Crl. A. 711/2014. Case: Kundan Singh Vs The State. High Court of Delhi (India)

Case NumberCrl. A. 711/2014
CounselFor Appellant: Ajay Verma, Neha Singh and Ananya Mitra, Advocates and For Respondents: Ashaa Tiwari, A.P.P. and K.P. Kukreti, ACP
JudgesSanjiv Khanna and R. K. Gauba, JJ.
IssueCode of Criminal Procedure, 1973 (CrPC) - Sections 171, 311, 313, 391, 428; Indian Evidence Act, 1872 - Sections 114, 22A, 3, 45A, 59, 60, 62, 63, 64, 65, 65A, 65B, 65B(4), 8, 91, 92; Indian Penal Code 1860, (IPC) - Sections 201, 302, 404; Information Technology Act, 2000 - Sections 2(c), 79A
Judgement DateNovember 24, 2015
CourtHigh Court of Delhi (India)


Sanjiv Khanna, J.

  1. In this appeal, Kundan Singh challenges judgment dated 18th January, 2014, passed in S.C. No. 32/2008 arising out of charge sheet filed in FIR No. 592/07, Police Station Mehrauli, convicting him under Section 302 of the Indian Penal Code, 1860 (IPC, for short) for murder of his friend Vipin Kumar. The appellant has also been convicted under Section 201 and 404 IPC.

  2. By order on sentence dated 21st January, 2014, the appellant has been sentenced to imprisonment for life, fine of Rs. 15,000/- for the offence under Section 302 IPC with a direction that in default of payment of fine, the appellant shall undergo rigorous imprisonment of one year. For the offence under Section 201 IPC, the appellant has been sentenced to rigorous imprisonment of seven years, fine of Rs. 5,000/-, and in default of payment of fine, to undergo rigorous imprisonment of six months. For the offence under Section 404 IPC, the appellant has been sentenced to three years? rigorous imprisonment and a fine of Rs. 5,000/-. On failure to pay the fine, the appellant will undergo rigorous imprisonment of six months. Benefit of Section 428 Code of Criminal Procedure, 1973 (Cr.P.C) would be given.

  3. Before we elucidate and adjudicate upon the contentions raised by the appellant with reference to the evidence led by the prosecution, it would be appropriate to note the case of the prosecution in brief.

  4. On 13th August, 2007, at about 8.45 p.m., one Brahm Singh, who has deposed as PW 1, noticed an unknown person throwing a black colour rexine bag in the jungle near Lado Sarai bus stand. Brahm Singh (PW 1), who at that time was going in a car, stopped the car, but the said person fled from the spot on a motorcycle parked near the bus stand. Brahm Singh could not note down the exact number of the motorcycle except noticing that the motorcycle had a number with the letters 'KA 9735'. Contemporaneously, Constable Raghubir Singh (PW 13) came running to the spot as he had also seen the same incident. Constable Raghubir (PW 13) and Brahm Singh (PW 1) proceeded to open the said black colour rexine bag upon which parts of a human body in the form of two hands (chopped), two legs (chopped from the knee) and a head, without the torso, of a male person were found.

  5. On the statement of Brahm Singh (PW 1) marked Ex. PW 1/A, FIR No. 592/2007 marked Ex. PW 21/A was registered at Police Station Mehrauli. The identity of the person, whose body parts were found in the bag, could not be ascertained. Wireless text messages sent to the SHOs of Delhi and National Capital Region did not help. Inquest papers, under Section 171 Cr.P.C. were prepared and post-mortem, vide report marked Ex. PW-25/A, was conducted at the All India Institute of Medical Sciences (AIIMS) on 21.08.07, after which the remains of the unidentified person were cremated.

  6. On 10th September, 2007, one Nirbhay Prashant (PW 3), on seeing the photographs/advertisement published for identification of the deceased, came to Police Post IGNOU, Mehrauli and identified the deceased as Vipin Kumar, son of late Kanahiya Singh and husband of his sister. Nirbhay Prashant (PW 3) disclosed that the deceased used to work at Hotel Plaza Soliter, Gurgaon and he (PW-3) had lodged a missing report of Vipin Kumar at the Police Station Civil Lines, Gurgaon on 5th September, 2007. Other relevant information that the deceased had a saving bank account number 009901532543 with ICICI Bank at Panchsheel Park branch and had last talked to his wife on 12th August, 2007 from his mobile phone number 9313341707, came to light.

  7. On examination of the call detail records (CDRs, for short) and after examining the video footage of the ATM of the ICICI Bank at Saket from where money was withdrawn using the ATM card of the deceased, the present appellant was arrested. The evidence and materials collected during the police investigation including the recoveries made at the behest of the appellant form the core evidence of the prosecution case.

  8. We now proceed to examine the oral evidence of the witnesses, other evidence relied and the contentions of the appellant. The happenings in the late evening on 13th August, 2007, when Brahm Singh (PW 1) had seen an unknown person throwing a black colour rexine bag in the bushes at the crossing of Lado Sarai bus stand has been proved and established beyond doubt by Brahm Singh (PW 1). PW 1 affirms that a person had fled from the spot on a motorcycle after taking a U-turn to proceed towards Khanpur. He was able to partially note the number of the motorcycle as "KA 9735". In the black colour rexine bag, Brahm Singh (PW 1) and Constable Raghubir Singh (PW 13) found parts of a human body including a human head. On the basis of the statement made by Brahm Prakash (PW 1) marked Ex. PW 1/A, the FIR in question was registered. Evidence and materials were collected and seized from the spot vide seizure memo Ex. PW 1/B.

  9. The aforesaid narration finds affirmative corroboration from the testimony of Constable Raghubir Singh (PW 13), who was on patrolling duty near M.B. Road, when he had seen an unknown person throwing a black colour rexine bag. Thereafter, the said person had fled on a motorcycle after taking a U-turn towards Khanpur. Raghubir Singh (PW 13) had then met Brahm Singh (PW 1) and they had checked the said bag which was found to be having a male face, two hands chopped from the shoulder and two legs chopped from the knees. The said facts are corroborated by Insp. Vinod Pal (PW 20) of the Crime Team, photographer HC Rampal (PW 15), H.C. Virender (PW-19), Ct. Chander Pal (PW-22), Inspector Raj Kumar (PW-28) and Inspector K.P. Kukreti (PW-30) who reached the spot after receiving information about the occurrence.

  10. Post-mortem report marked Ex. PW 25/A was proved by Dr. Akhilesh Raj (PW 25), who had identified the signature and handwriting of Dr. Bharat Verma, who had conducted post-mortem on the aforesaid body parts on 21st August, 2007. The report Ex. PW 25/A opines that the cause of death was haemorrhage due to external injury i.e. incised wound present over the ventral aspect of left upper limb just above the wrist, of 5 × 2 c.m. and tissue-deep. This injury was ante-mortem in nature and sufficient to cause death in the ordinary course of nature. PW 25 has also proved the opinion marked Ex. PW 25/B given by Dr. Bharat Verma regarding the weapon of offence i.e. daab, to the effect that the said weapon could have been used to chop the body. The sketch of the weapon marked Ex. PW 25/C was prepared by Dr. Bharat Verma.

  11. The aforesaid facts would establish a homicidal death amounting to murder. The head, hands and legs below the knee of that person were chopped and thrown by an unknown person, who had fled on a motorcycle which had a number plate with the letters "KA" and numerical "9735". The victim was unidentified and the perpetrator or the culprit was unknown. This would bring us to the testimonies of Nirbhay Prashant (PW-3) and the Investigating Officer Inspector K.P. Kukreti (PW-30), SHO, Police Station Mehrauli, who took over the investigation on 24th September, 2007. Their statements have to be read in seriatim to understand and appreciate as to how the case was solved and why the trial court has convicted the appellant. Nirbhay Prashant (PW 3) has testified that he had identified his brother-in-law Vipin Kumar on 10th September, 2007 on the basis of the photographs shown to him at the Police Post IGNOU, Police Station Mehrauli. His brother-in-law Vipin Kumar was working in a hotel in Section-14, Gurgaon, Haryana and was missing. He knew that Vipin Kumar had last spoken to his wife Jyoti, sister of Nirbhay Prashant (PW 3), resident of village Bhagwatipur, on 12th August, 2007 from his mobile number 9313341707. Nirbhay Prashant (PW 3) had tried to contact Vipin Kumar on the aforesaid number but no one would respond, despite rings. On 3rd September, 2007 PW-3, in search, had come to Delhi from his village Bhagwatipur, Bihar, but Vipin Kumar could not be traced. On 5th September, 2007, PW 3 had lodged a missing complaint at the Police Station Civil Lines, Gurgaon. Nirbhay Prashant (PW-3) from the police station Civil Lines had collected Call Detail Record (CDRs) of telephone number 9313341707 for the period 10th July, 2007 to 1st September, 2007. On thorough examination and studying the record, PW-3, noticed that on 31st August, 2007, at 9:40:70 P.M., an outgoing call of 149.4 seconds was made from the mobile number of the deceased to a landline number 05946266495 located at Haldwani. PW-3 from a PCO booth had made a call on this landline number, 05946266495 and on conversing with the person on the other side, came to know that the mobile number 9313341707 had been used by one Kundan, who was working at the Madhuban restaurant, PVR Saket. Kundan was residing at Shaidullajab. PW-3 knew and had been told by his brother-in-law Vipin Kumar about two close friends, Sanjay Srivastav and Kundan Kumar (Kundan Singh) i.e. the present appellant. His brother-in-law had earlier worked at Supper Factory, Greater Kailash, near Amar Colony in the year 2006 and had be friended Sanjay Srivastav and Kundan Kumar. He had also learnt from the person, who had answered the call, that Kundan was a resident of Uttranchal and his mobile phone number was 9313363224. In his cross-examination, Nirbhay Prashant (PW 3) clarified that the telephone number being used by Vipin Kumar was a prepaid SIM card issued by the operator Reliance. We shall subsequently refer to the other supporting evidence which confirm several important aspects deposed to by PW-3, but at this stage, we would like to refer to the testimony of Inspector K.P. Kukreti (PW 30), who had taken over the investigation on 24th September, 2007, though being the SHO of Police Station Mehrauli had been associated with the earlier investigating officer, Inspector Atul Kumar and S.I. Dinesh Kumar. The latter has not...

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