Delhi District Court
Page 1/40 Of Judgment State vs . Zarzoliani Dt.10.1.2012 on 10 January, 2012
1
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
ID NO:02401R1337002008
SC NO: 32/2010
FIR NO:174/2008
PS : MUKHERJEE NAGAR
U/S 302 IPC
JUDGMENT
1 Sl. No. of the Case SC NO: 32/2010 2 Date of Committal to Sessions 01/10/08 3 Received by this court on transfer 29.04.2011 4 Name of the complainant State 5 Date of commission of offence 23.05.2008 6 Name and Parentage of accused Miss Zarzoliani D/o Sh.R.Piangliana R/o RSSI, Ramrikawn near Central Jail Road, Aizawi Mozoram. 7 Offence complained of U/s 302 IPC 8 Offence charged U/s 302 IPC 9 Plea of guilt PLEADED NOT GUILTY 10 Final order CONVICTED U/S 304 (I) IPC 11 Date on which order reserved 03/01/12 12 Date on which order announced 10/01/12 BRIEF REASONS FOR DECISION
1. Case of the prosecution as per charge sheet is that on 23.5.2008 DD No.11A EX.PW19/A ( Ex.PW3/B) , was received at PS Mukherjee Nagar from PCR to the nd effect that a quarrel has taken place at 2 Floor on House No. 372 , Parmanand Colony. It was assigned to SI Prem Singh who left for the spot with Ct. Ram Avtar. At the spot SI found that injured Victor had been removed to Trauma Center by the Page 1/40 of Judgment State Vs. Zarzoliani dt.10.1.2012 2 nd girl living with him namely Zarzoliani. He found that the house on the 2 floor had a broken internal door. Toilet and drawing room had blood stains while carpet on the drawing room had large amount of Blood. While leaving the constable at the spot, SI visited Trauma Center where he found that vide MLC Ex.PW2/A Victor was declared 'brought dead' . DD No.18A Ex.PW3/A was made by Duty Constable from Trauma Center qua the death. SI came back to the spot. He was joined by Addl. SHO Inspector Krishan Lal . Vide ruqqa Ex.PW26/A SI got recorded FIR Ex.PW3/C U/s 302 IPC. Investigation was taken over by Inspector Krishan Lal who summoned Crime Team and photographer at the spot vide DD Ex.PW3/D. Intimation was sent to Ilaka Magistrate and Sr. Police Officers vide DD No.21A and 24A Ex.PW3/E and F. Rough site plan at the spot is Ex.PW27/A & scaled site plan is Ex.PW16/A, Crime Team Report is Ex.PW4/A. Chance print lifting report is Ex.PW7/A. PCR call report citing " DOSTO ME JHAGDA" is Ex.PW15/A.
2. IO seized blood stained carpet vide memo Ex.PW9/A, sample of the carpet vide memo Ex.PW9/B, sample of the toilet sheet vide memo Ex.PW9/D, blood stain pant vide Ex.PW9/E, blood stained bed sheet vide memo Ex.PW9/F, two empty bear canes vide memo Ex.PW9/G, Laptop vide Ex.PW9/H, cigarette and cigarette buts vide memo Ex.PW9/I, dried blood from the spot vide memo Ex.PW9/J, sample floor vide memo Ex.PW9/K, documents qua old treatment records, ATM transaction slip and invoice qua purchase of laptop vide memo Ex.PW9/U, gloves vide memo Page 2/40 of Judgment State Vs. Zarzoliani dt.10.1.2012 3 Ex.PW9/L, mobile phone and chip Ex.PW9/M, certain medicines vide memo Ex.PW9/N, Tshirt vide memo Ex.PW9/O, passport of Zarzoliani vide memo Ex.PW9/P, cigarette box vide memo Ex.PW9/Q, body lotion vide memo Ex.PW9/R, blood stained gown worn by accused Zarzoliani was seized vide memo Ex.PW9/S, black purse containing cash Rs.39,755/, metro card and one Primus Card in the name of deceased Victor vide memo Ex.PW27/D, another ATM transaction slip of HDFC bank vide memo Ex.PW9/T. Inquest proceedings were carried out including brief facts Ex.PW27/D1. Photographs of the spot are Ex.P1 to P17 and negatives are Ex.P18 to Ex.P36.
3. During the course of investigation, on 23.5.08 itself, Landlady Smt.Rani Ghosh gave nd statement to the IO to the effect that she had let her 2 floor flat to Victor. Zarzoliani was living with him for last 45 months as his girlfriend. On the date of incident i.e. 23.5.08 Zarzoliani came to her at 6.30 am and wanted to removed her luggage stating that the rented flat is locked. Landlady sent the message to Victor through his friend Grant. Accused conversed with deceased in loud pitch. Accused waited for Victor in the landlady's house till Victor came there at around 8.00am and till then he was hail and hearty. Both the deceased and accused went to the rented house. Just 5 minutes thereafter , landlady heard noise of quarrel between deceased and accused. Landlady went upstairs and calmed them down by warning that she would call the police in case there is trouble again. But while she was strolling in the gali , Page 3/40 of Judgment State Vs. Zarzoliani dt.10.1.2012 4 at around 8.30am she again heard accused and deceased quarreling with each nd other aloud. Upon this she went back to the 2 floor with her grand child Master Vishal. They knocked the door which was bolted from inside. when the door was opened after few minutes, deceased and accused were present alone in the drawing room while deceased was bleeding from his mouth, nose and back. Deceased's pant was down and he was only in his underwear. He soon fell down on the floor and became unconscious . Accused Zarzoliani had blood in her hand and goods in the house were scattered all around. Landlady became perplexed and she called the police by dialing 100. People started gathering there . Accused Zarzoliani brought a rikshaw to take Victor to hospital. Victor was brought down by neighbourers including Harish, Raghvender and others but when Victor could not be made to sit in the rikshaw, a taxi was called which took Victor to hospital. Landlady further gave her statement that on 10.6.08, accused Zarzoliani got recovered a knife from behind the utensils in the kitchen of the tenanted premises. Similar statements were recorded by the IO of Master Vishal. Statement of Miss Sheetal was also recorded to show that deceased and accused had quarrel on that day. Statement of Taxi driver was also recorded apart from other witnesses.
4. On 6.6.08 deceased's friend Orok Hogan produced one Lenovo Laptop and its bill dated 20.5.08 in the name of Victor apart from two mobile phones before the IO while stating that he has been handed over these items by Victor's friend Edu Page 4/40 of Judgment State Vs. Zarzoliani dt.10.1.2012 5 Chinedu. They were seized vide memo Ex.PW24/A.
5. On 9.6.08 body was identified by deceased's brother Grant vide identification statement Ex.PW27/F. Body was got postmortmed on 9.6.08 vide report Ex.PW11/A as per which deceased had one antemortem penetrating incised wound on his back which pierced through his lungs. As per doctor, Victor died of shock and hemorrhage caused by this injury which was sufficient to cause death in ordinary course of nature. Body was handed over to family member of deceased vide memo Ex.PW27/D.
6. On 9.6.08 clothes of deceased and his blood sample were seized vide memo Ex.PW20/A, his viscera was preserved vide memo Ex.PW20/B .
7. On 10.6.08 accused Zarzoliani was arrested vide memo Ex.PW23/A and her personal search was conducted vide memo Ex.PW23/B. In her disclosure statement Ex.PW23/C, she told the police that she was having a "livein"
relationship with deceased but lately they had a tiff as deceased had withdrawn money from her account using her ATM Card without her knowledge. On the date of incident she bolted deceased into the room but he broke it open and came out.
She disclosed that she can get the weapon of offence i.e. kitchen knife recovered.
Thereafter vide memo Ex.PW1/B , she got recovered knife concealed in the kitchen of the house behind the utensils over the slab . Sketch of the knife is Ex.PW1/A. The knife was shown to the Doctor, who conducted the postmortem vide application Page 5/40 of Judgment State Vs. Zarzoliani dt.10.1.2012 6 Ex.PW27/G and as per subsequent opinion Ex.PW11/B, the fatal injury suffered by deceased Victor could be possible with the weapon.
8. Copy of tenant verification form of deceased is Ex.PW27/C, copy of deceased's pass book is Ex.PW27/B. Letter of HDFC bank showing withdrawl of Rs.49,000/ between 1.45 pm on 22.5.08 and 6.30am on 23.5.08 is Ex.PW21/A. Exhibits were sent to FSL vide road certificate Ex.PW25/E to G . Malkhana register entries are Ex.PW25/A to D. FSL Report qua laptop and mobile with printout is Ex.PW27/J. FSL report qua other exhibits is Ex. PW27/I according to which 'O' Group human blood was found on the blood stained carpet, clothes of deceased, gown of accused as well as blood sample seized from the house. Finger Print Report is Ex.PW27/K.
9. After conclusion of investigation , charge sheet U/s 302 IPC was filed on 06.09.2008. After compliance of 207 Cr.P.C, case was committed to Sessions. Ld. Predecessor charged the accused for commission of offence punishable U/s 302 IPC on 3.1.2009 to which she pleaded not guilty and claimed trial.
10.To prove its case prosecution examined 28 witnesses in all. It was followed by recording of Section 313 Cr.P.C. statement of accused wherein accused denied allegations against her & pleaded innocence. She also lead evidence in her defence. In her defence, she examined 8 witnesses in all including examining herself U/s 315 Cr.P.C. as DW6.
11.I have heard arguments of Ld. Addl. PP for State Sh. V.K.Negi and Ld. Counsel Page 6/40 of Judgment State Vs. Zarzoliani dt.10.1.2012 7 Sh. Prem Kumar advocate for accused. I have also carefully perused the entire case file.
12.At the onset it would be appropriate to have a glance at the gist of depositions made by each of the prosecution and defence witness during the course of trial.
13.PW1 Rani Devi Ghosh was landlady of the house where accused and deceased used to live together . She deposed on the lines of her statement given to the police apart. She identified the accused as well as the knife in the Court correctly.
14.PW2 is Doctor Satender Kumar of Trauma Center who examined the deceased initially and declared him 'Brought Dead' .
15.PW3 HC Vinay Tyagi was Duty Officer of PS Mukherjee Nagar on 23.5.2008 and he has proved the relevant DD entries and the FIR.
16.PW4 SI Surajbhan was Incharge of Mobile Crime Team on 23.5.08 and he along with his crime team inspected the spot, got the spot photographed and also got lifted chance finger print from the spot and proved his report.
17.PW5 Master Vishal , grand son of PW1, accompanied her grandmother to the nd house at the 2 floor on 23.5.08 at 8.30am after hearing sound of quarrel between Victor and the lady. He saw Victor falling down on the carpet. However, this 13 year old boy could not identify could not identify accused Zarzoliani as that lady.
18.PW6 HC Mahender Singh , photographer, proved photographs and negatives thereof.
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19.PW7 ASI Narender Singh, member of Crime Team lifted chance prints from the spot and proved his report.
20.PW8 Lalita Mendiratta is resident of the 1 floor of the same house. She st deposed that deceased and accused were quarreling even at 34.00am on the day of the incident i.e. 23.5.08. She again heard noises of quarrel at around 8.00am. She followed landlady and her grand son Vishal when they went upstairs and had witnessed deceased collapsing on the floor on the drawing room while bleeding from nose, mouth and back. She identified the accused correctly.
21.PW9 Ct. Ram Avtar accompanied SI Prem Singh to the spot on receipt of PCR call . He joined investigation with the IO on the date of incident and detailed out entire investigational steps.
22.PW10 Miss Sheetal grand child of PW1 land lady . She deposed on the lines of nd PW1 qua deceased and accused living as tenants in their 2 floor house and accused visiting their house at 6.30am. She identified the accused in the Court.
23.PW11 Dr.K.Goyal proved the detailed PM report of deceased prepared by Dr. Munish Wadhawan.
24.PW12 Ct. Suresh was Spl. Messenger who took copy of FIR to concerned Magistrate and Senior Police Officers.
25. PW13 Vishnu Dev, a public witness, working at tea / pakora shop, narrated on the lines of prosecution case qua accused leaving in a rikshaw early in the morning at Page 8/40 of Judgment State Vs. Zarzoliani dt.10.1.2012 9 around 5.005.30am on 23.5.08 while deceased followed her . On being put leading question by Ld. Addl. PP he admitted that quarrel had taken place between accused and deceased.
26.PW14 Harish, a public witness, is neighbour of PW1. He narrated on the lines of the prosecution case. On the asking of PW1 he visited the tenanted house and found deceased lying on the carpet in underwear while accused was standing there with blood stained gown. He helped in removing deceased to hospital in a taxi.
27.PW15 Lady Constable Suman Rani is of PCR .
28.PW16 SI Manohar Lal, Draftsman proved the scaled site plan.
29.PW17 Ct. Rajeev Tomar deposited exhibits with FSL .
30.PW18 SI Ishwar Singh of PCR visited the spot on receipt of call qua quarrel.
31.PW19 is HC Mukesh , Duty Officer, who recorded DD No.11A qua quarrel and proved the same.
32.PW20 Head Constable Ajit Singh joined investigation with IO Inspector Kishan Lal on 9.6.08 and he narrated the investigational details of 9.6.08 & 20.6.08.
33.PW21 S.Shiva, personnel of HDFC Bank appeared on behalf of Amit Sharma, the then Branch Manager and proved the details regarding transaction from ATM Card No. 6220180153980008665 dated 22.5.2008 & 23.5.2008.
34.PW22 Tirlochan Singh was taxi driver who took deceased and accused initially to Nulife Hospital in Kingsway Camp and thereafter to Trauma Center.
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35. PW23 Ct. Akbar Singh joined investigation apart from witness to arrest of accused and disclosure made by accused. He also witnessed the recovery of knife at the instance of accused on 10.6.08 from kitchen of place of incident, concealed behind the utensils.
36. PW24 is Nitin, a Computer Engineer who opened the laptop and removed the hard disc on the asking of police official.
37.PW25 HC Mukesh Meena is MHCM and he has proved relevant entries of register No.19 vide which case property was deposited and later on sent to FSL.
38.PW26 SI Prem Singh initially investigated the matter and he narrated the investigation steps taken by him during investigation.
39.PW27 Inspector Krishan Lal is IO of this case and he has detailed out the steps taken by him during investigation, as detailed supra.
40.PW28 is Dr. Munish Wadhawan, who conducted the postmortem of deceased nd Victor and also gave 2 opinion qua the weapon of offence. He maintained that a spindle shaped injury with acute angle margins is possible with both, a double edged weapon as well as a single edged weapon but sharp pointed tip.
41.Upon conclusion of prosecution evidence in her statement U/s 313 Cr.P.C. as well as in her deposition U/s 315 Cr.P.C. as DW6, accused Zarzoliani admitted pre dominant part of the prosecution case. She admitted that she was living with nd deceased Victor in the 2 floor accommodation rented by Victor at 372, Bhai Page 10/40 of Judgment State Vs. Zarzoliani dt.10.1.2012 11 Parmanand Colony. On the night of 22.5.08 i.e. before the date of incident, they were together in the house. Victor is reported to have entered into her room and woken her up while disturbing her at 4.30am on 23.5.08. Since Victor was drinking heavily , she told him that in case he would not stop drinking, she would end their relationship and leave. Victor did not listen to her and said that he would continue to drink more. She bolted Victor inside her room and came out . While deviating from her earlier version, she preponed the door breaking incident from 8.008.30am to 4.305.30am on 23.5.08. As per new version Victor broke open the door of her room and came outside. At that juncture she ventured out of the house for buying cigarette while Victor followed her rikshaw.
42.As per her statement, she came back after half an hour and found the door of the house was locked , at that juncture she went to landlady's house and waited there for Victor. She had telephonic conversation with Victor with landlady's help. Victor came in landlady's house after sometime . Landlady discussed about the rent of the house to which Victor asked the landlady to come to him later to collect the rent.
nd Then deceased and accused went upstairs to the 2 floor flat. As per accused she went to her room leaving Victor in the drawing room. After some time she heard the knock at the door. When the door was not opened she came out of her room and found Victor vomiting blood from his mouth and nose while she saw PW1 landlady and her grand son knocking the door from the kitchen window. She took Victor to Page 11/40 of Judgment State Vs. Zarzoliani dt.10.1.2012 12 his room and went to open the main door. However, Victor followed her. On seeing the landlady , Victor asked for calling a taxi while stating "Hospital Hospital." He started loosing consciousness and lied on the floor. Landlady thereafter rang the police . Victor was then removed to hospital. She claimed that Victor might had fallen on the broken door, injuring his back. She claimed false implication by the police apart from planting of weapon of offence.
43.DW1 Dr. C.Lalthanpara is acquaintance of accused who came to see her at PS Mukherjee Nagar on 24.5.08.
44.DW2 Davi Lal Remtluanga is younger brother of accused and stated that accused used to live in family with them and left Delhi in the year 2007 in search of job.
45.DW3 James Lalruatkima Pachauau stated that accused stayed with him from 24.5.2008 till 9.6.08 when she was arrested while she had gone for postmortem of deceased.
46.DW4 Lalthamuana stated that he accompanied accused to PS Mukherjee Nagar on 9.6.08.
47.DW5 Vincent Lalrokima had met accused at PS on 9.6.08 and 10.6.08.
48.DW6 is accused Zarzoliana herself.
49.DW7 is Dr. Sunil, Asst. Professor in Forensic Medicine, Maulana Azad Medical College. He was summoned on the request of defence as an additional Medical Expert .
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50.Before evaluating the evidence, it would be handy to have a glance at the necessary ingredients of the offence charged.
51.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.
52.The three basic ingredients U/s 302 IPC runs as under:
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.
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53.Now I shall evaluate the evidence brought by the prosecution in order to assess and ascertain as to whether the above necessary ingredients have been proved on record beyond any shadow of doubt so as to make out a case of murder. First Ingredient
54. Death of a human being was caused It is case of the prosecution that in the case in hand Victor Okon Effiong aged 29yrs., a Nigerian national suffered unnatural death. In order to substantiate this , prosecution has proved MLC Ex.PW2/A as per which he was declared brought dead by Trauma Center on 23.5.08 . His dead body was identified by his friend Grant vide statement Ex.PW27/F. Inquest proceedings qua his death were also conducted which includes brief facts Ex.PW27/D1 and receipt of handing over body to his brother Orok Edet Hogan vide memo Ex.PW27/E. The body was postmortemed by PW28 Dr.Munish Wadhawan and as per PM Report Ex.PW11/A , Victor died of antemortem single incised penetrating wound on his back which was 9 cm deep and it pierced the lower lobe of his right lung by 3 cm.
55.Even otherwise the fact of Victor's suffering unnatural death on 23.5.08 is also not disputed by the defence. This fact is duly admitted by accused in her 313 Cr.P.C. statement as well as in her deposition as DW6. As such this ingredient stands duly established by the prosecution.
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56. Second ingredient Such death was caused by or in consequence of the act of the accused: nd As far as the 2 & most pivotal ingredient is concerned , at the onset it is observed that this case is entirely based on circumstantial evidence. No eye witness to the incident could be traced or cited in so far as according to the prosecution the nd offence in hand was committed behind the closed doors at the 2 floor flat of Bhai Parmanand Colony where accused and deceased were living together under a live in kind of relationship. At the onset it would be appropriate to enlist material facts relied by the prosecution, which are duly admitted by the accused not only in her 313 Cr.P.C. statement but also in her deposition as DW6 as well as during final argument.
ADMITTED FACTS
(i)That deceased Victor was a Nigerian national while accused is an Indian who hails from The State of Mizoram.
(ii)That accused was neither related nor married with deceased Victor but nd was still living with him alone in his rented flat at 2 Floor, 372, Bhai Parmanand Colony for the last several months before Victor died on 23.5.08.
(iii)That the landlady of the house PW1 Smt. Rani Devi Ghosh , PW5 Master Vishal is her grand son while PW10 Ms.Sheetal is her grand daughter used to reside on the ground floor of the house.
(iv)That PW5 Mrs Lalita Mehandiratta is resident of first floor of the house while PW 14 Harish is resident of 376, Bhai Parmanand Colony.
(v)That deceased Victor and accused used live alone in the above house.
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(vi)That no 3 person entered the above tenanted house between midnight 22/23.5.08 and 8.30am on 23.5.08 while deceased and accused were alone.
(vii)That aloud heated exchange of words happened between accused and deceased before deceased died and things flared to an extent that deceased broke the internal door of accused's room.
(viii)That ATM card of accused Zarzoliani was with deceased Victor and he used to withdraw money using her card quite often. Rs.49,000/ were withdrawn from accused's ATM card between 1.45 pm on 22.5.08 and 6.30am on 23.5.08. ( vice PW21 not denied by defence).
(ix)That at around 4.30am on 23.5.08 Victor entered into the room of accused , disturbed her and woke her up . Verbal duel ensued between them which was over heard by first floor resident PW8 Ms. Lalita Mendiratta as well.
(x)That accused threatened deceased Victor of severing relationship with him while leaving the above flat at around 5.00 - 5.30am on 23.5.08.
(xi)That Victor followed her in the gali till she took a rikshaw ( they were sighted by PW13 Vishnu Dev).
(xii)That accused Zarzoliani came back to the above rented flat at around 6.30am and found the flat locked .
nd
(xiii)That landlady refused to hand over keys of the 2 floor rented flat to the accused .
(xiv)That accused visited PW1 landlady's house where landlady sent message to Victor through Grant and arranged a telephonic talk between deceased and accused during which too they had a hot exchange of words.
(xv)That accused waited for Victor at landlady's ground floor house till Victor arrived at around 8.00am.
(xvi)That when Victor visited landlady's house , he was visibly hail and hearty and had conversation with landlady ( qua unpaid rent as per accused).
Page 16/40 of Judgment State Vs. Zarzoliani dt.10.1.2012 17 (xvii)That Both deceased and accused were last seen by PW1 Landlady at nd that juncture when the two proceeded alone towards the 2 floor rented flat. (xviii)That within few minutes of deceased and accused going upstairs at around 8.00am, PW1 Rani Devi Ghosh, PW5 Master Vishal, PW8 Mrs.Lalita Mehndiratta and PW10 Miss Sheetal heard deceased and accused quarreling with each other.
nd (xix)That PW1 Landlady Rani Devi Ghosh visited the 2 floor flat and found accused and deceased quarreling with each other and warned that she would call the police. (Reply to Question 8 of Sec.313 Cr.P.C. statement) (xx)That again at 8.30am voices of quarrel between accused and deceased were heard by PW1 Landlady Rani Devi Ghosh ( Reply to question no.9 of Sec.313 Cr.P.C. & no negative suggestion given to PW1) (xxi)That PW1 Rani Devi and PW5 Vishal went upstairs and knocked the main door of the rented flat.
(xxii)That inside of the flat was visible from the main entrance door through kitchen window. From there PW5 Vishal saw Victor going to toilet where he vomited blood from mouth and nose.
(xxiii)That the door of the flat was not opened immediately and was subsequently opened by the accused and Victor was standing behind her , with his pant down, he was bleeding from mouth, noe and back. Victor collapsed there in the drawing room in front of PW1 , PW5 & PW8. (xxiv)That at that juncture hands of accused and her gown were stained by blood of deceased.
(xxv)That accused accompanied deceased Victor in a taxi initially to Nulife Hospital and the to Trauma Center where he was declared brought dead.
nd (xxvi)That accused was taken to 2 floor rented flat on 10.6.2008 by the police.
57.In order to bring home the charge U/s 302 IPC ,the circumstances sought to be relied by the prosecution against accused Zarzoliani are: Page 17/40 of Judgment State Vs. Zarzoliani dt.10.1.2012 18 Last seen Quarrel between deceased and accused soon before the death. Motive Recovery of weapon of offence Deceased's blood on accused cloth
58.Now I shall deal with above circumstances individually. LAST SEEN
59. As referred to supra, deceased was lastly seen hail & hearty in the company of accused at around 8.00am by PW1 Landlady Smt. Rani Devi Ghosh when they both went upstairs. She also saw them together alone in the flat when she went upstairs after hearing them fight with each other when she had warned them that in case they will not behave , she would call the police. The next time deceased and accused were sighted together by any one was at 8.30am inside their rented flat when PW1 landlady , her grand son PW5 Vishal & PW8 Ms. Lalita Mehndiratta. At that moment deceased was bleeding profously from mouth , nose and back. He collapsed in the room and became unconscious while accused had blood on her hands as well as gown. He was declared brought dead at hospital.
60.In case titled Pardeep Singh Vs. State of Rajasthan AIR 2004 SC 3781 Hon'ble Supreme Court upheld the conviction in a murder case based on circumstantial evidence. The circumstances relied by Hon'ble Supreme Court are : deceased last seen in the company of accused, extra judicial confession, recovery of pant & shirt stained with the blood of deceased on the pointing of accused.
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61.In case titled K.Saral Kumar Vs. State of AP , AIR 2008 SC 1877 and in case titled Babu Raveeldram Vs. Babu Bahuleyal , 2003 SCC Crl.1569 and in case titled State of AP vs. Sheik Mazhar, AIR 2001 SC 2427 Hon'ble Supreme Court upheld the conviction in a murder case while relying on last seen evidence as one of the incriminatory circumstances against the accused. Quarrel between deceased and accused soon before the death.
62. As referred to supra, it is case of the prosecution and admitted by the accused as well that a tiff was going on between her and deceased right from the night of 22.5.08. It continued up to 8.30am on 23.5.08 when deceased Victor died. The evidence of the quarrel between them is available in the form of deposition of PW1 Rani Devi Ghosh, PW5 Master Vishal , PW8 Ms.Lalita Mehandiratta and PW13 Vishnu Dev . In her Sec. 313 Cr.P.C. statement as well as deposition as DW6, accused too conceded that quarrel was going on and also that at one point of time it flared to an extent that deceased Victor broke open the door of the room. The only difference between the prosecution and defence's version is that according to prosecution the quarrel was on account of unauthorised withdrawl of huge amount of money by deceased from accused's bank account by using her ATM card. But according to the defence the quarrel was about drinking habit of deceased. Be that as it may , I am not at all in conformity with the plea of the defence that cause of prolonged quarrel between the two was the drinking habit. Such was the ferocity of Page 19/40 of Judgment State Vs. Zarzoliani dt.10.1.2012 20 the quarrel that it could be heard by neighbourer residing on the first and ground floor of the house and it even led to ripping of a wooden door. Motive
63. As discussed supra, prosecution has assigned motive to the accused that she was crossed with the deceased because he had been withdrawing huge amount of money from her account in order to pay one of his friends even though accused was not agreeing to the same. As mentioned supra, it is admitted by the accused herself that her ATM card used to remain in possession of deceased Victor who used to use the same frequently. Vide statement of PW21 S.Siva Personal Banker of HDFC Bank , Mukherjee Nagar and document Ex.PW21/A, ATM card of the accused was used for withdrawing Rs.49,000/ rupees on 22.5.08 and 23.5.08 in the break up of Rs.15,000/ + Rs.15,000/ + Rs.10,000/ on 22.5.2008 and Rs.9,000/ at 6.30am on 23.5.08. As per seizure memo Ex.PW27/D Rs.39,755/ was recovered from the purse of deceased Victor. It has been the case of the accused that while deceased used to use her ATM card , he used to share the details of the transactions with her. Withdrawl of Rs.40,000/ on 22.5.08 appears to be the trigger which started quarrel between the accused and the deceased. Things reached their threshold with the withdrawl of another Rs.9000/ on the morning of 23.5.08 at 6.30am. And within couple of hours of the same, deceased suffered death by a stab wound within the closed environs of his rented flat where Page 20/40 of Judgment State Vs. Zarzoliani dt.10.1.2012 21 he was present alone with the accused.
Recovery of weapon of offence i.e. knife
64. As per the postmortem report Ex.PW11/A, deceased Victor had suffered a single antemortem incised penetrating wound which had cut into his right lung up to three cms. This led collection of 1.5 ltr. fluid and blood in his chest cavity. This led to shock and hemorrhage which resulted into his death. After arrest of accused on 10.6.08 , she is shown to have given disclosure statement Ex.PW23/C followed by recovery of weapon of offence i.e. knife Ex.P1 as per memo Ex.PW1/B from behind nd utensils in the kitchen of the 2 floor rented flat.
65. This recovery was witnessed by as many as 5 persons namely PW23 Ct. Akbar Singh , PW1 Rani Devi , PW27 Inspector Kishan Lal apart from ASI Rajwanti and SI Anil Kumar. In their depositions above first three witnesses have categorically nd stated that on 10.6.08 accused led the police team to the kitchen of the 2 floor apartment from where she produced the weapon of offence i.e. knife from amongst the utensils. Ld. Defence Counsel claimed this knife to be planted one simply because in her cross examination PW1 landlady has stated that she had not gone upstairs when the police came with the accused. In the same paragraph of her cross examination, she has maintained that the police took out the knife only on the instance of the accused after she led the police to the kitchen. Be that as it may the above aberration in the cross examination of PW1 who is more than 60 yrs old can Page 21/40 of Judgment State Vs. Zarzoliani dt.10.1.2012 22 not dislodge the depositions of other two recovery witnesses . I find absolutely no strength in the plea of the defence that the deposition of police officials in this regard shall not be relied.
66.In another case titled, " Kalpnath Rai Vs. State" 1998 AIR (SC) 201Hon'ble Supreme Court observe that "There can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance. Nonexamination of independent witness or even presence of such witness during the raid would cast an added duty on the court to adopt greater care while scrutinising the evidence of the police officers. If the evidence of the police officer is found acceptable it would be an erroneous proposition that court must reject the prosecution version solely or the ground that no independent witness was examined.
67.Even otherwise weapon Ex. P1 is a kitchen knife and it can not be said that accused was running the kitchen of the flat without any knife. Moreover, this knife was shown to the police to PW28 Dr. Munish who vide his subsequent opinion Ex.PW11/B specifically opined that the single fatal injury suffered by deceased Victor could be possible by the seized knife. I also find no strength in the plea of the defence that had the seized knife being the weapon of offence, it would have contain blood stains over it. In her disclosure statement Ex. PW23/C, she is herself shown to have disclosed that the knife was washed and wiped by her before it was concealed in the kitchen.
Deceased's blood on accused's clothes
68. Page 22/40 of Judgment State Vs. Zarzoliani dt.10.1.2012 23 Existence of deceased's blood on the gown of the accused Ex. P39 seized vide memo Ex.PW9/S has been duly proved by the prosecution. While FSL report Ex.PW27/I according to which gown was stained with "O" Group Human Blood which matched with the blood sample of deceased Victor. In their depositions PW1, PW5 and PW8 have also categorically deposed that they saw that hands and gown of the accused were blood stained. It has been specifically admitted by the accused in her Section 313 Cr.P.C. and Section 315 Cr.P.C. statement that her hands and clothes were stained with the blood of the deceased.
69.Having discussing the circumstances relied by prosecution, it would be appropriate to have a glance at the landmark cases of Hon'ble Supreme Court which guides Trial Courts , as Light Houses, in deciding cases based solely on circumstantial evidence.
70.In case titled Gamparai Hrudayaraju vs. State of AP 2010 (1) RCR (Criminal) 534 (SC) while dealing with the murder case based on circumstantial evidence, it was observed by Hon'ble Supreme Court that :
"When case rests upon circumstantial evidence, such evidence must satisfy the following tests :
1. The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.
2. those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused.
3. the circumstances, taken cumulatively should from a chain so Page 23/40 of Judgment State Vs. Zarzoliani dt.10.1.2012 24 complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
4. the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
5. the circumstances relied upon must be found to have been fully established and the cumulative effect must be consistent only with the hypothesis of guilt.
6. onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution can not be cured by false defence or plea."
71.In case titled Gambhir Vs. State AIR 1982 SC 1157 it has been observed by Hon'ble Supreme Court that :
"The law regarding circumstantial evidence is well settled. When a case rests on circumstantial evidence it must satisfy three tests Viz. (1) circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established, (2) those circumstances should be of definite nature and tendency unerringly pointing towards guilt of the accused and (3) the circumstances taken cumulatively should form a chain so complete in itself that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else."
72.In his detailed submissions, Ld. defence counsel has primarily stressed on following points:
i. Non examination of two knife recovery witnesses Page 24/40 of Judgment State Vs. Zarzoliani dt.10.1.2012 25 ii. Spindle shaped acute angle injury not possible with single edged knife.
iii. Conduct of the accused iv. Delay in postmortem v. Delay in arrest
vi. Publication of facts of the case by IO in a crime magazine vii. Possibility of deceased suffering stab injury between 5.30am & 8.30am viii. No definite opinion qua corresponding cut on the shirt
73.(i) Non examination of two knife recovery witnesses As referred to supra, prosecution had 5 witnesses of recovery of knife out of which three were examined as PW 1, PW23 and PW27. PS SI Anil Kumar and ASI Rajwanti were dropped by the prosecution in so far as per Section 134 of Evidence Act no specific number of witnesses are required to prove a fact.
runs as under:
74.Section 134 of Evidence Act
134.Number of witnesses No particular number of witnesses shall in any case be required for the proof of any fact.
75.In another case titled as "Chacko Vs. State of Kerala", AIR 2004 SC 2688 Hon'ble Supreme Court held that:
" Section 134 of the Indian Evidence Act prescribes that no particular number of witnesses shall in any case be required for the proof of any fact and this section recognises the golden rule that what is required is only the quality of evidence and not the quantity. Even a solitary testimony of a witness without suffering from any of the infirmities, as indicated above , is enough to prove Page 25/40 of Judgment State Vs. Zarzoliani dt.10.1.2012 26 the case of the prosecution for the purpose of mulcting or fastening criminal liability upon a person accused of an offence. Conviction can be based on testimony of single witness if he is wholly reliable. Provision of Section 134 clearly states that no particular number of witnesses is required to establish the case. If the evidence is unblemished and beyond all possible criticism, then an evidence of single witness conviction can be maintained. However, corroboration may be necessary when he is only partially reliable."
76.Hence having examined 3 of the 5 witnesses , I see no reason as to non examination of remaining two witnesses is of any adverse consequence to the defence.
77. (ii.) Spindle shaped acute angle injury not possible with single edged knife. A lot of stress has been placed by Ld.defence counsel on a plea that as per postmortem report, deceased has suffered incised spindle shape wound with clean cut acute margins . It is argued that according to leading Forensic Publications, such an injury is possible only with a double edged weapon unlike the seized knife Ex.P1 which is single edged. Attention of the Court was drawn to P.C.Dixit's Text Book of Forensic Medicine and Toxicology where it is written that "double edged weapon can cause elliptical, slit like wounds in which both angles are acute". Ld. defence counsel missed reading few lines about in the same book where while discussing the shape of the stab wound where both angles are acute it has also been written " however, when the weapon enters parallel to the cleavage lines, even though single edged, it can produce wound with two acute angles. Because of initial penetration by the knife point, it first produces a dermal Page 26/40 of Judgment State Vs. Zarzoliani dt.10.1.2012 27 defect with sharp angles at each end."
78.Similarly, the general opinion putforth by DW8 Dr. S.Sunil that spindle shape acute angle clean cut injury can be caused by double edged weapon does not necessarily rule out usage of single edged weapon in so far as he has not used the word "only" while describing the possible weapon used. Moreover, he did not have any occasion to personally examine the wound suffered by deceased Victor or even the recovered knife. Similar suggestion was given by defence to PW28 Dr. Munish Wadhawan who had himself conducted postmortem of the deceased. The Doctor flatly denied the suggestion while maintaining that a spindle shape injury with both angle acute can be caused by both a double edged sharp weapon as well as a single edged sharp weapon with a pointed tip.
79.In case titled Anant Chintaman Lagu Vs. State of Bombay, AIR 1960 SC 500 while dealing with a murder case based on circumstantial evidence and discussing the weightage to be attached to medical opinion, it was ruled that:
"Circumstantial evidence in this context means a combination of facts creating a network through which there is no escape for the accused, because the facts taken as a whole do not admit of any inference but of his guilt. To rely upon the findings of the medical man who conducted the postmortem and of the chemical analyser taken by themselves may be most misleading. No doubt, due weight must be given to the negative findings at such examinations. But, bearing in mind the difficult task which the man of medicine performs and the limitations under which he works, his failure should not be taken as the end of the case, for on good and probative circumstances, an irresistible inference of guilt can be drawn."
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80.As such I find no strength in the above plea of defence.
81.(iii.) Conduct of the accused A lot of stress was placed by defence on the plea that the conduct of the accused post incident does not show that she had in any manner assaulted the deceased. It is argued that according to PW1, PW5 and PW8 that accused was herself perplexed and was crying for help. The details of the evidence as discussed supra, reveals that accused was seen by above witnesses behind closed door with the deceased with blood stains on her hand and gown while deceased was vomiting blood from mouth and nose apart form bleeding from his back with his pant down. In these circumstances simply because accused called for taxi or help does not ipso facto indicate that she is innocent. The circumstances clearly shows that she had no chance of escape or running away from there as three of her neighbourers were already present on the door and other neighbourers also poured in no time. Similarly, the act of accompanying the deceased to the hospital is also of no avail to defence in so far as the fact of her living - in relationship with the deceased is clearly admitted and by merely accompanying the deceased to the hospital does not wash out inevitable conclusions, pointed out by circumstances proved on record.
82.In case titled Gurbachan Singh Vs. State of Delhi (2008) 9, AD Delhi 727, Division Bench of Hon'ble High Court observed:
" The human conduct is unpredictable. The Supreme Court in case titled Padala Veera Reddy Vs. State of AP , AIR 1990 SC 79, Page 28/40 of Judgment State Vs. Zarzoliani dt.10.1.2012 29 has observed that in a given facts situation particular accused person may act in a manner in which a normal person would not act ......... "
83.(iv.) Delay in postmortem Record reveals that Victor died on 23.5.08 while his postmortem was conducted on 9.6.08. As per PW28 Dr. Munish Wadhawan, necessary document for postmortem was received by Babu Jagjeewan Ram Memorial Hospital on 9.6.08 itself, the day the postmortem was conducted. He denied the specific suggestion of the defence that documents were received on 4.6.08 . It has been explained by the IO in his deposition as PW27 that High Commission of Nigeria was informed about the death on 24.5.08 and he made efforts to locate friends of deceased Victor. He had to send written information to Nigerian Embassy again. It was only on 6.6.08 that brother of deceased Orok Hogan joined investigation and he requested the IO for delaying the postmortem for some time since he had handed over one raxine bag belonging to deceased which contained deceased's laptop. In view of the above circumstances , I see no strength in the plea that delay in postmortem remains unexplained or it has caused any prejudice to accused. (v.) Delay in arrest
84. As per record after the postmortem was conducted on 9.6.08 and it was concluded that deceased died of stab wound on his back caused by sharp weapon ,accused was arrested on 10.6.08. It is strange that defence has raised the issue of delay in Page 29/40 of Judgment State Vs. Zarzoliani dt.10.1.2012 30 arrest in so far as the above delay rather shows that police did not act in any kind of haste and rather waited for the evidence to be collected before arriving at the conclusion qua involvement of the accused in the crime. As such I see no strength in this plea as well.
85. (vi.) Publication of facts of the case by IO in a crime magazine Defence has placed photocopy of the crime magazine Ex.DA on record which is said to be containing facts of the case in the form of a story along with photograph of IO Inspector Kishan Lal. I am in conformity with the concerns expressed by Ld. Defence Counsel that such publications might have the prospects of maligning the accused before the trial and might even prejudice the defence's case. Although no such prejudice appears to be have been caused to accused in the case in hand but such kind of publication by a Police Official aimed at self glorification needs to be contained and curbed. In his cross examination , PW27 IO Inspector Kishan Lal conceded to have got the facts of this case published as news item. As such the IO deserves to be departmental enquired by DCP (Central) on as to how & in what circumstances he shared the intricate facts of this case with the media even though when the trial was under. Moreso, when he himself gave his photograph to be published in the magazine. I am sure that legally a police official of the rank of Inspector is not entitled to give a press briefing as per Punjab Police Rules and Internal Police Orders issued by CP, Delhi and other Sr. Officers Page 30/40 of Judgment State Vs. Zarzoliani dt.10.1.2012 31 from time to time in this regard. It is only the District Incharge i.e. DCP who can release a press briefing in such cases. Action Taken Report be filed or place within 10 days of receipt of the order.
86.(vii.) Possibility of deceased suffering stab injury between 5.30am & 8.00am A defence theory has been putforth by Ld. Counsel for accused during the course of final arguments that it might be a case that accused suffered stab injury between 5.30am and 8.00am on 23.5.08 when he was away from his Parmanand Colony house. This appears to be a mere concoction and fiction in so far as no such suggestion has been given by the defence to either of the witnesses. Rather in her Section 313 Cr.P.C. statement, accused propounded a theory stating that deceased might have received injuries after falling on the broken door inside the flat. This new theory of the defence falls flat as according to PW1 when Victor came to her nd house at 8.00am and went towards the 2 floor rented house with accused, he was hail and hearty. Had he been stabbed with a 9 cm deep injury puncturing his lung, by that time it would have been medically impossible for him to converse with PW1 qua the rent and move around normally. The plea of accused receiving injury from the broken door also falls flat in so far as injury had been opined by the doctors to be caused by a sharp edged weapon and not by any protruding wooden piece. As mentioned supra, the incident of breaking of door was endeavoured to be preponed by the accused from between 8.00am8.30am to between 4.30am5.30am but to no Page 31/40 of Judgment State Vs. Zarzoliani dt.10.1.2012 32 avail to defence.
(viii.) No definite opinion qua corresponding cut on the shirt
87. It was also pointed out that in his subsequent opinion Ex.PW11/B , PW28 Dr. Munish Wadhawan has observed that no opinion qua the corresponding cut on the Tshirt could be given even though Tshirt bears a cut caused by sharp edged weapon. Not much can be read into this argument in so far as this opinion does show that corresponding cut on the Tshirt of the deceased Victor was caused by a sharp edged weapon but it is evident that cut in a fabric can not be assessed on the lines of the cut on skin on human body in so far as fabric can stretch and a bigger weapon of offence can slide through a small cut. As such I find no substance in this plea as well.
88.Evaluating and appreciating the circumstance proved by the prosecution on record in the background of pre dominant admissions made by the accused and in the light of above case laws on circumstantial evidence, it is clear that prosecution has been successful in establishing on record that deceased Victor was hail and hearty at 8.00 am on 23.5.08 when he and accused were visited by PW1 landlady who nd asked them to calm down. When PW1 landlady again visited the 2 floor flat at 8.30am with PW5 and PW8 flat was bolted from inside, she found deceased bleeding from mouth and nose apart from back and he collapsed right in their presence. Hands and gown of accused were blood stained.
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89.Now having prove this , by virtue of Section 106 of Evidence Act the onus of proving the sequence of events between 8.00am and 8.30am solely rests on accused as she was alone with the deceased through out those vital 30 minutes inside to closed doors of the flat. However, strangely Ld. defence counsel has taken a plea that Section 106 Evidence Act has no applicability on criminal law and it is only a concept of Civil Law. I am not at all in conformity with Ld. Defence Counsel on this score.
runs as under:
90.106 Evidence Act Section 106 Burden of proving fact especially within knowledge When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
91.In case titled Harbans Singh Vs. State NCT of Delhi 2007 (3) JT 490 Hon'ble Supreme Court ruled that :
"Section 106 of Evidence Act is applicable to Criminal Law."
92.In case titled Murlidhar Vs. State of Rajasthan 2005 (2) Apex Criminal 373 , while referring to Section 106 Evidence Act Hon'ble Supreme Court held that :
"although burden of prove in criminal case is on prosecution but prosecution is not supposed to prove those facts which are especially within the knowledge of accused and it would be impossible , or at any rate disproportionately difficult for the prosecution to establish such facts."
93.In another case titled State of Rajasthan Vs. Kashi Ram AIR 2007 144 SC while Page 33/40 of Judgment State Vs. Zarzoliani dt.10.1.2012 34 dealing with a case where a woman and her two children died of strangulation and they were last seen with her husband in the house since there was no eye witness and evidence showed that there was frequent quarrel between husband and wife , Hon'ble Supreme Court ruled:
"Accused has no explanation as to how any when he parted with the company of deceased. Under Section 106 of Evidence Act, if a person last seen with the deceased, he must offer an explanation as to how and when he parted company. In a case resting on circumstantial evidence if an accused fails to offer a reasonable explanation in discharge of the burden place on him with itself provides an additional link in the chain of circumstances proved against him."
With these observations judgment of acquittal of Hon'ble High Court was set aside and accused was convicted.
94.In case titled Shambhu Vs. State, AIR 1956 SC 404, it has been observed by Hon'ble Supreme Court that "Sec. 106 is designated to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused."
95.In case titled Sucha Singh Vs. State , (2001) 4 SCC 375, it has been observed that "The Section would apply to cases where the prosecution has succeeded in proving facts for which reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer an explanation which might drive the court to draw a different inference."
96.In case titled Paramjeet Singh Vs. State of Punjab, 2005 (2) RCR Criminal 200 Hon'ble High Court held the husband guilt of offence punishable U/s 304 Part 1 Page 34/40 of Judgment State Vs. Zarzoliani dt.10.1.2012 35 IPC when wife suffered unnatural death at husband's house. There were no eye witness of the offence and husband has failed to explain the circumstances under which the deceased died. It was ruled that :
"presumption U/s 106 of Evidence Act becomes available which lays down that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
97.In case titled Narender Vs. State of Karnal AIR 2009 SC 1881 Hon'ble Supreme Court upheld the conviction under murder while referring to 106 of Evidence Act while observing :
" if an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit their 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 is insisted by the Court. A Judge does not preside over the 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 duties ......... here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person , the burden of proving that fact is upon him."
98.It is also important to observe here that prosecution has brought evidence on record to show that deceased and accused were quarreling between 8.00am and 8.30am as well. Even though specific questions were put to the accused in her 313 Cr.P.C. she has given evasive replies. Law on this score is also well settled.
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99.In case titled Sapna Talwar & Anr. Vs. State, 2011 IX AD (Delhi) 165 it has been observed that :
"It is a well established legal principle that in a case based on circumstantial evidence where an accused offers a false explanation in his statement under Section 313 Cr.P.C. in respect of an established fact, the said false denial could supply a missing link in the chain of circumstance appearing against him."
100.As such in view of the above discussion I have no hesitation in concluding that deceased Victor died of stab injury caused by accused by knife Ex.P1 on 23.5.08 nd between 8.008.30am at 2 floor 372, Bhai Parmanand Colony, Delhi. rd 101.3 ingredient, 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.
102.As far as intention of causing death or knowledge that the injury caused is sufficient to cause death is concerned, record reveals that it is a case of single assault / blow that too without any premeditation . The weapon used is a common kitchen knife and the seat of assault is back of the deceased. Had the intention of accused Zarzoliani been to cause death of Victor , she could have waited for the opportune time and could have very easily slit the throat of Victor in sleep. Single assault in the case in hand signifies that there was no clear jacket intending to cause death. Had the intention been to cause death , accused would not have stopped after the single assault and would have continued to assault him once she Page 36/40 of Judgment State Vs. Zarzoliani dt.10.1.2012 37 had successfully injured him with stab in the back.
103.However, postmortem report Ex. PW11/A and deposition of PW28 Dr. Munish Wadhawan makes it amply clear that the knife Ex.P1 having 12 cm long blade was almost thrusted fully into the back of the deceased Victor. The chest cavity of Victor was puncture as deep as 9 cm and as a result of it 3 cm of the right lobe of Victor's lung, too was punctured. This makes it clear that the angle at which the assault was made by the accused with the knife , was only aimed at causing such bodily injury as is likely to cause death and not a superficial injury. The blade of the knife is 1.5cm wide as per sketch and the dermal size of the injury too is 1.5cm. This shows that the knife was thrusted into the chest cavity from theback of the deceased and almost at 90 degree angle. As opined by PW28 a knife thrusted 9 cm deep into the chest cavity is sufficient to cause death in normal course of nature in so far as chest contains all the vital organs like heart, lungs, wind pipe etc. Once breached or cut, these vital organ would lead to severe internal bleeding, as suffered by Victor and as such would be sufficient in ordinary course of nature to cause death. Such injury when superficially seen might appear only be a small cut on the skin. In such like injuries the devil lies in the depth of the injury caused and not the superficial dermal deformity.
104.Further more , as discussed and concluded supra, an overnight tiff was going between deceased and accused over withdrawl of Rs.40,000/ by deceased from Page 37/40 of Judgment State Vs. Zarzoliani dt.10.1.2012 38 Bank account of the accused on 22.5.08 using her ATM Card. Things turned ugly after another Rs. 9000/ was withdrawn on the morning of 23.5.08 at 6.30am. The quarrel between the two was so loud and vociferous that it could be heard by the neighbours aloud. When the witnesses and police reached the spot, they found the entire household articles in shattered and scattered condition as visible in photographs Ex.P1 to P17. Laptop was found lying on the floor in broken condition. Clothes were strewn all around . Iron Almirah was open and all clothes were lying piled up over there. So much so that an internal wooden door was found broken and ripped apart from in between. All these indicate that the fatal assault preceded a full blown quarrel between deceased and accused. In this scenario it is evident that accused caught hold of the knife from the kitchen and ended up giving the fatal blow in the heat of passion during quarrel.
105. In case titled Nathu Vs. State 1986 CrLJ 413 Hon'ble High Court ruled :
"When the accused without any premeditation during a quarrel with a victim inflicted knife blows on the victim in a sudden fight in the heat of passion as a result of which the victim ultimately died, the case is completely covered by Exception 4 to Section 300 IPC. So the accused has committed the offence punishable U/s 300 , Part I IPC."
106.In case titled Jagriti Devi Vs. State of HP 2010 (1) RCR (Criminal)102 while distincting between an act amounting to murder U/s 302 IPC and an act not amounting to murder U/s 304 Part I or 304 Part II, it was held that:
"Section 300 IPC deals with murder but there is no clear Page 38/40 of Judgment State Vs. Zarzoliani dt.10.1.2012 39 definition of murder provided in Section 300 - Culpable homicide is the genus and murder is species and that all murders are culpable homicide but not vice versa - Section 300 IPC further provides for the exception which will constitute culpable homicide not amounting to murder and punishable under Section 304 - When and if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II."
107.In case titled Ramesh Kumar @ Toni vs. State of Haryana, 2009 (2) RCR (Criminal) 857 (SC) it has been observed by Hon'ble Supreme Court that " Sudden quarrel between the accused and the deceased - There was no previous enmity between them - Accused gave only one Kasi blow on the head o the deceased - Accused guilty of offence Under Section 304 Part 1."
108.In case titled Bangaru Venkata Rao Vs State of Andhra Pradesh, 2009 (1) RCR (Criminal) 452 it has been held that:
"Murder case - Death caused by single blow - Sudden quarrel between husband and wife Accused (husband) inflicted a single blow on left side of abdomen of wife resulting in her death
- Conviction altered from Section 302 IPC to 304 Part 1 IPC."
109. In case titled Suresh Kumar Vs. State of Himachal Pradesh, 2008 (2) RCR (Criminal) 534 (SC) it has been observed by Hon'ble Supreme Court that "Altercation between accused and deceased on a trivial issue - They exchanged abuses Accused took out knife from his pocket and struck a blow in stomach of deceased which proved fatal - Held offence would file under Section 304 Part I IPC"
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110.In case titled Jarnail Singh Vs. State of Punjab, 2008 (1) RCR (Criminal) (P&H) it has been held that :
"Alteration between accused and deceased - Accused inflicted two knife blow injuries on chest of deceased (vital part) - Offence would fall under Section 304 Part I IPC."
111.As such in view of the above discussion and the case laws , I have no hesitation in concluding that guilt of the accused qua commission of crime punishable U/s 304 PartI IPC , can be inferred unerringly and every hypothesis compatible with innocence of the accused has been successfully repelled by the prosecution. Accused Zarzoliani is accordingly convicted for commission of offence punishable U/s 304 Part I IPC. She shall be heard separately on the point of sentence. Announced and dictated in open Court on 10.1.2012 (SURINDER S. RATHI) Addl. Sessions Judge02 Central : Delhi : 10.1.2012 Page 40/40 of Judgment State Vs. Zarzoliani dt.10.1.2012