Delhi District Court
State vs Suresh Menon on 20 November, 2009
:1:
In the Court of Ms. Shalinder Kaur
Additional Sessions Judge-FTC (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 108/09
State Versus Suresh Menon
S/o Balakrishonan
R/o A-2, Hols Road,
Kilpol (Madras)
Case arising out of
FIR No. : 183/05
Police Station : Nabi Karim
Under Section : 302 IPC
Judgment reserved on : 29.10.09.
Judgment pronounced on : 20.11.09.
JUDGMENT
Case History
1. Accused Suresh Menon stands trial before this Court for having committed murder of one Sarojini on 21.05.05 while she was staying in room no.107 in Hotel India Continental, 9143/3, Multani Dhanda, Nabi Karim, Delhi.
2. Briefly stated, the case of the prosecution is that Sarojini had come to stay in hotel India Continental on 16.05.05 at 6.45 AM. She was allotted room no.110 and she checked out of the SC: 108/09 State vs. Suresh Menon :2: hotel at 7 AM on 20.05.05. However, she had deposited her luggage in the hotel and again came back to stay in the hotel on 21.05.05 at 9.15 AM, then room no.107 was allotted to her. At that time, one person also came with her whose detailed description was provided to the police by Hotel manager Virender Singh. At 9.30 AM, they both ordered from the room for two Lassi and at 2 PM, lunch was ordered by them. Till 4.30 PM, that person remained with Sarojini in her room and then he left the hotel without telling anyone. Thereafter no one came to meet Sarojini nor she came out of the room. She also did not order for food at night. On 22.05.05, at 8.10 AM, Waiter Pal Singh pressed the bell of room no.107 but no one opened the door and there was no response even though he rang the bell for quite sometime. Therefore, the police of police station Nabi karim was informed.
3. This information was recorded by HC Rajender Singh as DD No.13A at 8.20 AM dated 22.05.05. Copy of the DD was handed over to SI Pradeep who along with Constable Lakhbir Singh reached the place of occurrence. The door of room no.107 was opened with help of a duplicate key and Sarojini was found lying on her face dead on the bed. Blood had come out from her nose and mouth and lot of blood was found on the bed and on the pillow. The Pallu of the Saree worn by the dead body was around the neck. SI Pradeep Kumar recorded statement of Sh. Virender Singh, Manager of the hotel. He stated that he suspected the person who had come with Sarojini in the hotel for having committed her murder and whom he could identify on seeing. SI SC: 108/09 State vs. Suresh Menon :3: Pradeep on his statement prepared the rukka and sent the same to the police station for registration of FIR under Section 302 IPC. The investigations of the case were thereupon handed over to Inspector Banwari lal.
4. During investigations, Inspector Banwari Lal got the spot inspected and photographed from the Crime Team, site plan was prepared and different exhibits were lifted from the room and seized vide respective seizure memos. He recorded the statement of the witnesses, arranged for sending the dead body for postmortem. The Investigating Officer also got the portrait of the suspect prepared and studied the phone call details, made by Sarojini from the hotel. On checking the call details, he found that the deceased had made telephone calls on two mobile numbers which were being used in same handset. The call details of these two mobile numbers were also taken and studied and it was found that the maximum calls were made to Hotel Sita, DBG Road, Pahar Ganj. Both the mobile numbers were intercepted.
5. On 25.05.05, the Investigating Officer went to Hotel Sita along with witness Virender for further investigations where Virender identified the accused and told that on the day of incident, he was with Sarojini in her hotel room. The disclosure statement of the accused was recorded, in pursuance to which he got recovered the key of hotel room no.107, his mobile phone which was without any sim card. He also got recovered his pant and shirt which he was wearing at the time of incident. All these SC: 108/09 State vs. Suresh Menon :4: articles were sealed and seized by the IO and the accused was arrested in this case. The postmortem report and reports from CFSL were obtained. On completion of the investigations, the accused was sent for trial for having committed the offence, punishable under Section 302 IPC and on committal to Sessions, he was charged accordingly. The accused pleaded not guilty and claimed trial.
Evidence
6. To prove the prosecution version, the prosecution has examined 22 witnesses.
7. PW1 Sh. Deepak Chib is the proprietor of Hotel India Continental where the deceased had stayed from 16.05.05 to 20.05.05 and on 21.05.05 but she was found dead on 22.05.05 at 8.15 AM.
8. PW4 Virender Singh is the Manager of the Hotel India Continental who had narrated the incident to SI Pradeep and FIR was registered on his statement. He identified the accused being the same person who had accompanied the deceased and had remained with her in her room on 21.05.05 till 4.30 PM. He is also a witness to the various seizures made by the police from Hotel India Continental as well as from Hotel Sita where the accused was staying.
SC: 108/09 State vs. Suresh Menon :5:
9. PW7 Shiv Nandan Paswan was working as a Waiter in Hotel India Continental. On 21.05.05, he had collected the empty Lassi glasses at about 9.45 AM from the hotel room no.107 and utensils at about 2.30 PM after lunch was served to the accused and the deceased in the said room. According to this witness, on both the occasions, he had found the deceased and the accused in the room and the accused left the room at 4.30 PM.
10. PW16 Rajpal Singh, another Waiter of the same hotel had served two glasses of Lassi in hotel room no.107 to the accused and deceased at 9.30 AM. He had also served lunch to both of them at 2.30 PM. According to the said witness also, the accused was seen in the hotel till 4/4.30 PM. Besides on 22.05.05, he had gone to room no.107 at 8/8.10 AM when no one responded to his calls to open the door of the room. He informed about it to Manager Virender Singh who reported the matter to the police.
11. PW2 Pawan Chopra was the Manager of Hotel Sita who had identified the accused who had been staying in the said hotel with his wife in room no.209. He is also a witness to various seizures made from inside the room no.209.
12. PW3 Hanumant Rao is the husband of the deceased who had identified her dead body which he had received after postmortem.
SC: 108/09 State vs. Suresh Menon :6:
13. PW5 HC Kishan is the Photographer. He had taken 13 photographs of dead body lying on the bed in hotel room no.107 in Hotel India Continental.
14. PW6 HC Rajender Singh had recorded DD No.13A which he has proved as Ex.PW6/A. The said DD was assigned to SI Pradeep who along with Constable Lakhbir had gone to the spot.
15. PW8 HC Om Prakash was posted as MHCM while the investigations of this case were going on. He had received various sealed pulandas from Inspector Banwari Lal on different dates. He had also sent some of the sealed pulandas to FSL, Rohini through HC Doongarsi Dass. The witness has proved various entries made in register no.19 vide which all the sealed pulandas were received in Malkhana and were sent to FSL from Malkhana.
16. PW9 Dr. Sunil, Senior Resident, Department of Forensic, MAMC, had conducted autopsy on the dead body of Sarojini on 24.05.05. He had found following four external injuries on her body :-
(i).Contusion 3 x 2 cm reddish in colour present over left cheek, 1 cm outer to left angle of mouth.
(ii).Contusion 3 x 1.8 cm reddish in colour present over right cheek, 1 cm outer to right angle of mouth.
(iii).Contused lacerated wound 1 x.3 cm x .2 cm present over inner side of upper lip.
SC: 108/09 State vs. Suresh Menon :7:
(iv).Contusion 4 x 3 cm reddish in colour present over right side of upper forehead.
17. PW9 has proved the postmortem report, prepared by him as Ex.PW9/B and according to his opinion, the death in this case was due to Asphyxia consequent upon smothering via injury no.1, 2 & 3. Injury no.1, 2 & 3, he had found sufficient to cause death in ordinary course of nature and injury no.4 was caused by blunt force impact to the head. All the injuries were antemortem in nature and fresh in duration. He had opined the time since death was about three days.
18. PW10 SI Mahesh had prepared a scaled site plan which he proved as Ex.PW10/A.
19. Under the supervision of PW11 Constable Ashok Kumar, the dead body of Sarojini was removed from the hotel room no.107 to the Mortuary of JPN Hospital which remained under his supervision till it was handed over to the legal heirs after the postmortem.
20. PW12 Constable Lakhbir Singh had accompanied SI Pradeep to Hotel India Continental on 22.05.05 after having received DD No.13A. He had also taken the rukka to police station Nabi Karim for registration of the FIR and handed over the copy of FIR and rukka to Inspector Banwari Lal.
SC: 108/09 State vs. Suresh Menon :8:
21. PW13 HC Vinod had collected the records of mobile phone numbers 9811659860 & 9871919763 on 21.05.05 from Bharti Cellular Company.
22. PW14 SI Pradeep Kumar had initially investigated the case and he proved the investigations, conducted by him.
23. PW15 SI Ladu Ram was a member of the Crime Team and on 22.05.05, he had tried to lift the finger print impressions from a glass tumbler and a jug like object in hotel room no.107 but he could not develop any print. He proved his report as Ex.PW15/A.
24. PW17 HC Doongarsi Das had taken six sealed parcels bearing seals of 'BL' & 'MAMC' along with sample seals on 21.06.05 and deposited the same at FSL, Rohini.
25. PW18 HC Balbir Singh had joined the investigations of the case with Inspector Banwari Lal on 25.05.05 and they had gone to Hotel India Continental. He is a witness to the disclosure statement, made by the accused as well as sealing of various exhibits, collected from there and seized by the IO. On 03.06.05, he had also collected the sealed envelope having blood sample and sample seal of the hospital and sealed viscera which he had handed over to the IO and same were seized by the IO.
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26. PW19 Sh. Gurdeep Singh Saini, Learned ASJ had conducted the TIP proceedings of the accused while he was posted as Metropolitan Magistrate, Delhi. On 13.06.06, he had gone to Central Jail, Tihar for holding the TIP proceedings but the accused refused to join the TIP proceedings. PW19 proved the proceedings conducted by him as Ex.PW19/B and the certificate appended with the proceedings as Ex.PW19/C.
27. PW20 R.K. Singh, Nodal Officer, Bharti Airtel had produced the call record details of mobile number 9871919763 from 01.05.05 till 31.05.05 which he proved as Ex.PW20/A.
28. PW21 Retd Inspector Banwari Lal is the main Investigating Officer of the case. After registration of the FIR, he had joined the investigations which he has proved in his testimony.
29. PW22 Gulshan Arora, Nodal Officer from Hutch Company had produced the record of mobile number 9811659860 from 01.05.05 to 24.05.05 which he proved as Ex.PW22/A.
30. This is the entire evidence adduced by the prosecution to incriminate the accused. The plea of the accused as recorded in the statement U/s 313 Cr.P.C was of denial of the entire evidence. He has not examined any witness in his defence.
SC: 108/09 State vs. Suresh Menon :10: Contentions
31. Learned APP urged that the case of the prosecution rests on circumstantial evidence and all the circumstances of the case have been conclusively proved by the prosecution. The evidence led by it is clinching and a complete chain of circumstances has been formulated through the oral and documentary evidence, led by the prosecution which is undoubtedly pointing towards the commission of offence by the accused.
32. It was argued that there may be certain contradictions appearing in the testimony of the witnesses which are minor and are bound to appear due to lapse of time. Moreover, there are certain admissions made by the accused with respect to some circumstances which is an added benefit for the prosecution and its case has been conclusively proved. To impress upon the arguments raised, Learned APP has relied upon the judgment reported as A. Yadhav vs. State of Karnatka 2008 V AD (Cr.) (SC) 725.
33. On the other hand, Learned Counsel for the accused has challenged the prosecution version on two accounts. First that the investigations have not been conducted according to Punjab Police Rules by the IO. It was argued that after all, the IO was dealing with the investigations of a murder case but the investigations have been conducted in very casual manner. The SC: 108/09 State vs. Suresh Menon :11: recovery of the incriminating articles at the instance of the accused is doubtful and by no imagination, the circumstances alleged by the prosecution connect the accused with the commission of the offence. It was contended that the prosecution has also not made available the various documents like Kitchen Order Taking (KOT) record of the hotel, ownership record of two mobile numbers, relied by the prosecution and in the absence of the documentary evidence, the oral testimony of the witnesses with respect to last seen cannot be accepted.
34. Secondly, the testimony of the prosecution witnesses is contradictory, therefore, the prosecution has not been able to establish a complete chain of circumstances, pointing towards the guilt of the accused. Whereas the accused being an innocent person has been falsely implicated in this case. In support of the contentions, reliance has been placed upon the following judgments :
(i).State of Maharashtra vs. Mangilal III (2009) SLT 201.
(ii).Roop Singh @ Rupa vs. State of Punjab 2008 Crl. LJ 3184.
(iii).Venkatesan vs. State of Tamil Nadu 2008 Cri. LJ 3052.
(iv).Rambilas & Ors. vs. State of M.P. 1997 SCC (Cri.) 1222.
(v).Vinay D. Nagar vs. State of Rajasthan 2009 (2) JCC 1185.
(vi).Kegan Bera & Anr. vs. State of West Bengal AIR 1994 SC 1511.
(vii).Shantabai & Ors. vs. State of Maharashtra 2008 (2) JCC 1080.
(viii).Sattatiya @ Satish Rajanna Kartalla vs. State of Maharashtra (2008) 3 SCC 210.
(ix).B. Venkatswamy vs. Vijaya Nehru & Anr. (2008) 10 SCC 260.
SC: 108/09 State vs. Suresh Menon :12:
(x).Subramaniam vs. State of Tamil Nadu & Anr. IV (2009) SLT
384.
(xi).Abdulwahab Abdulmajid Baloch vs. State of Gujarat JT 2009 (5) SC 58
(xii).Tipparam Prabhakar vs. State of Andhra Pradesh JT 2009 (6) SC 205
(xiii).Buta Singh vs. Emperor AIR 1939 Lahore 194.
(xiv).Gamparai Hrudayaraju vs. State of A.P. JT 2009 (5) SC 475.
Findings
35. The law with respect to circumstantial evidence has been well settled by the Apex Court in a Catina of judgments. In the judgment reported as C. Chenga Reddy and Ors. vs. State of AP (1996) 10 SCC 193 wherein it has been observed by the Hon'ble Supreme Court :-
" In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
36. In the light of the above law, let us examine the circumstances, highlighted by the prosecution :-
SC: 108/09 State vs. Suresh Menon :13:
(i).Homicidal death of Sarojini.
(ii).Mobile phone call details of the accused with respect to mobile numbers 9811659860 & 9871919763 and recovery of mobile phone of the accused.
(iii).Sketch of accused.
(iv).Last seen evidence.
(v).Recovery of key of hotel room no.107 of Hotel India Continental from the possession of the accused.
(vi).Recovery of clothes of the accused, stated to be worn by him at the time of murder.
(vii).Motive.
(viii).TIP refusal by the accused.
(ix).Recovery of certificates/ documents of the accused from the bag recovered from hotel room no.107.
(i).Homicidal death of Sarojini.
37. PW14 SI Pradeep Kumar and PW21 Inspector Banwari Lal have consistently deposed that when they came to hotel room no.107 of Hotel India Continental, Multani Dhanda, Nabi Karim, they had found the dead body of one lady lying on bed, the face of the body was downward towards the bed. There was no immediate bleeding from the mouth and nostrils but the blood had clotted there, the pallu of the saree was tied around the neck. Blood had spread on the pillow cover and bed sheet.
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38. PW21 had conducted the inquest proceedings and the dead body was sent for postmortem. PW9 Dr. Sunil Kumar conducted the postmortem and had found the death was homicidal and not suicidal or accidental. Thus, the prosecution has been able to prove that it is a case of homicidal death of Sarojini.
(ii).Mobile phone call details of the accused with respect to mobile numbers 9811659860 & 9871919763 and recovery of mobile phone of the accused.
39. PW21 Inspector Banwari Lal has deposed that during investigations, it was disclosed to him by PW4 Virender Singh about the deceased having made one phone call on 21.05.05 from the STD Booth in the hotel. On checking the call details, he found that the call was made on a mobile number 9811659860. He collected the cash slip of the call charges which is Ex.PW4/M. He also collected the cash slips of the call made by Saronini on 20.05.05 which are Ex.PW4/K & Ex.PW4/L. Thereafter he collected the call details of mobile phone number 9811659860 which is Ex.PW21/D. From these call details, it was revealed to the IO that this number remained activated on IMEI No.404110205881868 upto 20.05.05 and thereafter another sim card number 9871919763 was activated on the said IMEI number. He also collected the call details of mobile number 9871919763 w.e.f.01.05.05 to 23.05.05 which is Ex.PW21/E. After studying the call details, it was revealed that from these two mobile numbers, SC: 108/09 State vs. Suresh Menon :15: frequent calls were made to Hotel Sita, Nabi Karim. Thereafter a surveillance was kept on Hotel Sita and finally it led to the arrest of the accused.
40. PW2 Pawan Chopra, PW4 Virender Singh and PW21 Inspector Banwari Lal are the witnesses to the recovery of the mobile phone which was seized vide seizure memo Ex.PW2/C from the accused. The accused had produced the said mobile phone from underneath the pillow on the bed in room no.209 of Hotel Sita which was sealed with the seal of 'BL'. From the seizure memo Ex.PW2/C, it is revealed that IMEI number of the mobile phone, Ex.P-4 is 350179626577165 make Panasonic, grey colour, model number EB-GD92. No sim card was recovered from this mobile phone.
41. PW4 Virender Singh has deposed that the deceased checked in their hotel on 16.05.05 in the morning hours and had checked out on 20.05.05 in the morning. On 21.05.05, she again checked in the hotel at about 9 AM. The witness testified that during her stay from 20.05.05 till 21.05.05, she had made phone calls. The duplicate bills of these calls are Ex.PW4/K, Ex.PW4/L & Ex.PW4/M. He had also made entry in the STD call register kept in the hotel. The witness had produced the said STD call register in which the calls made by the customers are recorded. The copy of the register, showing the entries made on 20.05.05 is Ex.PW4/N and those made on 21.05.05 is Ex.PW4/O. SC: 108/09 State vs. Suresh Menon :16:
42. According to Ex.PW4/K, the deceased had made a phone call from the STD of Hotel India Continental on 20.05.05 at 12.48 PM on phone number 08594252353 which is stated to be her residence telephone in Andhra Pradesh. Ex.PW4/L reveals that on 20.05.05 at 13.31 hrs, she made phone call on mobile number 9811659860 while on 21.05.05 at 7.48 AM, she made phone call on the same number, the receipt of which is Ex.PW4/M. However, from Ex.PW4/N & Ex.PW4/O, it cannot be ascertained that whether all the telephone calls as mentioned in these documents have been made only by deceased and if so at what time.
43. PW20 R.K. Singh, Nodal Officer from Bharti Airtel had produced the call details of mobile number 9871919763 from 01.05.05 till 31.05.05 which he has proved as Ex.PW20/A which has also been proved by PW21 SI Pradeep as Ex.PW21/E. The call details reveal that the said number was activated in the mobile phone handset having IMEI No.350179626577160. On 21.05.05 at 10:40:71, out going phone call has been made from this number to the residence of the deceased in Andhra Pradesh. At 12:15:21 and 14:42:56, out going calls have been made to Hotel Sita. However, PW20 has deposed that he did not know in whose name this connection was released and he did not produce the records as the same were not summoned. The accused has taken the plea that the said sim card having mobile numbers 9811659860 & 9871919763 or the mobile phone bearing IMEI SC: 108/09 State vs. Suresh Menon :17: No.350179626577160 and 404110205881868 do not belong to him.
44. PW22 Sh. Gulshan Arora had produced the summoned record of mobile number 9811659860 from 01.05.05 to 24.05.05. He has proved the same as Ex.PW22/A which has also been proved by IO PW21 Inspector Banwari Lal as Ex.PW21/D which was being used in mobile handset bearing IMEI No.404110209881868. PW22 has deposed that as per record, this connection was released in the name of one Salim and the record shows that from 18.05.05 till 21.05.05, the calls of this mobile number were diverted to the other mobile number 9871919763.
45. It was argued on behalf of the accused that the prosecution has failed to link any of the two mobile numbers i.e 9811659860 & 9871919763 with the accused. As far as mobile number 9811659860 is concerned, it belonged to one Salim. The police has not investigated that who is Salim. The IO did not make any attempt to seize the mobile phone handsets with IMEI No.404110209881868 and 350179626577160. Moreover, the records were not produced to show that the mobile number 9871919763 was of the accused and the calls w.e.f.18.05.05 till 21.05.05 were being diverted to his mobile number from the mobile number 9811659860.
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46. Although 14 digits of IMEI number of mobile phone handset Ex.P-4, recovered from the possession of the accused are same to that as mentioned in call details of mobile number 9871919763 Ex.PW21/E. However, the 15th digit of both IMEI numbers is different. The 15th digit of IMEI number of mobile phone handset, recovered from the accused is 5. Whereas that shown in the call details is 0. On the other hand, according to Ex.PW22/A, the call detail record of mobile number 9811659860, the IMEI No. of the phone from which calls were made is 3501796265771624 and IMSI No. is 404110209881868. The prosecution has not been able to explain the same. Moreover, the complete mobile record has not been produced by the prosecution to prove that mobile no.9871919763 was of the accused. However, for the sake of arguments, if it is assumed that the mobile number 9871919763 was not used through mobile phone Ex.P-4 still the same is not fatal to the prosecution case, if prosecution is able to prove the other circumstances relied upon by it.
(iii). Sketch of the accused.
47. PW21 has deposed that on 23.05.05, he got prepared the portrait of the accused with the help of PW4 Virender, Manager of hotel India Continental which was shown in the area to the public persons. The portraits are Ex.PW21/B & Ex.PW21/C. PW Virender had also given the description of the suspect to the police. The witness has not been cross-examined on this aspect.
SC: 108/09 State vs. Suresh Menon :19: A question has been put to the accused about the said incriminating evidence against him while recording his statement under Section 313 Cr.P.C. The accused has replied that the portraits Ex.PW21/B & Ex.PW21/C are not similar to him and after his arrest, the police took his photographs in the police lock up.
48. The accused has been arrested on 25.05.09. In the sketch Ex.PW21/B & Ex.PW21/C, mustaches are seen. PW2 has deposed that the accused was staying in his hotel for three months from March, 05. Prior to 22.05.05, the accused was keeping mustaches which were removed by him thereafter. This witness has not been cross-examined on the said fact. From this, it becomes evident that had the said portrait been prepared after the arrest of the accused then the same would have been without mustaches. Thus, the prosecution has proved that the portraits Ex.PW21/B & Ex.PW21/C which have resemblance with the accused were prepared before the arrest of the accused.
(iv). Last seen evidence.
49. PW4 Virender Singh, PW7 Shiv Nandan Paswan and PW16 Rajpal Singh are the witnesses of last seen. PW4 has deposed that he was working as a Manager in hotel India Continental and his duty hours were from 8 AM to 8 PM. The deceased Sarojini again checked-in their hotel on 21.05.05 at 7/7.15 AM. At about 9 AM, room no.107 was allotted to her. The accused accompanied her as a guest when she checked-in the SC: 108/09 State vs. Suresh Menon :20: hotel. They both sat on a sofa in the lobby of the hotel and were talking to each other. The accused was talking sometimes in Hindi. Then they went to room from where they had passed an order for two lassi and at about 2 PM, ordered for lunch for two people. The accused left the hotel at 4.30 PM. Thereafter no order was received in his presence from room no.107 and no order as per his knowledge came from that room which was checked by him when he came to duty on the next day. The witness categorically deposed that after the departure of the accused from the room of the deceased, none other had gone there. The witness was cross-examined at length on behalf of the accused.
50. It was argued on behalf of the accused that the testimony of this witness is not believable because according to PW3 Hanumant Rao, who is the husband of deceased, his wife could speak a little English but she did not know Hindi at all, therefore, PW4 could not have heard their conversation in Hindi. This argument has no force as PW4 has deposed that the accused was sometimes talking in Hindi. He has not deposed that the deceased was talking in Hindi. Similarly, PW3 has testified that his wife could speak little English but he has not deposed that she could not understand little Hindi also.
51. It was further argued that PW4 has testified that Shankar, the other Manager of the hotel had recorded the entry of check-out of deceased Sarojini in the hotel register on 20.05.05 at SC: 108/09 State vs. Suresh Menon :21: 8 AM and on 21.05.05 her check-in entry was not recorded by PW4. Therefore, Shankar who is a material witness has not been examined by the prosecution. The said argument does not impress upon as it does not demolish the case of the prosecution that PW4 was not present in the hotel at the time of check-in of deceased on 21.05.05. PW4 has stated that his duty hours started from 8 AM. Whereas the deceased had checked-in hotel room no.107 at 9/9.15 AM. No suggestion has been given to the witness that on the said day, he came late. Merely, because the entry in the register for checking-in of the deceased has been made by some other person and not by PW4 does not in any manner affect the credibility of PW4 stating about his presence in the hotel when the deceased was allotted hotel room no.107 at 9 AM on 21.05.05. Moreover, PW4 has testified that the entry in the register is usually made by the customer and the Manager only signs it. Further more, the witness has also correctly deposed about the clothes worn by the accused as well as by the deceased when they checked-in the hotel which further strengthens the fact about the presence of PW4 at that time. Thereafter till 8 PM, the said witness had remained on duty. Thus, there is nothing on record to disbelieve his testimony that on the fateful day, the deceased did not check-in the hotel room no.107 at 9 AM accompanied by the accused as her guest or the accused remained in the hotel till 4.30 PM on the said date. Also, the sketch of the accused was got prepared according to the description given by PW4 proves that he had seen the accused on 21.05.05 in the hotel because after 22.05.05, the accused had SC: 108/09 State vs. Suresh Menon :22: got his mustaches shaved off which are seen in the portraits Ex.PW21/B & Ex.PW21/C.
52. PW7 has deposed that he was working as a Waiter in hotel India Continental. On 21.05.05 at about 7.30 AM, the deceased came back to the hotel and the accused was with her. She had asked for a room in the hotel which was not vacant at that time and she was made to sit in the lobby. The accused remained with her throughout in the lobby. At about 9 AM, deceased Sarojini was given room no.107 and then she and accused went to the said room. PW4 Virender Singh came to duty at 8 AM in the morning. The order for two lassi was given from room no.107 and at about 9.45 PM, he had collected empty glasses of lassi from the room. Order for lunch was given from room no.107 at 2 PM and he had collected the utensils from the room at 2.30 PM. The witness further testified that the accused had throughout remained in the room. Witness also deposed that the accused left the hotel at 4.30 PM thereafter no one came out of room no.107. No order was given for any tea, snacks or dinner. His duty came to end at 8 PM. On the next morning i.e. on 22.05.05, when he joined his duty, he came to know that customer of room no.107 was not opening the door and police had come there in that connection who had recorded his statement.
53. The witness was cross-examined at length on behalf of the accused. He deposed that his duty hours were from 8 AM to 8 PM. It was argued that the testimony of this witness is not SC: 108/09 State vs. Suresh Menon :23: believable as he could not remember, in which other room of the hotel, he had done service on the said day and he could not also tell who was staying in these rooms. The witness has deposed that on the day of the incident, he had done service in room no.107, 108 & 109 and he did not take order for lunch and dinner from room no.108 & 109 on that day. But had served only water in these rooms. It is quite natural that the witness could not remember that who was staying in hotel room no.108 & 109. His testimony cannot be thrown away only on this account. Rather the testimony of PW7 is sincere as he has admitted that on the said day, when the customer came to stay in room no.107, the name of the customer was not known to him. It is quite natural that after the incident of murder, he became aware about the name of the deceased and that is why he could remember it but not the names of the occupants of other rooms on the same floor.
54. PW7 has also deposed that on 21.05.05, he had gone to room no.107 twice. He had seen the customer of room no.107 when she came to the reception of the hotel in the morning to check-in and he also saw her when she was sitting with the accused on the sofa at the reception. He has deposed that he was not shown any photograph of the accused by the police.
55. It was also submitted that PW7 did not see the deceased and the accused on 21.05.05 as he could not tell about the colour of the clothes, worn by the accused and the deceased. PW7 has deposed that the deceased was wearing Saree when she entered SC: 108/09 State vs. Suresh Menon :24: the hotel and the accused was wearing pant & shirt. However, his deposition cannot be discarded only on the ground that he has failed to depose about the colour of the clothes worn by the deceased and the accused. The witness has stated that when he went to collect the glasses of lassi in room no.107, he had seen the face of the accused for about 5-7 seconds. When he had gone to collect the utensils at about 2.30 PM, he stayed there for more than 5 minutes and he had seen the accused in the room which was for about one minute. Thus, from the testimony of PW7, it emerges that he saw the deceased and the accused together in the lobby on 21.05.05 in morning and he saw them together twice in hotel room no.107.
56. PW16 is another witness of the last seen circumstance put forth by the prosecution. He has deposed that on 21.05.05, deceased Sarojini came to the hotel at about 7/7.15 AM. At about 9/9.15 AM, she was allotted room no.107. The accused came with her at 7.15 AM. Both of them went to the room and he had put the luggage inside the room. At about 9 AM, he had served two glasses of lassi to both of them in room no.107. He also served lunch at about 2 PM in the room. He saw the accused till 4/4.30 PM in the room and thereafter he had gone to perform his duty on the other floor. On the next day i.e on 22.05.05 at about 8/8.10 AM, he went to room no.107, knocked the door but no one opened the door and no response came from inside. Then he informed Virender, the Manager of the hotel who informed the police. In the cross-examination, the witness has deposed that his SC: 108/09 State vs. Suresh Menon :25: duty hours were from 8 AM to 8 PM and it was his general duty to receive a call from every room. He has further deposed that he had seen deceased Sarojini at reception as he resided in the same hotel. On that day, in the morning, he had come to reception to take water and saw the deceased there. She was sitting in the lobby on a sofa which is at a close distance from the reception. She was carrying one bag with her. When she went to room no.107, the accused has accompanied her in the room. He had taken lassi in the room at 9.30 AM on the order, given by the accused.
57. PW16 further deposed that he had brought the lassi from outside that is 5-7 shops away from the hotel which took him about 10-15 minutes. He had brought two glass tumblers of lassi, kept in a tray. When he went inside the room with lassi, he saw Sarojini sitting on the bed and accused was sitting on a chair. The witness further deposed that the order for lunch was given by deceased at 2 PM. But he could not recall about the menu of the lunch ordered by her. He delivered the lunch within 20 minutes of the order which he arranged from outside the hotel. The lunch was brought in a polythene bag from the shop which was kept in plates and then served. After serving the lunch, he did not go in that room again. But at about 4 PM, he had heard the voice of a male and a female when he was going upstairs and at that time the room was open a bit and from there, he had seen the accused sitting there.
SC: 108/09 State vs. Suresh Menon :26:
58. To challenge the testimony of all these three witnesses to last seen, it was argued that the witnesses have admitted that there was no kitchen service available in the room, therefore, they had bring the meals from outside the hotel for which after receiving the order for meals, Kitchen Order Taking (KOT) Slip was prepared. The IO has not seized the KOT slips for orders with respect to lassi and qua lunch, stated to have been ordered from room no.107 which is a material piece of evidence. In the absence of this, the best piece of evidence, the oral testimony of PW4, PW7 & PW16 becomes doubtful.
59. Admittedly, the hotel did not have a kitchen and for providing meals in the hotel, the same was being brought from outside and KOT slips used to be prepared. PW7 has testified that as and when a customer places an order, at the reception of the hotel, a receipt of KOT is prepared. The KOT slip is kept in the customer's file and at the time of his check out, his bill is prepared by taking into account this KOT receipt also. In KOT, the time of giving the order and service of the same is not recorded. The bill is prepared at the time of final checking out of the customer. Thus, from the evidence, it emerges that the KOT slips are merely essential to keep a record of the order for meals, placed by the customer, staying in the hotel which was added in the final bill of the customer when the said customer checked-out of the hotel.
60. PW4 has deposed that it was not necessary that all the KOT forms for a day along with the bill were sent to the room of SC: 108/09 State vs. Suresh Menon :27: the customer daily at about 8 PM and it was not a rule that a bill was prepared on daily basis for all the KOT orders for that day which was dispatched to the room of the customer daily. The witness volunteered that it depended upon the demand of the customer. He also deposed that bill for stay of deceased Sarojini on 21.05.05 in the hotel was not prepared. The KOT form of room no.107 was not given to the IO as he did not demand the same. it is apparent that the KOT slips of the orders placed by the deceased on 21.05.05 from her room have not been seized by the IO which is lapse in the investigations, conducted by the IO.
61. In the judgment reported as Karnel Singh vs. State of MP 1995 Crl. LJ 4173, it has been held :-
In cases of defective investigation the Court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect and to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.
In Paras Yadav and Ors. vs. State of Bihar 1999 Cri.LJ 1122 while commenting upon certain omissions of the investigating agency, it was held that it may be that such lapse is committed designedly or because of negligence and hence the prosecution evidence is required to be examined de hors such omissions and contaminated conduct of the officials, otherwise, the mischief which was SC: 108/09 State vs. Suresh Menon :28: deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice.
62. In the case of State of West Bengal vs. Meer Mohd. Umed and Others, JTD 2000 (9) SC 467, the Hon'ble Supreme Court has held :-
" 41.......The function of the Criminal Courts should not be wasted in picking out the lapses in investigation and by expressing unsavoury criticism against investigating officer. If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Effort should be made by Courts to see that criminal justice is salvaged despite such defects in investigation........"
63. Ideally, the IO should have seized the KOT slips but this lapse on his part by no means can be made basis to discard the otherwise reliable and trustworthy evidence of PW4, PW7 & PW16. Argument was also raised that no witness has been examined after the change of duty at 8 PM of PW4, PW7 & PW16 and the deceased was killed at 11 PM while she was sleeping.
SC: 108/09 State vs. Suresh Menon :29:
64. The accused has relied upon judgment Venkatesan vs. State of Tamil Nadu (supra) wherein the Apex Court has observed :-
So far as the last seen aspect is concerned, it is necessary to take note of two decisions of this Court. In State of UP vs. Satish 2005 (3) SCC 114, it was noted as follows :
" 22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case, there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW2.
65. In the judgment Tipparam Prabhakar vs. State of Andhra Pradesh JT 2009 (6) SC 205, the Hon'ble Supreme Court has held :-
Last seen together evidence - Deceased family informed of his death at 11 pm -
SC: 108/09 State vs. Suresh Menon :30: As per PW1, mother, she was told by PW2 that A2 and A3 took the deceased on motorcycle and they returned around 10:30 pm and told her that they would send deceased back in 10 minutes.
66. However, there is not much force in this argument raised on behalf of the accused. The non-examination of the hotel staff who came on duty after 8 PM is not of much importance because PW4, PW7 & PW16 had been on duty till 8 PM and the presence of 400cc semi digested food in the stomach of the deceased also corroborates the prosecution version that she was murdered somewhere around 4.30 PM, the time till the accused was present in her room. According to deposition of PW4, PW7 & PW16, the deceased ate food around 2/2.30 PM which explains the presence of semi digested food in the stomach of deceased, found during the postmortem. Moreover, from the testimony of the witnesses, it also emerges that after the accused left the hotel, the deceased did not order any meal. The evidence also reveals that the deceased had suffered physical violence before she was killed. Thus, she could not have been killed while she was sleeping.
67. It was also argued on behalf of the accused that PW4, PW7 & PW16 have not been able to prove that they were the employees of the hotel as these witnesses have admitted that they were not issued any appointment letter. This argument is also of not much help to the accused because the witnesses have deposed that their names were recorded in the register of the SC: 108/09 State vs. Suresh Menon :31: hotel which is the only proof of their appointment. No suggestion has been given PW1 Deepak Chib who is the proprietor of hotel India Continental that PW4, PW7 & PW16 were not the employees of the hotel. Even otherwise all the three witnesses are reliable and trustworthy witnesses. Merely because they could not produce their appointment letters, their testimony cannot be discarded. Moreover, it has been seen as a general practice that small concerns do not issue appointment letters to its employees.
(v).Recovery of key of hotel room no.107 of Hotel India Continental from the possession of the accused.
68. PW1 Deepak Chib has deposed that on 22.05.05 at about 8.15 in the morning, he was called on telephone by the Manager of the hotel that one lady, staying in room no.107 of the hotel is not opening the door of the room and no response was coming from inside the room. He immediately went there and knocked at the door but did not find any response from inside. He and his Manager Virender informed the police which reached there within half an hour. The police opened the door of the room with a duplicate key. PW4 Virender Singh, PW12 Constable Lakhbir and PW14 SI Pradeep Kumar have corroborated the said deposition.
69. PW2 Pawan Chopra deposed that the accused produced one key along with key ring of the Hotel India Continental with an imprint of the hotel from under the pillow in room no.209 of his SC: 108/09 State vs. Suresh Menon :32: hotel namely Sita International Hotel. The key was seized vide seizure memo Ex.PW2/A and sealed with the seal of 'BL'. He identified the key produced in the Court as Ex.P-3. The witness deposed in the cross-examination that the police had prepared some documents in room no.209 and some at the reception of the hotel and he had signed on all the documents. He also deposed that few phone numbers were written on the key but he could not recall those numbers. Although the witness testified that on the key, No.107 was inscribed on it but later on in re-examination stated that he did not remember if the No.107 was inscribed on the key or not.
70. PW4 has deposed that on 25.05.05, he had again joined the investigations of the case with the IO and went to Hotel Sita, Multani Dhanda, Pahar Ganj where he identified the accused who led the police party to room no.209. The accused got recovered one key and key ring having the name of Hotel India Continental which was of their hotel room no.107. The key and the key ring were sealed with the seal of 'BL' and seized vide seizure memo Ex.PW2/A. This witness also correctly identified the key as Ex.P-
3. However, in the cross-examination, he deposed that he had stayed at the reception at the ground floor of the guest house and the police had gone to the room. He admitted that he did not know that what was handed over to the police by the accused in the room and in his presence at the reception counter, the accused did not hand over any item to the police. He also deposed that from Sita Guest House, he had gone to police station where some SC: 108/09 State vs. Suresh Menon :33: documents of key and other things were prepared which were signed by him and the items collected from the accused after his arrest were kept by the police but were not sealed in his presence.
71. PW18 HC Balbir Singh has deposed that on 25.05.05, he had joined the investigations of the case with IO and at about 2/2.30 PM, he along with Inspector Banwari Lal went to Hotel India Continental. Virender, the Manager of the hotel had joined them and they went to Hotel Sita. Pawan Chopra, Manager of Hotel Sita was also with them. From room no.209, accused produced one key of Hotel India Continental which was having a plate on which the number of Hotel India Continental and room no.107 was mentioned. The key was sealed with the seal of 'BL' and was taken into possession vide memo Ex.PW2/A. The witness correctly identified the key as Ex.P-3 and he also admitted that No.107 was engraved on the plate of the key. In cross-examination, the witness deposed that accused had himself produced the key from the room from the side of bed. The key had a yellow colour plate which was rectangular in size and there was only one key in that ring.
72. PW21 has corroborated the testimony of the other witnesses to the fact that on 25.05.05, he along with PW4 and PW18 had gone to Hotel Sita qua the investigations of this case. PW2 was present there and the accused had led them to room no.209. He also deposed that the accused took out the key of SC: 108/09 State vs. Suresh Menon :34: room no.107 Hotel India Continental from under the pillow on the bed which had one brass like plate, on one side of which map of India was engraved and on the other side, the name of Hotel India Continental was written. On the key number 408 was engraved. He seized the said key along with the key ring and plate vide memo Ex.PW2/A and sealed it with the seal of 'BL'.
73. From the seizure memo of the key Ex.PW2/A, it is revealed that on the key, the number 408 and No.2 was engraved and on the other side, Alka was written. The said key was in a key chain having one brass plate, on the one side of which there was map of India and on the other side, Hotel India Continental with address and three phone numbers was mentioned.
74. On behalf of the accused, it was vehemently argued that the seizure of the key cannot be relied upon as the IO did not adhere to Section 100 Cr.P.C while conducting the search of his room. He did not join any independent and respectable witness of the locality at the time of recovery. The two witnesses i.e PW4 & PW2 of the prosecution are interested witnesses. Thus, their testimony cannot be relied upon to prove any recovery. Moreover, from the testimony of the above mentioned witnesses, it cannot be ascertained that the alleged recovery of the key was made at the instance of the accused and it was of room no.107 of Hotel India Continental. On the key, the number 107 was not inscribed. The testimony of these witnesses is also contradictory.
SC: 108/09 State vs. Suresh Menon :35:
75. It was urged that PW4 has testified that he was not present in the room at the time of recoveries and the seizure memos of the seized articles were prepared in the police station. Whereas PW2 & PW21 have testified that the accused got recovered the key from underneath the pillow on the bed in room no.209. PW18 has deposed that the same was recovered from the bed side. From the testimony of IO, it emerges that he did not make any effort to use the key to check whether with the same, room no.107 can be opened or not. Therefore, the recovery of the key at the instance of the accused and that it was the key of room no.107 of Hotel India Continental has not been proved by the prosecution.
76. From the seizure memo Ex.PW2/A, it is revealed that on the key, the make and number of the manufacturer of the key has been engraved and room no.107 is not engraved. PW21 has admitted in the cross-examination that he never made any effort during investigation to open the lock of hotel room no.107 with the key, seized by him to ascertain whether the key belonged to hotel room no.107. Also, he did not compare the seized key with the duplicate key with which the hotel room no.107 was opened by the police.
77. The arguments raised on behalf of of the accused do not impress upon. Even if room no.107 is not mentioned on the key or that the IO did not make an effort to open the room with the key Ex.P-3 does not demolish the recovery of the key from the SC: 108/09 State vs. Suresh Menon :36: possession of the accused. Admittedly, the key recovered from the possession of the accused is that of hotel India Continental. He has not been able to give any explanation that while he was staying in Hotel Sita how he came into possession of key of Hotel India Continental where the deceased was staying. Whereas PW2 Pawan Chopra, the Manager of Hotel Sita has testified that the key Ex.P-3 was got recovered in his presence by the accused. This part of the testimony of PW2 cannot be ignored. On the other hand, PW4 Virender has deposed that the recovered key was of their hotel. Usually it has been seen that in the hotels/ guest houses, the key is handed over to customer from the board where keys of all rooms according to their number are hanged. Thus, PW4 being a Manager of the hotel used to hand over the key of the allotted room to the customer of his hotel, could say with certainty that a particular key was of which room. Thus, testimony of PW4 cannot be disbelieved that Ex.P-3 is the key of hotel room no.107.
78. Argument was also addressed that the duplicate key with which the IO has allegedly opened the door of room no.107 was not seized by him. The same again is not fatal to the prosecution case since the door of room no.107 was opened with the help of the key and it was not broke open which shows that the door was not bolted from inside. In case, the room would have been locked from inside with the help of a key, then the key should have been recovered from inside room no.107 which is not so in the present case. This clearly establishes that the room no.107 was locked SC: 108/09 State vs. Suresh Menon :37: from outside with the key. It emerges from the testimony of prosecution witnesses that as the original key was not available, the room was got opened with the help of duplicate key. Further more, a key of hotel India Continental has been recovered from the possession of the accused which has been identified by PW4 to be of room no.107. PW2, PW18 & PW21 have proved the recovery of key Ex.P-3 at the instance of the accused and the accused has failed to explain this recovery. The contradictions pointed out by the defence appearing in the testimony of PW2 & PW18 regarding recovery are minor and natural. Thus, the recovery of key Ex.P-3 from the accused connects the case of the prosecution that the accused had locked the room no.107 from outside and had taken the key with him.
(vi).Recovery of clothes of the accused, stated to be worn by him at the time of murder.
79. PW2 has deposed that the accused had produced one shirt and pant from his room which were seized by the police vide memo Ex.PW2/B and these were sealed in a pulanda with the seal of 'BL'. The witness correctly identified the pant as Ex.P-1 and shirt as Ex.P-2. In the cross-examination, he deposed that the colour of the shirt was yellow with cross lines. It was yellow mixed with crème colour and it was a full sleeve shirt. He also deposed that he did not see the clothes very minutely but they were taken out by the accused from the cupboard of the room which was to the left side on entering the room. These clothes were not hanged on the hangers but were kept on the floor inside the cupboard. No SC: 108/09 State vs. Suresh Menon :38: suggestion has been given to the witness that the pant & shirt recovered from room no.209 were not of the accused.
80. PW4 Virender who had also joined the investigations on 25.05.05 has also deposed that the accused had produced one pant and shirt and stated that he was wearing these clothes on the day of the incident which were sealed in a parcel with the seal of 'BL' and were taken into possession vide memo Ex.PW2/B. This witness also correctly identified the clothes when produced in the Court. The testimony of this witness has been mainly challenged on the ground that PW4 did not go to room no.209 but he remained on the ground floor at the reception. Therefore, his testimony cannot be believed to prove the recovery of the shirt & pant by the accused from room no.209.
81. PW18 is also a witness to the recovery of pant and shirt made by the accused from his room no.209 in Hotel Sita and seized vide memo Ex.PW21/B. He also has correctly identified the clothes when these were produced in the Court. In the cross- examination, the witness has stated that he did not remember the colour of the shirt but the pant was of black colour. The shirt was having the tag of Indica Volvin on the back side of the collar, which was also there on the pant. The witnesses deposed that these were used clothes and he did not notice anything peculiar about the clothes. The accused had produced these clothes kept on the bed which were lying on top of the bed and after lifting the same from there, he handed these over to the IO. However, no SC: 108/09 State vs. Suresh Menon :39: suggestion is put to this witness also that the pant & shirt did not belong to the accused.
82. PW21 has also proved the recovery of these clothes from the accused. He deposed that according to accused, he was wearing these clothes when he went to Hotel India Continental. There were some stains on the pant which was of black colour and blood was also found on the shirt. He had sealed and seized these clothes. PW4 during cross-examination has deposed that on 21.05.05, at the time of check-in the hotel, the deceased Sarojini was wearing yellow saree and the accused was wearing black pant and yellow shirt with prominent strips. No suggestion has been given to this witness about the said clothes and their description worn by the accused on the said day.
83. The pant and shirt which are Ex.P-1 & P-2 were sent to CFSL, Rohini. The shirt has been exhibited as 7a, having light brown stains and pant as 7b having darker stains. Human blood of AB group has been detected on both pant and shirt.
84. On behalf of the accused, it was argued that there are contradictions in the testimony of the prosecution witnesses regarding the recovery, seizure and sealing of the case property. The said pant and shirt were never seized and sealed in the presence of PW4. PW18 has stated that these were handed over by the accused to the IO as these were lying on the bed, whereas SC: 108/09 State vs. Suresh Menon :40: PW2 & PW21 have deposed that they were taken out from the cupboard by the accused. Moreover, the prosecution has also failed to prove that on the said pant and shirt, there was blood of the deceased as by merely stating the blood group and without disclosing about the RH factor that whether it was positive or negative or about the barr body whether male or female, it cannot be ascertained that on these clothes, blood of the deceased was found. Thus, the report of the FSL does not connect the accused with the recovery of blood stained pant & shirt Ex.P-1 & Ex.P-2.
85. From the testimony of PW4, it is evident that on 21.05.05 when the accused accompanied the deceased, he was wearing the pant and shirt Ex.P-1 & P-2 which he had got recovered from his room. The fact that the same was got recovered as lying on the bed or from the cupboard is a very minor contradiction which is bound to appear in the testimony of the witnesses when they are examined after a lapse of time. However, this rather shows that the witnesses are truthful and are not deposing in a parrot like manner. On the contrary, the recovery witnesses have not been cross-examined to the effect that the recovered clothes did not belong to the accused. It is also true that the RH factor and barr body qua blood of deceased has not mentioned in the FSL report but from the report, it is evident that the blood group of the deceased was AB and accused has nowhere taken the defence that his blood group is also AB. Ex.PW2/B is the seizure memo which reveals that one gents pant black colour bearing label Indigo Nation and one shirt crème colour with light yellow strips, SC: 108/09 State vs. Suresh Menon :41: having label of Indigo Nation were got recovered by the accused from room no.209 of Hotel Sita which were seized by the IO. On the pant and shirt, there were blood like stains. As per FSL report, human blood of AB group has been detected on the shirt 7a and pant 7b. Accordingly, the recovery of pant & shirt of accused having blood stains of blood of deceased sufficiently stands proved.
86. The accused has relied upon the judgment reported as State of Maharashtra vs. Mangilal III (2009) SLT 201, to impress upon the argument that mere recovery of blood stained clothes is insufficient to hold conviction of the accused. The Hon'ble Supreme Court has held :-
Prosecution failed to establish complete chain of circumstances which rules out possibility of involvement of any other person and unerringly points fingers at accused to be author of crime - Merely because blood stains were found on jersey of accused from septic tank in house of accused and burnt pant, that is inconsequential since his blood group is 'B'.
87. The accused has also relied upon the judgment reported as Buta Singh vs. Emperor AIR 1939 Lahore 194 wherein the Hon'ble Supreme Court has held :
SC: 108/09 State vs. Suresh Menon :42: Code 1860, S. 302 - Mere recovery of blood stained sua and shirt from accused who concealed himself to avoid arrest, without evidence of use of sua by him or as to extent of stains on shirt, is not sufficient to warrant conviction
88. The accused has further relied upon the judgment reported as Sattatiya @ Satish Rajanna Kartalla vs. State of Maharashtra (2008) 3 SCC 210 wherein the Hon'ble Supreme Court has held :
Bloodstains on the alleged clothes and weapon used , found to be of human blood However, said stains could not be linked with blood of deceased - Effect - Held, the same was a serioud lacuna in the prosecution story and High Court and trial court erred in convicting accused despite the same.
However, the above mentioned judgments are distinguishable from the facts of the present case as the recovery of blood stained clothes of the accused from his possession having blood of deceased has been proved by the prosecution. Moreover, beside the factum of this recovery, prosecution has established the other circumstances of the case against the accused.
SC: 108/09 State vs. Suresh Menon :43:
(vii).Motive
89. According to the prosecution case, the motive of the accused to kill the deceased was that he had met the deceased in a Cyber Cafe on 17.05.05. He also met with her 2-3 times in Connaught Place and they both became good friends. During this period, he disclosed to her that he wanted to go to Germany and she told him that she had good connections in Ministry and with politicians. He met her on 20.05.05 at Eastern Court where she introduced him with a person and the accused gave Rs.30,000/- to them for going abroad. Later on he was told that he will have to arrange Rs.50,000/- on which the accused refused to go abroad and asked for return of his money. The person told the accused to meet the deceased Sarojini on 21.05.05 in hotel India Continental and to take back the money.
90. It was argued on behalf of the accused that in the cases, based on circumstantial evidence, the motive plays an important role, but in this case, the prosecution has failed to prove the motive alleged by it as it has not been able to show that the accused had handed over Rs.30,000/- to the deceased or her accomplice. Thus, the prosecution has failed to assign any reason for which the accused could have murdered the deceased and the disclosure statement relied upon by the prosecution Ex.PW18/A is not admissible in evidence to prove the motive. It was further argued that the accused himself is highly educated and has traveled quite often. He is Consulting Surgeon and Medical SC: 108/09 State vs. Suresh Menon :44: Administrator, born in Iran and has traveled to various countries. Thus, he did not require the assistance and services of a tout / agent that too of a semi-literate lady who lived in rural area of Andhra Pradesh to obtain a visa for going to Germany.
91. Admittedly, the prosecution has not produced any evidence to show that the accused had handed over Rs.30,000/- to the deceased to procure a visa for Germany. The prosecution is merely relying upon the disclosure statement made by the accused which in the absence of any recovery made in pursuance thereto is not admissible in law. Thus, the prosecution has failed to prove the motive alleged by it.
(viii).TIP refusal by the accused.
92. PW19 Sh. Gurdeep Singh Saini, Learned ASJ had conducted the TIP proceedings of the accused and has proved the said proceedings as Ex.PW19/B. PW19 has deposed that on 13.06.05, the accused was produced before him and identified by Assistant Jail Superintendent and the accused was asked whether he is willing to join TIP proceedings but he refused. He was warned about the adverse inference and thereafter the refusal of the accused was recorded. The testimony of the witness is unchallenged.
93. On behalf of the accused, reliance has been placed upon the judgment reported as Venkatesan vs. State of Tamil Nadu SC: 108/09 State vs. Suresh Menon :45: 2008 Cri. LJ 3052, in support of the argument that the identity has not been established by the prosecution. The Hon'ble Supreme Court has held :-
Neither knowing names of accused nor giving any identification mark or explaining how they could identify.
94. In the TIP proceedings Ex.PW19/B, the accused has been warned that his refusal to join TIP may attract adverse inference. However, he persisted in not joining TIP. The accused had stated that he did not want to join TIP as police had shown him to many people in the police station where he was kept for more than 48 hours and they had also taken his album, containing his photographs. However, during trial, the accused has nowhere taken the defence that his album, containing his photographs was taken by the police nor he had made any complaint about it in the Court. Further more, he has also not put to the IO that he was kept in the police station for more than 48 hours. On the other hand, the portrait of the accused was already got prepared with the help of PW4 Virender before his arrest. Thus, the IO had no reason to show the photographs of the accused to the witnesses to ascertain about his identity. Therefore, due to the refusal of accused to join TIP, adverse inference is to be drawn against him.
(ix).Recovery of certificates/ documents of the accused from the bag recovered from hotel room no.107.
SC: 108/09 State vs. Suresh Menon :46:
95. PW4 Virender Singh has deposed that on 21.05.05, after the dead body of Sarojini was recovered from inside the room no.107 of their hotel, besides seizing other articles, the police had also seized one bag, containing personal belongings of the deceased and one hand bag containing some documents and two books of the accused. Both these bags were sealed separately in two parcels and were sealed with the seal of 'BL' which were taken into possession vide seizure memo Ex.PW4/H. The witness has not been cross-examined on this aspect. PW14 SI Pradeep Kumar and PW21 have corroborated this part of the testimony.
96. It was contended on behalf of the accused that the recovery of the said bag cannot be relied upon as PW14 could not state about the contents of the bag. Moreover, PW21, IO did not prepare the inventory of the hand bag Ex.PX-2 so as to know what this hand bag had contained when it was seized by the IO. It was argued that testimony of PW8 that he had released the certificates of the accused from the said bag can also not be relied upon as the entries in register no.19 Ex.PW8/A have been manipulated by the police. After recording the entry dated 13.09.05, PW8 has subsequently made endorsement dated 10.09.05, showing that the documents from the bag were released to the accused. During the course of arguments, it was also contended that the accused was lifted by the police on 24.05.05 and his arrest was shown on 25.05.05. At that time, he was carrying his own bag with his articles which were not returned to SC: 108/09 State vs. Suresh Menon :47: him by the IO. However, this fact has not been put to IO to seek his explanation about it.
97. As per seizure memo Ex.PW4/H two bags i.e one bag orange & grey colour, containing articles of the deceased and another hand bag, brown colour, rexin type, containing two English books, file cover and documents have been seized separately and sealed with the seal of 'BL' but all the contents of the hand bag have not been mentioned in the seizure memo. During evidence, PW14 could not depose about the ownership of the recovered books and files. He did not prepare any inventory of the books and files. He has admitted that he was not aware about the contents of the file cover and books.
98. PW21 has deposed that from room no.107 of hotel India Continental, two bags i.e one bag, containing belongings of deceased Sarojini Ex.P-1 and one hand bag, containing belongings of the accused, two books and file were recovered which is collectively Ex.PX-2. The doctrate degree of the accused was found inside the hand bag. It was vehemently argued on behalf of the accused that PW21, the IO has contradicted himself as he has deposed that he did not mention about any documents, articles or certificates recovered from the said room belonging to the accused. During investigations, it was not found that if any documents/ material/ certificates belonging to the accused were recovered from room no.107 of hotel India Continental. However, the said part of the testimony of PW21 which has been recorded SC: 108/09 State vs. Suresh Menon :48: on a subsequent date is not in contradiction to his previous testimony. In the previous testimony, the witness has stated about the contents of the hand bag which belonged to the accused. Whereas subsequently, he has not been questioned on the contents of the bag but has been generally asked about the articles, if any of the accused were recovered from inside the room which he has correctly denied that no such article was recovered from room no.107.
99. HC A.K. Krishnan who has been examined PW5 has deposed that on 22.05.05, he had taken 13 photographs of room no.107 of hotel India Continental from different angles and he has proved the photographs collectively as Ex.PW5/A. One grey, orange colour bag containing some clothes and another brown colour bag, kept on a chair inside the room can be seen in one of the photographs. The accused had moved an application Ex.PA-1 dated 05.08.05 before the Learned ACMM, before committal of the case, seeking directions for the IO to return his original MBBS, MH & High School certificates which are in the custody of the IO so that he can submit the same to IGNOU to seek admission for a PG Programe. Vide order dated 10.09.05, it has been observed by Learned ACMM that a bag, having seal of 'BL' has been brought from Malkhana from which original certificates, required for the purpose of pursuing Masters, nine in number were returned to the accused. Rest articles were sealed with seal of 'court' and were sent back to Malkhana. Mark Y is the receipt vide which the accused had obtained nine documents, pertaining to SC: 108/09 State vs. Suresh Menon :49: degrees and other certificates in original in plastic folder on 10.09.05 in the Court.
100. PW8 has deposed that as per entry no.1855, 1857 & 1865 dated 10.09.05, in register no.19 dated 10.09.05, the documents were handed over to the accused which he has proved as Ex.PW8/X. Vide endorsement on Ex.PW8/X, MHCM had mentioned that on 10.09.05 by the order of Learned ACMM, the sealed bag bearing seal of 'BL' of the case was produced in the Court which was opened and nine papers, pertaining to MBBS degree of the accused were handed over to him. The bag was then sealed with the seal of 'MJ'. Admittedly, the said entry has been made after the entry dated 13.09.05. However, the same is not of much relevance as it has been categorically proved that the hand bag Ex.PX-2 had contained the education certificates of the accused which he himself got released from the Court on 10.09.05 in pursuance to application Ex.PA-1, moved by him. PW16 has deposed that the deceased was carrying one bag with her.
101. While recording the statement of the accused under Section 313 Cr.P.C, it was put to the accused that from room no.107 of hotel India Continental, one traveling bag, clothes and personal belongings of the deceased and one rexin hand bag, containing two book, file cover and other documents was lying which was sealed in two separate parcels along with the belongings of each bag and was seized vide seizure memo SC: 108/09 State vs. Suresh Menon :50: Ex.PW4/H. The accused has denied that from the room, one hand bag made of rexin was recovered in which two books, file cover and other documents were lying. From this answer, the presence of the accused inside room no.107 can be ascertained. In case, the accused was not present in the room then how could he say that the rexin bag, containing books and other articles was not recovered from the said room. Further more, it was also put to the accused that on 05.08.05 while in JC, he had moved an application for return of his original documents, stating to be in the custody of the IO and the said application was fixed for disposal on 11.08.05. The accused did not reply the said question and stated that it is not an evidence and it cannot be used against him. In reply to the question that as per Malkhana register, endorsement Ex.PW8/X, the documents were handed over to him on 10.09.05, the accused has stated that the documents were never handed over to him. This answer of the accused is contrary to the Court order dated 10.09.05 according to which, nine documents in original were handed over to the accused in the Court. Thus, it is apparent that the accused has deliberately concealed the answer to this question. But the prosecution has been able to prove that the hand bag recovered from the room no.107 of hotel India Continental was of the accused which had contained his education certificates and degrees which he himself got released from the Court.
102. On behalf of the accused, to stress upon the argument that even if some recoveries are made at the instance of the SC: 108/09 State vs. Suresh Menon :51: accused or his articles are recovered from the scene of the crime are not sufficient to hold the conviction of the accused, reliance has been placed upon judgment reported as Kegan Bera & Anr. vs. State of West Bengal AIR 1994 SC 1511, wherein the Hon'ble Supreme Court has observed :-
Mere recoveries of articles, cannot link accused with crime.
103. Reliance has been placed upon the judgment reported as Rambilas & Ors. vs. State of M.P. 1997 SCC (Cri.) 1222, wherein the Apex Court has held :-
Evidence Act, 1872 - S.27 - Mere recovery of certain incriminating articles at the instance of the accused cannot form the basis of conviction.
104. In the judgment Tipparam Prabhakar vs. State of Andhra Pradesh JT 2009 (6) SC 205, the Hon'ble Supreme Court has held :-
Merely because appellant's identity card was found near the dead body he could not be held guilty.
105. The accused has also relied upon the judgment Abdulwahab Abdulmajid Baloch vs. State of Gujarat JT 2009 (5) SC 58. However, the cited judgments on behalf of the accused SC: 108/09 State vs. Suresh Menon :52: are also distinguishable from the facts of the present case because besides, recovery of bag with documents of the accused from hotel room no.107, the prosecution has also established other circumstances against the accused.
106. The contentions raised on behalf of the accused that since the inquest proceedings were not conducted according to Punjab Police Rules and investigations were not done scientifically, so the investigations are tainted, recoveries are planted which cannot be replied upon. The said contention does not find any merit. In the judgment reported as Podda Narayana and Ors. vs. State of Andhra Pradesh AIR 1975 SC 1252, the Hon'ble Supreme Court has held :-
The proceedings under Section 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death.
The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under Section 174. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report.
107. It was also argued that even the postmortem has not been conducted according to the practices of Medical SC: 108/09 State vs. Suresh Menon :53: Jurisprudence since when two persons or objects come into contact, they leave evidence of transference of material from each other in the form of finger print, fiber, dust, hair, avulsed etc. It is true that the postmortem and the investigations should be conducted according to the laid rules. Even if, PW9 failed to collect any nail clips of the deceased to find out if there was any tissue or blood under the nails of the accused is immaterial since the said evidence would have proved that accused used physical violence on the deceased. However, in the present case, there is otherwise overwhelming evidence on record to show the presence of the accused with the deceased on the fateful day in room no.107 of Hotel India Continental and he subjected the deceased to physical violence.
108. An argument was also raised that as per mobile phone call details on 21.05.05, a call is alleged to have been made on the mobile of the accused at 7.44 AM. Thus, this fact is in contradiction to the case of the prosecution according to which the accused and the deceased were seen together since 7 AM in the hotel lobby. If the prosecution witnesses are to be believed and accused was with the deceased then where was the need for deceased to telephone the accused at 7.44 AM. This argument is of not much relevance because the prosecution witnesses are mainly deposing that they had seen the accused and deceased together in the hotel lobby waiting for allotment of a room which was allotted at 9/9.15 AM. It is natural that a human being cannot remember minute by minute detail of an incidence. A mere SC: 108/09 State vs. Suresh Menon :54: difference of half an hour this side or that side does not demolish the otherwise cogent testimony of PW4, PW7 & PW16. They had seen the accused and the deceased together in the lobby of the hotel waiting before the deceased was allotted room no.107 at around 9/9.15 AM. It has also come in evidence that Hotel Sita and Hotel India Continental are in close vicinity. PW4 has deposed that it hardly takes 2-3 minutes to reach from Hotel Sita to Hotel India Continental. Thus, even if it is assumed that the deceased had called the accused at 7.44 AM, on his mobile phone, within minutes, the accused could have reached hotel India Continental from his hotel and then they were seen together in the hotel lobby by the prosecution witnesses.
109. It was argued on behalf of the accused that Shankar, the other Manager of the hotel India Continental and the other Waiters namely Mahesh, Dharmendra, Vishwanath and Sikander have not been examined by the prosecution which creates a doubt on the prosecution version. The said argument is misconceived. It is true that the witnesses which are essential to unfold the prosecution case must be called by the prosecution where their testimony is for or against the prosecution. However, that does not mean that everyone who has witnessed the occurrence and whatever their number be, must be examined as a witness. A similar contention has been repelled by the Hon'ble Supreme Court in the judgment Vadivelu Thevar vs. State of Madras 1957 Cri.LJ 1000 :
..... The contention that in a murder case, the Court should insist upon plurality of witnesses, is much too broadly stated.
SC: 108/09 State vs. Suresh Menon :55: The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in Section 134, which by laying down that "no particular number of witnesses shall, in any case, be required for the proof of any fact" has enshrined the well recognized maxim that " Evidence has to be weighed and not counted." It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished.
The above quoted principle was laid reiterated in Ramratan & Ors. vs. State of Rajasthan 1962 3 SCR 590.
110. The prosecution has examined PW4, the Manager of Hotel India Continental and two Waiters who were on duty in the hotel on 21.05.05 from 8 AM to 8 PM to prove the last seen evidence. Thus their testimony is very material. These are cogent and reliable witnesses and had seen the accused and deceased together in the morning of 21.05.05 in the hotel lobby and in room no.107. No order of any meal/ eatable was received from room no.107 after 2 PM and deceased was not seen going out of the room. Neither any one came to room no.107 after 4.30 PM, when the accused left from there. Moreover, the postmortem report SC: 108/09 State vs. Suresh Menon :56: regarding presence of 400cc semi digested food in the stomach of the deceased further corroborates the testimonies of these witnesses. The prosecution has been able to prove that accused remained with the deceased in hotel room no.107 from 9/9.15 AM to 4.30 PM, till the deceased was alive. By examining more witnesses would not have made any difference to the prosecution case.
111. It was also argued that according to testimony of PW2, in Hotel Sita, police had come with a boy for investigating the case. Whereas PW4 is around 54 years and he had accompanied the police to Hotel Sita and by no imagination, a man of 54 years can be called a boy. This is a minor discrepancy or can even be a typographical error as instead of writing 'man', word 'boy' has been mentioned which does not effect the prosecution case at all because prosecution has established that PW4 had joined the investigations on 25.05.05 and he went with the police to Hotel Sita.
112. In A. Yadhav vs. State of Karnatka (supra), the Hon'ble Supreme Court while relying upon the circumstances of last seen offence and recovery of ornaments, belonging to the deceased from the possession of one of the accused persons, upheld the conviction of the accused.
113. The judgments reported as Roop Singh @ Rupa vs. State of Punjab 2008 Crl. LJ 3184, Vinay D. Nagar vs. State of SC: 108/09 State vs. Suresh Menon :57: Rajasthan 2009 (2) JCC 1185, Shantabai & Ors. vs. State of Maharashtra 2008 (2) JCC 1080 and B. Venkatswamy vs. Vijaya Nehru & Anr. (2008) 10 SCC 260 also lay down the guidelines for appreciating the law on circumstantial evidence.
114. From the entire evidence led by the prosecution, it has been cogently proved that all the circumstances put forth by the prosecution have been proved beyond reasonable doubt and the same have formed a complete chain pointing towards the accused. Even if the prosecution has failed to prove the motive or the call details, same is not fatal to the prosecution case.
115. At this stage, a crucial question is required to be considered that whether the present case falls within the purview of Section 299 or Section 300 IPC. In the judgment reported as Pappu @ Hari Om vs. State of Madhya Pradesh JT 2009 (5) SC 7, the Hon'ble Supreme Court has observed :-
In the scheme of the IPC culpable homicide is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but no vice-cersa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder is culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the gravest form of SC: 108/09 State vs. Suresh Menon :58: culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide' of the second degree. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.
It was further observed that the academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions.
Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. the distinguishing feature of the mens rea requisite under Clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the 'intention to cause death' is not an essential requirement of Clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the SC: 108/09 State vs. Suresh Menon :59: killing within the ambit of this clause. The aspect of Clause (2) is borne out by illustration (b) appended to Section 300.
116. In the judgment reported as Ramesh Kumar vs. State of Bihar & Ors. AIR 1993 SC 2317, the Apex Court has held :-
Accused not using weapons in their possession on lonesome deceased - Circumstances show intention to assault severely and not intention to cause injury sufficient in ordinary course to cause death - Alteration of conviction from S.300 to S.304 Part II, IPC proper.
117. PW16 has deposed that around 4 PM, when he heard the voice of a male and a female from inside the room no.107, he had seen the accused sitting and they were talking normally. There is no evidence of previous rivalry or enmity between the deceased and the accused. It emerges from the testimony of the witnesses that while accused and the deceased had stayed together in the room no.107 from morning till evening, no voices of any altercation or heated argument were heard. In normal course, the deceased and the accused had ordered for lassi as well as for lunch which shows that everything was peaceful between them. However, suddenly something unhappy cropped up between them which led to violence and struggle made by the deceased. The evidence of the physical violence on the deceased and struggle made by her is evident from the testimony of the prosecution SC: 108/09 State vs. Suresh Menon :60: witnesses as well as the photographs filed on record. The photographs Ex.PW5/A shows that the hair of the deceased were ruffled. PW1, PW4 & PW14 have deposed that her broken bangles were lying on the bed as well as on the floor. There was blood on the bed and the pillow. One hair clip of the deceased was lying there and the deceased had suffered four injuries on her face.
118. According to postmortem report Ex.PW9/B, the said four injuries are :-
(i).Contusion 3 x 2 cm reddish in colour present over left cheek, 1 cm outer to left angle of mouth.
(ii).Contusion 3 x 1.8 cm reddish in colour present over right cheek, 1 cm outer to right angle of mouth.
(iii).Contused lacerated wound 1 x.3 cm x .2 cm present over inner side of upper lip.
(iv).Contusion 4 x 3 cm reddish in colour present over right side of upper forehead.
119. The cause of the death is opined as Asphyxia consequent upon smothering via injury no.1, 2 & 3. The postmortem report further reveals that blood tinged fluid was present in both nostrils, face was congested and tongue was clinched between the teeth. No fracture of hyloid bone or hyloid SC: 108/09 State vs. Suresh Menon :61: cartilage was present. Thus, it rules out that the deceased was strangulated or had any ligature mark due to the pallu of her saree found around her neck. The smothering is shown to be caused due to three injuries caused on the face of the deceased.
120. In the judgment reported as Subramaniam vs. State of Tamil Nadu & Anr. IV (2009) SLT 384, cited on behalf of the accused, the Hon'ble Supreme Court has laid down the guidelines to appreciate the postmortem reports in case of smothering and death by Asphyxia.
121. The fact that the accused went unarmed to the room of the deceased and had sat with her peacefully in her room for such long hours clearly show that he had no intention to kill her but wanted to severely assault her. At spur of the moment, something happened between the two and the accused subjected the deceased to physical violence and that too on her face, resulting in four injuries on her face. Thus, the circumstances proved by the prosecution show that the case does not fall within the ambit of any of the four clauses of Section 300 IPC. However, by causing the injuries on the face of the deceased which is a delicate part, the accused is attributed with the knowledge that by causing such injuries, these were likely to cause death of the deceased. Being a doctor such knowledge can be attributed to the accused. Thus, the prosecution has been able to prove its case under Clause 3 of SC: 108/09 State vs. Suresh Menon :62: Section 299 IPC, punishable under Section 304 Part II IPC. The accused is accordingly held guilty for the offence punishable under Section 304 Part II of IPC.
Announced in the Open Court On 20.11.2009.
(Shalinder Kaur) Additional Sessions Judge-FTC (Central) Tis Hazari Courts: Delhi.
SC: 108/09 State vs. Suresh Menon :63: State Vs. Suresh Menon FIR No. 183/05 PS : Nabi Karim SC No. : 108/09 20.11.2009.
Present : Sh. Maqsood Ahmed, Learned APP for State.
Accused from JC with proxy counsel Sh. Vipul Kumar for Sh. R.K. Thakur - Counsel for accused.
Vide judgment announced of even date on separate sheets, the accused is held guilty for the offence punishable under Section 304 Part II IPC.
Put up for Order on Sentence on 25.11.09.
(SHALINDER KAUR) Additional Sessions Judge-FTC (Central) Tis Hazari Courts: Delhi.
SC: 108/09 State vs. Suresh Menon :64: In the Court of Ms. Shalinder Kaur Additional Sessions Judge-FTC (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 108/09
State Versus Suresh Menon
S/o Balakrishonan
R/o A-2, Hols Road,
Kilpol (Madras)
Case arising out of
FIR No. : 183/05
Police Station : Nabi Karim
Under Section : 302 IPC
ORDER ON SENTENCE:
1. Heard on the point of sentence.
2. It is contended on behalf of the convict that he has got clean antecedents and he belongs to a very reputed family. He had served the nation as well as people abroad being an Eye Surgeon and he has got a good professional record. He had been also serving the jail inmates while in custody since 26.05.05. It is also submitted that after his 10 years old son had passed away, he had donated all the vital organs of his son. The convict prays that in these circumstances, lenient view be taken and he may be allowed to undergo the period of imprisonment already spent by him since he has been judicial custody.
SC: 108/09 State vs. Suresh Menon :65:
3. In view of the submissions made on behalf of the convict, the antecedents highlighted about him and that he is an Eye Surgeon by profession, moreover, the incident had occurred on spur of moment, I hereby sentence the convict for offence punishable under Section 304 Part II IPC to undergo imprisonment for six years and fine of Rs.2000/-, in default SI for two months. Benefit of Section 428 Cr.P.C be given. Copies be given free of cost to the convict.
Announced in the Open Court On 25.11.2009 (Shalinder Kaur) Additional Sessions Judge-FTC (Central) Tis Hazari Courts: Delhi.
SC: 108/09 State vs. Suresh Menon :66: State Vs. Suresh Menon FIR No. 183/05 PS : Nabi Karim SC No. : 108/09 25.11.2009.
Present : Sh. Maqsood Ahmed, Learned APP for State.
Convict from JC with proxy counsel Sh. Ranjeet Kumar for Sh. R.K. Thakur - Counsel for accused.
Arguments heard on point of sentence.
Vide Order on Sentence announced of even date on separate sheets, the convict is sentenced for offence punishable under Section 304 Part II IPC to undergo imprisonment for six years and fine of Rs.2000/-, in default SI for two months. Benefit of Section 428 Cr.P.C be given. Copies be given free of cost to the convict.
File be consigned to Record Room.
(SHALINDER KAUR) Additional Sessions Judge-FTC (Central) Tis Hazari Courts: Delhi.
SC: 108/09 State vs. Suresh Menon :67: State Vs. Suresh Menon FIR No. 183/05 PS : Nabi Karim SC No. : 108/09 08.12.09 File taken up on the basis of application, received from Dy. Superintendent, Tihar.
Record perused.
Due to typographical mistake, the word 'RI' has not been mentioned for substantive sentence of period of six years imposed on the convict. Accordingly the word 'RI' is added to prefix 'six years' in the Order of Sentence dated 25.11.09, in para 3 and also in the separate order sheet of even date. This order shall form part of the Order of Sentence dated 25.11.09.
Reader to put a note regarding this order on the orders dated 25.11.09. Copy of Order be sent to Superintendent (Jails).
File be consigned to Record Room.
(SHALINDER KAUR) ASJ- FTC (CENTRAL) : DELHI 08.12.09 SC: 108/09 State vs. Suresh Menon