Delhi District Court
State vs 1. Janardhan Prasad @ Chotu on 15 December, 2010
1
IN THE COURT OF S.K. SARVARIA DISTRICT JUDGEVIII &
INCHARGE ADDITIONAL SESSIONS JUDGE:
ROHINI COURTS DELHI
S.C. No. 124/2010/2003
State Vs 1. Janardhan Prasad @ Chotu
S/o Lotan Prasad
R/o Village Karma Bujurg
P.S Guleria, District Gorakhpur
Uttar Pradesh.
2. Brij Raj Tripathi @ Raju
S/o Somnath Tripathi
R/o Village Birhi Khurd,
P.S Uswa Bazar District
Uttar Pradesh.
FIR No. 431/2003
Police Station Paschim Vihar
Under Sections 302/397/398/411/34 IPC.
Date of Institution: 17.11.2003
Dates when arguments 07/12/2010 and 08/12/2010
were heard
Date of Judgment: 13/12/2010
State Vs. Janardhan etc
2
JUDGMENT:
1. The SHO of P.S: Paschim Vihar has challaned the accused persons to face trial for the offences under Sections 302/397/398/411/34 IPC. The Ld Metropolitan Magistrate after supplying the copies of documents of the prosecution case to the accused by complying with Section 207 Cr.P.C has committed the case to the court of Sessions as provided under Section 209 Cr.P.C.
BRIEF FACTS OF THE CASE
2. The prosecution case in brief is that on 8.8.2003, at 1.30 p.m an information was received from the husband of victim in P.S: Paschim Vihar that his wife has been murdered and he was on the way. On this information, ASI Chattar Singh and Constable Ramesh went to the spot at Flat no. 17C, 2nd floor and found the dead body of Mohini Srivastava at the bed in a pool of blood. There was an injury on the breast of the deceased with a sharp edged weapon and considerable blood was also lying there. The blood stains were also present on the walls of the room and there were signs of strangulation on the neck of the deceased. The complainant Asit Srivastava gave statement to ASI Chattar Singh that his uncle N.N. Srivastava along with his wife Mohini Srivastava used to State Vs. Janardhan etc 3 reside in the flat adjacent to his flat along with their servant Janardhan. His uncle used to go to his job at about 8.30 a.m. After his uncle had left for job, his wife was alone in the flat along with the servant. At about 11.30 a.m, he (complainant) was told by his Bhabhi Preeti Srivastava that despite repeated pressing of the bell, neither the aunt nor the servant is opening the door. In the meantime, the servant of his aunt called him from balcony stating that the door of the balcony was closed and he was in the balcony. Then, the complainant came to the main gate of the flat of his uncle and saw the wooden door and door made up of jali opened. He went inside and in the last room of the flat, he saw his aunt Mohini Srivastava lying in a pool of blood. There were also blood which appears to be due to dragging of the dead body. Thereafter, he raised hue and cry, then his father and other persons came there and his uncle was informed telephonically in his office about the murder of his aunt.
The rukka was sent to the police station after making endorsement by ASI Chattar Singh through Constable Ramesh for registration of the case. The crime team and photographers were called at the spot. The blood sample, blood stained floor and earth control samples were taken. The broken bangles and blood stained foot mat were seized separately. The dead body was sent for postmortem to the hospital. The postmortem report was obtained in which the cause of death was shown as strangulation and stab injury. The cash and jewellery State Vs. Janardhan etc 4 was found stolen in the flat. On suspicion, the servant Janardhan @ Chotu was kept under sustained interrogation for several days and on 20.08.2003, accused Janardhan made disclosure statement that he and coaccused Brij Raj Tripathi @ Raju have committed the robbery and murder in question. The coaccused Raju was also arrested. The statement of witnesses were recorded under Section 161 Cr.P.C. The site plan was prepared. Accused Brij Raj Tripathi @ Raju after his arrest gave disclosure statement and got recovered the jewellery and cash. The weapon of offence (knife) was got recovered by accused Janardhan. On completion of the investigation, the accused persons were challaned under Section 302/397/411/34 IPC as referred before. CHARGE AND PLEA OF ACCUSED:
3. The prima facie case for the offences under Sections 392/397/302/34 IPC was found to be made out against both the accused persons, so they were charged accordingly on 05.05.2004 to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. In support of its case the prosecution has examined 20 witnesses in all. To have access to the prosecution evidence, it would be appropriate to give a short resume of the statement of prosecution State Vs. Janardhan etc 5 witnesses recorded in the court.
5. PW1 is Head Constable Raja Ram. He stated that on 08.08.2003, he was working as Duty Officer at P.S Pashim Vihar. At about 3.40 p.m, he received a rukka of ASI Chattar Singh through Constable Ramesh, on the basis of which he recorded the formal FIR No. 431/2003 and handed over the copy of FIR and original rukka to Ct. Ramesh for onward submission of the same to the IO of the case. He proved the carbon copy of FIR as Ex PW 1/A.
6. PW2 is Head Constable Phool Kumar. He stated that on 08.08.2003, he was working as MHC(M) at P.S Paschim Vihar and SHO Jeevan Singh had deposited with him six pullandas sealed with the seal of JSG bearing mark 1 to 6. He made entry to this effect at Sl. No. 3421 in the register No. 19 and proved the same as Ex PW 2/A. This witness further deposed that on 09.08.2003, SHO Jeevan Singh had deposited with him three pullands duly sealed with the seal of SGMS hospital, mark 1 to 3 along with its sample seal mark 4. He again made entry to this effect at Sl. No. 3422 in the register No. 19 and proved the same as Ex PW 2/B. On 20.08.2003, SHO Jeevan Singh had deposited with him the personal search articles of accused Janardhan Prasad i.e Rs 40/. He State Vs. Janardhan etc 6 made entry to this effect at Sl. No. 3443 in the register No. 19 and proved the same as Ex PW 2/C. On 21.08.2003, SHO Jeevan Singh had deposited with him briefcase and three sealed parcels pertaining to the present case duly sealed with the seal of JSG. He made entry to this effect at Sl. No. 3444 in the register No. 19 and proved the same as Ex PW 2/D. On 15.10.2003, Additional SHO Ranbir Prasad had deposited with him a sealed parcel duly sealed with the seal of CS allegedly containing jewellery and cash items pertaining to the present case. He made entry to this effect at Sl. No. 3561 in the register No. 19 and proved the same as Ex PW 2/E. On 08.09.2003, on the instructions of IO/SHO, he handed over the parcel containing chhuri and rope duly sealed with the seal of JSG to ASI Chattar Singh with the seal intact, which was received back on the same day. He made entry to this effect at Sl. No. 3444.
On 15.09.2003, 13 parcels, 2 sample seals and FSL form were handed over to Constable Suraj Singh pertaining to the present case vide RC 168/21/03 for depositing the same at the office of FSL Malviya Nagar. On the same day, Constable Sunder Singh returned back with the copy of RC as receipt from the FSL and entry to this effect was made by him at Sl. No. 3444.
This witness after recollecting stated that on 27.08.2003, State Vs. Janardhan etc 7 SHO Inspector J.S. Gill had also deposited with him sealed parcel duly sealed with the seal of JSG pertaining to the present case which was allegedly containing cash and jewellery items and entry to this effect was made by him in register No. 19 at Sl. No. 3457. This witness further stated that the entries at Sl. No. 3421, 3422, 3443, 3444, 3457 and 3561, entry regarding sending the parcels of chhuri and rope, entry of sending the exhibits to FSL office and the R.C No. 168/21/2003 in the road certificate register are in his handwriting, correct and under his signatures. The photocopy of R.C and copy of entry No. 3457 are proved as Ex PW 2/F and Ex PW 2/G respectively.
7. PW3 is Asit Srivastav. He deposed that accused Chotu @ Janardhan was a domestic servant in the house of his uncle Sh. N.N. Srivastava and accused Brij Lal Tripathi @ Raju was domestic servant in his house from May 2002 to November 2002. He further stated that on 08.08.2003, at about 11.30 a.m, he was present in his room in house No. 18C, Green Apartment, Paschim Vihar, Delhi. At that time, his sisterin law Smt. Preeti Srivastava came to him and informed him that she had been ringing the door bell of the flat of his uncle Sh N.N. Srivastava residing in the adjoining house i.e 17C, Green Apartment, Paschim Vihar but nobody is responding. In the meantime, they heard the voice of Chotu @ Janardhan while saying "BhabhiBhaiya, BhabhiBhaiya, I am State Vs. Janardhan etc 8 in the balcony and the gate of the balcony is bolted from inside." Thereafter, they both went at the gate of his uncle, where the main door of the flat was opened. They went inside and on reaching the last room, found her aunt Smt. Mohini Srivastava lying in a pool of blood. They both became perplexed. The entire articles were lying scattered and the almirah was open. They raised alarm. His father and 67 public persons from the locality came there. His father asked him about Chotu, upon which, he went towards the balcony and opened the gate of balcony where accused Janardhan @ Chotu was standing. It is further stated by this witness that the jali above the bolt (chhitakni) had cut marks and one can easily bolt the gate from both sides through that cut. He caught accused Chotu and handed over him to his father, who inquired him but accused Chotu gave his statement after changing it again and again. In the meantime, police came there and took accused Chotu in their custody.
This witness further deposed that he made statement before the police which is proved as Ex PW 3/A. The accused was handed over to the police and was taken into custody by the police. The police had taken the photographs of the dead body and scene of crime and had also picked up blood from the place of occurrence along with earth control. The same were sealed in two separate parcels with the seal of ASG. Some glass bangles of his deceased aunt were also lying there which State Vs. Janardhan etc 9 were also picked up by the police and then sealed it into a parcel with the same seal of ASG. The police had also taken two bangles of glass from the hand of his aunt Mohini Srivastava. The footrest having blood spot was also taken by the police and sealed into a parcel with the seal of ASG. All the sealed parcels were taken into possession vide memo Ex PW 3/B. Thereafter the police had removed the dead body of his deceased aunt Mohini Srivastava to the mortuary of Sanjay Gandhi Hospital. On the second day, after postmortem, the dead body of his aunt was handed over to him and his father vide receipt which is proved as Ex PW 3/C. He had also identified the dead body vide his statement Ex PW 3/D. It is further deposed by this witness that on 20.08.2003, accused Chotu was brought by the police in the house of his uncle Sh N.N. Srivastava. The accused was living in the servant room which was in the balcony of the house. The accused took out a knife, a rope and his clothes which he was wearing on the day of occurrence and the clothes had blood spots. The said articles were taken out by the accused from a brief case lying in his room. The knife was of steel and its handle was of fiber which were having blood spots. The police had sealed the knife in a parcel with the seal of ASG and had taken the entire articles into possession. This witness further stated that the police had produced the aforesaid articles on 21.08.2003 and not on 20.08.2003. The witness State Vs. Janardhan etc 10 has also identified the broken glass bangles as Ex P1, two bangles worn by his aunt as Ex P2 (collectively), footrest as Ex P3, knife (dragger) as Ex P4, rope as Ex P5, shirt of accused Chotu which was produced before the police by him as Ex P6.
PW3 further deposed that his flat and the flat of his uncle Sh N.N. Srivastava are situated on the IInd floor in the same row. The balcony of his flat and the flat of his uncle are open towards open space and at a distance of 8 or 10 feet. There are other flats and their balconies are facing towards the balcony of our flats. The flats are also adjoining to the main road and number of persons remained standing on the bus stop on the road. There was a dental clinic on the Ist floor and on the ground floor there is a Sareen Diagnostic Centre. Across the road, there is Shivaji temple and in the open space there is a main gate of flats where Chowkidar remained sitting. The accused Janardhan @ Chotu had made no alarm at the time of occurrence. On 12.10.2003, he and his Bhabhi Preeti Srivastava went to the P.S Paschim Vihar where they identified accused Brijlal Tripathi @ Raju.
8. PW4 is Smt. Preeti Shrivastav. She deposed that accused Janardan @ Chotu was domestic servant in the house of his Chachiya Sasur (i.e the uncle of her husband), in flat No. 17C, Green Apartments, Paschim Vihar, Delhi adjoining to her flat. The accused Brij Raj Tripathi State Vs. Janardhan etc 11 @ Raju was servant in her house from May 2002 to November 2002. This witness further deposed that on 08.08.2003, her Chachiya Sasur Sh N.N. Sriavastav went to his office at about 8.30 a.m as usual. At about 10.00 a.m, she went in the flat of her Chachiya Sasur and rang the door bell, upon which his servant Chotu @ Janardhan had opened the main door. She went inside. Her Chachiya Saas Smt. Mohini Srivastava was lying on her bed. Except accused Chotu and her Chachiya Saas Mohini Srivastava, none else was present in the flat. Due to the marriage of her brotherinlaw Asit Srivastava PW3, she went to the flat of her Chachiya Sasur to ask Chachiya Saas Mohini Srivastava to get ready for market upto 11 a.m. Thereafter, she returned to her flat. She got readied herself and her brother in law at about 11 a.m and her Chachiya Saas did not come to her flat.
She rang the door bell of the flat repeatedly for some time but nobody had opened the door. She thought her Chachiya Saas might be taking bath, so she waited up to 5 minutes while standing on the door. Thereafter, she again rang the door bell 5/6 times but neither servant Chotu @ Janardhan nor her Chachiya Saas opened the door from inside. Her brother in law was getting ready in his room and she informed him that nobody is opening the door despite repeated ringing of bell. At that time, she heard the voice of Janardhan @ Chotu from the side balcony of the flat of her Chachiya Saas. He has been bolted by someone in the State Vs. Janardhan etc 12 balcony and the door of the flat was bolted from inside and he was in the balcony. After hearing this, she and her brother in law Asit Srivastava went to the main door of the flat of her Chachiya Saas and both the main doors of the flat were open.
They went inside the flat and saw blood from the lobby of the flat to the bed room of her Chachiya Saas. They proceeded forward and saw that her Chachiya Saas Mohini Srivastav was lying in a pool of blood in her bed room. She was smearing with blood. There was injury mark on her neck. All the three almirahs in the room were found open and articles of the almirah were lying scattered hither and thither. Blood spots were also present in the bathroom and some blood spots were also present in the sink in the kitchen of the flat of her Chachiya Saas. She and her brother in law Asit Srivastava started weeping and crying. On hearing their cry, her father in law, Dr. R.N. Srivastava, who was present in her flat and many neighbourers of the locality came there.
Her brother in law Asit Srivastava went in the room in the which is adjoining to balcony. The jali of the door was cut from upper portion of the bolt and the balcony was bolted from inside in the room. Asit Srivastava opened the door of the balcony and apprehended accused Janardhan @ Chotu and handed over him to her father in law, who started making inquiry from him. The servant Chotu @ Janardhan started changing his version. Her brother in law started making State Vs. Janardhan etc 13 telephone calls to his Chachiya Sasur. The witness identified the shirt Ex P6 of the accused Chotu @ Janardhan which he was wearing. She stated that accused Chotu @ Janardhan did not raise any alarm to anyone. Only, her Chachiya Saas deceased Mohini and accused Janardhan @ Chotu used to remain present in the flat in question and whenever any outsider used to visit the house of her Chachiya Sasur either her Chachiya Saas Mohini or her servant Janardhan @ Chotu used to call her father in law for attending the outsider or to any unknown person. The staircase of her flat and flat of her Chachiya Sasur opens in two different directions. As and when any unknown person used to ring door bell of my Chachiya Saas, she used to inform them on telephone that any unknown person is standing and ringing door bell of her house and then they used to attend the same unknown person. But on that day, nothing like that occurred.
9. PW5 is Sh. Rajender Nath Srivastava, the elder brother of husband of the deceased. He stated that on 08.08.2003, the wife of his younger brother Sh N.N. Srivastava was murdered in his house no. 17C, Green Apartments, Paschim Vihar, New Delhi. On 09.08.2003, he along with other relatives went to SGM hospital and identified the dead body of Mohini Srivastava after her postmortem examination. Police recorded his statement Ex PW 5/A. After postmortem the dead body was handed over to him and his son Asit Srivastava vide memo Ex PW 3/C. State Vs. Janardhan etc 14 The witness stated that on 21.08.2003, he was present in the house of his younger brother Sh N.N. Srivastava. Accused Janardhan came along with police officials and pointed out towards store room situated at balcony of flat No. 17C, Green Apartments and got recovered one brief case of brown colour of make VIP and produced the same before the police officials in his presence. He opened the brief case and took out one shirt of brown colour from inside it bearing embroidery of hand on the pocket of the shirt. There were blood stains also on the shirt. One blood stained knife was also wrapped in that shirt. He also took out a half pant of Khakhi colour bearing lines of green and black colour and the same was also blood stained. He also took out one nylon rope of white colour and some hair were also attached with the rope. The length of the rope was measured before him and it was 3 feet and 8 ½ inches long. IO prepared the sketch of knife Ex PW 5/B. The knife was measured. The total length of knife was 23.3 cm and blade was 12.8 c.m and the handle was of 10.5 cm. The width of the knife was 1 ½ c.m. The handle was made of fiber of black colour having grip on it and was also bearing the words "Crystal Stainless Steel". The blade was made up of steel and was sharp edged. The blade and handle were attached with the help of two riptis. The IO prepared separate pullandas of the case property and affixed the seal of JSG. The seal after used was handed over to ASI Chhatar Singh. The case property was taken into possession State Vs. Janardhan etc 15 vide memo Ex PW 3/D. The witness further stated that on 27.08.2003 he was again present in the flat of his brother A3/17C, Green Apartments. At about 5.45 p.m accused Janardhan pointed out to the police and came to their flat and went inside the kitchen. He pointed out towards shelves attached with the roof of kitchen and took out a carry bag of brown colour with blood stains. The bag was having the label "MAXIMA" and also attached with a red rope. He opened the bag and took Rs 12,250/ with the denomination of 24 notes of Rs 500/, two notes of Rs 100/ and one note of Rs 50/. His younger brother Sh N.N. Srivastava was also present and identified the bag and money and said that the carry bag was used by deceased Mohini Srivastav and she used to keep cash in the bag prior to the incident which was used to be kept in almirah. The money was again put in the same carry bag and IO prepared pullanda sealed with the seal of JSG and same was taken into possession vide memo Ex PW 5/C. The witness identified the knife as Ex P4, nylon rope Ex P5, shirt of Janardhan Ex P6, VIP brief case Ex P7, one half pant Ex P8 and the photocopies of currency notes recovered as Ex P9/A to I. He also identified the carry bag bearing label "MAXIMA" as Ex P10.
10. PW6 is Dr. Shweta Srivastav, the daughter of deceased Mohini Srivastav. She stated that on 08.08.2003, she was doing State Vs. Janardhan etc 16 Internship of MBBS in King George Medical College, Lucknow, U.P. She stated that her father telephonically informed that her mother had been murdered and the domestic servant Janardhan had committed the murder. She came to her house and her statement was recorded by police in which she has stated that she could identify the gold ornaments and the purse of her mother. On 05.11.2003, she participated in test identification proceedings (TIP) of the gold ornaments and identified the gold ornaments belonging to her mother. She identified her signatures on the TIP proceedings Mark Ex PW 6/A. She identified the purse as Ex P11, one necklace with white pearls Ex P12, one pair of gold bangles Ex P13/12, two pair of gold jumkhas Ex P14/12, one pair of gold tops with blue and white stone Ex P15, one lady gold ring Ex P16, one gold chain Ex P17, two gold necklaces with gold pendant and other white pearls Ex P18/12 to be the same which her mother used to wear during her life time which were identified by her in TIP.
11. PW7 is SI Manohar Lal, draftsman who has prepared the scaled site plan on the request of investigating officer and has proved the same as Ex PW 7/A.
12. PW8 is Sh N.N. Srivastava, the husband of victim Mohini Srivastava. He stated that he along with his wife and domestic servant State Vs. Janardhan etc 17 Janardhan @ Chotu were living in the flat no. 17, C Pocket A3, Green Apartments, Paschim Vihar, New Delhi, he identified accused Janardhan @ Chotu in the court. He stated that in the morning everyday he used to leave the house at about 8/8.30 a.m for going to his office in SCOPE building, Lodhi Road and used to return back to his house at about 6.30/7.00 p.m. On 08.08.2003, at about 1.00 p.m he received a telephonic call from his nephew Asit Srivastava that his wife had been murdered. He rushed to his house. He informed about the incident to his daughter Dr. Shewta Srivastava, he also telephonically informed the police at telephone no. 100 about information which he received about his wife from his nephew. On reaching the house, he found the police and his relatives and neighbours. He noticed the dead body of his wife in the pool of blood lying on the floor in the last bed room. He checked the almirah and found cash amounting to Rs 1 lakh, jewellery of his wife including diamond necklace, diamond ring, ear tops, golden bangles (4 in number), one golden chain, 6 golden rings, golden matarmala, mangalsutar, golden nath, golden tikka missing. The police recorded his statement.
The witness corroborated with the statement of his brother PW5 regarding the accused Janardhan @ Chotu coming with the police to his flat on 21.08.2003 and getting recovered brief case make VIP containing blood stained shirt, half pant khakhi colour with blood stains, State Vs. Janardhan etc 18 nylon rope and blood stained knife and the proceedings conducted by the police regarding preparing of sketch of knife Ex PW 5/B and recovery of the case property vide seizure memo Ex PW 3/DA. He also corroborated with the statement of his brother PW5 Rajender Nath Srivastav regarding police again coming on his flat on 27.08.2003 along with Janardhan @ Chotu and the recovery of carry bag of khakhi colour with "MAXIMA" written on it containing Rs 12,250/ in cash and its seizure by police vide memo Ex PW 5/C. He identified the carry bags Ex P10 and the photocopies of the currency notes Ex P9/AI, VIP brief case got recovered by accused Janardhan Ex P7, Knife Ex P4, nylon rope Ex P5, shirt Ex P6, half pant Ex P8, purse Ex P11, necklace with white pearls Ex P12, one pair of gold bangles Ex P13/12, two pair of gold jumkas Ex P14/12, one pair of gold tops with blue and white stones Ex P15, lady gold ring Ex P16, one gold chain Ex P17, two gold necklace with gold pendant and other white pearls Ex P18/12.
The witness further stated that with the jewellery items Ex P12 to Ex P18 a sum of Rs 7,220/ in currency notes of denomination of Rs 500/ (14 notes), Rs 100/ denomination (2 notes), one currency note of Rs 20/ have been brought by him in the court. He had taken these currency notes on superdari.
The witness also stated that he knew accused Brij Raj Tripathi @ Raju. He was personal servant of his brother Dr. R.N. State Vs. Janardhan etc 19 Srivastava. His house and house of his brother Dr. R.N. Srivastava are situated adjacent to each other. Both the accused belong to Gorakhpur. Accused Janardhan was employed with him for four years before the occurrence of this case. Similarly, accused Brij Raj Tripathi @ Raju was employed with his brother Dr R.N. Srivastava as servant for about 2 years before the date of incident. Both accused usually used to meet each other.
13. PW9 is Dr. Vijay Jha, Medical Officer, Sanjay Gandhi Memorial Hospital, Nangloi. He conducted postmortem on the dead body of victim Mohini Srivastava on 09.08.2003. He found the following external injuries on her dead body:
1. Ligature pressure mark present all around neck at lower 1/3 width of ligature mark is 0.5 CM, skin over ligature mark is soft and red. On dissection of injury no.1 it was observed that blood and blood clots present underneath of ligature mark.
2. Stab incised wound present over front of (L) side chest 2.5 CM x 1 Cm x chest cavity deep slightly obliquely placed situated, 2 CM (L) to interior middle and 22 CM below left clavicle upper and inner end is sharp and lower end is blunt. On dissection of injury no.2 there are a track proforae skin muscle fifth intercostal space and perforcates perricadial and left ventrical wall.
State Vs. Janardhan etc 20
14. It is further stated by PW9 that on the basis of above said injury, he opined that death is due to combined effect of pressure over neck structures (ligature strangulation) and stab injury to heart. Both the injuries are sufficient to cause death in ordinary course of nature usually and collectively. He also opined that all the injuries are ante mortem in nature and fresh. He further stated that he had prepared a parcel of blood gauze and had sealed it with the seal of hospital and handed over to accompanied police official. He proved her detailed report as Ex PW 9/A. PW9 further deposed that on 08.09.2003, he had received one sealed parcel with seal of JSG P.S Paschim Vihar containing kitchen knife. He had drawn sketch of knife which is proved as Ex PW 9/B. On examining the knife, he opined that injury no.2 mentioned in postmortem report no. 459/03 could have been caused by the knife examined by him. After examining the knife, he sealed the same with the seal of mortuary and handed it over to accompanied police official. Her opinion in this regard is proved as Ex PW 9/C. She further stated that she had also examined the nylon rope and opined that the injury no.1 in postmortem report of 459/03 could have been possible by the nylon rope. She has also identified the knife as Ex P4 and nylon rope as Ex P19.
State Vs. Janardhan etc 21
15. PW10 is Inspector Devender Singh who stated that on 08.08.2003, he was posted as Incharge Crime Team, West District. He inspected the scene of crime but could not find any chance print from the spot. Photographer took photographs. The witness proved his crime team report as Ex PW 10/A.
16. PW11 is Head Constable Jai Veer Singh who was also working with crime team as photographer. He took 11 photographs of the scene of crime from different angles and developed to make them positives. He proved the positives photographs as Ex PW 11/1 to 11 and the negatives as Ex PW 11/1A to 11A.
17. PW12 is Constable Ramesh who on 08.08.2003 on receipt of DD No. 20B went to the spot with ASI Chattar Singh and saw the dead body of Mohini Srivastava in the flat in question. They met Asit Srivastava there. ASI Chattar Singh recorded the statement of Asit Srivastava nephew of the deceased and prepared rukka and handed over it to PW12 Constable Ramesh, who took it to the police station and got registered the case and returned back at the spot with copy of FIR and original rukka and same was delivered to ASI Chattar Singh for further investigation. Senior police officials also reached at the spot. ASI Chatar Singh lifted blood with the help of cotton, piece of cloth containing State Vs. Janardhan etc 22 blood, sample piece of the floor after breaking the floor, some broken bangles lying at the spot, glass bangles taken out from the right hand of the deceased and separate parcels were prepared by the IO and he sealed the parcels with the seal of JSG and seized vide memo Ex PW 3/B. One cloth footrest from under the body of the deceased was also taken, converted into parcel and sealed with the seal of JSG and taken into police possession vide memo Ex PW 3/B. The postmortem on the dead body of deceased was conducted on 09.08.2003 and thereafter dead body was handed over to the relatives vide receipt Ex PW 3/C. The witness identified the broken glass bangles collectively as Ex P1 which were lying near dead body of Mohini Srivastava. He also identified the bangles which were intact and worn by the deceased as Ex P2 and footrest Ex P3.
18. PW13 is Dr. M.K. Nagpal who stated that on 23.10.2003 he was posted as Metropolitan Magistrate, Tis Hazari Courts. He got conducted the TIP of the case property through witness Ms Shweta Srivastava. He proved the TIP proceedings as Ex PW 13/A.
19. PW14 is HC Satbir Singh who stated that on 08.08.2003, he was posted as constable at P.S Paschim Vihar. He took three copies of FIR from duty officer and delivered the same to Area Magistrate Mrs State Vs. Janardhan etc 23 Sukhvinder Kaur at her residence at Gulabi Bagh and also to Joint C.P and DCP West Sh Satish Golcha. He proceeded from P.S at 4.30 pm on 08.08.2003 and came back at 9.30 p.m on 08.08.2003.
20. PW15 is Constable Sunder Singh who on 15.09.2003 collected exhibits of the case from MHC(M) at the directions of IO and deposited the same at FSL Malviya Nagar vide RC no. 168/21 untampered, the receipt of the same was handed over to MHC(M).
21. PW16 is Constable Ami Lal who stated that on 10.10.2003, he was posted at P.S Paschim Vihar. On that day, he along with ASI Chattar Singh, HC Harender went to Gorakhpur for execution of process U/s 82 Cr.P.C against accused Brij Raj Tripathi @ Raju. They reached Gorakhpur at P.S Gorakh Nath and took the local police for execution of the process. Accused Brij Raj Tripathi was arrested vide memo Ex PW 16/A and his personal search was conducted vide memo Ex PW 16/B. His disclosure statement Ex PW 16/C was recorded. Accused was then produced before the court and his remand was obtained. He was taken to the hospital for medical examination and thereafter they returned back to Delhi. Accused pointed out place of occurrence where he committed murder vide memo Ex PW 16/D. On 15.10.2003, accused led them to House No. G9192 Ist floor, Shakurpur which belongs to one lady Kaur.
State Vs. Janardhan etc 24 Accused was residing as tenant there. Accused got recovered one cloth potli from a tand by lifting himself. The cloth parcel was opened which contained one brown colour purse having a chain. The purse was opened with the help of chain and it contained Rs 7220/ with the denomination of 14 currency notes of Rs 500/, two currency notes of Rs 100/ and one currency note of Rs 20/. One diamond necklace, one pair of tops, two gold bangles, one gold lady ring, two tops (one broken), one gold chain, one chain of white pearls, two pair of jhumkis. The case property was turned into parcel, sealed with the seal of CS and taken into possession vide meo Ex PW 16/E. The seal after use was handed over to ASI Chattar Singh. Case property was deposited with MHC(M). The witness identified the currency notes Ex P10 and carry bag Ex P11, necklace Ex P12 and the golden jewellery Ex P13/12, two pair of gold jhumkies Ex P14/12, one pair of gold tops with blue and white stones Ex P15, lady gold ring Ex P16, one gold chain Ex P17, two gold necklace with gold pendent and other with white pearl Ex P18/1 and 2.
22. PW17 is ACP Raghubir Parsad. He stated that on 15.10.2003, he took the investigation of this case and interrogated accused Brij Raj Tripathi after taking him out from the lock up. During interrogation, some facts regarding recovery came into notice. Accused led him, Constable Ammi Lal and ASI Chattar Singh to his rented State Vs. Janardhan etc 25 accommodation in Shakurpur to get recover some cash and jewellery of the present case. They reached there at the tenanted room at first floor of G39192 at about 11.15 a.m and accused pointed out one slab (duchhati/tand) constructed near the stair case of the tenanted room saying that some jewellery of the present case has been concealed by him there. The accused took out one cloth parcel (Potli) containing one brown colour ladies purse in which Rs 7,220/ (14 notes of 500 denomination and 2 notes of 100 denomination and one of 20 denomination) were kept. One diamond necklace, one gold necklace, one matarmala made of gold, two pairs of ear tops made of gold, two pairs of jhumki made of gold, one golden chain and one ladies gold ring were also found in that purse. These articles were taken into possession vide seizure memo Ex PW 16/E after converting it into a parcel and sealed with the seal of CS. The seal after use was handed over to Constable Ami Lal. The accused was produced in the court. The case property was deposited with MHC(M) at P.S Paschim Vihar. The witness identified the case property produced in the court.
23. PW18 is Smt. Sukhvinder Kaur. She stated that the parents of accused Brij Raj Tripathi @ Raju were tenant for 6/7 days in her house when Brij Raj Tripathi @ Raju was brought by police. One room near stair case at first floor was occupied by family of accused in those days.
State Vs. Janardhan etc 26 This witness was hostile witness and has stated all family members of accused vacated the room on the same night. He was crossexamined by Ld Additional Public Prosecutor but she did not support the prosecution in the crossexamination.
24. PW19 is SI Kapil Dev Singh who was posted at P.S Gorakhnath District Gorakhpur on 11.10.2003. He joined investigation with Delhi Police officials on the direction of SHO and arrested the accused Brij Raj Tripathi @ Raju near Saket Nagar Colony, Gorakh Nath near Springer school. He corroborated with the statement of PW16 regarding arrest of the accused Brij Raj Tripathi vide memo Ex PW 16/A and conducting of his personal search vide memo Ex PW 16/D and production of accused before concerned court and thereafter police officials from Delhi Police leaving with the accused for Delhi.
25. PW20 is ASI Chattar Singh who stated that on receipt of DD No. 20B Ex PW 20/A he along with Constable Ramesh went to the spot. He corroborated with the statement of PW12 Constable Ramesh regarding recording of statement of PW3 Asit Srivastava Ex PW 3/A and stated that he made endorsement Ex PW 20/B and sent constable Ramesh for registration of FIR and constable Ramesh returned along with rukka and copy of FIR to the spot. He also stated that IO prepared State Vs. Janardhan etc 27 unscaled site plan Ex PW 20/C during investigation which he joined with him. The crime team inspected the scene of crime and prepared report Ex PW 10/A. The photographs Ex PW 11/1 to 11 were taken. IO lifted blood of deceased and other articles vide memo Ex PW 3/B. The IO made request to preserve the dead body by moving an application, copy of which is Ex PW 20/D. The accused Janardhan Prasad @ Chotu was interrogated and he made contradictory versions during interrogation. The witness proved the Inquest Form Ex PW 20/E, the brief facts were recorded vide document Ex PW 20/F, request for postmortem was filled in document Ex PW 20/G. The witness corroborated the statement of PW9 regarding postmortem report Ex PW 9/A and has stated that the doctor conducting postmortem took wearing clothes of deceased, blood and hair sample of deceased which were sealed with the seal of SGMH and were handed over to the IO along with one sample seal after postmortem and the same were seized vide memo Ex PW 20/H. After postmortem dead body was released to legal heirs for cremation against receipt Ex PW 3/C. The witness stated that on 20.08.2003, he again joined investigation with the IO and he proved the disclosure statement of accused Janardhan Prasad Ex PW 20/I and the arrest of the accused vide memo Ex PW 20/J and conducting of his personal search vide memo Ex PW 20/K. On 21.08.2003, the witness again joined investigation with the State Vs. Janardhan etc 28 IO and they went to the spot where accused Janardhan got recovered one VIP brief case and churri (knife) with blood stains and bushirt of accused Janardhan and one nylon rope upon which long hairs of deceased were attached. He corroborated with the statement of PW3 regarding preparation of seizure memo Ex PW 3/DA by the IO. He also corroborated with the statement of PW5 regarding recovery of knife at the instance of accused Janardhan and preparing of its sketch. The witness also stated that IO had seized brief case vide memo Ex PW 20/L. He also stated that IO had prepared the sketch of the recovered knife Ex PW 5/B upon which he noticed blood on the edge of blade of knife.
The witness stated that on 23.08.2003, he joined the investigation of the present case with Inspector I.S. Gill, SHO P.S Paschim Vihar. Accused Janardhan @ Chotu was interrogated by him and he gave disclosure statement Ex PW 20/M, in which he disclosed that he can get arrested his associated Brij Raj Tripathi from Gorakhpur. On 24.08.2003 he was directed by the IO to go out of station in search of coaccused Brij Raj Tripathi @ Raju with the case file including two photographs marked XX and marked ZZ of accused Raju for the purpose of arrest. In one of the photographs both accused are present. He corroborated with the statement of PW16 Ct. Ami Lal regarding arrest of accused Brij Raj Tripathi @ Raju. After arresting Raju, they returned to Delhi. Accused Janardhan was further interrogated by IO in his State Vs. Janardhan etc 29 presence and he made disclosure statement Ex PW 20/M in which he stated that he can get recovered the cash which was his looted share from the kitchen of the house of Sh N.N. Srivastava. Accused Janardhan led them to the spot where he got recovered Rs 12,250/ in a bag. He corroborated with the statement of PW5 regarding recovery of these articles vide seizure memo Ex PW 5/C. The witness stated that on 08.09.2003 he was directed by IO to get subsequent opinion from the concerned doctor by handing over one parcel containing knife and other parcel containing rope belonging to present case after taking out from the custody of MHC(M). He handed over the same to the doctor who examined weapon of offence after de sealing the parcel. He prepared sketch of knife Ex PW 9/D and gave subsequent opinion regarding weapon of offence i.e knife Ex PW 9/C. He also gave his subsequent opinion regarding nylon rope Ex PW 20/O. Both the weapons of offence were resealed by the doctor and were handed over to him along with aforesaid subsequent opinion and sketch. The witness stated that on 17.09.2003 he again joined investigation of the case with the IO. He returned back the seal of IO to him which was handed over to him after use on 08.08.2003. The sealed parcel remained in his custody untampered.
This witness further stated that on 10.10.2003 further investigation of this case was assigned to him. At that time, accused Brij State Vs. Janardhan etc 30 Raj Tripathi @ Raju was absconding and proceedings U/s 82/83 Cr.P.C were pending against him. He along with HC Harender and Constable Ami Lal went to Gorakhpur for execution of proceedings U/s 82/83 Cr.P.C. He corroborated with the statement of PW16 Constable Ami Lal regarding arrest of accused Brij Raj Tripathi near Springle School, Saket Nagar, Gorakhpur and proved the arrest memo of accused Brij Raj Tripathi Ex PW 16/A and his personal search memo Ex PW 16/B and the disclosure statement of accused Ex PW 16/C. He also stated that accused was medically examined in Gorakhpur and was produced before Ld CJM, Gorakhpur on the same and the transit remand of 48 hours was granted. He also stated that accused Brij Raj Tripathi, led him, HC Harender, Constable Ami Lal at place of occurrence and pointed out the place of murder and places from where he and his associates Janardhan Prasad robbed jewellery and cash. He corroborated with the statement of PW16 Constable Ami Lal regarding preparing of pointing out memo Ex PW 16/D. He also stated that Sh Asit Kumar Srivastav came to the police station to know about progress of the case and on seeing accused Brij Raj Tripathi, he told him that accused Brij Raj Tripathi was earlier performing his duty as domestic servant at his house. The statement of Asit Kumar Srivasatav regarding identification of accused was recorded.
The witness stated that on 15.10.2003 IO Inspector Raghubir Prasad Meena, the witness himself and Constable Ami Lal were led by State Vs. Janardhan etc 31 accused Brij Raj Tripathi in Shakurpur, Delhi at H.No. B391392 Shakurpur, Delhi and ponited out one room at first floor of that house in which his mother and sister were residing as tenant in those days. Land lady Sukhvinder Kaur was also present at ground floor of that house. The accused Brij Raj Tripathi from one corner of the taand, took out one cloth potli (parcel) saying that it contained the purse of brown colour with jewellery items. IO opened the same and found one brown colour purse containing a sum of Rs 7220/ in denomination of 14 notes of Rs 500/ two notes of Rs 100/ and one note of Rs 20/ and jewellery items which were seized vide memo Ex PW 16/E after converting into a cloth parcel and sealing with the seal of CS. The witness stated that on 05.11.2003, he took the case property from MHC(M) for TIP as per directions of the IO and produced the same before Sh M.K. Nagpal Ld M.M. PW Shweta Srivastava also reached there and Ld M.M conducted TIP proceedings Ex PW 13/A. He also received parcel of case property duly sealed with court seal from the Ahlmad and deposited it with MHC(M). He also stated that IO Inspector J.S. Gill is no more on the earth. The charge sheet Ex PW 20/O is in his handwriting and bears his signatures at point A. He stated that exhibits of this case had been sent to FSL vide RC Ex PW 2/F on 15.09.2003 for analysis and later on expert opinion was collected during course of trial which are Ex PW 20/P, Ex PW 20/Q and Ex PW 20/R. Forwarding letter is proved as Ex State Vs. Janardhan etc 32 PW 20/S. The witness identified the pieces of bangles Ex P1 (collectively), two bangles Ex P2 (collectively), one footrest lifted from beneath the dead body Ex P3, knife got recovered by accused Janardhan @ Chotu Ex P4. The rope of white colour approximately 3 feet 8 ½ inches got recovered from suit case of accused Janardhan along with knife is identified by witness as Ex P5, the knife got recovered Ex P6, suit case Ex P7, half pant belonging to accused Janardhan recovered from the suit case Ex P8, photocopies of currency notes of Rs 12,250/ Ex P9A to K, photocopies of currency notes of Rs 7220/ Ex P10 (collectively). He also identified the jewellery items Ex P11 to Ex P18/12.
PLEA AND DEFENCE OF ACCUSED
26. In the statement under Section 313 Cr.P.C, accused Janardhan Prasad @ Chotu has admitted that he was working as domestic servant for about 4 years in the house of Sh N.N. Srivastava at 2nd floor of Flat no. 17C, Pocket A3, Green Apartments, Paschim Vihar, New Delhi. He also admitted that he used to call deceased Mohini Srivasatav as Mummy and used to keep his personal belongings in a store room constructed over the balcony of the rear side of the house. Also, he admitted that on 08.08.2003, after 11.30 a.m Smt. Preeti State Vs. Janardhan etc 33 Srivastava and Asit Srivastava heard a shouting voice from him from the balcony of the flat of Mohini Srivastava that he (accused) had been bolted by some one in the balcony. Immediately they reached back at the main entrance door of the flat of Mohini Srivastava and found the main door of flat open. He also admitted that he was inside the balcony which was bolted from outside by some one but denied that door could be easily bolted from both sides due to the fact that the jali above the bolt of the door was cut open. As regards other incriminating facts and circumstances emerging from prosecution case put to him by way of different questions. He either denied that same or has feigned ignorance about the same. He stated that it is a false case against him and the witnesses are interested witnesses. He is innocent and is falsely implicated in this case by the police officials he being a domestic servant in the house and nothing was recovered at his instance. He stated that he has nothing to do with the alleged offence. He did not lead any evidence in defence.
27. In the statement U/s 313 Cr.P.C accused Brij Raj Tripathi @ Raju has either denied the incriminating circumstances put to him or has expressed his ignorance about the same. He stated that the witnesses were deposing falsely against him and it is a false case. He is innocent. He was apprehended from his native village in Gorakhpur by police on State Vs. Janardhan etc 34 11.10.2003 and after keeping him for many days in police station, the police arrested him in this case. He was made to sign many papers in the police station. He has been implicated in this case by planting jewellery etc in collusion with complainant and his family. He also denied that accused Janardhan was known to him as he belongs to Gorakhpur which is his native place. He also stated that he would not lead any evidence in defence.
Although this accused refused in his statement to lead evidence but subsequently the two witnesses were brought and examined in defence.
28. DW1 is Sh. Lal Bihari from District Gorakhpur. He stated that father and mother of accused Brij Raj Tripathi namely Somnath and Chitra Lekha started to reside as tenant in his house since October 2002 to October 2003. There was some dispute between father and mother of Brij Raj Tripathi on 05.05.2003, the mother of the accused left his tenanted premises along with her four children. Somnath and accused Brij Raj Tripathi remained in his house as tenant. In October 2003, Chitra Lekha came to his house as accused Brij Raj Tripathi was indisposed. On the next day, she went along with with her son to hospital and after 78 days she came back and told him that her son was apprehended by police of Gorakhnath. On the next date, he was taken by State Vs. Janardhan etc 35 Delhi Police. The witness stated that to his knowledge accused Brij Raj Tripathi never came to Delhi for the period i.e October 2002 to October 2003.
29. DW2 is Chitra Lekha Tiwari, the mother of accused Brij Raj Tripathi. She has stated that there was dispute between her and her husband on 05.05.2003. She left the house of Lal Bihari and came to Delhi along with her four children. After about 5 months, i.e in October 2003, she came back to Gorakhnath as her son Brij Raj Tripathi was suffering from fever. She left her son at the shop of doctor. At Saket Nagar police apprehended her and took her to P.S Gorakhnath and asked her about whereabouts of her son Brij Raj Tripathi. Thereafter, her son was apprehended and beaten by police of P.S: Gorakhnath and on her crying, they beat her up again and admitted her to Anand Hospital. After about 78 days she came to know that her son was taken to Delhi by Delhi police.
Thereafter, the accused Brij Raj Tripathi closed his evidence.
ARGUMENTS :
30. The Ld Chief Public Prosecutor has argued that prosecution has proved its case beyond reasonable doubt. The accused Janardhan State Vs. Janardhan etc 36 Pandey @ Chotu in collusion with Brij Tripathi have committed the murder in question for the purpose of robbery. It is argued taht accused Janardhan @ Chotu was servant of the deceased and was living in the same flat in the balcony and after commission of crime, he bolted himself in the balcony as the jali of the door was cut and door could be bolted from inside and outside by anybody from either side as is clear from evidence of witnesses. He has also argued that accused Brij Raj Tripathi was servant of Sh. Rajender Nath Srivastav the elder brother of husband of deceased and both the accused persons are natives of Gorakhpur. They have got recovered the looted amount and weapon of offence is also got recovered by accused Janardhan. The medical evidence also supports the prosecution so the accused persons are liable to be convicted for the charges framed against them.
31. Ld counsel for accused Brij Lal Tripathi, on the other hand, has argued that case is based on circumstantial evidence. The date of occurrence is 08.08.2003. Accused Brij Lal Tripathi was arrested after about two months. The weapon of offence was recovered from co accused Janardhan. There is no evidence that accused Brij Lal Tripathi was seen in the house of victim. During relevant time only coaccused Janardhan was servant in the house of victim. It is argued that there are contradictions in the statement of PW3 to PW 6 and PW8 regarding accused Brij Lal Tripathi being servant in the house of elder brother of State Vs. Janardhan etc 37 the deceased. PW20 has stated that 2/3 months before the incident Brij Lal Tripathi was servant. It is argued that disclosure statement of accused Brij Lal Tripathi is undated. It is not signed by PW16 SI Kapil Jain of P.S Gorakhnath District U.P. Ld counsel for accused has also argued that in the TIP of case property artificial jewellery was mixed, so TIP has got no meaning. It is argued that IO Sh J.S. Gill died and could not be examined so ASI Chattar Singh is examined by prosecution to fill that gap. It is also argued that the place of recovery of accused Brij Lal Tripathi is stated to be G9192 by some witnesses while the other witnesses have stated that it was G39192. It is also argued that the two defence witnesses have proved that mother of accused was arrested first then the accused Brij Raj Tripathi was arrested, so accused Brij Raj Tripathi is falsely implicated in this case and is entitled to be acquitted.
32. The argument of Ld Amicus Curiae on behalf of accused Janardhan are that he was arrested on 08.08.2003 but his disclosure was recorded on 20.08.2003 though he was available throughout from 08.08.2003 to the police. In fact, after his arrest on 08.08.2003, he was in illegal detention of police and his detention was not shown on record. It is argued that when the accused Janardhan was available to the police and was found in the flat in question, why the room in which he was living in the balcony was not thoroughly searched and why recoveries State Vs. Janardhan etc 38 were made after about 12 days on 20.08.2003. It is argued that accused Janardhan is falsely implicated. In fact the offence of robbery and murder is committed by some one else by locking accused Janardhan in the servant room in the balcony and accused Janardhan is falsely implicated in this case, so he is entitled to be acquitted of the charges. FINDINGS:
33. I have heard Ld Chief Public Prosecutor for the State, Ld counsel for accused Brij Raj Tripathi @ Raju and Ld Amicus Curaie for accused Janardhan @ Chotu and have gone through the record of the case and relevant provisions of the law. The present case is based on circumstantial evidence. The important aspects and circumstances emerging in this case are being dealt with under different headings for the sake of convenience and the proper understanding and appreciating the evidence on record. But before that it would be appropriate to have a glance at the legal position as to the cases based on circumstantial evidence.
LEGAL POSITION AS TO THE CASES BASED ON CIRCUMSTANTIAL EVIDENCE In Sunder @ Lala and Ors. Vs. State 2009 VII AD (Delhi) 615 it was held as under:
State Vs. Janardhan etc 39 " 29. It is settled law that circumstances play very important role in the appreciation of evidence. The conduct of witnesses is a very important facet to determine their creditworthiness. "
34. As evidence, there is no difference between direct and circumstantial evidence. The only difference is in that as proof, the former directly establishes the commission of the offence whereas the latter does so by placing circumstances which lead to irresistible inference of guilt. (See Dalpat Singh v. State of Rajasthan 2005 Cr LJ 749 (Raj) (DB)). The evidence has not to be considered merely as a number of bits of evidence, but the whole of its together and the cumulative effect of it has to be weighed. (See Dukharam Nath V Commercial Credit Corpn Ltd AIR 1940 Oudh 35). No distinction has, therefore, to be made between circumstantial and direct evidence.
{See Miran Baksh V Emperor AIR 1931 Lah 529 and Thimma V State of Mysore (1970) SCC (Cr) 320}. The court must satisfy itself that the cumulative effect of the evidence, led by the prosecution, establishes the guilt of the accused beyond reasonable doubt. (See Shankar Bhaka Narsale V State of Maharashtra AIR 1972 SC 1171 and Chanan Singh V State of Haryana AIR 1971 SC 1554) State Vs. Janardhan etc 40 In Padala Veera Reddy v State of AP, AIR 1990 SC 79 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See also Shivu & Anr. v R. G., High Court of Karnataka, 2007 Cr LJ 1806 (SC)) In a recent pronouncement in Raju Vs. The State by Inspector of Police AIR 2009 SC 2171, as regards circumstantial evidence, the Hon'ble Apex Court observed as under:
"7. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad State Vs. Janardhan etc 41 (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v.
Sukhbasi and Ors. (AIR 1985 SC 1224);
Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC
621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
8. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v.
State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".
State Vs. Janardhan etc 42
9. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
10. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
State Vs. Janardhan etc 43
11. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence:
(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted".
12. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
13. In Hanumant Govind Nargundkar and Anr.
V. State of Madhya Pradesh, (AIR 1952 SC
343), wherein it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first State Vs. Janardhan etc 44 instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
14. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that State Vs. Janardhan etc 45 the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
15. These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr.
(2003 (11) SCC 261), Kusuma Ankama Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008) and Manivel and Ors.
v. State of Tami Nadu (Criminal Appeal No.473 of 2001 disposed of on 8.8.2008)."
PRESENCE OF ACCUSED JANARDAN IN THE FLAT BEING DOMESTIC SERVANT
35. The fact that accused Janardhan was domestic servant of husband of the deceased Mohini Srivastava in the flat in question is proved by the prosecution witnesses PW 3 Asit Srivastava, PW4 Preeti Srivastava and PW5 Sh. Rajender Nath Shrivastava. The accused Janardhan has also in his statement under section 313 CrPC admitted that he was working as domestic servant in the house of Shri N.N. State Vs. Janardhan etc 46 Shrivastava for the last four years. The three witnesses of the prosecution have also testified about the presence of accused Janardhan in the flat in question at the relevant time. It is stated by PW3 Asit Srivastava that accused was in the balcony and has shouted that he was in the balcony and the door of the balcony was bolted from outside. Similar statement is made by PW4 Preeti Shrivastava. The accused Janardhan has also admitted in the statement under Section 313 Cr.P.C that on 08.08.2003, after 11.30 a.m Smt. Preeti Srivastava and Asit Srivastava heard a shouting voice from him from the balcony of the flat of Mohini Srivastava that he (accused) had been bolted by some one in the balcony. Therefore, at the relevant time of murder of deceased Mohini Shrivastava the accused was present in the same flat.
36. From the above, it is clear that not only accused was the domestic servant with the family of victim but also he was present in the flat in question . Therefore, the accused alone was present in the flat in question with the victim who had been murdered in the flat. This circumstance require him to explain how and under what circumstances the murder and robbery in question took place.
In Prabhakar Jasappa Kanguni v. State of Maharashtra, A.I.R. 1982 (SC) 1217 it was held:
"16. The other circumstances listed above had State Vs. Janardhan etc 47 also been finally established, once circumstance
(a) is established, then, taken in conjunction with the other circumstances, particularly the undisputed fact that at or about the time of Malti's death, no third person excepting the accused and the deceased, was present in the house, it will inescapably lead to the conclusion that in all human probability, it was the accused appellant and none else, who had murdered the deceased by strangulating her to death."
In State of U.P. v. Dr. Ravindra Prakash Mittal, A.I.R.1992 (SC) 2045 the following observations were made:
"41. Even though we are not finding the respondent guilty solely on his false explanation, yet that explanation assumes much significance because it is for the respondent to come forward with an acceptable and plausible explanation explaining the circumstances under which the deceased had met with her end, since, in our considered opinion, the respondent was in the company of his wife on the previous night and was found in the bed room in the early morning."
State Vs. Janardhan etc 48
37. As already stated the accused alone was present in the flat in question with the deceased Mohini Srivastava. Therefore, in the light of Prabhakar Jasappa Kanguni's case (supra) and Dr. Ravindra Prakash Mittal's case (supra) presumption of commission of the murder of Mohini Shrivastava by him arises unless he gives proper explanation and acceptable defence that someone else has committed this murder and robbery.
38. The accused in his statement under section 313 Cr.P.C has taken the defence that at the relevant time he was bolted from outside in the servant room in the balcony of the flat. But this explanation of the accused is negated by the clearcut evidence of PW3 Asit Srivastava who has stated that the jali above the bolt (chhitakni) had cut marks and one can easily bolt the gate from both sides through that cut. He caught accused Chotu and handed over him to his father, who inquired him but accused Chotu gave his statement after changing it again and again. PW4 Preeti Srivastava has also stated in the Examinationinchief that the jali of the door was cut from the upper portion of the bolt and the balcony was bolted from inside in the room. Therefore, since the jali was cut the servant room of the accused in the balcony could be bolted from both sides can also be opened from both sides. Therefore, the accused State Vs. Janardhan etc 49 being bolted from the room side in the balcony was only to pretend that he was bolted inside the balcony by someone else. This plea of the accused does not stand to reason when the balcony can be opened and bolted from both sides due to cut in it. Instead of the giving the proper explanation he has given different versions on making enquiries from him by the family members as is clear from the statement of the PW3, PW4 and PW5. Hence, a very strong presumption arises again the accused that he is guilty of murder of Mohini Shrivastava . RECOVERY OF WEAPON OF OFFENCE
39. PW5 Rajender Nath Shrivastava has stated that on 21/8/2003 accused Janardhan along with the police officials came to the flat in question and got recovered one briefcase. From the briefcase one bloodstained knife sketch of which is ExPW 5/B was recovered. The total length of the knife was 23.3 cm and blade of the knife was 12.8 cm and the handle was 10.5 cm. The width of the knife was 1 ½ cm. He also stated that the nylon rope white colour was also recovered. The accused disclosed that he tied the neck of the deceased with that rope. The witness proved the seizure memo of the case property including the knife and rope got recovered by he accused as Ex PW 3/D. The statement of PW5 Rajender Nath Srivastava is corroborated by PW3 Asit Srivastava and PW 20 ASI Chatter Singh. The said briefcase was seized in presence State Vs. Janardhan etc 50 of PW5 Rajender Nath Srivastav and PW20 ASI Chatter Singh by the IO vide memo Ex PW 20/L. RECOVERY OF BLOODSTAINED ARTICLES
40. The prosecution witnesses have proved that accused Janardhan got recovered one bush shirt having bloodstains and one half pant having bloodstains also vide memo ExPW 3/DA. The FSL reports Ex PW 20/P and Ex PW 20/Q show that on the half pant and the shirt, the human blood was detected but the blood group could not be ascertained. In Keshavlal v. State of Madhya Pradesh, (SC) 2002 Cri.L.J. 1776 S.C. : A.I.R.2002 (SC) 1221 :2002(3) S.C.C. 254 :
2002(2) Scale 410 : 2002(2) J.T. 628 SC, it was held:
"Nonexamination of the finger print expert has not, in any way, affected the case of the prosecution because it has come on record that before the seizure of the weapon of offence many persons had handled it. Though the report of the Serologist is not available on the record, yet the report of the Chemical Analyser clearly and unequivocally shows that the clothes of the appellant and the weapon of offence were stained with human blood. Non ascertainability of the blood group cannot be made a basis to discard the evidence of the witnesses who otherwise inspire the confidence of the Court and are believed. No fault can be State Vs. Janardhan etc 51 found with the judgment of the High Court by which the findings of the acquittal recorded by the trial Court were set aside."
41. Therefore though the prosecution was required to prove that the bloodstains present on the half pant and articles got recovered by accused Janardhan had the blood stains of group of deceased Mohini Shrivastava but the mere fact that the prosecution was able to prove only the bloodstains on the clothes of the accused but not the blood group to match it with the blood group of the victim does not make the prosecution case doubtful. Though prosecution could be held to have produced a weak evidence of the bloodstains on the clothes of the accused. It still is an incriminating circumstances against accused though not strong incriminating circumstance against him. In Bhagwati Prasad v State of MP, 2009 XII AD(SC) 453, it was observed as follows:
"10. ..........the existence of blood or absence thereof would by itself not be such a fact as would completely wipe out the evidence of two eye witnesses."
MEDICAL EVIDENCE
42. PW9 is Doctor Vijay Jha who along with Doctor R.K Puria has conducted postmortem on the dead body of Mohini Shrivastava. He State Vs. Janardhan etc 52 has proved the postmortem report ExPW 9/A. In this report the cause of death is shown to be combined effect of pressure over neck structures (ligature strangulation) and stab injury to heart. It was also opined that both the injuries are sufficient to cause death in ordinary course of nature individually and collectively. Therefore, the recovery of nylon rope and the knife in question at the instance of accused Janardhan corroborates with this medical evidence of postmortem report. Further PW9 Doctor Vijay Jha has given the report as to the knife recovered at the instance of accused Janardhan and in this opinion Ex PW 9/C he has opined that the injury No.2 mentioned in the postmortem report could have been caused by knife examined by him. Therefore, the medical evidence and postmortem report produced and proved by the prosecution also supports its case.
RECOVERY OF STOLEN JEWELLERY AND CASH
43. At the instance of accused Brij Raj Tripathi besides cash in the sum of Rs 7220/ nine jewellery articles mentioned in the pointing out cum seizure memo Ex PW 16/E were recovered. These are precious jewellery articles identified by the daughter of the deceased Mohini Shrivastava, Doctor Shweta Shrivastava who has identified these articles as Ex P 12 to Ex P 18/12. She has also identified these articles in the identification proceedings conducted by learned Metropolitan State Vs. Janardhan etc 53 Magistrate. PW8 N.N. Srivastava has also identified the jewellery articles. PW 16 Constable Ami lal , PW 17 ACP Raghubir Prasad PW 20 ASI Chatter Singh have also identified these jewellery items got recovered by accused Brij Raj Tripathi.
44. The learned counsel for accused Brij Raj Tripathi has argued that the place of recoveries is not correctly described in the seizure memo in the statement of witnesses due to the contradiction with regard to house number in question from where the recovery was effected. It is also alleged that the prosecution witness the landlady has not supported prosecution case so recovery from accused Brij Raj Tripathi is not proved by the prosecution. But I do not agree with learned counsel for the accused Brij Raj Tripathi. No doubt some witnesses have described the place of recovery as G9192 and the other G39192 but all witnesses of said recovery have stated that the recovery was effected from Taand of the house in Shakurpur. Due to lapse of time of several years from the date of said recovery and date of examination in the court the contradiction as to the house No. is not significant to discard the recovery of jewellery effected at the instance of accused Brij Raj Tripathi. Further, though PW 18 Mrs Sukhvinder Kaur has not supported prosecution case and is hostile witness but she has certainly testified that the parents of the accused Brij Raj Tripathi were residing as tenant for 67 days is in her house. She also testified that the accused Brij Raj State Vs. Janardhan etc 54 Tripathi was brought by the police. She also stated that all family members of the accused vacated the room on the same night. But notwithstanding the fact that PW 18 is a hostile witness the recovery got effected by accused Brij Raj Tripathi cannot be disbelieved for the simple reason that it is unconscionable to believe that the police or the complainant party would plant such precious jewellery and money upon the accused to falsely implicate him in a murder and robbery case. Therefore, I am of the view that the recovery of cash in the sum of Rs 7,220/ and nine jewellery articles mentioned in the recovery memo Ex PW 16/E being Ex P 12 to Ex P 18/012 is proved by the prosecution against accused Brij Raj Tripathi.
45. From accused Janardhan the recovery of only Cash amount of Rs 12, 250/ is recovered vide memo ExPW 5/C and is proved by PW5 Shri Rajender Naraian Srivastava and also by ASI Chatter Singh.
46. The recovery of above looted jewellery and cash from accused Brij Raj Tripathi and Cash amount of rupees 12, 250 from accused Janardhan are also incriminating circumstances against them. PRESUMPTION OF ROBBERY CUM MURDER
47. As already stated the jewellery articles and cash of Rs 12, 200/ is proved by the prosecution against accused Brij Raj State Vs. Janardhan etc 55 Tripathi. In the cases of robbery cum murder such recovery of looted articles also gives rise to presumption of murder beside presumption of robbery. The recent and unexplained possession of stolen properties will be taken to be presumptive evidence of the charge of murder as well {see Sanjay @ Kala V State (NCT of Delhi) (2001) CrL.J 1231 (SC), Baijur V State of Madhya Pradesh AIR 1978 SC 522 (1978) Cr.L.J 646 (SC) and Eara Bhadarappa V State of Karnakata AIR 1983 SC 446 (1983) Cr.L.J 846 (SC)}. The presumption permitted to be drawn illust 114 (a) of the Evidence Act has to be read along with 'important time factor'. If the ornaments in possession of the deceased are found in possession of a person soon after the murder, a presumption of killing may be permitted. The close proximity of the recovery with the murder as 'important time factor' should not be lost sight of (See Tulsiram V State AIR 1954 SC 1, (1954) Cr.LJ 225, Gulab Chand V State of Madhya Pradesh AIR 1995 SC 1598).
48. The question, whether a presumption under illust (a) to s 114 of the Evidence Act, should be drawn is a matter which depends on the evidence and circumstances of each case, the nature of recovered articles, the manner of their acquisition, the nature of their identification, the manner in which the articles were dealt with by the accused, the place and the circumstances of their recovery, the length of the State Vs. Janardhan etc 56 intervening period and the ability of the accused to explain the recovery. {See Mohan Lal V Ajit Singh AIR 1978 SC 1183, Baiju V State of Madhya Pradesh AIR 1978 SC 522, Earabhadrappa V State of Karnataka (1983) 2 SCC 330 and State of Orrisa V Dayamidhi Bisoi 2003 Cr.L.J 123 (Orrisa) (DB)} Recent and unexplained possession of stolen articles can well be presumptive evidence of the charge even of murder committed at the robbery. {See Wasim Khan V State of Uttar Pradesh AIR 1956 SC 400, Alisher V State of Uttar Pradesh AIR 1974 SC 1830, Ganga Singh V State of Rajasthan 1977 Cr.L.R 365 (Raj) and Jangsingh V State of Rajasthan 1984 Cr.L.J 1135 (Raj)} In Earabhadrappa alias Krishnappa v. State of Karnataka, 1983(1) R.C.R.(Criminal) 292 : A.I.R.1983 (SC) 446 following observations were made by Hon'ble Supreme Court:
"11. This is a case where murder and robbery are proved to have been integral parts of one and the same transaction and therefore the presumption arising under illustration (a) to s. 114 of the Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her gold ornaments which form part of the same transaction. The prosecution has led sufficient evidence to connect the appellant with the commission of State Vs. Janardhan etc 57 the crime. The sudden disappearance of the appellant from the house of P.W.3 on the morning of March 22, 1979 when it was discovered that the deceased had been strangulated to death and relieved of her gold ornaments, coupled with the circumstance that he was absconding for a period of over one year till he was apprehended by P.W. 26 at village Hosahally on March 29, 1980, taken with the circumstance that he made the statement Ex. P35 immediately upon his arrest leading to the discovery of the stolen articles, must necessarily raise the inference that the appellant alone and no one else was guilty of having committed the murder of the deceased and robbery of her gold ornaments. The appellant had no satisfactory explanation to offer for his possession of the stolen property. On the contrary, he denied that the stolen property was recovered from him. The false denial by itself is an incriminating circumstance. The nature of presumption under illustration (a) to s. 114 must depend upon the nature of the evidence adduced. No fixed time limit can be laid down to determine whether possession is recent or otherwise and each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according as the stolen article is or is not calculated to pass readily from hand to hand. If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed cannot be said to be too State Vs. Janardhan etc 58 long particulary when the appellant had been absconding during that period. There was no lapse of time between the date of his arrest and the recovery of the stolen property"
Therefore, the presumption can be drawn against Brij Raj Tripathi that he not only committed robbery in question but also murder of Mohini Shrivastava.
DEFENCE OF ACCUSED BRIJ RAJ TRIPATHI
49. DW1 Shri Lal Bihari the alleged landlord of accused Brij Raj Tiwari and his family in Gorakhpur is produced by accused Brij Raj Tiwari to prove that he remained in Gorakhpur during October 2002 to October 2003 and was not in Delhi on the date of incident. But the statement of DW1 Lal Bihari is not worth reliance in this regard as to prove the plea of alibi like this strong piece of evidence is required. DW1 in the crossexamination has admitted that he was having visited terms with the family of accused Brij Raj Tiwari till then. He also admitted that he was in government service in CRPF up to 2/2/2002 and his services were terminated on 2/2/2002. He also admitted in his crossexamination that his previous wife has made complaint against him in the court that he was involved in adultery/bigamy while living illegally with another lady. Therefore, this witness DW1 Lal Bihari is not such a witness on with this court can repose any confidence.
State Vs. Janardhan etc 59
50. DW2 is Chitralekha Tiwari made statement on record that first she was arrested and her son Brij Raj Tiwari was later on arrested in Gorakhpur. But she also does not seem to be a reliable witness. Earlier in this case she has produced false certificate regarding age of the accused Brij Raj Tripathi by producing a false school leaving certificate by giving statement on 9/2/2005. Later, on 17/3/2005 she again gave statement in the court by tendering unconditional apology before the court and requested for a lenient view by promising that in future she will not act like this. She also filed her unconditional apology Ex PW 1/B explaining the circumstances and admitting her guilt and tendering unconditional apology and ensuring the court that she will not repeat such thing in future. With this kind of activities the mother of the accused Brij Raj Tiwari is also not a reliable witness. Therefore, the defence of the accused is not worth reliance to infer that accused was not in Delhi or was at Gorakhpur at the relevant time when the robbery cum murder of victim Mohini Shrivastava took place in Delhi.
ADDITIONAL/MISSING LINK IN THE CHAIN OF CIRCUMSTANCES
51. It is a well settled principle that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue then the same offers an additional link in the chain of State Vs. Janardhan etc 60 circumstances to complete the chain. (See Swepan Patra v State of West Bengal (1999) 9 SCC 242; Anthony D'Souza & ors v State of Karnataka 2002 (10) AD 37 (SC)) A false answer offered by the accused when his attention was drawn to a circumstance renders that circumstance capable of inculpating him. In such a situation a false answer can also be counted as providing 'a missing link' for completing the chain. (See State of Maharashtra v Suresh 2000 (1) SCC 471, 2000 SCC (Cr) 263; Kuldeep Singh & ors v State of Rajasthan 2001 Cr LJ 479 (SC), (2000) 5 SCC 7; Joseph v State of Kerala AIR 2000 SC 1608, (2000) 5 Sec 197; Jalasab Shaikh v State of Goa AIR 2000 SC 571, 2000 AIR SCW 111.) Where the accused on being asked, offers no explanation or explanation offered is found to be false, then that itself forms an additional link in the chain of circumstances to point out the guilt. (See Chandrasekhar Kao v Ponna Satyanarayana AIR 2000 SC 2138, JT 2000 (6) 465 SC; State of Tamil Nadu v Rajendran AIR 1999 SC 3535, 1999 Cr LJ 4552; Hari Lal v State 2001 Cr LJ 695 (All) (DB); Madho Singh & etc v State of Rajasthan 2001 Cr LJ 2159 (Raj) (DB); Sonatan Mahalo v State of West Bengal 2001 Cr LJ 3470 (Cal) (DB).)Silence of inmates of the house about cause of the death of the victim, would become additional link in chain of circumstances. (See Trimukh Maroti Kirkan v State of Maharashtra, 2007 Cr LJ 20 (SC).) State Vs. Janardhan etc 61 The accused absconding after incident is an additional circumstance which reinforces prosecution case, no explanation given by the accused as to where they were, indicates their guilty mind. (See Vaman Jaidev Raval v State of Goa, 2007 Cr LJ (NOC) 431 (Bom).
52. In the present case accused Janardan has self locked himself in the servant room in the balcony as proved by the statement of PW3 Asit Srivastava who has stated that the bolt of door could be opened and closed from both sides due to cut in the jali and PW4 Preeti Srivastavas has also corroborated with the statement. But accused Janardan has failed to explain another has denied that the lock of jali can be opened from both sides of the door of balcony. He being inside the flat in question at the time of murder and robbery of the victim Mohini Devi has failed to explain as to how the murder and robbery took place. Besides he could not offer any plausible explanation of his innocence to family members/relatives of victim or initally to investigating police as to who committed murder and robbery in the flat in question in which he himself was present at the relevant time. Therefore, this fact is additional link in the chain of circumstances appearing against accused Janardan in this case.
53. As regards accused Brij Raj Tiwari he has taken a false plea of alibi that he was in Gorakhpur at the time of incident in question. He State Vs. Janardhan etc 62 has also denied that he was servant of the elder brother of husband of the deceased Mohini Devi. He through his mother has produced a false school leaving certificate to claim that he was a juvenile to misguide court to obtain the benefit of Juvenile Justice Act while he was not a juvenile. His mother later on tendered apology, as referred before. He after committing robbery and murder with coaccused had absconded from the spot and went to Gorakhpur. Therefore, these facts are also making up the missing link against him in the chain of incriminating circumstances appearing against him in this case. RESULT OF THE CASE
54. In the light of the above discussion, I hold that the prosecution has been able to prove that with a clearcut motive of committing robbery and for this purpose the murder of victim Mohini Devi the accused persons joined hand and committed robbery and murder. However, the fingerprints on the knife recovered at the instance of accused Janardan are not got identified to show which of the accused has committed murder by using deadly weapon, i.e., knife. There were no eyewitness to show which of the two accused persons used knife in committing murder so Section 397 IPC is not attracted notwithstanding the fact that it is proved by the prosecution that the accused persons in furtherance of their common intention committed murder of Mohini State Vs. Janardhan etc 63 Srivastava. Therefore, charges under Section 392 IPC and also under Section 302 /34 IPC are clearly established against the both accused persons. The accused persons are accordingly convicted under Section 392 IPC and also under Section 302/34 IPC. Let they be heard separately on the point of sentence.
Announced in the open court on this 13th day of December 2010 (S. K. SARVARIA) DISTRICT JUDGEVIII & INCHARGE ADDITIONAL SESSIONS JUDGE ROHINI COURTS, DELHI State Vs. Janardhan etc 64 IN THE COURT OF S.K. SARVARIA DISTRICT JUDGEVIII & INCHARGE ADDITIONAL SESSIONS JUDGE:
ROHINI COURTS DELHI S.C. No. 124/2010/2003 State Vs 1. Janardhan Prasad @ Chotu S/o Lotan Prasad R/o Village Karma Bujurg P.S Guleria, District Gorakhpur Uttar Pradesh.
2. Brij Raj Tripathi @ Raju S/o Somnath Tripathi R/o Village Birhi Khurd, P.S Uswa Bazar District Uttar Pradesh.FIR No. 431/2003
Police Station Paschim Vihar Under Sections 302/392/34 IPC. ORDER ON SENTENCE
1. Vide my separate judgment dated 13th day of December 2010, accused persons were convicted for the charges under Sections 302/392/34 IPC.
State Vs. Janardhan etc 65
2. Learned Additional Public Prosecutor for the State has argued for capital punishment as convict Janardhan being domestic servant along with coconvict had committed brutal murder of victim woman. The co convict Brij Raj Tripathi was also domestic servant of close relative of victim in adjacent flat. The murder was committed to commit robbery, so it is argued that extreme penalty should be awarded to convicts.
3. On the other hand, learned counsel for the convict Janardan and Ld amicus curie for convict Brij Raj Tripathi have argued that convicts are not previous convict, they are young men so lenient view may be taken against them.
4. The sentence for murder prescribed by section 302 IPC is death 'or imprisonment for life' in the alternative. The sentence of life imprisonment is the minimum, provided under this section, and that cannot be reduced even if the court so desires. {See Shamim Rahmani v State of Uttar Pradesh AIR 1975 SC 1883, 1889, 1975 Cr LJ 1654.)
5. The question of sentence is a matter of judicial discretion. The relevant considerations in determining the sentence, broadly State Vs. Janardhan etc 66 stated, include the motive for and the magnitude of the offence, and the manner of its commission. {See Krishan v State of Haryana 1997 Cr LJ 3180 (SC)}. The determination of sentence in a given case depends on a variety of considerations; the more important being the nature of the crime, the manner of its commission, the motive, which impelled it and the character and antecedents of the accused. {See Apren Joseph alias Current Kunjukunju & ors v State of Kerala AIR 1973; SC 1, 1973 Cr LJ 185}. The heinousness of the crime is a relevant factor in the choice of the sentence. The circumstances of the crime, specially social pressures which induce the crime which we may epitomize as a 'just sentence in an unjust society' are another consideration. {See Shiv Mohan Singh v State (Delhi Admn) AIR 1977 SC 949; 1977 Cr LJ 767}.
6. Although the injuries mentioned in the post mortem report of the deceased Mohini Srivastava show the brutality and weapon of offence used is knife but the Hon'ble Supreme Court emphasized that in every murder case, brutality is involved, how the same took place is the relevant and necessary material to constitute a crime, such as murder committed for gain and when there is nothing exceptionally gruesome about the manner of committing the murder, the death penalty is not justified {See Subhash Ram Kumar Bind alias Vakil & State Vs. Janardhan etc 67 Another Vs. State of Maharashtra (2003) Cr LJ 443 (SC), State of Himachal Pradesh Vs. Manohar Singh Thakur (1998) Cr LJ 3630 (SC)}.
7. In every incidence of murder, brutality is involved. Brutality, obviously would be an existing factor, but how the same did take place is the relevant and necessary material to be considered. Brutality by itself will not bring it within the ambit of rarest of rare cases {See Registrar General High Court of Karnataka Vs. Prakash Jadav (2006) Cri LJ 3393 (Kant) (DB); Shyam Lal Vs. State of Chattisgarh (2006) Cr LJ 4743 (Chattisgarh) (DB)}.
8. Keeping in view the over all facts and circumstances of the case, I do not find this case to be one amongst rarest of rare cases to justify awarding of capital punishment to the convict. Therefore, the convicts Janardan and Brij Raj Tripathi are awarded sentence of life imprisonment for the offence under Section 302/34 IPC. However, in the light of Bidhan Nath alias Parijat Kusum Nath & Ors Vs. State of Assam 2000 Cr LJ 1144 (Gau) (DB) there is no need to award fine under Section 302 IPC in the given facts and circumstances of the case. In addition both the convicts are awarded sentence of rigorous imprisonment of 7 years each and to pay fine in the sum of Rs. 2,000/ State Vs. Janardhan etc 68 u/Sec.392/34 IPC each convict. In default of payment of fine convicts persons to go simple imprisonment for 6 months each. However, substantive sentences of imprisonment shall run concurrently. The period of detention already undergone by convicts during the period of investigation and trial of this case shall be set off against the term of imprisonment imposed against the convicts by this order as provided u/s 428 Cr.P.C . The judgment and order on sentence be sent to server (www.delhidistrictcourts.nic.in).
The copy of judgment and order on sentence be supplied to the accused free of cost. File be consigned to record room. Announced in the open court on this 15 th day of December 2010 (S. K. SARVARIA) DISTRICT JUDGEVIII & INCHARGE ADDITIONAL SESSIONS JUDGE ROHINI COURTS, DELHI State Vs. Janardhan etc