Delhi District Court
State vs . Sammin @ Shammin @ Salim on 23 July, 2010
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGE-II(NW): ROHINI COURTS : DELHI
Session Case No. 1125/09
Unique Case ID No. 02404R1286962005
State Vs. Sammin @ Shammin @ Salim
S/o Nabi Ahmed
R/o Jhuggi CN-487,
Near Pani Ki Tanki,
New F Block,
Raghubir Nagar, Delhi
FIR No. 997/04
Police Station: Rajouri Garden
Under Section: 302/452 Indian Penal Code
Date of Committal to Sessions Court: 6.4.2005
Judgment Reserved on: 25.5.2010
Last date for filing written synopsis: 4.6.2010
Judgment announced on: 9.7.2010
JUDGMENT
As per the allegations the accused Shamim @ Salim committed house trespass in the Jhuggi of Bhagwanti on the intervening night of 10/11.12.2004 after having made preparation for causing hurt to her and thereafter committed murder of Bhagwanti by strangulation.
BRIEF FACTS:
Case of the prosecution:
On 11.12.2004 at about 5:00 am an information was received vide DD No. 42 Police Post Raghubir Nagar that one person had entered in a Jhuggi and strangulated one lady who has expired. Pursuant to the said information SI Dinesh Kumar St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 1 of 36 reached at the spot and found the dead body of one lady whose name he later came to know as Bhagwanti and one Smt. Devli also present there who informed the police that one Shamim @ Salim who was having enmity with Bhagwanti and wanted her to vacate the said Jhuggi, has strangulated the deceased Bhagwanti and she herself witnessed the incident. On the basis of the statement given by Smt. Devli the present FIR was got registered. On 11.12.2004 the accused Sammin was arrested on the pointing out of Smt. Devli and charge sheeted.
CHARGE:
The record reveals that the Ld. Predecessor of this court after hearing arguments, settled the charges under Section 452 and 302 Indian Penal Code against the accused Sammin @ Salim to which he pleaded not guilty and claimed claimed.
EVIDENCE:
In order to prove its case the prosecution has examined as many as 17 witnesses.
Eye Witnesses/Public Witnesses:
The complainant Smt. Dewali has been examined as PW1. She has deposed that she and her husband were doing the business of T.V Covers at Teri and deceased Bhagwanti was her sister who was residing in a Jhuggi situated in front of the Jhuggi of accused Shamim and her father Kalu was residing in adjoining Jhuggi No.490. According to the witness on 11.12.2004 at about 4 or 4.15 A.M, she was going with her daughter to attend the call of nature and saw the light on in the jhuggi of Bhagwati and also saw the shadow of one person. She has deposed that when she went at St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 2 of 36 the Jhuggi of her sister Bhagwanti and removed the curtain from the door, she found accused Shamim @ Salim throttling the neck of Bhagwanti. He has put another hand on the mouth of her sister Bhagwanti while the wife of accused Shamin namely Beena had caught hold the hand of her sister and the brother-in-laws of accused were also present there. She has testified that she tried to catch hold of one of the brother-in-laws of Shamim, but he ran away after pushing her. PW1 has further deposed that accused persons along with their relatives had taken all the jewellery of her sister Bhagwanti. Her father who is also residing in the same vicinity came to the spot after hearing her cries but accused ran away after pushing her. She has also deposed that they tried to rub the hand and feet of Bhagwanti but there was no response so they picked her up and took her to the house of her father Kalu but she was already dead. She has also deposed that they tried their best to revive her and rang police but police came at about 6.00 AM. She has also proved her statement which is Ex.PW1/A and has deposed that there was a constant dispute between the deceased Bhagwanti and accused Shamim since the accused Shamim had asked deceased Bhagwanti to dismantle her Jhuggi in the front of his jhuggi. According to PW1, the dead body of Bhagwanti was sent for postmortem by police and thereafter they received the dead body of Bhagwanti and last rites were performed. She has further deposed that husband of Bhagwanti was missing for last eight-nine months from her death and on 11.12.2004, they saw accused roaming in the area when they caught hold of him and rang the police. She has proved that the police came and accused was arrested vide memo Ex.PW2/B and has deposed that the accused and his brother-in-laws threatened her pursuant to which St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 3 of 36 she had given a complaint against them to police but police had not taken any action, which complaint is pending before the Court of Ld. MM, Rohini Courts, since she had complained to the police against four persons but police had taken action only against accused Shamim. According to her, there was a silver mangalsutra on the neck of deceased which was seized vide memo Ex.PW1/C and has identified the Mangalsutra which is Ex.P-1. The witness has further deposed that the other jewellery items belonging to Bhagwanti i.e. nose-pin, silver buttons, two layer necklace silver, silver hasli, silver pajeb were found missing and there was ligature mark on the neck of deceased Bhagwanti. According to her, the postmortem on the dead body of the deceased was conducted in DDU Hospital after which she and her husband obtained the dead body of Bhagwanti and performed last rites.
In her cross-examination, she has admitted that the statement of her father was also recorded by the police. She does not know the number of Jhuggi of Bhagwanti since no numbers are provided to the Jhuggi. She has deposed that police first saw the dead body of Bhagwanti outside the Jhuggi of her father and Jhuggi of Bhagwanti is at some distance from the Jhuggi of her father. PW1 has also deposed that the Jhuggi of Bhagwanti is made up of plastic sheets which sheets were in torn condition. According to the witness, she had seen the shadow inside the Jhuggi and had even caught hold of accused the Shamim but he got himself released. She has claimed that accused Shamim and Bhagwanti were not in goods terms for last one year prior to the incident. PW1 has deposed that she had caught hold of Shamim by Baniyan which was torn but he got himself released and the St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 4 of 36 said torn Baniyan remained on the body of the accused. According to her, she along with Bhagwanti and other relatives had also approached police for informing them of the hot and cold war between accused Bhagwanti but their pleas fell on deaf ears. She is not aware as to who had removed the Mangalsutra from the dead body of the deceased but according to her, the same was not in the broken condition. She states that electricity is provided in the Jhuggi by a Contractor and also states that she had given the details of the jewellery items of Bhagwanti to the police. PW1 has deposed that the accused and his associates ran towards the opposite direction in the gali opposite to the side of the Jhuggi of her father and nobody from the Jhuggies came forward to catch hold of the accused as there was nobody residing in the nearby Jhuggies. According to her, since she had caught hold of two persons namely Beena and Saleem therefore, she could not chase the others and her father also did not chase the other assailants. She has further testified that there was a scuffle between her and her father on one side and accused and Beena on the other side in which process the accused Saleem and Beena managed to escape. According to her, in the said scuffle she had received some scratch mark and her hairs were pulled off but she had not shown these to the police. She has also deposed that nobody from the neighbourhood had come during the said scuffle and they had come only when the body of Bhagwanti was shifted to the Jhuggi of her father.
PW4 Kalu Ram is the father of deceased who has deposed that the deceased Bhagwanti was one of his six daughters who was married and having 5 children. He has deposed that the accused used to ask his daughter Bhagwanti to remove her Jhuggi St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 5 of 36 but his daughter did not agree and the accused used to threaten his daughter on this score and there were frequent quarrels over the issue of nali etc. and removal of Jhuggi. According to him, on 11.12.2004 at about 4.00/4.15 PM he heard the cries of his daughter Devli pursuant to which he got up and came out. He has deposed that he found a scuffle going on between his daughter Devli on one side and Salim and his wife Meena on the other side.
However, Salim and his wife got himself released from Devli and escaped. He has further deposed that Devli told him that she had seen the accused Salim @ Shamim pressing the mouth and neck of Bhagwanti in her Jhuggi on which he along with Devli went to the Jhuggi of deceased Bhagwanti and found that Bhagwanti was lying in her Jhuggi and there was no motion in her body. According to the witness, he and Devli lifted Bhagwanti from her Jhuggi and they brought her to their Jhuggi where they massaged her hands and feet and gave motion to her body but there was no breathing and there was also no movement in her body. According to PW1, they made a call to the police upon which police arrived at about 6.00 or 6.15 AM and police made inquiries and did some writing work and thereafter dead body was taken by the police. He has deposed that postmortem on the dead body of Bhagwanti was conducted and on 11.12.2004 itself accused Salim @ Shamim was apprehended by police from a place near Masjid. He has proved that the accused was interrogated by the police and the personal search of the accused was conducted vide memo which is Ex.PW4/A; arrested vide memo which is Ex.PW2/B; disclosure statement of the accused was recorded which is Ex.PW4/B and the pointing out memo which is Ex.PW4/C. The witness has further deposed that on 12.12.2004 he identified the St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 6 of 36 dead body of his daughter Bhagwanti in mortuary vide identification statement Ex.PW4/D. According to PW4, his daughter Bhagwanti used to wear gold nose ring, silver pajeb, silver buttons on her shirt, silver necklace in her neck which articles were found missing when they had gone to her Jhuggi. He has also deposed that daughter of Bhagwanti, namely, Komal who was aged about 3-4 years also used to wear a silver hasli around her neck which was also found missing after the incident. The said witness has not been cross-examined by the counsel for the accused.
PW5 Master Omi aged about 12 years is the son of the deceased Bhagwanti and is the eye witness to the incident. His statement was recorded by the court after questioning to the child witness and the court satisfied that the witness is able to understand the questions put to him and can very well answer the same effectively and rationally. Since the witness is less than 12 years of age, his statement is recorded by the court without oath wherein he has stated that he does not remember the date, month or year as they had no watch in their Jhuggi but it was night time when he saw Saleem and Meena present in their jhuggi along with their associates. According to him, he had seen that Saleem had gaged the mouth of his mother with one hand and with the other hand he was trying to strangulate her mother while Meena had caught hold of the hands of his mother. The witness has correctly identified the accused.
The said witness was cross examined by the Ld. Defence counsel at great length but he has stood by his statement in so far as the identification of accused Shammim and the role attributed to him is concerned.
St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 7 of 36 PW3 Prem has proved having identified the dead body of Bhagwanti and his statement to this fact was recorded by the IO which is Ex.PW3/A. He has further deposed that after postmortem the dead body of deceased was received by him vide receipt Ex.PW3/B after which they performed the last rites.
Medical Evidence:
PW10 Dr. Lalit Kumar has proved having conducted the postmortem examination on the body of deceased Bhagwanti on 12.12.2004. According to him, the dead body was sent by Inspector R.C. Ranga from police station Rajouri Garden and the dead body was identified by SI Dinesh Kumar and Constable Suman Singh. This witness has further deposed that body of the deceased was medium built and blackish in complexion; Rigor Mortis was seen absent in upper limbs and present in lower limbs;
postmortem staining was seen present on the back of the body on its dependent parts; age was seen flaccid and swollen and the lips were seen syanosed; the petecheal hemorrhage spots were seen on cheek and chin; eyes were seen partially open and the conjectiva of the eyes were seen normal and no hemorrhage is seen; Cornea of the eyes were seen hazy; Mouth was closed and the tongue was inside the mouth behind the teeth; the anterior part of the tongue was seen normal; Nails were cyanosed; No discharge of any kind was seen coming out from natural orifices; Left alae of the nose was seen cut through and through. (1 cm from the whole of nasal pin); No haematoma was found at left alae of the nose. The witness has proved that there was no visible external injury on any sign of struggle mark was seen anywhere on the body except one well defined ligature mark which was seen in the front of the neck situated 7 cm below the lower border of lower jaw in the mid St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 8 of 36 line of the body which ligature mark was seen going upward and backward on both the sides of the neck and was seen placed obliquely. The ligature mark was 9 cm X 0.4 cm on the left side of the neck starting from mid line in front of the neck and reaches 4.5 cm below left ear lobule, while it is 1 cm X 0.4 cm on right side of the neck starting from mid line upto 5 cm below on right side mastoid process just behind the back of right ear and the ligature mark was deep, narrow, well defined and the base of the mark was groved and the margin were seen raised; it was chocolate brown in colour, dried, hard and leathery and parchment like and there was no ligature material around the neck at the time of postmortem. Further, there was no abrasion or contusion mark near or around the ligature mark, mouth, nose, cheeks, lower jaw, forehead.
According to the witness, time since death was 30 to 32 hours and the viscera, blood and clothes were sealed and handed over to the investigating officer. The witness has proved his detailed report which is Ex.PW10/A. He has further deposed that on 3.3.05 Inspector R.C. Ranga Additional SHO from PS Rajouri Garden brought a sealed packet along with application having some queries which sealed packet was containing a Mangal Sutra Ring silver and black colour, beads which were seen put in double black colour thread. The mangal sutra was also seen having double row of beads and a locket in between. According to PW10, at the time of postmortem no mangalsutra or any other ligature material were seen tied around the neck. He has opined that the cause of death in this case was due to asphyxia as a result of strangulation, which report is Ex.PW10/B. PW10 has further deposed that the viscera of the deceased was chemically examined St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 9 of 36 and the common poison could not be detected in the exhibits 27/A (containing liver spleen) and 27/B (containing stomach and small intestine), which report is Ex.PW10/C. This witness was also cross examined by Ld. Defence counsel wherein the witness has admitted that he had not given any final opinion and that he could have given his opinion even prior seeing the chemical examiner report but since he had to rule out any possibility of poisoning before giving final opinion, he had not done so. According to him, if a person's neck is pressed by the hand there will be a mark of fingers and thumb and there may be a possibility that nail marks is there but in the present case these marks were not on the neck of the deceased. He denied the suggestion that he has prepared a report on the basis of inquest papers.
Official/ public witnesses:
PW2 HC Jagdish Prashad is the Duty Officer who has deposed that on the intervening night of 10/11.12.04 he was posted at PS Rajouri Garden and was working as Duty Officer from 1.00 AM to 9.00 AM. According to him, at about 8.05 AM he received one rukka brought by Ct. Parmal and sent by SI Dinesh Kumar, on the basis of which he registered FIR No.997/04 U/s 302 IPC, carbon copy of which is Ex.PW2/A. PW6 Ct. Suman Kumar has deposed that in the intervening night of 10/11.12.04 he was posted at Police Post Raghubir Nagar PS Rajouri Garden and was on emergency duty. According to him, at about 5 AM ASI Om Parkash received a call regarding murder of a person pursuant to which he along with ASI Om Parkash reached at the spot i.e. Jhuggi, Pani Wali Tanki, St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 10 of 36 Raghubir Nagar and after some time SI Dinesh Kumar along with Ct. Parmal came at the spot where a dead body was lying in the corner. He has deposed that the Investigating Officer informed the SHO and crime team after which Inspector Ram Chander Ranga came at the spot along with a constable and in the meanwhile Crime Team also reached at the spot. He has proved that on the instructions of Inspector R.C. Ranga, Crime Team had taken the photographs from different angles and Mangal Sutra of the deceased was kept in a pullanda which was sealed with the seal of DK and was taken into possession vide memo Ex.PW1/C which seal after use was handed over to him. According to PW6, SI Dinesh Kumar recorded the statement of Smt. Devli W/o Prem Singh which is Ex.PW1/A and made endorsement on the same which was handed over to Ct. Parmal for getting the case registered who went to police station for registration of the case. The witness has proved that he along with HC Umed took the dead body to mortuary DDU Hospital in TATA 407, where he got the dead body preserved and at about 1 PM inspector R.C. Ranga came at mortuary DDU Hospital along with the relatives of the deceased but doctor did not conduct the postmortem of the deceased. According to the witness, on the next day he along with Inspector R.C. Ranga reached mortuary DDU Hospital where the dead body was identified by Kalu Ram and Prem Singh and the statement regarding identification of dead body was recorded which are Ex.PW4/D and Ex.PW3/A. The witness has identified the Mangal Sutra in the court which is Ex.P-1. Nothing much has come out from the cross-examination of the witness.
PW7 Constable Satish has deposed that on 11.12.04 he was posted at Police Post Raghubir Nagar of PS Rajouri Garden St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 11 of 36 and reached the spot i.e. Tanki Wali Gali, Raghubir Nagar at about 10.35 am where Additional SHO Ram Chander Ranga, SI Dinesh and ASI Om Parkash met him. He has deposed that on the instructions of IO Inspector R.C. Ranga he along with Ct. Suman took the dead body to mortuary DDU Hospital in TATA 407 which was being driven by HC Umed Singh and the dead body was preserved in the hospital. According to him, due to holiday the postmortem of the dead body could not be conducted. He has further proved that he along with Inspector Ram Chander Ranga and ASI Om Parkash tried to trace the accused and they reached at bus stand route no.857 where at the instance of Kalu Ram accused Shamim @ Salim was arrested vide arrest memo Ex.PW2/B and personal search of the accused was taken vide memo Ex.PW4/A after which the accused made a disclosure statement. He has further proved that accused took them to Tanki Wali Jhuggi, Raghubir Nagar where accused also pointed out the place where he had committed the murder of Bhagwanti pursuant to which IO prepared the pointing out memo. The witness has also deposed that he along with IO took the accused to DDU Hospital and got him medically examined.
In his cross examination this witness has admitted that he had not made the departure on 11.12.04 when he left the Police Post Raghubir Nagar and states it took about 10 minutes to reach the spot. He has deposed that when they reached bus stand of route no.857 there were many public persons but the IO had not requested any public person to join the investigation who had gathered at the spot.
PW8 Ct. Parmar has deposed that on 11.12.2004 he was posted at Police Post Raghbir Nagar and on that day on St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 12 of 36 receipt of DD no. 43 he along with SI Dinesh Kumar and ASI Om Prakash and Ct. Suman reached at Jhuggi Pani Wali Tanki where a dead body was lying on the cot. He has deposed that many public persons gathered at the spot and SI Dinesh Kumar informed the Addl. SHO and called the crime team at the spot. According to him, the statement of Smt. Devli which is Ex.PW1/A was recorded in his presence on which the IO made his endorsement which was handed over to him for registration of the case. The witness has proved that he went to police station and after registration of the case he along with original rukka and carbon copy of FIR, came back at the spot and handed over the same to Addl. SHO Inspector Ram Chander.
PW9 Ct. Harpender has deposed that on 11.12.04 duty officer handed over copy of FIR for delivering the same to Metropolitan Magistrate. The witness has deposed that he accordingly went to Model Town and handed over the carbon copy of FIR at his residence and after handing over the same he came back to Police Station Rajouri Garden.
PW11 Inspector Davender Singh has deposed that on 11.12.2004 he was posted as Incharge Mobile Crime Team and he was called by ASI Om Parkash of Police Post Raghubir Nagar of Police Station Rajouri Garden and he along with crime team reached at spot i.e. Jhuggi Tanki Wali, Raghubir Nagar where on his instructions HC Vijay Kumar took photographs from different angles. According to him, no chance prints were found at the spot and has proved having prepared his report which is Ex.PW1/A. In his cross examination he has deposed that he had seen the dead body and the ligature marks on the neck of the dead body but he does not remember whether the ligature marks were St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 13 of 36 all along the neck or on a particular point. He has also deposed that deceased was having a Mangal Sutra on her neck but he does not remember its condition.
PW12 HC Amit Kumar is the MHCM who has deposed that on 12.12.2004 Inspector R.C.Ranga handed over one pullanda with the seal of DK and two pullandas with the seal of LKB, Civil Hospital, Delhi for depositing in the malkhana which were deposited by him in malkhana vide entry at serial no.5565 in register no. 19 copy of which is Ex.PW12/A. He has further deposed that on 17.01.05 on the instructions of IO Inspector R.C. Ranga he handed over two pullandas with the seal of LKB, Civil Hospital along with FSL form having same seal impression to Ct. Sanjay for depositing in CFSL office Kolkatta vide RC No.10/21. According to the witness, Ct. Sanjay got deposited the same in CFSL office Kolkatta and after depositing the same handed over the receipt on RC to him which was placed by him in RC book, copy of which is Ex.PW12/B. PW13 Ct. Sanjay has deposed that on 17.01.05 he was posted at police station Rajouri Garden. He has corroborated the testimony of PW12 to the extent that on the instructions of investigating officer MHC(M) handed over to him two pullandas sealed with the seal of LKB, sample seal alongwith FSL form for depositing in CFSL Kolkatta vide RC No.10/21 and same were deposited by him in CFSL Kolkatta. According to him, after depositing he obtained the receipt on RC and letter which were handed over to MHC(M). The witness has proved that as long as case property remained in his possession the same were not tampered with.
St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 14 of 36 PW14 HC Umed Singh has deposed that on 11.12.2004 he was posted at PS Rajouri Garden as a driver of Tata 407 bearing registration No. DL 1LD 5029. According to him, at about 6.00 a.m. he received a wireless message and was asked to reach Tanki Wali Jhuggi Raghubir Nagar pursuant to which he reached at Tanki Wali Jhuggi, Raghubir Nagar where IO Addl. SHO Ram Chander met him. He has proved having taken the dead body of Bhagwanti along with Ct. Suman to DDU hospital in Tata 407 where the dead body was got preserved in mortuary.
PW14-A (wrongly mentioned as PW14) SI Mahesh Kumar is the draftsman who has deposed that on 02.02.05 on instructions of Inspector Ram Chander, Addl. SHO PS Rajouri Garden, he reached the spot i.e. Jhuggi of Kishan Lal, Jhuggi Paani Ki Tanki Wali, Raghubir Nagar, Delhi where at the instance of Smt. Devli he prepared the rough site plan and took measurements. According to him, on the basis of the said rough notes he prepared scaled site plan which is Ex.PW14/A and after preparing the scaled site plan he destroyed the rough site plan and notes.
In his cross examination the witness has deposed that he reached at the spot at about 4.00 p.m. and remained at the spot for about 45 minutes. He has admitted that there is a wall of about 125 cm near the spot on north side and there was no exit or entry gate of this wall.
PW15 HC Vijay Kumar has deposed that on 11.12.2004 he was posted in Mobile Crime Team as photographer. He has proved that he along with Incharge Crime Team HC Davinder Singh and HC Ram Niwas and driver reached the spot i.e. Jhuggi of Bhagwanti, Paani Wali Tanki, Raghubir Nagar St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 15 of 36 where Addl. SHO PS Rajouri Garden met them. According to the witness, SI Davinder Singh reached the spot and HC Ram Niwas tried to develop the chance print and thereafter he took the 9 photographs from different angles. He has placed on record the negatives which are Ex.PW15/1 to Ex.PW15/9 and positives which are Ex.PW15/10 to 18.
PW16 SI Om Parkash has deposed that in the intervening night of 10/11.12.2004 he was posted at Police Post Raghubir Nagar Police Station Rajouri Garden and was was on emergency duty and on patrolling duty. According to him, at about 5.00 a.m. He was present at Ghora Wala Mandir where Ct. Om Parkash came to him and handed over DD No.42 to him after which he along with Ct. Suman reached at Jhuggi of Bhagwanti, Paani Wali Tanki, Raghubir Nagar where Kalu Ram father of deceased met them in the Jhuggi. Meanwhile SI Dinesh Kumar along with Ct.Parmar reached at the Jhuggi on Govt. motorcycle and Ct. Satish also came to Jhuggi and handed over DD No.43 to him. The witness has deposed that the complainant Devli came to jhuggi and told that she is the sister of deceased and was the witness of incident. PW16 has also deposed that SI Dinesh Kumar called the crime team at the spot pursuant to which Crime team reached at the spot after some time and inspected the dead body and took photographs of the dead body. He has further deposed that SI Dinesh recorded statement of Devli which is Ex.PW1/A and made his endorsement and same was handed over to Ct. Parmar Singh for registration of the case and after some time Ct. Parmar Singh along with Inspector R.C. Ranga reached the spot and prepared the site plan. According to the witness, deceased was having a Mangal Sutra in her neck which was taken St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 16 of 36 and kept in a pullanda and sealed with the seal of DK and taken into possession vide memo Ex.PW1/C. He has proved having written an application for preserving the dead body which was handed over to Ct. Suman and HC Umed and they took the dead body to DDU hospital and got the same preserved in hospital. The witness has further deposed that on 12.12.2004 Addl. SHO prepared inquest papers and filled form no.25.35 (1)(b) and he along with Inspector R.C. Ranga reached at DDU hospital where the dead body was identified by Kalu father of deceased and Prem brother in law of deceased vide statements which are Ex.PW4/D and PW3/A. According to the witness, after the postmortem dead body was handed over to legal heirs of deceased vide handing over memo Ex.PW3/B and when he along with Kalu Ram and Addl. SHO was coming back to Police Station Rajouri Garden, father of deceased pointed towards accused who was overpowered and arrested vide arrest memo Ex.PW2/B and personal search of accused was conducted vide memo Ex.PW4/A and accused made a disclosure statement which is Ex.PW4/B. PW16 has also deposed that accused took them to Jhuggi of Bhagwanti and pointed out the place where he had committed the murder of Bhagwanti vide pointing out memo Ex.PW4/C after which they came back to Police Station Rajouri Garden and the case property was deposited in Malkhana. According to PW16, thereafter he took the accused to DDU hospital for medical examination. The witness has duly identified the Mangal Sutra which is Ex.P1. The said witness has not been cross examined by the accused despite opportunity given.
PW17 Inspector Dinesh Kumar has deposed that on 11.12.2004 he was posted as Sub Inspector at Police Post St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 17 of 36 Raghubir Nagar and on receipt of DD no. 43 copy of which is Ex.PW17/A, he along with Ct. Parmal reached at Tanki Wali Jhuggi, Raghubir Nagar, Delhi where he found the dead body of one lady on the cot outside the Jhuggi No. CN-490. According to him, at the spot he also met ASI Om Prakash and Ct. Satish and on inspection there was no visible injury mark on the dead body. He has deposed that there was one Mangal Sutra with black thread in the neck of the dead body and also noticed ligature mark on the neck of the body after which he called the crime team who reached the spot and inspected the same. The witness has further deposed that in the meantime Addl. SHO Inspector Ram Chander also reached at the spot and the eye witness Smt. Devli met them. The witness has proved having recorded the statement of Smt. Devi which is Ex.PW1/A and made his endorsement on her statement which is Ex.PW17/A. According to him, the rukka was handed over to Ct. Parmal for getting the FIR registered at about 7:45 am. The witness has deposed that Inspector Ram Chander Ranga inspected the dead body and had put the Mangalsutra into a pullanda which was sealed with the seal of DK and seized the same vide memo Ex.PW1/C and seal after use was handed over to Ct. Suman. The witness has proved that Inspector R.C. Ranga prepared the site plan at the instance of Smt. Devli which site plan is Ex.PW17/B. He has identified the signatures of Inspector R.C. Ranga on the site plan. According to the witness, thereafter the dead body was sent to DDU Hospital mortuary through Ct. Suman. The witness has proved the proceedings conducted by Inspector R.C. Ranga who has now expired. He has proved the seizure memo of clothes and viscera of deceased Bhagwanti which is Ex.PW17/C; arrest memo of the accused Ex.PW2/B; disclosure St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 18 of 36 statement of the accused which is Ex.PW4/B; pointing out memo which is Ex.PW4/C; application for seeking opinion with regard to strangulation/ ligature mark which is Ex.PW17/D; request for postmortem which is Ex.PW17/E; brief facts which are Ex.PW17/F; dead body identification statement of Kalu Ram and Prem are Ex.PW4/D & PW3/A; death report i.e. form 25.35 which is Ex.PW17/G and receipt of handing over to the dead body which is Ex.PW3/B. In his cross-examination, the witness has deposed that he had received the copy of DD No.43 on 11.12.2004 at about 5.00 AM and ASI Om Prakash and Ct. Satish were already present at the spot when he reached at the spot. He has admitted that no statement of any person was recorded by ASI Om Prakash and Ct. Satish at the spot before their reaching though they had made enquiry at the spot. According to him, he had recorded the statement of the eye witness Smt. Devli which is already Ex.PW1/A, after arrival of the crime team but he does not remember the time. He has admitted that Smt. Devli did not refer to the role of the wife of the accused Shamim and also no allegations were made against Smt. Beena and her brothers. The witness has admitted that Smt. Devli did not inform him about the missing jewellery items of the deceased at the time he recorded her statement. PW16 has also admitted that in his presence, the statement of Kalu Ram was recorded by the investigating officer of this case, who joined later on after recording the statement of Smt. Devli. He is unable to tell whether Smt. Devli had pointed out the position of Smt. Beena and her brothers. He has admitted that in the site plan Ex.PW17/B the source of light has not been shown. The witness has further deposed that the seal after sealing St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 19 of 36 the Mangal Sutra was not handed over to any public witness but the same was handed over to Ct. Suman. He has also admitted that in the brief facts there is no reference of any assailant except Shamim who have committed murder and also there is no reference of Smt. Beena, the wife of accused Shamim and her brothers. He also admits that in death report, form no. 25.35, there is column regarding the description of each article found on or near the body and description of each article found on body and that there is no mentioning of any article in that column. The witness has denied the various suggestions put by the Ld. Defence Counsel.
Statement of the accused/ defence evidence:
After completion of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. wherein all incriminating evidence has been put to the accused which he has denied. He has stated that he is innocent and has been falsely implicated in the present case. According to him, Devli and her husband in connivance with Kalu Ram wanted to grab his Jhuggi and therefore, they have falsely implicated him in the present case.
FINDINGS:
I have gone through the evidence on record and also the written synopsis of arguments placed before me. I have also considered the oral arguments advanced before me. At the very outset I may observe that the accused had been playing hide and seek with the court for the last number of years and the record reveals that the material witnesses were rarely cross-examined on the same day and as a matter of practice they were being recalled St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 20 of 36 at later stages for their cross-examination. Even at the final stage, the accused at one point of time, submitted that he has no faith over his counsel and when the assistance of Sh. Deepak Sharma Advocate was provided to him as amicus, he re-engaged his earlier counsel and insisted upon his appearance. When the same was permitted on his request he again made a request for appointment of the same Amicus Curiae Sh. Deepak Sharma and therefore, this court was compelled to grant state assistance to the accused despite the fact that he had engaged his private counsel. The written synopsis of arguments have now been filed by the Ld. Amicus Curiae and also by the Ld. Addl. Public Prosecutor which I have duly perused.
Ld. Amicus Curiae for the accused has vehemently argued that PW1 Smt. Devli has made improvements in her deposition before this court court from her earlier statement given to the police and therefore, she is not a trustworthy witness. It is also argued that PW4 Kalu Ram is also not an eye witness and PW5 Master Omi is an interested witness being the son of the deceased and his testimony shows that he was tutored. Ld. Counsel has also argued that the prosecution has failed to bring any connecting evidence against the accused and the testimony of any public witness, who are allegedly the eye witness to the incident, does not inspire confidence. The Ld. Addl. Public Prosecutor on the other hand has argued that there is no scope for granting any benefit to the accused in view of the testimonies of the eye witnesses who had stood their ground during trial.
I first propose to deal with the allegations and averments individually in a tabulated form as under and comprehensively in the later stage of the judgment:
St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 21 of 36 Sr. Name of the Details of Deposition No. witness EYE WITNESSES/ PUBLIC WITNESSES
1. Smt. Devli She is the sister of the deceased Bhagwanti and is (PW1) the eye witness to the incident. She has deposed on the following aspects:
1. That on 11.12.2004 at about 4/ 4:15 am when she was going with her daughter to attend to the call of nature, she saw the shadow of one person in the Jhuggi of Bhagwanti.
2. When she removed the curtain of the door, she saw the accused Shamim @ Salim throttling the neck of his sister Bhagwanti and put his other hand on the mouth of her sister.
3. That the wife of the accused namely Beena had caught hold the hands of her sister and the brother in laws of accused Shamim were also present there. (This is an improvement to her earlier statement made to the police where she had not named Beena or the brothers in law of Shamim).
4. She tried to catch the accused but he ran away after pushing her.
5. That the accused also took away the ornaments worn by the deceased and her daughter. (This is an improvements to her earlier statement made to the police).
She has proved the following documents:
PW1/A Statement of Smt. Devli
PW1/B Arrest memo of the accused
PW1/C Seizure memo of Mangal Sutra
2. Master Omi He is the son of the deceased Bhagwanti and is
(PW5) also the eye witness to the incident and has proved
the following:
1. That Saleem had gagged the mouth of his
mother with one hand and with other hand he
was trying to strangulate his mother.
2. That his wife Smt. Beena and other persons were also present at the spot. (This is an improvement to his earlier statement made to the police).
3. That during this, his aunt Devli also came to the spot and tried to catch the accused but they ran away.
St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 22 of 36
3. Kalu Ram He is the father of the deceased Bhagwanti. He (PW4) has deposed on the following aspects:
1. That he was residing adjoining the Jhuggi of deceased.
2. That on 11.12.2004 at about 4/4:15 am he heard the cries of his daughter Devli on which he came out and found that a scuffle was going on between his daughter Devli on one side and Saleem and his wife on the other side.
3. Devli had told him that accused Saleem @ Shamim pressed the mouth and neck of the deceased.
4. That he and Devli lifted the deceased Bhagwanti from her Jhuggi and took her to his jhuggi and tried to revive and noticed that there were no motion in her body. He has proved the following documents:
PW4/A Personal search memo of accused
PW2/B Arrest memo of accused.
PW4/B Disclosure statement of accused
PW4/C Pointing out memo
PW4/D Statement regarding identification of
dead body
4. Prem (PW3) He is a formal witness who has identified the dead
body of Bhagwanti vide his statement Ex.PW3/B. He has also proved having received the dead body vide receipt Ex.PW3/B. MEDICAL WITNESSES
5. Dr. Lalit Kumar This witness has proved having conducted the (PW10) postmortem on the dead body of Smt. Bhagwanti.
He has deposed that all the glass bangles were intact and not broken and there was a cut through and through on the left alae of the nose. He has further proved that there was ligature mark of 9 cm X 0.4 cm on the right side of the neck starting from mid line in front of the neck and it reaches 4.5 cm below left ear lobule. According to him, the cause of death in this case was due to asphyxia as a result of strangulation. He has proved the postmortem report and his subsequent opinions as under:
PW10/A Postmortem report
PW10/B Opinion on the ligature mark
PW10/C Chemical viscera report
St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 23 of 36
POLICE WITNESSES (Proving investigations)
6. HC Jagdish He is a formal witness being the duty officer who Prashad (PW2) has proved having registered the FIR No. 997/04 copy of which is Ex.PW2/A.
7. Ct. Suman This witness was on emergency duty on (PW6) 10/11.12.2004. He has proved having received a call regarding murder on which he along with ASI Om Prakash reached at the spot. According to him, after some time SI Dinesh Kumar along with Ct. Parmar also reached at the spot where a dead body was lying. He has proved the following documents:
PW1/A Statement of Smt. Devli
PW1/C Seizure memo of Mangal Sutra
PW4/D & Statements regarding identification
PW3/A of dead body
8. Ct. Satish (PW7) He is a formal witness and has proved having took the dead body to mortuary of DDU Hospital along with HC Umed who was driving the Tata 407. He has also proved the arrest of accused Shamim.
9. Ct. Parmar This witness is also a formal witness and has (PW8) proved that on receipt of DD no. 43 he along with SI Dinesh Kumar and ASI Om Prakash and Ct.
Suman reached the spot. He has proved having taken the rukka to police station for registration of FIR.
10. Ct. Harpender He is a also formal witness who has had delivered (PW9) the copy of the FIR at the residence of Ld. MM.
11. Inspector He was the incharge of Mobile Crime Team and Devinder Singh has proved his report which is Ex.PW11/A. He (PW11) has also proved that the ligature marks were present on the neck of the dead body and she was having a mangal sutra on her neck. Nothing much has come out from his cross-examination.
12. HC Amit Kumar He is a formal witness being the MHC(M) who (PW12) has proved the various entries made by him in respect of the pullandas deposited in the Malkhana, which entries are Ex.PW12/A & PW12/B.
13. Ct. Sanjay He is a formal witness who has proved having (PW13) taken the sealed pullandas to be deposited in CFSL Calcutta.
St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 24 of 36
14. HC Umed Singh He is also a formal witness who has proved having (PW14) taken the dead body of Bhagwanti along with Ct.
Suman.
15. SI Mahesh He has been wrongly mentioned as PW14 and has Kumar proved having prepared the scaled site plan which (PW14-A) is Ex.PW14/A. Nothing much has come out of this cross-examination.
16. HC Vijay Kumar He is the photographer who has proved the (PW15) negatives which are Ex.P15/1 to 9 and the positives which are Ex.P15/10 to 18.
17. SI Om Prakash This witness had joined investigations with (PW16) Inspector R.C. Ranga. He has proved that pursuant to DD No. 42 he along with Ct. Suman reached the spot and in the meanwhile SI Dinesh Kumar along with Ct. Parmal reached there.
According to him, eye witness Smt. Devli came to the Jhuggi and got recorded her statement on which SI Dinesh made his endorsement and sent Ct. Parmal to police station for registration of the case. He has proved that deceased was having a Mangal Sutra in her neck which was taken into possession. On 12.12.2004 he along with Inspector R.C. Ranga reached at DDU hospital where the postmortem of the deceased was got conducted. This witness has also proved the arrested of the accused at the instance of father of the deceased. He has proved the following documents:
PW1/A Statement of Smt. Devli
PW1/C Seizure memo of Mangal Sutra
PW4/D & Statements regarding identification
PW3/A of the dead body
PW3/B Handing over memo of dead body
PW2/B Arrest memo of the accused
PW4/A Personal search of the accused
PW4/B Disclosure statement of the accused
PW4/C Pointing out memo
17. Inspector Dinesh He has proved having received the DD No. 43 Kumar (PW17) after which he went to the spot along with Ct.
Parmal where they found ASI Om Prakash and Ct. Satish. According to him, he inspected the dead body and notice ligature mark on the neck of the body and there was a mangal sutra with black thread in the neck of the deceased. He has proved St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 25 of 36 the proceedings conducted by Inspector R.C. Ranga (since expired) and has also proved the following documents:
PW17/A DD No. 43 PW1/A Statement of Smt. Devli
PW17/A1 Endorsement on the statement of
Smt. Devli
PW1/C Seizure memo of Mangal Sutra
PW17/B Site plan
PW17/C Seizure memo of clothes of
deceased
PW2/B Arrest memo of accused
PW4/B Disclosure statement of the accused
PW4/C Pointing out memo
PW17/E Request for postmortem
PW17/F Brief Facts
PW4/D & Statements regarding identification
PW3/A of dead body
PW17/G Death report i.e. Form 25.35
I now propose to analyze the aforesaid evidence. Firstly there can be no confusion to the eye witnesses with regard to the identity of the accused. He was previously known to the deceased and also the complainant/ eye witness Devli who is the sister of the deceased and also the resident of the same area and also to Kalu Ram the father of the deceased also residing in the same area and was already having a dispute with the deceased on account of the Jhuggi. The testimonies of PW1 Smt. Devli the eye witness and the sister of the deceased and PW5 Master Omi the son of the deceased who was hardly aged about 5 years at the time of incident are very specific and they have categorically identified the accused Shamim as the person who had been seen by them strangulating the deceased Bhagwanti.
St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 26 of 36 Secondly motive to the crime has to be gathered from the surrounding circumstances and such evidence should form one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive. In the present case it has come on record that the accused Shamim was having a dispute with the deceased Bhagwanti and had been harassing and pressurizing her to vacate her Jhuggi in respect of which the deceased and her sister (PW1-Devli) had allegedly approaching the police but to no avail. The existence of dispute on jhuggi is a fact duly admitted by the accused Shamim in his statement which heightens the probability of the accused Shamim having committed the offence.
Thirdly the information regarding the incident has been promptly given to the police by PW1 Devli who has specifically named the accused Shamim at the first instance on the basis of which the FIR was registered almost after one hour of the incident. The promptness in lodging report justifies the inference in the circumstance of the case that the report was not a concocted story. Where soon after occurrence FIR is lodged, it is difficult to St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 27 of 36 believe that false story was coked up. (Ref. Bhag Singh Vs. State of Punjab reported in 1971 Cr LJ 903).
Fourthly the cause of death as per the postmortem report duly proved by Dr. Lalit Kumar was asphyxia due to strangulation. PW10 Dr. Lalit Kumar has duly proved his report which is Ex.PW10/A and the subsequent opinion given by him which are Ex.PW10/B & Ex.PW10/C. Fifthly PW10 has Dr. Lalit Kumar ruled out the possibility of administration of any kind of poison and has also deposed that there was no impression of the beads on the neck and therefore, it is not possible for him to state as to whether the strangulation could have been by the Mangal Sutra which was worn by the deceased at the time of her death. The photographs which have been taken by the Crime Team and duly proved by PW15 HC Vijay Kumar, which photographs are Ex.PW15/11 to Ex.PW15/18, show the presence of Mangal Sutra around the neck of the deceased comprising of two layers of beads and double layer of thread. The said Mangal Sutra had been duly seized vide Ex.PW1/C and produced in the court and identified by the witnesses PW1-Devli, PW6-Ct. Suman, PW11-Inspector Devinder Singh and PW16-SI Om Prakash. The photograph Ex.PW15/18 clearly shows that strangulation mark around the neck of the deceased on both the sides, is compatible with the thread tied around the neck of the deceased supporting her Mangal Sutra. Inspector Devender, the Incharge of Crime Team who has been examined as PW11 has proved that when he visited the spot, he found the ligature marks present around the neck of the deceased. Ct. Suman (PW6) who had reached the spot along with other police party i.e. ASI Om Prakash (PW16) and Inspector Dinesh St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 28 of 36 (PW17) have proved the presence of ligature mark around the neck of the deceased and the seizure of the Mangal Sutra vide memo Ex.PW1/C which aspect finds a due corroboration in the testimony of SI Om Prakash (PW16) and Inspector Dinesh Kumar (PW17). The photograph Ex.PW15/12 shows that the thread of Mangal Sutra exactly matches with the ligature marks present on the neck of the deceased and it, therefore, stands established that the death had been caused on account of asphyxia due to strangulation caused by the Mangal Sutra and not from the side of the beads but from the side of the thread.
Sixthly the ocular evidence lead before this court is conclusive. PW1 Smt. Devli is the eye witness of the incident and was the sister of the deceased and has seen the accused strangulating the deceased Bhagwanti. According to her, she had even tried to stop the accused an aspect which finds a corroboration from the testimony of PW4 Kalu Ram who is the father of the deceased Bhagwanti and PW1 Smt. Devli, who has deposed that on 11.12.2004 in the morning he had heard the cries of his daughter Devli and when he came out he found that there was a scuffle going on between Devli on the one side and Saleem @ Shamim and his wife Meena-nee-Beena on the other side. No doubt PW1 and PW4 have tried to implicate the entire family of the accused and also improved upon their earlier statements made to the police but one thing on which both these witnesses have been consistent is the presence of the accused Shamim at the spot as the person who strangulated the deceased Bhagwanti. PW1 has deposed that it was the wife of the accused Shamim namely Beena @ Meena who had caught hold the hands of her sister Bhagwanti while the accused Shamim @ Saleem had strangulated her. She St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 29 of 36 has also alleged that they had committed the theft of jewellery articles of the deceased. PW1 Smt. Devli has improved her first statement made to the police which is Ex.PW1/A on the basis of which the FIR was registered wherein she has only named the accused Shamim @ Saleem and none else. Similar is the case with the witness Kalu Ram who has been examined as PW4 who has tried to implicated the wife of the accused namely Beena-nee- Meena whereas in his first statement made to the police, he has stated that there was a scuffle going on between the accused Shamim @ Saleem and her daughter Devli. He has not named Beena or any brothers of the accused. PW5 Master Omi is the minor son of the deceased aged about 10 years at the time of deposition, has corroborated the testimony of PW1 and has categorically stated that Saleem had gagged the mouth of his mother with one hand and with other hand the accused was trying to strangulate his mother whereas Meena @ Beena had caught hold of the hands of his mother. He has denied that the accused was framed at the instance of his Mausi Devli. In his first statement made to the police which is Ex.PW5/DA he has not named Beena and has corroborated the testimony of Smt. Devli to the extent that while Saleem was in the process of strangulating the deceased, Smt. Devli reached and on her raising hue and cry his maternal grand father Kalu Ram also reached and Saleem ran away. Minor discrepancies have been observed in the testimonies of the various eye witnesses on the aspect of time and presence of other persons. In this regard, the Hon'ble Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. In the judgment of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 30 of 36 0252 SC, the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses.
(a) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(b) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(c) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(d) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(e) In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
(f) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated lateron.
St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 31 of 36
(g) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.
No doubt in the present case, an attempt has been made by the eye witnesses to improve their earlier statements to implicate entire family of the accused but this certainly does not imply in any manner that the accused before this court is innocent. In so far as accused Shamim is concerned all the eye witnesses are very consistent on his identification and the role attributed to him is of strangulating the deceased Bhagwanti. Merely because the eye witnesses have improved their statements and trying to implicate the other family members of the accused, does not in any manner shake their credibility an extent so as to exonerate Shamim of the allegations. It is only to the extent of improvement that the testimonies of the eye witnesses shall be ignored as it is normal for the eye witnesses, closely related to the deceased to implicate as many persons from the family of the accused as possible. This being so, no action would be called for in so far as the wife of the accused and his brothers-in-law are concerned, but in so far as the accused Shamim is concerned there is sufficient corroboration to the ocular evident of PW1 Smt. Devli forthcoming from the testimony of PW5 Master Omi the minor son of the deceased who was present in the same room where is mother Bhagwanti was St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 32 of 36 killed by the accused and there is no reason to disbelieve the child witness who has been examined and cross-examination at length in this regard. It is evident that the testimonies of the eye witnesses are very categorical in so far as the involvement of the accused Shamim is concerned whereas the evidence of the various other facts are so closely associated with the fact in issue that they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.
Seventhly it is apparent from the record that the incident had taken place in the morning between 4:00 am to 4:15 am in the month of December and the presence of bulb in the Jhuggi of the deceased whose position has been shown in the site plan Ex.PW1/B proved by PW1 which site plan was prepared by the IO at the instance of PW1. An argument has been raised by the Ld. Counsel appearing on behalf of the accused that it was not possible for the witness PW1 Smt. Devli to have witness the incident from outside the Jhuggi since the incident took place inside the room when it was dark. In this regard, PW1 Smt. Devli has in her cross-examination proved that there was electricity in the Jhuggi of the deceased which they had obtained from the contractor and even the site plan which has been prepared at her instance by the IO duly proved by PW1 shows the existence of an electric bulb a fact which finds a mention in the testimony of PW5 who had stated that he had got up to switch on the bulb when he saw accused Shamim @ Saleem strangulating his mother. In so far as the witness Devli is concerned, it is evident that from the place where she is shown to have witnessed the incident, there is no obstruction and visibility is possible on account of the torn curtain of polythene which was hanging on the door of the Jhuggi St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 33 of 36 of the deceased. I, therefore, do not find any merit in the argument so raised by the Ld. Counsel for the accused.
Lastly allegations have been made by PW1 that the accused and his family had also stolen the jewellery worn by the deceased Bhagwanti. In this regard, it is evident from the record that there is no recovery of any stolen articles i.e. noise pin, silver buttons, two layer silver necklace, silver hasli and silver pajeb etc. but it is evident from the postmortem report Ex.PW10/A and from the photographs that there was a piercing injury on the nose of the deceased and the photographs reveals that force has been used to pull the nose pin. This injury was a fresh injury and has been duly proved by PW10-Dr. Lalit Kumar. This injury could have been caused during the scuffle which took place between the deceased and the accused. The allegations that the ornaments worn by the deceased Bhagwanti and the minor daughter of the deceased namely Komal had been removed by the accused, does not appear plausible and unacceptable as such. Even otherwise the first instinct of any person who during the process of strangulation of another person is seen by others would be to save himself from getting caught and not to remove the ornaments from the dead body. Eye witnesses Smt. Devli (PW1) and Master Omi (PW5) have specifically deposed that while the accused Shamim was strangulating the deceased Bhagwanti, Devli come to the spot and this being so, there would have no time left for the accused to remove the ornaments from her body. Further, there are no other marks of injuries suggesting the removal of the ornaments except the injury on the nose and even the glass bangles were intact. Therefore, the circumstantial evidence does not corroborate or establish this factum of theft.
St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 34 of 36 In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre-requisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ' must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. the circumstances should be of conclusive nature and tendency;
4. they should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Applying the settled principles of law to the facts and circumstances of the present case, I hereby hold that the prosecution has been successful in establishing the guilt of the accused Shammin @ Saleem @ Shamim in committing the house trespass/ house breaking of the Jhuggi of the deceased Bhagwanti after having made preparations for causing hurt to her and thereafter of having strangulated her with the help of Mangal Sutra worn by her with the intention of causing her death and due to St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 35 of 36 which act of the accused Shamim, the death of Bhagwanti was caused on account of asphyxia due to strangulation. Therefore, I hold the accused Shamim @ Saleem @ Shamim guilty of the offence under Section 452 and 302 Indian Penal Code for which he is accordingly convicted Case be listed for arguments on sentence on 14.7.2010.
Announced in the open court (Dr. KAMINI LAU) Dated: 9.7.2010 ASJ-II (NW): Rohini
St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 36 of 36 St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 37 of 36 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE-II(NW): ROHINI COURTS : DELHI Session Case No. 1125/09 Unique Case ID No. 02404R1286962005 State Vs. Sammin @ Shammin @ Salim S/o Nabi Ahmed R/o Jhuggi CN-487, Near Pani Ki Tanki, New F Block, Raghubir Nagar, Delhi FIR No. 997/04 Police Station: Rajouri Garden Under Section: 302/452 Indian Penal Code Date of Conviction: 9.7.2010 Arguments heard on: 15.7.2010 Date of Sentence: 23.7.2010 APPEARANCE:
Present: Sh. Tofiq Ahmed, Addl. Public Prosecutor for the State.
Convict in judicial custody with Amicus Curiae Sh. Deepak Sharma, Advocate.
ORDER ON SENTENCE:
Vide my detailed judgment 9.7.2010 the accused Shamim @ Shammin @ Salim has been held guilty of the offence under Section 452 & 302 Indian Penal Code.
This is a case where Bhagwanti a young lady of 30 years having 5 children whom she was raising of her own on account of her husband having left her, was brutally murdered by the convict St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 38 of 36 before this court namely Shamim, who was her neighbour having an evil eye on her Jhuggi. On 11.12.2004 at about 4/4:15 am the convict Shamim convicted entered in the Jhuggi of Bhagwanti and strangulated her with the help of the Mangal Sutra which she was wearing causing her immediate death on account of asphyxia. Shamim has been nailed on account of the evidence of the eye witnesses i.e. sister of the deceased Smt. Devli and the son of the deceased Master Omi who at that time was 7 years old and had witnessed the killing of his mother. Both these eye witnesses have stood their ground in the court during the trial and the accused has been held guilty of the offence under Section 452/ 302 Indian Penal Code.
Sh. Deepak Sharma, Ld. Amicus Curiae appearing on behalf of the convict has vehemently argued that the convict is aged about 48 years and is the only earning hand of his family comprising of wife and two daughters who are of marriageable age and therefore, any harsh punishment will not only affect the convict but will also ruin the life of his dependents. Ld. counsel has also pointed out that the convict is totally illiterate and is a carpenter by profession and is in judicial custody w.e.f. 11.12.2004 and has no previous involvements.
The Ld. Addl. Public Prosecutor on the other hand has argued that the victim Bhagwanti was bringing up her five children by stitching clothes as her husband had left her and after her death, her minor child have been render orphan and homeless. He has pointed out that the extent of the poverty of the deceased is evident from the fact that her Jhuggi in respect of which convict Shamim had raised a dispute, was made of tirpals and plastic sheets. The Ld. Special Prosecutor has placed his reliance on the St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 39 of 36 judgments of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convict Shamim. It is also stated that the convict has not been able to show any mitigating circumstances in his favour which could make out a case for imposition of sentence of imprisonment for life.
I have considered the submissions made before me. At the outset, I may state that there can be no dispute as to the applicability of the various principles as laid down by Hon'ble Supreme Court of India in the aforesaid two cases viz Machhi Singh (Supra) and Bachan Singh (Supra) which are required to be kept in mind before awarding a death sentence in any given case.
The necessity of there being a proportion between the offences and punishment has been long felt. However off late various judgments of the higher courts of the land and various jurists have tried to provide certain rules to this moral arithmetic.
(i) The punishment sought to be inflicted for any given offence should be such that the evil of the punishment must be made to exceed the advantage of the offence.
ii) The more deficient in certainty a punishment is, the severer it should be.
iii) The greater an offence is, the St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 40 of 36 greater reason there is to hazard a severe punishment for the chance of preventing it, and
iv) Same punishment for the same offence ought not to be inflicted upon all delinquents. It is necessary to pay some regard to the circumstances which effect sensibility.
However, at the same time it must be kept in mind that the principle of there being a proportion between punishment and offences ought not to be so mathematically followed so as to render the laws subtle, complicated and obscured. Brevity and simplicity are a superior good. Something of exact proportion may also be sacrificed to render the punishment more striking, more fit to inspire people with a sentiment of aversion for those vices which prepare the way for crimes.
After having considered the submissions made before me and the various aggravating and mitigating factors, I am of a view that the case in hand certainly does not fall within the category of Rarest of Rare or least even in category of Rare Case. I therefore, award the convict Shamim @ Shammin @ Salim the following sentences:
1. The convict Shamim @ Shammin @ Salim is further sentenced to Rigorous Imprisonment for life and fine for a sum of Rs.1,00,000/- (Rs. One Lacs) for the offence under Section 302 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one year. The total fine of Rs.1,00,000/- (Rs.
St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 41 of 36 One Lacs), if recovered, shall be given to the children of the deceased Bhagwanti as compensation under Section 357 Cr.P.C.
2. I sentence the convict Shamim @ Shammin @ Salim to Rigorous Imprisonment for 5 years and fine of Rs.2,000/- for the offence under Section 452 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of two weeks. Both the sentences shall run concurrently. The convict is already in judicial custody. He is sent to custody for serving the sentence. Benefit of Section 428 Cr.P.C. shall be given to the convict for the period undergone by him during the trial.
The convicts is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order of sentence be given to the convict free of costs and another be attached with their jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 23.7.2010 ASJ (NW)-II: Rohini
St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 42 of 36 State vs. Shamim FIR No. 997/04 PS Rajouri Garden 23.7.2010 Present: Addl. PP for the State.
Convict in JC with Amicus Curiae Sh. Deepak Sharma Advocate.
Vide my separate detailed order dictated and announced in the open court, I award the convict Shamim @ Shammin @ Salim the following sentences:
1. The convict Shamim @ Shammin @ Salim is sentenced to Rigorous Imprisonment for life and fine for a sum of Rs.1,00,000/- (Rs. One Lacs) for the offence under Section 302 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one year. The total fine of Rs.1,00,000/- (Rs. One Lacs), if recovered, shall be given to the children of the deceased Bhagwanti as compensation under Section 357 Cr.P.C.
2. I sentence the convict Shamim @ Shammin @ Salim to Rigorous Imprisonment for 5 years and fine of Rs.2,000/- for the offence under Section 452 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of two weeks.
Both the sentences shall run concurrently. The convict is already in judicial custody. He is sent to custody for serving the sentence. Benefit of Section 428 Cr.P.C. shall be given to the convict for the period undergone by him during the trial.
The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 43 of 36 he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order of sentence be given to the convict free of costs and another be attached with their jail warrants.
File be consigned to Record Room.
(Dr. Kamini Lau) ASJ(NW)-II: Rohini 23.7.2010 St. Vs. Shamim @ Saleem,FIR No. 662/07 PS Saraswati Vihar Page No. 44 of 36