Delhi District Court
State vs . Dinesh Kumar on 17 August, 2010
IN THE COURT OF SH. SANJIV JAIN
SPECIAL JUDGE: NDPS: PATIALA HOUSE COURTS, NEW DELHI
Date of Institution:23/03/2010
Judgment reserved on:27/07/2010
Date of pronouncement:17/08/2010
SC No.249/02
ID No. 02403R0247172002
FIR 288/02
P.S. K M Pur
U/s. 302 IPC
State Vs. Dinesh Kumar
S/o Sh. Ganga Prasad,
R/o C281, Pratap Gali,
Nanak Chand Basti,
Kotla Mubarak Pur,Delhi
JUDGMENT
1. After long years of wait, the deceased, Mrs. Amarjeet Kaur, was to be blessed with the best gift which the God could give to her - pleasure of motherhood. But alas ! that was not to be. Before the new life could breathe into this world, it was subjected to worst human cruelty and had to suffer death.
2. This case relates to inhuman homicide of the deceased which also led to the death of the foetus of the child in mother's womb which ofcourse is not homicide so says explanation III to Section 299 IPC. 1
3. The case of the prosecution as it emerges from the record is as under:
On 09.08.2002 on receipt of a call of murder of a lady at house No. 1566, Wazir Nagar, Kotla, SI Dinesh alongwith Ct. Ashok went to the spot where they came to know that a lady was stabbed with a knife and a man had jumped from the roof. By that time, both of them had been removed to AIIMS hospital. He went to the hospital where the doctor declared the lady viz. Smt. Amarjeet Kaur brought dead. Dinesh Kumar was found admitted in injured condition. SI Dinesh recorded the statement of Satnam Singh, husband of the deceased who inter alia alleged:
He has been living with his wife in the house for three years. It was constructed in 1994. As per the family settlement, shop no. 1 & 2 came in his possession.
Shop no. 3 and 4 went to his deceased brother Surjeet Singh and Arjun Singh. At shop no. 1, he runs STD / PCO booth. He had given shop no. 2 to Ganga Prashad Verma on a rent for 6 ½ to 7 years. Ganga Prashad purchased the shop no. 3 from his sisterinlaw about 2 ½ years ago. Since then he has been asking Ganga Prashad to vacate his shop where he has been doing the work of repairs of sofa and curtains with his sons, Dinesh, Ramesh and Umesh. Ganga Prashad did not listen to him and stopped paying rent. On this, on many times, they had heated arguments resulting in strained relations. However he kept on reminding him from time to time 2 to vacate the shop. Dinesh was loud mouth in nature and used to speak angrily to him. He(Dinesh) used to find an occasion to pick up a fight but he avoided. He only spoke to Ganga Prashad with respect to the shop. On having become fed up at the conduct of the accused and his father, about two months ago he got disconnected the electricity of shop no. 2. Thereafter they became inimical to him.
On 03.08.2002 at about 2.30 pm Dinesh came at his STD booth. At that time Balvinder Singh was also present. Dinesh threatened him that he would remember and teach him a lesson for disconnecting the electricity in scorching summer and he would remember it for whole life but he did not take it seriously.
On 09.08.2002 at about 5.30 pm Dinesh came at his booth and started talking to him with respect to the shop. He did not discuss the matter with him (Dinesh) and made him quite by saying that he would talk to Ganga Prashad. Dinesh purchased a Pepsi bottle from his shop. After about 10 minutes, he left the spot. In routine he gave call bell to his wife who lifted a parallel phone. He told her about the visit of Dinesh. On this, his wife told him that Dinesh was sitting with her and talking about the shop. 10 minutes later, he again gave a call bell but his wife did not pick the phone. After 57 minutes, he heard a noise that someone has fallen from the roof. He went there and saw Dinesh in unconscious condition in front of Shop no. 2 on the road. He called his brother Ramesh. A thought came in his mind that Dinesh had been sitting with his wife, he looked up at 3 the window and found it open. Becoming concerned about his wife, he went upstairs. He found his wife in pool of blood on the stair case. The blood was oozing out from her chest, abdomen and shoulder. He also noticed blood on the stairs and lobby. He also saw a broken knife with its blade and handle lying separately. He bolted the house, came down in the bazaar and raised alarm that his wife has been injured by causing stab wounds. On hearing his noise, some people went with him at the first floor, brought his wife down and made her sit on the rear seat of the car brought by Ramesh. Dinesh was already on the front seat of the car. He did not object to taking of his wife in the same car since she was pregnant for five months after 12 years of marriage and he wanted immediate treatment. He sat with his wife on the rear seat and they all went to the casualty AIIMS where doctor declared her dead and admitted Dinesh. He alleged that Dinesh has killed his wife with preplanning.
4. On the statement of Satnam and the MLC, SI Dinesh got registered the case u/s. 302 IPC. Further investigation was conducted by Inspector Ashok Kumar. He prepared the inquest papers, inspected the spot, called the crime team, got the spot photographed vide ExPW11/1 to 17, collected the blood from the staircase/lobby, Hawaii chappal ExP4, a green colour chunni ExP5, and a blood stained towel ExP1. He seized the knife handle ExP3 and the blade ExP2 which were stained with blood. He sealed it with the seal of AKK. From AIIMS, accused Dinesh was referred to Safdarjung Hospital but he fled from 4 there. He arrested him from the Safdarjung Terminal on the identification of Satnam Singh. The accused got recovered his blood stained shoes from the place near Sewa Nagar railway crossing. He got conducted the postmortem of the deceased where the doctor opined the injuries caused by sharp edged weapon which were sufficient in ordinary circumstances to cause death. He got prepared scaled site plan from the draftsman, sent the exhibits to FSL and collected the report. After the investigation, the accused was sent for trial.
5. After complying with the provisions u/s 207 Cr.P.C., this case was committed to the Court of Sessions for trial and was assigned to this Court.
6. After making out prima facie case, charge u/s 302 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
7. To substantiate its allegations, the prosecution examined 15 witnesses in all.
PW1 Satnam Singh is the complainant.
Pw2 Balwinder Singh was present when the accused allegedly threatened Pw1.
PW3 Dr. Shalini Girdhar proved the postmortem report Ex. 5 Pw3/A prepared by Dr. Shyamal Sarkar. As per the report there were 14 injuries on the person of the deceased. Cause of death was hemorrhage shock following the above injuries caused by sharp edged weapon. Injuries no. i, iv, v and viii were sufficient to cause death in ordinary course of nature individually as well as collectively. All the injuries were ante mortem in nature. She admitted that aorta supplies blood to all the body from heart including brain, the injury no. 1 was upto the root of aorta and cutting of aorta may stop supply to the brain but it is not necessary that cut of aorta can cause unconsciousness . There is possibility that a patient can speak and walk after receiving injuries mentioned in the report ExPW3/A. She stated that a man after cut of tendons may hold a cup of tea however it depends on the cut.
PW4 SI Dinesh came on the spot on receipt of information vide DD no. 16A regarding stabbing of a woman and falling of a person from the roof of house no. 1566A Wazir Nagar. He stated that many persons were on the spot from whom he came to know that they have been taken to the hospital by their relatives. He went to the house and st nd found the blood lying on the staircase between 1 and 2 floor. He left Ct. Ashok on the spot and went to the hospital where he met PW1 and recorded his statement ExPW1/A. Pw5 Dr. Sunil Kumar was from the Department of Forensic Medicine AIIMS and had supervised the postmortem. He retrierated the facts as stated by PW3. He stated that the deceased could walk for 6 sometime before getting shock and collapse. If whole of the aerota is not cut, patient may survive for sometime. There was no possibility of sustaining injury due to fall as in the present case. He stated that there are more than 10 tendons on the wrist, so, if all the tendons are not cut, it is possible to hold a cup of tea.
Pw6 Ct. Mahender Singh collected the sealed pulandas from AIIMS which had clothes of the deceased.
Pw7 Ct. Balraj had taken the rukka to the police station and got the case registered.
Pw8 Dr. Jayan MG proved the signature of Dr. Abhishek on the MLC Ex. PW8/A of the accused. He stated that it depends on the circumstances, whether a person would receive head injuries if he falls from a height of 80 feet on a hard cemented surface. He stated that just because GCS of the patient was 15, on that basis, he can say that the patient was perfectly normal. After a free fall, a person can go in lucid interval. It depends on the tendons involved whether he could hold knife if he had cut his tendons of his wrist.
Pw9 SI Madanpal was the draftsman. He prepared the scaled site plan Ex. PW9/A at the instance of PW1. Pw11 Ct. Gir Raj had taken the photographs of the spot vide PW11/1 to 17.
Pw12 SI Sunil Jain went with PW15 in search of the accused to AIIMS but on coming to know that he was referred to Safdarjung Hospital, he went there and found the accused having fled from the 7 Hospital. He took Pw1 with him for his search and arrested him from Safdarjung Bus Terminal at the instance of Pw1. He also went with the accused to Sewa Nagar Railway crossing where the accused got recovered his shoes which were seized vide memo Ex. Pw1/J. Pw13 ASI Khazan Singh was on duty on 100 number PCR head quarters. He stated that at 6.47 pm, he received a call Ex. Pw13/A from Wazir Nagar about falling of a child from the roof of a house. He transmitted the call to the police station through wireless.
Pw14 Dr. L.M. Darlong prepared the MLC of the deceased Ex. PW14/A. He stated that the patient was admitted with the alleged history of stab injuries about 40 minutes earlier. He recorded the time on the MLC as 7:26 p.m. Pw15 Inspector Ashok Kumar was the investigating officer. He stated that on receipt of information ExPW13/A from the PCR at 7:00 p.m. he along with his staff reached the spot, seized the articles, lifted the blood samples and prepared the site plan ExPW15/B. He also interrogated the neighbours. On 10/8/2002 at 10:30/10:45 a.m. when he went to AIIMS where he came to know that the accused was referred to Safdarjung Hospital but he did not find him there. He made his search, went to his house and shop but he was not there. In the evening at about 5:00 p.m. he along with PW1 went for his search and arrested him from Safdarjung Bus Terminal where he made disclosure ExPW1/H and got recovered the shoes. He stated that the photographs ExPW11/9 and 8 12 show the shoe prints. The shoe ExP8 had blood stains however, they are not visible now. Since there was one shoe print leading to the window, only the foot print of the accused was taken. The distance from point 'A' shown in the site plan to the window was 13 to 14 feet which could be covered in 45 steps. He stated that accused was trying to jump from the balcony to the adjoining roof across the gali of about 3 ½ feet in width. Height of the window from the ground level was about 30 feet and the road was cemented. He stated that no constable was deputed in the hospital since the physical condition of the accused was not such that he could run away.
8. The accused was examined u/s. 313 CrPC wherein he controverted the entire evidence and pleaded his innocence. He stated that there was no dispute between him and Pw1 in regard to non payment of rent and electricity. He admitted that on 09.08.2002 he had purchased a bottle of cold drink from Pw1. After taking it, he went to his shop which was in the same premises on an elevated platform of approximately 5 feet. When he was standing on the platform, he was attacked by fits and fell down. He denied having gone to the house of PW1. He stated that his brother had taken him to AIIMS. He never fled from the custody of the police. He was asked to sign on some blank papers. His brother had handed over his shoes to the police which were removed by him when he was being taken to the hospital. He 9 stated that he has been made target in the present case though he has no concern with the murder.
9. In defence, he examined his brother Ramesh Kumar as Dw1 and Dr. Virat as Dw2. Dw1 stated that accused is a patient of schizophrenia since his childhood. On the night of 7/8.8.02, he slit his wrist in an attempt to commit suicide and was taken to AIIMS. On 9.8.02 at about 5/5.15 pm Pw1 telephoned him that his brother has fallen in the gali from a platform, he rushed there and got his brother seated on the back seat of his car. Immediately Pw1 came shouting "mein lut gaya, mein lut gaya". He was smeared in blood. He went to the first floor with Pw1 and saw his wife in pool of blood. He took his wife, Pw1 and the accused to the hospital. They were on the back seat. On the way, he met the PCR Van. One police constable also sat with him on the front seat. His brother was unconscious. He put off his shirt and shoes and handed over to the IO.
10. Dw2 brought the medical record of the accused and stated that he was a known case of right orbital hemangioma and proptosis and under the regular treatment from AIIMS. He had symptoms of protrusion of eye balls from his childhood. He stated that the accused suffering from eye tumour did not have effect on his mental condition. He could perform his normal course with this disease. No treatment was 10 required from psychiatric illness to the accused. There was no complaint of abnormal behaviour by the accused.
11. It is pertinent to mention that Ld Predecessor of this Court vide judgment dt. 29.04.2004 held the accused guilty of the offence punishable u/s. 302 IPC and vide order dt. 30.04.2004 sentenced him to life imprisonment and to pay fine of Rs. 20,000/. Against that judgment / order, the accused preferred an appeal in the Hon'ble High Court. The Hon'ble High Court vide order dt. 19.3.2010 set aside the judgment / order and directed the trial court to reexamine the accused, record his defence witnesses and complete the proceedings. In compliance of the said order of Hon'ble High Court, fresh statement of accused u/s. 313 CrPC was recorded. In defence, the accused examined two witnesses.
12. I have heard the arguments advanced by Ld APP for the State and Ld counsel Sh. Medhanshu Tripathi for the accused.
13. Ld APP submitted that from the evidence on record, it is established that accused was last seen with the deceased. There was an animosity between the accused and PW1 whom he had threatened of dire consequences. He was also injured in that incident which occurred at the same time which conclusively establishes his presence 11 and his involvement in the alleged incident. The injuries were inflicted with knife, which as per the post mortem report, were sufficient to cause death in the ordinary course of nature. Learned APP vehemently argued that the evidence and the circumstances relied upon by the prosecution must be taken as a whole and should not be scrutinized in isolation. He placed reliance on the case of Inder Singh and another Vs. State (Delhi Administration), 1978 Crl L J 766 where Hon'ble Mr. Justice V R Krishna Iyer, speaking for the Court, observed as under: "Credibility of testimony, oral circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases. It is not necessary that it should be perfect. If a case is proved too perfectly, it is argued that it is artificial, if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of foolproof concoction. Why fake up? Because the court asks for manufacture to make truth look true? No, We must be realistic."
12
14. Learned defence counsel per contra, argued that the prosecution has failed to attribute the motive on the part of the accused to kill the deceased. The dispute was between the accused and his whole family on one side and the complainant on the other side. As to why would the accused kill the wife of the complainant, could not be explained. Pw2 is an interested and introduced witness. He had telephone in his house. There is no reason why he would come to the shop of PW1 to make a call and that too after covering a distance of about 1 km. The testimony of Pw1, Pw12 and Pw15 is unworthy of credence in regard to the recovery of shoes. It was allegedly recovered from an open place accessible to people and there is no evidence with the prosecution whether the shoe belonged to the accused. Even otherwise, the FSL report negates the claim of the prosecution that the foot prints taken from the spot were from the shoes allegedly seized. The MLC of the accused does not show any sign of injury on his person. It is impossible that a person jumping from third floor would not receive any injury. The blood on the clothes of accused came when he was being taken with the deceased in the same car on the back seat. The accused being patient of right orbital hemangioma and proptosis had fallen down from the platform and become unconscious. The investigating officer did not seize the shoes of the accused at the time when his clothes were seized. According to the prosecution he was shifted to Safdarjung hospital. It 13 is highly improbable that he would have worn the same shoes and thereafter thrown them at the railway crossing at Sewa Nagar from where they were shown to have been recovered. There are material contradictions in the testimony of the prosecution witnesses as to the time of incident. Learned counsel contended that where there were strained relations, why would Pw1 permit the accused to talk to his wife regarding the shop and keep on sitting in his shop. The incident allegedly occurred at the second floor but no one from the other flat in the same building was made to join investigation. In support of his contentions Ld. counsel placed reliance on the cases Dr.Mahender Singh Dhaiya vs. State (CBI) 2003 (1) JC 218, Harijana Thirupala and others vs. Public Prosecutor,High Court of A.P., Hyderabad (2002) 6 Supreme Court Cases 470, Bhagwan Singh and others vs. State of M.P, AIR 2003 Supreme Court 1088, State of Punjab vs. Sucha Singh AIR 2003 Supreme Court 1471, Khima Vikamshi and Others vs.State of Gujarat (2003) 9 Supreme Court Cases 420, State of U.P. vs. Arun Kumar Gupta AIR 2003 Supreme Court 801, Lalloo and another vs. State of U.P. (2002) 9 Supreme Court Cases 431, Deepak Kumar vs. Ravi Virmani and another (2002) 2 Supreme Court Cases 737.
15. I have considered the rival contentions and perused the record as well as the case law relied on by them. Facts and circumstances show that it is a case of circumstantial evidence as there was no eye 14 witness to the occurrence.
The most fundamental and basic decision on the circumstantial evidence is of Hanumant Vs. State of Madhya Pradesh [AIR 1952 SC 343]. This case has been uniformly followed and applied by the Courts in a large number of later decisions up todate. It may be useful to extract what Hon'ble Mr. Justice Mahajan, has laid down in Hanumant case:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
16. It was held in the case of Dr. Mahender Singh Dahiya (Supra) that where circumstantial evidence consists of a chain of circumstances to link up with one another, the Court has to take cumulative effect of the evidence led by the prosecution before 15 convicting the accused. The Court cannot ignore the direct chain of circumstances and consider them separately or in isolation. The general burden never shifts and it always rests on the prosecution. Motive behind commission of crime is a relevant fact on which evidence can be given. Where the entire prosecution case rests on circumstantial evidence, motive undoubtedly plays an important part in such cases.
17. In the case of State of Punjab Vs Jagir Singh and others AIR 1973 SC 2407 it was observed :
"A criminal trial is not likely a fairy tale where one is free to give rise to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of crime with which he is charged. The crime is an event in real life and is the produce of inter play of different human emotions. In arriving at the conclusion about the guilt of accused charged with the commission of a crime, the court has to judge the evidence by the yard stick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts."
18. In the present case prosecution is heavily relying upon the testimony of PW1 and PW2. It would therefore, be appropriate to have a look upon their testimony before adverting to the rival submissions.
19. PW1 has testified that the father of the accused was his tenant 16 in respect of shop no. 2 for the last 6 years. He had asked him to vacate the shop. There was a tussle between him and the accused because the shop was not being vacated by the tenant. On 03.08.2002 accused threatened him with dire consequences when he visited his shop for having cut their electricity connection exposing them to severe heat. On 09.08.2002 his wife was in his house. He was at the shop. Accused reached there at about 5:00/5:10 p.m. and asked for a cold drink. He gave him the cold drink. Thereafter, the accused went to the residence of PW1 on the second floor where his wife was present. During this time he (PW1) talked to his wife on intercom who told him that the accused was present and talking to her regarding the shop. Thereafter within 10/15 minutes he heard a noise of falling of someone from the direction of his house. He came out of the shop and found the accused lying in the gali. He informed his brother on phone of the incident. When he went to his house, he saw his wife in blood all over her body. He found a knife lying in the room near the body of his wife. He lodged a complaint Ex. PW1/K. Police reached the spot. His wife was taken to the hospital where she was declared brought dead. The accused was also apprehended by the police. Accused was in injured condition. Broken knife was lifted from the spot. Its sketch Ex. PW1/F was prepared. The accused had fled from the hospital and he was apprehended on 10.08.2002. He made disclosure Ex. Pw1/H and got recovered the shoes from Safdarjung Railway crossing. He denied that while sitting in 17 his shop, he could not see the person going to shop 1, 2 and 3. He stated that the accused had received injuries on his person. He gave a call to elder brother of the accused who came and made the accused sit in the car. The accused was unconscious. He was having bandage on his wrist. His wife was lying in the staircase 810 steps below. He bolted the door and came to assist his wife. He took his wife in the same car in which the accused was taken.
20. PW2 in his testimony stated that Dinesh and his father were the tenants of PW1 in respect of shop no. 23. A dispute was going on between the landlord and the tenant over nonpayment of rent and electricity. In the last week of July he had gone to the STD shop of PW1 to make a call and saw some heated arguments between the accused and his brother on the one hand and PW1 on the other hand. Accused and his brother were complaining that PW1 has not done something right in disconnecting electricity in hot season. The accused at the time threatened PW1 that the consequences of his act would not be good. He admitted that he has telephone in his house but all his relatives live outside Delhi. He denied that accused did not extend any threat to PW1.
21. On an analysis of above evidence, I find that the father of the accused was tenant of PW1 in respect of shop No. 2. PW1 wanted him to vacate the tenanted shop. He did not vacate the shop which made 18 their relations stained. PW1 disconnected the electricity of the shop under tenancy of the accused's family. Somedays before the incident, the accused had come at the shop of PW1 and threatened him with dire consequences. PW2 has stated that the accused was saying that PW1 has not done something right in disconnecting the electricity in hot season and threatened that the consequences of that act would not be good.
22. The circumstances show that the electricity continued to be disconnected even during scorching summer which caused sufferings to the accused. He was looking for an opportunity in what manner he could teach PW1 a lesson. Although his medical record shows that he was suffering from right orbital hamangioma and proptosis and was undergoing treatment but there was no impairment of his cognitive faculty. He was capable of forming guilty intent as is evident from the testimony of DW2.
23. Facts and circumstances of this case further show that the accused had come with predetermined mind. He got a cold drink to ensure that PW1 was at the shop and thereafter he went to the house of PW1, discussed the matter of his shop with his wife which fact is evident from the testimony of PW1 who had talked to the deceased on intercom when the accused was with the deceased. Immediately after sometime, 19 there was a sound of a fall in front of the shop in which PW1 was seated. He came out and saw the accused lying in unconscious condition with injuries on his person. PW1 became apprehensive and went to see whether his wife was safe. He called his wife but there was no response to his intercom. When he went there, he was shocked to see his wife lying in pool of blood at the staircase leading to the second floor. He went to his premises to find out what had happened. He bolted the house and came down crying "lut gaya lut gaya" which fact has also come in the testimony of DW1. When he saw the accused being taken in the car by DW1, he also pleaded DW1 to carry his wife in the same car for immediate treatment. PW15 has stated that the window was open and investigation revealed that the accused had tried to jump from the balcony to the adjoining roof across the gali of about 3 ½ feet in width and having failed to do, he fell on the street.
24. MLC of the accused Ex. PW8/A shows that he was brought by his brother DW1. As per the history recorded on the MLC, it was a case of fall from height/jump one hour ago. The accused was complaining pain in the cervical region and had headache. The doctor had advised him pain killer etc. and recommended Xrays of skull and spine. He also seized his blood stain clothes and handed them over to PW6. Had it been a case of fall from a platform of 5 feet high as alleged by DW1, this fact would have come in the MLC ExPW8/A. It was DW1 who had 20 brought the accused to AIIMS and given the Doctor the history. His MLC shows that the accused had internal injuries as he was complaining of severe pain. He was also examined for external injuries. There were stains of blood on his clothes. The complaint Ex.PW1/A negates the plea of the accused that blood had come when he was sitting beside the deceased in the car, as per which accused was on the front seat and PW1 with the deceased was on the back seat of the car. Testimony of PW15 reveals that the accused had fled from the Safdarjung hospital. It leads to an inference that he did not want himself to be examined for internal injuries which could have been used against him. PW8 did not rule out completely the possibility of accused getting internal injuries due to fall from a height of 80 feet on a hard surface. He said that the GCS of the accused was 15 and he was perfectly normal and after free fall, he could go in lucid interval.
25. PW1 has stated in his testimony that he had bolted the door before he went to the hospital. Knife and other articles were seized after the police came. Facts and circumstances show that both the things i.e. fall of the accused on the street and serious injuries on the body of the deceased happened around the same time. There is no evidence that someone else had entered the house or used the staircase or was seen anywhere near the body of the deceased. According to the statement made by the deceased to PW1 immediately before she was killed that it 21 was accused alone who had come to meet her and he was discussing the issue of the shop with her. So it can be conclusively inferred that they were together immediately before the incident. The knife lying there on the spot was stained with blood. Circumstances indicate that the accused did not want to use the staircase lest he be apprehended, he decided to jump from the roof across the gali of about 3 ½ feet and in that process he fell down.
26. DW1 has stated that on the night of 7/8 August, 2002, the accused slit his wrist as an attempt to commit suicide. PW1 and PW2 have stated that before the incident, accused had threatened PW1 of dire consequences. It goes to show that the accused was aggressive and he took the things in himself to teach a lesson to PW1.
27. From the facts above, it is clear that the accused had motive to teach lesson to PW1 for disconnecting the electricity causing sufferings to the family of the accused. The accused decided to target his wife who was in a family way. Although the intention to kill cannot be attributed but it is a clear cut intention of the accused to cause bodily injury to the wife of PW1(Deceased) with whom he had gone to discuss the issue of the shop. It seems that he might have not got a favourable answer as a result of which he got infuriated and caused bodily injuries. PW5 has in his post mortem report ExPW3/A clearly disclosed the 22 injuries i.e. i. Stab wound about 3 X1 cm. on the right anterior chest wall which was horizontally placed 10 cm. from right nipple 5 cm. below tip of the right shoulder and 15 cm. from midline margin clean cut and lateral angle;
ii. Stab wound 2 X 2 cm. on the outer aspect of left chest wall obliquely placed 2 cm. from left nipple 9 cm. from mid line margin clean cut outer angle;
iii. Stab wound 4 X 2 cm. on the left hypochondria region obliquely placed 10 cm. left to mid line. 22 cm. from left nipple margin clean cut lower margin;
iv. Stab wound 4 X 1.5 cm. on the right lower chest wall just above the coastal margin horizontally placed 18 cm. right to midline. 15 cm. below right nipple margin clean cut medial margin;
v. Stab wound 4 X 1.5 cm. vertically placed 4 cm. below the injury no. 4 17 cm. right to midline. Margin clean cut outer angle;
vi. Stab wound 3.5X1.5 on the lower and outer part of abdominal wall 8 cm. to the right from the midline and 13 cm. obliquely from umbilicus. Margin clean cut and medial margin; vii.Stab wound 3X2 cm. on the right lumper region 28 cm. from the umbilicus 14 cm. obliquely from injury no. 5 obliquely placed margin clean cut viii. Stab wound 9 X 4.3 cm. on the left inguinal region 28 cm. from left knee 21 cm from umbilicus. margin clean cut upper margin;
ix.Incise wound 3 X1 cm. muscle deep on the left forearm just below elbow joint on the skull side obliquely place and margin clean cut;
x. Superficial incised wound 3 X 0.5 cm. on the outer aspect of 23 the left forearm 5 cm. above the wrist joint;
xi.Superficial incise wound 7X1 cm. on the outer aspect of right forearm 5 cm. above the wrist joint;
xii. Incise superficial would 2 X 0.5 cm. on the right forearm 2 cm. above injury no. 11;
xiii. Penetrating wound 3 X 2 cm. on the upper part of the right gluten region on the back side and communicating to the injury no. 7 cm. from injury no. 7 and 15 cm. from midline on the back side;
xiv. Incise wound on the scalp 'c" shape on the left side occipital region 7X5 cm. muscle deep clean cut margin. injury sustained to the foetus. Incised wound 3X0.5 cm. around the both angle joint on the anterior aspect. Injury to the uterus stab wound on the left outer aspect of middle of the foetus size 3X1.5 cm. which entered uterine cavity and injured the foetus etc. Further he has stated that the injuries i, iv, v and viii individually and collectively were sufficient to cause death in ordinary course of nature.
28. The accused has received injuries almost at the same time and the same place. His MLC also records history of fall about one hour ago. They were taken simultaneously in the same car. Though his MLC does not record the time of his examination but it can be presumed that same was simultaneous to that of the deceased. Thus it is established that deceased and the accused were together and they sustained injuries simultaneously which in the present case is taken as one of the 24 circumstance in the chain of circumstances. The second circumstance is that the accused had come at the shop of PW1. After taking cold drink he left the shop. Shortly thereafter he spoke to his wife on intercom who told him that accused was sitting with her. After 1015 minutes he heard the noise of somebody falling from his house. He came out and saw the accused lying in gali. It also goes to show that on 09.08.2002 shortly before the accused fell and sustained injuries, he was with the deceased in the room. It is also proved that the deceased had sustained injuries during the period of 1520 minutes between the time when PW1 spoke to her on intercom and the time when he heard the sound and saw the accused lying in the street. There is no evidence that during this time some other person had gone to the house of the deceased or caused injury to her. The inescapable conclusion is that the accused caused injuries to her which resulted in her death. Third circumstances is that the relations of the accused with the husband of the deceased were strained since PW1 recently had disconnected electricity in scorching summer which infuriated the accused.
29. In this case, the evidence on record establishes a complete chain of events connecting the accused directly to the crime right from the stage of motive leading to the formation of intent and the acts perpetrated on the body of the deceased and presence of weapon used and his fleeing from the place of crime after commission of the offence 25 by attempting to jump from one house to the other house but unfortunately for him, instead of success he failed and fell down on the ground.
30. This brings us to the requirement of section 300 (3) IPC which, if attracted, makes the acts of the accused case of culpable homicide amounting to murder u/s 302 IPC. The ingredients of Clause Thirdly of S. 300 of the Code were brought out clearly by Hon'ble Mr. Justice Vivian Bose. in Virsa Singh v. State of Punjab, 1958 SCR 1495 at P. 1503 as under:
"To put it shortly the prosecution must prove the following facts before it can bring a case under S. 300. "3rdly."
Firstly, it must establish, quite objectively, that a bodily injury is present Secondly, the nature of the injury must be proved. These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury, of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender." The Hon'ble Judge has further discussed section 300 (3) thus: 26
''The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not or if the totality of the circumstances justify such an inference, then, ofcourse the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it. The only possible inference is that he intended to inflict It. Whether he knew of its seriousness or intended serious consequences is neither here nor there. The question, so far as the intention is concerned is not whether he intended to kill or to inflict an injury of a particular degree of seriousness but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence of the circumstances warrant an opposite conclusion.'' These observations of Hon'ble Mr. Justice Vivian Bose have become locus classicus as has been observed by the Hon'ble Supreme Court in Jagrup Singh vs. State of Haryana AIR 1981 SC 1552 in para 7. The test laid down in Virsa Singh's case (supra) for the applicability of Clause thirdly are now ingrained in our legal system and has become part of the rule of law.
31. It will however, to point out that investigation in this case could have been conducted in better manner. Some infirmities can be pointed out which investigators might take note of, though these do not affect the merits of the case in hand. Perusal of the evidence and the documents 27 reveals that the prosecution did not take opinion from Forensic Expert whether the injuries were caused from the knife ExP2, ExP3, nor tried to know the blood group appearing on the clothes and the shoes of the accused, the shoe prints from the floor were not taken, the shoes were not seized from AIIMS where the clothes of the accused were seized and the neighbourers of the deceased were not examined. It is true that the investigating agency committed irregularity in omitting to send these exhibits for examination and to collect these evidence to lend corroboration but this itself does not cast doubt on the prosecution case to make it untrustworthy and unworthy of belief. There is enough material available with the prosecution to prove the guilt of the accused. The Hon'ble Supreme Court in Gunnana Pentays @ Petadu & Ors. Vs. State of AP AIR SCW 6132 observed as hereunder: Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, his conclusion can be maintained. It is the duty of the Court to separate grain from chaff. Where chaff can be separated from grain it would be open to the Court to convict an accused not withstanding the fact that evidence has to be found deficient or to be not wholly credible. Falsely of material particular would not ruin it from the beginning to the end. The maxim "falsity of material particular would not ruin it from the beginning to the end. The maxim "falsus in uno falsus is omnibus"
has not received general acceptance in Indian not has this maxim come to occupy the status of law. It is merely a rule of caution.........28
32. In Karnel Singh Vs. State of M.P. AIR 1995 SC 2472 (1) Hon'ble Mr. Justice A M Ahmadi, CJI, while upholding the conviction of the accused observed :
"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; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective."
33. In the present case, the knife found at the spot was stained in blood. There were stab injuries on the body of the deceased. The accused had sustained internal injuries. The report ExPW9/G shows the blood on his clothes and shoes. Facts and circumstances go to show that injuries were caused with the knife ExP2.
34. As regards contentions that PW1 is the husband of the deceased and PW2 is the friend of PW1 and thus interested witnesses, it is relevant to note that both the witnesses were subjected to detailed cross examination but I find their testimony intrinsically worth of being believed as true. On material aspects, no contradictions came in their cross examination to doubt their veracity. Merely because PW1 is the husband of the deceased, his evidence cannot perse be discarded. It is well settled law that when there is 29 allegation of interestedness, the same has to be established. Mere statement of being related to the deceased and therefore, he is likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. As regards presence of PW2, some days before the incident, he had come at the shop of PW1 to make a telephone call from his STD booth as his relatives live outside Delhi. There is nothing on record that PW2 had animus with the accused or was interested in his false implication.
35. In the case of State of UP Vs. Kishanpal & Ors. 2008 AIR SCW 6322, Hon'ble Mr. Justice P. Sathasivam observed : "Related" is not equivalent to "interested". A witness may be called "interested" only when he or she derives some benefit from the result of a litigation, in the decree in a civil case, or in seeing an accused person punished. A witness who is one and is the only possible eye witness in the circumstances of a case cannot be said to be "interested"
36. Although some contradictions have come as to from where, the accused got recovered his shoes, where PW1 saw the deceased for the first time, time of incident, as per the FSL report ExPW15/H, no shoe impression could be observed on the sofa seat but the photographs show the shoe impression on the floor, but on careful scrutiny of the evidence in the facts and circumstances of the case, 30 these contradictions do not make the case of the prosecution fatal. Even otherwise the prosecution case is not solely rested on the recovery of shoes. There are other circumstantial evidence which conclusively point the guilt of the accused. As per PCR record ExPW3/A, the information was received that a boy has fallen from the roof of house near mother dairy. The message was transmitted at 6:45 p.m. The PCR reached the spot at 6:58 p.m. On the spot as reported in ExPW13/A, it was found that a boy has stabbed a lady and jumped from the roof. Both of them were injured and were taken to AIIMS in a maruti zen. Both were unconscious. On the spot, the knife, chunni, chappals, towel were found which were stained in blood. There were blood spots on the clothes of the accused. PW1 has stated that he had found the deceased at the stairs which fact he confirmed in his cross examination. It was held in the case of Siddiqua Vs. NCB 137 (2007) DLT 500 that a small contradiction here and there about the timings could not make the testimonies of the witnesses doubtful. Minor discrepancies are very natural to occur. The court has to consider the entire evidence as has been adduced before it and then come to the conclusion. Minute details of incidents with the passage of time go out of memory. It is not as if a video tape is replayed on the mental screen. Sometimes the witness cannot anticipate the occurrence which so often has an element of surprise. In regard to exact time on an incident, or the time duration of an occurrence usually, people make their estimate by guess work on the spur of moment at the 31 time of interrogation. One cannot expect people to make very precise or reliable estimate. It depends on the time sense of the individual which varies from person to person.
37. It was argued that the accused before the incident had tendons on his wrist and with that injury, the stabbing on the person of the deceased could not be made as recorded in the post mortem ExPW3/A. I do not find any substance in this argument. PW3, PW5 and PW8 were extensively cross examined and they have stated that a man after cut of tendons and if all tendons are not cut, could hold a cup of tea. As regards contentions that if somebody stabs with a broken knife he would receive injury on his palm and finger, Ld. counsel has not noticed that the handle was also recovered from the same spot. It is not the case that the injuries have been caused by holding the blade alone. It is a case where the accused in a most callous manner kept on stabbing on the victim till he broke the knife and could stab no further and thereafter in a state of desperation or bravado, he jumped from the window and sustained injuries on his person. As regards defence that the accused had fallen from a height of 5 feet, the history on the MLC of the accused itself negates it, since, it was the accused brother who had brought the accused to AIIMS and given the history to the doctor.
38. For the reasons stated above I am of the considered opinion 32 that it was the accused who attacked the deceased by giving her number of stab injuries which led to her death. The injuries on the body of the deceased were intended bodily injuries when examined were sufficient individually and collectively to cause her death. I thus, hold the accused guilty of the offence of murder u/s 300 (3) IPC punishable u/s 302 IPC and convict him thereunder.
Announced in open Court on this 17 day of August, 2010 th Sanjiv Jain Special Judge NDPS : New Delhi Patiala House : New Delhi 33 IN THE COURT OF SH. SANJIV JAIN : SPECIAL JUDGE NDPS PATIALA HOUSE COURTS, NEW DELHI SC No.249/02 ID No. 02403R0247172002 FIR 288/02 P.S. K M Pur U/s. 302 IPC State Vs. Dinesh Kumar ORDER ON SENTENCE
1. Vide separate judgment accused Dinesh Kumar has been convicted of the offence punishable u/s 302 IPC.
2. I have heard Ld APP for the State and Ld counsel Sh.
Medhanshu Tripathi for the convict on the point of sentence.
3. Ld counsel submitted that the present case does not fall under the category of 'rarest of the rare' case calling for capital punishment. The convict is a young man aged about 33 years, unmarried and is a patient of right orbital hemangioma and proptosis. He does not have past criminal record and belongs to a respectable family.
4. Ld APP on the contrary submitted that the convict does not 34 deserve any leniency rather deserves the highest sentence for this gruesome murder.
5. I have considered the submissions.
6. In the case of Anshad Vs. State of Karnataka (1994) 4 SCC 381 it was held that death sentence is to be awarded in the rarest of the rare cases. Certain guidelines have been laid down where the question of imposition of death sentence arises. Death sentence may 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 nature and circumstances of the crime and all the relevant circumstances. 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 mitigating circumstances before the option is exercised. Brutality in taking away the life of the victim is only one of the factors which is required to be taken into consideration for coming to the conclusion that the case in hand is one of the rarest of the rare ones.
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7. The convict is a young man and unmarried. He does not have any criminal antecedents. He is a patient of right orbital hemangioma and proptosis since childhood. Though there were multiple stab injuries on the person of deceased, but still, the case would not come under the category of rarest of rare case warranting death sentence.
8. Keeping in view all the facts and circumstances of the case, age and antecedents of the convict, I sentence Dinesh Kumar to undergo rigorous imprisonment for life and to pay fine of Rs. 20,000/ in default thereof to undergo simple imprisonment for a period of six months. He shall have the benefit of Section 428 CrPC.
9. The case property be confiscated to the state after the expiry of period of appeal/revision.
File be consigned to Record Room.
Announced in open Court th on this 25 day of August, 2010 Sanjiv Jain Special Judge NDPS : New Delhi Patiala House : New Delhi 36