Delhi District Court
State vs . Devender Dass on 28 November, 2014
FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 04/1/14 Unique Case ID No. 02404R0027582013 State Vs. Devender Dass S/o Sh. Sarju Dass R/o Village Salaiya, PO Bhitia, PS Phulli Dumer, District Banka, Bihar. FIR No. : 391/12 Police Station : Shahbad Dairy Under Sections : 302 IPC Date of committal to Sessions Court: 16.02.2013 Date on which judgment was reserved: 18.11.2014 Date on which Judgment pronounced: 28.11.2014 JUDGMENT
1. The criminal law was set into motion in the present case by Sh. Vinay Kumar Gupta(PW1) when he visited PP Metro Vihar of PS Shahbad Dairy on 01.11.12 at about 6.50 A.M and gave information that one Devender Dass who was residing as tenant in one of the rooms situated in house at K.No. 96/72, Dal Mill Road, Holambi Kalan, Delhi, committed murder of his wife. The said intimation was recorded by Ct. Parveen Kumar(PW16) vide DD no. 8PP(EX PW1/B0 and copy thereof was handed over to SI Mukesh Kumar(PW6) who alongwith HC Naresh Pal(PW9) and Ct. Jitender(PW14) State V/s Devender Dass ("Convicted") Page 1 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 rushed to the place of information for appropriate action.
2. It is mentioned in the charge sheet that when SI Mukesh Kumar alongwith HC Naresh Pal, Ct. Jitender and informer Sh Vinay Kumar Gupta reached the place of occurrence, it was noticed that one dead body of lady aged about 2324 years having visible injury marks on her face and abdomen, was lying on the floor of one of the rooms and one blood stained brick and one blood stained vegetable peeler knife were lying near the dead body.
3. It is alleged that the custody of accused namely Devender Dass was handed over by one public witness namely Bharat Lal(PW2) to SI Mukesh Kumar who accordingly informed about the said facts to concerned SHO and also called the Crime Team at the spot.
4. It is claimed that crime team headed by ASI Ajit Singh (PW11) alongwith photographer namely Ct. Manish(PW10) and other staff reached the place of information where they carried out inspection of the spot and also took photographs of the scene of crime.
5. It is further case of prosecution that SI Mukesh Kumar recorded statement (Ex PW1/A) of complainant namely Sh. Vinay Kumar Gupta who prepared his rukka(Ex PW6/A) on the basis thereof and got the FIR in question U/s 302 IPC registered through HC Naresh Pal. After registration of FIR, investigation was assigned to Inspector Sanjeev Chahar(PW20) who accordingly, reached the spot alongwith HC Naresh Pal.
6. It is further case of prosecution that on arrival of Inspector Sanjeev Chahar at the scene of crime, SI Mukesh Kumar handed over to him State V/s Devender Dass ("Convicted") Page 2 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 the crime team report and custody of accused herein. Accordingly, Inspector Sanjeev Chahar(IO) carried out inspection of the spot and got the dead body of deceased Ms. Phoolwati(wife of accused herein) shifted to mortuary of Sanjay Gandhi Memorial Hospital through Ct. Jitender(PW14).
7. It is further claimed that Inspector Sanjeev Chahar prepared rough site plan (Ex PW1/C), interrogated the accused and arrested him vide memo Ex PW1/D. IO also conducted personal search of accused vide memo Ex PW1/E and recorded disclosure statement Ex PW9/A made by the accused.
8. It is further claimed that IO Inspector Sanjeev Chahar lifted blood stained dari, blood stained brick and blood stained vegetable peeler knife and after preparing their separate pullandas, sealed the same with the seal of SKC and took them into police possession. Not only this, he also lifted blood stained earth by breaking concrete pieces with the help of hammer as also concrete pieces of earth control and after preparing separate pullandas thereof, sealed them with the seal of SKC. He also seized the blood stained pant and shirt worn by accused, after preparing their separate pullanda which was sealed with the seal of SKC.
9. It is further claimed that on 02.11.12, postmortem examination of dead body of deceased Ms. Phoolwati was got conducted through Dr. Vijay Dhanker(PW19) of BSA Hospital and after postmortem examination, dead body was handed over to relatives of deceased Phoolwati.
10. It is further claimed in the charge sheet that scaled site plan was State V/s Devender Dass ("Convicted") Page 3 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 got prepared on 16.12.12 and certain exhibits including plastic box containing viscera sample of deceased, pullanda containing wearing clothes of deceased, pullanda containing blood of deceased on gauze piece etc were collected from BSA hospital and were seized in this case. IO also obtained subsequent opinion in respect of objects used in the commission of offence, from Autopsy Surgeon namely Dr. Vijay Dhanker.. He also got the relevant exhibits deposited in FSL Rohini through Ct. Deepak and subsequently, the relevant FSL results were obtained from FSL Rohini and filed before the Court. After completion of investigation, chargesheet was filed in the Court.
11. After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
12. After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame the charge u/s 302 IPC against the accused vide order dated 25.02.2013, to which said accused pleaded not guilty and claimed trial.
13. In support of its case, prosecution has examined as many as twenty witnesses namely PW1 Sh. Vinay Kumar Gupta, PW2 Sh Bharat Lal, PW3 Sh Sukhbir Singh Mathur, PW4 Sh Kedar Das, PW5 Sh Kaleshwar Dass, PW6 SI Mukesh Kumar, PW7 SI Satya Narayan, PW8 Inspector Mahesh Kumar, PW9 HC Naresh Pal, PW10 Ct. Manish, PW11 ASI Ajit Singh, PW12 Ct. Ram Bhajan, PW13 Ct. Amit, PW14 Ct. Jitender, PW15 ASI Mahavir Singh, PW16 Ct. Parveen Kumar, PW17 Ct. Deepak, PW18 HC Ishwar Lal, PW19 Dr. Vijay Dhanker and PW20 Inspector Sanjeev Chahar. State V/s Devender Dass ("Convicted") Page 4 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014
14. Thereafter, statement U/s 313 Cr.P.C. of accused was recorded during which all the incriminating evidence were put to him. However, he denied the same and claimed that he is innocent and has been falsely implicated in this case. The accused has taken defence in his statement U/s 313 Cr.PC that he was not even present in the tenanted room/house during the intervening night of 31.10.12 and 01.11.12 and he returned back to the said room only at about 9.00 A.M on 01.11.12 when he came to know about the murder of his wife. He has pleaded complete ignorance of the incident in question by claiming himself to be innocent. He claimed that police officials intentionally let off actual offender and got him falsely implicated in this case in order to solve the present case. However, he did not opt to lead any defence evidence in this case.
15. I have heard Sh. Pankaj Bhatia, Ld. Addl. PP on behalf of State and ld. Amicus Curiae Ms. Sadhana Bhatia, Adv. on behalf of accused Devender Dass. I have also gone through the material available on record.
16. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record in order to see as to how the prosecution story has been unfolded by the prosecution witnesses during the course of trial. The said testimonies are detailed as under: PUBLIC WITNESSES
17. PW1 Sh. Vinay Kumar Gupta: He is the complainant in this case. He has deposed entirely on the lines of prosecution story as mentioned State V/s Devender Dass ("Convicted") Page 5 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 in the charge sheet, during chief examination. He categorically deposed that on 01.11.12 at about 6.15 A.M, he came outside his house on hearing the noise and saw that some persons had gathered outside the tenanted room of accused Devender Dass. Since the said room was closed from inside, he peeped from the iron grill of iron door of the tenanted room of accused and saw that Smt. Phoolwati who was wife of accused, was lying in unconscious state and there was blood on her face as well as on the ground near her body. The accused was also sitting behind the door.
He further deposed that accused did not open the door of his tenanted room despite being knocked due to which he gave several pushes to the door on which iron sheet and latch of the door were broken. Accused tried to flee when door was opened but was over powered by him with the help of public persons.
He further deposed that on enquiry, accused had told him that quarrel had taken place between him and his wife in the night and he had inflicted injuries on his wife with the help of peeler knife and brick due to which she died.
He further deposed that he went to PP Metro Vihar and informed the police on which police officials came to the spot, where his statement Ex PW1/A was recorded and site plan Ex PW1/C was also prepared at his instance.
He further deposed that accused was arrested in this case and the relevant exhibits i.e vegetable peeler knife, brick, blood stained dari, blood, State V/s Devender Dass ("Convicted") Page 6 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 etc. were lifted from the spot and the wearing clothes of accused were also seized by the police. He also identified accused as well as the relevant exhibits i.e brick as Ex P1, vegetable peeler knife as Ex P2 and jeans and shirt worn by accused as Ex P3 colly. during trial.
In his cross examination, he explained that there were 15 families residing in Holambi Kalan. The room in possession of accused was situated at a distance of 800900 yards from his room. He had peeped inside the room of accused from the mesh(iron jaali) installed on the door of the said room. He clarified that since police chowki(PP) was situated nearby, he himself went there instead of making PCR call at 100 number. He denied the relevant suggestions put to him on behalf of accused that he was not present at the spot and he was stock witness of the police and accused was not present at the spot at the time of incident in question.
18. PW2 namely Sh. Bharat Lal: This witness was residing in room adjacent to the tenanted room of accused at Khasra no. 96/72, Dal Mill Road, Holambi Kalan, Delhi.
This witness deposed that accused used to drink heavily and used to involve in quarrel with his wife Ms. Phoolwati(since expired) on daily basis in the night and being the neighbourer, he used to hear their voice daily.
He further deposed that during the night time of 31.10.12, quarrel took place between accused and his wife Ms. Phoolwati which continued quite long. On the next day morning at about 6.00/6.30 A.M, when he got up there was unusual clam in the house of accused.
State V/s Devender Dass ("Convicted") Page 7 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 He further deposed that since accused was crying, he peeped inside the room of accused and saw that his wife was lying on the floor and accused himself was crying. He called neighbourers and tried to open the door but door could not be opened. When door of the room was opened, accused tried to escape but he was apprehended. The blood was lying on the floor. The blood was also present on the head, face and stomach of Ms. Phoolwati. Her children were sleeping besides her.
This witness was partly resiling from his earlier statement made before police due to which he was also cross examined by Ld Additional PP on behalf of State. During said cross examination, he admitted that door of the room of accused was got forcefully opened and accused had tried to flee but he was apprehended at that time. He also admitted that accused was arrested by police at the spot and his statement was also recorded at the spot. He also admitted that vegetable peeler knife and brick which were lying in the room, were also seized by the police. He also admitted that clothes of the accused were seized by the police. He explained that he had forgotten said facts due to passage of time.
This witness also identified all the relevant exhibits i.e brick Ex P1, vegetable peeler knife Ex P2, pant and shirt of accused Ex P3 (colly.) during trial.
In his cross examination, he testified that he did not hear any voice as he was sleeping in his room and he came to know about the death of wife of accused in the morning. On specific Court question as to how he State V/s Devender Dass ("Convicted") Page 8 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 came to know that lady was sleeping or had died, he clarified that public persons present there, were claiming that said lady had died due to which he also claimed that lady had died. He denied the suggestions that he had not seen anything and he did not state anything before the police and accused was not present at his house at the time of incident as accused was away at his native village.
19. PW3 namely Sh Sukhbir Singh Mathur: This witness is the owner of house situated at K.No. 96/72, Dal Mill Road, Holambi Kalan, Delhi. He deposed that Sh. Vinay Kumar Gupta(PW1) was care taker of the said property and accused Devender Dass used to reside in the said property.
This witness has not been cross examined by accused despite grant of opportunity.
20. PW4 namely Sh. Kedar Dass: This witness is the brother in law of deceased Ms. Phoolwati. He had identified the dead body of deceased on 02.11.12 in Mortuary of BSA Hospital vide identification statement Ex PW4/A. He deposed that after postmortem examination, dead body was handed over to him vide receipt Ex PW4/B. This witness has not been cross examined by accused despite grant of opportunity.
21. PW5 namely Sh. Kaleshwar Dass: This witness is the brother of deceased Ms. Phoolwati. He had also identified the dead body of deceased in Mortuary of BSA Hospital vide identification statement Ex PW5/A. This witness has not been cross examined by accused despite State V/s Devender Dass ("Convicted") Page 9 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 grant of opportunity.
POLICE WITNESSES
22. PW6 namely SI Mukesh Kumar, PW9 HC Naresh Pal, PW14 Ct. Jitender: These three witnesses went to the place of information on receipt of copy of DD no. 8PP Ex PW1/B on 01.11.12 alongwith complainant Sh. Vinay Kumar Gupta. All these three witnesses deposed on identical lines and duly corroborated each other by testifying on the lines of prosecution story. They have deposed about the relevant proceedings including recording of statement Ex PW1/A of complainant Sh Vinay Kumar Gupta, the registration of FIR, inspection of scene of crime by mobile crime team of outer district etc., carried out at the spot.
PW6 further deposed that IO Inspector Sanjeev Chahar had prepared rough site plan of the spot at the instance of complainant Sh. Vinay Kumar Gupta, arrested the accused and recorded his disclosure statement in his presence.
PW14 further deposed that he had taken dead body of deceased Ms. Phoolwati to BSA Hospital on the instructions of IO Inspector Sanjeev Chahar and got the dead body preserved in the hospital and remained present in the hospital till postmortem examination of dead body of deceased on 02.11.12.
All these three witnesses have been cross examined on behalf of accused.
State V/s Devender Dass ("Convicted") Page 10 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014
23. PW7 namely SI Satya Narayan: This witness had collected relevant exhibits i.e plastic box containing viscera sample of deceased, pullandas containing clothes of deceased, blood of deceased on gauze piece, sample seals, etc. duly sealed with the seal of BSA hospital on 17.11.12 and handed over the same to IO Inspector Sanjeev Chahar who seized the same vide memo Ex PW7/A. He deposed that there was no tampering with the said exhibits so far as they remained in his possession.
During his cross examination, he denied the suggestion that exhibits were tampered by him during his custody.
24. PW8 namely Inspector Mahesh Kumar: This witness being draftsman, visited the place of occurrence alongwith IO Inspector Sanjeev Chahar on 16.11.12 and after taking measurements and preparing rough notes, he had prepared scaled site plan Ex PW8/A. Nothing material has come on record during cross examination.
25. PW10 namely Ct. Manish: This witness was posted as photographer in Mobile Crime Team(OD) as on 01.11.12.
He deposed that on receipt of information from PP Metro Vihar, he alongwith ASI Ajit Singh Incharge Crime Moblie Team and other staff, had visited the place of occurrence where dead body of one lady aged about 2324 years having visible cut marks on her face and abdomen, was found lying. There was blood lying below the head of the dead body and vegetable peeler knife and brick were also lying near the said dead body. He had taken State V/s Devender Dass ("Convicted") Page 11 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 the photographs of the place of occurrence from different angles. He exhibited the said photographs as Ex PW10/A1 to Ex PW10/A10 and negatives as Ex PW10/B1 to Ex PW10/B10.
During cross examination, he testified that they had reached the spot at about 8.30 A.M and remained there till 9.00 A.M. His statement was recorded by IO in PS Shahbad Dairy on 16.11.12.
26. PW11 namely ASI Ajit Singh: This witness was posted as Incharge of Mobile Crime Team(OD) on 01.11.12. He also deposed on similar lines as deposed by PW10 Ct. Manish during chief examination.
He further deposed that after carrying out inspection of the scene of crime, he had prepared inspection report dt. 01.11.12 and proved the same as Ex PW11/A. During cross examination, he deposed that he had reached the spot at about 8.30 A.M and remained there till 9.00 A.M. He admitted that his report Ex PW11/A does not bear any date of its preparation but clarified that said report contains the date of inspection carried out by him.
27. PW12 namely Ct. Ram Bhajan: This witness was working as CIPA Operator in PS Shahbad Dairy on 01.11.12. He deposed about the factum regarding typing the FIR in question in the computer installed in CIPA Room of said PS. He deposed that after typing the FIR, he had taken out the print out thereof and handed over the same to Duty Officer namely HC Mahabir Singh.
He further deposed that when he typed the FIR in question on State V/s Devender Dass ("Convicted") Page 12 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 computer, there was no break in lodging of FIR.
This witness has not been cross examined by accused despite grant of opportunity.
28. PW13 namely Ct. Amit: This witness delivered copies of FIR in question at the residence of illaqa Magistrate as well as to senior police officers at their respective offices as special messenger. Nothing material has come on record during his cross examination on behalf of accused.
29. PW15 ASI Mahabir Singh: This witness was working as Duty Officer in PS Shahbad Dairy on 01.11.12. He has deposed about the factum regarding registration of FIR in question at about 9.55 a.m. He proved computerized copy of said FIR as Ex PW15/A, certificate U/s 65B of Evidence Act issued by him regarding registration of said FIR as Ex PW12/A and his endorsement made on the rukka as Ex PW15/B. During cross examination, he testified that it had taken about 55 minutes in registering FIR through computer and relevant DD entries no. 11A and 12A were recorded regarding registration of FIR in question.
30. PW16 namely Ct. Parveen Kumar: This witness was working as DD Writer in PP Metro Vihar on 01.11.12. He deposed that at about 6.50 A.M, on 01.11.12, informant namely Sh Vijay Kumar Gupta visited PP Metro Vihar and gave information that his neighbourer namely Devender Dass had committed murder of his wife, on which he recorded the said information vide DD no. 8PP and handed over copy thereof to SI Mukesh Kumar who alongwith HC Naresh Pal and Ct. Jitender and informant went to the place of State V/s Devender Dass ("Convicted") Page 13 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 information for appropriate action. He proved the attested copy of said DD entry as Ex PW1/B. During cross examination, he explained that no separate departure entry was made in respect of departure of police officials namely SI Mukesh Kumar, HC Naresh Pal and Ct. Jitender and factum of their departure was mentioned in DD no. 8PP itself.
31. PW17 namely Ct. Deepak: This witness had deposited nine sealed pullandas besides plastic box containing viscera sample of deceased and sample seals of BSA hospital, in FSL Rohini on 28.01.13.
Nothing material has come on record during cross examination of this witness.
32. PW18 namely HC Ishwar Lal: This witness produced register nos. 19 and 21 containing relevant entries regarding deposit of sealed pullandas alongwith sample seals, etc. in Malkhana and handing over relevant sealed pullandas alongwith sample seals to Ct. Deepak for depositing them in FSL, Rohini.
This witness proved relevant entries no. 1244 dt. 01.11.2012 and 1268 dt. 17.11.2012 in register no. 19 as Ex PW18/A and Ex PW18/B respectively. He also proved copies of RC no. 9/21/13 dt. 12.11.13 as Ex PW18/C and copies of RC no. 20/21/13 and 21/21/13 both dated 28.01.13 as Ex PW18/D and Ex PW18/E respectively. Nothing material has come on record during cross examination.
33. PW20 namely Inspector Sanjeev Chahar: This witness is the State V/s Devender Dass ("Convicted") Page 14 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 IO of this case. He has deposed on the lines of case of prosecution as mentioned in the charge sheet.
He deposed about the entire investigation carried out by him at the spot and the writing work done at the spot. He deposed about the factum of lifting of exhibits from the spot, preparing their separate pullandas, sealing them with the seal of SKC and taking them into police possession. He also deposed about preparation of relevant seizure memos in respect of said exhibits. He also deposed about preparation of rough site plan Ex PW1/C at the instance of complainant Sh Vinay Kumar Gupta.
He also deposed about conducting proceedings U/s 174 Cr.PC and getting postmortem examination of dead body of deceased Ms. Phoolwati conducted at BSA hospital on 02.11.12.
He also deposed about preparation of scaled site plan by draftsman SI Mahesh Kumar on 16.11.12, getting subsequent opinion from autopsy surgeon namely Dr. Vijay Dhanker, getting the exhibits deposited in FSL, Rohini and collecting the relevant exhibits alongwith the results. He exhibited both the FSL results dt. 30.04.13 prepared by Sh. Naresh Kumar of Biology Dvision, FSL Rohini as Ex PX1 and PX2 and FSL result dt. 28.3.13 prepared by Sh. Sri Narain as Ex PX3. This witness has also identified all the relevant exhibits i.e brick Ex P1, knife Ex P2, pant and shirt of accused Ex P3(colly.), blood stained concrete pieces of earth Ex P4(colly.), concrete pieces of earth control Ex P5(colly.) and blood stained dari Ex P6, during trial.
State V/s Devender Dass ("Convicted") Page 15 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 This witness has been cross examined at length on behalf of accused.
MEDICAL EVIDENCE:
34. PW19 namely Dr. Vijay Dhanker: This witness had conducted postmortem examination of body of deceased Ms. Phoolwati on 02.11.12 in BSA hospital. He proved his detailed postmortem report dt. 02.11.12 including diagram of dead body of deceased, as Ex PW19/A. He deposed that after carrying out postmortem examination, he had opined that death of deceased Ms. Phoolwati was due to combined effect of craniocerebral damage and hemorrhagic shock consequent to multiple injuries to the body. Injury no. 1 to 17 were caused by a heavy weapon with blunt edges. The stab wounds as described under injury no. 18 and 19 have been caused by a sharp edged weapon. All injuries were ante mortem in nature and fresh at the time of death. Time since death was about 30 hours before postmortem examination. Injury no. 1 to 19 individually as well as combined together, were sufficient in the ordinary course of nature to cause death. Injury no. 1 and 2 were imminently fatal in nature.
He further deposed that on 12.01.13, Inspector Vijay Kumar had produced two sealed parcels containing brick and knife alongwith application for giving subsequent opinion with regard to injuries mentioned in PM report dt. 02.11.12 and after examining the said objects, he had given subsequent opinion Ex PW19/B. According to said subsequent opinion, entries no. 1 to 17 mentioned in PM report, could be caused by the said brick and injuries no. State V/s Devender Dass ("Convicted") Page 16 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 18 and 19 could be caused by the said knife examined by him on that day.
This witness also identified the brick Ex P1 and vegetable peeler knife Ex P2 shown to him during trial, to be the same objects which were examined by him while giving subsequent opinion Ex PW19/B. He also pointed out that both the said objects were bearing his signatures on them.
During cross examination, accused could not elicit anything contrary to the case of prosecution.
ARGUMENTS ADVANCED AND CASE LAW CITED
35. While opening the arguments, Ld Additional PP vehemently argued that all the prosecution witnesses have fully supported the case of prosecution in this case. In order to buttress the said argument, he also referred to the testimonies of prosecution witnesses more particularly that of PW1 Sh. Vinay Kumar Gupta and PW2 Sh Bharat Lal. He also referred to the medical evidence in the form of testimony of PW19 Dr. Vijay Dhanker and postmortem report Ex PW19/A. He also submitted that there is recovery of weapons of offence i.e brick Ex. P1 and vegetable peeler knife Ex P2 from the scene of crime and the injuries sustained by deceased are opined to have been caused by such types of weapons as per the subsequent opinion Ex PW19/B placed on record. Ld Additional PP, therefore, urged that accused should be convicted in respect of offence U/s 302 IPC.
36. Per contra, Ld Amicus Curiae of accused vehemently argued that prosecution has failed to establish the charge levelled against the accused beyond shadow of doubt.
State V/s Devender Dass ("Convicted") Page 17 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014
37. It goes without saying that the case of prosecution hinges upon the circumstantial evidence as there is no direct evidence even alleged by prosecution in this case. It is settled law that criminal jurisprudence begins with the presumption that unless otherwise proved the person facing the trial would be deemed to be innocent. The burden to prove the charge against the accused is on the prosecution and not on the accused. The prosecution, if fails to connect the act of the accused with the ultimate crime and where the material links constituting the evidence are found missing then the benefit of the same goes in favour of the accused. Also, in a case based on circumstantial evidence, the settled legal position is that the circumstances from which the conclusion of guilt is drawn should be fully proved 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.
38. As observed by the Apex Court in SharadBirdhichandsarda Vs. State of Maharashtra,(1984), 4 SCC 116, the following five golden principles constitute the panchsheel of the proof of a case based on circumstantial evidence:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and State V/s Devender Dass ("Convicted") Page 18 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 'must be or should be proved as was held by this Court in ShivajiSahebraoBobade Vs. State of Maharashtra, 1973 CriLJ 1783 where the following observations were made:
Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
39. The accused has been charged with offence U/s 302 IPC which reads as under:
302. Punishment for Murder : Whoever commits murder shall be punished with death, or imprisonment for State V/s Devender Dass ("Convicted") Page 19 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 life, and shall also be liable to fine.
40. In order to appreciate the evidence available on record in the light of offence charged against the accused, it would be appropriate to refer to the provision contained in Section 300 IPC which reads as under: Section 300 IPC Murder: Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly: If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly:If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly: If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
The essential ingredients of the offence under sec. 302 are as follows:
1. Death of a human being was caused;
2. Such death was caused by or in consequence of the act of the accused;
State V/s Devender Dass ("Convicted") Page 20 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014
3. Such act was done
(a) with the intention of causing death, or
(b) that the accused knew it to be likely to cause death, or
(c) that the injury was sufficient in the ordinary course of nature to cause death.
41. In the landmark judgment of Virsa Singh v. State of Punjab reported in (1958) 1 SCR 1495, the Hon'ble Supreme Court held that the following are the four steps of inquiry involved in the offence of Murder under section 300 IPC, clause thirdly:
"i. First, whether bodily injury is present;
ii. second,what is the nature of the injury;
iii. third, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended; and iv. fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature."
42. In Section 300 IPC, the definition of culpable homicide appears in an expanded form. Each of the four clauses requires that the act which causes death should be done intentionally, or with the knowledge or means of knowing that death is a natural consequence of the act. An offence cannot amount to murder unless it falls within the definition of culpable homicide; for this section merely points out the cases in which culpable homicide is murder. Putting it shortly, all acts of killing done: State V/s Devender Dass ("Convicted") Page 21 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014
i) with the intention to kill, or
ii) to inflict bodily injury likely to cause death, or
iii) with the knowledge that death must be the most probable result, are prima facie murder, while those committed with the knowledge that death will be a likely result, are culpable homicide not amounting to murder.
43. In order to bring home the guilt of accused in respect of offence of murder, the prosecution was required to prove as under: i. That the death of Phoolwati was homicidal in nature; ii. That it was the accused who had caused bodily injury to the deceased Phoolwati;
iii. That the accused had intention to cause the death of deceased Phoolwati or that the accused knew it to be likely to cause death or that the accused was well aware that the injury caused to deceased, was sufficient in the ordinary course of nature to cause death.
44. The death of deceased Phoolwati was homicidal in nature In order to prove the fact that death of deceased Phoolwati was homicidal in nature, the prosecution has led medical evidence in the form of testimony of PW19 Dr. Vijay Dhanker and has proved PM report dt. 02.11.12 as Ex PW19/A. It may be noted here that as per the case of prosecution, the death of Phoolwati had taken place somewhere during the intervening night of 31.10.12 and 01.11.12 and postmortem examination of dead body of deceased was got conducted immediately on the next day i.e on 02.11.12. State V/s Devender Dass ("Convicted") Page 22 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 After noting down the injuries in PM report supra, PW19 Dr. Vijay Dhanker gave his opinion that death of Phoolwati was due to combined effect of cranio cerebral damage and hemorrhagic shock consequent to multiple injuries to the body and the manner of death was homicidal.
Not only this, diagram of deceased Phoolwati showing various parts of her body on which injuries no. 1 to 21 had been caused, is also annexed at page no. 7 of said PM report.
Nothing has come on record during cross examination of the aforesaid witness so as to discard the testimony of PW19 or to create any doubt upon the opinion given by him in his report Ex PW19/A. In view of the discussion made herein above and the medical evidence which has come on record, there is no iota of doubt that the death of deceased Phoolwati was homicidal in nature.
45. DEATH WAS CAUSED BY THE ACCUSED The next important question which arises for consideration before the Court is as to whether prosecution has been able to establish that it was the accused who had caused the death of his wife namely Phoolwati. In order to prove the said fact, prosecution has produced two witnesses namely PW1 Sh. Vinay Kumar Gupta and PW2 Sh. Bharat Lal. Both the said witnesses were residing in the neighbourhood of accused. More importantly, PW2 Sh. Bharat Lal was the next door neighbour of the accused. These facts are undisputed as the relevant portions of the testimonies of both the said witnesses in this regard, have not been challenged by accused during their State V/s Devender Dass ("Convicted") Page 23 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 respective cross examination. Moreover, these facts have also been admitted by the accused in his statement U/s 313 Cr.PC recorded by the Court.
PW2 Sh Bharat Lal categorically deposed that accused used to drink heavily and used to indulge in quarrel with the deceased almost daily in the night and being immediate neighbourer, he (PW2) used to hear their quarrel daily. This part of testimony of PW2 has also remained unchallenged from the side of accused.
Not only this, PW2 categorically testified that at about 6.00/6.30 AM on 01.11.12 when he went near the room of accused and peeped inside the said room, he saw that accused was crying and his wife i.e deceased Phoolwati was lying on the floor. PW1 and PW2 have also been categorical in their depositions that accused did not open the door of the room despite being knocked and when the door of the said room was forcefully opened, the accused tried to escape from the said room but was over powered by them with the help of other neighbourers.
The aforesaid conduct of accused that he tried to escape from the spot after the door of his tenanted room was got opened forcefully in a situation where the dead body of his wife was lying on the floor of the room and his two small children were sleeping nearby the body of his wife, is a material fact and is an admissible piece of evidence in terms of Section 8 of Indian Evidence Act which reads as under: " 8. MOTIVE, PREPARATION AND PREVIOUS OR SUBSEQUENT CONDUCT: State V/s Devender Dass ("Convicted") Page 24 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 Any fact is relevant which shows or constitutes or preparation for any fact in issue or relevant fact.
The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto".
In AIR 1970 SC 400, Hon'ble Supreme Court has held that the conduct of an accused during the course of investigation post crime is relevant and admissible U/s 8 of the Evidence Act.
46. There is no force in the argument raised on behalf of accused that there is absence of motive on the part of accused. Ld Amicus Curiae contended that prosecution has failed to prove as to why the accused would kill his own wife due to which, the case of prosecution should be viewed with suspicion.
It is well settled law that motive is not always material in order to prove the case of prosecution.
In the matter titled as State Vs. David Rozario reported at AIR 2002 SC 3272, it has been observed as under: '' motive behind the crime is a relevant of which evidence can be given a ............ proof of motive satisfy the judicial mind about the authorship of the crime but the absence does not ipso facto result in the acquittal of State V/s Devender Dass ("Convicted") Page 25 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 accused. Motive is not sinequanun to prove the cases of the prosecution. Absence of proof only demands deeper forensic search and can not do or undo the effect of evidence if otherwise is reliable and sufficient".
In the matter titled as "State of U.P. V Babu Ram" reported at SC 2000 (11) AD 285, it was held by Hon'ble Supreme Court as under : No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental imposition of an offender towards the person whom he offered.
In the matter titled as "Dr. Tarseem Kumar Vs. Delhi Admn." reported at (1994) Supp (3) SCC 767 , it has been held as under: "Normally there is a motive behind every criminal act and that is why investigating agency as well as the Court while examining the complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. It has been repeatedly pointed out State V/s Devender Dass ("Convicted") Page 26 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 by this Court that where the case of the prosecution has been proved beyond all reasonable doubts on the basis of the materials produced before the Court the motive loses its importance. But in a case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. Of course, if each of the circumstances proved on behalf of the prosecution is accepted by the Court for purpose of recording a finding that it was the accused who committed the crime in question, even in absence of proof of a motive for commission of such a crime, the accused can be convicted. But the investigating agency as well as possible as to what was the immediate impelling motive on the part of the accused which led him to commit the crime in question."
47. The next bone of contention raised by Ld defence counsel is that the testimony of PW2 is liable to be discarded as he became hostile during chief examination and has been cross examined by Ld Public Prosecutor on behalf of State. In order to buttress the said contention, Ld defence counsel also referred to the relevant part of the testimony of said witness as available on record.
48. On the other hand, the said argument was opposed by Ld Additional PP who submitted that the testimony of PW2 Sh Bharat Lal should not be discarded and the said witness is not hostile in this case.
49. First of all, the perusal of testimony of PW2 Sh Bharat Lal would show that he cannot be termed as hostile witness as he has deposed on the lines of prosecution story. No doubt, the said witness initially did not depose State V/s Devender Dass ("Convicted") Page 27 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 about certain facts as were claimed to have been mentioned by him in his police statement U/s 161 Cr.PC but he came out with complete facts during his cross examination conducted by Ld Additional PP for State. He also explained at that stage that he had forgotten certain facts due to passage of time.
50. In the case titled as " Anil Rai Vs State of Bihar" reported at AIR 2001 SC 3173, Hon'ble Supreme Court held as under: " the mere fact that the Court gave the permission to public prosecutor to cross examine his witness by declaring him hostile does not completely effaces the evidence of such witnesses. The evidence remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence."
51. There is no substance in the argument raised by Ld Amicus Curiae that PW1 and PW2 are stock witnesses of police and they have been introduced in this case in order to support the false story as propounded in the chargesheet. She had contended that PW1 and PW2 are interested witnesses and therefore, their testimonies should not be looked into. However, both the aforesaid public witnesses i.e PW1 and PW2 have successfully withstood the test of cross examination. In other words, the accused could not elicit anything contrary to the case of prosecution through litmus test of their cross examination so as to disbelieve the testimonies of said two witnesses. Rather, the depositions made by these two public witnesses have a ring to truth. Same are found to quite natural, plain and thus, are trustworthy. State V/s Devender Dass ("Convicted") Page 28 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014
52. The next limb of argument raised by Ld defence counsel is that nobody made PCR call at 100 number in this case which is against natural conduct of any human being. She contended that in case PW1 and PW2 happened to be present at the spot then applying the test of a prudent person, they would have made PCR call at 100 number immediately after noticing the fact that dead body of wife of accused was lying inside the room. Having not done so, the presence of said two witnesses at the spot becomes doubtful.
53. At the first instance, the aforesaid argument appears to be impressive but same does not carry any force in the eyes of law. It has been duly explained by PW1 Sh. Vinay Kumar Gupta that he did not make PCR call at 100 number as the Police Post was situated nearby and that is why, he himself went there in order to inform the police. Nothing has been brought on record from the side of accused to show that police chowki was situated at quite long distance from the place of occurrence or that PW1 Sh. Vinay Kumar Gupta did not visit P.P Metro Vihar at all or that there has been any fabrication of facts or evidence on this count. Rather, the relevant portion of testimony of PW1 in this regard, has gone unchallenged and unrebutted. Moreover, the said portion of testimony of PW1 has been duly corroborated by the testimony of PW16 Ct. Parveen Kumar who was working as DD writer in PP Metro Vihar on the said date and time as also by DD no. 8 PP dt. 01.11.12 Ex PW1/B proved on record. There is no challenge to the said DD entry or to the relevant record produced before the Court during trial. Hence, there is no reason to doubt the testimony of PW1 Sh. Vinay Kumar Gupta in State V/s Devender Dass ("Convicted") Page 29 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 this regard.
54. It goes without saying that a skillful cross examiner must hear the statements in chief examination with attention, and when his turn comes, he should interrogate the witness on all material points that go against him. If omits or ignores then they may be taken as an acceptance of the truth of that part of witness evidence.
In the matter titled as "Babu Lal Vs. Caltax (India Ltd.) AIR 1967 SC 2005", it was ruled as under: "xxxxxx generally speaking, when cross examining, a party's counsel should put to each of his opponents witness in turn, so much of his case as concerns the particular witness or in which he had a share............if asks no questions, he will be taken to accept the witness account.
xxxxxx"
In the matter titled as " Carapite Vs. Derderiem, A 1961 C 359, while relying the observation of Lord Herschell, Lord Halsbury, observed as under: "Wherever an opponent declines to avail himself of the opportunity to put his essential and material case in cross examination, it must follow that he believes in the the testimony and is not disputing it at all . It is written to them that this is not merely a technical rule of evidence. State V/s Devender Dass ("Convicted") Page 30 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 It is a rule of essential justice. This is important test of checking the veracity and impeach the creditworthiness of a witness.
It was followed by Hon'ble Supreme Court in Ravinder Kumar Sharma Vs. State of Assam AIR 1999 SC 3571 and also in State of Uttar Pardesh Vs. Nahar Singh AIR 1998 SC 1328.
55. In view of the ocular evidence in the form of testimonies of PW1 namely Sh. Vinay Kumar Gupta, PW2 Sh Bharat Lal, PW6 namely SI Mukesh Kumar, PW9 namely HC Naresh Pal, PW14 namely Ct. Jitender and PW20 namely Inspector Sanjeev Chahar, it has been duly established on record that accused was present inside the tenanted room wherein dead body of his wife i.e deceased Phoolwati was found lying in pool of blood. The murder of deceased is shown to have been committed during intervening night of 31.10.12 and 01.11.12. It has been duly proved that the tenanted room of accused was bolted from inside and thus, it was the accused and accused alone who could have inflicted injuries as mentioned in PM report Ex PW19/A, upon his wife. Now, it was for the accused to explain as to how his wife Phoolwati(since expired) had sustained a number of injuries on her person during the said night.
56. This is more so when it has been shown to the Court that accused was habitual drinker and used to drink heavily and used to quarrel with his wife on daily basis. In fact, the testimony of PW2 Sh Bharat Lal would show that accused had indulged into quarrel with his wife even on the fateful night. Although, accused has claimed in his defence that he was not present in the State V/s Devender Dass ("Convicted") Page 31 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 tenanted room during the said night and he had returned back to the room at about 9.00 A.M on 01.11.12 but the said defence raised by accused could not be substantiated either during cross examination of prosecution witnesses or otherwise. The accused did not even put relevant suggestions during cross examination of relevant prosecution witnesses that he had returned back to the tenanted room at 9.00 A.M on 02.11.12. He has come out with this plea only for the first time in his statement U/s 313 Cr.PC. Even otherwise, the said plea is not substantiated from record and stands demolished by the depositions made by PW1 and PW2 during trial.
DEATH OF PHOOLWATI WAS CAUSED WITH INTENTION OF CAUSING DEATH OR HAVING KNOWLEDGE THAT ACT OF ACCUSED WAS LIKELY TO CAUSE DEATH OR INJURY WAS SUFFICIENT IN ORDINARY COUSE OF NATURE TO CAUSE DEATH
57. Ld Amicus Curiae vehemently argued that the act of accused would not fall under any of the clauses provided in Section 300 IPC as there was no premediated act on the part of accused. She referred to the allegations contained in the chargesheet in support of her contention that accused is claimed to have indulged into quarrel with his wife during the fateful night and he is alleged to have inflicted injuries on various parts of body of deceased Phoolwati out of anger and therefore, even if the entire case of prosecution is presumed to be correct, still at the most, offence U/s 304II State V/s Devender Dass ("Convicted") Page 32 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 IPC would be attracted in this case.
58. The aforesaid contention was repelled by Ld Additional PP who pointed out that accused was habitual drinker and used to fight with his wife on daily basis. He also pointed out that accused caused 21 injuries on various parts of body of his wife, in support of his submission that such type of injuries would not have been inflicted in a fit of anger as is being claimed from the side of accused. Therefore, it is a clear cut case of offence of murder punishable U/s 302 IPC.
59. In order to appreciate the aforesaid submissions made on behalf of both the sides, it would be relevant and appropriate to refer to the nature and type of injuries sustained by deceased Phoolwati, as are mentioned in PM report Ex PW19/A. The relevant portion of the said report reads as under: External Examination Injuries:(Diagrammatic representation given on page 7)
1. Laceration 8 cm x 4 cm x bone deep, vertically aligned, present over the middle part of front of forehead extending from the root of nose upwards to top of the frontal region of head. The edges are irregular and the margins are contused. There is underlying fracture of the skull bone.
2. Laceration 6 cm x 3 cm bone deep, vertically aligned, present over the right side of forehead. The edges are irregular and the margins are contused. There is underlying fracture of the skull bone.
3. Laceration 3 cm x 0.5 cm present over the lateral part of the right State V/s Devender Dass ("Convicted") Page 33 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 eyebrow.
4. Laceration 3 cm x 0.5 cm, horizontally aligned, present over the lower part of right eye. There is contusion surrounding the injury.
5. Laceration 2 cm x 0.5 cm, vertically aligned, present over the front of right ear with underlying fracture of bone.
6. Laceration 3 cm x 0.5 cm, horizontally aligned, present over the front of chin.
7. Laceration 5 cm x 3 cm x bone deep, vertically aligned, present over the left frontal region of head. The edges are irregular and the margins are contused. There is underlying fracture of the skull bone.
8. Abrasion 6 cm x 3 cm present over the left fronto temporal region of the head, below injury no. 7.
9. Laceration 1 cm x 0.5 cm present over the right nostril.
10.Laceration 2 cm x 0.5 cm present over the right side of upper lip. The injury is in line with injury no. 9.
11. Abraded contusion 8 cm x 6 cm present over the left side of face extending from the lateral part of left eyebrow upto the pinna of the left ear.
12.Laceration 1 cm x 0.5 cm over the lateral part of the left eyebrow.
13. Laceration 1 cm x 0.5 cm over the lateral part of the left eyebrow below and parallel to injury no. 12.
14.Laceration 1 cm x 0.8 cm over the front of left ear.
15.Laceration 1 cm x 0.5 cm present over the left side of the occipital State V/s Devender Dass ("Convicted") Page 34 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 region of the head above and behind the left ear.
16.Laceration 1.5 cm x 0.5 cm present over the left upper occipital region of the head.
17. Laceration 1 cm x 0.5 cm present over the right side of the occipital region of the head above and behind the right ear.
18.Incised stab wound 2.5 cm x 1 cm, semilunar shaped, present over the middle upper part of front of abdomen. The margins are contused and clean cut with serrations at places.
19.Incised stab wound 2 cm x 1 cm, semilunar shaped, present over the middle upper part of front of abdomen 0.5 cm below, lateral and parallel to injury no. 18. The margins are contused and clean cut with serrations at places.
20.Abrasion 1 cm z 0.1 cm present over the left upper part of front of abdomen below and lateral to injury no. 19.
21. Abrasion 1.5 cm x 0.2 cm present over the left lower part of front of abdomen below the lateral to the umbilicus.
INTERNAL EXAMINATION
a. Head
On reflection of the scalp, extravasation of blood was seen all over the scalp. Multiple linear fractures of the vault and base of Skull were found. Diffuse Subdural and subarachnoid hemorrhage was present all over the brain. The pia arachnoid were congested. Brain parenchyma was unremarkable.
State V/s Devender Dass ("Convicted") Page 35 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 b. Neck
No Extravasation of blood was present in the subcutaneous tissues, strap muscles of neck and within the facial planes. The Larynx and Tracheal mucosa were unremarkable. Hyoid Bone and thyroid cartilage were intact. The thyroid gland, strap muscles of neck and vessels of neck were unremarkable.
c. Chest On reflection of chest wall no extravasation of blood was present. Collar bones, Ribs and sternum were intact. Pleural cavities were unremarkable. Bilaterally the lungs were pale and collapsed. Cut section was unremarkable. Pericardium and pericardial cavity were unremarkable. Heart was unremarkable. Mycocardium, endocardium, valves and great vessels were unremarkable and grossly normal. Coronary ostia were widely patent. Significant patency was present in all segments of the coronary tree. Diaphragam was intact.
d. Abdomen Peritoneal cavity contained about 400 cc of fluid and clotted blood. The abdominal viscera was blood stained and showed normal luster.
Liver was pale. A laceration 6 cm x 1 cm present over the front of left lobe of liver apposing the external injuries no. 18 and 19. Gall bladder was unremarkable and grossly normal. Spleen was pale and grossly normal.
Stomach contained about 20 cc of brownish colored fluid. No specific food particles were identifiable. Mucosa was unremarkable. There was no State V/s Devender Dass ("Convicted") Page 36 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 characteristic smell emanating from the contents. Small intestine contained fluids and gases. Mucosa and mesentery of small intestine was unremarkable. Large intestine contained fecal matter and gases. Mucosa of large intestine was unremarkable.
Kidneys were pale and grossly normal. On cut section cortico medullary margin was identifiable. Both adrenals were unremarkable and grossly normal. Abdominal vessels were grossly normal.
e. Pelvis
Pelvic cavity was unremarkable. Pelvic bones were intact. Urinary
Bladder was empty. Walls of the bladder were grossly normal. Rectum was empty.
f. Vertebral Column
Vertebral column appeared grossly normal.
g. Track of injuries
Injury no. 18: The weapon entered the skin through injury no. 18, cut through the subsutaneous tissues, the muscles of the anterior abdominal wall, pierced the peritoneum and entered the left lobe of liver up to a total depth of about 5 cm. The general direction is forwards to backwards, below upwards and left to right.
Injury no. 19: The weapon entered the skin through injury no. 19, cut through the subcutaneous tissues, the muscles of the anterior abdominal wall, pierced the peritoneum and entered the left lobe of liver upto a total depth of about 5 cm. The general direction is forwards to State V/s Devender Dass ("Convicted") Page 37 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 backwards, below upwards and left to right.
60. In Laxminath v. State of Chhattisgarh reported at AIR 2009 (SC) 1383, Hon'ble Supreme Court has made distinction between Section 299 and 300 IPC as under:
"The academic distinction between murder and culpable homicide not amount to murder' has always vexed the Courts. The confusion is because of Courts losing sight of the true scope and meaning of the terms used by the legislative in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be keep in focus the keywords used in the various clauses of Section 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences."
61. In the case State of Andhra Pradesh vs. Rayavarapu Punnayya & Another reported at AIR 1977 SC 45, Hon'ble Supreme Court observed as under: "Whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder', on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such casual connection between the act of the accused and the death, State V/s Devender Dass ("Convicted") Page 38 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 leads to the, second stage for, considering whether that act of the accused amounts to culpable homicide as defined in s.299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of s.300, Penal Code, is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of 'murder' contained in s.300, if the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of s. 304, depending, respectively, on whether the second or the third clause of s.99 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated in s.300, the offence would still be 'culpable homicide not amounting to murder', punishable under the First Part of s.304, Penal Code".
It was further observed as under: " In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder', is 'culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, culpable homicide of this first degree. This is the gravest form of culpable homicide which is defined in s.300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is State V/s Devender Dass ("Convicted") Page 39 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 punishable under the 1st part of s. 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second Part of s.304."
62. Now adverting back to the facts of the present case. It is quite evident from the bare perusal of PM report Ex PW19/A that deceased Phoolwati had suffered as many as 21 injuries on her various parts including forehead, face, ear, head, abdomen, etc during the incident in question. Those injuries are shown to have been caused by accused with the help of brick and vegetable peeler knife. It has been opined by PW19 Dr. Vijay Kumar Dhanker that injuries no. 1 to 21 were sufficient in the ordinary course of nature, to cause death. Not only this, the subsequent opinion Ex PW19/B leaves no scope of doubt that the injuries as sustained by deceased Phoolwati, could have been caused by brick Ex P1 and knife Ex P2 as were examined by PW19 Dr. Vijay Kumar Dhanker during the course of investigation.
The aforesaid medical evidence available in the form of testimony of PW19 Dr. Vijay Kumar Dhanker and PM report Ex PW19/A and subsequent opinion Ex PW19/B have gone totally unchallenged and unrebutted from the side of accused.
63. It is pertinent to mention here that postmortem examination on body of deceased Phoolwati was conducted on 02.11.12 from 12.00 noon to 1.30 pm as mentioned in PM Report Ex PW19/A. According to said report, State V/s Devender Dass ("Convicted") Page 40 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 probable time since death of deceased Phoolwati was about 30 hours as mentioned in column no. VIII thereof. The probable time of death of deceased Phoolwati as mentioned in the PM Report, corresponds to the prosecution story which states that death of Phoolwati had taken place somewhere during early morning of 01.11.12.
64. After considering the nature of injuries sustained by deceased Phoolwati, number of injuries caused to her and the manner in which those injuries are shown to have been caused, there is no iota of doubt that accused was well within the knowledge of the fact that those injuries caused by him, were sufficient in the ordinary course of nature to cause death of his wife or were likely to cause death of his wife i.e deceased Phoolwati. Thus, Court agrees with the submission made by Ld Additional PP that it is a clear cut case of offence of murder as punishable U/s 302 IPC and the present case does not fall within any of the four exceptions to Section 300 IPC, as provided by the statute.
RECOVERY OF WEAPONS OF OFFENCE
65. In the case in hand, there has been recovery of weapons of offence i.e brick Ex P1 and vegetable peeler knife Ex P2 from the spot itself as both the said objects were lying near the dead body of deceased Phoolwati. Both the said weapons of offence are proved to have been seized by the police from the spot vide seizure memo Ex PW9/C and Ex PW9/E respectively.
PW19 Dr. Vijay Dhanker had examined both the said weapons of offence as produced before him on 12.01.13 and gave his opinion Ex PW19/B State V/s Devender Dass ("Convicted") Page 41 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 that injuries no. 1 to 17 found appearing on the body of deceased, could be caused by the brick examined by him and injuries no. 18 to 19 could be caused by the said knife examined by him. Not only this, PW19 has also identified both the said objects i.e brick Ex P1 and knife Ex P2 during trial. The entire testimony of PW19 remains unchallenged from the side of accused.
It stands duly established on record from the FSL reports dt. 30.04.13 Ex PX1 and Ex PX2 that the blood group of deceased was of 'B' group as the blood sample of deceased given on gauze cloth piece which was given exhibit no. '7' by FSL Expert, was found to be of 'B' group. The blood stains found appearing on peeler knife which was given exhibit no. '5' by FSL Expert, was also found to be of 'B' group. The said fact clearly proves that the said knife was used in the commission of offence of murder of deceased.
Thus, the recovery of aforesaid two weapons of offence from the spot itself immediately after murder of deceased as also immediately after apprehension of accused from the spot, constitutes strong circumstance in this case which points out towards the guilt of accused in this case.
RECOVERY OF BLOOD STAINED CLOTHES OF ACCUSED
66. It has been duly proved from the testimonies of PW20 Inspector Sanjeev Chahar and other relevant prosecution witnesses that wearing clothes i.e blood stained jeans pant and shirt of accused, were also taken into police possession in the morning of 01.11.12 itself. The relevant sealed pullanda/parcel containing said clothes of accused were also sent to FSL State V/s Devender Dass ("Convicted") Page 42 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 Rohini. It was given exhibit no. '6a'(i.e shirt) and '6b'(i.e jeans pant) by FSL Expert and the blood group of brown stains found appearing on jeans pant has been opined to be of 'B' group as per FSL Report Ex PX2. The blood group of brown stains appearing on some of the wearing clothes i.e shawl('8a'), blouse('8b'), Petticoat('8c') and saree ('8A1') of deceased Phoolwati have also been opined to be that of 'B' group. Likewise, the blood stains found appearing on concrete pieces('1') and dari('3') are also opined to be that of 'B' group as per the same FSL Report.
The aforesaid evidence in the form of seizure of various exhibits as described above and FSL Reports Ex PX1 and Ex PX2 are also strong circumstantial evidence pointing out to the guilt of accused in this case.
EXTRA JUDICIAL CONFESSION
67. There is another incriminating piece of evidence in the form of extra judicial confession made by accused before PW1 Sh. Vinay Kumar Gupta immediately after his apprehension from the spot. It has been categorically deposed by PW1 that on his enquiry from accused, the accused had told him that quarrel had taken place between him and his wife in the night and he had inflicted injuries upon her with the help of peeler knife and brick as a result of which she died. The said relevant portion of testimony of PW1, could not be demolished by accused during cross examination. Thus, nothing has been brought on record from the side of accused so as to cast any doubt on the veracity of the statement made by PW1 in this regard, which may call for discarding the said piece of evidence. Same therefore relevant State V/s Devender Dass ("Convicted") Page 43 of 44 FIR No. 391/12; U/s 302 IPC; P.S. Shahbad Dairy D.O.D. 28.11.2014 and admissible piece of evidence by virtue of Section 28 of Indian Evidence Act.
68. In a case titled as " Laxman Vs. State of Rajasthan" reported at (1997) 2 Crimes 125(Raj.), it has been held that an extra judicial confession, if it is voluntary truthful, reliable and beyond reproach, is an efficacious piece of evidence to establish the guilt of the accused and it is not necessary that the evidence of extra judicial confession should be corroborated on material facts.
69. It is also relevant to mention here that all the police witnesses examined during trial, have duly supported the case of prosecution on all material points and have also duly corroborated each other. They have also successfully withstood the test of cross examination and nothing contrary to the case of prosecution, could be elicited during their cross examination so as to disbelieve their testimonies or to create any reasonable doubt in the case of prosecution.
70. Applying the ratio of law laid down by Hon'ble Apex Court in the judgment SharadBirdhichandsarda supra, to the facts of the present case, Court is of the considered opinion that prosecution has been able to prove complete chain of events which unerringly points out towards the guilt of accused herein beyond shadow of doubt. Consequently, accused namely Devender Dass is hereby convicted for the offence U/s 302 IPC.
Announced in open Court today
dt. 28.11.2014 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
State V/s Devender Dass ("Convicted") Page 44 of 44