Delhi District Court
St. vs . Ram Pardarth And Ors. on 12 October, 2011
SC no. 03/10
FIR no. 312/09
PS Binda Pur
St. Vs. Ram Pardarth and Ors.
IN THE COURT OF MS. MAMTA TAYAL
ADDL. SESSIONS JUDGE : DWARKA COURTS
NEW DELHI
SC No. 03/10
FIR No. 312/09
Police Station Bindapur
U/Section 302/342/34 IPC
Received on assignment 22.01.2010
Reserved for orders on 19.09.2011
Judgment announced on 29.09.2011
State V/s 1. Ram Pardharth Gami,
S/o Rudhal Gami,
R/o B26, Nand Ram Park,
Uttam Nagar, New Delhi.
2. Ashok Kumar,
S/o Ram Padharth Gami,
R/o B26, Nand Ram Park,
Uttam Nagar, New Delhi.
3. Manoj Kumar,
SC No. 03/10 1 of 41 D.O.J. 29.09.2011
SC no. 03/10
FIR no. 312/09
PS Binda Pur
St. Vs. Ram Pardarth and Ors.
S/o Ram Padharth Gami,
R/o B26, Nand Ram Park,
Uttam Nagar, New Delhi.
J U D G M E N T
1. The facts in brief as narrated in chargesheet, are that on 13.10.2009, at about 9.00 pm, complainant Dharmender along with his firend Manish Kumar was having juice in the shop of accused Ram Pardarth adjoining the cycle repair shop of his son Ashok which was closed at that time. Suddenly someone opened the shutter of the cycle repair shop and Dharmender saw accused Ram Pardarth with his sons Ashok and Manoj strangulating his brother Dinesh with a wire, inside the shop. On recognizing his brother, Dharmender immediately rushed to the shop of accused Ashok Kumar and shouted for help. On this, the accused persons left Dinesh and fled from there. Dharmender with the help of his friend Manish took Dinesh to hospital where he was declared brought dead. On statement of Dharmender, FIR was registered. Post mortem on the body of the deceased was conducted. All the accused persons SC No. 03/10 2 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
were arrested. They got recovered wire i.e. the weapon of offence and slippers of deceased. On completion of necessary investigation, accused persons were chargesheeted.
2. After supplying copies to the accused persons as per law, case was committed to court of sessions.
3. Charge under Sections 342/302/34 IPC was framed against all the accused persons after due deliberation. On being served with the same, the accused persons pleaded not guilty and claimed trial.
4. Prosecution was called upon to adduce evidence to establish its case as per law and it tendered 18 witnesses in support of its case. Thereafter, statements of accused persons were recorded u/s 313 Cr PC wherein they controverted the entire prosecution evidence as false and claimed innocence. They examined one Shrilal as DW1 and Dr. Chandrakant, Professor in Forensic Medicine as DW2 in their defence.
5. Final arguments were advanced and written submissions were also made on behalf of accused Ashok. I have gone through the entire records and carefully considered the matter.
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6. PW1 is ASI Hukam Chand, the then Duty Officer who had recorded the FIR Ex. PW 1/A and had made his endorsement Ex. PW 1/B on the rukka. PW2 HC Rajender is the concerned MHC(M) with whom the case property was deposited on different dates. PW3 Dr. Harvinder Singh had prepared the MLC Ex. PW 3/A of deceased Dinesh. PW4 Ct. Rakesh is the Duty Constable who had informed PS Bindapur about Dinesh having been brought dead in the hospital. PW5 Jitender, brother and PW10 Prabhu Ram, Uncle of deceased Dinesh had identified his dead body in the hospital vide their statements Ex.PW5/A and Ex. PW10/A respectively. PW6 ASI Khazan Singh, Incharge Crime Team had inspected the spot vide his report Ex. PW 6/A. PW7 Ct. Raj Kumar, the crime team photographer had taken photographs Ex. PW 7/A1 to A6, with corresponding negatives Ex. PW 7/B, of the spot. PW8 SI Mahesh Kumar, Draftsman had prepared the scaled site plan of the spot. PW9 Ct. Akhileshwar had collected the subsequent opinion of autopsy surgeon regarding the ligature material along with the sealed parcel vide acknowledgment Ex. PW 9/A. PW11 is SC No. 03/10 4 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
Dharmender, the complainant. PW12 Ct. Ramdhari and PW16 HC Mahavir Singh had joined investigation with the IO. PW13 Dr. Sushil Kumar Chaurasia, SR, Forensic Medicine Department had conducted post mortem on dead body of deceased Dinesh. PW14 HC Sitaram had delivered copies of the FIR to senior officers and Illaka MM. PW15 ASI Purshottam is the initial IO while PW17 Inspector Surender Kumar handled subsequent part investigation of the case. PW18 Inspector Brijesh is the main IO of the case.
7. PW11 Dharmender is the star prosecution witness. He testified on oath that on 13th October 2009 at about 88.30 pm he had met his friend Manish at Binda Pur Road at the juice shop of accused Ram Pardarth where the coaccused persons Manoj and Ashok i.e sons of accused Ram Pardarth were running their business of vegetable selling and cycle repair in the adjoining two shops. At that time, the shutter of Ashok's cycle repair shop was closed. While PW 11 was having juice with his friend, someone suddenly opened the shutter of the cycle repair shop and he saw his brother Dinesh (since deceased) inside the said shop being held by accused persons.
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Accused Ram Pardarth was standing on a bench behind Dinesh with a wire tied around neck of Dinesh while the other two accused persons standing on sides of Dinesh were keeping him down. On seeing this, Dharmender immediately ran towards the cycle shop. The accused persons fled away from the spot leaving Dinesh. PW11 along with his friend rushed Dinesh to DDU hospital where he was declared brought dead. He met some police officials in the hospital, narrated them the entire incident, and then returned home. ASI Purshottam came to his house and recorded his statement. Thereafter, he showed the place of incident to IO from where cycle brake wire and slippers of Dinesh were seized. In cross examination, PW 11 replied that house of Manish was at a walking distance of just 10 minutes from the juice shop while his own house was at a walking distance of about 15 minutes from the said shop and on that day they had gone directly to the juice shop after he was called by Manish on phone. He knew Manish for last about two years and they used to visit each other's house. They were served juice by someoneelse present at the shop of accused Ram Pardarth.
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They had been at the juice shop for about 1015 minutes, before the shutter was lifted. He admitted that there was a dhaba near the said cycle shop where 78 public persons were having food at that time and the other shops in the area were also open. He further stated that he remained in the hospital upto about 12 night. At that time his family members had also come there. He had met ASI Purushottam in the hospital but ASI did not record his statement nor made any inquiries in his presence from anyone in the hospital. He along with his family had returned home at about 12 night1.00 am and the police officials had come to his house and recorded his statement. IO had also prepared site plan at his instance. Thereafter PW 11 averred that he knew the accused persons for last about 56 years and he also knew that his brother Dinesh used to visit their shop. He was suggested that the shop keepers of the market had levelled allegations of theft against Dinesh which he denied. He also controverted that any criminal case was pending against Dinesh. He however admitted that on 14th October, 2009 he had heard the accused persons stating in PS that Dinesh had stolen mobile phone SC No. 03/10 7 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
of accused Manoj. He denied having heard of any ''lenden'' between Dinesh and Manoj at any time.
8. On being asked about the description of the person who had opened the shutter and the details of the shutter of the shop, PW 11 replied that he did not pay attention to the same. He then replied that there were 23 public persons who had come inside the shop while the others had remained outside. Immediately on seeing his brother, he had run towards him and seen the wire in the hands of accused Ram Pardarth which was tied around the neck of Dinesh. He had reached his brother within few minutes of shutter being opened and had removed him to the hospital in a TSR. In concluding part of his crossexamination conducted on behalf of accused Ashok, PW11 was suggested that on that day he (PW11) along with brother Dinesh had gone to the shop of accused Ashok to return the mobile stolen by Dinesh earlier and at that time, accused Ashok had asked Dinesh to return another mobile which was also stolen by Dinesh about 20 days prior to the incident, on which Dinesh informed Ashok that he had already disposed off the said SC No. 03/10 8 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
mobile and he had agreed to pay to Ashok a sum of Rs.2000 in lieu thereof. It was further put that thereafter, PW 11 had taken Ashok to his house to pay him Rs.2,000 leaving Dinesh alone locked inside the shop of Ashok and on return they had found Dinesh hanging from the ceiling of the said shop whereafter body of Dinesh was brought down with the help of Ashok and was taken to the hospital. PW11 denied all these suggestions and stuck to his stand. Thereafter, the witness was crossexamined on behalf of accused Manoj and Ram Pardarth wherein he denied that the said accused persons were not present inside the shop of accused Ashok or that they were arrested from their house by the police on 14.10.2009.
9. Ld. Defence Counsel has argued with much vehemence that the FIR in the present case was ante dated and ante timed as the statement of PW11 was manipulated by the police to suit its own purpose in order to falsely implicate the accused persons. Ld. Counsel urged that PW11 is not a witness of spot because it is too much of a coincidence that he had gone to the shop of accused persons only and was also having juice with his friend there at the SC No. 03/10 9 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
same time when his brother Dinesh was being murdered in shop of the accused Ashok. He continued that it is also unbelievable that anyone would have opened the shutter of the shop just in time for PW11 to witness the crime actually being committed by the accused persons. Ld. Counsel maintained that had Dharmender been actually present at the spot, he would not have gone to his home from hospital and would have insisted the police to register the FIR there and then which is not actually the case. The documents i.e. inquest papers as prepared by IO and submitted for post mortem also reveal that till that time only a DD entry was registered and no FIR was recorded due to which FIR number does not appear on those papers. Ld. Counsel drew attention of the court to the Post Mortem report wherein again only DD entry number and not FIR number is mentioned.
10. PW11 Dharmender has categorically stated that on the said day, he had gone to juice shop of accused Ram Pardarth on being called by his friend Dinesh and they had met directly at the juice shop which was half way between their houses. Hence SC No. 03/10 10 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
presence of Dharmender at the spot at the relevant time cannot be termed as unnatural. Furthermore, testimony of PW11 otherwise appears to be trustworthy, cogent and reliable and cannot be rejected on a hypothical plea that it is too much of a coincidence to be taken as true. The fact that Dharmender is deposing truthfully before the court, irrespective of any influence of police, can be gathered from the fact that he did not give his statement in line with the case as set up by the IO in the chargesheet about arrest of the accused persons and recovery of the articles at their instance. In contrast, he unhesistantly affirmed that he had seen the accused persons in the PS on 14th October, 2010 and that the wire and the slippers of Dinesh were seized by the IO before the arrest of the accused persons.
11. Besides this, even in crossexamination of PW11, his presence at the spot has not been disputed on behalf of the accused persons. In fact in crossexamination conducted on behalf of accused Ashok, it was suggested to PW11 that he had visited the shop of accused Ashok on that day with Dinesh to return a stolen mobile. It was further put to PW11 that thereafter, when Ashok SC No. 03/10 11 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
asked Dinesh to return another mobile which was also stolen by Dinesh about 20 days ago, Dinesh told him that he had already disposed of the said mobile and he agreed to pay Rs. 2000 in cash, in lieu thereof. Accused Ashok then went with PW11 to collect the said money from his house, leaving Dinesh alone in the cycle repair shop, closing the shutter from outside, and when they returned, they found Dinesh hanging from the ceiling inside the said shop. These suggestions as put to PW11 clearly establish that not only presence of PW11 at the spot but even presence of Dinesh inside the shop is admitted on behalf of accused Ashok. Furthermore, the fact that Dinesh was found dead inside the shop of Ashok is also not controverted.
12. In such scenario, the only factor which remains to be determined is whether death of Dinesh was suicidal or homicidal. Dinesh admittedly died of asphyxia which can be possible both in case of hanging as well as strangulation by ligature. Appearance of marks on dead body in both the said cases will however be different.
13. In case of hanging, ligature mark will be oblique encircling SC No. 03/10 12 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
the neck incompletely. It shall be high up the neck and neck will be stretched and elongated. Hyoid bone fracture may occur but it will be there only in the persons above the age of 40 years because in younger persons there is no calcification and bones are not hardened.
14. One of the several ways in which we can make out whether the death was due to hanging or strangulation is the shape of ligature mark. In case of hanging, the ligature mark is not found completely around the neck. There is a little gap between the ligature mark and suspension point. This is in sharp contrast to the ligature mark of strangulation which is seen all around the neck, besides being circular and complete.
15. In the case in hand, the ligature mark, as per post mortem report, was found 5.5 cm below base of chin and not immediately below the chin. The presence of ligature mark 5.5 cm below chin signifies that death was caused not by hanging but by strangulation because had it been a case of hanging, the ligature mark would have been just beneath the chin and not at a distance of 5.5 cm from it as SC No. 03/10 13 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
the ligature material would have been pulled back with the weight of the deceased when he hanged himself from the ceiling. The presence of ligature mark encircling neck in a straight fashion again reflects that it is a case of strangulation and not hanging because in case of hanging from ceiling the ligature mark would neither have been continuous nor it would have appeared in a straight fashion as is the case here. Ld. Defence Counsel has though disputed the finding of Autopsy Surgeon as to death having been caused by strangulation but in crossexamination of said expert, his observation about nature of ligature mark was not disputed at all. Ld. Counsel has harped much about the hyoid bone of the deceased having been found intact to contend that it is a case of hanging as in strangulation the hyoid bone can never be intact. In my considered view the argument of Ld. Counsel is fallacious because the fracture of hyoid bone depends upon the age of deceased. In case of young victims the bones are not sufficiently calcified so as to harden them. Generally the fracture of hyoid bone occurs when the victim is around or above the age of 40 years whereas as the deceased in the SC No. 03/10 14 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
instant case was just 22 years old.
16. It is further argued by Ld. Defence Counsel that in case of strangulation the tongue should be protruding which is not so here. This is again not universally true for all strangulation cases. In Taylor's Principles & Practices of Medical Jurisprudence as relied upon by Ld. Defence Counsel, it has been categorically observed that the tongue may (and not shall) protrude in strangulation cases. Hence this argument is also devoid of any merit. Here it may be observed that the protruding of tongue, bulging of eyes, fracture of hyoid bone etc. depend upon the age of the victim and the extent and duration of force applied during strangulation whereas the appearance of ligature mark on the neck is always totally distinct in case of hanging and strangulation. In case of hanging from ceiling where the constricting force is the body weight of the victim, the ligature mark would be essentially obliquely placed and would not be straight whereas in case of strangulation by ligature material the mark would be placed horizontally in straight fashion as is there in case in hand. This sufficiently demolishes the defence of the SC No. 03/10 15 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
accused persons that Dinesh had committed suicide inside the shop of accused Ashok.
17. It is also relevant to bear in mind here that some nail marks were found on the neck of the deceased as is noted in PM report. The said marks appear to have been caused at the time when Dinesh tried to remove ligature material from around his neck to save himself. This again supports the prosecution version that the death was not suicidal but homicidal.
18. Ld. Defence Counsel has next argued that PW11 Dharmender, being relative of the deceased is an interested witness and no reliance on his testimony can be placed. Moreover, as per PW11 after seeing his brother being assaulted by the accused persons, he did not make any attempt to save him though he was accompanied by his friend. Even at hospital, he informed the doctor that his brother had died of hanging as noted in MLC Ex. PW3/A. He himself admitted that he met police officials in the hospital including ASI Purushottam but still, he did not insist for registration of the case and calmly went home which is indeed very strange. Had SC No. 03/10 16 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
he seen the gruesome murder of his brother, he would have gone to the PS to register the case and would not have proceeded home to wait for police to come and record his statement. He could not give the description of the person who opened the shutter nor he could state what was the height or colour of the shutter or how high the roof of the shop was. He did not attribute any motive to the accused persons for the gruesome murder of Dinesh which again creates a doubt as to veracity of his claim.
19. The arguments advanced by Ld. Defence Counsel though appear to be attractive but on careful analysis they are found devoid of any substance. PW11 has specifically affirmed that he had met his friend at the shop of accused Ram Pardarth because it was mid way between his house and house of his friend Manish. It is also stated by him that on seeing his brother being strangulated by the accused persons he immediately went inside the said shop and tried to revive his brother who however fell down and then, he took his brother to hospital for immediate medical aid. In such circumstances it cannot be said that PW11 did not make any attempt SC No. 03/10 17 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
to help his brother. As regards the alleged history of hanging as recorded in Ex. PW 3/A, though it is mentioned in the MLC that the said fact was recorded on the basis of the information given by ''brought by'' but PW11 was never crossexamined in this regard. In fact no question was put to even PW3 in that context. The said statement recorded in the MLC pertaining to the history purportedly given by PW 11 was in the nature of a previous statement of the witness appearing in the court. Before testimony of PW11 can be demolished on basis of said statement, it was necessary for Defence Counsel to have drawn attention of PW11 to the said statement and to have given him opportunity to explain the same. Without confronting PW 11 in that regard the said history recorded in Ex. PW3/A cannot be utilised by defence to discredit the testimony of PW11.
20. PW11 Dharmender has in his crossexamination further replied that he had met police officials in the hospital, narrated the incident to them, and thereafter, he had gone home. In such scenario, it cannot be said that there was any occasion for PW11 to SC No. 03/10 18 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
have insisted for registration of the FIR in the hospital itself. A layman would not know whether an FIR has actually been registered on the basis of information given by him or not. So far as PW11 was concerned, he had informed the police officials about the entire incident including the names of the culprits and it was then the duty of the police to record FIR. If the complainant was asked by the police to go to his home stating that IO would follow him, there was nothing unnatural in his conduct in returning home. So far as failure of PW11 to give description of the person who opened the shutter is concerned, it is totally irrelevant. While PW11 was having juice with his friend, there was no reason for him to have kept an eye on shop of accused Ashok and after the shutter was opened, he was obviously shocked by the scene inside, Dharmender would not have bothered to observe the physical attributes of person who opened the shutter. Likewise, Ld. Counsel has though advanced an argument that failure of PW11 to describe colour of shutter and height of roof of shop reflects that he was not present at the spot but as already noted, presence of Dharmender at the spot is not disputed by the SC No. 03/10 19 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
accused persons. The presence of PW 11 being admitted in the shop of Ashok, the failure on part of Dharmender to give the height of roof of the shop or the colour of the shutter cannot be held fatal for prosecution.
21. It is then urged by Ld. Defence counsel that as per prosecution story there was another eye witness namely Manish who was neither examined by IO during investigation nor was tendered in evidence in the court suggesting that he was not supporting the story of prosecution due to which he was dropped. It is an admitted fact that generally public persons are vary of joining police investigation and to appear as witness in the court. It has been well settled by Hon'ble Apex Court in catena of judgments that it is not the quantity, but the quality of evidence, that matters. Moreover in the chargesheet it is mentioned that the said Manish had shifted his address and his present whereabouts were not known due to which he could not be joined in investigation. None of the IOs were cross examined in this regard nor they were questioned as to where they had made efforts to trace Manish. The IOs were the best person to SC No. 03/10 20 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
have explained in this regard but surprisingly not even a single question was put to them about their failure to cite Manish as prosecution witness. In fact PW 11 Dharmander was also not asked as to whether Manish was residing at the same address after the incident and whether he was traceable or not. It being so, no advantage can be drawn by the accused persons on that count at the final stage.
22. It is further contended by Ld. Defence Counsels that PW13 Dr. Sushil Kumar Chaurasia had made contradictory statements and is not a credible witness. In his report, he has made mention of ''metallic'' wire at two places i.e. first in the brief history and then in the final opinion as to cause of death. On being confronted in this regard, PW13 admitted that the word ''metallic wire'' is not mentioned in any of the inquest papers and was recorded by him on basis of his own observations. But subsequently, he claimed that the said metallic wire was produced before him by the IO at the time of PM and it is on that basis, he had recorded the ligature material being a metallic wire though as per PW13 a wire SC No. 03/10 21 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
covered with plastic sheath cannot be termed as metallic wire. Ld. Counsel pointed out that even in the subsequent opinion given by PW13 after about one month of PM report, he has mentioned that the ligature mark found over the neck of victim was the imprint of the type of wire produced before him when admittedly no photographs of the imprint appearing on the neck of the victim were taken before or during the PM. Obviously PW13 could not have on the basis of his memory opined that the imprint of ligature mark on the neck of victim could have been caused by a mettalic wire i.e. the wire covered with a plastic sheath. Ld. Counsels also sought to highlight that PW13 had, in some other case given two contradictory opinions, one of Road Traffic Accident and other of homicide being the cause of death which was subject matter of an inquiry in Hon'ble high court and therefore no reliance on his statement can be placed particularly when he does not have any specialization in forensic medicine.
23. No doubt PW13 in his crossexamination admitted that he had mentioned word metallic wire in PM report on the basis of the SC No. 03/10 22 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
wire produced before him by the IO at the time of PM, but obviously the fact material in the present case is not as to what was the ligature material used as it is undisputed that Dinesh had died an unnatural death as a result of asphyxia caused by constricting force on his neck. The only point relevant in controversy is whether death was suicidal or homicidal. It has already been observed herein before that the fact that ligature mark found over the neck of the deceased was complete, circular and was horizontally placed in a straight fashion has not been controverted in any manner by defence in cross examination of PW13 In such circumstances, the other detail given in the PM report as to ligature material and cause of death become irrelevant. In case the wire was shown to PW13 by the IO at the time of PM, it is a lapse on part of the Investigating agency for which the prosecution case, which independent of said piece of evidence, is credible, cannot be thrown out. Moreover, PW13 has clarified that the inquiry in respect of the alleged two opinions given by him in a single case was already held and there is nothing brought on record by defence to even suggest that any action against PW13 SC No. 03/10 23 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
was taken in that context. In fact he is still working as forensic expert with the same hospital, hence there cannot be any reason to doubt his veracity.
24. The main thrust of Ld. Defence Counsel is that the FIR in the instant case has been ante dated and ante timed. To press this argument, Ld. Counsel has drawn attention of court to the fact that the FIR subsequent to present FIR in PS Binda Pur was recorded on 16th Oct at 11.45 AM meaning thereby that the police had ample opportunity to manipulate the contents of FIR. The inquest papers and the PM report do not bear FIR number suggesting that by that time no FIR had been registered. Even copy of FIR bearing endorsement of the Illaka MM in token of its receipt at the earliest was not proved on record. The special messenger who purportedly delivered the FIR to MM admitted that there was delay in delivery of the FIR to MM.
25. Undoubtedly, in the inquest papers as well as the PM report, FIR number is not mentioned but it is a matter of record that Dinesh was rushed to hospital by his brother who testified that he SC No. 03/10 24 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
had met police in hospital and informed them about the incident at the earliest. The case being of death due to asphyxia caused by ligature material, it appears that initially, the inquest proceedings were conducted by police just to determine whether the death was homicidal or suicidal due to which the FIR number was not mentioned in inquest papers. In the meantime, the statement of complainant was recorded and the case was registered. Though Ld. Defence Counsel has disputed even time of recording of statement of PW11 in light of his reply in crossexamination that his statement was recorded by IO after PM but as submitted by Ld. Add. PP, PW11 Dharmender has categorically stated in his examination in chief that his statement was recorded by ASI Purushottam at his home and the other reply given by PW11 in his subsequent cross examination that his statement was recorded after postmortem is inconsequential as PW11 was not confronted in this regard nor he was asked to clarify as to which of his two statements was correct. PW11 at that time must have been under severe trauma and the minor discrepancies if any as to date and time of recording his SC No. 03/10 25 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
statement cannot be given undue weightage. Nonetheless, it is an admitted fact that there appears to be some discrepancy in respect to time of registration of the FIR and a doubt is raised in view of non delivery copy of FIR to area MM immediately after it was recorded. However, even if for the sake of arguments it is presumed that the FIR was ante timed still this single fact as such is not sufficient to throw out the complete prosecution case which otherwise inspires confidence. Dinesh was rushed to hospital by PW11 Dharmender whose presence at the spot is not disputed. His presence in hospital is even borne out by MLC Ex. PW3/A. Said PW11 has affirmed on oath in court that he had met ASI Purushottam in the hospital and had narrated all the facts to him and it is his statement that formed basis of FIR. PW11 has successfully passed the test of cross examination without wavering at any point. Ld. Defence Counsel could not extract anything on record to conclude that PW11 was unreliable nor his credit could be impeached. Statement of PW11 Dharmender, the first informant is totally in line with contents of FIR. He thus proved beyond doubt the genuineness of contents of SC No. 03/10 26 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
the FIR by passing the test of crossexamination with flying colours. Moreover the factum of unnatural death of Dinesh inside the shop of accused Ashok being undisputed, no motive can be attributed to the police for manipulating the contents of FIR. The police would not have gained anything by making the death of Dinesh a case of murder, had it been a case of suicide. In fact it would have been easier for the police to have washed its hands off by labelling the death of Dinesh as suicide particularly when according to plea of defence Dinesh was a habitual thief. It seems that delay if any in registration of FIR was because of insensitiveness of the police, tending to avoid registration of FIR. In case of Shyam v. State of M.P., (SC) 2007(2) R.C.R.(Criminal) 61, it was held as under "So far as the delay in lodging the FIR is concerned, the witnesses have clearly stated that after seeing the deceased in an injured condition immediate effort was to get him hospitalized and get him treated. There cannot be any generalization that whenever there is a delay in lodging the FIR, the SC No. 03/10 27 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
prosecution case becomes suspect. Whether delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case, would depend upon the facts of each case. Even a long delay can be condoned if the witnesses have no motive of implicating the accused and have given a plausible reason as to why the report was lodged belatedly. In the instant case, this has been done. It is to be noted that though there was crossexamination at length no infirmity was noticed in their evidence. Therefore, the trial Court and the High Court were right in relying on the evidence PW1."
Similarly in a recent case of State of Punjab v.Avtar Singh,(SC) 2009(1)R.C.R.(Criminal) 247, Hon'ble Apex court held, "It cannot be laid as a rule of universal application that whenever there is delay in lodging the FIR and/or there is delay in dispatching the report to the SC No. 03/10 28 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
Elaka Magistrate and/or the medical evidence is at some variance with the ocular evidence, prosecution has to fail."
26. Ld. Defence Counsels have then sought to highlight certain discrepancies in the statements of police witnesses in respect of apprehension of the accused persons and the recoveries purportedly effected at their instance. It is seen that PW11 Dharmender and PW12 Ct. Ram Dhari have categorically stated that the accused persons were lodged in the PS on 14.10.2009 itself. Hence no reliance on claim of IO or the documents that the accused persons were arrested on 15.10.2009 can obviously be placed. Similarly the fact that wire and chappals were present at the spot even on the night of 13th october, 2009 is reflected both in Crime team report as well as statement of PW11 Dharmender. In fact, PW11 Dharmender has stated that he had shown the slippers of his brother and the wire lying at the spot to police on the same day. It being so, the recovery of the said articles at the instance of accused persons is unbelievable SC No. 03/10 29 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
and is otherwise irrelevant as the articles were well within the knowledge of police before arrest of accused persons and were not a new fact got discovered by accused persons.
27. In the instant case it cannot be denied that the police officials have committed certain irregularities during investigation but it has been held by Hon'ble superior courts that any lacuna on part of the investigating agency cannot automatically lead to a benefit to the accused. If such a weapon is given in hands of police, to defeat a genuine criminal case by conducting faulty or shoddy investigation, some unscrupulous officials may use it as a means to defeat ends of justice, by joining hands with accused. It has been the view of Hon'ble Apex Court that accused must never be allowed the benefit of defective investigation and prosecution lapses cannot be allowed as escape route of criminals and prosecution has to prove its case by broader probabilities. [Refer Visveswaran Vs. State and Rajender Lal 2003, AD 350 (SC)].
28. In the present case, there is an eye witness whose presence at the spot is not disputed. The recovery of the dead body SC No. 03/10 30 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
from the shop of Ashok is not denied. The manner of death being unnatural is also not rebutted. The accused persons themselves provided for motive by averring that Dinesh had stolen their two mobiles and had returned only one. The possibility of the death of Dinesh being caused at the hands of the accused persons during an attempt to make him return the said mobile cannot be ruled out. It is an uncontroverted fact that Dinesh died of Asphyxia on account of constricting force on his neck and it is also unrebutted that the ligature mark over neck of Dinesh was in the form of a complete circle placed horizontally in a straight fashion which can only be there in case of strangulation and not in case of hanging from ceiling. In light of these facts it was for the accused persons to have explained as to how Dinesh died an unnatural death in the shop of accused Ashok. The explanation given by the accused persons that Ashok had gone to house of Dinesh to collect Rs.2000/ in lieu of other mobile phone, locking Dinesh inside his shop appears to be totally unconvincing for obvious reasons. It is stated on behalf of the accused Ashok that said mobile was stolen by Dinesh about 20 SC No. 03/10 31 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
days before incident. Admittedly, no complaint was lodged in that respect against Dinesh. It was suggested to Dharmender that other shopkeepers of the area had also accused Dinesh of committing theft. If these suggestions are taken as correct, obviously, Dinesh would not have cared if the accused persons had told anyone about mobile of accused persons allegedly stolen by him. Moreover, if general public already perceived of Dinesh as a thief there was no reason for him to have committed suicide in the shop of accused Ashok particularly when he had already sent his brother Dharmender with Ashok to pay additional amount of Rs.2,000/ to the accused persons towards the other phone. The most surprising fact is that it is Dinesh and not Dharmender who owed money and therefore it is Dinesh who should have been taken by accused Ashok with him for payment of Rs.2000/ and not Dharmender. Needless to say that in absence of there being any police complaint, the accused Ashok could not have detained Dinesh in his shop and PW11 Dharmender could have easily complained to police against Ashok stating that he was illegally detaining Dinesh. The explanation SC No. 03/10 32 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
offered does not appear probable whereas testimony of PW11 corroborated by medical evidence has a ring of truth in it.
29. It is lastly urged on behalf of Defence that its witnesses should be given equal weightage as prosecution witnesses and the testimony of DW1 that he had seen the deceased hanging from ceiling should be sufficient to discard prosecution version. Undeniably both prosecution as well as defence witnesses stand on equal footing and their evidence has to be scrutinized with same care. DW1 in his crossexamination has admitted that there was another shop between his shop and the shop where incident occurred. At the relevant time DW1 claims to have been preparing chappatis outside his shop for several customers having food in his dhaba at that time. Hence being busy in preparing chappatis he could not have seen inside the shop of Ashok separated by another shop nor could he have seen the deceased hanging from ceiling. Moreover, DW on being cross questioned could not say whether Dinesh was hanging from any fan or ceiling nor could he describe the ligature material. DW 1 was not related to Dinesh in any manner SC No. 03/10 33 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
and unlike PW11 he could not have been in a state of shock on seeing the dead body. Thus he should have atleast remembered some of the details such as whether the deceased was hanging from fan or ceiling and nature of material used for hanging, had he actually seen the dead body in such a state. Moreover DW1 does not say that on seeing the dead body he went towards the shop of Ashok or helped Dharmender in any manner in taking down the dead body which should have been his natural reaction if he was deposing truthfully before court. In one of his replies DW1 actually corroborated prosecution version when he stated that Dinesh was taken to hospital by PW11 with another boy. The case of prosecution has all along been that PW11 Dharmender had removed Dinesh to hospital with his friend Manish where as defence has pleaded that PW11 was not accompanied by any boy at that time.
30. So far as DW 2 is concerned, most of his statement is about his own experience and expertise in conducting Post mortem. Thereafter, he has simply disputed the finding about cause of death as given by PW13. DW2, however, has in his entire testimony SC No. 03/10 34 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
failed to clarify as to how in case of hanging from ceiling there could be a complete horizontal, circular ligature mark appearing 5.5 cm below the chin in a straight fashion. Admittedly DW2 never saw the dead body and therefore, he could not have disputed this observation of PW13 about positioning of the ligature mark. Moreover, DW2 did not clarify that the fracture of hyoid bone occurs only in victims of higher age and not in young persons who are in their early 20s. Hence, no reliance on testimony of DW2 can also be placed.
31. The post incident conduct of accused persons is another incriminating circumstance against them. Had they found Dinesh hanging from the ceiling of their shop, they would have not only informed the police immediately but would also have taken him to hospital with help of Dharmender which they did not do. It does not appeal to reason that even after body was found in their shop, they carried on with their normal day to day activity and remained unaffected, waiting for police to approach them. Even the nature of alleged ligature material with which Dinesh allegedly committed SC No. 03/10 35 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
suicide has not been clarified by defence in crossexamination of any of the prosecution witnesses. It is not suggested to the police witnesses or PW11 that any other ligature material was also present in the shop or that it was not seized by the IO deliberately. It is totally unexplained by the accused persons as to how and with what type of material Dinesh had hanged himself from the ceiling.
32. If an offence takes place inside the privacy of a house/shop and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, 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, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions [1944 AC 315] quoted with approval by Hon'ble Justice Arijit Pasayat, in State of Punjab Vs. Karnail Singh 2004 (1) RCR (Criminal) 156 : 2004 SC No. 03/10 36 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
(2) Apex Criminal 76 : {2003 (11) SCC 271}.
33. The judgments relied upon by Defence are totally distinguishable in view of peculiar facts of this case.
34. In consequence to the foregoing discussion, I am of the view that the prosecution has been able to prove the charges against the accused persons as per law. The accused persons are accordingly hereby convicted U/s 302/342/34 IPC. List the case for arguments on the point of sentence.
Announced in the open
court on 29.09.2011 (MAMTA TAYAL)
ADDL.SESSIONS JUDGE
DWARKA:NEW DELHI
SC No. 03/10 37 of 41 D.O.J. 29.09.2011
SC no. 03/10
FIR no. 312/09
PS Binda Pur
St. Vs. Ram Pardarth and Ors.
IN THE COURT OF MS. MAMTA TAYAL
ADDL. SESSIONS JUDGE : DWARKA COURTS
NEW DELHI
SC No. 03/10
FIR No. 312/09
Police Station Bindapur
U/Section 302/342/34 IPC
Judgment announced on 29.09.2011
Order on sentence pronounced on 12.10.2011
State V/s 1. Ram Pardharth Gami,
S/o Rudhal Gami,
R/o B26, Nand Ram Park,
Uttam Nagar, New Delhi.
2. Ashok Kumar,
S/o Ram Padharth Gami,
R/o B26, Nand Ram Park,
Uttam Nagar, New Delhi.
3. Manoj Kumar,
S/o Ram Padharth Gami,
SC No. 03/10 38 of 41 D.O.J. 29.09.2011
SC no. 03/10
FIR no. 312/09
PS Binda Pur
St. Vs. Ram Pardarth and Ors.
R/o B26, Nand Ram Park,
Uttam Nagar, New Delhi.
ORDER ON THE QUANTUM OF SENTENCE
I have heard all the convicts in person, their counsels as well as Ld. Addl. PP at length as to quantum of sentence to be awarded to the convicts in the present case. It is submitted by Ld. Defence Counsel that the case does not come under the purview of "rarest of rare cases" and a lenient view may be taken as they do not have have any previous criminal antecedents. All of them are married and have families to look after as they are the sole bread earners of their respective families.
Per contra Ld. Addl. PP for the State prayed for awarding capital punishment to the convicts on the plea that by committing murder of a young boy aged about 22 years in a cruel and gruesome manner, convicts have shocked the conscience of Society as a whole.
While awarding sentence, a delicate balance of aggravating and mitigating circumstances has to be struck. A number of factors are to be taken into account namely, the motive of the crime, the manner of the SC No. 03/10 39 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
assault, the personality of the accused, circumstances and facts of the case as to whether the crime has been committed for satisfying any kind of lust, greed or in pursuance to antisocial activity or by way of organized crime, drug trafficking or the like. The principle that in case of murder, life imprisonment is the normal rule and the death sentence should be handed down in rarest of rare cases; should of course be uppermost in the mind of the Judge.
The nature of the crime, the circumstances of the criminal and the impact of the crime on the community are broadly the considerations that ought to be kept in view by a Court called upon to choose between the death sentence and the life imprisonment.
Analysing facts of instant case in this light, I am satisfied that though the case involves murder of a young boy at the hands of convicts but apparently this is not a case where it can be said with certitude that the murder was committed in such a diabolical and cruel fashion that it calls for capital punishment. This case definitely does not fall in the category of rarest of rare cases. Accordingly, I hereby sentence all the convicts, namely, Ram Pardarth, Ashok and Manoj to undergo imprisonment for life SC No. 03/10 40 of 41 D.O.J. 29.09.2011 SC no. 03/10 FIR no. 312/09 PS Binda Pur St. Vs. Ram Pardarth and Ors.
and to pay a fine of Rs.10,000/ each and in default of payment of fine, to further undergo S.I. for six months each for the offence U/s 302/34 IPC. Al the convicts are further sentenced to undergo RI for a period of one year each U/s 342/34 IPC. Both these sentences shall run concurrently. They shall be granted benefit of Section 428 Cr. P. C. as per law. Copy of the judgment and order on sentence is given to the convicts, free of cost. All the convicts are further informed of their right to appeal against the judgment and sentence and also about availability of legal aid for the said purpose. File be consigned to record room.
Announced in the open (MAMTA TAYAL)
court on 12.10.2011 ADDL. SESSIONS JUDGE
DWARKA COURTS: NEW DELHI
SC No. 03/10 41 of 41 D.O.J. 29.09.2011