SUDHIR Vs. STATE

JUDGEMENT

(1.) SUDHIR Kumar impugns his conviction under Section 302 of the Indian Penal Code, 1860 (IPC) vide the judgment dated 27th October, 2009, for murder of Pawan @ Pummi in the night intervening between 13th and 14th July, 2006 on the First Floor of the House No. 62, Gali No. 1, Rumal Singh Gate, Saboli Extension, Delhi. By the order on sentence dated 29th October, 2009, the appellant has been sentenced to undergo life imprisonment and fine of Rs. 3,000/ - has been imposed. In default of payment of fine, the appellant has to undergo Simple Imprisonment of six months. Learned counsel appearing for the appellant has contested the impugned judgment on the ground that Than Singh (PW -5) is not a credible witness and his conduct was suspicious as he or his family members did not see the dead body. In fact, the police had initially suspected him as the culprit of the crime and had detained him for 4/5 days. It is submitted that the prosecution has not been able to prove the "alleged motive" as Sekhar (PW -16) had turned hostile. There was no recovery of any document or belongings of the appellant from the room in question and, therefore, there is no evidence to show and establish that the appellant was residing as a tenant in the room, where the dead body of Pawan was found. He has submitted that finger prints/chance prints of the appellant were not lifted from the crime spot and sent for examination. It is submitted that the neighbours and residents of the locality did not join the investigation and their statements were not recorded. It is urged that Shri Pal was an important witness, but he was not examined in the Court.

(2.) DEATH of Pawan @ Pummi under unnatural circumstances in the intervening night of 13th and 14th July, 2006 is not under challenge. The factum that the dead body of the deceased Pawan was found in the room on the First Floor of House No. 62, Gali No. 1, Rumal Singh Gate, Saboli Extension, Delhi, is proved beyond doubt. The post mortem report (Ex.PW -19/A) has been proved by Dr. Barkha Gupta (PW -19). She has deposed that she had conducted the autopsy on 15th July, 2006 between 11:30 am to 1:00 p.m. According to PW -19, dead body was of an adult male, aged about 30 years, who was wearing a white vest, brown underwear and a blue pyjama. Serosangunous fluid was oozing from the mouth and the nostril. Changes consequent upon decomposition were present on the face. The face was bloated up with greenish discolouration. Marbling was present on upper part of the chest and both arms. Rigor mortis was in a passing stage. Ligature mark was present on the neck, but no ligature material was available. The post mortem report (Ex.PW -19/A) records the following external ante -mortem injuries: -

(3.) ANAND Kumar (PW -3) is the brother of the deceased Pawan @ Pummi. He has testified that the deceased used to do welding work along with one Sanjay(PW -17). The deceased came to his house on 13th July, 2006 in the noon time and at about 5.30 p.m., the deceased had left with the appellant -Sudhir, whom he identified in the court. The deceased Pawan had informed him that he would not be coming back to the house at night and would be staying with the appellant in his rented accommodation at Sobti Extension. On the next date i.e. 14th July, 2006, when his brother did not return, he went to the house in question at about 2 p.m. and met Than Singh (PW -5), the landlord, who informed him that the deceased and the appellant had come to the said place at about 10:00 p.m. and spent the night in the room. Sudhir, the appellant had left the room at about 5.00 a.m. on the morning of 14th July, 2006. PW -3 thereafter went to the first floor and found that the door of the room in question was slightly open. He opened the door and found that his brother Pawan @ Pummi was lying dead on the ground. There were marks on the neck of the dead body. He raised noise, whereupon Than Singh (PW -5) also came there. He asked PW -5 to lodge a report with the police and came back to his house to inform his relatives about the death of Pawan. Thereafter, he went back to the spot along with his relatives and his statement (Ex.PW -3/A), which bears his signature at point A, was recorded by police official. Post mortem of the dead body was conducted and the same was handed over to him for cremation. On 17th July, 2006, police officers came to him and informed that they had received information that the appellant would come to meet Sanjay (PW -17) at Saboli Industrial Area. On identification by PW -3, the appellant was arrested. PW -3 proved the arrest memo of the appellant, Ex.PW -3/B, which was signed by him at point A and personal search memo of the appellant, Ex.PW -3/C. The examination -in -chief of PW -3 was recorded on 17th September, 2007, but his cross -examination was deferred. The cross -examination was closed on 21st November, 2007, after recording "NIL (Opportunity given)". However, it appears that subsequently an application under Section 311 of the Code of Criminal Procedure, 1973 (Cr.P.C.) was filed and thereafter PW -3 was cross -examined on 15th February, 2008 on behalf of the appellant. In his cross -examination PW -3 has deposed that he had come to know the appellant -Sudhir about 15 days prior to death of his brother Pawan. The deceased while leaving the house on 13th July 2007 was wearing a pyjama with "checkdar" matching shirt. He has deposed that before 14th July, 2006, he had not gone to the house of Than Singh (PW -5) and one Pal, who was a friend of the appellant, had told him the address of the place where the Appellant resided. The said Pal had accompanied him to the house of Than Singh (PW -5), where he met Than Singh. The room on the first floor was not locked or bolted and his brother was wearing the same Pyjama and vest, which he was wearing on 13th July, 2006. Shirt of deceased was lying outside the room on a rope. Than Singh (PW -5) initially had not come with him to the first floor, but came there after PW -3 raised an alarm. Near the dead body, two empty bottles of beer and one empty half bottle of whisky (English) were lying. He did not notice whether any glass or eating material was lying there or not. He had reached the house of Than Singh (PW -5) at about 2.00 p.m. and after 10/15 minutes; he left the place to inform his relatives after asking PW -5 to lodge a report with the police. PW -3's village was in district Ghaziabad. He had reached the house of the appellant on his motorcycle and it took him about 10 -15 minutes to reach there. After seeing the dead body of his brother, he came back to the room of the appellant along with Pal and some other neighbours. PW -3 identified the said Pal as Shri Pal whose statement was recorded by the police in his presence. Blood was not lying on the floor of the room, but mouth of Pawan was slightly open and his teeth were visible. PW -3 signed some documents, but he did not remember whether Shri Pal had signed any document. On 17th July, 2006, at about 7/7.30 p.m., 4 -5 police officials had come to his house in Gypsy, but no police from U.P. Police had come there. Thereafter, the police brought him to Saboli Industrial Area where the appellant was found standing near Shivani Dharam Kanta and he was arrested. He deposed that he had last seen the deceased with the appellant leaving his house on foot. He voluntarily deposed that the appellant was on visiting terms with Shri Pal. The police had sealed the room but before that they had taken photographs of the dead body. He did not remember whether fingerprints/chance prints were lifted from the spot. From the search of the appellant, Voter's Identity Card of his brother i.e. the deceased was recovered in his presence and the police had kept the said card with them.