KAMLESH SINGH Vs. STATE

JUDGEMENT

(1.) The present appeal under Section 374 (2) of the code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C) preferred by the appellant is directed against the judgment dated 16th February, 2010 and order on sentence dated 23rd February, 2010 passed by the learned Additional Sessions Judge, Patiala House Courts, New Delhi whereby the ld. ASJ held the appellant guilty of committing an offence under Section 302 of the Indian Penal Code, 1806 (hereinafter referred to as IPC) and awarded him sentence of life imprisonment for the said offence of murder.

(2.) Before adverting to the contentions raised by both the parties and giving any findings on the said submissions, it would be appropriate to give a brief conspectus of facts. In a small tenanted room, four persons were sleeping during the intervening night of 21-22.02.2005 of 2005 comprising of PW-22 Kusuma, her husband Karu (deceased), her maternal uncle Kamlesh Singh (the appellant herein) and Shivam aged 12 years, son of Kusuma from her previous husband. At about 2/2.30 a.m., murder of Karu took place but surprisingly nobody came forward to depose having personally seen the said murder to have taken place. Kusuma in her statement recorded under Section 161 Cr.P.C. implicated her maternal uncle, the appellant herein as a murderer of her husband, while the appellant took a defence that there was some thief who had entered the room and he along with Shivam ran after the thief to apprehend him. Among the said four occupants in the room, one was murdered, second was a small boy, third was the wife of the deceased and fourth was the maternal uncle of the wife. Who could be the murderer of deceased "Karu" was a question to be answered by the prosecution. As per the prosecution, it was the appellant who had murdered Karu, but as per the appellant, somebody else had murdered Karu and in likelihood of circumstances, it was a thief who had entered the premises and later ran away or may be one Mr.Tulsi who was residing in the adjoining room, who allegedly had illicit relations with the wife of the deceased had made the said attempt.

(3.) The case of the prosecution in a nutshell is that on 22.2.2005 at 2.38 a.m. DD No.59B was recorded on the basis of information received in police station Sangam Vihar that one person is lying injured in H.No.709, Sangam Vihar, Budh Bazar. The copy of DD No.59B was given to SI Harinder Singh who along with Ct. Virender and Ct. Dalchan went to the spot at H.No.709, Gali No.9, Sangam Vihar and at the first floor of the aforesaid premises they found one dari (bed sheet), one shawl and one pillow with excess blood on it and they came to know that the injured has already been taken to the hospital in a PCR van. Thereafter, SI Harinder Singh left Ct. Virender at the spot for proper investigation and went along with Ct. Dalchand to AIIMS hospital where he obtained the MLC of the injured Karu S/o Sukhram Singh. The injured was unconscious and was unfit for statement as per the opinion of the doctor concerned. SI Harinder Singh, got the case registered, under Section 307 IPC, and did not find any eye-witness there. He made request for crime team and a photographer to visit the spot. In the meantime, duty constable in AIIMS hospital informed vide DD No.62B in the police station that injured has expired. Thereafter, the offence was converted from 307 to 302 IPC. The investigating crime team inspected the spot and photographs were taken. The site plan was prepared by the investigating officer and samples from the site were taken in possession by the police. The statements of witnesses were recorded. The post mortem of the victim was conducted and post mortem report was obtained. Thereafter, the accused was arrested whose disclosure statement was recorded and at the instance of the accused, an axe was recovered by the accused from a small kitchen adjoining the room in question which was taken in possession by the police. The accused also got recovered his blood stained shirt which he was wearing at the time of the incident which was taken in possession by the police. On completion of investigation, accused was challaned for the offence under Section 302 IPC.