Delhi District Court
State vs Nitin on 20 October, 2014
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
DWARKA COURTS, NEW DELHI
SC No.11/1/11
FIR No.137/10
U/s 302 IPC
PS Inderpuri
State
Vs.
Nitin s/o Sh Ram Nivas
R/o A116 WZ148 Bihari Colony
Todapur, Inderpuri
New Delhi ............. Accused
Challan filed on : 25.03.2011
Reserved for Order on : 14.10.2014
Date of Pronouncement : 20.10.2014
JUDGMENT
The conspectus in brief of the prosecution case are that on 18.11.2010, DD no.13A was recorded by SI Sudesh Pal which was handed over to SHO. The said DD was got recorded on the call made by Sh Shyam Lal who has informed that his daughter has been killed. On receipt of said DD, ASI Jagdish alongwith Ct. Neeraj reached at H.No. A116/WZ148, Bihari Colony, Todapur where on the first State Vs.Nitin FIR no.137/10 Page No. 1 of 47 floor, one lady whose name revealed as Sonia @ Imrati was found lying dead. Insp.Ramesh and Insp.Jagpal also reached there. Red Mark on the chin of deceased was notice. Crime team came at the spot and inspected the spot. Sh Shyam Lal, father of deceased made statement Ex.PW1/A wherein he has alleged that Sonia was his eldest daughter who was got married on 26th May 2002 with Achanak@Phony who were earlier residing in Agar Nagar and residing in Todapur for last 3 4 years. His daughter Sonia had one son aged about 2 or two and half years. Since after marriage his daughter used to be harassed by her in laws. His daughter told him several times that her inlaws used to harass her for money. His daughter alongwith his soninlaw came to his house at Nangloi several times in order to demand money. His daughter used to do maid work in different houses and whatever amount is earned by her, used to be snatched by inlaws. He has further alleged that on 16.11.2010, his daughter Sonia alongwith his soninlaw had come to his house and she disclosed her grievances to his wife Jagmati and she returned back to her house on the same day. On 18.11.2010 he was on duty. At about 12.30 p.m he received call that his daughter is dead. He went to Bihari Colony alongwith his family members and he saw his daughter lying on bed and both thumb of her feet were tied with a thread and there was cotton in her nostrils. He has further stated that his mobile was taken by his son and his son Amarjeet made call at number 100. He suspects that his daughter has State Vs.Nitin FIR no.137/10 Page No. 2 of 47 been murdered by her inlaws. On the basis of this statement, present case was registered. Post mortem examination on the dead body of Sonia was conducted. Her cloths and vaginal smear was taken. Local enquiry was conducted to establish as death. On 21.12.2010, the cause of death was opined as Asphyxia due to antemortem Strangulation at neck by ligature material. Case u/s 498A/302 IPC was registered. Suspects were interrogated. During interrogation accused Nitin admitted his guilt. His disclosure statement was recorded. He got recovered chunni i.e. ligature material. The medical of accused was got conducted and his blood sample was taken. Accused was arrested. Exhibits were sent to FSL. Subsequent opinion was taken and after completion of investigation, challan was filed.
2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 02.04.2011.
3. The charge against the accused u/s 302 IPC was framed on 03.01.2012 to which the accused pleaded not guilty and claimed trial.
4. The prosecution, in support of its case, in all has examined as many as 23 witnesses. PW1 Shyam Lal is the complainant and father of deceased who has deposed that Sonia was married on State Vs.Nitin FIR no.137/10 Page No. 3 of 47 26.05.2002 with Achanak @ Foni. His daughter Sonia was having a son aged about 34 years now. He used to financially help his daughter & her husband in her household expenses. His daughter used to go for work as part time maid in kothies . His daughter was living alongwith her husband and his grandmother. His sonin law used to consume liquor and he and his parents also used to harass his deceased daughter for demand of money. Accused Nitin used to accompany his deceased daughter to her work place at kothis at the behest of his parents. He has further deposed that two days before her death, she had come to his house with her husband and asked for money. His daughter told that accused Nitin was keeping bad eye on her and wanted to have illicit relations with her. He tried to make his daughter and soninlaw understand and told her to remain strict with him by saying 'usko chapal maar do agar wo aisi harkat karta hai to'. They visited his house on 16.11.2010. On 18.11.2010, mother in law of his daughter informed that Sonia had died. He along with his wife went there and found Sonia lying dead on a bed and cotton was put in both her nostrils and her toes of both the feet were tied together. He has further deposed that on being inquired his son in law and mother in law gave different versions. His son in law disclosed that Sonia and her sister in law were clearing the house and during the process of sweeping, she had fallen and died. His son informed at no.100. Police reached there and dead body was taken to hospital. His statement Ex.PW1/A was State Vs.Nitin FIR no.137/10 Page No. 4 of 47 recorded. He has further deposed that later he came to know that his daughter was killed by strangulation by accused along with his family members Ram Ni was and his wife and their daughter. In cross examination, he has deposed that unto 28.11.2010 it was not in his knowledge that his daughter had illicit relations with accused Ni tin. He did not sign any document on 18.11.2010 in the PS. Neither any family members of deceased to him about illicit relations to the accused with deceased nor he told the same to the police. His deceased daughter and his son in law came to his residence on 16th but he does not remember the month whether it was Nov or Dec. No conversation took place between her and her daughter on that day. Vol. But his deceased daughter had talked with his wife.
5. PW2 Amarjeet is the brother of deceased and he has deposed that his sister was married to Achanak on 26.5.2002. On 18.11.2010 his father received a called that Sonia had died. On receipt of information, he alongwith his parents went to there and found Sonia lying on bed and cotton was put in her nostrils and toes of both the feet were tied. He informed at no.100. Police came and dead body was taken to hospital. He has further deposed that on 19.11.2010 post mortem was got conducted and he identified the dead body of his sister in mortuary vide statement Ex.PW2/A. The dead body was handed over to them vide receipt Ex.PW2/B. He has further deposed State Vs.Nitin FIR no.137/10 Page No. 5 of 47 that later he came to know that accused Nitin was having illicit relations with his sister Sonia and when the marriage of Nitin was settled with some other girl, he got scared that the girl to whom he intended to marry and her parents might not come to know about his illicit relations with his sister due to which reason he had killed his sister by strangulating her with a dupatta. Vol. He was informed by the SHO about illicit relations . He has deposed that his sister used to tell them that she was being harassed there by her husband and he used to beat her after consuming alcohol due to her brother in law. Even his sister turned down from matrimonial home about one month prior to the present incident but she was taken back from the stand. Whatever his sister used to earn by working in kothis as part time maid, her in laws used to take away all her earnings and his brother in law used to beat her after consuming liquor. In cross examination, he has stated that his sister used to be harassed by her husband and other in laws for demand of money. Accused Nitin was after his sister to have relations with him regarding which she had disclosed to his mother and father. Two days prior to the present incident, his sister Sonia alongwith her husband had visited their house and then she had disclosed the aforesaid facts to his parents and at that time, he was also present there besides her husband. On 18.11.2010 he was not aware about the illicit relations between Nitin and his sister. Vol. When his sister visited their house alongwith her husband and informed them that accused State Vs.Nitin FIR no.137/10 Page No. 6 of 47 Nitin wanted to have relations with her, at this, her parents convinced his sister and her husband that accused would be married within few days and then everything would be alright and that they should not disclose these things to others to save their matrimonial life. He admitted that on 20.11.2010, roka ceremony of accused Nitin was scheduled with a girl residing at Karan Vihar, near Rohini regarding which he was told by deceased.
6. PW3 Jagmati is the mother of deceased and she has also deposed that her daughter used to work in kothis. She has stated that after the death of grandmother in law of her daughter, her daughter started going for working at kothis with Nitin. Achanak @ Phoni and inlaws used to harass her daughter for demand of money. Achanak also used to beat her and ask to bring money. She has deposed that on 17.11.2010 her daughter came to her house and asked for Rs.4000/ and told that she was being harassed for said amount. She gave Rs.2000/. She has further stated that her daughter told her that accused Nitin was keeping bad eye upon her and wanted to have illicit relations with her. She told her to remain strict by saying 'usko chappal maar do agar wo aisi harkat karta hai to'. On 18.11.2010, her husband was informed that her daughter had died. She alongwith her family members reached there. On being enquired from mother in law regarding death, she told her that her daughter Sonia and her sister in State Vs.Nitin FIR no.137/10 Page No. 7 of 47 law Jyoti were clearing the house and Sonia was on the Ist Floor while clearing the room and that she fell down from there due to giddiness. Her son made call at number 100. Police came and removed the dead body to hospital. Later she came to know that her daughter was killed by strangulation by Nitin and other family members. In cross examination, she has deposed that her daughter was mercilessly beaten by her mother in law, father in law, sister in law and brother in law. Her son inlaw arranged the medicine for her daughter so she did not take her to any doctor. She did not make any complaint in this respect to the police. She did not disclosed to the police regarding illicit relations of his deceased daughter with accused Nitin VOL. As her daughter had no such relations with the present accused. She denied the suggestion that accused Nitin has been falsely implicated by her just to take the revenge with him. She denied that her daughter had illicit relations with accused or that this is a false story of having illicit relations of deceased with Nitin. She cannot say whether she had gone to PS on 26.12.2010.
7. PW4 Dr. Deepa Sharma has deposed that on 18.11.2010 one patient namely Sonia was examined by her and she was found to be brought dead. The MLC is Ex.PW4/A. She has further deposed that on 26.12.2010, Nitin was medically examined and after examination his blood sample was preserved. The MLC is Ex.PW4/B. On State Vs.Nitin FIR no.137/10 Page No. 8 of 47 18.11.2010, she prepared the death report of Sonia which is Ex.PW4/C.
8. PW5 Sunhari has deposed that Reena is her youngest daughter and her marriage was fixed with Nitin i.e. accused, the roka of her daughter remained for about 2 years and the marriage was to be performed in Dec. 2010. The marriage of her daughter was not performed as they came to know that the elder bhabi of Nitin had died. Due to this reason, they did not continue the relation of her daughter Reena with accused Nitin. The house of accused Nitin was not having sufficient space and there were number of family members in their family and they did not find the family of accused Nitin as upright family.
9. PW6 ASI Jagdish Chander has deposed that on 18.11.2010, on receipt of DD no.13A he alongwith Ct. Neeraj reached at House No. A116/WZ148 Bihari Colony where one lady was found dead on bed at first floor. Insp.Ramesh and Inspector Investigation Jagpal Singh also reached there. He has further deposed that there was red mark on the chin of left side. He did not find any mark of struggle at the spot. Crime team was called and inspected the spot. No eyewitness was found at the spot. He has further deposed that statement of Shyam Lal Ex.PW1/A was recorded. He also recorded statements of Amarjeet State Vs.Nitin FIR no.137/10 Page No. 9 of 47 Singh and Jagmati Ex.PW2/C and Ex.PW3/A. The dead body was removed to hospital and he moved an application Ex.PW5/A1 for preservation of dead body. He has further deposed that on 19.11.2010, post mortem was got conducted. The deadbody was identified vide statements Ex.PW6/A and Ex.PW2/A. He moved an application Ex.PW6/B for conducting the post mortem. He prepared inquest papers, the death report is Ex.PW4/C, form 25.35 is Ex.PW6/D, brief facts are Ex.PW6/E, application for preservation of dead body is Ex.PW6/A1, MLC Ex.PW4/A, statements Ex.PW2/C and Ex.PW3/A, Ex.PW5/A and Ex.PW2/A. After post mortem, he handed over the dead body to relatives vide memo Ex.PW2/B. He has further deposed that after post mortem, the doctor handed over him the vaginal swab and vaginal smears in sealed parcel sealed with the seal of Deptt of Forensic Medicine, Safdarjung Hospital, New Delhi which was taken into possession vide memo Ex.PW6/F and deposited the same in malkhana. He has further deposed that on 26.12.2010, he joined the investigation with Insp. Jagpal Singh and went to the place of incident where site plan was prepared and family members of deceased were interrogated. He has deposed that accused was also interrogated thoroughly by Insp. Jagpal and he admitted his guilt. His disclosure statement Ex.PW6/G was recorded. He has further deposed that accused has disclosed that he had thrown the chunni from which he strangulated his bhabi Sonia under the staircase in a red colour cloth State Vs.Nitin FIR no.137/10 Page No. 10 of 47 bag and he also stated that he can get recover the same. He showed the place of his house and got recovered one red colour bag/thaila under the staircase that was the open place inside the house and after checking the said bag, one chunni of mehroon colour/dark brown base having black colour and khaki colour flowers was found in the said bag. It was sealed in a pullanda after keeping in a cloth bag with the seal of JPS and seized vide seizure memo Ex.PW6/H and seal after use was handed over to him. He has also deposed that accused was arrested vide memo Ex.PW6/J and his personal search was conducted vide memo Ex.PW6/K. Accused was taken for his medical where his blood sample was taken by doctor and the same were taken into possession vide seizure memo Ex.PW6/L. He has deposed that accused also pointed out the place of incident at Ist floor of the house. The pointing out memo is Ex.PW6/M. He returned to PS vide DD no.61B copy of which is Ex.PW6/N. He has also produced DD no.14A vide which registration of case was kept pending for want of cause of death. The copy of the same is Ex.PW6/P. The red colour bag is Ex.P1, sealing material is Ex.P2 and red printed dupatta(chunni) is Ex.P3. In cross examination, he has deposed that when he reached the spot, he did not see the goods in scattered condition. He had not seen the bedsheet as well as pillow in scattered condition. He made enquiries as to how this incident had taken place from the family members of accused but not recorded their statement. The family State Vs.Nitin FIR no.137/10 Page No. 11 of 47 members disclosed that she died due to fall from the bed. The house of accused was constructed on 50 sq.feet. There were one room and kitchen on the ground floor and same on first floor. He did not make any inquiry regarding the illicit relations of accused with deceased from neighbourhood. The family members did not disclose that she was having illicit relations with Nitin. He cannot tell the number of house which was taken by the accused on rent but same was situated in the same gali. Call was made by the father of deceased and he made complaint that his daughter was murdered due to snatching her earning by the husband, in laws and other family members. He notice ligature marks on the neck of deceased and photographs of deceased were arranged by crime team and there were five photographs of deceased Ex.PW17/A1 to A4. When he saw the dead body of deceased he had also noticed that neither her tounge came out from her mouth and nor her eyes were open.
10. PW7 Dr. Abhishek Yadav has deposed that on 19.11.2010 he conducted the post mortem on the dead body of Sonia on receipt of inquest papers Ex.PW6/B to E, Ex.PW6/A1, Ex.PW5/A, Ex.PW2/C, Ex.PW3/A, Ex.PW6/A, Ex.PW2/A, Ex.PW1/A, & Ex.PW6/A. The post mortem report is Ex.PW7/A. He opined that time since death was about one day and cause of death was asphyxia due to antemortem strangulation of neck by ligature material. He has further State Vs.Nitin FIR no.137/10 Page No. 12 of 47 deposited that on 7.1.2011 application for seeking subsequent opinion was received alongwith one parcel duly sealed with seal of JPS containing ligature material and copy of PM report. On 8.1.2011 he opened the parcel and found containing a red bag in which there was a printed red chunni and he opined that asphyxia in this case could be due to antemortem strangulation and could be possible with the ligature material submitted to him. The subsequent opinion is Ex.PW7/B. In cross examination he has stated that he found external injuries on the body of deceased as mentioned in PM report under the column external injuries showing the application of human force. The cause of asphyxia was due to constriction of neck by ligature material.
11. PW8 Ct.Neeraj is the witness who reached at the spot with IO ASI Jagdish. He has stated that a dead body of lady was found there whose name revealed as Sonia. Crime team also came at the spot. ASI Jagdish recorded the statement of parents of deceased and dead body was taken to Mortuary.
12. PW9 SI Sudesh Pal has deposed that he received PCR call at about 2.45 p.m that they are standing near WZA186 and their girl has been killed. He recorded this information in DD no.13A which is Ex.PW9/A. He informed SHO and SHO handed over investigation to Insp.Jagpal who went to the spot.
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13. PW10 Insp.Ramesh Chander has deposed that on 18.11.2010 he sent ASI jagdish with Ct. Neeraj to the spot and thereafter he also went there. He found a dead body lying in a room. On inspection of the dead body there was no struggle marks on the dead body. He notice one red colour mark on the neck of the deceased just below the chin. He called Insp.Jagpal, ACP Jaldhari Lal Meena. He made local inquiries. The dead body was sent to mortuary of RML Hospital. On 19.11.2010, post mortem was conducted and local enquiries were still going on. On 21.12.2010 post mortem report was received and on the basis of local enquiries they registered a case on the suspected family members.
14. PW11 Ramesh Nambardar has deposed that deceased was working as sweeper in different houses. He came to know about death of deceased after two days of her death and he shocked and could not believe on the death. He has further deposed that on the day of death of deceased, there was lagan ceremony of his son Jagjit at his residence and some food was taken by the family members of deceased from his house in the morning and marriage of his son was solemnized on 23.11.2010. He was declared hostile by the prosecution and cross examined by Ld. Addl.PP for the State wherein he has admitted that on 18.11.2010 deceased Sonia came to his house in the State Vs.Nitin FIR no.137/10 Page No. 14 of 47 morning hours alongwith accused Nitin who is her brotherin law/devar. He denied the suggestion that he had stated to the police that accused Nitin had murdered deceased Sonia.
15. PW12 Umesh Chand has deposed that on 18.11.2010 he was sitting outside Sai Baba Mandir and at about 10/10.30 a.m, he saw deceased Sonia returning to his home after completion of her work from village Dasgraha. At that time she was having some food in her hand. Ram Niwas told him that she had fallen from the bed. He is not aware about marriage of Nitin. He did not come to know about cause of death of deceased later on. He was also declared hostile by the prosecution and cross examined by Ld. Addl.PP for the State wherein he has denied the suggestion that he was aware that the marriage of Nitin was fixed in those days. He denied that he came to know that accused was having illicit relations with deceased. He denied that he came to know that deceased was trouble for the marriage of accused.
16. PW13 HC Yogender has deposed that on 18.11.2010, at about 2.33 p.m, an information was received from mobile no.9210573006 regarding murder near School Bihari Colony. This information was recorded in form which is Ex.PW13/A.
17. PW14 HC Rajender Kumar has deposed that he received State Vs.Nitin FIR no.137/10 Page No. 15 of 47 sealed pullandas from MCHM and taken the same to Forensic Deptt of Safdarjung Hospital. On 31.01.2011 he collected the exhibits from MHCM and deposited in FSL.
18. PW15 Ct.Hardeep has deposed that he went to spot on 1.3.2011, took the measurement and prepared scaled site plan which is Ex.PW15/A.
19. PW16 SI Virendra Kumar is the incharge of Mobile Crime. He inspected the spot and prepared the report which is Ex.PW16/A.
20. PW17 Ct. Arun Kumar has deposed that he was photographer in mobile crime team and on 18.11.2010 he visited the spot with SI Virendra Kumar and took five photographs out of which one was washed out. The four photographs are Ex.PW17/A1 to A4. The negatives are Ex.PW17/B1 to B4.
21. PW18 HC Ashok has deposed that on 25.12.2010 he recorded FIR no.137/2010 copy of which is Ex.PW18/A. He made endorsement Ex.PW18/B. The copies of FIR were sent to Ilaqua Magistrate and Sr.Police Officers through special Messanger. The DD entries for recording FIR are DD no.28A, 2A are Ex.PW18/C and D. State Vs.Nitin FIR no.137/10 Page No. 16 of 47
22. PW19 M.N.Vijayan has deposed that he brought the customer application in the name of Achanak, application is Ex.PW19/A & ID proof is Ex.PW19/B. He also brought the computerized call details which are Ex.PW19/C and ID Chart is Ex.PW19/D.
23. PW20 Ct.Vinay Kumar has deposed that he went to Safdarjung Hospital for obtaining subsequent opinion. He brought the subsequent opinion of the doctor and deposited the case property with opinion in the Malkhana.
24. PW21 HC Ashok Kumar has deposed that he was working as MHCM and he made entry no.1503 Ex.Pw21/A, entry no. 1600 Ex.PW21/B regarding deposit of case property in malkhana. He has further deposed that on 7.1.2011 case property i.e. chunni was sent to Safdarjung Hospital through HC Rajinder vide RC no.1/21. On 29.1.2011, the exhibits were sent to FSL. The copy of RCs are Ex.PW21/C and D and copy of acknowledgement is Ex.PW21/E.
25. PW22 Ct.Sohan Pal has deposed that he had taken the copies of FIR to the residences of area MM and Sr. Officers.
26. PW23 Insp. Jagpal Singh has deposed that on 18.11.2010 State Vs.Nitin FIR no.137/10 Page No. 17 of 47 on receipt of DD no.13A Ex.PW9/A he reached at the spot where a lady was lying dead whose name revealed as Sonia. He found reddish spot on the left side below chin on her face. No struggle marks were found on the spot by him. Crime team came and took photographs. The report is Ex.PW16/A. Inquest proceedings were conducted by ASI Jagdish. After registration of case on 26.12.2010, investigation was handed over to him. He collected the inquest papers. He prepared the site plan and interrogated the suspects. He has deposed that accused Nitin admitted his guilt about murder of his bhabi as she was becoming obstruction in his marriage fixed for 20.12.2010. He was arrested vide memo Ex.PW6/J and his personal search was conducted vide memo Ex.PW6/K. His disclosure statement Ex.PW6/G was recorded. The accused pointed out the place of incident vide memo Ex.PW6/L. He has further deposed that accused pointed out the place from where he got recovered the chunni. The pointing out cum seizure memo Ex.PW6/H. Medical examination of accused was conducted vide MLC Ex.PW4/B and blood sample of accused were taken and seized vide memo Ex.PW6/L. The case property was deposited in malkhana. He has further deposed that on 7.1.2011, recovered chunni of deceased was sent to Autopsy surgeon for subsequent opinion vide application Ex.PW23/A. The opinion received is Ex.PW7/B. He has further deposed that on 31.1.2011 the clothes of accused as well as vaginal swab of deceased with blood sample of accused were sent to State Vs.Nitin FIR no.137/10 Page No. 18 of 47 FSL. Sec.498A was removed as no evidence was found by him. PCR form is Ex.PW13/A. He got prepared the scaled site plan Ex.PW15/A. He sent to exhibits to FSL and report of FSL is Ex.PW23/B. He prepared the rough site plan on 26.12.2010 which is Ex.PW23/C. He collected copy of DD no.8A which is Ex.PW23/D. He identified the chunni Ex.P3 and pink colour bag Ex.P1. In cross examination, he has deposed that he reached at the spot at about 3.30 p.m. At that time 57 family members were present outside the place of incident. When he reached the spot, accused Nitin was not present there at that time. They tried to interrogate the public persons but none was ready to disclose about the incident. The neighbour were also interrogated but they did not give any clue. He interrogated the husband of deceased but his statement was not recorded. The incident took place in constructed house on plot of 12 and half feet. At the ground floor of the said house, accused Nitin alongwith his sister Jyoti was residing where incident took place at first floor. He admitted that Reena is the daughter of Om Prakash and Sunheri. The accused was arrested on 26.12.2010 after about one month and 8 days later of incident. He denied the suggestion that accused Nitin has been falsely implicated in this case. He denied the suggestion that accused gave his confessional statement under the pressure of police. He denied the suggestion that the chunni has been falsely planted upon accused later on.
27. The evidence against the accused was put to him in his State Vs.Nitin FIR no.137/10 Page No. 19 of 47 statements recorded u/s 313 Cr.P.C in which he has pleaded his innocence and deposed that he is innocent and he has been falsely implicated in this case. Accused opted to lead defence evidence but later did not examine any witness in his favour. Thereafter, the case was fixed for final arguments.
28. I have heard the Ld.counsel for the accused as well as Ld. Addl.PP for the State. Ld. Counsel for the accused has submitted that the accused has been falsely implicated in this case on the basis of false and concocted story. He has drawn the attention of the court on the FIR and stated that no investigation was carried out regarding the allegations made in the FIR. Ld. Counsel for the accused has drawn the attention of the court on the statement of PW1 Shyam Lal, PW2 Amarjeet and PW3 Jagmati and their cross examinations and stated that the illicit relationship have been stated to be before 23 days earlier of incident and therefore they are falsified being concocted and this fact is clear from statement of PW2 who has stated that he was informed about illicit relationship by the SHO. It is submitted that even PW3 has denied about illicit relationships between accused and her daughter. The statements of the family members of accused Nitin have not been recorded and even the statement of husband of deceased has not been recorded by the prosecution in this case. It is submitted that there is in inordinate delay in recording the present case FIR as State Vs.Nitin FIR no.137/10 Page No. 20 of 47 the incident had taken place on 18.11.2010 while the present case was registered on 26.12.2010. Ld. Counsel has stated that the recovery of chunni is shown to have been effected from the house of accused but no family member of any public persons from the locality has been associated in investigation. Ld.counsel has further submitted that the deceased is alleged to have been strangulated but as per deposition of witnesses no struggle mark was found at the site which indicate that the deceased was not murdered but she might have strangulated herself. It is not clear from the statement of IO that how he got suspicious about the accused of having illicit relationship with the deceased as no statement of any family member or neighbour was recorded. It is further argued that the FSL result also not connect the accused with the present case incident. It is stated that the FSL result/MLC do not indicate that there was physical relation between deceased and accused before incident and thus confession of accused is not supported by medical evidence. It is submitted that the prosecution has failed to prove its case at every nook and corner and therefore the accused may kindly be acquitted.
29. On the other hand, Ld. Addl.PP for the State has drawn the attention of the court on the statement of witnesses and stated that it can be inferred from the statements that there was illicit relations of deceased and accused and that because deceased was not letting State Vs.Nitin FIR no.137/10 Page No. 21 of 47 accused married, he committed her murder. Ld. Addl.PP has drawn the attention of the court on the post mortem report and stated that it clearly stated that seminal discharge was present in the vagina which indicate that accused and deceased had physical relations before the present case incident. It is stated that deceased was obstruction in the marriage of accused and therefore he killed her. Ld. Addl.PP submitted that accused may kindly be convicted.
30. In the overall analysis of the testimonies of all the witnesses it is revealed that this case was registered on the basis of statement Ex.PW1/A of Shyam Lal. He is father of deceased and he passed on information that his daughter has been killed. The said information was recorded in DD no.13A and thereafter in Form I Ex.PW13/A. The prosecution has also examined PW2 Amarjeet Singh, brother of deceased, PW3 Jagmati, mother of deceased, PW11 Ramesh Nambardar and PW12 who are locality persons. But none of the PWS have witnessed the presence case incident. PW1 to PW3 reached at the spot afterwards. PW11 Ramesh Nambardar and PW12 Umesh Chand are alleged witnesses of last seen. From the testimonies of all the witnesses adduced by the prosecution in this case, it is revealed that none of the witnesses had seen the present case incident with their own eyes. In this case, no one had seen the accused committing the crime. So, this case depends on circumstantial evidence. State Vs.Nitin FIR no.137/10 Page No. 22 of 47
31. It is settled law that in case of circumstantial evidence, the circumstances from which the conclusion is to be drawn are not only to be fully established but also that all the circumstances so established should be of conclusive nature and consistent only with the hypothesis of guilty of the accused. Those circumstances should not be capable of being explained by any other hypothesis excepting the guilt of the accused and the chain of evidence must be so complete so as not to leave any reasonable ground for being consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not mere 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 evidence least suspicion takes the place of proof. It has been observed by the Apex court in Tanviben Pankaj Kumar Devtia Vs. State of Gujrat 1997(2) CC cases SC 98 that court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof for some times unconsciously it may happen to be a short step between moral certainty and legal proof it has been indicated by the court that there is a long mental distance between may be true and must be true and the same divides conjectures from sure conclusions. Our Hon'ble High court of Delhi in Raj Mani Vs. State has held that where the evidence of last seen together specially considering the evidence of the State Vs.Nitin FIR no.137/10 Page No. 23 of 47 PWS cannot be said to prove with reasonable certainty that the circumstances of last seen together has been established beyond a shadow of doubt by the prosecution, the state of circumstances of last seen together being not free from suspicion. No finding with regard to the proof of circumstances of last seen together can be recorded.
32. In Sharad Birdichand Sarda Vs. State of Maharashra, AIR 1984 S.C 1622, the law relating to circumstantial evidence has been discussed as under : 'A closed analysis of these decisions would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) The circumstances from which the guilt is to be drawn should be fully established.
It may be noted here that this court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this court in 'Shivaji Sahabrao Bobade and Anr. Vs. State of Maharashtra' where the following observations were made: Certainly, it is a primary principle that the accused must be and not merely may be guilt before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusion'. (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 explained on any other hypothesis except that the State Vs.Nitin FIR no.137/10 Page No. 24 of 47 accused is guilty.
(3) The circumstances should be of a conclusive nature and tendency (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused These five golden principles, if we may say so, constitute the Panchsheel of the proof of a case based on circumstantial evidence.
33. Reverting back to the facts of the present case, the following can be the circumstances for linking accused persons with the present case crime.
LAST SEEN
34. In this case, first the prosecution has to establish the presence of accused at the spot with deceased. To prove this aspect, the prosecution has examined PW11 Ramesh Nambardar who has stated that deceased was working as sweeper in different houses in village Dasghara and the deceased father in law's name is Chillu and her husband name is Nitin. He came to know about the death of deceased after two days of her death and he shocked and could not believe on the death of the deceased. He has further deposed that on the day of State Vs.Nitin FIR no.137/10 Page No. 25 of 47 death of deceased i.e.18.11.2010, there was lagan/baan ceremony of his son Jagjit at his residence and some food was taken by the family members of the deceased from his house in the morning hours and the marriage of his son was solemnized on 23.11.2010. He was declared hostile and cross examined by the Ld. Addl.PP for the State wherein he has stated that it is correct that on 18.11.2010 deceased Sonia came to his house in the morning hours alongwith accused Nitin who is her brother in law/devar. He denied the suggestion that he had stated to the police that accused Nitin had murdered deceased Sonia.
35. PW12 Sh Umesh Chand has deposed that on 18.11.2010 he was sitting outside Sai Baba Mandir in his colony. At about 10/10.30 a.m, he saw that deceased Sonia was returning to her home after completion of her work from village Dasghara. At that time she was having some food in her hand. Ram Nivas told him that she had fallen from the bed. He know accused Nitin present in the court. Deceased was his bhabi. He is not aware about the marriage of accused Nitin. He did not come to know about the cause of death of deceased later on. He was also declared hostile by the prosecution and cross examined by the Ld. Addl.PP for the State wherein he denied the suggestion that he came to know that deceased was having illicit relations with accused. He also denied that he came to know that deceased was the trouble for the marriage of accused Nitin.
State Vs.Nitin FIR no.137/10 Page No. 26 of 47
36. With the development of law, the theory of last seen has become a definite tool in the hands of the prosecution to establish the guilt of the accused. Hon'ble Supreme Court has taken the consistent view that where the only circumstantial evidence taken resort to by the prosecution is that the accused and deceased were last seen together, it may raise suspicion but it is not independently sufficient to lead to a finding of guilt. In Arjun Marik v. State of Bihar [1994 Supp.(2) SCC 372], Hon'ble Supreme Court took the view that where the appellant was alleged to have gone to the house of one Sitaram in the evening of 19th July, 1985 and had stayed in the night at the house of deceased Sitaram, the evidence was very shaky and inconclusive. Even if it was accepted that they were there, it would, at best, amount to be the evidence of the appellants having been last seen together with the deceased. The Court further observed that it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record a finding that it is consistent only with the hypothesis of guilt of the accused and, therefore, no conviction, on that basis alone, can be founded.
37. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. But this State Vs.Nitin FIR no.137/10 Page No. 27 of 47 theory should be applied while taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen.
38. In the present case, PW12 Umesh has stated in his statement that at about 10/10.30 a.m he saw deceased Sonia returning to her house after completion of her work from village Dasghara and at that time she was having food in her hand. He did not state as to whether accused Nitin was with her at that time or not. He has also not stated that he saw Nitin with deceased Sonia at any point of time on 18.11.2010. PW11 Ramesh has stated that on 18.11.2010 some food was taken by the family members of deceased from his house in the morning hours but he did not state that deceased Sonia had taken the food on 18.11.2010 from his house. He did not state anything against the accused in the examinationinchief. However, after being declared hostile by Ld. Addl.PP, he admitted the suggestion put by the Ld. Addl.PP in affirmative that it is correct that on 18.11.2010 deceased Sonia came to his house in the morning hours along with accused Nitin who is her brotherinlaw/devar. Though PW11 has stated that deceased Sonia and Nitin had come to his house in the morning hours but he has no where stated that he saw both Nitin and Sonia going together from his house. As far as the statement of PW12 Umesh Chand is concerned, he has also stated that he saw Sonia returning to State Vs.Nitin FIR no.137/10 Page No. 28 of 47 her home after completion of her work from village Dasgharra which means that Nitin did not come with Sonia to her house. Considering the evidence, it has not come in evidence that as to when accused Nitin returned to his residence on that day. Deceased and accused were seen at the house of PW11 in the morning hours but thereafter there is no evidence that as to when accused Nitin left the said place for his house. In consideration of the evidence deceased Sonia came to her home alone. No one has seen accused coming to his house. Even there is no evidence as to when accused has left the house of PW11 Ramesh where the function of lagan ceremony was going on. In consideration of the evidence on file, there is no evidence that deceased and accused were seen together at their home on 18.11.2010 at about 11.00 a.m or that they returned from the house of PW11 together. In my view, last seen is absent in this case.
ILLICIT RELATIONS BETWEEN ACCUSED AND DECEASED/DNA EXAMINATION
39. Pw1 Shyam Lal has stated that accused used to accompany his deceased daughter to her work place at kothis at the behest of his parents. He has stated that his daughter told them that accused Nitin was keeping bad eye on her and wanted to have illicit relations with her. At, this, they tried to made understand his daughter and sonin law and further told her to remain strict with him i.e. Accused Nitin by saying 'usko chappal maar do agar wo aisi harkat karta hai to'.In State Vs.Nitin FIR no.137/10 Page No. 29 of 47 cross examination he has stated that upto 28.11.2010 it was not in his knowledge that his daughter had illicit relations with accused Nitin. He also admitted that no conversation took place between him and his daughter on 16th. In examination in chief, PW1 has stated that his daughter had come to his house on 16th which he also admits in cross examination but in cross examination he has stated that no conversation took place on that day while in examination in chief he has stated that his daughter told him that accused Nitin was keeping bad eye on her. He has specifically admitted in cross examination that upto 28.11.2010 he was not aware about illicit relations of his daughter with accused Nitin. From his admission it is clear that he came to know about illicit relations on 28.11.2010 i.e. after death of deceased Sonia.
40. PW2 Amarjeet has deposed that later he came to know that accused Nitin had illicit relations with his sister Sonia and when the marriage of Nitin was settled with some other girl, he got scared that the girl to whom he intended to marry and her parents might not come to know about his illicit relations with his sister. In cross examination he has stated that accused Nitin was after his sister to have relations with him and his sister disclosed to his parents when she came two days prior to the incident. He was also present there besides her husband Achanak@ Phoni. It means that she told about demand of State Vs.Nitin FIR no.137/10 Page No. 30 of 47 accused Nitin in front of PW2 Amarjeet but in examinationinchief he has stated that later he came to know about illicit relations, means he came to know about illicit relations after death of deceased Sonia. This fact is clear as he has further state in cross examination that on 18.11.2010 he was not aware about the illicit relations between accused and his sister.
41. PW3 Jagmati has stated that on 17.11.2010 her daughter with her husband visited their house and she told that Nitin used to keep bad eyes upon her and she told her to be strict. PW3 has stated the dated as 17.11.2010 while PW1&2 have stated it to be 16.11.2010 when Sonia came to their house. So, PW1,2&3 have given contradictory statements regarding coming of their daughter to their house before her death. In cross examination she has stated that she did not disclose to the police regarding the illicit relations of her deceased daughter with accused Nitin VOL. As her daughter had no such relations with the present accused. The statements of PW1,2&3 indicate that they were not aware about any illicit relations between accused and deceased.
42. PW5 Sunhari who is the mother of Reena with whom accused Nitin was to be married has also not stated that they came to know about illicit relations of accused with deceased. PW11 Ramesh State Vs.Nitin FIR no.137/10 Page No. 31 of 47 Nambardar and PW12 Umesh Chand are also silent in this respect.
43. The question is as to from where the story of illicit relations has come in the knowledge of police. As per statement of IO PW23 Insp.Jagpal Singh has stated that accused was interrogated thoroughly and he admitted his guilt about murder of his bhabi as she was becoming obstruction of his marriage to be fixed for 20.12.2010. The disclosure statement of accused is Ex.PW6/G. On perusal of the disclosure statement, it finds mention about illicit relations of accused with deceased. The prosecution has failed to examine any family member of accused. Even no statement of family members of accused was recorded by the IO. The husband of the deceased has also not been interrogated.
44. It is the case of the prosecution that before strangulation, accused and deceased had sexual intercourse. The post mortem report Ex.PW7/A confirms that seminal discharge was present in the vagina. PW7 has stated that vaginal swab was taken and smear was prepared. PW6 ASI Jagdish Chander has stated that after post mortem, the doctor handed over him the vaginal swab and vaginal smear in a sealed parcel with the seal of Department of Forensic Medicine and the same was taken into possession vide memo Ex.PW6/F which was deposited in the malkhana. PW14 HC Rajender Kumar had taken the State Vs.Nitin FIR no.137/10 Page No. 32 of 47 case property to FSL. I have perused the FSL result which is Ex.PW23/B wherein it has been stated that: Result of Examination Alleles of source of Ex.'4' (blood sample of accused Nitin) is not accounted in the alleles of source of Ex.1a (brassiere), Ex.1b (salwar) Ex.1c (lady's shirt) Ex.2a (cotton wool swabs) Ex.2b (cotton wool swab), Ex.2c (microslide) and Ex.2d (microslide). Conclusion The source of Ex.'4' (blood sample of accused Nitin) can be excluded for being responsible for the biological fluid i.e. seminal & Blood stains present on source of Ex.1a (brassiere), Ex.1b (salwar) Ex.1c (lady's shirt) Ex.2a (cotton wool swabs) Ex.2b (cotton wool swab), Ex.2c (microslide) and Ex.2d (microslide).
45. The result of examination and conclusion of exhibits is crystal clear that accused Nitin can be excluded for being responsible for seminal and blood stains present on the body of deceased. Thus, this circumstance do not connect accused Nitin to this present case offence. The story of prosecution that accused had physical relations prior to murder of deceased Sonia cannot be ruled out because as per FSL result he can be excluded for responsible for seminal discharge from the vagina of deceased Sonia.
State Vs.Nitin FIR no.137/10 Page No. 33 of 47 DELAY IN F.I.R.
46. The present case was registered on the statement of Shyam Lal, father of deceased. He passed on information to the police where DD no.13A was recorded. DD no.13A is Ex.PW9/A recorded by SI Sudeshpal.PW13 HC Yogender has deposed that after DD no.13A, further development was recorded in formI which is Ex.PW13/A. DD no.13A was recorded on 18.11.2010 at about 2.45 p.m wherein it has been informed that they are standing near WZA186 and that their daughter has been killed. The present case FIR was registered on 25.12.2010.
47. Ld. Addl.PP submitted that the DD no.13A was kept pending for want to PM report while Ld. Counsel for the accused submitted that the PM report was ready on the day of post mortem itself. PW6 has stated that registration of case was kept pending vide DD no.14A for want of cause of death. PW7 Dr. Abhishek Yadav has conducted the post mortem on the dead body of deceased on19.11.2010. He has nowhere stated as to when the post mortem report was made ready by him. I have perused the PM report Ex.PW7/A. At the back of report it is mentioned by SI Ramesh that he received the report on 21.12.2010. However, the report seems to have been prepared on 19.11.2010 as it was signed by Dr. Abhishek on the said date. In my view, there is laxity on the party of police official in collecting the Post Mortem State Vs.Nitin FIR no.137/10 Page No. 34 of 47 report.
48. However, as per the case of the prosecution, the statement of PW1 Shyam Lal was recorded on 18.11.2010. I have also perused his statement. There are allegations for demand of dowry in the statement as well as for harassment on account of snatching the money earned by the deceased. It is not that no case could have been registered on the statement of PW1 Shyam Lal on 18.11.2010/19.11.2010. It is open for the investigating officer to convert the sections as and when other evidences comes on record. But the Investigating Officer did not register any case instantly while there was sufficient evidence before him to register the case. The present case was registered on 25.12.2010 i.e. after about 37 days from the date of incident. The post mortem report is stated to have been collected on 21.12.2010 but despite that the case was registered on 25.12.2010. It clearly indicate that there is deliberate delay in registration of present case FIR.
RECOVERY OF CHUNNI
49. PW23 Insp.Jagpal Singh has stated that at the spot he prepared the site plan after inspection of the spot. Thereafter suspects were interrogated . Nitin, the accused admitted his guilt about murder of his bhabibhabi as she was becoming obstruction in his marriage. Accused State Vs.Nitin FIR no.137/10 Page No. 35 of 47 was arrested vide memo ex.PW6/J and his personal search was conducted vide memo Ex.PW6/K. He was interrogated and his disclosure statement was recorded which is Ex.PW6/G. Thereafter accused pointed out the place from where he got recovered chunni of deceased which was sealed with the seal of JPS and taken into possession vide memo ex.PW6/H.
50. PW6 ASI Jagdish has stated that disclosure statement of accused was recorded and he disclose that he has already thrown the chunni from which he strangulated his bhabi Sonia under the staircase in a red colour cloth bag and he also stated that he can get recover the same. He showed that place and got recovered one red colour bag from under the staircase that was the open place inside the house and after checking the bag one chunni of mahroon/dark brown base having black colour and khaki colour flowers was found which was seized vide memo ex.PW6/H.
51. In this case case, PW23 Insp. Jagpal Singh was the IO at the time when the alleged chunni was got recovered by accused. However, PW23 has not stated that the accused got recovered a red colour bag in which the alleged chunni was kept while as per the case of the prosecution, the chunni was kept in the bag. The said chunni is stated to have been recovered from the house of accused from under the State Vs.Nitin FIR no.137/10 Page No. 36 of 47 staircase. PW6 has admitted that it was an open place in the house. There would have been other family members of accused at the time of recovery of said bag containing chunni at the instance of accused. But the Investigating Officer has not joined any family member or any other public witness at the time of recovery of said chunni. In case titled Preetam Singh Vs. The State, 1998 (1) JCC (Delhi) 94 it is stated in head note that : Recoveries - Murder and theft case - Recoveries not made in presence of independent witnesses though available - Such recoveries cannot be considered by the court in evidence.
52. It is well settled law that recoveries effected from open space are not good recoveries. In the present case PW6 has admitted that the place of recovery was open place inside the house. It is clear that it was accessible to all the family members of accused. The bag is alleged to be of red colour which is visible from distance. IO has also not joined any independent witness or even family members of accused at the time of alleged recovery. The recovery of said red bag containing chunni has been effected after about one and half month from the date of incident. The recovery of chunni is, therefore doubtful.
NONTAKING OF FINGER PRINTS
53. As per the case of the prosecution, the accused got recovered the bag containing chunni. He is alleged to have kept it under State Vs.Nitin FIR no.137/10 Page No. 37 of 47 staircase. It was lying as it is for one and half month. It must be having finger prints of accused. Accused was also in custody. But prosecution has not tried to take the finger prints of accused as well as lift the same from alleged Chunni or bag to establish that the accused has used the said chunni to strangulate the deceased. This would have been the strongest circumstance to connect the accused with the present case crime. It has been stated in case law Satish Kumar Vs. State, 1995(34) DRJ (DB) in para 33 that : 'Now we are left only with the evidence with regard to the disclosure statement allegedly made by the appellant and the recovery of blood stained knife and blood stained shirt at the instance of the appellant. At the outset, we may mention that the group of the blood appearing on the said articles could not be deciphered by the experts. Only human blood was found on the said articles. So, strictly speaking, the said articles cannot be linked with the crime in question. Be as it may, both the SHO and SI Sher Singh and Shushil Kumar admitted that no efforts were made by the police to join any independent witnesses before recording the disclosure statement of Satish and before effecting the recoveries. It is not understood as to how the basic principle of investigation has been lost sight................. Merely having the brother of the deceased with them for this purpose does not remove the suspicion about the genuineness of disclosure statement and the recoveries allegedly effected on the basis of such disclosure statement. (Reliance can also be placed on Kedar Singh @ Kedari Vs. State, 1996 JCC 111, para 21.)
54. In my view the prosecution has miserably failed to prove this circumstance against the accused. Infact the prosecution has itself withheld this chain of circumstance in this case. SUBSEQUENT OPINION State Vs.Nitin FIR no.137/10 Page No. 38 of 47
55. Further PW7 Dr. Abhishek Yadav has given subsequent opinion regarding ligature material. He has stated that he opened the parcel after breaking the seal of JPS and found a red bag in which there was a printed red chunni of length 205 cms and breadth 90 cms. He gave subsequent opinion Ex.PW7/B. He also identified the red bag Ex.P1, and red printed dupatta Ex.P3. PW6 ASI Jagdish Chander has stated that after checking the said bag, one chunni of mehroon/dark brown base having black colour and Khakhi flower was found. When the parcel was opened, chunni of mehroon colour was taken out and exhibited as Ex.P3. PW23 Insp.Jagpal Singh has not deposed about recovery of bag. He deposed only about recovery of chunni. But he has not deposed the colour of chunni. At the time of examination of PW23 when the MHC(M) produced case property, a red colour chunni, pink colour bag were produced. As per evidence, sometime the colour of chunni is stated to be red and sometime mehroon and similarly sometime the colour of bag is red and sometime pink. There is confusion in the case property as to which was the exact colour of chunni and bag allegedly recovered at the instance of accused. PW7 Dr. Abhishek has examined red colour chunni while as per the statement of PW6 ASI Jagdish the colour of chunni which was recovered at the instance of accused was mehroon/dark brown base. It is not clear as to whether the chunni recovered was sent for subsequent opinion or it was some other chunni since there is State Vs.Nitin FIR no.137/10 Page No. 39 of 47 difference in colour as deposed by PW7 Dr. Abhishek Yadav and PW6 ASI Jagdish.
56. Further, PW7 has prepared subsequent opinion Ex.PW7/B wherein he has mentioned that asphyxia in this case could be due to antemortem strangulation and could be possible with the aforesaid ligature material submitted to him. Therefore, PW7 himself is not sure and certain as to whether the deceased was strangulated with the aforesaid chunni or not.
MEDICAL EVIDENCE
57. PW7 Dr.Abhishek Yadav has conducted the post mortem vide report Ex.PW7/A. The following external injuries were found on the body of deceased Sonia.
1. Reddish abrasion, crescentric shaped, 1.5x0.3 cm, horizontally placed, left breast, 10 cm above the lateral to nipple.
2. Multiple lacerations ranging in size 1/2x12x1/2 cm to 2x1x0.8 cm present over inner aspect of lower lip.
3. Reddish abrasion 2x1.5 cm, left neck, just below chin, obliquely placed.
4. Ligature mark is horizontally placed on the front and side of neck, interrupted. In midline, mark is 4x1 cm. On left side mark is going obliquely downward and backwards, 5 cm below ear, measuring 5x1.5 cm. On right side mark is 3 cm below angle of mandible 6.5x1 cm. Ligature mark is soft, faint, reddish in colour.
58. After conducting the post mortem, PW9 has given opinion State Vs.Nitin FIR no.137/10 Page No. 40 of 47 that cause of death is asphyxia due to antemortem strangulation of neck by ligature material, sufficient to cause death in ordinary course of nature. As per post mortem report, there were four injuries on the person of deceased. Injury no.4 was produced by ligature material. Injuries no.1 to 3 shows that there was injuries near breast, lower lip and chin of deceased. In strangulation, fracture of larynx and trachea is common, Injury to carotid arteries common, Injury to the muscles of the neck is common. PW7 has not given any opinion about larynx, trachea and carotid arteries. Further PW4 Dr. Deepa Sharma who examined the deceased has stated that she found old scar on left side of her chin and behind left ear lobe. Central haemotoma on forehead of 2cm x 1 cm(fresh). No fresh marks of any external injury seen. Therefore the statements of PW7 and PW4 are contradictory to each other regarding injuries on the person of deceased. MOTIVE
59. Ld. Counsel has argued that there was no motive for accused to kill deceased Sonia and therefore, the prosecution case be thrown on this ground alone. The most important aspect of the present case or for any criminal case is a motive. Undoubtedly, motive is an important aspect of every criminal trial. Sometimes motive plays an important role and becomes a compelling force to commit a crime and, therefore, motive behind the crime is a relevant factor for which State Vs.Nitin FIR no.137/10 Page No. 41 of 47 evidence must be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view of achieve that intention. In a case where there is clear proof of motive for the commission of the crime, it affords added support to the finding of the court that the accused was guilty of the offence charged with, though at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable. It was stated in case State of H.P. Vs. Jeet Singh 1999 (3) A.D.(S.C.) 89 (para33) that: 'It is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution failed to prove the precise motive of accused to commit it. It is almost an impossibility for prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended. ' In case law Nathuni Yadav S. State of Bihar, AIR 1997 S.C 1808 it was held that : 'Many murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable.' In case Ashok Kumar Vs. State of NCT of Delhi, 2012 (1) CC 59, it is held that : 'Criminal Trial Normally in circumstantial evidence based cases, the prosecution has to prove motive - Absence of motive in such State Vs.Nitin FIR no.137/10 Page No. 42 of 47 cases becomes material - corresponding motive is not important in the case of direct or ocular evidence.' In case law titled Pandra Khadia Vs. State of Orissa , 1992 CRI L.J 762 it is stated in headnote : 'Evidence Act. 1872, Ss. 3,8 - Penal Code (1860), Ss.299, 300, 302
- Murder - Proof of - Case based on circumstantial evidence - Motive of accused not proved by prosecution - Held, that since important circumstantial evidence had been disbelieved absence of proof of motive would weigh in favour of accused'.
60. On the aspect of motive, I have perused the evidence. The prosecution has alleged the motive to kill the deceased as she was becoming obstruction in his marriage. PW2 Amarjeet Singh has stated in cross examination that it is correct that on 20.11.2010 roka ceremony of Nitin was scheduled with a girl residing at Karan Vihar regarding which he was told by deceased. PW5 Sunhari is the mother of Reena with whom the accused was to be married. The marriage was to be performed in Dec.2010. She has stated that the marriage was not performed as they came to know that elder bhabi of Nitin had died. She has further stated that there was no sufficient space in the house and there were number of family members and they did not find the family of Nitin as upright family. She did not state anything against accused. As per the case of the prosecution, the motive to kill is stated to be illicit relations between accused and deceased and that deceased was becoming obstruction in the marriage of accused. However, prosecution has failed to produce any witness to state that deceased State Vs.Nitin FIR no.137/10 Page No. 43 of 47 was becoming obstruction in the marriage of Nitin. As far as illicit relations is concerned, it is alleged by prosecution that accused had sexual intercourse before killing deceased but the result of FSL is clear as it states that accused can be excluded for being responsible for the biological fluid i.e.seminal and blood stains present on the exhibits. Therefore, in my view the prosecution could not prove that deceased was becoming obstruction in the marriage or that there were illicit relations between them. I am of the view that there was no motive for accused to kill deceased Sonia.
61 In case law Padala Veera Reddy Vs. State of Andhra Pradesh, 1989 Supp (2) S.C.C 706 it is stated in head note that : 'Criminal Trial - Circumstantial evidence - Held, on facts, circumstantial evidence not sufficient to conclusively establish guilty of accused persons - Conduct of the accused must be seen in its entirety - Mere suspicion not enough - Penal Code, 1860, Secs. 302/34 and Sec. 498A - Evidence Act, 1972, Sec. 8. 'Evidence Act. 1972 - Sec.3 - 'Proved' - Conviction cannot be based on suspicion, however, strong it may be'.
It is stated in Ramreddy Rajesh Khanna Reddy Vs. State of A.P (SCC P.181 para 2627) that : 'It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however, grave it State Vs.Nitin FIR no.137/10 Page No. 44 of 47 may, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. The story of last seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration'.
In case Law Mubin Vs. State (Govt of NCT of Delhi), 2010 (2) JCC 934 it has been observed in the head note that : 'Penal Code, 1860 - Sec. 302 and 201 - Conviction based on circumstantial evidence - cannot be sustained when the prosecution has not been able to firmly establish the incriminating circumstances leading to irrefutable inference of guilty of accused - A possibility of someone else have committed the murder and dumping the dead body in gutter cannot be ruled out - Since a possibility of innocence of appellant cannot be ruled out his conviction and sentence cannot be upheld.
62. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. It is no doubt a matter of regret that a foul cold blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considering as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable State Vs.Nitin FIR no.137/10 Page No. 45 of 47 evidence before an accused can be convicted. It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused. In view of the above discussions as well as observation of the case laws, I am of the opinion that prosecution could not complete each and every chain of circumstances in this case without any reasonable doubt by leading cogent and reliable evidence.
63 It is well settled principle of law in AIR 2003 SC 3609, State of Punjab Vs.Karnail Singh that : "Golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the views which is favourable to the accused should be adopted.The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the acquittal of the guilty is not less than from the conviction of an innocent".
64. In view of my above discussions and the case laws cited above, I am of the opinion that the prosecution could not establish the complete chain of circumstances in this case while it is well settled principle of law that in a case of circumstantial evidence each and every circumstance has to be proved by the prosecution by leading legal, reliable and unimpeachable evidence. But I did not find any State Vs.Nitin FIR no.137/10 Page No. 46 of 47 legal, reliable and unimpeachable evidence in this case. I am unhesitatingly of the opinion that the prosecution has utterly failed in proving such chain of circumstantial evidence as would fasten the guilt on the accused leaving no room for doubt. So, the prosecution has failed to prove its case against accused Nitin u/s 302 IPC. I therefore give the benefit of doubt to accused Nitin and he is acquitted for the commission of offence punishable u/s 302 IPC.
65. Accused is in JC in this case. In view of provisions of section 437A Cr PC, he is directed to furnish the personal bonds in the sum of Rs.25,000/with one surety in the like amount.
File be consigned to record room.
Announced in the open Court on 20.10.2014.
(SURESH CHAND RAJAN) ADDL.SESSIONSJUDGE/ SPECIAL JUDGE(NDPS) (South West District) Dwarka Courts/ NEW DELHI State Vs.Nitin FIR no.137/10 Page No. 47 of 47