Delhi District Court
State vs . on 25 May, 2022
1
IN THE COURT OF MS. KIRAN GUPTA: ADDITIONAL
SESSIONS JUDGE - 03 : NORTH WEST DISTRICT :
ROHINI : DELHI
SC NO. 13/16
FIR NO. 485/16
PS Ashok Vihar
U/s. 302 IPC
State
Vs.
Ashish Kumar
CNR NO. 02404R009714016
(a) Session Case 13/16
No.
(b) Date of offence 11.09.2015
(c) Accused Ashish S/o Rajpal R/o WP-183, Village
Wazirpur, Ashok Vihar, Delhi.
(d) Offence U/s. 302 IPC
(e) Plea of accused Pleaded not guilty
(f) Final Order Accused is convicted for the offence
u/s. 302 IPC
(g) Date of 29.03.2016
institution
(h) Date when 17.05.2022
judgment was
reserved
(I) Date of 25.05.2022
judgment
Digitally
signed by
KIRAN KIRAN GUPTA
Date:
GUPTA 2022.05.25
16:06:27
+0530
State Vs. Ashish Kumar Page no. 1 of 43
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JUDGMENT
1. The accused is facing trial for the offence U/s. 302 IPC for the murder of his own wife.
BRIEF FACTS
2. The case of prosecution is that the accused committed murder of his wife Jyoti by cutting the wrist of her left hand. The present FIR was lodged on the basis of the statement of Smt. Rani, mother of deceased Jyoti. She gave the statement that her daughter Jyoti married accused Ashish around 6-7 years back. It was a love marriage. Earlier they were living at village. 3-4 months before the incident, they shifted at WP-1183, Second Floor, Delhi in a rented accommodation. Jyoti and Ashish had two sons and one daughter aged 5 years, 2 years and 1 year. Ashish was in the habit of taking drugs. He used to sell vegetables on rehdi. He used to fight regularly with her daughter Jyoti and suspected on her character. Jyoti came to her house on 10.09.2015 and told her that Ashish fights with her and one day he would kill her. She sent her back after consoling. On 11.09.2015, Jyoti again came to her house at 6 am and told her that Ashish fought with her for the whole night. She asked for milk for the children. At around 5:45 pm on 11.09.2015, her neighbor told her that children of Jyoti are crying and that the Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2022.05.25 State Vs. Ashish Kumar 16:06:34 +0530 Page no. 2 of 43 3 light of her house is off. When she went to the house of Jyoti, she saw that her children were crying and Jyoti was lying on the floor and was drenched with blood. Her son Vanshu told her that their parents had fight and his father caused injury on the hand of his mother with knife. She alleged that Ashish had murdered his wife. Accordingly, FIR u/S. 302 IPC was lodged. After investigation, chargesheet was filed against accused u/s 302 IPC.
CHARGE
3. After hearing arguments on the point of charge and finding a prima facie case against the accused persons, requisite charge U/s. 302 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. In support of its case, the prosecution has examined as many as 30 witnesses. The witnesses so examined by the prosecution can be categorized in the following manner:
FORMAL WITNESSES
5. PW10 Parvesh Kumar Lakra, Ex. Magistrate deposed that on 12.09.2015, on the direction of SDM, he reached Digitally signed by KIRAN KIRAN GUPTA Date:
State Vs. Ashish Kumar GUPTA 2022.05.25 16:06:40 Page no. 3 of 43 +0530 4 mortuary, BJRM hospital and met IO Inspector Sanjeev Arora. He introduced him to lady Rani. He recorded her statement Ex.PW10/A. He also met child namely Vansh who was the son of deceased Jyoti. On inquiry from the child, he informed him that a scuffle between his mother Jyoti and father had taken place. He also stated that his father had given a blow of kachu (knife) on the hand of his mother. He recorded the inquiry made by child as Ex.PW10/B. He directed the SHO to take necessary action vide endorsement Ex.PW10/C. 5.1. PW9 Ms. Susheel Bala Dagar, the concerned MM recorded the statement of child Vansh U/s. 164 Cr.P.C. She proved the application of the IO as Ex.PW9/A , statement of IO as PW9./B, the list of questions put to the child witness as Ex.PW9/C and his statement as Ex.PW9/D. She proved the certificate as Ex.PW9/E and the entire proceedings as Ex.PW9/F (colly). The application of the IO for copy of proceedings as Ex.PW9/G. 5.2. PW8 Sh. Bhagwat deposed that he is the registered owner of property no WP-183, Wazirpur Village, Delhi. This property was let out by him to different tenants. A room on the second floor was let by him to Ashish who used to reside with his wife and three children. He deposed that wife of Ashish was murdered in this room itself. He deposed that he came to know Digitally signed by KIRAN KIRAN GUPTA State Vs. Ashish Kumar GUPTA Date:
2022.05.25 Page no. 4 of 43 16:06:45 +0530 5 that Ashish has been arrested by the police.
5.3. PW7 Pawan Singh, Nodal officer, Idea Cellular proved the letter received from Delhi Police Ex.PW7/A for providing the details of mobile SIM no. 9088144711. He produced the call details for the period 19.10.2015 to 18.11.2015 Ex.PW7/B and Certificate U/s 65B of Indian Evidence Act Ex.PW7/C. MEDICAL EVIDENCE
6. PW11 Dr. Anshul Saxena deposed that on 12.09.2015, he conducted the postmortem of deceased Jyoti. He found following external injuries on her body:
I. Incised wound , measuring 5 x 01. cm. was present over the front of the left forearm, cutting underlying tendons, muscles and vessels, being situated 1.8 cm above the left wrist.
2. Contusion, bluish in colour, measuring 4 x.1.5 c.m. was present over the inner aspect of the right arm, situated 1 cm below the elbow.
He proved the postmortem report as Ex.PW11/A. He deposed that on 08.02.2016, IO filed application regarding Digitally signed by KIRAN KIRAN GUPTA State Vs. Ashish Kumar GUPTA Date: Page no. 5 of 43 2022.05.25 16:06:51 +0530 6 opinion on the weapon of offence. He proved the photograph of the weapon of offence i.e. knife as Ex.PW11/B and his subsequent opinion as Ex.PW11/C. 6.1. PW 25 Dr. Amita Raghav, proved the FSL report dated 05.06.2018 as Ex.PW25/1, report dated 30.12.2016 as Ex.PW25/2 and the serology report as Ex.PW25/3. She deposed that in her report Ex.PW25/1, she made note that DNA profile generated from the source of Ex.P1 i.e. knife is preserved in the laboratory for future reference and requested to the IO to re- submit exhibits for DNA comparison with the said knife. Subsequently she did not receive the aforesaid exhibits as requested.
POLICE WITNESSES
7. PW1 HC Anil Kumar is the duty officer who proved the endorsement on rukka Ex.PW1/A, registration of the FIR as Ex.PW1/B, and certificate u/S 65-B Indian Evidence Act as Ex.PW1/C. He also proved copy of DD no.25A as Ex.PW1/D. He proved photocopy of DD no.26 as Ex.PW1/E and true copy of same as Ex.PW1/E1.
7.1. PW4 SI Sandeep proved the crime team report as Digitally signed by KIRAN KIRAN GUPTA State Vs. Ashish Kumar GUPTA Date:
2022.05.25 Page no. 6 of 43 16:06:57 +0530 7 Ex.PW4/A. The photographs of the deceased and the spot as Mark PW4/A 1 to PW4/A10 7.2. PW5 Retired HC Ram Kumar deposed that on 11.09.2015, he was posted at PCR, NW Zone. At about 6.17 p.m, he received information on wireless set that 'caller kah raha hai ki yahan par lady ka murder ho gya hai'. After receiving the information, he reached at the spot. At the room situated at the second floor of that premises, he found a lady lying on the floor in dead condition. He found injury marks on the wrist of the left hand of the deceased and that the vein of left hand wrist was having cut marks. The lady was lying in pool of blood. He guarded the spot and in the meanwhile SI Vikas alongwith local police and SHO PS Ashok Vihar came at the spot. He handed over the spot to SI Vikas and left from there.
7.3. PW6 Ct. Ravinder Kumar delivered the copy of the FIR to the Ilaka magistrate, Joint CP, ACP and DCP on 11.09.2015 at about 10.15 p.m. 7.4. PW12 HC Ashok deposed that on 11.02.2016, on the direction of the IO, he took one pullanda bearing seal of BJRM hospital alongwith one sample seal from the malkhana and deposited the same in FSL Rohini. After depositing the same in the malkhana, he brought the receipt and deposited the same in Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
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malkhana.
7.5. PW13 SI Sandeep proved the arrest memo and personal search memo of accused as Ex.PW13/1 and Ex.PW13/2 , his disclosure statement as Ex.PW13/3. The seizure memo vide which the mobile phone recovered from the possession of accused was seized as Ex.PW13/4.
7.6. PW15 lady Ct. Renu Malik and PW22 SI Vikas PW15 and PW22 deposed that on 11.09.2015, on receipt of information vide DD no. 21A regarding some murder, they along with HC Subhash and Ct. Mukesh went to the spot i.e. WP-
183, 2nd Floor, Wazirpur village Delhi. Large crowd was found present there. Upon entering a room in the house, they saw one lady Rani present there. She was sitting on the floor with children and dead body of a female was lying there. The dead body was of Jyoti. Rani disclosed that the body was of her daughter Jyoti. On checking it was found that the lady had already died. There was a cut mark on left hand wrist of the body. Crime team was called to the spot. The spot was photographed and dead body was sent to BJRM hospital mortuary under custody of Ct. Mukesh. PW22 SI Vikas prepared the rukka Ex.PW22/2 on basis of statement of Rani Ex.PW22/1 and rukka was handed over to PW15 Ct. Renu for registration of FIR. PW15 brought back the copy of FIR and Digitally signed by KIRAN KIRAN GUPTA State Vs. Ashish Kumar GUPTA Date:
2022.05.25 Page no. 8 of 43 16:07:08 +0530 9 the rukka and handed over same to Insp. Sanjeev who had already reached the spot. PW22 further deposed that a jeans pant and baniyan was found at the spot, which was seized vide memo Ex.PW14/3. The blood stained concrete earth control and sample of blood in gauze was picked from the spot vide memo Ex.PW14/4 to Ex.PW14/6.
7.7. PW16 ASI Surya Kant. He deposed that on 12.09.2015, he accompanied Inspector Sanjeev Arora to BJRM Hospital for postmortem of deceased Jyoti. After PM was conducted, concerned doctor handed over four pulandas duly sealed with seal of BJRM alongwith two sample seals to him. He handed over the same to Inspector Sanjeev Arora vide memo Ex.PW16/1. The dead body was handed over to the family members of the deceased and the pulandas were deposited in the maalkhana.
7.8. PW-17 : ASI Karambir, PW 18 Ct. Naval, PW24 HC Mukesh, PW26 Ct. Mohan Lal and PW12 Ct. Ashok PW 17 deposed that on 12.09.2015, he was posted as MHCM PS Ashok Vihar. On that day Insp. Sanjeev Arora deposited with him 6 sealed pullandas which were deposited in the malkhana vide entry no. 3295 of malkhana register Ex.PW17/1. On 17.11.15 Insp. Sanjeev deposited with him one Digitally signed by KIRAN KIRAN GUPTA State Vs. Ashish Kumar GUPTA Date:
2022.05.25 Page no. 9 of 43 16:07:14 +0530 10 sealed pullanda which was deposited in the malkhana vide entry no. 3377 Ex.PW17/2. On 19.11.15 Insp. Sanjeev deposited with him one sealed pullanda which was deposited in the malkhana vide entry no. 3378 Ex.PW17/3. On 16.11.15 one sealed viscera box along with sample seal was sent to FSL Rohini through PW24 HC Mukesh vide road certificate no. 89 Ex.PW17/4. After depositing the same in FSL, PW24 HC Mukesh deposited back with him the receipt Ex.PW17/5. On 27.11.15 six sealed pullandas along with sample seal were sent to FSL Rohini through PW26 Ct. Mohan Lal vide road certificate no. 92/21 Ex.PW17/6. After depositing the same in FSL, PW26 Ct. Mohan Lal deposited back with him the receipt Ex.PW17/7. On 08.02.16 one sealed pullanda was sent to BJRM hospital through PW18 Ct. Naval vide road certificate no. 117/21 Ex.PW17/8. On 11.02.16 one sealed pullanda along with sample seal was sent to FSL Rohini through PW12 Ct. Ashok Kumar vide road certificate no. 118/16 Ex.PW17/9. After depositing the same in FSL, PW12 Ct. Ashok Kumar deposited back with him the receipt Ex.PW17/10.
7.9. PW19 Inspector Mahesh Kumar proved the scaled site plan Ex.PW19/1.
7.10. PW20 Ct. Bir Singh deposed that on 19.11.2015, he joined the investigation of the case with the IO. Accused Ashish Digitally signed by KIRAN KIRAN GUPTA State Vs. Ashish Kumar GUPTA Date:
2022.05.25 Page no. 10 of 43 16:07:20 +0530 11 was taken out from lockup and he took police party to Thiman Singh Park which is across the road from Wazirpur Village. At instance of accused, bushes around the spot were checked and accused got recovered one knife from there. He proved the sketch of the knife as Ex.PW20/1 and the seizure memo vide which the same was seized as Ex.PW20/2. After medical of accused, he was produced in the court. He identified the knife as Ex.PK. During his cross examination, he deposed that it was a big park. Public persons were roaming in the park. Bushes from where the knife was recovered were at a distance of about 100 mts from gate of the park. The bushes were towards side of walking track. No public person collected at the spot while proceedings were conducted. No public person was called to join the proceedings. He admitted the suggestion that similar knives are easily available in the market. He deposed that knife was picked from the bushes by the IO with hand. He does not remember, if, IO had taken any photograph regarding recovery of knife. He is not aware as to whether or not knife was sent to any finger print expert.
7.11. PW21 ASI Subhash Chand deposed that on 11.09.2015 at about 6:20 pm on receipt of DD no. 21/A, he alongwith SI Vikas, Ct. Mukesh and L/Ct. Renu went to the spot, where they found dead body of a lady on floor. On search of the room by the IO, a blood stained baniyan and pant were found Digitally signed by KIRAN KIRAN GUPTA Date:
State Vs. Ashish Kumar GUPTA 2022.05.25 16:07:25 Page no. 11 of 43 +0530 12 lying in the room. The same were converted into pulanda Ex.PW14/3. The dead body was sent to BJRM Hospital and FIR was got lodged through Ct. Renu. The IO seized the blood sample gauze, piece of blood stained concrete and earth control concrete in three plastic dibbis, which were seized vide memo Ex.PW14/4 to Ex.PW14/6. IO left with him and SI Vikas in search of accused. They searched him at Kashmere Gate, ISBT, ODRS and NDRS but he could not be found. On 17.11.2015, he again joined investigation of the case alongwith SI Sandeep. SI Sandeep informed him that location of mobile phone of accused is at Jadhpur, Meethapur, near Faridabad Border. They both went there in a private car. They were carrying photograph of accused Ashish with them. During search they stood near theka sharab. A person was found there. SI Sandeep identified him as Ashish from photograph. He was overpowered and apprehended and brought to PS Ashok Vihar. He was arrested vide memo Ex.PW13/1, his personal search was conducted vide memo Ex.PW13/2 and his disclosure statement Ex.PW13/3 was recorded. A blue color diamond phone was recovered from his possession which was seized vide memo Ex.PW13/4. On 18.11.2015 the pointing out memo of the spot of incident Ex.PW13/5 was prepared. He identified the clothes as Ex.P1 and the mobile phone also as Ex.P1.
He during his cross examination admitted that there were Digitally signed by KIRAN KIRAN GUPTA Date:
State Vs. Ashish Kumar GUPTA 2022.05.25 16:07:31 Page no. 12 of 43 +0530 13 many tenants in the house. Accused had only one room under his tenancy, where he used to reside with his wife and children. He did not come to know, if, any Madan also used to reside in that room. IO did not record statements of the persons who had collected on the second floor of the house. There was only one door of the room in which dead body was lying. He deposed that it was Rani who told them that the recovered pant was of Ashish.
7.12. PW23 ASI Sakambar proved the DD No. 21A and 23A both dated 11.09.2015 as Ex.PW23/1 and Ex.PW23/2 respectively.
7.13. PW27 Inspector Sanjeev Arora deposed that on 11.09.2015 further investigation of the case was marked to him.
He collected the case file and relevant documents from SI Vikas at the spot. He prepared the site plan Ex.PW27/C at the instance of complainant who was present at the spot. He recovered one jeans pant and vest at the spot vide Ex.PW14/3. He seized the blood sample gauze, piece of blood stained concrete and earth control concrete in three plastic dibbis vide memo Ex.PW14/4 to Ex.PW14/6. He recorded the statement of Sunita Ex.PW2/A, Bhagpat Ex.PW8/A and Vanshu (aged about 5 years) and other police officials. He got conducted the postmortem of the deceased vide application Ex.PW27/E. He proved the form regarding death report as Ex.PW27/F. On 12.09.2015 after Digitally signed by KIRAN KIRAN GUPTA State Vs. Ashish Kumar GUPTA Date:
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postmortem of the dead body, he handed it over to the family members of deceased. He proved the identification memo as Ex.PW14/1 and Ex.PW27/A and the handing over memo of dead body as Ex.PW14/2. He seized the sealed pulandas handed over by the doctor vide memo Ex.PW16/1. He got recorded the statement of Vanshu u/S. 164 Cr.P.C Ex.PW9/A on 16.09.2015 vide application Ex. PW-9/C. He deposed that on 03.11.2015 complainant came to police station and told him that accused Ashish had called on her mobile bearing no. 81030886406 from his mobile number 9088144711 on 01.11.2015 and 02.11.2015 and was requesting her to get in touch with his children. He sent request for CDR details of the mobile phone of accused bearing no. 9088144711. He recorded the supplementary statement of complainant Rani. On 17.11.2015, location of mobile phone of accused Ashish was found at Ismilepur, Faridabad, Haryana and Jaidpur, Delhi. He sent SI Sandeep and HC Subhash to Jaidpur and Ismilepur, where he was apprehended by them and thereafter, arrested vide memo Ex.PW13/1 and Ex.PW13/2. He gave disclosure statement Ex.PW13/3. The mobile phone was recovered from his possession vide memo Ex.PW13/4. The pointing out memo Ex.PW13/5 was prepared at his instance. He got recovered one knife i.e. weapon of offence of secluded bushes of Khiman Singh Park which was seized vide memo Ex.PW20/2. The sketch of knife is Ex.PW20/1. He proved the application regarding one day PC of accused as Ex.PW27/G and Digitally signed by KIRAN KIRAN GUPTA State Vs. Ashish Kumar GUPTA Date:
2022.05.25 Page no. 14 of 43 16:07:42 +0530 15 the order of ld. MM as Ex.PW27/H. He carried out the investigation and after completion of investigation, filed the chargesheet before ld. MM. He identified the case properties as Ex.P1 to Ex.P5. He deposed that he deposited the FSL result in the court vide application Ex.PW27/B 7.14. PW-28 Ct. Amit Mavi deposed that on 12.09.2015, at about 4:10 pm, he recorded the arrival entry of Ct. Ravinder who had delivered the copy of FIR at the residence of Joint CP, DCP North-West and Ld. CMM in register no. B at serial no. 4 Ex. PW-28/A. 7.15. PW-29-ASI Mukesh Sharma and PW30 Inspector Devender PW29 deposed that on On 11.09.2015, he was working at Channel no. 119 at CPCR PHQ Delhi. On that day, at about 6:10 pm, he received one call at 100 number on channel no. 119 and the caller disclosed that murder of a lady has been committed at WP-183 near Chaupal Bhagwat ka makan, Wazirpur. The name and the address of the caller is automatically displayed on the screen of the computer and name Udai Chander Rai and address H.No. 30, Sawan Park, Ashok Vihar, Delhi was displayed on the screen while attending abovesaid call. He fed the information in Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
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the computer and forwarded the information to communication staff. PW30 Insp. Devender deposed that on 21.12.2015 he was posted as Nodal officer, CPCR PHQ on that day on request of the IO, he took out print out of the call Ex.PW30/A. He proved the certificate u/S. 65-B IEA as Ex.PW30/B. MATERIAL WITNESSES
8. PW2 Smt. Sunita deposed that Rani/ deceased was tenant in the premises where she is residing. In her presence, Jyoti had never visited the house of Rani to meet her. She does not remember the date when she saw a lady coming from the side of the house where Jyoti used to reside with her husband and kids. The said lady met her when she was going to throw the garbage at MCD dustbin. The said lady was telling mother of Jyoti namely Rani that she had heard the crying noises of the children coming from the house where Jyoti used to reside. She overheard this fact. Rani then told her to accompany her to the house of Jyoti to find out what the matter is. On reaching there, they found Jyoti lying dead on her bed and her children were crying. The residents of the locality also gathered. Mother of Jyoti called at number 100. She was cross-examined by the Ld. APP. She denied all the suggestions put forth by Ld. APP. During her cross-examination by Ld. Defence Counsel, she deposed that police had not recorded her statement Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
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8.1. PW3 Vansh is the son of deceased and accused. PW14 Rani is the mother of the deceased. Since, they are material witnesses, their testimony in detail shall be discussed in the later part of the judgment.
STATEMENT OF ACCUSED
9. After completion of prosecution evidence , all the incriminating material available on record was put to the accused under Section 313 Cr.PC. He pleaded innocence and stated that he has no role in murder of his wife to whom he was looking properly and taking care of. He stated that Madan who had enmity with him had threatened him that he would settle the score with him and his family members. Madan was seen coming out of his house on 11.09.2015 as told to him by his well wishers. He was not present at the house. When he reached at the house, his child had been tutored by his mother in law who always took side with Madan and taunted him that he was not looking after her daughter. He did not examine any person in support of his defence.
Digitally signed by KIRAN KIRAN GUPTA
GUPTA Date:
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ARGUMENTS BY THE STATE
10. It is argued by the Ld. Addl. PP for the State that all the prosecution witnesses have duly supported the case of prosecution. PW 14 who is the mother of the deceased has categorically deposed that accused used to beat her daughter frequently. She has narrated two specific instances when deceased disclosed to her about the beatings given by the accused and that she feared her life at the hands of accused. The son of accused and deceased, who has been examined as PW3 has categorically deposed that accused during the fight with his mother hit her on her hand. As per the postmortem report, Ex.PW11/A, the cause of death is hemorrhagic shock secondary to injury to vessels of the left forearm by a sharp, cutting instrument. Injury no. 1 is sufficient to cause death in the ordinary course of nature. It is argued that sole testimony of PW3 is sufficient to convict the accused. It is further argued that the testimony of the child is further corroborated from the FSL, DNA and serological report. It is prayed that since the prosecution has proved the case beyond pales of reasonable doubt against the accused, he be convicted for the offence U/s.302 IPC.
Digitally
signed by
KIRAN KIRAN GUPTA
Date:
GUPTA 2022.05.25
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ARGUMENTS BY LD. DEFENCE COUNSEL
11. Per contra, it has been argued by the Ld. Defence Counsel that accused has been falsely implicated in the present matter by the mother of the deceased as she was not happy with the marriage of accused with the deceased. It is further argued that no reliance can be placed upon the testimony of PW3 who had been tutored by his naani i.e. PW14. It is further submitted that no reliance can be placed on the testimony of PW3 as it was recorded almost after 2-3 days of the incident and he was tutored by his naani.
11.1. It is submitted that no independent witness has been examined by the prosecution. The place where the incident happened is a crowded place as a lot of people are living in the same building as tenants like accused and deceased. It has remained unexplained that no one gathered at the spot, after hearing the noise of deceased. It is submitted that from the photographs of the spot and the deceased, it is evident that all the articles are intact. Nothing is seen to have fallen down, which shows that there was no resistance on the part of the deceased. It is further submitted that it is quite natural that, if, a Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2022.05.25 16:08:10 State Vs. Ashish Kumar +0530 Page no. 19 of 43 20 person would kill another person with knife, he would attack on stomach or other part of the body. However, from the nature of injury, which is only on the left wrist of the deceased, it cannot be said that the same was inflicted by the accused. It is submitted that the injury seems to be self inflicted or due to fall on some sharp object. He in support of his contentions has relied upon certain portion of cross examination of PW11.
11.2. It is further argued that accused was not present at the spot. He was away from the spot. When he came to know that his wife has died under mysterious circumstances and police was looking for him, he had no other option but to run away in order to protect himself.
11.3. It is further argued that the DNA on the knife did not match with the DNA of the deceased. The recovery of the knife has been implanted upon the accused. It is argued that prosecution has failed to prove any allegation against the accused. It is prayed that accused be acquitted in the present case.Digitally signed by KIRAN
KIRAN GUPTA
Date:
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ANALYSIS OF EVIDENCE AND FINDINGS
12. Heard Ld. Addl. PP for the State, Ld. Defence Counsel for the accused persons and perused the complete record file. The accused is facing trial for the offence U/s. 302 IPC. The essential ingredients of the offence U/s. Section 302 IPC are as follows :
1. Death of a human being was caused;
2. Such death was caused by or in consequence of the act of the accused;
3. Such act was done;
a. with the intention of causing death, or b. that the accused knew it to be likely to cause death,or c. that the injury was sufficient in the ordinary course of nature to cause death.
13. The prosecution in order to prove the offence U/s.302 IPC against the accused has to prove :
A. The presence of accused on the spot at the time of incident.
B. His identification by the eye witness. C. The injuries caused to the deceased and medical opinion as regards cause of death. D. The motive of the accused in causing death of deceased.
Digitally
signed by
KIRAN KIRAN GUPTA
Date:
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14. One of the material witness of prosecution is PW14 Smt. Rani. She deposed that she was earlier residing in WP- 90 Wazirpur village, Ashok Vihar. She was a native of village Jurakhan, Khera, district Unnao, UP. Her daughter Jyoti got married to accused Ashish about less than ten years back. That immediately after marriage, Jyoti and Ashish were residing in Unnao in their house. About 6-7 months prior to death of Jyoti, they shifted to Delhi. They stayed in second floor of a house in block WP, Wazirpur, Ashok Vihar. Her daughter Jyoti had two sons and one daughter. Accused used to set up vegetable rehdi.
After Jyoti shifted to Delhi and came to her house for the first time, she told her that accused used to beat her in the native village and here also. She told her that accused used to ask her to get money for expenses from her. When she did not give money, accused used to quarrel with Jyoti.
14.1. She deposed that Jyoti expired on 11 th day of the month about two years back. On 10th she came to her house and told her that accused had quarreled with her and had beaten her. She pacified her and sent her back. She again came to her on the next day morning at 6 am. She told her that accused had quarreled with her throughout the night and requested her to give her some milk for children. She gave milk to Jyoti who went Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2022.05.25 State Vs. Ashish Kumar Page no. 22 of 43 16:08:28 +0530 23 back home. At around 5-5.30 pm, one of her neighbours Sunita came to her and asked her to accompany her as Jyoti's children were crying. They went to house of Jyoti. She saw her daughter Jyoti lying on the floor with blood all around her. There was a chadar over her. She proved her statement mark-P14/A. She identified her signatures on statement Ex.PW10/A at mark A. She proved her statement regarding identification of body of deceased Jyoti as Ex.PW14/1. She deposed that she received the dead body after PM vide receipt Ex.PW14/2 14.2. She further deposed that in her presence, police had picked up some clothes, pieces of earth control and blood from the spot. The same were seized vide seizure memos Ex.PW14/3 to Ex.PW14/6. She further deposed that one jeans pant and baniyan of the accused was seized. The same had blood stains.
Besides the accused, Jyoti and their children one other boy also resided with them in their tenanted premises. On cross examination by ld. APP, she identified the seized baniyan and jean pant as Ex.P1. She admitted the suggestion that on 10.09.15, when Jyoti came to her house, she told her that accused used to beat her daily and that he might kill her. She admitted the suggestion that accused was suspicious about character of Jyoti on account of her relation with the boy who was staying in their room. All three children of Jyoti were present in her house when she went there on 11.09.15.
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KIRAN GUPTA
State Vs. Ashish Kumar GUPTA Date:
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14.3. During her cross-examination by Ld. Defence Counsel, she deposed that Jyoti and Ashish had a love marriage. She admitted the suggestion that she and her husband were not agreeable to their marriage. She did not like Ashish. She knew Madan who used to stay in house of Jyoti and Ashish. She admitted that there were many tenants in the house where her daughter and accused were staying. She admitted that there were many tenants even on second floor of the house. Jyoti had only one room with her.
14.4. She denied the suggestion that Jyoti had made Madan stay in the room without consent of Ashish. She admitted that earlier Madan used to stay in front of her house. She denied the suggestion that he was staying there for past many years. She deposed that he had come to stay in front of her house only for about 1.5-2 months.
14.5. She denied the suggestion that Madan and Jyoti had friendly relationship. She denied the suggestion that Ashish was earning enough to meet expenses of himself and his family from his vegetable rehdi. She admitted the suggestion that it was she who had proposed that Jyoti and Ashish shift to Delhi. She volunteered that they were staying in house of his mother in law in Unnao and accused had already mortgaged the said house. She Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2022.05.25 State Vs. Ashish Kumar 16:08:39 +0530 Page no. 24 of 43 25 had asked them to come to Delhi so that accused could work and earn something. After accused had shifted to Delhi, she had lodged two complaints with police regarding his beating her daughter. She volunteered that police used to come and settle the matter between husband and wife. She deposed that no complaint was lodged with police on 10.09.15 when Jyoti came to her house and told her about beatings to her. She denied the suggestion that Jyoti never came to house or had not told her anything.
14.6. She admitted that except for Jyoti's children, there was no one else present in the room when she went to house of Jyoti. Neighbours had collected outside. Door of the room was partly closed and electricity was put off when she reached there.
She put on the light after opening the door. About 8-10 public persons were present outside the room of Jyoti. She denied the suggestion that the jean Ex.P1 was of Madan. She admitted the suggestion that physical features of Madan were identical to that of accused. She cannot tell any specific mark of identification on the jean but she knows that it is of the accused as she had seen him in it. She cannot say who had put chadar on body of her daughter as it was already there when she reached her room. Her statement was recorded by police in the police station on the day of incident. Except for police, her statement was not recorded by anyone. She is not aware about the contents of Ex.PW10/A. She Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA Page no. 25 of 43 2022.05.25 State Vs. Ashish Kumar 16:08:46 +0530 26 had not signed any other document. She deposed that son of Jyoti namely Vansh is more than five years old. She denied the suggestion that he could not speak at the time of incident.
15. From the testimony of PW14 it is evident that her daughter before her death had disclosed to her about the beatings given by the accused. Even on the date of incident, in the morning, she went to her house and told her that accused fought with her for the whole night. When during the day in the evening, she went to the house of her daughter, she found that she was lying dead in the pool of blood and her three children were sitting besides her and were crying.
16. The other material witness of prosecution is PW3 Vansh. He is the eye witness. He is the son of deceased and accused and was aged 5 years when the incident happened. The case of the prosecution is primarily based upon his testimony . In order to adjudicate the present case, I deem it appropriate to refer to the well settled law in regard to the testimony of a child witness.
17. In Digamber Vaishnav and Ors. vs. State of Chhattisgarh reported in AIR 2019 SC 1367, the Apex Court has reiterated the well settled principles of the law relating to Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
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testimony of child witness. The relevant portions of the said judgment have been reproduced as under:
"21. The case of the prosecution is mainly dependent on the testimony of Chandni, the child witness, who was examined as PW-8. Section 118 of the Evidence Act governs competence of the persons to testify which also includes a child witness. Evidence of the child witness and its credibility could depend upon the facts and circumstances of each case. There is no Rule of practice that in every case the evidence of a child witness has to be corroborated by other evidence before a conviction can be allowed to stand but as a prudence, the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Only precaution which the court has to bear in mind while assessing the evidence of a child witness is that witness must be a reliable one.
22. This Court has consistently held that evidence of a child witness must be evaluated carefully as the child may be swayed by what others tell him and he is an easy prey to tutoring. Therefore, the evidence of a child witness must find adequate corroboration before it can be relied upon. It is more a Rule of practical wisdom than law. [See Panchhi and Ors. v. State of U.P., (1998) 7 SCC 177, State of U.P. v. Ashok Dixit and Anr.(2000) 3 SCC 70, and State of Rajasthan v. Om Prakash,(2002) 5 SCC 745].
18. In Alagupandi alias Alagupandian v. State of Tamil Nadu, (2012) 10 SCC 451, the Court has emphasized the need to accept the testimony of a child with caution after substantial corroboration before acting upon it. It was held that:
36. It is a settled principle of law that a child witness can be a competent witness provided statement of such witness is Digitally signed by KIRAN KIRAN GUPTA State Vs. Ashish Kumar GUPTA Date:
2022.05.25 Page no. 27 of 43 16:08:58 +0530 28 reliable, truthful and is corroborated by other prosecution evidence. The court in such circumstances can safely rely upon the statement of a child witness and it can form the basis for conviction as well. Further, the evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and that there exists no likelihood of being tutored. There is no Rule or practice that in every case the evidence of such a witness be corroborated by other evidence before a conviction can be allowed to stand but as a Rule of prudence the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Further, it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable."
19. In State Of M.P vs. Ramesh & Anr reported in (2011) 4 SCC 786, the Apex Court while taking into consideration its previous decisions has held as under:
"6. In Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54, this Court examined the provisions of Section 5 of Indian Oaths Act, 1873 and Section 118 of Evidence Act, 1872 and held that every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. There is always competency in fact unless the Court considers otherwise.The Court further held as under:
".....It is desirable that Judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the Digitally signed by KIRAN KIRAN GUPTA Date:
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credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate...."
20. In Mangoo & Anr. v. State of Madhya Pradesh, AIR 1995 SC 959, the Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The Court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring.
21. In Panchhi & Ors. v. State of U.P., AIR 1998 SC 2726, the Apex Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that "the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell Digitally signed by KIRAN KIRAN GUPTA Date:
State Vs. Ashish Kumar GUPTA 2022.05.25 16:09:11 Page no. 29 of 43 +0530 30 him and thus a child witness is an easy prey to tutoring."
22. In Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra, AIR 2008 SC 1460, the Court dealing with the child witness has observed as under:
"The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."
23. In Himmat Sukhadeo Wahurwagh & Ors. v. State of Maharashtra, AIR 2009 SC 2292, it was held that the evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross- examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between Digitally signed by KIRAN KIRAN GUPTA Date:
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right and wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on a oath and the import of the questions that were being put to him.
24. In State of U.P. v. Krishna Master & Ors., AIR 2010 SC 3071, it was held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious Digitally signed by KIRAN KIRAN GUPTA State Vs. Ashish Kumar GUPTA Date: Page no. 31 of 43 2022.05.25 16:09:22 +0530 32 nature.
25. In Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516, it was held that part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness.
26. Thus in view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition.
27. In State of U.P v. Krishna Master reported in Digitally signed by KIRAN KIRAN GUPTA Date:
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(2010) 12 SCC 324 the Apex court has held as follows:
"36. The above stated reasons are the only grounds on which testimony of witness Madan Lal is disbelieved by the High Court. This Court fails to understand as to on what principle and on which experience in real life, the High Court made a sweeping observation that it is inconceivable that a child of Madan Lal's understanding would be able to recapitulate facts in his memory witnessed by him long ago. There is no principle of law known to this Court that it is inconceivable that a child of tender age would not be able to recapitulate facts in his memory witnessed by him long ago. This witness has claimed on oath before the Court that he had seen five members of his family being ruthlessly killed by the respondents by firing gun shots. When a child of tender age witnesses gruesome murder of his father, mother, brothers etc. he is not likely to forget the incident for his whole life and would certainly recapitulate facts in his memory when asked about the same at any point of time, notwithstanding the gap of about ten years between the incident and recording of his evidence.
28. Now coming to the testimony of the child witness. PW3 during his testimony deposed that the name of his father is Ashish and name of his mother is Jyoti. He goes to a village school and learn counting. His father used to work as vendor and his mother used to work at home only. His statement was recorded in Q/A form as follows:
Q1. Beta us din kya hua tha?
Ans. Us din mai apne bhai, behan, mummi aur papa ke sath ghar par tha. Papa ne mummi ko chakku se marra tha.
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Q2. Beta, phir kya hua?
Ans. Papa ne chakku se mummi ka haath kaat dia tha aur chaku mummi ke pet pe mara tha.
Q3. Beta, phir kya hua?
Ans. Papa mummi ko chaku mar kar waha se chale gaye the.
Q4. Beta, tumne kya kiya?
Ans. Mai, mera bhai aur meri behan ro rahe the. Mummi kuch nahi boli, mummi ke pass khoon khoon tha. Bad me meri daadi ayi thi.
28.1. On cross examination by ld. Defence counsel, when child was asked where he was when the incident happened, he deposed that "mai usi kamre me tha. Mera chhota bhai aur behan bhi wahin the". When he was asked as to whether he was awake when the incident happened, he deposed that " tab mai jaag raha tha aur baitha tha". When he was asked, where did the father hit the knife except the stomach, he deposed "papa ne mummi ka haath kata tha or pet par chaku mara tha ( the child answered by pointing towards his hands)". He deposed that khoon laal rang ka hota hai. When he was asked whether the door of the house was opened or closed at that time, he deposed "ghar ka darwaza khula tha". When he was asked as to whether any person came when the quarrel was taking place between his mother and father, he Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2022.05.25 16:09:39 State Vs. Ashish Kumar +0530 Page no. 34 of 43 35 deposed "tab wahan koi nahin aya tha".
29. Thus, PW3 Vansh, has deposed with precision that the accused/ his father had hit his mother on her hand with chaaku / knife. After hitting his mother with knife, his father went away from there. The maternal grandmother came afterwards. Even during cross examination, he specifically deposed he was awake at that time and nobody came on the spot at that time. The child has stood by his testimony before the concerned SDM, during his testimony recorded by ld. MM u/S. 164 Cr.P.C. and during his testimony recorded before the court that his father / accused hit his mother with knife on her hand. There is no embellishment or improvement in his testimony from the beginning till the time when he made the said statement before the court. The minor contradiction that accused also hit his mother in her stomach and that there is no injury on stomach as per MLC is not fatal to the case of prosecution. The ld. Defence counsel has failed to show anything on record to satisfy that something had gone wrong between the date of incident and recording of evidence of the child witness. The ld. Defence counsel has further failed to point out anything on record to show that the child was tutored by any person or his naani. Nothing has come on record to show that the child would falsely implicate his own father for the murder of his mother. The child does not seem to be tutored. In fact, the testimony of child inspires confidence Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2022.05.25 State Vs. Ashish Kumar 16:09:44 +0530 Page no. 35 of 43 36 and it can form the basis for conviction.
30. Now coming to the cause of death. The prosecution in order to prove the cause of death has examined PW11 Dr. Anshul Saxena. He deposed that on 12.09.2015, he conducted the postmortem of deceased Jyoti. He found following external injuries on her body:
I. Incised wound , measuring 5 x 01. cm. was present over the front of the left forearm, cutting underlying tendons, muscles and vessels, being situated 1.8 cm above the left wrist.
2. Contusion, bluish in colour, measuring 4 x.1.5 c.m. was present over the inner aspect of the right arm, situated 1 cm below the elbow.
30.1. He deposed that the cause of death was due to hemorrhagic shock secondary to injury to vessels of the left forearm by a sharp, cutting instrument. Injury no. 1 is sufficient to cause death in the ordinary course of nature. He proved the postmortem report Ex.PW11/A. He deposed that on 08.02.2016, IO filed application regarding opinion on the weapon of offence in the PM Report. He after examining the said knife, gave the subsequent opinion Ex.PW11/C that the injury mentioned in the postmortem report Ex.PW11/A is possible with the weapon of Digitally signed by KIRAN KIRAN GUPTA Date:
State Vs. Ashish Kumar GUPTA 2022.05.25 16:09:50 Page no. 36 of 43 +0530 37 offence i.e. the knife produced.
31. From the testimony of PW11, it is evident that the cause of death was due to hemorrhagic shock secondary to injury to vessels of the left forearm by a sharp, cutting instrument.
Injury no. 1 is sufficient to cause death in the ordinary course of nature. Thus, the deceased Jyoti expired due to injury on her left forearm. Thus, the testimony of PW3 is duly corroborated with the cause of death i.e. injury to vessel of the left forearm by cutting instrument.
32. As per the case of prosecution, the knife which was used for the commission of the offence was recovered at the instance of accused. The prosecution in order to prove recovery of the weapon has examined PW20 Ct. Bir Singh and PW27 Inspector Sanjeev Arora. PW20 and PW 27 deposed that on 19.11.2015, accused took them to Thiman Singh Park which is across the road from Wazirpur Village. At instance of accused, bushes around the spot were checked and he got recovered one knife from there which was seized vide memo Ex.PW20/2. Except the suggestions to these witnesses, nothing has been brought on record by the Ld Defence Counsel to create dent in the testimony of these witnesses. The recovery of the weapon at the instance of the accused together with the medical evidence on record establishes the case of prosecution.
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KIRAN KIRAN GUPTA
Page no. 37 of 43
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33. It has been argued by ld. Defence counsel that the report of the FSL with respect to the weapon of offence in inconclusive as PW25 during her testimony deposed that she preserved the knife in the laboratory for future reference and requested the IO to re-submit the exhibits for DNA comparison, however, subsequently, she did not receive the aforesaid exhibits as requested.
34. In the present case in addition to the knife which was recovered at the instance of the accused, the prosecution has also relied upon the jeans pant and baniyan which was recovered from the spot and has been identified by PW14 Rani to be belonging to the accused. Ex.PW25/1 is the DNA examination of the knife. The report reads as follows:
"The description of the articles contained in parcel is as follows.
Parcel 1 : one sealed cloth parcel sealed with seal of "AS FMT BJRM HOSPITAL" containing Ex."1"
Exhibit 1: One knife made up of plastic handle with metallic blade having few dirty brownish stains.
Result of Biological Examination : Blood was detected on Ex.1.
DNA Examination : The Ex.1 (knife) was subject to DNA Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2022.05.25 16:10:01 State Vs. Ashish Kumar +0530 Page no. 38 of 43 39
isolation. DNA was isolated from the source of Ex.1. Identifiler plus kit was used for PCR amplification and data was analyzed by using gene mapper Idx software.
Results : Female DNA profile was generated from the source of Ex.1 (knife)."
35. The report Ex.PW25/2 is with respect to the clothes of the deceased (Ex.1a to Ex.1d) , gauze cloth containing blood sample (Ex.2), blood stained concrete pieces (Ex.3), concrete pieces(Ex.4), one gauze cloth piece having dark brown stains (Ex.5), blood stained clothes taken from the spot i.e. one jeans having darker stains (Ex.6a) and one baniyan having brown stains (Ex.6b).
Result of analysis :
1. Blood was detected on exhibits Ex.1a, 1b, 1c, 1d, 2, 3, 5, 6a and 6b.
2. Blood could not be detected on Ex. 4.
3. Report of serological analysis in original is attached.
Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2022.05.25 16:10:06 +0530 State Vs. Ashish Kumar Page no. 39 of 43 40 The report of serological analysis is as follows:
Exhibits Species of origin ABO Gouping/ Remarks '1a' Lady's Shirt Human 'B' Group '1b' Salwar Human 'B' Group '1c' Brassier Human 'B' Group '1d' Panty Human Inconclusive '2' Blood stained Human No reaction gauze cloth piece '3' Concrete Material Human No Reaction '5' Gauze cloth piece Human 'B' Group '6a' Jeans Human 'B' Group '6b' Baniyan Human No reaction
36. The perusal of the FSL report Ex.PW25/2 and serological report Ex.PW25/3, shows that the human jeans which was recovered from the spot and stated to be belonging to the accused contained human blood of 'B' Group which was also found on the clothes of the deceased. Even as per report Ex.PW25/1, the female DNA profile was generated from blood detected on the knife. Merely because the IO did not reproduce the said knife for the matching of the female DNA profile on the knife to be that of the deceased is not fatal to the case of prosecution. The knife was recovered at the instance of the Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2022.05.25 16:10:12 State Vs. Ashish Kumar +0530 Page no. 40 of 43 41 accused and female DNA profile was generated from the blood detected on the said knife. As per the subsequent opinion Ex.PW11/C, the concerned doctor opined that the injury mentioned in the postmortem report Ex.PW11/A are possible with the weapon of offence i.e. the knife produced. PW3 deposed with precision that the accused / his father hit his mother on her hand with chaaku / knife.
37. The accused in his statement u/S. 313 Cr.P.C. has taken the plea that he was not present at the spot at the time of incident. He further stated that Madan was seen coming out of his house on 11.09.2015 as was told to him by his well wishers. It is pertinent to mention herein that accused has not examined any person/ well wisher in his defence. As regards his plea for alibi is concerned, it was for him to prove that he was elsewhere and also to prove with absolute certainty to exclude his presence at place of incident by way of any oral or documentary evidence. However, the accused failed to lead any evidence, rather, to the contrary the prosecution has been able to prove the presence of the accused at the spot of the crime from the testimony of PW3 Vanshu who has also stood the test of cross examination.
38. Now coming to the argument of ld. Defence regarding absence of motive on the part of the accused. It is no more res-integra that the importance of motive arises where there Digitally signed by KIRAN KIRAN GUPTA State Vs. Ashish Kumar GUPTA Date:
2022.05.25 Page no. 41 of 43 16:10:17 +0530 42 exists no ocular evidence i.e. case based on circumstantial evidence. The relevance of proving motive looses its importance in a case where well established ocular evidence is available. (Reliance placed on Bipin Kumar Mondal Vs. State of West Bengal, AIR 2010 SC 3638).
39. In the present case, the prosecution has also proved the motive through the testimony of PW14 Rani, who is mother in law of the accused. She in her testimony has deposed that accused suspected about the character of his wife Jyoti. In the testimony of prosecution witnesses, it has come up that one Madan was also residing in the room of the accused. Though the aspect of presence of accused Madan in the room at any time before or at the time when the incident took place has not been proved either by prosecution or by defence, however, it has been proved through the testimony of PW14 that accused suspected deceased was having some relation with said Madan. The said suspicion is sufficient motive on the part of accused to kill his wife.
CONCLUSION
40. On the basis of above discussion, the testimony of PW3, Master Vansh clearly establishes the guilt of the accused to have committed the murder of his own wife. This fact has been Digitally signed by KIRAN KIRAN GUPTA Date:
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corroborated by the recovery of the weapon of offence i.e. knife at his instance and the cause of death as per the postmortem report. The accused has failed to shake the veracity of the child witness. He has further failed to prove the plea of alibi taken by him during his statement u/s. 313 Cr.P.C. The prosecution has proved beyond the pales of reasonable doubt that it is the accused who had committed the murder of his wife Jyoti through ocular, circumstantial and documentary evidence. The accused is accordingly convicted for the offence u/S. 302 IPC.
Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2022.05.25 16:10:29 +0530 ANNOUNCED IN THE OPEN (KIRAN GUPTA) COURT ON 25.05.2022 ADDITIONAL SESSIONS JUDGE-03 NORTH WEST DISTRICT ROHINI COURTS, DELHI State Vs. Ashish Kumar Page no. 43 of 43