Delhi District Court
State vs Mani Kamat//Fir No. 230/08 on 24 May, 2011
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THE COURT OF SHRI SANJAY KUMAR,
ADDITIONAL SESSIONS JUDGE - 01,
DISTRICT NORTH WEST, ROOM NO. 308,
ROHINI COURTS, DELHI
SC No. 157/08
FIR No. 230/08
PS : Ashok Vihar
U/s. 302/376/511 IPC
State
Versus
Mani Kamat @ Dinesh
S/o Sh. Kaleshwar Kamat
R/o. Village Balha, Post Bhaya Supur
PS Sopol, District Sopol
Bihar.
Date of Institution : 03.12.2008
Date of receipt of case in this court : 03.12.2008
Arguments heard On : 20.05.2011
Order Announced On : 24.05.2011
Order on Sentence Announced on : 24.05.2011
SHRI P.K. VERMA, APP FOR THE STATE
MS. SADHNA BHATIA, AMICUS CURIAE FOR THE ACCUSED
ORDER ON SENTENCE
Present : Sh. P. K. Verma, APP for the State.
Convict in JC with amicus curiae Ms. Sadhna
Bhatia.
1. It has been submitted by amicus curiae for convict
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Mani Kamat that convict is married and aged about 37 years
and his family consists of wife with three minor children having
age 8 years, 6 years and 3 years respectively. It is also
submitted that the convict is the only earning member of his
family and has no previous record of conviction. The family of
convict will be on the verge of starvation in the absence of
convict. She requested that lenient view may be taken against
the convict.
2. On the other hand, Sh. P.K. Verma, Ld. APP for the
State submits that the convict planned the incident, in which,
he killed the deceased in gruesome manner after he failed in
his attempt to rape her. Ld. APP has vehemently submitted
that convict be awarded maximum punishment.
3. I have heard Ld. APP for the State as well as the Ld.
Defence Counsel for Convict.
4. Security of persons and property of the people is a
paramount function of the State which could be achieved
through machinery of criminal law. Protection of society and
stamping out criminal proclivity must be the object of law which
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must be achieved by imposing appropriate sentence. The facts
and given circumstances in each case, the nature of crime, the
manner in which it was planned and committed, the motive for
commission of the crime, the conduct of the convicts. The
nature of weapons used and all other attending circumstances
are relevant facts which would enter into the area of
consideration. Undue sympathy to imposed inadequate
sentence would do more harm to the justice system to
undermine the public confidence in the efficacy of law and
society could not long endure under such serious threats. It is,
therefore, the duty of every court to award proper sentence
having regard to the nature of the offence and the manner in
which it was executed or committed etc.
5. It was observed in case of Dhananjoy Chatterjee
@ Dhana Vs. State of West Bengal, 1995 AIR SCW 510 as
under :-
"Of course, it is not possible to lay down any cut
and dry formula relating to imposition of sentence
but the object of sentencing should be to see that
the crime does not go unpunished and the victim
of crime as also the society has the satisfaction
that justice has been done to it in imposing
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sentences, in the absence of specific legislation.
Judges must consider variety of factors and after
considering all those factors and taking an overall
view of the situation impose sentence which they
consider to be an appropriate one. Aggravating
factors cannot be ignored and similarity mitigating
circumstances have also to be taken into
consideration.
In our opinion, the measure of punishment in a
given case must depend upon the atrocity of the
crime; the conduct of the criminal and the
defenceless and unprotected state of the victim.
Imposition of appropriate punishment is the
manner in which the courts respond to the
society's cry for justice against the criminals.
Justice demands that courts should impose
punishment fitting to the crime so that the courts
reflects public abhorrence of the crime. The courts
must not only keep in view of the rights of criminal
but also the rights of the victim of crime and the
society at large while considering imposition of
appropriate punishment."
6. It was also observed in case of Jashubha
Bharatsing Gohil Vs. State of Gujrat, (1994) 4 SCC 353
that the protectiion of the society and deterring the criminal is
avowed object of law and that is required to be achieved by
imposing appropriate sentence.
7. It was held in the case of Siddarama & others Vs.
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State of Karnataka, (2007) 1 SCC (Cri) 72 :-
"the object should be to protect the society and to
deter the criminal in achieving the avowed object
to law by imposing appropriate sentence. It is
expected that the courts would operate the
sentencing system so as to impose such sentence
which reflects the conscience of the society and
the sentencing process has to be stern where it
should be.
Imposition of sentencing without considering its
effect on the social order in many cases may be in
reality a futile exercise. The social impact of the
crime e.g. where it relates to offences relating to
narcotic drugs or psychotropic substances which
have great impact not only on the health fabric
but also on the social order and public interest,
cannot be lost sight of and per se require
exemplary treatment. Any liberal attitude by
imposing meagre sentences or taking too
sympathetic view merely on account of lapse of
time or personal inconveniences in respect of such
offences will be result wise counterproductive in
the long run and against societal interest which
needs to be cared for an strengthened by a string
of deterrence inbuilt in the sentencing system."
8. It was observed in the case of Shivaji @ Dadya
Shankar Alhat Vs. State of Maharashtra, 2008 (4) RCR
(Criminal) 202 as under :-
"Proportions between crime and punishment is a
goal respected in principles, and in spite of errant
notions, it remains a strong influence in the
determination of sentences. The practice of
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punishing all serious crimes with equal severity is
now unknown in civilized societies, but such a
radical departure from the principle of
proportionality has disappeared from the law only
in recent times. Even now for a single grave
infraction drastic sentences are imposed.
Anything less than a penalty of greatest severity
for any serious crime is unwarranted and unwise.
But in fact, quite apart from those considerations
that make punishment disproportionate
punishment has some very undesirable practical
consequences."
9. In case State of Punjab Vs. Prem Sagar and
Others (2008) 7 SCC 550 it was observed that the Indian
Judicial System has not been able to develop legal principles as
regards sentencing. It was further observed that whether the
court while awarding sentence would take recourse to the
principle of deterrence or reform or invoke the doctrine of
proportioonality would depend upon the facts and
circumstances of each case and while doing so nature of
offence said to have been committed by the accused plays an
important role. A wide discretion is conferred on the court but
said discretion must exercise judicially while sentencing an
accused. It would depend upon the circumstances in which the
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crime has been committed and the mental state and the age of
the accused is also relevant. It was observed as under :
"In our judicial system, we have not been able to
develop legal principles as regards sentencing.
The superior courts except making observations
with regard to the purport and object for which
punishment is imposed upon an offender, have
not issued any guidelines. Other developed
countried have done so.
Whether the court while awarding sentence would
take recourse to the principle of deterrence or
reform or invoke the doctrine of proportionality
would no doubt depend upon the facts and
circumstances of each case. While doing so,
however, the nature of the offence said to have
been committed by the accused plays an
important role. The offences which affect public
health must be dealt with severely. For the said
purpose, the courts must notice the object for
enacting Article-47 of the Constitution of India.
A sentence is a judgment on conviction of a crime.
It is resorted to after a person is convicted of the
offence. It is the ultimate goal of any justice
delivery system. Parliament, however, in providing
for a hearing a sentence, as would appear from
sub-section (2) of Section 235, sub-section (2) of
Section 248, Section 325 and also Section 360 and
361 of the Code of Criminal procedure, has laid
down certain principles. The said provisions lay
down the principle that the court in awarding the
sentence must take into consideration a large
number of relevant factors; sociological backdrop
of the accused being one of them. Although a
wide discretion has been conferred on the court
but said discretion must exercise judicially. It
would depend upon the circumstances in which
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the crime has been committed and the mental
state. Age of the accused is also relevant."
10. The punishment provided under Section 302 IPC is
death or life imprisonment as a penalty for murder. The Indian
Penal Code has under gone multi facet changes for the last
three decades which indicates that the Parliament has taken
note of contemporary criminological thought and movement.
The Indian Penal Code reflects a definite swing towards life
imprisonment. Death sentence is ordinarily ruled out and can
only be imposed for "special reasons". As provided in Section
354 (3) CrPC. It indicates that reformation and rehabilitation of
offenders and no deterrence, are now among the foremost
objects of the administration of criminal justice in the country.
Section 354(3) CrPC. is a part emerging picture of acceptance
by the legislature of the new trends in criminology. The
personality of an offender revealed by his age, character,
antecedents and other circumstances and the tractability of the
offender to reform must necessarily play the most prominent
role in determining the sentence to be awarded. A judge has to
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balance the personality of the offender with the circumstances,
situations and the reactions and choose the appropriate
sentence to be imposed. The former rule that the normal
punishment for murder is death is no longer operative and it is
now within the discretion of the court to pass either the
sentence prescribed in Section 302 IPC.
11. In case Bachan Singh Vs. State of Punjab, AIR
1980 SC 899 it was observed that a real and abiding concern
for the dignity of human life postulates resistance to taking a
life through law's instrumentality. The ought not to be done
save in the rarest of rare cases when the alternative option is
unquestionably foreclosed.
12. In case Machhi Singh Vs. State of Punjab, AIR
1983, SC 957 the guidelines are laid down which are to be
kept in view, considering the question whether the case belongs
to the rarest of rare category. It was observed that the
following question may be asked and answered as a test to
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determine the 'rarest of rare' case in which death sentence can
be inflicted:-
1. Is there something uncommon
about the crime which renders
sentence of imprisonment for life
inadequate and calls for death
sentence?
2. Are the circumstances of the
crime such that there is no
alternative but to impose death
sentence even after according
maximum weightage to the
mitigating circumstances which
speak in favour of the offender?
13. In the case of Machhi Singh (Supra) the
guidelines were culled out which are to be applied to the facts
of each individual case where the question of imposition of
death sentence arises. The following preposition emerges from
the Bachan Singh's case :-
i. The extreme penalty of death need not be
inflicted except in gravest cases of
extreme culpability.
ii. Before opting for the death penalty the
circumstances of the 'offender' also
required to be taken into consideration
along with the circumstances of the
'crime'.
iii. Life imprisonment is the rule and death
sentence is an exception. Death sentence
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must be imposed only when life
imprisonment appears to be an altogether
inadequate punishment having regard to
the relevant circumstances of the crime,
and provided, and only provided, the
option to impose sentence of
imprisonment for life cannot be
conscientiously exercised having regard
to the nature and circumstances of the
crime and all the relevant circumstances.
iv. A balance sheet of aggravating and
mitigating circumstances has to be drawn
up and in doing so the mitigating
circumstances have to be accorded full
weightage and just balance has to be
struck between the aggravating and the
mitigating circumstances before the
option is exercised.
14. In case Bablu @ Mubarak Hussain Vs. State of
Rajasthan, AIR 2007 SC 697 the Supreme Court observed as
under :-
"In rarest of rare cases when collective conscience of
community is so shocked that it will except the
holders of the judicial power center to inflict death
penalty irrespective of their personal opinion as
regards desirability or otherwise of retaining death
penalty, death sentence can be awarded. The
community may entertain such sentiment in the
following circumstances :-
i. When the murder is committed, in an
extremely brutal, grotesque, diabolical,
revolting and dastardly manner so as to
arouse intense and extreme indignation of
the community.
ii. When the murder is committed for a motive
which evinces total depravity and
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meanness; e.g murder by hired assassin for
money or reward or a cold-blooded murder
for gains of a person vis-a-vis whom the
murderer is in a dominating position or in a
position of trust, or murder is committed in a
course for betrayal of the motherland.
iii. When murder of a member of a Scheduled
Caste or minority community etc., is
committed not for personal reasons but in
circumstances which arouse social wrath, or
in cases of 'bride burning' or 'dowry deaths'
or when murder is committed in order to
remarry for the sake of extracting dowry
once again or to marry another woman on
account of infatuation.
iv. When the crime is enormous in proportion.
For instance when multiple murders, say of
all or almost all the members of a family or
a large number of persons of a particular
caste, community or locality, are
committed.
v. When the victim of murder is an innocent
child, or helpless woman or old or infirm
person or a person vis-a-vis whom the
murder is in a dominating position or a
public figure generally loved and respected
by the community."
15. On the basis of above observations and discussion in
the present facts and circumstances of the case, the present
case does not fall within the category of "rarest of the rare
category", as such, the death penalty cannot be awarded to
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the convict. The latest decision of the Hon'ble Supreme Court of
India pertaining to imposition of sentence in the case of
Santosh Kumar Satishbhushan Bariya vs. State of
Maharashtra, decided on 13.05.2009. Another important
fact pertaining to sentencing the procedure being considered.
Imprisonment for life as a penalty entails that the convict must
remain in the imprisonment till his life i.e would never to set
free from the jail. However, the code of Criminal Procedure
provides power to executive under Section 433 CrPC which
subject to the restrictions provided by Section 433 CrPC.
According to which a convict sentenced to imprisonment for life
for whose death sentence has been commuted to imprisonment
for life cannot be released for prison unless served at least 14
years of imprisonment. The Hon'ble Supreme Court of India in
the case of Swami Shraddhanand vs. State Karnataka
2008 (13) SCC 767 imposed upon State the condition that
accused would not be entitled to any commutation or
premature release.
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16. In the present case, convict Mani Kamat @ Dinesh
murdered a poor, young and helpless girl of 19 years of age, in
a planned and cruel manner after he failed in an attempt to
rape her at the house where she was working as maid servant.
17. Hence in the present case, I sentence convict Mani
Kamat @ Dinesh to undergo Rigorous Imprisonment for life
along with fine of Rs. 10,000/- (Rupees Ten Thousand)
and in default of payment of fine the convict shall
undergo Simple Imprisonment for one year for offence
punishable under Section 302 IPC.
18. It is made clear that in view of the law laid down by
Hon'ble Supreme Court of India in the case of Swami
Shraddhanand (Supra) the appropriate sentence of
imprisonment for life is that the convict namely Mani Kamat @
Dinesh has to undergo actual sentence of 35 years and grant of
remission shall not be considered till the actual sentence of 35
years. Benefit of section 428 Cr.P.C. Shall be given to the
convict. Copy of judgment and order on sentence be supplied
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free of cost. Sessions file be consigned to record room.
Announced in the open court (SANJAY KUMAR)
today i.e. 24.05.2011 ASJ-01 (NW),ROHINI
COURTS: DELHI
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THE COURT OF SHRI SANJAY KUMAR,
ADDITIONAL SESSIONS JUDGE - 01,
DISTRICT NORTH WEST, ROOM NO. 308,
ROHINI COURTS, DELHI
SC No. 157/08
FIR No. 230/08
PS : Ashok Vihar
U/s. 302/376/511 IPC
State
Versus
Mani Kamat @ Dinesh
S/o Sh. Kaleshwar Kamat
R/o. Village Balha, Post Bhaya Supur
PS Sopol, District Sopol
Bihar.
Date of Institution : 03.12.2008
Date of receipt of case in this court : 03.12.2008
Arguments heard On : 20.05.2011
Order Announced On : 24.05.2011
SHRI P.K. VERMA, APP FOR THE STATE
MS. SADHNA BHATIA, AMICUS CURIAE FOR THE ACCUSED
JUDGMENT
The facts as projected in the charge sheet are that on 05.0708 DD No. 11A was recorded in the police station on information that at H-5, Ashok Vihar, Phase I, Delhi a maid servant who had slept in a room was not opening the door. On STATE VS MANI KAMAT//FIR NO. 230/08 PSASHOK VIHAR // U/S 302/376/511 IPC :17: this information Insp. Bahadur Singh along with SI Rajiv Ranjan, Ct. Ram Mehar and Ct. Sudhir reached the spot and found that on the second floor at H-5, Ashok Vihar, Phase I in a room in front of varandah on a cot a girl, whose name came to be known as Jimmy Boodh permanent resident of Jharkhant aged about 19 years, was lying dead and blood had oozed out of her mouth and nostrils. On the floor broken bangles had also scattered, blood was found on the wall, few broken hair were also stuck there and on the floor pillow was also lying. Neck of the deceased was having marks and her face had turned slight blue.
2. After thorough investigation of the spot, Insp. Bahadur Singh got FIR u/s 302 IPC registered. Crime team was called at the spot and spot of crime was photographed. Crime team prepared its report and handed over the same to investigation officer Insp. Bahadur Singh. Site plan of the place of spot was prepared and exhibits were lifted and seized from the spot. Statement of witnesses were recorded and case STATE VS MANI KAMAT//FIR NO. 230/08 PSASHOK VIHAR // U/S 302/376/511 IPC :18: property was deposited with the MHC (M). During investigation of the case statement of Ram s/o Shiv Dutt Mandal and Budhi Bahadur s/o Dhanmun Kambli u/s 161 CrPC were recorded.
3. On 06.07.08 accused Mani Kamat was arrested in this case and his disclosure statement was recorded. During investigation accused got recovered his blood stained T-Shirt, which was sealed and seized. Accused Mani Kamat also pointed out the place of occurrence and accused was sent for medical examination. On 09.07.08 postmortem on the body of deceased was conducted and body was handed over to its claimants after postmortem. Exhibits seized in this case were sent to FSL for analysis. Site plan of the spot was also prepared and section 376/511 IPC were also added. After completion of investigation charge sheet was filed against the accused u/s 302/376/511 IPC in the court.
4. Ld. MM after compliance of section 207 CrPC committed the case to the court of Sessions.
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5. Vide order dated 02.02.2009 charge under section 302 IPC was framed against the accused to which he pleaded not guilty and claimed trial.s
6. Prosecution in support of its case examined following witnesses :-
Public Witnesses :
1. PW1 Ram
2. PW2 Sanjay Gupta
3. PW3 Budhi Bahadur
4.PW4 Dr. Rekha
5. PW7 Dal Chand
6. PW12 Dr. Gopal Krishna Gupta Medical Witnesses :
1. PW5 Dr. R. S. Mishra
2. PW11 Dr. K. Goel
3. PW9 Naresh Kumar
4. PW23 Danial Lonja STATE VS MANI KAMAT//FIR NO. 230/08 PSASHOK VIHAR // U/S 302/376/511 IPC :20: Formal Police Witnesses :
1. PW6 SI Manohar Lal
2. PW8 W/HC Prafulla
3. PW10 Ct. Anil Kumar
4. PW14 Ct. Dashrath
5. PW15 Ct. Vipendra Singh
6. PW16 Ct. Dalbir Singh
7. PW17 SI Mata Din
8. PW19 Ct. Nitesh
9. PW20 HC Mohan Singh Police Witnesses who remained in investigation :-
1. PW13 SI Rajiv Ranjan
2. PW18 HC Sudhir Singh
3. PW21 HC Ram Mehar
4. PW22 HC Mukesh Kumar
5. PW24 Insp. Bahadur Singh
7. As per statement of Addl. PP for State dt. 19.04.2011 Sh. P.K.Verma, prosecution evidence was closed.
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8. Statement of accused was recorded under section 313 Cr.P.C. Accused pleaded innocence and wished to examine witnesses in defence. However, later on no evidence was produced by him and defence evidence was closed.
9. I have heard ld. Addl. PP for state Sh. P.K. Verma and Ms. Sadhna Bhatia, ld. amicus curiae for accused and perused the record.
10. The present case is based upon circumstantial evidence. The principle of law laid down by the Apex Court is as follows. The Supreme Court in the case of Hanumant Govind Nargundkar Vs. State of M. P. AIR 1952 SC 343 observed as under : -
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be dawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be such as to exclude every hypothesis by the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any STATE VS MANI KAMAT//FIR NO. 230/08 PSASHOK VIHAR // U/S 302/376/511 IPC :22: reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
The Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SC 1622 held that onus was on prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of Supreme Court before conviction can be based on circumstantial evidence must be fully established.
The Supreme Court in the case of State of U.P. Vs. Ashok Kumar Srivastava 1992 Crl. L.J. 1104 it was pointed out in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences the one in favour of the accused must be accepted. It was also pointed out that the circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established constant only with the hypothesis of guilt.
STATE VS MANI KAMAT//FIR NO. 230/08 PSASHOK VIHAR // U/S 302/376/511 IPC :23: The Supreme Court in the case of C. Chenga Reddy Vs. State of A. P. 1996 SC 193, it has been observed that :
"in a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
In a recent case, Supreme Court reiterated the principle of the circumstantial evidence, in the case of Manunath Chennabasapa Madalli Vs. State of Karnataka AIR 2007 SC 2080.
11. According to the principles laid down by Apex Court, a case resting upon the circumstantial evidence must satisfy the following test : -
1. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
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2. those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
3. the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
4. the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
12. The prosecution in the present case has to prove the following chain of circumstances against the accused :-
1. Deceased Jimmy Budh was employed as maid servant at H-5, Ashok Vihar, Phase-I, Delhi at the house of PW4 Dr. Rekha and PW12 Dr. Gopal Krishna Gupta
2. Deceased Jimmy Budh was murdered on the night intervening 4/5.07.08 at H-5, Ashok Vihar, Phase I, Delhi.
3. House No. H-4, Ashok Vihar, Phase I, Delhi i.e. the house adjoining H-5, Ashok Vihar, Phase I, Delhi (place of murder) was under construction on the night intervening 4/5.07.08 and accused was residing at H-4, Ashok Vihar, Phase I, Delhi.
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4. Recovery of small hairs from the right hand of deceased.
5. Injuries on the person of accused specially scratch injuries at the time of his arrest.
Circumstance No. 1
13. Prosecution in support of its case examined PW23 Danial Lonja, the owner of placement agency Aadivasi Sewa Service who proved the placing of deceased Jimmy as maid servant at the house of Dr. Gopal Kishan Gupta. He proved his placement agency papers Ex. PW23/A bearing photograph of deceased Jimmy.
14. PW4 Dr. Rekha, employer of deceased maid servant deposed that on 04.07.08 she along with her husband and children went to see movie around 9.00 pm and returned at about 1.00 am. PW1 Ram was employed as cook in their house. On the next morning, on 05.07.08 she called her maid servant Jimmy but received no response. The door of her room was bolted from the other side. She directed Ram to go from House no. H-4, Ashok Vihar to see why Jimmy was not responding by climbing the roof. Ram went there and opened the door of stair STATE VS MANI KAMAT//FIR NO. 230/08 PSASHOK VIHAR // U/S 302/376/511 IPC :26: case and room where Jimmy was sleeping. Her husband PW12 Dr. Gopal Krishan Gupta also reached there. She further deposed that she found blood and broken bangles on the floor of that room. Her husband called the police.
15. In her cross examination she explained that Ram has been working for the last 10-12 years. The stairs of the house goes up to roof at second floor. On that day the staircase door was bolted from the other side and room of Jimmy was found bolted from inside. She expressed that she cannot say whether on the day of incident, the room of Jimmy was bolted from inside or outside.
16. PW12 Dr. Gopal Krishna Gupta has deposed that a maid servant was hired by them from placement agency Adivasi Sewa Service at B-6-7, Shakurpur, Delhi and the name of maid was Jimmy Budh who belonged to Jharkhan and was kept for household work. He corroborated the fact that he along with family went to watch a movie on 04.07.08. Cook Ram and maid servant Jimmy remained at the house.
STATE VS MANI KAMAT//FIR NO. 230/08 PSASHOK VIHAR // U/S 302/376/511 IPC :27:
17. On the next day at about 6.00 / 6.30 am his wife, PW4 Dr. Rekha knocked the door of the room of maid servant but there was no response. Thereafter Ram was asked to go adjacent house which was under construction i.e. H-4, Ashok Vihar and called the chowkidar Bahadur Singh for reaching at the top floor and see why Jimmy was not responding. Thereafter he asked them to open the door from the upstairs after reaching from H. No. H-4. Thereafter the door of the room was opened and they all found Jimmy lying dead on cot and her clothes were scattered. Her hair were also lying around the cot. Some blood was found at the mouth and she was looking bluish.
18. He has further deposed that the police officials were called and they reached there and photographs of the scene of crime were taken. Some blood was lying on the wall and bangles were also lying broken. Some blood was also found on the nails of deceased Jimmy. Thereafter dead body was removed to hospital. He further deposed that his servant Ram told him that in the night hours, the dog was barking in the night and when he came out from the house he found one man jumping from his house to the roof of H-4.
STATE VS MANI KAMAT//FIR NO. 230/08 PSASHOK VIHAR // U/S 302/376/511 IPC :28:
19. In the cross examination, he has deposed that police recorded his statement twice on 05.07.08 and 24.09.08 servant Ram used to sleep on the ground floor. The door of the room of Jimmy was bolted from inside. He admitted that accused never entered his house in his presence. He further corroborated that the dog squad came and police lifted exhibits in his presence. He has denied that his servant Ram never told him that he had seen shadow of a man jumping from H. No. H-4, Ashok Vihar an also heard barking of dog.
20. Perusal of the testimony of PW4 Dr. Rekha and PW12 Dr. Gopal Krishna Gupta corroborates the fact that on the intervening night of 4/5.07.08 deceased Jimmy Budh was working as maid servant at their house. They both are the employers of deceased Jimmy Budh is corroborated by PW23 Danial Lonja. Hence prosecution has succeeded in proving the fact that deceased Jimmy Budh was working as maid servant at H-5, Ashok Vihar, Phase-I, Delhi at the house of PW4 Dr. Rekha and PW12 Dr. Gopal Krishna Gupta.
STATE VS MANI KAMAT//FIR NO. 230/08 PSASHOK VIHAR // U/S 302/376/511 IPC :29: Circumstance No. : 2
21. Prosecution in support of its case has also examined PW1 Ram who was working as cook in H-5, Ashok Vihar. He has deposed that he was residing in the above said kothi in a room near the main gate and on the intervening night of 4/5.07.08 at around 12.30 am when he was sleeping, he heard the sound of barking of dog and when he came out of room he saw a persons crossing from the above kothi to adjacent kothi which was under construction. He has also deposed that on the next morning he was called by her employee and told her that their maid servant Jimmy, who was living in a room on the roof, was not responding to their calls. When he went upstairs the door of the room of maid was locked. He knocked the door but no one opened it.
22. He has also deposed that at that time watchman of adjacent house namely Bahadur was also with him. He brought a wooden staircase and opened the latch of the said door and when he and Bahadur entered the room, they found maid Jimmy lying on the bed and she was not responding any call.
STATE VS MANI KAMAT//FIR NO. 230/08 PSASHOK VIHAR // U/S 302/376/511 IPC :30: Thereafter he called his employers. After their arrival doctor was also called there who examined the maid Jimmy. Blood was there on the nostril of Jimmy and her mouth was opened. The doctor declared maid Jimmy as dead. He has also deposed that he could not see the face of the person who jumped from the roof to adjacent house but only had a glimpse of his back and on the basis of glimpses he identified accused as the person who jumped from the kothi of his employer to adjacent under construction kothi on the night of 04/05.07.08.
23. In his cross examination by Ld. Amicus Curiae he has stated that the roof of house no. 4 and 5 are having no gap. He has stated that the room of deceased maid Jimmy was on the third floor and was approachable through staircase which was situated inside the house. He further stated that police inquired from the labours who were working in the under construction kothi. He denied the suggestion that on the instruction sof police he identified the accused and deposed against him or that accused is not that person who jumped on 04.07.08 from Kothi no. 5 to Kothi No. 4.
STATE VS MANI KAMAT//FIR NO. 230/08 PSASHOK VIHAR // U/S 302/376/511 IPC :31:
24. PW3 Budhi Bahadur, has testified that he was working as watchman at H-4, Ashok Vihar, Phase-I, Delhi which is under construction for the last two years and the said house belongs to Sh. Sanjay Gupta. He identified the accused as a baildar under a marble contractor who was working at the above said house and also used to sleep in the said house. He has also testified that on the night when murder of deceased Jimmy took place, accused had slept at the above said house and on the next early morning accused woke him up and told him that he was going to Mayapuri at his brother's place for some work and will come back after one hour but he never returned. Thereafter servant of adjacent kothi Ram came to him and told that their servant who sleeps on the roof is not responding and he took their wooden staircase to climb to roof of H-5, Ashok Vihar, Phase-I, Delhi. He along with Ram went to the roof of H-5 and when Ram opened the room on the roof he saw dead body of the maid lying there.
STATE VS MANI KAMAT//FIR NO. 230/08 PSASHOK VIHAR // U/S 302/376/511 IPC :32:
25. In his cross examination, he has stated that on the night of incident only accused was sleeping at H-4, Ashok Vihar. He has stated that he did not hear any voice of jumping of any person from H-5 Ashok Vihar. He denied the suggestions put to him by the Ld. Amicus curiae.
26. Testimony of PW4 Dr. Rekha and PW12 Dr. Gopal Krishna Gupta, the employer of deceased Jimmy Budh and owner of H-5, Ashok Vihar, Phase I, Delhi has been discussed above in detail. The fact of death of deceased Jimmy Budh at H-5, Ashok Vihar, Phase I, Delhi has also been corroborated by both these witnesses.
27. Deceased Jimmy Budh was found murdered at H-5, Ashok Vihar, Phase I, Delhi has further been corroborated by PW16 Ct. Dalbir Singh who deposed that on 05.07.08 he along with SI Mata Deen Meena, Incharge mobile crime team and other staff reached the scene of crime and he took photographs of the scene of crime. He proved the negatives of the photographs taken by him Ex. PW16/N1 to PW16/N4. PW17 STATE VS MANI KAMAT//FIR NO. 230/08 PSASHOK VIHAR // U/S 302/376/511 IPC :33: SI Mata Din, Incharge of mobile crime team deposed that on 05.07.08 he reached the spot of crime along with his staff and dog squad and found one dead body of lady on the second floor. He proved the detailed report prepared by him Ex. PW17/A.
28. Murder of deceased Jimmy Budh has also been corroborated by PW11 Dr. K. Goel, BJRM Hospital who proved that Dr. Munish Wadhawan conducted postmortem on the body of deceased Jimmy aged about 19 years. He proved the detailed postmortem report prepared by Dr. Munish Wadhawan Ex. PW11/A and also inquest papers Ex. PW11/B to PW11/B9.
29. On the basis of above discussion and observation, prosecution has proved beyond reasonable doubt that deceased Jimmy Budh, maid servant was murdered on the night intervening 4/5.07.08 at H-5, Ashok Vihar, Phase I, Delhi.
STATE VS MANI KAMAT//FIR NO. 230/08 PSASHOK VIHAR // U/S 302/376/511 IPC :34: Circumstance No. 3
30. In support of its case, prosecution also examined PW2 Sanjay Gupta, who deposed that he is the owner of H-4, Ashok Vihar, Phase-I, Delhi and the same is under construction for the last two years prior to date of incident. He further deposed that work relating to marble was given to a contractor who deputed few labours for work and accused was one of them and he also used to stay there in the night as told to him by the watchman Budhi Bahadur.
31. The fact that H-4, Ashok Vihar, Phase I, Delhi which is adjoining the kothi where the murder of deceased Jimmy Budh took place i.e. at H-5, Ashok Vihar, Phase I, Delhi, was under
construction and accused Mani Kamat used to reside at the under construction house has also been corroborated by PW1 Ram and PW3 Budhi Bahadur. Thus in view of the above discussion, prosecution has proved that H-4, Ashok Vihar, Phase I, Dehi was under construction on the night intervening 4/5.07.08 and accused Mani Kamat used to reside in the under construction house.
STATE VS MANI KAMAT//FIR NO. 230/08 PSASHOK VIHAR // U/S 302/376/511 IPC :35: Circumstance No. : 4
32. The investigation officer PW24 Insp. Bahadur Singh examined the scene of crime along with PW13 SI Rajiv Ranjan and seized some pieces of small hair vide seizure memo Ex. PW13/A and sealed them. PW17 SI Mata Din, Incharge Crime Team in his detailed crime team report Ex. PW17/A also mentions the presence of hairs. These seized small hairs and the bunch of hairs which was seized after arrest of the accused, both were sent to FSL for analysis. PW9 Naresh Kumar, Sr. Scientific Assistant (Biology) examined all exhibits and prepared detailed biological report Ex. PW9/A and serological report Ex. PW9/B. The small hair which were found in the right hand of the deceased were given Ex. 6 of injured and accused which were seized after arrest described as Ex.9. PW9 Naresh Kumar in his report after analysis gave the specific finding that Ex. 6 and Ex. 9 are the hairs of human origin and Ex. 6 and Ex. 9 were found to be similar in most of their characteristics.
STATE VS MANI KAMAT//FIR NO. 230/08 PSASHOK VIHAR // U/S 302/376/511 IPC :36:
33. In the statement of accused recorded u/s 313 CrPC specific questions were put to the accused in regard to Ex. 6 and Ex.9 and the biological report Ex. PW9/A but no explanation has been put forward by the accused. It clearly establishes that the small hairs found in the right hand of the deceased and the hairs of the accused, which were seized after his arrest belongs to one human being i.e. accused Mani Kamat @ Dinesh. Presence of scalp hair of accused recovered from the hands of deceased as well as suspicion raised by PW1 Ram and PW3 Budhi Bahadur turns the suspicion into certainty that accused was the person who committed the murder of deceased Jimmy Budh. Hence prosecution has succeeded in proving this fact beyond reasonable doubt that small hairs recovered from the right hand of deceased belong to accused Mani Kamat @ Dinesh.
Circumstance No. : - 5
34. PW5 Dr. R. S. Mishra, proved the MLC of accused dt. 06.07.08 Ex. PW5/A. He also identified the blood sample of the accused Ex. P1 and scalp hair of accused seized by IO Ex. P2. He also proved the following injuries : -
STATE VS MANI KAMAT//FIR NO. 230/08 PSASHOK VIHAR // U/S 302/376/511 IPC :37:
1. Superficial linear scratch measuring 5 cm long on left lateral side neck.
2. Superficious scratch (linear) measuring 2 cm long on anterior side neck just below cricoid cartilage.
3. Superficially linear scratch measuring 1 cm long around 3 cm below the manubrium sterni of anterior chest wall.
4. Superficially linear scratch measuring 1 cm long just below the left sterno clavicular joint of anterior chest wall.
5. Superficial linear scratch measuring 1½ cm long on left side of nose (lateral to medial canthus of left eye).
6. Abrasion on right knee joint.
7. Subconjuctival hemorrhage of medial sclera of right eye.
35. While recording statement of accused u/s 313 CrPC specific question was put to accused regarding the injuries which were found on his person at the time of his arrest mentioned on his MLC Ex. PW5/A prepared by Dr. R. S. Mishra but the same was not properly rebutted by the accused. In these circumstances conclusion can be drawn that the nature of injuries on the body of accused i.e. the scratch marks as per MLC Ex. PW5/A are only possible when a person struggles with STATE VS MANI KAMAT//FIR NO. 230/08 PSASHOK VIHAR // U/S 302/376/511 IPC :38: another person. In this case injuries received by accused could only be possible when there was a struggle with deceased Jimmy Budh and accused Mani Kamat @ Dinesh.
PW24 Insp. Bahadur Singh, the investigation officer of this case, has testified that on 05.07.08 on receipt of DD no. 11-A Ex. PW11/B-6 he reached the spot of crime along with Ct. Ram Mehar and Ct. Sudhir. There SI Rajiv Ranjan was already present. On reaching the second floor of H-5, Ashok Vihar, Phase I, dead body of one lady i.e a maid servant was lying on a folding cot and her clothes were scattered. Blood was found on the her nose, floor and wall. Some broken bangle pieces and some hairs were found present there. Her name was came to be known as Jimmy from Jharkhand. Crime team was called and scene of crime was photographed. The crime team photographer's camera was not properly working, a private photographer Daal Chand was called and he took photos of the spot. This fact has been corroborated by PW7 Daal Chand.
STATE VS MANI KAMAT//FIR NO. 230/08 PSASHOK VIHAR // U/S 302/376/511 IPC :39: He has further testified that he prepared rukka and sent Ct. Sudhir for registration of FIR. Thereafter he informed the placement agency from where deceased Jimmy was hired and Danial, Incharge of the placement agency came there and identified the dead body. This fact has also been proved by PW23 Danial Lonja. Thereafter he prepared the site plan Ex. PW24/A and lifted blood samples, blood stained wall pieces, pieces of wall without blood, blood from the hand of deceased, broken hair, pieces of bangles, some pieces of small hair and one chunni of skyblue colour which was stained with blood. All these articles were seized vide memo Ex. PW 13/A and sealed. In the meantime, Ct. Sudhir came back with copy of FIR and original rukka and handed over the same to him. Thereafter dead body was removed to BJRM hospital for postmortem through Ct. Mohan. He moved application Ex. PW11/B-7 through PW13 SI Rajiv Ranjan for preservation of dead body and recorded statement of witnesses.
STATE VS MANI KAMAT//FIR NO. 230/08 PSASHOK VIHAR // U/S 302/376/511 IPC :40: PW24 Insp. Bahadur Singh, has further deposed that crime team handed over its report to him and during investigation he came to know from PW3 Budhi Bahadur, that accused Mani Kamat who was working as labour in under construction building left the premises at about 6.00 am and he was perplexed at that time. He has then testified that on 06.07.08 he along with PW13 SI Rajiv Ranjan, Ct. Sudhir, HC Sahib Singh and other staff left the police station in search of accused and reached Wazirpur Indl. Area. On receipt of secret information about the accused they along with secret informer reached Adarsh Nagar Railway Station and accused Mani Kamat was arrested. He was arrested and his personal search was prepared. Disclosure statement of accused was also recorded. In pursuance of his disclosure statement, blood stained T-shirt of accused which he was wearing at the time of committing the crime was recovered from H-4 Ashok Vihar, Phase-I and he also identified the place of incident. The blood stained T-Shirt was taken into possession and at the instance of accused pointing out memo of place of occurrence was prepared. Thereafter accused was sent to hospital for medical examination.
STATE VS MANI KAMAT//FIR NO. 230/08 PSASHOK VIHAR // U/S 302/376/511 IPC :41: On 09.07.08 he prepared inquest papers, request to the doctor for preserving the nail clipping of deceased Ex.PW11/B-2, Form 25.35 Ex.PW11/B-1, statement of witnesses regarding identification of dead body Ex. PW11/B-4 and PW11/B-5, brief facts Ex. PW11/B-8 and request for autopsy Ex. PW11/B. After postmortem blood sample in gauze, nail clipping of both hands, scalp hair, vaginal swab and clothes of deceased were handed over by the doctor which were seized vide memo Ex. PW24/A. On 29.08.08 he sent exhibits to FSL, Rohini through Ct. Dashrath. This fact has been corroborated by PW14 Ct. Dashrath. On 17.08.09 SI Manohar Lal was called and on his instructions he took rough notes and measurements and prepared the scaled site plan of the scene of crime. He recorded statement of witnesses and after completion of investigation charge sheet was filed against the accused in the court. It is pertinent to mention here that the testimony of PW24 Insp. Bahadur Singh has been corroborated by PW13 SI Rajiv Ranjan, PW18 HC Sudhir Singh and PW21 HC Ram Mehar.
STATE VS MANI KAMAT//FIR NO. 230/08 PSASHOK VIHAR // U/S 302/376/511 IPC :42: In his cross examination PW24 Insp. Bahadur Singh has stated that he did not record statement or interrogated any worker who were working in H-4, Ashok Vihar. He denied the suggestion that PW1 Ram and PW3 Buddi Bahadur have been planted later on as witnesses to strengthen the case. He has also stated that on seeing them at the railway station, he immediately stood up but before he could run, he was apprehended and all the writing work was done near the government vehicle. He denied the suggestion that accused has been falsely implicated in this case or that no disclosure statement was made by accused or that nothing was recovered at the instance of accused or that he did not conduct fair investigation. The facts relating to the investigation of the case have also been corroborated by PW13 SI Rajiv Ranjan, PW18 HC Sudhir Singh and PW21 HC Ram Mehar.
36. In view of forgoing discussion, the prosecution completes the chain of circumstances no. 1 to 5 against accused Mani Kamat @ Dinesh beyond reasonable doubt. The circumstances chain formed on the basis of cogent and firmed STATE VS MANI KAMAT//FIR NO. 230/08 PSASHOK VIHAR // U/S 302/376/511 IPC :43: proved evidence which infer the guilt of accused. The circumstances chain of evidence is definite and unerringly pointing towards guilt of the accused. The chain of circumstances if taken cumulatively forms a chain so complete that there is no escape from the conclusion within all human probabilities that the crime was committed by accused Mani Kamat. Lastly the circumstantial chain established by prosecution beyond reasonable doubt is inconsistent with the innocence of the accused.
37. Hence, accused Mani Kamat @ Dinesh is convicted of charge for the offence under section 302 IPC. He shall now be heard on the point of sentence.
Announced in the open court (SANJAY KUMAR) today i.e. 24.05.2011 ASJ-01 (NW),ROHINI COURTS: DELHI STATE VS MANI KAMAT//FIR NO. 230/08 PSASHOK VIHAR // U/S 302/376/511 IPC