Delhi District Court
State vs . on 11 December, 2013
1
IN THE COURT OF SH. RAJNISH BHATNAGAR,
ADDL. SESSIONS JUDGE -02, NORTH DISTRICT
ROHINI COURTS : DELHI
IN RE : Sessions Case No. : 86/11
FIR No. : 256/11
P.S. : Shahabad Dairy
U/s : 302 IPC
Date of registration : 09-11-11
Reserved for Judgment on: 11-12-2013
Judgment Announced on : 11-12-2013
State
Vs.
Hari Chand S/o Sh. Jagdish
R/o Gali No. 8, House No. G-49,
Master Chowk, Near Gupta Property,
Deep Vihar, Shahabad Dairy, Delhi.
JUDGMENT
1. Briefly stated, as per the case of the prosecution on 25-07- 2011 at night on receiving DD No. 6 A dated 25-7-2011 P.S. Shahabad Dairy SI Gulshan Yadav alongwith H.C. Manoj reached at G-49 Deep Vihar, Pansoli Rohini, Delhi where dead body of a female was found lying in the plot. The dead body was identified as that of one Kusum W/o Harish Chand (accused) by Sh. Seva Ram (father of the deceased).
2. The information was sent to Dr. B.M. Mishra, SDM Narela and the parents of the deceased were produced before the SDM in his office. SDM recorded the statement of Sevaram.
3. FIR No. 256/11 was registered at PS Shahabad Dairy and investigation went underway. During the course of Sessions Case No. : 86/11 Page 1 of 22 2 investigation accused was arrested. After completion of investigation final report U/s 173 Cr.P.C. was prepared and was filed in the court of Metropolitan Magistrate who after completing all the formalities committed the case to the court of sessions for trial.
4. On 10-04-2012, a charge U/s 302 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
5. In order to prove the guilt of the accused, the prosecution examined as many as 11 witnesses.
6. PW 1 Sewa Ram is the father of the deceased Kusum. He is a material witness and I will discuss his testimony in the later part of the judgment.
7. PW 2 H.C. Anand is the MHC(M). He proved on record the relevant entries made by him in register No. 19 as Ex. PW 2/A. He also proved on record the copy of the RC No. 117/21/11 and copy of RC No. 52/21/12 as Ex. PW 2/B and Ex. PW 2/C respectively. He also proved on record the copy of the receipt with regard to the said RCs as Ex. PW 2/D and Ex. PW 2/E.
8. PW 3 Under trainee SI Ajaivir Singh brought the original general diary record dated 20-09-11 P.S. Pali, Distt. Hardoi, UP. He deposed that on that day General Diary Number 4 was made at 5:00 p.m about the arrival and departure entry in respect of Inspector Vijay Kumar, P.S. Shahabad Dairy alongwiht Ct. Gaurav and complainant Sewa Ram in the police station and thereafter went to the house of Laalu S/o Jagdish R/o Village Kirtiya Pur in the jurisdiction of their police station alongwith Ct.
Sessions Case No. : 86/11 Page 2 of 22 3Devender Yadav of PS Pali. He proved on record the copy of the same as Ex. PW 3/A.
9. PW 4 Smt. Geeta is the mother of deceased Kusum.
She is a material witness and I will discuss her testimony in the later part of the judgment.
10. PW 5 Shiv Charan is the Pradhan of three villages Kritmapur, Nalwapur and Paharpur, Distt. Hardoi U.P. He deposed that he has no knowledge about any quarrel, if any in the family of deceased Kusum. His statement was recorded. He proved on record his statement as Ex. PW 5/A.
11. PW 6 Suresh deposed that on 26-7-11, he visited BSA Hospital Mortuary, Delhi and identified the dead body of Kusum vide identification statement Ex. PW 6/A.
12. PW 7 Ct. Chattar Singh deposed that from 25-7-11 to 26-7-11, he was deputed by IO at the Mortuary of BSA Hospital to guard the dead body of deceased Kusum. He deposed that the relatives of deceased had identified the dead body of deceased in the presence of Sh. B.M. Mishra, the then SDM before postmortem. He further deposed that after the postmortem, the dead body of Kusum was handed over to her father Sewaram vide receipt Ex. PW 1/C.
13. PW 8 SI Gulshan Yadav, is the first IO of the case. He disclosed about the sequence of investigation done by him. He proved on record copy of DD No. 6-A as Ex. PW 8/A; seizure memo of the mobile phone as Ex. PW 8/B; site plan as Ex. PW 8/C; seizure memo of the earth control as Ex. PW 8/D; rukka prepared by him as Ex. PW 8/E. He deposed that after the registration of the case further investigation was carried out by Sessions Case No. : 86/11 Page 3 of 22 4 Inspector Vijay Kumar.
14. PW 9 Inspector Vijay Kumar is the second IO of the case. He also unfolded the sequence of investigation done by him. He proved on record seizure memo of two sealed parcels sealed with the seal of DR BSA Hospital Dept. of FM Delhi Govt;, two sample seals of same specimen and original postmortem report of the deceased as Ex. PW 9/A; arrest memo of accused as Ex. PW 9/B; personal search memo of accused as Ex. PW 9/C; disclosure statement of the accused as Ex. PW 9/D; seizure memo of mud stained nikkar of accused as Ex. PW 9/E; site plan of the place of recovery of nikkar as Ex. PW 9/F; seizure memo of the mobile phone bearing SIM 9716351056 as Ex. PW 9/G; pointing out memo of the place of occurrence as Ex. PW 9/H; CFSL report as Ex. PW 9/J. PW 9 deposed that the case property i.e. Viscera was sent to FSL Rohini and the report of FSL was obtained and was filed in the court and he also proved the same as Ex. PW 9/K.
15. PW 10 Ct. Amit Kumar deposed that on 25-7-11, duty officer handed over original rukka and FIR to him at about 5:40 p.m to deliver the same to IO. He handed over the same to Inspector Vijay Kumar (IO) at the spot i.e. G-49, Deep Vihar. PW 10 also joined the investigation with the IO on 27-7-11 and in his presence the accused was arrested vide arrest memo Ex. PW 9/B, his personal search was taken vide memo Ex. PW 9/C and he also made his disclosure statement Ex. PW 9/D and accused also pointed out the place of occurrence vide pointing out memo Ex. PW 9/H.
16. PW 10 further deposed that as per the disclosure Sessions Case No. : 86/11 Page 4 of 22 5 statement of accused he got recovered his nikkar (half pant)from his house and told that the said nikkar was worn by him at the time of incident. The said nikkar was sealed by the IO in pullnada with the seal of VKR and was taken into possession vide seizure memo Ex. PW 9/E. He further deposed that accused also handed over his mobile phone to the IO and the same was taken into possession vide seizure memo Ex. PW 9/G.
17. PW 10 further deposed that on 4-10-11, he received four parcels including one sample seal in sealed condition alongwith CFSL form from MHC(M) and deposited the same in FFSL Lodhi Road vide RC No. 117/21/11. After depositing the said parcel there, he handed over the copy of RC and receipt issued by CFSL to the MHC(M) on the same day. IO recorded his statement in this regard on the same day. He identified the case property.
18. PW 11 Raj Kashyap is the brother of Kusum (since deceased). He is also a material witness and I will discuss his testimony in the later part of the judgment.
19. After the closing of the prosecution evidence statement of the accused U/s 313 Cr.P.C was recorded and all the incriminating evidence was put to him. Accused denied the same and stated that he is innocent and has been falsely implicated. No evidence in defence was led by the accused.
20. I have heard Ld. Addl.PP for the State and Sh. Yogesh Pandey, Ld. Amicus Curiae for the accused and have also gone through the records of the case.
21. It is submitted by the Ld. Addl.PP for the state that on Sessions Case No. : 86/11 Page 5 of 22 6 the basis of the evidence recorded and the material available on record accused be convicted. It is further submitted by the Ld. Addl. PP for the state that it was the accused who strangulated and killed his wife Kusum. It is further submitted by the Ld. Addl. PP for the state that both were residing together and the accused doubted the character of his wife Kusum and was suspicious of his wife Kusum having affair with one Pintu contractor. It is further submitted that the dead body was found just behind the house of accused and the accused got recovered the nicker from his house which he was wearing at the time of commission of the offence.
22. On the other hand, it is submitted by Ld. Amicus Curiae for the accused that there was no dispute between the accused and the deceased. It is further urged by him that no complaint against the accused previous to the incident has been lodged by the parents of the deceased. It is further urged by him that there was no motive for the accused to kill his wife Kusum. It is further urged by him that it was Pinto contractor who killed Kusum. It is further urged by him that a mobile phone was found on the dead body of Kusum but the IO has failed to check the call details of the mobile phone which could have thrown light on the murder of Kusum.
23. The prosecution in all has examined 11 witnesses and out of these 11 witnesses PW 1 and PW 4 are the parents of the deceased and PW 5 is Shiv Charan who was examined by the prosecution in order to show that there used to be a quarrel in the family of the deceased. PW 6 is Suresh who has identified the dead body and PW 11 Raj Kashyap is the another public Sessions Case No. : 86/11 Page 6 of 22 7 witness who is the brother of the deceased. The remaining witnesses examined by the prosecution are official witnesses.
24. Now coming to the testimony of the parents and brother of the deceased. The father of the deceased has been examined as PW 1 and he has deposed that he married his daughter Kusum since deceased with the accused about 8-10 years ago and the accused remained nice to his daughter for 3-4 years but thereafter he started taking intoxicants and then there used to be frequent quarrel between his daughter and accused. He further deposed that one day during the quarrel the accused strangulated his daughter. He further deposed that few months prior to the incident accused had fallen from the roof and was treated for his injuries but the accused subsequently recovered. He further deposed that at that time the accused was working with Pinto contractor and when the accused was not in a position to work Pinto contractor used to give expenses for the family of the accused. He further deposed that some times his daughter Kusum (since deceased) used to go to Pinto contractor for expenses and sometimes Pinto contractor used to come to the house of the accused to give expenses.
25. He further deposed that accused used to quarrel with Kusum about her meeting and talking with Pinto contractor. He further deposed that accused had informed him on telephone that his daughter had gone in jungle to ease herself where some one had strangulated her. He further deposed that on hearing this he reached the house of accused and found the dead body of his daughter lying in a vacant plot at some distance from the house of the accused. He further deposed that accused informed Sessions Case No. : 86/11 Page 7 of 22 8 the police and the police was present when he reached there.
26. He further deposed that 15/20 days prior to her death, her daughter had informed him on phone that accused and his brother Lallu were planning to kill her and they told this fact to his daughter. He further deposed that his daughter had gone to his house after about 7 days of informing him about the threats given by the accused and she remained in his house for about 2 days. Thereafter she was taken by the accused and after 5-6 days his daughter was killed by the accused. He proved his statement as Ex. PW 1/A.
27. Ld. Addl. PP for the state had put some leading questions to this witness and he admitted that the dead body of his daughter was lying in the back side plot of the house of the accused. He disclosed his mobile number as 8527935448 and the mobile number of the accused as 9716351056. He further stated that on 27-04-11 his wife told him that accused had made telephonic call to her and told her that Kusum (since deceased) was not ready to go to village. He further stated that accused used to quarrel with his daughter alleging that Pintu thekedar was having illicit relationship with her. He has further stated that accused on the night of 24-07-11 informed his son on mobile number 8527935448 stating that Kusum since deceased was not ready to go to village with him and used to meet Pintu Thekedar.
28. This witness was cross examined by the Ld. Amicus Curiae for the accused and in his cross examination he stated that accused had a rod inserted in his leg and he used to walk with the help of a stick. He further stated that his daughter was Sessions Case No. : 86/11 Page 8 of 22 9 not employed with Pintu but she used to visit Pintu. He further stated that he had met his daughter 3 days prior to her death and she told him that the accused used to beat her and that accused and her brother were planning to kill her. He further stated that he had not made any complaint to the police regarding the complaint made by his daughter. He denied the suggestion that Kusum was in his house and i.e. why the accused was calling him.
29. He further stated in his cross examination that accused never showed his intention to to settle in the village with his daughter and his daughter also never wanted to settle in the village. He further stated that he reached the spot at 6 a.m after receiving information from the accused at about 5 a.m. He stated that the dead body was lying after leaving 2-3 houses from the house of accused and the mobile phone was lying on the chest of the body. He further stated that the red and white mobile phone belongs to his daughter and the same is Ex. P-3. He further stated that in his presence nothing was taken in the custody by the police from the room of the accused.
30. PW 4 is Geeta who is the mother of the deceased. She has deposed that 4-5 months prior to the incident the accused had met with an accident and he used to remain in the house. She further deposed that the daily expenses were borne by the company and Pintu Thekedar used to visit the house of her daughter to hand over the money to her and sometimes her daughter used to go to him for collection of the money. She further deposed that accused Hari Chand was having objection on her visits and used to quarrel with her daughter and was Sessions Case No. : 86/11 Page 9 of 22 10 having suspicion on her character.
31. She further deposed that on the day of the incident accused telephonically informed that Kusum was missing and when in the morning they reached the house of Hari Chand they found the dead body of Kusum lying in the vacant plot behind her house and forth was coming out from her mouth. She deposed that her daughter had telepohonically informed on the mobile of her son about the quarrel and harassment given to her by the accused.
32. This witness was declared hostile and cross examined by the Ld. Addl. PP for the State and in her cross examination she denied the suggestion that when they reached at the spot accused Hari Chand told them that a quarrel had taken place between him and Kusum as she had gone to the house of Pintu Thekdar. She denied the suggestion that her son Ramu had told her that accused on the night of 24-7-11 telephonically informed him 2-3 times that Kusum did not agree to accompany him to native village and used to meet Pintu Thekedar. She denied having the knowledge of the mobile number of accused and mobile number of her son.
33. This witness was cross examined by the Ld defence counsel and in her cross examination she stated that the accused had telephoned her son 4-5 times and told him about the missing of Kusum. She also stated in her cross examination that in her presence or to her knowledge no physical violence took place between accused and Kusum. She further stated that they had reached the house of accused in the morning at about 6 / 7 a.m. She further stated that the accused reached the spot at the same Sessions Case No. : 86/11 Page 10 of 22 11 time when they reached and at that time the accused was walking with a stick. She further stated that her daughter was having a mobile phone and she used to phone the family members but she never complained about the accused.
34. PW 5 is Shiv Sharan and he stated that to his knowledge no quarrel was there in the family of Kusum.
35. PW 11 is Raj Kashyap who is the brother of the deceased. He deposed that accused received injuries in an accident and after that he was unable to work. He further deposed that on humanitarian grounds one Pinto Thekedar used to help accused financially and he used to visit the house of his sister occasionally and also used to provide house hold articles as per the need of the family of the accused.
36. He further deposed that accused used to make phone call to him about the illicit relationship between his sister and Pintu Thekedar. He further deposed that on the date of the incident accused had informed that his sister had been killed by Pintu Thekedar and thereafter they all went to the house of accused. He further stated that the dead body of Kusum was lying in the bushes in the back side of the house of the accused and one mobile phone was lying on her dead body.
37. The Ld. Addl. PP for the state had asked a leading question from the witness and the witness replied that in the intervening night of 24/25-7-2011 accused had made 2-3 calls from his mobile number 8527935448 and at that time accused had informed him that he was fed up with the activities of Kusum and he exhorted "Iska Kuchh Karo".
38. This witness was cross examined and in his cross Sessions Case No. : 86/11 Page 11 of 22 12 examination he stated that he had met his sister two weeks prior to the incident. He admitted that the accused had called him thrice in the intervening night of 24/25 July, 2011. He stated that he had not made any complaint with the police. He further stated that they had reached the house of accused at about 7/ 7:30 a.m and accused Hari Chand was present at his house.
39. According to the prosecution the motive behind the murder was illicit relation between the accused and Pintu Thekedar but he has not been made a witness for the reasons best known to the IO. There is no evidence except the disclosure statement of the accused that Pintu used to supply house hold articles to the family of the accused. There is no evidence to show that the deceased and Pintu Thekedar were on visiting terms or they used to talk with each other on mobile phone. The mother of the deceased had admitted that the deceased was having a mobile with her at the time of her death. It is the case of the prosecution that a mobile phone with SIM card was found near the dead body. But the IO of this case has not checked the call details of the mobile phone. In case the said record would have been checked then the call record could have been instrumental in unraveling the mystery behind the murder of Kusum and also her relations if any with Pintu Thekedar. If the call details would have been obtained by the IO, it would have thrown light on this case but it has not been done for the reason best known to the IO. So in these circumstances, the prosecution has failed to prove the motive behind the murder.
40. PW 11 who is the brother of the deceased has Sessions Case No. : 86/11 Page 12 of 22 13 deposed that accused had phoned him twice and thrice and even said that "Iska Kuchh Karo" but this fact has not been told by the other witnesses who were parents of the deceased. PW 11 has also stated in his cross examination that accused told him that Kusum had been killed by Pintu Thekedar but PW 1 and PW 4 who are the parents of the deceased did not say so in their testimonies and it is highly improbable that if such information would have been given by the accused then it was highly improbable for PW 11 not to disclose this vital information to his parents who then would have rushed to the spot.
41. PW 4 mother of the deceased was declared hostile and she has even stated that no quarrel took place between the accused and the deceased in her presence and even she was not having any knowledge of any physical violence between the accused and Kusum. She has even stated that Kusum used to telephone her family members and she never complained about the accused.
42. According to PW 1 his daughter Kusum since deceased used to deter him from drinking and taking drugs and one day during quarrel the accused strangulated his daughter. He has not talked about the illicit relations between Pintu Thekedar and Kusum and he even went on to depose that he was not aware if the accused suspected his daughter.
43. This witness has deposed that 15-20 days prior to the death of Kusum she had informed him on telephone that accused and his brother Lallu were planning to kill her and they had told this to his daughter but again no report was lodged by this witness with the police. He has not disclosed this fact to his Sessions Case No. : 86/11 Page 13 of 22 14 wife and his son and rather surprisingly he had not confronted accused and his brother Lallu in connection with that threat.
44. This witness has stated in his examination in chief that when he reached the spot and asked the accused how the death happened then the accused told him that a quarrel had taken place between him and his daughter Kusum as she had gone to the house of Pintu but nothing of this sort has been stated by PW 4 who is the mother of the deceased and PW 11 brother of the deceased. PW 5 has also denied the quarrel in the family of the deceased.
45. So in view of the discussions hereinabove, it could not be proved that there used to be a frequent quarrel between the accused and the deceased on some point or the other.
46. As per the story of the prosecution, the dead body was found lying in the plot at the back side of the house of the accused. At that time a mobile phone was lying on the body of Kusum since deceased which was taken into possession by the IO but as already discussed hereinabvoe, for the reasons best known to him the call records of this mobile phone were not got checked by the IO.
47. According to the prosecution the accused got recovered a nicker smeared with mud which he was wearing while grappling with his wife Kusum. This nicker was got recovered by the accused from his house and the nicker was mud stained and was lying on the rope.
48. First of all there is nothing on record to suggest that there was struggle at the time of the incident. It has come in the evidence of the witness that the accused had suffered a Sessions Case No. : 86/11 Page 14 of 22 15 major accident and the mother of the deceased had even gone on to state that accused met them at the spot and was walking with a stick. According to the prosecution the death has taken place because of strangulation which is evident from the postmortem report.
49. One cannot loose site of the fact that when somebody is being strangulated then definitely there has to be a struggle between the victim and the perpetrator of the crime unless and until the victim has been drugged. But in the instant case the victim was not drugged and she was a full grown lady. Now when she was being strangulated then definitely she must have put in a great resistance and raised alarm in order to save herself. As per the statement of the IO grappling had taken place at the spot but there is nothing on record to show that there was a struggle or grappling at the spot which further creates doubt about the case of the prosecution. The house of the accused is situated at a congested place and is surrounded by the other house also and if any struggle or grappling had taken place, the deceased must have cried and after hearing her cries the neighbours and other people of the locality would have gathered there but this is not the case of the prosecution and no public witness was joined by the IO to prove this fact.
50. According to the prosecution, the nicker of the accused was smeared with mud which matched the mud lying at the spot as per the FSL report. Now if the accused was wearing the nicker at the time of the incident and the dead body was lying in the bushes as deposed by PW 11, so definitely the accused must have received some injuries on his legs. But as per the Sessions Case No. : 86/11 Page 15 of 22 16 MLC of the accused there is no fresh injury on any part of the body of the accused. Moreover, the matching of the mud on the nicker of the accused with the mud lying at the spot is not sufficient to prove the guilt of the accused when other circumstances of the case are not pointing towards the guilt of the accused and the contradictions in the testimonies of the prosecution witnesses are also creating a doubt in the story put fourth by the prosecution.
51. According to the father of the deceased his daughter Kusum had told him that accused was planning to kill her with the help of his brother Lallu but his father kept quiet on this aspect and even the IO has stated in his examination in chief that on 19-09-11 he had gone to village Katiyapur, UP to verify about Lallu, the co-accused and on inquiry he came to know that accused Lallu was present at his house but thereafter he was not arrested in this case.
52. To sum up, the call records of the mobile phone of the deceased were not got checked by the IO; Pintu Thekedar has not been examined by the prosecution; the prosecution has even failed to prove the motive for the murder of the deceased and there are also contradictions in the testimonies of the public witnesses which are material contradictions and go to the root of the case. In these circumstances, I am of the opinion that the prosecution has failed to prove its case beyond reasonable doubt against the accused. The accused is, therefore, acquitted. File be consigned to Record Room.
(Announced in the open Court on 11-12-2013.) Sessions Case No. : 86/11 Page 16 of 22 17 (RAJNISH BHATNAGAR) ASJ-02, NORTH DISTRICT ROHINI COURTS : DELHI Sessions Case No. : 86/11 Page 17 of 22