Delhi District Court
State vs Haider Ali on 31 October, 2023
IN THE COURT OF MR. VISHAL GOGNE:
ADDITIONAL SESSIONS JUDGE02
(EAST) KARKARDOOMA COURTS, DELHI
S.C. No.1536/2016
FIR No.679/2014
U/s 302/394/397 IPC
PS Preet Vihar
State
versus
Haider Ali
S/o Mohd. Sayeed
R/o H.No. 227
Near Bada Chowk
Rohtash, House of Bhati
Mandawali, Fazalpur
Delhi
Date of Institution : 21.01.2015
Reserved for Judgment on : 26.09.2023
Judgment pronounced on : 31.10.2023
JUDGMENT
1. The present trial is predicated on the FIR (Ex. PW1/B) dated 19.10.2014 registered under sections 394/397/302 IPC on the complaint of SI Kishanveer Bhati made on the same day.
Facts and allegations disclosed in the chargesheet
2. The said police official had proceeded to the place of occurrence viz House No. 135, Chitra Vihar, Delhi upon DD No. 19A received at PS Preet Vihar through a PCR call. The said DD recorded information regarding a lady having been killed by strangulation in the above house. FIR No.679/2014 State Vs. Haider Ali Page No. of 1 /46
3. When SI Kishanveer Bhati reached the house of the victim alongwith constable Tek Ram, he found the dead body of a woman lying on the bed in a room on the ground floor with her face covered by a pillow and the feet hanging below the bed. As SI Kishanveer Bhati removed the pillow, he noticed injuries to the head, face, ear and nose of the victim. He found blood to be flowing out from the wounds and blood also to be lying on the bed as well as floor of the room. He specifically noted both ears of the victim to be in a torn condition. Upon enquiry, her name was found to be Suman Bala Bhatnagar, aged 73 years. The name of her late husband was learnt to be Jasvansh Kishor Bhatnagar. The complainant police official expressed in his report that the torn ears of the victim indicated that someone had robbed the jewelery/articles worn by her in the ears and murdered her in the course of the robbery.
4. While SI Kishanveer Bhati was present at the site, the beat official as well as senior officers also reached the spot. The crime team was asked to reach the place of occurrence and SI Kishanveer Bhati dispatched constable Tek Ram with the rukka recommending the registration of the FIR under sections 394/397/302 IPC.
5. Upon registration of the FIR, the investigation was assigned to Inspector Subhash Chandra who got the site plan prepared and the place of occurrence inspected as well as photographed through the crime team. The crime team purportedly lifted the chance prints from the place of occurrence.
FIR No.679/2014 State Vs. Haider Ali Page No. of 2 /46
6. Subsequently, the investigating officer enquired about the incident from a resident of the first floor of the house in question, namely Anjali Mishra, who became the prime witness for the prosecution.
7. She purportedly made a statement revealing that at about 4:00 pm on 18.10.2014, as she was sitting in the park outside her house, she saw accused Haider entering the house of her landlady and leaving the house at about 6:00 pm on a motorcycle with a bag in his hand. She maintained that the motorcycle was white in colour from the front side and red from the top. Anjali Misha further stated that Haider used to work as a carpenter in the colony and was a frequent visitor to the house of the victim. When Anjali Mishra returned to her room, she noticed the door of her landlady (victim) to be closed from the outside. She speculated that the landlady had probably gone out of her house. On the next day, however, when Anjali Mishra called the landlady for water, there was no response and the newspaper was seen to be lying outside the house of the victim. Subsequently, when the husband of Anjali Mishra returned home, she asked him to request the landlady to start the water. Her husband now saw from the window that the victim was lying on the bed with a pillow on her face. He then telephonically called the son in law of the victim who soon reached the spot. The police was also called and it came to be known that the victim had been murdered.
8. The investigating officer recorded in the chargesheet that when the CCTV footage from a local camera was shown to Anjali and other persons, they stated that the person FIR No.679/2014 State Vs. Haider Ali Page No. of 3 /46 approaching on a motorcycle looked like Haider. Accused Haider was then arrested from the house of his sister at Madanpur Khadar. A mobile phone of the make Nokia 101 bearing two SIM cards, of Airtel and Idea, was recovered from him. One deactivated SIM card of Airtel was also recovered from the accused alongwith a driving licence and Rs. 750/ in cash.
9. During investigation, accused Haider purportedly disclosed about Rs. 1100/ stolen by him from the bed of the victim. This amount was comprised of two currency notes of Rs. 500/, one currency note of Rs. 20/ and eight currency notes of Rs. 10/. One of the currency notes of Rs. 500/ was bearing blood. This cash amount was seized by the investigating officer. The accused purportedly also got recovered clothes worn by him during the incident which too were bearing blood stains.
10. The accused is alleged to have next got recovered motorcycle No. DL 5SA J6056 of the make Yamha FZS alongwith a helmet. The chargesheet alleges that the accused next got recovered the hammer used by him in the offence and certain other tools, contained in a bag, from the roof of a small room situated inside a park in Preet Vihar. The hammer was also stated to be bearing blood stains.
11. The post mortem of the victim was conducted and the accused was taken on police custody remand. The accused now purportedly again made a disclosure statement revealing that he had hidden "कक कणडल/kundal" (ear rings) of the victim in his house. The accused then got recovered both ear rings from a bag of tools kept in his house. These ear rings were FIR No.679/2014 State Vs. Haider Ali Page No. of 4 /46 reportedly having some hair stuck on them.
12. The investigating officer next got recovered CCTV footage from a camera installed at a neighbouring house bearing No. 113, Chitra Vihar and the exhibits of the investigation were sent to the FSL while the chance prints were sent to the fingerprint bureau for opinion. The FSL found the CCTV footage to be unaltered. The call details of the accused also purportedly revealed his location to be at Chitra Vihar at about 5:17 pm on 18.10.2014.
13. The chargesheet thus came to be filed against the accused under sections 302/394/397 IPC.
Charge
14. The accused has faced trial upon the following charge:
That on 18.10.14 between 4.00 p.m. to 6 p.m., you committed house trespass at H.No.135, Chitra Vihar, Radhu Palace, Delhi, belonging to Smt. Suman Bala Bhatnagar, within the jurisdiction of PS Pandav Nagar, in order to commit robbery and causing her death and thereby committed an offence punishable U/s 449 IPC.
Secondly, on the aforesaid date, time and place, you robbed Smt. Bala Bhatnagar of her wearing jewellery and while committing robbery, you intentionally caused multiple injuries on her person and caused her death and thereby committed an offences punishable U/s 394/302 IPC and within the cognizance of this court.
And I direct that you be tried by this court for the above said offence.
District & Sessions Judge (East) KKD Courts, Delhi/11.02.2015
15. The accused pleaded not guilty to the above articles of charge.
FIR No.679/2014 State Vs. Haider Ali Page No. of 5 /46 Prosecution Evidence
16. The prosecution examined 25 witnesses in its cause.
17. Before adverting to the deposition of the public witnesses who related either to the accused being lastly seen with the victim or having had a previous motive to harass and intimidate the victim, the statements of the other witnesses may be summarised. These other witnesses comprised the police officials who had a nexus with the present investigation from the stage of the initial receiving of information regarding the incident till the conclusion of the investigation.
18. PW20 (HC Dhiraj Singh) was the police official posted at the Preet Vihar police station on 19.10.2014 who, in his capacity as the Duty Officer from 8:00 am to 4:00 pm, received a call at about 3:25 pm from the police control room regarding a lady having been strangulated in the area of Laxmi Nagar, District Centre, Delhi. This witness proved the said DD entry bearing No. 19A recorded by him upon the above information as Ex. PW20/A. He stated that he provided this information telephonically to SI Kishanveer Bhati (PW16) who alongwith constable Tek Ram (PW8) left the police station for the place of incident.
19. The second duty officer (Shensar Vir) from the concerned police station, whose hours of duty were from 4:00 pm to 12:00 in the night of 19.10.2014, deposed as PW
1. He testified that he had received a rukka from Constable Tek Ram (PW18), having been sent by SI Kishan Veer FIR No.679/2014 State Vs. Haider Ali Page No. of 6 /46 (PW16), for registration of the FIR. The FIR No. 679/2014 under sections 394/397/302 IPC was got recorded by him through a computer operator namely Constable Bharat. PW 1 proved his endorsement at point 'X' on the rukka Ex. PW1/A and also the copy of the FIR as Ex. PW1/B.
20. The intervening events between the acts of the two duty officers were performed by constable Tek Ram and SI Kishan Veer (PW8 and PW16). Their deposition was in similar vein. They deposed that upon receipt of the information with the duty officer and the DD entry being assigned to PW16, both of them had reached the place of incident and found the dead body of a woman on the bed in a room on the ground floor. Both police officials deposed that a pillow was found lying on the face of the deceased. PW16 additionally described the position of the victim as legs hanging down from the bed. PW16 also stated that on removing the pillow from her face, he noticed injury marks on her head and blood to be oozing out from her mouth, ears as well as nose. PW16 further noticed blood to be lying on the bed and on the floor. Pertinently, PW16 observed the ear lobes of the victim to be torn.
21. PW16 deposed that after the crime team was summoned to the spot, the name of the deceased was found, from the persons who had gathered at the spot, to be Suman Bala Bhatnagar and that he had prepared the rukka after spot observations. Further, that police officials from the area, including the beat officers reached the spot. PW16 now handed over the rukka to PW8 and left for the police station at about 4:25 pm. The rukka was exhibited by PW16 as Ex. FIR No.679/2014 State Vs. Haider Ali Page No. of 7 /46 PW16/A.
22. PW8 and PW16 similarly deposed that investigation of the case was assigned to Inspector Subhash Chandra (PW
24).
23. After the crime team reached the spot and inspected the crime scene, constable Tek Ram (PW8) reached the spot with the FIR and rukka. These were handed over to Inspector Subhash Chandra who lifted the blood samples, earth control, samples and earth smeared with blood. These samples were seized through memo Ex. PW16/B. PW16 also described the IO as having lifted a cup and a steel glass lying on a table in the room which were sealed and seized through seizure memo Ex. PW16/C.
24. According to PW16, the IO next lifted the blood stained dupatta, pillow and bed sheet from the room. These too were sealed and seized through memo Ex. PW16/D.
25. PW8 and PW16 corroborated each other in deposing that the body of the deceased was deposited at the mortuary by PW8.
26. On the next day i.e. 20.10.2014, PW8 and PW16 got identified the dead body through her children (PW4 and PW21). These identification memos were proved as Ex. PW8/A and PW8/B respectively. PW16 received three sealed pullandas and sample seals from the Autopsy Surgeon which were seized through memo Ex. PW8/C. These parcels were stated to be containing the clothes of the deceased, sample of her scalp hair and blood stained cloth piece.
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27. When the three parcels were opened during the deposition of PW16, these were found to contain a dupatta with dark brown stains, a pillow with brownish green stains and a bed sheet of blue colour having dirty brown stains. These were identified by PW16 as Ex. PW16/P1, Ex.PW16/P2 and Ex. PW16/P3.
28. Similarly, other sealed parcels, being case property were found to contain the cup, steel glass, gauzed cloth, cemented material with brown stains and cemented material which were identified by PW16 as Ex. PW16/P4, Ex. PW16/P5, Ex. PW16/P5, Ex. PW16/P6, Ex. PW16/P7 and Ex. PW16/P8 respectively.
29. As seen above, the initial investigation was carried out by PW16 (deemed to be the first IO) and supported by PW
8.
30. The subsequent investigation came to be conducted at the hands of inspector Subhash Chand (PW24) who was accompanied during various investigative processes by SI Praveen and SI Yogesh Kumar (PW14 and PW15 respectively).
31. Most of the documents relating to seizure of the various case properties were proved by PW14 and corroborated by PW15 as well as PW24.
32. These witnesses confirmed each other in deposing that the accused was arrested as he was approaching the house of his sister at B51, Kanchan Kunj, Khadar and that he had been arrested and searched through arrest memo and personal search memo Ex. PW14/A and Ex. PW14/B respectively. His FIR No.679/2014 State Vs. Haider Ali Page No. of 9 /46 disclosure statement was identified as Ex. PW14/C while the currency notes of Rs. 1100/ were seized through memo Ex. PW14/D. The mobile phone of the make Noika, purportedly recovered from the accused, was recorded in the seizure memo Ex. PW14/E. The accused having disclosed that he had used the motorcycle of a friend namely Ashok Kumar to reach the place of occurrence, the said motorcycle of the make Yamha FZS bearing No. DL 5S AJ 6056, alongwith its helmet, were seized through memo Ex. PW7/A.
33. This seizure memo had previously been proved by the owner of the said motorcycle namely Ashok Kumar (PW7) as Ex. PW7/A. He had deposed that he had parked the motorcycle at the house of Rizwan (brother of the accused) on 18.10.2014 as they were to attend a marriage at Dasna. Further, that he had taken his motorcycle back from the house of Rizwan on 19.10.2014. This witness further identified the photographs of the motorcycle as Ex. PW7/1 to Ex. PW7/4 and the motorcycle itself as Ex. P1.
34. Reverting to the deposition of PW14, PW15 and PW 24, these witnesses deposed that the accused had taken the police team to the park situated at C Block, Preet Vihar and got recovered one bag containing tools from the roof of a room inside the park. Further, that the accused had taken out a hammer having blood stains from the bag and handed over the same to PW24. The seizure memo of the hammer was proved as Ex. PW14/G. A subsequent disclosure statement was additionally recorded from the accused and was identified as Ex. PW14/H. In consequence of this purported disclosure, the accused got recovered two gold ear rings, FIR No.679/2014 State Vs. Haider Ali Page No. of 10 /46 having some hair from his room at house No. 227, near Bada Chowk, Mandawali, Fazalpur. These ear rings were taken into possession by the IO and sealed. The seizure memo of the same was Ex. PW14/J. The seizure memo of the clothes of the accused, pertaining to one full sleeve shirt and trousers, was tendered in evidence as Ex. PW14/F.
35. PW24, being the investigating officer additionally proved certain documents including the rukka, previously exhibited as Ex. PW16/A and the FIR already Ex. PW1/B. He also proved the site plan Ex. PW24/A, apart from reaffirming the already exhibited photographs of the crime scene (Ex. PW6/A1 to Ex.PW6/A12). He next proved the seizure memo of the blood, blood stained earth and earth control lifted by him from the place of occurrence as Ex. PW16/B. He also reiterated the seizure memo of cup and glass seized from the table in the room where the incident occurred as Ex. PW16/C. PW24 further proved the seizure memo of the blood stained dupatta of the deceased, blood stained pillow and blood stained bed sheet as Ex.PW16/D.
36. PW24 next stated that he had collected CCTV footage from a camera installed at the house of a local resident namely Surender Pal Singh and found upon inequiry that Anjali had seen Haider Ali on 18.10.2014 while she was present at the park as he reached the place of occurrence on a motorcycle. Also, that Anjali had identified Haider Ali from the CCTV footage. The seizure memo of the hard disks from the CCTV system of Surender Pal Singh was proved as Ex. PW24/D while the certificate under section 65B, bearing the signatures of PW24 was Ex. PW24/E. FIR No.679/2014 State Vs. Haider Ali Page No. of 11 /46
37. When the video footage was played during the course of the deposition of PW24, various video files were seen by the witness. He deposed that a motorcycle rider was seen approaching while wearing a helmet in video file CH03 20141018161253 (VLC Media File.avi) and later, when the said person approached the motorcycle, he was seen without helmet in video file No. CH0320141018175219 (VLC Media File.avi). The said footage had already been tendered in evidence during the cross examination of PW2 upon the said witness being confronted by the ld counsel for the accused.
38. PW24 also deposed that the footage bearing file No.CH0320141018173009 (VLC Media File.avi) showed three children coming out of the park and one lady namely Anjali (PW2) coming inside the park.
39. The crime team members who came to the spot, as deposed by PW16, were also examined by the prosecution. These included the incharge (SI Sanjay Saxena), the fingerprint lifter (Constable Ashok) and the photographer (Constable Manoj) who deposed as PW3, PW5 and PW6 respectively.
40. PW3 stated that on receiving information at about 4:15 pm from the Control Room East District, he reached house no. 135, Chitra Vihar, Delhi alongwith the mobile crime team and found the dead body of a female lying in a bed in a room on the ground floor. The same description of the body of the deceased was given by PW5 and PW6. PW3 now inspected the spot while PW5 lifted the chance FIR No.679/2014 State Vs. Haider Ali Page No. of 12 /46 prints from a tea cup and steel glass lying on the table. These were deposited, as deposed by PW5, with the photo section of the East District Crime Team. The photographs of the crime team were taken by PW6 who deposed that he had taken a total of 12 pictures and submitted the negatives for developing the same into photographs. He proved the photographs as Ex. PW6/A1 to Ex. PW6/A12 and the negatives as Ex. PW6/B1 to Ex. PW6/B12.
41. PW3 prepared a report of the process undertaken by the crime team and proved the same as Ex. PW3/A.
42. The Assistant Draughtman from the Crime Branch deposed as PW17 and proved the scaled site plan (Ex.PW17/A) prepared by him at the place of incident on the pointing out of Inspector Subhash Chander (PW24).
43. The police official (Constable Ghasi Ram) who handed over the exhibits at the FSL deposed as PW18 to state that these had been handed over to him earlier by the MHCM namely HC Harender.
44. The various entries in register no. 19 regarding the several parcels of case property deposited at police station Preet Vihar were proved by MHCM HC Harinder (PW22). According to him, eight parcels, sealed with seal of 'SC' were deposited by PW24 at the malkhana on 19.10.2014 while 14 parcels, sealed with the seal of 'SC' and one motorcycle bearing no.DL5SAJ 6056 were deposited by PW 24 on 20.10.2014. Also, on 20.10.2014 itself, SI Krishan Veer Bhati (PW16) deposited three sealed pullandas, sealed with seal of 'AAA' and three sample seals with him. FIR No.679/2014 State Vs. Haider Ali Page No. of 13 /46
45. PW22 further stated that on 15.11.2014, PW24 deposited one parcel with him. Also, that on 31.10.2014, PW22 had sent 13 sealed pullandas and two sample seals to FSL Rohini through constable Ghasi Ram.
46. The above entries were proved as Ex. PW22/A, Ex.
PW22/B and Ex. PW22/C while the entry dated 31.10.2014 was mentioned against entry Ex. PW22A itself.
47. PW22 next deposed that on 21.07.2015, the FSL result had been received back through constable Ravinder and that the same was also mentioned against entry Ex. PW22/A.
48. PW22 lastly brought the original road certificate whereby constable Ghasi Ram had taken the case property to the FSL and proved the copy of the same as Ex. PW22/D. The acknowledgment from the FSL was tendered in evidence as Ex. PW22/E.
49. Two expert witnesses were also examined by the prosecution as part of the forensic evidence. While the doctor (Dr. Akash Jhanjee) who performed the post mortem on the victim deposed as PW19, the expert from the FSL who had rendered the biological, serological and DNA examinations of various exhibits deposed as PW25.
50. PW19 recorded the cause of death in the instant case to be combined effect of cranio cerebral damage and haemorrhagic shock, both of which were sufficient to cause death in ordinary course of nature individually as well as collectively. All the injuries were antemortem, fresh in nature and caused by blunt force impact.
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51. The essence of the statement of PW25 was that the blood of the deceased had been detected in her clothes, bed sheet, pillow, shirt and the hammer (weapon of offence).
52. An official from the telecom company Idea deposed as PW23 with respect to the documents related to the mobile phone used by the accused. The customer application form and the ID proof of the accused were tendered in evidence by PW23 as PW23/A and Ex. PW23/B.
53. The inquest papers, the request for post mortem, the death report form and the dead body handing over memo were proved by PW16 as Ex. PW16/E, PW16/F, PW16/G and PW16/H respectively.
Statement under section 313 Cr.PC
54. When the deposition of the prosecution witnesses was projected to the accused under section 313 Cr. PC, he denied any incrimination and rather asserted that he had been falsely implicated after being illegally lifted from his house bearing no. 227, Mandawali, Fazalpur by the police in the night of 19.10.2014. Further, that he had been forcefully asked to hold a cup and glass for giving fingerprint expressions on the same. The accused asserted that he had infact never even worked as a carpenter and never visited the house of the deceased. He denied that the motorcycle in question belonged to him and stated that his face was not visible in the CCTV footage filed by the investigating officer.
Defence Evidence
55. The accused also led evidence in his behalf through FIR No.679/2014 State Vs. Haider Ali Page No. of 15 /46 three witnesses.
56. DW1 (Mohd. Rizwan) was the brother of the accused who stated that he had attended a marriage ceremony at Dasna at about 11:00 am on 18.10.2014 with Ashok Kumar (PW7) and two other persons namely Danish & Pradeep. Further, that Ashok Kumar had parked his motorcycle of the make Yamha bearing No.6056 at his house and given the keys to him. DW1 next stated that the helmet remained with Ashok Kumar and that they returned from the marriage before 5:00 pm on 18.10.2014 from Dasna. Also, that Ashok had then taken away his motorcycle near his house. DW1 next stated that at that time, his brother Haider was also present and did not go outside the house after they had returned from Dasna.
57. DW1 lastly deposed that his brother Haider Ali, the accused, was not visible in the CCTV footage at any point of time.
58. This witness was cited, during the course of final arguments, by the ld counsel for the accused as having discounted the possibility of the accused having used the motorcycle in question as the said vehicle never remained available for his use around the time of incident. The counsel further agitated that DW1, by referring to the CCTV footage, had denied the possibility of the accused driving the motorcycle .
59. DW2 was an official from the newspaper 'Dainik Jagran' who proved the original copy of the edition of the said newspaper dated 20.10.2014 as Ex.DW2/1. This edition FIR No.679/2014 State Vs. Haider Ali Page No. of 16 /46 contained a news item identified as Mark D4/DA wherein the incident of the murder of the present victim namely Suman Bala was reported. The ld counsel for the accused had referred to this news article to submit that even the reporting in the media reflected a motorcyclist, wearing a helmet, driving towards the house of the victim. The effort of the counsel was to further the argument that the face of the motorcycle rider could not have been identified due to the helmet. The news article also expressed the suspicion that the head of the victim had been banged on the wall. Consequently, the allegations of the use of a hammer were sought to be doubted by the ld counsel for the accused.
60. The last witness for the accused was his childhood friend namely Amit Kumar Singh (DW3). This witness deposed that Rizwan, the younger brother of the accused, had informed him on 19.10.2014 that the police officials from PS Preet Vihar had arrested the accused at about 10:00 pm on 19.10.2014. Further, that after a few months, when he was shown footage of the date of incident by Rizwan, the motorcyclist was visible in the same. DW3 further claimed that the said motorcyclist was not accused Haider Ali. DW3 then went on to identify Haider Ali in court. The counsel for the accused was essentially of the submission with respect to DW3 that those who were long known to the accused were able to state with certainty that accused Haider Ali was not the motorcyclist seen near the house of the deceased on the date of incident.
FIR No.679/2014 State Vs. Haider Ali Page No. of 17 /46 Final Arguments
61. The ld prosecutor for the State relied in good measure on the deposition of PW2 (Anjali Mishra) to establish the presence of the accused at the residence of the victim in the evening of the date of incident. It was submitted that being familiar with the accused and the daily routine of the victim, PW2 was well placed to identify the assailant and the want of any other explanation for the murder of her landlady. It was the assertion of the ld prosecutor that no other tangible construction could be placed on the chain of events but for the assault and robbery upon the victim followed by her murder by the accused.
62. The forensic evidence in the form of DNA of the victim being found on the hammer recovered at the instance of the accused was cited as further proof of his sole complicity in the offence.
63. The ld prosecutor maintained that the CCTV footage, while not being conclusive regarding the identity of the person driving the motorcycle, did indicate that the accused was possibly seen driving a motorcycle near the place of incident immediately prior to its occurrence. It was the effort of the ld prosecutor to convince the court that the CCTV footage was allied evidence and not the principal factor in proving the charge of murder against the accused.
64. In defence, the ld counsel for the accused argued that the version of the accused having been lastly seen with the victim did not carry much credibility as PW2 was a contrived witness who did not observe the accused with any FIR No.679/2014 State Vs. Haider Ali Page No. of 18 /46 element of certainty and also did not rely on the CCTV footage during her deposition in court for purpose of identifying him. Also, that she was probably prodded by local persons to convey or agree with the theory of the investigating officer regarding accused Haider being the assailant. The counsel agitated that the sole testimony of PW2 was not adequate for a finding against the accused on the standard of proof beyond reasonable doubts. It was further submitted that PW16 (SI Kishanveer Bhati) did not find her at the spot till 7:008:00 pm on the date of incident or among the crowd of persons present at the spot after the incident in question.
65. It was submitted by the ld counsel for the accused with respect to the weapon of offence viz the hammer that this hammer was not produced before the doctor who conducted the post mortem (PW19). The counsel was of the assertion that the hammer could therefore not be treated as the actual weapon wielded by any assailant for murdering the victim.
66. The forensic evidence in the form of the findings in the DNA report were sought to be faulted on the submission from the counsel for the accused that such evidence was only advisory in nature and not binding upon the court.
67. The counsel for the accused also raised questions on the nature of injury to the ears of the victim by citing the death report (Ex. PW16/9) which recorded no injury on the ears of the victim.
68. It was the further assertion on behalf of the accused that the recoveries of the motorcycle in question and the FIR No.679/2014 State Vs. Haider Ali Page No. of 19 /46 purported ear rings of the deceased were manipulated circumstances which could not by themselves constitute proof of commission of the offences in question by the accused.
Analysis and findings
69. The exercise in determining the guilt or otherwise of the accused under the charge of committing murder as well as causing hurt in the course of robbery, besides house tress pass in order to commit an offence punishable with death (sections 302, 394 and 449 respectively), hinges on circumstantial evidence. Undoubtedly, such attendant evidence of the commission of a crime requires exacting standards of proof and for every link in the chain of circumstances to be cogently proved. While the ld prosecutor was of the assertion that the evidence was much more than circumstantial albeit not direct, the defence counsel maintained that alternate interpretations and possibilities could account for the murder of the victim and that such alternate possibilities were non commensurate with the guilt of the accused.
70. The court has identified four key elements of evidence which need to come together as complementary and convincing components for a finding of guilt to be rendered on the standard of proof beyond reasonable doubt. These elements are enumerated below:
(i) Time of death of the victim.
(ii) Presence of the accused at the time and place of incident.
FIR No.679/2014 State Vs. Haider Ali Page No. of 20 /46
(iii) Motive and previous context for the commission of
the offences in question by the accused.
(iv) Link between the accused and the manner of commission
of the offences.
71. Each of these components are next proposed to be dilated upon.
Time of death of the victim
72. This aspect is critical to maintain the charge against the accused. It is only if the accused can be proved to have been lastly seen with the deceased within the general range of the time of death that guilt can be fastened upon him.
73. The court finds two key facets of evidence to have emerge regarding the time of incident or time of death. The first element was the finding by the doctor (PW19) who conducted the post mortem of the deceased while the second element relates to the deposition of the sole witness in the nature of an eye witness (PW2) regarding the presence of the accused within the time period when the deceased is suspected to have been murdered.
74. The deposition of PW19 (Dr. Akash Jhanjee) may first be taken up.
75. The witness, after describing the multiple blunt force injuries upon the face and head of the victim, recorded the time of death to be around 3648 hours prior to the post mortem being conducted.
76. The post mortem report Ex. PW19/A records the time of the post mortem to be 12:30 pm on 20.10.2014. This time FIR No.679/2014 State Vs. Haider Ali Page No. of 21 /46 was also recorded in the deposition of PW19. If the said range of 3648 hours is considered from the time of the post mortem i.e. 12:30 pm, the general range of time within which the victim died would lie between 12:30 pm to 12:30 am on 18.10.2014. However, this range is capable of further constriction from the account given by PW2.
77. PW2 (Anjali) who was residing as a tenant of the deceased in house no. 135, Chitra Vihar, Delhi deposed further during cross examination that she had lastly seen victim Suman Bala Bhatnagar between 2:00 pm to 3:00 pm when she had spoken through the shaft in the building. She also stated that prior thereto, she had also talked to the victim in the morning on the same day. Thus the victim was evidently seen alive even at 3:00 pm.
78. More pertinently, PW2 stated that at about 5:00 pm, she had seen the accused entering the house of the victim and that he left at around 6:00 pm on a red and black colour motorcycle. He was also seen to be carrying a small bag on his front handle. PW2 came inside her house at about 7:30 pm.
79. It is to be reasonably concluded that the victim died somewhere after 3:00 pm on 18.10.2014 due to the injuries caused upon her by blunt force and no later than 12:00 pm on the same day.
80. Here, the court would observe that the nature of medical opinion regarding the time of death is such that it is not possible to pinpoint the exact time of death or even a very narrow range. Such range is generally provided in hours. FIR No.679/2014 State Vs. Haider Ali Page No. of 22 /46 Applying ordinary and reasonable standards of assessment, it can be prudently concluded that the victim was murdered within a proximate time from 3:00 pm when PW2 last spoke with the deceased, The time of death can be safely assumed to lie in the median zone between 3:00 pm and 12:00 pm and thereafter emerges as around 6:00 pm to 7:00 pm. Presence of the accused at the time and place of incident
81. In the discussion above, the court has identified the general time zone when the victim was murdered to be the evening of 18.10.2014. Since the prosecution has sought to implicate the accused as the murderer by relying on his presence in the house of the victim in the evening hours, specifically between 5:00 pm and 6:00 pm, as one of the components of evidence against him, the deposition of PW2 is material in this exercise.
82. The relevant portion from the examination in chief of PW2 is reproduced below:
On 18.10.2014, at about 5:00 pm, I was sitting in the park located just in front of my house. I noticed that one person had entered in the house of my landlady and he came out of the house at around 6pm. He boarded his red and black colour motorcycle. He was carrying a small bag on his front side handle. I came inside my house at around 7pm or 7.30pm. The door of the house of my landlady was close. I straightaway went upstairs to my house.
83. PW2 further stated in her examination in chief that :
I identify accused present in the Court, who had come on 18.10.2014 on a red colour motorcycle and had left the room of landlady at around 6pm.
FIR No.679/2014 State Vs. Haider Ali Page No. of 23 /46
84. The above extracts from the statement of PW2 represent a definitive account, both regarding the time when the accused entered and left the residence of the victim as well as his identification by PW2. Now, PW2 was a tenant of the victim and was reasonably expected to be aware and even alert towards persons going inside the premises where she was a tenant. There was no discernible reason for the witness to either render testimony only to implicate the accused or to favour the police version. PW2, in specifying that she was sitting in the park and noticed the accused entering and leaving the house of the deceased, was only being a forthright and spontaneous witness.
85. Infact, the cross examination of PW2 revealed her previous familiarity with the accused which removes any possibility of false identification only at the prodding of the police. During cross examination, PW2 stated that in the year October 2014, some work relating to carpentry was going on at the house of the deceased and that she had personally spoken to accused Haider when the deceased had gone to Chennai a month prior to the date of incident.
86. This familiarity with the accused denied any possibility of false identification. Again, there is no evidence on record to suggest that PW2 had any motive to falsely ascribe the presence of the accused at the place of occurrence.
87. An allied deposition revealing why the accused could have been visiting the house of the deceased emerged from the statement of PW4 (Yogita) who was the daughter of the victim. PW4 corroborated PW2 by stating that the accused FIR No.679/2014 State Vs. Haider Ali Page No. of 24 /46 was a carpenter and used to visit the area of Chitra Vihar for such work.
88. The court finds it to be a circumstance proved beyond any doubt that the accused visited the house of the victim in the evening of 18.10.2014 and in the general time frame of 5:00 pm to 6:00 pm.
89. The court may also record that the time of visit of the accused and indeed the time of death are not required to be proved with such precision as to produce abnormal outcomes. What is required to be determined is whether the deceased was killed in the evening of 18.10.2014 and whether the accused visited her house in the evening of the same day.
90. The prosecution has succeeded in establishing that the accused was present in the house of the victim proximate to the time when she was murdered.
91. During the course of final arguments, the Ld. Counsel for the accused had laid great emphasis on the CCTV footage relating to the time of incident as captured through a camera facing the room outside the residence of the deceased. It had been submitted that this footage was not indicative of the presence of the accused and that the person reflected in the same was not the present accused. The ld prosecutor had rather maintained that the footage clearly depicted a person with features akin to the present accused.
92. The court would record that the CCTV footage is being addressed in the judgment after the court has already reached a finding regarding the visit of the accused to the residence of FIR No.679/2014 State Vs. Haider Ali Page No. of 25 /46 the deceased. The preceding portion of the judgment has believed the testimony of PW2 and found it adequate to reach the conclusion that the accused did indeed visit the deceased in the evening of the date of incident. Yet, a discussion is necessitated on the aspect of the CCTV footage as it has found mention in the deposition of PW2.
93. The video footage relates to the time span from 04:12:58 pm onwards on 18.10.2014 and depicts the movement on the road outside the residence of the deceased in the time frame when she was murdered.
94. The CCTV footage purporting to show a person driving and parking a motorcycle near a park was contained in two video files bearing No.CH0320141018161253 (VLC Media File.avi) and CH0320141018175219 (VLC Media File.avi) which were saved in a CD. This CD was infact not presented in evidence by the prosecution though it was a part of the chargesheet. It, however, came to be the subject of identification during the course of evidence only because it was confronted to PW2 during cross examination by the ld counsel for the accused and thus came to be exhibited as Ex. D1. Notwithstanding any infirmities in the certificate under section 65B Indian Evidence Act (on account of it being issued and proved by the Investigating Officer - PW24 rather than the owner of house No.113, Chitra Vihar), the authenticity of the footage in the form of the two video files was not disputed by the prosecution or the accused. As noted above, the footage was rather brought forth in evidence by the counsel for the accused himself during the cross examination of PW2 (Anjali Mishra) who FIR No.679/2014 State Vs. Haider Ali Page No. of 26 /46 was the tenant of the deceased and had also claimed to be familiar with accused Haider. The court is thus noticing the contents of the footage.
95. The first video file for the duration 4:16:46 pm onwards reflects a person in a white shirt and dark colour trousers, wearing a helmet, driving a motorcycle (which is red and black in colour) at the T point and who parks the motorcycle between two cars outside the wall of a park. The said person then leaves the motorcycle. This video file in CD Ex. D1 bears the number CH0320141018161253 (VLC Media File.avi).
96. The second video file in the CD Ex. D1 bears the number CH0320141018175219 (VLC Media File.avi) and reflects the same person approaching the motorcycle with a helmet at 5:58 pm. The person appears to be carrying a bag in his hand and leaves on the motorcycle with the bag hanging on the left handle of the motorcycle. This second video file is recorded in black and white. Hence, the colour of the clothes of the said person is not visible. However, on general observation, the appearance and built of this person leaves no doubt that he was the same person who parked the motorcycle at the same spot around 4:16 :58 pm. It is noted that the visor of the helmet is in open position when the motorcyclist leaves the spot.
97. Apparently, the footage does not conclusively reveal the features of the person riding the motorcycle. Yet, the outcome of the trial is not contingent on the said footage. Infact, the court has trusted the account given by PW2 who FIR No.679/2014 State Vs. Haider Ali Page No. of 27 /46 deposed that she had seen the accused entering the house of her landlady. Moreover, the prosecution has not assertively relied upon this footage either. The eye witness account of the person (PW2) who is familiar with the accused and who states before the court that it was indeed the accused who she saw entering the house must be believed as she was at close quarters to identify the person she saw. The court finds the attempt of the accused to rely on the footage in order to sow doubts in the presence of the accused at the scene of crime to be a diversionary tactic which fails in the face of the eye witness account.
Motive and previous context for the commission of the offences in question by the accused.
98. The next aspect relates to motive or any previous context which could explain the existence of motive in the accused to murder the victim.
99. PW2 and PW4 are again material to this exercise.
100. PW4 deposed that she was in regular telephonic contact with her mother and that on 25.09.2014, her mother had telephonically informed her that the accused had visited her house in drunk condition and demanded money. Further, that her mother had declined to pay any money to the accused but had rather offered tea to him. This version found general corroboration from PW2 who deposed that about two or three months prior to the incident, the victim had gone to Chennai and before doing so, she had asked PW2 to not disclose to Haider that she was not at home if he were to come to enquire about her. PW2 then stated that after about FIR No.679/2014 State Vs. Haider Ali Page No. of 28 /46 one week of the departure of the victim to Chennai, the accused had infact come to her house, rang the bell and even spoken to PW2. PW2 simply told him that the landlady was not at home. The accused then left.
101. The picture which emerges is that accused Haider was familiar with the victim on account of having performed the work as a carpenter at her house and was in the habit of repeatedly visit her. It is significant that he used to demand money from her and had even visited her in an inebriated condition.
102. The victim was also apparently wary of the accused as she did not want her travel plans (to Chennai) to be known to the accused). She also took care to inform her daughter (PW
4) about the unpleasant incident dated 25.09.2014 when the accused had visited her in a drunk condition and demanded money.
103. These circumstances certainly reflect an aggravated level of entry or intrusion by the accused into the house of the victim even prior to the incident.
104. The court is thus unable to agree with the ld defence counsel who contended that a small level of familiarity between the accused and the deceased could not serve as a basis for fastening the blame for murder upon the accused.
105. The court finds that the accused was rather using this familiarity to repeatedly gain access to the house of the victim and demand money. Notably, the victim was an old lady staying alone in her house. This circumstance seems to have generated motive in the accused to commit robbery and FIR No.679/2014 State Vs. Haider Ali Page No. of 29 /46 murder if the victim resisted. The evidence justifies the existence of motive with the accused.
106. The court would also notice that the investigating officer took pains to record statements from other acquaintances of the accused from whom too he had borrowed money. These acquaintances were Kamal Bhatt and Rishi Pal who deposed in court as PW11 and PW12 respectively.
107. PW11 deposed that accused Haider had taken a sum of Rs. 25,000/ in two instances (Rs. 10,000/ and Rs. 15,000/ from him) and even deposited his motorcycle with PW11 as a sort of security. Further, while PW11 returned the motorcycle to the family members of the accused, the accused had not returned the loan amount. Similarly PW12 testified that the accused, who had been taking ration from his shop for himself and other labourers was liable to pay Rs. 1,40,000/ to him up to the year 2014 but did not pay the sum despite repeated assurances.
108. The statements of PW11 and PW12 served as context to the motive identified by the court. The accused was apparently a person under some measure of debt. Since he was engaged in a modest profession, a debt of Rs. 1,40,000/ and Rs. 25,000/ in the year 2014 was a significant burden upon him. This would explain his aggressive demand for money from victim Suman Bala Bhatnagar.
109. The court is of the firm conclusion that the accused possessed motive, borne out of debt and opportunism in targeting an old lady staying alone, to commit robbery and FIR No.679/2014 State Vs. Haider Ali Page No. of 30 /46 murder.
Link between the accused and the manner of commission of the offences.
110. The next exercise and which is crucial to the charge against the accused relates to a link between the manner of commission of the offence and the accused. In other words, the court must glean from the deposition of witnesses whether the death of the victim by multiple blunt force injuries upon the face and head can be proved to have been committed by the accused.
111. This appraisal is a four fold exercise. The court must delve into:
(a) Whether the weapon of offence has been identified and whether the accused could be proved to have wielded the same to kill the victim.
(b) The forensic reports regarding blood being found on the weapon of offence and at the place of occurrence.
(c) The post mortem report. (d) Recovery of the robbed articles from the accused.
112. The victim apparently suffered a brutal attack and can be imagined to have died of very painful wounds as evident from the post mortem report (Ex. PW19/A). This report, apart from detailing as many as 23 injuries, concluded that the cause of death in the instant case was found to be the combined effect of cranio cerebral damage and hemorrhagic shock, both of which were sufficient to cause death in ordinary course of nature individually as well as collectively.
FIR No.679/2014 State Vs. Haider Ali Page No. of 31 /46 All the injuries were antemortem, fresh in nature and caused by blunt force impact.
113. It is evident that the doctor concluded the weapon responsible for these injuries to be a blunt weapon.
114. This finding is, in an introductory manner, commensurate with the general allegation that the victim was killed by use of a hammer by the accused who was admittedly a carpenter and therefore in natural possession of such a tool.
115. Now, the objective of the prosecution was to prove that the hammer had indeed been used by the accused. There were two complementary links in evidence advanced by the prosecution in this quest. The first relates to evidence regarding recovery of a hammer at the instance of the accused while the second is the forensic evidence connecting the hammer to the injuries upon the face and skull of the victim.
116. Three police witnesses viz PW14, PW15 and PW16, who were cited upon the recovery memo of the hammer (Ex. PW14/G), deposed in unison that upon receiving information in the intervening night of 19/20.10.2014 regarding the accused having gone to the house of his sister at B51, Kanchan Kunj Khadar, they had headed towards the location. The accused, who answered the phone call of the IO, purportedly gave a wrong location but the police team were able to trace him in the area of Madanpur Khadar upon verifying his location. The accused was apprehended as he was moving towards house No. B51. He was identified, FIR No.679/2014 State Vs. Haider Ali Page No. of 32 /46 upon his disclosure, as Haider and arrested through arrest memo Ex. PW14/A. The three witnesses similarly stated that a search of the accused revealed currency notes amounting to Rs. 1100/ from the right side pocket of his trousers comprising two currency notes of Rs. 500/, one currency note of Rs. 20/ and 8 currency notes of Rs. 10/. One of the currency notes of Rs. 500/ was seen to be bearing blood. The currency was seized through memo Ex. PW14/D and the currency notes were identified as Ex. PW14/P1. The mobile phone was also seized from him through memo Ex. PW14/E and identified as Ex. PW14/P5. The accused also handed over a white colour shirt having blood stains and trousers similarly containing blood stains. These were seized through memo Ex. PW14/F. These police witnesses identified the shirt as Ex. PW14/P2 and the trousers as Ex. PW14/P3. The accused then led the police team to the house of Ashok Kumar (PW7) and got recovered the motorcycle bearing No. DL 5SAJ 6056 which he had purportedly used for travelling to the house of the victim. The motorcycle was identified as Ex.P1 alongwith a helmet Ex. PW14/P7, seized through memo Ex. PW7/A.
117. The court shall discuss the evidentiary value of the recovery of the currency notes, blood stained shirt and trousers as well as motorcycle in the later part of the judgment since these are subsidiary to the proof of the principal component of the crime viz the alleged infliction of fatal injuries upon the victim by use of a hammer by the accused.
118. Similarly, the accused got recovered two gold earrings, FIR No.679/2014 State Vs. Haider Ali Page No. of 33 /46 having some hair, from his room at house No. 227 near Bada Chowk, Mandawali, Fazalpur which was seized through memo Ex. PW14/J. The court shall similarly dwell on this seizure in the later part of this judgment.
119. Reverting now to the principal recovery viz the hammer, PW14, PW15 and PW16 deposed that the accused had taken them to a park at C Block, Preet Vihar and got recovered one bag containing tools from the roof of a room inside the park.
120. He had then taken out a hammer having blood stains from the bag and handed over the same to the IO. The accused purportedly admitted that this was the weapon of offence.
121. During the course of perusal of the evidence, the court had found it necessary to examine the previously exhibited case property viz Ex. PW14/P6. The MHCM produced a sealed pullanda which upon being opened was found to contain a fibrous bag (with loop handles, with one handle being torn) bearing the label Jain Saree & Readymade Garments. The bag was of the dimension about 1 ½ feet x 1 foot and contained a white plastic packet bearing various tools like screw driver (pechkas)(पपेचकस), spanner, screws and jamur (जमकर) (apart from a steel measuring tape).
122. The ld counsel for the accused had contended that the recovery of the hammer at the instance of the accused could not be trusted as it was made from a public place viz a park and that no public witnesses were joined to the said recovery.
123. The court does not find merit in this submission. FIR No.679/2014 State Vs. Haider Ali Page No. of 34 /46 Unlike classic recoveries made from a public place where no special knowledge of the hiding place of a weapon of offence can be ascribed to the accused, the present recovery of a hammer was from a peculiar location. The hammer was found inside a cloth bag from the roof of a room in the park. Such a place of recovery qualifies as a peculiar hiding place which would not ordinarily be within the know of public persons at large or be ordinarily accessible to anyone. While a park may by itself be a place with a great foot fall, the roof of a room in a park is not exactly a place within the sight or reach of anyone except the person intending to hide an article on such a roof.
124. The absence of public witnesses was understandable as the time of the said recovery was stated, by the police witnesses, to be early morning. At such early hours, public persons may not have been readily available to join the search of a roof in a public park. Besides, the court has determined that the actual place of recovery viz the roof of the room was a peculiar place of hiding the weapon and justifiably within the exclusive knowledge of the accused.
125. In sum, the court believes the account of the police officials who made the recovery of the hammer at the instance of the accused a little over a day after the incident which occurred on 18.10.2014.
126. Any lingering doubts over the fidelity of the recovery of the hammer were dissipated when the forensic report viz the DNA analysis of the various blood samples was made.
127. The report Ex. PW25/A from the FSL found blood to FIR No.679/2014 State Vs. Haider Ali Page No. of 35 /46 be present on the hammer. More pertinently, the blood on the hammer was found to be matching, in its DNA content, with the DNA collected from the blood stained cloth samples of the deceased. In other words, the blood of the victim was decisively found on the hammer. It was thus purely speculative for the Ld counsel to have contended that the hammer could have been planted upon the accused. The forensic evidence corroborates the recovery from the accused and the hammer emerges as the weapon of offence which is proved to have been recovered at the instance of the accused. This finding constitutes near conclusive proof in its own right of the commission of the murder of Suman Bala Bhatnagar by accused Haider.
128. Again, evidence is studied in the conjunction of various components inter alia oral accounts and forensic proof. In the present trial, the proof of the presence of the accused at the house of the victim in the time frame of her murder merges with the proof of recovery of the very weapon at the instance of the accused which bears the blood of the victim. The conclusion is definitive. The accused indeed inflicted multiple injuries on the victim with the hammer in question.
129. The evidentiary value of forensic evidence comes to the fore in even greater strength when it is seen that the blood stained shirt of the accused, which was deposed by PW14, PW15 and PW16 to have been seized through memo Ex. PW14/F was also found to be bearing the blood of the victim. The DNA report (Ex. PW25/A) again concluded that the DNA found on the blood bearing cloth piece of the deceased FIR No.679/2014 State Vs. Haider Ali Page No. of 36 /46 matched with the DNA found on the shirt of the accused. The evidence now assumes overwhelming proportions. Not only was the blood of the victim found on the hammer which was recovered at the instance of the accused, even his shirt, recovery barely a day after the date of incident, reflected the blood of the victim. These circumstances are incapable of any construction other than the accused having inflicted frenzied blows upon the victim. As the accused continued to assault the victim in the course of the robbery, her blood apparently splattered on his shirt. The blood of the victim was also visible on the wall behind the bed (evident in photographs Ex.PW6/A1 & Ex.PW6/A3) and was also found, in the DNA report, upon the cemented material collected from the spot, her dupatta (दकपट्टट), pillow and bed sheet.
130. The scene and manner of the offence does now assume a vivid picture before the court. The accused undoubtedly inflicted multiple blows on the hapless old lady who could not sustain the multiple blows over her eyes and skull. The injuries included contusions, fractures to the skull and lacerated wounds. Since lacerated wounds are considered commensurate with blunt force impact, the non production of the hammer before the doctor (PW19) who conducted the post mortem does not derail the status of the hammer as the weapon of offence.
131. Even the currency notes recovered from the accused reflected blood. Though the DNA report could not detect the blood of the victim on this currency notes, the same could have been due to the poor sample quality.
FIR No.679/2014 State Vs. Haider Ali Page No. of 37 /46
132. The finding regarding the blood of the victim on the hammer and the shirt of the accused are overwhelming forensic proof of commission of murder by him.
133. The court would next consider the multiple recoveries made from the accused. The most pertinent recovery, tying him to the incident in question, was of the gold rings of the victim. Both PW2 (the tenant) and PW4 (the daughter) stated that the victim used to wear gold earrings. These earrings were recovered from the accused, as apparent from the deposition of PW14, PW15 and PW16 when they identified the seizure memo Ex. PW14/J. The earrings were identified by PW4 (the daughter of the deceased) as Ex.PW4/P1. PW4 further deposed that when she had reached the place of occurrence, she found the ear lobes of her mother to be having cut marks with her tops found missing. Indeed, the photographs of the deceased (Ex. PW6/A1, PW6/A3, PW6/A4, PW6/A6, PW6/A7, PW6/A8, PW6/A9 and PW6/A11) and the post mortem report (Ex.PW19/A) revealed such injuries. It is not difficult to deduce that in his single minded desire to enrich himself from the person of the victim, the accused violently pulled the ear rings of the victim causing her ears to tear. The recovery of the gold ear rings from the accused is as much evidence of murder as it is indication of the violent nature of trauma inflicted upon the victim.
134. As to the recovery of the currency notes, while the ownership of the deceased over the seized currency amounting to Rs. 1100/ was not established, the blood stained currency notes of Rs. 500/ recovered from the FIR No.679/2014 State Vs. Haider Ali Page No. of 38 /46 accused do act as further corroboration of his complicity.
135. The last two components of the recoveries at the behest of the accused were the motorcycle and Nokia phone.
136. As to the motorcycle bearing No. DL 5SAJ 6056, this aspect of the evidence can be subdivided into the deposition of the owner of the motorcycle (PW7), the CCTV footage (Ex. D1) and recovery of the motorcycle at the instance of the accused through recovery memo Ex. PW7/A.
137. To explain, PW7 namely Ashok Kumar, who was the owner of the motorcycle purportedly used by the accused, deposed regarding the circumstances in which he parked the motorcycle at the house of Rizwan (brother of the accused) on 18.10.2014 and then took it back on 19.10.2014. The court finds it necessary to reproduce the examination in chief of PW7 in entirety to elicit the utility of the same in deciding whether the motorcycle could have been used by the accused in travelling to the residence of the victim. The examination in chief of PW7 is noted below:
I am working as Supervisor in DLF Factory, Jhandewalan. Rizwan resident of Baba Chowk, Mandawali is known to me. Motorcycle no.DL5SAJ 6056 FZS Yamaha is owned by me in 2013. The same was gifted to me by my inlaws in my marriage.
On 18.10.14, I had to go a marriage party at Dasna. Three other persons were also with me. They were having their own motorcycles. Consequently, I parked my motorcycle at the house of Rizwan alonwith key and helmets.
On 19.10.2014, I had taken my motorcycle alongwith helmet back from the house of Rizwan.
On 20.10.14, police contacted me at Jhandewalan DLF office and seized my motorcycle. They had questioned me about my motorcycle. I had informed the above said fact to the police. Accused Haider Ali is the brother of FIR No.679/2014 State Vs. Haider Ali Page No. of 39 /46 Rizwan. The motorcycle was seized by the police vide memo Ex.PW7/A. I identify my signatures at point A. On that day, accused Haider met me in Police Station. I had taken the motorcycle on superdari. I have brought the same today. The superdarinama furnished by me on the record and the same is Ex. PW7/B. I identify my signatures at point A & B. Photographs of the motorcycle were taken when it was released to me. I identify the photographs of my motorcycle Ex. PW7/1 to 4. The backside of these photographs bears my signatures at point A.
138. The above deposition of PW7 is more trustworthy than the account of the brother of the accused (DW1) who could reasonably be presumed to be interested in a favourable outcome for the accused. PW7 clearly stated that the motorcycle had been parked by him at the house of Rizwan (DW1) on 18.10.2014 and taken back on 19.10.2014. During cross examination, PW7 further clarified that he had left for the marriage at about 11:00 am on 18.10.2014 and the motorcycle itself had been brought back to his house at about 10:00 am on 19.10.2014. Thus, upon the own account of the owner of a motorcycle, the said motorcycle remained available at the residence of DW1 while PW7 and DW1 went for a marriage function on 18.10.2014 and was not returned to the possession of PW7 until the morning of 19.10.2014. This account completely falsifies the statement of DW1 who had rather asserted that the motorcycle of PW7 was parked at his residence at about 18.10.2014 but taken back by PW7 before 5:00 pm on 18.10.2014 itself after they had returned from the marriage function. The court would observe that DW1 evidently delivered a contrived testimony in order to shield his brother as the alleged driver of the motorcycle of PW7 which was FIR No.679/2014 State Vs. Haider Ali Page No. of 40 /46 seen near the residence of the accused around the time of incident on 18.10.2014.
139. The court has observed in the preceding part of this judgment that the CCTV footage was not conclusive regarding the identity of the accused. The deposition of PW 7 may be seen in similar vein inter alia him raising the possibility of the accused having had the opportunity to use the motorcycle but the actual use remaining incapable of proof by PW7. Yet, the recovery of the motorcycle at the instance of the accused, as reflected through seizure memo Ex. PW7/A, does serve as an ancilliary evidence lending support to the account of PW2, who has been believed by the court to have rendered a truthful deposition regarding having seen accused Haider at the residence of the victim.
140. The last aspect relates to the recovery of the Nokia phone from the possession of the accused and which was seized through memo Ex. PW14/E. Culpability under the various articles of charge
141. The findings are required to be rendered by the court on the following articles of charge:
(i) Section 449 IPC (ii) 302 IPC (iii) 394 IPC Section 449 IPC
142. The evidence on record has proved beyond any doubt FIR No.679/2014 State Vs. Haider Ali Page No. of 41 /46 that the accused was found in possession of the gold rings of the victim. It thus stands established that the accused removed these articles from the residence of the victim during the course of committing her murder.
143. Section 449 IPC is reproduced below:
449. Housetresspass in order to commit offence punishable with death. Whoever commits house tressspass in order to the committing of any offence punishable with death, shall be punished with [imprisonment for life], or with rigorous imprisonment for a term not exceeding ten years, and shall also be liable to fine.
144. The above penal provision contemplates house tress pass in order to the committing of any offence punishable with death. It is apparent that the offence has two ingredients. While house tress pass is one of the components, the other component is that such house tress pass should be in order to the committing of an offence punishable with death. The expression 'in order to' must be given its apparent construction to mean 'for purpose of'. In the present allegations, the consequent offence which got committed by the accused was 'Murder' which is punishable under section 302 IPC, with death as one of the punishments. Yet, the evidence, while conclusively proving both robbery and by implication house tress pass as well as murder, did not point to premeditation towards the commission of murder. It can equally be contemplated that the house tress pass by the accused was 'in order' to the commission of robbery. Robbery per se is not punishable with death. Hence, the house tress pass of the accused into the residence of the victim does not satisfy the very specific ingredients of FIR No.679/2014 State Vs. Haider Ali Page No. of 42 /46 section 449 IPC though he would be liable for murder (punishable under section 302 IPC) as detailed in the succeeding discussion on culpability under section 302 IPC.
145. However, the ingredients of section 442 IPC, which defines house tress pass, are satisfied as the offence was committed in a human dwelling. The accused is therefore liable for conviction for the offence of house tress pass under section 448 IPC as he evidently entered into the house of the victim with an intent to commit an offence viz robbery.
302 IPC
146. The court has concluded in its discussion on the manner of commission of the offence by the accused that he inflicted hammer blows on the face and head of the victim. The injuries upon the victim included contusions over both eyes and the left forehead region extending till the left cheek of the victim. There also existed lacerated wounds on the left side forehead and frontal region of the head apart from contusions and laceration on the right side of the forehead. The post mortem report noted further injuries of similar character on the right cheek and the center of the forehead. Contusions were also found over the left side upper lip and chin region below the lower lip of the victim. More contusions were found on the left side face and right side temper region above the right ear. The post mortem report further noted contusion on the back surface of the left hand apart from a lacerated wound on the left parietal region and under lying bone fracture.
147. The court may further notice that the skull of the FIR No.679/2014 State Vs. Haider Ali Page No. of 43 /46 victim showed a depressed signature fracture measuring 5.6 cm x 4 cm on the right parieto temporal bone of the skull and also a fissured fracture line over the left site parietal and left temporal bones. There were numerous haemorrhages in the cerebral hemispheres. Finally, the skull base showed fracture both sides anterior and middle cranial fossae. The defenceless victim evidently suffered fractures to her head as she was ruthlessly beaten with an iron hammer.
148. These injuries depicted countless blows from a blunt weapon which kept smashing into the head, eyes, face and chin of the victim who also apparently suffered a blow to her left hand as she presumably admitted to defend herself. Such injuries are reflective of a determined and continuous attack on the most vulnerable region of the body viz the head. The culpable homicide committed by the accused qualifies as being intentional in nature thereby finding culpability under the first clause of section 300 IPC inter alia culpable homicide being murder if the act by which the death is caused is done with the intention of causing death.
149. The court would additionally notice that even the chest sternum of the victim was found fractured and the 9 th rib on the right side was also fractured. Moreover, all ribs on the left side were fractured at the costrochondral junction. When seen that the body was found lying backwards on a single bed with legs hanging towards the floor, as apparent from the photographs of the victim (Ex.PW6/A4, EX.PW6/A7, Ex.PW6/A9 and Ex PW6/A11), it is not difficult to imagine that great force was applied to the rib cage of the victim. Since the injuries were on the head and there was blood on FIR No.679/2014 State Vs. Haider Ali Page No. of 44 /46 the wall behind, even the exact manner of the attack unravels like a picture before the court. It is most probable that the accused sat on the chest of the victim and fractured most of her ribs while he continued to smash her head with a hammer. Such violence qualifies as intentional causing of death. The accused is liable for conviction under section 302 IPC in terms of clause firstly of section 300 IPC.
150. The opinion from the doctor regarding the injuries also concluded as under:
Cause of death is combined effect of the cranio cerebral damage and haemorrhagic shock, both of which are sufficient to cause death in ordinary course of nature, individually as well as collectively.
151. This opinion lies within the specific ingredients of clause thirdly of section 300 IPC. As the injuries upon the victim were intentionally caused to the head and such injuries were sufficient in the ordinary course of nature to cause death, the offence committed by the accused is additionally within the ambit of clause Thirdly of section 300 IPC which defines culpable homicide to be murder if the act 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. For this reason too, the accused is liable to be convicted under section 302 IPC.
Section 394 IPC
152. This provision reads as under:
394. Voluntarily causing hurt in committing robbery.If any person, in committing or in FIR No.679/2014 State Vs. Haider Ali Page No. of 45 /46 attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
153. Much like section 449 IPC, section 394 IPC also has specific ingredients which include the causing of hurt in the commission or attempt to commit robbery. This section does not contemplate causing death during robbery and is defined to address offences where physical harm of a degree lesser than death is caused. Section 394 IPC would be invoked only if the victim survives. The statute consciously excluded death as an outcome requiring punishment under section 394 IPC and the court cannot read such an outcome into the provision. It is also noted that while dacoity with murder is contemplated as a separate offence inter alia 396 IPC, robbery with murder is not a defined offence. Section 394 IPC evidently contemplates cases related only to causing of hurt in the course of a robbery.
154. The article of charge under section 394 IPC remains not proved.
ORDER
155. Accused Haider Ali is convicted under sections 302 and 448 IPC. The accused is acquitted under section 394 IPC.
156. File be consigned to Record Room.
Dictated and announced in open Court (VISHAL GOGNE) on 31st October, 2023 ASJ02/KKD/East/Delhi FIR No.679/2014 State Vs. Haider Ali Page No. of 46 /46