Delhi District Court
State vs . on 24 November, 2011
IN THE COURT OF SH. RAKESH TEWARI ASJVI(OUTER),
ROHINI COURTS, DELHI
SC NO.54/10
FIR NO. 62/07
U/S 307/506 IPC
PS Uttam Nagar
Unique Case ID No. : 02404R0003792009
State
Vs.
Mahman Singh @ Monu s/o Sh. Jai Singh
r/o WZ27A, Mahesh Vihar, Om Vihar Phase II,
Uttam Nagar, Delhi.
Date when committed to the court of Sessions :20.03.2007
Date when case reserved for judgment : 09.11.2011
Judgment pronounced on : 24.11.2011
JUDGMENT:
1. The case of the prosecution in brief is that on 21.01.2007, DD No.48B, which was regarding an information of fire broken out in a house in front of Shyam Sunder School, Mahesh Vihar, Om Vihar Phase II, was marked to ASI Mamoor Khan, who along with Ct. Sher Singh reached at WZ27A, Mahesh Vihar, Om Vihar Phase II, Uttam Nagar, Delhi, where from a room at the ground floor of a SC No.54/10 Page 1/32 residence, smoke was coming out and at that time fire brigade vehicle also reached which put off the fire and on inquiry from the neighbourhood, it transpired that one boy and a girl have been removed to hospital by PCR van and in the meantime DD No.52B was received from DDU hospital through telephone that one Monica and Mahman Singh had been admitted to the said hospital in injured condition in a quarrel and the ASI left the said constable for the safety of the spot and reached DDU hospital where he obtained the MLC of Mahman Singh and Monica, who were declared unfit for making statement and said Monica was having injuries below her chin, at the right ear and at the right thumb of the hand and Mahman Singh was also having injuries over his chin and arm and no eye witness could be found in the hospital and thereafter the ASI returned back at the spot and found that one half burnt blanket was lying over heater in the said room and the ASI summoned the photographer who took the photographs of the room and thereafter the ASI searched for the eye witness but could not find anyone and from the inspection of the spot, it seemed that both the said persons had quarreled with each other and he made his endorsement below DD No.48B and got registered the FIR u/s 324 IPC.
2. During the investigation, the rough site plan was prepared and statement of said injured Monica was recorded and the accused Mahman Singh was arrested and at his pointing out, one Dau of iron SC No.54/10 Page 2/32 (meat chopper) was recovered with which he caused injuries to the said injured and the statements of the witnesses were recorded and as the injuries suffered by said injured Monica were grievous, Section 326 IPC was added and the charge sheet was filed.
3. As per statement of injured Monica @ Ritika, she was residing at JD26F, Hari Nagar, Delhi, along with her parents and was working as Computer Operator in a private company at Karol Bagh and about one year back, she became acquainted with one Monu, who was bus driver, which converted into love affairs and said Monu was asking her to marry him but she refused and she used to go with Monu for outing and to see a movie also and she was having no doubt over his intentions and that on 21.01.2007, in the evening, said Monu telephoned her and proposed to go for a movie and called her at Ghanta Ghar and at about 8 p.m, she reached Ghanta Ghar, Hari Nagar, where Monu met her, who told her that he wanted to change clothes from his house at Om Vihar and both of them went to Om Vihar Phase II, Uttam Nagar, at H.No.WZ26A, in an auto and entered the said house and she sat on a plastic chair and suddenly Monu asked her to tell him as to whether she would marry him or not to which she refused and told him that she would marry as per wish of her parents due to which said Monu became furious who was sitting on the bed with a blanket over him and he threw the said blanket down and from one iron dau, he gave her blows with SC No.54/10 Page 3/32 the same indiscreetly while uttering not to spare her life that day and thereafter he would see as to whom she would marry and that she received injuries at her hands, ear, temple and chin and she fainted and was perplexed and he was threatening her to kill her and when she regained consciousness, she found herself in the hospital and that her brother namely Sunny Sudan also knew the said Monu very well.
4. On the basis of the said evidence and the charge sheet my Ld. Predecessor, vide his order dated 10.09.2007, framed charge against the accused u/s 307/506 IPC, to which he pleaded not guilty and claimed trial.
5. The prosecution, in order to prove its case, has produced as many as 7 witnesses which have been discussed below.
6. The statement of the accused u/s 313 Cr.PC was recorded wherein he pleaded his innocence and denied the incriminating evidence against him as false and did not prefer to lead any defence evidence.
7. I have heard Ld. APP for the state, Sh. Rajender Sharma, Advocate for the accused and perused the record.
8. PW1, HC Shri Ram was the duty officer who proved the copy of FIR as Ex.PW1/A. PW3 Dr. Bhavna of DDU hospital proved the SC No.54/10 Page 4/32 signatures of Dr. Anju Jain on the MLC of the said injured Monica as Ex.PW3/A (on the said MLC previously wrong exhibits, such as, Ex.PW1/A and Ex.PW2/B were given but it was clarified vide my order dated 23.08.2010 that said MLC shall be read as Ex.PW3/A and the opinion of Dr. Ishwar shall be treated as Ex.PW3/B) and also the MLC of accused prepared by Dr. Anju Jain as Ex.PW3/C and the MLC Ex.PW3/A of injured Monica mentioned clean incised wound of 4 x 1 cm bonely at base of left thumb with exposed tenden muscle and chopped bone, clean incised wound 8 x 1 cm muscle deep extending from middle of right mandible to behind the right ear, clean incised wound 2.5 x .5 x .5 cm middle of the right pinna through and through, clean incised wound 2 x .5 x .5 cm just below the chin, clean incised wound of 5 x 1 x .5 cm behind the right ear extending till nape of neck, clean incised wound 2 x .5 x .5 cm over occipital region and loss of tissue of right ear nope and it is also mentioned that kind of weapon was used as sharp and the nature of injuries caused to said Monica was grievous and the Orthopedics Dr. Ishwar has written his notes in his opinion that there was fracture of the bone of the first metacarpal left hand thumb as per Radiologist. In her cross examination, the doctor replied that injuries on the person of the patients may or may not have been caused by more than one person and that injury on the person of patient Monica are not possible due to fall on the ground. PW5 Dr. Jasmeet Kaur of SC No.54/10 Page 5/32 the DDU hospital deposed that she had seen the MLC bearing No.1396 dated 21.01.2007 of the patient Monica in which the doctor dealing with ENT treatment of the patient and opinion was given by Dr. Shubhkam who had signed in the encircled portion at point X in the MLC and the said doctor was not cross examined.
9. PW4 Ct. Sher Singh deposed that on 21.01.2007, he accompanied ASI Mamoor Khan on receipt of DD No.48B to the said house at Om Vihar, Phase II, Uttam Nagar, and smoke was coming out and that the fire brigade vehicle also reached and persons present there helped to extinguish the fire and on inquiry, it revealed that PCR van had taken one boy and a girl to the hospital and in the meantime, one more information was received by ASI Mamoor Khan that injured had been admitted in the DDU hospital and he was deputed to look after the scene of occurrence and IO went to the hospital and on his return from the hospital one private photographer was called who took the photographs of the scene of occurrence and that IO prepared a rukka and gave the same to him which he took to the PS and after getting the FIR registered, he returned at the spot with the original rukka and copy of FIR and handed over the same to the IO who prepared the rough site plan and thereafter they went to DDU hospital where one girl namely Monica was already admitted where IO recorded the statement of Monica and one person by the name of Sunny, the brother of Monica, also SC No.54/10 Page 6/32 met them in the hospital and when they started coming back along with Sunny, he pointed out towards a person whose name was later on revealed as Mahman Singh @ Monu who was apprehended and formally arrested vide memos Ex.PW2/A and Ex.PW2/B and accused made a disclosure statement Ex.PW4/A and led them to the spot and got recovered one burnt heater, one iron Dau (like dagger), one leather purse in burnt condition which was containing driving license, ATM card and some other articles which he did not recollect and the said articles were sealed with the seal of MK and the iron Dau was also sealed and said all articles were seized vide memo Ex.PW4/B and that the personal belongings of injured Monica were given by the doctor which were seized by the IO vide seizure memo Ex.PW4/C and he identified one Dau as Ex.P1, burnt iron heater as Ex.P2, the purse containing the said documents as Ex.P3 and other articles contained in the purse like ATM card, PAN card, D/L etc collectively as Ex.P4. In his cross examination on behalf of the accused, he replied that they reached at the spot at about 10.50 or 11 p.m and more than 1520 persons had gathered at the spot and fire brigade officials were also there and the public persons were asked to join the investigation at the time of recovery of the case property but none agreed to join. He replied that IO had handed over the rukka to him at 1.30 a.m on the same night.
10. PW7 Retd. SI Mamoor Khan, the IO of the case, deposed that SC No.54/10 Page 7/32 on 21.01.2007, he received DD No.48B Ex.PW7/A, regarding the fire at the said place and he reached there along with Ct. Sher Singh and thereafter he deposed on the lines on which PW4 has deposed and he proved the DD No.52B as Ex.PW7/B whereby the information was received from the DDU hospital regarding admission of the said two injured in the said hospital and thereafter he moved application before the doctor which is Ex.PW7/C for recording their statements but the injured were declared unfit for statement by the doctor and then he deposed regarding reaching at the spot and that the photographs Ex.PW7/X1 to X12 were taken and thereafter he proved his endorsement on the said DD No.48B as Ex.PW7/D and got registered the case and thereafter he reached the hospital and said Monica was admitted in Orthopedics department at that time and Mahman Singh was discharged who was not available in the emergency ward of the hospital and that he met Monica, who was ready to give her statement, and at that time her brother Sunny Sudan was also present in the hospital and he recorded her statement Ex.PW7/E which was got signed from Monica and thereafter he took said brother of the injured Monica in search of the accused and when they reached near the gate of mortuary of the hospital, said Sunny Sudan pointed out towards a boy who was covered with a bed sheet and was standing in the park as Mahman Singh and he apprehended and arrested him vide memos Ex.PW2/A and Ex.PW2/B and SC No.54/10 Page 8/32 accused made his disclosure statement Ex.PW4/A and thereafter, he along with accused and Sunny Sudan came back at the spot and at the instance of the accused, one iron Dau (a kind of meat chopping knife) was recovered and he identified the same as Ex.P1 and other articles belonging to the accused contained in the purse as Ex.P2 and burnt heater as Ex.P3 (inadvertently the exhibit numbers to the said articles were again given different from those mentioned in the deposition of PW4. However, the same shall be read by the nature of the articles in reference to context.) and thereafter he prepared site plan Ex.PW7/F and as the result on the nature of injury on the MLC of Monica was grievous, he added Section 326 IPC.
11. In his cross examination on behalf of the accused, PW7, the IO of the case, replied that since it was night time, one or two persons were found standing in the gali when he reached the spot and on inquiry, they only disclosed about the fact that one boy and one girl in injured condition had been removed by the PCR. He further replied that he did not find out the relationship between both the injured as none other was residing there. He answered that as per the statement of Sunny Sudan, he was knowing the accused for the last one year but he did not inquire from the said witness as to in which capacity he was known to the accused. He further replied that it took about 30 to 45 minutes on 22.01.2007, in recording the statement of Ms. Monica and he did not remember the date of SC No.54/10 Page 9/32 discharge of Ms. Monica from the hospital. He was not aware if she was still under treatment or not. He replied that the reason for injury received by the accused was mentioned by him in the disclosure statement of the accused Ex.PW4/A. He denied the suggestion that some third person had caused injuries to both the said injured.
12. PW2 Sunny Sudan, the brother of injured Ms. Monica, deposed that he knew accused Mahman Singh @ Monu present in court as he was the driver on Blue Line bus, Route No.73, 108, as he often travelled by the said bus and that on 22.01.2007, he had received a phone call of his mother at about 3.30 p.m, that his sister Monica was admitted in the DDU hospital in injured condition and thereafter he reached the said hospital and found his sister admitted there in injured condition and that he inquired from her as to how she received injuries on which his sister told him that accused Mahman Singh @ Monu inflicted injuries with knife/Dau on her person (which was objected to by the Ld. Defence counsel being hearsay). He further deposed that on the same day i.e. 22.01.2007, in the evening, accused was arrested by the IO on his pointing out while he was standing near the mortuary DDU hospital and was arrested vide memos Ex.PW2/A and Ex.PW2/B.
13. In his cross examination on behalf of the accused, he replied that he knew accused Mahman Singh two years prior to the incident SC No.54/10 Page 10/32 as he was studying in the school and used to go by the bus driven by accused Mahman Singh and he came to know about his name for the first time on the day of occurrence of incident as told by his sister and that he told the IO of the case about the presence of accused near the mortuary DDU hospital and thereafter they reached there with him. He further replied that his sister never told him that Mahman Singh wanted to marry her. He denied the suggestion that he was deposing falsely or that he was interested witness as his sister was the victim.
14. Coming to the deposition of injured Ms. Monica who appeared as PW6, it was observed by me before her deposition that she was having 80 stitches on the rear side of her right ear, at the head, on the right cheek, right ear and thumb of left hand was chopped off and several times surgeries were conducted upon her and that she lost her power of speech for about 3 ½ years and she is still under treatment for various infections developed in different parts of her body and the witness is still having difficulty in speaking and this observation was made just for describing the physical condition of the witness so that the same may be corelated with her deposition and may be appreciated at the time of final arguments.
15. PW6 deposed that she knew accused present in court through SC No.54/10 Page 11/32 her sister Sonu and that in the year 200607, she used to do private job in Karol Bagh and she used to go and come in a TSR and that on the advise of her mother that she should go in a bus to save money, she started going in a bus and that her mother used to see off her up to the bus and the accused, who was the driver of the said bus, had asked for 23 days as to why her mother was coming to the bus stand and that sometimes the accused used to stop the bus after looking at her at the place even where there was no bus stand and that on the said objection against her mother, she asked the accused to mind his own business and that the accused used to provide her the seat in the bus so that from the back mirror of the bus he could see her and she became conscious of the same and realized that she was being stared by him and sometimes accused used to say not to purchase the ticket daily as if she herself was the staff of the bus and that then she realized regarding the bad intention of the accused towards her and that she left her job and that the accused managed to send his sister to her house for giving her study tuitions but at that time she was not knowing that she was the sister of the accused and that the said sister of the accused twice or thrice had taken her clothes and shoes to wear and that when she asked for the return of her clothes from her, she (Sonu) gave her the address of her (Sonu) house at Hari Nagar, Delhi and asked her to fetch her clothes from her (Sonu) house on the pretext that she (Sonu) was having no time and requested her to SC No.54/10 Page 12/32 take her clothes from her (Sonu) house. She further testified that few days before the incident, she had gone to the house of said sister of the accused where she was stunned to see the accused along with another girl and at that time the said sister and mother of accused were also present and that she was frightened after looking at the accused there and came back to her house. She further deposed that on 20.01.2007, she had gone to Tilak Nagar market along with her brother Sunny to purchase a bouquet for presenting the same on the Birthday of her friend and that as her brother was a professional photographer, he received a call of some assignment on urgent basis and he left from the said market and instructed her to go in a TSR to her house and that at that time, neither herself nor her brother were knowing that the accused was chasing them and that in her statement, the police had falsely written that she accompanied the accused in a TSR from Hari Nagar to see a movie and that when she was waiting for a TSR, the accused, at the point of knife, made her to sit in a blue colour Zen car which was being driven by the accused himself but she did not remember the registration number of the same and that when she tried to inform her family relatives at her mobile phone, the accused snatched her mobile phone and in the same car took her to a place which may be either known as Uttam Nagar or as Om Vihar, regarding which she was not sure. She further testified that there was a big vacant space wherein there was SC No.54/10 Page 13/32 a room at the ground floor and the accused pushed her inside the room and the premises was having two rooms and that thereafter from the said room the accused dragged her to other room of the said premises and thereafter accused had taken out a dagger used for meat chopping from inside the double bed and she could identify the said dagger, if shown to her and the witness identified the dagger as Ex.P1 which was the same which was taken out by the accused and used. (It was observed by the Presiding Officer of this court at this junction that even with a glimpse of the dagger, when shown to the witness, the witness started shivering with fear and started weeping bitterly.) She further testified that accused, at the point of said dagger, asked her if she would marry him or not and started giving blows with the said dagger on different parts of her body and was threatening not to spare her life and that she had asked the accused as to whether he had seen his face and that she also asked him that he was of the age of his father and at that time accused attempted to commit rape with her also and that when she tried to escape from the room, the accused set the said room on fire and that as she had received injuries with the said chopper at the back of her right ear, chin, head, neck, left hand and as the thumb of her left hand was chopped off, she became unconscious and that she regained consciousness but she could not say as to after how many days. She further deposed that she was having no love or any kind of affair SC No.54/10 Page 14/32 with the accused and that accused even from judicial custody had written threatening letters wherein he had also admitted his fault and that her father, due to the tension, after the said incident had expired on 14.05.2010 and she requested to produce the said letters written by the accused. She further testified that she was still apprehending danger to her life at the hands of the accused and that she could tell the date of incident after going through her medical papers in order to clarify as to whether the date was 20.01.2007 or 21.01.2007. In her further deposition on 20.09.2011, after going through the photographs Ex.PW7/X1 to X12 and on asking to identify the place of incident, the witness has pointed out the photographs Ex.PW7/X9, X10, X7, X6 and X5. She further deposed that she had brought her photographs showing her injuries and the treatment received by her after the injuries which are Ex.PW6/A1 to A4 and that photographs Ex.PW6/A5 to A8 showed her treatment after her recent operation and that now it was diagnosed by the doctor her as a patient of depression and some psychological problem due to the injuries received and the continuous treatment thereof. She further testified that she had brought the original letters sent by accused from Rohini Jail which are Ex.PW6/B1 to B3 and the envelopes are Ex.PW6/B4 and Ex.PW6/B5.
16. In her cross examination on behalf of the accused, she replied that she did not remember the exact date from which she started SC No.54/10 Page 15/32 travelling in the said bus and knowing the accused and that she started knowing the sister of accused namely Sonu after she left her job and she used to come to her for taking tuition classes but by that time she did not know that she (Sonu) was the sister of the accused. She denied the suggestion that she used to go to the house of Sonu for giving tuitions. She replied that she hardly gave tuition classes to Sonu for one month for Hindi subject and it was in the year of the incident and probably in the month of January, she had given tuition to Sonu but she did not remember as to how much she charged for the same. She replied that Sonu used to take her T shirt and jeans from her to wear. She denied the suggestion that said Sonu was 10 years of age at that time. She replied that Sonu was a student of 6th class at that time. She denied the suggestion that the said bouquet of flowers was purchased by her for giving the same at the Birthday of the accused. She denied the suggestion that her family members were on visiting terms with the accused. She denied the suggestion that on the day of incident, at the asking of the accused, she had gone to the house, stayed there or took food there or planned to see a movie with the accused. She denied the suggestion that she was present at the house of the accused on the occasion of his Birthday or that so many persons were present at the house of accused including one doctor Vinod and she volunteered that she did not know any person by the name of Dr. Vinod. She denied the SC No.54/10 Page 16/32 suggestion that said Dr. Vinod advised her not to continue with the accused in any relation nor she would talk to him for marrying her. She further denied the suggestion that in the said quarrel, said doctor Vinod and his associates gave beatings to her as well as to the accused or that as a result of which she suffered injuries and she volunteered that accused was alone at that time. She denied the suggestion that since accused has also suffered injury in the said alleged incident, he was also admitted to the hospital. She replied that since the police officials and her brother were searching for the accused and at the relevant time the accused had covered himself with a blanket and at that time her brother had identified the accused as the culprit. She further denied the suggestion that for last two years she was not coming to the court otherwise the truth would be revealed to the effect that someone else was the accused of the offence and not the accused present in court. She volunteered that as she was under regular medical treatment and became speechless also due to the injuries, she could not come to the court. She further answered that after the incident, she lost her speech but she did not remember the exact date on which she regained her speech and initially she could speak very little and she volunteered that as soon as she regained her speech, she appeared before the court. She answered that as she was not able to speak and despite her wish to come to the court and depose, she could not come to the court and SC No.54/10 Page 17/32 during this time she received threats also at the instance of the accused and that she had disclosed about the said threats to her lawyer and reports were also lodged at the PS and that even in the hospital, during her treatment, she was shifted to 6 or 7 rooms for her safety due to the said threats given by the accused. She further answered that police had visited the hospital at that time and that initially police had obtained her thumb impression on a written paper and she was not in a position to read the same and at that time she was alone in the hospital. She answered that the doctors used to check her but no talks with them took place on her behalf and that as she was speechless, the doctor or the IO never showed her any document to admit or deny by her regarding her condition or injuries suffered during her treatment at the hospital. She denied the suggestion that accused has been falsely implicated in order to extort money from him and she volunteered rather the accused had offered her one or two petties in cash (petties is a slang word and known in the common parlance as Rs.1 lakh) and not to depose before the court and this offer of the accused came to her through the persons of the locality. She denied the suggestion that she was having love affair with the accused.
17. It has been contended on behalf of the accused that he was having no intention to murder the said injured otherwise she would have been killed. The argument has been advanced as if there is any SC No.54/10 Page 18/32 mechanism or scientific instrument or otherwise a formula to know as to what the accused was thinking in his mind. It is for this reason that law commands that mens rea is to be deduced from the actus reas because under the criminal law, every body is presumed to know the consequences of his act and that is why it is by the act of a person that his intention is inferred from the same. The said deposition of PW6 and the nature of the weapon used, the vital parts of the body of the victim where the injuries were caused and nature of injuries, as established by the said evidence, go to unerringly point out towards the intention of the accused to commit murder of the victim and it is otherwise factors and circumstances due to which she had a close shave and escaped her murder and survived.
18. It has been further contended that as per deposition of PW6, she was speechless for a considerable time of more than one year, then how she could have narrated the facts to the PW2, her brother. This contention is based on the misreading of her deposition wherein she has answered that initially she could speak very little.
19. Next contention raised on behalf of accused is that PW3, Dr. Bhavna, has answered in her cross examination that the injuries on the person of the patients may or may not have been caused by more than one person. Even if it may be so, but the question is as to what is the defence of the accused and to my mind, there is no defence put SC No.54/10 Page 19/32 by the accused except a bald suggestion that one Dr. Vinod and his associates allegedly caused injuries to PW6 as well as to the accused. What stopped the accused under the law to summon the said doctor Vinod or otherwise persons allegedly present at the time of alleged Birthday of the accused to prove the said injuries caused by Dr. Vinod and his associates. What prevented him under the law, to file a complaint case before the concerned Magistrate against the said Dr. Vinod and his associates even if the police might not have helped the accused in this regard. Thus, the said contention is baseless and without support of any legally admissible evidence on the record.
20. It is further argued on behalf of the accused that he had no sister by the name of Sonu. Again, this is a baseless submission particularly in view of the fact that the accused was free to produce his mother or father in the witness box in order to prove the said fact or otherwise would have established the said fact by way of leading evidence. It is interesting to note that against his said argument now, at the time of cross examination of the victim PW6, it was suggested that said Sonu was ten years of age at that time. It was further suggested to PW6 that she used to go to house of Sonu for giving tuition and the said suggestions were denied by the PW6 as wrong. Moreover, no suggestion was thrown to PW6 that the accused was not having any sister by the name of Sonu which go to SC No.54/10 Page 20/32 falsify the said alleged stand of the accused. Similar was his argument that mother of the accused never came to Delhi, then how she was found present by PW6 at the house of accused. None stopped the accused to produce his mother into the witness box to prove the said fact but it was not done, for the reasons best known to the accused.
21. Next argument advanced on behalf of the accused is as to why PW6 did not leave the said bus if she was harassed at all by the accused as the driver of the bus, as deposed by her. This argument is nothing but adding insult to the injury of PW6 suffered by her. Was she availing the facility of bus as a transport for facilitation of the accused to be raped by him or to follow the dictates and commands of the accused? Was she travelling in the bus to succumb to the illegal designs of the accused? Are all the ladies travelling in the public transport system for going to their respective institutions, place of work and for other regular works, supposed to leave the services as per the said argument of the accused? The answer is simply "No" because the said argument does not appeal to the common sense which amount to say that a lady has either to travel in a bus or avail any other public utility services only on the condition of getting herself sexually exploited, otherwise she would meet the same fate as has been met by PW6 in the present case. SC No.54/10 Page 21/32
22. Next contention raised on behalf of the accused was that PW6 did not raise any alarm while she was being abducted in the said Zen car. For the sake of argument, but not holding so, even if the PW6 had gone along with the accused with her consent, was the accused justified in doing that whatever has been done with PW6. Again the answer is in negative. Alone girl while put in such a situation may not have dared to raise the alarm and which is true also that she was taken at such a deserted place ultimately where she was treated with the said cruel manner by the accused and even her raising of alarm in the said situation would not have helped her.
23. Now I shall discuss with regard to the manner in which the investigation was conducted in the present case. The contention raised on behalf of the accused is that no such allegation against the police was raised by the PW6 or her family members at the earliest point of time and she also signed her statement in English which is Ex.PW7/E and on the other hand, Ld. Addl. PP has submitted that it is the deposition of the witness before the court which is taken into consideration only as PW6, whose family is a Kashmiri migrant, belonging to a poor strata of society, could not have any control over the investigation agency and the continued treatment of PW6 in the hospital and her remaining in the hospital had given her or to her family members no chance for protesting against the wrong recording of her statement by the IO.
SC No.54/10 Page 22/32
24. I find a considerable force in the submission made by the Ld. Addl.PP in this regard. During the investigation, the law recognizes recording of statements only in three forms. The first is the statement of the complainant or the witness or the victim or the complainant in law, as it is called sometimes in technical sense of the term, on the basis of which FIR is registered and machinery of the criminal law is set into motion and the said statement is required under the law to be signed by the person making the same. Second manner is by way of Section 161 Cr.PC and it is not required to be signed by the person making it under the law and as per command of Section 162 Cr.PC, it is to be used only for confronting a witness in his/her cross examination and not for corroborating the deposition of the witness before the court. Third form of statement is one which is recorded by a Magistrate u/s 164 Cr.PC when the Oath may be administered to the person making it and it may be required to be signed by the said person. But again, as per command of Section 162 Cr.PC, the said statement u/s 164 Cr.PC is not on any higher footing because the same can also be used only for confrontation and not for corroboration. From this point of view, I failed to understand as to how and under which provision of law Ex.PW7/E was got signed from PW6 by the IO of the case as Ex.PW7/E was neither a statement, on the basis of which the FIR was registered, nor it was statement recorded u/s 164 Cr.PC and if it was a statement SC No.54/10 Page 23/32 u/s 161 Cr.PC, as to why it was got signed from the PW6, particularly in view of the fact that a separate statement, unsigned, u/s 161 Cr.PC of PW6 is on the judicial record and admittedly recorded by the said IO.
25. From the said circumstance, it seems that IO was bent upon spoiling the case of a girl belonging to a poor strata of the society and not in a position to defend herself or allege anything against the said conduct of the IO and moreover, Ex.PW7/E seems to be a fabricated statement also which is visible to a naked eye if we go by the document Ex.PW7/E which depicts that said PW6 Ms. Monica signed the same in a vertical direction and that too after a considerable gap of more than two inches from the place where the writing of the said statement ends and as such, the said document Ex.PW7/E does not inspire any confidence and corroborates the deposition of PW6 that her wrong statement was recorded by the police whereby she was allegedly shown in love with the accused or she voluntarily accompanied the accused in a three wheeler to the said premises where she was attempted to be killed.
26. Further, no portion of the said deposition of PW6, which was deviating from her previous statement recorded u/s 161 Cr.PC or for the sake of argument even in Ex.PW7/E, was confronted to her during her cross examination and as such, whatever she deposed SC No.54/10 Page 24/32 before the court cannot be taken to be an improvement or contradictory to her previous statement which was the most common and only available method known to the law to show the material improvement or omission in the deposition of a witness before the court.
27. It has been further contended half heartedly that injuries on the person of the accused were not explained but this contention is against the cross examination on behalf of the accused of the IO, PW7, when the IO replied in answer to a question that the reason for injury received by accused is mentioned by him as per narration of the accused in his disclosure statement Ex.PW4/A and as such, the deposition of the IO, with regard to explanation of the injury received by the accused, has remained unchallenged on the record which also rules out the story of the accused with regard to presence of Dr. Vinod and his associates causing injury to both of them, as alleged by the accused. The reason was, as per Ex.PW4/A, that the accused fell down on the one side after looking at the blood and his left wrist fell on the said Dau (the meat chopper) and he received injury in this process and he also suffered injury on his chin while falling. No suggestion was thrown on behalf of the accused against this reason given in answer by the IO of the case.
28. It has been further contended that there is no content in the SC No.54/10 Page 25/32 letters exhibited on the record by PW6 with regard to threat extended to her. On the other hand, Ld. Addl. PP has pointed out a letter Ex.PW6/B1 wherein it is mentioned by the accused that either he would kill himself or would kill another and in the letter Ex.PW6/B3, the accused has also admitted to have lost his mental balance and he was having only one thing in the mind either to kill himself or kill her (PW6) but it was not acceptable to the God.
29. The very act of writing these letters to a girl, who was in such a traumatic state of mind after the incident that she even started shivering with fear when the said meat chopper (Dau) was shown to her for identification before the court during her deposition, amounts to extending threat in the same manner as if mere presence of a lion in a jungle is sufficient for the threat on his behalf to the herbivorous of the jungle. Receiving the said letters, in such an insecure atmosphere where certainly the machineries of law in the form of police was not helping her nor she was in such a socio economic position to feel safe, even at the time when the accused was in judicial custody, certainly was extending of threat to her and criminally intimidating her by the accused.
30. Neither the photographs Ex.PW6/A1 to A4 depicting her injuries and situation after treatment nor the said letters Ex.PW6/B1 to B3 and the envelopes Ex.PW6/B4 and B5 could be rebutted on SC No.54/10 Page 26/32 behalf of the accused which go to corroborate the version as deposed by PW6. Her MLC further corroborates the manner and extent of injuries she received injuries at the hands of the accused and the Dau (meat chopper) as exhibited and identified by the PW6 was the unquestioned weapon used by the accused in the commission of the offence. There is otherwise no reason to disbelieve the deposition of PW6 which is consistent, rational and trustworthy also. Hence, the accused is held guilty and is convicted for the offences u/s 307/506 IPC.
(Announced in the open court on 24.11.2011) (RAKESH TEWARI) ASJ06(OUTER) ROHINI COURTS, DELHI SC No.54/10 Page 27/32 IN THE COURT OF SH. RAKESH TEWARI ASJVI(OUTER), ROHINI COURTS, DELHI SC NO.54/10 FIR NO. 62/07 U/S 307/506 IPC PS Uttam Nagar Unique Case ID No. : 02404R0003792009 State Vs. Mahman Singh @ Monu s/o Sh. Jai Singh r/o WZ27A, Mahesh Vihar, Om Vihar Phase II, Uttam Nagar, Delhi.
ORDER ON SENTENCE
Present : Ld. Addl. PP for the State.
Sh. Rajender Sharma, Ld. Counsel for the convict.
1. Heard on the point of sentence. It has been submitted by the Ld. Counsel for the convict that convict is a married person whose marriage took place in the end of 2009 after he was granted bail in the present case and he is having a minor child who is 9 or 10 months old at present and a wife and old mother of 70 years to be looked after by him as he is the only earning member of the family. It has been further submitted that he has regularly attended the court SC No.54/10 Page 28/32 during trial and as such, a lenient view may be taken.
2. On the other hand, Ld. Addl. PP has submitted that the victim girl has been reduced to a living corpse by the act of the convict and she has become a permanent patient of the depression and in view of the said conduct of the convict, he deserves the severest punishment and should not be dealt with any leniency.
3. The case proved on record and as has been put in the defence is that of alleged love affairs between the convict and the victim though it has been denied by the victim in total.
4. Love and sacrifice are the two sides of the same coin but I know that I am crying in wilderness or to use a Hindi proverb in its English translation that there is no use playing a flute before the buffalo as I know that the convict has no framework of mind to understand the said human emotions.
5. From the ghastly act of violence which he has committed with the victim, the convict is a sadist of third degree, a psychopath and sexually perverted beast and he can go to any extent with this state of affairs of his mind to do any wrong either to himself or to the members of the society. The brutal manner in which he inflicted the meat chopper on the person of the victim that she has been reduced to a balloon of the iron smith just breathing devoid of any life SC No.54/10 Page 29/32 because the word "life" includes all its trappings and which include the daily pursuits of the life by a person. The convict did not stop here as he has no remorse or repentance even thereafter he continued to write the letters from the judicial custody in jail to the house of the victim so as to create a terror in the mind of the victim. The presiding officer of this court has the occasion to observe the demeanor of the victim as a witness when the meat chopper was put to her for identification by the prosecution, she started shivering with fear and wanted to move her head to the other side but due to the injuries suffered by her, she could not do so.
6. From the point of view of the victim, this court must not be misunderstood to be cursing the victim when it comes to the judicial conscience that it would have been a better circumstance if the victim would have died after receiving the said injuries because in that event, her relatives would have mourned her death once for all but now they have been thrown into such a situation where they are daily mourning the said living corpse. God knows when she is going to be treated fully and as to when she would come out of her depression and all the human values for her were shattered by the conduct of the convict when she deposed that she was begging and praying for mercy before the convict to spare her and refused to marry him as the convict was of the age of her father, but over possessive convict wanted to grab all the best things in his life SC No.54/10 Page 30/32 irrespective of thinking about his own stature, status and station in the life and he gave blows to the victim against her refusal to succumb to his over possessive and perverted desires.
7. From the point of view of the society, in a metropolitan city like Delhi where thousands of girls, females, women are going for their respective place of education, place of work and to market places for their routine work, their lives will be in danger if such kind of convicts are shown with leniency or are set free after some time of confinement in the jail because admittedly the convict was driving a bus, a public utility service, and by showing any leniency to him, a wrong message will go into society that any girl or female can use the public utility services only if they are ready for their sexual exploitation by the persons who are concerned with providing the said public utility service.
8. From the above said discussion, I have no hesitation in mind in arriving to a conclusion that the convict does not deserve any leniency in the circumstances of the case and as he did cause the injury to the victim, that is why, he is sentenced to undergo life imprisonment and he is sentenced to pay a fine of Rs.2 lacs also and in default of payment of fine he shall further undergo SI for a period of three years for the offence u/s 307 IPC and he is further sentenced to undergo RI for a period of seven years and to pay further a fine of SC No.54/10 Page 31/32 Rs.50,000/ for the offence u/s 506 IPC and in default of payment of said fine convict is further directed to undergo SI for a period of six months. Both the said sentences shall run concurrently. The convict is also extended benefit u/s 428 Cr.PC.
9. Out of the said amount of fine, a sum of Rs.2 lacs shall be paid to the victim namely Ms. Monica, after the expiry of period of appeal/revision etc, although I am of the considered opinion that this amount cannot be termed as "compensation" for her loss or injury caused by the said offence but as the fine is to be imposed with due regard to the socio economic status of the convict, I have awarded the said compensation as a token to compensate her for her loss and injury suffered by the victim.
10. A copy of this order as well as order convicting the convict be given free of cost to the convict forthwith. The file be consigned to the Record Room.
(Announced in the open court on 24.11.2011) (RAKESH TEWARI) ASJ06(OUTER) ROHINI COURTS, DELHI SC No.54/10 Page 32/32