Delhi District Court
State vs . Brij Mohan on 28 November, 2013
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 159/2013
Unique Case ID No.: 02404R0343652011
State Vs. Brij Mohan
S/o Sh. Barkat Ram
R/o B596, Bunkar Colony,
Delhi
(Acquitted)
FIR No.: 159/2011
Police Station: Bharat Nagar
Under Section: 302/309 Indian Penal Code
Date of committal to sessions Court: 24.12.2011
Date on which orders were reserved: 27.11.2013
Date on which Judgment pronounced: 28.11.2013
JUDGMENT:
(1) This unfortunate case relates to a 72 years old, accused of brutally killing his wife Smt. Pushpa in cold blood which was apparently without any motive and then attempting to end his own life by consuming a corrosive substance. He has been charged with culpable homicide amounting to murder (Section 302 IPC) and attempting to commit suicide (Sector 309 IPC).
St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 1 of 83 CASE OF THE PROSECUTION/ BRIEF FACTS:
(2) The case of the prosecution is that on 30.7.2011 at about 5:50 PM an information was received at Police Station Bharat Nagar from the Duty Constable Dharmender of Hindu Rao Hospital that one Brij Mohan had been got admitted in the hospital by his son Manoj with alleged history of consuming acid. Pursuant to the said information DD No.40B was recorded at Police Station Bharat Nagar which was marked to SI Dharamvir Singh who along with Ct. Anil Kumar reached at the Hindu Rao Hospital and collected the MLC of injured Brij Mohan but Brij Mohan was not fit for making statement. Manoj the son of Brij Mohan was also present in the hospital who informed SI Dharamvir that his father Brij Mohan while coming to the hospital told him that he had locked his mother at home.
Thereafter SI Dharamvir and Ct. Anil came back and while they were near the Police Station they received DD No. 42 B that there was a jhagra / quarrel at B596, Bunkar Colony. On receipt of this information SI Dharamvir and Ct. Anil immediately reached at B596, Bunkar Colony where large number of public persons had gathered outside the house and on the first floor of the house they met one Kamal S/o Brij Mohan and also one PCR Official HC Anant Ram. Inside the room one aged lady was lying dead on a double bed totally smeared with blood with an injury mark on the right temple and blood was oozing out from the same. In the meantime SHO Inspector Lalit Joshi came to the spot who inspected the spot and made inquiries during which the name of the deceased was revealed as St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 2 of 83 Pushpa W/o Brij Mohan. A large number of articles were lying at the spot i.e. blood stained bed sheet, one bottle having acid type liquid, glass pieces of Pepsi bottle, blood stained iron panna, some papers and religious books, some plastic pieces along with the red colored pooja cloth all of which were in semi burnt condition, a match box, two bottles, one with the words gulab jal written on the same and other with the words gulabari written on the same and one chunni was lying near the dead body. The Scene of Crime was got inspected through the Crime Team and the various articles were thereafter seized. The dead body was thereafter shifted to BJRM Hospital mortuary through Ct. Anil Kumar. Inspector Lalit Joshi recorded the statement of Manoj Kumar the son of the deceased who informed the police that at about 3:30 PM after finishing his work he was coming to his house when at the gate of Bunkar Colony his father Brij Mohan met him who informed him that he (Brij Mohan) had consumed acid. On this he (Manoj) took his father to Hindu Rao Hospital. According to Manoj Kumar, in the meantime he also informed his elder brother Kamal and got his father admitted in the hospital and during treatment the key of the house fallen down from the pocket of the pants of his father on which he asked his father about his mother. Manoj Kumar further informed the police that his father Brij Mohan had told him that he had killed his (Manoj Kumar's) mother. On this Manoj Kumar sent his elder brother Kamal to house and he himself also went to his house where he came to know that his mother had been murdered.
St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 3 of 83 (3) On the basis of the statement of Manoj Kumar the present case was registered. On 31.07.2011 the postmortem on the dead body of deceased Pushpa was got conducted after which it was handed over to its relatives. On 5.9.2011 Brij Mohan was discharged from the hospital after which on 6.9.2011 the accused Brij Mohan was arrested and his disclosure statement was recorded wherein he disclosed of having committed the murder of his wife. After completion of investigations charge sheet was filed against the accused Birj Mohan for the offence under Section 302 & 309 Indian Penal Code.
CHARGE:
(4) Charges under Sections 302 and 309 Indian Penal Code were settled against the accused Birj Mohan to which he pleaded not guilty and claimed trial.
(5) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
Prosecution witnesses:
Sr. No. PW No. Name of the witness Details of the witness
1. PW 1 Manoj Kumar Public witness son of the deceased and accused
2. PW 2 Kamal Kumar Public witness son of the deceased and accused
3. PW 3 Taruna Public witness daughter of the deceased and accused St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 4 of 83
4. PW4 HC Suman Prasad Police witness - Duty Officer
5. PW 5 Praveen Kohli Public witness - neighbour of the deceased and accused
6. PW 6 SI Matadin Police witness - Incharge Mobile Crime Team
7. PW 7 ASI Tribhuvan Nath Yadav Police witness who had taken the Rukka to Police Station
8. PW 8 Insp. Pradeep Kumar Paliwal Police witness who had filed the charge sheet
9. PW 9 Ct. Dharmender Kumar Police witness - Duty Constable at Hindu Rao Hospital
10. PW 10 HC Anant Ram Police witness - PCR Van Incharge
11. PW 11 Ct Subash Police witness - Crime Team Photographer
12. PW 12 Ct. Krishan Police witness - Special Messenger
13. PW 13 Ct. Kapil Police witness who had deposited the exhibits in FSL
14. PW 14 HC Sanjay Police witness MHCM
15. PW 15 SI Manohar Lal Police witness - Scaled Site plan
16. PW 16 Ct. Rakesh Police witness - DD Writer
17. PW17 Ct. Anil Police witness who had reached the spot with SI Dharamvir
18. PW18 Dr. Bhim Singh Autopsy Surgeon
19. PW19 Insp. Ashok Kumar Police witness
20. PW20 Insp. Brij Pal Police witness
21. PW21 SI Dharamvir Singh Police witness - Initial Investigating Officer
22. PW22 ASI Dev Raj Police witness - Initial Investigating Officer
23. PW23 Inspector Lalit Joshi Police witness - Investigating Officer St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 5 of 83 List of documents:
Sr. Exhibit No. Details of documents Proved by
No.
1. PW 1/A Statement of Manoj Kumar Manoj Kumar
2. PW 1/B Seizure memo of key (possessed by
Manoj Kumar)
3. PW 1/C Seizure memo (possessed by Brij
Mohan)
4. PW 1/D Dead body identification statement
5. PW 2/A Seizure memo of chunni Kamal Kumar
6. PW 2/B Seizure memo of bed sheet and mattress
7. PW 2/C Seizure memo of L shaped iron rod
8. PW 2/D Seizure memo of bottle containing acid
type liquid
9. PW 2/E Seizure memo of plastic bottle, glass
pieces, burnt plastic chair, red cloth,
burnt papers and match box
10. PW 2/F Seizure memo of blood stains
11. PW 2/G Seizure memo of Broken Lock
12. PW 2/H Dead body identification
13. PW 2/J Dead body handed over memo
14. PW 2/X Statement of Kamal under Section 161
Cr.P.C.
15. PW 3/A Statement of Taruna under Section 161 Taruna
Cr.P.C.
16. PW 4/A FIR HC Suman
17. PW 4/B Endorsement on Rukka
18. PW 6/A Crime Team report SI Matadin
19. PW 9/1 Affidavit of evidence of Ct. Ct. Dharmender
Dharmender
20. PW 10/1 Affidavit of evidence of HC Anant Ram HC Anant Ram
21. PW 10/A PCR Form
St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 6 of 83
22. PW 11/1 Affidavit of evidence of Cr. Sudesh Ct. Sudesh
23. PW 11/A 1 to 13 Photographs
24. PW 11/B CD of the photographs taken by Crime
Team
25. PW 12/1 Affidavit of evidence of Ct. Krishan Ct. Krishan
26. PW13/1 Affidavit of evidence of Ct. Kapil Ct. Kapil
27. PW 13/A Copy of RC 66/21/11
28. PW 13/B RC 67/21/11
29. PW 13/C & D FSL Receipt
30. PW 14/1 Affidavit of HC Sanjay HC Sanjay
31. PW 14/A Copy of Reg No. 19 Sr. No. 309
32. PW 15/1 Affidavit of evidence of SI Manohar Lal SI Manohar Lal
33. PW 15/A Site plan
34. PW 16/A DD No. 40B Ct. Rakesh
35. PW 16/B DD No. 42B
36. PW 17A Seizure memo of Two Pullanda Ct. Anil Kumar
37. PW 18/A Postmortem Report Dr. Bhim Singh
38. PW 18/B & C Subsequent Opinions
39. PW 21/A MLC of Brij Mohan SI Dharmvir Singh
40. PW 22/A Sketch of Iron Rod ASI Dev Raj
41. PW 22/B Arrest memo of Accused
42. PW 22/C Personal search memo
43. PW 22/C Disclosure Statement
44. PW 23/A Rukka Inspector Lalit
45. PW 23/B Site plan Joshi
46. PW 23/C Inquest Form
47. PW 23/D Stomach wash Refusal
48. PW 23/E FSL Biological Report
49. PW 23/F Serological Report
50. PW 23/G Chemical Report
St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 7 of 83
EVIDENCE:
(6) In order to prove its case the prosecution has examined as many as Twenty Three witnesses as under:
Public witnesses:
(7) PW1 Manoj Kumar is the son of the deceased and the accused.
He has deposed that he is a driver by profession and drives his own Vikram loading vehicle. According to him, he was residing at D596, Bunkar Colony, Delhi and that they are two brothers and three sisters. He has further deposed that at the time of incident, he alongwith his mother Smt. Pushpa Rani, accused Brij Mohan, his sister Rachna and Taruan were residing there. He has further deposed that his sister Rachna was admitted in MKS Hospital, Gulabi Bagh, Delhi as she was ill. He has testified that on 30.07.2011 he left his house at 5.00 AM and at that time, his parents and elder sister were present at the house. According to him, his sister Taruna was working at Nimri Colony and used to leave the house at 10.30 AM. He has testified that on that day, after finishing his work, he was coming back to his house and at about 3.30 PM when he reached at Bunkar Chowk, his father was standing there and leverage (jhaag) was oozing out from his mouth. The witness has also deposed that on seeing the condition of his father, he asked his father as to what happened on which his father had told him that his mother had consumed acid and fell down and died and on seeing her deteriorated condition, he (his father) could not stop himself and also consumed the acid to end his life as well and when he felt uneasy, he St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 8 of 83 locked the house and came outside and was going to inform the police. He has testified that on seeing the worsening condition of his father, he immediately removed him to Hindu Rao Hospital in his Vikram Tempo and got him admitted there. According to the witness, he also informed his elder brother Kamal who also reached the hospital. He further deposed that he sent his brother to the house and in the hospital, the key of the house fell down from the pants of his father. The witness has testified that he lifted the same and thereafter he also went to his house where police also reached. He has explained that there were two keys of his house, one key was lying with his parents and the other was lying with him and lock of the house was also got broken after which the gate was opened. He has further deposed that he found that his mother was lying on the bed in a pool of blood. He has proved that the police recorded his statement which is Ex.PW1/A and has voluntarily explained that police did not explain his statement to him. He has also deposed that he handed over the key which he kept with him, to the police after which the said key was turned into a cloth parcel and sealed with the seal of LJ and was seized vide memo Ex.PW1/B. He has further proved having handed over the key which was fell from the pants of his father, accused Brij Mohan in the hospital was also turned into a cloth parcel and sealed with the seal of LJ and was seized vide memo Ex.PW1/C. The witness has testified that police made investigations at the spot and dead body of his mother was removed to the BJRM hospital and he identified the dead body of his mother vide memo Ex. PW1/D. St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 9 of 83 (8) He has correctly identified the case property in the Court i.e. one key, having written 'Ayush' on one side and '76202' on the other side, as the same key which remained with him, which key is Ex.P1; another key in a key ring, having written 'Ayush' on one side and '76202' on the other side, which key was remained with his parents, which key is Ex.P2; one broken lock, having written 'Ayush Strong NauTal 76202' on it as the same which was used to apply on the gate of his house, which lock is Ex.P3. (9) The witness was found resiling from his previous statement and hence the Ld. Addl. PP for the State crossexamined the witness wherein he has denied the suggestion that in the hospital, when he lifted the key, which was fallen from the pants of his father i.e. accused Brij Mohan, he asked him about his mother on which his father replied that his mother was at home and he had killed her. The witness has further denied the suggestion that he further asked him (accused) as to why he killed his mother, on which he told him not to ask him and that he had killed her. He has also denied that his father further told him that he also consumed the acid, as he also wanted to die. However, when confronted with his statement to the police which is Ex.PW1/A the above facts were found so recorded. He had admitted that when he sent his brother Kamal to house to see the mother, at that time, he could not give the key of the lock to him as he was tense. The witness has also admitted that his mother was having injury marks on the right side of her head and has voluntarily explained that they might be due to falling on the bed after consuming the acid. He has denied the suggestion St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 10 of 83 that he tried to save the accused who was his father for the murder of his mother or that he told the police that his father confessed before him that he killed his mother.
(10) This witness has not been crossexamined by the Ld. Defence Counsel despite opportunity.
(11) PW2 Kamal Kumar is also the son of the deceased and the accused. He has deposed that he is a driver by profession and drives his own Vikram loading vehicle. According to the witness, previously he was residing at D596, Bunkar Colony, Delhi. He has further deposed that on 30.07.11 he received a telephonic call from his younger brother Manoj at about 3.303.45 PM that his father was not well and had consumed the acid and had asked him to reach Hindu Rao Hospital as he was also reaching Hindu Rao Hospital on which he reached Hindu Rao Hospital. The witness has also deposed that his brother Manoj met him in the hospital and told him that the key of the house was found with their father and that he (his father) had consumed acid. According to the witness, his father further told him that their mother had consumed acid and fell down on the bed and received injuries and subsequently died and on seeing the deteriorating condition of their mother, his father also consumed acid. The witness has also deposed that thereafter their brother sent him to the house on which he went to his house and found the main gate locked. He has testified that he also called his relative Parveen Kohli and made inquiries regarding his mother from the neighbourers but nobody knew anything. The witness has St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 11 of 83 further deposed that his sister Taruna was working at Nimri whereas his other sister Rachna was admitted in the hospital. According to him both of his sisters reached there and started searching their mother and thereafter they reached at the conclusion as their mother committed suicide in the house, after which they called the police at 100 number. He has also deposed that PCR staff reached at the spot and the lock of the house was got broken. The witness has testified that he saw that the dead body of his mother was lying on the bed in a pool of blood and some paper, chair, books were also found lying there in a burnt condition. He has further deposed that Crime Team reached the spot and took the photographs of the scene of crime. He has proved that the Investigating Officer lifted one Iron Panna, blood stained bed sheet, mattress, chunni of his mother and also lifted plastic water bottle, chair and match box which were converted into pullandas and sealed with the seal of LJ after which the seven parcels were taken into possession vide memos Ex.PW2/A, PW2/B, PW2/C, PW2/D and Ex.PW2/E. The witness has further deposed that the Investigating Officer also lifted the blood stained pieces of bed and converted the same into sealed parcel and seized vide memo Ex.PW2/F. According to the witness, he also produced broken lock to the Investigating Officer, which was also turned into cloth parcel and sealed with the seal of LJ and seized vide memo Ex.PW2/G. The witness has testified that the Investigating Officer also prepared the site plan of the spot and recorded his statement. According to him, the dead body of his mother was removed to the hospital St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 12 of 83 on 31.07.2011 and he he identified the dead body of his mother vide memo Ex.PW2/H. He has further deposed that after postmortem the dead body of his mother Pushpa Rani was handed over to him vide memo Ex.PW2/J. (12) The witness has correctly identified the case property in the Court i.e. one broken lock with words 'Ayush Strong Nau Tal 76202' written on it which lock is Ex.P3; one mattress (Rui Gadda) and one bed sheet both having dirty brownish stains, which are Ex.P4 and Ex.P5 respectively; plastic bottle having label of 'Dabur Gulabari' another plastic bottle labeling thereon Rose Water, broken glass of cold drink bottle pieces, burnt plastic pieces, plastic chair/ stool pieces, burnt books and papers and a broken matchbox, which are Ex.P6 collectively; transparent plastic bottle containing some yellowish coloured liquor (acid) which is Ex.P7; one iron rod (Paana)having rusty stains which is Ex.P8; one chunni of green, blue and white colour having flowers design which is Ex.P9 and two pieces of side portion of wooden bed which are Ex.P10 collectively. (13) Since the witness was found resiling from his previous statement given to the police hence, he witness was crossexamined by the Ld. Addl. PP for the State wherein the witness has denied the suggestion that he had told the police in his statement recorded U/s. 161 Cr. P.C. that on inquiry his brother told him that his father i.e. accused Brij Mohan had told him that his mother was present in the house and that he (his father) had killed his mother. However, when confronted with his statement Ex.PW2/X the said St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 13 of 83 fact was found recorded. The witness has also denied the suggestion that he told the police in his statement that on hearing that, he and his brother Manoj became perplexed. However, when confronted with his statement Ex.PW2/X the said fact was found so recorded. He has admitted that he asked his brother Manoj to remain with his father accused Brij Mohan whereas he himself went to his house to see his mother. The witness has also denied the suggestion that he told the police in his statement that he also told his relative Parveen Kohli about the said incident, which was told by his father about killing of his mother; that he was confident that his father had killed his mother and after killing, he locked the door from outside; that his father accused Brij Mohan killed his mother, as told by his brother Manoj in the hospital. However, when confronted with his statement Ex.PW2/X the above facts found so recorded. The witness has voluntarily explained that on seeing the condition of room, he was confident that his mother consumed the acid, fell down and received injuries on her person. He has denied the suggestion that he was deposing falsely to save the accused being his father.
(14) This witness was not crossexamined by the Ld. Defence Counsel despite opportunity.
(15) PW3 Smt. Taruna is the daughter of the deceased and the accused. She has deposed that they were two brothers namely Kamal and Manoj and three sisters i.e. she herself, Indu and Rachna and at the time of incident, they were residing at B590, Bunkar Colony, Bharat Nagar, Delhi. St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 14 of 83 According to the witness, her eldest brother Kamal, sister Rachna and Indu are married and her both sisters namely Rachna and Indu were living at their matrimonial houses at Tilak Nagar and Bhopal respectively whereas her elder brother Kamal was living with his wife and children at Gulabi Bagh. She has further deposed that at the relevant time at Bunkar Colony, she, her brother Manoj, her mother Pushpa Rani (deceased)) and her father Brij Mohan accused were residing. She further deposed that her younger sister Rachna was admitted in NKS Hospital Gulabi Bagh for the last about 10 days, prior to the incident. She has further deposed that her brother Manoj used to ply Vikram Tempo and used to leave the house early at about 5.00 AM and used to leave for her job at about 10.00 or 10.30 AM. The witness has testified that on 30.07.2011 as usual, she and her brother left for their job after leaving their parents at home and at about 4.00 or 4.30 PM she received a telephonic call from her brother Manoj that he was taking their father to hospital and she was asked to go home to take her mother and to reach hospital. According to her, when she reached at her house, was found the house locked on which she contacted Manoj on phone and told him that the house was lying locked and thereafter her brother asked to her to see and wait for their mother. She has also deposed that after about two or four hours, she received a telephonic call of her brother Kamal who asked her to remain at house. The witness has further deposed that her younger sister Rachna also came there after getting discharged from hospital and her bua namely Smt. Raj also came there and thereafter her St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 15 of 83 Fufaji made a call to police. The witness has also deposed that police reached the spot and broke open the lock and thereafter they came to know that their mother found dead and her dead body was found in the house. She has also deposed that police made some inquiries from her, but her statement was not recorded. According to her, she did not come to know from Manoj that for what purpose he had taken her father to hospital. The witness has testified that she did not come even later on the purpose of taking their father to the hospital by Manoj.
(16) Since the witness has found resiling from her previous statement given to the police, therefore she was examined by the Ld. Addl. PP for the State wherein the witness has denied the suggestion that police recorded her statement on 31.07.11. She has however admitted that on 30.07.2011 at about 3.30 or 3.45 PM she received phone of her brother Manoj who told her that her father had consumed acid and he had got him admitted at Hindu Rao Hospital. The witness has also denied the suggestion that she had told the Investigating Officer in her statement that her brother Manoj told her that at the time of taking their father to the hospital, their father i.e. accused told that he had killed their mother and she was lying locked in the room. However, when confronted with her statement Mark PW3/A, the above fact was found so recorded. She has also denied the suggestion that she was suppressing the above fact in order to save the accused, who is her father. The witness has also denied the suggestion that the contents of Mark PW3/A were recorded by the Investigating Officer on her dictation and read St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 16 of 83 out to her.
(17) She has not been crossexamined by the Ld. Defence Counsel despite opportunity given.
(18) PW5 Parveen Kohli is the neighbour of the deceased who has deposed that on 30.07.2011 he was present at his house at Karol Bagh when he received a call from Kamal son of accused Brij Mohan in the evening hours and he (Kamal) told him that accused had consumed acid and had been shifted to Hindu Rao Hospital. He has further deposed that he also informed him that his mother was not traceable and asked him to come there on which he reached there and found that the house was locked. The witness has proved having made a call to 100 number from his mobile phone. According to the witness, PCR came there and the lock of the house was got broken after which they went upstairs and found the dead body of Pushpa, wife of accused, was lying there on bed. He has also deposed that there was an injury mark on the left hand side of head. The witness has further deposed that the blood was lying on the bed and ants were also there on the body. He has testified that one plastic bottle having yellowish liquid, some burnt currency notes and one iron rod, having some blood was lying at the spot. He has also deposed that police took the dead body in their custody and he was relieved thereafter. The witness has correctly identified the case property i.e. one iron rod/ panna which is Ex.P8. (19) In his crossexamination by the Ld. Defence Counsel the witness has deposed that he did not meet the police after 30.07.2011 and was St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 17 of 83 interrogated by inspector Lalit Joshi on 30.07.2011. He has also deposed that police did not take his statement in writing. According to the witness, he stayed there for whole night on that day, on the street and has voluntarily explained that police officials were busy in their investigation on the first floor where they were not allowed to go. The witness has testified that police remained there for more than four/ five hours. According to him, PCR reached at the spot after 3540 minutes of his making call. He has denied the suggestion that he did not visit the house of accused on 30.07.2011 or that due to this reason, he was unable to tell about the police proceedings done on that day. He has further deposed that police did not seal the rod/ panna in his presence. He has denied the suggestion that he did not receive any phone call from Kamal.
Witnesses of Medical Record:
(20) PW18 Dr. Bhim Singh has proved that on 31.07.2011 at about 1:00 PM he conducted postmortem examination on the body of Smt. Pushpa Devi, W/o Sh. Brij Bhushan on the request of Inspector Lalit Joshi, Police Station Bharat Nagar, Delhi vide PM No.703/11. According to him, on examination he found following external antimortem injuries on the body of the deceased:
1. Lacerated wound 6cm x 1.5cm into bone deep right side of face just front of ear, obliquely placed extending from right temporal area upto maxillary sinus.
St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 18 of 83
2. Ligature mark parchment like surrounding haemorrhages, transversely placed around the neck just at the level of thyroid measuring 16 cm in length and 2cm in width.
3. Blackening of right eye was present.
4. Reddish conclusion with fracture dislocation of both right forearms present.
5. Lacerated wound 1cm x 0.5 cm x 0.8cm back of left hand.
6. Contused abrasion 10cm x 2.2 cm front of left arm.
(21) According to the witness, on internal examination of Head and Neck it shows a fusion of blood present in an area of 4 cm x 2cm over left parietal region, Skull bones shows a depressed fracture of right maxilla extended upto base of brain and mandible, Brains shows diffuse SDH and SAH, Neck structure shows effusion of blood below ligature both sides of neck, thyroid cartilage, muscle and tissues and all other organs were pale. (22) The witness has proved having opined that death was due to combine effect of coma, shock and asphyxia consequent upon head injury and ligature strangulation, all the injuries were ante mortem, fresh in duration; Injury No. 1, 3, 4, 5 and 6 could be caused by hard blunt object and Injury No. 2 was caused by ligature pressure by a cloth. According to the witness, after postmortem examination he handed over the dead body, clothes of the deceased and blood in gauze piece in sealed condition with sample seal of the department to the police. He has St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 19 of 83 proved his detailed postmortem report in this regard which is Ex.PW18/A. The witness has further deposed that on 01.08.2011 he received an application from Inspector Lalit Joshi for subsequent opinion regarding weapon of offence along with one sealed packet duly sealed with the seal of LJ. According to the witness, on opening the packet one greenish printed cotton chunni with white patches was found measuring 180 cm in length and 102 cm in width. He has proved that after examining the aforesaid chunni he gave his opinion that injury No. 2 mentioned in postmortem report Ex.PW18/A could be possible by above said chunni, which subsequent opinion is Ex.PW18/B. (23) The witness Dr. Bhim Singh has further deposed that on 31.07.2011 he received an application from Inspector Lalit Joshi along with one sealed packet duly seal with the seal of LJ for subsequent opinion regarding weapon of offence and on opening the packet one L shaped iron rod (panna) used for opening the wheels was found as described in diagram prepared by him in his subsequent opinion. He has proved having opined that the injuries No. 1, 3, 4, 5 and 6 mentioned in postmortem report No. 703/11 Ex.PW18/A could be caused by above said weapon, which opinion is Ex.PW18/C. (24) He has correctly identified the case property i.e. L shape iron rod (panna) which is Ex.P8 and the greenish printed cotton chunni with white patches which is Ex.P 9.
St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 20 of 83 (25) On a specific Court Question the witness has clarified that in his estimation the trauma injury was probably caused first followed by asphyxia after the injured must have become unconscious because the trauma injury was very deep i.e. till the base of the skull. (26) In his crossexamination by the Ld. Defence Counsel the witness has denied the suggestion that he had given the above report with regard to the cause of death and his opinion on the weapon of offence in a mechanical manner without application of mind on the asking of the Investigating Officer.
Police/ official witnesses:
(27) PW4 HC Suman Prasad is a formal witness being the Duty Officer who has deposed that on 30.07.2011 he was posted as Duty Officer at Police Station Bharat Nagar from 4.00 PM to 12.00 Midnight and on that day at about 11.30 PM HC Tribhuvan Nath came to him and handed over rukka sent by inspector Lalit Joshi for registration of FIR. The witness has further deposed that he got recorded the FIR through Computer Operator, which is a correct version of rukka, copy of which is Ex.PW4/A. He has also proved having made an endorsement on the rukka, which is Ex.PW4/B. He has not been crossexamined by the Ld. Defence Counsel despite opportunity and hence his testimony has gone uncontroverted. (28) PW6 SI Matadin is the Incharge, Mobile Crime Team, North West District, Pitam Pura, Delhi and has deposed that on 30.7.2011 at about St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 21 of 83 8.00 PM he received information from Control room N/W District to reach at B596, Bunkar Colony, 1st Floor, Bharat Nagar, Delhi on which he along with his team and photographer reached the spot where SI Dharambir and SHO Police Station Bharat Nagar Inspector Lalit Joshi met them along with other staff. He has further deposed that when they reached there they found a dead body of a female, lying in a pool of blood on the bed. The witness has also deposed that there was an injury mark on the head of the dead body and blood was also lying on the bed sheet. According to him, on the floor an L shaped iron Paana, stained with blood was lying. He has further deposed that one bottle of plastic having yellowish acid like content/ liquid was lying there and some burnt clothes, currency notes and one broken match box was lying there. The witness has testified that he inspected the spot and photographer of Crime Team took photographs of the Scene of Crime from different angles. He has proved having prepared his report which is Ex.PW6/A, which he handed over to the Investigating Officer.
(29) In his crossexamination, by the Ld. Defence Counsel the witness has deposed that he does not remember whether Paana was blood stained or not. He is unable to tell whether such type of Paana was easily available in the market or not. He has denied the suggestion that no such Paana was lying at the spot or that the Paana in question was planted upon the accused. The Paana was shown to the witness which was having rust on it and blood was not visible on that. He has denied the suggestion that he did not visit the spot or that he did not join the investigation or that the St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 22 of 83 report Ex.PW6/A was prepared while sitting in the Police Station at the instance of the Investigating Officer.
(30) PW7 ASI Tribhuvan Nath Yadav has deposed that on 30.07.11 he was posted at Police Station Bharat Nagar as Head Constable and on that day, he received an information that a murder has been committed at H. No. 596, First Floor, Bunkar Colony, Delhi on which he along with ASI Devraj and ASI Jagbir Singh reached the spot where many public persons were found gathered. He has further deposed that on the directions of SHO, he obstructed the public persons to enter inside the house. According to the witness, Investigating Officer/ SHO Inspector Lalit Joshi handed over him a rukka for registration of FIR on which he reached at Police Station and handed over the original rukka to Duty Officer HC Suman Prasad who got registered the case. The witness has also deposed that after registration of the case he handed over the original rukka and computerized copy of FIR to him on which he brought the same and reached the spot and handed over the same to the Investigating Officer who recorded his statement. (31) In his crossexamination by the Ld. Defence Counsel the witness has deposed that he reached at the spot at about 8.00 PM initially but he does not remember whether he made departure entry before leaving the Police Station or not. He has denied the suggestion that he did not make any such entry, because he had not gone to the spot. He has further deposed that he left the spot along with rukka at about 11.20 PM and reached the Police Station within ten minutes on foot. He has also deposed that he did St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 23 of 83 not make any arrival entry when he came back to Police Station along with rukka. The witness has testified that he did not make any departure entry before leaving the Police Station after registration of FIR. He has denied the suggestion that he never joined the investigation or that he never went to the spot.
(32) PW8 Inspector Pardeep Kumar Paliwal has deposed that on 30.11.2011 he was looking after the work of SHO Police Station Bharat Nagar and the present case file was assigned to him. He has further deposed that he had gone through the file on which he came to know that Incharge of Commander7, PCR Van was not examined by the previous Investigating Officer. According to the witness, thereafter he recorded statement of HC Anant Ram, who was Incharge of Commander7, PCR Van. He has proved that after completion of investigation, he filed the chargesheet against the accused Brij Mohan.
(33) In his crossexamination by the Ld. Defence Counsel the witness has deposed that he recorded the statement of HC Anant Ram in the afternoon at Model Town Zone. After having gone through the police file the witness has stated that there was no DD entry, regarding his visit to PCR Zone, Model Town.
(34) PW9 Ct. Dharmender Kumar is a formal witness being the Duty Constable at Hindu Rao Hospital. He has been examined by way of affidavit which is Ex.PW9/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 30.7.2011 at 4:05 PM the patient Brij Mohan St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 24 of 83 was got admitted in the hospital with the history of consuming acid, on which he lodged an information at Police Station vide Dd No. 40B. This witness has not been crossexamined by the Ld. Defence Counsel and hence his testimony has gone uncontroverted.
(35) PW10 HC Anant Ram is a formal witness being the PCR Van Incharge who has been examined by way of affidavit which is Ex.PW10/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the copy of the PCR Form which is Ex.PW10/A and the relevant WT message sent by him finds incorporated at point bracketed X. (36) In his crossexamination, the witness has deposed that the call was received at around 7:21 PM on which he reached the spot within five minutes. According to him, when he reached the spot he only met Kamal and around 2025 public persons there and it was the complainant Kamal who told him that his father had consumed something and had been hospitalized and his mother was inside the room which was locked and hence in his presence he broke the lock of the room where they found an old lady lying on the bed and was already dead. He has further deposed that in the meanwhile SI Dharamvir had also reached the spot within a gap of two three minutes of his reaching there and they hardly remained there for about ten minutes and thereafter went away.
(37) PW11 Ct. Subhash is a formal witness being the Crime Team Photographer and has been examined by way of affidavit which is Ex.PW11/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 25 of 83 proved having visited the spot of incident and having taken the photographs of the spot which are Ex.PW11/A1 to Ex.PW11/A13 and having prepared the CD of the same which is Ex.PW11/B. In his crossexamination the witness has deposed that the photographs had been taken by him by the digital camera and the CD of the same had been got prepared from a private lab in his presence.
(38) PW12 Ct. Krishan is a formal witness being the Special Messenger who has been examined by way of affidavit which is Ex.PW12/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having delivered the special report to Joint Commissioner of Police, Addl. Commissioner of PoliceII, Deputy Commissioner of Police (North West), Ld. ACMM and ACP Ashok Vihar. This witness has not been cross examined by the Ld. Defence Counsel despite opportunity and hence his testimony has gone uncontroverted.
(39) PW13 Ct. Kapil is a formal witness who has been examined by way of affidavit which is Ex.PW13/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved have taken the seven pullandas along with another pullanda from the MHCM vide RC No. 66/21/11 and R/C No. 67/21/11, copies of which are Ex.PW13/A and Ex.PW13/B respectively and deposited the same with the FSL vide receipts Ex.PW13/C and Ex.PW13/D respectively. This witness has not been crossexamined by the Ld. Defence Counsel despite opportunity and hence his testimony has gone St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 26 of 83 uncontroverted.
(40) PW14 HC Sanjay is also a formal witness being the MHCM who has been examined by way of affidavit which is Ex.PW14/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the entry in register No. 19 vide entry No. 309 copy of which is Ex.PW14/A(running into three pages); RC No. 66/21/11 and R/C No. 67/21/11, copies of which are Ex.PW13/A and Ex.PW13/B respectively; receipts of FSL vide Ex.PW13/C and Ex.PW13/D respectively. He has been crossexamined by the Ld. Defence Counsel but nothing much has come out of the same. (41) PW15 SI Manohar Lal is also a formal witness being the Draftsman who has been examined by way of affidavit which is Ex.PW15/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having inspected the spot of incident and thereafter having prepared the scaled site plan which is Ex.PW15/A. He has been crossexamined by the Ld. Defence Counsel but nothing much has come out of the same. (42) PW16 Ct. Rakesh Kumar has deposed that on 30.07.2011 he was on Duty from 4 PM to 12 midnight at Police Station Bharat Nagar as DD writer and on that day he had recorded DD No. 40B which was information from the Bara Hindu Rao hospital copy of which is Ex.PW16/A and 42 B which was a PCR call copy of which is Ex.PW16/B. This witness has not been crossexamined by the Ld. Defence Counsel despite opportunity and hence his testimony has gone uncontroverted. St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 27 of 83 (43) PW17 Ct. Anil Kumar has deposed that on 30.07.2011 he was posted at Police Station Bharat Nagar and on that day he along with SI Dharamvir Singh on receipt of DD No. 40B went to HRH hospital where SI Dharmavir Singh obtained the MLC of the injured Brij Mohan who had been declared unfit for statement as he had consumed some poisonous substance, hence he along with SI Dharamvir returned to the Police Station. He has further deposed that while they were outside the Police Station they received another call vide DD No. 42 B at 7:25 PM which was related to a quarrel at B596, Bankar colony on which they they reached the said address there they met the PCR official HC Anant Kumar and large number of the public persons standing outside the house. According to the witness, when they went to the first floor of the house they found the dead body of an old age lady lying on the bed which body was smeared with blood, the head of the body was towards the east and the legs were towards the west. The witness has also deposed that on the directions of the Investigating Officer he went downstairs to control the public and remained there till about 10:30 PM. He has testified that at around 10:30 PM SI Dharamvir directed him to take the dead body of the lady to BJRM Hospital on which he took the dead body to the BJRM hospital mortuary where he deposited the body at about 11:05 PM vide token number 92 and he remained at the mortuary during the night. The witness has further deposed that on the next day i.e. 31.07.2011 the postmortem was conducted after which the doctor handed over to him two sealed pullandas duly sealed with the seal of St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 28 of 83 the hospital and the sample seal and he handed over the said pullandas to Inspector Lalit Joshi who thereafter prepared the seizure memo of the same vide Ex.PW17/A. According to the witness, his statement was recorded in the mortuary itself and the dead body of the lady was handed over to her two sons vide Ex.PW2/J. He has proved that till the body remained in his possession and in the hospital the same was not tampered. (44) In his crossexamination by the Ld. Defence Counsel the witness has deposed that in his presence SI Dharmavir did not interrogate any person including family members present at the house and has voluntarily explained that he was immediately sent at the ground floor to control the crowd. He has admitted that in his presence no proceedings took place and has voluntarily explained that he was busy in controlling the crowd outside the house on the ground floor. According him, when he took the dead body to the hospital mortuary no family member accompanied him. The witness has also admitted that on the next day when the dead body of the deceased was handed over to her sons after the postmortem, the sons were not interrogated by Inspector Lalit Joshi in his presence. He has further admitted that in the hospital except for receiving the pullandas and handing over the body to the relative, no other proceedings took place in his presence.
(45) PW19 Inspector Ashok Kumar has deposed that on 14.11.11 he was looking after the work of SHO Police Station Bharat Nagar temporarily and on that day he recorded the statement of Ct. Dharmender in the present St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 29 of 83 case. He has further deposed that on 28.11.11 he was relieved from Police Station Bharat Nagar and handed over the case file to the MHC (R). (46) In his crossexamination by the Ld. Defence Counsel the witness has admitted that he did not carry out any investigations in that case except for recording the statement of Ct. Dharmender. (47) PW20 Inspector Brij Pal Singh has deposed that on 8.10.2011 he was posted as SHO Police Station Bharat Nagar and on that day the investigations of the case was marked to him. He has further deposed that on 17.10.2011 he along with Inspector Lalit Joshi and Draftsman SI Manohar Lal went to the spot where the draftsman took rough notes for preparing the scaled site plan after which he recorded the statement of SI Manohar Lal. According to the witness, on 27.10.2011 he sent the exhibits of the present case to FSL through Ct. Kapil vide RC No. 66/21/11 and 67/21/11. He has further deposed that he recorded the statement of Ct. Kapil and the MHC(M) HC Sanjay. He has testified that thereafter, he was transferred from the police station and he handed over the case file to the MHC (R). He has been crossexamined by the Ld. Defence Counsel but nothing much has come out of the same.
(48) PW21 SI Dharamvir Singh has deposed that on 30.7.2011 he was posted at Police Station Bharat Nagar and on that day on receipt of DD No. 40B he along with Ct. Anil Kumar reached at Hindu Rao Hospital and collected the MLC of injured Brij Mohan. He has further deposed that he met the doctor who informed that the injured Brij Mohan was not fit for St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 30 of 83 making statement vide MLC which is Ex.PW21/A bearing the endorsement of doctor at point A. According to the witness, Manoj the son of Brij Mohan was also present in the hospital who informed them that his father Brij Mohan while coming to the hospital told him that he had locked his mother at home (mummy ko kamre band kar aya hoon). The witness has further deposed that thereafter, he and Ct. Anil came back and while they were near the Police Station they received DD No. 42 B that there was a jhagra / quarrel at B596, Bunkar Colony. He has also deposed that on receipt of that information they immediately reached at B596, Bunkar Colony where they saw large that number public persons had gathered outside the house. He has testified that when they went to the first floor of the house they met one Kamal S/o Brij Mohan and also one PCR Official HC Anant Ram. According to him, inside the room one aged lady was lying dead on a double bed totally smeared with blood with an injury mark on the right temple and blood was oozing out from the same. The witness has further deposed that her head was towards the west and the legs were towards the eastern direction. He has further deposed that he asked Ct. Anil to control the crowd on the ground floor and not to permit anybody to reach the first floor and he immediately informed the SHO Inspector Lalit Joshi while remained in the room. According to the witness, Inspector Lalit Joshi came to the spot after about 1520 minutes and gave information to the Crime Team and got the scene of crime/ spot inspected from the Crime Team who took photographs of the spot. The witness has testified that on St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 31 of 83 the directions of the SHO he made an application to the CMO Mortuary BJRM Hospital for conducting the postmortem of the deceased and directed Ct. Anil to take the dead body to the BJRM hospital mortuary and also handed over the application to him. He has also deposed that he then handed over the MLC of Brij Mohan to Inspector Lalit Joshi and at around 1:00 AM at night his statement was recorded by the SHO at the spot itself and he was relieved.
(49) Since the witness was not giving the complete details, leading questions were put to him by the Ld. Addl. PP for the State wherein he has admitted that he had asked the doctor on duty to provide the stomach wash / gastric lavage of Brij Mohan and has voluntarily explained that the doctor had informed him in writing that it was not possible to give the stomach wash / gastric lavage of Brij Mohan because the history was of ingestion of acid and therefore no stomach wash was done.
(50) In his crossexamination by the Ld. Defence Counsel the witness has deposed that when they reached the spot there was about 2025 public persons at the spot. According to the witness, he had only made inquiries from Manoj who was earlier in the hospital and later came to the spot. He has admitted that he came to know at the spot that apart from Manoj and Kamal there were two other sons of the deceased and one unmarried daughter but he was not sure if all of them were jointly residing in the same house. He has further deposed that he made no inquiries from other sons and daughter and has voluntarily explained that he had only met St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 32 of 83 Manoj and Kamal. The witness has also deposed that he had asked public persons if anybody seen anything but nobody came forward and states that he cannot tell the names of the public persons from whom he had made inquiries. He has testified that he did not make any inquiries from the next door of the injured and deceased with regard to the incident. The witness has admitted that when he reached the spot the PCR officials were already at the spot but has denied the suggestion that the scene of crime had been disturbed and there were public persons inside the room. He has also admitted that when he reached the spot Kamal was already present there and has voluntarily explained that Kamal informed him that he was not present in the house at the time of the incident. He has further admitted that both Manoj and Kamal were married and states that he did not find the wives of Manoj and Kamal at the house nor he made inquiries as to where they were. According to the witness, he had seen the unmarried daughter of the deceased on the ground floor but he made no inquiries from her. He has denied the suggestion that the accused had been falsely implicated in case in connivance with his sons or that instead of searching the real culprit the innocent accused had been falsely implicated in the present case. (51) PW22 ASI Dev Raj has deposed that on 30.07.2011 he was posted at Police Station Bharat Nagar and on that day Inspector Lalit Joshi called him at house No. B596, Bunkar colony, Bharat Nagar, Delhi on which he along with ASI Jagbir Singh and HC Tribhuvan left the Police Station at about 8PM and reached the spot at about 8:05 PM where they met St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 33 of 83 Inspector Lalit Joshi, SI Dharmvir Singh and Ct. Anil Kumar. According to the witness, they found a dead body of an aged lady lying inside the room smeared in blood with injuries on her head/ temple. The witness has testified that Inspector Lalit Joshi called the Crime Team to the spot after which the Crime Team reached the spot and inspected the spot and took the photographs of the same. He has further deposed that the dead body of the deceased whose name they came to know as Pushpa was sent to mortuary of the BJRM hospital through Ct. Anil. The witness has proved that the blood stained chunni which was a blue and white printed chunni and the blood stained chaddar and gadda were taken into possession by the Inspector Lalit Joshi and converted into two separate pullandas i.e. one pullanda containing the chunni which pullanda was prepared with the help of white cloth whereas the other pullanda containing the chaddar and gadda which pullanda was prepared with the help of plastic bag/ borri which pullandas were duly sealed with the seal of LJ. He has testified that on the wood of the double bed towards the head side, blood stains were found on the same on which Inspector Lalit Joshi opened the pieces of wood from the double bed and converted the same into a pullanda with the help of the plastic bori which he sealed with the seal of LJ. According to him, there was a plastic bottle lying on the floor with yellow liquid inside it which bottle was taken into possession and sealed with the seal of LJ. The witness has further deposed that a large number of articles were lying scattered on the floor i.e. burn books/ papers, plastic legs either of a chair St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 34 of 83 or a stool in a burnt condition, two bottles of rose water, match box of ship, one broken Pepsi bottle pieces and ashes. According to him, the Investigating Officer Inspector Lalit Joshi collected the same and converted the same into pullandas and sealed the same with the seal of LJ. He has testified that one L shape iron rod/ panna was also lying in the corner of the room which was converted into a pullanda with the help of white cloth and sealed with the seal of LJ. The witness has proved that Kamal the son of the deceased handed over to Inspector Lalit Joshi a broken lock which had been put on the room and broken in the presence of the PCR officials, which lock was also converted into a pullanda with the help of cloth and sealed with the seal of LJ. According to the witness, Manoj the other son of the deceased handed over two keys to the Investigating Officer Inspector Lalit Joshi claiming that they were the keys of the lock which had broken, one key remained with him and one with his father. The witness has proved that two separate pullandas were prepared of each key with the help of the cloth and sealed with the seal of LJ and a total number of nine pullandas were prepared at the spot. He has testified that the Investigating Officer prepared the seizure memos of the same and seized all the above said articles. The witness has proved the seizure memo of lock which is Ex.PW2/G; seizure memo of key which was in the possession of Manoj which is Ex.PW1/B; seizure memo of key which was in the possession of Brij Mohan which is Ex.PW1/C; seizure memo of wooden back of double bed which is Ex.PW2/F; seizure memo of chunni which is Ex.PW2/A; St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 35 of 83 seizure memo of chaddar/bed sheet and gadda/mattress which is Ex.PW2/B; seizure memo of L shape iron rod/ Panna which is Ex.PW2/C; seizure memo of bottle having acid like substance which is Ex.PW2/D and seizure memo of two bottles of rose water, Pepsi bottle pieces, leg of plastic stool/chair in burnt condition along with red color cloth, burn pieces of papers/book, ashes, match box of ship which is Ex.PW2/E. The witness has also proved that the Investigating Officer Inspector Lalit Joshi prepared the sketch without scale of the L shape iron rod/ panna which sketch is Ex.PW22/A. (52) The witness ASI Dev Raj has further deposed that on 06.09.2011 he along with Inspector Lalit Joshi went to house No. B596, Bunkar Colony where accused Brij Mohan met them. He has also deposed that Inspector Lalit Joshi interrogated the accused Brij Mohan and thereafter arrested him vide arrest memo Ex.PW22/B and thereafter his personal search was conducted vide memo Ex.PW22/C. According to him, the accused made his disclosure statement vide Ex.PW22/D on being interrogated.
(53) He has correctly identified the accused Brij Mohan in the Court and also identified the case property i.e. one key, having written 'Ayush' on one side and '76202' on the other side, as the same key which remained with Manoj, which key is Ex.P1; another key in a key ring, having written 'Ayush' on one side and '76202' on the other side, which key was remained St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 36 of 83 with the accused Brij Mohan which key is Ex.P2; one broken lock with words 'Ayush Strong Nau Tal 76202' written on it which lock is Ex.P3; one mattress (Rui Gadda) and one bed sheet both having dirty brownish stains, which are Ex.P4 and Ex.P5 respectively; plastic bottle having label of 'Dabur Gulabari' another plastic bottle labeling thereon Rose Water, broken glass of cold drink bottle pieces, burnt plastic pieces, plastic chair/ stool pieces, burnt books and papers and a broken matchbox, which are Ex.P6 collectively; transparent plastic bottle containing some yellowish coloured liquor (acid) which is Ex.P7; one iron rod (Paana)having rusty stains which is Ex.P8; one chunni of green, blue and white colour having flowers design which is Ex.P9 and two pieces of side portion of wooden bed which are Ex.P10 collectively.
(54) In his crossexamination the witness has deposed that he remained at the spot till about 6 AM i.e. 31.07.2011 and the Investigating Officer did not interrogate any public witness in his presence. He has further deposed that 2030 persons were gathered in front of the house/ spot on the road and despite efforts they could not receive any information from the public persons. According to the witness, the Investigating Officer wore gloves while seizing the panna and no chance prints were found on any case property by the Crime Team. He has denied the suggestion that in fact no chance prints were taken and that is why no chance prints were found on any object/case property. The witness has also deposed that no neighbor St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 37 of 83 was inquired or investigated by the Investigating Officer in his presence and has voluntarily explained that it was night time. According to him, the Investigating Officer did not record the statement of daughter of accused in his presence nor did he (Investigating Officer) inquire anything from the daughter of accused in his presence. He has further deposed that he left the spot at 6 AM along with the Investigating Officer and all the police officials. The witness has testified that the rukka was sent at 11:20 PM through HC Tribhuvan but he is unable to tell the time of returning of HC Tribhuvan along with copy of FIR. According to the witness, first of all the Investigating Officer prepared the seizure memo of chunni, thereafter of chaddar/bed sheet and gadda/mattresses, thereafter of wooden pieces of bed, thereafter bottle of acid, thereafter of brunt articles, thereafter panna, thereafter of lock and thereafter of both keys. He has denied the suggestion that he never visited the spot or that none of the proceedings as deposed by him took place in his presence or that he signed all the documents later in the police station on the asking of his senior officers. (55) PW23 Inspector Lalit Joshi is the Investigating Officer of the present case who has deposed that on 30.07.2011 he was posted at Police Station Bharat Nagar as SHO and on that day he was on evening patrolling duty with driver HC Anil Kumar in government vehicle No. DL1CJ7426 when ASI Dharamvir informed him through wireless regarding a murder at B596, Bunkar Colony. According to the witness, on this he reached at the spot i.e. B596, Bunkar colony where he met ASI Dharamvir, Ct. Anil and St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 38 of 83 fourfive public persons and the PCR staff. The witness has also deposed that at the first floor of the said premises i.e. at B596, Bunkar colony, he found dead body of one lady, whose name later on revealed as Pushpa W/o Brij Mohan with deep wound on the temporal region of the head and blood was found on bed sheet and on wooden part of the head side of the bed blood spots were there. According to him, one bottle having acid type liquid was present under the bed; the glass pieces of Pepsi bottle was also found there; one blood stained iron panna was found lying near the wall; some papers and religious books were lying on the floor; some plastic pieces along with the red colored pooja cloth all of which were in semi burnt condition were lying on the floor; a match box containing two match sticks were also found; two bottles, one with the words gulab jal written on the same and other with the words gulabari written on the same were lying and one chunni was lying near the dead body. The witness has further deposed that the Crime Team was called at the spot and the spot was got inspected and was got photographed and in the meantime ASI Dev Raj, ASI Jagbir Singh and HC Tribhuvan Nath also reached at the spot. He has deposed that the dead body was shifted to BJRM hospital, mortuary in the safe custody of Ct. Anil Kumar. He has proved having recorded the statement of Manoj Kumar, son of deceased Pushpa vide Ex.PW1/A and having prepared the rukka vide Ex.PW23/A which he handed over to HC Tribhuvan Nath for registration of the case who went to the Police Station. He has further deposed that thereafter he prepared the site plan vide St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 39 of 83 Ex.PW23/B and recorded the statements of the crime team officials. He has proved that the blood stained pieces of the double bed were taken into possession after keeping the same in the plastic white bag and turning the same into pullanda and sealed the same with the seal of LJ and seized the same vide seizure memo Ex.PW2/F; the chunni lying near the dead body on the bed was also taken into possession after turning the same into a pullanda and sealed the same with the seal of LJ and seized the same vide seizure memo Ex.PW2/A; the bed sheet and the gadda were taken into possession after keeping the same in a plastic bag and sealed the same with the seal of LJ and seized the same vide seizure memo Ex.PW2/B; the iron panna found on the spot was measured and its sketch Ex.PW22/A was prepared after which it was taken into possession after turning the same into a pullanda and sealed the same with the seal of LJ and seized the same vide seizure memo Ex.PW2/C; bottle having acid type liquid was taken into possession after turning the same into pullanda and sealed with the seal of LJ and seized the same vide seizure memo Ex.PW2/D; one plastic bottle on which Dabur Gulabari was written having some white liquid, one white bottle on which rose water was written having some white liquid, glass pieces of Lehar Pepsi bottle, burnt plastic chair/stool sticked with red cloth, some burnt papers/ pieces of books with ash and one match box of Ship brand having two unburnt broken match sticks in white panni were lifted from the spot, kept in a white plastic katta, sealed with the seal of LJ and St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 40 of 83 taken into possession vide seizure memo Ex.PW2/E. The witness has testified that HC Tribhuvan after registration of the case returned to the spot and handed over to him copy of the FIR and original rukka after which he recorded the statement of HC Tribhuvan. According to the witness, ASI Dharamvir handed over the MLC of accused Brij Mohan i.e. husband of deceased Ex.PW21/A to him and he recorded the statement of ASI Dharmavir. The witness has also deposed that Kamal son of accused Brij Mohan handed over to him an iron lock with broken marks on which 'Ayush strong nautal, 76202' was written, which lock was taken into possession after turning the same into pullanda, sealed with the seal of LJ and seized vide memo Ex.PW2/G. He has proved that Manoj son of accused Brij Mohan produced key of the house which was usually kept by him on one side of which key "Ayush" was written and on the other side of the key '76202' was written, after which the same was taken into possession after turning the same into pullanda and sealed the same with the seal of LJ vide memo Ex.PW1/B. The witness has also deposed that Manoj son of accused Brij Mohan also produced another key of the house which was usually kept by Brij Mohan and which had fallen down from the pocket of pant of Brij Mohan. According to the witness, on one side of the key "Ayush" was written and on the other side of the key '76202' was written, and the said key was also taken into possession after turning the same into pullanda and sealed the same with the seal of LJ vide memo Ex.PW1/C. He has proved having recorded the statements of witnesses Kamal, Parveen Kohli, Taruna, St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 41 of 83 Manoj and ASI Dev Raj after which he returned to the police station where he deposited the case property with MHC(M).
(56) According to the Investigating Officer in the morning i.e. 31.07.2011 he went to the BJRM Hospital along with ASI Dev Raj and SI Vijay Kumar and carried out the inquest proceedings and prepared the inquest papers Ex.PW23/C collectively consisting of five pages. He has further deposed that the dead body was identified by Manoj Kumar and Kamal vide identification statement Ex.PW1/D and Ex.PW2/H after which the dead body was subjected to postmortem examination and after postmortem examination the dead body was handed over to the relatives vide receipt Ex.PW2/I. The witness has proved having obtained the subsequent opinion regarding the weapon of offence i.e. iron panna and chunni vide Ex.PW18/C and Ex.PW18/B respectively. The witness has testified that thereafter he went to the Hindu Rao hospital and inquired about the condition of accused Brij Mohan who was admitted there who was unfit and doctor told him that he had consumed some liquid suspected to be acid/ poison. According to him, Ct. Anil handed over to him the exhibits along with two sample seals which was handed over to him by the concerned doctor after postmortem examination of deceased Pushpa which were taken into possession vide seizure memo Ex.PW17/A. He has testified that the stomach wash of the accused could not be obtained being refused by the concerned doctor which refusal is Ex.PW23/D. The witness has proved that the accused Brij Mohan was arrested on 06.09.2011 vide St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 42 of 83 arrest memo Ex.PW22/B; his personal search was carried out vide memo Ex.PW22/C and the disclosure statement of the accused which is Ex.PW22/D. According to him, the accused was produced before the concerned court and was sent to Judicial Custody. He has testified that he obtained the FSL results which are Ex.PW23/E, Ex.PW23/F and Ex.PW23/G (FSL reports are admitted by the accused).
(57) He has correctly identified the accused Brij Mohan in the Court and also identified the case property i.e. one key, having written 'Ayush' on one side and '76202' on the other side, as the same key which remained with Manoj, which key is Ex.P1; another key in a key ring, having written 'Ayush' on one side and '76202' on the other side, which key was remained with the accused Brij Mohan which key is Ex.P2; one broken lock with words 'Ayush Strong Nau Tal 76202' written on it which lock is Ex.P3; one mattress (Rui Gadda) and one bed sheet both having dirty brownish stains, which are Ex.P4 and Ex.P5 respectively; plastic bottle having label of 'Dabur Gulabari' another plastic bottle labeling thereon Rose Water, broken glass of cold drink bottle pieces, burnt plastic pieces, plastic chair/ stool pieces, burnt books and papers and a broken matchbox, which are Ex.P6 collectively; transparent plastic bottle containing some yellowish coloured liquor (acid) which is Ex.P7; one iron rod (Paana)having rusty stains which is Ex.P8; one chunni of green, blue and white colour having flowers design which is Ex.P9; two pieces of side portion of wooden bed which are St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 43 of 83 Ex.P10 collectively and one salwar and one ladies shirt having dirty brown stains belonging to the deceased which are collectively Ex.P11. (58) In his crossexamination by the Ld. Defence Counsel the witness has deposed that he reached at the spot at about 7:407:45 PM and remained there till about 5:006:00 AM. He has further deposed that he made his arrival entry on return to the police station but that was not with the charge sheet. He has admitted that no chance prints were taken from the objects/case property at the spot and has voluntarily explained that crime team inspected the crime scene and did not find any chance prints. He has further deposed that he used the polythene while lifting the exhibits including panna from the spot but he had not mentioned the same in the record. According to him, the bottle containing acid was filled upto 1/4th or 1/5th to its capacity. He has admitted that no call details of the sons and daughters of the accused and deceased were verified by him. He has further deposed that he asked Manoj and Kamal about their whereabouts at the time of the incident on which Kamal told him that he was present at his house but he did not remember the location of his house and states it was different to the present house whereas Manoj told that on that day around 3:30 PM he was on his way to his house and met his father on the gate of Bunkar colony. The witness has admitted that he did not check out or confirm the location of Manoj from his mobile phone. He has denied the suggestion that he did not ask about any dispute between the family members with accused or between the accused and the deceased and has St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 44 of 83 voluntarily explained that he verified from Manoj, Taruna and their relative Parveen Kohli about the same. The witness has admitted that the fact he verified about the dispute of accused with family members or deceased from Manoj, Taruna and their relative Parveen Kumar had not brought on record by him. He has further deposed that he asked Manoj, Taruna and Kamal if anything was missing from the house but he did not mention the said fact in the record file of the case. He has denied the suggestion that the accused did not give any disclosure statement or it had been written of his own. The witness has admitted that he did not record statement of any neighbor and has voluntarily explained that he did local inquiries. According to the Investigating Officer he did not hand over the seal to anybody and the same remained with him during whole investigations and has voluntarily explained that he did not exactly remember if he had given seal to somebody. He has further deposed that he called the Crime Team at about 7:55 PM and the Crime Team reached the spot at about 8:058:10PM in his presence. He has denied the suggestion that the panna had been planted upon the accused to falsely implicate him in the present case or that there were no blood stains on the chunni seized by him vide Ex.PW2/A. He denied the suggestion that all the case property was planted against the accused to falsely implicate him in the case and to save the real culprits. The witness has further denied the suggestion that the case had not been investigated properly to search the real culprit and the accused had been falsely implicated. He has also denied the suggestion that fair investigations St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 45 of 83 had not been done at the instance of the sons of the accused. He is not aware whether the ash seized as case property had been sent to FSL or not by the other Investigating Officer and states that he had not sent the same to the FSL. He has denied the suggestion that all the paper work was done while sitting in the police station and that is why no statement of neighbors and public witnesses had been recorded by him.
STATEMENT OF THE ACCUSED/ DEFENCE EVIDENCE:
(59) After completion of prosecution evidence the statement of accused Brij Mohan has been recorded under Section 313 Cr.P.C. wherein all incriminating material was put to the accused Brij Mohan which he has denied. He has stated that he is innocent and has been falsely implicated by the police in order to solve the present case. According to the accused, the police instead of searching the real culprit has implicated him to work out the present case. He has further stated that he himself is the victim in the present case since he was forced to drink acid by someone in black costume after which his brain became restless and thereafter he became unconscious.
The accused has further stated that he regained a little conscious after almost about a month. According to him, there were no disputes between him and his wife and they had a happy marriage of more than 40 years. He has also stated that he never raised his voice or hand on his wife and there was no occasion for any kind of differences. According to the accused, he has five children all of whom are married and also has a grandson and there has never been any dispute. The accused has denied having refused for St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 46 of 83 giving stomach wash and having made any disclose statement to the police. (60) The accused Brij Mohan has examined one witness in his defence. DW1 Dr. Manish Meel, Senior Resident from IHBAS has brought the record pertaining to the treatment of patient Brij Mohan which is Ex.DW1/A running into 23 pages.
(61) On a specific Court Question the witness has deposed that as per the hospital record the initial diagnosis of the patient was bipolar affective disorder mania with psychotic symptoms and the main diagnosis was schizophrenia and second was schizo affective and third possibility was bipolar affective disorder. He has further deposed that in all the above three possibilities the patient can suddenly become highly aggressive physically and later he may remember what he has done but he will come with an explanation after his delusion.
(62) According to the witness, as per the records of the patient in the present case, there was a previous history of violence given by the family of the patient Brij Mohan who had come with his wife (now deceased). He has further deposed that first time when Brij Mohan had come to the hospital he was accompanied by his wife and the symptoms observed were as under:
1. Decrease sleep
2. Talking to self
3. Big claims St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 47 of 83
4. Wandering tendency
5. Set fire in the temple and used to keep knife while walking.
(63) He has testified that when Brij Mohan came from the jail on 31.1.2012, he was complaining of hearing voices and since there was nobody from the family accompanying him, no details could be obtained. According to the witness, the patient Brij Mohan was under treatment at that time and was not normal.
(64) The incident in the present case has been narrated to the witness by the DLSA Counsel after which the witness has been asked to inform if it was possible that the accused at the time of the incident could be under aggravated psychiatric disorder, on which the witness has replied that it was possible because when Brij Mohan was asked about the incident he informed the doctor "Jo Hona Tha Wo Ho Gaya" meaning thereby that he was under some belief. The record shows that at the time of incident he had also harmed himself by consuming some corrosive substance. (65) In his crossexamination by the Ld. Addl. PP for the State the witness has admitted that he has not examined the patient personally and he has deposed on the basis of the official record. He has also admitted that the above said documents were not prepared in his presence. FINDINGS:
(66) I have heard arguments advanced before me by the Ld. Addl. PP for the State and the Ld. DLSA Counsel. I have also gone through the St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 48 of 83 memorandum of arguments filed on behalf of the State and the accused and also the medical literature relied upon by the parties i.e. Modi's Medical Jurisprudence and Toxicology, TwentyThird Edition published by Lexis Mexis Butterworths Wadhwa, Nagpur and Dr. Hari Singh Saur's - Penal Laws of India. My findings are as under:
No Ocular Evidence:
(67) Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspect connected with the offence, there is no reason to reject their testimonies. Unfortunately in the present case there is neither any direct ocular evidence nor an evidence of last seen and the entire evidence in the case is incidental and circumstantial.
Medical Evidence:
(68) Dr. Bhim Singh (PW18) has proved having conducted the postmortem examination on the dead body of his deceased wife Smt. Pushpa on 31.07.2011 vide postmortem report which is Ex.PW18/A according to which there were following external antimortem injuries on the body of the deceased: St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 49 of 83
1. Lacerated wound 6cm x 1.5cm into bone deep right side of face just front of ear, obliquely placed extending from right temporal area upto maxillary sinus.
2. Ligature mark parchment like surrounding haemorrhages, transversely placed around the neck just at the level of thyroid measuring 16 cm in length and 2cm in width.
3. Blackening of right eye was present.
4. Reddish conclusion with fracture dislocation of both right forearms present.
5. Lacerated wound 1cm x 0.5 cm x 0.8cm back of left hand.
6. Contused abrasion 10cm x 2.2 cm front of left arm.
(69) Dr. Bhim Singh has proved that death was caused due to combined effect of coma, shock and asphyxia consequent upon head injury and ligature strangulation, all the injuries were ante mortem, fresh in duration; Injury No.1, 3, 4, 5 and 6 could be caused by hard blunt object and Injury No. 2 was caused by ligature pressure by a cloth.
(70) He has further proved having given the subsequent opinion on the ligature material i.e. Chunni and after examining the same he opined that the injury No.2 (Ligature mark parchment like surrounding haemorrhages, transversely placed around the neck just at the level of thyroid measuring 16 cm in length and 2 cm in width) could be possible St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 50 of 83 by the said chunni (Ex.P9), which subsequent opinion is Ex.PW18/B. Dr. Bhim Singh has also proved having examined the L shaped iron rod (panna) used for opening the wheels was and having opined that the injuries No.1, 3, 4, 5 and 6 mentioned in postmortem report Ex.PW18/A could be caused by said weapon (Ex.P8), which opinion is Ex.PW18/C. (71) On a specific Court Question the Autopsy Surgeon Dr. Bhim Singh (PW18) has clarified that the trauma injury was probably caused first followed by asphyxia after the injured must have become unconscious because the trauma injury was very deep i.e. till the base of the skull. There is no reason to doubt the opinion of the Autopsy Surgeon and hence I hereby hold that the above medical evidence is compatible to the prosecution case.
(72) Further, in defence the DLSA Counsel has examined Dr. Manish Meel (DW1) to prove the medical record of the accused Brij Mohan regarding the treatment which the accused Brij Mohan was received at IHBAS which is Ex.DW1/A running into 23 pages. Dr. Meel has explained that as per the hospital record the initial diagnosis of the patient Brij Mohan was bipolar affective disorder mania with psychotic symptoms and the main diagnosis was schizophrenia and second was schizo affective and third possibility was bipolar affective disorder. He has explained to the Court that in all the above three possibilities the patient can suddenly become highly aggressive physically and later he may remember what St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 51 of 83 he has done but he will come with an explanation after his delusion. According to him, as per the records of the hospital, there is a previous history of violence given by the family of the accused Brij Mohan who had come with his wife (now deceased). He has further deposed that first time when Brij Mohan had come to the hospital he was accompanied by his wife and the symptoms observed were as under:
1. Decrease sleep
2. Talking to self
3. Big claims
4. Wandering tendency
5. Set fire in the temple and used to keep knife while walking.
(73) Dr. Manish Meel (DW1) has also proved that later when the accused Brij Mohan came from the jail on 31.1.2012, he was complaining of hearing voices. However, since there was nobody from the family accompanying him, no details could be obtained. The incident in the present case was then narrated to the witness Dr. Meel by the DLSA Counsel after which the witness has been asked to inform if it was possible that the accused at the time of the incident could be under aggravated psychiatric disorder, on which the witness has explained that this was possible because when Brij Mohan was asked about the incident he informed the doctor "Jo Hona Tha Wo Ho Gaya" indicating thereby that he (accused) was under some belief. The record also shows that at St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 52 of 83 the time of incident he had also harmed himself by consuming some corrosive substance.
(74) I have given my careful consideration to the medical evidence which has come on record and it is writ large that the accused Brij Mohan is suffering from Schizophrenia, Schizo Affective and Bipolar Affective Disorder and was under treatment for the same at IHBAS even prior to the incident and it was the deceased wife of the accused who was his attendant and was taking him to the hospital. The family of the accused including the deceased had disclosed the doctors that he was having decrease sleep, talking to self, making big claims, having wandering tendency, used to keep knife with him and was highly aggressive and on one occasion had even set fire in the temple of their house. Unfortunately, it was during this period of his treatment that this incident had happened in which not only his wife Smt. Pushpa had lost her life but the circumstances reflected that he again set fire to his temple and had thereafter tried to end his life by consuming corrosive substance/ acid. This aspect has neither been investigated not was disclosed by the family of the deceased/ accused to the Investigating Officer and hence no evidence had been led by the prosecution in respect of the same. It was only when the accused was remanded to Judicial Custody and during his treatment for burns received by him for consuming corrosive substance, that he was also diagnosed for a kind of psychiatric ailment and was sent for IHBAS for management and his treatment continued for sometime. Here, I may observe that the accused Brij Mohan was being St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 53 of 83 produced in the Court on various dates and this court had interacted with him at length and observed that he was not consistent in his behaviour. Sometimes he appeared normal but there were times that his conversation did not make any sense and his behaviour was abnormal. It was then that the Ld. DLSA counsel Ms. Neelam Singh was asked to interact with the accused Brij Mohan at length and also to call his family to find out his detail background and it was only thereafter that the previous treatment being received by Brij Mohan from IHBAS came to be disclosed which record has now been proved by Dr. Meel.
(75) In so far as the postmortem report of the deceased is concerned, it stands confirmed that the death of the deceased Smt. Pushpa was due to combined effect of coma, shock and asphyxia consequent upon head injury and ligature strangulation. It also stands confirmed that initially Smt. Pushpa was subjected to a blunt force trauma and was thereafter strangulated. The medical evidence on record is compatible to the homicidal killing of the deceased Pushpa and also confirms that the accused Brij Mohan was suffering from Schizophrenia, Schizo Affective and Bipolar Affective Disorder and was under treatment for the same at IHBAS even prior to the incident.
Forensic Evidence:
(76) The case of the prosecution is that when the police visited the scene of crime a large number of articles were found lying there which were St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 54 of 83 lifted by the Investigating Officer and sent to the FSL for examination. The Investigating Officer Inspector Lalit Joshi has proved having obtained the FSL Reports which are Ex.PW23/E (Biological Report), Ex.PW23/F (Serological Report) and Ex.PW23/G (Chemical Analysis Report). The said reports have been admitted by the accused Brij Mohan and even other wise they are perse admissible under Section 293 Cr.P.C. (77) The Serological Report Ex.PW23/F shows that blood of Human origin was found on Ex.1 (wooden pieces); Ex.2 (iron rod/ panna); Ex.3a (Gadda); Ex.3b (Bedsheet); Ex.4 (Dupatta); Ex.5a (Salwar); Ex.5b (Lady's Shirt) and Ex.6 (Blood stained gauze cloth piece). Further, the Chemical examination report Ex.PW23/G shows that the Exhibit 1 i.e. light yellow coloured liquid volume 100 ml (approx) was containing 'Hydrochloric Acid'.
(78) This being the background I hereby hold that the forensic evidence on record is compatible to the prosecution case to the effect that injuries had been inflicted upon the deceased Pushpa with the help of iron rod/ Panna (Ex.P8) which show the presence of human blood.
Evidence against the accused Brij Mohan:
(79) The entire case of the prosecution is based upon evidence which is circumstantial and incidental. The case of the prosecution is that on on 30.7.2011 the son of the accused Brij Mohan namely Manoj Kumar had left his house in the morning and at around 3:30 PM when he reached at Bunkar St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 55 of 83 Chowk he found his father standing there with leverage / Jhaag coming out from his mouth on which he inquired from his father as to what had happened. On this Brij Mohan told Manoj Kumar that his mother had consumed acid and fallen down and died and on seeing her condition he (accused Brij Mohan) could not stop himself and also consumed the acid to end his life as well but when he felt uneasy, he locked the house and came outside the house and was going to inform the police. On seeing the worsening condition of his father, Manoj Kumar immediately rushed to Hindu Rao Hospital and simultaneously also informed his elder brother Kamal who also reached the hospital. Kamal was then sent to the house and in the hospital Manoj Kumar also found the key of the house which had fallen down from the pants of his his father on which Manoj Kumar also reached his house where he found the dead body of his mother Smt. Puspa lying on the bed in a pool of blood and police had already reached there.
The Crime Team also reached the spot and lifted the various chance prints and photographed the scene of crime. The body of deceased Pushpa was totally smeared in blood with injuries on her head and temple, blood stains were found scattered all over the bed sheet and wooden part of the bed, glass pieces of Pepsi bottle were also found there, one blood stained iron panna was found lying near the wall, some papers and religious books were lying on the floor, some plastic pieces along with the red coloured pooja cloth were lying in semiburnt condition, match box of 'Ship' containing two match sticks, two bottles of gulab jal was also lying and one chuuni was St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 56 of 83 lying near the dead body. The said exhibits were collected and sent to the FSL while postmortem was got conducted on the body of the deceased Pushpa vide postmortem report Ex.PW18/A which confirms that there were following injuries on the body of the deceased:
1. Lacerated wound 6cm x 1.5cm into bone deep right side of face just front of ear, obliquely placed extending from right temporal area upto maxillary sinus.
2. Ligature mark parchment like surrounding haemorrhages, transversely placed around the neck just at the level of thyroid measuring 16 cm in length and 2cm in width.
3. Blackening of right eye was present.
4. Reddish conclusion with fracture dislocation of both right forearms present.
5. Lacerated wound 1cm x 0.5 cm x 0.8cm back of left hand.
6. Contused abrasion 10cm x 2.2 cm front of left arm.
(80) The case of death was opined to be combined effect of coma, shock and asphyxia consequent upon head injury and ligature strangulation, all the injuries were ante mortem, fresh in duration; Injury No.1, 3, 4, 5 and 6 could be caused by hard blunt object and Injury No. 2 was caused by ligature pressure by a cloth. The medical evidence also establishes that the Chunni Ex.P9 could be the ligature material and the L shape iron rod / panna Ex.P8 could have caused the injuries No. 1, 3, 4, 5 and 6. St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 57 of 83 (81) The prosecution does not attribute any Motive to the accused Birj Mohan for commission of the offence nor any apparent motive is borne out from the evidence. It is submitted by the Ld. Addl. PP for the State that the accused Brij Mohan had first killed his wife by inflicting injuries on her with blunt force with the help of L shape iron rod/ Panna and thereafter strangulated her with a help of a Chunni and eventually also tried to end his life by consuming the acid.
(82) Admittedly, it was the accused Brij Mohan who was the only person in the room where the ghastly incident had taken place and he was living with his deceased wife Smt. Pushpa in the said room where none else had a free access. Further, in the incident he himself received grievous injuries since after allegedly killing his wife first by hammering her with a Panna (recovered from the spot of incident) and thereafter strangulating her, he attempted to commit suicide by consuming corrosive substance (bottle also recovered from the same room). After the incident he locked his wife Smt. Pushpa in the same room, the key of which was found in the pocket of his pants and discovered by his son Manoj Kumar (PW1) when it fell out of his pocket in the hospital, while he was under treatment. (83) The accused Brij Mohan is the best person who could have offered an explanation with regard to the same without any difficulty and the onus under these circumstances would not shift upon the prosecution. Since the facts relating to the same being especially within the exclusive knowledge of the accused, the legislature engrafted a special rule in Section St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 58 of 83 106 of the Evidence Act to meet exceptional cases in which not only it would be impossible to disproportionately difficult for the prosecution to establish such facts which are specially and exceptionally within the exclusive knowledge of the accused and which he could prove without difficulty or inconvenience. When the entire incriminating evidence was put to the accused Brij Mohan he simply responded by saying that he himself is the victim in the present case since he was forced to drink acid by someone in black costume after which his brain became restless and thereafter he became unconscious, which explanation is totally absurd and non satisfactory. Who else but Brij Mohan could have committed this act of killing of his wife Pushpa after which he himself consumed corrosive substance and thereafter locked his wife in the same room and left the house with the key in his pocket?
(84) Hence, in view of the above, I hereby conclude that the manner in which the entire sequence of events has unfolded and from the medical, circumstantial and forensic evidence which has come on record, it is none else but the accused Brij Mohan who had committed the murder of his wife Pushpa by first hitting her with a Panna and then strangulated her with a Chunni and thereafter he attempted to commit suicide by consuming corrosive substance causing grievous injuries to himself. Is the accused Brij Mohan suffering from mental illness/ Can he be convicted for the offence under Section 302 IPC and 309 IPC:
(85) In the present case, the accused Brij Mohan who is aged more St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 59 of 83 than 72 years was not represented by any private counsel and was therefore given legal assistance from the State. During the course of trial it was observed by the Court that his behaviour and conduct did not appear to be that of a normal person and it was then that on detail interaction with the accused and his family members who were called to the Court that it was borne out that Brij Mohan had been undergoing treatment for psychiatric ailments from IHBAS, Dilshad Garden, Delhi which was much before the present incident where he was being taken by his wife Smt. Pushpa (deceased in the present case). It was also noticed by this Court that the family members of the accused Brij Mohan were coming to the court at the initial stages and even gave evidence but later they seldom appeared even to meet the accused and would only appear as and when called by the Court to do so. Taking a note of these circumstances a detail inquiry was undertaken by this Court with virtually no assistance from the family of the accused.
The entire Medical Record of the accused since the time of his detention in jail and also the previous record of his treatment was secured from IHBAS. It was thereafter that the Ld. DLSA Counsel examined the doctor from IHBAS as defence witness from which it was borne out that the accused Brij Mohan was suffering from multiple psychiatric disorders. His Medical Report Ex.DW1/A running into 23 pages which has been duly proved by Dr. Manish Meel (DW1) shows that he was under treatment of Dr. Samrat and Dr. Kailash and as per the initial diagnosis Brij Mohan was suffering from Bipolar Affective Disorder Mania with Psychotic Symptoms. The St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 60 of 83 main diagnosis was Schizophrenia and second was Schizo Affective and third possibility was Bipolar Affective Disorder. Dr. Manish Meel has explained that in all the above three possibilities the patient can suddenly become highly aggressive physically and later he may remember what he has done but he will come with an explanation after his delusion. He has further deposed that Brij Mohan was brought to the hospital by his wife (deceased Pushpa) who had accompanied him and the symptoms observed were:
1. Decrease sleep
2. Talking to self
3. Big claims
4. Wandering tendency
5. Set fire in the temple and used to keep knife while walking.
(86) Dr. Manish Meel (DW1) has further explained that later Brij Mohan had also come for treatment from Jail on 31.1.2012 and was complaining of hearing voices and since there was nobody from the family accompanying him therefore no details could have been obtained. When asked to inform if it was possible that at the time of the incident the accused Brij Mohan was under some aggravated psychiatric disorder, the witness Dr. Manish Meel has explained that explained that it was possible because when Brij Mohan was asked about the incident he informed the doctor whatever had to happen had happened (Jo Hona St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 61 of 83 Tha Wo Ho Gaya). He has explained that this indicates that Brij Mohan was under some belief and this he concludes because the record also shows that at the time of the incident he even tried to harm himself by consuming some corrosive substance.
(87) This being the background, it is writ large that the manner in which the entire sequence of events has unfolded on the basis of the evidence which had come on record that it is none else but the accused Brij Mohan who had committed the murder of his wife Pushpa by first hitting her on her head with a panna/ blunt object and then strangulated her and thereafter he attempted to commit suicide by consuming corrosive substance thereby causing Grievous injuries to himself in respect of which the medical treatment is still continuing.
(88) The most important question which now arises is whether he was capable of knowing the nature of his act or whatever he was doing was wrong or contrary to law.
(89) Ld. DLSA Counsel Ms. Neelam Singh has vehemently argued that even though the accused Brij Mohan has been held to have committed the offence of killing his wife Pushpa and attempted to commit suicide, yet he cannot be convicted since the accused Brij Mohan himself is a victim and patient suffering from mental ailment as evident from his medical record which has been brought on record. She submits that under the given circumstances it would be cruel to visit him to sentence by holding him guilty. In support of her arguments she placed her reliance on the 210th St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 62 of 83 Report of Law Commission on Humanization and Decriminalization of Attempt to Commit Suicide in the year 2008 and also upon the judgment of the Hon'ble Supreme Court in Writ Petition (Crl.) No. 115/2009 under the title 'Aruna Ramchandra Shanbaug Vs. Union of India & Ors.' decided on 7.3.2011. In order to buttress her argument that the accused ought not be penalized, she has also placed her reliance on proposed amendment in the Mental Health Bill, 2013 Section 124 (1) and (2) which according to her seeks to decriminalize the attempt to suicide and rehabilitation of the victim. She has further placed her reliance on the provisions of Section 84 of Indian Penal Code and Section 334 of the Cr.P.C. and submits that the accused Brij Mohan suffering from unsoundness of mind cannot be convicted even if shown to have committed the offences.
(90) The Ld. Chief Prosecutor Sh. R.S. Yadav assisted by Addl. PP for the State has vehemently argued that they have nothing to say in so far as the provisions of Section 84 IPC and Section 334 Cr.P.C. are concerned but in so far as the proposed amendments in Mental Health Bill, Section 124 (1) & (2) are concerned, this Bill is yet to see the light of the day in as much as it is yet to take shape of the Act. He has submitted that keeping in view the various issues involved relating to the Constitutional validity of the proposed amendment under Section 124 (1) in the light of the provisions of Article 19 and Clause 3 of Article 20 of Constitution of India (Right St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 63 of 83 against Self Incrimination) and its likely abuse which may follow, which Bill is yet to be debated in the Parliament, not much reliance can be placed on the said amendments.
(91) I have considered the material placed on record in the form of the 210th Report of Law Commission on Humanization and Decriminalization of Attempt to Commit Suicide in the year 2008; judgment of the Hon'ble Supreme Court in Writ Petition (Crl.) No. 115/2009 under the title 'Aruna Ramchandra Shanbaug Vs. Union of India & Ors.' decided on 7.3.2011; the proposed amendment in the Mental Health Bill 2013 Section 124 (1) and (2) and the submissions made before the Ld. Chief Prosecutor, Ld. Addl. Public Prosecutor and the Ld. DLSA Counsel appearing for the accused. I am of a firm view that it is grossly criminal to criminalize attempt to suicide and stigmatize the victim. Such criminalization only pushes people to the limit since they know that they could be jailed in failed suicide attempts and penalizing a person attempting to commit suicide and ending their own lives does not create hope for the future. By Criminalization suicide the law, says in effect, that one should just resign one self to despair. What we need to do is to change the conditions that give rise to despair (Ref.: 2012 World Happiness Report from Colombia University). Criminalization may motivate those attempting suicide to ensure that they die, rather than survive and face punishment.
St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 64 of 83 (92) Coming now to the 210th Report of the Law Commission on Humanization and Decriminalization of Attempt to Commit Suicide (2008) so relied upon by the Ld. DLSA Counsel, it is evident that even the Law Commission in the said report has recommended decriminalization of attempt to suicide and observed that it would not be fair to inflict additional legal punishment on a person who has already suffered agony and ignominy in his failure to commit suicide. When a troubled individual tries to end his life, it would be cruel and irrational to visit him with punishment on his failure to die.
(93) Later, in the year 2001 the Hon'ble Apex Court had an occasion to deal with this Report in the case of 'Aruna Ramchandra Shanbaug Vs. Union of India & Ors.' in Writ Petition (Crl.) No. 115/2009 decided on 7.3.2011 wherein Hon'ble Mr. Justice Markandey Katju and Hon'ble Mr. Justice Gyan Sudha Mishra recommended to the Parliament to consider the decriminalization of attempt to suicide and observed as under:
"......... although Section 309 Indian Penal Code (attempt to commit suicide) has been held to be constitutionally valid in Gian Kaur's case (supra), the time has come when it should be deleted by Parliament as it has become anachronistic. A person attempts suicide in a depression, and hence he needs help, rather than punishment. We therefore recommend to Parliament to consider the feasibility of deleting Section 309 from the Indian Penal Code....."
St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 65 of 83 (94) Coming next to the proposed amendments in the Mental Health Bill 2013 in Section 124 (1) and 124(2) on which the Ld. DLSA Counsel has also placed her reliance, the same is reproduced as under:
Section 124 (1) : Notwithstanding anything contained in section 309 of the Indian Penal Code, any person who attempts to commit suicide shall be presumed, unless proved otherwise, to be suffering from mental illness at the time of attempting suicide and shall not be liable to punishment under the said section.
Section 124 (2) : The appropriate Government shall have a duty to provide care, treatment and rehabilitation to a person, having mental illness and who attempted to commit suicide, to reduce the risk of recurrence of attempt to commit suicide.
(95) It is writ large that the provisions of the proposed amendment in sub section (1) of Section 124 of Mental Health Bill 2013 apparently seek to decriminalize attempt to suicide by creating a presumption in favour of the person who attempts to commit suicide to the extent that he at the time of attempting suicide was suffering from mental illness (unless the contrary is proved). Hence, what Section 124 Clause 1 of Mental Health Bill 2013 seeks to do in effect is to create a blanket presumption in law that any person who attempts to commit suicide shall be presumed to be suffering from mental illness at the time of attempting suicide unless proved otherwise. Further, Sub Section (2) of Section 124 (2) of Mental Health Bill 2013 makes it a duty of the Government to provide health, care, St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 66 of 83 treatment and rehabilitation to the victim surviving attempt to suicide. (96) What these provisions particularly Section 124 (1) of Mental Health Bill 2013 seek to do in the event if passed by the Parliament as it now stands is Firstly will take into its fold activists political, social, environmental etc. who like Mahatma Gandhi, Vinoba Bhave, Sharmila Irom, Swami Nigmananda, Anna Hazare and many more undertake non violent means of protest by sitting on fast unto death for causes which may be termed as Nobel, unfortunately making them liable to be branded as those suffering from mental illness (unless contrary is proved). I am sure this proposed amendment is not intended to be an instrument to silence non violent protests, political opponents or to quell a political upsurge. (97) Secondly so many women in our Country who attempt to take this extreme path of selfdestruction as a last resort since we have failed to provide them a safe and secure environment, dignity, respect and freedom from exploitation and violence, would then stand the risk of being branded as suffering from mental illness with adverse legal consequences following such a presumption. While on the one hand the proposed amendment seeks to create a presumption of mental illness in an attempt to decriminalize attempt to commit suicide whereas on the other hand it does not take care of the mischief it seeks to cause since a person presumed to be suffering from mental illness is deemed under law to be incapable of giving consent, entering into a contract, execute documents including Wills or dealing with the property etc. Hence, by operation of law the civil and property rights of St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 67 of 83 such persons who are victims of circumstances stands the risk of being taken away and I am confident that this is certainly not what the Legislature intends. The above aspects have been highlighted in the Court and it is a matter of serious concern that this important facet should have skipped the attention of the Draftsmen to the Bill.
(98) Thirdly, the blanket presumption so being sought to be raised by this proposed amendment is only on the basis of the overt act of such person (who attempts to commit suicide) and not on the basis of his medical record of his mental condition or expert certification. (99) Fourthly the proposed amendment provides for presumption of mental illness unless proved to the contrary. Admittedly this proof to the contrary has to be on the basis of legally admissible evidence. Such a proposition is yet to be tested on the touch stone of its constitutional validity in the light of the provisions of Article 19 and Clause 3 of Article 20 of Constitution of India (Right against Self Incrimination). (100) Lastly the provisions of Section 84 of the Indian Penal Code read with Section 334 of the Code of Criminal Procedure are a complete law within themselves and decriminalize attempt to suicide in case of persons suffering from mental illness creating a complete bar to conviction in such cases thereby raising a serious question on the necessity and desirability of the amendment as proposed under Clause 1 of Section 124 of the Mental Health Bill, 2013.
St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 68 of 83 (101) Having noticed all this, the issue of the proposed amendment being raised by the Ld. DLSA counsel and without permitting myself to be persuaded by the proposed amendments in the Mental Health Bill 2013 for the reasons that an informed debate is yet to be taken place before the Bill takes the form of an Act, nonetheless I wish to sound a note of caution in respect of the proposed amendment under Section 124 (1) of the Mental Health Bill, 2013 so that as and when the Bill is taken up, such like considerations and abuses are taken care off.
(102) Undoubtedly, criminalizing the attempt to suicide is an archaic attitude characterized in earlier age of Monarchies, Theocracies and Colonial States as people were subjects and not citizens. In my considered opinion in case if the State is actually serious about decriminalizing attempt to suicide, as is so being claimed, the best choice/ alternative was then to have accepted the recommendations of the Law Commission 210th Report and of the Hon'ble Apex Court in the case of 'Aruna Ramchandra Shanbaug Vs. Union of India & Ors.' in Writ Petition (Crl.) No. 115/2009 decided on 7.3.2011 for deletion of Section 309 IPC, since the existing Statutory Law already takes care of the situation where such an attempt is made by a person suffering from unsoundness of mind. (103) Coming now to the law as it exists on date, Law in India presumes every individual to be of sound mind and also presumes the existence of mensrea. The burden of proving the mental insanity lies on the accused (Section 105 of Indian Evidence Act). After the plea of St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 69 of 83 insanity is taken the following consequences ensue:
1. There is a Bar to the Trial - In a case where the accused is insane and cannot plead, the trial is stayed till such time he is in a position to take control of his affairs and plead.
2. There is a Bar to the Conviction - In a case where the offence has been committed and the accused is shown to be insane at the time such crime was committed, there can be no conviction.
3. There is a Bar to infliction of Capital Punishment - In a case where the condemned prisoner has become insane after the Conviction, there can be no imposition of Capital Punishment.
(104) The law followed in India in defence of insanity is an adaption of Mc Naghtan's Rule. Section 84 Indian Penal Code provides that nothing is an offence which is done by a person who, at the time of doing it, be reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong of contrary to law. (105) M' Nagthan Rule provides that there is a presumption of sanity and the burden of proof is on the person who claims insanity. Sanity is a rebuttable presumption and the burden of proof is on the party relying upon it. Whether a particular condition amounts to a decease of the mind within the rules, is not a medical but legal question to be decided in accordance with the ordinary rules of interpretation. There is a clear distinct between the internal and external factors affecting the mind of the accused which would depend largely upon the elements of voluntariness St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 70 of 83 and awareness of the circumstances surrounding the action of the accused. In order to satisfy this requirement, the wrong committed must be a legal wrong and the accused be functionally unaware that his actions are legally wrong at the time of offence. A practical issue is whether the fact that an accused is labouring under a "mental disability" should be a necessary but not sufficient condition for negating responsibility i.e. whether the test should also require an incapacity to understand what is being done, to know that what one is doing is wrong, or to control an impulse to do something and so demonstrate a causal link between the disability and the potentially criminal acts and omissions.
(106) It is writ large that the considerations for ascertaining the legal insanity would be the Medical Status of the accused at the Time of commission of offence, the Degree or extent of Insanity and the extent of Understanding/ Sense of Awareness of the accused.
(107) While ascertaining the mental ailment of the accused the Role of the Medical Officer (Psychiatrist) becomes more important in a criminal case and the Medical Officer (Psychiatrist) who keeps the accused under observation, certifies whether he is mentally ill or not and the following aspects become relevant:
➢ History of mental ailment in the family.
➢ Lack of motive in commission of crime.
➢ Lack of premeditation and preplanning.
St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 71 of 83 ➢ Absence of compliance.
➢ No attempt to destroy evidence or to flee from the scene of crime.
➢ Ghastly or bizarre nature of crime.
(108) The doctors/ Psychiatrists in such cases have an onerous responsibility. They are expected and required to independently and carefully examine every such case being uninfluenced by the material which has been collected by the Investigating Agency and by the information which may be passed on to them either by the family of the patient or by any other agency.
(109) Applying the settled principles of law to the facts of the present case, the medical evidence in the form of treatment record of the accused Brij Mohan which is Ex.DW1/A confirms that the accused was suffering from Bipolar Affective Disorder Mania with Psychotic Symptoms and the main diagnosis was Schizophrenia and second was Schizo Affective and third possibility was Bipolar Affective Disorder. It is borne out from the said record that even prior to this incident the accused had been exhibiting a psychiatric and aggressive behaviour and it was his wife Smt. Pushpa (deceased) who had been accompanying the accused Brij Mohan to IHBAS as his attendant. His medical record Ex.DW1/A establishes that even at that time Smt. Pushpa (deceased/ victim in the present case) had informed the doctor that he (Brij Mohan) had set fire to the temple and used St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 72 of 83 to keep a knife with him. This confirms the diagnosis of the doctors that he was suffering from Schizophrenia, Schizo Affective and Bipolar Affective Disorder and also explains how the burnt religious books, papers, red piece of cloth, rose water etc. were lying at the spot establishing that the accused Brij Mohan again tried to set the temple on fire and also injured his aged wife of 70 years (Smt. Pushpa). His destruction did not end here and he then tried to even destroy himself by consuming some corrosive substance. (110) Firstly, when we take into account the Factors Prior to the commission of the Crime they establish that the accused Brij Mohan has a history of psychiatric problems and even previously had set the temple of his house on fire and used to keep a knife with him. Even in his family there is a history of mental ailment and this has now been borne out at the final stage when the family members of the accused were called to the Court and questioned on the same. His son Manoj Kumar has informed that even his uncle Garib Dass i.e. the real brother of Brij Mohan is suffering from a Schizophrenic problem and exhibits a behaviour similar to the accused Brij Mohan. He has further informed that his nephew i.e. son of his brother Kamal i.e. grandson of Brij Mohan is also a patient of Cerebral Palsy with Spastic Quadriparesis with Mental Retardation whose documents too he has now placed before the Court. Hence, it is reflected from the aforesaid that the family of accused Brij Mohan has a history of mental ailments.
St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 73 of 83 (111) Secondly there is a complete absence of any motive in the present case. Admittedly the accused had been married to the deceased for the last many years and there is no history of any dispute. They are having five children, all married and were residing in a join family with no disputes. The prosecution also does not allege any Motive. (112) Thirdly the conduct of the accused shows that there was total absence of any preparation or preplanning. Also, there is nothing to show that before the commission of offence his acts could have given rise to any suspicion or indication that the accused Brij Mohan could have committed this offence.
(113) Fourthly, it is further apparent from the evidence on record that the accused Brij Mohan made no attempt to destroy evidence of crime or flee away from the scene of crime. He was discovered by his son Manoj Kumar when he was aimlessly wandering on roads with lavage/ jhaag coming out of his mouth. It is not that the accused Brij Mohan suddenly developed a mental ailment but a case where his family was aware of his history of psychiatric ailments and that he was suffering from schizophrenia, schizo affective and bipolar affective disorder. His conduct at the time of the offence also confirms his mental state when he himself consumed corrosive substance to end his life and after committing the crime he locked the door of the house and wandered out of the house on the roads with lavage/ Jhaag coming out from his mouth. When he was discovered by his son Manoj Kumar at Bunkar Chowk, he (Brij Mohan) told St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 74 of 83 him (Manoj Kumar) that he was going to the Police Station to inform them that he his wife had consumed something and was lying in the house. No sane person in the right frame of mind would have exhibited such a strange conduct.
(114) Lastly the manner in which an old lady of about 70 years had been killed by her husband i.e. the accused Brij Mohan with no history of dispute whatsoever, first by pounding her with an iron panna and then strangulated her and thereafter himself consumed a corrosive substance/ acid to harm himself exhibits the bizarre nature of the act and the brutality involved. In the Court when the accused Brij Mohan was asked about the above incident, the explanation he gave for the same was equally bizarre.
According to him, some person in black costume came inside his room and forced him to drink acid after which his brain become restless and he become unconscious.
(115) It is, therefore, borne out from the above that the awareness of the accused Brij Mohan of reality was impaired at the time of the incident to the extent that he was unaware of the nature of his action and his judgment as to the justification for his act was faulty. According to Medical Jurisprudence (Ref.: Modi's Medical Jurisprudence and Toxicology, Twenty Third Edition published by Lexis Mexis Butterworths Wadhwa, Nagpur) Schizophrenics have been found to commit murder because of delusional ideas relating to the victims and even in the present case the accused Brij Mohan had committed the offence in such a state which aspect has also St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 75 of 83 been certified by the doctor/ Psychiatrist as borne out from the medical record of the accused Brij Mohan who was undergoing treatment at IHBAS for the same. I, therefore, conclude that though the offence in question has been committed by the accused Brij Mohan but at the time of the incident, he by reason of unsound mind, was incapable of knowing the nature of his act or that he was doing was either wrong or contrary to law. (116) In view of my above discussion and in terms of the provisions of Section 84 Indian Penal Code (exception to the General Rule in case of person of unsound mind incapable of knowing nature of the act or that what he was doing was wrong on contrary to law) and Section 334 of the Code of Criminal Procedure, I hereby hold that though Brij Mohan, aged 72 years is proved to have killed his wife Smt. Pushpa aged 70 years (Section 302 IPC) and thereafter he attempted to commit suicide by consuming a corrosive substance (Section 309 IPC) yet in view of the fact that it stands established from the medical record of the accused Brij Mohan that at the time of the incident accused Brij Mohan by the reason of unsound mind (Bipolar Affective Disorder Mania with Psychotic Symptoms and main diagnosis being Schizophrenia, Schizo Affective and Bipolar Affective Disorder) was incapable of knowing the nature of his act or that what he was doing was wrong on contrary to law. Hence in view of the same, I acquit the accused Brij Mohan for "he knew not what he was doing". St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 76 of 83 State Responsibility in case of a person held guilty of the offence but acquitted being of unsound mind:
(117) After having concluded that Brij Mohan, aged 72 years is proved to have killed his wife Smt. Pushpa aged 70 years (Section 302 IPC) after which he attempted to commit suicide by consuming corrosive substance (Section 309 IPC) but acquitting him for the same for the reason that the medical record of Brij Mohan establish that at the time of the incident Brij Mohan by the reason of unsound mind (suffering from Bipolar Affective Disorder Mania with Psychotic Symptoms and main diagnosis being Schizophrenia, Schizo Affective and Bipolar Affective Disorder) was incapable of knowing the nature of his act or that what he was doing was wrong on contrary to law, the question which now arises for consideration is, how to deal with this accused Brij Mohan. Whether under the given circumstances he is required to be set at large or handed over to some relative or a friend or is required to be sent to a Reception Centre? (118) I may observe in this regard that the proposed amendment to sub section (2) of Section 124 of Mental Health Bill 2013 makes it a duty of the Government to provide health, care, treatment and rehabilitation to the victim surviving attempt to suicide. A large part of the Indian Population seemingly suffers from mental ailments ranging from mild depression, behavioural aberrations to serious schizophrenic problems.
India is yet to have a comprehensive survey of all the states for ascertaining the extent of population suffering from common mental disorders and the St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 77 of 83 State is yet to come up with a definite holistic program by assuming the responsibility for dealing with this situation.
(119) Be that as the case may be, there can be no denying that persons who suffer from mental illness in various forms require extra love and care. Distress does not mean discipline and a person in distress who attempts suicide or commits an offence in a state of mental unsoundness needs empathy and understanding and it is crying need of the hour to remove stigma attached by the society to such persons and provide support & care to them. One cannot be unkind to those who are already suffering and the situation requires to be handled with compassion and kindness. Stigmatizing the victim and his family only aggravates the problem and timely biological, societal and psychological intervention is the requirement of the hour. Any person, who by virtue of the nature of his mental and physical condition becomes incapable of taking care of his own affairs or is dangerous to life/ property of others, becomes the responsibility of the State and it is the State who has the obligation to take care, custody and treatment of such a person till such time he becomes capable of managing himself and his affairs. It is the responsibility of the Welfare State to reach out to those in distress whilst respecting individual right to his own life. (120) In the present case, the Court accepts the medical condition of Brij Mohan and has acquitted him of the offences charged, requiring this Court to now ascertain as to whether Brij Mohan is required to be set at large or committed to a Reception Center for management and for receiving St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 78 of 83 treatment of his mental disorder till such time he is incapable of managing himself and his affairs. In this regard, I may observe that the Code of Criminal Procedure, 1973 Chapter XXV Sections 328 to Section 339 provide for a complete procedure. The relevant sections which deal with the case of a person acquitted on the ground of unsoundness of mind, are Section 334, Section 335 and Section 338 of the Code of Criminal Procedure which I reproduce as under:
Section 334: Judgment of acquittal on ground of unsoundness of mindWhenever any person is acquitted upon the ground that, at the time at which he is alleged to have committed an offence, he was, by reason of unsoundness of mind, incapable of knowing the nature of the act alleged as constituting the offence, or that it was wrong or contrary to law, the finding shall state specifically whether he committed the act or not. Section 335: Person acquitted on such ground to be detained in safe custody (1) Whenever the finding states that the accused person committed the act alleged, the Magistrate or Court before whom or which the trial has been held, shall, if such act would, but for the incapacity found, have constituted an offence,
(a) order such person to be detained in safe custody in such place and manner as the Magistrate or Court thinks fit; or
(b) order such person to be delivered to any relative or friend of such person.
(2) No order for the detention of the accused in a lunatic asylum shall be made under clause (a) of sub section (1) otherwise than in accordance with such rules as the State St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 79 of 83 Government may have made under the Indian Lunacy Act, 1912 (4 of 1912 ).
(3) No order for the delivery of the accused to a relative or friend shall be made under clause (b) of sub section (1), except upon the application of such relative or friend and on his giving security to the satisfaction of the Magistrate or Court that the person delivered shall
(a) be properly taken care of and prevented from doing injury to himself or to any other person;
(b) be produced for the inspection of such officer, and at such times and places, as the State Government may direct.
(4) The Magistrate or Court shall report to the State Government the action taken under sub section (1).
Section 338: Procedure where lunatic detained is declared fit to be released. (1) If such person is detained under the provisions of sub section (2) of section 330, or section 335, and such InspectorGeneral or visitors shall certify that, in his or their judgment, he may be released without danger of his doing injury to himself or to any other person, the State Government may thereupon order him to be released, or to be detained in custody, or to be transferred to a public lunatic asylum if he has not been already sent to such an asylum; and, in case it orders him to be transferred to an asylum, may appoint a Commission, consisting of a judicial and two medical officers.
(2) Such Commission shall make a formal inquiry into the state of mind of such person, take such evidence as is necessary, and shall report to the State Government, which may order his release or detention as it thinks fit.
St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 80 of 83 (121) In the present case it is borne out from the Medical Records of Brij Mohan (CRF No. 201101991) that he was undergoing treatment from IHBAS. Dr. Manish Meel has appeared in the Court and proved that Brij Mohan is suffering from Bipolar Affective Disorder Mania with Psychotic Symptoms and the main diagnosis was Schizophrenia and second was Schizo Affective and third possibility was Bipolar Affective Disorder. The medical record of Brij Mohan summoned from Superintendent Jail, Tihar also confirms that he is receiving treatment both for his physical ailment i.e. intrinsic internal damage caused on account of his having consumed corrosive substance and so also for his psychological/ mental ailments (in the jail also Brij Mohan has complained of hearing voices).
(122) Keeping in view his medical history, background and circumstances as reflected in the evidence brought on record, I am of a considered view that it is not safe to release Brij Mohan (for himself as well as for others) since even previously being afflicted by the psychiatric ailments he has tried to even harm himself (as evident from the fact that he had consumed some corrosive substance) and also others when he killed his own spouse and destroyed the property i.e. burnt the temple of his house. Under the given circumstances I feel that the accused Brij Mohan cannot be set free since he may pose danger to his other family members, friends and public and also to himself. Hence, in the Interest of Justice, the accused Brij Mohan is directed to be shifted/ committed to Institute of Human St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 81 of 83 Behaviour and Allied Sciences, Dilshad Garden, Delhi and his custody is handed over to Director, IHBAS for providing treatment for his mental ailments till such time he is found to be a person of sound mind and capable of managing himself and his affairs and would no longer create a substantial risk of bodily injury to himself or to another person or damage to property of another.
(123) Copy of this judgment is directed to be placed before the Chief Secretary, GNCT of Delhi, Principal Secretary (Home), GNCT of Delhi (State Government) in respect of the action so undertaken by this Court in terms of the provisions of Section 335 (1) of the Cr.P.C. with the directions to the State Government to deal with the accused Brij Mohan under Section 338 Cr.P.C. under intimation to this Court. Needless to say, in case if the Commission (so constituted by the State Government in terms of the provisions of Section 338 Cr.P.C.) directs the further detention of the accused at IHBAS from time to time as the case may be, a monthly intimation/ report of the same shall be regularly sent to this Court in this regard. In addition to the aforesaid, the Ahlmad of this Court shall also prepare the copies of the medical record and the treatment papers of Brij Mohan which are present on the Judicial Record and send the same to the Director, Institute of Human Behaviour and Allied Sciences (IHBAS), Dilshad Garden, Delhi along with the copy of this Judgment. (124) Sh. Manoj Kumar the son of Brij Mohan who has been called St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 82 of 83 to the Court is present. He has been duly informed about the orders of this Court and given a copy of this Judgment. Sh. Manoj Kumar states that being the son of Brij Mohan he shall be attending to his father at the time of his reception and treatment at IHBAS. In view of the above, I hereby direct Sh. Manoj Kumar to appear before the Director, Institute of Human Behaviour and Allied Sciences (IHBAS), Dilshad Garden, Delhi at 10:00 AM on 29.11.2013 for providing complete details and necessary required information and for completing the requisite formalities at the Reception Center.
(125) File be consigned to Record Room. Announced in the open court (Dr. KAMINI LAU) Dated: 28.11.2013 ASJII(NW)/ ROHINI St. Vs. Brij Mohan, FIR No. 159/2011, PS Bharat Nagar Page No. 83 of 83