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Delhi District Court

State vs . Aman Kumar Rastogi on 9 August, 2011

    IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS 
         JUDGE­II (NW): ROHINI COURTS: DELHI

Session Case No. 1105/09
Unique Case ID No. 02404R6286

State                         Vs.             Aman Kumar Rastogi
                                              S/o Sh. Mange Lal
                                              R/o 4­D CC Block,
                                              Shalimar Bagh, Delhi
                                              (Convicted)


FIR No.:                                      544/04

Police Station:                               Shalimar Bagh

Under Section:                                302/376/201/511 IPC



Date of Committal to sessions court:                         7.12.2004

Date on which orders were reserved:                          16.5.2011

Date of decision:                                            12.7.2011


JUDGMENT:

As per the allegations, in the intervening night of 25/26.6.2004 at unknown time at unauthorized portion of roof 4­D, Block CC, Shalimar Bagh the accused Aman Kumar Rastogi attempted to commit rape on 'A' (name of the victim is withheld since it is a case of aggravated sexual assault) against her will and without St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 1 her consent and when she objected to his advances, he committed the murder of 'A' by intentionally causing hurt. It is further alleged that the accused knowing or having reasons to believe that the murder of 'A' had been committed, also caused the evidence of murder of 'A' to disappear by creating the evidence of robbery with an intention to screen himself from legal punishment.

BRIEF FACTS/ CASE OF THE PROSECUTION:

The case of the prosecution is that on 25.6.2004 at about 1:10 am (mid night) SI Ramesh Dutt Sharma received DD No.4A pursuant to which he along with Ct. Suresh reached at House No. 4D, CC Block, Shalimar Bagh where dead body of a lady was lying in the room on unauthorized portion of the said house. The dead body was identified as that of 'A' by her father namely Mahender Muni. There were strangulation marks on the neck of the deceased and blood was oozing out from the mouth, one chappal was lying near the bed, one key ring containing three keys, two locks and one helmet, one key ring containing two keys and one small doll were also found lying there and the jali of window of room was found removed. On inquiry Mahender Muni told the police that his daughter 'A' was having four golden bangles, one gold chain and left ear ring of gold which she was wearing, were missing and on inspection of the spot it appeared that deceased had struggled before her death. In the meantime Inspector St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 2 K.C. Negi reached the spot and the present case was got registered. The father of the deceased namely Mahender Muni suspected the accused Aman Kumar Rastogi being Jeth of the deceased and on sustain interrogation the accused Aman Rastogi admitted and confessed his guilty that he had committed the murder of 'A' and thereafter led the police to the roof and got recovered the jewellery items concealed by him from the pot. Thereafter the accused was arrested and in his disclosure statement the accused Aman Kumar Rastogi admitted his involvement and disclosed that he tried to commit rape upon the deceased and when she resisted, he become apprehensive of being exposed, strangulated 'A' and killed her. After completion of investigations, the accused was charge sheeted. CHARGE:

Charges under Sections 376/511/302/201 Indian Penal Code were settled against the accused Aman Kumar Rastogi to which he pleaded not guilty and claimed trial.

EVIDENCE:

In order to prove its case the prosecution has examined as many as twenty witnesses.

St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 3 Eye witnesses/public witnesses:

PW1 Sh. Mahender Muni is the father of the deceased who has deposed that the deceased 'A' was his daughter who was married to Anshu Rastogi son of Mange Ram Rastogi on 19.11.2000. The witness has further deposed that the accused Aman Kumar Rastogi was the eldest brother of Anshu Rastogi and the in­laws of his daughter were residing at house No.4 D, CC Block, Shalimar Bagh, Delhi. According to him, after marriage of his daughter, the father of Anshu Rastogi raised one extra floor unauthorizedly in their premises and he had paid a sum of Rs. Two Lacs in two installments on their demand and his daughter after marriage was shifted on the fifth floor. He has further deposed that there were two portions in the said extra floor. In one portion his daughter 'A' was residing with her husband whereas in the other portion accused Aman Kumar Rastogi was residing. The witness has further deposed that on the night intervening 25th and 26th of June, 2004, while he was sleeping in his house at Gurgaon along with his family, at about 11:40 PM accused Aman Kumar Rastogi made a telephone call at his residence and informed him that his daughter 'A' was dead and he was unable to say anything about her death and asked him to reach immediately. According to the witness, the accused further informed him that 'A' was having pain in her stomach and that she was bleeding from her nose and on getting this information he took up a taxi and reached St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 4 their house at Shalimar Bagh along with his son Gopesh Kumar. He has testified that they reached the house of the accused at about 1.10 or 1.15 a.m. and on reaching the house they found that police had already arrived there and accused Aman Kumar Rastogi and his wife were also present besides Anshu, the husband of his daughter 'A' who was present at the stairs. When he reached the house, police was carrying out the investigation and when he tried to enter, he was stopped by the police. However, after sometime when he introduced that he was the father of 'A' the deceased, he was permitted to go inside the room and on entering the room he found that the dead body of his daughter 'A' was lying on the double bed and the police officials were making inquiries from accused Aman Kumar Rastogi. PW1 has deposed that the neck of 'A' was bent downward outside the double bed and the nostrils were full of blood. According to him, there were some injury marks on the forehead as well as below one of the eyes and there were some ligature mark on the neck and he observed that the gold bangles which his daughter used to generally wear missing. He has further deposed that there was no jewellery in the neck and one ear ring of the left ear was also missing. According to the witness, there was one blood stained helmet was lying by the side of the bed and one lock also having blood stains was also lying and besides that one sandal, one doll, one button which were also found lying at the spot. He has also deposed that he suspected that St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 5 accused Aman Kumar Rastogi might be person responsible for the crime which fact he told to the police and when police made sustained inquiries (jor dekar poochha), the accused Aman Kumar Rastogi confessed his guilt and disclosed that he committed murder of 'A' and had removed the jewellery from her person and stated that he had concealed the jewellery items in a pot on the roof top. The witness has also deposed that thereafter, he along with his son Gopesh Kumar, police officials and accused Aman Kumar Rastogi went upstairs, from where accused Aman Kumar Rastogi took out the jewellery items and one screw driver from a pot which was lying concealed there. He has further deposed that he had requested the police to call the SDM so that the entire proceedings may be carried out in his presence but his request was declined and despite his request police did not take the finger prints of accused Aman Kumar Rastogi nor seized the wet clothes which were lying in the bath room. The witness has further deposed that the bed sheet on which the dead body of his daughter 'A' was lying was not having any blood stains nor her clothes were having any blood stains and it seemed that the wearing apparels of his daughter and the bed sheet were replaced and the police continued their proceedings. PW1 has also deposed that police had taken into possession one lock and helmet and the articles were seized and taken into possession vide memo Ex.PW1/A but he does not remember the initials of the seals. The witness has also deposed that the button was St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 6 also taken into possession after sealing it vide memo Ex.PW1/B and one broken tooth was also taken into possession after sealing the same vide memo Ex.PW1/C. According to him, one bunch of keys, one lock another bunch of key, one doll and one chappal were also taken into possession from the spot vide memo Ex.PW1/D and the police had also seized one shirt of accused Aman Kumar Rastogi which he was wearing at that time after sealing the seal which was taken into possession vide memo Ex.PW1/E. He has deposed that the jewellery articles which were produced by the accused included four gold bangles, one gold chain, one ear ring which were taken into possession after sealing in a parcel with the seal and the screw driver as well as the jewellery articles were also taken into possession vide memo Ex.PW1/F. According to the witness, the dead body of his daughter was thereafter sent for postmortem. He has further deposed that though he had requested the police to seal the room in which the dead body of his daughter was recovered but did not seal that room rather the police put their lock. PW1 has further deposed that the postmortem of the dead body was conducted on the next day and he had identified the dead body of his daughter vide memo Ex.PW1/G. He has also deposed that one ear ring of right ear was taken into possession vide memo Ex.PW1/H. According to PW1, after postmortem the dead body of his daughter 'A' was handed over to St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 7 them vide receipt Ex.PW1/I. The witness has correctly identified the case property i.e. the helmet which is Ex.P­1, lock which is Ex.P­2, button which is Ex.P­3, tooth which is Ex.P­4 and shirt which is Ex.P­5 to be the same which were seized by the police. It has been observed by the Court that the fifth button of the shirt was missing. However, the fifth button was produced separately in court which had been exhibited as Ex.P­4 which button was identical and matching the other buttons stitched on the shirt Ex.P­5. He has also identified the shirt and salwar which are Ex.P6/1 and Ex.P6/2 to be the same which her daughter 'A' was wearing and were seized by the police; pant which is Ex.P­7, bunch of three keys which is Ex.P­8, lock which is Ex.P­9, bunch of two keys which is Ex.P­10 one toy doll which is Ex.P­11 and Chappal which is Ex.P­12 as the same which were lifted from the spot and taken into possession by the police in his presence. The witness has further identified the ear ring which is Ex.P­13 and the same was taken by the police from ear of the dead body of his daughter; four gold karas, one gold chain and one ear ring which are collectively Ex.P­14, chain Ex.P­15 and one ear ring Ex.P­16. According to him, the accused got recovered the four gold karas from the terrace of fourth floor from the broken pot lying near the garbage and he also identified a screw driver as Ex.P­16. St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 8

In his cross­examination, the witness has deposed that he had paid a sum of Rs.50,000/­ on 12.03.2000 and a sum of Rs. One Lakh on 12.04.2000 and had paid the above said amount in cash. He has further deposed that the amount was paid as per the demand made by the father of the accused but has denied the suggestion that no demand was made by the father of the accused. He has also deposed that no receipt was obtained by him and he had not withdrawn this amount from the bank and he paid a sum of Rs.50,000/­ on 09.01.2000 in the presence of his Mama Tulsi Ram as he was related to the family of accused. The witness has further deposed that his statement was recorded by the police on 26.06.2004 but he had not stated to the police that he had paid Rs. Two Lakh in three installments and that the amount was demanded by the father of accused for construction of the house. He has denied the suggestion that no construction was raised after taking money from him and has deposed that he had demanded Rs. Two Lakh back but he does not remember the dates on which he demanded Rs. Two Lakh back. He has also deposed that he had not got issued any legal notice for the recovery of the said amount and till date he had not taken any action against the accused or his house for the return of the said amount. He has denied the suggestion that no amount whatsoever was ever demanded by Mange Lal at any point of time or that he did not pay any amount to Mange Lal Rastogi amounting to Rs. Two Lakhs in various installments stated above by St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 9 him. The witness has further denied the suggestion that he was raising the question of the advancement of Rs. Two Lakh with the ulterior objective to cause prejudice to the accused. This witness has further deposed that he lived in Gurgaon and he reached the spot at about 1:10 AM. He has admitted that police did not allow him to enter the room in which the dead body of his daughter was lying but he is unable to tell the name of the police officer who had stopped him. He has further deposed that when he went inside the room he was told by the police persons that his daughter died due to strangulation by a dupata but he doubted that his daughter had been strangulated with the help of a wire or a rope. According to him, no wire or rope was taken into possession by the police in his presence despite his insistence to take into possession the same. He also stated that no dupatta was taken into possession in his presence. The witness has further deposed that he had not given anything in writing to the police with regard to non taking into possession of wire, rope or dupatta. He is unable to tell when the accused was taken to police station but according to him, the accused was taken away by the police at about 2/2:30 a.m. and he had not accompanied the accused or the police and his son had also not accompanied them. PW1 is unable to tell whether any public person had accompanied the police or not and whether the accused was straight away taken to police station from the said room, where the dead body of his daughter was lying. He has testified that inquiries St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 10 were made from the accused, however, his statement was not reduced into writing in his presence. He is unable to tell the total number of DDA flats in the society but states that there were many flats adjacent to the flat where the incident took place. According to him, when he reached the matrimonial home of his daughter forty to fifty public persons must have gathered there but he is unable to tell the number of chowkidars in the colony and states that two chowkidars were there on the main gate. He is unable to tell whether the police had asked the public persons present there to join the investigation and all the recovery memos were not witnessed by any other public witness except him and his son. He has denied the suggestion that all the recovery memos were prepared in the police station or that all the memos have been fabricated. According to PW1, he had not stated to the police in his statement that he had given Rs. Two Lakhs in installment to the father of the accused but states that he had mentioned this fact in a complaint before the Magistrate. He has admitted that his statement was recorded twice by the police and stated to the police at the time of his second statement that he had given Rs. Two Lakhs in installments to the father of accused. He has also admitted that in his statement dated 26.04.2004 he had not mentioned about Rs. Two Lakhs nor there was any mention about the return of dowry articles. The witness has further deposed that he had not mentioned anything about the construction of the room in his St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 11 statement dated 26.04.2004 and he had filed the complaint before the Magistrate within thirteen days of the death of his daughter. According to him, the complaint filed by him under Section 498A/394/302/201 r/w Section 34 Indian Penal Code is Ex.PW1/DA and he has admitted that he filed the said complaint on 10.09.2004. The witness has also deposed that there was some other complaint which was filed by him after thirteen days of the death of his daughter (wrongly typed as father whereas it should be daughter and is required to be read as such). He has further deposed that he had filed a complaint before higher police officers i.e. DCP of the area and the Human Rights Commission which complaints dated 08.07.2004, are Ex.PW1/DA­1, PW1/DA­2 and PW1/DA­3. According to him, he had not sent any reminder in respect of the above said complaints and has deposed that his statement was not recorded by any police official in respect of the complaints. He has also testified that he personally met the SHO, Investigating Officer and ACP regarding the complaints filed by him. PW1 has admitted that no action was taken by the police on his above said three complaints and that his above said complaints were not filed along with the challan nor they find mention in the report under Section 173 Cr.P.C. The witness has further deposed that he had not seen the challan before he had filed the complaint Ex.PW1/DA but he could not say about the counsel who had filed the St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 12 said complaint. He does not remember if he had asked his counsel to inquire about the challan and has deposed that his complaint Ex.PW1/DA was prepared by his counsel at his instance and has admitted that in his complaint Ex.PW1/DA he had made his son in law Anshu as one of the accused. He has also deposed that he had asked the investigating officer to proceed against other relatives of accused and that his statement under Section 161 Cr.P.C did not find mention about the other relatives of the accused but states that he had given written in writing to SHO Shalimar Bagh with copies to DCP, Police Commissioner regarding harassment and torture by in laws of his daughter and the photo copy of complaint is Ex.PW1/DA­4. According to the witness, no action was taken on his complaint Ex.PW1/DA­4 as per his knowledge but he had given reminders to higher authorities. He has admitted that despite reminders no action was taken against the other relatives of the accused and he was waiting for the police action and thereafter waiting for about two and a half months he filed complaint before Ld. M.M. as no action was taken. According to him, he had stated to the police that he had paid Rs. Two Lacs in installments to the father of the accused. He was confronted with his earlier statement Ex.PW1/DA­5 where it was not so recorded. The witness has further deposed that he had not stated to the police in his statement under Section 161 Cr.P.C. that his daughter was being St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 13 harassed for dowry and his daughter had not filed any written complaint against the accused and his family members but states that she used to complaint to him and other family members against harassment for demand of dowry. The witness has testified that his daughter had not filed any complaint in writing regarding theft of jewellery and states that his daughter made a complaint to him and thereafter he went to the matrimonial house of his daughter. According to PW1, his daughter had attended the marriage of his younger son. He has denied the suggestion that he had filed a false and frivolous complaint before the Magistrate or that he had filed a complaint with intention to implicate the entire family of the accused. The witness has also deposed that he had stated about the treatment of his daughter in Saraswati Hospital Gurgaon in his complaint Ex.PW1/DA. He has further deposed that the confession of accused was recorded in his presence but his signatures were not obtained on the confession. According to the witness, the confessional statement was made by the accused at the spot. He has also deposed that he reached the spot at about 1.20 AM and remained there till 4 AM and he had not seen the accused at the spot after 2.20 AM. He has also stated that accused was not beaten by the police in his presence. According to him, about 40­50 persons were standing on the road and in his presence Investigating Officer had not requested any of those persons to join the investigation nor he joined any independent St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 14 witness. He has further deposed that a photographer was present at the spot when he reached there but he is unable to tell if the photograph of accused was also taken and states that photographs of the spot were taken. He is unable to tell if the photograph of shirt Ex.P­5 was taken by the police or the time when the shirt was taken into possession but states that the shirt was taken into possession at the spot. He has also deposed that family members of accused were present at the spot and wife of the accused, his brother and his brother in law were there at the spot. According to him, he had only found one button of the shirt lying on the ground which he handed over to the police and he observed in the court that two buttons of the shirt were broken. The witness has admitted that the pocket of the shirt was torn but has denied the suggestion that the shirt Ex.P­5 did not belong to accused. He has deposed that the other shirt was brought by the wife of the accused and the photograph of the shirt which was brought by the wife of the accused was not taken. According to PW1, he had to climb on the fifth floor of the building and he himself, his son, accused and police personnels had gone to the fifth floor. He has testified that no other public person was there with them and in his presence Investigating Officer had not asked any other public person to join the investigation as none was present on fourth floor except his family members and family members of the accused. He has further deposed that the ornaments were produced by the accused from the broken pot St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 15 which was lying under the heap of garbage. According to PW1, the Investigating Officer had not taken the broken pot into possession and he does not remember if the investigating officer had prepared the seizure memo on fifth floor. He has denied the suggestion that no recovery was effected at the instance of accused or that no documents were prepared at the spot. He has further deposed that there was no light on the fifth floor but reflection was coming from the nearby buildings. He has denied the suggestion that nothing was visible on the fifth floor but states that there was no independent light on the fifth floor. He has admitted that photograph Ex.PW1/DB was of the window of the room in which the murder was committed and that the mesh of the window was removed from one corner. He has also admitted that latch at point A on Ex.PW1/DB appears to be open and that window was of big size and one man can easily pass through it. The witness has denied the suggestion that one robber entered the house after cutting the mesh and opening the window and murdered 'A' or that the robber had entered the house with the intention of robbery or that the said robber collected the ornaments or that when the said robber heard foot steps he ran away from the spot or that before fleeing the robber murdered his daughter in order to evade his identification. He is unable to tell if the police had lifted any chance prints from the spot. He has admitted that one screw driver was also recovered but he is unable to tell if any fingerprints were taken from St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 16 screw driver. He is unable to tell whether any finger prints were lifted from the spot or whether the police lifted any foot prints from the spot. According to him, he had asked the police to lift finger prints and foot prints and they told him not to tell them how to do their job. He has stated four­five ligature marks were there on the neck of his daughter, one mark was below her eye but he is unable to tell whether it was below left eye or right eye. He has further deposed that there was one injury on her forehead and her nostril was full of blood and there was blood on her hair. According to him, SDM was not called at the spot by the police. He has deposed that he had not given in writing to the police to call the SDM at the spot and the police told him that it was a case of theft so there was no need for calling the SDM. The witness has also deposed that bed sheet was not taken into possession in his presence and the clothes of his daughter were not taken into possession. He has admitted that there were no blood stains on the bed sheet and on the clothes of his daughter but states that they all were changed. He has denied the suggestion that no recovery was effected in his presence or that he was having strained relations with the accused and his father so he had got them falsely implicated or that he had filed false complaints against the other family members of the accused.

PW2 Gopesh Kumar is the brother of the deceased who has deposed that on 19.11.2000 his sister 'A' was married with Anshu St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 17 S/o Sh. Mange Ram Rastogi according to Hindu Rites and customs and the accused Aman Kumar Rastogi was the brother in law (Jeth) of his sister. He has testified that in the intervening night of 25/26.06.04 he was sleeping in his house when at about 11.30/11.40 PM his father woke him up and told him that his sister had expired as he received a call from Aman Kumar and Aman also told him that blood was oozing from the mouth and nose of his sister and she was having stomach pain. The witness has also deposed that he along with his father went to Shalimar Bagh in a taxi and he noticed that 30/40 public persons were standing near the main gate of the society. According to him, some persons were also standing on the staircase leading to the house of the accused and his brother in law/ Jija Anshu was standing in the stairs. He has deposed that he along with his father went upstairs and police persons were present on the fifth floor and stopped him and his father and they not allowed them to enter the room in which the dead body of his sister was lying. The witness has deposed that he told the police persons that he was the brother of deceased and the person accompanying him was father of deceased after which the police officers allowed them to go inside the room but they instructed him and his father not to touch anything. He has testified that the accused Aman and his wife were inside the room in which the dead body was lying and he noticed that the head of his sister was entirely not resting on the bed and mouth and nose of his sister were full of blood and St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 18 blood was also on her face and there were four to five ligature marks on the neck. He has further deposed that there was no blood on the floor and the bed sheet. According to him, police made inquiries from Aman and the accused disclosed that he had committed the murder of his sister. He has testified that there was a cut mark on the finger and there were nail scratch marks on chest of accused. The witness has further deposed that there was no jewellery on the body of his sister except one ear ring and one blood stained helmet and lock were lying on the bed and one bunch of keys was lying on the ground and other was lying on the bed. According to him, lock and helmet were taken into possession and converted into pullanda and seized vide memo Ex.PW1/A; two bunch of keys and one lock were taken into possession, converted into pullanda and seized vide memo Ex.PW1/D; one shirt button lying there was also taken into possession vide memo Ex.PW1/B; one teeth was also taken into possession vide seizure memo Ex.PW1/C. According to him, the accused disclosed that he could get recovered the jewellery and thereafter the accused took them and police officials to the roof of fifth floor where he got recovered four gold bangles, one gold chain, one ear ring, one screw diver from a flower pot and the same were kept in a pullanda and sealed and same were taken into possession vide memo Ex.PW1/F. The witness has further deposed that the IO called photographer of the St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 19 Crime Team and dog squad and the photographer had taken the photographs and Crime Team also inspected the spot and his statement was recorded by the police. The witness has deposed that his sister was harassed and tortured by her husband Anshu, accused Aman and wife of Aman namely Meenu, Mange Ram father in law of his sister and his wife Saroj for demand of dowry. He has further deposed that one month prior to the murder of his sister, she had fallen ill and father of accused made a call to his father and asked him to take his sister back on which his father took his sister and got her admitted in Saraswati Hospital Gurgaon where she remained admitted for about two to three days and returned to her matrimonial home after eight days. He has correctly identified the accused Aman Kumar Rastogi in the court and the case property i.e. the helmet which is Ex.P1, lock with Mark WASI NO:2500 8 livers which is Ex.P­2, button which is Ex.P­3, tooth which is Ex.P­4, shirt which is Ex.P­5, shirt and salwar which are Ex.P6/1 and 2, pant which is Ex.P­7, bunch of three keys which is Ex.P­8, lock which is Ex.P­9, bunch of two keys which is Ex.P­10, one toy which is Ex.P­11, chappal which is Ex.P­12; ear ring which is Ex.P­13; four gold karas which are collectively Ex.P­14, one gold chain which is Ex.P­15; one ear ring which is Ex.P­16 and a screw driver which is Ex.P­16.

St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 20

In his cross­examination, the witness has deposed that he was a permanent resident of Gurgaon and at the time of incident he used to work at Gurgaon. According to him, he had not stated to the police in his statement that his father woke him up and told him that blood was oozing from the nose and mouth of his sister and she was having stomach pain after which he along with his father reached the house of his sister at about 1.20 a.m. He has deposed that the had not stated in his statement to the police that police had stopped him and his father from entering the room in which dead body of his sister was lying but he has stated to the police in his statement that there was no blood on the floor and bed sheet. He has denied the suggestion that there was no fifth floor. According to him, photographs were being taken by the police but he is unable to tell whether they had taken the photographs of the ligature marks on the neck of his sister. He has further deposed that in his presence, finger prints were not lifted by the police. He is also unable to tell whether the ligature marks were inflicted by an unidentified assailant. The witness has admitted that when he reached the spot he saw the mesh of the window broken and he had not noticed whether the window was half closed or not. He has also admitted that as per photograph Ex.PW1/DB the window was slightly open and that the window is quite big but he is unable to tell whether a man can easily pass through the said window. PW2 has further admitted that the window was of the same room where the St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 21 dead body was lying and that the latch of the window could be opened from the broken mesh. The witness has denied the suggestion that some unidentified assailant entered the room by breaking open the window with the intention to commit robbery. He is unable to tell whether the said assailant collected the jewellery or if 'A' resisted the robbery attempt. He has denied the suggestion that in the process the unidentified assailant killed 'A' in order to hide his identity. According to him, finger prints expert had come at the spot and police men were there who were looking for the finger prints. He is not aware if foot prints were lifted from the spot but states that he had not asked the police to lift the finger prints and foot prints. The witness has denied the suggestion that police had not lifted the finger prints and foot prints from the spot as they wanted to implicate the accused in this case in connivance with him and his father. According to PW2, he had seen injuries on the body of accused i.e. bite mark on his finger and a scratch mark on right side of his chest but in his presence police had not taken the photographs of those injuries. He has denied the suggestion that the accused was not having any injuries or that he received the above said injuries during police torture. The witness has also denied the suggestion that the police had not taken the photographs of the body of the accused as at that time there were no injuries on his person. According to him, in his presence disclosure of accused was recorded but he is unable to tell the time but it was St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 22 recorded at the spot. He has further deposed that no independent witness was joined at the time of recording disclosure statement of accused and he is unable to tell if the Investigating Officer had requested the public persons to join the investigation. He has denied the suggestion that the disclosure statement of the accused was not recorded at the spot or that it was recorded in the police station after torturing the accused or that accused had not given any disclosure statement or that his signatures were obtained on blank papers or that the disclosure statement of the accused was recorded by the police in collusion with him. He has also denied the suggestion that both the ear rings were removed by the police from the dead body. According to him, they had gone on the roof during night but light reflection was there and there was visibility. He has further deposed that there was no light of its own on the roof and there were flower pots on the roof but he had not noticed the TV antenna on the roof nor he noticed any water tanks on the roof. The witness has denied the suggestion that he had not noticed the antenna as he had not gone to the spot. According to PW2, flower pot was made of mud and there was a box in the flower pot. He has deposed that the flower pot was not taken into possession by the police and the box was also not taken into possession by the police. According to the witness, they had not suggested the police to take flower pot and box into possession as they were disturbed. He has denied the suggestion that no jewellery or St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 23 screw driver were recovered from the spot and the box on the roof. He has denied the suggestion that the entire jewellery was lying scattered in the room or that the same was not got recovered by the accused. He is not aware if the police had prepared the recovery memo of the jewellery but has denied the suggestion that the recovery memo was prepared by the police in the police station. PW2 has also denied the suggestion that shirt Ex.P5 was not taken off from the body of the accused or that he was not wearing the same. He is unable to tell if police had taken the photograph of the accused in the shirt Ex.P5 and the shirt of the accused was taken off by the police outside the room. He has further deposed that the photograph of the shirt which was given to the accused for wearing was not taken. He has denied the suggestion that no shirt was given to the accused for wearing or that neither the shirt belongs to Aman Kumar not he was wearing the same. The witness has admitted that button like Ex.P3 were easily available in the market and that the pocket of the shirt Ex.P5 was torn and it was hanging from the shirt. PW2 has also deposed that his statement was recorded once by the police and he had not stated to the police in his statement that accused used to demand dowry from his sister. He has testified that the demand of dowry was made from his sister by the accused and his family three four months prior to the death and same continued till her death but his sister had St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 24 not written any letter to him regarding the demand made by the accused and his family members. He has denied the suggestion that the story regarding demand of dowry was concocted and false.

PW4 Sh. Rajiv Rastogi is the cousin brother of the accused who has deposed that in the intervening night of 25/26.06.04 he was present in his house bearing No. DH714A, Shalimar Bagh, Delhi and at about 11.30/12:00 night he received a call from Aman Rastogi, his cousin who him informed that the condition of 'A' was very serious and he called him to his house i.e. CC 4D, Shalimar Bagh. According to the witness, when he reached there and saw that dead body of 'A' was lying on the bed and there was blood on her mouth and he informed his younger brother Pradeep who also came there. The witness has further deposed that he asked Aman about the death of 'A' who told him that his parents had gone out. According to him, his brother then took his mobile and informed the PCR police at No. 100 and his statement was recorded by the police.

In his cross­examination, the witness has deposed that he reached the house of accused within five minutes of receiving the information and he remained at the spot till the time police remained there. According to the witness, jewellery was recovered from the terrace of the house and the police had also come with dog squad. He has further deposed that he had gone to the terrace of the house and dog squad had gone to the terrace but he is unable to tell whether the St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 25 jewellery was recovered at the instance of dog squad. He does not remember what clothes the accused was wearing at that time. Medical evidence:

PW3 Dr. Sanjay Kumar has proved the ME No. E/42446 of patient Aman Kumar S/o Sh. Mange Lal aged 31 years male who was brought to the hospital by Constable Surinder No. 1948 NW of police station Shalimar Bagh on 26.06.04 at 7:30 a.m. for medical examination. According to him, the patient was examined by Dr. Nirupma who was working as Junior resident in BJRM hospital and had since left the services of hospital and her present whereabouts were not known. The witness has deposed that he is conversant with the handwriting and signatures of Dr. Nirupma as he had seen her writing and signing in official capacity while she was working with him in the hospital. According to the witness, as per the said ME which is Ex.PW3/A at the time when the patient was brought to the hospital for medical examination, he was conscious and oriented, vital were stable and the local examination revealed following injuries:­

1. Bruises over right side of upper chest and scratch marks

2. Bite marks on the left middle finger.

He has deposed that the said injuries were opined as simple and the patient was declared fit for statement.

St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 26

During his cross­examination, the witness has deposed that he had not examined the patient. According to him, the address of Dr. Nirrupama might be available in the hospital record and he had come to depose on the instructions of Medical Superintendent. He has deposed that he had done medico legal course and has admitted that when a patient comes they inquire history from the patient and the alleged history was not mentioned in the ME. He has denied the suggestion that injuries were received by accused in police custody when he was being tortured or that Dr. Nirupma had not recorded the history of accused Aman Kumar as she was under the pressure of police. According to the witness, these injuries could be received by beating and scratches but he is unable to tell whether they were the result of police torture and bite marks were visible on the body. He has deposed that he had no personal knowledge of the case.

PW7 Dr. M. Dass has deposed that on 23.08.04 he was posted as CMO, Central Jail, Tihar Hospital and on that day an application was moved by Inspector K.C. Negi for obtaining the blood sample of Aman Kumar Rastogi an under trial prisoner lodged in jail in case FIR No. 544/04 u/s 302/394/376/511 IPC police station Shalimar Bagh and on the basis of the said application, he collected blood sample of accused in two vial viz one 5 ml and another two drops for dry up. The witness has further deposed that after sealing them in an envelope with the seal of Central Jail, he handed them over St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 27 to Inspector K.C. Negi vide handing/taking over memo Ex.PW7/A. According to the witness, he had also obtained LTI and signature of under trial prisoner at point B and C respectively as a mark of his identification. This witness was also not cross­examined by counsel for the accused.

PW12 Dr. Anil Shandilya has deposed that on 27.06.2004 he was posted as Senior Resident, in BJRM Hospital and had conducted postmortem examination on the body of 'A' aged about 29 years brought by Inspector K.C. Negi identified by Ct. Suresh of Police Station Shalimar Bagh, Delhi. According to him, as per brief facts dead body was removed from open door room lying over double bed, face upward with sign of struggle and missing of golden items; married 4 years back, inquest papers furnished under Section 174 Cr.P.C. and no information to SDM concerned. According to him, reasons were not explained in the inquest papers and on asking, the Investigating Officer informed that it was not necessary because of nature of the case where burglary took place. He has also deposed that the inquest paper, FIR No.542 dated 25.06.2004 made under section 279/337 IPC submitted and the Page No.3 of inquest paper duly attested by him. He has testified that on the deceased was wearing Salwar suit, Shameej, Bra, underwear, chunni and no tear/ rent. He has further testified that the height was 5'3", well built nourished, rigor mortis present all over the body, postmortem staining present over St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 28 back except at pressure points; eyes were semi open, conjunctivae congested, cornea dry and haising, mouth semi open, tongue peeping in between interior set of tooth, both lips and all nails blueish.

The witness has further deposed that on examination there were following external injuries:

1. Oval shaped human teeth bite mark present over left side cheek with mark of indentation, with dried blood, reddish in colour.

2. Right lower first incisor teeth found missing from the socket and buckle cavity. On inspection socket found fractured with local collection of Haematoma and mark of contusion and indentation at the mucosan aspect of lower lip correspondingly reddish in colour.

3. Multiple reddish bruise of irregular shape bearing in size from size 2cm x 3cm to 2cm x 4cm present over outer aspect of both arms, shoulder, fore­arm and at upper chest. On incision underneath tissue found contused with effusion of reddish blood.

4. Neck: Tipicla abraded bruise consistent with manual strangulation present over front of upper 1/3rd of neck with underline tissue found contused, Haematoma extends upto tracheal rings.

Tracheal Mucoza congested with rusty coloured fine froth. Three consecutively placed horizontal ligature mark of size 17cm x 1cm present over front and both lateral aspect of lower to middle third part of neck. On dissection underneath tissue found contused with St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 29 contusion of blood.

5. Head: Brain matter congested and edematous.

6. Chest: Bilateral lungs congested and edematous.

7. Abdomen and pelvis: All abdominal viscera congested. Multiple intestinal loops contused. Stomach containing semi digested unidentifiable food. Mucosa healthy.

The witness has proved that the cause of death was Asphyxia resulting from cumulative effect of ligature and manual strangulation and it was a homicidal death. He has deposed that all injuries were anti mortem in nature and fresh prior to death in duration caused by hard blunt force. He has testified that the injury No.1 was human teeth bite and time since death was approximately about 36 hours prior to postmortem examination. The witness has also deposed that blood sample in gauze piece and viscera for chemical analysis, vaginal swab for spermatozoa and serology and clothes. According to him, total number of 8 inquest papers and postmortem report were handed over to concerned police officer. He has proved the detailed postmortem report which is Ex.PW12/A. In his cross­examination this witness admitted that postmortem report did not bear his signature and states that he inadvertently forgot to sign the same.

St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 30 Police/ official witnesses :

PW5 Const. Chunni Lal has deposed that on 26.06.04 he was posted as Photographer in Mobile Crime Team, Outer District and on that day after receiving the information, he along with other Mobile Team Staff reached at the spot i.e. H. No. 40, fourth floor, CC Block, Shalimar Bagh where at the instance of Investigating Officer he took photographs of the scene of crime negatives of which are Ex.PW5/A­1 to Ex.PW5/A­10 and the photographs are Ex.PW5/B­1 to B­10. This witness was not cross­examined by counsel for the accused.

PW6 HC Mahesh Kumar has deposed that on 30.06.04 he was posted as Constable at police station Shalimar Bagh and on that day Investigating Officer had sent him to bring the postmortem report and viscera petti from BJRM Mortuary. He has testified that accordingly he brought one wooden box sealed with the seal of BJRM containing viscera of deceased and pullanda sealed with the seal of BJRM containing cloths of the deceased, one plastic bottle sealed with the seal of BJRM, vaginal swab, one pullanda containing blood sample of deceased and two sample seal which he handed over to the Investigating Officer which were seized vide memo Ex.PW6/A. He has not been cross­examined by the Ld. Counsels. St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 31

PW8 ASI Sanaru Ram has deposed that in the intervening night of 25/26.06.04 he was posted in Police Control Room as Channel Operator on Channel no. 101 and on that day at around 00:55 hours he received information from phone No. 9818015441 that one lady had been expired at CC­4D Shalimar Bagh, DDA flats, Opposite NDPL Colony. He has further deposed that he filled the PCR form and forwarded it to the communication net ahead for further onward transmission.

The witness had not brought the original PCR form but Ld. Counsel for the accused Sh. P.R. Aggarwal had no objection if qua this witness the photocopy of the PCR form as was already available on the judicial record was considered and got exhibited. It was directed by the court that witness be examined on the basis of the photocopy of the PCR form already available on the judicial record which is Ex.PW8/A. In his cross­examination this witness has deposed that he received the information while sitting in the police headquarters.

PW9 HC Vijay Kumar has deposed that on 26.06.04 he was posted as MHC(M) in police station Shalimar Bagh and on that day Investigating Officer Inspector K.C. Negi deposited (1) one sealed pullanda sealed with the seal of KCN alleged to be containing one pant and one underwear; (2) one pullanda sealed with the seal of KCN alleged to be containing one shirt; (3) one pullanda sealed with the seal St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 32 of KCN containing button; (4) two pullandas sealed with the seal of KCN containing lock and helmet; (5) one pullanda sealed with the seal of KCN containing tooth; (6) one pullanda sealed with the seal of KCN alleged to be containing four golden bangles, one golden chain and one screw driver; (7) one polythene alleged to be containing three keys, one lock, one key ring containing two keys, one small doll, one lady chappal and (8) one pullanda sealed with the seal of KCN alleged to be containing one ear ring. According to him, he made an entry in this regard in register No. 19 at Sr. No. 2603. He has testified that on 30.06.04 Investigating Officer Inspector K.C. Negi had deposited one box sealed with the seal of BJRM containing viscera of the deceased, one pullanda sealed with the seal of BJRM containing clothes of the deceased, one pullanda containing vaginal swab of deceased, one pullanda containing blood sample of the deceased and two sample seals of Superintendent, BJRM and he made entry in this regard at S. No. 2610 of register No.19. The witness has testified that on 23.08.04 the Investigating Officer Inspector K.C. Negi had handed over blood sample of accused which was taken as per the order of Sh. S.K. Aggarwal Ld. MM and entry in that regard was made at S. No. 2738 of register No. 19. He has also deposed that on 24.08.04 on the instructions of Investigating Officer, nine pullandas along with FSL form were handed over to Const. Kulwant for depositing the same in FSL vide RC No. 130/21/04 but the same could not be deposited on St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 33 that day and the same were deposited in the Malkhana and thereafter on 25.08.04, the pullandas were again handed over to Const. Kulwant for depositing in FSL vide RC No. 132/21/04 and thereafter, he deposited the receipt with him. According to him, on 04.01.05, the pullandas along with FSL result were deposited in Malkhana by Const.

Dharmender. He has proved that the sealed pullandas remained intact during his custody and he did not interfere with them nor he allowed anyone to interfere with them. The witness has placed on record the copy of Register No.19 showing the relevant entries which are collectively Ex.PW9/A and the copy of Register No.21 which is collectively Ex.PW9/B. This witness was not cross­examined by counsel for the accused.

PW10 Sh. V. Shankaranarayanan, Senior Scientific Officer (Bio), FSL Rohini has deposed that on 24.08.04, eleven sealed parcels were received in the office of FSL in connection with present case and he opened the above said parcels and examined the exhibits biologically. According to him on biological examination blood was detected on exhibits 3 (blood stained gauze cloth), 4a (Lady's shirt), 4c (Brassier), 4d (Shameez), 5 (Lock), 6 (Helmet), 8 (Tooth) , 9 (Shirt), 13a (Blood sample) and 13b (Blood sample) but blood could not be detected on exhibits 4b (Salwar), 4e (underwear), 7 (button), 10A (pants) and 10B (underwear) and semen could not be detected on exhibit 2 (vaginal swab). He has proved his detailed biological report St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 34 running into three pages which is Ex.PW10/A. PW10 has also deposed that the the above said exhibits were also examined serologically and on serological examination, exhibits 3, 4a, 4c, 4d and 9 showed reaction for human blood ground "A" whereas exhibits 5, 6 and 8 showed reaction for human origin of blood only and exhibits 13a and 13b showed no reaction for human original of blood. He has also proved the detailed serological report which is Ex.PW10/B. This witness was not cross­examined by counsel for the accused.

PW11 Sh. Parshuram Singh, Senior Scientific Officer (Physics) has deposed that on 15.10.04 two sealed parcels marked as 7 and 9 were received in Physics Division from Biology Division of the laboratory. He has further deposed that on opening parcel No.7 one light brown colour button kept in a match box was found and in parcel No. 9 one light brown colour full sleeves shirt was found having five buttons intact on front side and two button intact on the two sleeves were found. According to him, the buttons on front side were marked as B1 to B5 and the buttons on sleeves were marked as B6 and B7 and the two buttons on front were found missing which were marked as X1 and X2. He has testified that on examination and subsequent comparison of the buttons B1 to B7 on shirt Ex. 9 and button Ex.7 it was found that they were similar in respect of colour, texture, design, number of holes, diameter of holes, thickness and the distance St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 35 between the holes and after examination exhibits were sealed with the seal of PS FSL, Delhi. He has proved his detailed report which is Ex.PW11/A. This witness was not cross­examined by counsel for the accused.

PW13 HC Prem Singh has deposed that on 26.06.04 he was posted as Duty Officer in police station Shalimar Bagh and at 2:30 a.m. he received rukka which was brought by Const. Suresh which was sent by Inspector K.C. Negi on the basis of which he registered the present FIR No. 544/04 u/s 302/394 IPC copy of which is Ex.PW13/A. He has also proved having made his endorsement on the rukka which is Ex.PW13/B. He has not been cross­examined by the Ld. Defence Counsel.

PW14 SI Manohar Lal has deposed that on 30.06.04 he was posted as Draftsman to North West District and on that day he was called by Inspector K.C. Negi at police station Shalimar Bagh from where he along with SI Ramesh Dutt reached at the spot i.e. flat No. D­4, CC Block, Shalimar Bagh where on the pointing out of SI Ramesh he took rough notes and measurements for preparing the site plan. According to him, thereafter on 01.07.04 on the basis of these rough notes and measurements he prepared the scaled site plan which is Ex.PW14/A after which he destroyed the rough notes. St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 36

During his cross­examination this witness has deposed that he had mentioned the notes on the pointing out of SI Ramesh and he had not shown any dibba/ gamla in the scaled site plan. He does not remember whether SI Ramesh had asked him to show any dibba/ gamla in the site plan. According to him, he had not visited on the roof of the flat but he had prepared the site plan of the flat. He has testified that SI Ramesh Dutt had not asked him to visit on the roof of the flat.

PW15 Const. Sri Bhagwan has deposed that on 23.07.2004 he was posted as Const. at police station Shalimar Bagh and on that day inspector K.C. Negi handed over to him one letter for collecting the PCR form from PCR Model Town­II. He has further deposed that accordingly, he went there and collected the photocopy of PCR form and handed over the same to Investigating Officer which was seized vide memo Ex.PW15/A which PCR form is Ex.PW8/A. This witness was not cross­examined by counsel for the accused.

PW16 Const. Neeraj has deposed that on the intervening night of 25/26.06.2004 he was posted as Constable at police station Shalimar Bagh and on that day at about 3:30 a.m. duty officer handed over to him three envelopes for delivery to Ld. Metropolitan Magistrate, Joint Commissioner of Police and Deputy Commissioner of Police (HQ). He has testified that accordingly he delivered the same at their residence on his government motorcycle. St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 37

PW17 Const. Kulwant Singh has deposed that on 24.08.2004 he was posted as Constable in Police Station Shalimar Bagh and on that day on the instructions of the Investigating Officer he took eleven sealed pullandas along with the FSL form for depositing the same in the FSL, Rohini. He has testified that he deposited the same in FSL, Rohini and thereafter deposited the receipt with the MHC(M). According to him, further on 25.08.2004 on instructions of the investigating officer, he took one sealed wooden box for depositing in the FSL Rohini and accordingly, he deposited the same and obtained the receipt which he deposited with the MHC(M). He has proved that the sealed pullandas remained intact during his custody. This witness was not cross­examined by the counsel for the accused.

PW18 HC Surender has deposed that on 26.06.2004 he was posted as Constable in police station Shalimar Bagh and on that day on receiving the call of murder he reached at CC Block, Shalimar Bagh. He has further deposed that at about 7:20 a.m. Investigating Officer Insp. K.C. Negi handed over to him accused Aman Kumar Rastogi for medical examination and he took him to BJRM hospital where the accused was medically examined and after his medical examination he handed over the accused and his ME to Investigating Officer.

St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 38

During his cross­examination this witness has deposed that he reached at CC Block at about 3:00 AM and remained there at about 7 to 7­15 AM. According to him, except for the proceedings which he had mentioned in his examination in chief, no other proceedings were got conducted in his presence.

PW19 SI Ramesh Dutt Sharma has deposed that on 25.06.2004 he was posted as sub Inspector in police station Shalimar Bagh and on that day he was on night emergency duty and at about 1:10 AM he received DD No.4­A copy of which is Ex.PW19/A after which he along with Const. Suresh reached at the spot i.e. H. No. 4D, CC Block, Shalimar Bagh where dead body of one lady was lying in the room on the unauthorized portion of house No. 4D, CC Block. The witness has also deposed that the dead body was identified by Mahender Muni as that of his daughter 'A' . According to him, the head of the dead body was towards South side and feet were towards the North side and the head of the dead body was outside and double bed on which the dead body was lying. He has also deposed that there were strangulation mark on her neck and blood was oozing out from the mouth and one chappal was lying near the bed towards the left feet. He has further deposed that one key ring containing three keys, two locks and one helmet were also lying and also one key ring containing two keys and one small doll were also lying at the spot. In the meantime, Insp. K.C. Negi came there and he inspected the spot St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 39 and the jaali of the window of the room was found removed. He has further deposed that on inquiry Mahender Muni informed that 'A' was having four golden bangles, one gold chain and left ear ring of gold which she was wearing were missing and on the inspection of the spot it appeared that deceased had struggled before her death. The witness has also deposed investigating Officer Insp. K.C. Negi prepared the rukka and handed over to Const. Suresh for getting the FIR registered. He has testified that the Investigating Officer prepared the site plan and the Crime Team was called who inspected the spot and took the photographs. PW19 has also deposed that Dog Squad was also called and they also inspected the spot and in the meantime Const. Suresh came back at the spot and handed over to Investigating Officer the copy of the FIR and original rukka. According to the witness, Crime Team Incharge also handed over his report to the Investigating Officer. He has testified that Investigating Officer lifted helmet, lock which were blood stained and put into different pullandas and sealed with the seal of KCN and seized vide memo Ex.PW1/A. According to him, the Investigating Officer also lifted from the spot one button from the spot and put the same in a match box and converted the same into a pullanda which was sealed with the seal of KCN and seized vide memo Ex.PW1/B; one broken tooth was also lying at the spot and the same was also lifted and put into a plastic bottle and sealed with the St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 40 seal of KCN and seized vide memo Ex.PW1/C. The witness has also deposed that the Investigating Officer lifted from the spot one key ring containing three keys, one lock (Harison), one key ring containing two keys, one small doll, one ladies chappal and the same were seized vide memo Ex.PW1/D. According to him, the father of the deceased suspected on Aman Kumar astogi who was the Jeth of his daughter and the Investigating Officer searched for him and he was found on the main gate of the colony. Thereafter Aman Kumar was interrogated and one button of his shirt was found broken/ removed and the pocket of his shirt was also found half torn and there was cut mark on the middle finger of his left hand and there were nail marks on the right side of his chest. The witness has testified that accused Aman Rastogi was arrested vide memo Ex.PW19/A and his personal search was conducted vide memo Ex.PW19/B after which the accused made a disclosure statement which is Ex.PW19/C. The witness has testified that the shirt of the accused was also put into a pullanda and sealed with the seal of KCN and seized vide memo Ex.PW1/E and the accused was sent for medical examination. According to him, the Investigating Officer had removed one ear ring from the right ear of the dead body and put the same into a pullanda and sealed with the seal of KCN and seized vide memo Ex.PW1/H and the dead body was sent to BJRM Hospital. According to the witness, the accused in his St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 41 disclosure statement had disclosed that he could get recovered four gold bangles, gold chain and one ear ring and screw driver from the wastage on the roof of the room and thereafter, in pursuance of his disclosure statement the accused took them to the roof of the room and took out one screw driver, four gold bangles, one gold chain, one gold ear ring from a dibba in the waste after which the jewellery were put in one pullanda and screw driver was put in another pullanda and sealed with the seal of KCN and seized vide memo Ex.PW1/F. The witness has proved that the investigating officer also seized the pant, underwear of the deceased and put the same in pullanda and sealed with the seal of KCN and seized vide memo Ex.PW19/D and thereafter the accused was sent to lock up and the case property was deposited with the MHC(M). He has also deposed that on 30.06.04 he along with SI Manohar Lal, Draft Man reached at the spot from where he took rough notes and measurement at his instance.

The witness has correctly identified the accused Aman Kumar in the court and the case property i.e. one helmet which is Ex.P1, one lock make Wasi which is Ex.P2, one button which is Ex.P3, broken tooth which is Ex. P­5, one underwear which is Ex.P6, one pant which is Ex.P­7, one key ring containing three keys, one key ring containing two keys, one small doll, one ladies hawai chappal which are Ex.P8 to Ex.P12; one gold ear ring which was removed St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 42 from the dead body which is Ex.P­13, four gold bangles, one gold chain and one gold ear ring which is are Ex.P14, Ex.P15 and Ex.P16 and one screw driver which is Ex.P17.

In his cross­examination by Ld. Defence counsel the witness has deposed that he reached at the spot at about 1:10 AM and there was a huge crowd but he is unable to tell whether Mahender Muni or his son was present there. He has also deposed that the investigating officer called the public one by one and made inquiries from them but the accused Aman was not called as he was not present there. The witness has further deposed that the accused Aman met them at about 4:00 a.m. and the disclosure statement of the accused was recorded by the investigating officer at the spot where he met them at about 4:30 a.m. He has also deposed that when the disclosure statement of the accused was being recorded, apart from himself, the investigating officer, one Const. Suresh and the father of the deceased was also present. He has denied the suggestion that no disclosure was ever made by the accused or that the signatures of the accused were obtained on blank papers and subsequently it was fabricated to falsely implicate the present accused. According to him, no public person present at the spot agreed to give his statement and he did not remember whether signatures of any public witness were taken on the seizure memos Ex.PW1/A, Ex.PW1/B, Ex.PW1/C and Ex.PW1/F. St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 43 He has also denied the suggestion that no public witness signed the documents because no such documents were prepared at the spot or that both the ear rings were taken into possession from the ears of the deceased and neither of the ear rings were recovered from the roof. He does not remember the time when he inspected the roof of the room because they had visited the place two to three times and on first occasion he himself, the investigating officer and Const. Suresh and other family members of the deceased went along with the accused on the roof of the room and on second occasion, investigating officer sent him on the roof of the room for some work. According to the witness, there were no pucca stairs and they had reached at the roof of the house with the help of a stair case make of which he does not remember at this stage. According to PW19, there was no source of light at the roof, however, there were street lights and the investigating officer had also brought his torch at the roof and he is unable to tell the exact source from where the light was coming on the roof but states that there was sufficient street light and the investigating officer was also carrying a torch. He has deposed that the place was the roof of the third floor which had been unauthorizedly constructed and he is unable to tell whether there were flower pots on the roof or not. He has further testified that there were scrap/ unused articles in the form of dibbas lying on the roof and no other articles were seized from the roof except the recovered articles. According to him, the seizure St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 44 memos were prepared in the room where the dead body was lying and he did not notice any water tank or T.V. Antenna on the roof. He has denied the suggestion that he was unable to explain the circumstances since he had not visited the roof or that the jewellery Ex.P­14, Ex.P15, Ex.P16 and the screw driver Ex.P17 were recovered from the room itself and it was subsequently planted upon the accused. The witness has also denied the suggestion that the recovery of jewellery at the instance of the accused was false and fabricated. PW19 does not remember the exact time when the photographer came at the spot and the recovery was not effected till the photographer came at the spot and if the accused was arrested till then or not and no photographs of the accused was taken when he was wearing the clothes which were seized. He has denied the suggestion that no photographs of the accused while wearing the seized shirt was taken as he was not wearing any such shirt or that the shirt was planted upon the accused. the scaled site plan was prepared by the draftsman later on the basis of rough notes and measurement. The witness is also unable to tell whether Crime Team had lifted any chance prints from the spot and he does not remember the time when the accused was sent to the hospital for medical examination. He also does not remember whether accused was sent for medical examination before recovery or thereafter but states that the accused was sent for medical examination in his presence. According to him, no strangulating material was recovered St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 45 from the spot nor does he remember whether recovery had taken place prior to arrival of Dog Squad. He has denied the suggestion that no chance print were lifted because the same would have revealed the identity of the real assailant. He has deposed that the window was wide enough and a person could pass through the same in case if the window was opened. He has also deposed that when they reached at the spot, the window was not locked.

PW20 Inspector K.C. Negi is the Investigating Officer who has deposed that on 26.06.2004 he was posted as Inspector in police station Shalimar Bagh and on that day after receiving the information about the DD No.4­A he along with his driver Const. Sri Bhagwan reached at the spot i.e. H. No.4D, CC Block, Shalimar Bagh where he met SI Ramesh along with Const. Suresh. According to the witness, a dead body of one lady was lying in the room on the unauthorized portion of house No. 4D, CC Block and the dead body was identified by Mahender Muni of his daughter 'A' . According to the witness, the head of the dead body was towards South side and feet were towards the North side and the head of the dead body was outside the double bed on which the dead body was lying. He has also deposed that there were strangulation marks on her neck and blood was oozing out from the mouth, one chappal was lying near the bed towards the left feet; one key ring containing three keys, two locks and one helmet were also lying; one key ring containing two keys and one St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 46 small doll was also lying there and the jali of the window of the room was found removed. He has also deposed that on inquiry Mahender Muni told that 'A' was having four golden bangles, one gold chain and left ear ring of gold which she was wearing were missing and on the inspection of the spot, it appeared that deceased had struggled before her death. He has proved having prepared the rukka which is Ex.PW20/A which he handed over to Const. Suresh for getting the FIR registered. He has also proved having prepared the site plan which is Ex.PW20/B. According to PW20, Crime Team was called who inspected the spot and took the photographs and the Dog Squad was also called and they also inspected the spot. He has testified that Const. Suresh came back at the spot and handed over to him the copy of the FIR and original ruqqa and Crime Team Incharge also handed over his report to him which report is Ex.PW20/C. He has proved having lifted helmet, lock which were blood stained and put into different pullanda and sealed with the seal of KCN and seized vide memo Ex.PW1/A; having lifted from the spot one button and put the same into a pullanda which was sealed with the seal of KCN and seized vide memo Ex.PW1/B; one broken tooth was also lying at the spot and the same was also lifted and put into a plastic bottle and sealed with the seal of KCN and seized vide memo Ex.PW1/C; he also lifted from the spot one key ring containing three keys, one lock St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 47 (Harison), one key ring containing two keys, one small doll, one ladies chappal and the same were seized vide memo Ex.PW1/D. According to the witness, the father of the deceased suspected on Aman Kumar Rastogi who was the Jeth of his daughter and he searched for him and he was found on the main gate of the colony. The witness has also deposed that the accused was interrogated and fourth number button of his shirt was found broken/ removed and the pocket of his shirt was also found half torn and there was cut mark on the middle finger of his left hand and there were nail marks on the right side of his chest. According to him, accused Aman Rastogi was arrested vide memo Ex.PW19/A and his personal search was conducted vide memo Ex.PW19/B and his disclosure statement was recorded which is Ex.PW19/C. He has also deposed that the shirt of the accused was also put into a pullanda and sealed with the seal of KCN and seized vide memo Ex.PW1/E after which the accused was sent for medical examination through Const. Surender. He has testified that he removed one ear ring from the right ear of the dead body and put up the same into a pullanda and sealed with the seal of KCN and seized the same vide memo Ex.PW1/H and the dead body was sent to BJRM hospital. According to him, the accused in his disclosure statement disclosed that he could get recovered four gold bangles, gold chain and one ear ring and screw driver from the wastage on the roof of the St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 48 room and hence, in pursuance of his disclosure statement, the accused took them to the roof of the room and took out one screw driver, four gold bangles, one gold chain, one gold ear ring from a dibba in the waste and the jewellery were put in one pullanda and screw driver was put in another pullanda and sealed with the seal of KCN and seized vide memo Ex.PW1/F. The witness has also proved having seized the pant, underwear of the deceased and put the same in pullanda and sealed with the seal of KCN and seized vide memo Ex.PW19/D and thereafter the accused was sent to lock up and the case property was deposited with the MHC(M). PW20 has also proved having prepared the inquest papers and the death report which is Ex.PW20/D; Brief Facts which are Ex.PW20/E and the request for autopsy opinion is Ex.PW20/G. He has further deposed that on 27.06.2004 the dead body was identified by Mahender Muni and Bhupesh Kumar vide their statements Ex.PW11/G and Ex.PW20/H and the postmortem examination was got conducted after which the dead body was handed over to her relatives vide receipt Ex.PW1/A. He has also deposed that on 30.06.2004 Const. Mahesh had collected the viscera, clothes, vaginal swab, blood samples of the deceased along with the sample seal from the hospital which he seized vide memo Ex.PW6/A which he deposited with the MHC(M) and on the same day SI Ramesh along with SI Manohar Lal, Drafts Man visited the spot and there SI St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 49 Manohar Lal took rough notes and measurement for preparing the scaled site plan. He has proved that later on he collected the scaled site plan and also collected the postmortem report of the deceased. According to PW20, on 23.07.2004 he went to the PHQ and recorded the statement of ASI Sunaru Ram and thereafter he came back to the police station and sent a request letter copy of which is Mark A to Incharge Record room, PCR through Const. Sri Bhagwan for collecting the PCR form and thereafter Ct. Sri Bhagwan collected the same and handed over him which he seized vide memo Ex.PW15/A. The witness has proved that on 06.08.2004 he recorded the statement of Pradeep Kumar and Rajiv Rastogi and on 23.08.2004 he went to Tihar Jail and as per the order of Ld. M.M. he collected the blood sample of the accused Aman Kumar Rastogi through Dr. M. Das of jail No.3. He has further deposed that on 24.08.2004 exhibits of this case were sent to FSL through Const. Kulwant and thereafter he deposited the receipt with the MHC(M). According to him, on 25.08.2004 on his instructions Const. Kulwant again took the viscera to FSL Rohini and after depositing the same he deposited the receipt with the MHC(M). The witness has proved that after completing the investigations, he prepared the challan and filed the same in the court through the SHO.

The witness has correctly identified the accused Aman Kumar in the court and the case property i.e. one helmet which is St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 50 Ex.P1, one lock make Wasi which is Ex.P2, one button which is Ex.P3, broken tooth which is Ex. P­5, one underwear which is Ex.P6, one pant which is Ex.P­7, one key ring containing three keys, one key ring containing two keys, one small doll, one ladies hawai chappal which are Ex.P8 to Ex.P12; one gold ear ring which was removed from the dead body which is Ex.P­13, four gold bangles, one gold chain and one gold ear ring which is are Ex.P14, Ex.P15 and Ex.P16 and one screw driver which is Ex.P17.

In his cross­examination by Ld. Defence Counsel, the witness has deposed that he reached the spot at about 1:10 to 1:15 am. where a huge crowd was present down stairs but on the spot only SI Ramesh Dutt, Ct. Suresh and father of the deceased Mahender Muni were present. According to him, he sent the tehrir under Section 302/394 IPC at about 2:20 AM. He has also deposed that the recovery of jewellary etc. were made at about 8:30 AM from the roof and the disclosure statement of the accused was recorded at about 8 am in the room where the incident had taken place. He has also deposed that when the disclosure statement of the accused was recorded only SI Ramesh Dutt was present there and the medical of the accused was got conducted prior to recording of his disclosure statement. According to the witness, he sent the accused for medical examination at about 7:20 am and the accused was arrested at about 7 am. He has testified that St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 51 he sent the dead body for postmortem at about 7:30 am through Ct. Suresh. He has denied the suggestion that accused had not made any disclosure statement and his signatures were taken on blank papers and the same was fabricated to falsely implicate the present accused. The witness has further testified that he inquired from the maximum number of persons to join the investigation but they all declined, but he did not record their particulars. He has denied the suggestion that both the ear­rings were taken into possession from the ears of the deceased and nothing was recovered at the instance of the accused. According to PW20, they used an iron staircase to approach towards the roof and it was the roof of the fifth floor. According to him, it was bright day light when they went on roof and there were no flower pots or dustbins on the roof and only scraps which were lying there but states that only one carton box was lying on the roof in which box the jewelry was lying. The witness has deposed that he did not take into possession the carton box and has denied the suggestion that there was no carton box on the roof due to which reason the same was not taken into possession or that no jewelry, ear­rings, screwdriver, etc. were recovered on the roof. According to him, there was no water tank or TV Antenna on the roof. He has denied the suggestion that Ex.P14, P15, P16 and P17 were all lifted from the room and the same were planted on the accused or that any unidentified assailants had committed the offence to whom he had failed to apprehend. The St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 52 witness has testified that the photographer and the Crime Team had reached at about 2:25 AM to 2:30 AM and stayed at the spot till 4:15 AM. He has also deposed that he had first seen the accused at 6:30 AM in the crowed at the ground near the gate and that the father of the deceased told him that he had suspicion on present accused at about 6:00 AM to 6:15 AM but he did not take any photograph of the accused wearing the shirt Ex.P5. He has denied the suggestion that buttons Ex.P4 were easily available in the market or that no independent public witnesses joined because no such incident had taken place. According to him, no photographs of the scraps material lying on the roof was taken as the photographer had already left (prior to the recovery). He has testified that the Crime Team had not taken any chance print from anywhere and he is not aware whether the Draftsman had prepared the site plan from where the recovery had taken place because the Draftsman was accompanied by SI Ramesh Dutt. He has also denied the suggestion that no chance prints were taken because the same would have revealed the identity of the real assailant. According to PW20, there was no strangulation material recovered from the spot and only the clothes of the deceased were lying there. The witness has testified that the Dog Squad had come along with the Crime Team and they left along with them. He has also deposed that the father of the deceased had not insisted upon him for recording of his statement before the SDM. According to him, PW1 St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 53 Mahender Muni had also not complained of any dowry demands, etc. from the side of accused at that time. The witness has further deposed that the broken tooth was sent to FSL for examination and he is not aware as to what was the report in this regard. He is unable to tell whether there was any nail marks and cut marks on the body of the accused were inflicted by the deceased. According to him, he added Sections 376/511 IPC after receiving the postmortem report and due consultation with the doctor on 27.6.2004 but he is not aware about the result of FSL report regarding vaginal swab. He has denied the suggestion that he had falsely implicated the present accused in connivance with father of the deceased or that he had wrongly added Section 376/511 IPC and there was no evidence thereof in this regard. Statement of the accused/ defence evidence:

After completion of prosecution evidence the statement of the accused was recorded under Section 313 Cr.P.C. wherein all incriminating evidence was put to the accused Aman Kumar Rastogi which he has denied. He has stated that he has been falsely implicated in the present case at the instance of the father of deceased because he was always in favour of joint family which was resisted by the deceased and her father who was inimical to him. According to him, the Investigating Officer was unable to arrest the unidentified assailant who had entered in the house for committing the robbery through St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 54 window and it was the unidentified assailant who had killed his younger brother's wife because she was the only person who could have identified the real culprit. He has denied having made any disclosure statement and states that the police had taken his signatures on several papers and the injuries were inflicted by the police when he was resisting his arrest in Police Station. The accused has examined his wife Smt. Meenu Rastogi in his defence.

DW1 Smt. Meenu Rastogi has deposed that on 25.06.2004 she was at his fathers place at Seelam Pur, Delhi and at about 11 pm she received a phone call from her husband who informed her that some one had murdered 'A' . She has deposed that she immediately rushed to her home with her brother where she reached at about 11.45 pm. and saw that deceased 'A' was lying on the bed and blood was oozing from her fore head. According to her, whole room was ransacked and jewellery was also lying there and after some time police had come. The witness has further deposed that there was cemented stair case to reached on the roof and only water tank was lying on the roof. She has deposed that she remained on the spot till 2:00 am and neither any police person nor her husband went on the roof in her presence and there was no arrangement of light on the roof.

According to the witness, after 2:00 am she and her husband was taken to Police Station Shalimar Bagh where she and her husband were detained in separate rooms and she heard the screaming voice of her St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 55 husband many times. The witness has also deposed that her husband was wearing a dark blue shirt and no dress of her husband was changed in her presence.

In her cross­examined by the Ld. Addl. PP and and Ms. Sobha Gupta, counsel for the complainant, she has deposed that she had been married with the accused in the year 1998 and her father was a residence of Delhi at Seelam Pur. According to the witness, her marriage was an arranged marriage. She has admitted that on the day of the incident she was not present and whatever she was deposing was on the basis of what was told to her by her husband. She has deposed that she had gone to her father's house about six to seven days prior to the incident because her elder daughter who was six years at that time was suffering from Jaundice unwell and she used to go for her work and there was none to take care of her. The witness is unable to produce any medical certificate of the child to show that she was suffering from Jaundice. According to DW1, her husband's family comprised her mother in law, father in law, herself, and two daughters and her Devar, his wife and one daughter. She has further testified that at the time of the incident she was employed in the office of the LIC, Model Town Branch. She has deposed that it was not that her parents in laws and other members of her family did not take care of her daughter that she had to go to her father's house along with her sick daughter but states that her parents in laws had to go Bangalore as St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 56 her fathers in laws (Jija ji) had expired. According to him, they had gone to Bangalore by train but she is unable to produce the tickets. She is not aware if the card of the Kirya or death certificate of the Jija ji of her father in law would be available. She has further deposed that her husband was driving a school van initially and was working with one CA as field boy. The witness has testified that her husband had called her on the land line telephone of her father but she does not remember whether her husband had a mobile phone. According to her, at the time of the incident a land line connection was installed in the residence but she does not remember the number and is unable to tell whether her husband made a call from the land line or mobile. DW1 has also deposed that after she received the telephone calls she rushed to her in laws house with her brother Praveen Kumar with his scooter. She does not remember if the call to the police had been made by that time. According to her, there was no police personnel present at the site when she reached there and only neighbours had gathered and the police came after 15 to 20 minutes after she reached there. She has testified that at the time when she reached the spot her husband was wearing pant and blue shirt but she is unable to tell whether it was the same which her husband was wearing at the time of the incident. DW1 has also deposed that at the time of the incident it was only her husband who was present in the house along with his two and a half year old daughter. She has admitted that the daughter of the St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 57 deceased was still with them but she did not tell the police when they came the spot that the child was present in the house when the incident took place nor she produced the child before the police. According to her, she did not make any complaint to any senior police officer at any point of time or to the court that she had been taken to the police station at night and detained or that her husband had been subjected to harassment/ torture or that no dress of her husband was changed at the police station. The witness has further deposed that on the next day she did not tell to the Magistrate because she was perplexed. According to DW1, when she had reached the house she had found jewellery articles lying scattered there and gold bangles and ear rings were lying scattered but she does not remember as to how many bangles and ear rings were lying there. She also does not remember whether the ear rings and bangles found scattered were those which the deceased used to wear daily. She has denied the suggestion that no such jewellery articles were lying scattered at the spot but has admitted that at the time when police came to the spot they found there were scratch marks on the chest of her husband and when the police inquired for the reason of the same she told them that her husband had fallen down in the bathroom and received the injuries as a result of the fall on the bucket. She has also admitted that her husband did not fall on the bucket in her presence. According to her, it was probable that the scratch marks would be fresh but she does not remember. DW1 St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 58 has further deposed that she did not notice any bite mark on the left middle finger of her husband as reflected in Ex PW3/A and has admitted that her husband was taken to BJRM hospital for examination. She has testified that her in laws had not made any demand from her parents but has denied that the police had conducted detail investigation and inspected the spot of the incident. She has also denied that her husband had got recovered the jewellery of the deceased from the gamla on the roof. She has admitted that the cooler was seen the photographs at place and had not been moved to secure entry and only the wire mesh had been planted. She has also admitted that in order to cut the wire mesh from the outside one had to move the cooler. According to her, the door opening on the balcony on which the window opened was about two to three feet away from the window. She has admitted that in case if the window was opened the door could not be opened by putting a hand from the window as the distance was almost two to three feet. She has denied that she was deposing falsely only to save her husband.

FINDINGS:

I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also considered the written synopsis filed on behalf of both the parties and St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 59 the evidence on record. I propose to first deal with all the allegations/ averments individually in a tabulated form and later on comprehensively.

 Sr.       Name of the                              Details of deposition
 No.         witness
PUBLIC WITNESSES:
1.      Mahender Muni           He is the father of the decease who has deposed on  
        (PW1)                   the following aspects:
                                1. That   deceased   'A'     was   his   daughter   and   he  

married his daughter 'A' with Anshu Rastogi son of Mange Ram Rastogi on 19.11.2000.

2. That the accused Aman Kumar Rastogi was the eldest brother of Anshu Rastogi and the in­laws of his daughter were residing at house No.4 D, CC Block, Shalimar Bagh, Delhi.

3. That after the marriage of his daughter, the father of Anshu Rastogi raised one extra floor unauthorizedly in their premises and he (witness) had paid a sum of Rs. Two Lacs in two installments on their demand and his daughter after marriage was shifted to the fifth floor.

4. That there were two portions in the said extra floor. In one portion his daughter 'A' was residing with her husband and in the other portion accused Aman Kumar Rastogi was residing.

5. That on the night intervening 25th and 26th of June, 2004, while he was sleeping in his house at Gurgaon along with his family, at about 11:40 PM accused Aman Kumar Rastogi made a telephone call at his residence and informed him that his daughter 'A' was dead but he was unable to say anything about her death but asked him to reach immediately.

St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 60

6. That the accused Aman Kumar further informed him that 'A' was having pain in her stomach and that she was bleeding from her nose and on getting this information he took up a taxi and reached their house at Shalimar Bagh along with his son Gopesh Kumar.

7. That they reached the house of the accused at about 1.10 or 1.15 a.m. and on reaching the house they found that the police had already arrived there and accused Aman Kumar Rastogi and his wife were also present besides Anshu, the husband of his daughter 'A' who was present at the stairs.

8. That when he reached their house, police was carrying out the investigations and when he tried to go inside the house, he was stopped by the police.

9. That it was after sometime only when he introduced himself as the father of the deceased 'A' that he was allowed to go inside the room where he found that the dead body of his daughter 'A' was lying on the double bed and the police officials were making inquiries from accused Aman Kumar Rastogi.

10. That the neck of 'A' was bending slightly downward, outside the double bed and the nostrils were full of blood.

11. That there were some injury marks on the forehead as well as below one of the eyes and there were some ligature mark on the neck and he observed that the gold bangles which the deceased generally used to wear were missing.

12. That there was no jewellery on the neck and one ear ring of the left ear was also missing.

St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 61

13. That there was a blood stained helmet lying by the side of the bed and one lock also having blood stains which was present there besides one sandal, one doll and one button which were also found lying at the spot.

14. That he suspected that accused Aman Kumar Rastogi might be person responsible for the crime which fact he told to the police and when police made sustained inquiries from the accused Aman Kumar Rastogi, he confessed his guilt and disclosed that he committed murder of 'A' and had removed the jewellery from her person which he had concealed in a pot on the roof top.

15. That thereafter, he along with his son Gopesh Kumar, police officials and accused Aman Kumar Rastogi went upstairs where accused Aman Kumar Rastogi took out the jewellery items and one screw driver from a pot which was lying concealed there.

16. That he had requested the police to call the SDM so that the entire proceedings could be carried out in his presence but his request was declined and despite his request the police did not take the finger prints of accused Aman Kumar Rastogi nor seized the wet clothes which were lying in the bath room.

17. That the bed sheet on which the dead body of his daughter 'A' was lying was not having any blood stains nor her clothes were having any blood stains and it seemed that the wearing apparels of his daughter and the bed sheet had been replaced and the police continued their proceedings.

The witness has correctly identified the accused Aman Kumar in the court as well as the case property and has also proved the following documents:

                                Ex.PW1/A           Seizure memo of lock and helmet
                                Ex.PW1/B           Seizure memo of button 



St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh                Page No. 62
                                 Ex.PW1/C           Seizure memo of broken tooth 
                                Ex.PW1/D           Seizure memo of  one bunch of  keys,  
                                                   one   lock   another   bunch   of   key,   one  
                                                   doll and one chappal
                                Ex.PW1/E           Seizure memo of the shirt of accused
                                Ex.PW1/F           Seizure   memo   of   the   jewellery   and  
                                                   screw   driver   got   recovered   by   the  
                                                   accused
                                Ex.PW1/G           Dead body identification report
                                Ex.PW1/H           Seizure memo of  ear ring of right ear  
                                                   of the deceased
2.      Gopesh Kumar            He is the brother of the deceased who has deposed on  
        (PW2)                   the following aspects:
                                1. That   on   19.11.2000   his   sister   'A'     was   married  
                                   with  Anshu S/o Sh. Mange  Ram  Rastogi  as  per  
                                   Hindu Rites and customs and the accused Aman  
                                   Kumar Rastogi was the brother in law (Jeth) of  
                                   his sister. 

2. That during the intervening night of 25/26.06.04 he was sleeping in his house when at about 11.30/11.40 p.m. his father woke him up and told him that his sister had expired as he received a call from Aman Kumar and Aman also told him that blood was oozing from the mouth and nose of his sister and that she was having stomach pain.

3. That he along with his father came to Shalimar Bagh in taxi and he noticed that 30­40 public persons were standing near the main gate of the society.

4. That some persons were also standing on the staircase leading to the house of the accused and his brother in law/ Jija Anshu was standing in stairs.

St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 63

5. That he along with his father went upstairs where police persons who were present on the fifth floor stopped him and his father and not allowed them to enter the room in which the dead body of his sister was lying.

6. That after he told the police persons that he was the brother of deceased and the person accompanying him was father of deceased, the police officers allowed them to go inside the room but they instructed him and his father not to touch anything.

7. That the accused Aman and his wife were inside the room in which the dead body was lying and he noticed that the head of his sister was completely not resting on the bed and mouth and nose of his sister were full of blood and blood was also on her face and there were four five ligature marks on the neck.

8. That there was no blood on the floor and bed sheet.

9. That police made inquiries from Aman and the accused disclosed that he had committed the murder of his sister.

10. That there was cut mark on the finger and there were nail scratch marks on chest of accused.

11. That there was no jewellery on the body of his sister except one ear ring and one blood stained helmet and lock were lying on the bed and one bunch of keys was lying on the ground and other was lying on the bed.

This witness has also proved the seizure of various articles from the spot and also the jewellery along with the screw driver which were got recovered by the accused after his apprehension.

St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 64

3. Sh. Rajiv Rastogi He is the cousin brother of the accused who has (PW4) deposed on the following lines:

1. That during the intervening night of 25/26.06.04 he was present in his house bearing No. DH714A, Shalimar Bagh, Delhi and at about 11.30/12:00 night he received a call from Aman Rastogi, his cousin who him informed that the condition of 'A' was very serious and he requested to come to his house i.e. CC 4D, Shalimar Bagh.

2. That he reached the house of the accused where he saw the dead body of 'A' lying on the bed and there was blood on her mouth on which he informed his younger brother Pradeep who also came there.

3. That he asked Aman about the death of 'A' who told him that his parents had gone out.

4. That his brother Pradeep took his mobile and informed the PCR police at No. 100.

5. That the jewellery was recovered from the terrace of the house.

MEDICAL EVIDENCE

4. Dr. Sanjay Kumar He has proved the ME of the accused Aman Kumar (PW3) Rastogi which was prepared by Dr. Nirrupama which ME is Ex.PW3/A showing that he had observed the following injuries on the body of the accused:

1. Bruises over right side of upper chest and scratch marks

2. Bite marks on the left middle finger.

He has proved that the above injuries were opined as simple.

St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 65

5. Dr. M. Dass This witness has proved that on 23.08.04 he was (PW7) posted as CMO, Central Jail, Tihar Hospital and on that day an application was moved by Inspector K.C. Negi for obtaining the blood sample of Aman Kumar Rastogi, he collected blood sample of accused in two vial viz one 5 ml and another two drops for dry up which he handed them over to Inspector K.C. Negi vide handing/taking over memo Ex.PW7/A.

6. Dr. Anil Shandilya This witness has proved having conducted the (PW12) postmortem on the dead body of the deceased vide report Ex.PW12/A and has proved that the cause of death was cause of death was Asphyxia resulting from cumulative effect of ligature and manual strangulation and it was a homicidal death. He has also proved that all the injuries were anti mortem in nature and fresh prior to death in duration caused by hard blunt force. He had observed the following injuries upon the deceased:

1. Oval shaped human teeth bite mark present over left side cheek with mark of indentation, with dried blood, reddish in colour.

2. Right lower first incisor teeth found missing from the socket and buckle cavity. On inspection socket found fractured with local collection of Haematoma and mark of contusion and indentation at the mucosan aspect of lower lip correspondingly reddish in colour.

3. Multiple reddish bruise of irregular shape bearing in size from size 2cm x 3cm to 2cm x 4cm present over outer aspect of both arms, shoulder, fore­arm and at upper chest. On incision underneath tissue found contused with effusion of reddish blood.

St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 66 FORENSIC EVIDENCE:

7. Sh. V. Shankara He is the Senior Scientific Officer (Bio), FSL Rohini Narayanan who has proved the Biological Report and the (PW10) Serological report in respect of the exhibits sent to him which reports are Ex.PW10/A and Ex.PW10/B respectively. The biological report Ex.PW10/A shows the presence of blood of the deceased on the shirt of the accused.

8. Sh. Parshuram He is the Senior Scientific Officer (Physics), FSL Singh (PW11) Rohini who has proved having examined one light brown colour button and one light brown colour full sleeves shirt. He has prove that on examination and subsequent comparison of the buttons B1 to B7 on shirt Ex. 9 and button Ex.7 it was found that they were similar in respect of colour, texture, design, number of holes, diameter of holes, thickness and the distance between the holes vide his detailed report which is Ex.PW11/A. POLICE WITNESSES (Proving investigations)

9. Const. Chunni Lal This witness has proved having taken the photographs (PW5) of the scene of crime negatives of which are Ex.PW5/A­1 to Ex.PW5/A­10 and the photographs are Ex.PW5/B­1 to B­10.

10. HC Mahesh This witness has proved that he was sent by the Kumar (PW6) Investigating Officer to bring postmortem report and viscera petti from BJRM Mortuary which he obtained and handed over to the Investigating Officer which were seized vide memo Ex.PW6/A.

11. ASI Sanaru Ram This witness was posted in Police Control Room as (PW8) Channel Operator on Channel no. 101 on 25/26.6.2004 and has proved having received an information at around 00:55 hours from phone No. 9818015441. He has proved the PCR form which is Ex.PW8/A St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 67

12. HC Vijay Kumar He is the MHCM who has proved having deposited (PW9) the case property in the Malkhana vide entries Ex.PW9/A. He has also proved having sending the case property to the FSL vide entries in Register No. 21 copies of which are Ex.PW9/B.

13. HC Prem Singh He is a formal witness being the Duty Officer who has (PW13) proved the copy of FIR which is Ex.PW13/A and the endorsement made by him on the rukka which is Ex.PW13/B.

14. SI Manohar Lal He is the Draftsman who has proved having prepared (PW14) the scaled site plan of the spot of incident which site plan is Ex.PW14/A.

15. Ct. Sri Bhagwan This witness has proved having obtained the PCR (PW15) form and handed over the same to Investigating Officer which was seized vide memo Ex.PW15/A.

16. Ct. Neeraj This witness has proved having delivered three (PW16) envelopes to Ld. Metropolitan Magistrate, Joint Commissioner of Police and Deputy Commissioner of Police (HQ) on his government motorcycle.

17. Ct. Kulwant Singh This is a formal witness who has proved that on (PW17) 24.08.2004 on the instruction of Investigating Officer he took eleven sealed pullandas along with the FSL form and 25.8.2004 one sealed wooden box for depositing the same in the FSL, Rohini and after depositing the same in the FSL, he deposited the receipt with the MHC(M).

18. HC Surender He is also a formal witness who has proved having (PW18) taken the accused to BJRM Hospital for his medical examination and after his medical examination he handed over the accused and his ME to Investigating Officer.

19. SI Ramesh Dutt This witness had reached the spot after having Sharma (PW19) received the information and had participated in the investigations done at the spot. He has proved the following documents:

St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 68

                                 Ex.PW1/A           Seizure memo of lock and helmet
                                Ex.PW1/B           Seizure memo of button 
                                Ex.PW1/C           Seizure memo of broken tooth 
                                Ex.PW1/D           Seizure memo of  one bunch of  keys,  
                                                   one   lock   another   bunch   of   key,   one  
                                                   doll and one chappal
                                Ex.PW1/E           Seizure memo of the shirt of accused
                                Ex.PW1/F           Seizure   memo   of   the   jewellery   and  
                                                   screw   driver   got   recovered   by   the  
                                                   accused
                                Ex.PW1/H           Seizure memo of  ear ring of right ear  
                                                   of the deceased
                                Ex.PW19/A          Arrest memo of the accused
                                Ex.PW19/B          Personal search memo of the accused
                                Ex.PW19/C          Disclosure statement of the accused
                                Ex.PW19/D          Seizure   memo   of   the   pant   and  
                                                   underwear of the deceased
20.     Insp. K.C. Negi         He   is   the   investigating   officer   and   has   proved   the  
        (PW20)                  various investigation proceedings conducted by him. 

Coming now to the microscopic examination of the evidence against all the accused.

Ocular Evidence:

Ocular evidence/ eye witness count no doubt is the best evidence in any case. Unfortunately in the present case there is no ocular evidence/ eye witness, the crime being shrouded in secrecy and the entire evidence is circumstantial.

St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 69 Medical Evidence:

The case of the prosecution is that the deceased 'A' was a victim of aggravated sexual assault and had been killed by the accused since after she had offered stiff resistance to the accused. In the said process even the accused had suffered certain injuries. Before proceeding further with my findings on the aspect of aggravated sexual assault, it is necessary to first discuss the law in this regard.

Modi in his book on Medical Jurisprudence 12th Edition page 336 has given the characteristics of injuries which may be received by the victim of an aggressive sexual assault as under:

"Marks of violence on the body: the body, especially the fore arms, wrist, face, breasts, chest, lower part of abdomen inner aspects of thighs and back, should be examined for marks of violence, such as scratches, abrasions and bruises, as a result of struggle. If present, they should be properly identified, recorded and carefully described as regards their appearance, extent, situation and probable duration. Such marks are more likely to be found on the bodies of grown up women who are able to resist than on the bodies of children who are incapable of offering any resistance.

St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 70 There may be teeth marks on breasts, nipples, cheeks or lips.... In the case of struggle the victim frequently scratches the assailant, any broken nails should be noted and debris under the nails removed carefully by a tooth pick."

Further, Modi in his book Medical Jurisprudence 12th Edition page 30 has also discussed the characteristics of injuries which may be received by a men at the hands of his victim in a sexual assault case as under:

➔ The presence of tears on the clothes or loss of any portion or buttons from them indicating the evidence of a struggle. ➔ The presence of the marks of a struggle, such as bruises, scratches and teeth bites on the body, especially on the face, hands, thighs and genitals.

Further, on Page 31 of 12th Edition (Modi on Medical Jurisprudence) Modi has also discussed about the feasibilities of intercourse by single man on a single healthy built up woman as follows:

➔ "Can a healthy adult female be violated against her will?

Under ordinary circumstances it is not possible for a single man to hold sexual intercourse with a healthy adult female in full possession of her senses against her will, unless she is St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 71 taken unaware, thrown accidentally on the ground and placed in such a position as to render her completely helpless or unless the swoons away from fright or exhaustion after long resistance. The act may be accomplished, if more than one men are concerned in the crime, or if the woman is too feeble to resist. In giving a definite opinion it is necessary to take into consideration the relative strength of the parties and the community to which particularly the woman belongs. It is obvious that a woman belonging to a laboring class who is accustomed to hard and rough work will be able to offer a good deal of resistance and to deal blows on her assailant and will thus succeed in frustrating his attempts at violation. On the contrary, a woman belonging to middle on rich class of an educated family and not habitual to go about along by herself will not be able to resist for long and will soon faint or will be rendered powerless from fright or exhaustion."

In the present case, Dr. Sanjay Kumar (PW3) has duly proved the ME of the accused which is Ex.PW3/A and PW12 Dr. Anil Shandilya has proved the postmortem report of the deceased which is Ex.PW12/A. Ld. Counsel appearing on behalf of the accused has vehemently argued that the postmortem report Ex.PW12/A does not St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 72 bear the signatures of Dr. Anil Shandilya due to which reach reason it cannot be read into evidence. I have considered the objection so raised and I may observe that Dr. Anil Shandilya (PW12) in his testimony before the court has admitted this fact of the report is not bearing his signatures but has duly explained the same stating that he had forgotten to sign the same. Therefore, being the author of the report who has personally appeared and proved its contents, there is no reason to doubt the authenticity of the same only because it does not bear the signatures of the doctor concerned. PW12 Dr. Anil Shandilya has also proved that the cause of death was Asphyxia resulting from cumulative effect of ligature and manual strangulation and the death was homicidal.

It has been proved Firstly that on the body of the deceased oval shaped human teeth bite marks were present over left side cheek with marks of indentation, with dried blood, reddish in colour; Secondly the right lower first incisor teeth was found missing from the socket and buckle cavity and on inspection socket was found fractured with local collection of Haematome and mark of contusion and indentation at the mucosan aspect of lower lip correspondingly reddish in colour. This conclusively establishes aggravated sexual assault and struggle by the deceased.

St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 73

I may now observe that certain fresh injuries were also present on the body of the accused as shown in Ex.PW3/A are as under:

1. Bruises over right side of upper chest and scratch marks which are indicative and prove the resistance to sexual assault by the victim.

2. Bite marks on the left middle finger.

These bruises and bite marks are indicative and conclusively establish the stiff resistance offered by the deceased at the time of incident. Also the bite marks on the left middle finger of the accused corresponds to the injury on the deceased showing that her tooth had broken which tooth was found from the spot of the incident. This proves that the deceased had strongly resisted his advances as a result of which her lower incisor tooth was fractured from the socket itself. This is reflecting of the force used.

I am now discussing the individual injuries found on the body of the deceased as evident from the postmortem report Ex.PW12/A as under:

1. Oval shaped human teeth bite mark present over left side cheek with mark of indentation, with dried blood, reddish in colour, proving an aggravated sexual assault on the deceased.

2. Right lower first incisor teeth found missing from the socket and buckle cavity. On inspection socket found fractured with St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 74 local collection of Haematoma and mark of contusion and indentation at the mucosan aspect of lower lip correspondingly reddish in colour. This tooth was found lying at the scene of crime with the dead body and proved the resistance offered by the deceased at the time of the assault and corresponds to the injury on the deceased showing that her tooth had broken which tooth was found from the spot of the incident.

3. Multiple reddish bruise of irregular shape bearing in size from size 2 cm x 3 cm to 2 cm x 4 cm present over outer aspect of both arms, shoulder, fore­arm and at upper chest. On incision underneath tissue found contused with effusion of reddish blood. This proves the resistance offered by the deceased and corresponds to the scratch marks and bruises found on the chest of the accused.

4. In the Neck the tipicla abraded bruise consistent with manual strangulation present over front of upper 1/3rd of neck with underline tissue found contused, Haematoma was extending upto tracheal rings. Traacheal Mucoza was congested with rusty coloured fine froth. Three consecutively placed horizontal ligature mark of size 17 cm x 1 cm were present over front and both lateral aspect of lower to middle third part of neck. On dissection the underneath tissue was found contused with contusion of blood which injury is compatible with the findings St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 75 of strangulation by hand as well as ligature material.

5. Examination of Head showed that brain matter was congested and edematous which is compatible to the findings of death by use of force and assault on head.

6. Examination of Chest showed that bilateral lungs were congested and edematous, which is compatible with the findings regarding death due to asphyxia.

7. Examination of Abdomen and pelvis showed that the entire abdominal viscera was congested. Multiple intestinal loops were contused. Stomach was containing semi digested unidentifiable food and Mucosa was healthy.

I may observe that in so far as the above injuries are concerned, Mahender Muni (PW1), Gopesh Kumar (PW2), SI R.D. Sharma (PW19) and Inspector K.C. Negi (PW20) have in their oral testimonies corroborated each other on the existence of the said injuries and also proved that the corresponding injuries on the body of the deceased. They have testified that when they reached the house of the deceased, they found bruises and scratch marks on the right side chest of the accused and the bite mark on the left side of the deceased and strangulation marks on her neck. PW1 Mahender Muni and PW2 Gopesh Kumar have specifically mentioned having observed the teeth mark on the left side cheek of the deceased and also proved that a broken tooth was found at the spot. They also noticed bruises on the St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 76 forearm and upper chest of the deceased and strangulation marks around her neck and dried blood in the nose. I may observe that the upper button of the shirt worn by the accused was found missing and the pocket of the shirt was also found partially torn which shirt was taken into possession by the police and is Ex.P­5 and the button of the shirt is Ex.P­3. It is evident that during the struggle and the resistance offered by the deceased, the button of the shirt of the accused came out and his pocket was also torn which explains the bruises present over the right side of the chest.

I hereby conclude that the bite mark on the left middle finger of the accused shows that the said injuries are peculiar to the resistance to sexual assault and the presence of fresh injury on the person of accused proves that none else except the accused was perpetrator of crime and the corresponding broken right lower first incisor teeth which was found lying at the spot again strengthen the case of the prosecution. Both the injuries i.e. scratch mark on the chest of the accused and the bite mark on his middle finger of the left hand coupled with the partially tearing of the pocket of the shirt and the upper button of the shirt worn by the accused found missing, suggest the sexual attack on the deceased and stiff resistance on her part. The bite mark on the cheek of the deceased, bruises over breast, forearms, shoulders, head and neck also proves that the deceased had struggled with the accused and had put up stiff resistance and the St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 77 injuries are peculiar of an aggravated sexual assault. Forensic Evidence:

In so far as the FSL report is concerned, I may observe that the Biological Report Ex.PW10/A and Serological Report Ex.PW10/B have been duly proved by PW10 Sh. V. Shankarnarayana, Senior Scientific Officer (Bio). Further, the FSL report in respect of the exhibits lifted from the spot has also been duly proved by PW11 Parshuram Singh Senior Scientific Officer (Physics) which report is Ex.PW11/A. For the sake of convenience the opinion/ findings of the expert in respect of the various articles recovered from the spot and the exhibits are put in a tabulated form are as under:

Sr. Details of Exhibit no. Exhibit no. Opinion of the Expert No. the exhibits given in the given in Court the FSL

1. Lady's shirt Ex.P­6/1 4a Blood of Group A as that of the deceased was detected

2. Brassier 4c Blood of Group A as that of the deceased was detected

3. Shameez 4d Blood of Group A as that of the deceased was detected

4. Lock Ex.P­2 5 Blood of human origin was detected

5. Helmet Ex.P­1 6 Blood of human origin was detected

6. Tooth Ex.P­3 7 Blood of human origin was detected St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 78

7. Shirt Ex.P­5 9 Blood of Group A as that of belonging to the deceased was detected the accused

8. Button found Ex.P­3 Ex.7 The button was found similar to in the room (Physics the buttons found present on the of the Division) shirt of the accused Ex.P­5 in deceased respect of colour, texture, design, number of holes, diameter of holes, thickness and the distance between the holes.

This button recovered from the spot was from the shirt of the accused whose pocket was also found partially torn.

It is evident from the aforesaid that Firstly the shirt worn by the accused Aman Kumar Rastogi was having the human blood of 'A' Group which points out towards the involvement of the accused. Secondly the button were found missing from the shirt worn by the accused and its pocket was partially torn and hanging on its place proving the struggle and resistance put up by the deceased in which the button of the shirt of accused was detached from the shirt and the pocket was partially torn. Thirdly the button recovered from the place of incident tallied with the button of the shirt worn by the accused and points out towards the involvement of the accused. Lastly it is evident that no rape was committed upon the deceased since no semen stains were detected on the under garments of the St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 79 deceased and the aspect of rape also does not confirm from the findings of the postmortem.

Ld. Defence counsel has vehemently argued that in so far as the recovery of the button and the recovery of torn pocket of the shirt is concerned, it does not belong to the accused. It is alleged that the said shirt was planted by the investigating officer since it is evident from the testimony of Meenu Rastogi (DW1) that at the time of incident the accused was wearing a blue coloured shirt. It is argued by the Ld. Defence Counsel that under the given circumstances, there was ample opportunity to the investigating officer to have taken the photographs of the shirt worn by the accused at the time of the incident which has not been done and the benefit of the same is required to be given to the accused. In this regard I may observe that the Crime Team had been called to the spot even before the arrest of the accused and the accused had tired to mislead the police by stating that the incident was an outcome of a robbery attempt. Therefore, under the given circumstances, there was no occasion for the investigating officer to have taken the photographs of the shirt worn by the accused since at that time the accused had already mislead the police into believing that there was a robbery. In fact for the first time the police interrogated the accused was only after the father of the deceased raised a finger of suspicion on the accused after noticing his physical condition. Further, in so far as DW1 Meenu Rastogi is St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 80 concerned, she is an interested witness and her testimony does not find any corroboration from any other source rather the seizure memo of the shirt worn by the accused which is Ex.PW1/E shows that at the relevant point of time the accused was wearing a cream colour shirt, whose fourth button was missing which was converted into a pullanda after which it was seized and taken into possession which shirt is Ex.P­5 and duly identified by the both Mahender Muni (PW1) and Gopesh Kumar (PW2). There is, therefore, no reason to doubt the same.

Accused was the only person present in the house at the time of incident:

The case of the prosecution is that the accused Aman Kumar Rastogi was residing on one portion of the house along with his wife and children whereas the deceased 'A' , her husband and 2½ year old daughter were residing on the other portion on the same floor i.e. fifth floor which was the unauthorizedly constructed portion and at the time of incident the wife of the accused was away to her parents house which fact stands proved by DW1 Smt. Meenu Rastogi who is the wife of the accused. She has also testified that the parents of the accused i.e. in­laws of the deceased had gone to Bangalore whereas the husband of the deceased was not at home. The defence of the accused is that the crime had been committed by some robbers who St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 81 had entered the room from the window by cutting the wire mesh and had murdered the deceased 'A' by strangulating whereas he reached the place of incident much later. It that be so, how was it that nothing else in the entire house was touched. Also, if the accused come to the house later, then why he chose to wait and did not raise any alarm or call the police. I am not convinced by this arguments put forward by the Ld. Defence Counsel.

According to DW1 Smt. Meenu Rastogi who is the wife of the accused, she had received a call from the accused at about 11:00 pm and the accused had informed that someone had murdered 'A' on which she reached the house at about 11:45 pm. The father of the deceased namely Mahender Muni (PW1) has deposed that it was the accused to called him up at 11:40 pm who informed him that his daughter 'A' was dead and on his asking the accused informed him that 'A' was having pain in her stomach and that she was bleeding from her nose. This aspect duly established since the accused in his statement under Section 313 Code of Criminal Procedure has admitted giving a call to the father of the deceased.

PW4 Rajiv Rastogi who is the cousin of the accused has proved that he had received a call from the accused at about 11:30 pm to 12:00 midnight who informed him that the condition of the deceased was very serious on which he reached the house of accused within five minutes and it was his brother Pradeep who had made a St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 82 call to the PCR from his mobile No. 9818915441 as evident from the PCR Form which is Ex.PW8/A duly proved by ASI Sanaru Ram which shows that the call was received at 00:55 hours. It is also evident that the accused did not give any information to the police at the first instance. Rather he had been calling up his relatives rather than the police. This conduct of the accused who defaulted in giving information to the police which is relevant and points a finger of suspicion upon him.

Time of arrest of the accused:

The case of the prosecution is that after the father of the deceased raised a finger of suspicion on the accused and the Investigating Officer carried out sustained interrogation on him at the spot itself, the accused broken down and disclosed about his involvement in the present case pursuant to which he got the recovery of jewellery and screw driver effected from the roof of this house after which he was arrested in the morning. I may observe that the police had come to the spot after 12:00 midnight and when PW1 Mahender Muni reached to the spot at about 1:10 am (midnight) police was already present at the spot. In fact the accused was apprehended by the police after the father of the deceased raised a suspicion on him and also after seeing physical condition as he was having injuries on his body. Thereafter, on which he was interrogated and he made a St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 83 disclosure statement leading to the recovery of the jewellery articles and his formal arrest was made only later. I may mention that no time is mentioned in the arrest memo which is nothing but a sheer negligence on the part of the investigating officer. This time of arrest under these circumstances has to be gathered from the surrounding circumstances. It is evident that the accused had been produced before the doctor at BJRM Hospital after which he was taken to the police station. This establishes that the recovery of the articles was made much before that. Ld. Counsel appearing on behalf of the accused has placed his reliance on the testimony of investigating officer Inspector K.S. Negi (PW20) wherein he had specifically stated that the recovery of the articles got recovered by the accused at about 8:30 am but this version does not appear to be correct has it does not find support the testimonies of other witnesses and also from the medical record which shows that by 7:30 am the accused had already been produced before the doctor. Under these circumstances, the question of the recovery being made later does not arise and I hold that the arrest of the accused was effected before 7:30 AM.

Recovery of the jewellery articles at the instance of the accused:

The case of the prosecution is that after the father of the deceased raises a suspicion upon the accused on seeing his condition and also seeing the body of his daughter, the accused was interrogated St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 84 on which he disclosed his involvement in the present case which disclosure is Ex.PW19/C. This aspect of the accused having made a disclosure finds due corroboration from the testimony of Mahender Muni (PW1), Gopesh Kumar (PW2), R.D. Sharma (PW19) and Inspector K.C. Negi (PW20). In the said disclosure the accused had disclosed to the police the fact of having committed aggravated sexual assault upon the deceased and thereafter killed her by strangulation and in order to screen himself from legal punishment. He also disclosed that he cut the wire mesh of the window with the help of screw driver and removed the ornaments from the body of the deceased and concealed from the same in the garbage over the roof of the room. Pursuant to the aforesaid disclosure he got recovered one screw driver, four gold bangles, one gold chain, one gold ear ring. For the sake of convenience the various articles got recovered by the accused are put in a tabulated form as under:

 Sr.      Details of the articles       Exhibit no. in       Name of the witnesses who 
 No.                                     the Court           have proved the recovery
1.      Four Gold karas                Ex.P­14             PW1, PW2, PW19 & PW 20
2.      One Gold chain                 Ex.P­15             PW1, PW2, PW19 & PW 20
3.      One Gold ear ring              Ex.P­16             PW1, PW2, PW19 & PW 20
4.      One Screw Driver               Ex.P­16             PW1, PW2, PW19 & PW 20

I may observe that Section 27 of the Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 85 relevant, provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.

Recently, in the case of Bachchi Singh & Anrs. Vs. The State (NCT of Delhi) bearing Criminal Appeal No. 261/1997 decided on 30.7.2010 by the Revision Bench headed by Hon'ble Mr. Justice Badar Durez Ahmed of Delhi High Court wherein the Hon'ble Judges while making reference to the earlier decisions and various judicial pronouncements, briefly culled out the law relating to the statement made by the accused while in police custody and the extent to which it can be relied upon.

In State of U.P. Vs. Deoman Upadhyaya reported in 1960 Cri.L.J. 1504, Supreme Court inter alia, observed as under:­ "When a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 86 charge which may be made against him he may appropriately be deemed to have surrendered himself to the police. Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient. A person directly giving to a police officer by word of mouth information which may be used as evidence against him, may be deemed to have submitted himself to the "custody" of the police officer within the meaning of S.27 of the Indian Evidence Act."

Applying the settled principles of law to the facts of the present case it is evident that the recovery of the jewellery and he screw driver was at the instance of the accused pursuant to this disclosure statement. It is with this screw driver that the jali/ wire mesh of the window was partially removed.

Further, there is also a recovery of the jewellery worn by the deceased from the roof which recovery was effected pursuant to the disclosure statement of the accused. Ld. Defence counsel has vehemently argued that a large number of public persons were present St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 87 at the spot and there was sufficient opportunity for the police to join the public witnesses during investigations but the said disclosure statement has not been attested by any independent witness which shows that it has been fabricated later. It is further argued by the Ld. Defence Counsel that the place of recovery was accessible to others and therefore, the chance of some other persons having placed the jewellery at the spot cannot be ruled out.

I may observe in this regard that the non joining of public witnesses is only a Rule of Prudence and not a Rule of Law. Even otherwise in the case of Narpal Singh & Ors. Vs. State of Haryana reported in AIR 1977 SC 1066 it has been observed by the Hon'ble Supreme Court that normally the investigating officer should be sold to associate any eye witness with the recovery as it partakes of an attempt on the part of the investigating officer to make the witness omnibus. I may also observe that the requirement of law is not that the place was accessible to others or not but whether it was visible to others and if not then it is immaterial that the place of concealment is accessible to other. [Ref.: State of HP Vs. Jeet Singh reported in AIR 1999 SC 1293 and Tahir & Others Vs. State reported in 87 (2000) DLT 207 (Delhi) (DB)].

Applying the above principles of law to the facts of the present case, it is evident that not only PW1 Mahender Muni the father St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 88 of the deceased and Gopesh Kumar (PW2) the brother of the deceased were present at the time of recovery of the jewellery and the screw driver. Even PW4 Rajiv Rastogi who is the cousin of the accused and had come to the spot on his call, has stated in his evident that the jewellery had been recovered from the terrace of the house. There is, therefore, Hence, there is no reason to doubt the recovery of the jewellery articles and the screw driver at the instance of the accused within a few hours of the incident itself.

In view of my aforesaid discussion, I hereby hold that the prosecution has duly proved the recovery of the jewellery articles and the screw driver at the instance of the accused from the terrace of the house.

Subsequent conduct of the accused:

As per the provisions of Section 8 of the Indian Evidence Act, 1872 any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceedings, in reference to such suit or proceedings, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 89 subsequent thereto.

It is hardly said that there any action without a motive. Conduct of a person to proceedings in reference to any fact in issue or relevant fact is relevant. As per the provisions of Section 8 of the Evidence Act the conduct of a person whether previous or subsequent to an offence against whom is the subject of inquiry, is relevant if the said conduct influences or influenced by any fact in issue or a relevant fact as it throws light upon a person's motive, intention, good­faith etc. Subsequent act of a person which is indicative of desire to avoid or stifle judicial inquiry into an offence of which the party doing the act is accused or suspected is relevant. The conduct of a person immediately after the offence is relevant under these circumstances and in the absence of any explanation for such act the presumption would be against such person.

In the present case, it is evident that Firstly the accused before this court had defaulted in informing the police. Rather, he first informed his relatives and in fact the police was called only after his own cousin PW4 Rajiv Rastogi reached the spot along with his brother Pradeep Rastogi. I may also observe that any reasonable person under the given circumstances would have called the police at the earliest after having noticed the robbery and murder at his house. The accused on the other hand was first calling up his own family members and in St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 90 fact it was his cousin Pradeep Rastogi who immediately informed the police.

Secondly there is nothing on record to show that the accused got perplexed or disturbed at the time of the incident or raised an alarm or collected the neighbours on seeing what had happened which would have been the normal reaction of any reasonable person under given circumstances. Rather, having kept quiet for almost more than an hour, making calls to his wife and thereafter the family of the deceased lends confirmation to the fact that the accused was perhaps trying to conceal something.

Lastly the infant child of the deceased was stated to be in the same house at the time of the incident. The said child was not hurt nor anything else was touched anywhere in the house and the accused being the only person available in the house at that time does not offer any explanation as to what happened to the child. I may observe that the child has not been cited as a witness, rightly so as firstly the child was too small at the time to understand the implications of what had happened. Secondly it is otherwise not proper to subject a small child to the trauma and ordeal of court proceedings.

Defence of the accused:

One of the defence put forward by the accused in this regard is that his signatures were taken on blank papers which papers St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 91 were later on converted into his disclosure statement and he did not make any disclosure statement and the police had tortured him. According to the wife of accused namely Meenu Rastogi (DW1) she had been told by the accused that he had been tortured by the police as a result of which he received injuries on his chest.

Firstly she I may observe that Meenu Rastogi is not a witness to any torture upon the accused and has deposed on the basis of what has been told to her by the accused. Secondly as many as thirty to forty public persons of the area had collected at the spot when the police had come to the house and therefore, to say that the police had subjected the accused to third degree torture and scratch his chest and given him a bite on his finger before his wife Meenu reached the spot appears to be impossible. Lastly DW1 Meenu Rastogi has admitted in her cross­examination that when the police came to the spot the injuries were already present on the chest of the accused and when they inquired she told them that he had fallen in the bathroom. This conclusively established that Meenu Rastogi who is the wife of the accused is only giving misleading explanations to save her husband from the legal consequences.

Ld. Counsel appearing on behalf of the accused has also submitted that no independent public witness has been joined during the investigations despite their availability as a large number of public persons were present at the spot and hence the various memo in St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 92 respect of the recovery of jewellery articles and other articles cannot be relied upon. In this regard, I may observe that the aforesaid recovery/ seizure memos had been made in the presence of public witnesses including father and brother of the deceased and also the cousin of the accused Rajiv Rastogi. In fact in his cross­examination, he has admitted that he remained at the spot till the time the police arrived and the jewellery articles were recovered from the terrace of the house though he is unable to tell whether the recovery was made through the Dog Squad. Therefore, there is no reason to doubt the recovery.

It is also argued that it is a case of robbery and in order to solve their case the police has deliberately arrested the accused in connivance with the parents of the deceased. In this regard I may observe that the accused was the only person present in the house along with the deceased. No other room in the house was touched nor any other articles in the same room was taken. The circumstantial evidence as discussed herein above clearly shows that the job of removing the wire mesh and ornaments of the deceased was done very hurriedly only to cover up and screen the crime which only point out towards one conclusion i.e. towards the guilt of the accused. Had it been a case of simple robbery other things in the house would have also been disturbed whichis not the case. Further, the injuries present on the body of the deceased and the corresponding injuries present on St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 93 the body of accused do not point out towards robbery but rather conclusively point towards the guilt of the accused. The accused had committed aggravated sexual assault upon the deceased and fearing that he may be exposed, he strangulated her and killed her after which he tried to divert the course of investigations by tampering with the scene of crime.

Motive:

The case of the prosecution is that the accused Aman Kumar Rastogi had committed aggravated sexual assault upon the deceased who was the wife of his younger brother and when the deceased resisted the same, the accused committed her murder by strangulation apprehending that he would be exposed in case if she survived and thereafter disguise and conceal the scene of crime to make it appear as a robbery.

The father of the deceased namely Mahender Muni has been examined as PW1 has also alleged that the deceased being repeatedly harassed for demand of dowry and that the husband of the deceased, his parents and brother in law had connived with each other and conspired to kill his daughter.

Motives of men are often subjective, submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. Motive is St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 94 indicated only to heighten the probability that the offence was committed by the person who was impelled by such motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive. Motive has to be gathered from the surrounding circumstances and such evident should form one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motive is best known to the perpetrator of the crime and not to others.

Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.

Applying these settled principles to the fact of the present case, it is evident that in so far as the aspect of demand of dowry and the allegations under Section 304­B Indian Penal Code are St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 95 concerned, the father of the deceased namely Mahender Muni (PW1) has come up with this allegation much later. In fact in his statement made to the police at the first instance the fact regarding the solemnization of the marriage of the deceased 'A' with Anshu Rastogi and the persistent demand of dowry made by the husband of the deceased namely Anshu Rastogi and his relatives namely the present accused Aman Kumar Rastogi, wife of Aman namely Meenu, Mange Ram father in law of the deceased, Saroj the mother­in­law of the deceased and one Praveen the brother of the wife of the accused was not made and this is an improvement in his later statement. The aspect of demand of Rs. Two lacs for construction of the room and the payment of same and also the demand of motorcycle and other household articles, do not find a mention in his first statement. Further, the aspect of demand of Rs.1,50,000/­ made by Anshu Rastogi on the pretext that he wanted to started his business along with a partner also does not find a mention in any other statement. Rather all these aspects only finds a mention in the complaint filed by Mahender Muni (PW1) before the Ld. MM after two and a half months of the incident which complaint is Ex.PW1/DA. Except for the oral testimony of the father of the deceased there is no other independent corroboration to the aforesaid and therefore, under these circumstances, it cannot be held that the motive of the crime was dowry.

St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 96

However, after having gone through the circumstantial and medical evidence on record categorically points out that the motive of accused was to silence the deceased after he had committed an aggravated sexual assault upon her. The corresponding injury marks on the body of the accused prove that the deceased had offered stiff resistance and did not surrender to the illegitimate demands of the accused as a result of which he was fearful and apprehensive of being exposed. He therefore killed his victim and silenced her forever. Contradictions and discrepancies:

It has been argued by the Ld. Defence counsel that there is a major discrepancy in the time of arrest of the accused since the arrest memo of the accused does not show any time of arrest and as per the testimony of the investigating officer the accused was arrested in the morning and the recovery of the jewellery articles had been effect at 8:30 am. He submits that this strengthens the case of the accused that he had been subjected to torture during the intervening night and his signatures were taken on blank papers and has been falsely implicated in the present case only to work out the same. It is also argued that the prosecution has set up three different versions Firstly one set up in complaint filed by the father of the deceased; Secondly as contained in challan and Thirdly as given to the court. Further, it has been argued that the father and brother of deceased had leveled allegations of St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 97 demand of dowry against the accused and his family members but they have not stated such allegations in their statements to the police and in such a case enmity is the motive on the part of father and brother of deceased to falsely implicate him in this false case.

I have considered the submissions made. There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.

This court has already rejected the version of the father of the deceased regarding involvement of the entire family in the death of the deceased on account of demand for dowry. In this regard I may observe that the accused had been apprehended in the intervening night and his own wife admits that he had been taken to police station after 2:00 am (during midnight). In so far as the aspect of the case now made out by the accused in the court is concerned, all material improvements in the testimonies of the witnesses which are inconsistent with their earlier statements made to the police have been rejected. Further, any complaint made by the complainant Mahender Muni to the Ld. MM under Section 156 (3) Cr.P.C. has to be taken up St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 98 along with the charge sheet and the evidence on record has to be read in the light of the same.

In the present case I have already observed that the prosecution has failed to prove and substantiate the said allegations against the other family members of the accused. Further, in so far as the aspect of robbery is concerned, the same has already been rejected in view of the circumstantial evidence on record in the form of medical and forensic evidence, which points out towards the accused. Hence the irresistible conclusion as emerging from the record is that it is the accused who was responsible for having committed aggravated sexual assault upon the deceased and when she resisted, he strangulated her resulting in her death.

FINAL FINDINGS:

In the case of Sharad Birdhichand Sarda Vs. State of Maharastra reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre­requisites before conviction should be recorded, which are as under:

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;

St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 99

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 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.

Applying the above principles of law to the present case it is evident that the identity of the accused Aman Kumar Rastogi stands established being the elder brother in law (Jeth) of the deceased 'A' . It stands also established that on the date of incident i.e. on the intervening night of 25­26.6.2004 the accused Aman Kumar Rastogi and deceased 'A' were the only persons who were present in the house along with the two and a half years old daughter of 'A' . It also stands St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 100 established that the parents of the accused being away to Bangalore, his wife Meenu had gone to her parental house and the husband of 'A' namely Anshu Rastogi was away to Panipat for his business. It has been established that the accused Aman Kumar Rastogi tried to commit rape upon 'A' and when she resisted the accused become apprehensive and strangulated her. It is further established that instead of calling the police the accused called up his cousin brother Rajiv Rastogi and the father of the deceased namely Mahender Muni. It also stands established and proved that the accused in order to screen himself from legal punishment caused disappearance of evidence of murder by removing the wire mesh of the window to show an outside entry and also removed the ornaments from the body of the deceased which he put under a flower pot on the terrace while nothing else in the house was touched. The prosecution has also proved that the accused defaulted in calling the police and it was in fact his cousin Pradeep who had informed the police which was almost after one hour of the incident. The injuries on the body of the deceased and on the body of the accused have also been established and it stands proved that the shirt worn by the accused was having human blood stains of blood Group A establishing the involvement of the accused in the incident. It also stands established that a button was found missing from the shirt worn by the accused and its pocket was partially torn and hanging on its place with corresponding scratch marks and bruises St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 101 on his chest establishing that the deceased had put a stiff resistance and struggled with the accused in which process the button of shirt of accused was removed from the shirt and pocket got partially torn. It stands established that the button recovered from the place of incident tallied with the other buttons of the shirt worn by the accused at the time of the incident which was seized at the spot itself conclusively establishes the involvement of the accused. The prosecution has also proved that when the accused was apprehended and interrogated he broke down and admitted his involvement in the offence and also made a disclosure after which he got recovered the gold jewelery i.e. one ear ring, four karas and one chain which he had removed from the body of the deceased and the screw driver with which he removed the wire mesh of the window in order to screen himself from the offence and divert the course of investigations to make it appear as a robbery. Further, it stands established that the accused was having bruises over his chest and bite mark on the middle finger of his left hand which were received by him in the resistance put up by the deceased which injuries are peculiar to the resistance to a sexual assault. It has also been established that the deceased was having a bite mark on her cheek, bruises over breast, forearms, shoulders, head and neck showing that the accused had committed an aggravated sexual assault on the deceased who had put a stiff resistance and struggled with the accused. The prosecution has been successful in proving the identity St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 102 of the accused, the manner in which the offence had been committed, place of commission of the offence, the investigations including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.

Therefore, I hereby hold that the prosecution has successfully established that the cause of death was asphyxia resulting from cumulative effect of ligature and manual strangulation. It stands established that the accused had committed aggravated sexual assault upon the deceased and thereafter intentionally strangulated and killed her in order to screen himself from being exposed, which injury (strangulation) was sufficient in the ordinary course of nature to cause death. It has been further established that the accused thereafter in order to screen himself from legal punishment and to divert the course of investigations, destroyed the scene of crime and partially removed the wire mesh of the window St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 103 and also the jewellery articles from the body of the deceased in order to give it colour of a robbery.

In view of my aforesaid discussion, I hereby hold the accused Aman Kumar Rastogi guilty of the offence under Sections 302/201 Indian Penal Code for which he is accordingly convicted. However, in so far as the charge under Section 376 read with 511 Indian Penal Code is concerned, it is a settled law by the Hon'ble Supreme Court that a man preparing to rape a woman cannot be charged under Section 376 Indian Penal Code and also cannot be charged with the attempt to rape under Section 511 Indian Penal Code. Therefore, under these circumstances, the offence punishable would be under Section 354 Indian Penal Code i.e. assault or use of criminal force with the intent to outrage her modesty or with the knowledge or likelihood of doing so (and not under Section 376 read with 511 Indian Penal Code) and I also hold the accused guilty of the offence under Section 354 Indian Penal Code and accordingly convicted.

Case be now listed for arguments on sentence on 19.7.2011.

Announced in the open court                                  (Dr. KAMINI LAU)
Dated: 12.7.2011                                             ASJ­II(NW)/ ROHINI


St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh                Page No. 104
     IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS 
         JUDGE­II (NW): ROHINI COURTS: DELHI

Session Case No. 1105/09
Unique Case ID No. 02404R6286

State                         Vs.             Aman Kumar Rastogi
                                              S/o Sh. Mange Lal
                                              R/o 4­D CC Block,
                                              Shalimar Bagh, Delhi
                                              (Convicted)

FIR No.:                                      544/04
Police Station:                               Shalimar Bagh
Under Section:                                302/376/201/511 IPC


Date of conviction:                           12.7.2011

Arguments heard on:                           19.7.2011/23.7.2011/4.8.2011

Date of sentence:                             9.8.2011

APPEARANCE:

Present:       Sh. Taufiq Ahmed, Addl. Public Prosecutor for the State.

Convict Aman Kumar Rastogi in judicial custody with Sh. V.K. Tomar Advocate.

ORDER ON SENTENCE:

The convict before this court is the Jeth/ brother in law of the deceased who finding his sister in law (the deceased) alone in the St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 105 house, took advantage of the situation and tried to make physical relations with her and in the process committed aggravated sexual assault on her. However, on her stiff resistance fearing exposure, he in order to shield himself brutally killed her by strangulating her. The matter did not end there and further in order to escape legal punishment and divert the course of investigations, he removed the wire mesh of the window from the room of the deceased and the jewellery from her body in order to give it a colour of robbery. However, the signs of struggle and stiff resistance put up by the deceased were evident not only on her body but also on the body of the convict which did not escape the vigilant eyes of her father who had immediately arrived at the scene of crime. The father of the deceased pointed this out to the police and raised his suspicion on the convict on which the police interrogated him at length. The convict did not call the police at the first instance and it has been revealed that during this period he had disturbed the scene of crime to make it look like a robbery. The scratch marks and bruises on his chest, the bite mark on his middle finger, the torn pocket of his shirt and the fallen button of his shirt all gave him away within hours.

The case as put up by the prosecution is that the deceased 'A' was the wife of the younger brother of the accused residing in the same house having her room on the 5th floor adjoining the room of the accused. On the intervening night of 25­26.6.2004 the accused Aman St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 106 Kumar Rastogi and deceased 'A' were the only persons who were present in the house along with the two and a half years old daughter of deceased 'A'. The parents of the accused were away to Bangalore, wife of the accused had gone to her parental house along with the children and the husband of 'A' namely Anshu Rastogi was away to Panipat for his business. Taking advantage of this situation the accused Aman Kumar Rastogi tried to commit rape upon 'A' and when she resisted the accused feeling apprehensive of being exposed before the family and society, strangulated her. Instead of calling the police the accused called up his cousin brother Rajiv Rastogi and the father of the deceased namely Mahender Muni. Further, in order to screen himself from legal punishment he caused disappearance of evidence of murder by removing the wire mesh of the window to show an outside entry and also removed the ornaments from the body of the deceased which he put under a flower pot on the terrace. After the cousin brother of the accused Rajiv Rastogi came to the spot on being called by the accused along with his brother Pradeep Rastogi, it was Pradeep who on seeing the condition of the dead body immediately informed the police on the mobile phone of Rajiv Rastogi which was after almost more than one hour of the incident. When the father of the deceased and the police arrived at the spot, the father and brother of the deceased got suspicious of the accused and pointed this out to the police. The accused was interrogated when it was also observed that St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 107 there were scratch marks and bruises on his chest and a bite mark on his middle finger which he was unable to explain. Similarly on the body of the deceased there were bite marks on her cheeks and scratches on her chest, arms, neck, legs etc. and she had also broken her tooth which tooth was found lying near her body. It was this which proved that the deceased had put a stiff resistance and struggle and the involvement of the accused was writ large as it was also notice that a button of shirt of accused and the pocket of his shirt was partially torn. This broken button was also recovered from the spot and during the trial, this button so recovered from the place of incident was tallied with the other buttons of the shirt worn by the accused at the time of the incident and was found to be matching (as per the FSL report). Further, after the accused was apprehended and interrogated at the spot itself on the arrival of the police he broke down and admitted his involvement in the offence and also made a disclosure after which he got recovered the gold jewelery i.e. one ear ring, four karas and one chain which he had removed from the body of the deceased and the screw driver with which he removed the wire mesh of the window in order to make it appear a case of an outside entry and robbery so as to screen himself from legal punishment and divert the course of investigations. Further, during the trial it was established that the bruises over the chest of the accused and bite mark on the middle finger of his left hand were indicative of the resistance St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 108 put up by the deceased and are peculiar to the resistance to a sexual assault. The medical evidence also established the bite marks present on the cheek of the deceased, bruises over her breast, forearms, shoulders, head and neck proving that the accused had committed an aggravated sexual assault on the deceased who had put a stiff resistance and struggled with the accused and thereafter fearing that he may be exposed, had killed her by strangulation.

There is no eye witness to the incident but the circumstances speak for themselves. On the basis of the medical evidence and the forensic report coupled with the subsequent conduct of the accused and the testimony of the family members of the deceased, this court, vide a detailed judgment, has held the accused Aman Kumar Rastogi guilty of the offence under Section 302, 201 and 354 Indian Penal Code and convicted him accordingly.

I have heard the arguments on the point of sentence. The Ld. Additional Public Prosecutor has argued that the present case falls under the category of Rarest of Rare and placed his reliance on the judgments of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681. He has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convict Aman St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 109 Kumar Rastogi who has committed a heinous crime against a woman of his own family who was none else but the wife of his younger brother. It is argued that keeping in view the perversity exhibited by the convict who not only committed attempted to rape the victim but in order to shield himself fearing exposure had silenced her forever by brutally strangulating her, Capital Punishment may be imposed. Ld. Additional Public Prosecutor has submitted that the convict is a potential danger to the society having no control over his sexual urges and therefore, under no circumstances should be treated with leniency. He submits that in case if this court is not satisfied that the case falls within the Rarest of Rare category then this court may consider the alternative option as the case falls in the category of Rare Case.

On the other hand, Ld. Counsel appearing on behalf of the convict has vehemently argued that the present case does not fall within the category of Rarest of Rare. It is submitted that the convict who is aged about 48 years, is the sole bread earner of his family comprising of aged parents, wife and two daughters who all are dependent upon him. Ld. Counsel has pointed out that the accused is not a previous offender and has no criminal background.

I have considered the rival contentions. The Hon'ble Mr. Justice Manmohan Sarin in the case of State Vs. Atbir & Ors. and Atbir Vs. Govt. of NCT of Delhi reported in 2006 Cri.L.J. 1802 has St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 110 culled out the law relating to principles governing the determination of sentence. It has been observed by his lordships that for the offence of murder, life sentence is the normal rule with death sentence an exception to be imposed in rarest of rare cases. The legal principle for determining whether a case warrants extreme penalty of death sentence or lesser punishment, can be conveniently culled out from among the following judgments of the Supreme Court:­

1. Bachan Singh v. State of Punjab, MANU/ SC/0111/1980:

1980 Cri.LJ 636.

2. Ediga Anamma v. State of Andhra Pradesh, 1974 (4) SC

443.

3. Machhi Singh v. State of Punjab, MANU/SC/0353/1983:

(1984) ILLJ 35 SC.

4. State of Rajasthan v. Kheraj Ram, MANU/SC/0618/2003 :

(2003) 8 SCC 224.

5. Ram Pal v. State of UP, MANU/SC/0545/2003 : 2003 Cri.L.J. 3760.

6. Amit @ Amma v. State of Maharashtra, (2003) 8 SCC 1993.

7. Sushil Murmu v. State of Jharkhand, 2004 SCC (Crl) 529.

8. Devatha Venkataswami @ Rangaiah v. Public Prosecutor, High Court of AP, MANU/SC/0685/2003 : 2003 Cri.L.J. 4332.

St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 111

In the case of Bachan Singh v. State of Punjab (supra), the court noted that it was neither practicable nor desirable to imprison the sentencing discretion of a judge or a jury in the strait­jacket of exhaustive and rigid standards. Further, it was not impossible to lay down broad guidelines as distinguished from ironcased standards which would minimise the risk of arbitrary imposition of death penalty for murder and some other offences under the penal code. Noting the provisions of Sections 354(3) and 235(2) of Cr.P.C, the court held that the extreme penalty can be inflicted only in gravest cases of extreme culpability and in making choice of the sentence, in addition to the circumstances of the offence, due regard must be paid to the circumstances of the offender also. The court noted in para 197 that pre­planned, calculated, cold blooded murder has always been regarded as one of an aggravated kind. If a murder is "diabolically conceived and cruelly executed", it would justify the imposition of the death penalty on the murderer.

In Ediga Anamma v. State of Andhra Pradesh (supra), the court observed that "The weapons used and the manner of their use, the horrendous features of the crime and hapless state of the victim, and the like, steel the heart of the law for a sterner sentence."

Further, in the case of Bachan Singh, the court also noted the "Aggravating circumstances" and "Mitigating Circumstances"

which ought to be considered for imposition of penalty of death in its St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 112 discretion which are as under:

Aggravating circumstances

(a) if the murder has been committed after previous planning and involves extreme brutality; or

(b) if the murder involves exceptional depravity; or

(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed­

(i) while such member or public servant was on duty; or

(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or

(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer after demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code.

St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 113

Mitigating circumstances

1. That the offence was committed under the influence of extreme mental or emotional disturbance.

2. The age of the accused. If the accused is young or old, he shall not be sentenced to death.

3. That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.

4. That the accused acted under the duress or domination of another person.

5. That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.

In Machi Singh v. State of Punjab (supra), the court held the following propositions for determination of rarest of rare cases which emerge from Bachan Singh's case:­

1. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.

2. When the murder is committed for a motive which evinces total depravity and meanness; e.g murder by hired assassin for money for reward or a cold blooded murder for gains of a St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 114 person vis­a­vis whom the murderer is in a dominating position or in a position or trust, or murder is committed in the course for betrayal of the motherland.

3. When murder of a member of a Scheduled Caste or minority community etc is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of "bride burning" or "dowry deaths" or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

4. When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

5. When the victim of murder is an innocent child, or helpless woman or an old or infirm person or a person vis­a­vis whom the murderer is in a dominating position or a public figure generally loved and respected by the community I may mention that Hon'ble Mr. Justice Manmohan Sarin had clarified that in so far as the conditions no. 3 and 4 as given in Bachan Singh's case, the Hon'ble Supreme Court only intended these to be enumerated as relevant considerations and factors and not conditions precedent. It does not appear plausible for the State to always lead affirmative evidence to prove that an accused does not St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 115 satisfy the probability that he would not commit criminal acts as would constitute a continuing threat to society or that the accused cannot be reformed.

Coming now to the argument of the Ld. Addl. Public Prosecutor that the present case falls within the category of Rare Cases and the alternative option in this regard can be explored. I may observe that hon'ble Mr. Justice Pradeep Nandrajog in his decision as rendered in Shree Gopal @ Mani Gopal Vs. State Crl. Appeal No. 528/09 decided on 31.8.2009 examined this facet pertaining to the sentencing procedure i.e of consideration of alternative options while referring to the decision of Hon'ble Supreme Court of India as rendered in the case Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra, JT 2009 (7) SC 249. Further, Hon'ble Mr. Justice Nandrajog also considered the various alternatives available to him in the light of Section 433 Cr.P.C. and Section 433A Cr.P.C. regarding the meaning of the sentence for imprisonment for life and the power of the executive to grant remission but, not before a period of 14 years of imprisonment. He also referred to various other decisions of Hon'ble Supreme Court of India while classifying the sentence of imprisonment in two categories i.e the ordinary category whereby the court leaves the exercise of executive power at the discretion of the executive, to be so exercised after 14 years of St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 116 imprisonment and grant remission; and a higher category, where the Court, in a Rare Case, but not the Rarest of the Rare, would clip the said benefit being extended to the convict by directing that the convict shall undergo an actual sentence for a higher period or even for the remainder of his life. Such kind of cases can be put in the category of Rare Cases with appropriate direction of not being entitled to the benefit of remission till a fixed term of imprisonment is undergone. Some of the decisions, noted in this regard by the Hon'ble Judge were Swami Shraddhanand Vs. State of Karnataka reported in AIR 2007 (SC) 2531 in paras 60 to 63 of the said decision i.e the decisions reported as Shri Bhagwan Vs. State of Rajasthan reported in 2001 (6) SCC 296, Parkash Dhawal Khairnar (Patil) Vs. State of Maharashtra reported in 2002 (2) SCC 35, Ram Anoop Singh Vs. State of Bihar reported in 2002 (6) SCC 686 and Mohd. Munna Vs. Union of India reported in 2005 (7) SCC 417. The convict in the said case was thus sentenced to imprisonment for life with a direction that he will not be considered for being grant of remission till he undergoes an actual sentence of 20 years.

In the case of Shree Gopal @ Mani Gopal Vs. State (Supra) under similar circumstances, the Delhi High Court has Ruled against Capital Punishment but at the same time has held it to be a Rare Case thereby sentencing the convict to life with the condition St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 117 that he shall not be entitled to any remission till he has undergone an actual imprisonment for 20 years.

Now applying the settled principles of law to the facts of the present case, it is evident that the various aggravating circumstances are that the convict is a mature man of 38 years and was the elder brother in law/ Jeth of the deceased. He finding her alone at home set his evil eyes upon the wife of his younger brother and taking advantage of the situation tried to commit rape upon her and sexually assaulted her. However, when the deceased put up a stiff resistance, he lost control over himself and brutally killed her by strangulating her. The multiple injuries present on the body of the deceased speaks volumes of the struggle and resistance offered by the deceased and the pain that the deceased must have undergone before she died. The convict has destroyed and ruined the entire family of his younger brother whose wife he has brutally killed and whose infant child was rendered motherless at the age of two and a half years. The convict has exploited the faith and trust reposed in him by his family be sexually assaulting the woman of his own family and brutally killed her when she resisted to his illegitimate act.

The only mitigating factor on the other hand being that the convict has no previous criminal record and has two young daughters being the sole bread earner of his family.

I may observe that the proportion between the crime and St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 118 punishment is a goal respected in principle and it remains a strong influence in the determination of sentences. Undue sympathy to impose inadequate sentence can do more harm to the justice system to undermine the public confidence in the efficacy of law. Society cannot long endure under such serious threats and hence, the duty of the court is to award proper sentence having regards to the nature of the offence. Friedman in his book "Law in Changing Society" had observed that, State of criminal law continues to be as it should be a decisive reflection of social unconsciousness of society and therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. Therefore, under the given circumstances I hereby hold that by deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be and any undue sympathy to impose inadequate sentence in the present case can be misplaced. The convict before this court deserves no mercy.

No doubt the case in hand would not fall within the category of Rarest of Rare but it certainly falls within the category of Rare Cases calling for consideration of alternative options as laid down in the cases of Swami Shraddhanand Vs. State of Karnataka reported in AIR 2007 (SC) 2531 and in the case of Shree Gopal @ Mani Gopal Vs. State Crl. Appeal No. 528/09 decided on St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 119 31.8.2009.

I, therefore, award the following sentences to the convict Aman Kumar Rastogi:

1. The convict is sentenced to Rigorous Imprisonment for life with the direction that he shall not be considered for grant of remission till he undergoes an actual sentence of Twenty Five (25) years and fine for a sum of Rs.1,00,000/­ (Rs. One Lac) for the offence under Section 302 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One Year. The total fine of Rs.

1,00,000/­ (Rs.One Lac), if recovered, shall be paid to the infant/ child of the deceased as compensation under Section 357 Cr.P.C. in the form of an FDR to remain in her name till she attains the age of 18 years and in case if the amount is to be used before she attains the age of 18 years, then it can be done after due permission from the court.

2. I also sentence the convict to Rigorous Imprisonment for a period of Four Years and fine to the tune of Rs.2,000/­ for the offence under Section 201 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one week.

St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 120

3. The convict is also sentenced to Rigorous Imprisonment for a period of Two Years for the offence under Section 354 Indian Penal Code.

All the sentences shall run concurrently. Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him during the trial, as per rules.

The convict has been informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34­37, Lawyers Chamber Block, High Court of Delhi, New Delhi.

Copy of the judgment and order of sentence be given to the convict free of costs and another be attached with his jail warrants.

File be consigned to Record Room.

Announced in the open court                                    (Dr. KAMINI LAU)
Dated: 9.8.2011                                               ASJ­II(NW)/ ROHINI




St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh                Page No. 121
     IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS 
         JUDGE­II (NW): ROHINI COURTS: DELHI

Session Case No. 1105/09
Unique Case ID No. 02404R6286

State                         Vs.             Aman Kumar Rastogi
                                              S/o Sh. Mange Lal
                                              R/o 4­D CC Block,
                                              Shalimar Bagh, Delhi
                                              (Convicted)

FIR No.:                                      544/04
Police Station:                               Shalimar Bagh
Under Section:                                302/376/201/511 IPC


Date of conviction:                           12.7.2011

Arguments heard on:                           19.7.2011/23.7.2011/4.8.2011

Date of sentence:                             9.8.2011



APPEARANCE:

Present:       Sh. Taufiq Ahmed, Addl. Public Prosecutor for the State.

Convict Aman Kumar Rastogi in judicial custody with Sh. V.K. Tomar Advocate.

ORDER ON SENTENCE:

The convict before this court is the Jeth/ brother in law of the deceased who finding his sister in law (the deceased) St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 122 alone in the house, took advantage of the situation and tried to make physical relations with her and in the process committed aggravated sexual assault on her. However, on her stiff resistance fearing exposure, he in order to shield himself brutally killed her by strangulating her. The matter did not end there and further in order to escape legal punishment and divert the course of investigations, he removed the wire mesh of the window from the room of the deceased and the jewellery from her body in order to give it a colour of robbery. However, the signs of struggle and stiff resistance put up by the deceased were evident not only on her body but also on the body of the convict which did not escape the vigilant eyes of her father who had immediately arrived at the scene of crime. The father of the deceased pointed this out to the police and raised his suspicion on the convict on which the police interrogated him at length. The convict did not call the police at the first instance and it has been revealed that during this period he had disturbed the scene of crime to make it look like a robbery. The scratch marks and bruises on his chest, the bite mark on his middle finger, the torn pocket of his shirt and the fallen button of his shirt all gave him away within hours.

The case as put up by the prosecution is that the deceased 'A' was the wife of the younger brother of the accused residing in the same house having her room on the 5th floor adjoining the room of the accused. On the intervening night of 25­26.6.2004 the accused Aman St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 123 Kumar Rastogi and deceased 'A' were the only persons who were present in the house along with the two and a half years old daughter of deceased 'A'. The parents of the accused were away to Bangalore, wife of the accused had gone to her parental house along with the children and the husband of 'A' namely Anshu Rastogi was away to Panipat for his business. Taking advantage of this situation the accused Aman Kumar Rastogi tried to commit rape upon 'A' and when she resisted the accused feeling apprehensive of being exposed before the family and society, strangulated her. Instead of calling the police the accused called up his cousin brother Rajiv Rastogi and the father of the deceased namely Mahender Muni. Further, in order to screen himself from legal punishment he caused disappearance of evidence of murder by removing the wire mesh of the window to show an outside entry and also removed the ornaments from the body of the deceased which he put under a flower pot on the terrace. After the cousin brother of the accused Rajiv Rastogi came to the spot on being called by the accused along with his brother Pradeep Rastogi, it was Pradeep who on seeing the condition of the dead body immediately informed the police on the mobile phone of Rajiv Rastogi which was after almost more than one hour of the incident. When the father of the deceased and the police arrived at the spot, the father and brother of the deceased got suspicious of the accused and pointed this out to the police. The accused was interrogated when it was also observed that St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 124 there were scratch marks and bruises on his chest and a bite mark on his middle finger which he was unable to explain. Similarly on the body of the deceased there were bite marks on her cheeks and scratches on her chest, arms, neck, legs etc. and she had also broken her tooth which tooth was found lying near her body. It was this which proved that the deceased had put a stiff resistance and struggle and the involvement of the accused was writ large as it was also notice that a button of shirt of accused and the pocket of his shirt was partially torn. This broken button was also recovered from the spot and during the trial, this button so recovered from the place of incident was tallied with the other buttons of the shirt worn by the accused at the time of the incident and was found to be matching (as per the FSL report). Further, after the accused was apprehended and interrogated at the spot itself on the arrival of the police he broke down and admitted his involvement in the offence and also made a disclosure after which he got recovered the gold jewelery i.e. one ear ring, four karas and one chain which he had removed from the body of the deceased and the screw driver with which he removed the wire mesh of the window in order to make it appear a case of an outside entry and robbery so as to screen himself from legal punishment and divert the course of investigations. Further, during the trial it was established that the bruises over the chest of the accused and bite mark on the middle finger of his left hand were indicative of the resistance St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 125 put up by the deceased and are peculiar to the resistance to a sexual assault. The medical evidence also established the bite marks present on the cheek of the deceased, bruises over her breast, forearms, shoulders, head and neck proving that the accused had committed an aggravated sexual assault on the deceased who had put a stiff resistance and struggled with the accused and thereafter fearing that he may be exposed, had killed her by strangulation.

There is no eye witness to the incident but the circumstances speak for themselves. On the basis of the medical evidence and the forensic report coupled with the subsequent conduct of the accused and the testimony of the family members of the deceased, this court, vide a detailed judgment, has held the accused Aman Kumar Rastogi guilty of the offence under Section 302, 201 and 354 Indian Penal Code and convicted him accordingly.

I have heard the arguments on the point of sentence. The Ld. Additional Public Prosecutor has argued that the present case falls under the category of Rarest of Rare and placed his reliance on the judgments of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681. He has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convict Aman St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 126 Kumar Rastogi who has committed a heinous crime against a woman of his own family who was none else but the wife of his younger brother. It is argued that keeping in view the perversity exhibited by the convict who not only committed attempted to rape the victim but in order to shield himself fearing exposure had silenced her forever by brutally strangulating her, Capital Punishment may be imposed. Ld. Additional Public Prosecutor has submitted that the convict is a potential danger to the society having no control over his sexual urges and therefore, under no circumstances should be treated with leniency. He submits that in case if this court is not satisfied that the case falls within the Rarest of Rare category then this court may consider the alternative option as the case falls in the category of Rare Case.

On the other hand, Ld. Counsel appearing on behalf of the convict has vehemently argued that the present case does not fall within the category of Rarest of Rare. It is submitted that the convict who is aged about 48 years, is the sole bread earner of his family comprising of aged parents, wife and two daughters who all are dependent upon him. Ld. Counsel has pointed out that the accused is not a previous offender and has no criminal background.

I have considered the rival contentions. The Hon'ble Mr. Justice Manmohan Sarin in the case of State Vs. Atbir & Ors. and Atbir Vs. Govt. of NCT of Delhi reported in 2006 Cri.L.J. 1802 has St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 127 culled out the law relating to principles governing the determination of sentence. It has been observed by his lordships that for the offence of murder, life sentence is the normal rule with death sentence an exception to be imposed in rarest of rare cases. The legal principle for determining whether a case warrants extreme penalty of death sentence or lesser punishment, can be conveniently culled out from among the following judgments of the Supreme Court:­

1. Bachan Singh v. State of Punjab, MANU/ SC/0111/1980:

1980 Cri.LJ 636.

2. Ediga Anamma v. State of Andhra Pradesh, 1974 (4) SC

443.

3. Machhi Singh v. State of Punjab, MANU/SC/0353/1983:

(1984) ILLJ 35 SC.

4. State of Rajasthan v. Kheraj Ram, MANU/SC/0618/2003 :

(2003) 8 SCC 224.

5. Ram Pal v. State of UP, MANU/SC/0545/2003 : 2003 Cri.L.J. 3760.

6. Amit @ Amma v. State of Maharashtra, (2003) 8 SCC 1993.

7. Sushil Murmu v. State of Jharkhand, 2004 SCC (Crl) 529.

8. Devatha Venkataswami @ Rangaiah v. Public Prosecutor, High Court of AP, MANU/SC/0685/2003 : 2003 Cri.L.J. 4332.

St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 128

In the case of Bachan Singh v. State of Punjab (supra), the court noted that it was neither practicable nor desirable to imprison the sentencing discretion of a judge or a jury in the strait­jacket of exhaustive and rigid standards. Further, it was not impossible to lay down broad guidelines as distinguished from ironcased standards which would minimise the risk of arbitrary imposition of death penalty for murder and some other offences under the penal code. Noting the provisions of Sections 354(3) and 235(2) of Cr.P.C, the court held that the extreme penalty can be inflicted only in gravest cases of extreme culpability and in making choice of the sentence, in addition to the circumstances of the offence, due regard must be paid to the circumstances of the offender also. The court noted in para 197 that pre­planned, calculated, cold blooded murder has always been regarded as one of an aggravated kind. If a murder is "diabolically conceived and cruelly executed", it would justify the imposition of the death penalty on the murderer.

In Ediga Anamma v. State of Andhra Pradesh (supra), the court observed that "The weapons used and the manner of their use, the horrendous features of the crime and hapless state of the victim, and the like, steel the heart of the law for a sterner sentence."

Further, in the case of Bachan Singh, the court also noted the "Aggravating circumstances" and "Mitigating Circumstances"

which ought to be considered for imposition of penalty of death in its St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 129 discretion which are as under:

Aggravating circumstances

(a) if the murder has been committed after previous planning and involves extreme brutality; or

(b) if the murder involves exceptional depravity; or

(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed­

(i) while such member or public servant was on duty; or

(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or

(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer after demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code.

St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 130

Mitigating circumstances

1. That the offence was committed under the influence of extreme mental or emotional disturbance.

2. The age of the accused. If the accused is young or old, he shall not be sentenced to death.

3. That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.

4. That the accused acted under the duress or domination of another person.

5. That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.

In Machi Singh v. State of Punjab (supra), the court held the following propositions for determination of rarest of rare cases which emerge from Bachan Singh's case:­

1. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.

2. When the murder is committed for a motive which evinces total depravity and meanness; e.g murder by hired assassin for money for reward or a cold blooded murder for gains of a St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 131 person vis­a­vis whom the murderer is in a dominating position or in a position or trust, or murder is committed in the course for betrayal of the motherland.

3. When murder of a member of a Scheduled Caste or minority community etc is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of "bride burning" or "dowry deaths" or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

4. When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

5. When the victim of murder is an innocent child, or helpless woman or an old or infirm person or a person vis­a­vis whom the murderer is in a dominating position or a public figure generally loved and respected by the community I may mention that Hon'ble Mr. Justice Manmohan Sarin had clarified that in so far as the conditions no. 3 and 4 as given in Bachan Singh's case, the Hon'ble Supreme Court only intended these to be enumerated as relevant considerations and factors and not conditions precedent. It does not appear plausible for the State to always lead affirmative evidence to prove that an accused does not St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 132 satisfy the probability that he would not commit criminal acts as would constitute a continuing threat to society or that the accused cannot be reformed.

Coming now to the argument of the Ld. Addl. Public Prosecutor that the present case falls within the category of Rare Cases and the alternative option in this regard can be explored. I may observe that hon'ble Mr. Justice Pradeep Nandrajog in his decision as rendered in Shree Gopal @ Mani Gopal Vs. State Crl. Appeal No. 528/09 decided on 31.8.2009 examined this facet pertaining to the sentencing procedure i.e of consideration of alternative options while referring to the decision of Hon'ble Supreme Court of India as rendered in the case Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra, JT 2009 (7) SC 249. Further, Hon'ble Mr. Justice Nandrajog also considered the various alternatives available to him in the light of Section 433 Cr.P.C. and Section 433A Cr.P.C. regarding the meaning of the sentence for imprisonment for life and the power of the executive to grant remission but, not before a period of 14 years of imprisonment. He also referred to various other decisions of Hon'ble Supreme Court of India while classifying the sentence of imprisonment in two categories i.e the ordinary category whereby the court leaves the exercise of executive power at the discretion of the executive, to be so exercised after 14 years of St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 133 imprisonment and grant remission; and a higher category, where the Court, in a Rare Case, but not the Rarest of the Rare, would clip the said benefit being extended to the convict by directing that the convict shall undergo an actual sentence for a higher period or even for the remainder of his life. Such kind of cases can be put in the category of Rare Cases with appropriate direction of not being entitled to the benefit of remission till a fixed term of imprisonment is undergone. Some of the decisions, noted in this regard by the Hon'ble Judge were Swami Shraddhanand Vs. State of Karnataka reported in AIR 2007 (SC) 2531 in paras 60 to 63 of the said decision i.e the decisions reported as Shri Bhagwan Vs. State of Rajasthan reported in 2001 (6) SCC 296, Parkash Dhawal Khairnar (Patil) Vs. State of Maharashtra reported in 2002 (2) SCC 35, Ram Anoop Singh Vs. State of Bihar reported in 2002 (6) SCC 686 and Mohd. Munna Vs. Union of India reported in 2005 (7) SCC 417. The convict in the said case was thus sentenced to imprisonment for life with a direction that he will not be considered for being grant of remission till he undergoes an actual sentence of 20 years.

In the case of Shree Gopal @ Mani Gopal Vs. State (Supra) under similar circumstances, the Delhi High Court has Ruled against Capital Punishment but at the same time has held it to be a Rare Case thereby sentencing the convict to life with the condition St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 134 that he shall not be entitled to any remission till he has undergone an actual imprisonment for 20 years.

Now applying the settled principles of law to the facts of the present case, it is evident that the various aggravating circumstances are that the convict is a mature man of 38 years and was the elder brother in law/ Jeth of the deceased. He finding her alone at home set his evil eyes upon the wife of his younger brother and taking advantage of the situation tried to commit rape upon her and sexually assaulted her. However, when the deceased put up a stiff resistance, he lost control over himself and brutally killed her by strangulating her. The multiple injuries present on the body of the deceased speaks volumes of the struggle and resistance offered by the deceased and the pain that the deceased must have undergone before she died. The convict has destroyed and ruined the entire family of his younger brother whose wife he has brutally killed and whose infant child was rendered motherless at the age of two and a half years. The convict has exploited the faith and trust reposed in him by his family be sexually assaulting the woman of his own family and brutally killed her when she resisted to his illegitimate act.

The only mitigating factor on the other hand being that the convict has no previous criminal record and has two young daughters being the sole bread earner of his family.

St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 135

I may observe that the proportion between the crime and punishment is a goal respected in principle and it remains a strong influence in the determination of sentences. Undue sympathy to impose inadequate sentence can do more harm to the justice system to undermine the public confidence in the efficacy of law. Society cannot long endure under such serious threats and hence, the duty of the court is to award proper sentence having regards to the nature of the offence. Friedman in his book "Law in Changing Society" had observed that, State of criminal law continues to be as it should be a decisive reflection of social unconsciousness of society and therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. Therefore, under the given circumstances I hereby hold that by deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be and any undue sympathy to impose inadequate sentence in the present case can be misplaced. The convict before this court deserves no mercy.

No doubt the case in hand would not fall within the category of Rarest of Rare but it certainly falls within the category of Rare Cases calling for consideration of alternative options as laid down in the cases of Swami Shraddhanand Vs. State of Karnataka reported in AIR 2007 (SC) 2531 and in the case of Shree Gopal @ St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 136 Mani Gopal Vs. State Crl. Appeal No. 528/09 decided on 31.8.2009.

I, therefore, award the following sentences to the convict Aman Kumar Rastogi:

1. The convict is sentenced to Rigorous Imprisonment for life with the direction that he shall not be considered for grant of remission till he undergoes an actual sentence of Twenty Five (25) years and fine for a sum of Rs.1,00,000/­ (Rs. One Lac) for the offence under Section 302 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One Year. The total fine of Rs.

1,00,000/­ (Rs.One Lac), if recovered, shall be paid to the infant/ child of the deceased as compensation under Section 357 Cr.P.C. in the form of an FDR to remain in her name till she attains the age of 18 years and in case if the amount is to be used before she attains the age of 18 years, then it can be done after due permission from the court.

2. I also sentence the convict to Rigorous Imprisonment for a period of Four Years and fine to the tune of Rs.2,000/­ for the offence under Section 201 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one week.

St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh Page No. 137

3. The convict is also sentenced to Rigorous Imprisonment for a period of Two Years for the offence under Section 354 Indian Penal Code.

All the sentences shall run concurrently. Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him during the trial, as per rules.

The convict has been informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34­37, Lawyers Chamber Block, High Court of Delhi, New Delhi.

Copy of the judgment and order of sentence be given to the convict free of costs and another be attached with his jail warrants.

File be consigned to Record Room.

Announced in the open court                                    (Dr. KAMINI LAU)
Dated: 9.8.2011                                              ASJ­II(NW)/ ROHINI




St. Vs. Aman Kumar Rastogi, FIR No. 544/04, PS Shalimar Bagh                Page No. 138