Delhi District Court
State vs Bacha Ram on 21 December, 2010
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IN THE COURT OF S.K. SARVARIA DISTRICT JUDGEVIII &
INCHARGE ADDITIONAL SESSIONS JUDGE:
ROHINI COURTS DELHI
SESSIONS CASE No. 122/2010
State Vs Bacha Ram
S/o Late Sh. Harpal Singh
R/o VillageRajepur, P.S: Amarpur
P.O Arjabpur, Navabad, Teh. Kasganj
Distt. Etta, U.P.
Temp. H.No. 18, LExtension,
Rama Park Road, Mohan Garden,
Uttam Nagar, New Delhi.
FIR No. 904/2003
Police Station Uttam Nagar
Under Sections 498A/304B/302 IPC.
Date of Institution: 22.12.2003
Date when arguments 14.12.2010
were heard
Date of Judgment 18.12.2010
State Vs. Bacha Ram
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JUDGMENT
1. The SHO of P.S: Uttam Nagar has challaned the accused persons to face trial for the offences under Sections 498A/304B/302 IPC. The Ld Metropolitan Magistrate after supplying the copies of documents of the prosecution case to the accused by complying with provisions of Section 207 Cr.P.C has committed the case to the court of Sessions as provided under Section 209 Cr.P.C.
BRIEF FACTS OF THE CASE
2. The prosecution case is that on receipt of DD No.4A dated 30.09.2003 SI Bega Ram along with staff went to the spot at H.No. 18, LExtension, Rama Park Road, Mohan Garden, Uttam Nagar and came to know, on inquiry, that the husband of Mrs Kusum had run away after murdering her. Inspector R.Chandran Additional SHO also reached the spot and found Mrs Kusum on the cot in dead condition and considerable blood had come out from her nose and mouth. On inquiry, the police came to know that Kusum was married to Bacha Ram on 20.06.2002 as per Hindu rites and customs but their family life was in tension. SDM Patel Nagar was called at the spot who examined the spot. Crime team also came at the spot. As per directions of SDM, dead body was photographed by crime team who also examined the spot. Thereafter, State Vs. Bacha Ram 3 inquest proceedings under Section 176 Cr.P.C were conducted.
One Mrs Krishna @ Babbi was also present there whose statement was recorded by SDM Patel Nagar in which she has stated, in brief, that her elder sister Kusum was married to Bacha Ram on 20th June last year as per Hindu rites and customs. As she knew Bacha Ram, the marriage was got arranged by her. After a few days of the marriage, she came to know that her sister was not being treated properly by Bacha Ram who after one month of the marriage started demanding dowry like colour T.V, scooter etc. On account of dowry demands, he used to beat Kusum daily. In the month of August, accused sent Kusum to her parental house and in her absence, sent all the dowry articles to his village in Kasganj Eita U.P. On 29.09.2003, at about 5.00 p.m, her sister Kusum and Bacha Ram had tea in her (complainant Krishna) house. Then, in the morning of 30.09.2003 at about 8.30 a.m the daughter Prem Lata of landlord came to her house and informed her that Kusum was neither replying nor has got up. To inquire into the matter, she (complainant Krishna) went to her house and found Kusum covered with the blanket on the cot (charpai). On removing the blanket, she saw the blood has spread on her mouth and after touching her, she came to know that Kusum was dead. She raised hue and cry so the neighbourers also collected there. On removal of the blanket, she also noticed one letter on a small piece of paper near the feet of Kusum. Kusum was having State Vs. Bacha Ram 4 injuries on her throat and her bangles were broken. There were injuries on her hand. The complainant also stated that she believed that her sister Kusum was murdered by her husband Bacha Ram on account of demand of dowry.
On the statement of complainant Krishna @ Babbi the Additional SHO made endorsement and sent the rukka through constable Surender Kumar to the police station, on the basis of which FIR under Sections 498A/304B/302 IPC was registered. During investigation, the site plan was prepared. The letter was seized from near the feet of the victim, the blood stained pillow, bed sheet and chunni and broken bangles were seized vide different memos, crime team report was obtained, observation memo was prepared, statement of witnesses under Section 161 Cr.P.C were recorded, dead body was get postmortemed at District hospital, blood stained hammer was recovered and sent for opinion to the doctor who gave opinion that the injury No.1 on the neck could be possible by this weapon. The accused suspected that his wife had illicit relations with one Ram Parkash so he was annoyed with her. So, after his arrest on 02.10.2003 he gave disclosure statement dEitahiling this fact and also stating that he has written the letter which was found near feet of the victim disclosing the true facts which were in his heart, after murdering his wife. Then, he ran away to Eitah U.P. During investigation, the exhibits were sent to FSL Malviya State Vs. Bacha Ram 5 Nagar. The pocket diary of accused being admitted document/writing along with the letter written by accused which was recovered from the spot were sent to Chandigarh for handwriting expert's opinion. The scaled map was got prepared from draftsman and on completion of investigation, the accused was challaned, as referred before. CHARGE AND PLEA OF ACCUSED:
3. The prima facie case for the offences under Sections 302 IPC alternatively under Sections 304B/498A IPC was found to be made out against accused, so the accused was charged accordingly on 02.06.2004 to which he pleaded not guilty and claimed trial. PROSECUTION EVIDENCE
4. In support of its case the prosecution has examined 33 witnesses in all. To have access to the prosecution evidence, it would be appropriate to give a short resume of the statement of prosecution witnesses recorded in the court.
PW1 is HC Mahaveer Singh who was working as Duty Officer at P.S Uttam Nagar on 30.09.2003. He stated that at about 9.10 a.m, he received a call regarding murder at LExtn. Rama Park Road, Near Neel Kamal Electronics, Mohan Garden, Delhi and he recorded DD No.4A in this regard, which is proved as Ex PW 1/A. Thereafter, at about State Vs. Bacha Ram 6 2.15 p.m, he received rukka which was sent by Addl. SHO R. Ramchandran through Ct. Surinder Kurup, on the basis of which he recorded FIR which is proved as Ex PW 1/B. This witness further deposed that kayami regarding registration of FIR was also recorded by him as DD No.12A.
5. PW2 is Smt. Kanta Devi, mother of deceased Kusum. She deposed that her daughter Kusum was married with the accused Bacharam about one year and four months prior to her death. After the marriage, he had started harassing her daughter for bringing more dowry. Accused used to tell her that they had not given fridge, colour TV, double bed, jewellery items and other articles in dowry. He used to demand the same from her daughter. Her daughter Kusum disclosed her about the demands made by the accused about one week prior to her death when she had visited the house. The witness could not name the month but she stated that on 30th of the month, last year, she was informed that her daughter had been killed. Her statement was recorded which is proved as Ex PW 2/A. She also identified the dead body of her daughter in the hospital vide her statement Ex PW 2/B
6. PW3 is Smt. Krishna, sister of deceased Kusum. She deposed that her sister Kusum was married with accused Bacharam on State Vs. Bacha Ram 7 20.06.2002. The treatment given to her sister was worst after about one month of the marriage. The accused started beating her sister over small issues. He also started making demand for colour T.V, scooter etc and used to beat her on her refusal. In August 2002, accused after sending her sister to her parents place, lifted the dowry articles which were given in the marriage and shifted them at 'Aita', his village. This witness further stated that on 29.09.2003, accused visited her house at 5.00 p.m and on 30.09.2003, she was informed at about 8.30 a.m by Prem Lata that Kusum was not responding. After hearing the same, she immediately proceeded to the house of Kusum, where she saw that Kusum was covered with blanket, blood was splattered and Kusum was lying dead. She raised an alarm, on which persons from the neighbourhood came and some one had informed the police. After removal of blanket, a letter written on a piece of paper was found near the feet of her sister. The bangles of her sister was broken and there appeared to be some injury mark. Accused Bacharam was not present at the spot. This witness identified her signatures on statement which is proved as Ex PW 3/A. A hammer was also recovered from the spot by the police which was taken into possession after converting it into a sealed cloth pullanda and seized vide memo Ex PW 3/B which bears her signatures at point A. The sketch of hammer was also prepared which is proved as Ex PW 3/C bearing her signatures at point A. The police had State Vs. Bacha Ram 8 also seized pillow, blood smeared bed sheet and chunni (dupatta) of the deceased vide seizure memo Ex PW 3/D bearing her signatures at point A. The police had also taken into possession a diary from plastic envelope kept in a room belonging to accused Bacharam vide seizure memo Ex PW 3/E which bears her signatures at point A. The broken bangles, blanket and letter were also taken into possession by the police vide seizure memos Ex PW 3/F, Ex PW 3/G and Ex PW 3/H. PW3 further deposed that prior to the death of the deceased owing to the differences, an effort was made to patch up to issue between her sister and the accused. She identified the dead body of her sister vide memo Ex PW 3/I. She also identified the letter found on the cot of the deceased as Ex P1, the diary of accused which was seized by the police vide memo Ex PW 3/E as Ex P2, Pillow as Ex P3, bed sheet as Ex P4, dupatta belonging to her sister as Ex P5, hammer as Ex P6. The belongings of her sister i.e blouse, brazier, peticoat, nose pin, broken glass bangles along with threat, a pair of jhumkas, two bichuas and one ring have also been proved by this witness as Ex P7 to Ex P14. This witness has also identified the blanket lying on the dead body of deceased Kusum as Ex P15.
7. PW4 is Balraj who stated that accused Bacharam was residing in Kumar Colony and was doing the job of Kabari. His sisterin State Vs. Bacha Ram 9 law (wife's sister) Kusum was married with accused Bacharam. There used to be frequent quarrels between Kusum and accused Bacharam, as Kusum used to talk to Ram Prakash who used to live along with Bacharam. Later on, Ram Parkash left the premises wherein he was residing along with accused Bacharam. Once, Kusum was present at their house and at that time Ram Prakash had also visited their house. Accused Bacharam reached there and started abusing Kusum. Thereafter, accused Bacharam left the spot and subsequently one day, he came to know that Kusum had been killed. As the witness was resiling from his previous statement, he was crossexamined by Ld Additional Public Prosecutor but denied the suggestions put on behalf of State to him.
8. PW5 is HC Babu Lal who joined investigation with the investigating officer R.Chandran on 02.10.2003. He stated that accused was found at H.No. 206. He was taken to the police station and made disclosure statement Ex PW 5/A. He also pointed out the place of incident vide memo Ex PW 5/B where he had committed the incident. On the pointing out of accused, a diary was recovered from his room at L18, LExtn, Rana Pratap Bagh which was taken into possession vide memo Ex PW 3/E. The witness identified this pocket diary as Ex P2. He also stated that the personal search of accused was conducted vide memo Ex PW 5/C and the arrest memo of accused is Ex PW 5/D. State Vs. Bacha Ram 10
9. PW6 is HC Jagdish Singh who was posted in the PCR of West Zone on 30.09.2003 and was on duty from 8.00 a.m to 8.00 p.m. He received call about murder in a house situated at L Extension Rama Park near Neel Kamal Electronic Shop. He reached there and saw dead body of a lady lying over a cot with blood coming out of her mouth and nostril. He has also brought the call book of his PCR.
10. PW7 is retired Inspector R. Chandran who investigated the case and was posted as Additional SHO at P.S: Uttam Nagar on 30.09.2003. He stated about the steps taken by him during investigation of the case. He stated that he along with Ct Surender reached H.No. 18, LExtension, Rama Park Road, Mohan Garden, Uttam Nagar, Delhi after DD no. 4A was handed over to him. They went inside the said house and found dead body of a female lying on a cot in a room inside the said house. The blood was oozing from the mouth and nose of the dead body and he noticed some injuries on the neck of the dead body. The land lord was present and he identified the dead body to be of Kusum W/o Bacha Ram who was residing as a tenant in the said house. On verification, PW7 came to know that Kusum was married with accused on 20.02.2002 and since the death was unnatural, and it looked to be dowry death case, he informed the concerned SDM, Patel Nagar. Crime team State Vs. Bacha Ram 11 and a photographer was also summoned at the spot. The SDM reached at the spot and recorded the statement of Smt. Krishna which is Ex PW 3/A. The dead body was also inspected by the SDM and he completed the inquest proceedings. After making a noting on the statement of Smt Krishan, the SDM handed over her statement to him and made endorsement Ex PW 7/A. He also stated that he sent the rukka to the P.S through Ct, Surender for registration of FIR. After registration of the case, Ct Surender came back at the spot and handed over the carbon copy of FIR to him. One written paper Ex P1 was found at the spot which was seized vide memo Ex PW 3/A. One iron hammer having a handle of iron was also found in one corner of the room with blood stains on it. The sketch of the hammer Ex PW 3/C was prepared. The hammer was converted into pullanda and sealed with the seal of AKS and seized vide memo Ex PW 3/B. The witness identified the hammer as Ex P6.
11. The witness stated that the dead body was kept in the vehicle for postmortem. He seized one pillow, one chadar, one chunni and all articles were having blood stains which were converted into a pullanda and sealed with the seal of AKS and seized vide memo Ex P W3/D. The witness stated that he moved an application Ex PW 7/C before doctor for seeking his opinion. He also stated that the dead body was having a blanket on it which was seized by him vide memo Ex PW State Vs. Bacha Ram 12 3/G. He also prepared observation memo Ex PW 7/D. After postmortem, the doctor handed over to him three sealed parcels sealed with the seal of LKB along with sample seal which were seized by him vide memo Ex PW 7/E and he deposited all the sealed parcels in Malkhana. The witness also stated that they conducted raid at the residence of maternal aunt of accused who was arrested there. The arrest memo is Ex PW 5/B and his personal search memo is Ex PW 5/C. Accused was brought to the P.S and during investigation he made disclosure statement Ex PW 5/D. Accused led the police party at H.No. 18, LExtension, Rama Park road, Mohan Garden, Uttam Nagar and on his pointing out one pocket diary was recovered which was seized vide memo Ex PW 3/E. The accused also produced railway ticket and bus ticket which are Ex PX. Special writing of accused on 11 sheets Ex PZ/111 was obtained. The scaled site plan was got prepared through draftsmen by calling him at the spot. The result of FSL Ex PW 7/F and FSL report Ex PW 7/G were obtained. The statements of witnesses were recorded and on completion of investigation, the challan was prepared.
12. PW8 is Sh Rajender Kumar, the brother of deceased Kusum. He stated that the deceased was married with accused Bacha Ram on 20.03.2002 as per Hindu rites. After two months of the marriage, accused started harassing and beating his sister and he used to State Vs. Bacha Ram 13 demand cash amount from his sister. Whenever his sister visited their house, she told these facts. Once or twice the accused also demanded the cash amount from him but he refused to fulfill the said demand. The accused also raised a demand of scooter, gold chain and TV. On 30.09.2003, his younger sister at about 10/11 a.m told him that Bacha Ram had murdered Kusum. He reached the spot and found dead body of his sister. The police officials were present there conducting their investigation. The witness also stated that before one week, during the Ram Leela days, accused demanded cash amount from his mother as dowry.
13. PW9 is Sh Ghanshyam is landlord who stated that in the month of September 2003, he rented one room to the accused who was living in it along with his wife. In the month of October, at about 9.00 a.m he came to know that wife of accused was lying dead in the house. Accused was not present there. He noticed blood on the face of wife of accused.
14. PW10 is Sh. Lalit Kumar, the brother of the deceased. He corroborated with the statement of his brother PW8 Rajender Kumar. He stated that after some time of marriage, accused started quarreling with his sister and he used to beat her. His sister Kusum demanded a sum State Vs. Bacha Ram 14 of Rs 20/25,000/ from them because the said amount was demanded by accused for opening a kabari shop. The witness stated that they refused to pay the said sum as they were not in a position to pay it. Accused also demanded a golden chain for himself and this fact was told to them by their sister. His sister also told them that the accused was harassing her and demanded a scooter. Whenever he used to return from the work and meet his sister, he found his sister weeping and she used to tell him that accused was harassing her for demanding scooter, cash amount and chain but he used to pacify his sister. The witness also stated that his youngest sister came on 30.09.2003 and informed about murder of Kusum by her husband. He identified the dead body of his sister in mortuary of DDU hospital and the police recorded his statement Ex PW 10/A regarding identification of the dead body.
15. PW11 is SI Kartar Singh who has partly investigated the case and has recorded statement of Sushil Kumar U/s 161 Cr.P.C and handed over the police file to Inspector Ram Chander.
16. PW12 is Smt. Kamla wife of Sh Ghanshyam. This witness stated that she knows accused Bacharam as he was living with his wife in her house in the year 2003. Accused used to quarrel frequently with his wife. She along with her husband used to iron the clothes. In September State Vs. Bacha Ram 15 police officials visited their house and they saw that wife of accused was lying dead. As the witness was resiling from her previous statement, she was crossexamined by Ld Additional Public Prosecutor but she denied the suggestions put on behalf of State to her.
17. PW13 is Prem Lata. She deposed that accused along with his wife was residing as a tenant in one room in their house. She did not see any quarrel between accused and his wife. As the witness was resiling from his previous statement, she was crossexamined by Ld Additional Public Prosecutor but denied the suggestion put on behalf of State to her that on 29.09.2003 at about 9.00 p.m she had seen the accused along with his wife in the tenanted premises and heard quarrel between them. However, she admitted the other suggestions and stated that on 30.09.2003 at about 8.00 p.m Kusum had not come out of the room, so she reached at the residence of Krishna, sister of Kusum and narrated the whole facts to her. Krishna accompanied her to her house and went inside the room of the accused where they saw wife of accused lying dead. She noticed blood on the face of Kusum wife of accused. She had seen accused and his wife on 29.09.2003 at 8.00/9.00 p.m in their room but had not seen any quarrel at that time. She further stated that she had not seen the accused in his room on 30.09.2003 when she along with Krishna reached there and saw the dead body of his wife lying.
State Vs. Bacha Ram 16
18. PW14 is Dr. Virender Kumar. He deposed that in the year 2003, he was residing at H.No. 22/23, Central Market, Rama Park Road, Mohan Garden, Uttam Nagar, Delhi and H.No. L18, Extension falls behind his previous residence. He further stated that on 30.09.2003 he was called at H.No. L18, Extension where he found one lady lying on a bed. He checked her and found her dead. He informed the PCR immediately.
19. PW15 is SI Khemendra Pal Singh who deposed that on 30.09.2003, at the directions of SHO, he had gone to the native village of accused Bacharam but he was not traceable at his native village. So, he returned back and reported to the SHO.
20. PW16 is Constable Jai Prakash. He deposed that on 01.10.2003 he was posted at P.S Uttam Nagar and in the intervening night of 1/2.10.2003, he along with Inspector Ram Chander, HC Babu Ram, SI Bega Ram was busy in the investigation of the present case. They reached at H.No. 206, Gud Mandi, Rana Pratap Bagh where Ram Niwas and accused Bacharam were present. Accused Bacharam was identified by Ram Niwas and was apprehended by them. Accused made a disclosure statement. One pocket diary was recovered on the pointing out State Vs. Bacha Ram 17 of accused Bacharam which was seized vide seizure memo. The said diary is proved as Ex P2. Accused was arrested and his personal search was conducted.
21. PW17 is Constable Surinder Kumar. He deposed that on 30.09.2003, he was posted at P.S Uttam Nagar and on receipt of DD No. 4A, he along with SI Bega Ram reached at house no. 18, LExtension, Rama Park Road, Mohan Garden, Uttam Nagar. They went inside the said house and found a dead body of female Kusum lying on a cot. Blood was found near the mouth and ears of the dead body. After making further inquiry, they came to know that she has been murdered by her husband who after committing the murder ran away from the spot. Area SDM and crime team also reached at the spot. Crime team officials inspected the spot, took the photographs of the spot. SDM also conducted inquest proceedings and the dead body was taken by him to mortuary DDU hospital. The same was deposited in the mortuary with a request to preserve the dead body. This witness further stated that on 01.10.2003, SDM also reached at mortuary along with other police officials. After completing the formalities, the doctor conducted postmortem on the dead body of Kusum and after postmortem, doctor handed over the sealed parcels to the IO.
State Vs. Bacha Ram 18
22. PW18 is Smt. Vimla Devi who stated that accused Bacharam is son of his real sister. He was married with Kusum in the year 2002 and was living at Uttam Nagar, Delhi along with his wife. Accused used to come to meet her. In September 2003, she was residing at H.No. 206, Rajpura, Gur Mandi, Rana Pratap Bagh, Delhi. Police officials visited her residence and made inquiry from her about the whereabouts of accused Bacharam. She further stated that police officials also directed her that as and when Bacha Ram arrives at her house, she should inform the police immediately. Later on, she came to know that accused Bacharam had been apprehended from a tea shop nearby her house. Accused had not reached at her residence and did not inform anything to her as to how his wife expired. As the witness was resiling from her previous statement, she was crossexamined by Ld Additional Public Prosecutor but denied the suggestions put on behalf of State to him.
23. PW19 is SI Manoj Kumar. He deposed that on 30.09.2003, he was working as Incharge Crime Team, West District having their office at P.S Kirti Nagar. On that day, on receipt of information/request of IO, he reached at H.No. 18, LExtension, Rama Park Road, Mohan Garden, Uttam Nagar at 11.00 a.m and remained there till 12.30 p.m. The dead body of deceased was having injury mark i.e strangulation on State Vs. Bacha Ram 19 neck, wound mark on joint of neck and wound mark on left forearm. He inspected the spot. Photographer HC Surinder Singh who was with his crime team took the photographs. He proved his report as Ex PW 19/A.
24. PW20 is Sh. Rajak Khan who was doing the business of Kabari for the last 15 years in Delhi. He stated that in the year 2002, accused Bacha Ram present in the court had worked with him as a Kabari. He was residing separately in a rented room. After about 5/6 months accused left him and started doing work with Afsar Ali as Kabari. In the year 2003, police officials came to his house and disclosed about the death of wife of accused namely Kusum. Thereafter, he visited police station in October 2003 where police officials showed him one letter and after seeing the same, he told the police that the said letter was in the handwriting of Bacha Ram. The said letter bearing stamp of FSL, Government Examiner, Questioned document is proved as Ex P1.
25. PW21 is Afsar Ali who stated that he was doing the business of Kabari since 2003. He was called by the police officials in the police station for identification of handwriting on some documents but unable to identify the same. He further deposed that he cannot identify handwriting of accused Bacha Ram. As the witness was resiling from his previous statement, he was crossexamined by Ld Additional State Vs. Bacha Ram 20 Public Prosecutor but has denied the suggestions put on behalf of State to him.
26. PW22 is Ms. Chitra. She stated that Pavitra Parivar Family Counseling Center is run by an NGO Vikasini which is supported by Central Social Welfare Board. They are dealing in counseling of matrimonial, domestic violence act disputes. On 22.07.2003, one Kusum wife of Bacha Ram came and lodged a complaint against her husband Bacha Ram stating that he used to beat her and often goes to his village leaving behind her. The complaint was registered in the counseling center. On receipt of complaint, a letter was sent to Bacha Ram calling him at the counseling center, upon which he came and counseling was done with both Kusum and Bacha Ram. Bacha Ram admitted his mistake and assured not to commit the mistake in future. He also gave statement in writing in his own hand to said effect and took Kusum along with him.
It is further stated by this witness that on 16.09.2003, Kusum again came at the counseling center and told that Bacha Ram was insisting to take her to village but she did not want to go to village with him. However, she told that she was living happily with Bacha Ram. On the night of 30.09.2003, the brother of Kusum came and informed her (PW22) that Bacha Ram has killed Kusum and the police is not taking any action and requested her to accompany him to the police station.
State Vs. Bacha Ram 21 Her statement was recorded by the police in this case. She handed over the attested copy of complaint of Kusum and copy of statement of Bacha Ram to the IO. This witness further deposed that she could not produce the original complaint or the statement as the same has been destroyed as per policy of destruction of five years old record by their counseling center. The attested photocopies of complaint and the statement of Bacha Ram are proved as Ex PW 22/A and Ex PW 22/B (running into three pages).
27. PW23 is Head Constable Surender Kumar who stated that on 30.09.2003, he was posted as Head Constable Photographer in Mobile Crime Investigation Team, West District. On that day, on receipt of information, they went at 18L Extension, Rama Park Road, Mohan Garden, Uttam Nagar, Delhi where they found the dead body of Smt. Kusum on a cot. SDM, SHO, IO and other police staff were also present at the spot. At the asking of SDM, he took 17 photographs of the dead body and the scene of crime, prints of those were given to the IO. The negatives and positives are proved as Ex PW 23/1 to Ex PW 23/17 and Ex PW 23/18 to Ex PW 23/34 respectively.
28. PW24 is SI Mahesh Kumar. He stated that on 20.11.2003, he was posted as draftsman in Crime Branch and at the request of State Vs. Bacha Ram 22 Inspector R. Chandran, Additional SHO P.S Uttam Nagar visited the place of occurrence i.e L18, Extension Rama Park, Mohan Garden , house of Ganshyam along with IO. There, at the instance of IO, he took rough notes and measurements of the spot, on the basis of which site plan was prepared by him which is proved as Ex PW 24/A. Thereafter, he handed over the site plan to the IO, who recorded his statement. Rough notes were destroyed after preparation of the scaled site plan.
29. PW25 is Ram Parkash who deposed that he had been residing at the house of accused Bacha Ram at Delhi since the year 2002 and accused Bacha Ram, is related to him as his brother in distant relation. Accused Bacha Ram got married on 20.06.2002 and after marriage, he (Ram Parkash) continued to reside with him for 46 months at his residence at Kumhar Colony, Vikas Nagar. After 46 months, he (Ram Parkash) became ill. Accused asked him to reside separately. Then, he started residing at the house of his brother Mahipal. Accused and his wife shifted their house from Kumhar Colony to Rama Park, Mohan Garden. The name of wife of accused was Kusum and he was having brotherly relation with her. When he became ill for some days, the accused was having doubt on his relation with Kusum. He told the accused that Kusum was like his sister and she could tie Rakhi to him. The name of sister of Kusum was Krishna @ Babbi and that of her State Vs. Bacha Ram 23 husband was Balraj. They were also residing in a separate house in Kumhar Colony, Vikas Nagar. He was having visiting terms at their house.
This witness further deposed that no quarrel took place in his presence at the house of Krishna. As the witness was resiling from his previous statement, he was crossexamined by Ld Additional Public Prosecutor wherein he admitted that in the first week of September, one day when he went to the house of Krishna, her sister Kusum was also present and while he was talking to her, accused Bacha Ram reached there and on seeing him, he (accused) became angry and started shouting. The accused Bacha Ram threatened to kill Kusum. Whenever accused Bacha Ram met him, he used to repeat that one day his wife Kusum would die at his (accused) hands. Whenever he tried to persuade him, he used to say that she (Kusum) is his (accused) wife and he would do whatever he feels like. It is further admitted by this witness in his crossexamination that on 30.09.2003, he came to know that Bacha Ram has fled away after killing Kusum and the body of Kusum was shifted to DDU Hospital.
30. Dr. L.K. Barua is examined as PW23, who conducted postmortem examination on the body of deceased Kusum W/o Sh. Bacha Ram. She stated that at the time of postmortem examination the body State Vs. Bacha Ram 24 was wearing petikot, blouse, bra, two jhimka, one mEitahl ring in middle and ring finger and two bichhuey, all removed and handed over to the police in sealed condition. It is further stated that rigor mortis was absent. Postmortem staining was present on the backside on the body. The body was already in a decomposed condition. The scalped hair, both cheeks contained blood clot. The body was of thin built and following injuries were observed on examination: "Injury No.1 : One obliquely placed abraission/contusions in front of the neck of size 2.50 cm x 1.4 inches.
2. Crescentic liner abraission resembling nail marks were seen on left sub mentle area. No other external injury was seen visible due to decomposed condition of the dead body.
On Internal Examination the skull bones were intact. The brain was congested. On examination of the neck, there was massive extra vasation of blood on both sides of thyroid cartilage. The thyroid got fractured in the middle. Both sides of thyroid cartilage, the muscles showed bruising. Larnyx showed blood clot. On examination of the heart right side chambers of the heart contained full of blood, left side was empty. The liver was congested. Stomach was empty. No other abnormality was seen on the body."
This witness after postmortem has given his opinion which is as State Vs. Bacha Ram 25 follows: "Opinion: The injuries mentioned above were antimortem in nature. The injuries to the neck was caused by a blunt heavy object by pressing against the neck. Death was due to asphyxia following pressure over the wind pipe. Time since death was approximately 36 hours."
It is further stated by Dr. L.K. Barua that after postmortem was completed, one sealed packet sealed with the seal of AKS was produced by the police seeking opinion regarding weapon of offence vide application filed by the police which is proved as Ex PW 7/C. After opening the packet, one all steel hammer was seen. After examining the hammer and the injuries on the body, he was of the opinion that injury No.1 on neck could be possible by this weapon. It was resealed with the seal of LKB and handed over to the police. He has also drawn the sketch of the hammer on the postmortem report which is proved by him as Ex PW 23/A.
31. PW 25 is Inspector Bega Ram, who has corroborated with the statement of PW17 constable Surinder Kumar with regard to reaching the spot and stated that on inquiry they came to know that deceased Kusum had got married with Bacha Ram in the year 2002 and Kusum during her lifetime had filed a dowry complaint against accused State Vs. Bacha Ram 26 Bacha Ram with Mahila Mandal, Sagarpur. Additional SHO passed information to SDM and other senior officials. Crime team was called at the spot. SDM, Patel Nagar came at the spot to conduct inquest proceedings. Crime team along with photographer came at the spot. The crime team photographer took the photographs. The crime team inspected the spot. SI Manoj and Incahrge Crime Team prepared the report and handed over the same to him. SDM recorded statement of Krishna @ Babbi, sister of the deceased and issued directions to the SHO to register FIR. Additional SHO R. Chandran made endorsement for registration of the case under Section 498A/304B/302 IPC and sent rukka to police station through Constable Surender. Thereafter, the dead body was sent for preservation to DDU hospital through Constable Surender.
Inspector R. Chandran lifted one hammer, a blood stained sheet, blood stained chunni, one blanket and one letter and kept them in separate sealed pullandas and sealed with the seal of AKS which were seized vide memos Ex PW 3/B, Ex PW 3/D, Ex PW 3/G and Ex PW 3/H respectively. Inspector R. Chandran recorded statement of witnesses. On 02.10.2003, accused Bacha Ram was arrested. This witness has also identified the hammer as Ex P6, bed sheet and chunni as Ex P4 and Ex P5 respectively, blanket as Ex P15 and letter as Ex P1.
As the witness was partly suppressing the facts, he was State Vs. Bacha Ram 27 crossexamined by Ld Additional Public Prosecutor wherein he admitted that a pillow having blood stains was also recovered from the spot which was kept in a pullanda sealed with the seal of AKS and seized vide memo Ex PW 3/D. The hammer was measured and its sketch was prepared which is proved as Ex PW 3/C. In the room, near the hands of body of Kusum, green colour broken glass bangles pieces were lying which were kept in a plastic box and a cloth pullanda was prepared which was sealed with the seal of AKS and seized vicde memo Ex PW 3/F. It is further admitted by this witness during his crossexamination that on 02.10.2003, on interrogation, accused Bacha Ram got recovered bus ticket no. 7186493, train ticket no. 05459998 dated 01.10.2003 from Aligarh Junction to Delhi Junction and bus ticket no. 82319 regarding the journey undertaken by him (accused) on 01.10.2003 were seized vide memo Ex PW 25/A. On interrogation, accused had given a disclosure statement which is proved as Ex PW 5/A and had pointed out the place of occurrence vide pointing out memo Ex PW 5/B. The accused Bacha Ram had also got recovered a pocket diary from H.No. 18, LExtension, Rama Park Road, Mohan Garden which was seized vide memo Ex PW 3/E. Arrest memo of accused was prepared which is proved as Ex PW 5/D and his personal search was conducted vide memo Ex PW 5/C. This witness has also identified the pillow as Ex P3, broken bangle pieces as Ex P15, bus and train ticket as Ex P16 and stated that he had forgotten State Vs. Bacha Ram 28 the aforesaid facts due to lapse of time.
32. Head Constable Sudip Kumar is examined as PW24. He stated that on 30.09.2003, he was posted at P.S Uttam Nagar as constable. On that day, the duty officer handed over to him the copies of FIR of the present case to deliver the same to senior officials in pursuance of DD No.13A dated 30.09.2003 which is proved as Ex PW 24/A. Thereafter, he took the aforesaid copies of FIR to senior officials and the area M.M and returned to police station. His statement was also recorded.
33. PW26 is Sh M.A. Ashraf, Deputy SecrEitahry, Home, Delhi. He stated that on 30.09.2003, he was posted as SDM, Patel Nagar and after receiving information from P.S Uttam Nagar, he reached house No. 18, LExtension, Rama Park Road, Mohan Garden, Uttam Nagar, Delhi. He inspected the spot and the dead body of Smt. Kusum wife of Bacha Ram. The body was lying on a cot. He conducted the inquest proceedings and also filled up the form which is proved as Ex PW 26/A. He recorded the statements of the relatives of the deceased which includes Smt. Kanta Devi, mother of deceased which is proved as Ex PW 2/A, Rajinder Kumar, brother of the deceased which is proved as Ex PW 26/B, younger sister Krishna @ Babbi of the deceased which is proved as State Vs. Bacha Ram 29 Ex PW 3/A and that of Ghanshyam, landlord of deceased which is proved as Ex PW 26/C. This witness further deposed that on the statement of Krishna @ Babbi, he made endorsement and directed SHO P.S Uttam Nagar to take further necessary action as per law. His endorsement is proved as Ex PW 26/D. On 01.10.2003, he recorded the statements of Sh. Rajinder Kumar, Kanta Devi and Smt. Krishna @ Babbi regarding dead body identification of Smt. Kusum, which have been proved as Ex PW 3/1, Ex PW 26/E and Ex PW 2/B respectively. Thereafter, he requested the CMO, DDU hospital, Department of Mortuary for the postmortem of the deceased Smt. Kusum vide his request which is proved by him as Ex PW 26/F. He further requested that the wearing clothes and the other articles with the body may be preserved and handed over to the police along with sample blood and after postmortem to hand over the body to IO Inspector R. Chandran of P.S Uttam Nagar.
34. PW27 is Sushil who stated that on 30.09.2003 at about 9.00/9.30 a.m, he was standing at the bus stand of Amapur, near his village. Accused Bacha Ram present in the court is from his village and met him at the bus stand and asked him about the well being of his house. He (PW27) informed him that a quarrel had taken place between his brothers on account of family partition and that his brothers were in State Vs. Bacha Ram 30 the police station. He also asked him not to return to his house as he would also get involved in the quarrel and would be apprehended by the police, to which he agreed and went away without telling anything else. As the witness was resiling from his previous statement, he was cross examined by Ld Additional Public Prosecutor but denied the suggestions put on behalf of State to him and was confronted with portions A to A, B to B, C to C, D to D and E to E of statement mark Ex PW 27/A.
35. PW28 is Sh. R. Chandra, Assistant Government Examiner Questioned Documents, Chandigarh who stated that he is M.Sc. in Chemistry and has received three years specialized training in the field of handwriting identification and detection of forgery. He further stated that the documents of this case were received by his office from Additional DCP, West District, New Delhi vide letter dated 21.11.2003 for examination. He has carefully going through the documents Q1 and Q2 exhibited as P1 and the admitted handwriting A1 to A9 exhibited as P2 and specimen handwriting S1 to S11 exhibited as Ex PZ/111 and after thorough and scientific examination of the same, came to the conclusion that the person who wrote the blue enclosed writings stamped and marked S1 to S11 and A1 to A9 also wrote the red enclosed writings similarly stamped and marked Q1 and Q2. He proved his opinion as Ex PW 28/A and the dEitahiled reason in support of his opinion as Ex PW 28/B. State Vs. Bacha Ram 31
36. PW29 is Retired Head Constable Vijay Singh who stated that on 30.09.2003 he was posted as Finger Print Expert in Crime Team, West District, Delhi at P.S Kirti Nagar. On that day, on receipt of information, he accompanied the crime team with SI Manoj Kumar and reached at H.No. 18L Extension, Rama Park Road, Mohan Garden where he found dead body of Smt. Kusum on a cot. He inspected the spot for chance prints but could not find any chance prints and gave NIL report to Incharge Crime Team. Accordingly, crime team report which is proved as Ex PW 19/A was prepared showing number of chance prints developed on articles as NIL. Thereafter, his statement was recorded.
37. PW30 is HC Virender Singh who stated that on 30.09.2003, he was posted at P.S Uttam Nagar as MHC(M). On that day, Inspector R. Chandran deposited four sealed pullandas all sealed with the seal of AKS in which respect, he made entry at serial No. 2795 in register No. 19.
Thereafter, on 01.10.2003 Inspector R.Chandran deposited one Khakhi envelope, one sealed pullanda, both sealed with the seal of LKB along with sample seal of LKB in which respect, he made entry at Serial No. 2798 in register No.19.
On 02.10.2003, Inspector R. Chandran deposited the personal search of accused Bacha Ram in which respect, he made entry State Vs. Bacha Ram 32 at Serial No. 2802 and proved the aforesaid entries in register No. 19 collectively as Ex PW 30/A. On 01.10.2003, Inspector R. Chandran had taken the sealed pullanda sealed with the seal of AKS containing hammer for opinion at DDU Mortuary and on 07.10.2003, the aforesaid pullanda was redeposited and sealed with the seal of LKB DDU hospital.
PW30 further stated that on 21.11.2003 four pullandas duly sealed along with sample seal were sent to FSL, Malviya Nagar through Constable Surender vide R.C No. 248/21 and the aforesaid report was received on 17.08.2004. The case property has not been tampered with as long as the same remained in his custody. This witness has also proved the copy of road certificate register as Ex PW 30/B.
38. PW31 is Head Constable Pawan Kumar who stated that on 24.11.2003, he was posted at P.S Uttam Nagar as Constable and on the instructions of IO Inspector R. Chandran, after collecting the documents addressed to GEQD Chandigarh which were duly sealed, deposited the same at Chandigarh office on 25.11.2003. Thereafter, on return, he handed over the receipt to the IO. He further stated that the documents were not tampered with as long as they remained in his custody.
39. PW32 is SI Aman Singh. He deposed that on 30.09.2003 he State Vs. Bacha Ram 33 was posted as on duty at Police Control Room and received a telephonic message regarding murder at L Extension near Neel Kamal Electronics, Rama Road Park, Mohan Garden, Uttam Nagar. He passed on the said information to channel and the aforesaid information through wireless was sent to police control room, West District on which DD No. 4A was registered on 30.09.2003 at P.S Uttam Nagar. The concerned record had been destroyed by the order of Deputy Commissioner of Police, Control Room Delhi. The copy of said order is proved by him as Ex PW 32/A and the attested copy of DD No. 4A is proved as Ex PW 1/A.
40. PW33 is Head Constable Banwari Lal who stated that on 21.11.2003 he was posted at P.S Uttam Nagar as MHC (M) along with HC Virender. On that day, IO Inspector R. Chandran handed over to him a forwarding letter for sending the exhibits to FSL Malviya Nagar in which Constable Surender was nominated and accordingly the exhibits along with sample seal were handed over to Constable Surender by HC Virender vide RC No. 248/21 who on return handed over the receipt to Constable Virender. It is further stated that these exhibits were not tampered with as long as they remained in his custody. PLEA AND DEFENCE OF ACCUSED.
In the statement U/s 313 Cr.P.C the accused has admitted State Vs. Bacha Ram 34 that he got married Kusum on 20.06.2002. He also admitted that he produced a railway ticket and bus ticket which are Ex PX. He in relation to other incriminating evidence has either denied the prosecution case or has expressed his ignorance about the incriminating evidence emerging from prosecution case put to him by way of different questions. He has stated that it is a false case against him. He was not present at the spot and had already left for his village on the day of alleged incident at about 7.00 p.m. Nothing was recovered at his instance and he was forced to sign blank papers at the police station. He also stated that police officials obtained his writing on many pages. The accused did not lead any evidence in defence.
ARGUMENTS AND FINDINGS
41. The learned Chief Public Prosecutor for the State has argued that the demand of dowry is proved by brothers, sister and mother of deceased, the weapon of offence the hammer is recovered from the spot, the medical evidence supports the prosecution, the death occurred within seven years of marriage and the letter was also recovered in the writing of accused admitting the guilt so accused is liable to be convicted under section 302 IPC/498 IPC and section 304 B IPC.
42. The learned Amicus Curiae appearing on behalf of the State Vs. Bacha Ram 35 accused, on the other hand, has argued that the accused was not present at the spot at the time of a unnatural death of his wife. He is falsely implicated in this case. It was a dowry less marriage as both accused's family and victims family are poor families. PW3 Krishna sister of the deceased has not stated about any demand of dowry. Her husband Balraj is witness of hearsay evidence. No public witness is joined by the investigating agency at the time of recoveries made from spot. No fingerprints of the accused are proved to be found on the weapon of offence, the hammer. The accused is stated to be arrested from the house of his aunt who is hostile witness. The prosecution has, therefore, failed to prove the charges against the accused beyond reasonable doubt and accused is entitled to be acquitted.
43. I have heard the learned Chief Public Prosecutor for the State, learned Amicus Curie appointed by the court for the accused and have gone through the record of the case and relevant provisions of law.
The present case is based on circumstantial evidence. The important aspects and circumstances emerging in this case are being dealt with under different headings for the sake of convenience and the proper understanding and appreciating the evidence on record. But before that it would be appropriate to have a glance the legal position as State Vs. Bacha Ram 36 to the cases based on circumstantial evidence.
LEGAL POSITION AS TO THE CASES BASED ON CIRCUMSTANTIAL EVIDENCE In Sunder @ Lala and Ors. Vs. State 2009 VII AD (Delhi) 615 it was held as under:
" 29. It is settled law that circumstances play very important role in the appreciation of evidence. The conduct of witnesses is a very important facet to determine their creditworthiness. "
44. As evidence, there is no difference between direct and circumstantial evidence. The only difference is in that as proof, the former directly establishes the commission of the offence whereas the latter does so by placing circumstances which lead to irresistible inference of guilt. (See Dalpat Singh v. State of Rajasthan 2005 Cr LJ 749 (Raj) (DB)). The evidence has not to be considered merely as a number of bits of evidence, but the whole of it together and the cumulative effect of it has to be weighed. (See Dukharam Nath V Commercial Credit Corpn Ltd AIR 1940 Oudh 35). No distinction has, therefore, to be made between circumstantial and direct evidence.
State Vs. Bacha Ram 37 {See Miran Baksh V Emperor AIR 1931 Lah 529 and Thimma V State of Mysore (1970) SCC (Cr) 320}. The court must satisfy itself that the cumulative effect of the evidence, led by the prosecution, establishes the guilt of the accused beyond reasonable doubt. (See Shankar Bhaka Narsale V State of Maharashtra AIR 1972 SC 1171 and Chanan Singh V State of Haryana AIR 1971 SC 1554) In Padala Veera Reddy v State of AP, AIR 1990 SC 79 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Shivu & Anr. v R. G., High Court of Karnataka, 2007 Cr LJ 1806 (SC)) State Vs. Bacha Ram 38 In Raju Vs. The State by Inspector of Police AIR 2009 SC 2171, as regards circumstantial evidence, the Hon'ble Apex Court observed as under:
"7. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
8. We may also make a reference to a decision State Vs. Bacha Ram 39 of this Court in C. Chenga Reddy and Ors. v.
State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".
9. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such State Vs. Bacha Ram 40 evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
10. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
11. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence:
(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to State Vs. Bacha Ram 41 be acquitted".
12. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
13. In Hanumant Govind Nargundkar and Anr.
V. State of Madhya Pradesh, (AIR 1952 SC
343), wherein it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
14. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be State Vs. Bacha Ram 42 cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;
(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.
15. These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr.
(2003 (11) SCC 261), Kusuma Ankama Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008) and Manivel and Ors.
v. State of Tami Nadu (Criminal Appeal No.473 of 2001 disposed of on 8.8.2008)."
State Vs. Bacha Ram 43 LAST SEEN EVIDENCE
45. PW3 the sister of the deceased Kusum has stated that on 29/9/2003 accused visited with deceased her house at 5 PM and on 30/9/2003 she was informed at about 8.30 a.m. by Prem Lata that Kusum was not responding. PW 13 Prem Lata denied in the examinationin chief that on 29/9/2003 at about 9 PM she had seen the accused along with his wife in tenanted premises and heard a quarrel between them. She is hostile witness to some extent. In the crossexamination conducted on behalf of State she admitted that she had seen accused and his wife on 29/9/2003 at 8.00/9.00 p.m. in their room but had not seen any quarrel at that time. She also stated that she had not seen accused in his room on 30/9/2003 when she along with Krishna reached there and saw the dead body of his wife lying. Therefore, the sister of the deceased PW3 Krishna has seen accused and her deceased sister in the evening on 29/9/2003 and the daughter of the landlord of the accused has seen them together in the rented room in the night at 8.00/9.00 p.m. on 29/9/2003. In the crossexamination conducted on behalf of the accused PW 13 Prem Lata has denied the suggestion that she had not seen accused along with his wife at about 9.00 p.m. on 29/9/2003. Hence, the prosecution has proved that the accused and deceased were last seen together prior to murder of the deceased Kusum.
State Vs. Bacha Ram 44 ACCUSED AND DECEASED LIVING TOGETHER IN THE PLACE OF INCIDENT/ROOM
46. It is proved by the prosecution by way of statement of landlord PW9 Ghanshyam, his wife PW12 Kamla, his daughter PW13 Prem Lata and brothersinlaw of the accused PW8 Rajender Prasad and PW10 Lalit Kumar and PW 18 Mrs Bimla Devi the sister of mother of accused that accused and his wife were living together in the room in question. PW3 Krishna the sister of the deceased Kusum and PW7 Prem Lata the daughter of the landlord, as already discussed, have proved that the accused and victim were last seen together on 29/9/2003 before the dead body of the victim Kusum was seen on 30/9/2003. Therefore, as proved by PW7 Prem Lata the accused and the victim were together on the night of 29/9/2003 in their room. This circumstance requires the accused to explain as to who committed the murder of the deceased failing which the natural presumption is that accused has committed this murder. There is also caselaw on this point though in somewhat different situation. In Prabhakar Jasappa Kanguni v. State of Maharashtra, A.I.R. 1982 (SC) 1217 it was held:
"16. The other circumstances listed above had also been finally established, once State Vs. Bacha Ram 45 circumstance (a) is established, then, taken in conjunction with the other circumstances, particularly the undisputed fact that at or about the time of Malti's death, no third person excepting the accused and the deceased, was present in the house, it will inescapably lead to the conclusion that in all human probability, it was the accusedappellant and none else, who had murdered the deceased by strangulating her to death."
In State of U.P. v. Dr. Ravindra Prakash Mittal, A.I.R.1992 (SC) 2045 the following observations were made:
"41. Even though we are not finding the respondent guilty solely on his false explanation, yet that explanation assumes much significance because it is for the respondent to come forward with an acceptable and plausible explanation explaining the circumstances under which the deceased had met with her end, since, in our considered opinion, the respondent was in the company of his wife on the previous night and was found in the bed room in the early morning."
Therefore, the fact that the accused and his wife were last State Vs. Bacha Ram 46 seen together and they were living in the same room in which the murder of the victim wife of the accused is committed is a very strong incriminating circumstance against the accused leading to the presumption that accused has committed the murder in question, he having failed to discharge his obligation by explaining the fact within his special knowledge as to who committed the murder of his wife or by proving the plea of alibi by defence evidence.
ACCUSED ABSCONDED FROM THE SPOT
47. It is proved by the sister of deceased PW3 Krishna and PW13 Prem Lata that accused was not present at the spot when in the morning of 30/9/2003 they visited the room in which the accused and his wife were living. The landlord of the accused PW9 Ghanshyam has also stated that accused was not present at about 9 AM when he came to know that wife of accused was lying dead in the house. The accused in his statement under section 313 CrPC has stated that he was not present at the spot and had already left for his village on the day of alleged incident at about 7 PM. But he has not lead any evidence to prove this fact. Therefore, the statement of the accused under section 313 CrPC is not sufficient to rebut the prosecution case that Accused absconded from the spot.
State Vs. Bacha Ram 47 In Kalloo Passi Vs. State 2009 (4) LRC 129 (Del) (DB) High Court of Delhi, it was observed by Division Bench of our Hon'ble High Court as follows:
"16. It is settled law that mere absconding by itself does not necessarily lead to a conclusion of a guilty mind. The act of selfpreservation is such that even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime. The act of absconding is no doubt a relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. For instance, the circumstance of abscondence can be extremely fatal if the prosecution is able to prove that the victim was last seen in the company of the accused and that the accused is absconding after the death of the victim. Normally, the courts are disinclined to attach much importance to the act of absconding, treating as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused (see the decision of Supreme Court reported as Matru Vs. State of UP, AIR 1972 SC 1050)."
State Vs. Bacha Ram 48 Since in the present case, as already discussed, the prosecution has been able to prove that the accused and victim were last seen together, the circumstance of his absconding is a very strong piece of evidence against the accused in the light of Kalloo Passi 's case (supra). RECOVERY OF WEAPON OF OFFENCE
48. The weapon of offence, the iron hammer, is recovered by investigating officer vide memo Ex PW 3/B from the rented room with accused in which the dead body of the deceased was also found. It may not be a very strong piece of evidence against the accused as it is not recovered at the instance of or from direct possession of accused, still it is one of the incriminating circumstances of corroborating nature appearing against the accused in this case as the said hammer is recovered near the dead body of victim from the room in which accused was living.
MEDICAL EVIDENCE
49. PW23 Doctor LK Barua has conducted postmortem examination of the body of deceased Kusum. He gave opinion that the injuries on the neck of the deceased were caused by a blunt heavy object by pressing against the neck. The death was due to asphyxia following State Vs. Bacha Ram 49 pressure over the windpipe. He also gave opinion that the injury No.1 on neck could be possible by the hammer recovered from the spot and produced before him for his opinion as to cause of injury. The post mortem report and the opinions given by this doctor are proved by him as Ex PW 23/A which contained the diagram of the weapon of offence, i.e., hammer also. Therefore, the medical evidence also supports the prosecution case. It is also one of the corroborative piece of evidence appearing against the accused in this case.
LETTER OF THE ACCUSED CONFESSING GUILT
50. The recovery of the letter Ex P1 near the feet of the deceased Kusum by seizure memo ExPW 3/H is proved by PW3 Krishna the sister of deceased Kusum, PW SI Bega Ram, PW Constable Surinder Kurup and the investigating officer PW7 retired Inspector R. Chandran. In this letter Ex P1 the accused explained the circumstances due to which he committed murder of his victim wife. This confessional letter is proved to be in the handwriting of the accused by PW 20 Shri Rajak Khan who has stated that the accused worked with him as a kabri. He testified that the letter Ex P1 was in the handwriting of the accused.
The pocket diary of the accused was also recovered by the investigating police vide memo Ex PW 3/E. Later on during investigation the investigating officer sent the letter Ex P1 and the admitted State Vs. Bacha Ram 50 handwriting of the accused to the Government examiner. The Assistant Government Examiner, Questioned Documents, Chandigarh Shri R. Chandra is examined as PW 28 and has proved his opinion Ex PW 28/A. The detailed reasons in support of his opinion ExPW 28/B. The opinion given by this handwriting expert is that the questioned letter Ex P1 and the admitted handwriting of the accused has common author ship. Therefore, the letter Ex P1 written by the accused detailing the circumstances due to which he was annoyed with his wife and also confessing that he murdered her due to those circumstances is a strong piece of evidence against the accused in this case. It is pertinent to note that the confessional statement is not recorded before the police or in presence of any police officer. It was recovered by the police from near the dead body of the victim in the absence of the accused, therefore the confessional statement Ex P1 is not hit by section 25 of section 26 of the Indian Evidence Act.
ACCUSED SUSPECTING CHARACTER OF HIS WIFE
51. The letter Ex P1 indicates that the accused suspected character of his wife and has strained relations with her. In addition PW 25 Ramprakash has stated that he had been residing with the accused is 2002 and accused is related to him as his brother in distant relation. Accused got married on 20/6/2002 and after his marriage he State Vs. Bacha Ram 51 (Ramprakash) continue to reside with him for 46 months. He became ill after that. Accused asked him to reside separately. Then he started living in the house of his brother. Accused and his wife shifted to another colony in Rama Park., Mohan Garden.
He also stated that the wife of accused was Kusum and he was having brotherly relations with her. He stated that no quarrel took place between accused and Kusum at the house of Krishna. He was crossexamined on behalf of State as he was resiling from the previous statement. In the crossexamination conducted on behalf of State he admitted that in the first week of September, one day he went to the house of Krishna, her sister Kusum was also present and while he was talking to her, accused reached there and on seeing him, accused became angry and started shouting. The accused threatened to kill Kusum. Whenever accused used to meet him, he used to repeat that one day his wife Kusum would die at his (accused) hands. PW4 Balraj brotherin law of the accused (husband of Krishna the sister of victim Kusum). He stated in the examinationinchief that there used to be frequent quarrel between Kusum and the accused as Kusum used to talk to Ram Parkash who used to live along with accused. Ram Parkash later on left the premises and separated from accused. Once Kusum was present at their house and at the said time Ram Parkash had visited their house. Accused reached there and started abusing Kusum. Thereafter accused left the State Vs. Bacha Ram 52 spot. Subsequently, on one day he came to know that Kusum had been killed.
The Accused suspecting the character of his wife looks to be one of the reason/motive of accused in killing her. DEMAND OF DOWRY/CRUELTY
52. PW2 Kanta Devi the mother of the victim has stated in the Examinationinchief that accused had started harassing her daughter for bringing more dowry. He used to tell her that they had not given free, colour TV, double bed, jewellery items and other articles in dowry. He used to tell her daughter to bring aforesaid articles. Her daughter Kusum disclosed her about the demands made by accused about one week prior to her death when she had visited her house. But in the cross examination she was confronted with her previous statement ExPW 2/DA with regard to deceased disclosing her about seven days prior to her death about these demands of dowry and also about the demand of colour TV, double bed and jewellery. Therefore, due to contradictions in the statement of witness this witness cannot be relied upon for the purpose of the accused subjecting the victim with cruelty or with demand of dowry.
53. PW3 Krishna has stated in her examinationinchief that State Vs. Bacha Ram 53 accused started making demand for colour TV, scooter etc and used to beat her sister on small matters after one month of the marriage. But in the crossexamination she stated that no police complaint was lodged by her sister by saying that it was matter of her household. She had not lodged any report regarding demand of TV, scooter etc. A report was lodged before Mahila Mandal regarding articles belonging to Kusum were sent to his native village in the absence of Kusum but no report was lodged in police station. PW4 Balraj the brotherinlaw of accused has stated nothing about demand of dowry by accused from the victim or her parents.
54. PW8 Rajender the brother of victim Kusum has stated in the examination in chief that after two months of the marriage accused started harassing and beating his sister as she used to demand cash amount from her and whenever his sister visited their house she told this fact. Once or twice, the accused also demanded the cash amount from him and he refused to fulfil the said demand. The accused also raised the demand of scooter, gold chain and TV. But in the crossexamination this witness was confronted with his previous statement Ex PW 8/DA where it was not mentioned that accused also demanded TV. Although this witness in the examinationinchief has stated that accused also demanded the cash amount from him but in the crossexamination he State Vs. Bacha Ram 54 stated that accused demanded the cash amount from his mother and not specifically from him. Therefore, this witness is also not reliable so far as the demand of dowry cash or other articles by the accused from the victim or her parents or brothers is concerned.
55. PW10 Lalit Kumar is also brother of deceased Kusum. He stated that after some time of the marriage accused started quarreling with his sister and he used to beat her. His sister demanded a sum of Rs 20/25,000/ from them because the said amount was demanded by accused for opening a kabari shop. They refuse to pay the said sum as they were not in a position to pay the said amount as demanded by the accused. Accused also demanded a golden chain for himself and this fact was told to them by their sister. He sister also told that accused was harassing and demanding a scooter. Whenever he used to return from the work and meet his sister, he found his sister weeping and she told him that accused was harassing her for demanding scooter, cash amount and chain but he used to pacify his sister. This witness also seems to have exaggerated the claim of dowry demands as he is the only witness of prosecution who has alleged that a sum of Rs 20/25,000/ was demanded by the accused while his brother and sister and mother have not stated so in the statement. The statement of the other brother of the victim and of mother is not worth believing regarding demand of dowry, as referred State Vs. Bacha Ram 55 before. Therefore, I do not believe he testimony of this witness PW 10 Lalit Kumar also regarding demand of dowry made by the accused from the victim.
56. PW22 Ms Chitra R. Panchkaran, counsellor and programme secretary,Pavitra Parivar Family Counselling Centre has stated that the victim on 22/7/2003 lodged a complaint against her husband stating he used to beat her and often goes to his village leaving her behind. She has proved the complaint of the victim Ex PW 22/A but nowhere in this complaint any mention of any demand of dowry is there. Nor there is anything in the complaint from which it can be gathered that accused used to harass and beat the victim on account of demand of dowry. The victim and the accused compromised the matter and accused gave in writing Ex PW 22/B that whatever house articles have been shifted by him to his village would be brought back by him from the village to Delhi and he would not repeat the mistake again. The matter was closed amicably there. Therefore, in the proceedings before Pavitra Parivar Family Counselling Centre , there is no allegation of demand of dowry or harassment on account of demand of dowry levelled by the victim against the accused. The sister PW3 Krishna of the victim Kusum has also stated in her statement that this complaint was made because the accused had shifted the household articles to the native place and the State Vs. Bacha Ram 56 matter was resolved.
57. In view of the above, the motive for the crime seems to be the accused suspecting the character of his wife as described before and not the demand of dowry.
ADDITIONAL/MISSING LINK IN THE CHAIN OF CIRCUMSTANCES
58. Once the fact of last seen together is proved, a duty is cast on the accused to explain the circumstances in which they parted company. The failure of the accused to explain the circumstances in which he parted company with the deceased may well serve as additional link in the chain of circumstances thereby fortifying the prosecution case. (See Yogesh Karki v. State of Sikkim 2006 Cr LJ 509 (Sikkim) (DB).)Silence of inmates of the house about cause of the death of the victim, would become additional link in chain of circumstances. (See Trimukh Maroti Kirkan v State of Maharashtra, 2007 Cr LJ 20 (SC).) The accused absconding after incident is an additional circumstance which reinforces prosecution case, no explanation given by the accused as to where they were, indicates their guilty mind. (See Vaman Jaidev Raval v State of Goa, 2007 Cr LJ (NOC) 431 (Bom).) State Vs. Bacha Ram 57
59. It is a well settled principle that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue then the same offers an additional link in the chain of circumstances to complete the chain. (See Swepan Patra v State of West Bengal (1999) 9 SCC 242; Anthony D'Souza & ors v State of Karnataka 2002 (10) AD 37 (SC)) A false answer offered by the accused when his attention was drawn to a circumstance renders that circumstance capable of inculpating him. In such a situation a false answer can also be counted as providing 'a missing link' for completing the chain. (See State of Maharashtra v Suresh 2000 (1) SCC 471, 2000 SCC (Cr) 263; Kuldeep Singh & ors v State of Rajasthan 2001 Cr LJ 479 (SC), (2000) 5 SCC 7; Joseph v State of Kerala AIR 2000 SC 1608, (2000) 5 Sec 197; Jalasab Shaikh v State of Goa AIR 2000 SC 571, 2000 AIR SCW 111.) Where the accused on being asked, offers no explanation or explanation offered is found to be false, then that itself forms an additional link in the chain of circumstances to point out the guilt. (See Chandrasekhar Kao v Ponna Satyanarayana AIR 2000 SC 2138, JT 2000 (6) 465 SC; State of Tamil Nadu v Rajendran AIR 1999 SC 3535, 1999 Cr LJ 4552; Hari Lal v State 2001 Cr LJ 695 (All) (DB); Madho Singh & etc v State of Rajasthan 2001 Cr LJ 2159 (Raj) State Vs. Bacha Ram 58 (DB); Sonatan Mahalo v State of West Bengal 2001 Cr LJ 3470 (Cal) (DB).)
60. In the light of the above case law based legal position the accused having absconded from the scene of crime at the relevant time, his non explanation about the circumstances in which he parted company with the victim deceased besides the fact that he and his victim wife were living together in the room in which she was found dead, he was seen in the evening by sister of the victim Krishna with the deceased at her home and by the daughter of the landlord PW13 Prem Lata in the night at 8 PM/9 PM on 29/3/2003, his nonexplanation and the explanation offered and section 313 Cr.P.C statements being not true amounts to additional link or providing missing link in the chain of circumstances to the prosecution to prove the prosecution case based on circumstantial evidence.
RESULT OF THE CASE
61. In view of the above discussion the prosecution has proved its case based on circumstantial evidence by proving each end every part of the chain of incriminating circumstances appearing against the accused beyond the shadow reasonable doubt for the charge under section 302 IPC. However, in the given facts and circumstances of the State Vs. Bacha Ram 59 case referred and discussed above it cannot be held that there was any recent demand of dowry by accused from the victim and her parents or brothers or on account of that reason the accused used to subject the victim with cruelty. The root cause of strained relationship between accused and his wife or his misbehaving with her looks to be accused suspecting the character of the victim which led to commission of murder of the victim by the accused. Therefore, the charges under sections 498 A and alternative charge under Section 304 B IPC are not established against the accused. However, since the main charge under section 302 IPC stood proved against the accused, there is no need to go into the charge under section 304 B IPC which is the charge in the alternative. Hence, the accused is convicted of the charge under section 302 IPC and is acquitted of the charge under section 498 A IPC. The judgment be sent to the server (www.delhidistrictcourts.nic.in). Let the accused be heard on the point of sentence.
Announced in the open court on this 18th day of December 2010 (S. K. SARVARIA) DISTRICT JUDGEVIII & INCHARGE ADDITIONAL SESSIONS JUDGE ROHINI COURTS, DELHI State Vs. Bacha Ram 60 IN THE COURT OF S.K. SARVARIA DISTRICT JUDGEVIII & INCHARGE ADDITIONAL SESSIONS JUDGE:
ROHINI COURTS DELHI SESISONS CASE NO. 122/2010 State Vs. Bacha Ram S/o of late Sh Harpal Singh R/o village Rajepur, PS Amarpur PO Arjabpur, Navabad, Teh Kasganj Distt Etah (UP) Temporary H No. 18, L Extension Rama Park road, Mohan Garden Uttam Nagar, New Delhi FIR NO : 904/2003 P.S : Uttam Nagar Under Sections : 302 IPC ORDER ON SENTENCE Vide my judgment dated 18.12.2010, the convict/accused Bacha Ram is convicted under Section 302 IPC.
Ld. Chief Public Prosecutor has argued that extreme death penalty may be awarded to the convict/accused as he has committed the murder of his wife.
Learned amicus curie Ms Sadhna Bhatia counsel for the convict/accused on the other hand, has argued that convict/accused State Vs. Bacha Ram 61 Bacha Ram is clean antecedents and he has to support his aged mother so leniency should be taken in favour of him on the point of sentence.
Therefore, lessor punishment provided under Section 302 IPC may be awarded to convict/accused.
I have heard learned Chief Public Prosecutor for the state and learned legal aid counsel for the accused/convict Ms Sadhna Bhatia and have gone through the record of the case and relevant provisions of law, carefully.
The punishment awarded should be proportionate to the crime committed by the convict/accused. In murder cases besides fine there may be capital punishment or imprisonment for life. Section 354 (3) Cr.P.C. requires that the Court should give special reasons for awarding the death sentence under Section 302 IPC. The settled legal position is that the death penalty is awarded only in rarest of rare murder case.
Therefore, the special reasons envisaged by Section 354 (3) CrPC are those which make the case fall amongst the rarest of rare cases.
Keeping in view the overall facts and circumstances of the case, I do not find this case to be one amongst rarest of rare cases to justify awarding the capital punishment to the convict. Therefore, the convict Bacha Ram is awarded sentence of life imprisonment for the offence under Section 302 IPC. Convict/accused. However, in the light of Bidhan Nath alias Parijat Kusum Nath & Ors. Vs. State of Assam State Vs. Bacha Ram 62 2000 CrLJ 1144 (Gau) (DB) there is no need to award fine in the given facts and circumstances of the case.
Judgment and order on sentence be sent to server (www.delhidistrict courts. nic.in). Copy of judgment and order of sentence be supplied to convict/accused free of cost.
File be consigned to record room.
Announced in the open
court on 21.12.2010 ( S.K. Sarvaria )
Distt JudgeVIII cum
Addl Sessions Judge
Rohini Court Delhi
State Vs. Bacha Ram