Delhi District Court
State vs Rishi Om @ Minu Kana on 2 August, 2007
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IN THE COURT OF SH. V.K.BANSAL;
ADDL. SESSIONS JUDGE;
NEW DELHI
IN SESSIONS CASE NO: 46 A / 07
State Versus Rishi Om @ Minu Kana
s/o Prem Dutt
r/o H.No 33 Balmiki Gali,
village Mitraon,
Najafgarh, New Delhi.
F.I.R.No 196/03
PS: Najafgarh
U/s 302 of IPC
JUDGMENT
The Story of prosecution in brief is that on the intervening night of 24/25-4-2003 Nirmala Devi was sleeping near husband Ishwar Singh in gher situated in village Mitraon. In the night her sister Sunita came to call her as her nephew Harsh s/o Sunder was not well. She went alongwith her. Harsh was given medicine and thereafter she slept in the house itself. In the morning she woke up went to gher prepared fodder for the cows, milked the cows and then she went to woke up her husband. There she saw that her husband was lying in the pool of blood on the cot.
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She informed her dever who was on duty as security guard. He came to the gher, made a call to the police. Police reached there recorded the statement of Nirmala Devi PW1. During investigation accused was apprehended . He got recovered his clothes, weapon of offence was also recovered which was blood stained.
After completion of investigation charge sheet against the accused was filed. Ld M.M. after complying with the provisions of section 207 Cr. P.C. committed the case to the Sessions Court as the offence punishable U/s 302 IPC is exclusively triable by the Sessions Court. Accused was charged for the offence punishable U/s 302 IPC to which he pleaded not guilty and claimed trial. Thereafter case was fixed for prosecution evidence.
Prosecution in order to prove its case examined 23 witnesses. Thereafter prosecution evidence was closed. Statement of accused u/s 313 Cr.P.C has been recorded wherein he stated that he has been falsely implicated . He was arrested from his house in the morning of 27/4/2003 and later on taken to police station. He had neither made any disclosure
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statement nor pointed out the place of incident. He is innocent . He had not visited the house of Ishwar Singh on the date of alleged incident nor he had committed the murder. He has been falsely implicated due to enmity. The deceased was not a witness in the civil case and he had no enmity with them. Pws in connivance with Ram Mehar and others got him implicated with the help of police and created false evidence. He is not directly involved in civil litigation. He wish to lead evidence in his defence and case was fixed for defence evidence.
Mehtab Singh was examined as DW1. He stated that on 27/4/2003 at about 7-7.30 a.m he was coming to his house from the village 4- police officials had taken the accused to the police station. He had not talked with police or with the accused. DW-2 Rishal Singh also deposed on the same lines. Dr. Rajender Kumar was examined as DW3. He stated that there are two types of RH factors i.e RH + ( positive) and RH- ( negative) and therefore there would be total eight types of blood groups. There would be B+ ( positive) and B-(negative). Two persons can have blood of B group and among them one can have blood
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group B positive and other can have B negative and these groups i.e. B positive and B negative are different blood groups from each other. Thereafter accused closed his evidence and case was fixed for arguments.
I have heard the ld. Addl. P.P for State, ld. Counsel for accused and perused the record.
ld. Addl.P.P for State submitted that in the present case there is no ocular evidence and case is based on circumstantial evidence. There is no such requirement of law that conviction can be based solely on the basis of circumstantial evidence. In the absence of ocular evidence for basing a conviction on circumstantial evidence the care has to be taken that all the circumstance have been proved positively . The circumstances so proved point toward the guilt of the accused and are inconsistent with any hypothesis of innocence of the accused. The circumstance proved shall also form the complete chain and there conditions are fulfilled if the conviction can be based on the basis of circumstantial evidence. ld. Addl.P.P for State submitted that in the present case the prosecution has established all the circumstances
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which points toward the guilt of the accused. These circumstances are also inconsistent with any hypothesis of innocence of accused and also from complete chain.
ld. Addl.P.P for State submitted that in the present case the prosecution has proved and established the following circumstances :-
1. There was enmity between the deceased and the accused and the accused has threatened the deceased on 23/4/2003.
2. The accused was seen near the gher were murder has taken place in the intervening night of 24/25-4-
2003.
3. Recovery of weapon of offence at the instance of accused on which blood is detected.
4. The recovery of blood stained clothes of accused at his instance and the blood stains matched with blood group of the deceased.
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ld. Counsel for accused submitted that no doubt the conviction can be based solely on the circumstantial evidence but the inference of guilty can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. The circumstance 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. The circumstance even if proved only throwing a doubt of involvement of the appellant in murder is not sufficient to base conviction. The circumstances from which the conclusion of guilt is to be drawn have to be fully established and also should be of conclusive nature with the hypothesis of the guilt of the accused. The guilt of the accused and the chain of evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. The circumstance must be cogent and points towards the guilt of the accused . The evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and inconsistent with his innocence. The circumstance cumulatively do not form a complete
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chain to reach irresistible conclusion that within all human probability the crime must have been committed by the accused and none else.
ld. Counsel in support of his arguments relied upon the judgment cited as :
(1) State of Haryana Vs. Jagbir Singh and Another reported in 2004 Supreme Court Cases (Cri) 126 (2) Kantilal @ K.L.Gorhandas Soni Vs. State of Gujrat reported in 2003(1) Crimes 6 (SC) (3) Bhagat Bahadur Vs. State reported in 1996 JCC 460 (4) Vinod Kumar Vs. State reported in 1994 JCC 674 After hearing I am of the opinion that there is no dispute about the legal proposition of law that conviction can be based solely on the bases of circumstantial evidence. There is no such
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requirement that there must be some ocular evidence for convicting accused. The circumstances must be established and proved beyond doubt cogently pointing towards the guilt of the accused . The circumstances so proved must be in consistent with any hypothesis of innocence of accused and they shall form a complete chain. Not leaving a scope of doubt. NOW I TAKE UP CIRCUMSTANCE NO 1:
ld. Addl.P.P for State submitted that in the present case a civil litigation was pending between Mali and Khatis. Ishwar Singh and his brother were supporting the case of Mali community . Surender has to appear as a witness on behalf of malies before the court . He filed his affidavit in the court photocopy of which is proved on record as PW4/A due to this tension between the family of deceased and the accused was there. PW4 has also stated that after he filed his affidavit in the court Babu Lal younger brother of accused Rishi Om slapped him and told that he will murder his sister if appeared as witness against them. He also made a complaint to the concerned court . He was not cross examined on that
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date. The fact that there was a tension and enmity is also deposed by PW1. She stated that on 23/4/2003 accused came to her house when her husband and her sister and she were there. Accused came to her house and threatened that in case her devar appeared as a witness for malis her husband would be taught a lesson for all times to come. Accused is khati by caste. ld. Addl. P.P for State submitted that this fact is not disputed that a civil case was pending between Khaties and Malies . Even the accused has not denied the same he simply said that he is not involved in the civil litigation but the fact as deposed by PW4 that brother of accused slapped him in the court when he filed his affidavit clearly shows that there was enmity between the two . PW5 Anita had also stated that accused came to there house at about 11-12 noon and asked that Surender be counselled that he should not appear as a witness in the case or otherwise he would do wrong with the family which would be remembered by the coming seven generation and thereafter he left. The civil case was listed for 24/4/2003. they even asked Surender not to appear as a witness but he did not agree. The testimony of this witness on this issue has gone unchallanged. Ld. Addl.P.P for State
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submitted that keeping in view all these facts it is clear that there was enmity between the family of the deceased and the accused as Surender PW4 was appearing as a witness against Khatis on behalf of malis and he has also filed his affidavit Ex PW4/A in that Civil litigation on 24/4/2003.
ld. Defence counsel submitted that the accused is not a party to that civil litigation. He has nothing to do with that case. He was not involved and no such threat was extended by him, it was only an after thought to create evidence against the accused . He has been falsely implicated and this story that a civil litigation was pending in which accused was interested who threatened the family members is nothing but a fabrication only to make out a case. There is nothing on record to substantiate the contention of the prosecution that accused threatened Ishwar or his family member that they should stop Surender for appearing as a witness or he will do wrong to Ishwar. ld. Counsel submitted that even if for the sake of arguments it is presumed that there was any such enmity then it was with Surender and not with Ishwar because by eliminating Ishwar the
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testimony of Surender is not going to be wiped off. Hence this contention that there was enmity therefore accused killed Ishwar has no merit as killing Ishwar would not serve the purpose as per the prosecution story. The enmity also give reasons for the complainant family to falsely implicate the accused and for that they created the evidence in this respect. ld. Counsel submitted that in the absence of any evidence to the effect that there was a civil litigation in which accused was interested that Surender shall not appear as a witness the circumstance that there was enmity does not stand proved. ld. Counsel for accused further submitted that witnesses have also made lot of improvements in their testimony while deposing before the court about the question of enmity between the parties . It is well settled principal of law that a witness who had made improvements while deposing before the court , his testimony cannot be relied upon and had to be discarded. ld. Counsel in support of his arguments relied upon the judgment cited as Dhanna Vs. State of Madhya Pradesh reported in 1996 Cri .L.J. 3516 and Badruddin Rukonddim Karpude and others vs. State of Maharashtra reported in 1981 Crl. L.J. 729.
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ld. Counsel submitted that the onus was on the prosecution to establish the circumstance which the prosecution has failed to establish . There is no independent witness to the fact that accused extended threat to the deceased or that there was any enmity between two families. ld. Defence counsel submitted that if any such threat was extended by the accused a complaint should have been made by the deceased or his family member but no such complaint was made which clearly shows that it was an afterthought. In the absence of any such evidence the story of the prosecution cannot be believed and submitted that this circumstance is not established.
After hearing the arguments and going through the record I found that in the present case PW1 Nirmala Devi w/o Ishwar Singh stated that:
" on 23/4/2003 , accused, present in the court, had come to my house when my husband and my sister and myself were present there. My dever was a witness in a dispute between Mali and Khatis over a plot of land in the village. My dever was a witness from the side of malis. Accused present in the
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court came to our house and threatened that in case my dever appeared as a witness for Malis my husband would be taught a lesson for all times to come. After giving this threat accused went away. Accused is a khati by caste and was on the side of Khatis."
During cross examination this witness stated that she does not know the details of the parties in the suit between Malis and Khatis. She even does not know who were the witness in the suit except that her dever ( PW4) was a witness on behalf of malis. There is no cross examination to the witness about the threat extended by the accused to them. The other person who was present at the time visited the house of PW1 is PW5. She also stated that the accused came to there house at around 11-12 p.m and extended the threats. The only question to put to this witness is whether any neighbour came to their house when threat was extended to them. She stated that no neighbour came there. She also stated that the neighbourers were not told about the threats. Keeping in view the testimony of both these witnesses and the fact that there was a litigation between the malis and khatis is not disputed. There is no reason why PW5
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Anita and PW1 Nirmala Devi will depose that accused has threatened the deceased to teach a lesson. It is important to mention that though both the witnesses stated that threat was extended but they do not say that he threatened to kill. If arguments of ld. Counsel is taken into consideration that it was a concocted story then the witness instead of saying that he threatened to teach a lesson would have stated that he threatened to kill Ishwar which is not the case of prosecution. So far as the question of improvements are concerned I do not find that witnesses PW1 and PW5 had made any improvement in their statement before the court though there are certain variations but those are natural variations which are bound to occur and cannot be termed as improvements. Keeping in view all these facts coupled with the testimony of PW4 that even the brother of accused slapped when he filed his affidavit and that there was a dispute between malis and khati where he was a witness. I found that the circumstance that there was enmity between the two families and accused extended threat to Ishwar Singh stands proved. NOW I TAKE UP CIRCUMSTANCE NO 2;
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ld. Addl.P.P for State submitted that accused was seen near the gher where deceased was sleeping. ld. Counsel submitted that PW1 has stated that on 24/4/2003 at 9 p.m her husband after taking meal had went to gher for sleeping where the cattle were used to be tethered. She also went to gher and slept there. At about 12 mid night Sunita who is PW5 came to call her as Harsh nephew of PW1 was ill. She went alongwith her leaving her husband sleeping in the gher After seeing the condition of Harsh he was given medicines etc and she instead of going to gher slept in the house itself. In the morning after giving fodder to the cattle and milking the cows when she went to woke up her husband she found that he was lying in the pool of blood meaning thereby that from 12 mid night till the morning PW1 was not with the deceased. The assailant had hit the deceased between this time. PW3 Balraj Saini stated that:
'' on the night intervening 24/25-4-03 he was at farm house about 2 kms away from Mitraon where he worked as Chowkidar. I started from farm house at about 1 am for my house on foot and reached my house around 1.30 a.m. While I was coming home I
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saw Minu that is Rishi Om present in the court running away from the gali in which this murder had taken place. I learnt about murder around 7/8 am in the morning".
Ld. Addl.P.P for State submitted that according to this witness he had seen the accused running from gali where the murder had taken place and it was after 12 mid night and before 5 a.m when the deceased was alone at gher and was sleeping . This testimony of PW2 establishes that accused was present near gher when Ishwar was murdered. ld. Addl.P.P for State submitted that in view of the testimony of PW2 this circumstance also stands proved.
Ld. Defence counsel submitted that PW3 is an interested witness. He is not a reliable witness. A case is also pending between the family of PW3 and family of accused regarding land and that is why he had deposed falsely against the accused. Even otherwise according to the testimony of PW3 he had gone to police station alongwith Surender brother of
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deceased at the time when he had gone to lodge the report about the murder of his brother. He also stated that Surender met him at bus stop when he was going to police station when he accompanied him. He also told Surender that he had seen Rishi Om but this part of testimony does not found support from the testimony of Surender.
ld. Counsel submitted Surender stated that he had not gone to police station with Balraj Saini. Even otherwise if Balraj Saini had told the PW4 about the factum of seeing Rishi Om near the gher . This fact must have found mention in the complaint which is not there. Infact according to PW4 they had not told the police that they suspected anybody in this case. ld. Counsel submitted that keeping in view the fact that PW3 is having litigation with the family of accused and that PW3 met PW4 is not supported by PW4 creates doubt about the trustworthiness of this witness and cannot be relied upon. ld. Counsel further submitted that the last seen of of evidence is very week type of evidence and on the bases of this accused cannot be held guilty for the offence of murder. Even
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otherwise this witness is not trustworthy and hence no reliance can be placed upon him. ld. Counsel in support of his arguments relied upon the judgment cited as Manpreet Singh & Anr Vs. State reported in 2004 AD ( Cr.) DHC 14 , Dalip Ram and Ors Vs. State ( NCT of Delhi) reported in 2007 III AD (Cr) DHC 217 and Raj Mani Vs. State reported in 1997 (2) C.C.Cases 101 (HC) . The onus to prove this fact was upon prosecution which the prosecution has failed to prove and therefore this circumstance does not stands proved.
After hearing the arguments and going through the record I found that PW3 has specifically stated that he had seen Rishi Om running from the gali near the spot where the deceased was found dead. It was between 1 a.m to 1.30 a.m when he had seen the accused running from the gali. It has come in the testimony of PW1 that she was not in the gher between 12 mid night to 5 a.m as she was called by Sunita due to the illness of Harsh and after giving medicines to Harsh she slept in the house. The murder therefore had taken place between 12 mid night to 5 a.m.
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Keeping in view the testimony of PW3 no doubt it is there on record that civil litigation is pending between the family of PW3 and the accused but that itself does not make the witness unbelievable unless something more is brought on record. So far as the contention that testimony of PW3 does not find support from the testimony of PW4 I do not agree with the contention of the ld. Counsel that PW3 stated he met Surender at bus stand when he was going to police station. PW4 stated that he did not go with Balraj Saini to the police station in fact this witness has specifically stated that he gave a call to police station at 100 number and police reached there. Witness has specifically stated that Balraj also met him and Balraj did not tell anything that his brother has been murdered. Keeping in view all these facts I do not find anything on record that on that date Surender had gone to police station. PW3 stated that Surender had gone to police station but there is nothing on record that Surender had gone on the same day for lodging of report as complaint was lodged on the testimony of PW1 which was recorded on the spot. This witness has also stated that they returned from the police station at about 8 or 9 a.m this fact clearly shows that
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he was not stating about the date on which this incident has taken place as on that date according to the evidence and the story PW4 reached the home after 8.30 a.,m when he received the call from PW1 and thereafter he caught the bus and came home. After reaching home he made a call to the police first time at about 10.30 a.m. Keeping in view all these facts in my opinion there is no contradiction in the testimony of PW3 and PW4 and there is no reason to disbelieve PW3 on this aspect that he had seen accused near the gher of the deceased on the fateful day. I am ,therefore, of the opinion that this circumstance also stands proved.
NOW I TAKE UP CIRCUMSTANCE NO3:
ld. Addl. P.P for State submitted that accused got recovered weapon of offence i.e. danda Ex PX1 which was seized vide memo Ex PW19/E. This danda he got recovered from the gher of Kartar Singh situated near DESU office from the bushes , the danda Ex PX1 was not visible from outside it was within the special knowledge of the accused and hence the disclosure statement of accused leading to the
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recovery of dandaq is also admissible . This danda was used as weapon for causing injuries on the person of the deceased. Accused had also used bricks which were found near the dead body and were proved as Ex P-4. ld. Addl. P.P for State submitted that this wooden danda was sent to FSL for opinion and on the danda blood of human origin was detected. No doubt the blood group could not be ascertained but finding of human blood on the danda itself is sufficient. ld. Addl.P.P for State submitted that the recovery of Ex PX1 at the instance of accused and the recovery of blood of human Origin on it as is evident from the FSL report Ex PW23/H and PW23/J points towards the guilt of the accused and is also inconsistent with any hypothesis of innocence of accused.
ld. Defence counsel submitted that the investigating officer had not joined any pubic witness while effecting recovery, though police was knowing that they are going to effect the recovery of weapon of offence in pursuance to the disclosure statement of accused . This non joining of public person by the police despite the fact that the public persons were readily available on the spot and also on the way to spot. ld. Counsel submitted that in fact no such
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recovery was effected it had been planted upon the accused. So far as the detection of blood on Ex PX1 is concerned though it has come in report that blood was of human origin but the report does not show that it was of B group i.e. the blood group of the deceased in the absence of any such report this weapon of offence Ex PX1 cannot be linked with the murder of the deceased and it in any way does not connect the accused with the offence. ld. Counsel in support of his arguments relied upon the judgment cited as Lakshmi Jani Vs. State reported in 1986 Crl. L.J. 513 wherein it has been held:
"... where the origin of some stains of blood found on the knife seized from the house of accused could not be determined the same could be of no avail to prosecution.
Nor can the finding of human blood in the mud scrap seized from inside the house of the accused lead to a conclusion of the guilt of the accused if there be no other evidence in respect of the charge. Finding of some article from the person or
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possession of an accused or from the house stained with human blood, by itself, cannot lead one to a reasonable conclusion that the accused was the author of the crime of murder."
ld. Counsel submitted that keeping in view the fact that recovery of Ex PX1 itself is doubtful coupled with the fact that blood of deceased is not detected on Ex PX1 does not prove anything. The onus was upon the prosecution to establish the circumstance which is prosecution has failed to establish.
After hearing the arguments and going through the record in my opinion now it is knowing fact that the public persons generally do not come forward to help the police and be a witness. Keeping in view these facts that public persons are not interested in the coming to the court as witness in my opinion non joining of public persons is not fatal to the case. The police officials who appeared as witness have corroborated and supported each other and therefore in my opinion when they otherwise are trustworthy their testimony cannot be discarded simply because
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they are from the police force.
So far as the contention regarding blood group is concerned the report Ex PW3/H and J makes it clear that blood of human origin was detected on the danda Ex PX1. No doubt the blood group could not be detected but in my opinion the detection of blood that also of human origin is an important circumstance that points toward the guilt of the accused. Firstly because the danda was recovered from a place which was not frequented by the public persons it was lying concealed under the bushes . It was only within the special knowledge of the accused that the weapon of offence is lying concealed there from where it was recovered and thereafter during examination the blood of human origin was detected. In view of the above discussion I am of the opinion that the circumstance also stands proved.
NOW I TAKE UP CIRCUMSTANCE NO 4:
ld. Addl.P.P further submitted that accused Rishi Om when arrested got recovered one pant of grey colour and the shirt of grey colour which he was wearing at the time of incident. His clothes were
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stained with blood and on the pant and shirt of the accused blood of human origin was detected. On the pant blood of B group was detected according to the FSL report Ex PW23/H and serological report Ex PW23/J . The blood group of deceased was B which was detected on the pant Ex P-3 of the accused. ld. Addl. P.P for State submitted that recovery of the clothes which accused was wearing at the time of instance coupled with the fact that on the clothes of accused blood of human origin was detected and blood found on the pant of the accused was of B group which was of the deceased points that it is accused who killed the deceased with Ex PX1 and also hit him with Ex P4. ld. Addl .P.P for State submitted that this circumstance also stands proved which is inconsistent with any hypothesis innocence of accused and points towards the guilt of the accused.
ld. Defence counsel submitted that no public witness was joined at the time of effecting recovery .Though this recovery was effected in pursuance to disclosure statement of the accused and police was knowing that they are going to effect the recovery of valuable piece of evidence i.e. the clothes which the
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accused was allegedly wearing at the time of incident. The non joining of the public witnesses create doubt regarding the manner of recovery of the clothes. Infact no such recovery was ever effected. This was planted upon the accused.
So far as detection of blood of group B on the pant Ex PX3 is concerned that also does not conclusively points that the blood is of the deceased because according the grouping of blood besides groups A,B , O and AB there is RH factor involved i.e. The blood may be of group B positive and B negative which has not been detected in the present case. Hence the accused could not be linked with the commission of offence simply because blood of B group was found on the pant of accused unless it is determined that blood of the deceased was of B positive or B negative and the blood detected on Ex PX3 was also of the same group. ld. Counsel submitted that keeping in view all these facts that the recovery itself is not reliable and than prosecution has failed to show that blood of B group is detected on the pant is of the deceased. The circumstance that the accused was
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wearing Ex PX 2 and Ex PX3 at the relevant time of commission of offence.
After hearing the arguments and going through the record in my opinion so far as non joining of public witnesses is concerned no doubt it has been emphasized time and again that the police shall join the public witness at the time of effecting recovery but it is also known fact that generally the public does not come forward as a witness particularly when it is a criminal case and they have to appear as witness in the court. In view of this fact simply because police had not joined the public witness while effecting recovery of Ex PX2 and 3 that does not mean that this recovery at the instance of accused cannot be relied upon particularly when witnesses to these memos have fully corroborated and supported each other. There testimony cannot be discarded or discredited due to the simple reason that they are from police force. I am, therefore, of the opinion that the recovery of Ex PX2 and Ex P3 cannot be doubted and it stands proved on record that it was recovered at the instance of accused Rishi Om.
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So far as the contention of blood group is concerned as per the report Ex PW23/H and J it is clear that the blood was detected on the danda Ex PX1 and also on the pant and shirt Ex PX2 and Ex PX3 as mentioned in report Ex PW23/H . The serological report Ex PW23/J shows that on the danda Ex PX1 there is human blood on the shirt Ex PX2 . There is blood of human origin and on Ex PX3 human blood of group B had been detected which is also of group of deceased. ld. Counsel has submitted that RH factor should also mentioned as simply because RH factor is not detected does not absolve the accused particularly when there is nothing on record to suggest that this blood on the pant and on the shirt is of the accused or that he got the blood stains from any other source or the accused was having injury on his person due to which the shirt and pant got the blood stains . There is nothing of record that blood group of accused is also B and his clothes got the stains of his own blood. In view of this fact in my opinion so far as this circumstance is concerned that is established by the prosecution.
ld. Counsel for the accused further
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submitted that in the present case according to the evidence PW1 Nirmala Devi was sleeping with the deceased her husband in the gher. She went to the house at about 12 mid night as her nephew Harsh was ill and Sunita had come to call her. Thereafter she slept in the house itself. At about 5 a.m she went to the gher but surprisingly she made telephone call to Surender her devar examined as PW4 at 8.30 a.m. This delay of 3-1/2 hour is very crucial. What happened during these 3-1/2 hour? Why she did not inform her devar Surender immediately on reaching gher about the condition of her husband? This raises doubt about the truthfulness of story of prosecution. ld. Counsel submitted that infact a story was cooked during this time to make out a case of murder against the accused. ld. Counsel further submitted that even after making a call at 8.30 a.m Surender reached at home and thereafter FIR was registered at 12.50 p.m ld. Counsel submitted that this delay is also not explained in lodging the FIR. This delay is fatal to the prosecution case and in this ground itself the story of prosecution is liable to be dis believed.
I have gone through the record. PW1 has
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stated that at about 5 a.m she went to the gher but she has also stated t hat she did not go to the room first she went to the gher prepared fodder for cattles and after giving fodder to them she milked the cows and then she went to wake up her husband. Even the site plan Ex PW6/A shows that it is a separate room and unless the one enters the room it is not possible to see what is inside. PW1 must have taken considerable time in preparing the fodder for the cattle's and then milking the cows . This itself explain why she informed Surender at about 8.30 a.m about the incident. I do not find any merit in this contention that during t his 3-1/2 hour a story was concocted by PW1 and PW4 to implicate the accused. In the complaint Ex PW1/A recorded on the statement of Nirmala Devi they did not give the name of the accused as Suspect. If the contention of ld. Counsel is to be believed then they should have immediately named the accused in the complaint itself .
So far as the delay in informing the police is concerned. There is no such delay as per the the evidence on record PW4 Surender received the information on the telephone at about 8.30 a.m. He
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went home by bus. It has not come on record as to how much time it took him to reach home. But the record shows that police got information about this incident at about 10.12 a.m as is revealed from DD No 19/A . Record also shows that Inspector H.S.Meena left the police station at about 10.40 a.m after receiving the information alongwith the staff to the spot and then rukka was sent and FIR was registered. It certainly must have taken time as the IO on reaching the spot after examining the place of incident recorded the testimony of PW1 which is Ex PW1/A and then made his endorsement Ex PW22/A and send the rukka . Keeping in view all these facts I do not find any merit in the contention of ld. Counsel that there is delay in lodging the FIR or in reporting the matter to the police.
Keeping in view the above submissions and the facts in my opinion prosecution has successfully proved and established the circumstances i.e. There was enmity between the family of deceased and accused due to the litigation between malis and Khatis . In that litigation Surender PW4 brother of deceased was a witness , accused threatened the deceased and
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his family member that if Surender appeared as witness in that litigation he will teach him a lesson. On 24/4/2003 Surender filed his affidavit in the court . On the night of 24/25-4-2003 accused was seen near the gher in the gali by PW3 . In the morning dead body of deceased was found. Accused was apprehended and he got recovered danda Ex PX1, Shirt PX2 and pant PX3. On the danda and shirt blood group of human origin was found and on the pant blood of group B i.e. Of the deceased was found . There is no explanation coming forward by the defence that blood group of accused was also B or that his pant and shirt got the blood stains from any other source . All these circumstances form a complete chain and points towards the guilt of the accused. The circumstances are also inconsistent with any hypothesis of innocence of accused. In my opinion prosecution has successfully established the guilt of the accused. I, therefore, hold him guilty for the offence punishable u/s 302 of IPC and convict him accordingly.
Announced in open court (V.K.BANSAL)
on 28/7/2007 ADDL. SESSIONS JUDGE;
NEW DELHI
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IN THE COURT OF SH. V.K.BANSAL;
ADDL. SESSIONS JUDGE;
NEW DELHI
IN SESSIONS CASE NO: 46 A / 07
State Versus Rishi Om @ Minu Kana
s/o Prem Dutt
r/o H.No 33 Balmiki Gali,
village Mitraon,
Najafgarh, New Delhi.
F.I.R.No 196/03
PS: Najafgarh
U/s 302 of IPC
ORDER ON SENTENCE
02/8/2007
Present: Sh. Ahmad Khan Addl.P.P for State Convict produced from JC Sh. Ramesh Gupta counsel for accused Arguments heard on the point of sentence. ld. Addl.P.P for State submitted that accused has committed the gravest offence of murder of one person that also on the ground of enmity due the simple reason as to why his brother had appeared as witness in a civil case. ld. Addl. P.P for state submits that accused does not deserver leniency as the
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accused has committed the gravest offence. He be given severest punishment.
ld. Defence counsel submitted that no doubt a valuable life has been lost but it does not mean that the accused be sentenced to capital punishment . ld. Counsel further submits that accused is not a previous convict, he is the only earning member of family and the case also does not fall within the category of rarest of rare case and prayed for lenient view.
Keeping in view the submissions and the fact that there was enmity between two families and the accused eliminated the deceased while he was sleeping by hitting him with danda. I do not find that it fall within the category of rarest of rare case, I, therefore, sentence the convict u/s 302 of IPC to undergo life imprisonment with fine of Rs 5000/- in default 6 months RI .
File be consigned to record room.
Announced in open court (V.K.BANSAL)
on 02/8/2007 ADDL. SESSIONS JUDGE;
NEW DELHI
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