Delhi District Court
Fir No. 475/06; State vs . Raj Kumar @ Bindu Page 1 Of 38 on 30 April, 2012
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 58/11
FIR No. 475/06
P.S. Bawana
U/S: 306 IPC
STATE
Versus
Raj Kumar @ Bindu
s/o Banwari Lal
r/o village Nangal Dewat,
H. no. 210, near IGI Airport, Delhi
Date of Institution: 15032007
Date of arguments: 28042012
Date of judgement: 30042012
J U D G M E N T
1. The case of the Prosecution, in brief, is that on 05122006, at about 9 am DD no. 9A was registered regarding suicide by a girl after consuming poison at the house of Dalip, village Bajitpur, Harijan Basti, near chaupal. On this information, ASI Rajender Singh along with Ct. Vinod reached at the spot i.e. H. No. 341, Harijan Basti, village Bajitpur and came to know that FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 1 of 38 deceased Shashi @ Sushila had died and she has been cremated by the family members. On search of the room of deceased, one suicide note dated 04122006 was found by the police. SHO Inspector Kailash also reached at the said house. SDM was informed and Crime Team was also called at the spot. FIR u/s 306 IPC was got registered. ASI Rajender Singh went to the Cremation Ground and ash and bones from the burnt body of Shashi were taken into possession. Suicide note and Beauty Culture File were taken into possession from the room of deceased. One marriage card was also taken into possession. The father and brothers of deceased gave statements to the police that accused Raj Kumar @ Bindu forced Shashi to commit suicide and held Raj Kumar responsible for the suicide of Shashi. On 15122006 police along with Suresh Kumar, brother of deceased, went to Nangal Devat village and at the instance of Suresh, accused Raj Kumar @ Bindu was arrested from his house and accused gave disclosure statement and got recovered a mobile phone make Nokia and two negatives of the photographs from a box lying in a room which were seized. Accused was brought to PS and put in the lock up. After completion of investigation, chargesheet was filed against the accused.
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2. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 306 IPC was framed against the accused to which he pleaded not guilty to the charges and claimed trial.
3. In order to prove its case, Prosecution has examined 11 witnesses. Statement of accused was recorded u/s 313 Cr.P.C. therein he denied all the allegations made against him and stated that he was called by the police at PS where he was detained illegally and later on falsely implicated in this case.
4. I have heard Ld. Defence counsel and the Ld. APP for State and have perused the entire records.
5. In the present case, accused Raj Kumar @ Bindu has been charged for the offence punishable u/s 306 IPC. Let us firstly discuss about the legal position under section 306 IPC. Abetment of suicide is punishable under this Section. Abetment of suicide is confined to the case of persons who aid and abet the commission of suicide by the hand of the person himself who commits the suicide. Such offences are punishable for cogent reasons in the interest of society. The parameters of 'abetment' have been stated in section
107. Section 107 IPC says that a person abets the doing of a thing who instigates any person to do that thing or engages with one or FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 3 of 38 more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy or the person should have intentionally aided any act or illegal omission. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. It is not what the deceased 'felt' but what the accused 'intended' by his act which is more important in this context. The ingredients for abetment for suicide would be satisfied only if the suicide is committed by the deceased due to direct and alarming engagement /incitement by the accused leaving no option but to commit suicide.
6. Ld. Counsel for accused has argued that the complaint is upon DD entry. Police reached at the site and found the suicide note as per the Prosecution story. The allegation of abetment of suicide upon the accused is false and fabricated since abetment is missing in this case. The suicide note is not an immediate act of alleged abetment. The accused was not present at the spot at the time of suicide. Committing suicide is her own decision and there is no role of the accused for abetment. According to Prosecution case, the suicide note was received in the presence of PW2 and PW3 but PW2 and PW3 denied the suicide note. Prosecution case FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 4 of 38 is that the deceased was having mobile phone but PW3 denied about it. PW1, PW4, PW6, PW7 and PW8 are the formal witnesses. PW5 is the brother of deceased. Examination in chief of PW5 was recorded but his crossexamination was not conducted. In this regard, an application u/s 311 Cr.P.C. was filed which was allowed but PW5 unfortunately died, therefore, the examination in chief of PW5 may not be read against the accused. PW5, in his examination in chief deposed that the incident took place on 04102006 & 05102006 whereas the date of incident is 04/05122006. PW5 identified the book writing and suicide note but no seizure memo was prepared in the presence of PW5. Handwriting expert compared and matched the handwriting of the suicide note and not signature. Note book can be manufactured. However, CFSL expert was not examined. The accused was arrested after 11 days of the incident. Arrest of accused at the instance of Suresh is false. There was no identification mark on mobile phone. The conduct of family members of the deceased is important since they never made a telephone call to the police. The room was not locked and there are chances of tempering of evidence. Inspector Kailash, who received the suicide note, was not examined. None was examined from the inlaws of the deceased FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 5 of 38 though they were made witnesses. Call details were not placed on record which is fatal to the Prosecution case. It is nowhere stated in the suicide note about the mobile phone. Mobile is not in working condition. No bill of Nokia phone is filed on record, therefore, recovery of mobile phone is doubtful. The Ld. Counsel for the accused has further argued that there are material contradictions in the testimony of PW1 and PW6 to PW11 which go to the root of the case and on this ground, the Prosecution case falls down. The Ld. Counsel for the accused has also argued that no appropriate steps were taken by the police to join independent or public witnesses, therefore, nonjoining of the public witnesses in the investigation is fatal to the Prosecution case. The Ld. Defence counsel, in support of his arguments, has relied upon the judgements reported as Sanju @ Sanjay Singh Sengar Vs. State of Madhya Pradesh, 2002 (2) RCR (Criminal) 687; Laxmi & Anr. Vs. State, 85 (2000) DLT 319; Ramesh Chandra Vs. State of Rajasthan, 1997 (4) RCR (Criminal) 305; Roop Kishore Madan Vs. State, 89 (2001) DLT 150; M. Mohan Vs. State Tr. Dy. Supdt. of Police, 2011 (2) RCR (Criminal) 272; Ajay Singh Parveen & Anr. Vs. State of UT Chandigarh, 2011 (2) RCR (Criminal) 405; Ashwani Kumar Vs. State of Haryana, 2011 (1) RCR (Criminal) 108; Rajib Neog Vs. The State of Assam, 2011 (2) FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 6 of 38 RCR (Criminal) 43.
7. Whereas, the Ld. APP for State has argued that the accused abetted the deceased Shashi @ Sushila to commit suicide. PW5 is the brother of deceased who is the star witness and in his presence, recovery of suicide note was made. An opportunity was given to the Ld. defence counsel to crossexamine PW5 but Ld. counsel for the accused did not prefer to crossexamine PW5. However, PW5 was murdered later on. Therefore, statement of PW5 shall be read in evidence in view of the provisions u/s 33 of the Evidence Act in case, the witness is dead. The circumstances created by accused aggravated the deceased to commit suicide. So far as the other relatives of the deceased except PW5 are concerned, they have become hostile. The FSL report is positive. Though FSL expert was not examined, yet FSL report is per se admissible u/s 293 Cr.P.C. Even otherwise, the accused had not disputed it anywhere in evidence. The Ld. APP for the State has argued that there is no contradictions in the testimony of PWs. The accused cannot get the benefit of the minor contradictions in the statement of the aforesaid PWs, if any. The Ld. APP, in support of his arguments has relied upon the judgements reported as Sohan Raj Sharma Vs. State of Haryana 2007 (2) CC Cases (HC) 87; FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 7 of 38 Bhagwan Dass Vs. State (NCT) of Delhi 2011 III AD (CRI.) (SC) 157; Paramjeet Singh @ Pamma Vs. State of Uttarakhand, AIR 2011 SC 200; Dhanaj Singh alias Shera & others Vs. State of Punjab, AIR 2004 SC 1920; Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J. 2653 (1) and State of UP Vs. Krishna Master and ors. 2010 CRI. L.J 3889.
8. In view of the above arguments of the Ld. Defence counsel and the Ld. APP for the State as well as the judgements relied upon by them, let us examine the evidence led in this case as to whether the accused has not abetted Shashi @ Sushila to commit suicide. PW1 SI Suraj Bhan deposed that on 05122006, he was posted as Incharge, Mobile Crime Team, NW District. On that day, he received information on wireless set at about 10:40 am. PW1 along with member of Mobile Crime Team reached at H. No. 341, Harijan Mohalla, village Bajitpur, Delhi at the house of Dalip Singh. ASI Rajender along with staff was already present there. They came to know that the dead body was already cremated. They immediately reached at the Cremation Ground and found that body was already cremated. Their photographer HC Ramesh Chand took the photographs of the Cremation. He instructed the IO to lift some ash and bone pieces. Thereafter, they again reached to the said FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 8 of 38 house at First floor in a room and PW11 inspected the scene of crime. PW1 further deposed that IO told him that the girl was sleeping on the cot lying there. IO already recovered one suicide note written in Hindi. Photographs of the suicide note were also taken. PW1 prepared detailed report vide Ex. PW1/A bearing his signature at point A. IO also recorded the statement of PW1. PW1 identified the suicide note Ex. PW5/A.
9. PW2 Dalip Singh deposed in his examination in chief that he is a retired person from PWD and have five sons and five daughters out of which one daughter namely Shashi @ Sushila (since expired) was elder than younger daughter. Her marriage was fixed with at Bhajanpura and the date of marriage was 11122006. On 04122006, they all the family members met together in his house and his daughter asked him to give motorcycle to her inlaws in the marriage but PW2 refused her that he cannot afford the expenditure of the motorcycle due to which she became perplexed. PW2 asked his younger son as together is having any money with him and his son told him that he can afford Rs. 30,000/ for giving the motorcycle on the pretext that PW2 told to his daughter that they will give motorcycle in the marriage on listening the same, she immediately started laughing and thereafter she felt pain on her FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 9 of 38 chest. PW2 asked his son to take her to the hospital and his son told him that they will get checked her in the hospital in the morning as some purchasing of the marriage was also due on the next day. His daughter told him that she was feeling some relief and she further told that she will accompany with them in the morning to the doctor. PW2 further deposed that on the next day morning, when he called his daughter through his son, he came to PW2 and told that his daughter Sushila was lying on the bed and there was no movement in her body. Then, PW2 along with other family reached in the room and they found that there was no movement and he felt that she had already expired. PW2 immediately called all the family members and relatives and also called the Pradhan of the village. All of them reached there and insisted PW2 to funeralize her body. Thereafter, they took the body of her daughter and funeralised her. Somebody made telephonic call to the police and police reached at Shamshan Ghat and they conducted some proceedings but PW2 does not know what investigation had been conducted by the police. Police obtained his signatures on plain paper. Police inquired from him and PW2 told them about the aforesaid facts. PW2 however, identified the accused present in the court as distant relative who used to visit his house oftenly but PW2 denied that the accused had FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 10 of 38 any concern with his deceased daughter and with this case.
10. PW3 Suresh Kumar s/o Dalip Singh deposed in his examination in chief that deceased Sushila was his sister but he does not remember date, month and year. However, on that day, in the evening, she came from her studies from school St. Xavier where she was doing course of beauty culture. She complained of headache and bodyache and she took some medicine & tea and went to sleep. In the morning, she did not wake up and then his younger brother Sandeep went to her room. She was not responding, then he called other family members. PW3 also deposed that his father had seen her and found that she was dead. In the meanwhile, neighbourers from Mohalla also gathered and they also confirmed that his sister had died and thereafter as per their advice, they performed her last rites. After several hours, police suddenly came to their house but PW3 does not know what proceedings were conducted by police. No inquiry was made from him by the police. Police did not record the statement. After 710 days, PW3 was called at PS and he was made to sign on 34 blank papers. Later on, PW3 did not come to know who was arrested by police. PW3 identified the accused present in the court that he is his brother in law.
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11. PW4 Balvir Singh who is running a photo studio in the name of Aakash Photo Studio deposed that his shop is at the ground floor whereas he is residing on the first floor at E72, Shahbad Dairy, Delhi. PW4 deposed that about 3 or 3½ years back, one day near the festival of Diwali, one boy and girl came to his shop for their photograph. He took the joint photograph of both of them. They both again visited his shop for joint photograph. PW4 took their photograph and handed over the negative to them. They were in hurry and did not want the positive. On one occasion, PW4 had given a print to them with negative. PW4 identified the photograph of the boy and girl as Ex. PW2/A, PW2/B, PW2/C and PW3/G. PW4 further deposed that all the photographs having the background of his studio. Police came to his shop and made inquiries. However, PW4 did not identify the accused present in the court since he was not having hairs on his head and wearing handkerchief. The witness PW4 was directed to see the photograph. PW4 after seeing the photograph, identified the accused who is the same person. PW4 admitted that boy told his name as Raj Kumar @ Chintoo and the girl name was Shashi. The photograph was also having the photo of accused and one girl namely Shashi.
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12. PW5 Sandeep Kumar s/o Dalip Singh deposed in his examination in chief that they are five brothers and five sisters, out of which his one sister Sushila expired. On 11122006, marriage of his sister Shashi @ Sushila was going to be solemnized. His elder brother got married at village Dewat Nangal with Sunita. Accused Raj Kumar @ Bindu is brother of Sunita. Accused Raj Kumar @ Bindu used to visit their house. Accused Raj Kumar used to see his sister Shashi @ Sushila with wrong intentions. PW5 further deposed that they asked him not to visit their house. His deceased sister used to go to learn the beauty parlour course at Bawana. Accused Raj Kumar tried to lift her from there. Accused snatched forcibly mobile phone of his sister. PW5 deposed that his sister told this incident to them when she came back to the house. PW5 also deposed that his sister was disturbed and in great trouble because of this incident as well as accused used to harass her. This incident took place on 04102006, on that day, she went to her room in the evening. On 05102006, when PW5 went to the room of his sister, he found that there was no movement in her body then he told to his family members about this. PW5 also deposed that his family members discussed the matter with other villagers and then they took the body of Shashi @ Sushila for her funeral. Police reached FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 13 of 38 at the funeral ground. Police also came to their house and checked the room of Sushila and found one suicide note. Police also lifted some ashes from the funeral ground. Police made inquiries from them and also recorded the statements at PS. PW5 further deposed that after 23 days, accused Raj Kumar @ Bindu was arrested. Police recovered the mobile phone of his sister from his possession. Some photographs were also seized by the police. PW5 also came to know that some photographs have been thrown by the accused in their locality to defame his sister but PW5 did not see the photographs. PW5 also deposed that his sister committed suicide due to the pressure and harassment of the accused as he wanted to defame her. PW5 identified the accused Raj Kumar present in the court. Police seized the book of his sister which was used by her during the beauty parlour course. PW5 identified the suicide note which was Marked Y and exhibited as Ex. PW5/A which was recovered from the room of his sister. PW5 also identified the beauty parlour register of his sister which was marked as Mark X and exhibited as Ex. PW5/B having the writing of his sister. PW5 also identified the writing of his sister. PW5 further deposed that he did not want to say anything else.
13. PW6 Ct. Vinod Kumar deposed that on 05122006, he FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 14 of 38 was posted at PS Bawana and on that day, on receiving DD no. 9A at 9 am, he along with Rajender Singh reached village Bajitpur, H. No. 341, Harijan Basti. They recovered one suicide note Ex. PW5/A from the house. IO seized that suicide note vide memo Ex. PW5/D bearing his signature at point C. IO also seized some ash and bones from the Cremation Ground by turning into a parcel and sealed with the seal of RS and taken into possession vide memo Ex. PW6/A signed by PW6 at point A. IO prepared rukka and handed over to PW6 for registration of FIR. PW6 went to PS and after getting registered the case, reached at H. No. 341, Harijan Basti, village Bajitpur and handed over to the IO and IO recorded statement of PW6. PW7 W/HC Vedwati deposed that on 05122006 she was posted at PS Bawana as Duty Officer from 8 am to 4 pm and on that day she recorded FIR no. 475/06 u/s 306 IPC as Ex. PW7/A on the basis of rukka brought by Ct. Vinod and sent by ASI Rajender. She also made endorsement on the original rukka vide Ex PW7/B. Computer generated copy of FIR is Ex. PW7/C. PW8 HC Umed Singh deposed that on 05122006, he was posted as MHCM at PS Bawana and on that day ASI Rajender Singh deposited one sealed parcel containing ash and bones of this case. He made entries in this regard in register no. 19 at Sl. no. 498 FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 15 of 38 vide Ex. PW8/A (OSR). On 15122006, ASI Rajender Singh again deposited one mobile phone make Nokia and two negative photographs along with seizure memo and he made entry at Sl. no. 515/A/06 in register no. 19 vide Ex. PW8/B (OSR). PW9 HC Krishan Kumar deposed that on 15122006, he was posted at PS Bawana and on that day, he along with ASI Rajender Singh and brother of deceased namely Suresh went to village Nangal Devat to arrest accused Raj Kumar @ Bindu and at the instance of Suresh, accused was arrested from H. No. 210, village Nangal Devat vide memo Ex. PW9/A and his personal search was conducted vide memo Ex. PW9/B. Accused got recovered one mobile phone make Nokia and two negatives of the photographs after lifting from the box lying in his room which were seized vide memo Ex. PW9/C which was also signed by Suresh at point A. IO recorded disclosure statement Ex. PW9/D of accused. PW9 identified the two negatives Ex. PW3/H and PW3/I and one mobile phone make Nokia Ex. P1 which were got recovered by the accused.
14. PW10 SI Rajender Singh deposed that on 05122006, he was posted at PS Bawana as ASI and on that day he was on emergency duty. On receipt of DD no. 9A regarding death of a girl by consuming poison at Bajitpur village, Chaupal in the house of FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 16 of 38 Dalip, Harijan Basti. He along with Ct. Vinod reached at the spot where he came to know that girl Shashi @ Sushila had committed suicide in the night hours and her relatives had taken her to funeral ground. Inspector Kailash along with other staff also reached at the spot. He along Inspector Kailash and other police staff took formal search of room where Shashi @ Sushila went for sleeping in the night and found one suicide note lying on the backside of mirror. Information to SDM and Crime Team was sent. The suicide note was shown to the father of deceased Shashi @ Sushila as well as her brother and they identified the writing of Shashi @ Sushila. The suicide note was taken into possession vide memo Ex. PW5/D. Thereafter, they went to funeral ground and found dead body of Shashi @ Sushila almost burnt. He prepared the rukka Ex. PW10/A and got the FIR registered through Ct. Vinod. Crime Team members were taken to the house of deceased and they took photographs of the scene of occurrence. Crime team also inspected the funeral ground and took photographs and inspected the funeral ground. He prepared the site plan of the funeral ground vide Ex. PW10/B and also prepared site plan of the house vide Ex. PW10/C.
15. PW10 also lifted the ashes of the deceased from the funeral ground and turned it into parcel and sealed with the seal of FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 17 of 38 RS and it was taken into possession vide memo Ex. PW6/A. He also seized the file of beauty culture course Ex. PW5/B of deceased containing the writing of deceased and her marriage card Ex. PW2/D and photo of deceased Ex. PW3/D vide memo Ex. PW5/C. PW10 recorded the statements of the Crime Team, police witnesses and also of Dalip, Suresh and Sandeep. PW10 identified the suicide note Ex. PW5/A. On 15122006, he along with Ct. Kishan and Suresh Kumar went to Nangal Devat village and at the instance of Suresh, accused Raj Kumar @ Bindu was arrested from his house vide arrest memo Ex. PW9/A and his personal search was conducted vide Ex. PW9/B. Accused gave disclosure statement Ex. PW9/D and got recovered the mobile of Shashi and two negatives of the photographs from a box lying in a room which were seized vide memo Ex. PW9/C. Accused was brought to PS. PW10 further deposed that suicide note along with admitted handwriting file were sent to FSL and got developed the photographs from the negatives. The witness identified accused and both the negatives Ex. PW3/H and PW3/I; the photographs as Ex. PW12/A and PW12/B; burnt bones and ash as Ex. P2 as lifted from the cremation ground and one mobile phone of blue colour as Ex. P1 as recovered from the house of accused and belonging to deceased. PW11 ASI Ramesh FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 18 of 38 Chand deposed that on 05122006, he was posted as photographer in Mobile Crime Team, NW District and on that day he along with In charge SI Suraj Bhan and other members of Crime Team reached at H. No. 341, Harijan Mohalla, village Bajitpur, Delhi and also Cremation Ground and took seven photographs of the scene of crime, suicide note and cremation ground. One negative of the cremation ground was washed out. He brought the seven negatives out of which one was washed out. Positives of the negatives are Ex. PW11/A 1 to PW11/A6 and the negatives as Ex. PW1/N1 and PW1/N7 (one negative washed out)
16. As PW5, the only star witness, was resiling from his statement made before the police earlier, therefore, Ld. APP was allowed by the Ld. Predecessor Court to crossexamine PW5. During crossexamination, PW5 admitted that incident pertains to the year of 2006 and about 5 years have been passed and it may be possible that some facts he could not depose in his examination in chief. PW5 admitted that his family members asked to the accused Raj Kumar not to meet his sister at Bawana. PW5 admitted that he told to the police in his statement that his sister told them that accused Raj Kumar tried to blackmail her. PW5 admitted that his sister told in the evening on 04102006 that she was feeling FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 19 of 38 headache and bodyache and then she went to her room. PW5 admitted that police seized beauty parlour register Ex. PW5/B along with big photograph of Sushila Ex PW3/D and her marriage card Ex. PW2/D and it was taken into possession vide Ex. PW5/C bearing his signature at point B. PW5 further admitted that at the time of recovery of suicide note Ex. PW5/A, police prepared seizure memo Ex. PW5/D bearing his signature at point B. PW5 identified the mobile phone make Nokia Ex. P1 which was the same being used by her sister. PW5 also deposed that he had seen photograph Ex. PW2/A, PW2/B, PW2/C and PW2/G and these photograph reflect his sister and the accused. PW5 further admitted that these are the same photographs which were used by the accused to defame his sister. PW5 deposed that due to lapse of time of five years, he could not tell these facts in his examination in chief. Despite opportunity given, the Ld. Defence counsel did not prefer to cross examine PW5. Later on, the application of the accused u/s 311 Cr.P.C. was allowed by the Ld. Predecessor court to crossexamine PW5 subject to cost of Rs. 5,000/ in case PW5 is not able to appear or traceable, then the already recorded statement of PW5 shall be read as evidence in this case and it would be a last and final opportunity to crossexamine PW5. However, PW5 FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 20 of 38 unfortunately was murdered as stated by the Ld. APP, therefore, PW5 could not be crossexamined. Thus, the statement of PW5 already recorded is to be read as evidence.
17. PW3 Suresh, who is the brother of deceased Shashi @ Sushila deposed in his crossexamination conducted by the Ld. APP for State that marriage of Sushila was fixed at Bhajanpura and the date of the marriage was 11122006. Accused Raj Kumar @ Bindu, his brother in law, used to visit his house once or twice in a year. PW3 identified the accused in the court that he is his brother in law. PW3 admitted in his crossexamination conducted by Ld. APP for State that on 04122006 she (deceased) complained about the headache and body ache when she returned from St. Xavier School at Shah Bad, Daulat Pur. PW3 identified the marriage card of Sushila as Ex. PW2/D. PW3 also identified the photograph of Sushil as Ex. PW3/D. PW3 also admitted that photographs are the photos of his deceased sister and accused Raj Kumar. PW2 Dalip Singh, father of the deceased deposed in his crossexamination conducted by Ld. APP that his son Suresh married with Sunita belonging to Nangal Dewat. PW2 admitted that accused present in the court is brother in law of his son Suresh. PW2 also admitted that his deceased daughter was doing beauty culture course and FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 21 of 38 she used to go Bawana for her course. PW1 SI Suraj Bhan in his crossexamination deposed that he made departure entry. He was along with photographer, finger print proficient and driver. He reached H. No. 341, Harijan Basti, village Bajitpur at about 5 pm and at that time IO along with staff and family members of deceased were present. He remained there for about half an hour. IO recorded his statement at Cremation Ground. PW1 denied the suggestion that he never visited the Cremation Ground. First he had visited the Cremation Ground and then to the house of deceased. When he reached there, the door of the room of deceased was open. PW1 denied the suggestion that he prepared the false report at the instance of IO.
18. PW11 denied the suggestion that he never visited the scene to crime along with Mobile Crime Team. He reached at the scene of crime for the first time at about 1:40 pm. Then they visited the scene of crime at 5 pm. PW11 further deposed that again they visited at Cremation Ground of village Bajitpur and reached there at about 5 pm where they met IO who took them to H. No. 341, Harijan Mohalla, village Bajitpur. PW11 remained there for about 5 to 7 minutes and he took two photographs. When he took photographs, doors were open. He was present with Incharge Mobile Crime FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 22 of 38 Team and IO. Thereafter again, PW11 had reached at Cremation Ground at about 5:25 pm. IO recorded his statement at Cremation Ground. PW11 denied the suggestion that no suicide note Ex. PW5/A recovered at the room and no photograph was taken by him. PW11 further denied the suggestion that he neither visited the Cremation Ground nor H. No. 341, Harijan Mohalla, village Bajitpur. PW4 Balbir Singh deposed in his crossexamination that police told him the name of girl Shashi and name of boy as Raj Kumar. On one occasion, he developed the prints and handed over to them with negatives. PW4 denied the suggestion that accused never visited his photo studio along with Shashi Ex. PW2/A to PW2/C and PW3/G.
19. PW6 in his crossexamination deposed that his statement was recorded on the same day at the place of incident i.e. H. No. 341, Harijan Basti at about 4:15 pm and that he accompanied the IO on his twowheeler scooter and reached there within 15 minutes and DO already made departure entry in DD no. 9A. The suicide note was recovered at the time of first visit and on the day of incident, the house was two storey building i.e. ground and first floor. PW6 further deposed in crossexamination that they reached Cremation Ground at about 9:25 am and left from there at about 12 FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 23 of 38 noon and remained there for abut 2½ hours. At the time of seizure of ash and bones at Cremation Ground, several public persons were present there. PW6 left the Cremation Ground with rukka for PS and IO went to H. No. 341, Harijan Basti, village Bajitpur. He handed over rukka and FIR to IO at about 4 pm and they all left the house at about 5:45 pm and reached the PS at about 6 pm. PW6 further deposed in his crossexamination that IO had taken the signatures of public persons on seizure memo of suicide note but he does not know whether they were relatives or resident of the village. PW6 denied the suggestion that IO obtained signatures of family members of deceased on blank papers at PS. PW6 further deposed in crossexamination that at the time of recovery of suicide note, IO, PW6 and both brothers were present in the room of deceased. PW6 further denied the suggestion that suicide note Ex. PW5/A was not recovered from the room in his presence or that he had not joined the investigation or that nothing was recovered by the IO in his presence or that IO had not prepared any seizure memo at the spot. PW7 W/HC Vedwati denied the suggestion that Ct. Vinod did not visit at PS with rukka or that she had not handed over copy of FIR and rukka to him. PW7 further denied the suggestion that FIR is antetime or that she has not recorded the same correctly. PW8 in FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 24 of 38 his crossexamination deposed that column no. 3 does not bear the signatures of depositor. However, PW8 volunteered that he had mentioned the name of the depositor. PW8 denied the suggestion that ASI Rajinder did not deposit the sealed parcels of ash and bones and the entries were manipulated by him at the instance of IO. PW8 further denied the suggestion that entries were made at the instance of IO and are manipulated.
20. PW9 HC Krishan Kumar deposed in his cross examination that he left the PS around 67 pm in the evening. PW9 denied the suggestion that Suresh never joined the investigation. PW9 further denied the suggestion that his signatures were taken at PS on all the memos. The distance between the house of accused and PS is about 3035 kms. They went in a DTC bus. PW9 denied the suggestion that they never went by the DTC bus to the house of accused. They reached at the house of accused around 9 pm in the night. They were in uniform. The house of accused was situated in a permanent gali. The houses were situated in front of the house of accused. IO by voice called the neighbours but nobody came forward. At that time, in the house all the accused, his mother and brother were present. They were not joined in the investigation but informed about the arrest of accused. They remained in the house FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 25 of 38 of accused around 45 minutes. IO recorded his statement at Nangal Devat but he cannot tell the time. Accused was arrested at about 99:10 pm. PW9 denied the suggestion that accused was not arrested in his house as stated by him in his examination in chief. PW9 further deposed in his crossexamination that it was a small box. The box was not seized by the IO. The box was lying in a corner and he cannot tell whether it was left side or right side from the entrance door. PW9 again deposed that it was on the left side. PW9 denied the suggestion that accused did not got recovered mobile and negatives. PW9 denied the suggestion that mobile phone was planted upon the accused. All writing work was done at the house of accused. PW9 denied the suggestion that accused did not make any disclosure statement. PW9 further denied the suggestion that no memo was prepared at the spot and the entire writing work was done while sitting at the PS. PW9 saw the signatures on Ex. PW9/A and PW9/B and identified his signatures. PW9 denied the suggestion that all the memos are in different type of signatures which are not his signatures and the same were put by the IO himself in the PS.
21. PW10 in his crossexamination denied the suggestion that bone and ash do not belong to the deceased and same are FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 26 of 38 planted by him. PW10 had received DD no. 9 at about 9 am at PS. PW10 made efforts to know about the collar but could not succeed. PW10 further deposed that during investigation, it came to his knowledge that none of the family members or deceased telephoned to police. PW10 further deposed in his crossexamination that after receiving DD entry, he had reached at the house of Dalip Singh at about 9:20 am or 9:25 am. PW10 along with Ct. Vinod Kumar left the PS on private motorcycle after receiving DD no. 9 and reached at the house of Dalip Singh. The motorcycle belonged to Ct. Vinod Kumar. PW10 denied the suggestion that he did not leave the PS on private motorcycle along with Ct. Vinod Kumar. PW10 deposed that Crime Team did not arrive till he remained there for about 15 to 20 minutes. At about 9:20 -9:25 am in the room at first floor where the deceased committed suicide, no person was present but 2/3 persons along with him went there. The room was not locked. Inspector Kailash recovered suicide note Ex. PW5/A. At the time of recovery, he along with Inspector Kailash, Ct. Satish, Ct. Vinod were present. Apart from these police officials, family members of the deceased were also present namely Dalip Singh, Sandeep, and Suresh. PW10 denied the suggestion that no suicide note recovered as alleged in the examination in chief. PW10 further FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 27 of 38 denied the suggestion that suicide note Ex. PW5/A is planted and it does not contain handwriting of the deceased. PW10 denied the suggestion that father of the deceased Dalip Singh and brother Sandeep and Suresh did not tell him that Ex. PW5/A in the handwriting of deceased. PW10 denied the suggestion that suicide note Ex. PW5/A was not recovered from the room where deceased committed suicide and it was also not seized by him. PW10 further deposed in crossexamination that from 9 to 9:25 am, no other proceedings were conducted except recovery of suicide note Ex. PW5/A. PW10 volunteered to say that they went to Cremation Ground. He seized ashes and bones of deceased. PW10 denied the suggestion that he did not seal and seize ashes and burnt bones of deceased. Thereafter, he returned to the house of Dalip Singh and Crime Team members were standing near the village and they telephoned him whereupon he asked them to take photographs of the room where deceased committed suicide.
22. PW10 further deposed in crossexamination that he again remained at the house of Dalip Singh for about 20 minutes and recorded statement of Dalip Singh. PW10 denied the suggestion that neither Dalip Singh nor his sons Suresh and Sandeep gave any statement. PW10 further deposed in cross FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 28 of 38 examination that statements of Dalip Singh, Suresh and Sandeep and seizure memo of suicide note are in his handwriting. PW10 also deposed in crossexamination that beauty culture file of deceased and photographs were seized on 05122006 which were handed over to him by Inspector Kailash. PW10 further deposed in crossexamination that on 15122006, he left the PS at about 3:30
--4 pm and made DD entry and that village Nangal Devat is situated at a distance of 3540 kms from PS Bawana and reached the house of accused at about 9 pm. PW10 further deposed in cross examination that accused was arrested by him at 9:10 pm from his house situated in the village and that no native resident of village of accused joined the investigation at that time. PW10 denied the suggestion that Suresh did not accompany him on 15122006. PW10 further deposed in crossexamination that at that time no Pradhan was designated for the village and that when he reached the house of accused, mother and brother of accused Rajesh were present and house was not locked and that he remained at the house of accused for about 4550 minutes. PW10 denied the suggestion that he prepared all the documents while sitting in the PS. PW10 further deposed in his crossexamination that he had written these documents while sitting in Aangan in front of rooms in FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 29 of 38 the house of accused while sitting on the cot and that arrest memo, personal search memo and disclosure statements are in the handwriting of Ct. Krishan Kumar while site plan Ex. PW10/B and PW10/C are in his handwriting. PW10 further deposed in cross examination that he prepared four documents at the house of accused and first documet was arrest memo while the last document was recovery memo of mobile and negative. The recovery was effected from the room situated at left side of the gate and box was small iron box which was unlocked but it was not seized. The mobile phone was not in working condition and he did not open the mobile phone. Accused taken out negatives from the box kept between the clothes and no other article of box was seized. The box was having some clothes. PW10 denied the suggestion that mobile phone and negatives were planted upon the accused just to solve the case. PW10 further deposed in crossexamination that he returned to PS at 11:10 pm through buses and made entry Ex. PW10/X1. PW10 further denied the suggestion that accused was not arrested by him or that nothing was recovered at the instance of accused. He further denied the suggestion that accused did not make any disclosure statement.
23. In the present case, though there are some FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 30 of 38 contradictions in the testimony of the said PWs yet these contradictions are minor contradictions and do not go to the root or core of this case. In this context, a reliance is placed upon the judgement reported as State of UP Vs. Krishna Master & ors. 2010 Cri. L. J. 3889, it was held by the Hon'ble Supreme Court that minor discrepancies, not touching core of case, cannot be ground for rejection of evidence in entirety. Further, so far as public witnesses joining the investigation are concerned, during cross examination, PW6 deposed that IO recorded statement of some public person but he does not know their names. PW9 deposed in his crossexamination that no crowd gathered on seeing them in the village. Further, no neighbour joined the investigation as it was night time. No villager was passing through the gali. At that time, in the house of accused, his mother and brother were present. PW10 in his crossexamination deposed that there were 3035 persons present and that PW10 did not record statement of any person as nobody was willing to disclose the facts regarding the incident. It is pertinent to mention here that the public persons are reluctant to become witnesses of criminal trial. Therefore, law is not that testimony of police officers is absolutely untrustworthy or that it can never be acted upon. It has been held in a catena of judgements by FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 31 of 38 the Hon'ble Supreme Court and Hon'ble High Court of Delhi that merely because public witnesses are not joined in a case, the Prosecution case cannot be thrown out. In such circumstances, no benefit can be given to the accused for not joining of independent public witnesses. In this context, a reliance can be had upon the judgements reported as State of UP Vs. Anil Singh AIR 1988 SC 1998; Ambika Prasad & Anr. Vs. State 2002 (2) Crimes 63 (SC); Dr. Krishna Pal & Anr. Vs. State of UP 1996 (7) SCC 194. Further, there is no principle of law that without corroboration by independent witnesses, testimonies of police officials cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as to the other person. Thus, it would not be a proper judicial approach to distrust and suspect the testimonies of police officials without good grounds. The statements made by the police officials as witnesses should be given same weight as statements made by other witnesses. In this context, a reliance can be placed upon the judgments reported as Karamjit Singh Vs. State (Delhi Administration), AIR 2003 SC 1311 and Ritesh Kumar Vs. State of Goa, 2006 Cri. LJ (NOC) 61 (Bom).
24. Therefore, it is proved on record by way of oral testimony of PWs supported by documentary evidence and the case property FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 32 of 38 that death of Shashi @ Sushila is not disputed. The accused used to harass Shashi @ Sushila and tried to lift her from Bawana. The photographs were used to defame her even at that time when her marriage was to be performed on 11122006 i.e. only six days after the incident. On 04122006, she complained of headache an bodyache to her family members and went to her room in the evening. On 05122006 next morning, the family members of Shashi @ Sushila came to know that she was lying on bed and there was no movement in her body and her family members came to know that she was already dead. Suicide note Ex. PW5/A in her handwriting was recovered from her room which revealed that the accused got the photographs with her. After fixing of her marriage, the accused started blackmailing her and the said photograph was sent by the accused to her inlaws. When she went to Bawana, he rang her on phone and thereafter reached there within two hours and started to tell her on phone to sit in his vehicle and when she denied, the accused snatched her mobile phone and tried to call to her inlaws and due to these instances and reasons, she was committing suicide for which her family members are not responsible. The FSL report Ex. PX also reveals positive report regarding handwriting of the deceased in the suicide note and her FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 33 of 38 register of beauty culture course. Even if the FSL expert is not examined, it is per se admissible in evidence u/s 293 Cr.P.C. Therefore, the accused harassed Shashi @ Sushila to such an extent as to drive her to commit suicide and further the said suicide note is an immediate act of abetment, meaning thereby abetment is not missing in this case. There is a definite role of accused in abetment of suicide. In this context, I would place a reliance upon the judgement reported in the case of Kokkilagada Veeraswamy 2005 Cri. L. J. 869 (AP) therein at about 10:00 pm the accused, closely related to the deceased, requested her to serve him food and when she was about to serve food, the accused forcibly closed her mouth and committed rape on her. On the next day at 5:00 am, the girl committed suicide by pouring diesel oil and setting fire to herself. The accused was convicted and sentenced for the offence u/s 306 and 376 IPC. Where the dying declaration categorically stated that the accused (motherinlaw) maltreated her and taunted her for bringing insufficient dowry owing to which she took the extreme step of burning herself, the conviction u/s 306 IPC was upheld. In this context, a reliance is also placed upon the cases Nirmala Devi 1983 Crl. L. J (NOC) 203 (P&H); Rukma 2001 Cri. L. J 596 (Raj); Mohd. Hoshan (2002) 7 SCC 414; 2002 Cri.L. J. 4124 FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 34 of 38 (SC); AIR 2002 SC 3270 & 2002 7 JT 238. In the present case, Prosecution has examined 11 witnesses out of which PW5 is the star witness who has categorically deposed against the accused. Therefore, nonexamination of the inlaws of the deceased cannot be fatal to the Prosecution case. If the accused was detained in the PS and later on falsely implicated in this case as per his statement u/s 313 Cr.P.C., then what prevented him to lodge a complaint in this regard later on. The aforesaid judgements relied upon by the Ld. Defence counsel are not applicable to the facts and circumstances of the present case.
25. Thus, in view of my aforesaid discussion, I am of the considered opinion that Prosecution has been able to prove its case against the accused beyond reasonable doubt. I, therefore, hold the accused namely Raj Kumar @ Bindu guilty and convict him u/s 306 IPC.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT ON 30042012 FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 35 of 38 IN THE COURT OF SH. YASHWANT KUMAR: ADDL SESSIONS JUDGE03: NW : ROHINI : DELHI SESSIONS CASE NO. 58/11 FIR No. 475/06 P.S. Bawana U/S: 306 IPC STATE Versus Raj Kumar @ Bindu s/o Banwari Lal r/o village Nangal Dewat, H. no. 210, near IGI Airport, Delhi Order on Sentence
1. Arguments have been heard from Ld. Defence counsel as also from Ld. APP for State. Ld. Defence counsel has argued that convict is a unmarried young boy of 33 years age, his father has already expired and his mother is about 62 years of age and suffering from many diseases. The Ld. Counsel for the convict has further argued that keeping in view the age and conditions of the convict, he may be given the benefit u/s 4 of Probation of Offenders Act, 1958 taking lenient view. In support of his arguments, Ld. FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 36 of 38 Counsel for convict has relied upon the judgements reported as Rajeshwar Vs. State of Haryana, P&H High Court 2010 (2) RCR (Criminal) 327; Jagsir Singh & Anr. Vs. State of Haryana, 2004 (2) CC cases 366 (P&H); Sukhdev Singh alias Sewa Vs. State of Punjab, 2010 (2) RCR (Criminal) 544; Dharam Pal Vs. State of Punjab 2010 (4) RCR (Crl.) 920; Randhir Singh & Anr. Vs. State of Punjab, 2004 (3) JCC 1608; Harmohan Singh Vs. State of Haryana, 2011 (2) RCR (Criminal) 419 (P&H); Nishan Singh Vs. State of Haryana, 2011 (2) RCR (Criminal) 353; Dammu Sreenu Vs. State of AP, 2010 III AD (SC) 107; D Ethiraj Vs. Secretary to Govt. & ors., 2012 (1) CC Cases (SC) 11; Satish Kumar Batra & ors Vs. State of Haryana, 2009 (2) JCC 1341 and Narwinder Singh Vs. State of Punjab, 2011 (1) RCR (Criminal) 427.
2. The Ld. APP for State has argued that convict should be given appropriate sentence as per law. In support of his arguments, he has relied upon the judgement reported as Sudarshan Kumar Vs. State of Haryana, 2011 CRI. L. J. 4364.
3. Report regarding period of accused in judicial custody has also been received which reveals the total custody period of accused in this case as 2 years, 10 months and 26 days. In view of the above arguments of the Ld. Counsel for the convict and the FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 37 of 38 arguments led by the Ld. APP as well as the judgements relied upon by them, the ends of justice would meet if the convict is sentenced to the period already undergone by him. Convict be released if not wanted in any other criminal case. Copy of judgement and order on sentence be given to the convict free of cost. File be consigned to Record Room.
(YASHWANT KUMAR) ASJ/NW03/ROHINI/DELHI ANNOUNCED IN OPEN COURT ON 31052012 FIR No. 475/06; State Vs. Raj Kumar @ Bindu Page 38 of 38