Delhi District Court
State vs . Nadeem S/O. Azizuddin, on 19 September, 2018
IN THE COURT OF MS. POONAM CHAUDHRY, ADDITIONAL
SESSIONS JUDGE02 (CENTRAL), DISTRICT, DELHI
SC NO. 28154/2016
CNR No.DLCT010009272012
STATE VS. Nadeem S/o. Azizuddin,
R/o. 1166, Sarai Mahal, Chooriwalan, Delhi.
Also R/o.B2, DDA Flats, Turkman Gate,
Delhi.
FIR NO. : 23/2012.
U/S : 302 of Indian Penal Code, 1860.
PS : Jama Masjid.
Date of institution on 06.08.2012
Judgment reserved on 29.08.2018
Judgment delivered on 10.09.2018
JUDGMENT
1.The case of the prosecution in brief is that on the intervening night of 1011.04.2012, at 2.00 AM, at House No. 1166, Sarai Mahal, Churiwalan, Delhi6 the accused committed murder of his wife Shabana by thrusting a screwdriver in her head and thereby committed offence punishable under Section 302 of the Indian Penal Code (in short IPC). According to the prosecution FIR No. 23/2012 State V. Nadeem 1 call was made to control room, PHQ at about 2:03:35 am on 11.04.2012 by PW6/Abrar Mirza from his mobile informing that a sua / screwdriver had been thrust in the head of a girl at house no. 1166, Sarai Jama Masjid, Delhi. The said information was recorded in PCR Form Ex. PW26/A by PW26 W/Ct. Pooja and the call was forwarded to Oscar Net. Further according to the prosecution on receipt of the information PCR van reached at the house of deceased and found she was lying unconscious on bed and one screwdriver type instrument stabbed on her temple. The injured lady Shabana was removed to LNJP hospital by PCR Van where she was declared brought dead.
2. First information report was lodged on the statement of PW3 who stated therein that he was residing in room adjoining to the room of the accused and deceased who claimed to be husband of wife and he used often to intervene in their disputes get the matter patched up. He further stated that on the date of incident, he heard noise of quarrel and then he went to the room of accused and deceased, he saw deceased was lying on the bed and accused was shouting and accused inflicted injury with FIR No. 23/2012 State V. Nadeem 2 screwdriver left side of head of deceased. FIR was lodged at about 4.45 am on 11.04.2012 and search was made for the accused. IO/Inspector I.K. Jha took over the investigation and he arrested accused on the basis of allegations made in the FIR.
3. It was also the case of prosecution that DD No. 7A Ex.PW1/A was lodged regarding the incident which was assigned to PW11/SI Mohd. Faiyaz, and he alongwith PW27/ Ct. Satender and PW24/HC Jagdish reached the spot and found one eyewitness PW3/Ballu Qureshi present. The PW3/ eye witness informed him that accused had committed the murder of deceased Shabana by causing injury with a screwdriver. PW11 further stated that he recorded the statement of PW3 and prepared the rukka Ex.PW11/A and sent PW24/HC Jagdish for registration of the case. The investigation was entrusted to IO I.K. Jha/PW36.
4. After completion of investigation, chargesheet was filed.
Cognizance of the offence was taken against the accused. Charge was framed against accused for the offences punishable under section 302 of IPC. The accused pleaded not guilty and claimed FIR No. 23/2012 State V. Nadeem 3 trial.
5. Prosecution examined 36 witnesses to prove its case.
6. PW1 HC Sita Ram stated that on 11.04.2012, he was posted as Duty Officer at PS Jama Masjid when received a PCR call at 2.27 am from CDCR on the basis of that he lodged DD no. 7A which is Ex.PW1/A. The information of the incident was sent to SI Mohd. Fiayaaz/PW11 through HC Jagdish/PW24. He further stated that at about 3.50 am, he received another information from LNJP Hospital which sent by Duty Ct. Ajay Kumar regarding admission of injured Shabana to the hospital and that she was declared brought dead. He further stated that he received a tehrir for registration of FIR sent by PW11/ Mohd. Faiyaz through HC Jagdish / PW24, on the basis of which he registered the FIR.
7. PW2 Dr. Kapil, CMO, LNJP Hospital, proved MLC of deceased Shabana Ex. PW2/A accordingly to which she declared brought dead.
8. PW4 Dr. Jatin Bodwal, SR, Department of Forensic Medicine, MAMC, Delhi proved postmortem report of the FIR No. 23/2012 State V. Nadeem 4 deceased Ex.PW4/A.
9. PW5 Ms. Saba the daughter of the deceased stated that she was residing with her mother and accused in H. No. 1166, Sarai Mahal, Churiwalan. She further stated that accused used beat her mother (Shabana) and threaten to kill her and also demand money from her . PW5 also stated that at that time of murder of her mother she was at Meerut at the house of her elder sister Sijra/PW10.
10. PW6 Abrar Mirza stated that he was running a stall of tyre puncture at ITO. The deceased was not known to him. He further stated on 11.04.2012, at about 2.00 am, while he was returning home and was passing from the area of Churiwalan he saw a crowd outside H. No. 1166 and stopped and one person namely PW3/Ballu Qureshi was seen raising noise and saying that a lady is lying in the above house with injuries inflicted with a screwdriver. PW6 further stated that he told PW3 / Ballu Qureshi to call the police but he (PW3) instead asked him to do so. He accordingly called the PS Jama Masjid from his mobile no. 98114477697 and also made a call at 100. The PCR FIR No. 23/2012 State V. Nadeem 5 accordingly reached and the lady was removed in the PCR van to the LNJP hospital and he remained at the spot. He further stated that at about 4/4.30 am, police officials again came to the spot and they seized one broken glass from beneath the bed from the spot vide seizure memo Ex.PW3/D and one bed sheet having blood stains vide seizure memo Ex.PW3/C which bears his signature. He thereafter returned to his house, he correctly identified the case property. As PW6 had resiled from his previous statement he was cross examined by Ld. Addl. PP with the leave of the court. In his crossexamination he admitted that PW3 had told him that accused (husband of the deceased) had inflicted injury on her with a screwdriver and he then ran away. PW6 admitted that he had seen the screwdriver near the right side ear of deceased who was lying dead on the bed. PW6 also stated that IO had recorded the statement of PW3. He also admitted the IO had prepared site plan.
11. PW7 Smt. Shakila mother of the deceased/Shabana stated that deceased was married with one Saleem and out of said wedlock she had three daughters. She further stated that said FIR No. 23/2012 State V. Nadeem 6 Saleem had given divorce to the deceased and thereafter she started living with accused (correctly identified). She further stated that about 34 days prior to the present incident accused had quarrelled with deceased and exhorted that he would finish Shabana one day "ek din Shabana ka kaam tamam kar dega"
She further stated that accused also misbehaved with her prior to the incident and every time stated that he would commit murder of Shabana.
12. PW8 Sh. Israr Babu, the Nodal Officer, Vodafone Mobile proved the customer application form (CAF) of mobile no. 9811477697 and ID proof of subscriber Ex.PW8/A. He stated that the said number was registered in the name of PW6/Abrar Mirza.
13. PW9 Ms Rukhsana sister of deceased deposed that whenever the deceased used to meet her or talk to her on telephone she used to tell her that accused used to quarrel with her and bear her.
14. PW10 Sijra daughter of deceased stated that six years prior to the incident after her father Salim had divorced her mother FIR No. 23/2012 State V. Nadeem 7 she started living with accused. She further stated that her younger sister Saba also resided with them. PW10 also stated that accused used to quarrel with her mother and also beat her on petty issues and used to demand money from her. She further stated that 2 years prior to the incident she got married and started residing in her matrimonial home at Meerut. PW10 further stated that 20 days prior to the date of incident she had come to Delhi, on coming to know that accused had quarreled with her mother and she tried to intervene and pacify them and she took her younger sister PW6/Saba with her to Meerut. She further stated that accused used to threaten her mother / deceased even in her presence stating that 'agar teri maa aise he ladit rahi to teri maa ka kaam tamam kar dunga'.
15. PW11 SI Md. Faiyaz stated on 10.04.2012, on receipt of DD No. 23A he alongwith PW27/Ct. Satender went to the gate no. 1 Jama Masjid. He further stated that at about 2.40 am PW24/HC Jagdish brought DD no. 7A and handed over same to him for inquiry. On receipt of the same he alongwith PW27/Ct. Satender and PW24/HC Jadgish reached at spot i.e. 1166, Sarai Mahal FIR No. 23/2012 State V. Nadeem 8 Churiwalan Jama Masjid, Delhi where he met one person PW 3/Ballu Qureshi hwo informed him about the murder of Sabhana, by accused by causing injuries with a screwdriver. He further stated that he came to know that deceased/Sabhana had been removed to LNJP hospital by PCR and he found one bedsheet and pillow cover with blood stains lying on the bed of Sabhana, he also found one broken glass lying on the floor. PW11 also stated that he recorded statement of eye witness PW3/Ballu Qureshi. He left PW27/ Ct. Satender to guard the spot and he alongwith PW24/HC Jagdish went to LNJP hospital and he collected MLC of deceased. He further stated that statement of eye witness Ballu Qureshi was recorded Ex.PW3/A and on basis of which he prepared the rukka Ex.PW11/A and sent PW24/HC Jagdish for registration of FIR. PW24 left the hospital with the rukka and he returned to the spot where he found PW36/SHO Inspector I.K. Jha, PW27/ Ct. Satender and members of crime team present. PW11 further testified that blood stained bedsheet and pillow cover were taken into possession after sealing the same in a parcel with the seal of IKJ vide seizure memo FIR No. 23/2012 State V. Nadeem 9 Ex.PW3/C. He further stated that pieces of broken glass were also seized in a cloth parcel and sealed with the seal of IKJ vide seizure memo Ex.PW3/D. He further stated that crime team took the photographs of the spot and also inspected the place of incident. PW11 further stated that after registration of FIR, PW 24/HC Jagdish returned to the spot and handed over copy of FIR and rukka to the PW36/Inspector I.K. Jha and he alongwith other staff and PW36/Inspector I.K. Jha went to the mortuary. PW11 further stated that he then alongwith PW36/Inspector I.K. Jha and PW24/HC Jagdish left in search of accused and on the information of a secret informer accused was apprehended and arrested.
16. PW12 Gulam Mustafa father of deceased stated that his daughter (deceased) was married to one Salim in the year 1991 and Rites and and three daughters were born out of the said wedlock. He further stated that after Salim left his daughter she started residing with accused. He also stated that accused had exploited his daughter (deceased) sexually and financially on false assurance of marriage. PW12 also stated that his daughter FIR No. 23/2012 State V. Nadeem 10 had lodged a complaint with the police Mark PW12/A against accused, on 10.04.2012, he also stated that 3 days prior to the incident the deceased got the accused released from the custody of the police on the assurance that he would mend his behavior but accused continued to harass his daughter.
17. PW13 Ms. Sana daughter of deceased stated that after her father Salim had divorced her mother in the year 2007, she started living with accused. She further stated that she was married and her in laws had told her not to visit her mother's home since she started residing with accused. She further stated that deceased used to call her telephonically and to tell her that accused used to beat her and also threaten to kill her. She further stated on 11.04.2012 her aunt Rukhsana called at about 8 am in the morning and told that accused had committed murder of her mother.
18. PW14 Ct. Ajay the Duty Constable at LNJP hospital stated that doctor handed over to him one sealed pullanda containing clothes of the deceased Sabhana, duly sealed with seal of LNH New Delhi. He further stated that he handed over the sealed FIR No. 23/2012 State V. Nadeem 11 pllandas and sample seal to PW36/Inspector I.K Jha.
19. PW15 HC Sunil Kumar stated on the date of incident he was posted as Reader to SHO and as per record on 27.03.2012 one complaint was made by Sabhana (deceased) against Nadeem (accused) which was entered in the general complaint register. He further stated that on 10.04.2012 another complaint was lodged by one Shabana against Nadeem at PS which was also entered in the complaint register. He further stated that he handed over the copies of entries of complaints to the IO alongwith his reply Ex.PW15/A.
20. PW16 HC Udai Bhan stated that as per the Roznamacha register DD no 3A Ex.PW16/A and DD no. 38B Ex.PW16/B dated 24.02.2012 were lodged on information received regarding quarrel at H. No. 1168, Churiwalan, Jama Masjid and PW34 SI Md. Inam was sent to the said house for enuiry.
21. PW17 SI Pankaj, the Incharge of Crime Team stated on 11.04.2012 on receipt of information of the incident from Control Room at about 4 am he alongwith members of the crime team reached at house no. 1166, Sarai Mahal Churiwalan, Jama FIR No. 23/2012 State V. Nadeem 12 Masjid, Delhi at about 4.30 am where he alongwith the IO and the member of crime team inspected the place of incident. He further stated that the spot was got photographed and one bedsheet and pillow with blood stains were found lying on the bed. He also stated that one broken glass tumbler was also lying found on the ground. He further stated that they were not able to lift any finger prints from the spot or from the glass tumbler. PW12 proved the report of crime team Ex.PW17/A. He further stated that on 12.4.12, he reached at MAMC Mortuary alongwith crime team where Ct. Gurmeet took the photographs of the deceased. He further testified that as there were grooves in the handle of screw, no finger prints could be lifted, he also proved the report in this regard Ex.PW17/B.
22. PW18 W/HC Sudha stated on 12.04.12 stated after the postmortem of deceased Sabhana, the dead body was handed over to her relatives vide memo Ex.PW18/A.
23. PW19 Ct. Dinesh stated on 11.04.2012 he was posted in Mobile Crime Team, Central District, Pahar Ganj, Delhi and he had accompanied with crime team to the spot and had taken FIR No. 23/2012 State V. Nadeem 13 photograph of the spot ExPA to Ex.PH. The negatives were Ex.P1 (colly).
24. PW20 Sh. Feroz Khan the brother of deceased deposed that deceased was married to one Salim and from the said wedlock she had three daughters. He further stated that after Salim divorced his sister (deceased) she started residing with accused. He further stated that accused used to often quarrel with deceased and beat her and he had intervened many times and got their disputes settled. He further stated that about 20 days prior to the incident accused had quarreled with deceased pursuant to which deceased got him apprehended by police of PP Turkman Gate. He further stated deceased had then got the accused released hoping that he would mend his ways. He further stated that on 11.4.2012 he received information through police that deceased was murdered by accused and had identified dead body of deceased.
25. PW21 SI Yaspal Singh stated on 08.04.2012 he was posted as Incharge PP Turkman Gate PS Chandni Mahal had booked the accused in a Kalandra u/s 107/51 CrPC on the complaint of FIR No. 23/2012 State V. Nadeem 14 deceased as there was apprehension of breach of peace
26. PW22 HC Brahmanand stated on 11.04.2012 he was posted as MHC(M) at PS Jama Masjid and he had made relevant entries in register no. 19.
27. PW23 HC Sonu Kaushik, the Draughtsman proved the scaled site plan Ex.PW23/A.
28. PW24 HC Jagdish Prasad corroborated the version of PW
11.
29. PW25 Ct. Karan Singh stated that on 11.04.2012 he gave a copy of FIR to the Ld. Elka MM and the Senior Police Officers.
30. PW26W/Ct. Pooja Singh stated that on the intervening night of 1011.04.2012 she was posted at PCR, Control Room, PHQ and at about 2:03:35 hours, one PW6/Abrar Mirza called through his mobile phone and informed that at 1166 Sarai Mahal, Jama Masjid ek ladki ke head me sua ghusa diya hai. She further stated that she recorded the said information in PCR form Ex.PW26/A.
31. PW27 Ct Satender corroborated the version of PW11.
32. PW28 Ct. Shiv Kumar stated that on 10.04.2012 he was FIR No. 23/2012 State V. Nadeem 15 working in PCR van Oscar 59 and about 2.15 am on receiving message from Central PCR he reached the spot / house No. 1166, Sarai Mahal Jama Masjid where found one lady lying in unconscious condition on the bed and one screwdriver type instrument stabbed on her temple. He further stated that they shifted the lady to LNJP hospital where she was declared dead by the doctors. The dead body was left in the custody of the duty constable.
33. PW29 Retd. ASI Sohan Pal corroborated the version of PW
28.
34. PW30 Ct. Parvesh stated that he had deposited sealed pullandas in the FSL, Rohini.
35. PW31 Ct. Gurmeet Singh stated that on the date of incident, he posted in Mobile Crime Team that he had taken seven photographs of the deceased Shabana from different angles which were Ex.PW31/A to Ex.PW31/G. The negatives of the same were Ex.PW31/H (colly).
36. PW32 ASI Om Pal Singh stated that he was posted as Reader to SHO, PS Jama Masjid and on the directions of IO/ FIR No. 23/2012 State V. Nadeem 16 PW36 he checked the complaint register, as per the complaint register Smt. Shabana had lodged 2 complaints dated 17.02.2012 and 23.03.2012 against her husband Nadeem in respect of entries were made in the complaint register. Apart from above she had also lodged complainant against Nadeem on 10.04.2012. He stated that he handed over copies of all complaints and documents to IO/ PW36.
37. PW33 HC Raj Kumar stated on 08.04.2012 he was posted at PP Turkman Gate PS Chandni Mahal, Delhi when a PCR call was received informing that lady was beaten by her husband at Churiwalan Road. He stated that on receipt of the information he alongwith Ct. Neeraj reached at Gali Shankar were one lady Shabana was being beaten by accused Nadeem and he was abusing her. He further stated that in the meanwhile PW21/SI Yashpal also reached. The accused continued abusing and demanding Rs. 2,000/ from Shabana and saying that in case she did not give the money, he would kill her. PW33 further stated that PW21/SI Yashpal tried to pacify the accused but he did not heed to his advise, PW21/SI Yashpal arrested the accused FIR No. 23/2012 State V. Nadeem 17 Nadeem in the Kalandra u/s 107/151 CrPC as he was breaching peace.
38. PW34 SI Mohd Inam stated that on 24.02.2012 he was on emergency duty at PS Jama Masjid when at about 12.45 am the duty officer called him and informed him regarding quarrel at 1168, Churiwalan, Jama Masjid. Thereafter, he alongwith Ct. Vikas and W/Ct. Babita reached the above address where he met one Shabana Praveen who told him that her husband had beaten her, she was medically examined at LNJP hospital. He further stated that since it was a quarrel between the husband and wife, compromise took place and Shabana gave her written statement. He further stated that he handed over statement of Shabana Ex.PW34/A and her MLC Ex.PW34/B to IO/ 36.
39. PW35 Dr. Rajender Kumar Dy. Director FSL, Rohini proved biological analysis report Ex.35/A and his serological examination report Ex.PW35/B of the exhibits.
40. PW36 Inspector I.K Jha, IO of the case stated that on receiving information of the incident vide DD No. 7A he reached the spot house No. 1166, Sarai Mahal, Churwalan Delhi where FIR No. 23/2012 State V. Nadeem 18 the crime team was found present. He further stated that PW 11/SI Md. Faiyaz also arrived at spot and handed over to him MLC of deceased Shabana. IO further stated that crime team inspected th spot and took photographs at their instance and he listed the blood stained bed sheet and pillow from the spot and sealed the same with his seal and seized the same. IO further stated that in the meanwhile, PW24/HC Jagdish came to the spot and handed over to him the copy of FIR and rukka. IO further stated that he seized broken glass tumbler alongwith glass pieces found at the spot. IO also stated that crime team Incharge handed over to him the report. He further deposed that he prepared the site plan, recorded statement of witnesses at the spot thereafter he alongwith PW11, PW24 and PW27 went to the hospital where the duty Constable handed over to him sealed pullanda stated to contain the clothes of deceased and sample seal. Thereafter he went to the mortuary and he inspected the dead body of Shabana, one screwdriver was found inserted in her right temple. He further stated that accused was arrested at the instance of secret informer he was arrested. Accused had made FIR No. 23/2012 State V. Nadeem 19 disclosure statement. He further stated that after the postmortem, the autopsy surgeon handed over to him one sealed pullanda containing th screw driver and one sealed pullanda containing blood sample of the deceased alonwith samples seal which were taken into possession by him. He also stated he collected the PCR forms, copy of call book and log book of PCR. He also took into possession the copy of proceedings u/s 107/151 CrPC (DD No. 8 of PP Turkman Gate). He further stated that on 08.05.2012 he got the scaled site plan prepared through Draughtsman at the instance of PW3/ Ballu Qureshi. He also collected the postmortem report. He further stated that he sent sealed pullanda to FSL. He further stated that he had also collected the copy of complaints given by deceased against the accused prior to her death. He further stated that after completion of investigation he filed chargesheet.
41. The statement of accused was thereafter recorded u/s 313 CrPC. Accused denied all the allegations of prosecution witnesses and stated that he was innocent. He further stated that the deceased was a quarrelsome lady and lots of complaints were FIR No. 23/2012 State V. Nadeem 20 pending against her in the PS. He further stated that deceased had made a complaint against him in PS one day prior to her death when he demanded money from her for supplying artificial jewellery to her. Accused had examined his brother in his defence as DW1 who stated that deceased was sleeping in his house since one day prior to his arrest.
42. I have heard Ld. Addl. PP for State and Ld. counsel for accused.
43. Ld. defence counsel argued that the prosecution failed to prove its case beyond reasonable doubt as the sole eyewitness PW3/ Ballu Qureshi did not support the case of prosecution. It was further alleged that all the other material PWs were interested and partisan witnesses interested in falsely implicating the accused.
44. Ld. defence counsel also argued that the rukka was prepared on the statement of PW3 but PW3 stated in his examination in chief that he was illiterate and he did not know what was written by the police in his statement Ex.PW3/A and he did not ask the police to read over his statement to him before signing it. Ld. FIR No. 23/2012 State V. Nadeem 21 defence counsel contended that as PW3 had contradicted the version given in his statement Ex.PW3/A on all material facts as such the same was not worthy of credence.
45. It is to be noted that the prosecution relied upon direct evidence and circumstantial evidence, PW3/ Ballu Qureshi stated that in the year, 2012 he was residing in small room kothri no.3 and one lady Ruksana used to live in his adjoining room with her daughter and husband/ accused correctly identified. He further stated that he did not know about the relationship of Ruksana and accused. He also stated that at about 2.00 am when he was sleeping in his room when one Sarfraz, Hasan brother of Sarfraz came to his room and knocked at his door, and woke him. The said persons told him to accompany them and see what had happened to deceased. He deposed that he was initially reluctant to go to the house of deceased but thereafter he went and found she was lying on the bed and her legs were touching the floor. He further stated that Sarfraz and Hasan noticed the injuries on the head and ear of the deceased. He further deposed that injuries appeared to have to be caused by the screwdriver. He testified FIR No. 23/2012 State V. Nadeem 22 that he then came out of the house of deceased and in the meantime all tenants also came rushing out. PW3 further stated that he met one Abrar Mirza /PW6 who was standing on the road and he asked him to call police. PW6 then made a call the police and the police immediately reached the spot and deceased was removed to the hospital by PCR van. PW3 stated he did not accompany the deceased to the hospital. He further stated that police recorded his statement Ex.PW3/A. He also stated that he was illiterate and he did not know what had been written by the police in his statement. He further stated that he did not ask the police to read over his statement to him before he signed it. Ld counsel for accused further contended that PW3 who was eye witness had turned hostile and was cross examined by the Ld. Addl PP with the leave of the court. In his cross examination he admitted that accused and deceased were residing together since 3 years prior to the incident. He also admitted that site plan Ex.PW3/B bears his signatures. He also admitted that police had seized blood stained bedsheet, pillow and broken glass from the spot. The seizure memo of the same bear his signatures. FIR No. 23/2012 State V. Nadeem 23
46. It is to be noted that the testimony of a hostile witness need not be discarded in toto but the same can be accepted to the extent it is found to be dependable on a careful scrutiny thereof. In this regard, it has been held in Sat Paul Vs Delhi Administration 1976 I SC 727 as under: "It is a wrong assumption that the only purpose of cross examination of his own witness by a party is not contended on the witness being declared hostile or entire evidence being discarded", that the entire testimony of such witness could not be discarded and reliance on any part of statement of such a witness by both parties were permissible.
The position is that even in a criminal prosecution when a witness is crossexamined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the judge of fact to consider in each case whether as a result of such cross examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony."
47. It is pertinent to note PW3/ Ballu Qureshi stated in his cross examination by Addl. PP that deceased was residing with accused since the three years prior to the incident but PW3 FIR No. 23/2012 State V. Nadeem 24 denied that he had told the police that the deceased and accused used to claim that they were husband wife he was confronted with his statement Ex.PW3/A wherein it was so recorded. He denied that he had told the police that accused and deceased used to often quarrel and being their neighbour he used to intervene and get their disputes settled. He denied that he stated before the police that on the date of incident at about 2.00 am after hearing noise of quarrel he went to the room of accused and deceased and saw or that accused was sitting on the bed saying that he would finish their daily quarrels forever and would finish deceased. He also denied that he had told the police that accused inflicted injury with screwdriver on the right side temple (kanpti) of deceased and when Shabana / deceased starting shouting and crying accused fled away, he was confronted with his statement Ex.PW3/A wherein it was so recorded. He also denied that he told the police accused had inflicted upon deceased Sabhana with intention to kill her, he was again confronted with his statement Ex.PW3/A wherein the said fact was recorded.
48. From the deposition of PW3/Ballu Qureshi it is evident that FIR No. 23/2012 State V. Nadeem 25 he did not depose in terms of his statement given to the police. PW3 had however stated in his examinationinchief that he had accompanied Sarfraz and Hasan to the room of deceased and saw her lying in injured condition.
49. PW3 stated in his statement to police Ex.PW3/A that on hearing the noise from the room of accused and deceased at about 2.00 am on the intervening night of the date of incident when he went there and he saw accused thrusting a screwdriver in the head of deceased and accused fled away. In his deposition in court PW3 contradicted his previous statement. It is to be noted that the contradictions in the depostion of PW3 were with regard to material facts. However, PW3 stated that he saw deceased lying on the bed and on seeing the injury marks on the deceased he became perplexed. PW3 had admitted in his statement to police that accused and deceased were residing together since 3 years to prior to the incident.
50. The prosecution also relied upon circumstantial evidence.
The settled law is that circumstances from which the conclusion of guilt is to be drawn should be fully proved and such FIR No. 23/2012 State V. Nadeem 26 circumstances should must be conclusive in nature. In this regard it has been held by Hon'ble Supreme Court in Raja @ Rajender V. State of Haryana 2015 (II) SCC 43 as under: (I)the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2)those circumstances, should be of a definite tendency unerringly pointing towards guilt of the accused;
(3)the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4)the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
51. Section 101 of the Evidence Act which relates to burden of proof provides as under: "Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of those facts must prove that those facts exist. When a persons is bound to prove the existence of any fact, it FIR No. 23/2012 State V. Nadeem 27 is said that the burden of proof lies on that person."
52. Section 106 of the Indian Evidence Act, same as under:
"106. Burden of proving fact especially within knowledge When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
53. The, onus of proof means duty of establishing the case, the burden of which is on the prosecution, it never shifts. But after the prosecution has discharged its initial burden and accused takes plea of a fact within his special knowledge, he must prove it. The standard of proof of such plea is not a so high as in the case of prosecution. Section 106 of the Indian Evidence Act shifts the burden on the accused under the circumstances mentioned therein.
54. Thus a party who has special means of knowledge of a fact is under the obligation of proving that fact. Thus Section 106 of the Indian Evidence Act would apply when the facts are especially within the knowledge of the accused and it would not be possible or difficult for the prosecution to establish facts FIR No. 23/2012 State V. Nadeem 28 "especially within the knowledge of accused." In this regard it has been held by Hon'ble Supreme Court in Criminal Appeal No. 357 of 2005 State of Rajasthan Vs. Thakur Singh decided on June, 30, 2014 as under:
"The law therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is strong circumstance pointing to his guilt based on those facts."
55. According to the prosecution ; (i) The deceased Shabana died of homicidal violence. (ii) The accused used to beat the deceased and had extended threats to kill her. (iii) The deceased had lodged complaints against accused with the police.
56. PW4 Dr. Jatin Bodwal, SR, Department of Forensic Medicine, MAMC, Delhi who conducted postmortem on body of the deceased found the following injuries.
FIR No. 23/2012 State V. Nadeem 29 Injuries 1. 1 Stab wound 0.7 cm X 0.7 cm X 8 cm, circular, cranial cavity deep was present in the right temple region of forehead, 3 cm above lateral end right eyebrow and 8 cm from midline.
2. Bruise 5 cm X 5 cm, red, circular shaped was present on the front and outer aspect of right side of chest, 5 cm above costal margin. Internation Examination : On dissection of injury no. 1, a track was found which traverses right temporalis muscle then skull. In skull 0.7 X 0.7 cm, circular punched out defect was present in right temporal bone. Dura revealed 1 cm X 0.7 cm defect with bone piece underlying skull defect. In brain track traverse through right frontal lobe, anterior to right ganglia, right lateral ventricle, left lateral ventricle and it terminate in left frontal lobe. All the abovementioned structures in brain were direction of track was downward,backward and inward. Subdural hemorrhage was present on the right temporooccipital region and clotted blood was present in the ventricles. Brain was edematous and its weight was 1278 grams. No abnormality was detected in respect of other organs.
57. According to PW4 all the injuries were antemortem in FIR No. 23/2012 State V. Nadeem 30 nature and fresh in duration. The cause of death was craniocerebral damage consequent upon penetrating taruma to the head (via inury no. 1) as result of forceful thrust of a metallic screw driver (which was recovered in situ), which was sufficient to cause death in the ordinary course of nature. Injury no.2 was caused by blunt force trauma. Thus from the medical evidence it is established that death of deceased was homicidal.
58. The FSL result shows that human blood of Bgroup was found on the exhibits bedsheet, pillow, lady's shirt, screw driver and blood stained gauge cloth. IO had stated that after the postmortem the autopsy surgeon handed over to him a sealed parcel containing screw driver, blood sample of deceased and sample seal which were seized by him vide seizure memo Ex.PW24/A.
59. Culpable Homicide is defined in section 299 IPC as under: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
FIR No. 23/2012 State V. Nadeem 31
60.Section 300 IPC defines murder as under :
Section 300 provides that culpable homicide is murder except in cases coming under Exception.
Section 300 CrPC Murder. Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly. If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly. If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly. If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1. When culpable homicide is not murder- Culpable homicide is not murder if the offender,whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provision; FIR No. 23/2012 State V. Nadeem 32 First That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly - That the provocation is not given by anything done in the done in the lawful exercise of the right of private defence. Explanation - Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
61. Thus, in view of section 299 IPC the offence of culpable homicide consists in the doing of an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that accused is likely by such act to cause death.
62. What distinguishes culpable homicide from murder is special mensrea which consists in one of the four mental state mentioned in Section 300 of IPC. When the injury is intentional and sufficient to cause death in ordinary course of nature and the death follows the offence as murder. Hence, culpable homicide will be murder if the injuries inflicted is not merely one likely to FIR No. 23/2012 State V. Nadeem 33 cause death but is so grave that it is sufficient in ordinary course of nature to cause death. If the facts of the case come within the definition of murder, then the court has to see whether the facts come within any exception of Section 300 IPC.
63. It was the case of prosecution that accused used to quarrel with deceased and beat her and demand money from her and threaten to kill her. PW5, 7, 9, 10, 12, 13, 20 had stated that deceased was residing with accused and he used to beat her and threaten to kill her. The version of above PWs was corroborated by independent witnesses PW3/ Ballu Qureshi as regards the fact that accused and deceased were residing together. It was established from the evidence of PW5, 7, 9, 10, 12, 13 and 20 that accused used to constantly abuse and beat the deceased and extended threats to kill her.
64. The version of PW5, 7, 9, 10, 12, 13 and 20 was corroborated by PW21. PW21/ SI Yashpal had stated that on 08.04.2012 on receiving DD No. 38 PP T.Gate, he alongwith HC Raj Kumar and Ct. Neeraj went to Shankar Gali Bazar Sitaram where he found accused abusing and demanding money from FIR No. 23/2012 State V. Nadeem 34 deceased and saying in case she did not give him money he would kill her. PW21 denied the suggestion in his cross examination that he had falsely implicated the accused in the Kalandra. It is to be noted that accused had stated in his statement u/s 313 CrPC that he was arrested in a Kalandra u/s 107/151 CrPC on 08.04.2012. It is also to be noted that IO/ PW 36 had proved the complaints lodged by deceased against accused at PS vide DD no. 3A and 38B dated 24.02.2012.
65. It is well settled that in a criminal trial burden of proving guilt is on the prosecution and that burden never shifts however, there may be certain facts relating to the offence which may be especially in the knowledge of accused and it may be impossible to the prosecution to prove those facts. Thus, it is for accused to explain said facts and the burden of proving those facts is on him. The prosecution had established the death of the deceased was homicidal. It has been proved by the prosecution deceased died unnatural death in the room occupied by the accused and deceased. Thus it was for the accused to explain the cause of the unnatural death. In my view provision of the 106 Evidence Act is FIR No. 23/2012 State V. Nadeem 35 applicable to the present case and strong presumption arises that deceased was murdered by the accused. It is to be noted that offence took place inside the dwelling house where accused and deceased were residing and accused had all the opportunity to commit the crime. The initial burden to establish the case was undoubtedly on the prosecution. But as prosecution had discharged its initial burden, the burden was on the inmates of the house accused to give a cogent explanation as to how the crime was committed. Though the eyewitness PW3 turned hostile bu the circumstantial evidence points to the guilt of accused as the offence was committed in the dwelling house where accused and deceased were residing and accused did not often explanation as to the injuries on deceased which was a strong circumstance which indicates that he committed the crime. Hon'ble Supreme Court has held in State of Punjab Vs. Karnal Singh 2003 11 SCC 271 that laws does not enjoy a duty on the prosecution to lead evidence of such a character which is almost impossible to be led or extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of FIR No. 23/2012 State V. Nadeem 36 leading having regard to the facts and circumstances of the case. Hence, it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially with the knowledge of any person, the burden of proving that fact is on him.
66. It has been held in (1992) 3 Supreme Court case 106 Ganeshlal Vs. State of Maharashtra as under: "when death caused while deceased in the custody of the accused, accused is obliged to give a plausible explanation for the cause of the death in his statement u/s 313."
67. It is to be noted that the burden on the accused was only to explain cause of unnatural death of the deceased in their room.
68. The contention of Ld. counsel for accused was that there was no documentary proof to show the accused was residing at the scene of crime with deceased, and that in this regard IO stated in his crossexamination that PW3/ Ballu Qureshi the owner of place of occurrence stated that he did not have any documentary proof of ownership of said property. IO also stated that deceased was residing as a tenant but there was no written rent agreement FIR No. 23/2012 State V. Nadeem 37 between him and deceased, IO also stated that clothes or other belonging of accused were not found in the said room. However, it is to be noted that IO/PW36 had stated in his cross examination that there was enough evidence to show accused was living with deceased. It is pertinent to note that accused did not challenge the testimony of PW3 regarding the fact that he was residing with deceased.
69. It is to be noted that there was no evidence that somebody else entered the room of deceased and murdered her. The testimonies of PW 5, 7, 9, 10, 12, 13 and 20 was consistent regarding the fact that accused and deceased were residing together at the time of incident. PW3/an independent witness also supported the version of prosecution to the extent that accused and deceased were residing together since 3 years prior to the incident.
70. Thus in the instant case from testimonies of PWs 5, 7, 9, 10, 12, 13, and PW20 prosecution proved deceased and accused were residing together at the scene of crime. It is to be noted that the fact that the eyewitness PW3/complainant turned hostile FIR No. 23/2012 State V. Nadeem 38 raises suspicion that there is more to the ease than meets the eye. Accused in his statement u/s 313 CrPC stated he did not know how deceased had sustained injuries, in my view the explanation given by him is not satisfactorily. Accused is facing trial for murder of deceased inside their dwelling house as such accused was under obligation to give explanation regarding the cause after death. Accused examined his brother Nafees in his defence evidence as DW1 who stated that accused was sleeping in his house when he was arrested by the police. From the testimony of DW it is evident that accused had hidden in the house of his brother to evade his arrest.
71. Accused was not required to prove his innocence but he was only explain the cause of unnatural death of his wife which he failed to do. There is evidence that accused used to absue and beat the deceased and threaten to kill her and two days before the fateful incident there was quarrel between them the deceased lodged a complaint with police and accused was booked proceedings u/s 107/151 CrPC. The quarrel had occurred in the room occupied by the accused and deceased.
FIR No. 23/2012 State V. Nadeem 39
72. The principle embodied u/s 106 of the Evidence Act and is not intended to shift burden on accused but it applies to case where prosecution succeeded in proving facts from which reasonable inference could be drawn regarding the existence of certain other facts. Thus as the offence was committed in secrecy inside the dwelling house at around 2.00 am in the night and the initial burden was discharged by the prosecution in view of Section 106 of the Evidence Act there would be corresponding burden on the inmate/accused to give cogent explanation as to how the crime was committed. The accused could not get away by simply stating that he did not know that deceased was found lying dead in the house. It is to be noted that Illustration (b) of Section 106 Evidence Act provides as under: "A is charged with travelling in railway without ticket. The burden of proving that he had a ticket is on him".
73. As regards the testimony of an partisan interested witness. It is noted that it only requires scrutiny with more care and caution, so that neither the guilty escapes nor innocent wrongly convicted. Thus if on careful scrutiny, the evidence of the family members FIR No. 23/2012 State V. Nadeem 40 of deceased is found to be reliable and probable to be acted upon. Moreover, nothing was elicited in their crossexamination of PW5, 7, 9, 10,12,2 13 and 20 that being the family members of deceased they had deposed inimically towards accused. I have scanned the evidence of the above witnesses carefully. I find that they are truthful witnesses as their versions stand corroborated by PW21 and PW34, and 36 who stated that deceased had lodged complaints against accused prior to her death. It is to be noted that the testimony of PW7 had gone unchallenged and the material part of evidence of PW5, 9, 10, 12, 13 and 20 was not subjected to cross examination except suggesting them that they were deposing falsely. Thus under these circumstances, in my view they are truthful and reliable witnesses.
74. Now coming to the question of intention as to whether the case falls u/s 302 or 304 PartI or 304 Part II. In the instant case as per the postmortem report there was stab wound .07 cm x .07 cm x 8 cm on the temple region of deceased was sufficient to cause death in the ordinary course of nature.
75. In this regard it has been held in AIR 1958 SC 465 Virsa FIR No. 23/2012 State V. Nadeem 41 Singh V. State of Punjab that culpable homicide is murder u/s 300 clause thirdly if prosecution establishes (1) presence of bodily injury (ii) nature of such bodily injury (iii) intention on part of accused to inflict that particular bodily injury (iv) injury was sufficient to cause death in the ordinary course of nature. Thus as in the instant case the injuries are proved the intention to cause them will be presumed unless evidence or circumstance warrant opposite conclusion.
76. Thus the nature of injury proves the intention to cause death or intention of causing bodily injury which is sufficient to cause death in the ordinary course of nature was made out. The nature of weapon used by the accused and the fact that the injury was inflicted on the vital part of body of deceased leaves no room for doubt that intention was to cause death or at in all event bodily injury sufficient to cause death in the ordinary course of nature.
77. The intention to cause death can be gathered from the nature of weapon used the part of body on which injury is inflicted, the force used in causing injury. The fact that deceased died at the spot itself shows the force with which weapon was used. FIR No. 23/2012 State V. Nadeem 42
78. The facts established are inconsistent with the innocence of accused but consistent with the hypothesis that accused committed the gruesome murder of deceased. The circumstantial evidence is thus complete and consistent with the only conclusion that accused committed the crime.
79. The established circumstances and explanation of accused exclude the possibility of anyone else being the perpetrator of crime.
80. For the foregoing reasons, I am of the view that prosecution has succeeded in establishing its case against the accused beyond reasonable doubt. Accused is held guilty for the offence u/s. 302 IPC.
81. Accused to be heard on point of sentence on 19.09.2018.
Announced in the open court Digitally signed by POONAM POONAM CHAUDHRY th CHAUDHRY on this 10 day of September, 2018 Date: 2018.09.19 14:39:21 +0530 (Poonam Chaudhry) Additional Sessions Judge02 Central District, THC, Delhi. FIR No. 23/2012 State V. Nadeem 43