Delhi District Court
State vs . Patit Sarkar on 16 July, 2015
IN THE COURT OF SHRI RAJ KUMAR TRIPATHI
ADDL. SESSIONS JUDGE02 : SOUTH EAST
SAKET COURT : NEW DELHI
IN RE: ID No. 02406R0072492014
SC No. 16/14
FIR No. 914/13
State vs. Patit Sarkar
PS: Govindpuri
State Vs. Patit Sarkar
S/o Shri Ramesh Sarkar
R/o Vill. Agardweep, Railway
Station Plate Bazar,
P. S. Kotwa, Distt. Vardhman,
West Bengal.
__________________________________________________________
Date of Institution : 07.04.2014
Date of arguments : 06.07.2015
Date of judgment : 16.07.2015
JUDGMENT
As per case of prosecution, on 03.08.2013 at about 4.25 am in the morning, Ct. Yogender from Safdarjung Hospital informed through telephone to Duty Officer police station Govindpuri, Delhi that one Mamita wife of Patit aged about 19 years resident of RZ251/13, TKD Extension was brought in unconscious condition by her husband SC No. 16/14 State Vs. Patit Sarkar 1 of 18 who got her admitted in Safdarjung Hospital vide MLC No. 153546/13. The said lady was declared dead. The information was recorded by Duty Officer vide DD No. 100B dated 03.08.2013 Ex.PW12/F at police station Govindpuri, Delhi.
2. Allegation against accused is that on 02.08.2013, during the night at about 11.3011.45 pm at Second Floor, H. No. RZ251/19, Tugalkabad Extension, accused Patit Sarkar strangulated his wife Mamita and caused her death and thereby, he committed an offence punishable under section 302 of The Indian Penal Code (in short "IPC").
3. On 12.12.2013, PW12 SI Desh Raj collected postmortem report from hospital. On 13.12.2013, he made endorsement Ex.PW12/E on DD No. 100B Ex.PW12/F and on the basis of same, PW6 HC Banwari Lal recorded FIR no. 914/13 police station Govindpuri which is Ex.PW6/A.
4. Matter was investigated as per law. Accused was found involved in the commission of offence in the case and therefore, he was charge sheeted to face trial.
5. Accused was supplied copy of charge sheet along with complete set of documents and thus learned MM made compliance of section 207 of The Code of Criminal Procedure, 1973 (in short "Cr.P.C.").
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6. As the offence under section 302 IPC is exclusively triable by Court of Sessions, therefore, the case was committed to the Sessions Court for trial in accordance with law.
7. After hearing submissions of both the parties, sufficient prima facie material was found to frame charge against accused for commission of offence punishable under section 302 IPC. Therefore, charge for the said offence was framed against accused to which he pleaded not guilty and claimed trial.
8. In order to prove its case, prosecution has examined as many as twenty witnesses in all, who are as under :
9. PW1 Suraj is the witness in whose house accused was residing as a tenant at the time of alleged incident. He deposed that on the date of incident, he was watching TV in his house and at about 10.00 pm, her mother, who was at the counter of the shop outside his room, called him and asked to check the upper floor of the house saying that she had heard some thud. According to PW1 Suraj, he went upstairs and found accused present there having his wife on his legs / lap and his wife was senseless. He deposed that accused took his wife to hospital and after about half an hour, he came to know that wife of accused had died.
10. PW2 Mrs. Nilima Mistri, a resident of Kolkatta, is the mother of deceased. She deposed that on 02.08.2013, accused called her SC No. 16/14 State Vs. Patit Sarkar 3 of 18 on phone after 11.00 pm and informed her that deceased Mamita had fallen from stairs. She deposed that after about 1520 minutes, accused again called her and informed about her death. She on arrival in Delhi, identified dead body of deceased Mamita and police recorded her statement in this regard which is Ex.PW2/A. Her statement Ex.PW2/B was recorded by police. After postmortem, the dead body of deceased was handed over to her vide receipt Ex.PW2/C.
11. PW3 Rambir Singh is the witness who assisted accused in obtaining mobile phone no. 9871454760 on the basis of his Voter I Card.
12. PW4 Dr. Mukesh Nagar proved MLC bearing No. 153546/13 of Mamita. He identified the signature of Dr. Bijay K. C. who medically examined deceased Mamita and prepared her MLC.
13. PW5 Ajeet Kumar Chaudhary is the Executive Magistrate who conducted the inquest proceedings. He recorded statement of Smt. Nilima Mistri which is Ex.PW2/D and of Meera Sarkar which is Ex.PW5/A. He filled up the form for conducting the inquest proceedings regarding the death of Smt. Mamita which is Ex.PW5/B. He applied for postmortem of the dead body of the victim. Application is Ex.PW5/C.
14. PW6 SI Sanjay Kumar, after getting the information from PW12 SI Desh Raj (IO of the case), on 03.08.2013 went to the SC No. 16/14 State Vs. Patit Sarkar 4 of 18 spot along with Ct. Amit (photographer) and Ct. Jaswant (finger print proficient). He inspected the spot and thereafter, prepared his report which is Ex.PW6/A.
15. PW HC Banwari Lal, the Duty Officer, is a formal witness of the prosecution. He registered the FIR in the case and made endorsement on the rukka sent by IO of the case.
16. PW7 Ct. Amit accompanied PW6 SI Sanjay Kumar to the place of occurrence i.e. RZ251, Gali No. 19, Tugalkabad Extension, New Delhi. He snapped photographs of the spot from different angles which are Ex.PW7/A to Ex.PW7/C respectively. He proved the negatives of the photographs which are Ex.PW7/A1 to Ex.PW7/C1.
17. PW8 Shri Rajeev Ranjan, Nodal Officer from TATA Tele Services Ltd., brought Customer Application Form Ex.PW8/A in respect of phone no. 9038705614 in the name of Amal Krishna Bishwas. He also brought the copy of Election I Card Ex.PW8/B of said customer which was filled by him for his identification.
18. PW9 Shri Vishal Gaurav, Nodal Officer from Bharti Airtel Ltd. brought Customer Application Form Ex.PW3/B in respect of phone no. 9871454760 in the name of Rambir Singh, s/o Shri Ganga Prasad, r/o F41, Gali No. 6, Ali Vihar, Badarpur, New Delhi. He also brought copy of Election I Card Ex.PW3/A of said customer which was filled by him for his identification. He proved the call details of the SC No. 16/14 State Vs. Patit Sarkar 5 of 18 aforesaid phone for the period 01.06.2013 to 03.08.2013 which his Ex.PW9/A. He proved the certificate Ex.PW9/B issued by him regarding the correctness of the call details.
19. PW10 Ct. Sumit Kumar deposed that on 28.01.2014, he took away three sealed parcels and sample seal vide RC No. 16/21/14 Ex.PW10/A from maalkhana of police station Govindpuri and deposited the same in FSL Rohini. He took receipt from the Office of FSL Rohini which is Ex.PW10/B. According to PW10 Ct. Sumit, he did not allow any tampering in the said pulandas till the same remained in his possession.
20. PW11 Dr. Shabarish Dharam Pal is the witness who conducted postmortem on the dead body of deceased Mamita. He proved his report Ex.PW11/A. As per the witness, cause of death in the case was "asphyxia as a result of ante mortem manual strangulation". PW11 Dr. Shabarish Dharam Pal found that all the injuries on the person of victim were ante mortem in nature. He opined that the injuries on the neck were sufficient to cause death of victim in the ordinary course of nature.
21. PW12 SI Desh Raj is the IO of the case, who on receipt of DD No. 100B went to Safdarjung Hospital, collected MLC of deceased Mamita. He interrogated and recorded the statement of accused which is Ex.PW12/J. He also recorded statement of one SC No. 16/14 State Vs. Patit Sarkar 6 of 18 Mahipal which is Ex.PW12/K. He gave information regarding the death of the deceased to SDM, Kalkaji. He gave an application Ex.PW12/A for conducting postmortem on the dead body of deceased. He seized the blood sample of deceased in gauze, wearing clothes of deceased and one thread given to him by doctor vide seizure memos Ex.PW12/B to Ex.PW12/D. On collection of postmortem report, he made endorsement Ex.PW12/E on DD No. 100B and got the FIR in the case registered. On 13.12.2013, PW12 SI Desh Raj along with PW14 Insp. Madan Pal Bhati went to the spot and pointed the place of occurrence to him.
22. PW13 Insp. Mahesh Kumar, on 04.01.2014 along with other police officials went to the place of incident where he took rough notes and measurement of the spot. He prepared scaled site plan Ex.PW13/A on 15.01.2014.
23. PW14 Insp. Madan Pal Bhati along with other police officials went in search of accused on 14.12.2013. Accused was found standing outside before a factory in B Block, Okhla Industrial Area and brought to police station. He interrogated accused and arrested him vide Arrest Memo Ex.PW12/G. Personal search of accused was conducted vide memo Ex.PW12/H. Disclosure statement of accused was recorded vide Ex.PW12/I. According to PW14 Insp. Madan Pal, accused led them to the spot i.e. H. No. RZ251/19, TKD. Exten., and at his instance, pointing out memo Ex.PW14/B was prepared.
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24. PW15 SI Gurjeet Singh along with PW14 Insp. Madan Pal and PW12 SI Desh Raj went to the spot. He joined the investigation along with other police officials at different stages. He signed Arrest Memo Ex.PW12/G, Personal Search Memo Ex.PW12/H, Disclosure Statement Ex.PW12/I and Pointing Out Memo Ex.PW12/B.
25. PW16 SI Satish Kumar is the IO of the case, who collected the call details of accused Patit Sarkar. He filed application Ex.PW16/A with the service provider and collected the call details of Abhijeet. On completion of investigation, PW16 prepared the charge sheet and submitted in the court.
26. PW17 SI Raj Kiran is the IO of the case, who recorded statement of witnesses namely Abhijeet and Amal Krishan Biswas. He also collected FSL result Ex.PW17/A and Ex.PW17/B and thereafter, filed supplementary chargesheet in the case.
27. PW18 Dr. Sarabjeet Singh is an expert witness, who examined the sealed parcels marked to him for examination and thereafter, he gave detailed reports which are Ex.PW17/A and Ex.PW17/B respectively.
28. PW19 Amal Krishna Biswas is the person who had got issued mobile connection number 9038705614 of TATA company. He identified his signature and photographs on the Customer Application Form Ex.PW8/A. He stated that he had furnished his ID proof i.e. SC No. 16/14 State Vs. Patit Sarkar 8 of 18 election ID Ex.PW8/B at the time of getting the mobile connection.
29. PW20 Abhijeet Biswas is the person, who is alleged to have been in relation with deceased. The witness turned hostile and denied from having any sort of relationship with deceased. He did not support the case of the prosecution.
30. Statement of accused under section 313 Cr.P.C. was recorded wherein he claimed false implication. He stated that his wife had fallen from stairs as there was no grill in the stairs. He further stated that there was no quarrel between him and his wife and they were living peacefully.
31. In support of his defence, accused has examined DW1 Smt. China Mandal.
32. I have heard and considered the submissions advanced by Shri M. Zafar Khan, learned Additional Public Prosecutor for State and Shri Anuj Kumar Garg, learned counsel for accused and perused the record of the case.
33. The main points for determination in the case is as to whether the accused caused injuries to deceased or she had fallen from upstairs and further whether the injury was of such a nature which was sufficient to cause death in the ordinary course of nature.
34. As per case of prosecution, accused killed his wife by strangulating her. PW11 Dr. Shabarish Dharam Pal conducted SC No. 16/14 State Vs. Patit Sarkar 9 of 18 postmortem on dead body of deceased Mamita Sarkar and gave his report which is Ex.PW11/A. Dr. Dharam Pal, on external and internal examination of dead body of deceased, found the following injuries : External Examination i. Laceration of size 0.5 cm x 0.5 cm present over inner aspect of upper lip at the frenulum with surrounding abrasion - contusion. ii. Abrasion - contusion with indentation of teeth present over inner aspect of right upper lip, placed more towards left side with oedema.
iii. Lacerated wound of size 1.5 cm x 0.3 cm x subcutaneous deep present over right side of front neck in an oblique manner, placed 3 cm below right angle of mandible. The margins of the wound are abraded and contused.
iv. Lacerated wound of size 2.5 cm x 0.3 cm x subcutaneous deep present over left side of front of neck in an oblique manner, the lower medial end is placed just lateral to the midline and 3 cm below the chin, the upper lateral end is placed 1.0 cms below the lower border of left mandible. The margins of the wound are abraded and contused.
v. Crescentric reddish abrasions of size ranging from 0.5 cm x 0.2 cm to 1 cm x 0.2 cm, arranged in a vertical fashion one below the other (three in number) present over left side of neck, placed 3 cm SC No. 16/14 State Vs. Patit Sarkar 10 of 18 present below left angle of mandible.
vi. Multiple reddish scratch abrasion present over the front of neck, vertically over an area of 15 cm x 12 cm directed downwards and obliquely.
vii.Lacerated wound of size 1.5 cm x 0.3 cm x 0.3 cm with surrounding abrasion - contusion present on the dorsum of right foot, placed over the base of right great toe.
viii.Cresentric reddish abrasions of size 0.5 cm x 0.3 cm present on dorsum of right foot, over the base of second toe. ix. Cresentric reddish abrasions of size 0.8 cm x 0.3 cm present on dorsum of right foot, present over the front of right ankle joint. Internal Examination Neck Structures : extravasation of blood present in and around sub cutaneous tissues and muscles of bilateral neck (more on the right side corresponding to injury no. 3) and around hyoid and thyroid cartilages. The cartilaginous structures are intact.
Chest:
Collar Bone / Sternum / Ribs : NAD Pleural Cavity: NAD. Lung Right / Left: Congested and edematous. Petechial haemorrhages not anterior surface and interlobar surface of both the lungs.
Heart:
SC No. 16/14 State Vs. Patit Sarkar 11 of 18 Pericaridum: NAD. Myocardium: NAD. Coronaries: NAD. Others:
NAD.
Abdomen Peritoneum, Peritoneal Cavity: NAD.
Stomach: empty. Walls: NAD.
Intestines: contains fluid and gases.
Liver : congested Spleen: NAD. Kidneys Right/left: Congested. Pelvis Pelvic cavity: NAD. Pelvic bones: NAD. Bladder: NAD. Uterus:empty Walls: NAD Spinal Column: NAD Head Scalp : NAD Skull : NAD Brain : Congested and edematous.
35. As per report of Dr. Dharam Pal, cause of death in this case was "asphyxia as a result of antemortem manual strangulation". He found that all the injuries on the person of victim were antemortem in nature. According to the opinion of Dr. Dharam Pal, the injuries on the neck were sufficient to cause death of victim in the ordinary course of nature. PW11 was crossexamined at length by counsel for accused and in his crossexamination nothing has come on record to doubt his SC No. 16/14 State Vs. Patit Sarkar 12 of 18 veracity. He remained consistent and firm throughout his deposition. He categorically asserted that the deceased Mamita died only on account of manual strangulation and not by fall in the staircase from third floor to second floor. From the testimony of PW11 Dr. Shabarish Dharam Pal, it stands proved on record that the death of deceased was homicidal and not accidental.
36. Now the next question arises as to who caused the death of deceased Mamita Sarkar. There is no eyewitness who saw the accused strangulating his wife. The case of prosecution is based on circumstantial evidence. Accused Patit Sarkar at relevant time was residing as a tenant on the roof of second floor of premises no. RZ251, Gali no. 19, Tara Apartment, New Delhi. PW1 Suraj is the son of owner of the house where accused was residing as a tenant. On the date of alleged incident, the mother of PW1 heard some thud and asked him (PW1) to check upper floor of the house. PW1 Suraj went upstairs and found accused Patit Sarkar having his wife on his legs/lap. As per the witness, wife of accused was senseless. He enquired from accused as to what had happened to his wife and accused told him that his wife had fallen. The deceased was taken to hospital by accused and was declared dead.
37. At the time of death of deceased Mamita Sarkar, there were only two persons in the room, one is the accused and another one SC No. 16/14 State Vs. Patit Sarkar 13 of 18 was deceased. No other person was available there. Deceased was last seen in the lap of accused. Accused has failed to explain as to who strangulated his wife. In the given facts and circumstances of the case, the only conclusion which can be drawn is that it was the accused Patit Sarkar, who killed his wife by strangulating her and nobody else.
38. It is the defence of accused that his wife Mamita Sarkar had fallen from upstairs as there is no grill in the stairs. DW1 Smt. China Mandal claims to be an eyewitness, who saw that the deceased i.e. wife of accused had fallen on the ground from roof of their house.
This witness appears to be an interested and planted witness as accused is her brother and she has deposed due to being in near relation of accused. She did not give any statement to the police during the course of investigation in the case. She also never complained to any superior authority for not recording of her statement. She also never approached the court with the plea that her statement was not recorded by the police despite she is an eyewitness of the incident. In fact if she was actually an eyewitness of the case, she ought to have given her statement to the police and veracity of her statement would have been verified.
39. The plea of accused and the testimony of DW1 China Mandal that deceased died due to fall from upstairs is falsified from the postmortem report Ex.PW1/A. As per postmortem report, the deceased died due to manual strangulation. PW11 Dr. Shabarish Dharam Pal in SC No. 16/14 State Vs. Patit Sarkar 14 of 18 his crossexamination has categorically stated that in the present case, it was not possible that deceased would have fallen from somewhere or suffered injuries due to fall, which would have resulted in her death. He stated that he observed finger marks on the neck of deceased as mentioned in his report. He further stated that he did not observe any fracture on the arms or legs of deceased. He asserted that the present case was not a case of suicide.
40. It was submitted by learned counsel for accused that deceased was having a history of epilepsy and on account of the same, she fell down on the stairs and due to this reason, she died. Specific question was put to PW11 Dr. Shabarish Dharam Pal in his cross examination as to whether he had read the MLC of patient before conducting the postmortem, to which he replied that he had read the MLC of patient before conducting the postmortem wherein history of seizure / epileptic fits was mentioned. He stated that a patient having fit of epilepsy while on stairs may loose consciousness and may fall but in cases of fall of tumbling nature, there has to be more injuries on her elbows and other parts of body. He further stated that in cases of fall by a patient without tumbling, there may not be injuries on elbows but there may be injuries on head. Dr. Dharam Pal categorically stated that as per his report Ex.PW11/A, there was no head injury observed by him. He further stated that he also did not observe any fracture on the arms SC No. 16/14 State Vs. Patit Sarkar 15 of 18 or legs of deceased. From the testimony of PW11 Dr. Shabarish Dharam Pal, the theory of accused that deceased died due to fall from stairs is completely ruled out.
41. The next question arises as to what was the motive for killing the deceased by accused. It was submitted by learned counsel for accused that prosecution has miserably failed to prove the motive behind committing the murder of deceased by accused. On the other hand, it was submitted by learned Addl. PP for State that though prosecution failed to prove the extra marital affairs of deceased with one person named Abhijeet, that was the reason for killing of deceased by accused, however, only on account of the fact that prosecution could not prove the motive for murder of deceased, case of prosecution cannot be thrown away. He argued that failure of prosecution to prove the motive of murder would not come in the way of conviction of accused.
42. It was held by Hon'ble Apex Court in case titled as Sahadevan @ Sagadevan Vs. State rep. by Inspector of Police 2003 (1) SCC 534 that "in the case of circumstantial evidence, if the circumstances relied upon by the prosecution are beyond doubt, then the absence of motive would not hamper a conviction."
43. In the case of Ujjagar Singh Vs. State of Punjab (2009) I SCC (Cri) 272, it was held that "in a case relating to circumstantial evidence, motive does assume great importance, but to SC No. 16/14 State Vs. Patit Sarkar 16 of 18 say that the absence of motive would dislodge the entire prosecution story is giving this one factor an important which is not due. Motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy."
44. It was held by Division Bench of Hon'ble High Court of Delhi in the case titled as Naveen Dabas Vs. State 219 (2015) DLT 242 (DB) that "the motive is undoubtedly a significant element which the prosecution has to establish to fasten criminal liability upon an accused. In the case of direct evidence, motive fades into insignificance. However, where the trial is based upon circumstantial evidence, the need to prove motive gets highlighted. At the same time, motive is elusive in the sense that what impels someone to behave in the manner that he or she does, ultimately lies locked in his or her mind. It is, therefore, all the more difficult to prove motive - much less exclusively."
45. In view of aforesaid dictum pronounced by Hon'ble Superior Courts, it is clear that motive is a significant element which prosecution should prove to fasten the criminal liability upon an accused. However, merely on account of failure of proof of motive by the prosecution, the entire case of prosecution cannot be thrown away / dislodged. The existence of motive is one of the circumstances which is to be kept in mind while appreciating the evidence led by the SC No. 16/14 State Vs. Patit Sarkar 17 of 18 prosecution. If the prosecution proves its case, otherwise, by cogent and credible evidence, failure to prove motive will not be fatal to the case of the prosecution. In the case in hand, the prosecution failed to prove extra marital affair of deceased with Abhijeet, which led to her unfortunate death. The case of prosecution has otherwise been proved beyond all shadow of reasonable doubt. Hence, in my view, failure of motive for death of deceased is not fatal to the case of prosecution.
46. For the reasons discussed above, this court is of the considered view that prosecution has succeeded to prove its case against accused beyond all shadow of reasonable doubt. Prosecution has proved that accused Patit Sarkar caused death of his wife Smt. Mamita Sarkar by strangulating her. Accordingly, accused Patit Sarkar is held guilty and is hereby convicted for having committed the offence punishable under section 302 IPC.
Announced in open court (RAJ KUMAR TRIPATHI)
today i.e 16th July, 2015 Addl. Sessions Judge02:South East
Saket Court: New Delhi
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