Delhi High Court
Riken Alias Diken vs State on 21 October, 2011
Author: Manmohan Singh
* THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 21.10.2011
+ CRL. A.747/2010
Riken alias Diken .........Appellant
versus
State ..........Respondent
+ CRL. A.748/2010
Deepak .........Appellant
versus
State .........Respondent
+ CRL. A.766/2010
Samunder .........Appellant
versus
State ..........Respondent
Advocates who appeared in this case:
For the Appellants : Ms. Anu Narula, Adv.
For the Respondent : Ms. Richa Kapoor, Addl. Standing Counsel for the State.
CORAM:-
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether Reporters of local papers may be allowed to
see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in Digest? Yes
CRL. A. 747/2010, CRL. A. 748/2010, CRL. A.766/2010 Page 1 of 44
MANMOHAN SINGH, J.
1. These three appeals have been filed by the appellants,
namely, Riken @ Diken, Deepak and Samunder under Section 374(2) of
the Code of Criminal Procedure against the common judgment dated
19.02.2010 and the order on sentence dated 25.02.2010 by which the
Additional Sessions Judge (West), Tis Hazari Courts, Delhi in S.C.
No.111/1/08 convicted them under sections 302/201/34 IPC and
sentenced them to rigorous imprisonment for life and to pay a fine of
Rs.5000/- and in default, to undergo simple imprisonment for six
months.
2. The main charge framed against all the three accused on
23.3.2005 was that all of them on 6.6.2004 at KM Pole No.7/29 Up
railway track, near Railway Crossing, Gate No.5 Ram Pura, Delhi within
the jurisdiction of PS Railway Sarai Rohilla with common intention to
commit the murder of Ramesh, with intent to cause his death,
committed the offence punishable under Section 302 with read with
Section 34 of IPC.
3. The case of the prosecution
(i) That on 07.06.2004 a telephonic message was received from
Sub-Station Shakur Basti, that a dead body of a male person is
lying on the railway track, and the said information was endorsed
vide DD No. 6 dated 07.06.2004. On receipt of this information,
PW-14 ASI Sarabjeet Singh of GRP P.S. Sarai Rohilla, along
with other police officials reached at Pole No. 7/29 near Rampura
platform No. 5, where the dead body of a male person was found;
(ii) That the age of the deceased was about 30 to 35 years, height
5.6‟‟, wheatish complexion, and face was round. There were
injuries on the head above the right ear, multiple injuries on head,
right shoulder was broken and there were black spots around the
neck. The other Senior Police officials also reached the spot.
Blood stained stones and earth control stones from around the
head and feet of the dead body were collected and deposited in
malkhana after sealing with the seal of SS and were taken into
possession vide memo EX-PW14/B.
(iii) That the deceased was wearing light blue shirt, white vest, light
chocolate colour pant on which the mark of "Prince Tailors, Singh
Market Maner" was affixed. There were clay and blood stains on
the shirt of the deceased due to rain.
(iv) That the police recorded the statements of Badri, Abdul Hussain,
Jugal Kumar Rai and Jitender Rai. Passersby were also
interrogated, but, the identity of the body could not be established
on that day neither the reason of death could be established. The
dead body was kept in P.P. Kishan Ganj for identification and
later on shifted to Subzi Mandi Mortuary.
(v) That the SSP, Patna, Bihar and SHO P.S. Maner were contacted
through wireless and other authorities were also contacted
through PCR, for the identification of the dead body.
(vi) That thereafter, on 11.06.2004, the brother of the deceased, PW-8
Jitender Rai came to the P.S. Sarai Rohilla along with his cousin
Dinesh and his younger brother Tarkeshwar, where PW-14 ASI
Sarabjeet Singh showed him a photograph of the deceased which
he identified and said that the dead body was of his brother
Ramesh Rai.
(vii) That the Police took them to the mortuary Sabzi Mandi and
showed them the dead body, and they all identified the dead body
to be of Ramesh Rai.
(viii) That Police recorded their statements. PW-8 Jitender Rai, told the
police that they have enmity with Deepak, Riken @ Diken and
their uncle Samunder and Shailesh and that he has full confidence
that Deepak, Riken @ Diken and their uncle Samunder have
killed his brother to take revenge. He told the police that on
several occasions they have had quarrels with the said persons in
their village and about 2 years ago, a quarrel had taken place
between his deceased brother Ramesh and accused Deepak at
Rohini and Deepak had caused a brick injury on the nose of the
deceased, on which a case was registered against Deepak at P.S.
Rohini and he was even arrested in this case. Thereafter, his
brother went to their native village on the occasion of Holi, and
later on he came to know that his brother was badly beaten even
in the village by the accused persons. The Panchayat was called
and the Panchayat imposed a fine of Rs. 1000/- on accused
Deepak as he had pleaded guilty. Thereafter the deceased and all
the accused persons came back to Delhi and the accused persons
told him that they had felt such disrespect in the village and now
they will not spare Ramesh (deceased) and stated "Gaon mey
hamari bahut Bezti ho gai hey or ab hamney kafan bandh liya hey
or ab hum Ramesh ko chodengay nahi".
4. On 11.06.2004, Dr. K. Goel (PW-2) conducted the
postmortem on the body of the deceased. The cause of death was
asphyxia consequent upon ligature strangulation.
5. On 12.06.2004, the case was handed over to PW-27 Insp. Om
Prakash Sharma who prepared the ruqqa and got the case registered vide
FIR No. 36/2004 (EX-PW1/A). He went to the place of occurrence and
prepared the site plan. Then he went to the dairy where the cousin of the
deceased namely Dinesh was working and examined him under section
161 Cr. PC. During the examination Dinesh raised suspicion of the
involvement of all the three accused persons. Thereafter, they went to
Naharpur in search of the accused persons and apprehended accused
Deepak from the dairy of Nahar Singh. On being interrogated, Deepak
made a disclosure statement. Thereafter, they went to Britania Chowk,
Ring Road in search of other accused persons and arrested Samunder
and Riken.
6. The accused persons made disclosure statements and led the
police party to H. No. WZ14, Golden Park, Punjabi Bagh, the owner of
the said house, namely PW-7 Ranjit Singh, was also called there and
from there blood smeared soil, earth control along with other material
like blood smeared brick, which had some hair stuck to it were
recovered, all these items were sealed and with the seal of OPS and
seized vide memo Ex-PW7/B. Insp. Om Prakash Sharma (PW-27)
prepared the site plan of that place Ex-PW27/C.
7. On pointing out of the accused Riken, a blood smeared rope
and piece of blood stained floor and other earth control were recovered
from the way which goes to the railway track. Then the accused persons
led the police party to a horse shed/tabela and got one red coloured
T-shirt and a shirt recovered, and the same were also seized. Insp. Om
Prakash Sharma (PW-27) prepared the site plan of each place.
8. After the committal proceedings were completed, charges
were framed against the accused persons under section 302/201/34 IPC.
The accused persons pleaded not guilty and preferred to contest the
case.
9. In order to prove its case, the prosecution examined 27
witnesses out which nine were public witnesses and they were PW-3
Dinesh, PW-4 Lalit Kumar, PW-5 Smt.Shashi Sharma, PW-7 Ranjeet
Singh, PW-8 Jitender Rai, Pw-9 Vinod Rai, PW- 12 Shivaji Rai, PW-15
Kailash Singh and PW-16 Jitender Kumar.
10. In the statements under Section 313 Cr.P.C. all the three
appellants denied the allegations against them. They stated that they are
innocent and that they had been falsely implicated.
11. After examining the evidence on record and considering the
arguments of the parties, the learned ASJ in his judgment held that there
was positive evidence against the accused persons which brought the
inference that the proposed accused are the only perpetrators of the
crime and that they committed the murder of Ramesh Rai with the
ulterior motive to take revenge. Thus, he convicted all the three accused
persons for the offence punishable under section 302/201/34 IPC.
12. The appellants, being aggrieved by the said judgment and
order on sentence, have filed the present appeals.
13. Learned counsel for the appellants have raised common
grounds of appeal, some of the relevant ones are as follows:
I. The Learned Trial Court has erred in not appreciating that the
dead body was identified from a lable/sticker of a Tailor affixed
on the pant. Thereafter the address of his house was traced.
However, no evidence which could give clue of the name or the
address of the deceased or the said tailor has been examined.
II. The Learned Trial Court has erred in not appreciating that
admittedly the deceased had gone to have the dinner in the
company of some „Shambhu‟ who was not implicated or
produced as a witness.
III. The independent public witnesses have not supported the case of
the prosecution.
IV. The Learned Trial Court has erred in not appreciating that the
possibility of the deceased having met with an accident cannot
be ruled out as the deceased was admittedly drunk and the
weather was bad and he was apparently trying to jump the
railway track.
V. There are material contradictions on all important aspects- arrest
of the accused, recovery etc. The inconsistencies, discrepancies
and contradiction in their statements make the prosecution case
highly improbable.
VI The alleged CD relied upon by the prosecution is not admissible
in Law.
14. Since there is no eye-witness to the murder, the case revolves
around the circumstantial evidence of last seen and the recovery of the
material as per the case of the prosecution.
15. The prosecution in order to prove its case relied upon the
testimonies of following witnesses who deposed as follows:
Rukka & FIR
a) PW1 HC Savita deposed that she was the Duty Officer on
12.6.2004 at P.S. Sarai Rohilla and got registered the FIR
at Sr. No.36 for the offence u/s 302/201 IPC. Copy of the
same is Ex.PW1/A. She made endorsement about the
registration of the case on the rukka vide Ex.PW1/B. She
also brought the original DD register No.12/B regarding
registration of the case.
Medical and Scientific Evidence
b) PW2 Dr. K. Goel conducted the post mortem on the body
of Ramesh S/o Mala Rai on 11.6.2004 and as per his
report Ex. PW-2/A the cause of death was asphyxia
consequent upon ligature strangulation. Injuries No.1 to 5
were ante mortem. Injuries No.1 to 4 were caused by
blunt force impact. Ligature marks i.e. injury No.5 was
caused by some hard flexible material. Injury No.6 was
postmortem in nature and was consistent with pressure
over wrist to fasten them. Ligature pressure over neck
was sufficient to cause death in ordinary course of
nature. Mode of death was homicide. Time of death was
about four and a half days. In his cross, PW2 stated that a
ligature mark present around the neck was caused as
ligature injury by some ligature material. Blunt force
injury means the injury caused by such weapon of surface
which is having no sharp edges. Injury number 5
mentioned in Ex.PW2/A was caused by some hard
flexible material, which means a material like rope, some
electric wire and other soft material. The skull bones
were intact but there was one lacerated wound on the right
temporal region. This was caused by blunt force impact.
Semi digested food could not be described. Alcohol like
smell was coming from the stomach. Death was not
possible by poisoning.
Public Witnesses
c) PW8 Jitender Rai identified the dead body of deceased
from photographs showed on 9.6.2004 when he came to
Delhi from Ambala. Thereafter on 11.6.2004 he
alongwith his cousin Dinesh and younger brother
Tarkeshwar identified the deceased at Subzi Mandi
Mortuary and also told the police that Deepak, Riken @
Dikan and their uncle Samunder and Shailesh had enmity
with the deceased.
d) PW 3 Dinesh Rai also deposed regarding the enmity of
the accused Deepak as he had earlier attacked deceased
Ramesh Rai at the village and Delhi. Both hailed from
the same village in Bihar. Panchayat had earlier fined
Rs.1,000/- on Deepak. The case was registered at PS
Rohini Sector-8 on the complaint of Ramesh Rai
deceased. He identified the deceased Ramesh initially
from his pant thereafter at Subzi Mandi Mortuary. He
suspected the hands of all the three accused persons in
the murder of Ramesh as they earlier threatened Ramesh
to kill him since Deepak was made to pay a fine by the
Panchayat.
e) PW9 Vinod Rai in fact corroborated the version of PW3
Dinesh Rai and PW8 Jitender Rai by deposing that on
17.3.2002 a panchayat was held in village Jivrakhan Tola
in the matter of Deepak, Samunder, Riken and deceased
Ramesh as they all working in Delhi and quarrel took
place between deceased Ramesh on one side and Deepak,
Samunder and Riken from other side at Delhi. Thereafter,
they went back to the village Jivrakha Tola. A Panchayat
was held at the house of Mukhia Kailash Singh and he
headed the said Panchayat as Panch. Other members of
the Panch, besides him, were Shivji Rai, Kalshwar Singh,
Loknath Rai and Ramesh Rai. On 19.7.2004, one SI of
Delhi Police along with two officials reached their
village and they were called to the PS Maner. He told the
facts of the Panchayat stated above and handed over the
Panch Faisla to the police officer which was seized vide
memo Ex.PW9/A. The Panch Faisla Ex.PW9/B bears his
name at point A.
f) PW 12 Shivji Rai who was also a member of the
Panchayat made a deposition similar to that of PW 9
Vinod Rai and identified his thumb impression on
Ex.PW9/B. PW 15 Kailash Singh being the Pradhan of
the village also headed the Panchayat as Panch on
17.3.2002 wherein he decided the issue of quarrel
between deceased Ramesh Rai and Deepak by imposing
fine of Rs.1000/- on Deepak and Rs.51/- on deceased
Ramesh Rai. The Panch Faisla was reduced in writing
and handed over to police vide Ex.PW9/B, which bears
his signatures at point C.
g) PW-7 is an independent witness, who owned house
No.WZ 14, Golden Park, Rampura, Delhi. He deposed
that he had not given any room on rent to Shambhu but,
he had given his Milk Dairy to Shambhu on contract
basis. He stated that on 12.06.2004, he was called by the
police at Golden Park where all the accused were present
and he identified them in Court. He stated that he was
asked by the police to open the lock and he opened the
shutter of the room. In his presence, police had lifted the
blood from near the water tank, blood stained plaster and
earth control from the spot and took them into possession
by making a recovery memo Ex.PW7/A which bore
signature at point A. One blood stained piece of floor and
earth control were also lifted from near the wall of water
meter vide memo Ex.PW7/B which also bore his signature
at point B. Thereafter, the accused took the entire team
near the Railway Track from where the blood stained
earth and blood were lifted and one rope was also taken
into possession and seized vide memo Ex.PW-7/C. One
blood stained shirt and one T-shirt were also recovered at
the instance of the accused persons from a Chhappar.
The earth control was also lifted from near the TV Tower
Polls vide memo Ex.PW-7/E.
Last Seen
h) PW 5 Smt. Shashi Sharma is the wife of PW 4 Lalit
Kumar and also deposed that on 6.6.2004 at about 8-8.30
pm Ramesh, had told her that he was going to Rampura to
attend a party. Thereafter, Ramesh never returned to the
house and on 12.6.2004 she came to know that Ramesh
had died. No person of the name of Samunder, had come
to their house in the afternoon to meet Ramesh on
6.6.2004, though before Police while recording her
statement under Section 161 Cr.P.C., she stated that on
06.06.2004 in the afternoon, Samunder had come to their
house to meet Ramesh.
i) PW 4 Lalit Kumar @ Bindu Pehalwan deposed that the
deceased Ramesh Rai was working at his dairy about 2-3
years prior to his death on 6.6.2004 he had told his wife
that he was going to take meal at some place. Thereafter,
the deceased did not return to his work. Later on he came
to know that the boy had died. He was declared hostile
by Public Prosecutor and in cross examination of APP he
denied that deceased Ramesh might have gone to the
house of Shambhu for attending the party or on the next
day, he came to know that Ramesh has been murdered and
his dead body has been found near the Ram Pura Railway
crossing.
Testimonies of other witnesses
j) PW 10 Ct. Sunder Lal deposed that he alongwith
Inderjeet Singh reached at the spot at Golden Park,
Rampura, Delhi where all the three accused were with
police officials and accused persons pointed out the place
of incident. At the instance of IO Insp. Om Prakash he
took eight photographs of the place of incident. He also
proved the negatives of the photographs vide Ex.PW10A1
to A8 and print photographs vide Ex. PW10/A9 to
PW10/A16.
k) PW12 D.S. Meena, Station Superintendent, Railway
Station, Shakur Basti had deposed that on 7.6.2004 the
passenger train, Delhi Firozpur 341 which used to go
from Old Delhi Railway Station to Firoz Pur via Shakur
Basti Railway Station. On that day at about 7.25 am the
driver of the said train informed him that a dead body is
lying near railway crossing Rampur. 7/29 km of up track.
He informed to HC Rajmal (In Charge of P.P. Kishan
Ganj) GRP at about 7.30 am.
l) PW 13 Ct. Daya Ram deposed that he joined the
investigation alongwith Insp. Om Prakash, ASI Sarabjeet
Singh, HC Hawa Singh and Ct. Ranbir Singh and they
visited to pole No.KM 7/29, near Rampura Railway
crossing where at the instance of ASI Sarbjeet, Insp. Om
Parkash prepared a site plan and thereafter they went to
the diary of Bindu Pehlwan. Where Ms. Shashi Sharma
wife of Bindu Pehlwan @ Lalit Kumar met there, both
were interrogated regarding the case and their statements
were recorded. Thereafter at the instance of accused
Deepak they reached Chowk Britania Ring Road where
two persons were standing at the Ring Road towards JJ
Colony, Shakur Pur, they were pointed out by the
accused Deepak towards Samunder and Riken @ Dikan.
Accused Samunder was arrested vide memo
Ex.PW13/D and accused Riken was arrested vide memo
Ex.PW 13/E. The personal search of accused Riken was
conducted vide memo PW13/F and of accused Samunder
vide Ex.PW13/G. They were also interrogated by the IO
and their disclosure statements were recorded vide
Ex.PW13/H and J. Thereafter they all went to WZ-14
Golden park, Rampura, Delhi. The landlord of that house
Ranjit Singh Khari was also present over there and he
has also joined the investigation. Photographer Ct.
Sunder Lal and Videographer HC Inderjeet were called at
the spot on the direction of Investigating Officer Insp.
Om Prakash Sharma. All the three accused persons
pointed out the place of incident and pointing out
memo was prepared on their instance vide Ex.PW13/K.
On the direction of the IO the photography and
videography of the place of incident was done. From the
spot IO lifted blood stained soil and earth control sample
and same were sealed with the seal of OPS in the
pullanda and taken into custody vide memo Ex.PW7/A.
At the instance of Deepak, one brick having blood stains
as well as piece of the earth and earth control sample
were lifted and sealed in pullanda with the seal of OPS
and seized vide memo Ex.PW7/B. All the three accused
took the police party to the railway track near a narrow
path called „Pagdandi‟ and accused persons disclosed that
they kept a dead body there for a while. So, IO lifted the
blood smeared soil and seized vide memo Ex.PW7/A.
When they went forward by 15 paces by the side of the
railway track there was a kiker tree at the spot, accused
Riken pointed out one rassi/rope which was handing on
the said tree and same was seized vide memo Ex.PW7/B.
The accused persons then took them to the place where
they allegedly threw the dead body near a pole KM7/29.
The pointing out memo was prepared by the IO and same
is Ex.PW13/L. Thereafter, they against came behind the
house WZ-14, Golden Park, Rampura, Delhi and accused
Samunder and Deepak handed over one polythene bag
containing one dirty shirt and a red colour T-Shirt having
blood stains after taking out the same from
Mezzanine/parchati from the „pashuo ka Tabela‟ (the
place where the animal used to be kept) and the same
were sealed in pullanda with the seal of OPS and taken
into possession vide memo Ex.PW13/M. The pointing
out memo was prepared where the dead body was kept
for a while and the same is Ex.PW13/N and pointing out
memo of kiker wala tree is vide Ex.PW13/P. The seal
after use was given to Choudhary Ranjit Singh Khari and
they all came back to Police Station. The deposition of
PW13 Ct. Daya Ram had been corroborated by PW14
ASI Sarabjit Singh, PW 20 Ct. Sukhram, PW 24 HC
Hawa Singh, PW 25 Ct. Ranbir Singh and PW 27 Insp.
O.P. Sharma in the deposition of and all of them have
also proved the documents prepared during the course of
investigation.
m) PW-14 ASI Sarabjit Singh deposed that on 07.06.2004, he
received DD No.6 which is Ex.PW-14/A and he along
with Head Constable Hawa Singh, Constable Sukh Ram
went to the spot, i.e., Pole KM 7/29, where he found that
on the railway track one dead body of male lying between
the railway track. He inspected the dead boy and got it
photographed. He found that there was an injury near the
left ear of the dead body and there was some ligature mark
on the neck of the dead body of black colour. Due to rain
in the night, the said ligature mark was not visible
properly. He inspected the clothes of the dead body and
there was sticker affixed on brown coloured pant in the
name and style of Prince Tailor, Singh Market, Muner.
He also lifted the blood smeared stones and earth control
stone from the spot and took them into custody sealing the
same vide Ex. PW-14/B. He also seized the hair from the
brown coloured underwear make Amul Gold at the
instance of crime team which is Ex.PW14/C. Thereafter,
Head Constable Hawa Singh was sent to Muner, Bihar,
with the pant of the deceased for the identification of the
dead body. Head Constable Hawa Singh came to Delhi
on 10.06.2004 and he made his rival entry. Thereafter,
the brother of the deceased was called and they dead body
was identified. He also recorded the statement. He also
recorded the statements of Badri, Abdul Hassan, Jugal
Kumar Rai and Jitender Rai. The same are Ex.PW-14/E,
Ex.PW-14/F, Ex.PW-14/G and Ex.PW-14/H. He
conducted the inquest proceedings in respect of dead body
and prepared the form No.25.35, the same is Ex.PW-14/J.
Brief facts are Ex.PW-14/K and identification statement is
Ex.PW-14/L. The dead body was handed over to brother
Jitender Rai and its last rites vide receipt Ex.PW14/M.
He made an application for getting post mortem to the
Medical Superintendent, Aruna Asaf Ali Hospital. The
application is Ex.PW-14/N. All the memos bore his
signatures. At his instance, Inspector Om Prakash
prepared the site plan of the place of incident, i.e., railway
track.
n) PW 17 Ct. Jaivir Singh is the Special Messenger who
delivered a copy of the FIR to Ld. Ilaka Magistrate and
Senior Officers.
o) PW 18 Inspector Davinder Singh proved the scaled site
plan of both the sites vide Ex. PW18/A.
p) PW 19 SI Ajay Kumar, stated that on receiving the
information he reached the railway track near railway
crossing Rampura and found one dead body on the
railway track having multiple injuries. He prepared his
report and one copy was handed over to the IO Insp. Om
Prakash Sharma.
q) PW21 HC Devender Kumar being MHC (M) deposed that
on 7.6.2004 ASI Sarabjit Singh deposited two sealed
parcels containing hair, earth control and blood stained
stones and soil and he made entry in register No.19 of
Malkhana at Sl. No.272 vide Ex. PW21/A. On 10.6.2004
HC Hawa Singh deposited one pullanda containing one
pant of deceased in the Malkhana and made the entry at
Sl. No.273 the copy of same vide Ex.PW21/B. PW 21
further deposed that on 11.6.2004 ASI Sarabjit again
deposited one sealed parcel with the seal of hospital
alongwith sample seal belonging to the deceased
alongwith visra box and he made entry at Sl. No.274 and
the copy of same Ex.PW21/C. On 12.6.2004 Insp. Om
Prakash deposited five sealed parcels in the Malkhana
alongwith personal search of the accused persons. He
made the entry in this respect at Sl. No.275 and
photocopy of the same is Ex.PW21/D. The case property
were sent to FSL Rohini on 14.7.2004 and the remaining
one pullanda sent on 19.7.2004 vide RC No.49/21 and
55/21 respectively. The RC register and photocopy of
the road certificate No.49/21 is Ex.PW21/E containing
four pages.
r) PW 22 HC Rajmal Singh was posted as Daily Diary writer
at P.P. Kishanganj and he deposed that on 7.6.2004 at
about 7.30 am, D.S. Meena informed that the driver of
train No.341 Passenger, Delhi to Ferozpur informed about
the dead body lying at Pole KM7/29 and the information
was recorded vide DD No.6 and the copy of the said DD
was entrusted to ASI Sarabjeet Singh who alongwith HC
Hawa Singh and Ct. Sukhram went to the spot. On
10.6.2004 when he was doing the duty of DD writer at
the said PP. Investigating Officer seized one pant of the
deceased against the seizure memo Ex.PW22/A. The said
pullanda was later on deposited in the Malkhana and
copy of DD entry vide Ex.PW14/D.
s) PW 23 Ct. Gangabir Singh deposed that on 12.6.2004 at
about 3 pm Duty Officer WHC Savita handed over to him
the copy of FIR No.36/04 alongwith the tehrir which he
handed over to the Addl. SHO O.P. Sharma of P.S. Sarai
Rohilla at about 3.30 pm at railway track near KM pole
No.7/29 Rampura phatak where Insp. O.P. Sharma was
already present alongwith ASI Sarabjit Singh, HC Hawa
Singh, Ct. Ranbir and Ct. Daya Ram.
t) PW 26 Ct. Vijay Singh proved the copy of the FIR
No.32/02 P.S. Rohini dated 17.1.2002 u/s 341/323/34
IPC on the instruction of MHC(R) vide copy of FIR
Ex.PW26/A.
u) PW-27 Inspector Om Prakash Sharma almost
corroborated the statements of PW-7 and PW-13. He
deposed that after going through the documents, he made
his endorsement on D.D. No.6 which is Ex.PW-27/A. He
prepared the ruqqa and got the case registered vide FIR
Ex.PW-1/A. He also prepared the site plan of the place
Ex.PW-27/B. He stated that the deceased was working at
Shakur Basti with Lalit @ Bindu Pahalwan, PW-4, who
was running a dairy. At the dairy of Lalit @ Bindu
Pahlwan, he and his wife Smt. Shashi Sharma were
present. They were examined under Section 161 Cr.P.C.
He also prepared the site plan of that place which is
Ex.PW-27/C. The site of the place near Kikar tree is
Ex.PW-27/D. He reiterated in his statement that all the
accused led the police party including public persons to a
stable behind house No.14, Golden Park, Rampura, Delhi,
by saying that the clothes were hidden by them at that
place. Thereafter, the accused Samunder took out one
torn shirt having blood stains on both the shoulders on
front and back sides. Accused Deepak took out one T-
shirt from the place of underneath a plastic cover above
the grass roof. These were seized vide memo Ex.PW-7/D.
On 24.07.2004, he sent 18 sealed parcels to FSL,
Rohini, through constable Ranbir vide RC Ex.PW-21/E.
On that day, 17 parcels were deposited and one parcel was
returned back which was sent on 19.07.2004 to FSL,
Rohini vide RC Ex.PW-27/F through Constable Ranbir.
The parcel was the viscera box. The results of FSL were
received which are Ex.PW27/G, Ex.PW27/H, Ex.PW27/I
and Ex.PW27/J.
16. Ms. Anu Narula, the learned counsel appearing on behalf of
the accused, has made the submissions that there are various material
contradictions on important aspects regarding the recovery of the
articles. The said inconsistencies, discrepancies and contradictions
made in statements of the witnesses make the prosecution case highly
improbable. The details of the same are given as under:
a) As per the prosecution case, the rope was used in
strangulating the deceased and the same was recovered at
the instance of the accused persons which was also used
for committing the murder but not rope was shown to
PW-2 Dr. K. Goel nor was his opinion sought by the
Investigating Officer.
b) PW-3 Dinesh Rai in his examination-in-chief stated that
on 10.06.2004 police had shown him one blood stained
pant and he identified the pant as having belonged to
deceased Ramesh, his cousin. He suspected the hands of
all the three accused persons as they earlier threatened the
deceased to kill him. He did not give the date, month or
year when such threat was extended or did not state as to
whether any complaint was lodged against the alleged
threat. He did not sign the Panchayat‟s Faisla, rather his
conduct shows that he was interested in giving the
deposition in rage and to take revenge by implicating the
accused.
c) PW-4 Lalit Kumar @ Bindu Pehalwan did not support the
case of the prosecution and denied that Ramesh had told
his wife Shashi that he was going to Rampura to attend a
party and he would do the work on the next date.
Therefore, chain of the prosecution was totally broken.
d) PW-6 Head Constable Inderjeet Singh stated that on
12.06.2004, he along with Constable Sunder Lal,
photographer, had gone to Golden Park, Rampura, Delhi.
Investigating Officer was also present there. But during
his cross-examination, he admitted that the video clip did
not show witness Ranjeet Singh bringing a hammer, the
polythene envelope and chair or charpai nor he stated
anything against the accused persons. The chair and the
charpai were not sealed in his presence.
e) PW-13 Constable Daya Ram did not support the case of
the prosecution, as in his cross-examination, he stated that
he could not say if there was a constructed room and
signed all the four papers prepared by the Investigating
Officer.
f) Shambhu was not cited as a witness so as to prove that the
deceased attended the party and other accused persons
were also present there. The accused Samunder and
Riken were not named anywhere either in the Panchayat
Faisla or to the alleged conspiracy to kill the deceased
Ramesh. There was no threat whatsoever from the
accused Samunder and Riken @ Diken nor any of the
witnesses stated except the disclosure statements of
accused persons.
In nutshell, she argued that in the entire evidence produced
by the prosecution, there is no specific allegation against the accused
Samunder nor is there any allegation against him that what specific
threat was ever extended to the deceased by him and in whose presence
and when.
17. Ms. Richa Kapoor, the learned counsel appearing on behalf
of the State, has argued that the prosecution has examined all the
material witnesses who had completed the chain of evidence in all
respects. She stated that the public witnesses Dinesh Rai, Jitender Rai,
Shivaji Rai and Kailash Singh have proved that there was a strong
enmity between the accused persons and the deceased and the accused
persons had a grudge against the deceased Ramesh. Not only that,
earlier also they assaulted the deceased in January 2002 at Naharpur,
Sector 7, Rohini, in village at the occasion of Holi. As the fine was
imposed upon the accused Deepak by the Panchayat which was
organized by the village head Kailash Singh, PW-15, therefore, the
accused felt disrespect in the village and according to the statement of
PW-8 Jitender Rai, they tied the „kaffan‟ on their heads to take the
revenge from the deceased Ramesh.
Ms Richa Kapoor had also argued that all the accused
persons had pointed out places of incidents, place of recovery and the
place from where the dead body was recovered as well as the
incriminating material including the rope which was used for
strangulating the deceased and the same was recovered at the instance of
the accused persons for committing the murder. Although during the
course of arguments, she admitted that the rope was not shown to PW-2
Dr. K. Goel nor was his opinion sought. She argued that apart from the
deposition of public witnesses, there is medical and scientific evidence
which proves the guilt of the accused persons who had the motive to
commit the murder of the deceased. Therefore, no interference in the
impugned judgment is called for and all the three appeals are liable to be
dismissed.
18. It is settled law that when a case of the prosecution is based
on circumstantial evidence, such evidence must satisfy three tests.
Firstly, the circumstances from which an inference of guilt is to be
drawn, are to be cogently and firmly established. Secondly, those
circumstances should be of a definite tendency of unerringly pointing
towards the guilt of the accused. Thirdly, the circumstances, taken
cumulatively, should form a chain so complete that there is no escaping
the conclusion that within all human probability the crime was
committed by the accused and none else. In other words, the
circumstances should be incapable of explanation on any reasonable
hypothesis save that of the accused‟s guilt. (See Hanumanth Govind
Nargundkar & Anr. vs. State of M.P., AIR 1952 SC 343; Chandmal
and Anr. vs. State of Rajasthan, AIR 1976 SC 917, and Sharad Birdi
Chand Sarda vs. State of Maharashtra, (1984) 4 SCC 116)
19. The accused can be convicted on circumstantial evidence,
provided the links in the chain of circumstances connects the accused
with the crime beyond reasonable doubt, as per the decision in case
titled as Vijay Kumar Arora vs. State, (2010) 2 SCC 353 (para 16.5).
20. As far as the hostile witness is concerned, no doubt, in the
present case, PW-4 Bindu Pahalwan @ Lalit Kumar was declared
hostile by the prosecution, as he resiled from his earlier statement to the
police that prior to his death on 11.06.2004 the deceased had told his
wife that he was going to take his dinner in Rampura. However, as
observed in State Vs. Ram Prasad Mishra & Anr.:
"The evidence of a hostile witness would not be totally
rejected if spoken in favour of the prosecution or the
accused, but can be subjected to close scrutiny and the
portion of the evidence which is consistent with the case of
the prosecution or defence may be accepted."
Similarly, in Sheikh Zakir vs. State of Bihar, AIR 1983 SC
911, the Supreme Court held that:
"It is not quite strange that some witnesses do turn hostile but
that by itself would not prevent a Court from finding an
accused guilty if there is otherwise acceptable evidence in
support of the conviction."
In Himanshu alias Chintu vs. State (NCT of Delhi), (2011)
2 SCC 36, the Supreme Court held that the dependable part of the
evidence of a hostile witness can be relied on. So, in view of the settled
law, the Court can rely upon the dependable part of the evidence. PW-5
Smt. Shashi Sharma is the wife of PW-4 who deposed that on
06.06.2004 at about 8-8.30 p.m. the deceased had told her that he was
going to Rampura to attend a party. The said part of the statement can
be considered by this Court.
21. As per post mortem report Ex.PW-2/A, the result of external
injuries and internal examination on the body of deceased were as
under:
"EXTERNAL INJURIES
(i) Lacerated wound 2cmX1.5cm over upper part of left
cheek about 3cm below the lateral end of left eye.
(ii) Lacerated wound 1.25X0.5cm over right angle of
mandible.
(iii) Lacerated wound 3.5X0.5cm over right temporal region.
(iv) Few pressure abrasions seen over right anterior axillary
fold.
(v) Ligature Mark. There were dark brownish coloured
slightly depressed ligature pressure abrasion marks two in
numbers running horizontally all around the neck completely
on an below the apple of adan. Both the marks were apart
each other varying in distance 0.25 to 1.75 cm at places. The
width of each mark was allowed 0.75 to 09 cm. The skin
above and below the marks was darker in colour.
(vi) There were oblique semi circular slightly depressed
marks over outer aspects of both writs, about 0.75 cm wide
showing no vital reaction on cut sections. (postmortem
injuries).
INTERNAL EXAMINATION
There was faint sub-scalp bruising over right temporal region
around injury No.3. Early changes of decomposition present
in scalp tissues. Skull bones were intact Brain matter was
soften due to decomposition.
On reflection of skin of neck there was subcutaneous and
platysmal bruising was seen underneath the ligature marks
and surrounding tissues. Deeper neck muscles were also
bruised with effusion of blood in neck-layers. Signs of
decomposition also seen in soft tissues of neck. There were
fracture - subluxation of left greater cornua of hyoid bone
and left superior horn of thyroid cartilage with massive
bruising around. Epiglottis larynx were bruised. Signs of
decomposition were seen in tracheals mucosa. There was
serosanguinous discharge seen in trachea.
All chest and abdominal viscera were intact with signs of
decomposition. Stomach contained semi digested food with
slight alcohol like smell.
22. In view of the testimony of PW-2 and report Ex.PW2/A, it is
clear that the cause of death was asphyxia consequent upon ligature
strangulation. Injuries No.1 to 5 were ante mortem. Injuries No.1 to 4
were caused by blunt force impact. Ligature marks i.e. injury No.5 was
caused by some hard flexible material. Injuries No.6 was postmortem
in nature and was consistent with pressure over wrist to fasten them.
Ligature pressure over neck was sufficient to cause death in ordinary
course of nature. Mode of death was homicide. Time of death was
about four and half days. The result of FSL was received and are
Ex.PW27/G,H,I and J. The sealed parcel remained in the custody of
MHC(M). PW21 HC Devender Kumar testified that the parcel
remained in his custody and in intact condition without any tempering
by any one before and after receiving from the FSL Rohini and parcel
sent through Ct. Ranbir PW25 and case property remained intact during
the transit. The FSL report revealed the human blood on blood stained
pieces of stone, piece of brick, blood stained cement material, piece of
jute rope, shirt. The pants, shirt blood stained pieces of stone and teeth
are of blood group „B‟ as examined by Biological Department of
Forensic Science Lab. The Physics department of FSL opined that on
chemical examination of stomach and piece of small intestine and
unidentified tissues they tested positive for the presence of ethyl
alcohol.
23. The details of description of articles contained in parcels and
results of analysis are given as under:
DESCRIPTION OF ARTICLES CONTAINED IN PARCELS
"Parcel „1‟ : One sealed cloth parcel sealed with the seal of
„SS‟ containing exhibit „1‟, marked as „A‟.
Exhibit „1‟ : Piece of stones having brown stains.
Parcel „2‟ : One sealed cloth parcel sealed with the seal of
„SS‟ containing exhibit „2‟ marked as „A-I‟.
Exhibit „2‟ : Pieces of stone described as „Earth control stone‟.
Parcel „3‟ : One sealed cloth parcel sealed with the seal of
„SS‟ containing exhibit „3‟, marked as „B‟.
Exhibit „3‟ : Piece of stones having brown stains.
Parcel „4‟ : One sealed cloth parcel sealed with the seal of
„SS‟ containing exhibit „4‟, marked as „B-1‟.
Exhibit „4‟: Pieces of stone described as „Earth control stone‟.
Parcel „5‟ : One sealed cloth parcel sealed with the seal of
„SS‟ containing exhibit „5‟, marked as „C‟.
Exhibit „5‟: Few strands of hair.
Parcel „6‟ : One sealed cloth parcel sealed with the seal of
„OPS‟ containing exhibit „6‟, marked as „D‟.
Exhibit „6‟: One pants having brown stains along with Mud.
Parcel „7‟ : One sealed cloth parcel sealed with the seal of
„OPS‟ containing exhibit „7‟, marked as „I‟.
Exhibit „7‟: A piece of brick having brown stains along with
few strands of hair.
Parcel „8‟ : One sealed cloth parcel sealed with the seal of
„OPS‟ containing exhibit „8‟, marked as „2‟.
Exhibit „8‟: Cemented material having brown stains described
as Blood stained floor and plaster pieces.
Parcel „9‟ : One sealed cloth parcel sealed with the seal of
„OPS‟ containing exhibit „9‟, marked as „3‟.
Exhibit „9‟: Cemented material having brown stains described
as „Earth control sample of floor and plaster.
Parcel „10‟: One sealed cloth parcel sealed with the seal of
„OPS‟ containing exhibit „10‟, marked as „4‟.
Exhibit „10‟: Earthy material.
Parcel „11‟ : One sealed cloth parcel sealed with the seal of
„OPS‟ containing exhibit „11‟, marked as „4A‟.
Exhibit „11‟ : Earthy material.
Parcel „12‟ : One sealed cloth parcel sealed with the seal of
„OPS‟ said to contain exhibit „12‟, marked as
„4B‟, sent in original to Physics Division of this
Laboratory for examination.
Parcel „13‟: One sealed cloth parcel sealed with the seal of
„OPS‟ containing exhibit „13‟, marked as „5‟.
Exhibit „13‟: A piece of jute rope.
Parcel „14‟ : One sealed cloth parcel sealed with the seal of
„OPS‟ containing exhibit „14‟, marked as „6‟.
Exhibit „14‟: One T-shirt.
Parcel „15‟ : One sealed cloth parcel sealed with the seal of
„OPS‟ containing exhibit „15‟, marked as „7‟.
Exhibit „15‟ : One T-shirt having brown stains.
Parcel „16‟ : One sealed glass bottle sealed with the seal of
„KLS AAA HOSPITAL SUBZI MANDI
MORTUARY DELHI‟ containing exhibit „16‟,
marked as „8‟.
Exhibit „16‟ : Two pieces of teeth having brown stains.
Parcel „17‟ : One sealed polythene bag parcel sealed sealed
with the seal of „KLS AAA HOSPITAL SUBZI
MANDI MORTUARY DELHI‟ containing
exhibit „17a‟, „17b‟, „17c‟ and „17d‟.
Exhibit „17a‟: One damp foul smelling shawl having darker
stains.
Exhibit „17b‟: One damp foul smelling shirt having darker
stains.
Exhibit „17c‟: One damp foul smelling banian having darker
stains.
Exhibit „17d‟: One damp foul smelling underwear having darker
stains.
RESULTS OF ANALYSIS
1. Blood was detected on exhibits „1‟, „3‟, „6‟, „7‟, „8‟, ‟13‟,
„15‟, „16‟, „17a‟, „17b‟, „17c‟ & „17d‟.
2. Blood could not be detected on exhibits „2‟, „4‟, „9‟, „10‟,
„11‟, & „14‟.
3. Semen could not be detected on exhibit „5‟.
4. On the basis morphological and microscopical
characteristics the hair found in exhibits „5‟ & „7‟ were
found to be human in origin. However no further opinion is
offered from this Laboratory.
5. Regarding query No „16‟ based on Physical and
morphological characteristics the teeth found in exhibit
„16‟, were found to be human (i.e. incisior and canine
teeth).
24. As per the report of the portion of exhibits were examined by
using various serological techniques, the analysed results of which are
given as under:
Exhibits Species of ABO
Origin Group/Remarks
Blood stained Human No Reaction
„1‟ Blood stained pieces
of stone
„2‟ Pieces of stone No Reaction ---
(Control)
„3‟ Blood stained pieces Human „B‟ Group
of stone
„4‟ Pieces of stone No Reaction ---
(Control)
„6‟ Pants Human „B‟ Group
„7‟ Piece of brick Human No Reaction
„8‟ Blood stained Human No Reaction
cemented material
„9‟ Cemented material No Reaction ---
(Control)
„10‟ Earthy material No Reaction ---
„11‟ Earthy material No Reaction ---
„13‟ Piece of jute rope Human No Reaction
„15‟ Shirt Human „B‟ Group
„16‟ Teeth Human „B‟ Group
„17a‟ Shawl No Reaction ---
„17b‟ Shirt No Reaction ---
„17c‟ Banian No Reaction ---
„17d‟ Underwear No Reaction ---
25. A) Blood Group of the deceased
As per the seizure memo Ex.PW22/A, the pant of the
deceased and as per memo Ex.PW27/E, two teeth of the deceased in
glass bottle, and also one damp foul smelling shawl, shirt, baniyan and
underwear having darker stains as exhibits 17a to 17d were sent to FSL
for examination. As per the FSL report, the teeth were of human origin
having "B" blood group. Similarly, the pant of the deceased contains
the blood stains of the same group "B". As per the FSL report, the
blood was detected from exhibits 17a to 17d, i.e. shawl, shirt, baniyan
and underwear of the deceased.
B) Blood Group found in shirt etc.
PW-7 Ranjeet Singh who is an independent/public witness
had deposed that the accused had got recovered one blood stained shirt
and one T-shirt from a Chhappar and they were taken into possession
vide memo Ex.PW7/D which bears his signatures at point A.
PW-13 also corroborated the testimony of PW-7 by stating
that the accused Samunder and Deepak handed over one polythene bag
containing one dirty shirt and red colour T-shirt having blood stains to
the place after taking out the same from Maizezine/Parchati from the
Pashuo ka tabela (the place where the animal are used to be kept). The
same were taken into possession vide memo Ex.PW13/M which bears
his signatures. As per the disclosure statement, the shirt was belonging
to Samunder and the T-shirt to Deepak.
PW-14 has made the similar statement before the Court that
the accused persons took them to tabela (the place used to keep the
animals) and from where one red T-shirt and one shirt were got
recovered by the accused Deepak and Samunder and the same were
sealed with the seal of OPS and taken into possession. The shirt was
Ex.PC belonging to Samunder and the T-shirt was of Deepak and the
same is Ex.PD.
PW-27 also corroborated the statements of PW-7, PW-13 &
PW-14, by deposing that all the accused persons led the police party
including the public persons to a stable behind house No.14, Golden
Park, Ram Pura, Delhi, by saying that the clothes were hidden by them
at that place. The pointing out memo Ex.PW13/M was prepared.
Thereafter, the accused Samunder took out one torn shirt having blood
stains on both the shoulders on front and back. Accused Deepak took
out one T-shirt from the place underneath a plastic cover and the same
was seized vide memo Ex.PW7/D. The site plan was also prepared.
However, in the statement recorded under Section 313 Cr.P.C. the
accused persons denied the said recovery. As per the FSL report, the
shirt submitted as exhibit-15 contained human blood of "B" group
which matches the blood group of the deceased. The said shirt which
was recovered on the basis of disclosure statement, was belonging to
Samunder.
C) Blood-stained pieces of stone
PW-7 deposed that in his presence, the police had lifted
blood from near the water tank, blood stained plaster, earth control from
the sport and took them into possession by making a recovery memo
vide memo Ex.PW7/A which bears his signatures at point-A. One blood
stained piece of floor, earth control were also lifted from near the wall
of water meter vide memo Ex.PW7/B which also bears his signatures at
point-A. Thereafter, the accused had taken them near the railway track
from where the blood-stained earth and blood were also lifted and one
rope was taken into possession and seized vide memo Ex.PW7/C which
also bears his signatures at point-A.
PW-13 reiterated the statement of PW-7 and deposed that
from the sport the I.O. lifted blood-stained soil and earth control sample
and the same were sealed with the seal of OPS in pullanda and taken
into possession vide memo Ex.PW7/A which bears his signatures at
point-B. At the instance of accused Deepak, one brick having blood
stains as well as having some hairs passed on it along with blood stained
as well as piece of the earth and earth control sample were lifted and
sealed in pullanda with the seal of OPS and seized vide memo
Ex.PW7/B which bears his signatures at point-B. Thereafter, all the
three accused took the police party to the railway track near small way
called pagdandi and they disclosed that they kept a dead body there for a
while. So, the I.O. lifted the blood smeared soil and taken into custody
vide memo Ex.PW7/A. After going forward only upto 15 paces by the
side of railway track, there was a „keeker' tree. Accused Riken pointed
out one rassi/rope which was hanging on the said tree. The same was
taken into possession vide memo Ex.PW7/B.
PW-14 has also corroborated the statements of PW-7 &
PW-13.
PW-27 deposed that at the instance of the accused persons,
one blood-stained brick on which some hairs were stick, was recovered
from the place in between water motor and the wall of the room. The
brick was sealed with the seal of OPS and was seized vide memo
Ex.PW7/B. He also lifted blood samples, blood-stained earth and earth
control nearby the place where brick was lying and the same was seized
vide memo Ex.PW7/B. He also prepared the site plan of that place,
Ex.PW27/C. Thereafter, the accused persons led the police party via a
pagdandi after travelling about 200 meters, they pointed a place near
high tension tower by stating that they rest the body at this place while
shifting the body from House No.14 to railway track. The pointing out
memo Ex.PW13/N was prepared. At that place, blood was found lying
on the ground. He lifted blood-stained soil and earth control and sealed
them in separate parcel with the seal of OPS and were seized vide memo
Ex.PW7/A. The parcels were given serial Nos.4 & 4A. Thereafter, the
police team proceeded towards railway track. On the way, accused
Riken pointed towards keeker tree where he had thrown the rope. He
prepared the pointing out memo Ex.PW13/E. Accused Riken produced
one rope having blood stains after taking it from keeker tree where it
was entangled. The rope was measured as 7.5 feet and was sealed in a
parcel with the seal of OPS and was seized vide memo Ex.PW7/C. It
was also deposed that public witness PW-7 Ranjeet Singh was also with
them. Thereafter, all the accused led the police party to railway track
near kilometer pole No.7/29 and pointed the place on the railway track
where the body was thrown by them. The pointing out memo
Ex.PW13/L was prepared. The site of the place near keeker tree is
Ex.PW27/D.
As per the FSL report, the blood-stained pieces of stone
contained the human blood of "B" group. The blood was also detected
as per the analysis of the result on the pieces of stone having brown
stains, a piece of brick having brown stains along with few strands of
hair and cemented material having brown stains described as blood-
stained floor and plaster pieces and a piece of jute rope. In some of the
exhibits, no reaction was shown as per the report of the FSL. PW-14 in
his testimony has also stated that due to rain in the night, some of the
ligature marks could not be visible properly. He also stated that he
inspected the cloth of the dead body and there was sticker affixed on
brown coloured pant in the name and style of Prince Tailor, Singh
Market, Muner. Thereafter, Head Constable Hawa Singh was sent to
Muner, Bihar, with the pant of the deceased for the identification of the
dead body. Head Constable Hawa Singh came to Delhi on 10.06.2004
and he made his rival entry. Thereafter, the brother of the deceased was
called and they dead body was identified.
26. Further, the detail and result of examination of physical
characteristics of the articles contained in ten parcels received by the
Forensic Science Laboratory through Biology Division and sent to
Additional SHO are given as under:
"DESCRIPTION OF ARTICLES CONTAINED IN THE
PARCELS
Parcel No.1: One sealed envelope sealed with the seal of "VSN
FSL DELHI" containing Exhibit-1.
Exhibit- 1 : Stone pieces having dark brown stains described
as "Blood Stained Stones".
Parcel No.2 : One sealed envelope sealed with the seal of "VSN
FSL DELHI" containing Exhibit-2.
Exhibit- 2 : Stone pieces described as "Earth Control Stones".
Parcel No.3 : One sealed envelope sealed with the seal of "VSN
FSL DELHI" containing Exhibit-3.
Exhibit- 3 : Stone pieces having dark brown stains described
as "Blood Stained Stones".
Parcel No.4 : One sealed envelope sealed with the seal of "VSN
FSL DELHI" containing Exhibit-4.
Exhibit- 4 : Stone pieces described as "Earth Control Stones".
Parcel No.5 : One sealed envelope sealed with the seal of "VSN
FSL DELHI" containing Exhibit-6.
Exhibit- 4 : One pant having dark brown stains with soil
adhering to it.
Parcel No.8 : One sealed envelope sealed with the seal of "VSN
FSL DELHI" containing Exhibit-8.
Exhibit- 8 : Cemented material described as "Blood Stained
Floor and plaster pieces".
Parcel No.9 : One sealed envelope sealed with the seal of "VSN
FSL DELHI" containing Exhibit-9.
Exhibit- 9 : Cemented material described as "Earth control
floor and plaster pieces".
Parcel No.10: One sealed envelope sealed with the seal of "VSN
FSL DELHI" containing Exhibit-10.
Exhibit- 10 : Soil described as "Blood stained Soil".
Parcel No.11: One sealed envelope sealed with the seal of "VSN
FSL DELHI" containing Exhibit-11.
Exhibit- 11 : Soil described as "Earth Control Soil".
Parcel No.12: One sealed cloth parcel sealed with the seal of
"OPS" containing Exhibit-12.
Exhibit- 12 : Soil described as "Earth Control muddy Soil
Sample".
RESULTS OF EXAMINATIOIN
1. Exhibit-1 and Exhibit-2, were found to be possessing
similar physical characteristics.
2. Exhibit-3 and Exhibit-4, were found to be possessing
similar physical characteristics.
3. Soil adhering to Exhibit-6 and soil Exhibit-12, were found
to be possessing similar physical characteristics.
4. Exhibit-8 and Exhibit-9, were found to be possessing
similar physical characteristics.
5. Exhibit-10 and Exhibit-11, were found to be possessing
similar physical characteristics."
It is clear from examination of the results that Exhibits 1-4
and 6-12 were found to be possessing similar physical characteristics.
27. It is a well established legal principle that in a case based on
circumstantial evidence where an accused offers a false explanation in
his statement under Section 313 Cr.P.C. in respect of an established fact,
the said false denial could supply a missing link in the chain of
circumstances appearing against him.
28. The well known rules governing circumstantial evidence are
that :- (a) the circumstances from which the inference of 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; (b) the circumstances should be of a
determinative tendency unerringly pointing towards the guilt of the
accused; and (c) the circumstances, taken collectively, are incapable of
leading to any conclusion, on a reasonable hypothesis, other than that of
the guilt of the accused.
29. No doubt, the courts have also added two riders to the
aforesaid principle namely, (i) there should be no missing links but it is
not that every one of the links must appear on the surface of the
evidence, since some of these links can only be inferred from the proved
facts and (ii) it cannot be said that the prosecution must meet each and
every hypothesis put forward by the accused however far-fetched and
fanciful it may be.
30. Admittedly, there are certain contradictions on the aspect of
the arrest of the accused and recovery as well as the discrepancies and
inconsistencies in the statements of the prosecution witnesses. It is also
true that Shambhu was not produced as a witness who, according to the
prosecution, hosted the dinner on the fateful day, i.e. 06.06.2007 where
the deceased are alleged to have gone. However, it is settled law that
such discrepancies do creep in when a witness deposes in a natural
manner and if those do not go to the root of the prosecution story, then
the same may not be given undue importance. The conviction of the
accused can be passed even on the testimony of a solitary witness when
the evidence is found otherwise reliable. In the present case, PW-7 is a
public witness. Secondly as per the FSL report the same group of blood
was found in the shirt of accused Samunder. The other recovery which
was made on the basis of disclosure statements of the accused in the
presence of PW-7, PW-13, PW-14 & PW-27 is a reliable evidence
which has been produced by the prosecution. They do not admit the
submission of the accused that there was no independent witness who
has supported the case of the prosecution. It is immaterial if the CD
relied upon by the prosecution is not proved, but at the same time, the
prosecution was able to prove the recovery made by the accused in their
disclosure statements. The explanation given by the appellants/accused
is totally false and frivolous that the fact of the deceased having met
with an accident cannot be ruled out, or he was apparently trying to
jump a railway track. The doctor who conducted the post mortem
examination has clearly opined that the deceased was also strangulated.
This clearly rules out the theory of accidental death. The evidence
proved by the prosecution is totally different to the explanation given by
the accused.
31. In the present case, in order to prove the enmity, the
prosecution proved the „Panchayat Faisla‟ Ex.PW-9/B and copy of the
FIR No.32/2002, Police Station Rohini. The public witnesses had also
deposed in this regard and also proved the said documents. Although
the learned counsel for the accused made the statement at the bar that
the case has been closed due to non-prosecution. The deceased Ramesh
Rai was working at dairy of Lalit @ Bindu Pahalwan, PW-4/. At about
8/8:30 p.m., he left the dairy of Bindu Pahalwan and never returned to
the house. This fact was confirmed by PW-5 Smt Shashi, wife of PW-4.
It appears, therefore, that PW-5 was the last seen evidence of the
deceased Ramesh Rai. PW-8 proved the enmity of the Deepak with
deceased Ramesh Rai since 2002. The statement of the PW-8 was
corroborated in the testimony of PW-3 Dinesh Rai, PW-9 Vinod Rai,
PW-15 Kailash Singh and PW-12 Shivji Rai. The dead body of the
deceased was lying at railway track near Rampura and the same was
identified by sticker of Prince Tailor affixed on the brown coloured pant
of Singh Market, Muner. PW-24 Head Constable Hawa Singh went to
the village and met the relatives of the deceased who deposed with
respect to the identification of the dead body. The accused persons
made their disclosure statements before the police and led the police
official to the room at WZ-14, Golden Park, where the alleged crime
was committed and accused persons also led the police party and PW-7
Ranjeet Singh to the Paireri at HT Tower where the dead body was kept
for a while. The rope was hanging on the kiker tree. They also led the
police party to the railway track where the dead body was lying.
Accused got recovered one blood stained shirt and one T-shirt from the
„pashuo ka tabela‟ which were seized.
32. On the disclosure statement, rope, blood stained stone, earth
controlled soil, blood stained shirt and T-shirt were recovered and
examined in the FSL. The report of the FSL clearly showed that the
deceased had human group B blood which was established from his
teeth as well as from pant.
33. The accused Samunder is the real uncle of the accused
Deepak and Riken @ Diken who are the real brothers. From the
evidence provided by the prosecution, it is clear that the accused in pre-
planned manner committed the murder of Ramesh Rai. The evidence of
the prosecution is trustworthy with respect of the proof of motive as it
has been proved on record that all accused persons had earlier also
assaulted the deceased on the occasion of Holi in village. PW-7 Ranjeet
Singh, an independent witness, stated that at the instance of accused
persons, blood stained shirt, T-shirt, blood stained brick affixed with
hair, rope etc. were recovered. The recovery of the said articles
connects the accused persons with the crime and proved the guilt
beyond all reasonable doubt. There is a clear evidence of PW-5 that the
deceased left his dairy and went to attend the party on 06.06.2004.
Thereafter, the accused did not come back. There is a positive evidence
against Samunder as on his disclosure statement, blood stained shirt was
recovered which contained human group B blood as per the FSL report.
34. Post-mortem report shows that the way the deceased was
assaulted, it was not the work of single person because of the fact that
the dead body was removed from one place to another place many
times.
35. Under these circumstances, the accused have committed the
murder of deceased Ramesh Rai with ulterior motive to take the
revenge. In our opinion, the trial Judge has given very cogent reasons
for convicting the appellants. Therefore, the prosecution has been able
to prove the guilt of the accused persons beyond reasonable doubt and
all the circumstances have been proved. There is overwhelming
circumstantial evidence to show that the accused committed the crime.
We find no force in these appeals.
36. Therefore, the appeals are dismissed.
MANMOHAN SINGH, J
BADAR DURREZ AHMED, J
OCTOBER 21, 2011
jk/ka
