Delhi District Court
State vs Sheoraj on 11 January, 2008
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IN THE COURT OF SH. NARINDER KUMAR
ADDL. SESSIONS JUDGE: FAST TRACK COURTS
ROHINI:DELHI
SC No. 5/2 dated 02.01.2007
Date of Decision: 11th of January, 2008.
State
Versus
1. Sheoraj
Son of Mam Chand
R/o Village- Bajdhara
Tehsil Budhana
District-Mujaffar Nagar (U.P. )
2. Saroj
Wife of Late Raghubir Singh
R/o Village-Dodawa
PS- Gohana
3. Sri Niwas @ Bumbai (since P.O.)
Son of Dhani Ram
R/o Village- Nizampur,
Tehsil- Budhana,
District- Muzaffar Nagar (U.P.)
FIR No. 372/05
PS- Narela
U/s.- 302, 201, 120B read with Section 34 IPC
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JUDGMENT
First the Facts Both the accused No.1 and 2, named above, have been facing trial for offences U/s. 120B, 302 and 201 read with Section 34 IPC. Accusation levelled against them is that on or about 31.07.2005, both of them alongwith Sri Niwas @ Bumbai son of Dhani Ram (Since proclaimed offender) entered into criminal conspiracy to commit murder of Raghubir. Said Raghubir was husband of Saroj accused. All of them are then alleged to have committed murder of Raghubir around 30.07.2005. All the three accused are also alleged to have attempted to cause the evidence regarding murder to disappear by removing the dead body of Raghubir.
Present case was registered on the statement made by HC Kanwal Singh, posted at PS- Alipur, as he while present near railway level crossing No.17 in the area of Bakner, witnessed the female accused taking away dead body of Raghubir Singh in a bundle, in the company of two male persons on 31.7.2005 at about 5 a.m. Case of prosecution is that on 31/07/2005, Vijay Kumar employed as Gateman in Northern Railways was -:3:- present on his duty at Railway level Crossing No.17 (phatak) i.e. of Village Bakner. At 5 a.m., he shut down the barrier, as Jammu Mail Train No. 4034 was approaching from Jammu. Thereafter, he went to nearby forest to ease himself. At that time, he noticed Saroj, Sheoraj accused, their companion and two children , while they were present at a distance of about 40 metres from the cabin. At that time, Sheoraj accused was carrying a bundle. On seeing them, Vijay Kumar did not go towards that side but went to the other side . After easing himself, he returned to the cabin. By then, Jammu Mail Train had crossed the Railway level Crossing. At that time, Vijay Kumar observed that both the accused and the children crossing the railway level crossing. Head Ct. Kanwal Singh also came there. Suspicion arose in the mind of Head Ct. Kanwal Singh and as such he enquired from accused Saroj, who was carrying the bundle, as to what she was carrying in it. She replied that there were household articles in it. The HC further enquired about the nature of household articles and as to from where she had got them. Thereupon, she replied to have bought the same from her quarter. Head Ct. Kanwal Singh then asked accused Saroj to show him the bundle but she refused. Ultimately, the HC brought the bundle -:4:- down from the head of accused Saroj and directed her to open it. But she refused. The HC then opened bundle and found a dead body of a naked male person lying in it. Accused Saroj then fled away. The HC saw Sheoraj accused going towards Railway Station Bakner. He with the assistance of other persons from the public apprehended Sheoraj accused and brought him near the bundle. Some persons from the public called PCR and that is how PCR staff reached there.
Case of prosecution is that on the same day at about 05:54 a.m., Constable Satender Kumar received call, while posted in PCR, ITO Police Headquarter, from telephone no. 55218340 to the effect that dead body of male person was lying near Railway Level Crossing Bakner. He was so informed by Anwar from STD-PCO Booth situated on Railway Road, near Railway Level Crossing Bakner. The Constable recorded this information in PCR Form. He then communicated this information by forwarding the PCR form to another official of PCR for its onward transmission.
SI Ishwar Singh received the information and reached railway level crossing in the company of Head Constable Saheb Singh (then Constable). Inspector Manohar -:5:- Singh also reached the spot. Statement of Head Ct. Kanwal Singh was recorded. Ruqqa was drafted and sent to Police Station Narela through Constable Saheb Singh and on its basis present case was registered.
Crime team was called to the place where the dead body was lying. Head Ct. Sajjan Kumar, a member of the crime team, took photographs of the dead body. Inspector Manohar Singh prepared rough site plan. Inspector Sat Prakash, Incharge of Mobile Crime Team, North West District, inspected the spot near the Railway Level Crossing and prepared report.
The bundle from which the dead body was recovered consisted of one bed sheet and a gadela (galicha) Both these items were turned into parcel, sealed with the seal bearing impression MS and then seized. Sheoraj accused was arrested and his personal search was conducted.
Sheoraj accused made disclosure statement which revealed that it was dead body of Raghubir. He then offered to get discovered a dupatta, used in strangulating Raghubir, from the house of said Raghubir, situated in Swatantra Nagar. In pursuance thereof, Sheoraj accused led the police party headed by Inspector Manohar Singh to the -:6:- house of Raghubir (since deceased) in Swatantra Nagar. On reaching the house of Raghubir, Sheoraj accused pointed out towards red colour dupatta lying on a cot. The dupatta was turned into parcel, sealed with the seal bearing impression MS and then seized. Three election identity cards, one ration card and one copy of complaint purported to have been made by Saroj - wife of Raghubir (since deceased) were recovered from a packet lying in the room of Raghubir. These were seized.
During investigation, police went in search of co accused Saroj, but she was not traceable.
On 01/08/2005, Inspector Manohar Singh accompanied by his staff reached Mortuary of BJRM Hospital, carried out inquest proceedings. Dead body was identified by Rohtash, brother and Dharampal, uncle of Raghubir.
Dr. Upender Kishore conducted autopsy on the dead body of Raghubir on 01/08/2005 and submitted report. In the opinion of the doctor, cause of death of Raghubir was asphyxia as a result of ante-mortem strangulation by ligature. Injuries no. 1 to 6 were the result of blunt force impact. The doctor preserved viscera and blood. Constable Deepak collected three sealed parcels from the doctor of BJRM -:7:- hospital on 17/09/2005 and handed over the same to HC Mahender Singh on the same day. In this regard, memo was prepared. HC Mahender, in turn, produced the same before HC Satpal. After the autopsy, the dead body was delivered to Rohtash and Dharampal.
Sheoraj accused was produced was to police custody. It was on 02/08/2005 that Head Ct. Kanwal Singh accompanied by Inspector Manohar Singh and other police officials reached Railway Station Narela from where co accused Saroj was arrested. She also made disclosure statement.
On 18/10/2005, Inspector Manohar Singh collected dupatta from MHC (M) and took the same to the doctor of BJRM hospital and submitted application to have opinion of the doctor. After giving his opinion the doctor turned the dupatta in a parcel sealed with his own seal and handed over the same to the Inspector, who in turn, deposited the same with MHC(M).
Co accused Sriniwas could not be arrested despite search. Ultimately he was declared proclaimed offender.
On completion of investigation, challan was put in -:8:- court against Sheoraj and Saroj, both the accused, while name of Sri Niwas @ Bumbai was shown in column No. 2 of the report as he could not be arrested.
After supply of copies of challan and all relevant documents relied on by the prosecution, case was committed to Hon'ble Court of Session vide order dated 24.11.2005. Charge Prima facie case having been made out, charge for offences u/s. 120B, 302 and 201 read with Section 34 IPC was framed against both the accused on 19.05.2006. Since the accused persons pleaded not guilty and claimed trial, prosecution was called upon to lead evidence. Prosecution Evidence In order to prove its case, prosecution has examined following 19 witnesses:
PW HC Kanwal Singh, complainant, who noticed the accused persons taking away the dead body in a bundle, has been examined as PW12.
PW10 Sh. Vijay Kumar is the Gateman, employed in Northern Railway and present on Railway Level Crossing No. 17 of Bakner, who has also deposed about recovery of dead body from a bundle being taken away by the accused -:9:- on 31.07.2005 at Railway Level Crossing.
PW1 Constable Satender Kumar, then posted in PCR, has been examined to prove telephonic call received about dead body of a male lying near Railway Level Crossing Bakner, on 31.07.2005 at 5.54 a.m., and also to have recorded this information in PCR form Ex. PW1/A. PW2 Sh. Anwar was running STD booth near Railway Level Crossing Bakner from where call was made to PCR at number 100 so as to inform that the dead body was lying near the Railway Level Crossing.
PW4 Sh. Ram Chand has been examined to prove recording of FIR Ex. PW4/A on the basis of ruqqa received from the SHO through Constable Saheb Singh on 31.07.2005 at 7.55 a.m. Medical evidence is available in the statement of PW3 Dr. Upender Kishore who conducted autopsy on the dead body of Raghubir and submitted report Ex. PW3/A. PW6 Sh. Rohtash is brother and PW7 Dharampal is nephew of Raghubir, who identified his dead body on 01.08.2005 at Mortuary, Jahangirpuri.
PW8 HC Sajjan Kumar, as a member of Mobile Crime Team, deposed about is visit near Railway Level -:10:- Crossing and to have taken photographs.
PW9 Inspector Sat Prakash was In-charge of the Mobile Crime Team which reached near the Railway Level Crossing and submitted report Ex. PW9/a.
PW5 SI Manohar Lal has been examined to prove scaled site plan Ex. PW5/A depicting the place where recovery of dead body was made.
PW11 Constable Ajay Kumar, PW13 HC Satpal, PW14 SI Ishwar Singh, PW15 HC Joginder, PW16 HC Mahender Singh, PW17 Constable Deepak, PW18 HC Saheb Singh and PW19 Inspector Manohar Singh have deposed about investigation part of the prosecution story.
Report dated 08.08.2007 received from FSL has also been tendered into evidence.
When examined under Section 313 Cr.PC, the accused denied all the incriminating circumstances appearing in evidence against them and claimed false implication. However, they opted not to lead any evidence in defence.
Arguments heard. File perused.
This case is based on circumstantial evidence. It is well settled that the following conditions must be fulfilled before a case against an accused based on circumstance -:11:- evidence can be said to be fully established; (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established. (2) the facts so established should be consistent only with the hypothesis of the guilty of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. Case law discussed.
A case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction.
In this respect, reference may be made to decision in Sharad v. State of Maharashtra, AIR 1984 Supreme -:12:- Court 1622.
In this case, prosecution has relied on following circumstances to connect the accused with the commission of the crime:
(a) Medical evidence;
(b) Sheoraj and Saroj accused seen
moving with the dead body contained in a bundle near railway level crossing in the morning of 31.07.2005; arrest of Sheoraj accused while he was trying to flee away; recovery of dead body;
(c) Making of Disclosure statement by Sheoraj accused and recovery of dupatta stated to have been used in strangulating Raghubir Singh (since deceased), from the house of the deceased on the same day i.e. 31.07.2005;
(d) Recovery of Election I-cards, ration card and copy of complaint made by Saroj accused, from the house of Raghubir accused (since deceased) at the instance of Sheoraj accused on the same day i.e. 31.07.2005; and
(e) Smt. Saroj accused remained absconding and was arrested on 02.08.2005 on the pointing out of the complainant- HC Kanwal Singh from railway station Narela.
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Learned Additional Public Prosecutor referred to statement of PW10 Vijay Kumar, the gateman, present on duty on Railway Level Crossing No. 17 of Village Bakner and the statement of PW12 HC Kanwal Singh of Police Station- Alipur, who was returning from his duty and going to board some private vehicle to reach his house, when they saw both the accused, namely, Sheoraj and Saroj with the dead body contained in a bundle. Learned Additional Public Prosecutor contended that whereas Sheoraj accused was arrested at the Railway Level Crossing, Saroj accused made good her escape and remained absconding till 2005, and that conduct of the accused persons further establishes their involvement in the murder of Raghubir Singh.
Learned Additional Public Prosecutor also referred to the prosecution evidence regarding disclosure statement made by Sheoraj accused on 31.07.2005 and recovery of Red dupatta and other articles on the same day from the house of Raghubir Singh (since deceased) situated in Swatantra Nagar, Delhi. It has been contended by learned Additional Public Prosecutor that recovery of these items at the instance of Sheoraj accused also establishes involvement of two accused persons in the murder of Raghubir Singh. -:14:-
Reference has also been made to medical evidence available in the shape of postmortem examination report and in the form of statement of PW3 Dr. Upender Kishore, and it has been argued that opinion given by the doctor regarding cause of death of Raghubir was asphyxia as a result of ante-mortem strangulation by ligature finds corroboration from other evidence available on record. So, it has been contended by learned Additional Public Prosecutor that both the accused are liable to be convicted and sentenced for the murder of Raghubir Singh in furtherance of criminal conspiracy and then attempting to destroy evidence by concealing the dead body so as to screen themselves from legal punishment.
On the other hand, learned defence counsel contended that statement of PW10 Vijay Kumar-the gateman of Indian Railways and that of PW12 HC Kanwal Singh are in contradiction with each other on material aspects so far as the person, who was seen carrying the bundle containing the dead body, which create doubt in the version of the prosecution regarding presence of these two PWs on the given date, time and place.
It has also been contended by learned defence -:15:- counsel that prosecution witnesses are in contradiction with each other regarding factum of arrest of Sheo Ram as some of them did not depose having seen Sheoraj accused at the Railway Level Crossing. Contention of learned defence counsel is that Sheoraj accused was actually lifted by the police from Railway Station on 31.07.2005 and then falsely implicated in this case.
As regards recovery of Red dupatta and other items alleged to have been made on the basis of disclosure statement of Sheoraj accused, learned defence counsel has contended that despite opportunity the investigating officer failed to associate any witness from the public or the landlord of the house from where these recoveries are stated to have been made. It has been contended by learned defence counsel that absence of corroboration from independent source or attestation of the documents by any independent witness, creates doubt in the version of prosecution regarding any such recovery. Learned defence counsel has referred to the prosecution evidence wherein it has appeared that dead body was got preserved, and argued that this goes to show that identity of the dead body could not be established which led to preservation of the dead body, and as such, -:16:- prosecution version regarding involvement of Sheoraj accused in the commission of the crime, becomes highly doubtful.
Learned defence counsel has submitted that Saroj accused was actually away to the house of her daughter and police picked up her from there and then falsely implicated her in this case. Learned defence counsel has also referred to the statements of PW12, PW18 and PW19 and argued that in view of contradictions in their statements regarding the place of arrest of Saroj accused, prosecution case becomes further doubtful.
(a) Medical Evidence Medical evidence is available in the statement of PW3 Dr. Upender Kishore who conducted autopsy on the dead body of Raghubir on 1.8.2005 and submitted report Ex. PW3/A. The doctor observed following injuries on the dead body:
External Antemortem Injuries:
1. Reddish abrasion of size 2x1 c.m. present over the outer aspect of left middle forehead.
2. Reddish abrasion of size 1x1 c.m. present over the left side face below the left side of lower lip. -:17:-
3. Reddish abrasion of size 2x1 c.m. present over the right side chin.
4. Reddish abrasion of size 3x1 c.m. present over the middle of neck 7 c.m. below the chin.
5. Reddish abrasion of size 2x1 c.m. present over the back of left side shoulder.
6. Reddish abrasion of size 3x2 c.m. present over the outer aspect of back of left shoulder.
7. Ligature mark present around the neck over the tyroid cartilage completely encircling the neck in the midline 2.5 c.m. broad and placed 7 c.m. below the chin on the right side of neck a mark of 2.5 c.m. broad and placed 6 c.m.
below the right side mastoid. On the left side of neck, a mark of 2.5 c.m. was broad and placed 9 c.m. below the occiput. The mark is soft to feel and multiple haemorrhages present over the mark.
Internal Examination:
Petechial haemorrhages seen under the scalp, brain congested, neck structure intact, multiple small haemorrhages seen in the soft tissue of the neck and muscles of neck. Both lungs congested. All internal organs congested and soft to touch. Stomach contained 50 ml. Liquid. Mucosa -:18:- congested. No abnormal smell appreciable. Time since death about 2 days.
In the opinion of the doctor, cause of death of Raghubir was asphyxia as a result of ante-mortem strangulation by ligature. Injuries no. 1 to 6 were the result of blunt force impact. The doctor preserved viscera and blood. Report of expert of FSL would reveal that on chemical, Thin Layer Chromatography, GC-HS and GC-MS examination, Metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquillizers and insecticides could not be detected in exhibits '1A', '1B' & '1C'.
Therefore, from the scientific evidence it stands proved that Raghubir Singh died because of asphyxia as a result of ante mortem strangulation and that injuries No.1 to 6 on the dead body were result of blunt force impact.
Question arises as to who killed Raghubir Singh?
(b) Sheoraj and Saroj accused seen moving with the dead body contained in a bundle near railway level crossing in the morning of 31.07.2005; arrest of Sheoraj accused while he was trying to flee away; recovery of dead body:
Present case came to be registered on the statement of Head Constable Kanwal Singh made before -:19:- Inspector Manohar Singh near railway level crossing of village Bakner. Head Constable Kanwal Singh is stated to have apprehended Sheoraj accused with the assistance of persons from the public while his two co accused - Saroj and another fled away after the head constable started checking the bundle being carried by the female accused and found that it contained a dead body of a male. Information reached police of Police Station Narela vide DD No. 30A which was to the effect that dead body of a male was found lying near railway level crossing Bakner. This information was received at about 6 a.m. On the basis of this information, Inspector Manohar Singh accompanied by SI Saheb Singh left the police station, though, SI Ishwar Singh was also informed about this fact and that is how the dead body was recovered and Sheoraj accused was apprehended. In this regard, prosecution has relied upon statements of PW12 Head Constable Kanwal Singh, PW1 Constable Satender Kumar of PCR staff, PW2 Sh. Anwar who runs a STD-PCO near the railway level crossing, PW10 Vijay, gateman of Indian Railways at the railway level crossing, PW18 Head Constable Saheb Singh and PW19 Inspector Manohar Singh.
According to PW12 Head Constable Kanwal -:20:- Singh, then posted at Police Station Alipur, on 31/07/2005 after his duty hours were over, he was going to his house situated in village Nahari. To go to his village, he was to board some private vehicle from railway level crossing. He reached the railway level crossing at 05:15 a.m. He started waiting for some vehicle. At that time, he saw two male persons and one female person near the railway track, by the side of bushes. He further deposed that the female called one of the male persons and picked up a bundle from the bushes. Ultimately, the bundle was placed on her head. The female was accompanied by two children - one male and the other female. One of the aforesaid two male persons, accompanying the female carrying the bundle, started moving towards village Bakner whereas other male person started moving towards the railway station. On seeing this, suspicion of theft arose in the mind of the witness. He then crossed the railway line, asked the female to stop, then enquired from the female as to what she was carrying in the bundle. When she replied that she was carrying household articles in it, the witness enquired as to what was nature of household articles and from where she had brought them. She replied that she had brought the same from her Quarter. The witness insisted -:21:- her to show the contents of the bundle, but she refused. It was at that time that witness brought the bundle down from her head and directed her to open it. But she refused. In the meanwhile, gateman of the railway who was present in the cabin came to him. The witness asked the gateman to open the bundle. but he refused suggesting that witness should himself open it. The witness then opened the bundle and found dead body of a naked male person lying in it. However, by the time he looked backward the female had already fled away. The witness identified the male person accompanying the aforesaid lady as Sheoraj accused, present in court and stated that he was apprehended by him with the assistance of the persons from the public and then brought near the bundle. However, according to the witness some persons from the public informed the PCR and the PCR staff reached the spot. It is also in his statement that he produced Sheoraj before the PCR staff. He also produced the bundle containing the dead body before the PCR staff. After some time, SHO and ACP also reached the spot. The witness proved his statement Ex.PW12/A made before the police. He also identified Sheoraj accused present in court as the lady who was carrying the bundle containing the dead -:22:- body.
As regards arrest of Saroj accused, the witness stated that she was arrested on 02/08/2005 at about 03:45 p.m. at his identification, from the platform of railway station Narela.
In his cross examination, the witness deposed that when he enquired from Saroj accused about the bundle, it was at about 05:15 a.m. and sun was going to rise. He specifically stated that there was day light at that time.
The aforesaid statement made by PW12 Head Constable Kanwal Singh is in line with the statement made by PW10 Vijay Kumar, gateman, on duty at railway level crossing No.17 i.e. of Village Bakner. According to him, at about 5 a.m., he shut down the barrier, as Jammu Mail Train was approaching from Jammu with destination to Delhi. Then he went to the nearby forest to ease himself. At that time, he noticed one lady, identified by him as Saroj accused present in the dock, who was accompanied by two children and a male namely Sheoraj accused as identified by the witness, who present at a distance of about 40 metres from his cabin. The witness further stated that they were having with them a bundle. On seeing them present there, he did not go in that -:23:- direction and rather went to other side to ease himself. After easing himself he returned to the cabin. By then Jammu Mail had crossed the railway level crossing.
The witness further deposed that when he was present at the cabin, he observed that the male person Sheoraj accused picked up the bundle on his head and started crossing the railway level crossing in the company of the female - Saroj, and two children referred to above. At the same time, the witness saw Head Ct. Kanwal Singh. According to the witness, the head constable enquired from him (the witness) as to what was in the bundle but he displayed ignorance. It was thereafter that the head constable followed the aforesaid male, female and the two children, and checked the bundle. It is also in his statement that then head constable called him to that place and on reaching there he found that the female and the two children were not there. The head constable raised alarm to attract public and that is how the male person - Sheoraj accused was apprehended. The head constable then brought Sheoraj near the cabin.
From the above statement of PW12, it transpires that he has fully supported the case of prosecution to have -:24:- seen Sheoraj and Saroj accused and two children near the railway level crossing and Head Constable Kanwal Singh having followed them and checked the bundle and also that when he reached near the head constable and the bundle was opened, the female and the children were not there. The witness has also fully supported the case of prosecution regarding recovery of dead body contained in bundle and apprehension of Sheoraj accused.
It is true that PW12 Head Ct. Kanwal Singh deposed that it was the female who was carrying the bundle whereas PW10 Vijay Kumar has deposed that it was the male person Sheoraj who picked up the bundle on his head. But this contradiction in their statement does not adversely affect the case of prosecution. It is possible that Vijay Kumar saw, Sheoraj accused picking up the bundle and that is why he so stated in Court. PW10 denied that on 31/07/2005 at about 5 a.m., there was darkness, and that he could not see any of the two accused. In his cross examination, the witness denied that anyone helped him in refreshing his memory on 24/09/2007. It is in his statement that his statement was recorded by the police at about 7 a.m. This shows that his version was recorded without any delay. -:25:-
Even statement of HC Kanwal Singh was recorded without any delay. As noticed above, present case was registered on the statement made by PW12 Head Ct. Kanwal Singh. That statement is Ex.PW12/A. It was recorded by Inspector Manohar Singh and concluded at about 07:45 a.m. and on its basis present case was registered without any delay at 07:55 a.m. vide FIR Ex.PW4/A. Factum of dispatch of ruqqa from near the railway line crossing through constable Saheb Singh stands duly established. All material particulars of the case i.e. presence of Head Constable Kanwal Singh near the railway level crossing at 05:15 a.m. while waiting for a vehicle; arrival of the female accused (Smt. Saroj) with a bundle on her head after crossing the railway line, towards Bakner in the company of two male persons and two children - one aged about 13 years and other aged about 8/9 years ; making of enquiry from the female about the contents of the bundle; refusal of the female accused in getting the contents of the bundle checked; arrival of Vijay Kumar gateman from the cabin; opening of bundle and recovery of dead body from it; running away of the female and the children; running away one of the male person towards the railway station and other towards Viilage Bakner; -:26:- apprehension of Sheoraj accused from the side of railway station with the assistance of persons from the public and factum of the information given to PCR staff, find mentioned in Ex.PW12/A. Had all this not been witnessed by head constable Kanwal Singh, these significant facts would not have found mentioned in Ex.PW12/A recorded immediately thereafter. Prompt recording of report Ex.PW12/A at the railway level crossing by Inspector Manohar Singh is a pointer towards the genuineness of the version recorded in Ex.PW12/A. There is nothing in the statement of HC Kanwal Singh that he was inimical towards Sheoraj accused or Saroj accused so as to falsely name them in a serious case like the present one. Similarly, there is nothing in the statement of PW10 Vijay Kumar- the Gateman in the Indian Railways, that he was interested in the prosecution or a stock witness of the police or inimical towards any of the two accused, rightly identified by him in court, as the persons seen with the bundle containing the dead body on 31.07.2005 at about 5.00 a.m., near Railway Level Crossing No.17, Bakner. It has not been contended on behalf of the accused that PW10 was not employed as Gateman at the said Railway Crossing. PW10 -:27:- has also provided even minute details which strengthen the version of prosecution regarding his presence on the given date, time and place. For example, PW10 told in Court even the name of the train, which crossed the railway level crossing at the time he noticed the accused persons with the bundle.
It is in statement of PW10 that persons from the public passing by that side came towards his cabin and started beating Sheoraj accused. Statement of PW10 is in consonance with the statement made by PW12 HC Kanwal Singh. Had Sheoraj not been apprehended then and there, how this fact of beating by the public could figure in their statements.
So statements of PW10 and 12 have lent full corroboration to the version of prosecution narrated above.
PW10 also deposed about arrival of PCR staff at the spot within five minutes. Evidence on record reveals that PCR staff reached the spot after having received call from telephone number- 55218340 to the effect that the dead body of a male person was lying near Railway Level Crossing, Bakner. In this regard, prosecution has examined PW1 Constable Satender Kumar, then posted in PCR. According to him, after receipt of call from the aforesaid telephone -:28:- number from one Anwar, he recorded this information in PCR form, copy whereof is Ex. PW1/A. Contents of Ex. PW1/A lend corroboration to the statement of PW1. Aforesaid Sh. Anwar has been examined as PW2. During those days, he was running a STD Booth near railway level crossing, Bakner. According to him, on 31.07.2005 at about 5.45 a.m., when he opened his shop, persons from the public were found present near the Railway Level Crossing. Those persons requested him to inform PCR at number 100 that a dead body was lying near the Railway Level Crossing, Bakner. Accordingly, he rang up PCR staff and conveyed the information. According to the witness, he had rung up the PCR staff on telephone number 55218340. This very telephone number finds mentioned in Ex. PW1/A. From the statements of PW1 and PW2, it stands established that PCR staff learny about the dead body lying near the Railway Level Crossing on 31.07.2005 at 5.44 a.m. All this is in corroboration of the statements of PW10 and PW12. It is true that PW2 Sh. Anwar, the STD booth owner did not state about presence of Sheoraj accused near the Railway Level Crossing, but this fact does not adversely affect the case of prosecution as the witness might have thought it proper to remain present at his -:29:- shop instead of going to see the dead body or to see as to who had been apprehended by the public.
In the PCR form Ex. PW1/A proved by PW1, it stands recorded that PCR staff received further information that Shiv Raj son of Mam Chand, resident of Bajwara, PS Shahpur, had also been apprehended by the public and that a female and child had made good their escape. It also stands recorded in Ex. PW1/A that employee of the Railways present at the Railway Level Crossing had seen all of them. These contents recorded in Ex. PW1/A lend support to the prosecution version regarding presence of PW10 Vijay Kumar-the Gateman, on the given date, time and place, and to have witnessed the accused persons.
PW14 SI Ishwar Singh reached the Railway Level Crossing in the company of Constable Saheb Singh and found the dead body of a male person lying there. He further deposed about arrival of the SHO and dispatch of ruqqa from the spot through Constable Saheb Singh. The witness then proved seizure memo Ex. PW14/A regarding seizure of clothes i.e. galicha, dead body and a bed sheet. It is in his statement that bed-sheet and galicha were turned into a parcel and sealed with the seal bearing impression "MS". -:30:-
Sheoraj accused has come forward with the plea that he was arrested by the police on the evening of 31.7.2005 from railway station Narela. This plea does not find corroboration from the prosecution evidence. Accused has not led any evidence to prove this plea. Even otherwise, as noticed above, his name figured in the statement of HC Kanwal Singh recorded at about 7.40 a.m resulting in lodging of FIR without any delay. How could police visualize in the morning that in the evening Sheoraj accused was going to be arrested and that he should be named in the FIR. Therefore, it cannot be said that he was so arrested from railway station Narela and that too in the evening.
PW14 SI Ishwar Singh has specifically deposed about presence of HC Kanwal Singh at the spot whose statement was recorded by the SHO and which formed basis of registration of this case. The witness then identified galicha Ex. PW12/1 and bed-sheet Ex. PW12/2 which were seized in his presence. It is in his cross examination that they reached the Railway Level Crossing at about 6.05 a.m. DD no. 30A was recorded at PS Narela at about 6 a.m. Name of SI Ishwar Singh (PW14) stands recorded in this DD entry. Recovery memo Ex. PW14/A bears attestation of this witness. -:31:- The memo was prepared by Inspector Manohar Singh (PW19).
Presence of HC Kanwal Singh at the Railway level Crossing stands fully established also from the statement of PW19 Inspector Manohar Singh, who reached the spot vide DD No. 30A Ex. PW19/A. The Inspector deposed about recovery of the dead body of a male person, while it was lying on a galicha. He also proved recording of statement Ex. PW12/A of HC Kanwal Singh, dispatch of ruqqa Ex. PW19/B to the police station through Head Constable Saheb Singh. In his cross examination, PW19 deposed about presence of the gateman of the Railway Level Crossing in addition to SI Ishwar Singh, PCR Staff and Constable Ramesh at the Railway Level Crossing. It is true that PW19 deposed in his cross examination that persons from the public were not present near the Railway Level Crossing whereas PW2 Sh. Anwar, PW10 Vijay Kumar and PW12 HC Kanwal Singh have deposed about presence of persons from the public, but non-joining of witnesses from the public, as per well settled law, puts the court on guard to scrutinize statements of prosecution witnesses with more care and caution.
-:32:-
PW18 HC Saheb Singh has lent full corroboration to the aforesaid version of prosecution by stating about his arrival near the Railway Level Crossing on 31.07.2005 at about 6.15 a.m. and about presence of dead body of a male person, aged about 40/45 years, lying on a bed-sheet with a galicha type item under it. It is in his statement that HC Kanwal Singh was present there and that he made statement before the SHO and that at about 7.40 a.m., he took ruqqa from there to the police station and got this case registered. Name of HC Saheb Singh finds mentioned in the ruqqa. It is also in his statement that HC Kanwal Singh had already apprehended Sheoraj accused. The witness has proved arrest memo Ex. PW18/C and personal search memo Ex. PW18/D prepared in respect of arrest of Sheoraj accused. It is in his cross examination that they left the police station at about 6 a.m. He further deposed about presence of the gateman of the Railway Level Crossing there at the Railway Level crossing. He also deposed to have returned to the spot at about 10.45 a.m. after getting the case registered.
As regards PCR staff, the witness deposed in his cross examination that PCR staff was present there. According to him, PCR staff left the spot after arrest of the -:33:- accused. It is true that PW10 Vijay Kumar stated in court that the mail person,namely, Sheoraj was taken away by the PCR staff at 5.30 a.m., but from the other evidence, available on record, it stands duly established that Sheoraj accused was arrested from near the Railway Level Crossing. Therefore, when PW10 stated that the PCR staff took away Sheoraj accused, the same does not adversely affect the case of prosecution.
Learned defence counsel then referred to the statements of PW8 HC Sajjan Kumar and PW9 Inspector Sat Prakash, members of the Mobile Crime Team, and submitted that none of them deposed about presence of Sheoraj accused at the spot , and as such, the prosecution version regarding his arrest from near the Railway Level Crossing is doubtful.
PW8 HC Sajjan Kumar, is a Photographer and a member of Mobile Crime Team. He reached near the Railway Level Crossing, Bakner, and took photographs Ex. PW8/A1 to A5. Negatives prepared from the photographs are Ex. PW8/A6 to A/10. It is in his statement that the dead body was lying covered in a galicha near the Railway Level Crossing, by the side of the road. He has fully supported the case of -:34:- prosecution regarding receipt of information about the occurrence at about 6 a.m. and regarding there arrival at the spot at about 6.30 a.m. He has also supported the prosecution version about presence of SI Ishwar Singh, other police staff and also about presence of persons from the public. In his cross examination, he stated to have not noticed if persons from the public had caught hold anyone at the spot. But it was not specifically suggested to the witness by learned defence counsel that he did not see Sheoraj accused present at the spot either with HC Kanwal Singh, with PCR staff or with the police.
PW9 Inspector Sat Prakash was In-charge of Mobile Crime Team. He reached the Railway Level Crossing with other members of the Crime Team, inspected the spot and then prepared report Ex. PW9/A. Report Ex. PW9/A reveals that the Crime Team, headed by PW9, remained at the spot from 6.30 to 7.30 a.m., and that dead body of a unknown male, aged 50/55 years, wrapped in a carpet, was found lying near the Railway Level Crossing. It also finds mentioned in it that carpet and one cloth were seized by the investigation officer in addition to the dead body. It is true that PW9 replied in his cross examination that no one was in the -:35:- custody of the police or had been apprehended by the public but this fact does not come to the aid of Sheoraj accused to doubt his apprehension at the spot, when PW10 Vijay, an independent witness, has lent full corroboration to the version of prosecution regarding his arrest at the spot immediately after HC Kanwal Singh followed him, female accused,namely, Saroj and the two children, and recovered the dead body. Name of Sheoraj accused, as noticed above, was recorded even in the statement of HC Kanwal Singh sent from the Railway Level crossing at 7.40 a.m. During investigation, rough site plan Ex. PW19/C was prepared depicting the place of recovery of the dead body from near the Railway Level Crossing. According to PW19 Inspector Manohar, he prepared rough site plan. PW12 HC Kanwal Singh also deposed about preparation of site plan by the Inspector at his instance. Site plan Ex. PW19/A depicts the place from where the dead body was recovered, and as such, lends corroboration to the prosecution version regarding recovery of dead body from near the Railway Level Crossing. Memo Ex. PW14/A regarding seizure of the dead body bears attestation of SI Ishwar Singh. Contents of this recovery memo also lend -:36:- corroboration to the version of prosecution regarding seizure of the dead body.
(c) Making of Disclosure statement by Sheoraj accused and recovery of dupatta stated to have been used in strangulating Raghubir Singh (since deceased), from the house of the deceased on the same day i.e. 31.07.2005.
Learned defence counsel contended that as on 31.07.2005, it was not known to the police as to whose dead body it was and this fact creates doubt in the version of prosecution regarding recovery of dead body of Raghubir Singh or making of any disclosure by Sheoraj accused.
It is true that in his report Ex. PW9/A, In-charge Mobile Crime Team mentioned that it was dead body of a unknown male and this fact also finds mentioned in recovery memo Ex. PW14/A. Ex. PW10/D is the request sent by Inspector Manohar Singh for postmortem examination. Endorsement made by the doctor on this request would reveal that dead body was received in the mortuary on 31.07.2005 at 10.05 p.m. whereas request for postmortem examination was received on 01.08.2005 at 3 p.m. It has appeared in the statement of PW19 Inspector Manohar Singh -:37:- that efforts were made to get the dead body identified but it could not be identified and that it was sent to mortuary for its preservation. There is nothing in the statement of PW19 as to at what time the dead body was removed from the spot to the mortuary. But he stated in his cross examination to have remained near the Railway Level crossing till 11.30 a.m. Ex.PW6/A and Ex. PW7/A are the statements made by Rohtash, brother of the deceased and Dharampal, nephew of the deceased, respectively, which reveal that they identified the dead body as that of Raghubir Singh on 01.08.2005 and that too in the mortuary. Ex. PW6/B is an application addressed by several persons to the SHO regarding identification of dead body of Raghubir Singh. All this goes to show that IO took precaution for due identification of dead body, not fully relying only on the disclosure statement of Sheoraj accused.
Disclosure statement Ex.PW18/A is stated to have been made by Sheoraj accused on 31.07.2005 in presence of Head Constable Saheb Singh.
PW18 HC Saheb Singh has deposed about making of disclosure statement by Sheoraj accused at the police station where he was interrogated. Even in his cross -:38:- examination, he deposed that Sheoraj accused made disclosure statement at the police station. PW19 Inspector Manohar Singh was not cross examined on the point as to where Sheoraj accused made disclosure statement.
From the material available on record, it appears that Sheoraj accused made disclosure statement after dispatch of the dead body from near the Railway Level Crossing to the mortuary.
Recovery of Dupatta and other items:
Case of prosecution is that Sheoraj accused made disclosure statement Ex. PW18/A and offered to get recovered dupatta used in strangulating Raghubir from the house of said Raghubir situated in Swatantra Nagar, and it was thereafter that Sheoraj accused led the police party to house of Raghubir situated in Swatantra Nagar, pointed out Red colour dupatta lying on a cot stating that it was used in stangulating Raghubir. He further deposed that dupatta was turned into a parcel, sealed with the seal bearing impression "MS" and seized vide memo Ex. PW18/B. So far as recovery of dupatta is concerned, it is significant to note that although it is said to have been -:39:- recovered from the house of Raghubir Singh (since deceased)-husband of Saroj accused-, the Investigating Officer did not associate any witness from the public. Although no witness from the public was accompanying the police party at the time they reached the house of Raghubir Singh and Saroj situated in Swatantar Nagar, Delhi, in the given circumstances, in order to comply with the provisions of Section 100(4) Cr.PC, the Investigating Officer could associate someone from the locality of Swatantar Nagar. But absence of corroboration from independent source calls for strict scrutiny of prosecution witnesses. It has appeared in evidence that Saroj and Raghubir Singh started living as tenants in the said house 2/3 days prior to the present occurrence. The Investigating Officer should have joined landlord of the building in the investigation to find out as to since when this house was taken on rent and by whom. Although, there is nothing on record to suggest that the Investigating Officer took any such step, there is no reason to doubt recovery of dupatta from the said house, when police came to know about the place of recovery of dupatta Ex. PW18/6 only from Sheoraj accused and there is no material on record to suggest that police knew about this place prior -:40:- thereto.
From the above discussion, I do not find merit in the contention of learned defence counsel that prosecution has failed to establish recovery of dupatta from the house situated in Swatantar Nagar, Delhi, at the instance of Sheoraj accused.
(d) Recovery of Election I-cards, ration card and copy of complaint made by Saroj accused, from the house of Raghubir accused (since deceased) at the instance of Sheoraj accused on the same day i.e. 31.07.2005.
Case of prosecution is that not only dupatta Ex. PW18/6 was recovered at the instance of Sheoraj accused, three election I-cards, one ration card and one copy of complaint made by Saroj accused against her husband Raghubir, were recovered from a bag lying in the same room. In this regard, there are statements of PW18 HC Saheb Singh and PW19 Inspector Manohar Singh. Both of them have proved the election I-cards, ration card and copy of the application Ex. PW18/1 to 5 seized vide recovery memo Ex. PW18/B. Recovery memo Ex. PW18/B is dated 31.07.2005. It bears attestation of Head Constable Saheb Singh. The -:41:- identity card Ex. PW18/1 is of Sri Niwas (since proclaimed offender), resident of Village Nizampur, Budhana, District- Muzaffar Nagar. The other identity card Ex. PW18/3 is of Somwati, resident of Mohalla- Nizampur, Mansurpur, Muzaffar Nagar. There is nothing to suggest that police had the opportunity to fabricate recovery of these two identity cards of the persons residents of District Muzaffar Nagar. Identity card Ex. PW18/2 is of Raghubir Singh (since deceased). Copy of complaint Ex. PW18/5 is purported to have been sent to DCP, Guhana, (Haryana), by Saroj (accused) levelling allegations against her husband Raghubir and her brother in law Rohtash, with a prayer for taking action against them. The application is dated 17.07.2003. Nothing has been brought on record to suggest fabrication of this application got typed in July 2003.
In view of the recoveries of the identity cards, the copy of application and ration card Ex.PW18/4 i.e. of the family of Raghubir (since deceased), this court does not find any merit in the contention of learned defence counsel that recovery of dupatta Ex.PW18/6 has been fabricated. Motive It is well settled that motive for commission of a -:42:- crime lies locked in the mind of the culprit. Once it stands established that PW10 and PW12 witnessed both the accused present in court taking away the dead body contained in a bundle, it was for these accused to explain as to under what circumstances they were carrying the dead body. It was for Sheoraj accused to explain as to how he happened to reach near the railway level crossing in the company of Saroj with a bundle carrying the dead body of her husband. At the same time, it was for Saroj accused to explain as to how the dead body of her husband was being carried in the bundle. However, Saroj has failed to put forth any explanation in this regard. It is true that during investigation none of the children of Smt. Saroj and Raughbir (since deceased) was joined in the investigation but the investigating officer has come forward with the explanation that when he interrogated Saroj accused about her children, she deposed that she had left her children at the house of her relative at Halalpur and that although he tried to locate them, none of them could be traced out. If the investigating officer did not join the children of Saroj, she could examine anyone of them in defence to show her bonafides and innocence. However, when she too has not cared and dared to examine -:43:- any of her children, no adverse inference can be drawn against the prosecution for want of proof of motive for her in committing the crime.
(e) Smt. Saroj accused remained absconding and was arrested on 02.08.2005 on the pointing out of the complainant- HC Kanwal Singh from railway station Narela.
Case of the prosecution is that Smt. Sudesh made good her escape from near the railway lever crossing on 31/07/2005 when HC Kanwal Singh was busy in checking the bundle, brought down from her head and that she was apprehended on 02/08/2005.
In her statement under Section 313 Cr.PC she has simply pleaded that she was picked up from the house of her daughter and then falsely implicated in this case. But in this regard, she has not brought on record even an iota of evidence. It is not case of defence that Raghubir Singh, husband of Saroj, was missing from the house or that his dead body was recovered from a place other than the railway level crossing. Prosecution has led cogent and convincing evidence that she was apprehended from railway station -:44:- Narela on 2.8.2005 when identified by HC Kanwal Singh. Statements of the prosecution witnesses in this regard are very much consistent. Had HC Kanwal Singh not seen her carrying the bundle containing the dead body, how could he identify her at railway station Narela. Then she could not be arrested at the instance of HC Kanwal Singh. In that eventuality, arrest memo Ex.PW12/B would not have been bearing the attestation of HC Kanwal Singh and Ct. Sahab Singh.
In view of the above discussion, this court comes to the conclusion that prosecution has fully established the circumstances that Saroj accused was seen in the company of her co accused on 31.7.2005 at about 5 a.m, near the railway level crossing and that she was arrested on 2.8.2005 at the pointing out of HC Kanwal Singh. Since she fled away from the railway level crossing and remained absconding, her conduct is a pointer to her involvement in murder of her husband.
Conclusion In view of the above discussion, this court comes to the conclusion that prosecution has fully established on -:45:- record:
i. that Saroj and Sheoraj accused were seen moving with the dead body contained in a bundle, near the railway level crossing Bakner on 31/07/2005 at about 05:15 a.m.;
ii. that dead body of Raghubir Singh - husband of Saroj accused was recovered from a bundle; iii. that Sheoraj accused was arrested from near the railway level crossing whereas Saroj accused made good her escape and she was arrested on 02/08/2005 at the pointing out of Head Ct. Kanwal Singh; iv. that Sheoraj accused made disclosure statement on the same day i.e. 31/07/2005 and got recovered dupatta Ex.PW18/6 from the house of Raghubir and Saroj in the area of Swatantra Nagar, Delhi;
v. that in the opinion of the doctor strangulation of Raghubir Singh could be possible with the dupatta produced before him or with a dupatta like this; vi. that there were six injuries observed on the dead body which were result of blunt force impact and in the opinion of the doctor the cause of death of Raghubir was ante mortem strangulation; and -:46:- vii. that recoveries of three identity cards, one ration card and one copy of complaint by Smt. Saroj to the police against her husband and brother in law were made in pursuance of disclosure statement of Sheoraj accused from the house of Raghubir (since deceased) in Swatantra Nagar.
In view of the above duly proved circumstantial evidence this court comes to the conclusion that the circumstances established on record form a complete chain of evidence as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances proved on record are of exclusive nature, consistent only with the hypothesis of the guilt of the accused persons and conclusively lead to the irresistible conclusion that Raghubir Singh was murdered by them in furtherance of their common intention and further that they attempted to conceal the dead body of Raghubir Singh with intent to screen themselves from legal punishment.
In view of the above findings, Sheoraj and Saroj accused are held guilty for the offences u/s 302 and 201 IPC both read with Section 34 IPC and convicted thereunder. However, in absence of any direct evidence of -:47:- criminal conspiracy between the accused persons, both of them are acquitted of the offence U/s. 120B IPC.
Let the convicts be heard on the point of sentence.
Announced in open court. (NARINDER KUMAR) Dated: 11th of January, 2008 ADDL SESSIONS JUDGE FAST TRACK COURT ROHINI: DELHI 11/01/2008 -:48:- IN THE COURT OF SH. NARINDER KUMAR ADDL. SESSIONS JUDGE: FAST TRACK COURTS ROHINI:DELHI SC No. 5/2 dated 02.01.2007 Date of Decision: 11th of January, 2008. State Versus
1. Sheoraj Son of Mam Chand R/o Village- Bajdhara Tehsil Budhana District-Mujaffar Nagar (U.P. )
2. Saroj Wife of Late Raghubir Singh R/o Village-Dodawa PS- Gohana FIR No. 372/05 PS- Narela U/s.- 302 r.w. Section 34 IPC & 201 read with Section 34 IPC ORDER ON SENTENCE 11/01/2008 Present. Both the Convicts in J.C. I have heard the convicts on the point of sentence. Both of them have prayed for leniency. Sheoraj accused submits that he is having a daughter of marriageable age.
Keeping in view the accusation established on record against the convicts that Raghubir (since deceased- -:49:- husband of Saroj accused) was murdered by them in furtherance of their common intention and thereafter they tried to conceal the dead body with intent to screen themselves from legal imprisonment but the dead body was recovered near the railway level crossing, I hereby sentence the convicts to imprisonment for life and to pay fine of Rs.5000/- (five thousand) each or in default of payment of fine, they shall undergo rigorous imprisonment for one month each for the offence u/s 302 IPC read with Section 34 IPC. They are also sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1000/- (one thousand) each or in default of payment of fine, they shall further undergo rigorous imprisonment for 10 days each for the offence U/s. 201 read with Section 34 IPC. Benefit of provisions of Section 428 CrPC is extended to convict. Both the substantive sentences of imprisonment shall run concurrently.
Copy of this order as well as of judgment be given free of cost to convicts.
File be consigned to record room u/s. 299 CrPC as one of the accused,namely, Sri Niwas has been declared proclaimed offender.
Announced in open court. (NARINDER KUMAR) Dated: 11th of January, 2008 ADDL SESSIONS JUDGE FAST TRACK COURT ROHINI: DELHI -:50:-