Delhi District Court
State vs Jasmine Isack on 30 November, 2024
IN THE COURT OF SH. NAVJEET BUDHIRAJA
ASJ-02, SOUTH, SAKET COURTS, NEW DELHI
CNR NO. DLST01-007385-2019
SESSION CASE NO. 625 OF 2019
IN THE MATTER OF :
State
Versus
Jasmine Isack @ Masisa Angel Isack
D/o Isack Masisa
FIR No. : 370/2019
Police Station : Mehrauli
Under Section : 302 IPC & 14(A) of the
Foreigners Act, 1946
Date of Institution : 17.09.2019
Date of Committal : 09.10.2019
Reserved for Judgment : 08.11.2024
Date of Decision : 30.11.2024
Decision : Acquitted
JUDGMENT
The epitome of the case of the prosecution is that on 17.06.2019 at about 20:09 hrs, an information was received vide daily diary (DD) No. 98A at Police Station which is mentioned as under:
"Incident Address: Nanda Chowk Par......Opp. Nanda Hospital, Mehrauli, Incident Description: NEED POLICENeed Police Caller ne CALLER NE COMPLAINT NAHI BATAYI/.....CALLER KENYA SE HAI JO BOL RAHI HAI KI USKI BEHAN KO KISI NE JAAN SE MAAR DIYA HAI, Mobile No.999938xxxx".
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2. Thereafter, the said DD number was marked to Sub Inspector (SI) Prem Kumar who along with Constable (Ct.) Kapil proceeded for place of occurrence. In the meanwhile, within a short span of half an hour, four more PCR calls were received vide DD No. 107A, 111A, 114A and 117A from different mobile numbers regarding the same incident. All the above-said calls were marked to SI Prem Kumar. After marking of the above-said calls, SI Prem Kumar along with Ct. Kapil reached at the spot i.e. A-245, 1st Floor, Chhattarpur Extension, New Delhi where many persons of African Origins were standing and they stated that a lady named Annie, a Kenyan national was lying dead at the said address. Thereafter, SI Prem Kumar with other staff reached one of the first floor flats of the said address i.e. A-245, Chhattarpur Extension, Delhi and they found one dead body of a lady named Annie aged about 35 years who was lying on the floor of the drawing room/lobby. The said body contained a deep wound mark near collar bone that had pierced through T-shirt/top from which the blood was coming out. Her head was towards the south and broken pieces of glass were lying there. Empty beer bottle and wrapper/bag of some ordered fast food was lying on a glass table. Thereafter, crime team was called at the spot who inspected the spot and clicked the photographs of the spot. Thereafter, body of the deceased was sent to AIIMS where vide Medico Legal Case (MLC) No. 6904/19, she was declared brought dead.
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3. Thereafter, as per contents of the PCR calls, inspection of scene of crime and dead body, analysis of injuries mentioned on MLC, an offence under Section of the 302 Indian Penal Code, 1860 (IPC) was found committed and, thus, SI Prem Kumar prepared the rukka and got registered the First Information Report (FIR) through Ct. Kapil.
4. After registration of the FIR, further investigation was marked to Inspector Shailendra Singh, PS Mehrauli (IO). During further investigation, various exhibits from the room where the deceased was lying dead and other places of the above flat were picked up/seized.
5. During further investigation, at the instance of SI Prem Kumar, a site plan (without scale) was prepared. Thereafter, Kenyan Embassy/High Commission was informed about the deceased and they were requested to inform the family of the deceased. A team of RFSL Chanakyapuri also visited the scene of crime, seized and provided some exhibits in five envelope. Statement of Iaisha Vera, who called at 100 number was recorded and various occupants living at different floors at the same premises i.e. A-245, Chhattarpur Enclave were also examined.
6. During further investigation, accused Jasmine was inquired first as she was residing in the opposite flat of deceased Annie, who straightaway expressed ignorance about the incident and claimed to be sleeping in her room. There were some bruises on her hand and other parts of the body for which Jasmine was SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 3 of 50 got medically examined. Ms. Cookie was inquired who stated that while she was washing utensils, she heard some loud quarrel noises between Jasmine and Annie but she did not bother to check as Jasmine always made too much noise and when in the evening, she went up to her friend's place to pick some water, she knocked the door of the 1st floor where Annie used to reside, she found that the door was not locked and bolted from inside. When she opened the door, she found that Annie was lying in the drawing room. There was no response of Annie when Cookie tapped on the legs and feet of Annie.
7. Further, Ms. Tracey was also inquired and examined who stated that she used to reside in the same flat with Annie and Rosa and had gone to Manali and was to return in the night of 16/17.06.2019. She was chatting with deceased Annie and she last received the message of Annie at 12:27 PM wherein Annie messaged her that she had a fight with Jasmine and she had beaten Jasmine. At 12:28 PM, Tracey wanted to know more details and sent her WhatsApp message but there was no response. Later in the evening, she came to know through Sharon that Ann (deceased) passed away and, thereafter, Tracey immediately left her boyfriend's house and reached at the spot where Annie was lying dead. Tracey further told that Jasmine was very aggressive and she often used to get in verbal arguments and scuffle with Annie as well as other girls staying in the said building and few days back, Jasmine hit on the head of one girl, namely, Jackie. She further stated that she suspected that Jasmine might have hurt Ann. She handed over her mobile phone SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 4 of 50 and screenshots of chats and its translation to the police which were seized by the police.
8. During further investigation, it was revealed that the deceased had placed food order and in this regard delivery boy Mohd. Ghulam Mustafa was asked to join the investigation and inquires were made from him during which he stated that he delivered food to one Ann Sam at around 11:25 AM at her house and at that time, one thin built man was also sitting in the said flat. When Mohd. Ghulam Mustafa was about to go, one lady who was residing in the opposite flat started saying something loudly.
9. Further, Ms. Jackey James was also examined who stated that at about 09:45AM she heard the loud noises on the first floor and, thereafter, at about 12:30 PM, she again heard loud voices/noises of Jasmine and Ann fighting at 1 st Floor. She heard that Jasmine was asking for beer and Ann was refusing to give her beer and was telling Jasmine that after drink she becomes dangerous. Then there was complete silence and no one talked. In the evening, she came to know that Ann was dead. Thereafter, Hamza Uzairu Gherbu was also examined and he corroborated the version of Jackey James. Thereafter, Kizito Ohanele who was the boyfriend of Jasmine was also examined and he narrated the events of the intervening night of 16/17.06.2019 and the following day and stated that he called Jasmine at about 02:30-03:00 AM in the night and had gone to the house of Jasmine at about 05:00 AM and, thereafter, they SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 5 of 50 went to African Kitchen in the area of Maidan Garhi and they had dinner. He had one pint beer and Jasmine had two bottles beer and one bottle of beer was taken by Jasmine to her home. Thereafter, they returned at the house of Jasmine and when Kizito Ohanele stopped Jasmine from taking more beer, they had a quarrel and, thereafter, Kizito Ohanele left the house at about 09:00 AM. Again he saw Jasmine in the market and he again went to the house of Jasmine at about 01:45-02:00 PM where again a quarrel had taken place between Kizito Ohanele and Jasmine on issue of consuming more beer by Jasmine. Thereafter, Jasmine slapped Kizito Ohanele on his face due to which Kizito Ohanele lost his patience and had beaten up Jasmine with belt. Later on, Kizito Ohanele came to know that deceased Ann had died and Jasmine and Ann had fought over beer.
10. In the course of further investigation, Call Detail Records (CDRs) of the deceased were procured. Later on Shiva Boss was also examined, who was identified by Mohd. Ghulam Mustafa. From the inquiries which were made from the public persons, suspicion was pointed towards accused Jasmine and, therefore, she was again examined. Initially accused Jasmine denied having any fight with deceased Annie, however, when she was sternly interrogated, accused Jasmine confessed having committed the offence. Thereafter, accused Jasmine was arrested and on her pointing out, knife which was used in the commission of offence was recovered from the kitchen of her flat. Accused Jasmine also got recovered the clothes which she was wearing at the time of committing of offence. Sketch of knife, pointing out SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 6 of 50 and seizure memos were prepared. Accused was produced in the Court of Ld. Metropolitan Magistrate and remanded to judicial custody. On 21.06.2019, blood samples of the accused was also taken.
11. During further investigation, IO received the No Objection Certificate from High Commission of Kenya along with a letter received from deceased's family giving their approval for the postmortem to be conducted. Accordingly, on 21.06.2019, postmortem of the deceased was got conducted. Thereafter, statements of David Kipcoech Koske and Rosa Bambes Millaro were recorded. Thereafter, on 26.06.2019, the autopsy surgeon had given the postmortem report no. 744/2019. During further investigation, scaled site plan was prepared and PCR forms were obtained and placed on record. It was also revealed that visa of accused Jasmine had expired in February 2016 and she had been staying in India illegally and, therefore, provision of Section 14 Foreigners Act was invoked. Exhibits were seized and sent to Forensic Science Laboratory (FSL). Thereafter, charge-sheet against accused Jasmine Isack for the offences under Section 302/201 IPC and 14 Foreigners Act was filed in the Court.
12. Cognizance of the offence was taken on 20.09.2019 while the accused was in judicial custody and post the compliance of Section 207 Code of Criminal Procedure, 1973 (Cr.P.C.) and supply of charge sheet and other documents, the case was committed to the court of Session on 09.10.2019.
SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 7 of 50 Accused was charged vide order dated 14.12.2021 for offences under Section 302 IPC and 14(A) of the Foreigner Act, 1946, who pleaded not guilty and claimed to be tried.
13. During prosecution evidence, nineteen (19) witnesses were examined, comprising of public witnesses, police officials who participated in the investigation proceeding and the concerned doctors. Witnesses examined are enlisted as under:
A. PW1 is Shiva Boss who deposed that in the year 2019, he was working in a call centre and met Laura (deceased Annie) through Website, namely, Meetme. Laura was residing in the area of Chattarpur near some hospital. On 17.06.2019 at around 11:00 AM, PW1 met Laura at her residence and when he was talking to Laura at her home, somebody knocked at the door.
Laura opened the door and PW1 saw that one girl was at the door asking for beer. Later he came to know that the name of that girl was Jasmine (accused herein). Jasmine was asking for beer from Laura. Laura refused to give her any beer. They were talking in their own language. They were talking loudly. They were abusing each other in English. Laura then shut the door. The accused Jasmine then left. PW1 further deposed that they had also ordered food delivery from Zomato. The delivery boy delivered samosa. PW1 had these snacks there and paid Rs 500/- to Laura and left at 12 O'clock Noon on the same day. On the next day of meeting Laura, since PW1 could not pick up the calls, driver of the call centre informed PW1 that the calls were from PS Mehrauli and they were inquiring about PW1. PW1 was asked to SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 8 of 50 reach at PS Mehrauli immediately and narrated all the facts to the police officials. He was cross-examined on behalf of the accused.
B. PW2 is Sh. Mohd. Ghulam Mustafa who deposed that in the year 2019, he was working as delivery boy in Zomato and delivered food at House No. A-245, First Floor, Chattarpur Extension, New Delhi which he had collected the order from Community Centre, Saket PVR Complex and sum of Rs 500/- was paid to him for the said order. On the next day of delivering the order, he was called by the police officials of PS Mehrauli and inquiries were made by the police. Since this witness did not depose anything about the presence of accused Jasmine at the residence of deceased Annie, he was cross-examined by State. But despite opportunity, PW2 was not cross-examined on behalf of the accused.
C. PW3 is Dr. Swati Tyagi who deposed on 21.06.2019 at about 02:30 PM, she along with Dr. Benzy Varughese started autopsy of Anne Nyokabi Ndegw and concluded at 03:40 PM. She got marked the postmortem report as Ex. PW3/A and subsequent opinion on the weapon of offence i.e. knife as Ex. PW3/B. PW3 was cross-examined on behalf of the accused.
D. PW4 is HC Kapil Rathi who deposed that on receipt of DD No. 98A, he along with SI Prem went to A-245, 1st Floor, Chhattarpur, New Delhi and many persons from African origin were found present near the aforesaid house. Thereafter, they went to 1st Floor of the above-said house where one lady whose SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 9 of 50 name was revealed as Annie was found lying dead. He got marked the seizure memo of blood in gauze as Ex. PW4/A, seizure blood stained flooring rubber as Ex. PW4/B, seizure of flooring rubber as Ex. PW4/C, seizure of one beer bottle labelled with Kingfisher Strong Platinum Beer as Ex. PW4/D, seizure of ten pieces of stubs of cigarettes of Marlboro Gold Brand and five piece of golden coloured stubs of cigarettes as Ex. PW4/E, seizure of one brown colour paper carry bag over along with one mini flask Chai Point India Runs on Chai as Ex. PW4/F, seizure memo of one broken glass, broken shreds/pieces of glass and one empty glass as Ex. PW4/G, seizure memo of one knife having yellow colour handle as Ex. PW4/H, seizure memo of another knife having orange colour handle as Ex. PW4/I, seizure of used condoms and wrappers as Ex. PW4/J, seizure memo of exhibits handed over by the doctor after postmortem of deceased Annie as Ex. PW4/K. This witness correctly identified the case properties. PW4 was cross-examined on behalf of the accused.
E. PW5 is Dr. Sumit Daitan who deposed about MLC No. 6904/2019 dated 18.06.2019 of deceased Annie and got marked the said MLC as Ex. PW5/A. PW5 was cross-examined on behalf of the accused.
F. PW6 is W/SI Sonam who deposed that on 17.06.2020, she was working as Duty Officer at PS Mehrauli. She got marked the GD No. 98A as Ex. PW6/A, GD No. 107A as Ex. PW6/B, GD No. 111A as Ex. PW6/C, GD No. 114A as Ex. PW6/D, GD No. 117A as Ex. PW6/E and issuance of certificate SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 10 of 50 under Section 65B of the Indian Evidence Act as Ex. PW6/F. Despite opportunity, PW6 was not cross-examined on behalf of the accused.
G. PW7 is SI Zine Singh who deposed that on 18.06.2020, he was working as Duty Officer at PS Mehrauli. He got marked the endorsement on rukka as Ex. PW7/A and computerized copy of FIR as Ex. PW7/B. This witness was cross-examined on behalf of the accused.
H. PW8 is HC Amit Kumar who got marked relevant entry of RC No. 250/21/2020 in Register No. 21 as Ex. PW8/A and its acknowledgement as Ex. PW8/B, entry of RC No. 305/21/2020 as Ex. PW8/C and its acknowledgement as Ex. PW8/D, entry of RC No. 307/21/2020 as Ex. PW8/E and its acceptance/ acknowledgements as Ex. PW8/F and Ex. PW8/G. PW8 was cross-examined on behalf of the accused.
I. PW9 is HC Ravi who got marked the entries in Register No. 19 at Serial No. 3240 from point X to X as Ex. PW9/A (colly), at Serial No. 3242 from point X-1 to X-1 as Ex. PW9/B, at Serial No. 3245 from point X-2 to X-2 as Ex. PW9/C (colly) and at Serial No. 3249 from point X-3 to X-3 as Ex. PW9/D (colly). PW9 was cross-examined on behalf of the accused.
J. PW10 is SI Prem Kumar who deposed that on 17.06.2019, on receipt of DD No. 98A Ex. PW10/A, he along SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 11 of 50 with Ct. Kapil went to the spot i.e. A-245, First Floor, Chhattarpur Extension, New Delhi where some persons from Africa origin informed them that at the first floor of House No. A-245, a lady, namely, Annie who was from Kenya was lying dead. At first floor of House No. A-245 and on entering inside the room, a lady aged about 35 years whose skin was dark, strong built wearing multi colour top and green colour printed capri was lying on the floor of the lobby. PW10 inspected the dead body and found wound mark near collar bone. The t-shirt which she was wearing was torn at the point of wound and blood was oozing out from her wound. She was not breathing and her body was cold and stiff. PW16 IO inspected the spot and called the crime team at the spot. Ct. Kapil and Ct. Veer Singh took the dead body to AIIMS Hospital where MLC of deceased Annie was prepared. PW16 got marked rukka as Ex. PW10/B, site plan as Ex. PW10/C, seizure of five exhibits handed over by CFSL Team, Chanakyapuri as Ex. PW10/D, arrest of accused Jasmine Isack as Ex. PW10/E, personal search of accused as Ex. PW10/F, disclosure statement of accused as Ex. PW10/G, sketch of knife having black colour handle as Ex. PW10/H, seizure of knife with black colour handle as Ex. PW10/I, seizure of worn clothes of accused as Ex. PW10/J, dead body identification memo by Rosa Bambesmillaro as Ex. PW10/K and dead body identification memo by Kipcoech Koskei as Ex. PW10/L. This witness correctly identified the case properties. PW10 was cross- examined on behalf of the accused.
K. PW10A is HC Prashant Kumar who deposed that on SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 12 of 50 17.06.2019 at about 20:09:14 hours, he received call on 100 number. He got marked the CPCRDD No. 17 Jun 191330806 as Ex. PW10/AX. Despite opportunity, PW10A was not cross- examined on behalf of the accused.
L. PW11 is ACP Mukesh Kumar Jain, Draughtsman who deposed about visiting the spot, taking rough measurements and notes on 26.08.2019 and preparation of scaled site plan Ex. PW11/A on 27.08.2019. PW11 was cross-examined on behalf of the accused.
M. PW12 is W/Ct. Chanchal who deposed about joining of investigation with IO/Inspector Shailender on 20.06.2019, interrogation of accused Jasmine Isack in her presence, arrest of accused, recoveries made in her presence, disclosure statement of accused, preparation of sketch of knife and seizure memo made in her presence. She further deposed that she along with W/Ct. Ritu took the accused to AIIMS Trauma Centre where she was medically examined. Thereafter, accused was produced before the Court and was remanded to judicial custody for one day. PW12 was cross-examined on behalf of the accused.
N. PW13 is Ct. Sumer Singh who deposed that on 18.06.2019, after registration of FIR, he handed over the copies of present FIR to the senior police officers and concerned Ld. MM. Despite opportunity, PW13 was not cross-examined on behalf of the accused.
SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 13 of 50 O. PW14 is SI Ajay who deposed that on 17.06.2019, he was posted as In-charge at South District, Crime Team, New Delhi and inspected the spot i.e. A-245, 1 st Floor, Chattarpur Extension, New Delhi. He got marked his report as Ex. PW14/A. PW14 was cross-examined on behalf of the accused.
P. PW15 is Ct. Vikas who deposed that on 17.06.2019, he clicked 45 photographs of the spot i.e. A-245, 1st Floor, Chattarpur Extension, New Delhi and got marked the said photographs as Ex. PW15/A (Colly). PW15 was cross-examined on behalf of the accused.
Q. PW16 is IO Inspector Shailendra Singh who deposed about various aspects of investigation conducted by him. He got marked the seizure of mobile phone of Tracey as Ex. PW16/A, seizure of transcript of WhatsApp messages as Ex. PW16/B, seizure of mobile phone of Jacky which contained a message sent by her friend regarding the quarrel between accused and the deceased as Ex. PW16/C, memo of blood sample of accused as Ex. PW16/D. This witness correctly identified the case properties. PW16 was cross-examined on behalf of the accused.
R. PW17 is Dr. Biswaji Santra who deposed that o n 09.09.2020, one duly sealed was received in the office and he chemically examined it. He got marked his detailed report as Ex. PW17/A. After examination, the remnants of the exhibits have been sealed with the seal of "BS CHEM RFSL CH.PURI ND". Despite SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 14 of 50 opportunity, PW17 was not cross-examined on behalf of the accused.
S. PW18 is Dr. Garima Chaudhary who deposed that on 28.10.2020, she was posted as Senior Forensic / Chemical Examiner (Bio/DNA) at RFSL Chanakyapuri, New Delhi and ten sealed parcels duly sealed with different seals in connection with the present FIR have been received in the office of RFSL and she biologically examined all the exhibits. She got marked the detailed report as Ex. PW18/A. After examination, the remnants of the exhibits have been sealed with the seal of "GC CH.PURI RFSL NEW DELHI". PW18 was cross-examined on behalf of the accused.
This witness was also re-examined by the Court in exercise of power under Section 311 Cr.P.C. read with Section 165 of Indian Evidence Act on dated 01.10.2024.
14. Prosecution evidence was put to rest on 04.05.2024.
15. In the statement under Section 313 Cr.P.C. when the accused was confronted with the circumstances appearing in the prosecution evidence, to some of the questions she expressed her ignorance, some part of the evidence she stated to be incorrect and some as matter of record. Her final stand was that this was a false case against her and she had been falsely implicated by the police officials in order to solve the case. She did not lead any evidence in her defence, culminating the matter to the stage of final arguments.
SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 15 of 50 Arguments of the Accused and the Prosecution
16. Sh. Rajesh Gulati, Ld. Legal Aid Counsel (LAC) clamored for exoneration of the accused primarily due to lack of any incriminating circumstance against her which could fix her identification in the present case and establishes the charges against her. Ld. LAC pointed out that all the General Diary (GD) calls pertain to different mobile numbers, no neighbourhood was noted in the site plan, there is no observation as to how far the bedroom was from the main entrance, there is no signatures of any public persons in the seizure memos, two knives Ex. PW4/H and Ex. PW4/I were not sent to FSL, PW1 Shiva Boss and PW2 Mohd. Ghulam Mustafa in their testimony have not pinned any blame on the accused, PW2 was then declared hostile, the recovery of the alleged weapon of offence is also doubtful, site plan was prepared by PW16 at the instance of SI Prem and not at the instance of any public witnesses, mobile phone of the deceased was sent to the FSL, there is no fingerprint report, no chance-prints were obtained and no blood stains on the cloth of the accused were found.
17. On the contrary, Ld. Additional Public Prosecutor for the State Sh. Lav Dev Singh led his tirade against the accused and argued for her conviction. Though, Ld. Additional PP conceded that there is no eye-witness to the incident in question on record but weapon of the offence i.e. knife was found to be SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 16 of 50 recovered at the instance of the accused and FSL Result in respect of the same is also pointing towards the role of the accused in killing the deceased.
18. The record of the entire case is fully assessed and analyzed including the evidence and rival contentions advanced on behalf of both the sides.
19. In so far as homicidal death of the deceased Annie is concerned, testimony of PW5 Dr. Sumit Daitan can be noted who deposed that on 18.06.2019 at about 12:10 AM while he was posted as Junior Resident in New Emergency of AIIMS, Annie aged about 34 years was brought dead by Ct. Kapil Rathi. On examination, he found no signs of life and external injuries were found i.e. Injury No. 01- laceration on left side of chest below clavicle, Injury No. 02- Others (Bloody Mucoid Discharge from the nose). He further deposed that body of the deceased was sent to Forensic Department for further examination. He prepared MLC No. 6904/2019 Ex. PW5/A. Further, the cause of death of the deceased can be culled out from the testimony of PW3 Dr. Swati Tyagi, Assistant Professor, Department of Forensic Medicine & Toxicology, AIIMS Hospital, New Delhi who deposed as under :
On 18.06.2019, I was posted as Senior Resident in Department of Forensic Medicine & Toxicology, AIIMS, New Delhi. On that day, at about 12:35 AM, dead SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 17 of 50 body of Anne Nyokabi Ndegwa Female aged about 32 years; Address A-245, 1st floor, near Nanda Hospital, Chhattarpur, Mehrauli was received.
On 21.06.2019 at about 01:00 PM, the department received inquest papers. On that day at about 02:30 PM, I along with Dr. Benzy Varughese started autopsy of Anne Nyokabi Ndegw and concluded at 03:40 PM.
Alleged history of deceased found lying on floor of drawing room at A-245, 1st floor, near Nanda Hospital, Chhattarpur, Mehrauli with a stab injury over the chest on 17.06.2019 at 07:00 PM. The assailant had a quarrel history with the victim following which she stabbed her with kitchen knife. The deceased was brought to AIIMS Hospital where she was declared brought dead on 18.06.2019 at 12:11 AM. On postmortem examination rigor mortem was passed off. Blood stain fluid oozing from the nostril and no external sign of decomposition was present. On further examination injuries were present as follows :
1. A stab wound, obliquely placed, with dimensions 3 cm (length) x 0.8 cm (width) after stretching length wise., extending up to the chest wall, is present over the left side of front of chest. The upper and inner end has a pointed edge and is located 6 cm away from the suprasternal notch at 4 O'clock position and 6 cm below the mid point of the left SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 18 of 50 clavicle, while the lower and outer end of the wound has a relatively round edge. The margins of the stab wound are regular. The stab wound is located 137 cm above the left heel. On reflection of soft tissues of the chest, the stab wound is found penetrating the chest cavity, through a wound with dimensions 3 cm x 0.5 cm along the left lateral border of the sternum. The wound is extending from the third intercostal space to the fourth intercostal space, passing through the fourth costal cartilage on the left side. On removing the sternum, around 250 grams of clotted blood is present over the anterior surface of the pericardium and around 1300 ml of liquid blood mixed with blood clots is present in both pleural cavities.
The stab wound penetrates the pericardial cavity through a vertical wound of size 2.5 cm x 0.6 cm over the anterior surface of the pericardium, lower end of which is located 2 cm above the inferior margin of the pericardium. On opening the pericardium, around 100 grams of clotted blood is present within the pericardial cavity. The stab wound penetrates the heart through a vertical wound of size 3 cm x 0.3 cm, lower end of which is located 6 cm away from the apex of the heart. On dissection of the heart, the stab wound is found to enter and terminate at the right ventricle cavity.
2. Two reddish abraded contusions, horizontally present and parallel to each SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 19 of 50 other placed 1 cm apart, with dimensions 10 cm x 0.5 cm and 6 cm x 0.2 cm, are present over the front of left side of chest. Medial ends of both abrasions are located 2 cm away from the midline and are overlying the left clavicle.
On internal examination, around 1300 ML of liquid blood mixed with blood clots present in both the pleural cavities. Left lung was collapsed.
The cause of death in this case was given as shock as a result of stab wound to the chest (injury no. 1) which was sufficient to cause death in ordinary course of nature.
Injury no. 1 was caused by sharp edge weapon and injury no. 2 was caused by blunt force. All the injuries were ante mortem in nature. Viscera was kept to rule out concomitant intoxication.
My detailed postmortem report is exhibited as Ex.
PW3/A bearing my signatures at Points A, B, C and D. Dr. Benzy Varughese had also assisted me in conducting postmortem and preparing the PM Report who had been associated with me for about 02 years. Dr. Benzy Varughese has left the services of the hospital and his present whereabouts are not known. I am conversant with the signatures and handwriting of Dr. Benzy Varughese as he was associated with me for about 02 years and I had seen him writing and signing during my ordinary course of duty. The signatures of Dr. Benzy SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 20 of 50 Varughese on Ex. PW3/A is at Points E, F, G and H.
20. It is limpid from the testimony noted above and from the aforesaid postmortem report in respect of the deceased that cause of death in this case is shock as a result of stab wound to the chest which was sufficient to cause death in ordinary course of nature. The injury no. 1 was caused by sharp edge weapon. Thus, from the testimonies of PW3 and PW5 as well as the MLC Ex. PW5/A and postmortem report Ex. PW3/A, homicidal death of the deceased Annie has been established.
Analysis of testimony of public witnesses from the prosecution side
21. At the outset, it is highlighted that though the prosecution cited number of public witnesses, however, most of these witnesses were not the permanent native of India and when summons were issued to them for their deposition, most of them remained untraceable despite repeated processes sent through the police department up till the level of concerned DCP. The names of these witnesses can be noted as Iaisha Vera (mentioned at Serial No. 02 in the list of witnesses), Ms. Cookie (mentioned at Serial No. 03 in the list of witnesses), Tracey (mentioned at Serial No. 04 in the list of witnesses), Jackey James (mentioned at Serial No. 06 in the list of witnesses), Hamza Uzairu Gherba (mentioned at Serial No. 07 in the list of witnesses), Kizito Ohanele (mentioned at Serial No. 08 in the list of witnesses), David Kipcoech Koskei (mentioned at Serial No. 10 in the list of SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 21 of 50 witnesses) and Rosa Bambes Millaro (mentioned at Serial No. 11 in the list of witnesses).
22. Moving on to the testimony of public witnesses which the prosecution managed to get examined. The first witness is PW1 Shiva Boss whose testimony is to the effect that on 17.06.2019 at around 11:00 AM, while he was talking to Laura (deceased Annie) at her home, somebody knocked at the door. Laura opened the door and PW1 saw that one girl was at the door asking for beer. Later PW1 came to know that the name of that girl was Jasmine (accused herein) who was correctly identified by him. He further deposed that accused was asking for beer but Laura refused to give her any beer which led to them being abusive to each other in English language, though he also deposed that they were talking in their own language. Laura, thereafter, shut the door and accused Jasmine had left. PW1 further deposed that they also ordered food delivery from Zomato. The delivery boy had arrived at the house of Laura in his presence and he delivered samosa. PW1 had these snacks there and paid Rs 500/- to Laura and left at 12 O'clock Noon on the same day.
23. In his cross-examination on behalf of the accused, PW1 could not remember the exact time when the door of the house of Laura was knocked, he could not tell the clothes worn by accused Jasmine. He also clarified that no other person except the delivery boy had come in the room of Laura in his presence. He also confirmed having not understood the language of SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 22 of 50 deceased Laura and accused Jasmine in which they communicated with each other as he only understands English language. Though PW1 stated having overheard the word 'F---' (the word is mentioned in the cross-examination of PW1 dated 06.09.2022) but he could not correctly overhear all the words as he was in the inner room which was a bedroom.
24. The only inference which can be drawn from the testimony of PW1 is that on 17.06.2019 at about 11:00 AM, he was present at the house of the deceased when accused Jasmine came there and both the deceased Laura and accused Jasmine had some conversation. Though PW1 expounded that accused was asking for beer and upon refusal by deceased Laura, they both were abusive to each other in English language, but in view of the own admission of PW1 that both of them were talking in their own language and that he was not able to understand the language in which they were communicating, it cannot be said to be established beyond doubt that the accused came to the house of the deceased and asked for beer and on refusal by the deceased Laura, they had an altercation. Further, the fact that they were talking loudly and PW1 overheard the 'F---', it cannot be presumed that both the deceased and accused had heated exchange of words over the refusal to give beer. There are some cuss words which people now-a-days use in all sort of conversations.
25. Prosecution also got examined the delivery boy from Zomato i.e. PW2 Mohd. Ghulam Mustafa who went to deliver SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 23 of 50 the order to the house of Laura on the given day. He deposed that in the year 2019, he was working as delivery boy in Zomato. He went to make delivery at House No. A-245, First Floor, Chattarpur Extension, New Delhi which was a packed order. At the said house, he delivered the order to a lady who had given Rs 500/- currency note and did not demand the balance amount from him as it was an order for Rs 480/-. PW2 further deposed having not seen the accused at the house when he had gone to deliver the order and following this statement, he was declared hostile and was cross examined on behalf of the State. The entire extract of his cross-examination is mentioned herein under for reference :
"Police did not read over my statement to me nor I had gone through my statement recorded by the police. It is wrong to suggest that police recorded my statement u/s 161 Cr.P.C. on 19.06.2019 and same was read over to me. The said statement is now exhibited as Ex. PW2/PX1.
I am not certain whether it was 17.06.2019 when I delivered the order at the aforesaid house. It is wrong to suggest that I had stated to the police in my statement that it was 17.06.2019 when I went to deliver the order at the aforesaid house. (confronted with portion A to A of statement Ex. PW2/PX1 where it is so recorded.) It is wrong to suggest that I had stated to the police in my statement that at the aforesaid house I met a lady, namely, Ansum to whom SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 24 of 50 I delivered the order at around 11:25 AM and I also found a boy of thin built inside the said house. (confronted with portion B to B of statement Ex.
PW2/PX1 where it is so recorded.) It is wrong to suggest that I had told to the police in my statement that when I was returning after delivering the order, I saw a lady from the opposite flat speaking loudly to the lady to whom I delivered the order. (confronted with portion C to C of statement Ex. PW2/PX1 where it is so recorded.) It is further wrong to suggest that on 19.06.2019, I was called by the police in the Police Station for enquiry in the present case and I had stated to the police that I identify the boy, namely, Shiva Boss inside the police station to whom I had seen at the time of delivering the order at the aforesaid flat and I also had seen a lady in the Police Station who was speaking loudly to the lady to whom I delivered the order and name of said lady came to know as Jasmine. (confronted with portion D to D of statement Ex. PW2/PX1 where it is so recorded.) It is wrong to suggest that accused Jasmine today present in the Court is the same lady who was speaking loudly from the opposite flat with the lady to whom I delivered the order. It is wrong to suggest that I am not identifying the accused deliberately to save her from the prosecution of the SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 25 of 50 present case. It is wrong to suggest that police correctly recorded my statement on 19.06.2019 at my instance."
Thus, from the afore-noted testimony of PW2 also, not much strength can be said to have been lent to the case of the prosecution about the altercation of the deceased with the accused.
26. Further, as per the deposition of PW16 IO, he had recorded the statement of one lady, namely, Tracey under Section 161 Cr.P.C. who provided him the copy of WhatsApp conversation between her and the deceased which was in African language and which was got translated in English language by one person, namely, Sharon who was also staying on the ground floor of the same building. Transcript of the WhatsApp conversation reveals that the deceased had a tiff with the accused, that mobile phone and transcript were seized by PW16 vide seizure memo Ex. PW16/A and Ex. PW16/B. However, this piece of evidence also does not advance cause of the prosecution as the said witness Tracey remained untraceable and could not be examined. Further, the said person, namely, Sharon with whose assistance, the WhatsApp conversation was got translated was also not cited as a witness. Also, there is nothing on record to suggest that the said person, namely, Sharon was well versed with African language and was capable for translating the same into English language.
SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 26 of 50 Recovery of Knife
27. The prosecution has postulated that the weapon of offence i.e. knife Ex. P9 was recovered at the instance of the accused which is a vital piece of evidence connecting the accused to the crime in question in as much as the blood stains on the said weapon are found to have a positive match with the blood group of the deceased as per the finding of FSL. In order to build its case on this crucial piece of evidence, prosecution has examined PW4 HC Kapil Rathi, PW10 SI Prem Kumar, PW12 W/Ct. Chanchal, PW16 IO/Inspector Shailender Singh Jhakhar and PW18 Dr. Garima Chaudhary.
28. PW4 HC Kapil Rathi had deposed that on 17.06.2019, he along with PW10 SI Prem Kumar reached at the spot and during the course of investigation on 18.06.2019, one knife was found measuring 19 cms in total length, 8 cms as length of the blade, 1.5 cms as width of the blade and 11 cms as length of the handle and colour of the handle was yellow. PW16 IO/Inspector Shailender Singh Jhakhar kept the knife in transparent white plastic box which was sealed with doctor tape and seal of 'SS' and the seizure memo in respect of which is Ex. PW4/H. PW4 HC Kapil Rathi further deposed that on the same day, in the sink of the kitchen, one more knife was found which was measuring 22 cms in total length, 11.5 cms as length of the blade, 1.6 cms as width of the blade and 10.5 cms as length of handle and colour of the handle was orange. The said knife was also kept in transparent plastic box and sealed with the doctor SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 27 of 50 tape and seal of 'SS' and seizure memo in respect of which is Ex. PW4/I. Both the knives were correctly identified by this witness as Ex. P5 and Ex. P6 respectively.
29. In his cross-examination on behalf of the accused, PW4 further propounded that the knife with yellow colour handle was seized from the hall and knife with orange colour handle was seized from the kitchen sink of the house where the dead body was found.
30. It is not the case of the prosecution that the two knives recovered from the house of the deceased as mentioned above Ex. P5 and Ex. P6 were the weapon of the offence and, therefore, these knives were not sent to the FSL for the forensic analysis. Rather, the case as projected by the prosecution is that another knife was recovered from the house of the accused at her instance which was sent to FSL and a positive match in regard to the blood stains on the knife with the blood group of the deceased was received. In this regard, the testimony of other recovery witnesses can be noted.
31. PW10 SI Prem Kumar deposed about initiating the investigation on 17.06.2019 on receipt of DD No. 98A Ex. PW10/A during which he also witnessed the discovery and seizure of two knives Ex. P5 and Ex. P6. Apart from this, PW10/ SI Prem Kumar also spoke about joining the investigation on 20.06.2019 along with PW16 IO/Inspector Shailender Singh Jhakhar when the accused was arrested vide arrest memo Ex.
SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 28 of 50 PW10/E who then was interrogated and disclosed that she had hidden one knife having black colour handle in the kitchen of House No. A-245, First Floor and she took them there and from inside the kitchen, she took out the said knife which was hidden under the utensils. Accused Jasmine disclosed that the said knife was used by her for stabbing and killing the deceased and later on she washed the said knife with water and hid the knife under the utensils. PW10 further deposed that total length of the said knife was 29.5 cms, length of the blade was 17.5 cms, length of the handle was 12 cms and the width of the blade was 3.4 cms. The blade was made of stainless steel. The handle was made of black colour plastic. PW16 prepared the sketch of knife on plain white paper Ex. PW10/H and kept the knife in transparent plastic jar which was wrapped with doctor tape and sealed with the seal of 'SS'. The seizure memo of said knife was Ex. PW10/I. This knife was also produced during the deposition of PW10 who correctly identified the same as Ex. P9.
32. PW10 SI Prem Kumar was extensively cross- examined on behalf of the accused on the aspect of recovery of knife from the kitchen of the house of the accused, PW10 reiterated that the accused got recovered the said knife from the kitchen of her house and told that she had already washed the said knife with soap. He disclaimed the suggestion that the knife was not recovered at the instance of the accused from her house and the sketch of the knife was prepared while sitting in the police station after planting the knife upon the accused and this is why no public person witnessed the recovery.
SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 29 of 50
33. PW12 W/Ct. Chanchal had also deposed about joining the investigation with PW16/IO Inspector Shailender Singh on 20.06.2024 when the accused Jasmine was interrogated and arrested vide arrest memo Ex. PW10/E. PW12 also deposed about recovery of one knife from the kitchen of her house which she had concealed behind the utensils. IO/PW16 prepared the sketch of knife Ex. PW10/H on plain paper and kept the said knife in transparent plastic jar and sealed with the seal of 'SS' and seized the said knife vide seizure memo Ex. PW10/I.
34. PW12 W/Ct. Chanchal was cross-examined on behalf of the accused during which she denied the suggestion that no recovery of knife and wearing clothes of the accused was made at the instance of the accused and that the knife was planted upon the accused.
35. PW16 IO/Inspector Shailender Singh Jhakhar also deposed about various facets of the investigation along with PW10 SI Prem Kumar and in regard to recovery of weapon of offence, he deposed that the accused led the police to the spot of recovery of weapon of offence and he had prepared the sketch of the same vide memo already Ex. PW10/H. PW16 also deposed about recovery of two other knives from the house of the deceased i.e. Ex. P5 and Ex. P6.
36. In his cross-examination, PW16 also expounded that they reached at the spot from where the weapon of offence was SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 30 of 50 got recovered at about 12:00-12:30 PM and that no public person was present there at the time of recovery of weapon of offence. PW16 refuted the suggestion that nothing was recovered at the instance of the accused or that the recovered knife was planted upon the accused. He also refuted having not visited the place along with the accused from where the said knife was recovered or that all the documents pertaining to the recovery of knife were prepared in the police station.
37. Relying heavily on the testimony of the afore-noted recovery witnesses, the prosecution also sought to prove that the knife Ex. P9 recovered at the instance of the accused was in fact the weapon of the offence as a medical opinion in this regard was also obtained, which is proved from the testimony of PW3 Dr. Swati Tyagi who deposed about the moving of an application seeking subsequent opinion on the weapon of the offence which was marked to her and Dr. Benjy Tom Varughese and they upon examination gave the opinion that injury no. 1 which proved fatal for the deceased could be possible by the alleged weapon which was produced for examination. Prosecution has further relied upon the testimony of PW18 Dr. Garima Chaudhary, Senior Scientist and her report Ex. PW18/A to prove that the knife recovered at the instance of the accused from her house was containing the blood stains of the deceased.
38. Before placing reliance on the FSL Report Ex. PW18/A and coming to the conclusion that the knife Ex. P9 in fact contained the blood marks matching the blood group of the SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 31 of 50 deceased, the circumstances surrounding the recovery of the knife and its custody during the period while it was being kept at the malkhana before the dispatching the same to FSL for forensic examination are to be appreciated. The testimony of PW10 SI Prem, PW12 W/Ct. Chanchal and PW16 Inspector Shailendra Singh is that the knife Ex. P9 was got recovered from the house of the accused at her instance on 20.06.2019 which was seized with the seal of 'SS' vide seizure memo Ex. PW10/I the knife along with other exhibits collected on 20.06.2019 were deposited in the malkhana on 21.06.2019 as per register Ex. PW9/D. However, the testimony of PW8 HC Amit Kumar and the Road Certificate Ex. PW8/C demonstrate that the knife Ex. P9 was sent to the FSL for forensic examination on 28.10.2020 through Ct. Babloo vide RC No. 305/21/2020 to deposit the same at RFSL Yaswant Place Chanakyapuri, New Delhi. Thus, it clearly shows that for almost one year four months the knife Ex. P9 was kept in the malkhana of the concerned police station and shockingly, there is no explanation forthcoming as to the inordinate delay caused in sending the knife for forensic examination.
39. The record of the judicial file further reveals that it is only when at the stage of the arguments on framing of charges against the accused the aspect of filing of supplementary charge- sheet came to the notice of the then Presiding Officer, the Investigating Agency woke up from stupor and sent the knife along with some of the other exhibits for forensic examination. This is clearly a gratuitous lapse on the part of the Investigating Agency and police officials who were responsible for dispatching SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 32 of 50 the alleged weapon of the offence i.e. knife for forensic analysis immediately after its seizure and depositing of it in the concerned malkhana. The testimony of PW16 IO/SI Shailendra Singh is silent on this aspect and otherwise also no amount of explanation could have justified the procrastination exhibited in sending the crucial piece of evidence i.e. the knife to the FSL. The prosecution was duty bound to prove that the handling and custody of the weapon of the offence is without any blemish and that there is no scope of any tampering being done, but because of the colossal delay of one year four months caused in sending the weapon of the offence to FSL for forensic examination, the fact of tampering with the alleged weapon of the offence cannot be ruled out.
40. Though, PW18 Dr. Garima Chaudhary, during her re-examination by this Court on 01.10.2024, was specifically asked as to the maximum time period upto which the blood stains on the knife can be examined to find out its DNA profile, to which her response was that if the sample is preserved properly as per the Standard Operating Protocol, it can be analyzed for DNA profiling upto many years, but there is nothing on record which is dispositive of the fact that the knife Ex. P9 on which allegedly the blood stains were found upon forensic analysis was kept and preserved properly and in order in the malkhana for the entire period of one year and four months.
41. It is also discerned from the testimony of PW10 and PW16 that the recovered knife Ex. P9 was stated to be washed by SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 33 of 50 the accused with water and soap and hidden with other utensils in the kitchen. It is not made out from their testimony that the said knife contained any blood stains visible with naked eyes, though, the science related to forensic examination is capable of tracing the blood marks on an object even if the object is washed of with the ulterior motive to evade detection of blood marks. PW18 Dr. Garima Chaudhary also clarified the position in this regard when she was posed a specific query by the Court in the form of Court Question 4 which for reference is extracted as under :
"Question-For how long the blood stains of a human on a knife can be detected in case the knife is washed out soon after committing the crime ?
Answer-Nature of washing also determine the possibility of presence of any stains on the exhibit. After washing, if some traces of biological stain remains on the exhibit and this exhibit is then preserved, we can do the DNA profiling upto many years."
42. In this case, the knife Ex. P9 is stated to be washed with soap water but even if it is assumed that the knife still contained some blood stains, the next requirement is to preserve and store it properly and then to send it for forensic analysis at the earliest. And if for some reason the exhibit could not be sent with immediacy then at least the same should be sent within a reasonable time. In the case in hand, as is manifest from the record as noted above, the knife Ex. P9 was sent to FSL almost one year and four months after it was deposited in malkhana and SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 34 of 50 no justification at all has been put forth for such delay, much less any plausible justification. In such eventuality, it is not safe to rely on this shred of evidence.
43. To buttress the aforesaid view, some of the Judgments can be alluded to where the Court took note of the unconscionable delay caused in sending the case property for forensic examination.
• In Judgment dated 22.03.2006 titled as Bikkar Singh Vs State of Punjab of High Court of Punjab and Haryana at Chandigarh, paragraph no. 13 is relevant to note which is as under :
"13. Now adverting to the last point of argument, raised on behalf of the parties, in this case, recovery of contraband substance is alleged to have taken place on June 10, 1993 and thereafter samples and other case property were deposited in the malkhana of Police Station on June 11, 1993 and the samples of contraband substance were handed over to PW-1 Constable Shamsher Singh on 12.8.1993 for analysis at the Forensic Science Laboratory, Punjab, Chandigarh. This delay of more than two months in sending the samples for analysis has not been explained and hence the same also causes a dent in the prosecution story. In this view of the matter, tampering of the samples, which remained in the possession of the police for SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 35 of 50 more than two months cannot be ruled out."
• In Bail Application No. 2331/2023 dated 27.02.2024 passed by High Court of Delhi in Tannu Chawla Vs State (NCT of Delhi), paragraph no. 24 is relevant to note which are as under :
"24. There is also gross delay of 37 to 38 days in sending the alleged offence weapon i.e. knife to FSL. The petitioner was arrested on 05.01.2014 and the recovery of knife was allegedly made on 07.01.2014, but the same was sent to the FSL on 15.02.2014 which also prima facie raises doubt as regard the recovery of the same at the instance of the petitioner."
• In Judgment dated 06.04.2009 in Crl. A. No. 726/2005 titled as Ahmed Ali Sardar Vs State of High Court of Delhi, paragraph no. 26 is relevant to note which are as under :
"26. That the case property was sent to the FSL very late, is not always fatal to a case. In a given case it may be fatal and in a given case it may not be fatal. It is settled law that when the direct testimony of the eye- witnesses inspires confidence and fully establishes the prosecution version, failure or omission or negligence on part of the Investigating Officer cannot affect the credibility of the prosecution version. (See the decision of Supreme Court SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 36 of 50 reported as Ram Bihari Yadav v. State of Bihar and Ors. AIR 1988 SC 1850)."
• In Judgment dated 22.08.2024 in Criminal Appeal No. 1823 of 2018 titled as Neelmani Sahu Vs State of Chhattisgarh of High Court of Chattisgarh, paragraph no. 22 and 23 are relevant to note which are as under :
"22. Very recently, in the matter of Rahul v. State of Delhi, Ministry of Home Affairs MANU/SC/1455/ 2022 : 2022:INSC:1176 :
(2023) 1 SCC 83, their Lordships of the Supreme Court (three-Judges Bench), while considering the evidentiary value of DNA evidence and taking note of decision of Manoj v. State of Madhya Pradesh MANU/SC/ 0711/2022 : 2022:INSC:606 : (2023) 2 SCC 353, held that the DNA evidence is in the nature of opinion evidence like any other opinion evidence, its probative value varies from case to case and held in para-38 as under:
"38. It is true that PW
23 Dr. B.K. Mohapatra, Senior Scientific Officer (Biology) of CFSL, New Delhi had stepped into the witness box and his report regarding DNA profiling was exhibited as Ex. PW-23/A, however mere exhibiting a document, would not prove its contents. The record shows that all the samples relating to the SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 37 of 50 accused and relating to the deceased were seized by the Investigating Officer on 14.02.2012 and 16.02.2012; and they were sent to CFSL for examination on 27.02.2012. During this period, they remained in the Malkhana of the Police Station. Under the circumstances, the possibility of tampering with the samples collected also could not be ruled out. Neither the Trial Court nor the High Court has examined the underlying basis of the findings in the DNA reports nor have they examined the fact whether the techniques were reliably applied by the expert. In absence of such evidence on record, all the reports with regard to the DNA profiling become highly vulnerable, more particularly when the collection and sealing of the samples sent for examination were also not free from suspicion."
23. In view of aforesaid legal position qua DNA profiling report and its probative value, the prosecution is duty bound to prove the guilt of the accused beyond reasonable doubt and burden is always upon the prosecution to lead evidence by taking all the precautions for proving DNA evidence. It is necessary for the prosecution SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 38 of 50 as the entire process of collecting the blood samples for DNA profiling is controlled and done by the human agencies i.e. doctors and the investigating officers. Every step to preserve the sample from manipulation/ contamination has to be proved, as absence of those steps may cause prejudice to the accused. The prosecution is required to put all the positive evidence regarding the fact that all the precautions have been taken by the doctors as well as by the police officials regarding the preservation of the DNA samples. As held in the matter of Pattu Rajan vs. state of Tamil Nadu MANU/SC/0439/2019 :
2019:INSC:420 : (2019) 4 SCC 771, DNA report is "an opinion" and its probative value varies from case to case. The science of DNA is at a developing stage, as such, it will be risky to solely rely upon the DNA report to base conviction in absence of any substantive piece of evidence."
44. Further, if the FSL report Ex. PW18/A is analyzed, as per the conclusion, on the clothes of the accused Ex. P8 which are shown to be recovered at her instance from her home vide seizure memo Ex. PW10/J, which she was stated to be wearing at the time of the incident, no blood stains of the deceased were found. With regard to the knife Ex. P9, though blood stains of the deceased was found, but PW18 in her cross-examination could not tell the part of the knife where the blood of the deceased was SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 39 of 50 found. It is a common knowledge that a kitchen knife has a sharp edge part and a handle. The FSL report should clearly spell out on which part of the knife the blood was detected, which is conspicuously omitted in the FSL report and PW 18 expressed her ignorance regarding the same.
45. Another aspect related to the recovery of the knife Ex. P9 which further taints it is the absence of public witnesses in the recovery proceedings. PW 10 SI Prem Kumar fessed up in his cross-examination that IO did not record the statement of any public person on 19.06.2019, 20.06.2019 and 21.06.2019.
Further, PW16 IO, in his cross-examination, claimed to have reached the spot from where the alleged weapon of offence was got recovered at about 12-12.30 PM, but with regard to the presence of public persons, his response was that no public persons were present there at the time of recovery of weapon of offence. This claim of IO does not appeal to the Court as it is difficult to believe that in afternoon hours the building which otherwise houses many residents was vacant and no public persons could be associated. IO also failed to affirm that he diligently strove to look for public persons to witness the recovery of such a crucial piece of evidence. Given the nature of the case and gravity of the offence, IO ought to have exercised due diligence before embarking upon the recovery proceedings. Though, it is not a rule of law that in every recovery proceeding, independent witness should be associated before which recovery could be acted upon, but in appropriate cases, the investigation should reflect that efforts were made to join public witnesses SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 40 of 50 despite which none could join, but in this case the testimony of the recovery witnesses PW10, PW12 and PW16 IO does not evince that any diligence was shown to associate any public person in the recovery proceeding of alleged weapon of offence i.e knife Ex. P9.
46. Reliance can be placed upon the following Judgments where the emphasis was laid on joining public witnesses.
• In Judgment dated 03.09.2002 in Criminal Appeal No. 465 of 2000 titled as Budhdev Paul Vs State, paragraph no. 8 is relevant to note which are as under :
"8. It is the case of the accused that he handed over his clothes to the police on their asking but the clothes were not blood stained. The blood on them has been smeared at the police station where the dead body was kept in order to create evidence.
Another interesting feature is that the three public witnesses who were allegedly present at the time of recovery of the clothes have not been signatories to the seizure memo. The blood stains on the clothes, in view of the above, become doubtful. There was every possibility of the clothes being stained in the police station where the dead body was kept for about four hours. The Investigating officer as also PW-9 omitted to state that the body was kept in the police SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 41 of 50 station before being sent to the mortuary. This suppression creates doubt regarding the veracity of the recoveries and also the manner in which the blood came on the clothes. The recovery of knife, according to the Prosecution, was on 12.11.1996, but PW-9. who is a witness to the recovery of the knife, has stated in his supplementary statement under Section 161 of the Criminal Procedure Code that the same was recovered on 23.11.1996. He was duly confronted with this. Further, no public witness was joined in the recovery of the knife which also makes this recovery doubtful. Handle- grips of the scooter taken into possession on 12.11.1996 and sent to the CFSL, had traces of human blood on them, but PW-5, Surinder Singh Sethi, owner of the scooter, who had brought the same to the police station has categorically stated that he did not notice presence of any blood on them nor were the grips sealed in his presence.
Since the recoveries do not inspire confidence, the chain of circumstances leading to an irresistible conclusion is incomplete. Last seen is one of the links and not sufficient to compete the chain of circumstances and to bring home guilt of the accused. Motive. even if proved, does not lead to the irresistible conclusion that it was the accused who had done away the deceased. The Prosecution, having failed to establish the chain of circumstances, has failed to bring home guilt of SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 42 of 50 the accused. Consequently, the judgment and order 3.5.2000 and 6.5.2000 are set aside and the appeal is allowed. The appellant shall be set at liberty forthwith, if not wanted in any other case. The appellant be informed."
• In Judgment dated 24.02.2018 in Crl. A. 373/2017 titled as Rajesh Vs State of High Court of Delhi, paragraph no. 19 is relevant to note which are as under :
"19. Recovery of the crime weapon i.e. knife pursuant to the appellant's disclosure statement on 30.06.2011 from a place opposite metro depot towards Khadar side is also trustless. Again, at the time of alleged recovery, no independent public witness was associated or joined. The knife was allegedly recovered from a distance of 10/12 meters away from the crime spot. It was not disclosed if the crime weapon was lying at a place which was specifically in the appellant's knowledge and it was not an open place accessible to the public at large. It does not appeal to mind that after visiting the spot at the time of recovery of the body, the police team would not make any efforts to find out the crime weapon in the surrounding area and the knife allegedly used would remain lying undisturbed for so many days at the spot. Besides this, mere recovery of the knife is inconsequential. No finger prints of the appellant were SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 43 of 50 detected on the knife. It was also not got ascertained as to what blood group was found on the said knife. On 01.07.2011, efforts were made by the investigating agency to find out the source from where the said knife was purchased or procured by the appellant.
These efforts remained unfruitful and the police was unable to find out the shopkeeper/vendor, from whom the said knife was purchased or arranged by the appellant. The knife allegedly recovered was not shown to PW-20 (Dr. Neha Gupta) who had conducted postmortem examination on the body to find out if the injuries sustained by the victim were possible with the said weapon."
• In Judgment dated 28.05.2024 in CRA-D-617-DB-2003 (O&M) titled as Ranbir Singh & Ors Vs State of Haryana of High Court of Punjab and Haryana, paragraph no. 21 is relevant to note which are as under :
"21. Still further, it has been stated that in pursuance of the disclosure statement suffered by Joginder Singh @ Chela, appellant No. 2/accused, a knife was recovered from him. However from the FSL report Ex.PL, the blood could not be detected on the knife which was recovered from appellant No. 2. Further, it is an admitted case of the prosecution that at the time of the alleged recovery of knife from appellant No. 2, no SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 44 of 50 private witness was allowed to join the police team, even though the police had ample opportunity to do so. Still further, no doubt, the recovery of a material object at the disclosure of the accused is important in view of section 27 of the Evidence Act, but such disclosure alone would not automatically lead to the conclusion that the offence was committed by the accused. In fact, the burden lies on the prosecution to establish a close link between the discovery of material objects and its use in commission of the offence.
What is admissible under Section 27 of the Evidence Act is the information leading to discovery and not any opinion formed on it by the prosecution. In the present case, the knife, which was allegedly recovered from appellant No. 2, was not blood stained and the recovery memos were prepared only in the presence of police and no independent witness was joined by the police. Thus, the recovery of knife from the appellant No. 2 was doubtful in the instant case."
• In Anoop Vs State, 1992 (2) C.C. Cases 314 (HC) of High Court of Delhi, paragraph no. 18 is relevant to note which are as under :
"18. It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 45 of 50 witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence."
• In Judgment dated 08.08.2023 in Crl. Appeal No. 558 of 2016 titled as Asha Devi Vs. State of Himachal Pradesh of High Court of Himachal Pradesh, paragraphs no. 51 and 55 are relevant to note which are as under :
"51. However, what is more glaring is the fact that in the entire process of lifting the finger prints, hair etc., no independent witness was associated, rather no efforts were made to join an independent witness. On account of this the case of the prosecution is to be eyed with suspicion.
55. No doubt, in absence of corroboration through an independent source, the evidence of the official witness cannot be disbelieved and distrusted, blind foldedly, if the SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 46 of 50 same is found to be trustworthy. However, when the evidence of the official witness is found to be not cogent, convincing, reliable and trustworthy, then on account of non-corroboration thereof, through an independent source certainly doubt is cast on the prosecution story."
47. In so far charge under Section 14(A) of the Foreigners Act, 1946 is concerned, again the prosecution has failed miserably to furnish any evidence to substantiate the said charge. IO PW16 has failed to collect any material or cite any witness to prove that the accused remained or stayed in India for a period exceeding the period for which the visa was issued to her in violation of the provision of Foreigners Act, 1946.
48. From the foregoing, it is clear that PW16 IO Shailendra Singh Jaakhar, who helmed the investigation, has not acted with diligence and is liable for dereliction of his duties. There is a mandate also to comply with the judgment of the Supreme Court of India in case titled as State of Gujarat Vs. Kishanbhai, decided on 07.01.2014. The relevant paragraph of the said judgment is as under:
"21. On the culmination of a criminal case in acquittal, the concerned investigating / prosecuting official (s) responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 47 of 50 the consequences of his lapse, by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the concerned official may be withdrawn from investigative responsibilities, permanently or temporarily, depending purely on his culpability. We also feel compelled to require the adoption of some indispensable measures, which may reduce the malady suffered by parties on both sides of criminal litigation. Accordingly we direct, the Home Department of every State Government, to formulate a procedure for taking action against all erring investigating/prosecuting officials/officers. All such erring officials/officers identified, as responsible for failure of a prosecution case, on account of sheer negligence or because of culpable lapses, must suffer departmental action. The above mechanism formulated would infuse seriousness in the performance of investigating and prosecuting duties, and would ensure that investigation and prosecution are purposeful and decisive. The instant direction shall also be given effect to within 6 months."
49. Thus, I deem it expedient to issue show cause notice to the then Investigating Officer Inspector Shailendra Singh Jaakhar as to why departmental inquiry be not recommended against him. Copy of the Judgment be sent to worthy DCP concerned to do the needful with directions to identify the place SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 48 of 50 of posting of the official and to apprise him of the proceeding against him within 03 days from the receipt of Judgment to file his response within further 07 days. Worthy DCP is also directed to fix the responsibility of the police personnel who failed to send the knife Ex. P9 to forensic department with immediate effect and report to this Court.
50. Before wrapping up the Judgment, I also wish to highlight a disturbing feature which has been encountered in many cases which is that there have been cases where the exhibits keep on lying in the malkhana for indefinite period of time without being sent to FSL for forensic examination wherever it is required. Sometimes this happens due to routine transfers of the investigating officers but in such cases there has to be a mechanism in place to keep a tab on cases which require urgent intervention on the part of concerned SHO or the newly appointed Investigating Officer to send the exhibits for the examination / analysis. It is also seen in some cases that due to lapses of these kinds on the part of the Investigating Agency, by the time the exhibits are sent for forensic examination, some of those get contaminated or putrefied thereby ruling out the possibility of giving any opinion on those exhibits. The decision in some of those cases predicated upon circumstantial evidence, hinges upon the outcome of the forensic examination and in the absence of any conclusive finding by the FSL, the entire case gets jeopardized. Therefore, it is also deemed expedient that worthy DCP be called upon to take corrective steps in this regard and ensure a mechanism in place to eschew a situation of the SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 49 of 50 kind in the present case so that the important samples / exhibits collected during the course of investigation are sent to the competent authority for forensic or scientific examination at the earliest and also to ensure its proper storage and preservation till the time those are kept in malkhana.
51. In the circumstances, it is held that the prosecution has dropped the balls in so far as assembling the charges against the accused under Section 302 IPC and Section 14(A) of the Foreigners Act, 1946. Resultantly, accused Jasmine Isack @ Masisa Angel Isack is acquitted of both the charges and is set at liberty. File be consigned to Record Room.
PRONOUNCED IN OPEN COURT ON THIS 30th DAY OF NOVEMBER 2024 Digitally signed NAVJEET by NAVJEET BUDHIRAJ BUDHIRAJ Date: 2024.12.03 16:21:24 +0530 (Navjeet Budhiraja) ASJ-02, South District Saket Courts, New Delhi Certified that this Judgment contains 50 pages and each page bears my signatures.
Digitally signed by NAVJEETNAVJEET BUDHIRAJ BUDHIRAJ Date:
2024.12.03 16:21:29 +0530 (Navjeet Budhiraja) ASJ-02, South District Saket Courts, New Delhi 30.11.2024 SC No. 625/2019 FIR No. 370/2019 State Vs Jasmine Isack PS Mehrauli Page No. 50 of 50