Delhi District Court
St. vs Nirmala Etc. on 10 February, 2011
St. Vs Nirmala etc.
FIR No. 642/08 & PS: Nangloi
U/s 302/498A/304B/34 IPC
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE (WEST02), DELHI
SC No. 41/3/10
State
Versus
1. Nirmala
W/o Baljeet Singh
R/o Village Bakkarwala, Delhi.
2. Baljeet Singh
S/o Roop Chand
R/o Village Bakkarwala, Delhi.
3. Sanjit @ Sonu
S/o Baljeet Singh
R/o Village Bakkarwala, Delhi.
4. Rajesh
S/o Dilbagh Singh
R/o H. No. 65A, Nangloi Extn.
2B, Delhi.
5. Meena
W/o Rajesh
R/o H. No. 65A, Nangloi Extn.
2B, Delhi.
Case arising out of :
FIR No. 642/08
P.S. : Nangloi
U/s : 302/498A/304B/34 IPC
Date of FIR : 29.10.2008
Date of Institution : 22.01.2009
Date of Final Arguments : 27.01.2011
S.C. No. 41/3/10 Page1/90
St. Vs Nirmala etc.
FIR No. 642/08 & PS: Nangloi
U/s 302/498A/304B/34 IPC
Judgment reserved on : 27.01.2011
Date of Judgment : 31.01.2011
JUDGMENT
1. The present case has been committed to the court of sessions for the offence under section 302/498A/304B/34 IPC, vide FIR No.642/08, PS Nangloi against the accused Nirmala, Baljeet Singh, Sanjeet @ Sonu, Rajesh and Meena.
Factual Matrix :
2. The prosecution story as per the deposition of PW16 SI Pardeep Kumar is that on 29.10.2008 on receipt of DD No.34A, SI Pardeep Kumar along with Ct. Ved Parkash reached house of Baljeet at village Bakkarwala, in a room a dead body in a pool of blood of a lady was lying, lot of blood was lying on the floor. The head of the deceased was towards SouthEast and legs were towards NorthWest. The throat of the deceased was slit and there were many stabbed wounds on the body of deceased. One knife was lying on the dinning table which is covered with cloth and blade of the knife was in bent condition. Another knife was lying near the left hand of deceased and that hand was covered with the Chunni. After inspecting the dead body, the parents of the deceased were called at the spot and the statement of Satyawan father of the deceased was recorded. The rukka was handed S.C. No. 41/3/10 Page2/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC over to Ct. Ved Parkash for registration of the FIR. Message was sent to dog squad, crime team and senior officers. In the meanwhile, Additional SHO Insp. Parkash Chand also reached at the spot and he inspected the spot. In his presence, blood samples were lifted from the spot and taken into possession vide seizure memo Ex.PW6/K. One passbook was recovered from another room which was also seized vide memo Ex.PW6/L. The seizure memo of the knife which was lying on the dining table is Ex.PW6/A and sketch of the same is Ex.PW6/B. The seizure memo of the dagger which was recovered is Ex.PW6/C and sketch of the same is Ex.PW6/D. The steel water filter was also seized for the purpose of taking chance prints which is Ex.PW16/B. The two pairs of slippers/hawai chappal were seized vide seizure memo Ex.PW6/E. One towel was seized vide seizure memo Ex.PW6/F. The dead body was preserved in the mortuary through an application Ex.PW16/C to the CMO through Ct. Ved Parkash.
All the aforesaid articles were lifted from the spot and were converted into sealed pulanda. PW19 Insp. Prakash Chand also informed to the area SDM and recorded the statement of the witnesses. He had also prepared rough site plan, seizure memo of blood stained bangles, blood stained knife, dagger, water filter, earth control, table cover etc. All the exhibits were deposited in the malkhana. On 30.10.2008, he reached at Sanjay Gandhi Memorial Hospital along with complainant. Dead body was identified by Satyawan and Amarjeet, their statements to this effect were also recorded. PW19 Insp. Prakash S.C. No. 41/3/10 Page3/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC Chand also completed the form no.2535(1)(B). He has prepared the brief facts. SDM inspected the dead body of the deceased Anju. All the documents along with brief facts were produced before the doctor with the request to conduct the post mortem. Brief facts are Ex.PW19/A, request for the post mortem is Ex.PW2/F, Form No. 25 35 is Ex.PW2/C, identification statements of Satyawan and Amarjeet are Ex.PW2/D and Ex.PW2/E. After the post mortem, dead body was handed over to the relative of the deceased vide Ex.PW19/B. He had reached at the house of (Narayan Singh) brother of accused Baljeet at Bakkarwala along with other police officials. Accused persons were not found there. At the house of Narayan Singh brother of accused Baljeet Singh, a baby girl Poorvi age about 2 ½ years old met there. He had recorded her statement in questionanswer form under section 161 Cr.P.C. On 30.10.2008 at about 06:00 PM, PW19 Insp. Parkash Chand reached at Mundka along with members of raiding party on receipt of secret information. He reached at the house of the accused persons, complainant Satywan also informed to reach at the spot. When he reached at the house of accused persons, he found that Nirmala, Baljeet and Sanjeet were present there. He interrogated all the three accused and arrested in this case. He prepared arrest and personal search memo. Personal search memo of Nirmala, Baljeet and Sanjeet are Ex.PW14/C, Ex.PW19/G and Ex.PW19/H respectively. After the arrest of the accused persons, they made their separate statement. In pursuance of the disclosure statement of Nirmala, she pointed out the S.C. No. 41/3/10 Page4/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC place of incident. The accused Nirmala also got recovered a suit salwar along with chunni from the room which adjacent to the place of incident. She had also got recovered Rs.50,000/ of Rs.500/ denomination along with a gold chain from a box,box was also lying in the said room where the SalwarSuit was recovered. Suit was converted into the sealed pulanda and sealed with the seal of PC, gold chain was converted into sealed pulanda. Disclosure statement of accused Nirmala, Baljeet and Sanjeet were recorded vide Ex.PW14/A, Ex.PW19/D, Ex.PW19/C respectively. Recovery memo of the articles which were recovered at the instance of Nirmala is Ex.PW14/E. Seizure memo of pieces of bangles which were taken from the hand of Nirmala and converted into the sealed pulanda are Ex.PW14/D. Arrest memo of Nirmala, Baljeet and Sanjeet are Ex.PW14/B, Ex.PW19/E and Ex.PW19/F respectively. Insp. Parkash Chand collected the marriage proof of Anju and Sanjeet and seized the same vide seizure memo Ex.PW6/A. He had also made efforts to trace out the other accused Rajesh and Meena but they were not traceable. He also collected the post mortem report and moved an application before the doctor for opinion regarding recovered weapon of offence vide application Ex.PW19/G. He prepared the charge sheet against the accused Nirmala, Baljeet and Sanjeet and filed in the court. Before filing charge sheet he had applied for nonbailable warrants of Meena and Rajesh.
On 12.02.2009 Rajesh and Meena were apprehended on the S.C. No. 41/3/10 Page5/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC basis of the secret information, from Extension 2D, Nangloi. They made disclosure statements, accused Meena led the police party at the place of incident and pointed out the place of incident. He prepared the pointing out memo on the instance of accused Meena. Nothing was recovered at the instance of accused Meena and Rajesh. After completion of the investigation, the supplementary charge sheet filed in the court. Photographs of place of incident are Ex.PW4/1 to 25. Arrest memo of Rajesh and Meena are Ex.PW19/K and Ex.PW19/L. Their personal search memo are Ex.PW11/A and Ex.PW11/B and disclosure statements are Ex.PW11/C and Ex.PW11/D respectively.
Case property of the present case was sent to FSL through Ct. Balbir Singh. During trial FSL report was collected and placed on judicial file vide Ex.PW9/A. PW19 Insp. Parkash Chand also identified the case property during the course of trial while recording his statement. The dagger is Ex.P1 which was lying on the table Ex.P2. Broken pieces of bangles are Ex.P4. Table cover (mazeposh) is Ex.P4. Towel is Ex.P5. Two pairs of baby chappal are Ex.P6. Six passbooks recovered from the house of accused persons are Ex.P7 to P12. A sum of Rs.50,000/ and gold chain are collectively Ex.M1. Salwar Kameez and dupatta which were recovered on the pointing out of Nirmala which were worn by her at the time of commission of offence are Ex.M2. The broken pieces of bangles which were removed from the wrist of Nirmala are collectively Ex.M3. The blood gauze is Ex.S1. Blood stains earth is Ex.S2. Earth sample is Ex.S3. One lady shirt, one S.C. No. 41/3/10 Page6/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC pajami, one chunni and one brazer are collectively Ex.S4. Blod gauze received from the hospital is Ex.S5.
Charge against the Accused Persons :
3. After completion of the committal proceedings, the charge against the accused Nirmala, Baljeet, Sanjeet, Rajesh and Meena was framed for the offence punishable under section 302/498A/120B IPC with the allegations that on 29.11.2004 to 29.10.2008 at village Bakkarwala near Candle Factory, Nangloi, the above named accused persons criminally conspired and subjected Anju to cruelty during aforesaid period for or in connection with demand of dowry of Rs.10Lacs committed offence punishable under section 498A/120B IPC.
Further that, in furtherance of the common intention of all of them caused the death of Lalita who died on 29.10.2008 in between 05:00PM to 06:30PM at above said address, and was married to Sanjeet about four years back of her unnatural death by causing 20 stab injuries within seven years of marriage and committed offence punishable under section 302 IPC. The accused persons pleaded not guilty and contested the charges.
Prosecution Evidence :
4. In order to substantiate the charges against the accused persons, prosecution examined 19 witnesses which include public witnesses PW1 Pushpa Rani, mother of the deceased, PW5 Harender S.C. No. 41/3/10 Page7/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC Singh (Cousin brother), PW12 Amit Kumar ( Real brother), PW6 Satyawan (Father) and PW10 Poorvi (Daughter of deceased) apart from the doctors and scientific experts and the police officials.
PW6 Satyawan complainant in his deposition stated that Anju Rani was his daughter who was married with Sanjeet. He had spent Rs.11 lacs in the marriage of her daughter which was solemnized at Delhi. After 2/3 months of marriage, the accused Nirmala (Saas), Meena (Nanad), Rajesh (Nandoi), Baljeet (Sasur) and Sanjeet started harassing her daughter for demand of dowry. After six months of marriage, he had left India for London and reached there on 12.07.2005 and remained there about three years. He came back in July 2008. Her daughter used to inform him on telephone that accused persons were harassing her for demand of dowry. Accused persons were asking for Rs.10 Lacs cash for a big car. During his stay in London, his wife visited India five times to pacify the matter and requested not to harass his daughter. In June 2006, her daughter gave birth to a female child and during this period her uterus was also removed due to some medical problem. On 25.06.2006, his wife was in Delhi. His daughter was also shifted to Maharaja Agrasen Hospital. After the removal of the uterus, her daughter was not in a position to gave further birth to any child in future. When Nirmala (Saas) and Baljeet (Sasur) came to know that Anju is not fit for giving birth to any child further. Thereafter, Saas and Sasur started saying that " isi doraan ye sabhi log Nirmala, Baljeet, Sanjeet, Meenu, ladki se kehne lage ki ab hum doosri S.C. No. 41/3/10 Page8/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC shadi karenge aur tujhe maar denge" . In September 2006, to pacify the matter, he invited Sanjeet and his daughter at London. Sanjeet and Anju reached at London along with his wife. At the time of going to London, his daughter was sent after imposing condition that she will return back with Rs.10 lacs. Sanjeet and his daughter along with baby remained in London for about one and half months. He stated that "jo mere se ban pada, maine apni hasiyat ke mutabik oon logo ko dekar vida kiya". When her daughter reached Delhi from London, immediately thereafter, the accused persons started harassing her for dowry and starting saying that " ek to tum dus laakh rupaiye lekar nahi aai, aur doosre tum Maa nahi ban sakti, tum ko maar kar hum apne ladke ki doosri shadi kar denge". Her daughter had informed him on telephone. In February 2007, he came to Delhi specially to settle the matter and met the accused persons in the house of accused Sanjeet. He asked them not to talk about the remarriage of Sanjeet and dowry i.e. Rs.10 Lacs. Thereafter, he went to London again. Finally, he came back to India in July 2008. In the month of August, he called accused Rajesh, Sanjeet and Baljeet to his house and made them understand that do not talk about remarriage of Sanjeet and dowry demands and he again went to the house of the accused persons in September 2008. The accused persons repeated the same thing that they want to remarry Sanjeet after eliminating Anju. On 29.10.2008, he received a telephonic call at about 07:00 PM from someone who informed that her daughter has been murdered. He reached at the house of his daughter S.C. No. 41/3/10 Page9/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC at about 08:30PM08:45PM. He saw the body of his daughter, there were many stab injuries on her body. He saw that one knife was lying on the table and one big size knife was lying in the hands of his daughter. When he reached, all the five accused persons were there. After some time, accused Rajesh and Meena had left the place of incident. He confirmed that the present accused persons are involved in the assassination of his daughter. His statement was recorded before the SDM on 03.11.2008 vide Ex.PW2/A. He further stated that the accused persons wanted to show that it is a case of robbery. In one room some passbooks were lying here and there; almirah was found open condition and articles of the room was not in proper condition. On 26.10.2008, his son Amit and Bhanja Harender came back from the house of his daughter after delivery of the sweets, met on the occasion of Diwali. Accused Nirmala, Baljeet, Sanjeet, Meena and Rajesh were threatening to kill Anju by stating that "hum Sanjeet ki doosri shaadi karenge kyuki Anju Maa nahi ban sakti isliye hum use maar denge" . On 28.10.2008, he had talked to Baljeet, Rajesh and Sanjeet on telephone stating that he will sort out the matter after Diwali and Goverdhan Puja and requested for two days time. But the accused persons had murdered her daughter on the occasion of Goverdhan Puja i.e. on 29.10.2008. He has also identified the case property of the present case.
The testimony of PW6 Satyawan is corroborated by the deposition of PW1 Pushpa Rani who made the allegations regarding S.C. No. 41/3/10 Page10/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC the harassment and demand of Rs.10 lacs for a big car. PW5 Harender Singh stated that on 26.10.2008, he had gone to the maternal uncle Satywan at Dwarka who told him to go to the house of Anju along with Amit and to handover gifts and sweets to Anju in the eve of Diwali. He had reached the house of Anju at Bakkarwala. The accused persons were present there. He observed that there is something wrong and he asked his sister Anju about the sadness, she told that "bhaiya ye log mujhe jinda nahi rahne denge, ye kahte hai ki ti London se aane ke baad na to 10 Laakh rupaiye lai hai aur na hi tu Maa ban sakti hai". Thereafter, he talked to Nirmala (Saas) who told him to take Anju back and also told that she will arrange second marriage of Sanjeet because Anju is not in a position to become mother further. Nirmala also told that if he will not take her back then they will murder Anju. Meena, Rajesh and Sanjet @ Sonu also repeated the same. Then he talked to Baljeet (Sasur) who told that " Apni bahan ko hamesha ke liye le jao, hame to Sanjeet ki doosri shaddi karni hai, ye aage hamara vansh nahi chala sakti hai isliye isko le jao nahi to hum maar denge". Harender tried to pacify the matter and told the accused persons to provide some time so that they can discuss the matter with the family members to solve the problem. He also pacified her sister when he had left Bakkarwala along with Amit. Thereafter on 29.10.2008, she (Anju) was murdered. PW12 Amit Kumar also corroborated the deposition of PW5 Harender.
PW10 Poorvi daughter of the deceased Anju stated in her S.C. No. 41/3/10 Page11/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC statement dt 04.03.2010 that " Dadi ne mara, Meena ne pakra" . She denied to meet the complainant counsel to her. However, he met in the way and her name was asked and told her to come to the court. Her Nani is at her house and also told that when she has to go in the court she has to give the reply of the questions put to her. Nani has told that her mother has gone to the hospital. When her mother has gone to the hospital, she has gone to the house of the Nani.
5. In order to prove the post mortem report, the prosecution examined PW8 Dr. Manish Dhingra who conducted the post mortem on the dead body of the deceased Anju vide his detailed report Ex.PW8/A and opined the cause of death as " hemorragic shock as a result of multiple stab injuries". On 24.11.2008, he examined weapon of offence as recovered vide Ex.PW8/B and Ex.PW8/C. The small and big knife were examined by him and gave his opinion Ex.PW8/D that "i njury mentioned in post mortem report are possible with this weapon or similar such weapon".
PW9 Naresh Kumar, Senior Scientific Assistant, Biology Division, proved the FSL report on the case property seized and sent to biological division on 25.11.2008 vide letter no. 1446 and prepared the detailed report Ex.PW9/A and B. Blood was detected on exhibits dagger, knife, bangle pieces, towel, hawaai chappal, lady shirt, pyjami, chunni, brassierer, lady shirt salwar. Blood could not be detected on exhibit ' 6' i.e. cemented marble piece (control). The blood group ' A' was found on dagger, knife, towel, hawaii chappal, lady shirt, pyjami, S.C. No. 41/3/10 Page12/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC chunni, brassierer, lady shirt, salwar & chunni, blood stained gauze.
6. Apart from the above witnesses, the prosecution also examined PW2 P.P. Mishra, SubRegistrar (SDM) who had received the information on 29.10.2008 at about 11:45 PM through the investigating officer. He visited the site at 09:00 AM on 30.10.2008 along with SHO who told him that the evidence related to the case like weapon of murder, blood samples etc. had been lifted by the police. The dead body was lying between a bed and dining table in the open place in a pool of blood. He saw some blood still lying on the floor. Thereafter, he went to the mortuary and got the post mortem conducted in his presence. He had inspected the dead body and found several stab injuries on the body of the deceased mostly in the abdomen area. He directed the SHO to produce the parents of the deceased before him immediately. However, the parents were produced before him on 03.11.2008 and their statements were recorded. Statements of Pushpa Rani and Satyawan are Ex.PW1/A and Ex.PW2/A. His report is Ex.PW2/B. He further stated that the parents of the deceased alleged that the inlaws, husband as well as the sisterinlaw and her husband all are involved in the murder of the deceased Anju. However, the police had lodged the FIR only against the parents inlaw and husband of deceased. He directed the police to include the sisterinlaw and her husband also in the FIR and carry out further detailed investigation into the matter. He signed on inquest form 25, 35 (1b) which is Ex.PW2/C. Identification statements of Satyawan and Amarjeet are Ex.PW2/D and S.C. No. 41/3/10 Page13/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC Ex.PW2/E respectively.
The other witnesses are the police officials like PW7 HC Jagmer Singh in whose presence, complainant Satyawan had produced some photographs, which were seized vide seizure memo Ex.PW6/J. He also identified the photographs Ex.PW6/G and Ex.PW6/H and copy of marriage card cover is Ex.PW7/A. PW11 Ct. Ved Parkash remained with PW16 SI Pardeep Kumar and deposed in the same manner as deposed by PW16 SI Pardeep Kumar in the initial paras of the judgment and also proved the documents prepared during the course of investigation.
PW13 HC Surender lifted the six chance prints from the steel water filter which was lying at the place of incident vide Ex.PW13/A. PW14 SI Savita joined the investigation on 30.10.2008 along with other police officials and on the basis of secret information, the accused Nirmala, Baljeet and Sanjeet were apprehended from Bakkarwala and they were interrogated. The disclosure statements, arrest memo and personal search memo of the aforesaid accused persons were prepared in her presence. Accused Nirmala has disclosed in her disclosure statement that a box is lying in her house in which she had concealed Rs.50,000/ and a gold chain because she want to gave the colour of dacoity of this incident. The accused Nirmala led the police party at her residence and got recovered Rs.50,000/ and a chain from the next room which is adjacent to the place of murder. She had S.C. No. 41/3/10 Page14/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC also got recovered her wearing clothes at the time of commission of offence and handed over to the police. Broken bangles also seized on the instance of accused Nirmala in presence of PW14 SI Savita.
PW15 Ct. Sunil Kumar sent the copies of the FIR as a special messanger to the Area Magistrate and senior officers. PW17 HC Narender Kumar, MHC(M) proved the entries in the register no.19. PW18 Ct. Pawan Kumar collected the exhibits along with FSL form MHC(M) and deposited the same in the FSL Rohini and collected the acknowledgment. Till the case property remained in his custody, the same were intact and not tampered in any manner.
PW19 Insp. Prakash Chand stated in his deposition regarding the manner in which the investigation was conducted as stated in the preceding paras of the judgment.
PW20 SI Mahesh Kumar is the draftsman who prepared the scaled site plan of the place of occurrence at the instance of Insp. Praksh Chand which is Ex.PW20/A. Statement of Accused Persons :
7. After conclusion of the prosecution evidence, the statement of the accused persons were recorded under section 313 Cr.P.C.
Accused Rajesh and Meena admitted that Anju was the daughter of Satyawan and was married to the accused Sanjeet. The remaining incriminating evidence as put to them was denied with the contentions that they are innocent and falsely implicated in this case. They also wanted to lead defence evidence.
S.C. No. 41/3/10 Page15/90St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC Accused Nirmala stated in her statement under section 313 Cr.P.C. has not disputed the marriage of the deceased Anju with accused Sanjeet. Anju along with Sanjeet went to London as called to perform Chuchak ceremony. Further stated that on 29.10.2008, his brother Sikander had come to her house to take her to his house for celebrating Bhaidooj on 30.10.2008. So she along with Poorvi went to his houseat Sarang Pur, Najafgarh. Anju was left alone in the house as her husband Baljeet and son Sanjeet had gone to their work. She was supposed to return back on 30.10.2008 in the morning so that Anju the deceased could also go to his parental house for celebrating Bhaidooj. In the evening, her brother Sikander received an information for reaching the house immediately as some incident had taken place in their house. She along with her brother rushed to her house where on reaching she found that the police was present. Her husband Baljeet and son Sanjeet also immediately came. She saw the dead body of Anju was lying in pool of blood inside the house. Immediately, Satyawan and his wife also reached the house and they started giving filthy abuses and assaulted her husband Baljeet. The police took control of it and took her with Poorvi, Baljeet, Sanjeet and Satyawan and later on, police took Poorvi form her and they all were falsely implicated in the present case.
The accused Baljeet in his statement under section 313 Cr.P.C. also admitted the deposition as made by accused Nirmala. The accused Baljeet further stated that his son Sanjeet was married with S.C. No. 41/3/10 Page16/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC Anju on 28.11.2004 through a simple marriage. After Anju had become pregnant she was undergoing treatment at the hospital and later on delivered the child Poorvi. All the expenses were borne by them. Since there was perfused bleeding continued to Anju and she was taken to Agrasen Hospital where she was treated. On 29.10.2008 in the morning, her brotherinlaw Sikander had come to their house for taking Nirmala along with him for celebrating Bhaidooj on 30.10.2008. He told his wife to return on 30.10.2008 after celebrating Bhaidooj in the morning so that Anju could also go to her parental house for celebrating Bhaidooj. He also left along with his son Sanjeet for work and his wife Nirmala went along with Poorvi accompanied by her brother to his house. In the evening as usual when he returned to his house, he found a lot of people standing. He also found that Nirmala had immediately reached there. The police was also present. After reaching their house, after some time Satyawan and his wife reached at the spot. By that time, he had found that Anju was lying in the pool of blood inside the house. On reaching Satyawan and his wife started giving filthy abuses and Satywan grappled with him. The police officers present at the spot took control of it and therefore, he along with his wife Nirmala who was holding Poorvi and his son on one hand and Satyawan on the other hand were taken to the police station where they were made to sit. Since Poorvi was crying because of hunger, the police officers took her from the lap of Nirmala. Throughout, the night they were made to sit in the police station and later on they were falsely S.C. No. 41/3/10 Page17/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC implicated in this case.
Accused Sanjeet also stated in the similar manner in his statement under section 313 Cr.P.C., as stated by accused Nirmala and Baljeet.
Defence Evidence :
8. The accused persons also led evidence in their defence and examined five witnesses. DW1 Rakesh brought the summoned record copy of Khatoni of the year 20022003 vide Ex.DW1/A. The whole Khatoni belongs to the agriculture land of 97 Bheegas out of which some portion had been sold and Baljeet Singh is having ¼ share in the property. The value of this land as per government acquisition rate is 53 Lacs per acre. The value of the land is in crores out of which ¼ share belongs to Baljeet Singh. Out of this land of 97 bheegas, 29 bheegas 8 biswa was sold in the year2006. Out of this land also 9 bheega and 3 biswa vested in Gram Sabha.
DW2 Om Lal is the Assisant Manager of Syndicate Bank, Dichiaon Kalan Branch, who proved the certificate Ex.DW2/A which was issued from the above said bank. The said certificate has been issued after due verification from bank record. The computer generated record of account no. 90802010044127 pertaining to Sanjeet. The record is Ex.DW2/B. He also brought the record of account no. 90802010048553 pertaining to accused Baljeet and the same is Ex.DW2/C. S.C. No. 41/3/10 Page18/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC DW3 Sikander is the brother of accused Nirmala who stated in his deposition that on 29.10.2008, he had gone to the house of his sister in the morning to take her with him to his house on the occasion of Bhaidooj. When he reached there in the morning, accused Nirmala, Baljeet, Sanjeet and Poorvi were present there. At about 10:00AM after taking tea extra, Baljeet and Sanjeet went for their job while Nirmala got ready for going with him to his house. At that time Poorvi started weeping and wanted to accompany Nirmala. On this Nirmala, accompanied Poorvi with her. In the evening, he received a telephonic information about mishappening in the house of accused Nirmala. Thereafter, he and his sister Nirmala became nervous and immediately they came to Bakkarwala village at the house of Nirmala. When they reached at the house of Nirmala, they found that police were present there and crowd was gathered there. Accused Sanjeet and Baljeet also reached there. He found the dead body of Anju lying in the pool of blood inside the house. On seeing this everybody felt shocked and started weeping. After that Satyawan and his wife came over there. They started giving filthy abuses and also assaulted with Baljeet and Sanjeet. On this police control the situation and took Satyawan, Baljeet, Sanjeet and Nirmala to the police station. On next day, when he went to police station, he was told that Nirmala, Sanjeet and Baljeet have been arrested and the police officer threatened him to run over, otherwise he will also be arrested along with them. Thereafter, since he is illiterate and was scared, he came back to his house. Since, the S.C. No. 41/3/10 Page19/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC police had already threatened him and he is illiterate and felt scared.
DW4 Raj Kumar is the chairman of Vikram Public School at Prem Nagar, Nangloi, who stated in his deposition that the accused Baljeet was also the member of the Management Committee of this school vide letter Ex.DW4/A. On 05.05.2005, resignation was given by Baljeet which was accepted in meeting held on 05.05.2005 vide Ex.DW4/B. Thereafter, by resolution dt. 20.05.2005 Anju Rani was inducted as the Manager of the Managing Committee of Vikram Public School. She had been doing work as Manager. The list of the other members of Managing Committee is Ex.DW4/C. She continued working as Manager of the Vikram Public School till her death. She had been doing all the administrative work of the school in the capacity of the Manager and had been participating in the meeting of the Managing Committee resolution on different dates till her death. She was substituted as Manager in the Managing Committee on the acceptance of the resignation by Baljeet Singh. The Vikram Public School was recognized school with the Education Department of Municipal Corporation of Delhi vide Ex.DW4/D. DW5 Naresh Kumar Mahajan is the Chartered Accountant who certified the account of Vikram Public School running up to 5th Class. He used to file the return on behalf of Anju Rani in regard to her income tax. He also used to audit the accounts on behalf of Vikram Public School. Anju Rani was a proprietor of Vikram Nursery School and the returns were filed in the income tax department S.C. No. 41/3/10 Page20/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC showing her income. The photocopy of all the returns w.e.f. 200405 to financial year 20072008 are Ex.DW5/A1 to A4. The auditors report was use to be given to Education Department, MCD in regard to Vikram Public School is Ex.DW5/5 which started from 1997 to 2008
09. Discussion & Analysis the Rival Contentions :
9. After conclusion of the evidence of the prosecution as well as defence, I have heard the submissions of Ld. APP for state, counsel for complainant as well as Ld. Counsel for the accused persons and also perused the written submissions and authorities filed by them.
Ld. APP for state and complainant counsel submitted that the prosecution has proved its case beyond all reasonable doubts with the testimony of the complainant PW6 Satyawan, his wife PW1 Pushpa Rani and their testimony is corroborated by the deposition of PW5 Harender, PW12 Amir Kumar and PW10 (Baby) Poorvi. The prosecution has substituted its case against the accused persons on the basis of the testimony of PW10 Poorvi who is the sole eye witness of this case as the defence has not given any suggestion that she is a tutored witness or she deposed at the instance of PW1 Pushpa Rani and PW6 Satyawan being the maternal parents. The confrontation in the statement Ex.PW6/M being the statement on the basis of which the FIR was registered, hardly effects the case as the FIR is not the encyclopedia of all the facts of the case. The prosecution proved its S.C. No. 41/3/10 Page21/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC case on the basis of circumstantial evidence as well as the theory of defence becomes untrustworthy, unreliable and mere a false defence. The plea of 'a libi' taken by the accused Nirmala is also found false even the deposition of DW3 Sikandar did not support the case of the defence and does not inspire confidence rather on some material points of prosecution has been proved by his testimony as he has been deposed falsely. DW3 is an interested witness who deposed just to save her sister and her family members and his evidence cannot be believed. He has not made any complaint to the senior police officers or to the court for implicating his sister and her family members falsely by the police in this case. He stated in his examination that he was threatened by the police to run over otherwise he will also be arrested. He is illiterate person and scared from the police. But in the cross examination he stated that he is not under any fear today. He was not threatened by any of the police men in the court room and admitted that when he had entered the court room there were some police men inside the court, he did not feel scared on seeing them.
It is further submitted by the counsel for the complainant/APP for state that the reason for not making of the complaint initially to senior officers against the false implication of the accused is that the relation between the DW3 Sikandar and his sister Nirmala were not cordial initially but later on the DW3 Sikandar was persuaded by accused persons who cooked up a false story of robbery and committed the murder of Anju by robbers for deposing falsely in S.C. No. 41/3/10 Page22/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC their favour. The presence of the DW3 Sikandar is also doubtful at the spot on 29.10.2008 since in the cross examination he admitted that he does not know the exact date but his sister was arrested on about 30.10.2008. He cannot say whether the police had taken them to the police station as there was a fight between them and Satyawan. DW3 Sikander has not supported the case of the defence that when PW6 Satyawan reached there the apprehension of breach of peace has mounted and " Jhagre Jaise Halaat Ho Gaye The" . DW3 has also stated in his cross examination that he received the information at about 06:00 PM and reached the place of incident at about 07:15 PM. PW16 SI Pardeep did not support this version of DW3 Sikander as he received the DD No.34A at about 07:00 PM and he reached at the spot within 25 minutes. PW16 SI Parkash Chand stated in his cross examination that all the family members of accused persons were present there inside the house. However, according to the DW3 Sikandar, police had already come at the spot when they reached at the spot. Hence, the reaching of Nirmala and DW3 Sikandar at the spot after the arrival of police is doubtful. DW3 Sikandar stated in his cross examination that Nirmala did not weep and touched the body of deceased. Then how the blood stains of the deceased come on the wearing clothes of the accused Nirmala. This conduct of the accused also reflects the guilty mind of the accused Nirmala. Otherwise the defence could have been in better position to explain the blood stained clothes of the accused with the blood of deceased.
S.C. No. 41/3/10 Page23/90St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC It is further submitted by Ld. Counsel for the complainant/Ld. APP that the accused Nirmala must have been at her house on the festive day for celebrating the Goverdhan Pooja on 29.10.2008 when all the family members pray together on that day but she did not perform his Pooja on that day and opted to go with his brother to celebrate Bhaidooj on the next day i.e. on 30.10.2008. It creates serious doubt about her going to village Sarangpur with DW3 Sikandar. It is not the case of the defence that the brothers of deceased had come to the house of the deceased on some other date for giving the sweets of Diwali and not on 26.10.2008 while the defence had bluntly refused to any of such visit. If a sister is given utmost respect in the old age then a sister in her early years of marriage is also given more respect than the former unless something contrary proved. Hence, the visit of PW5 Harender and PW12 Amit is not doubtful and the incident dt. 26.10.2008 at the house of the deceased, can be taken into consideration for the corroboration of the testimony of the other witness as well as for proving of the conspiracy hatched by all the accused persons for committing the murder of Anju. It is further contended that when the two other brothers of accused Nirmala were also living in the same village at Bakkarwala and third brother had also come there, then why did Nirmala not celebrate the Bhaidooj there and why she opted to go to the village Sarangpur. The conduct of the accused Nirmala and other accused persons is not natural conduct and can be taken against them under section 8 of Evidence Act. The S.C. No. 41/3/10 Page24/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC inmates of the house have not telephoned to the parents of the deceased and also relied upon 20096SCC61, Narendera Vs State of Karnatka, (Para no.5 and 7), where it is observed that "in the present case there are certain material aspects which were lost sight of by the trial court but have been noted by the High Court. The dead body was detected in the morning of 14.02.1994. Parents of the deceased informed the police and not the inmates. The parents were informed by neighbours and not by the inmates. DW2 has been disbelieved as he was nearly 70 years of age. It was highly improbable that he was in employment as a watchman. The trial court had held that the evidence of PWs 6 to 8 regarding pressing mark on the neck and injuries on the fore arms of the deceased are not corroborated by the medical opinion. This is factually incorrect. The doctor (PW2) had categorically stated that he was of the opinion that death was due to result of compression of the neck, and the post mortem report was accordingly issued. PW6 has stated that second opinion was sought for and then the report was given. The falsity of alibi is an additional link. That being so there is no merit in this appeal which is accordingly dismissed."
It is further pointed out by Ld. APP and counsel for the complainant that the DW3 Sikandar admitted in his cross examination that Nirmala, Sanjeet and Baljeet were having their own mobile phones and the same is proved by Ex.PW17/B. Nirmala and Sikandar did not confirm about the news from Sanjeet and Baljeet about the happening S.C. No. 41/3/10 Page25/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC of the incident or intimated the accused Meena and Rajesh about the incident. This is unnatural conduct of the DW3 Sikandar and Nirmala and goes against them under section 8 of Evidence Act. It is not the case of the defence that DW3 Sikandar and Nirmala have disclose to the villagers and neighbours about the telephone of DW3, Nirmala and the visit to village Sarangpur with DW3. If it was so then only the family members could have known this fact but family members have not made the call on DW3's phone about the incident. The defence as taken is that the informer is the one and same person who had informed the parents of the deceased, DW3 Sikandar and police but the prosecution did not examine him in evidence. This informer did not inform the DW3 Sikandar about the commission of murder of Anju while he is informing about the commission of murder to the police and the parents of the deceased that Anju has been murdered and he did not say about the happening of the robbery and dacoity.
PW1 Pushpa Rani specifically testified that the accused Sanjeet has no work to do even then the defence has not explained about his place of work and working especially on the day of festival when all school and other institutions were closed. The defence has also failed to explain about the work place of accused Baljeet and Sanjeet on the day of incident. The coming of the accused persons at the spot according to the story of defence just after arrival of the police is itself proof of conspiracy. DW3 Sikandar did not know the accused Rajesh and his phone number while he is maternal uncle. There is S.C. No. 41/3/10 Page26/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC custom in Hindu society that at the time of marriage of children of the sister, the maternal uncle attained the marriage if the relation between brother and sister are cordial and they are on visiting terms. If DW3 Sikandar had attended the marriage of accused Meena then he must have in all probability known to accused Rajesh who is soninlaw of accused Nirmala. It cannot be ruled out that DW3 and accused Nirmala are not on visiting terms so the possibility of celebrating of Bhaidooj is further doubtful. To this effect, it is relied upon Cr.L.J. (2010) 85, Delhi High Court, Ramesh Kumar Vs State, Para no. 20, where it is observed that " the Ld. Trial Judge has held that it was doubtful whether Jaipal was a relative, much less the maternal uncle of the appellant. We concur with said view taken by the learned Trial Judge for the reason as per Jaipal he is the maternal uncle of the appellant. He is not a distance relative. Surely, a maternal uncle would remember the name of the wife of his nephew. It is clear that Jaipal has deposed at the behest of the appellant and that the testimony of Jaipal is not even worth the paper on which it is typed. We hold that the appellant has not been able to successfully prove alibi for the reason his sole witness to establish that he is a worthless witness and so is his testimony."
It is further submitted that the recovery of Rs.50,000/ and a gold chain at the instance of the accused Nirmala proved that she tried to make a false case of robbery initially. PW16 SI Pardeep in his cross examination admitted that when the complainant Satyawan had reached S.C. No. 41/3/10 Page27/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC at the spot " Jhagre Jaise Halaat Ho Gaye The" . DW3 Sikandar also deposed that " Jhagre Jaise Halaat Ho Gaye The" . If it was the case of robbery and the deceased was treated with love and affection by the accused persons then parents of the deceased could have been in a shock and symphethetic to the soninlaw and parentsinlaw. Why the apprehension of breach of peace is mounted. If they had behaved in such a manner with the accused persons in a case of robbery, the villagers and neighbour of the accused persons could have made them understand and have apprised with the true facts. It is crystal clear that PW1 Pushpa and PW6 Satyawan had the knowledge about the harassment of the deceased. Hence, the loss of mental balance after hearing of the news of the murder of Anju, was his natural reaction and this conduct under section 8 of the Evidence Act bears the relevancy about the facts of threat given by the accused persons to the deceased. There is no evidence regarding the possibility of commission of robbery or dacoity by strangers. The first information to the police vide DD No.34A is about the murder and not about robbery and dacoity. DW3 Sikandar stated in her examination that he asked for the people who had gathered at the spot enquired about the incident and they told him that a murder has been committed but they do not know how the murder was committed. He cannot tell the names of the persons who had so informed him.
It is further submitted by Ld. Counsel for the complainant that the incident has happened at about 0505:30 PM, in the month of S.C. No. 41/3/10 Page28/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC October 2008. This time was day time and people in the village are expected to pass through the gali and the house where the murder took place is admittedly situated in a thickly populated area and there are residential houses on both sides of the said house. Hence, there is every likelihood that if they were strangers they must have been seen on their running after committing of the robbery/dacoity. The motive of the robbers and dacoits is always to loot the cash, gold and other valuables and not to committing of the murder. While no cash and jewelery has been reported to be stolen from the house. It is further pointed out that the photographs Ex.PW4/1 to 25 show that the deceased is wearing her earrings and gold chain and the same have not been taken away by the robbers. Hence, it ruled out the robbery. The number of stab wounds over the body of the deceased shown that the motive of assailants was to commit murder not to commit robbery and dacoity. The use of two weapon and its recovery from the spot itself shows that they were not the robbers and they were the inmates of the house who could not get the opportunity to dispose off the weapon of offence. If Rs.50,000/ were in the house and the assailants were robbers, they must have taken the cash from Almirah and boxes and the lock of almirah and boxes could have been found in broken condition. Recovery of Rs.50,000/ and gold chain i not expected to be planted upon accused by the police from their own pocket. No evidence of forced entry inside the house found. It is relied upon Cr.L.J. 201085, Delhi High Court, Ramesh Kumar Vs State, Para no.27, where it is S.C. No. 41/3/10 Page29/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC observed that " if a housewife is murdered inside her matrimonial house and there is no evidence of a forced entry inside the house and the time of the murder is night time and if the husband is not able to satisfactorily explain his being absent from the house, it would constitute an incriminating circumstance of very high inculpatory value against the husband."
It is further pointed out that when PW1 Pushpa Rani, PW5 Harender, PW6 Satyawan and PW12 Amit Kumar deposed before the court specifically about the committing of the murder of Anju, thereby hatching of the conspiracy by all the accused persons on account of becoming her infertile in future and she was not able to beget male child for the family. The defence has not given any suggestion to them about the commission of robbery. Hence, the defence taken by the accused persons is afterthought. After examining of the above said family members of the deceased, the winning over of the PW16 and 19 cannot be ruled out by the defence because at the time of their examination, the defence brought up the theory or robbery for the first time. The recovery of the blood stained wearing clothes of accused Nirmala which were smeared with the blood of deceased which is Ex.PW14/E is the clear evidence towards her guilt. The defence has not given any suggestion to the witness that if those clothes were not of accused Nirmala, then when and whose clothes have been recovered by the police which were stained with the blood of deceased. The counsel for the complainant also relied upon Cr. L.J.201085, Delhi High S.C. No. 41/3/10 Page30/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC Court, Ramesh Kumar Vs State, Para no.22, where it was observed that " it is obviously a false defence that the appellant went voluntarily to the police station on 02.04.1997. The reason for the false defence is that the appellant was arrested on 02.04.1997 and he wants to project his custody with the police as not being the result of his being arrested but on his voluntarily going to the police station. In this manner, the appellant desires to explain that he did not abscond."
It is further submitted by Ld. Counsel for the complainant and Ld. APP that the PW10 Poorvi has deposed unerringly against the accused persons and her testimony has not been shaken in cross by defence. Her testimony inspires confidence to be relied upon as an eye witness to the commission of murder of her mother. The recovery of blood stained two pair hawai chappals blue and pink in colour from the spot which were wearing chappals by PW10 Poorvi. The said chappals are Ex.P6 which are having blood stains of the blood group A which is the blood group of the deceased. If the PW10 Poorvi had gone with the accused Nirmala and DW3 Sikandar to village Sarangpur, she must have worn and taken with them and could not have gone with bare feet. Hence, the recovery of the chappals from the spot proved the presence of the PW10 Poorvi at the time of murder. The photographs also shown the lying of the chappals here and there in the pool of blood. PW19 has deposed that on 30.10.2008, Poorvi was present at the house of Narayan Singh, the brother of the accused Baljeet Singh and her statement was recorded on the same day. If S.C. No. 41/3/10 Page31/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC Poorvi has not gone with the accused persons and maternal parents to the police station, then she is presumed to be with the family of Narayan Singh because Poorvi has also deposed that she used to play with Shavi and Ashish who are the grand son and daughter Narayan Singh. The defence has not given any suggestion to PW1 Pushpa Rani, PW6 Satyawan and PW10 Poorvi in their cross examination that as the PW10 was with them since 2910.2008, hence neither the statement of PW10 was ever recorded nor she deposed before the court in her evidence voluntarily and has become as a tutored witness. The defence did not put this question intentionally to PW1 and PW6 that when and from where they took the custody of the child. The witness could have given right answer at the time of their cross examination. The false defence taken by the accused persons that Poorvi was taken by accused Nirmala with DW3 Sikandar to village Sarangpur on 29.10.2008 becomes an additional link in proving of the presence of PW10 on the spot at the time of murder and against the accused as an additional incriminating piece of evidence.
It is further submitted that it has been admitted that on the point of proof of arrival of the PW1 Pushpa Rani to India on 25.06.2008 at the time of delivery of deceased and telephonic call and conversation between the deceased and parents. It is admitted in the statement of the accused persons recorded under section 313 Cr.P.C. As such joining of the first informer of the crime to investigation and not citing him as a witness by the prosecution is not fatal to its case. It is S.C. No. 41/3/10 Page32/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC also relied upon Trimukh Maroti Kirkan Vs State of Maharastra, (2007) 110 Scale190 SC. It is also contended that the murder was committed inside the house. Burden to prove its case on prosecution would be of light character under section 106 of Evidence Act. The presumption of a fact is a rule in law of Evidence that a fact otherwise doubtful be inferred from certain other proved facts. The motive has been proved by the prosecution at the behest of PW1 Pushpa Rani, PW5 Harender, PW6 Satyawan and PW12 Amit. All the said witnesses have deposed specifically about the fact that the uterus of the deceased had been removed at the time of delivery and the deceased was not able to conceive in future and was not able to give male child to the family while the accused persons were desperate to beget a male child for the family so that the dynasty could continue. And the accused persons were bent upon to get remarried accused Sanjeet while the deceased was opposing the said remarriage of the accused Sanjeet. The removal of the uterus is proved in the post mortem report Ex.PW8/A and the same is admitted by the accused persons in their statement under section 313 Cr.P.C. PW8 has specifically opined that after going through post mortem report and examination of weapons that injury mentioned in the post mortem report are possible with this weapon or similar such weapon. It is admitted case that the deceased has died an unnatural death. It is not a suicide or an accident. After coming to India, PW1 Pushpa Rani had stayed for 15 days in India when the uterus of the deceased was removed and the fact told by S.C. No. 41/3/10 Page33/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC deceased to PW1 that when the accused Nirala and Sanjeet came to know about the removal of the uterus, they started to harass the deceased on account of unable to beget in future and for remarriage of Sanjeet, is of no use as it cannot be disbelieved that the deceased could not have disclosed the harassment. When all the accused persons have their own mobile phones and they also admitted the making of the call to PW1 Pushpa Rani in London on 24.06.2008 then it can not be presumed that the deceased would not have talked on phone to their parents for the years. The defence has made contentions that the prosecution witnesses improved their version on the material particular. This contention of defence holds no water in it, as FIR is not an encyclopedia of all the facts and circumstances of the case, FIR is a statement on the basis of which the investigation is commenced. Hence, the statements given by the witnesses thereafter are as good statements as the earlier one, on the basis of which the FIR was registered. It is also relied upon AIR 2003 SC 4140, Superintendent of Police, CBI and Ors. Vs Tapan Kumar Singh, para no.20.
It is further submitted by Ld. Counsel for the complainant that minor contradictions in the evidence of witnesses are bound to occur in the prosecution case the same does not affect the credibility of the case. So far as with respect to the conspiracy, it is settled law that conspiracy is hatched in secrecy and direct evidence regarding conspiracy can be rarely seen and it can be inferred form the other proved facts of the case and also relied upon AIR 2008 SC 2991, S.C. No. 41/3/10 Page34/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC Yogesh @ Sachin Jagdish Joshi Vs State of Maharastra. In the present case, the conspiracy was so as to get remarried accused Sanjeet for bringing the male child in the family for carrying on the dynasty hence screening of/sparing of the accused Sanjeet with his father, both the male members of the family from the involvement in the crime was the essential part of the conspiracy as their involvement could have been defeated the whole purpose. Use of the two weapons in the commission of murder and its recovery from the house which stained with the blood of deceased directly reflects the involvement of two or more persons in the crime. According to defence, if accused Sanjeet and Baljeet were present at their house at the time of murder and had gone to their work then the involvement of accused Meena and Rajesh cannot be ruled out. Absconding of the accused Rajesh and Meena for about three and half months can be taken against them as an additional link in the incriminating evidence. No suggestion has been put to any of the said witness that the accused Rajesh and Meena were not present at the house at that time by the defence. PW10 Poorvi has deposed that Rajesh and Meena were present at the time of murder at the spot. Hence, the testimony of these witnesses remained unchallenged. The deceased was 23 years old and it cannot be presumed that she could not have tried to save herself and to caught hold of the hands of Nirmala aged 65 years if it was the Nirmala alone hence the involvement of Rajesh and Meena in the commission of murder of Anju can successfully be presumed. The testimony of the PW1 Pushpa Rani, S.C. No. 41/3/10 Page35/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC PW5 Harender, PW6 Satyawan, PW10 Poorvi, PW12 Amit inspire confidence and same is corroborated by the testimony of other prosecution witnesses. In these circumstances, the accused persons are liable to be convicted for the charges leveled against them.
10. Per contra, Ld. Counsel for the accused persons submitted that prosecution relied upon the statements of sole eye witness PW10 Poorvi, PW1 Pushpa Rani, PW5 Harender, PW6 Satyawan and PW 12 Amit in order to prove the charges. PW1 Pushpa Rani and PW6 Satyawan are the alleged witness of demands of dowry raised by the accused persons and recovery of incriminating articles. It is the duty of the prosecution to prove beyond a shadow of doubt that the testimony of their witnesses inspire confidence. On the contrary, the accused persons are able to show that the above mentioned witnesses are false and planted witnesses and their testimony are merged with falsehood, concoction, improvements, contradictions and out of vindictiveness, then the accused persons are entitled to acquittal. PW10 Poorvi is a planted and tutored witness and has been falsely introduced after deliberation and consultation. She has been introduced in order to boost the weak case of the prosecution to implicate the accused persons falsely. As per the statement of PW19 Insp. Parkash Chand, PW10 Poorvi was at the house of one Narayan Singh and PW14 W/SI Savita was present at the time of recording of statement of Poorvi. But the PW14 SI Savita did not state anything about the statement of Poorvi was recorded in her presence. As per the prosecution, the statement of S.C. No. 41/3/10 Page36/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC PW10 Poorvi was recorded at the house of Narayan Singh on 30.10.2008 but the Narayan Singh was not joined in the investigation. The statement of Poorvi under section 164 Cr.P.C. was not recorded and her statement was not corroborated by the statements of PW1 Pushpa Rani and PW6 Satyawan. They must have asked about the incident, if she had really a witness of the incident. She must have told to the PW1 Pushpa Rani and PW6 Satywan but but both these witnesses never stated even a single word in their statements recorded by the police or by SDM regarding the factum of presence of Poorvi as an eye witness of the occurrence.
It is further submitted by Ld. Defence counsel that The PW6 Satyawan given a written application Ex.PW6/N to the police on 03.11.2008 mentioning the name of the accused Meena and Rajesh. But there is no specific allegations leveled against them. Poorvi in her statement had not made any specific allegations against the accused Rajesh and Meena. There is no documents prepared by the investigating officer to corroborate the statement of PW10 Poorvi as recorded on 30.10.2008 at the house of Narayan Singh. Even no entry was made in the general diary of the police to this effect. Even the name of Poorvi was not mentioned in the reply filed by the investigating officer to the anticipatory bail application of the accused Rajesh. Name of any witness was not mentioned in the reply to the anticipatory bail. As per the prosecution, PW10 Poorvi is the only one eye witness, it does not appeal to any reason that the investigating S.C. No. 41/3/10 Page37/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC officer could forget to mention her name in reply opposing the bail application of Rajesh or in general diary. PW19 Insp. Parkash Chand in his examination admitted that during the investigation till last date on 29.10.2008, there was no evidence against the accused Rajesh nor his name appeared anywhere. He has recorded the statement of the complainant on 29.10.2008 and name of accused Rajesh and Meena not appeared. Satywan met him during 30.10.2008, 31.10.2008, 01.11.2008 and 02.11.2008 but he did not mention anything specifically about Meena and Rajesh. It is also admitted by PW16 Insp. Parkash Chand that eye witness was introduced after discussing the matter with the senior prosecutor on 15.01.2009.
It is further contended that the PW10 Poorvi was two years and four months old, at the time of occurrence and her deposition was recorded after a gap of one year and four months. The witness was of very tender age at the time of occurrence and at that age human memory is not developed. At the age of two years and four months, any fact in her memory of the child of this age cannot retain for one year and four months. It reflects that this witness is a planted and tutored witness and same does not inspire confidence. The testimony of PW10 Poorvi has not been corroborated from any quarter thus the same cannot be considered against the accused. To this effect, it is relied upon Samey Singh Vs State 1998 (1) JCC 218 Delhi, it has to be ensured that the child had not been tutored and there is some corroboration available to the testimony of child witness. In 1953 S.C. No. 41/3/10 Page38/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC Cr.L.J. 1344 Patna, Jagan Nath VS State 1952 Cr.L.J. 1200 Raj, it is observed that the child witness is prone to imagination. It is risky to rely upon child witnesses as they often mistake dreams for reality, repeat glibly as of their own knowledge what they have heard from others and are greatly influenced by fear of punishment, by hope of reward and by desire of notoriety.
Ld. Counsel for the accused also contended that the testimony of PW5 Harender and PW12 Amit stated that they visited on 26.10.2008 at the matrimonial house of deceased to deliver sweets on the eve of Diwali and the accused persons were present at the very house and threatened to kill the deceased apart from the other allegations. The accused persons were never present there nor these two witnesses visited the matrimonial house and the accused persons never demanded Rs.10 Lakh and threatened to kill the deceased. The story of 26.10.2008 is false, fabricated and is a creation of afterthought which is evidence that the FIR is completely silent about the incident of 26.10.2008. PW6 Satyawan has given a written complaint Ex.PW6/N, wherein he has not mentioned the incident on 26.10.2008. No specific role of the accused Rajesh and Meena and the other accused persons mentioned. PW1 Pushpa Rani and PW6 Satyawan in their statements do not say even a single word regarding the visit of PW5 Harender and PW12 Amit to the matrimonial house and the alleged threats were given by the accused persons. PW5 Harender in his deposition before the court admitted that he has not told this fact to his Mama Satyawan S.C. No. 41/3/10 Page39/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC after the return from Bakkarwala. PW12 Amit has stated that he has told about everything which has happened on 26.10.2008 to his father and further stated that he had a telephonic connection with the inlaws of the deceased.
It is further contended by Ld. Counsel for the accused persons that the statement of PW5 Harender and PW12 Amit were recorded after a gap of more than two and a half months. The incident had occurred on 29.10.2008. However, the statement was recorded on15.01.2009. It is not the case of the prosecution that these witnesses were not available in the town and for this reason, their statements could not be recorded. It shows that these witnesses have been introduced rather to create a careful conspiracy against the accused persons. It also came on record that PW5 Harender and PW12 Amit were present at the time of post mortem and at the time of inquest and inquiry conducted by PW2 P.P. Mishra, the area SDM. Both of them did not come forward and did not tell anything to the SDM or the police regarding their alleged visit on 26.10.2008 at the matrimonial house of the deceased. Counsel for the accused persons also relied upon :
(i) Dina Nath Singh & Ors Vs State of Bihar AIR 1980 SC 1199.
(ii) State of U.P. Vs Mundrika 2001 (1) 61 SC.
(iii) G.B. Patel Vs State of Maharashtra AIR 1979 SC 135.
S.C. No. 41/3/10 Page40/90St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC PW19 Insp. Parkash Chand admitted that the statement of witnesses were recorded after objections were made by the prosecution on 15.01.2009 and in order to get the objections removed, the statements of Satyawan, Amit and Harender were recorded which shows that the PW5 and PW12 did not visit the matrimonial house of the deceased Anju. Thus, these witnesses are falsely introduced in the prosecution case. So far as with respect to the recovery of blood stained clothes at the instance of accused Nirmala, gold chain and cash amount of Rs.50,000/. As per the prosecution, accused Nirmala was arrested on 30.10.2008 and she allegedly made disclosure statement Ex.PW14/A and got recovered the above said articles. To this effect, it is contended that the PW16 SI Pardeep and PW19 Insp. Parkash Chand, the crime team and the dog squad had visited the spot and had inspected the house in question on 29.10.2008. PW16 SI Pardeep admitted that he has admitted that he had conducted the house search and PW19 Insp. Parkash Chand in cross examination admitted that he saw the room near the place where the dead body was lying but he did not go on the roof. So when the house was inspected and searched by PW16 and PW19, the crime team and more particularly by the dog squad and still the clothes, gold chain and Rs.50,000/ were not found which establishes that these articles were not there at all. If there had been any blood stained clothes, then they would have been found out by the dog squad on 29.10.2008 itself. The fact that no blood stained clothes were found on 29.10.2008 by the dog squad and by the S.C. No. 41/3/10 Page41/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC investigating officer shows that there was no blood stained clothes in the room and the recoveries are false and fabricated.
It is further submitted by Ld. Counsel for the accused persons that the arrest of the accused Nirmala on 30.10.2008 from the house of Narayan Singh is conflict with the evidence of PW16 SI Pardeep. This witness has admitted in his cross examination that accused Nirmala along with accused Sanjeet and Baljeet Singh were present at the spot. However, accused Meena and Rajesh were not present at the spot and nobody tried to run away from the spot. The arrest of the accused persons from the house on 30.10.2008 is doubtful and in such circumstances, the disclosure statement is also become doubtful. So far as with respect to the seizure of the broken bangles from the spot on 29.10.2008, the prosecution has fabricated this piece of evidence to create false evidence against the accused Nirmala. Since, no mention of broken bangles in the endorsement Ex.PW16/A was made, however other articles seized are mentioned in detail. Position of broken bangles not shown in the rough site plan and scaled site plan whereas other articles position is shown in detail. PW16 SI Pardeep is the first person who reached at the spot and admitted in the cross examination that whatsoever inspected by him on the spot same has been mentioned in the rukka. If the broken pieces were lying on the spot, same should have been mentioned by PW16 SI Pardeep Kumar in Ex.PW16/A. The circumstances proved that the prosecution is pedding the case and their case is liable to be rejected on the sole ground of pedding alone.
S.C. No. 41/3/10 Page42/90St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC So far as with respect to the absconding of the accused Rajesh and Meena, it is settled principle of law that the accused can abscond for a variety of reasons and no conviction can be based on this ground alone and also relied upon Rakesh Kumar Vs State 2009 (163) DLT 658 D.B, Jitender Kumar Vs State 2009 (1) JCC 491.
It is further contended by defence counsel that the investigation conducted by the police is tainted and infirm, since the prosecution failed to connect the accused Nirmala with the weapon of offence. The fingerprints from the alleged weapon of offence and the spot, some fingerprints were available but the same were not linked to the accused persons. The chance prints were not lifted from the spot or from the weapon of offence. Fingerprints of the accused persons were also obtained but the same were not matching as per the expert opinion. It is further submitted that the stand of the defence that some robbers came and committed the alleged offence cannot be ruled out and appears more probable but the police instead of investigating this serious difficult and time consuming theory, choose the easy course to implicate the accused persons at the instance of complainant party, who without going through the facts of the matter, blamed the accused persons out of sheer vindictiveness.
It is further submitted by Ld. Counsel for the accused persons that there are two possible stories and contradictory piece of evidence as mentioned above are available on record and one of them goes in favour of the accused and one against the accused then the Supreme S.C. No. 41/3/10 Page43/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC court says the benefit of doubt must go to the accused persons. The chappal imprint is clearly visible in photograph Ex.PW14/D20. No investigation was carried out by the police to find out the source of the imprint of chappal. The reason for the same is that the police did not want to go to the difficult part of the investigation rather chose the easy way of implicating the accused persons at the instance of the complainant. The testimony of all the prosecution witnesses are contradictory, inconsistent, unworthy of credence, unreliable and lot of pedding was done by the police. In these circumstances, the prosecution failed to prove this case and the accused persons are liable to be acquitted.
11. In view of the aforesaid submissions made by Ld. Counsel for the complainant, Ld. APP for state and Ld. Counsel for the accused persons, the material on record, authorities cited by them. The defence counsel has mainly contended that there are material defects in the investigation conducted by the investigating officer. The alleged crime has been committed by some other persons who entered inside the house with the motive to commit robbery or dacoity, whereupon at the time of the incident only the deceased was present. The accused persons were not available in the home i.e. place of incident. The blood stained clothes of the accused Nirmala, bangles etc. were planted by the police. The testimony of the child witness PW10 Poorvi is not trustworthy and she has been planted.
S.C. No. 41/3/10 Page44/90St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC Defective Investigation, Improvements and Contradictions :
12. In a serious case like murder, investigation must be fair, honest and above board. There should not be undue or undesirable delay in investigation or crime. Unexplained delay in recording statement of witnesses may throw doubt on the bonafides of the prosecution case. Inordinate delay may raise suspicion and may give rise to the suggestion that the investigation may not be impartial and unbiased. If the investigation officer deviates from truth on a minor point, his evidence may not be discarded altogether though the court may not place implicit reliance on his evidence. Laxity in investigation causing inconsistencies in the case of the prosecution may be regarded as fatal and the court may grant benefit of doubt to the accused. But where there is sufficient evidence on record, which is otherwise reliable minor deviations may not affect the case of the prosecution. Similarly, though delay is undesirable, in absence of hostile animus or motive to implicate the accused falsely,no adverse inference can be drawn against the prosecution.
The courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by courts while S.C. No. 41/3/10 Page45/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved.
Defective investigation may discredit the prosecution, but prosecution evidence may not necessarily be discarded on that ground. If the evidence is otherwise reliable and trustworthy, the court may convict the accused. Reminiscence of investigating officer will not ipso facto weaken the case of the prosecution. Courts should not be influenced by suspicious roles played by the investigation officer during investigation and criminal justice should not be made a casualty for wrongs committed by investigating officers. In cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect and to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.
13. In case titled as Akbar & Anr. Vs State 2010 III AD (Delhi) with reference to the decisions of the Supreme Court reported as Tahsildar Singh Vs State of UP AIR 1959 SC 1012, Bharwada Bhoginbhai Hirjibhai Vs State of Gujarat AIR 1983 SC 753 and Leela Ram Vs State of Haryana AIR 1997 SC 3717, 13 principles to be followed while evaluating evidence of eye witnesses were culled out being : S.C. No. 41/3/10 Page46/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC
(i) While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
(ii) If the court before whom the witness given evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
(iii) When eyewitness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
(iv) Minor discrepancies on trivial matters not ouching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to S.C. No. 41/3/10 Page47/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
(v) Too serious a view to be adopted on mere variations falling in the in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
(vi) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(vii) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(viii) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person' s mind whereas it might go unnoticed on the part of another.
(ix) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(x) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work S.C. No. 41/3/10 Page48/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
(xi) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(xii) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events,or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnesses by him.
(xiii) A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.
14. So far as with respect to the investigation conducted, the PW 16 SI Pardeep on receipt of DD No.34A on 29.10.2008 reached at the place of incident and found the dead body in a pool of blood. The DD S.C. No. 41/3/10 Page49/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC No.34A received by duty officer at about 06:40 PM through PCR call made by Lady Constable Mamta. SI Pardeep Kumar prepared the rukka and handed over to Ct. Ved Parkash for registration of the FIR. Message was sent to dog squad and senior officers. The articles as per the seizure memo Ex.PW6/A to F, K and L were seized. An application for preserve the body in mortuary was also moved. The facts of non matching of the fingerprints of the accused persons also pointed out towards unfair and tainted investigation. The investigating officer has not lifted the imprints of the chappal which is visible in the photographs Ex.PWD20 and no investigation was carried out to find out the imprints of the chappal. PW16 SI Pardeep in his cross examination stated that all the family members of the accused party were present on the spot except accused Rajesh and Meena. No report with respect to the dog squad was obtained. The door of the staircase was already opened and any person can go after commission of the crime and by jumping from the staircase.
PW19 Insp. Parkash Chand admitted in the cross examination that none of the person from the crowd was joined in the investigation. The chappal imprints came at the spot after his arrival and he does not know that these chappal imprints were of whom. He further stated that it may be imprints of chappal or shoes belonging to the members of crime team. The main door of the house was of iron one which was already open. There are rooms on the entries of the main gate of the house and gate of the house was of two different S.C. No. 41/3/10 Page50/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC things which is the entry gate of the house and entry of main gate. There was no injury on the back of the dead body of the deceased. He saw 20 wounds on the frontal side of the dead body of the deceased. The dogs squad could not go to the roof as the door was locked. He has seen the room where the articles were lying scattered. PW19 Insp. Parkash Chand also admitted that the complainant Satyawan met him during 30.10.2008, 31.10.2008, 01.11.2008 and 02.11.2008. But he did not specifically stated the name of Rajesh and Meena in his supplementary statement.
PW12 Amit was present in the mortuary also and last rites ceremony. It is admitted by PW19 Insp. Parkash Chand that he recorded the statement of Satyawan on 15.11.2008 rather it was recorded on 15.01.2009. In order to remove the objection, he also recorded the statement of Satyawan, Harender, Poorvi and Amit. With respect to the depositions made by PW16 SI Pardeep and PW19 Insp. Parkash Chand with respect to the investigation and the pointing out the defects in the investigation, it is the matter of record that the statement of PW10 Poorvi was recorded on 30.10.2008 and in her statement Poorvi categorically stated that " Dadi ne meri mummy ko chaaku se mara tha, mummy ke pet se khoon nikla tha." Similarly, Poorvi in her statement before the court also stated that " Dadi ne mara tha chaaku" .
With respect to the imprints of Chappal, PW19 Insp. Parkash Chand in cross examination also gave the explanation that the alleged chappal imprints might have of the shoes of members of crime S.C. No. 41/3/10 Page51/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC team at the time of inspecting the scene of crime. With respect to the defective investigation, the submissions made by the defence counsel that the investigation does not reveal about the presence of the accused persons at the scene of occurrence and to the recording of the statement of PW10 Poorvi. The evidence of eye witness is to be scrutinized carefully in consonance with other circumstantial evidence, to consider the impact of it. Even if the investigation is illegal or if it is suspicious, the rest of the evidence must have its own value and independent assessment. The present case is based on the deposition of the statement of PW10 Poorvi and same has to be carefully examined. Even if the investigation is illegal or even suspicious, the rest of the evidence must be scrutinized independently of the impact of it. The criminal justice should not be made casually or the wrongs committed by the investigating officer in the case. The PW10 Poorvi is the witnessed the ghastly incident of attack, PW5 and PW12 are the witnesses of the incident dt. 26.10.2008. The PW1 and PW6 narrated the incident of harassment, cruelty and demand of Rs.10 Lakh. The response, phenomenal patterns of incident in such a situations differs from person to person and it cannot be held that response of every and any human being would be similar on such occasions. The family member are kith and kin of the deceased, were under the shock and nervousness. It the witnesses are present and they are not examined by the investigating officer, it shows the mismanagement on the part of the investigating officer. The witness who were roaming around were the S.C. No. 41/3/10 Page52/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC responsibility of the investigating officer to examine them. All the public witnesses i.e. PW1, PW5, PW6, PW12 and PW10 are supporting evidence to complete the link in the chain. There is no reason to disbelieve their evidence. The contradictions, improvements are natural one, they are bound to occur. It is obviously for the reasons beyond on the part of the complainant and public witnesses. FIR is not encyclopedia of facts :
15. Counsel for the accused persons also contended that the name of the accused persons and details of the incident is not mentioned in the FIR nor any particulars or descriptions of the neighbourers was mentioned in the DD entry/FIR to this effect, it has been conceded by the counsel that FIR is not encyclopedia which must disclose the facts and details. The police registered the FIR by telephone. There is no illegality if the sufficient detail was not covereged. It is not necessary to specify about the truthfulness of the investigation if the information lodged with the police which disclose the commission of the offence, the police officials bound to conduct the fair investigation. The first information need not necessary to explain all the aspects of the commission of the offence committed. The informer is not required to reproduce the ingredients of section 154 Cr.P.C. At this stage, it is enough if the police officer on the basis of the information given suspect the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed.
The information given disclosing the commission of cognizable offence S.C. No. 41/3/10 Page53/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take action in accordance with law. The true test is whether the information furnished provides a reason to suspect the commission of an offence, which the concerned police officer is empowered under section 156 of the code to investigate. The daily entry number 34A dt. 29.10.2008 disclosed the commission of the offence by some unknown informer through the PCR and the same has been diverted to the police station, on the basis of the said information of the murder, the investigation came into motion. There was no information with respect to the robbery or dacoity. A direct information was received that a murder has been taken place at Bakkarwala.
16. The statement of complainant Satyawan was recorded on 29.10.2008 itself vide Ex.PW6/A, and FIR under section 302/498A/34 IPC vide daily diary no. 38A at 09:00 PM dt. 29.10.2008 was registered through duty officer HC Suresh Kumar.
Presence of PW5 Harender and PW12 Amit on 26.10.2008 :
So far as with respect to the statement of PW5 Harender and PW12 Amit regarding their visit to the matrimonial house on 26.10.2008 to deliver the sweets on the eve of Diwali whereas alleged that the accused persons were present at the house and demanded Rs.10 Lakh and also threatened to kill the deceased and also taunted to the deceased that her uterus has been removed, she cannot be a mother in S.C. No. 41/3/10 Page54/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC future. The names of accused Rajesh and Meena are not mentioned specifically in their statement who are living separately at H. No. 65A, Nangloi Extension 2B, Delhi and they are apprehended on 12.02.2009.
Similarly, the accused Nirmala sister of DW3 Sikandar gave utmost respect in the old age when he has taken his sister on Goverdhan Puja to celebrate Bhaiyadooj since the other brothers of the accused Nirmala were residing in the same vicinity. She has gone far away to Sarangpur, Malik Pur, Delhi. The deceased being in young age is also given same respect as given to the accused Nirmala. There is no contrary evidence to prove that on 26.10.2008, the PW5 Harender and PW12 Amit had not gone to the matrimonial house of the deceased Anju. The accused Nirmala did not celebrate Bhaiyadooj with her other two brothers living in the same village Bakkarwala and she has opted to go to Sarangpur. Even though, the other brothers have not come forward to depose in defence that the accused Nirmala has also come to their house earlier on the occasion of Bhaidooj. The PW5 Harender and PW12 Amit stated in their deposition that the deceased Anju told them that " Bhaiya ye log mujhe jinda nahi rahne denge. Yeh kahte hai ki London se aane ke baad na hi tu 10 Lakh lai hai aur na hi tu Maa Ban Sakti hai" . In cross examination, PW5 Harender stated that police met first time in mortuary but his statement was not recorded at that time. Though he told the police to record his statement. The police came to his maternal uncle on 15.01.2009 and recorded his statement. He did not tell to the police or the SDM that inlaws of Anju that the S.C. No. 41/3/10 Page55/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC accused persons used to torture her because of demand of dowry as the atmosphere not permitted the same. PW12 Amit Kumar in cross examination, he met to the police in January 2009. But he had gone to the house of his sister at about 04/04:30 PM on Dhan Teras. The deceased was having a separate room on ground floor and living along with his husband.
So far as with respect to the incident dt. 26.10.2008 only PW 5 Harender and PW12 Amit have stated in their examination and their statement to this effect was recorded on 15.01.2009 by the police. Before 15.01.2009, they have not uttered any word to the police or any other authority. Similarly, DW3 Sikandar is at par as he has not made any complaint to the police or any other authority with respect to the defence taken by the accused persons, for taking the accused Nirmala at his house. Both the witnesses i.e. PW5 Harender and PW12 Amit are the brothers of the deceased as such they are also oblige to give gifts and sweets on the occasion of Diwali to their sister Anju.
17. The burden of proof where some facts are within the personal knowledge of the accused was examined in State of Bengal Vs Mir Mohammad Omar & Ors (2000) 8 SCC 382. The Apex court took note of the provision of section 106 of the Evidence Act in the aforesaid judgment and laid down following principles : " 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 fossilized doctrine as though it admits no process of intelligent S.C. No. 41/3/10 Page56/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC 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."
" In this case, when the prosecution succeeded in establishing the aforenarrated 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 the conditions such as this"
" 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 exercise 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.
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 S.C. No. 41/3/10 Page57/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC 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."
18. The accused persons have simply denied for the appearance of the PW5 Harender and PW12 Amit on 26.10.2008 and on the other hand, the version has been affirmed by both the witnesses even in their cross examination. The post mortem report Ex.PW8/A and admission of the accused persons in their statement under section 313 Cr.P.C. that the decased' s uterus has been removed and she was unable to deliver a child. Mere delay to recored the statement by the investigating officer is no fault on the part of the PW5 Harender and PW12 Amit Kumar. Rather they themselves came forward to get record their statement and also told the facts of 26.10.2008 to the investigating officer, it is not recorded, it is foul play designly committed by the investigating officer. Medical Expert Opinion :
PW8 Dr. Manoj Dhingra conducted the post mortem on the dead body of the deceased Anju and proved that there are as many as 20 stab wounds on the frontal portion of the body and there was no stab injury on the back side of the body of the deceased Anju. PW8 explained the injuries as under : External Injuries : S.C. No. 41/3/10 Page58/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC
1. Stab wound over right side :
(i) Incised penetrating wound over axillary fold right side 5cm below the top of shoulder of size 5.2cm X 2.3cm. It has cut the skin, muscle of posterior part right arm through and through and further cut the skin intercostal right side posterior axillary line between 2nd and 3rd rib further cut the plane and extend the chest cavity by cutting aper of right lung paranchymo, above and downward direction is obliquelly vertical.
(ii) Incised penetrating wound present in front of chest of size 2cm X 1 ½ CM. It has cut the skin, muscle and penetrated the right lung in between the 6th and 7th intercostal space.
(iii) Stab incised wound present in chest of size ½cm, 1cm below the above wound in between the 7th and 8th incostal space, it penetrating the muscle skin.
(iv) Stab incised the wound present over abdomen 3cm above of size 2cm X ½ cm, it penetrating the muscle, skin and then to liver right lobe.
(v) Stab incised penetrating wound of size 2 X ½ cm at post axillary line, it penetrating the skin, muscles.
(vi) Stab incised wound of size 1 ½ cm X ½ cm, it penetrating the skin muscle and then to right kidney hepatic area of right kidney.
(vii) Stab incised wound of size 2 X ½ cm, it penetrating the skin and muscles.
S.C. No. 41/3/10 Page59/90St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC
(viii) Stab incised wound of size 2 X ½ Cm of side at post axillary line.
(ix) Stab incised wound of size 2 X ½ cm of size 3 ½ cm X 1cm of back of scaplar region at the level of T3.
(x) Stab incised wound of size 3cm X 1cm at the level of T4 at back of scaplar region.
(xi) Stab incised wound of size 3cm X 1cm at the level of T6 at interior angle of scapla.
(xii) Stab incised wound of size 4 X 1cm at the level of right thigh.
2. Stab wound over left side :
(i) Stab incised wound over left hand 2cm below left elbow joint of size 3cm X 1cm it penetrate the skin and muscle.
(ii) Stab incised wound on left hand 3 ½ cm below elbow joint of size 2cm X ½ cm it penetrating the skin and muscle.
(iii) At back stab incised wound of size 4cm X ½ cm to its pearse the left kidney.
(iv) Stab in are wound of size3cm X ½ cm, it penetrating skin and muscle then penetrating to the spleen.
(v) Stab wound of size 1cm over left thigh.
(vi) Stab wound of size 1cm X ½ cm on left lower thigh.
3. Neck :
(i) Stab incised wound over neck of size 8cm X 1cm. 2 ½cm above manubrin sterni.
S.C. No. 41/3/10 Page60/90St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC
(ii) Stab incised wound over neck of size 6cm X 1 ½ cm. 1 ½ CM above manubrin sterni with cut at ant jugular vain with cut of sternocleidomcstoid muscle.
The cause of death is opined as hemorragic shock as a result of multiple stab injuries. Time since death is approximate 19 hours. The PW8 also given the opinion on the request of the PW19 Insp. Parkash Chand regarding the recovered weapon of offence Ex.PW8/B, his opinion is that " after going through the post mortem report and examination of the weapon, the injuries mentioned in the post mortem report are possible with the weapon or similar such weapon". Forced entry to the Place of Incident :
The information recorded in the DD No.34A was about the murder and not about the dacoity. DW3 Sikandar asked to the people who gathered at the spot and enquired about the incident, all of them told that a murder has been committed. DW3 has not told the name of the person who has informed him. The place of occurrence is a populated area and there are thorough fair and people in the gali were present. If there was any incident of dacoity, the deceased must have made a hue and cry, the neighbours must have collected there and even though the robbers might have seen or noticed by the people who were present in the gali or in the neighbourhood. Even though the motive of the robbers is to rob the valuables, cash and jewelery but in the present case, no cash and jewelery is reported to be looted from the house of the deceased. The jewelery articles which were worn by the deceased S.C. No. 41/3/10 Page61/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC like ear rings, gold chain as shown in the photographs Ex.PW4/1 to 25, have not been looted by the assailants. The front door and back door of the house were also found opened. The dog squad came to the place of crime also could find out some incriminating articles against the robbers but nothing was found which could suggest robbery. The Ex.PW2/C, death summary also showed that the deceased was wearing ornaments at the time of incident. The number of stab wound over the frontal part of the body of the deceased also shows the motive of the assailant was to commit the murder and not to commit robbery. It is further that the use of two weapons of recovery from the place of incident itself evident that the incident has not committed by one person. There are more than one person who have committed the murder. The blood stained towel was also recovered from the spot. There can be easily removed the fingerprints from the weapon of offence as well as other evidence found left to be vanished by the assailants. The sum of Rs.50,000/ was also got recovered by the accused Nirmala from the adjacent room, if the assailants were robbers, they must have taken the cash from the almirah and boxes. It is reported by the crime team that the lock of the almirah and box were intact.
The defence counsel admitted that soon after arrival of the accused Nirmala and Sikandar from the village Sarangpur, they have no occasions to check the valuables of the house were missing or not then how the police can arrange or plant a sum of Rs.50,000/ and gold S.C. No. 41/3/10 Page62/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC chain, the same is not planted upon the accused persons by the police from their own pockets and the police cannot plant the huge amount and gold chain without any motive. There is no evidence of forced entry inside the house. In Crl. L.J. (2010) 85, Ramesh Kumar Vs State, it was observed that "i f a house wife is murdered inside her matrimonial house and there is no evidence of a forced entry inside the house and the time of the murder is night time and if the husband is not able to satisfactorily explain his being absent from the house, it would constitute an incriminating circumstances of very high inculpatory value against the husband. The trinity of circumstances; of the deceased being murdered at her matrimonial house; forced entry into the house being ruled out; and the conduct of the husband, motherin law and fatherinlaw and who did not weep or touch the body are sufficient to reach to a conclusion of guilt qua the assailants Nirmala, Baljeet and Sanjeet."
Motive or Mens Rea :
19. Even though the existence of motive loses significance when there is reliable ocular evidence on record or absence of motive acquire some significance regarding the probability of the prosecution case. In the present case, the accused persons have taken the defence that they were apprehended on 29.10.2008. But it is denied by the accused persons themselves in their reply to the question in their statement under section 313 Cr.P.C. by stating that they do not know. On 29.10.2008, PW16 SI Pardeep and PW19 Insp. Parkash Chand had S.C. No. 41/3/10 Page63/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC reached at the place of incident after receiving the DD No.34A, the accused Nirmala, Baljeet and Sanjeet have projected to be arrested on 30.10.2008. But on the same time they have stated contrary that they were in police custody since 29.10.2008.
20. So far as with respect to the accused Rajesh and Meena, PW 5 Harender and PW12 Amit have stated that both these accused persons were present on 26.10.2008 at the matrimonial house of the deceased when they visited there on the occasion of Dhan Teras for giving gifts and sweets. The conspiracy of committing murder of the deceased Anju by the accused Nirmal, Baljeet and Sanjeet to get remarried the accused Sanjeet for carry on their dynasty. Therefore, to carry out the motive, the accused Sanjeet and Baljeet has been screening part as both are the male members of the family for involvement in the crime. No other male member came forward to defend the accused Nirmala. Therefore, to get the success for the object to commit the murder of Anju, the accused Nirmala was screening both the accused Baljeet and Sanjeet behind the curtain but accused Nirmala alone being an old age lady cannot have a courage and physical strength to overpower upon the deceased Anju and to cause her 20 stab injuries which shows that the murder has been committed by more than one person. The accused Sanjeet and Baljeet was showing their absence at the time of murder and alleged that they had gone to their work place for Vishwakarma Puja. After the incident, they have appeared at the place of incident soon before the appearance S.C. No. 41/3/10 Page64/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC of the accused Nirmala with DW3 Sikandar. The deceased was about 23 years old. It can be presumed that if the accused like Nirmala had committed the crime alone, the deceased might have saved herself and cannot overpower upon the accused Nirmala. Therefore, the involvement of the accused Nirmala along can be ruled out easily. The PW10 Poorvi has not given any specific role to the accused Meena and nothing has been stated against the accused Rajesh to secure his presence. Mere absence for a period of three months from the place of incident does not put the needle of guilt against them. There can be variety of reasons of absconding away by the accused Rajesh and Meena and no conviction can be based on this ground alone and also relied upon the judgment of Rakesh Kumar Vs State 2009 (163) DLT 658 D.B., it was observed that abscondance of the accused in itself is not sufficient to infer the guilt of the accused. Sometimes, innocent persons run away fearing the false arrest. The Hon' ble Supreme Court observed this view in case titled as Datar Singh Vs State of Punjab, AIR 1974 SC 1193. The prosecution cannot benefit from merely suspicious circumstance that the accused did not surrender or was not traceable for nearly one year.
Criminal Conspiracy :
21. The Ld. Defence counsel contended that there is no criminal conspiracy as defined under section 120A IPC. There is no evidence to show as to when and where the conspiracy was hatched. There is also no evidence on record as to where and when any of the conspirators S.C. No. 41/3/10 Page65/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC met to hatch this conspiracy. There is also nothing on record to show that accused persons met any of the accused persons at any time prior to the alleged murder. There is nothing on record to show that there was any communication or attempt to communicate between the accused persons for the purpose of furthering the objects of the conspiracy. The investigating officer has not collected any defence that there was some prior meeting of minds of the assailants or there was any investigation on this aspect done by the investigating officer.
22. The elements of a criminal conspiracy have been stated to be accomplished (b) a plan or scheme embodying means to accomplish that object (c) an agreement or understanding between two or more of the accused persons where by they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means in the jurisdiction where the law required an overt act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this, it necessarily follows that unless the statue so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Therefore the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both. To bring home the charge of conspiracy within the ambit of section 120B, it is necessary to establish S.C. No. 41/3/10 Page66/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC that there was an agreement between the parties for doing an unlawful act. It is difficult to establish conspiracy by direct evidence.
To establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of goods or services in question may be inferred from the knowledge itself. The prosecution has not to establish that a particular unlawful use was intended, so long as the goods or services in question could not be put to any lawful use.
Direct evidence to prove conspiracy is rarely available. Therefore circumstances and conduct of the assailants proved before, during and after occurrence has to be considered to decide on each complicity of the accused. The conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. Usually both the existence of the conspiracy and it objects have to be inferred from the circumstances and the conduct of the parties. Usually both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused. In a joint trial, care must be taken to separate the admissible evidence against each accused and the judicial mind should not be allowed to be influenced by evidence admissible only against other. Cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course , each one of the S.C. No. 41/3/10 Page67/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC circumstances should be proved beyond reasonable doubt as observed in a case titled as State V Navjot Sandhu 2005 Cri LJ 3950 (SC).
It was further observed in judgment ( Supra) that " A few bits here and a few bits there was which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy. The circumstances before, during and after the occurrence can be proved to decide about the complicity of the accused.
23. In Parliament attack case, appellant Afzal was proved to be a partner in the conspired crime of enormous gravity. The circumstance clearly established that he was associated with the deceased terrorist in almost every act done by them in order to achieve the objective of attacking the Parliament House. His conduct and actions antecedent contemporaneous and subsequent, all pointed to his guilt and were only consistent with his involvement in the conspiracy to commit terrorist acts. The conspiracy to commit the offence of murder in the course of execution of conspiracy was well within the scope of conspiracy to which appellant Afzal was a party. Therefore, he was held liable to be punished under section 120B read with section 302 with sentence of death. Criminal conspiracy cannot be inferred from literature and correspondence which advocate anti social activities unless such writings establish a ink between accused and accused so as to involve the entire group in a charge of criminal conspiracy.
S.C. No. 41/3/10 Page68/90St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC
24. Conspiracy cannot be assumed from a set of unconnected facts or from a set of conduct exhibited by different accused persons at different places and times without a reasonable link. Suspicion, however strong, cannot take the place of legal proof. The mere circumstances that the three accused appellants were caught together for ticket less traveling, presumably so that this circumstance might serve as a plea of alibi , cannot lead to the inference that they had hatched the conspiracy to commit multiple murders as observed in a case titled as State Vs Moti Ram AIR 1990 SC 1709.
Mere association, however, strong cannot make the members, members of the conspiracy without more. In case of assassination of former Prime Minister of India Rajiv Gandhi, wireless message showing that only main accused, conspirator were knowing about the object of conspiracy. Co accused in his confession said that he has a strong suspicion that the target of the accused persons was Mr. Rajiv Gandhi. The court held that it would not make him a member of conspiracy. Mere fact that the main accused sent message about arrest of accused persons held not sufficient to draw an inference of conspiracy against them as observed in a case titled as State Vs Nalini AIR 1999 SC 2640.
The Privy Counsel in a case titled as Daniel Youth Vs King AIR 1945 PC 140 warned that in a joint trial, care must be taken to separate the admissible evidence against each accused and the judicial mind should not be allowed to be influenced by evidence admissible S.C. No. 41/3/10 Page69/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC only against other. In Nalini case, Hon' ble Mr. Justice D.P. Wadhwa pointed out the need to guard against prejudice being caused to the accused on account of the joint trial with other conspirators. It was observed that there is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy.
25. In the present case, the accused Nirmala, Baljeet and Sanjeet including the deceased Anju are only family members who were living at that one place and there is no specific time for hatching the conspiracy. It does not require sitting together at one place, it could be ascertain by gestures, conduct and reaction. It is an admitted fact that the deceased cannot procure a child to run the dynasty of the accused persons as her uterus was removed. There was a remorseness as well as worry among the accused persons with respect to this issue. The information regarding the incident by the informer must be given to the accused persons at their house. The DW3 Sikandar and accused Nirmala has not disclosed to the villagers and neighbours about the telephone of DW3 Sikandar and the visit to the village Sarangpur. The family members of the accused did not make a call on the phone of Sikandar about the incident. The informer who is the neighbour of the accused persons did not make any call to the accused Nirmala about the incident. Rather as per the deposition of DW3 Sikandar has made a call on his home phone who is unknown to him is not supposed to the S.C. No. 41/3/10 Page70/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC informer rather the phone number of the accused persons might have with the informer. The DW3 denied about the arrival at the spot neither anybody has informed him and Nirmala nor they have enquired about the incident.
The arguments of the defence counsel that the informer is the person who was present at the spot but the prosecution did not examine anybody to this effect. The informer did not inform while he is informing about the commission of the murder to the police or to the parents of the deceased Anju regarding the incident of murder. Informer did not say about the robbery or dacoity. The manner in which the accused persons came at the spot their reaction according to the story of the defence is also a material part of the conspiracy. DW3 Sikandar prior to this incident has never came to his sister's house to take her to celebrate Bhaidooj nor any other brothers of the accused Nirmala had ever came for this purpose who are living in Bakkarwala itself. The accused persons have not stated in their statement under section 313 Cr.P.C. that apart from DW3, Nirmala has also been invited by other brothers to celebrate Bhaidooj. There is no submission given as to why the deceased Anju has not been sent to her parents' house on the occasion of Bhaidooj and why she has been left alone at home despite knowing that huge amount of cash and jewelery were lying at the place of incident. The accused Rajesh is the soninlaw of Nirmala who is the sister of DW3 Sikandar, has not attended the marriage of the accused Meena and even though he does not know the S.C. No. 41/3/10 Page71/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC telephone number of the accused Meena and Rajesh. But the DW3 Sikandar stated that he does not know the accused Rajesh and his mobile number while he is his maternal uncle. Even though he does not know the phone/mobile number of accused Meena. In these circumstances, it cannot be ruled out that the accused Sanjeet, Baljeet and Nirmala has hatched a conspiracy to commit murder and make up the false story of dacoity or robbery. The DW3 Sikander can be planted witness after due concentration and deliberation to cook up the false and baseless story.
Conduct of the accused persons :
26. The conduct of the accused Nirmal, Baljeet and Sanjeet who came at the spot, after the arrival of the police. The accused Nirmala deposed that she had gone with DW3 Sikandar and arrived at the spot after arrival of the police and she stated in her statement under section 313 Cr.P.C. that when they reached at the house, the police had come there. The DW3 Sikandar has stated that when he reached at the house of his sister Nirmala, he saw big crowd outside the house and the police was inside the house. The accused Nirmala did not weep and touch the body of the deceased Anju. If she had not touched the body of the deceased, how the blood stains came on her wearing clothes. On 29.10.2008, on the occasion of celebrating Goverdhan Pooja, all the family members have to be together to celebrate Goverdhan Pooja but the accused persons did not perform the Pooja on the day and opted to go to their alleged assignments. The conduct of the other accused S.C. No. 41/3/10 Page72/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC persons Baljeet and Sanjeet have not been explained nor explained about their work and its place so as to perform Vishwakarma Pooja. It is revealed during the examination of the witnesses that the accused Sanjeet is not working anywhere. The PW16 SI Pardeep has stated that when the complainant Satyawan reached at the spot there was apprehension of breach of peace and his deposition is also corroborated by DW3 Sikandar by stating that " Jagde jaise haalat ho gaye the". If it had a case of robbery, then the parents of the deceased would have been sympathetic to the accused persons. PW1 Pushpa Rani and PW 6 Satyawan proved that they had knowledge about the harassment of the deceased as told by the PW5 Harender and PW12 Amit about the incident which had happened on 26.10.2008 when they visited to the house of the deceased for giving sweets and gifts on the occasion of Diwali. It is admitted case that the deceased Anju had died an unnatural death and it is not a suicidal or accidental case. The information given by the informer to the DW3 Sikander and the police about the murder. The accused Nirmala at the house of DW3, on receiving the information of murder, has not confirmed it from the co accused Baljeet and Sanjeet, though they were having their own mobile phones as recovered from their personal search. The accused Nirmala, Baljeet and Sanjeet in statement under section 313 Cr.P.C. denied to be taken in police station in statement on 29.10.2008, as replied 'I do not know' . The accused persons have taken a defence to project their arrest on 30.10.2008 whereas stated that they were already in police custody S.C. No. 41/3/10 Page73/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC since night of 29.10.2008.
In case titled as Mandhari (2002) 4 SCC 308, it is held that "h usband as alleged when found his wife hanging by the neck, he neither raised any hue and cry nor called any villagers living nearby. He all alone brought down the body hanging from the roof. He thereafter did not report the matter immediately. When villagers collected, he took a plea that she had committed suicide. He also did not report the matter on his own to the police. It was held to be the most culpable circumstances found to have been proved. Where the motive was established coupled with unnatural and inexplicable conduct of the accused, it was held that he was guilty of the offence" .
27. It is observed in case titled as Anthony D'Souza (2003) 1 SCC 259, that it is a well established principle of law that in a case of circumstantial evidence where an accused offers false answer in his examination under section 313 Cr.P.C. against the established facts, that can be counted as providing a missing link for completing the chain of evidence. It offers an additional link in the chain of circumstances.
In case titled as Gurpreet Singh (2002) 8 SCC, it was observed that where there was no eyewitness account but the incriminating conduct and activity of the accused had been proved by overwhelming evidence. The accused husband had not offered any reason nor explanation except a plea of alibi which the High Court ascribed to be as false denial. The court held that there was sufficient S.C. No. 41/3/10 Page74/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC evidence on record to connect the husband with the brutal killing of his wife, the motive of which was apparent.
Confessional Statements of the Accused Persons :
28. Confessional statement of the accused persons which is soliloquy is a direct piece of evidence. It may be a conflict of emotion, a conscious effort to stifle the pricked conscience; an argument to find excuse or justification for the act; or a penitent or remorseful act of exaggeration of his part in the crime. A confession, if voluntary, can be relied upon by the court along with other evidence for convicting the accused. The confession will have to be proved like any other fact. The value of the evidence like any other evidence depends upon the veracity of the witness before whom such confession is made. It is for the court, having regard to the credibility of the witness, his capacity to understand the language in which the accused had made the statement to accept the evidence or not.
The confession statement, if admissible and reliable, can be used by the court for drawing inference as to whether the confessor shared the common object with the rest of the members of the unlawful assembly. It has been a recognized principle of law in the administration of criminal justice that the confession of a coaccused cannot be treated as substantive evidence and it can be pressed in service only in the case when the court is inclined to accept other evidence and yet feels necessity of seeking for an assurance in support of its conclusion deducible from the said evidence.
S.C. No. 41/3/10 Page75/90St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC In the present case, the statement of the accused Nirmala during the course of investigation lead to recovery of a sum of Rs.50,000/ and gold chian just from the next room which is adjacent to the place of murder. The place of recovery was used for keeping the cattle fodder. The accused Nirmala also got recovered the blood stained clothes which she worn during the time of crime. The pieces of broken bangles found from the place of incident and similar were worn by the accused Nirmala were also compared. The accused Sanjeet and Baljeet have also made disclosure statement in presence of two other police officials namely PW W/Ct. Savita and ASI Suresh have also corroborated the said disclosure statements as made by the accused persons on there own is admissible in law for the commission of the offence.
They defence has not given any suggestion that if those clothes were not of accused Nirmala, then whose blood stained cloths have been recovered. The cash of Rs.50,000/ and gold chain does not denied as not belonging to the the accused persons. It is also evident that at the time of delivery of deceased, PW1 Pushpa Rani arrived in India on 25.06.2008, there was telephonic call and conversation between the deceased and her parents. Under section 25 & 27 of Arms Act, the disclosure of the accused persons lead to the recovery of the weapon of offence and other incriminating material of the crime, statements made by the accused persons are admissible in law and link the chain of circumstances.
S.C. No. 41/3/10 Page76/90St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC Common Intention :
29. The liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 r/w Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. Chinta Pulla Reddy vs. State of A.P., 1993 Supp.(3) 134, Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overact on the part of the accused. The existence of common intention amongst the participants in a crime is essential element for application of Section 34 IPC.
In a case titled as Gupteshwar Nath Vs. State of Bihar AIR 1986 SC 1649: 1986 Cr.LJ 1242 it was observed that " when several persons surrounded the deceased and beat him to death, common intention of all of them for murder can be inferred." . In another case titled Bhola Singh Vs. State of Punjab 1995 CrLJ 1830 (P&H) (DB) it has been observed that " The fact that both the accused came to the spot together and after committing the murder left the S.C. No. 41/3/10 Page77/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC place together would be sufficient to hold that both of them shared the common intention to commit the murder.
Coming to common intention, section 34 of IPC, acts done by several persons in furtherance of common intention. When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
Under section 34 when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The words " in furtherance of the common of all" are a most essential part of section 34 of the Indian Penal Code. It is common intention to commit the crime actually committed. This common intention is anterior in time to the commission of the crime. Common intention means a prearranged plan. In Bengali Mandal @ Bengal Mandal Vs State of Bihar, JT 2010 (1) SC 49, the court observed "t he position with regard to section 34 IPC is crystal clear. The existence of common intention is a question of fact. Since intention is a state of mind, it is therefore, very difficult, if not impossible, to get or procure direct proof of common intention. Therefore courts, in most cases, have to infer the intention from the act(s) or conduct of the accused or other relevant circumstances of the case.
In the present case, the accused Nirmala, Baljeet and Sanjeet have taken a plea of alibi. However, the deposition of DW3 Sikandar S.C. No. 41/3/10 Page78/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC is also contradictory and the conduct of the accused persons as well as other circumstantial evidence and the testimony of eye witness have shown that they have common intention to finish the deceased Anju so that they can solemnize the second marriage of the accused Sanjeet to continue their dynasty.
Under section 498A IPC :
30. In order to succeed in charge under section 498A IPC, the prosecution required to prove that the accused had subjected the deceased to cruelty as defined in the explanation to the section. It is not every cruelty which is punishable under section 498A IPC. The cruelty, as defined in the explanation to 498A IPC, is altogether different from the cruelty, which can be subject matter of proceedings, under the provisions of Hindu Marriage Act. The cruelty, so as to attract penal provisions, contained in section 498A of IPC, has necessarily to be a willful conduct which is of such a nature that it is likely to drive a woman to commit suicide or cause grievous injury or danger to her life or health. The use of the expression ' willful' in the explanation to section 498A of IPC indicates that the conduct attributed to the accused, in order to be culpable, needs to be deliberate, aimed at causing injury to the health of the woman or bringing misery to her. If the accused knows or is reasonable expected to know that his conduct is likely to cause injury to the life, limb or health of the aggrieved woman or if his conduct is of such a nature, that causing injury to the life, limb or health can be a natural consequence for the woman, who is S.C. No. 41/3/10 Page79/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC recipient of such a conduct, it will attract criminal liability on the part of the husband or his relative, as the case may be. Everyone is presumed to intend the natural consequences of his act and such a presumption must necessarily be drawn even if there is no intention to cause any injury of harm to the woman. Whether the conduct in question is likely to drive the woman to cause injury to her life, limb or health, will depend upon a number of factors such as social and economic status of the parties, the level of awareness of the aggrieved woman, her temperament, state of her health, physical as well as mental and how she is likely to perceived such a behavior. If a woman is harassed with a view to coerce her or an of her relatives to meet any unlawful demand for any property or valuable security, it will also constitute cruelty, as defined in the explanation to section 498A IPC. Of course, the expression ' cruelty' would take in its ambit mental cruelty as well as physical torture of the woman is likely to cause a reasonable apprehension in her mind that her living with the husband will be harmful and injurious to her life and safety, such a conduct would attract criminal liability, envisaged in section 498A IPC.
If the woman has harassed on account of her failure or the failure of her relatives to meet an unlawful demand for property or valuable security, that also constitutes cruelty, within the meaning of section 498A IPC. The expression ' harassment' has not been defined in section 498A IPC, but its dictionary meaning is to subject someone to continuous vexatious attacks, questions, demands or other S.C. No. 41/3/10 Page80/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC unpleasantness, etc. But, it is not harassment of every nature which is punishable under section 498A IPC. In order to attract criminal liability, there should be torture physical or mental, by positive acts. Such acts should be aimed at persuading or compelling the woman or her relatives to meet an unlawful demand of any property or valuable security or its should be actuated by the failure of the woman or her relative to meet such a demand.
In the present case, the PW5 Harender has stated that the accused persons have demanded Rs.10 Lakh for a big car. The accused Baljeet had told that " Apni bahan ko hamesha ke liye le jao, hame to Sanjeet ki doosri shaddi karni hai, ye aage hamara vansh nahi chala sakti hai isliye isko le jao nahi to hum maar denge". The PW12 Amit Kumar has also testified by the allegations made by deceased when she was alive PW1 Pushpa Rani stated in her deposition that she had talked to the deceased Anju several times on phone and she made allegations regarding harassment for demand of Rs.10 Lakh and to solemnize second marriage of Sanjeet by the accused persons as she could not beget the child. The accused Sanjeet when gone in London, has also demanded money. The deceased has also informed to PW1 Pushpa Rani on telephone that she was tortured by the accused persons and further testified that her daughter was killed by the accused persons because the deceased was unable to beget a child. PW6 Satyawan also corroborated the deposition of PW1 Pushpa Rani. If there is no complaint or telephonic record of conversation of the deceased with her S.C. No. 41/3/10 Page81/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC parents, it does not mean that there was no mental and physical cruelty to the deceased. It is fact that the deceased' s uterus has been removed and she cannot run the dynasty of the accused persons, the accused persons have adopted the alternative remedy to remarry the accused Sanjeet and pass sarcastic remarks, taunted and maltreated which also tantamount to mental and physical cruelty to the deceased Anju. The conduct of the accused persons to cause physical and mental cruelty on the person of the deceased, shows that they gave more than 20 stab injuries with knife shows their guilty mind. The mode adopted by the accused persons for harassment to the deceased Anju for threatening of remarriage of the accused Sanjeet and stab wound on her is come within the definition of section 498A IPC. The testimony of the close relatives and the prosecution witnesses cannot be discarded only on the ground that they are the close relatives of the deceased.
Ordinarily, offences against married women have been committed within the four walls of matrimonial house and normally direct evidence regarding cruelty or harassment on the woman by her husband or relatives of the husband is not available. Hence, while deciding as to whether a woman was harassed or ill treated by her husband or his relatives, various factors and circumstances can be considered by the court, such as dying declaration of the woman, if any, extra judicial confession by the accused, injuries or burns, if any, on the person of the woman, motive place, time, demand, if any of dowry, physical or mental cruelty shown towards wife, conduct of the husband S.C. No. 41/3/10 Page82/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC and also the conduct of th relatives of the husband etc. In a case titled as Gurbachan Singh AIR 1990 SC 209 it was observed that " In case of dowry death, husband was convicted of the offence under section 498A, on the basis of testimony of PW7, who deposed that the deceased had told her that her husband demanded a scooter and scolded deceased for not bringing a cot as dowry and had also shown her the injuries and complained that the accused husband had inflicted the injuries on her failure to bring the scooter. The conviction was held proper" .
31. No doubt, the initial burden to prove this fact that the deceased was subjected to cruelty is on the prosecution. At this stage, section 113A is not attracted against the accused persons. The accused Nirmala, Baljeet and Sanjeet are living in the same house where the deceased was living and the deceased has been coerced for demand and second marriage of Sanjeet and she was unable to fulfill the desires of the accused persons. The conduct of the accused persons is not natural one and can be considered as relevant under section 8 of the Indian Evidence Act which illustrated that the accused provided evidence which would tend to give to the facts of the case an appearance favourable to himself, or that he destroyed or concealed evidence, or prevented the presence or procured the absence of person who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant.
Plea of Alibi :
S.C. No. 41/3/10 Page83/90St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC The fact alleged by defence are that none of the family members was present in the house at the time of occurrence as having being knowledge that the deceased was alone and cash and jewelery were lying in the house and anything can happen. The accused Nirmala has taken a defence that she has gone to her brother' s house to celebrate Bhaidooj and the other two accused Baljeet and Sanjeet had gone to their office for performing Pooja. The PW10 Poorvi daughter of the deceased was also alleged to be absent from the house on the relevant time, it reflects the irresponsible attitude towards the deceased by the accused persons. The accused persons are well aware that the deceased is alone in the house, then why did they make up the story that Poorvi was gone along with the accused Nirmala. The time of the murder was evening time, all the three accused Nirmala, Baljeet and Sanjeet have not been able to satisfactorily explain their absence from the house. It will also constitute the incriminating circumstances of very culpatory value against the accused Nirmala, Baljeet and Sanjeet. The recovery made pursuant to the disclosure statement of the accused Nirmala, which is sufficient to reach to the conclusion of guilt qua all the accused namely Nirmala, Baljeet and Sanjeet. It is not disputed that the place where the deceased was murdered was her matrimonial house notwithstanding with the fact that there was no one was last seen in or around the house when the deceased was murdered. It is still remain the fact that why she was murdered in her matrimonial house and that there is no cogent, occular, satisfactory evidence that any stranger or S.C. No. 41/3/10 Page84/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC outsider made a forced entry into the house. The lock of the doors of the house was not broken either from main gate or from the backside nor the locks of the almirah were found broken. If the accused persons were not in the house even though, the husband Sanjeet is if so loyal to his wife, must be remained in the house. How and why did he leave his wife alone in the house when he knows that his mother had gone with his daughter Poorvi and his father has gone to work place. It shows the conduct of the accused persons have connivance with each other to commit the murder.
In case titled as Babudas Vs State M.P. 2003 (9) SCC 86:
2003 Cri LJ 2536, where it was held that "a plea of false alibi, though by itself cannot be the sole link or the sole circumstance based on which a conviction can be sustained, but certainly is a link in the chain of circumstances. We may lodge a caveat here. Where the defence of alibi is not proved due to insufficiency of evidence, such an inference need not be drawn. But where it stands established that the defence of alibi is predicated on false evidence, said fact would be relevant as the conduct of the accused to bring on record evidence favourable to him; which evidence is false. Where the accused tries to shield himself by producing false evidence, the very production of false evidence is indicative of a guilty mind, with respect to the application of this principle of law".
The DW3 Sikandar who claimed to be maternal uncle of accused Sanjeet who even did not know the mobile number of Rajesh S.C. No. 41/3/10 Page85/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC and Meena, even not verified the information from Sanjeet and Baljeet, though both have their own mobile phone. The two pairs of chappal of PW10 Poorvi was found at the scene of crime, similar broken pieces of bangles as worn by accused Nirmala, cash, jewelery etc. are intact in the house. No evidence to show that robbery or dacoity has taken place except scatter of goods, which can be done by the accused persons of their own. It is not the case of the defence due to insufficient evidence but it is a case of plea of alibi failed due to false evidence. Conclusion :
32. The section 300 provides five exceptions wherein the culpable homicide would not amount to murder. Under Exception I, an injury resulting into death of the person would not be considered as murder when the offender has lost his selfcontrol due to the grave and sudden provocation. It is also important to mention at this stage that the provision itself makes it clear by the Explanation provided, that what would constitute grave and sudden provocation, which would be enough to prevent the offence from amounting to murder, is a question of fact. Provocation is an external stimulus which can result into to loss of selfcontrol. Such provocation and the resulting reaction need to be measured from the surrounding circumstances. The provocation must be such as will upset not merely a hasty, hot tempered and hypersensitive person but also a person with calm nature and ordinary sense. What is sought by the law by creating the exception is that to take into consideration situations. Wherein a person with normal S.C. No. 41/3/10 Page86/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC behaviour reacting to the given incidence of provocation. Thus, the protection extended by the exception is to the normal person acting normally.
33. In the present case, as per the post mortem report, there are 20 stab injuries on the person of the deceased and all the wounds are on the frontal portion of body and none of the injuries on the back side of the deceased. PW8 Dr. Manoj Dhingra has given opinion and cause of death as " hemorragic shock as a result of multiple stab injuries". He also examined both the knives brought before him by the investigating officer for the purpose of medical opinion and opined that the injuries mentioned in the post mortem report are possible by these weapon and similar such weapon. The testimony of PW8 Dr. Manoj Dhingra is unrebutted. PW9 Naresh Kumar proved the pulandas of the articles seized during the course of investigation. As per the FSL report dt. 26.05.2009 the pieces of broken bangles recovered from the spot and the glass bangles as worn by the accused Nirmala, found to be similar in respect of colour, texture, design, radius, curventure, density. Similarly, with respect to the blood stained earth, earth sample and mosaic pieces are also possessing the similar characteristics. However, with respect to the examination of the chance prints and the fingerprints of the accused persons found to be not identical which is not much relevant as there are occular and trustworthy evidence found against the accused persons. The blood stained clothes worn by the accused Nirmala is found to be of human and same group as deducted from the S.C. No. 41/3/10 Page87/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC blood group of the deceased. Having causing the nature of wounds which shows mens rea or guilty minds of the accused persons while the other party is an undefended woman. The accused Nirmala, Baljeet and Sanjeet have committed the murder of the deceased Anju D/o Satyawan with the intention and knowledge that the bodily injuries which have been inflicted upon her body are sufficient in the ordinary course of nature to cause death. The stab injuries caused to the deceased are fatal in all probabilities, the deceased Anju must have died. The fatal injuries resulted to indicate the intention of the accused persons to cause the death of the deceased Anju. The nature of the weapon of offence as recovered are deadly weapons with which the injuries inflicted on the vital parts of the body by stabbing 20 times on the frontal portion of the body of the deceased as reflected the mens rea to knock her down continue till death. It clearly shows the intention of the assailants to finish the deceased Anju in all probabilities which caused death of the deceased Anju.
Therefore, in view of the aforesaid discussion, facts and circumstances of the case, evidence and material on record clearly shows that the crime was diabolically planned by the accused Nirmala, Baljeet and Sanjeet. The eye witness account and other circumstantial evidence are found to trustful and trustworthy, medical opinion not pointing out any alternative possibilities of robbery or dacoity. The presence of Rajesh and Meena at the place of incident not been corroborative by any other occular evidence. No specific rolehas been S.C. No. 41/3/10 Page88/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC assigned to the accused Meena and Rajesh in gruesome murder of the deceased Anju. In these circumstances, the prosecution has only been able to prove its case beyond all reasonable doubts for the offence under section302/120B/34 IPC against the accused Nirmala, Baljeet and Sanjeet. Hence, the accused Nirmala W/o Baljeet, Baljeet S/o Roop Chand and Sanjeet S/o Baljeet are hereby convicted for the offence punishable under section 302/120B/34 IPC.
Since all the accused namely Nirmala, Baljeet, Sanjeet, Rajesh and Meen had been harassing and torturing the deceased for one reason or the other and also showing intention to solemnize second marriage of the accused Sanjeet. As the deceased Anju' s uterus has been removed and she cannot beget a child and demand of cash for big car tantamount to mental and physical cruelty, as such liable to be convicted under section 498A IPC as such the accused Nirmala W/o Baljeet, Baljeet S/o Roop Chand, Sanjeet S/o Baljeet, Rajesh S/o Dilbagh Singh and Meena W/o Rajesh are convicted for the offence under section 498A/34 IPC.
Dictated & Announced (SATINDER KUMAR GAUTAM) in the open court today ADDITIONAL SESSIONS JUDGE i.e. on 31.01.2011 (WEST02): DELHI S.C. No. 41/3/10 Page89/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC IN THE COURT OF SH. SATINDER KUMAR GAUTAM, ADDITIONAL SESSIONS JUDGE (WEST02), DELHI SC No. 41/3/10 State Versus 1. Nirmala W/o Baljeet Singh R/o Village Bakkarwala, Delhi. 2. Baljeet Singh S/o Roop Chand R/o Village Bakkarwala, Delhi. 3. Sanjit @ Sonu S/o Baljeet Singh R/o Village Bakkarwala, Delhi. 4. Rajesh S/o Dilbagh Singh R/o H. No. 65A, Nangloi Extn. 2B, Delhi. 5. Meena W/o Rajesh R/o H. No. 65A, Nangloi Extn. 2B, Delhi. Case arising out of : FIR No. 642/08 P.S. : Nangloi U/s : 302/498A/120B/34 IPC Order on Sentence Present: Sh. Subhash Chauhan, Ld. APP for state.
Convict Nirmala, Baljeet and Sanjeet from J/C. Convict Rajesh & Meena in person.
Smt. Pushpa Rani, mother of the deceased Anju.
S.C. No. 41/3/10 Page90/90St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC Sh. Ashok Dalal, counsel for the complainant.
Sh. S.C. Bhuttan and Sh. Dinesh Sharma, counsels for all the accused persons/convicts.
The accused Nirmala, Baljeet and Sanjeet have been convicted, vide separate judgment dt. 31.01.2011 for the offence punishable under section 302/498A/120B/34 IPC and accused Rajesh and Meena have been convicted for the offence under section 498A/34 IPC.
Having heard the submissions on the point of sentence and carefully gone through the material placed on record. Ld. Public Prosecutor and counsel for complainant submitted that the prosecution proved its case against the above named accused persons beyond all reasonable doubts. The testimony of prosecution witnesses are trustworthy, corroborative and believable. The deceased Anju was alone in the matrimonial house and the accused Nirmala, Baljeet and Sanjeet hatched a conspiracy with their common intention committed the gruesome murder in a preplanned manner with the ulterior motive. The present crime is one of the gruesome murder committed by the accused persons without any provocation and it needed a deterrent punishment. It is submitted that present case is rare of the rarest case. The convicted persons have committed murder of Anju who was a young lady having her minor daughter who was dependent upon her. The convicted has nipped in bud a blossing human life for fulfilling their evil intentions which resulted to create a malice in the society. The convicted has committed the premeditated cold blooded murder of the deceased Anju S.C. No. 41/3/10 Page91/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC by twenty stab blows on her frontal portion of body. Ld. Public Prosecutor in supports of his argument also relied upon Prajeet Kumar Singh Vs State of Bihar 2008 III AD (Cr.) (S.C.) 41, wherein the Apex Court upheld the capital punishment of an accused holding that the case fell in the category of rare of the rarest cases. There is no rebuttal to the deposition of the prosecution witnesses except to denial of the allegations. There is no specific defence come forward except to simply denied the charges as levelled against the accused persons. Therefore, capital punishment may be awarded to convict Nirmala, Baljeet and Sanjeet.
It is further prayed that the convict Rajesh and Meena are part and parcel of the same family. They are also liable for physical and mental cruelty to the deceased Anju from their acts of harassment and taunting etc. It is prayed that the maximum punishment as prescribed under the law may be awarded to both of them.
Ld. Counsels for the convicted persons while arguing on the point of sentence humbly submitted that the present case does not fall within the ambit of "r arest of the rarest cases" and also relied upon case titled as Bachan Singh Vs State of Punjab AIR 1980 SC 898 and Machi Singh Vs State of Punjab AIR 1983 SC 957. It is further contended that the convicted Nirmala and Baljeet are approximate of 60 years of age and are in judicial custody since 30.10.2008. They have lost their honour, goodwill as well as their beloved daughterinlaw. The convict Sanjeet is hardly 2830 years old and remained in judicial custody for more than 2 ½ years. He is the only son of his parents. All the S.C. No. 41/3/10 Page92/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC accused persons are having clean antecedents and root in the society. The accused Meena is a teacher and having a kid of six months.
It is further submitted that the mandatory sentence of death with no discretion left to the court to have regard to the circumstances which led to the commission of crime is arbitrary, irrational and ultra vires Article 14 and 21 of the Constitution of India. Therefore, minimum sentence as per the provision of law may be awarded to the convicts.
In view of the contentions of Ld. Public Prosecutor and Ld. Counsels for the accused/convicted persons as well as material placed on record and authority cited, the imposition of appropriate punishment is the manner in which the courts respond to the society' s cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime.
In case titled as Mohd. Chaman Vs State 2001 Cri LJ 725, the courts have reduced the sentence of death penalty to rigorous imprisonment of life due to the belief that the accused is not a danger to the society and hence his life need not be taken. The accused in this case had gruesomely raped and murdered a one and half year old child. The lower courts having seen the situation as the "r arest of the rarest cases"
imposed death penalty. This was reversed by the Hon' ble Supreme Court as it was not convinced that the act was sufficiently deserving of capital punishment.
Protection of society and deterring the criminal is the avowed S.C. No. 41/3/10 Page93/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.
It is to be seen whether the case fall within the definition of "r arest of the rarest cases". In veiw of the facts and circumstances of the case and the landmark judgment of Bachan Singh Vs State of Punjab & Machi Singh Case (Supra), the present case does not fall within the category of the "ra rest of the rarest cases".
The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "o rder" should meet the challenges confronting the society. Friedman in his " Law in Changing Society" stated that, " State of criminal law continues to be as it should be decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix.
The following guidelines will have to be applied to the facts of each individual case where the question of imposition of death sentence arises
(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
S.C. No. 41/3/10 Page94/90
St. Vs Nirmala etc.
FIR No. 642/08 & PS: Nangloi
U/s 302/498A/304B/34 IPC
(ii) Before opting for the death penalty the
circumstances of the " offender" also require to be taken into consideration alongwith the circumstances of the "c rime".
(iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercises. In rarest of rare cases when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances:
(1) when the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.
(2) When the murder is committed for a motive which S.C. No. 41/3/10 Page95/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC evinces total depravity and meanness, e.g., murder by hired assassin for money or reward or cold blooded murder for gains of a person visavis whom the murderer is in a dominating position or in a position of trust, or murder is committed in the course for betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste or minority community, etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of " bride burning "
or " dowry death" or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed (5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person visavis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community, as observed in a case titled as Lehna Vs. State of Haryana 2002 SCC (Cri) 526.
No doubt , it is heinous and brutal crime but at the same time it will be difficult to hold that it is rarest of rare case. It is also difficult to hold that convicts are a menace to the society and there is no reason to believe that they cannot be reformed or rehabilitated and that they be likely to continue criminal acts of violence as would constitute a S.C. No. 41/3/10 Page96/90 St. Vs Nirmala etc. FIR No. 642/08 & PS: Nangloi U/s 302/498A/304B/34 IPC continuing threat to the society.
Thus, considering the facts and circumstances convict Nirmala, Baljeet, Sanjeet are sentenced to rigorous imprisonment for life and fine of Rs.10,000/ each in default of three months simple imprisonment for the offence under section 302/120B/34 IPC.
The accused Nirmala, Baljeet, Sanjeet, Rajesh and Meena are sentenced to undergo rigorous imprisonment for a period of six months each and fine of Rs.10,000/ in default of three months simple imprisonment each of the accused/convict for the offence under section 498A/34 IPC.
The period already undergone be set off from the sentenced awarded. The benefit of under section 428 Cr.P.C. be awarded to each of the convict. Both the sentence shall run concurrently.
The mood and temper of the public with regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country.
Copy of this order be given to the convicts free of cost forthwith.
Dictated & Announced (SATINDER KUMAR GAUTAM)
in the open court ADDITIONAL SESSIONS JUDGE
today i.e. on 10.02.2011 (WEST02):DELHI
S.C. No. 41/3/10 Page97/90