Delhi District Court
State vs Ameeruddin @ Ameera S/O Sh Shahid ... on 30 May, 2009
1
IN THE COURT OF SH. ATUL KUMAR GARG, LD. ADDL.SESSIONS
JUDGE DELHI
Sessions Case No. 21/09
DATE OF INSTITUTION:- 3.2.2009
DATE OF RESERVE FOR ORDER 23.5.09
DATE OF DECISION 30.5.09
State Vs Ameeruddin @ Ameera s/o Sh Shahid Hussain.
R/o Village Malika Danga, PS Islampur, Distt. Uttar Dinaz Pur (
West Bengal)
FIR No. 195/06
P.S. VIVEK VIHAR
U/s 302/382/411 IPC
JUDGMENT
Standards of proof to convict a person on circumstantial evidence has been couched by the Apex Court in the proposition that the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Those circumstances should be of definite tendency unerringly pointing towards the guilt of the accused, when taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probabilities the crime was committed by the accused and none else, and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that 2 of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. It needs no reminder that legally established circumstances and not merely anguish of the court can form basis of conviction and more serious the crime the greater should be the care taken to scrutinize the evidence, least suspicion takes place of proof.
Whether the prosecution could establish a complete chain of evidence which is conclusive in nature and consistent with the hypothesis of guilt of the accused and inconsistent with his innocence? For an answer facts gain importance.
As borne out of the report under section 173 of the Code of Criminal Procedure 1973 (in short the Code), the accused Ameerrudin was staying in house no. 504/12, Circular road, Jwala nagar, Shahdara alongwith Bhagwati Devi aged about 75 yrs . Accused was a labourer and he had committed murder of Bhagwati Devi by stragulation. On the statement of one Subhash chander s/o deceased, this FIR was got registered. Subhash chander has stated to the police that at about 5.30 am in the morning his servant had come to him and told that Amma was not awakening . When they had reached at the room of his mother, they found marks on both sides of neck of Amma. He had expressed his doubt over his servant by stating that his servant did not come usually by 7.00am. Police sent the body to the hospital for 3 autopsy. After receiving the report of the postmortem police had got registered the case u/s 302 IPC. Accused was arrested after completing investigation. Police had filed the charge sheet u/s 302/381/411 IPC against the accused.
After hearing the state as well as accused, accused was charged u/s 302/404/411 IPC to which he pleaded not guilty and claimed trial.
Prosecution has relied upon 14 witnesses namely Subhash Chand as PW-1, Tilak Raj as PW-2, Smt. Rajni Bala as PW-3, Ct. Satya Prakash as PW-4, , Islammuddin as PW-5, Dr. Ashok Jaiswal PW-6, Mohd Rahi as PW-7, Ct. Sonu kaushik as PW-8, Ct. Hari Babu as PW-9, ASI Charan singh as PW-10, HC Kunwar Pal as PW-11, Ct. Shaji as PW-12, Ct. Prem Vir Singh as PW-13, and Insp. Jagjit Sangwan as PW-14.
In order to substantiate the charge, prosecution in fact has examined all the witnesses. PW-1 is son of the deceased. PW-3 is the wife of PW-1, and daughter in law of deceased. PW-5 Islammuddin in whose presence the police has recorded the confessional statement of Ameerrudin. PW-7 Mohd Rahi is the person who was also staying alongwith accused in the room adjoining to the deceased. PW-6 Dr Ashok Jaiswal . he had conducted the postmortem examination on the body of Bhagwati Devi and proved his report. PW-8 Ct. Sonu kaushik. 4 He has prepared site plan EWXPW8/A. PW-9 is Ct. Hari Babu, who was entrusted with copy of FIR and given copy of FIR to the DCP concerned. PW-10 to 14 are the police officials.
In order to explain the circumstances, entire incriminating evidence has been put before the accused to which he pleaded his innocence and submitted that he has been falsely implicated but he did not examine any witness in defence.
Whole of the prosecution case rests upon the circumstantial evidence. Nobody had seen the accused strangulating the deceased. Police heavily relied upon the evidence of PW-1 as well as evidence of PW-7 Mohd. Rahi. PW-1 in his evidence deposed that on 15.5.06 at about 5.30pm his servant who used to reside in his house and tried to woke up and he had told Amma was not moving. He alongwith his wife rushed outside his room to see his mother who was sleeping in other portion of the said house in a room. He had seen his mother in the dead condition and she was having scar marks on her neck and on face. He informed his elder brothers who were residing infront of his house through his daughter. Thereafter, both his brothers and Bhabhi immediately came there. During the night of 14/15.5.2006 there was storm in the night and he presumed that his mother had fallen and received some injuries. He asked Ameerrudin that how it was happened and he informed him that he did not know anything. He got suspicion 5 upon the accused as he came in his room to woke up in the early hours in the morning. He usually woke up not before 7.00am . His wife tried to check out the articles of his mother including money which she was possessing. He found that one small theili was missing which she used to keep the money in the same. He deposed that police was called and firstly police recorded his statement vide Ex.PW1/A. He identified his signature. He also identified the photographs mark A-1 to mark A-6. The accused was taken into custody by the police. Arrest memo of accused is Ex. PW1/B. He also deposed that accused got recovered amount of Rs. 1240/- along with bag. He deposed that he had made another statement to the police on 2.8.2006 and informed the police that one day prior to death of his mother, she was served dinner with rice and dal at 8.30pm and thereafter he along with his children went to ride in the metro at about 10.30/10.45pm. When he returned back at his house and talked to his mother and she told that she was given excessive food. She also told him that extra food was given by Ameeruddin to her.
Other witness who had seen the deceased alive before her death is PW-7 Mohd. Rahi. He has stated that he knew accused Ameeruddin accused present in the court today. This person had come only 4/5 days before and started living in the room of the accused. He submitted that in the night of 14-15.5.06, there was storm 6 and Amma had awaken them and he took his beddings inside his room and helped amma to remove his cot in the room and Ameerruddin slept in the room where Amma was sleeping. At about 5.30 am Ameeruddin awaken him and told that " Amma ka kam tamam kar diya". This witness has not only seen the deceased alive lastly but also witnessed the fact that accused has given Extra Judicial Confession to him at 5.30A.M., where he had admitted that he had finished the Amma by saying that "Amma ka kam tamam kar diya".
It is PW-6 Dr. Ashok Jaiswal who had conducted the autopsy of the deceased Bhagwati Devi, 75 Yrs female w/o Late Sh Kalu Ram. He has deposed that body was sent by ASI Charan Singh with alleged history of found dead on 15.5.06. Body was wearing a white blouse and a white petticoat. Clothes were intact, no tear, cut or blood seen on them. The clothes however got stained from secretions of autopsy table. Body was thin built. 5 feet 2 inch. Rigor mortise all over except pressure points, conjunctiva congested with sub conjunctival petechae in Palpebral Conjunctiva in both eyes. Nails were bluish. He found following external injuries on the body.
1. Reddish bruise below left eye. 1 inch x ¼ inch.
2. Reddish bruise on left malar region 1 inch x ½ inch and lateral to left eye of ¾ inch x ½ inch.
3. Four vertically to obliquely placed linear abrasions with bruised 7 margins placed one below the other on left side of neck below angle of mandible of sizes 2 cm x o.5 cs, 2.2 cms x 0.5 cms, 1.5 cms x 3 and 1 cm x 2 mm. All reddish in colour
4. Almost transversely placed irregular diffuse pinkish bruise 7 cm x 1 .5-2 cm going from left side of neck next to injury No.3, going across thyroid prominence to right side neck below angle of mandible.
5. Oval shape bruise pinkish in colour 3 cm x 1.5 cm just below angle of mandible on right side.
6. Crust fallen brownish abrasion on left frontal eminence 1 inch x ¾ inch.
7. Postmortem grazed abrasion obliquely placed in front of mid chest 2 inch x ¼ inch, devoid of any blood clot or bruising.
8. No other external injury was seen on the body.
He had opined that injury no.3,4 and 5 were suggestive of application of pressure over neck structure ( manual strangulation).
Besides the above said evidence, prosecution has examined Sh Tilak Raj as PW-2. He is another son of the deceased. Ms Rajni Bala PW-3 is the wife of PW-1 and daughter -in- law of the deceased. Ct. Satya Prakash and Islammuddin. Islammuddin is the person who had taken change from Amma of Rs. 500/- only a day before. Other witness are the Ct. Sonu Kaushik who had prepared site plan EXPW8/A after taking measurement. PW-9 Ct Hari Babu sent the 8 copy of FIR to senior police officials and concerned MM. PW-10 is ASI Charan Singh. He has deposed that he had reached after receipt of DD no. 10 A alongwith Ct. Premvir and went to 504/12 circular road . One lady was lying on ground having red colour spots on her body whose name was revealed as Bhagwati Devi w/o Kalu and he had recorded the statement of Subhash EXPW1/A. He deposed that proceedings u/s174 CrPC was conducted by him i.e filled up 2535 form EXPW10/A, recorded statement of Subhash chand and Tilak Raj EXPW1/F and EXPW10/B in respect of identification of body of deceased Bhagwati Devi. Postmortem on the Dead body was conducted at Mortuary Subzi mandi . He has proved the application EXPW10/C . postmortem was got conducted. After postmortem dead body was handed over to her relatives in lieu of receipt EXPW1/G. He had taken possession of the clothes of deceased duly sealed with seal of hospital with sample seal vide EXPW10/D. He has collected postmortem report. From mortuary he came back to PS alongwith Ct. Premvir. He has deposed that inquest papers were got produced before SHO and the SHO got the case registered on the statement of Subhash which was duly endorsed vide EXPW10/E. SHO Prepared the site plan and made inquiries from the wife of subhash, Tilak Ram and Mohd Rahi. As per inquiry from the above said witnesses, accused was arrested in this case. He was interrogated vide EXPW1/D bearing his signature at pt X. 9 as per disclosure statement, he has got one small theli from his room and he disclosed that after committing the murder of deceased, he kept the same in his room. The said theli was seized sealed with seal of JS and same was taken into possession vide EXPW1/E. PW-11 Ct. Kunwar Pal PS Gandhi Nagar. He was the duty officer in PS Gandhi Nagar. He has proved the copy of FIR as EXPW11/A.PW-12 is Ct. Shaji T.A. He was handed over the copy of FIR as well as rukka of this case. He has taken the same to the place of incident. PW-13 is ct. Premvir Singh. He has deposed that on 15.5.06 he was posted as constable in PS Vivek vihar. On that day, on receipt of DD No. 10 A he alongwith ASI Charan singh reached at house no. 504/12, Circular road Jwala Nagar there were many persons gathered there. He has made inquiries. PW-14 is Inspector Jagjit Sangwan. He has also narrated the fact of the investigation done by him.
By these evidences, prosecution tried to prove that the accused had committed murder of Bhagwati Devi by manual strangulation. Prosecution had relied upon the testimony of PW-1 Subhash who had lastly seen the deceased alive at about 10.30 pm when he came back after metro ride. Further he had relied upon the testimony of Mohd Rahi who had seen the deceased alive after storm . Prosecution further relied upon the Extra Judicial confession made by the accused to Mohd Rahi that he has finished Amma by saying that 10 "Amma ka kam tamam kar diya". The motive of the murder of deceased has been given by the prosecution that there was some murmuring between Amma and Ameeruddin and accused Ameerrudin got annoyed over the overture made by the deceased. Ld. APP has argued that from the available evidence it is proved beyond doubt that it is the accused who had committed murder of the deceased by manual strangulation.
On the other hand, counsel of the accused Shri Dasa Ram had argued that the prosecution had failed to bring home the guilt of accused. Circumstances as narrated by the prosecution is not complete as to prove guilt of the accused leaving no doubt about the fact that accused had only committed the murder . He has stated that even Mohd. Rahi had made a lot of improvement in the statement made before this court in comparison to the statement given by him to the police. He has stated here that accused after shifting the cot of the deceased in her room had slept in the room of the deceased while in the statement made to the police, he has stated that it the accused who had slept in his room after shifting the cot of the deceased after storm in the night of 14/15.5.06.
So far so Extra Judicial Confession is concerned, Ld. counsel further stated that testimony in this regard of PW-7 cannot be 11 relied upon because he was silent all over the day. He did not disclose the fact even to the PW-1 that the accused had ever made disclosure statement before him. Moreover PW-7 , as per prosecution story, has stayed in the room only for the last 5-6 days and it is so mentioned by PW-1. Moreover, he had stated that recovery of the amount from the possession of accused at the instance of accused is also doubtful because all the PW's i.e PW-1 to 3 had stated that recovery was effected from beneath of bichona at about 9 am in the morning while story projected by the prosecution is that after registration of FIR accused got recovered the amount . Even PW-10 ASI Charan Singh had stated that it is the accused who had brought the theli. Therefore, the contradictory stand taken by the witnesses raised shadow of doubt over the fact that ever any recovery has been made at the instance of the accused.
I have heard the arguments on behalf of the prosecution as well as defence. It is settled law that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of evidence 12 must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof.
Since the present case is based on the circumstantial evidence, this court has to see whether evidence relied by the prosecution can be believed. It is admitted fact here that accused has been residing as servant in the house of the deceased for the last 3-4 years. Mohd Rahi another labourer / servant started living only for the last 7-8 yrs before the death of the deceased. It is also admitted position that it is the accused who had apprised PW-1 Subhash in whose house deceased was living about the condition of the deceased. Accused remained present all over the day . Suspicion only had been arise when people had been assembed there and the mark have been seen over the body. Only the postmortem report confirms that the death had been caused due to manual strangulation.
From the report of Dr. PW-6 death was due to pressure over neck structure. It is admitted position that finger imprints were not taken on the body of the deceased. Postmortem was got conducted within 12 years. Time since death was opined by the Doctor 13 as 12 hours. Postmortem was conducted at about 12.30pm. Probably the death has been occurred at around 12.00night.
In the present case, it is admitted fact that gates of the room of deceased was opened and was not locked. Earlier the deceased, accused and PW-7 were sleeping in front of rooms. Deceased was sleeping at the cot while remaining two were sleeping on the rodi. The son and daughter in law were sleeping at the back portion.
Everybody has the access of the room of the deceased. PW-1 has admitted that he did not recollect whether the police came to house after 6.00pm. He did not recollect whether they were called by the police at PS. He did not recollect that the recovery was affected at the instance of the accused at the day hours. The witness was not aware whether recovery was affected before removing the dead body and at what time. PW-2 Tilak Raj is another son of the deceased who deposed that suspicion arose over the accused when money of his mother was found missing. According to him, accused was taken to PS by the police after 9.00am. He further deposed that the fact was disclosed to him by one boy who used to reside with Ammerrudin that he has finished his mother. He deposed that police did not obtain his signature on any document at his house.
Same is the testimony of PW-3. She is daughter in law of the 14 deceased. She deposed that she checked the pocket of her mother in law and found theli containing some money was missing. She informed her husband about the aforesaid theft. He asked Ameeruddin about the same. Ameeruddin did not reply and thereafter her husband called the police by dialling at 100 number. Police searched the bag of the accused and recovered the said theli. She admitted that police did not recover anything from the house in my presence.
PW-5 is Islammuddin who had stated that he had taken the change of Rs. 500/- from Amma at the previous date, had denied that he had stated to the police that accused has stolen money from Amma. Islammuddin had stated that police obtained his signature on his statement. Police did not read over contents of each memo prepared at the spot. Witness further admitted that on that day he did not meet the police at the house of Subhash from 11.00am to night. PW-7 had also admitted that police did not conduct search of the accused where dead body of Amma was lying. Police did not conduct the search of room where he slept in the night.
It is well established law that in the cases based on circumstantial evidence, the existence of the motive assumes significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise establish by the conclusive circumstances and chain of circumstantial evidence is 15 so complete and is consistence only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
From analysing the evidence, chain is not appeared to be completed because firstly there was the access of the room of the deceased by everyone residing in the house. In the present case, motive as suggested by the prosecution has not been proved. The murmuring or some overture cannot be said to be the motive for killing Amma, while the accused was living as labours for the last three or four year. Accused is not the bonded labour. He can easily search the job. The recovery of amount also becomes doubtful from the personal search memo Ex PW1/C. It is the prosecution case that an amount of 220/- was recovered. The amount of Rs. 1240/- is not too big to be said to be cause of murder particularly when the accused was present there. According to the prosecution thaili was lying beneath the bichona and recovered at the instance of accused. Recovery was not affected in the presence of PW-3. All the Pws have stated that the recovery was affected at 9./0.30am while the prosecution case stands otherwise. Even PW-10` ASI Charan Singh has stated that accused has brought the thaili which also turned the table. Therefore, considering the contradiction , the recovery of Rs. 1240/- cannot be said to have been proved.
According to the prosecution, it is the calculated 16 move of the accused to commit the murder as the accused earlier also disclosed his intention to Mohd. Rahi, but the conduct of the accused does not support the case of the prosecution case. The conduct of the accused is important herein because after committing the murder, accused did not leave the place and disclosed the fact to the PW-1 that the deceased was not awakening. If the accused committed the murder and taken the thaili containing the money of deceased, then he would not remain present at the scene.
The only evidence available with the prosecution now is the extra judicial confession made by the accused to the PW-7 Mohd. Rahi. As it is well established law that court can rely on extra - judicial confessions if it is voluntarily made. It was held in Shiv Kumar Vs State by Inspector of Police by Hon'ble Supreme Court on 8.12.2005 that:-
" Extra Judicial confession may or may not be a weak evidence-- Each case is required to be examined on its own facts-- It is not open to any court to start with a presumption that extra judicial confession is a weak type of evidence --An extra judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court-- The confession will have to be proved like any other facts."17
It was further held by the Hon'ble Supreme Court in case titled as State of Andhra Pradesh Vs Kanda Gopaludu on 27.9.2005:-
" It is settled position of law that extra judicial confession, if true and voluntary, it can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. "
Now, the court has to see whether the extra judicial confession made to the PW-7 by the accused can be relied. According to the PW-7, he was taken by the police in P.S along with the accused and he had disclosed this fact to the police after the accused had confessed his crime. This witness deposed that he did not know as to how much time after his awakening, police has arrived at the spot. He had told the police about the fact that the accused has already apprised to him that he had killed Amma. PW-14 had denied that PW-7 was called in the P.S. The admission of the PW-7 that he was taken to P.S and there he had made the statement to the police 18 stating that the accused had made confessed his crime before him at 5.30am. Extra judicial confession cannot be said to be voluntary when the witness was in police custody. Moreover, by not narrating the fact immediately to the persons assembled there, after hearing the news of death of deceased Bhagwanti Devi, the testimony of PW-7 becomes doubtful about having made any extra judicial confession. The court had relied only when the extra judicial confession is voluntary and is capable of inspiring the confidence.
In the present case, the finger prints have not been lifted from the spot though the IO had ample opportunity to lift the finger prints from the neck of the deceased. It is the prosecution case the death was caused due to the manual strangulation. Moreover, visra has not been preserved nor any request has been made by the IO. It appears that the IO was in hurry to book the accused in the present case. In the present case, the recovery has not been proved by the prosecution. Extra judicial confession cannot be relied because of inherent contradictions and improvements in the testimony of PW-7 Mohd. Rahi. Motive has also not been proved by the prosecution. Therefore, the prosecution has failed miserably to prove the case against the accused that the accused has committed the murder of Amma by manual strangulation. Prosecution has not been able to establish the complete chain pointing the guilt of accused. 19
In view of the above discussion, I am of the considered view that the prosecution has miserably failed to prove its case against the accused that the accused Ameeruddin on the intervening night of 14/15-5-2006 in House No. 504/2 Circular Road Jawla Nager had committed the murder of deceased Bhagwati Devi beyond reasonable doubts. Hence, by giving of benefit of doubts, the accused is acquitted of the charge u/s 302 /404/411 IPC. He be set at liberty if not required to be detained in any other case. The case property, if any be confiscated to the state after the expiry of period of appeal or revision. File be consigned to Record Room. Announced in the open court On this 30.5. 2009 ( Atul Kumar Garg) Additional Sessions Judge, KarkardoomaCourts, Delhi.
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