A . These documents are collectively Ex. P-1. During the course of investigation he examined witness Brij Mohan, he produced one receipt of the mobile which was seized vide memo Ex.PW.6/D. The seizure memo of receipt is Ex.PW.12/A and the bill is mark X. He had also collected the documents pertaining to sale 29 and purchase of the scooter no. DL3SQ0775. These documents were seized from Amit Kumar vide memo Ex.PW. 3/A and the documents are Ex. PW . 3/P-1 to P-7. He had collected the exhibits from PS Malviya Nagar vide memo Ex.PW.13/B and deposited them in malkhana of PS Ambedkar Nagar. During the course of investigation all the exhibits were sent to Rohini through const. Hazarilal. The result was received and the same is Ex.PW.22/E. During the course of investigation he put the relevant documents before the doctor for obtaining the subsequent opinion regarding cause of death. The opinion was obtained and the same is Ex. PW . 18/DA and his request is Ex.PW.22/F. He had also visited the spot with the draftsman SI Mahesh, who took rough notes and measurement and thereafter he collected the scaled site plans Ex. PW . 9/A and 9/B. He had also collected the negatives and the photographs which are on the record and are Ex. P-1 to P-4. He had also collected the CDR and CAF of mobile no. 9811868412, which are Ex. PW . 21/A to 21/C. He had recorded statement of witnesses and after completion of investigation submitted the file for preparation 30 of charge sheet. He had also collected the PCR form Ex. PW . 7/A and the crime team report Ex.PW.15/A. He had also collected the copy of missing report lodged by Harshmani Pant i.e. DD No. 29-B, which is Ex. PW 22/G. All the accused persons also made the pointing out of the place of occurrence. The pointing out memos are Ex. PW. 6/G and Ex.PW.6/H and Mark C and D. Accused Rajesh and Pawan also pointed the ganda nala vide memo Ex. PW . 6/I and mark E. The investigating officer prepared challan against the accused persons.
PW 23 is Dr Shalini Girdhar Specialist Forensic Medicine Sanjay Gandhi Memorial Hospital. She has stated that on 13.2.06 she was posted as Sr Resident Deptt of Forensic Medicine and Toxicology AIIMS. An application in connection of this case was moved by the investigating officer which is Ex. PW.22/F. Along with this application FSL report and postmortem reports were put to give final opinion regarding cause of death which are Ex. PW 22/E and Ex. PW 18/A and after examining these documents she gave her opinion regarding cause of death as asphyxia as ante-mortem 31 drowning in presence of ethyl alcohol ( 57.5 mg/ 100 ml). However, sternum bone finding was confirmatory for drowning. Her report is Ex. PW 23/A( already previously Exhibited as Ex. PW 18/DA). PLEA AND DEFENCE OF ACCUSED :
In the statements under section 313 CrPC the accused persons have either denied the incriminating evidence emerging from prosecution case and put to them or have expressed their ignorance about the same. They stated that they are innocent and have been falsely implicated in this case. Witnesses have deposed falsely. They did not lead any evidence in their defence.
ARGUMENTS AND FINDINGS The learned Additional Public Prosecutor for the State has argued that the mobile phone of deceased is proved to be recovered from accused Subhash, there is last seen evidence of PW11 Asha Ram the relative of the deceased who has seen the deceased being beaten by four accused persons including the two accused facing trial before this court. This witness has also seen that the two accused took the deceased after beating on the two wheeler scooter given rise 32 to the presumption that they have thrown him in the Nalah where the dead body of the deceased was found. It is argued that during investigation investigating officer has also recovered that two wheeler scooter which is also proved to be owned by Krishan lal father of one of the co-accused Pawan who is facing proceedings before Juvenile Justice Board. Therefore, the chain of circumstances against the accused persons is complete and they are liable to be convicted under section 302 IPC. Alternatively, it is argued that since the death of the deceased was on account of drowning as per medical report at least accused persons are liable to be convicted under section 304 IPC for the offence of culpable homicide not amounting to murder.
The arguments on behalf of the accused persons are that the death of the deceased was due to drowning as per opinion given by the doctor. As per subsequent opinion of doctor Shalini Girdhar on post-mortem report cause of the death is asphyxiation due to entertain more time drowning in the presence of ethyl alcohol is (57.5 mg/100ml). The stomach contents of the deceased contained a mixture of black mud particles and digested food particles 33 (unrecognizable) and even the chest wall was stained with black mud particles. This means that when the deceased entered the Ganda Nalah he swallowed the dirty Black water of the nala and also breathed in the same or else there could not be these black mud particles in the chest as well as the stomach. Therefore, deceased who was drunk himself fell down in the 'Ganda Nalah' and died himself.
It is also argued that the complainant PW10 Pitamber Chamoli has stated about hearsay evidence and is of no use to the prosecution . The main witness of the prosecution PW 11 Asha Ram is also not worth believing as his statement is full of improbabilities. He did not even lodge a police report after seeing allegedly the deceased being beaten by accused persons. It is also argued that this witness has stated as per the prosecution story that only two accused namely Pawan and Rajesh took the deceased on two wheeler scooter and the two accused persons including accused Subhash and Pradeep left from there. Therefore accused Subhash and Pradeep cannot be held guilty for the offence of murder when as per post- 34 mortem report cause of death is drowning. It is argued that the investigation of the case is not done properly and no rational person will believe the version of the prosecution based on tainted investigation, the police colluded with the relatives of the deceased to falsely implicate the accused persons who, as a result were deprived of their freedom and had to undergo protracted suffering in prison. It is argued that the accused persons are entitled to be acquitted in this case.
I have heard the learned Additional Public Prosecutor for the State and counsel for the accused persons and have gone through the written arguments filed on behalf of accused Subash , record of the case and relevant provisions of law.
It is a case based on circumstantial evidence so it would be appropriate to have a glance at the legal position as to the case based on circumstantial evidence.
In Sunder @ Lala and Ors. Vs. State 2009 VII AD (Delhi) 615 it was held as under:
" 29. It is settled law that circumstances play very important role in the appreciation of evidence. The 35 conduct of witnesses is a very important facet to determine their creditworthiness. "
As evidence, there is no difference between direct and circumstantial evidence. The only difference is in that as proof, the former directly establishes the commission of the offence whereas the latter does so by placing circumstances which lead to irresistible inference of guilt. (See Dalpat Singh v. State of Rajasthan 2005 Cr LJ 749 (Raj) (DB)).
In Padala Veera Reddy v State of AP, AIR 1990 SC 79 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none 36 else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See also Shivu & Anr. v R. G., High Court of Karnataka, 2007 Cr LJ 1806 (SC)) In a recent pronouncement in Raju Vs. The State by Inspector of Police - AIR 2009 SC 2171, as regards circumstantial evidence, the Hon'ble Apex Court observed as under:
"7. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316);
Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v.
State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an 37 inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
8. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence.
Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".
9. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a 38 definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
10. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
11. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal 39 accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted".
12. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
13. In Hanumant Govind Nargundkar and Anr.
V. State of Madhya Pradesh, (AIR 1952 SC
343), wherein it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by 40 the accused."
14. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the 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 exclude every possible hypothesis 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.
15. These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr.
41
(2003 (11) SCC 261), Kusuma Ankama Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008) and Manivel and Ors. v. State of Tami Nadu (Criminal Appeal No.473 of 2001 disposed of on 8.8.2008)."
In the backdrop of the above legal position with regard to the criminal cases based on circumstantial evidence the facts and circumstances of the case and the circumstantial evidence adduced by the prosecution are to be judged. The star witness in this case is PW11 Asha Ram who is alleged by the prosecution to have seen the four accused persons beating the deceased in the night and the two accused taking the deceased on a two wheeler scooter. The question arises if this witness PW11 Asha Ram has seen accused persons beating the deceased in the night why he did not try to save the deceased. Why did he not lodge the police report about it? Why he did not intimate about this fact to the relatives of the deceased including complainant PW10 Pitamber Chamoli and PW 17 Harshmani? It is pertinent to note that PW 17 Harshmani has stated in the cross-examination that PW Asha Ram was staying with him at that time. The deceased was nephew of PW Pitambar Chamboli and 42 PW Asha Ram is his cousin brother. What is important is that he also stated in the cross-examination that Asha Ram was present in his house when he went to police station to lodge the missing report of his nephew (deceased). When Asha Ram was present when PW 17 Harshmani went to lodge the report regarding deceased being missing what prevented PW 11 Asha Ram from intimating PW 17 Harshmani that the deceased was beaten by four accused persons including the two facing trial in this court . Therefore, these facts completely discredit the testimony of PW 11 Asha Ram that the deceased was beaten by four accused persons . Further in his statement PW 11 Asha Ram has stated that he went to his village and he returned after one week from the village and came to know that the deceased has not returned home. At the time of examination-in-chief he was hostile witness with regard to certain important aspects but in the cross-examination conducted on behalf of State he admitted those facts put to him by learned Additional Public prosecutor. What is important to note that in the examination-in-chief he stated that he returned after a week. The date of incident being the night of 7/7/2006 43 and if the witness after a week has returned say by about 15/7/2006, why he made the statement to the police about the deceased being beaten by four accused on 26/7/2006 and not before when the fact of death of the deceased had already come to his knowledge.
It is also difficult to believe that if the deceased had been beaten by the four accused persons he would not suffer any visible injury. In the post-mortem report ExPW18/A, it is stated that there was no external injury on the person of the deceased which also belies the story of PW 11 Asha Ram that the deceased was beaten by four accused persons. Therefore, I am unable to believe the statement of PW 11 Asha Ram and am of the view that the prosecution has failed to prove the important circumstance of' last seen' the accused persons and deceased together in this case.
The medical evidence in this case also does not support the prosecution case. The deceased was drunk at the time of his death having consumed ethyl alcohol (57.5 MG/100 ML). The cause of death based on post-mortem report and CFSL report given by the medical expert PW23 Doctor Shalini Girdhar is asphyxia as 44 antemortem drowning in presence of ethyl alcohol (57.5 MG/100 ML). However, sternum bone finding was confirmatory for drowning. This report and opinion of the medical expert rules out the death of the deceased on account of alleged prosecution case of beating given by the four accused persons. The deceased being drunk at the time of his death the cause of death being drowning which fact is further confirmed by observations in the post-mortem report ExPW 18/A that there was about 200 ml. of fluid-mixture of mud (Black) particles and digestive food particles (unrecognisable) as stomach contents which also points to the cause of death being drowning. There is no evidence of any person stating that either of the accused persons has thrown the deceased in the ganda Nalah.
The recovery of two wheeler scooter belonging to father of one of the coaccused facing proceedings before Juvenile Justice Board is also meaningless in the absence of any evidence that the said scooter was seen near the place where dead body of the deceased was found. The statement of PW 11 Asha Ram, as already stated, it is not worth reliance. In the examination-in-chief he has stated that 45 the four accused persons took the deceased after beating on the two wheeler scooter. It looks to be impossible that four accused persons can ride the two wheeler scooter together along with the deceased being taken with them . In the cross-examination conducted by learned Additional Public Prosecutor this witness has stated that two accused persons took the deceased on the two wheeler scooter. It also looks to be improbable that the two accused persons would take unconscious /drunk deceased on the two wheeler scooter to a distance to throw him in Ganda Nalah. Therefore, the recovery of two- wheeler scooter by the investigating officers in this case is of no consequence.
No doubt the prosecution has proved through the statements of PW 11 Asha Ram, investigating officer PW22 Sandeep Byala and other witness PW6 SI Jeet Singh the mobile phone without Sim card of the deceased was recovered from accused Rajesh vide memo ExPW 6/D. The fact that the said mobile phone was sold to deceased Sanjay is also proved by PW 12 Brijmóhan against receipt which is seized vide memo ExPW 12/A. The fact that the said mobile phone as 46 per record of the company Vodafone is in the name of deceased Sanjay is proved by PW 21 Anuj Bhatia and is also established by the documents proved by him, i.e., certified copy of record of release of connection ExPW 21/A and the certified copy of the CDR of this phone ExPW 21/B. Therefore, it is established on record that the said mobile phone belonged to deceased and was recovered from accused Rajesh. The question arises can only due to this evidence accused Rajesh can be said to have killed the deceased, more so, when there is no visible injury on the body of deceased as per post- mortem report and cause of his death is drowning when deceased was drunk?
It is to note is that deceased Sanjay died on is 7/8-7-06 while this mobile phone of the deceased was recovered from accused Rajesh of 20/9/2006, i.e., after more than two months and 10 days of the death of the deceased Sanjay . Therefore, I am unable to draw presumption of murder or culpable homicide not amounting to murder of deceased caused by accused Rajesh on account of recovery of mobile phone of the deceased from him while no other credible 47 incriminating evidence is proved by prosecution against him in connection with the charge of murder of the victim Sanjay. At the most accused Rajesh can be said to be guilty of the offence under section 411 IPC. Further, as per prosecution case itself accused Subash along with one of the accused persons had run away from the scene of alleged beating of deceased before he was taken on the two wheeler scooter by two accused persons so as per prosecution case itself accused Rajesh cannot be guilty of the offence of murder or drowning.
There is also no credible evidence produced by the prosecution that accused persons have removed the dead body of the deceased Sanjay to dump it in Ganda Nalah. Therefore charge under section 201/34 IPC is also not proved against the accused persons. RESULT OF THE CASE In view of the above discussion I hold that the prosecution has not been able to prove its case against the two accused persons for the offence of murder or cause the evidence of murder disappear. The accused persons are, therefore, acquitted of the charges framed 48 against them. However, accused Rajesh is proved to be found in possession of the mobile phone belonging to deceased Sanjay and he has failed to account for the said possession and on account of presumption under illustration (a) of section 114 of the Indian Evidence Act he is found guilty of the offence under section 411 IPC and is convicted as such. Let he be heard on the point of sentence.
Announced in the
open court on 16/02/2010 ( S.K. SARVARIA )
Additional Sessions Judge-01/South
Patiala House Court/New Delhi
49