Delhi District Court
State vs Amarjeet S/O. Shankar Sahni, R/O. on 30 July, 2012
1
IN THE COURT OF SH. SANJEEV KUMAR
ADDL. SESSIONS JUDGEI(OUTER): ROHINI COURTS: DELHI
SC No.76/2011.
U/S.302 IPC.
FIR No.172/11.
PSVIJAY VIHAR.
STATE VS AMARJEET S/O. SHANKAR SAHNI, R/O.
X1/3, 4, 1ST FLOOR, BUDH VIHAR,
PHASE1, C/O. LILA WATI, W/O. LATE
DHARAMBIR.
PERMANENT RESIDENT OF:
VILLAGESHIVDASPUR, POST OFFICE
VISOTHA, PSKATRA, DISTRICT
MUZZAFFARPUR, BIHAR.
Date of Institution in the Sessions Court :02.09.2011
Date of Arguments:13.07.2012
Date of Judgment :25.07.2012
State Vs Amarjeet//FIR NO.172/11
PSVIJAY VIHAR// U/S. 302 IPC PAGE1 OF PAGE 89
2
JUDGMENT:
1. The brief facts of the prosecution case are that on 12.05.2011 duty constable Narain from SGM Hospital gave information in the PS Vijay Vihar that one lady Chhoti Devi wife of Amarjeet has been admitted in the hospital in unconscious condition. She is having injuries on her body and doctor has declared her brought dead. On the said information DD No.15B was recorded in the PS at about 6am, which was assigned to SI Sandeep. SI Sandeep reached at the hospital, but he did not find any eyewitness there. Therefore, he prepared the rukka by endorsing in the said DD No.15B. He called the crime team and also got the photograph of the dead body of deceased Chhoti Devi. In the hospital, one Manju neighbourer of the deceased met him and told that she found the deceased on the first floor in house number X1/34, Budh Vihar, Phase1, Delhi, in injured condition and she got admitted her in the State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE2 OF PAGE 89 3 hospital. Thereafter, he reached at the aforesaid place where crime team inspected the spot and took photographs. No eyewitness were found there also. Thereafter he prepared the rukka by endorsing on the DD No.15B itself and gave the same to Ct. Baljeet and on the basis of said rukka, the present case FIR no. 172/11, has been registered.
Thereafter, investigations was assigned to Inspector S.K. Jha. Who reached at the spot and recorded statement of witnesses, seized the blood stained piece of floor. One blood stained shirt of a child also recovered and statement of eyewitnesses were recorded u/s. 161 Cr.P.C. He prepared the site plan. From the statement of witnesses, he came to know that deceased had quarrel with her husband Amarjeet and her husband had absented himself after that. Accused was apprehended on 12.5.2011 by him and his disclosure statement was recorded at his instance. From his house State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE3 OF PAGE 89 4 recovered the weapon of offence i.e. one kitchen knife having blood stains, which is seized. He also seized the cloth of the accused, got the postmortem examination of the dead body of the deceased and after postmortem examination handed over the dead body to the relative of the deceased. He collected the postmortem report and after completion of the investigation, callan was prepared u/s. 302 IPC and filed before the ld. MM and accused was put to trial.
2. After compliance of the provisions of Section 207 Cr.P.C., ld. MM committed the present case to the Court of Sessions, as offences u/s 302 IPC was exclusively triable by the court of Sessions. Thereafter, it was assigned to this court.
3. Vide order dated 02.09.2011, my ld. Predecessor framed charges u/s.302 IPC against accused persons Amarjeet to which he pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution examined 23 State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE4 OF PAGE 89 5 witnesses. PW1 Smt. Hasina, PW3 Urmila, PW4 Sunil Kumar, PW5 Rajesh Kumar were the independent public witnesses and tenants of the said house where accused was residing and PW10 Smt. Leelawati is the owner of the said house, PW2 HC Ram Singh MHC(M) at PS Vijay Vihar, PW6 Smt. Manju Devi bhabhi of accused Amarjeet, PW7 Harish Sahni is the elder brother of accused Amarjeet, PW8 Ct. Narain Dass is duty constable at SGM Hospital, PW9 SI Anil Kumar was posted in the Crime Branch (Outer District), PW11 Ct. Ashish was DD Writer, PW12 Ct. Lal Singh who took parcels to the FSL, PW13 HC Baljeet Singh duty officer, PW14 Dr. Manoj Dhingra Incharge Mortuary SGM Hospital, PW15 Ct. Ravinder was the photographer in Mobile Crime Team, PW16 Dr. M. Das was CMO (NFSG) at SGM Hospital, PW17 Ct. Naresh Kumar who had delivered the copy of FIR to the senior officers, PW18 Ct. Ravinder who was posted at SGM Hospital Mortuary for looking after the dead State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE5 OF PAGE 89 6 body, PW19 SI Sandeep who has accompanied with the IO in the investigation, PW20 SI Manohar Lal was Draughtsman, PW21 Ct. Baljeet Singh who accompanied with the IO, PW22 Mohan Sahni father of the deceased and PW23.IO/Inspector S.K. Jha.
5. Statement of accused was recorded u/s. 313 Cr.P.C.
and all the incriminating evidence were put to him. But he denied the same and stated that he has been falsely implicated in this case in connivance with the police officials. However, he did not prefer to lead any evidence in his defence.
6. Arguments heard from Shri S.C. Sroai, ld. Addl. PP for the State and Shri Sachin Dev Sharma, ld. Amicus Curiae for the accused.
PUBLIC WITNESSES
7. PW1 Smt. Hasina has deposed in her testimony that she was residing at X1/3, Budh Vihar, Phase1, Delhi on the first floor State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE6 OF PAGE 89 7 with her husband and on 11.5.2011 she was sleeping in her room and her husband was on night duty and at about 4.30am, she woke up for performing the Namaz then she heard the noise of crying of a child and saw that child was sitting near his mother on the first room of the house and also seen that lady i.e. mother of that child was lying in the pool of blood. Thereafter, she raised alarm and called the other persons of the building, who gathered there and the husband of that lady was not present there. Thereafter ld. Addl. PP for the State put the leading questions to the witness with regard to the name of that lady to which she answered that she did not know her name, as she started residing there from few days back.
In her cross examination, she deposed that she was residing at the said house 22½ months prior to the 11.5.2011 and she was not having visiting terms with that lady. She denied the suggestion that she had not seen the lady lying on the spot in a pool State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE7 OF PAGE 89 8 of blood or that she did not hear the cries of child or that she was deposing falsely.
8. PW3 Urmila deposed in her examination that on 11.5.2011 she was residing at the aforesaid address for last 34 years and said house consisting 13 rooms and all the rooms were occupied by the tenants. She further deposed that on the first floor of the said Chhoti with her husband Amarjeet and their children were residing. On the said day in the night, she was sleeping with her family on the roof of the said house and other tenants including Chhoti, her husband and children were also sleeping there. In the midnight at about 1 am, she woke up and saw that accused Amarjeet was quarreling with his wife Chhoti and Chhoti was weeping at that time and going downstairs and her husband was also with her and at about 4.30am, she alongwith her family went down and found Chhoti was lying in the pool of blood outside her State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE8 OF PAGE 89 9 room and accused Amarjeet was not present there, however, Vijay son of Chhoti aged about 3 years was sitting near the body of Chhoti and weeping at that time.
In her cross examination, she denied the suggestion that she had not seen the accused quarreling with his wife or going downstairs or that she had not seen the Chhoti lying in a pool of blood or that she was deposing falsely.
9. PW4 Sunil Kumar deposed in his examination that, he has been residing at the said house alongwith his wife for the last four years as a tenant and he was doing the work of whitewashing and painting. One Raj Kumar was also residing as tenant on the same floor. He knew accused accused Amarjeet, who is uncle of Raj Kumar, who had come at the house of Raj Kumar alongwith his wife and his son and residing there and used to work as a rickshaw puller or sometime as a labourer on a tractor. In the intervening night of State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE9 OF PAGE 89 10 11/12.5.2011, he was sleeping on the rooftop with his wife Nisha Devi, as there was summer season. Other tenants of the said house were also sleeping on the rooftop at that time. He further deposed that Accused was also sleeping with his wife Chhoti Devi and son on the rooftop. At about 1.30/2am accused Amarjeet was forcing his wife towards the downstairs to his room and he was pulling his wife Chhoti Devi, but she was not interest to go in the room downstairs and accused also gave beatings to her. He further deposed that, thereafter accused took his wife forcibly to his room in the downstairs. He further deposed that at 4am he woke up after hearing the noise of Hasina, another neighbour and came to downstairs from rooftop and found Chhoti Devi was in injured condition in a pool of blood in the room of Accused Amarjeet and Amarjeet was not present there. He suspected that accused Amarjeet had caused the death of his wife Chhoti Devi.
State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE10 OF PAGE 89 11 In his cross examination he stated that he was staying at nd 2 floor of the house as tenant, Mrs. Leelawati was his landlady and due to summer season, he used to sleep on the roof of the house alongwith his wife and other tenants were also sleeping at roof. He further deposed that accused Amarjeet was residing there as tenant and Raj Kumar nephew (bhatija) of accused has taken the said room on rent and accused Amarjeet used to reside with him and son of Raj Kumar was also residing in the said room and on that day Raj Kumar was also sleeping on the roof. He further deposed in his cross examination that wife of accused was refusing to go downstairs, but accused was pulling her by holding her hand, it was about 1.30/2am (night) and thereafter he again slept. He had seen the incident by chance, as suddenly he woke up. He did not hear any voice of accused Amarjeet or his wife after they went downstairs.
At about 4am, he heard the voice of Hasina and State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE11 OF PAGE 89 12 thereafter he woke up and other persons who were sleeping there also woke up and went downstairs and saw accused's wife was lying there in a pool of blood. Police met him at about 5/6 am and inquired from him and recorded his statement on 12.5.2011 and later on also he was called at the PS and inquired from him about the incident, which he had seen. He further deposed in his cross examination that, he does not know why accused Amarjeet had brought his wife downstairs from the roof on the day of incident. He had not seen the accused while killing his wife. He had only suspicion that accused had killed his wife, as he was not present in the house even after the incident and he had seen him taking his wife downstairs forcibly on that day. He had not made any effort to trace or contact the accused. He denied the suggestion that he was deposing falsely at the instance of police.
10. PW5 Rajesh Kumar has deposed in his examination that State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE12 OF PAGE 89 13 he has been residing at the H.No.X1/3, Budh Vihar, Phase1, First Floor, Delhi as tenant and used to sell snacks on the woodcart. He was sleeping on the rooftop of the house alongwith his wife and other families were also sleeping on the rooftop on that night due to hot weather. He further deposed that accused Amarjeet was also sleeping on the rooftop of the house alongwith his wife Chhoti Devi and his son and at about 1.30am, accused forcibly took his wife Chhoti Devi to downstairs in his room, but she was not interested to go there, but accused Amarjeet forcibly took her to his room. He further deposed that at about 4 am, he woke up after hearing some noise of a lady. He alongwith his wife and another persons came downstairs in the room of Amarjeet and found that Hasina and other persons were present there and Chhoti Devi wife of Amarjeet was in injured condition in a pool of blood, but accused Amarjeet was not present there. He further deposed that one relative of the accused State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE13 OF PAGE 89 14 Amarjeet was also reached there and thereafter they took Chhoti Devi to the hospital for her medical treatment.
In his cross examination he deposed that he had not noticed what accused speaking at that time, when he was taking his wife to downstairs forcibly, as he was having feeling of sleep at that time. Accused Amarjeet was not present in the room, where his wife was lying in a pool of blood, therefore, Raj Kumar was woken up, who was sleeping on the roof, he had also not tried to make contact with accused Amarjeet in my presence. Police met him in the morning and inquired from him. Later on, he was called by the police in the police chowki for inquiry and thereafter he had only seen the accused Amarjeet at the PS. He denied the suggestion that he was deposing falsely.
11. PW6 Smt. Manju Devi has deposed that, accused Amarjeet is her devar (brother in law). Her husband and accused State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE14 OF PAGE 89 15 Amarjeet used to work as a labour in the tractors and they used to go for their work at about 45am and accused Amarjeet used to come at his house at about 45am before going at work. She further deposed that on 12.5.2011, in the morning time at about 4 am, accused Amarjeet did not come at her house and she went to the house of Amarjeet to call him and she saw Chhoti Devi wife of accused Amarjeet was lying in injured condition and many other persons were also present there. She took Chhoti Devi to SGM Hospital for her medical treatment in a three wheeler, but she was declared brought dead by the doctors in the hospital. Amarjeet was not present at his house at that time.
In her cross examination, she deposed that at first her son Manoj had gone to the house of Accused to call him and then she went to the house of accused and she saw Chhoti Devi in injured condition. She had narrated all the facts to her husband on State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE15 OF PAGE 89 16 phone, but her husband did not come at the spot. Accused did not meet her on that day, Raj Kumar was also not present at the place of incident when she reached there. Raj Kumar also did not come at the spot in her presence, till she remained there and later on she met Raj Kumar at PS and she inquired him about the incident, but he told her that he was not residing there now.
12. PW7 Harish Sahni had deposed in his examination in chief that accused Amarjeet is his younger brother. He had identified the dead body of Chhoti Devi wife of accused Amarjeet on 15.5.2011 at SGM Hospital Mortuary and police recorded his statement in this respect Ex.PW7/A. After postmortem examination the dead body was handed over to him and father of Chhoti Devi, Shri Mohan Sahni vide memo Ex.PW7/B. He was not cross examined.
13. PW10 Smt. Leelawati, deposed in her examination in chief that she was the owner of H.No.X1/3 and X1/4, Budh Vihar, State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE16 OF PAGE 89 17 Phase1, Delhi and she was residing in the H.No. X1/3 she had given the house No. X1/4 to different tenants. In one of the room Raj Kumar was residing as a tenant and accused Amarjeet is his uncle and he was also residing in the abovesaid room of Raj Kumar with his wife and a child, aged about 2½ years. Accused Amarjeet has been residing in the house with his family since 1015 days before the incident. On 12.5.2011 in the morning time, she came to know that murder of Chhoti wife of Amarjeet was committed. She was not cross examined.
MEDICAL EVIDENCE
14. PW14 Dr. Dhingra, Incharge Mortuary, SGM Hospital has deposed that, he alongwith Dr. Deepak Sharma had conducted postmortem on the dead body of Geeta w/o. Amarjeet, aged 30 years, female. The said dead body was brought by Inspector S.K. Jha from PS Vijay Vihar with alleged of stab injury. State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE17 OF PAGE 89 18 External Examination: Stab injury 1.8cmX0.9cm obliquely placed with single edge sharp and upward present on front of chest in mid line. 3Cm below sternal notch on fine dissection it is obliquely cutting between 2 and 3 ribs and underlying muscles and soft tissues, going into chest cavity cutting medial surface of right lung with soft tissues and blood vessels around it. Wound is going chest cavity deep.
Death is due to hemorrhage and and shock consequent upon stab injury number one. Injury number one is caused by sharp weapon and sufficient to cause death in ordinary course of nature. His detailed postmortem report No.437/11 is Ex.PW14/A. They handed over cloths and blood in gauze of deceased in sealed condition with the seal of SGMH with sample seal to the IO.
They have received an application from the IO dated 22.6.11 for seeking the subsequent opinion. They also received a State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE18 OF PAGE 89 19 sealed parcel with the seal of SK, on opening it, it contains a knife with wooden handle with metallic blade contains red discolouration on it. Diagram and dimension of knife is drawn maximum is 1.8cm, blade is single edged. After examination of above knife and PM Report No.437/11 of SGMH stab injury could be possible by above mentioned knife or any other such knife. Knife sealed with the seal of SGMH Mortuary and handed over to the IO alongwith sample seal in original. His detailed subsequent opinion with diagram of the knife is Ex.PW14/B. He has identified the said knife same and correctly. Same is Ex.PW14/Article1. He was not cross examined.
15. PW16 Dr. M. Das CMO (NFSG), SGM Hospital has deposed that on 12.05.2011, one Chhoti Devi wife of Amarjeet, aged 30 years, female was brought to the hospital by Manju Devi, found unconscious state. The patient was declared brought and the body was shifted to the mortuary. He prepared the MLC and the same is State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE19 OF PAGE 89 20 Ex.PW16/A. He was also not cross examined.
OFFICIAL WITNESSES
16. PW2 HC Ram Singh has deposed that on 12.5.2011, he was posted as MHC(M) at PS Vijay Vihar and on that day Inspector S.K. Jha deposited four sealed parcels sealed with the seal of SK vide entry at serial no.191/11 in case FIR No.172/11. He further deposed that on 15.5.2011 Inspector S.K. Jha had deposited three sealed parcels sealed with the seal of SGMH Mortuary alongwith sample seal vide entry at serial no.198/11. He further deposed that on 22.6.11 Inspector S.K. Jha received sealed parcels of knife for obtaining opinion on it of the doctor and later on the said pullanda sealed with the seal of SGMH was again deposited. On 28.6.2011 Ct. Lal Singh collected six sealed pullandas alongwith two sample seal from malkhana vide RC No.65/21/11 for depositing the same at FSL and handed over the receipt thereof to me. The copy of the State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE20 OF PAGE 89 21 relevant entries is Ex.PW2/A. Copy of RC is Ex.PW2/B and copy of receipt from FSL is Ex.PW2/C. On 10.10.2011 result of FSL was received which he handed over to the IO. He was not cross examined.
17. PW8 Ct. Narain Dass has deposed that on 11.5.2011, he was posted at PS Mangolpuri and he was on duty as duty constable at SGM Hospital from 10am to next day 10 am on 12.5.2011. On 12.5.2011 at about 5.40am, one Smt. Manju Devi brought another lady namely Chhoti wife of Amarjeet in injured condition and she was checked by doctor at SGM Hospital and declared her brought dead. He immediately informed the police of PS Vijay Vihar and DD No.15B was recorded at PS Vijay Vihar in this regard and duty officer informed me that DD No.15B was handed over to SI Sanjay for further proceedings. He was not cross examined by defence counsel.
State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE21 OF PAGE 89 22
18. PW9 SI Anil Kumar has deposed that on 12.5.11 he was posted in the Crime Team, Outer District, Delhi and on that day at about 6.55 am he received an information from the PCR to reach at the SGM Hospital. Thereafter, he alongwith Ct. Ravinder, HC Ram Kumar reached at SGM Hospital. SI Sandeep of PS Vijay Vihar met them there alongwith the staff and they saw a dead body of Chhoti Devi in the hospital. He further deposed that they inspected the dead body of Chhoti Devi and photographer Ct. Ravinder took photographs at the instance of the IO. He further deposed that he alongwith Ct. Ravinder, SI Sandeep and another officials reached at st the spot i.e. A1/16, Budh Vihar, 1 Floor, Delhi and SI Sandeep had pointed out the place of incident and he saw the dry blood on the spot, near the door. He had inspected the site and thereafter, he gave his detailed report Ex.PW9/A to the IO and Ct. Ravinder also took photographs there.
State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE22 OF PAGE 89 23 In his cross examination, he deposed that HC Ram Kumar had tried to lift the chance prints from the spot, but same could not be lifted. He further deposed that he has not mentioned at serial no.16 in his report that, which articles was examined by them for lifting the chance prints. He denied the suggestion that chance prints were taken by the expert or that the same was suppressed or that due to this reason he was not made witness in this case or that he deposed falsely.
19. PW11 Ct. Ashish has deposed that on 12.5.11 he was posted at PS Vijay Vihar as DD Writer from 1 am to 9 am and on that day at about 6am, he received information from Ct. Narain from SGM Hospital on phone that one Chhoti wife of Shri Amarjeet has been admitted in the hospital in unconscious condition by Manju Devi and doctor had declared her dead. He recorded DD No.15B and handed over the same to the IO SI Sandeep. Copy of DD No. State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE23 OF PAGE 89 24 15B is Ex.PW11/A. He was not cross examined by defence.
20. PW12 Ct. Lal Singh has deposed that on 28.6.11 he was posted at PS Vijay Vihar and on that day MHC(M) handed over to me six parcels and three sample seals, out of which two samples seal was of SGMH Mortuary and third sample seal was of SK seal, which he took to the FSL Rohini vide RC No.65/21/11 dated 28.06.11, he deposited the exhibits and sample seal in the FSL and handed over the receipt copy of RC to the MHC(M) HC Ram Singh. Copy of RC is Ex.PW12/A. He was not cross examined.
21. PW13 HC Baljeet Singh has deposed that on 12.5.2011, he was posted at PS Vijay Vihar and on that day he was working as duty officer from 9am to 9pm and at about 10.05 am he received a rukka from Ct. Baljeet Singh which was sent by Inspector S.K. Jha and on the basis of said rukka, he recorded the FIR No.172/11 in the computer and handed over the copy of FIR to constable Baljeet State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE24 OF PAGE 89 25 Singh with direction to hand over the same to Inspector S.K. Jha. He has also brought the original register of FIR, the copy of same is Ex.PW13/A. He further deposed that he started the registration of FIR through DD No.12A and closed the same vide DD No.13A. He had also made endorsement on the rukka at point A to A and same is Ex.PW13/B. He was not cross examined.
22. PW15 Ct. Ravinder has deposed that on 12.5.11 he was posted as constable/photographer in Mobile Crime Team, Outer District and on that day, after receiving the information, he alongwith Mobile Crime Team Incharge and other staff reached at SGM Hospital, Mangolpuri and there he took seven photographs of the dead body of Chhoti Devi in the Emergency Ward at the instance of IO. He further deposed that they alongwith IO reached at H.No.X1/3 & 4, Budh Vihar, Phase1, First Floor, Delhi. Blood was lying near the entry gate of first floor. One shirt was lying on the cot. He took State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE25 OF PAGE 89 26 four photographs at the instance of the IO. Negatives of the photographs exhibited as Ex.PW15/A1 to Ex.PW15/A11 and positives of the same exhibited as Ex.PW15/B1 to Ex.PW15/B10. He was not cross examined.
23. PW17 Ct. Naresh Kumar has deposed that on 12.5.11, he was posted as constable at PS Vijay Vihar and on that day, duty officer handed over to him envelops containing the copy of FIR for handing over to Joint CP (Northern Range), DCP (Outer District) and Ltd. MM. Thereafter, he left the PS on government motorcycle No. DL1SS1293 and delivered the same at the office of Joint CP and DCP and at the residence of ld. MM and thereafter he came back to the PS. He was not cross examined.
24. PW18 Ct. Ravinder has deposed that on 12.5.2011 he was posted as constable in PS Vijay Vihar and on that day, he was posted in SGM Hospital Mortuary for looking after the dead body of State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE26 OF PAGE 89 27 one Chhoti Devi was remained under his custody. On 15.5.2011 the said dead body was identified by Hari Sahni and Mohan Sahni vide their statements Ex.PW7/A and Ex.PW18/A and the said dead body was handed over to the LRs of the deceased vide receipt already Ex.PW7/B. After postmortem examination doctors handed over pullanda seized by the IO Inspector S.K. Jha vide memo Ex.PW18/B. He was not cross examined.
25. PW19 SI Sandeep has deposed in his examination in chief that on 12.05.2011, he was posted as SI in PS Vijay Vihar. And on that day at about 6am he received DD No.15B and thereafter, he alongwith PSI Surender reached at SGM Hospital and doctor handed over to him one MLC of Chhoti wife of Amarjeet, on which doctor had opined that, she was brought dead, SHO alongwith his staff also reached at the spot. IO Inspector S.K. Jha had also reached at the spot and he had inspected the dead body and MLC. State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE27 OF PAGE 89 28 They reached at the spot i.e. First floor of X1/3,4, Budh Vihar, PhaseI. Crime Team was called and crime team inspected the spot and photographer took the photographs, blood was lying on the entry gate of the first room from the staircase. One blood stained shirt was lying on the cot. IO prepared a tehrir and handed over to Ct. Baljeet for getting FIR registered. IO lifted the blood/blood stained floor and converted the same into pullanda and sealed with the seal of SK and seized vide memo Ex.PW19/A. The blood stain was also put up into pullanda and sealed with the seal of SK and seized vide memo Ex.PW19/B. IO recorded statement of witnesses. Case properties were deposited in the malkhana. Accused Amarjeet husband of the deceased Chhoti Devi was not found at his house. IO Inspector S.K. Jha had received the secret information that accused Amarjeet can be found at Sector18, Rohini, thereafter, he alongwith IO, HC Sunil Dutt and secret informer reached at Sector18, Rohini, but accused State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE28 OF PAGE 89 29 was not found there. When they were coming back and when they reached at Sector16, near Transport Authority and there accused Amardeep was apprehended at the instance of secret informer, he was interrogated and arrested vide memo Ex.PW19/C and personal search vide memo Ex.PW19/D, accused's disclosure statement was recorded vide Ex.PW19/E, thereafter, accused Amarjeet pointed out the place of occurrence in Budh Vihar, Phase1, thereafter, accused Amarjeet had produced one blood stained knife from the gallery of first floor lying behind the bricks. Sketch of the said knife was prepared vide Ex.PW19/F and the said knife was put up into pullanda and sealed with the seal of SK and seized vide memo Ex.PW19/G. After completion of the investigations the accused was brought to the PS and case properties were deposited in the malkhana. He had correctly identified the case properties i.e. blood stained shirt of a child as Ex.P1 and one knife as Ex.P2. State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE29 OF PAGE 89 30 In his cross examination he has deposed that DD No.6A was marked to him and SHO had accompanied with him. He had inquired from the persons, who have got admitted the deceased in the hospital and the deceased was brought in the hospital in unconscious condition. SHO had reached at the hospital after five minutes of his arrival. Crime Team had also reached at the hospital. He alongwith HC Sunil Dutt, HC Sukhbir, Ct. Baljeet reached at the spot within 1520 minutes. He had made inquiries from the other residents of the said house. During his investigations from the neighbourer, he came to know that only accused alongwith his wife and child were residing there. He denied the suggestion that the brother of accused Harish Sahni alongwith his wife Manju and son Raj Kumar were residing in the said room or that he was suppressing this fact. IO Inspector S.K. Jha had recorded the statement of neighbourer of deceased. He had only prepared the State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE30 OF PAGE 89 31 rukka. IO had reached at the spot immediately after his reaching. Crime Team also reached at the spot at the same time. IO had also inquired from the neighbourers. He had briefed the IO Inspector S.K. Jha about his investigations conducted. He had searched the room as well as the entire floor. He had not gone to the roof top of the said house. The entire premises was thoroughly searched by IO with other staff as well as staff of the Crime Team. Accused was not sharing his room with any other person. He denied the suggestion that accused was sharing the room with his brother Harish Sahni, sister in law Manju and their son Raj Kumar. The landlord of the said house was not present at that time. They during inquiry, came to know that first time the dead body was seen by the neighbourer, but he did not remember the name of the said neighbourer. He did not remember whether he had met with the person by the name of Harish Sahni or Raj Kumar at the spot. Blood was scattered only State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE31 OF PAGE 89 32 near the entry gate of the room of the deceased. There was a cot (Charpai) in the room. Blood mark was lying on the Charpai. There was no line of blood, which formed by the person is dragged. He had sent the rukka at about 7.30am/8am. The description of accused was told by the neighbourer. The said description of the accused was not mentioned in the rukka, as the same was told by the neighbourer later on and statement of that neighbourer was not recorded by him and he had informed the said fact to the IO and also handed over to the IO the said paper. At that time witness was asked to look into the judicial file and after going through the same he admitted that the said note containing description of accused is not in the file. He does not remember whether the son of the accused was there at the spot or not. He does not remember any investigations about the son of the accused had left the spot at about 8.30am, however, IO, Crime Team and other staff were remained State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE32 OF PAGE 89 33 there. He again joined the investigation on the same at about 11/12noon, when he reached at the spot again alongwith HC Sunil Dutt and one constable, whose name he does not remember and from there they left for searching of the accused alongwith HC Sunil Dutt and secret informer, who met him at the spot and then they first reached at Sector18, Rohini and there accused was standing alone when they saw him. They saw him from the distance of 1015 steps. Accused was apprehended in the noon time, but he cannot tell the exact time. Thereafter, he handed over the accused with the direction to take accused to the PS. He had not prepared any documents there, after apprehension of the accused and before reaching the PS. After the apprehension of the accused, all the documents were prepared at the PS by the IO, he had only signed on the same. Accused was taken at the spot by the IO in noon time. The weapon of offence knife was found in the gallery behind 30/40 State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE33 OF PAGE 89 34 bricks, which was lying there. He denied the suggestion that nothing had happened in the date, time and manner deposed in my examination in chief regarding the arrest of the accused. He further denied that nothing incriminating have been recovered from the possession of the accused. He further denied that no disclosure statement was given by the accused. He further denied that the knife has been planted upon the accused or that he had not fairly investigated the case or that the true material facts have been suppressed or that the rukka is ante timed and ante dated or that he has deposed falsely.
26. PW20 SI Manohar Lal has deposed that on 26.5.2011, he was posted as draughtsman and on that day he was called by the IO at PS Vijay Vihar. He reached at the spot alongwith the IO. He took the rough notes and measurements for preparing the scaled site plan at the instance of IO. Thereafter, on the basis of same, he State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE34 OF PAGE 89 35 prepared the scaled site plan on 27.5.2011 and handed over to the IO and thereafter the rough notes were destroyed, the site plan is Ex.PW20/A. He was not cross examined.
27. PW21 Ct. Baljeet Singh in his examination in chief has deposed that on 12.5.2011, he was posted as constable at PS Vijay Vihar and on that day, he alongwith IO Inspector S.K. Jha and HC Sukhbir reached at SGM Hospital after receiving DD No.15B. In the hospital, they met SI Sandeep alongwith PSI Surender. One Chhhoti wife of Amarjeet, who was declared brought dead in the hospital. IO collected the MLC and IO inspected the dead body. Crime Team was called and they also inspected the dead body and took the photographs. One lady Manju Devi was also met in the hospital, who had brought Chhoti Devi in the hospital PSI Surender was left in the hospital, thereafter, he alongwith IO and Crime Team reached at the spot i.e. X1/3, 4, Budh Vihar, Phase1, first floor. Crime Team also State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE35 OF PAGE 89 36 inspected the spot. Blood was lying at the entry gate and one shirt was lying on the cot. IO prepared the Tehrir and handed over to him for getting the FIR registered. He got the FIR registered and came back at the spot and handed over to the IO copy of FIR and original rukka.
In his cross examination, he deposed that they reached in the hospital at about 6.45am. Police was informed by the hospital authorities. Manju Devi was also present in the hospital. IO/SHO had made inquiries from Manju Devi. He denied the suggestion that statement given by Manju Devi was deliberately suppressed or that the present case was deliberately registered on DD Entry in order to buy buy time to cook up the story. He further denied the suggestion that the rukka was not prepared at the time and manner deposed by him or that he was deposing falsely or that he had deposed falsely with regard to rukka.
State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE36 OF PAGE 89 37
28. PW22 Mohan Sahni has deposed that on 15.5.2011, he had identified the dead body of his daughter namely Chhoti Wife of Amarjeet in SGM Hospital mortuary vide his statement Ex.PW18/A and after the postmortem examination, he received the dead body vide receipt Ex.PW7/b. He was not cross examined.
29. PW23 Inspector S.K. Jha has deposed in his examination in chief that on 12.5.2011, he was posted as Inspector (Investigation) at PS Vijay Vihar and on that day DD No.15B was received in PS Vijay Vihar and initially it was attended by SI Sandeep and left for the spot alongwith PSI Surender. Thereafter he alongwith his staff reached at SGM Hospital, where he met with SI Sandeep, PS Surender, SHO and other staff and found one dead body of Chhoti wife of Amarjeet was lying in the Emergency Ward of the hospital, he inspected the dead body and found there was stab wound on the chest of the dead body and there was blood spot on State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE37 OF PAGE 89 38 the blouse and head of the deceased. Crime Team was called and they inspected the dead body and took photographs. One Manju Devi was present in the hospital, who told that she had brought deceased from X1/3,4, Budh Vihar, Phase1, first floor where she was in injured condition. PSI Surender was left in the hospital and thereafter, he alongwith staff and crime team reached at the spot. Crime Team inspected the spot and took photographs. Blood was lying at the entry point of the room and one blood stained shirt of a child was lying on the cot. No eyewitness was found there, then he prepared rukka Ex.PW23/A and same was handed over to Ct. Baljeet for getting the FIR registered and got registered the FIR and came back at the spot and handed over him the copy of FIR and original rukka. He lifted the blood stained floor alongwith sample floor were lifted and given serial no.1 & 2 and seized vide memo Ex.PW19/A, blood stained shirt lifted from the spot and converted State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE38 OF PAGE 89 39 into pullanda and sealed with the seal of SK and seized vide memo Ex.PW19/B. He also prepared the site plan Ex.PW23/B and recorded statement of witnesses. Accused Amarjeet husband of deceased Chhoti was missing from the house. He made inquiries and recorded the statement of public witnesses and thereafter, we came back to the PS and case property was deposited in the malkhana In the evening at about 6 pm, he received a secret information that accused Amarjeet can be found at Transport Authority, Sector16, Rohini, which is just near Sector18, Rohini. Thereafter, he alongwith HC Sunil Dutt, SI Sandeep and secret informer reached at Transport Authority, Sector16 and accused Amarjeet was apprehended at the instance of secret informer, accused was interrogated and arrested vide memo Ex.PW19/C, his personal search was taken vide memo Ex.PW19/D and he made his State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE39 OF PAGE 89 40 disclosure statement vide Ex.PW19/E. Thereafter, accused pointed out the place of occurrence in Budh Vihar, Phase1, first floor, Delhi and in pursuance of his disclosure statement he has produced one blood stained knife from the gallary of first floor lying behind the brick and sketch of knife was prepared Ex.PW19/F and knife was seized vide memo Ex.PW19/G and after completing the investigation accused was brought to the PS, case property was deposited in malkhana and he recorded the statement of witnesses. On 15.5.2011, Mohan Sahni and Hari Sahni father and brother of deceased came in SGM Hospital Mortuary and they identified the dead body vide statements Ex.PW7/A and Ex.PW18/A, he conducted the inquest proceedings. The request for postmortem is Ex.PW23/C, brief facts Ex.PW23/D and form 25.35 Ex.PW23/E. The postmortem examination on the dead body Chhoti was got conducted and thereafter dead body was handed over to the father State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE40 OF PAGE 89 41 of deceased vide receipt Ex.PW7/B and after postmortem examination, doctor handed over exhibits alongwith sample seal which were seized vide memo Ex.PW18/B. On 26.05.2011, SI Manohar Lal took the rough notes and measurement for preparing the scaled site plan and thereafter on the basis of same, he prepared the scaled site plan and handed over to IO. On 22.6.2011 he had moved an application Ex.PW23/F for seeking the subsequent opinion regarding the nature of injury and produced before the doctor who conducted the postmortem examination pullanda containing the knife which was got recovered by accused and thereafter doctor gave his opinion and pullanda was again deposited in the malkhana. On 28.6.2011, exhibits were sent to FSL through Ct. Lal Singh and thereafter he deposited the receipt to MHC(M) and he recorded statement of MHC(M). He collected one electricity bill from Leelawati (Landlord of accused and deceased), same is Ex.PW23/G and after State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE41 OF PAGE 89 42 completing the investigations, challan was prepared and filed in the court. Later on, FSL Result was collected and filed in the court. The FSL Report alongwith report of Biology Division is collectively exhibited as Ex.PW23/H. He has also identified the accused in the court and also the case properties i.e. one blood stained shirt of a child as Ex.P1, one knife which was got recovered by the accused as Ex.P2.
In his cross examination he deposed that till date he has been the IO in 56 murder cases including dowry death cases. He does not remember the exact time when the marriage between deceased and accused was solemnized. But voluntarily he has deposed that 56 ago from the date of incident. He did not think fit to inform the SDM in this case as it was a case of murder and not dowry death. He came to know after going through the contents of DD No.15B that it is a case of murder. He had not recorded the State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE42 OF PAGE 89 43 statement of any public persons prior to registration of the FIR. He denied the suggestion that he had deliberately not informed the SDM in the present case in order to conceal the independent investigation or that the SDM was deliberately was not informed in order to cook up a false story of murder. He further denied the suggestion that the statements of relatives of the deceased with regard to relationship with the accused was deliberately suppressed.
When he visited the SGM, he met Manju. He had not recorded statement of Manju in hospital. He voluntarily deposed that statement of Manju was recorded later on at Budh Vihar. He did not remember the exact time when he recorded the statement of Manju but it was recorded in afternoon on 12.05.2011. Before recording the statement of Manju, he had recorded statements of Hasina and Urmila residents of Budh Vihar. He did not remember the exact time when he recorded their statements. He denied the suggestion that State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE43 OF PAGE 89 44 he had recorded the statement of Manju in hospital or that same was not converted into rukka deliberately or that the FIR was deliberately registered on DD Entry in order to buy time and cook up the story. He remained in SGM Hospital on the date of incident from 6.15am to 7.15 am. He had called the crime team through duty officer. He alongwith crime team reached at the spot, from hospital, at about 7.30am. He cannot tell the exact time when crime team reached in the hospital. However, he deposed that crime team first reached at the hospital and crime team remained at the place of occurrence for about one hour. He cannot tell when crime team left at the spot. He also cannot tell the time when the crime team incharge prepared the crime team report. He had not collected the crime report at the spot. He cannot tell the date and time when the crime team report was collected by him. Crime team was consisting of photographer and finger print expert. The Crime Team inspected the spot in his State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE44 OF PAGE 89 45 presence. In his presence, the finger print expert had taken chance prints from table, door and other articles which he did not remember. He had prepared rukka from the place of incident and prepared the rukka after the departure of crime team from the place of occurrence. He denied the suggestion that he had deposed falsely in this regard or that he had deposed falsely with regard to the inspection, chance prints and timing of the inspection of crime team. He could not tell at what time FIR was received by Magistrate. He had not collected the copy of FIR having the endorsement of Ld. MM. He further denied the suggestion that FIR was ante timed and ante timed or that proper and fair investigation in this regard was not conducted by him. He came to know about the name of accused during inquiry after sending the rukka at about 9.45am. The other tenants of house told the name of accused. Inquest proceedings were conducted on 15.5.2011 by him. He had also recorded the brief facts. He had not State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE45 OF PAGE 89 46 mentioned the name of accused accused and the gist of the incident in the brief facts. He voluntarily deposed that it was not necessary. He further deposed that it is correct that postmortem doctor had advised to inform SDM before postmortem. But he voluntarily deposed that he did not think it fit to call SDM as it was a case of murder.
On the day of incident, he came to know the name of the deceased and accused and during the course of investigation, he came to know that Manju and other persons, who were relatives of the deceased were residing in or around the house of deceased. He denied the suggestion that postmortem of the deceased was deliberately got conducted on 15.5.2011 or that the same was not conducted on 12/13/14.5.2011. he voluntarily deposed that father of deceased was called from Bihar and he reached on 15.5.2011 and after his arrival postmortem examination was got conducted. He had State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE46 OF PAGE 89 47 not recorded any statement of any witness or annexed any document that father of deceased was informed or that father of deceased reached on 15.5.2011. He denied the suggestion that he has deposed falsely in this regard.
He further deposed during his cross examination that, the knife was recovered at about 77.30 pm on 12.05.11 and same was not sent for examination for the purpose of taking possible finger prints from it. He had not prepared the site plan of place from where the knife was recovered. The knife was recovered from the first floor of the same house where deceased and accused were residing. Leelawati was the land lord of building. There were around 1516 rooms in the said house given on rent by said Leelawati. He had interrogated Leelawati in this regard. He had not joined any person from the said house at the time of recovery of knife. He did not know as to which person was residing in the room under which the Chajja State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE47 OF PAGE 89 48 was situated i.e. the place of recovery of knife. The site plan which he had annexed with the chargesheet was prepared upon his own observations. He had also not prepared any site plan showing the place where, accused, deceased and other habitants of the house were sleeping in the house. He had not recorded any statement regarding the pas relationship of accused and deceased from the relatives of the deceased. However, he had voluntarily deposed that he had made inquiries. He had inquired from the parents of the deceased regarding the relationship on 15.5.2011. he had not mentioned this fact in the case diary. He denied the suggestion that this fact was not mentioned in the case diary because nothing against the accused was stated by anyone at any point of time.
He denied the suggestion that he had not fairly investigated the case or that no disclosure statement as alleged by him was made by the accused or that his signatures upon the same State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE48 OF PAGE 89 49 were taken forcibly or that nothing was recovered at his instance or that the accused was very much present in the house i.e. at the place of occurrence, when they visited the same or that the true sequence of event and relevant facts were deliberately suppressed or that the version given by the accused was also suppressed and not properly/ fairly investigated. He further denied the suggestion that this case was deliberately given the colour of Section 302 IPC or that independent investigation from SDM was deliberately kept away or that the false witnesses and story was introduced or that true version and witnesses of relevant facts were deliberately suppressed or that he was deposing falsely.
30. In his statement u/s. 313 Cr.P.C., accused has stated that he was insisting to have physical relation with her, but, she was refusing and she got infuriated and herself inflicted injury with kitchen knife. He immediately went outside to call his relatives and friends to State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE49 OF PAGE 89 50 console her and asked her not to do such type of act and did not take serious note of attacking herself.
31. Arguments heard from Shri S.C. Sroai, ld. Addl. PP for the State and Shri Sachin Dev Sharma, ld. Amicus Curiae for accused Amarjeet and also gone through the record. It has been argued ld. Addl. PP for the State that though, there is no eyewitness in this case, but circumstances proved that except accused no other person had committed the murder of deceased. He submitted that testimony of PW2, PW3, PW4 and PW5 proved that accused had taken the deceased in the room from the roof at about 1am, where she was sleeping and later on dead body of the deceased was recovered from the room and accused was found absconded. Hence, he was last person with the deceased. Further weapon of offence i.e. knife has been recovered at his instance. Hence, it is proved that accused has committed the murder of the deceased State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE50 OF PAGE 89 51 after quarrel with her. Hence, he is liable to be convicted for offence u/s. 302 IPC.
32. On the other hand, Shri Sachin Dev Sharma, ld. Amicus Curiae for the accused has taken the same defence as taken by accused in his statement u/s. 313 Cr.P.C. He further argued that accused had not absconded from the spot, but he went to inform his relatives. Later on when he returned, he was falsely implicated in this case. He further argued that prosecution has failed to prove that any motive of commission of crime by accused. Hence, in such circumstances, prosecution has failed to prove the case against the accused beyond reasonable doubt and accused is entitled to be acquitted. He further argued that even if for the sake of arguments, it is evident that death of deceased was caused by accused, but circumstances suggest that he had no intention or knowledge to cause the death, as only one blow of knife has been given to the State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE51 OF PAGE 89 52 deceased. Therefore, at the best offence u/s. 304 IPC is made out against the accused, if entire case of the prosecution is accepted.
FINDING
33. The case of the prosecution is based on the circumstantial evidence, as there is no eyewitness of the incident.
CIRCUMSTANTIAL EVIDENCE
34. If the offence has taken at a lonely place and at that time when eye witnesses are not possible to be found in such circumstances it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence is insisted upon by the courts. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. It is settled law that conviction can be based solely on the circumstantial evidence but where a case rest State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE52 OF PAGE 89 53 squarely on the circumstantial evidence, it is the duty of the prosecution to lead such evidence that inference of guilty can be justified and circumstances found to be incompatible with the innocence of the accused or guilt of any other person. 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 closely connected with the principal fact sought to be inferred from those circumstances. Where the case depends upon the conclusions drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
In Sharad Birdhichand Sards V State of Maharashtra, AIR 1984 SC 1622. It was held by the Hon'ble Supreme Court that while dealing with circumstantial evidence onus was on the prosecution to prove that the chain is complete and the State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE53 OF PAGE 89 54 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 :
i) 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;
ii) 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;
iii)the circumstances should be of a conclusive nature and tendency;
iv)they should exclude every possible hypothesis except the one to be proved; and In a case of circumstantial evidence, prosecution has to prove the chain of evidence so 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 State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE54 OF PAGE 89 55 have been done by the accused.
35. The prosecution has relied upon following circumstances to prove the guilt of the accused:
(A) Deceased and accused were husband and wife. (B) Deceased and accused were residing together at the spot i.e. House No. X1/34, Budh Vihar, Phase1, first floor, Delhi.
(C) Hence, Accused was the last person with the deceased prior to her death.
(D) Accused and deceased have quarreled and accused had taken her into the room from the roof of the said house where she was sleeping at about 1.00am and at about 4.00am found dead.
(E) Absconding of the accused after the incident. (F) Recovery of knife at the instance of accused by which death of deceased was caused.
(G) That later on opinion of Dr. Manoj Dhingra (PW14) in the PM Report that death was caused by stab injury by the knife, which was recovered at the instance of the accused.
36.PW3 Smt. Urmila stated in her testimony that on 11.5.2011, she was residing at house number X1/34 and on first floor of the said Chhoti Devi (Deceased) and accused Amarjeet their child were residing on 11.5.2011 and she was sleeping with his family on the rooftop and State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE55 OF PAGE 89 56 other tenants were also sleeping there. In the midnight at about 1am, when she woke up, she saw accused was quarreling with his wife and his wife was weeping and going downstairs and her husband was with her, and at about 4.30am, when she went downstairs, she found Chhoti Devi was lying on the floor in a pool of blood and accused was not there.
37. PW4 Sunil Kumar has also deposed the same facts as stated by PW3. He has testified that on the intervening night of 11/12.05.2011, he was sleeping on the rooftop with his wife Nisha as it was summer season. Accused alongwith his wife and son were also sleeping on the rooftop and at about 1/1.30/2 am accused was forcing his wife to go downstairs, but she was not interested in going downstairs, thereafter, accused forcibly took his wife to the downstairs in a room, when he wake up at 4am, he heard voice of Hasina and when he came downstairs, he saw that Chhoti Devi was State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE56 OF PAGE 89 57 lying on the floor in a pool of blood in the room and accused was not present there. Similar facts have been deposed by PW5 Rajesh Kumar.
38. Testimony of PW6 Manju also proved that she found the dead body of Chhoti Devi (deceased) at about 4.30am lying in a pool of blood, when she reached at the room of accused and deceased. She has given reason for going to the room of accused that her husband and accused Amarjeet used to work as labourer and used to go for their work together at about 4/5am and on that day i.e. 12.05.2011 when accused Amarjeet did not come, she went to the house of accused to call him and saw that Chhoti Devi was lying on the floor of the room in a pool of blood. She has further proved that she has taken the deceased to the SGM Hospital. PW1 Hasina has also stated that she found the deceased lying in a pool of blood in the room at 4.30am, as when she went in her room after hearing the State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE57 OF PAGE 89 58 noise of crying of child. Nothing has come out in their cross examination, which could dent their testimonies except some contradictions regarding the timing when the accused had taken the deceased downstairs to the room and regarding the finding of deceased in a pool of blood, as some witnesses had told that, he has taken at 1am and another told that at 1.30am, and deceased was seen at 4am/4.30am. But in my view said contradictions are immaterial. Particularly when accused himself in his statement u/s. 313 Cr.PC has admitted that on the night of incident he has taken the deceased to downstairs. Thus, from the statement of aforesaid witnesses and from the admission in the statement u/s. 313 Cr.P.C. incriminating circumstances no. A to E as mentioned above have been proved beyond reasonable doubts.
39. Accused is the husband of the deceased, therefore, onus is on him to explain, why he has absconded himself, as it is State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE58 OF PAGE 89 59 held in the case Bhupinder @ Kale V State, dated 15.5.2012 passed in Crl. Appeal No.1397/2010. I have perused the said judgment. In this case it was held that if we examine the decisions of the Supreme Court on the point of death of a wife in her matrimonial house, we find that the decisions can be classified into under noted 4 broad categories: I. In the first category fall the decisions where it is proved by the prosecution that the husband was present in the house when the wife suffered a homicidal death and rendered no explanation as to how his wife suffered the homicidal death. (See the decisions reported as State of Rajasthan v Parthu (2007) 12 SCC 754, Amarsingh Munnasingh Suryavanshi v State of Maharashtra AIR 2008 SC 479, Ganeshlal v State of Maharashtra (1992) 3 SCC 106, Prabhudayal v State of Maharashtra (1993) 3 SCC 573, CRL.A. 1397/2010 Page 8 of 11 Dynaneshwar v State of Maharashtra (2007) 10 SCC 445, Trimukh Maroti Kirkan v State of Maharashtra (2006) 10 SCC 681, Bija v State of Haryana (2008) 11 SCC 242 and State of Tamil Nadu v Rajendran (1999) 8 SCC 679).
II. In the second category are the decisions where the prosecution could not prove the presence of State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE59 OF PAGE 89 60 the husband in the house when the wife suffered a homicidal death but the circumstances were such that it could be reasonably inferred that the husband was in the house and the husband failed to render any satisfactory explanation as to how his wife suffered a homicidal death. The circumstances where from it could be inferred that the husband was in the house would be proof that they lived in the house and used to cohabit there and the death took place in such hours of the night when a husband was expected to be in the house i.e. the hours between night time and early morning. (See the decisions reported as State of UP v Dr Ravindra Prakash Mittal (1992) 3 SCC 300 and Narendra v State of Karnataka (2009) 6 SCC 61).
III. In the third category would be proof of a very strong motive for the husband to murder his wife and proof of there being a reasonable probability of the husband being in the house and having an opportunity to commit the murder. In the decision reported as Udaipal Singh v State of UP (1972) 4 SCC 142 the deceased wife died in her matrimonial home in a room where she and her husband used to reside together. The accusedhusband had a very strong motive to murder the deceased which was evident from the letter written by him to his mistress, which letter clearly brought out the feeling of disgust which the accused had towards the deceased. The accused had the opportunity to commit the murder of the deceased as there was evidence to show the presence of the accused in the State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE60 OF PAGE 89 61 village where the house in which the deceased died was situated at the time of the death of the deceased. Noting the facts that the accused had a strong enough motive and an opportunity to murder the deceased, noting that there was no evidence that the appellant was seen in his house by anybody, the Supreme Court convicted the accused.
IV. In the fourth category are the decisions where the wife died in her matrimonial house but there was no evidence to show presence of the husband in the house at the time of the death of the wife and the time when the crime was committed was not of the kind contemplated by the decisions in category II and was of a kind when husbands are expected to be on their job and there was either no proof of motive or very weak motive being proved as in the decision reported as Khatri Hemraj Amulakh v State of Gujarat AIR 1972 SC 922 and State of Punjab Vs. Hari Kishan 1997 SCC Cri. 1211.
The present case falls in the second category, as prosecution through the testimony of PW3,4 and 5, has been able to prove that accused/husband was at home when the deceased was stabbed.
State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE61 OF PAGE 89 62
40.In his statement u/s. 313 Cr.P.C., accused has given the explanation of death of deceased in question no.4 of the statement u/s. 313 Cr.P.C. that, he was insisting his wife to have physical relation with him as for last many days they had not established such relations but his wife was against that and she told him that, she was not interested in him and she refused to have any such relation with him and went downstairs. He followed her to his room with a view to make her understand that being husband and wife they should honour the relationship but during this conversation itself she got infuriated and took a kitchen knife and hit herself.
41. I am agree with the contention of ld. Amicus Curaie that it is not possible for the accused to find out any independent witness to prove his defence, as dispute was between him and deceased occur in the four corner of the wall of the room. But accused has not examined any witness to prove the fact that even on the day prior to State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE62 OF PAGE 89 63 the incident, there was dispute between accused and deceased. It has come in the evidence of PW4 and PW10 that Raj Kumar (nephew of accused) was also residing with them, hence, he might be aware about their disputes or at least he could prove that the relation between him and deceased were strained. Further, the testimony of PW14 Dr. Manoj Dhingra, Incharge mortuary, SGM Hospital, is very important, which could prove that the injury was self inflicted or not. In his Postmortem Report Ex.PW14/A, he has mentioned that deceased died due to stab injury. No suggestion has been given to the doctor that injury could be self inflicted. Neither any other Doctor has been examine in this regard. Further accused has admitted that in his presence deceased has stabbed herself. But he has not taken her to the hospital rather he has absconded from the spot. The conduct of the accused is quite unnatural. He has not examined those relative or friend whom he has gone to call to State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE63 OF PAGE 89 64 console her and asked her not to repeat such act. Further testimony of PW1, PW3, PW4, PW5 and PW6 proved that deceased was found in pool of blood, which means lot of blood had oozed out from her injuries after stabbing which cannot be taken lightly. Therefore, the defence of the accused that he did not consider the injuries much serious appeared to be unsustainable and afterthought.
42. As far as absconding of the accused is concerned, in my view it is a strong circumstances against the accused, as it is held in Virender Kumar Gera Vs. State : 2001 III AD (Delhi) 319, a Division Bench of Delhi High Court that, "the fact that accused absconding immediately after the incident was a strong factor to prove his guilt". In Amrit Lal Someshwra Joshi Vs. State of Maharashtra : AIR 1994 SC 2516 Hon'ble Supreme Court has held that, "the appellant who was employed as a domestic servant was found absconding after murder of his employer". Hence, absconding from spot instead of State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE64 OF PAGE 89 65 taking deceased to Doctor is an incriminating circumstance against the accused.
43. As far as contention of the ld. Counsel for the Amicus Curiae that prosecution has failed to prove any motive to kill the deceased, therefore, case of the prosecution is not proved. Section 8 of the Evidence Act, 1872 says that facts which show a motive for any facts in issue or relevant facts, are relevant. In a case resting on circumstantial evidences, motive bears important significance. Motive always locks up in the mind of the accused. Motive is the inducement for doing an act. People do not act wholly without motive. The evidence of motive becomes important once a crime is committed. The evidence of the existence of a motive is admissible. Motive is sometime difficult to unlock. The existence of motive assumes significance but the absence of motive does not necessarily discredit the prosecution case. The proof of motive is State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE65 OF PAGE 89 66 never an indispensable for conviction. The absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case.
It was observed in case State of U.P. V Babu Ram SC, 2000 (11) AD 285 as under : No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental imposition of an offender towards the person whom he offered.
44. As far as contention of the ld. Amicus Curiae that in the State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE66 OF PAGE 89 67 present case, prosecution has failed to proved the motive. In my view, in the facts and circumstances of the present case, it is very difficult, almost impossible for the prosecution to prove the motive, as at the time of incident only accused and deceased were in the room, where incident had happened, therefore, only both can reveal the motive. Why deceased cannot come to depose, whereas accused cannot be forced. From the facts and circumstances of the case, it appears that accused had stabbed the deceased in spur of moment, for the reasons best known to the accused, as he was only present in the room with the deceased. Hence, in such circumstances, failure of the prosecution to prove the motive is not fatal.
45. The another circumstance relied upon by the prosecution is the recovery of knife at the instance of accused. PW23 Inspector S.K. Jha/IO has deposed that on 12.05.2011 at State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE67 OF PAGE 89 68 about 6 pm, on a secret information, he arrested the accused Amarjeet and he gave his disclosure statement Ex.PW19/E and in pursuance of that disclosure statement he got recovered one blood stained knife from the gallery of first floor of his house, where he has hide behind the brick. It was seized by him vide seizure memo Ex.PW19/G, other police official i.e. PW19 SI Sandeep has also corroborated the testimony of PW23 Inspector S.K. Jha. As per Section 27 of the Indian Evidence Act, the operation of the confessional statement, which lead to the discovery of any fact which is admissible in evidence. Section 27 of the Indian Evidence Act is reproduced hereunder: Section 27 How much of information received from accused may be proved: Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to confession or State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE68 OF PAGE 89 69 not, as relates distinctly to the fact thereby discovered, may be proved.
The scope of 27 was explained by the Privy Council in Pulukuri Kottaya V Emperor, AIR 1947 PC 67. My Lordship has observed that, "Section 27 which is not artistically worded provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The Section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence. Normally State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE69 OF PAGE 89 70 the section is brought into operation when a person in police custody produces from some place of concealment some object, such as, a dead body, a weapon or ornaments, said to be connected with the crime of which the informant is accused."
46. Hence, in view of the aforesaid case, the confession of the accused to the extent of recovery of knife is admissible in evidence. Ld. Amicus Curiae has argued that the recovery has not been effected from the accused, but the same has been planted upon him and due to said reason no public person have been joined in the investigations. He further argued that when first time police official visited to the spot they thoroughly inspected the spot as stated by them in their statement, but they did not find anything, which prove that the recovery of knife has been planted upon the accused. On the other hand ld. Addl. PP for the State has contended that the knife has been hided by the accused under a brick in the State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE70 OF PAGE 89 71 gallery of his house, therefore, same was not found, when police official first visited the spot and later on same was found. In my view, the recovery of knife cannot be doubted merely on the ground that, prosecution has not joined any independent witness though, I am agree to give credibility, prosecution should have join independent witnesses. The recovery has been effected from the gallery of the house of the accused, where he had concealed the knife under the brick, hence, it is quite possible that on the first visit of the police officials could not find it, as police official may have inspected only the room and not in the gallery/ chhajja, as no eyewitness has stated in his testimony that they inspected the Chajja. It is settled law that recovery has to be seen under the circumstances of other evidence. Recovery of weapon of offence without connecting with other circumstances has no value. FSL Report Ex.PW23/H proved that the knife was blood stained and Biological Report proved that same was State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE71 OF PAGE 89 72 human blood. PW14 Dr. Manoj Dhingra in Postmortem Report Ex.PW14/A has opined death of deceased was caused due to haemhorrage and shock consequent upon stab injury No.1, which was caused by sharp edged weapon and sufficient to cause death in ordinary course of nature and has further opined in his subsequent opinion Ex.PW14/B that stab injury No.1 could be possible by knife produced in sealed pullanda by the IO. Thus, from the testimony of PW14, it is proved that deceased had died due to stab injury caused by the knife recovered from the accused.
47. On cumulatively analyzing all the circumstances appearing against the accused, I am of the view that prosecution has been able to establish through Ocular testimony of PW1, PW3, PW4,PW5 and PW6, who are the independent witnesses, that accused forcibly took the deceased Chhoti Devi to the downstairs at about 1.30am. At 4/4.30 am the deceased was found dead, which State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE72 OF PAGE 89 73 proved that, he was last person with the deceased when she was alive. And recovery of the weapon of offence at his instance and his absconding from the spot after the incident. He had failed to prove his defence taken in the statement u/s. 313 Cr.P.C. he and deceased have quarreled over the issue of sexual intercourse and decease stabbed herself. Hence, prosecution has been able to prove complete chain of incriminating circumstances against the accused which point towards the guilt of accuse and completely ruled out that ant other person except accused Amarjeet has caused the death of deceased Chhoti Devi. Hence, I held that accused has caused the death of his wife/deceased Chhoti Devi.
48. ld. Defence counsel had contended that even if all the evidence are admitted to be correct, even then it is not a case of murder punishable u/s. 302 IPC rather it is a case of of Culpable Homicide not amount to murder which is punishable u/s 304 IPC as accuse has no intention to cause the death of the deceased or State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE73 OF PAGE 89 74 knowledge that bodily injury inflicted by the accused would have caused the death of the deceased.
49. Section 299 IPC deals with culpable homicide. It reads as under :
299. Culpable Homicide : Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Section 299 has following essentials:
1. Causing of death of a human being.
2. Such death must have been caused by doing an act
i) with the intention of causing death; or
ii) with the intention of causing such bodily injury as is likely to cause death; or
iii)with the knowledge that the doer is likely by such act to cause death.
Section 300 IPC. Murder : Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death; or 2ndly--If it is done with the intention of causing such bodily injury as the offender knows to be State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE74 OF PAGE 89 75 likely to cause the death of the person to whom the harm is caused, or 3rdly--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1....
Exception 2....
Exception 3....
Exception 4....
Exception 5....
In section 300 IPC, the definition of culpable homicide appears in an expanded form. Each of the four clauses requires that the act which causes death should be done intentionally, or with the knowledge or means of knowing that death is a natural consequence of the act. An offence cannot amount to murder unless it falls within the definition of culpable homicide; for this section merely points out the cases in which culpable homicide is murder. Putting it shortly, all acts of killing done: State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE75 OF PAGE 89 76
i) with the intention to kill, or
ii) to inflict bodily injury likely to cause death, or
iii)with the knowledge that death must be the most probable result, are prima facie murder, while those committed with the knowledge that death will be a likely result are culpable homicide not amounting to murder.
In Laxminath v. State of Chhattisgarh AIR 2009 (SC) 1383 Hon'ble Supreme Court has made distinction between Section 299 and 300 IPC as under:
The academic distinction between 'murder and culpable homicide not amount to murder' has always vexed the Courts. The confusion is cause, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be keep in focus the keywords used in the various clauses of Section 299 and 300. The following comparative table will he helpful in appreciating the points of distinction between the two offences".
Section 299 Section 300
A person commits culpable Subject to certain exceptions,
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77
homicide, if the act by which culpable homicide is murder, the death is caused is done if the act by which the death is
(a) with the intention of caused is done.
causing death
1) With the intention of causing death;
2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused;
(b) with the intention of causing such bodily 3) With the intention of causing bodily injury as is likely to injury to any person, and the bodily cause death; injury intended to be inflicted is sufficient in the ordinary course of nature to cause death;
(c) With the knowledge 4) With the knowledge that the act is that .... the act is likely so imminently dangerous that it must to cause death. in all probability cause death, or such bodily injury as is likely to cause death.
9. "Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE77 OF PAGE 89 78 would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the "intention to cause death", is not an essential requirements of clause (2). Only the intention causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim., is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration(b) appended to Section 300. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender.
Instances of cases falling under clause (2) of section 300 can be where the assailant causes death by a fistblow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of the particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special rality of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of Section 300, instead of the words "likely to cause death" occurring in the State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE78 OF PAGE 89 79 corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature"
have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words"bodily injury.... sufficient in the ordinary course of nature to cause death"
result of the injury, having regard to the ordinary course of nature.
10. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant and Anr. v. State of Kerala, (AIR 1966 SC 1874) is an apt illustration of this point. State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE79 OF PAGE 89 80 In case State of Andhra Pradesh vs Rayavarapu Punnayya & Another 1977 AIR 45, 1977 SCR (1) 601, Hon'ble Supreme Court observed as under : "Whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder', on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such casual connection between the act of the accused and the death, leads to the, second stage for, considering whether that act of the accused amounts to culpable homicide as defined in s.299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of s. 300, Penal Code, is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of 'murder' contained in s. 300, if the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of s.304, depending, respectively, on whether the second or the third clause of s.299 is applicable. If this question is State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE80 OF PAGE 89 81 found in the positive, but the case comes within any of the Exceptions enumerated in s.300, the offence would still be 'culpable homicide not amounting to murder', punishable under the First Part of s.304, Penal Code".
It was further observed as under : "In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder', is 'culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, culpable homicide of this first degree. This is the gravest form of culpable homicide which is defined in s.300 as 'murder'. The second may be terms as 'culpable homicide of the second degree'. This is punishable under the 1st part of s.
304. Then, there is 'culpable homicide of the third degree.' this is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second Part of s. 304".
State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE81 OF PAGE 89 82
50. Now reverting back to the facts of the present case, as stated above, from the evidence of the aforesaid witnesses, it is proved that accused has intentionally stabbed the deceased, which resulted into her death. But, no witness has deposed there there was any enmity between the accused and deceased. Furthermore, The postmortem report Ex.PW14/A proved that there was only one injury i.e. stab injury. The injury has been caused by a knife which is kitchen knife. Hence, from the evidence produced, it is not proved that, accused has any premeditated intention to cause the death of his wife. It appears that due to sudden quarrel between accused and deceased, he became infuriated and within spur of moment he had stabbed the deceased from a knife which may be lying in the said room. Hence, circumstances suggest that he may have intention to injured her, but, he has no intention to kill her, otherwise, he would have given multiple blows, which is not the case. State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE82 OF PAGE 89 83
51. Considering all the facts and circumstances and judicial pronouncement the offence committed by the accused cannot be terms as 'murder', as defined in Section 300 IPC but it is culpable homicide not amounting to murder, as defined u/s.299 (3) IPC.
52. Hence, I convict accused Amarjeet for culpable homicide not amounting to murder, which is punishable under Section 304 Part1 of Indian Penal Code. Now to come up for order on sentence.
Announced in the open court (SANJEEV KUMAR)
On 25.07.2012 Addl. Sessions Judge
Rohini Courts: Delhi.
State Vs Amarjeet//FIR NO.172/11
PSVIJAY VIHAR// U/S. 302 IPC PAGE83 OF PAGE 89
84
IN THE COURT OF SH. SANJEEV KUMAR
ADDL. SESSIONS JUDGEI(OUTER): ROHINI COURTS: DELHI SC No.76/2011.
U/S.302 IPC.
FIR No.172/11.
PSVIJAY VIHAR.
STATE VS AMARJEET S/O. SHANKAR SAHNI, R/O.
X1/3, 4, 1ST FLOOR, BUDH VIHAR,
PHASE1, C/O. LILA WATI, W/O. LATE
DHARAMBIR.
PERMANENT RESIDENT OF:
VILLAGESHIVDASPUR, POST OFFICE
VISOTHA, PSKATRA, DISTRICT
MUZZAFFARPUR, BIHAR.
ORDER ON SENTENCE
Present: Shri S.C. Sroai, ld. Addl. PP for the State.
Convict Amarjeet is in JC.
Shri Hakikat Yadav, ld. Proxy counsel for ld. Amicus Curiae Shri Sachin Dev Sharma for convict.
1. Brief facts of the case are that on 12.5.2011 Convict Amarjeet called his wife downstairs at about 1 am and later on his wife was found dead. Vide judgment dated 25.07.2012, accused Amarjeet was held guilty for committing culpable homicide not State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE84 OF PAGE 89 85 amounting to murder and was convicted for offence punishable under Section 304 Part1 of Indian Penal Code.
2. It is argued by Shri Sachin Dev Sharma, ld. Amicus Curiae for convict that convict is a young man, aged about 31 years, and he has a son aged 3 ½ years and he is the sole bread earner of his family.
3. On the other hand, ld. Addl. PP for the State submits that accused has caused the death of his wife Chhoti Devi without any reason and thus he should be given maximum sentence, as prescribed under the statute.
4. I have heard the rival submissions and gone through the record.
5. The protection of society by stamping out criminal proclivity is essential function of state. It can be achieved by imposing appropriate sentence. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts for imposing appropriate sentence. Any definite formula relating to imposition of sentence cannot be laid State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE85 OF PAGE 89 86 down. The object of sentencing is that the offenders does not go unpunished and the justice be done to the victim of crime and the society. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. The measure punishment in a given case must depend upon the gravity of the crime; the conduct of the offender and the defence less and unprotected state of the victim. Imposition of appropriate punishment is the way adopted by the courts for responding the society's desire for justice against the criminals. Justice demands that courts should impose punishment fitting to the crime. The Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.
It was held in the case of Siddarama & Ors. V State of Karnataka, (2007) 1 SCC (Cri) 72 : the object should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE86 OF PAGE 89 87 sentencing process has to be stern where it should be.
Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences relating to narcotic drugs or psychotropic substances which have great impact not only on the health fabric but also on the social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time or personal inconveniences in respect of such offences will be result wise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system.
In case State of Punjab V Prem Sagar and Ors. (2008) 7 SCC 550 it was observed that the Indian Judicial System has not been able to develop legal principles as regards sentencing. It was further observed that whether the court while awarding sentence would take recourse to the principle of deterrence or reform or invoke the doctrine of proportionality would depend upon the facts and circumstances of each case and while doing so nature of State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE87 OF PAGE 89 88 offence said to have been committed by the accused plays an important role. A wide discretion is conferred on the court but said discretion must exercise judicially while sentencing an accused. It would depend upon the circumstances in which the crime has been committed and the mental state and the age of the accused is also relevant.
6. Section 304 part 1 of Indian Penal Code prescribed punishment for culpable homicide not amounting to murder as imprisonment of life or imprisonment either description for a term, which may extended to 10 years and also liable for fine.
7. In this case as stated above, convict has stabbed his wife and caused her death, but has he has one child to look after, therefore, in the facts and circumstances of the case, in my view, punishment for 10 years RI would be sufficient to met the end of justice. Hence, convict Amarjeet to undergo sentence for 10 years RI with fine of Rs.5,000/. In default of payment of fine, he shall further undergo SI for Six Months.
8. The case property is confiscated to the State. Benefit of Section 428 IPC be given to the convict. Committal warrants be issued against the convict. A copy of the judgment and order on State Vs Amarjeet//FIR NO.172/11 PSVIJAY VIHAR// U/S. 302 IPC PAGE88 OF PAGE 89 89 sentence be supplied to the convict free of cost forthwith. The file be consigned to the record room.
Announced in the open court (SANJEEV KUMAR)
On 30.07.2012 Addl. Sessions Judge
Rohini Courts: Delhi.
State Vs Amarjeet//FIR NO.172/11
PSVIJAY VIHAR// U/S. 302 IPC PAGE89 OF PAGE 89