Delhi District Court
37. It Has Been Held In Ramesh Bhai & Anr. vs . State Of on 27 September, 2011
IN THE COURT OF MS. MADHU JAIN,
ADDITIONAL SESSIONS JUDGE01, NORTH, DELHI.
FIR No.: 240/2010
PS: : Civil Lines
U/s: 376/302 IPC
S.C. No.: 40/2011
Case ID No.02401R0159372011
In the matter of:
State
Vs.
Achey Lal
S/o Bermadin
R/o Village Dharjai, P.S. Kuradhar,
Distt. Sultanpur, U.P.
Present Address:
Gali no. 12, Gopal Pur,
Timarpur, Delhi
Date of receiving in Sessions Court : 26.4.2011
Arguments Heard : 27.9.2011
Date of Judgment : 27.9.2011
JUDGEMENT
Case Of Prosecution:
1. On 31.12.2010 on receipt of DD no. 18, Inspector Rakesh Kumar alongwith Constable Sudesh Kumar reached at the spot at L11, Majnu Ka Tila, Delhi and met SI Bhoopender Kumar, ASI Yashwant and Constable S.C. No.: 40/2011 1/25 Sudhir Kumar who had apprehended the accused at the spot. On the ground floor of house no. L11, Majnu Ka Tila, dead body of a female aged about 60 years was lying on the floor which was covered upto breast with a blanket.
The dead body was naked from breast to its feet and one empty bottle of Bonney Whisky was lying near the dead body. The other articles and utensils of the house were also lying in scattered condition and one mobile phone make Nokia was also lying at the side of head of dead body near the pillow. One Ms. Manisha met the IO at spot and gave her statement that deceased Sharda Devi who used to work as Maid servant in the nearby houses resides at said house alongwith her husband. Deceased Sharda Devi had taken Rs. 20/ from her mother yesterday and had asked her mother to call her for household works as and when required. Therefore on 31.12.2010 at about 12.30 p.m. she had come to the house of deceased to call the deceased Sharda Devi for household works but when she reached at the house of deceased, she saw that the door was partially opened. She knocked the door but no one responded. She opened the door and called the deceased by " Aunt Aunt " but the deceased who was lying on the floor did not respond. The Kameez of deceased was lifted up to its neck . She pulled down the same and called the neighbours. At that time, accused who was under the influence of liquor was standing outside the gate of room and was not allowing the public persons to enter into the room by saying that deceased is like her mother and she is not dead but is sleeping after consuming liquor. Thereafter public persons apprehended the accused and called the police at 100 number. After recording the statement of witnesses, IO got the case u/s 376/302 of IPC registered at P.S. Civil Lines, sent the dead body to Subzi Mandi Mortuary for S.C. No.: 40/2011 2/25 postmortem examination and arrested the accused. During the further investigation of the case, scene of crime was got inspected through Crime Team, site plan was prepared, exhibits were sent to FSL for expert opinion, details regarding the ownership etc. of Nokia mobile phone recovered from the spot were collected and after completion of investigation, challan U/s 376/302 IPC was filed against the accused in the court.
2. Since the offences U/s 376/ 302 of IPC are exclusively triable by the court of sessions, therefore, after supply of the documents, Ld. MM committed the case to the court of Sessions.
Charge Against The Accused:
3. Prima facie case U/s 376/302 of IPC was made out against the the accused. Charge was framed against him to which he pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined 28 witnesses in all.
5. The brief summary of deposition of prosecution witnesses is as under:
Formal Witnesses:
6. PW 2 is SI Mahesh, Draftsman from Crime Team who took rough notes and measurements of the spot and on the basis of the same, prepared scaled site plan Ex. PW2/A.
7. PW3 is Constable Mahi Lal Singh who delivered the copies of FIR at the residence of senior officers on 31.12.2010. S.C. No.: 40/2011 3/25
8. PW4 is Lady Constable Beena who recorded DD no. 18 and proved the same as Ex. PW4/A.
9. PW 6 is Head Constable Sushil Kumar who registered the FIR and proved the same as Ex. PW 6/ A. He had also recorded DD no. 22A and 23A and proved the same as Ex. PW6/C and Ex. PW6/D respectively.
10. PW8 is Constable Sunil Kumar who took the exhibits to FSL, Rohini and deposited the same there.
11. PW 9 is Head Constable Ram Kumar, the MHC(M) who has proved the entries regarding deposition of case property in malkhana.
12. PW 10 is Sh. Raja Ram, the landlord of deceased who identified the dead body of deceased vide statement Ex. PW10/A.
13. PW11 is Sh. Vishal Gaurav, Nodal Officer from Bharti Airtel Ltd. who has proved the call details alongwith other documents and ID location of mobile phone no. 8826718724 in the name of wife of accused as Ex. PW11/A to Ex. PW11/F.
14. PW12 is SI Devender Purang, Incharge, Crime Team who inspected the scene of crime and proved the report as Ex. PW12/A.
15. PW13 is Constable Inderpal , Photographer from Crime Team who took photographs of the scene of crime as well as of dead body from different angles and proved the same as Ex. PW13/A1 to Ex. PW13/A8 . He further proved the negatives as Ex. PW13/B1 to Ex. PW13/B8.
16. PW14 is ASI Manish Kumar Bhardwaj from Mobile Crime Team who developed chance prints from bonnie quarter bottle and glass on the directions of IO and prepared the finger print expert report Ex. PW14/A. S.C. No.: 40/2011 4/25
17. PW 15 is Head Constable Samender Singh who proved the copy of FIR no. 108/2004, P.S. Civil Lines U/s 376 IPC registered against the accused as Ex. PW15/A.
18. PW 18 is Women Constable Bharti Devi from Police Control Room who filled up form no.1 of PCR and proved the same as Ex. PW18/A.
19. PW19 is Constable Sudesh Kumar who reached at spot alongwith Inspector Rakesh Kumar and thereafter took the rukka to police station for registration of FIR.
20. PW 21 is Head Constable Naresh Kumar who collected the documents relating to mobile phone number 8826718724 from office of Bharti Airtel Ltd. and handed over the same to IO of the case.
21. PW 24 is Ms. Kavita Goyal, Senior Scientific Officer from FSL, Delhi who examined the exhibits of this case and proved the report as Ex. PW24/A.
22. PW 26 is Ms. Seema Nain, Senior Scientific Officer (Biology ) from FSL, Delhi also examined the exhibits of this case and proved the report as Ex. PW26/A and Ex. PW26/B.
23. PW28 is Constable Amit kumar who took the exhibits with sample seals to FSL, Rohini and deposited the same there. Material Witnesses:
24. PW5 is Ms. Manisha who first saw the dead body of deceased and informed the police on 100 number. She has duly supported the case of prosecution and has also identified the accused present in the court as the same person who was standing at the gate of room of deceased and was not S.C. No.: 40/2011 5/25 allowing anyone to go inside the room.
25. PW17 is Sh. Kishan Lal, husband of deceased who stated that on 31.12.2010, accused came to his house and he alongwith accused had consumed liquor. One Bhola and Ashok Kumar were also with them at his house and after consuming liquor, he alongwith Bhola and Ashok Kumar left the house whereas accused Achey Lal remained at his house alongwith his wife i.e. deceased Smt. Sharda. At about 3 p.m. he came to know that his wife has expired and he identified the dead body of his wife vide statement Ex. PW17/A.
26. PW 20 is ASI Yashwant Singh, PW 22 is Constable Sudhir Singh and PW 23 is SI Bhoopendra Kumar who on receipt of information regarding the incident reached at the spot alongwith other police officials and thereafter joined the investigation of this case alongwith the IO.
27. PW27 is Inspector Rakesh Kumar, IO of the case who conducted the investigation of this case and has proved the memos etc. Medical Witnesses:
28. PW 1 is Dr. S. Lal, Specialist Forensic Medicine from Subzi Mandi Mortuary who conducted postmortem on the dead body of deceased and proved the report as Ex. PW1/A.
29. PW 7 is Dr. Aseem Taneja, CMO from Aruna Asaf Ali Hospital who examined the deceased in casualty and declared her brought dead. She further proved the MLC as Ex. PW7/A.
30. PW16 is Dr. Akash Jhanjee, Specialist Forensic Medicine from Subzi Mandi Mortuary who examined the accused for potency and proved the S.C. No.: 40/2011 6/25 opinion as Ex. PW16/A.
31. PW25 is Dr. Preeti Prabhakar, CMO from Aruna Asaf Ali Hospital who examined the accused and proved the MLC as Ex. PW25/A.
32. Statement of accused U/s 313 Cr.P.C. was recorded wherein he denied the case of prosecution and stated that he is innocent and has been falsely implicated in this case. He further chose not to lead any evidence in defence.
33. I have heard Ld. Counsel for accused as well as Ld. APP for the state and have carefully perused the record.
34. Ld. APP for the state argued that the prosecution has established the chain of circumstances beyond reasonable doubt; the contradictions as pointed out are minor in nature which are liable to be ignored; there is no major discrepancy in the prosecution story and the material witnesses have fully supported the prosecution case and there is nothing in their lengthy crossexamination so as to assail their deposition. Ld. APP for the state vehementally argued that the prosecution has established its case by completing the chain of circumstantial evidence and the evidence on record has nowhere been assailed in any manner therefore, accused be convicted for the offence of murder.
35. On the other hand, Ld. Defence Counsel argued that chain of circumstantial evidence is not complete. There is no last seen evidence and motive of crime is not established by the prosecution. Therefore, the accused is entitled for acquittal.
S.C. No.: 40/2011 7/25 Conclusion:
36. Admittedly there is no eye witness of the present case and entire case rests upon the circumstantial evidence. The law relating to admissibility of circumstantial evidence is very clear and now it has been laid down by various decisions of Hon'ble High Court and Hon'ble Supreme Court again and again that the circumstantial evidence against the accused should not only form a uniform chain but it must only point out towards the guilt of accused and nothing.
37. It has been held in Ramesh Bhai & Anr. Vs. State of Rajasthan 2009 VIII AD (S.C.) 313 that "It has been consistently laid down by this court that where a case rests squarely on circumstantial evidence, the reference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of accused or the guilt of any other person. (See Hukam Singh Vs. State of Rajasthan, AIR 1977 SC 1063, Eraden & Ors. Vs. State of Hyderabad AIR 1956 SC 316, Erabhadrappa Vs. State of Karnataka AIR 1983 SC 446, State of U.P. Vs. Sukhban & Ors. AIR 1985 SC 1224, Balvinder Singh Vs. State of Punjab AIR 1987 SC 350 Ashok Kumar Chatterjee Vs. State of M.P. AIR 1989 SC 1890. 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".
38. The present case of prosecution is also based entirely on the circumstantial evidence as there is no eyewitness to the incident. I have considered the rival submissions made at bar and have carefully gone through the evidence on record. The case of prosecution is based on circumstantial evidence and the prosecution has claimed to have established its case by proving the following circumstances in evidence which form the chain of S.C. No.: 40/2011 8/25 circumstantial evidence:
(i) Last seen evidence.
(ii) Recovery of the dead body of a female. (iii) Recovery of mobile phone in the name of wife of accused from
the spot, presence of accused at the spot and his conduct.
(iv) Condition of dead body, Cause of death and Postmortem Report.
39. In order to prove the guilt of the accused beyond reasonable doubt, it is bounden duty of the prosecution to establish that the circumstances concerned must have been established and the circumstances should be of a conclusive nature excluding every hypothesis except the one that proves the guilt of the accused. It is further required to prove that the chain of circumstantial evidence is complete as not to leave any reasonable ground for the conclusion which is consistent with the innocence of the accused and it must have been shown that in all human probability, the offence must have been committed by the accused.
40. I have closely scrutinized the evidence and the material on record to find out whether the prosecution has succeeded in fulfilling the above requirement and has established its case beyond reasonable doubt.
(i) Last seen evidence:
41. The only witness of last seen evidence in the present case is PW17 Sh. Kishan Lal who is the husband of deceased. He is the only witness who saw the deceased last in the company of accused. He has stated that the accused was working with a tent house as contractor where he used to clean utensils . On 31.12.2010, accused came to his house at about 8 a.m.. Accused S.C. No.: 40/2011 9/25 was carrying one quarter bottle of liquor and he alongwith accused had consumed the said bottle of liquor. He has further stated that one Bhola and Ashok Kumar were also with them at his house and after consuming liquor, he alongwith Bhola and Ashok Kumar left the house whereas accused Achey Lal remained at his house alongwith his wife i.e. deceased Sharda Devi. At about 3 p.m. he came to know that his wife has expired and he identified the dead body of his wife vide statement Ex. PW17/A. The witness in his cross has admitted that he had worked with accused Achey Lal. He has further stated that he had not told the police that he alongwith Bhola, Ashok kumar, Accused and his wife had taken liquor together. The witness in his cross has stated that accused used to come at his house under the influence of liquor and also used to serve him the liquor. He has further stated that accused used to come at his house after every 78 days. Ld. Defence counsel argued that PW17 is even not able to remember the name of his landlord and therefore his testimony cannot be believed. It may be mentioned that the witness when cross examined in the court was aged about 73 years and keeping in view his age, it is possible that the witness might have forgotten the name of his landlord. Moreover in material particulars this witness has supported the case of prosecution that accused came to their house alongwith quarter bottle of liquor and they took the liquor together and after consuming liquor, he alongwith Bhola and Ashok left the house whereas accused remained at his house alongwith his wife i.e. deceased Sharda Devi. Thus, from the testimony of PW17 i.e. husband of deceased it stands proved that the deceased was lastly seen in the company of accused by her husband. No suggestion has been S.C. No.: 40/2011 10/25 given to this witness that accused never came to his house on that day and they did not take liquor together or that after PW17 left the house alongwith Bhola and Ashok, accused did not stay back at the room of deceased alongwith the deceased.
(ii) Recovery of the dead body of a female.
42. In the case in hand PW5 is Ms. Manisha who first discovered the dead body of deceased Smt. Sharda Devi. She has stated that deceased Sharda Devi used to work in different houses in their locality as a maid servant. She was not permanently working as a maid servant in any house and she used to take money from the persons in her neighbourhood and used to say that whenever there is necessity she can be called to work as maid in that house. On 30.12.2010 deceased Sharda Devi had also taken Rs. 20/ from her mother and had told her mother that whenever required she would work as maid at their house. On 31.12.2010 she was at her house as she had fever and her mother had gone to hospital as her brother was admitted in AIIMS hospital. Her mother had told her to call Sharda Devi if required and at about 12.30 p.m. she went to the house of Sharda Devi to call her for work at her house. When she reached there, she saw the door of her house was ajar and there was darkness inside the house. She knocked the door to call Sharda Devi but did not get any response. She waited outside and again knocked and called Sharda Devi as aunty from outside but again she did not get any response. She pushed the door and entered into the room. She went to the place where Sharda Devi was lying on the floor. She thought that Sharda Devi was sleeping and she shook her but Sharda Devi did not respond. When she removed the blanket of Sharda Devi slightly, she found her shirt till neck. S.C. No.: 40/2011 11/25 Thereafter she came out of the room and called the neighbours. On her calling some neighbours came there and she alongwith neighbours were standing outside the house of Sharda Devi. The witness further stated that at that time one person was standing at the gate of the room of Sharda Devi and was not allowing them to go inside. That person told them that Sharda Devi is all right and is sleeping and she is like his mother or sister. Thereafter feeling something suspicious, she called the police on 100 number. In the meanwhile they did not allow that person to go any where and when police came, she handed over that person to the police. Witness pointed out towards the accused present in the court and stated that he is the same person who stopped them from entering into the house of Sharda Devi. She further stated that the police had recorded her statement. She has stated that the accused was under the influence of liquor and she alongwith other neighbours stopped him because he was trying to slip away from there. This witness has been cross examined at length by Ld, defence counsel but nothing material has come out of the cross examination of this witness. The witness does not seem to be a tutored or introduced or stock witness. Her testimony is natural and inspires confidence. She has stated that the house of victim is situated at about 1520 steps away from her house and she does not have any knowledge as to who used to come to the room/house of deceased Sharda Devi. Thereafter in her cross also she has described the whole sequence and has further stated that "
When I reached to the residence/room of victim Sharda and opened the main door for entering, I saw that Sharda alone was lying on the floor of the room. (vol. before entering the same, I knocked the door and call aunti aunti) ".
She has further denied this suggestion that accused came from the public S.C. No.: 40/2011 12/25 persons and was not inside the house of deceased. Let us for argument's sake we assume that the accused was also in public persons and was not inside the room. But still the conduct of accused speaks otherwise. He restrained not only PW5 but also the other neighbours who collected at the spot from going inside the room and stated that Sharda Devi is all right and is sleeping and she is like his mother or sister. If the accused was not present inside the room and was one of the person from the public, then how he came to know that victim Sharda Devi is sleeping and nothing has happened with her, why he also did not try to go inside the room alongwith other public persons and see what has happened to the lady in the room, are not answered by the accused. It may be mentioned that in his statement U/s 313 Cr.P.C. accused has also admitted this fact that he knew Sharda Devi who used to work as maid servant in different houses but she was not permanently working as maid servant in any house and he not only knew Sharda Devi but also her husband Krishan lal. PW5 has denied the suggestion that she did not remove the blanket from the dead body and did not call any neighbours. Even PW5 has very innocently stated that she does not know about the relations between accused and deceased and she did not see the accused visiting the house of victim at any point of time as she is a research scholar and rarely stays at home in the day time. PW5 has stated that she does not have any knowledge about the persons visiting the house of deceased. It is natural for any person and especially for a student to have no knowledge as to who visits the house of his/her neighbours or the maid servant. Testimony of PW5 inspires confidence and she does not seem to be a tutored witness. Rather she seems to be truthful S.C. No.: 40/2011 13/25 witness who has deposed whatever she had seen at the place of incident. Thus, from the testimony of PW5 it stands proved that the dead body of deceased was first discovered by PW5 and when she saw the dead body, she found the shirt of deceased till neck and the dead body was covered with a blanket.
43. PW10 is Sh. Raja Ram, landlord of the house no. L11, Majnu Ka Tila, Civil Lines, Delhi where deceased Sharda Devi was residing as tenant alongwith her husband. He has stated that he let out one room at ground floor to Smt. Sharda who used to work in the nearby houses as maid and Sharda Devi and her husband used to drink alcohol sometime. He has further stated that on 31.12.2010 in the morning at about 10 a.m. Sharda Devi came to him for taking kerosene oil and he gave her the kerosene oil. He has further stated that his statements Ex. PW10/A and Ex. PW10/B were also recorded by the IO which are correct. Nothing material has come out of the cross examination of this witness.
44. PW17, husband of deceased has also stated that on 31.12.2010 accused came to his house at about 8 a.m. and he was carrying one quarter bottle of liquor and thereafter they both consumed the liquor together. PW5 also has stated that accused was under the influence of liquor and was not allowing anyone to enter into the room of deceased. From the testimony of PW17, it is clear that accused and PW17 took the liquor together and from the testimony of PW5 it is clear that accused was under the influence of liquor when he was standing outside the gate of room. Though PW17 has stated that his wife did not take liquor with them but PW10 who is the landlord of S.C. No.: 40/2011 14/25 deceased has also stated that deceased alongwith her husband used to take liquor. Accused in his statement U/s 313 Cr.P.C. has also stated that in answer to the question no. 10 that he used to come to the house of PW17 for the purpose of calling him for the work and both Krishan lal and deceased Sharda Devi used to drink and he also used to drink but not with them. From the FSL report proved on record as Ex. PW24/A, the blood sample of deceased contained ethyl alcohol 732.4 mg/100 of blood and even stomach and piece of small intestine, lever, spleen and kidney of deceased were also found to contain ethyl alcohol. This fact also stands proved that deceased used to take liquor and when she died before that also she had taken liquor. Though her husband PW17 has denied this fact that deceased took liquor with them but the FSL report Ex. PW24/A speaks otherwise.
(iii) Recovery of mobile phone in the name of wife of accused from the spot , Presence of accused at the spot and his conduct.
45. PW5 Manisha has stated that at the time the dead body was discovered, accused was standing at the gate of room of deceased and was not allowing anyone to go inside the room . She has stated that accused also tried to slip away from there but she alongwith other neighbours restrained the accused and thereafter handed over him to the police. For the sake of repetition it may be mentioned that from the testimony of PW17 it already stands proved that accused came to the house of deceased on 31.12.2010 at about 8 a.m. who was carrying a bottle of liquor and they took the liquor together and thereafter PW17 alongwith Bhola and Ashok left the room but the deceased and accused stayed back at the room of deceased. Thus, not only PW5 has stated that accused was standing outside the gate of room of S.C. No.: 40/2011 15/25 deceased and was not allowing them to go inside the room but PW17 i.e. husband of deceased has also stated that after consuming liquor, he alongiwth Bhola and Ashok left the room but accused remained at his house alongwith his deceased wife. The presence of accused at the spot has also been proved by the fact that the mobile phone belonging to accused's wife was found near the dead body of deceased. As per the case of prosecution, a mobile phone make Nokia was found near the dead body of deceased. The number of said mobile phone is 8826718724 and during investigation it transpired that the mobile phone is in the name of wife of accused. The witness examined by the prosecution in this regard is PW11 Sh. Vishal Gaurav, Nodal Officer from Bharti Airtel Ltd. who brought the summoned record pertaining to mobile no. 8826718724 and stated that this number is in the name of Maneshwari W/o Achey lal R/o 3, Atur Rehman Lane, Under Hill Road, Civil Lines, Delhi. He has further proved the certified copy of customer application form as Ex. PW11/A, the photocopy of election identity card as Ex. PW11/B, the call details of said mobile no. as Ex. PW11/D and cell ID location of mobile no. 8826718724 as Ex. PW11/E. He has also proved the certificate U/s 65 B of Evidence Act as Ex. PW11/F. This witness in his cross has admitted that the call details of this mobile number relating to 31.12.2010 are only incoming calls on this phone number . So far as the incoming calls are concerned, then whether the calls were incoming or outgoing the fact remains that it shows the site of mobile tower at Majnu Ka Tila, B.D. Estate, . Both the cell phone towers are near the place of incident i.e. Aruna Nagar, Majnu Ka Tila . Thus, the details regarding mobile phone recovered from the spot have been duly proved by the prosecution as per the provisions of section 65 B of Evidence S.C. No.: 40/2011 16/25 Act and even the certificate in this regard has also been duly proved. No suggestion has been given to this witness that the mobile phone does not belong to wife of accused or that the location of the mobile number during the time of incident is incorrect . All the police officials who joined the IO during the investigation have stated about the recovery of this mobile phone from near the dead body of deceased. Even no suggestion has been given to them that no such mobile phone was found near the dead body or that same has been planted lateron upon the accused.
46. Ld. Defence counsel argued that though many public persons were present at the time when the articles near the dead body were seized but not a single public witness has been joined as witness in the present case by the police officials . So far as the non joining of independent public witnesses are concerned, then it is of common knowledge that now a days in city like Delhi though a crowd collects at the spot whenever an incident takes place but hardly any one is willing to join the investigation especially in a murder case for the fear of police or court rounds and present case is also no exception to this rule. Therefore if the IO did not get any other independent public witness in this case then no adverse inference for the same can be drawn when PW5 Manisha has duly stated about the condition of dead body and presence of accused at the spot in her testimony. A suggestion has been given to the IO that Manisha has been implanted as witness and she has no knowledge of the incident. But no such suggestion has been given to PW5.
47. Moreover one more suggestion has been given to the IO during his cross that accused was present with the IO since 11 a.m. till night. But S.C. No.: 40/2011 17/25 accused in his statement has taken a contradictory plea wherein he has stated that he was not present at the spot and Krishan Lal i.e. husband of the deceased came to his house and told him that his wife is not well . Krishan Lal asked money from him but he did not give the money and told Krishan Lal that he would go to his house with him . Accused has further stated that there was some other person alongwith Krishan lal and both of them brought the accused to police station and in the police station at about 8.30 p.m. he was made to drink liquor and thereafter he was taken for medical examination. This answer given by the accused himself is contradictory . He has first stated that Krishan Lal came to his house at about 10.15 p.m. and thereafter he stated that in the police station at about 8.30 p.m. he was made to drink liquor. If the accused was taken by Krishan Lal and some unknown person to the police station after 10.15 p.m. then how the police can administer liquor to him at 8.30 p.m. is not explained by the accused.
48. Accused in a way has tried to denied his presence at the spot but no such suggestion has been given by the accused during the cross examination of PW5 or PW17 or during the cross examination of IO and other police officials who reached at the spot on receipt of information and were with the IO during the investigation of this case. Even no suggestion has been given to PW17 Krishan Lal that he went to the house of accused and thereafter brought the accused to police station.
49. Accused in his statement has admitted that this mobile phone number is in the name of his wife but he has stated that his mobile phone was taken away by the police when he was brought to the police station and later S.C. No.: 40/2011 18/25 on same was implanted upon him in this case. It is very strange that accused's mobile phone was also taken away by the police and he was falsely implicated in a murder case but still till date neither the accused nor his other family members have made any complaint regarding false implication of accused in this case to any of the higher authorities.
50. Moreover PW5 in her cross has stated that the street in which house of deceased is situated is quite narrow and hardly one person can pass through it and in this street, only the house of deceased Sharda Devi has its exit and no other house has its exit on this street. Thus, it is clear that no other house has its exit in that street and therefore no person from other house can come into the street and only person who has to enter into the room of deceased or to come out of the room of deceased will have to access that street only.
(v) Condition of Dead Body, Cause of death and Postmortem Report.
51. PW 5 is the witness who first saw the dead body of deceased . She has stated that she pushed the door and entered into the room where the deceased was lying on the floor . She thought that deceased was sleeping and thereafter she shook her but when the deceased did not respond, she removed her blanket slightly. She found the shirt of deceased till neck and she pulled down the shirt slightly. From the testimony of PW5 it is clear that PW5 when first saw the dead body , she saw her shirt till neck and feeling something foul, she came out of the room and called the neighbours. In the meanwhile accused who was standing on the gate of the room of Sharda Devi did not allow PW5 or other neighbours to go inside.
S.C. No.: 40/2011 19/25
52. PW19 is Constable Sudesh Kumar who alongwith the IO Inspector Rakesh Kumar went to house no. L11, Majnu Ka Tila, Delhi and met SI Bhupender, ASI Yashwant , Constable Sudhir and Lady constable Rekha. PW19 has stated that they noticed dead body of a woman which was lying on the floor and the dead body was covered with one blanket from above the stomach and one salwar and inner were lying at the spot near the dead body. PW20 ASI Yashwant Singh has also deposed on the lines of PW19 in his examination in chief. PW22 is Constable sudhir who has also stated that dead body of a female was lying on the bedding on the floor and it was covered upto chest and she was naked below the stomach. Her clothes i.e salwar and inner were also lying near her foot. PW23 SI Bhoopendra Kumar has also given the same description of the dead body which was lying naked below her neck and there was no visible injury on the body and one salwar and woolen inner were also lying on the side of her legs. Similarly PW27 Inspector Rakesh Kumar who is the IO of the case has stated that the female was naked from breast to her feet. Neither during the cross of PW19 any such suggestion regarding the condition of dead body has been put nor any suggestion has been given to PW19 that the dead body was not naked below the neck or that no salwar or inner was lying near the dead body. Similarly during the cross of PW20 no such suggestion has been given by the accused. PW20 has stated that a muffler was also lying on the private parts of deceased but not only PW20 but also neither PW22, PW23 nor the IO have been cross examined by accused regarding the condition of dead body when it was found. Though PW5 has not stated directly that the dead body was naked below but all the police officials who after receipt of the call reached at the S.C. No.: 40/2011 20/25 place of incident and found the dead body have stated that she was naked below her stomach and none of the police officials in this regard have been cross examined by the accused and their testimony in this regard have gone unrebutted and unchallenged. From the testimony of all these witnesses, it stands proved that the dead body was naked below her stomach and her clothes i.e. salwar and inner were also lying near her foot.
53. The postmortem report which has been proved on record as Ex. PW1/A talks of antermortem injuries like reddish abrasion 1.0 x 0.5 cm over anterior aspect of vagina just above clitorius and multiple reddish bruise in and around the vaginal orifices, on inner mucosa with mild bleeding and the cause of death as given by the doctor is asphyxia due to aspiration of gastric contents consequent upon forceful sexual intercourse and sufficient to cause death in ordinary course of nature which shows that the deceased was subjected to forceful sexual intercourse.
54. As per the postmortem report, all the injuries were antermotem in nature and recent in duration and injuries present in and around the vagina indicate sexual assault/intercourse before death. Ld. APP for the state argued that the deceased was forced for sexual intercourse and since the deceased was around 65/70 years of age, when the accused committed forceful sexual intercourse upon her then in order to save herself, though she was under the influence of liquor, she must have tried to shout and it seems that in order to prevent her from shouting or crying for help, accused put his palm upon the mouth of deceased so forcefully that it resulted in her death. The cause of death is asphyxia due to aspiration of gastric contents consequent upon S.C. No.: 40/2011 21/25 forceful sexual intercourse and sufficient to cause death in ordinary course of nature . Keeping in view the cause of death as proved on record by the prosecution, the submission of Ld. APP for the state bears force and cannot be ignored. During the cross, PW1 has admitted that the lungs were congested because of food i.e. gastric contents and it happened due to forceful sexual intercourse. PW1 has further stated that it is not possible for normal individual to aspirate the gastric contents. He has further stated that it is not possible for a normal healthy person that by overeating only gastric contents will enter into his/her lungs and the other body parts and even during the old age it is not possible. Even PW1 has denied that this condition can be provoked by self exercise in normal circumstances . In the postmortem report Ex. PW1/A, it is clearly mentioned that injuries present in and around the vagina indicate sexual intercourse/assault before death. Thus, from the postmortem report of deceased proved on record by the prosecution beyond reasonable doubt and from the condition of dead body as was found by PW5 and other police officials, it is clear that the deceased was subjected to forceful sexual intercourse as a result of which she died due to asphyxia due to aspiration of gastric contents.
55. Ld. Defence counsel argued that PW7 who examined the deceased has opined that no external injuries were seen . It may be mentioned that PW7 is only Casualty Medical Officer who had examined the patient in OPD only and therefore there was no occasion for him to examine the private parts of deceased who was a female.
56. PW 16 is Dr. Akash Jhanjee, Specialist Forensic Medicine from S.C. No.: 40/2011 22/25 Subzi Mandi Mortuary who has proved the potency report of accused vide MLC Ex. PW16/A and has opined that there is nothing to suggest that the person examined is not capable of performing sexual intercourse. The testimony of PW16 has gone unrebutted and unchallenged.
57. PW26 is Dr. Seema Nain, Senior Scientific Officer from FSL, Delhi who has duly proved the FSL reports as Ex. PW26/A and Ex. PW26/B. As per the FSL report, human semen was detected on Ex. 1a, 1b and 6. Ex. 1a and 1b are salwar and wollen payjama of deceased which were recovered from the spot and Ex. 6 is dirty underwear of accused. Though regarding blood group, report Ex. PW26/B is silent as Ex. 1a, 1b and 6 gave no reaction but presence of human semen on the clothes of deceased as well as of accused also shows that the deceased was subjected to sexual intercourse. In the cross of PW26 she has stated that semen may or may not be detected on the clothes if they are washed after the incident. But in the present case there is no evidence on record that the clothes of accused or of deceased were washed after the incident.
58. Accused was caught at the spot only and the clothes of deceased were recovered near her dead body. Though the deceased was a married lady aged around 65/70 years and must be habitual to sexual intercourse but the presence of human semen on her clothes immediately before her death and also on the clothes of accused coupled with the injuries found on the private parts of deceased as well as the condition of dead body shows that the deceased was subjected to forcible sexual intercourse.
59. The other witness examined by the prosecution are the link witnesses who joined the investigation of the case at different stages and have S.C. No.: 40/2011 23/25 completed the chain of evidence and nothing material has come out of their cross examination.
60. As regarding defence, accused has not lead any evidence in his defence . In his statement U/s 313 Cr.P.C. accused has stated that he was not present at the spot and the mobile phone of his wife was also snatched by the police from him and later on same has been implanted at the spot. But accused has not led any evidence to substantiate his claim. No doubt in a criminal case, it is for the prosecution to prove its case against the accused beyond reasonable doubt but at the same time if accused is making some averments then it is for him to prove the same which he has failed to prove.
61. It has been held in Bhagat Ram Vs. State of Punjab AIR 1954 SC 621 that "Where the case depends upon the conclusion drawn from circumstances the cumulative effect of circumstances must be such as to negative the innocence of the accused and bring the offence home beyond any reasonable doubt".
62. It has been further held in C. Chenya Reddy & Ors. Vs. State of A.P. 1996 (10) SCC 193 that "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......"
63. In the case in hand also, the chain of all circumstantial evidence is S.C. No.: 40/2011 24/25 complete, there is no gap left in the chain of circumstantial evidence and the cumulative effect of circumstances proved on record by the prosecution points out towards the guilt of accused only.
64. In view of the abovesaid discussion, prosecution has been fully able to prove its case against the accused beyond reasonable doubt. As such, accused is held guilty and convicted for the offence U/s 376/302 of IPC.
(MADHU JAIN) Additional Sessions Judge01 (North) Tis Hazari Courts, Delhi Announced in the open court today i.e. on 27.09.2011 S.C. No.: 40/2011 25/25