STATE Vs. SURENDER @ KALWA

JUDGEMENT

(1.) By Death Sentence Reference 4/2013, the State seeks confirmation of the sentence of death awarded to the respondents. Vide Crl. A. No. 1269/2013, appellant Virender @ Mintu and Crl.A. No. 1445/2013 appellants Surender @ Kalwa and Vijay Pal respectively challenge the judgment dated August 03, 2013 convicting the appellants for offences punishable under Sections 302, 392 read with 394/34 IPC. Vide order on sentence dated September 12, 2013, the appellants were awarded rigorous imprisonment for a period of 10 years and a fine of Rs. 10,000/- for offence punishable under Section 392 read with Section 394 IPC and for offence punishable under Section 302 IPC, the appellants were awarded capital punishment, subject to the confirmation by this Court.

(2.) Opening the Reference, learned APP for the State submitted that the present case is one of strong circumstantial evidence involving the murder of three members of the family i.e. Mridula Kishore, her son Rajesh Kishore and grandson Ankit Kishore. PW-1 Jugal Kishore, husband of deceased Mridula Kishore though not an eye-witness had a talk with Mridula Kishore at about 1 O'clock in the noon when the deceased Mridula Kishore stated that Surender @ Kalwa, Virender @ Mintu and Vijay Pal had come to their house and she was cooking meal for them and thus she would talk to him later on. Jugal Kishore, while being at Mathura, made another call at 2.30 at his residence at Delhi, however nobody picked up the same. At about 10.45 PM, his Boss called him on the telephone about some mis-happening, which he witnessed on the television and thus dropped him at the bus stop to board a bus for Delhi. Learned APP for the State submits that Jugal Kishore gave the first lead in the case. His evidence is corroborated by PW-21 M.S. Jatav. Further, there is recovery of jewellery of the deceased from the pockets and at the instance of the appellants, which have been duly identified. Blood stained clothes of the three appellants have also been recovered and the blood group thereon tallied with that of the deceased. In the crossexamination of the prosecution witnesses, there is no challenge to the recoveries made. The main attack is on the Jugal Kishore and delay in recording his statement. Thus, from the circumstantial evidence, the prosecution has proved the case beyond reasonable doubt and the conviction of the appellants be upheld and the sentence be confirmed.

(3.) Learned counsel for the appellant Virender @ Mintu assailing the prosecution case contends that the version of Jugal Kishore which is the basis of the prosecution case is highly unnatural. Though M.S.Jatav states that Jugal Kishore worked in all the three shifts, however Jugal Kishore stated that he went home to sleep in the afternoon. It is highly improbable that after making two calls to Delhi at about 2.30 PM and 7.30 PM and despite there being no reply, he made no effort to contact the family members or relatives to find as to whether everything was all right at Delhi. The report of the post-mortem regarding Ankit is contrary to the disclosure statement of the accused. The entire prosecution case is based on the fact that Jugal Kishore made a call to the deceased Mridula at about 1 PM on the fateful day however, the prosecution has failed to prove the call details. No authentic evidence has been produced by PW-18 Balbir Singh to show that the data relating to call details of February 05, 2004 had got corrupted and thus an adverse inference be drawn against the prosecution. It is highly improbable that on the same day, the Police despite starting in the afternoon, drove to the villages of all the three appellants and made recoveries from their houses. No D.D. entries were made in the local Police Stations at the villages of the appellants nor were any public witnesses associated. There is discrepancy in the statement of the witnesses with regard to the recovery and the number of vehicles on which they went to the villages of the appellants. The recoveries have been planted on the appellants and actually the Police did not go to their house. No recovery has been attributed to Virender @ Mintu from his pocket and only in cross-examination by the learned APP, this fact has been put to the witness.