Delhi District Court
Kumar vs . State ( Delhi Administration ) That: on 5 February, 2011
IN THE COURT OF MS. MADHU JAIN, ADDITIONAL
SESSIONS JUDGE01, NORTH, DELHI.
FIR No.: 84/2010
PS: Civil Lines
U/s: 302//34 IPC
S.C. No.: 89/2010
Case ID No.02401R0355482010
In the matter of:
State
Vs.
Abbu
S/o Sh. Kunda Swami
R/o House no. 123, Madrasi Colony
Mori Gate, Tis Hazari Delhi
Date of receiving in Sessions Court : 20.08.2010
Arguments Heard : 03.02.2011
Date of Judgment : 05.02.2011
JUDGEMENT
Case Of Prosecution:
1. On 2.5.2010 on receipt of DD no.17A at P.S. Civil Lines regarding lying of a male dead body at Khandar OPL, Near Mori Gate Red Light, Inspector Rakesh Kumar alongwith Constable Sudesh Kumar reached at the spot where concerned SHO, ASI Rambir Singh and other police officials were already present. On entering into the Khandar, dead S.C. No.: 89/2010 1/23 body of a male was found lying inside a small room. Blood was also lying in the room and there were blood spots on the wall of the room towards the legs of dead body. Crime Team was called at the spot and photographer of the crime team took photographs of the site as well as of the dead body from different angles. There were cut wounds on the neck, cheek and shoulders of the dead body. Blood sample, earth control, blood stained earth and other articles were lifted from the spot and was taken into possession vide seizure memos. Investigation was made regarding the identity of dead body but name and identification of the dead body could not be established and case U/s 302 IPC was registered at P.S. Civil Lines. Further investigation of the case was handed over to Inspector Rakesh Kumar who during the course of investigation, met one eye witness Raju S/o Annu in the Khandar who stated that he is the eye witness of the case and had seen the incident. He stated that the name of deceased is Mota @ Langra who was a smack addict and used to live in the Khandar. At about 9.30 p.m. accused Abbu alongwith coaccused Raja (Since absconding) who were under the influence of liquor came there .
At that time, he was also sleeping in the Khandar. Accused Abbu got him wake up and asked his name. Thereafter they both went inside the adjacent room where Mota @ Langra, the deceased was taking smack. Accused Abbu started abusing him and a fight started between them. Thereafter accused Abbu took out a paper cutter from his pocket and gave cutter blows on the cheek of Mota @ Langra. Mota @ Langra tried to run S.C. No.: 89/2010 2/23 away from there but accused Abbu and Raja (Since absconding) caught hold of him and while beating they both took the deceased into a small room and accused Abbu gave blows with the paper cutter on the person of deceased Mota @ Langra and deceased fell on the ground then and there. PW Raju further stated that thereafter both the accused persons came near him and accused Abbu wanted to kill him also but with the intervention of coaccused Raja, accused Abbu spared him and thereafter both the accused persons ran away from the spot. IO recorded the statement of PW Raju, prepared the site plan and sent the dead body to Subzi Mandi Mortuary for postmortem examination. During the further course of investigation, statement of Raju U/s 164 Cr.P.C. was got recorded by the IO, accused Abbu was arrested and from his personal search, a paper cutter was recovered. IO also got the accused medically examined from hospital, obtained the crime team report, sent the exhibits of the case to FSL, Rohini for expert opinion and after completion of investigation filed the challan in the court.
2. Since the offence u/s 302 IPC is exclusively triable by the court of sessions, therefore, after supply of the documents, Ld. MM committed the case to the court of Sessions.
Charge Against The Accused:
3. Prima facie case u/s 302 IPC r/w section 34 IPC was made out against the accused. Charge was framed against him to which he pleaded not guilty and claimed trial.
S.C. No.: 89/2010 3/23 Witnesses Examined:
4. In support of its case, prosecution has examined 22 witnesses in all.
5. The brief summary of deposition of prosecution witnesses is as under:
Formal Witnesses:
6. PW1 is Constable Karan Singh, who took the copies of FIR to the residence of Ld. MM, ACMM, Joint CP, DCP/North and ACP/North.
7. PW2 is Head Constable Sonu Kaushik, the draftsman who took rough notes and measurements of the spot and prepared the scaled site plan Ex. PW2/A.
8. PW3 is Head Constable Naresh Kumar, who took the sealed parcels to FSL, Rohini and got the same deposited there.
9. PW4 is Constable Inderjeet, Photographer of the Crime Team who took six photographs of the spot including the dead body from different angles and proved the same as Ex. PW4/1 to Ex. PW4/6. He further proved the negatives as Ex. PW4/7 to Ex. PW4/12.
10. PW5 is SI Devender Purang, Incharge from Mobile Crime Team who inspected the scene of crime and prepared the detailed report Ex. PW5/A.
11. PW6 is Sh. J.P. Nahar, Ld MM who recorded the statement U/s 164 Cr.P.C. of PW Raju and proved the same as Ex. PW6/A. S.C. No.: 89/2010 4/23
12. PW7 is ASI Hukum Singh, the duty officer who recorded the FIR and proved the same as Ex. PW7/A.
13. PW8 is ASI Narayan Dutt, Incharge PCR who on receipt of message from police Head Quarter reached at Madrasi Colony where one person was found lying in unconscious condition and PW8 with the help of local police officials took the injured to Aruna Asaf Ali Hospital and got the injured admitted there.
14. PW9 is Constable Sudesh Kumar who alongwith the IO Inspector Rakesh Kumar reached at the spot where dead body of deceased was lying and he took the rukka to Police Station for registration of the FIR.
15. PW11 is Shivani who stated that she was called by the police to identify the dead body of a deceased but she could not identify the dead body as the dead body was defaced.
16. PW18 is Head Constable Jai Prakash and PW21 is Head Constable Ishwar Singh, they both are the MHC(M) and have duly proved the entries regarding deposition of case property in the malkhana register. Medical Witnesses:
17. PW12 is Dr. S. Lal from Subzi Mandi Mortuary who conducted postmortem on the dead body of deceased and proved the report as Ex. PW12/A. . He also gave opinion on the weapon of offence and injuries present over the body of deceased and proved the same as Ex. PW 12/B. S.C. No.: 89/2010 5/23
18. PW19 is Dr. Lingrah Sahoo, Senior Scientific Officer from FSL, Delhi who examined Ex. P5 for presence of alcohol and proved the report as Ex. PW. 19/A.
19. PW20 is Ms. Sunita Suman, Senior Scientific Officer, Biology from FSL, Rohini who examined the exhibits of the case and proved the report as Ex. PW20/A and Ex. PW20/B.
20. PW22 is Dr. Ruby Kumari from Aruna Asaf Ali Hospital who examined the accused and proved the MLC as Ex. PW 22/A. She had also examined Constable Mahipal Yadav as well as SI Jagdish Yadav and proved the MLCs as Ex. PW17/A and Ex. PW15/DA respectively. Material Witnesses:
21. PW10 is ASI Rambir Singh, who was with the IO during the investigation of the case. In his presence, crime team inspected the scene of crime, IO recorded the statement of PW Raju , got the FIR registered, prepared the site plan and lifted the blood stained earth, earth control and other articles lying there and took into possession the same vide seizure memos.
22. PW13 is Raju, eye witness of the case who stated that on the intervening night of 1st and 2nd May 2010, it was Saturday. At about 9.30 p.m he was sleeping in a Khandar at Mori Gate Redlight. At that time, accused Abbu and Raja (Since absconding) reached there. They picked up him from his hairs and used abusive language and thereafter they went in another room where Mota @ Langra, the deceased was taking smack . S.C. No.: 89/2010 6/23 Accused Abu started abusing him and caught hold of him. A quarrel started between the deceased, coaccused Raja, and accused Abbu. Thereafter accused Abbu took out a paper cutter and caused injuries on the cheek of Mota @ Langra, the deceased. Mota @ Langra started running from there but accused Abbu and Raja (Since absconding) chased him and apprehended him. They took the deceased into a small room and gave blows of paper cutter on the person of Mota @ Langra. He further stated that he himself had seen the incident and deceased Mota @ Langra was crying at the time of incident. He stated that accused Abbu also wanted to kill him and was saying that " Ye Mooh Khol Dega, Ise Bhi Maar Do" but coaccused Raja stopped him and told him " Ye Apna Aadmi Hai, Ise Chod Do". Thereafter both of them ran away from the spot. Police officials in the next morning reached there and asked him about the incident and he told the entire facts to the police.
23. PW14 is ASI Ram Tirath who was with the IO during the arrest of accused. In his presence IO interrogated the accused and recorded his disclosure statement.
24. PW15 is SI Jagdish Yadav who alongwith Constable Mahipal apprehended the accused from Madrasi Colony, Near Rajender Market when accused was giving threats to the general public and with the help of PCR officials took the accused to Aruna Asaf Ali Hospital for his medical examination as the accused had scuffle with them and he was also given beatings by the general public. He further stated that they also S.C. No.: 89/2010 7/23 received minor injuries during the scuffle with the accused and they were also medically examined at Aruna Asaf Ali Hospital.
25. PW16 is Inspector Rakesh Kumar, IO of the case who conducted the investigation of the case, recorded the statement of witnesses, got postmortem on the dead body of deceased conducted through concerned doctor, prepared the site plan, got the statement U/s 164 Cr.P.C. of eye witness Raju recorded , arrested the accused, recorded his disclosure statement, sent the exhibits of the case to FSL, Rohini for expert opinion and after completion of investigation filed the challan in the court.
26. PW17 is Constable Mahipal who alongwith PW15 SI Jagdish Yadav apprehended the accused and has deposed on the lines of PW15.
27. Statement of accused U/s 313 Cr.P.C. was recorded wherein he denied the case of prosecution and stated that he is innocent and he has been falsely implicated in this case. He further chose not to lead any evidence in defence.
28. I have heard Ld. APP for the state as well as Ld. Defence Counsel and have carefully perused the record.
Conclusion:
29. Section 302 IPC provides for punishment for the offence of murder. Section 300 IPC deals with murder as : Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention S.C. No.: 89/2010 8/23 of causing death, or Secondly: If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly: If it is done with the intention of causing such bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly: If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
30. Section 299 IPC defines the offence of culpable homicide. This section says when culpable homicide amounts to murder. In the Penal Code 'Culpable Homicide' is used as a generic term, and is exhaustively subdivided into two species, namely, culpable homicide amounting to murder (section 300, clauses 1, 2, 3, 4) and culpable homicide not amounting to murder (section 299 and Exceptions to section
300).
31. In the case in hand the information regarding the dead body was received in the police station Civil Lines vide DD no. 17 A. DD no. 17 A was marked to ASI Rambir and the duty officer also informed Inspector Rakesh Kumar about the call. Inspector Rakesh Kumar alongwith Constable Sudesh Kumar reached at Khandar OPL, near Mori S.C. No.: 89/2010 9/23 Gate, Red Light where the other police officials were also present. Dead body of a male was lying in a room of the Khandar and there were marks of injuries on the body of deceased and blood was also there at the spot. IO asked some persons about the incident but no one disclosed about the injuries received by the deceased and thereafter crime team was called at the spot . As per PW16 Inspector Rakesh Kumar while doing the investigation, they met one Raju S/o Annu who was watching the police proceedings from the roof of Khandar. He was called and was asked about the incident on which PW Raju narrated the whole incident and also disclosed the name of accused Abbu and Raja and the name of deceased as Mota @ Langra. Raju. The eye witness of the case informed the police officials that at the time of incident deceased was taking smack. On the pointing out of witness Raju, search in the room of Khandar where the deceased was taking smack was made and four empty match box on which ship was printed, three tablets Combiflame, Four Panni Pipe, Nine Silver Colour Panni of Cigarette, burnt match sticks and pieces of bidi, two plastic cups in burnt condition were found which were taken into possession vide memo Ex. PW10/A.
32. The eye witness of the case i.e. PW Raju has been examined by the prosecution as PW13. This witness stated that Mota @ Langra was murdered by Abbu with the help of a paper cutter. Deceased Mota @ Langra was murdered in his presence and at the time of incident, co accused Raja (since absconding) was also with accused Abbu. He further S.C. No.: 89/2010 10/23 stated that on the intervening night of 1st and 2nd May, 2010 it was Saturday. At about 9.30 p.m. he was sleeping in a Khandar at Mori Gate Redlight. Perusal of the calender of year 2010 shows that on 1.5.2010 it was Saturday. This witness was also produced before the Ld MM by the IO and his statement U/s 164 Cr.P.C. was recorded by the Ld. MM. In his statement U/s 164 Cr.P.C. also this witness has stated that he does not remember the date but it was Saturday night. The incident is stated to have taken place on 1.5.2010 at about 9.30 p.m. and perusal of the calender of year 2010 shows that it was Saturday on 1.5.2010 which shows that the witness is not lying or is not a tutored witness. He has further duly described the whole incident and has stated that deceased Mota@ Langra was taking smack when accused started abusing him and caught hold of him. A quarrel started between the deceased, coaccused Raja, and accused Abbu. Abbu was having a chain in the neck which was broken during this scuffle and thereafter accused Abbu took out a paper cutter and caused injuries on the cheek of Mota @ Langra, the deceased. Mota @ Langra started running from there but accused Abbu and Raja (Since absconding) chased him and apprehended him. They took the deceased into a small room and gave blows of paper cutter on the person of Mota @ Langra. He further stated that he himself had seen the incident and deceased Mota @ Langra was crying at the time of incident. Witness further stated that accused Abbu also wanted to kill him and was saying that as he has seen the incident so he should also be killed but thereafter S.C. No.: 89/2010 11/23 coaccused Raja stopped him and thereafter both of them ran away from the spot. Police officials in the next morning reached there and asked him about the incident and he told the entire facts to the police. He further stated that his statement was also recorded by the Magistrate U/s 164 Cr.P.C. I have seen the statement U/s 164 Cr.P.C. proved on record as Ex. PW6/A. In this statement also the witness has duly stated about the whole incident. There are slight discrepancies in the statement given by this witness in the court and that given U/s 164 Cr.P.C. like in the statement U/s 164 Cr.P.C. the witness has stated that accused asked the deceased about one Sunil but this fact has not been disclosed by the witness in the court, in the statement U/s 164 Cr.P.C. the witness has fully described the incident and has stated that accused Abbu had hit on the front neck portion of Mota @ Langra and also on the back side of neck and back of chest but this fact has not been described by the witness in the court. But these minor discrepancies does not go to the root of the case and does not disprove the case of prosecution.
33. I have perused the postmortem report of deceased Mota @ langra proved on record as Ex. PW12/A and as per the postmortem report, the deceased had multiple superficial incised wound on the left side of the face in area of 14 x 4 cm which were skin deep . There were also multiple incised cut throat injury intermingling to each other and also incised wound 12 x 4 cm x 2.5 cm deep on the back of neck. The witness in his statement U/s 164 Cr.P.C. as well as in the court has stated that accused S.C. No.: 89/2010 12/23 had caused injuries to the deceased on the left side of his face. In the court during his statement this witness has stated that accused Abbu took out a paper cutter and caused injuries on the cheek of deceased Mota @ Langra. Thus, injuries found on the person of deceased also tallies with the descriptions given by the witness in the court. As per the postmortem report Ex. PW12/A, the cause of death is shock and haemorrhagic shock due to ante mortem cut injury to neck sufficient to cause death in the ordinary course of nature. Further injury no. 2 i.e. cut throat injury on the neck is sufficient to cause death in ordinary course of nature. Thus, it has been proved by the prosecution that deceased Mota @ Langra died due to the injuries given on his person by the accused.
34. It has been held in 2009 VIII AD(S.C.) 215 Subhash Chandra & Ors. State of U.P. that: " Indian Penal Code, 1860 - Sec.147,148,149,302,307,323,324 Conviction accused armed with lathis and assaulted the deceased - deceased died in the primary health center - post mortem report corroborated the grievous injuries - Stab wound 1cm x 0.25 x skin - Police station, 3 miles away, therefore no delay in registration of FIR - deceased received grievous injuries both with blunt and sharp edged weapons - stab wounds, incised wounds along with lacerated wounds found - Doctors injury report support prosecution story - injuries on accused pursuant to resistance by deceased, as stated in deceased statement recorded by investigating officer - Contradiction, minor in nature, do not affect prosecution case - accused having blunt, sharp edged weapons shows intentions of accused to cause death Statement in FIR by and large corroborated - appeal dismissed, conviction affirmed".
35. Further it has been held in 2009 VIII AD (DELHI) 223 Raj S.C. No.: 89/2010 13/23 Kumar Vs. State ( Delhi Administration ) that: " Indian Penal Code, 1860 - Sec. 302, 27 Murder - Ocular evidence - Eye witnesses had seen the appellant carrying a knife in his hand, either stabbing the deceased or running away with the knife from the spot - HELD - No contradiction in the testimony of witnesses and post mortem report with regard to killing with knife - If the edge of the knife is used, it would cause a sharp cut, while if the head of the knife would be used, it would cause a pointed sharp cut - Blunt injury could be with the some act with the knife of otherwise in the process of attack and fall - No contradiction in statement of PW3 - Nothing, which prevents the testimony of even an interested witness to be relied upon as long as it is consistent and trustworthy - Testimony of ocular witnesses shows that there was a grudge held by the appellant as he perceived a role of the deceased in the death of his son - Sufficient Material to establish the guilt of the appellant beyond noticed that where a witness has found to have given unreliable evidence in regard to certain particulars, then the Court should scrutinize the rest of his evidence with care and caution and if the remaining evidence is trustworthy and substratum of the prosecution remains intact, then the court should uphold the prosecution case to the extent it considers safe and trustworthy - Injury caused by the appellant to the deceased was sufficient in the ordinary course of nature to cause death - no immediate provocation - Crime cannot be brought under section 304 Part II IPC - Covered under the provisions of Section 300 IPC - Appeal dismissed " .
36. PW13 has been cross examined at length but nothing material has come out of the cross examination of this witness. This witness has stated in his cross that his statement was recorded in the Khandar on 2.5.2010 i.e. on the next day of the incident. He was not the best friend of deceased Mota @ langra and he knew him as the deceased used to take smack. The witness is also not the friend of deceased and therefore the S.C. No.: 89/2010 14/23 possibility of he being an interested witness is also ruled out.
37. This witness has further stated that the deceased was sleeping in another room in Khandar and maximum drug addicts were sleeping in the Khandar. Ld. Defence counsel argued that it is not possible that despite the fact that so many smack addicts were sleeping in the Khandar, accused would have caused the murder of deceased in presence of everyone and further except for one witness, no other person has been made a witness in this case by the IO. As per PW13 other smack addicts were also sleeping in the Khandar at that time but the police officials who reached at the spot after getting the information of the dead body have clearly stated that they did not find any eye witness at the spot. The other persons who were sleeping there must have ran away from there after the incident and therefore if the IO could not find any other eye witness at the spot, no adverse presumption for the same can be drawn . Moreover PW13 has stated that the deceased Mota @ Langra was alone taking smack in the room opposite to his room. PW 13 has further stated that he did not go to the police for the fear of accused. He has clearly stated that accused threatened to kill him also due to which he was very frightened and if for this reason, he also did not cry for help, then no adverse inference for the same can be drawn.
38. Ld. Counsel for accused submits that the eye witness is planted witness by the prosecution. He had not seen the incident and is only speaking against the accused for the reason that police officials have S.C. No.: 89/2010 15/23 assured him not to arrest him in the smack case. In the statement of accused U/s 313 Cr.P.C. accused has not stated any such thing. Rather he has stated that he does not know any Raju and he has been falsely implicated in this case. Also, there is no reason shown as to why the accused would be falsely implicated in this case by PW13 Raju if PW13 was not the best friend of deceased and was just acquainted with him. It is also not the defence of accused that PW13 had some prior enmity with him due to which PW13 falsely implicated him in the present case. Moreover PW13 came to the court not only once but even before the Ld. MM where his statement U/s 164 Cr.P.C. Ex. PW6/A was recorded, PW13 has duly taken the name of accused and there is no reason to disbelieve the testimony of this witness. The witness though is illiterate but is clearly able to state that it was Saturday night and as per the prosecution also, the incident took place on 1.5.2010 which is Saturday as per the calender of year 2010.
39. In the present case one witness i.e. Shivani who was the wife of deceased has not supported the case of prosecution. She is the witness who identified the dead body of deceased but she has stated that she was called by the police to identify the dead body of person and police compelled her to identify the dead body and also pressurized her to tell lie. She saw the dead body as per the directions of the police officials but could not identify the dead body as the dead body was defaced. Though this witness has not supported the case of prosecution regarding the S.C. No.: 89/2010 16/23 identity of dead body but she has admitted her signatures on her statement Ex. PW11/A. She has further stated that she saw the dead body which means that she was there for the identification of dead body. But she has stated that as per the directions of the police officials, she saw the dead body but could not identify the dead body as the dead body was defaced. The fact that PW11 has not supported the case of prosecution regarding the identity of dead body does not shake the case of prosecution as PW13 has duly identified the dead body of deceased Mota @ Langra and thus the identity of dead body has been duly established by the prosecution by PW13 Raju who is the eye witness of the case and is the first person who met the IO after the incident. PW13 has clearly stated that his statement was recorded on 2.5.2010 by the IO and he told the IO that accused Abbu has murdered Mota @ Langra with the help of paper cutter. Thus both the identity of the dead body as well as of the accused has been duly established by the prosecution.
40. As per PW15 SI Jagdish Yadav, when he reached at Madrasi Colony, Near Rajendra Market, accused Abbu was extending threat to the general public that he would kill them in case anyone depose against him in murder case and accused was under the influence of liquor at that time. Accused was not wearing any shirt and he was only wearing a pant. When PW15 tried to apprehend him, accused grappled with him and in the scuffle he and Constable Mahipal also received minor injuries. The testimony of PW15 is further corroborated by PW22 Dr. Ruby Kumari S.C. No.: 89/2010 17/23 who has stated that she prepared the MLC of Constable Mahipal Yadav Ex. PW17/A and also the MLC of SI Jagdish Yadav Ex. PW15/DA and both of them had received simple injuries. The testimony of PW15 that accused grappled with them and they also received minor injuries during that scuffle is further corroborated by PW17 Constable Mahipal. The inquest report Ex.PW16/B have been prepared by the IO which duly states that name of deceased as well as of the accused who by that time was already arrested by the police.
41. PW15 has further stated that with hard efforts, they could apprehend the accused. Thereafter accused became unconscious due to scuffle and beatings given by the public and he was brought to the hospital by PCR Van. PW8 is ASI Narayan Dutt Incharge PCR who stated that he reached at Madrasi Colony alongwith driver Narender and Constable Paras where one unconscious person was found lying and he with the help of local police officials took the injured to Aruna Asaf Ali Hospital. PW22 Dr. Ruby Kumari who examined the accused has also stated that she examined the accused Vide MLC Ex. PW22/A. In the MLC Ex. PW22/A of accused, it is clearly stated that the patient was given beatings by the public and he was brought by Head Constable Sube Singh for medical examination and in the personal search of accused, one paper cutter having yellow handle was found and handed over to the IO. Patient was unconscious and was not responding at that time. Nothing material has come out of the cross examination of PW15 also. S.C. No.: 89/2010 18/23
42. As far as the seizure of weapon of offence is concerned, PW22 Dr. Ruby Kumari has also stated that from the personal search of accused, one paper cutter having yellow handle was recovered which was sealed and handed over to the IO Inspector Rakesh Kumar. IO has also stated that the doctor handed over him one paper cutter in sealed condition which was recovered from the personal search of accused. IO has further stated that he arrested the accused and opinion on the weapon of offence i.e. paper cutter used in the commission of crime was sought from the doctor. The report given by the doctors on the weapon of offence is proved on record as Ex. PW12/B by Dr. S.Lal. As per this report Ex.PW12/B, the paper cutter had yellow colour plastic handle and it has been clearly opined by the doctor that the injuries no.1 to 5 mentioned in the postmortem report can be possible by this weapon of offence or similar type of weapon before him. Thus, the injuries received by the deceased are possible by this weapon of offence i.e. paper cutter as per the doctor who conducted postmortem on the dead body of deceased. The weapon of offence was recovered from the accused in Hospital when he was taken for medical examination after being beaten by the public. In MLC Ex. PW22/A also it is stated that in the personal search of accused, one paper cutter with yellow handle has been seized and handed over to the IO. Doctor Ruby Kumari has also stated in the court that from the personal search of accused, paper cutter having yellow handle was recovered and the testimony of doctor in this regard has remained S.C. No.: 89/2010 19/23 unchallenged and unshattered. Thus, it has also been proved by the prosecution that the weapon of offence i.e. paper cutter was recovered from accused Abbu during his personal search and the injuries caused on the body of deceased are possible by this weapon or similar type of weapon.
43. PW19 is Dr. Lingaraj Sahoo, Senior Scientific Officer from FSL who examined parcel no.5 for the presence of alcohol and proved the report as Ex. PW19/A. He has stated that Ex. P5 was containing blood sample of Abbu and during examination he found that blood sample of Abbu contains ethyl acohol 25.1 mg/100 ml of blood. As per PW 15 also when the accused was apprehended he was under the influence of liquor. Thus, this report Ex. PW19/A also corroborates the testimony of PW15 SI Jagdish Yadav that accused was under the influence of liquor when he was apprehended.
44. PW20 is Ms. Sunita Suman, Senior Scientific Officer, Biology from FSL, Rohini who examined the exhibits of the present case and proved the report as Ex. PW20/A and Ex. PW 20/B. Perusal of FSL Report Ex. PW20/A shows that the blood of human origin of Group 'A' was found on the clothes of deceased and also on the blood stained earth. This fact shows that the blood group of deceased was 'A'. Similarly blood group 'A' of human origin was found on the paper cutter as well as on the pant of the accused which was having brownish stains i.e. blood stains which is mark Ex. 6 as per the FSL report Ex. PW20/A. Both the paper S.C. No.: 89/2010 20/23 cutter as well as the pant of accused i.e. clothes which he was wearing had 'A' Group blood present on the same. It may be possible that the accused's blood group is also 'A' because no opinion has been received regarding the blood sample of accused as the same was putrified. But on the paper cutter also which has been found from the possession of accused and which as per the prosecution, accused used to cause injuries on the person of deceased Mota @ Langra, blood group 'A' of Human Origin has been found which further proves the fact that this weapon was used by the accused in committing the murder of Mota @ Langra the deceased.
45. Thus the actus reus ie. act of causing injuries on the person of deceased by accused has been duly proved by the prosecution beyond reasonable doubt.
46. Now coming to the next ingredient i.e. mens rea or the criminal intention on the part of accused to commit murder of deceased. The intention of the accused can be only proved by way of circumstantial evidence i.e. the conduct of accused at the time of offence. In the present case PW13 who is the eye witness of the case has clearly stated in the court that accused took out a paper cutter and caused injuries on the cheek of Mota @ Langra. Thereafter Mota @ Langra started running from there and accused Abbu alongwith coaccused Raja chased him and apprehended him. They both took the deceased into a small room and gave blows of paper cutter on the person of Mota @ Langra, the deceased. This act of accused i.e. chasing the deceased and dragging him to a small S.C. No.: 89/2010 21/23 room shows the intention of the accused. This act of accused shows that the intention of accused was not only to cause injuries on the person of deceased but also to cause his death. Thereafter accused reached near the eye witness PW13 and wanted to kill him and was saying 'Yeh Mooh Khol Dega Isse Bhi Maar Do'. This fact further proves that the accused had full intention to kill the deceased and he wanted to kil PW13 also but the other coaccused Raja (Since absconding) told him "Ye Apna Aadmi Hai, Ise Chod Do" due to which accused Abbu stopped and they both ran away from there. This fact has been narrated by PW13 in his statement U/s 164 Cr.P.C. recorded by the Ld. MM also. In the statement Ex. PW6/A, PW13 Raju has stated that accused went again in the room where Mota @ Langra was crying and he hit leg a number of times on the face of Mata @langra on which Mota had died. Thereafter accused Abbu asked other coaccused Raja that he wants to kill Raju also since he has seen the incident. This act of accused duly proves his intention that he had full intention to cause death of Mota @ Langra, the deceased and not less than that. Thus, intention on the part of accused to cause the death of deceased Mota @ Langra also stands proved by the prosecution. Reliance is placed upon 2010 V AD(S.C.) 444 Shaukat And Ors. Vs. State of Uttaranchal.
47. PW1 is the Special Messenger, PW2 is the draftsman, PW3 is Head Constable Naresh Kumar who took the exhibits to FSL, PW4 is the photographer of crime team, PW5 is the Incharge Crime Team, PW7 is S.C. No.: 89/2010 22/23 the duty officer, PW8 is the Incharge PCR Van who took the accused to Aruna Asaf Ali Hospital, PW9 is Constable Sudesh Kumar who took the rukka to police station, PW10 is ASI Rambir Singh who was with the IO, and PW14 is ASI Ram Tirath who was with the IO during the arrest of accused. All these witnesses are the important link witness of the case and have duly proved the case of prosecution and thus the chain of evidence also stands completed.
48. In view of the abovesaid discussion, prosecution has been duly able to prove its case against the accused beyond reasonable doubt. As such accused Abbu is held guilty and convicted for the offence U/s 302 IPC read with section 34 IPC.
(MADHU JAIN) Additional Sessions Judge01 (North) Tis Hazari Courts, Delhi.
Announced in the open court on 05.02.2011.
S.C. No.: 89/2010 23/23