Delhi District Court
State vs . Ramesh Kumar on 28 November, 2011
1
IN THE COURT OF S.K. SARVARIA DISTRICT JUDGE &
INCHARGE (N/W) ADDITIONAL SESSIONS JUDGE:
ROHINI DISTRICT COURTS DELHI
SESISONS CASE NO. 96/10
State Vs. Ramesh Kumar
Son of Sh. Ram Kumar
R/o C/o Dharam Pal, Gali Harish
Builder, Sangam Park,
Khoda Colony, Ghaziabad
(Uttar Pradesh)
FIR No. 169/06
Police Station Vikas Puri
Under Section 302/307/376/436 IPC
Date of Institution 13.07.2006
Date when arguments 01.09.2011 and 14.11.2011
were heard
Date of judgment 23.11.2011
JUDGMENT
1. The SHO police station of Vikas Puri has challaned the accused to face trial for the commission of offences punishable under Sections. 302/307/376/436 IPC. The learned Metropolitan Magistrate after compliance of provisions under Section 207 Cr.PC. supplied the copies to the accused and committed the case to the Court of Session for their trial. BRIEF FACTS
2. The prosecution case as disclosed in the challan filed u/Sec. 173 Cr.P.C. after police investigation is that on 31.03.2006 (wrongly written in challan as 2005. SHO, PS Vikas Puri to make note of the fact and to avoid repetition of such errors in the challan in future.) at 1.15 a.m in the State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 2 night, an information was received from PCR vide DD No. 48A PS Vikas Puri about fire in jhuggi no.3 in F Block Vikas Puri. On this information, ASI Nand Ram alongwith Ct. Ashok Kumar went to the spot at Jhuggi No. W-65/3 Indira Camp No.3, Vikas Puri, Delhi, where at the rear portion of first floor of the jhuggi, bed roll, clothes etc. were present in burnt condition with emission of petrol smell. The fire had already been put off. On enquiry, they came to know that the injured had been taken to hospital. Nobody met them at the spot. ASI Nand Ram left Ct. Ashok Kumar for safety of the spot and went to the DDU Hospital and received MLC of Smt. Geeta w/o Sh. Hari Mandal and MLC of Renu d/o Hari Mandal. The doctor declared both the injured fit for statement. The statement of the injured were recorded by ASI Nand Ram which was attested by the doctor. The complainant Geeta Devi w/o Hari Mandal stated in her statement that her elder daughter was got married 12-13 years ago with Ramesh s/o Ram Kumar r/o Khoda colony, Ghaziabad (UP). Out of the said wedlock, a son Inderjeet then aged 11 years was born and was living with them. Around 1½ years ago, Kiran fell ill and to look her after, younger daughter of complainant namely Renu aged 18-19 years went to look after her and lived with them for 2-3 months. When the elder daughter of the complainant Kiran recovered, Renu returned to her maternal home and informed her that her brother in law Ramesh had repeatedly committed sexual intercourse with her so she had become pregnant. Then, they called Ramesh and other relatives and Ramesh apologized and stated that if a child is born to Renu, then he will look after the child. After about 9 months, when the child was about to born, Ramesh took Renu and after delivery of the child, he again sent Renu to her maternal home and kept the child with him. Thereafter, Ramesh came several times to take back Renu but she (complainant) refused. On this Ramesh threatened that if State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 3 Renu was not sent with him, he would kill whole of the family of the complainant. On account of close relations, no complaint was lodged with the police against Ramesh and recently, the marriage of Renu was fixed within jhuggies itself. Yesterday, at about 10-11 p.m Ramesh came on the three wheeler and was sitting on the road outside camp No.3 and was seen by several persons. At about 11.00 pm, her (complainant) daughter Renu, Rupesh and Inderjeet, aged 10-11 years slept on the rear portion of the first floor and the son of complainant namely Mukesh alongwith his wife slept on the front portion. The husband of the complainant slept at the ground floor. At about 1.15 a.m in the night, in their portion of the jhuggi fire took place. She and Renu were burnt. The neighbourers also reached there. The smell of petrol was coming out of the jhuggi. The 100 number vehicle took them to DDU Hospital. She (complainant) believes that this fire was put on by her son in law Ramesh to kill her and her daughter Renu.
3. ASI Nand Ram got inspected the site by crime team, the spot was photographed, the site was inspected and site plan was prepared by him. From the spot, burnt mattress (gadde), clothes, bamboo stick, plastic bottle containing petrol were taken into possession by police. The statements of witnesses u/Sec. 161 CrPC were recorded. On collection of sufficient incriminating evidence against accused Ramesh Kumar, he was arrested alongwith three wheeler scooter No. DL-IRH-1966. The accused in the custody of police, made voluntary disclosure statement that he soaked the cloth in the petrol and with the help of stick, threw it through roshandan (upper small window) and then threw burning matchstick and put on the fire. The personal search of the accused was conducted and the matchbox was recovered which was used by accused in putting on the fire.
State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 4 On 11.04.2005, injured Renu during her medical treatment died in Safdarjung Hospital, so the offence u/Sec. 302 IPC was added and further investigation was conducted by Insp. T.R. Punia, Addl. SHO. The postmortem on the dead body of deceased Renu was conducted from Safdarjung Hospital. The dead body was returned to the relatives of the deceased after postmortem. The DNA profile test of deceased Renu was conducted and samples were preserved and sent to FSL, Rohini, Delhi. As per the postmortem report the cause of death was septicemia due to 95% ante-mortem burns. The scaled site plan of the spot was got prepared. The documents regarding delivery of child by deceased Renu were recovered. The MLC of complainant Geeta was received. On completion of investigation, the accused was challaned, as referred before.
CHARGE AND PLEA OF THE ACCUSED
4. Prima-facie case for the commission of offences punishable under Sections 376/302 IPC was made out against accused. The charges were framed against the accused accordingly on 31.10.2006 to which accused pleaded not guilty and claimed trial. Subsequently, my Ld. Predecessor found on 14.05.2008 that complainant Geeta was also medically examined but due to inadvertence, the charge under Sec. 307 IPC was not framed against the accused by his Ld. Predecessor. After hearing the parties on 14.05.2008 a further charge u/Sec. 307 IPC was, therefore, framed against the accused, who again pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
5. In support of its case the prosecution has examined thirty three witnesses in all. These witnesses, in short, have stated as follows :-
State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 5
6. PW1 Shrimati Geeta deposed that accused is her son in law as her daughter Kiran was married with him about 12/13 years prior to the incident. From the said wedlock, one son Inderjeet was born, who was residing with her. About one and half years prior to the incident elder daughter of PW1 Smt Geeta namely Kiran used to remain ill and due to this reason accused requested PW1 to send Renu aged about 18 years at that time, with accused at his house in Ghaziabad to lookafter her (complainant's) elder ailing daughter Kiran. Renu remained at the house of accused for about two three months and after that she came back to the house of PW1 after the improvement of the health of her ailing daughter.
PW1 further deposed that at her house her daughter Renu told her that accused had sexual intercourse with her several times during the period of 2-3 months at his house at Ghaziabad against her will and without her consent and due to illicit relations/sexual intercourse she had become pregnant. PW1 brought this fact in the notice of her nears and dears and called them. Accused was also called at her house and accused admitted before PW1 and other relatives that he had committed a wrong act with Renu (galti ho gai hai). Accused also admitted that he will look after the child of Renu after delivery. Renu gave birth to a male child at the house of accused as accused had taken Renu with him prior to the delivery. After one and half month of the delivery accused Ramesh dropped Renu along with new born male child at the house of PW1 in Delhi. She further deposed that accused visited her house several times to take Renu back to his house but she did not send Renu with him. Whenever she (PW1) refused to send Renu with accused he threatened her (PW1) to kill whole of her family members, if they would not send Renu with him. Due to close relations with the accused, PW1 did not make any State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 6 complaint against the threat of the accused.
PW1 further deposed that after that they fixed the marriage of Renu with one Rajesh, who was also resident of same locality where they were residing. As accused came to know about the fixation of marriage of Renu with Rajesh and due to this enmity, at about 10/11 PM on the same night on which the incident had taken place, PW1 saw accused Ramesh sitting in TSR on the road outside Camp No.3 and PW1 did not pay any attention towards him and thinking that perhaps he may come to her house. After 10 PM, PW1 along with her daughter Renu and her younger son Rupesh and her grand son Inderjeet slept on first floor of the jhuggi and her son Mukesh along with his wife slept in other portion of the jhuggi and her husband slept on the ground floor of the jhuggi. At about 1.15 AM, they found fire in the portion of the jhuggi where PW1, Renu, Inderjeet and Rupesh were sleeping and during the fire PW1 received, her daughter Renu and Inderjeet received burn injuries. PW1 raised alarm. Persons from the neighbourhood reached there. PW1 and her family members found a smell of petrol like substance coming from the fire. There was a window towards behind of her jhuggi affixed in the portion where PW1 and Renu were sleeping. From that side the fire started in the portion. Someone had made call at number 100. PCR van came there and they were taken to DDU hospital where PW1 and Renu were admitted in the hospital and Inderjeet and Rupesh were discharged from the hospital after giving first aid. Police came at the hospital and recorded statement of PW1 which is Ex PW1/A. PW1 further deposed that on 11.4.05 her daughter Renu died in Safdarjung hospital. PW1 was also treated for the burn injury in Safdarjung hospital. During the course of investigation, Rahul the male child born from Renu, due to illicit relations by accused with Renu, was State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 7 taken to FSL Rohini where his blood sample was taken for DNA. Their clothes Ex P1 lying in the jhuggi were partly burnt due to the fire. Accused had set on fire to their jhuggi to kill Renu and PW1 Geeta and their family members.
7. PW2 Mukesh Kumar deposed that he knows accused as he is his brother in law (jija). Her sister Kiran was married with accused about 13 years prior to the incident. After four years of the marriage, accused left her sister at their house along with her son Inderjeet. Her sister Kiran remained at their house for about seven years. After that accused had married with another lady namely Manju and two children were born to Manju due to illegal marriage of Ramesh. About one and half years prior to the incident accused took away her sister Kiran with him. Her sister Kiran used to remain ill and to lookafter Kiran on the request of accused they sent Renu with accused. Her sister Renu remained at the house of accused for about three months and after that she came back to their house. Her sister Renu was pregnant when she came to their house from the house of accused and later on she gave birth to a male child whose name is Rahul.
PW2 further deposed that on the night intervening of 30/31.3.06, he was sleeping at his house. Her mother and sister Renu were sleeping in a separate room of their jhuggi while he and other family members were sleeping in another room. At about 1.15 AM, he heard cries of her mother and her sister Renu, therefore, he woke up and saw the fire in the room where her sister Renu and mother were sleeping. Her sister Renu and mother received burn injuries. PW2 extinguished the fire after pouring the water on them and in the meantime several persons from the locality collected there. Her mother told him that accused was seen by her State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 8 roaming in the area, prior to the incident, in a TSR. He informed the police at number 100. He accompanied her sister Renu and mother in the PCR van to the hospital where they were got admitted and were medically examined. During the treatment in the Safdarjung hospital her sister died due to the said burn injuries. Local police and crime team also came at the spot. Crime team inspected the place of occurrence and also took photographs. Investigating officer prepared site plan at his instance. Investigating officer took into possession the partly burnt gadda and the clothes from the spot and the same was put in a gunny bag and was sealed with the seal of NRD and taken into possession vide memo Ex PW2/A. Investigating officer also took into possession one plastic bottle containing some quantity of petrol and one bamboo danda from the wall of the park situated near to their jhuggi and the bottle was sealed with the seal of NRD and taken into possession vide memo Ex PW2/B. Investigating officer also took into possession TSR No. DL-1RH-1966 vide memo Ex PW2/C. PW2 further deposed that investigating officer arrested the accused and conducted his personal search vide memo Ex PW2/D and accused pointed out the place of occurrence vide pointing out memo Ex PW2/E. Accused gave disclosure statement Ex PW 2/F. Bottle containing some quantity of petrol seized by the investigating officer is Ex P2, one bamboo danda seized by the investigating officer vide seizure memo is Ex P3.
8. PW3 Arvind Paswan deposed that he knows the accused as the house of the in laws of the accused is situated near his house and he saw him visiting there many times. In the beginning of navratras, PW3 went to Sanatan Dharam Mandir along with his maternal uncle Lalit State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 9 Paswan and Ram Raj Paswan. In the evening of 30.3.06 he saw accused standing near his TSR near the temple and he was under the influence of liquor. PW3 talked with accused and wished him and accused was murmuring. This witness was hostile and was cross examined by learned Additional Public Prosecutor after seeking permission from the court. In the cross examination conducted by ld Addl PP he stated that he has not told to police that accused was saying that his mother in law had engaged Renu with some one despite the fact that she was knowing that Renu is the mother of his child and he will teach lesson to his mother in law.
9. PW4 Hari Mandal deposed that he has four sons and three daughters. The name of his eldest daughter is Kiran. She was married with accused Ramesh about 15 years ago. PW4 stated that he is truck driver by profession. Due to exigencies of his work, sometimes he remained outside upto four months. More than three years ago, accused took her daughter Renu at his house on the pretext of delivery of Kiran in his absence. About three years ago, a fire took place on the first floor of his house, at that time he was sleeping in the ground floor. Renu, Geeta, Rupesh and Inderjeet were sleeping on the first floor of his house. As a result of fire Renu, Geeta, Rupesh and Inderjeet sustained burn injuries. Injured were taken to DDU hospital. In the hospital, PW4 heard his wife Geeta telling that accused had threatened to ruin their family in case they marry Renu with some other person. PW4 also heard Renu saying that the house was put on fire by accused by throwing petrol from the ventilator of the room of the first floor. Renu was shifted to Safdarjung hospital from DDU hospital where she expired. He identified the body of her daughter. Police recorded statement of PW4 regarding identification of dead body which is Ex PW4/A. After the postmortem, dead body was received vide State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 10 receipt Ex PW4/B. This witness was hostile and was cross examined by learned Additional Public Prosecutor after seeking permission from the court. In the cross examination conducted by Ld Addl PP he admitted that he had stated to police that 3-4 years prior to the incident of fire, accused took Renu who was aged about 18-19 years at that time to look after Kiran who was unwell. He denied the suggestion that he had stated to police that his wife Geeta told him about the fact that Renu had become pregnant. He further denied the suggestion that he stated to police that accused admitted his mistake or that he assured that he would look after the child born from Renu. He admitted that he had stated to police in his statement that about 09 months before the incident the accused had taken Renu with him and that after the delivery he kept the child with him and sent back Renu to his house. He admitted that accused came many times to take back Renu and threatened that in case they did not allow the Renu to be sent with him, he will ruin the entire family. He admitted that on the night of fire at about 10/11 PM, the accused was seen by the persons of the locality sitting on the road outside Camp No.3 with his three wheeler. He also admitted that he had stated to police that the ventilator of the rear wall of the jhuggi was lying open at the time of fire. He admitted that accused had been performing sexual intercourse with her daughter Renu when she had gone to his house to look after Kiran, due to which she became pregnant and delivered a child.
10. PW5 Rupesh deposed that he was sleeping on the back portion of the first floor of the house with Renu, her mother and Inderjeet. A fire took place in the night, her mother and sister Renu sustained major burn injuries. He and Inderjeet escaped with minor injuries.
State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 11
11. PW6 A.K. Srivastava deposed that on 19.4.2006 blood sample of accused Ex 4, blood sample of child Ex 5 and forensic samples Ex. 1,2 and 3 received in FSL regarding DNA, finger printing test. The exhibits were subjected to isolation of DNA. The source of the exhibits of Ex 1,2 and 3 yielded D graded DNA which was amplified but DNA profile could not be generated. However the sufficient DNA was isolated from Ex 4 and 5. The DNA profile of Ex 4 ( blood sample of accused) is matching with Ex 5( blood sample of Master Rahul). The alleles as from the Ex 4 is the accounted in the Ex 5. Therefore, the source of Ex 4 cannot be excluded from being the biological father of the source of Ex 5.
The DNA profiling perfound on source of Ex 4( blood sample of accused) is sufficient to conclude that source of Ex 4 is the biological father of the Ex 5 ( blood sample of Master Rahul).The detailed report in this respect is Ex PW6/A running into two pages.
12. PW7 Ram Raj Paswan deposed that Hari Mandal and his family were residing in his adjoining jhuggi. On the night of 30/31.3.08 at about 11/11.30 PM, he along with his relative Arvind Paswan who was also residing in Indira Camp No.3 went to Sanatan Dharam Mandir, F Block. From the Mandir, he returned back at his jhuggi along with Arvind Paswan. Police met him in connection with this case and had made inquiries from him. This witness was hostile and was cross examined by learned Additional Public Prosecutor after seeking permission from the court. In the cross examination conducted by ld Addl PP for state, he admitted that he had stated to police that he knew the family members of Hari Mandal, but he denied the suggestion that he had stated that he knew some of the relatives of Hari Mandal. He denied the suggestion that he had stated to police that a TSR was standing near the mandir and accused who is the State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 12 son in law of Hari Mandal, who was well known to him, was standing near the TSR. He denied the suggestion that he had stated to police that after the mandir was closed, he found TSR still standing there or that accused was sitting in the TSR. He admitted that his brother in law Lalit Paswan, who works as sewadar in the mandir was also with him on his return. He admitted that he had stated to police that Mukesh and other people were bringing down Renu and her mother from the jhuggi in burnt condition and that both of them were crying. He further admitted that after sometime, police vehicle came at the spot and took the mother of Mukesh, his sister Renu, his brother Rupesh and bhanja Inderjeet to hospital. He denied the suggestion that he knew the accused Ramesh Kumar and had seen him with the TSR on the aforesaid date.
13. PW8 Lalit Paswan deposed that in the month of March-2006, he was working as Sewadar in Sanatan Dharam Mandir. On the night of 30/31.3.06 he was performing services in the mandir, he saw a TSR standing on the road outside the mandir. He did not know who had parked the TSR or whether anyone sitting in the TSR. After closing the mandir at about 11.30 PM, he came back to his jhuggi and went to sleep. At about 1.30 in the night he got up on hearing the noise, he saw lot of crowd gathered outside the jhuggi of his neighbour Hari Mandal. Four persons including Inderjeet and his mother Geeta had got burnt and were crying. This witness was hostile and was cross examined by learned Additional Public Prosecutor after seeking permission from the court. In the cross examination conducted by Ld Addl PP for State he admitted that he had stated to police that his sala (brother in law) Ram Raj Paswan was also residing with him in his jhuggi. He admitted that he stated to police that his bhanja Arvind was residing in a separate jhuggi in Indira Camp No. 3. He State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 13 further admitted that he had stated to police that on the night of 30.3.2006, Ram Raj Paswan and Arvind Paswan came at the temple. He further admitted that after closing the mandir, while he along with Arvind Paswan and Ram Raj Paswan were returning back, he was told by Arvind that the persons sitting in the TSR was the son in law of his neighbourer Hari Mandal. He further admitted that he had stated to police that when he got up on hearing the noise, he found that Mukesh and other people had laid down Renu and her mother in a burnt condition. He denied the suggestion that he had seen the person, who was sitting in the TSR. He denied the suggestion that accused is the same person, who was sitting in the TSR. He further denied the suggestion that Arvind had told him that accused is the son in law of Hari Mandal.
14. PW9 is Master Inderjeet deposed that accused is his father. He deposed that date of incident is 30th, it was a Navratra day. On that day, he along with his nani Geeta, mausi Renu, Babloo and Rupesh were sleeping on the first floor of the jhuggi. On hearing the noise, he got up and found that jhuggi had got burnt due to fire and his nani and mausi were badly burnt while his mama Rupesh had also got injuries. He was given treatment by the doctors.
15. PW 10 Smt Kiran deposed that accused is his husband and she was married with accused about 17 years ago. She has one son. She stayed with the accused at her matrimonial house for about five years. The accused again married with one Manju. There, she left accused and started residing with her mother at Vikaspuri. The accused, then had an affair with her sister Renu. She further deposed accused and Renu wanted to marry each other, but she and her parents asked them not to marry and State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 14 after persuasion, Renu agreed not to marry. Renu gave birth to a child of accused Ramesh. Thereafter, she shifted from Vikaspuri to Ghaziabad. Renu had delivered the child at Ghaziabad at her house, when she came there as she was ill. Accused was also residing with PW 10 Kiran at Ghaziabad. She came to know that due to fire in jhuggi her mother, sister Renu expired due to burn injuries. Her mother Geeta Devi, her son Inderjeet and her brother Rupesh also sustained minor burn injuries. She further deposed that on the day of jhuggi fire, accused was present with her at her house at Ghaziabad.
This witness was hostile and was cross examined by learned Additional Public Prosecutor after seeking permission from the court.
In the cross examination conducted by ld Addl PP for State, the witness stated that it was correct that accused was having two sons from Manju, with whom accused married after PW 10 Kiran. She admitted that accused thereafter left Manju and kept her with him. She admitted that her younger sister Renu, who was at that time was 18-19 years, was brought by accused to look after her, when she fell ill at one point of time. She admitted that accused committed sexual intercourse with Renu for three months in that period and due to this reason, Renu got pregnant. She admitted that her mother and father called the accused and insulted him for the wrong act committed by him. She further admitted that her mother and father thereafter, stopped visiting the house of the accused. She admitted that Renu gave birth to a male child and she was taking care of that child. She further admitted that accused wanted to keep Renu in his house, but her mother and father were against this. She further admitted that accused due to this reason, become annoyed with her family persons and used to abuse her parents and other family members.
State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 15
16. PW 11 Rajesh Kumar deposed that he got engaged with Renu on 29.3.2006. On 31.3.06, he came to know that Renu had got burnt in the jhuggi fire. This witness was hostile and was cross examined by learned Additional Public Prosecutor after seeking permission from the court. In the cross examination conducted on behalf of State he had stated that he came to know that mother of Renu also got burnt in the jhuggi fire. He admitted that he came to know that Renu was having a child from her brother in law Ramesh.
17. PW 12 Anil Kumar deposed that he was working in Defence Ministry. He has TSR bearing No. DL-1RH 1966 and had given the said TSR on rent to accused Ramesh. Accused used to take the said TSR from Anil Kumar at about 8 Am and bring back the same in the evening. On 30.3.2006 accused took his TSR as usual at 8 AM. In the evening, he telephoned PW 12 Anil Kumar that he will not bring back the TSR in the evening as he was to go in a party and told that he would bring the TSR on the next day. But even on next day, he did not come to return the TSR.
18. PW-13 Kapleshwar proved the discharge ticket, discharge summary, the treatment paper 16 pages and delivery notes of Renu which are collectively Ex. PW13/A. This witness also proved discharge ticket, discharge summary and the birth record of new born baby, i.e, child of Renu and collectively Ex PW13/B.
19. PW 14 Dr Yogesh Gupta examined Renu with the alleged history of fire, he observed superficial to deep burn over abdomen and bilateral upper limbs, lower face and neck region, bilateral lower limbs, whole back including gluteal region, perineal region and lower chest. PW State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 16 14 prepared her MLC Ex PW14/A.
20. PW 15 ASI Vikram Singh was working as duty officer in police station Vikas Puri from 12 midnight to 8 am. He recorded FIR in the present case and proved carbon copy of FIR as Ex PW15/A. On the same day at about 1.45 AM on receipt of information from wireless operator regarding a fire at jhuggi no. 3, F Block, Vikaspuri, he recorded DD No. 48A. He proved true copy of the same as Ex PW15/B.
21. PW 16 Asha Ram deposed that he was the owner of TSR No. DL1RH 1996 and he had given the said TSR to Anil Kumar on theka for driving the TSR. The said TSR was released to him by the court on superdari and superdarinama is Ex PW28/A.
22. PW 17 Inspector Lalit Kumar deposed that on 31.3.06 on receipt of call, he reached at jhugi No W 65/3, Indira Camp, Vikas Puri and inspected the spot which was in burnt condition where he found two burnt beds, burnt grey colour shawl, burnt ladies and gents clothes, chunni of red colour, plastic bottle having blue cap containing some inflammable and one half bamboo stick. The spot was photographed. No finger print was found on the spot. He instructed ASI Nand Ram to lift the exhibits from the spot. He prepared the detail scene of crime report Ex PW17/A.
23. PW18 Head Constable Jaiveer had taken the photographs of the spot and the negatives are Ex PW18/P1 to 18/P6 and the positives are Ex PW18/P7 to Ex PW18/P12.
24. PW 19 Dr Yogesh Gupta proved MLC of Geeta Ex PW19/A State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 17 which is in the handwriting of Dr Swati Aggarwal.
25. PW 20 Head Constable Raj Singh deposed that he had deposited three sealed pullandas along with one sample seal at FSL Rohini.
26. PW 21 Sub Inspector Mahesh Kumar took the rough notes and measurements of the spot and prepared scaled site plan Ex PW21/A.
27. PW 22 Head Constable Niranjan Lal deposed that on the night intervening 30-31/3/06 he was on duty at C. Control Room PCR headquarter and his duty hours were 8 pm to 8 am. On the said day at about 1.48 AM Mukesh had told him that a fire had taken place in jhuggi no. 3, F Block, Vikas Puri. He filled up the form and sent the message to Vikas Puri through power net, copy of PCR form is mark A.
28. PW 23 Sub Inspector Nand Ram deposed that on the night intervening of 30-31/3/2006, DD No 48A timed about 1.45 am was received in the police station about fire at F block Vikas Puri jhuggi no.3. The said DD was marked to him for inquiry. He left the Police Station along with Constable Ashok for the spot. They reached at jhuggi W65/3, First Floor, Indira Camp No.3 Vikas Puri where in the rear portion at first floor room mattress and clothes etc were found in burnt condition. The fire was already extinguished. No eye witness was found at the spot. In the meanwhile, he received DD No 49A in (akab) through Ct Hari Om of DHG, that female namely Geeta Devi resident of said jhuggi aged about 40 years and her daughter Renu had been admitted in DDU hospital by the PCR. Attested copy of DD No 49A is Ex PW23/A. He left Ct Ashok Kumar State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 18 at the spot and he went to DDU hospital where Smt Geeta and her daughter Renu were found admitted . Two children namely Rupesh and Inderjeet were also treated in the hospital. After getting permission from the doctor that patient was fit for statement, he recorded statement of Geeta which is Ex PW1/A. He also recorded statement of Renu in presence of Dr. Sharfuddin which is Ex PW23/B. Thereafter PW 23 SI Nand Ram came back to the spot and he made endorsement Ex PW23/C and at about 5.15 am he gave it to Ct Ashok Kumar for getting the FIR registered. Crime team came at the spot and inspected the spot. The spot was got photographed by the photographer crime team. He prepared site plan which is Ex PW23/D. From the rear room at first floor of the spot, he seized two mattresses in burnt condition, one half burnt shawl of grey colour, one partly burnt pillow, some burnt clothes of ladies and gents and the same were converted into pullanda with the help of plastic bag and the pullanda was sealed with the seal of NRD and seized through seizure memo Ex PW2/A. Thereafter on the rear side of the aforesaid house at the wall of the park one plastic bottle having blue colour cap and one bamboo( danda) which was partly torn in between and there was some quantity of petrol in the bottle, he seized the same after making its pullanda which was sealed with the seal of NRD through seizure memo Ex PW2/G. He recorded statement of witnesses. During the proceedings, he received DD No.55B regarding admitting of the injured persons at Safdarjung hospital. They left the spot and reached at police station. Thereafter he along with Ct Ashok and brother of deceased namely Mukesh reached at Safdarjung hospital. He recorded statement of Renu and thereafter he along with Mukesh and Ct Ashok left the hospital in search of the accused. They reached at the house of accused at Sangam Park Khora Colony (UP) Ghaziabad, where wife of accused Ramesh met State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 19 him and he made inquiry from her and she told him that the accused did not come to house in last night. He recorded statement of Kiran wife of accused. Thereafter they went to the house of Anil r/o Sangam Park Khoda Colony whose TSR accused used to drive and Anil told that accused did not come back and gave his TSR and accused informed him on the night of 30.3.06 that he, i.e, accused is in some party and he will deposit TSR on the next day ie 31/3/06. He recorded statement of Anil owner of TSR. Thereafter he along with Mukesh and Ct Ashok started search for the accused and reached at near red light Ghazipur where one TSR No DL-1RH-1966 was stationary and Mukesh pointed out and identified one person as his Jija namely Ramesh who was sitting on the driving seat of TSR. They apprehended the accused along with TSR with the help of Ct Ashok. He made inquiries from accused and arrested him vide arrest memo Ex PW 23/E and conducted his personal search in which one match box of label ship was recovered which was having some match sticks and the personal search memo is Ex PW2/D. He seized the aforesaid TSR vide memo Ex PW2/C. Accused was interrogated and recorded his disclosure statement which is Ex PW2/G. In pursuant to the said disclosure statement accused pointed out the place of incident and pointing out memo in this regard is Ex PW2/E. On 11.4.06 an information from the Safdarjung hospital about death of injured Renu was received vide DD No 14A which is Ex PW24/B2 and he reached at hospital and dead body was sent to mortuary for postmortem.
On 12/4/06 case file was handed over to Insp T R Punia as section 302 IPC was added in this case. On 12/4/06 postmortem on the dead body was conducted by autopsy surgeon on the request of Insp T R Punia.
State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 20 On 17.4.06 doctor gave three small plastic containers sealed with the seal of hospital which stated to have contained samples taken by doctor from deceased along with sample seal. He handed over the three sealed plastic containers and sample seal to the IO which were seized by IO vide memo Ex PW23/F. On 19.4.06, IO got the DNA test of the child namely Rahul, who was stated to have been born to the deceased Renu from accused. IO seized the documents regarding birth of child Rahul of Renu produced by Smt Kiran and seizure memo in this regard is Ex PW23/G. On 26/5/06, the draftsman came at the spot on the call of IO and in presence of IO, draftsman took rough measurements of the spot at his (I.O.'s) pointing out. One plastic katta, two mattresses checkdar partly burnt, one partly burnt grey colour shawl, one pillow and some ladies and gents clothes in burnt condition are Ex P1 collectively. One plastic bottle with chit of FSL pasted on it and duly sealed with the seal and the bottle containing some quantity of petrol were recovered and witness identified plastic bottle with petrol Ex P2. One bamboo danda Ex P3.
29. PW 24 Dr Komal Singh deposed that on 12/4/06, he conducted postmortem on the dead body of Renu at about 2.20 pm and postmortem was concluded at 3.30 pm on 12.4.06.
On the dead body there was deep thermal burn involving the face, chest, abdomen, back, both upper limbs, both lower limbs sparing neck and chin and the lower area of legs and these burn areas were covered with the granulation tissue and purulent infection. In his opinion the cause of death was septicemia due to 95 % ante-mortem burns. The time since death was consistent with the hospital time. Sternum was preserved in formilin and blood in EDTA bottle. Postmortem report is Ex State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 21 PW24/A . Inquest papers are Ex PW24/B-2, Ex PW15/B, Ex PW23/A, Ex PW24/B2, Ex PW24/B3, Ex PW24/B4, Ex PW24/B5, Ex PW24/B6, Ex PW24/B7, Ex PW24/B8, Ex PW24/B9, Ex PW24/B10, Ex PW4/A respectively.
30. PW25 Constable Ashok Kumar had taken the rukka for registration of FIR. He went to police station and got the case registered. After getting the FIR registered he came to the spot and handed over copy of FIR and rukka to investigating officer.
31. PW 26 Dr Nishu proved the casualty slip No. 42542 of Inderjeet and 42543 of Rupesh as Ex PW26/A and Ex PW26/B which are in the handwriting of Dr Sarfuddin. As per observations of Dr Sarfuddin, there was superficial to deep burn over right hand, buttock and on casualty ticket 42543 there was superficial to deep burn over left fore arm.
32. PW 27 Dr Prerna proved photocopy of admission and discharged record of patient Geeta which is Ex PW27/A, burn chart Ex PW 27/B, transfer summary of DDU hospital Ex PW 27/C, OPD ticket ( casualty ticket) Ex PW 27/D, TPR chart Ex 27/E, blood report Ex PW 27/F. Senior resident notes which are in the handwriting of Dr Harish is Ex PW 27/G. The admission and discharge slip Ex PW27/A and burn chart Ex PW27/B.
33. PW 28 Retired ASI Rampat deposed that on 30/31.3.2006, he was posted in PCR. On that day he was on duty from 20.00 hours to 08.00 hours as incharge van power 51 PCR. At about 01.49 am, he received one information from control room of fire at jhuggi no. 3, F Block State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 22 Vikaspuri. Thereafter he along with his staff reached at F Block Jhuggi Vikaspuri and out the jhuggi on the road one female and two boys met them in injured condition having burns injuries. He took them to DDU hospital and got admitted them.
34. PW 29 ASI Lakhram deposed that further investigation was marked to him and on perusal of file, he found that injured was still admitted in the hospital. One Asha Ram owner of TSR No. DL-1RH 1966 came to police station to get a vehicle released on superdari. Vehicle was released to him vide superdarinama Ex PWE28/A. He recorded statement of Asha Ram.
35. PW30 Hari Om deposed that he did not know anything about this case. He had worked in Delhi Home Guards from 31.6.2005 to 30.6.2010. He did not know if IO had recorded his statement in this case.
This witness was hostile and was cross examined by learned Additional Public Prosecutor after seeking permission from the court. In the cross examination conducted on behalf of State he admitted that he was posted at PS Vikaspuri as DHG constable. He further admitted that he was on night duty on the intervening night 30/31.3.2006 from 10 pm to 6 am. He did not know if on that day investigating officer gave him DD No 49A for giving it to ASI Nand Ram at Camp No 3 F Block Vikaspuri or that he handed over the same to investigating officer.
36. PW 31 Dr Jyoti proved ME No 4099351 of Renu Ex PW13/A which is in the handwriting of Dr Lisa Mamta Mayee. She further deposed that ME No. 504100041,Ex PW 13/B of bay of Renu and states that same has been prepared by concerned doctor pediatrics but she was not in a State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 23 position to identify signature of doctor concerned.
37. PW 32 ASI Amarpal deposed that on the night intervening 30-31/3/06, he was posted as Incharge PCR. At about 1.55 am, information was received from control room PCR and thereafter they reached at F Block Jhuggi, Vikaspuri where one lady whose name was revealed as Renu met them who was injured and was having burn injuries. He took the said lady to DDU hospital in a PCR van and got her admitted in the hospital.
38. PW 33 Inspector T R Punia, investigating officer proved various steps taken by him during investigation and deposed that on 13/4/06, he moved application before learned Metropolitan Magistrate for seeking directions to put the accused and child Rahul for DNA Test and his application in this regard is Ex PW33/A. He further deposed that on 19.4.06, on his instructions Constable Raj singh took the exhibits to FSL and deposited the same there. Since the forensic expert could not met on 17.4.06 for the DNA test, therefore, he again moved application on 19.4.06 and the accused after seeking permission from the court vide application Ex PW33/B taken to FSL Rohini where forensic expert took sample from accused. The child Rahul also came at FSL along with Smt Kiran and the forensic expert took sample from the child Rahul son of deceased Renu.
He further deposed that on 19.4.06, he seized two papers of discharge summary of deceased which were produced by Smt Kiran. He tender CFSL report Ex PW33/C and letter of FSL regarding submissions of remnants Mark PW-32/A. Thereafter prosecution evidence was closed.
State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 24 PLEA AND DEFENCE OF ACCUSED
39. In the statement of accused recorded u/S. 313 Cr.P.C. the accused has admitted the relationship between him and victim and that deceased Renu remained in his house for about three months when his wife Kiran was not well. About other facts, he has either expressed his ignorance about or has denied the incriminating evidence from the prosecution case put to him. The accused has also stated that the prosecution witnesses are interested and false witnesses.
40. He further stated that he is innocent and has been falsely implicated in this case by the police officials of PS Vikas Puri at the behest and in-collusion of Smt Geeta and his other in law's family members. He had no role to play in the alleged incident of fire as alleged. He had also no role to play in forcible sexual relations with deceased Renu against her consent as alleged. He was not present on the said spot at the said date and time as alleged when the incident of fire taken place. He was kept in wrongful confinement at PS and was mercilessly beaten and was forced to sign on blank papers at PS. Geeta was having grudge against him when Renu refused to marry the boy of her choice and demanded that she be allowed to live with his (accused's) wife Kiran at their home at Ghaziabad, he and his wife supported her demand of her staying with him and not marrying her against her wishes.
ARGUMENTS AND FINDINGS
41. I have heard Sh Sanjay Kumar, Ld. Additional Public Prosecutor for the State and Shri Aseem Bhardwaj, Ld. Amicus curie for accused and have gone through the record of the case and relevant provisions of law, carefully.
State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 25
42. One of the charges against the accused is of committing rape on the deceased Renu. It is not disputed that the wife of the accused namely Kiran who is elder sister of the victim Renu fell ill so for about three months, Renu lived in the house of the accused to look after her sister Kiran. According to the prosecution case, the accused forcibly repeatedly committed rape on Renu during her stay as a result of which she became pregnant and the matter was sorted out with the intervention of parents and relatives of Renu with the accused and it was agreed that on delivery of the child accused and his wife would take care of the child which they did. The expenses of the delivery of the child were also borne by the accused. The prosecution witness PW- 13 Sh. Kapleshwar has proved the documents regarding delivery of child to victim Renu as Ex. PW-13/A (colly). This witness has also stated that patient Renu was admitted to the hospital on 05.07.2005 in Gynae ward and was discharged on 13.07.2005 and she delivered male child on 06.07.2005. The prosecution has also proved through the testimony of witness PW-33 Insp. T.R. Punia that he moved application Ex. PW-33/A before Ld. MM for seeking directions to put accused and child Rahul for DNA test, which was allowed on application Ex. PW-33/B. The forensic expert took sample from accused and child Rahul. PW-6 A.K. Srivastava, Asst. Director, Biology DNA Unit has proved the detailed report Ex. PW-6/A from which it can be inferred that accused is biological father of child Rahul, who was born to deceased Renu.
43. The age of the prosecutrix Renu is important at the time of alleged commission of rape for the simple reason that a prosecutrix upto 16 years of age by virtue of clause sixthly Sec. 375 even if she consents State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 26 for sexual intercourse, cannot take out the act of the accused out of the clutches of Sec. 376 IPC. However, if she is above 16 years of age, and consents to the sexual intercourse then it does not amount to rape as per clauses secondly and sixthly of Section 375 IPC. No date of birth certificate from Municipality, which is taken as authentic document as to age of a person is produced by the prosecution in this case, nor any school record of the prosecutrix is produced to show her age. Therefore, from the other available oral evidence and documents showing the age of the prosecutrix, it is to be ascertained whether she was upto 16 yeas old or above that.
44. In the dying declaration dated 31.03.2006, prosecutrix has given her age as 18-19 years to the Investigating Officer. Since the alleged rape incident happened about 1½ years before the date of the recording of dying declaration of the prosecutrix, her age on the date of alleged rape should be 16½ to 17½ years according to the age given by her to the IO in the dying declaration. In the MLC her age is given as 16 years on 31.03.2006 which makes her well below 16 years of age i.e about 14 ½ yrs at the time of alleged offence of rape. The mother of the prosecutrix/deceased Renu, PW-1 Smt. Geeta has stated that her younger daughter Renu was aged about 18 years at that time. The father of the prosecutrix/deceased Renu PW-4 Hari Mandal has stated in the cross examination conducted on behalf of accused, that at the time of assassination of Smt. Indira Gandhi, his daughter Renu was aged about two years. It is matter of common knowledge that Smt. Indira Gandhi, late Prime Minister of India had been murdered in October 1984. Therefore, according to father of the prosecutrix/deceased Renu, she was born in or about 1982, which makes her age about 22-23 years as on the date of alleged commission of rape. In the cross-examination on behalf of State, State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 27 PW-4 Hari Mandal, father of deceased Renu had stated that when accused Ramesh took her younger Daughter Renu to look after Kiran, who was unwell, she was 18-19 years old. PW-10 Kiran, in her cross- examination on behalf of State has stated that deceased Renu was aged about 18-19 years when accused brought her to look after her. Hence, the age of the prosecutrix as given by prosecution witnesses and available on documents on record, ranges between 14½ years to 22-23 years. The prosecution evidence on record suggests age of the prosecutrix as on the date of alleged rape more on the side of above 16 years than, less than 16 years. Therefore, I hold that the prosecutrix was above 16 years of age as on the date of alleged commission of rape. Therefore, it is not a case falling within Clause Sixthly, in Sec. 375 IPC.
45. The next logical question is whether the prosecutrix has consented for sexual intercourse by the accused or it was done forcibly by him. The evidence on record shows that she remained with accused for about three months to help her ailing sister and the allegation was that she was repeatedly subjected to sexual intercourse by the accused during this period. She being above 16 years of age and repeated sexual intercourse without any objection from her or intimation to her elder sister or her parents during these three month's period when she remained with accused suggests it was a consensual affair. The evidence on record also justifies this inference. The mother of the prosecutrix PW-1 Geeta in the cross examination has stated that it was correct that her daughter Renu wanted to marry with the accused and then, she volunteered that on her asking and counseling she (Renu) dropped the idea. Further, there is long unexplained delay in lodging the FIR. PW-4 Hari Mandal, the father of the deceased/prosecutrix Renu has stated that they made no complaint to the State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 28 police because accused was their close relative. The prosecution story that the compromise was effected between both the sides and accused and his wife had accepted to bear the expenses of delivery of pregnant Renu and to take care of her child also go to show that it was a consent affair between the deceased Renu and the accused, therefore, charge u/Sec. 376 IPC is not proved by the prosecution beyond reasonable doubt.
Charges under Sec. 302 and 307 IPC
46. The case against the accused is that he had put on the fire on the first floor of the jhuggi, as a result of which deceased Renu, her mother Geeta Inderjeet and Rupes caught fire. The deceased Renu scummbed to the injuries received by her in the said fire while PW-1 Geeta was saved by medical treatment and Inderjeet and Rupesh were also discharged from the hospital. In the present case, there is no eye witness having seen accused putting on fire in the jhuggi in question. The prosecution case is based entirely on circumstantial evidence and dying declaration of deceased Renu.
47. The important aspects and circumstances emerging in this case are being dealt with under different headings for the sake of convenience and the proper understanding and appreciating the evidence on record. But before that it would be appropriate to have a glance at the legal position as to the cases based on circumstantial evidence.
LEGAL POSITION AS TO THE CASES BASED ON CIRCUMSTANTIAL EVIDENCE In Sunder @ Lala and Ors. Vs. State 2009 VII AD (Delhi) 615 it was held as under:
State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 29 " 29. It is settled law that circumstances play very important role in the appreciation of evidence.
The conduct of witnesses is a very important facet to determine their creditworthiness. "
48. As evidence, there is no difference between direct and circumstantial evidence. The only difference is in that as proof, the former directly establishes the commission of the offence whereas the latter does so by placing circumstances which lead to irresistible inference of guilt. (See Dalpat Singh v. State of Rajasthan 2005 Cr LJ 749 (Raj) (DB)). The evidence has not to be considered merely as a number of bits of evidence, but the whole of it together and the cumulative effect of it has to be weighed. (See Dukharam Nath V Commercial Credit Corpn Ltd AIR 1940 Oudh 35). No distinction has, therefore, to be made between circumstantial and direct evidence. {See Miran Baksh V Emperor AIR 1931 Lah 529 and Thimma V State of Mysore (1970) SCC (Cr) 320}. The court must satisfy itself that the cumulative effect of the evidence, led by the prosecution, establishes the guilt of the accused beyond reasonable doubt. (See Shankar Bhaka Narsale V State of Maharashtra AIR 1972 SC 1171 and Chanan Singh V State of Haryana AIR 1971 SC 1554) In Padala Veera Reddy v State of AP, AIR 1990 SC 79 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 30 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 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. (See Shivu & Anr. v R. G., High Court of Karnataka, 2007 Cr LJ 1806 (SC)) In Raju Vs. The State by Inspector of Police - AIR 2009 SC 2171, as regards circumstantial evidence, the Hon'ble Apex Court observed as under:
"7. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 31 of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
8. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v.
State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".
9. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 32 with his innocence.
10. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
11. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted".
12. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
13. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus:
"It is well to remember that in cases where the State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 33 evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
14. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 34 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.
15. These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261), Kusuma Ankama Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008) and Manivel and Ors. v. State of Tami Nadu (Criminal Appeal No.473 of 2001 disposed of on 8.8.2008)."
In a recent pronouncement in Musheer Khan alias Badshah Khan Versus State of Madhya Pradesh 2010-JT-1-535 SC, the following observations were made by Hon'ble Supreme Court:
"(46) In a case of circumstantial evidence, one must look for complete chain of circumstances and not on snapped and scattered links which do not make a complete sequence.
(47) This court finds that this case is entirely based on circumstantial evidence. While appreciating circumstantial evidence, the court must adopt a cautious approach as circumstantial evidence is "inferential evidence" and proof in such a case is derivable by inference from circumstances.
(48) Chief Justice Fletcher Moulton once observed that "proof does not mean rigid mathematical" formula since "that is impossible". However, proof must mean such evidence as would induce a reasonable man to come to a definite conclusion. Circumstantial evidence, on the other hand, has been compared by Lord Coleridge "like a gossamer thread, light and as unsubstantial as the air State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 35 itself and may vanish with merest of touches."
The learned Judge also observed that such evidence may be strong in parts but it may also leave great gaps and rents through which the accused may escape. Therefore, certain rules have been judicially evolved for appreciation of circumstantial evidence.
(49) To my mind, the first rule is that the facts alleged as the basis of any legal inference from circumstantial evidence must be clearly proved beyond any reasonable doubt. If conviction rests solely on circumstantial evidence, it must create a network from which there is no escape for the accused. The facts evolving out of such circumstantial evidence must be such as not to admit of any inference except that of guilt of the accused. [see Raghav Prapanna Tripathi and others V. State of U.P (AIR 1963 SC 74)].
(50) The second principle is that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person than the accused. [see: State of U.P V. Ravindra Prakash Mittal (1992 Crl. L. J 3693 (SC)]."
Dying Declaration :
49. The prosecution has relied upon the dying declaration of deceased Renu Ex. PW-23/B recorded by Investigating Officer SI Nand Ram. The Ld. Amicus Curiae appearing for the accused has strongly argued that this dying declaration is not reliable, so cannot be read against the accused as it is not attested by any doctor nor the doctor has stated she was fit for giving statement. It is argued that the victim as per statement of her mother and father knew how to sign but she did not sign the dying declaration which creates doubt on it and it looks that her toe impression was obtained on a blank paper. So dying declaration of State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 36 deceased Renu should be discarded. Reliance is placed upon 'State (Delhi Administration) vs. Laxman Kumar and others, AIR 1986 SC 250 ; and ' Jaspal Singh vs. State of Punjab, AIR 1975 SC 1705. Ld. Addl. P.P on the other hand has argued that dying declaration was made by a burnt lady, so it does not matter whether she has signed it or not, her toe impression is enough to prove it. It is also argued that doctor Sharfuddin has also attested the dying declaration, so it is a reliable dying declaration.
50. I have heard the respective arguments. PW-23 who has proved the dying declaration of victim Renu as Ex. PW-23/B has stated that the statement of Renu was recorded in presence of Dr. Sharfuddin and same is Ex. PW-23/B. The signature of Dr. Sharfuddin is at point B on it and impression of left great toe of the deceased is at point C.
51. In Laxman Kumar's case (supra) dying declaration of burnt bride was not recorded by doctor or the Magistrate but was recorded by Investigating Officer without explaining non availability of Magistrate and the doctor. It was not signed by the victim although, literate and not proved to be incapacitated to sign by virtue of injuries. At the time of recording of dying declaration none of the relations of the victim was present and fitness of deponent to make dying declaration was considered doubtful so dying declaration was discarded. In the present case, the victim received 95% burn injuries as per postmortem report which, in my view, is enough to infer that by trying to putting of the fire, she might have burnt her hands also incapacitating her to sign the dying declaration.
Further, Dr. Shafruddin has also signed this dying declaration Ex. PW-23/B, it adds authenticity to it and make Laxman Kumar's Case State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 37 distinguishable on facts.
52. In Jaspal Singh's case (supra), the genuineness of dying declaration was challenged as it was recorded in the hospital but no doctor was called upon to testify that deceased was conscious and in a position to make statement. In the present case, the fact that doctor Sharfuddin has attested the dying declaration Ex. PW-23/B at point B in itself shows that the victim was fit for statement. Besides, the statement of deceased Renu, IO has also recorded the statement of PW-1 Geeta on the same day. In the brief facts dated 12.04.2006 Ex. PW-24/B4 proved by PW-24 Dr. Komal Singh, it is specifically mentioned that both Renu and her mother Geeta were declared fit for statement by doctors and thereafter, their statements were recorded. There is also a document on record on page no. 279 in the judicial file dated 31.03.2006 i.e. application of ASI Nand Ram to CMO, DDU Hospital on which Dr. Swati Aggarwal has declared that injured Renu was fit for statement. Similarly, there is another document at page no. 281, which is an application of ASI Nand Ram to CMO, DDU hospital on which Dr. Swati Aggarwal has declared injured Geeta fit for statement. Therefore, Jaspal Singh's case (supra) also does not help the accused and dying declaration cannot be discarded on the ground that the deceased was not fit for statement or the doctor was not present or it was recorded by a police official.
53. It is true that the dying declaration which is not recorded by the magistrate has to be scrutinised closely, but if the court is satisfied on a close scrutiny of the dying declaration that it is truthful, it is open to the court to convict the accused on its basis without any corroboration. The dying declaration made by the deceased, before the sub-inspector of State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 38 police was found by Hon'ble Supreme Court as reliable and the accused was convicted. {See, Jaswant Singh vs. State (Del Admn) AIR 1979 SC 190}. Therefore, I hold that the prosecution has been able to prove the dying declaration of the deceased Renu Ex. PW-23/B.
54. In the statement Ex. PW-23/B the deceased Renu so far is relevant, has stated about how she became pregnant and the accused on being apologizing and promising to look after the child, the matter was compromised and the child was born to her and after one month she came back to her parents. She has stated that thereafter, accused came several times to her house and wanted to take her with him forcibly but her mother refused, so accused gave her and her mother threats, if she was not sent with him, he would kill whole of the family. The victim has also stated that when she was sleeping with her mother on the first floor of the jhuggi, the fire erupted in the night. Her marriage was fixed with Rajesh two days ago, so she believed that this fire was put on by accused Rajesh to kill her and her mother, because accused Ramesh was seen in the night in Vikas Puri.
55. Reading the dying declaration Ex. PW-23/B as a whole, though it pertains to cause of death of the victim and circumstantial evidence leading her death, but it has not strong instinctive worth for the simple reason that deceased has not stated in the dying declaration that she saw accused putting on fire in the jhuggi. This dying declaration is not an eye witness account of the incident given by deceased Renu, but is of victim who on account of several facts stated in it has come to inference that the accused has put on the fire to kill her and her mother. This dying declaration here at the most is one of the incriminating circumstances appearing against the accused in this case as the deceased on account of State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 39 past conduct of the accused and fixing of her marriage with one Rajesh and past threats given by the accused, to send victim Renu with him or else he would kill whole of her family, has come to the conclusion that putting on the fire was act of accused Ramesh.
Motive
56. Motive is a relevant factor in all criminal cases whether based on the testimony of eyewitnesses or circumstantial evidence [See State of Uttar Pradesh v Babu Ram 2000 Cr LJ 2457 (SC)]. In a case of circumstantial evidence, motive helps in the process of presumptive reasoning. However, by itself it is not sufficient to convict a person [See Chet Ram v State 1997 Cr LJ 1029 (Del) (DB)].
57. In Tarsem Kumar v Delhi Admn 1995 Cr LJ 470 (SC), JT 1994 (5) JT 264 (SC), the Supreme Court has laid down that where the case of the prosecution has been proved beyond all reasonable doubt on the basis of material produced before court, the motive loses its importance, but in a case based on circumstantial evidence, motive for committing the crime on the part of the accused assumes great importance. It was further emphasised that if each of the circumstances proved on behalf of the prosecution is accepted by the court for the purpose of recording a finding that it was the accused who committed the crime in question, then even in the absence of any proof of a motive for commission of such crime the accused can be convicted. [See also State of Madhya Pradesh v Digvijay Singh AIR 1988 SC 1740, 1981 Cr LJ 1278; Arun Kumar v State 1996 Cr LJ 2280 (Del) (DB)].
58. The motive of the accused is reflected in the dying State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 40 declaration of the victim Ex. PW-23/B. PW-1 Geeta, the mother of the deceased Renu has stated in her statement that after one and a half month of delivery of child, accused dropped Renu alongwith new born male child at her house in Delhi. Accused visited her house several times to take Renu back to his house, but they did not send Renu with him. Whenever they refused to send Renu with him, he threatened her to kill whole of her family members, if they did not send Renu with him. Due to the blood relations with accused, they did not make any complaint against the threat of accused. She also stated that after that they fixed the marriage of Renu with one Rajesh, who was also resident of same locality where they were resided. As accused Ramesh came to know about fixation of marriage of Renu with Rajesh and due to this he became enemy.
59. PW-4 Hari Mandal, father of deceased Renu has stated in the cross examination conducted by ld. Addl. P.P that it was correct that he has stated that accused Ramesh came many time to take back Renu and threatened that in case they did not allow Renu to be sent with him, then he would ruin the entire family. He stated that it was correct that they made no complaint with the police as he (accused) was their close relative.
60. In view of the above, the prosecution has been able to prove the motive of the crime against the accused. It has been able to prove that since the accused wanted to keep Renu with him and on resistance from her family, he had threatened that if they will not allow to take her with him, he would kill the whole of the family. On coming to know about fixation of marriage of Renu with one Rajesh, in the same locality, the accused became annoyed and inimical to give effect to his threat to kill the family.
State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 41 Therefore, motive of the crime is proved by the prosecution against the accused.
Accused last seen near the spot
61. PW-1 Geeta has stated in the examination in chief that at about 10/11 p.m on the same night on which the incident had taken place, she saw accused Ramesh sitting in TSR (three wheeler scooter) on the road outside camp no.3 and she did not pay any attention towards him thinking that perhaps he may come to her house. PW-3 Sh. Arvind Paswan has stated in the examination in chief that in the evening of 30.03.2006 they saw accused Ramesh standing near his TSR whose number he did not remember, near the temple and he was under the influence of liquor at that time. He talked with him and wished him and accused was murmuring. Except that accused did not tell them anything. PW-4 Hari Mandal, father of the deceased Renu has stated in the cross examination conducted on behalf of State by Ld. Addl. Public Prosecutor that it was correct on the night of fire at about 10-11 p.m the accused was seen by the persons of the locality sitting on the road outside camp no. 3 with his three wheeler. PW-7 Sh. Ram Raj Paswan, who was produced by prosecution to prove the presence of the accused near the spot in the TSR has not supported the prosecution case and in the cross examination conducted by Ld. Addl. Public Prosecutor has denied that he had stated to the police that after the mandir was closed, he found the TSR standing there or that Ramesh was sitting in the TSR. He was confronted with portion C to C of his statement Mark PW-7/A wherein it was so recorded. The wife of the accused Kiran is also produced by the prosecution as PW- 10 but she is hostile witness and in the examination in chief she stated that on the day of jhuggi fire, the accused was present with her at her house at Ghaziabad, but in the cross State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 42 examination conducted by Ld. Addl. Public Prosecutor she has stated that it was correct that she has stated before the police that accused went for his work at about 8.00 am. She also admitted it correct that accused did not come back till the recording of her statement on 31.03.2006. But after the cross examination conducted on behalf of accused, in response to the court question, she has stated that accused returned to her house from the work in the evening and was with her in the night of 30/31.03.2006 on the night of fire but again went for work on 31.03.2006 and her statement was recorded in the absence of accused, therefore, she stated that he did not return back till recording of her statement on 31.03.2006. The contradictory statements made by PW-10 Kiran wife of the accused, only go to show that she wants to save the accused he being her husband, so she has made contradictory statement in the examination in chief and in her cross examination and tried to make explanation in response to court question to save accused.
62. PW-8 Sh. Lalit Paswan has stated in the examination in chief that he saw a TSR standing on the road outside the mandir. This witness is also a hostile witness but in the cross examination conducted on behalf of State by Ld. Addl. Public Prosecutor he admitted it correct that after closing the mandir, while he alongwith Arvind Paswan and Ram Raj Paswan were returning, he was told by Arvind that person sitting in the TSR was the son in law of his neighbour Hari Mandal. But he denied the suggestion that accused Ramesh Kumar, then present in the court, is the same person, who was sitting in the TSR. Therefore, this hostile witness PW-8 though, has not supported the prosecution case that accused was present in the TSR, but has confirmed that one TSR was parked outside the mandir on the night of 30/31.03.2006. Further the deceased Renu in State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 43 her dying declaration Ex. PW-23/B has also stated that she believes that the fire has been put on by accused Ramesh to murder her and her mother because accused was seen in Vikas Puri in the night.
63. In view of the above statement of PW-1 Geeta, PW-3 Arvind Paswan, PW-4 Hari Mandal and dying declaration Ex. PW-23/B, the prosecution, in my view, has been able to prove that on the fateful night, the accused was present outside the mandir in the three wheeler near the spot and was seen near the mandir and also near Indira Camp No.3, Vikas Puri. These facts assume importance on account of statement of the father of the deceased Renu PW-4 Hari Mandal made in the cross examination voluntarily that anything can be thrown inside jhuggi by climbing the chhajja of adjoining temple. He has also stated in the cross examination conducted on behalf of accused on 25.03.2009 that parapet of the mandir wall is connected to the backside wall of his house. He has also stated that height of parapet was about 4 - 4½ ft. The parapet of temple touches his jhuggi on the right rear wall while entering the jhuggi. He also admitted that ventilator is in the middle portion of the wall of the jhuggi. These statements of PW-4 make presence of accused near temple on the relevant date, an important incriminating circumstance against him.
Non return of TSR by the accused
64. The TSR no. DL-IRH-1966 was seized from the accused by the Investigating Officer vide seizure memo Ex. PW-2/C at the time of his arrest. The PW-16 Sh. Asha Ram the registered owner of the said TSR has proved that he got the said vehicle released on superdari from the court. He also stated that he gave his TSR to Anil as he was unable to drive the same. The prosecution witness Anil Kumar is examined by State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 44 prosecution as PW-12. He has stated that he had given the TSR No. DL- IRH-1966 on rent to the accused Ramesh. The accused used to take TSR from him at about 8.00 am and bring back the same in the evening. PW-12 further stated that on 30.03.2006 accused took his TSR, as usual, at 8.00 am and in the evening he made a telephone call to him that he will not bring the TSR in the evening as he was to go in a party and also told that he would bring the TSR on the next day. But even on the next date, he did not come to return the TSR. There is nothing in the cross examination to rebut above statement of PW-12. Further in response to the question no. 44 put to the accused under Sec. 313 CrPC that it was in evidence against him that PW-12 Anil Kumar had TSR No. DL-IRH-1966 given on rent to him and he used to take TSR from PW-12 Anil Kumar at about 8.00 am and bring back the same in the evening. The accused has replied that it was a matter of record. In response to the further question that on 30.03.2006 he took the TSR at 8.00 a.m as usual, he again replied that it was a matter of record. But to the next question, he denied that he did not bring back the TSR to Anil Kumar on 30.03.2006 or on the next day. But I do not see any reason why PW-12 Anil Kumar would wrongly state that accused did not return TSR on 30.03.2006 in the evening or on the next day.
65. Statement of PW-12 Anil Kumar clinches the issue and clearly shows that accused took his TSR on 30.03.2006 at 8.00 am and did not return the same in the evening as used to be done by him usually and on the next day, he also did not return the TSR which was seized by the police from the possession of accused vide memo Ex. PW-2/C, therefore, the prosecution in my view, has been able to prove another important circumstance in the chain of circumstances against the accused State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 45 that he being three wheeler driver retained it on the night of 30.03.2006 and also on the next day. This incriminating circumstance assumes importance in the light of the fact that accused was seen in the locality on his three wheeler scooter by the prosecution witnesses on the night of incident as proved in the foregoing discussion.
Recovery of empty bottle and bamboo stick
66. PW-2 Mukesh Kumar, the brother in law (brother of wife of accused) has stated that IO took into possession one plastic bottle containing some quantity of petrol and bamboo danda from the wall of the park situated near their jhuggi and the bottle was seized with the seal of NRD and taken into possession vide memo Ex. PW-2/B which bears his signatures at Point A. In the cross examination this witness has admitted that public persons were present when IO had taken into possession the plastic bottle and danda. The investigating officer PW-23 SI Nand Ram has identified the plastic bottle with petrol as Ex. P-2 and the bamboo danda as Ex. P-3. PW-25 Ct. Ashok Kumar has also corroborated the statement of PW-2 that from behind the jhuggi near wall one plastic bottle having some quantity of petrol and its lid was of blue colour and bamboo danda torn was recovered by the IO who prepared the pullanda of the bottle and sealed it with the seal of NRD and seized bottle and danda by seizure memo Ex. PW-2/B which bears his signatures at Point D. Therefore, the recovery of one plastic bottle containing some petrol and bamboo stick which was used in putting on the fire is proved to be recovered by the initial IO ASI Nand Ram from the wall of the park behind the jhuggi of the complainant party. The recovery of these articles from the said place is further corroborated by scene of the crime report Ex. PW-17/A proved by PW-17 Insp. Lalit Kumar in which he has indicated that plastic bottle with State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 46 blue cap containing some inflammable and one half bamboo stick were lying on the wall of park behind the jhuggi. Hence, the incriminating circumstance that the fire was put on with the help of bamboo stick and the petrol and this was done from outside the jhuggi is established by the prosecution in this case.
Forensic Evidence
67. PW-33 Insp. T.R. Punia has proved the CFSL report Ex. PW-33/C which shows that from the plastic bottle recovered from the wall of the park behind the jhuggi of the complainant party by the initial IO vide seizure memo Ex. PW-2/B, petrol was detected. However this report also shows that burnt clothes and burnt bed roll and from bamboo stick no petrol, kerosene oil, diesel oil or their residues could be detected. This omission of inflammable liquid like petrol from burnt cloth, bamboo stick is obvious for the simple reason as it is a matter of common knowledge that petrol if kept in open or is soaked on any material like cloth evaporates quickly. Therefore, omission of any smell or existence of petrol on burnt cloth material, bed roll, bamboo stick at the time of examination by CFSL of these articles after a time gap from date of recovery has no negative effect on the prosecution case. This forensic report on account of presence of petrol in the plastic bottle supports the prosecution case. Further the accused being a three wheeler driver, it was easy for him to make available the petrol.
68. Another forensic evidence led by the prosecution is the DNA report Ex. PW-6/A as discussed before, confirming that accused Ramesh Kumar is father of the master Rahul, the son of deceased Renu.
State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 47 Medical Evidence
69. The MLC of deceased Renu when she was admitted to Deen Dayal Upadhyay Hospital is proved by the prosecution as Ex. PW-14/A and shows that she was admitted to the said hospital at 2.30 am on 31.03.2006 with superficial to deep burns approximately 85-90% on her body. Thereafter, she was referred to the Safdarjung Hospital and succumbed to the injured. She was subjected to postmortem and her postmortem report is Ex PW24/A showing that she received 95% of burn injuries in the fire incident.
70. MLC of complainant Geeta is proved by the prosecution as Ex. PW-19/A with burn injuries over chest and abdomen etc. She suffered burn injuries of 30-50% on her body as per MLC. She was also referred to Safdarjung Hospital for further treatment. PW-27 Dr. Prerna Nembang, Sr. Resident Burns and Plastic, Safdarjung Hospital has proved her admission and discharge report as Ex. PW-27/A, burn chart Ex. PW-27/B , transfer summery of DDU hospital as Ex. PW-27/C, OPD ticket (causality ticket) Ex. PW-27/D, TPR chart Ex. PW-27/E, blood report Ex. PW-27/F, Sr. Residents' note in the handwriting of Dr. Harish as Ex. PW-27/G. These medical reports proved by PW-27 show that complainant Geeta suffered 40% thermal burns in the incident in question.
Additional/missing link in the chain of circumstance
71. It is a well settled principle that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue then the same offers an additional link in the chain of circumstances to complete the chain. {See Swepan Patra v State of State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 48 West Bengal (1999) 9 SCC 242; Anthony D'Souza & ors v State of Karnataka 2002 (10) AD 37 (SC)}. A false answer offered by the accused when his attention was drawn to a circumstance renders that circumstance capable of inculpating him. In such a situation a false answer can also be counted as providing 'a missing link' for completing the chain. {See State of Maharashtra v Suresh 2000 (1) SCC 471, 2000 SCC (Cr) 263; Kuldeep Singh & ors v State of Rajasthan 2001 Cr LJ 479 (SC), (2000) 5 SCC 7; Joseph v State of Kerala AIR 2000 SC 1608, (2000) 5 Sec 197; Jalasab Shaikh v State of Goa AIR 2000 SC 571, 2000 AIR SCW
111.} Where the accused on being asked, offers no explanation or explanation offered is found to be false, then that itself forms an additional link in the chain of circumstances to point out the guilt. {See Chandrasekhar Kao v Ponna Satyanarayana AIR 2000 SC 2138, JT 2000 (6) 465 SC; State of Tamil Nadu v Rajendran AIR 1999 SC 3535, 1999 Cr LJ 4552; Hari Lal v State 2001 Cr LJ 695 (All) (DB); Madho Singh & etc v State of Rajasthan 2001 Cr LJ 2159 (Raj) (DB); Sonatan Mahalo v State of West Bengal 2001 Cr LJ 3470 (Cal) (DB)}.
72. In the light of the above case law, the false answers given by the accused as to his presence alongwith three wheeler scooter near the spot on the date of incident, regarding non return of TSR to PW-12 Anil Kumar, amount to providing missing link completing the chain of incriminating circumstances appearing against the accused in this case.
Result of the case
73. In view of the above, the prosecution has failed to prove its case against the accused for the charge under Section 376 IPC beyond reasonable doubt and he is accordingly, acquitted of the charge u/Sec. 376 State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 49 IPC. However, the prosecution has been able to prove its case against the accused for the offences u/Sec. 302/307 IPC beyond reasonable doubt. The accused, is therefore, convicted of the charges u/Sec. 302 and 307 IPC framed against him. Let he be heard on the point of sentence.
Judgment be sent on server (www delhidistrictcourts.nic.in).
Announced in the open court
on 23rd November, 2011 (S. K. Sarvaria)
District Judge & Addl Sessions Judge
Incharge/ North West Distt
Rohini Court/ Delhi.
State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 50 IN THE COURT OF S.K. SARVARIA DISTRICT JUDGE & INCHARGE (N/W) ADDITIONAL SESSIONS JUDGE:
ROHINI DISTRICT COURTS DELHI SESISONS CASE NO. 96/10 State Vs. Ramesh Kumar Son of Sh. Ram Kumar R/o C/o Dharam Pal, Gali Harish Builder, Sangam Park, Khoda Colony, Ghaziabad (Uttar Pradesh) FIR No. 169/06 Police Station Vikas Puri Under Section 302/307/376/436 IPC ORDER ON SENTENCE By my judgment dated 23/11/2011, the accused/convict Ramesh Kumar was convicted for the offences under Sections 302 and 307 IPC.
Sh. Sanjay Kumar, Ld. Addl PP for the State has argued for deterrent punishment against convict/accused, keeping in view the serious nature of the crime committed by him.
Sh. Aseem Bhardwaj, amicus curiae for convict/accused argued that the convict/accused is a sole bread earner of his family consisting of his wife and two minor school going children, so lenient view may be taken against him as he is in custody for more than five years.
It is further argued that convict/accused Ramesh Kumar was a young person of the age of 33 years at the time of the commission of the offence so lenient view should be taken against him.
I have heard learned Additional Public Prosecutor and learned Amicus Curiae for the convict/accused and have gone through the State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri 51 record of the case and the relevant provisions of law carefully.
For the offence u/s 302 IPC, the punishment prescribed is death penalty or imprisonment for life besides the imposition of fine. As per settled legal position with regard to sentence in murder cases the death penalty can only be awarded to that convict about whom it can be said that his case falls amongst rarest of rare cases and death penalty alone is the appropriate punishment in that case. In the present case, the facts and circumstances of the case do not suggest that it is one of the rarest of rare cases where extreme penalty of death should be awarded to the convict/ accused. Therefore, the convict Ramesh Kumar is awarded life imprisonment for the offence under section 302 IPC. In addition, he is also directed to pay fine of Rs.5000/-, in default of payment of fine he shall undergo Simple Imprisonment for 6 months.
For the offence u/Sec. 307 IPC, the convict Ramesh Kumar is awarded rigorous imprisonment for ten years. In addition, he is directed to pay fine in the sum of Rs.2,000/-. In default of payment of fine he shall undergo Simple Imprisonment for 3 months. Both the sentences shall run concurrently and benefit of Sec 428 Cr.P.C. for detention of convict during investigation and trial be also given to the convict.
Judgment of conviction dated 23.11.2011 and order on sentence be sent to server (www.delhidistrictcourts.nic.in). Copy of judgment and order of sentence be supplied to convict/accused free of cost. File be consigned to record room.
Announced in the open court
on 28th November, 2011 (S. K. Sarvaria)
District Judge & Addl Sessions Judge
Incharge/ North West Distt
Rohini Court/ Delhi.
State Vs Ramesh Kumar FIR No. 169/06 PS Vikas Puri