Delhi District Court
State vs . Umakant @ Anil Kumar & Anr. on 28 November, 2017
-1-
IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE02, NORTH
ROHINI COURTS, DELHI
STATE CASE No................................................ 57756/16
FIR No. 122/12
PS South Rohini
U/s: 302/201/34 IPC
State
Versus
1.Umakant @ Anil Kumar S/o Sh. Bhuneshwar, R/o H. No. 189, Pkt11, Sector21, Rohini, Delhi and H. No. D4/136, Sultan Puri, Delhi
2. Sumit S/o Sh. Kishore Kumar R/o A106, JJ Colony, Wazirpur, Delhi Date of institution : 08.10.2012 Judgment reserved on : 22.11.2017 Judgment delivered on : 28.11.2017 ORDER/JUDGMENT: The accused Umakant @ Anil Kumar is convicted for the offence(s) u/s 302/201/34 IPC.
The accused Sumit is convicted for the offence(s) u/S. 201/34 IPC.
J U D G M E N T (herein after for the sake of brevity accused Umakant @ Anil Kumar is being referred to as A1 and accused Sumit is being referred to as A2).
SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 1 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-2-1. Brief facts as stated in the chargesheet are as under:
That on receipt of DD No. 27A on 19.06.2012 SI Manoj along with Constable Pushpender reached the spot i.e. H. No. 788, Pocket6, Sector2, Rohini, where many public persons had gathered, additional SHO Anil Kumar was also found present there alongwith the staff. On inquiries it was found that the blood was everywhere in the flat no. 797, Pocket6, Sector2, Rohini and foul smell was also coming from there, at the spot, public person Shravan met the said SI Manoj who made the following statement to him:
"That he was residing at H. No. 800, Pocket6, Sector2, Rohini, on 19.06.2012, at around 11:05 pm, he was parking his scooty on the ground floor as he was residing on the first floor.
Opposite to his house, one A1 was residing alongwith his wife Rachna. That the said A1 alongwith his friend were dragging one red colour bag from the stairs, the blood was oozing out from the said bag and it appeared that somebody was inside the said bag, foul smell was also coming from the bag. Both the said persons were wearing gloves. Thereafter, they put the bag into Alto car no. DL8CQ8177 and went away.
Thereafter, he went to the said flat no. 797, which SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 2 of 51 State Vs. Umakant @ Anil Kumar & Anr.-3-
was open. Inside the flat there was blood and foul smell was also coming. He had strong suspicion that A1 alongwith his companion had murdered Rachna and after killing her he was in the process of disposing of her dead body. He could identify both of them."
Thereafter, SI Manoj Kumar wrote a rukka and sent Constable Pushpender to the police station for the registration of FIR. On the said rukka, FIR u/s 302/201/34 IPC was registered at PS South Rohini.
In the meanwhile, crime team also reached the spot, who carried out the spot inspection. During investigations, the the father of the deceased as well as husband of the deceased were called to the spot. The crime team photographed the spot, also took other incriminating evidence into possession from the spot including the sample of earth control. All of them were seized separately and converted into pulandas.
At around the said time, complainant pointed out towards the accused who was coming from the street, as a person who was residing in H. No. 797, Pocket6, Sector2, Rohini whom he had seen dragging the bag oozing with blood and which was having foul smell. On seeing the police party, the said person tried to run away but he was caught and made his disclosure statement to the police that he had committed the murder of Gyan Devi @ Rachna who was residing with him in live in relationship and that she was SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 3 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-4-residing separately from her husband, but she was forcing him to take divorce from his wife and to marry her.
Pursuant to his disclosure statement, accused disclosed that he had purchased the bag and gloves from the Mangol Puri market and had taken assistance in disposing of the dead body of his friend A2. Thereafter, he lead the police party to G. T. Road, Rasoi Village bus stand, where near the road one half burnt dead body was lying which he pointed out to be that of Gyan Devi @ Rachna. Near the dead body two gloves were also lying. The same were seized. The IO prepared the site plan and also informed the local police officials of PS Kundli, Haryana. The accused later on also pointed out towards the Alto car in which he had taken the dead body for disposal. The crime team also reached there. The scene was photographed. The relevant samples were seized of the said scene of spot.
Thereafter, accused lead the police party to a bag shop at Mangol Puri and also to a chemist shop from where he had allegedly purchased the bag and gloves respectively.
At same time, on the night of 19/20.06.2012, at around 3:00 am, FSL expert also examined the first spot and lifted the blood stains from the floor as well as mattresses and bed. They also lifted the blood stains from the car. All of them were seized and sealed and converted into pulandas.
The other accused was also arrested. Further the other accused A2 also disclosed that the petrol for burning the dead SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 4 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-5-body was purchased from the petrol pump Sector5, Rohini. Accused persons refused to undergo TIP despite warning that it may go against him during the trial.
After completion of investigations, chargesheet u/s 302/201/34 IPC was filed in the court of Ld. MM.
2. On committal of the case to the Court of Sessions, vide detailed order dated 13.02.2013, a charge u/s 302/201/34 IPC was found to be made out against accused Umakant, whereas the charge u/s 201/34 was made out against the accused A2. The formal charges as above were framed on 19.02.2013 to which both of them pleaded not guilty and claimed trial.
3. Thereafter, prosecution in support of its case have examined 27 witnesses, PW1 is Balbir Singh, the father of the deceased who has deposed regarding the fact that his daughter Gyan Devi @ Rachna was having live in relationship with accused A1 and she was living with him.
PW2 is Banarsi Das, the husband of the deceased. He has also deposed that after marriage there were disputes with him and his wife Gyan Devi @ Rachna and she started living with accused A1 in live in relationship.
PW3 is Asha Rani, the owner of H. No. 797, Pocket6, Sector2, Rohini where A1 was living on rent. She has also proved the rent agreement Ex. PW3/A executed between her and A1 and police verification form Ex. PW3/B. SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 5 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-6-PW4 is Smt. Dharam Devi, the mother of the deceased who had given her blood sample in BSA Hospital on 13.09.2012 for DNA profiling.
PW5 is Shravan, the star witness of the prosecution who had allegedly seen the accused A1 and A2 dragging the bag from which blood was oozing out on 19.06.2012 at 11:00 pm, as he was the neighbour of the said accused A1 and he also saw A1 & A2 putting the said bag into a Alto car bearing no. DL8CQ8177. He also observed foul smell coming from the flat of the accused A1.
PW6 is Munna Kumar Sinha, another neighbour of accused A1 who on 19.06.2012 had come out from his house after hearing commotion from the street. He found PW5 in the street who told him that he had seen accused A1 putting the red bag into silver colour Alto car. He also observed foul smell. He made a call at 100 number from his mobile.
PW7 is ASI Surender Singh who was posted at PS Kundli, Sonipat, Haryana on 20.06.2012 who had received DD No. 4A from Inspector Jai Prakash, SHO PS South Rohini that at the bus stop of Rasoi, accused A1 @ Anil S/o Bhuneshwar Prasad R/o H. No. 189, Pocket11, Sector 21, Rohini had pointed out the dead body of Rachna Sharma W/o Banarsi Dass. Thereafter, he went to the said spot and in his presence the dead body was identified by the relatives of the deceased and the relevant exhibits were seized. He also prepared the inquest proceedings and shifted the dead body to Civil Hospital, Sonipat from there it was shifted to PGI, Rohtak, where the postmortem on the dead body of the deceased was conducted and the relevant exhibits were SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 6 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-7-handed over to him after conducting the postmortem.
PW8 is Vinod Kumar, the photographer who has proved two photographs Ex. PW8/A and Ex. PW8/B clicked by him in his studio on 30.01.2012 of the accused A1 and deceased Gyan Devi @ Rachna. The photocopy of the relevant bill is Ex. PW8/C. PW9 is Sh. V. Shankar Naraynan, SSO, FSL, Rohini, who on 20.06.2012, at the request of the IO reached the crime scene and also inspected the Alto car bearing no. DL8CQ8177. He also lifted the blood stains from the floor and mattresses and also from the car and its seats which were also seized for forensic examination.
PW10 is lady Constable Ritu who has deposed that on 19.07.2012 she was on duty at PHQ and at about 11:21 pm, she received one PCR call from mobile no. 9817616881 and the caller had informed that H. No. 6/788, Pocket6, Sector2, Rohini near Bata showroom, DL8CQ 8177 silver Alto "Do admi hai red bag me dead body ho sakti." She filled this information in PCR form on computer. The said form is Ex. PW10/A. PW11 is HC Rajesh Kumar who has stated that on 19.06.2012, he was posted as DD writer at PS South Rohini at the relevant time. On that day, at about 11:20 pm, he received an information from control room that 'H. No. 6/788, Pocket6, Sector2, Rohini, near Bata showroom Alto silver colour ki car no. DL8CQ8177 red bag me dead body ho sakti hai". He recorded the message in daily dairy vide DD No. 27A and the facts of this information was brought to the knowledge of SI Manoj for necessary action.
SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 7 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-8-PW12 is Ct. Harkesh who has deposed that on 20.06.2012 the duty officer handed over the special report containing the copy of the FIR of the present case in order to deliver it to Ld. MM and other senior officers which he delivered at the residences of Ld. MM and the senior officers.
PW13 is Dr. Kaustuv Kiran who had taken the blood sample of Smt. Dharamwati, mother of the deceased at BSA Hospital on 13.09.2012 for DNA Profiling.
PW14 Ct. Ravinder. He has deposed that on 20.06.2012 he was posted at Mobile Crime Team as a photographer and on that day he alongwith the incharge went to flat no. 797, Pocket6, Sector2, Rohini where SI Manoj was also present and at the instructions of incharge Mobile Crime Team he took photographs of the spot. Negatives are Ex. PW14/A (colly) and the photographs are Ex. PW14/B1 to Ex. PW14/B5. On the same day, he went to G.T. Karnal Road, near Village Rasoi bus stand where a burnt dead body was lying. He took ten photographs of the spot and negatives of the same are Ex. PW14/C (colly) and photographs are Ex. PW14/D1 to Ex. PW14/D10.
PW15 is SI Ramesh Singh who has deposed that on 20.06.2012 he was posted as MHC (M), PS Kundli, Sonipat, Haryana. On that day, ASI Surender deposited nine sealed parcels with him. On 27.07.2012, he handed over four sealed parcels and other articles to SHO, PS South Rohini and made relevant entries in register no. 19.
PW16 is HC Mahavir who has deposed that on 20.06.2012 he was posted at PS Kundli and on that day at about 4:30 am (morning) he received a telephonic call from Inspector Jai Prakash that accused A1 SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 8 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-9-had pointed out to the dead body of a lady namely Rachna Sharma W/o Banarsi Das lying on DelhiPanipat Highway, and requested for sending the local police. He recorded this message in the DD register vide DD No.4 and ASI Surender and Ct. Hari Singh were deputed in this regard.
PW17 is D. S. Paliwal, SSA (Biology/DNA), FSL, Rohini. He has proved the DNA report after taking the blood samples of Dharamwati, natural mother of the deceased after comparing with the body remains of deceased Rachna and after DNA analysis he opined "The DNA Profiling (STR) analysis performed on the exhibits provided is sufficient to conclude that the DNA profile generated from the source of exhibit 1 (blood sample gauze of Smt. Dharamwati, mother of deceased Rachna @ Gyan Devi) is biological mother of DNA profile generated from the source of exhibit 2 (teeth of deceased Rachna @ Gyan Devi." His detailed FSL report is Ex. PW17/A. PW18 is Kanwal Singh who has deposed that he was posted as duty officer/DD writer in PS South Rohini on 20.06.2012 and on the rukka brought by Ct. Pushpender sent by SI Manoj he registered the FIR. He also recorded DD No. 7A and 8A, both dated 20.06.2012.
PW19 is SI Manohar Lal, the Draftsman who has deposed that on 14.09.2012 at the instance of the IO he inspected the first spot i.e. flat no. 797, Pocket6, Sector2, Rohini and took rough notes. Thereafter, on the same day, he went to another spot i.e. near Rasoi Village, G.T. Karnal Road from where the dead body was recovered and prepared SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 9 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-10-the rough notes. The site plan of the place of incidence is Ex. PW19/A and that of the recovery of the dead body is Ex. PW19/B. PW20 is SI Manoj Dalal, the initial IO who first of all went to the spot on 19.06.2012 on receipt of DD No. 27A alongwith Ct. Pushpender, who carried out initial investigations including the preparation of rukka and in his presence the relevant exhibits were seized and A1 was arrested. Disclosure statement of A1 was made and recovery was affected near Rasoi Village, G. T. Karnal Road, Haryana, at instance of A1.
PW21 is retired SI Prem Singh who on 20.06.2012 was working as incharge Crime Team, Outer District who on receipt of relevant call reached the first spot i.e. the place of incidence and inspected the same and directed the photographs of the same be taken and thereafter on the same day at about 3:30 am he went to the spot of recovery of dead body near Rasoi Village, G. T. Road and directed the photographs of the same be also taken. His report is Ex. PW21/A. Thereafter, on the same day in the afternoon he alongwith his staff and fingerprint expert inspected the car no. DL8CQ8177 parked in front of C6/112, Sector 5, Rohini and in his presence photographs and chance prints were taken therefrom. His report is Ex. PW21/B. PW22 is Dr. Yogesh Kumar from the Department of Forensic Medicine. He has deposed that on 20.06.2012 he alongwith Dr. B. L. Sirohiwan, Professor of Forensic Medicine conducted postmortem examination on body of Gyan Devi @ Rachna and prepared detailed report Ex. PW22/A bearing his signatures at point A. The viscera was preserved for chemical analysis and histopathological examination.
SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 10 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-11-Thereafter, on 18.01.2013, on the application of the police and after receipt of the above reports, he gave subsequent opinion regarding the cause of death vide Ex. PW22/B. PW23 is Sh. Loveleen Kumar Katyal working in FSLH, Madhuban, Karnal. He has deposed that on 20.06.2012 two parcels of the present FIR were received from PS Kundli at Madhuban, Karnal. After examining those parcels, he made detailed report Ex. PW23/A. PW24 is Inspector Ravinder Singh Yadav, Senior Fingerprint expert who had received the scene of crime report negatives, photographs and lifts of the chance prints. He also received finger prints/palm prints slips of A2 S/o Sh. Kishore and that of A1 S/o Sh. Bhuneshwar, for the purpose of comparison of chance prints and furnishing expert opinion. He has proved his detailed report Ex. PW24/E with regard to above.
PW25 is Dr. Sonia Hasija who on 14.07.2017 was working as Resident in the Department of Pathology, PGI MS Rohtak, Haryana. She had received two charred pieces of skin. After examining the relevant skin samples, she gave her report Ex. PW25/A. PW26 is Ct. Pushpender who on receipt of DD NO. 27A on 19.06.2012 went to the spot alongwith the SI Manoj i.e. Flat NO. 797, Pocket6, Sector2, Rohini who had taken the rukka to the police station for the registration of FIR and who had assisted in the initial investigation of this case.
PW27 is Sh. Dheeraj Mor, Ld. MM who conducted the TIP proceedings qua accused A2 in which he refused to undergo TIP proceedings despite warning that same may go against him in the trial.
SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 11 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-12-He has proved the relevant exhibits of TIP proceedings as Ex. PW27/A to Ex. PW27/B. PW28 is IO Inspector Jai Prakash, who has deposed regarding the investigations as were carried out by him during the course of present case, he has also proved the relevant exhibits in his testimony.
4. Thereafter, statements of accused persons u/s 313 Cr.P.C. were recorded on 18.08.2017 in which the entire incriminating evidence appearing against A1 & A2 was put to them. The defence of the accused A1 is that he has been falsely implicated in this case. In his defence he stated as under:
"This is a false case. I am innocent being an employer I helped the deceased in order to get a flat on rent on my ID. I never lived with her in live in relationship. There was a dispute between deceased and her husband. I have been falsely implicated by the IO on the basis of the alleged rent agreement and police verification report. I have no connection with the alleged offence. I am happily married life and having two daughters and residing with them"
Whereas the defence of the other accused A2 was also of denial and he also stated that he had been falsely implicated in this case. In his defence he stated as under:
SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 12 of 51 State Vs. Umakant @ Anil Kumar & Anr.-13-
"This is a false case. I am innocent. I do not know co accused Uma Kant and deceased. Neither I met with accused Uma Kant and deceased nor I have any connection with both of them. First time I saw Uma Kant at police station South Rohini when I was got arrested by the police. I have no connection with the alleged offence and I have been falsely implicated in the present case".
5. Ld. Addl. PP for the State has argued that the present case is based upon circumstantial evidence, as there is no direct evidence in this case. The case of the prosecution is based upon the testimony of PW5 Sharavan who had lastly seen both the accused persons dragging a red colour bag from which the blood was oozing out, he has further stated that the accused A1 was residing opposite to his flat and he was previously acquainted with him. He has also argued that it has also been proved from the testimony of PW5 that deceased was residing in flat no. 797, pocket6, Rohini, along with the A1. This is also corroborated by the testimony of PW1, PW2 and that of PW6.
Therefore, Ld. Addl. PP for the State has argued that since A1 and deceased were residing together as husband and wife in live in relationship, once it is found that the deceased had died under mysterious circumstances then A1 was under a legal duty to explain the mysterious circumstances of her death, which have not been explained, SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 13 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-14-which shows the culpability of the accused. He has further argued that blood stains were found in the flat where the A1 was residing and thereafter A1 was arrested and pursuant to his disclosure statement recorded u/S. 27 of the Indian Evidence Act, he led the police party to the spot i.e. near Rasoi Village, G.T. Karnal Road where the dead body of deceased was recovered in half burnt condition, which fact could have only been in the exclusive knowledge of A1. The recovery of said half burnt dead body clearly establishes the culpability of A1. He has also argued that the identity of the dead body has been established from the testimony of PW1 and PW2, as also from the scientific evidence of DNA profile, as the DNA profile of the dead body matched with the DNA profile of her natural mother PW4. Therefore, the identity of the dead body has been clearly established. It is further argued that the post mortem report proved on the record also supports the prosecution story regarding the unnatural death as well as post mortem burning of the body of the deceased. He further submits that it has also been established that A2 along with A1 had reason to believe that the deceased had been murdered by A1 or had reasons to believe that such an offence had been committed, still A2 in conspiracy with A1 caused disappearance of the dead body and vital evidence pertaining to the present case in order to screem A1 from legal punishment. Therefore, the prosecution has been able to prove its case u/S. 302/201/34 IPC against both the accused persons. Therefore, he submits that the entire chain of circumstantial evidence leads to only one inference I.e. of the guilt of the accused persons.
SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 14 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-15-On the other hand, Ld. Counsel for A1 has argued that the entire chain of circumstantial evidence is not complete in this case, as lot of links in the prosecution story are missing, which supports the hypothesis regarding the innocence of the accused persons. He has further argued that the prosecution has miserably failed to prove the motive of the A1 to commit the crime in question. In the absence of the same, the first link in the prosecution story is itself missing which has not been explained. He further submits that prosecution has failed to explain non recovery of the red bag which A1 along with A2 was allegedly seen dragging by PW5 on the date of the incident or just prior thereto. He further submits that even the gloves which were allegedly used by both A1 and A2 at the time of commission of the offence, have not been recovered as the gloves allegedly shown to have been recovered does not contain any blood nor they were sent for forensic evaluation to corroborate that they were used for the commission of the offence. He has also argued that even the petrol cane was not recovered which as per the prosecution story was used to sprinkle the petrol on the dead body of deceased in order to burn her, rather he submits that FSL report Ex. PW23/A supports the defence version, as in the said report no flammable petroleum products like petrol, kerosene could be detected on the sample of hairs and pieces of burnt cloths of the deceased which also shows falsity in the prosecution story. He also submits that different versions regarding the arrest of accused have emerged during the trial as in the charge sheet the prosecution story was that A1 was arrested near his house on the night of 1920.06.2012, SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 15 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-16-whereas PW5 in his crossexamination has stated that he had identified A1 only in the morning hours in the police station which also shows that the prosecution story is false regarding the arrest, recording of disclosure statement and the recovery of dead body pursuant thereto. He has further argued that no public witness has been joined in any of the recoveries effected in this case which shows that the said recoveries are planted. Therefore, he submits that there are lot of doubts in the prosecution story the benefit of which should be given to the A1 and, therefore, he is liable to be acquitted. He has also relied upon following judgments :
i) Prem Singh Vs. State (Govt. of NCT of Delhi) CRL A 1728/2014, dated 08.12.2016;
ii) Pankaj Vs. State of Rajasthan Crl. Appeal No. 2135 of 2009, dated 09.09.2016;
iii) Harishchandra Ladaku Thange Vs. State of Maharashtra Appeal (Crl.) 624 of 2001.
The Ld. Counsel for A2 has argued that the prosecution has failed to prove its case against A2, as PW5 had stated that the name of A2 was told to him later on which is a hearsay piece of evidence which is not admissible. She has further argued that PW5 could not say from where A2 was arrested but he stated that he identified him in the police station. He was also crossexamined by Ld. Addl. PP for the State on this aspect which also diminishes the evidentiary value of his testimony. Therefore, the refusal of TIP by A2 seen in this regard does not warrant SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 16 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-17-any drawing of adverse inference.
She has further argued that even PW10 who is a witness of PCR who had recorded and received the PCR call has nowhere stated regarding the identity of the persons carrying the alleged red bag into the Alto car. She has further argued that the PW20 has stated that A1 had led the police party to a chemist shop at Rani Bagh from where he allegedly purchased the gloves, but the same was not identified by the said chemist. Even otherwise, such kind of gloves are freely available in the market. Further, the place from where the alleged gloves were recovered at the alleged instance of A2 i.e. Azadpur, same is a thickly populated area and no public witness was joined in the said recovery in violation of Section 100 (4) CrPC. She further submits that the pointing out memo of the place of occurrence is not admissible in evidence. She further submits that no call detail records of the mobile phones of A1 and A2 have been proved on record to prove their pre concert. Further, regarding the identification of A2, PW5 and PW20 have stated contradictory facts regarding the identification of A2 which also shows the falsity of the prosecution case and also leads to inference that A2 had been falsely implicated in this case. Therefore, she submits that prosecution has failed to prove its case u/S. 201/34 IPC against A2. As a consequence, he is also liable to be acquitted.
6. I have gone through the rival contentions.
7. In the present case, the prosecution is relying upon circumstantial SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 17 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-18-evidence only as there is no direct evidence in the present case. In the case of Mohmood Vs. State of U.P. (1976) 1 SCC 542, it has been held that "in a case dependent wholly on circumstantial evidence the court must be satisfied
(a) that the circumstances from which the inference of guilt is to be drawn, have been fully established by unimpeachable evidence beyond a shadow of doubt:
(b) that the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused; and
(c) that the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against him".
However, in case Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622, the Supreme; Court referred to and relied upon Hanumant Vs. State of Madhya Pradesh, 1952 SCR 1091 AIR 11952 SC 343 and stated the five golden principles constituting the Panchsheel of the proof of a case based on circumstantial evidence as follows:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that ....... the circumstances SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 18 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-19-concerned 'must or should' and knot 'may be' established. There is not only a grammatical but a legal distinction between may be proved' arid 'must be or should be proved'.....
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to the proved, and 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.
8. The following circumstances were pressed into service by the prosecution in support of its case.
a. That accused and deceased were living together in live in relationship.
b. That accused and deceased were living together lastly at House No. 797, PocketVI, Sector2, Rohini, Delhi.
SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 19 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-20-c. That on 19.06.2012, accused A1 along with his co accused A2 were seeing dragging a bag of red colour in the stairs by PW5 Sharvan (neighbour), blood was also oozing out from the said bag.
d. PW5 inspected the said flat and found blood in the same.
e. PW5 raised an alarm. PW6 informed the police by making a call at 100 number. PW6 also noticed foul smell in the street.
f. Police reached the spot and inspected the spot. Initial investigations were carried out and FIR was registered. Relevant specimen were also lifted from the spot.
g. That on the same night, accused A1 was arrested from the spot near his house immediately after the above incident narrated by PW5.
h. Accused A1 made disclosure statement, pursuant thereto he got recovered half burnt dead body of deceased Rachna from near Rasoi, Village G.T. Karnal Road in the jurisdiction of PS Kundli, Sonipat, Haryana which was identified by her relatives.
j. DNA profile established the identity of the dead body SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 20 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-21-which was also identified by her relatives.
k. The post mortem report strongly suggest post mortem burning of the dead body as well as her unnatural death.
l. That A1 gave vague and misleading information regarding the whereabouts of the deceased.
9. First of all, the circumstances (a) and (b) are taken up together as they are interconnected with each other. PW2 in his testimony has deposed that his daughter Gian Devi @ Rachna was married with Banarsi Dass. After marriage there were some disputes between her daughter and Banarsi Dass. Thereafter, his daughter started living with accused A1. In his crossexamination he had even stated that on 22.12.2011, he had gone to A1's rental house to drop his daughter at flat no. 797, PocketVI, Sector2, Rohini. Similarly PW2 Banarsi Dass has also deposed that he had married with Gian Devi @ Rachna and after marriage there were disputes between him and his wife and she started living with accused A1. PW3 also stated that accused A1 used to call the lady residing with him in the said house by the name of Rachna, but in the police verification form he disclosed her name as Deepmala. In view of the clear cut testimony of PW2, father of the victim and that of PW5 her spouse, wherein both of them have deposed categorically that victim was residing SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 21 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-22-along with the accused A1, which fact has not been diminished even after their crossexamination. In any case in the context of Indian Society, it is hard to imagine that any father or erstwhile husband would say on oath in the court of law that his daughter or wife outside the wedlock was residing with a stranger as a concubine. In fact, PW5 who is the landlady of the said house has also stated that accused A1 used to call the said lady by the name of Rachna which also corroborated that they were living together in the same house. Further this fact is corroborated by the testimony of PW8 Vinod Kumar who has proved two joint photographs of accused A1 and that of deceased Ex. PW8/A and Ex. PW8/B which were clicked in his studio on 30.01.2012 along with relevant bill. These photographs also corroborates the version of the prosecution that accused A1 @ and the deceased were living in live in relationship together as husband and wife. Further, the chance prints as per the testimony of PW24 which he had taken from the spot also shows that the some of the chance prints taken from the spot i.e. The house no. 797, Pocket VI, Sector2, Rohini matched with the left ring finger impression of the accused A1 i.e. Q7 regarding which nothing has come out in the crossexamination of PW24. In fact PW24 has not been chosen to be crossexamined by the Ld. Defence Counsel. PW1 has deposed in his crossexamination that he had gone with her daughter on 22.11.2011 at the rental house of A1 to drop her at flat no. 797, PocketVI, Sector2, Rohini. As discussed above, this fact SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 22 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-23-has been stated by this witness in his crossexamination to which there is no further crossexamination by Ld. Defence Counsel by confronting this witness that this fact was false. Further, PW3 the landlady of the said house no. 797, PocketVI, Sector2, Rohini has stated that she had given the said house on rent to the accused A1 vide rent agreement Ex. PW3/A for a period of 11 months and police verification form is also Ex. PW3/B. The aforesaid documents have not been assailed in the crossexamination of above witnesses, though, the Ld. Counsel for A1 made a feeble attempt during the course of arguments that the said rent agreement was not sufficiently stamped, therefore, was not admissible in evidence. The said argument is without any substance. Even if the said rent agreement is not sufficiently stamped, it can still be seen for collateral purposes i.e. for ascertaining the fact whether the said accused was residing in the flat in question as a tenant or in some other capacity. Even otherwise, the police verification form is Ex. PW3/B clears the picture in which PW3 has been shown as landlady and accused A1 has been shown as a tenant with respect to the same flat, as the said application was sent for police verification. Therefore, this document clearly corroborates this fact that accused was residing in the flat in question as husband and wife in live in relationship with each other. As discussed above, PW3 has also stated in crossexamination that the accused used to call the said lady who was living with him by the name of Rachna, but in the police SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 23 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-24-verification form, he had disclosed her name as Deep Mala. This also corroborates the fact regarding the joint residence of deceased and accused A1. Further, this testimony of the above witness is also supported by the testimony of PW5 Sharvan, the star witness of the prosecution as he has also deposed that the said accused A1 was residing in front of his house along with his wife Rachna. This fact has not been controverted in his crossexamination.
10. Secondly, the circumstances (c), (d) and (e) are taken up together as they are interconnected with each other. In this regard the testimony of PW5 is most relevant, who has deposed that on 19.06.2012 at about 11:00 PM, he was parking his scooty at the ground floor, where he was residing on the first floor and accused A1 was residing in front of his house along withhis wife Rachna. He saw him at that time along with the other accused whom he also identified in the court dragging a bag in the staircase. The blood was coming out from the bag and foul smell was also coming. He became suspicious that somebody was inside the bag and both the accused were also wearing gloves in their hands. They took the bag by dragging it into an Alto car no. DL8CQ8177 and left the place. Thereafter, he went to flat no. 797 and found the door of that flat open and found blood in that flat. Foul smell was also coming out from the said flat. He became suspicious. One public person called the police which also reached the spot and recorded his statement.
SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 24 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-25-The above said PW5 was subjected to crossexamination by Ld. Defence Counsel for A1. In his crossexamination, he has stated that he never heard any quarrel between the accused A1 and deceased Rachna. On 19.06.2012, he had seen accused A1 knocking the door of the rented flat at about 1112 noon. He had never seen accused A1 prior to 19.06.2012. from the above testimony of PW5 taken as a whole, it is apparent that PW5 had an opportunity to see the accused A1 in the afternoon of 19.06.2012 itself i.e. in the broad day light, when he had the opportunity to clearly see the face and other features of the body of the said accused. In any case, site plan Ex. PW19/A proved by draftsman who inspected the spot shows that the flat of PW5 is perpendicularly opposite to the flat, where the alleged incident took place and there is not much difference between the main door of the flat of PW5 and that of the flat no. 797, where the accused A1 was residing with the deceased in live in relationship. The distance between the two flats is very small and the stairs are just in front of both the flats. It is in fact the common portion of the stairs which is equally divided between the two flats i.e. flat no. 797 and flat no. 800. Therefore, the testimony of PW5 with regard to the identity of the accused A1 is clearly credible and rules out any testimonial error which may have crept in due to any defect in the observational sensitivity of the said witness. With regard to identity of A2 same reasoning would apply. Though, PW5 had not earlier seen A2 prior to seeing him with A1 on SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 25 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-26-the night of 19.06.2012, however as discussed above, PW5 had opportunity to observe both A1 and A2 from quite close quarters of his house, which was just opposite to the house of A1, therefore, chances of any observational error in his testimony are ruled out, further certain peculiar and strange facts get embedded in the memory of a person observing them from close quarter. Seeing in this context, the conduct of A2 in refusing to undergo Test Identification Parade Proceedings (TIP) also goes against A2. In any case, the testimony of PW5 in this regard is supported by the testimony of PW6 Munna Kumar Sinha, who also stated that on 19.06.2012 at about 11:20 PM, he along with his family members was taking meal and heard some noise outside his house and came outside and found one Sarwan i.e. PW5, his neighbour present in the gali. He told him that two persons had loaded a red colour big bag into silver colour Alto car and also told him that a foul smell was emitting from the said bag. Though this part of testimony of PW6 is hearsay. Therefore, same is not admissible. He also noticed foul smell in the gali. He informed the PCR at 100 number from his mobile no. 9811616881. He also stated that the number of the car was disclosed to him by Sarwan as DL8CQ8177. He has been crossexamined. In his crossexamination, he has stated that he had not told the police that foul smell was coming out of the car. In any case, testimony of PW6 corroborates the testimony of PW5, with regard to conduct of PW5 who immediately after seeing both the SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 26 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-27-accused persons dragging the said red colour bag from flat of A1, putting the same into the Alto car bearing above number, raised an alarm and informed the neighbourers, which shows the natural conduct of PW5 as any reasonable man observing such a peculiar incidence would not keep silent, but would raise an alarm. In any case, PW10 W/Ct. Ritu corroborates the testimony of PW5 and PW6 in this regard, as she has also deposed that on the relevant date, she was on duty at police control room and at about 11:21 PM, she received one PCR call from mobile no. 9817616881 and the caller informed that :
"H. No. 6/788, Pocket6, Sector2, Rohini near Bata Show Room, DL 8C Q 8177 Silver Alto "Do Aadmi Hai Red Bag Me Dead Body Ho Sakti".
She filled up the said information in the requisite form which is Ex. PW10/A. Nothing has come out in her crossexamination which could show that the said witness was not stating truth. In any case, the said call had been received by her while being on duty at police control room, which she reduced into writing in the relevant column. This call was made immediately after the alleged incident of dragging red colour bag by accused A1 and his coaccused A2 in front of the staircase of the house of PW5 also strongly supports and corroborates the testimony of PW5 that he had watched both the accused persons dragging the said red bag.
SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 27 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-28-Similarly, PW11 who was working as DD Writer on 19.06.2012 at PS South Rohini has also deposed and corroborated the version of PW10 that he received the said information from the control room, as reported above and recorded the said information in the DD Register vide DD No. 27A and brought this information to the knowledge of SI Manoj for necessary action. He has also proved the relevant DD No. 27A Ex. PW11/A in this regard, which also strongly corroborates the version of PW5 who raised an alarm after seeing the said incident and called the neighbourers including PW6 who made a PCR call from his mobile number which was attended by PW10 in Police Head Quarters who reduced the said information as stated above and passed on the said information to the local police station of South Rohini, wherein it was reduced into DD Register vide DD No. 27A. These spontaneous events shows that there was no time to fabricate any information either by the police officials or by PW5. From the aforesaid discussion the above circumstances have been conclusively established, on the contrary the defence has not lead any evidence on the record which diminishes the probative force of the prosecution evidence on these circumstance(s) as firstly, no defence evidence has been lead. Secondly the defence has failed to elicit anything from the testimony of aforesaid witnesses discussed above, which could help the case of the defence or supports the defence version.
SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 28 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-29-11. Now the circumstances (f) is being taken. In this regard the testimony of PW20 SI Manoj is relevant. He has deposed that on 19.06.2012, on receipt of DD No. 27A Ex. PW11/A, he along with Ct. Pushpender reached the spot i.e. Flat No. 797, Pocket6, Sector2, Rohini, where blood was found scattered everywhere including the stairs. He inspected the spot, public witness Sharavan met him and got his statement Ex.PW5/A recorded. He called the Crime Team to the spot. In the mean while SHO along with the staff also reached there. He prepared the rukka Ex. PW20/A and handed over the same to Ct. Pushpender for the registration of FIR. Further investigations were taken up by Inspector Jai Prakash who inspected the spot and prepared the site plan. The testimony of PW20 is corroborated on this aspect by the testimony of PW26 Ct. Pushpender who first of all reached the spot along with PW20. The testimony of PW28 Inspector Jai Prakash, the IO of this case converges with the testimony of above witnesses on this aspect. PW28 has also deposed that from the spot, blood stained earth was lifted and sealed in the plastic container, earth control was also lifted. The place where the blood stains were found is also corroborated by the FSL report Ex.PW28/E and B respectively, as the blood which was found inside the flat was found to be of human nature, thereby pinpointing the place of occurrence. Therefore, the circumstance (f) has been duly proved by the prosecution.
SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 29 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-30-12. Now the circumstance (g) is taken up. Regarding this circumstance, PW20, the initial IO has deposed that A1 was arrested vide arrest memo Ex. PW5/B and personal search memo Ex. PW5/C, both are having his signatures. At the same time, PW28 the main IO of this case had deposed that during the proceedings at the spot, complainant Sharavan Kumar had seen the A1 who was coming towards the place of occurrence, he was apprehended, interrogated and arrested vide arrest memo. The testimony of above witnesses with regard to the manner of arrest being carried out at the instance of PW5 is contrary to the testimony of PW5 who has deposed that in the morning he had received a call from the police station and he went there and he identified the A1 at the police station, who was arrested vide his arrest memo Ex. PW5/B. In his crossexamination, he has reiterated that he had not seen A1 at the spot on the intervening night of 19/20.06.2012. He also did not support the prosecution story despite being declared hostile on this aspect by the Ld. Public Prosecutor and crossexamined that the accused was arrested at about 2:00 am on the night of 19/20.06.2012. He struck to his stand that A1 was arrested in the morning hours.
The perusal of the arrest memo of A1 shows the time of arrest has been shown to be 2:10 am on the intervening night of 19/20.06.2012. Therefore, it appears that there is some difference in the manner of arrest of A1 as different versions have come on record as discussed above of PW5 and that of PW20 and PW28.
SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 30 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-31-However, in the present case, the manner of arrest of A1 is not important, as his identity was never in doubt, as it has already been established beyond doubt from the discussion made with regard to the circumstance(s) mentioned above. It has also been conclusively proved that he was residing in flat no. 797 in live in relationship with the deceased. Though there are some embellishments in the prosecution story regarding the manner of arrest of A1, but that in no way impinges upon the credibility of the prosecution story as a whole. It can still be said that the A1 was arrested immediately after the incident was reported to the police at around 11:20 pm and the A1 was arrested on the intervening night of 2:10 pm therefore, his arrest was made quite close to the first PCR call made by PW6 as per the alarm raised by PW5. Therefore, this circumstance has also been proved beyond any doubt by the prosecution.
13. Now the circumstance (h) is being taken up. Regarding this circumstance, again the testimonies of PW20 and PW28 are relevant. PW20 the initial IO has deposed that after the arrest of the accused A1, he made a disclosure statement Ex.PW20/D. Thereafter, A1 lead the police party including himself, crime team and other staff including father and husband of the deceased to G. T. Road, near Bus Stand, Rasoi Village and pointed out towards half burnt body of deceased and also pointed out towards the pair of gloves. The said gloves were taken into possession. The crime SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 31 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-32-team also inspected the spot. The local police of Haryana was called and dead body was handed over to them.
The testimony of PW28 converges with the testimony of PW20 on this aspect of making of disclosure statement and that of A1 leading the police party to the Rasoi Village, District Sonipat, Haryana pursuant whereto the half burnt dead body and one pair of surgical gloves were seized. The further investigations were handed over to police officials of PS Kundli.
The testimony of PW20 and PW28 on the recovery aspect is corroborated by the testimony of PW1 Balbir Singh, father of deceased, who has also stated so, that the A1 lead them to Sonipat near Bus Stand, Village Rasoi where he identified the dead body of his deceased daughter and joined the inquest proceedings. Nothing has been asked from him regarding this aspect. Same is the testimony of PW2 Banarsi Dass, husband of the deceased on this aspect. He had also not been asked anything about the recovery aspect.
The independence of the recovery proceedings is corroborated by the testimony of PW1 and PW2 as discussed above, besides that PW7 ASI Surender Singh of PS Kundli, District Sonipat has also deposed that on 20.06.2012 he was posted at the said PS and on that day DD no. 4A was marked to him which was an information received on telephone from Inspector Jai Prakash, SHO, PS South Rohini that on the Bus Stop of Rasoi, A1 had pointed out the dead SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 32 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-33-body of Rachna Sharma, W/o. Banarsi Dass. He has also proved the copy of said DD No. 4 which is Ex. PW7A recorded at 4:30 am. Thereafter he has deposed that he reached the said spot where he found Inspector Jai Prakash along with his staff and A1 and also found the dead body of deceased in partly burnt condition. The husband and father of the deceased were also present there. They identified the dead body. He also recorded their statements. The articles worn by the deceased i.e. some jewellery articles, ash, wire and one iron patti were sealed by him and he also prepared inquest proceedings and moved the body to Civil Hospital, Sonipat for conducting post mortem.
Thereafter, to PGI Rohtak where the post mortem was conducted on the dead body. Nothing has come out in the crossexamination of PW7. Rather accused persons have chosen not to crossexamine the said witness. The testimony of PW7 is corroborated by the testimony of PW15 SI Ramesh Singh who was working as MHC(M) at PS Kundli at the relevant time as he deposed that case property pertaining to the present case as deposed by PW7 was deposed by him in his malkhana and then was sent to police station South Rohini vide relevant entry dated 27.07.2012. From the above testimonies of PW7 and PW15 the prosecution version regarding the presence of A1, PW28 along with his staff at the spot on the intervening night of 19/20.6.2012 has been clearly proved as also the presence of independent witnesses PW1 and PW2.
SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 33 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-34-14. The Ld. Counsel for A1 has argued that no public witness was joined either at the time of making of disclosure statement nor at the time of recovery of alleged dead body, therefore, the entire recovery proceedings are vitiated. The said argument is without any substance, as it is not expected from the IO to somehow join public witnesses in the middle of the night, when the entire world is sleeping. Therefore, the non joining of public witnesses at the said late hours / early hours of the night / day are not expected taking into account the reluctance of public persons, to join any investigations at any point of time. In any case, the said recovery proceedings had been witnessed by PW1 and PW2 the relatives of the deceased which lends credence to the recovery proceedings, since the said recoveries as discussed above have been made pursuant to the disclosure statement made by the accused after his arrest. Same is relevant and admissible u/S. 27 of the Indian Evidence Act. As a consequence, the prosecution has also been able to prove this circumstance beyond any iota of doubt.
15. Now the circumstance (j) is being taken up. In this regard, the testimony of PW1 and PW2 is relevant. Both have deposed that they identified the dead body of deceased near Bus Stand, Village Rasoi, Sonipat. Both of them also joined the inquest proceedings carried out shortly afterwards by PW7. The PW1 and PW2 must have SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 34 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-35-identified the body of the deceased from the articles which were found on the dead body i.e. some jewellery articles. Since PW1 and PW2 would have seen those peculiar jewellery articles being worn by deceased as PW1 was the father of the deceased and PW2 was the husband of the deceased therefore, they were the best persons to identify the dead body of the deceased due to peculiarities of the jewellery articles and other features within their personal knowledge necessary for identification of deceased.
Further the identity of the dead body was established from the DNA profiling report Ex. PW17A which has been proved by FSL expert PW17, D.S. Paliwal who after comparison of the blood sample of the natural mother of the deceased Smt. Dharamwati whose blood samples were taken in BSA Hospital for comparison came to the conclusion that the DNA profiling (STR) analysis performed on the exhibits provided is sufficient to conclude that the DNA profile generated from the source of exhibit 1 (blood sample gauze of Smt. Dharamwati, mother of deceased Rachna @ Gyandevi) is biological mother of DNA profile generated from the source of exhibit 2 (teeth of deceased Rachna @ Gyandevi). The detailed FSL report is Ex. PW17/A which bears his signatures at point A. Genotype analysis of the Exhibit is Ex. PW17/B bears his signature at point A. the aforesaid witness has not been subjected to any crossexamination. In any case the chances of error in the DNA profile are next to impossible as they are generally 99.9% accurate. The error, if any SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 35 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-36-had to be pointed out by the defence who has chosen not to cross examine the witness. Therefore, the identity of the dead body has been clearly established as a consequence, this circumstance has also been clearly proved by the prosecution beyond any doubt.
16. Now the circumstances (k) is being taken up. Regarding this circumstance, the testimony of PW22 Dr. Yogesh Kumar is relevant who has deposed that on 20.06.2012, he was working as resident with Dr. B. L. Sirohiwal, Professor Forensic Medicine, Rohtak and they conducted the post mortem on the body of Gian Devi @ Rachna. After examination prepared a detailed report in this regard which is Ex. PW22/A. The same is also signed by him as well as Dr. Sirohiwal. The available viscera was preserved for chemical analysis and histopathological examination.
That on 18.01.2013 the police moved an application regarding the cause of death after perusal of the FSL report dated 24.09.2012. He opined that the cause of death in this case would have been constricting force around neck, where exact manner could not be ascertained due to nonavailability of intact skin consequent upon burns. Burns were postmortem in nature. His detailed opinion in this regard is Ex. PW22/B. In his crossexamination, after seeing the report Ex. PW22/B, he stated that he has mentioned therein that the exact manner could not be ascertained due to non availability of intact skin consequent upon burn.
SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 36 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-37-The Ld. Counsel for A1 has argued that this opinion supports the prosecution story that the deceased had not died of unnatural circumstances as even the post mortem report does not support such a finding. The said argument is without any substance as the post mortem report clearly proves that the deceased had been killed prior to the burning of the dead body, as in the post mortem report Ex. PW22/A it has been clearly opined that the burns were post mortem in nature, thereby implying that the body was burnt after the killing of the deceased, as other findings in the post mortem report also supports so, as during the examination of larynx, trachea and hyoid, following findings were made :
"Cooked up, tissues are not identifiable. Traces in upper part was cooked up, in the lower part it was easily separable and not having carbon soot particles. Hyoid bone was intact with left corna calcified and right not calcified."
The aforesaid findings i.e. not having any carbon soot particles in the wind pipe also supports the finding regarding the post mortem burning of the dead body. Since if a person is alive and is burnt then by respiration he will inhale some air particles containing soot which will be embeded in his wind pipe. Since carbon soot was not found this clearly supports post mortem burning of the dead body SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 37 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-38-i.e. the deceased was killed first and then burnt. Though the post mortem expert could not give the exact cause of death due to the non availability of intact skin around the neck area, however, he did opine that the cause of death in this case would have been constricting force around the neck though the exact manner could not be ascertained thereby implying that death of deceased took place because of unnatural causes with postmortem burning thereafter. Therefore, the post mortem report also clearly corroborates the prosecution story and prosecution has been able to prove this circumstances also beyond any sort of reasonable doubt.
17. Now the circumstance (l) is being taken up. Regarding this circumstance, testimony of PW1 and PW4 is relevant as it sheds light on the state of mind of A1 as also regarding the conduct of A1 at or around the time of incident. PW1 in his crossexamination has stated that on 19.06.2012 at about 10:00 am he received a call from A1 that deceased was not opening the door and her phone was also switched off and after two hours he received another call from A1 that they had met and were shopping at Chandni Chowk. Similarly, PW4 the mother of the deceased in her crossexamination has stated that she does not remember the exact date, but A1 had informed that he was in Ghaziabad and deceased was not opening the door of the room and he asked her to check what had happened. After two minutes he again called and told that he along with deceased were SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 38 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-39-shopping at Chandni Chowk. Though, ideally the IO should have proved the call detail records of the mobile phones of PW1, PW4 and that of A1 to prove this fact. However, these facts have not been stated by both the above witnesses in their examination in chief, but these were stated in their crossexamination in answer to the queries of the Ld. Counsel for A1 thereby ruling out any chances of fabrication and tutoring by the prosecution. This strange conduct on part of A1 blowing hot and cold at the same time i.e. at one time he was informing PW1 and PW4 that deceased had locked the room and was not opening the door and after two minutes / two hours he called to say that they were shopping at Chandni Chowk, shows that A1 was fabricating a story to somehow wriggle out of the situation. He was trying to fabricate the story best suiting to the situation that is why he was giving wavering versions with regard to the position of deceased on 19.06.2012 on the fateful day, when he was seen by PW5 dragging a red colour bag along with A2 just in front of his house.
18. It has been held in judgment Trimukh Maroti Kirkan v. State of Maharashtra, JT 2006 (9) SC 50 as under :
"Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence took place in the dwelling home where the SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 39 of 51 State Vs. Umakant @ Anil Kumar & Anr.-40-
husband also normally resided,m it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime..."
The aforesaid judgment is squarely applicable to the facts and circumstances of the present case as here also it has been proved that A1 was living in live in relationship with deceased and in the night of 19.06.2012 he was seen by PW5 along with A2 dragging one red colour bag from which blood was oozing out. It has also been proved that A1 was residing along with deceased in flat no. 797, Pocket 6, Sector2, Rohini as husband and wife. The accused in the present case has not furnished any explanation as to how the said deceased Rachna died under mysterious circumstances or how the accused lead the police party after his disclosure statement, to the spot where the half burnt dead body of the deceased was found. The only defence version of A1 in his statement u/S. 313 CrPC is that he never lived in live in relationship with deceased and he had helped the deceased to get a flat on rent on his ID which defence has been found to be false, in view of the circumstances discussed above in detail. He has also stated in his defence that there was a dispute between the deceased and her husband and the IO had falsely implicated the A1 on the basis of rent agreement and police verification. This defence has also been found to be false in view of SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 40 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-41-the circumstances discussed at length above.
19. During the course of arguments, the Ld. Defence Counsel for A1 argued that infact deceased committed suicide and when A1 discovered this fact, he brought down her dead body and the only mistake he did was not to inform the police. However, the body was not removed by him nor was burnt by him. This argument is without any substance as this defence has neither been taken in the statement u/S. 313 CrPC nor has been put to any of the prosecution witnesses during their crossexamination including the IO. Therefore, once the explanation furnished by A1 regarding the missing of his partner who was living in live in relationship with him is found to be false, this is a very strong circumstance against A1 to indicate that he was responsible for the crime for which he has been charged.
20. The Ld. Counsels for A1 and A2 have argued that neither the sellers of gloves or the red bag have been examined by the prosecution, nor the petrol pump attendants from where A2 allegedly procured petrol for burning the body of deceased have been examined which clearly shows the falsity in the prosecution story. In my view, the non examination of the said witnesses does not in any way impinges upon the probative force of the prosecution evidence, though, if the said witnesses would have been produced and had they deposed in favour of the prosecution such evidence would have SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 41 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-42-made the prosecution evidence even stronger.
The Ld. Counsel for A2 has also argued that the alleged recovery of two pair of gloves near the Azad Pur Flyover cannot be believed as no public witness was joined in the recovery despite the said place being very thickly populated. Therefore, there is no compliance of mandatory provision of Section 100(4) CrPC. No doubt if a public witness would have been joined in the said recovery, it would have lent to more assurance to the case of the prosecution. She has further argued that no blood was also found on the said gloves nor they were sent to FSL for forensic evaluation therefore, the prosecution case is doubtful qua A2. She has further argued that A2 was not known to PW5, prior to the incident. He had allegedly seen him for the first time on the night of 19.06.2012. Therefore, his identity has not been established. She further submits that A2 was shown to the PW5 in the police station that is why PW5 recognized him, the said recognition is no identification in the eyes of the law. She further submits that no call detail records of the mobile phones of A1 and A2 have been proved on the record to corroborate the prosecution story that they had disposed of the dead body of deceased in furtherance of their common intention.
21. The said arguments though attractive, have no force, as even bereft of recovery the prosecution case is credible. Even if for the sake of arguments the said recovery is discarded, even then the SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 42 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-43-identity of A1 and A2 has been clearly established from the testimony of PW5, who had seen both of them in the night of 19.06.2012 dragging a red colour bag in front of stairs of his house from which blood was also oozing out. As already discussed above as per the site plan Ex. PW19/A the flat of A1 is quite close to the flat of PW5 as doors of both of them open perpendicular to each other and the stairs leading to both the flats are common. Therefore, PW5 had occasion to see them both from very close distance. Therefore, there could not have been any testimonial error which may have crept in the observation of PW5 with regard to viewing of the said incident, who immediately raised an alarm, as a consequence thereto PW6 made a PCR call which information is also reflected in the PCR form Ex. PW10/A and in turn was recorded vide DD No. 27A Ex. PW11/A. In any case PW5 had no personal grudge against A2 or A1 as it has not been established that he had any personal axe to grind against any of them. In the absence of any such enmity why would he falsely implicate him in this case. Therefore, the identity of A2 has also been clearly established in this case. Regarding the absence of the call details which have not been proved on the record by the prosecution. No doubt the said piece of evidence if lead on the record would have lent more assurance to the prosecution story, however, there may be various explanations to the same, as A1 was having the car bearing no. DL8CQ8177. He may have contacted A2 either personally or through some land line number. Though SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 43 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-44-ideally IO should have filed and prove the CDRs of the mobile phone of both A1 and A2 to prove their connivance in the disappearance of the body / evidence pertaining to the death of deceased Rachna, but it is equally settled law that mere faulty investigation does not effect the credibility of the prosecution case, if it is otherwise trustworthy as a whole. As a general principle, it can be stated than an error illegality or defect in investigation cannot have any impact unless miscarriage of justice is brought about or serious prejudice is caused to accused as held in Union of India Vs. Prakash P. Hinduja AIR 2003 SC 2612. Further if the prosecution case is established by the evidence adduced, any failure or omission on the part of the IO cannot render the case of the prosecution doubtful as held in Amar Singh Vs. Balwinder Singh AIR 2003 SC 1164.
22. Regarding the non recovery of red colour bag on which the Ld. Defence Counsels are relying heavily, PW7 ASI Surinder Singh of PS Kundli has deposed that from the spot, where the half burnt body of the lady was found, he seized the articles worn by the deceased i.e. some jewellery articles, ash, wire and one iron patti which were converted into pulinda. PW15 SI Ramesh Chand who was working as MHC(M) at PS Kundli has deposed that the said articles seized by PW7 were deposited in the malkhana on 20.06.2012 and on 27.07.2012 same were handed over to the officials of PS South Rohini vide RC No. 105, dated 27.07.2012 and the relevant entries SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 44 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-45-were made in Register no. 19. He also stated that the same were belongings of the deceased and one iron patti and wire of burnt suit case. No crossexamination either of PW7 or PW15 has been carried out on this aspect. Therefore, it is apparent that the wire of burnt suit case may have also been found by PW7 at the spot which he seized. This meets the argument of the Ld. Defence Counsels regarding non recovery of red colour bag as it appears that the same was also burnt in the blaze along with the body in order to destroy the evidence.
23. Regarding the next argument of Ld. Counsel for A1 the prosecution has failed to prove the motive on part of A1 to kill and dispose of the dead body of deceased Rachna, in the absence of said motive being established the entire chain of circumstantial evidence to prove the guilt of the accused is not established or stands broken. The same leads to an inference that A1 is innocent and had been falsely implicated in this case. This argument of Ld. Counsel for A1 is also without any substance, as the absence of motive is of no consequence in the present case, it may be that the prosecution was not able to prove the motive of the crime, but it does not matter in the present case when the circumstantial evidence on the record is sufficient to prove beyond any reasonable doubt that it was A1 who had killed deceased Rachna and that it was A1 and no one else who intentionally killed her and he along with A2 tried to SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 45 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-46-cause the disappearance of the body of the deceased by burning it. In this regard I am supported by the following judgment State of Madhya Pradesh Vs. Dig Vijay Singh 1981 Cr.L.J. 1278. It has been further held in judgment Atley Vs. State of Uttar Pradesh AIR 1955 SC 807 that the proof of motive lends additional support to the finding of guilt. Its absence does not lead to contrary conclusion of acquittal.
24. Regarding the next contention of Ld. Counsel for A1 pertaining to FSL report Ex. PW23/A, wherein no flammable product like petrol, kerosene etc. could be detected on sample of hairs and pieces of burnt clothes of deceased. Since the body of deceased was found in highly charred condition, the temperature which is required to burn human body would be very high running into several hundred degree centigrades. Therefore, evaporation of these highly combustible liquids due to high grade heat cannot be ruled out. This also does not support the case of defence at all.
25. Regarding the offence under Section 201 IPC, the prosecution has to prove the following ingredients: (1) An offence has been committed;
(2) The accused knew of or had reason to believe that such offence has been committed;
SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 46 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-47-(3) The accused caused disappearance of the evidence thereof;
(4) The accused did so with intention to screen the offender from legal punishment.
Further to invoke Section 34 IPC, it must be established that the criminal act was done by more than one person in furtherance of common intention of all. The essence of liability under Section 34 IPC is simultaneous conscious mind of persons participating in the criminal action to bring about a particular result. Minds regarding the sharing of common intention gets satisfied when overt act is established qua each accused. It has been held in judgment Shankerlal Kacharabhai and others Vs. State of Gujrat AIR 1965 SC 1260 as under :
"Criminal act mentioned in Section 34 IPC in respect of the concerted action of more than one person and if the same result was reached in furtherance of common intention each person is liable for the result as if he had done it himself."
From the aforesaid circumstantial evidence as discussed, the prosecution has been able to prove beyond any doubt that it was A1 along with A2 who caused the disappearance of the body or the evidence of killing of deceased Rachna in furtherance of their SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 47 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-48-common intention, knowing full well that she had been murdered and in order to screen A1 from legal punishment, A2 in furtherance of the said common intention took the body to Bus Stop, village Rasoi, Kundli, Sonipat, Haryana and thereafter burnt the said dead body of deceased Rachna in order to cause disappearance of the evidence of said killing. A2 also did so with the intention to screen himself from legal punishment, as also to screen A1 from legal punishment. By principle of agency both will be equally liable for acts of each other. Therefore, prosecution has been able to prove Section(s) 201/34 against both the accused persons i.e A1 and A2.
26. Now, it has to be seen, whether from the aforesaid circumstance(s), which have been established by the prosecution beyond any sort of doubt, these unerringly points towards the guilt of the accused persons and whether the circumstances taken collectively are incapable of explanation of any reasonable hypothesis, save that of guilt of the accused persons and whether the circumstances proved by the prosecution form a chain so complete, so 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 persons only, none else.
27. The circumstances already discussed above at length SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 48 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-49-cumulatively establish and support the hypothesis, that it was A1 but none else who had committed murder of deceased Rachna by strangulating her and thereafter burning her dead body consequent to her death, in which he was actively aided, abetted and helped in furtherance of their common intention by A2.
The defence version which is supported by no tangible or intangible evidence, does not in any way dilutes or scales down the probative force of the overwhelming nature of prosecution evidence which is almost touching the point of certainty.
28. From the aforesaid discussion, the prosecution has been able to establish the circumstances (a), (b), (c), (d), (e), (f), (g), (h), (j), (k) and (l) against the accused A1 beyond any sort of reasonable doubt. From the aforesaid chain of circumstantial evidence discussed above and failure of the accused A1 to give any plausible explanation, regarding the death of her live in partner Rachna from their common residence and thereafter leading the police party to the spot, where the dead body of deceased Rachna was found in half burnt condition pursuant to his disclosure statement cumulatively proves beyond any sort of reasonable doubt the culpability of the accused A1 in this case. The prosecution has also been able to prove beyond any doubt the culpability of A2 in disposing of the said body of the deceased after her death in active connivance with A1, despite knowing full well that deceased had been killed and the offence of murder had been SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 49 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-50-committed yet A2 helped A1 in causing the disappearance of the evidence thereof in order to screen A1 from legal punishment and thereby also screening himself from such legal punishment.
29. Applying the principle laid down in the judgment in Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 (Supra), and also the judgment of Hon'ble Supreme Court in Hanumant Vs. State of Madhya Pradesh, 1952 SCR 1091=AIR 1952 SC 343 (Supra), I am of the considered view, that it has been proved beyond any reasonable doubt by the prosecution, by unimpeachable evidence by aforesaid chain of circumstances as discussed above, which is so complete, which only leads to the conclusion, that it was only the A1, who had committed the murder of deceased Rachna and no one else and the circumstantial evidence lead on the record, is absolutely inconsistent and incompatible with the innocence of the A1 and there is no circumstance or the possibility that any one else might have committed the aforesaid ghastly act. Therefore, the circumstance(s) proved by the prosecution from a chain so complete, which leads only to the conclusion, regarding the culpability of the accused A1, regarding the murder of deceased Rachna. The circumstantial chain also leads to inference regarding the culpability of A1 and A2 for the offence(s) u/S. 201/34 IPC.
SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 50 of 51 State Vs. Umakant @ Anil Kumar & Anr.
-51-30. To Sum up :
Accused A1 (Umakant @ Anil Kumar) stands convicted u/S. 302/201/34 IPC, whereas accused A2 (Sumit) stands convicted u/S. 201/34 IPC.
31. To come up for hearing on point of sentence on 30.11.2017.
Announced in the open Court (Sanjeev Aggarwal) th on this day of 28 Nov. 2017. Addl. Sessions Judge02, North Rohini Courts, Delhi 28.11.2017 SC No. 57756/16, FIR No. 122/12, PS. South Rohini Page No. 51 of 51 State Vs. Umakant @ Anil Kumar & Anr.