State vs Jai Ram @ Vicky & Anr S.C. No.27/13/// Fir ... on 30 October, 2013

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Delhi District Court

State vs Jai Ram @ Vicky & Anr S.C. No.27/13/// Fir ... on 30 October, 2013

IN THE COURT OF SH. SANJEEV KUMAR ADDITIONAL SESSIONS

JUDGEI(NORTH): ROHINI COURTS: DELHI

SC No.27/13.
FIR NO.180/10.
PS KANJHAWALA.
U/S.302/34 IPC.

STATE

VERSUS

1. JAI RAM @ VICKY S/O. PRATAP SINGH
R/O. F6, RAJDHANI PARK, NEAR HANUMAN MANDIR,
NANGLOI, DELHI.
2. RUBY D/O. CHANDER BHAN
R/O. 81, VILLAGE KANJHAWALA,
DELHI.
ORDER ON SENTENCE

30.10.2013.
Present: Shri A.K. Gupta, ld. Addl. PP for the State.
Convicts Jai Ram @ Vicky and Ruby are in JC.
Shri Joginder Tuli, ld. Counsel for the convict Ruby.
Shri Ajay Mahla, ld. Counsel for convict Jai Ram @ Vicky.

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1. Arguments heard on sentence. The convicts have been

convicted under Section 302/34 IPC for committing murder of vide

judgment dated 16.05.2013.

2. It is argued by Shri Joginder Tuli, ld. Counsel for the

convict Ruby that, convict is aged about 21 years and she has two

younger sister and two younger brothers and except her no elder

family members remained for their bread winning. He further submits

that convict is not previously involved in any crime. Therefore, lenient

view may be taken.

3. It is also argued by ld., counsel for the convict Jai Ram

@ Vicky that he is aged about 21 years has old widow mother. He

further submits that his elder brothers of convict are living separately

and he is not previously involved in any crime.

4. On the other hand, ld. Addl. PP for the State submits

that convict Ruby in connivance with accused Jai Ram @ Vicky have

committed the murder of her mother because she was against their

marriage. Further ld. Addl. PP for the State submits that victim

Ishwanti was murdered brutally by pressing her neck with the rope.

Hence, the act of both the convicts are quite grave and thus they

should be given maximum sentence, as prescribed under the

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statute.

5. I have heard the rival submissions and gone through the

record.

6. The protection of society by stamping out criminal

activity is essential function of State. It can be achieved by imposing

appropriate sentence. The facts and given circumstances in each

case, the nature of the crime, the manner in which it was planned

and committed, the motive for commission of the crime, the conduct

of the convict, the nature of weapons used and all other attending

circumstances are relevant facts for imposing appropriate sentence.

Any definite formula relating to imposition of sentence cannot be laid

down. The object of sentencing is that the offenders does not go

unpunished and the justice be done to the victim of crime and the

society. It is, therefore, the duty of every court to award proper

sentence having regard to the nature of the offence and the manner

in which it was executed or committed etc. The measure punishment

in a given case must depend upon the gravity of the crime; the

conduct of the offender and the defence less and unprotected state

of the victim. Imposition of appropriate punishment is the way

adopted by the courts for responding the society's desire for justice

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against the criminals. Justice demands that courts should impose

punishment fitting to the crime. The Courts must not only keep in

view the rights of the criminal but also the rights of the victim of crime

and the society at large while considering imposition of appropriate

punishment.

It was held in the case of Siddarama & Ors. V State of

Karnataka, (2007) 1 SCC (Cri) 72 :

the object should be to protect the society and to
deter the criminal in achieving the avowed object to
law by imposing appropriate sentence. It is
expected that the courts would operate the
sentencing system so as to impose such sentence
which reflects the conscience of the society and the
sentencing process has to be stern where it should
be. Imposition of sentence without considering its
effect on the social order in many cases may be in
reality a futile exercise. The social impact of the
crime e.g. where it relates to offences relating to
narcotic drugs or psychotropic substances which
have great impact not only on the health fabric but
also on the social order and public interest, cannot
be lost sight of and per se require exemplary
treatment. Any liberal attitude by imposing meagre
sentences or taking too sympathetic view merely on
account of lapse of time or personal inconveniences
in respect of such offences will be result wise
counterproductive in the long run and against

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societal interest which needs to be cared for and
strengthened by a string of deterrence inbuilt in the
sentencing system.

6. Section 302 IPC provides only two sentences i.e. Death

Sentences and imprisonment for life and fine.

7. It is now settled by the Higher Courts that Death penalty

is to be awarded in those cases, which falls within the category of

"rarest of rare cases".

8. In the case Bachan Singh V State of Punjab, AIR

1980 SC 898 it was observed that a real and abiding concern for the

dignity of human life postulates resistance to taking a life through

law's instrumentality. That ought not to be done save in the rarest of

rare cases when the alternative option is unquestionably foreclosed.

9. In case Machhi Singh V State of Punjab, AIR 1983

SC 957, the guidelines are laid down which are to be kept in view,

considering the question whether the case belongs to the rarest of

rare category. It was observed that the following questions may be

asked and answered as a test to determine the 'rarest of the rare'

case in which death sentence can be inflicted:--

a) Is there something uncommon about the
crime which renders sentence of imprisonment for
life inadequate and calls for a death sentence?

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b) Are the circumstances of the crime such
that there is no alternative but to impose death
sentence even after according maximum weightage
to the mitigating circumstances which speak in
favour of the offender?

10. In case Machhi Singh, the guidelines were culled out

which are to be applied to the facts of each individual case where the

question of imposition of death sentence arises. The following

preposition emerges from the Bachan Singh's case:

i. The extreme penalty of death need not be
inflicted except in gravest cases of extreme
culpability.
ii. Before opting for the death penalty the
circumstances of the 'offender' also required to
be taken into consideration along with the
circumstances of the 'crime'.
iii. Life imprisonment is the rule and death sentence
is an exception. Death sentence must be
imposed only when life imprisonment appears to
be an altogether inadequate punishment having
regard to the relevant circumstances of the crime,
and provided, and only provided, the option to
impose sentence of imprisonment for life cannot
be conscientiously exercised having regard to the
nature and circumstances of the crime and all the
relevant circumstances.
iv.A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing

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so the mitigating circumstances have to be
accorded full weightage and a just balance has to
be struck between the aggravating and the
mitigating circumstances before the option is
exercised.

11. In case Bablu @ Mubarak Hussain V State of

Rajasthan, AIR 2007 SC 697, the Supreme Court observed as

under :-

In rarest of rare cases when collective conscience
of the community is so shocked that it will expect
the holders of the judicial power center to inflict
death penalty irrespective of their personal opinion
as regards desirability or otherwise of retaining
death penalty, death sentence can be awarded.
The community may entertain such sentiment in the
following circumstances:
i. When the murder is committed in an extremely
brutal, grotesque, diabolical, revolting or dastardly
manner so as to arouse intense and extreme
indignation of the community.
ii. When the murder is committed for a motive which
evinces total depravity and meanness; e.g
murder by hired assassin for money or reward or
a coldblooded murder for gains of a person vis
avis whom the murderer is in a dominating
position or in a position of trust, or murder is
committed in the course for betrayal of the
motherland.

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iii. When murder of a member of a Scheduled Caste
or minority community etc., is committed not for
personal reasons but in circumstances which
arouse social wrath, or in cases of 'bride burning'
or 'dowry deaths' or when murder is committed in
order to remarry for the sake of extracting dowry
once again or to marry another woman on
account of infatuation.
iv.When the crime is enormous in proportion. For
instance when multiple murders, say of all or
almost all the members of a family or a large
number of persons of a particular caste,
community, or locality, are committed.

12. In this case, convicts have murdered victim Ishwanti,

who was the mother of convict Ruby. Hence, the offence of convicts

are quite grave, however, this fact cannot be ignored that convicts

are young age of just 1819 years at the time of commission of

offence. Thus, even though they were major, but were not so mature

to understand the consequence of their act, as they lost their self

control and did the act because they were of the view, their marriage

will not be solemnized by the victim Ishwanti. Further, there is no

previous case against them, hence, it cannot be said that, there is no

chance that, they could not be reformed.

13. Therefore, taking into account aggravating and

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mitigating circumstances, I am of the view this case does not fall in

the category of "rarest of rare cases" to impose death penalty.

14. Therefore, I sentence both the convicts for Life

Imprisonment for offence punishable under Section 302 IPC and

also fine of Rs.10,000/ each, in default of payment of fine, they shall

further undergo SI for six months.

15. The case property is confiscated to the State. Benefit of

Section 428 Cr.P.C be given to the convict. Committal warrants be

issued against the convict. A copy of the judgment and that of order

on sentence be supplied to the convicts free of cost forthwith. File be

consigned to the record room.

Announced in the open court (SANJEEV KUMAR)
On 30.10.2013 ADDITIONAL SESSION JUDGE:
ROHINI COURTS: DELHI

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IN THE COURT OF SH. SANJEEV KUMAR ADDITIONAL SESSIONS

JUDGEI(NORTH): ROHINI COURTS: DELHI

SC No.27/13.
FIR NO.180/10.
PS KANJHAWALA.
U/S.302/34 IPC.

STATE

VERSUS

1. JAI RAM @ VICKY S/O. PRATAP SINGH
R/O. F6, RAJDHANI PARK, NEAR HANUMAN MANDIR,
NANGLOI, DELHI.
2. RUBY D/O. CHANDER BHAN
R/O. 81, VILLAGE KANJHAWALA,
DELHI.
Date of Institution in this Court:22.02.2011.
Date of Arguments:31.08.2013
Date of Judgment:26.10.2013
JUDGMENT:

1. Brief facts of the prosecution are that on 18.09.2010 a call was received in PCR (HQ) from Phone number 9654546096 that one lady had hanged herself at house number 92, near Shani Mandir, back of State Bank, Kanjhawala. On the basis of said STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 10 OF 77 11 information DD No.13A was recorded by the duty officer of PS - Kanjhawala and on receipt of the said DD Inspector Surender Kumar alongwith HC Rajesh reached at the aforesaid spot. There he found ASI Rajender Singh of PCR alongwith other staff were already there and he found that Almirah in the room was lying opened and some goods were scattered over cot (charpae) and some chilly powder were lying on the cot, some broken bangles were also lying and he found dead body of a woman aged about 40 years was lying in store/puja room having rope tied on her neck and the other portion of rope was tied with one box (sandook) lying in the room, chunni was also tied on her neck. IO called the crime team and crime team photographer took photographs of the spot and dead body. IO seized all these articles and thereafter prepared rukka on the DD itself has no eyewitness was present and accordingly on the basis of said rukka, FIR of the present case was recorded by the DO.

2. Later on IO examined child Ajay son of victim, who stated that he alongwith his sister Shikha and brother 11 year old namely Sagar had gone to school at about 7.30am and at that time her sister Ruby i.e. accused no.2 and victim were at the house and when at about 11am, he came back from school, he saw that the STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 11 OF 77 12 door of the both the rooms were bolted from outside he opened the door and entered into room and found his mother was lying on the floor. He informed to his uncle Suraj Bhan, who made call to the police.

3. IO Inspector Sunder Dahiya also interrogated Suraj Bhan brother in law/devar of the victim Ishwanti and who stated that on the day of incident, when he was going from the street of victim at about 8.30pm, he saw his niece Ruby i.e. accused no.2, with one boy i.e. accused no.1 Jai Ram @ Vicky were gone from there with fast paces. He further stated that his niece Ruby want to marry with Jai Ram @ Vicky, but his sister in law i.e. Bhabhi was against it and at that time the loud sound of TV was coming and later on came to know that his Bhabhi had expired.

4. On the next day he again interrogated Accused No.2 Ruby, and she confessed that she alongwith coaccused Jai Ram @ Vicky had committed the murder of her mother because her mother had illicit relationship with one Balraj and she was also not agreed to her marriage with accused Jai Ram @ Vicky. She was arrested by the IO and phone number 8802923049 was seized by the IO and on the pointing out of the accused Ruby he arrested accused Jai Ram STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 12 OF 77 13 @ Vicky and seized phone number 7503534671. He interrogated him and recorded his confessional statement. He collected the crime team report, PCR Form, PM Report, finger print report and call details of both the mobile phone numbers during investigation and after completion of the investigations, filed chargesheet u/s. 302/34 IPC and both the accused persons were put to trial.

5. After compliance of the provisions of Section 207 Code of Criminal Procedure, Ld. MM committed the case to the Court of Sessions. Thereafter, it was assigned to this court.

6. Vide order dated 06.05.2011 charges under Section 302/34 IPC were framed against both the accused persons, to which they pleaded not guilty and claimed trial.

7. In order to prove its case, prosecution has examined as many as 24 witnesses.

PW1 Karan Singh, PW2 Wakil, PW3 WCT Suman, PW4 Dinesh Singh, PW5 Suraj Bhan, PW6 Ajay, PW7 Ct. Chhote Khan, PW8 Dr. Manoj Dhingra, PW9 Inspector Sanjay Gade, PW10 Dr. Deepak Sharma, PW11 Ct. Sanjay, PW12 Dr. Lingaraj Sahoo, PW13 Naresh Kumar Sharma, PW14 SI Om Prakash, PW15 Assistant Commandant Ravinder, PW16 SI Manohar Lal, PW17 STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 13 OF 77 14 Ct.Sat Narain, PW18 Ct. Rajeev, PW19 HC Vijay Singh, PW20 Shishir Malhotra, PW21 SI Ashok Kumar, PW22 Ct. Bijender, PW23 ASI Rajender Singh, PW24 Inspector Surender Kumar,

8. Statements of both the accused persons were recorded u/s 313 Cr.P.C. have been recorded in which all the incriminating evidence put to them but both the accused persons have denied all the incriminating evidence put to them and claimed their innocence and submitted that they have been falsely implicated in this case. Accused Ruby had stated that her mother knew one Balraj, who used to visit their house and used to quarrel with her mother to grab her mother's property and he has also threatened her Naani by putting gun over her prior to the death of her mother. She further stated that she had told to the IO that her mother had been murdered by the Balraj. She preferred to lead evidence in her defence and examine her sister Ms. Shikha as DW1 and her grand mother (Naani) Smt. Chander Bala as DW2.

On the other hand, accused Jai Ram @ Vicky did not prefer to lead any evidence in his defence.

9. Arguments were heard from Shri A.K. Gupta, Ld. Addl.

Addl. PP for the State and from Shri R.S. Mahla, ld. Counsel for STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 14 OF 77 15 accused Jairam @ Vicky and Shri Joginder Tuli, ld. Counsel for accused Ruby.

10. It is argued by ld. Addl. PP for the State that particularly testimony of PW6 and from the evidence produced by the prosecution, it is proved that both the accused persons had love affairs and they wanted to marry. But victim who was the mother of the accused Ruby was against their marriage, hence, both the accused persons conspired to eliminate her and in pursuance of that conspiracy committed murder of the victim. Ld. Addl. PP for the State submit that complete chain of incriminating circumstances has been proved against the accused persons, therefore, they are liable to be convicted.

11. On the other hand, ld. Counsel for accused Ruby has argued that prosecution has miserably failed to prove any of the incriminating circumstances like relations of both the accused persons, or presence of accused Ruby at the spot. Ld. Counsel further argued that accused Ruby has gone to her sister's school on the day of incident and came back only after receiving information from the police that, her mother has been murdered. Ld. Counsel further argued that IO has deliberately let off real culprit Balraj with STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 15 OF 77 16 whom her mother has illicit relationship and who wanted to grab the properties of her mother and falsely implicated the accused Ruby. He further argued that accused Ruby has no connection with mobile number 8802923149 and same has been planted upon her. In support of his contention ld. Counsel has relied upon following judgments: Pankaj Vs. State (Govt of NCT) Crl. A 505/2011 Delhi High Court, Ashish Batham Vs. State of M.P. 2002 Vol7 SCC 317, Ramreddy Rajesh Khanna Reddy & Anr Vs. State of A.P. 2006 Vol 10 SCC 172, Kamlesh Singh vs State in Crl. Appeal No.533/10.

12. Ld. Counsel for the accused Jai Ram @ Vicky has also argued that accused has no link with coaccused Ruby and he even did not know her. He further argued that mobile phone has been planted upon the accused. He further argued that PW5 Suraj Bhan, who allegedly seen the accused at the spot on the day of incident has not supported the prosecution case and has stated that he had seen him on the day of incident. Similarly, PW2 Wakil has also not identified the accused as the person who purchase the rope from his shop. Hence, prosecution has miserably failed to prove the case against the accused Jairam @ Vicky. Hence, he is entitled to be acquitted. In support of his contention, ld. Counsel has relied upon following judgment: Tinku & Others Vs. State 2012 [1] JCC 730, STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 16 OF 77 17 Suresh Kalmadi Vs. CBI 2012 [1] JCC 734, Bhudev Paul Vs. State 2002 [3] JCC 1830, Dharamvir & Anr Vs. The State 2002 [3] JCC 1834, Rampal vs State 2010 [3] JCC 1713, Deepak Kaul Vs. The State of NCT of Delhi 2010 [2] JCC 863, Shilpa Aggarwal vs. Aviral Mittal & Anr 2010 [2] JCC 871.

13. I have considered the rival arguments and gone through the record as well as judgments relied upon by ld. Counsels for the accused persons carefully. There is no eyewitness of the incident and entire case of the prosecution is based upon the circumstantial evidence. In order to prove the case prosecution examine 24 witnesses.

14. PW1 Karan Singh is not a material witness and only identified dead body of victim Ishwanti which is an undisputed fact.

15. PW2 Wakil was a material witness for prosecution to prove that accused Jairam @ Vicky purchased rope from his shop by which victim was killed but he turned hostile has stated that accused Vicky never visited to his shop purchase rope and vol. Stated that since many customer used to visit his shop daily he cannot identify each of them hence prosecution has failed to prove that accused Jai Ram @ Vicky has purchase the rope by which victim was murdered from his shop.

STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 17 OF 77 18

16. PW3 Ct. Suman participated in the investigation with IO on 19.09.2010 and deposed that on that day, on the asking of the duty officer she reached near the house of Chander Bhan at about 5pm where she found SI Ashok Kumar, HC Rajesh, Ct. Bijender and Inspector Surender Dahiya alongwith one girl Ruby i.e. accused. IO Insp. Surender Dahiya arrested accused Ruby from house of Chanderbhan Kanjhawala vide memo EXPW3/A, interrogated accused Ruby and recorded her disclosure statement and seized her mobile phone and then accused Ruby led to H.No.F6, Rajdhani Park, Nangloi on her instance arrested accused Jairam from his house and seized his mobile phone.

17. PW4 Ct. Dinesh Singh is a formal witness as he is PCR operator and only deposed that on 18.9.2010 he received phone call from phone no. 9654546096 that "one lady ne phansi laga li hai" and he filled PCR form 1 EXPW4/A. He was not crossexamined.

18. PW5 Suraj Bhan and PW6 Ajay are most material witness for prosecution to prove motive as well as last seen. Their testimonies will be discussed later on.

19. PW7 Ct. Chote Khan is a finger print expert and deposed on 18.09.2010 he reached at spot i.e. house of STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 18 OF 77 19 Chanderbhan behind SBI Kanjhawala and took three chance print from locker of Almirah. No suggestion has been given to him that he did not lifted chance print. Hence, said fact remained undisputed.

20. PW8 Dr Manoj Dhingra conducted postmortem on the dead body of victim Ishwanti and prepared PM report EXPW8/A. In his crossexamination he denied that it is a case of suicide.

21. PW9 Inspector Sanjay Gede is incharge Crime Team and deposed that on 18.9.2010 he inspected spot i.e. house of Chander Bhan village Kanjhawala and prepared report EXPW9/A.

22. PW10 Dr. Deepak only gave opinion that, ligature mark present on the PM Report Ex.PW8/A could be possible by rope EXP2 and he proved his report EXPW10/A.

23. PW11 Ct. Sanjay is a formal witness, as he is special messenger despite that on 18.09.2010, he deliver copy of FIR to concerned MM and higher official.

24. PW12 Dr. Lingaraj Sahoo is Senior Scientific Officer and proved the FSL Report Ex.PW12/A.

25. PW13 Naresh Kumar Sharma is finger print expert and proved his report as Ex.PW13/A. STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 19 OF 77 20

26. PW14 SI Om Prakash is DO and proved DD entry Ex.PW14/A and FIR of the case Ex.PW14/B and DD No.16 A regarding starting registering of FIR as Ex.PW14/C and DD No.17A as Ex.PW14/D.

27. PW15 Assistant Commandant Ravinder, BSF, the then constable Ravinder is the photographer of the crime team and deposed that on 18.09.2010 he alongwith other Crime Team member reached at the house of Late Chander Bhan at Kanjhawala and took photographs Ex.PW15/A1 to A22 and proved the negatives of the same as Ex.PW15/B15 to Ex.PW15/B22.

28. PW16 SI Manohar Lal is a formal witness and deposed that on 16.11.2010 he prepared the scaled site plan Ex.PW16/A.

29. PW17 Ct. Sat Naraian is a formal witness and deposed that on 28.10.2010 he took one pullanda (containing viscera) to FSL vide RC No.89/21/10 and further deposed that on 29.10.2010, he took pullanda to FSL vide RC No.90/21/10.

30. PW18 Ct. Rajeev is a computer operator and deposed that on 18.09.2010 on the basis of tehrir entered the particulars of said tehrir in the computer and took out copy of FIR STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 20 OF 77 21 Ex.PW14/A.

31. PW19 HC Vijay Singh is MHC(M) and proved the entry of Register No.19 regarding depositing of pullandas as Ex.PW19/A and deposed that pullanda were sent to FSL on 28.10.2010 vide RC No.89/21/10 and 90/21/10 Ex.PW19/B and Ex.PW19/C.

32. PW20 Shishir Malhotra proved (Nodal Officer of Aircel) proved certificate of correctness of computer output of Phone number 8802923049 as Ex.PW20/A, Call details of phone number 8802923049 as Ex.PW20/B, customer application form is in the name of Sanjay as Ex.PW20/D and his election Identity card as Ex.PW20/E. He also proved the CDR of phone number 75033534671 as Ex.PW20/C, customer application form as Ex.PW20/F in the name of Ishwanti, her ration card as Ex.PW20/G and cell ID chart as Ex.PW20/H and Ex.PW20/H1.

33. PW21 SI Ashok Kumar, PW22 Ct. Bijender and PW23 ASI Rajender Singh have participated in the investigation with the IO and almost deposed same fact as deposed by IO to the extent that they participated in the investigation.

34. PW24 Inspector Surender Kumar is the IO of the STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 21 OF 77 22 case. He had deposed that on 18.09.2010 he was posted as Inspector Investigation at PS Kanjhawala and on that day he alongwith HC Rajesh were at Kanjhawala Chowk in the area of PS Kanjhawala. At about 12 noon he received an information from the duty officer that a lady has committed suicide by hanging herself in the house of later Chander Bhan on the back side of SBI, Veer Mohalla, Kanjhawala, Delhi. He alongwith Ct., Rajesh went to the above said spot where ASI Rajender and Ct. Vijender met him. He inspected the house and in the western side of the room of the house a bed and charpai were lying and on the said charpai mirch powder was lying and the articles of the room were found scattered. Broken bangles were scattered in the room, one hair clip was also found. Red colour thread was lying in the room. In the store room near to this room a dead body was lying whose face was towards down side. One rope was tied down on her neck and the other side of the rope was tied with the kundi of sandook lying on the one another sandook. One chunni was tied on the neck of the deceased and there was blood stains on the floor towards the leg of the dead body. On interrogation the name of deceased came to know as Ishwanti @ Guddy w/o. Late Shri Chander Bhan. He prepared the STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 22 OF 77 23 tehrir Ex.PW24/A vide DD No.13A, as no eyewitness was found at the spot. ASI Rajender went to the PS alongwith tehrir and after sometime Ct. Vijender was also sent to the PS Kanjhawala with the direction to ask ASI Rajender Singh to bring IO bag at the spot and he was directed to bring FIR copy and tehrir. ASI Rajender Singh came to the spot alongwith the IO bag and handed over the bag to him. He inspected the spot and prepared the site plan Ex.PW24/B. He recorded the statements of crime team officials. He further deposed he took into possession of chilly powder vide memo Ex.PW22/B, rope and chunni vide memo Ex.PW22/C, blood stains earth control with blood stains hair into possession after preparing pullandas sealed with the seal of SD vide memo Ex.PW22/D, mirchi powder from the spice container (masaledani) from the kitchen Ex.PW22/F. He further deposed that he had also taken into possession broken bangles, hair clip and threat in a pullanda, earth control in the plastic dibbi, mirchi powder scattered on the charpai in the plastic dibbi in separate pullanda and seized vide memo Ex.PW22/A, Ex.PW22/E and Ex.PW22/B respectively and thereafter, dead body of Ishwanti @ Guddy was sent to SGM Hospital mortuary in a tempo through Ct. Vijender. He recorded statements of the STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 23 OF 77 24 witnesses Ajay and his uncle Suraj Bhan 2 Kala and he also interrogated other persons present at the spot and we all went to the PS alongwith case property. Case properties were deposited by him in the malkhana.

He further deposed that on the next day, he got conducted the postmortem examination on the body of the deceased Ishwanti @ Guddy.

He further deposed that, on the same day, at about 4pm he alongwith SI Ashok Kumar, HC Rajesh and Ct. Vijender went to the house of deceased at the house of Chander Bhan on the back side of SBI at Kanjhawala in his own vehicle where a girl namely Ruby alongwith other members of the family met him. He called Wct Suman from the PS to interrogate Ruby. He interrogated other family members at the spot. After arrival of Wct Sman, Ruby was interrogated and after sustained interrogation she confessed her crime and stated that she alongwith her associates Jai @ Vicky committed murder of her mother Ishwanti @ Guddy. Ruby also stated that she used to talk with the mobile phone. Thereafter, accused Ruby was arrested vide memo Ex.PW3/A and her personal search was conducted by WCT Suman vide memo Ex.PW3/B. One STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 24 OF 77 25 mobile which accused Ruby was carrying model 1662 of black colour having SIM No. 8802923049 and also mentioned IMEI Number on the memo and the same was converted into pullanda and seized vide memo Ex.PW21/A. The disclosure statement of accused Jai Ram was also recorded Ex.PW21/G in which he had confessed that the commission of crime with his lover Ruby and he also stated that his sister was living at Najafgarh and he used to visit her house and developed intimacy with Ruby as he was also living at Najafgarh at that time. During disclosure statement that deceased was having illicit relations with one Balraj and at Najafgarh, deceased defamed because of the relationship with Balraj, she has transfered to Kanjhawala at her house alongwith her children. At her house, Balraj still visiting there at Kanjhawala. Accused Jai Ram @ Vicky put a proposal to deceased marry with accused Ruby, but she refused the above proposal and thereafter accused Ruby conspired with Jai Ram and committed murder of Ishwanti @ Guddy. Both the accused persons were got medically examined from SGM Hospital by WCT Suman and Ct. Vijender.

Thereafter, he further deposed that accused persons were taken to dossier cell, Rohini, Sector1 and their finger prints, STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 25 OF 77 26 search slip were prepared thereafter they were produced before concerned court and they sent to JC. He further got prepared the scaled site plan from Draughtsman SI Manohar Lal and collected the photographs from the photographer of the spot, he also deposited the finger print search slips of both accused and deceased and collected the finger print from the Bureau Delhi Police, Delhi. He also collected the PCR form Ex.PW4/A. He also collected the postmortem report and thereafter he also took the subsequent opinion from the doctor after showing him the rope recovered from the spot. He also sent the exhibits of this case through Ct. Sat Narain to FSL. He also recorded statement of deceased and after completion of the investigation filed challan in the court. Witness correctly identified both the accused persons.

In his cross examination he denied the suggestion that, any statement of accused Ruby was recorded on 18.09.10. he had volunteered that, however, interrogation was made from her in the late hours of 18.09.2010. He further denied the suggestion that on 18.09.2010 during the course of investigations, accused Ruby had disclosed that her mother has been killed by one person named Balraj.

STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 26 OF 77 27 In his cross examination by ld. Counsel for accused Jai Ram @ Vicky he had stated that, he reached to the house of Jai Ram at about 7:30pm. He had asked four/five neighbours to join the proceedings but all the of them refused. He denied the suggestion that no telephone was recovered from the possession of accused Jai Ram. He further stated that it is not in his knowledge if the deceased's telephone was lost or any FIR was lodged in this regard. Disclosure statement of Jai Ram was recorded inside his house. He further stated that he had not asked any public person to join the investigations on 19.09.2010, when he started from the house of accused Ruby i.e. spot for arresting the accused Jai Ram. Statement of Suraj Bhan and Ajay was recorded on 18.09.2010. The house of accused Jai Ram was two stories. The mother of the accused was in the house, but his father was not in the house. He denied the suggestion that, disclosure statement of accused Jai Ram was not recorded at the spot or that the disclosure statement was recorded by him on his own at the PS or that no nokia mobile phone was recovered from the accused Jai Ram.

He further stated that he had not recorded the statement of Balraj u/s.161 Cr.P.C. but he volunteered that he had mentioned STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 27 OF 77 28 the contents of interrogation of Balraj in the CD dated 18.09.2010. He further stated that he only came to know through the confessional statements of both the accused persons that deceased had illicit relationship with Balraj. He further stated that he had interrogated the Balraj to ascertain whether he is involved in the commission of murder of deceased or not. Balraj was called in PS through telephonic information. He had not verified the whether Balraj is bad character of DistrictJhajjar, Haryana. He did not come to know about the said fact during my investigations. He had not done any investigation for recovery of documents of property which was given by deceased to Balraj as confessed by accused Ruby in her disclosure statement Ex.PW21/F. He had obtained the call details of Balraj from Karnal, Haryana. He had not placed the same on record. He denied the suggestion that he had not properly investigated this case.

35. Accused Ruby examined two witnesses in her defence as DW1 Ms. Shikha and DW2 Smt. Chanderbala her grand mother (nani). Their testimonies will be discussed later on.

FINDING

36. As stated above, there is no eyewitness to the STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 28 OF 77 29 incident. The entire case of the prosecution is based upon circumstantial evidence.

37. The prosecution has mainly relied upon following circumstances to prove the guilt of the accused persons:

(i) The death of deceased/victim was homicidal, as she was strangulated, after pressing her neck with a rope.

(ii) That both the accused persons have motive to kill the victim as they love each other and wanted to marry, which was opposed by the victim.

(iii) Accused Ruby is the last person who seen victim alive

(v) The recovery of mobile phone of Ishwanti bearing number 7503534671 from the possession of accused Jai Ram @ Vicky.

(vi) The recovery of mobile phone number 8802923049 from accused Ruby.

(vii) The call details of aforesaid two mobile phones to prove that they were in contact with each other on phone and the locations of both the phones at the time of incident which prove that they were near the spot.

38. It is settled law that conviction can be made on the basis of circumstantial evidence. But, it has been consistently laid down by Higher Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 29 OF 77 30 when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.

39. In C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:

"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....".

STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 30 OF 77 31

40. In Padala Veera Reddy v. State of A.P. and Ors.

(AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

41. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed as under: "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 31 OF 77 32 be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

42. In Sharad Birdhichand Sarda v. State of Maharashtra (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of the this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 32 OF 77 33 hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

43. Similar view has been taken in the judgments relied upon by the ld. Counsel for the accused persons.

44. In the light of aforesaid judgments, I shall examine the evidence led by the prosecution to ascertain, whether the accused persons have been able to prove the complete chain of incriminating evidence against the accused persons or not which could lead to the inferences accused persons have committed the murder of Ishwanti and no other person has committed her murder.

HOMICIDAL DEATH

45. As far as death of victim Ishwanti is concerned it is undisputed fact that she had been murdered. Even otherwise, from the testimony of PW8 Dr. Manoj Dhingra, who had conducted the postmortem examination on the dead body of victim Ishwanti and STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 33 OF 77 34 who had proved that victim was having following injuries: External Injuries:

1. Ligature mark 33cm long, dark brown horizontally present all around the neck, upper part circumstances of neck is 32cm, ligature mark is place 7cm below right mastoid process, width is 1cm, 7.5cm below left mastoid process width is 0.8cm, 7.5cm below center of chin, width is 0.8cm, posteriorly ligature mark is diverging into 2 from side of neck, upper one is placed 9cm below occipital prominence 0.8cm in width, dark brown below one is placed 9.8cm below occipital prominence, 0.7cm in width brown in colour.

2. Ligature mark 24cm long brownish obliquely present over front and side of neck merging with hairline posteriorly on right side incomplete on left side, ligature mark is placed 6cm below right mastoid process, width is 1.4cm, 7.1cm below center of chin, width is 1cm, 3.5cm below left mastoid process, width is 1.2cm.

3. Contusion 2.5x1.5cm reddish over back and middle of left clevicular part of chest.

4. Contusion 0.7x0.7cm, reddish over tip of left shoulder.

5. Contusion 3x2cm reddish present STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 34 OF 77 35 3cm lateral to right nipple.

6. Contusion abrasion 4.5cm soft red behind right elbow joint.

7. Contused abrasion 3.5x2cm soft red behind left elbow joint.

8. Abrasion 1 x 1 cm reddish over middle side of left knee joint.

9. Contused abrasion 1.5 x 1cm reddish over right side of neck, 1.3cm below ligature mark, 1 and 5 cm above clevicle.

10. Contusion 0.8x0.6cm reddish over left side upper limb, contusion 0.8x0.8cm reddish over left tip of tongue.

11. Multiple liner abrasion five in number 0.4 to 0.7cm long brownish over front of left wrist.

Internal Examination:

Head: On reflecting the scalp the effusion of blood 4.3cm present over left occipital region over scalp 3x3cm present over left fronto parietal region of scalp. No fracture.

Neck: Hyoid bone intact on fine dissection of skin, underline, ligature effusion of blood present all over soft tissues and muscle below ligature mark.

STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 35 OF 77 36 Opinion: The cause of death was asphyxia as a result of constructing force over neck produced by ligature. Time since death was about 24 hours Further in the cross examination witness was asked specific question that: Question: Can you say that it is a case of suicide? Answer: No, It is not a case of suicide. Voltd. As I have already mentioned in my PM Report Erx.PW8/A that there is effusion present underline ligature mark and there are so many contusions and injuries present on the body of deceased.

Hence, in these circumstances, I held that prosecution has been prove that victim was murdered by strangulation after pressuring her neck by rope.

MOTIVE

46. It is also undisputed fact that victim Ishwanti was found dead in her home situated in village Kanjhawala, where she was residing with her four children including accused Ruby, her daughter, which is also proved from testimony of PW5 Suraj Bhan and PW6 Ajay and from testimony of PW3 Ct. Suman, PW21 SI Ashok, PW21 Ct. Bijender and PW24 Inspector Surender Dahiya. Undisputedly victim was not murdered for committing robbery as it is not the defence of the accused persons that valuable articles have STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 36 OF 77 37 been stolen from the house. Hence, in all probability victim was murdered due to some personal reason or due to enmity. What could the motive for her murder.

47. In a case based upon circumstantial evidence, motive becomes quite important link in the chain of incriminating circumstances to establish whether accused had committed murder or not. Motive always locks up in the mind of the accused and sometimes it is difficult to unlock . Motive is the inducement for doing an act. People do not act wholly without motive. The evidence of motive becomes important once a crime is committed. The existence of motive assumes significance but the absence of motive does not necessarily discredit the prosecution case. The proof of motive is never an indispensable for conviction. The absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case. It was observed in case State of U.P. V Babu Ram, 2000 (11) AD 285 as under : No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 37 OF 77 38 accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental imposition of an offender towards the person whom he offered.

48. Dr. Tarseem Kumar Vs. Delhi Admn (1994) Supp (3) SCC 767 also it relied upon by ld. Counsel for the accused Jai Ram @ Vicky it is held that: "Normally there is a motive behind every criminal act and that is why investigating agency as well as the Court while examining the complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. It has been repeatedly pointed out by this Court that where the case of the prosecution has been proved beyond all reasonable doubts on the basis of the materials produced before the Court the motive loses its importance. But in a case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. Of course, if each of the STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 38 OF 77 39 circumstances proved on behalf of the prosecution is accepted by the Court for purpose of recording a finding that it was the accused who committed the crime in question, even in absence of proof of a motive for commission of such a crime, the accused can be convicted. But the investigating agency as well as possible as to what was the immediate impelling motive on the part of the accused which led him to commit the crime in question."

49. As per the prosecution case both the accused had committed murder of victim/deceased Ishwanti because they had love affairs and they wanted to marry, which was opposed by the victim Ishwanti, mother of the accused no.2 Ruby. In order to prove the same main witness of the prosecution was PW5 Suraj Bhan. But in his testimony recorded before the court, PW5 Suraj Bhan had stated that accused Jai Ram @ Vicky had never visited the house of his Bhabhi in his presence with he saw him visiting at her house and only after the incident, he came to know that the accused is the residents of Nangloi and he has no knowledge if accused Ruby i.e. his niece wanted to marry with accused Jai Ram @ Vicky or that his bhabhi had refused for the same. He had also denied that he had seen the accused persons Jai Ram @ Vicky and Ruby were coming out from the house of his sister in law (Bhabhi) in the morning on STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 39 OF 77 40 18.09.2010. hence, the witness has not supported the prosecution case, therefore, he was declared hostile and he was cross examined by the ld. Addl. PP for the State. In his cross examination, though, he admitted that his statement was recorded by police on 18.09.2010, despite confronting his statement dated 18.09.2010, but he denied that he has stated to the police that one boy Jai Ram, who is resident of Rajdhani Park, Nangloi used to visit to the house of his Bhabhi prior to the incident. If he came to know his niece Ruby wanted to marry him or that his bhabhi refused to marry with him. He also denied that the suggestion that he stated to police that, in the morning at about 8.30/9am, when he was passing through the gali and was present in front of the house of Ishwanti he seen the accused persons were coming out from the house of victim and they were walking very sharply at that time. Hence, in these circumstances, despite cross examination by ld. Addl. PP for the State, PW5 Suraj Bhan did not supported the prosecution. Hence PW5 testimony is useless to prosecution. But at the same time it is not fatal to the prosecution because he is uncle of accused Ruby therefor it is quite natural that he did not testify against her.

50. The other important witness examined by the STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 40 OF 77 41 prosecution is PW6 Ajay. He is the brother of accused no.2 Ruby and son of the victim and a child witness as he was 11year old at the time of recording his testimony. He had testified that when he came back from school he saw her mother was lying on floor and her sister Ruby was not found present at the house from the time he came from school till police arrived and he also testified that accused Jairam used to visit to their house prior to the incident. He has correctly identified the accused Jairam. No suggestion has been given to PW6 by the accused persons that accused Jairam did not used to visit to the house of victim merely he was confronted with his statement Ex.PW6/DA, where it is not mentioned that accused used to visit their house prior to the incident. In my view his testimony cannot be discarded merely because in his statement to police he did not stated that accused Jairam used to visit their house. Further no reason has been given by accused Persons why PW6 would deposed falsely after all accused Ruby is his sister, he would not implicate her falsely. Hence there is no reason to discard his testimony. Hence from the testimony of PW6 it is proved that accused Jairam used to visit to the house of victim/accused Ruby.

51. I do not find force in the contention of Ld. Counsel STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 41 OF 77 42 of accused persons that even if it is presume that accused Jairam used to visit to victim/accuse Ruby house even then it is not proved that Ruby had love affairs with the accused Jai Ram @ Vicky or that his mother was opposed to the marriage of his sister Ruby with accused Jai Ram @ Vicky, because no suggestion has been given by the prosecution in this regard to PW6 and further no other witness has deposed in this regard hence prosecution has failed to prove that both the accused persons had love affairs or that victim was against their marriage. But in my view once prosecution has able to prove that accused Jairam used to visit to the house of accused no. 2 Ruby, hence, onus shifted on both the accused to prove why accused Jairam used to visit in the house of accused Ruby as these fact was in special knowledge by virtue of Section 106 of Indian Evidence Act. But as stated above both the accused persons have falsely denied in their statements U/s 313 Cr.PC that accused Jairam used to visit to the house of accused Ruby hence same is also an incriminating circumstance against the accused persons. Presumption can be raised against them that they denied the fact they know each other because they want to hide their relationship. Hence in these circumstances it cannot be ruled out that accused STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 42 OF 77 43 persons have motive to commit murder of victim as she might be against their relationships. Further as claimed by accused Ruby herself and DW1 and DW2 that her mother had illicit relationship with one Balraj and she apprehended that accused Balraj is grabbing property of her mother. Hence this could also be one more reason to kill the victim in which accused Jairam has aided her. Hence, both the accused persons have motive to commit murder. Further as alleged by accused Ruby, Balraj has illicit relations with the victim. Therefore, accused Balraj may also have motive to murder victim. But in my view prosecution has been able to prove that accused persons also have motive to commit murder of the victim Ishwanti. .

Recovery of Mobile Phone

52. As per testimony of PW24 Inspector Surender Dahiya on 19.09. 2010 at about 4.00 PM he interrogated accused Ruby at her house and thereafter he arrested her vide arrest memo EXPW3/A and one mobile phone EXPW Nokia 1662 EXP21/1 having sim No. 8802923049 recovered from her possession which he seized vide seizure memo EXPW21/A. On perusal of seizure memo EXPW21/A I found that that mobile phone IMEI no. is mentioned as 357998/03/083165/9 and same IMEI no. is mentioned on the call STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 43 OF 77 44 details of phone no.8802923049. Hence it is proved that said hand set was being used for phone no. 8802923049. No suggestion has been given to him that no such phone was recovered from her possession.

53. PW Inspector Surender Dahiya has also deposed that Accused Ruby made disclosure statement Ex.PW2/F in which she confessed that she committed murder of her mother with accused Jai Prakash and on the same day accused Ruby led them to the house of accused Jairam i.e. house no. F6 Rajdhani Park, Nangloi where outside the house accused Jairam was standing and he was apprehended and from search of accused one mobile phone Nokia was recovered from right hand side pocket of lower of track suit which accused was wearing at that time. He further deposed that mobile phone was having a Aircel Sim with mobile number 7503534671 which was seized vide seizure memo Ex. 21/D. He further deposed that mobile phone IMEI was washed away. He identified the mobile phone as EXPW21/2. I see no reason why he will falsely deposed against the accused persons. Mobile phone no. 7503534671 is in the name of Ishwanti. More ever from the answer given by PW24 that he had no notice that said phone was stolen STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 44 OF 77 45 prior to incident it appear that accused Jairam was taking the defence that said phone was stolen prior to incident. If that was the case why no report of its theft was lodged or if lodged why not placed on record. More ever why SIM was not got blocked to prevent its misuse. The only reason appear to be not lodging the complainant appeared to be phone was given to accused Jairam probably by accused Ruby for having conversation with him. That is why most of the time location of said phone is Rajdhani Park, where house of accused Jairam is situated. PW3 WCt.Suman, PW21 SI Ashok and PW22 Ct. Bijender has also deposed the same facts about the arrest and recovery of accused persons as deposed by PW24. Nothing much has come out in their crossexamination to dis believe their testimonies.

54. I also do not find any force in the contention of Ld. Defense Counsel that since no independent public persons have been joined in the investigation therefor their testimonies are not reliable. It is known fact that public person do not come forward to become witness either due to backless from accused person or they do not want to waste their precious time in going to police or court. In my view testimonies of police official are at par with any other witness STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 45 OF 77 46 and their testimonies cannot be discarded merely because they are police official unless some malafide is shown to them. In support of my view I rely upon recent judgment of our own High Court titled as "Nitin Verma vs State CRL.A.289/2013 & Death Sentence Ref. 4/2012". In this case in para 40 fact of the case were mention as: " It is the case of the prosecution that accused had provided a mobile phone of Haier HCC2000 with Sim card of Tata Indicom bearing No.9250968973 to Surbhi and she used to remain in touch with him from this phone. Inspector Anil Kumar has deposed that he contacted Surbhi. Her Haier HCC2000 mobile phone was taken in possession vide memo Ex.PW11/A. Surbhi Rana admitted her signatures at point „B‟ on seizure memo Ex.PW10/A and deposed that usually she does not sign any document without going through its contents but went on stating that her signatures were obtained on a blank paper. Even her father PW10 Hari Singh Rana had deposed that his signatures were obtained on blank paper. The reason for Surbhi or for that matter her father for not supporting the case of prosecution are quite obvious as discussed above".

In para 41 hon' ble justice while relying upon testimony of police official held as under: "41. However, Inspector Anil Kumar(PW31) and SI Jitender Dagar (PW20) both have deposed that they went to the house of Surbhi at Palam Colony, where she produced her mobile phone in the presence of STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 46 OF 77 47 her father, which was taken into possession vide seizure memo Ex.PW10/A. There is no reason to disbelieve the testimony of the police officials in this regard. The testimony of police personnel have to be treated in the same manner as testimony of any other witnesses and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies, as much in favour of police personnel as of other person and it is not a proper judicial approach to distrust and suspect them without good ground. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down as held in Karanjit Singh Vs. State (Delhi Admn.) 2003 5 SCC 291, C. Ronald & Anr. Vs. Union Territory of Andaman & Nicobar Islands, (2001) 1 SCC (Crl.) 596. In Sunil Clifford Daniel vs. State of Punjab, 2012 11 SCC 205, Apex Court referred to State Govt. of NCT of Delhi v. Sunil and Anr., (2001) 1 SCC 652, wherein Court held as under: "20. ... But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth.

21. We feel that it is an archaic notion that actions of the police officer should be approached with initial STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 47 OF 77 48 distrust.....At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way round. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through crossexamination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."

42. In Madan Singh vs. State of Rajasthan, 1979 SCC (Cri) 56, it was observed that where the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the prosecution version. Similar view was expressed in Mohd. Aslam STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 48 OF 77 49 vs. State of Maharashtra, 2002 SCC (Cri) 1024.

In Antar Singh vs. State of Rajasthan, 2005 SCC (Cri) 597, it was further held: "10.....even if Panch witness turn hostile which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated.

This view was reiterated in Rameshbhai (supra) by observing that merely because the Panch witnesses have turned hostile is no ground to reject the evidence if the same is based on the testimony of the investigating officer alone.

In the instant case, testimony of the police officers does not suffer from any infirmity or doubt. Record reveals that no illwill or animus has been alleged against any of the police officials for which reason they will falsely depose regarding handing over of mobile phone by Surabhi. In fact, testimony of SI Jitender Dagar (PW20) and Insp. Anil Kumar (PW31) that Surabhi produced her mobile phone make Haier in presence of her father goes unrebutted as same was not assailed in cross examination. Even no suggestion was given that Surabhi did not produce her mobile phone to police. Under the circumstances, the only conclusion which can be derived is that Surbhi had handed over a Haier HCC2000 mobile phone with Sim card of Tata Indicom bearing No. 9250968973 to the police which was seized vide seizure memo Ex.PW10/A."

STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 49 OF 77 50

55. Hence from the aforesaid judicial pronouncements and from the testimonies of PW3, PW21,PW22 and PW 24 it is prove that mobile phone of phone no. 8802923049 was recovered from accused Ruby and mobile phone no. 7503534671 recovered from accused Jairam.

56. From the testimony of PW24 it is also proved that the accused Ruby has disclosed the house of the accused Jai Ram @ Vicky and led to the house of Jai Ram @ Vicky, which proves that, she knew accused Jai Ram @ Vicky prior to the incident otherwise IO has no means to address of accused Jairam as mobile phone which he was using was in the name of victim.

Call Details

57. Prosecution has also relied upon call details of mobile phone 8802923049 and 7503534671 to prove both accused are known to each other and used to talk continuously with each other. I shall discuss later on whether accused persons were using the said phones and used to have conversations with each other on the said mobile phones.

58. As per testimony of PW20 Shishir Malhotra, Nodal Officer, Aircel Limited, and he has proved the customer application STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 50 OF 77 51 form Ex.PW20/D of mobile phone number 8802923049, which was issued in the name of Sanjay S/o. Ram Singh R/O L1 DDA Flats sector 4 Rohini.

59. PW20 further prove customer application form EXPW20/F of mobile phone no.7503534671 which was issued in the name of Ishwanti w/o Chanderbhan R/O Vill.& P.O Chawla i.e. victim. On perusal of call details EXPW20/B of said phone it is evident that the calls were made from this phone and were received on this phone till 11.00 a.m. on 19.9.2010. Hence said phone was active and used even after the death of victim, therefor same cannot be used by victim Ishwanti.

60. Ld. Counsel for accused Ruby contended that prosecution has failed to lead any evidence to prove that mobile phone no. 8802923049 was being used by accused Ruby. Ld. Counsel has contended that prosecution has failed to explain why Sanjay who was registered subscriber of the said phone was not examined to prove that he has given the said phone for used to the accused Ruby. Ld. Counsel further contended that recovery of Mobile Nokia 1662 from accused Ruby is also doubtful as no document has been placed on record to prove that said mobile STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 51 OF 77 52 phone hand set belonged to Ruby. He argued that such kind of mobile phone are available in market. Further Ld. Counsel for both the accused persons have also contended that prosecution has not examined any person, that mobile phone were used by accused persons, hence prosecution has miserably failed to prove that said phone number was being used by accused Ruby.

61. On the other hand Ld. APP for the State contended that since recovery of mobile hand sets used for the aforesaid mobile phone have been effected from the accused persons and from the call record it is proved that user of both phone was in contact with each other and their call ID location has been found in their respective residential area where as if phone was used by registered user than its location in night hour should be in Rohini area when usually used remain in his house where as location hence it is proved beyond doubt that both accused persons were using the aforesaid phone.

62. But in my view besides recovery of mobile handset and sim from accused Ruby on which aforesaid phone number 8802923049 being used, from the call details of mobile phone no. 8802923049 EXPW20/B it is evident that most of the time STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 52 OF 77 53 in morning or late night location of said phone is at tower no. 3952/3953 and on the day of incident also location of said phone is at same tower till 9.49.30. As per tower location ID EXPW20/H1 tower no. 3953 is installed in Kanjhawala area where accused Ruby was residing. Further at 12.07.25 location of aforesaid phone was at tower no.10531 which as per tower location ID EXPW20/H1 is Chawla village which is the residence of DW2 Chanderbala Grandmother of accused . As per accused Ruby statement U/S 313 Cr.P.C. she visited in Chawla on the day of incident. This cannot be coincidence that location of said phone is found at Kanjhawala and Chawla village when accused Ruby was at Chawla village and also used to talk on the mobile phone of her mother.

63. Similarly beside the recovery of mobile phone handset it is also evident from the call record also that most of the time in late night hour or in early morning hours the location of the mobile phone 7503534671 was in Tower no.3762 which is as per tower location Id chart EXPW20/H1 was situated in Rajdhani Park village Mundaka. In his statement u/s 313 Cr.P.C. accused Jai Ram has given address of Rajdhani Park, Nangloi. It cannot be coincidence that accused Jairam is also residing in the said area STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 53 OF 77 54 where most of the time location of aforesaid mobile phone is found.

64. Further from call details of mobile phone no.

7503534671 EXPW20/C it is also evident that said phone is exclusively used for talking on phone no. 8802923049 as most of the call on mobile phone no.7503534671 are received or made from phone no. 8802923049. The mobile number 75033534671 was in the name of victim Ishwanti. Accused Jai Ram @ Vicky has given no explanation how he was using the said phone. No complaint of lost or theft of said phone has been placed on record. Had the phone often definitely victim would have at least blocked the sim of said phone to prevent its misuse. Hence, prosecution cannot drawn my attention that said phone was given to the accused Jai Ram @ Vicky by accused Ruby. Further both the accused persons have failed to explain in their statement u/s. 313 Cr.P.C. if they were not using the said phone then, what was the mobile phone number, which they were using. DW1 Shikha in her cross examination had stated that she does not remember the mobile phone number of her sister Ruby, which means her sister Ruby was using the mobile phone, therefore, onus was on her to prove that she was using some different mobile phone.

STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 54 OF 77 55

65. Hence, from the recovery of mobile and sim of mobile phone 8802923049 and recovery of mobile phone sim of mobile no. 750354671 from accused Ruby and Jai Ram @ Vicky respectively and continuous conversations between the user of both phones and location of aforesaid mobile phones most of the time at the tower where house of accused Ruby and Jai Ram respectively proved beyond reasonable doubt that phone number 8802923049 was being used by accused Ruby and phone number 7503354571 by accused Jai Ram @ Vicky, which also prove that they have close relationship.

LAST SEEN/ PRESENCE OF ACCUSED AT OR NEAR THE PLACE OF INCIDENT.

66. In a case based on circumstantial evidence last seen evidence and presence of accused persons at or near the place of incident is an important incriminating circumstance. Another circumstance relied upon by prosecution is that victim Ishwanti was with accused Ruby when she was last seen alive and thereafter his dead body was recovered. Supreme Court noted general principles with reference to the principles of last seen together in Bodhraj V State of J&K (2002) 8 SCC 45 as under:

46. "The last seen theory comes into play STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 55 OF 77 56 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 person other than the accused being the 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 together, it would be hazardous to come to a conclusion of guilt in those cases."

67. In Ramreddy Rajesh Khanna Reddy (2006) 10 SCC 172 this Court further opined that even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 56 OF 77 57 at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case."

68. The observation of Supreme Court in 'Muhibur Rahman V State of Assam. (2002) 6 SCC 715 are also relevant on the circumstance of last seen : "The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. In the STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 57 OF 77 58 present case there is no such proximity of time and place."

69. In case of last seen evidence timing of death become very important. Since there is no eye witness to the incident therefor exact timing of death of victim is not known. As per testimony of PW8 Dr. Manoj Dhingra, time since death was about 24 hours prior to conducting the postmortem examination. The postmortem examination on the dead body of victim Ishwanti was conducted on 19.9.2010 at 12 noon. Hence, time of death comes to 12 noon on 18.09.2010 and since science is not so perfect that exact time of death could be given. In my view there could be margin of 34 hours here and there. Recently Division Bench of our own High Court in Ashwani @Sonu CRL.A.969/2010 Dated 27.05.13, while dealing with similar issue of timing of death in PM report it is held in para 16 : " The other limb of argument that as per post-

mortem report, time of death comes at 11:00 a.m., father of deceased visited her house at 10:00 a.m. and knocked the door then, at that time Sonia must be alive, why did she not respond to the calls, meaning thereby that somebody must have come during the period 11:00 a.m. to 5:00 pm. and committed her murder is again devoid of merit inasmuch as, as per the postmortem report, Ex. PW12/A conducted by Dr. V.K. Jha, it started at 1:00 pm. and as per the opinion of the doctor, STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 58 OF 77 59 time since death was approximately 26 hours. From this, learned counsel for the appellant wants the Court to believe that the death had taken place at about 11:00 a.m. In Constipation Venkaiah Vs. State of AP, 1985 SCC (Cri) 464, it was held by Hon'ble Apex Court that medical science is not yet so perfect as to determine the exact time of death nor can the same be determined in a computerized or mathematical fashion so as to be accurate to the last second. Similar view was taken in subsequent judgments reported as Dasari Shiva Prasad Reddy Vs. Public Prosecutor, High Court of AP (2004) 11 SCC 282, RamaReddy Rajesh Khanna Reddy and Anr. Vs. State of AP (2006) 10 SCC 172, Rakesh And Anr. Vs. State of Madhya Pradesh, (2011) 9 SCC 698. In view of the same, coupled with the fact that even the doctor in the postmortem report has given the time since death as "approximately" 26 hrs., it cannot definitely be said that the death had taken place at 11.00 a.m. and not at 10:00 a.m. when the father of the deceased had come to her house. Even otherwise, the door of the house was locked from outside, key of which was ultimately recovered at the instance of accused. This leads to the only irresistible conclusion that it was the accused only, who, after committing the ghastly crime of murdering his wife left the house after locking the same and even when PW1 Satish Kapoor made two calls to him, he did not respond. nor can the same be determined in a computerized or mathematical fashion so as to be accurate to the last second. Similar view was taken in subsequent judgments reported as Dasari Shiva STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 59 OF 77 60 Prasad Reddy Vs. Public Prosecutor, High Court of AP (2004) 11 SCC 282, RamaReddy Rajesh Khanna Reddy and Anr. Vs. State of AP (2006) 10 SCC 172, Rakesh And Anr. Vs. State of Madhya Pradesh, (2011) 9 SCC 698. In view of the same, coupled with the fact that even the doctor in the postmortem report has given the time since death as "approximately" 26 hrs., it cannot definitely be said that the death had taken place at 11.00 a.m. and not at 10:00 a.m. when the father of the deceased had come to her house. Even otherwise, the door of the house was locked from outside, key of which was ultimately recovered at the instance of accused. This leads to the only irresistible conclusion that it was the accused only, who, after committing the ghastly crime of murdering his wife left the house after locking the same and even when PW1 Satish Kapoor made two calls to him, he did not respond."

70. DW1 in her testimony has stated that she left for school at about 7.30am. Where as PW6 has testified that at about 11am when he came back from school he found his mother dead. Hence,considering the occular testimony of aforesaid witnesses I held that victim Ishwanti has died somewhere between 7.30 am to 11.00 am.

71. Testimony of PW5 Suraj Bhan was very important for prosecution in this regard but as stated above he turned hostile STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 60 OF 77 61 and denied that he had stated to the police that, he seen the accused persons Jai Ram @ Vicky and Ruby coming out from the house of his sister in law (Bhabhi) in the morning on 18.09.2010. And despite cross examination by Ld. Addl. PP and confronting his statement given to police he did not supported prosecution case. Hence through oral evidence prosecution failed to prove the presence of accused persons at or near the spot. However his turning hostile is quite natural as he is uncle of accused Ruby hence his testimony is not fatal to the prosecution.

72. It is undisputed fact accused Ruby, along with her mother i.e. victim Ishwanti, her sister Shikha and her brothers Ajay and Sagar were residing at a house situated in village Kanjhawala where victim has also been murdered. DW1 in her cross examination has that accused Ruby was at her house at Kanjhawala when her brother and sister left for school. Hence it is proved that she was the last person who had seen victim alive.

73. From call location of both the mobile phone of accused Ruby EX.PW20/B & EX.PW20/C it is proved that on the day of incident both accused started talking with each other since early morning at 4.19.51. From Call record details of mobile phone STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 61 OF 77 62 no. 8802923049 EX PW20/B prove that the user of the was in the tower range of tower no.3952 and 3953 situated at Kanjhawala till 9.49.30. It is worthwhile to mentioned here again that in Kanjhawala house of accused Ruby is situated. This also prove that accused was in Kanjhawala at least till 9.49.30. Hence at the approximate time of death of victim i.e. between 7.30am to 9.49.30 am accused Ruby was present in the area of Kanjhawala where victim was murdered therefor presumption can be drawn that she was at her house. Therefor onus is on her to prove victim was alive when she left the house.

74. As far as defence of the accused is concerned.

The accused Ruby in her statement u/s 313 Cr.P.C. had stated that she had gone to her sister school at 8.00am and thereafter to her nani house. Thus she has taken the plea of alibi that she was not present at spot a relevant time of murder. And in order to prove of alibi, she her plea examined her sister Shikha and her grandmother Chander Bala as witness. DW1 Shikha has testified that on 18.09.2010 she had left her house for school at 7.30am her teacher has called her sister in school on that day and her sister Ruby came at her school at 8.00am and she remained there for about half an STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 62 OF 77 63 hour and thereafter she had gone to the house of her maternal grand mother. But I do not find her testimonies reliable to the extent that accused Ruby came to her school on the day of incident because first of all she has not stated why accused Ruby came to her school as normally if teacher call someone from family of a student they call parent which in this case would be her mother i.e. victim. Further no such teacher who call her sister or with whom accused Ruby met was examined as witness to corroborate her testimony. Further generally when any person who is not school student or staff visit school he has to make entry in register kept at school but no such school record has been produced. DW1 has admitted that she had not told the said fact to police hence first time while appearing as DW1 she had stated that accused Ruby came to her school on the day of incident. Therefore, in these circumstance I do not find her testimony reliable. She is the sister of accused Ruby it cannot be ruled out that in order to save her she has deposed the said fact. Further DW1 has not stated in her testimony what was her school name or where it was situated. Even if it is presume that she had came to her school at 8.00pm it cannot be ruled out that she may have returned back to her house. As far as testimony of DW1 that STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 63 OF 77 64 after visiting to her school accused went to her grandmother house is concerned same is hearsay because she had not stated that she went to her grandmother house with Ruby.

75. DW2 Smt. Chander Bala, the maternal grand mother (naani) of the accused Ruby and mother of the victim Ishwanti had also testified that Ruby had come to her house at about 9.30am. But as stated above call detail of accused Ruby mobile proved that she was in Kanjhawala till 9.46.30. From call details of her mobile phone EXPW20/B it is proved that accuse Ruby has visited her house on the day of incident but not at the time DW2 alleged but after 12 am (noon) as from the call details it is evident that at 11.38.40 she was having conversation with accused on his mobile phone no.75033534671 and at that time she was in the tower range of tower no 3183 which at tower ID chart EXPW20/H1 is situated at Nangloi road and further from aforesaid call details it is proved that accused Ruby arrived at the range of tower no. 5783 at 12.00.27 which is installed at shivpuri dindapur, Najafgarh and arrived at the range of tower no.10531 at 12.07.25 which is situated at Chawla. Hence accused Ruby had arrived in Chawla area after 12.00(Noon). Therefor it appear DW2 might be trying to save her grand daughter either by creating the false alibi or was herself not STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 64 OF 77 65 sure about exact time of arrival of accused. It is settled law that testimony of defense witnesses is at par with the testimony of prosecution. But here I found documentary evidence that is call detail of mobile phone EXPW20/B much reliable which proved accused was in Kanjhawala at least till 9.46.30 am. Hence, I reject the testimonies of DW1 and DW to the extent that accused Ruby came to school of DW1 at 8.00am or she came at house of DW 2 at 9.30 am. Hence the plea of alibi taken by accused Ruby that she was not at home after 7.30/ 8.00 appear to be false. Hence I held that accused Ruby has failed to discharge the onus that she was not at home when her mother was murdered.

76. Taking a false defense or giving no explanation of incriminating circumstance appearing against him/her in statement u/s 313 statement is also an incriminating circumstance against the accused. In this regard I rely upon In Ashwani @ Sonu Vs State (supra) it is held that : The object of recording the statement of the accused under Section 313 of the Code is to put all incriminating evidence against the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also to permit him to put forward his own STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 65 OF 77 66 version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the court and besides ensuring the compliance therewith the court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simplicitor denial or in the alternative to explain his version and reasons for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to crossexamine him. However, if the statements made are false, the court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialog between the court and the accused and to put to the accused every important incriminating piece of evidence and grant him an opportunity to answer and explain.

77. In Hirabhai Babubhai Patel V State of Gujrat, Crl. Appeal No.1044/2010 dt.01.07.2013, the Supreme Court in para 22 has held "though all the incriminating circumstances which point to the guilt of the accused had been put to him, yet he chose not to give any explanation under Section 313 Cr.P.C. except choosing the STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 66 OF 77 67 mode of denial. It is well settled in law that when the attention of the accused is drawn to the said circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for building the chain of circumstances".

78. Further the accused Ruby has attempted to create false alibi that at the time of murder of her mother she was not at her home which is also relevant as conduct of accused. As per section 8 illustration (e) of Indian Evidence Act creating false evidence is relevant as conduct of accused. Same is reproduced as below: illustration (e) A is accused of a crime The fact that , either before or at the time or after the alleged crime, A prove evidence which would tend to give to the facts of the case an appearance favourable to himself, or he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it are relevant.

79. As far as accused Jai Ram @ Vicky is concerned he also denied that he knew accused Ruby or that he visited to the house of victim. From the call record EXPW20/C it is prove that his STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 67 OF 77 68 mobile phone no. 7503534671 was in the tower range of tower no. 3762 till 6.40.36. As per cell tower ID chart EXPW20/H1 said tower is situated at Rajdhani Park Nangloi. Further from aforesaid call record it is proved that he arrived in the tower range of 3952 and 3953 situated at Kanjhawala at 7.46.42 and remain their till 9.58.31. It is worthwhile to mention here spot of incident is also situated in Kanjhawala. Hence it is proved he was present at or near the spot at the relevant time of murder of victim Ishwanti. as per section 106 Indian Evidence Act burden shifted on him to explain why he has present in the area of Kanjhawala at the aforesaid time if not for the purpose of committing the murder of victim. But he has not given any explanation in his statement u/s 313 Cr.P.C except denying that he was not using the aforesaid phone, or not knowing victim which proved to be false in the light of testimonies of PW3, 21,22&24 who have proved the recovery of aforesaid mobile phone from him and PW6 who has proved that accused used to visit to their house. More ever I failed to find any reason if he was not known to accused Ruby or victim the how the IO would came to know about him and why he will falsely implicate him.

80. Hence in these circumstances, when prosecution STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 68 OF 77 69 has been able to prove that both accused were known to each other and they used to continuously talk with each other and on the day of incident they had long conversation on their phone after which accused Jairam had come in the area of Kanjhawala probably on the calling of accused Ruby and was present in the area at the time when probably victim was murdered. It is also proved that accused Ruby was also present at her house at the relevant time. It is also proved that motive of murder was not robbery as it is not the defense of accused persons that any theft of any article has been committed. probable motive of murder was enmity. Therefor in these circumstances it is for the accused persons to state and explain what had happened. Section 106 of the Evidence Act, is applicable and states that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In Crl. Appeal 672/2009 titled as Md.Abrar @ Jodhi Vs. State ( Govt. of NCT of Delhi) decided on 27th sept, 2012 Hon'ble Justice S.P. Garg held that "it was for the appellant to state and explain what had happened. Section 106 of the Evidence Act, is applicable and states that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him It would be apposite to STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 69 OF 77 70 mention that Supreme Court in 'State of W.B. v. Mir Mohammad Omar. (2000) 8 SCC 382, held: "37. The section is not intended to relieve the prosecution of it burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference."

In 'Trimukh Maroti Kirkan v. State of Maharashtra. (2006) 10 SCC 681, Supreme Court held: "14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 70 OF 77 71 v.Director of Public Prosecutions [ 1944 AC 315 :

(1944) 2 All ER 13(HL)] -- quoted with approval by V.Karnail Singh [(2003) 11 SCC 271 : 2004 SCC (Cri) 135] .) The law does not enjoin difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case.

Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:

"(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him."

15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to believed by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 71 OF 77 72 of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."

81. But as stated above both the accused have taken false defense that they are not present at the spot and also hide their relationships which is also an incriminating circumstance against them.

82. Accused Ruby has also taken the plea that her mother might have been been murdered by accused Balraj. She has stated in her statement U/S. 313 Cr.P.C. that her mother had illicit relationship with one Balraj who used to visit their house and used to quarrel with her mother to grab her property and he has also threatened her grandmother by putting gun on her few month prior to the incident. She had further stated that she told the said fact to the IO in her statement dt.18.09.2009. DW1 also corroborated her statement. As she has testified that one Balraj used to visit their house and harass her mother and other family member and once given beating to her and her sister when her sister asked him not to visit to her house. But I do not not find her testimony reliable as If Balraj was harassing her mother nothing stopped her to make STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 72 OF 77 73 complainant to the police or banning his entry.

83. DW2 to also in her testimony had stated that about four month prior to incident Balraj met her on the road when she was coming from Chawla side and asked him to leave harassing her daughter but he shown him a katta and she immediately slapped her and he warned her not to interfere in hi matter otherwise he would killed her. Ishwanti owned lot of land and other properties due to which Balraj wanted to grab the same and he also wanted to grab the compensation of Rs 15 lakh which Ishwanti received on the death of her husband. I also do not found her testimony reliable because she has not explained why she has not made any complainant despite such a big incident. Hence said allegation appeared to be afterthought to save her grand daughter Ruby. The said Balraj might have illicit relation with victim as is evident from the investigation of IO mentioned in the case diary. From case diary it is mentioned that said Balraj call details were verified and at the relevant time he was not found at or near the spot. I see no reason why IO of the case will absolve the Balraj if he was involved in the murder. He has found the incriminating evidence against the accused persons therefor I do not see any reason that he should STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 73 OF 77 74 take action against Balraj merely because Balraj might have illicit relation with victim. Hence, second defense of accused Ruby also does not appear to be much inspiring.

84. Ld. Counsel for the accused has also argued that since accused Ruby had herself came on the spot immediately after hearing the news of death of her mother. Hence, conduct of the accused prove that she was not the murderer otherwise why she would not have come on the spot. In this regard he has placed reliance upon Pankaj @ Pintoo (Supra). But I do not found force in his contention because as stated above accused had came on the spot only after creating false alibi that she had gone to her sister's school and her grand mother house, she was well aware that if she will not come to the spot after hearing her mother's death direct suspicion will go on her, hence, in these circumstances, no benefit can be given to the accused that after hearing the news of she herself came at the spot.

85. Hence in view if aforesaid discussion I held that prosecution has been proved beyond reasonable doubt following chain of incriminating circumstances against the accused persons.

86. (i) Postmortem Report Ex.PW8/A proved that Victim Ishwanti STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 74 OF 77 75 was murdered by pressing her neck with rope.

(ii) testimony of PW6 Ajay proved that Accused Jai Ram @ Vicky was to visit to the house of victim Ishwanti.

(iii) both accused persons falsely stated in statement U/S313 Cr.P.C. their relationship and stated that they were unknown to each other.

(iv) victim has illicit relationship with one Balraj which is not like by accused Ruby

(iv) It is proved from testimony of DW1 that victim was alive till 7:30am and at that time accused Ruby was alone at the house, hence, she is last person who seen alive the victim Ishwanti.

(v) From the testimony of PW6 it is proved that victim was found dead at 11:00am, hence it is also proved that victim died in between 7.30am to 11:00 am.

(iv) Recovery of mobile phone Nokia having AIRCELL Sim number 8802923049 from accused Ruby and recovery of phone Nokia phone having sim of number 75033534671 from accused Jai Ram @ Vicky.

(v) Call detail Ex.PW20/B of phone number 8802923049 and call details of Ex.PW20/C of phone number 7802534671 prove that, both STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 75 OF 77 76 used to having conversation with each other regularly which prove that they were clearly in relation with each other.

(vi) The aforesaid call details proved that on the day of incident from the recovery of both accused persons on the aforesaid phone started talking with each other and at about 7:46:42 accused Jai Ram @ Vicky came in the range of tower no.3953, which is installed at Kanjhawala.

(vii) From the said call Ex.PW20/B, it is proved that accused Ruby remained in the range of tower no.3952/3953 installed at Kanjhawala till 9:49:30 and from the call detail Ex.PW20/C it is proved that accused Jai Ram @ Vicky remained at the range of tower no.3952 till 10:15:19 then it is proved that both the accused persons were present in Kanjhawala at least till 9:46:30. Hence, both accused persons were in the are of Kanjhawala at the relevant time when victim was murdered.

(viii) Accused Ruby created false alibi that she was at school of her sister from 8 to 8.30am and then she went to her grand mother house.

87. Hence, in my view taking into account all the aforesaid incriminating circumstances together, I held that, STATE VS JAI RAM @ VICKY & ANR S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC. PAGE 76 OF 77 77 prosecution has been able to prove complete chain of incriminating circumstances, which proved that accused persons have committed the murder of victim Ishwanti and rule out that any other person except accused persons have committed the murder.

88. Hence, considering the facts and circumstances, I held that, prosecution has been able to prove beyond reasonable doubt that both the accused persons in furtherance of their common intention have committed the murder of victim Ishwanti. Hence, I convict both the accused persons for offence u/s. 302/34 IPC. Now to come up for order on sentence.

Announced in the open court                                                                    (SANJEEV KUMAR)
On 26.10.2013                                                                    ADDITIONAL SESSION JUDGE:
                                                                                            ROHINI COURTS: DELHI




STATE VS JAI RAM @ VICKY & ANR           S.C. NO.27/13/// FIR NO.180/10///// PS KANJHAWALA/////U/S. 302/34 IPC.                            PAGE 77 OF 77

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State vs Jai Ram @ Vicky & Anr S.C. No.27/13/// Fir ... on 30 October, 2013