: 1 : IN THE COURT OF SHRI [ENTITY] ADDITIONAL SESSIONS JUDGE NEW DELHI [PRECEDENT] s/o Sh [ENTITY] r/o H. No 593A/2 Ward No.2, Mehrauli, New Delhi Permanent address: Village Bijauli, PS Vah, Distt Agra, UP. FIR No. 747/05 Police Station: Okhla Industrial Area Under [SECTION] [ACT] JUDGMENT
The SHO police station Okhla industrial Area has challaned the accused under [SECTION] [ACT] alleging that as per investigation made by the police the accused has committed murder of one chowkidar Shri [ENTITY] on the night intervening 20/210805 at about 10.30 p.m. to 9 a.m. at Factory No. F27/4, Okhla Industrial Area, PhaseII, New Delhi. The learned Metropolitan Magistrate concerned after supplying the copies of documents in question and complying with the provisions of [SECTION] [ACT] committed the case to the Court of session as required under [SECTION] [ACT]. After hearing the arguments on behalf of the parties the prima facie case under [SECTION] [ACT] was found to be made out, so the charge under [SECTION] [ACT] was framed against the accused on 7/2/2006 to which he pleaded not guilty.
2. In support of its case the prosecution has examined 21 witnesses in all. PW1 [ENTITY] is a photographer in Crime Team, South Delhi and has stated that he took 16 photographs of the spot. Two photograph were washed : 2 : out at the time of development. He proved the negatives of the photographs Ex P1/ 114 and the positives as ExP2/114. PW2 [ENTITY] reached the spot from the Police Station and found SHO and other police officials present there. He stated that IO seized one iron pipe, one pair of shoes black colour, one uniform of bluecollar, one Tshirt. The blood was lifted from spot in gauge. The bloodstained concrete and the earth sample were also collected from the spot. They were In separate pulandas and sealed with the seal of A M. and was seized vide memo Ex PW2/A. PW3 [ENTITY] also reached the spot in the factory in question like PW2 and found the police persons present there. As per direction of the I O. he took the dead body of the deceased to AIIMS mortuary on 21/8/2005 and on 22/8/2005 after post mortem the doctor handed over to him five sealed parcels and two sample seals which he later handed over to I O. who seized the same vide memo Ex PW3/A. He also stated that during his supervision the dead body was not tampered with. PW4 [ENTITY] has stated, in short, that he along with PW 2 went to the spot on 21/8/2005 , the IO recorded statement of [ENTITY], prepared ruqqa and he took the same for registration of FIR and returned to the spot.
3. PW5 Shri [ENTITY] is the owner of the shed in Okhla Phase II bearing No. F.27/4 and has stated, in short, that the shed was lying vacant for the last 6/7 months from the date of incident and were given to Paragon Security Network, by him. The said Security Agency posted two security guards and he was paying Rs. 4000/ each per month to Paragon Security Network. At the time of incident, renovation work was going on and 4/5 persons were working there. The accused was also working there as a Painter and he was employed by Security Guard [ENTITY] and accused : 3 : along with three or four other persons were doing whitewash of the factory at that time . He also stated that on being informed by his manager as about the incident he went to the spot and found the dead body of Security Guard tied with the railings of staircase. On checking he found that seven ceiling fans of his factory were stolen. PW6 [ENTITY] has stated, in brief, that he was working as Manager in Indian Handicraft Emporium which was having a factory at F.27/4, O I A which was lying vacant. Before the day of incident, the factory was handed over to Paragon Security for its supervision and two security guards were posted there. The security guard [ENTITY] was staying there. The renovation work was going on during those days. On 21/8/2005, he received information that the factory was lying closed and painters were standing outside. He peeped inside the factory and found blood stains over stairs and informed the police at 100 number and informed his owner Shri [ENTITY] who also came to the spot.
4. PW7 [ENTITY] is the DD writer and a stated that he recorded DD No. 14 copy of which is Ex PW 7/A PW8 Shri [ENTITY] is a hostile witness and did not support the prosecution. PW 9 [ENTITY] is the Duty Officer and has proved the copy of FIR in question as Ex PW 9/A PW 10 [ENTITY] is a clerk working in Paragon Network Security Private Limited and has proved the employment form of deceased [ENTITY] as Ex PW 10/B1 andB2. PW11 SI [ENTITY] is the draftsman with Crime Branch and has proved the site plan Ex PW 11/A. PW 12 [ENTITY] is the Security Guard with Paragon Security Services and has stated, in brief, that the accused on 27/8/2005 got recovered one bloodstained iron pipe vide memo Ex PW 12/A, one plas, one pechkas and one empty half bottle liquor vide memo Ex PW 12/B and one bamboo staircase vide memo Ex PW 12/C. the further : 4 : examination of the witness was deferred as the case property had not been received from CFSL and this witness did not turn up for a further Examination inchief or his crossexamination.
5. PW 13 [ENTITY] has stated that he took the exhibits of the case from MHCM Okhla and took it to CFSL, Calcutta and deposited there with seal intact. PW 14 [ENTITY] stated, in brief, that on 27/8/2005 he joined investigation of the case with the IO and on information and pointing out of the secret informer the accused was arrested. The personal search of accused was conducted vide memo Ex PW 14/A His disclosure statement was recorded vide memo Ex PW 14/B. The neighbours [ENTITY] and [ENTITY] also came there. The IO seized the fans vide memo Ex PW 8/A. Thereafter, the accused took the police team to the spot at the factory in question and pointed out the spot and I/O prepared pointing out memo Ex PW 14/C. He also supported the evidence of PW 12 regarding the recovery of articles vide memo Ex PW 12/A to Ex PW 12/C. PW 15 [ENTITY] is a formal witness and has only taken the copies of FIR to the local Metropolitan magistrate, Deputy Commissioner of Police and Additional Commissioner of Police from the police station and had returned back. PW 16 [ENTITY] is also a formal witness and has stated that he was posted as Head Constable in Police Control Room and on receipt of a phone call that the blood was lying in basement floor of house No. S. 27/4, Okhla PhaseI, he recorded the information in the PCR form copy of which is Ex PW 16/A .
6. PW 17 Insp [ENTITY] is the investigating officer and was posted as SHO of the police station concerned at the relevant time. He in a statement has stated about the various steps taken by him during the investigation and : 5 : the memos prepared by him with regard to seizure of articles. The article seized are identified by the witness. He identified the pent belonging to accused as Ex PW 17/P1, the floor mattress and Tshirts as Ex PW 17/P2 and P 3 respectively. The iron pipe is identified by him as Ex PW 17/P4, and the uniform (pent and shirt) as Ex PW 17/P5 and P6, pair of black shoe PW 17/P7, pipe rinch and pechkas as Ex PW 17/P8 and P9, key with keyring Ex PW 17/P 10, pipe Ex PW 17/P 11, empty liquor bottle Ex PW 17/P 12, black/green air bag and six fan heads Ex PW 17/P 13/16, 18 fan blades PW 17/P 14/118 collectively, a fan head PW 17/P 15, three fan wings Ex PW 17/P 18/13 and the bamboo ladder Ex PW 17/P 19. The PW 14 was recalled for a further Examinationinchief and has identified the articles proved by PW 17. PW 18 [ENTITY] is MHCM of the concerned police station and is a formal witness and has stated that the SHO on 22/8/2005 had deposited five sealed parcels and two sample seals and on 27/8/2005 he handed over nine exhibits and on 28/8/2005 he had deposited two sealed parcels and one sample seal. At the direction of the I/O he handed over 23 exhibits and viscera through PW 13 to FSL Calcutta and during his possession the seals were intact and were not tampered with.
7. PW 19 is Shri [ENTITY] has stated in short, that he has last seen the accused with the victim on the night of 20/8/2005, i.e., a day before the dead body of the deceased was found from the spot. PW 20 Dr [ENTITY] Senior Resident is the doctor who conducted postmortem examination of the deceased Shri [ENTITY] and gave his report Ex PW 20/A He also prepared the MLC of the accused Ex PW 20/B in which he has given the opinion that injury No.6 of the MLC could be possible with the weapon of offence, i.e., iron pipe and injury No. 1 to5 could be possible by teeth bite. PW : 6 : 21 Shri [ENTITY] is a public witness, he turned hostile and did not support the prosecution case.
8. In his statement under [SECTION] [ACT] the accused though has admitted that [ENTITY] was posted with Paragon Security and he used to remain on duty at the shed during daytime only. He has admitted that he was working as painter and was employed by Security Guard [ENTITY] for whitewash. He also stated that he was working there for the last about a month or 1 1/2 months. His neighbourer whose name he did not remember had asked him to join that duty. As regards the other prosecution evidence put to him in his statement under [SECTION] [ACT] he has either denied it or has feigned ignorance about it. He has stated that it is a false case against him and he has been falsely implicated in this case and he was not present in the factory on the day of the incident. The accused took some adjournments for producing defence evidence but did not produce it and ultimately on 22/1/2008 the learned defence counsel stated that the accused did not want to lead any evidence in defence so the defence evidence was closed.
9. The learned Additional Public Prosecutor has argued that PW 19 Shri [ENTITY] has proved that he had seen the accused and the deceased together in the night and on the following day the dead body of the deceased [ENTITY] was found in the factory premises in question. It is also argued that the prosecution through its witnesses has proved the recovery of weapon of offence and incriminating articles at the instance of the accused. It is argued that besides proving the fact that the accused was last seen with the deceased the prosecution has also proved the other circumstantial evidence and the fact : 7 : of recovery of weapon of offence and other complete chain of circumstantial evidence which prove the case of the prosecution against the accused beyond reasonable doubt. Therefore, the accused is liable to be convicted under [SECTION] [ACT].
10. The argument on behalf of the accused are that there was no proper investigation of the case conducted by the I/O who instead of investigating the case has thoroughly focused upon the present accused. It is argued that PW 8 the public witness, was crossexamined on behalf of the prosecution and has categorically stated that no confession statement of the accused was recorded in his presence. It is argued that no recovery was made by the prosecution at the instance of the alleged confessional statement recorded on 27/8/2005 and the articles alleged to be recovered were already in possession and knowledge of the police as it is very strange that although the police got the body recovered from the staircase, however, it did not look/peep below the staircase and could not see the ladder (bamboo staircase) lying there.
11. The next argument is that the prosecution itself is taking two self contradictory stands, as per statement of PW14 [ENTITY] the accused was absconding but at another point he has stated that as per secret information accused was arrested near his house on 27/8/2005 and his room was searched. The accused himself has stated in his statement that he was arrested from Firozabad and not from Delhi, where he has gone since morning of 20/8/2005.
12. It is argued on behalf of the accused that the two independent witnesses PW8 and PW 21 have specifically denied the alleged recoveries : 8 : made from the room of the accused which vitiates the prosecution story to prove that motive behind the murder was the theft of ceiling fans. It is argued that the recovery of ceiling fans is in fact planted, the same could be inferred from the statement of PW5 Shri [ENTITY] the owner of the factory who stated that fans were 20 years old whereas PW 14 has stated that the fans appeared new one. There is also discrepancy in the number of fans recovered, at one point the I/O stated that there were six fans and 18 blades but at another point he stated that there were seven fans and 21 blades. All these facts are unsupported by the public witnesses and even by the complainant PW 19. It is also argued that although prosecution, during whole trial, tried to bring home the motive behind the crime that accused had stolen fans 15/20 days back, however, there was no complaint/evidence, either by the deceased or by the Paragon Securities's witnesses nor of owner or any other witness who was working in the factory prior to the murder of the deceased [ENTITY] for the alleged theft of the missing fans. There was so no blood stains were found on the fans or its wings which disprove the theft of the ceiling fans after committing the murder.
13. It is argued that there is no eyewitness and the case of the prosecution is based upon the circumstantial evidence. The last seen evidence alone is not sufficient to convict the accused nor the conviction of the accused should be recorded on conjecture and surmises without reliable evidence. Reliance is placed upon the authority [PRECEDENT] and [ENTITY] where in following observations were made: "In the present case also, there is no proximity of time and place. We have already noted that the dead body, even if it is to be accepted, was that of the deceased : 9 : [ENTITY], had been recovered after 10 days after the date of which the deceased was last seen in the company of the appellant. This singular piece of circumstantial evidence available against the appellant, even if the version of PW10 is to be accepted, is not enough. It is fairly well settled that the circumstantial evidence in order to sustain the conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused."
14. Reliance is placed upon the authority [ENTITY] Vs State of Maharashtra 2007 (4) Crimes 12 (SC) where in following observations were made: "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 [PRECEDENT]), [PRECEDENT], Earabhadrappa V. State of Karnataka, (AIR 1983 SC
446) [PRECEDENT], [PRECEDENT] and [PRECEDENT]. The : 10 : 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 [PRECEDENT] it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstance must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt."
15. The Reliance is next placed upon the authority [ENTITY] Vs Sanjay Thanran And Anr. 2007 (2) Crimes 294 (S. C.) wherein it was held:
"From the principle laid down by this Court, the circumstance of lastseen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and : 11 : placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons : 12 : were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case."
16. The next authority relied upon is [PRECEDENT] wherein it was held:
"No doubt the offence is a shocking one but the gravity of the offence cannot by itself overweigh as far as legal proof is concerned. Invariably in such cases a person last seen with the victim, unless otherwise there are circumstances prima facie exonerating him, would be the prime suspect but in the ultimate judicial adjudication suspicion, howsoever strong, cannot be allowed to take the place of proof. With that caution in mind we shall now proceed to examine the facts and circumstances as put forward and the various arguments advanced."
It was further observed as follows:
"It is not uncommon in villages for children to go about the fields and walk short distances while coming back to the village. In any event the accused had given an explanation that he sent the girl back to the village in a : 13 : truck and the same cannot be held to be not plausible and therefore false."
It was further observed that the conjectures or suspicion should not be allowed to take the place of the proof.
17. The next reliance is placed upon the authority [PRECEDENT] wherein following observations were made:
"The last circumstance relied on by the prosecution is that the total ignorance of the incident pleaded by the appellant is false, and would itself furnish a link in the chain of causation. We have come to the conclusion that the appellant was not present in the house at the time when [ENTITY]'s dead body was discovered. That makes it impossible to hold that the appellant's plea is false. Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused."
It was further observed as follows:
" It is not to be expected that in every case depending on circumstantial evidence, the whole of the law governing cases of circumstantial evidence should be : 14 : set out in the judgment. Legal principles are not magic incantations and their importance lies more in their application to a given set of facts than in their recital in the judgment. The simple expectation is that the judgment must show that the finding of guilt, if any, has been reached after a proper and careful evaluation of circumstances in order to determine whether they are compatible with any other reasonable hypothesis."
18. Lastly, the Reliance is placed upon the authority [ENTITY] Vs State of Gujarat (1997)7 SCC 156 wherein it was observed as follows:
"Though motive for murder may not be revealed in many cases but if evidences of murder are very clinching and reliable, conviction can be based even if the motive is not established. In a case of circumstantial evidence, motive assumes greater importance than in the case where direct evidences for murder are available. In the instant case, no motive has been ascribed as to why the accused would cause the murder of her motherinlaw along with some unknown assailant by sharing a common intention with such assailant or assailants. There is no evidence that there was bitter relation between the deceased and the accused. On the contrary, it is apparent that the members of the family had decided : 15 : that the deceased would be kept under the care of the accused.
It was further observed by the Hon Supreme Court as follows:
"Even if it is assumed that the accused made false statements when examined under [SECTION] of the [ACT], the law is well settled that the falsity of the defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea may be considered as an additional circumstance if other circumstances proved and established point out the guilt of the accused. In this connection, reference may be made to the decision of this Court in [ENTITY] V. State of Maharashtra.
The principle for basing a conviction on the basis of circumstantial evidences has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case of depending largely upon circumstantial evidence, : 16 : there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, established the guilt of the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions ([ENTITY] V. State of Orissa) We may indicate here that more the suspicious circumstances, more care and caution is required to be taken otherwise the suspicious circumstances may unwittingly enter the adjudicating thought process of the court even though the suspicious circumstances had not been clearly established by clinching and reliable evidences. It appears to us that in this case, the decision of the Court in convicting the appellant has been the result : 17 : of the suspicious circumstances entering the adjudicating thought process of the Court. "
19. The next argument is that as per postmortem report the eyes of the deceased were shut and all the injuries were on front portion (not on the back portion of the body), had there been scuffle or fight with the deceased his eyes would have been wide open, there would have been injuries on every part. Therefore, it seems that the murder was committed when the deceased was asleep. And if it was the case, then who inflicted the injuries upon the left knee of the accused and bed ridden the fingers of the hand of the accused as per the prosecution story
20. It is also argued that the statement of PW 19 is wholly unreliable and according to charge sheet itself on that night there was rain, therefore, it was highly improbable for the witness to come out for walking that too during late hours. Then it is argued that if the prosecution has failed why it had not medically examined the accused on the alleged date of arrest, i.e., on 27/8/2005 and why they waited till 28/8/2005 and why his wearing pant was not sent to FSL for examination if any bloodstains were present upon it, if it was the same as alleged by the prosecution.
21. I have heard the learned Additional Public Prosecut/or for the state and the learned counsel for the accused and have gone through the written arguments filed on behalf of the accused. No written arguments are filed on behalf of State.
22. In this case it is not disputed that the deceased [ENTITY] was : 18 : employed with Paragon Securities and was posted in the shed in question belonging to PW5 Shri [ENTITY]. It is also admitted by the accused in a statement under [SECTION] [ACT] that he was working in the said shed for the last about a month or 1 1/2 month. PW 19 has stated in short, that on 20/8/2005 at about 10.3o p.m. the accused and the deceased were present in an STD booth near his jhuggi. He inquired from the accused as to why he had come to meet the deceased at that late hour. Accused told him that he was going to his village at about 11 p.m. and he had come to meet the deceased. Accused and the deceased went to take meals and thereafter both of them went inside the factory to sleep. On the next day in the morning the gate of the factory was found locked. On being informed the police also reached the spot. The dead body of the deceased was shown to him lying in the stairs of basement. The hands of the deceased had been tied from behind. His mouth was gagged. The neck of the deceased was tied with wire. This witness joined the investigation at the time of arrest of accused and the accused was arrested on his pointing out to the police at about 2.30 p.m. on 27/8/2005. This witness has also stated that accused made disclosure statement and got recovered from the factory one iron pipe, a pipe rench, one pechkas and half empty bottle of liquor. Police also seized one staircase/ladder. The witness identified the case property PW 17/P8 to P12 and P19. There is nothing is in the crossexamination of this witness which may discredit these statements made by him in the examination in chief. Therefore, through this witness the prosecution has been able to establish on record the last seen evidence which is treated as important in a case based on circumstantial evidence . What is important is that this witness PW 21 has seen the accused and deceased on the night before the dead body of the deceased was found in the shed in question, the following day. I do not find force in the arguments made on : 19 : behalf of the accused that as per charge sheet on the night in question there was rain and therefore it was highly improbable to witness to come out for walking in the light. There is no such legal presumption. Further there is nothing in the cross examination of PW19 in this regard which may doubt his presence near his jhuggi on the said night.
23. It is, no doubt, that PW8 and PW 19 who are produced to prove the recovery of the ceiling fans from the house in which the accused was living at the instance of the accused have turned hostile and were crossexamined by Leonard Additional Public Prosecutor for the State. But the mere fact that these two public witnesses have not supported the prosecution on the question of recovery of the ceiling fans does not make the credit worthy statements regarding recovery of said case property by the police constable PW 14, and the I/O PW 17 vide memo Ex PW8/A, untrustworthy. Further these two public witnesses PW8 and PW 19 have identified their signatures on the seizure/memo Ex PW8/ A and it is difficult to believe that they signed it without knowing the contents. The PW 21 has proved that the accused was staying as a tenant in one of his rooms. PW8 has also stated that the accused was his neighbour. The prosecution can certainly rely upon the statement of the hostile witness so far as it supports its case. Therefore, the recovery of the ceiling fans is proved by the prosecution at the instance and from the house where the accused was living as a tenant. True, PW 14 has stated in the cross examination that the fans appeared like new ones while the owner of the shed in question PW5 has stated that the ceiling fans were purchased about 20 years back. But this contradiction between these statements made by these two witnesses in their crossexamination is not material on account of the fact that the old fans if painted look new. No question is put to the PW5 in the : 20 : crossexamination whether these fans were recently got painted or not. The statement of the IO that six fans and 18 blades were recovered finds complete corroboration with statement of PW 14 so merely because in the cross examination he has stated that the accused had got recovered total seven fans and 21 wings does not discredit the prosecution case in this regard. The discrepancy seems to have occurred for the reason that according to prosecution story the accused has earlier stolen one fan from the shed in question for which the deceased chowkidar was annoyed with him. Therefore, total fans stolen from shed in question were seven out of which six fans were recovered. Therefore, the prosecution, in my view, has been able to prove beyond reasonable doubt that the recovery of the 6 fans and 18 wings was effected from the house in which the accused was living, vide memo PW8/A. This also proves one of the motives behind murder of the deceased chowkidar was theft of the ceiling fans besides fear in the mind of the accused that the deceased chowkidar might complain against him regarding one fan stolen by him earlier which fact came to the knowledge of the said deceased chowkidar notwithstanding the fact that no complaint regarding every of theft of fan by the accused was lodged by the deceased.
24. The argument on behalf of the accused that the statement of PW 14 is contradictory as at one place he has stated accused was absconding but at another point he has stated that on the secret information accused was arrested near his house on 27/8/2005 and his room was searched. It is to be noted that the incident is of 20/2182005 while the accused was arrested on 27/8/2005. Therefore, since there is no evidence that accused was coming to the shed in question after the murder of the deceased, both evidence of PW 14 are true and there is no contradiction as such. The argument on behalf of the : 21 : accused that the accused was arrested at Firozabad and not in Delhi as stated by him in his statement that he had gone since morning of 20/8/2005 there is also not convincing in the absence of any evidence led by the accused to the effect. The arrest of accused on 27/8/2005 is not only proved by PW 14 and PW 17, the IO, but also by the main witness PW19 who has last seen the accused and deceased together on 20/8/2005. The absence of the accused from the place of work is also a circumstance against him in this case. The argument on behalf of the accused that there were no proper investigation of the case or the IO has only focused upon the present accused instead of thoroughly investigating the case is also devoid of any reason. The investigation of the case seems to have been conducted properly and all necessary recoveries of weapon of offence, medical evidence and stolen fans is done and the adequate material is collected during investigation.
25. The pointing out cum seizure memo Ex PW17/A is proved by PW 17 and PW14 to show that the accused has got recovered the weapon of offence ie one iron pipe blood stained. This iron pipe is about 28 inches long and with circumference 2 cm. The blood stained pant black colour with white lines was also recovered vide memo Ex PW17/P7 and one case and key of the lock was recovered in this case vide memo Ex PW17/P10. The plas, pechkas and empty half bottle liquor were seized vide memo ExPW12/B. Although PW12 has not turned up for further examination in chief and cross examination but PW 17 the IO has proved the articles of this case vide said memos in his statement.
26. Another very important piece of evidence is of the injuries on the person of the accused which were inflicted about a week before the examination of the accused by the Doctor on 28.8.05. It is to be noted that the : 22 : murder of the deceased [ENTITY] was committed between 10.30 PM to 9 AM on 2021.8.05 and the accused was arrested by the police on 27.8.05 and was got medically examined on 28.8.05 and his MLC was prepared by the PW20 Doctor which is Ex PW20/B and shows number of injuries on the person of the accused. What is important that the injuries on the person of the accused were found by the doctor as about a week old which takes us back to the date and time when the murder of deceased [ENTITY] was committed. The number of injuries on the person of the deceased [ENTITY] and also on the person of the accused raises inference that a fight took place between them. PW 20 Dr [ENTITY] has opined in his report that injuries nos. 1 to 5 could be by teeth bite and injury no. 6 could be possible with iron rod (i.e the weapon of offence) got recovered by the accused vide memo Ex PW12/A. Despite opportunity PW20 was not cross examined by or on behalf of the accused. Further, medical report Ex PW 20/A was put to the accused in his statement U/[SECTION] [ACT] as question no. 24 and he has stated that he did not know about it.
27. The argument on behalf of the accused is that as per postmortem report eye of the deceased were shut and all injuries were on front portion, had there been scuffle or fight with the deceased his eyes would have been wide open and there would have been injuries on every part. Therefore, it seems that the murder was committed when the deceased was asleep. So the injuries on the person of the accused are not explained as to who inflicted injuries. These arguments, in my view, are devoid of any force as there is no evidence on record to show that the deceased was asleep when his murder was committed. There is no medical opinion also to the effect. Further PW 20 has conducted the postmortem examination of the deceased [ENTITY] : 23 : and has given report Ex PW20/A. But no cross examination of this witness was conducted on behalf of the accused despite opportunity given and his report remained unrebutted and unchallanged both with regard to postmortem report of deceased Ex PW20/A and MLC of the accused Ex PW20/B. No suggestion is put to the Doctor PW20 that the murder of the deceased was committed when he was asleep or more than one person committed his murder.
28. In the present case the prosecution has proved all necessary parts of the chain of circumstances. There is convincing evidence of PW19 proving the evidence of deceased and accused last seen together the recovery of weapon of offence is also effected and the recovery of the stolen fans in question is also proved which looks to be one of the motives behind murder of the deceased. The injuries on the person of the accused and its non explanation by the accused is also an important piece of evidence connecting accused with the crime, due to reasons given before. Therefore, [ENTITY]'s case (supra) helps the prosecution rather than accused. In [ENTITY]'s case (supra) it is emphasized that the time gap in between the facts when the accused and deceased were found together alive and when the accused was found murdered is important when this time gap is short. Although if the time gap is long then also there may be possibility of involvement of the accused in the crime depending upon facts and the circumstances of the case. However, if the time gap, when the accused and deceased were last seen and detection of murder of the deceased is short then it is an important piece of evidence of last seen with the deceased against the accused. In the present case the accused and deceased were last seen in the night of 20.8.05 and in the morning of 21.8.05 the deceased [ENTITY] was found murdered. Therefore, [ENTITY]'s case also does not help : 24 : to the accused.
29. In [ENTITY]'s case(supra) the time gap between the evidence of last seen of accused and deceased and the recovery of dead body was 10 days so the circumstance of last seen together was not considered important for conviction of the accused. While in the present case this time gap is less then one day as, on the night of 20.8.05 the accused and deceased was seems together and in the next morning the deceased [ENTITY] was found murdered. Therefore, [ENTITY]'s case is distinguishable on the facts and is in applicable to the present case.
30. In [ENTITY] and [ENTITY]'s case, it is emphasized that if the false plea of defence is taken by the accused the same does not prove the guilt of the accused though it may be an additional circumstance against him in the chain of circumstantial evidence. In the present case the accused has taken plea that he was not present on the factory on the day of incident but he has not prove this fact by giving evidence nor he has extracted from the prosecution witnesses that he was not present on the factory on the day of incident. Similarly his non explanation of injuries on his person and other incriminating circumstances and his false explanation regarding absence from factory on fateful day is additional circumstance against him to the chain of circumstantial evidence proved by the prosecution. Therefore, [ENTITY] and [ENTITY]'s case (supra) do not help the accused. It is not a case where the accused is liable to be convicted on the basis of false plea and the prosecution has not been able to prove the chain of circumstantial evidence against him due to the reasons given before. Therefore, these two citations relied upon on the false : 25 : case do not help to the accused.
31. [ENTITY]'s case (supra) is distinguishable on facts, in that case the accused had given a explanation that he sent the deceased girl back to the village in a truck and this explanation of accused was found plausible by the Hon'ble Supreme Court. These facts are not present in the present case, therefore [ENTITY]'s case (supra) also does not help to the accused.
32. In view of my above discussion, prosecution has been able to prove its case against the accused beyond the shadow of reasonable doubt. Accused is held guilty and convicted under [SECTION] [ACT].
ANNOUNCED IN OPEN COURT ( [ENTITY] ) DATED: 08.04.2008 ADDL. SESSIONS JUDGE NEW DELHI : 26 : IN THE COURT OF SHRI [ENTITY] ADDITIONAL SESSIONS JUDGE NEW DELHI [PRECEDENT] s/o Sh [ENTITY] r/o H. No 593A/2 Ward No.2, Mehrauli, New Delhi Permanent address: Village Bijauli, PS Vah, Distt Agra, UP. Police Station: Okhla Industrial Area Under [SECTION] [ACT] ORDER ON SENTENCE
I have heard Ld Additional Public Prosecutor for the state, Ld counsel for the convict on the question of sentence.
It is argued on behalf of the convict that the present convict is not a previous convict and is not involved in criminal case. He is a poor person and sole bread earner of the family with dependent wife and parents. It is also argued that convict was tortured during police custody and cannot properly walk.
No previous conviction is alleged against the convict and keeping in view the fact that the prosecution case is based on circumstantial evidence and in view of the facts and circumstances of the case, this case cannot be treated as one of those cases which fall within the category of rarest among rarest case. So the award of death penalty is not called for in this case.
Therefore, Convict is sentenced to Life Imprisonment with fine of Rs 200/ in default of payment of fine he shall undergo SI for Two Months.
File be consigned to record room.
: 27 : ANNOUNCED IN OPEN COURT ( [ENTITY] ) DATED: 11.04.2008 ADDL. SESSIONS JUDGE NEW DELHI