Delhi District Court
State vs Sanjay Paswan on 2 March, 2013
Sessions Case No. 29/3/10 FIR No. 29/2010 State Vs Sanjay Paswan Police Station Nihal Vihar Under Section 302 IPC 02.03.2013 Pre: Ld. APP for the state. Convict Sanjay Paswan in JC. Ld. Counsel Dr. Rudra Narain for convict. Arguments on sentence heard, vide separate order placed along side in the file, I award sentence to accused / convict Sanjay Paswan to serve rigorous imprisonment 'for life' for the offence u/s 302 IPC for committal of murder of his step daughter deceased Sangeeta and fine of Rs.10,000/ in default one year further R.I. Fine not paid. Copy of the judgment and Order on Sentence be given to the accused forthwith. File be consigned to record room. (RAJ KAPOOR) ASJ02/West Distt THC : Delhi 1 IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI. Sessions Case No. 29/3/10 FIR No. 29/2010 State Vs Sanjay Paswan Police Station Nihal Vihar Under Section 302 IPC ORDER ON THE POINT OF SENTENCE 02.03.2013 Pre: Ld. APP for the state. Convict Sanjay Paswan in JC. Ld. Counsel Dr. Rudra Narain for convict. Arguments on sentence led by Ld. APP at length. During the course of arguments, he submits that accused has been convicted for the offence u/s 302 IPC for committing murder of his step daughter. Ld. APP further submits that a severe punishment be awarded to the convict as he as committed heinous crime against woman. Contrary to the submissions of Ld. APP, ld. Counsel for convict submits that accused is very poor person. He has a wife namely Vidyawati and two sons namely Kapil and Shivang. Ld. Counsel further submits that convict is the only bread earner in his family. On these grounds ld. Counsel submits that minimum sentence and fine may kindly be imposed taking leniency at the time of awarding the sentence. 2 I have given careful consideration to the submissions of Ld. APP for the State and the ld. Counsel for accused/ convict Sanjay Paswan. The sentence prescribed under section 302 IPC is either 'death sentence' or the 'life imprisonment' and fine. I find it inexpedient to award the death sentence to the accused / convict due to the reasons that this case is not covered in the category of 'rarest of rare' case. So, to my view ends of justice will be met if accused is sentenced to serve rigorous imprisonment 'for life' for the offence u/s 302 IPC for committal of murder of his step daughter deceased Sangeeta and fine of Rs.10,000/ in default one year further R.I. Therefore, I award sentence to accused / convict Sanjay Paswan to serve rigorous imprisonment 'for life' for the offence u/s 302 IPC for committal of murder of his step daughter deceased Sangeeta and fine of Rs.10,000/ in default one year further R.I. Accordingly, accused Sanjay Paswan is awarded a sentence to serve rigorous imprisonment 'for life' for the offence u/s 302 IPC for committal of murder of his step daughter deceased Sangeeta and fine of Rs.10,000/ in default one year further R.I. Fine not paid. Copy of the judgment and Order on Sentence be given to the accused forthwith. ANNOUNCED IN THE OPEN COURT ON THIS 02.03.2013 (RAJ KAPOOR) ASJ02/West Distt THC : Delhi 3 IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI. Sessions Case No. 29/3/10 Assigned to Sessions. 01.06.2010 Arguments heard on 12.02.2013 Date of order. 23.02.2013 FIR No. 29/2010 State Vs Sanjay Paswan s/o Rajender Paswan r/o H152, Laxmi Pak, New Delhi. Police Station Nihal Vihar Under Section 302 IPC JUDGEMENT
This is a case where accused Sanjay Paswan being step father of Sangeeta (since deceased), strangulated her with a wire on the intervening night of 15.02.2010.
1. Briefly facts of the case are that PW2 Smt. Rekha was having one son namely Vijay and three daughters namely Sangeeta (since deceased), Manisha and Rupa from her previous marriage. After the death of previous husband of PW2 Smt. Rekha, she along with her children was brought from Madhubani, Bihar by her Devar who had left them in Delhi, saying that PW2 Smt. Rekha should earn on her own and live herself in Delhi.
2. After reaching in Delhi, PW2 Smt. Rekha started working in a plastic 4 factory where accused also used to work. Accused made a proposal before PW2 Smt. Rekha to marry her and assured her to bear all the expenses and to provide a house for Smt. Rekha and her children. Before 7 years from 15.02.2006, PW2 Smt. Rekha married with accused and started living along with her children. A child was born to PW2 Smt. Rekha from accused, before four years from 15.02.2010. Accused did not disclose to PW2 Smt. Rekha that he was previously married and marriage was still subsisting.
3. About 10 days prior to 15.02.2010 Sangeeta, deceased (daughter of Smt. Rekha) told to her mother Smt. Rekha, that accused was having an evil eye upon Sangeeta. He asked Sangeeta to marry with him and also stated that if Sangeeta agrees to marry then he would bear all the expenses of her mother, her brother and sisters, otherwise he would not give any money for household expenses. All these facts were narrated to PW2 Smt. Rekha by Sangeeta.
4. About 5 7 days prior to 15.02.2010, it was stated by Sangeeta (since deceased) to her mother that step father i.e. accused Sanjay has stated her that she was not doing right things with him. After hearing all these, PW2 Smt. Rekha raised hue and cry and also fought with accused Sanjay Paswan and compelled him to fix the marriage of 5 Sangeeta thinking that once Sangeeta is married, all her tensions would be finished and that is why marriage of Sangeeta was fixed for 16.02.2010.
5. On 15.02.2010, accused had gone to the market to buy some goods for the marriage of Sangeeta and he returned back at the house at about 12 Midnight, at that time PW2 Smt. Rekha, her daughters Rupa, Manisha and Sangeeta, Rampari (Mother of Smt. Rekha), accused's sister and Chachi were sleeping in one room. In the night, on hearing some noise, PW1 Rupa, aged about 5 years, saw from under the curtain that accused was dragging Sangeeta to another room. Rupa got awakened her bua i.e. sister of accused and narrated the same but she asked Rupa to go for sleeping. Rupa heard shrieks of Sangeeta.
6. In the morning of 16.02.2010, PW2 Rekha did not find Sangeeta inside the room. She found that adjoining room was found latched from outside. She went there and saw that dead body of Sangeeta was lying inside that room, having a mark over her throat. Accordingly, case was registered and after investigation accused was arrested on 18.02.2010 and booked for the offence u/s 302 IPC.
7. After completion of the investigation challan was filed in the court of Ld. 6 MM. After committal proceedings, matter was assigned to the court of Sessions on 01.06.2010 and charge for the offence punishable under section 302 IPC was framed against accused on 12.07.2010 by my ld. Predecessor to which accused pleaded not guilty and claimed trial.
8. To prove and substantiate its case prosecution has examined 21 witnesses namely PW1 Rupa - last seen evidence, aged about 5 years old; PW2 Smt. Rekha - mother of deceased and second wife of accused Sanjay Paswan; PW3 Vijay - formal witness who identified the dead body of his deceased sister; PW4 SI Mahesh Kumar - formal witness - he prepared scaled site plan of the place of incident vide Ex.PW4/A; PW5 Ct. Pawan Kumar formal witness he delivered five envelops to the senior officers on 16.02.2010; PW6 Ct. Harish - he accompanied the IO / SHO on 16.02.2010 at the spot; PW7 Ct. Suresh Kumar he accompanied the IO in the arrest of accused on 18.02.2010; PW8 HC Rakesh Kumar - formal witness being MHC(M) at PS Nihal Vihar; PW9 Dr. Deepak Sharma - material witness since he conducted postmortem on the dead body of deceased and he also gave subsequent opinion on one wire through which deceased was strangulated vide his report Ex.PW9/A to PW9/C; PW10 Ct. Rajesh Kumar he took the dead body of deceased to SGM hospital mortuary and got preserved the same there; PW11 HC 7 Devender Singh he accompanied the IO/ SHO in the arrest of accused and in subsequent proceedings after the arrest of accused on 18.02.2010; PW12 Ct. Devender Singh Deshwal formal witness he had taken viscera box to SGMH mortuary Mangolpuri and he also deposited five sealed parcels to FSL Rohini; PW13 SI Sugreev Singh he reached at the spot firstly on 16.02.2010 on receiving DD no.31 B; PW14 W/ HC Sudesh - formal witness being duty officer - she got exhibited the copy of the FIR as Ex.PW14/A; PW15 Ins. Jai Singh - Investigating officer; PW16 Ms. Poonam Sharma, Sr. Scientific Officer, Biology, FSL Rohini; PW17 Amar Pal Singh , Sr. Scientific Officer, Chemistry, FSL; PW18 Ajay - formal witness neighbour of deceased- who stated that marriage of Sangeeta, deceased was fixed with Kishan, brother of Tula Singh, who happens to be his brother inlaw (Jeeja); PW19 Nihal Singh; PW20 Dr. Manoj Dhingra - he also conducted postmortem on the dead body of deceased Sangeeta and he also gave subsequent opinion after having examined the ' wire' and PM report vide Ex.PW9/C;
and PW21 Ashish Aggarwal , Civil Judge , who recorded statement of PW1 Rupa being minor u/s 164 Cr. PC.
9. For the sake of brevity and convenience let the testimony of PW1 Rupa, aged about 5 years old, be reproduced verbatim, which is as 8 under: "In order to ascertain whether this witness is free from external pressure and is not under undue influence force or coercion and whether she understand the sanctity of oath, certain questions are being put to her by this court.
Q1 What is the name of your father?
Ans. Sanjay.
Q2 Have you ever gone to school?
Ans. I have gone to Govt. School and I studied up to 3 rd , still I am studying in 3rd class.
Q3 Where you come and for what purpose?
Ans. I had come to the court to depose the truth.
Q4 What is truth?
Ans. Who does not speak lie is truth.
Q5 How many brothers and sisters you have?
Ans. I have four brother and sisters.
From the aforesaid answers the witness is
understand the difference between the true and false and she is competent witness to administered the oath.( Court Observation).
On S.A. The incident had taken place on 19th and it was winter season. We all were sleeping in a room. I have heard some noise and my Buwa was also sleeping in the same room and there was curtain in the room and hence I could see under the curtain from the floor where I was sleeping that my father was dragging my sister Sangeeta. I woke up and my Buwa told me to sleep and there could be someone else. My father Sanjay was wearing black jeans and white jercy. My father Sanjay , accused present in court today has dragged my sister in the adjoining room. In the morning Sangeeta was not in our room and she was found in the other room lying dead in the room where my father had dragged her.
(At this stage a envelope sealed with seal of AA which is attached in the judicial file is opened and the statement u/s 164 Cr.P.C recorded by Ld. M.M. Sh. Ashish Agarwal, is taken out.) The statement is shown to the witness and the witness identifies her signatures at point A, A1 , A2 on her statement Ex. PW1/A. It is correct that the incident relates to the intervening night of 15/16.2.2010. There was no door in my room or in the adjoining room where Sangeeta was dragged by Sanjay. I had also heard the Shriek of Sangeeta.
XXXXXXBy Sh.Subhash Chauhan Counsel for the accused.
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I am studying in school in class 3. There are four rooms in the house in which I live. I live in one room and my Nani lives in the other room and three rooms are empty. Police has made inquiries from me on the day of the incident. A bulb outside was lighted when I told my Bua that someone was there. I have not told anything to my mother at night but I have told her all the facts in the morning. At that time in the house my brother, my sister, my mother, my bua and some relatives from my father"s side were present in the house. I do not know why the relatives had gathered in the house. Police had brought me once in the court in their vehicle. Police had not tutored me in the Gypsy as to what I had to say before the Magistrate. It is incorrect to suggest that I have been tutored by the Police yesterday and today as to what I had to depose today in court. It is incorrect to suggest that I have been tutored by the Police as to what to say before the Magistrate. It is incorrect to suggest that I have not seen my father dragging my sister Sangeeta or that I had seen somebody else."
Having perused the testimony of PW1 Rupa, minor girl it has come on record that lastly she had seen the accused with deceased Sangeeta, while he was dragging her. No contrary evidence to this effect has come on record in her crossexamination.
10.PW2 Smt. Rekha came to the witness box and deposed that on 15.02.2010 accused Sanjay had gone to the market to buy some goods for the marriage of Sangeeta which was to be held on 16.02.2010. She had fixed the marriage of Sangeeta in Rajasthan. Accused Sanjay had come back to the house at about 12:00 midnight. At that time she along with her daughter Roopa; Radhika who happens to the sister of accused; Chachi of accused; and her another daughter Manisha : and her mother Rampari had gone off to sleep in one room as she was tired.
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11.She further deposed that her younger daughter Roopa had got up and told her Bua that Sanjay had come. Roopa told that Sanjay at that time was wearing black Jeans and White Jersey. She told this fact to her Bua who told her to sleep and there could be someone else. At that time there was bulb outside which had already been lighted (Bulb Jal Raha Tha). Roopa was fearful of her father accused Sanjay and she had gone to sleep. She further deposed that Roopa told her that Sanjay Paswan had dragged Sangeeta and she had heard her shrieks. Sangeeta was dragged to the adjoining room. In the morning she saw Sangeeta was not present in the room. She was found dead in the adjoining room and the room was latched from outside. Sangeeta was murdered by a thin wire which was later on recovered from the house by Sanjay. Sangeeta was having a mark over her throat which was of the wire. Later on the Police had arrived and the Police had recovered the wire at the instance of the accused from the house. Sangeeta had told her about ten days prior to her death that accused Sanjay is having an evil eye on her and Sanjay had also told Sangeeta that she should marry him. Sangeeta also told that Sanjay used to tell her that if she is agreed to marry him then he would bear the expenses of the children and the family otherwise he would not give any money to the family for household expenses. After hearing all this she had fixed the marriage of Sangeeta thinking that once Sangeeta is married off all my tensions 11 would be finished and that is why she had arranged her marriage quickly. The accused had pointed out the place at which the wire was kept and the wire was seized vide seizure memo Ex PW 2/A and she put her thumb impression at point A.
12.PW2 / She further deposed that on 17/02/2010 in Sanjay Gandhi Hospital she had also identified the dead body of her daughter vide memo statement Ex PW2/B. After Postmortem the dead body was handed over to her and she did her cremation. She gave statement to the Police vide Ex PW2/C. Further, perusal of the testimony of PW2 it has come on record that after apprehension of accused Sanjay he had made a disclosure statement Ex PW2/D and the pointing out memo is Ex PW2/E . She further deposed when the accused was brought to the house after his apprehension by the Police. He had pointed out the room where he had murdered Sangeeta.
13.PW2 further deposed that she had come from Madhubani Bihar and started working in a plastic factory. The accused was also working in the factory. The accused made an offer to her that she should marry him and that he would pay all the expenses of her four children and would also provide a house. She married the accused about seven years ago and started living with him. She further deposed that she 12 has a four year old son with the accused. Thereafter, accused refused to give household expenses and told that he would marry her daughter Sangeeta. The accused stopped paying the expenses and consequently she started working in the factory to earn for livelihood. The living premises was given to them by the owner of the factory.
14.She further deposed that relatives of accused had assembled in the house for the purpose of the marriage of daughter Sangeeta but in the morning on 16.02.2010 all the relatives of accused including his sister ran away from the house after seeing the dead body of Sangeeta. The Police had apprehended the accused on its own. She further deposed that she had also noticed that nara (dori) of the lower portion was found open and accused had also committed sexual intercourse with her daughter Sangeeta.
15.This witness further deposed that she is having one son Vijay, one daughter Manisha and another daughter Roopa from her previous marriage. Her husband had expired and she had married the accused for the second time. She was brought from Madhubani by her Devar who left her in Delhi saying that she should earn on herself. She further stated that even the wife of accused had come to her and offered Rs.2025,000 saying that she was willing to bear the expenses 13 of the family and that she should help her in getting the accused released. She stated that she does not know the fact that accused was already married from before. The wife of the accused is still threatening her on the way. This witness / PW2 identified the case property comprising of wire as Ex P1. This witness has been cross examined at length. In the crossexamination it has come on record that name of the first husband was Deepak. It has also come on record that she and accused both had contributed to buy goods and other articles for the marriage of her deceased daughter. The landlord of the house had called the Police. Her statement was recorded by the Police at the spot. She had told Sanjay's sister that her husband Sanjay Paswan was having an evil eye on her daughter Sangeeta. She had also observed that her salwar was open.
16.PW3 Vijay, who happens to be the brother of deceased Sangeeta stated that on 17.02.2010 he identified the dead body of his deceased sister vide identification statement Ex.PW3/A. This witness has not been crossexamined.
17.PW4 SI Mahesh Kumar is a formal witness. He prepared scaled site plan of the place of incident vide Ex.PW4/A. This witness has not been crossexamined.
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18.PW5 Ct. Pawan Kumar is also formal witness. He delivered five envelops to the senior officers on 16.02.2010. This witness has not been crossexamined.
19.PW6 Ct. Harish accompanied the IO / SHO on 16.02.2010 at the spot. He deposed that on 16.02.2010 he was posted at PS Nihal Vihar and was working as Operator to the SHO. He was present in PS when a call was received regarding a girl who had died. He along with the SHO and the Police Staff went to the spot at plot no.H152 Laxmi Park Nihal Vihar in the Official Vehicle. When they reached the spot ASI Sugriv, HC Baljit and Ct.Rajesh were also present. He saw a dead body of a girl lying in one room. The IO inspected the body. He further deposed that Smt. Rekha the mother of the deceased girl Sangeeta met the IO and she identified the dead body of her daughter. IO recorded the statement of Rekha prepared a rukka and the same was handed over to him for registration of the present case. He went to the PS and got the present case registered. He returned back to the spot and handed over copy of FIR and rukka back to the IO. The Police also search for the accused at ISBT, New Delhi Railway Station, Old Delhi Railway Station but the accused could not be found on that day. IO also recorded his statement. This witness has been cross examined. No contrary evidence has come on record. 15
20.PW7 Ct. Suresh Kumar accompanied the IO in the arrest of accused on 18.02.2010. Having perused his testimony it has come on record that he has got exhibited the seizure memo of pulandas which were handed over to him in the hospital as Ex.PW7/A, arrest memo of accused as Ex.PW7/B and personal search memo as Ex.PW7/C. This witness has been crossexamined by defence counsel. I have perused the same. No contrary evidence has come on record.
21.PW8 HC Rakesh Kumar is a formal witness being MHC(M) at PS Nihal Vihar. He came to the witness box and deposed that on 17.2.2010 Insp. Jai Singh handed over four sealed pullandas alongwith a sample seal . He made entry in register No. 19 at Sl. No.
32. He further deposed that on 18.2.2010 Insp. Jai Singh again handed over two sealed pullandas along with one sample seal along with personal search memo of accused Sanjay Paswan. This witness made entry in register No. 19 at Sl. No. 33 on 19.2.2010, Insp. Jai Singh handed over one sealed pullanda, he made entry at Sl. No. 34. This witness again deposed that on the same day Insp. Jai Singh handed over one sealed pullanda, he made entry in register No. 19 at Sl. No. 35. In this regard he brought original register No. 19 and got exhibited the photocopy of the same as Ex. PW8/A. This witness 16 further deposed that on 23.3.2010 a Viscera box was sent to FSL Rohini through Ct. Devender Kumar vide R/C No. 24/21/10. On 25.3.2010 five pullandas and one sample seal was sent to FSL Rohini, through Ct. Devender vide R/C No. 26/21/10. He made entry in register No. 19 in this regard at point A and result of viscera was deposited in Malkhana on 27.7.2010. He made entry at point B and result of five pullandas was received on 9.8.2010, and he made entry in this regard at point C. This witness further deposed that on 12.4.2010 one pullanda of wire was sent to SGMH Mortuary through IO for obtaining the opinion. He made entry in this regard at point D and this pullanda was again received on the same day. Photocopy of R/C no.24/21/10 is Ex. PW8/B and photocopy of receipt is Ex. PW8/C. Photocopy of R/C No. 26/21/10 is e. PW8/D. Copy of receipt is Ex. PW8/D. This witness has not been crossexamined.
22.PW9 Dr. Deepak Sharma is material witness since he conducted postmortem on the dead body of deceased and he also gave subsequent opinion on one wire through which deceased was strangulated vide his report Ex.PW9/A to PW9/C. This witness has deposed that on 17.02.2010 he was posted at Sanjay Gandhi Memorial Hospital, on that day he conducted the Postmortem on the dead body of Sangeeta aged 18 years and prepared detailed report 17 which is Ex PW9/A. This witness opined that she had died due to asphyxia, consequent upon ligature strangulation. Clothes of the deceased were sealed, vaginal swap was taken, blood gauze procured and Viscera was sealed which was taken and handed over to the Police after sealing the same. He got exhibited the FSL report Ex.PW9/B. As per record no common poison could be deducted. Postmortem report bears his signature. This witness further deposed that on 12.04.2010 IO of this case had produced a sealed Pullanda sealed with the seal GS. Pullanda which was opened and it was containing one wire. He examined the wire and opined that the ligature mark in Postmortem number 151/10 could be caused by the above wire. The wire is again resealed with the seal of SGMS. In this regard he got exhibited report as Ex PW9/C. This witness has not been crossexamined.
23.PW10 Ct. Rajesh Kumar took the dead body of deceased to SGM hospital mortuary and got preserved the same there.
24.PW11 HC Devender Singh accompanied the IO/ SHO in the arrest of accused and in subsequent proceedings after the arrest of accused on 18.02.2010.
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25.PW12 Ct. Devender Singh Deshwal is a formal witness in this case. He had taken viscera box to SGMH mortuary Mangolpuri and deposited five sealed parcels to FSL Rohini.
26.PW13 SI Sugreev Singh reached at the spot firstly on 16.02.2010 on receiving DD no.31 B. He deposed that on 16.2.2010 he was posted at PS Nihal Vihar. On that day on receipt of DD No. 31B, he alongwith Ct. Rajesh went at H. NO. H 152, Luxmi Park, Nihal Vihar, Delhi where HC Baljit met and stated that one lady had expired there. Thereafter, this witness along with HC Ranjit went inside one room in a plot and he found that one lady was lying dead on the kacha floor, she was wearing green coloured Salwar and pink colour Kurti. He formally inspected the deadbody. There were ligature mark on the neck of that lady. In the meanwhile SHO Insp. Jai Singh came at the spot. Insp. Jai Singh recorded statement of Smt. Rekha wife of Sanjay Paswan. Private photographer was called who took the snaps at the spot. IO recorded statement of photographer and thereafter he was relieved from there. This witness further stated that he also recorded statement of Rupa daughter of complainant Rekha. After recording statement of complainant IO made his endorsement on the same and gave Tehrir to Ct. Harish for getting the case registered. He was directed by the IO to make a written request to send the dead body to mortuary Sanjay 19 Gandhi Hospital through Ct. Rajesh Kumar. IO prepared site plan at the instance of complainant. Thereafter, he alongwith IO went ISBT Kashmere Gate, Anand Vihar and New Delhi Railway station in search of accused persons but they could not be traced. This witness further deposed that on 17.2.2010 he alongwith IO went at Sanjay Gandhi Hospital for getting the postmortem of deceased Sangeeta. After the postmortem Dr. gave certain articles in sealed condition and IO had taken the same into his possession vide seizure memo Ex.PW13/A. This witness has been crossexamined at length by defence counsel. I have perused the same. In the crossexamination it has come on record that he went to the spot of occurrence on a scooter. He did not mention the scooter No. in the DD 31B. Information was given to him regarding the occurrence. HC Baljit was in the beat area and i.e. why he reached at the spot. He stated that he did not state in his statement recorded by the IO u/s 161 Cr.P.C to the effect that private photographer was called. First and foremost he along with IO visited ISBT Kashmere Gate. He does not remember the time when we reached the ISBT Kashmere Gate then they went to Old Delhi Railway Station. They remained there for 3045 minutes. And lastly they went to ISBT Anand Vihar at about 7.30 pm and remained there for about 15 minutes and then they came back to PS. In the crossexamination it has also come on record that he does not 20 remember the date when his statement was recorded. Statement dated 16.2.2010 of this witness was shown to him and he corrected himself that this statement was recorded by the IO at the spot.
27.PW14 W/ HC Sudesh is a formal witness being duty officer. She got exhibited the copy of the FIR of the present case as Ex.PW14/A.
28.PW15 Ins. Jai Singh is the most material witness in this case being investigating officer. After having perused his testimony carefully it has come on record that on 16.02.2010 at about 11:30 AM, on having received DD No.31B, vide Ex.PW15/A, PW15 Insp. Jai Singh along with Ct. Harish and HC Tarif went at the place of occurrence i.e. H152, Laxmi Park, where PW13 SI Sugriv and Ct. Rajesh were already found present at the spot. PW15 Insp. Jai Singh found that dead body of a girl was lying inside a room and there was green coloured Salwar and cream coloured Kurti and brown coloured full sleeve jursey on the dead body and there was strangulation mark on her neck. He made enquiries from PW2 Smt. Rekha, recorded her statement vide Ex.PW2/C, made his endorsement on the same vide Ex.PW15/B and gave original tehrir to Ct. Harish for getting the case registered and accordingly FIR No.29/10 which is Ex.PW14/A was registered against accused. PW15 Insp. Jai Singh prepared site plan Ex.PW15/C. He 21 further deposed that dead body was removed from the spot to mortuary, SGM Hospital for postmortem by PW13 SI Sugriv Singh. On 17.02.2010, PW15 Insp. Jai Singh went to mortuary, SGM Hospital where he recorded statement of Vijay and Rekha regarding identification of dead body vide Ex.PW3/A and B. This witness further stated that he prepared inquest papers vide Ex.PW15/D and he also moved an application to conduct the postmortem on the dead body of Sangeeta vide his application Ex.PW15/A. After postmortem, concerned doctor gave four sealed parcel and one sample seal which IO had taken into his possession vide memo Ex.PW13/A and after the postmortem dead body was given to the relative of the deceased. Further, perusal of his testimony it has come on record that on 18.02.2010, PW21 Ashish Aggarwal, Ld. MM, recorded statement of Rupa (younger sister of deceased Sangeeta), under section 164 Cr.P.C., on the application of IO which is Ex.PW15/F. The statement is Ex.PW1/A and the copy of the statement under section 164 Cr.P.C. was given to IO is Ex.PW15/J. He has also stated that on 18.02.2010 at about 9 PM, accused was arrested from PBlock Chowk, vide arrest memo and personal search memo Ex.PW7/B and C. Accused was taken to hospital for medical examination and after his medical examination doctor gave two sealed parcel and one sample seal which IO had taken into his possession vide Ex.PW7/A. On 22 19.02.2010, disclosure statement of accused was recorded vide already Ex.PW2/D and IO prepared pointing out memo of the place of occurrence vide Ex.PW2/E. Subsequent to the disclosure statement, accused got recovered one wire measuring 36 inch from the roof, by which he strangulated Sangeeta. The wire has been identified and got exhibited as Ex.P1, which was kept in a cloth parcel and it was sealed with the seal of JS and was taken into possession through seizure memo Ex.PW2/A. The clothes Ex.P2 which he was wearing at the time of occurrence were also taken into possession through memo Ex.PW11/A. Testimony of this witness has not been challenged.
29.On 25.01.2010, PW16 Ms. Poonam Sharma, Sr. Scientific Officer (Biology), FSL Rohini, after having examined the exhibits gave report Ex.PW16/A. She has also not been crossexamined.
30.PW17 Sh. Amar Pal Singh, Sr. Scientific Officer (Chemistry), FSL Rohini, after having examined the exhibits on 23.03.2010 gave his report vide Ex.PW17/A. This witness has also not been cross examined.
31.PW18 Ajay is a formal witness being neighbour of deceased. He 23 stated that marriage of Sangeeta, deceased was fixed with Kishan, brother of Tula Singh, who happens to be his brother inlaw (Jeeja).
32.PW19 Nihal Singh is also a formal witness being photographer. He identified both the photographs as the same which were taken by him. He got exhibited the photographs as Ex.PW19/A and B. This witness has not been crossexamined.
33.PW20 Dr. Manoj Dhingra along with PW9 Dr. Deepak Sharma conducted postmortem on the dead body of Sangeeta vide his detailed report Ex.PW9/A and on 12.04.2010 on having received sealed parcels, he gave subsequent opinion regarding the wire vide his report Ex.PW9/C and Ex.PW20/A. This witness has been cross examined. No contrary evidence has come on record.
34.PW21 Ashish Aggarwal, Ld. Civil Judge came before the court and stated that he recorded statement of PW1 Rupa u/s 164 Cr. PC, being minor. He deposed that on 18.02.2010, he recorded statement of Rupa (younger sister of deceased Sangeeta), under section 164 Cr.P.C., on the application of IO which is Ex.PW15/F. The statement is Ex.PW1/A and the copy of the statement under section 164 Cr.P.C. was given to IO is Ex.PW15/J. 24
35.After completion of the prosecution evidence, statement of accused was recorded under section 313 Cr. P.C. in which all the incriminating evidence was put to the accused which he denied as false and incorrect with submissions that he is innocent and he has been falsely implicated in the present case. He produced defence witness namely DW1 Ms. Vidya Wati, who happens to be first wife of accused Sanjay Paswan and deposed that on the night of 15.02.2010, her husband Sanjay Paswan was with her at her residence. DW1 further deposed that on the night of incident accused was at her residence till morning and after that accused gone to his room where his other relative expected to gather for marriage of deceased, after reaching at his room he met his sister those were staying at the deceased house. They told to accused that his daughter is being murdered by someone and they suspecting him then he had not gone to place of incident. She has been crossexamined by ld. APP. She deposed that her husband was living with Smt. Rekha and her children for 1 ½ to 2 years. She has been crossexamined at length by ld. APP.
36.Arguments were heard at length from both the sides. Ld. counsel for the accused argued at length. He submitted that accused is innocent and he has been falsely implicated in this case. ld. Counsel 25 further argued and submitted that applicant/ accused is in judicial custody since the date of his arrest i.e. 18.02.2010. Ld. Counsel again argued and submitted that case of prosecution completely relied upon the main last seen witness PW1 Rupa daughter of complainant PW2 Rekha. PW1 Rupa was not cross examined on vital material facts. It is also argued and submitted that PW1 Rupa, has deposed before court that the incident took place on 19th of month and it was winter season while the date of incident was intervening night of 15/16.02.2010. PW1 further deposed before court that she heard the noise/shriek but other members sleeping in the same room had not mentioned anywhere that they heard any noise in the night of 15.02.2010.
37.Ld. Counsel for the accused again argued and submitted that PW1 deposed before court that there was a curtain in the room and she could see under the curtain from the floor where she was sleeping that her father was dragging her sister Sangeeta. It is more pertinent to mention here that PW2 Rekha had not mention in her statement that accused Sanjay Paswan had returned in the night of incident occurrence. Hence, it can be safely presumed that Sanjay Paswan did not return home and it was not Sanjay Paswan who had dragged the deceased Sangeeta from the room.
26
38.Again ld. Counsel for the accused argued and submitted that the charge/allegation leveled against the accused by the prosecution is nothing but a figment of wild imagination of the concerned police officials and complainant as no evidence on record shows the involvement of accused in the present case. The allegations leveled against the accused are affected from the interior and exterior motive of complainant as accused had stopped giving monthly expenditures to complainant PW2 Rekha. The material placed on record is only verbal allegations and not proved beyond reasonable doubt. The motive set by the prosecution is not proved. The complainant had placed doubt on accused but the independent evidence appeared before court has not supported prosecution case. ld. Counsel for the accused further argued and submitted that weapon of offence is not proved before court and weapon not sent for FSL testing. The medical evidence does not support the story of dragging to deceased Sangeeta. There was no abrasion over the body of deceased while as per the prosecution story deceased was dragged for a distance of approximate 30 meter or approximate 100 foot over rough ground. The complainant had stated before the court that deceased Sageeta always accompanied by her when she left for her job or when she return from her job and in house there were 67 family members, this means deceased Sangeeta was always remained with some family member. But in postmortem report it 27 is revealed that deceased Sangeeta was not virgin and she was habitual of sexual intercourse. This clearly shows that there was someone who has close intimacy with the deceased Sangeeta and she was killed by that 'someone' on the intervening night of 15.02.2010 & 16.02.2010.
39.ld. counsel again argued and submitted that complainant Rekha deposed before court that her daughter deceased Sangeeta complained about her father only for verbal teasing and he never physical assaulted her. Complainant has set the motive before court that deceased Sangeeta was raped by her husband and then killed her. The allegation leveled is not proved as independent evidence narrating the different story. Complainant Rekha deposed in her statement under Section 161 Cr.P.C. that her daughter Km. Rupa told her that someone wearing the white pullover and black jeans was pulling her sister deceased Sangeeta from near bathroom. But the last seen witness PW1 Rupa had improved her statement when deposed under Section 164 Cr.P.C which was recorded after three days of murder and create doubt that she was tutored by her mother or police official. PW2 Rupa was not firm on her statement and her testimony is not supported by independent evidence.
28
40.Ld. counsel again argued and submitted that complainant Rekha was previously married and her husband left her and she started living with accused Sanjay Paswan in live relationship. Complainant having five children and all are emotionally attached with each other. Accused Sanjay Paswan was an outsider who living with them as a father. Hence the testimony of PW1 Rupa the last seen witness and PW2 Rekha has to be scrutinized carefully before announcing judgment. Close relationship and affection towards the deceased which would naturally have a tendency to exaggerate or add facts which may not have happened or been stated to them at all. Therefore, the courts has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it. In support of his contention he has relied upon the citation : 'Sharad Birdichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 (1636) : 1984 CrLJ 1738 (1753) : (1984) 4 SCC 116 (149150)' wherein it has been observed that : "The conditions that were set out are the following:
(a)Whether the accused was known to the identifying witness at the 29 time of the offence.
(b)The length of time the witness took to identify the accused.
(c)The distance from which the witness identified the accused.
(d)The source of light that was available at the material time."
41.Ld. counsel again argued and submitted that star witness stated under Section 164 Cr.P.C. that she heard the noise of her sister deceased Sangeeta. She woke up. She had seen that her father Sanjay and her sister are in another room. There was no door in that room and in the room of PW1 Rupa where she was sleeping. There was a small curtain on the door. She had seen that her father was taking her sister in another room. Her father was wearing white shirt and black jeans. Prosecution failed to place that curtain as a exhibit before the court. She had seen that her father and sister deceased Sangeeta were in another room. The another room where the deceased Sangeeta was found dead is at the distance of approximate 100 foot from the room where the witness PW1 Rupa was sleeping along with other family members. It is impossible to see from the room where the PW1Rupa was sleeping that the deceased Sangeeta was lying dead in another room. The site plan/map showing all the rooms build in one direction and not opposite of each other.
42.Ld. Counsel for accused again submitted that it is not clarified by the witness that where she had seen her father taking her sister (a) from 30 outside of the room where the PW1 Rupa was sleeping or (b) from inside the room where the PW1 Rupa was sleeping or (c) near or outside of the room where the deceased Sangeeta was found dead or
(d) from near the bathroom. If, option (a) is chosen by the PW1 Rupa then as per the statement of PW1 Rupa there was no door on the room but a curtain was hanging in such circumstances whether it is feasible for PW1 Rupa that she can see the face of her father? Mostly in houses if some curtain hanged on the door then the lower portion of curtain kept approximate 23 inch above of the ground. Whether it was possible for PW1 Rupa that she can see the face of her father under the circumstance (i) when her father taking away her sister deceased Sangeeta by walking (ii) when dragging deceased Sangeeta. In both the situation PW1 Rupa cannot see the face of person taking away deceased Sangeeta without lifting the curtain because she was only 5 years old and she did not deposed that she was standing. PW1 Rupa can only see the feet or lower portion of wearing apparels of accused in first situation and lower portion of wearing apparels of accused and body of deceased Sangeeta in second situation if there is sufficient light for recognition. He further submitted that in option (b) if deceased was taken by her father from inside the room where she was sleeping then it is also not feasible to see the face of her father because it was dark in the room and supposed, accused taken 31 deceased from inside the room and then killed her in another room this theory is not supported by the medical evidence. That in postmortem report it is reported that the Urinary Bladder and Rectum was empty. The stomach contains 100 ml of semi digested food. This shows that deceased was not sleeping when she went with her known friend with her own will after she attended the nature call.
43.ld. counsel again argued and submitted that option (c) from near or outside of the room where the deceased Sangeeta was found dead. As per site plan/map all the rooms are built up in one direction and not opposite to each other. Hence if a person is sleeping in any room then he cannot see any other person in another room without coming out from that room and also the distance from that room where the witness was sleeping to where the body of deceased was found is approximate 100 foot.
44.ld. counsel again submitted that option (d) from near the bathroom The size of the room where PW1 Rupa and her family members were sleeping is approximate 300 cm. or 3.0 meter and width is 455 cm or 4.55 meter. The bulb of 40 or 60 w was lighting on the corner of the room at 8 foot height and the door where the curtain was hanging was in middle or at 1.5 meter. In front of the door there is bathroom at a 32 distance of approximate 595 cm or 5.95 meter. Now if PW1 Rupa was sleeping opposite of door means her head was near the wall facing the door then she might be sleeping at a distance (3 meter + 5.95 meter) of approximate 8 meter or approximate 26 foot from the door of bathroom. Now question before court is that can PW1Rupa see the face of the person standing at a distance of 26 foot while there is a curtain on door which is 23 inch above from the ground? The bulb lighting of 40 w at a height of 8 foot. Because there is no dragging mark upon the dead body it means deceased was not dragged and had gone on foot. PW1 Rupa cannot see the face of person taking away her sister Sangeeta by walking when alleged that she was awake but lying on floor?
45.Ld. counsel for accused again argued and submitted that PW1 Rupa also stated that she had heard the voice of her sister but no one in the room where she was sleeping heard the voice or in adjoining two rooms where 4 bachelors in next room and a married couple in another room were sleeping had heard the voice of deceased Sangeeta. During cross examination PW1 Rupa deposed that she told to her Bua that someone was there. She did not name her father at that time but on tutoring she mentioned the name of her father. The fact that someone was there corroborated with the contents of FIR or what PW1 Rupa told to her mother, as per her mother in FIR/Section 161 Cr.P.C. 33
46.ld. counsel further argued and submitted that it is pertinent to mention here that PW1Rupa age about 5 years old, is a child witness and her statement not taken as whole without corroboration with the independent evidence as the authority ruled. Again in support of his contentions ld. Counsel has relied upon the citation: Even if the child be the only witness of his mother being murdered if the circumstances indicate, it is not safe to rely on him. Corroboration is essential. Bhag Singh v. state of Haryana, 1979 CrLJ (NOC) 100 (Pun.) : (1979) 6 CrLJ 108 :
81 Punj LR 265; Mobeni Minji v. Union Territory, 1982 CrLJ (NOC) 39 (Gau).
When there is scope for tutoring, it is hazardous to act upon the uncorroborated testimony of a child witness. Gunduchi Patnaik v. state of Orissa, 1985 CrLJ 645; Sukumar Khadia v. state of Orissa, (1986) 2 Crimes 540.
Courts must carefully consider whether the child witness was under influence of any tutoring. Chhagan Dame v. state of Gujarat, 1995 SCC (Cri) 182 : AIR 1994 SC 454 : 1995 SCC (Cri) 182.
Conviction on evidence of child witness without corroboration is not proper. Bikha v. state of Gujarat, AIR 1971 SC 1064 :
1971 CrLJ 927 : (1972) 4 SCC 48; Director of Public Prosecution v. Hester, (1972) 3 All ER 10576; Ram Singh v. state, 1976 CrLJ 667 : 1975 Raj. LW 415.
Court should not act on uncorroborated testimony of child witness whether sworn or unworn. Dilli v. state of M.P., 1971 MPLJ 667: 1971 Jab LJ 628; Mahadevappa v. state of Karnataka, (1978) 1 Kant LJ 183; Munna v. state of U.P., 1985 CrLJ 1925 (1927): (1985) 2 Crimes 107 (108109).
Witnesses of tender age are not generally regarded as trustworthy as often there is a tendency for them to repeat glibly a version hammered to their mind. Witnesses of tender age do not possess the discretion to distinguish between what they have seen and what they have heard and so prudence requires 34 that Court should be ultra cautious in placing absolute reliance on ocular testimony of a solitary child witness. Appa V. state of Kerala. (1989) 3 Crimes 355."
47.Ld. counsel for accused again argued and submitted that PW1 Rupa was not scrutinized before the court. An application under Section 311 Cr.P.C. put up before the Hon'ble Court but the witness not called before the court for further examination due to which various facts remained unanswered. The most important question is that whether PW1 Rupa actually had seen her father taking away her sister deceased Sangeeta in empty room when an ordinary bulb was lighting outside of room? The question before court is that whether it is possible for a human being that under the curtain from the floor he/she can identify clearly a human face up to the distance while the person is inside the room and there is a curtain hanging on the door while all the rooms are in same direction?
48.Ld. counsel again argued and submitted that it is pertinent to mention here that in the absence of sufficient material on record the identification of accused is doubtful, and he relied upon the citations :(State of Punjab v. Balraj Singh Chhajju, 1978 Cr.L.R. 118 at p. 120; Harish Shundhi v. State of Bihar, 1997 (2) East. CR.C 46 at p. 51 (Pat.).
35
Where the incident takes place in night and there are infirmities in the evidence of identification of the accused persons the prosecution cannot succeed. (State of Bihar v. Brahmdeo Prasad, 1980 Cr.L.J. 406 at p. 406 S.C. :A.I.R.. 1980 S.C. 551).
"When a witness, who is only witness against the accused to prove a serious charge of murder, can modulate his evidence to suit a particular prosecution theory for the deliberate purpose securing a conviction, such a witness cannot be considered as a reliable person and no conviction can be based on his sole testimony. (Badri v. State of Rajasthan, Badri v. State of Rajasthan (S.C.) ; Shivaji Sahabrad Bobde v. State of Maharashtra, 1973 C.A.R. 410 (S.C) ; Vishwanath Shanthamallappa Dhule v. State of Karnataka, 1997(2) East CR.C. 766 At P. 767 (S.C.)"
1. Ld. counsel for accused again argued and submitted that weapon of offence exhibit Ex. P1 produced before court and court observed that there was no blood stains on the wire. The wire, weapon of offence was not sent for FSL testing and prosecution has not proved the weapon. Court observed no blood stains on the weapon of offence. The weapon of offence recovered on disclosure statement of accused from the open space accessible to all resident of three families and the main gate was not installed. Entry to said premises was free to any passerby. Reliance placed upon: (1) No blood detected on the weapon
- No relevancy in the case. (1996 Cri.L.J. 1790). (2) Weapon recovered from the open space accessible to all - Not reliable that the same was got recovered by the accused on disclosure statement 1983 (1) Crimes, 984 SC. 1991 (1) Crimes, 387). (3) Recovery of the 36 weapon of offence on disclosure statement from the joint possession of all the family members - Possibility of keeping the said weapon by any other family member cannot be ruled out. Only a foolish will keep the blood stained weapon in his house when he has sufficient opportunity to destroy that. 1994 (3) Re. C.R. 622, SC.
2. ld. counsel for accused again argued and submitted that as DW1 deposed before court that on the night of incident accused was at her residence till morning and after that accused gone to his room where his other relative expected to gather for marriage of deceased, after reaching at his room he met his sister those were staying at the deceased house. They told to accused that his daughter is being murdered by someone and they suspecting him then he had not gone to place of incident.
3. On these grounds, ld. Counsel for accused submitted that all the material witnesses have been examined and nothing comes out against the accused except general allegation, alleges due to suspicion and bitter relation in between complainant and accused. The prosecution has not proved its case beyond any reasonable doubt. The story of prosecution is concocted and has not been proved by prosecution. The independent medical evidence available on record 37 indicates a different story. When motive has not been proved and there is discrepancy between the testimony of eye witness and medical evidence, furthermore when the prosecution story is found improbable the accused cannot be roped by the charge of murder. Makhan v. state of Rajasthan, 1989 CrLJ (NOC) 14 (Raj): (Raj) LW 425.
4. Ld. counsel further submitted that it is more pertinent to mention here that in Sharad Virdhi Chand Sarda v. State of Maharashtra, (A.I.R. 1984 S.C. 1622.), a Bench of Supreme Court has chosen to state the conditions which must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established. It has said therein: (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established, the circumstances concerned "must or should" and not "may be" established. - In present case prosecution has been established a motive that deceased was raped and then murdered. But the independent evidence not proved the theory and motive not proved. A last seen witness who witnessed that deceased was taken or pulled or dragged by her father but the circumstances established has been not proved. The testimony of last seen witness has been not scrutinized. The testimony given by the last seen witness PW1 Rupa is neither feasible nor it proved by the prosecution on norms laid for identification in night.
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. - The facts established shows the different story and the facts revealed are consistent and indicates towards the innocence of the accused. The prosecution was unable to explain the facts established to prove the guilt of the accused. (3) The circumstances should be of a conclusive nature and tendency. - In present case the circumstances established are not conclusive in nature. The circumstances established are general and affected from the exterior and interior motive. The independent 38 evidence placed on record not proving the circumstances placed by the prosecution.
(4) They should exclude every possible hypothesis except the one to be proved. - In present case the second hypothesis indicates that accused is innocent and falsely implicated in this case. (5) There must be a chain of evidence complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. - In present case the chain of evidence is not completely established. The link evidence is missing. Prosecution has established a motive; motive a link evidence is not proved. The second circumstance established by the prosecution is last seen theory. The last seen theory is also consists lacuna since beginning of story to end. The last seen witness is not firm on her statement. Last seen witness has narrated a different story to her mother and before court a new story was narrated. The statement deposed before court by the last seen witness is not scrutinized on the norms laid down by the authority for identification in night. The circumstance established by the prosecution is weapon of offence which is not proved before the court. The fourth circumstance established by the prosecution is arrest of accused."
1. Ld. counsel for accused again argued and submitted that no link evidence was available to connect the accused with the offence of murder and FIR was lodged merely on suspicion by the complainant. There is no eye witness of the murder and circumstantial evidence indicate towards the involvement of some boy friend or lover of deceased who was having illicit relation with the deceased.
2. Contrary to it, Ld. APP argued and submitted that there is sufficient evidence on record to hold the accused guilty for the offence u/s 302 IPC. He submits that there is last seen evidence of a minor child, whose testimony cannot be overlooked. Ld.APP further argued and submitted that accused got recovered the wire through which he had 39 strangulated the deceased. All the material witnesses have supported their version. Ld. APP further submitted that if the contradictions are taken into consideration, these are minor type of nature which are attributable due to the long duration of time and memory of a human being. Ld. APP further argued and submitted that accused is a bad social element who firstly developed relation with the mother of deceased and then he wanted to develop illicit relation with deceased also, who happens to be his step daughter, if we presume that he was living with the mother of deceased. On these grounds, ld. APP submitted that accused be convicted for the offence u/s 302 IPC.
3. Having perused the testimonies of all the material witnesses I found some contradictions which are attributable due to the long duration of time and memory of a human being. However, no material contradiction has come on record which may affect the case of the prosecution. On minor type of contradictions the Hon'ble Supreme Court in case State of UP Vs Bhagwan AIR 1997 SC 3292: (1997) 1 SCC 19 made the following observations which are very relevant crucial and dominant in deciding the fate of the present case: "minor discrepancies in the evidence of the eyewitnesses are immaterial unless they demolished the basic case of the prosecution".
40 Observations made in the aforesaid case by the Hon'ble Supreme Court are exfacie indicative of the fact that when contradictions are minor the truthfulness of the witness cannot be discredited in all.
4. In the present case there is no direct evidence in full of the occurrence to hold the accused guilty. Therefore, the court has to resort the principles of circumstantial evidence in parts. To illustrate the scope and extent of circumstantial evidence it can be summarized in the following principles as reiterated by the Apex Court in 'Padala Veera Reddy Vs State of A. P. and Ors.' that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
41
1. Time and again Hon'ble Apex Court reiterated the principles and explaining the magnitude of conviction on the basis of circumstantial evidence through catena of judgments reduced into the following three bottom line principles i.e. in case titled as 'Chandmal V State of Rajasthan AIR 1976 SC 917':
i) The circumstances from which evidence is drawn must be cogently and firmly established;
ii) Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and
iii)The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that with all human probability the crime was committed by the accused and none else."
The sum and substance of illustrations of the above principles is that as and when any conviction is recorded on the basis of the circumstantial evidence the court must take extra cautions to evaluate each and every aspect of the act of the accused and a chain of facts as well as artifacts which can give only one conclusion i.e. of inevitable finding and no scope of doubt remains in the chain of facts and artifacts.
1. Undoubtedly , the deposition of PW1 Rupa who happens to be the sister of deceased Sangeeta is required to be examined with all care and circumspection. Perusal of the testimony of PW1 Rupa reveals 42 that the date of incident has been told by her as 19 th and it was winter season. However, she corrected herself that incident relates to the intervening night of 15/16.02.2010. But Statement recorded u/s 164 Cr. PC by ld. MM vide Ex.PW1/A sufficiently indicates that the mention of date 19th appears to have been on account of long duration of time and memory of a human being and immature age of PW1 as she happens to be about age of 5 years old at the time of incident. The main contention of ld. Counsel for accused is that the accused has not been seen while committing the death of deceased Sangeeta and whole case is based on the circumstantial evidence and only one witness PW1 is the last seen witness and there are number of contradictions and holes in the deposition of PW1 precisely for the reasons that in her deposition again it has come on record that she heard noise of screams of deceased and she had seen from and under the curtain hanging in between the room of witness PW1 Rupa and deceased. She had seen the accused dragging the deceased Sangeeta. On this account ld. Counsel for the accused contended that below curtain there usually only remains 4 5 inches distance from the earth which does not sufficiently point towards the fact that dragging body of the deceased could have been seen by the witness PW1.
43
2. Apart from this, ld. Counsel has contended that no motive is proved in this case. Undoubtedly, the motive plays an important role to arrive at the conclusion of the decision. In the present case it has come on record that PW2 i.e. mother of deceased was living along with her children with accused Sanjay Paswan at House No. H - 152, Laxmi Park, New Delhi and he got sexual relation with the mother of deceased after concealing the fact of his earlier marriage. This state of affairs and conduct of accused sufficiently indicates that the integrity and the conduct of the accused appears to be doubtful and can go to any extent for committing the crime. Apart from this, ld. Counsel in support of his contentions has examined DW1 Vidya Wati, who happens to be wife of accused and in her statement she has deposed that accused was with her on the date of incident. She has been crossexamined by ld. APP. No gathering circumstances has been brought on record beyond doubt that accused was with her on the day of incident precisely for the reasons that it is not supported by any of the other defence witness which could have been examined before this court.
3. I have also perused the disclosure statement of accused Sanjay Paswan vide Ex.PW2/D of accused, recorded in presence of PW2 Smt. Rekha wherein accused had disclosed that: 44 [.........about 3 / 4 months from the marriage of deceased Sangeeta (step daughter of accused), he forcibly established sexual relationship with her and whenever he found a chance he used to do sex with deceased Sangeeta and when PW2 Smt. Rekha (wife of accused) started suspicion on him, she pressed him to get married deceased Sangeeta. Hence, he fixed the marriage of deceased Sangeeta in Shajanpur, Rajasthan for 16.02.2010. Actually, he did not want to get her married. He has also disclosed that on 15.02.2010 he left the home at around 6:00 p.m. for fetching some household goods and returned back at home at around 12.30 a.m. (night) with the intention to flee away with Sangeeta. He found that Sangeeta was sleeping at the gate of house with relatives, he woke her up with hand touching, she woke up and came out from the house silently. He further disclosed that he asked her to have sex once more, but she denied by saying that her marriage is to take place and she shouted but he forcibly took her in another empty room and committed sexual intercourse there and again asked her to flee away from there but she again denied. On this be became annoyed and brought a thin 'wire', which is used in the work of 'shattering' and strangulated her. Thereafter, she fell down on earth. He ran away from the spot. He threw the said 'wire' on the roof of the room.] The aforesaid portion of the disclosure statement although is not admissible in law but so long as the factum of recovery of 'wire' at the instance of accused is concerned, it is admissible and possibility of strangulation with recovered 'wire' is supported by depositions of PW9Dr. Deepak Sharma and PW20 Dr. Manoj Dhingra. vide Ex.PW9/A to PW9/C. Therefore, this is proved beyond reasonable 45 doubt that deceased was killed by 'wire' Ex.P1. Again deposition of PW1 Roopa corroborates the presence of accused at the place of incident i.e. H. No. 152, Laxmi Park, New Delhi on the night of 15.02.2010, vide her deposition Ex.PW1/A recorded u/s 164 Cr. PC. Again, deposition of PW2 Smt. Rekha corroborates the prosecution story deposing that accused had evil eyes on the deceased vide her deposition Ex.PW2/C.
4. Now, in view of this background I shall analysis the principles of circumstantial evidence. First principle is with regard to the attendance of accused at the place of incident at the time of commission of offence. In this regard, vide deposition of PW2 Smt. Rekha who testified that on 15.02.2010 accused Sanjay left the home for market to buy some goods for the marriage of Sangeeta and he came back at the house at around 12:00 mid night. Besides, PW1 Rupa has also seen accused on the night of incident with deceased when he was dragging her vide deposition Ex.PW1/A. Thus, it sufficiently indicates the presence of accused at the place of incident on the intervening night of 15/16.02.2010. The deposition of PW1 cannot be discarded on account of minor discrepancies in her statement precisely for the reasons that a child of 5 years old cannot tell a lie as usually neither he/she understand the outcome of the truth 46 or falsehood. From the other circumstances on the record it can sufficiently be gathered that the motive of accused behind the murder of deceased was to satisfy his lust of sex with deceased because it has also come on record in the deposition of PW2 Smt. Rekha that accused Sanjay was having an evil eye on deceased Sangeeta. In this regard the disclosure statement of accused highlights the state of affairs vide Ex.PW2/D, which has a vital link with the deposition of PW2. Thus, first principle of circumstantial evidence is met out.
5. So long as second principle of circumstantial evidence is concerned, in this regard, it has been proved beyond reasonable doubt that recovery of wire i.e. Ex. P1, which was made at the instance of accused from the iron tin roof of his house no.H152, Laxmi Park, New Delhi on 19.02.2010 vide scaled site plan Ex.PW4/A, in the presence of PW2 Smt. Rekha, PW15 Insp. Jai Singh and seizure memo of 'wire' Ex PW 2/A, prove the factum of death of deceased Sangeeta vide deposition of PW2 Smt. Rekha and PW9 Dr. Deepak Sharma and PW20 Dr. Manoj Dhingra, vide postmortem report Ex.PW9/A. All these facts and circumstances sufficiently indicate that place of recovery of wire was not accessible to every one, vide site plan Ex.PW4/A precisely for the reasons that in the site plan no staircase has been shown. Besides, having perused his disclosure statement 47 Ex.PW2/D and subsequent recovery of 'wire' Ex.P1 at the instance of accused vide seizure memo Ex.PW2/A and subsequent opinion of doctors vide Ex.PW9/C, wherein it has been specifically opined that the ligature mark could be caused by the said 'wire' Ex.P1 and cause of death has been opined as 'asphyxia', proves that death was caused with the recovered wire Ex.P1. Besides, the medical report has revealed that deceased was habitual of sexual intercourse on account of three finger test conducted, by PW9 Dr. Deepak Sharma and PW20 Dr. Manoj Dhingra. All these facts and circumstances are of a definite tendency unerringly pointing towards the guilt of accused.
6. In these facts and circumstances, I am of the view that all these circumstances cumulatively form a chain that there is no escape from the conclusion that in all human probability the crime was committed by the accused and none else. So, in view of this prosecution has met out all the three tests as laid down in cases 1) 'Chandmal V State of Rajasthan AIR 1976 SC 917' and 2) 'Padala Veera Reddy Vs State of A. P. and Ors.' (supra) and proved its case beyond reasonable doubt against the accused for the offence u/s 302 IPC within the meaning of clause thirdly referred u/s 300 IPC that the injuries by recovered 'wire' Ex.P1 was sufficient to cause death in the ordinary course of nature as opined by PW9 Dr. Deepak Sharma and PW20 Dr. 48 Manoj Dhingra, vide report Ex.PW9/A to PW9/C. Accordingly, I hold the accused guilty for the offence u/s 302 IPC.
Accordingly, I convict accused Sanjay Paswan for the offence punishable u/s 302 IPC.
ANNOUNCED IN THE OPEN COURT ON THIS 23.02.2013.
(RAJ KAPOOR) ASJ02/West Distt THC : Delhi 49