Delhi District Court
State vs Durga @ Darga on 30 November, 2023
THE COURT OF SH. SUNIL KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE-09, WEST
TIS HAZARI COURTS, DELHI
CNR No : DLWT01-002531-2017
Sessions Case No : 196-2017
FIR No : 542-2016
Police Station : Anand Parbat
Under Sections : 302/404 IPC
STATE
VERSUS
DURGA @ DARGA
S/o Sh. Shankar Lal
R/o H. No. T-174, Punjabi Basti
Baljeet Nagar, Anand Parbat, New Delhi. ...Accused
Date of Institution 10.03.2017
Date of receiving by this Court 23.03.2017
Date of conclusion of arguments 07.11.2023
Date of announcement of judgment 30.11.2023
Final order Accused Durga @ Darga S/o
Sh. Shankar Lal is convicted
for the charge of the offence
punishable under Section
302 IPC.
However, accused Durga @
Darga S/o Sh. Shankar Lal is
acquitted for the charge of
the offence punishable under
Section 404 IPC.
FIR No : 542/2016, SC No. 196/2017
PS : Anand Parbat State Vs. Durga @ Darga Page No. 1 of 58
JUDGMENT
1. Accused Durga @ Darga was committed to the Court of Sessions to stand trial for the offences punishable under Sections 302 IPC & 404 IPC for committing murder of his wife Smt. Sonia W/o Sh. Sonu by strangulating her neck with stole (small shawl) and for possessing cash of Rs. 170/-, one pair of tops of golden colour, one nose pin of golden colour and three pairs of gold ear rings of the deceased.
FACTS OF THE CASE
2. The prosecution case in narrow compass is that on 12.12.2016 at about 10.50 AM a call was received at Police Station Anand Parbat regarding bringing of dead body of Sonia W/o Late Sonu, R/o B-79, Baljeet Nagar near Gurudwara, Punjabi Basti (In short "the deceased") by her relatives viz. Rajesh and Shanti at Sardar Vallabh Bhai Patel Hospital (In short "SVBP Hospital"). The said call was reduced into writing vide DD No. 08A and brought into the knowledge of the SHO, who was on patrolling duty in the area. The said DD was marked to Sub-Inspector Om Prakash with the directions to reach at the spot. In the meantime, at about 11.05 AM, another call was also received from Dr. Kamlesh, SVBP Hospital thereby informing that a lady Sonia W/o late Sonu was brought dead in the said hospital by her uncle Rajesh and sister Shanti. Request for sending the Investigating Officer to the hospital was also made. The said call was also reduced into the writing vide DD No. 09A. Subsequently, SI Jagroop Singh, SI Manish Kumar and W/Ct. Sanjana were directed by the then SHO to reach at the aforesaid FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 2 of 58 hospital. Subsequently, the 1st Investigating Officer SI Om Prakash along with his staff reached at SVBP Hospital. In the meantime, Inspector Malkiat Singh (In short "the Investigating Officer") also reached at the said hospital. Inquiries revealed that deceased Sonia one and half month prior to her death, also got re- married with the accused. The Investigating Officer informed about the same to SDM, Patel Nagar as well as other Senior Officers. Dead body of the deceased was throughly examined by the Investigating Officer with the help of W/Ct. Sanjana. Ligature marks were found on the neck of the deceased. Crime Team was also called at the hospital and photographs of the dead body of the deceased were taken from different angles. Silver pajeb, chutki and silver kadiya, worn by the deceased, were handed over to Shanti, sister of deceased against handing over memo. 2.1. Executive Magistrate Sh. Banshidhar Meena reached at the said hospital and made inquiries from the relatives of the deceased and recorded their statements. The dead body of the deceased was preserved at Mortuary of Maulana Azad Medical College, Delhi through SI Om Prakash and HC Anand Singh. 2.2. On 12.12.2016, SI Om Prakash and the Investigating Officer went to SVBP Hospital.
2.3. Executive Magistrate recorded the statement of deceased relatives after making inquiries from them and FIR Ex. PW5/B was registered upon the statement of Smt. Moni Devi, mother of the deceased Sonia wherein, she informed that she is having five daughters and two sons. All the five daughters have already been married. Deceased Sonia got married in the year 2002 with Mr. Sonu. She was having three children. However, said Sonu (husband of her deceased daughter) expired in the year FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 3 of 58 2009. She was earning her livelihood by doing household chores in various houses/kothies. She came to know that her deceased daughter Sonia prior to one and half month of her death, got married with Darga S/o Late Sh. Shankar Lal (In short "the accused"). At that time, the accused was working as a labourer, but after marriage, he stopped going for work and was surviving upon the money, earned by her deceased daughter. Whenever the deceased asked the accused to go outside for work, the accused used to abuse and quarrel with her deceased daughter. She also came to know that the accused had also quarreled on 11.12.2016 with her deceased daughter and on 12.12.2016 at about 05.00 AM, he managed to get the door open from the deceased by saying that he had brought sweet/potable water for the deceased. Her Nati Subham informed her that accused locked the door from inside and strangulated neck of her deceased daughter. She went to the spot upon the inquiries of her younger daughter Aasha and found that her daughter Sonia was lying dead on the floor. Jewelery (one pair of gold ear ring and three pairs of gold balis), worn by the deceased, were taken away by the accused, who has not come before the family members of the deceased. Her daughter was killed by Durga @ Darga. Prayer for taking legal action against him was also made.
2.4. During investigation, the Investigating Officer collected emergency card no. E-92107 of the deceased wherein, it was written that the patient was declared dead clinically at 10.45 AM on 12.12.2016.
2.5. Site plan was also prepared at the instance of SI Om Prakash. The efforts were made to search the accused Durga @ Darga, but he could not be found. During investigation, the spot FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 4 of 58 was inspected and photographed. Statements of the witnesses under Section 161 Cr. P.C were also recorded. 2.6. During investigation, the inquest papers were prepared by the Investigating Officer and the postmortem of the dead body of the deceased was got conducted through SI Om Prakash under the supervision of Executive Magistrate. After postmortem, the dead body of the deceased was handed over to her relative. The Investigating Officer collected the detailed postmortem report from the concerned doctor wherein, the doctor opined time since death about one and half day. Cause of death:
Asphyxia as the result of ligature strangulation via injury no. 1. All injures are ante mortem in nature and fresh in duration. Injury no. 1 is produced by the ligature material, injury no. 2 & 3 are possible by nail and injury no. 4 & 5 are possible by blunt force. Injury no. 1 is individually sufficient to cause death in ordinary course of nature. Viscera was preserved to rule out for concomitant poisoning and alcohol intoxication. Subsequent opinion regarding the stole was obtained from the autopsy surgeon wherein, it was opined that ligature mark (injury no.1) present on the neck of the deceased as mentioned in the PM Report No. 1257/16 is possible by seized stole (small shawl) provided for examination. 2.7. During investigation, accused Durga @ Darga was arrested on 13.12.2016 at the instance of deceased brother Sonu.
Disclosure statement of the accused was recorded and pointing out memo of the place of occurrence was prepared. Jewelery of the deceased (one pair of gold ear earing, one gold nose pin and three pairs of gold ear rings) with a sum of Rs. 170/- were recovered from the pant pocket of the accused. Jewelery of the FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 5 of 58 deceased was identified by her brother Sonu. The accused produced the red colour stole (small shawl) from under the bed stating that the same was used by him for strangulating the throat of the deceased.
2.8. Exhibits and sample seal were deposited with FSL for examination. Scaled site plan of the spot was prepared through draughtsman Inspector Manohar Lal. The fact of re- marriage of the deceased with the accused was claimed to be substantiated during investigation with the factum of the frequent quarels between them. Therefore, the accused was arrested and was produced before the concerned Court and sent to the judicial custody.
2.9. Statements of the witnesses were recorded under Section 161 Cr. P.C. On completion of the Investigating, the charge sheet was prepared and the same was filed before the Court.
COGNIZANCE:
3. Cognizance was taken by the learned Additional Chief Metropolitan Magistrate (West), Delhi on 10.03.2017.
CHARGE
4. Vide order dated 11.04.2017, charge for the offences punishable under Sections 302 IPC & Section 404 IPC was framed against the accused, to which, the accused pleaded not guilty and claimed trial.
FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 6 of 58 PROSECUTION EVIDENCE:
5. In order to bring home the guilt of the accused, prosecution examined the following 22 witnesses:
Sr. Name of Crux of Testimony No. witnesses
1. PW-1 Smt. Asha She is material witness of the prosecution of this case being the sister of the deceased.
The evidence of this witness is relevant for proving the allegations against the accused as well as for establishing the identity of the accused.
This witness has tendered the following documents during her deposition:
Her statement recorded by SDM on 12.12.2016 : Ex. PW1/A This witness was duly cross examined by the learned defence counsel.
2. PW-2 Inspector He is a formal witness of the Narendra Singh prosecution of this case being the Incharge of Mobile Crime Team, Central District, Delhi.
This witness has tendered the following documents during his deposition:
Crime Scene Report : Ex. PW2/A
This witness was duly cross examined
by the learned defence counsel.
FIR No : 542/2016, SC No. 196/2017
PS : Anand Parbat State Vs. Durga @ Darga Page No. 7 of 58
3. PW-3 Sh. He is the material witness of the
Bansidhar prosecution of this case being
Meena Tehsildar-cum-Executive Magistrate
and recorded statements of
relatives/family members of the
deceased.
This witness has tendered the following documents during his deposition:
a) Statement of Smt. Moni Devi : Ex. PW3/A
b) Statement of Smt. Shanti : Ex. PW3/B
c) Carbon copy of dead body handing over memo : Ex. PW3/C Apart from tendering the aforesaid documents, this witness has also relied upon the following documents:
Statement of Smt. Asha : Ex. PW1/A This witness was duly cross examined by the learned defence counsel.
4. PW-4 Dr. Arun He is the material witness of the Kumar S. prosecution of this case, who conducted the postmortem over the dead body of the deceased.
This witness tendered the following documents during his deposition:
a) Detailed postmortem report FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 8 of 58 : Ex. PW4/A
b) Diagram sheet showing the external injuries on dead body of deceased : Ex. PW4/B
c) 10 inquest papers : Ex. PW4/C (Colly)
d) Subsequent opinion : Ex. PW4/D This witness was duly cross examined by the learned defence counsel.
5. PW-5 HC Siya He is the formal witness of the Ram investigation of this case being the Duty Officer and recorded various DDs as well as FIR.
This witness has tendered the following documents during his deposition:
a) Endorsement made on the rukka : Ex. PW5/A
b) Copy of FIR : Ex. PW5/B (OSR)
c) Certificate under Section 65B of Indian Evidence Act : Ex. PW5/C Apart from tendering the aforesaid documents, this witness also relied upon the following documents:
a) Copy of DD No. 8A : Ex. PX2 (OSR)
b) Copy of DD No. 9A : Ex. PX3 (OSR) FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 9 of 58
c) Copy of DD No. 12A : Ex. PX4 (OSR)
d) Copy of DD No. 14A : Ex. PX5 (OSR) This witness was duly cross examined by the learned defence counsel.
6. PW-6 W/Ct. A formal witness of the investigation.
Sanjana This witness tendered the following documents during her deposition:
a) Copy of fard hawalgi : Ex. PW6/A This witness was duly cross examined by the learned defence counsel.
7. PW-7 Smt. She is the material prosecution witness Shanti Devi of this case being the sister of the deceased.
The evidence of this witness is relevant for proving the allegations against the accused as well as for establishing the identity of the accused.
This witness has tendered the following documents during her deposition:
Seizure memo of marriage photograph of her deceased sister : Ex. PW7/A Apart from tendering the aforesaid documents, this witness also relied upon the following documents:
FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 10 of 58 Her statement recorded by the SDM : Ex. PW3/B This witness was duly cross examined by the learned defence counsel.
8. PW-8 Dr. She is the formal witness of the Kamlesh Saini prosecution of this case as she informed the police regarding bringing of the deceased in the hospital and the deceased was examined under her supervision.
This witness has tendered the following documents during her deposition:
Emergency registration card of the deceased : Ex. PW8/A This witness was cross examined by the learned defence counsel.
9. PW-9 Smt. Moni She is the material witness of the Devi prosecution of this case being the mother of the deceased as well as the complainant in this case.
The evidence of this witness is also relevant for establishing the identity of the accused.
This witness has relied upon the following documents during her deposition:
Her statement : Ex. PW3/A FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 11 of 58 This witness was duly cross examined by the learned defence counsel.
10. PW-10 Master He is star/material prosecution witness Shubham of this case being the son of the deceased as well as eye witness of the entire incident.
This witness was duly cross examined by the learned defence counsel.
11. PW-11 Ct. Harsh He is the formal witness of the prosecution of this case as some investigation was carried out in his presence.
This witness has tendered the following documents during his deposition:
a) seizure memo of box containing viscera of the deceased : Ex. PW11/A
b) seizure memo of cloths of the deceased : Ex. PW11/B
c) seizure memo of sealed envelope containing nail clippings of the deceased : Ex. PW11/C
d) seizure memo of sealed envelope containing tapping from ligature mark from neck of the deceased : Ex. PW11/D
e) seizure memo of sealed envelope containing scalp hair of deceased : Ex. PW11/E FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 12 of 58 This witness was not cross examined by the learned defence counsel despite being given an opportunity for the same.
12. PW-12 Sh. Sonu He is the material prosecution witness of this case being the brother of the deceased.
Evidence of this witness is relevant as the accused was arrested at his instance as well as in his presence.
This witness has tendered the following documents during his deposition:
a) arrest memo of accused : Ex. PW12/A
b) personal search memo of the accused : Ex. PW12/B Apart from tendering the aforesaid documents, this witness has also relied upon the following document:
Handing over memo of gold ornaments of the deceased : Ex. PW6/A This witness was duly cross examined by the learned defence counsel.
13. PW-13 Smt. She is another material prosecution Rani witness of this case being the sister of the deceased.
This witness was duly cross examined by the learned defence counsel.
14. PW-14 Sh. He is another material prosecution FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 13 of 58 Rajesh Singh witness of this case being the uncle of the deceased.
This witness has tendered the following documents during his deposition:
a) identification memo of dead body of the deceased : Ex. PW14/A
b) seizure memo of black colour thread containing four lockets of brass like metal and one locket of OM of the deceased : Ex. PW14/B Apart from tendering the aforesaid documents, this witness has also relied upon the following documents:
a) receipt of dead body of the deceased : Ex. PW3/C This witness was duly cross examined by the learned defence counsel.
15. PW-15 Head He is the formal prosecution witness of Constable Anand this case as some investigation was Singh carried out in his presence.
This witness has relied upon the following documents during his deposition:
a) seizure memo of black colour thread containing four lockets of brass like metal and one locket of OM of the deceased : Ex. PW14/B FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 14 of 58
b) copy of RC No. 20/21/17 : Ex. PX-9
c) copy of FSL acknowledgement : Ex. PX-8 This witness was duly cross examined by the learned defence counsel.
16. PW-16 Ct. Ajay He is the formal prosecution witness of Kumar this case as he got registered the present FIR at Police Station.
This witness was duly cross examined by the learned defence counsel.
17. PW-17 Ct. He is the material prosecution witness Sandeep of this case as substantial investigation was carried out in his presence.
This witness has tendered the following documents during his deposition:
a) seizure memo of plastic container containing gold articles and cash recovered from the accused : Mark PW17/A
b) disclosure statement of accused : Mark PW17/B
c) pointing out memo prepared at the instance of accused : Mark PW17/C
d) seizure memo of stole (short dupatta) which was got recovered by the accused : Mark PW17/D FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 15 of 58
e) seizure memo of cloths of the accused : Mark PW17/E Apart from tendering the aforesaid documents, this witness has also relied upon the following documents:
a) arrest memo of accused : Ex. PW12/A
b) personal search memo of accused : Ex. PW12/B This witness was duly cross examined by the learned defence counsel.
18. PW-18 HC He is the formal prosecution witness of Gyandev Munde this case as he transmitted the copy of FIR to Senior Police Officials as well as to the concerned learned ACMM.
This witness was not cross examined by the learned defence counsel despite being given an opportunity for the same.
19. PW-19 HC He is the formal prosecution witness of Rattan this case as upon the directions of the Investigating Officer, he collected the subsequent opinion and handed over the same to him.
This witness was cross examined by the learned defence counsel.
20. PW-20 SI He is the material prosecution witness Jagroop Singh of this case as substantial investigation was conducted by the Investigating Officer in his presence.
FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 16 of 58 This witness has tendered the following documents during his deposition:
a) seizure memo of cash and gold articles recovered from the accused : Ex. PW20/A
b) disclosure statement of the accused : Ex PW20/B
c) pointing out memo of place of occurrence prepared at the instance of accused : Ex. PW20/C
d) seizure memo of recovered stole : Ex. PW20/D
e) seizure memo of cloths of the accused : Ex. PW20/E Apart from tendering the aforesaid documents, this witness has also relied upon the following documents:
a) arrest memo of accused : Ex. PW12/A
b) personal search memo of accused : Ex. PW12/B This witness was duly cross examined by the learned defence counsel.
21. PW-21 SI Om He is the material prosecution witness Prakash of this case as substantial investigation was carried out in his presence.
FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 17 of 58 This witness has tendered the following documents during his deposition:
a) dead body identification memo of Sh. Babu Lal : Ex. PW21/A Apart from tendering the aforesaid documents, this witness has also relied upon the following documents during his deposition:
a) copy of emergency registration card of the deceased : Ex. PW8/A
b) seizure memo of gold ornaments, which were removed from the dead body of the deceased : Ex. PW6/A
c) dead body identification memo of Sh. Rajesh Singh : Ex. PW14/A
d) seizure memo of black thread and four lockets of the deceased : Ex. PW14/B
e) seizure memo of scalp hair of deceased : Ex. PW11/E
f) seizure memo of plastic box containing viscera of the deceased : Ex. PW11/A
g) seizure memo of parcel containing cloths of the deceased : Ex. PW11/B FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 18 of 58
h) seizure memo of envelope containing nail clippings of the deceased : Ex. PW11/C
i) seizure memo of envelope containing tapping from ligature mark from the neck of the deceased : Ex. PW11/D This witness was duly cross examined by the learned defence counsel.
22. PW-22 Inspector He is the material prosecution witness Malkiat Singh of this case as the entire investigation was carried out by him.
This witness has tendered the following documents during his deposition:
a) endorsement made on the statement of Smt. Moni Devi : Ex. PW22/A
b) site plan prepared at the instance of Smt. Moni Devi : Ex. PW22/B
c) request letter vide which subsequent opinion was obtained : Ex. PW22/D
d) statement under Section 161 Cr. P.C of Master Shubham : Ex. PW22/E
e) supplementary statement of Smt. Rani : Ex. PW22/F FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 19 of 58
f) supplementary statement of Sh.
Rajesh Singh : Ex. PW22/G
g) supplementary statement of Mr. Sonu : Ex. PW22/H
h) supplementary statement of Smt. Shanti Devi : Ex. PW22/I Apart from tendering the aforesaid documents, this witness has also relied upon the following documents:
a) seizure memo of cash and gold ornaments recovered from the accused : Ex. PW20/A
b) arrest memo of accused : Ex. PW12/A
c) personal search memo of accused : Ex. PW12/B
d) disclosure statement of the accused : Ex. PW20/B
e) pointing out memo prepared at the instance of accused : Ex. PW20/C
f) seizure memo of stole : Ex. PW20/D
g) seizure memo of marriage photograph of the deceased with accused : Ex. PW7/A FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 20 of 58
h) marriage photograph of the deceased with accused : Ex. PX-11
i) seizure memo of cloths of the accused : Ex. PW20/E This witness was duly cross examined by the learned defence counsel.
6. On 11.04.2022, the prosecution evidence was closed and matter was notified for recording of statement of the accused under Section 313 Cr. P.C. STATEMENT OF ACCUSED UNDER SECTION 313 Cr. P.C:
7. On 12.09.2022, the statement of the accused under Section 313 Cr. P.C was recorded wherein, the accused stated that he is not willing to lead any evidence in his defence. Therefore, vide order of even date, the defence evidence was closed and matter was notified for final arguments.
APPRECIATION AND EVALUATION OF EVIDENCE, ANALYSIS OF CONTENTIONS AND FINDINGS :
8. I have heard Sh. Shiv Kumar, learned Addl. PP for the State as well as Sh. Pujya Kumar Singh, learned Amicus Curiae for the accused and have also gone through the entire record of the case. I have also considered the evidence adduced by both the sides with case laws relied by them as well as the arguments advanced by both the sides.
FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 21 of 58 ARGUMENTS ON BEHALF OF THE STATE
9. Learned Additional Public Prosecutor has argued that the prosecution has proved its case beyond reasonable doubt against the accused.
9.1. The entire prosecution case is based on the testimonies of eye witness i.e. PW-10 Master Subaham, who was present in the house with the accused and his deceased mother at the time of incident. Apart from this witness, PW-1, PW-7, PW-9, PW-12, PW-13 and PW-14 have also proved that the deceased was living with the accused Durga @ Darga in the same house at the time of the incident.
9.2. It is further argued that there is nothing in the cross examination of eye witness/PW-10 or the other prosecution witnesses which could be said to be sufficient to create a doubt in the prosecution story. Eye witness/PW-10 and aforesaid witnesses have given a true and reliable account how the offence was committed in this case and there is nothing to disbelieve their unflinching and cogent testimony on the issue. 9.3. It is further argued that the evidence of the prosecution witness are so meticulously flawless that it points to only one conclusion that the prosecution has proved its case beyond reasonable doubts. The testimony of PW-10/eye witness as well as PW-9/complainant and other prosecution witnesses are throughout consistence. Learned Addl. PP for the State has read the evidence and important documents to connect the accused with the alleged crime.
9.4. It is further argued that the prosecution has broken the back of this case by examining aforesaid eye witness and other material witnesses and the deposition of these witnesses is FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 22 of 58 duly corroborated with medical evidence. All of them have identified the accused being the real murderer of the deceased Sonia. The postmortem report has clearly established that the deceased was murdered. Motive of the crime has also been proved by the prosecution. It is prayed that as the prosecution has proved its case beyond reasonable doubts therefore, the accused Durga @ Darga deserves to be convicted for the charged offence. 9.5. It is further argued that the cross examination of all the aforesaid star/material prosecution witnesses as well as remaining prosecution witnesses does not reveal anything favourable to the accused. It is also argued that there is nothing in the cross-examination of the eye witness and other material prosecution witnesses which could be said to be sufficient to create a doubt in the story of the prosecution. 9.6. It is further argued that the case has been proved beyond reasonable doubts and the accused deserves to be convicted for the charged offences.
ARGUMENTS ON BEHALF OF THE ACCUSED
10. Per contra, learned defence counsel has focused on the issue relating to the contradictions in the testimonies of eye witness/PW-10 and other material prosecution witnesses, incongruities in the oral evidence and medical report, MLC of the deceased, the witnesses being interested and partisan, no independent witness of the incident and no proper investigation in this case.
10.1. It is argued that there are various contradictions and flaws in the prosecution case and same raise serious doubts in prosecution story and show that prosecution has failed to prove FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 23 of 58 its case beyond reasonable doubts against the accused and benefit of the same must be given to the accused.
10.2. It is also argued that the prosecution witnesses have deposed falsely against the accused being the relatives/family members of the deceased. The prosecution is claiming that Master Shubham, son of deceased is the eye witness of the entire incident, however, this witness made false statement as he was tutored by the sisters, mother and brother of the deceased and his entire testimony is full with contradictions therefore, liable to be rejected. It is therefore, prayed that the accused may kindly be acquitted in this case.
APPRECIATION OF LAW & EVIDENCE
11. Before appreciating evidence, brought on record by the Prosecution, I must mention here the law relating to the appreciation of evidences of the witnesses. Hon'ble Delhi High Court in the case titled as Satish Bombaiya v. State, 1991 JCC 6147 had observed :
"While appreciating the evidence of witness, approach must be whether the evidence of the witness read as a whole appears to have ring of truth. Once that impression is formed then undoubtedly it is necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether earlier evaluation of evidence is shaken as to render it unworthy. Minor discrepancies on trivial matters not touching the core of the case, hyper FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 24 of 58 technical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. The main thing to be seen is, whether those inconsistencies go to the root of the matter or pertained to the insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the inconsistencies in the evidence. In the latter, however no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases".
11.1. So, in the wake of above mentioned law, evidence brought on record, has to be read as a whole and has to be appreciated as whole. Minor discrepancies over trivial matters and hyper technical approach while appreciating evidence, has to be avoided. It has to be seen whether shortcomings highlighted by accused, go to the root of the matter and if it so goes, then in that eventuality only evidence has to be discarded.
PROVE BEYOND REASONABLE DOUBT
12. It is well settled that while in criminal cases, the doctrine of presumption of innocence casts the burden on the prosecution to prove its case against the accused persons beyond reasonable doubt, it is trite that doubt to the guilt of the accused should be substantial and not flimsy or fanciful. Such doubt need not reach certainty, but it must carry high degree of probability. In the case of State of U.P. v. Krishna Gopal (1998) SCC 302, it FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 25 of 58 was observed that "though this standard is higher standard, there is, however, no absolute standard. What degree of probability amounts to-proof is an exercise particular to each case". Quoting from "The Mathematics of Proof - II : Glanville Williams : Criminal Law Review 1979, by Sweet & Maxwell, p. 340 (342), it was observed that :
"The one piece of evidence may confirm the other. 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 person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.
The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice (underlined emphasized)"
FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 26 of 58 12.1. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
12.2. Keeping in mind aforesaid tenet, I am proceeding further and appreciating the evidence, brought on record by prosecution in the light of the testimonies of the prosecution and defence witnesses.
LEGAL PROVISIONS
13. The accused Durga @ Darga has been charged for the offence punishable under Section 302 IPC & 404 IPC because he is stated to have committed murder of deceased Sonia W/o Sh. Sonu by strangulating her throat with a red colour small stole/shawl and also for possession of the jewelery/articles of the deceased.
13.1. Offence of murder is punishable under Section 302 IPC. Offene of murder is defined under section 300 IPC which is as under:
Section 300 IPC states that except in the cases hereinafter excepted, culpable homicide is murder, if the act by which death is caused is done with the intention of causing death, or-
Secondly-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 27 of 58 the person to whom the harm is caused, or-
Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
Fourthly- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
13.2. The offence will be covered under clause (1) of Section 300 IPC if the act by which death is caused, is done with the intention to cause the death of a person. Whether the death was actuated by the intention to cause death is a subjective element and has to be deduced from the objective facts, circumstances and behavior of the accused.
13.3. In this clause, all those cases are covered where the direct intention of the accused is to cause the death of a person.
Inference of such intention can be drawn from the manner in which the death is caused, weapon used, the nature of injury given, the seat of the injury on the human body, the motive and any other relevant circumstances connected with the death of a person. For bringing its case within the ambit of clause (1) of Section 300 IPC, prosecution is required to give strong evidence of a definite, explicit, unambiguous and precise intention of the accused to kill the victim.
FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 28 of 58 APPRECIATION OF EVIDENCE
14. Now to summarize the case of the prosecution, it is alleged that the deceased/victim was married to Mr. Sonu in the year 2002 but said Sonu has expired in the year 2009. Subsequently, deceased Sonia got married in a temple one and half month before her death with the accused Durga @ Darga and they started living together in her rented accommodation. However, there were frequent quarrels between them as the accused was not doing any work. There was quarrel between the accused and deceased in the night of 11.12.2016. The accused came back at 05.00 AM on 12.12.2016 and convinced the deceased to open the door by claiming to have brought potable water (meetha pani). Thereafter, he closed the door from inside and killed the deceased by strangulating her neck. The accused also took away one pair of ear rings (kundal) and three pairs of gold ear rings of the deceased. The incident of committing murder of the deceased Sonia was claimed to be witnessed by her child PW-10 Shubham, who was with the deceased on that night. The quarrel between the accused and deceased on the night of 11.12.2016 was claimed to be witnessed by PW-1 Smt. Asha, PW-7 Smt. Shanti Devi, PW-12 Mr. Sonu, PW-13 Smt. Rani and PW-14 Sh. Rajesh.
14.1. Therefore, the prosecution case against the accused is primarily hinges upon the testimony of the aforesaid eye witness PW-10 Master Shubham and aforesaid prosecution witnesses viz. PW-1 Smt. Asha, PW-7 Smt. Shanti Devi, PW-9 Smt. Moni Devi, PW-12 Mr. Sonu, PW-13 Smt. Rani and PW- 14 Sh. Rajesh.
FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 29 of 58 FINDINGS QUA CAUSE OF DEATH:
MEDICAL EVIDENCE:
15. The first and foremost question is to find out the cause of death of deceased Sonia.
15.1. It is claimed by the prosecution that the deceased Sonia was killed by accused Darga @ Durga by strangulating her neck. In support of its case qua the murder of the deceased, the prosecution has examined PW-4 Dr. Arun Kumar S, who conducted the postmortem over the dead body of the deceased. He has proved the postmortem report Ex. PW4/A, diagram sheet Ex. PW4/B showing the external injuries over the dead body of the deceased and inquest papers Ex. PW4/C submitted by the Investigating Officer before initiation of postmortem of the deceased. This witness has testified the cause of death was asphyxia as a result of ligature strangulation via injury no. 1. All the injuries were ante mortem in nature and fresh in duration. Injury no. 1 was produced by ligature material, injury no. 2 & 3 were possible by nail and injury no. 4 & 5 were possible by blunt force. Injury no. 1 was individually sufficient to cause death in ordinary course of nature. Time since death was about one and half day. The postmortem examination of the deceased was started at 12.20 PM on 13.12.2016 and was concluded at 01.40 PM. He also gave the subsequent opinion no. 7/2017 Ex. PW4/D qua the ligature material to the effect that the ligature mark found on the neck of the deceased was possible by the seized stole (ligature material) provided for examination. Further, FSL Examination Report of Viscera of the deceased was seen by him FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 30 of 58 and no poison/alcohol was detected in the same. Therefore, the cause of death remains the same i.e. asphyxia as a result of ligature strangulation via injury no. 1.
15.2. The deposition of PW-2 Inspector Narender Singh also shows that the strangulation marks were visible on the neck of the deceased when he visited the crime scene. 15.3. The deposition of PW-4 made it clear that the cause of death of deceased was due to asphyxia caused by ligature strangulation via injury no. 1. The deposition of PW-2 also proves the existence of strangulation mark on the neck of the deceased. Therefore, the prosecution has proved that the death of the deceased was caused due to strangulation of her neck and the manner of the death was homicide.
WHO CAUSED DEATH:
16. Now the next question is who caused the death of deceased Sonia.
16.1. It is alleged that the same was caused by the accused Durga @ Darga as he was residing with the deceased in her rented accommodation at the time of her murder. Therefore, the vital question is to find out as to whether the accused was residing with the deceased at the time of her death or was present in her rented accommodation on the night of her murder.
16.2. To prove the same, the prosecution has examined Master Shubham as PW-10, claiming him to be the eye witness of the incident and also PW-1 Smt. Asha, PW-7 Smt. Shanti, PW-9 Smt. Moni, PW-12 Mr. Sonu, PW-13 Smt. Rani and PW-14 Sh. Rajesh. PW-1, PW-7 & PW-13 are the sisters of the FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 31 of 58 deceased whereas, PW-9 is her mother, PW-12 is her brother and PW-14 is her uncle. All these witnesses have deposed that the accused was residing with the deceased in her rented accommodation. Deceased Sonia was married to Mr. Sonu, but he had expired in the year 2009. Deceased was having three children from her husband Sonu. Accused Durga @ Darga got married with deceased Sonia in a temple few days before her murder. They were residing together in the rented accommodation of deceased Sonia, however, there were frequent quarrels between them because accused Durga @ Darga was not earning anything but he used to extend threats to the deceased. Accused was demanding money from deceased Sonia, who told about the same to her sister PW-7 Smt. Shanti. Deceased also gave the safe custody of her small jewelery to PW-7 due to the fear of the accused. She was also keeping her money with PW-7. Even on 11.12.2016, PW-7 Smt. Shanti Devi visited the house of deceased Sonia at 10.00 PM and remained there for about 10 minutes and witnessed the quarrel between deceased and accused Durga @ Darga. She tried to pacify both of them. Her deceased sister Sonia asked her to get accused out from her house but she tried to make deceased understand and to continue with the marriage peacefully. Deceased also told her that the accused Durga @ Darga was threatening her. She left after making efforts for pacifying them. Next day her sister Asha PW-1 informed her about the death of the deceased and she immediately rushed to the house of deceased Sonia and took her to the nearby hospital, but she was declared dead.
16.3. Similarly, PW-1, PW-7, PW-9, PW-12 & PW-14 have also deposed that at the time of the death of deceased, FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 32 of 58 accused Durga @ Darga was residing with deceased in her rented accommodation. They have also deposed about the factum of marriage in a temple between the accused and deceased and that both of them were residing as husband and wife.
16.4. The deposition of all these witnesses viz. PW-1, PW- 7, PW-9, PW-12, PW-13 and PW-14 is also corroborated from the deposition of PW-10 Master Shubham who has categorically deposed that the accused Darga had killed his mother by strangulating her neck. Accused had made his mother lie on the floor near gas stove and went away. Accused had come earlier in the night. Accused did not allow him to go to his Nani's house. The accused used to come their house daily. Accused had also come earlier in the night. His mother Sonia had married Darga and he used to call him "Baap". The witness/PW-10 had also identified the accused during his deposition in the Court. 16.5. Therefore, it is proved from the deposition of aforesaid witnesses that accused Durga @ Darga was residing with the deceased in her rented accommodation at the time of her death and he was present with the deceased in her rented accommodation on the night of her death.
CULPABILITY OF ACCUSED, WHETHER PROVED:
17. Now, the most important question is whether the accused had caused the murder of the deceased Sonia.
17.1. In order to prove the same, the prosecution has examined Master Shubham as PW-10 claiming him to be the eye witness of the incident. The prosecution has also examined PW-1 FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 33 of 58 Smt. Asha, PW-7 Smt. Shanti Devi, PW-12 Sh. Sonu, PW-13 Smt. Rani and PW-14 Sh. Rajesh claiming them to be eye witness of the frequent quarrels between the accused and deceased. It is also claimed that these witnesses had visited the house of deceased immediately before her death on the night of 11.12.2016. PW-1, PW-7 and PW-13 have also pacified the deceased and the accused and made efforts to convince the deceased to continue her marriage with the accused. 17.2. Therefore, all of them are the star prosecution witnesses and linchpin of the Prosecution case being the eyewitnesses of the frequent quarrels etc., between the accused and the deceased and PW-10 being the eyewitness of the main offence.
EYE WITNESS/OCULAR EVIDENCE:
18. Eyewitness play an important role in the criminal justice system. The quality of evidence of an eyewitness depends on many factors prominent among them are his view in which the crime is committed, his confidence with respect to the accuracy of the description of the crime and identification of the accused and his description, the amount of attention the witness paid to the crime during its occurrence, the probability of the witness being present at the place of accident, the accuracy and probability of what he is defining etc. 18.1. A witness that saw the happening of the accident being inquired by the court is an eyewitness. Reliable evidence of eyewitnesses cannot be disregarded in the absence of strong reasons. Conviction can be based upon the testimony of sole eyewitness if the same is found wholly reliable. In case, if his FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 34 of 58 testimony is not found to be wholly reliable, the court may insist upon some independent corroboration.
18.2. The law relating to the appreciation of evidence of eyewitnesses is completely settled that generally the testimony of eyewitness of the accident is considered credible unless and until it is specifically shown or proved to have a taint for any reason on which it is assailed. Generally, the courts tend to believe what the eyewitnesses depose in the court and it is only when there exists grave and material discrepancies and contradictions in their statements which compels the court to think and doubt that whether the eyewitness is giving a truthful account, it can come in the domain of suspicion. When the tenacity and doggedness of the eyewitness is suspicious, when the truthfulness of the testimony of the eyewitness is shrouded in grave clouds of suspicion and falsity, the court may disbelieve that witness or may look for such corroboration of his evidence which are capable of removing the blemish from his evidence. Reliance is placed upon Vadivelu Thevar v. The State of Madras, A.I.R. (1957) S.C. 614, Rammi alias Rameshwar v. State of Madhya Pradesh AIR 1999 SC 256, Ramesh 2004 Cri LJ 70 (Mad); Sunil Kumar 2004 Cri LJ 819 (SC): AIR 2004 SC 552: (2003) 4 Crimes 382 (SC): (2003) 11 SCC 367; Chittar Lal (2003) 6 SCC 397; Chanan Ram 1999 (10) JT 389 (SC); State v Dhirendra Kumar (1997) 1 SCC 93: AIR 1997 SC 318: (1996) 10 JT 93: (1996) 4 Crimes 195 (SC).
19. Applying the witness credibility test laid down in the aforesaid case laws by the Hon'ble Apex Court, it is revealed that the case of the prosecution is based primarily on the FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 35 of 58 evidence of eye witness i.e. PW-10 and PW-1 Smt. Asha, PW-7 Smt. Shanti Devi, PW-9 Smt. Moni Devi, PW-12 Sh. Sonu, PW- 13 Smt. Rani and PW-14 Sh. Rajesh. All of them are stated to be closely related to the deceased. PW-10 Master Shubham was stated to be present in the rented accommodation of the deceased when the accused strangulated her neck and committed her murder.
19.1. Although, PW-10 Master Shubham is claimed to be the eye witness of the offence allegedly committed at 05.00 AM on 12.12.2016 and his deposition was recorded without oath on 30.11.2017 when he was approximately 07 years old. Therefore, the testimony of PW-10 eye witness Master Shubham is required to be appreciated by keeping in mind the standards laid down by the Hon'ble Apex Court for appreciating the testimony of child witness.
CREDIBILITY OF A CHILD WITNESS
20. The first issue is now been taken up for discussion. Ld. Defence Counsel had pleaded that the child witness was not reliable for reasons already mentioned above. This calls for revisiting the law on the competency of the child witness. In a matter before the Supreme Court of Washington titled as 'State V. Allen, 70 Wn.2d 690, 424 P.2d 1021 (1967)' when an appeal was preferred by a convict of crime of taking indecent liberties of a 6 year old female child, the Court observed that:
"....The true test of competency of a young child as witness consists of the following:-
FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 36 of 58 (1) an understanding of the obligation to speak the truth on the witness stand;
(2) the mental capacity at the time of the occurrence concerning which he is to testify;
(3) a memory sufficient to retain an
independent recollection of the
occurrence;
(4) the capacity of express in words his
memory of the occurrence; and
(5) the capacity to understand simple
question about it...."
21.1. Further, in Dattu Ramrao Sakhare Vs. State of Maharashtra (1997) S SSC 341, it has been held as under:-
"...A child witness is found competent to depose in the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored."
It has been further been held as under:-
"...The decision on the questions whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession of lack of FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 37 of 58 intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an Oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-
believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness".
21.2. In Mangu Vs. State of Madhya Pradesh AIR 1995 SC 959, the Apex Court has made the following observations:-
" the Court must Determine as to whether the child has been tutored or not. It can be ascertain by examining the evidence and on the contents thereof as to whether there are any trace of tutoring"
21.3. Keeping the above pronouncements in mind it can be reiterated that law is no longer res-integra with respect to the testimony of child witness. It is clear that reliance can be placed upon the testimony of child victim/witness even if the same is without oath, if the court finds that the testimony is otherwise cogent, trustworthy and inspires the confidence of the court. It is settled proportion of law that the quality and not the quantity of testimonies which has to be looked for. Conviction FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 38 of 58 can be based upon the testimony of a sole witness as well, provided it is unimpeachable and of sterling quality. 21.4. Considering the aforesaid dictum of law, when the testimony of PW-10 Master Shubham is considered, it is claimed that he was with the deceased at the time of her alleged murder by the accused. He is the star prosecution witness being the sole eye witness of the alleged offence of murder of the deceased. Thus, much of the prosecution's case rest upon his testimony. The alleged offence was committed on 12.12.2016 at about 05.00 AM in the rented accommodation of the deceased. The deposition of PW-10 Master Shubham was recorded without oath on 30.11.2017 wherein, he disclosed his age to be 07 years. Therefore, at the time of commission of the alleged offence before him, he was approximately 06 years old. The testimony of PW-10 Master Shubham recorded on 30.11.2017 shows that before recording the testimony of this witness, learned Predecessor Court had taken the requisite precautions, necessary for recording the testimony of a child witness. The mental capacity of the witness was ascertained by putting various questions to ensure that he is capable of making rational statement. The witness was found to be confident, relaxed, comfortable and intelligent. He was also found to be capable of understanding questions and giving rational answers to the said questions.
21.5. PW-10 Master Shubham in his deposition has deposed that his father had already expired. They are three brothers. Darga strangulated the neck of his mother Sonia with the help of cable wire. He had also given fist blow on his back. Darga used to reside in a temple and used to come to their house FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 39 of 58 daily. Darga did not allow him to go to his Nani's house as the witness wanted to go to his Nani's house through stairs. Darga had made his mother lie on the floor near gas stove. Thereafter, Darga went away. Darga had also come earlier in the night. His mother Sonia had married Darga and he used to call him "Baap". He can identify Darga. He has identified the accused during his deposition stating that accused Darga is the same person, to whom he used to call "Baap".
21.6. This witness was cross examined at length by the learned defence counsel wherein, it is testified by him that when Darga strangulating the neck of his mother Sonia, his two brothers Suresh and Jogia were also there, but both of them were sleeping whereas, he was awake and had seen the accused. His statement was also recorded by the police during investigation. The police also came to the place of incident and police uncle questioned him at that time and he told them about the incident. No inquiry was made from Suresh & Jogia because only he knew about the incident. He had denied the suggestion that he did not tell anything about the incident to the police. He has also denied the suggestion that the incident was not witnessed by him. It is further deposed that the police uncle had arrived three times at his house on the day of incident. He has also denied that he made wrong statement due to continuous tutoring by his "Mausi" and "Nani".
21.7. When the testimony of PW-10 Master Shubham is analyzed in the light of aforementioned mandate of law, his cross examination does not elicited any response, which either show that the child did not have the mental capacity at the time of commission of offence to obtain an accurate impression on him, FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 40 of 58 or a memory sufficient to independently recollect, express it in words and comprehend questions regarding it. The witness has consistently elucidated what the accused did to his deceased mother and how the accused committed the alleged offence. He has not been traversed on material aspects of the ingredients of the offence. His testimony before the Court as PW-10 is contemporaneous to the alleged offence and is consistent on all material aspects that constitute the offence. 21.8. The testimony of this witness/PW-10 is also corroborated from the medical examination/postmortem report Ex. PW4/A, diagram sheet Ex. PW4/B showing the external injury on the dead body of the deceased, inquest papers Ex. PW4/C and subsequent opinion Ex. PW4/D. The deposition of PW-4 Dr. Arun Kumar S who conducted the postmortem of the deceased Sonia, also corroborates the testimony of PW-10 Master Shubham as PW-4 has deposed that the time since death of the deceased was about one and half day and the cause of death was asphysia as a result of ligature, strangulation via injury no. 1. All the injuries were ante mortem in nature and fresh in duration. Injury no. 1 was produced by ligature material, injury no. 2 & 3 were possible by nail and injury no. 4 & 5 were possible by blunt force. Injury no. 1 was individually sufficient to cause death in the ordinary course of nature. However, viscera was preserved to rule out concomitant poisoning and alcohol intoxication. The viscera examination report shows that no poison/alcohol was detected, therefore, his opinion regarding the cause of death remains the same as mentioned by him in his postmortem report Ex. PW4/A. It is also deposed by PW-4 that the ligature material was produced before him for his subsequent opinion and he gave FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 41 of 58 subsequent opinion no. 7/2017 Ex. PW4/D that the ligature mark found on the neck of deceased was possible by the seized stole (ligature material), provided for the examination. 21.9. This witness/PW-4 in his cross examination has clarified that the time since death had been calculated by him on the basis of postmortem changes mentioned in column 06 of Ex. PW4/A, correlated with the brief history as per the hospital record. Hypothesis starts after about half an hour of death and continues till the appearance of decomposition. Decomposition of the dead body depends upon the climate conditions and other factors in which the dead body lies. Time since death given by him was in approximation which can be 06 hours on either side. 21.10. The deposition of PW-10 Master Shubham is materially substantiated from the deposition of PW-4 Dr. Arun Kumar S which shows that the deceased was having strangulation mark on her neck and PW-10 has also deposed that the accused Darga had strangulated the neck of his mother Sonia. The accused Darga had been correctly identified by PW-10 during his deposition in the Court stating that he used to call accused "Baap" and the accused Darga is the same person to whom he used to call "Baap". His deposition also shows the presence of the accused in the rented accommodation of the deceased at the time of commission of the offence. The deposition of PW-1, PW-7, PW-9, PW-12, PW-13 and PW-14 also shows the existence of frequent quarrels between the accused and deceased. Deposition of PW-1 also shows that when she went to the house of her sister Sonia, she saw that the deceased was lying on the ground near gas chullah and her son Master Shubham aged about 06 years, was playing on her FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 42 of 58 body (bacha apni maa ke uper khel raha tha). He also told her that his mother has been killed by Darga. Testimony of PW-7 Smt. Shanti shows that child Shubham/PW-10 has also informed her that accused Darga had come to his house in the night and had killed his mother. PW-9 & PW-13 have also deposed on the similar lines.
21.11. This shows that the deposition of PW-10 Master Shubham cannot be said to be the outcomes of any tutoring by mother and sisters of the deceased or by any other persons because the same is not only substantiated from the deposition of PW-4 Dr. Arun Kumar S but also substantiated from the deposition of PW-1, PW-7, PW-9 and PW-13. Therefore, there is no substance in the argument that the deposition of PW-10 is not corroborated from the deposition of prosecution witnesses or that the same is full with contradictions or the result of any tutoring. Reliance is also placed upon the judicial pronouncement of the Hon'ble Apex Courts in case titled State of Himachal Pradesh v. Lekh Raj & Anr., 1999 (9) Supreme Today 155. 21.12. The discrepancies in the deposition of material prosecution witnesses viz. PW-1, PW-7, PW-9, PW-12, PW-13 and PW-14 and PW-10 are required to be ignored being minor discrepancies and not touching the core of the prosecution case. Therefore, the learned defence counsel has not been able to convince this Court that the testimonies of PW-10 Master Shubham and other prosecution witnesses are not reliable or untrustworthy. In the light of the aforesaid findings, it can be said that the prosecution has proved that the deceased Sonia was killed by the accused Durga @ Darga.
FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 43 of 58 MOTIVE BEHIND CRIME:
22. Now the next vital question arises as to why the accused had killed deceased Sonia and what was the motive for committing her murder.
22.1. It is well settled that clear proof of motive lends additional support to find guilt of the accused. This necessitates the analysis of testimonies of PW-1 Smt. Asha, PW-7 Smt. Shanti Devi, PW-9 Smt. Moni Devi, PW-12 Sh. Sonu, PW-13 Smt. Rani and PW-14 Sh. Rajesh, who are the sisters, brother, mother and uncle of the deceased. The deposition of these witnesses shows that deceased Sonia was married to Mr. Sonu however, said Sonu expired in the year 2009. Deceased was having three children from her husband Sonu. Deceased Sonia married accused Darga in a temple and they were living together as husband and wife in the rented accommodation of deceased Sonia. However, there were frequent quarrels between them because accused Darga was not earning anything and he used to extend threats to the deceased. He was also demanding money from deceased Sonia, who told about the same to her sister PW-7 Smt. Shanti Devi. Deceased also handed over the custody of her small jewelery to PW-7 due to the fear of the accused. She also used to keep her money in safe custody with PW-7. Even on 11.12.2016, PW-7 Smt. Shanti Devi visited the house of deceased Sonia at 10.00 PM and remained there for about 10 minutes and found that a quarrel was going on between deceased and the accused Darga. She tried to pacify both of them. Her sister Sonia asked her to get Darga out of her house, but she tried to make her understand and to continue with the marriage peacefully. Deceased Sonia also told her that Darga was threatening her. She FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 44 of 58 left after making efforts for pacifying her sister Sonia (now deceased), at that time also, her sister Sonia was requesting her to take her to her house, but PW-7 stated that she may come to her house in the morning as it was the night time. Subsequently, in the morning her sister Asha/PW-1 came crying to her house and told her that Sonia was lying on the ground and something has happened to her. She immediately rushed to Sonia and her brother Sonu along with husband of PW-1 Asha took Sonia to the nearby hospital. However, her sister Sonia was declared dead. PW-10 Master Shubham informed her that accused Darga had come to his house in the night and killed his mother Sonia. He further informed that accused had also given fist blow to PW-10 Master Shubham.
22.2. PW-1 Smt. Asha is also the sister of deceased Sonia. She has also deposed about the marriage of deceased Sonia with accused Darga and also that accused and deceased Sonia were living as husband and wife in the rented accommodation of deceased Sonia. The existence of frequent quarrels/disputes between the accused and deceased is also deposed by PW-1. It is further deposed by PW-1 that her deceased sister was not happy for sometime and had stopped taking food and started to remain quite. Deceased Sonia had also stated to her that she was fearing for her life from the accused and had asked her elder sister Smt. Shanti to keep her salary because she had no faith in the accused. Sonia had also handed over her ear rings (tops) to her sister Smt. Shanti. On the day of the incident, PW-1 after taking her dinner had gone to the house of deceased Sonia and found that a quarrel was taking place between them (un dono me behas ho rahi thi). Her sister Sonia FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 45 of 58 was saying that the accused was not doing any work and she is looking the children with difficulty. PW-1 tried to pacify the dispute and asked them to leave peacefully for sometime. During altercation, accused had also threatened to kill her sister. As the quarrel between the accused and her sister had not come to an end, therefore, she asked the accused to go to Mandir and to sleep there. The accused left for the Mandir at 10.00 PM and thereafter, she also went to her home. In the morning at about 07.00 AM, she went to the house of her mother and thereafter to the house of Sonia and saw that the door of her house was not closed from inside. On pushing the door, it got opened and she saw that her sister Sonia was lying on the ground near gas chullah and her son aged about 06 years was playing on her body (bacha apni maa ke uper khel raha tha). He told her that his mother was killed by Darga. She went inside the room and overturned her sister to see her face. Her lips had turned black and there was no sign of life. She started shouting and her husband also came there. She made hue and cry after seeing her sister dead and took her with the help of her relative to Patel Hospital, but Sonia was declared dead by the Medical Officer. Police came at the hospital and made inquiry from her and her sister and also conducted the investigation. 22.3. This witness/PW-1 has also clarified that the incident had taken in the intervening night of 11/12.12.2016 and her statement was recorded by the Investigating Officer on 12.12.2016. It is also deposed that when the accused was saying that he will kill her sister Sonia, her said sister was saying that "tu aise kaise maar dega". Her sister Smt. Shanti/PW-7 also reached on the spot and started pacifying the accused and her FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 46 of 58 deceased sister Sonia. The accused had left the place very angrily saying that he will kill Sonia and the police cannot do anything much, but can only send me to Jail. She went to the house of deceased Sonia at 09.45 AM. The youngest child of deceased Sonia is Shubham aged about 6-7 years and he told her that his mother was not getting up. She saw that Sonia was lying dead on the ground. Tops, ear rings and nose pin of the deceased worn by her prior to her death, were also found missing. The same were identified by this witness during her deposition and exhibited as Ex. P-1 (Colly).
22.4. During cross examination, PW-1 has although admitted that she had not told the police or to SDM that her sister (deceased) stooped taking food and started remaining silent and has asked her elder sister Smt. Shanti to keep her salary because she had no faith in her husband/accused or that she had also handed over earrings (tops) to Smt. Shanti, however, the witness/PW-1 has also explained the reasons for not deposing the same to the police or to SDM. It is explained by PW-1 that she was under grief due to demise of her sister at the time of recording of her statement. She has denied that the aforesaid facts were not disclosed due to reason that no such thing happened. She had further deposed that she do not know any person namely Azam Khan @ Raju and had denied the suggestion that deceased Sonia had married with Azam Khan @ Raju or that the said Azam Khan @ Raju went to Bihar and Sonia got married to accused Darga. She had also denied the suggestion that when Azam Khan @ Raju returned to Delhi from Bihar and found accused Darga and Sonia (now deceased) living together due to which, a quarrel had taken place between them. She has also FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 47 of 58 denied the suggestion that said Azam Khan @ Raju threatened the accused due to which, accused left Sonia's house 2-3 days prior to the incident. She has also denied the suggestion that the accused Darga was living in a temple at the time of incident. 22.5. Similarly, PW-9 Smt. Moni Devi, mother of the deceased had also deposed about the existence of frequent quarrels between Sonia and accused Darga as he was not doing anything and whenever her daughter asked the accused to go for work, he used to indulge in quarrel with Sonia. She went to the house of deceased Sonia after hearing the cries of her daughter Asha and found that her daughter Sonia was lying on the ground and her son Shubham was over her, who told her that accused Darga had come to their house and killed Sonia. Deceased Sonia was taken to the hospital by her both daughters viz. Asha and Shanti. She was shocked after seeing the condition of Sonia and was not in a position to say anything. Her statement Ex. PW3/A was recorded on the same day. She had also pleaded her ignorance regarding Azam Khan @ Raju. She had denied that her nati Shubham had not told her anything about the murder of Sonia by the accused.
22.6. Similarly, PW-12 & PW-14 also deposed about the existence of frequent quarrels between the accused and deceased Sonia. They have also witnessed the quarrel between them on the night of 11.12.2016. PW-14 Sh. Rajesh has deposed that the accused had threated to kill the deceased by saying that "jyada bolegi to jaan se maar dunga".
22.7. It is argued that all these witnesses are the interested witnesses being the family members of the FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 48 of 58 deceased. Therefore, their deposition cannot be relied for convicting the accused.
INTERESTED WITNESSES/CLOSE RELATIONS:
23. In Darya Singh and others vs State of Punjab, (1964) 3 SCR 397, Hon'ble Supreme Court upheld the conviction of the appellant in a murder case based on the testimony of eye witnesses who were near relatives and observed that there can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. But a person may be interested in the victim, being his relation or otherwise, and may not necessarily be hostile to the accused. In that case, it was held that the fact that the witness was related to the victim or was his friend, may not necessarily introduce any infirmity in his evidence.
23.1. Where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that naturally makes it necessary for the criminal court to examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. In dealing with such evidence, courts naturally begin with the enquiry as to whether the said witnesses were chance witnesses or whether they were really present on the scene of the offence. If the criminal Court is satisfied that the witness who is related to the victim was not a chance-witness, then his evidence has to be examined from the point of view of probabilities and the account FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 49 of 58 given by him as to the assault has to be carefully scrutinised. In doing so, it may be relevant to remember that though the witness is hostile to the assailant, it is not likely that he would deliberately omit to name the real assailant and substitute in his place the name of enemy of the family out of malice. 23.2. The desire to punish the victim would be so powerful in his mind that he would unhesitatingly name the real assailant and would not think of substituting in his place the enemy of the family though he was not concerned with the assault. It is not improbable that in giving evidence, such a witness may name the real assailant and may add other persons out of malice and enmity and that is a factor which has to be borne in mind in appreciating the evidence of interested witnesses.
23.3. On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars.
23.4. Admittedly all these prosecution witnesses are the family members of deceased Sonia, but they never raised any question regarding the marriage of accused and deceased. They were also living in the same vicinity to the rented accommodation of deceased Sonia where, she was residing with the accused. They also tried to pacify the frequent quarrels between the accused and deceased. PW-7 Smt. Shanti Devi sister of the deceased also tried to convince the deceased to continue with her marriage with the accused despite the existence FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 50 of 58 of frequent quarrels between them. This shows that all the above witnesses were making efforts towards a happy married life between the accused and deceased and they were interested in welfare of the accused as well as deceased. Therefore, they cannot be said to the interested in the false implication of the accused because they also wanted continuity in the married life of the accused. Moreover, they are residing in the vicinity of the accused and deceased, therefore, they will be the natural witnesses regarding the happening of frequent quarrels between the accused and deceased.
23.5. Apart from it, these witnesses viz. PW-1, PW-7, PW-9, PW-12 & PW-14 were cross examined at length by the learned defence counsel on various material aspects. The accused had taken a defence during cross examination of PW-1 that deceased Sonia had married with Azam Khan @ Raju and the said Azam Khan @ Raju went to Bihar for sometime, in the meantime, deceased got married to accused Darga. It is also put to PW-1 that a quarrel had taken place between deceased Sonia and the said Azam Khan @ Raju when he returned to Delhi from Bihar and found that the accused Darga and deceased Sonia were living together. It was also put to PW-1 that said Azam Khan @ Raju had threatened the accused due to which, the accused had left the house of deceased Sonia 2-3 days prior to the incident. However, this witness/PW-1 had categorically denied all these suggestions. She had also denied the suggestion that the accused used to ply his rickshaw with rickshaw puller Bansa Ram. This shows that during the cross examination of PW-1, the accused for proving his innocence has claimed that he has left the house of deceased 2-3 days before the incident due to the threats extended FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 51 of 58 to him by Azam Khan @ Raju with whom, the deceased Sonia had married before starting living with him. However, PW-1 has refuted the aforesaid claim of the accused. Further no such question was put by the accused/his learned counsel to the remaining prosecution witnesses. Further, no effort was ever made by the accused to examine the said Azam Khan @ Raju to show that the quarrel had actually taken place between the deceased and the said Azam Khan @ Raju or that the deceased Sonia before marrying him, had also married with said Azam Khan @ Raju. The accused has also not examined rickshaw puller Sh. Bansa Ram in support of his aforesaid claim.
23.6. This shows that despite lengthy cross examination of the aforesaid material prosecution witnesses nothing substantially favoring to the accused could be brought on record. They have withstood the test of cross examination and the learned defence counsel has failed to bring anything on record from their cross examination for demolishing their testimonies. Therefore, all these witnesses are the natural witnesses and they have also proved the existence of frequent quarrels between accused Darga and deceased Sonia with whom, the accused was residing as husband and wife in her rented accommodation. The factum of quarrel between the accused and deceased and the threats given by the accused to the deceased on the night of 11.12.2016 are also proved from their deposition. The deposition of PW-1, PW-7 and PW-9 has also proved that PW-10 Master Shubham son of deceased Sonia had witnessed the commission of the offence by the accused and had informed them about the same when they visited the house of deceased Sonia and found her dead.
FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 52 of 58 Therefore, it cannot be said that these witnesses have deposed against the accused only being the family members of the deceased. Thus it can be said that the prosecution has proved the motive of the accused for committing the murder of deceased Sonia.
PRIOR AND SUBSEQUENT CONDUCT OF THE ACCUSED:
24. The deposition of material prosecution witnesses viz. PW-1, PW-7, PW-9, PW-12, PW-13 & PW-14 establishes the existence of frequent quarrels between the accused and the deceased Sonia. Their testimony also establishes the extension of life threats by the accused to the deceased in the presence of the aforesaid witnesses.
24.1. This shows that relations between the accused and the deceased were not cordial and it also shows his conduct prior to the offence which would have prompted him to commit the crime. The deposition of aforesaid material prosecution witnesses as well as the deposition of Investigating Witnesses viz. SI Jagroop Singh, Inspector Malkiat Singh and Head Constable Sandeep shows that the accused remains untraceable since the detection of the death of deceased Sonia by her family members in the morning of 12.12.2016 till his arrest from Daya Basti Railway Station at 06.30 PM on 13.12.2016. 24.2. It also shows that extensive search for the accused was made by the Investigating Officer and the police officials also visited Sarai Rohilla Railway Station for tracing the accused, but he remained untraceable. Subsequently, on 13.12.2016 he FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 53 of 58 was arrested upon the identification of PW-12 Sh. Sonu from Daya Basti Railway Station vide arrest memo Ex. PW12/A. 24.3. This also shows that subsequent to the commission of offence, the accused was found at Daya Basti Railway Station whereas, he was claiming himself to be living in a temple near to his residence. This shows that the accused was making an attempt to escape from Delhi but he was apprehended by the Investigating Officer from Daya Basti Railway Station vide arrest memo Ex. PW12/A. 24.4. The deposition of all the material prosecution witnesses remains unimpeached and learned defence counsel has failed to bring anything on record from their cross examination for demolishing their testimonies. The accused has also failed to give any explanation regarding his presence at Daya Basti Railway Station. He never explained the same either in his statement recorded under Section 313 Cr. P.C or by examining any witness in his defence. This also lends credence to the prosecution case that the accused had committed the murder of deceased Sonia and after committing the offence, he was trying to escape from Delhi.
FINDINGS QUA OFFENCE UNDER SECTION 404 IPC:
25. In the present case, the accused has also been charged for committing the offence punishable under Section 404 IPC.
25.1. It is claimed by the prosecution that after committing the murder of the deceased Sonia, accused also took away her money and various jewelery articles and at the time of his arrest, he was found in possession of cash amount of Rs.
FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 54 of 58 170/-, one pair of tops of golden colour, one golden colour nose pin and three pairs of gold earing of the deceased. 25.2. The offence of committing dishonest misappropriation qua the properties possessed by the deceased person at the time of his death is made punishable under Section 404 IPC.
25.3. The sine qua non for holding a person guilty for committing the said offence is the knowledge of said person about the possession of the said property by the deceased at the time of death is essential. Therefore, the prosecution apart from proving the dishonest misappropriation and conversion of the properties of the deceased by the accused is also required to prove that the said properties were possessed by the deceased at the time of her death and despite his aforesaid specific knowledge, the accused opted to dishonestly misappropriate the same or the accused opted to convert the same for his own use. 25.4. It is claimed that the accused Durga @ Darga was found in possession of cash amount of Rs. 170/-, one pair of tops of golden colour, one golden colour nose pin and three pairs of gold earing of the deceased. To prove the same, prosecution has examined PW-1 Smt. Asha Devi, PW-9 Smt. Moni Devi, PW- 17 Constable Sandeep, PW-20 SI Jagroop Singh and PW-22 Investigating Officer Inspector Malkiat Singh. PW-1 during his deposition has deposed that on the night of 11.12.2016, the deceased was wearing her jewelery but her said jewelery was found missing when she saw her dead body in the morning of 12.12.2016.
25.5. PW-9 has also deposed that the deceased Sonia used to wear small jewelery during her lifetime, but the jewelery worn FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 55 of 58 by her was found missing from her dead body. Both these witnesses viz. PW-8 & PW-9 during their deposition in the Court have also identified the case property of the deceased allegedly recovered from the accused and seized vide seizure memo Ex. PW20/A. This seizure memo was prepared by the Investigating Officer/PW-22 and witnessed by PW-20 SI Jagroop Singh. However, non-witnessing of the seizure memo Ex. PW20/A by PW-12 Mr. Sonu, brother of the deceased raises doubts regarding its veracity because the accused Durga @ Darga was arrested on 13.12.2016 from Dayabasti Railway Station vide arrest memo Ex. PW12/A. This arrest memo is also prepared by the Investigating Officer/PW-22 and witnessed not only by PW- 20 SI Jagroop Singh but also by PW-12 Mr. Sonu. Similar is the case with the personal search memo Ex. PW12/B which is also prepared by the Investigating Officer/PW-22 and witnessed by both the aforesaid witnesses because the accused was arrested in the presence of both the aforesaid witnesses. Therefore, PW-12 Mr. Sonu would have been the best witness to verify that the recovered articles (if any) belongs to his deceased sister Sonia. He would have been the best person to identify those articles. The charge sheet also claims that the said articles were identified by PW-12, however, PW-12 is not made witness to the seizure memo Ex. PW20/A. 25.6. The reasons for the same are explained by PW-12 Mr. Sonu in his testimony before the Court wherein, it is admitted by him that no jewelery of his sister was recovered from the accused Darga by the police in his presence and the police told him about the recovery of the said jewelery articles. According to the prosecution case, this witness/PW-12 FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 56 of 58 was present at the time of arrest of accused as well as personal search of the accused, but the personal search memo Ex. PW12/B also shows that nothing was recovered from the possession of the accused at the time of his arrest. The same casts a huge shadow upon the veracity of seizure memo Ex. PW20/A and also about the recovery of the aforesaid articles of the deceased from the possession of the accused. 25.7. Further, deposition of PW-2 Inspector Narender Singh shows that he visited the crime scene being the Incharge of Mobile Crime Team and found visible strangulation marks on the neck of the deceased. He prepared the crime scene report Ex. PW2/A and column no. 13 of the said report meant for containing the details of stolen property, but this column was left blank by PW-2 at the time of preparation of his report. It is admitted by him at that the time of preparation of crime scene report Ex. PW2/A no details of stolen property has come into his knowledge, therefore, due to this reason column no. 13 of crime scene report Ex. PW2/A was left blank by him. This also substantiates that nothing was actually found stolen from the house or from the body of the deceased. Therefore, considering the aforesaid findings, it can be safely concluded that the prosecution has failed to prove the charge of the offence punishable under Section 404 IPC against the accused.
CONCLUSION:
26. In view of the aforesaid findings, it can be said the prosecution has proved its case beyond reasonable doubts for the offence punishable under Section 302 IPC against the accused Durga @ Darga. Therefore, accused Durga @ Darga S/o Sh.
FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 57 of 58 Shankar Lal is convicted for the charge of the offence punishable under Section 302 IPC.
26.1. However, the prosecution has failed to prove the charge of the offence punishable under Section 404 IPC against the accused. Accordingly, the accused Durga @ Darga S/o Sh. Shankar Lal is given benefit of doubt and is accordingly acquitted of the charge of the offence punishable under Section 404 IPC.
27. Let the convict be heard on the quantum of the sentence on the NDOH.
28. Copy of this order be supplied to the convict free of cost.
Announced in the open court on 30th day of November, 2023 (Sunil Kumar Sharma) Additional Sessions Judge-09 West:THC:Delhi:30.11.2023 CERTIFICATE:
It is certified that this judgment contains 58 pages and each page has been signed by me.
(Sunil Kumar Sharma) Additional Sessions Judge-09 West:THC:Delhi:30.11.2023 FIR No : 542/2016, SC No. 196/2017 PS : Anand Parbat State Vs. Durga @ Darga Page No. 58 of 58