Delhi District Court
State vs Raj Kumar @ Tillu @ Kanwar Singh on 20 August, 2019
IN THE COURT OF SH. VIDYA PRAKASH:
ADDITIONAL SESSIONS JUDGE / NORTH EAST:
KARKARDOOMA COURTS: SHAHDARA: DELHI.
Sessions Case No. 90/2018
CNR No. DLNE01-000998-2018
STATE Versus Raj Kumar @ Tillu @ Kanwar Singh
S/o Sh. Deshraj
R/o Lohar Talia Khai Par
Distt. Banda PS Kotwali Nagar, UP
and
Vill. Nag Nedhi, PS Hathras,
Distt. Banda, UP.
FIR No. : 586/97
PS. : Gokul Puri
U/s. : 302 IPC
Chargesheet Filed On : 02.06.1999
Date Of Allocation : 15.03.2018
Judgment Reserved On : 17.08.2019
Judgment Announced On : 20.08.2019
JUDGMENT:
1. The above named accused was sent to face trial in respect of offence punishable u/s 302 IPC on the allegations that he committed murder of his wife Guddi Rani @ Rizwana by strangulating her and thereby, he committed an offence punishable u/s 302 IPC.
BRIEF FACTS OF THE CASE
2. On 04.09.1997, on receipt of DD no. 3A, PW19 Inspector Vikramjeet Singh alongwith H.C. Govind (PW4) and Ct. Rajiv Raghav (PW9) had reached at House no. D-82, Gokal Puri, Delhi , where concerned SHO, ASI Laxmi SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 1 of 37 Narain and PW11 Ct. Ganga Singh were already present. PW2 Sh. Jugal Kishore and PW10 Sh. Dev Raj were also present there and they informed PW19 that one room of abovesaid tenanted premises was occupied by PW10 as a tenant however, accused Raj Kumar@ Tillu @ Kanwar Singh alongwith his wife namely Guddi @ Rizwana was residing in the said tenanted room with the permission of PW10. PW10 used to sleep in his vehicle parked at the tempo stand and used to visit the tenanted room for taking bath and for taking tea in the morning hours. PW10 further informed PW19 that in the morning of relevant day, when he peeped inside the room through a window, he noticed that one female was lying on the floor of the said room. PW19 got the Kunda of said floor broke opened through HC Govind (PW4) and Ct. Rajiv Raghav (PW9) and when they entered inside the room, they found that one lady had suffered strangulation with one red colour chunni wrapped around her neck. Two table fans, one wooden takhat, one empty beer bottle make Golgen Eagle, two half empty liquor bottles make Tohfa, one empty cold drink bottle of Fanta, two empty cold drink bottles of Pepsi and one empty cold drink bottle of Thumps Up, were lying inside the said room. Some burnt buds of biddies, one katori and two loose packets of 502 and Dholak brand biddies were also found lying in the said room. PW2 Judgal Kishore and PW10 Dev Raj also identified the photograph of accused Raj Kumar lying on a board in said room. Their respective statements were recorded by PW-19 Insp. Vikramjeet Singh and on the basis thereof, FIR in the instant matter was got registered by him.
3. It is further the case of prosecution that crime team was called at SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 2 of 37 the spot, which inspected the scene of crime. Photographs of the dead body as well as that of scene of crime were taken by the Photographer, rough site plan was prepared and exhibits were taken into possession vide separate seizure memos. During the course of investigation, postmortem examination on the dead body of deceased was got conducted and thereafter it was handed over to one of the relatives of deceased vide handing over memo Ex.PW10/B.
4. On 27.10.1997 PW7 Inspector Mahesh Kumar took the measurements of the place of incident at the instance of PW19 and prepared scaled site plan (Ex.PW7/A). Efforts were made to apprehend the accused at all his available addresses but he could not be tranced and was subsequently declared Proclaimed Offender by the Court of Ld. MM.
5. On 30.11.2017, on the basis of secret information, accused Raj Kumar @ Tillu was apprehended by PW12 SI Jai Singh of PS Mandir Marg and he was arrested vide arrest memo Ex. PW12/A. His personal search was conducted vide memo Ex. PW12/B and his statement Ex. PW12/E was recorded. Information regarding arrest of accused Raj Kumar was given to PW17 ASI Roshan Lal of PS Gokal Puri, which was recorded vide DD no. 76 Ex. PW17/A.
6. On 5.12.2017, PW18 Inspector Sanjay Kumar alongwith Ct. Monu (PW15) went to Karkardooma Courts and formally arrested accused Raj Kumar @ Tillu in this case vide arrest memo Ex. PW15/A; recorded his disclosure statement Ex. PW15/B and also prepared pointing out memo Ex. PW2/E of the place of occurrence at the pointing out of accused. On 20.2.2018, Supplementary SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 3 of 37 charge sheet was prepared regarding arrest of accused and was filed before the Court of Ld. MM.
7. After compliance of section 207 CrPC, learned MM committed the case to the Court of Sessions as offence punishable u/s 302 IPC was exclusively triable by it.
8. Vide order dated 24.04.2018, my learned Predecessor framed the charge for offence punishable u/s 302 IPC against the accused. Accused pleaded not guilty and claimed trial.
BRIEF FACT
9. In order to prove the charges, the prosecution examined as many as 19 witnesses.
10. Statement u/s 313 CrPC of accused was recorded.
11. Evidence led by prosecution may be noted in order to see as to how the prosecution story has been unfolded by its witnesses. INVESTIGATION WITNESSES
12. PW-1 is Brahm Singh. He deposed that in the year 1997, he was doing the work of photography in his shop being run in the name and style of Bharat Studio. On 4.9.1997, on being called by the IO, he reached at House no. D-382, Gokal Puri, where dead body of a lady was found lying on the floor in a SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 4 of 37 room. He took photographs of the dead body and of the scene of crime from different angles. He exhibited the said photographs on record as Ex. PW1/A to Ex. PW1/O.
13. PW-3 is SI Jeet Singh, who was working as Duty Officer on 8.9.1997 and had taken into possession two sealed pullandas bearing seal of NK, one sealed plastic dibba sealed with the seal of NK and one sealed envelope sealed with seal of NK alongwith sample seal, vide seizure memo Ex. PW3/A.
14. PW4 is Retired SI Govind Singh. He deposed that on 4.9.1997, on receipt of DD no. 3A by SI Vikramjeet Singh regarding death of a lady at House no. D-382, Gokal Puri, he alongwith Ct. Rajeev had accompanied SI Vikramjeet Singh to the aforesaid address, where other police officials were already present. A room on first floor was found locked from outside and a lady was lying dead in the said room on the floor. One Jugal Kishore, landlord of the said house was also present there. Name of deceased was revealed as Guddi Rani W/o Kawar Singh @ Tillu. Lock of said room was broke opened and they all entered into the room. At that time, two table fans were found kept near the dead body which were on. One beer bottle make Golden Eagle was lying in the Western side of the takhat in the room. Two half bottles having some chance prints and four soda bottles i.e. one Fanta bottle , two Pepsi and one thumps up and some buds of biris in a bowl were also lying near the Southern and Western side legs of the takhat. Inquiries were made from Jugal Kishore and his statement was recorded. FIR was got registered and crime team was called, which inspected the scene of SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 5 of 37 crime and took photographs of dead body as well as of scene of crime. Rough site plan of the place of occurrence was prepared and exhibits were lifted from the spot and were taken into possession vide separate seizure memos.
15. PW5 is Retired SI Mohd. Shakir, who got executed the NBWs as well as process u/s 82 & 83 Cr.P.C against accused Kawar Singh @ Tillu @ Raj Kumar. He exhibited his reports as Ex. PW5/A, Ex. PW5/B and Ex. PW5/C respectively in that regard.
16. PW6 is ASI Arun Kumar, who was posted as Constable/Finger Print Proficient in East District, Crime Team and had examined two empty Pepsi bottles and one Fanta bottle, which were found kept in one room at the place of occurrence. He deposed that no chance prints were found on the aforesaid bottles. One empty half bottle of country made liquor make Tohfa and one empty bottle of beer of Golden Eagle make were also found kept in that room . Some chance prints could be lifted from those bottles and he had advised SI Vikramjeet Singh to send the said two bottles to lab for examination and for developing chance prints of those bottles for further comparison. PW6 proved his report as Ex. PW6/A.
17. PW7 is Inspector Mahesh Kumar who was working as Draftsman on 27.10.1997 and had prepared scaled site plan of the place of incident on the basis of his rough notes and measurements and exhibited the said scaled site plan as Ex. PW7/A. SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 6 of 37
18. PW9 is HC Rajiv Raghav who on receipt of DD no. 3A on 4.9.1997 by SI Vikramjeet Singh, had accompanied SI Vikramjeet Singh and PW4 SI Govind Singh, to the aforesaid address. He has deposed on the lines of PW4 SI Govind Singh.
19. PW11 is ASI Ganga Singh who also deposed on the lines of PW9 HC Rajiv Raghav and PW4 SI Govind Singh, with further deposition that he had also handed over the sealed pullandas including sample seal given to him by doctor concerned to DO HC Jeet Singh, vide seizure memo Ex. PW3/A.
20. PW12 is SI Jai Singh from P.S. Mandir Marg, who on the basis of secret information received, had apprehended and arrested the accused on 30.11.2017 vide arrest memo Ex. PW12/A. He had also conducted personal search of accused vide memo Ex. PW12/B and had recorded his disclosure statement Ex.PW12/E.
21. PW13 is ASI Inder Singh and PW14 is HC Ritul who both had accompanied PW12 SI Jai Singh on 30.11.2017 during the apprehension and arrest of accused Raj Kumar. Both of them deposed on the lines of PW12 SI Jai Singh.
22. PW15 is Ct. Monu Kumar who on 5.12.2017 had joined the investigation of the case alongwith Inspector Sanjay Kumar. He deposed that on the said date, he alongwith the IO reached at Karkardooma Courts, where accused Raj Kumar @ Tillu @ Kunwar Singh @ Salim was arrested after taking SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 7 of 37 permission from the Court . One day PC remand of accused was obtained during which, accused took the police to House no. D-382, 1 st Floor, Gokal Puri, Delhi where complainant Jugal Kishore identified him as a person who had killed his wife Guddi Rani by strangulating with a chunni in his room and had run away from the spot. Thereafter accused had pointed out the place in the room at first floor where he had killed his wife by strangulating her throat in the beginning of September 1997 and had run away after locking the door of his room. Site plan of the place of occurrence was prepared, statements of witnesses were recorded and after returning back to PS, accused was lodged in lockup.
23. PW-17 is ASI Roshan Lal who was working as Duty officer on 30.11.2017 at PS Gokalpuri and had received the information from PS Mandir Marg regarding arrest of accused Raj Kumar who had previously been declared PO in the present FIR. The said information was recorded vide DD no. 76. PW- 17 has proved the same as Ex. PW17/A.
24. PW-18 is Inspector Sanjay Kumar who had arrested accused Raj Kumar @ Tillu @ Kanwar Singh in the present case on 5.12.2017 from Karkardooma Court. He has deposed on the lines of PW15 Ct. Monu Kumar.
25. PW-19 Inspector Vikramjeet Singh is IO of the case. He deposed that on 4.9.1997, on receipt of DD no. 3A, he alongwith HC Govind and Ct. Rajiv Raghav reached at House no. D-82, Gokal Puri. ASI Laxmi Narain and Ct. Ganga Singh were already present at the spot. One room situated on the first floor of the said house was found locked from outside . The landlord namely Jugal Kishore of SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 8 of 37 aforesaid house and the tenant namely Devraj of said room were also present there. Both of them told PW19 that although Devraj was in occupation of said room as tenant but for the last 25-30 days or so, one Raj Kumar @ Tillu @ Kanwar Singh and his wife Guddi were residing in the said room with the permission of Devraj. Devraj used to sleep in the vehicle parked at the tempo stand, however, he occasionally used to visit the tenanted room for taking bath and for taking tea in the morning hours.
26. He further deposed that Kundi of door of said room was broke open and the police team entered inside the room and found one lady having suffered strangulation with one red chunni wrapped around her neck. Two table fans were working and were lying on the floor of said room. One empty beer bottle of make Golden Eagle, two half empty liquor bottles make Tohfa, one empty cold drink bottle of Fanta, two empty cold drink bottles of Pepsi and one empty cold drink bottle of Thumps Up were also lying inside the said room. Some burnt buds of biddies were found lying in one Katori and two loose packets of 502 and Dholak Brand Biddies were also there in the said room. There was one slab situated in the room, on which one board having photograph of accused Raj Kumar @ Tilu @ Kanwar Singh was lying, which was identified by landlord Jugal Kishore and tenant Devraj. Thereafter (Ex.PW2/C) statement of landlord Jugal Kishore was recorded, on the basis of which, FIR at P.S. Gokal Puri was got registered.
27. PW-19 further deposed that crime team was called at the spot, which inspected the scene of crime and exhibits were also taken into possession SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 9 of 37 vide separate seizure memos. Postmortem on the dead body of deceased was got conducted from mortuary of GTB Hospital and dead body was handed over to one Shankar Lal. On 27.10.1997, rough site plan was prepared by SI Mahesh Kumar and efforts were made to apprehend the accused by conducting raids at his available address of native village as well as his possible hide outs but he could not be apprehended. During the further course of investigation, accused was got declared Proclaimed Offender on 9.3.1998 and chargesheet was filed before the Court of concerned MM.
MATERIAL / INJURED / EYEWITNESSES
28. PW2 is Jugal Kishore. He deposed that in the year 1997, two months prior to the incident, one Dev Raj had taken one room on the first floor on rent in his house. Dev Raj, who used to drive tempo, was living alone in the said room. About 25 days before the incident, accused Raj Kumar @ Kawar Singh had come alongwith his wife Guddi to Dev Raj and both Raj Kumar and his wife started living in the room of Dev Raj. Dev Raj used to come to his room occasionally in the evening and most of the time, he used to stay outside. On 3.9.1997 in the morning, Dev Raj had left his room with his tempo and Raj Kumar and his wife remained in the room till 6:00 pm. After that, Guddi had gone out of the room for purchasing rice. Thereafter, Dev Raj had come back at about 9:00 pm. On seeing his room locked, he asked PW2 about the key of the room, upon which, PW2 informed Dev Raj that no such key was handed over to him. On the next day in the morning, Dev Raj had again come and told PW2 that the room was found locked from outside and fans were on in the room. Guddi was SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 10 of 37 lying on the floor. After that, PW2 went upstairs to the room of Dev Raj and from the window of the room, he saw that Guddi was lying on the floor. On being informed, police came there and broke open the lock of the room. They all entered into the room and saw that one red colour chunni was wrapped around the neck of Guddi. She was not responding and it was appearing that she was strangulated with Chunni. Accused Raj Kumar was not present there. Police called the photographer who took photographs of the dead body and scene of crime. Site plan was prepared, exhibits were lifted from the spot and dead body was shifted to mortuary of GTB Hospital. He further deposed that on 5.12.2017, accused Raj Kumar @ Tillu was brought in police custody when accused pointed out the room at the first floor of house and told that it was the same room in which he had strangulated his wife. PW2 exhibited the pointing out memo as Ex. PW2/E and photographs of deceased as well as scene of crime as Ex. PW1/A to Ex. PW1/O.
29. PW-10 is Sh. Dev Raj. He deposed that in the year 1997, he was residing as tenant in a room situated on 1 st floor of House no. D-382, Gokal Puri, Delhi belonging to one Jugal Kishore. Accused Kanwar Singh @ Tillu, who was resident of his native village, had come to him about 15-20 days prior to the incident. Said Kanwar Singh @ Tillu had come alongwith his wife and had requested PW10 to allow them to stay in his aforesaid tenanted room for few days till he makes necessary arrangement for accommodation in Delhi, to which PW10 agreed. Kanwar Singh @ Tillu started residing in room of PW10 alongwith his wife. PW10 used to sleep in his tempo during night time and sometimes, he SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 11 of 37 also used to sleep on charpai at Verandah situated outside his tenanted room. PW-10 further deposed that on 03.09.1997 at about 7:00 am, he had left his tenanted room for his occupation. At that time, Kanwar Singh @ Tillu and his wife were present in his tenanted room. At about 9:00 pm on that day, when PW10 returned back to his tenanted room, he found the said room lying locked from outside. He thought that Kanwar Singh @ Tillu and his wife might had gone outside and would be coming back. Thinking that they might have handed over the key of the tenanted room to the landlord namely Jugal Kishore, he made enquiry from Jugal Kishore with regard to key but Jugal Kishore told him that no such key was handed over to him. Thereafter, PW10 went to his parked tempo and slept over there. On the next morning at about 6:00-7:00 am, when he woke up and went to his tenanted room for taking bath, he still found his said room locked from outside. He peeped inside the room through a small window of said room and found that two table fans lying inside the room were switched on and wife of said Kanwar Singh @ Tillu was lying on floor of the said room. He called landlord over there and informed him about the said fact. Other nearby residents had also collected over there. Call was made to police at 100 number , upon which police arrived there and broke open the kunda of the door and entered inside the room and found wife of Kanwar singh @ Tillu lying dead. One red colour chunni was found wrapped around her neck and Kanwar Singh @ Tillu was found missing from the said room. On 8.9.1997, PW10 visited mortuary of GTB Hospital and identified the dead body of deceased vide identification memo Ex. PW10/A. The dead body of deceased was handed over to one Shanker Lal, SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 12 of 37 Relative of deceased.
MEDICAL / EXPERT WITNESS
30. PW-8 is Dr. N.K. Aggarwal, Director Professor and Head from the Department of Forensic Medicine, who had conducted postmortem examination on the body of deceased. He has proved his detailed postmortem report as Ex. PW8/A. STATEMENT OF ACCUSED
31. Incriminating circumstances appearing in evidence against accused were put to him, as required u/s 313 CrPC. Accused stated that he is totally innocent and was falsely implicated in this case. He has nothing to do with the murder of his wife. The police officials simply got him falsely implicated in order to work out this case as it was previously unsolved.
32. I have already heard Ms. Sushma Badhwar, Ld. Addl. PP for the State and Legal Aid Counsel Sh. Rishi Chawla, Advocate for the accused. I have also gone through the material available on record.
ARGUMENTS ADVANCED AND CASE LAW CITED
33. While opening the arguments, Ld Additional PP vehemently argued that all the prosecution witnesses have fully supported the case of prosecution in this case. In order to buttress the said argument, she referred to the testimonies of prosecution witnesses more particularly that of PW1 Sh. Braham Singh, PW2 SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 13 of 37 Sh Jugal Kishore and PW10 Sh. Dev Raj. She also referred to the medical evidence in the form of testimony of PW8 Dr. N.K. Aggarwal and postmortem report (Ex.PW8/A). She also submitted that there is recovery of ligature material i.e. one red colour chunni which was found wrapped around the neck of deceased who had suffered strangulation and died as a result thereof, besides recovery of one empty beer bottle (Ex.P-2), two half empty liquor bottles (Ex.P-3 and P-4), four empty cold drink bottles (Ex.P-5 to Ex.P-8), some burnt buds of biddies (Ex.P-10 colly.) lying in one katori and two loose packets of 502 and Dholak Brand biddies (Ex.P-11 colly.) from the scene of crime. She also contended that as per opinion of Autopsy Surgeon mentioned in PM report (Ex.PW8/A), the cause of death was axphysia as a result of ligature strangulation of neck. She further argued that the accused had fled away from the scene of crime after causing the murder of his wife, for which he failed to furnish any explanation during trial. Ld Additional PP, therefore, urged that accused should be convicted in respect of offence punishable U/s 302 IPC.
34. Per contra, Ld. Legal Aid Counsel vehemently argued on behalf of accused that the prosecution has failed to establish the charge levelled against the accused beyond shadow of doubt. He submitted that since PW-1 Brahm Singh could not produce negatives of the photographs (Ex.PW1/A to Ex.PW1/O), his testimony as well as those photographs should not be considered under the law. He further argued that the testimonies of PW-2 Jugal Kishore and PW-10 Dev Raj should also not be believed by the Court. He claimed that there is no evidence placed on record to show that PW-10 was tenant in the room from SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 14 of 37 which dead body of deceased was recovered, situated on first floor of property owned by PW-2 and there is no reliable evidence to establish that accused alongwith his wife ever resided therein at any point of time. He further argued that the ligature material i.e. chunni was never produced during trial and no motive whatsoever has been attributed by prosecution against accused for committing the murder of his wife. He also submitted that accused has explained in his statement u/s 313 CrPC that he was not present at the time of murder of his wife and subsequently after he acquired knowledge of the murder of his wife, he had gone to his village due to fear of his false implication by the police in this case. He further argued that no independent public witness was joined at the time of alleged seizure of aforesaid articles from the scene of crime and those articles are easily available in open market. Hence, the possibility of planting of those articles cannot be ruled out. Based on all these submissions, he submitted that reasonable doubt is created in the case of prosecution benefit of which must be given to the accused and he should be acquitted in this case.
35. It goes without saying that the case of prosecution hinges upon the circumstantial evidence as there is no direct evidence even alleged by prosecution in this case. It is settled law that criminal jurisprudence begins with the presumption that unless otherwise proved the person facing the trial would be deemed to be innocent. The burden to prove the charge against the accused is on the prosecution and not on the accused. The prosecution, if fails to connect the act of the accused with the ultimate crime and where the material links constituting the evidence are found missing, then the benefit thereof goes in SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 15 of 37 favour of the accused. Also, in a case based on circumstantial evidence, the settled legal position is that the circumstances from which the conclusion of guilt is drawn should be fully proved and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
36. As observed by the Apex Court in "Sharad Birdhi Chand Sarda Vs. State of Maharashtra", (1984) 4 SCC 116, the following five golden principles constitute the panchsheel of the proof of a case based on circumstantial evidence:-
a). the circumstances from which the conclusion of guilt is to be drawn should be fully established;
b). 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;
c). the circumstances should be of a conclusive nature and tendency;
d). they should exclude every possible hypothesis except the one to be proved; and
e). there must be a 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 have been done by the accused.
37. The accused has been charged with offence punishable U/s 302 IPC, which reads as under:-
302. Punishment for Murder :--
Whoever commits murder shall be punished with death, or SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 16 of 37 imprisonment for life, and shall also be liable to fine.
38. The essential ingredients of the offence under sec. 302 are as follows:-
1. Death of a human being was caused;
2. Such death was caused by or in consequence of the act of the accused;
3. Such act was done-
(a) with the intention of causing death, or
(b) that the accused knew it to be likely to cause death, or
(c) that the injury was sufficient in the ordinary course of nature to cause death.
39. In order to appreciate the evidence available on record in the light of offence charged against the accused, it would be appropriate to refer to the provision contained in Section 300 IPC which reads as under:-
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 Secondly:- If it is done 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, or Thirdly:-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 Fourthly:- 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.
40. In the landmark judgment of Virsa Singh v. State of Punjab reported in (1958) 1 SCR 1495, the Hon'ble Supreme Court has held that following are the four steps of inquiry involved in the offence of Murder as SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 17 of 37 provided in Section 300 IPC, clause thirdly:
"i. First, whether bodily injury is present; ii. second,what is the nature of the injury; iii. third, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended; and iv. fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature."
41. 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:-
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.
42. In order to bring home the guilt of accused in respect of offence of murder, the prosecution was required to prove as under:-
(a) That the death of Guddi Rani @ Rizwana was SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 18 of 37 homicidal in nature;
(b) That it was the accused who had caused bodily injury to the deceased Guddi Rani @ Rizwana;
(c) That the accused had intention to cause the death of deceased Guddi Rani @ Rizwana or that the accused knew it to be likely to cause death or that the accused was well aware that the injury caused to deceased, was sufficient in the ordinary course of nature to cause death.
The death of deceased Guddi Rani @ Rizwana was homicidal in nature
43. In order to prove the fact that death of deceased Guddi Rani @ Rizwana was homicidal in nature, the prosecution has led medical evidence in the form of testimony of PW8 Dr. N.K. Aggarwal, who has proved PM report dt. 08.09.97 as Ex PW8/A.
44. After noting down the injuries in PM report, PW8 Dr. N.K. Aggarwal gave his opinion that death of Guddi Rani @ Rizwana was due to axphysia as a result of ligature strangulation of neck. While entering into witness box, PW8 categorically deposed that ligature in the form of red colour chunni was found present around the neck of deceased and said chunni was having knot on left side of the neck. Ligature mark was present all around the neck. In the front, it was 7 cm below the chin and 7 cm above the supra-sternal notch. The width of the mark was 3 cm throughout. He also deposed that on dissection of neck, bruising of the muscle underneath the mark was seen and fracture of both the cornu of thyroid cartilage was present. Nothing material has come on record during cross examination of the aforesaid witness so as to discard his testimony SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 19 of 37 or to create any doubt in the opinion given by him in his report Ex PW8/A.
45. In view of the discussion made herein above and the medical evidence which has come on record, there is no iota of doubt that the death of deceased Guddi Rani @ Rizwana was homicidal in nature.
DEATH WAS CAUSED BY THE ACCUSED
46. The next important question which arises for consideration before the Court is as to whether prosecution has been able to establish that it was the accused who had caused the death of his wife namely Guddi Rani @ Rizwana. In order to prove the said fact, the prosecution has produced two witnesses namely PW2 Sh. Jugal Kishore and PW10 Sh. Dev Raj. It may be noted that PW10 was occupying one room as tenant on first floor of H.No. D-382, Gokal Puri, Delhi belonging to PW2. Although, Ld. Defence Counsel made feeble attempt to create doubt in the testimonies of both these witnesses by arguing that no document showing that PW-10 was tenant in respect of said room under PW- 2, has been seized during investigation or placed on record but said submission is found to be without any merit besides being contrary to the defence raised by accused during trial. No doubt, both the said witnesses have testified that neither any rent agreement was executed with regard to said tenancy nor any rent receipt used to be issued but law allows tenancy to be oral one. There is no mandatory requirement that written agreement must be executed for creation of tenancy under the law. Rather, the perusal of testimonies of both these witnesses would demonstrate that even the accused was not disputing the factum of creation of tenancy by PW-2 in favour of PW-10 as relevant questions were put to SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 20 of 37 these two witnesses on behalf of accused. To cite few such questions, are the suggestions put to PW-10 that the tenanted room was situated in residential area and one could always come to said tenanted room from the terrace of adjoining houses during the relevant period and the possibility of any person to see as to what is happening in or outside his (PW-10) tenanted room from front side of the house in which tenanted room was situated. Likewise, suggestions have been put to PW-2 on behalf of accused that he was having friendship with PW-10 and they used to drink liquor together and it was PW-10 or some other person who had killed Guddi Rani. It is relevant to note that not even a suggestion was put to either of these two witnesses from the side of accused that PW-10 was not residing as a tenant in the aforesaid room during the relevant period or that no such tenancy between PW-2 and PW-10 came into existence. Moreover, the accused has nowhere specifically denied these facts even in his statement U/s 313 Cr.PC recorded by the Court.
47. PW2 Sh Jugal Kishore categorically deposed that about 25 days before the incident in question, accused alongwith his wife Guddi Rani had come to Dev Raj (PW-10) and started residing in the aforesaid tenanted room. He also deposed that Dev Raj occasionally used to visit his tenanted room and also that in the morning of 03.09.97, Dev Raj had left in his tempo, whereas accused and his wife were present in the tenanted room on that day till 6:00 pm, whereafter Guddi Rani had gone out of tenanted room for purchasing rice. He further deposed that Dev Raj had returned back at about 9:00 pm on that day and his tenanted room was lying locked at that time. He also explained that he came to SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 21 of 37 know about the factum of tenanted room being found locked, when Dev Raj came to him to fetch key of the room under the impression that accused would have handed over key of the room to him (PW-2) while leaving alongwith his wife to some place.
48. The aforesaid part of testimony of PW-2 stands duly corroborated from the testimony of PW-10 Dev Raj. No material contradiction whatsoever could be elicited during their respective cross-examination conducted on behalf of accused. So much so, not even a suggestion was put to them on behalf of accused that sequence of facts did not take place in the manner as stated by them.
49. It goes without saying that a skillful cross examiner must hear the statements in chief examination with attention, and when his turn comes, he should interrogate the witness on all material points that go against him. If omits or ignores then they may be taken as an acceptance of the truth of that part of witness evidence.
50. In the matter titled as "Babu Lal Vs. Caltax (India) Ltd.", AIR 1967 SC 2005, it was ruled as under:-
"xxxxxx generally speaking, when cross examining, a party's counsel should put to each of his opponents witness in turn, so much of his case as concerns the particular witness or in which he had a share............if asks no questions, he will be taken to accept the witness account.
xxxxxx"
51. In the matter titled as "Carapite Vs. Derderiem", A 1961 C 359, while relying the observation of Lord Herschell, Lord Halsbury observed as under:-
SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 22 of 37
"Wherever an opponent declines to avail himself of the opportunity to put his essential and material case in cross examination, it must follow that he believes in the testimony and is not disputing it at all . It is written to them that this is not merely a technical rule of evidence. It is a rule of essential justice. This is important test of checking the veracity and impeach the creditworthiness of a witness.
52. The aforesaid view has been followed by Hon'ble Supreme Court in "Ravinder Kumar Sharma Vs. State of Assam", AIR 1999 SC 3571 and also in "State of Uttar Pardesh Vs. Nahar Singh", AIR 1998 SC 1328.
53. Apart from above, it is important to note that both the aforesaid public witnesses i.e. PW-2 and PW-10 have categorically deposed that accused alongwith his wife (since deceased) were alone present in the aforesaid tenanted room in the morning of 03.09.1997 when PW-10 had left for his duty. It is also duly established from the testimony of PW-2, the relevant portion of whose testimony remained unchallenged and uncontroverted from the side of accused, that accused alongwith his wife were present in the tenanted room till 6:00 pm. However, the accused was found missing and tenanted room was found locked at 9:00 pm when PW-10 had returned back from his duty. The dead body of Guddi Rani was found lying on the floor of the tenanted room, when PW-2 and PW-10 peeped inside it through window installed in the room on next day morning.
54. Ld. Defence Counsel vehemently argued that time of death of Guddi Rani as per case of prosecution which is between 6:00 pm to 9:00 pm on 03.09.97, is different from the time of her death as per PM report Ex.PW8/A. In said PM report, Autopsy Surgeon has opined that time since death was about 4 ½ days. PM was conducted between 2:15 pm to 3:35 pm on 08.09.97. In this SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 23 of 37 manner, the death of Guddi Rani would have taken place somewhere at around 2:00 am during the intervening night of 03.09.17 / 04.09.17.
55. In "Pattipati Venkaiah Vs. State of A.P.", 1985 SCC (Cri.) 464, it was held by Hon'ble Apex Court that medical science is not yet so perfect as to determine the exact time of death nor can the same be determined in a computerised or mathematical fashion so as to be accurate to the last second. Similar view was taken in subsequent judgments reported as "Dasari Shiva Prasad Reddy Vs. Public Prosecutor, High Court of A.P.", (2004) 11 SCC 282, "Rama Reddy Rajesh Khanna Reddy and Anr. Vs. State of AP", (2006) 10 SCC 172 and "Rakesh And Anr. Vs. State of Madhya Pradesh", (2011) 9 SCC 698.
56. Having judged the facts of the present case on the touchstone of the law discussed by Hon'ble Apex Court in the above referred decisions, it cannot be said that there is much difference in the time of death of deceased Guddi Rani as mentioned in PM report viz-a-viz the case of prosecution contained in the chargesheet.
57. There is one important aspect involved in the case. It stands duly established from the testimony of PW-2 that accused was present in the tenanted room till 6:00 pm on that day, whereafter he was found missing from the said room after the murder of his wife Guddi Rani. However, accused has failed to furnish any proper explanation in that regard. Ld. Defence Counsel argued that accused was not present in the tenanted room at the time of murder of his wife and he got scared after acquiring knowledge regarding murder of his wife but SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 24 of 37 said submissions do not stand to any reason and are unacceptable in the eyes of law for few reasons. Firstly, accused never put any suggestion during cross- examination of PW-2 and PW-10 that he was not present in the tenanted room at the time of murder of his wife or that he had got scared as is being agitated now on his behalf. Secondly, the accused has failed to explain as to at what time, he had left the tenanted room on 03.09.97, to which place and for what purpose. These questions remained unanswered from his side during testimonies of prosecution witnesses. The accused opted not to lead any DE and thus, accused has failed to bring anything on record to answer the aforesaid questions. Thirdly, it is relevant to note here that the aforesaid tenanted room was found locked from outside when PW-10 returned back at 9:00 pm on that day and it continued to be so till next day morning as per testimonies of PW-2 and PW-10, which remained unchallenged and unrebutted on those aspects. The key of the said tenanted room was available either with PW-10 being tenant thereof or with the present accused as he alongwith his wife (deceased) were occupying the said room. Once it is shown that PW-10 was away for his duty on 03.09.1997, it was only the present accused who could have locked the tenanted room with the key in his possession. This circumstance rules out the possibility of any stranger or outsider having gained entry in the said tenanted room or having committed murder of Guddi Rani, as it would not have been possible for an outsider / stranger to put lock outside the tenanted room while fleeing away from there. It is nowhere the case of accused that the key and lock of the said tenanted room were lying openly inside the said room. It is also nowhere the defence raised by accused SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 25 of 37 that some outsider had committed the murder of his wife and fled away after putting lock on the door of said tenanted room. At the cost of repetition, it may be noted here that accused took defence during cross-examination of PW-2 that Devraj (PW-10) was having illicit relations with deceased and it was PW-10 who had committed murder of Guddi Rani. However, said defence was never put to PW-10 during his cross-examination. All these facts and circumstances suitably meet the argument raised on behalf of accused that possibility of any outsider having entered onto the roof of first floor in which aforesaid tenanted room was situated, from the roofs of the adjoining houses as admitted by PW-10, cannot be ruled out. Mere hypothesis raised on behalf of accused would not be sufficient to create reasonable doubt in the prosecution case or to seek benefit thereof under the law.
58. Apart from above, the natural conduct on the part of any husband whose wife is found to have been murdered, would have been to immediately visit the PS concerned and to call upon the police agency to find out the actual culprit rather than to disappear in the manner, as has been done by accused in this case. The aforesaid conduct of accused that he disappeared from the spot after the murder of his wife, is a material fact and is an admissible piece of evidence in terms of Section 8 of Indian Evidence Act, which reads as under:-
"8. MOTIVE, PREPARATION AND PREVIOUS OR SUBSEQUENT CONDUCT:-
Any fact is relevant which shows or constitutes or
preparation for any fact in issue or relevant fact.
The conduct of any party, or of any agent to any party, to
any suit or proceeding, in reference to such suit or
proceeding, or in reference to any fact in issue therein or SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 26 of 37 relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto".
59. In the matter reported at AIR 1970 SC 400, Hon'ble Supreme Court has held that the conduct of an accused during the course of investigation post crime, is relevant and is admissible U/s 8 of Indian Evidence Act.
60. There is no force in the argument raised on behalf of accused that there is absence of motive on the part of accused in committing the murder of his wife. Ld Defence Counsel contended that the prosecution has failed to prove as to why the accused would kill his own wife, due to which, the case of prosecution should be viewed with suspicion. The said argument is somewhat contrary to the defence raised by him during trial in as much as suggestion has been given to PW-2 that Dev Raj (PW-10) was having illicit relation with deceased and it was Dev Raj or some other person who had killed Guddi Rani. Apart from the fact that said defence was not put to PW-10 during his cross-examination, same would clearly constitute motive on the part of accused to cause murder of his wife in view of his suspicion that she was having an extra marital affair with any person.
61. Moreover, it is well settled law that motive is not always material in order to prove the case of prosecution. In the matter titled as "State Vs. David Rozario" reported at AIR 2002 SC 3272, it has been observed as under:-
''motive behind the crime is a relevant of which evidence can be given ............ proof of motive satisfy the judicial mind about the authorship of the crime but the absence does not ipso facto result in the acquittal of accused. Motive is not sine-qua-nun to prove the cases of the prosecution. Absence of proof only demands deeper SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 27 of 37 forensic search and can not do or undo the effect of evidence if otherwise is reliable and sufficient".
62. In the matter titled as "State of U.P. V Babu Ram" reported at SC 2000 (11) AD 285, it was held by Hon'ble Supreme Court 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.
63. In the matter titled as "Dr. Tarseem Kumar Vs. Delhi Admn." reported at (1994) Supp (3) SCC 767, it has been held as under:-
"Normally there is a motive behind every criminal act and that is why investigating agency as well as the Court while examining the complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. It has been repeatedly pointed out by this Court that where the case of the prosecution has been proved beyond all reasonable doubts on the basis of the materials produced before the Court the motive loses its importance. But in a case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. Of course, if each of the circumstances proved on behalf of the prosecution is accepted by the Court for purpose of recording a finding that it was the accused who committed the crime in question, even in absence of proof of a motive for commission of such a crime, the accused can be convicted."
64. The next bone of contention raised by Ld. Defence Counsel was that the testimony of PW-10 is liable to be discarded as he improved his version during trial viz-a-viz his police statement recorded during investigation. For the SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 28 of 37 said purpose, he drew attention of the Court to the relevant portion of chief examination of said witness, with which he was confronted during cross- examination. I have gone through the relevant portion of the testimony of PW-10 in the light of aforesaid submission but finds that there is no material improvement as such made by him. The only portion on which PW-10 is found to have been confronted is regarding the factum of empty bottles of liquor and some buds of biddies lying in the room, being told by him during chief examination but shown to be missing in his police statement Ex.PW10/DA. While appreciating the testimony of a witness and considering its evidentiary value, Court is required to consider various factors including the background of the witness, his educational status, etc. and also the fact that witness may not be able to recall the entire sequence of facts from his memory while disclosing / narrating the same before the police. It is quite natural that one or the other fact may have skipped from his mind while making the statement before the police, which seems to have occurred with PW-10 in this case. Hence, Court is of the view that the entire testimony of PW-10 cannot be disbelieved or thrown away on this ground alone, when his testimony is otherwise found to be reliable, truthful and inspires confidence of the Court.
65. There is no substance in the argument raised by Ld. Defence Counsel that PW-2 and PW-10 are stock witnesses of police and they have been introduced in this case in order to support the false story as propounded in the chargesheet. He had contended that PW2 and PW10 are interested witnesses and therefore, their testimonies should not be looked into. However, both the SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 29 of 37 aforesaid public witnesses i.e PW2 and PW10 have successfully withstood the test of cross examination. In other words, the accused could not elicit anything contrary to the case of prosecution through litmus test of their cross examination so as to disbelieve the testimonies of said two witnesses and there is nothing on record to suggest that both these witnesses are stock witnesses of the police. Rather, the depositions made by these two public witnesses have a ring to truth. Same are found to be quite natural, plain and thus, are trustworthy.
66. The next limb of argument raised by Ld defence counsel was that neither PW-2 Jugal Kishore nor PW-10 Devraj made any PCR call at 100 number in this case, which is against natural conduct of any human being. He contended that in case PW2 and PW10 happened to be present at the spot and had noticed body of Guddi Rani lying inside the tenanted room while peeping inside it through its window, then applying the test of a prudent person, they ought to have made PCR call at 100 number immediately after noticing the fact. Having not done so, the presence of said two witnesses at the spot becomes doubtful.
67. At the first instance, the aforesaid argument appears to be impressive but same does not carry any force in the eyes of law. No question was put to either of these two witnesses on behalf of accused as to why they did not make any PCR call at 100 number. Since none of the said two witnesses was afforded any opportunity to explain the reason for not making any such PCR call, no benefit thereof can be given to the accused. Moreover, it follows from the relevant portion of cross-examination of PW-10 that some other person had already made the said PCR call and it has also come during cross-examination of SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 30 of 37 PW-2 Jugal Kishore that 8-10 neighbourers had gathered at the spot and someone amongst them had informed the police.
68. There is no substance in the next argument raised on behalf of the accused that no public witness was joined at the time of recovery and seizure of above noted articles i.e. Ex.P-1 to P-12 (colly.). PW-2 Jugal Kishore and PW-10 Devraj are public witnesses in whose presence the aforesaid articles were recovered and seized by PW-19 Insp. Vikramjeet Singh, vide seizure memos Ex.PW2/A and Ex.PW2/B. The other bone of contention raised by Ld. Defence Counsel that said articles are easily available in the open market and possibility of planting those articles cannot be ruled out, is again found to be devoid of any merit. Firstly, no such suggestion was put on behalf of accused during cross- examination of relevant witnesses i.e. PW-2, PW-4, PW-10 and PW-19. Secondly, the photograph of accused, which is Ex.P-1, cannot be procured from market or planted as his photograph was found lying on board present inside the tenanted room and said photograph is shown to have been seized by PW-19 on 04.09.1997, vide memo Ex.PW2/A and at the time when accused was undisputedly not available before the police and was absconding. Thus, it was for the accused to explain as to how and under what circumstances, his photograph came to be found lying inside the tenanted room in case he was not residing therein at the time of murder of his wife. The said circumstance rather goes against him.
69. The accused does not deserve to be accorded any benefit of doubt merely due to non production of ligature material i.e. chunni during trial or on SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 31 of 37 account of discrepancy in rough site plan (Ex.PW19/B) and scaled site plan (Ex.PW7/A). During course of trial, IO was called upon to explain reason regarding non production of aforesaid ligature material. He filed written reply dt. 08.05.2019, wherein he informed that said ligature material was disposed of in the year 2003 by the then SDM Seelampur on the request of the then SHO PS Gokal Puri, as per relevant entry appearing in record concerning disposal of the case property checked by him. Same would clearly show that it was procedural lapse on the part of police authority, which seems to have occurred in the backdrop of the fact that accused was previously declared proclaimed offender in this case and file was consigned to Records on 28.07.2000 after recording the evidence u/s 299 CrPC in this case. However, the presence of said chunni wrapped around the neck of deceased, is clearly visible from the photographs (ExPW1/A to Ex.PW1/O) of the scene of crime where body of Guddi Rani was found lying, which were taken by PW-1 on 04.09.97 at the instance of IO of the case.
70. Even otherwise, it is well settled law that no benefit can be given to accused for the lapses, if any, found on the part of IO/police authority. Still if any authority is required in this regard, reference with advantage can be made to the judgments in the cases of "State of Gujarat Vs. Kishan Bhai", reported at 2014 (1) SCALE 177 and "Dayal Singh & Ors. Vs. State of Uttranchal", reported at 2012 (8) SCC 263.
71. Ld. Defence Counsel tried to displace the case of prosecution by arguing that PW-11 ASI Ganga Singh could not disclose the name of person who SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 32 of 37 had broken lock and kunda of the tenanted room. He also pointed out that PW-6 SI Arun Kumar deposed that no chance prints were lifted from scene of crime, whereas PW-4 SI Govind deposed that chance prints were lifted from the scene of crime and in any case, no such chance prints have been placed on record. Based on these, he urged that the case of prosecution should be viewed with suspicion. However, the said argument is bound to fail for the simple reason that the aforesaid contradictions, if any, are trivial in nature and do not go to the root of the prosecution case and are not sufficient to create any reasonable doubt in favour of accused.
72. It may be noted here that all the police witnesses examined during trial, have deposed on the lines of prosecution story with regard to relevant investigation carried out by them or in their presence and have also corroborated each other on material points. The accused could not discredit their testimonies during their cross-examination. There is no reason to ignore the photographs Ex.PW1/A to Ex.PW1/O merely because PW-1 who is the photographer, could not produce their negatives during trial. It is relevant to not that those photographs were taken by him on 04.09.1997 and his testimony was recorded during trial on 11.07.2018 i.e. after a considerable gap of 21 years. Moreover, PW-1 has sufficiently explained during chief examination itself that due to heavy rainfall, his shop was flooded and negatives of the aforesaid photographs were destroyed. Said portion of his testimony remained unchallenged from the side of accused. Further more, the said photographs are prepared with mechanical process and thus, there is no possibility of those photographs being fabricated by SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 33 of 37 IO in connivance with PW-1. This is more so when the accused has failed to show that PW-1 had any previous animosity or ill will against him at any point of time prior to 03.09.1997.
73. In view of the ocular evidence in the form of testimonies of PW-2 namely Sh. Jugal Kishore, PW-3 SI Jeet Singh, PW-4 SI Govind Singh, PW-8 Dr. N.K. Aggarwal (Autopsy Surgeon), PW-11 ASI Ganga Singh, PW-15 Ct. Monu Kumar, PW-18 Insp. Sanjay Kumar Singh and PW-19 Insp. Vikramjeet Singh, it has been duly established on record that it was the present accused who alone was present with deceased Guddi Rani inside the tenanted room and had committed her murder by strangulating her with the help of chunni found wrapped around her neck and had fled away after putting lock on the door of the said room.
DEATH OF GUDDI RANI @ RIZWANA WAS CAUSED WITH INTENTION OF CAUSING DEATH OR HAVING KNOWLEDGE THAT ACT OF ACCUSED WAS LIKELY TO CAUSE DEATH OR INJURY WAS SUFFICIENT IN ORDINARY COUSE OF NATURE TO CAUSE DEATH
74. Ld. Defence Counsel vehemently argued that the act of accused would not fall under any of the clauses provided in Section 300 IPC as there was no pre-mediated act on the part of accused. He referred to the allegations contained in the chargesheet in support of his contention that empty beer bottle, empty half bottles of liquor, empty cold drink bottles and some burnt buds of biddies were allegedly found lying near the body of deceased, which go to show that accused would have caused the murder under the influence of liquor and therefore, even if the entire case of prosecution is presumed to be correct, still at SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 34 of 37 the most, offence U/s 304-II IPC would be attracted in this case.
75. The aforesaid contention was repelled by Ld Additional PP who pointed out that accused had committed murder of his wife in full senses and he has failed to establish during trial that murder of Guddi Rani was committed under the influence of liquor. She also submitted that the conduct of accused in fleeing away from the spot and his continued abscondance, would also show that he had consciously committed her murder.
76. In "Laxminath Vs. State of Chhattisgarh" reported at 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 because of Courts losing sight of the true scope and meaning of the terms used by the legislative 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."
77. In the case titled as "State of Andhra Pradesh Vs. Rayavarapu Punnayya & Another" reported at AIR 1977 SC 45, 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, SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 35 of 37 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.99 is applicable. If this question is 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 termed 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."
78. Now adverting back to the facts of the present case. It is quite evident from the bare perusal of PM report (Ex PW8/A) that deceased Guddi Rani @ Rizwana was found to have suffered fracture of both the cornu of thyroid cartilage inside her neck, which goes to show that the accused had applied sufficient force while strangulating her. Moreover, the fact that deceased was found to have suffered external injuries in the form of multiple small abrasions on upper outer front of left side of chest, front of her right elbow and middle front of SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 36 of 37 her right arm, would also show that deceased would have resisted the act of accused in strangulating her to death, during which process she would have sustained those external injuries.
79. After considering the nature of injuries sustained by deceased Guddi Rani @ Rizwana and the discussion made hereinabove, there is no iota of doubt that accused was well within the knowledge of the fact that his act of strangulating Guddi Rani, was sufficient in the ordinary course of nature to cause death of his wife or was likely to cause her death. Thus, Court agrees with the submission made by Ld Additional PP that it is a clear cut case of offence of murder as punishable U/s 302 IPC and does not fall within any of the four exceptions to Section 300 IPC, as provided by the statute.
80. Applying the ratio of law laid down by Hon'ble Apex Court in the judgment Sharad Birdhi Chand Sarda supra, to the facts of the present case, Court is of the considered opinion that the prosecution has been able to prove complete chain of events which unerringly points out towards the guilt of accused herein beyond shadow of doubt. Consequently, accused namely Raj Kumar @ Tillu @ Kanwar Singh is hereby convicted for the offence U/s 302 IPC.
81. Let be be heard on the point of sentence.
Announced in open court Digitally signed by
on 20th day of August, 2019. VIDYA VIDYA PRAKASH
Location: Karkardooma
Court
PRAKASH Date: 2019.08.20
15:39:07 +0530
(VIDYA PRAKASH)
Additional Sessions Judge /
NE / KKD Courts / Delhi.
SC No. 90/2018 State Vs. Raj Kumar @ Tillu @ Kanwar Singh Page 37 of 37