Delhi District Court
State vs . 1) Rajesh @ Babloo S/O Pal Singh on 15 February, 2012
1
IN THE COURT OF SHRI H.S.SHARMA:DISTRICT
JUDGE/ ADDL SESSIONS JUDGE, NEW DELHI
Unique I D No. 02430R0050312007
S.C. No. 18/07/2010
State Vs. 1) Rajesh @ Babloo S/o Pal Singh
R/o B123, Rajendra Farm,
Chhattarpur Enclave
New Delhi
2) Monika D/o Pal Singh
R/o B123, Rajendra Farm,
Chhattarpur Enclave
New Delhi
FIR No. 620/2006
PS Mehrauli
U/s 302/120B/34 IPC
Present: Ms Usha Maan, Ld. Chief PP for the State.
Sh. K K Manan, Advocate for the accused.
Date of institution of the case : 02/01/2007
Date on which it was received in this court : 26/04/2007
Date of hearing arguments : 31/01/2012
Date of announcement of judgment : 15/02/2012
J U D G E M E N T:
1 Accused Rajesh is the brother of accused Monika. DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 1 of 63 2 2 Ms Renu ( hereinafter "the deceased") was a student of B.A. Accused Monika was her friend. 3 The deceased used to reside in house No. 119/3 Rajender Farm, Chhattarpur Enclave, New Delhi. Accused used to reside in the same gali, six houses away from the house of the deceased. They had shifted about 56 months prior to this incident.
4 On 5.9.2006, the deceased had received a telephonic call from accused Monika at 9.30 AM. On enquiry, the deceased had told her mother Smt Kamla Devi (PW1) that she was being called by accused Monika at her house. At about 11.30 AM, the deceased and her mother Smt Kamla Devi (PW1) were standing near a tree in front of their house. Accused Monika went to them. She (accused Monika) brought the deceased with her (Monika) to her house. 5 At about 12.30 PM Smt. Kamla Devi (PW1) was informed by her neighbour Smt Chanda that a murder had taken place in the house of Monika. Smt. Kamla Devi (PW1) then informed her son Ramesh (PW4). Ashok (PW2), another brother of the deceased was also informed on phone. He also rushed to the place of occurrence.
DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 2 of 63 3 6 At about 12.30 PM Ms Jyoti (PW44), younger sister of accused Rajesh, went to her house and knocked at the door of her house. Since the door was not opened , therefore, she went to the neighbour Smt Kamlesh (PW3). Robin (though described as PW47 yet given by the prosecution), younger brother of accused Rajesh also came there. The door was then forcibly opened by him, i.e. Robin (PW47). Robin (PW47), Ms Jyoti (PW44), Smt Kamlesh (PW3), Smt Kamla Devi (PW1), Ashok (PW2), Ramesh (PW4) Rakesh (Pw5) and other neighbours then entered in the room. They found the deceased lying in a pool of blood. Both the accused were also found in the room.
7 Rakesh (PW5) saw that accused Rajesh was holding a knife in his hand, next to his (Rajesh's) neck and was threatening to slit himself. He was also uttering that "he had killed Renu and he was going to kill himself". Rakesh (PW5) became nervous and came out.
8 Braham Parkash (PW8), who had also reached at the place of occurrence, on seeing the scene of crime had exclaimed as to who had committed the murder. Accused Rajesh had then opened his eyes and said that "he had DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 3 of 63 4 committed the murder". Braham Parkash (PW8), then realised that accused Rajesh was alive. Braham Parkash (PW8) had called the ambulance. When accused Rajesh was being taken by the officials of PCR, at that time also he (Rajesh) had admitted his having committed the murder. He was refusing to go to the hospital.
9 Accused Rajesh was also having injuries on his person.
10 The pillows (Ex. P1 and P2), slippers (Ex. P3), sword (Ex. P4), knife (Ex. P5), upper portion of chitkani (latch) (Ex. P6), CD (Ex. P7), danda (Ex. P8), pistol (Ex. P10) and live cartridges Ex. (P11A and Ex. P12), mobile phone Ex. P11 of the deceased bearing no. 9871352549 and mobile phone Ex. P12 no. 9312210725 which were found in the room, where the deceased was lying and the accused were present, were taken into possession after following necessary formalities i.e., preparation of sketches and sealing them in pullandas vide different memos Ex. PW 2/A, PW 2/B, PW 3/C, PW 2/D, PW 2/E, PW 20/D and PW 20/E. 11 Since an information that persons were lying in an injured condition in house No. 123, Rajender Farm, Chhattarpur DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 4 of 63 5 Enclave, New Delhi, had been received in PS Mehrauli from the operator, police control room, therefore, this information was recorded in DD No. 14A at 1.22 PM. Its copy Ex. PW22/B was sent to HC Mahender through Ct Arjun.
12 SI Jatan Singh (PW20), on receipt of the telephonic information, reached the place of occurrence. He found the dead body of the deceased lying in a pool of blood. Near the dead body blood stained sword and blood stained knife, live cartridges, hawai chappals, mobile phones, blood stained danda etc, were found. Since, no eye witness was found available and the family members of the deceased were quite shocked and were unable to state the facts, therefore, SI Jatan Singh (PW20) on the basis of his own observations, made endorsement Ex. PW20/A on Ex. PW22/B and sent it to the police station through Ct Arjun for registration of a case. In the endorsement it was also mentioned that Rajesh, who was present at the place of occurrence and was in an injured condition had been removed to AIIMS by the officials of PCR. 13 The earth control, a portion of the floor where the blood was lying, a small sized purse type bag and the blood which was lying there were seized. Application for loan Ex. PW DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 5 of 63 6 2/G and a few papers (Ex. PW 2/H , PW 2/J) which were found lying in the almirah were taken into possession vide memo Ex. PW 2/F. Two photographs (Ex. PW 2/R and PW 2/5) of accused Rajesh lying under the CD( Ex. P7) were taken into possession.
14 The blood stained clothes i.e., salwar Ex. P17 and kurta Ex. P18 of accused Monika were seized vide memo Ex. PW 20/C. 15 The room was searched. A bag was found lying there and from this bag three envelopes containing passport size photographs of accused Rajesh, two post card size photographs and four passport size photographs of the deceased were recovered. These were also taken into possession vide Ex. PW 38/B. 16 Two note books Ex. P35 and P36 were also found in the bag. These were taken into possession vide memo Ex. PW 38/C. Accused Monika had disclosed that the hand writing in those note books were of accused Rajesh. One mobile phone Ex. P13 make Nokia bearing no. 9899529477 belonging to accused Monika was produced by her. It was seized vide memo Ex. PW 20/F. Accused Monika had disclosed that her DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 6 of 63 7 brother Rajesh also sometimes used to make use of her phone. 17 The call details Ex. PW 23/A, PW 23/B and PW 26/D of these phones were collected. The call details indicated that deceased used to be contacted on her phone and the talks used to be for long time.
18 The post mortem examination on the dead body was conducted by Dr. Chiranjan Behra (PW36). The report was referred as mark 'X'. The statements of the witnesses were recorded. The sample hairs, nails of the hands and sample blood of the deceased were also taken vide memo Ex. PW 38/J. The blood stained clothes Ex. P14 to P16 of accused Rajesh were seized vide memo Ex. PW 34/C. The blood sample and hairs of he accused Rajesh were seized vide memo Ex. PW 22/C. Hair samples and blood sample of accused Monika were seized vide memo Ex. PW 22/F. 19 As per the prosecution, accused Rajesh had, after committing murder of the deceased, tried to commit suicide by causing injuries to himself therefore, an FIR No. 624/06 under section 309 IPC was also registered against him. 20 Since accused Monika had allegedly evaded replies to the material questions put to her and the replies given by her DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 7 of 63 8 to the questions as to why she had called the deceased; why the door of the room had been closed; why the music had been played; why she had not disclosed the commission of murder to any one; why the door of the room had not been opened in spite of the same having been knocked at continuously by her brother Robin and her sister Jyoti; why she had not switched off the VCD player; why she had not informed the police, and why she had not gone to her college, were not found satisfactory therefore, section 120B IPC was added. 21 Accused Rajesh had been taken to Bhagwat Nursing Home by his father Sh Pal Singh. After his discharge from Bhagat Nursing Home, he (accused Rajesh) was arrested on 5/10/2006 and was interrogated. His disclosure statement Ex. PW2/L was also recorded on 5/10/2006. 22 Accused Monika was counseled on 14/10/2006 by Doctor Rajat Mitra (PW 43). She had disclosed a few facts to Dr Mitra which showed that there were emotional relationship between the deceased and accused Rajesh. After interrogation, accused Monika was also arrested on 13/10/2006. Her arrest memo Ex.PW 22/D and personal search Memo Ex. PW 22/E were prepared.
DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 8 of 63 9 23 The specimen handwriting and signature Ex. P13 to P30 of accused Rajesh were taken for comparison with the handwriting and signatures available in the two note books Ex. P35 and P36. The same were sent to FSL. After completion of investigation, both the accused were challaned. 24 Both the accused have been charged under sections 120B r/w Sec. 302 IPC.
25 Accused Rajesh has also been charged under section 302 IPC and 25 Arms Act. The charges were framed on 12.6.2007 by my Ld. Predecessor.
26 Both the accused pleaded not guilty to the charges. 27 I have considered the submissions and gone through the file.
28 Smt. Kamla Devi (PW1) is the mother of the deceased. She has deposed the facts as mentioned in para 4 and para 5 of the judgement. She further deposed that there were some persons inside the house. She ( witness) entered in the room and found that the deceased was lying in a pool of blood. Her clothes were stained with blood. Accused Monika was sitting near the dead body of the deceased. Accused Rajesh was also present in the same room. He was also having DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 9 of 63 10 injuries on his body. The witness further deposed that the deceased had been killed by Rajesh and Monika ( accused). There were a number of injuries on the person of deceased. A blood stained sword, a blood stained knife, a blood stained gun and a blood stained danda were lying there. She came back to her house. Ramesh had informed the police. The police officials had recovered the weapons. She did not have any enmity with the family of the accused. Ex. PW1/P1 to Ex. PW1/P12 were photographs of the deceased. She does not know as to why the deceased had been killed by the accused. 29 Since a few ancillary facts had not been stated by the witness, therefore, she was crossexamined by Ld. Addl. PP. In the crossexamination she admitted those facts. 30 In the crossexamination conducted on behalf of the accused, the witness deposed that the deceased was working as an LIC Agent. She was, however, unable to state as to whom the mobile phone bearing no. 9871288785 belonged. She was unable to tell as to whether the deceased had been receiving calls or SMS messages of any person from the above phone. She was unable to tell as to whether the deceased and accused Rajesh had been removed to hospital simultaneously DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 10 of 63 11 or at different times. After reaching the place of occurrence with her son Ramesh, she had felt giddiness. Her son had removed her from there. She had gone to the STD booth and made a telephonic call to her son Ramesh. The work place of Ramesh was coverable in ten minutes. They had reached the place of occurrence at 1.00 PM. The photographs of the deceased had been taken by accused Monika. She had not returned the same as she wanted to retain them. 5 or 6 days prior to this incident, there had been a talk between her and the deceased that family members of the accused did not appear to be nice people and the deceased had told her that accused Rajesh was not a good man. The phone on which the deceased had received call from accused Monika belonged to the deceased. It was suggested to her that she had falsely deposed against the accused because she had been hurt due to death of her daughter.
31 There is no crossexamination with regard to the fact that accused Monika had telephoned the deceased at 9.30AM; that she had gone to the house of deceased to fetch her; that the deceased had accompanied accused Monika to her ( Monika's) house; that Ramesh was called by the witness; DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 11 of 63 12 that they ( Ramesh and the witness) had rushed to the place of occurrence and found that the deceased was lying in a pool of blood; the fact that accused were present in the room and the fact that the deceased was an LIC Agent.
32 Ashok Kumar (PW2) is brother of the deceased. He has deposed that on that date on receipt of telephonic call from Mr Sharma, he had rushed to the place of occurrence. He has also deposed the facts that weapons of offence and the articles which were lying there were also sized vide different memos. 33 The details of the articles have already been mentioned by me in the earlier part of my judgment. 34 This witness (PW2) has further deposed that accused Rajesh was interrogated and his disclosure statement Ex. PW2/L was recorded. Sketches of the weapons of offence were also prepared. He has proved the seizure memos of the articles Ex. P1 toP36. Ex. P13 to P30 are the specimen handwriting and signatures of accused Rajesh. The two note books recovered from the room are Ex. P35 and Ex. P36. 35 In the crossexamination, the witness denied the suggestion that his statement was not recorded on 5.9.06 or that his statements were recorded on 6.9.09. He denied the DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 12 of 63 13 suggestion that accused had not suffered any disclosure statement in his presence. Except these bald suggestion, the witness was not crossexamined with regard to the seizure of the articles, the specimen handwriting of the accused and two note books recovered from his room.
36 Ramesh (PW4) is another brother of the deceased. He has also deposed the facts as deposed by his mother Smt Kamla Devi (PW1)and his brother Ashok (PW2). Except a few bald suggestions, this witness was also not crossexamined with regard to other material facts.
37 Smt Kamlesh (PW3), Sh Rakesh (PW5, Smt Asha Devi (PW7) Sh Brham Dev Paswan (PW8), Smt Triveni Devi (PW10), Sh Rakesh S/o Sh Ram Loth Sharma (PW11) and Smt. Indra (PW12) are the neighbours of the deceased and the accused.
38 Smt Kamlesh (PW3) has deposed that on hearing the loud noise, she came out of her house. Jyoti had been repeatedly knocking at the door of her house. Thereafter she (Jyoti) had come to her ( witness) and she had served her with a glass of water. Since she did not state those facts, which had been stated by her before the police, therefore, she was cross DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 13 of 63 14 examined by Ld. Addl. PP. She denied the fact that the deceased had been taken by accused Monika to her house or that she had shut the door from inside. She admitted that music had been started at that time. The door had not been opened in spite of the same having been knocked at by Jyoti. She was to depose that Robin, Jyoti and another boy were told to break open the door and Robin had hit the door and it was opened. She deposed that she had not entered in the house. 39 She (Smt Kamlesh (PW3)) was however, not cross examined at all on behalf of the accused. 40 Rakesh (PW5) has deposed that on that date he was standing at the ration shop. At about 12.30Noon, Jyoti younger sister of accused Rajesh had come and knocked at the door of their (Jyoti's) house but the same was not opened. Kamlesh, another neighbour had told Jyoti to come to her house. Jyoti had gone to the house of Kamlesh and had had a glass of water. The door was still not opened. Robin, the younger brother of accused Rajesh had come and had also tried to get the door opened by knocking it. However, it was of no avail. Robin had tried to get into the house through roof of his neighbour but the door of the roof was also closed. DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 14 of 63 15 Thereafter, Robin had come out and forced open the main door by kicking it. Robin and Jyoti had then gone inside the house and came out shouting. In the meanwhile, persons present in the lane had gone in the house and found dead body of Renu. He had also gone there. Renu was having serious stab injuries caused by sword. The sword was lying nearby. Accused Monika was also present in the room. Accused Rajesh was present there and was holding a knife in his hand next to his ( Rajesh's) neck and was threatening to slit himself. He (accused Rajesh) was also saying that he had killed Renu and he was going to kill himself. He ( witness) became nervous and came out. The police officials had come and started investigation. His statement was recorded on 6.9.2006. 41 In the crossexamination, he has deposed that when he had first reached in the house where the incident had occurred, the door was found open. He denied the suggestion that accused Rajesh was not conscious on the date of incident or that he was not holding the knife or that he had not threatened to slit himself or that he had not uttered anything. 42 Asha Devi (PW7) did not support the prosecution, in its entirety. She deposed that a boy and woman from her DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 15 of 63 16 neighbour had knocked at the door. They wanted to go to their house through her roof as door of their house was not opening. The boy had gone to his house through her roof. He came out from her house. Thereafter she went inside the room where blood was lying. She came back to her house. 43 In the crossexamination of Ld. Addl. PP, she admitted that Robin ( brother of the accused) and Triveni had come to her house and Robin had gone in the house of accused Rajesh. She also deposed that the deceased and the accused Rajesh were lying in the room. Since this witness did not support the prosecution, therefore, she had been confronted with her previous statement, including the marked portions, mentioned in her statement.
44 Brham Dev Paswan (PW8) has deposed that he is an LIC Agent. On that date, he had come to his house at about 1.00PM to take lunch. On hearing noise, he had gone to the house where the deceased had been murdered. He went inside the house. Sister of accused Monika was crying in the room. Accused Monika was sitting next to her sister. Her clothes were blood stained. Renu was lying dead in the small room. Accused Rajesh was also lying near the deceased. Accused DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 16 of 63 17 Rajesh appeared to be asleep. He ( witness) had exclaimed as to who had committed the murder. Accused Rajesh had opened his eyes and stated that he had committed the murder. He (witness) then realised that accused Rajesh was alive. He (witness) came out and called the ambulance from his mobile phone. The police officials had also reached there. He had taken the police officials inside the room and showed them the scene of incident. Before the PCR officials, accused Rajesh had admitted his having committed the murder. He (accused Rajesh) had also stated that his statement be recorded as he was not likely to survive. The witness further deposed that one sword, a knife, and a desi katta were lying there. A danda with copper wire on it was also lying there. 45 In the crossexamination, the witness deposed that no one from the family members of accused Rajesh had assisted them (witness)in putting accused Rajesh in the PCR. He had not seen brother of accused Rajesh. He had not seen accused Monika and her other sister in the room. He had remained there for about 20 to 30 minutes. He denied the suggestion that accused Rajesh was unconscious or that he ( witness) was not present at the scene of incident. He also DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 17 of 63 18 denied the suggestion that accused Rajesh had never opened his eyes and had not stated anything.
46 Smt Triveni Devi (PW10) has deposed that she was standing on the road outside her house. She heard a music deck being played inside the house of Pal Singh. It is clarified that Pal Singh is father of the accused.
47 The witness further deposed that at that time ( 12.00 Noon), Robin and Jyoti were banging their door and were shouting, "Monikaopen the door". Another boy was with Robin and Jyoti. Robin then enquired from her as to whether he should get in to his house through the adjoining house of Asha Devi. She advised him to do so. Robin had then gone to the house of Asha Devi. He went to the roof of house of Asha Devi. He came down and told the other boy in her presence that the door from the roof was locked. He (Robin) thereafter kicked the door of his house and went inside his house. She alongwith 3 or 4 other neighbours had also gone in side. They had heard Jyoti shouting. She had seen the blood lying there. She became nervous and came out. She had seen accused Rajesh and deceased Renu lying on the floor of the room where the blood was lying. Accused Monika was also present DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 18 of 63 19 in the room.
48 In the crossexamination, the witness deposed that she entered the house after two minutes of its being forced open by Robin. Her statement was recorded by the police. She admitted the suggestion that when she entered the room, accused Rajesh was lying on the floor. She was unable to say whether he was conscious or unconscious. She denied the suggestion that accused Monika was not inside the room or that she had deposed falsely.
49 The witness was not crossexamined with regard to the facts that Robin, and Jyoti were banging the door; that Robin had gone to the house of Asha Devi; that from the roof of house of Asha Devi he had gone to his house; that Robin had told that the door of the roof was locked and he had kicked open the door of his house.
50 Rakesh (PW11) has also deposed the facts that he had gone inside the house. He had enquired from accused Rajesh as to what had transpired on which accused Rajesh had told him by gesture that he had killed the girl. He had also indicated that he had inflicted injuries to himself. 51 In the crossexamination, the witness has deposed DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 19 of 63 20 that he had remained there for about 1 ½ hours. He admitted that when he had hone inside the house, door of the room was open and many persons were going in and coming out. He denied the suggestion that accused Rajesh was unconscious or that he had not uttered any word.
52 Indra (PW12) has deposed that on that date, at about 12.00 Noon, she was at her telephone booth. When she had peeped out, she noticed that Jyoti was knocking at door of her house, which was near her house. Since nobody had opened the door, she ( Jyoti) had come to her booth and tried to make a phone call which was not answered. Thereafter, she had gone to her house. In the meanwhile, Robin ( brother of Jyoti) came and joined Jyoti in knocking at door of their house to get it opened. Robin then went to the adjacent house and went to the roof. He came back. He then kicked on the main door of his house, which had opened. Robin alongwith her sister Jyoti and other persons from the public then went inside his house. Robin came to her booth and tried to call the police but did not succeed.
53 Not even a single question was put to this witness in the cross examination.
DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 20 of 63 21 54 Chhote Lal (PW9) has deposed that he used to reside in the neighbourhood of the accused. Twenty days prior to 6.9.2006, accused Rajesh had called him to his house and showed him ( witness) a newspaper clipping which had had an advertisement that government was giving some grants/loan to handicapped. Accused Rajesh requested him ( witness ) to enquire about the scheme from the MLA of the area. He (witness) informed accused Rajesh that he had recently shifted to this house. He (witness) enquired from accused Rajesh as to whether he had any proof of residence. He had told accused Rajesh that he would not be able to get any loan till he (accused Rajesh) had any proof of residence. 55 Manoj Kumar (PW14), is the cousin brother of the accused. This witness has deposed that on 5.9.06, he, his family members and Robin had assembled at 10.30/11.00AM to go to Gurgaon for bereavement on account of death of his brother's bua. Since there was paucity of space in the TATA Sumo, therefore, his father had told him to come with Robin on his motorcycle. Robin was having a motorcycle but there was one helmet, therefore, they had decided to go to the house of Robin to take another helmet. On reaching the house of Robin, DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 21 of 63 22 motorcycle was parked outside his house. He had stood in the shade outside the house. Robin had knocked at the door but no one had opened the door. Sound of music deck was coming from inside. Robin kept on knocking at the door for sometime. Public had gathered. When door was still not opened, Robin went to the roof of his house through the house of neighbour and tried to enter his house, but could not do so. He came down and kicked open the door and went inside. He ( witness ) also followed him. They had barely entered into the main gate when he saw Robin standing in the hall outside the room and shouting--Khoon, Khoon. He rushed to STD booth. He (witness) also followed him (Robin). Robin tried to call the police but without success. He (Robin) asked him (witness) to call the police. He (witness) was finally able to call the police. He had gone inside the house of Robin for the first time on that date. Thereafter, he and Robin had left on the motorcycle for Gurgaon with only one helmet.
56 Since the witness was to depose other facts and he had resiled, therefore, he was crossexamined by Ld. Addl. PP. He was duly confronted with his previous statement including the marked portions. However, this witness was not cross DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 22 of 63 23 examined at all on behalf of the accused. 57 Smt. Vibha Devi (PW30) has deposed that on that date at about 12.30 PM, she had come out of her house and saw that many people were banging at the door of accused Monika, which was opposite to her house. The younger brother of accused Monika was banging at the door and was saying
--"darwaja kholo Monika". None had opened the door. The brother of accused Monika had forced open the door. Thereafter he ( brother of accused Monika ) and Jyoti ( sister of accused Monika ) had gone inside the house. The public had not accompanied them inside. Thereafter, they had heard shouts of Jyoti from inside. She (witness) alongwith other neighbours then immediately rushed inside the house and found the deceased in a pool of blood. She also saw accused Rajesh lying in pool of blood near the deceased. She also saw accused Monika sitting on the floor. Thereafter she came out. 58 Since the witness was to depose a few more facts, and she did not state those facts, therefore, she was cross examined by Ld. Addl. PP. In the crossexamination of ld. Addl. PP, the witness has deposed that she had only seen the face of the deceased and immediately came out. Therefore, DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 23 of 63 24 she cannot say as to whether she was lying in a pool of blood. She had seen the face of accused Rajesh only and therefore she cannot say as to whether he was also lying in a pool of blood. The witness, however, admitted that clothes of accused Monika were having blood on them.
59 In the crossexamination of accused, the witness deposed that she had gone inside the house after about 5 minutes of the door having been forced open. There were many people outside the door. It was not suggested to her that door was not forcibly opened. Other facts were also not challenged.
60 Gulab Chand (PW31) is father of the deceased. He has deposed that mobile phone no. 9871352549 was in his name. He had given this phone to the deceased for using it. The witness further deposed that his daughter (deceased) used to go to the house of accused Monika. The family members of accused Monika had shifted to their colony about 3 months prior to this incident. On 5.9.2006, accused Monika had called the deceased and taken her to her house. He (witness) had left for his duty at about 9.30 AM. At about 11.30 AM/11.40 AM, on receipt of information that his daughter had been murdered, DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 24 of 63 25 he rushed to his house and found the deceased lying near the door of the house of accused. The clothes of accused Monika were blood stained. She was sitting on the floor. In the cross examination, the witness was confronted with his previous statement Ex. PW 31/DA where the facts except the phone being used by deceased were not mentioned. 61 Jyoti (PW44) is sister of the accused. She was to depose about the forced opening of the door. However, she for obvious reasons did not support the prosecution and was crossexamined by Ld. Addl. PP, without any success. However, she admitted that the blood stained clothes of accused Monika were got taken off from her person with her help and the same were seized by the police vide memo Ex. PW20/C. She further admitted that one mobile phone was seized vide memo Ex. PW20/F. She deposed that "chitkani" of the door was not taken in possession in her presence. 62 In the cross examination of the accused, this witness accepted the suggestions given to her. She admitted that on that date she and accused Monika had left the house at about9.15 AM. Accused Monika had accompanied her to purchase books. Since the market was closed, therefore, DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 25 of 63 26 accused Monika had accompanied her to the institute. They had reached the institute at 10.15 AM. Accused Monika had remained with her through out, at the institution. From the institute, they had returned to their house at 12.30 PM. When they reached their house and opened the door, she did not hear any music. It was not being played. The door was not bolted from inside. Her brother Robin had not given any kick blow to open it. When they entered inside the house, they had seen blood in the second room. They were scared. Accused Monika went inside the room. She lifted the injured ( her brother). He was unconscious. He was not speaking. No outsider had entered inside the room. Officials of PCR had reached there and had demanded screw driver from her. They had opened the "chitkani". The polcie officials had taken her signatures on some blank papers.
63 Robin (PW47) was given up by the Ld. Addl. PP after his (witness's) name and other particulars had been recorded on 5.8.2010.
64 ASI Satbir Singh (PW6) has deposed that on that date, on receipt of rukka, he had registered FIR No. 620/06 vide DD no. 18A. The original rukka and copy of FIR were DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 26 of 63 27 handed over to Ct Arjun. The copy of FIR was sent to the senior officers and to the concerned Magistrate through special messenger. Copy of the FIR is Ex. PW6/A and copy of DD no. 18A is Ex. PW6/B. 65 Dr Amit Aggarwal (PW13) has deposed that on 18.9.2006, accused Rajesh had been brought to his hospital from AIIMS by his father where he (accused Rajesh) had already undergone tracheostomy and laprotomy at AIIMS. The witness further deposed that laprotomy is done by opening the abdomen to see if there is any internal injury and for repairing the injury, if any, as the patient was having stab wound dihiscence, i.e. the stitches of the abdomen had opened up. Patient was given nursing care. He was finally discharged from the hospital on 5.10.2006. The discharge/treatment card is Ex. PW13/A. During the period from 18.9.06 till 2.10.06, the police officials had moved applications for permission to record statement of accused Rajesh but he (accused Rajesh) was not in a fit condition to give statement. The applications are Ex. PW13/B to Ex. PW13/F. The patient was in a position to speak only one day prior to his discharge.
66 In the crossexamination, the witness deposed that DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 27 of 63 28 the injuries suffered by accused Rajesh were dangerous in nature. The patient was unable to speak as he had come to the hospital with tube inserted in trachea. He (witness) was unable to say as to whether patient could speak after he suffered the injuries.
67 Insp. Vinod Pal (PW14)was Incharge of Crime Team. He had gone to the place of occurrence. In his presence Ct Dinesh (PW15) had taken photographs Ex. PW1/P1 to PW12 and Ex. PW15/P13 to Ex. PW15/P20. The witness had prepared his report Ex. PW14/A. 68 Ct Jagniwasan (PW16) has deposed that he had taken six sealed envelopes from the duty officer and handed over the same to the senior police officers as well as to the concerned M.M. 69 Sh Jyotish Moharana, Nodal Officer (PW17) has proved the call details of phone No. 9899529477 for the period from 1.4.2006 to 15.9.2006. The same are Ex. PW17/A. Copy of the application form for issuance of the mobile number is Ex. PW17/B. Copy of the D/L is Ex. PW17/C. It is clarified that phone number 9899529477 was in the name of one Shahid Ali. The application form Ex. PW17/B has photographs of Shahid. DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 28 of 63 29 The photostat copy of the D/L, (Ex. PW17/C) is also of Shahid Ali. I would like to clarify that this phone Ex. P13 had been produced by accused Monika on 5/5/2006 and was seized vide memo Ex. PW 20/F. 70 Ct Mahesh (PW18) has deposed that on 5.9.06, he had joined the investigation. At about 5.00 PM, he was given a letter by the IO. He had accompanied the dead body to AIIMS mortuary for getting it preserved for postmortem examination. 71 SI Jatan Singh (PW20) is the IO. He was simply suggested that nothing was recovered in his presence. 72 Ct Dharmender Singh (PW21) had taken the sealed exhibits from MHC(M) and deposited the same in the office of FSL.
73 Ct Hemant (PW22) had joined the investigation with the IO.
74 Sh R K Singh, Nodal Officer (PW23), has proved call details of mobile phone no. 9871352549 w.e.f. 1..4.2006 to 5.6.2006 and from 15.8.2006 to 5.9.2006. The same are Ex. PW23/A and Ex. PW23/B respectively. I would like to clarify that this phone belonged to the father of the deceased and he had given it to the deceased for using it. It was seized from the DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 29 of 63 30 place of occurrence.
75 SI Mahesh Kumar (PW24), had prepared the site plan Ex. PW24/A on scale on 15.11.2006. He had, on the instructions of the IO, gone to the place of occurrence on 15.10.2006 and prepared the notes, on the basis of which, scaled site plan Ex. PW24/A was prepared. This witness was not crossexamined at all.
76 Anurag Sharma (PW25) is the handwriting expert. He had compared the specimen handwriting S1 to S18 of accused Rajesh with the questioned handwritings found in the two note books Ex. P35 and P36. His detailed report is Ex. PW25/C. The questioned documents (handwriting and signatures Q1 to Q42) and the specimen handwriting S1 to S18 are collectively Ex. PW25/B. In the questioned handwriting Q21 which is in the handwriting of accused Rajesh, it has been mentioned in the last lines--"Hamain tum se pyar kitna ye hum nahin jaante magar jee nahin sakte tumarey bina". This is dated 11.4.2006. As per the report Ex. PW25/A, the person who had written S1 to S18 had also written Q1 toQ3, Q5 to Q7 and Q9 to Q23. Q41 and Q42 are the signatures of accused Rajesh on the suicide notes DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 30 of 63 31 Q22 and Q23. This witness was not crossexamined at all. 77 Sh.Dheeru Nigam (PW26), Legal Executive Reliance Company Ltd, has proved the call details Ex. PW26/D of mobile phone no. 9312210725 w.e.f. 1.8.2006 to 4.9.2006. This phone had been issued in the name of Sh Pal Singh ( father of the accused). The copy of the application form is Ex. PW26/A. Copy of the I. Card and ration card of Pal Singh are collectively Ex. PW26/B. 78 Dr K C Vashney (PW27), Assistant Director, FSL, Rohini, Delhi had examined the country made pistol Ex. P10 and the live cartridge Ex. P11A. His detailed report is Ex. PW27/A. As per this report, the country made pistol was not found to be in working order in the condition in which it was examined by him. The pistol and the cartridge were opined to be fire arm and ammunition respectively, as defined under the Arms Act.
79 Sh N S Bundela, DCP (PW28), has proved the sanction (Ex. PW28/A) under section 39 of the Arms Act to prosecute accused Rajesh under section 25 Arms Act. 80 HC Jai Prakash, (PW29) has deposed that on 5.10.2006, he had received an information from Dr. Amit Gupta DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 31 of 63 32 of Bhagwati Hospital that accused Rajesh, who had been admitted in the hospital by his father was fit to make statement and was being discharged. He recorded this information in DD no. 15A, copy of which is Ex. PW29/A. 81 Sh Sunay Mahesh, Senior Resident, AIIMS (PW32) has proved the fact that on 14.10.2006 Dr Mehta had examined accused Monika vide MLC Ex. PW32/A. 82 Lady Const. Amita (PW33) and Ct Hemant (PW22) had joined investigation with Insp. Atul Kumar on 13.10.2006 when accused Monika was arrested and interrogated. In her presence statement Ex. PW22/G of accused Monika was recorded. On 14.10.2006, she had taken accused Monika to AIIMS for her medical examination.
83 ASI Lala Ram (PW34) had, on receipt of information, rushed to the place of occurrence and had reached there at about 1.40 PM. He deposed that accused Rajesh had disclosed that he had killed the girl Renu. A sword, a knife, a katta, cartridge and other articles were lying there. Accused Rajesh had asked them (witness) to record his statement about his having killed the deceased and having caused injuries to himself. In the meanwhile, SI Jatan Singh had also reached DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 32 of 63 33 there. The clothes of accused were having blood stains. On being informed about admission of accused Rajesh in AIIMS hospital, he had gone there and collected MLC Ex. PW34/B of accused Rajesh. He was unfit to make statement. On the basis of DD No. 16A ( Ex. PW34/A) a separate case vide FIR No. 624/06 under section 309 IPC was registered against accused Rajesh. That case was investigated by him. 84 ASI Kamal Chand (PW35) was posted as ASI in PCR. He was Incharge of PCR Van. On receipt of information about this incident, he had reached the place of occurrence. He further deposed that on enquiry by ASI Lala Ram, the injured had stated that he was in love with Renu and had killed her. He was given the suggestion that whatever had been deposed by him in his chief was correct. The witness admitted the suggestion.
85 These facts have also been deposed by HC Satya Narayan (PW37).
86 Dr Chittaranjan Behra, Asstt. Professor, Forensic Medicines, Maulana Azad Medical College, New Delhi (PW36) had on 6/9/2006 conducted postmortem on the dead body of the deceased vide postmortem no. 1256/06. DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 33 of 63 34 He had found the following injuries:
1) Stab would of size 3 x .5 cm, muscle deep present over the supraclavicolar fossa.
2) Stab wound of size length 11 cm, gaping 2 cm, muscle deep, horizontal present over the epigastrium.
3) Stab would of size 2.7 x 1 cm, muscle deep present over left hypochondrium, 2.5 cm left to mid line, 17 cam below left nipple.
4) Stab wound of size 2 x 1 cm, vertical placed, muscle deep, present over abdominal wall, 1 cam below and left to umbilus.
5) Stab would of size length 5 cm, gaping 4 cm, shape mentioned in the diagram of the postmortem report present over right hypochondrium, 4 cm lateral to mid line, 10 cm blow right nipple, on dissecting the wound, the tract goes in upward and right direction cutting the skin, subcutaneous tissues, muscles, then entering to the abdominal cavity, cutting the left anterior part of the liver.
6) Stab wound of size 3 x .75 cms present over the right hypochondirum, .5 cm lateral to injury no. 5, horizontally placed, muscle deep.
7) Stab wound of length 5 cm, gaping 4 cm, horizontally placed over the right abdominal wall at the level of umblicus, cavity deep, 8 cm lateral to mid line, entering into the right DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 34 of 63 35 kidney.
8) Stab wound of length 3 cm, gaping .5 cm, muscle deep present over the right side of the abdomen, .5 cm lateral to injury no. 7.
9) Stab wound of size 2 x .5 cam present over the right illiac fossa, horizontal, muscle deep 7 cm, lateral to mid line.
10) Stab wound of size 3 x .5cm present over the right illiac fossa, horizontally placed, muscle deep, .5 cm below injury no.
9.
11) Stab wound of size 2.5 x .5 cm, 1 cam deep, present over right breast, .5 cm below and right to right nipple.
12) Stab wound of size 2 x 1 cm, obliquely present over right lower lateral chest wall, 5 cm lateral to mid line, cavity deep, entering to right lower lobe lung.
13) Stab wound of size 4 x .5 cm, present obliquely over right lower lateral chest wall, 1 cm below injury no. 12, muscle deep.
14) Stab wound of size .5 x .5 cm present over right lower lateral chest wall, .5 cm below the injury no. 13, muscle deep.
15) Stab wound of size 2.5 x 1.5 cm, muscle deep, vertically rd placed over medial aspect of right arm in middle 1/3 .
16) Stab wound of size 3 x 1.5 cm, muscle deep, vertically rd placed present over medial aspect of right arm in lower 1/3 . DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 35 of 63 36
17) Stab wound of size 5.5 x 4 cm, muscle deep, present over right cubital fossa.
rd
18) Stab wound of size 6 x 4 cm, present over lower 1/3 of right arm in lateral aspect, vertically placed, muscle deep.
19) Stab wound of size 2 x.5 cm, present over right olecranon process, muscle deep.
20) Stab wound of size 4 x 3 cm, muscle deep, present over rd right forearm medial aspect in upper 1/3 .
21) Stab wound of size 2 x .5 cm, muscle deep, present over rd right forearm medial aspect in upper 1/3 1 cm below injury no.
20.
22) Stab wound of size 2.5 x 1 cm, muscle deep, present rd over right forearm medial aspect in upper 1/3 cm lateral to injury no. 21.
23) Stab wound of size length 6 cm, gaping 3 cm, muscle deep, present over middorsum of right hand.
24) Stab wound of size 3 x 2 cm, muscle deep, present st vertically over 1 web space of right hand.
25) Stab wound of size 4 x 2 cm, present over lateral aspect rd of right forearm in middle 1/3 obliquely present, muscle deep.
26) Stab wound of size 2 x 1 cm, present over lateral aspect rd of right forearm in lower 1/3 obliquely present, muscle deep. DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 36 of 63 37
27) Stab wound of size 4 x 1 cm, present over left dorsum of nd rd hand in between 2 and 3 metacarpal bones, muscle deep.
28) Stab wound of size 4 x 2 cm, muscle deep, present over rd medial aspect of left forearm in lower 1/3 obliquely placed.
29) Stab wound of size 3 x 1 cm, present over right rd shin of tibia in upper 1/3 obliquely placed, bone deep.
30) Stab wound of size 3 x .5 cm, horizontally placed over lower back of the body, 15 cam above the cocyx, cavity deep, 3 cm right lateral to midline entering the abdominal cavity in right lateral direction, cutting the right kidney associated with haematoma.
87 The witness further deposed that cause of death was hemorrhagic shock as a result of multiple injuries. Injuries no. 5, 7, 12 and 30 individually were sufficient to cause death in the ordinary course of nature. The clothes of the deceased, the nails from both hands, hairs from frontal part of the head, hairs recovered from left hand, blood in gauze were sealed and handed over to the IO. This witness was not cross examined at all by the accused.
88 SI Girish Gothwal (PW38) has deposed that on 5.9.2006 at about 4.45PM he had joined the investigation and DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 37 of 63 38 in his presence, the articles were seized. This witness had also joined the investigation on 28.9.2006, 5.10.2006, 6.10.2006 and 12.10.2006.
89 W/HC Vimlesh (PW39) was on duty in the Police Control Room. At about 1.45 PM, on 5.9.2006 she had received a call from phone no. 26303622. She had filled CRDD Form No. 847 ( Ex. PW39/A). She had made endorsement on this form and sent it to the concerned officer for appropriate action. 90 HC Dara Singh (PW40) had taken the sealed pullandas on 27.12.2006 from MHC(M) and deposited the same in the office of CFSL, Hyderabad on 29.12.2006. he had also collected the CFSL result.
91 Dr Ashish Jain, Junior Resident, Deptt of Forensic Medicine & Toxicology, AIIMS, New Delhi (PW41) has proved the MLC Ex. PW34/B of accused Rajesh.
92 HC Dharam Singh (PW42) was MHC(M) to whom sealed exhibits had been handed over from time to time. He had sent the sealed exhibits to CFSL. He had made entries in register no. 19 and the same are collectively Ex. PW42/A. 93 Dr Rajat Mitra (PW43) had on 14.10.2006, counseled accused Monika. The witness deposed that the DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 38 of 63 39 session had lasted for about one hour. There had not been any distraction or interruptions during the session. His detailed report is Ex. PW43/A. During counseling , accused Monika had shared that she was aware of the fact that she was in the police station in connection with murder of Renu (deceased) whom she knew well as her neighbour. She had further stated that Renu (deceased) was stabbed a number of times and she had died as a result of that. She (accused Monika) had stated that Renu (deceased) was murdered by her brother. 94 In the crossexamination conducted on behalf of the accused, it was suggested to the witness that he had prepared the report at the behest of police. 95 HC Ved Parkash (PW45) had joined the investigation.
96 Insp. Atul Kumar (PW46) is the IO.
97 Mr Krishna Satry Pendyala (PW48) has deposed that in the absence of required data cable of the software, it was not possible to analyse phone memory of mobile phone sent to him for examination. His detailed report is Ex. PW48/B. 98 Dr S K Gupta (PW49) was shown the sword Ex. P4 and knife Ex. P5 which had been seized from the place of DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 39 of 63 40 occurrence to seek his opinion as to whether injuries on the person of the deceased could have been caused by those weapons or not. The witness in his report Ex. PW49/A gave the opinion that dimensions of sharp injuries mentioned in the postmortem report were suggestive of the injuries sustained, could be produced by the two sharp edged weapons--the sword and the knife.
99 After closure of evidence of the prosecution, the accused were examined under section 313 CrPC.
100 Accused Monika has put forth the following defence:
" On 5.9.2006, at about 9AM, I had gone
to market with my sister to buy books. My
sister used to go to Computer Institute. Both of us had gone to buy books but we could not find the books. My sister Jyoti asked me to stay with her in the institute. She told me that both of them would go together to the house. I had stayed with her in the institute. At about12 or 12.30 PM we had lift the institute. When we reached our house, I saw my brother Robin coming from the opposite side. One more boy was with him and later on I came to know that he was my cousin and his name was Manoj.
Thereafter, we had gone inside the house. When we entered in the house, we found that there was blood all over the floor. A girl was DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 40 of 63 41 lying there at the "dehleez" (doorsill). She was lying in a pool of blood. At some distance, my brother Rajesh was also lying. He was also having a number of injuries. He was also lying in a pool of blood. On seeing this incident, I almost lost my senses. I tried to shake that girl to inquire as to what had happened but she did not speak. Thereafter, I had tried to inquire from Rajesh. However, he also did not speak.
Thereafter, Jyoti and Robin had made me to sit in the adjacent room. Thereafter, Robin had gone and informed the police on phone no. 100.
Police officials had reached there. First of all, the police officials had gone in that room. Police officials inquired from me as to how it had happened. We told them that we had just reached there and do not know anything about it.
Thereafter, police officials had asked Jyoti to provide a screw driver. In my presence, the police officials had removed the chitakni ( latch) with the help of screw driver. Thereafter, police officials had wrapped Rajesh in a bed sheet and had removed him to hospital.
After sometime, they (police) had removed the dead body of Renu. A number of persons had tried to enter in that room but the police officials had not allowed them to enter the same.
DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 41 of 63 42 Police officials had taken me, my sister Jyoti and my brother Robin to police station. Our statements were recorded. We had narrated these facts to the police. Thereafter, we were allowed to go by the police officials.
I, Jyoti and Robin had been called by Insp. Atul Kumar to PS. We had gone there a number of times. We were made to sit in the PS. However, nothing used to be inquired from us. After making us sit in the PS, for sometime, we used to be left off by Insp. Atul Kumar.
On 13.10.2006 also, I, Jyoti and Robin had been called by Insp. Atul Kumar in the PS. He again inquired facts from us. We again narrated the facts to him. On that day, Insp. Atul Kumar told us that he would arrest me. When I inquired from Insp. Atul Kumar as to why was I being arrested, Insp. Atul Kumar told me that he was being pressurized by the family members of Renu. I was kept in the police station for one night. On the next day, two doctors had come and they were introduced to me as Psychologist. I was also told that they would like to inquire facts from me. They had inquired facts from me.
Thereafter, Insp. Atul Kumar and a lady police official had come there. They had had a talk.
I do not know as to what had transpired
between them. Thereafter, I was taken to
AIIMS by Insp. Atul Kumar. From there, I was DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 42 of 63 43 sent to jail.
I want to submit that I am innocent in the matter. I have been falsely implicated in this case by the police."
101 Accused Rajesh, on being questioned as to whether he has anything else to say, simply stated that he does not want to say anything else. His statement under section 313 CrPC was recorded on 20.10.2011.
102 However, when accused Rajesh appeared on 21.10.2011, on which date statement of accused Monika was recorded, he ( accused Rajesh), placed on record a hand written statement. Since it contained his detailed defence, therefore, it was retained on the file. A reference of it was made in the proceedings dated 21.10.2011. This fact was also got verified on 15.2.2012 i.e., today. Since accused Rajesh has asserted this fact again, therefore, this hand written statement is now being exhibited as Ex. C1. 103 In the hand written statement Ex. C1, accused Rajesh has mentioned that on 20.10.2011, a number of questions had been put to him by the court. He had truthfully given the replies. However, in spite of the judge having asked as to why he has been falsely implicated in this case, he had DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 43 of 63 44 not stated the same, as, at that time, while giving the replies to the questions put to him by the judge, he was quite perplexed. He did not know the intricacies of law. He was fearful of the fact that his disclosure of facts in spite of the same being true, might not take a wrong shape. It is a question of life and future of a handicapped person and an innocent girl which are linked with the words uttered by him. Can he not be given opportunity to state truth? No brother would get his younger sister involved in a murder case particularly when she is literate and is a student of B.A. Ist year. She is residing in Delhi. She has a positive attitude towards her life, future and progress. Would she tell her handicapped and helpless brother to call a girl to her house and kill her and she would help him in that act. No educated girl would commit such a foolish act.
104 The hand written statement further contains the fact that he (accused Rajesh) wants to tell as to what incident had taken place on 5.9.2006 in the morning. At about 9.00 AM or 9.15 AM, his mother and brother had gone to Maidan Garhi because of death. Thereafter his two sisters--Jyoti and Monika
--had told him that they were going out. Jyoti was to attend computer classes and Monika was to purchase books. He DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 44 of 63 45 (accused Rajesh) was all alone. He ( accused Rajesh ) was sitting in his room. At that time, Renu (deceased) had come there. She was talking with him. At that time a phone call had come on the mobile phone of Renu (deceased). Renu had informed the caller that she was sitting in the house of her neighbour Rajesh of wheel chair. As soon as Renu (deceased) had kept the phone, two persons had entered in the room. Before he could understand anything, they had attacked him. They were having sharp edged articles like knife and had given repeated blows to him. Three blows with knife were given in his abdomen. He (accused Rajesh) had caught the knife with his hand. The knife was snatched as a result of which he had sustained injuries on his hand. One of those persons had given a knife blow on his throat. Thereafter, he became unconscious. When he regained consciousness, he found himself in the AIIMS. There he came to know that Renu (deceased) had been murdered. In the hospital, he had stated all the facts to the police officials. He was unable to speak because of injury on his throat. He had told every thing in writing to the police officials. However, they had kept on abusing him. They told him that there was no other person and DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 45 of 63 46 he (accused Rajesh) had killed Renu (deceased). In spite of his having denied these facts, he was not heard by the police officials. He was told that his entire family members were in the police station and in case he confesses that he had committed the murder, his family members will be spared. He was also told that he was about to die because of the large number of injuries and with his death the matter shall come to an end. He was mentally tortured by the police. Therefore, under compulsion he had to do whatever was told to him by the police officials. His mental condition had also become zero. Police officials made him to write in the note books, blank papers and obtained his signatures. Since the police officials were unable to trace the actual murderers and their service was in danger, they made some one scapegoat. When they could not find the murderers, he was falsely implicated in this case. He was also told that the judge, considering him handicaped would let him off. The police officials in a number of cases, indulge in fake encounters. If that is so, would the police not falsely implicate him? Just to save his service, the APP also tries to prove every one a criminal. Had any APP even tried to find out as to whether the accused is a criminal or not. When the police DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 46 of 63 47 officials could not make out a case against a handicapped person (accused Rajesh), they falsely implicated his innocent sister. He (accused Rajesh) has also been implicated in a case of suicide. He has already been discharged in that case. He is a handicapped person who himself cannot take even water. He remains dependent on others for every thing. The police claims that there had been love affair between him and the deceased. He (accused Rajesh) had met her ( deceased) 4 or 5 times in connection with work. He is eldest in his family. He knows that he is handicapped and has the responsibilities. It is a false claim of the police that the murder had been committed because of love. Monika is his youngest sister. He cannot get her involved in a murder case. THE CASE IS BASED ON CIRCUMSTANTIAL EVIDENCE. 105 In the present case, no one had seen the commission of crime, i.e. actual killing of the deceased, by the accused. Thus, the case is based on circumstantial evidence. The law relating to appreciation of evidence in a case based on circumstantial evidence is well settled. 106 When a case rests upon the circumstantial evidence such evidence must satisfy the following three tests: DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 47 of 63 48
(a) the circumstance from which an inference of guilt is sought to be drawn, must be cogently and firmly established.
(b) these circumstances should be of a definite tendency pointing towards guilt of the accused and
(c) 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 none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of accused but should be inconsistent with his innocence. (see Gambheer Vs. Maharashtra AIR 1982 SC 1157). MOTIVE:
107 It has been submitted on behalf of the accused that there was no motive for the accused to kill the deceased. 108 What is motive?
109 Motive is a psychological phenomena. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many murders have been committed without DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 48 of 63 49 any known or prominent motive. It is quite possible that the aforesaid impelling factor may remain undiscoverable . 110 A motive is something which prompts a person to form an opinion or intention to do an illegal act or even a legal act with illegal means with a view to achieve that intention. 111 Motive has nowhere been defined. It has been interpreted by the courts. It is difficult for the prosecution to prove as to why the crime had been committed. 112 Motive always remains locked in the heart of the offender. Motive for doing a criminal act is generally a difficult one for the prosecution to prove. One cannot normally see into the mind of another.
113 It is no doubt true that motive plays an important role to establish guilt of the accused. To say that a crime, without motive, is never committed, is unacceptable. At times, it becomes very difficult for the prosecution to unearth the motive. 114 In state of Himachal Pradesh Vs Jeet Singh 1999 (III) AD SC 89 (para 33) the Hon'ble Supreme Court has observed as under: " It is a sound principle to remember that every criminal act was done with a motive but its DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 49 of 63 50 corollary is not that no criminal offence would have been committed, if prosecution fails to prove the precise motive of the accused to commit it. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended".
115 The absence of motive is not always fatal, if a case stands otherwise proved. See: Bal Ram Vs State 2003 V AD (SC) 143.
116 Motive is not always capable of precise proof. If proved, it may lend additional support to strengthen the probability of commission of offence. However, absence of proof of motive does not warrant acquittal. See: Sardul Vs State of Haryana JT 2002 (7) 496.
117 In a criminal case, where there is no direct evidence, it is very difficult for the prosecution to bring on record as to what had been the motive to commit the crime. 118 In the present case the prosecution intended to show that accused Rajesh used to love the deceased. However, he had been reprimanded by her because of his being a handicapped person.
DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 50 of 63 51 119 In the present case, ASI Kamal Chand (PW35) has deposed that on enquiry by ASI Lala Ram, the accused had stated that he was in love with Renu. This fact has gone unchallenged. Therefore, the prosecution has to some extent proved the motive. It was locked in the heart of accused as to why did they kill the deceased.
120 Although the prosecution has also tried to prove the motive by inferring from the note book Ex. P36 wherein a few lines had been written by accused Rajesh to show that he (Rajesh) was in love with the deceased yet, in my opinion, those lines in the note book Ex. P36 (Q4 in Ex. P35, Q8, Q12, Q14,Q16 and A17 in Ex. P36) simply show that accused Rajesh was having feelings of love. In these lines name of the deceased was not mentioned specifically. 121 At best it can be said that the prosecution could not establish the exact motive. But it is inconsequential. Defence of accused Rajesh:
122 Accused Rajesh has claimed that the deceased was with him and she had received a telephonic call on her phone. Phone no. 9871352549 belonged to father of the deceased. As per Gulab Chand (PW31) he had handed over this phone to the DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 51 of 63 52 deceased for using it. The call details of this phone Ex. PW 23/A show that on 5/8/2006 a phone call had been received on this phone at 11.46.05 from phone no. 9312210725 (Ex. P12). Phone no. 9312210725 (Ex. P12) was in the name of the father of the accused. This is an admitted fact. It is evident from the reply to the question no. 83 put to accused Rajesh in his statement u/s 313 Cr.P.C. It corroborates the claim of the prosecution. The duration of the talk at 11.46.05 was for 118 seconds. Ex. PW 23/A and PW 23/B show that there used to be regular talks for long periods from these phones. It does indicate that some one from the side of the accused used to regularly talk to the deceased.
123 Accused Rajesh did not come out with any specific defence till the time of recording of his statement u/s 313 Cr.P.C. Even on that day he did not state as to why he was implicated in this case. It was only on 21/10/2011 that he came out with his written defence Ex. C1. He did not put this defence to any witness. Thus, the defence of accused Rajesh is nothing but an after thought.
124 In the present case, the rough site plan Ex. PW 30/A shows that there was only one door in the room in DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 52 of 63 53 question. There was no window in the room. Thus, chances of any other person other than the accused and the deceased being in the room at the time of commission of offence are altogether ruled out.
125 Similarly accused Monika did not come out with any specific defence till 8/4/2010 on which date her sister Jyoti (PW44) was examined. This witness (PW44), being the real sister of the accused, had admitted the defence of accused Monika. However, in view of the consistent depositions of the neighbours and in the absence of any suggestion to them, the defence of accused Monika is also an after thought. 126 Section 106 Evidence Act reads as under: "When any fact is especially within the knowledge of any person, the burden of proving that fact is on him'.
127 One of the arguments advanced on behalf of the accused is that the chitkani (Ex. P6) would have been bent, as the gate had alleged been forced open.
128 I do not agree with ld. Counsel for the accused. 129 One has to keep in mind the fact that a small portion of the chitkani goes inside the hold which remains fixed DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 53 of 63 54 on the portion of the frame. If the door is such which opens inwards there is always a possibility of the chitkani fixed on the frame coming out. In that case there can't be any bent on the lower portion of the chitkani which is always a rod. There can be some bent on the rod if the door opens outward. However, it is not so in this case. Ex. PW 38/A is the rough site plan prepared by the IO. It shows that the door used to open inward. The photographs Ex. PW 15/P10 and PW15/P11 also show that the door of this room used to open inwards. Non explanation of the injuries of accused Rajesh by the prosecution:
130 In the memo of arguments it has been mentioned that the prosecution has failed to explain the injuries on the person of accused Rajesh.
131 However, every case has its own facts. 132 In the present case no one was inside the room where the accused and the deceased were at the time of occurrence. Since Renu is no more, therefore, nobody else except the accused could have explained the injuries of Rajesh. The prosecution is required to explain the injuries of an accused only in those cases where the witness who claims to DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 54 of 63 55 have been assaulted by the accused, fails to explain serious injuries of the accused.
133 In the present case the prosecution could not have possibly explained the injuries of the accused. As mentioned earlier the defence of both the accused is nothing but an after thought. It is not the plea of accused Rajesh that the deceased had caused him injuries.
134 The question before me is as to whether, in view of the nature of evidence produced by the prosecution can it be said that accused Monika was also involved, in any way, with the murder.
135 In the present case, the prosecution has been able to establish that accused Monika had gone to the house of the deceased to call her. The deceased had accompanied her to the house of Monika. No cross examination with regard to these facts had been conducted on behalf of the accused. Accused Monika did not come out with any specific defence till the examination of her sister Jyoti (PW44). For the first time accused Monika came out with a specific defence. It was within her special knowledge. Therefore, she should have divulged it in the very beginning. It should have been DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 55 of 63 56 suggested by her to PW1 that she had not gone to her (witness's) house and the deceased had not accompanied her (Monika). But it is not so.
136 Jyoti (PW44) has claimed that accused Monika had picked her brother Rajesh, accused. Clothes of accused Monika had also been seized by the police. When accused Monika was examined u/s 313 Cr.P.C, she came out with the defence that she had tried to shake the deceased to enquire as to what had happened but she did not speak. Thereafter, she had tried to enquire from Rajesh. However, he also did not speak. Thus, accused Monika did not state, in her statement u/s 313 Cr.P.C that she had lifted her brother Rajesh. The defence of accused Monika is not specific. 137 The prosecution has been able to prove that she was inside the house and was present in the room in which the deceased and her coaccused Rajesh were lying. 138 The defence of the accused Monika that she had gone inside the room after it was forcibly opened is not acceptable in view of the above discussion. 139 Thus, she was inside the room in which the murder had taken place. Once it is held that she was inside the room, DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 56 of 63 57 following hypothesis can be put forth:
i) Accused Rajesh was a mute spectator and the murder had been committed by Monika only.
ii) Accused Rajesh alone had committed the murder and Monika was a mute spectator.
iii) That the murder had been committed by both the accused. 140 So far as the first hypothesis is concerned, it has to be rejected out rightly as Monika had had no grievance. She could not have done it all alone as the deceased was a young girl of 23 years having height of 5ft 2inches and was of average built. The postmortem report shows that she (the deceased) was having 30 stab wounds. These wounds could not have been caused by accused Monika alone.
141 Accused Rajesh is handicapped to the extent of 60%. This is evident from the disability certificate which is not being disputed even by the accused. He is being produced in court in a wheel chair. He is lifted physically by a sevadar to bring him inside the court room. His disability certificate Ex. C3 dated 16/5/2008 (the copy of this disability certificate was admitted by the accused today when he was shown the same) shows that he is 60% disabled. Therefore, he alone could not DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 57 of 63 58 have caused the 30 stab wounds.
142 Once the first and second hypothesis are discarded, we are left with the third hypothesis. As mentioned earlier the deceased was having 30 stab wounds on all parts of her body. Her photographs Ex. PW 15/P5, P6, P7, P8 and P9 show the extent of assault. The remaining photographs Ex. PW 15/P1, P2, P3, P5, P10,P11,P12, P13, P14, P15, P16, P17 and P18 are of the place of occurrence. Blood is visible in all these photographs. 143 In the present case the prosecution has successfully proved the following facts by leading reliable and acceptable evidence:
1) That the deceased was known to the accused;
2) That on 5.9.2006, accused Monika had made a telephone call to the deceased on her mobile phone number 9871352549. This is evident from the call details Ex. PW 23/B. It shows that a call had been made from phone no. 9899529477 on 5/9/2006 at 11.08.49. Phone no. 9871352549 (Ex. P11) has been proved to be of Gulab Chand, PW31 (father of the deceased) and it had been seized from the place of occurrence vide memo Ex. PW 20/D. Phone no. 9899529477 (Ex. P13) had been produced by accused Monika on 5/9/2006 and it was seized vide memo Ex. PW 20/F. DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 58 of 63 59
3) That accused Monika had gone to the house of the deceased to bring her ( deceased) to her ( Monika's) house;
4) That the deceased and both the accused were in the room and the door of the room was closed from inside;
5) That Robin(PW47) and Jyoti (PW44), siblings of the accused, had, on finding the door of the room closed from inside, had repeatedly knocked and it was not opened. Manoj (PW 19), who is cousin of the accused has also supported this particular claim of the neighbours;
6) That the neighbours, on coming to know that the door was not being opened in spite of repeated calls made by Robin (PW47) and Jyoti (PW44), had also gathered there;
7) That Robin (PW47) had then kicked the door repeatedly and had forcibly opened the door;
8) That music was being played in the room;
9) That when the persons from the public had entered in the room, they had found the deceased lying in a pool of blood. Accused Rajesh was also found lying in an injured condition. Accused Monika was also in the room.
10) That accused Monika was having blood stains on her clothes (Ex P17 and P18).
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11) That Rakesh (PW5) had been on inquiry, told by Rajesh, accused that he had killed the deceased and was also going to kill himself;
12) That Brahmdev Paswan (PW8) was also told by accused Rajesh that he had committed the murder of the deceased;
13) The call details Ex. PW 17/A, PW 23/A, PW 23/B and PW 26/D of the three mobile phones prove the fact that there used to be talks between the deceased and the accused;
14) The seizure of the sword Ex. P4, the knife Ex. P5, the danda Ex.P8, the desi katta Ex. P10, the cartridge Ex P11A, the blood sample, the blood stained floor, the hairs of the deceased and the hairs found in her palm, the earth control, the pillows and the phones has been proved;
15) The postmortem report (referred as mark 'X') to prove the number and nature of injuries found on the person of deceased;
16) The opinion of Dr S K Gupta (PW49) to prove the fact that the injuries on the person of the deceased could have been caused by the sword and the knife;
17) The rough site plan Ex. PW 38/A.
18) The note books Ex. P35 and Ex. P36 containing the handwriting of accused Rajesh;
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19) The opinion of the handwriting expert to prove that the handwriting in the note books were of accused Rajesh;
20) The fact that desi katta and the cartridge were arms and ammunition, as defined under the Arms Act; and
21) The sanction to prosecute accused Rajesh under section 25 Arms Act duly given.
144 The prosecution has proved the above facts by producing reliable witnesses. The neighbours did not have any grudge against the accused. They have deposed the facts in a straight forward manner. There is no material to disbelieve him. Infact some of the witnesses had not been cross examined with regard to material facts.
145 The chain is complete. It leads to irresistible conclusion that in all probabilities the accused had committed the murder of the deceased. In this regard I am placing reliance on two judgments.
146 In Tapubha Bhagwanji Vs State of Gujarat, AIR 2002 SC 2794, the deceased was hale and hearty when she had left her house and had gone to the house of the accused. The five accused were proved to be the only inmates of the house on the fateful night when the incident had taken place. DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 61 of 63 62 Those five accused were present in the house when the body of the deceased was lying in the kitchen. None of the accused in that case had taken any step to give relief to the deceased nor had given any explanation about the incident. The accused in that case were not sure of the defence to be taken by them. Subsequently, they had decided to take a particular defence. The Hon'ble Supreme Court had held that the above circumstances provided a complete chain of events to point towards the guilt of the accused.
147 In Molai & Anr Vs State of Madhya Pradesh, AIR 2002 SC 177 the incident had taken place on 20.2.1996 between 10.00 AM and 11.00 AM. The deceased was all alone in the house. Both the accused had gone to the house of the deceased. Thus, they had been working in the house between 9 AM to 1 PM. The door of the house was found closed. A witness, who had gone to the house of the deceased to return the cassette, had given a call to the deceased but there was no reply. The witness had noticed that the accused in that case were standing outside the house and told that the deceased was not in the house. The Hon'ble Supreme Court on the basis of those facts, as well as a few other circumstances, convicted DJ/ASJ/ND/15/2/2012 State Vs. Rajesh etc. Page No. 62 of 63 63 the accused under section 302 IPC ( besides other sections). 148 Both the accused have been charged u/s 120B r/w sec 302 IPC.
149 Now so far as the charge u/s 25 Arms Act framed against accused Rajesh is concerned, the prosecution has failed to prove his exclusive possession. I am not inclined to convict him u/s 25 Arms Act.
150 In view of the above discussion, both the accused are convicted u/s 120B r/w sec 302 IPC.
Announced in open court dated 15.02. 2012 ( H S SHARMA ) DISTT.JUDGE/ ADDL. SESSIONS JUDGE/ NEW DELHI 15/2/2012 All pages signed.
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