Delhi District Court
State vs . Ram Palat S/O Sh. Hari Ram, R/O H.No. ... on 5 November, 2009
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IN THE COURT Ms. SUNITA GUPTA : DISTRICT JUDGEVII/NECUM
ADDITIONAL SESSIONS JUDGE : KARKARDOOMA COURTS : DELHI :
S.C. No. 10/09
State Vs. Ram Palat S/o Sh. Hari Ram, R/o H.No. 456, Gali No.16,
Ganga Sahai Colony, Budh Vihar, Mandoli, Delhi.
FIR No. 426/08
PS Nand Nagri
U/s 302 IPC.
J U D G E M E N T : Ram Palat was a driver by profession. He used to drive phatphat seva to earn livelihood for his family, consisting of his wife and five children. Since his income was meager, he hardly could serve his family hand to mouth. His wife Urmilla wanted to join a job, so that they could make their lives a little bit comfortable. Ram Palat was not willing to permit her to join the job. There used to be altercations between Urmila and accused. On 15.09.08 at about 2pm, Urmila asked Ram Palat whether she can join the job, at that juncture he lost his cool, lifted a club and started assaulting Urmila over her head. She sustained injuries and started bleeding. Jagriti raised an alarm for help. She informed Sanjay Kumar on telephone about the incident. Sanjay Kumar reached there. PCR van was called and Urmila was removed to GTB Hospital. On the way, Urmila told Sanjay Kumar that she was assaulted by the accused with a club. In the hospital, Urmila succumbed to her injuries at 6.30pm. Statement of Sanjay Kumar was recorded to this effect, which became bedrock of the case. Investigation was taken up by ASI Rakesh Kumar Tyagi. During the course of investigation, autopsy on dead body of Urmila was got conducted. Autopsy surgeon opined that injuries sustained by Urmila were antemortem in nature and sufficient to cause death in ordinary course of nature. Accused Ram 2 Palat was arrested in the case. Investigation culminated into a chargesheet against him.
2. Charge for offence punishable under section 302 IPC was framed against the accused, to which charge he pleaded not guilty and claimed trial.
3. To substantiate the charge, prosecution has examined Ravinder Ahlawat, Constable (PW1), Sanjay Kumar (PW2), Rachhpal Singh, Inspector (PW3), Sunil Kumar (PW4), Parmod Kumar, Constable (PW5), Dr. Monisha Pardhan (PW6), Satender Kumar, Constable (PW7), Rakesh Tyagi ASI (PW8), Jagriti (PW9), Deshpal, Head Constable (PW10), Jagpal, Head Constable (PW11), Rishiraj Tyagi, Head Constable (PW12), Mukesh Kumar Jain, SI (PW13), Prem Pal, Head Constable (PW14), Ravinder Kumar, Constable (PW15), Pawan (PW16), Lal Man (PW17), Udaivir Singh, Inspector (PW18), Dr. Devender Singh (PW19) and Shri Suresh Babu (PW20) in the case.
4. In order to afford an opportunity to explain circumstances appearing in evidence against him, accused was examined under section 313 Cr.P.C. He had denied all the allegations levelled against him. Except admitting the fact that Urmilla was his wife, he was working as driver on phatphatseva and that he was arrested in the case, his rest of the case was of denial simplicitor. He claims his absence at the time of incident, as he had gone for his job. However, he came to know that his wife fell from stairs and sustained injuries. He also claims his relations with his wife were cordial. No altercation ever took place between him and his wife at any point of time. In order to defend himself, he had examined Ashok Kumar (DW1) in support of his defence.
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5. Arguments were heard at the bar. Sh. Subhash Chauhan, ld. Prosecutor, presented facts on behalf of the State. Sh. Ashok Bansal, Advocate, had advanced arguments on behalf of the defence. It was submitted by ld. Counsel for the accused that prosecution has miserably failed to prove its case, inasmuch as all material witnesses, namely, complainant, Sanjay Kumar; Jagriti, daughter of deceased, and Lal Man have not supported the case of prosecution, besides there is no incriminating material on record to connect the accused with offence alleged. As such, accused is entitled to be acquitted of the offence. On the other hand, ld. Prosecutor submitted that being close relatives of the deceased, Sanjay Kumar and Jagriti did not support the case of prosecution. However, as per their testimonies, deceased Urmila had fallen from stairs, as such sustained injuries, which proved fatal. However, this plea is not supported by postmortem report, inasmuch as Dr. Manisha Pradhan had deposed in her crossexamination that wounds were not result from fall from stairs and underline fracture can be result of blunt force impact to the deceased. Moreover, cricket bat was recovered at the instance of accused, as such it was submitted that prosecution has been able to bring home guilt of the accused beyond reasonable doubt and accused is liable to be convicted, inasmuch as he had committed serious offence of giving blows on the head of his wife with a cricket bat, as a result of which she sustained injuries, which proved fatal.
6. I have given my considerable thoughts to respective contentions of ld. Counsels for the parties and have perused the record.
7. In the instant case, prosecution machinery was set in motion on receipt of an information from Sanjay Kumar, regarding a quarrel 4 between his sister and brotherinlaw (jeeja), as a result of which his sister had become unconscious, whereupon DD No. 15 Ex.PW1/A was recorded. On receipt of this information, HC Deshpal reached house No. 456, Gali No.16, Budh Vihar, Ganga Sahai Colony, Nand Nagri, Delhi, where he found a girl in injured condition. He took the girl, with her brother Sanjay Kumar, to GTB Hospital for her medical examination. ASI Rakesh Tyagi went to GTB Hospital, Shahdara, Delhi, where he collected MLC of injured Urmila and recorded statement of Sanjay Kumar, brother of Urmila, which is Ex.PW2/A to the effect that his sister Urmila got married with accused Ram Palat 2021 years ago. Five children were born out of wedlock. His brotherinlaw Ram Palat used to drive phat phatsewa. Due to shortage of income, his sister Urmila wanted to work, which was opposed by his brotherinlaw Ram Palat. There used to be quarrel on this issue and Ram Palat had told his sister that in case she will join some service, then either he will finish her or will kill himself. He tried to make them understand. On 15.09.08 at about 2 or 2.15pm, when he was present at his house, his niece Jagriti, aged about 13 years, gave him a telephone call that her father has severely beaten her mother, as a result of which blood was oozing out of her head. He immediately went to house of her sister and found her sister Urmila lying in pool of blood and was crying. He tried to control blood by tying her head with a bedsheet and informed the PCR. Immediately, PCR van came and he took his sister Urmila to GTB Hospital in PCR Van. On the way, his sister informed him that quarrel had taken place between her and Ram Palat regarding the employment issue and Ram Palat told her that he would finish that issue and took up a wooden danda and hit on her head 5 forcibly, as a result of which she raised an alarm and fell down. Her daughter Jagriti came downstairs and on seeing her condition, she started crying and raised alarm. Ram Palat managed to escape from the spot. However, when Sanjay appeared in the witness box, he took somersault and deposed that on 15.09.08 at about 2 or 2.15pm, he received a telephone call from his niece Jagriti, who informed him that her mother has fallen from stairs and asked him to come immediately. He reached house of his sister within ten minutes. He saw that his sister was lying on stairs and had sustained injuries on her head. He kept a towel on the head of her sister to stop blood and took her to next room. He informed PCR. PCR van came at the spot and took her to GTB Hospital. He inquired from his sister as to how she sustained injuries. She told him that she had fallen from stairs and in that process she received injuries. He was made to sign some papers. He admitted his signatures at point A on Ex.PW2/A, but denied that contents of the same were narrated to him by the IO. Since this witness did not support the case of prosecution, he was crossexamined by the ld. Prosecutor. In crossexamination, he denied that Ex.PW2/A was read over to him and thereafter it was signed by him. He also denied that income of his brotherinlaw was less than kitchen expenses and on that count his sister wanted to get employment or that on that count there used to be altercation between accused and his sister. He also denied that accused used to say that in case Urmila would get employment, then he would kill her one day. He also denied that on her way to hospital, Urmila told him that on that day, there was an altercation between her and the accused over the issue of joining job or that accused Ram Palat became angry 6 and lifted wooden club and assaulted over her head, as a result of which she sustained injuries, cried in loud voice and at that juncture Jagriti came downstairs and saw accused running away from there. He was confronted on material points of his statement Ex.PW2/A, which he denied to have made to the police.
8. The other material witness was PW9 Jagriti, daughter of deceased and accused Ram Palat. She had testified that relations between her mother and father were very cordial. Her mother never wanted to serve anywhere. On 15.09.08, her mother fell down from stairs. Her maternal uncle removed her mother to GTB Hospital. On that day, her father was away to his job at that time. She had not stated before police that her father had assaulted her mother. Since this witness did not support the case of prosecution, she was crossexamined by the ld. Prosecutor. In crossexamination, she stated that she had stated in her statement before IO that her mother had expired on account of fall from stairs. She denied having stated before the IO that her mother wanted to serve privately for running kitchen expenses and on that issue there used to be altercation between her mother and father. She denied that on that day at about 2pm, she was present in her room, she heard noise of her mother and her parents were quarreling over that issue or that she came downstairs and found her mother lying on the ground smeared with blood. She admitted that she gave telephone call to her maternal uncle, who came and informed the police control room. She denied that her mother expired on account of assault made by her father.
9. The result is that both the material witnesses have not supported the case of prosecution.
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10. In 2009 (VIII) AD Delhi 436, Savar Bhati & Ors Vs. State, it was observed by hon'bl e High Court as under : "It is said state of affairs in this country that public does not join in police investigation, and if joins in police investigation normally turns hostile. Cases are replete in law journals of public turning hostile and the prosecution suffering. If citizen did not shoulder public responsibility of truthfully disclosing commission of offence they have fully seen where from can the police bring truth on record?"
11. Present case is not on a better footing, inasmuch as it is not a case where a public person has not supported prosecution. In fact it is the real daughter and brother of deceased, who have failed to bring forth the real truth. When deceased could not get justice from her near kith and kin, who have leaned in favour of the accused, no court can ascertain facts when witnesses have decided to scuttle the truth.
12. Under these circumstances, when prosecution has not been able to bring home guilt of the accused on the basis of testimony of eye witnesses of the case, now it would be seen, if prosecution has been able to show the circumstances, which only pointed towards accused Ram Palat as author of crime.
13. The broad circumstances, highlighted to fasten guilt of the accused, relied upon by the prosecution are as follows : (1) Dying declaration made by Smt. Urmila.
(2) Recovery of cricket bat at the instance of accused. (3) Medical Evidence.
(4) Conduct of the accused.
8 The case in hand has to be gauzed in the background of aforesaid principles.
14. As regards legal proposition regarding circumstantial evidence is concerned, it has been consistently laid down by hon'bl e Apex Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. Reference may be made to Hukam Singh v. State of Rajasthan, AIR 1977 SC 1063; Eradu v. State of Hyderabad, AIR 1956 SC 316; Earabhadrappa v. State of Karnataka, AIR 1983 SC 446:
State of U.P v. Sukhbasi, AIR 1985 SC 1224; Balwinder Singh v. State of Punjab, 1987(1) RCR (Crl.) 517(SC): AIR 1989 SC 1890. 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. In Bhagat Ram v. Sate of Punjab, AIR 1954 SC 621, it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
15. Reference may also be made to a decision of hon' ble Supreme Court in C. Chenga Reddy v. State of A.P., 1996(3) RCR (Crl.) 9 793 (SC): 1996 (10) SCC 193, wherein it has been observed thus :
"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence"
16. In Padala Veera Reddy v. State of A.P.,1990(2) RCR (Crl.) 26 (SC): AIR 1990 SC 79 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and non else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only 10 be consistent with the guilt of the accused, but should be inconsistent with his innocence.
17. In State of U.P. v. Ashok kumar Srivastava, 1992(3) RCR (Crl.) 63(SC): 1992 Crl. LJ 1104 it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
18. Sir Alfred Wills in his admirable book 'Wi lls Circumstantial Evidence' (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and 5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.
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19. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence laid down by hon' ble Apex Court as far back as in 1952.
20. In Hanumant Govind Nargundkar v. State of U.P, AIR 1952 SC 343 it was observed thus:
" It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one propsed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
21. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622. Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in the prosecution cannot be cured by a false defence or plea. The condition precedent in the 12 words of hon' ble Supreme Court, before conviction could be based on circumstantial evidence, are reproduced as under :
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (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.
Substantially similar view was taken in Geejaganda Somaiah vs. State of Karnatka, AIR 2007 S.C. 1355.
22. This being the legal position, the case in hand has to be gauzed in the background of aforesaid principles and it is to be seen whether prosecution has been able to complete its chain of circumstances to bring home guilt of the accused beyond reasonable doubt.
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23. First piece of evidence relied upon by prosecution is " oral dying declaration" made by deceased Urmila to her brother Sanjay and Desh Pal, Head Constable. As regards legal proposition regarding oral dying declaration is concerned, it is well settled that same can be considered by the Court as basis of conviction, provided it inspires confidence. Oral dying declaration can be considered by the Court as the basis of conviction provided it inspires confidence in the mind of the Court. However, the Court has to satisfy itself about the truthfulness of the dying declaration before acting upon it. It has also to be seen as to whom the dying declaration was made by the deceased.
24. eikrujam Chauba Singh Vs. State of Manipur', JT 1999 (8) SC In 'H 205 where the prosecution had not examined several disinterested persons, though present when deceased was making the alleged dying declarations, it was held that no reliance can be placed on the dying declaration made by the deceased to his brothers. It was observed :--
"An oral dying declaration no doubt can form the basis of conviction though the Courts seek for corroboration as a rule of prudence. But before the said declaration can be acted upon the Court must be satisfied about the truthfulness of the same and that the said declaration was made by the deceased while he was in a fit condition to make the statement. The dying declaration has to be taken as a whole and the witness who deposes about such oral declaration to him must pass the scrutiny of reliability."
25. In 'Smt. Laxmi Vs. Om Prakash & Ors'., AIR 2001 SC 2383 as well as MANU/C/0353/2001, it was held :--
"Nemo moriturus praesumitur mentire. No one at the point of death is 14 presumed to lie" . A man will not meet his maker with a lie in his mouth" -- is the philosophy in law underlying admittance in evidence of dying declaration. "A dying declaration made by person on the vergo of his death has special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sucrose not status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes a very important and a reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishments such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration" --i s the statement of law summed up by hon'b le Supreme Court in Kundula Bala Subrahmanyam Vs. State of A.P., MANU/SC/0508/1993. The Court added--s uch a statement, called the dying declaration, is relevant and admissible in evidence provided it has been made by the deceased while in a fit mental condition. The above statement of law, by way of preamble to this judgement, has been necessitated as this appeal, putting in issue acquittal of the accused respondents froma charge under section 302/34 IPC, seeks reversal of the impugned judgement and invites this Court to record a finding of guilty based on the singular evidence of dying declaration made by the victim. The law is well settled :
dying declaration is admissible in evidence. The admissibility is founded 15 on principle of necessity. A dying declaration, if found reliable, can form the basis of conviction. A Court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence. It is, as if the maker of the dying declaration was present in the Court, making a statement, stating the facts contained in the declaration, with the difference that the declaration is not a statement on oath and the maker thereof cannot be subjected to crossexamination. If in a given case a particular dying declaration suffers from any infirmities, either of its own or as disclosed by other evidence adduced in the case or circumstances coming to its notice, the Court may as a rule of prudence look for corroboration and if the infirmities by such as render the dying declaration so infirm as to prick the conscience of the Court, the same may be refused to be accepted as forming safe basis for conviction. In the case at hand, the dying declarations are five. However, it is not the number of dying declarations which will weigh with the Court. A singular dying declaration not suffering from any infirmity and found worthy of being relied on may form the basis of conviction. On the other hand, if every individual dying declaration consisting in a plurality is found to be infirm, the Court would not be persuaded to act thereon merely because the dying declarations are more than one and apparently consistent."
26. Turning to the case in hand, Deshpal, Head Constable has deposed that on receipt of call regarding quarrel at house No. 456, 16 Street No.16, Budh Vihar, Ganga Sahai Colony, Nand Nagri, Delhi, he reached there and found one lady in injured condition. He took that girl, along with her brother Sanjay, to GTB Hospital for medical examination. On the way, the girl was stating to her brother that she has been beaten by her husband. However, brother of the girl, namely, Sanjay Kumar does not corroborate his testimony, inasmuch as he has deposed that he inquired from his sister as to how she sustained injuries and she informed him that she had fallen from stairs and in that process she received injuries.
27. As regards testimony of Desh Pal, Head Constable, is concerned, it has come in his crossexamination that Urmila was bleeding from her head injuries. When she was taken to GTB Hospital, she was unoriented. Although he went on deposing that on the way she told her brother that she was assaulted by her husband, but keeping in view this statement that Urmila was unoriented, factum of making this dying declaration in his presence or in presence of his brother seems to be doubtful. Moreover, although as per testimony of this witness, he had taken Urmila to hospital on 15.09.08. However, his statement Ex.PW10/DA was recorded only on 09.12.08. According to him, his statement was recorded by IO in the hospital, when he was getting Urmila admitted. He denied the suggestion that statement was not recorded in hospital. He admitted that statement Ex.PW10/DA was recorded on 09.12.08. On that day, he had not gone to hospital. He further admitted hat on 15.09.08, he did not make any statement. He went on stating that he did not make any statement before Inspector Rishi Pal on 09.12.08 and that Inspector Rishi Pal might have 17 recorded his name and number and might have recorded his statement of his own. This being the situation, it is doubtful whether any statement was made by HC Deshpal or not, and at whose instance Inspector Rishi Pal recorded this statement on 09.12.08. Moreover, when the alleged dying declaration was made on 15.09.08, why statement of HC Deshapl was not recorded on the same day. The result of the aforesaid discussion is that prosecution has not been able to prove oral dying declaration alleged to have been made by deceased before her brother and HC Deshpal.
28. In 2007 (2) JCC 1636, Rakesh Kumar @ Mukri vs. State, NCT of Delhi, the question arose whether conviction can be based upon oral dying declaration. It was held by hon'b le Justice Aruna Suresh that oral dying declaration can be considered by the Court as the basis of conviction, provided it inspires confidence in the mind of the Court. However, the Court has to satisfy itself about truthfulness of the dying declaration before acting upon it. It has also to be seen as to whom the dying declaration was made by the deceased. In that case also, prosecution was relying upon oral dying declaration, made before a Constable. However, it has also come that at that time of making alleged dying declaration, three or four public persons were present, who were not examined by the prosecution to support version of the Constable. Under these circumstances, it was held that it was unsafe to rely upon statement of the Constable before whom the dying declaration is alleged to have been made.
29. Another piece of evidence relied upon by the prosecution is recovery of "cricket bat" at the instance of accused. Inspector Udaivir Singh has 18 testified that on 18.09.08, Lal Man informed him that Ram Palat had called him to demand some money and has asked him to meet near CNG Station, outer ring road, Indraprastha, Dhirpur. Accordingly, a raiding party, comprising of ASI Rakesh Tyagi and HC Jagpal, was formed and they proceeded towards Khajuri chowk. At about 8pm, Lal Man met them, who was included in the raiding party and they proceeded towards outer ring road, CNG Station. At about 9pm, accused Ram Palat came and met Lal Man. Lal Man gave him some money and signaled towards police officials. There upon, accused Ram Palat was apprehended and arrested in this case. He made disclosure statement Ex.PW8/H and led the police party to his house, got recovered one cricket bat, which was used in the incident and place on the niche of the house. He prepared a pullanda and sealed the same with seal of UBS and took into possession vide memo Ex.PW8/G. Case property was deposited in the malkhana.
30. As regards the arrest of accused, at the instance of Lal Man is concerned, same is not duly proved, inasmuch as Lal Man appeared as PW7. He deposed that he was working as driver in phatphatsewa. Accused Ram Palat was known to him as he also used to drive the phat phatsewa. According to him, he was present at Khajuri Khas red light with his phatphatsewa. Police officials came and took him to PS Harsh Vihar and from there to PS Nand Nagri. His signatures were obtained on some documents and then he was allowed to go from there. Since this witness did not support the case of prosecution, he was crossexamined by the ld. Prosecutor. In crossexamination, he denied that on 18.09.08 he received telephone of Ram Palat on his mobile phone or that Ram 19 Palat was demanding some money, on which he asked him to meet him at 9pm near CNG Petrol Pump, Dhirpur. He also denied having made any statement to police that he informed police officials regarding receiving of phone call from Ram Palat or that he was to meet him at CNG Petrol Pump or that Ram Palat came at CNG Station, Outer Ring Road, Bijlighar, Dhirpur, to whom he gave a sum of Rs.2,00/ or that at his pointing out, accused Ram Palat was overpowered by police. Under these circumstances, keeping in view the fact that Lal Man has not supported case of prosecution, the manner in which accused Ram Palat was arrested is not proved beyond reasonable doubt.
31. As regards recovery of cricket bat, at the instance of accused from niche of his house, is concerned, firstly it may be mentioned that provisions of section 100 of the Code of Criminal Procedure relates to searches. The object is to ensure confidence in the neighbours and in the public generally that anything incriminating which may be found in the premises searched, was really found and was not planted. Subsection (4) refers only to the search of place. It is obligatory on the part of the police officer to call on and get two or more respectable inhabitants of the locality to be witnesses of the search. These witnesses must be called before the search is started. In the instant case, at the time of effecting recovery, no independent of the locality was joined and recovery is alleged to have been effected only in presence of two police officials, namely, Inspector Udaivir Singh and ASI Rakesh Tyagi.
32. Even if it is assumed that cricket bat was recovered at the instance of accused, then it has to be seen whether the same connects him with the crime, inasmuch discrepancy has appeared in prosecution case 20 regarding weapons of offence. In initial complaint Ex. PW2/A, Sanjay Kumar had stated that Urmila was hit on her head by her husband with a danda. However, the cricket bat is alleged to have been recovered at the instance of the accused. This bat was sent to CFSL, Kolkata and report Ex.PW2/A was given by Sh. Suresh Babu, Assistant Director, CFSL. As per testimony of Sh. Suresh Babu, seven sealed parcels were deposited in the laboratory on 27.10.08. Exhibit A1 contained bedsheet, A2 contained a shirt, A3 contained cemented concrete, A5/1 to A5/4 contained Kameez, Salwar, Brassier and panty respectively and A6 to A7 contained blood guaze and cricket bat respectively. On examination, he detected blood on Ex.A1 to A3, A5/1 to A5/4 and A6, except Ex. A7.
33. It has come in testimony of Rakesh Tyagi that Sanjay produced one bedsheet and shirt, which were having blood stains. Ex.A5/1 to A5/4 are clothes of deceased. It is not in dispute that Urmila was in pool of blood due to injuries and therefore blood was detected on bedsheet, shirt and clothes of deceased. The crucial exhibit was cricket bat, which was alleged to have been recovered at the instance of accused. However, on this cricket bat, no blood was detected by Sh. Suresh Babu. Under these circumstances, besides the fact that there is discrepancy regarding weapon of offence, even recovery of bat at the instance of the accused does not conclusively prove that the same has been used in commission of crime.
34. Another piece of evidence relied upon by prosecution is "postmortem report". PW6 Dr. Manisha Pradhan had conducted postmortem examination on dead boy of Urmila on 16.09.08. On examination, she found following external antemortem injuries on the body : 21 (1) Lacerated wound measuring 5cm X0.8cm X 0.5cm bone deep was present over left parietal region of scalp, 6cm above left ear and 6cm lateral to midline.
(2) Lacerated wound measuring 10cm X 2cm X0.8cm bone deep present over parietal region of scalp, 5cm above left ear and 9cm from midline. (3) Lacerated wound measuring 1cm X0.5cm X0.5cm present over right side of forehead, 0.5cm above lateral part of right eyebrow. (4) Lacerated wound measuring 4cm X0.5cm X0.8cm bone deep with four stitches in situ present over the vertex 9cm above gabella in the midline.
(5) Bruise reddish blue measuring 2.5cm X 2cm was present over out front part of right arma and 6cm above elbow.
(6) Bruise reddish blue measuring 2cm X 2cm was present over outer aspect of right orbital fossa.
(7) Bruise reddish blue measuring 6cm X 2cm was present over dorsal aspect of left thumb.
Dr. Manisha Pradhan opined that cause of death was shock as a result of antemortem head injuries, caused by a blunt force impact. Injuries No. 1,2,3 and 4 individually and collectively were sufficient to cause death in ordinary course of nature. In crossexamination, she testified that injuries referred above can result on account of fall from stairs, but underline fracture can be result of blunt force impact to the head. Lacerated wound can be caused by a club. Wounds were not result of fall from stairs. Injuries No. 1 to 4, which were individually and collectively sufficient to cause death, were wounds which were opined by her as not a result of fall from stairs.
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35. In view of opinion of Dr. Manisha Pradhan, a suspicion is cast regarding the manner in which Urmila sustained injuries. However, In Swarn Singh Ratan Singh Vs. State of Punjab, AIR 1957 SC 637, it was held by the Apex Court that in criminal cases mere suspicion, however, strong, cannot take place of proof. The Court must also take into consideration that an accused is presumed to be innocent till charges against him are proved beyond reasonable doubt. Mere suspicion, however, strong it may be, cannot take the place of legal proof. Similar view was taken by hon'bl e High Court in 2009 (VII) AD (Delhi) 615, Sunder Lal and Ors Vs. State, wherein it was observed that it is settled law that howsoever strong the suspicion may be, it cannot take place of proof and that the prosecution has to cover journey from may be, through could be, to the shall be.
36. The last piece of evidence relied upon by the prosecution is conduct of accused, who was found absconding and arrested only on 18.09.08. Under section 8 of the Indian Evidence Act, 1872, the fact that after commission of alleged crime, accused absconded is relevant fact, but it is a weak evidence and is not conclusive one.
37. Accused has taken a plea of alibi. According to him, he was not present at his house at the time of incident. He had gone for his job. Later on, he came to know that his wife Urmila fell down from stairs and sustained injuries. In order to substantiate his plea of alibi, he has examined Ashok Kumar (DW1), who deposed that on 15.09.08, accused Ram Palat was with him since morning to evening. He along with the accused reached at Chandni Chowk at about 7.308am by a phatphat sewa. From there, they had taken passengers for Delhi Darshan. They 23 had shown many visiting places to the passengers and when they reached at Rashtrapati Bhawan, at about 3.30pm, son of Ram Palat made a telephone call on his mobile phone and asked him to have talk with his father Ram Palat. He gave his mobile phone to Ram Palat. Later on Ram Palat stated to him that his son had stated that his wife has fallen and received injuries. They reached at Chandni Chowk. Ram Palat had talked to owner through his mobile phone. At about 44.15pm, Ram Palat left from Chandni Chowk for going to his house to attend his wife. Much reliance cannot be placed on the testimony of this witness, inasmuch as he could not tell the number of phatphatsewa, on which he was working as driver on the fateful day. He also could not produce any document to show that accused Ram Palat was working with him on that day. He even could not tell the name of the owner of phatphatsewa. Owner of phatphatsewa has not been examined to prove that accused was driving his phatphatsewa or that on 15.09.08, he had attended his duty. Moreover, if testimony of this witness is believed as correct, then at about 4 or 4.15pm, Ram Palt had left the spot for going to his house. There is nothing to show that accused went to hospital to atted his wife and in fact as per postmortem report the dead body was identified by brother of the deceased and accused was nowhere in the picture. Moreover, although accused has stated in his statement u/s 313 Cr.P.C that he surrendered before the police, however it was suggested to ASI Rakesh Tyagi that accused was taken from village Burari to police station. Under these circumstances, accused has not been able to prove plea of alibi and as stated above, conduct of the accused is not free from suspicion. But as held by hon' ble High Court in Sunder Lal (supra) 24 conduct is weak evidence, because it is based on presumptive logic. By itself, as the only incriminating circumstance, conduct is insufficient, where from the only inference possible is that of the guilt of the accused; ruling out the innocence.
38. The net result of the aforesaid discussion is that material witnesses, namely, Jagriti, daughter of deceased and Sanjay Kumar, brother of deceased have not supported the case of prosecution. Reasoning behind the same may be that accused is none else, but father of Jagriti and for that reason she may not be deposing against him. Similarly, Sanjay although is the brotherinlaw, but might have taken into consideration the fact that his sister left behind five children and in absence of accused, there would be none else to support them. Be that as it may be, the fact remains that in absence of their supporting the case of prosecution, more particularly, the fact that as per their version relations between accused and deceased were cordial, even motive to commit crime is not established. Under these circumstances, the eyewitnesses are hostile and circumstantial evidence is of weak in nature, which does not form a complete chain to hold the accused guilty of the offence alleged. It is a settled law that where there is doubt in the mind of the Court and there are two possible views, the benefit of doubt has to be given to the accused. For holding this view, I am fortified by State of U.P. v. Ashok Kumar Srivastava, (1982) Cr.L.J. 1104, wherein it has been held that great care must be taken in evaluating the circumstantial evidence and if the evidence relied on, is reasonably capable of two inferences, the one in favour of the accused must be accepted and the circumstance relied upon must be found to have been fully established and they must be 25 consistent only with the hypothesis of the guilt of the accused. Similar view was taken in 152 (2008) DLT 752, Mohd. Zamil Vs. State of NCT of Delhi and 2007 (2) JCC 1636, Rakesh Kumar @ Mukri Vs. State of NCT, Delhi.
39. Applying the aforesaid principle to facts of the present case, it becomes clear that prosecution has not been able to bring home guilt of the accused beyond reasonable doubt. Under these circumstances, accused is entitled to benefit of doubt. He is, accordingly, acquitted of the charge. He be set at liberty, if not wanted in any other case. File be consigned to Record Room.
Announced in the Open Court (Sunita Gupta) On this 5th day of November, 2009. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.