Delhi District Court
State vs . Kamlesh Singh on 23 February, 2010
1 S/v Kamlesh Singh
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01/SOUTH
PATIALA HOUSE COURT
SESISONS CASE NO. 340/09/05
State Vs. Kamlesh Singh
S/o Sh. Bhajja Singh
R/o Village Nayagaon
PS Rajepur
District Farukhabad
FIR No. 147/05
Police Station Sangam Vihar
Under Section 302 IPC
Date of Institution 23/07/05
Dates when arguments
were heard 20/11/09, 01/12/09, 04/12/09, 05/12/09, 10/12/09,
11/12/09, 12/12/09, 16/12/09, 14/01/10, 19/01/10,
22/01/10, 23/01/10, 01/02/10 & 06/02/10
Date of Judgment 16/02/2010
JUDGMENT
The SHO police station of Sangam Vihar has challaned the accused to face trial for the commission of offence punishable under Section 302 IPC. The learned Metropolitan Magistrate after compliance of provisions under Section 207 Cr.PC. supplied the copies to the accused and committed the case to the Court of Session for his trial.
2 S/v Kamlesh Singh BRIEF FACTS The prosecution case, in brief, is that on 22.2.05 at 2.38 am DD No.59B was recorded on the basis of information received in police station Sangam Vihar that one person is lying injured in H.No.709, Sangam Vihar, Budh Bazar. The copy of DD No.59B was given to SI Harinder Singh who along with Ct. Virender Kumar and Ct. Dalchand went to the spot at H.No.709, Gali No.9, Sangam Vihar and at the first floor of the said house they found one dari (bed sheet), one shawl and one pillow with enough blood on it and they came to know the injured has already been taken to hospital in PCR van. Thereafter, SI Harinder Singh left the Ct. Virender at the spot for its proper care and went along with Ct. Dalchand to AIIMS hospital where he obtained the MLC of the injured Karu s/o Sukhram Singh. The injured was unconscious and unfit for statement as per opinion of the doctor concerned. SI Harinder Singh got the case registered, under Section 307 IPC and did not find any eye-witness there. He made request for crime team and photographer to visit the spot. In the meantime, duty constable in AIIMS hospital informed vide DD No.62B in the police station that injured has expired. Thereafter, the offence was converted from 307 to 302 IPC. The investigating crime team inspected the spot and 3 S/v Kamlesh Singh photographs were taken. The site plan was prepared by the investigating officer and samples were taken in the possession of police. The statements of witnesses were recorded. The post mortem of the victim was got conducted and post mortem report was obtained. Thereafter, accused was arrested whose disclosure statement was recored and at the instance of accused axe was got recovered by accused from small kitchen adjoining the room in question which was taken in the possession of police. The accused got recovered his blood stained shirt which he was wearing at the time of incident which was taken in the possession of police. On completion of investigation, accused was challaned for the offence under Section 302 IPC.
CHARGE AND PLEA OF THE ACCUSED Prima facie case for the commission of offence punishable under Section 302 IPC was found made out against the accused and charge accordingly was framed against him on 08.08.05 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE The statement of prosecution witnesses, in short, is given below to have a view of the evidence led by prosecution on record.
4 S/v Kamlesh Singh PW1 is Anil Kumar, who stated that on 21/22.2.05 in the night at about 2/2.30 am somebody knocked at his doors, he opened the doors and saw the woman standing there who stated that his brother-in-law is murdered by maternal uncle of Kusuma and he ran away along with son of Kusuma. The witness stated that he immediately wore the clothes and went to the house of his brother-in-law where he saw the crowd and the PCR van. On asking Kusuma, she informed that her maternal uncle Kamlesh after killing her husband Karu ran away with her son. The victim Karu was sent to hospital immediately. The witness stated that he also went to the hospital in three-wheeler scooter. After some time, Karu died in the hospital. He also stated that crime team came to the spot, the IO seized green, red, black and blue colour blood stained dari (bed sheet), one blood stained shawl, black and grey colour chadar and one blood stained pillow and kept it in gunny bag and sealed it with the seal of HS and seized it vide memo Ex.PW1/A. The IO with the help of hammer and chaini had broken the blood stained floor and took part of it in a pulanda and sealed it with the seal of HS and seized it vide memo Ex.PW1/B. IO also took one piece of floor in the pulanda and sealed it with the seal of HS and seized it vide memo Ex.PW1/C. PW2 is Jai Prakash, who stated that on 21/22.2.05 in night at about 5 S/v Kamlesh Singh 2 am,he heard the noise in the street and came out and saw crowd gathered there. The noise of 'thief thief'. On enquiry, he came to know one man who was in the house of Keshav Dev was murdered by the maternal uncle of his wife and he had also taken away the child. The telephone call was made at 100 number and police came. The victim was taken in PCR van to the hospital. He also went to the hospital. On 23/24.2.05 at about 1 O'clock, he heard the noise and found that the police had come to the house of Keshav where Karu was a tenant. The accused Kamlesh then present in the court was also with the police. The accused took the police team to the house of Keshav and in the small kitchen he gave one axe to the police. The accused Kamlesh informed the police that he killed Karu with this axe. The IO took the axe in a pulanda and seized it vide memo Ex.PW2/A. The pointing out memo Ex.PW2/B was prepared by the police at the instance of the accused.
PW3 is Dr. Arvind Kumar, Junior Resident, Department of FMT, AIIMS, New Delhi, he conducted the post mortem on the body of deceased Karu and found the following injuries on the body of the deceased:-
1. (i) A laceration of size 8.5 cms x .6 cms, margins irregular with hair and scalp tissue tags inside the wound which is present on the left side parietal area in coronal plane, lower end of the wound is 10 cms above 6 S/v Kamlesh Singh left tragus, sub scalp tissue showing extravassation of blood in 6 x 7 cms area. Wound is cranial cavity deep. Left parietal and temporal bone showing depressed fracture in an area of 8 x 5.5 cms, left side middle cranial fossa also found fractured. Subdural (about 100 ml) and epidural haemorrhage was seen. Left parieto temporal lobe lacerated in an area of 6 x 5 cms x 4 cms, intraparenchymal blood clots were also seen.
(ii) Lacerated wound of size 10.5 cms x 2.5 cms obliquely present over left temporal area of scalp, lower end of which is at the level of left ear's upper margin and upper end of wound is 7.5 cms above from the outer end of left eybrow. Subscalp extravassation of blood was seen in corresponding area.
2. A stab wound of size 3 x 1.5 x 4 cms, longitudinally present over left angle of mandible, margins slightly abraded directed downward, forward and medially with extravassation of blood in soft tissue, left mandibular angle having depressed fracture 2 cms longitudinally, cutting left carotid and jugular vessel.
3. An incised wound of size 5 x .3 cms subepidermal tissue deep placed in coronal plain over left shoulder.
He proved the post mortem report as Ex.PW3/A. He also stated that subsequently the weapon was produced before him by the IO for his 7 S/v Kamlesh Singh opinion and he gave the report is Ex.PW3/B and handed over weapon of offence and opinion to the IO along with the seal.
PW4 is Keshav Dev who stated that on intervening night of 21/22.2.05 he was inside his house. At about 2.00/2.15 AM he heard noise of dhum dhum on the stair case. He along with his son Rajesh Kumar woke up and came out. He saw accused Kamlesh then present in the court along with one child. His son caught hold of the accused at some distance. He also reached there. Accused inquired as to why he has been caught as the thief had gone to other side. Then they went towards the other side to see the thief. They could not find any thief and they returned to the house. A large crowd had gathered there. When they reached in the room of deceased Karu they found deceased Karu lying in pool of blood. His wife also present there. Wife of deceased Karu told them that her maternal uncle i.e accused present in the court had run away after killing Karu. Some one made telephone call to the police who reached at the spot and removed Karu to the hospital. In the morning they came to know that Karu had expired. Crime team and SHO reached at the spot. Police lifted one dari, one shawl, one chaddar and one takiya, blood stained, from the spot and seized there articles vide memo Ex PW1/A. Police also seized the blood stained earth vide memo Ex.PW1/B and earth control vide memo 8 S/v Kamlesh Singh Ex.PW1/C. In the intervening night of 23/24.2.05 police along with accused Kamlesh and child Shivam came to the house. The accused pointed out the spot of incident to the investigating officer vide memo Ex.PW2/B. As per disclosure statement of the accused he got recovered one kulhari from the small room which was used as kitchen. Investigating officer kept the kulhari in a pulanda and seized it vide memo Ex.PW2/A. Witness identified accused then present in the court and identified one dari, one shawl, one chaddar and one takiya as Ex P1 to P4. He also identified kulhari (axe) as Ex P5.
PW5 is Rajesh Kumar who stated that about a year back at about 2 AM he heard noise of dhum dhum in the stair case. He and his father woke up. He and his father came out of the room and saw accused Kamlesh was running by making noise of 'chor' 'chor'. Shivam aged about 11 or 12 years was also running along with accused Kamlesh. He and his father chased them. After some chase he and his father caught hold Kamlesh at some distance. Kamlesh told them that he was not the thief and the real thief had gone towards other side. They left accused and returned to their house . A large crowd had gathered there. When they reached up stairs they found that Karu deceased residing with accused has sustained injuries on his head. He was lying in a pool of blood. Wife of Karu was telling that her 9 S/v Kamlesh Singh maternal uncle Kamlesh had run away after killing Karu. Intimation was given to Anil Jija of Karu residing at some distance. PCR was informed who reached at the spot and shifted the Karu to the hospital. One police official remained present at the spot. Other police persons accompanied Karu to the hospital.
PW6 is constable Virender Kumar who remained at the spot as per direction of the investigating officer who had left from the spot along with constable Dal Chand to AIIMS where the injured was admitted.
PW7 is constable Dal Chand who stated that in the intervening night of 21-22/2/05 he accompanied Sub Inspector Harinder and constable Virender to house no. 709, Gali No. 9, L Ist, Sangam Vihar where they got information that injured has been shifted to hospital. They went to first floor of the house and found blood scattered over bed. Investigating officer directed constable Virender to guard the spot and he along with investigating officer Harinder went to AIIMS where they found injured Karu admitted. Investigating officer moved application regarding fitness of injured and doctor declared injured unfit for statement. Investigating officer prepared rukka over the true copy of DD and handed over to him for registration of the case. He went to police station and present case was registered. He came to the spot along with copy of FIR and original rukka 10 S/v Kamlesh Singh and handed over the same to investigating officer. SHO also came to the spot and further investigation was done by SHO.
PW8 is constable Dharampal Singh who stated that on 22/2/05 he was posted as photographer in the crime team and on that day he accompanied incharge crime team to house no. 709, Galil No. 9, L first Block Sangam Vihar. As per direction of the investigating officer and incharge crime he took five photographs he had brought the negatives Ex PW8/P1 to P5 and positives are proved as Ex PW8/P6 to P10.
PW9 is constable Vikas who was given up by learned Additional Public Prosecutor.
PW10 is constable Hawa Singh who is formal witness who took the pulandas of this case vide RC No. 149/21 from MHCM Sanga Vihar to FSL Rohini. After depositing the same he returned back to police station and handed over the receipt copy to MHCM. During his possession seals were not tampered with and were intact.
PW 11 is HC Ram Singh, who stated that he was working as MHCM on 27/4/05. On that day as per the direction of investigating officer, he handed over 07 sealed pulandas and one sample seal vide RC No. 149/21 to constable Hawa Singh for depositing the same in FSL Rohini. After depositing the same constable Hawa Singh returned to the police station 11 S/v Kamlesh Singh and handed over the receipt copy to him. During his possession the seals were not tampered and were intact.
PW12 is SI Harender, who corroborated with the statement of PW6 Ct. Virender Kumar and PW7 Ct. Dal Chand regarding going to the spot and then to the AIIMS hospital. He stated that he directed Ct. Virender to remain at the spot and he went to AIIMS along with Ct. Dal Chand where he found injured. The injured was declared unconscious. He prepared rukka over DD No.59B and sent the rukka through Ct. Dal Chand for registration of the case under Section 307 IPC. He proved his endorsement over DD as Ex.PW12/B. He stated that he reached the spot, after some time, SHO along with staff reached there, he was informed that injured had already expired at hospital. Thereafter, the investigation was taken over by SHO. The witness corroborated with the Statement of PW1 Anil Kumar regarding seizure of one blood stained dari, one chadar and one pillow vide seizure memo Ex.PW1/A, earth control from the spot vide memo Ex.PW1/C and collecting blood stained cemented floor vide memo Ex.PW1/D. He identified the case property i.e. dari as Ex.P1, shawl as Ex.P2, chadar as Ex.P3 and pillow as Ex.P4.
PW13 is Dr. Parvez, CMO, AIIMS, New Delhi, he examined deceased Karu and prepared his MLC Ex.PW13/A. 12 S/v Kamlesh Singh PW14 is HC Daya Ram, he was posted as HC in Police Station Sangam Vihar and was working as duty officer. He has proved the copy of FIR recorded by him as Ex.PW14/A. PW15 is SI R.S. Naruka, who stated that on 22.02.2005, he was posted as Incharge, Crime Team, South District. On that day, at the request of IO, he along with his staff reached at H.No. L-1st/709, Gali No.9, Sangam Vihar, New Delhi and inspected the spot from 8 am to 8.30 am. He prepared his report Ex.PW15/A. PW16 is SI Mahesh Kumar, Draftsman, Crime Branch, PHQ, who proved the scaled site plan of the place of incident as Ex.PW16/A. PW17 is Rajbir Singh, who is elder brother of deceased Karu and has identified the dead body of deceased at AIIMS mortuary vide memo Ex.PW17/A. PW18 is SI Ram Sahai, PCR, South West Zone, who stated that on 23.02.2005, he was posted as SI in Police Station, Sangam Vihar. On that day, he joined investigation of the case with SHO. He stated that they went to the hospital. The dead body was identified by brothers of deceased and after post mortem the dead body was handed over to them. After post mortem the doctor handed over to the IO two sealed parcels and one sample seal and IO seized the same vide memo Ex.PW18/A. In the 13 S/v Kamlesh Singh evening again, he joined investigation with IO and other police officers were also with them. IO received a secret information that accused would leave to his village from AV bus terminal. They went to Anand Vihar bus terminal. There they waited along with secret informer. IO requested some passengers and passersby to join the investigation. At about 9.30 pm, accused Kamlesh then present in the court was apprehended. One child aged about 10-12 years was with him. On enquiry, the child disclosed his name as Shivam. Accused was interrogated and he was arrested and his personal search was taken vide memo Ex.PW18/B. Accused was interrogated and his disclosure statement Ex.PW18/C was recorded. Accused led the police team to the spot and pointed out the place of incident. IO prepared pointing out memo Ex.PW2/B. Accused took the police team to a corner room of the house and got recovered one kulhari which he told the IO that he used the same for committing the crime. IO kept the same in pulanda, sealed it with the seal of JSS and seized vide memo Ex.PW2/A. Thereafter, the accused took the police team to the bushes in front of air force station Tughlakabad and got recovered a blood stained shirt and told IO that he was wearing the shirt at the time of crime. IO kept the shirt in pulanda, sealed it with the seal of JSS and seized it vide memo Ex.PW18/D. His statement was recorded by 14 S/v Kamlesh Singh IO. The witness identified kulhari as Ex.P5 and blood stained shirt as Ex.PW18/P1 to be seized from the accused.
PW19 is Rajpal Singh, who is given up by learned Additional Public Prosecutor for the State.
PW20 is SI K.P. Sah, who stated, in brief, that on 23.02.2005, he joined investigation with SHO and other staff. He corroborated with the statement of PW18 regarding the identification of deceased by his brother and handing over of two sealed parcels and sample seals by doctor which were seized by IO vide seizure memo Ex.PW18/A and then in the evening going with the IO to Anand Vihar Bus Terminal where at the instance of secret informer the accused was arrested and his personal search was conducted vide memo Ex.PW18/B and his disclosure statement vide memo Ex.PW18/C was recorded. It is also stated by PW20 that the boy was also present with the accused who disclosed his name as Shivam. Thereafter, they went to the house of brother of accused which is situated at Jagjeet Nagar. Thereafter, accused took the police team to spot before which the information regarding arrest of accused was given to his brother at Pushta New Usman Pur. On the request of the IO, the owner Keshav along with the neighbour Jai Prakash joined the investigation of the case. Thereafter, accused took the police team to the first floor of the house and pointed out 15 S/v Kamlesh Singh the spot where he had killed the deceased. IO prepared the pointing out memo Ex.PW2/B. The witness corroborated with the statement of PW2 regarding seizure of kulhari by police at the instance of accused vide memo Ex.PW2/A. He corroborated with the statement of PW18 regarding recovery of blood stained shirt which was found in polythene ExPW18/D. He identified the kulhari which was got recovered from the accused as Ex.P5 and blood stained shirt of the accused which was got recovered from the bushes at Tughlakabad as Ex.PW18/P1.
PW21 is HC Ram Lal, who stated, in brief, that in the intervening night of 21/22.02.2005, he was posted as incharge PCR Van Eagle E-55. On that night, at about 2.20 am, he received a call that someone has been injured in house no.709, Gali no.9 L Ist, Sangam Vihar, They immediately went there. He went to the spot and found a person having injuries in the room of the first floor of the house. He was unable to talk at that time. He was having injuries over his head and neck. They immediately shifted him to AIIMS hospital by the PCR Van.
PW22 is Kusuma, who stated, in brief, that on the intervening night of 21/22.02.2005, she, her husband Karu (deceased), her son Shivam and accused then present in the court were present in the house and were sleeping. Her son cried when someone put his foot on him at night. She, 16 S/v Kamlesh Singh her husband and the accused all got up on hearing cries of Shivam. Shivam went downstairs. Her husband and the accused followed him. She looked downstairs and saw that mother of Rajesh was standing near the stairs on the ground. She got suspicious as deceased had not woken up due to hearing of noise. They returned to the house and saw that deceased Karu was lying smeared in blood. She started weeping. On that mother of Rajesh reached upstairs. After that many neighbours including Rajesh, Keshav and Jai Prakash also reached there. She requested them to call the brother in law of the deceased. Someone called Anil. She tied the head of the deceased with a muffler. Anil made telephone call to police. She and Anil brought down the deceased to put him in the vehicle. Thereafter, they removed him to hospital. She was brought to the Police Station from the hospital. The police searched the house of her elder maternal uncle Jagdish. Thereafter, she was brought back to Police Station.
The witness stated that police did not record her statement in this case. This witness was cross examined on behalf of prosecution as she was resiling from her earlier statement. The witness denied that she made the statement mark PW22/A to the police. She admitted that when she was young her father got her married with Shiv Nath. She admitted that 17 S/v Kamlesh Singh Shivam is her son from her marriage with Shiv Nath. She also admitted that she was very young when her father expired. She admitted that accused is her maternal uncle (mama) and he had started residing with her at her house after death of her father. She admitted that she again got married with deceased Karu. She also admitted that she along with Karu came to Delhi and started residing at Sangam Vihar where the occurrence took place. She denied the suggestion that accused Kamlesh her other maternal uncle was not happy with her marriage with deceased Karu. She was confronted with portion A to A of statement mark PW22/A where it was so recorded. This witness admitted that accused was brought at her residence same days prior to incident. She volunteered, her deceased husband had brought him to Delhi as she used to remain ill. She admitted that accused used to sell groundnuts on 'rehdi'. She denied the suggestion that on one day deceased Karu had given beatings to her or that accused had objected of giving beatings to her by deceased Karu or that deceased had told accused as to who he was to interfere in his affairs or that on that account the accused has got annoyed or that the accused and deceased were not on talking terms prior to the incident. She was confronted with with portion B to B of her statement to police mark PW22/A where it was so recorded. The witness denied the suggestion that on the intervening night 18 S/v Kamlesh Singh of 21/22.02.2005 at about 2 am, she got up on hearing a noise or that she saw that the accused was standing at the gate of the house or that she caught hold shirt of the accused or that she inquired from him as to who he was or that accused gave push to her and went downstairs or that she saw deceased Karu lying in injured condition and bleeding from his head or that accused fled away through the staircase crying 'chor' 'chor'. Similarly, she was confronted with portion C to C of statement mark PW22/A where it was so recorded. She denied the suggestion that on hearing her cries landlord Keshav and his son came out and she told them that her maternal uncle Kamlesh had fled away after causing injuries to her husband Karu or that he had also taken her son with him or that son of landlord also told her that accused had taken Shivam with him or that the accused had committed murder of her husband as he was not happy with him. She was confronted with portion D to D of statement mark PW22/A where it was so recorded. She admitted that her husband was declared brought dead subsequently at the hospital.
PW23 is Inspector Jai Singh, IO of the case, who proved the various steps taken by him during investigation of the case. He corroborated with the statement of PW1 regarding recovery of blood stained dari, chaddar, pillow and shawl vide seizure memo Ex.PW1/A, lifting earth control from 19 S/v Kamlesh Singh the spot vide seizure memo Ex.PW1/B and collecting blood stained floor (farsh) vide seizure memo Ex.PW1/C. He stated that he prepared the site plan Ex.PW23/A with correct marginal notes. He corroborated with the statement of PW18 regarding seizure of two sealed pulandas and one sample seal, which were handed over to him by doctor, vide memo Ex.PW18/A. The witness stated that in the evening, he prepared investigation team consisting of himself, SI Ram Sahai, SI K.P. Sah and other police officials. They all went near the spot. He corroborated with the statement of PW18 and PW20 regarding arrest of accused from Anand Vihar Bus Terminal at the pointing out of secret informer, conducting personal search of accused vide memo Ex.PW18/B and recording of disclosure statement of accused Ex.PW18/C. He proved the pointing out memo prepared at the instance of accused as Ex.PW2/B and recovery of kulhari at the instance of accused vide memo Ex.PW2/A. He corroborated with the statement of PW18 regarding seizure of blood stained shirt at the instance of accused vide memo Ex.PW18/D. He stated that he recorded the statement of Kusuma Ex.PA correctly. He identified the chaddar, pillow, dari and shawl as Ex.P1 to P4. He also identified kulhari Ex.P5 and blood stained shirt as Ex.PW18/P1. He also stated that he collected the photographs and scaled 20 S/v Kamlesh Singh site plan from draftsman.
PLEA AND DEFENCE OF ACCUSED In the statement under section 313 CrPC, the accused has either denied the incriminating evidence emerging from prosecution case put to him or has expressed his ignorance about the same.
The accused has alleged that the fact is that some police officials along with local police and his elder brother Jagdish raided house of one Mahavir who is his son in law in relation and brought him along with Shivam son of his niece wife of deceased Karu to Delhi in brown clolour jeep and brought him back to Delhi and produced after two hours before SHO who interrogated him before other police officials who were present there along with Keshav, Rajesh, Anil, Jai Prakash and showed him the kulhari and said that they had recovered the weapons and lifted the kulhari form side of the almirah lying in the SHO's room.
The accused, however, admitted that when PW22 Kusuma was young, her father got her married with one Shiv Nath. Shivam is son of PW22 Kusuma from her marriage with Shiv Nath. He admitted that when her father expired, accused started residing with PW22 Kusuma at her house. He also admitted that again Kusuma was got married with 21 S/v Kamlesh Singh deceased Karu. He also admitted that he was brought at the residence of PW22 Kusuma some days prior to the incident and he used to sell groundnuts on a rehri. He also admitted that on the intervening night of 21/22.02.2005 PW22 Kusuma, her husband (deceased), her son Shivam and accused were present in the house. He also admitted that son of PW5 Rajesh Kumar caught hold of accused at some distance. PW4 Keshav Dass also reached there. He also admitted that Rajesh and Keshav caught hold of him from the back as they were hiding somewhere there only on the road. He also admitted that he enquired as to why he had been caught as the thief had gone to other side. He also admitted that he was seen running while making noise of 'chor' 'chor' by PW4 Keshav and PW5 Rajesh. Shivam aged about 11 or 12 years was also running along with him. They gave chase to both of them. After some chase, he was caught hold of by PW4 Keshav and PW5 Rajesh at some distance. He also stated that he was hiding himself on the corner when Jai Prakash met him and advised him to run away and took out Rs.400/- and told him to leave the place as "tulsi ke sar (head) par khoon sawar hai". Accused stated that it is a false case against him. The witnesses have given false statements and he has been falsely implicated in this case. He is innocent. He did not commit murder of the deceased. As he recollected on the day 22 S/v Kamlesh Singh of incident when all of them were sleeping suddenly Shivam cried. Because of that he also got up and saw some body running out of the room. Both of them started chasing by making noise 'chor' 'chor' and suddenly he was caught by Keshav and Rajesh from back who diverted his attention by saying where is the thief. He pointed out towards the direction from where they had seen person running. Suddenly, Keshav told him run away from there if he wanted to save himself. He hided himself in the dark and from there he started observing and he also sent Shivam to inquire about what was happening as he had seen PCR van stopping near the house. He returned and told him that 'chacha ko gadi mein dal ke lai ja rahe bahut khun bah raha hai'. 'Maa aur Anil (fufa) bhi saath gaye hai'. After this, he got scared and remembered the warning of Keshav. Meanwhile, Jai Prakash had come to ease himself and he inquired from him and he told him that 'tulsi's family kai sar par khoon sawar hai tum yaha sai bhag jao'. Police did not apprehend the real culprit.
In the defence, the accused has examined eight witnesses in all. DW1 is Mahavir Singh, who stated, in brief, that accused reached their village on 22nd, the month and year he did not remember. He reached their village at about 9 pm. It was winter season. He was accompanied by Shivam s/o Kusuma. They had tea with them. Thereafter, they all went to 23 S/v Kamlesh Singh bed. At about 12 midnight, police came to their village and apprehended Kamlesh, Shivam and him and brought them to Ettah. They took Kamlesh and Shivam inside the room and kept him outside that room in the varanda. Thereafter, police took Shivam and Kamlesh with them and he returned back to his village. Jagdish was with police on that night.
DW2 is Suman, wife of DW1 Mahavir Singh, who also gave similar statement as given by DW.
DW3 is Jagdish, elder brother of accused, who stated that on 22.02.2005 at about 11 am, police came to his house at Usmanpur. One dairy owner was also with them who knew to him. They interrogated him. They told him that accused had committed murder of one Karu. The police directed him to get his brother arrested or else he would be put behind the bar. Thereafter, police took him to third pushta. Two vehicles were already standing there. One was private vehicle and the other was police vehicle. Kusuma was sitting inside the police vehicle. The vehicle in which Kusuma was sitting left. He was made to sit in the private vehicle. The police took them to Etta. On the way, the police took five liquor bottles and consumed the same. He was also made to consume liquor. They reached at Ettah at about 11 pm. There they reached at the Police Station. Some writing work took place there. From there the police took them to village 24 S/v Kamlesh Singh Bijori. The police went to the house of Mahavir and Mahavir told that accused Kamlesh was present inside the house. Thereafter, police arrested accused Kamlesh along with Shivam. From there, they reached at Police Station Ettah. Accused Kamlesh was slapped there, from there accused Kamlesh was brought to Delhi. They reached at Police Station Sangam Vihar at about 9 am. He was produced before the SHO and was abused. One new axe (kulhari) was lying there. He was told that his brother Kamlesh had committed murder with the said kulhari. Accused Kamlesh was given beatings there. Thereafter, accused was challaned.
DW4 is Shivam, son of Shiv Nath, first husband of Kusuma, who stated that on 21.02.2005, his uncle and maternal uncle (accused) had prepared food together. They all took the food. His mother was ill. She was sleeping after taking medicines. His uncle and maternal uncle (accused) slept suddenly during night his hand came under the foot of someone and he got awakened. On hearing his cry, his maternal uncle (accused) got up. He saw someone going out hurriedly at the gate. He raised alarm 'chor' 'chor' and chased him. His maternal uncle (accused) was also following him. There, he saw his tai, mother of Rajesh, the landlady at the gate. When they were in the process of catching hold of the thief, his maternal uncle Kamlesh was caught hold from behind by 25 S/v Kamlesh Singh Rajesh. Meanwhile, his tau Keshav also reached there. The thief succeeded in running away. Tau told the accused that he would kill him as Karu has been killed and asked him to run away from there. The accused also asked him to run away from there. He also started running after getting himself released. There in the corner of the street the accused concealed himself and him. After some time, the police van came there. The accused took him towards the side of the house. On the way, Jai Prakash met them. He got stopped the accused and told him not to go there. He gave Rs.400/- to the accused as he was having no money. Thereafter, the accused took him along with him from there and they reached at the residence of his mausi at about 9.30 pm. They slept there at night. On hearing the noise at night, they saw that the police was there. Police apprehended the accused and put him inside the vehicle. He saw that his elder maternal uncle Jagdish was also sitting in the said vehicle. Police brought them from there at Police Station Ettah. He and the accused were taken inside the Police Station. They were given beatings. Some writing work was done there. From there they were brought to Police Station Sangam Vihar where he saw his mother sitting at the Police Station. The accused was taken in other room and there he was given beatings by the police. When he started weeping the police abused him 26 S/v Kamlesh Singh and slapped him. They were produced before the SHO. He also slapped him and the accused. One axe was lying there. The police showed the said axe to him and the accused and told that the accused had committed murder of the deceased with the said axe. Accused denied this. At the Police Station, Jai Prakash, Rajesh and Keshav were all present. The police showed blood stained clothes to the accused.
DW5 is HC Karan Singh, who proved the copy of DD entries dated 21/22.02.2005 from page No.85 to page No. 90 as Ex.DW5/P1 to P6. He also proved the photocopies of page No.54 to page No.63 of Roznamcha A register as Ex.DW5/P7 to P17.
DW6 is ASI Satish Tyagi, who stated that as per the direction of the SHO, he went to Ettah along with his staff in a raid. He did not remember the date and the name of staff who accompanied him. At Ettah, they could not get any clue regarding the accused and hence they returned back to Delhi. He did not know anything more about this case. Learned counsel for accused had put some leading question as the witness was allegedly not disclosing the correct facts. In his answer to such questions he denied that accused Kamlesh was arrested by him at Ettah or that he entered the facts in the DD register of Police Station Ettah.
DW7 is Ct. Tehsil Dar Singh, who proved the copy of arrival entry of 27 S/v Kamlesh Singh the Delhi Police officials from Police Station Sangam Vihar for the purpose of arrest of the accused from village Bijori as Ex.DW7/A. He also proved the copy of GD No.32 as Ex.DW7/B and copy of GD No.6 dated 23.02.2005 as Ex.DW7/C. DW8 is Ct. Devender Singh, who stated that he was posted in Police Station Sangam Vihar. He may be the operator of SHO during this period. He could confirm this fact only after seeing the record of Police Station Sangam Vihar. By seeing the log book he could not tell who was the driver of SHO from 22.02.2005 to 25.02.2005. Only after seeing the departure entry he could not say as to what was the movement of himself with the SHO during this period. He stated that the log book was not filled in his presence so by seeing the log book he could not tell about these facts. The operator who is posted with the SHO remained present with him during his duty. He could not recollect without seeing the record as to whether he worked as operator from 22.02.2005 to 24.02.2005 or that in that capacity what places were visited by him along with SHO during this period. The staff other than driver and operator accompanies SHO as per the requirement of the matter. The entries in Roznamcha were being made as and when the staff joined the duty and leave the duty on that day. The operator leaves the duty only after arrival of other operator and after giving 28 S/v Kamlesh Singh him the charge. The entry regarding other operator was also made in the Rojnamcha.
ARGUMENTS AND FINDINGS I have heard the learned Additional Public Prosecutor for the State, learned counsel for the accused and have gone through the written arguments filed on behalf of the accused, record of the case and relevant provisions of law. In support of arguments the learned counsel for accused has relied upon the following authorities.
1. Kalloo Passi Vs. State 2009 (4) LRC 129 (Del) (DB) High Court of Delhi.
2. Babuddin & Ors. Vs. State 2009 (4) LRC 133 (Del) (DB) High Court of Delhi.
3. Sohan Sahai Vs. State 2009 (3) JCC 2436 High Court of Delhi.
4. Sakal Deep Vs. UP State 1993 CRI.L.J. 551 Allahabad High Court.
5. O.Kullabi Singh Vs. State of Manipur 1998 (3) Crimes 367 Gauhati High Court (DB).
6. Sidra @ Sirdara Vs. State Criminal Appeal No.298 of 1985 Decided on 06.01.1989 Rajasthan High Court (DB).
7. Tej Singh & Anr. Vs. State of Rajasthan Criminal Appeal No.453 of 29 S/v Kamlesh Singh 1986 Decided on 30.08.1989 Rajasthan High Court.
8. Prabhoo Vs. State of Uttar Pradesh AIR 1963 Supreme Court 1113 (V 50 C 167).
9. Ram Bilas, Ram Pragat and Kashi Vs. State of UP Criminal Appeal No.990 of 1978 Decided on 22.11.1988 Allahabad High Court.
10.Anjinappa & Others Vs. State of Karnataka 2001 (1) Crimes 13 Karnataka High Court (DB).
The present case is based on circumstantial evidence. The important aspects and circumstances emerging in this case are being dealt with under different headings for the sake of convenience and the proper understanding and appreciating the evidence on record. But before that it would be appropriate to have a glance at the legal position is to the cases based on circumstantial evidence.
LEGAL POSITION AS TO THE CASES BASED ON CIRCUMSTANTIAL EVIDENCE In Sunder @ Lala and Ors. Vs. State 2009 VII AD (Delhi) 615 it was held as under:
" 29. It is settled law that circumstances play very important role in the appreciation of evidence. The conduct of witnesses is a very important facet to determine their creditworthiness. "
30 S/v Kamlesh Singh As evidence, there is no difference between direct and circumstantial evidence. The only difference is in that as proof, the former directly establishes the commission of the offence whereas the latter does so by placing circumstances which lead to irresistible inference of guilt. {See Dalpat Singh v. State of Rajasthan 2005 Cr LJ 749 (Raj) (DB)}.
In Padala Veera Reddy v State of AP, AIR 1990 SC 79 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. {See
31 S/v Kamlesh Singh also Shivu & Anr. v R. G., High Court of Karnataka, 2007 Cr LJ 1806 (SC)}.
ADMITTED POSITION The admitted position which emerges from the prosecution case, statement of the accused under section 313 CrPC and the defence of accused is that Kusuma is the wife of deceased Karu and accused is her maternal uncle. When Kusuma was young, her father got her married with one Shiv Nath. Her father expired when she was young and accused started residing with Kusuma in her house after death of her father. Again, Kusuma was got married with deceased Karu and she along with deceased Karu came to Delhi and started residing at Sangam Vihar where the occurrence took place. It is also admitted case of the parties that accused was brought at the residence of the deceased some days prior to the incident from the village along with Shivam the son of Kusuma from her first husband Shiv Nath as Kusuma used to remain ill. It is also admitted that on the intervening night of 21-22/02/2005 accused, Kusuma, Shivam and deceased Karu were present in the room in question in the house in question where murder of deceased Karu was committed. It is also not disputed that deceased Karu was hit with sharp edged weapon, he was 32 S/v Kamlesh Singh taken to the hospital where he died due to injuries sustained by him. It is also admitted position that the accused and the child Shivam climbdown from the stairs and were running on the road by shouting' thief', 'thief'. They were followed and caught hold by prosecution witnesses Rajesh and Keshav and accused enquired from them as to why he had been caught as the thief had gone to the other side. However, no thief was seen by these prosecution witnesses.
STATEMENT OF KUSUMA TO PUBLIC WITNESSES AGAINST ACCUSED
It is the prosecution case that Kusuma the wife of the victim Karu has stated to PW1 Anil the brother-in-law of the victim, PW4 Keshav, PW5 Rajesh soon after the incident that accused Kamlesh has killed her husband Karu and has run away with Shivam. These witnesses had also testified that she had made such a statement. Obviously, it is a hearsay evidence (statement of Kusuma) of these public witnesses one of whom is the brother-in-law of the deceased. Normally speaking, the hearsay evidence is inadmissible in evidence, as a result, it cannot be produced in the court proceedings, except as provided in the specific exceptions like dying declaration, admissions, doctrine of res gestae etc. Section 6 of the Indian Evidence Act deals with the relevancy of facts 33 S/v Kamlesh Singh forming part of the same transaction. It deals with the rule of res gestae. The facts which, though not in issue, are so connected with the fact in issue as to form part of the same transaction, are relevant, according to the said Section 6, whether they occurred at the same time and place or at different times and places. The four illustrations are also given in this Section 6 to explain the principle. The following two case law based fact situation would make the point clear.
Where the eye-witness spontaneously stated, that the accused killed the deceased, to other witnesses, who reached the place of occurrence immediately after the incident, because they were working in the near vicinity of the place of occurrence, the statement of such other witnesses would be relevant under s.6, as following parts of the res gestae and therefore, admissible for proving the incident. {See Om Singh V. State of Rajasthan 1997 CrLJ 2419 (Raj)} In another case, the accused assaulted the deceased, and made a statement as to the said fact to the brother of the deceased within half-an- hour of the act. The time gap between the act and the statement being not very long, such evidence was found admissible under Section s.6 Indian Evidence Act. {See Venkatesan V. State 1997 CrLJ 3854 (Mad)}.
34 S/v Kamlesh Singh In the fact situation of the present case the statement made by prosecution witness Kusuma to the other public witnesses Keshav, Rajesh and Anil soon after the incident when the witnesses reached in the room where the murder in question was committed and Kusuma was admittedly present in the room, is admissible in evidence by virtue of section 6 of the Indian Evidence Act in the light of Om Singh's case (supra) and Venkatesan's case (supra). More so, when Kusuma was examined by the prosecution as PW 22 and has admitted in the Examination-in-chief that after incident many neighbours including Rajesh, Keshav and Jaiprakash reached there. She requested them to call the brother-in-law of the deceased. Someone called Anil. Although PW22 Kusuma is hostile witness but this part of the statement made by her can be relied upon by prosecution in support of its case.
PW22 Kusuma has not in her statement supported the prosecution case that the accused killed the deceased Karu by inflicting axe blows. She was cross-examined on behalf of prosecution, still she has not made incriminating statement against the accused. It is to note that the accused is maternal uncle of Kusuma. After the death of her father she admittedly was brought up by the accused and her son from previous husband was 35 S/v Kamlesh Singh living with the accused in the village in question. Therefore, I am not inclined to believe the statement made in the court by PW22 Kusuma exonerating the accused as whatever was stated by her soon after the incident to the public witnesses should carry more weight than what she stated when she is produced as a witness after several months in the court to give evidence against her maternal uncle/accused.
Her statement as PW22 shows that she has tried to help and save the accused by stating incredible statements. She has stated that on the night in question her son has cried when someone put his foot on him in the light. She, her husband and the accused all got up on hearing cries of Shivam. Shivam went downstairs. Her husband and the accused followed him. She looked downstairs and saw that mother of Rajesh was standing near the stairs on the ground. She got suspicious as deceased had not woken up to 2 hearing of noise. The question is when she, her husband and accused got up on hearing cries of Shivam and went downstairs, where was the question of her getting suspicious by alleging that the deceased had not woken up due to hearing of noise? It is neither the story of prosecution nor of accused that deceased Karu also ran outside the room along with accused and Shivam to catch thief as stated by Kusuma as PW22. Therefore, it appears that she made incorrect statements in the 36 S/v Kamlesh Singh court and became hostile witness and is not worthy of credit insofar as her statements exonerating the accused are concerned. RECOVERY OF WEAPON OF OFFENCE AND RECOVERY OF BLOODSTAINED SHIRT OF THE ACCUSED The prosecution witnesses PW 2 Jai Prakah has stated that the accused got recovered kulhari (axe) vide seizure memo Ex.PW2/A. PW4 Keshav has also made similar statement. In the cross-examination PW4 Keshav stated that the accused got recovered the axe in his presence. The other witnesses PW20 SI K.P Sah and PW 23 Inspector Jai Singh have also stated that the accused got recovered the axe in question vide memo ExPW 2/A. It is credible for the prosecution that PW3 Dr. Arvind Kumar who has proved the post mortem report ExPW3/A of the victim Karu has indicated in his statement that the axe in question was produced before him by the investigating officer and according to his opinion Ex.PW3/B the injuries on the person of deceased Karu could be possible by this weapon. Further, the axe ExP5 as per FSL report ExPX had human blood on it but the blood-group could not be ascertained.
The statements of PW23 Inspector Jai Singh, PW18 SI Ram Sahai and PW20 SI K.P Sah prove that near the bushes in front of Air Force Station, Tughlakabad accused got recovered the bloodstained shirt 37 S/v Kamlesh Singh ExPW18/P1 by recovery memo ExPW18/D. The statement of these three witnesses seem to be credible with regard to recovery and identification of the shirt got recovered at the instance of accused. However, the FSL report though shows that the shirt of accused contains human blood but the category of the blood is not given in it as it could not be ascertained as per FSL report Ex-PX.
In Babuddin's case (supra) relied on behalf of the accused the recovery of bloodstained shirts and knives at the instance of accused persons was found not convincing as the said shirts were not detected with presence of human blood therefrom and there was no evidence that the shirts were worn by the accused persons at the time of incident. The place where from the shirt has been recovered was an open field accessible to one and all. Similarly, the two knives recovered at the instance of accused persons, one of the knives did not contain any blood though he was brought as that of the deceased was detected on this second knife. Again place of recovery of the two knives was jungle in the recovery memo did not mention that knives were lying concealed or hidden in a manner that this save and accepted person having special knowledge about their present none could detect the same. Therefore, it was held that the 38 S/v Kamlesh Singh circumstance of deceased being last seen in the company of the accused persons being the only incriminating evidence, is insufficient to hold it of the accused. Although, in the present case like Babuddin's case (supra) the recovery of shirt at the instance of accused and also weapon of offence, axe in question are on similar footing and are not that convincing but the distinguishing feature in this case is the statement of wife of deceased to the three public witnesses including brother-in-law of the deceased soon after the incident /murder of the deceased Karu besides last seen evidence against the accused. In Bhagwati Prasad v State of MP, 2009 XII AD(SC) 453, it was observed as follows:
"10. ..........the existence of blood or absence thereof would by itself not be such a fact as would completely wipe out the evidence of two eye-witnesses."
Perhaps the analogy can be extended to the convincing evidence of public witnesses who though are not eyewitnesses but have deposed that they were intimated by eye witnesses admissible incriminating fact under section 6 of the Indian Evidence Act against the accused soon after the murder in question. Therefore, the recovery of bloodstained kulhari (axe) or the bloodstained shirt may not be convincing evidence but in the fact situation of this case and in conjunction with other convincing evidence 39 S/v Kamlesh Singh against the accused the weak evidence of recovery of these incriminating articles at the instance of accused has corroborative value. Therefore, Babuddin's case (supra) though support the accused so far as the weak nature of evidence of recovery of axe and bloodstained shirt but coupled with the other convincing evidence produced by the prosecution it does not help the accused to such magnitude as to acquit him of the charge of murder.
In Sakal Deep's case (supra) relied on behalf of the accused the medical evidence showed that the deceased died of throttling and thereafter incised wounds were caused on the person of deceased. Therefore, recovery of axe at the instance of accused or the statement to the effect were not found sufficient to connect the accused with the murder. In the present case there is no such medical evidence and the opinion of medical expert, as already stated, shows that the injuries on the person of deceased Karu can be caused with the kulhari (axe) got record by the accused. Therefore, Sakal Deep's case (supra) also does not help the accused, more so, when the axe in question is got recovered by the accused in presence of two public witnesses .
In Prabhoo's case (supra) relied on behalf of the accused in the 40 S/v Kamlesh Singh Hon'ble Supreme Court has observed as follows:
"10. It is well settled that circumstantial evidence must be such as to lead to a conclusion which on any reasonable hypothesis is consistent only with the guilt of the accused person and not with his innocence. The motive alleged, in this case would operate not only on the appellant but on his father as well. From the mere production of the blood stained articles by the appellant one cannot come to the conclusion that the appellant committed the murder. Even if somebody else had committed the murder and the blood stained articles had been kept in the house, the appellant might produce the blood stained articles when interrogated by the Sub-Inspector of Police. It cannot be said that the fact of production is consistent only with the guilt of the appellant and inconsistent with his innocence. We are of the opinion that the chain of circumstantial evidence is not complete in this case and the prosecution has unfortunately left missing links, probably because the prosecution adopted the shortcut of ascribing certain statements to the appellant which were clearly inadmissible."
In Prabhoo's case (supra), as the motive alleged in the case attracted not only against accused but against his father as well, therefore, it was held that even if somebody else had committed the murder and the bloodstained articles had been kept in the house the accused might produce the bloodstained articles when interrogated by police. It cannot be said that the fact of production is consistent only with the guilt of the accused and inconsistent with his innocence. In the present case, these important circumstances are missing. Undisputedly, besides deceased, accused child Shivam and ailing Kusuma were present in the room in 41 S/v Kamlesh Singh question at the time of murder of victim. It would not be reasonable to presume that ailing Kusuma or child Shivam can cause the nature of injuries found on the person of deceased as per prosecution report Ex.PW3/A. Therefore, Prabhoo's case (supra) does not help the accused. ACCUSED ESCAPING FROM THE SPOT It is not disputed that after the incident accused escaped from the spot. The victim was taken to hospital by his wife Kusuma and the prosecution witnesses PW1 Anil the brother-in-law of the victim.
In Kaloo Passi's case (supra) relied on behalf of the accused it was observed by Division Bench of our Hon'ble High Court as follows:
"16. It is settled law that mere absconding by itself does not necessarily lead to a conclusion of a guilty mind. The act of self-preservation is such that even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime. The act of absconding is no doubt a relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. For instance, the circumstance of abscondence can be extremely fatal if the prosecution is able to prove that the victim was last seen in the company of the accused and that the accused is absconding after the death of the victim. Normally, the courts are disinclined to attach much importance to the act of absconding, treating as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused (see the decision of Supreme Court reported as Matru Vs. State of UP, AIR 1972
42 S/v Kamlesh Singh SC 1050).
17. In the instant case, there is no evidence to show that the deceased was last seen in the company of the appellant. In such circumstances and in view of the fact that circumstance of abscondence of an accused person is considered a weak link in the chain of circumstances utilised for establishing the guilt of an accused person as held by Supreme Court in the decision report as Raghubir Singh Vs. State of UP, AIR 1971 SC 2156, we do not consider it safe to rely upon the circumstance of abscondence of the appellant after discovery of the dead body of the deceased to sustain the conviction of the appellant."
In O.Kullabi Singh's case (supra) relied on behalf of the accused the following observations were made:
"21. The particular circumstances of having last seen together, it has been recorded as weak type of evidence (See Lakhan v. State of MP AIR 1979 SC 1620, Thimma v. State of Mysore AIR 1971 SC 1871). In view of the above discussions, the circumstances of being last seen together cannot be said to be firmly established. The incriminating circumstance of alleged abscondence has not even been put to the accused although used against him in the TIP suffered from inherent infirmity inasmuch the bare minimum necessary precaution required to be taken were not taken at all. The conviction, therefore, as recorded by the trial Court stands on quick-sand is liable to be quashed and accordingly quashed. The accused appellant is acquitted of the charge framed against him".
In Kaloo Passi's case (supra), it is made clear by our Hon'ble High Court relying upon dictum of Hon'ble Supreme Court in Matru's case that though mere absconding by itself does not lead to conclusion of guilty 43 S/v Kamlesh Singh mind of the accused but the act of abscondence along with the last seen evidence of accused being in the company of the victim can be extremely fatal to the accused. In the present case the accused on the fateful night was in the room in which deceased was murdered is an admitted fact and is also deposed as such by the wife of deceased Kusuma who though hostile witness has tried to support accused. Therefore, Kaloo Passi's case (supra) instead of helping the accused helps the prosecution. In O.Kullabi Singh's case (supra) it is the circumstance of being last seen together accused and victim which was not firmly established and also this incriminating circumstance was not put to the accused in his statement under section 313 CrPC. But in the present case there is no such deficienty. Not only the fact that accused absconded from the spot is admitted case of the both parties, but also this fact was admitted by accused in the statement under section 313 CrPC. Therefore, In O.Kullabi Singh's case (supra) also does not help the accused.
In Sohan Sahai's case (supra) relied on behalf of the accused the prosecution has not produced any evidence to establish that deceased was last seen with the accused. On account of admitted position in this case that the accused was in the room on the night the deceased karu was 44 S/v Kamlesh Singh murdered Sohan Sahai's case (supra) also does not help the accused. MEDICAL EVIDENCE The MLC of the victim Karu ExPW13/A and his post mortem report ExPW3/A show more than one injuries on the person of victim suggesting more than one axe blows on the person of deceased.
CRUCIAL CIRCUMSTANCE The crucial circumstance in this case which has great bearing to judge the innocence or guilt of the accused is that after the murder of deceased who was husband of niece of the accused and despite the fact that the niece of the accused was pregnant and used to remain ill in those days the accused instead of co-operating with the police in the investigation of murder in question has escaped to his village. In the village also he did not inform any relative or the police the true facts to seek police help which ought to have been done in the normal course. ADDITIONAL/MISSING LINK IN THE CHAIN OF CIRCUMSTANCES Once the fact of last seen together is proved, a duty is cast on the accused to explain the circumstances in which they parted company. The failure of the accused to explain the circumstances in which he parted company with the deceased may well serve as additional link in the chain 45 S/v Kamlesh Singh of circumstances thereby fortifying the prosecution case. {See Yogesh Karki v. State of Sikkim 2006 Cr LJ 509 (Sikkim) (DB)}.The accused absconding after incident is an additional circumstance which reinforces prosecution case, no explanation given by the accused as to where they were, indicates their guilty mind. {See Vaman Jaidev Raval v State of Goa, 2007 Cr LJ (NOC) 431 (Bom)}.
In the present case the accused has given a false reason for his absconding from the spot. He has stated in the statement under section 313 CrPC that he got up and saw somebody running out of the room as suddenly Shivam cried. Both of them started chasing by making noise 'chor' 'chor' (thief thief) and suddenly he was caught by prosecution witness Rajesh from back who diverted his attention by saying where is the thief. The initial part of this story is supported by prosecution witnesses up to the point that accused and Shivam were running and were caught by prosecution witness as Rajesh and Keshav but they have not supported his case that any thief was found or seen ahead only ahead of accused at that time. The circumstances of the case and the circumstantial evidence as led by the prosecution suggest that accused after committing murder of victim Karu pretended by running from the spot with Shivam by shouting 'chor' 46 S/v Kamlesh Singh 'chor' so that it may appear that the murder is committed by anybody else. There is no theft reported by the wife of deceased from the house. Further the occupants of the room in question should have got up when the axe blows were being given to the victim which may have sufficient loud noise in the silence of the night besides the cry of the victim who sustained axe blows. The story that Shivam got up due to pressure of the foot of the thief on his hand is, therefore, false.
It is a well settled principle that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue then the false explanation of accused offers an additional link in the chain of circumstances to complete the chain. {See Swepan Patra v State of West Bengal (1999) 9 SCC 242; Anthony D'Souza & ors v State of Karnataka 2002 (10) AD 37 (SC)}. A false answer offered by the accused when his attention was drawn to a circumstance renders that circumstance capable of inculpating him. In such a situation a false answer can also be counted as providing 'a missing link' for completing the chain. {See State of Maharashtra v Suresh 2000 (1) SCC 471, 2000 SCC (Cr) 263; Kuldeep Singh & ors v State of Rajasthan 2001 Cr LJ 479 (SC), (2000) 5 SCC 7; Joseph v State of Kerala AIR 2000 SC 1608, (2000) 5 Sec 197;
47 S/v Kamlesh Singh Jalasab Shaikh v State of Goa AIR 2000 SC 571, 2000 AIR SCW 111}. Where the accused on being asked, offers no explanation or explanation offered is found to be false, then that itself forms an additional link in the chain of circumstances to point out the guilt. {See Chandrasekhar Kao v Ponna Satyanarayana AIR 2000 SC 2138, JT 2000 (6) 465 SC; State of Tamil Nadu v Rajendran AIR 1999 SC 3535, 1999 Cr LJ 4552; Hari Lal v State 2001 Cr LJ 695 (All) (DB); Madho Singh & etc v State of Rajasthan 2001 Cr LJ 2159 (Raj) (DB); Sonatan Mahalo v State of West Bengal 2001 Cr LJ 3470 (Cal) (DB)}.
In view of the above discussion I hold that the prosecution has been able to prove all the links in the chain of circumstances against the accused to show that it is the accused alone who has committed the murder of the victim Karu. By taking falsely in the statement under section 313 CrPC to save himself the accused had provided additional link in the chain of circumstances appearing against him in the prosecution evidence to point out his guilt. Therefore, the prosecution has been able to prove its case against the accused of the charge of murder beyond reasonable doubt.
48 S/v Kamlesh Singh DEFENCE OF ACCUSED The defence of the accused is two-fold. He examined as much as eight witnesses in his defence. DW1 Mahavir Singh, DW2 Suman, DW3 Jagdish, DW4 Shivam and DW7 Ct. Tehsil Dar Singh are produced by the accused to show that he was arrested from his village from the house of his elder brother DW3 Jagdish and not from Anand Vihar Bus Terminal as alleged by the prosecution. This evidence led by the accused is at least on equal footing with that of the evidence of the prosecution as regards the place of arrest of the accused. Therefore, since the burden to prove defence on the accused is lighter and he can discharge the burden by preponderance of probabilities while the prosecution has to prove its case beyond reasonable doubt, the story of the accused that he was arrested from his village from the house of his brother, in my view, can be believed. But this fact does not absolve the accused from his liability due to several reasons. One, the place of arrest is not such a material circumstance which has a great bearing on the decision in this case. The fact remains that the accused was arrested by the police of the police station concerned whether at one place or the other. Two, whether the accused was arrested at Anand Vihar Bus Terminal or in his native village in district Ettah in UP, in 49 S/v Kamlesh Singh both cases he has absconded from the place of incident after murder of Karu. Three, the fact that accused had gone to the place of his brother in the village instead of going to the place of his sister who is mother of his niece Kusuma and mother-in-law of victim Karu also points to the guilt of the accused as he had not only escaped from the spot in Delhi but also could not dare to go to the house of his sister where he used to live before going to Delhi for obvious reasons that he had committed murder of son in law of his sister.
The defence of accused is based on the statement of Shivam DW4 who has stated that he had come to Delhi about 10/12 days prior to the incident along with accused. There was only one room there. They all used to sleep in the said room. Suddenly during night his hand came under the foot of someone and he got awakened. On hearing his cries, his maternal uncle also got up. Is he saw someone going out hurriedly at the gate. He raised the alarm 'chor' 'chor' (thief, thief) and chased him. The accused also followed him. He was caught hold from behind by Rajesh. Meanwhile Keshav also reached either. This thief succeeded to run away. In nutshell this witness wanted to say that some other person who was thief entered their room in the night and because his foot fell on his hand he woke up and ran behind him so also accused ran behind him. The story 50 S/v Kamlesh Singh is not worth believing for the simple reason that no theft was committed from the house of deceased. The accused and DW4 Shivam were found running after the incident of inflicting blows by axe on the person of victim Karu . There are some very important factors which make the defence evidence not believable. One, the post mortem report Ex.PW3/A and the MLC Ex.PW13/A of the deceased show multiple injuries on his person due to axe blows. In the silence of night these blows can we presumed to make loud voice besides loud cry of the victim to make the occupants of the room awake. Two, the accused escaped from the spot by alleging that he was asked by Jai Prakash not to go to the spot and he gave Rs.400/- to the accused as he was not having any money. This fact is not proved by cross- examination of relevant witnesses. In the cross-examination PW5 Rajesh, PW4 Keshav and PW3 Jai Prakash have denied the suggestions put to them in the cross-examination relating to defence of the accused. Three, when there are four occupants in a room out of which one is murdered by axe blows the heavy responsibility lies on the other occupants of the room to explain the cause of death and the name of the assailant. Instead of doing that not only the accused took false plea in the statement under section 313 CrPC but also produced a false defence by producing the son of his niece DW4 Shivam which was not rightly examined by the police for 51 S/v Kamlesh Singh obvious reason that he would support the accused as he was not the son of the victim but was son of the wife of deceased from her previous husband. Even the wife of the victim also became hostile though examined by the prosecution as its witness again for the obvious reason that accused is her maternal uncle. Further, the accused and Shivam came together from the village to the house of victim in Delhi. Therefore, the accused had great influence on the child Shivam who used to live with him in the village. Three, the multiple injuries by axe blows were caused on the person of the victim but accused, in his statement under section 313 CrPC and DW4 Shivam are silent about it. They have not even stated that they heard the noise of axe blows or the cry of the victim when he was being attacked.
In view of the above, I hold that the defence of the accused is not truthful regarding the alleged story of thief or his escape from the spot which is an additional link in the chain of circumstances against him, as already discussed.
RESULT OF THE CASE In Sidra's case (supra) relied upon by learned counsel for accused, the extra judicial confession allegedly made by accused did not refer to any motive for killing and the witnesses did not inform the father and relative of 52 S/v Kamlesh Singh the deceased about confession made, before the police arrived and accused was not arrested by police despite confessing his guilt So, the extra judicial confession of accused was not relied upon but in the present case there is no extra judicial confession of the accused. So, Sidra's case (supra) is distinguished on facts and inapplicable to the present case.
In Tej Singh's case (supra) relied upon by learned counsel for the accused, there was old enmity and litigation pending between complainant party and accused and there was contradiction between the statement of prosecution witnesses and also delay in examining eye witness by the IO. These facts are missing in the present case. So, Tej Singh's case (supra) is distinguished on facts and also does not help the accused.
In Ram Bilas's case (supra) relied upon by learned counsel for the accused, the accused himself received serious and substantial injuries in the incident and the chance witnesses were produced by the prosecution against accused and both prosecution and defence version were found unreliable and failed to explain situation of case at all. On these facts accused persons were acquitted, but in the present case, such facts are missing so Ram Bilas's case (supra) does not help the accused.
In Anjinappa's case (supra), like Sidra's case (supra), there was 53 S/v Kamlesh Singh extra judicial confession made by the accused which was found not reliable but in the present case there is no extra judicial confession. In addition, the sole eye witness in that case turned hostile and did not support the prosecution. But in the present case, the situation is different as there is no extra judicial confession. Therefore, Anjinappa's case (supra) also does not help the accused.
In view of the above overall discussion of chain of incriminating circumstances appearing against accused and his unreliable defence, I hold that the prosecution has been able to prove its case against the charge of murder framed against the accused beyond reasonable doubt by proving all necessary circumstances in the chain of circumstantial evidence. The accused is convicted under Section 302 IPC. Let he be heard on the point of sentence. The judgment be sent to the server (www.delhidistrictcourts.nic.in).
Announced in the open
court on 16/02/2010 (S.K. Sarvaria)
Additional Sessions Judge:01/South
Patiala House Court
New Delhi
54 S/v Kamlesh Singh
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01/SOUTH
PATIALA HOUSE COURT
SESISONS CASE NO. 340/09/05
State Vs. Kamlesh Singh
S/o Sh. Bhajja Singh
R/o Village Nayagaon
PS Rajepur
District Farukhabad
FIR No. 147/05
Police Station Sangam Vihar
Under Section 302 IPC
Date of Judgment 16/02/2010
Date of order on
sentence 23/02/2010
ORDER ON SENTENCE
Vide my separate judgment dated 16.02.2010, accused Kamlesh was convicted for the charge under Section 302 IPC.
Learned Additional Public Prosecutor for the State has argued for capital punishment as accused had committed brutal murder of the husband of his niece so it is argued that extreme penalty should be awarded to convict.
On the other hand, learned for the accused has argued that accused 55 S/v Kamlesh Singh is not previous convict so lenient view may be taken against him.
The sentence for murder prescribed by section 302 IPC is death 'or imprisonment for life' in the alternative. The sentence of life imprisonment is the minimum, provided under this section, and that cannot be reduced even if the court so desires. {See Shamim Rahmani v State of Uttar Pradesh AIR 1975 SC 1883, 1889, 1975 Cr LJ 1654.) The question of sentence is a matter of judicial discretion. The relevant considerations in determining the sentence, broadly stated, include the motive for and the magnitude of the offence, and the manner of its commission. {See Krishan v State of Haryana 1997 Cr LJ 3180 (SC)}. The determination of sentence in a given case depends on a variety of considerations; the more important being the nature of the crime, the manner of its commission, the motive, which impelled it and the character and antecedents of the accused. {See Apren Joseph alias Current Kunjukunju & ors v State of Kerala AIR 1973; SC 1, 1973 Cr LJ 185}. The heinousness of the crime is a relevant factor in the choice of the sentence. The circumstances of the crime, specially social pressures which induce the crime which we may epitomise as a 'just sentence in an unjust society' are another consideration. {See Shiv Mohan Singh v State (Delhi 56 S/v Kamlesh Singh Admn) AIR 1977 SC 949; 1977 Cr LJ 767}.
Although the injuries mentioned in the post mortem report of the deceased Karu show the brutality and weapon of offence used is axe but the Hon'ble Supreme Court emphasized that in every murder case, brutality is involved, but how the same took place is the relevant and necessary material to constitute a crime, such as murder committed for gain and when there is nothing exceptionally gruesome about the manner of committing the murder, the death penalty is not justified {See Subhash Ram Kumar Bind alias Vakil & Another Vs. State of Maharashtra (2003) Cr LJ 443 (SC), State of Himachal Pradesh Vs. Manohar Singh Thakur (1998) Cr LJ 3630 (SC)}.
In every incidence of murder, brutality is involved. Brutality, obviously would be an existing factor, but how the same did take place is the relevant and necessary material to be considered. Brutality by itself will not bring it within the ambit of rarest of rare cases {See Registrar General High Court of Karnataka Vs. Prakash Jadav (2006) Cri LJ 3393 (Kant) (DB); Shyam Lal Vs. State of Chattisgarh (2006) Cr LJ 4743 (Chattisgarh) (DB)}.
Keeping in view the over all facts and circumstances of the case, I 57 S/v Kamlesh Singh do not find this case to be one amongst rarest of rare cases to justify awarding of capital punishment to the convict. Therefore, the convict Kamlesh is awarded sentence of life imprisonment for the offence under Sections 302 IPC. However, in the light of Bidhan Nath alias Parijat Kusum Nath & Ors Vs. State of Assam 2000 Cr LJ 1144 (Gau) (DB) there is no need to award fine in the given facts and circumstances of the case. The judgment and order on sentence be sent to server (www.delhidistrictcourts.nic.in).
The copy of judgment and order on sentence be supplied to the accused free of cost. File be consigned to record room.
Announced in the open
court on 23/02/2010 (S.K. Sarvaria)
Additional Sessions Judge:01/South
Patiala House Court
New Delhi