Delhi District Court
State vs . Chetram Saini 1 Of 34 on 27 March, 2015
In the Court of Sh. Vimal Kumar Yadav, Additional Sessions
JudgeII, South District, Saket Court, Delhi.
Session Case No. 24/09/13
In the matter of :
State
Versus
Chetram Saini @ Ajay
S/o. Mani Ram Saini
R/o. House No. 1934, Gali No. 03,
Pilanji, Kotla Mubarakpur, New Delhi
Also at
2) Kali Mandir, Shamshan Ghat,
Green Park, New Delhi
FIR No. : 177/2009
Police Station : Defence Colony
Under section. : 302/201/381, IPC
Date of assignment : 22.01.2013
Reserved for order on : 16.03.2015
Date of decision : 19.03.2015
JUDGMENT
1. Fact and fiction, real and real life at times, lose the distinction on account of mutual borrowings from each other. The effort of Indian society and its community, social, political and religious State Vs. Chetram Saini 1 of 34 leaders has, by far been to bring Ram Rajya in the country. A society full of truthfulness, nonviolence, respect for the rights of each other, peace, etc. has been sought to be achieved by various individuals through the cherished goals of the Indian Constitution. However, the accused herein seems be impressed and fascinated by 'Ravanraj', the movie which seems to have given the idea and the manner to commit the crime and if not the idea then certainly fueled it and laid a roadmap before him to commit the offence.
2. On receipt of DD No. 7A dated 22.06.2009, a police team comprising Inspector Ishwar Singh, Head Constable Surender and Constable Akhtar went to the first floor of House No. A165 Defence Colony, New Delhi where one Bhagat Singh Rawat and Vinod Kapad met the police team and informed that the foul smell is emanating from the flat on the first floor in building belonging to retired Chief Justice of Kerala High Court. In the meantime, Inspector J.S. Mehta also reached at the spot. Bhagat Singh Rawat, being an employee of the owner of the flat , was having the key of the flat and ,thus , opened it. The scene inside the flat was gruesome as blood was found splattered at various places and a dead body was recovered with a completely burned torso and smashed face. The crime team was requisitioned and the scene State Vs. Chetram Saini 2 of 34 was examined. The kundas / latches of the two bed rooms were found broken and the almirah open. The house was ransacked. The dead body came to be identified as that of Chetram Saini, who was employed as a cook in the house and used to look after the flat in the absence of its owner. Wife of Chet Ram Saini namely Smt. Manju came and identified the dead body with the help of the nikkar / half pant which was intact on the dead body lying in the flat. Thereafter, the inquest proceedings were carried out and the postmortem was conducted. Dead body was handed over to the relatives of the deceased Requisites of the investigation such as seizure of various articles, clothes, shoes, chappals etc. from the flat was carried out and chance prints were, also lifted from the spot. The site plan was prepared by the Investigating Officer.
3. The police was able to crack the case in the beginning of August, 2009 with the arrest of the present accused, who turned out to be the husband of Manju i.e. Chetram Saini qua whom initially it was the belief that it was he who was killed. This added a twist to the case and a new responsibility came over to be shouldered with by the police as to whose dead body it was if it was not that of Chetram Saini. The investigations finally came to the conclusion that it was Chetram Saini who had lured one State Vs. Chetram Saini 3 of 34 rickshaw puller namely Shivram and committed the burglary in the house after committing the murder of Shivram. Clothes of Shivram were removed by Chetram Saini ,who put on his clothes on the body of Shivram in order to conceal the true identity and to portray that it was he, that is Chetram, who has been killed. To achieve this, he had burnt the face and upper portion of the body, but seemingly left the lower portion untouched ,deliberately and consciously, in order to mislead the police and to make the people believe that it was Chetram Saini who has been killed.
4. The blood samples for DNA etc. were taken which confirmed the aforesaid fact that it was the dead body of Shivram and not that of Chetram as the blood samples of the mother of the accused namely Kishori Devi and the brother of deceased Gore Lal were already taken and that confirmed identity of the persons. As in order to confirm the identity of the accused Shivram, blood sample of his father Krishna Thakur was taken, at a later stage, together with fingerprints.
5. After concluding the remaining requisites of the investigation, a charge sheet was filed against the accused Chetram Saini containing allegations under section 302/201/381 IPC.
State Vs. Chetram Saini 4 of 34
6. After compliance of Section 207 Cr.P.C. the matter was committed to the Court of Sessions being exclusively triable by the Court of Sessions on account of allegations being under section 302, IPC.
7. Based upon the material gathered during the investigation, a prima facie case under section 302/201/381 IPC was found against the accused and a charge, accordingly, was framed against him and read over in to which he pleaded not guilty and claimed trial.
8. Prosecution ,in order to drive home its case, examined 51 witnesses and thereafter, prosecution's evidence was closed. The evidence so coming on record was put to the accused and his statement under section 313 Cr.P.C. was recorded. He did opt to lead evidence in his defence but later on through his statement dated 12.02.2015, opted out and did not bring any evidence.
9. Arguments were raised by Additional Public Prosecutor for State and Counsel for accused. I have considered the contentions so raised by the contesting sides and have perused the record as well.
10. Additional Public Prosecutor for State, while seeking State Vs. Chetram Saini 5 of 34 conviction for the accused, submitted that there is sufficient evidence which unequivocally points out towards the guilt of the accused and outlined the broad spectrum of the case while asserting that it was the accused with whom the deceased was last seen alive. The call detail records, the testimony of the wife of accused and the conduct to the accused in itself reflects the guilty intentions and guilty mind and in the absence of any explanation which is cogent enough to validate the explanation of all these facts confirm the complicity of the accused in the incident. Recovery of the stolen money and coins, which were identified, further cements the guilt of the accused. Besides extra judicial confession is also there which leaves no scope for the accused to plead his innocence. Medical and technical evidence is also there which is irrefutable and binds the accused with the case.
11. Ld. Counsel for the accused person, on the other hand, submitted that there is no eye witness to the incident and the last seen evidence is very weak and cannot be relied upon, coupled with the fact that the testimony of the witnesses is so full of contradictions that makes the case of the prosecution highly unbelievable and vulnerable to doubt and suspicion. It has been elaborated further by the Counsel for the accused that the keys of State Vs. Chetram Saini 6 of 34 the house i.e. First Floor of premises No. A165, Defence Colony, New Delhi were with three persons and not with the accused alone. In these circumstances, the accused is not the only person who had the access to the house. There is no evidence to the effect that anybody had seen the accused either going inside the house alongwith the deceased or coming out on the day of the incident. The cash and silver coins have no specific mark of identification besides it cannot be ruled out that it was not planted. As regards the recovery of the silver coins and money, the witnesses examined by the prosecution from Hoogly, West Bengal say that the seizure memos were signed at the Police Station clouding the sanctity of the recovery from the possession of accused. This alone is enough to put a big question mark on the recovery of silver coins and cash. With these contentions, it is submitted by the Ld. Defence Counsel that the accused cannot be held responsible for the murder of Shivram, nor can he be held responsible for the destruction of evidence or theft.
12. In Bantu v. State of Uttar Pradesh, 2008 Suppl. I AD ()S.C.) 267, the Hon'ble Supreme Court held that 'for a crime to be proved it is not necessary that the crime must be seen to have been committed and must in all circumstances to be prove by direct State Vs. Chetram Saini 7 of 34 ocular evidence by examining before the court those persons who had seen its commission. Offence can be proved by circumstantial evidence also. Principal fact or factum probandum may be proved indirectly by measures of certain inferences drawn from factums probans, that is, the evidentiary facts'.
13. A reference can be made to the later decision in Sharad Birdhichand Sarda v. State of Maharashtra, 1984 Cri LJ 1738, where Hon'ble Supreme court while dealing with circumstantial evidence 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; (3) the circumstances should be of a conclusive nature State Vs. Chetram Saini 8 of 34 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.'
14. The principles enunciated in the cause célèbre of Sharad Birdhichand Sarda v. State of Maharashtra, 1984 Cri LJ 1738 has been followed thereafter, reference in this context may be made to the judgment in Guddu Rathore v. State, 2013 IV AD (Delhi) 109, Rohtash Kumar v. State of Haryana, 2013 III AD (Cri) (SC) 369, where the aforesaid position has been reaffirmed.
15. Sir Alfred Wills in his book Wills' "Circumstantial Evidence" (Chapter VI) lays down the following rules 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 State Vs. Chetram Saini 9 of 34 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; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted."
16. In Padala Veera Reddy Vs. State of A.P. [AIR 1990 SC - 7 9], it was laid down that when a case rests on circumstantial evidence, it 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."
17. It is correct that there is no eye witness to the incident. It is also correct that no witness has been examined by the prosecution State Vs. Chetram Saini 10 of 34 who had seen the accused and deceased together either going inside the building / flat where the incident took place or the accused coming outside the building / flat on the relevant date and time. However, it has been brought on record by the prosecution through technical evidence i.e. DNA, fingerprint that the deceased was one Shivram, a rickshaw puller. It is also shown that the accused was the person with whom Shivram was last seen alive by the rickshaw garage owner Om Prakash examined as PW17. Chetram Saini has been identified by the said rickshaw garage owner Om Prakash in the Court as the person who came with Shivram on 18.06.2009 to return the rickshaw at about 6 / 7 P.M. This circumstance when further connected with the presence of the dead body of Shivram in the first floor of the premises bearing No. A165, Defence Colony, New Delhi, keys of which were there with the accused too, but none else except accused was allowed to stay, as per the testimony of the owner of the house who had employed the accused as cook then it starts emerging that it is the accused who is responsbile for the offence.
18. While dealing with the proposition of last seen evidence, Hon'ble High Court of Delhi in Shahnawaj @ Sonu Vs. State (NCT of Delhi) 2013 V AD (Cri) (DHC) 66 taken into account law on the State Vs. Chetram Saini 11 of 34 subject emerging through the judgments in State of U.P. Vs. Satish reported in 2005 II AD (S.C.) 675 = 2005 (3) SCC 114, Ramreddy Rajesh Khanna Reddy & Anr. Vs. State of A.P., 2006 III AD (S.C.) 425 = (2006) 10 SCC 172, Jaswant Gir Vs. State of Punjab (2005) 12 SCC 1438, State of Goa Vs. Sanjay Thakran reported in 2012 (1) JCC 540, Godabariksh Mishra Vs. Kuntala Mishra reported in AIR 1997 SC 286 and Rishi Pal Vs. State of Uttarakhand, 2013 (2) ACR 1471. It is observed by the Court in the following words "The last seen evidence, undoubtedly, is a vital piece of circumstantial evidence and the absence of any truthful explanation given by the accused or if the explanation given by the accused turned out to be false, then the same forms an additional link in the chain of other circumstances proved against him".
19. The proximity of time from the last seen and the time of death, recovery of decomposed body with maggots detected on the basis of foul smell makes the factum of last seen relevant circumstance against the accused. Thus, it can be very well inferred that it was the accused who put Shivram into the house which can be further inferred from the fact that deceased was found wearing half pant / nikkar of the accused as was identified by the wife of the accused, namely Smt. Manju. As on 22.06.2009, State Vs. Chetram Saini 12 of 34 the question was as to whose dead body it was? The wife of the accused on the basis of the half pant / Nikkar and the fact that accused used to stay back at the house on a number of occasions, identified the dead body as that of Chetram Saini whereas ,verily, it was dead body of Shivram. The face of the deceased was smashed and upper portion of the body was charred, seemingly deliberately as can be seen from the overall circumstances in the evidence in order to conceal the real identity of the dead body and to mislead the persons / police.
20. The postmortem report is to the effect that the cause of death was the cut throat injury caused by sharp edged weapon. It is, thus, evident that that death was not on account of smashing of the face or on account of burn injuries. In this context, statement of Dr. Adarsh Kumar, examined as PW7 and the postmortem report Ex.PW7/A can be looked into. PW7 Dr. Adarsh Kumar has testified that kerosene smell was present in the remnants of the burnt clothes on the body of the deceased. He has further stated that upper half of the body showed feature of postmortem burns. This goes with the case of the prosecution. Certain samples were preserved, sealed and handed over to the police as per his deposition including terminal phalanges and sternum for DNA State Vs. Chetram Saini 13 of 34 examination. Ex.PW7/B is the second opinion connecting the knife recovered at the instance of the accused with the cut throat injury, which further fortifies the case of the prosecution. In these circumstances, the only inference which can be deduced is that the deceased was killed first by slitting his throat and thereafter his face was deliberately disfigured and upper portion of the body and face was burnt consciously in order to misguide the police and everyone else and to make the persons believe that the dead body was that of Chetram Saini which would have taken Chetram off from the radar of the investigating agency. There cannot be any explanation except the above when the nikkar of the accused was found on the dead body which was nothing but a deliberate and conscious effort to misguide and to make the people believe that it was the dead body of Chetram Saini.
21. The manner in which the offence was committed at the scene of crime had made the police suspicious qua the identity of the deceased and therefore surveillance was decided to be kept on Manju, wife of the accused. Police through examination of seller of the mobile phone, examined as PW20 Naresh, brought on record that the accused had purchased a new Nokia mobile handset 5130 and also a SIM card of Airtel on 13.06.2009. The bill book State Vs. Chetram Saini 14 of 34 contains the receipt of the telephone sold to the accused seized by the police through seizure memo Ex.PW20/A. The bill no.971 is the relevant bill which is Ex.PW20/3 whereas the carbon copy of the said bill no.971 is Ex.PW20/B1. Although, there is no mention of the purchaser in the bill but then the testimony of Naresh is an important input in this regard and connects the accused . It has also been brought on record by the prosecution through the testimony of PW15 SI Kali Chran that a request for interception of telephones was made qua mobile numbers i.e. 9650706740, IMEI No.354223037296820, 9899564655, IMEI No.353365007631640 and 9958371502, IMEI No.358492020053780 based upon the permission granted by the Principal Secretary (Home) on 14.07.2009. The service provider i.e. mobile service provider Companies i.e. Airtel, Idia, Vodafone, Aircel and Dolphin was conveyed the aforesaid fact through letter dated 16.07.2009, copy of which is Ex.PW15/A. Smt. Manju examined as PW47 has stated that her phone was under surveillance and recording was also made when she received the second call from her husband i.e. accused Chet Ram. The Nodal Officer examined by the prosecution with regard to the telephone numbers in question as PW16 Sh. R K Singh from Bharti Airtel, PW20 Sh. Anuj Bhatia from Vodafone and PW22 Sh. M. Chinanthambi from MTNL.
State Vs. Chetram Saini 15 of 34 These witnesses have brought in evidence with regard to the person to whom the connections were issued and the call detail record have been brought on record to show that the accused was in contact with his wife and that is how the police had noticed the conversation of the accused with his wife. The testimony of PW22 brings another circumstance that the telephone number 24337977 was installed in the name of Justice Arwind Vinayak Sawant, at A165, First Floor, Defence Colony and the call detail records from 16.06.2009 to 30.06.2009 were provided to the police which are Ex.PW22/B, which shows that the accused had informed the owner of the house Justice Sh. Sawant (at Bombay) by making a call on 18.06.2009 at about 8.41pm on his mobile no.9811677977 to show that he was present in the house. This was an attempt on the part of the accused to execute his plan of showing his presence at the house where the murder was going to take place and was made with a view to misguide one and all that the dead body was of Chet Ram, the accused herein.
22. It has come in the evidence that the blood was splattered all around the house and a scene was tried to be created in such a manner that deceased before his death struggled hard and tried to escape as the computer table and telephone has also some blood State Vs. Chetram Saini 16 of 34 marks indicating that some effort was made to pick the telephone. The prime motive seems to be of robbery and some silver coins and a sum of Rs.1,50,000/ was taken away by the accused from the house of his employer. The secondary motive was to misguide the persons that it was Chetram who has been killed and thus, the accused wanted to save himself and enrich also and that is why all this was meticulously planned and executed by the accused, but he couldn't get away with that. In Niranjan Panja Vs. State of West Bengal 2010 V AD (SC) 516 the question of motive and the importance has been dealt with by the Hon'ble Supreme Court. Albeit, in that case, the motive was not found strong enough, but here the case seems to be different. The evidence on record very strongly indicates about the motive(s) of the accused. Hon'ble Delhi High Court in Rajiv Kumar Vs. State 2013 V AD (Delhi) 237 observed that it is not necessary in all cases of circumstantial evidence to prove motive to sustain conviction. Chain of circumstances can be complete even if motive is not fully established. What impels and pushes a person to do a crime remains confined and known to the accused. Because of overt acts in some cases, it may be possible to decipher and know the reason or the cause which impelled the accused, but in other cases it may not be possible to pinpoint the so called motive or State Vs. Chetram Saini 17 of 34 reason. Crime / offence can be proved or established without establishing / proving motive.
23. Recovery of about Rs.1,10,000/ was effected by the police from the possession of the accused alongwith 3 silver coins. The accused was in the process of purchasing some land in West Bengal as can be seen from the testimony of the broker examined as PW25 whom he had given advance of Rs.40,000/. A sum of Rs.35,000/ was handed over by the said broker to the police as he had already spend Rs.5,000/.
24. Accused Chetram Saini had stayed in the Bans Baria Municipality Guest House at Triveni Ghat, West Bengal w.e.f. 24.06.2009 to 28.06.2009 by the name of Ajay Singh. In this context, testimony of PW28 Aninya Kumar Mittra, SubRegistrar Office from the area Bans Baria, Hoogli can be looked into who has produced the boarder's register of the Municipal Guest House, Triveni Ghat. As per the entries on page No. 66A, Ajay Singh had stayed in the said Guest House till 28.06.2009 as per the entries No. 24, 25, 26, 28 and 21. The entries in the said register are Ex.PW28/A. He has also deposed that Ajay Singh had signed in the register at point Q1, Q2, Q3, Q4 and Q5. The register and State Vs. Chetram Saini 18 of 34 the bill book were seized by the police through the seizure memo Ex.PW28/B. In this context technical and scientific evidence is also there in the form of the report of the handwriting expert PW3 Dr. Virender Singh whose deposition is to the effect that handwriting on the Register of the Municipal Guest House, Bans Baria, is that of the accused. His report is Ex.PW30/A. In this context, testimony of PW25 Mahadev Rajvanshi is also very vital who has come and deposed to the effect that he runs a sugarcane juice stall in Bans Baria, Triveni Ghat. In July, 2009, a person claiming himself to be Ajay Singh came to his contact and during conversation, showed interest to have a room on rent and was also interested in buying land. PW25 Mahadev Rajvanshi agreed to help him in this context. After 10 / 15 days, the said Ajay Singh again visited PW25 and had given a sum of Rs.40,000/ for buying the land. PW25 got a room on rent for him from one Khokhan Das in Triveni Ghat, West Bengal. Thereafter, he went to Bombay to his sister as it was Rakhi time and when he came back Hoogli from Mumbai, police came, looking for him and then he came to know that the person whom he knew as Ajay Singh was actually Chetram Saini. PW25 Mahadev Rajvanshi identified the accused as the same person who introduced himself as Ajay Singh and gave him Rs.40,000/ to buy land. He had handed over Rs.
State Vs. Chetram Saini 19 of 34 35,000/ which was seized by the police through seizure memo Ex.PW25/A. PW37 and PW38 i.e. Asim Das and Khokhan Das respectively have supplemented and substantiated the testimony of PW25 in one way or the other. PW38 Khokhan Das has also identified the accused in the Court and stated that he had introduced himself as Ajay who came to buy a piece of land in their area. Khokhan Das additionally stated that he had given his room(Darma) on rent to the accused who had introduced himself as Ajay Singh. He has also identified the accused in the Court.
25. What emerges on record is that the accused represented himself as one Ajay Singh and concealed his actual identity. No reason seems to be there, except that the accused wanted to start living afresh with a new identity. Incidentally, no explanation has come as to why and what for the accused represented himself as Ajay Singh if everything was normal and that further cements the complicity of the accused. The other aspect raised by the counsel for the accused that the recovery of cash and silver coins affected by the police is not free from taint but it does not seems correct. At this stage, it is pertinent to mention that out of the stolen amount, a sum of Rs.35,000/ has been returned or say recovered from one Khokhan Das, who was paid a sum of Rs.40,000/ by the accused.
State Vs. Chetram Saini 20 of 34 Why Khokhan Das had returned the sum of Rs.35,000/ if it has nothing to do with the money provided by the accused to Khokhan Das. Even if it is presumed that the recovery from the rented premises of the accused might have been stage managed or planted, but then the recovery of amount from Khokhan Das cannot be questioned.
26. It is, thus, evident that the accused very shrewdly planned to efface himself from the world known to him and to whom he was known, take the money and start a new life afresh with a new identity in West Bengal. He wanted to show that it was he who has been killed in the robbery. And that is the only plausible reason why he lured one poor rickshaw puller, slit his throat and thereafter smashed his face and burnt his upper portion, leaving the lower portion intact, which was also with a purpose to establish and confirm the identity of the dead body as that of Chetram Saini by putting his half pant / nikkar on the body of the deceased.
27. The premises where the incident took place was fully accessible to him as has come in evidence. The deceased was identified as Shivram, which has been scientifically established, deceased was seen alive lastly in the company of the accused, the State Vs. Chetram Saini 21 of 34 weapon of offence i.e. Knife used in the slitting throat of the deceased has been recovered alongwith the implements i.e. hack shaw used for breaking open the kundas / latches of the bed room, both are at the instance of the accused, coupled with the recovery of stolen money and sliver coins and the technical data and evidence in the shape of telephonic record leaves no room for the accused to say that he is innocent and has been falsely implicated in this case.
28. The circumstances are heavily loaded against the accused and unequivocally points out towards the guilt of the accused. There is extra judicial confession also which can be inferred from the testimony of wife of the accused Manju.
29. Smt. Manju examined as PW47 has testified in her testimony that the accused had confided with her that he is alive and the dead body which was recovered was that of a rickshaw puller Shivram. PW47 Manju initially was not very clear in her deposition about the confession made by the accused but during her crossexamination conducted by the learned Additional Public Prosecutor, things were clarified and the same was further fortified in the crossexamination conducted by the learned defence State Vs. Chetram Saini 22 of 34 counsel, where she has denied the suggestion that the accused had not committed the murder of rickshaw puller and thereby strengthened this aspect. The utterances of the accused to his wife Smt. Manju examined as PW47 amounts to extra judicial confession and the same can be taken into consideration subject to corroboration. The contention that the communication is privileged does not seem to qualify for the privilege claimed by the counsel for the accused, as the accused and Manju were in a husband wife kind of relationship but were not legally married, as it has been shown on record that Manju had three children ,none of whom were fathered by the accused, and her husband is alive. It is other story that the accused and Manju started living together in a kind of livein relationship. Sufficient corroboration is there which makes the extra judicial confession acceptable therefore another circumstance/ evidence comes in against the accused.
30. It is relevant here to mention the observations of Hon'ble Supreme Court in State of Rajasthan Vs. Raj Ram, [2003] 8 SCC 180, wherein it was observed as under:
"An extrajudicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The confession will have to be proved like any State Vs. Chetram Saini 23 of 34 other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witness, who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra judicial confession can be accepted and can be the basis of a State Vs. Chetram Saini 24 of 34 conviction if it passes the test of credibility."
31. Extra judicial confession should be genuine and voluntary. There is no requirement of law that extra judicial confession must always be in writing. Under certain circumstances, though the extrajudicial confession is voluntary and genuine, it may not be written. In such circumstances, it cannot be said that for want of written proof, it should be thrown out. When extra judicial confession is made by the accused to a private person and that person has repeated it in Court what the accused had stated, for want of writing of the same, we cannot say it cannot be relied on, when otherwise it is reliable and acceptable.
32. The evidence / circumstances against the accused can summarily put in to the following categories;
a) Last seen where deceased was lastly seen alive in the company of accused on 18.06.2009 in the evening.
b) Misrepresentation, in order to conceal his true identity before the persons with whom he came in contact at West Bengal.
c) Staying with an assumed name of Ajay Singh in Municipal Guest House and signing as Ajay Singh.
d) Fingerprints / comparison with verification form of servant (Ex.PW2/A) stated by owner of the house too and admitted his signature.
e) postmortem report / opinion qua death that it was on account of slitting of the throat.
State Vs. Chetram Saini 25 of 34
f) Second opinion qua death and use of weapon recovered at
the instance of the accused Ex.PW7/B.
g) Use of the hacksaw blade for cutting the door knobs /
latches and scientific evidence in this context visavis the implement recovered at the instance of accused which was used for this context report Ex.PW31/B.
h) Telephone record / evidence i.e. CDR of 9850706740 (Manju), 9775346390 (Chetram) 999914251. Landline 24337977 [call diversion was permitted SubInspector Sanjay 9811585655 heard the calls of Chetram (9775346390) to his wife.
i) DNA test PW36 Dr. Anupam Raina in her report Ex.PW36/A opined that deceased was not the biological child of Kishori Devi, mother of Chetram. Second report Ex.PW36/B that deceased was child of Krishna Thakur.
j) PW42 Krishna Thakur says his blood was taken for DNA test, form is Ex.PW42/A.
k) recovery of currency notes / three silver coins.
l) recovery of weapon of offence i.e. knife, implement used for cutting the door knocks, mobile phone(s), crime scene manipulation by the accused.
m) missing report of Shivaram PW24 Head Constable Ram Chander recorded DD No. 35A in this context and Ex.PW24/A2 are the documents filed by Investigating Officer including photo of Shiv Kumar.
n) Krishna Thakur stating Shivram resides separately,and contacting once / twice in a month. Shivram did not call to his father, thus missing report lodged.
33. Therefore in these circumstances when each and every aspect of the case, circumstance and the evidence indicate towards the guilt of the accused, there cannot be any other State Vs. Chetram Saini 26 of 34 outcome of the case except for the fact that it was the accused who had committed the murder of Shivram and therefore convicted for the offence under section 302/201/381, IPC. Announced in the open Court (VIMAL KUMAR YADAV) On 19 day of March, 2015 th Additional Sessions JudgeII, South District, Saket Courts, New Delhi State Vs. Chetram Saini 27 of 34 In the Court of Sh. Vimal Kumar Yadav, Additional Sessions JudgeII, South District, Saket Court, Delhi. Session Case No. 24/09/13 In the matter of :
State Versus Chetram Saini @ Ajay S/o. Mani Ram Saini R/o. House No. 1934, Gali No. 03, Pilanji, Kotla Mubarakpur, New Delhi Also at
2) Kali Mandir, Shamshan Ghat, Green Park, New Delhi FIR No. : 177/2009 Police Station : Defence Colony Under section. : 302/201/381, IPC Order on Sentence
1. It was contended on behalf of the victim that being the first time offender and a young man, belonging to the poor social strata, and is barely educated which all could have been the reasons for landing him into the situation where he is State Vs. Chetram Saini 28 of 34 today. As the facts of the instant case do not bring it into the category of the rarest of rare case, therefore, the convict may be considered for the other sentence in these circumstances.
2. Learned Additional Public Prosecutor for State, on the other hand, submitted that the convict had not only betrayed the trust of his employer but had committed the murder of an innocent person against whom he had no grudge, simply to establish that the convict is not the person who had committed the robbery. In order to achieve that, the convict not only killed a person but brutalised him as the face was smashed and disfigured and together with that the torso and the face was consciously and deliberately burnt with the only aim of hiding the true identity of the deceased and to portray that it was convict Chetram, who was killed. In these circumstances, the case does not remains simple case of murder. The deceased had no enmity with the convict and no further reason or motive was there with the convict except the aforesaid. In these circumstances, the convict needs to be punished suitably with capital punishment.
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3. I have considered the submissions made by the contesting sides and perused the record as well.
4. Sentencing is the most ignored aspect of criminal law. There is no set parameters and therefore the sentences bear individual stamp of the sentencer. No uniformity is there and it varies from court to court. However, while considering an appropriate sentence for a convict, given in a set of facts and circumstances, a lot of factors come into play such as the age, gender, educational background, socioeconomic status of the convict and the role of and impact on the society etc. The sentence needs to be adequate and in consonance with the offence committed, it should neither be harsh nor should be light. Striking such a delicate balance is a very crucial for a judge in the role of a sentencer.
5. In recent judgments titled as Deepak Rai and Ors.
v. State of Bihar, 2014 II AD (SC) 496, Gudda @ Dwarikendra v. State of Madhya Pradesh, 2013 X AD (SC) State Vs. Chetram Saini 30 of 34 477 and State v. Navin Ahuja, 2013 V AD (CRI.) (DHC) 473, the entire issue of capital punishment and the cases falling into the rarest of rare category have been examined exhaustively. The five categories or parameters to decide the rarest of rare crime as was held in by the Hon'ble Supreme Court in Macchi Singh v. State of Punjab, (1983) 3 SCC 470, still holds good, which is as under:
"I. Manner of commission of murder When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance, (i) when the house of the victim is set aflame with the end in view to roast him alive in the house.
(ii) When the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.
(iii) When the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.
II. Motive for commission of murder When the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold State Vs. Chetram Saini 31 of 34 blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or visavis whom the murderer is in a dominating position or in a position of trust, or (c) a murder is committed in the course of betrayal of the motherland.
III. Antisocial or socially abhorrent nature of the crime.
(a) When murder of a member of a Scheduled Caste or minority community, etc. is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorise such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance.
(b) In cases of 'bribe burning' and what are known as 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
(IV) Magnitude of crime When the crime is enormous in proportion.
For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
State Vs. Chetram Saini 32 of 34 (V) Personality of victim of murder When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder
(b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person visavis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons."
6. The circumstances speak volume about the mental state of the convict where he had not only betrayed the trust of his employer but also of his so called friend Shiv Kumar, the deceased. The offence was committed with due deliberation, planning, preparation in a cool and calculated manner. The brutalisation, disfigurement of the face and burning of the torso etc. takes it towards the side of those cases which are categorised as rarest of rare. However, the parameters laid down as referred hereinabove for the rarest and rare case are not made out completely in the instant case, therefore, this is not a fit case where capital punishment State Vs. Chetram Saini 33 of 34 is to be awarded.
7. In these circumstances, the convict is sentenced to undergo rigorous life imprisonment under section 302 IPC and to undergo rigorous imprisonment for a period of four years and to pay a sum of Rs.20,000/ as fine, in default, six months simple imprisonment under section 381 IPC and further sentenced to undergo rigorous life imprisonment for a period of three years and to pay a sum of Rs.5,000/ as fine, in default, to undergo simple imprisonment for six months. Sentences to run concurrently with the benefit of set off under section 428 Cr.P.C. Copy of the judgment and order on sentence be supplied to the convict free of costs. After compliance, file be consigned to record room. Announced in the open Court (VIMAL KUMAR YADAV) On 27 day of March, 2015 th Additional Sessions JudgeII, South District, Saket Courts, New Delhi.
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