Delhi District Court
State vs . Damodar And Anr. on 19 September, 2018
1
State Vs. Damodar and anr.
FIR No. 927/17
PS: Aman Vihar
IN THE COURT OF SHRI DEEPAK GARG:ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 821/2017
Unique Case ID: DLNW010121392017
State
Vs
1. Damodar @ Dharamveer
S/o Shobha Ram
R.O Village & PO Lauhgarh
PS Atrauli, Distt. Aligarh
Uttar Pradesh
2. Sanjay
S/o Shishpal Singh
R.O Village Aniwas, PO Malakh Pur,
PS Anoop Shahar, Distt. Buland Shahar,
Uttar Pradesh
FIR No. : 927/17
Police Station : Aman Vihar
Under Section : 302/34 IPC
Date of Institution in Sessions Court : 07.12.2017
Date when judgment reserved : 17.09.2018
Date when judgment pronounced : 19.09.2018
JUDGMENT
1. This is the case under section 302/34 of Indian Penal Code (IPC).
Sessions Case No. 821/2017 Page 1 of 21 2 FIR No. 927/17PS: Aman Vihar
2. The case of the prosecution in brief is that on 17/7/2017 at 4:25 p.m., Ct. Ankur who was present at SGM Hospital informed that Tanisha d/o Dharamveer aged 7 years, who was brought to the said hospital and admitted there by her father, had been declared brought dead. This information was recorded vide DD no. 32PP and the matter was marked to ASI Baljit for necessary action. Pursuant to the said information, ASI Baljit reached SGM Hospital and met family members of the deceased. Rukka was prepared by him and he got the FIR registered. He recorded the statement of Lala Ram, Smt. Rajwati, Sanjay and Damodar and got the post mortem conducted on the dead body of deceased. In the postmortem report, it was opined that the death was due to asphyxia as a result of antemortem manual strangulation. Investigation was marked to Insp. Shri Krishan and on 19.08.2017, accused Damodar and Sanjay were arrested. Site plan was prepared and exhibits were sent to the FSL Rohini for opinion. After completion of investigation charge sheet was filed against both the accused persons.
3. On compliance of Section 207 Cr.P.C, the charge sheet was committed to the Court of Sessions by the Court of Ld. MM on 7/12/2017.
4. Vide order dated 5/1/2018 charge under Section Sessions Case No. 821/2017 Page 2 of 21 3 State Vs. Damodar and anr.
FIR No. 927/17PS: Aman Vihar 302/34 IPC was framed against both the accused persons to which they pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution has examined in total 15 witnesses.
PUBLIC WITNESSES
6. PW11 Sh.Lala Ram, uncle of the deceased PW12 Smt. Rajwati, grandmother of the deceased and PW14 Ms. Swati are the public witnesses. Their testimony shall be discussed in the later part of the judgment.
POLICE WITNESSES
7. PW1 W/Ct. Anita is the DD writer. She has deposed that on 17/7/2017 at about 4:25 p.m. a call was received from SGM Hospital that vide MLC bearing no. 12165/17 that one Taisha aged about 7 years was declared brought dead. She reduced the said DD in writing vide DD no. 32 PP and copy of the same is ExPW1/A.
8. PW2 ASI Jai Kanwar, Incharge Crime Team has deposed that he along with staff reached at the spot and inspected the spot. He proved the report ExPW2/A. Sessions Case No. 821/2017 Page 3 of 21 4 State Vs. Damodar and anr.
FIR No. 927/17PS: Aman Vihar
9. PW3 Ct. Yogesh is the Photographer, Mobile Crime Team who visited the spot and took 8 photographs from digital camera. He relied upon 8 photographs of the spot and proved the same as ExPW3/A Colly. He also proved certificate u/s 65B of Indian Evidence Act as ExPW3/B.
10. PW4 Ct. Ravinder has deposed that on 21/8/2017 he took the exhibits of the case to the FSL and after depositing the same handed over the receipt to MHCM.
11. PW5 Ct. Jitender Singh has deposed that on 11.08.2017, the then duty officer ASI Ravinder handed over to him the copy of the present case FIR alongwith under Section 65 B of Indian Evidence Act to be given to Inspector Shri Krishan who at the time was present at Hind Vihar, Railway Fatak alongwith staff and he took the said FIR and the certificate to him and delivered it to him over there.
12. PW6 Ct. Madan Pal has deposed that on 18.07.2017, he went to the mortuary of SGM Hospital with ASI Baljeet Singh where postmortem on the body of the deceased Tanisha was conducted. After the postmortem, the doctor concerned handed over to him one sealed wooden box and two duly sealed pullindas alongwith sample seal and in turn he handed over the same to ASI Baljit, who seized the same vide seizure memo Ex. PW6/A. Sessions Case No. 821/2017 Page 4 of 21 5 State Vs. Damodar and anr.
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13. PW9 ASI Nem Singh is the MHCM. He has proved the entires made by him in register no. 19 and 21 regarding deposit of three pulandas by ASI Baljit Singh and sending the pullandas along with sample seals to FSL as ExPW9/A to ExPW2/C.
14. PW10 Ct. Dharmender draftsman had prepared the site plan at the instance of ASI Baljit Singh and proved the same as ExPW10/A.
15. PW13 ASI Baljit Singh is the initial IO of the case.
He has deposed that on 17/7/2017 on receipt of DD No. 32 PP he alogwith Ct. Madan went to SGM Hospital and after reaching there he collected the MLC of deceased Tanisha and sent the dead body to mortuary for preservation. He made enquiry from family members of the deceased i.e. his father Dharamvir @ Damodar and his uncle Lala Ram, who told that they had no suspicion on anyone regarding the death of Tanisha. He prepared rukka on the basis of DD NO. 32 PP which is Ex. PW13/F and got the FIR registered. Crime team was called at the spot of the incident at 70 foota road, Prem NagarII, Kirari, Delhi. The crime team inspected the spot of incident and the photographer of the crime team took the photographs. He prepared the inquest papers regarding the postmortem of the deceased which is Ex. PW13/C and got conducted the postmortem. The Sessions Case No. 821/2017 Page 5 of 21 6 State Vs. Damodar and anr.
FIR No. 927/17PS: Aman Vihar doctor handed over him the exhibits in sealed manner and he seized the same vide seizure memo already Ex. PW6/A. Thereafter, the dead body was handed over to the relatives of the deceased after proper identification. On 10.08.2017, he collected the postmortem report and in the postmortem it was disclosed that the deceased was killed and it was not a natural death. Thereafter this witness has deposed in sync with PW15 Insp. Shri Kishan, IO with whom he remained in the investigation.
16. PW15 Insp. Shri Kishan is the IO of the case. He has deposed that on 11.08.2017 Ct. Jitender handed over the tehrir and copy of FIR of the present case to him and on the next day i.e. 12.08.2017, he alongwith ASI Baljit Singh and beat staff reached at the spot i.e. 58 A, I Block, 70 foota road, Prem Nagar, Delhi, where father, uncle and grandmother of deceased were found present. On 16.08.2017, he prepared the site plan at the instance of ASI Baljit Singh which is Ex. PW15/A and made enquiries from Damodar, uncle of deceased Lala Ram and grandmother of deceased Rajwati and he was told that Sanjay had gone to village for Raksha Bandhan and had not returned till date. Damodar further told that cash of Rs. 12000/ was also found missing from the house. On 19.08.2017, on the basis of secret information, he alongwith his entire team reached at the shop of Damodar and both the accused persons were arrested vide arrest memos Ex. PW13/G and Ex.PW13/H Sessions Case No. 821/2017 Page 6 of 21 7 State Vs. Damodar and anr.
FIR No. 927/17PS: Aman Vihar and their personal search was carried out vide personal search memos Ex. PW13/I and Ex. PW13/J respectively. On the next day, i.e. 20.08.2017, he alongwith police team and both the accused persons went to their house where both the accused persons pointed out sofa on which at the time of incident, deceased Tanisha was sitting. He prepared the pointing out memo at the instance of both the accused persons which is Ex. PW13/M The photographs of the sofa are Ex. PW3/A (colly). Thereafter, he sent the exhibits to the FSL Rohini for opinion, got prepared the scaled site plan and collected the crime team report and photographs of the spot and also collected the viscera report.
MEDICAL EVIDENCE
17. PW7 Dr. Vipin Dabas, CMO SGM Hospital has deposed that on 17.07.2017, one Tanisha aged about 7 years brought by her father to the casualty in unconscious state and upon arrival after examination she was declared brought dead. He proved MLC bearing no. 12165 as Ex. PW7/A.
18. PW8 Dr. Munish Wadhawan, Specialist Forensic Medicine, SGM Hospital had conducted post mortem on the dead body of Tanisha 7 years female on 18/7/2017 at 11:30 a.m. He proved the post mortem report ExPW8/A and he opined that cause of death was asphyxia as a result Sessions Case No. 821/2017 Page 7 of 21 8 State Vs. Damodar and anr.
FIR No. 927/17PS: Aman Vihar of antemortem manual strangulation. Time since death was opined to be approximately 24 hours.
DOCUMENTS ADMITTED BY ACCUSED DURING TRIAL
19. It is relevant here to state that on 30.5.2018 accused Damodar and Sanjay admitted certain documents i.e. i. FSL report No. C6157 dated 26.09.2017 given by Dr. Aadesh Kumar, Senior Scientific Officer (chemistry) FSL Delhi.
ii. FSL report no. B6153 dated 06.12.2017 allele data report annexed thereto given by Dr. Ruchi Sharma, Chemical Examiner (Biology) iii. The factum of registration of FIR No. 927/17, PS Aman Vihar.
iv. School record of Sanjay Primary School, Aniwas, Anoop Sahar, Bulandsahar, UP. (this was admitted by accused Sanjay only) v. The report dated 20/3/2018 given by Nodal Officer Bharti Airtel Ltd. in respect of mobile no. 9627512318
20. In view of the same, the abovesaid documents were exhibited as Ex. PX1 to PX5 respectively.
Sessions Case No. 821/2017 Page 8 of 21 9 FIR No. 927/17PS: Aman Vihar STATEMENT OF ACCUSED
21. After completing the prosecution evidence, statement of the accused was recorded under Section 313 Code of Criminal Procedure, in which all the incriminatory facts and circumstances appearing in evidence was put to them, which have been denied by them in toto. It is stated by them they have been falsely implicated in this case. Accused Damodar has taken a plea that he used to treat Swati as her younger sister and he used to lover his daughter Tanisha and he used to keep her photograph in his wallet and he did not know how his name cropped up in this case.
22. Accused Sanjay has also stated that he has been falsely implicated in this case and he has denied that while washing clothes, he was intermittently going down and coming up at the terrace suspiciously and he did not know how Tanisha had expired. Both the accused have not led any defence evidence.
ARGUMENTS OF BOTH THE SIDES
23. I have heard Sh. Rajat Kalra, Ld. Addl. PP for the State and Sh. Deepak Sharma, Ld. Counsel for the accused Damodar and Sh.Santosh Kumar and Sh. Nipendra Singh, Ld. Counsels for accused Sanjay and have perused the Sessions Case No. 821/2017 Page 9 of 21 10 State Vs. Damodar and anr.
FIR No. 927/17PS: Aman Vihar material available on record.
24. It is argued by Ld. Counsels for the defence that the prosecution has miserably failed to prove its case beyond reasonable doubt. It is argued that none of the prosecution witnesses have deposed any incriminatory fact against the accused persons showing their involvement in the commission of the offence in question. It is further stated that there is no circumstantial evidence also on record to connect the accused with the offence. It is further stated that the prosecution has failed to prove any motive of the accused persons to commit the offence in question.
25. Per contra, Ld. Addl. PP for the State has argued that the prosecution has been able to prove its case. He has contended as under:
(i) It is contended that the offence in question took place within the four corners of the house of the accused and although PW11 Lala Ram and PW12 Smt. Rajwati have not supported the case of prosecution qua the presence of accused Damodar at the spot but there are sufficient circumstances against accused Sanjay as prosecution witnesses have categorically deposed that while they were washing clothes on the terrace, Sanjay was coming up and going down intermittently which was suspicious and not normal and on being asked about Tanisha, he replied that she was sleeping downstairs in the room.Sessions Case No. 821/2017 Page 10 of 21 11 FIR No. 927/17
PS: Aman Vihar
(ii) It is further pointed out by Ld.Addl. PP that after washing clothes, when they all came down Sanjay put towel on the sleeping Tanisha and on being asked about it, he replied that he had done so as she was wearing short clothes and these circumstances point finger at his mental state and involvement in the commission of the offence.
(iii) There were injuries on the neck and chin of deceased Tanisha and as per the post mortem report, the cause of death was asphyxia as a result of antemortem manual strangulation and the persons who were present at the house have to answer u/s 106 Indian Evidence Act as to how the said child received injuries and reliance is placed on State of Rajasthan vs. Kashi Ram 2006 IX AD (SC) 561 in this regard.
(iv) It is further argued that it is generally difficult for the prosecution to bring on record as to what was in the mind of the accused and why he chose to act in a particular manner. If motive is proved it would supply the link in the chain of circumstantial evidence but the absence thereof cannot be ground to reject the prosecution's case. Reliance is placed on Paramjeet Singh vs. State of Uttarakhand 2010 X AD (SC) 153
(v) It is further stated that accused Sanjay in his statement u/s 313 CrPC has evaded many material circumstances and he has given false explanation and this should be taken as link in the chain of evidence against the accused. Reliance is placed on Deo Nandan Mishra vs State of Bihar AIR Sessions Case No. 821/2017 Page 11 of 21 12 State Vs. Damodar and anr.
FIR No. 927/17PS: Aman Vihar 1955 SC 801.
(vi) It is further argued that although the burden of proving the case beyond reasonable doubt is on the prosecution but the court should be flexible in accordance with the circumstances and no rigid attitude in this regard is warranted.
FINDINGS OF THE COURT
26. This case is based on the circumstantial evidence. It is important to keep in mind that it is not required that in every case there shall be ocular evidence. A person can be held guilty even on the basis of circumstantial evidence, provided each circumstance is proved and established beyond doubt and the circumstances so proved and established formed a complete chain. In Gamparai Hrudayaraju vs. State of AP 2010 (1) RCR (Criminal) 534 (SC) while dealing with the case of circumstantial evidence Hon'ble Supreme court has held that as under:
"When case rests upon circumstantial evidence such evidence must satisfy the following tests:
(a) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.
(b) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused.Sessions Case No. 821/2017 Page 12 of 21 13 FIR No. 927/17
PS: Aman Vihar
(c) The circumstances, taken cumulatively should from a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(d) 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.
(e) 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.
(f) Onus was on the prosecution to prove hat the chain is complete and the infirmity of lacuna in prosecution can not be cured by false defence or plea."
27. After appreciation of the entire evidence led by the prosecution, the question arises whether the prosecution has been able to prove its case beyond reasonable doubt against accused Damodar and Sanjay? In my view the answer is clear NO.
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28. After the incident in question, Tanisha was immediately brought to the casualty in unconscious state in SGM hospital Delhi where she was examined by PW7 Dr. Vipin Dabas and after examination she was declared brought dead. He prepared her MLC which is ExPW7/A.
29. Thereafter, post mortem on the dead body of Tanisha was conducted by Dr. Munish Wadhawan, Specialist Forensic Medicine, SGM Hospital, Delhi who has been examined as PW8. The said doctor noted abrasion on the front of upper half of left neck and bruises on her chin and the cause of death was opined to be asphyxia as a result of antemortem manual strangulation. Hence it is clear that it is a case of culpable homicide but the question arises who committed this offence?
30. As stated above, as per the case of the prosecution, the wife of accused Damodar @ Dharamveer had died in the month of June, 2017 due to jaundice and after her death, he wanted to marry Swati d/o Shishu Pal residing in the vicinity and she had reservations about marrying him due to his children and hence on the fateful day he killed his daughter Tanisha aged about 7 years by strangulation in his house with the help of his nephew Sanjay so that he could marry the said Swati.
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31. It is relevant here to state that PW11 Lala Ram (brother of the accused Damodar) and PW12 Smt. Rajwati (mother of the accused Damodar) have not supported the case of prosecution regarding the presence of accused Damodar in the house at the relevant time. Both of them have deposed that on 17/7/2017 at about 12:00 - 12:30 p.m. as usual Damodar had brought his daughter Tanisha back from school and he left her on his shop near to their house and thereafter Tanisha came back home alone and when Rajwati asked her to have meals, she replied that she already had chole bhature at the shop and that she wanted to watch TV. They further deposed that since it was Monday which was off day for both Lala Ram and Sanjay they all decided to wash clothes and for that purpose they along with Sanjay went upstairs and got engaged themselves in washing clothes and during that time Sanjay was coming up and going down intermittently and when he was asked about Tanisha, he replied that Tanisha was sleeping downstairs in the room.
32. PW11 Lala Ram further deposed that after washing clothes, when he reached at the hair cutting shop run by Damodar, Sanjay also followed him there and he found that Damodar and his nephew Lalit were busy in saloon work and he continued to sit at the shop and at about 2:45 p.m., his mother came running from the house and told that Tanisha was not getting up and when they all rushed Sessions Case No. 821/2017 Page 15 of 21 16 State Vs. Damodar and anr.
FIR No. 927/17PS: Aman Vihar home, they found Tanisha unconscious and she was shifted to Sanjay Gandhi hospital where she was declared brought dead.
33. Both the said witnesses i.e. PW11 and PW12 were cross examined by Ld. Addl. PP for the State in which they denied that on the fateful day at around 1:00 p.m. Damodar @ Dharamveer had come to the house and Tanisha was in his company. They further denied the suggestion of the State that they were won over by the accused Damodar @ Dharamveer.
34. PW11 Sh. Lala Ram denied the suggestion of the State and PW12 Smt. Rajwati feigned ignorance that Damodar @ Dharamveer wanted to marry a girl namely Swati, daughter of his wife's maternal uncle, whose husband had also died and that Swati was not ready for marriage with Damodar as he had three grown up children. They also denied the suggestion of the State that Damodar joined in Sanjay by luring him to give some monetary benefits in the conspiracy to eliminate Tanisha, the eldest of the three children and in pursuance of the same, she was manually strangulated.
35. In the cross examination by Ld. Defence counsel, both PW11 and PW12 categorically deposed that Damodar never used to come home in the afternoon to take lunch Sessions Case No. 821/2017 Page 16 of 21 17 State Vs. Damodar and anr.
FIR No. 927/17PS: Aman Vihar and they further said that Damodar used to go to his shop in the morning and used to return back in the evening.
36. Hence, there is nothing in the testimony of PW11 and PW12 to prove the presence of accused Damodar @ Dharamveer in the house at the relevant time. There is no other circumstantial evidence on record as well to prove the same. Similarly, the circumstance of Sanjay suspiciously going up and coming down intermittently while they were all washing clothes on the terrace and his act of putting towel on Tanisha, while she was sleeping, in itself are also not sufficient incriminating circumstances to convict him, in the absence of the other evidence, which is wanting in the present case.
37. The prosecution has failed to prove the motive of the accused to commit the offence in question. The said Swati d/o Sh. Shishupal has been examined by prosecution as PW14 and she has clearly deposed that she did not want to marry Damodar and there was no talk at any point of time for their marriage and she did not know whether Damodar wanted to marry her. Even PW11 Lala Ram in his cross examination by the State has denied that after the death of his wife, Damodar wanted to marry Swati and he rather volunteered that there were no talks with them. He further stated that he had once asked Swati after the death of wife of Damodar about the idea of marrying with Damodar but Sessions Case No. 821/2017 Page 17 of 21 18 State Vs. Damodar and anr.
FIR No. 927/17PS: Aman Vihar she had refused. As stated above, Smt. Rajwati did not know about this issue of Swati that Damodar wanted to marry her after the death of his wife. Hence, prosecution has miserably failed to prove that Damodar wanted to marry Swati, after the death of his wife. No evidence has come on record that Swati had any reservations about marrying him as he had children and this was the motive for Damodar to commit the offence in question. Hence prosecution has failed to prove the same.
38. As stated above, there is no eye witness to the incident in question. There is no circumstantial evidence direct or indirect adduced by the prosecution to connect accused Damodar @ Dharamveer and Sanjay with the offence in question.
39. The death of Tanisha had taken place within the house of the accused persons. As stated above, there is nothing on record to prove the presence of the accused Damodar in the house at the relevant time or any other circumstantial evidence to connect him or Sanjay with the offence in question. Although the death of Tanisha is very unfortunate but only because of that, the court is not expected to find an excuse to hold the accused persons guilty for the offence in question.
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40. During investigation the police seized the clothes of the deceased and the gauge cloth piece of the deceased which were sent to FSL for forensic examination. The same were subjected to DNA isolation and report was filed by Dr. Ruchi Sharma, Chemical Examiner, Biology FSL Delhi. This report has been admitted by the accused persons and hence this report was exhibited as ExPX2 on 30/5/2018. AS per the result of the said expert, the DNA profile generated from the gauge cloth piece of the deceased was found matching with the DNA profile generated from the clothes of the deceased. Even this FSL result is of no help to the prosecution in proving its case.
41. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination and fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. It is settled law that the burden of proof in a criminal trial never shifts and it is always on the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. It has been so held in Paramjeet Singh vs. State of Uttrakhand AIR 2011 Supreme Court 200.
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42. In case titled Sohan and Another Vs. State of Haryana and Another (2001) 3 SCC 620 it has been observed by Hon'ble Supreme Court that :
"An accused is presumed to be innocent until he is found guilty. The burden of proof that he is guilty, is on the prosecution and that the prosecution has to establish its case beyond all reasonable doubts. In other words, the innocence of an accused can be dispelled by the prosecution only on establishing his guilt beyond all reasonable doubts on the basis of evidence".
43. In Sharwan Singh Rattan Singh vs. State of Punjab MANU/SC/0038/1957 it has been observed by Hon'ble Supreme Court that :
"In criminal cases mere suspicion however strong cannot take the place of proof. The court must be satisfied that the case of the prosecution is not only substantially proved, but the guilt of the accused has also been established beyond reasonable doubt."
44. In view of the above discussion, in my view, prosecution has miserably failed to prove its case beyond reasonable doubt and hence both the accused persons are acquitted of the charges framed against them. Both of them are in judicial custody and they be released, if not required in any other case. Intimation be sent to Superintendent Jail in this regard.
45. Accused persons are directed to furnish bond u/s 437 Sessions Case No. 821/2017 Page 20 of 21 21 State Vs. Damodar and anr.
FIR No. 927/17PS: Aman Vihar CrPC in the sum of Rs.10,000/ with one surety each of the like amount. Both seek time to furnish the same.
46. Case property if any, is confiscated to the state and the same be destroyed the period of appeal and if appeal is filed, subject to the order of Ld. Appellate Court.
47. Put up on 20/9/2018 for furnishing the bond.
Digitally signedDEEPAK by DEEPAK GARG GARG Announced in the open court Date: 2018.09.19 15:31:53 +0530 on this 19th day of September, 2018 (DEEPAK GARG) ASJII, NORTHWEST ROHINI: DELHI Sessions Case No. 821/2017 Page 21 of 21