Delhi District Court
State vs . Umesh Kumar Chauhan on 26 August, 2014
1
In the Court of Dig Vinay Singh
ASJ/Special Judge : NDPS : Rohini Courts : Delhi
In the matter of :
SC No. 25/13
State Vs. Umesh Kumar Chauhan
FIR no. 244/11
PS Mahendra Park
U/s 302/34 IPC
State
Versus
Umesh Kumar Chauhan
S/o Sh. Narayan Prasad Chauhan
R/o Village Bheria Rahika
Post & District Katihar, Bihar.
Date of receipt : 09.02.2012
(Received in this court) : 31.10.2013
Date of arguments : 16.08.2014
Date of announcement : 26.08.2014
JUDGMENT
1. The above named sole accused was sent for trial of offence U/s 302 IPC. He is accused of having committed murder of Smt. Abha Gupta wife of complainant Sh. Naresh Gupta. The story of prosecution is that the accused along with his associate (juvenile in-conflict-with-law) committed murder of Smt. Abha and the motive behind the said murder SC No. 25/13 Dtd.. 26.08.2014 Page 1 of 41 2 was either non-payment of due wages of the two offenders by Naresh i.e. husband of the deceased, or, committing theft of Rs.3,50,000/- (Three Lakh Fifty Thousand) kept by Naresh in the house, which fact was allegedly in the knowledge of the accused and his associate.
1.1. Prosecution claims that the accused and his associate worked as labourer with Naresh for last about 18-20 days before the date of incident. The murder was committed on 15.10.2011 between 9.30 to 11.00 PM. Prior to it, on 13.10.2011 the accused and his associate wanted Naresh to clear their wages. Naresh did not clear all the dues and instead paid only part amount. In his complaint Naresh stated that on 13.10.2011 the accused and his associate left after taking part wages from him. He also stated that he had kept Rs. 3.5 Lakhs at his house, as he wanted to purchase a property. On 15.10.2011 at 7.30 PM he left his wife and the two minor children in their house and went for his business. When he returned to his house at about 11 PM, he noticed that his wife was lying on the floor of the room in a pool of blood. His two children, aged two years and, two months, respectively, were in the room. He picked up his injured wife and brought her downstairs from the first floor. He rang the bell of landlady for informing her and at that time the landlady asked complainant Naresh to keep the injured on the floor, to see as to what had happened. Then the complainant and the landlady noticed that the deceased had a deep cut mark on her neck and she was already dead by that time. Police was informed. Police came to the spot. Crime team was also called. Photographs of the body and the crime spot were taken. In the room where the incident in SC No. 25/13 Dtd.. 26.08.2014 Page 2 of 41 3 question occurred, one knife stained with blood was found. On the handle of the knife, one diaper was found wrapped. It was noticed that one iron box was kept on the loft inside the room and nearby one lock and key were also there on which there were blood marks. Exhibits were collected from the spot.
1.2. During investigation, the accused and his associate were apprehended on 20.10.2011. It is also the case of prosecution that accused and his associate got recovered their blood stained clothes after their apprehension and in the recovered clothes of the present accused, one mala with key, which the deceased used to wear and which had the key of the lock of the box containing Rs.3.5 Lakhs, was recovered. One neighbourer was also examined who stated that she had seen the accused and his associate leaving the house of deceased about the time of incident. On completion of investigation, charge sheet was filed.
2. Accordingly, a charge U/s 302 IPC was framed against the present accused to which the present accused pleaded not guilty and claimed trial. It may be pointed out here that though in the charge framed against the accused by the Ld. Predecessor Court mentioned that the accused along with the juvenile committed the offence, but in the charge word common intention or Section 34 has not been specifically mentioned. Under section 464 of Cr. P. C, an omission or irregularity in the charge does not render the trial invalid and does not vitiate the trial. In the charge itself, it is specifically mentioned that the accused along with his associate committed murder. In the charge sheet and material SC No. 25/13 Dtd.. 26.08.2014 Page 3 of 41 4 supplied to the accused and throughout the trial, the case of prosecution was clear that the murder was committed in common intention. For the same reason, amendment of charge was not deemed necessary at the stage of judgment.
3. In support of its case prosecution examined total 30 witnesses. It would be pertinent to mention that initially the prosecution had examined 27 prosecution witnesses and thereafter statement of accused was recorded. Subsequently, this court summoned three more witnesses, i.e. PW28 to PW30, in exercise of powers U/s 311 Cr.P.C, who were respectively Nodal Officers from the concerned Mobile Telephone Service Providers. These witnesses were called since, though their name figured in the list of witnesses in supplementary charge sheet, but they were inadvertently not summoned.
3.1. Out of the 30 witnesses examined by the prosecution, the complainant, Naresh Gupta was examined as PW6.
3.2. Ms. Rajni, who saw the accused and his associate leaving the premises of deceased at the time of incident, is examined as PW13.
3.3. The police officials who reached the spot on receipt of the information about the incident, namely, SI Kanhaiya Lal, Ct. Kannu, Ct. Narender Singh and Inspector Hemant are respectively examined as PW16, PW21, PW23 and, PW26.
3.4. The police officials who arrested the accused and his associate and are SC No. 25/13 Dtd.. 26.08.2014 Page 4 of 41 5 also the witnesses to the recoveries got effected by the accused, are examined as PW14 SI Manoj; PW20 HC Parveen and; PW26 Inspector Hemant.
3.5. Other witnesses are more or less formal in nature.
3.6. PW1 Ct. Ramesh and PW2 SI M. D. Meena were the members of Mobile Crime Team who reached the spot and inspected the spot. PW1 took photographs of the crime scene Ex.PW1/A-1 to A-21. PW2 SI M. D. Meena being the Incharge of Mobile Crime Team prepared and proved his report Ex.PW2/A. 3.7. PW3 Dr. Gopal Krishna proved MLC of the deceased as Ex.PW3/A, and proved the fact that the deceased was brought dead to Babu Jagjeevan Ram Memorial Hospital (BJRM).
3.8. PW4 HC Jagbir Singh was the duty officer who proved FIR Ex.PW4/A;
endorsement on rukka Ex.PW4/B; Certificate U/s 65B of Indian Evidence Act Ex.PW4/C and; DD no. 49 A as Ex.PW4/D. 3.9. PW5 Urmila, mother of deceased, simply identified the dead body of deceased in the mortuary of the hospital on 18.10.2011.
3.10. PW7 SI Manohar Lal prepared scaled site plan of the place of incident and proved it as Ex.PW7/A. 3.11. PW8 Rajender Kumar had simply informed the police at PCR no. 100 SC No. 25/13 Dtd.. 26.08.2014 Page 5 of 41 6 from his mobile phone, on coming to know about the incident.
3.12. PW9 Sumedh Kumar Sethi, Ld. Metropolitan Magistrate, proved the test identification of the case property i.e. the recovered mala with, which was correctly identified by the complainant Naresh, vide TIP proceedings Ex.PW6/D. 3.13. PW10 HC Raj Kumar recorded DD no. 49A at 11.30 PM in the police station Mahendra Park on receipt of information about the present case and proved the same as Ex.PW4/D. 3.14. PW11 SI Kaptan Singh was the Juvenile Welfare Officer who deposed regarding the juvenile and we need not discuss his testimony in the present matter.
3.15. PW12 Mamta was the landlady of the complainant and the deceased, and she deposed that on 15.10.2011 the complainant knocked her door at about 11 PM. When she opened the door, she saw that the complainant was holding his wife, smeared with blood, on his shoulder. On her asking, the body was kept on the floor and at that time it was noticed that the deceased was having a cut mark on her neck.
3.16. PW15 Shyam deposed that the mobile telephone no. 8750451209 was purchased by him but he had given that mobile SIM Card to Surajpal and that Surajpal had handed over the said mobile SIM Card to the present accused Umesh Chauhan. He also deposed that Surajpal and Umesh Chauhan were related to each other in the manner that accused SC No. 25/13 Dtd.. 26.08.2014 Page 6 of 41 7 Umesh is brother-in-law(sala) of Surajpal. He deposed that one and a half months prior to the date of incident, the said SIM Card was given to Surajpal and Surajpal had handed over the said mobile SIM Card to accused Umesh Chauhan.
3.17. PW17 Dr. Bhim Singh conducted post mortem on 18.10.2011 and proved his report Ex.PW17/A. During the post mortem, following external injuries were noticed :-
Incise wound front of neck 6.5 cm X 2 cm X bone deep up to 5th cervical vertebra cutting the tissues, muscles, vessels, trachea and esophagus, tailing on right side.
Abrasion 1 cm X 1 cm of left elbow.
Abrasion 2 cm X 1 cm back of right shoulder.
PW17 gave opinion that the cause of death of deceased was due to hammeorage shock consequent upon the cut throat injury via injury no.1 caused by sharp edged weapon and sufficient to cause death in ordinary course of nature. All injuries were ante mortem in nature. The time since death was approximately 60 hours. This witness also examined on 15.11.2011, the weapon of offence recovered from the place of offence and after examining the weapon of offence, the witness gave opinion that the injury no.1 on the deceased was possible from the weapon in question.
3.18. PW18 SI Vikas deposed regarding identification of the body by the relatives of the deceased and thereafter conduction of post mortem and SC No. 25/13 Dtd.. 26.08.2014 Page 7 of 41 8 handing over of the body after post mortem. The witness also deposed that two sealed parcels sealed with the seal of hospital containing clothes of deceased and blood samples along with one sample seal were given to the investigating officer which were seized by the investigating officer vide memo Ex.PW18/A. 3.19. PW19 HC Raghunath was the malkhana moharrar of the police station who proved deposition of the case property and sending of the case property to the expert.
3.20. PW25 W/Ct. Anju was posted in the PCR Head quarter, who received the information of this incident from the mobile phone of PW8 Rajender and passed on the information to the PCR Van. She proved the PCR form Ex.PW25/A. 3.21. PW22 HC Naresh Kumar was the concerned official posted in the PCR Van who reached the spot on receipt of information of the present case.
He deposed that the body of deceased was removed to the hospital in a CAT Ambulance after he reached the spot and in the hospital the deceased was declared brought dead.
3.22. PW24 Om Prakash was the driver of the concerned ambulance who took the deceased from the spot to the hospital.
3.23. PW27 Inspector Rajesh Kumar was further investigating officer of this case who, on completion of investigation, filed the charge sheet. During his tenure as investigating officer of this case Inspector Rajesh got the SC No. 25/13 Dtd.. 26.08.2014 Page 8 of 41 9 scaled site plan prepared; got the exhibits deposited in the FSL; got the TIP proceedings conducted; collected the FSL result and; recorded statements/supplementary statements of certain witnesses.
3.24. PW28 Israr Babu is Nodal Officer from Vodafone Mobile service provider and he proved that mobile no. 9582451486 was in the name of Vikram Singh and proved the call details of this mobile for the period 15.10.2011 to 20.10.2011 along with necessary certificate U/s 65B of Indian Evidence Act as Ex.PW28/A to Ex.PW28/D. 3.25. PW29 Surender Kumar, the Nodal Officer from Idea Cellular Ltd.
proved that the mobile no. 8750451209 was registered in the name of Rani Devi wife of Bhagwan Dass and also proved the call detail records of this mobile for the period in question with certificate U/s 65B of Indian Evidence Act, as Ex.PW29/A to D. 3.26. PW30 Rajeev Sharda Alternate Nodal Officer proved the call detail records of PW8 Rajender who had informed the PCR.
3.27. PW13 Rajni deposed that on the date of incident, she returned to her house at about 9.30 PM. At that time, she spoke to the deceased Smt. Abha Gupta and thereafter went to her house. Thereafter, at about 10.00 PM when she was present at the roof of her house, she saw accused Umesh along with one more boy going out of the house of Abha through the stairs. She deposed that she saw both of them as both of them looked back twice while they were leaving the house of deceased. She also deposed that she recognized the accused and his SC No. 25/13 Dtd.. 26.08.2014 Page 9 of 41 10 associate as they used to work at the house of deceased. She also deposed that she identified the associate of the accused before the Juvenile Justice Board as the second boy who was seen by her at the spot at the time of incident.
3.28. PW6 Naresh is the complainant and husband of the deceased. He deposed that he was residing at first floor of the building and had two minor children. He used to run a rehdi selling momos and spring rolls. He had employed the accused and his associate, both of whom used to help him in preparing the momos and spring rolls. He used to pay them Rs. 3000/- per month and meals. Five-six days prior to the occurrence, the accused and his associate demanded wages from him stating that they wanted to go to their native place for Diwali. The witness offered half of the amount due and asked them to receive the remaining amount after return. On this, the accused and his associate threatened PW6 that he would repent if does not pay the entire amount. On 13.10.2011 again the accused and his associate demanded money stating that they do not want to work with him. The witness offered them Rs.1700/- each but they asked for more. The accused and his associate took Rs. 2000/- each and left stating that the remaining amount may be either given to their sister or they would collect it later. The witness also deposed that when he did not pay entire amount to the accused and his associate he was threatened by the accused and his associate stating that they know how to recover their money and that the witness will have to face the consequences. Thereafter, the accused and his associate were not seen by the witness. On 15.10.2011, he left his house at 7.30 PM SC No. 25/13 Dtd.. 26.08.2014 Page 10 of 41 11 leaving behind his wife and children. When he came back to his house at 11.00 PM, he found his wife lying on the floor while his children were on the bed. He immediately lifted his wife and brought her to the ground floor. He woke up the landlady and requested her to look after his children as he was taking the injured to the hospital. The landlady however asked him to check his wife as to what has happened and thereafter they noticed that throat of the deceased was slashed. Police was informed. The witness also deposed that he had kept Rs.3.5 Lakhs and an additional amount of Rs. 10,000/- in a box in the house and that the key of lock of that box used to be kept by the deceased in a mala which she used to wear on her neck. Later on, he found that money was also missing from his house. He gave his complaint Ex.PW6/A, on which the present case was registered. The witness also deposed that during investigation he accompanied the investigating team to Old Delhi Railway Station towards Kashmere Gate from where the accused and his associate were apprehended. At the time of apprehension of accused Umesh, two mobile phones were recovered in his personal search. The witness identified the mala and key of the lock of the box as Ex.P-1. The witness also identified his own blood stained clothes seized by the police as Ex.P-2.
3.29. PW16 SI Kanhaiya Lal, PW21 Ct. Kannu, PW23 Ct. Narender and PW26 Inspector Hemant, all went to the spot on the date of incident. Ct. Narender deposed that on receipt of DD no. 49A he carried it from the police station to SI Kanhaiya Lal and then accompanied SI Kanhaiya Lal to the place of incident. It is deposed that at the spot, the dead body SC No. 25/13 Dtd.. 26.08.2014 Page 11 of 41 12 of deceased was lying in gali. The deceased had a deep cut wound on her throat. Crime team inspected the spot and also took photographs. Thereafter, complaint of Naresh was recorded Ex.PW6/A. Rukka was prepared on the complaint of Naresh and the case was got registered through Ct. Kannu. Thereafter, site plan Ex.PW26/B was prepared. From the crime scene, blood samples were lifted in cotton gauze which was kept in a plastic container. Blood stained earth and earth control were also lifted which were also separately kept in plastic containers. These plastic containers were converted into parcels and were sealed with the seal of HK. Those parcels were given Serial no. 1, 2 & 3, respectively, and were taken into possession vide Ex.PW16/A. From the room where the crime occurred, investigating officer lifted blood on cotton gauze, blood stained floor and earth control sample of the floor which were also kept in three plastic containers. These plastic containers were also sealed with the same seal and were given Serial no. 4, 5 & 6, respectively. Those parcels were taken into possession vide memo Ex.PW16/B. One red colour female shirt was seized by converting it into a parcel Serial no. 7 and was sealed with the seal of HK. Some broken pieces of bangles of green and yellow colour were also sealed in a parcel with the same seal and was given Serial no. 8. In the room on the loft one lock and two keys having blood stains were found which were also taken into possession after sealing them with the same seal of HK and after giving it Serial no. 10. Before sealing the knife, sketch of knife Ex.PW16/D was prepared. The diaper wrapped on the handle of knife was also taken into possession after sealing the same with the same seal. Complainant's blood stained clothes were SC No. 25/13 Dtd.. 26.08.2014 Page 12 of 41 13 also sealed with the same seal and were seized vide memo Ex.PW6/E. 3.30. It is deposed by PW26 Inspector Hemant that on 20.10.2011, secret information was received against the accused and his associate to the effect that they are present near Old Delhi Railway Station.
3.31. It is deposed by PW14 SI Manoj, PW20 HC Praveen and PW26 Inspector Hemant that the complainant Naresh was called and the witnesses along with the complainant went to Old Delhi Railway Station. At the Kashmere Gate side of the Old Delhi Railway Station, the accused and his associate were found and apprehended on the identification of complainant. Their arrest memos with personal search memos were prepared. In search of accused Umesh two mobile phones were recovered, one of make Nokia having SIM Card of Idea no. 8750451209, and another mobile of Qruz which was without SIM Card. The two mobiles were seized after sealing them with the seal of HK vide seizure memo Ex.PW14/C. The accused made a disclosure statement and the accused Umesh led the police team to DDA Central Store behind CNG Pump Mukarba Chowk, where, from the bushes he got recovered his blood stained clothes i.e. one T-shirt of white colour and one Navy blue colour pant which were stained with blood. In the right side pocket of the pant, one red colour pearl mala along with one key was found. The clothes and the mala were separately sealed in two parcels with the seal of HK and were taken into possession vide memo Ex.PW14/D. Similarly, the juvenile also got recovered his blood stained clothes from that spot, but separately. The investigating officer PW26 SC No. 25/13 Dtd.. 26.08.2014 Page 13 of 41 14 also deposed about deposition of case property in the malkhana and also took opinion as to the weapon of offence from BJRM Hospital.
3.32. The witnesses identified the case property in the court as Ex.P1 to P18.
The witnesses also identified the accused Umesh Chauhan in the court as the same person.
4. On completion of prosecution evidence, all the incriminating evidence was put to the accused in his examination U/s 313 Cr.P.C. In his examination, the accused admitted that he used to work with the husband of deceased along with his juvenile associate and that husband of deceased used to pay Rs.3000/- per month plus food to the accused and his associate. The accused also admitted that he and his associate had demanded wages from husband of the deceased, 5-6 days prior to the date of incident. The accused also admitted that husband of the deceased gave some part of their wages and refused to give the balance. The accused however denied that he ever threatened husband of the deceased in any manner. The accused admitted that when husband of deceased asked them to work till January 2012, he had agreed to work for some time till PW6 was able to make alternative arrangements. The accused also admitted that he told PW6 that he wanted to go to his native place. The accused also admitted that when part payment was made by PW6, he told PW6 that remaining payment can be made either to his sister or the accused and his associate would collect it later. The accused however denied that he was present at or near the place of SC No. 25/13 Dtd.. 26.08.2014 Page 14 of 41 15 incident on the date and time of murder or that PW13 saw him near the house of the deceased at or about the time of incident.
4.1. When the accused was questioned that PW13 identified him in the court, the accused claimed that she identified him simply because he used to work at the house of the deceased and PW6.
4.2. The accused also admitted that PW15 Shyam Sunder was his relative and that before the incident he was residing with his brother-in-law namely Surajpal and was also using the mobile phone given by Surajpal.
4.3. When his blood stained clothes were put to him in his statement, he claimed that he did not know about those clothes.
4.4. The accused took a plea of alibi and claimed that after taking part wages from PW6, he went to his home town and he did not commit any crime. He claimed that Naresh has deposed against him since he did not want the accused to leave his job. And other witnesses who deposed against him were neighbours of Naresh Gupta and because of their sympathy and good relations with Naresh Gupta, they deposed against the accused.
4.5. During supplementary statement of this accused, recorded by this court after examination of PW28 to 30, the accused specifically admitted that the mobile no. 8750451209 was being used by him during that time in October 2011 and that he had taken this mobile from his SC No. 25/13 Dtd.. 26.08.2014 Page 15 of 41 16 Jija Surajpal. He admitted that he took this mobile from Surajpal in August 2011 and thereafter since August 2011 he as well as his co- accused Raja Ram both used to use that mobile. When he was questioned as to the same mobile phone found in his possession on 20.10.2011, the accused claimed that on that day the mobile was not in his possession but it was in possession of the juvenile in conflict with law.
4.6. In his defence, the accused examined one witness namely Smt. Mamta as DW1. Mamta is the sister of accused. In her deposition, Mamta claimed that accused used to work with Naresh Gupta and he wanted to return to his native place. Thereafter, on 14.10.2011 in the evening his brother Umesh left for his native village. She deposed that she and her husband were picked up by the police and were taken to the police station where they were tortured and they were compelled to call accused. On their request the accused came and was implicated in this case. During cross examination, this witness admitted that she did not go to the railway station to see her brother boarding the train for the native place and she also admitted that she never filed any complaint to any authority against the alleged false implication of the accused in the present matter.
5. I have heard Ld. Amicus curiae for the accused and Ld. Prosecutor for the State.
6. There is no eye witness to the incident and therefore, the case of prosecution is based on circumstantial evidence. The circumstances SC No. 25/13 Dtd.. 26.08.2014 Page 16 of 41 17 sought to be proved against the accused are;
6.1. that the accused and his associate nurtured a grudge against husband of the deceased on account of non-payment of their complete wages and, that the accused and his associate were aware that the husband of deceased had kept a good cash amount in a box in his room, which acted as a motive to commit the crime;
6.2. that one of the neighbourers Ms. Rajni (PW13) saw the accused and his associate leaving the house of the deceased about the time of murder;
6.3. that the mobile phone locations of the accused reveals that the accused was present within Jahangir Puri area as per the locations of tower at the time of incident;
6.4. that the accused and his associate were apprehended from outside Old Delhi Railway Station on 20.10.2011, whereas, they claimed to have left Delhi for their native places;
6.5. that the accused and his associate, pursuant to their disclosure statements, led to the place of commission of crime, where pointing out memos of crime spot were prepared; and, 6.6. That the accused and his associate, pursuant to their disclosure statements, led to recovery of their respective clothes from Jahangir Puri area which clothes were bearing blood stains, with the same blood group of the deceased, and inside the clothes of accused Umesh, a SC No. 25/13 Dtd.. 26.08.2014 Page 17 of 41 18 mala with key which was missing from the neck of deceased was found.
7. Circumstance no.1 - That the accused and his associate had a grudge against the husband of deceased on account of non-payment of complete wages and they were aware that a huge amount was kept in the house.
7.1. In this regard prosecution has examined PW6 Naresh Gupta, the husband of the deceased, with whom the accused and his associate were employed. Naresh Gupta deposed that he had employed the accused and his associate on a monthly salary of Rs.3000/- each, few months before the date of incident. The accused and his associate used to help him in preparing momos and spring rolls. Few days prior to the incident they demanded money on the pretext that they wanted to go to their native village. Since this witness wanted them to continue to work with him, he offered them half of the amount due and asked them to come back and work with him for some more time. He deposed, that on this the accused and his associate threatened him that the witness will have to repent in case entire amount is not paid. Subsequently, the accused and his associate agreed to continue to work with PW6 till January of the following year. However, on 13.10.2011 the accused and his associate again demanded money saying that they do not want to work with him. The witness initially offered them Rs. 1700/- each, but then paid Rs.2000/- each. Yet, there was some balance amount which remained outstanding to be paid to the accused and his associate. The accused and his associate again threatened PW6 stating that they knew SC No. 25/13 Dtd.. 26.08.2014 Page 18 of 41 19 how to recover their money and that PW6 did not do well to them and therefore, he will have to face the consequences. Two days after this incident, PW6 found his wife murdered at his residence. Between 13.10.2011 to 20.10.2011, PW6 did not see the accused or his associate.
7.2. PW13 Rajni also deposed that the accused and his associate used to work in the house of deceased for making chowmein, spring rolls etc. 7.3. The accused did not deny the fact that he was employed with PW6.
Rather in his statement U/s 313 Cr.P.C, he admitted that he was working with PW6 the husband of the deceased along with his associate juvenile, and that PW6 used to pay them Rs.3000/- each besides meals. Accused also admitted that in October 2011 about 5-6 days prior to death of deceased, he demanded his wages as he had go to his native place for Diwali. He even admitted that PW6 gave part of the wages and refused to give the balance. He also admitted that the accused and his associate agreed to work for some more time till PW6 was able to make an alternative arrangement. The accused also admitted that PW6 paid him and his associate a sum of Rs.2000/- each and then they left stating that the remaining amount can be given to their sister or they would collect it later on from PW6. However, the accused denied that he or his associate ever threatened Naresh Gupta PW6 because of non-payment of complete wages.
7.4. Perusal of rukka Ex.PW6/A, on which the present case was registered, SC No. 25/13 Dtd.. 26.08.2014 Page 19 of 41 20 would reveal that in the said statement PW6 Naresh did not mention a single word that the accused or his associate ever threatened him because of non-payment of entire amount. The said averment of threat has come up in the court for the first time. In his initial statement given to the police, all that is mentioned by PW6 is that accused and his associate took their wages and left for their native place on 13.10.2011. Thus the fact of threat extended is not proved satisfactorily.
7.5. Yet, even if it is taken that the accused did not extend any threat on account of non-payment of entire wages, one fact is clearly admitted by the accused that there was indeed part payment due towards the accused from PW6. The said fact proves the first circumstance that the accused had to recover money from PW6 husband of the deceased. This could have acted as a motive behind the crime.
7.6. So far as the claim that the accused and his associate were aware that the husband of deceased had kept a good cash amount in a box in his room, is concerned, in this regard the only testimony relevant is that of PW6 Naresh. In his examination in chief, this witness has nowhere deposed that the accused or his associate were aware that he had kept Rs.3.5 Lakhs in his room for the purposes of purchasing property. Examination in chief of this witness Naresh is absolutely silent on this aspect of the matter. He claimed that the said amount of Rs. 3.5 Lakhs and an additional amount of Rs.10,000/- were missing from his house when he later on checked his house after the incident. However, in his cross examination the witness admitted that the accused could not get SC No. 25/13 Dtd.. 26.08.2014 Page 20 of 41 21 Rs.3.5 Lakhs as the same were lying locked in the box. He however claimed that Rs. 10,000/- were missing from his house. The story of missing of Rs. 10,000/- from the house of this witness has come up for the first time in the evidence of this witness. The said fact was never complained of by this witness. In his complaint, on which the present case was registered, regarding money all that this witness stated was that he had kept Rs. 3.5 Lakhs in his house for purchase of property which fact was in the knowledge of certain property dealers. But he did not state even in his complaint that the fact of Rs. 3.5 Lakhs kept in the house was in the knowledge of the accused. In any case, the witness admitted that Rs. 3.5 Lakhs were not be taken by the accused. Thus, the circumstance that the motive of the accused and his associate was to take away that amount is not proved satisfactorily and does not lead us anywhere.
7.7. The only fact proved under this circumstance is that the accused had to recover money from PW6 husband of the deceased, which could have acted as a motive behind the crime.
8. Circumstance no.2 - that one of the neighbourers Ms. Rajni saw the accused and his associate leaving the house of the deceased around the time of murder;
8.1. Though the accused and his associate left the work with PW6 Naresh Gupta stating that they have to go to native place on 13.10.2011, and thereafter they were not seen by PW6, but on 15.10.2011 at about 10 PM the accused and his associate were seen by PW13 Rajni while they SC No. 25/13 Dtd.. 26.08.2014 Page 21 of 41 22 were leaving the house of deceased. PW13 deposed that on that day at about 9.30 PM when she was returning to her room after purchasing milk, she saw the deceased and spoke to her. The witness deposed that after talking to the deceased, she went to her room. Thereafter, at about 10 PM when she was present at the roof of her room, she saw the accused and his associate going out of the house of deceased through the stairs. The witness specifically deposed that she saw them while leaving the house as they looked back twice. She also deposed that she knew the accused and his associate as both of them used to make chowmein and spring rolls etc. in the house of deceased. She also deposed that she had earlier identified the associate of accused also in the Juvenile Court.
8.2. Throughout in the cross examination of this witness, nothing at all could be brought out on record as to why this witness would falsely depose against the accused. No material contradiction or improbability of her presence at the time of incident at her residence could be brought out on record. Even in the cross examination, PW13 deposed that she had seen the accused and his associate earlier on many occasions as they used to work there, and therefore there can be no confusion as to identity of accused. There is no delay in recording of the statement of this witness and there is no reason for this witness to have falsely identified the accused or to falsely depose against the accused. Her testimony is inspiring and trustworthy.
8.3. Deposition of PW13 establishes the fact clearly that around the SC No. 25/13 Dtd.. 26.08.2014 Page 22 of 41 23 time of incident the accused and his associate were seen leaving the house of deceased.
8.4. It would also be pertinent to mention here that from the testimony of PW13, it is also clear that till sometime after 9.30 PM, the deceased was alive and kicking. The witness spoke to the deceased for a while before she went to her room and thereafter the deceased was found dead at about 11 PM by her husband. The time of the death of deceased as mentioned in the post mortem report also corresponds to the time of incident.
8.5. The said fact also brings out another fact to the fore that the two accused were present in Delhi on 15.10.2011 and they had not gone to their native village as told to PW6 while asking him to pay their wages. In this regard, it would be appropriate to discuss the testimony of DW1 Mamta also. Though this witness claims that her brother accused Umesh Chauhan left for the native village on 14.10.2011, but she admitted in her cross examination that she did not go to see off the accused at the railway station. Therefore, the witness cannot be absolutely sure that accused Umesh actually boarded any train and left Delhi on 14.10.2011 or any day prior to the date and time of incident. Even otherwise, this witness is real sister of accused Umesh and she had all the reasons to depose in favour of her brother. She never filed any police complaint to any authority to show that in any manner her brother was implicated in this case. She also did not prove any documentary proof in the form of railway ticket or passengers travelling SC No. 25/13 Dtd.. 26.08.2014 Page 23 of 41 24 chart to show that her brother had travelled out of Delhi on 14.10.2011 or any time before the time of incident on 15.10.2011.
8.6. Though, the accused and his sister DW1 claimed that the accused had left Delhi for his native place on 14.10.2011 but no witness has been examined to establish the fact that on the date of incident, the accused was either at his native place or he was travelling in the train at that time. No train tickets or records have been proved by the accused in his favour. No one from his native place has been examined by the accused to support his version that he was seen at his native place on 15.10.2011. The accused has also not proved the fact that if he was not in Delhi on 15.10.2011 as to where he was on that day and as to when did he return to Delhi before his apprehension from Delhi on 20.10.2011.
8.7. Explaining the essence of a plea of alibi, it was observed in Dudh Nath Pandey v. State of U.P., (1981) 2 SCC 166 that :
"The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place. The plea can therefore succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed."
8.8. This was more elaborately explained in Binay Kumar Singh v. State of Bihar, (1997) 1 SCC 283 in the following words :
SC No. 25/13 Dtd.. 26.08.2014 Page 24 of 41 25"22. We must bear in mind that an alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognized in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant."
"23. The Latin word alibi means "elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding SC No. 25/13 Dtd.. 26.08.2014 Page 25 of 41 26 his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi."
8.9. In Sk. Sattar v. State of Maharashtra, (2010) 8 SCC 430, it was held that plea of alibi has to be proved with absolute certainty so as to completely exclude the possibility of the presence of the accused at the place of incident at the relevant time.
8.10. When the presence of accused at the scene of occurrence is established by the prosecution satisfactorily, it was for the accused to have proved by cogent evidence completely excluding the possibility of the accused's presence at the spot, which he has failed to establish in this case.
8.11. These facts clearly prove the circumstance no. 2 that the accused and his associate were seen leaving the house of deceased about the time when the deceased was killed. This fact coupled with failure to prove alibi and no explanation as to why accused was present at the place of occurrence, is a strong circumstance against the accused.
9. Circumstance no. 3: that the mobile phone locations of the accused reveals that the accused was present within Jahangir Puri area as per SC No. 25/13 Dtd.. 26.08.2014 Page 26 of 41 27 the locations of mobile tower, at the time of incident;
9.1. So far as mobile location of the accused is concerned, the call details of the accused have been proved by PW29 Surender Kumar as Ex.PW29/A. This mobile phone no. 8750451209 was registered in the name of one Rani Devi. It would be worth mentioning here that PW29, who proved call detail records of the mobile phone used by the accused and the Cell ID tower location charts, was not cross examined by the accused despite opportunity and thus the testimony of PW29 as well as the documents exhibited by him went unrebutted. The accused cannot now challenge those call details and documents including Certificate U/s 65B of Evidence Act, as to mode of proof.
9.2. In his statement, the accused admitted that he was using this mobile no. 8750451209 in the month of October 2011. He admitted that he took this mobile from his jija Surajpal in August 2011. He claimed that from August 2011, he and his associate used to use that mobile. Regarding 15.10.2011, he claimed that on that day this mobile was not in his possession and it was in possession of his juvenile associate.
9.3. In this regard testimony of PW15 Shyam Sunder is relevant to be noted.
PW15 deposed that the mobile no. 8750451209 was his number which he had given to Surajpal around one and half months prior to 15.10.2011 and that Surajpal had handed it over to his brother-in-law Umesh Chauhan, the accused, who was using the said mobile number. He also deposed that Umesh and his associate were residing with SC No. 25/13 Dtd.. 26.08.2014 Page 27 of 41 28 Surajpal. In the cross examination of the witness, there was no suggestion at all by the accused to this witness that this accused was not using the mobile in question on 15.10.2011.
9.4. The call detail records of this mobile along with Cell ID Chart would reveal that at about 10 PM, the mobile phone in question was indeed within the area of Jahangir Puri, which fact corroborates the testimony of PW13 and which fact disproves the defence raised by the accused that he was not in Delhi on 15.10.2011. Even otherwise, the accused has not led any evidence by proving either the railway ticket or railway passenger travelling chart to show that he travelled out of Delhi during that time. He has also not examined a single witness from his native place to prove the fact that any time prior to the time of incident, he had reached his native village or as to where he was at the time of incident. Though the accused claims to have left Delhi and claims that he was not present in Delhi on the date and time of occurrence, but his mobile call location reveals that not only he was present in Delhi on the date and time of incident but also he was within the area where the murder was committed.
9.5. In his statement U/s 313 Cr.P.C, the accused admitted that he was using this mobile number that time and that he had taken this mobile from his brother-in-law Surajpal. The accused admitted that he took this mobile number from his jija Surajpal in August 2011. He also admitted that since August 2011, he and his associate were using this mobile number, but he claimed that on 15.10.2011 the mobile was not in his possession SC No. 25/13 Dtd.. 26.08.2014 Page 28 of 41 29 but was in possession of his associate. The Cell ID Chart Ex.PW27/G and the Call Detail Records of this mobile no. 8750451209 for the period 15.10.2011 to 19.10.2011 reveals that on 15.10.2011 between 8 PM to 10.19 PM, the phone was found within the area of Jahangir Puri. Between 8.01 PM to 8.14 PM, the location of this mobile is at Sanjay Enclave which is in Jahangir Puri. Thereafter at 10.15 to 10.19 PM, the mobile is located at Sanjay Nagar which again is in Jahangir Puri. At 10.25 PM, the mobile moves to Azadpur Sabzi Mandi and thereafter, its location, between 11.15 to 11.49 PM, is at Kashmere Gate, Delhi. This movement of mobile phone of accused corroborates the version of prosecution that after murder of deceased at about 10 PM the accused went to Azadpur and then to Kashmere Gate.
9.6. In the arrest of accused, mobile phone instrument, one make Nokia bearing IMEI no. 353632014429701 was recovered. It was in this mobile phone instrument the IDEA SIM no. 8750451209 was found at that time. One more mobile phone was recovered from the accused Umesh which was of make Videocon but in the said instrument, at that time there was no SIM found. Rather the IMEI number of this second mobile instrument would reveal that IDEA Cellular connection no. 8750451209 was used even in this instrument. The recovery of these two instruments in which the mobile connection number 8750451209 was used, from the possession of accused Umesh, clinches the issue that it was he, who was using that mobile at the relevant time. After the date of occurrence, on 16.10.2011, the position of mobile of accused is reflected in Uttar Pradesh and then on 17.10.2011, it is reflected in SC No. 25/13 Dtd.. 26.08.2014 Page 29 of 41 30 Bihar. Thereafter on 18.10.2011 till 6.05 PM, the mobile location is reflected in Uttar Pradesh and from 10 PM onwards it is reflected in Delhi. On 18.10.2011, at about 11.23 PM the mobile was located in the area of Jahangir Puri and on 19.10.2011 it was again located in Jahangir Puri at 9.08 to 9.45 AM.
9.7. Thus, the mobile location of the accused showing the presence of mobile at near the place of occurrence at the time of occurrence, coupled with the testimony of Rajni clinches the issue, so far as presence of the accused near the place of occurrence at the time of incident is concerned. Though the accused in his statement claimed that on the date of occurrence, this mobile was not in his possession but it appears to be nothing but an afterthought. The accused and his associate, as per the case of prosecution, were together while committing this crime. The present accused and his associate were seen by PW13 Smt. Rajni.
9.8. Therefore, this circumstance and the circumstance no. 2, both stands proved against the accused that he was present near the place of occurrence at the time of incident and he was seen leaving the house of deceased along with his associate about the time of incident.
9.9. The circumstance is thus proved beyond doubt that the accused was present in Delhi on the date and time of incident and he was indeed present within Jahangir Puri at the time of incident and that he was seen coming out of the house of deceased at or about the time of incident. False plea taken by the accused as to his SC No. 25/13 Dtd.. 26.08.2014 Page 30 of 41 31 presence is also a circumstance against him.
10. Circumstance no. 4- that the accused and his associate were apprehended from outside Old Delhi Railway Station on 20.10.2011, whereas, the accused claimed to have left Delhi for his native place.
10.1. The next circumstance relied upon by the prosecution against the accused is that he was arrested at Old Delhi Railway Station on 20.08.2011. To prove the said fact prosecution has examined PW14 SI Manoj, PW20 HC Praveen and PW26 Inspector Hemant. All these three witnesses deposed that the accused and his associate were arrested from outside Old Delhi Railway Station towards Kashmere Gate side. Their testimony is corroborated by PW6 Naresh who also claimed that he was taken to that place on 20.10.2011 and the accused was arrested in his presence. Thus, even though the accused claimed that he had left Delhi on 13.10.2011, but he was found present in Delhi on 20.10.2011 and was arrested. After the date of occurrence, on 16.10.2011, the position of mobile of accused is reflected in Uttar Pradesh and then on 17.10.2011, it is reflected in Bihar. Thereafter on 18.10.2011 till 6.05 PM, the mobile location is reflected in Uttar Pradesh and in the midnight from 10 PM onwards it is reflected in Delhi. On 18.10.2011, at about 11.23 PM the mobile was located in the area of Jahangir Puri and on 19.10.2011 it was again located in Jahangir Puri at 9.08 to 9.45 AM. These things reflect upon the subsequent conduct of the accused and his movements, which appear to be suspicious.
11. Circumstance no. 5 that the accused and his associate, pursuant to SC No. 25/13 Dtd.. 26.08.2014 Page 31 of 41 32 their disclosure statements, led to the place of occurrence where pointing out memos of crime spot were prepared;
11.1. The next circumstance relied against the accused is that the accused made a disclosure statement and then led the police team to the crime scene where pointing out memo of the crime scene was prepared by the investigating officer at the instance of accused. The said pointing out memo has been exhibited as Ex.PW6/C. Even before the arrest of accused the crime scene was within the knowledge of investigating agency and therefore, no fact can be said to have been discovered pursuant to the disclosure or the pointing out the accused, and therefore the circumstance of the pointing out of the place of occurrence is of absolutely no help to the prosecution, and cannot be relied against the accused.
12. Circumstance no. 6, that the accused and his associate, pursuant to their disclosure statements, led to recovery of their respective clothes from Jahangir Puri area which clothes were bearing blood stains with the same blood group of the deceased and inside the clothes of accused Umesh, a mala with key, which was missing from the neck of deceased were found.
12.1. The next circumstance relied upon by the prosecution is that at the instance of accused is his blood stained clothes were recovered, pursuant to his disclosure statement. Arrest witnesses PW14, PW20 and PW26 consistently deposed that after the accused was arrested from outside the Old Delhi Railway Station, the accused made SC No. 25/13 Dtd.. 26.08.2014 Page 32 of 41 33 disclosure statement Ex.PW14/B and he led the police team to the backside of CNG Pump, Mukarba Chowk, near DDA Central Store Fore wall and from bushes he got recovered his clothes i.e. one T-Shirt of white colour and one Navy Blue pant. Inside one of the pocket of the pant, one mala with key was also found. That mala and key was missing from the body of deceased after her murder. Those clothes and the mala were sealed with the seal of HK and were taken into possession vide memo Ex.PW14/D. The clothes of this accused are proved in the evidence as Ex.P-2 and the mala and key is also proved as Ex.P-1. During cross examination of these three arrest and recovery witnesses, PW14, PW20 and PW26, absolutely nothing substantial could be brought out on record to impeach their trustworthiness. They have no reason to falsely depose against the accused or to falsely implicate the accused. It is not the case of the accused that the clothes produced were not fitting his size. He has not taken any such plea. Place of recovery is not far off from the place of murder. Though some minor contradictions occur in the testimony of these witnesses as to how these witnesses reached Old Delhi Railway Station and then to the place of recovery but those contradictions do not affect the overall truthfulness of their version. The minor contradictions occurring at few places in the testimony of the recovery witnesses are extremely trivial in nature which does not affect the roots of the present case on any substantial aspect of the matter. Certain small contradictions are bound to occur when the witnesses are examined in the court after a considerable time of the incident. No two witnesses can depose verbatim same. One cannot lose sight of the fact that police officials become witness in a large number of SC No. 25/13 Dtd.. 26.08.2014 Page 33 of 41 34 criminal cases and between the investigation of a case and its evidence in court they may have witnessed other cases also and therefore expecting meticulous evidence with mathematical precision is unjustified from such police officials. Those trivial contradictions cannot be therefore given any weightage whatsoever and they cannot be read in favour of the accused.
12.2. It is argued by the accused that the complainant was not joined as a witness at the time of recovery, although he is a witness of arrest of the accused. Indeed, complainant Naresh was present at the time of arrest of accused at Old Delhi Railway Station but his signatures does not appear in the disclosure statement or recovery memo of clothes, but then the prosecution witness PW14, PW20 & PW26 have claimed that the complainant left and did not join them till the place of recovery. The complainant had a reasonable excuse for not continuing in the police proceedings. His wife was lost few days ago and he had two minor children, one of them was an infant of few months at the relevant time. He could not have been expected to leave his minor children alone for long and to stay with the police during proceedings. The prosecution witnesses have claimed that they attempted to join independent witnesses but none came forward. Merely because other independent witnesses were not joined at the time of recovery of clothes is not a ground to disbelieve the testimony of police officials. It is not mandatory in law that the police official's testimony must be corroborated from independent source. If the testimony of police officials is found trustworthy, it can be acted upon.
SC No. 25/13 Dtd.. 26.08.2014 Page 34 of 41 3512.3. In Criminal Appeal No. 2302 of 2010 titled as Gian Chand & Ors.
vs. State of Haryana, decided on July 23, 2013, Hon'ble Apex court held as follows;
"25. The next question for consideration does arise as to whether it is necessary to examine an independent witness and further as to whether a case can be seen with doubt where all the witnesses are from the police department.
In Rohtash v. State of Haryana JT 2013 (8) SC 181, this court considered the issue at length and after placing reliance upon its earlier judgments came to the conclusion that where all witnesses are from the police department, their depositions must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force, and are either interested in the investigating or the prosecuting agency. However, as far as possible the corroboration of their evidence on material particulars should be sought. The Court held as under:
"Thus, a witness is normally considered to be independent, unless he springs from sources which are likely to be tainted and this usually means that the said witness has cause, to bear such enmity against the accused, so as to implicate him falsely. In view of the above, there can be no prohibition to the effect that a policeman cannot be a witness, or that his deposition cannot be relied upon."
(See also: Paras Ram v. State of Haryana, AIR 1993 SC 1212; Balbir Singh v.State, (1996) 11 SCC 139; Akmal Ahmad v. State of Delhi, AIR 1999 SC 1315; M. Prabhulal v. Assistant Director, Directorate of SC No. 25/13 Dtd.. 26.08.2014 Page 35 of 41 36 Revenue Intelligence, AIR 2003 SC 4311; and Ravinderan @ John v. Superintendent of Customs, AIR 2007 SC 2040).
26. In State, Govt. of NCT of Delhi v. Sunil. (2001) 1 SCC 652, this Court examined a similar issue in a case where no person had agreed to affix his signature on the document. The Court observed that it is an archaic notion that actions of the police officer should be viewed with initial distrust. At any rate, the court cannot begin with the presumption that police records are untrustworthy. As a proposition of law the presumption should be the other way around. The wise principle of presumption, which is also recognised by the legislature, is that judicial and official acts are regularly performed. Hence, when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe that version to be correct if it is not otherwise shown to be unreliable. The burden is on the accused, through cross-examination of witnesses or through other materials, to show that the evidence of the police officer is unreliable. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume that police action is unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.
27. In Appabhai v. State of Gujarat AIR 1988 SC 696, this court dealt with the issue of non-examining the independent witnesses and held as SC No. 25/13 Dtd.. 26.08.2014 Page 36 of 41 37 under:
"The prosecution case cannot be thrown out or doubted on that ground alone. 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 the 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."
28. The principle of law laid down hereinabove is fully applicable to the facts of the present case. Therefore, mere non-joining of an independent witness where the evidence of the prosecution witnesses may be found to be cogent, convincing, creditworthy and reliable, cannot cast doubt on the version forwarded by the prosecution if there seems to be no reason on record to falsely implicate the appellants.
29. In the instant case at the time of incident some villagers had gathered there. The Investigating Officer in his cross-examination has made it clear that in spite of his best persuasion, none of them were willing to become a witness. Therefore, he could not examine any independent witness.
Section 114 of the Act 1872 gives rise to the presumption that every official act done by the police was regularly performed and such presumption requires rebuttal. The legal maxim omnia praesumuntur rite it dowee probetur in contrarium solenniter esse acta i.e., all the acts SC No. 25/13 Dtd.. 26.08.2014 Page 37 of 41 38 are presumed to have been done rightly and regularly, applies. When acts are of official nature and went through the process of scrutiny by official persons, a presumption arises that the said acts have regularly been performed."
12.4. The accused, after he was produced before the court never claimed that recovery has been planted upon him. Even during trial, the accused did not claim that those clothes were not belonging to him. The accused also did not challenge the disclosure statement immediately after his appearance before the court during investigation or after conclusion of investigation. Even if he was unaware of the documents of prosecution during investigation, the accused was supplied copies after filing of charge sheet. The accused did not retract the disclosure and did not take the plea that his signatures on these documents were taken forcibly or in other manner. Thus, the prosecution succeeds in proving the fact that clothes of accused were recovered at his instance.
12.5. Pant of accused was containing mala with key which was missing from the house of deceased. The said mala and key was identified by the complainant during test identification parade of this case. He identified it correctly.
12.6. The clothes of accused were bearing blood stains at the time of recovery. Those clothes were sent to the FSL for examination. In the FSL result Ex.PW27/A & B, it is established that the pants of accused recovered at his instance, human blood group of 'A' group was there. Even in the T-shirt of accused, human blood group was present but its SC No. 25/13 Dtd.. 26.08.2014 Page 38 of 41 39 blood group could not be determined. It would be relevant to note here that the blood sample lifted from the spot and the blood group from the blood stains lifted from the clothes of the deceased as well as the blood group on the knife and the blood group on the clothes of complainant were all of A Group. On all these articles, human blood was found and except the cemented pieces and lock and keys recovered from the room, whose blood group could not be determined, the other articles was containing human blood of A group. The accused has not explained as to in what circumstances blood stains were there on his clothes, particularly of A group, which blood group belonged to the deceased. There is no evidence of tampering of case property as the case property received in the FSL was duly sealed and matched with the specimen seal as contained in Ex.PW27/A. It is not the case of accused that he has a blood group of A category.
12.7. In such circumstances, even the last circumstance is proved by the prosecution against the accused.
13. The above mentioned circumstances proved against the accused clearly points towards the guilt of the accused. It was the accused and his associate who had an easy access in the house of deceased as they were known to the victim. It may be mentioned here that there were no signs of forced entry into the house of deceased at the time of incident which indicates that the assailants were known to the victim. The accused was indeed known to her. The weapon used in the present matter is a knife and the said knife was picked up from the house itself, SC No. 25/13 Dtd.. 26.08.2014 Page 39 of 41 40 which circumstance again points towards guilt of accused as it was the accused and his associate who knew availability of knife in the room for the reasons that the said knife was used in preparation of momos, spring rolls and for cutting vegetables etc. The knife at the time of its use was wrapped with a diaper of the infant, deliberately, to avoid finger prints on it. The said knife and knife were recovered from the crime scene. The exhibits collected from the spot matched with the blood group of the deceased including the knife. The accused and his associate were seen moving away from the house of deceased at the time of incident. The mobile phone location of accused is at the place of incident at the relevant time. The conduct of the accused of being available in Delhi on 15.10.2011 despite the fact that he took money from the complainant on 13.10.2011on the pretext of going to native place and that the accused left the house of his sister stating that he is going to Bihar, again strongly points out that he intentionally stayed in Delhi for commission of crime. He had a motive to commit the crime as mentioned above. His blood stained clothes recovered at his instance and the mala with key recovered at his instance are again circumstance which prove his guilt, beyond reasonable doubt.
14. All these circumstances taken together clearly prove that it was the accused Umesh Chauhan who with his juvenile associate committed the crime and murdered the deceased. The act committed by the accused falls within the definition of culpable homicide amounting to murder, as defined in Sec. 300 of IPC, punishable U/s 302 of IPC r/w 34 of IPC. It falls within the four corners of definition of SC No. 25/13 Dtd.. 26.08.2014 Page 40 of 41 41 murder as provided in Section 300 of IPC. The accused is found guilty and is convicted U/s 302 IPC read with section 34 IPC.
Announced in the open court on 26th day of August, 2014. Dig Vinay Singh ASJ/Special Judge : NDPS Rohini Courts(N-W)/Delhi SC No. 25/13 Dtd.. 26.08.2014 Page 41 of 41