Delhi District Court
State vs . Dharmendra Kumar on 27 March, 2018
IN THE COURT OF SH. JAGDISH KUMAR ,
ADDITIONAL SESSIONS JUDGE-02 (WEST) , DELHI.
New S.C No.57388/2016
Sessions Case No. 57/03/2011
Assigned to Sessions on 18/1/2014
FIR No. 116/2011
Police Station Moti Nagar
Under Section 302 IPC
Charged under section 302 IPC
State Vs. Dharmendra Kumar
S/O Sh Umesh Singh,
R/O Jhuggi No.A-378, B-58,
Rama Road, Moti Nagar,
New Delhi
Arguments heard on 26.03.2018
Date of Judgment 27.03.2018
Final Order Acquitted
Appearance(s) : Sh.R.S. Mangal Murti , Ld. Addl. PP, for the State.
Ld Counsel Sh Parveen Dabas for the accused.
JUDGMENT
PRELUDE
1. The case pertaining to the charge sheet being filed u/s 173(2) Cr.P.C, in respect of FIR No. 116/2011, U/s 302 IPC of PS Moti Nagar, Delhi. The chargesheet was committed to the Ld. Sessions Judge (West), vide order dated 26.08.2011 of the Ld. MM, along with the accused for the trial of offence u/s 302 IPC.
BRIEF FACTS
2. The brief facts, as per the case of the prosecution, are that on S.C No.57388/2016 State Vs Dharmender Page 1 of 27 07.05.2011, a telephonic call regarding murder of a female in Jhuggi No. A-378, B-58, Rama Road, Moti Nagar, Delhi was received in police Station which was reduced into writing vide DD No.34-A and marked to ASI Maman Singh for further investigation. On receipt of DD no. 34-A ASI Maman Singh along with constable Rajesh went to the spot. ASI Maman Singh confirmed the call to be true and got the information lodged in PS Moti Nagar, Delhi vide DD No.35-A .
3. The brother of the deceased namely Anil Kumar was found at the spot and got recorded his statement. He has stated that his sister was married to one Virender Mehto who was also resident of District Samastipur, Bihar. After the marriage her sister and brother-in-law continued to reside at Jhuggi nearby Rama Road, Moti Nagar, Delhi. Both of them were residing happily. He stated that at 7.30 pm, his employer Harkesh informed him that his sister Rinku is not well. He came to the residence of her sister and on reaching there he saw that dead body of his sister was lying in front of jhuggi and he also notice some injury marks on the face and neck of his sister. He has stated that when he entered the room of his sister he found broken pieces of bangles and other articles were scattered in the room.
4. On receipt of call from ASI Maman Singh, IO/Inspector Raj Kumar and SHO Raj Kumar rushed to the spot. They found the dead body of Rinku Devi was lying in the Gali outside the Jhuggi . The IO on general inspection of body found some struggle marks on the face and neck of the deceased. IO also inspected the S.C No.57388/2016 State Vs Dharmender Page 2 of 27 house of the deceased situated at second floor of the jhuggi and found some articles lying in scattered position. IO found hairs, chutki, bangles, jhumki, tops, two pairs of sleepers, plastic bottle make thumps up containing water, one glass tumbler and one mirror etc. The IO called the crime team at the spot. HC Surender of crime team took the photographs of scene of crime, on the instruction of IO as well as instruction of SI Kuldeep, Incharge Crime Team. The SI Kuldeep also inspected the scene of crime and handed over his report to the IO . HC Anil developed the chance print from mirror, glass tumbler and plastic bottle. The IO sent the dead body to Mortuary DDU Hospital through Ct Rajesh. The IO also lifted the artic les lying there at the scene of crime. The hairs lying at the spot were kept in a plastic dibbi and Doctor tape was affixed on it and same was sealed with the seal of RK and seized the same vide seizure memo. The broken pieces of glass bangles of Mahroon colour, leg's finger chutki, one ear tops and one Jhumki were kept in a plastic box and pulanda was prepared and sealed with seal of RK and the same has been seized. The Mirror, glass tumbler, one plastic bottle containing water on which thumps up 1.25 litre is written, one pair of rubber slipper of red colour on which TRZ was written and one pair of rubber slipper of black and red colour on which FLITE was written, were also kept in a separate pulandas and sealed with the seal of RK and the same has been seized vide a seizure memo.
5. The IO also recorded statement of Virender Mehto, Smt Aroliya Devi, Sumitra and Sunita Devi U/S 161 Cr P C. During the course of investigation accused Dharmender was arrested. I.O S.C No.57388/2016 State Vs Dharmender Page 3 of 27 prepared the site plan of the scene of crime. Moreover, as the the deceased was died within seven years of her marriage and death was unnatural, hence the SDM concerned was informed. The IO sent the exhibits to FSL Rohini, Delhi. After completion of investigation and finding sufficient evidences available on the record. The IO prepared the charge sheet and filed the same before the Ld. MM for the offence under section U/S 302 IPC against the accused.
THE CHARGE
6. After the committal proceedings, the case was sent to Ld. Sessions Court and Ld. Sessions Court has marked the present case to the Ld Predecessor of this court. The Ld Predecessor of this Court, after considering the material on record and hearing the Addl. PP for the State and Ld Counsel for the accused, found a prima facie case for the offence punishable under section 302 IPC against the accused. The Charge was accordingly framed vide order dt. 16.09.2011, to which the accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
7. In order to prove its case, the prosecution has examined 23 witnesses. The PW1 is Sunita, PW2 is Virender Mahto, PW4 is Sh Kuldeep, PW 5 is Sh Parmod Kumar,PW6 is Rajinder, PW7 is Smt Sumitra, PW8 is Smt Aroliya Devi, PW 12 is Bal Kishan and PW22 is Sh Anil, all these witnesses are public witnesses,while other witnesses are either police officials or medical/ experts witnesses who have participated during the course of investigations.
S.C No.57388/2016 State Vs Dharmender Page 4 of 278. PW1 is Smt Sunita , who has deposed that accused Dharmender is son of her Maternal uncle. She used to reside at the ground floor of Jhuggi No. A-378, B-58, Rama Road, Moti Nagar, Delhi and accused used to reside at the first floor in a room, for the last one week. She further deposed that Virender Mehto along with his wife Rinku, used to reside as tenant at 2 nd floor of that Jhuggi. The Accused came at their house at about 3-3:30 PM on 07.05.2011 and she had asked the accused as to why he had come so soon. The Accused stated that he was having pain in his leg. She asked accused to take medicine to which accused stated that he would take the same and thereafter he went at the first floor of the Jhuggi to take rest. She has deposed that wife of her neighbour namely Avinash went at the 2nd floor of Jhuggi at about 6 PM and thereafter came to her and stated that Rinku Devi is not getting up. Thereafter, her daughter namely Babli aged about 6 years went at the tenanted room of Rinku Devi to see her and her daughter came to her and also stated that Bhabi Rinku Devi is not getting up. Thereafter PW1 went at the rented room of Rinku Devi. She raised alarm, some of their neighbours came there and Smt. Rinku Devi was brought down from the 2 nd floor and initially she was taken to a nearby Bengali doctor and thereafter to a Govt. hospital, where she was declared brought dead.
9. PW 2 is Virender Mahto, husband of deceased Rinku Devi, who has deposed that he alongwith his wife used to reside as a tenant at second floor in the house of Smt. Sunita Devi for the last 2-3 years. It is deposed by him that landlady is residing on S.C No.57388/2016 State Vs Dharmender Page 5 of 27 the ground floor,and first floor. The accused came to reside at the house of Sunita Devi before 3-4 days and accused used to take meal prepared by Sunita Devi. He has deposed that on 07.05.2011 at about 10:00 AM he left his rented room for going to his work place i.e. Kirti Nagar. He was informed in the evening hours that his wife Rinku Devi was not well and he was asked to reach there. He came to know that his wife had expired and there was ligature mark on her neck. This witness has checked his room and found articles were lying scattered inside his room and bangles of his wife were also found broken. He has deposed that before 2-3 days from date of incident , his wife stated to him that accused Dharmender used to stare at her and used to have ill eye upon her. He has deposed that he did not see accused after the death of his wife. His wife has been killed by accused after strangulating her.
10. PW3 HC Mewa Ram, the duty officer, has recorded DD NO.34A regarding murder of one lady at jhuggi No.A-378, B-58, Rama Road and proved trhe same videPW3/A. He has also proved copy of DD NO.35A Ex.PW3/B and copy of DD NO.36A vide Ex.PW3/C.
11. PW4 is Kuldeep who has deposed that accused Dharmender came at his shop for job and worked for 10-12 days. He has left his shop during lunch hours on the ground that he was having pain in his leg and thereafter he did not come.
S.C No.57388/2016 State Vs Dharmender Page 6 of 2712. PW5 is Sh Parmod Kumar, SDM Patel Nagar who deposed that on receipt of information regarding murder of one lady namely Rinku Devi at A-378, B-58, Rama Road, Moti Nagar, Delhi he went there. He also went at DDU Hospital and recorded statement of Smt. Aroliya Devi, mother of deceased Rinku Devi. He made a request to the autopsy surgeon for conducting the post mortem.
13. PW6 Sh Rajinder was working as guard in the area of Hari Nagar, Delhi. He alongwith his tenant Sandeep went outside the jhuggi of Sunita and then alongwith Sunita, they went upstairs to the house of Dharmender and found Rinku Devi lying unconscious there. They took her to the nearby Bengali doctor and thereafter to Acharya Bikhshu Hospital where she has expired.
14. PW7 is Smt Sumitra, one of the neighbour of Jhuggi No. A- 378, B-58, Rama Road, Moti Nagar, Delhi came to know about the incident from the locality that wife of Virender has expired in hospital.
15. PW8 is Smt Aroliya Devi, mother of the deceased Rinku Devi, and she has deposed that on 07.05.2011 at about 8 PM, when she was in the way near Gole Chakkar, one boy aged about 7-8 years had asked her "Kya Rinku ki tabiyat kharab ho gai hai. She has deposed that when she reached near the gate of the hospital, she saw that Rinku was brought by Virender from the hospital. At that time, Rinku was accompanied with accused Dharmender and his sister Sunita . She has deposed that at the house of her daughter, she was not allowed to see S.C No.57388/2016 State Vs Dharmender Page 7 of 27 the face of her daughter by Sunita, accused Dharmender and Virender. But she forcefully removed the hands of Virender and Sunita and saw the body of her daughter Rinku and found that there was a blackish mark near the neck of her daughter Rinku and there were also several scratches on her face.
16. PW9 is HC Anil Kumar who deposed that on 08.05.2011, he alongwith SI Kuldeep, incharge of Crime Team, HC Surender, Photographer went to the scene of crime. He lifted four chance prints from the spot. He had mentioned the details of chance prints taken by him in Crime Team Report prepared by SI Kuldeep Singh.
17. PW 10 HC Surender deposed that on 08.05.2011, on receipt of a call, he alongwith SI Kuldeep Singh, HC Anil Kumar reached at the scene of crime and at the instructions of the IO, he took photographs of the place of incident from different angles and the photographs Ex.PW10/A (Colly.) He has also proved 16 negatives of those photographs vide Ex.PW10/B ( Colly)
18. PW11 Ct Rajesh Kumar, on receipt of DD No.34-A, he alongwith ASI Maman Singh reached at Jhuggi No. A-378, B-58, Rama Road, Moti Nagar, Delhi and saw that a dead body of a female was lying. The information was given to PS and Insp. Raj Kumar reached at the spot alongwith SHO. The Asal Tehrir was prepared and at about 02:00 AM, he took the Asal Tehrir to the PS and got the FIR registered and returned to the spot alongwith copy of the FIR. He further deposed that after the post mortem, the dead body of deceased Rinkyu Devi was S.C No.57388/2016 State Vs Dharmender Page 8 of 27 handed over to the relatives of the deceased. He has deposed that accused was apprehended from near toilet, Rama Road, on the basis of one secret informer. Accused was interrogated and arrested by Insp. Raj Kumar, vide arrest memo Ex.PW11/A. The personal search of accused was also conducted vide memo Ex.PW11/B. The witness also deposed that the disclosure statement of the accused was also recorded vide Ex.PW11/C. The accused also identified the place of occurrence vide memo Ex.PW11/D.
19. PW12 is Sh Bal Krishna Yadav, who has brought the summoned record i.e. Admission Register of accused as per recorded of the School, the date of birth of accused is 08.02.1992. He has proved photocopy of the said entry vide document Ex.PW12/A.
20. Ct Anand Kumar has also examined and Serial No. to him has also been given as PW12. (He be considered as PW12-A) The witness has deposed that on 15.07.2011 on the instructions of Inspr. Raj Kumar he took pulandas containing exhibits of present FIR, vide Road Certificate no. 69/21/11 from the MHC(M) and deposited the same in FSL, Rohini, Delhi.
21. PW13 is Dr Dhruv Sharma, Assistant Director FSL Rohini has proved his biological examination report vide Ex. PW 13/A. He has deposed that exhibits were also examined serologically and his detailed report is Ex. PW 13/B. He has given his detailed report Ex PW13/C and Allelic of DNA profile report is Ex PW13/D. S.C No.57388/2016 State Vs Dharmender Page 9 of 27
22. PW14 S.I Kuldeep Singh, In charge crime team, has visited at Jhuggi No,. A-378, B-58, Rama Road, Moti Nagar, Delhi alongwih crime team members. They found SHO Moti Nagar alongwith staff present at the scene of crime. The dead body of one female was found lying in front of the jhuggi. He inspected the scene of crime and prepared his detailed report of the scene of crime vide report Ex.PW14/A .
23. PW15 Ct Manoj deposed that on 26.05.2011 accused brought to the hospital Lock up by him on the directions of the Sr. Officers and from there he was taken before the Doctor by Insp. Raj Kumar alongwith him (PW15) and accused was medically examined in the hospital.
24. PW16 ASI Ravinder Singh, the Duty officer, has deposed that he recorded FIR in the present case on the basis of tehrir sent by Insrp. Raj Kumar through Ct. Rajesh. He has proved the copy of the FIR vide Ex. 16/A. He has also proved his endorsement the the tehrir vide Ex.16/B .
25. PW17 HC Pyare Lal, MHC (M) has deposed that on 08.05.2011, IO Inspr. Raj Kumar had deposited 07 sealed pulandas with the seal of DDU, three sealed pulandas with the seal of RK and two other pulandas along with personal search of accused. He made the entry in the Malkhana Register vide entry No. 2735/11, copy of the same is Ex 17/A. He further S.C No.57388/2016 State Vs Dharmender Page 10 of 27 deposed that on 15.07.2011, Vide RC No. 69/21/11 8 sealed pulandas along with sample seal duly detailed in the RC were sent to FSL, Rohini through Constable Anand and he made relevant entry in register no.19 at the same serial no. He has proved the copy of road certificate as Ex. 17/B. He further deposed that Constable Anand handed over him receipt Ex. PW 17/C after depositing the above said pulandas at FSL Rohini, Delhi.
26. PW18 is Dr Komal Singh,who has conducted post mortem on the body of deceased Rinku Devi. He observed Injuries marks over her face, neck etc. His detailed PM report is Ex PW18/A. He has opined the cause of death as asphyxia caused by combined effect of manual smothering and forcible manual throttling. He further deposed that on 24.06.2011 an application alongwith a parcel produced Inspector Raj Kumar who sought an opinion regarding used cloth in strangulating the victim Rinku Devi. On opening the parcel a Chunni was found and it was opined that the injury No5 could be caused by this Chunni. The Chunni was repacked and sealed with seal of DDU HOSPITAL DFMT . His detailed subsequent opinion report in this regard is Ex PW 18/B.
27. PW 19 Ct Sukhpal has deposed that on 24.06.2011 he alongwith IO went to Forensic Department, DDU Hospital, Delhi. IO handed over said parcel to the Doctor. Doctor concerned gave subsequent opinion about the Chunni and put the chunni in the same envelope and sealed the same with the S.C No.57388/2016 State Vs Dharmender Page 11 of 27 seal of DDU hospital DFMT and handed over it to IO. He deposited said envelope with MHC (M).
28. PW 20 is ASI Maman Singh has deposed that on 07.05.2011 on the receipt of DD no. 34-A, he along with constable Rajesh, went to Jhuggi No. A-378, B-58 Rama Road, Moti Nagar, Delhi. Where he found that dead body of a lady namely Rinku Devi was lying in the Gali. She was having some injury marks on her face and neck. He has further deposed that on inspection some broken pieces of bangles, Chuttki, one tumbler made of glass, some strands of hair and one water bottle were found at the scene of crime. He further deposed that outside the room of the deceased on second floor of the said Jhuggi two pairs of Chapples of Rubber were found. PW20 passed on the information to the PS Moti Nagar vide DD No.35- A. Thereafter Inspector Raj Kumar and SHO Inspector Raj Kumar, came at the spot. He has further deposed that IO recorded statement of brother of deceased Anil Kumar and made an endorsement on Anil's statement, prepared the Tehrir and sent constable Rajesh to the PS for the registration of the FIR.
29. PW20 has further deposed that crime team reached at the spot and they conducted their proceedings. IO prepared the site plan and seized the strands of hair and put them in plastic dibbi and sealed it with seal of RK. The same was seized vide seizure memo Ex.PW20/A . IO seized the articles like pieces of bangles, chuttki, ear tops and one Jhumki after putting the S.C No.57388/2016 State Vs Dharmender Page 12 of 27 same in a plastic dibbi and sealed the with the seal of RK and seized the articles vide seizure memo Ex.PW-20/B. One mirror, one tumbler made of glass, one plastic bottle 'Thumbs up' and two chapples were in a Pullanda and sealed the same with the seal of RK and seized the same vide seizure memo Ex.PW20/C. He has deposed that On 08.05.2011, he along with IO went to DDU Hospital Mortuary where SDM, Rajouri Garden, Sh. Pramod Kumar arrived. The SDM signed the papers for the request for PM and form 25.35(b). The doctor concerned conducted the PM on the body of deceased and handed over the exhibits to the IO inspector Raj Kumar. The said exhibits sealed with the seal of DFMT, DDU Hospital and IO has seized wide seizure memo Ex. PW-20/D. He has deposed on receipt of secret information accused was apprehended and arrested vide arrest memo Ex PW11/A. Accused was medical examined and the doctor concerned handed over sealed pullanda sealed with the seal of CMO DDU Hospital to the IO and IO seized the same vide seizure memo vide Ex. PW-20/E. The witness has also identified the case property Ex PX, P-1 to P-9.
30. PW21is Dr Sanjay Rai has deposed that on 8.5.2011, accused was brought to DDU Hospital Casualty and accused was examined by Dr Alok. On local examination accused was found scratch mark on his face right side near right eye, near mouth right side , right forearm, lower 1/3 rd, behind right ear on pinna of ear. No other visible fresh external injury seen. The Doctor concerned had taken the blood sample, pant, shirt, under garments and hair strand and converted the sdame into three separate pulandas. All the said pulandas were sealed with S.C No.57388/2016 State Vs Dharmender Page 13 of 27 the seal of CMO DDU HOSPITAL. All the said three pulandas alongwith sample seal were handed over to the IO concerned. He has proved the MLC Ex PW21/A.
31. PW22 Sh Anil Kumar, brother of deceased. He has deposed that on 07.05.2011, he had received a phone call from his mami that his sister might have received the electric shock and she was being taken away to nearby OPD at Moti Nagar. On reaching at the hospital, he came to know that she had been taken back. He has further deposed that when he reached at the jhuggi where his sister was residing with her husband, he went upstairs and found the household articles and jewellery articles lying scattered over there giving the impression that some scuffle might have taken place over there. Thereafter, he came downstairs where the dead body of his sister was lying. At that time he noticed a ligature mark on the neck of his deceased sister. He has deposed that police recorded his statement and after the postmortem on the body of his deceased sister, he identified the dead body of his sister vide memo Ex. PW22/B.
32. PW23 is Inspector Raj Kumar deposed that i n pursuance of DD NO.35-A he alongwith SHO reached at the spot. He found that one lady lying in the Gali in front of Jhuggi No. A-378, B-58, Rama Road, Moti Nagar, Delhi. He checked the body of said lady and found her dead. On general inspection of body he found some struggle marks on the face and neck towards throat side of deceased . He has further deposed that on reaching on the S.C No.57388/2016 State Vs Dharmender Page 14 of 27 second floor of said jhuggi where deceased was residing he found some articles lying in scattered position. He found hairs, chutki, bangles, jhumki, tops, two pairs sleepers, plastic bottle make thumps up containing water, one glass tumbler and one mirror etc. He has recorded statement of Anil, made endorsement on the same, prepared ruqqa and handed over the ruqqa to Ct Rajesh for taking it to PS for registration of FIR.
33. PW23 called the crime team. The Crime team members reached at the spot and conducted their proceedings. He has deposed that he had sent the dead body to Mortuary of DDU Hospital, Delhi through Ct Rajesh. He lifted the articles lying at the scene of crime. The hairs lying at the spot were kept in a plastic dibbi and seized vide seizure memo Ex PW20/A. The broken pieces of glass bangles of Mahroon colour, leg finger chutki, one ear tops and one Jhumki were kept in a plastic box and pulanda was prepared and sealed the same with the seal of RK and also seized the same vide seizure memo Ex PW20/B.Mirror, glass tumbler, one plastic bottle containing water on which thumps up 1.25 litre , one pair of rubber slipper of red colour and one pair of rubber slipper of black and red colour were kept in a separate pulandas and sealed with the seal of RK. All the five sealed pulandas were seized vide seizure memo Ex PW20/C. He has deposed that he recorded statement of witnesses. Accused was residing on the first floor of same jhuggi and he was not found present there. He made effort to search the accused at that time. He prepared site plan Ex PW23/B. The Inquest proceeding was conducted by SDM Parmod Kr.
S.C No.57388/2016 State Vs Dharmender Page 15 of 2734. He has further deposed that after the Post mortem four sealed parcels sealed with the seal of DFMT DDU Hospital were given by the concerned Doctor which were seized by him vide seizure memo Ex PW20/D. He has deposed that on receipt of secret information accused was arrested. He has further deposed that on inspection of body of accused he found some scratch marks on the face, back portion of the ear and some other parts of the body of accused. Accused was arrested in this case and in his personal search one mobile phone make Nokia and Rs.220/- were found. The accused was medically examined at DDU Hospital,Delhi on his (PW23) request, the concerned Doctor had took the exhibits i.e cloths of the accused, blood sample and scalp hairs from head and handed over the same after sealing it with the seal of CMO DDU Hospital to him. He seized the abovesaid three sealed pulandas alongwith sample seal vide seizure memo Ex PW20/E. He has deposed that on verification of Date of birth of accused was found major. On 24.06.2011 he took subsequent opinion from Autopsy Surgeon in respect of Chunni. He has deposed that on 13.07.2011, he alongwith SI Mahesh reached at the spot , who prepared a scaled site plan. Later on he handed over the scaled site to him. He has further deposed that on 15.07.2011, the exhibits were sent to FSL Rohini through Ct Anand for expert examination. And after completion of investigation challan was filed in the Court.
STATEMENT OF ACCUSED
35. After completion of the prosecution evidence, the statement of accused under section 313 Cr.P.C. was recorded so as to enable him to personally explain the circumstances S.C No.57388/2016 State Vs Dharmender Page 16 of 27 appearing in the evidence against him. All the incriminating evidence were put to the accused to which he denied, as being incorrect and has stated that a false case has been registered against him and he has been falsely implicated in this case. He however, has chosen not to lead any defence evidence.
ANALYSIS & DETERMINATION
36. I have heard the Ld. Addl. Public Prosecutor Sh. R.S. Mangal Murti for the State and Ld Counsel for the accused . I have carefully perused the entire record including the testimonies of prosecution witnesses, documentary evidence and the statements of the accused. I have given a thoughtful consideration to the same.
37. It is a settled proposition of law that to bring home conviction, the prosecution has to establish its case beyond the pale of reasonable doubt by establishing an unbroken chains of events, leading to commission of the offence with which the accused are charged with. It is further a settled proposition of law that once this chain is broken or a plausible theory of another possibility is shown, the accused persons become entitled to the benefit of doubt ultimately leading to their acquittal. In case titled as Sadhu Singh Vs. State of Punjab 1987 (3) Crimes 55.
38. Since in the instant case, the accused has been charged with the offence u/s 302 IPC. The court shall firstly deal with S.C No.57388/2016 State Vs Dharmender Page 17 of 27 the essential ingredients which prosecution is required to prove in order to establish the charges against the accused.
39. The offence of murder U/s 302 IPC is the most heinous crimes under the penal law which provides a maximum punishment uptil death. Section 302 IPC provides for punishment for murder in a very simple language thereby laying down that "whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine". The substantive offence of murder is defined u/s 300 IPC which provides for a inclusive definition of murder, at the same time distinguishing it with section 299 IPC where the culpable homicide not amounting to murder has been explained. The offence of murder requires a perfect combination of important ingredients of crime which are mens rea and actus reus. It also prescribes that there should be a complete coherence between the actus and mens rea at the time of death of a person is committed. The section further provides that in case the degree of actus or mens rea is lessoned, or the circumstances falls under any of the exceptions as enumerated, in such an eventuality, the offence again slips back to Section 299 IPC. Simply stating in every offence of murder, there shall a culpable homicide as defined under section 299 IPC but not vice a versa. Reliance placed on case titled as, Narsingh Challan Vs. State of Orissa (1997) 2 Crimes 78 .
40. So in the light of settled proposition of law, let us examine whether the prosecution has been able to connect the accused S.C No.57388/2016 State Vs Dharmender Page 18 of 27 with the offence with which accused has been charged or not. Since there is no direct evidence and the case of the prosecution is totally rests upon the circumstantial evidence.
41. The circumstantial evidence is also an admissible evidence in a criminal trial but this kind of evidence has to be treated with a lot of caution and circumspection by the criminal Court because of the inherent subjectivity in drawing the conclusions by the Court concerned. The law regarding the nature and character of proof of circumstantial evidence has been settled by Hon'ble Supreme Court in Hanumant Vs State of Madhya Pradesh 1953 Crl L J 129 who expounded the concomitants of the proof of a case based on circumstantial evidence by holding:
"The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. It must be such as to show that within all human probability the act must have been done by the accused."
42. This was followed consistently by the Courts in India in all future decision and was succinctly reiterated by a Full Bench Judgment of the Hon'ble Apex court in Sharad Birdhichand Sarda Vs State of Maharastra, 1984 Crl L J 1738 Where the Hon'ble Court while discussing the entire gamut of decision has laid down the five golden principals of proof in a case based upon circumstantial evidence thereby laying down that the following conditions must be fulfilled before a case against an accused can be fully established:
S.C No.57388/2016 State Vs Dharmender Page 19 of 27(1) the circumstances from which the conclusion of is to be drawn should fully established. (2) the facts so established should be consistently only with the hypothesis of the guilt of the accused that is to say, they should not be explained on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except that 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.
43. So in the light of settled proposition of law,let us examine the case of prosecution. If we go as per the story of prosecution, The case of the prosecution is that the accused was having ill intention towards deceased Rinku and deceased Rinku stated these facts to her husband who has consoled the deceased that accused will leave the premises where he was residing on the first floor at Jhuggi No. A-378, B-58, Rama Road, Moti Nagar, Delhi and on the fateful day ie 07.05.2011 the accused attempted to fulfill his sexual desire to which deceased resisted and started shouting on this accused has strangulated the deceased with her chunni.
44. So in the given circumstances, the first fact has to be proved is whether the deceased Rinku was murdered on the fateful day ie 07.05.2011. In this regard testimony of Dr Komal Singh (PW18) is important alongwith other witnesses who has conducted Post Martem on the body of deceased vide PM report Ex PW18/A and given subsequent opinion Ex PW18/B. The witness PW22 Anil Kumar has identified the dead body of deceased vide identification memo Ex PW22/B. So the fact has S.C No.57388/2016 State Vs Dharmender Page 20 of 27 been proved that deceased Rinku was murder by strangulation.
45. Now the question arises who has murdered the deceased Rinku Devi. It has to be examined whether the prosecution has able to prove the circumstantial evidence against the accused without any unbroken chain of circumstantial evidence.
46. To prove the circumstantial evidence, the first fact has to be proved by the prosecution whether the accused was residing on the first floor of Jhuggi No. A-378, B-58, Rama Road, Moti Nagar, Delhi during the relevant period. In this regard evidence of PW1 Sunita Devi and testimony of PW2 Virender Mehto are relevant. Both the witnesses has corroborate to each other on the fact that accused had come in the property of PW1 Sunita about a week prior to the date of incident. So a fact has been proved on record that accused was residing on the first floor of Jhuggi No. A-378, B-58, Rama Road, Moti Nagar, Delhi prior to and till the date of incident and till he was arrested.
47. The fact of presence of accused at the first floor on 07.05.2011 at about 3-3.30 pm is not disputed by the Ld Counsel for the accused.
48. Now the another fact which has to proved by the prosecution is whether the accused was seen at the scene of crime at the relevant time of incident. In this regard the prosecution has cited PW7 Sumitra as the witness who has lastly seen the accused being coming from the premises of the deceased. But when this witness has been examined in Court .
S.C No.57388/2016 State Vs Dharmender Page 21 of 27She has deposed that she does not knows about the facts of the case. She was declared hostile and cross examined by the Ld Addl P.P for the State. In that circumstances, it become the duty of the Court to separate the grains from the husk. In this regard the cross examination of PW7 has to be appreciated. From the cross examination of PW 7 it reveals that except suggestion to this witness nothing has come substantial on record in cross examination of this witness which could have support the last seen theory of the prosecution, that she (PW7) has seen the accused coming down from the house of deceased in perturbed condition. There is no other witness on record who has deposed that the accused was last seen with the deceased. The last seen theory of prosecution has failed.
49. Now as there is no evidence at all on record regarding last seen theory of the prosecution. Let us turned to the expert evidence. In this regard it is the case of the prosecution that finger prints were lifted from the spot ie glass and plastic bottle. And the finger prints of the accused were taken. The four chance mark Q1 to Q4 were sent to the Finger Prints Bureau with the request to match specimen finger print of deceased Rinku Devi W/O Virender Mehto, Virender Mehto S/O Harchand Mehto and accused Dharmender Kumar S/O Umesh Singh with the chance prints lifted from the scene of crime. The only chance print which could be developed for comparison is the chance print mark Q-1 but this chance print was not matching with the finger prints sent for comparison. The expert report dated 06.07.2011 prescribes that the chance print were not matched with the specimen finger print of accused S.C No.57388/2016 State Vs Dharmender Page 22 of 27 Dharmender. The Finger Print Bureau was not having any matching record with chance print Q-1. The chance prints marked Q2 to Q4 were not developed being either blurred, partial or smudged. So this scientific evidence is not helping the prosecution.
50. Now turns to the DNA profile report . The police has lifted certain exhibits from the scene of crime such as strand of hair being recovered from the spot as well as hair being found in the hand of the deceased and nail clip of deceased and same were sent for DNA Finger printing. But the DNA profile could not be developed from the nail clipping of the deceased as well as from the strand hair being seized from the hand of the deceased. But the DNA profile was developed from the strand of hair being found from the spot but it was not of a male person but it was of female. So DNA profile report is also not helpful to the case of the prosecution. There was no DNA Finger printing with which the DNA Finger Printing of accused Dharmender could have been matched.
51. Now turns to another circumstantial evidence as has been asserted by the prosecution which is that the accused was having scratch marks on his face. Since no DNA profile has been developed from the nail clip of the deceased. So it cannot be safely said that injury were caused during the scuffle between the deceased and accused. On the other hand, accused has took the plea that he was taken to P.S on the same day ie 07.05.2011 and was beaten by the police official for that reason that injuries were come on his face. This defence taken S.C No.57388/2016 State Vs Dharmender Page 23 of 27 by the accused is a plausible and probable defence. Because there are material contradiction in the testimony of witnesses regarding arrest of accused. As PW2 has deposed in his cross examination that he alongwith her mother- in- law (PW8) and brother in law Anil( PW22) and accused were taken to Police Station on the same day on which the incident happened. The MLC of accused Ex PW21/A does not prescribes the scratches on the face of accused regarding at what time the same could have been probably inflicted.
52. Moreover, there are contradictions in the statement of police witnesses regarding apprehension of accused on the next date of commission of offence. The testimony of PW6 Smt Aroliya Devi, mother of the deceased Rinku Devi is also relevant. She has deposed that on 07.05.2011 when she came at the residents of Rinku ( deceased), at about 8 PM, at that time accused Dharmender and his sister Sunita and Virender ( husband of deceased) have not allowed her to see the face of her daughter. So the theory of the prosecution that accused was absconding from the scene of crime after committing crime is not proved on record. Rather it proves that the accused may have apprehended on the same day of incident and probability cannot be ruled out that he might have been beaten by the police officials.
53. Even on perusal of testimony of PW6, mother of the deceased, it reveals that she has put forward a new theory and stated that it is the husband of the deceased namely Virender who has committed murder of her daughter on the S.C No.57388/2016 State Vs Dharmender Page 24 of 27 pretext of dowry.
54. One another fact for consideration is the accessibility of the premises/ scene of crime by any person. The PW 1 Sunita has deposed in her cross examination that the stair for going to the First Floor is from the outside of the premises No. A-378, B-58, Rama Road, Moti Nagar, Delhi. PW2 has also deposed in his cross examination that there is no door on the stair and the stairs are towards Varandah. The site plan Ex PW23/B does not describes to the stairs leading to the second floor of Jhuggi No. A-378, B-58, Rama Road, Moti Nagar, Delhi. And in the neighbour there is Jhuggies bearing No.A-379 and A-377. So a fact has been proved on record that the place where the offence has been committed was easily accessible for any person.
55. So far as the motive to commit the murder of deceased by the accused, as has been shown by the prosecution, is concerned. It is the case of prosecution that accused was having ill intention towards the deceased. In this regard the deposition of PW 2,husband of deceased namely, Virender Mehto is important. He has deposed that accused was staring on the deceased. But in his cross examination he has stated that he had not made any complaint to any person regarding staring his wife by the accused. So, the deposition of PW2 in his examination in chief, that accused was staring her wife, is not acceptable in given facts and circumstance of the present case.
S.C No.57388/2016 State Vs Dharmender Page 25 of 2756. Even otherwise, whenever a person stare upon the wife of another person and that lady told the fact of staring to her husband then naturally in that circumstances, the husband of that lady will complaint to the to the person having some control over the person staring or to the person staring. In the facts and circumstances of the present case, the landlady of the premises, where PW2 and deceased were residing, is a female. And it was easy for the deceased to make complaint to the landlady who is cousin sister of accused and being cousin sister the landlady could have mend the accused. But no complaint was made by the deceased to the landlady. It is also nowhere deposed by PW 2 in his examination that his wife made any complaint to the landlady of the tenanted premises where she was residing alongwith her husband. The PW2 has no where deposed that he had also made any complaint to the landlady (PW1 Sunita). Even PW 1 Sunita no where deposed in her examination that PW2 ( Husband of deceased) had ever inquired from her regarding the time period for which accused will stay alongwith her which also negates the theory of prosecution that accused was having ill will towards deceased. The motive to commit crime by the accused fails.
57. In view of the above discussion, the prosecution has utterly failed to prove its case so as to complete the chain much less to prove the same beyond the pale of reasonable doubt. Resultantly, the accused is entitled to be acquitted by giving him the benefit of doubt and accordingly acquitted of the charges.
S.C No.57388/2016 State Vs Dharmender Page 26 of 2758. In view of the statutory requirement of section 437-A Cr.P.C. the accused is directed to furnish a bail bond in the sum of Rs.20,000/- with one surety of like amount to the satisfaction of the court, for a period of 6 months, to appear before the appellate court, if so required.
59. File be consigned to record room after due completion.
ANNOUNCED IN THE OPEN COURT ON THIS 27.03.2018 (JAGDISH KUMAR ) ADDI. SESSIONS JUDGE-02 (WEST):DELHI S.C No.57388/2016 State Vs Dharmender Page 27 of 27