Delhi District Court
State vs . Mintu Mandal on 26 November, 2014
1
In the Court of Dig Vinay Singh
ASJ/Special Judge : NDPS : Rohini Courts : Delhi
In the matter of :
SC No. 46/13
State Vs. Mintu Mandal
FIR no. 376/11
PS Bawana
U/s 302 IPC
State
Versus
Mintu Mandal
S/o Sh. Roopan Mandal
R/o Village Dharara
PS Dharar Distt. Mungair, Bihar.
Date of receipt :16.02.2012
(Received in this court) :18.11.2013
Date of arguments :20.10.2014
Date of announcement :26.11.2014
JUDGMENT
1. Mintu Mandal is accused of committing murder of Smt Rani, wife of complainant Desraj, by strangulating her with his muffler. The case of prosecution is that on 1.11.2011, the complainant left for his job, at 9.00 AM, leaving behind his wife and his two minor kids in the room on second floor of factory no. N-39, Sector-2, DSIDC, Bawana, where they were residing. At 3.45 PM the factory owner called the complainant on his mobile and asked SC no. 46/13 Dtd...26.11.2014 Page 1 of 30 2 him to reach the factory immediately. The complainant went to the factory immediately and noticed that his wife was lying on the floor in the room. Her neck was bearing strangulation marks. She was dead by the time. His children were down stairs at that time. He went downstairs and asked his son Ajay, who at that time was five years old, as to what had happened to his mother. Ajay told the complainant that accused had come to their house and committed the crime. The complainant immediately informed about it to his brother, who was in the nearby factory. His brother also reached the spot and informed the police. The complainant alleged that the accused, who was known to his family, used to visit his house in his absence and had kept an evil eye on the deceased, regarding which the deceased had complained to the complainant. The accused was known to the complainant and his wife for about six months prior to the incident and he was visiting his room since then. Complainant also stated that after his wife informed him about the advances of accused, the accused was instructed by the complainant not to visit his room. But the evening prior to the incident, i.e. on 31.10.2011, the accused came to his room with meat, at about 7 PM, and the complainant and accused consumed meat as well as some liquor. Thereafter, accused left his room at about 9 PM, but not without threatening the complainant. In the next morning i.e. on the date of incident on 1.11.2011, at 7 AM, when the complainant went to the basement of the factory for putting the water pumping motor ON, he found the accused sitting in the corner of SC no. 46/13 Dtd...26.11.2014 Page 2 of 30 3 basement. The accused was then pushed out of the factory and was instructed not to visit again. The complainant claimed that it was the accused who must have murdered his wife. On the complaint of husband of deceased present FIR was registered and investigation was undertaken. The accused was tried to be searched at his factory but he was not found. On the next day, i.e. 2.11.2011 the accused was arrested from Nand Nagri in the early morning hours, in presence of the complainant. After arrest, the accused allegedly disclosed that he can get recovered the muffler with which he had strangulated the deceased. Subsequently, the accused got recovered the muffler. Cause of death of deceased was due to asphyxia due to strangulation by a ligature material about one day prior to the time of post mortem. On completion of investigation, charge sheet was filed.
2. Accordingly, the accused was charged U/s 302 IPC, to which the accused pleaded not guilty and claimed trial.
3. In support of its case, prosecution examined total 27 witnesses.
3.1. There is no eye witness to the incident in question examined by the prosecution. Ajay, the minor son of the deceased was not examined, apparently because of his tender age. During investigation statement U/s 164 Cr.P.C of Ajay was sought to be got recorded and Ajay was produced before a Magistrate examined as PW24, however, his statement could not be recorded by the Ld. Magistrate mentioning that the child was SC no. 46/13 Dtd...26.11.2014 Page 3 of 30 4 unable to give rationale answers to some questions initially put by the Ld. Magistrate. The Ld. Magistrate therefore did not record statement U/s 164 Cr.P.C of Ajay. The prosecution took no steps whatsoever to examine Ajay during the trial of this case. Therefore, the case of prosecution was primarily based on circumstantial evidence.
3.2. The complainant Deshraj has been examined as PW2, in which he has supported the case of prosecution. He deposed that when on receipt of information from his factory owner Sh. Amit Kapoor (PW7), he reached the factory, he found his two children weeping on the ground floor. He went on the second floor located room where he found dead body of his wife. There were strangulation marks on her neck. He came down and asked his son Ajay, and Ajay told that it was accused Mintu Mandal who came there and dragged the deceased inside the room. Thereafter, he called his brother Gyasi (PW1), who also reached the spot. The police was informed. Police officials came to the spot where proceedings were conducted and his complaint Ex.PW2/A was recorded. The witness deposed that the deceased had told him that accused used to keep an evil eye on her and used to visit her room in his absence and that he had asked the accused not to visit his house. He also deposed that the evening prior to the date of incident, the accused came to his room where they consumed meat and then at 9.00 PM the accused was seen off out of the factory. However, in the morning at 7 AM he saw the accused sitting, apparently concealing SC no. 46/13 Dtd...26.11.2014 Page 4 of 30 5 himself, near the water motor in the basement and then he was again sent out of the factory. Thereafter, he left his factory for his work and in the afternoon received information about the incident. The witness deposed that the police collected broken pieces of bangles and hair clip from the spot and also that on the next day the accused was arrested in his presence. The witness also deposed that after arrest of the accused, the accused led the police team to the bushes located near „pulia‟ in Sector-2, Bawana, and got recovered his muffler from the bushes, which muffler was seized by the police vide seizure memo Ex.PW2/G. The witness identified bangles, hair clip, clothes and bed sheet as Ex.P1 to P4, respectively. He also identified the muffler as Ex.P5. The clothes of deceased were identified as Ex.P-6. The witness also deposed that in the evening prior to the date of incident, the accused had threatened him to see him.
3.3. PW9 Bir Singh Chauhan was the person who first of all noticed the child of the deceased weeping at the factory at about 2.45 PM on the date of incident. He deposed that upon seeing the child weeping, he enquired from the boy as to why he was crying. On being asked by this witness, the boy aged five years told that one Mintu had pulled her mother. To be specific, the witness used the word that the boy replied "meri mamy ko mintu uncle ne gira diya". Upon hearing this response of the boy, the witness went to the room where he found the deceased lying. He immediately came down and informed the factory owner Amit Kapoor (PW7) on his telephone and then left. This witness was SC no. 46/13 Dtd...26.11.2014 Page 5 of 30 6 present at the spot since construction work in his nearby located factory no. N-33, Sector-2, DSIDC, Bawana was undergoing at that time.
3.4. PW7 Amit Kapoor corroborated the version of PW9 as well as the complainant PW2. This witness deposed that PW2 Desraj was kept as a chowkidar by him in his factory no. N-39 for about one and a half year prior to the incident and that Desraj was residing in his factory along with his wife and children on the second floor. i.e. top floor of the factory, in a room. The witness deposed that on the date of incident, he received call from PW9 informing that wife of his chowkidar appeared unwell and a crowd was outside his factory, upon which he called Desraj telephonically and asked Desraj to come to the factory. Subsequently, he received a call from Desraj who informed this witness that somebody had murdered his wife upon which this witness also reached the factory at about 7.30 to 8 PM. The witness deposed that thereafter he came to know that accused Mintu Mandal murdered the wife of Desraj.
3.5. PW1 Gyasi is the brother of complainant who also corroborated the version of complainant regarding receipt of call by the complainant; return of the complainant to the factory in the afternoon; then receipt of call from the complainant about the incident and; then this witness reached the factory and informed PCR at no. 100 from his mobile no. 9015180318. Although this witness also deposed that when he reached the spot, son of complainant and deceased namely Ajay told that Mintu came SC no. 46/13 Dtd...26.11.2014 Page 6 of 30 7 and murdered the deceased, but this part of statement of this witness has been duly confronted from the previous statement of this witness. In the statement U/s 161 Cr.P.C Ex.PW1/DA of this witness, no such fact that Ajay told this witness about murder committed by Mintu finds mentioned.
3.6. PW8 Rozuddin is examined by the prosecution to prove the fact that about the time of incident this witness saw the accused outside the factory where the incident took place. This witness deposed that accused used to work with this witness in the same factory for last few years and that on the night of 31.10.2011 the accused came and slept with him at about 9 to 10 PM when he was appearing drunk and he was also appearing in tension. The witness deposed that during sleep the accused was also murmuring something but he could not recollect what was being murmured. The witness also deposed that on 1.11.2011 the accused left the room early in the morning, and then at about 1 or 1.30 PM during lunch time when he was going to take lunch and was passing from near the factory no. N- 39, he saw the accused outside the factory. Thereafter, he did not see the accused and saw the accused only in court. The witness was partially declared hostile by the Prosecutor and was cross examined since initially the witness had told the investigating agency that he had seen the accused coming out of the factory no. N-39 and when he called the accused requesting the accused to stop the accused looked towards the witness but did not stop and hurriedly left towards the iron SC no. 46/13 Dtd...26.11.2014 Page 7 of 30 8 bridge, Sector-2, Bawana and the witness had also stated to the police that the accused was looking visibly nervous at that time, As against this part of statement given to the police, in his examination in chief PW8 deposed that though he saw the accused outside the factory in question but he did not see him coming out of the factory and he also could not speak to him and that though he intended to call him but he did not call him and that he saw the accused from backside only. On this aspect of the matter, when the witness was cross examined by the Ld. Prosecutor, the witness admitted that the accused left at 4.00 AM on 1.11.2011 and that he saw the accused coming out of the factory in haste and when he called him, the accused did not reply and went towards the iron bridge and that he was visibly nervous at that time.
3.7. Prosecution also examined PW10 Sumit Aggarwal, the factory owner where the accused used to work. This witness deposed that other workers in his factory had told him that few days prior to the incident the accused appeared disturbed and that he was not attending duty for those 2-3 days. The version of this witness that other co-workers of his factory told the witness that accused appeared disturbed, is hit by the principle of hearsay as other co-workers of accused have not been examined by the prosecution on this aspect of the matter.
3.8. Regarding the proceedings conducted at the scene of crime, PW6 HC Satbir; PW17 SI Anil Tushir; PW27 Inspector Kapil Dev and; PW13 Ct. Harpal, deposed that at the spot, crime SC no. 46/13 Dtd...26.11.2014 Page 8 of 30 9 scene was got inspected from the crime team; broken bangle pieces and hair clip were taken into possession; strangulation mark were noticed on the neck of deceased; rukka was prepared and; the case was got registered. It is also deposed that the case property recovered from the spot was sealed with the seal of KD belonging to PW27 and was taken into possession vide memo Ex.PW2/C. One bed sheet and white red colour shawl, another multi colour shawl were also recovered from near the dead body and sealed with the seal of KD and taken into possession vide memo Ex.PW2/D. 3.9. Regarding the arrest of accused and recovery of muffler, witnesses PW6 HC Satbir; PW20 Ct. Krishan Kumar and; PW27 Inspector Kapil Dev deposed that the accused was apprehended from Nand Nagri Tonga Stand on 2.11.2011 and at that time complainant was also with them. After his arrest, the accused made a disclosure statement and led the police to iron bridge, Sector-2, DSIDC, Bawana and got recovered the muffler. The muffler was taken into possession after sealing it with the seal of KD vide memo Ex.PW2/G. So far as the pointing out memo Ex.PW2/H of the place is concerned, the same is not admissible in evidence as the crime scene was already in the knowledge of the investigating agency and no fact can be said to have been discovered pursuant to the disclosure.
3.10. The remaining witnesses are more or less formal in nature.
3.11. PW3 HC Deep Chand was the duty officer who proved registration of FIR Ex.PW3/A, endorsement on rukka Ex.PW3/B, SC no. 46/13 Dtd...26.11.2014 Page 9 of 30 10 DD no. 28A Ex.PW3/C, DD no. 35A Ex.PW3/E and departure entry DD no. 4A dated 2.11.2011 Ex.PW3/F. 3.12. PW4 SI Prem and PW5 Ct. Ravinder were members of the crime team who inspected the spot. These witnesses proved photographs of the crime scene as Ex.PW5/B1 to B9 and the report of the In-charge, Crime Team PW4 as Ex.PW4/A. 3.13. PW11 SI Manohar Lal was the draftsman who prepared to the scaled site plan of the place of occurrence after inspecting the crime scene on 15.11.2011.
3.14. PW12 HC Mahilal is the malkhana moharrar who proved deposition of the three sealed parcels sealed with the seal of KD vide entry in the malkhana register Ex.PW12/A, on 1.11.2011 and he also deposed about deposition of three more pulindas with three sample seals of BSA Hospital on 11.11.2011. He also deposed that six parcels were sent to the FSL on 7.12.2011 through Ct. Shashi Kumar PW16 vide RC Ex.PW12/C. 3.15. PW16 Ct. Shashi also corroborated the last mentioned part of testimony of PW12.
3.16. PW15 ASI Bhagwan Devi proved DD no. 24A Ex.PW15/A lodged at 4.15 PM about the receipt of information of incident of this case in the police station on the date of incident.
3.17. PW18 Dr. Vijay Dhankar proved the post mortem report of the deceased. He proved that the cause of death of deceased was due to asphyxia due to strangulation by a ligature material about one day prior to the time of post mortem. His post mortem report SC no. 46/13 Dtd...26.11.2014 Page 10 of 30 11 is proved Ex.PW18/A. While conducting post mortem, following external injuries were noted by the doctor :-
1. Ligature mark 25 cm long reddish brown parchmentised was present around the neck extending from midline front of neck across left side and back of neck upto 7.5 cm below right mastoid process where it was 1.5 cm wide. The mark was 2 cm wide placed 8 cm below the chin, 1.7 cm wide placed 7 cm below the left mastoid process and 8 cm below the external occipital protuberance on the back of neck.
2. Abrasion 7 cm long reddish obliquely placed present on right front of neck extending from the right angle of mandible to the midline front of neck merging with the injury no. 1.
3. Graze abrasion 3 cm X 2 cm present on inner aspect of left front of neck extending above from injury no.1.
4. Multiple scratch abrasions over an area 2.5 cm X 1.5 cm present on left upper neck placed 1.5 cm below the mandible from a point 2.5 cm inner the left angle of mandible.
5. Multiple scratch abrasions over an area 1 cm X 1 cm present on left front of neck placed 4.5 cm below the left ear lobe.
6. Scratch abrasion 0.5 cm long present on midline front of neck placed 11 cm below the chin.
7. Scratch abrasion 0.5 cm long present on left lower front of neck placed 2 cm left to injury no. 6.
In the post mortem report, it is also mentioned that there was extravasation of blood present underneath the right Sternomastoid muscle over the middle third. Extravasation SC no. 46/13 Dtd...26.11.2014 Page 11 of 30 12 underneath the lower third of left Sternomastoid muscle. Extravasation of blood present underneath the Sternohyoid muscles on both sides at the lever of thyroid cartilage. Extravasation of blood present underneath Sternothyroid muscles on both sides at the level of thyroid cartilage and at the level of Thyroid cartilage. Mucosa of Pharynx, larynx and trachea were congested. Mucus secretions present along the walls of the trachea. Hyoid bone and thyroid cartilage showed no breakage.
3.18. PW19 Amarnath Singh the nodal officer from Idea Cellular Ltd. proved the mobile connection application of PW2 Desraj under mobile connection no. 9718399588 along with its call details for the period 1.10.2011 to 2.11.2011 along with requisite certificate U/s 65B of Indian Evidence Act as Ex.PW19/A, B & C. 3.19. Similarly, PW22 Rajiv Ranjan the nodal officer from Tata Tele Services proved the customer application form and mobile call details of the mobile no. 9289818963 for the period 1.10.2011 to 2.11.2011 standing in the name of accused Mintu Mandal along with Certificate U/s 65B of Indian Evidence Act as Ex.PW22/A, B & C. 3.20. PW21 Ct. Rajbir Singh simply carried copies of FIR to the senior police officers.
3.21. PW24 Sh. Deepak Wason was the Ld. Magistrate who could not record the statement U/s 164 Cr.P.C of Ajay because of his tender age.
SC no. 46/13 Dtd...26.11.2014 Page 12 of 30 133.22. PW14 Dr. Yudhvir Singh and PW26 Dr. N. S. Khurana both had examined the accused after his apprehension. PW14 deposed that he medically examined accused on 2.11.2011 vide MLC Ex.PW14/A. In Ex.PW14/A, it is mentioned that there were small abrasions and bruises over left hand and left side of face of accused and there was a heeled abrasion on left arm of accused on 2.11.2011 at 5.30 PM when the patient was examined. PW26 Dr. N. S. Khurana also examined the accused on 2.11.2011 at about 1.46 PM vide Ex.PW26/A. The witness deposed that he noticed superficial cut mark on left hand palmer region; one in between thumb and index finger and one on tip of index finger palmer aspect. He also noticed abrasion on left cheek of the accused and he also noticed brownish abrasion on left arm latterly which he noted down in his report Ex.PW26/A. This document reveals that the accused was examined at 1.46 PM on 2.11.2011.
3.23. PW25 Ct. Devender Kumar was the concerned computer operator who typed the FIR on the computer.
3.24. The Investigating officer PW27 inspector Kapil Dev, besides his deposition as already referred above, deposed that on 18.11.2011 after recovery of the muffler in question he obtained subsequent opinion of the doctor, and the autopsy surgeon Dr. J. V. Kiran after examining the muffler gave detailed opinion Ex.PW27/H. As per Ex.PW27/H, Dr. J. V. Kiran gave opinion that the injuries no. 1, 2 & 3 mentioned under the heading external examination in the post mortem report of the deceased can be SC no. 46/13 Dtd...26.11.2014 Page 13 of 30 14 caused by the ligature material i.e. muffler and that those three injuries on the neck as mentioned under the internal examination in the post mortem report were sufficient to cause death in the ordinary course of nature.
4. On completion of the prosecution evidence, all the incriminating evidence was put to the accused in his examination U/s 313 Cr.P.C. In his examination, the accused admitted that he knew complainant Desraj and his family but he denied that he ever visited the house of complainant in his absence or he kept an evil eye on the deceased. The accused claimed that he did not visit house of Desraj ever and instead claimed that Desraj and he used to sit in the evening together outside the factory near house of Desraj. When he was questioned regarding the visit of this accused dated 31.10.2011 in the evening, the accused claimed that he did not visit house of Desraj that evening and he did not ask anybody to prepare meat for him. When he was questioned that he was seen by Desraj at 7 AM on 1.11.2011 in the basement of the premises, the accused denied that he was present there early in the morning but the accused did not offer any explanation as to if he was not there in the factory in the basement at 7 AM, then where he was. The accused however admitted that on 1.11.2011, he along with Desraj left the room of Desraj after taking breakfast for their respective work places. He also admitted that wife and children of Desraj remained in their house located in the premises. He denied that after having left SC no. 46/13 Dtd...26.11.2014 Page 14 of 30 15 house of Desraj, after taking breakfast, he did not visit the house of Desraj again. The accused however admitted that he was apprehended from Tonga stand, Nand Nagri but he claimed that he was not apprehended on 2.11.2011 and rather he was apprehended on 1.11.2011 at 8.00 PM. He admitted that Tata Indicom mobile was recovered from his possession. The accused denied having made any disclosure statement or having got recovered any muffler. The accused admitted that he was using 9289818963 but he declined to identify the mobile no. 9718399588 which was being used by the deceased. However, he admitted that he used to sometimes talk to deceased Rani but claimed that he used to talk to her on the asking of her husband Desraj but he did not frequently spoke to her. Accused admitted that he was working in the factory of Sumit PW10. He also admitted that he did not go to his job on 1.11.2011. He however claimed that he was not present at the spot at the time of incident and that he has been falsely implicated. Though the accused in his statement claimed that at the time of incident, he was not present at that place but he did not offer any explanation as to if he was not present at the spot, where he was on the date and time of incident. Regarding injury sustained by him and noted by the doctor on his body, the accused claimed that he sustained those injuries during the office work in which he was required to load and unload iron sheets physically with his bare hands and he usually used to sustain such injuries during SC no. 46/13 Dtd...26.11.2014 Page 15 of 30 16 his work. The accused tried to explain that Desraj had taken a loan of Rs. 45,000/- from him and that he was demanding that amount back. He also claimed that his signatures were obtained on blank papers which were converted into documents of this case later on. Though, the accused claimed that he has been falsely implicated and it is a false case against him, but the accused did not come up with any plausible explanation as to why the witnesses would falsely depose against him, more particularly, PW9 Bir Singh Chauhan, PW8 Rozuddin or PW7 Amit. The accused did not opt to lead any evidence in his defence. Though the accused in his statement claimed that Desraj had taken a loan of Rs. 45,000/- from him but no such defence was suggested to PW2 Desraj during his cross examination.
5. I have heard Ld. Prosecutor and Ld. Amicus curiae for the accused.
6. As is clear from the above discussion, there is no eye witness to the incident in this case, and if at all any eye witness was there, he was Ajay, the minor son of the deceased, who could not be examined due to his tender age. The case of prosecution thus is based on circumstantial evidence.
7. The prosecution first of all sought to prove that the accused was seen near the place of crime at or about the time of occurrence. In this regard, testimony of PW8 is only relevant to be discussed. PW8 specifically deposed that not only on 1.11.2011 the accused left very early in the morning at 4 AM, but SC no. 46/13 Dtd...26.11.2014 Page 16 of 30 17 also that when he was passing from near the factory at about 1 or 1.30 PM where the murder was committed, he saw accused coming out of the factory and he was visibly in haste and nervous. This witness even called the accused but instead of responding, the accused went towards the iron bridge. Though, initially Rozuddin did not depose that he saw the accused coming out of the factory and deposed that he only saw him outside the factory, but in the cross examination of Ld. Prosecutor the witness indeed admitted that he saw the accused coming out of the factory. In the cross examination of this witness by the accused absolutely nothing could be brought by the accused either to show that this witness was not present outside the factory at the relevant time or that the accused was not present at that place. When the accused was questioned in his statement about this incriminating evidence, the accused stated that he was not at the place of crime at the relevant time. But then the accused did not even try to offer an explanation as to where the accused was at that time, if he was not present at the place of occurrence. Rozuddin has absolutely no reason to falsely depose against the accused. The accused has not suggested that he has any kind of enmity with Rozuddin or, Rozuddin nurtures any kind of grudge against the accused. All that was tried to be suggested was that Rozuddin deposed against the accused at the instance of investigating agency. This court has no reason to have any kind of suspicion about truthfulness of deposition of this witness.
SC no. 46/13 Dtd...26.11.2014 Page 17 of 30 187.1. From the testimony of Rozuddin, one thing is established beyond reasonable doubt that the accused was seen coming out of the factory at or about the time of occurrence and he was visibly nervous while coming out of the factory and he left the place in haste despite the fact that Rozuddin had called the accused. By not responding to the call of Rozuddin and leaving the scene of crime in haste, visibly nervous, strongly indicates that the accused was involved in the crime of this case. He has not explained his presence at the scene of crime, at the relevant time. It may also be added that the accused in his statement admitted that he did not go to his job on 1.11.2011 i.e. date of incident. Perusal of the post mortem report reveals that the post mortem of the deceased commenced at 3 PM and it was conducted up to 4.50 PM on 2.11.2011. The time since death as opined in the post mortem report is about one day. In examination of the stomach of the deceased 50cc semi digested food was noticed which also reveals that the time of offence in this case was about some time after the deceased consumed lunch. i.e. around same time when witness Rozuddin saw the accused coming out of the factory in question. When the accused admits that he did not attend his duties on the date of incident, and he was seen by one witness coming out of the place of crime, and he also does not offer any explanation as to where he was if he was not at the place of crime, is a circumstance against the accused.
8. The second set of circumstances sought to be proved SC no. 46/13 Dtd...26.11.2014 Page 18 of 30 19 against the accused is the pre crime conduct of the accused. It may be mentioned here that the accused admits that he was known to the deceased and her family. We need not go into the question as to for how long the accused knew the deceased. From the answers given by the accused in his statement, it is clear that the accused knew the deceased and he also used to talk to the deceased on telephone. Though, he claimed that he used to talk to the deceased on telephone only at the instance of her husband but we need not discuss that defence, since at whose incident he used to talk is not necessary for decision of this case. What is important is that he knew the deceased and he used to talk to her.
8.1. It has come in the evidence of PW2 Desraj that one day prior to murder, the accused came to the room of deceased, there PW2 husband of the deceased and the accused consumed meat. Though initially it was the case of prosecution that the accused and PW2 consumed liquor also, but PW2 denied having consumed liquor. Be that as it may, it is not necessary to find out whether they consumed liquor or not, albeit what is relevant is the accused was present in the room of deceased one evening before. Ultimately he was asked to leave the factory at about 9 PM or thereafter. It has come specifically in the evidence of PW2 that the accused threatened PW2 to see him that evening before leaving. Though the exact words of the threat extended to PW2 by the accused vary in the deposition from as stated by PW2 in his previous statement, but more than the exact words of SC no. 46/13 Dtd...26.11.2014 Page 19 of 30 20 threat extended what is relevant is that threat was extended. Ostensibly, the said threat was given by the accused on account of being spurned of his efforts in making advances towards the wife of PW2. PW2 has no reason to depose falsely against the accused. In his statement given to the police as well as in the court PW2 categorically deposed that the accused threatened him one day prior to the date of occurrence.
8.2. The next pre crime conduct of the accused creating strong suspicion against him is that though the accused was seen off by PW-2 from the factory at about 9 PM or thereafter on 31.10.2011, but when PW2 went in the basement early in the morning of 1.11.2011, he saw the accused sitting in a manner concealing himself in the basement of the factory near water motor. This conduct has not been explained by the accused against him. The fact that the accused was seen in the basement of factory early in the morning of the day of crime by PW2 gets corroborated from the testimony of PW8 Rozuddin who deposed that the accused left the room very early in the morning at 4 AM on 1.11.2011. It may be mentioned that the accused slept with PW8 Rozuddin on the night of 31.10.2011 i.e. after he was seen off and seen out of the factory where deceased and PW2 were residing. That night, as per PW Rozuddin, the accused also was murmuring during his sleep. The accused has not explained as to where did he vanish so early in the morning on the day of crime after he slept with Rozuddin the previous night and, where he was if he was not at SC no. 46/13 Dtd...26.11.2014 Page 20 of 30 21 the factory of deceased. His conduct of being seen concealing himself in the basement of the place of occurrence again is a very strong circumstance against the accused creating a strong suspicion as to his normal conduct.
8.3. After the accused was noticed by PW2, in the morning of the day of crime, PW2 shooed away the accused from the factory in question. Thereafter, he was again seen during lunch time near about the time of crime at the factory by PW Rozuddin.
8.4. The pre crime conduct of the accused as discussed above is indeed highly suspicious against him and the prosecution succeeds in proving that the conduct of accused was not normal but highly suspicious before the crime was committed.
9. The third circumstance sought to be proved by the prosecution is motive. Motive is always an important factor in a case based on circumstantial evidence. The motive alleged against the accused is that he had developed some attraction towards the deceased. It is deposed by PW2 categorically that the deceased had told him that the accused used to visit the house of PW2 in absence of PW2. Though the accused in his defence claimed that he did not visit house of deceased, particularly in absence of her husband, and he also claimed that he never visited house of the deceased but in his statement itself he admitted that on 1.11.2011 he left the room of Desraj PW2 for their respective work places after having breakfast. He also admitted that the deceased wife of PW2 and his children remained in their house located in the premises after he and Desraj left the premises, SC no. 46/13 Dtd...26.11.2014 Page 21 of 30 22 after the so called breakfast together. The fact that accused at one place claimed that he never visited house of Desraj and at another place claimed that he consumed breakfast in the house of Desraj on the date of incident reveals that the accused was not coming up with true explanation.
9.1. PW2 when deposed that his deceased wife had told him that accused kept an evil eye on her, his testimony is inspiring and he has no reason to so falsely so allege against the accused. Even otherwise, it is nobody‟s case that from the house of the deceased any valuables or articles were found missing. Though some articles were found lying scattered in the room where the murder was committed but it is nobody‟s case that any theft was committed from the house. Scattering of articles could have been a result of scuffle between accused and the deceased at the time of commission of crime, on account of resistance put forth by the deceased. The fact that no article was stolen from the house indicates that there was some other motive in committing the murder. There is no evidence of forcible entry in the house of deceased, which also indicates that the offender was known to the family. The accused was known to the family and also had a motive to commit the crime. This circumstance also is proved satisfactorily against the accused.
10. The next circumstance sought to be proved against the accused is his post crime conduct. Though in his statement the accused claimed that after he took breakfast with PW2 at his residence, both of them left for their respective work places, but SC no. 46/13 Dtd...26.11.2014 Page 22 of 30 23 then he also admitted that he did not go to his work at all on that day. After the crime was conducted the accused was seen by PW Rozuddin coming out of the factory in haste and visibly nervous. He did not stop despite being called by Rozuddin. He did not respond either. Thereafter he did not go to his work place also. Neither the accused has examined anybody, nor is any such thing even claimed by the accused, to show that he was present at any other place, either at the time of crime or the time after the murder was committed. Accused admits that he was apprehended from Tonga Stand, Nand Nagri. He did not explain as to what he was doing there and for what purpose he went there. Though the accused claimed that from Nand Nagri, Tonga Stand he was apprehended on the evening of 1.11.2011 and not early morning of 2.11.2011, but in this regard testimony of PW2 Desraj, PW Ct. Krishan Kumar, PW6 HC Satbir and PW27 Inspector Kapil Dev clearly establishes that the accused was apprehended on 2.11.2011 early in the morning and not in the evening of 1.11.2011. If the accused had nothing to hide and nothing to feel guilty about, there was no reason for him to have absented himself from his duties on 1.11.2011 or from his usual place where he used to sleep on the night of 1.11.2011 and for being present at Nand Nagri Tonga Stand without any rhyme or reason. This post crime conduct of the accused also points a finger of suspicion against him.
11. The next circumstance proved against the accused is the recovery of the ligature material, i.e. his muffler which the SC no. 46/13 Dtd...26.11.2014 Page 23 of 30 24 accused got recovered from bushes at iron bridge, Sector-2, Bawana, DSIDC. PW6, PW2, PW20 and PW27 have all categorically deposed that accused got recovered the said muffler after his arrest from the bushes. Though, it is argued by the Ld. Counsel for accused that some of the witnesses admitted that such muffler are easily available in the market and that the place of recovery was accessible to all, but no weightage can be given to the said argument.
11.1. It is not whether a place is accessible to all and sundry which is a crucial fact in deciding knowledge of a person about a thing kept at a particular place. What is important is whether that thing was concealed in a manner that it could not have been ordinarily noticed or seen by others even at an open and accessible place, but the accused had knowledge of it being concealed at that place. It has come in the evidence that the muffler was recovered from inside the bushes. Thus, it is nobody‟s case that the muffler was visible to all & sundry.
11.2. What is also material is that the muffler was recovered from a place not very far away from the scene of crime. The crime committed was indeed in winters and therefore, one cannot claim that the ligature material was uncommon to be used by people during that time of the year. Muffler being commonly used in winters was readily available with accused at the time of crime. It is also not uncommon that people from the state of Bihar, from where the present accused hales, quite commonly use mufflers. It may also be mentioned here that Rozuddin SC no. 46/13 Dtd...26.11.2014 Page 24 of 30 25 specifically deposed that when he saw the accused coming out of the factory, the accused hastily went towards the iron bridge. It is the same iron bridge from where recovery of muffler was effected. The accused did not offer any explanation as to how he was aware that the said muffler was lying at that place. Rather the accused tried to brush aside this piece of evidence by claiming that no such recovery was got affected. The recovery was got affected by the accused is proved beyond reasonable doubt by the recovery witnesses.
11.3. The doctor who conducted post mortem also gave subsequent opinion that the ligature marks on the neck of deceased were possible with this muffler or such mufflers. It may be mentioned here that the cause of death of accused was asphyxia consequent upon strangulation and there were ligature marks on her neck. The deceased‟s death was homicidal and not suicidal is also an important point worth to be noted.
11.4. Thus, this circumstance of recovery of muffler is also a strong circumstance proved against the accused.
12. The next circumstance sought to be proved against the accused is the injuries present on his body which were due to the result of resistance put forth by the deceased during crime. In this regard, PW14 Dr. Yudhvir Singh and PW26 Dr. N. S. Khurana proved injuries on the body of accused vide Ex.PW14/A and Ex.PW26/A. It may be mentioned that it was Dr. N. S. Khurana who had examined the accused at 1.46 PM on 2.11.2011. There was a superficial cut mark on the left hand SC no. 46/13 Dtd...26.11.2014 Page 25 of 30 26 palmer region, one in between thumb and index finger and one tip of index finger palmer aspect; one abrasion on left cheek and; abrasion on left arm latterly. There is no plausible explanation by the accused to explain these injuries. Though the accused sought to offer an explanation that those injuries were caused by loading and unloading of material during his job but then the accused did not attend his job either on 1.11.2011 or on 2.11.2011. He did not suggest any such defence to PW Rozuddin or to his factory owner Sumit. Abrasion on left cheek remains unexplained. These injuries appears to have been sustained by him during his scuffle with the deceased at the time of crime. PW23 Dr. Kavinder Kumar also examined the accused on 3.11.2011 at 2.19 PM and he also noted a superficial incised wound over left side of palm and superficial incised wound over right side of index finger on tip.
13. It may be mentioned that in the post mortem report of the deceased Ex.PW18/A doctor noted certain injuries on the body of the deceased which were result of resistance put forth by the deceased. In the subsequent opinion given by Dr. J.V.Kiran, in his report Ex.PW27/H, the doctor opined that the injuries no. 4, 5, 6 & 7 present on the body of deceased could be caused by nails during struggle between accused and the victim. It is this doctor who proved possibility that muffler got recovered by the accused could have been used in strangulating the deceased. Though, Dr. J.V.Kiran has not been examined and this document has been proved by investigating officer PW27, but then no SC no. 46/13 Dtd...26.11.2014 Page 26 of 30 27 objection whatsoever, as to the mode of proof of this document, was raised from the side of accused when this document was being exhibited in evidence. Once the accused did not challenge the mode of this document, now the accused cannot be permitted to challenge the mode of proof of this document. From this document, it is clear that before the deceased was strangulated and she died, she tried to put all possible resistance which caused injuries upon the accused also. Presence of injuries on the accused which has remained unexplained is also a strong circumstance against the accused.
14. The last circumstance sought to be proved against the accused is that when PW9 Bir Singh Chauhan saw the minor son of deceased Ajay outside the factory and he enquired as to the reason as to why he was crying, Ajay told Bir Singh Chauhan that it was accused Mintu who pulled his mother. The exact word used by Ajay to Bir Singh Chauhan and as deposed by Bir Singh Chauhan are "meri mamy ko mintu uncle ne gira diya." PW2 also spoke to his minor son about the incident and to whom also the minor son told that the offender was Mintu. This part of evidence is sought to be used against the accused as res gestae.
14.1. So far as plea of res gestae is concerned, it would be worth mentioning that as per the deposition of PW9 Bir Singh Chauhan, he spoke to the child at about 2.45 PM. Thereafter husband of deceased spoke to the child after 3.45 PM after he SC no. 46/13 Dtd...26.11.2014 Page 27 of 30 28 reached the factory on receipt of information. There was therefore sufficient lapse of time between the actual time of commission of offence and the time when the boy told PW9 and PW2, the name of the accused. The time gap between the time of offence and when the boy spoke to PW2 & PW9 was sufficient to allow the time of tutoring and therefore, what Ajay told PW2 and 9 cannot be used as res gestae. To be relevant under Section 6 of the Evidence Act, such statement must have been made contemporaneously with the fact in issue, or at least immediately thereupon and in conjunction therewith. If there is an interval between the fact in issue and the fact sought to be proved then such statement cannot be described as falling in the "res gestae" concept.
15. Ld. Counsel for the accused stressed a lot on the point that Ajay has not been examined by the prosecution. Indeed Ajay has not been examined, but it appears that he was not examined on account of his tender age. No adverse inference can be drawn against the prosecution for non examination of Ajay. This child was produced before a Magistrate for recording of his statement U/s 164 Cr.P.C but even the Magistrate was not satisfied that the child was able to give rationale answers, therefore, his statement could not be recorded even during investigation. Therefore not much can be inferred from the fact of non- examination of Ajay during trial.
16. The other circumstances have been proved against the accused beyond reasonable doubt establishing his guilt.
SC no. 46/13 Dtd...26.11.2014 Page 28 of 30 2917. The argument of the accused that the muffler allegedly got recovered by the accused was not stained in mud or dust, and therefore recovery from bushes in open place is doubtful, is also a futile argument. The scene of crime in the present case was not in some open ground or park where after the commission of murder muffler was thrown somewhere else so that it could have been claimed that the pieces of grass or leaves or sand from the place of crime can be connected to place of recovery of muffler. Instead in this case, crime was committed in a room devoid of such grass, leaves or sand and therefore whether there was any such thing around on the muffler at the time of recovery really does not matter. The witnesses have categorically deposed that muffler was recovered from grass at iron bridge. Even if there was no leaf detected, there is no reason to doubt testimony of these recovery witnesses which include not only police officials but also PW2. These recovery witnesses have no reason to falsely depose against the accused.
18. The sum & substance of the above discussion is that the prosecution has succeeded in proving the above mentioned incriminating circumstantial evidence beyond reasonable doubt against the accused. And when these circumstances proved against the accused are taken together they point towards the guilt of accused and rules out his innocence in the present crime. Strangulating somebody with a ligature is itself sufficient to indicate intention to kill or at least knowledge can be imputed that one would get killed. The act of accused is covered within SC no. 46/13 Dtd...26.11.2014 Page 29 of 30 30 the definition of murder. The accused is thus found guilty of having committed murder of the deceased and is convicted U/s 302 of IPC.
Announced in the open court on 26.11.2014. Dig Vinay Singh ASJ/Special Judge : NDPS Rohini Courts(N-W)/Delhi.
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