Delhi District Court
State vs . : 1). Dinesh on 19 August, 2016
IN THE COURT OF ASJ - 03 NORTH ROHINI COURTS:DELHI
Sessions Case No:58069/16
FIR No. : 676/2012
U/s : 302/34 IPC
P.S. : Narela
State Vs. : 1). Dinesh
S/o Sh. Batesur
R/o Vill. Baseu, PS:
Bani Gunj, Hardoi, UP.
2). Arvind
S/o Sh. Megu Nath
R/o Vill. Baseu, PS:
Bani Gunj, Hardoi, UP.
3). Sunil Kumar
S/o Sh. Shishpal
R/o Vill. Baseu, PS:
Bani Gunj, Hardoi, UP.
Offence complained of : 302/34 IPC
Plea of accused : Pleaded not guilty
Final Order : Convicted
Date of committal : 20.03.2013
Date of Judgment : 19.08.2016
J U D G M E N T:
1. On 30.12.2012 at about 1:35 pm an information was received from police control room that near the round about DSIDC, Narela the dead body of Munshi Yadav who was State Vs. Dinesh etc. SC No. 58069/16 :: 1 ::
missing from his house since yesterday, is found lying near the round about near Jhuggies of DSIDC, Bhor Garh, Narela. On this information DD No.25A was recorded SI Mahavir Singh along with HC Jasbir Singh reached the spot. They found the dead body of the 52 years male having injury marks on his face, a cream colour shawl found tied in his neck. Four cigarettes butts, four plastic tumblers in broken condition were also found there. On the spot statement of Rama Yadav was recorded. He informed that he is residing in the house of Ranbir Saini in Bhograh village along with his family. His younger brother Ram Achal is selling vegitable and his elder brother Munshi Yadav now deceased was working in a factory as a labourer. Munshi Yadav was unmarried and was living with him. On 12.12.2012 his brother returned home early from the factory and told that there was less work in the factory. In the evening his brother had gone to sell vegitables on a rehri. At about 6:30 pm at Bhorgarh Chaupal his brother Munshi and Dinesh met him. Dinesh earlier used to work in the factory at DSIDC Narela. On inquiry they told him that they are going to eat and drink. Thereafter his brother did not return. He made a telephone call on the mobile phone of Dinesh but Dinesh answered that he has no information about Munshi. He searched for his brother but could not trace him. On State Vs. Dinesh etc. SC No. 58069/16 :: 2 ::
13.12.2012 also he tried to take information about his brother from Dinesh but he did not give any satisfactory reply and even on calling did not come. They continued searching for Munshi and at about 1 pm they found the dead body near the round about situated near Vijaya Bank, Bhorgarh. Thereafter, they gave the information on 100 number. Dinesh was apprehended who made the disclosure statement that he along with accused Arvind and Sunil committed the offence. The cigarette butts and blood samples lifted from the spot were sent to FSL for DNA finger printing. The report was received and the DNA matched.
DNA of the deceased and the accused persons matched on the cigarette butts found at the spot. After completion of investigation charge sheet was filed. Ld. MM after complying with provisions of section 207 Cr.PC committed the case to the Sessions Court as the offence punishable u/s 302 IPC is exclusively triable by the Sessions Court. All the accused were charged for the offence punishable u/s 302 r/w 34 IPC by my Ld. Predecessor to which they pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence.
2. Ram Achal Yadav was examined as PW1. He deposed that he is selling vegitables for the last 7 years on Rehri at Bhorghar. On 12.12.2012 his brother Munshi Yadav went for his State Vs. Dinesh etc. SC No. 58069/16 :: 3 ::
duty in Industrial area Narela. Munshi Yadav returned from his work place at about 1 pm as there was no work in his office. Munshi Yadav thereafter remained at home. Ram Achal Yadav went for selling vegitables at 4:00 pm at that time Munshi Yadav was sleeping in the shop with Rama Yadav situated at the house. When Ram Achal Yadav returned at about 7:30 pm his son Karan and daughter Anjali told that Munshi Yadav had gone with Dinesh at about 6:30 pm. Thereafter, this witness again left home and returned at about 10 pm. Rama Yadav told this witness that Munshi Yadav had not returned home. Rama Yadav made call on the mobile of Dinesh but he did not give any satisfactory reply. This witness along with Rama Yadav and 56 other residents tried to locate Munshi Yadav but they could not trace him and returned home at about 1 am. In the morning at about 5:00 am some passersby came to their house and informed that they saw one person lying on the road in unconscious condition. On this information they again went to Industrial Area Bhorgarh but could not trace any such person. At 7 am on 13.12.2012 they went to the factory of Balram. They told Balram the entire facts and then went in search of Munshi Yadav in the Industrial Area. This witness then again called to Dinesh on his mobile No.9891553713 but Dinesh told that he has no State Vs. Dinesh etc. SC No. 58069/16 :: 4 ::
information about Munshi Yadav. They continued search for Munshi Yadav and when they reached on the circle of Vijaya Bank they saw one dead body in the field. They identified dead body as of their brother Munshi Yadav. They made call at 100 number. They saw wound on the face and also that he was strangulated with the help of Shawl which ws found around the neck of Munshi Yadav. He identified the dead body of his brother vide document Ex.PW1/A before post mortem. Police arrived at the spot. His statement was also recorded. The witness identified Dinesh as the person who used to come to their house. Witness has also identified the shawl which was found wrapped around the neck of the deceased.
3. During cross examination he was confronted with his statement where it was not mentioned that his daughter Anjali and son Karan informed him that his brother Munshi had not come at home yet, however, it was mentioned that Rama Yadav informed him that Munshi Yadav had not returned home. The distance between his house and Bhorgarh is about 45 minutes walking distance. During night they had not gone towards agricultural fields in search of deceased and only searched on the road. He denied the suggestion that Munshi Yadav had not gone with Dinesh. Police was not with them when they were State Vs. Dinesh etc. SC No. 58069/16 :: 5 ::
searching for deceased. Police came at about 1:30 pm. He stated that he does not know Sunil. He had seen him in the court only and before that in police chowki. He stated that he had never seen Sunil in the company of his brother Munshi or Dinesh. He stated that there was no enmity between him and his deceased brother. He denied that he is deposing falsely.
4. Lady HC Krishna Kumari was examined as PW2. On 13.12.2012 she was working as duty officer from 8 am to 4 pm at PS: Narela. On receiving information about the dead body of Munshi Yadav, she recorded DD No.25A which was assigned to SI Mahavir. The true copy of the DD No.25A is Ex.PW2/A.
5. HC Jasbir was examined as PW3. On 13.12.2012 on receiving DD No.25A this witness along with SI Mahavir reached the spot. They found a shawl wrapped around the neck of dead body and there were signs of wounds on his face. His name was revealed as Munshi Yadav. SI Mahavir recorded statement of Rama Yadav and prepared rukka. This witness took the rukka to police station and got the FIR registered, thereafter he came back to the spot and handed over copy of FIR and original rukka to SI Mahavir.
6. During cross examination he stated that they reached at the spot at 1:40 pm. Many people were there on the spot. Rama State Vs. Dinesh etc. SC No. 58069/16 :: 6 ::
Yadav met IO there. He does not know if IO recorded the statement of other relatives. He does not remember the colour of shawl found wrapped around the neck of the dead body. Site plan was not prepared at his instance. He did not sign any document on the spot. He denied the suggestion that he did not take the rukka.
7. Rama Yadav was examined as PW4. He deposed that he along with his family and elder brother Munshi Yadav and Rama Achal Yadav were residing in the same house. They were in the business of selling vegitables and their elder brother Munshi Yadav was working as labourer at DSIDC Narela. Munshi Yadav was bachelor. On 12.12.2012 he left his house at about 5 pm along with his rehri for selling vegitables leaving Munshi Yadav at home. On that day Munshi Yadav returned home at about 1 pm as there was no work in the factory. At about 6:00 or 6:30 pm Dinesh met him at Chaupal of village Bhorgarh, Narela and asked this witness about Munshi Ram. This witness told that Munshi Ram is at home. Dinesh left telling this witness that he is going to the house of this witness. Then accused Dinesh and his brother Munshi Ram came at Bhorgarh Chaupal and told him that they were going for drink and would come back soon. At about 10:00 pm he returned home till that State Vs. Dinesh etc. SC No. 58069/16 :: 7 ::
time Munshi Yadav had not returned home. This witness along with his brother Ram Achal Yadav went in search of Munshi Yadav. This witness also made call to Dinesh on his mobile phone and inquired about his brother. Dinesh told them that he had left his brother Munshi at Vijaya Bank, Narela. They went to the Vijaya Bank and also at other places upto 12/12:30 night but could not trace Munshi Yadav. They made calls to Dinesh again and again but he did not give any satisfactory reply. Thereafter they went to sleep. Next day at 5 am some neighbour informed them that while returning home he has seen a person lying near Peer Baba in the factory area Narela. This witness along with his brother and people from locality went near Peer Baba and searched for his brother but could not found him. Then they continued searching his brother but could not trace him. They went to PS: Narela to lodge report but police asked them to come in the evening along with the photograph of the brother and in the meanwhile continue searching. While searching for their brother at about 1:30 pm they reached near Vijaya Bank square. There this witness has gone for urinating near bushes. After urinating when he took a turn he noticed a dead body lying in the field near Vijaya Bank. This witness made a call at 100 number from the mobile phone of Balram. Police came there.
State Vs. Dinesh etc. SC No. 58069/16 :: 8 ::
This witness noticed wound on the face of his brother and he was strangulated by wrapping a shawl around his neck. Police recorded his statement Ex.PW4/A. Dead body was removed to BJRM hospital. After identification post mortem was conducted. The memo regarding identification is Ex.PW4/B. This witness noticed that there were plastic tumblers and cigarettes butts lying on the spot and it seems as if somebody had taken liquor there. This witness has identified Dinesh and also the shawl.
8. During cross examination this witness was confronted with his statement recorded by the police where it was not found mentioned that he left home with his rehri at 5 pm or that accused Dinesh met him at 6:00/ 6:30 pm at Chaupal of village Bhorgarh, Narela or that he told Dinesh that his elder brother is at home or that Dinesh left his rehri telling that he is going to the house of this witness or that the accused and his brother came at Bhorgarh Chaupal and told that they are going for drink and will come soon. However, it is mentioned that at about 6:30 pm his brother Munshi Yadav and Dinesh met him near Chaupal and on inquiry they told this witness "Khaney peeney ja rahe hain". The witness stated that he does not know Sunil. He also stated that as per his knowledge his brother did not have any grudge or grievance against the accused persons. He denied the State Vs. Dinesh etc. SC No. 58069/16 :: 9 ::
suggestion that police informed him about the dead body lying in the bushes near Vijaya Bank or that his brother Munshi Yadav or accused did not visit his rehri on that day. He also admitted that he did not meet Arvind at all.
9. Ct. Sandeep was examined as PW5. He was working as photographer of Mobile Crime Team headed by SI Anil Kumar. On 13.12.2012 he along with the team reached the agricultural field near Vijaya Bank, where a dead body was lying. On the spot he took 13 photographs of the spot and body on the instructions of IO and Incharge Crime Team. He proved the negatives as Ex.PW5/A1 to Ex.PW5/A13 and the photographs as Ex.PW5//B1 to Ex.PW5/B14. (two photographs are identified).
10. ASI Ishwar Singh was examined as PW6. He was working as duty officer. He proved the copy of FIR as Ex.PW6/A and endorsement on the rukka as ExPW6/B.
11. Balram was examined as PW7. He deposed that on 13.12.2102 his friend Rama Yadav and Ram Achal Yadav told him that their brother was missing. This witness went along with them in search of Munshi Yadav. When they reached near Vijaya Bank they found one dead body in the field of village which was of Munshi Yadav. Witness noticed sign of injury on the face and strangulation marks on the neck with the shawl.
State Vs. Dinesh etc. SC No. 58069/16 :: 10 ::
Mobile phone of Rama Yadav and Ram Achal Yadav was not working. This witness gave his mobile phone and then call was made to PCR. His mobile number was 9650560103.
12. During cross examination he stated that he did not tell his mobile number to IO when his statement was recorded. He remained on the spot for about half an hour. The police did not lift any articles from the spot in his presence. Photographs of the scene of crime were also not taken in his presence.
13. Ct. Satbir was examined as PW8. On 14.12.2012 this witness along with Inspector Naresh and HC Vijender went to Railway Road, Narela for the investigation of this case. A secret informer met and at his instance from railway station near ATM Dinesh was apprehended. He was arrested vide memo Ex.PW8/A. His personal search was conducted vide memo Ex.PW8/B. Accused made disclosure statement Ex.PW8/C. Accused Dinesh led police team to village Bhorgarh and got arrested accused Arvind as well as Sunil Kumar. Both were arrested vide memos Ex.PW8/D and Ex.PW8/E. Their personal search were conducted vide memos Ex.PW8/F and Ex.PW8/G. They also made disclosure statements Ex.PW8/H and Ex.PW8/J. All the accused persons pointed out the place of occurrence vide pointing out memo Ex.PW8/K1, Ex.PW8/K2 State Vs. Dinesh etc. SC No. 58069/16 :: 11 ::
and Ex.PW8/K3. Accused Dinesh led them to his village at Pooth Khurd and from a rented house got recovered gray colour pants and a black colour shirt having some blood stains, which he was wearing at the time of commission of offence. These were converted into two pullandas and taken into possession vide memo Ex.PW8/L and Ex.PW8/M. This witness has correctly identified the accused persons and also shirt and pants as Ex.P 1 and P2.
14. During cross examination he stated that there are residential houses and shops near the place from where the accused Dinesh was apprehended. He does not remember if IO requested any passerby and public person to join the proceedings. He denied the suggestion that accused were not arrested in the manner deposed by him.
15. Ct. Ajay was examined as PW9. On 14.01.2013 as per the instructions of the IO he took 4 sealed parcels and a sample seal from MHC(M) vide RC No.9/21/13 and deposited the same in the FSL, Rohini.
16. Dr. V.K. Jha, Medical officer was examined as PW10. On 14.12.2012 he conducted post mortem on the body of Munshi Yadav and proved the post mortem report as Ex.PW10/A.
17. During cross examination he stated that he did not notice State Vs. Dinesh etc. SC No. 58069/16 :: 12 ::
any strangulation marks on the hands and legs of the deceased. He did not visit the place from where the dead body was recovered. The time since death was ascertained on the basis of the changes of post mortem on the dead body.
18. Inspector Anil Kumar was examined as PW11. On 13.12.2012 he was working as Incharge Crime Team, Outer District. On receiving information he reached the spot at about 3:15 pm. SI Mahavir and other police officials were there. The dead body was lying in the field. The dead body was identified as of Munshi Yadav. Some articles were lying near the dead body i.e. slippers, cigarette butts and transparent plastic water glasses. There were no chance prints on the spot. Ct. Sandeep took the photographs of the scene of the crime from different angles. This witness submitted his detailed report as Ex.PW11/A.
19. HC Bijender was examined as PW12. He corroborated and supported the testimony of PW8. He identified the accused persons and also identified the shirt and pants as Ex.P1 and P2.
20. During cross examination he stated that they left police station at about 4 pm. Secret informer met them at 4:15 pm they were in private Maruti Van. IO did not request any public person State Vs. Dinesh etc. SC No. 58069/16 :: 13 ::
to join investigation when the secret information was received. No public person was present on railway road where accused Dinesh was apprehended. There was no residential houses near the place where accused Dinesh was arrested. He denied the suggestion that there were number of customers at ATM booth. He denied the suggestion that Dinesh was lifted from the house or the clothes were planted upon him. IO did not request public persons near the house of the accused to join investigation. He denied the suggestion that accused Arvind and Dinesh were not arrested in the manner stated above or that he was not the part of the raiding team.
21. HC Ved Singh was examined as PW13. He was working as MHC(M) and before him HC Rajesh was working as MHC(M). He proved the entries made in register No.19 and 21 as Ex.PW13/A to Ex.PW13/F.
22. Ct. Ganesh Kumar was examined as PW14. On 29.01.2013 he took the exhibits of this case from MHC(M) vide RC No.24/21/13 and deposited the same at FSL Rohini. Till the exhibits remained in his custody nobody tampered with the same.
23. Inspector Naresh Kumar was examined as PW15. He is the IO of the case. He corroborates the testimony of PW8 and State Vs. Dinesh etc. SC No. 58069/16 :: 14 ::
PW12 and also deposed that the investigation was assigned to him after registration of FIR. Thereafter, he reached the spot i.e. in the fields of Bhorgarh village near Shamshan Ghat, Narela, Alipur, Delhi. Many police officials were present there including SI Mahavir Singh. Dead body of one person was lying in the field. Name of the deceased was revealed as Munshi Yadav. There were injury marks on the face and shawl was found wrapped around the neck. Crime team was called at the spot. Photographer of the crime team took photographs. From the spot, 4 plastic glasses, 4 cigarette butts of Gold Flake were also lifted. These were put in two different parcels, sealed with the seal of NK and seized vide memo Ex.PW15/A and 15/B. He prepared site plan at the instance of SI Mahavir Singh which is Ex.PW15/C. Thereafter, he got removed the dead body to mortuary of BJRM hospital. Next day he moved application for autopsy of deadbody same is Ex.PW15/D1. He prepared the brief facts Ex.PW15/D2, filled up form. After the post mortem doctor handed over the exhibits in sealed parcels which he seized vide memo Ex.PW15/E. He identified the case property i.e. cigarette butts as Ex.P3, 4 plastic tumblers Ex.P4, shirt Ex.P1 and pants Ex.P2.
24. During cross examination he stated that he reached the State Vs. Dinesh etc. SC No. 58069/16 :: 15 ::
spot at about 3:30 pm and remained there for 34 hours. He denied the suggestion that there was garbage near the place of occurrence. The crime team along with other staff reached at the spot at 5:00 pm. On asking of the defence counsel he pointed out the butts of the cigarette in the photographs. On 14.12.2102 the secret informer met them at 3:30 pm on railway road. He along with staff members was in uniform. Accused Dinesh did not try to run after seeing the police. He asked 34 passersby to join but they left without disclosing their names and addresses. He denied the suggestion that he has not fairly conducted the investigation. Nothing material came on record to discredit the witness.
25. Inspector Mahesh Kumar was examined as PW16. He was working as draftsman and proved the scaled site plan of the scene of crime as Ex.PW16/A.
26. Inspector Mahabir was examined as PW17. He deposed that on 13.12.2012 on receiving DD No:25A already Ex.PW2/A regarding a dead body lying near gol chakkar, DSIDC, Bhorgarh, Narela, he along with HC Jasbir went to the spot. Dead body was identified by Rama Yadav and Ram Achal Yadav. There were marks of injuries on the face of deceased and the tounge of deceased was struck up between the teeth. A crème colour State Vs. Dinesh etc. SC No. 58069/16 :: 16 ::
printed shawl was found tied around the neck. There were four cigarette butts and 4 plastic glasses lying near the dead body. This witness recorded statement of Rama Yadav Ex.PW4/A, prepared the rukka and sent the same to police station for registration of FIR through HC Jasbir. Crime team was also called at the spot. Photographer of crime team took the photographs. After registration of FIR. The investigation was handed over to Inspector Naresh Kumar who reached the spot and thereafter he corroborated the testimony of PW5 and PW8 regarding seizure of exhibits from the spot. He also identified 4 plastic glasses as Ex.P4 and the cigarette butts as Ex.P3.
27. During cross examination he stated that he reached the spot after 10 minutes of receiving information and remained there for about 4 hours. Crime team reached the spot in his presence. 4 cigarette butts are visible in the photographs. He cannot say if IO requested passersby to join investigation. There were many public persons. He denied the suggestion that no seizure memos of the plastic tumblers and cigarette butts were prepared on the spot. He denied the suggestion that accused persons were made to smoke cigarettes forcibly or cigarette butts were planted upon accused persons.
28. Ms. Monika Chakravarty was examined as PW18. She State Vs. Dinesh etc. SC No. 58069/16 :: 17 ::
conducted the DNA examination on the blood sample and the cigarette butts and proved her detailed report as Ex.PW18/A.
29. During cross examination she denied the suggestion that she prepared the false report at the instance of IO or that she did not examine the exhibits.
30. Thereafter, evidence was closed and statement of accused persons were recorded u/s 313 Cr.PC wherein they denied the entire evidence. They did not wish to lead evidence in their defence and case was fixed for arguments.
31. The present case is based upon circumstantial evidence. There is no eye witness. It is well settled law that even in the absence of an eye witness the accused can be held guilty and convicted only on the basis of circumstantial evidence. However, there are certain guiding principles which have to be kept in mind while dealing the case of circumstantial evidence.
32. The Apex Court has laid down the guide lines in the case titled C. Chenga Reddy v State of M.P., (1996) 10 SCC 193 and it was held that:
"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 State Vs. Dinesh etc. SC No. 58069/16 :: 18 ::
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"
33. In another case titled Padla Veera Reddy v State of A.P. & 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 & 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. Dinesh etc. SC No. 58069/16 :: 19 ::
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."
34. Ld. Addl. PP submitted that it is a case based upon circumstantial evidence and prosecution intend to prove the guilt of the accused on the basis of the circumstance of last seen and the scientific evidence of being together where dead body was found. Ld. APP submitted that for proving the first circumstance the prosecution has examined PW1 Rama Achal Yadav. He is brother of deceased Munshi Yadav. He deposed that on 12.12.2012 his brother Munshi Yadav had left with Dinesh at 6:30 pm. PW4 Rama Yadav also deposed that on 12.12.2012 he had gone with his rehri from his house at 5 pm for selling vegitables leaving Munshi Ram at home. At about 6:00 or 6:30 pm accused Dinesh met this witness on his rehri i.e. at Chaupal, village Bhorgarh, Narela. Dinesh asked this witness about Munshi Ram and this witness told that his brother is at home. Thereafter, accused Dinesh left. After sometime Dinesh along with his brother Munshi Yadav came to his rehri at Bhorgarh State Vs. Dinesh etc. SC No. 58069/16 :: 20 ::
Chaupal and they told him that they will soon come back. Ld. APP submitted that after this nobody had seen Munshi Yadav alive. On the next day his dead body was found in the fields near Vijaya Bank. The dead body was found at about 1:30 pm. Ld. APP submitted that the dead body was lying in the bushes near Vijaya Bank. The circumstance of last seen is proved. There is not much difference between the place where accused Dinesh and the deceased were lastly seen together and there is also proximity of time. Ld. APP submitted that this circumstance stand proved. There is no reason to disbelieve Rama Yadav in this regard and this circumstance also point towards the guilt of accused.
35. Ld. Defence counsel for the accused persons submitted that so far as Ram Achal Yadav is concerned he is not a witness to the circumstance of last seen. This witness has specifically stated that he left his house at 4 pm as usual with his rehri for selling vegitables and at that time Munshi Ram was sitting in the shop of his brother Rama Yadav situated in front of the house.
This witness i.e. Ram Achal Yadav returned home at about 7:30 pm. This witness specifically stated that his son Karan and daughter Anjali told him that his brother i.e. the deceased Munshi had gone with Dinesh at about 6:30 pm. It clearly shows State Vs. Dinesh etc. SC No. 58069/16 :: 21 ::
that Ram Achal Yadav himself had not seen Munshi Yadav accompanying Dinesh or in the company of Dinesh. Hence, his testimony cannot be relied upon for establishing this circumstance. Ld. Counsel further submitted that so far as Rama Yadav is concerned he is also not reliable. He has deposed that accused Dinesh came to his rehri. Dinesh asked about his brother thereafter Dinesh went to his house from there Dinesh took his brother Munshi Yadav with him and then they came to him at Bhorgarh where they told him that "Ghoom Kar AA rahe hain" but this witness was confronted with his statement u/s 161 Cr.PC where all these facts are not mentioned. He was confronted where it was not mentioned that he left his house with rehri at 5 pm for selling vegitables leaving Munshi Ram at home. He was also confronted with his statement that Dinesh visited his rehri at about 6 or 6:30 pm and asked about his brother Munshi Ram. He was also confronted with his statement where it was not found mentioned that he told Dinesh that his elder brother Munshi Yadav is at home. He was also confronted with his statement that Munshi Yadav and Dinesh told him at Bhorgarh that "Ghoom Kar Aa rahe hain". Ld. Counsel submitted that this clearly shows that PW4 has improved upon his statement and he is also not a witness to the circumstance of last seen. The State Vs. Dinesh etc. SC No. 58069/16 :: 22 ::
witness itself is not reliable. Ld. Counsel submitted that under the circumstances Ram Achal Yadav is not a witness of last seen and Rama Yadav is not reliable hence circumstance of last seen is not proved and established. The benefit of the same be given to the accused persons and they be acquitted.
36. After hearing the arguments and going through the record I found that so far as the contention that Ram Achal Yadav has not seen Dinesh and Munshi Yadav together I found that Ld. Defence counsel is right in this regard. Ram Achal Yadav himself has stated that he was told about this fact by his son Karan and daughter Anjali and he himself had not seen them together.
Therefore, so far as statement of Ram Achal Yadav in this regard is concerned no relieance on the same can be placed. So far as Rama Yadav is concerned he has stated that Dinesh and his brother Munshi Yadav met him at Bhorgarh Chaupal at about 6:30 pm. The contention of the LD. Counsel that Rama Yadav has improved upon his statement I found that there is no such improvement in his statement regarding this fact except that it is not mentioned herein that before 6:30 pm when Dinesh and Munshi Yadav met him Dinesh also came before that and inquired as to where is Munshi Yadav or that Dinesh again came to him at his rehri. But I found that this is not an improvement but State Vs. Dinesh etc. SC No. 58069/16 :: 23 ::
only unfolds the story and the sequence of events as it happened. He is consistent that Dinesh along with Munshi Yadav met him at Bhorgarh Chaupal at his rehri. The only improvement which is alleged to have been made is that they told him "Ghoom Kar Aa Rahe hain" I found that this is not an improvement but an explanation that when they met him they told that "ghoom kar aa rahe hain." infact after two lines thereof he also stated that when he inquired from them they told, "Khane peene ja rahe hain". From this it is clear that Rama Yadav is consistent in his statement that he had seen Dinesh along with his brother Munshi Yadav at his rehri at Bhorgarh Chaupal at about 6:30 pm. The circumstance has been proved and established by the prosecution beyond doubt.
37. Ld. APP submitted that in this case when the police reached the spot i.e. the place where the dead body was found situated near round about, Vijaya Bank. 4 cigarette butts, four broken plastic glasses were also found near the dead body. The cigarette butts were put in a plastic box thereafter wrapped in a cloth, sealed with the seal of NK and seized vide memo Ex.PW15/B. The witness Inspector Naresh Kumar has been examined in this regard as PW15. He has fully supported and proved the recovery of these cigarette butts and the testimony of State Vs. Dinesh etc. SC No. 58069/16 :: 24 ::
this witness in this regard has gone unchallenged and uncontroverted. It is also important to note that the scene of crime was photographed and the photographs on record has been proved as Ex.PW5/B1 to B14. In these photographs also the broken glasses and cigarette butts are visible. Ld. APP submitted that these cigarette butts along with the blood sample of the deceased were sent to FSL for DNA profiling. The DNA profiling report is Ex.PW18/A according to this report the DNA on the cigarette butts matched with the DNA of the accused persons and also of the deceased which clearly shows that all the accused and the deceased were together at that place. The time was after 6:30 pm in any case as PW4 had seen the deceased along with one of the accused Dinesh at 6:30 pm at Bhorgarh. This place is also not far away from there. They were there together. Smoked together there and may be they consumed liquor. Ld. APP submitted that thereafter all the accused persons murdered Munshi Yadav. Ld. Counsel submitted that the post mortem report Ex.PW10/A itself shows that there was alcohol like smell in the stomach which shows that they consumed liquor. Cause of death is Aspyxia as a result of smothering inflicted by other party and all injuries are ante mortem in nature. Ld. APP submitted that this post mortem was State Vs. Dinesh etc. SC No. 58069/16 :: 25 ::
conducted on 14.12.2012. The doctor has opined the time since death as approximately 39 hours. If we calculate backward from this time then it comes at about 11:00 pm on 12.12.2012 approximately when the murder was committed. Ld. APP submitted that the presence of all the accused on the spot is established beyond doubt by the DNA profiling report which is Ex.PW18/A and there is proximity of time as well as proximity of place. The dead body was found just near the cigarette butts i.e. the proximity of place and then post mortem report also shows the proximity of time. Ld. APP submitted that by establishing this circumstance the prosecution has proved beyond doubt by the clinching evidence that the accused persons committed murder of Munshi Yadav. Ld. APP submitted that this circumstance is also in consistent with any hypothesis of innocence of accused persons.
38. Ld. Defence counsel submitted that in this case there was no recovery of cigarette butts from the spot. Those have been planted. Infact the accused persons have been falsely implicated and lateron these cigarette butts were placed to falsely implicate the accused. The recovery of cigarette butts is also not proved as no public witness was joined though the public witnesses were present there. Ld. Counsel submitted that even otherwise State Vs. Dinesh etc. SC No. 58069/16 :: 26 ::
this does not establish or prove that the murder was committed only by the accused persons as there is no proximity of time and no proximity of place. It is prayed that benefit be given to accused and they be acquitted.
39. After hearing the arguments and going through the record I found that in this case when the police reached the spot after getting information about the dead body of Munshi Yadav they found that near the deadbody 4 broken plastic glasses and four cigarette butts were found from the spot. Those 4 cigarette butts were seized after putting these in a plastic box, sealed with the seal of NK and seized vide memo Ex.PW15/B. Inspector Naresh Kumar was examined in this regard as PW15 and he proved the recovery of the same. It is important to note that this recovery was effected on 13.12.2012 itself. The accused persons were not in picture at that time. Only the name of Dinesh was known.
But he was not in custody at that time. The accused persons were arrested on 14.12.2012. At the time of seizure of the butts as the identity of the accused persons were not known therefore to alleged that these cigarette butts were planted is only an hypothesis raised by the defence with no supporting evidence coming on record. The blood samples of accused persons were taken even lateron that is on 14.01.2013. Thereafter, these were State Vs. Dinesh etc. SC No. 58069/16 :: 27 ::
sent for DNA finger printing. The report has been proved as Ex.PWE18/A by examining the expert. According to the report the DNA found on the cigarette butts tallied with the DNA of the accused persons and also of the deceased which clearly proves and establishes beyond doubt that all the four persons were present together on the spot. It is also important to note that on the spot the four plastic glasses were found which points that they might have consumed alcohol on the spot. The photographs taken clearly shows that these glasses were there and that they have consumed some liquor. The post mortem report Ex.PW10/A clearly shows that there was smell of alcohol in the stomach when it was opened and the FSL result Ex.PX shows that on chemical analysis of blood Ethyle alcohol was found i.e. 158 mg per 100 ml of blood which again corroborates the evidence which was found on the spot. It is also important to note that though the IO had not seized that evidence but in the photograph which were taken on the spot there is a plastic bottle with the wrapper of Raseela Santra on it i.e. liquor.
40. Keeping in view all these facts coupled with the fact that the cigarette butts found on the spot tallied with the DNA of the accused as well as the deceased clearly proved and establishes the fact that all the four were together at that place where they State Vs. Dinesh etc. SC No. 58069/16 :: 28 ::
smoked, consumed liquor and at that place itself they dead body was found. It is also important to note as established and discussed earlier that at 6:30 pm the deceased was seen with one of the accused i.e. Dinesh at Bhorgarh by PW4. Thereafter, they all four including Dinesh and the deceased and the other two accused Arvind and Sunil were together at the place of commission of offence. The dead body was also found there. The post mortem report Ex.PW10/A shows that there was proximity of time and there is also proximity of place when they were lastly together. There is no explanation coming forward from the defence as to what happened thereafter when they had consumed liquor and smoked. Onus was upon the defence to bring on record that they separated from there and at that time deceased was alive. But there is no such evidence or circumstance brought on record by defence. Keeping in view the above discussion and the scientific evidence proving the presence of accused persons at the scene of crime along with the deceased and then immediately thereafter the recovery of the dead body with proximity of time and place points towards their guilt. So far as the post mortem report is concerned it also points that it is a case of homicide as deceased died due to smothering due to force inflicted by the other party and hence it State Vs. Dinesh etc. SC No. 58069/16 :: 29 ::
is a case of homicide. In my opinion the prosecution has proved and established the guilt of the accused persons beyond doubt that it were they who committed murder of Munshi Yadav. I therefore, hold all the accused guilty and convict them for the offence punishable u/s 302 r/w 34 IPC.
Let he be heard on the point of sentence on 30.08.2016.
Announced in the open court
today i.e. on 19.08.2016 (Virender Kumar Bansal)
ASJ-03/North/Rohini/Delhi
State Vs. Dinesh etc. SC No. 58069/16 :: 30 ::