Delhi District Court
State vs (1) Kishan Dev @ Krishna on 2 November, 2011
1
IN THE COURT OF SH. S.K. SARVARIA DISTRICT JUDGE/
INCHARGE (NORTH WEST), ADDITIONAL SESSIONS JUDGE,
DISTRICT COURTS, ROHINI, DELHI
Session Case No. 98/10
State VERSUS (1) Kishan Dev @ Krishna
S/o Parmeshwar Mehto
R/o Village Dhatha
District Samastipur, Bihar
(2) Lakhi @ Lakhiya
S/o Ram Japo
R/o Village Dhatha
District Samastipur, Bihar
PS. Rosada (Proclaimed Offender)
FIR NO: 1134/05
P.S : Nangloi
U/s : 302/34 IPC
J U D G M E N T :-
1. The SHO of police station Nangloi had challaned the accused to face trial for the offences under Sections 302/34 IPC. The learned Metropolitan Magistrate after supplying the copies of documents to the accused in compliance of section 207 Cr.P.C has committed the case to the Court of Sessions as provided under section 209 Cr.P.C.
BRIEF FACTS
2. The prosecution case as disclosed in the challan filed under Section 173 Cr.P.C is that on 19.11.2005, Inspector Harpal Singh was given DD No.29 P.P Tikri Border by ASI Nahar Singh Yadav in which it was stated that one dead body is lying in the field of Harkesh S/o Sukhdev V & P.O State Vs. Kishan Dev 2 Tikri Kalan. Thereafter, Inspector Harpal Singh went to the spot and found dead body of a person with ligature mark on his neck and his throat was strangulated with a cloth or rope. The blood was also lying near the head of the dead body and it appeared that from the mouth of the dead body sufficient blood had come out. There were also injuries on the left shoulder and hand of the deceased. The crime team came to the spot. The spot was photographed but no eye witness could be found at the spot. The dead body was sent to Sanjay Gandhi Memorial Hospital, Mangolpuri for preservation. The blood sample, the blood sample gauze and blood stained earth, earth control, brown colour shawl, one grey colour hawai chappal and nut bolts were seized by the police in pulandas and sealed with the seal of HSY. The control room was informed by wireless, site plan was prepared. On wireless WT messages were flashed with the photographs. In the effort to identify the dead body the notice containing photograph of dead body were sent along with photographs of deceased through Constable Jagdish.
3. After conducting the postmortem of deceased, the pulanda of handkerchief, blood gauze piece envelope and sample seal were received and blood stained clothes of deceased (shirt, pant, baniyan, socks, underwear and shoe) were seized by the police. The clothes of deceased were kept for identification of the same. Later on, it was found that the deceased was Ashok S/o Late Jogeshwar Mehto from village Khodawan. He used to live near Uttam Nagar main bus stand, Kabari wali gali on rent. On 25.11.2005, Constable Jagdish, the brother of deceased Ashok namely Sanjay, brother in law of Sanjay, Arun and father in law of Ashok, Ram Chander Mehto came and identified the deceased Ashok from his photograph.
4. One cycle repairer Sukh Shekhar Mehto was interrogated who State Vs. Kishan Dev 3 informed that accused was his uncle's son namely Arun's brother in law (sala) and used to live with him in the gali. On 18.11.2005 at 6.45 p.m, Ashok, Kishan Dev Lakhiya and Shree were passing through his house and he inquired from him because he knew from before that there was strained relations between Ashok and Kishan. Ashok informed him that Kishan wanted to talk about the difference between them and since he was taking the vehicle to the godown of Ashok Nagar, Jangi, they would talk with each other on the way. Ashok and the three went together. Kishan Dev lives in godown of Sunny at Mundka. Thereafter, he did not see Ashok. On the identification of Sukheshwar SI Sita Ram went to the godown of Sunny at Mundka and joined Kishan Dev at Eicher Canter DL-1LC-1448 and joined him in investigation and after inquiry he was arrested and informed that he along with Lakhiya and Shree got Ashok intoxicated by consumption of liquor and after that with the help of a rope Ashok was strangulated and with the help of Shree and Lakhiya, he took Ashok in the said Canter to PVC Market road which goes towards Jharoda. At a lonely place, they threw the dead body of Ashok on the road.
5. Sub Inspector Sita Ram took the canter DL-1LC-1448 into police possession vide seizure memo. He recorded disclosure statement of Kishan Dev and pointing out memo of the place where the dead body of victim was thrown. Inspector Ishwar Singh Addl. SHO Nangloi took the police custody remand of accused Kishan Dev and with the help of accused the nylon rope of blue colour by which the victim was strangulated was recovered from the bushes. The same was seized in a pulanda and was sealed with the seal of ISD. Accused Lakhi @ Lakhiya and accused Shree could not be traced despite efforts by SI Sita Ram. The pulanda of nut bolt was opened before ASI Devender and request was sent for mechanical inspection of the canter. The mechanical inspection report was received.
State Vs. Kishan Dev 4
6. For the arrest of accused Lakhi, non bailable warrants were got issued and as he avoided arrested, the process under Section 82 Cr.P.C was got issued. Despite that the accused Lakhi @ Lakhiya was not traceable, so he was declared a proclaimed offender. A supplementary challan was filed against him after he was declared Proclaimed Offender. The medical opinion with regard to nylon rope was obtained and doctor concerned has opined "ligature mark mentioned in the postmortem report could be possible by this or similar such material" The cause of death as per postmortem report was asphyxia, as a result of pressure over neck structure subsequent to strangulation and all injuries were ante-mortem in nature and of fresh duration. The statements of witnesses were recorded. The motive for the crime was that deceased Ashok got arranged a panchayat in the village on account of accused Kishan maltreating his sister. Therefore, accused Kishan Dev was inimical towards him and he alongwith co-accused Lakhi @ Lakhiya and his friend committed murder of Ashok and threw his dead body from the canter at PVC road which goes towards Jharoda and the three accused persons moved the dead body from the road and thereafter, they went away in the canter, which was being driven by accused Kishan Dev. On completion of the investigation, the accused Kishan Dev was challaned as referred before. The co-accused Lakhi @ Lakhiya could not be arrested and was declared proclaimed offender, so a supplementary challan was filed against him. The third accused could not be traced during investigation.
CHARGES AND PLEA OF ACCUSED
7. The prima facie case for the offences under sections 302/34 IPC was found to be made out against the accused so the charge was State Vs. Kishan Dev 5 framed accordingly against him on 14.07.2006 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
8. In support of its case the prosecution has examined twenty nine witnesses in all namely PW1 Ram Chander Mehto, PW2 Ghuran Singh, PW3 Sukh Shekhar,PW4 Constable Ajeet Kumar, PW5 Surinder, PW6 Sanjay Mehto, PW7 Dr Manoj, PW8 Ms. Rinku, PW9 Head Constable Brij Kishore, PW 10 Head Constable Jaibir Singh, PW 11 Ram Lal Mehto, PW 12 Krishan, PW 13 Kasturi Lal, PW 14 Assistant Sub Inspector Raj Bala, PW 15 Sub Inspector Anil Kumar, PW 16 Sub Inspector Mahesh Kumar, PW 17 Assistant Commissioner of Police Harpal Singh, PW 18 Constable Balbir Singh, PW 19 Irshad Ahmed @ Pardeshi, PW 20 Ashok Yadav, PW 21 Munna, PW 22 Constable Jagdish Singh, PW 23 Sub Inspector Nahar Singh, PW 24 Retired Assistant Sub Inspector Tech Davender Kumar, PW 25 Head Constable Tarif Singh, PW 26 Azad Singh, PW 27 Inspector Dharampal, PW 28 Sub Inspector Sita Ram, PW 29 ASI Devender Singh. To have access to the prosecution evidence, it would be appropriate to give a short resume of the statement of prosecution witnesses recorded in the court.
9. PW1 Ram Chander deposed that his daughter Usha Devi was married with Ashok Kumar according to Hindu Rites and Customs. After the marriage his son in law Ashok came to Delhi and he used to come to native village very rarely. On 21.11.2005 brother of his son in law namely Sanjay made a call to PW1 Ram Chander and informed that his brother Ashok is not traceable.
He further deposed that on 22.11.2005, he went to police State Vs. Kishan Dev 6 station Khudavan Pur. Police official of Delhi namely Jagdish had shown the photograph of his son in law and PW1 identified the photograph of his son in law Ashok. PW1 Ram Chander along with police official came to police station Nangloi and PW1 Ram Chander tried to search accused Krishan Dev and Lakhia, who used to reside with son in law of PW1 Ram Chander but they could not be traced. He further deposed that on 25.11.2005 police officials recorded statement of PW1 Ram Chander regarding murder of his son in law Ashok. PW1 suspect accused Krishan Dev and Lakhia that they had committed murder of his son in law Ashok.
10. PW2 Ghuran Singh deposed that on 23.11.2005 his nephew made a call to him and stated that Ashok Kumar has been murdered in the area of police station Nangloi. On 25.11.2005, PW2 Ghuran Singh went to police station Nangloi where police officials had shown the photograph of deceased Ashok Kumar and Sanjay and his relative identified the photograph of deceased Ashok Kumar.
11. PW3 Sukh Shekhar deposed that he along with Arun his cousin resided at Om Vihar Phase-I. Ashok Kumar along with Ram Lal used to reside in second gali in the same locality as a tenant. On 18.11.2005 at about 7 PM , Ashok along with Kishan Dev and Lakhiya and Shree came to a tea shop in a Canter ( small truck), near the road of Kabari Gali. Ashok met PW3 Sukh Shekhar and he told PW3 that he was going to Shahdra along with accused Kishan Dev, Lakha and Shree. Ashok told PW3 Sukh Shekhar to inform this to Ram Lal who used to live with Ashok. PW3 Sukh Shekhar told this fact to Ram Lal. Thereafter Ashok did not return.
He further deposed that on the next day, Ram Lal came to PW3 Sukh Shekhar in the evening and informed him that Ashok had not State Vs. Kishan Dev 7 returned. Thereafter, PW3 Sukh Shekhar along with Anil went to the place of employment of Ashok. But Ashok was not found there. It was told that Ashok is not attending his duties from the Friday evening when PW3 Sukh Shekhar had seen him going with accused. Anil knew the telephone number of the brother of accused who then gave the telephone number of brother of accused Krishan Dev. Anil then telephoned the employer of Krishan Dev who told that he had gone to Mundka on Canter. Police met PW3 Sukh Shekhar on 23.11.2005 and police informed that Ashok has been murdered. Police enquired from PW3 about Ashok and his place of work. PW3 told to police the place of work of Ashok. PW3 also told the police that Ashok is not traceable since 18.11.2005 the day on which he had left Krishan Dev. PW3 then telephoned Krishan Dev at the instance of police and enquired about his whereabouts who told PW3 that he is in Mundka. PW3 along with police officials went to the godown of Sunny where Krishan Dev met them. PW3 pointed out the accused Krishan Dev and police made enquiries from accused Krishan Dev. Accused Krishan Dev disclosed that he had taken Ashok Kumar in Canter to Mahavir Nagar where the Canter was loaded.
He further deposed that accused Krishan Dev purchased a bottle of liquor and a quarter bottle of liquor. He along with Lakhia, Shree had consumed the liquor with Ashok and had committed the murder of Ashok Kumar by strangulating him with the help of rope. He further deposed that after committing the murder dead body was thrown on PVC Road at Tikri Border. Accused was arrested on 25.11.2005 and his arrest memo Ex PW3/A was prepared and his personal search was conducted vide memo Ex PW3/B. Accused pointed out the place where the dead body was thrown and pointing out memo Ex PW3/C was prepared. Canter bearing registration no. DL1LC 1448 used in the offence was taken into possession vide memo Ex PW3/D. He identified Canter as Ex P1.
State Vs. Kishan Dev 8
12. PW4 Constable Ajeet Kumar deposed that on 19/11/2005, on receipt of DD No. 29, he along with Assistant Sub Inspector Nahar Singh reached at PVC Road in the field of Harkesh. Dead body of a male aged 35-40 years, height 5.5'' was found in the field and blood was lying near the head of dead body. Assistant Sub Inspector called the crime team at the spot, a hanky was stuffed in the mouth of the dead body and there was blood on the cheek and face of dead body. There were 3-4 cut marks on the face of the dead body. There were also bruises on the face. There were ligature marks on the neck of the dead body. He further deposed that the man was first strangulated with the help of clothe of rope and thereafter he was run over by a four wheeler. A trishule and Om marks were there on the right forearm of the dead body. Dead body was having a check shirt and pant of brown colour on it. Dead body was having a pair of shoes and a pair of chappal was lying near the body.
He further deposed that investigating officer made his endorsement on DD No. 29 and handed over the same to PW4 for registration of the case. He took the rukka to police station Nangloi and got registered the case at police station Nangloi. After registration of the case, PW4 came back at spot and handed over the original rukka and carbon copy of FIR to SHO Inspector Harpal Singh. He took the dead body to mortuary of Sanjay Gandhi Memorial Hospital. He got preserved the dead body in the mortuary. On 22.11.2005, PW4 along with Assistant Sub Inspector Nahar Singh went to Sanjay Gandhi Memorial Hospital, doctor conducted post mortem of the dead body. After post mortem dead body was handed over to them.
13. PW5 Surinder deposed that he was running his photo shop in the name and style of Bala Ji Studio. On 19.11.2005, he was called by police near the field of Harkesh PVC Road. A dead body was lying near the State Vs. Kishan Dev 9 road and he took seven photographs. Photographs are Ex PW5/A1 to A7 collectively and negatives are Ex PW5/A8 to A14.
14. PW6 Sanjay deposed that he had one brother namely Ashok who used to work in Delhi . Ram Lal made a call to him on phone no. 0624769759 and told him that his brother was not in Delhi and has gone back to his native village along with Kishan. He told him that they both have not come back to the native village. He went to the house of his brother in law Krishan Dev ie village Dhatta, District Samsati Pur but Krishan Dev was not found there.
He further deposed that on 22.11.2005, the police came at his house and showed him the photograph of his brother Ashok which he identified. On 25.11.2005, he came at police station Nangloi where he was shown the clothes of his brother Ashok. He identified his shirt having the label of Fashion Tailor, village Khudaband Pur, Distt Begu Sarai from whom his brother Ashok had got stitched his shirt. He identified Ex PW10/A1 to PW10/A9 and Ex PW6/A are the photographs of his brother. He also identified shirt Ex P2.
This witness was hostile and was cross examined by learned Additional PP for State. He denied that a message was received from Ram Lal that Ashok had gone with accused Krishan Dev on 18.11.2005. He admitted that he had gone to the village with Ram Chander Mehto to verify about Ashok. He admitted that accused Krishan Dev was not found in his house and he had also not found Ashok there and he took the telephone number of accused Krishan Dev and asked him whereabouts of Ashok or that accused told him that he was not aware about the whereabout of Ashok. He admitted that accused Krishan Dev was a driver in Delhi. He admitted that his brother Ashok was residing in Kabadiwali Gali, Om Vihar, Phase-I, Uttam Nagar. He admitted that accused used to harass and tease State Vs. Kishan Dev 10 his sister Rinku and this fact was also known to the father in law of his brother. He denied that Ashok had gone to the village of accused Krishan Dev and had also discussed with 2-3 persons who had also insulted the accused for harassing Rinku. He further denied that accused had assured not to harass or tease her sister but despite this, he continued harassing and teasing her.
15. PW7 Dr Manoj proved postmortem report Ex PW7/A which is in the handwriting of Dr Ashish Jain. According to this report cause of death was asphyxia as a result of pressure over neck structure subsequent to strangulation. All injuries are antemortem in nature and of fresh duration. Time since death is approximately 3 ½ days.
16. PW8 Ms Rinku deposed that she was married with accused Krishan Dev about 10-12 years back. After marriage accused came to Delhi and he started living in his matrimonial home in Bihar. Accused used to keep her properly and happy. She has three children. There was no dispute between her husband and her brother. This witness was hostile and was cross examined by learned Additional Public Prosecutor. She denied that her statement was not recorded by the police. She denied the suggestion that she had stated to police that her husband Kishan Dev used to harass her. She further denied the suggestion that she would make Kishan Dev to understand. She further denied the suggestion that her husband wanted to take revenge from her brother Ashok for his insult. She further denied the suggestion that her brother Sanjay and her brother in law Arun and father in law of Ashok came to her home. She further denied the suggestion that she had stated to police that photograph shown to her was that of her brother.
State Vs. Kishan Dev 11
17. PW9 Head Constable Brij Kishore deposed that on 19.11.2005, he was posted at Police Post Tikri Border Police Station Nangloi and was performing duty as DD writer from 8 PM to 8 AM. On that day at about 7.30 AM, one person Krishan came in Police Post and informed him that a dead body of male was lying in fields of PVC Road, Tikri Kalan. He recorded DD No. 29 in DD register and he proved photocopy of said DD which is Ex PW9/A.
18. PW 10 Head Constable Jaibir Singh deposed that on 19.11.2005 he reached at the spot i.e. PVC Market Road and on the instructions of investigating officer, he took eight photographs from different angles of the dead body. He proved negatives which are Ex PW10/A1 to A8 and positives are Ex PW10/A9 to A16.
19. PW 11 Ram Lal Mehto deposed that he used to reside in the house of Kishan as a tenant at Nawada and he used to pay Rs. 200/- as rent. Ashok used to reside with him in the house of Kishan. Ashok was driver of Satyapal and godown belonged to Satyapal. He further deposed that Ashok used to leave in the morning and used to come back everyday in the morning.
He further deposed that on 18.11.2005 Ashok had not come back home. He went to the house of Sukh Shekhar Mehto who was relative of Ashok. He asked Sukh Shekhar Mehto that Ashok had not come back. Sukh Shekhar Mehto told him that Ashok along with Kishan Dev, Lakhia and one other persons went to Shahdra in the tanker. Thereafter he came back home and went to sleep. On 19.11.2005, he went to Matiala at the godown of Satyapal where one person namely Pardeshi met him who told him that Ashok had not returned from Shahdra. He went to Matiala Chowki, police officials of PP Matiala told him that Ashok must have reached home. He State Vs. Kishan Dev 12 further deposed that on 23.11.2005, police officials came to the house of Sukh Shekhar Mehto, he was called by the police at the house of Sukh Shekhar Mehto where photos of dead body of Ashok were shown to him, he identified Ashok from his photographs.
20. PW 12 Krishan deposed that by profession he doing the job of photographer. On 19.11.2005 while going to his field, when he reached near the field of Harkesh and found ded body of a man aged about 35-40 years lying on the road, near the field. He went at the Police Chowki at Tikri Border and informed the police.
21. PW 13 Kasturi Lal deposed that he was registered owner of vehicle Canter No. DL-1LC-1448. About 2-2 ½ years prior to the incident, he employed Krishan Dev accused on the said canter. On 18.11.2005 and 19.11.2005 accused Krishan Dev was driver on the said Canter. Later on, he came to know that accused had committed the incident and was arrested by the police and Canter was impounded by the police from police station Nangloi. Thereafter he had taken the Canter on superdari and proved photocopy of registration certificate which is Ex PW13/A.
22. PW 14 Assistant Sub Inspector Raj Bala deposed that on 19.11.2005 he was working as Duty Officer from 9 am to 5 pm. On that day at about 10.30 AM he recorded FIR No. 1134/2005 and proved carbon copy of FIR which is Ex PW14/A. He further deposed that on 19.11.2005, he also recorded DD No. 5A regarding the receipt of Tehri and also DD No. 6A regarding after the registration of FIR sending of copy of FIR to senior police officials including Area Metropolitan Magistrate through Special messenger through Constable Jagdish. He proved the said entries which is Ex PW14/B. State Vs. Kishan Dev 13
23. PW 15 Sub Inspector Anil Kumar deposed that on 19.11.2005 he was posted as Incharge Mobile Crime Team, West District, Delhi. On that day, on receipt of information from Police Station Nangloi, he along with his team reached PVC Road, near the field of Harkesh. He inspected the spot and prepared the crime scene report which is Ex PW 15/A.
24. PW 16 Sub Inspector Mahesh Kumar deposed that on 29.12.2005, he was called by Inspector Ishwar Singh, Additional SHO, Police Station Nangloi. On the pointing out of Inspector, he took measurement of the spot and prepared rough notes. On the basis of the measurement and rough notes, he prepared scaled site plan which is Ex. PW16/A. After preparation of scaled site plan, he destroyed the rough notes.
25. PW 17 ACP Harpal Singh deposed that on 19.11.2005, he was posted as SHO, PS Nangloi. On that day ASI Nahar Singh informed him regarding the discovery of dead body on PVC Road. He immediately rushed at the spot and found body of a 35-40 years male having ligature mark on the neck and blood coming out from his mouth. There were cut marks on the cheeks and bluish marks on the face. On further checking the body, the label of Fashion Tailor, Khodawanpur(BEG) was found on the shirt of deceased. ASI Nahar Singh prepared rukka and sent the same to police station through Constable Ajit. After registration of FIR, the investigation was marked to him by duty officer. He inspected the spot and prepared site plan which is Ex PW17/A. Blood lying near the body was lift ed with the help of cotton and kept in a plastic container and a pullanda was prepared which was sealed with the seal of HSY. Blood stained earth was also lifted and kept in a plastic container and sealed with the seal of HSY. Earth State Vs. Kishan Dev 14 control was lifted from the spot and kept in a plastic container and sealed with the seal of HSY. Brown colour shawl lying over the body was lifted and kept in a pullanda which was sealed with the seal of HSY. One gray colour hawai chappal found below the body was also kept in a pullanda and sealed with the seal of HSY. All the sealed pullandas were seized vide memo Ex PW17/B. Crime team inspected the spot. He conducted the inquest proceedings which is Ex PW 17/F. The body was sent to SGM Hospital for preserving the same for 72 hours vide his application Ex PW 17/C. He further deposed that on 22.11.2005, he got conducted the postmortem of the body of deceased. The body was not identified till then. After postmortem, the doctor handed over a sealed pullanda containing handkerchief recovered from the mouth of the body, one sealed parcel containing the blood gauze piece, one sample seal of AJ, and clothes of the deceased i.e pant, shirt, shoes, socks and undergarments, the same were seized vide memo Ex PW 17/D. The body was cremated as unidentified body at Punjabi Bagh Cremation Ground vide receipt Ex PW 17/E. He further deposed that on 21.11.2005, Constable Jagdish was sent at the shop of Fashion Tailor with the photograph of the deceased. On 22.11.2005, in the evening, Constable Jagdish informed PW 17 ACP Harpal Singh that body has been identified as that of Ashok. Constable Jagdish also informed PW 17 ACP Harpal Singh that the deceased was working somewhere in Uttam Nagar.
He identified shirt Ex P2, baniyan Ex P3, socks are Ex P4, underwear Ex P5, shoes Ex P6, pant Ex P7, one brown colour shawl Ex P8, one grey colour hawai chappal Ex P9, six bolts, two nuts and one key are Ex P10( collectively), brown clothe piece being the blood sample lifted from the spot Ex P11, earth material having darker stains in a plastic box being the blood stained earth lifted from the spot Ex P12, earth control lifted from spot Ex P13 and handkerchief is Ex P14.
State Vs. Kishan Dev 15
26. PW 18 Constable Balbir Singh deposed that on 27.11.2005, he joined the investigation with Inspector Ishwar Singh and ASI Nahar Singh. Accused took them to PVC near Tikri Village and pointed out the place where Lakhia and Shree had thrown the body of Ashok after dragging down the body from his Tempo No. DL-1LG- 1448 ( Canter). Accused also told them that Lakhia had thrown the rope in bushes at a distance of 4-5 paces. On search, a blue colour nylon plastic rope was recovered from the bushes near the spot at PVC Road, village Tikri. Accused immediately on seeing the rope identified the rope as the same rope which was put in the neck of Ashok and with which he was strangulated by Lakhia and Shree. Rope was kept in a clothe pullanda and sealed with the seal of ISD and seized vide memo Ex. PW 18/A.
27. He further deposed that on 19.01.2006, on the directions of investigating officer he took the exhibits, one blood sample of deceased, blood earth, earth control pullanda duly sealed with the seal of HSY, one envelope containing blood gauze piece and sample seals of HSY and AJ from malkhana and deposited at FSL Rohini.
28. PW 19 Irshad Ahmed deposed that in the year 2005, he was working as Satpal Ka Godown, behind Shiv Mandir, Matiala, Delhi. One driver also used to visit the godown. In the month of November, 2005, on one evening the police officials of Police Station Nangloi came in the godown and the labourers were taken to police station. He came to know at police station that the driver whose name was Ashok has been murdered. This witness was declared hostile and cross examined on behalf of State. In the cross examination conducted on behalf of State he denied the suggestion that he knew accused who used to visit the godown along with State Vs. Kishan Dev 16 deceased Ashok. He further denied the suggestion that on 18.11.2005 accused came to the godown and he called Ashok and took him along with him. He further denied the suggestion that he had not seen Ashok alive. He further denied the suggestion that police officials showed him the photograph of deceased Ashok and he identified him.
29. PW 20 Ashok Yadav deposed that in the year 2005, he was working at the godown of Mahabir near Nanak Ka Piao, Delhi as labour. On 18.11.2005 Canter was loaded by them and driver on the said Canter was accused Kishan Dev. On 26.11.2005, police officials brought accused Kishan Dev with them and made inquiries from him and recorded his statement. This witness was cross examined after the cross examination conducted on behalf of State, he deposed that he was not acquainted with the accused is correct. He denied the suggestion that he knew accused since he used to come at Mahabir's godown with his Canter.
30. PW 21 Munna deposed that in the year 2005, he was working at the Godown of Hans Raj at Nangli, Najafgarh, Delhi as labour for loading the goods ie empty bottles in the vehicle. This witness declared hostile and was cross examined on behalf of State. He admitted that on 18.11.2005 he had loaded empty bottles in Canter at their godown. He denied the suggestion that driver of that Canter was accused Kishan Dev and he identified him on 26.11.2005 when accused brought by police near their godown. He further denied the suggestion that he had told investigating officer that accused used to drive Canter. He further denied the suggestion that police recorded his statement on his dictation on 26.11.2005.
31. PW 22 Constable Jagdish Singh deposed that on 19.11.2005, he was posted at Police Post Tikri Border, Police Station Nangloi as State Vs. Kishan Dev 17 constable and on that day W/ASI Raj Bala, Duty officer called him at Police Station Nangloi and gave him four sealed envelopes containing copy of FIR to deliver the same at the office of Ilaqa Magistrate, DCP, Rajouri Garden, ACP Punjabi Bagh and Joint CP, SR, PHQ. He took the envelopes on official motorcycle no. DL-1SN-3636 and delivered the envelopes to the aforesaid officials.
32. PW 23 Sub Inspector Nahar Singh deposed that on 19.11.2005 he was posted at Police Post Tikri Border, Police Station Nangloi as Assistant Sub Inspector. DD No. 29 copy of which is Ex PW 23/A Police Post Tikri Border was marked to him which was regarding lying of dead body of a 35-40 years near field of Harkesh. Thereafter he along with Constable Ajit reached the spot where dead body of a unknown male aged about 35-40 years was lying. He called crime team at the spot. He called some near by persons to identify the deceased but no one could identify the deceased. He prepared rukka over DD No. 29 which is Ex PW23/B. He further deposed that on 22.11.2005, he along with Constable Ajit accompanied investigating officer to mortuary, Sanjay Gandhi Memorial Hospital where postmortem of the dead body was conducted. After the postmortem autopsy surgeon gave one pullanda containing handkerchief and other pullanda containing blood sample of deceased and third pullanda containing some flash pieces of deceased along with sample seal of hospital. Dead body was handed over to Constable Ajit for taking the same to Electric Cremation Centre Punjabi Bagh. On 27.11.2005, he again participated in the investigation with investigating officer and Constable Balbir, on that day accused was in police custody and he led them to PVC Road near Tikri Village and pointed out the place where dead body was thrown and investigating officer prepared pointing out memo State Vs. Kishan Dev 18 which is already Ex PW3/C.
33. PW 24 retired ASI Tech Davender Kumar deposed that on 04.12.2005 he was called by the Inspector Ishwar Singh Additional SHO Police Station Nangloi. He went to the police station and mechanically inspected Eicher Canter No. DL-1LG-1448 and found that on the rear side wheel three new buts and studs were fitted and on the wheel five nuts studs were fixed. He inspected the pullanda sealed with the seal of HSY containing three broken studs bolt and three studs bolt and were matched with the rear wheel of the said vehicle. After examination, he deposed that wheel nuts and the studs bolts likely to be of the said canter. He prepared inspection report which is Ex PW24/A.
34. PW 25 Head Constable Tarif Singh deposed that on 19/11/05, he was working as MHCM in PS Nangloi. On that day Insp Harpal Singh deposited six pullanda sealed with the seal of SSY and he made entry at Sr No. 6212 in this respect in register no. 19. Again on 22.11.05 Insp Harpal Singh deposited two sealed pullandas sealed with the seal of AJ one sample seal of AJ and unsealed clothe of Keshav ie shirt and pant and he made entry at register no. 19 vide Sr No. 6219. Again on 25.11.05, Sub Inspector Sita Ram deposited Eicher Canter no. DL-1L-C-1448 and article recovered in personal search memo of accused Krishan Dev and the entry of the above articles was made in register no. 19 vide Sr No. 6230.
He further deposed that again on 27.11.05, Addl SHO Insp Ishwar Singh deposited sealed pullanda containing rope of nylon as per the memo sealed with the seal of ISD and he made entry regarding deposit with malkhana PS Nangloi at register no. 19 vide Sr No. 6234. All these five pullandas were sent to FSL Rohini through Ct Balbir on 19.1.06 vide RC No 9/21/06 and he made entry on column no. 6 and 7 in front of entry no.6219 State Vs. Kishan Dev 19 of register no. 19. Above pullandas were received from FSL Rohini along with sealed envelope containing report on 26.5.06 through Ct Virender singh and he made entry in this regard in front of entry no. 6212. The extract of all entries collectively is Ex PW25/A. The copy of RC No. 9/21/06 is Ex PW25/B. Copy of receipt of pullanda given by FSL Rohini is Ex PW 25/C.
35. PW 26 Azad Singh deposed that he was chowkidar at the godown of Jangi. He did not recollect the date but perhaps it was Nov.2005 when one canter driven by its driver who is the accused and he took the mall( goods) i.e. empty bottles from the godown. He did not know the name of the owner of the godown to which he was to make delivery.
36. PW 27 Inspector Dharampal deposed the version as deposed by PW 23 Sub Inspector Nahar Singh.
37. PW 28 Sub Inspector Sita Ram deposed that on 25.11.2005, he was posted at PP Tikri Borader PS Nangloi as Sub Inspector. On that day, he along with Constable Devender, Constable Bhagirath and public witness Sukh Shekhar Mehto Kishan went to the godown of Sunny at Swarn Park, Mundka for the search of the accused. On reaching at the said godown there was a vehicle Canter bearing no. DL-1C- 1448 and one person was sitting in Canter on the driver seat and he is the accused namely Kishan Dev. On the pointing out of Sukh Shekhar, he with the help of accompanying staff over powered the accused and he interrogated him and recorded his disclosure statement which is Ex PW24/A wherein accused confessed that he had committed the murder of deceased with his companion and the accused also disclosed that he can point out the place of incident and can get recover the rope. He arrested the accused vide State Vs. Kishan Dev 20 arrest memo Ex PW3/A. He conducted his personal search vide memo Ex PW3/B. He seized the Canter vide memo Ex PW3/D. Accused in pursuance to his disclosure led them to PVC Road, Nangloi, Delhi i.e. place of incident and pointed out the same and in this regard he prepared memo which is Ex PW3/C. He identified the Canter as Ex P1.
He further deposed that on 1.12.2005, he along with his staff and accused went outstation and reached at village Dhaddha where accused pointed out the house of Lakhia but Lakhia could not find and he prepared memo in this regard which is Ex PW29/B. He also recorded statement of wife of accused Krishan Dev and his accompanying staff. During investigation he also recorded statement of other witnesses on 23.11.2005, 25.11.2005, 26.11.05 and 01.12.2005. He further deposed that he was entrusted with the present case on 23.11.2005 and investigation remained with him till 03.12.2005. During the course of investigation, he had also recorded statement of witnesses and after 03.12.2005 case file was handed over to Inspector Ishwar Singh.
38. PW 29 Assistant Sub Inspector Devender Singh deposed that on 25.11.2005, he participated in investigation along with SI Sita Ram, Ct Bhagirath and public witness Sukh Shekhar Mehto Kishan went to the godown of Sunny at Swarn Park, Mundka for the search of the accused since he saw him in company of deceased. On reaching at the said godown there was a vehicle Canter bearing no. DL-1LC- 1448 and the accused Kishan Dev. On the pointing out of Sukh Shekhar, they over powered the accused and investigating officer interrogated him and recorded his disclosure statement Ex PW24/A wherein accused confessed that he had committed the murder of deceased with his companion and the accused also disclosed that he can point out the place of incident and can get recover the rope. Investigating officer seized the aforesaid Canter vide State Vs. Kishan Dev 21 memo Ex PW3/D. Accused in pursuance to his disclosure led them to PVC Road, Nangloi, Delhi i.e place of incident and pointed out the same and investigating officer prepared memo Ex PW3/C. PLEA AND DEFENCE OF ACCUSED
39. In his statement under Section 313 Cr.P.C the accused has either denied the prosecution case or has expressed his ignorance about the incriminating evidence emerging from prosecution case put to him by way of different questions. He further stated that he is innocent and have been falsely implicated in this case by the police. The accused did not lead any evidence in defence.
ARGUMENTS AND FINDINGS
40. I have heard the learned Additional Public Prosecutor for the State, learned counsel for the accused and have gone through the record of the case and relevant provisions of law. 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 as to the cases based on circumstantial evidence.
LEGAL POSITION AS TO THE CASES BASED ON CIRCUMSTANTIAL EVIDENCE
41. In Sunder @ Lala and Ors. Vs. State 2009 VII AD (Delhi) 615 it was held as under:
State Vs. Kishan Dev 22 " 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. "
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)). The evidence has not to be considered merely as a number of bits of evidence, but the whole of it together and the cumulative effect of it has to be weighed. (See Dukharam Nath V Commercial Credit Corpn Ltd AIR 1940 Oudh 35). No distinction has, therefore, to be made between circumstantial and direct evidence. {See Miran Baksh V Emperor AIR 1931 Lah 529 and Thimma V State of Mysore (1970) SCC (Cr) 320}. The court must satisfy itself that the cumulative effect of the evidence, led by the prosecution, establishes the guilt of the accused beyond reasonable doubt. (See Shankar Bhaka Narsale V State of Maharashtra AIR 1972 SC 1171 and Chanan Singh V State of Haryana AIR 1971 SC 1554) 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 State Vs. Kishan Dev 23 (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 Shivu & Anr. v R. G., High Court of Karnataka, 2007 Cr LJ 1806 (SC)) In Raju Vs. The State by Inspector of Police - AIR 2009 SC 2171, as regards circumstantial evidence, the Hon'ble Apex Court observed as under:
"7. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
8. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State State Vs. Kishan Dev 24 of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence.
Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".
9. In Padala Veera Reddy v. State of A.P. and Ors. (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 the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
10. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully State Vs. Kishan Dev 25 established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
11. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted".
12. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
13. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as State Vs. Kishan Dev 26 not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
14. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must' or 'should' and not 'may be' established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
15. These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261), Kusuma Ankama Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008) and Manivel and Ors. v. State of Tami Nadu (Criminal Appeal No.473 of 2001 disposed of on 8.8.2008)."
State Vs. Kishan Dev 27 In a recent pronouncement in Musheer Khan alias Badshah Khan Versus State of Madhya Pradesh 2010-JT-1-535 SC relied upon by learned counsel for accused Narvinder Singh following observations were made by Hon'ble Supreme Court:
"(46) In a case of circumstantial evidence, one must look for complete chain of circumstances and not on snapped and scattered links which do not make a complete sequence.
(47) This court finds that this case is entirely based on circumstantial evidence. While appreciating circumstantial evidence, the court must adopt a cautious approach as circumstantial evidence is "inferential evidence"
and proof in such a case is derivable by inference from circumstances.
(48) Chief Justice Fletcher Moulton once observed that "proof does not mean rigid mathematical" formula since "that is impossible". However, proof must mean such evidence as would induce a reasonable man to come to a definite conclusion. Circumstantial evidence, on the other hand, has been compared by Lord Coleridge "like a gossamer thread, light and as unsubstantial as the air itself and may vanish with merest of touches."
The learned Judge also observed that such evidence may be strong in parts but it may also leave great gaps and rents through which the accused may escape. Therefore, certain rules have been judicially evolved for appreciation of circumstantial evidence.
(49) To my mind, the first rule is that the facts alleged as the basis of any legal inference from circumstantial evidence must be clearly proved beyond any reasonable doubt. If conviction rests solely on circumstantial evidence, it must create a network from which there is no escape State Vs. Kishan Dev 28 for the accused. The facts evolving out of such circumstantial evidence must be such as not to admit of any inference except that of guilt of the accused. [see Raghav Prapanna Tripathi and others V. State of U.P (AIR 1963 SC 74)].
(50) The second principle is that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person than the accused. [see: State of U.P V. Ravindra Prakash Mittal (1992 Crl. L. J 3693 (SC)]."
MOTIVE :
42. Motive is a relevant factor in all criminal cases whether based on the testimony of eyewitnesses or circumstantial evidence [See State of Uttar Pradesh v Babu Ram 2000 Cr LJ 2457 (SC)]. In a case of circumstantial evidence, motive helps in the process of presumptive reasoning. However, by itself it is not sufficient to convict a person [See Chet Ram v State 1997 Cr LJ 1029 (Del) (DB)].
In Tarsem Kumar v Delhi Admn 1995 Cr LJ 470 (SC), JT 1994 (5) JT 264 (SC), the Supreme Court has laid down that where the case of the prosecution has been proved beyond all reasonable doubt on the basis of material produced before court, the motive loses its importance, but in a case based on circumstantial evidence, motive for committing the crime on the part of the accused assumes great importance. It was further emphasised that if each of the circumstances proved on behalf of the prosecution is accepted by the court for the purpose of recording a finding that it was the accused who committed the crime in question, then even in State Vs. Kishan Dev 29 the absence of any proof of a motive for commission of such crime the accused can be convicted. [See also State of Madhya Pradesh v Digvijay Singh AIR 1988 SC 1740, 1981 Cr LJ 1278; Arun Kumar v State 1996 Cr LJ 2280 (Del) (DB)].
43. The motive of the crime in the present case is, the alleged strained relations between the wife of the accused and the accused which led the victim Ashok to call a panchayat in the village to persuade the accused to behave well with his wife, who is sister of deceased victim. But the wife of accused PW- 8 Rinku has not supported the prosecution and is a hostile witness. She has stated that there was no dispute between her husband (accused Kishan Dev) and her brother (victim Ashok). She denied the suggestion in the cross-examination conducted on behalf of State that she has stated to the police that her husband Kishan Dev used to harass her or that she told this fact to her brother or that her brother told her that he would make Kishan Dev to understand or that her brother came to her matrimonial home or that he made Kishan Dev understand in the presence of four persons or that her brother insulted her husband or that her husband promised her brother that he would not harass her or that her husband later on started harassing her. Similarly, PW-6 Sanjay Mehto, the brother of deceased Ashok is also a hostile witness and has not supported the prosecution case as to motive of the crime. He has stated in the examination in chief that accused Kishan Dev was having cordial relations with his sister. In the cross-examination he denied the suggestion that victim Ashok told him that in order to save the matrimonial life of his sister Rinku, State Vs. Kishan Dev 30 he would talk to accused Kishan Dev. This witness has not supported the prosecution either in the examination in chief or in the cross-examination as to the prosecution case regarding motive of the accused in commission of the crime. Therefore, the prosecution in the present case has not been able to prove the motive of the crime which in a case based on circumstance evidence is an important aspect of the case. However, in the light of the case law referred before, the absence of proof of motive by the prosecution in this case, cannot be said to be fatal for the prosecution case.
LAST SEEN EVIDENCE :-
44. The theory of being last seen together is one where two persons are seen together alive and after an interval of time, one of them is found alive and the other dead. {See, Rajan Vs. State of Kerala (2000) Cr.L.J 3531 (Ker) (DB)}. Though, it is ordinarily believed that when a person is accused of committing murder, the fact that the accused and the deceased were last seen together in the company of each other, and the failure of the accused to satisfactorily account for the disappearance of the deceased is considered a circumstance of incriminating character. However, that itself is not sufficient unless the same is established beyond reasonable doubt that the accused must have caused the death of the deceased. {See, Chandraiangari Ananthareddi and others Vs State of Andhra Pradesh (1996) Cr.L.J 2109 (AP) (DB), Arjun Malik Vs State of Bihar (1994) Supp. 2 SCC 372, Didar Singh Vs State of Haryana (1993) Supp.2 SCC 557}
45. The contention on behalf of the accused is that PW-3 Sukh Shekhar being relative of the victim did not state anything about the accused and victim last seen by him together. So it is not proved that accused and victim were seen together lastly and accused is entitled to be State Vs. Kishan Dev 31 acquitted.
46. Learned Additional Public Prosecutor, on the other hand, has argued that PW-1 Ram Chander and PW-3 Sukh Shekhar have proved that victim was last seen with the accused and co-accused Lakhiya and Shree in the canter being driven by accused, so this important circumstance is proved by the prosecution.
47. PW-3 Sukh Shekhar is main witness produced by the prosecution to prove the accused and victim were last seen together. PW-3 has stated that on 18.11.2005 at about 7.00 pm, Ashok alongwith Kishan Dev and Lakhiya and Shree came to a tea shop in a canter (small truck), near the road of kabari gali. Ashok met him there and he told him that he was going to Shahdara alongwith accused Kishan Dev, present in the court, and with Lakha and Shree. He told him to inform this to Ram Lal, who used to live with Ashok. PW-3 Sukh Shekhar also stated that he told this fact to Ram Lal thereafter, Ashok did not return. On the next date, Ram Lal came to him in the evening and informed that Ashok had not returned. Thereafter, he alongwith Anil went to the place of employment of Ashok. But Ashok was not found there. It was told that Ashok was not attending his duties from Friday evening when PW-3 Sukh Shkehar Mehto had last seen him going with the accused. There is nothing in the cross-examination of PW-3 which may discredit the statement made by him in his examination in chief.
48. PW-11 Shri Ram Lal Mehto, has stated that deceased Ashok used to reside with him in the house of Kishan. Ashok was driver of Satpal, in the godown belong to Satpal. Ashok used to leave in the morning and used to come back every day in the evening. On 18.11.2005 Ashok had not come back at home. He (PW-11) went to the house of Sukh Shekhar Mehto State Vs. Kishan Dev 32 who was relative of Ashok. Sukh Shekhar Mehto told him that Ashok alongwith Kishan and Lakhiya and one other person went to Shahdara in a tanker. Thereafter, he (PW-11) came back home and went to sleep. Therefore, the statement of Sukh Shekhar (PW-3) is corroborated by PW-11 Sh. Ram Lal Mehto and the prosecution has been able to prove the circumstantial evidence of victim Ashok seen with accused Kishan Dev and co-accused Lakhi @ Lakhia and Shree going in canter being driven by accused Kishan Dev.
RECOVERY OF NUT BOLT FROM SPOT :-
49. The nut bolts of the rear tyre of the canter in question were recovered from the spot vide memo Ext. PW17/B( collectively). During investigation, the expert opinion was obtained by Investigating Officer regarding the nut bolts by moving application and the expert PW-24 retired ASI (Tech) Devender Kumar who mechanically inspected the canter and nut bolts and gave inspection report Ex. PW-24/A in which he has opined that the three nut bolts on the right rear wheel of the canter in question are new and the three nut and stud recovered from the spot looked to be of the same vehicle. Therefore, the incriminating circumstance of three stud bolts/nut bolts of the rear tyre of the canter found at the spot where the dead body of the victim Ashok was found and since the three nut bolts of the rear right side tyre of the canter were new, the nut bolts recovered from the spot are connected with the vehicle in the question. However, recovery of nut bolts may be an incriminating circumstance connecting the canter in question and the spot where dead body of the victim was found, but this evidence is of the worth of chance evidence as the purpose and reason of leaving the three nut bolts at the spot could not be reasonably understood. There is no evidence on record to suggest that three nut bolts found at the State Vs. Kishan Dev 33 spot were useless so these were changed by the accused with the new one and the old ones were kept in the truck with the deceased or either of the accused.
RECOVERY OF NYLON ROPE
50. According to the prosecution case, the nylon rope Ext P-15 was got recovered by accused from the bushes near the spot at PVC road near Village Tikri. This recovery of nylon rope of blue colour was got recovered by accused while in custody of the police, after he gave disclosure statement Ex. PW24/A that after the murder of the victim by strangulation with the help of nylon rope, the accused persons had thrown the nylon rope in the bushes. As per statement of PW-18 Ct. Balbir Singh this nylon rope was kept in a cloth pullanda and sealed with the seal of ISD by the IO and the sealed pullanda was seized vide memo Ex. PW-18/A. This statement is corroborated by IO Ishwar Singh. Therefore, the recovery of weapon of offence i.e. nylon rope with the help of which the victim was alleged to be strangulated is proved to be recovered at the instance of accused from the bushes vide memo Ex PW-18/A. ACCUSED WORKING AS DRIVER OF CANTER :-
51. The learned counsel for accused has argued that PW-13 Kasturi Lal, owner of the canter produced by the prosecution, has failed to prove that the accused was driver of the canter in question as in the cross- examination he has stated that his son used to look after the canter. Ld. Addl. PP on the other hand, has argued that the accused when arrested was in the godown and was in the canter in question. So besides the statement of PW-13 Kasturi Lal, this fact, also shows that accused was State Vs. Kishan Dev 34 driver of the canter in question.
52. I have carefully heard the respective arguments and have gone through the evidence on record. PW-13 Sh. Kasturi Lal, the registered owner of the canter in question bearing registration No. DL-1LC-1448 has stated that he has employed Kishan Dev, accused then present in the court, at his said canter. True, in the cross-examination, on behalf of accused, this witness has stated that his son Sunil was taking care of the canter at the relevant time. He also stated in the cross-examination that since his son was looking after affairs of the vehicle, he could not tell whether accused Kishan Dev was driver at the relevant time. Therefore, there is somewhat contradiction in the statements of PW-13 made in examination-in-chief and the cross-examination as to the accused being driver of the canter in question. But PW-20 Ashok Yadav, has specifically, stated in his statement that on 18.11.2005 canter was loaded by them and driver of the said canter was Kishan Dev, who was the accused, then present in the court. Similar statement is made by PW-3 Sukh Shekhar Mehto. Further, as pointed out by Ld. Addl. Public Prosecutor the accused was arrested vide arrest memo Ex. PW-3/A. PW-3 Sukh Shekhar Mehto has proved the arrest memo of accused Ex. PW-3/A and has stated that his personal search was conducted vide memo Ex. PW-3/B. The Investigating Officer PW-28 SI Sita Ram has also corroborated with the statement of PW-3. The arrest memo Ex. PW-3/A shows that accused was arrested at Sunny Godown, Mundka, Nangloi Delhi. PW-29 ASI Devender Singh who is also witness of arrest of accused at the said place has stated that on 25.11.2005, he alongwith SI Sita Ram, Ct. Bhagirath and public witness Sukh Shekhar Mehto went to godown of Sunny at Sawan Park, Mundka. On reaching the said godown they saw vehicle canter bearing No. DL-1LC-1448 and the accused, then present in the court in judicial custody.
State Vs. Kishan Dev 35 On the pointing of Sukh Shekhar, they overpowered the accused and IO recorded his disclosure statement Ex PW-29/A. He also stated that IO arrested the accused vide memo Ex. PW-3/A and conducted his personal search vide memo Ex. PW-3/B. The canter was seized vide memo Ex. PW-3/D. Therefore, the totality of the prosecution evidence on record, clearly shows that accused was working as driver on the canter in question and was arrested from the Sunny Godown, Mundka and the canter was also seized from there. Therefore, the prosecution has been able to prove that accused was driver on the canter in question belonging to Sunny Godown Mundka in which the accused, deceased, Lakhi @ Lakhiya and Shree were last seen together prior to recovery of dead body of deceased Ashok.
MEDICAL AND FORENSIC EVIDENCE :-
53. The postmortem report of deceased Ashok Ex. PW-7/A shows that cause of death of victim Ashok was asphyxia as a result of pressure over neck structure subsequent to strangulation. Therefore, the postmortem report corroborates with the recovery of nylon rope with the help of which the two of the accused persons are alleged to have strangulated the deceased. Further, the FSL report Ex. PX- 1 shows that the blood was detected on brown cloth piece, from earth material/bloodstained earth and brown gauze cloth piece and as per report of the biological division Ex. P-2, the blood on the earth material and piece of cloth and bloodstained gauze cloth was on human blood but the blood group being 'B' could only be ascertained of bloodstained gauze cloth. In the absence of any confirmation that the blood of the deceased or any of the accused persons was of 'B' group, the report Ex. P-2 is not of conclusive value. However, the blood found on the earth collected from the spot by Investigating Officer and State Vs. Kishan Dev 36 the clothes was proved to be of human blood and it can be presumed of the deceased, particularly, when the photographs taken by the Crime Branch Ex. PW-10/A-1 to A-12 clearly show the deceased wearing bloodstained clothes and blood lying near and on his body.
ADDITIONAL LINK / MISSING LINK IN THE CHAIN OF CIRCUMSTANCE
54. 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 of circumstances thereby fortifying the prosecution case. {See Yogesh Karki v. State of Sikkim 2006 Cr LJ 509 (Sikkim) (DB).} 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 same 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; 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 State Vs. Kishan Dev 37 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).)
55. PW-3 Sukh Shekhar and PW- 11 Ram Lal Mehto have proved that the accused, co-accused Lakhiya @ Lakhi and Shree came to the Tea shop in Canter alongwith deceased Ashok on 18.11.2005, but this fact is denied by the accused in his statement u/Sec. 313 CrPC. Therefore, this false statement of accused should go against him as an additional link in the chain of circumstances. Further, the accused, who went with the deceased in Canter did not inform anybody about victim Ashok or what happened to him, so the failure of accused to explain what happened with deceased Ashok despite the fact that accused was last seen with the victim alongwith co-accused persons also provides, in view of above case law, a missing link in the chain of circumstance evidence against the accused produced by prosecution in this case. The prosecution by credit worthy evidence has also proved the recovery of nylon rope/weapon of offence, got recovered by the accused after his disclosure statement was recorded and this recovery was affected from the bushes as pointed out by the accused, but accused has denied this fact in his statement u/Sec. 313 CrPC and this false statement of accused also goes against him and provide a missing link in the chain of circumstances.
CRUCIAL CIRCUMSTANCE
56. The above discussion shows that the accused alongwith two co-accused persons and victim Ashok were seen last together on the Canter being driven by the accused and accused has failed to explain as to State Vs. Kishan Dev 38 what happened with the deceased and how they departed. Further, the dead body was found lying in the field near the road and fits in very well in the prosecution case that the dead body was thrown from the Canter after causing death of the victim in the Canter and thereafter, it was moved somewhat away from the road.
MURDER OR CULPABLE HOMICIDE NOT AMOUNTING TO MURDER
57. From the above discussions, I am of the view that the prosecution has been able to prove its case against the accused for commission of offence of culpable homicide. The question now, is whether the offence committed by accused is culpable homicide not amounting to murder punishable u/Sec. 304 IPC or the murder which is made punishable u/Sec. 302 IPC.
58. As per prosecution case, the nylon rope in question was used by co-accused persons in strangulation of victim and accused as per his disclosure statement has put his handkerchief in the mouth of deceased at the relevant time, the accused was driving the canter in question when co- accused persons were strangulating the victim. Therefore, though there is participation of accused in crime, but the main culprits who strangulated the victim were co-accused Lakhiya and Shree. However, while the co-accused persons were strangulating the victim, he having put his handkerchief in the mouth of deceased which fact is also clear from the photograph of the victim Ex. PW 6/A showing handkerchief in the mouth of the victim, that he (accused Kishan Dev) is contributing to the act of co-accused persons and can certainly be attributed with knowledge that his act would help in causing death of victim, who was being strangulated by two accused persons. Therefore, in the given facts and circumstances of the case, I am of the view that accused Kishan Dev is liable for culpable homicide not amounting State Vs. Kishan Dev 39 to murder u/Sec. 304 IPC and not of murder and accordingly, the prosecution has been able to prove its case against the accused beyond reasonable doubt for the offence under Section 304 IPC against accused Kishan Dev.
RESULT OF THE CASE
59. In view of the above discussions, I hold that prosecution has been able to prove its case beyond reasonable doubt against the accused Kishan Dev u/Sec. 304 IPC. The accused Kishan Dev is convicted u/Sec. 304 IPC. Let the accused Kishan Dev be heard on the point of sentence.
As regards, accused Lakhi @ Lakhiya, who is Proclaimed Offender, the evidence recorded in this case shall be read u/Sec. 299 CrPC against him and the case would revive against him as and when he is arrested and produced before the court.
Regarding, accused Shree as and when his whereabouts are made known to the court or he is arrested or produced before the court, the case shall commence against him.
SHO concerned to make afresh efforts to trace the addresses of accused Lakhi @ Lakhiya and Shree. Copy of this judgment be sent to SHO concerned.
Judgment be sent to server (www.delhidistrictcourts.nic.in).
Announced in the open court on
31st day of October 2011 (S. K. SARVARIA)
DISTRICT JUDGE & INCHARGE (NW)
ADDITIONAL SESSIONS JUDGE
ROHINI COURTS, DELHI
State Vs. Kishan Dev
40
IN THE COURT OF S.K. SARVARIA DISTRICT JUDGE & INCHARGE (N/W), ADDITIONAL SESSIONS JUDGE:
ROHINI COURTS DELHI Session Case No. 98/10 State VERSUS (1) Kishan Dev @ Krishna S/o Parmeshwar Mehto R/o Village Dhatha District Samastipur, Bihar (2) Lakhi @ Lakhiya S/o Ram Japo R/o Village Dhatha District Samastipur, Bihar P.S. Rosada ( Proclaimed Offender) FIR NO: 1134/05 P.S : Nangloi U/s : 302/34 IPC ORDER ON SENTENCE Vide my judgment of dated 31.10.2011 the convict/accused Kishan Dev @ Krishna was convicted under Section 304 IPC.
Learned Additional Public Prosecutor Sh. Sanjay Kumar has argued for deterrent punishment to the accused/convict.
Arguments on behalf of the accused/convict addressed by Sh. Kundan Kumar, Advocate for the convict/accused are that the convict/accused belong to poor family and he is sole bread earner of his family. It is further argued that convict/accused is having aged parents to lookafter them. The wife of convict/accused and her brother/brother of deceased have not supported the prosecution but have supported accused. So lenient view may be taken against him and he may be sentenced to the period of detention already undergone during the investigation and trial of this case.
State Vs. Kishan Dev 41 I have heard Learned Additional Public Prosecutor for the state and learned counsel for the convict/accused and have gone through the record of the case.
Nominal roll of the accused was also called from Jail which confirm that convict/accused Kishan Dev is in judicial custody since 05.12.2005.
In view of the above submissions made by learned counsel for convict/accused Kishan Dev and the fact that wife of convict/accused who is sister of deceased and brother of deceased have deposed in favour of convict/accused Kishan Dev,. I sentence the Kishan Dev to undergo rigorous imprisonment for five years ten months and six days for the offence under Section 304 IPC. In addition accused/convict Kishan Dev is also directed to pay fine of Rs.5000/-( Rs Five Thousand Only) under Section 304 IPC. In default of payment of fine convict Kishan Dev shall go simple imprisonment for nine days.
The period of detention of convict/accused Kishan Dev during investigation and trial of this case shall be set off against the term of imprisonment imposed against the convict by this order, as provided under Section 428 CrPC. Since, the term of imprisonment awarded to the convict is already undergone by him, they need not be sent to jail provided he deposits the fine imposed upon him.
Judgment and order on sentence be sent to server (www.delhidistrictcourts.nic.in). Copy of judgment and order on sentence be supplied to convict/accused Kishan Dev free of cost.
File be consigned to record room.
Announced in the open court on 02.11.2011 (S. K. SARVARIA) DISTRICT JUDGE & INCHARGE (NW) ADDITIONAL SESSIONS JUDGE ROHINI COURTS DELHI State Vs. Kishan Dev