State vs Atul Jain Etc on 8 July, 2011

[Cites 36, Cited by 0]

Delhi District Court

State vs Atul Jain Etc on 8 July, 2011

267/2009
Atul Jain @ Montu & Ors

15.07.2011
Pre: Ld. APP for the state.

Ld. counsel Sh.R S Malik for accused Kuldeep Rana.

Sh. Dinesh Sharma, ld. Counsel Amicus Curiae for accused Atul

Jain.

Sh.J S Jugti, ld. Counsel for accused Rajesh Chauhan.

Arguments on sentence heard at length, vide separate detailed

order placed along side in the file, convict persons namely Atul Jain,

Rajesh Chauhan and Kuldeep Rana are sentenced to undergo

Rigorous imprisonment for 3 years for the offence u/s 201 IPC and

to pay a fine of Rs.50,000/ each in default 2 years further R.I.; and

Again convict persons are sentenced to undergo Rigorous

imprisonment for 3 years for the offence u/s 120B IPC read with

section 109 IPC. In case the amount of fine is paid it will be given to

the mother of victim/ deceased as compensation. Both the sentences

shall run concurrently. Benefit of section 428 Cr. PC be given. Copy of

the order on sentence and judgment be given to the convict at free of

cost forthwith. File be consigned to record room.

(RAJ KAPOOR)
ASJ02/West Distt.
THC : Delhi

FIR no.267/2009
State Vs Atul Jain etc
1
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL
SESSIONS JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI.

FIR No. 267/2009

State Vs Atul Jain @ Montu & Ors

Police Station Vikaspuri

Under Section 302/ 120B IPC

Convicted u/s 120B/ 201 IPC

ORDER ON THE POINT OF SENTENCE

15.07.2011
Pre: Ld. APP for the state.

Ld. counsel Sh.R S Malik for accused Kuldeep Rana.

Sh. Dinesh Sharma, ld. Counsel Amicus Curiae for accused Atul

Jain.

Sh.J S Jugti, ld. Counsel for accused Rajesh Chauhan.

ld. APP submits that offence of such types are increasing day

by day. He again argues and submits that accused persons have

already been acquitted for the offence u/s 302 IPC by giving them

benefit of doubt. They have been convicted for the offences

punishable u/s 120B/ 201 IPC and punishment under clause II of 201

IPC if punishable for life imprisonment, is punishable upto 3 years.

FIR no.267/2009
State Vs Atul Jain etc
2
Further, ld. APP submits that accused persons have also been

convicted u/s 120 B IPC which is punishable u/s 109 IPC for abetment

where no express provision is made for its punishment. On these

grounds ld. APP submits that convict persons deserve maximum

punishment.

Contrary to it, ld. Counsel Sh. R S Malik for accused Kuldeep

Rana submits that accused Kuldeep Rana was 18 years old at the

th
time of commission of offence and was studying in 12 class. He has

also old age parents who are suffering from old age ailments. He

further submits that convict is languishing in judicial custody for about

one year, nine months and twenty one days. Ld. counsel again

submits that no previous criminal antecedents have borne on record in

respect of convict. On these grounds ld. counsel for convict prays for

release of convict Kuldeep Rana on probation of good conduct taking

lenient view at the time of awarding the sentence.

ld. Counsel Sh. Dinesh Sharma, Amicus Curiae for accused

Atul Jain argues and submits that accused has also old age parents

FIR no.267/2009
State Vs Atul Jain etc
3
who are suffering from old age ailments. He further submits that

convict is languishing in judicial custody for about one year, nine

months and twenty one days. Ld. counsel again submits that no

previous criminal antecedents have borne on record in respect of

convict. On these grounds ld. counsel for convict prays for release of

convict Atul Jain on probation of good conduct taking lenient view at

the time of awarding the sentence as the deceased in this case

happens to be his real brother.

ld. Counsel Sh. J S Jugti for accused Rajesh Chauhan

submits that accused has also old age parents who are suffering from

old age ailments. He further submits that convict is languishing in

judicial custody for about one year, nine months and twenty one days.

Ld. counsel again submits that no previous criminal antecedents have

borne on record in respect of convict. On these grounds ld. counsel

for convict prays for release of convict Rajesh Chauhan on probation

of good conduct taking lenient view at the time of awarding the

sentence.

I have heard the submissions of ld. counsel for the convict

FIR no.267/2009
State Vs Atul Jain etc
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persons and ld. APP as well. Keeping in view of the facts and

circumstances of the case and family background of accused persons I

am of the view that ends of justice will be met if convict persons are

sentenced to undergo Rigorous imprisonment for 3 years for the

offence u/s 201 IPC and to pay a fine of Rs.50,000/ each in default 2

years further R.I.

Further, ends of justice will be met if convict persons are

sentenced to undergo Rigorous imprisonment for 3 years for the

offence u/s 120B IPC read with section 109 IPC. In case the amount

of fine is paid it will be given to the mother of victim/ deceased as

compensation.

Accordingly, convict persons namely Atul

Jain, Rajesh Chauhan and Kuldeep Rana are

sentenced to undergo Rigorous

imprisonment for 3 years for the offence u/s

201 IPC and to pay a fine of Rs.50,000/ each

in default 2 years further R.I.; and

Again convict persons are sentenced to

undergo Rigorous imprisonment for 3 years

FIR no.267/2009
State Vs Atul Jain etc
5
for the offence u/s 120B IPC read with section

109 IPC.

In case the amount of fine is paid it will be

given to the mother of victim/ deceased as

compensation.

Both the sentences shall run concurrently.

Benefit of section 428 Cr. PC be given.

Copy of this order and judgment be given to

the convict at free of cost forthwith. Orders

accordingly.

ANNOUNCED IN THE OPEN COURT
ON THIS 15.07.2011

(RAJ KAPOOR)
ASJ2/ West
Tis Hazari Courts, Delhi

FIR no.267/2009
State Vs Atul Jain etc
6
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL
SESSIONS JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI.

Sessions Case No. 24/3/10

Assigned to Sessions. 09/03/10

Arguments heard on 31.05.2011

Date of order. 08/07/11

FIR No. 267/2009

State Vs 1. Atul Jain @ Montu s/o Mahesh Jain,
R/o A1/110, Hastsal Road, Uttam
Nagar, Delhi.

2. Rajesh Chauhan @ Ashu s/o
Rajendra Chauhan, R/o Village
Kheragarhi, Behind Barat Ghar, Delhi.

3. Kuldeep Rana s/o Dharampal, R/o H.
No.134, VPO, Kherakalan, Delhi.

Police Station Vikaspuri

Under Section 302/ 120B IPC

Convicted u/s 120B/ 201 IPC

JUDGEMENT

1. Briefly facts of the case are that prosecution has put allegations against accused persons that as per the deposition of PW15 Smt. Indu Jain who happens to be the mother of deceased Sandeep Jain, deceased Sandeep Jain, elder brother of accused Atul Jain used to sit at Jain Tea Stall at WZB249, Hastal Road since Sandeep was 7 FIR no.267/2009 State Vs Atul Jain etc 7 years old and Sandeep used to take care of the work and also used to help his father. Accused Atul Jain never used to do any work and was always engaged in drinking habits of liquor and used to Awaragardi. Accused Atul Jain was also in the habit of involving himself in scuffle and used to steal various articles of his Bhabhi namely Sarita Jain and used to abuse her.

2. On 19.09.2009 , accused Atul Jain had taken the scooter from his father at about 506:00 AM and he returned at about 04:00 PM and when he was asked regarding his whereabouts, he did not give any satisfactory reply. He again left the house and came back at about 07:30 PM and at that time he was drunk, he again left the house and came back at about 09:30 PM and at that time he was perspiring and frightened and when PW15 his mother Smt. Indu Jain asked the reason, he told that he was feeling well and at the time when accused Atul Jain was taking dinner, 34 phone calls came on his mobile but he did not answer and abused his family members, went to the terrace of his house, did not sleep in the whole FIR no.267/2009 State Vs Atul Jain etc 8 night and was just roaming around the house. PW18, Mahesh Kumar Jain got up at 04:00 AM on the next day and accused Atul Jain asked him/ his father PW18 that as to why he had got up so early and on this his father stated that Sandeep Jain (now deceased), elder brother had not returned back and on this he told him that Sandeep Jain was involved with girls and someone might have stabbed him. The house no. A1/110, Hastal Road, Uttam Nagar was in the name of mother of accused Atul Jain and he used to say to her that if the property cannot be in his name, then he would not allow the said property in the name of any other person and on various occasions he used to speak badly against Sandeep (deceased) and used to say 'Kuch Kaand Kar Dunga".

3. On 19.09.2009, accused Atul Jain along with PW2 Rajat Pal Singh went to Nuh in Haryana at about 07:15 AM and came back at about 033:30 PM and then went to his office and lastly at about 06:15 PM, he along with PW2 Rajat Pal Singh was sitting near PVR Vikas Puri, FIR no.267/2009 State Vs Atul Jain etc 9 where his friends came. Thereafter, he along with other friends namely Rajesh and Kuldeep went to take beer bottles and came after 15 minutes and consumed beer.

4. On 20.09.2009 at about 05:00 AM, PW16 Rajesh Kumar a resident of F205, Vikas Puri, New Delhi went for morning walk at the district park, near his house and he saw a body lying on the track meant for pedestrian and during his second round in that park, when there was more visibility, PW16 Rajesh Kumar saw blood patches on the ground and then he called the police at 100 number from his mobile 9810403359 and after some time, he received a call from the police on his mobile and he told the location of the body and after 20 minutes police officials reached at the spot.

5. On the intervening night of 19/20.09.09 ASI Rajbir Singh (PW26) was on emergency duty. At about 5:30 A.M. (early morning) he received a call vide DD no.8A vide Ex.PW1/A that one dead body is FIR no.267/2009 State Vs Atul Jain etc 10 lying near school Cislea in the District Park, FBlock, Vikas Puri. On receiving this information he along with Ct. Shekhar reached the spot i.e. FBlock, District Park, near Cislea School and noticed that on the north side of the park opposite Gside of the park near a tree on footpath one dead body of a male aged about 3536 years, height 5 ft. 7 inches was lying in pool of blood. The dead body was wearing jeans pant, white blue strips shirt and sports shoes and brown coloured socks. He also noticed that there was sharp injury marks on the neck, mouth & head of the dead body. Articles were lying near the dead body and one polythene was also found near dead body containing three papers of Sandeep Jain date of birth 04/03/73; one key with its ring on it word "I Love You"; One ring (pitalnuma) studded with stones and some hairs were also lying near the dead body. One helmet was also lying and its glass was broken.

6. At the same time SHO Sh. Anand Lakra of PS Vikaspuri reached at the spot on receiving call regarding a dead body lying in a park near PVR, Vikas Puri. Crime team officials and dog squad team was FIR no.267/2009 State Vs Atul Jain etc 11 called at the spot. Spot was inspected by crime team and they lifted the exhibits and took photographs. ASI Rajvir Singh made his endorsement on the DD itself and gave the same to constable Narinder for getting the case registered. After registration of the case, the investigation was taken up by SHO (PW27). He got sent the dead body to mortuary and lifted the exhibits from the spot i.e one ring, one helmate, blood with the help of cotton, earth control, one broken peace of helmate wiser, one cement stone blood stained, hairs, one envelop containing some documents regarding insurance, one underwear and one key bunch. He kept all these exhibits in separate parcel, sealed with the seal of AL and same were taken into possession vide seizure memos Ex. PW 26/C, PW26/B, PW5/A, Ex. PW5/B, Ex. PW5/C PW5/D and PW5/E. One bullet motor cycle was also found outside the park bearing no.DL4SAX8620. Motor cycle was taken into possession vide seizure memo Ex. PW5/ F. He prepared site plan the same vide Ex.PW27/A. FIR no.267/2009 State Vs Atul Jain etc 12

7. Thereafter, he went to mortuary and got the postmortem conducted on the dead body of deceased Sandeep Jain. In the hospital doctor handed over two sealed parcels and one sealed envelop vide seizure memo Ex. PW10/A. After the postmortem, dead body was given to the relatives of deceased vide receipt Ex. PW27/B.\

8. During the course of investigation print out of call details of deceased mobile phone was taken. It was revealed that calls were found received on the phone of deceased from one mobile no. 9650939450 since 17.09.2009. Call details were also taken out of this number and it was revealed that calls were made from this mobile, only on the telephone of deceased, besides one another call on some other mobile. Police traced the person who contacted on mobile no. 9650939450 and that phone call was made from Krishna Communication Khera Kalan, Delhi. Police reached at the shop where one person namely Balwant Singh met who stated that one sim card was purchased from his shop by Kuldeep, a resident of Village Khera Kalan. I.O. deployed the ASI Jay Singh to develop FIR no.267/2009 State Vs Atul Jain etc 13 further information.

9. On 22.09.2009 ASI Jay Singh informed the I.O. that Kuldeep is the resident of village Khere. I.O. constituted one raiding party consisting of himself, his driver, SI Dharmpal, ASI Rajinder, ASI Jay Singh, Constable Amit, and the operator. They all went to village Khera. ASI Jay Singh met and informed that accused person is present at the bus stand of village Khera. Many villagers were requested to join the raiding party by telling the facts of the case but none came forward to join investigation. Thereafter, they went to bus stand village khera and found that three persons were siting there. They were overpowered those three persons namely Kuldeep, Rajesh and Pankaj ( A Juvinile). I.O. interrogated accused persons and recorded discloser statements of Kuldeep and Rajesh vide Ex.PW 22/A and Ex. 22/B. Accused person were arrested vide their personal search memos and arrest memos Ex. PW22/C , PW22/D, PW22/E and PW22/F respectively. Accused Pankaj's father who stated that his son is a minor and on the next day he FIR no.267/2009 State Vs Atul Jain etc 14 produced the documents regarding his date of birth.

10.Accused Kuldeep got recovered one blue colour Jeans pant and one shirt from the bed from his residence, I.O. kept clothes in a parcel and it was sealed with a seal of Al and same were taken into possession vide seizure memo vide Ex.PW22/H. Other accused namely Rajesh got recovered one black colour jeans pant and green colour TShirt from his residence. I.O. kept the same in another parcel, sealed it with the seal of AL, taken the same into possession vide seizure memo Ex. PW22/I. I.O. had also taken into possession one jeans pant and one Tshirt from the residence of Pankaj kept the same in another parcel, sealed it with the seal of AL and same was taken into possession vide seizure memo which is mark C.

11.I.O. had also taken into possession one Bajaj motorcycle bearing no. 9739 vide seizure memo Ex. PW/22J. Accused Kuldeep and Rajesh had also pointed the place of occurrence and then I.O. FIR no.267/2009 State Vs Atul Jain etc 15 prepared the pointing out memo vide Ex.PW22/N and Ex.PW22/O. Subsequent to the disclosure statements of accused persons, accused Atul Jain brother of deceased was called on 22.09.2009. He was interrogated and his discloser statement vide Ex.PW22/P was recorded. Accused Atul Jain was arrested vide personal search memo and arrest memo Ex. PW22/Q and PW22/R respectively. Subsequent to the discloser statement of accused Kuldeep, he got recovered one iron rod from the side of a wall near JJ colony Hastal vide seizure memo Ex. PW 22/M. Sketch of iron rod was prepared vide Ex. PW22/L.

12.At the instance of accused Rajesh @ Ashu one knife was recovered, at some distance from where iron rod was recovered vide sketch of knife Ex. PW22/J and seizure memo Ex. PW 22/ A. One mobile phone without sim card was also recovered from the house of juvenile Pankaj and call was made from this mobile. Thereafter, they came back to the police station and deposited the FIR no.267/2009 State Vs Atul Jain etc 16 case property in the Malkhana. Juvenile Pankaj was kept at the PS in the presence of his father. On the next day, Juvenile Pankaj was produced before juvenile court and remaining three accused were produced before the concerned court Tis Hazari. Accused Atul jain was sent to JC and one day PC of accused persons namely Kuldeep and Rajesh was taken. No recovery could be effected during the PC. Supplementary statements of accused Kuldeep and Rajesh were recorded vide Ex. PW 22/S and PW22/T.

13.On 26.09.2009 draftsman SI Mahesh inspected the sight and took the rough notes and later on prepared the scaled site plan. I.O. sent the exhibits containing iron rod and knife to the doctor for obtaining his subsequent opinion. The subsequent opinion was taken on record. I.O. sent the exhibits to the FSL Rohini and prepared inquest papers , recorded the identification statement and had collected the postmortem report. He recorded the statement of witnesses and on completion of investigation challan was prepared and filed to the court.

FIR no.267/2009 State Vs Atul Jain etc 17

14.Mobile phone which was recovered at the instance of juvenile Pankaj has been exhibited as Ex.P1. One jeans Pant and Shirt have been exhibited as Ex. P2 produced in parcel no.9 . Another Jeans Pant and Shirt taken out from parcel no.10 have been exhibited as Ex. P3. From another sealed parcel bearing no.11. one Jeans Pant and Tshirt were taken out and have been exhibited as Ex. P4. Knife which was recovered at the instance accused Rajesh is Ex. P5. One iron rod is Ex. P6. One key bunch having one key only is Ex. PX. One underwear lifted from near the spot is Ex.PY.

15.After completion of the investigation which was conducted by the police officials the challan was filed to the court of ld. MM concerned and the same was committed to the court of Sessions which was received on 09.03.2010. Consequent upon committal of the case to the Court of Sessions charge for the offences u/s 302/120B/ 34 IPC was framed against all the accused persons. FIR no.267/2009 State Vs Atul Jain etc 18

16.To prove and substantiate its case the prosecution has examined 27 witnesses namely PW1 ASI Jagbir Singh - duty officer who recorded DD no.8A vide Ex.PW1/A. Thereafter, he also recorded FIR of the present case vide computerized copy of the same Ex.PW1/B and made endorsement on the rukka vide Ex.PW1/C. Further, investigation of the case was taken over by Insp. Anand Lakhra. In crossexamination no contrary evidence has come on record; PW2 Rajat Pal Singh - is the witness to the fact that he had seen accused Atul Jain with accused Rajesh and Kuldeep on 19.09.2009 at about 6.15 p.m. while they were seating near PVR Vikaspuri to consume liquor. This witness has been crossexamined at length; PW3 Dr. Sushil Kumar Chaurasia, Sr. Resident has conducted the postmortem on the dead body of deceased Sandeep Jain on 20.09.2009 vide PM report Ex.PW3/A. He opined the cause of death that death was shock, subsequent to the blunt injuries to the head and penetrating injuries to the neck. Injuries to the head and neck are sufficient to cause death in ordinary course of nature FIR no.267/2009 State Vs Atul Jain etc 19 individually as well as in combination. All injuries are antemortem in nature and same in duration. He has also given subsequent opinion on 1409.09 on weapon of offence. He opined that injuries no.1, 2 and 3 of neck are possible by the weapon of offence (knife) and external injuries no.5,7,8,9 and 10 are possible by iron rod. This witness has also been crossexamined at length PW4 Ct. Sher Singh is a formal witness who delivered the copies of FIR of present case to ld. MM, Jt. CP, DCP and ACP on 20.09.2009. This witness has also been crossexamined at length. PW5 Ct. Narender Kumar is the witness who visited the spot along with I.O. on 20.09.2009 in the morning and he got registered the case on the basis of rukka given to him by ASI Rajbir. This witness has been crossexamined at length. PW6 SI Kuldeep Singh is the witness from Crime Team West Distt. He has also been crossexamined at length. PW7 HC Subhash Chander is the formal witness being MHCM in police station Vikaspuri. This witness has not been cross examined. PW8 HC Sanjay is the formal witness who deposited 8 FIR no.267/2009 State Vs Atul Jain etc 20 pullandas to FSL Rohini on 03.11.2009. This witness has also not been crossexamined. PW9 Bijender Singh Rana - Totally hostile witness has denied to have given any statement to the Police with regard to this case. He had denied the suggestion of ld. APP that accused Kuldeep and Rajesh had visited his shop on 17.09.2009 and that they belong to his village. This witness has not been cross examined. PW10 Shekhar is the witness who accompanied the I.O./ ASI Rajbir on receiving DD no.8A. He got exhibited the seizure memo of articles which were handed over to him by the doctors vide Ex.PW10/A. This witness has been crossexamined. PW11 ASI Jai Singh is the witness who was the member of raiding party to the arrest of accused persons on 22.09.2009 on secret informer. This witness has been crossexamined at length.

17.PW12 Ct. Rakesh is the formal witness being photographer who took 16 photographs of the spot on 20.09.2009 vide photographs Ex.PW12/A (Collectively) and negative are Ex.PW12/B collectively. FIR no.267/2009 State Vs Atul Jain etc 21 This witness has also been crossexamined at length. PW13 Bharat Sharma has been got declared hostile by ld. APP who stated that he has nothing to say in this case. He denied the fact that he had told to the police that Kuldeep and Rajesh had come with another associate Ravi to his shop at 6 p.m. on 20.09.2009. This witness has not been crossexamined. PW14 Ravi Rana - another hostile witness. He has also denied the fact that accused Kuldeep Rana and Rajesh belong to his village Kheda Kala. He denied the fact that accused Kuldeep Rana and Rajesh called him at Main Bus Stand Kheda Kala on 20.09.2009 as they wanted to get their mobile checked. PW15 Smt. Indu Jain - is the most material witness in this case being the mother of deceased and accused Atul Jain. She has categorically deposed against her own son. This witness has been crossexamined at length. PW16 Rajesh Kumar is the first person who made a call at 100 number on seeing the dead body of deceased. This witness has not been crossexamined. PW17 SI Mahesh Kumar is a formal witness being draftsman. He visited the FIR no.267/2009 State Vs Atul Jain etc 22 spot at the instance of I.O. on 26.09.2009 and prepared the scaled site plan vide Ex.PW17/A. This witness has been crossexamined. PW18 Mahesh Kumar Jain is the most material witness being father of deceased and accused Atul Jain. He has also deposed against accused but he has turned hostile on some points. PW19 Ct. Raj Kumar is the formal witness who deposited two pullandas to FSL Rohini on 04.11.2009. This witness has not been cross examined. PW20 Ct. Jaipal Singh is also a formal witness who deposited two sealed parcels to mortuary DDU hospital on 12.10.2009 vide RC no.86/21. This witness has not been cross examined.

18.PW21 Sarita Jain is the wife of deceased Sandeep Jain who got released motorcycle no. DL 4S AX 8620 on superdari vide her application and Superdarinama Ex.PW21/A and B respectively. This witness has not been crossexamined. PW22 ASI Rajender Singh is the witness to the arrest of accused persons on 22.09.2009 and FIR no.267/2009 State Vs Atul Jain etc 23 subsequent recoveries. PW23 Ct. Amit is the formal witness who was in Crime Team as dog handler. This witness has been cross examined. PW24 Satya Prakash is the formal witness who has deposed that on 19/20.09.2009 he was posted at Communication PHQ in the control room and he received a call at 5.29 a.m. regarding lying of dead body of deceased in near Fblock, Distt. Park, Vikaspuri Cislea School. In this regard he got exhibited the form M1 as Ex.PW24/A which was filled by him. He has also got exhibited the sheets of log book as Ex.PW24/B1 and PW24/B2. This witness has not been crossexamined. PW25 Insp. Dharampal is the witness who was the member of raiding party to the arrest of accused persons and subsequent recoveries on 22.09.2009. This witness has been crossexamined at length. PW26 ASI Rajbir Singh is the 1 I.O. of the case who firstly visited st the spot where dead body was lying on receiving DD no.8/A along with Ct. Shekhar and PW27 Insp. Anand Lakhra (under nd suspension) is the 2 I.O. of the case who took over the FIR no.267/2009 State Vs Atul Jain etc 24 investigation of this case being heinous crime. This witness has been crossexamined at length.

19.Having perused the testimonies of all witnesses I found that PW2 Rajat Pal Singh is the witness to the fact that he had seen accused Atul Jain with accused Rajesh and Kuldeep on 19.09.2009 at about 6.15 p.m. while they were seating near PVR Vikaspuri to consume liquor. PW9 Bijender Singh Rana has turned hostile and he denied to have given any statement to the Police with regard to this case. He has also denied the suggestion of ld. APP that accused Kuldeep and Rajesh had visited his shop on 17.09.2009 and that they belong to his village. PW13 Bharat Sharma has also been got declared hostile by ld. APP who stated that he has nothing to say in this case. He denied the fact that he had told the police that Kuldeep and Rajesh had come with another associate Ravi to his shop at 6 p.m. on 20.09.2009. PW14 Ravi Rana is another hostile witness. He has also denied the fact that accused Kuldeep Rana FIR no.267/2009 State Vs Atul Jain etc 25 and Rajesh belong to his village Kheda Kala. He denied the fact that accused Kuldeep Rana and Rajesh called him at Main Bus Stand Kheda Kala on 20.09.2009 as they wanted to get their mobile checked. PW15 Smt. Indu Jain is the most material witness in this case being the mother of deceased and accused Atul Jain. She has categorically deposed against her own son. This witness has been crossexamined at length. PW18 Mahesh Kumar Jain is the most material witness being father of deceased and accused Atul Jain. He has also deposed against accused but he has turned hostile on some points.

20.PW 6 SI Kuldip Singh who came to the witness box deposed that on 20 September 09 he was posted as Incharge Crime Team West District. A call was received from the control room West District and he had gone to F Block Distric Park Vikaspuri near PVR Vikaspuri along with the Crime Team comprising of Ct.Rakesh photographer and HC Uddham Singh as finger print expert. They inspected the FIR no.267/2009 State Vs Atul Jain etc 26 scene of crime and the report was prepared and the same was handed over to the IO and necessary instructions were given to the IO. The scene of Crime was got photographed but no chance prints could be found and none could be lifted. He had prepared the report vide Ex. P7/A. In the crossexamination of PW 26 ASI Rajbir, 1 IO admitted that when they reached the spot st lot of blood was lying there. The sample of blood was lifted from the spot. The blood was lifted after the inspection of the crime team. He had seen the place of occurrence and dead body minutely. He did not observe the foot prints at the spot. He did not find or observed the finger prints on the dead body. Crime team did not find foot prints & finger prints on the dead body. Before sending the rukka nothing was lifted by them. Motorcycle was not found on the spot before sending the rukka. No FSL witness has been examined in this case.

21.As far as the injuries are concerned, PW3 Dr. Sushil Kumar FIR no.267/2009 State Vs Atul Jain etc 27 Chaurasia, Sr. Resident has conducted the postmortem on the dead body of deceased Sandeep Jain on 20.09.2009 vide PM report Ex.PW3/A. He opined the cause of death that death cause being shock, subsequent to the blunt injuries to the head and penetrating injuries to the neck. Injuries to the head and neck are sufficient to cause death in ordinary course of nature individually as well as in combination. All injuries are antemortem in nature and same in duration. He has also given subsequent opinion on 1409.09 on weapon of offence. He opined that injuries no.1, 2 and 3 of neck are possible by the weapon of offence (knife) and external injuries no.5, 7, 8, 9 and 10 are possible by iron rod which have been exhibited vide Ex.PW3/A and Ex.PW3/B.

22.For the sake of brevity and convenience of the case let the statement of PW15 Smt. Indu Jain be reproduced verbatim which is as under: "My deceased son Sandeep Jain used to sit at Jain Tea Stall at Hastsal road at WZB249 since he was seven years old. He used to take care of the work and also used to learn work from FIR no.267/2009 State Vs Atul Jain etc 28 his grand father and later on he also used to sit in the shop and take care of the shop along with his father. My deceased son was very intelligent and when he came of age he used to tell his father that his father should sit at home and that he will take care of the shop. My youngest son Atul Jain present in court today never used to do any work and he was engaged in drinking of liquor and 'Awaragardi". We all along with my deceased son Sandeep Jain used to reason with Atul Jain that he should mend his ways. He also used to steal money for purpose of liquor. Accused Atul Jain also used to abuse his elder Bhabi Sarita Jain. On 19 September 2009 Atul th Jain took Scooter from his father at about 56AM and told that he would come into three hours. He returned back at about 4PM and when we asked as to where he has gone he did not give any satisfactory reply. After coming back at 4PM Atul Jain again left the house and returned back at about 7.30PM. He had drank liquor. He again left the house and returned back again at about 9.30PM. Atul Jain at that time was perspiring and was frightened. I asked him the reason and he told me that he was not feeling well. While he was having his dinner there were 34 phone calls but he did not answer the phones and abused us. He went to the terrace of the house and he did not sleep the whole night and was just roaming around the house. My deceased son Sandeep Jain had not returned back to the house. My husband had got up at about 4AM the next day and Atul Jain asked him as to what was the reason and why he had got up. I told Atul Jain that Sandeep Jain had not returned back. Atul Jain told me that Sandeep Jain was involved with girls and someone might have stabbed him.

The house A1/110 Hastsal road Uttam Nagar is in my name and I am the registered owner. Atul Jain used to say that if the property cannot be in his name he will not led the property to be anybody else.

Next day on 20/09/2009 when the body of Sandeep Jain came to the house Atul Jain took the five year boy of deceased Sandeep Jain to the market and he was brought back to the house by his Mama. I do not want my son Atul Jain to be alive and I want him to be hanged. (Saying this the witness has started crying). My whole family has been destroyed by the act of Atul Jain. Police has not recorded my statement in the present case. FIR no.267/2009 State Vs Atul Jain etc 29 XXXXXXXXBy Sh.Dinesh Sharma Amicus Curie for the accused Atul Jain and Rajesh The name of my son elder to Atul Jain is Pankaj Jain. Deceased Sandeep Jain was married and having three children. I have not told the fact of Atul Jain taking the Scooter and going somewhere to Sarita Jain or to my husband. Vol..... They already knew. I have not told my husband or Pankaj Jain and Sarita Jain about the fact of Atul Jain having received 34 phone calls. I have not told the aforesaid persons the fact that Atul Jain had told me Sandeep Jain was involved with girls and someone might have stabbed him. I have never met the Police. I had not gone to the hospital at the time of Post Mortem of my deceased son. The Police have not met me regarding the ownership of my property. I have not gone to the PS or some Senior Officers for getting my statement recorded. It is wrong to suggest that accused did not used to drink liquor. It is further wrong to suggest that my deceased son used to drink liquor and was fond of girls. I know Suman whose my neighbour. It is wrong to suggest that nothing as deposed by me in the examination in chief has ever occurred. It is further wrong to suggest that I am deposing falsely due to the pressure of the Police."

23.As per the deposition of PW15 Smt. Indu Jain, mother of accused Atul Jain, accused Atul Jain used to sit at Jain Tea Stall at WZ B249, Hastal Road since Sandeep was 7 years old and Sandeep used to take care of the work and also used to help them. Accused namely Atul Jain never used to do any work and was always engaged in drinking liquor and used to Awaragardi and due to this reason all his family members used to reason with Atul Jain so that he should mend his ways. Accused Atul Jain was also in the habit of FIR no.267/2009 State Vs Atul Jain etc 30 involving himself in scuffle and used to steal various articles of his Bhabhi namely Sarita Jain and used to abuse her. On 19.09.2009, accused Atul Jain took the scooter from his father at about 506:00 a.m. and returned at about 04:00 p.m. and when he was asked regarding his whereabouts, he did not give any satisfactory reply. He again left the house and came back at about 07:30 P.M. and at that time he was drunk, he again left the house and came back at about 09:30 PM and at that time he was perspiring and frightened. PW15 mother of accused Atul Jain asked Atul Jain, the reason, he told that he was not feeling well and at that time when he was taking dinner, 34 phone calls came but he did not answer and abused his family members, went to the terrace of his house, did not sleep in the whole night and was just roaming around the house.

24.As per deposition of PW18 when he got up at 04:00 a.m. on the next day and accused Atul Jain asked his father as to why he had got up so early and on this his father stated that Sandeep Jain (elder brother of accused Atul Jain) had not returned back and on this FIR no.267/2009 State Vs Atul Jain etc 31 accused told his father that Sandeep Jain was involved with girls and someone might have stabbed him.

25.It has also come on record in the testimony of PW15 that house no. A1/110, Hastal Road, Uttam Nagar was in the name of mother of accused Atul Jain and Atul Jain used to say to her that if the property cannot be in his name, then he would not allow the said property in the name of any other person and various occasions he used to speak badly against Sandeep and used to say 'Kuch Kaand Kar Dunga".

26.After recording the statements of prosecution witnesses, statements of accused persons u/s 313 Cr. P. C. were recorded in which they denied all the allegations and stated that they have been falsely implicated in this case. However, they did not lead any defence evidence.

27.Thereafter, case was fixed for final arguments. I have heard FIR no.267/2009 State Vs Atul Jain etc 32 arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.

28.Ld. APP for the State argued and submitted that there are sufficient evidence on record to convict the accused persons for the offences u/s 302/120B/34 IPC as per deposition of mother and father of accused Atul Jain. Ld. APP further argued that medical evidence is also against accused persons. He also argued and submitted that there is subsequent recovery of alleged weapons of offence and other articles of disclosure statements of accused persons.

29.Contrary to it, in brief the arguments of ld. counsel Sh. R S Malik for accused Kuldeep Rana are that there are several contradictions and discrepancies in the testimonies of all the witnesses of the prosecution. There is no eye witness, there is no mens rea, no case of theft and also that there is no forensic evidence against the accused persons etc. It has also been submitted that present case FIR no.267/2009 State Vs Atul Jain etc 33 does not even have any circumstantial evidence as there are only snaps in the so called chain of circumstantial evidence. He further argued that there was no motive to cause murder of the deceased and that chain of circumstantial evidence is missing. There is no last seen evidence.

30.Ld. counsel Sh. G S Jugti for accused Rajesh Chauhan also argued at length and submitted that it is a case where no eye witness is present, it is a case where accused and the victim are not shown to be present at any time, it is a case where it has two interpretations, one is that the victim was involved in love with one lady whose key ring speaks "I Love You", and this doubt shows that it may be a case of the parents of the girl who might have known this affair and finally leading to the honourkilling, it is a case where the accused are not connected with any mobile phone. Ld. counsel again argued that it is also a case where the accused are involved only through disclosure statements, recovery memos, these disclosure statements are found to be fabricated one since no site FIR no.267/2009 State Vs Atul Jain etc 34 plan and also no independent witness has been shown to have joined in the investigation. Ld. counsel again submitted that dead body of the victim was recovered on 20.09.09 and consequently their arrest under disclosure statements is wrong and all the accused are poor labourers of the society, who have been involved in the case due to their helplessness from all sides. Telecom Company has not been examined. Mere production of call details on the record cannot establish that as to what talks were held, what transpired during the talks, even the evidence cannot be read against the accused. He also argued and submitted that there are no finger prints on the knife allegedly recovered from the accused Rajesh.

31.Ld. counsel Sh. Dinesh Sharma for accused Atul Jain argued and submitted that accused Atul Jain is innocent and has been falsely implicated in the present case. He did not commit any offence. There was no conspiracy on his part and he did not make any disclosure statement. Police officials obtained his signatures on some blank papers forcibly. He did not point any place of FIR no.267/2009 State Vs Atul Jain etc 35 occurrence and nothing was recovered at his instance and the case property has been planted upon him. Ld. counsel again argued and submitted that there is no criminal conspiracy. His mother is telling a lie. He further argued and submitted that prosecution has not shown and attributed any motive on the part of the accused persons as to why they have committed such heinous crime. It is clear that the present case is a case of motive - less murder, where there is no eye witness, and the chain of link is also missing at all stages in the case. Ld. counsel again argued and submitted that it has been tried by the prosecution to make out that there was a property dispute between the family members and accused Atul Jain. All other accused conspired by Atul Jain to commit the crime. The property was owned by the mother of accused Atul Jain, then in that situation the murder has been committed of the mother of accused Atul Jain not of his brother Sandeep Jain. It is also argued and submitted that dead body of deceased Sandeep Jain was identified by accused Atul Jain in the park in morning, so the participation of accused Atul Jain along with other accused persons becomes FIR no.267/2009 State Vs Atul Jain etc 36 doubtful. It is not possible that accused committing murder will again come at the spot of occurrence and will identify that the dead body was of his brother in the public park.

32.In support of their contentions ld. counsel for accused persons relied upon the following citations: On the point of Motive :

1. Harish Chand @ Billa V. The State, 1995 (2) CCC - 503 it has been held that: "the law is well settled that the absence of motive in the case of circumstantial evidence goes heavily in favour of the accused."

2. Tarseem Kumar Vs The Delhi Admn. 1995 Cri. LJ 470 again it was observed that: "But in a case which is based on circumstantial evidence, motive for committing the crime on the part of accused assumes greater importance. .............In the present case, no motive on the part of the appellant to commit the murder of Gulshan, has been suggested or established on behalf of the prosecution."

On the point of Disclosure Statements :

3. Satish Kumar Vs State 1995 (3) CC Cases 252 (HC) in this case it has been observed that: "Nonjoining of independent witness during disclosure statement - Where no efforts were made by the police to join any independent witness before recording disclosure statement of the accused..."

"Recovery Recovery of weapon of offence - Where the FIR no.267/2009 State Vs Atul Jain etc 37 group of blood appearing on the said article could not be deciphered by the experts and only human blood was found on that article, it cannot be linked with the crime in question."

4. 1995 (3) CC Cases 252 (HC) Satish Kr. Vs State in this case it has been observed that: "Now, we are left only with the evidence with regard to the disclosure statement allegedly made by the appellant and recovery of blood stained knife and blood stained shirt at the instance of appellant. ........ It is not understood how this basic principle of investigation has been lost sight of by the investigation officer that at the time of interrogating the accused and for making the recoveries, which are admissible u/s 27 of Evidence Act, a sincere effort must be made by the Investigating Officer to join independent public witnesses."

5. I (2010) DLT (Cri) 832 (DB) Surender Vs State again in this case it has been observed that : "Recovery of blood stained clothes at instance of appellant from an open filed, accessible to all. Mere recoveries of ordinary articles like blood stained clothes or knife stained with human blood are weak evidence, insufficient to sustain charge of murder. Facts of the case warrant benefit of doubt to be granted to appellant.

Disclosure statement - Confessional disclosure statement by an accused is wholly inadmissible in evidence save and except part thereof to which Section 27 of the Evidence Act is attracted.

6. II (2009) DLT (Cri) 959 (DB) Raju Vs State in this case again it has been observed that :

"Mere recovery of blood stained knife or an axe and / or recovery of blood stained clothes satated to be worn by assailant pursuant to disclosure statement of assailant, without any further evidence, are insufficient circumstances leading to conclusion on reasonable hypothesis that person concerned is guilty of offence........."

7. AIR 1998 SC 1686 State of Gujrat Vs Mohd. Atik in this case it has been observed that : "Evidence Act (1 of 1872), S.10 Scope. Any statement made by accused after his arrest. Whether confession statement of FIR no.267/2009 State Vs Atul Jain etc 38 accused who is not alive would not be of any evidentiary use. Once the common intention ceased to exist any statement made by a former conspiration thereafter cannot be regarded as one made "in reference to their common intention". In other words, a postarrest statement made to a police officer, whether it is confession or otherwise, touching his involvement in the conspiracy, would not fall within the ambit of S. 10 of the Evidence Act. The the confessional statement of accused in the instant case who is no more alive now thus vanishes from the ken of evidentiary use.

On the point of Common Intention :

8. Sita Ram Vs State (Delhi Admn. 1997 (II) AD (Delhi) 157 in this case it was held that: "It is pertinent to note that the persons shown to be the witnesses to Ex.PW13/B and PW13/C are SI Sri Chand and Ct. Navin Kumar, both of police station Alipur. It need hardly be said that these two witnesses cannot be regarded as independent witnesses so as to lend assurance, firstly to the making of the first part of the statement i.e. disclosure statement............. It is more important to note that besides the witnesses to be disclosure statement and discovery Panchanama being not before the independent witnesses, neither of them has been examined to prove the making of the first part of the statement voluntarily to point out the place and produce the weapon and secondly the accused having led the witnesses and the IO to the place wherefrom the accused is stated to have taken out and produced the weapon in question."

    On   the   point     of    recovery
                                             weapon   ;     search   and  
                                         of
   seizure memo ;  blood stained clothes:

9. Raju Vs State (2009) II DLT Crl. 959 in this case it has been observed that: "The seizure memo of the knife and the shirt i.e. Ex.PW10/B and Ex.PW10/G evidence that the seal of DN was affixed on the parcel prepared in which the knife and the shirt were kept. We have noted herein above that the appellant was arrested ........on 18.03.2005. The incident took place at ....... on 17.03.2005.......... The ld. Trial Judge has ignored that under the circumstances there was a clear possibility of the knife and the shirt of the appellant being tampered with, more so far the reason, the seal DN Remained with the I.O. We note that not a single witness to the seizure memo has FIR no.267/2009 State Vs Atul Jain etc 39 deposed that after seizure the article concerned was put inside a parcel which was sealed with seal of DN and that the said seal was handed over by the IO to somebody else."

10.Pawan Kumar Vs Delhi Admn. 1988 (2) RCR 421 in this case it has been observed that : "It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like .... p.m., where there is lot of rush of commuters for boarding the buses to their respective destinations." 11.1989 Cri.L J 1585 Municipal and etc Vs State of Madhya Pradesh in this case it has been observed that: "Two independent and respectable inhabitants of locality not called to witness search. Failure of prosecution to justify non compliance with provisions of S. 100 (4). Search and seizure vitiated."

12.Ran Singh Vs State (Delhi) 1988 CC Cases 456 (HC) in this case it has been observed that : "23. The only piece of evidence which can be read against accused is that when arrested on 30th of April 1983 he was found wearing blood stained clothes (Kurta Ex.P3 and Pyjama Ex.P4). On analysis of the blood found on the clothes it matches with blood group "B" of the deceased. There is no doubt that this fact by itself raises a strong suspicion against him. However, it cannot be made the basis of conviction as the prosecution failed to prove that the blood group of the deceased is not "B" as well. The probability of two human beings having the same blood group cannot be ruled out, especially, as his blood sample was not got analysed." On the point of finger prints on weapon :

13. Dater Singh Vs Stae of Punjab AIR 1974 SC 1193 in this case it has been observed that: "It was not sent for examination of any finger prints on it. Had there been such evidence of the appellant's finger prints on the gun, it would have furnished strong corroborative evidence. In the circumstances of the case, we find it difficult to link the gun with the actual weapon with which the murder was committed.

it is not inconceivable that it was left deliberately outside by someone to confuse the investigating authorities." FIR no.267/2009 State Vs Atul Jain etc 40 On the point two views if emerged :

14.Kali Ram Vs State of Himachal Pradesh 1973 (2) SCCs in this case it has been held that:

"The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this court in the case of Shivaji Sahabrao and Anr. (supra) as is clear from the following observations:

'Certainly it is a primary principle that the accused must be and not merely may by guilty before a court can convict and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations."

On the point of last seen evidence/ eye witness:

15.2009 [2] JCC 1206 Kalloo Passi Vs State again it has also been held that:

"In the instant case, there is no evidence to show that the deceased was last seen in the company of appellant. .... In such circumstances....... abscondence of an accused person is considered a weak link in the chain of circumstances."

16.1971 CAR 323 (SC) State of UP & Anr. Vs Jaggo @ Jagdish & Ors. in this case it has been observed that :

"It is true that all the witnesses of the prosecution need not be called but it is important to notice that the witness whose evidence is essential to the "unfolding of the narrative" should be called. This salutary principle in criminal trials has been stressed by this Court in the case of Habeeb Mohd. V. The State of Hyderabad(1) for eliciting the truth. The absence of Ramesh from the prosecution evidence seriously affects the truth of the prosecution case."

On the point of tests:

17.'AIR 1984 SC 1622 - Sharad Birdhichand Santa Vs State of Maharastra'; and State of MP Vs Ramprakash & Ors 1989 Crl. LJ 1585 In both cases court has discussed about five golden principles to take view that chain of circumstances must be complete and FIR no.267/2009 State Vs Atul Jain etc 41 must exclude every possible hypothesis except that which proves the guilt of the accused persons.

On the point of Investigation :

18.Kishore Chand Vs State of Himachal Pradesh AIR 1990 SC 2140 in this case it has been observed that : "All circumstances from which conclusion of guilt is to be drawn must be fully established. Facts so established must be consistent with hypothesis of guilt of accused. Any circumstance consistent with innocence of accused. He is entitled to benefit of doubt."

On the some other points :

19.Shard Vs Maharashtra AIR 1984 Supreme Court 1622 it has been held that :

"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established."

20.AIR 1990 SC 2140 - Kihore Chand Vs State of Himachal Pradesh in this case it was observed that:

"........... The right to defence includes right to effective and meaningful defence at the trial. The poor accused cannot defend effectively and adequately. ......... Before accusing an innocent person of the commission of a grave crime like the one punishable u/s 302 IPC, an honest, sincere and dispassionate investigation has to be made and to feel sure that the person suspected of the crime alone was reasonable to commit the offence."

21.Kanhai Mishra Vs State of Bihar 2001 (3) SCC 451 in this case it has been observed that non making of witness who had informed the police about murder by the I.O. is the fact that I.O. suppressed the fact to unfold the truth.

22.State of Karnataka Vs L. Munishwamy & Ors. 1977 SCC (Cri) 404 in this case it was observed that : FIR no.267/2009 State Vs Atul Jain etc 42 "It is undisputed that the respondents were nowhere near the scene of offence ar the time of the assualt what is alleged against them is that they had conspired to commit assault. This, we think, is one of those cases in which a charge of conspiracy is hit upon for the mere reason that evidence of direct involvement of the accused is lacking."

23.Shankarlal Gyarasilal Dixit Vs State of Maharashtra in this case it has been observed that: "..........Unfaithful husbands, unchaste wives and unruly children are not for that reason to be sentenced to death if they commit murders unconnected with the state of their equation with their family and friends."

24.AIR 1974 SC 1193 Datar Singh Vs State of Punjab it has been observed that :

"Had there been finger prints on the gun it would have furnished the strong corroborative evidence. Therefore, it is difficult to link the accused with the gun."

25.AIR 1976 SC 975 Bhagirath Vs State of Madhya Pradesh in this case it has also been observed that :

"The prosecution can succeed by substantially proving the very story it alleges. It must stand on its own legs. It cannot take advantage of the weakness of the defence. Nor can the court, on its own make out a new case for the prosecution and convict the accused on that basis."

33.The ld. counsel has also mentioned the following citations but he has not supplied the same.

26. 1978 Cri. LJ 1001 Nannhey Vs State;

27. 1997 VI AD (Delhi) 18 Karambir Vs State;

28. AIR 1979 SC 1762 Dhan Kumar Vs Munical Corporation of Delhi;

29. AIR 1977 SC 1213 Jimmy Homi Bharucha Vs State of Maharashtra;

34.The sum and substance of the above said citations are that the magnitude of motive can only be ascertained with regard to the FIR no.267/2009 State Vs Atul Jain etc 43 background of the parties like nurturing, educational background and status of income etc. The note of Rs.100/ can be motive in some case and in some other case even Rs.1 crore cannot be the motive. These distinctions largely exist on account of different different understanding, sensitivity, passions and emotions shared by each and every individual in which one is living. The Common intention is a state of mind of an accused which can be inferred objectively from his conduct displayed in the course of commission of the crime as also prior and subsequent attendant circumstances. Mere participation in the crime with others is not sufficient to attribute common intention to one of others involved in the crime. The subjective element in common intention, therefore, should be proved by objective test. It is only then that one accused can be made vicariously liable for the acts and deeds of the other coaccused. There should be basic principle of investigation that at the time of interrogating the accused and for making the recoveries, which are admissible under section 27 of the Evidence Act, a sincere effort must be made by the Investigating Officer to join independent public FIR no.267/2009 State Vs Atul Jain etc 44 witnesses. It is not the case that no such public witnesses were available or any sincere effort was made in joining the public witnesses but without success. The blood stained found on clothes cannot be made the basis of conviction as the probability of two human beings having the same blood ground cannot be ruled out, especially as his blood sample was not got analysed. The possibility that a labourer or an agriculturist like the accused having his own blood stains on his clothes cannot be ruled out. The onus to disprove the charge framed against accused did not shift only because of the presence of a few blood stains on his clothes. The disclosure statements and subsequent recoveries are not sufficient to convict the accused persons.

35.Having gone through the whole case file and submissions of ld. counsel for accused persons, I perused the Section 106 of the Evidence Act which itself unambiguous and categorical in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a FIR no.267/2009 State Vs Atul Jain etc 45 person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The question is how to test the veracity FIR no.267/2009 State Vs Atul Jain etc 46 of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search out, the court have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the court within permissible limit to find out the truth.

36.It may be observed here that it is a general handicap attached to all eye witnesses, if they fail to speak with precision their evidence would be assailed as vague and evasive, on the contrary if they speak to all events very well and correctly their evidence becomes vulnerable to be attached as tutored. Both approached are dogmatic FIR no.267/2009 State Vs Atul Jain etc 47 and fraught with lack of pragmatism. The testimony of a witness should be viewed with broad angles. It should not be weighed in golden scales, but with cogent standards. In a particular case an eyewitness may be able to narrate the incident with all details without mistake if the occurrence had made an imprint on the canvas of his mind in the sequence in which it occurred. He may be a person whose capacity for absorption and retention of events is stronger than another person.

37.The citations relied by the ld. counsel to illustrate the arguments on the scope and extent of circumstantial evidence can be summarized in the following principles as reiterated by the Apex Court in 'Padala Veera Reddy Vs State of A. P. and Ors.' that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests :

1. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

2. those circumstances should be of a definite tendency unerringly pointing towards guilt of FIR no.267/2009 State Vs Atul Jain etc 48 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."

37.Time and again Hon'ble Apex Court reiterated the principles and explaining the magnitude of conviction on the basis of circumstantial evidence through catena of judgments reduced into the following three principles i.e. in case titled as 'Chandmal V State of Rajasthan AIR 1976 SC 917':

i) The circumstances from which evidence is drawn must be cogently and firmly established;

ii) Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and

iii) The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that with all human probability the crime was committed by the accused and none else.

38.The sum and substance of illustrations of the above principles is that FIR no.267/2009 State Vs Atul Jain etc 49 as and when any conviction is recorded on the basis of the circumstantial evidence the court must take extra cautions to evaluate each and every aspect of the act of the accused and a chain of facts as well as artifacts which can give only one conclusion i.e. of inevitable finding and no scope of doubt remains in the chain of facts and artifacts.

39.In the present case, there are several overwhelming inconsistencies, blemishes and glaring contradictions in the evidence of the prosecution witnesses which remain unexplained by the prosecution and these blemishes are fatal to the prosecution version as they strike at the root of the case. It is clear from the record that there is no eye witness to the incident and the prosecution case is based on circumstantial evidence and last seen theory.

40.The most material witness in this case happens to be PW2 Rajat Pal Singh, PW9 Vijender Singh Rana, PW13 Bharat Sharma, PW14 Ravi Rana, PW15 Smt. Indu Jain, PW16 Sh. Rajesh Kumar, PW18 FIR no.267/2009 State Vs Atul Jain etc 50 Mahesh Kumar Jain, PW21 Sarita Jain.

41.PW2 is the most material public witnesses in this case being the witness wherefrom the incident with regard to the case starts to take place. In the deposition of PW2 it has come on record that he had seen accused Atul Jain with accused Rajesh and Kuldeep on 19.09.2009 at about 6.15 p.m. while they were sitting near PVR Vikaspuri to consume liquor. This aspect of the testimony clearly form a chain regarding the association of all these three accused persons namely Kuldeep, Rajesh Chauhan and Atul Jain on the date, time and place mentioned above. This witness has been crossexamined by ld. counsel Sh. R S Malik for accused Kuldeep. In the crossexamination some minor type of discrepancies have been seen which are attributable due to the long duration of time and memory of a human being.

42.So long as the crossexamination for and on behalf of accused Atul Jain and Rajesh Chauhan no discrepancy in material particulars has FIR no.267/2009 State Vs Atul Jain etc 51 come on record. The witness was partly got hostile by ld. APP on account of the fact for not disclosing the name of all the persons who were present at that time with accused persons.

43.PW9 Vijender Singh Rana is totally hostile witness. His statement u/s 161 Cr.PC was recorded by the I.O. with regard to the fact of providing mobile phone connection bearing no.9650939450 to Kuldeep and Rajesh but he has denied having given this connection to these accused persons as a result of which he was got declared hostile by ld. APP and was got confronted with the statement recorded u/s 161 Cr.PC by the I.O. where it is so recorded.

44.PW13 Bharat Sharma is also a totally hostile witness. His statement u/s 161 Cr.PC was recorded by the I.O. with regard to the fact that police brought accused persons on 23.09.09 regarding their visit to the shop by accused persons Kuldeep, Rajesh with another associate Ravi on 20.09.2009 at 6 p.m. but he has denied to have given statement in this regard to the police as a result of which he FIR no.267/2009 State Vs Atul Jain etc 52 was crossexamined by ld. APP and contradicted with regard to his statement recorded u/s 161 Cr. PC where it is so recorded.

45.PW15 Smt. Indu Jain is the most material witness in this case being mother of deceased and accused Atul Jail. She has deposed against her own son regarding the character of her son Atul Jain and his conduct on dated 19.09.09 and revealed that there had been dispute in her family regarding the sharing of immovable property i.e. shop and clearly deposed that she does not want her son accused Atul Jain to be alive and want him to be hanged. Having deposed so she started crying and said that her whole family has been destroyed by the act of accused Atul Jain. This witness was crossexamined. I find some minor type of discrepancies in her statement. She has denied the suggestion that she whatever stated in her statement in the examination in chief has never occurred.

46.PW16 Rajesh Kumar is also a material witness who happens to be the person who made a call at 100 number on seeing the dead body FIR no.267/2009 State Vs Atul Jain etc 53 of the deceased on 20.09.2009 from his mobile no.9810403359. This witness has not been crossexamined by any of the counsel of accused persons.

47.PW18 Mahesh Kumar Jain is also the most material witness in this case being father of deceased and accused Atul Jain. He has also deposed against the accused deposing the similar facts as deposed by PW15 but he was got declared hostile on some points.

48.PW21 Sarita Jain is formal witness being the wife of deceased Sandeep Jain. She got released motor cycle no.DL4S AX - 8620 on superdari vide application and superdarinama vide Ex.PW21/A and B respectively. This motorcycle was of deceased Sandeep Jain.

49.These public witnesses exfacie appears to be the most material witnesses with regard to the alleged incident of this case. However, neither the last seen evidence is on record against any of the accused nor any direct evidence regarding committal of offence by FIR no.267/2009 State Vs Atul Jain etc 54 any of the accused persons has come on record. So, the whole case rests upon principles of the circumstantial evidence as determined by Apex Court. In this case on the aspect of circumstantial evidence PW2 Rajat Pal Singh happens to be the most material witness who has affirmed in his deposition the factum of association of accused Atul Jain, Rajesh and Kuldeep on 19.09.2009 at about 6.15 p.m. while they were sitting near PVR Vikaspuri to consume liquor. The factum of the dead body of deceased Sandeep Jain as reported by PW16 Rajesh Kumar at 100 number on seeing the dead body of the deceased on 20.09.2009 from his mobile no.9810403359 vide DD no.8A which is Ex.PW1/A immediately before the alleged incident proves on record beyond reasonable doubt the element of chain of their link with their association and dead body of deceased.

50. In light of the establishment of the association of all the three accused persons now the court may proceed to examine the testimonies of the witnesses regarding the preceding and succeeding conduct of each and every accused. In this regard as it FIR no.267/2009 State Vs Atul Jain etc 55 reveals in the deposition of PW15 Smt. Indu Jain that on 19.09.09 accused Atul Jain took scooter from his father at about 5/ 6 a.m. that he would come into three hours but he returned back at about 4 p.m. and when they asked him as to where he has gone he did not give satisfactory reply and immediately thereafter he left the house and returned back at about 7.30 p.m. and he was found having drunk liquor and again left the house and returned back at about 9.30 p.m. and was found frightened and while he was sitting with them on dinner he received 3 /4 calls but he did not answer and abused them and on that night he was found roaming. Let the portion of deposition of PW15 Smt. Indu Jain be reproduced for brevity of the facts. The same is as follows: "On 19 September 2009 Atul Jain took Scooter from his father th at about 56AM and told that he would come into three hours. He returned back at about 4PM and when we asked as to where he has gone he did not give any satisfactory reply. After coming back at 4PM Atul Jain again left the house and returned back at about 7.30PM. He had drank liquor. He again left the house and returned back again at about 9.30PM. Atul Jain at that time was perspiring and was frightened. I asked him the reason and he told me that he was not feeling well. While he was having his dinner there were 34 phone calls but he did not answer the phones and abused us. He went to the terrace of the house and he did not sleep the whole night and was just roaming around the house. My deceased son Sandeep Jain had not returned back to the house. My husband had got up at about 4AM the FIR no.267/2009 State Vs Atul Jain etc 56 next day and Atul Jain asked him as to what was the reason and why he had got up. I told Atul Jain that Sandeep Jain had not returned back. Atul Jain told me that Sandeep Jain was involved with girls and someone might have stabbed him."

51.Careful perusal of her deposition reveals that the conduct of accused Atul Jain who happens to be the brother of deceased appears to be suspicious and causing the mark of belief in the mind that after having consumed liquor on that day he committed something disadvantageous to his family and himself.

52.In light of the depositions of aforesaid witnesses now the court may proceed to examine the status of recovered article from the accused persons. As per the deposition of PW27 I.O. Anand Lakhra the disclosure statement of accused persons were recorded and these were duly witnessed by witnesses SI Dharampal and ASI Rajender. All these witnesses were happens to be the police officials. The weapon of offence i.e. knife which has been got exhibited as Ex.P5, it was recovered from accused Rajesh vide seizure memo Ex.PW22/K and sketch vide Ex.PW22/J consequent upon his disclosure statement. The another weapon of offence i.e. iron FIR no.267/2009 State Vs Atul Jain etc 57 rod which has been got exhibited as Ex.P6 and this was got recovered from accused Kuldeep vide seizure memo Ex.PW22/M and sketch vide Ex.PW22/L consequent upon his disclosure statement.

53.Ld. counsel for the accused persons argued and submitted on this point that recovery of alleged knife and iron rod was made from the place which was accessible to all the persons meaning thereby that it was a common place and it cannot be assumed that the place of recovery of knife was exclusive within the knowledge of accused persons. Ld. counsel again submitted that knife recovered neither contained any blood stains nor it indicates any definite conclusion that it was used for the committal of murder of deceased.

54.In support of his arguments he has relied upon the citations i.e. Satish Kumar Vs State 1995 (3) CC Cases 252 (HC) in this case wherein it has been held that: "Nonjoining of independent witness during disclosure FIR no.267/2009 State Vs Atul Jain etc 58 statement - Where no efforts were made by the police to join any independent witness before recording disclosure statement of the accused..."

Pawan Kumar Vs Delhi Admn. 1988 (2) RCR 421 in this case it was held that:

"It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like .... p.m., where there is lot of rush of commuters for boarding the buses to their respective destinations."

55.The arguments of ld. counsel are not sustainable in complete precisely for the reasons that it has come on record in the deposition of PW3 Dr. Sushil Kumar Chaurasia, Sr. Resident who has conducted the postmortem on the dead body of deceased Sandeep Jain on 20.09.2009 vide PM report Ex.PW3/A that cause of death was being shock, subsequent to the blunt injuries to the head and penetrating injuries to the neck. Injuries to the head and neck are sufficient to cause death in ordinary course of nature individually as well as in combination. All injuries are antemortem in nature and same in duration. He has also given subsequent opinion on 14.09.09 on weapon of offence. He opined that injuries no.1, 2 and 3 of neck are possible by the weapon of offence (knife) and external injuries no.5,7,8,9 and 10 are possible by iron rod. This deposition FIR no.267/2009 State Vs Atul Jain etc 59 goes to establish the most proximate nexus with the alleged recovery of knife and iron rod used with regard to the death of deceased Sandeep Jain.

56.So long as the blood stained clothes recovered from the accused persons are concerned, it has come on record that recovery of these blood stained clothes was questioned in the statement recorded u/s 313 Cr.PC but accused persons have not given any satisfactory answer to this question. They have not given any reason that as to why these clothes were got recovered from their possession. Therefore, recovery of these blood stained clothes also have reasonable nexus with the blood of deceased but with caution. But simultaneously a note of caution is also being taken in this regard since no report from FSL has been got filed regarding the blood matching from the recovered articles with the deceased blood and it has also not been brought on record which blood substance was of the deceased. Therefore, it goes to indicate that the accused failed to explain whose blood on the recovered clothes was found. FIR no.267/2009 State Vs Atul Jain etc 60

57.The most material testimony in this case happens to be with regard to the mobile no. 9650939450. PW27 Insp. Anand Lakra got all the details print outs of deceased mobile phone and it was revealed that calls were received from one mobile no. 9650939450 since 17.09.2009 and from the call details of mobile no. 9650939450, it was revealed that calls were made from this mobile only on the mobile phone of deceased. One call was made on mobile no. 9650939450 from Krishna communication, Khera Kalan, Delhi. Police officials went there who stated that SIM card was purchased from his shop by one person namely Kuldeep, a resident of Khera Kalan. A question in this regard was put to the accused persons u/s 313 Cr. PC to which they did not give any satisfactory reply of this question. But simultaneously a note of caution is also being taken in this regard since witness from concerned department has not been made witness by the I.O.

58.Careful perusal of the citations relied upon by the ld. counsel and FIR no.267/2009 State Vs Atul Jain etc 61 deposition of public as well as material witnesses and the surrounding circumstances under which the alleged offence causing murder of deceased Sandeep Jain revealed that accused persons namely Kuldeep, Rajesh and Atul Jain were found in association immediately prior to the incident vide deposition of PW2 Rajat Pal Singh. So long as the weapon of offence used with regard to the murder of deceased Sandeep Jain and their consequent recovery upon the disclosure statement of accused persons exfacie indicates the proximate nexus of all the three accused persons which is duly corroborated from the clothes recovered from accused persons namely Pankaj Jain, Rajesh Chauhan and Kuldeep Rana along with the blood patches though the blood match could not be got done by the I.O. with the identity of blood of deceased. Subsequently, the recovery of mobile from accused Pankaj (Juvenile) and having made call from this cell number to the cell number of deceased vide deposition of PW27 clearly weave a chain of fact connecting the accused persons with the death of the deceased Sandeep Jain. As discussed in above paras Hon'ble Supreme Court of India in FIR no.267/2009 State Vs Atul Jain etc 62 judgment 'Chandmal V State of Rajasthan AIR 1976 SC 917' laid down three tests / principles before a conviction is recorded on the basis of circumstantial evidence:

i) The circumstances from which evidence is drawn must be cogently and firmly established;

ii) Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and

iii) The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that with all probability the crime was committed by the accused and none else.

59.The circumstances are to be weighed for the establishment and proof of the case for the purpose of conviction. In the present case test no.1 is proved from the evidence on record vide deposition of PW2 who saw the accused persons and subsequently the recovery of weapon of offence vide deposition of PW27 and thereafter recovery of blood stained clothes from accused persons namely Kuldeep, Rajesh and Pankaj (Juvenile).

60.Test number 2 is satisfied from the deposition of PW15 Smt. Indu Jain who has deposed against her son accused Atul Jain explaining FIR no.267/2009 State Vs Atul Jain etc 63 her preceding and subsequent conduct regarding the day of alleged incident as discussed in above paras. PW18 Mahesh Jain also deposed in similar terms against his son accused Atul Jain though he was declared hostile on some other points but he has also brought on record the preceding and succeeding conduct of his son accused Atul with regard to the alleged incident of murder of his other son Sandeep Jain coupled with the evidence as discussed in the preceding paras.

61. So long as test no. 3 is concerned it emerged from the discussion of the above depositions that the association of accused persons immediately before the day of incident impact their conduct towards the probability of the offence for committing murder under section 302 / 120 B IPC, having made a criminal conspiracy immediately prior to the alleged incident of deceased Sandeep Jain and their arrest by I.O. points out towards entering into an agreement to commit an illegal act sharing the element of framework of thoughts and arrangements of ideas for committing illegal acts connected with the death of deceased FIR no.267/2009 State Vs Atul Jain etc 64 Sandeep Jain by deceased brother accused Atul Jain with the help and aid of coaccused Kuldeep Rana and Rajesh Chauhan for property advantages. Consequent upon the disclosure statement the recovery of weapons of offence and blood stained clothes as discussed above lend the assurance that the accused persons had immediate and confirmed nexus with regard to the alleged murder of deceased Sandeep Jain if not for murder but towards destroy of evidence for the offences u/s 120B IPC read with section 201 IPC. This state of affairs falls within the twilight zone of murder and common intention sharing to destroy the evidence for the offence. In all probabilities to destroy the evidence by accused persons with prior design of mind is inferred beyond reasonable doubt by taking cumulative note of the facts bought on record.

62.Having argued the case at length ld. counsel Sh. R S Malik for accused Kuldeep Rana have relied upon the citations on the disclosure statements with regard to recovery of offence at the instance of accused in the cases discussed in para 32 at serial no.3 to 7 . The FIR no.267/2009 State Vs Atul Jain etc 65 import of the aforesaid citations is that the recovery of article in absence of independent witnesses and without having corroboration in material particulars like blood of deceased on the weapon of offence, place of recovery and identification of the blood matching of the deceased with recovered things left a mark of disbelief in the chain to establish the circumstantial evidence. The most vital link in this case found is that the recovery of Cell Phone number has been effected from one of the accused juvenile Pankaj who is being tried in the court of Juvenile Justice Board for the similar offence. Any how if we believe the missing mark of this link in the chain weaving the clean and smooth circumstances leading to afford only the one hypothesis that in all probabilities accused persons have committed the offence of murder, it may impact the rule of prudence and miscarriage of justice. However, it can firmly and reasonably be concluded that the accused persons were in association of each other prior to immediately committing of the offence and consequent upon their disclosure statement the recovery of articles namely iron rod and knife were effected from accused persons Kuldeep and Rajesh Chauhan hold the accused persons guilty FIR no.267/2009 State Vs Atul Jain etc 66 for the offence of entering into criminal conspiracy within the meaning of section 120B IPC to destroy the evidence u/s 201 IPC as the recovery of weapon of offences and mobile phone from accused persons directly links with the deceased as motive for the sake of property from his parents by accused Atul Jain was the apple of discord leading to the circumstances at least for the committal of offence u/s 120B IPC r/w 201 IPC. This chain of facts clearly and cogently gives only one inference that accused persons if not committed the murder of deceased they have definitely committed the offence of destroy of the evidence after a criminal conspiracy.

63.In judgment 'Begu V. K.E.;

1925 ILR 6 Lah 226 (PC);

Mohammad V. State of Kerala, (1988) 2 Ker LJ 470;

Kalawati, 1953 SCR 546, 557 ' it has been observed that: "The person charged with the main substantive offence can be convicted under Section 201 without specific charge"

In another case 'Basanti V. State of H.P., 1987 Cr LJ 1869 (SC) : AIR 1987 SC 1572. Such disposal must be proved as a fact. State of Rajasthan V. Kamla, 1991 Cr LJ 602 (SC) : AIR 1991 SC 967' it has also been observed that: "Where the main offence is proved to have been committed by X, FIR no.267/2009 State Vs Atul Jain etc 67 and Y (also charged as coaccused for main offence of murder) is acquitted for want of evidence, it can still be convicted under Section 201 for assisting in disposal of dead body if guilty knowledge is proved."

64.Therefore, in light of the above discussed facts and circumstances of the case I acquit the accused persons for the offence punishable u/s 302 IPC by giving them benefit of doubt and I convict accused persons for the offences punishable u/s 120B and 201 IPC for the reasons as discussed above.

Accordingly, accused persons namely 1.Atul Jain @ Montu, 2.Rajesh Chauhan @ Ashu and 3.Kuldeep Rana are acquitted for the offence punishable u/s 302 IPC; and accused persons namely 1.Atul Jain @ Montu, 2.Rajesh Chauhan @ Ashu and 3.Kuldeep Rana are convicted for the offences punishable u/s 120 B/ 201 IPC.

COURT OBSERVATION Before parting with the judgment I would like to record my comment on the preparatory framework conducted by the I.O. It was found inadequate and lacked in many respects. So long as adoptive framework is concerned, in this regard it was also observed that neither the witnesses from FSL and service provider of cell phone 9650939450 which speak itself on the conduct of the IO. So long as the implementative and communicative framework is concerned that too was also found insufficient and inadequate by the I.O. during the course of investigation. The investigating authority may look into the matter on these aspects to prevent the further recurrence of such inadequacies. ANNOUNCED IN THE OPEN COURT ON THIS 08.07.2011 (RAJ KAPOOR) ASJ02/West Distt.

THC : Delhi FIR no.267/2009 State Vs Atul Jain etc 68

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Delhi District Court

State vs Atul Jain Etc on 8 July, 2011