Delhi District Court
State vs . Illiyas Kujoor on 26 March, 2010
1
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01/SOUTH
PATIALA HOUSE COURT/NEW DELHI
SESISONS CASE NO. 251/09/07
State Vs. Illiyas Kujoor
S/o Late Sh. Birsa Kujoor
R/o Jhuggi J.J. Bandhu
Camp Opp B - 5 & 6
Vasant Kunj
FIR No. 480/2007
Police Station Vasant Kunj
Under Section 302 IPC
Date of Institution
in this Court 26/03/2009
Date when arguments
were heard 17/03/2010
Date of Judgment 23/03/2010
JUDGMENT
The SHO Police Station of Vasant Kunj has challaned the accused to face trial for the commission of offence punishable under Section 302 IPC. The learned Metropolitan Magistrate after compliance of provisions under Section 207 Cr.PC. by supplying the copies of documents to the accused committed the case to the Court of Sessions for his trial.
BRIEF FACTS The prosecution case, in brief, is that on 06.07.2007 at about 5.05 pm, the PCR information vide DD No.28A was received that a person had killed his child at B - 5 and 6 J.J. Camp. The copy of said DD No.28A 2 was given to SI Pradeep Rawat who along with HC Subhash went to the spot at J.J. Bandhu Camp, Jhuggi Opp Block - 5 and 6 Vasant Kunj Gate No.2 where the crowd was present. On inquiry, it was gathered that a person had killed his female child aged 1 ½ years and was lying in intoxicated state. The mother of child Pushpa gave her statement to SI Pradeep Rawat, in short, that she was working as maid in flats and had got married with the accused for the last 10 years, out of wedlock 2 children were born, her son Rohit aged 4 years and daughter Preeti aged 1 ½ years, her husband was not in job he used to remain in house and look after the children. She was meeting the family expenses, her husband used to drink liquor and used to beat her and her children after drinking liquor. On that morning, she gave Rs.50/- to her husband( accused) and went to the flat to do the work. At about 12 pm she returned to her jhuggi, her daughter Preeti and son Rohit were playing in the house and her husband was also present in the house and was drinking liquor. At about 3 pm, she left her 2 children playing in the normal conditions and went out again to the flats for doing work. One Laxmi who lives in neighbourhood jhuggi came to call her from the flats and informed that her daughter Preeti was unconscious and her husband was present in the house was intoxicated. She went to her jhuggi at 4.30 pm and saw that her daughter Preeti was unconscious. She asked her husband about it, he did not speak anything due to intoxication. When she asked from her son Rohit, he made gestures that his father had beaten Preeti. The people collected there and on inquiry intimated that the accused had killed the child in intoxicated condition. She took the child to Dr. Chawla who after checking informed that the child was dead. Someone made a telephone call to the 3 police. The complainant also stated that the death of her daughter was not natural and she had doubt that her husband had committed murder of her daughter.
The rukka was sent to the police station and FIR was registered under Section 302 IPC which was sent to the concerned officers. Further, investigation was handed over to Inspector Satbir Singh who went to the spot and called crime team and photographer there and got the spot inspected and photographed. At the instance of the complainant, the site plan was prepared. The two underwear and used utensils were seized, accused was arrested who made disclosure statement. The statement of witnesses under Section 161 Cr.PC were recorded. The postmortem on the dead body of the victim Preeti was got conducted and as per opinion of the doctor the death in this case was due to mechanical asphyxia caused by smothering. On completion of investigation, the accused was challaned to face trial, as referred before.
CHARGE AND PLEA OF THE ACCUSED The prima facie case for the commission of offence punishable under Section 302 IPC was found made out against the accused and charge accordingly was framed against him on 30.05.2008 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE In support of its case, the prosecution has examined 17 witnesses in all.
PW1 is HC Anil Kumar, who stated that on 06.07.2007, carbon copy of case FIR No.480/07 under Section 302 IPC was handed over to 4 him by Duty Officer, Police Station, Vasant Kunj to be handed over to concerned DCP and Illaka Magistrate PW2 is Ct. Rakesh Raghav, who stated that on 06.07.2007, he along with SHO, Police Station Vasant Kunj went to J.J. Camp Jhuggi, B- - 5 & 6, Vasant Kunj where HC Subhash and SI Pradeep Rawat met them. Public persons were found gathered there. One Pushpa Kujoor was also present there and she was holding a dead body of a child and all the persons were saying that Illiyas caused the death of the child. Accused Illiyas then present was also present there. SI Pradeep Rawat prepared rukka and handed over the same to HC Subhash who took the rukka to Police Station Vasant Kunj for registration of the FIR. Thereafter, he came to the Police Station along with SHO. Inspector Satbir Singh recorded his statement at the Police Station.
PW3 is Dr. Dinkar Chawla, who stated that on 06.07.2007 at about 10 am in the morning, one lady, namely, Pushpa Kujoor along with some attendants brought a girl child aged about one and a half years and they requested him to examine the child. On examination, there was no sign of any life in the child. No heart beat, no peripheral pulses, no respiration could be noted and as such the patient was already dead. After, he had declared the patient dead, the attendants and that lady had left with the body of the baby.
PW4 is Pushpa Kujoor, mother of the deceased child and wife of the accused, who stated, in examination in chief, that accused Illiyas Kujoor then present in court is her husband. She was married with the accused for the last 10 years. She was residing in jhuggi with her husband and two children son Rohit aged 3 years and daughter Preeti aged 1 ½ 5 years. Her husband used to work as labour.
The witness stated that on 06.07.2007, she has left her jhuggi at about 7 am for going to her work place and came back at about 12 noon. On that day, she again left her jhuggi at about 3 pm. At that time, her husband and both children were present at her jhuggi. Her daughter Preeti was ill, therefore, she told her husband to take her care. One Laxmi came to her work place and informed her that her daughter Preeti became unconscious, she came back to her jhuggi and found that her daughter was lying on the floor and her husband was also present there. She took her daughter to hospital and doctor informed her that her daughter had died. Thereafter, they brought her back to her jhuggi. When they came back to her jhuggi police officials were present there. Police officials obtained her signature on her statement Ex.PW4/A. She volunteered the police officials scolded her and asked her to sign. Her statement was not read over to her. Police officials took the dead body of her daughter to police station and thereafter to hospital. She identified dead body of her daughter vide her statement Ex.PW4/B. No article was seized by the police in her presence. Her son Rohit did not tell her anything with regard to death of her daughter Preeti. Her neigbourers did not inform her about the death of her daughter Preeti.
In the cross examination conducted by learned Additional Public Prosecutor she denied that she made her statement to the police voluntarily. She admitted that on the day of incident when she left the jhuggi she had given Rs.50 to her husband for purchasing rice and when she came back to her jhuggi he had cooked rice. She denied that when she came back to jhuggi at about 12 noon her husband was taking liquor.
6She did not state this fact to the police, she was confronted with statement Ex.PW4/A. She also denied that police seized two underwear of her daughter, two plates, one glass and two spoons from the spot. She also denied that her husband generally used to beat her and her children after consuming liquor or that he used to suspect her character as she used to do work in kothis.
PW5 is Dr. Alexander, Sr. Specialist & Head Forensic Medicine, Safdarjung Hospital, who conducted post mortem examination on the body of Preeti daughter of Illiyas who was brought with alleged history of being killed by her father and was declared dead on 06.07.2007 at 5.05 pm. On examination, she had sustained following two external injuries:
1. Brownish scratch abrasion on the front of nose, slightly right to the median plane of size 0.4 cm x 0.1 cm.
2. Scratch abrasion (brown) on the right side front of lower jaw 2.5 cm below the lower lip of size 2.2 cm x 0.3 cm.
On internal examination brain was congested and intact. In the neck subcutaneous tissue at the front of neck was normal. There was haemorrhage on the right side of adams apple. Rest of the structure were normal and intact. In the chest both lungs were congested. Petechial haemorrhages were present at inter lobular junctions and at hilar regions. Rest of the structures in the chest abdomen and pelvis were normal and intact.
In his opinion death in this case was due to mechanical asphyxia caused by smothering. All the injuries were ante mortem in nature and consistent to the history. But time since death was approximately 45 7 hours. Postmortem report is in his hand writing and is Ex PW5/A. PW6 is Sanjay Kumar, who stated that someone told him that a daughter had been killed by her father. He informed the police on 100 number from his mobile phone. His statement was recorded by the police.
In the cross examination conducted by learned Additional Public Prosecutor, he admitted that the date was 06.07.2007.
PW7 is HC Subhash, who stated that on 06.07.2007, he was posted as constable in Police Station Vasant Kunj. On that day, he was on emergency duty with SI Pradeep Rawat. On that day, at about 5.05 pm, on receipt of copy of DD No. 28A, he along with SI Pradeep Rawat reached at JJ Bandhu Camp B 5 & 6, Vasant Kunj. So many people collected there. Complainant Pushpa Kujoor met them there she was having dead body of her daughter Preeti in her lap. SI Pradeep Rawat recorded her statement. In the meantime SHO along with other staff came there. SI Pardeep handed over to him rukka for registration of FIR. He went to the Police Station and got the case registered. After registration of the case investigation was marked to Inspector Satyabir Singh. He handed over original rukka and copy of FIR to IO and came back to the place of occurrence. Crime team and photographer were called by Inspector at the spot who inspected and took the photographs of the place of occurrence. At the spot two plates, two spoons and two underwear of the deceased and one glass were lying. These were sealed in separates pulandas with the seal of SSK and taken into possession vide memo Ex PW4/C. Accused then present in the court was also there under the influence of liquor. He was arrested by the investigating officer . Dead body of Preeti was sent to hospital. On 08.07.2007, he went to mortuary along with investigating 8 officer for postmortem of the dead body. Dead body was identified by Pushpa and Rozy vide their statements Ex.PW4/B and Ex.PW7/A. The witness identified two plates, one glass and two spoons as Ex.P1, Ex.P2 and Ex.P3 respectively.
The witness also identified two underwear as Ex.P4 which were seized from the spot.
PW8 is Ct. Hari Singh, who stated that on 06.07.2007, he was posted as constable in Police Station Vasant Kunj. On that day, he along with SHO, Ct Rakesh, Ct Ganga Ram had gone JJ Bandhu Camp. SI Pradeep Rawat and Inspector Satyabir Singh met them there. They came to know that father of child had killed his daughter. So many people collected there. He took the dead body to Safdarjung Hospital and got preserved the dead body. He also stated that on 08.07.2007 postmortem was conducted on the dead body.
PW9 is ASI Ram Prakash, who proved the copy of FIR as Ex.PW9/A and his endorsement on the rukka as Ex.PW9/B. He stated that investigation was marked to Inspector Satbir.
PW10 is Ravinder Singh, who stated that on 06.07.2007, he was posted as photographer, crime team, Dwarka (South West). On that day, he had gone at the place of occurrence with other members of crime team and he took photograph of the place of occurrence Ex.PW10/A, B and C and negatives are Ex.PW10/D (colly).
PW11 is Dr. Pankaj Garg, Medical Officer, Safdarjung Hospital, who proved the MLC of deceased child as Ex.PW11/A. PW12 is Rozy, cousin sister of mother of deceased child who identified the dead body of Preeti vide her statement Ex.PW7/A. 9 PW13 is SI Pradeep Rawat, who stated that on 06.07.2007, he was posted in Police Station Vasant Kunj and on that day after receipt of DD No.28A Ex.PW 9/C he along with HC Subhash went to B 5 and 6 Jhuggi JJ Bandhu Camp, Vasant Kunj, Delhi where he saw gathering of several persons. At the spot he came to know that one person had killed her daughter aged about one and half years and that person was inside the jhuggi, under the influence of liquor. One lady Pushpa Kujoor was present at the spot. She produced a girl aged 1 ½ years. The child was dead. The statement of Pushpa recorded by him is Ex.PW4/A on which he made his endorsement Ex.PW13/A and prepared the rukka. He sent the rukka through Ct Subhash to Police Station for registration of FIR and requested to handover the investigation to any Inspector. He remained present at the spot. In the meantime SHO and other staff came at the spot. Inspector Satbir Singh also reached at the spot. Crime team and photographers also came at the spot. They conducted their proceedings. He sent the dead body to mortuary Safdarjung Hospital in the custody of Ct Hari Singh who came at the spot along with SHO. Smt Pushpa produced undergarments of her daughter Preeti and some utensils before the IO. These items were kept separately in separate pulandas and were sealed with the seal of SSK and were seized vide memo Ex.PW4/C. Accused then present in the court was interrogated. He was arrested vide memo Ex.PW13/B and his personal search was conducted vide memo Ex. PW 13/C. He made disclosure statement Ex. PW 13/D. Thereafter they came to the Police Station and case property was deposited in malkhana. Accused was got medically examined. The undergarments are collectively Ex.P4 and utensils are Ex. P1 to P3 are the same which were seized vide memo 10 Ex.PW4/C. PW14 is Inspector Uddham Singh, who stated that on 06.07.2007, he was posted as Incharge Mobile Crime Team, South West District Sector 9, Dwarka, New Delhi. On the request of IO, he visited the place of crime i.e. jhuggi, JJ bandhu Camp, Opposite B 5 & 6 block, Vasant Kunj, Delhi along with photographer Ct. Ravinder and crime team. He inspected the spot and photographer took the photographs on his instructions and after giving suitable instructions to the IO he left the spot.
PW15 is Laxmi, neighbour of the accused, who stated that accused IIliyas Kujoor was residing in near by jhuggi along with his wife Pushpa along with two children i.e. one son and one daughter. About three years ago at about 3-4 PM he was taking bath outside her jhuggi. She saw accused feeding meal to his children. After some time accused came to her and asked her to call his wife. She went near by kothis to call her. She came at the spot. Police was already present at the spot and accused was in the custody of police. She could not say as to how the daughter of accused died. She stated that police made inquries from her and recorded her statement under pressure.
In the cross examination conducted by learned Additional Public Prosecutor she admitted that she had stated to the police that when accused was giving meal to his daughter she was weeping. She denied that she stated to the police that when daughter of accused did not stop weeping and he was giving beating to her and he put off all the clothes of the child and thereafter shut the door of the jhuggi. She admitted, in the cross examination, that after 10-15 minutes accused came to her with the child. She denied that child was not breathing at that time and she scolded 11 the accused as to what he had done with his child.
In the cross examination conducted on behalf of accused, PW15 stated that wife of the accused was working as maid in different houses at that time and accused used to look after his both children and he used to feed both his children and used to take care of their daily needs.
PW16 is Sub Inspector Madan Pal, who stated that on 10.09.2007 as per the direction of the IO he visited at the place of occurrence i.e. jhuggi of Kamal Singh jhuggi cluster JJ Bandhu Camp B 5 & 6 Vasant Kunj, New Delhi with Inspector Satbir Singh and took rough notes and measurements on the pointing out of Inspector Satbir Singh and thereafter on 16.09.2007 on the basis of these rough notes and measurements he prepared scaled site plan PW16/A. All the marginal notes except in red ink are in his handwriting. He destroyed the rough notes and measurements after preparing the site plan.
PW17 is Inspector Satbir Singh, Investigating Officer of the case, who proved various steps taken by him during investigation of the case. He stated that on 06.07.2007, he was posted at Police Station Vasant Kunj as inspector. The investigation of this case was assigned to him after the registration of the case. Thereafter, he went to JJ Bandhu Camp Jhuggi opposite Block no. B 5 & 6 gate No.6 and a crowd was present there. He met with the complainant Pushpa she was having a child in her lap. SI Pradeep was also present there. Crime team was called and they conducted their proceedings. The photographer snapped the photographs Ex.PW10/A to C. He prepared site plan Ex.PW17/A. He stated that the child was dead. The body was shifted to Safdarjung Hospital mortuary. He made inquiry from other persons and he collected 12 undergarments of the deceased along with two plates, one glass and two spoons. The clothes were seized in a parcel with the seal of SSK and the utensils were sealed in another parcel with the seal of SSK and were seized vide memo Ex.PW4/C. Accused was interrogated. He was arrested vide memo Ex.PW13/B, his personal search was conducted vide memo Ex.PW.13/C and his disclosure statement is Ex. PW 13/D. He moved the application for postmortem Ex.PW17/B. Brief facts prepared by him are Ex.PW17/C. The Form 25.35 was filled by him and is Ex. PW 17/D. The body was got identified by Pushpa and Rozy vide their identification memos Ex.PW4/B and Ex.PW7/A. Along with the application total 13 inquest papers were submitted. Doctor marked those papers as 1 to 13 and put his initial. The postmortem was conducted. He collected the postmortem report which is Ex.PW5/A. After the postmortem the body was handed over to L.R.s of deceased. He stated that on 10.09.2007 he visited the spot along with SI Pradeep and SI Madan Lal, draftsman, he took rough notes and measurements and thereafter he collected scaled site plan Ex.PW16/A. The marginal notes in red ink are Ex.PW17/E and are in his hand writing. The statements of witnesses were recorded by him . He collected the DD which is Ex.PW9/C. He collected the copy of PCR Form Mark A and recorded statement of witnesses. After completion of investigation he submitted the file for challan. ARGUMENTS AND FINDINGS The learned Additional Public Prosecutor for the State has argued that the prosecution has proved its case against the accused beyond reasonable doubt as the mother of the victim/child Pushpa, PW4 the complainant in the case has supported the prosecution case. The 13 prosecution evidence and the statement of the accused under section 313 CrPC shows that the accused was last seen in the company of the deceased in their house. The medical evidence also shows it is homicidal death. Therefore, chain of the circumstances appearing against the accused are established and he is liable to be convicted under section 302 IPC.
The learned counsel for the accused, on the other hand, has argued that merely because of last seen evidence the accused cannot be convicted. It is argued that there is no motive of the accused for the crime in question. PW 4 Smt Pushpa Kujur and PW 15 Smt Laxmi are hostile witnesses. PW 15 Smt Laxmi has stated in the cross-examination that accused used to look after his children. In the statement under section 313 CrPC the accused has stated that he used to love both his son and daughter and used to take care of them in the absence of his wife. Therefore, the prosecution has failed to prove its case against the accused beyond reasonable doubt and accused is entitled to be acquitted of the charge. Reliance is placed upon State of Rajasthan versus Mrs Kamla Aiyar 1991 SC 967 and Kedarnath versus State of Nupe Aiyar 1991 SC 1224. In the alternative, it is argued that at the most charge under section 304 (Part II) is proved against the accused for the charge of murder under section 302 IPC. Reliance is placed upon the authority Lakhan alias Raju Baban Yedave (Yevale) versus The State of Maharashtra 2003 Cri. LJ 4424 Bombay.
I have heard the learned Additional Public Prosecutor for the State, learned counsel for the accused and have gone through the record of the case, authorities produced on behalf of the accused and the relevant 14 provisions of law.
The present case is based on circumstantial evidence. The important aspects and circumstances emerging in this case are being dealt with under different headings for the sake of convenience and the proper understanding and appreciating the evidence on record. But before that it would be appropriate to have a glance at the legal position as to the cases based on circumstantial evidence.
LEGAL POSITION AS TO THE CASES BASED ON CIRCUMSTANTIAL EVIDENCE In Sunder @ Lala and Ors. Vs. State 2009 VII AD (Delhi) 615 it was held as under:
" 29. It is settled law that circumstances play very important role in the appreciation of evidence. The conduct of witnesses is a very important facet to determine their creditworthiness. "
As evidence, there is no difference between direct and circumstantial evidence. The only difference is in that as proof, the former directly establishes the commission of the offence whereas the latter does so by placing circumstances which lead to irresistible inference of guilt.
(See Dalpat Singh v. State of Rajasthan 2005 Cr LJ 749 (Raj) (DB)).
The evidence has not to be considered merely as a number of bits of evidence, but the whole of it together and the cumulative effect of it has to be weighed. (See Dukhram Nath Vs. Commercial Credit Corpn Ltd.
15AIR 1940 Oudh 35, (1939) OWN 1114). No distinction has, therefore, to be made between circumstantial and direct evidence. (See Miran Baksh Vs. Emperor AIR 1931 Lah 529, 32 PLR 461; Thimma Vs. State of Mysore (1970) SCC (Cr) 320). The court must satisfy itself that the cumulative effect of the evidence, led by the prosecution, establishes the guilt of the accused beyond reasonable doubt. (See Shanker Bhaka Narsale Vs. State of Maharashtra AIR 1972 SC 1171, (1972) UJ 811 (SC); Chanan Singh Vs. State of Haryana AIR 1971 SC 1554).
In Padala Veera Reddy v State of AP, AIR 1990 SC 79 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of 16 guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Shivu & Anr. v R. G., High Court of Karnataka, 2007 Cr LJ 1806 (SC)) In a recent pronouncement in Raju Vs. The State by Inspector of Police - AIR 2009 SC 2171, as regards circumstantial evidence, the Hon' ble Apex Court observed as under:
"7. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v.
Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350);
Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
8. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of 17 A.P. (1996) 10 SCC 193, wherein it has been observed thus:
" In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence...." .
9. In Padala Veera Reddy v. State of A.P. and Ors.
(AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
" (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
10. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in 18 favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
11. Sir Alfred Wills in his admirable book " Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted" .
12. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
13. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus:
" It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with 19 the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
14. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ' must' or ' should' and not ' may be' established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.20
15. These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261), Kusuma Ankama Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008) and Manivel and Ors. v. State of Tami Nadu (Criminal Appeal No.473 of 2001 disposed of on 8.8.2008)."
In Anil Kumar Singh Vs. State of Bihar (2003) 9 Supreme Court Cases 67 relied upon by learned counsel for the accused it was held as under:
" 8. It is well settled that in order to base a conviction on circumstantial evidence, each and every piece of incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than the one of guilt of the accused and the circumstances cannot be explained on any hypothesis other than the guilt of the accused. The court has to be cautious and avoid the risk of allowing mere suspicion, howsoever strong, to take the place of proof. A mere moral conviction or a suspicion howsoever grave it may be cannot take the place of proof "
In Hanumant Govind Nargundkar and another Vs. State of Madhya Pradesh AIR 1952 Supreme Court 343 relied upon by learned counsel for the accused it was held as under:
" In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the 21 danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. V. Hodge, (1938) 2 Lewin 227) where he said:
" The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting , to take for granted some fact consistent with its previous theories and necessary to render them complete."
It is well to remember that in cases where the evidence is of a circumstantial nature the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but none proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In spite of the forceful arguments addressed to us by the learned Advocate-General on behalf of the State we have not been able to discover any such evidence either intrinsic within Ex. P-3A or outside and we are constrained to observe that the Courts below have just fallen into the error against which warning was uttered by Baron Alderson in the above mentioned case. "
22In the back drop of the legal position as to criminal cases based on circumstantial evidence the different important aspects of the case/incriminating circumstances appearing against the accused are being examined as follows:
MOTIVE It is true that no motive of crime in question is established by prosecution in this case. But the question is whether the proof of motive in a case based on circumstantial evidence is sufficient or is essential part of chain of circumstances to be proved by the prosecution.
It must be remembered that motive is not an essential ingredient of an offence (See State of Mysore Vs. Nanja AIR 1958 Mys 48, p 53; Surajpal Singh Vs. State of Madhya Pradesh 1972 CrLJ 1668, p 1676; Kodur Thimma Reddi AIR 1957 AP 758, 762) and the question of motive need not be considered when the evidence is clear that the particular accused was the assailant (See Narayan Nathu Naik Vs. State of Maharashtra AIR 1971 SC 1656, p 1657, 1971 Mad LJ (Cr) 43; Dore Vs. State of Karnataka (1980) 24 Mad LJ (Cr) 281, p 283 (Kant) (DB); Laxman Singh Vs. Jai Prakash (1984) 2 Crimes 918) and, therefore, there is no burden of proof on the prosecution to establish the existence of any motive. (See State Vs. Durga Charan Bank AIR 1963 Ori 33, p 37; Kishan Vs. State of Rajasthan AIR 1980 Raj LW 510, p 513 (DB)) It is true that motive is not an essential ingredient of the offence of murder and when there is direct evidence about the commission of the offence, motive loses its significance and recedes in the background. (See Gordhan Vs. 23 State of Rajasthan 1987 CrLJ 541, p 547 (Raj) (DB); Dasan Vs. State of Kerala 1987 CrLJ 180, p 184 (Ker) (DB); Suhash Vs. State of Uttar Pradesh 1987 CrLJ 991, p 995, AIR 1987 SC 1222) Existence of motive, even if not an essential component in proof of the offence, (See Arundhati Kentuni Vs. State 34 Cut LT 60, p 68; Bhulakiram Koiri Vs. State 1970 CrLJ 403 (Cal)) assumes importance only where direct and credible evidence is not available and the case rests upon circumstantial evidence. (See Bhagoji Vs. Hyderabad Government AIR 1954 Hyd 196) This legal position was also explained by our Hon High Court in Mahender Singh Dhaiya's case (supra) relied upon by learned counsel for accused.
The real question is whether in a criminal case based on circumstantial evidence would the absence of proof of motive by the prosecution break the chain of incriminating evidence against the accused to entitle him to the acquittal? The answer to this question lies in Mulakh Raj v. Satish Kumar, (SC) 1992(3) R.C.R.(Criminal) 300 : A.I.R.1992 (SC) 1175 : 1992 Cri.L.J. 1529 : 1992(2) Crimes 130 : 1992(3) S.C.C. 43 wherein the following observations were made by Hon Apex Court on the question in issue:
"...................................Undoubtedly in cases of circumstantial evidences motive bears important significance. Motive always locks up in the mind of the accused and some time it is difficult to unlock.24
People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non-existence. The failure to prove motive is not fatal as a mater of law. Proof of motive is never an indispensable for conviction. When facts are clear it is immaterial that no motive has been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case..........................................."
Due to the Mulakh Raj's case (supra) though the question of motive of accused assumes importance in the cases based on circumstantial evidence as against the case in which the direct evidence is available but the absence of proof of motive has the same effect in both cases. The absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime. LAST SEEN EVIDENCE The fact that accused was last seen with the victim/deceased is an important circumstance in a case based on circumstantial evidence. Though this circumstance alone is not sufficient to prove the guilt of the accused as is also obvious from Kamla's case (supra) relied upon by learned counsel for the accused, nevertheless it is an important circumstance which evaluating evidence against the accused in the case based on circumstantial evidence. In the present case the mother of the deceased child and wife of the accused, the complainant Pushpa PW 4 has stated that she left her at jhuggi at about 7 AM on 6/7/2007 for going to her workplace and she returned at about 12 noon. She again left her jhuggi at about 3 PM. At that time her husband (accused) and both children were present in the jhuggi. Her daughter Priti was ill, therefore, she told her 25 husband to take her care. Thereafter her neighbour Lakshmi called her from the workplace and she returned to her jhuggi and found her daughter was lying on the floor and her husband was also present there. PW 15 Lakshmi has also stated in her statement that she saw accused feeding meal to his children. She also admitted in the cross-examination that she has stated to the police that when accused was giving meal to his daughter she was weeping. Although this witnesses is hostile witness but there is sufficient indication in her examination-in-chief and the cross-examination conducted on behalf of the State to show that the accused was present with the deceased daughter on the fateful day. In the cross-examination conducted on behalf of the accused this witness has stated that the wife of the accused was working as maid in different houses at that time and accused used to look after his both children, accused used to feed both his children and used to take care of their daily needs.
In the statement under section 313 CrPC the accused though has stated that he was innocent and was falsely implicated in this case but at the same time he has stated that he used to love both his son and daughter (deceased) and he used to take care of them in the absence of their mother. He used to feed both of them. There was no motive for him to kill his daughter. Therefore, there is nothing in the statement under section 313 CrPC of the accused that at the time of death of his daughter/murder of his daughter he was not present in the jhuggi with her.
In view of the above I hold that the prosecution has been able to prove the important circumstance that accused was last seen with the victim child in the jhuggi prior to her homicidal death. MEDICAL EVIDENCE 26 PW5 Doctor Alexander who connected post-mortem on the dead body of the victim has stated that on examination the victim was found to sustain to external injuries:
1)brownish scratch abrasion on the front of nose, slightly right to the median plane of size 0.4 cm x 0.1 cm
2)scratch abrasion ( brown) on the right side front of lower jaw 2.5 cm below the lower lip of size 2.2 cm x 0.3 cm.
On internal examination brain was congested and intact. In the neck subcutaneous tissue at the front of neck was normal. There was haemorrhage on the right side of adams apple. Rest of the structure were normal and intact. In the chest both lungs were congested. Petechial haemorrhages were present at inter lobular junctions and at hilar regions. Rest of the structures in the chest abdoman and pelvis were normal and intact.
In his opinion that in this case death was due to mechanical asphyxia caused by smothering. All the injuries were ante mortem in nature and consistent to the history. But time since death was approximately 45 hours.
He proved the post-mortem report of the deceased child as Ex. PW 5/A. As per the opinion the death in this case was due to mechanical asphyxia caused by smotthering. All the injuries were antemortem in nature and consistent to the history. Therefore, it is not a case of natural death of the child and the post-mortem report and statement of PW5 Doctor Alexander and his opinion clearly show that it was homicidal death of the child.
27CRUCIAL CIRCUMSTANCE The crucial circumstance in this case is that when the complainant PW W4 Pushpa platform work from her jhuggi at about 3 PM her daughter was alive and accused, her husband, was inside the jhuggi and when she returned on being called by prosecution witness Lakshmi the accused was still inside the jhuggi. Therefore, whatever happened to the victim child happened in presence of the accused. ADDITIONAL/MISSING LINK IN THE CHAIN OF CIRCUMSTANCES Once the fact of last seen together is proved, a duty is cast on the accused to explain the circumstances in which they parted company. The failure of the accused to explain the circumstances in which he parted company with the deceased may well serve as additional link in the chain of circumstances thereby fortifying the prosecution case. (See Yogesh Karki v. State of Sikkim 2006 Cr LJ 509 (Sikkim) (DB).)Silence of inmates of the house about cause of the death of the victim, would become additional link in chain of circumstances. (See Trimukh Maroti Kirkan v State of Maharashtra, 2007 Cr LJ 20 (SC).) It is a well settled principle that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue then the same offers an additional link in the chain of circumstances to complete the chain. (See Swepan Patra v State of West Bengal (1999) 9 SCC 242; Anthony D'Souza & ors v State of Karnataka 2002 (10) AD 37 (SC)) A false answer offered by the accused when his attention was drawn to a circumstance renders that circumstance capable of inculpating him. In such a situation a false answer can also be counted as providing 'a missing link' for completing the chain. (See State 28 of Maharashtra v Suresh 2000 (1) SCC 471, 2000 SCC (Cr) 263; Kuldeep Singh & ors v State of Rajasthan 2001 Cr LJ 479 (SC), (2000) 5 SCC 7; Joseph v State of Kerala AIR 2000 SC 1608, (2000) 5 Sec 197; Jalasab Shaikh v State of Goa AIR 2000 SC 571, 2000 AIR SCW 111.) Where the accused on being asked, offers no explanation or explanation offered is found to be false, then that itself forms an additional link in the chain of circumstances to point out the guilt. (See Chandrasekhar Kao v Ponna Satyanarayana AIR 2000 SC 2138, JT 2000 (6) 465 SC; State of Tamil Nadu v Rajendran AIR 1999 SC 3535, 1999 Cr LJ 4552; Hari Lal v State 2001 Cr LJ 695 (All) (DB); Madho Singh & etc v State of Rajasthan 2001 Cr LJ 2159 (Raj) (DB); Sonatan Mahalo v State of West Bengal 2001 Cr LJ 3470 (Cal) (DB).) In the present case, it is proved by complainant PW 4 Smt Pushpa Kujur that when she left her jhuggi at 3 PM the accused and the deceased child were in the jhuggi. Her daughter Priti was ill therefore the complainant Pushpa told accused to take her care. On being asked the question pertaining to these facts, the accused denied the same as incorrect. In the statement under section 313 CrPC the accused has stated that he was innocent and has been falsely implicated in this case but he failed to explain as to how and under what circumstances his daughter victim Priti died. Therefore, the false answer given by the accused and his not explaining the circumstances which lead to death of the victim Priti makes an additional link in the chain of circumstances appearing against him or provides a missing link for completing the chain of incriminating circumstances against him.
ACCUSED INTOXICATED----EFFECT 29 Section 85-86 crystallise in a tabloid from the law relating to intoxication of drunkenness as a defence or plea in mitigation of a criminal offence. Section 85 gives the same protection to a person as S 84 does to a person of unsound mind, who is by reason of intoxication him was administered without his knowledge or against his will. ( See Re Macherla Balaswamy of Guntur AIR 1953 Mad 827, P 828 (1953) Cri.L.J. 1587).
Section 85, IPC, deals with act of a person incapable of judgment by reason of intoxication caused against his will. As the heading of the provision itself shows, intoxication must have been against his will and/or the thing which he intoxicated was administered to him without his knowledge. The expression 'without his knowledge' simply means an ignorance of the fact that what is being administered to him is or contains or is mixed with an intoxicant ( See Bablu alias Mubarik Hussain Vs State of Rajasthan (2007) Cr.L.J. 1160 (SC).
In the present case since the accused himself voluntarily drank liquor and it was not administered to him forcibly or without his knowledge, therefore, the fact that the accused was intoxicated at the time of commission of the offence in question does not entitle him to the benefit of section 85 or section 86 of IPC.
MURDER OR CULPABLE HOMICIDE NOT AMOUNTING TO MURDER The question now arises whether in the given facts and circumstances of the case the accused has committed murder defined in section 300 IPC and made punishable under section 302 IPC or he has committed the offence of culpable homicide not amounting to murder as defined under section 299 IPC and made punishable under section 304 IPC. In Sunder Lal v. State of Rajasthan, 2007 Cri.L.J. 3281 : 2007(10) 30 S.C.C. 371 it was held by the Hon'ble Apex Court as follows:
"In the scheme of the IPC culpable homicide is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder is culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the gravest form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.
14. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences Section 299 Section 300"
In Lakhan alias Raju Baban Yedave's case (supra) relied upon by learned counsel for the accused following observations were made:
31" The evidence on record shows that the appellant did his best for pacifying that child but the said child did not keep coolness of mind. It continued crying. Therefore,it is possible that in the mood of annoyance on account of lack of maturity, the appellant might have tried to pacify that child in a rude way and that must have resulted in its suffocation. The evidence which is on record show that it was an act committed by the appellant without taking sufficient care or might have been also done in haste. But on account of absence of sufficient material on record, the learned Trial Judge was left with no alternative but to conclude that the act of the appellant was an act amounting to culpable homicide not amounting to murder. The learned trial Judge has given the reasons justifying the said conclusion. There was no reason for the appellant to commit the murder of his own child. It seems to be the rude action of ignorant, immatured father. Therefore, this Court does not find any ground for setting aside the conclusions of the trial Judge holding that the appellant committed an offence punishable under Section 304(II) of IPC."
In Lakhan alias Raju Baban Yedave 's case (supra) the Sessions Court convicted the accused under section 304 (Part II) for committing homicide of the child and also under section 506 IPC Part II for threatening and criminally intimidating his wife. The conviction was upheld by the Bombay High Court with the above observations. Likewise in the present case the accused has committed homicide by causing death of his daughter in a similar fashion. He was also intoxicated at the time of commission of offence though he himself is to be blamed for his 32 intoxication. No motive to kill the child is attributed to the accused. Therefore, the facts and circumstances of the case show that accused has committed culpable homicide not amounting to murder punishable under section 304 (Part II) and not murder punishable under section 302 IPC. There cannot be any dispute to the legal proposition that accused charged with for the offence under section 302 IPC can be convicted for its minor offence under section 304 (Part II) IPC.
RESULT OF THE CASE In view of the above discussion, the prosecution has been able to prove its case against the accused for the offence under Section 304 (Part II) IPC beyond reasonable doubt. The accused is convicted under section 304 (Part II) IPC. Let the accused be heard on the point of sentence.
Announced in the (S.K. SARVARIA )
open court on 23.03.2010 Additional Sessions Judge01 South
Patiala House Courts/New Delhi
33
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01/SOUTH
PATIALA HOUSE COURT/NEW DELHI
SESISONS CASE NO. 251/09/07
State Vs. Illiyas Kujoor
S/o Late Sh. Birsa Kujoor
R/o Jhuggi J.J. Bandhu
Camp Opp B - 5 & 6, Vasant Kunj
FIR No. 480/2007
Police Station Vasant Kunj
Under Section 304(II) IPC
ORDER ON SENTENCE
By my judgment dated 23/03/2010, the accused/convict is
convicted under Section 304(Part II) IPC.
Ld. Addl PP has argued that deterrent punishment may be
awarded to the convict as he has committed the heinous offence.
Learned Counsel for the accused Sh. Anil K. Gujral, Adv. on the other hand, has argued that accused is a young person and is not a previous convict and was in the stage of intoxication when the offence was committed and he is in custody since 06/07/2007 so he should be sentenced to the period of imprisonment already undergone by him during the investigation and trial of this case. Reliance is placed upon Lakhan alias Raju Baban Yedave (Yevale) Vs The State of Maharashtra 2003 Cr.L.J. 4424 wherein some what similar circumstances, the accused 34 committed culpable homicide not amounting to murder of a child and also criminally intimidated the mother of the child. The learned Sessions Court convicted the accused for the offence punishable under Section 304 ( Part II) IPC and 506 ( Part II)IPC. On appeal being filed by the convict, the appeal was dismissed and judgment of Sessions Court was confirmed by Hon'ble Bombay High Court. The sentence awarded by Sessions Court for the offence punishable under Section 304(Part II)IPC was two years which was also confirmed by Hon'ble Bombay High Court.
Keeping in view the overall facts and circumstances of the case,I sentence the convict to undergo Rigorous Imprisonment for two years and nine months for the offence under Section 304 (Part II) IPC.
There is no need to award fine in the given facts and circumstances of the case. The period of detention already undergone by convict during the period of investigation and trial of this case shall be set off against the term of imprisonment imposed against the convict by this order, as provided under section 428 CrPC. Judgment and order on sentence be sent to server(www.delhidistrict courts. nic.in). Copy of judgment and order of sentence be supplied to convict/accused free of cost.
File be consigned to record room.
Announced in the open ( S.K. SARVARIA )
Court on 26/3/2010 Additional Session Judge-01/South
Patiala House Court
35