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Delhi District Court

Kirshnappa vs State Of Karnataka, Air 1983 Sc 446 And ... on 20 September, 2010

     IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
      ADDITIONAL SESSIONS JUDGE (WEST­04), DELHI

SC No. : 12/3/08

State
             Versus

1. Naresh Kumar
   S/o Manik Chand
   R/o G­3/125, Sector­16
   Rohini, New Delhi. 

2. Dharmender Kumar @ Babloo
   S/o Nafe Singh
   R/o J­309, 40 Feet Road
   Prem Nagar Kirari, Nangloi, Delhi.

3. Harish Chand
   S/o Dev Narayan
   R/o A­37, Vishnu Garden
   Near Ration Office, Tilak Nagar, Delhi. 

Case arising out of : 
            FIR No. : 807/07
            U/s :  302/201/397/411/34 IPC
            P.S. : Tilak Nagar

Date of FIR                        : 21.12.2007
Date of Institution                : 13.10.2008
Date of Final Arguments            : 09.09.2010
Judgment reserved on               : 09.09.2010
Date of judgment                   : 13.09.2010



S.C. No.12/3/08                                   Page 1 of 67
 JUDGMENT                  

1. The facts as germane from the prosecution story are that on 20.12.2007, PW­20 ASI Gurcharan Singh received a DD NO. 24A and he alongwith Ct. Om Parkash reached at Amar Leela Hospital Janakpuri where a dead body of one lady Beena was found outside on a trolley. On formal inspection some injury marks were observed on her head and bleeding from her nose. Her mother who was present there informed that the marriage of Beena has taken place in year December, 2006. ASI Gurcharan Singh informed the SDM of the area and the dead body was sent for post mortem to DDU Hospital. He reached at the place of incident at house No. WZ 154, Second Floor, Gali No. 8, Krishna Park, where found that the blood stains were already wiped off and the articles were lying scattered. Crime Team reached at the spot, photographs of the spot were taken and SDM recorded the statement of relatives of the deceased and had conducted inquest proceedings. The SDM had also recorded the statement of husband of deceased Santosh Kumar vide Ex. PW1/B and Kulwant Devi vide Ex. PW20/A. The application for post mortem is Ex. PW20/B. The dead body after post mortem was handed over to the relatives of the deceased vide Ex.PW15/B. At the instruction of SDM, ASI Gurcharan Singh prepared rukka vide Ex.PW20/C and case was got registered. Thereafter the investigation was handed over to Inspector Kamal Singh, who came to the spot and inspected the site and seized the articles from the spot like Chunni, one suit, one sweater, one Nada of Salwar, one pair of lady chappal which were S.C. No.12/3/08 Page 2 of 67 seized in the pullanda and seized vide memo Ex.PW19B. A pillow was sealed in a pullanda and seized vide memo Ex.PW19/C and two empty glasses of tea also seized vide memo Ex.PW19/D. The investigating officer had also picked up blood from the spot with the help of cotton and the earth control stained with blood or without blood which were sealed in three different pullandas with the seal of KS vide memo Ex.PW19/A. The IO had also collected the sealed pullanda of Viscera from DDU Hospital vide memo Ex.PW20/D. ASI Gurcharan Singh again joined the investigation. Naresh was already arrested by Crime Branch and the investigating officer had taken his police remand after his arrest vide arrest memo Ex.PW9/A. Disclosure statement of Naresh PW9/B & Ex.PW16/C was recorded. Accused Naresh pointed out the place of incident and from his house G­3/125, Sector­16 at Rohini. On 19.07.2008, got recovered from the Almirah of his bedroom two gold rings and one pair of ladies tops and pulandas were prepared of jewellery articles sealed with the seal of GSG vide seizure memo Ex.PW9/G. From there, ASI Gurcharan Singh with other staff went to the house of Dharmendar @ Bablu at J­309 Nangloi Kirari, the accused Dharmender from the Dewan of his bedroom got recovered one pair of tops vide memo Ex.PW9/F. He disclosed to have sold the mobile to his friend Sanjay Tiwari who was residing at A­3275 Rani Bagh. Accused Dharmendar was arrested vide memo Ex.PW9/C and his personal search conducted vide memo ExPW9/D. Disclosure statement of accused Dharmender is ExPW9/E. Then ASI Gurcharan with other staff went to Rani Bagh at the house of Sanjay Tiwari who produced a mobile phone Samsung Make of grey colour S.C. No.12/3/08 Page 3 of 67 and also produced one receipt of Rs.3,500/­ and informed that he had got the mobile phone from Dharmendar @Bablu. The said mobile phone was seized vide memo Ex.PW9/H. Receipt was seized vide memo Ex.PW9/I and the receipt is Ex.PW9/J. On 20.07.2008, ASI Gurcharan Singh with accused Naresh and Dharmendar went at A­37 Vishnu Garden where found one Harish to whom both identified as the jeweller who had melted the jewellery articles and sold by them. Harish got recovered one golden chain and one Tika which was also sealed in a pullanda with the seal of GSG and seized vide memo Ex.PW9/K. Accused Harish Chand was also arrested vide arrest memo Ex.PW9/M, his personal search conducted vide memo Ex.PW9/N and his disclosure statement recorded vide Ex.PW9/L. The mobile phone Samsung is Ex.P1. Two tops and two gold rings which have been recovered from accused Dharmendar alias Bablu are Ex P3. One pair of tops of gold which have been recovered from accused Naresh are Ex as P4. One Tika and one chain which have been recovered from accused Harish are Ex.P5. One marbel piece tile having light shades is Ex.P6. One Salwar, one shirt, dupatta, sweater, one Nada, one pair of chappal are collectively Ex.P8. One Pillow of Maroon colour pillow is Ex.P9.

PW­34 Insp. Kamal Singh received the information on 21.12.2007, he alongwith ASI Gurcharan Singh, Ct. Om Parkash along with other staff reached the place of occurrence at WZ­154, Second Floor, Gali No. 8, Krishna Park, Tilak Nagar. The flat was locked by the previous investigating officer to keep the spot of occurrence protected and intact and it was opened with the keys which were with S.C. No.12/3/08 Page 4 of 67 ASI Gurcharan Singh. Insp. Kamal Singh inspected the place of occurrence and prepared the site plan Ex.PW34/A at the pointing out of Kulwant Kaur. Insp. Kamal Singh seized the blood and the earth control and blood stained tile from the spot vide seizure memo Ex.PW19/A. Insp. Kamal Singh also seized various cloths and one pair of blood stained sleepers and the same were seized vide seizure memo Ex.PW19/B and the pullanda was sealed with seal of KS. In the above seizure memo the articles seized were, suit ( Salwar Kameej). Chunni, Sweater, Nada, one pair blood stained sleeper. Insp. Kamal Singh also seized one pillow which was lying on the double bed and having a Saliva stains, the same was seized vide memo Ex.PW19/C and sealed with seal of KS. He had also seized two glasses which were lying on the floor behind the bed and the same were seized vide memo Ex.PW19/D. He also recorded statement of Kulwant Kaur and other relatives present at the spot. PW­34 Insp. Kamal Singh along with the police staff reached Amar Leela Hospital and collected the report of the deceased Veena from Dr. Usha Singh who had examined the deceased on 20.12.2007 vide Ex.PW22/A. Insp. Kamal Singh searched for the accused but none could be found on that day. He had also collected DD NO. 24A dated 20.12.07, DD 28A dated 20.12.07, crime report vide Ex.PW15/A and the MLC of Bina vide Ex.PW23/A and the post mortem papers vide Ex. PW20/B, Ex. PW15/A1 to A3 and Ex. PW13/A. He also recorded the statement of the police officials. On 23.12.2007, he again reached the place of occurrence alongwith ASI Gurcharan and Ct. Om Parkash and met Santosh Kumar, husband of deceased and Babita, mother of the deceased and S.C. No.12/3/08 Page 5 of 67 other relatives. Santosh Kumar handed over a packing box of Samsung phone and the user book vide memo Ex.PW1/A. He also recorded the statement of Santosh Kumar in this regard and other witnesses. On 26.12.2007, Insp. Kamal Singh recorded the statements of Ramesh Kumar and other witnesses at the place of occurrence. On 07.01.2008, Insp. Kamal Singh went to the office of SDM, Patel Nagar, Rampura and recorded statement of Pramod Kumar, SDM Patel Nagar and got forwarded the forwarding letter of viscera. On 08.01.2008 the viscera was sent for forensic examination through Ct. Jai Singh. He also interrogated other family members of deceased and accused Naresh Kumar and his family members. Insp. Kamal Singh collected the telephone details of deceased Bina and her husband Santosh Kumar, accused Naresh and other friends and relatives of deceased. He also got the scaled site plan prepared by SI Mahesh Kumar and collected 11 photographs from the Crime Team and 6 photos from private photographers vide Ex.PW13/A and negatives are Ex.PW29/B collectively. Insp. Kamal Singh got the TIP of recovered case property done and the case property was duly identified by the complainant. He also got the recovered Samsung Mobile Phone technically examined from Samsung Company vide the report is Ex.PW26/A. Insp. Kamal Singh sent the exhibits to FSL Rohini for examination and the result of the same is marked D and E. He also received the viscera reports vide Ex.PW25/A. Death summary is mark F. The investigation of the case has also remained with Insp. Surender Dev who has arrested the accused persons and also recovered the case property.

PW­27 Insp. Surender Dev stated in his deposition that on 15.07.08, he received the investigation of the present case. On 18.07.08, an information was received through SI Mukesh from Homicidal Section Crime Branch Rohini and the information was reduced into writing vide DD 3B. He went to the District Court Rohini along with the staff where the accused Naresh was produced. After obtaining the orders of the court accused Naresh was interrogated and arrested vide arrest memo Ex Pw9/A. Insp. Surender Dev also obtained the photocopies of disclosure statement and other documents from the investigating officer of the other case. The copy of the Kalandara is Ex.PW18/B. The DD entry is Ex.PW18/C and Ex.PW18/A. The disclosure statement is Ex.PW16/C and copies of personal search and arrest memo are Ex.PW16/A and Ex.PW16/B. He had also obtained the personal search from the previous arresting officers and also recorded the statements under section 161 Cr.P.C. of the Crime Branch Officials. Accused Naresh was taken on two days police custody remand. The accused Naresh was interrogated and again his disclosure statement was recorded vide Ex.PW9/B. The accused led to the place of occurrence and a pointing out memo in this regard is prepared vide Ex.PW9/O. PW27 Insp. Surender Dev also recorded the statement of witnesses and the accused Naresh was put up in lockup. On 19.07.2008, he had again brought accused Naresh from the Lock Up and joined him in the investigation along with the Staff. The accused took them to G­3/125 Sector­16, Rohini at his house and produced two gold rings and one pair of Ear tops which were seized vide seizure memo Ex.PW9/G. Since the accused Naresh S.C. No.12/3/08 Page 7 of 67 had disclosed that he had given some of the articles to his associate Dharmender, then he took them to the house of the accused Dharmender at J­309 40 Foota Road Prem Nagar Nangloi where accused Dharmender met who was interrogated and arrested vide arrest memo Ex.PW9/C and personal search ExPW9/D. Accused made a disclosure statement vide Ex.PW9/E. The accused Dharmender took out one pair of gold ear tops which were seized vide seizure memo Ex.PW9/F. Accused Dharmender led to the house of Sanjay Tiwari where who told that he bought the mobile phone for Rs.3500/­ from Dharmender. Sanjay Tiwari produced the Samsung Mobile phone and the same was seized vide memo Ex.PW9/H. Sanjay Tiwari also produced a receipt vide Ex.PW9/J. He also recorded the statement of Sanjay Tiwari. On 20.07.08, Insp. Surender Dev had gone to the house of the other accused Harish to whom parts of the jewellery was handed over who had converted the jewellery into solid gold by melting and accused Harish had purchased the jewellery for Rs.7,00,000/­ from accused Dharmender. Accused Harish produced a Tika and a gold chain vide seizure memo Ex.PW9/K. The arrest documents of accused Harish were prepared vide memo Ex.PW9/M and Ex.PW9/H. He also recorded the statement of witnesses. Later on the file was handed over to MHC (R). He has also identified the case property in the court.

After completion of the investigation, the challan was filed in the court and after compliance of the committal proceedings the case file was assigned.

Charge under section 302/392/201/411 IPC was framed S.C. No.12/3/08 Page 8 of 67 against the accused Naresh Kumar with the allegations that on 20.12.2007 between 10:00AM to 12:00 Noon at WZ­154, 2nd Floor, Gali No.8, Krishna Park, Tilak Nagar he committed the murder of Beena by strangulating her throat and mouth and also committed robbery in the house and took away jewellery articles belonging to the deceased Beena. After committing the murder and robbery the accused knowingly caused of the commission of the offence to disappear with the intention to save himself from legal punishment. It is further alleged that on 19.07.2008, the accused Naresh got recovered from his residential house at G­3/125, Sector­16, Rohini, Delhi two gold rings and one pair of lady's tops belonging to Beena which he retained dishonestly knowing to be stolen property. The accused Naresh pleaded not guilty and claimed trial.

Co­accused Dharmender Kumar @ Bablu also charged for the offence under section 201/411 IPC. It is alleged against him that his co­accused Naresh after committing the murder of Beena and robbery in the house and took away the jewellery articles belonging to Beena about which he disclosed to the accused Dharmender and he helped the accused Naresh in disposing off the jewellery articles of robbery and also aided Naresh in causing disappearance of the evidence of the commission of the offence with the intention to save Naresh and himself. On 20.12.2007 after committing the murder of Beena, the accused Dharmender was apprehended and on 09.07.2008, he got recovered one pair of lady' s tops belonging to Beena which he retained dishonestly knowing to be stolen property and also helped the accused Naresh in removing the evidence of commission of the crime.

The accused Dharmender also pleaded not guilty and claimed trial.

Accused Harish Chand also facing charges for the offence under section 411 IPC with the allegations that on 19.07.2008, he got recovered from his residential house one gold chain and one Tika belonging to Beena which he retained dishonestly knowing to be stolen property. He also pleaded not guilty and claimed trial.

2. Since the accused persons contested the case, as such the case was proceeded for trial and to be examined the prosecution witnesses as per the list of witnesses. The prosecution examined in all 35 witnesses.

PW­1 Santosh Kumar stated in his deposition that on 20.12.2007, he was present at his shop at Karol Bagh. At about 01.30PM, he received a call of Tammna who is relative of his wife that she has come at his house and Beena his wife was not present there. PW­1 Santosh told his brohter about this and at about 02.30PM, he reached his house and found his Bhabhi Rajni and Sister Kulwant and Tammna there. The gate of the house was closed at second floor. He went out to search for his wife, he came to his house and found that gate was opened by the relatives and found his wife there in semi naked condition. The house was ransacked and a theft had taken place. He took his wife to hospital as she was bleeding from her mouth she was treated in Amar Leela hospital and she was declared dead. Police had also reached at the hospital and at house no. WZ­ 154, 2nd Floor, Gali No.8, Kashmere Gate also. Post mortem of the dead body of his wife (Beena) was conducted, he had informed his in­ laws. SDM of the area had also reached. The police had inspected his S.C. No.12/3/08 Page 10 of 67 house and found that the jewellery articles i.e. three sets of gold, two gold bangles, one bracelet, some rings and one gold chain and one mobile phone was missing. He does not remember the other details of jewelry articles. The mobile phone was of Samsung company which belong to his wife. It was having connection no. 9910201596. Somebody had committed robbery in his house and caused death of his wife. Police had seized one packing box of mobile phone with user guide vide memo Ex.PW1/A. His statement was also recored by the police at the time of post mortem of his wife which is Ex.PW1/B. Police had called him several times to police station and they wanted to arrest him. Even his family members were called by the police. He has not come to know if the robbers were apprehended by the police or not. Police was insisting to arrest him and his family members as his wife had died in the incident. He and his family members were detained by the police for several days. His brother Naresh was detained and arrested by the Police but his brother Naresh had not done any wrong and it was because of the pressure of his in laws, his brother was arrested. PW­1 Santosh was declared hostile by the Ld. APP and in the cross examination of APP, it is stated that he had come to know that police had investigated the matter and found his brother Naresh involved in the incident. He does not know the other two persons present in the court. He had not come to know that two rings and one pair of tops were recovered from the possession and at instance of accused Naresh Kumar which belongs to his wife and were taken away from his house on the day of incidence of robbery in his house. He has no knowledge what articles were recovered or not. He S.C. No.12/3/08 Page 11 of 67 had purchased the mobile phone make samsung to his wife. He does not have the receipt of purchase of the said mobile phone nor he can produce the same. He had mentioned about one pair of tops and one chain and other jewelery articles. He denied the suggestions put to him by Ld. APP for state.

PW­2 Ramesh Kumar testified that on 20.12.2007, he had gone to the house of Santosh and took him on his motorcycle and then went to his shop at Karol Bagh. At about 02.00PM, Santosh received a call from Tamanna that Beena was not present at the house. He asked Santosh to go home on his motorcycle. When he inquired from Santosh on telephone he informed that the house was locked from inside. He also searched for Beena here and there. After some time, he received a telephone call from Naresh for breaking the gate of the house and was informed that a robbery had taken place in the house and Beena was found in injured condition and she was taken to the hospital. He reached Amar Lila Hospital at Janakpuri where the doctor declared Beena dead. He had not come to know who had committed robbery and caused death of Beena.

PW­3 Kulwant Kaur, sister in law of the deceased Beena, stated in her deposition that the deceased Beena was her sister in law and she was married with her brother Santosh. She can not tell the date of marriage. She stated that her brother Santosh and Bina were living separately at Gali No. 8, Tilak Nagar, Delhi. She cannot tell the date of incident, at about 03.30PM her bhabhi Rajni and Tamanna came to her and told that Bina was not present in her house. Accused Naresh was present in the house. PW­3 Kulwant Kaur along with S.C. No.12/3/08 Page 12 of 67 Naresh, Rajni and Tamanna reached at the house of Beena. The door of the house was found locked from inside and several persons from public were gathered. Naresh was sent to bring a key maker who could not open the door and door was break opened after breaking the lock. Beena was found in a semi nude condition and the articles of the house were scattered. She was taken to Amar Lila Hospital and doctors found her dead in the hospital. Police reached the hospital and in laws of Santosh also reached in the hospital. Police had visited house of Santosh and inspected the house and made inquiries.

PW­5 Babita is the mother of the deceased Beena. She testified that the deceased Beena married to Santosh on 10.12.2006 and she was living at Tilak Nagar in her matrimonial house. PW­5 Babita alongwith her another daughter Meenakshi had gone to the house of Santosh on their marriage anniversary which held after one year of the marriage and given several gifts and articles to her daughter and son­in­law. She stayed there for one night. Naresh the elder brother of Santosh was called but he did not come. She returned back to her house and after 3/4 days, she received a telephone call from Santosh from his shop at about 11:00 AM who inquired if she had talked with Beena, as Beena was not picking up the phone. PW­5 Babita advised him to go to the house and she again telephoned Santosh and requested him to reach at the house. When she tried to contact Santosh third time, then his mobile phone was found switched off. She along with her son Sushant and daughter Meenakshi came to Delhi at Tilak Nagar at the house of Santosh. When they were on the way from Faridabad to Tilak Nagar, she received a call from Santosh S.C. No.12/3/08 Page 13 of 67 that house was locked then she again told him to break open the door and when she reached there, the doors of the house were found opened. The deceased Beena was already taken to hospital by Santosh and others. She also went to the Amarleela Hospital, Tilak Nagar where she came to know that her daughter Beena had died. Sanotsh, his brother Naresh and his sister were taking back her daughter to the house. Ricky called the police and dead body of Beena was taken to Govt. hospital for post mortem and after the post mortem her dead body was brought to the house of Santosh at Tilak Nagar. Police had recorded her statement. Inquiry were made from her in the police station. She identified the dead body of her daughter vide her statement Ex.PW5/A. She observed some injury mark on the neck of the dead body of her daughter Beena. Santosh had once told her that her daughter Beena should remain aloof from Naresh as he was not a good person and he further told her that Naresh was in the habit of gambling. Once her daughter Beena also showed fear from Naresh. She had suspected Naresh and Santosh when she gave statement to the police and told the police that there used to be quarrels between her daughter Beena and Santosh, as Beena was against Santosh's habit of drinking and used to ask Santosh to refrain from liquor. PW­5 Babita had given lot of dowry articles to her daughter in the marriage including jewellery articles like one gold set, four gold bangles, four gold rings, the other jewellery articles which she does not remember. PW­5 Babita was also cross examined by Ld. APP for state and in the cross examination, she admitted that she met SDM Pramod Kumar. She does not remember if her statement was recorded by the said SDM S.C. No.12/3/08 Page 14 of 67 Pramod Kumar. It is also admitted that she told the SDM that marriage was an arranged marriage and no dowry was demanded and her daughter never told her anything regarding demand of dowry. She had gone to Mahavir Nagar on 15.12.2007 with her nephew and daughter Meenakshi. It is admitted that her daughter had told her on 16.12.2007 that her brother­in­law Naresh was making her understand that she should not listen to the talks of her Nanads, they wanted to make them fight amongst themselves and was instigating Santosh that they would get Santosh married again as her daughter was not getting pregnant. It is also admitted that Santosh and his brother Naresh were also having amicable quarrels amongst themselves. It is also admitted that she had come to know later on, that Naresh brother of Santosh had caused death of her daughter Beena. She further admitted in her statement that on 14.12.2007, her daughter Beena told her that her Jeth Naresh comes in the absence of Santosh in her bedroom and for last 3/4 days he was continuously coming in her bedroom and used to sleep there. It is further admitted that Beena told her that Naresh used to tell her that she should keep her jewellery properly and she was putting lot of sugar in the tea and she should not tell everything to her Nanads as they were instigating Santosh regarding that she was not having a child. Beena also told her that she was afraid of accused Naresh and she had also advised her to remain careful as her husband was having good relation with her daughter. It is also admitted that she met the police when she came again to the house of Santosh after performing last rites of her daughter and had given a list of jewellery articles to the police. She also informed the police that she had given S.C. No.12/3/08 Page 15 of 67 one gold set, three gold rings (male), two rings (female), three pairs Baali gold (female), four gold bangles, one gold chain, one gold bracelet, one gold pendal. She also told the police that from the in­ laws of her daughter' s side she was given two gold sets with one ring, two jhumkas, one Tika, four rings, one pandle, two gold chains, two gold coins, two pairs of ear rings and one mobile phone. All these jewellery articles and mobile phone were missing from the day of incident. It is further admitted that she had suspected and told police that all the jewellery articles and mobile phone were taken by the person who had committed murder of her daughter and looted the house. It is also admitted that she had identified the jewellery articles belonging to her daughter at Rohini Courts in the presence of Ld. Judge and two gold rings, one pair of tops, one gold neck chain and one gold Tika. She also joined the the TIP proceedings as conducted by the Ld. Judge vide Ex.PW5/D. She also identified the case property produced by the MHC(M). She identified two gold rings and one pair of tops vide Ex.P3. Another pair of tops which are not identified by her are Ex.P4. One gold chain, one gold Tika are Ex.P5 and the mobile phone of black colour Samsung is Ex.P1.

PW­6 Sushant Malhotra is the brother of the deceased Beena. He stated in his statement that his sister Beena was married to Santosh in December 2006 and was living at her matrimonial house at Tilak Nagar. He used to hear from his mother that Naresh brother of Santosh was not a good person and Naresh was in the habit of drinking and demanding money from Santosh. After about one year of the marriage, he received a call at his house that his sister Beena was S.C. No.12/3/08 Page 16 of 67 murdered. At that time, he did not come to know who caused murder. He along with his sister Meenakshi and mother had come to Tilak Nagar at the house of Santosh, Then they reached Amarleela hospital where Beena was declared dead. Police had come at Amarleela hospital and post mortem on the dead body was conducted. He identified the dead body of his sister vide statement Ex.PW6/A. Accused Naresh was also present at Amarleela hospital and was in a shattering condition and had left early. Police had made inquiries from him regarding his deceased sister.

PW­7 Devinder Kaur was declared hostile by the prosecution and also cross examined at length by Ld. APP for state. In the cross examination she admitted that her statement was recorded by the police. It is admitted that the deceased Beena was her relative and her sister Tamanna' s Bua lives in Faridabad. She had once or twice gone to the house of Beena at Faridabad. She had known Beena when Tamanna had started living at New Mahavir Nagar. She does not remember if she had stated in her statement that on 20.12.2007, she with her sister had gone to the house of Beena at about 01:30 PM and rang the bell of the house but there was no response and when they came down in the street, one Babhi told that Beena's Jeth Naresh and Jethani Rajni had also come. It is further admitted that her sister Tamanna had received a telephone call from mother of Beena that her son­in­law was telling that Beena was missing and requested them to look for Beena. It is also admitted that she had reached at the house of Beena at about 03:00 PM where she found Beena' s Jeth Naresh and Jethani Rajni, Nanad Kulwant, husband and other persons collected S.C. No.12/3/08 Page 17 of 67 there. It is further admitted that all the persons were discussing that it may be electric current which would have been caused or there would be any other mishappening and so key maker was called and the door was opened. She did not go inside the house. Only Tamanna and others had gone inside the house. She does not know in what condition Beena was lying. It is denied that she told the police that she had gone inside and had seen Beena lying on the floor and bleeding from her nose and was in the naked condition and so her Nanad got Beena wore the clothes and Naresh had picked up Beena and took in a car to hospital. She did not tell the police that she and her sister had gone to the hospital. She had seen accused Naresh on the day when the dead body was removed who is the Jeth of Beena.

PW­8 Meenakshi is the sister of the deceased Beena who testified in her deposition that her sister Beena was married to Santosh on 10.12.2006 and she was living after marriage at her matrimonial house WZ­154, Gali No.8, Tilak Nagar. On 20.12.2007, her sister Beena was murdered in the above house. She alongwith her mother Babita was staying at her relative Tamanna' s house and had gone to attend a Rasham at the house of her sister in the evening on Sunday when accused Naresh was present there. PW­8 Meenakshi used to stay with her sister at least once in a month for a period of 4/5 days and accused Naresh never used to visit house of her sister. On Sunday her sister told that Naresh was coming for last 3/4 days at her house. Beena also told her that Naresh was enquiring from her what time she used to take bath where her jewelery articles were lying in the house and Beena should not take seriously the talks of her Nanads. On S.C. No.12/3/08 Page 18 of 67 Monday, PW­8 Meenakshi had gone to attend the Rasham at her sister' s house but Naresh did not come in the house, her sister told that Naresh and her wife had some hot talks so they had not come. She returned back to her relative Tamanna's house. On Wednesday while they were returning to Faridabad, she alongwith her mother Babita had gone to the house her sister. Her sister Beena again told her that Naresh had come to her house and was again repeating that she should not keep her jewelery in her house, it can be stolen. On Thursday at about 01:30 PM, Tamanna telephoned her mother that Beena was not opening door of her house. After 15­20 minutes, PW­8 Meenakshi received call from her Jeeja Santosh that if Beena had gone somewhere informing her as the door of the house was not opening and he also stated that he was going to the house from Karol Bagh. At about 04:00 PM, she alongwith her mother, brother Sushant had come to Tilak Nagar at the house of her sister. There they came to know that Beena was already removed to Amar Leela Hospital and they also reached in the hospital and found that Beena was died. Her dead body was brought to DDU hospital. PW­8 Meenakshi had come to know that a robbery had taken place in the house of Beena. After about 5/6 months, from the TV News of NDTV, she had come to know that Naresh was arrested by the police. After 2/3 days they went to police station Tilak Nagar, there they found accused Naresh in the lockup where she requested police to speak to the accused and she spoke to him in presence of her other relatives and accused had confessed that he had killed Beena as he was under lot of debt and was to pay money to the creditors. He also robbed the jewelery articles of the deceased S.C. No.12/3/08 Page 19 of 67 Beena and sold the same to some jewelers.

PW­10 Meetu Talwar stated in her deposition that Beena wife of Santosh was living in her neighbourhood just opposite to her house. On the day Beena died, she had gone to her Bank and when returned to her house, she noticed 10:30AM in wall clock. She noticed Beena was putting a towel in the veranda of her house. PW­10 Meetu Talwar was declared hostile and was cross examined by Ld. APP for state. In the cross examination she stated that she does not know if she had seen Santosh Kumar leaving for his place of work alongwith his brother. She has not seen the accused Naresh on that day nor she said so to the police when enquiry was made from her. She does not know what was written in her statement by the police officials. She has confronted from her statement Ex.PW10/A. PW­11 Tamanna stated that Beena was the daughter of her Bua Saans i.e. her husband' s real Bua. She was staying in Gali No.8 with her husband Santosh. Babita and her another daughter Meenaxi had come to her house about one week ago again said about 15 days ago from the day Beena died. But Babita did not tell anything about the affairs of Beena in her house with her husband nor told anything if Beena was being harassed or having strained relations with any of her in­laws or with brothers of Santosh. She does not remember the exact date when Beena died but on that day she alongwith her sister Devender Kaur had gone to the house of Beena at about 01:00 PM and door of her house was locked from inside. She called Santosh on his mobile phone and also called Babita on telephone that Beena was not opening the door. Everybody tried to open the door, rang the bell but S.C. No.12/3/08 Page 20 of 67 the door was not opened. She had left from there in order to take her son returning from school. She again came to the house of Beena and met Babita and Santosh with other persons Kulwant Kaur and Jethani of Babita. A key maker was called to open the door and the door was opened. They all entered inside the house and found that Beena was lying on the floor and was having blood on her face. She was in semi­ nude condition. She did not meet the police but later on police made enquiries from her and later on her statement was recorded. She did not suspect any person nor gave any other information to the police. She was declared hostile by Ld. APP for state and was also cross examined. In the cross examination, she stated that she did not tell the police that 10/15 days earlier from the death of Beena when Babita and her daughter Meenaxi came to her house then Babita told her that Beena informed her that Naresh Kumar brother of Santosh, in absence of Santosh used to come in the room of Beena and used to sit on bed. She did not tell the police that she was told by Babita that Beena was telling her that for the last four days Naresh was continuously coming and saying where was the jewelry lying and jewelry should be kept carefully. She has confronted from her statement recorded under section 161 Cr.P.C.

PW­13 Anand Chillar was also declared hostile and was cross examined by Ld. APP for state. In the cross examination by Ld. APP also PW­13 Anand Chillar also denied all the suggestions put to him by Ld. APP for state and confronted from his statement recorded under section 161 Cr.P.C.

PW­14 Pramod Kumar, SDM, Patel Nagar who recorded S.C. No.12/3/08 Page 21 of 67 the statement of Babita mother of the deceased and took the assistance from son and daughter of Babita and SI Raj Kumar to enquire into the matter. On 21.12.2007, he reached to DDU Hospital and prepared the inquest proceedings and also filled up form no. 25­35.

3. Apart from them, the other witnesses are the police officials who joined the investigation for one reason or the other and the witnesses of preparation of documents during the course of investigation. PW­15 SI Lalit Kumar was the in charge of the mobile crime team who inspected the site and found some clothes including chunni which was blood stained and a pair of chappal. He also found that blood had already been washed from the floor. Photographer took photograph of the place of occurrence and fingerprint expert also examined the spot and gave his report to the investigating officer vide Ex.PW15/A. PW­16 ASI Rajbir Singh, was posted at Anti­homicide section, Crime Branch, Sector­18, Rohini. On 18.07.2008, he received the information regarding accused Naresh Kumar and he alongwith SI Mukesh Kumar and other police staff reached West Canal. They left the office by DD No.18 in Govt. Gypsy and reached at West Canal, they asked 3/4 passersby to join in the proceedings after telling them about the circumstances of the case. But none agreed to join. The secret informer was also with them. Thereafter, they reached at T­ point of Sec­15 &16, Rohini near Bansal Bhawan at about 04:45 AM and started waiting for accused Naresh. At about 05:30 AM, accused Naresh Kumar was apprehended at the instance of secret informer while he was turning towards sector­16 Rohini from sector ­15 Rohini.

He was interrogated and arrested vide memo Ex.PW16/A and his personal search was conducted vide memo Ex.PW16/B in Kalandara under section 41.1 (a) Cr.P.C. He made disclosure statement Ex.PW16/C. Accused made disclosure statement regarding his involvement in this case, the SHO of police station Tilak Nagar was informed about his arrest.

PW­17 SI Mahesh Kumar prepared the scaled site plan on the instance of investigating officer. PW­18 SI Mukesh Kumar is the witness of the arrest of the accused Naresh and deposed in the similar manner as deposed by PW­16 ASI Rajbir Singh and prepared a kalandara under section 41.1 (a) Cr.P.C.

PW­19 HC Om Prakash on receipt of DD No.24A at 05:45PM on 20.12.2007 and reached at Amar Leela Hospital. He also deposed in the similar manner as deposed by the other police officials.

PW­21 Vinod Yadav, Senior Civil Judge proved the TIP proceedings of the jewelery articles and certified for correctly recording the TIP vide Ex.PW5/D. PW­22 HC Jai Singh deposited the sealed pulandas in the FSL Rohini duly sealed with the seal of DFMT, DDU Hospital vide RC No. 3/21.

PW­23 Dr. Y.K. Soni proved the MLC Ex.PW23/A of the deceased Beena and he declared the deceased Beena brought dead at the hospital.

PW­24 Sanjay Tiwari proved that the accused Naresh Kumar was working with him as a driver. He has not purchased anything from the accused nor the accused Dharmender has sold anything to him.

PW Dr. Usha Singh, RMO, Amar Leela Hospital proved the MLC of the deceased Beena vide Ex.PW22/A. She stated that the deceased Beena was brought dead in the hospital.

PW­25 Sri Narain, senior scientific officer proved his report regarding the chemical examination of parcels vide his report Ex.25/A. PW­26 Amit Kumar proved the genuineness of the Samsung mobile phone bearing model no. SGH­E210, IMEI No.354316010370544 and serial no. R7SJP8338561 and found that the mobile phone was genuine and in working condition and was made by Samsung vide his report Ex.PW26/A. PW­28 Monu Singh prepared the duplicate key of the lock of the house of the deceased Beena on the day of incidence. Accused Naresh approached him for opening of the lock of the door.

PW­29 Ct. Rajesh Kumar took the 11 photographs of the spot from different angles on the instructions of the investigating officer. The positive of the same are Ex.PW29/A1 to A11 and negative are Ex.PW29/B (collectively).

PW­30 Dr. Komal Singh proved the post mortem report of the deceased Beena vide Ex.PW30/A and opined the cause of death as 'asp hyxia due to smothering (manual)'.

All injuries were ante mortem and were of same duration.

PW­31 Daman Kumar is the private photographer who took the photographs of the spot on the date of incidence. He took six photographs vide Ex.PW31/A. The photographs were taken by digital camera and hence there are no negatives.

PW­32 Vishal Gaurav proved the call details of mobile no.

9910201596 from 18.11.2007 till 12.01.2008 and from 01.10.2007 till 21.12.2007. The call details are Ex.PW32/A and Ex.PW32/B. PW­33 Ajeet Singh proved the call details of phone having IMEI No. 354316010370540 from 24.01.2008 to 21.06.2008. The call details are Ex.PW33/A. PW­34 Insp. Kamal Singh deposed regarding the investigation carried on by him and the documents prepared during the course of investigation and apprehension of the accused persons and got recovered the case property. PW­35 HC Ram Lal was posted as MHC(M) on 25.02.2009 at police station Tilak Nagar and certified that all the parcels deposited in the malkhana were intact and same have not been tampered by anyone.

4. After completion of the prosecution evidence, the statements of the accused persons recorded under section 313 Cr.P.C. and all the incriminating evidence led by the prosecution were put to the accused persons which they denied as false and incorrect with the submission that they are innocent and falsely implicated in the present case. The accused Naresh in his statement under section 313 Cr.P.C. admitted that the deceased Beena married to his brother Santosh and were living at Gali No.8, Tilak Nagar. At about 03:30 PM, heard her Bhabhi Rajni and Tamanna saying that Beena was not present at her house. Accused Naresh was present at her house alongwith Rajni and Tamanna reached the house of deceased Beena. The door of the house was found locked and public persons were gathered. The door was broken up. The police reached at the spot and Beena was taken to Amarleela Hospital where she was declared brought dead. It is also admitted that PW­28 Monu Singh prepared the duplicate key and accused Naresh S.C. No.12/3/08 Page 25 of 67 had taken him to Krishna Park but he could not prepare the key and the lock had to be broken. He identified the accused Naresh. The accused Naresh does not want to lead any defence evidence.

Accused Harish Chand in his statement under section 313 Cr.P.C. stated that he is innocent and nothing has been recovered from him. The alleged recovery was planted against him by the police in connivance with the complainant Smt. Babita as well as the husband of the deceased.

Accused Dharmender in his statement under section 313 Cr.P.C. gave the similar answers as stated by the accused Harish Chand. He also does not want to lead defence evidence. He further stated that nothing has been recovered from him and the alleged recovery is planted upon him by the police.

5. After conclusion of the evidence of both the parties, I have heard the submissions finally and gone through the material placed on record and the authorities cited.

Ld. APP for state submitted that the prosecution examined all the public witnesses as cited in the list of witnesses including PW­1 Santosh Kumar husband of the deceased Beena and real brother of the accused Naresh Kumar. PW­2 Ramesh also real brother and PW­3 Kulwant Kaur is the real sister of the accused Naresh. PW­1 Santosh Kumar in his deposition admitted that the death of the deceased Beena is homicide and gold ornaments, mobile phone have been robbed. On 20.12.2007 at about 02:30 PM when he reached his house at WZ­154, Gali No.8, Krishna Park, he found his Bhabhi Rajni, sister Kulwant Kaur and Tamanna at the gate of his house at second floor. On S.C. No.12/3/08 Page 26 of 67 opening the gate, he saw his wife was in semi naked condition and the house was ransacked. He found jewelery articles, three set of gold, two bangles, one bracelet, some gold rings, gold chain etc. and one mobile phone were missing. He had purchased the mobile phone of Samsung and does not have the receipts of the said mobile phone. PW­3 Kulwant Kaur and other prosecution witnesses also proved the presence of Naresh Kumar at the spot on the day of occurrence. The accused Naresh himself brought the key maker who could not open the door. Same was opened after break open the lock. The articles were lying scattered. There was blood lying on the spot. The accused Naresh is her real brother.

It is further submitted by Ld. APP for state that PW­5 Babita in her deposition which led the case of the prosecution proved beyond all reasonable doubts. She also identified the accused Naresh as she was having inimical terms with Naresh real brother of Santosh who used to visit the house of Santosh in his absence 3­4 times in a month. Some of the jewelery articles as identified in the TIP are also recovered from the accused Naresh and some of other associates namely Dharmender @ Bablu and Harish Chand. She also identified the mobile phone belonging to her daughter. The testimony of PW­5 Babita is corroborated by PW­6 Sushant Malhotra, PW­8 Meenakshi and PW­11 Tamanna.

It is further submitted by Ld. APP for state that under section 114 of the Indian Evidence Act 1872 in a case where the theft and murder are committed in the course of the same transaction, will, to a large extent, depend upon the time gap between the murder and S.C. No.12/3/08 Page 27 of 67 robbery and the recovery of the stolen articles. If the ornaments or other articles belonging to the deceased are found in possession of a person soon after the murder and robbery, a presumption of that person being involved in the incident of murder and robbery can be safely drawn.

Ld. APP for state also relied upon Erabhadrappa @ Kirshnappa Vs State of Karnataka, AIR 1983 SC 446 and Gulab Chand Vs State of Madhya Pradesh : AIR 1995 SC 1598. Therefore, circumstances proved against the accused persons to leave to a irresistible conclusion that the accused Naresh is the person who committed the murder of Beena and also robbed various valuable jewelery articles and mobile phone from her house. After committing the murder and robbery, he sold the articles to the co­accused. In these circumstances, the accused persons are liable to be convicted.

6. Per contra, Ld. Counsel for the accused persons submitted that the case of the prosecution found to be demolished from his own witnesses. PW­1 Santosh is the real brother of the accused who is declared hostile by Ld. APP for state and cross examined at length. During his cross examination by Ld. APP, he denied each and every suggestions made by Ld. APP for state and confronted from his statement under section 161 Cr.P.C. In the cross examination on behalf of accused Naresh, PW­1 Santosh stated that he has not been shown any jewelery articles of his wife after the incident. During the period from 20.12.2007 to 18.07.2008, he and his family members were called several times to the police station. Police officials used to insult him and his family members and also gave beatings by stating S.C. No.12/3/08 Page 28 of 67 that Beena had died on account of demand of dowry. It is admitted that his brother Naresh is having a good character and no case was ever made against him nor he is involved in any dispute. He also earns comfortable livelihood by running his own business of crockery and sale purchase of cars. It is further stated that the accused Naresh is falsely implicated in this case under pressure from his brother Santosh's in­laws. Police had asked for jewelery articles from them and they had given some jewelery articles to the police. The jewelery articles were got prepared and given to police as per their requirement. Police did not record his statement but only inquiries were made from him. PW­1 Santosh has not identified any jewelery articles produced before him in the court at the time of recoding of his statement.

It is further submitted by the defence counsel that PW­2 Ramesh Kumar is also the real brother of accused Naresh and PW­1 Santosh who also deposed in his examination in chief that he reached at the house of Santosh after receiving a call from Tamanna and Beena was not present at the house. He asked Santosh to go home on motorcycle when he inquired that the house was locked from the inside. He received a call from his brother Santosh who informed that a robbery has taken place and Beena was found in naked condition. In the cross examination it is admitted that the accused Naresh was having visiting terms at the house of the deceased Beena.

PW­3 Kulwant Kaur real sister of the accused Naresh deposed in her examination that she has seen seen the accused Naresh at the house of Beena and in the cross examination stated that his brother Naresh was falsely implicated in this case on account of the S.C. No.12/3/08 Page 29 of 67 family members of the deceased Beena.

Ld. Counsel for the accused Naresh further submitted that PW­5 Babita stated that the jewelery articles before conducting the TIP were shown to her. She also admitted that the accused Naresh advised to the deceased Beena that she should not listen to the talks of her Nanads as they want to make fight amongst themselves and instigated Santosh that they should get Santosh married again as she was not getting pregnant. PW­5 Babita has not proved any receipts of the jewelery articles which have been donated by her in the marriage of her daughter Beena nor produced the articles from whom she purchased the jewelery articles. Even though the prosecution has not examined the Kapoor Jewellers, Chandani Chowk from whom she purchased the jewellery articles. Santosh produced the accused Naresh before the police then the accused Naresh was arrested. PW­6 Sushant Malhotra brother of the deceased Beena is a hearsay witness. PW­8 Meenakshi stated against the accused Naresh that there was no demand of dowry nor any kind of money from the relative of the deceased Beena by the accused Naresh or his family members.

It is further submitted by the counsel for the accused Naresh that PW­11 Tamanna is also cousin sister of the deceased Beena. She is residing at WZ­32, Gali No.17, New Mahavir Nagar and stated that the deceased Beena did not state anything about their affairs nor she had told anything of stringent relations with any of her in­laws and the brother of Santosh. She made contradictory statements as such she is declared hostile and she also confronted from her statement recorded under section 161 Cr.P.C.

It is further submitted by the counsel for the accused Naresh that apart from these witnesses, the other prosecution witnesses also made contradictory statements and there are major contradictions and improvements in the statements of the prosecution witnesses as such the testimony of the prosecution witnesses is not reliable and there is no circumstance connected with the accused Naresh with the commission of the offence. There is no recovery of the weapon of offence or any other incriminating evidence led to complete the circumstances. All the public witnesses are hostile and the manner in which the investigation has been conducted is tainted there are several defects and flaws in the investigation. PW­20 ASI Gurcharan Singh admitted in his cross examination that from the mother of deceased Beena was asked about the jewelery articles and she identified the same. PW­27 Insp. Surender Dev in his cross examination admitted that in the disclosure statement given to SI Mukesh it is not mentioned about any gold jewelery which recovered at the instance of accused Naresh. He cannot say from where the key of the drawer was taken. He cannot tell the make of the key. He cannot tell what jewelery articles were lying in the Almirah nor he can tell any specific mark of identification on the jewelery articles.

It is further submitted that PW­34 Insp. Kamal Singh has not recorded the statement of Babita however her statement was recorded on 21.12.2007 and on the basis of the initial statement of Babita, no offence was made out. On 20.12.2007, SDM not recorded the statement of Babita. Babita had not suspected any particular person in her initial statement. No document was prepared with respect to the S.C. No.12/3/08 Page 31 of 67 handing over and taking over of the key. Apart from it, there are several querries, on which PW­34 Insp. Kamal Singh has not given any cogent reply which create several dint and flaws in the case of the prosecution. The prosecution failed to explain several aspects of recording of statement of witnesses, joining of the public witnesses, conducting of the TIP proceedings, preserving of case property and the place and time of arrest of the accused persons and seizure of the articles etc. and they have made the improvement, exaggerations and contradictions.

Counsel for the accused Naresh further submitted that from the material placed on record including deposition of the prosecution witnesses there is no iota of evidence to bring home the guilt of the accused Naresh. The deposition made by the prosecution witnesses does not inspire confidence and they are hostile on material points. All the prosecution witnesses have stated contradictory on the material aspects. There are several flaws and major defects in the investigation. In these circumstances, the accused Naresh is liable to be acquitted.

7. Counsel for the accused Dharmender and Harish Chand submitted that PW Babita in her cross examination admitted that in the judicial TIP the police shown all the jewelery articles in the police station. Even otherwise the alleged recovery has been planted upon the accused persons. Same has been shown from the deposition of PW­1 Santosh and his statement is corroborated by the deposition of PW­2 Ramesh Kumar and PW­3 Kulwant Kaur. The mobile phone as brought on record are of different EMI numbers. The deceased Beena was having the phone of different EMI number. Therefore, the case S.C. No.12/3/08 Page 32 of 67 property does not tally as per the compliant and the deposition of PW­ 5 Babita. The case property is planted upon the accused persons. In these circumstances, the accused Dharmender and Harish Chand are liable to be acquitted from the charges levelled against them by the prosecution.

8. Having heard the submission of Ld. APP for state and counsel for the accused persons and material placed on record. The prosecution in order to establish the case against the accused persons for the offence under section 302/392/201/411/34 IPC, has brought on record the testimony of 35 witnesses. The case of the prosecution is based upon circumstantial evidence.

The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred of presumed. It has been consistently laid down by the Apex 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.

The circumstances from which an 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 S.C. No.12/3/08 Page 33 of 67 sought to be inferred from those circumstances. In case titled as Bhagat Ram Vs State of Punjab, AIR 1954 SC 621: 1954 Cri LJ 1645 (SC), 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 When a case rests purely on circumstantial evidence, such evidence must satisfy three tests.

(i) Firstly, the circumstances from which an inference of guilt is sought to be proved, must be cogently and firmly established.

(ii) Secondly, the circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused.

(iii) Thirdly, the circumstances taken cumulatively, must 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. That is to say, the circumstances should be incapable of explanation on any reasonable hypothesis save that of the guilt of the accused.

9. It is now well settled that while circumstantial evidence alone and by itself is enough to form the basis of conviction, provided, however, there is no gap in the chain of events, the chain of events must thus be complete in such a way so as to point to the guilt of the accused person and to none else. It is not a mere matter of surmise or conjecture but the events ought to be so tell tale that one cannot but come to the conclusion that the accused is the guilty person. Standard of proof has thus to be at a much higher degree test an innocent S.C. No.12/3/08 Page 34 of 67 person gets the blame therefor. The approach of the court thus ought to be extremely cautious and upon proper circumspection as regards the appraisal of the available evidence on record.

10. It is well settled that before conviction can be based solely on circumstantial evidence, it must be proved that the circumstances were such as to be conclusive of the guilt of the accused that were incapable of explanation on any hypothesis consistent with the innocence of the accused. It has been consistently laid down by the Supreme 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. The circumstances from which an 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. It was laid down that where the case depends upon the conclusion drawn from circumstances, the commulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.

11. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some case to positively establish that the deceased was last seen with the accused S.C. No.12/3/08 Page 35 of 67 when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.

12. In case titled as State Vs Kashi Ram AIR 2007 SC 144; Raj Kumar Prasad Tomarkar 2007 (1) Crimes 132 (SC), it was observed that where the deceased, wife and daughter of accused were last seen alive in the company of the accused at her house and the house was found locked and the husband not traceable till he was arrested, the accused was obliged to furnish some explanation in defence since the facts as to where he was during the relevant period and when he parted company with the deceased, were matters within his special knowledge the burden of proving which cast upon him by law. It was held that the circumstance of 'las t seen' therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt.

13. The case of the prosecution rests upon the following circumstances :

On 20.12.2007, the PW­1 Santosh husband of the deceased Beena received an information at about 01:30PM from Tamanna relative of his wife that she has come to her house and Beena was not present. At about 02:30 PM, Santosh reached at his house and found his brother and sisters Kulwant Kaur was there at the gate of his house which closed from inside at second floor. The gate was opened by the relatives. He found his wife in semi naked condition and the house was ransacked. She was removed to Amar Leela Hospital and she was S.C. No.12/3/08 Page 36 of 67 bleeding from her mouth. He found the jewelery articles alongwith one mobile phone were missing. The IEMI number of the mobile phone is 354316/01/037054/4 and the mobile is Ex.P1. The IEMI number mentioned on the sticker is also the same. The jewelery articles were shown as identified in his deposition. The deposition of PW­1 has been corroborated by PW­2 Ramesh Kumar and PW­3 Kulwant Kaur. It is also revealed that the door of the house was locked from inside. The key maker was called by accused Naresh to open the door. The accused Naresh was very much present at the spot at the time of opening of the door.

Another circumstances are that PW­5 Babita in her deposition stated that she came to know from Santosh that her daughter Beena should remain aloof from Naresh as he was not a good person and the accused Naresh was in the habit of gambling. Accused Naresh told the deceased that she should not listen to the talks of her Nanads, they wanted to make them fight amongst themselves and was instigating Santosh that they would get Santosh married again as her daughter was not getting pregnant. The accused Naresh and Santosh were in amicable terms and the accused Naresh caused the death of the deceased Beena. The accused Naresh came in the absence of Santosh on 14.12.2007 and remained in her room for continuously for four days. PW­8 Meenakshi while corroborating the deposition of PW­5 Babita. These circumstances also create suspicion on the accused Naresh as malafide intention to commit crime. The accused Naresh was not doing any work and used to play gambling, as such used to go in the house of his younger brother Santosh, in his absence with the S.C. No.12/3/08 Page 37 of 67 malafide intention to commit crime.

Next circumstances, goes against the accused Naresh is that the presence of the accused at the relevant time with the ulterior motive, no one should have any suspicion upon him and he himself assisted to procure the key maker. The door of the room was locked from inside and when it was opened the deceased Beena was found in semi naked condition. It also shows that the accused Naresh tried to outrage the modesty of the deceased Beena and committed robbery when she prevented him as such in a scuffle, she sustained external injuries. The accused Naresh has malafide intention though he remained in his younger brother's house for 3/4 days in a month, sleeping in the bed room, in the absence of his brother Santosh. He also used the bedroom as a living room and also used to talk unnecessarily to the deceased Beena so as to enquire the whereabouts of the jewelery articles. It shows that the accused Naresh was having some ill will or motive to commit crime and committed the crime.

14. For determining whether circumstances established on the evidence raise but one inference consistent with the guilt of the accused Naresh regarding the totality of the circumstances. Individual circumstances considered in isolation and divorced from the contest of the overall picture emerging from a consideration of the diverse circumstances and their conjoint effect may appear the needle of guilt towards the accused Naresh after evidence, various circumstances, together that brought the accused Naresh within the four corner of guilt.

The prosecution case, which is purely based on S.C. No.12/3/08 Page 38 of 67 circumstantial evidence have been established beyond all reasonable doubts where by believing the evidence of the prosecution in regard to its theory of ' last seen together', identification of the body etc., the link in the chain of circumstances get completed, the chain of circumstances is complete so as to come to consistent with irresistible conclusion that no other hypothesis, except the guilt of the accused Naresh.

15. Further circumstances, arose about the recovery of the incriminating article like, mobile phone, jewelery articles etc. belonging to the deceased Beena which has been identified TIP of the case property before the Ld. Judge. The accused Naresh was absconding from the spot and did not join the proceedings during the course of investigation rather other family members remained present in the police station except the present accused Naresh and later on arrested on 18.07.2008, there is no explanation of the whereabouts of accused Naresh and why he was concealing himself if he is innocent. The accused Naresh in his disclosure statement narrated the manner in which he committed the crime. It is also admitted in the confessional statement about the robbed articles which were later on recovered on the instance of accused Naresh. The co­accused Dharmender and Harish Chand were also apprehended with mobile phone and some jewelery articles which were identified in the judicial TIP. During his deposition under section 313 Cr.P.C., the accused Naresh simply denied all the incriminating evidence led by the prosecution against him.

16. The accused Naresh Kumar made a disclosure statement on S.C. No.12/3/08 Page 39 of 67 the basis of the disclosure statement Ex.PW16/C dt. 18.07.2008 on the very day when he was arrested in a kalandara under section 41.1 (a) Cr.P.C. The accused Naresh apprehended at the instance of secret informer while he was returning towards sector­16 from sector 15, Rohini. He was interrogated and arrested vide Ex.PW16/A. The accused made a disclosure statement regarding commission of the offence. He made scuffle with the deceased Beena when she tried to insult the accused, on asking about the whereabouts of the jewelery. The accused Naresh put the pillow on her face and pressed with force and due to non­supply of the oxygen and choked the throat and mouth of Beena by the pillow, the deceased Beena died. The accused Naresh also put off her salwar upto the knees. The gold jewellery and the mobile phone was kept with the accused Bablu @ Dharmender. The parts of jewellery articles were melted by accused Harish Chand. The accused Dharmender was also apprehended on his instance and got arrested the co­accused Harish Chand. The co­accused Harish Chand and Dharmender also made disclosure statements, on the basis of which gold jewelery and mobile phone were got recovered. The mobile phone was recovered from Sanjay Tiwari to whom the accused Dharmender sold the same for a sum of Rs.3,500/­ against the receipt.

The counsel for the accused persons submitted that the disclosure statement is not admissible under section 27 of Evidence Act. The contentions was that the disclosure statement was recorded by the police after arrest and remand of the accused persons by the court to the police custody. It is admissible under section 27 of the Indian Evidence Act. Section 27 of the Evidence Act, which is in the S.C. No.12/3/08 Page 40 of 67 nature of a proviso to section 26 of the Act, to the extent it is relevant provides that when any fact is deposed to as discovered in consequence of information received from the accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he needs to be in custody of a police officer.

Therefore, from the perusal of the facts, it is revealed that the confession of the accused Naresh recorded on 18.07.2008 when he was apprehended and soon after the apprehension, the disclosure statement was recorded by the police and on the basis of the disclosure statement, the recovery was effected, are admissible in evidence. In State of U.P. Vs Deoman Upadhyaya, 1960 Cri. L.J. 1504, Supreme Court inter alia, observed as under :­ "Whe n a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him, he may appropriately be deemed to have surrendered himself to the police. Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient. A person directly giving to a police officer by word of mouth information which may be used as evidence against him, may be deemed to have submitted himself to the S.C. No.12/3/08 Page 41 of 67 " custody" of the police officer within the meaning of section 27 of the Indian Evidence Act "

17. In case titled as Lay Maung Vs Emperor AIR 1924 Rang 173, the court inter alia observed as under :­ "As soon as an accused or suspected person comes into the hands of a police officer he is, in the absence of any clear and unmistakable evidence to the contrary, no longer at liberty and is therefore, in "c ustody" within the meaning of section 26 and 27 of Evidence Act."

In Haroon Vs Emperor AIR 1932 Singh 1490 and Pharo Shahil Vs Emperor AIR 1932 Sind 201, it was pointed out that even indirect control over the movements of suspects by the police would amount to "p olice custody" within the meaning of that section. In Gurdail Singh Vs Emperor AIR 1932 Lah 609, also the same principle was emphasised and it was observed that there may be police custody without a formal arrest.

18. Since the accused Naresh was under the control of the police when he made the disclosure statement, he was having the details and the investigating officer was given instructions to interrogate him formally. It is difficult to accept that he was not in the custody of a police officer at that time. It is difficult to say that the accused is under the physical control of the police officer and is being interrogated by them is not in the custody of the police officer at the time of his interrogation. In any case, if a person voluntarily going to a police makes a confessional statement and given information envisaged by section 27 of Evidence Act he comes in the custody of S.C. No.12/3/08 Page 42 of 67 the police office as soon as the incriminating statement is made by him. Therefore, the confessional statement Ex.PW16/A is admissible under section 27 of the Indian Evidence Act.

The accused persons alleged that the alleged jewelery articles as recovered from them and the mobile phone was planted by the police as the same has been purchased by the family members of the accused Naresh. The alleged jewelery articles are neither similar or identical to the jewelery articles as given to the deceased. PW­1 Santosh is the husband of the deceased is the best person who identified the jewelery articles, but the same was not shown to him. Even though the contentions made by the counsel is unsustainable in facts and in law since PW­5 Babita mother of the deceased who solemnized the marriage of the deceased Beena, correctly identified the jewelery articles and mobile phone in the court as well as in the judicial TIP. It is not fatal for the case of the prosecution since the jewelery articles as recovered were gifted in the marriage ceremony and shown to the mother. The accused persons have also not shown any receipts if they have purchased or the alleged gold articles have been planted upon them.

19. It was held by the Hon'bl e Supreme Court in case titled as Erabhadrappa @ Krishnappa Vs State of Karnataka, AIR 1983 SC 446, that where a lady witness identifies the stolen articles such as ornaments and sarees at the trial without prior Test Identification Parade, the testimony of such a witness was not inadmissible in evidence for want of prior Test Identification Parade, as ladies have uncanny sense of identifying their own belongings, particularly the S.C. No.12/3/08 Page 43 of 67 articles of personal use. A particular article may be identified by any particular mark on it or by its frequent use or observation which causes a permanent impression on the mind of identifier that leads to recognition of the article.

In these circumstances, PW­5 Babita has proved the case of the prosecution that the articles which were recovered on the instance of the accused persons are belonging to the deceased and none else.

20. In Mukund @ Kundu Mishra & Anr. Vs State of M.P.:

(1997) 10 SCC 130, the murder and robbery were committed in the course of the same transaction. The murder was committed in the night intervening 17th/18th January, 1994. During next night, the appellants were arrested and some of the stolen articles were recovered from the possession of the appellants. There was no eye­witness of the murder and robbery. It was contended before the court that even if it was assumed that the articles stolen from the house of the deceased were recovered from the appellants, it could at best be said that they had committed the offence under section 411 of the IPC, but not the offence of murder and robbery for which they were convicted.

Rejecting the contention, the Supreme Court, inter alia, observed as under :­ "If in a given case - as the present one - the prosecution can successfully prove that the offence of robbery and murder were committed in one and the same transaction and soon thereafter the stolen properties were recovered, a court may legitimately draw a presumption not only of the fact that the person in whose possession the stolen articles were found committed the robbery but also that he S.C. No.12/3/08 Page 44 of 67 committed the murder ."

21. In Ezhil & Others Vs State of Tamil Nadu : 2002 Cri. L.J. 2799, the robbery and murder took place in the night intervening 10/11th March, 1994. The articles of the deceased were recovered from the possession of the appellants on 11th March, 1994. There was a direct evidence of the appellants being involved in the murder and robbery. Noticing that the possession by the appellants was very much proximate in point of time to death of the deceased to constitute whole thing an integral affair, the Supreme Court, inter alia, held that the accused have not been able to properly or reasonably explain as to the legitimacy or origin of their possession of the articles carried by the deceased when he arrived from abroad at the airport at Chennai. In such circumstances, since the facts relating to the same being especially within the exclusive knowledge of the accused, the legislature engrafted a special, rule in Section 106 of the Evidence Act, to meet certain exceptional cases in which not only it would be impossible but disproportionately difficult for the prosecution to establish such facts which are specially and exceptionally within the exclusive knowledge of the accused and which he could prove without difficulty or inconvenience. The appellants in this case have miserably failed to explain their lawful possession of those articles with them that really belonged to and were in the possession of the deceased. On the basis of the facts and circumstances of this case, to draw the presumption not only of the fact that they were in possession of the stolen articles after committing robbery but also committed the murder of the deceased, keeping in view the proximity of time within S.C. No.12/3/08 Page 45 of 67 which the act of murder was supposed to have been committed and body found and the articles recovered from the possession of the accused.

22. Section 114 of Evidence Act, to the extent it is relevant, reads as under :

Court may presume existence of certain facts. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. For illustration, the court may presume that a man who is in possession of stolen goods after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for its possession.

The presumption permitted to be drawn under section 114 of the Evidence Act in a case where the theft and murder are committed in the course of the same transaction, will to a large extent, depend upon the time gap between the murder and robbery and the recovery of the stolen articles. If the ornaments or other articles belonging to the deceased are found in possession of a person soon after the murder and robbery, a presumption of that person being involved in the incident of murder and robbery can be safely drawn. If, however, a substantial time has expired in the interval, depending upon other facts and circumstances of the case and the nature of the stolen article(s), the presumption to be drawn by the court may be that the person found in possession of the stolen articles was only a receiver of those articles. The nature of the presumption to be drawn by the court S.C. No.12/3/08 Page 46 of 67 would also be influenced by the nature of the articles stolen from the possession of the deceased, as to whether it was an article which could be easily disposed of or it was an article which would be difficult to dispose of soon after the murder was committed.

23. In Gulab Chand Vs State of Madhya Pradesh : AIR 1995 SC 1598, the murder and robbery took place in the night intervening 23/34th April, 1979. The stolen articles were recovered from his possession on 27th April, 1979. It was held that such close proximity of the recovery was an important time factor which should not be lost sight of in deciding the case. Noticing that the accused before the court was not affluent enough to possess ornament recovered from him and considering the recovery of the stolen articles from his possession and his having sold some of them immediately after the murder and robbery and no plausible explanation for lawful possession of the articles having been given, the court was of the view that murder and robbery were integral part of the same transaction and therefore, the presumption was that not only the appellant committed the murder of the deceased but also committed robbery of her ornaments.

24. In the present case, the murder of deceased Beena took place between 10:00 AM to 12:00 Noon on 20.12.2007 at WZ­154, 2nd Floor, Gali No.8, Krishna Park, Tilak Nagar by strangulating. The door of the said premises was closed from inside. When the hue and cry was made, the accused Naresh was very much present there. However, as per the arrest memo and the other documents, he is resident of G­3/125, Sector­16, Rohini. The presence of the accused S.C. No.12/3/08 Page 47 of 67 Naresh on the day of occurrence has been admitted and verified by all the public witnesses including PW­1 Santosh, PW­2 Ramesh Kumar, PW­3 Kulwant Kaur and PW­7 Devender Kaur. They all have alleged that the accused Naresh, Rajni, Kulwant, Devender Kaur and other persons were collected there. The accused Naresh himself called the key maker. The accused Naresh picked up the deceased Beena and took into car to hospital. The accused Naresh used to visit the house of the deceased Beena in the absence of her husband Santosh. On the day of incident also the accused Naresh visited the house of the deceased in the absence of Santosh and his presence was not ruled out by any stretch of imagination either in the deposition of prosecution witnesses or in the statement of the accused recorded under section 313 Cr.P.C. The family members of the accused Naresh was being harassed and interrogated repeatedly and police kept them in the police station. However, the accused Naresh never come forward to rescue his family members or to get himself interrogated by the police to show his innocence.

25. It is also revealed in the report of the crime team that there was blood stains on the chunni, ladies chappal and the saliva also found on the pillow. There were two glasses which have dry substance of tea. Nobody has come in the bedroom and the two empty glasses of tea were lying. The accused Naresh in disclosure statement admitted that he took the tea in the house of the deceased Beena. The post mortem report Ex.PW30/A revealed that the cause of death as " asphyxia due to smothering (manual)", there was bleeding from the nose and both the conjuctivae shows haemorrhagic flacks, tongue was S.C. No.12/3/08 Page 48 of 67 clinched between the teeth. She was having multiple abrasion over the face, chest and the lower limbs. Both the lips, nose and Tongue was having bruised at its anterior one third.

26. It is trite law that minor variations between medical evidence and oral evidence do not take away the primacy of the later. Unless medical evidence in its terms goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner as stated. There is no rebuttal whatsoever to rule out the cause of the death due to smothering and the injuries received by the deceased in a scuffle. The circumstantial evidence, disclosure statement of accused Naresh corroborate the medical evidence and recovery of articles on the instance of the accused persons lead to the needle of guilt.

In the cross examination of PW­30 Dr. Komal Singh categorically stated that there is no need that in case of manual smothering there should be abrasion on the neck. There was no injury mark over the external area of the neck. The abrasion over the cheeks, lips and nose indicated that these are caused by manual smothering. The accused Naresh after interrogation smote the deceased with great force on her body with such force the inducting to stop the oxygen in the body of deceased till the deceased was died.

27. It is also contended by Ld. Counsel for the accused persons that the fingerprints on the glasses and the place of occurrence as well as from the body of the deceased were not lifted by the investigating officer nor any chance prints of the accused Naresh were taken by the investigating officer. In this regard, the accused Naresh in his disclosure statement Ex.PW16/C and Ex.PW9/B categorical stated that S.C. No.12/3/08 Page 49 of 67 he has put the water where there was the chances of lifting of fingerprints, therefore question of tally of fingerprints of the accused and lifting of chance prints does not arise.

PW­9 HC Sanjiv Kumar testified in his deposition that the accused Naresh Kumar in his disclosure statement admitted that he has taken away the jewelery articles and mobile phone and throw a key in the garbage. PW­15 SI Lalit Kumar categorically stated that the blood had already been washed from the floor. He gave his detailed report vide Ex.PW15/A to the investigating officer. The investigating officer has also seized the glasses. It would not have been ruled out the involvement of the accused in the crime. Therefore, nothing really turned inability of the investigating officer to lifting of the fingerprints since the accused has already explained that he has removed the fingerprints from all the articles.

Accused persons in their statement under section 313 Cr.P.C. stated that they are innocent and nothing has been recovered from them. The alleged recovery was planted upon the accused persons by the police in connivance with the complainant Babita as well as the husband of the deceased. This fact has been revealed by the prosecution witnesses that the accused Naresh has inimical terms with the deceased Beena. He used to suspect upon her and also instigated the deceased against her Nanads and other family members. He also used to visit frequently to the house of the deceased Beena. This fact has known to Santosh that his brother i.e. the accused Naresh so use the bedroom of the deceased Beena, it also create a doubt upon the conduct and motive of the accused Naresh. The motive of the S.C. No.12/3/08 Page 50 of 67 accused Naresh is to get rid from the deceased by eliminating her and to solemnize second marriage of his brother Santosh.

28. Even though, many murders have been committed without any known or prominent motive and it is quite possible that the aforesaid impelling factor would remain undiscoverable. The absence of any evidence on the point of motive cannot have any such impact so as to discard the other reliable evidence available on record which unerringly establishes the guilt of the accused.

Wills states : " There is hardly any voluntary act without motive. If any act is found to be totally devoid of motive, not unnaturally is one prone to attribute it to unsound mind. Man being a creature of passions and affections and gifted with reasons and choice, there is scarcely a human act not motivated by something or other, however, elusive and undetectable the underlying motive may sometimes happen to be.

The commonest inducements to act are the desire or revenging some real or fancied wrong, of getting rid of a rival or an obnoxious connection, of escaping from the pressure of pecuniary or other obligations or burden, of obtaining plunder or other coveted object, of preserving reputation, either that of general character or the conventional reputation of profession or sex, or of gratifying some other selfish or malignant passion."

29. In case titled as Ram Prakash Singh AIR 1998 SC 1190:

(1998) 9 SCC 497 and Rang Lal 2004 Cri LJ 316 (Raj), it was observed that in a case of sudden quarrel between two friends who were working together in a bank, when there was a hot exchange of S.C. No.12/3/08 Page 51 of 67 words, only one knife blow was given by the appellant without aiming it at any particular part of the body, the court held that his conviction under section 302 was not proper and that the appellant should have been convicted only under section 304­II IPC. Where the act is deliberate to get rid of a wife, or where the husband leaves his wife for several months and subjects her to temptation and kills her lover, the extreme penalty must be inflicted.

30. It is observed in 1994 Cri LJ 1079 (1089) (DB): 1993 Kash LJ 106 (J&K) that direct Evidence not necessary, can be inferred from circumstances. Even if motive is not established, if the circumstantial evidence with regard to the offence is proved, accused cannot escape liability on the ground that there is no motive. Absence of evidence of motive cannot always destroy a prosecution case resting entirely on circumstantial evidence. The conduct of accused immediately after occurrence is relevant fact under section 9 of the Evidence Act. The motive of human action is inscrutable and is primarily known to the accused himself.

It is observed in case titled as AIR 1999 SC 2629: 1999 Cri LJ 2902, that exchange of words between appellant and deceased on account of demands made by appellant for returning money advanced to deceased. Appellant throwing burning kerosene wick stove on deceased. Appellant aware of fact that his act is likely to cause burns resulting in death. Deceased died as a result of burns received by him. Appellant can be said to have committed offence under section 304, Part­II. Conviction altered from under section 302 to 304, Part II.

A murder is merely a particular form of culpable homicide.

Every murder is culpable homicide. Every murder is culpable homicide but not vice versa.

In case titled as AIR 1956 SC 654 (655) : 1956 Cri LJ 1265, observed that where the intention of the accused was not to kill the deceased outright but to inflict injuries on his legs and arms so as to disable him, but the accused had the knowledge that the injuries would be likely to cause death of the deceased, the accused was convicted under section 304, Part I and not under section 302 IPC.

In case titled as 1992 Mad LJ (Cri) 754 (761) (DB), it is held that in the case of murder, ill will and premeditation should both be both present. The absence of one of them coupled with an important excusing circumstance would transform the offence into culpable homicide. Thus, where the mother in state of unhappiness left home with children and threw them into well and later tried to commit suicide by jumping into the well and she survived but the children died, the act of accused would amount to culpable homicide not amounting to murder since there was not ill­will coupled with an important excusing circumstance viz. the extreme course of family suicide.

It is observed in case titled as AIR 1999 SC 1428 : 1999 Cri LJ 2101, accused inflicted single lathi injury on deceased. Occurrence happening on spur of moment without any premeditation. Intention to cause death or fatal injury cannot be inputed against him. Offence is punishable under section 304, Part II and not under section 302 IPC.

The accused Naresh was addicted to liquor. His demand for money for buying liquor. Refused by wife. Refusal provoked him and he attacked wife and also his daughter who came to rescue her mother S.C. No.12/3/08 Page 53 of 67 with sickle. Attack by accused was not deliberate or after pre­meditation but refusal by wife made him emotional to react violently. Blunt side of weapon and not sharp edge used by him. Intention to kill wife and daughter thereby cannot be attributed to him. Offence committed would be culpable homicide not amounting to murder attracting provisions of section 304, Part II. This view was observed in case titled as 1998 Cri LJ 1470 (DB).

The question of intention or knowledge on part of the offender is not required to be proved by direct evidence. When the court is called upon to determine the nature of offence committed by the accused it becomes obligatory for the court to consider the evidence and to determine whether there was sufficient proof for inference of guilty intention or knowledge. There cannot be scientific gadget or parameter or any other parameter to gauge and judge the guilty mind of the accused.

31. In the present case, there was no weapon of offence used by the accused. Accused Naresh was in regularly visiting terms at the house of the deceased and has also enjoyed the bed by lying in the bedroom of the deceased. As per the disclosure, an altercation took place and accused Naresh being a male dominated physically upon the deceased Beena and also cause injury to her in the scuffle. In that scuffle he (Accused Naresh) suddenly put the pillow on the mouth of the deceased and choked her mouth, neck and nose till the deceased succumbed to death. The manner of the incident does not show any intention or requisite knowledge that caused murder. Therefore, it is revealed that the accused Naresh has not committed the offence under S.C. No.12/3/08 Page 54 of 67 section 302 but under section 304 Part­II IPC.

The most important consideration upon a trial for the offence is the intention or knowledge with which the act which caused death, was done. The intention to cause death or the knowledge that death will probably be caused, is essential and is that to which the law principally looks. And it is of the utmost importance that those who may be entrusted with judicial powers should clearly understand that no conviction ought to take place, unless such intention or knowledge can from the evidence be concluded to have really existed.

32. In case titled as Babu Sadashiv Jadhav 1986 Cri LJ 739 (Bom.), it was observed that where the accused suspected the character of his wife and there was hot exchange of words between the two before the appellant poured kerosene oil and set her on fire but soon after realized his fully and tried to extinguish the fire and sustained burn injuries, it was held that he was not so intoxicated to be beside his mind altogether and was liable to be convicted under section 304 instead of under section302 IPC.

33. In case titled as State of U.P. Vs M.K. Anthony AIR 1985 SC 48: 1985 Cr LJ 493, it was observed that minor discrepancies not going to the root of the matter would not permit rejection of evidence. Every honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals.

Normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of S.C. No.12/3/08 Page 55 of 67 occurrence and those are always there, however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected categorized. While normal discrepancies do not corrode the credibility of the party's case material discrepancies do so. Same inconsistencies of a minor nature in evidence can be regarded as natural, giving more details while deposing before Sessions court are not improvements of such a nature as would create any doubt regarding the reliability as a witness as observed in a case titled as R. Basu V. State of W.B. AIR 2000 SC 908 (913).

There is no principle of law that without corroboration by independent witness the testimony of police officials cannot be relied upon. The resumption that person acts honestly applies as much in favour of police personnel as to other person. It is thus not a proper judicial approach to distrust and suspect them without good grounds. Evidence of police officers cannot be discarded only because they are police officers. Statement made by the police officers as witnesses should be given same wight as statement made by other witnesses.

The court must not give undue importance to minor contradictions or discrepancies in the evidence of witnesses and reject their testimony. Even honest and truthful witness may also not remember minute details unrelated with the main incident. Criminal trial is not a fairy tale wherein one is free to give flight to one' s imagination and fantasy. It concerns itself with the question whether the accused arraigned is guilty of the crime with which he is charged. In arriving about the guilt of the accused, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and S.C. No.12/3/08 Page 56 of 67 animus of witnesses.

It was observed in case tilted as 1989 Cri LJ 1501 (1506) (DB): 1989 1 Ker LJ 305 that in a criminal trial any irregularity or illegality during the course of investigation in collecting materials or otherwise will not affect the trial on the basis of materials placed before court unless unjustice or prejudice thereby caused and the materials are unacceptable in evidence.

34. As regarding to the co­accused Dharmender and Harish Chand, the prosecution witnesses have categorically deposed against the recovery of the jewelery articles and mobile phone. The recovered jewelery articles and mobile phone duly identified in the judicial TIP and the PW­21 Sh. Vinod Yadav certified the manner in which he conducted the TIP and there is no doubt that the TIP have conducted in true and fair manner and robbed articles have been duly identified which have been recovered on the instance of the accused Naresh from the accused Dharmender and Harish Chand as such the prosecution able to prove its case against the accused Dharmender and Harish Chand under section 411 IPC.

35. The circumstances proved against the accused persons to lead irresistible conclusion that the accused Naresh has committed the murder of the deceased Beena and also stolen various valuable articles from her house which include jewelery articles and mobile phone. The circumstances proved against the accused persons which totally incompatible with their innocence and it would be safe to come to the conclusion in whole probabilities that the accused Naresh was involved in the murder of the deceased Beena and also got recovered S.C. No.12/3/08 Page 57 of 67 some of the stolen articles from his possession and some from the other accused persons. However, the accused Naresh has no intention to commit a murder which was happened in a spur of moment, under passion and suddenly. As such the accused Naresh is convicted under section 304 Part­II and 411 IPC.

The other accused persons namely Dharmender and Harish Chand are convicted individually for the offence under section 411IPC.

Dictated & Announced               (SATINDER KUMAR GAUTAM)
in the open court today              ADDITIONAL SESSIONS JUDGE
i.e. on 13.09.2010                            (WEST­04):DELHI




S.C. No.12/3/08                                                    Page 58 of 67
      IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
      ADDITIONAL SESSIONS JUDGE (WEST­04), DELHI

SC No. : 12/3/08

State
             Versus

1. Naresh Kumar
   S/o Manik Chand
   R/o G­3/125, Sector­16
   Rohini, New Delhi. 

2. Dharmender Kumar @ Babloo
   S/o Nafe Singh
   R/o J­309, 40 Feet Road
   Prem Nagar Kirari, Nangloi, Delhi.

3. Harish Chand
   S/o Dev Narayan
   R/o A­37, Vishnu Garden
   Near Ration Office, Tilak Nagar, Delhi. 

Case arising out of : 
            FIR No. : 807/07
            U/s :  302/201/397/411/34 IPC
            P.S. : Tilak Nagar

Order on Sentence 

20.09.2010

Present:     Sh. Subhash Chauhan,  Ld. APP for state.
             Convicted Naresh from J/C. 
             Other Convicted on bail with their counsel. 



S.C. No.12/3/08                                             Page 59 of 67

Having heard the submissions of both the parties and carefully gone through the material on record.

The accused Naresh is convicted for the offence under section 304, Part­II and 411 IPC and accused Dharmender and Harish Chand are convicted for the offence punishable under section 411 IPC individually vide separate detailed judgment dated 13.09.2010.

Ld. APP for the State argued that the prosecution proved its case whereas the accused Naresh has been convicted for the offence punishable under section 304, Part­II and 411 IPC. The accused accused persons are convicted under section 411 IPC individually. It is further contended that the convicted Naresh has not taken any specific defence rather denied the presence at the spot on the relevant time and date. But his presence has been procured at the place of occurrence by the occular and trustworthy testimony of the prosecution witnesses. The convicted Naresh has knowledge for committing the offence that the alleged smothering of deceased with the help of pillow is likely to cause death. The act of the assailant possess the knowledge that the death is consequence of the criminal act i.e. smothering. From the evidence it is clear that although the accused might have not intended to cause death to the deceased since the accused was not having any arms or deadly weapon. He must necessarily be attributed that the knowledge and that the fact must likely to cause such bodily injury as was likely to cause death. As per section 304 IPC which defines that :

"Wh oever commits culpable homicide not amounting to murder shall be punished with (imprisonment for life) or imprisonment of either description for a term which may extend to ten S.C. No.12/3/08 Page 60 of 67 years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death."

In a case titled as State Vs. Dhool Singh 2004 Cri LJ 931 (SC), the Supreme Court has held that " that the courts should bear in mind that there is a requirement in law that every conviction should be followed by an appropriate sentence within the period stipulated in law. Discretion in this regard is not absolute or whimsical. It is controlled by law and to some extent by judicial discretion, applicable to the facts of the case. Therefore, there is need for the courts to apply its mind while imposing sentence."

It is no part of the definition of culpable homicide that the act which causes death should be a malicious act. Whatever may be the motive which incites the action, and whether or not any motive whatsoever be discoverable. The accused has intention to cause bodily injury likely to end in death or he understands that it was probable result of his act. It is further submitted by Ld. APP that requisite intention or knowledge was proved against the accused Naresh after seeing that these are external and visible acts of the mind. Hence all the convicted are liable for maximum punishment as prescribed under the law.

Ld. Counsel for the convicts humbly submitted that the S.C. No.12/3/08 Page 61 of 67 convicted Naresh remained in judicial custody since the day when he was sent to first time in judicial custody and more than three years have already been spent by them in judicial custody. The convicted are the only bread earner of their family and having minor kids. They have not being previously convicted and having clean antecedents and there is no delay on the part of the convicted. The convicted are young persons and have long life to spent, if remain in judicial custody further, it will punish to their family members and dependents. Therefore, prayed to release them for the period of imprisonment already undergone by them or probation.

In view of aforesaid submission made punishment can be said to be the sanction imposed on the offender for the infringement of law. When a person is tried for an offence and is found guilty, it is the duty of the court to impose appropriate sentence on him. The award of sentence is consequential on and incidental to conviction. The law does not envisage a person being convicted for an offence without a sentence being imposed therefor.

The aims of punishment are now considered to be retribution, justice deterrence, reformation and protection and modern sentencing policy reflects a combination of several or all of these aims. The retributive element is intended to show public revulsion to the offence and to punish the offender for his wrong conduct. The concept of justice as an aim of punishment means both that the punishment should fit the offence and also that like offences should receive similar punishments. An increasingly important aspect of punishment is deterrence and sentences are aimed at deterring not only the actual S.C. No.12/3/08 Page 62 of 67 offender from further offences but also potential offenders from breaking the law. The importance of reformation of the offender is shown by the growing emphasis laid upon it by much modern legislation, but judicial opinion towards this particular aim is varied and rehabilitation will not usually be accorded precedence over deterrence. The main aim of punishment in judicial though, however, is still the protection of society and the other objects frequently receive only secondary consideration when sentences are being decided. A Court in passing sentence, should inflict such sentence as the gravity or otherwise of the crime of which the accused has been convicted warrants and merits, irrespective of whether the sentence inflicted will involve a right of appeal or not, even though the accused may pray for an appealable sentence.

The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle consideration of culpability that are raised by the special facts of each case. Judge in essence affirm that punishment ought always to fit the crime; yet in practice sentence are determined largely by other considerations sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic result of his crime. The question of sentence is a matter of discretion for trial court and no limits can be fixed by judicial precedents.

In Halsbury's Laws of England (4th edn.) Vol. 11 p. 287, S.C. No.12/3/08 Page 63 of 67 para 481; it has observed:

A very wide discretion in fixing the degree of punishment is allowed to the trial judge except for the offence of murder, for which the court must pass a sentence of imprisonment for life, and for a limited number of offences in respect of which the penalty is fixed by law including those offences for which the sentence of death must be pronounced.

As regards most offences, the policy of the law is to fix a maximum penalty, which is intended only for the worst cases, and to leave to the discretion of the judge the determination of the extent to which in a particular case the punishment awarded should approach to or recede from the maximum limit The exercise of this discretion is matter of prudence and not of law, but an appeal lies by the leave of the court of appeal against any sentence not fixed by law, and if leave is given, the sentence can be altered by the court. Minimum penalties have in some instances been prescribed by the enactment creating the offence. In carrying out the task of reviewing sentences, however, the Court of Appeal will generally not interfere, unless the sentence is one not warranted in law or unless there has been some error in principle. It has been very aptly indicated in Dennis Councle MCG Dautha of California that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. Therefore, the discretionary judgment in the facts S.C. No.12/3/08 Page 64 of 67 of each case is the only way in which such judgment may be equitably distinguished. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the court.

In case titled as Dhananjoy Chatterjee Vs State of West Bengal (1994)2 SCC 220, the Supreme Court held that " imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime."

The court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. The act committed by the accused persons with the knowledge that it is likely to cause the death. However, it is not being able to prove and come to conclusion that the act was done with the intention to cause death or intention to cause such bodily injury as was likely to cause death. The intention of the accused persons to teach the lesson to the deceased if factual matrix of the whole case is taken into consideration it must be also beyond any doubt that accused persons were responsible for inflicting those injuries and they must be attributed only with the sufficient knowledge. The court is must aware sight of the fact that death S.C. No.12/3/08 Page 65 of 67 of the old un­defendant person due to the act of the accused persons which is worst kind of crime in a civilized society governed by the law. The right to live with dignity of life and liberty of the individual is envisaged in the Preamble to the Constitution. The common man may not lose faith in the law enforcement machinery and the foundations of the criminal justice delivery system require stern action to be taken. The court require to adopt punitive stand.

However, as far as the question of sentence is concerned, this court finds that at the time of incident, the appellant was in advanced stage of her pregnancy and had given birth to a girl child which had expired soon after the birth. The evidence adduced by the prosecution indicates that the husband of the appellant was coming near the bathroom with a cane so as to prevent the deceased from coming out of the bathroom. Such an act is not attributed tot he appellant at all. As on today,the appellant is of more than 67 years of age. The record further indicates that the appellant has also a major daughter, who was aged 10 years at the time of the incident and a son. On the facts and in the circumstances of the case, this court is of the opinion that interest of justice would be served if conviction of the appellant under section 304, Part­II, read with section 34 of the Indian Penal Code is maintained and the sentence is reduced to the period already undergone.

In view of the submission made by counsel for the convicted the decision of law now about the accused persons are young man and having family they will not be controlled at this stage. There is further likelihood for becoming the hardcore criminals and may likelihood to law breakers. Accordingly accused Naresh S/o Manik S.C. No.12/3/08 Page 66 of 67 Chand is hereby sentenced to rigorous imprisonment for a period of one year and fine of Rs. One lakh in default of simple imprisonment for a period of one year under section 304 (II). The accused Naresh is further sentenced to already undergone imprisonment and fine of Rs.10,000/­ in default of simple imprisonment for a period of three months for the offence under section 411 IPC.

The convicted Dharmender Kumar @ Babloo S/o Nafe Singh and Harish Chand S/o Dev Narayan are hereby sentenced to rigorous imprisonment to the period already undergone and fine of Rs.10,000/­ in default of simple imprisonment for a period of three months under section 411 IPC individually. Benefit of section 428 Cr.P.C be also awarded to both convicted. The period already undergone be set off from the period of sentence awarded to both convicted.

The mood and temper of the public with regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country.

A copy of this order as well as of the judgment be given free of cost to both the convicted. File be consigned to Record Room.

Dictated & Announced               (SATINDER KUMAR GAUTAM)
in the open court today              ADDITIONAL SESSIONS JUDGE
i.e. on 20.09.2010                             (WEST­04): DELHI




S.C. No.12/3/08                                                           Page 67 of 67