Delhi District Court
Fir No. 340/2009 Ps Vasant Vihar State vs Pushpam Kumar 31.07.2023 Pg No. 1 Of 72 on 31 July, 2023
IN THE COURT OF MS. VRINDA KUMARI
ADDITIONAL SESSIONS JUDGE-02, SOUTH
DISTRICT, SAKET COURTS, NEW DELHI
CNR NO. DLST01-000136-2010
IN THE MATTER OF
SESSIONS CASE NO. 6885 OF 2016
FIR NO. 340/2009
POLICE STATION : VASANT VIHAR
UNDER SECTION : 302/201 IPC
State
Versus
Pushpam Kumar
S/o Sh. Bijoy Kumar Sinha,
R/o Vijay Shree Complex,
Kankad Bagh Patna-800020. ......Accused
DATE OF INSTITUTION : 23.01.2010
DATE OF COMMITTAL : 10.02.2010
DATE OF RESERVING ORDER : 22.07.2023
DATE OF PRONOUNCEMENT : 31.07.2023
JUDGMENT
1. The case of the prosecution is that on 24.10.2009 between 01:30 PM to 06:00 PM at A-80, 2 nd Floor, Munirka Village, New Delhi, accused caused death of Ms. Ram Chanphy by strangulating her and after causing her death, accused burnt her face and body on the gas stove in order to cause disappearance of the evidence with the intention to save himself from the legal FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 1 of 72 punishment.
2. After conclusion of investigation, the charge-sheet was filed against the accused before Ld. MM concerned on 23.01.2010. Cognizance was taken. Vide Order dated 03.02.2010, Ld. MM (South) committed the matter to Sessions Court. Case was received in the Sessions Court on 10.02.2010.
CHARGE
3. Charge for the offences punishable u/s 302/201 IPC was framed on 29.07.2010 against accused Pushpam Kumar. Accused pleaded not guilty and claimed trial.
Admission/denial of documents u/s 294 Cr.P.C.
4. Admission/denial of documents u/s 294 Cr.P.C. was conducted on 05.03.2019 during which accused admitted the inquest papers of deceased comprising of application of autopsy brief facts, OPD reference card bearing no. 4512/09 and the death report of the deceased (Ex. P-X1 (Colly-4 pages). Accused also admitted MLC dated 25.10.2009 (Ex. P-X2) of the deceased prepared in Safdarjung Hospital. In light of the admission of above-said documents and in view of the FSL Report (Ex. P1), postmortem report (Ex. PX1), laptop (Ex. A1), hard disc (Ex. A2), data retrieved (Ex. A3), technical report (Ex. A4) and CD containing this date and report (Ex. A5) having already been exhibited, at request of prosecution, FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 2 of 72 examination of following witnesses was dispensed with :
(i) Dr. Jiju P. V., Senior Scientific Officer;
(ii) Doctor from Burns Department who had prepared MLC of the deceased;
(iii) Dr. Sumit Telliwar who had prepared post-mortem report (Ex. PX-1).
PROSECUTION EVIDENCE
5. Prosecution examined twenty-six (26) witnesses in its favour.
6. PW1 is W/Ct. Sangeeta who proved the computerized PCR Form as Ex. PW1/A.
7. PW2 Timila Hongray is the sister of Ramchanphy (deceased). She deposed that earlier she was living at House No. A- 80, Second Floor, Munirka, New Delhi. In the month of September, 2009, her sister Ramchanphy came to her house and started living with her. On 24.10.2009, she went out for her work to Cannaught Place at about 01:30 PM. At that time, accused Pushpam was in his room and his room was adjoining her room. In the evening at about 06:00 PM to 06:30 PM, she got a call from her brother Yaokhalek Hongray who works in Vasant Kunj that their sister Ramchanphy was lying dead in the kitchen. Her brother used to come to her house on weekends. PW2 asked her brother as to who else was there in the FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 3 of 72 flat and he informed PW2 that accused Pushpam was there. She left her work and went home and she also informed her friends and relatives. She was very shocked and was out of her mind when she was reached home. One of her relatives called up the police. Police came to the spot. PW2 further deposed that her sister Ramchanphy used to tell her that accused Pushpam used to stare at her while she was cooking and also at times passed comments on her. Before 24.10.2009 on Friday, her sister had told her that somebody was knocking at the door and that she was scared of Pushpam. PW2 further deposed that on 24.10.2009, she signed complainant (Ex. PW2/A) written by Florence Awungshi. At that time, she was in a very shocked and upset state of mind. On 24.10.2009, when the police arrived at the spot, police took photographs of the spot. The dead body was taken by the police to hospital. PW2 further deposed that when she went to the hospital to see her deceased sister, she guessed on seeing her sister that it was not a natural death as she was having some burns on the upper chest part and back. She suspected accused Pushpam's role in the death of her sister because of past incidents and his conduct. PW2 lodged the complainant on 25.10.2009 (Ex. PW2/B). Police caught accused Pushpam present in the Court from his room. In the evening, they went to police station and in her presence and of her brother Yaokhalek, Florence and the police, accused Pushpam confessed that he had killed her sister Ramchanphy.
8. PW2 Timila Hongray further deposed that on FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 4 of 72 24.10.2009, when she was going on her duty at about 01:30 PM leaving her sister in the room, accused Pushpam was standing in front of his room. In the evening, the police took the photographs and did other proceedings and, thereafter, removed the dead body to the hospital. In the hospital, she identified the dead body of her sister before the postmortem and the police recorded her dead body identification statement (Ex.PW2/C). PW2 further deposed that on 25.10.2009, she along with her brother Yaokhalek Hongray and her relative Florence Awrungshi went to the police station where the IO was interrogating the accused Pushpam. During the course of interrogation, the accused Pushpam confessed his guilt. IO recorded the disclosure statement (Ex. PW2/D) of accused Pushpam. IO arrested accused Pushpam Kumar vide arrest memo (Ex. PW2/E) and conducted his personal search vide personal search memo (Ex. PW2/F). Thereafter, in pursuance to the disclosure statement made by the accused, the accused pointed out the place of occurrence i.e. kitchen located on the second floor of House No. A-80, Munirka, New Delhi vide pointing out memo (Ex. PW2/G) and told that he had strangulated the deceased and thereafter, he put the upper portion of her body on the burner. Thereafter, accused Pushpam led the police team to his room and produced a urolite bag. On checking the bag, it contained one skirt, one lady top, two bangles, greeting card, one mala, one monogram etc. and told that he had purchased the same for gifting to the deceased Ram Champhy. IO seized the said articles vide seizure memo (Ex. PW2/H). Thereafter, the police conducted search in the room of the accused in which, one diary FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 5 of 72 containing messages in Hindi and English showing that the accused was in frustration and one Laptop were recovered. IO seized the same vide seizure memo (Ex. PW2/J). Thereafter, the accused took out one jeans pant with belt and one shirt lying on the mattress in his room and gave the same to the police and said that he was wearing the same clothes at the time of committing the murder. IO seized the same vide seizure memo (Ex. PW2/K). PW2 further deposed that on 16.01.2010, she gave statement before the Magistrate. She proved her statement u/s 164 Cr.PC consisting of five pages as Ex. PW2/L. The witness correctly identified the accused in the Court. The witness has also correctly identified the case properties i.e. the blue and red colour urolite bag contains three ladies tops (Ex.P1 collectively), one skirt (Ex. P2), one greeting card (Ex. P3), two bangles (Ex. P4 collectively), one sky colour mala (Ex. P5), one monogram (Ex. P6), one sunglass kept in the box (Ex.P7), diary (Ex. P8), photographs (Ex. P9 and Ex. P10), one laptop (Ex. P11), jeans (Ex. P12) and shirt (Ex. P13).
9. PW3 is Dr. Raja Mitra who deposed that on 27.10.2009 he examined one Pushpam Sinha regarding his mental state of affairs. PW3 was informed by the police that said Pushpam Sinha was accused of committing murder of a North-Eastern girl. He took a counselling session of Pushpam Sinha and after counselling, he prepared his report (Ex. PW3/A).
10. PW4 is SI Avdesh Kumar, Fingerprint Expert. He FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 6 of 72 examined the chance-prints and specimen fingerprints. The chance print Q1 was identical with the right index finger impression marked SI on the finger impression slip of Pushpam. Chance-print mark Q2 was partial and smudged and did not disclose sufficient number of ridge in their relative positions for comparison. He proved his detailed report as Ex. PW4/A. PW4 also proved the photographs of enlarged specimen fingerprint S1 and chance-print Q1 as Ex. PW4/B and description of the analysis of fingerprints as Ex. PW4/C.
11. PW5 is Ct. Ajay Kumar who deposed that on 25.10.2009, Duty Officer gave him the copy of the present FIR to deliver the same to Illaka Magistrate, Joint C.P. and the DCP and he delivered the same at the residence of DCP, Joint CP and also at the residence of the Illaka Magistrate at Koshambi, Ghaziabad.
12. PW6 Sh. Yaokhalek Hongray is the brother of deceased Ram Chanphy and PW2 Timila Hongray. He deposed regarding the circumstances in which he found the dead body of his sister, his initial impression of cause of death followed by suspecting the accused. He also proved his statement recorded after the post- mortem of deceased as Ex. PW6/A and his initial complaint to the police as Ex. PW6/B. He also proved his statement u/s 164 Cr.P.C. recorded by Ld. MM (also exhibited as Ex. PW6/A). He also proved the recoveries made in his presence in the present case during investigation. He participated in the investigation and proved the documents signed by him.
FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 7 of 72
13. PW7 is Sh. Darshan Singh who deposed that on 27.10.2009, he handed over documents pertaining to tenancy verification form of accused Pushpam Kumar i.e. his form for information of tenant (Ex. P1), photocopy of his identity card (Mark X) to the IO. He also handed over verification form of tenancy of decease's sister, namely, Timila Hongary i.e. photocopy of information form (Mark B) and photocopy of driving licence issued in her name (Mark C) to the IO. IO seized these documents vide seizure memo (Ex. PW7/A).
14. PW8 is SI Surjit Singh who deposed that on 24.10.2009, he was on emergency duty from 8:00 PM to 8:00 AM with Ct. Gulwinder Singh. On that night, at about 9:02 PM, he received DD No. 58-B (Ex. PW8/A) pertaining to death of a girl due to gas leakage. They both reached there and found that a girl was lying dead on the floor in a rented room due to burns on her chest and neck. At that time, she was lying at the main entrance of the kitchen and her face was towards the side of roof. The head of the deceased was towards the side of kitchen and the legs were outside the main door of the kitchen. He called the Crime Team as well as the photographer at the spot. He also informed his senior officials. Crime Team inspected the place of incident and spot was also got photographed. In-Charge, Crime Team also collected two chance- prints from gas stove. PW8 lifted some burnt hairs and seized the same vide seizure memo (Ex. PW8/B). PW8 further deposed that he FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 8 of 72 also seized one burnt red colour piece of cloth vide seizure memo (Ex. PW8/C). Some ash was also seized from the place of incident vide seizure memo (Ex. PW8/D). He also seized 3/4 long hairs from the back side of gas stove which were lying on the shelf of the kitchen vide seizure memo (Ex. PW8/E). One aluminium utensil (pateela) having oil was also seized vide Seizure Memo Ex. PW8/F. He also seized gas cylinder with gas stove of make Laxmi Company, one pipe, one gas regulator and one lighter vide seizure memo Ex. PW8/G. At the spot, sister of deceased and her brother also reached there and they revealed the name of the deceased as Ramchanphy of Manipur. No eyewitness met him at the spot. He and Ct. Gulwinder Singh shifted the dead body to Mortuary of Safdarjung Hospital where it was got preserved. Timila Hongray (sister of deceased) presented a written complaint in the PS on 25.10.2009. PW8 made an endorsement (Ex. PW8/H) on it. After post-mortem, dead body of deceased was handed over to the sister as well brother of deceased. PW8 recorded their identification statements in this regard (Ex. PW2/C and Ex. PW6/A).
15. PW8 further deposed that he also seized six exhibits which were handed over by the doctor in the hospital and were duly sealed with the seal of the 'Department of Forensic Medicine SJH' vide seizure memo (Ex. PW8/I). PW8 further deposed that on 07.12.2009, he was called at the place of incident by IO/Inspector Pawan Kumar. At the instance of PW8, Draughtsman/SI Mahesh prepared a rough site plan. PW8 correctly identified case properties FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 9 of 72 i.e. gas stove alongwith plastic and rubber pipe (Ex. P14) collectively, gas cylinder alongwith gas regulator (Ex. P15), one aluminum utensil (pateela) (Ex. P16), some oil /ghee seized from the pateela from the kitchen (Ex. P17), a bunch of black hairs described as burnt hairs of deceased (Ex. P18), few strands of black hairs seized from the kitchen (Ex. P19), red colour semi-burnt clothes (Ex. P20) and some burnt black material stated to be black residual material (Ex. P21).
16. PW9 is Ct. Vipin Kumar who deposed that on 25.10.2009, he joined investigation with SI Yogender, IO/Inspector Pawan Kumar. During interrogation by the IO from accused Pushpam, sister of deceased namely Timila Hongray, her brother Yaokhalek Hongray and her relative Flourance came in the PS. After deep interrogation, accused Pushpam confessed his guilt and IO recorded his disclosure statement (Ex. PW2/D). The accused was arrested vide arrest memo (Ex. PW2/E) and his personal search was conducted vide personal search memo (Ex. PW2/F). Thereafter, accused led them to the place of incident i.e. kitchen of second floor of House No. A-80, Munirka Village, New Delhi and IO prepared pointing out memo of occurrence (Ex. PW2/G). Accused got recovered some gift items which he had kept in a traveller bag of red and blue colour, which he had purchased for deceased Ram Champhy Hongray. These gift items include three ladies tops, one shirt, one skirt, one goggle (sunglasses) one bracelet, one greeting card, two bangles, one sky colour artificial pearl mala and one FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 10 of 72 monogram. IO seized these items vide seizure memo (Ex. PW2/H). During search of accused house, IO also seized one diary of red and black colour of year 2009 and one laptop of Compaq. IO seized the same vide seizure memo (Ex. PW2/J). Accused also handed over his cloths which he had worn at the time of incident i.e. one shirt of pink, white and orange checkdar, one blue colour jeans pant having belt with it. IO seized these articles vide seizure memo (Ex. PW2/K). The witness correctly identified the accused in the Court.
17. PW9 further deposed that on 27.10.2009, on calling, landlord of house no. A-80, Munirka Village, New Delhi appeared in the police station and handed over the documents pertaining to tenancy of the deceased sister namely Timila Hongray and accused Pushpam. IO seized these documents (Mark B), (Mark C) (Ex. P1) and (Mark X). The same were seized vide seizure memo (Ex. PW7/A). On the same day, IO called Dr. Rajat Mitra from Swanchetan Society for Mental Health and he also examined the accused separately and as per his report, accused was found mentally sound. PW9 further deposed that on 30.10.2009, he was called by the IO at IIT Delhi, Hauz Khas, New Delhi. There, Sh. Shashi Mathur, Dean of Students handed over complaints of first and second years' students which were lodged by them against the accused Pushpam. IO seized the complaint as well as other documents handed over by the Dean of Students vide seizure memo (Ex. PW9/A). The photocopy of the said complaint which is attested by the Dean of Students namely Sh. Shashi Mathur (Mark A), FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 11 of 72 attested photocopy of order regarding constitution of Enquiry Committee (Mark B), attested photocopy of the minutes/enquiry of the Committee (Mark C) and attested photocopy of application for PHD by Pushpam (Mark D). All these documents were submitted by the Dean of Students through his letter. The witness has also correctly identified the case properties i.e. the blue and red colour urolite bag contains three ladies tops (Ex.P1 collectively), one skirt (Ex. P2), one greeting card (Ex. P3), two bangles (Ex. P4 collectively), one sky colour mala (Ex. P5), one monogram (Ex. P6), one sunglass kept in the box (Ex.P7), diary (Ex. P8), photographs (Ex. P9 and Ex. P10), one laptop (Ex. P11), jeans (Ex. P12) and shirt (Ex. P13).
18. PW10 is Sh. Pawan Singh who proved the Customer Application Form of mobile number 9990741961 for prepaid connection as Ex. PW10/A, copy of identity card as Mark A, CDRs as Ex. PW10/B1 to Ex. PW10/B11 and certificate u/s 65B of the Indian Evidence Act as Ex. PW10/C.
19. PW11 is Ct. Hari Ram who deposed that on 08.01.2010, at the instance of the IO, he obtained exhibits of the present case vide three RCs bearing numbers 3/21/10 (FSL No. 2010/D-0059), 4/21/10 (FSL No. 2010/B-0083) and 5/21/10 (FSL No. 2010/C-0080) from MHC(M) and the same were deposited at FSL Rohini. Inspector Pawan Kumar also reached at FSL Rohini as there was some mistake on the papers, so after correcting the same, FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 12 of 72 the said exhibits were deposited and he returned back the photocopy of receipts of exhibits to MHC(M).
20. PW12 is SI Mahesh Kumar who deposed that on 07.12.2009, he along with IO/Inspector Pawan Kumar visited the place of incident and he took rough notes and measurement. He proved the scaled site place as Ex. PW12/A.
21. PW13 Dr. G. A. Sunil Kumar Sharma deposed that on 25.10.2009, he alongwith Dr. Sumit Tellewar, Sr. Resident conducted post-mortem examination on the dead body of deceased Ramchamphy Hongray, 19 years female D/o Rameyo Hongray who was allegedly found lying in her kitchen and brought dead to Safdarjung Hospital on the midnight of 24/25.10.2009. PW13 deposed as follows :
General Observations:
Dead body of a young adult female having an average built. No clotting present over the body. Eyes closed. Tongue caught between teeth. Deep burns present on the back of the neck between the two shoulders at the back and occipital scalp. Superficial to deep burns present on the back of both upper arms. Muscular plains of the back of the shoulders and the back of the neck are exposed and charred, charring also present over the occipital region of the scalp. No erythema or any vital reaction present at the edges of the burns.
Rigor-mortis were developed all over the body, cornea FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 13 of 72 hazy. Postmortem staining at the back and the fix. Few petichial spot present in the conjunctiva of right eye. No sign of the decomposition present over the body.
External ante-mortem Injury (1) Reddish abrasion 0.5 cm x 0.1 cm cresentic in shape vertically placed just above the mid of left eyebrow.
(2) Reddish abrasion 0.3 cm x 0.1 cm cresentic in shape vertically placed parallel to injury no, 1 and 0.2 cm medial to it.
(3) Reddish abrasion 2cms x 1.2 cms on left temple. (4) Reddish abrasion having partly partchmentized appearance measuring 2.2 cms x 1 cm present in the right side upper neck just below the ramus of the mandible and 1.8 cms medial to right angle of mandible.
Internal Examination:
Brain- heat haematoma present on the occipital region hardening of the brain matter at occipital and cerebellar region due to prolonged burning.
Neck-The skin of the back and side of the neck completely charred. The muscles of the back of the neck are charred and that of anterior neck and soft tissues of anterior neck are harden due to prolonged burning. Slight bruising was present on the left side of the neck along the carotid sheath. Tracheal wall congested and does not contain any sooth particles.
Lungs: Oedematous and congested. Heart: Few petechial spots present at the apex.
FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 14 of 72 Stomach: contained about 30 CC of mucoid material with some blakish flakes.
Liver, Spleen and Kidneys - Congested. Perineum and Genitals - No injury was present. Cause of Death - Was kept pending until the chemical analysis report of the viscera made available from FSL.
Time since Death - About 18 hours. Following items were sealed and handed over to 10 for examination:
(1) Viscera (2) Scalp hairs (for analysis of inflammable substances) (3) Perivaginal swab levelled as (A) (4) Vaginal swab levelled as Al.
He proved the detailed postmortem report No. 2012/09 as EX.PW-13/A. PW13 further deposed that FSL report No. 2010/C- 0080 dated 03.12.2010 mentioned non-detection of common poison in the viscera and presence of residue petrol on scalp hairs found on EX.-2 of parcel-2. Parcel no.1 and parcel no. 2 were sealed with the seals of Department of Forensic Medicine VMMC SJH SKS. PW13 deposed that after considering the detailed post-mortem report and the FSL report, it was his considered opinion that the cause of death in this case was throttling (compression of the neck by the hands). The burns mentioned in the PM report were post-mortem in nature.
22. PW14 is Sh. Ajay Bhatia who deposed that on 14.01.2010 at around 03:00 PM to 03:30 PM, Inspector Pawan FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 15 of 72 Kumar came in Central Jail No. 04 and produced a copy of the Order of Ld. MM for collecting blood sample of accused Pushpam Kumar. The blood sample of accused was taken in cotton gauze and EDTA VIAL. These two samples were seized vide seizure memo (Ex. PW14/A).
23. PW15 is Ct. Gulvinder who deposed that on 24.10.2009, DO handed over a call to ASI Surjit Singh regarding death of a girl by burning at A-80 near Canara Bank, Munirka, New Delhi vide DD No. 58B at 09:02 PM. He along with ASI Surjit Singh went to the spot where they found a dead body of a girl on the floor of the kitchen whose feet were towards outside the kitchen and her head was inside the kitchen. Fingerprint Team was called at the spot. There was a gas stove a small LPG cylinder and a lighter (Ex. PW8/G Colly.) inside the kitchen. A few strands of hair (Ex. PW8/F) and a small red colour burnt cloth (Ex. PW8/C) were lying near the gas stove. Some burnt pieces of ash-like things (Ex. PW8/E) were also lying on the floor. A utensil (pateela) (Ex. PW8/F) was also lying in the kitchen. The dead body was shifted to Burns Ward of Safdarjung Hospital and in this regard, an MLC bearing no. 4512/09 was prepared and doctor declared her brought dead and, thereafter, dead body was shifted to Mortuary of Safdarjung Hospital. PW15 further deposed that on 25.10.2009, post-mortem of the deceased was got conducted and after post-mortem, exhibits including viscera peti and IO seized the same vide seizure memo (Ex. PW8/J).
FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 16 of 72
24. PW16 is Sh. Israr Babu, Alternate Nodal Officer, Vodafone Mobile Services Ltd. He proved the certified copy of Customer Application Form of mobile phone number 9582147596 in the name of H. Timila as Ex. PW16/A, certified copy of Customer Declaration Form as Ex. PW16/B, certified copy of ID proof of the customer i.e. DL as Ex. PW16/C, certified copies of CDR of mobile phone number 9582147596 for the period from 20.10.2009 to 30.10.2009 as Ex. PW16/D (Colly.) and certificate u/s 65B (4)(C) of the Evidence Act issued by Nodal Officer Anuj Bhatia as Ex. PW16/E. PW16 also proved the Customer Application Form (CAF) of mobile phone number 9811205643 in the name of C. Ruthi as Ex. PW16/F, Customer Declaration Form as Ex. PW16/G, certified copy of the ID proof of the customer i.e. DL as Ex. PW16/H, certified copies of CDR of mobile phone number 9811205643 for the period from 20.10.2009 to 30.10.2009 as Ex. PW16/I (Colly.), certificate u/s 65B (4)(C) of the Evidence Act issued by Nodal Officer Anuj Bhatia as Ex. PW16/J and Cell ID Charge (Tower Location) of Vodafone, Delhi and NCR as Ex. PW16/K (Colly.).
25. PW17 is HC Harsahai who deposed that on 24.10.2009 at about 09:02 PM, he received a wireless message from Lady Constable Sangeeta regarding death of one girl at A-80, near Canara Bank, Munirka, New Delhi due to burn. He recorded the said message as DD No. 58B. The said entry was already Ex. PW8/A.
26. PW18 is Retired SI Puran Singh who deposed that on FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 17 of 72 25.10.2009 at about 01:55 AM, he received telephonic message from Duty Ct. Virender from Safdarjung Hospital regarding death of one girl, namely, Ramchonpy Hongray D/o Romya who was brought in burnt condition vide MLC No. 04268/09 and was admitted by ASI Surjit Singh. She was declared brought dead by the doctor after checkup. He recorded the said message as DD No. 8A in the relevant register. PW18 proved the said entry as Ex. PW18/A.
27. PW19 is SI Yogender who deposed that on 25.10.2009, he joined the investigation of the present case with Ct. Vipin and IO/Inspector Pawan Kumar. On that day, the accused Pushpam present made a disclosure statement in the presence of Timila Hongray, Yaokhalek Hongray and Florence and accepted that he had murdered Ramchanphy. At that time, the accused was arrested by the IO vide arrest memo already (Ex. PW2/E), his personal search was also conducted vide personal search memo (Ex. PW2/F). In his presence, accused had also made voluntary disclosure statement in detail, in which, while accepting his guilt, he had also disclosed the details of the crime. The said statement (Ex. PW2/D) was recorded by the IO/Inspector Pawan Kumar. The accused took them to A-80, Second Floor, Munirka, New Delhi, where, he pointed out the kitchen and different places/things therein. IO prepared pointing out memo (Ex. PW2/G). The accused also produced from his rented room one Urolite bag of blue shade containing three ladies tops, one skirt, one greeting card, one monogram, one skyblue colour's necklace, two bangles and also one sunglasses which was in a plastic FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 18 of 72 box. He also stated that these articles were purchased by him for the deceased as gift. These articles were seized vide seizure memo (Ex. PW2/H). IO had also searched the room of the accused, wherein one diary (red and black colour) of 2009 was found. In the diary, some writings were found on some papers showing mindset of the accused. One laptop was also found in the same room. The laptop and the diary were seized vide seizure memo (Ex. PW2/J) . The accused also produced from the mattress (gadda) of his rented room one blue colour jeans (with 'Elements' tag) one belt was also attached with the said jeans, one shirt (white, pink and orange coloured check) which was having tag of 'Arrow'. While producing them, the accused had stated that he was wearing those clothes while murdering the deceased. Both the clothes were seized by the IO vide seizure memo (Ex.PW2/K). IO had also got photographed some portions of the wall wherein some objectionable (abusive) language was written. PW19 correctly identified the case property i.e. one blue colour jeans with 'Element' tag as well as belt (Ex. P12) and a shirt with 'Arrow' tag (Ex. P13), 'Compaq' make laptop (Ex. P11), one table diary of red and black colour having attached two handwriting samples (Ex. P8) and two coloured photographs (Ex. P9) and (Ex. P10), one ladies tops (Ex. P1 Colly.), one skirt (Ex. P2), one greeting (Ex. P3), two bangles (bracelet) (Ex. P4 Colly.), one sunglasses (Ex. P7), one pearl necklace (Ex. P5) and one monogram (Ex. P6).
28. PW20 ASI Dharambir Singh proved the copy of FIR as FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 19 of 72 Ex. PW20/A, endorsement on tehrir as Ex. PW20/B, entry in Register (Rojnaamcha-A) as DD No. 37A as Ex. PW20/C and DD No. 40A pertaining to handing over of FIR and original tehrir to Inspector Pawan Kumar as well as sending a copy of FIR to Ld. MM, Joint CP and DCP as Ex. PW20/D.
29. PW21 is SI Jitender Kumar who deposed that on 24.10.2009, he along with HC Raj Kumar (Proficient) and Ct. Girdhar (Photographer) visited scene of crime. In the kitchen, a dead body of a female was lying in burnt condition. The dead body was photographed. The proficient lifted two fingerprints from the gas stove. Some hair strands were also found on the gas stove. He proved the report as Ex. PW21/A and lifting of two chance prints lifted from Laxmi Gas Stove vide memo Ex. PW21/B.
30. Since Fingerprint Proficient HC Raj Kumar expired before his testimony could be recorded, PW21 was recalled to prove the report Ex. PW21/B of the Fingerprint Proficient. He identified the signatures and handwriting of HC Raj Kumar on Ex. PW21/B.
31. PW22 is Sh. Shashi Mathur, Professor, Department of Civil Engineering, IIT Delhi who deposed that on 30.10.2009, IO inquired from him about accused Pushpam. He told the IO that inquiry was already pending against Pushpam regarding his inappropriate behaviour against girl students. Pushpam was earlier registered as Ph.D student in the Department of Applied Mechanics, FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 20 of 72 I.I.T. Delhi and he was Teaching Assistant for under graduate courses in I.I.T. He handed over the IO a copy of complaint dated 18.09.2009 received from the girl students of Civil Engineering Department, 2nd year. He proved the attested copy of the same as Ex. PW22/A, attested copy of notice dated 07.10.2009 as Ex. PW22/B, minutes of the inquiry committee meeting held on 21.10.2009 as Ex. PW22/C, attested copy of the Application Form for admission to Ph.D programme of accused Pushpam as Ex. PW22/D, letter dated 30.10.2009 as Ex. PW22/E. The inquiry report which was mentioned in the letter is Ex. PW22/C. IO prepared one seizure memo (Ex. PW9/A) with regard to the above documents. During this inquiry, accused Pushpam was supposed to appear on 26.10.2009 but Pushpam did not attend that meeting as he had been arrested on 25.10.2009.
32. PW23 is Ms. Veena Rani, the then Ld. Addl. Senior Civil Judge-cum-Guardian Court. She proved the application for recording of statements of witnesses Timila Hongray D/o Ramya Hongray, Yaokhalek Hongray S/o Ramya Hongray and Ms. Florence Awungshi as Ex.PW23/A. She recorded the statement u/s 164 Cr.P.C. (Ex. PW2/L) of Timila Hongray D/o Ramya Hongray. She proved the statement of Ms. Florence Awungshi as Ex. PW23/B, the application of the IO seeking supply of the statement u/s 164 Cr.P.C. as Ex.PW23/C. PW23 further deposed that on 18.01.2010, another witness Yaokhalek Hongray S/o Ramya Hongray was produced by the IO. She recorded the statement of Yaokhalek Hongray S/o FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 21 of 72 Ramya Hongray u/s 164 Cr.P.C. (Ex. PW6/AA). She proved the application of the IO seeking supply of the statements u/s 164 of the Cr.P.C made by witnesses as Ex.PW23/D.
33. PW24 is HC Giriraj who deposed that on 24.10.2009, ASI Surjeet Singh deposited case property sealed with the seal of 'SS" in case D.D. No. 58B, dated 24.10.2009 through six seizure memos. He proved the entries in this regard at serial No. 1390 in the Register No. 19. Ex. PW24/A (colly). He further deposed that on 25.10.2009, ASI Surjeet Singh deposited case property in the malkhana sealed with the seal of 'Department of Forensic Medicines, S.J.H.' from Safdarjung Hospital in case DD No. 58B dated 24.10.2009 vide seizure memo. He proved the entry in this regard in the Register No. 19 at serial no. 1396 as Ex. PW24/B. He also proved the entries in Register No. 19 at serial no. 1397 as Ex. PW24/C, entries regarding depositing of personal search items of accused as Ex. PW24/C. PW24 further deposed that on 08.01.2010, he sent one sealed parcel, specimen handwriting of accused Pushpam and one sample seal of 'PK' vide RC No.3/21/10 to the Director, FSL, Rohini through Ct. Hari Ram and proved the copy of the same as Ex. PW24/D. He proved RC No.4/21/10 (Ex. PW24/E) vide which three sealed parcels were sent to the Director, FSL, Rohini through Ct. Hari Ram as Ex. PW24/E. On the same day, he also sent one sealed viscera peti of deceased Miss Ramchampy, five sealed parcels, one sample seal of Forensic Medicines, S.J.H. New Delhi' and one sample seal of 'SS' vide RC No.5/21/10 to the FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 22 of 72 Director, FSL, Rohini through Ct. Hari Ram and he proved the copy of the same as Ex. PW24/F. He further deposed that on 14.01.2010, he handed over one sealed parcel and one sample seal of 'PK' to Inspector Pawan Kumar vide RC No. 6/21/10 (Ex. PW24/G) to be sent to the Director, FSL, Rohini. On 15.01.2010, he again handed over two sealed parcels and one sample seal of 'PK' to Inspector Pawan Kumar to be sent to the Director, FSL, Rohini, vide RC No. 7/21/10 (Ex. PW24/H).
34. PW25 is Ct. Girdhar Singh who deposed that on 24.10.2009 he alongwith Mobile Crime Team In-charge SI Jitendra Kumar and HC Raj Kumar (Finger Printer Proficient) reached at the spot i.e. A-80, Second Floor, Munirka Village, New Delhi. He took the photographs of the spot at the instance of Crime Team In-charge as well as IO, from different angles. He proved the six photographs of the spot as Ex. PW25/A1 to A6 and six negatives as Ex. PW25/B.
35. PW26 Inspector Pawan Kumar is the Investigating Officer. He proved the investigation conducted by him. PW26 also proved application for taking PC Remand of accused as Ex. PW26/A, site plan as Ex. PW26/C. He collected PCR Form (Ex. PW1/A) and proved the photocopy of his request as Mark PW26/D. He also proved application seeking permission to deposit blood sample of accused Pushpam Kumar in malkhana as Ex. PW26/D, application dated 07.01.2010 to Director Fingerprint Bureau, Malviya Nagar, New Delhi as Ex. PW26/E and memorandum of the FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 23 of 72 report of Fingerprint Expert received on 20.01.2010 as Ex. PW26/F.
36. PW27 is Sh. Jitendra Kumar, Senior Scientific Officer (Chemistry), FSL, Rohini. He deposed that on 08.01.2010, four parcels were received from PS Vasant Vihar with regard to FIR No. 340/2009 u/s 302/201 IPC through Ct. Hari Ram No. 3298/SD. The parcel No. 1 was sealed with the seal of 'DEPTT. OF FORENSIC MEDICINE VMMC SJH SKS' containing viscera of Ms. Ramchanphy Hongrey which was found to contain exhibits 1A, 1B & 1C. Parcel No. 2 was sealed with the seal of 'DEPTT. OF FORENSIC MEDICINE VMMC SJH SKS' containing exhibit 2 i.e. scalp hair. Parcel No. 3 was sealed with the seal of 'SS' and was containing exhibit 3 i.e,, some burnt black material stated to be black residual material. Parcel containing No. 5 was sealed with the seal of 'SS' and was having exhibit 5 i.e., some pieces of red colour semi burnt clothes. After desealing the parcels, he conducted examination and on chemical, TLC & GC examination, it was found that (1) metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides could not be detected in exhibits 1A, 1B, 1C & 1D and (ii) exhibits 2, 3 & 5 were found to contain residue of petrol. He proved his detailed report as Ex.PW27/A. STATEMENT OF ACCUSED U/S 313 Cr.P.C.
37. Statement of Accused Pushpam Kumar u/s 313 Cr.P.C.
FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 24 of 72 was recorded on 26.03.2019. Accused stated that he was innocent and had been falsely implicated in this case. He never committed any crime. Additional statement of accused u/s 313 Cr.P.C., in light of recording of further testimony of PW21 SI Jitender Kumar u/s 311 Cr.P.C., was recorded on 31.01.2023. The incriminating circumstance of lifting of two chance-prints one of which matched the accused and report (Ex. PW21/B) were put to th accused. Accused stated that his fingerprints were taken by the IO at police station on 26.10.2009 at 11:00 AM by police after beating him.
38. I have heard detailed final arguments on behalf of the accused persons and State. I have perused the record carefully including the written submissions of the accused and prosecutiong as also the case laws relied upon by them.
DISCUSSION Place of Incident
39. Case of prosecution is that the deceased Ramchanphy Hongray came to live with her sister Timila Hongray (PW2) in September 2009, i.e. about a month prior to the date of incident in the room on second floor at House number A-80, Munirka Village, New Delhi. Accused Pushpam Kumar also resided on the same floor in the room adjoining the room of PW2 and on 24.10.2009 between 6:00 pm to 6:30 PM, the dead body of the deceased was found on FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 25 of 72 the same floor in the separate kitchen. Contention of Ld. Counsel for the accused is that as per the case of prosecution, the incident took place in the room on the second floor of House no. A-80 whereas the landlord PW7 Sh. Darshan Singh has stated in his cross examination that the accused and the complainant (mentioned as informant in the cross examination) were living on the first floor. Here it would not be out of place to mention that the cross-examination of PW7 was recorded on 01.11.2014 i.e. about five years after the date of incident. Nevertheless his testimony does prove that PW2 and accused Pushpam lived on the same floor. The description of other two tenants on the second floor given by PW2 and PW7 also matches. PW7 stated in his cross examination that one of the tenants was a man from force but he could not recall the other tenant. PW2 deposed in her cross examination as follows:
" The tenanted premises were one room and one separate kitchen. There were four rooms on my floor, including premises in my possession. The other two tenants at my floor were residing there prior to me ... On my floor , besides me and accused Pushmpam there were two other tenants , out of which one was family from Manipur comprising of mother and her daughter . On the day of the incident , the said family was out to attend a function . The forth tenant was a family comprising of an army man , his wife and children."
40. The entire investigation discloses that the PW2 and FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 26 of 72 accused lived as tenants on the second floor of house number A-80 in adjoining rooms and the dead body of the deceased was found in the separate kitchen on the same floor. At this stage , I would refer to the Statement of Accused u/s 313 Cr.P.C. wherein following question was put to the accused :
"Q2. It is in evidence of PW2 Tamila Hongry, sister of the deceased Ramchanphy, that on 24.10.2009 at about 1.30 PM, she went to Connaught Place and at that time, you Pushpam Kumar were in the adjoining room. What you have to say?
Ans I was seriously ill and I was resting in my room."
While answering the abovesaid circumstance, accused did not dispute that he he did not reside in the room adjoining the room of PW2 at the time of incident. It is not the defense of the accused anywhere that he did not reside in the rented room on the second floor at A-80, Munirka village, New Delhi.
41. No doubt, application form (Ex PW16/A) vide which PW2 had obtained mobile connection bearing number 9582147596 in her name for her deceased sister on 18.10.2009 i.e. six (06) days prior to the incident mentions her address as A-62, Munirka, however, in light of the statement of PW7 (landlord), there is no doubt in the mind of the Court that PW2 resided as tenant at A-80, FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 27 of 72 Munirka Village, New Delhi. In the cross examination of PW7, accused has not even put a suggestion that the said room at A-80 was not rented out to PW2. The cross examination of PW7 further confirms that PW2 and the accused lived on the same floor. During his cross-examination by Ld. Counsel for accused, a question was put to PW7 that incident had taken place at A-62, Munirka and not at A-80. The witness deposed that the incident occurred at A-80, Munirka , New Delhi and not at A-62 , Munirka , New Delhi.
42. The prosecution has successfully proved that PW2 Timila Hongray and the accused Pushpam Kumar lived as tenants in the adjoining rooms on the second floor at the house no. A-80, Munirka Village and the dead body of Ramchanphy Hongray, the 19 year old younger sister of PW2 was found in the separate kitchen on the second floor itself.
Site Plan
43. Rough site plan (Ex PW26/C) prepared by the IO Inspector Pavan Kumar (PW26) on 28.10.2009 and scaled site plan (Ex PW12/A) prepared by Draughtsman Crime Branch SI Mahesh Kumar (PW12) show that there are four rooms on the second floor of house no. A-80. There is a common passage running between the second floor from North to South. Two rooms are towards the west side of the passage with PW2 Timila's room in the north and accused Pushpam Kumar's room in the south. There are two FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 28 of 72 washrooms between their rooms. The other two rooms are on the east side of the passage. One of those rooms is towards the north side and the other one is towards the south side.There is a kitchen between those two rooms on the east side where the dead body of the deceased was found. There are two more kitchens between the room of the accused and the room opposite to him on the East side. In the middle of the passage, there is a small space which is open to the sky.
44. The scaled site plan shows that PW12 visited the spot on 07.12.2009 and prepared the scaled site plan on 17.12.2009.
45. There is no challenge to the rough site plan prepared by the PW26. The only question put to him during the cross examination was regarding the place where he prepared the site plan. PW26 deposed that he had prepared the site plan on the spot. During the cross examination of PW12 , a suggestion was put to him that the site plan Ex PW12/A was incorrect and did not depict the scene of crime correctly. PW12 denied the suggestion. It has not been explained by the defense how the scaled site plan did not depict the scene of crime correctly and what was the actual scenario according to the accused. The prosecution has, thus, proved that the rough site plans Ex. PW26/C and scaled site plan (Ex. PW12/A) are the correct site plans of the scene of crime.
46. The site plans show that the separate kitchen in which FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 29 of 72 incident in question had taken place was easily accessible to the accused. It is nobody's case that the kitchens on the second floor were common kitchens or that the accused also used the said kitchen where dead body was found.
How PW2 and PW6 came to Know of the Incident
47. Having explained the site plan, I will now consider how PW2 and PW6 came to know of the incident.
48. Examination-in-chief dated 09.12.2010 of PW6 Yaokhalek Hongray, brother of the deceased would show that on 24.10.2009 at around 06:30 PM, he went to his sister Timila Hongray's house at A-80, Second Floor, Munirka Village, Delhi. He went to the room and kept his bag there after which he went to the kitchen. In the kitchen, he saw dead body of his sister Ramchanphy Hongray, who had come to live there about a month ago, lying in the kitchen. He saw accused Pushpam in the corridor of the same floor. The corridor was common for his sister's room and room of accused Pushpam. At that time, accused was listening to music. Some smoke was coming out of the kitchen. When PW6 inquired from the accused about the incident, accused told him that he knew nothing and that he was listening to music. PW6 telephoned his sister Timila from PCO. Timila Hongray rang up some of her friends who reached the spot after some time. Accused, meanwhile, went inside his room and closed his door. Police was informed and police reached the FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 30 of 72 spot. Timila Hongray also returned home from her workplace. PW6 has also deposed that he used to visit his sister Timila's house on weekends. In his cross-examination, he has explained that 24.10.2009 was a Saturday.
49. In her testimony dated 02.11.2010, PW2 Timila Hongray also deposed that on 24.10.2009, when she was at her workplace at Connaught Place, she received a call from her brother Yaokhalek Hongray that their sister Ramchanphy Hongray was lying dead in kitchen. She asked her brother as to who else was present there in the flat upon which she was informed that accused Pushpam was present there. PW2 left her workplace and reached home and informed her friends and relatives. She was in a shocked state of mind when she reached home. One of the her relatives called the police. PW2 recalled that her sister Ramchanphy used to tell her that accused Pushpam used to stare at her while she was cooking and had also passed comments upon her at times. Prior to 24.10.2009, on Friday, her sister (deceased) had also told her that somebody had knocked at the door and that she was scared of accused. She has also deposed that at the time when she had signed her complaint Ex. PW2/A on 24.10.2009, she was in a shocked state.
50. These witnesses withstood the test of cross examination well on this aspect. PW6 deposed during cross examination recorded on 23.12.2014 after more than five years of the incident that since the body of his sister was in burnt condition, he concluded that she FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 31 of 72 was dead. He did not touch her body. Thereafter, he gave a call to her sister Timila on her mobile phone number 9811205643. He admitted that this phone number was in the name of one C. Ruthi and Timila was using that phone. He further deposed that Timila asked him to call ambulance and their friends. However, he did not call anyone. PW2 Timila reached there about an hour later and a friend of hers called police. He also deposed in his cross examination that when he reached the room of his sister, he only saw the accused in the building and did not see any other resident of the building or person there. He also deposed that when he reached the house of her sister and entered in the kitchen, there was smoke as well as smell of gas in the kitchen.
51. Cross-examination of PW2 was conducted on 22.12.2014 after more than five years of incident. She deposed that she had received call of her brother on her mobile phone number 9811205643 between 4pm to 6pm . She reached her house between 7:00 pm to 8:00 pm but she did not remember the exact time. She also explained that the abovesaid phone number belonged to her friend C. Ruthi and she had been using the said phone for past one year prior to the date of incident and that now C Ruthi had returned to Manipur. She also explained that when she reached the spot, she saw her sister lying on the floor of the kitchen. She saw only her legs and as it was painful, she could not muster courage to see her face. Her testimony relives the trauma faced by her at the time of death of her sister.
FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 32 of 72
52. The discrepancy in exact time of call made by PW6 to PW2 and inability of PW6 in mentioning time of the several proceedings which were part of investigation are natural and attributable to the long time passed between recording of examination in chief and the detailed cross examination . There is , however, no material contradiction or material improvement in their testimonies. The behaviour of the witnesses in the face of such trauma as disclosed in their testimonies is natural. Circumstances in which they found out about the incident has been well proved by the prosecution.
Initial Impression and How It Changed
53. Delhi Police Control Room Form I (Ex. PW1/A) shows a call was made by one Yaron So on 24.10.2009 at 20:50:31 hrs that a 19 years old girl had died because of gas leak at Munirka, 80-A near Canara Bank. Ex. PW8/A is the DD No. 58B dated 24.10.2009 PS Vasant Vihar, New Delhi vide which the information that one girl had died because of gas leak at Munirka, A-80, near Canara Bank, Vasant Vihar was forwarded to PS Vasant Vihar.
54. Ex. PW2/B is the written complaint dated 24.10.2009 of PW2 and Ex. PW6/B is the written complaint dated 24.10.2009 of PW6. In these complaints, PW2 and PW6 mentioned that they did not suspect anyone at the moment and they also did not suspect any FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 33 of 72 foul play. These complaints show that they were written by one Florence Aurenghi at the instance of PW2 and PW6.
55. Complaint dated 25.10.2009 (Ex. PW2/A) would show that initially PW2 Timila Hongray and her brother Yaokhalek Hongray had stated to the police that they did not suspect anyone. In this complaint, PW2 has explained that at that time she and her brother were not in such a state of mind so as to express suspicion on anyone because of the unexpected death of their sister. It is further mentioned in the complaint that at the Burns Casualty, Safdarjung Hospital, when she went to remove the clothes of her deceased sister, she noticed that her sister had such burns which did not look severe enough to have caused her death.
56. In her examination in chief, PW2 has deposed that when she went to hospital to see her sister, she could guess that it was not a natural death as she was having some burns on the upper chest and parts of neck.
57. Out-Patient's Reference Card of the deceased (Ex. P- X1 Colly), which is an admitted document, shows that the dead body of the deceased was brought to Safdarjang hospital at midnight of the intervening night of 24/25.10.2009. It mentions as follows:
"Tongue of patient
protruding b/w teeth.
L/E - (1) Burns involving
lower face, neck with
FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 34 of 72
mummification of burns around
neck. 30% TBSA with
involvement of back, head
(2) Full thickness burns
involving post aspect of neck &
back.
(3) Nose bleed (+)
(4) L thumbnail burnt.
Advice - (1) In view of
death in suspicious
circumstances it cannot be
wholly attributed to burns only
(2) Police information
sent
(3) Refd to Mortuary /
main casualty for further
evaluation regarding cause of
death."
This document further shows that at the time when deceased was examined, Timila (PW2), one Sabastian Hongrei (cousin), one Leiyaza and ASI Surjit Singh (PW8) were present there.
58. PW2/complainant then wrote another complaint Ex PW2/A on 25.10.2009 in which she disclosed her suspicion over accused Pushpam. Her complaint Ex PW2/A addressed to SHO PS Vasant Vihar reads as follows:
" Dear Sir, I am residing at house # A 80, 2nd floor, Munirka village since last 5 months as a tenant.
Yesterday evening, the dead body of my sister Ms Ramchanphy Hongray age, 19 years was recently come for a FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 35 of 72 visit to Delhi 1 month back, was found. I left my house around 1:30 PM on 24th October, 2009 for Cannaught Place to attend my job.
At around 6:30 PM my younger brother visited the house and found her dead body burnt and lying in the kitchen. He immediately called me and subsequently, we informed our friends and relatives before informing police.
My brother and I were in shock to find my sister dead so unexpectedly. We called the police which is in record after the period. When we gave our statement to the police, we were not in a state of mind to suspect anyone. We would like to inform and bring to your attention that our next door neighbour on the same floor Mr Pushpam had in the recent past harassed and intimidated my sister. This was told to me by my sister, Ramchanphy Hongray . At the Burns Casualty, Safdarjung Hospital when I had gone to remove her clothes, I notice that she had burns that did not look severe enough to have caused her death.
We suspect Mr Pushpam's role in the death of my sister because of the past incidents and his conduct.
It is also informed that at the time of the discovery of the body of my deceased sister by my brother, Mr Pushpam was the only person present on the floor of the building. You are requested to probe the role of Mr FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 36 of 72 Pushpam and also investigate the cause of death of my sister.
Yours faithfully, TIMILA HONGRAY"
59. Now I shall consider the statement u/s 164 Cr.P.C. (Ex. PW2/ L) dated 16.01.2010 of PW2 Timila Hongray which reads as follows:
"Ramchanphy was my sister, she came to Delhi September 2009. On October Saturday 24, I left my room at 1:30 PM for my work. There was no one on the floor except my sister and Pushpam. After around 6:00 PM my brother Yaokhalek called me that my sister is lying in the kitchen and that I have to come quickly. I asked him what happened then he said your sister is lying in in the kitchen and I further asked who is on the floor then he said Pushpam is on the corridor and he is listening the music. I called up all my friends, my friends, elders. I came home and I don't want to see the body lying in the kitchen. Around 9 o'clock we called up the police and police came and they took photographs and they took gas cylinder. Police took my sister body to hospital. My sister body was half burned and she was lying straight.
On 25th morning they took her body to postmortem, everybody was asking what FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 37 of 72 happened. After postmortem, the doctor called my brother and me and ask that we have any enmity or enemy for it is not a natural death. I think that my sister told me on Friday or Saturday that she is scared of Pushpam because he came when she was cooking and Pushpam gave suggestion that your food is tasty. She also told that on Friday evening that somebody was continuously knocking at the door and she is really scared of Pushpam.
In the hospital, I told to the police official Mr Surjeet that one person Pushpam was harassing my sister and she was scared of him. In the evening police caught Pushpam and a in the police station Pushpam himself confessed before me, my brother, elder and police persons that how he kill my sister that wo kitchen mein kuchh khaanaa bana rahi thhi toh maine kaha wo uss se kuchh baat karna chahta hai. Toh wo darr gayi aur chillane lagi isliye maine uska gala daba diya aur wall par uska sir maara aur uske baad usko jala diya aur music suntan hua chala gaya.
Then Pushpam took us to the flat and explained everything with action as how he killed the Ramchanphy. The police also searched his room corner there the police found his diary add language on the wall, 3 ladies top, bangles, necklace, laptop. Then police seized these things FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 38 of 72 there after. There after we took the body of Ramchanphy to Manipur."
In her testimony PW2 deposed as follows:
" As I recall, my sister Ramchanphy used to tell me that accused Pushpam used to stare at her while she was cooking and also at times passed comments to her. Before 24th October 2009 on Friday, my sister told me that somebody was knocking the door and she also told me that she was scared of Pushpam."
During her cross examination , PW2 further elaborated as follows :
" Accused used to follow my sister and my sister had told me that accused used to pass comments to her. However, I do not remember the exact words of comments."
60. It has been argued by Ld Counsel for the accused that neither does PW2 remember the comments that were passed on her deceased sister by the accused nor did she lodge any complaint with the police or even the landlord. This contention, however, does not hold much water as no person in his wildest imagination would think that the acts of staring and knocking at the door by a man would lead to murder of a girl by him. Besides as per the testimony of PW2, the deceased had disclosed about knocking of the door by the accused and that she was scared of him only a day prior to the incident in question. While appreciating this particular circumstance, FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 39 of 72 it can not be lost sight of the fact that the complainant belongs to Manipur and had come to Delhi to make a living . Her hesitation in approaching police regarding the prior conduct of the accused is natural.
61. The witness has been consistent throughout on how the initial impression changed at the hospital on 25.10.2009 when it came to light that the death of the deceased was not attributable to burns. It is also consistent with the observation in Ex PX-1 (OP Reference Card ) which shows that PW2 was present at the hospital when the doctor expressed his doubt about death by burns. She then expressed her suspicion over the accused and informed the police about behaviour of accused with the deceased prior to the incident.
62. A question that was put to PW6 during his cross examination has necessitated reproduction of the relevant portion of his statement u/s 164 Cr.P.C. (Ex. PW6/A) recorded on 18.01.2010 which is as follows :
" Main Vasant Kunj mein kaam karta hai. 24th Oct 2009 ko shaam ko ghar aayaa . Hum IInd Floorpar rehte hain. Maine ek ladka dekha jiska naam Pushpam hai . Main apne room mein gaya aur main kitchen mein gaya to dekha darwaza thhoda sa khula thha aur thhoda sa smoke aa raha thha . Mera sister ka body dekha aur uske baare maine uss ladke se puchha FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 40 of 72 ki ye sab kaise hua toh wo ladka Pushpam bola ki mujhe nahi pata main toh gaanaa sunn raha hoon...25th ko Doctor ne bulaya didi aur mujhe aur kaha ki tumhara koi enemy hai kyunki sister ka death natural nahi hai.Chhota sister ne pehle bataya thha ki usey darr lagta hai . Veh khaanaa nahi banayegi koi usey ghurta hai. Ye sab baat police ko batayi to police ne Pushpam ko pakad liya..."
During his cross examination PW6 Yaokhalek Hongray, following question was put by Ld. Counsel for the accused:
"Question: On what basis you named accused Pushpam as the suspect who might have committed offence against your sister during the recording of statement Ex PW 6/A before the Magistrate on 18th January 2010?
Answer: After seeing the dead body of my sister, I saw the accused and he was listening music with earphone and I asked him as to who did that ( who caused the death of my sister) bracket closed and he said that he did not know. Later he went inside the room and closed the door."
63. The testimonies of PW2 and PW6 have very well explained the circumstances in which they initially believed the burns by gas leak as cause of their sister's death and later expressed suspicion over accused Pushpam Kumar's role in her unnatural FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 41 of 72 death. At this stage, it would not be out of place to refer to the defense of the accused as reflected from the cross examination of PW6. It is the case of the accused that PW6 had murdered his sister elsewhere and planted the body at A-80, Munirka, New Delhi. Needless to say, there is absolutely no material on record to support this hypothesis.
Presence of Accused Pushpam at the Spot
64. The CDR (Ex. PW10/B-1 to Ex PW 10/B-11 ) of the mobile phone (9990741961) of the accused shows presence of accused at Munirka Village on 24.10.2009 at 12:31:03 PM, 04:07:32 PM and 10:55:39 PM. As per the location chart and cross- examination of PW10, IDEA Cell ID 11902 is of Munirka Village. During cross examination.
65. Accused has nowhere disputed the case of prosecution that he was present in his room on the 2 nd floor of House no. A-80 , Munirka Village, New Delhi between 1:30 PM when PW2 Timila Hongray left for work to 6:30 PM when PW6 Yaokhalek Hongray came to stay with his sister. There is not even a whisper even by way of putting a suggestion during cross examination of any witness that he was not present at the spot at the time of incident.
66. The accused has tried to raise a defense that on 24.10.2009, he remained in his room as he was seriously ill. He is, FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 42 of 72 however, not consistent on what that illness was. During cross- examination of PW2, accused put a question whether she or her sister or neighbours knew that he was suffering from cancer. PW2 replied in negative and stated:
"I as well as my sister did not know whether accused was suffering from cancer or not. Further I can not comment whether the neighbours also knew it or not."
67. In his S/A u/s 313 Cr.P.C. recorded on 26.03.2019, a question (Q7) was put to the accused regarding recovery and seizure of one skirt, one lady top, 2 bangles, greeting card, one mala, one monogram etc recovered from his room which he had purchased for gifting to the deceased. To this question,the accused replied as follows :
"Ans. It is incorrect. The gift items were brought over a long period of time at several instances before I fell ill with ulcer. The set articles were to be gifted to my two sisters Meenakshi and Sonali and wife Poonam."
In this reply, he claimed to have fallen ill because of ulcer. During the cross examination of PW26 IO Inspector Pawan Kumar, accused placed on record photocopies of certain medical documents (Mark X colly). The OPD dated 12.10.2009 of AIIMS Hospital, Urology Clinic mentions ulceration in penis area and diagnosis in mentioned as Phimosis. Circumcision was suggested. Skin OPD was FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 43 of 72 also advised. A date 24.11.2009 is also mentioned near 'circumcision'. An admission slip of AIIMS Hospital has also been annexed. It is dated 24th November. Year though is not visible as the document does not seem to have been photocopied properly. This slip shows that accused was to be admitted in Ward Uro minor Unit OT for circumcision day care procedure. Curiously, photocopy of prescription slip of Dr Mehta Urology & Surgery Centre dated 13.10.2009 has also been placed on record by the accused as part of Mark X (Colly) which shows that the accused underwent circumcision on 13.10.2009. Accused, however, did not prove these documents. Even if these documents are considered, they do not show that the accused was bed ridden on 24.10.2009. No such medical document was proved by the accused that would show that he was so unwell that he could not have come out of his room.
Fingerprints
68. Crime team inspected the crime scene where the dead body was found on 24.10.2009. Report of mobile crime team bearing S.O.C. No. 1310/09 dated 24.10.2009 pertaining to examination of scene of crime and lifting of exhibits with the suggestion to the IO that exhibits lifted be packed and be sent to FSL is Ex PW21/A. There is an over writing at Point B in date beneath the signatures of SI Jitender Kumar (PW21). It appears that the date was changed from 25th to 24th Oct 2009. It is noted that date and time of inspection is shown as 24.10.2009 at 10 PM to 10:45 FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 44 of 72 PM. Names of both ASI Surjeet and Inspector Pawan Kumar are mentioned in the column of IO. DD no. 58B is mentioned in place of FIR as inspection of scene of crime was conducted before registration of FIR.
69. During the course of cross examination dated 16.01.2023, PW21 SI Jitender denied the suggestion that the date at Point B under his signatures was 28.10.2009 and that he had changed it to 24.10.2009 at the instance of the IO . PW21 volunteered to say that it was a correction. Further, Ex PW 24/A would show that the exhibits lifted by the Crime Team from the spot vide Ex PW21/A were deposited at Malkhana by PW8 on 24.10.2009 itself. However, for the purpose of fingerprints , it is S.O.C report no. 1310/09 of the Finger Print Proficient HC Raj Kumar ( Ex PW21/B) which is relevant.
70. Ex. PW PW21/B is dated 24.10.2009. Date and time of examination is mentioned as 24.10.2009 at 10:00 pm to 10:30 pm. Name of ASI Surjeet ( PW8) is mentioned in the column of IO. FIR number is mentioned as DD no. 58 B dated 24.10.2009. This report shows that two chance prints Q1 and Q2 had developed on the Gas stove. Since HC Rajkumar expired before his testimony could be recorded, PW21 was recalled to prove the signatures and handwriting of HC Rajkumar on this document and to prove the report Ex PW 21/B. Regarding this document , the only question put to PW21 was that its contents were not written in his(PW21) FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 45 of 72 handwriting and did not bear his signatures. A suggestion was also put to him that this report was not handed over by HC Raj Kumar to him. PW21 admitted this suggestion.
71. In his cross-examination, PW26 deposed that the chance prints lifted from the stove were sent to Finger Print Bureau by the Crime team. Later PW26 collected finger prints of accused, PW2 and PW6 and sent them to Finger Print Bureau vide letter dated 07.01.2010 (Ex. PW26/E) for comparison with the chance prints. The report of the Finger Print Bureau (Ex PW 4/A) also shows that the chance prints marked Q1 and Q2 with their photographs were received by the bureau from Crime Investigation Team South District vide S.O.C. report no.1310/09 dated 24.10.2009.
72. In his S/A u/s 313 Cr.P.C. recorded on 26.03.2019 and additional S/A u/s 313 Cr.P.C. recorded on 31.01.2023, accused has stated, "on 26.10.2009 at about 11:00 AM in the police station IO Pavan Kumar gave me severe beatings and forced me to put my fingers on the gas stove kept in the police station and procured the report exhibit PW 4 upon a thereupon". It is worth noting that during the cross examination of PW26 IO Inspector Pavan Kumar ,the accused did not put this defense to him. No suggestion was put to the IO that he had forcibly taken the finger prints of the accused on 26.10.2009 on the gas stove at the police station. In these circumstances and in view of the fact that the chance prints were FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 46 of 72 sent to the Finger Print Bureau by the Crime Investigation Team, the argument that chance prints had been planted by the IO on the gas stove at the police station does not stand. It is also noted that neither in the cross examination of PW8 nor PW21 nor PW26 did the accused give the suggestion that the finger print proficient did not lift the chance print from the gas stove on 24.10.2009 as mentioned in the report of the Finger Print Proficient dated 24.10.2009 Ex PW21/B.
73. As per PW4/A, chance print marked Q1 is IDENTICAL with Right Index finger impression marked S1 on the finger impression slip of Pushpam son of Vijay Kumar r/o 102, Mamta Aptt., Boring road, Patna (Bihar). The second chanceprint could not be analysed as it was partial and smudged. During cross examination of PW4/Finger Print Expert, a suggestion was put to him by Ld Counsel for the accused that on the strength of old chance print , accurate analysis could not be done. PW4 denied the suggestion and deposed that accurate analysis could be done even at the strength of a chance print lifted a long time ago. The accused did not bring anything on record to show that the analysis of chance print by PW4 was incorrect.
74. The prosecution has, therefore, proved that chance prints were lifted by the Finger Print Proficient from gas stove at the spot of incident on 24.10.2009 and sent to the Finger Print Bureau by the Crime Investigation Team. Ex PW4 has proved beyond any FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 47 of 72 doubt that chance print Q1 lifted from the said gas stove was of the accused.
Post Mortem Report
75. PW13 Dr GA Sunil Kumar Sharma, Astt Professor, Deptt of Forensic Medicine, Safdarjung Hospital, New Delhi proved the Post Mortem Report ( Ex PW 13/A).
76. I will first consider the time of death of the deceased. As as per the postmortem report, time since death was about 18 hours. PM Report (Ex PW13/A) shows that autopsy started at 10:50 AM on 25th October 2009. It means that the death of the deceased occurred around 5:00 PM on 24th of October 2009. During the cross examination of the of PW8, a suggestion was put to him by ld counsel for accused that murder took place during the intervening night of 24/25.10.2009. The postmortem report has belied this defense of the accused. Further, Accused has not explained the basis of this defense. On one hand, defense of accused that emerges from cross examination of PW6 Yaokhalek Hongray is that it was PW6 who murdered the deceased else where and planted the body at A- 80, Munirka Village on the other hand his defense is also that the deceased was murdered during the intervening night of 24/25.10.2009. These two defense do not reconcile with each other. Defense of the accused is rather inconsistent and without any basis.
FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 48 of 72
77. The general observations in the postmortem report show that the eyes of the deceased were closed and tongue was caught between teeth. Deep burns were present on the back of the neck between the two shoulders at the back and occipital scalp. Superficial to deep burns were present on the back of both upper arms. Reddish abrasions were also found on her face that is near the eyebrows, left temple and right side upper neck. These 4 external injuries were antemortem injuries. Upon internal examination, it was noted that in the brain heat heamatoma was present on the occipital region and there was hardening of brain matter at occipital and cerebral region due to prolonged burning. It was further observed that the skin of the back and side of the neck were completely charred. The muscles of the back of the neck were charred and that of interior neck and soft tissues of anterior neck were hardened due to prolonged burning. Slight bruising was present on the left side of the neck along the carotid sheath.
78. PW13 also considered the FSL report (Ex PW27/A) which mentioned non detection of common poison in the viscera and presence of residue petrol on the scalp hair of the deceased. PW13 deposed as follows :
"After considering the detailed postmortem report and the FSL report, it is of the considered opinion that the cause of death in this case was throttling( compression of neck by the hands). The burns FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 49 of 72 mentioned in the PM report were postmortem in nature."
During his cross examination, following question was put to PW13 by Ld. counsel for accused :
"Question: On what basis have you stated before the Court that deceased had died due to throttling by hands?
Ans. At the time of post mortem, I had noted the neck injuries in the column of antemortem injuries in PM report and after going through the FSL report regarding vicera and then further again examined the injuries in PM report, I came to the conclusion that in the present case, cause of death was throttling."
79. PW 13 further explained in his cross examination that he had found the nail marks on the neck as referred in injury number 4 in post-mortem report. He did not notice any bleeding from nose, mouth and ear during post-mortem. He did not find any injury which might occur when the person who was being throttled tried to resist. He also did not notice any smell of petrol during post-mortem. The identity of the deceased was established on the basis of identification by brother and sister of the deceased. He further explained that he had opined throttling on the basis of injury number 4 as mentioned in post-mortem report. There was no thumb mark but only nail marks were noted. He also deposed in his cross examination that for throttling there was no necessity of thumb marks and furthermore, FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 50 of 72 there were burn marks because of which thumb marks , if any, might have got destroyed.
80. Following question was also put to PW13 by Ld. Counsel for the accused:
"Question: Why you have given the opinion before court that it is a case of throttling by hand when the backside and front side was completely burnt?
Ans. : Only the back and side of the neck was burned and not the front part as mentioned in the PM report and as there were nail marks on front side, I had opined death by throttling in view of other injuries."
81. During the course of our final arguments, a defense was put up that it was not possible for a single person to throttle a 19 year old girl of average physique. This defense was also put to PW 13 during his cross examination. PW 13 deposed that throttling was possible by a single person even if the deceased was of average physique and was of 18 to 20 years of age.
82. The PM report and the testimony of the PW13 proves the case of prosecution that the death of the deceased was caused by throttling and after her death, her neck and upper portion of the body was subject to prolonged burning to destroy the tell-tale signs of throttling.
FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 51 of 72 State of mind of accused
82. Accused was a Teaching Assistant in the Department of Applied Mechanics at IIT Delhi. Exhibit PW 22 /A is the complaint dated 18.09.2009 of the girl students of the first year and second year of Civil Department against him. It is addressed to the Dean of students to bring to his attention indecent, cheap, vulgar and suspicious behaviour of Teaching Assistant Mr Pushpam (accused). It is mentioned in the complaint that last year he had troubled all of second year girls during a certain course not only in class but in library and reading room and that year too the first year girls were facing the same problem and were really scared of him.
84. Ex. PW22/B shows that on 7th October 2009, a committee was constituted to conduct a preliminary inquiry into the abovesaid. Complaint Ex. PW22/C is the minutes of meeting held on 21st October 2009 wherein it is mentioned that after nearly 45 minutes of discussion, it emerged that the accused regularly accosted these students and others and tried to strike up a conversation with them at the canteen, library, reading room and other public meeting places. He targeted lady students whether they were alone, in groups or in mixed company. Although the accused made the ladies uncomfortable, there was no incidence of verbal or physical assault on his part. On some occasions, the accused was ticked off by the students which resulted in him leaving them alone for a few days before resuming his harassment. It was resolved in the meeting that FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 52 of 72 the accused would benefit from counseling and it was felt that the course of action could be finalized only after meeting him. Accused was then requested by the committee to meet it on Monday the 26th of October 2009.
85. Accused has not disputed the filing of complaint by girl students against him. The above-said documents do not support the assertion of the accused that the committee had ruled in his favour. Before next course of action could be finalized by the Committee, accused was arrested in the present case.
86. After arrest of accused, his disclosure statement (Ex. PW2/D) was recorded by PW26 IO/Inspector Pavan Kumar in presence of PW2 and PW6. In his disclosure statement, the accused also stated that he had purchased gift items for the deceased as he was interested in her. At his instance and in presence of PW2 and PW6, lady's clothes i.e. 3 tops, 2 bangles, necklace, monogram with love related message, sunglasses, one skirt and one greeting card were recovered from his room. In his S/A u/s 313 CrPC, accused explained that he had purchased these articles for his two sisters and wife. A lap top and a diary was also seized from his room. Abusive words like randi mujhe bhul ja; teri maa ki chut for women were found written on wall of his room ( photographs part of Ex PW25/B colly ). Pornographic material was found on his laptop. The entries in his diary were made on 7 th, 8th, 9th January 2009 and on 4th, 7th and 8th August. These entries read as follows :
FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 53 of 72 " Isliye ab main badal gaya hoon. Mujhe ladki chahiye sirf masti aur masti ke liye aur aisa hi hoga.
"Manzil bahut dur hai ab bhi.
Bahut saare kaam karne hain mujhe. Sabse bada kaam toh ghar basaane ka hai, jo aaj tak nahi bas paya. Jo kisi bhi -
insaan ki Fundamental Jaroorat hoti hai pyar, sex, children and family wo zarurat meri aaj tak poori nahi ho saki. Ladkiyan to saikdon (hundreds) aay gayi zindagi se."
" Ladke to ladke, unn ladkiyon tak ne mujhe ullu aur bewakoof banaya jinhe poori izzat aur samman diya".
" Ek aur baat hai, maine ek cheez ki kami bahut zyada mehsoos ki hai. Khaas kar pichhle kuchh dino mein jab main genuine musibato se guzra
- ek ladki ka saccha pyar. Kam se kam ek ladki ka saccha pyar .Wo mujhe aajtak haasil na hua. Wo mujhe dila de to zindagi aasaan."
87. Accused has not denied these entries. The nature of complaint against the accused by the young girl students of first year and second year at IIT, Delhi, large amount of pornographic material on his laptop, abusive words for women on the wall of his room and lady's articles found in his room show his proclivity to come close to young women and his tendencies towards women in general. In fact, the complaint of young IIT girl students is similar to the conduct of FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 54 of 72 accused towards the deceased as disclosed by PW2.
Extra judicial confession
88. Prosecution has relied upon the extra judicial confession made by the accused before PW3 Dr Rajat Mitra, Director, Swanchetan, Society of Mental Health in a separate room at the police station. IO PW26 Inspector Pavan Kumar requested PW3 to examine the accused in respect of his mental state. On 27.10.2009, PW3 took a counseling session of accused Pushpam Sinha in a separate room at the PS Vasant Vihar and prepared his Assessment Report. He reported that accused stated that he was extremely angry with the deceased for not reciprocating his feelings and he killed her by strangulation and burning her body in the kitchen. At the time of this extra judicial confession , accused was on Police remand and the separate room was within the police station. The evidentiary value of such a confession is rather weak.
Case laws relied upon by Defense
89. Ld. Counsel for the accused has relied upon following Judgments:
(i) Ganpat Singh Vs. State of Madhya Pradesh (2017) 16 SCC 353 wherein it has been held by Hon'ble Supreme Court of India that the theory of last seen together comes into play, where FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 55 of 72 time gap between point of time when accused and deceased were seen last alive and when deceased is found dead, is so small, that possibility of any person other than accused being author of crime becomes impossible. It is noted that in this case, Hon'ble Supreme Court of India had observed that the case of prosecution was riddled with unexpected contradictions and in such circumstances mere circumstance that appellant was last seen with deceased is an unsafe hypothesis to found a conviction on a charge of murder in that case.
Further, time of death in the case before Hon'ble Supreme Court of India was estimated to be between two to four weeks prior to recovery of body.
(ii) Tipparam Prabhakar Vs The State of Andhra Pradesh 2009 13 SCC 534 wherein it has been reiterated that it would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In the case before Hon'ble Supreme Court of India, merely identity card of the appellant- convict was found near the dead body of the deceased. Finger prints of the appellant-convict were not found on the article seized.
(iii) Kunju Muhammed alias Khumani & Anr. Vs. State of Kerala (2004) 9 SCC 193 wherein conviction by Hon'ble High FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 56 of 72 Court was set aside by Hon'ble Supreme Court of India on account of serious doubts as to the place of occurrence as stated by prosecution. In the said case, the case of prosecution was that the deceased after he was dragged to the second place of incident, was placed in a supine position and A-2 cut his neck with MO 2 causing the fatal injury. The eye witness PW4, however, could not recall how the attack had taken place. Testimony of this witness was, therefore, rejected. Further, the versions of PWs were materially at variance with each other and were inconsistent.
(iv) Mahamadkhan Nathekhan Vs State of Gujarat (2014) 14 SCC 589 wherein it was held that when prosecution case rests purely on circumstantial evidence, motive plays an important part in order to tilt the scale. It was also reiterated that the circumstances which are not put to the accused under section 313 Cr.P.C. cannot be used against him and must be excluded from consideration. The said statement cannot be treated as evidence within the meaning of section 3 of the Evidence Act, as the accused cannot be cross examined with reference to such statement. In the case before Hon'ble Supreme Court of India, doctor and ballistic expert stated that there was every possibility that gun injury occurred due to accident. In these circumstances, it was observed that there was no motive for the occurrence.
(v) S. Arul Raja Vs. State of Tamilnadu (2010) 8 SCC 233 wherein it was held that concept of extra-judicial confession is FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 57 of 72 primarily a judicial creation, and must be used with restraint in limited circumstances, and should also be corroborated by way of abundant caution. In the said case, connection between events and escalations of hostilities between the appellant-convict and deceased could not be established and, therefore, motive of commission of offence was not proved. The confessional statement of A-1 was recorded by the Executive Magistrate without full statutory compliance. Further, A-1 gave a representation to the Judicial Magistrate Court that his confessional statement was not voluntary and he was forced to give the same by the police.
(vi) Subhro Kamal Mukherjee & Dipankar Datta Vs State 2010 0 Supreme (Cal) 1086 wherein it was reiterated that if two reasonable conclusions were possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the Trial Court. In the said case before Hon'ble High Court of Judicature at Calcutta, the doctor who conducted post mortem examination of the victim opined that she had suffered 100 percent full thickness burn injury, ante-mortem in nature. Entire body of the victim was charred. Hands of the victim were totally burnt and the fingers half bent inside, the nails were burnt and the skin was also totally burnt. In such circumstances, thumb impression of the victim obtained by Executive Magistrate on the dying declaration with the ridge of concerned finger being conspicuous made the dying declaration a doubtful piece of evidence.
FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 58 of 72
(vii) Dev Kanya Tiwari Vs State of Uttar Pradesh (2018) 5 SCC 734 wherein the case of the prosecution was that the deceased went to his in-laws' house on 28.09.1995 to see the well being of his children where he was killed by his wife and in-laws. Wife of the deceased had also given a complaint to the police stating that the deceased had consumed poison. In the post mortem report, it was opined that the cause of death was asphyxia due to strangulation of throat. Viscera of the deceased was, however, not preserved. The statements of the prosecution witnesses and of the IO corroborated the version of accused that the deceased had committed suicide.
(viii) Sahadevan & Anr. Vs State of Tamilnadu (2012) 6 SCC 403 wherein it was held that extra-judicial confession is a weak piece of evidence. Court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent, it may be difficult for Court to base a conviction on such a confession. It was also held that in case of circumstantial evidence, onus lies upon prosecution to prove complete chain of events which must undoubtedly point towards guilt of accused. When prosecution relies upon an extra-judicial confession, Court has to examine the same with a greater degree of care and caution.
(ix) Sunil Rai alias Pauya & Ors. Vs. Union Territory, Chandigarh (2011) 12 SCC 258 wherein it was held that extra-
FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 59 of 72 judicial confessional statement made orally before a person with whom maker of confession has no intimate relationship is not a very strong piece of evidence and in any event it can only be used for corroboration.
(x) Sunita Majhi Vs. State of West Bengal 2008 2 CalCriLR 556 wherein it has been held by Hon'ble High Court of Judicature at Calcutta that the confessional statement made before the police might help the police to seize the articles. The prosecution would only be entitled to use those exhibits in support of the charge. The other part of the statement was, however, inadmissible in evidence.
(xi) Subramaniam Vs. State of Tamilnadu & Anr. (2009) 14 SCC 415 wherein it was observed that a large number of symptoms were absent which ordinarily point out to the cause of death of asphyxia by smothering. There was frothy fluid discharge of blood from mouth and nose but no frothy fluid blood was found on the pillow. No saliva, blood and tissue cells were found on the pillow; no scratches, distinct nail marks, or laceration of the soft parts of the victim's face was noticed. No bruising or laceration was found in the lips, gums and tongue. In the said case, even though body was not burnt after killing, the wrong test was applied that all the features in a given case of smothering would not be available where the body was burnt after killing. There was also a missing link in the chain of evidence after the deceased was last seen together FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 60 of 72 with the accused persons and the discovery of the dead body in the hospital.
(xii) State of Madhya Pradesh Vs. Laakhan alias Lakhan (2009) 14 SCC 433 wherein it was held that even evidence of a solitary witness can be sufficient to record conviction if the same is wholly reliable. No particular number of witnesses is necessary to prove any fact, as statutorily provided in section 134 of the Evidence Act.
(xiii) Ramesh Bhai & Anr. Vs. State of Rajasthan 2009 (2) Crimes 337 (SC) wherein it has been held that that the circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
(xiv) State of Rajasthan Vs. Bhanwar Singh with Rajesh Solanki & Anr. Vs. Bhanwar Singh & Ors. (2004) 10 SCC 709 wherein the expert opinion as also evidence of the other witnesses proved that the gun went off accidentally.
(xv) Anjan Kumar Sarma & Ors. Vs. State of Assam (2017) 14 SCC 359 wherein it has been held that inferences drawn by Court have to be on basis of established facts and not on conjectures. Suspicion cannot take place of legal proof.
FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 61 of 72 (xvi) Ananda Poojary Vs. State of Karnataka (2015) 1 SCC 235 wherein the death certificate of the deceased showed cause of death as cardiac arrest whereas post mortem report mentioned it as asphyxia due to smothering. It was held that in absence of clear certainty about the cause, when there was a possibility of both the causes of death, benefit of doubt should be given to appellant- accused.
90. The careful consideration of above Judgments would show that except for the Judgments at serial numbers (viii), (ix), (x),
(xii) and (xiii) are not applicable to the present case being distinguishable on facts.
Case laws relied upon by prosecution
(i) Judgment dated 28.07.2003 in Appeal (Crl) 1149 of 2002 titled as Krishnan & Anr. Vs. State Rep. By Inspector of Police wherein Hon'ble Supreme Court of India has observed that doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 62 of 72 commonsense. It must grow out of the evidence in the case.
(ii) Shivaji Sahebrao Bobade & Anr. Vs. State of Maharashtra 1973 AIR 2622 wherein it has been held by Hon'ble Supreme Court of India that the dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defense and to the soothing sentiments that all acquittals are always good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated 'persons' and more severe punishment of those who are found guilty.
Law Related to Circumstantial Evidence
91. In Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984; Equivalent citations: 1984 AIR 1622, 1985 SCR (1) 88, it has been held as follows:
"3:1. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence.
This is trite law. However, where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 63 of 72 lend assurance to the Court. In other words before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case the same could be cured or supplied by a false defence or a plea which is not accepted by a Court. [162C-E] 3:2. Before a false explanation can be used as additional link, the following essential conditions must be satisfied: [165E]
1. Various links in the chain of evidence led by the prosecution have been satisfactorily proved; [165E]
2. The said circumstance point to the guilt of the accused with reasonable definiteness and; [165G]
3. The circumstances is in proximity to the time and situation.[165H] If these conditions are fulfilled only then a Court can use a false explanation or a false defence as an additional link to lend as assurance to the Court and not otherwise. On the facts and circumstances of the present case this does not appear to be such a case.
There is a vital difference between an incomplete chain of circumstances and a circumstance, which, after the chain is complete, is added to it merely to reinforce the conclusion of the court. Where the prosecution is enable to FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 64 of 72 prove any of the essential principles laid down in Hanumant's case the High Court cannot supply the weakness or the lacuna by taking aid of or recourse to a false defence or a false plea.
[166A; 166D-E] 92 3:3. Before a case against an accused vesting on circumstantial evidence can be said to be fully established the following conditions must be fulfilled as laid down in Hanumat's v. State of M.P. [1953] SCR 1091. [163C]
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established; [163D]
2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; [163G]
3. The circumstances should be of a conclusive nature and tendency;[163G] 4. They should exclude every possible hypothesis except the one to be proved; and [163H]
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. [164B] These five golden principles constitute the panchsheel of the proof of a case FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 65 of 72 based on circumstantial evidence and in the absence of a corpus deliciti."
Analysis
92. On the touchstone of above said judgment, I shall consider whether prosecution has established the complete chain of events to prove its case against the accused.
93. The first circumstance that on 24.10.2009, accused Pushpam and PW2 Timila Hongray lived on second floor of house no. A-80, Munirka Village in adjoining rooms and deceased had come to stay with her sister PW2 about a month prior to the incident in question has been proved.
94. The second circumstance that on the date of incident i.e. 24.10.2009, accused was present on the second floor of A-80 from 01:30 PM to 06:30 PM has been proved. PW2 saw the accused present in his room at the time at 01:30 PM while she was leaving for work. PW6 saw the accused present in the corridor / passage on the second floor of A-80 at around 06:30 PM listening to the music. The CDR of the mobile phone of the accused shows his continuous presence at the spot / Munirka village from 01:30 PM to 06:30 PM. Accused himself has not disputed his presence at the spot during this period.
95. The next circumstance of proximity of the accused to FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 66 of 72 the place of occurrence has been proved. The site plan shows that the kitchen on the second floor where deceased was present was easily accessible to the accused.
96. State of mind of the accused at the time of incident in question, his frustration towards women and proclivity of trying to get close to young women has been proved.
97. The circumstance of extra judicial confession by the accused at the police station albeit in a separate room in presence of Dr. Rajat Mitra is a weak evidence and does not help the prosecution.
98. PW6 and PW15 Ct Gulvinder Singh have deposed in their testimonies that when they reached the spot, smell of LPG was lingering.
99. It has also been proved by expert evidence that the deceased was first throttled and after she died, her neck portion and upper part was subject to prolonged burning.
100. That the fingerprint of the accused was found on the gas stove in the kitchen where the deceased was murdered has been proved. These circumstances completely support the case of the prosecution that after killing the deceased by throttling, accused tried to destroy the evidence of commission of offence to screen himself from legal punishment.
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101. The prosecution was not able to prove the circumstance of presence of petrol residue in the hair (scalp hair) of deceased, piece of cloth and the black residue lifted from the scene of crime. No material has been placed on record by Ld. Special Public Prosecutor in support of his contention that burning by Liquid Petroleum Gas (LPG) might leave petrol residue. This circumstance, however, is not fatal to the case of prosecution and does not give rise to any other hypothesis than that of the prosecution.
102. Accused was seen by PW6 in the corridor of second floor listening to music at around 6:30 PM on 24.10.2009 even when smoke was lingering out of the said kitchen and smell of LPG was lingering. It is a rather unnatural conduct on part of the accused.
103. Coming back to the presence of accused on the spot, PW2 has deposed that when she left for work only accused was present on the second floor of house no. A-80 apart from her sister. PW6 has deposed that when he reached the second floor, only accused was present on the second floor and his sister was lying dead in the kitchen. Accused himself has not disputed the case of prosecution that he was present on the second floor of A-80 from 1:30 pm to 6:30 pm. It was, thus, within the exclusive knowledge of the accused as to what transpired between 1:30 pm to 6:30 pm on the second floor of A-80 and whether anyone else except him and the deceased was present there. Section 106 of the Indian Evidence Act,1872 reads as follows:
FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 68 of 72
106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket.
The burden of proving that he had a ticket is on him.
104. The accused did not discharge the burden and kept silent on what transpired between 1:30 PM to 6:30 PM on 24.10.2009 on second floor of A-80 when he and deceased were alone there. He has also remained silent if any other tenant or person was present there. The testimonies of PW2 and PW6 show that no tenant other than the accused and the deceased was present on the second floor of A-80, Munirka Village at 01:30 PM and at 06:30 PM on 24.10.2009. Accused has also failed to give a cogent explanation as to how his finger print was found on the gas stove. His defense that he was inside his room throughout on 24.10.2009 on account of serious illness has not found favour and was not proved.
105. The detailed discussion in the preceding paragraphs would show that the accused has taken inconsistent stands which are FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 69 of 72 reflected in the cross-examinations of the prosecution witnesses. One of his defenses is that the murder of the deceased was committed during the intervening night of 24/25.10.2009. The next line of defense is that PW6 committed the murder of his sister and placed her dead body in the kitchen. During the course of final arguments, it was insisted on behalf of the accused that it was a clear case of accidental death. Regarding his presence at the spot, the accused has claimed that he was inside his room on 24.10.2009 owing to serious illness. At one instance, he claimed to be a cancer patient and on the other, he claimed to have been operated upon for ulcer in his private part. All these defenses of the accused are not only inconsistent with each other but there is no material on record which would support his hypothesis.
106. Thus, no other hypothesis or possibility inconsistent with the guilt of accused has been put forth which would show that either the murder was committed by someone other than the accused or it was committed by PW2 and PW6 i.e. sister and brother of the deceased respectively. In view of the natural testimonies of PW2 and PW6 and in absence of any incriminating material against them, the possibility of commission of murder by PW2 or PW6 is totally ruled out.
107. The other contentions of Ld. Counsel for the accused are that the kitchen was small and in that small kitchen, a person cannot be murdered by throttling. It has also been argued that Yaron FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 70 of 72 So who had made 100 number call to the police and Ms. C. Ruthi whose phone was being used by PW2 Timila have not been examined. Ms. Florence Awungshi who wrote the complaints at the instance of PW2 and PW6 has also not been examined. So far as the arguments that the size of the kitchen was small and that the kitchen articles are not seen strewn around are concerned, these factors do not impact the case of the prosecution. It has not been explained by the defence how murder by throttling could not have been committed in the said kitchen and how its size could have impacted the act of throttling. Further, photographs of the crime scene would show that there were not too many articles in the kitchen. It can also not be lost sight of the fact that accused had ample time to take care of many things at the spot. As per the postmortem report, the estimated time of death was 18 hours prior to conduct of autopsy which brings the probable time of death as around 05:00 PM on 24.10.2009. PW6 arrived at the spot only at 06:30 PM. By that time, certain material parts of the dead body had already been subject to prolonged burning.
108. Non-examination of Sh. Yaron So and Ms. Florence Awungshi is also not fatal to the case of the prosecution as PW2 and PW6 have admitted that their initial impression regarding cause of death was burns due to gas leak. They have also admitted both their complaints i.e. initial complaints dated 24.10.2009 and subsequent complaint of PW2 dated 25.10.2009. Merely because PW2 had been using the phone in the name of her friend C. Ruthi for past one year, FIR No. 340/2009 PS Vasant Vihar State Vs Pushpam Kumar 31.07.2023 Pg No. 71 of 72 it does not make C. Ruthi a material witness in the present case.
109. In light of above discussion, the prosecution has established the complete chain of circumstances and has proved beyond any doubt that it was accused Pushpam Kumar who committed the murder of 19 years old girl Ram Chanphy on 24.10.2009 in kitchen on the second floor of house no. A-80, Munirka Village, New Delhi by throttling. After she died, accused subject the neck portion and the upper portion her dead body to prolonged burning on the gas stove to cause disappearance of evidence against him to screen himself from legal punishment.
CONCLUSION
110. The prosecution has proved the charge for the offence punishable u/s 302 IPC and Section 201 IPC against accused Pushpam Kumar beyond any shadow of doubt. Accused Pushpam is, therefore, convicted of offences punishable u/s 302 IPC and 201 IPC.
PRONOUNCED IN OPEN COURT ON THIS 31st DAY OF JULY 2023 VRINDA Digitally signed by VRINDA KUMARI KUMARI Date: 2023.07.31 16:58:12 +0000 (Vrinda Kumari) ASJ-02, South District Saket Courts, New Delhi.
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