Delhi High Court
Pradeep Kumar @ Sonu vs State on 20 February, 2020
$~R-64
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 04th February, 2020
Judgment pronounced on: 20th February, 2020
+ CRL.A. No. 936/2018
PRADEEP KUMAR @ SONU ..... Appellant
Through: Mr. Ajay Verma, Advocate
versus
STATE ..... Respondent
Through: Ms. Aashaa Tiwari, APP for the State.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
JUDGMENT
SANGITA DHINGRA SEHGAL, J
1. Present appeal is directed against judgment dated 25.04.2018 and
order of sentence dated 28.04.2018 passed by the learned Additional
Sessions Judge, Special Judge, (NDPS), West District, Tis Hazari
Courts, Delhi in Sessions Case No. 56749/2016 arising out of FIR
No. 256/2011, under Sections 302/377/404 of the Indian Penal Code,
1860 (hereinafter referred to as 'IPC') registered at Police Station
Kirti Nagar, Delhi, whereby the learned Sessions Judge found the
appellant-accused guilty and sentenced him as follows:
"For the above mentioned reasons mainly, keeping in
view the proved guilt of the convict, for committing
heinous offences mentioned above, this court takes some
lenient view against the convict on the point of sentence.
Accordingly, the convict is hereby sentenced to undergo
rigorous life imprisonment and to pay fine in sum of Rs.
Fifty Thousand for the offence punishable under section
302 IPC. He is further sentenced to undergo rigorous
imprisonment for ten years and to pay fine in sum of Rs.
Ten Thousand for the offence punishable under section
377 IPC and in default of payment of such fine for this
offence, he is further sentenced to undergo rigorous
imprisonment for six months. He is also sentenced to
undergo rigorous imprisonment for two years and to pay
fine in sum of Rs. Five Thousand for the offence
punishable under section 404 IPC and in default of
payment of such fine for this offence, he is further
sentenced to undergo rigorous imprisonment for three
months.
Fine not paid by and on behalf of the convict today for
any of the abovementioned offences. Benefit of section
428 Cr.P.C. is also given to convict. All the substantive
sentences, mentioned above, shall run concurrently. Case
property of this matter be disposed of as per law/ rules,
after expiry of period of appeal/ outcome of the appeal, if
so filed, as the case may be."
2. Before going into the merits of the present appeal, it is relevant to
recapitulate the brief facts of the present case, as elaborated by the
learned trial court, which are as follows:
"2. Brief facts of the case of prosecution are that on
29.08.2011 at about 01:27 PM, on receipt of DD No.16A,
PW-38 Inspector Braj Mohan, alongwith PW-36 Constable
Bhim Singh, reached the spot i.e. House no. E-59, Kirti
Nagar, Delhi, where PW-3 Mr. Sanjay Narang met them
and told that a foul smell was emitting from the house of
his brother Narender Narang (to be referred to as deceased
hereinafter) at ground floor. The sliding door of the ground
floor was found open and a foul smell was found there. The
bedroom of deceased was found locked and its door was
got opened by breaking the lock. A dead body was found
lying on the bed inside the room, which was covered with a
white bed sheet. After removing that bed sheet, it was found
that the deceased was lying naked. On the upper body of
the deceased, a green colour bed sheet was wrapped. The
dead body was decomposed and there were maggots on it.
The feet of deceased were down from the bed. The face of
deceased was upwards. Blood was scattered on floor and
mattresses and blood stains were also there on the wall
towards the feet of deceased. A bunch of hair was lying on
the left side of dead body. A clutch wire was found tied on
the neck of deceased. PW-38 recorded the statement of
PW-3 and prepared rukka Ex.PW-38/A and sent the same
to police station for registration of the FIR through PW-36
Constable Bhim Singh. Crime team was called at the spot
which inspected the scene of crime. Photographs were
taken and chance prints were lifted. Site plan was
prepared. PW-38 collected the exhibits. Dead body was
shifted to mortuary and postmortem was conducted. As per
postmortem report, the cause of death was due to asphyxia
subsequent to compression of neck created in a
strangulation prepared by steel wire tied around the neck
of deceased. All the injuries were opined as ante mortem in
nature and of same duration. On a secret information, on
17.09.2011, accused herein was arrested from his native
village Bilheri, District Hardoi, U.P. His disclosure
statement was recorded and then accused handed over one
mobile phone make Tata Indicom, black colour having
connection no.9151402124, belonging to deceased. On the
pointing out of accused, Juvenile in conflict with law
namely Kamal Kishor @ Rajput (in short referred to as
JCL hereinafter) was also apprehended, who was also
reportedly involved in commission of crime in this matter,
in furtherance of common intention, shared in advance with
accused herein. JCL got recovered two more mobile
phones of deceased and in these two mobile phones, JCL
got fed his own contact numbers. PW-3 Sanjay Narang
produced the empty boxes of three mobile phones of
deceased of which Call Details Reports (in short CDRs)
were obtained. It is relevantto mention here that the charge
sheet against the JCL was filed before the Ld. Juvenile
Justice Board concerned (in short JJB) and in this way, the
accused herein namely Pradeep Kumar @Sonu(in short
referred to as accused hereinafter)is only facing trial in
this case in this court for the abovementioned offences, for
which charge was framed against him.
After committal of this case to this court, arguments on the
point of charge were heard from both sides and then
charge under sections 302 and 377 IPC, both read with
section 34 IPC, and also for offence punishable under
section 404 IPC, was framed against this accused, to which
he pleaded not guilty and claimed trial. Thereafter, case
was fixed for prosecution evidence."
3. To bring home the guilt of the accused, the prosecution has examined
40 witnesses in all. The incriminating evidence and circumstances
were put to the Appellant during his statement recorded under
Section 313 of Cr.P.C wherein he claimed to have been falsely
implicated in the present case and examined one witness in his
defence.
4. After appreciating and considering the rival contentions of the parties
and scrutinizing the evidence, the learned Trial Court held the
accused guilty and convicted him for the charged offence.
5. Mr. Ajay Verma, learned Counsel for the Appellant opened his
submission by contending that the impugned judgment dated
25.04.2018 is based on conjectures and surmises and the same is
against the facts and the settled proposition of law. He submitted that
the learned Trial Court has ignored and omitted the material evidence
and has disregarded the cogent evidence in favour of the appellant
and has failed to appreciate the basic matter in dispute and it is
beyond comprehension as to how the appellant has been categorized
as the actual perpetrator of the crime because there is no direct
evidence on record to establish that the appellant was involved in the
commission of the alleged offence.
6. Learned Counsel for the Appellant further submitted that since the
case of the prosecution is based on circumstantial evidence, the entire
chain of events had to be proved in a manner to arrive at a just
conclusion of guilt of the accused without any hypothesis of guilt,
which has not been done in the present case and if the chain of events
is broken, the benefit of doubt has to be extended to the appellant. To
substantiate his argument learned counsel for the appellant relied
upon the case of Chandru @ Chandrasekaran vs. State Rep. By
Deputy Superintendent Of Police CB CID and Anr reported in 2019
SCC OnLine SC 176.
7. Learned counsel for the Appellant further contended that the learned
Trial Court has erred in relying on the testimonies of prosecution
witnesses because there are major contradictions and discrepancies in
the statements of the material prosecution witnesses, hence their
evidence cannot be exclusively relied on as trustworthy and reliable.
He further contended that the importance of motive in a case of
circumstantial evidence is paramount and the absence of motive in a
case of circumstantial evidence is critical to the version of the
prosecution and since no motive has been proved by the prosecution
in the present case, the appellant deserves acquittal.
8. Learned counsel for the appellant further contended that the recovery
effected at the instance of the appellant cannot be relied upon as it
has no evidentiary value and does not fall within the purview of
Section 27 of the Indian Evidence Act. It was further contended that
the recovery was effected in the presence of police officers and the
same is not reliable, as no genuine and sincere efforts were made by
the Investigating Officer to authenticate the alleged recovery with the
presence of any independent witnesses.
9. Learned Counsel for the appellant further contended that the medical
& scientific evidence fails to corroborate the version of the
prosecution. He further added that the learned trial court erred in
convicting the appellant under Section 377 IPC, as there is no direct
evidence on record to substantiate the version of the prosecution that
there was a sexual relationship between the appellant and the
deceased.
10. Learned counsel for the appellant further labored hard to show that
the prosecution in the present case has relied upon the report tendered
by (PW-32) SI Sushil Kumar, Finger Print Expert of the Delhi Police
Fingerprint Bureau, for substantiating their version that the right
thumb finger impression of the appellant (Mark S-1) matched with
one of the chance prints (Q-5) obtained from the scene of crime. He
further submitted that the abovementioned report does not complete
the chain of circumstances unerringly pointing finger against the
appellant and that it was the appellant who had committed the alleged
crime. To substantiate his argument learned counsel for the appellant
relied upon the case of Sonvir vs State(NCT Of Delhi) reported in
(2018) 8 SCC 24.
11. Learned counsel for the appellant further contended that on the basis
of non-explanation under Section 106 of Indian Evidence Act, 1872,
the appellant cannot be convicted in a case based on circumstantial
evidence especially when there is no evidence to corroborate the
version of the prosecution. Counsel for the appellant lastly urged that
the trial court has failed to properly appreciate the facts and
circumstances of the case; hence, the impugned judgment is liable to
be set aside.
12. Ms. Aashaa Tiwari, learned APP for State, on the other hand,
strongly refuted the submissions made by the counsel for the
appellant and submitted that the impugned judgment is based on
proper appreciation of the facts and evidence, no interference in the
impugned judgment is called for by this Court; that the statements of
prosecution witnesses and medical/scientific evidence are
corroborative in nature and the prosecution has been able to prove its
case beyond reasonable doubt.
13. Learned APP for State further submitted that motive is a relevant
factor in all criminal cases, whether based on direct or circumstantial
evidence, but the inability to establish motive in a case of
circumstantial evidence is not always fatal to substantiate the version
of the prosecution. She further submitted that the testimonies of
PW-3 Sanjay Narang (brother of the deceased) and PW-5 Ms.
Mamta Narang (Sister-in-Law of the deceased) are consistent and
corroborative in nature and minor contradictions and discrepancies
which have arisen in their testimonies can be ignored, due to lapse of
time or due to mental disposition such as shock and horror at the time
of the incident.
14. She further submitted that the prosecution has relied upon the
recovery effected at the instance of the appellant and there is no
cogent reason to doubt the aforementioned recovery merely for the
reason that the same was effected in the presence of police witnesses
and is not supported with the presence of any independent witnesses.
15. Learned counsel for the State further contended that the crime team
inspected the scene of crime on 29.08.2011 and lifted chance prints
which were forwarded to the Finger Print Bureau and one of the
Chance Prints (Q-5) matched with the thumb impression
(Mark S-1) of the appellant, which evidently proves the involvement
of the appellant in the commission of the alleged crime.
16. Learned APP for the State further added that in view of Section 106
of Evidence Act the burden was on the appellant-convict to explain
as to how his thumb impression (Mark S-1) matched with one of the
Chance Prints (Q-5) lifted from the scene of crime; however the
appellant-convict had failed to discharge the said burden in his
statement recorded under Section 313 CrPC and consequently,
adverse inference had to be drawn against him.
17. Counsel for the state lastly urged that the evidence produced on
record as well as the circumstances proved by the prosecution, form a
complete chain pointing unequivocally towards establishing the guilt
of the accused.
18. Based on these submissions, counsel for the State urged that this
Court may not interfere with the well-reasoned order passed by the
learned Trial Court convicting the appellant for the alleged offence.
19. We have given our anxious consideration to the submissions
advanced on behalf of counsel for the parties at considerable length
and also perused the material available on record.
20. The present is a case of circumstantial evidence and there is
admittedly no eye witness to the murder of the deceased and no
direct evidence has been brought to the notice of this Court.
Therefore, it would be profitable to refer to the legal position with
regard to establishing a case based on circumstantial evidence.
21. The Hon'ble Apex Court, in Sharad Birdichand Sharda v. State of
Maharashtra, reported in 1984 AIR SC 1622, whilst placing reliance
on the five golden principles enunciated in its decision in Hanumant
v. State of Madhya Pradesh, reported in AIR 1952 SC 343,
elaborated the nature, character and essential proof required in
criminal cases which rest on circumstantial evidence. It was held that
is necessary that the chain of events proved by the prosecution must
show that within all human probability the offence has been
committed by the alleged perpetrator and by nobody else. The
germane portion of the decision have been extracted herein below:
"152. Before discussing the cases relied upon by the High
Court we would like to cite a few decisions on the nature,
character and essential proof required in a criminal case
which rests on circumstantial evidence alone. The most
fundamental and basic decision of this Court is Hanumant
v. State of Madhya Pradesh [AIR 1952 SC 343 : 1952 SCR
1091 : 1953 Cri LJ 129] . This case has been uniformly
followed and applied by this Court in a large number of
later decisions up-to date, for instance, the cases of Tufail
(Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198
: 1970 SCC (Cri) 55] and Ramgopal v. State of
Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC 656] . It
may be useful to extract what Mahajan, J. has laid down in
Hanumant case [AIR 1952 SC 343 : 1952 SCR 1091 : 1953
Cri LJ 129] :
'It is well to remember that in cases where the
evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to
be drawn should in the first instance be fully
established, and all the facts so established should be
consistent only with the hypothesis of the guilt of the
accused. Again, the circumstances should be of a
conclusive nature and tendency and they should be
such as to exclude every hypothesis but the one
proposed to be proved. In other words, there must be
a chain of evidence so far complete as not to leave
any reasonable ground for a conclusion consistent
with the innocence of the accused and it must be such
as to show that within all human probability the act
must have been done by the accused.'
153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against
an accused can be said to be fully established:
―(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned "must or should" and not
"may be" established. There is not only a grammatical
but a legal distinction between "may be proved" and
"must be or should be proved" as was held by this Court
in Shivaji Sahabrao Bobade v. State of Maharashtra
[(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ
1783] where the observations were made: [SCC para
19, p. 807: SCC (Cri) p. 1047] ―
"Certainly, it is a primary principle that the accused
must be and not merely may be guilty before a court
can convict and the mental distance between 'may be'
and 'must be' is long and divides vague conjectures
from sure conclusions."
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is to
say, they should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature
and tendency,
(4) they should exclude every possible hypothesis except
the one to be proved, and
(5) there must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on
circumstantial evidence."
(emphasis supplied)
22. In view of the dictum of the Hon'ble Supreme Court in Sharad
Birdhichand Sharda (supra) and before proceeding to examine the
evidence on record, it would be pertinent to peruse the testimonies of
material prosecution witnesses, more particularly testimonies of
PW-3 Sanjay Narang (brother of the deceased), PW-5 Ms. Mamta
Narang (Sister-in-Law of the deceased) and PW-9 Mr. Ashok Pahwa
(cousin brother of the deceased). PW-3 Sanjay Narang (brother of
the deceased) during his examination in chief deposed as under:-
"My elder brother Sh. Narender Narang (deceased) was
living at the ground floor at the above mentioned address. I
was living with my family at the first floor of the same
premises. My brother Narender Narang was divorcee and
issueless. He was living alone at the ground floor.
On 26.08.2011 at about 8.30 pm, when I came back home
from my shop situated at Azad market, I saw my brother
Narender Narang at the ground floor who was performing
Pooja at that time. Thereafter I went to the first floor.
On 29.08.2011 at about 11.00 am, when I was going to my
shop, my wife (Smt. Mamta Narang) told me that there was
some foul smell coming near stairs and gate of our house at
the ground floor. I also felt the foul smell but I thought
that, "KOI CHUHA MAR GAYA HOGA" and thereafter I
left for my shop.
On 29.08.2011, I reached my shop at about 11.30 am. I
performed puja and switched on the TV and started watching
it. My wife telephoned me on my mobile No. 9716141060
telling me that the foul smell on the ground floor had
increased and she asked me to call my elder brother Narender
Narang. Thereafter I tried the mobile phone of my brother
Narender Narang i.e. 9810230205 from my another mobile
phone No. 9810214131 but the mobile phone of my brother
was switched off. Thereafter I tried the another mobile phone
of my brother Narender Narang (I do not remember its
number) same was also found switched off. Till the time I was
trying the above said two mobile phones of my brother
Narender Narang my wife was on hold on phone with me. I
asked my wife to disconnect the call and I told her that I
would talk to my sister who might be knowing something
about my brother Narender Narang.
xxxx xxxx xxxx xxxx
The house from the ground floor was giving a very bad
smell. I called 2-3 neighbours to help me but as per their
advise I telephoned the police at No. 100 from my mobile
No. 9810214131. Police reached at the spot. The sliding
door of the drawing room was not locked from inside and
police could enter the premises at the ground floor through
that door after opening the same. Since there was a foul
smell coming from the house police could not stand inside and
immediately came out. After some time the police officials
from PS Kirti Nagar also reached the spot. The bedroom of
my brother Narender Narang was found locked and the
police officials broke open the said lock and entered the
bedroom of Narender Narang. My friend Raju living in the
said locality had also reached there who had helped the
police officials to break open the lock of the door. I along
with my cousin Sh.Ashok Pahwa and Raju also entered the
bedroom. There was lot of blood lying on the floor as well
as on the bed. One body was lying on the bed which was
covered from the sheet. After removing the sheet I identified
the dead body of my brother Narender Narang lying on the
bed which was in naked condition. There was clutch wire
(of two-wheeler) around the neck of the deceased. Police
recorded my statement Ex.PW3/A bearing my signature at
point A.
Police prepared site plan at my instance and same is
Ex.PW3/B bearing my signatures at point A. The mobile
phones from the house of my brother Narender Narang was
found missing. I had handed over the empty boxes of three
different mobile phones (one of Tata Indicom another of
Nokia and third one of LG mobile phone) of my brother
Narender Narang to the police. Same were seized by the
police vide seizure memo Ex.PW3/C bearing my signatures at
point A.
Police had lifted the blood lying on the floor, on the wall of
the room as well as earth control. Same was seized by the
police vide seizure memo Ex.PW-3/D bearing my signatures
at point A. Police had also seized two bed sheets, one green
and one white, two mattresses, two pillows all blood stained,
bunch of hair lying beside the dead body and one banyan and
nicker of my deceased brother which were lying on the chair
of the room, vide seizure memo Ex.PW3/E bearing my
signatures at point A."
23. During his cross examination he deposed as under:-
"I met my brother on 26.08.2011 in the night at about 8.30
pm. it is wrong to suggest that I have not good relations with
my deceased brother. I am dealing in old dhoti i.e I used to
purchase old dhoties and sold the same in the factory. It is
correct that my deceased brother used to deal in the same
business. I alongwith my brother were living in the same
house since birth. It is correct that my brother was residing
alone in the ground floor. On Monday I came to know that my
brother is lying dead on the ground floor. It is correct that
daily I was not in contact or meet my brother. I used to met
,my brother after every 2-3 days. It is wrong to suggest that I
had no good relations with my brother because was not
meeting my brother daily. I am living in ancestral property
measuring 300 sq.yds. worth about Rs. 10 Crore as per
market value and both me and my brother are living in the
said property. The documents of inheritance of the said
property is in our name. My children and my wife were not
daily meeting with my deceased brother. I cannot tell who
were the employees at the shop of my deceased brother. I
cannot tell who were visiting the house of my deceased
brother. It is correct that some person used to visit my
deceased brother but I cannot tell their names. Wife made a
call to me on Monday i.e. 29.08.2011 at about 11.00a.m-12
noon. I left for my shop at about 11.00 a.m. I reached at my
house at about 1.00-1.15 p.m on 29.08.2011. I made
telephone call at about 1.27 p.m to the police. I cannot tell the
name of the police official who reached om 100 number call.
The police official who reached there stayed for few minutes
and they called the local police. The police officials remained
at the spot till evening hours. The doors of my brother key
locked from inside. It is not in my knowledge that my brother
compelled other boys to have carnal intercourse with him.
The police official has lifted the exhibits from the spot i.e.
beddings, clothes, bed sheet and also lifted the blood stained
earth and earth control by breaking the floor. Police may
enquiry from me at the spot and also at the PS. I do not
remember if my signatures were obtained on my statement at
the spot or at police station. My signatures were obtained on
my statement at police station. The cardboard boxes were
found in the room of my deceased brother. The said
cardboard boxes were found in the room of my brother when
police searched the house and the same were taken in
possession by the police. The ground floor where my brother
used to live was sealed by the police when they left the spot."
24. Ms. Mamta Narang (Sister-in-Law of the deceased) stepped into
witness box as PW-5 and deposed that:-
"On 29.08.2011, my husband was going to shop at Azad
Market, Delhi. At about 11 am when my husband was
leaving the house for his shop, I told him that there was a
foul smell like a dead mouse, in and around the staircase of
our house. My husband told me that the foul smell would
finish by the passage of time. My husband left for his shop.
The foul smell coming from ground floor of our house which
was occupied by my jeth (elder brother-in-law) as we used to
reside on the first floor. I made a call to my husband and told
him that foul smell has increased and my husband came back
at the house. He also felt the foul smell and neighbours also
gathered outside the ground floor of our house. Neighbours
advised my husband to make a call to the police and
accordingly, my husband made a call to the police. Police
came at our house. Before that, my husband made call to my
jeth on his mobile phones but both the phones were switched
off and my jeth had not gone to his godown from 26.08.2011.
The sliding door was opened and the ground floor of our
house and foul smell was heavily coming from ground floor.
My husband along with police officials entered the ground
floor of the house of Narender Narang and found the
bedroom was locked and foul smell was coming from the bed
room. The door of bed room was broken and found dead
body of Narender Narang lying on the bed which was
covered with white sheet. The white bed sheet was removed
from the face of Narender Narang and my husband
identified his elder brother Narender Narang. I also
identified the dead body of Narender Narang lying in the
ground floor bed room. My husband told me that my jeth,
Narender Narang was killed by tying wire around his neck.
The dead body of Narender Narang was removed to
Mortuary, DDU Hospital."
25. During her cross examination she deposed as under:-
" My jeth had his own separate kitchen at ground floor. My
husband came back from his shop after about one and half
hours since I made a call to him. Police remained at the
ground floor of our house till night hours on that day. My
statement was recorded by the police on the same day when
the dead body was recovered. There was no dispute between
my husband and jeth with regard to any ancestral property. I
cannot tell the name and address of the persons who were
regularly visiting my jeth. I cannot tell the name and address
of the persons who were regularly visiting with my jeth. I
cannot tell about the name and address of the friends of my
jeth."
26. Mr. Ashok Pahwa (cousin of deceased) stepped into witness box as
PW-9 and deposed that:-
"Sanjay Narang and Narender Narang are sons of my Mama.
On 29.08.2011 at about 01.00 PM Sanjay Narang
telephonically informed me that both mobile numbers of
Narender Narang are switched off and a foul smell is
coming from his house. On hearing this, I immediately
reached at E-59, Kirti Nagar. A huge crowd was present
there. Sanjay Narang had called at 100 number. Police
also reached there. I alongwith Sanjay Narang, his wife
Mamta and one Rajeev alongwith other people entered the
house of Narender Narang. The sliding door of the house
was lying open whereas the door of bed room was locked.
With the assistance of police and other, the door was broke
opened.
On entering the room, we saw that one bed sheet was lying
on one person on the bed. The bed sheet was removed and it
was dead body of Narender Narang in naked condition. The
dead body was in a bad condition and there was a green
colour cloth on the upper part of the dead body. Both feet of
the dead body were hanging towards the floor. There was a
wire on the neck of the dead body."
27. From a conjoint reading of the aforesaid testimonies of the
prosecution witnesses, it is evidently established that a foul smell was
emanating from the house of Narender Narang (Deceased) i.e House
No. E-59, Ground Floor, Kirti Nagar, Delhi. Subsequently, PW-3
Sanjay Narang tried to call the mobile phone of deceased i.e
9810230205 from mobile phone no. 9810214131, but the mobile
phone of his brother was switched off. Thereafter, various neighbors
had also gathered outside the ground floor of their house because of
the foul smell emanating from the above-mentioned place of incident
and one of them advised Sanjay Narang to inform the police officials.
28. After some time, the police officials from PS Kirti Nagar, Delhi, had
arrived at the spot and the bedroom of the deceased was found
locked. The lock was opened with the assistance of the police
officials and there was a pool of blood lying on the floor as well as
on the bed. On entering the bed room, one dead body was found
lying in a naked condition on the bed which was covered with a sheet
and there was a clutch wire tied around his neck and the same was
identified as the dead body of the deceased (Narendra Narang) by the
abovementioned prosecution witnesses.
29. Further, corroborating the version of the aforesaid prosecution
witnesses, PW-38 Inspector Braj Mohan deposed that:-
"On 29.08.2011 I was posted as Inspector Investigation at PS
Kirti Nagar. On that day on receipt of DD No. 16A
Ex.PW2/A at about 01:27 PM, I along with Ct. Bhim Singh
reached the spot i.e., E-59, Kirti Nagar, Delhi where one
Sanjay Narang S/o Late Mr.Rajpal Narang, R/o E-59, First
floor met us and told that a foul smell was emitting from the
house of his brother Narender Narang at the ground floor.
We reached the ground floor and found that the sliding door
of the house was open and a foul smell was emitting from
there. I along with Sanjay Narang entered the house and
found that the door of bedroom of Narender Narang was
locked. That door was got opened by pushing (DHAKKA
MAAR KAR KHOLA). We found that the dead body of a
male person was lying on the bed covered with white bed
sheet. After removing the bed sheet, Sanjay Narang the
identified that dead body as of his brother Narender
Narang. The dead body was naked. One green bed sheet was
found wrapped on the upper portion of the body and the dead
body was decomposed and there were maggots on it. We also
found one clutch wire tied in the neck of deceased. Blood
was also lying on the floor and bed as well as in the corner
of the room. Blood was also found scattered on the wall of
that room. One hair wig was also found near the dead body.
I had recorded the statement of Sanjay Narang which is
already Ex.PW3/A bearing my signature at point B. I
prepared rukka Ex.PW38/A bearing my signature at point A
and sent the rukka to police station for registration of the
FIR through Ct.Bhim Singh. I also called the Crime Team
at the spot. I also informed my senior officers, who also
reached the spot. Crime team reached the spot and inspected
the scene of crime and took photographs. The Incharge,
Crime Team handed over the Crime Team report to me at the
spot."
30. During his cross examination he deposed that:-
"...On 16.09.2011 one secret informer met me and told that
the accused persons wanted in this case namely Pradeep
Kumar @ Sonu and Kamal Kishor @ Rajput, both R/o
Village Bilaheri, District Hardoi, U.P. were present in their
native village and if raided, they could be apprehended. I
had informed the SHO in this regard. Thereafter, I had
constituted a raiding party consisting of myself, SI Rampal,
Ct. Praveen and Ct.Pradeep. We along with the secret
informer left for the Village Bilaheri in a private Innova car
No. DL-4C-AE-9394, which was hired by SHO and reached
there at about 10:00/11:00 PM.
In early hours of 17.09.2011 we conducted raid in the house
of Kamal Kishor but he was not found there. His brother told
that Kamal Kishor was not present there. Thereafter, we
conducted raid in the house of accused Pradeep @ Sonu in
the same village. In his house, his brother Avdesh met and
told that Pradeep was not present there and he had gone
somewhere. We informed his brother to produce Pradeep @
Sonu before us in police station Hardoi. We came back to
P.S. Hardoi and informed there regarding our visit.
At about 11.00 AM, Avdesh produced his brother accused
Pradeep @ Sonu present today in the court (correctly
identified) in P.S. Hardoi. The secret informer had identified
the accused Pradeep @ Sonu and thereafter left from there.
Due to rush of local public persons there, the concerned SHO
had advised me to take the accused with us outside the police
station. We took the accused to Shahjahan Pur Road, Hardoi.
I had interrogated the accused and arrested him at 06:00
PM vide arrest memo already Ex.PW34/B bearing my
signature at point Y and his personal search was conducted
vide memo already Ex.PW34/C bearing my signature at
point Y. The accused was interrogated and he made his
disclosure statement already Ex.PW34/A bearing my
signature at point Y.
During the formal search of accused one TATA Indicom
mobile phone C-2901 was recovered. Accused disclosed that
that mobile phone was of deceased and accused had robbed
the same after the incident. The accused also disclosed that
he had put his own SIM in that mobile phone and he was
using the same. I had sealed that mobile phone with SIM in
a cloth pullanda with my seal of BM and seized the same
vide seizure memo already Ex.PW34/D bearing my signature
at point Y. Thereafter, we along with the accused reached
Delhi in early morning of 18.09.2011. I had deposited the
case property in malkhana.
The accused was sent to DDU Hospital and got the medically
examined through Ct. Praveen. Thereafter, he was brought to
police station. Ct. Praveen handed over two sealed parcel
sealed with the seal of CMO DDU Hospital along with one
sample seal to me and I had seized the same vide seizure
memo already Ex.PW35/A bearing my signature at point Y.
Accused Pradeep led us to the place of occurrence i.e.
House No. E-59, Kirti Nagar, Ground floor, Delhi and
pointed out the bedroom and I had prepared the pointing out
memo in this regard which is already Ex.PW35/B bearing
my signature at point Y.
xxxx xxxx xxxx xxxx
On 21.10.2011, complainant Sanjay Narang handed over
three empty mobile phone boxes on which the particulars of
mobile phone including IMEI number were mentioned. I had
seized the same vide seizure memo already Ex.PW3/C bearing
my signature at point Y. I had deposited the case property in
Malkhana. I had recorded supplementary statement of Sanjay
Narang in this regard."
31. Perusal of the aforesaid testimony also reveals that the appellant was
arrested vide arrest memo (Ex.PW34/B) and his disclosure statement
(Ex.PW34/A) was recorded, which led to the recovery of mobile
phone of the deceased. The appellant further led the police officials
to E-59, Ground Floor, Kirti Nagar, Delhi and pointed out the scene
of crime (bedroom of the deceased), on which the pointing out memo
was prepared vide (Ex.PW35/B). The aforesaid version of PW-38
Inspector Braj Mohan, is further authenticated with the testimony of
Const Praveen Kumar, who stepped into witness box as PW-35 and
deposed that:-
"On 16.09.2011, I was posted at P.S. Kirti Nagar. On that day,
I had joined the investigation in this case with IO/Inspector
Braj Mohan. IO had received the information regarding the
suspect in this case. I along with the IO, SI Ram Pal and Ct.
Satyawan left the police station in a private vehicle, whose
registration number and make I do not remember at this
moment due to lapse of time, and reached village Bilahari, P.S.
Shahbad, District Hardoi, U.P. We had searched for accused
Pradeep Kumar @ Sonu and Kamal, the suspects wanted in
this case.
In the house of accused Pradeep, his brother Avdesh met. IO
had directed Avdesh to produce his brother Pradeep before him
in P.S. Shahbad as and when he would found any clue about
him. On the same day i.e., on 17.09.2011 Avdesh had produced
his brother Pradeep @ Sonu present today in the court
(correctly identified) before the IO in P.S. Shahbad, Hardoi.
Accused Pradeep was interrogated. Thereafter, we left P.S.
Shahbad and on road at Shahjahanpur, the accused Pradeep
was interrogated and arrested vide arrest memo already
Ex.PW34/B bearing my signature at point B and accused
signed at point X. His personal search was conducted vide
memo already Ex.PW34/C bearing my signature at point B.
Accused made his disclosure statement which was recorded by
the IO in my presence already Ex.PW34/A bearing my
signature at point B and accused signed at point X. At the
time of arrest of accused, he had handed over one black
mobile phone make TATA C-2901 with SIM stating that it
was of Narender Narang (deceased) and he had inserted his
SIM card in that mobile phone. It was sealed by the IO in a
pullanda with seal of BM and taken into possession vide
seizure memo already Ex.PW34/D bearing my signature at
point A, SI Rampal signed at point B and accused signed at
point X.
After reaching Delhi, accused Pradeep was taken to DDU
Hospital where he was medically examined. After his medical
examination, the doctor had handed over two sealed pullandas
sealed with the seal of CMO DDU Hospital along with one
sample seal to me and I had handed over the same to IO. IO
seized the same vide seizure memo Ex.PW35/A bearing my
signature at point A. So long the pullandas remained in my
possession the same were not tampered with by anyone in any
manner.
Accused Pradeep led us to house No. E-59, Ground floor,
Kirti Nagar, Delhi where the accused pointed out the spot
while entering a bedroom. IO prepared the pointing out
memo in this regard which is Ex.PW35/B bearing my
signature at point A, SI Rampal signed at point B,
Ct.Satyawan signed at point C and accused signed at point X.
IO recorded my statement in this case.
I can identify the mobile phone, if shown to me.
At this stage, one sealed pulanda sealed with the court seal and
bearing particulars of this case is produced by MHC(M). The
same is opened, out of which one black mobile phone bearing
serial number PK9MAB1861806012 and MEID No.
A100004E8C9C81 is taken out having SIM cards of MTS
bearing SIM card No, OMH8991071113583727646M01. The
same is shown to the witness. The mobile phone is correctly
identified by the witness. The mobile phone is already Ex.P-1
and the SIM card of MTS company is already Ex.P-2."
32. Learned counsel for the appellant extensively argued that the recovery
effected at the instance of the appellant cannot be relied upon as it has
no evidentiary value and does not fall within the purview of Section 27
of the Indian Evidence Act. It was further contended that the recovery
was effected in the presence of police officers and the same is not
reliable, as no genuine and sincere efforts were made by the
Investigating Officer to authenticate the alleged recovery with the
presence of any independent witnesses.
33. So far as, the recoveries made at the instance of the accused is
concerned, the Apex Court in a catena of judgments has held that the
recovery and the pointing out memos which directly link with the
commission of the crime are relevant and admissible in the eyes of law.
While dealing with such a case, the Hon'ble Supreme Court of India in
the case of Debapriya Pal vs. State of West Bengal reported at (2017)
11 SCC 31 has held as under:-
"10. ...Under Section 27 of the Evidence Act only so much of
recovery, as a result of the disclosure statement, which
directly pertains to the commission of crime is relevant.
Otherwise, such an evidence is barred Under Section 25 of
the Evidence Act. Recovery of laptop does not have any
bearing. It is neither the weapon of crime nor it has any
cause of connection with the commission of crime. The law on
this aspect is succinctly said in the case "Jaffar Hussain
Dastagir v. State of Maharashtra: (1969) 2 SCC 872 in the
following manner:
5. Under Section 25 of the Evidence Act no confession
made by an Accused to a police officer can be admitted
in evidence against him. An exception to this is however
provided by Section 26 which makes a confessional
statement made before a Magistrate admissible in
evidence against an Accused notwithstanding the fact
that he was in the custody of the police when he made
the incriminating statement. Section 27 is a proviso to
Section 26 and makes admissible so much of the
statement of the Accused which leads to the discovery
of a fact deposed to by him and connected with the
crime, irrespective of the question whether it is
confessional or otherwise. The essential ingredient of
the Section is that the information given by the
Accused must lead to the discovery of the fact which is
the direct outcome of such information. Secondly, only
such portion of the information given as is distinctly
connected with the said recovery is admissible against
the accused. Thirdly, the discovery of the fact must
relate to the commission of some offence."
(emphasis supplied)
34. Further, there is no good reason for this Court to disbelieve the said
recoveries merely because the recovery witnesses happen to be police
officers. In this context, we rely on the case of Kripal Singh v. the
State of Rajasthan reported in (2019) 5 SCC 646. The germane
portion of the judgment is extracted below:
"21. The submission of the learned senior counsel for the
Appellant that recovery has not been proved by any
independent witness is of no substance for the reason that
in the absence of independent witness to support the
recovery in substance cannot be ignored unless proved to
the contrary. There is no such legal proposition that the
evidence of police officials unless supported by
independent witness is unworthy of acceptance or the
evidence of police officials can be out rightly
disregarded."
(emphasis supplied)
35. Keeping in view the facts of the present case and applying the
principles laid down by the Hon'ble Apex Court as well as on the basis
of corroborative testimonies of the material police witnesses, we find
no cogent reason to disbelieve the recovery made by the Investigating
Agency at the instance of the appellant as the testimonies of the
prosecution witnesses in relation to the recoveries made pursuant to the
disclosure statement are consistent, trustworthy and corroborative.
36. Further, at this stage, it is relevant to examine whether the medical
evidence adduced by the prosecution finds support from the testimony
of the prosecution witnesses. PW-17 Dr. Komal Singh, HOD,
Department of Forensic, DDU Hospital conducted the post-mortem on
the body of the deceased and proved the report as Ex.PW.17/A. Dr.
Komal Singh stepped into witness box as PW-17 and deposed that:-
"On 30.08.2011, I was posted as above. On that day I
conducted the postmortem on the dead body of Narender
aged about 44 years male. The dead body was sent by
Inspector Brij Mohan and Ct. Bhim Singh. On examination
of the dead body the rigor mortis was found passed off.
Postmortem staining was found over back. Body was highly
putrefied, swollen, having greenish discolouration with
marbeelling of skin. Nails were cyanosed.
Ligature material (appears to be a clutch wire) tied tightly
by a fixed knot around the neck. It is 32 cm in length.
During extricating it, a beaded wooden necklace which was
put on by the deceased got entangled with a wire.
While conducting the postmortem following external
injuries were found: -
Ligature mark is present around the whole neck except
on right lateral side of the neck (knot site) going obliquely
to left side the neck above the upper border of thyroid
cartilage in the form of band of size 0.4cm x 34cm x
0.2cm reddish brown in colour. Total neck circumference
is 34 cm. The upper border of ligature mark is 7 cm below
chin and the lower border is 10 cm above manubrium
sternil. The mark is 6 cm below right mastoid and 6 cm
below left mastoid. No other mark of fresh external
injuries is present over the body.
On external examination the following observation
regarding the neck was found: -
Hyoid Bone/ Thyroid Cartilage/Cricoid Cartilage/Tracheal
Rings & Mucosa/Any Foreign Body in Trachea: On
incision and dissection of neck, extravasations of blood
and clots seen underneath the ligature mark, underlying
tissue of neck, muscles, and up to the back of trachea.
Hyoid bone fractured at right greater comu with
contusions. Other all cartilages of neck are intact. Mucosa
of tracheal lumen is congested and tracheal lumen contains
froth.
Opinion: -
The cause of death was due to asphyxia subsequent to the
compression of neck created in a strangulation prepared
by steel wire tied around the neck. All injuries were ante
mortem and were off same duration.
Time since death was found approximately four days
prior to the postmortem. Manner of death was homicide.
Blood in gauze piece, clothes blood and viscera, anal
swab and ligature material (wire) were sealed and handed
over the IO. My detailed postmortem report is Ex.PW17/A
(running into 4 pages) which bears my signature at point
A."
37. Relevant portion from the Post Mortem report (Ex.PW.17/A) of the
deceased is reproduced herein below :-
"BRIEF HISTORY (As per inquest Papers):Alleged history of
found dead in a decomposed condition on 29.08.11 at 01.27
PM he was a 44 years male living in a rented house E-59,
Ground Floor, Kirti Nagar, New Delhi. A clutch wire was
tied around his neck.
GENERAL DESCRIPTION
Clothes worn & Their Condition: NIL
GENERAL EXAMINATION
• (sic.) : Passed off.
• Post Mortem Staining: Present over back.
• Body was highly putrefied, swollen, having greenish
discolouration, marbeelling of skin
• Condition of eyes : Closed with conjunctiva congested.
• Mouth/Tongue : Partially opened with anterior set
of teeth visible, tongue protruding out. Maggots of 1
cm size crawling all over the body.
• Nails cyanosed.
• Ligature material (appears to be a clutch wire) tied tightly by
a fixed knot around the neck. It is 32 cm in length. During
extricating it, a beaded wooden necklace which wasput on by
the deceased got entangled with a wire.
EXTERNAL EXAMINATION: External Injuries:
Ligature mark is present around the whole neck except on
right lateral side of the neck(knot site) going obliquely to left
side the neck above the upper border of thyroid cartilage in
the form of band of size 0.4cm x34cm x 0.2cm reddish brown
In colour. Total neck circumference Is 34 cm. The upper
border of ligature mark is 7 cm below chin and the lower
border is 10 cm above manubrium sternii. The mark is 6 cm
below right mastoid and 6 cm below left mastoid. No other
mark of fresh external injuries is present over the body.
INTERNAL EXAMINATION.
A- HEAD
A- Scalp: Subscalp congested.
B- Skull: NAD
C- Brain, Meninges & Vessels: Mild congested.
D- Base of skull: Intact.
E-NECK
1. Hyoid Bone / Thyroid Cartilage / Cricoid Cartilage / Tracheal
Rings & Mucosa / Any Foreign Body in Trachea: On incision
and dissection of neck, extravasation of Blood and clots seen
underneath the ligature mark, underlying tissue of neck,
muscles, and up to the back of trachea. Hyoid bone fracture
at right greater cornu with contusion. Other all cartilages of
neck are intact. Mucosa of tracheal lumen is congested and
tracheal lumen .........
2. CHEST (THORAX)
1. Ribs and Chest Wall : NAD
2. Oesophagus : NAD
3. Pleural Cavities : NAD
4. Lungs : Both lungs congested and
oedematous. On C/s & D/s of both lunge exudated froth
mixed with blood.
5. Heart and pericardial sac: NAD
6. Large blood vessels: NAD
F. ABDOMEN
1. Abdominal wall : NAD
2. Peritoneal Cavity : NAD
3. Stomach:
a Contents : Approx 500ml semi digested
food.
b. Mucosa : Mild congested
c. Abnormal Smell: None
4. Small intestine : Distended with gases.
5. Large intestine, vermiform appendix: Distended with
gases.
6. Liver, gall bladder, biliary passages : Mild Congested.
7. Spleen : Mild Congested
8. Kidney, renal pelvis, ureter: Mild Congested.
GENITAL ORGAN
1. Urinary Bladder : Empty
2. Rectum : Empty
3. Genital organs : NAD
4. Ulerus (Females) : NA.
SPINAL COLUMN: Intact
Preserved: Blood in a gauze piece
Clothes
Blood and viscera(Preserved in common salt)
Anal swab
Ligature material(Wire)
OPINION:
1. TIME SINCE DEATH: Approx four days prior to post-
mortem examination.
2. The cause of death is due to asphyxia subsequent to the
compression of neck in a strangulation prepared by steel wire tied
around the neck. All injuries are ante mortem and are of same
duration.
3. Blood and viscera to be send to the CFSL to rule out associated
poisoning.
4. Anal swab send for detecting presence of semen.
5. Manner of death is homicide."
38. A conjoint reading of the testimony of PW-17 Dr. Komal Singh and
the post-mortem report proves the fact that the deceased died 'due to
asphyxia subsequent to compression of neck created in a
strangulation prepared by steel wire tied around the neck' and all
injuries were ante-mortem in nature. Further, as per the Post Mortem
Report, Anal Swab of the deceased was forwarded to the FSL
department for detecting the presence of Semen.
39. Subsequently, it is relevant to highlight that (PW40) Ms. Manisha
Upadhyaya, Asst. Director (Biology), FSL Rohini carried out the
biological examination of all the exhibits forwarded in the parcels
which were sealed with seal of 'BM, DFMT DDU HOSPITAL' and
'CMO DDU HOSPITAL'. The relevant portion of her statement
recorded on 09.02.2018 is reproduced below-
"On 29.09.2011, 18 parcel in connection with FIR
No.256/2011 were duly received at the FSL office. All the
parcel were sealed with seal of BM, DFMT DDU
HOSPITAL and CMO DDU HOSPITAL. I had examined
all the exhibits and were serial numbered as exhibit 1 to
exhibit 18 (a & b). The details of the same have been
mentioned by me in my detailed report.
I have prepared the detailed biological report on
27.02.2012 which is running in three pages which is
already Ex.PW-38/X bearing my signature at all the pages
at point A. As per the analysis report the blood was
detected on exhibit 1, 2, 3, 4C, 5, 6, 7, 8, 9, 11, 12 and 14.
However, blood could not detected on exhibit 4A and 4B.
The human semen was detected on exhibit 13 but semen
could not detected on exhibit 1, 2, 4a, 4b, 4c, 5, 10, 15, 16,
17, 18a and 18b. The skin could not detected on exhibit 15
i.e., nail clippings. I had also prepared the serological
report which is already Ex. 30/Y which is bearing my
signature at point A. All the exhibits were re-sealed with
the seal of FSL MU DELHI."
40. Relevant portion from the Report No. FSL-2011/B-5829 (Ex.
PW38/X) is reproduced below :-
"Forensic Science Laboratory
Govt. of NCT of Delhi
Sector 14, Rohini, Delhi-110085.
Tel:011-27555811, Fax:011-27555890
Accredited by the National Accreditation Board for Testing
and Calibration Laboratories (NABL)
REPORT NO.FSL-2011/B-5829 BIO NO. 1165/11 Dated.
27.02.2012
1. Please quote the Report (Opinion) No. & Date in future
correspondence & Summons.
2. This report is Per se admissible u/s 293 Cr.P.C.
To,
The SHO,
PS: Kirti Nagar
New Delhi.
Your letter No. 4491/SHO/Kirti Nagar Dated: 29.09.11
regarding 18 (Eighteen) Parcels in connection with the
case FIR No.256/11 Dated 29.08.11 u/s: 302/411/34 IPC
P.S. Kirti Nagar duly received in this office 29.09.11.
DESCRIPTION OF PARCELS & CONDITION OF
SEALS
SEAL INTACT AS PER F.A.'s LETTER
Sealed cloth parcels 16 :
Sealed envelope 01 :
Sealed polythene 01 :
___
Total 18 (Eighteen)
____
DESCRIPTION OF ARTICLES CONTAINED IN
PARCEL
Parcel '1' : One sealed cloth parcel sealed with the
seal of "BM" containing exhibit '1'
marked as 'S-1'.
Exhibit '1' :One mattress having dirty brownish
blackish whitish stains.
Parcel '2' : One sealed cloth parcel sealed with the
seal of "BM" containing exhibit '2'
marked as 'S-2'.
Exhibit '2' : One mattress having dirty brownish
blackish whitish stains.
Parcel '3' : One sealed cloth parcel sealed with the
seal of "BM" containing exhibit '3'
marked as 'S-3'.
Exhibit '3' : Two pillows having dirty blackish
brownish stains.
Parcel '4' : One sealed cloth parcel sealed with the
seal of "BM" containing exhibit '4a',
'4b'and '4c' marked as 'S-4'.
Exhibit '4a' : One dirty foul smelling T-shirt.
Exhibit '4b' : One dirty brownish blackish foul
smelling Nikker.
Exhibit '4c' : One dirty brownish blackish foul
smelling bed sheet.
Parcel '5' : One sealed cloth parcel sealed with the
seal of "BM" containing exhibit '5'
marked as 'S-5'.
Exhibit '5' : One bed sheet having few dirty brown
stains.
Parcel '6' : One sealed cloth parcel sealed with the
seal of "BM" containing exhibit '6'
marked as 'S-6'.
Exhibit '6' : One hair wig.
Parcel '7' : One sealed cloth parcel sealed with the
seal of "BM" containing exhibit '7' mark
'A'.
Exhibit '7' : Dirty brownish blackish gauze cloth
piece kept in a plastic container described
as 'blood Guage'.
Parcel '8' : One sealed cloth parcel sealed with the
seal of "BM"containing exhibit '8' marked
'B'.
Exhibit '8' : Two pieces of marble having few dirty
stains described as 'Earth control' kept
inplastic container.
Parcel '9' : One sealed cloth parcel sealed with the
seal of "BM" containing exhibit'9' marked
'C".
Exhibit '9' : Scrapping material of the wall, kept in
plastic container.
Parcel '10' : One sealed polythene sealed with the seal
of "DFMT DDU HOSPITAL" containing
exhibit '10'.
Exhibit '10' : Dirty cotton wool swab on a stick kept in
plastic container described as "Anal
swab".
Parcel '11' :One sealed envelope sealed with the seal
of "DFMT DDU HOSPITAL" containing
exhibit '11'.
Exhibit '11' : Yellowish light, brown gauze cloth piece
described as 'blood gauge'.
Parcel '12' : One sealed cloth parcel sealed with the
seal of "CMO DDU HOSPITAL"
containing exhibit '12'.
Exhibit '12' : Brown gauze cloth piece kept in plastic
container described as 'blood sample'.
Parcel '13' : One sealed cloth parcel sealed with the
seal of "CMO DDU HOSPITAL"
containing exhibit '13'.
Exhibit '13' : Dirty yellowish gauze cloth piece kept in
plastic container described as 'Semen'.
Parcel '14' : One sealed cloth parcel sealed with the
seal of "CMO DDU HOSPITAL"
containing exhibit '14'.
Exhibit '14' : Brown gauze cloth piece kept in plastic
container described as 'blood sample'.
Parcel '15' : One sealed cloth parcel sealed with the
seal of "CMO DDU HOSPITAL"
containing exhibit '15'.
Exhibit '15' : Few nail clippings kept in plastic
container.
Parcel '16' : One sealed cloth parcel sealed with the
seal of "CMO DDU HOSPITAL"
containing exhibit '16'.
Exhibit '16' : Few strands of hair kept in plastic
container described as 'Public hair'.
Parcel '17' : One sealed cloth parcel sealed with the
seal of "CMO DDU HOSPITAL"
containing exhibit '17'.
Exhibit '17' : One underwear having dirty blackish
stains.
Parcel '18' : One sealed cloth parcel sealed with the
seal of "BM" containing exhibits '18a' and
'18b'.
Exhibit '18a' : One pant's having dirty stains.
Exhibit '18b' : One dirty shirt.
RESULTS OF ANALYSIS
1. Blood was detected on exhibits '1', '2', '3', '4c', '5',
'6', '7', '8', '9', '11', '12' and '14'.
2. Blood could not be detected on exhibits '4a' and '4b'.
3. Human semen was detected on exhibit '13'.
4. Semen could not be detected on exhibits '1', ' 2',
'4a', '4b', '4c ', '5', '10', '15', "16','17', '18a' and
'18b'.
5. Skin could not be detected on exhibit '15'.
6. Report of serological analysis in original is attached
herewith.
NOTE: Remnants of the exhibits have been sealed with the
seal of 'FSL MU DELHI'."
41. Perusal of the FSL report evidently establishes the fact that Semen
was not detected on Exhibit '1'(One Mattress having dirty brownish
blackish whitish stains), Exhibit '2'(One Mattress having dirty
brownish blackish whitish stains), Exhibit '4a'(One dirty foul
smelling T-Shirt), Exhibit '4b'(One dirty brownish blackish foul
smelling Nikker), Exhibit '4c'(One dirty brownish blackish foul
smelling bed sheet), Exhibit '5'(One bed sheet having few dirty
brown stains), Exhibit '10'(Dirty cotton wool swab on a stick kept in
plastic container described as 'Anal Swab'), Exhibit '15'(Few Nail
clippings kept in plastic container), Exhibit '16'( Few Strands of hair
kept in plastic container described as 'Pubic Hair'), Exhibit
'17'(One underwear having dirty blackish stains), Exhibit '18a'(One
pants having dirty stains) and Exhibit '18b'(One dirty shirt).
42. Perusal of the aforesaid FSL report also establishes the fact that there
is no evidence on record to prove that there was sexual relationship
between the appellant and the deceased or they used to get involved
in anal intercourse because had there been full-fledged sexual
intercourse, there would have been semen detected on the Anal Swab
of the deceased and therefore, in the absence of such an evidence, it
is doubtful whether there was any such act alleged to have been
committed by the appellant.
43. Further, during the course of arguments, learned counsel for the
appellant contended that the prosecution in the present case relied
upon the report tendered by the Finger Print Expert of the Delhi
Police Fingerprint Bureau and the same cannot be considered as the
sole ground for connecting the appellant with the commission of the
alleged offence. (PW-32) SI Sushil Kumar had proved the aforesaid
Finger Print Report as Ex.PW32/A and relevant portion from his
testimony is reproduced herein below:-
"On 10.10.2011, I received the relevant documents of
FIR No.256/11 u/s 302/411/34 IPC P.S. Kirti Nagar i.e.
copy of scene of crime, negatives and photographs of
chance prints Mark Q-1 to Q-7, specimen of two
accused namely Pradeep Kumar and Kamal Kishor
along with a forwarding letter issued by the SHO P.S.
Kirti Nagar for examination of finger prints and expert
opinion. The said negatives, photographs and documents
were marked to me for examination. I had examined the
case and found that the chance print Q-5 was identical
with right thumb impression Mark S-1 on finger
impression sheet of Pradeep Kumar (accused in this
case) r/o Village Bilhari P.S. Shahbad, District Hardoi,
U.P. The remaining chance print Mark Q-1 to Q-4, Q-6
and Q-7 were found partial and smudged and do not
disclose sufficient number of ridge details in their
relative position for comparison, hence, they were found
unfit for comparison/search.
Duly mark enlarged photographs of identical prints Q-
5 and S-1 along with description of point of identity
were enclosed with the report. My detailed report in
this regard is Ex.PW32/A bearing my signature at
point A and countersigned by the Director Mr. R.K.
Vajpayee at point B. The enlarged photographs are
Ex.PW32/B and Ex.PW32/C and description report is
Ex.PW32/D bearing my signature at point A
countersigned by the Director Mr. R.K. Vajpayee at
point B."
44. Relevant portion from the report of the Finger Print Bureau is
reproduced herein below:-
"Finger Print Report
"I RECEIPT
A Received a copy of scene of crime examination
report bearing S.No. 790/11 dated 29.08.11 along with
lifts of chance prints marked Q1 to Q7 from West Distt.
Crime investigation team.
B Received photographs of chance prints marked
Q1 to Q7 along with their negatives from police
photographer for examination which were developed by
West Distt. Crime investigation team.
C Received a Letter vide FPB diary No.
797/CW/FPB dated 05.10.11 from SHO-Kirti Nagar in
the abovementioned case along with specimen
finger/palm print slips of the following persons viz: -
1. Pradeep Kumar S/o Bahaiya Lal.
(Accused)
2. Kamal Kishore S/o Data Ram -do-
II QUESTIONNAIRE:
1. Whether chance prints marked Q1 to Q7 are
IDENTICAL with any of the finger prints of the persons
mentioned at Para-I (C) or Not?
2. Whether chance prints marked Q1 to Q7 are
IDENTICAL with any of the finger prints on the record
of the Bureau or not?
III RESULT OF EXAMINATION:
1. Chance print marked Q5 is IDENTICAL with
Right Thumb impression marked S-I on the finger
impression slip of Pardeep Kumar S/o Bahaiya Lal
(Accused) R/o Vill. Bilhari PS Shah Bad Distt. Hardoi
UP.
2. Chance prints marked Q1 to Q4, Q6 & Q7 are
partial & smudged and do not disclose sufficient no. of
ridge details in their relative positions for comparison,
hence they are UNFIT for comparison/search."
45. Perusal of the aforesaid report establishes the fact that the crime team
inspected the scene of crime on 29.08.2011 and lifted chance prints
marked Q1 to Q7 and from the above acknowledged chance prints,
Q-5 was found to be identical with the thumb impression (Mark S-1)
of the appellant. At this stage, we have no hesitation to hold that the
aforementioned scientific evidence evidently connects the chain of
circumstances and proves the involvement of the appellant in the
commission of the alleged offence.
46. Further it is relevant to highlight that the appellant in his statement
recorded under Section 313 Cr.P.C has simply denied the allegations
made against him and from the above discussion and the scientific
evidence produced on record, it is clear that the chance print Q-5 was
found to be identical with the thumb impression (Mark S-1) of the
appellant. Therefore, no explanation is given by the appellant as to
how his fingerprint was detected from the scene of crime. Relevant
portion from the statement of the accused recorded under 313 Cr.P.C
is reproduced herein below:-
Q36:- it is in evidence against you that PW-32 SI Sushil
Kumar, Finger PRINT Expert has proved the Finger print
report as Ex.PW32/A, the enlarged photographs as
Ex.PW32/B and Ex.PW32/C and the description report as
Ex.PW32/D. What do you have to say?
A:- It is incorrect.
47. The Apex Court in the case of Prahlad vs. State of Rajasthan
reported in 2018 SCC Online SC 2548 held that silence of the
accused in the statement recorded under Section 313 Cr.P.C about
matters he/she is expected to explain leads to an adverse inference
against them. Germane portion of the judgment is extracted below -
"9. No explanation is forthcoming from the statement of the
accused under Section 313 Cr.P.C. as to when he parted the
company of the victim. Also, no explanation is there as to
what happened after getting the chocolates for the victim.
The silence on the part of the accused, in such a matter
wherein he is expected to come out with an explanation,
leads to an adverse inference against the accused."
(emphasis supplied)
48. It is well-settled law that the burden of proof is on the prosecution, to
establish its case beyond reasonable doubt, especially in a case based
on circumstantial evidence, by completing the chain of incriminating
circumstances so complete that the needle of guilt is pointing only
and conclusively towards the culpability of the appellant. It is only,
when such a burden is discharged by the prosecution that the onus
shifts on to the accused to prove any fact within his special
knowledge, to establish that he is not guilty of the aforesaid alleged
offence.
49. Since, the appellant failed to offer an explanation in his statement
recorded under Section 313 Cr.P.C, with regard to the fact within his
special knowledge, the burden of proof eventually shifts from the
shoulder of the prosecution, as the appellant ought to have explained
the incriminating circumstance pointing against him. Section 106 of
the Indian Evidence Act, 1872, reads as under:
"106. Burden of proving fact especially within knowledge.-
when any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him."
50. Section 106 of the Indian Evidence Act, 1872 has been interpreted
and analyzed by the Apex Court as well as by the Division Bench of
this Court in a catena of cases. In State of W.B. vs. Mir Mohammad
Omar & Ors., reported in (2000) 8 SCC 382, the Supreme Court has
observed as under:-
"31. The pristine rule that the burden of proof is on the
prosecution to prove the guilt of the accused should not be
taken as a fossilised doctrine as though it admits no process
of intelligent reasoning. The doctrine of presumption is not
alien to the above rule, nor would it impair the temper of
the rule. On the other hand, if the traditional rule relating
to burden of proof of the prosecution is allowed to be
wrapped in pedantic coverage, the offenders in serious
offences would be the major beneficiaries and the society
would be the casualty.
32. In this case, when the prosecution succeeded in
establishing the afore-narrated circumstances, the court has
to presume the existence of certain facts. Presumption is a
course recognised by the law for the court to rely on in
conditions such as this.
33. Presumption of fact is an inference as to the existence of
one fact from the existence of some other facts, unless the
truth of such inference is disproved. Presumption of fact is a
rule in law of evidence that a fact otherwise doubtful may
be inferred from certain other proved facts. When inferring
the existence of a fact from other set of proved facts, the
court exercises a process of reasoning and reaches a
logical conclusion as the most probable position. The above
principle has gained legislative recognition in India when
Section 114 is incorporated in the Evidence Act. It
empowers the court to presume the existence of any fact
which it thinks likely to have happened. In that process the
court shall have regard to the common course of natural
events, human conduct etc. in relation to the facts of the
case.
34. When it is proved to the satisfaction of the Court that
Mahesh was abducted by the accused and they took him out
of that area, the accused alone knew what happened to him
until he was with them. If he was found murdered within a
short time after the abduction the permitted reasoning
process would enable the Court to draw the presumption
that the accused have murdered him. Such inference can be
disrupted if the accused would tell the Court what else
happened to Mahesh at least until he was in their custody.
xxx xxx xxx
37. The section is not intended to relieve the prosecution of
its burden to prove the guilt of the accused beyond
reasonable doubt. But the section would apply to cases
where the prosecution has succeeded in proving facts from
which a reasonable inference can be drawn regarding the
existence of certain other facts, unless the accused by
virtue of his special knowledge regarding such facts, failed
to offer any explanation which might drive the court to
draw a different inference.
(emphasis supplied)
51. In Ram Gulam Chaudhary & Ors. vs. State of Bihar, reported in
(2001) 8 SCC 311, the Supreme Court has held as under:-
"24. Even otherwise, in our view, this is a case where
Section 106 of the Evidence Act would apply. Krishnanand
Chaudhary was brutally assaulted and then a chhura-blow
was given on the chest. Thus chhura-blow was given after
Bijoy Chaudhary had said "he is still alive and should be
killed". The appellants then carried away the body. What
happened thereafter to Krishnanand Chaudhary is especially
within the knowledge of the appellants. The appellants have
given no explanation as to what they did after they took
away the body. Krishnanand Chaudhary has not been
since seen alive. In the absence of an explanation, and
considering the fact that the appellants were suspecting the
boy to have kidnapped and killed the child of the family of
the appellants, it was for the appellants to have explained
what they did with him after they took him away. When the
abductors withheld that information from the court, there
is every justification for drawing the inference that they
had murdered the boy. Even though Section 106 of the
Evidence Act may not be intended to relieve the prosecution
of its burden to prove the guilt of the accused beyond
reasonable doubt, but the section would apply to cases like
the present, where the prosecution has succeeded in proving
facts from which a reasonable inference can be drawn
regarding death. The appellants by virtue of their special
knowledge must offer an explanation which might lead the
Court to draw a different inference. We, therefore, see no
substance in this submission of Mr Mishra."
(emphasis supplied)
52. In Trimukh Maroti Kiran Vs. State of Maharashtra, reported in
(2006) 10 SCC 681 the Supreme Court has held as under:-
"14. If an offence takes place inside the privacy of a house
and in such circumstances where the assailants have all
the opportunity to plan and commit the offence at the time
and in circumstances of their choice, it will be extremely
difficult for the prosecution to lead evidence to establish
the guilt of the accused if the strict principle of
circumstantial evidence, as noticed above, is insisted upon
by the courts. A judge does not preside over a criminal trial
merely to see that no innocent man is punished. A judge also
presides to see that a guilty man does not escape. Both are
public duties. (See Stirland v. Director of Public
Prosecutions [1944 AC 315: (1944) 2 All ER 13 (HL)] --
quoted with approval by Arijit Pasayat, J. in State of Punjab
v. Karnail Singh [(2003) 11 SCC 271 : 2004 SCC (Cri)
135]. The law does not enjoin a duty on the prosecution to
lead evidence of such character which is almost impossible
to be led or at any rate extremely difficult to be led. The duty
on the prosecution is to lead such evidence which it is
capable of leading, having regard to the facts and
circumstances of the case. Here it is necessary to keep in
mind Section 106 of the Evidence Act which says that when
any fact is especially within the knowledge of any person,
the burden of proving that fact is upon him. Illustration (b)
appended to this section throws some light on the content
and scope of this provision and it reads: ―
"(b) A is charged with travelling on a railway without
ticket. The burden of proving that he had a ticket is on
him."
15. Where an offence like murder is committed in secrecy
inside a house, the initial burden to establish the case
would undoubtedly be upon the prosecution, but the nature
and amount of evidence to be led by it to establish the
charge cannot be of the same degree as is required in other
cases of circumstantial evidence. The burden would be of a
comparatively lighter character. In view of Section 106 of
the Evidence Act there will be a corresponding burden on
the inmates of the house to give a cogent explanation as to
how the crime was committed. The inmates of the house
cannot get away by simply keeping quiet and offering no
explanation on the supposed premise that the burden to
establish its case lies entirely upon the prosecution and there
is no duty at all on an accused to offer any explanation.
xxxx xxxx xxxx xxxx
22. Where an accused is alleged to have committed the
murder of his wife and the prosecution succeeds in leading
evidence to show that shortly before the commission of crime
they were seen together or the offence takes place in the
dwelling home where the husband also normally resided, it
has been consistently held that if the accused does not offer
any explanation how the wife received injuries or offers an
explanation which is found to be false, it is a strong
circumstance which indicates that he is responsible for
commission of the crime......."
(emphasis supplied)
53. Keeping in view the law laid down above, it stands settled that when
an incriminating circumstance is put to the accused and the said
accused either offers no explanation or offers an explanation which is
found to be untrue, then the same becomes an additional link in the
chain of circumstances to make it complete. Consequently, this Court
is of the view that the appellant has failed to discharge the burden of
proving the facts especially within his knowledge.
54. Further it is relevant to highlight that it is a settled law that the
inability of the prosecution to establish motive is not always fatal to
the case of the prosecution and does not render any benefit to the
accused, as the proof of motive will only be an important
corroborative piece of evidence. Very recently, this bench in the case
of Runeet Gulathi vs State, 2019 SCC OnLine Del 10208 had an
occasion to explain the relevance of motive in a case of
circumstantial evidence. The relevant portion of the said judgment is
reproduced herein below:
"121. It is settled law that motive is not a necessary element
in deciding culpability but it is equally an important missing
link which can be used to corroborate the evidence where
conviction is based on circumstantial evidence. The Apex
Court on several occasions has considered the law
regarding basing of conviction by the Court on
circumstantial evidence. It is useful to refer to the judgment
of the Apex Court in Gambhir v. State of
Maharashtra, (1982) 2 SCC 351, wherein the Apex Court
had laid down that circumstances from which an inference
of guilt is sought to be drawn, must be cogently and firmly
established. Referring to the above judgment
of Gambhir v. State of Maharashtra (supra), principles were
again reiterated by the Supreme Court in K.V.
Chacko v. State of Kerala, (2001) 9 SCC 277, wherein
following law was laid down in paragraph 5:
"5. The law regarding basing a conviction by the
Courts on circumstantial evidence is well settled.
When a case rests upon the circumstantial evidence,
such evidence must satisfy three tests: (1) the
circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly
established (2) those circumstances should be of a
definite tendency unerringly pointing towards guilt of
the accused; (3) the circumstances, taken
cumulatively, should form a chain so complete that
there is no escape from the conclusion that within all
human probability the crime was committed by the
accused and none else. The circumstantial evidence in
order to sustain conviction must be complete and
incapable of explanation of any other hypothesis than
that of the guilt of the accused. The circumstantial
evidence should not only be consistent with the guilt
of the accused but should be inconsistent with his
innocence."
(emphasis supplied)
122. With regard to the importance of establishing motive in
a case of circumstantial evidence, the Hon'ble Supreme
Court of India in a very recent judgment titled as Sukhpal
Singh v. State of Punjab reported in 2019 SCC OnLine SC
178, has held that the inability of the prosecution to
establish motive in a case of circumstantial evidence is not
always fatal to the prosecution case. Relevant part from the
aforesaid judgment is extracted below:
"15. The last submission which we are called upon to
deal with is that there is no motive established against
the Appellant for committing murder. It is undoubtedly
true that the question of motive may assume
significance in a prosecution case based on
circumstantial evidence. But the question is whether in
a case of circumstantial evidence inability on the part
of the prosecution to establish a motive is fatal to the
prosecution case. We would think that while it is true
that if the prosecution establishes a motive for the
accused to commit a crime it will undoubtedly
strengthen the prosecution version based on
circumstantial evidence, but that is far cry from
saying that the absence of a motive for the
commission of the crime by the accused will
irrespective of other material available before the
Court by way of circumstantial evidence be fatal to
the prosecution. In such circumstances, on account of
the circumstances which stand established by evidence
as discussed above, we find no merit in the appeal and
same shall stand dismissed."
(emphasis supplied)
123. Herein it is relevant to highlight that in the case based
on circumstantial evidence, proof of motive will be an
important corroborative piece of evidence but the inability
of the prosecution to establish motive in a case of
circumstantial evidence is not always fatal to substantiate
their version."
55. Consequently, it is settled legal proposition that absence of motive as
alleged, is of no consequence when evidence on record establishes
the crime. Undoubtedly, if the genesis of the motive of the
occurrence is not proved by the prosecution, the testimony of the
witnesses as to the occurrence cannot be discarded only by the reason
of the absence of motive.
56. Hence in our view, after considering and re-appreciating the entire
evidence in the light of arguments, we are of the considered view that
the chain of circumstances are so well inter-connected and complete
which rules out any possibility that there can be any other person
other than appellant who had committed the offence. The
circumstances from which an inference of guilt is drawn are cogently
and firmly established and the circumstances have a definite
tendency unerringly pointing towards the guilt of the appellant.
57. However, a perusal of the record transpires that the medical evidence
on record does not support the case of prosecution on the aspect that
there were sexual relationships between the appellant and the
deceased because no semen was detected on the Anal Swab of the
deceased and in the absence of such evidence it is doubtful as to
whether the alleged act has been committed by the appellant. In this
background, punishment for the offence punishable under Section
377 IPC against the Appellant/Pradeep Kumar without any
substantive evidence is unwarranted.
58. Accordingly, the present appeal is partly allowed. The conviction
under Sections 302/404 IPC is upheld. The conviction and sentence
under Section 377 IPC is set aside. The appeal therefore is disposed
of.
59. Copy of the order be communicated to the Trial Court as well as to
the Jail Superintendent, Tihar Jail.
60. Trial Court record be sent back along with a copy of this order
SANGITA DHINGRA SEHGAL, J.
MANMOHAN, J.
FEBRUARY 20, 2020
SU
