Delhi District Court
State vs . Satender on 24 March, 2012
State vs. Satender
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS PATIALA HOUSE COURTS : NEW DELHI
SC No. 133/08
ID No. 02403R0306992008
FIR No. 115/08
PS Malviya Nagar
State Vs. Satender Singh
S/o Ram Lakhan Singh
R/o Vill. Sanghi Pur PS Mohan
Ganj Distt. Rai Bareilly UP
Date of Institution : 13.06.2008
Judgment reserved on : 24.02.2012
Date of pronouncement : 24.03.2012
JUDGMENT
1. The accused in the present case has faced trial on the allegations that on the intervening night of 78 February, 2008 at flat no. 37 C, 2 nd floor, MIG flats, Phase I, Sheikh Sarai he committed the murder of one Pranab Sakia and thereafter during investigation got recovered the belongings of the deceased which he had stolen after committing the said murder.
2. Briefly stated the chronology of events leading to the arrest of the accused as described in the charge sheet are as follows:
SC NO. 133/08 1 of 50 State vs. Satender a) On 8/2/2008 at about 8:58 am, a PCR call was received at PS
Malviya Nagar that the flat no. 37 C, 2nd floor, MIG flats, Phase I, Sheikh Sarai has been ransacked. Pursuant to the said information ASI Braham Singh and Ct. Surender were deputed for investigation. The said police officials on reaching the said flat found its main gate open and on entering the said gate a dead body of male was found lying in a room adjacent to the kitchen in half naked condition. The underwear, Tshirt and jersy were found lying towards the T.V. Trolley and a jean pant, shirt, belt was found lying on the sofa. Some left over food in two plates, one open bottle of Signature brand liquor, few breads, one menu card of 'Hunger point hotel Triveni' were found lying on the dining table. Empty pouches of Shikhar Gutka were found lying in the staircase and near the door One SIM card chip and one Adidas shirt was also found lying on the mattress and one pair of sport shoe were found lying adjacent to the door of the room. There was one full sleeves banyan also found on the dead body and the some blood was oozing from the nose and the tongue was between the teeth. In the meanwhile one Smt. Rasween Das wife of Sh. Anshuman Das, resident of the said flat, reached the spot and informed ASI Braham Prakash that the deceased was the uncle of her husband and had come to Delhi from Assam in connection with his business. She further stated that her husband was SC NO. 133/08 2 of 50 State vs. Satender undergoing treatment at Max hospital and that she was attending him and that therefore the deceased was staying alone in the house. According to her, on 7/2/2008, the deceased had taken her husband's Maruti Zen car no. DL9CF6900 silver Grey colour from Max Hospital at about 8:15 pm and that now the said car was not available at the parking lot near the flat.
b) FIR was got registered on the basis of this statement given and investigation of the case was taken over by SHO/ACP Harpal Singh, who had also reached at the spot in the meanwhile. He then prepared the site plan. Scene of crime was got examined by dog squad, finger print bureau and crime team, who lifted chance prints from the suspected articles. The dead body was sent to the mortuary AIIMS. The liquor bottle, glasses, blood sample, SIM card, clothes etc. were taken into possession through seizure memos.
c) After the said proceedings at the scene of crime, during further investigation the statement of one Jyoti, taxi driver was recorded as per which on 7/2/2008 he had taken the deceased to several places and that in the evening had also taken him to Connaught Place, where at Palika Bazar, he had parked his taxi and the deceased had gone towards Palika Bazaar. According to this statement recorded, at about 6:30 pm the deceased along with a young boy aged 25 years had come back and had SC NO. 133/08 3 of 50 State vs. Satender asked the said taxi driver to take them to INA market. After going to the INA market the deceased then asked the said taxi driver to take him to Max hospital and thereafter paid him Rs.550/ and he returned back to his taxi stand.
d) The investigating team then went to Triveni, the Hunger Point Restaurant at Sheikh Sarai phase I where they met its manager Rajiv Sharma who then gave a statement that the deceased along with a young boy had come to the said restaurant on 7/2/2008 and had ordered for a meal to be delivered at his flat and that he had sent his delivery boy Anand Bera to deliver the food at C37 second floor MIG flat Sheikh Sarai. The said delivery boy Anand Bera was also then interrogated and he stated that he had delivered food to the deceased at his flat and he had seen the young boy, who had accompanied the deceased to the restaurant, present at the flat.
e) Statement of witness Anshuman Das, the nephew of the deceased was also recorded in which he stated that on checking of the house, mobile phone of his uncle, his brown coat, laptop bag of Dell, visiting card holder, keys, pouch with foreign currency, black suitcase of Mount blanc, two pair of shoes along with his Zen car have been found to be stolen. During further investigation, the call details of mobile phone of deceased bearing no. 9435052396 were collected form the concerned SC NO. 133/08 4 of 50 State vs. Satender authority and it was found that several calls were made between this number and 9958243128 on 7/2/2008 and the location of both the numbers were found to be at Sheikh Sarai in the evening of 07.02.2008. The subscriber's name of mobile 9958243128 was found to be Dharmender R/o T22, Gali no. 23, Baljeet Singh Nagar, New Delhi. On verifying the call details of 9958243128 it was found to be last used on 08.02.2008 in the area of Shahajanpur, UP and frequent conversations were found to have take place between this number and one number namely 9889558728. It was also found that SIM of this number i.e. 9889558728 was used in the mobile phone of the deceased (IMEI No. 357088005895260 in the morning of 9/2/2008. The details of this mobile number were then traced out from the concerned authority and it was found subscribed in the name of one Ram Lakhan, resident of village Sanghipur, Tilnoi District Rai Bareilly, UP. In the evening of 9/2/2008 the investigating team left for Rai Bareilly and on 10/2/2008 met the said Ram Lakhan and his family members. Ram Lakhan informed the police team that he has three sons namely Jitender, Dharmender and Satender (the accused) and that his son Satender was residing in Delhi and had come to village Sanghi Pur on 9/2/2008. Ram Lakhan also informed the police team that the address of Satender is T 510/F24 Baljeet Nagar, Gali no. 4 Delhi. It was also informed that phone bearing no. 9958243128 was SC NO. 133/08 5 of 50 State vs. Satender in the name of Dharmender but it was being used by Satender.
f) The police team then went to the residence of Satender, the accused. He was interrogated. He confessed regarding his involvement in the murder of Pranab Sakia and gave a disclosure statement as per which he had met the deceased on 2/2/2008 at Connaught Place and the deceased had desired to have sexual relations with him and had taken him to his flat at Sheikh Sarai and that thereafter the deceased had called him several times on his mobile number and that on 7/2/2008, the deceased had called him and had asked him to meet at Paliaka Bazar at 6:30 p.m. According to the said alleged disclosure, on the date of incident he had come to the house of the deceased, had given him an overdose of sleeping pills along with Whiskey, with an intention that after his death, he would decamp with the belongings of the deceased, which he had seen on 2/2/2008. The accused is also alleged to have disclosed that after Pranab Sakia fell unconscious and the accused was sure that he had died, he removed his gold ring, mobile phone (after removing the SIM card), suitcase, coat, shoes, keys, pouch containing foreign currency and took away the Maruti car from the parking lot. As per the alleged disclosure the accused left the car at CNG pump Moti Bagh as it had some problem, and then left the suit case, etc at his house and went to Lucknow and then to his native village. Pursuant to his SC NO. 133/08 6 of 50 State vs. Satender disclosure two bags were recovered from his house which were found to be that of the deceased. The accused was also found wearing a jacket of make Vittorio Tratini and Shoes of make Levi's Strauss and black colour socks which he also disclosed belonging to the deceased. He also then got recovered the Maruti Zen belonging to the complainant from one CNG pump near Moti Bagh. The accused was arrested. He refused to participate in the TIP. The police remand of the accused was taken during which he was identified by Rajiv Sharma, Anand Bera and Jyoti and he was then taken to his native village where he got recovered the mobile phone of the deceased, one wrist watch and one pair of shoes. TIP proceedings of the articles recovered from the accused and at his instance were got conducted and said articles were correctly identified by Anshuman Das. Chance prints found at the spot along with those of the accused, were sent to Finger Print Bureau. As per the report received from the said Bureau four chance prints lifted from the spot were found identical with the finger prints of accused and accused.
3. Based on the aforementioned allegations and the material on record, the Ld. Predecessor of this court had framed charges against the accused for the offence punishable u/s 302 IPC. However, during the course of final arguments, this court after hearing the submissions made by Ld. APP for the state and after taking note that in the chargesheet itself it was mentioned SC NO. 133/08 7 of 50 State vs. Satender that section 411 IPC was added in the FIR after the recovery of the stolen articles at the instance of the accused, had framed an additional charge against the accused for the offence punishable u/s 411 IPC.
4. In order to prove the aforementioned allegations the prosecution has examined 32 witnesses (inadvertently two witnesses Sh. Sheoraj and ACP Harpal Singh have both been numbered as PW27). The evidence of the said witnesses is briefly discussed herein below.
(i) PW1 HC Suresh Kumar was the duty officer on 8/2/2008 at PS Malviya Nagar. He has deposed that on 8/2/2008 at about 8:58 am he had received information about the flat no. 37 C MIG Flat Sheikh Sarai and that the said information was reduced into daily diary vide DD no. 8A and the copy of the said DD has been proved as Ex.PW1/B. He has also proved on record copy of the FIR as Ex.PW1/A.
(ii) PW2 Smt. Rasween Dass has interalia deposed that in February 2008 her husband was admitted in Max Hospital, Saket and that maternal uncle of her husband (deceased Pranab Saikia) was staying in their house at the aforementioned flat. According to her deposition she was informed by her maid that the maternal uncle of his husband is lying on the floor and the house hold articles are lying scattered. As per her deposition, she then informed her neighbour Gauri Shankar to reach the flat and by the time she reached her flat the police officials and the ambulance had also reached.
SC NO. 133/08 8 of 50 State vs. Satender
She has further deposed that she had informed the police that the car bearing registration no. DL9CL6900 Maruti Zen, one black suit case, few personal articles shoes etc. were missing from the house.
(iii) PW3 Anshuman Dass has deposed that on 8/2/2008 he was admitted in the Max hospital, Saket and that on the same day in the morning his wife received a call from their maid servant. As per his deposition he was discharged from the hospital at about 4:35 p.m. on the same day and thereafter on 9/2/2008 he was called to AIIMS hospital to identify the dead body of his deceased uncle. He has further deposed that he had given his statement to the IO regarding the identification of the dead body and the same has been Exhibited as Ex.PW3/A. He has also deposed that during investigation he had moved an application to the concerned SHO regarding the missing articles from his house and the said application has been proved as Ex.PW3/C. According to this witness thereafter on 13/3/2008 he had identified his missing articles in TIP proceedings namely, wrist watch, gold rings, shoes, mobile phone Nokia belonging to his deceased uncle and coat, trolley bag, laptop bag and shoes belonging to himself. This witness has also produced during trial the Maruti Zen car bearing no. DL9CF6900 which had been released to him on superdari. The articles identified by him and produced by him during trial are wrist watch Ex.P2, mobile phone Nokia Ex.P3, two pairs of shoes Ex.P4, keys of SC NO. 133/08 9 of 50 State vs. Satender the car Ex.P5, gold ring Ex.P6, Coat Ex.P7, Laptop Ex.P8 and a trolley bag Ex.P9.
(iv) PW4 Sh. Gauri Shankar the neighbour of the complainant has deposed that on 8/2/2008 at about 8:30 am he had received a phone call from the wife of PW3 Anshuman Dass requesting him to check their flat. He has deposed that accordingly he went to the said flat and found that the flat was ransacked and that a dead body was lying on the floor. According to him he then immediately called the police at no. 100 and the police officials after reaching the spot checked the dead body and then called the local police. Dog squad team and photographers are then stated to have reached the spot. He has deposed in detail about the investigation conducted at the spot by the police officials. He has explained the manner in which the articles found at the spot, seized by the police vide various seizure memos. According to him all the seizure memos bears his signatures.
(v) PW5 Sh. Rajiv Sharma is Manager of the restaurant, Triveni the Hunger point. As per his deposition on 7/2/2008 the accused along with one another person aged about 48 years had come to his Restaurant to take dinner and had ordered some food to be delivered at house no. 37 C MIG Flats, Sheikh Sarai Phase I. He has further deposed after the food was packed it was sent to the aforesaid address through delivery man namely SC NO. 133/08 10 of 50 State vs. Satender Anand Bera. He has further stated that menu card of his restaurant was also placed by him along with the packed meal. He has deposed that on 8/2/2008 he was called by the police official at the aforesaid house and he had identified the deceased to be the same who had come along with accused to his restaurant on 7/2/2008. This witness has further stated that on 19/2/2008 he had gone to Tihar Jail for identification of the accused but that on this date the accused refused to join the TIP.
(vi) PW6 Sh. Jyoti has deposed that he is a driver by profession, and that on the date of incident he was working at Surjit Taxi Service, Savitri Nagar, Delhi and that on 7/2/2008 owner of the taxi stand had received a phone call to send the taxi at Savitri Nagar and thereafter he had taken his taxi bearing no. DL3CBB0214 to flat no. 37C MIG Flats, Delhi. As per his deposition one person met him there and told him to take him to Max Hospital, Saket, PVR Saket, Sarojini Nagar and thereafter to South Extension. According to him after going to all these places he took the said person back to flat no. 37 C MIG flats,Savitri Nagar Delhi at about 2:30 p.m. As per this witness at about 3:00 p.m. he again went to Qutab Hotel, Ansal Plaza and Cannaught Place with the aforesaid person and at about 6:30 pm. he parked his taxi in front of gate no. 1 Palika Bazar and the said person went inside the Palika Bazar and at about 7:00 p.m. he came out of the Palika Bazar along with the accused present in the court. This witness SC NO. 133/08 11 of 50 State vs. Satender has further stated that both the said persons then sat in his taxi and took him to INA market and thereafter to the Max hospital at abut 8:00 p.m. According to this witness he left both of them at the Max Hospital and the person who had hired the taxi paid him Rs.550/ He has further stated that on the next date he went to the said flat again as it had been told by the person who had hired his taxi at the prior date that he was to be dropped at the station. He has further deposed that on reaching the said house he was informed that the person has been murdered and he identified the dead body before the police to be the same person who had hired his taxi. The witness was also shown photographs mark X of the deceased person and he identified the same as the person who had hired his taxi.
(vii) PW7 Anand Bera has deposed that on 7/2/2008 he was working as deliveryman, in 'Triveni The Hunger Point' restaurant and at about 8:30 p.m. one person aged about 48 years alongwith accused had come to the said restaurant for taking dinner and had ordered that their dinner be delivered to 37 C, MIG Flats Sheikh Sarai. According to him the said person aged 48 years had made the payment to PW5 Rajiv Sharma, the Manager of Restaurant and that at about 8:458:55 p.m. he had taken the packed dinner to the aforesaid flat. This witness has further stated that on reaching the said flat and on ringing the bell the man aged about 48 years came to the door to take delivery of the dinner and that he had also seen the SC NO. 133/08 12 of 50 State vs. Satender accused sitting in the lobby of the said flat. According to him on the next day the police officials had taken into the aforesaid flat and he had shown the deceased and he had identified the dead body to be of the same person to whom he had delivered the food. He has further deposed that on 19/2/2008 he along with PW5 Rajiv Sharma had gone to Tihar Jail for identification of the accused but no proceedings were conducted on that date.
(viii) PW8 Sh. Anup Saikia has deposed that on 9/2/2008 he had gone to AIIMS mortuary and had identified the dead body of his brother and his statement in this regard is ExPW8/A.
(ix) PW11 SI Mahesh Kumar has deposed that on the request of the SHO P.S. Malviya Nagar he had prepared the scaled site plan of flat no. 37 C, 2nd Floor, Sheikh Sarai and the said site plan has been exhibited by this witness as Ex.PW11/A.
(x) PW12 Gudiya has deposed that her native residence is in Bihar and that she does the work of making food and that on 08.02.2008 she had gone to the flat no.37 C, 2nd Floor, Sheikh Sarai I to prepare food. According to her deposition on reaching there, she found the door of the said flat open and also saw that the person who had been living in the said flat for the last 10 to 11 days was lying on the floor of the room in half naked condition. She has further deposed that she became scared and came SC NO. 133/08 13 of 50 State vs. Satender out of the flat and called Ms. Rasween from a STD shop.
(xi) PW13 Prem Pal Singh has deposed that he is the registered owner of Maruti Zen no. DL 9CF 6900 and that that said car used to remain with his brother in law Sh. Anshuman Dass.
(xii) PW14 R.K. Singh, Nodal Officer, Bharti Airtel Ltd. has placed before the court the call details record of mobile no. 9958243128 for the period 15.01.2008 and 15.02.2008. The said record has been exhibited as Ex.PW14/B. The subscriber enrollment form of this number has also been produced by this witness exhibited as Ex.PW14/A. As per the said document the name of the subscriber of the mobile number is Dharmender Singh. The call details of the aforesaid mobile phone belonging to UP East circle has also been exhibited during the deposition of this witness as Ex.PW14/C.
(xiii) PW27 Sh. Sheo Raj, Senior Finger Print Expert has proved his reports Ex.PW27/A, Ex.PW27/B and Ex.PW27/C. This witness has deposed that he had compared the chance print picked up from the spot with the specimen finger palm impressions slips of the accused and that 4 of such chances prints were identical with the fingers impression of the accused.
(xiv) PW28 Sh. Chander Shekhar, Ld. ASJ has proved the proceedings of the stolen articles and the said proceedings have been SC NO. 133/08 14 of 50 State vs. Satender exhibited as Ex.PW28/A.
(xv) PW22 Puneet Tripathi, Senior Executive (legal), Idea Cellular Ltd. has produced before the court the records pertaining to phone no. 988958728. As per the record produced by this witness the said mobile number was alloted to Ram Lakhan Singh. The Customer Service Agreement has been exhibited as Ex.PW22/A, the identity proof of Ram Lakhan Singh has been exhibited as Ex.PW2/D and the call details of the aforesaid phone number from 15.01.2008 to 09.02.2008 have been exhibited as Ex.PW22/C. (xvi) PW29 Ms. Kavita Goyal, Senior Scientific Officer has proved Viscera Report of the deceased. The said report has been exhibited as Ex.PW29/A. (xvii) PW30 Dr. B.L. Choudhary, Assist. Professor, Department of Forensic Medicine has deposed that on 09.02.2008 he had conducted the postmortem of the deceased and the postmortem report has been exhibited as Ex.PW30/A. According to this witness the opinion with respect to the cause of the death was kept pending till the availability of the Viscera Analysis Report.
(xviii) PW31 Dr. Sudhir Gupta, Associate Professor, Forensic Medicine and Toxicology, AIIMS hospital has deposed that it was under
his supervision that Dr. Choudhary had conducted the postmortem of the SC NO. 133/08 15 of 50 State vs. Satender deceased. He has further deposed that after preparation of the viscera report he had given his opinion in this case with respect to the cause of death. The said report has been exhibited as Ex.PW31/B. According to this witness the cause of death in the present case was Ethyl Alcohol Poisoning. Remaining witnesses are police officials who have deposed about the investigation conducted in the present case.
(xix) PW18 ASI Braham Prakash and PW27 ACP Harpal Singh are the main investigating officers of this case. PW18 ASI Braham Prakash has deposed that on 8/2/2008 on the receipt of DD no. 8A he along with PW21 Ct. Surender, PW23 Ct. Anil Kumar reached at flat no.37C, Second Floor, MIG Flat Sheikh Sarai and on reaching the spot found the main gate of the flat opened. He has then described the scene of crime in detail and according to him after a while PW2 Smt. Rasween and thereafter the SHO, PW27 also reached the spot. According to him, since no eye witness of the murder could be found at the spot, he made an endorsement ExPW18/A on DD no. 8A and prepared the rukka and handed over the same to PW23 Ct. Anil Kumar for getting the FIR registered and after the registration of the FIR the investigation of this case was handed over to SHO Malviya Nagar, PW27 ACP Harpal Singh. Both these witnesses have deposed in detail about the search and seizure proceedings done by them at the spot. As per the deposition of PW27 ACP Harpal Singh after SC NO. 133/08 16 of 50 State vs. Satender investigating the scene of crime he had prepared the site plan ExPW27/A, had then seized and sealed the bottle of Signature liquor vide seizure memo ExPW4/G, collected the blood samples through a cotton and seized the same vide seizure memo ExPW4/A. According to the said witness, SIM card was taken into possession by him vide seizure memo ExPW4/B, the glasses found at the spot were taken into possession by him vide seizure memo ExPW4/C, underwear, shirt, jersy, inner, pant and Tshirt found at the spot were taken into possession vide ExPW4/D. The plastic box and the plastic water bottle lying on the slab of the kitchen were seized vide seizure memo ExPW4/H and J, the menu card of 'Triveni the Hunger Point' lying on the dining table as per the deposition of this witness, were taken into possession vide seizure memo Ex.PW4/E. The paper bag having words 'Levi's Strauss and Company' which was lying on the dining table and the sport shoes Numero Uno along with the socks which were lying on the gate of the lobby were seized vide seizure memo Ex.PW4/K and Ex.PW4/F respectively. All the four pouches of Shikhar Gutka were seized vide seizure memo ExPW4/L, as per the deposition of this witness. (xx) After completing the proceedings at the spot, as per the deposition of these two witnesses both of them along with PW23 Ct. Anil and PW21 Ct. Surender then went to the 'Triveni the hunger point' restaurant situated at Sheikh Sarai and interrogated the PW5 Rajiv Sharma SC NO. 133/08 17 of 50 State vs. Satender and PW7 Anand Bera of the said hotels and recorded their statements. They have also deposed that thereafter they went to Surjeet Taxi stand where they met one driver PW6 Jyoti and his statement was also recorded. On the date of incidence, as per PW27 he also get flashed the wireless message of the missing car of PW3 Anshuman Dass to all SSPs in India and to all DCPs in Delhi and also tried to search the accused person with the help of driver PW6 Jyoti but was not successful. Both PW27 and PW18 have further deposed that they had also gone to mortuary AIIMS and there inquest papers ExPW27/C were prepared and the dead body was got identified by PW8 Anup Saikia and PW3 Anshuman Dass and after postmortem dead body was handed over to the relative of the deceased.
Four sealed pullandas sealed with the seal of Department of Forensic medicine AIIMS having viscera, blood in gouge, baniyan and one tabiz in black dora were also taken into possession vide ExPW10/A. (xxi) According to the deposition of PW27, on 13/2/2008 PW26 SI Dalip informed him that the suspect Satender was residing in T 510/F24 Baljeet Nagar, Gali no. 4, New Delhi. According to the further deposition of this witness on 14/2/2008 he then along with PW9 Ct. Dharambir and PW18 ASI Braham Prakash went to the said aforementioned premises where they met landlord Vishnudev and were informed that suspect Satender was residing in the second floor. Accused Satender was SC NO. 133/08 18 of 50 State vs. Satender apprehended. He has stated to have confessed regarding his involvement in the murder. He was then arrested vide arrest memo ExPW9/A. According to the deposition of PW27 on the personal search of accused one purse, chocolate colour, some visiting cards, 50 dinar currency notes, one ring, one key of Zen, one mobile phone was recovered and the personal search memo of accused, ExPW9/B was prepared on the spot. According to this witness the accused admitted that the ring worn by him and the currency note of 50 dinar belonged to the deceased and the key was of the Maruti Zen which he had stolen. The disclosure statement of the accused has been exhibited as ExPW9/C and as per the testimony of PW18 and PW27, pursuant to this disclosure statement the accused took out two bags from the loft of his room and on one of the bag words 'DELL' were written and one the other, which was a trolley bag 'Mount Blanc' and that from the trolley bag, one coat dark brown colour was recovered. The said bags were taken into possession vide memo ExPW9/E. The accused is stated to have disclosed that the jacket and the shoes that he was wearing also belonged to the deceased. The said articles were also seized and taken into possession vide Ex.PW9/D. Thereafter as per the deposition of these witnesses the accused took them to Moti Bagh CNG Pump and there at his residence the Maruti Zen car belonging to the complainant was recovered and was seized vide seizure memo Ex.PW9/F. The pointing memo in this regard has been SC NO. 133/08 19 of 50 State vs. Satender exhibited as Ex.PW18/A. PW27 has further deposed that on 19/2/2008 when the accused refused to participate in the judicial TIP he was thereafter taken in police custody for 5 days and on 20/2/2008 the accused was identified by PW7 Anand Bera, PW5 Rajiv Sharma and PW6 Jyoti in the police station.
(xxii) PW18 ASI Braham Prakash has also deposed that on 21/2/2008 he took the accused to his village Sanghi, Rai Bareilly. According to the deposition of this witness he along with PW16 Ct. Maz Ahmad, Ct. Yash Kumar and Ct. Padam went to the PS Mohan Ganj and after recording their arrival entry they went to the village Sanghi pur along with accused and one Ct. and one home guard from PS Mohan Ganj. According to the deposition of this witness he requested the neighbour of the accused to join the raiding party but none agreed and thereafter the accused took the police party into his house and pointed to an iron box in the kaccha room situated in the left side of the house and took out a wrist watch Alwyin, on mobile phone Nokia and one pair of sport shoes from the said box. As per the disclosure made by the accused all these articles have been stolen by him after murdering Praveen Saikia. The said articles were taken into possession vide memo Ex.PW16/A.
5. The entire incriminating evidence produced on behalf of the prosecution was put to the accused and his statement was recorded u/s 313 Cr.P.C. In SC NO. 133/08 20 of 50 State vs. Satender the said statement the accused has denied his complicity in the present case and according to him he was neither present on the spot on the date of the incident nor was anything recovered from him. He has also stated that the case property was planted on him and after his arrest his signatures were obtained on blank papers by pressurizing him. No defence evidence had been led on behalf of the accused.
6. I have heard Ld. APP for state and Ld. Defence counsel Sh. S.C. Sharma.
7. Ld. APP has contended that the deposition of the driver of the taxi who dropped the accused and deceased at the house of the complainant, the deposition of the owner of the hotel Triveni and the delivery boy of the said hotel who delivered meals to the accused and deceased all prove that the deceased was last seen with the accused on the night of the incident. He has also contended that the chance prints picked up from the spot clearly prove the presence of the accused at the house of the deceased on the night of the incident. He has further pointed out that the recovery of the clothes and the shoes of the deceased from the house of the accused and from his person, the recognition of the said articles by the complainant during judicial TIP, the fact that the accused refused to join the TIP all lead to the irresistible conclusion that the accused is guilty in the present case. In support of his contentions she has relied upon the judgment of Hon'ble Supreme Court pronounced in the case titled as Sh. Bhagwan Vs. State of Rajasthan AIR SC NO. 133/08 21 of 50 State vs. Satender 2001 SC 2342.
8. On the other hand Ld. Defence counsel has submitted that none of the recovery proceedings can be relied upon by this court since no public witnesses were joined therein and that therefore it is a clear case where the articles belonging to the deceased have been planted upon the accused only to implicate him in this case. According to him postmortem report does not mention the time of the death of the deceased and this itself is sufficient to give the benefit of doubt to the accused. He has also pointed out that Dr. Sudhir Gupta has admitted in his cross examination that Diazepam is also a drug prescribed for therapeutic problems and therefore it is possible that the deceased on his own consumed the said tranquillizers alongwith alcohol. According to him the recovery of the car of the complainant at the instance of the accused is also doubtful keeping into account that the car was parked at a CNG pump station which is accessible to one and to all. He has further contended that no hue and cry i.e. no wireless messages were flashed by the police immediately after the date of the incident for the search of the said car and that therefore this court must make an inference that the recovery of the car at the instance of accused is a planted piece of evidence. He has also contended that the testimony of the taxi driver and that of the owner of the hotel Triveni and the delivery boy cannot be relied upon by this court since there are various inconsistencies in the same.
SC NO. 133/08 22 of 50 State vs. Satender
9. I have carefully considered the contentions made by both the Ld. Counsels and I have gone through the entire material on record.
10.Admittedly in the present case there is no eye witness to the incident of murder and the present case rests upon circumstantial evidence.
11.In a catena of judgments, the Hon'ble Supreme Court while dealing with a case that rests upon circumstantial evidence has held that such evidence must satisfy the following tests:
(i) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firm established;
(ii) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(iii) The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within realm of human probability the crime was committed by the accused and none else and;
(iv) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis then that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
SC NO. 133/08 23 of 50 State vs. Satender
12.Now in the present case the circumstances on the basis of which the prosecution is wanting this court to infer the guilt of the accused are the fact that he was last seen with the deceased and that the stolen articles of the deceased were got recovered at his instance. In order to prove that the accused was last seen with the deceased, the prosecution has produced 3 witnesses in the witness box. PW6 Jyoti, the taxi driver who dropped the accused and the deceased at Max hospital on 07.02.2008 at about 8 p.m. PW5 Rajiv Sharma, the Manager of the restaurant, "Triveni The Hunger Point", who has deposed that both the accused and the deceased had come to his restaurant for ordering a meal and PW7 Anand Bera, who had deposed that he had last seen the deceased and the accused together at about 08.45 to 08.55 p.m. when he had gone to deliver the packed food at flat no. 37 C, MIG Flats, Sheikh SaraiI. The prosecution is also relying upon the fact that the chance prints picked from the spot have tallied with the specimen fingers prints of the accused. The testimony of PW6, the taxi driver has been questioned by the Ld. Defence Counsel on the ground that though as per the deposition of this witness, both the accused and the deceased were together at about 07.00 PM on 07.02.2008 at Palika Bazar, the detailed records of the mobile phone used by the accused Ex.PW14/C show that he had received a call from the mobile phone of the deceased at 18.09 hrs. The contention of the Ld. Defence Counsel is that if both the SC NO. 133/08 24 of 50 State vs. Satender accused and deceased were together, there would not have been any question of both of them talking to each other telephonically. I am afraid that the said contention of Ld. Defence Counsel does not have much force for as per the deposition of PW6, he saw accused and the deceased together only at 07.00 PM. The said witness has also deposed that he had dropped the deceased at about 06.30 PM at Palika Bazar and that at 07.00PM, the deceased had come out of Palika Bazar accompanied with the accused. The said deposition therefore clearly suggests that the deceased had met the accused inside the Palika Bazar after 06.30 PM and in the said circumstances, the deceased making a telephone call to the accused at about 06.10 PM is completely understandable and consistent with the deposition of PW6.
13. As regards PW5 and PW7, it has been contended by Ld. Defence Counsel that no evidence has been produced by the prosecution in support of the depositions of the PW5 and PW7 that they were infact employees of the restaurant in question, on the date of the incident. He has pointed out that no record has been produced by PW5 in support of his deposition that he was paid Rs.400/ by the deceased for the purchase of the dinner. Ld. Defence counsel has further submitted that PW7 Anand Bera had admitted in his cross examination that the payment for the dinner was not made in his presence and that according to him the father of the owner of the SC NO. 133/08 25 of 50 State vs. Satender restaurant was present in the restaurant on 07.02.2008 in the evening. According to Ld. Defence counsel this admission in the crossexamination of this witness tantamounts to an admission that the alleged order made by the deceased was taken by the father of the owner of the restaurant and not PW5 Rajiv Sharma. I find no basis for this contention made by the Ld. Defence counsel to the witness PW7 as nowhere stated that on the date of the incident it was the father of the owner of the restaurant who had taken the order. He has merely deposed that the father of the owner of the restaurant was also present in the restaurant. It cannot be inferred from the said statement that as per this witness it was the father of the owner of the restaurant who had taken the order. Further the mere fact that the restaurant in question was not maintaining the records of its employees, cannot be a ground to disbelieve the testimony put forward by PW5 and PW7 which is otherwise found to be very trust worthy. None of these witnesses have any enmity with accused and therefore have no reason to falsely implicate the accused in the present case. It is also to be borne in mind that the accused had refused to participate in the TIP proceedings and in this regard, an adverse inference is to be drawn against him.
14.The fact that the chance prints from the spot have tallied with the specimen fingerprints of accused also go a long way to show the presence of accused at the spot. The fingerprint expert Sh. Sheoraj has been examined by the SC NO. 133/08 26 of 50 State vs. Satender prosecution as PW7 and he has given a detailed report Ex.PW27/A as per which the 4 chance prints picked up from the spot were found identical with the left thumb impression, left index finger impression, the right middle finger impression and right thumb impression of the accused. The testimony of the said expert witness has been completely accepted by the accused for not a single question was put to this witness despite he having been tendered for crossexamination. In my considered opinion, the scientific evidence relating to chance prints and the deposition of PW5, 6 and 7 conclusively prove the presence of the accused on 07.02.2008 at flat no. 37C, 2nd floor, MIG flats, Sheikh SaraiI, Delhi, where the dead body of the deceased was recovered. As regards the submission of the Ld. Defence Counsel that the time of death has not been mentioned in the postmortem report, it is relevant herein to record that the postmortem report, Ex.PW30/A records the time since the death as about one and a half days and the date and hour of starting the autopsy is shown as 12 Noon on 09.10.2008. In other words, as per the postmortem report, the death must have occurred at about 12 midnight. As narrated hereinabove, as per the deposition of PW7, he had seen the accused at the house of the deceased at about 08.5008.55 PM. Thus, the time between the deceased being seen alive and his death is mere 3 hours and is not such a huge time gap that it can be stated that the accused had nothing to do with the death of the SC NO. 133/08 27 of 50 State vs. Satender deceased.
15.Coming now to the recovery of the stolen articles of the deceased at the instance of the accused, the contention of Ld. Defence Counsel is that in the absence of the joining of any public witnesses in the said recovery proceedings, the same should not be at all considered by this court. In support of his contention, Ld. Defence Counsel has relied upon the judgment titled as Heera Lal Vs. State (2) C.C. Cases (HC) 272.
16.On the other hand, Ld. APP for the State has submitted that the mere fact that public witnesses were not joined in the recovery proceedings should not be a ground to disbelieve the testimony of police officials. In support of his contention, Ld. APP has relied upon a judgment of Hon'ble Supreme court pronounced in the case of Ramesh & Ors. Vs. State of Rajasthan 2011 (3) JCC 1599.
17.In my considered opinion also, the recovery of the stolen articles of the deceased at the instance of the accused cannot be doubted in the present case taking into consideration that present is a case where the accused could be apprehended only after the police were able to trace out the location of the mobile phone of the deceased, at the parental house of the accused at village Sanghipur. As narrated hereinabove, the investigating team could reach the accused only after it was discovered that the mobile phone of the deceased as per the call detail records was being used at SC NO. 133/08 28 of 50 State vs. Satender Shahjahanpur, UP. As narrated hereinabove on verifying the call details of 9958243128, it was found to be last used on 08.02.2008 in the area of Shahajanpur, UP and frequent conversations were also found to have taken place between this number and one number namely 9889558728. It was also found that the SIM of this number i.e. 9889558728 was used in the mobile phone of the deceased (IMEI no. 357088005895260) in the morning of 9/2/2008. The details of this mobile number i.e.9889558728 were then traced out from the concerned authority and it was found subscribed in the name of the father of the accused, Ram Lakhan resident of village Sanghipur, Tilnoi District Rai Bareilly, UP. In the evening of 9/2/2008 the investigating team left for Rai Bareilly and on 10/2/2008 met Ram Lakhan, who then informed the police team that the address of Satender is T 510/F24 Baljeet Nagar, Gali no. 4 Delhi. It was also informed that phone bearing no. 9958243128 was in the name of Dharmender but it was being used by Satender.
18.Ld. Defence counsel has contended that the entire aforementioned facts cannot be read in evidence for the prosecution has failed to examine Ram Lakhan, the father of the accused or his brother Dharmender. Ld. APP on the other hand has pointed out that both the said persons being the blood relatives of the accused, in all probability, in order to save the accused, would not have stated that true facts before this court and that therefore, the SC NO. 133/08 29 of 50 State vs. Satender prosecution did not chose to examine them. He has further pointed out that the documents produced on record by PW22 Punit Tripathi, Senior Executive, Idea Cellular Limited clearly show that the mobile no. 9889558728 stands in the name of Ram Lakhan and the documents produced on record by PW14 R.K. Singh, Nodal Officer, Bharti Airtel Ltd clearly show that the phone bearing no. 9958243128 stands in the name of Dharmender, the brother of the accused and the said documentary evidence has not been challenged by the accused at all.
19.In my considered opinion also, the aforementioned mobile phone call records produced before the court by PW14 and PW22 and not disputed by the accused clearly show that the mobile phone of the deceased was used by inserting therein the SIM card of the mobile of the father of the accused and even if the father of the accused has not been produced in the witness box, the said scientific evidence clearly shows that the stolen mobile phone of the deceased did find its way to the parental house of the accused. Now, it was for the accused to have explained the said circumstances and he was also at liberty to call his father and brother in the witness box to disprove the allegations of the prosecution and on his failure to do so, it is to inferred that prosecution has been able to moved beyond reasonable doubt the stolen mobile phone of the deceased was recovered from the parental house of the accused.
SC NO. 133/08 30 of 50 State vs. Satender
20.Coming now to the recovery of remaining articles, as per the deposition of PW3 Anshuman Dass, during the course of investigation he had moved an application before the concerned SHO regarding the missing articles from his house and the said application has been exhibited as Ex.PW3/C. PW27, the then SHO Harpal Singh has also similarly deposed that on 09.02.2008, Anshuman Dass had come to the police station and had handed over a list of the missing articles from his house. There is no crossexamination of this witness with respect to the said deposition. No suggestion has been put to PW3 Anshuman that he had not filed the said application before the SHO or that the said list has been prepared by him as an afterthought. Therefore before the date of arrest of the accused, the nephew of the deceased had filed a list of missing articles before the SHO and the accused has not rebutted this evidence produced by the prosecution. At that point of time i.e. on 09.02.2008, there was any occasion for Anshuman or the SHO to falsely implicate the accused by preparing a false list of stolen articles. The articles recovered were also clearly identified by Anshuman during TIP proceedings which were conducted by the Ld. Magistrate. The said Ld. Judicial officer has also appeared in the witness box as PW28 and has given his deposition in detail about the identification of the articles by Anshuman Dass. The said judicial proceedings have also not been questioned. As observed by the Hon'ble Supreme court in Ramesh's case (supra) where SC NO. 133/08 31 of 50 State vs. Satender the identification of the stolen articles on recovery, is conducted before a Magistrate, having no interest in favour of the prosecution, there is no reason to doubt the reliability of such an identification. Therefore the fact that the articles which have been allegedly shown to be recovered from accused were actually stolen as on the date of the incident and were later on correctly identified by the nephew of the deceased have been proved by the prosecution beyond all doubt.
21.With respect to the contention of Ld. Defence Counsel that the stolen articles were planted upon the accused, a very important fact to be taken note in the present case is that on the first day of the investigation, i.e. when articles were seized from the MIG Flat at Shiekh Sarai, all the witness have consistently deposed that one paper bag having words 'Levi's Strauss and Company' was lying on the dining table and the same was taken into possession of investigating agency. The seizure memo Ex.PW4/K proves the said seizure. Further, in the application, Ex.PW3/C (referred to hereinabove) the nephew of the deceased had mentioned that his uncle's two new shoes supposedly bought for his sons were missing. Both the recovery of the paper bag and the filing of this application has been done before the arrest of the accused. Thus before the date of arrest of accused on 13.02.2008, as per the testimony of witness and the documentary evidence, two pair of shoes were missing and one empty paper bag of SC NO. 133/08 32 of 50 State vs. Satender Levi's Strauss and Company had been found near the dead body. Now, on the date when the accused was arrested i.e. on 14.02.2008, he was found wearing shoes make 'Levi's Strauss and Company'. Now, if the contention of Ld. Defence Counsel is to be accepted, then on 08.02.2008 when the paper bag containing the words 'Levi's Strauss and Company' was seized near the dead body, at that point of time itself the police officials had pre planned that as and when a suspect is arrested, they will plant the shoes bought for the sons of the nephew of the deceased upon him. I am afraid, the said contention cannot be accepted in the facts of the present case. No doubt, the police officials could have joined public witnesses during the recovery proceedings but it is well known fact that public witnesses are hesitant to join the police proceedings specially in a case of murder. In this respect PW18 has specifically deposed that though he had requested the neighbours living adjacent to the parental house of the accused at village Sanghipur, to join the proceedings they refused to do so. Further though no doubt, it is true that in many cases absence of joining of public witnesses is taken to be a relevant consideration but in a case like the present one where the evidence of prosecution witnesses is found to be very credible and is also corroborated by the scientific evidence, it cannot be stated that non joining of public witnesses in recovery proceedings lead to the inference that the recovered articles have been planted upon the accused. With SC NO. 133/08 33 of 50 State vs. Satender respect to the contention of the Ld. Defence Counsel that no wireless messages were relayed by the police authorities to locate the missing car of the complainant, it is relevant to mention herein that PW27 ACP Harpal Singh has categorically deposed in his examination in chief that on the day of incident he had got flashed the wireless text message about the missing car to all SSPs in India and to all DCPs in Delhi and it has not been put to this witness at all that he has deposed falsely in this regard. Further no doubt there are minor details of the recovery proceedings about which the police officials have not been able to depose, but then one cannot expect that all the police officials must have a photogenic memory so as to narrate all the proceedings in exactly the same manner as they had happened. I am therefore of the considered opinion that the prosecution has been able to prove beyond reasonable doubt that it was at the instance of the accused that the stolen articles of the deceased and his nephew were recovered.
22.The most important link in the chain of circumstances which is to be examined now is the evidence produced by the prosecution to prove the cause of death of the victim. According to the version put forward by the prosecution, the accused is alleged to have given a disclosure statement that he had purchased sleeping pills from a chemist shop at Palika Bazar and had put the same in paneer tikka and had made the deceased consume the same alongwith liquor. Ld. APP has pointed out that the medical opinion SC NO. 133/08 34 of 50 State vs. Satender with respect to the cause of death has also proved that the death of the victim Pranab Sakia occurred due to the intake of tranquillizers along with alcohol. Thus as per the prosecution the cause of death in the present case is a particular case of poisoning namely the mixing of tranquillizes along with alcohol. Now it has been consistently held by the Hon'ble Supreme Court that in a case of poisoning the prosecution must establish that (a) the death took place by poisoning; (b) that the accused had the poison in his possession; and (c) that the accused had an opportunity to administer the poison to the deceased. It has also been held that these three propositions can be proved either by direct or circumstantial evidence. In the present case no doubt the prosecution has been able to prove that the accused had an opportunity to administer the tranquillizers along with alcohol to the deceased since he was last seen with the deceased but let us now examine whether the prosecution has been able to prove that the death in the present case took place due to the said consumption. The prosecution is heavily relying upon the postmortem report of the deceased and the opinion of Dr. Sudhir Gupta, PW31 to prove the cause of death of Pranab Sakia. The said doctor in his report Ex.PW31/A has opined "the cause of death in this case is ethyl alcohol poisoning, however, mixing of tranquillizer in ethyl alcohol cannot be ruled out." It is relevant to state herein that this witness has been examined at two stages. Initially he was examined by prosecution SC NO. 133/08 35 of 50 State vs. Satender as PW31 on 24.02.2011 and also crossexamined. This witness in his crossexamination conducted on this date, has stated that the dose of ethyl alcohol found in the viscera of deceased was found lower than the level of fatality and the death may have been caused due to synergistic effect of tranquillizer i.e. Dizepam, Lorazepam, Nirazepam etc which may have been consumed alongwith alcohol or immediately prior to consuming alcohol. Thereafter, after the entire evidence was concluded and the case was at the stage of final arguments, this court recalled the said doctor in order to seek clarifications from him with respect to his opinion. On 04.01.2012 when this doctor was recalled by this court to clarify his opinion and explain as to how he had given the said opinion when admittedly in the present case, viscera report did not indicate the presence of tranquillizer in blood/viscera, he has explained that the term 'Ethyl Alcohol poisoning' means that alcohol has been consumed in a high dosage which is fatal for the body. He has further deposed that since in the present case, the level of Alcohol mentioned in the viscera report was 157 mg % which is slightly lower than the fatality level of 200 mg %, he opined that the death in the present case may have occurred due to the consumption of tranquillizers alongwith Alcohol. According to the deposition of this doctor, at the time of inquest, IO of the present case had given the entire record of the investigation to him wherein it was mentioned SC NO. 133/08 36 of 50 State vs. Satender that tranquillizers had been given to the deceased and therefore, he drew a scientific presumption that the death might have occurred due to the consumption of tranquillizers. He has also clarified that the false negative viscera report is not uncommon in many cases as drugs may get metabolized in the body and therefore, its residue may not remain in the viscera. On a further query by this court, he has deposed that the presence of metabolized form of drugs could not be confirmed in the present case since by the time the viscera report was obtained, the body of the victim had been already cremated and that even otherwise, there is no advanced technology available to determine the presence of metabolized form of drugs from the stool analysis of a dead body. The said query was put by this court since as per the 'Modi's Medical Jurisprudence and Toxicology' page 385, it has been documented that in a case of poisoning, the urine and faeces, when available should be preserved and in the present case, admittedly as per the postmortem report Ex.PW30/A, on the body of the deceased, faecal matter was present. The said doctor then himself also referred to the same literature to state that in a case in the absence of positive chemical analysis report and after exclusion of any other cause of death by the doctor who has conducted the postmortem examination, the cause of death as poisoning can be opined on the basis of the circumstantial, moral and observations found on the deceased body during SC NO. 133/08 37 of 50 State vs. Satender the external and internal examination. Now the question therefore that arises is what are the circumstantial, moral and other observations found on the deceased body during its external and internal examination that led this doctor to give an opinion that there is a possibility that tranquillizers would have been administered alongwith alcohol to the deceased. As stated by this witness, the chemical analysis i.e. the examination of the viscera of the deceased did not lead to the detection of any tranquillizer. In his cross examination by the Ld. APP for the state he has also deposed that it is not possible to opine with certainty that it was only due to intake of tranquillizers along with alcohol that blood was found oozing from the nostrils of deceased and that his tongue was protruding and stuck between the teeth and fecal matter was found on his body. Thus this cross examination makes it amply clear that the doctor did not find any observations in the postmortem report to indicate that there were any signs externally on the body of the deceased which indicated that the victim had been administered tranquillizers alongwith alcohol. In other words the only factor that has weighed in the mind of the said doctor for giving his opinion is that since in the viscera of the deceased the level of alcohol was found slightly less than the fatal level and the IO of the present case informed him that the deceased might have been given tranquillizer by the accused, he opined that the possibility that death occurred due to synergistic effect of SC NO. 133/08 38 of 50 State vs. Satender alcohol and tranquillizer could not be ruled out. In fact the Ld APP for State perhaps realising the weakness of the case of prosecution in this regard has himself put to the said Doctor whether in this case it is possible that the death could have occurred due to the exertion of force or pressure on the body and the Doctor has stated that it is so possible. In other words the prosecution after the examination of PW31 is itself is not sure as to what led to the death of the victim.
23.Ld. APP for state has then contended that there are no definite chemical tests for each and every poison and further even if there is a recognizable poison, it may not be detected on account of various reasons including oxidation, etc. He has further contended that to rely upon only on the findings of the doctor who has opined with respect to the cause of death, as decisive of the matter, is to render the other evidence produced by the prosecution entirely fruitless. He has therefore submitted that the failure of the prosecution to prove with certainty that the cause of death of the victim was due to synergistic effect of alcohol and tranquillizers cannot be held fatal to the case of the prosecution for the prosecution has otherwise proved that accused was last seen in the company of deceased and that he had in his possession the stolen articles of the deceased and that therefore, as per the provisions of section 106 Evidence Act, it was for the accused to explain how Pranab Sakia was found dead and since he has failed to do so SC NO. 133/08 39 of 50 State vs. Satender it is to be inferred by this court that it is the accused who murdered the victim with the motive to steal his belongings. He has submitted that there is no evidence on record to suggest that the deceased had died a natural death and that therefore, this court must draw an inference that it was the accused alone who was responsible for the murder of the accused. In support of this contention, Ld. APP for State has relied upon two judgments of Hon'ble Supreme Court pronounced in the cases reported as State of Rajasthan Vs. Kashi Ram AIR 2007 SC 144 and Sh. Bhagwan Vs. State of Rajasthan AIR 2001 SC 2342. Ld. APP for state has also submitted that the fact that the accused in his statement u/s 313 Cr.PC has given evasive answers to all the questions put to him and his statement that he was not present with the deceased on the date of incident having been found false by this court is an additional circumstance which points to the guilt of the accused. In this regard he has placed reliance on the judgment of Hon'ble Supreme court pronounced in Sidharth Vashist @ Manu Sharma Vs. State AIR 2010 IV AD (SC) 441.
24. Though I am in complete agreement with Ld. APP for State that the failure of the doctor to correctly opine the case of death should not be taken as the end of the case, for in some cases the circumstantial evidence is so decisive that a court can unhesitatingly hold that it is the accused alone who SC NO. 133/08 40 of 50 State vs. Satender could have caused the death of a victim, I find it difficult to hold so in the present case No doubt, there are cases where even the dead body has not been discovered but yet the accused has been found guilty of murder but all the said cases are those in which it was the accused himself who had made it extremely difficult or in fact impossible for the prosecution to discover the dead body and get an opinion on the cause of death and the conduct of the accused was such that it could be decisively held that it is the accused only who could have murdered the victim and caused the disappearance of his body. For instance, in Tapubha Bhagvanji Vs. State AIR (2002) SC 2794, the husband was proved to have been torturing his wife for bringing insufficient dowry and on the night before the incident, the husband and wife were alone present in their house and the neighbours heard a big quarrel between the husband and wife and the next morning the wife was found dead and the husband cremated her body without even informing the parents of his wife and the said conduct of the husband was held to be so decisive that even in the absence of the cause of death, the husband was convicted of murdering his wife. It was held by the Hon'ble Supreme Court that in cases of dowry deaths, generally the crime is committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence and therefore, in view of section 106 of Evidence Act there is a corresponding burden on the inmates of the house to give a cogent SC NO. 133/08 41 of 50 State vs. Satender explanation as to how the crime was committed. It is in such kind of cases, that in my considered opinion, resort can be made to section 106 Evidence Act to shift the burden upon an accused to explain how the death of the victim occurred. In both the judgments (Kanshi Ram and Shri Bhagwan (supra)) relied upon by the Ld APP no doubt it has been reiterated by the Hon'ble Supreme court that if in a given case, the prosecution can successfully prove that the offences 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 property but also that he committed the murder, however it is to be noted that in both the said cases the cause of death was certain and the weapons of offence were also recovered. In Kanshiram's case, the death of the victim had occurred due to strangulation and the waist chord with which the victim had been strangulated was recovered at the instance of the accused who was the husband of the victim and was not on cordial terms with her. In Shri Bhagwan's case, five persons of a family were battered to death and gold and silver jewelery belonging to the deceased party were found in possession of the accused who was last seen with one of the victims and some injuries were also found on the person of the SC NO. 133/08 42 of 50 State vs. Satender accused and it was also proved that the accused had worked earlier in the shop of the victim and was removed because he committed theft. Thus, in both these cases, the Hon'ble Supreme Court did approve of the proposition that since the accused had not been able to satisfactorily explain the incriminating evidence against him, he was to be presumed to be guilty as per the provisions of the Evidence Act. However, it cannot be stated that the said proposition would be applicable in all cases. In Kanshi Ram's case, the Hon'ble Supreme Court itself observed that whether an inference is ought to be drawn u/s 106 Evidence Act is a question which must be determined by reference to proved facts and it is ultimately a matter of appreciation of evidence and therefore each case must rest on its own facts. Present is a peculiar case in which no doubt, the prosecution has been able to prove that the accused was last seen in the company of the deceased and he only had committed theft of his articles but it has not been proved on record that the death of the victim can be stated to be homicidal or murder alone. As narrated herein above, in the present case the medical opinion with respect to the cause of death cannot at all be relied upon to hold that the death has occurred due to the administration of tranquillizers by the accused to the victim. The conduct of the accused has also not been proved to be such that he can be held responsible in any manner whatsoever for the non detection of the tranquillizers in the body of the victim. The SC NO. 133/08 43 of 50 State vs. Satender prosecution, after the examination of PW31 is now itself not sure what caused the death of the victim but is only relying upon the provisions of Section 106 of the Evidence Act to shift the burden of proving the cause of death upon the accused.
25.In a case reported as Shambhu Nath Mehra Vs. The State of Ajmer AIR 1956 SC 404, the Hon'ble Supreme Court, while examining the circumstances in which the prosecution can be allowed to rely upon 106 Evidence Act to shift the burden of proving its case upon the accused, has laid down as follows:
"Section 106 is an exception to S.101. The latter with its illustration (a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and S.106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution, to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that it means facts that are preeminently or exceptionally within his knowledge......Section 106 must be considered in a common sense way; and the balance of convenience and the disproportion of the labour that would be involved the finding out and proving certain fact balanced with the SC NO. 133/08 44 of 50 State vs. Satender triviality of the issue as stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts."
26.Now in the present case, it cannot be at all stated that by his conduct the accused had made it extremely difficult for the prosecution to prove the cause of death or the facts leading to the death of the victim were so preeminently or exceptionally within his knowledge alone that he alone must be called upon to explain as to how the death of the victim in the present case occurred. The dead body of the victim was available to the investigating agency immediately after the incident occurred but yet it was not properly preserved and the medical science could not prove the exact cause of death. Further, despite the fact that as per the own case of the prosecution the accused had disclosed that he had purchased pink coloured sleeping pills from a shop and he had mixed the same with the paneer tikka consumed by the victim, neither an effort was made during investigation to take the accused to point out the said shop nor the plates containing the left over food at the place of incident was sent for analysis. Thus, the investigating agency has failed to collect evidence and then prove satisfactorily that the death in the present case is the result of poisoning and SC NO. 133/08 45 of 50 State vs. Satender the said failure cannot be attributed in any manner whatsoever to the conduct of the accused. The contention of the prosecution during the fag end of the trial that even if the death did not occur due to poisoning,the Court must make an inference that the accused alone must have caused the death of the victim, either by exerting pressure or force on him is too far fetched. On the other hand, the inference that the deceased could have died due to consumption of alcohol alone, can possibly be made as per the evidence on record. The viscera examination of the deceased has revealed that alcohol (and no tranquillizer or poison) was found in stomach, small intestine, liver, spleen, kidney, blood sample and the medical opinion is primarily that death occurred due to ethyl alcohol poisoning and only on the basis of the information given to him by the IO, the Doctor in question has added the words that the possibility of death occurring due to intake of tranquillizers with alcohol could not be ruled out. Literature by Modi referred to herein above (page 309) does record that the fatal dose of ethyl alcohol depends largely upon the habit and age of the patient and about 150 to 250 ML of absolute alcohol can be fatal for an adult but the Doctor in the present case did not bother to inquire about the habits of the deceased so as to exclude the possibility of death occurring only due to consumption of alcohol. Now if the information given by the IO which is based only on the inadmissible piece of evidence, namely the disclosure statement is taken out SC NO. 133/08 46 of 50 State vs. Satender from the purview of consideration, there is a possibility that the victim being a 48 year old man could have been rendered unconscious and had later died due to the consumption of a large amount of ethyl alcohol and the accused taking advantage of the unconsciousness of the victim made away with the belongings of the victim. Thus the circumstantial evidence in the present case is capable of an hypothesis other than the guilt of the accused and can be stated to be consistent with his innocence as regards the offence of murder. It is well settled law that in a case of circumstantial evidence, it is absolutely necessary for a court to be satisfied that the circumstantial evidence is incapable of explanation of any other hypothesis than that of the guilt of the accused and in case on the basis of the prosecution evidence itself, the court is satisfied that the circumstantial evidence is capable of an explanation consistent with the innocence of an accused then the accused is entitled to be given the benefit of doubt. In as far back as in 1960 in a case of poisoning, titled and reported as Anant Chintaman Lagu Vs. The State of Bombay AIR 1960 SC 500, the Hon'ble Supreme Court has after reiterating that in case of poisoning the prosecution must establish that the death took place by poisoning and that the accused had the poison in his possession and the opportunity to administer the poison to the deceased, has also held that " if the evidence in a particular case does not justify the inference that death is the result of poisoning because of the failure of SC NO. 133/08 47 of 50 State vs. Satender the prosecution to prove the fact satisfactorily, either directly or by circumstantial evidence, then the benefit of the doubt will have to be given to the accused person. But if circumstantial evidence, in the absence of direct proof of the three elements, is so decisive that the court can unhesitatingly hold that death was a result of administration of poison (though not detected) and that the poison must have been administered by the accused person, then the conviction can be rested on it". In the facts before the Hon'ble Supreme Court, the accused was a doctor and was a family doctor of the deceased lady and her close confidante. He was aware of all the financial affairs of the lady and had her complete trust. It was alleged against him that on a train journey, he administered poison to the deceased and then took her to a hospital and claimed that the lady had a sudden fit on the journey and had collapsed and then left her at the hospital and gave a wrong history of her ailments which led the doctors concerned to give a wrong opinion about her cause of death. He then left without informing the hospital authorities about her correct address and the details of her relatives. By this conduct he made sure that the body would remain unclaimed for a passage of time and would then be handed over for dissection purposes. He thereafter, step by step managed to misappropriate all the properties of the said lady. A three judge bench of SC NO. 133/08 48 of 50 State vs. Satender Hon'ble Supreme Court by a majority opinion (one of the Hon'ble judges gave a dissenting opinion) upheld the conviction of the accused, despite there being no detection of poison in the body of the victim, on the basis that the accused himself was a doctor and by his conduct had made it extremely difficult for the prosecution to get the poison detected in the body of the victim. However as discussed herein above,in the present case there no circumstances proved before this court that death was a result of administration of poison(though not detected) and that it was the accused who made it difficult for the prosecution to get the poison detected in the body of the victim. On the contrary, the accused is a young person belonging to the lower strata of society who was, as per the own case of the prosecution, invited by the deceased to have sex and drinks with him. On the material before this court there can be no presumption made that he knew first of all the synergistic effect of tranquilizers and alcohol and then also knew how to make sure that the tranquilizers are not detected in the body. In such view of the matter, in view of the aforementioned judicial dicta, (underlined words) I am of the considered opinion that the accused in the present case is entitled to be given the benefit of doubt as regards the offence of commission of murder for the prosecution has failed to prove that the accused had administered tranquilizers to the deceased. I am also of the considered opinion that in the facts of the present case discussed herein SC NO. 133/08 49 of 50 State vs. Satender above the prosecution cannot take the aid of Section 106 Evidence Act and be allowed to turn around, at the end of the trial, to state that if they have been unable to prove that the accused had administered tranquilizers to the victim, it must be taken that he alone caused his death as he has failed to explain the circumstances in which the victim died.
27.In view of my discussion herein above, it is to be held that though the prosecution has been able to prove beyond doubt that the accused had committed theft of the articles belonging to the deceased and his nephew, it has failed to prove beyond reasonable doubt that the accused had also committed the murder of the deceased. The accused is therefore held guilty of the offence punishable u/s 379 IPC but is acquitted of the offence punishable u/s 302 IPC by giving him the benefit of doubt. Admittedly, the accused has already spent a period of almost more than four years in custody i.e. more than the maximum punishment that can be imposed upon him for the offence punishable u/s 379 IPC and therefore, by extending him the benefit of section 428 Cr.PC, it is hereby directed that he be released from judicial custody if not required in any other case. Announced in open Court on this 24th day of March, 2012 (Anu Grover Baliga ) Special Judge NDPS : New Delhi Patiala House : New Delhi SC NO. 133/08 50 of 50