Delhi District Court
State vs . : Avdhesh on 2 February, 2017
IN THE COURT OF ASJ/PILOT COURT/NORTH DISTRICT,
ROHINI COURTS: DELHI
Sessions Case No:59346/16
FIR No. : 588/16
U/s : 302 IPC
P.S. : Narela
State Vs. : Avdhesh
S/o Sh. Mangal Sahani
R/o Shiv Mandir Wali Gali,
near Shivam Garden,
Bawana Road, Delhi.
Offence complained of : 302 IPC
Plea of accused : Pleaded not guilty
Final Order : Convicted
Date of committal : 03.11.2016
Date of Judgment : 02.02.2017
JUDGMENT
1. On 09.08.2016 Radha Devi made a complaint to the police alleging that she is residing in a house situated in Shiv Mandir wali Gali. Near Shivam Garden, Vishal Bagh, Narela. She is permanent resident of village Parsara police station Pear, Distt. Mujjafarpur, Bihar. About 17-18 years back she was married with Ram Sewak. Two sons were born out of that wedlock. In State Vs. Avdesh SC No.59346/16 :: 1 ::
the year 2007 her husband died due to illness. Thereafter, she married with Avdesh. Her earlier husband purchased a plot of 40 sq. yards in C-block, Vishal Bagh in her name. For the last many days Avdesh was not working and she was pressurizing her to sell that plot. Mother of Radha, Smt. Batahi Devi was against that and was asking her not to sell. On this Avdesh used to quarrel Smt. Batahi Devi and also used to say that he will kill her as she is not allowing the sale of the plot and after her death he could easily sell that plot. On 08.08.2016 at about 9 pm Avdesh came home and started quarreling with mother of Radha. Radha intervened and made her husband under stand and thereafter they went to sleep. Avdesh and mother of Radha slept outside the house on two separate cots and Radha slept inside the house. In the morning at about 6:00 am on 09.08.2016 due to some sound she got up and came out. She saw that her husband Avdesh was pressing the neck of her mother. She raised alarm on which Avdesh fled away from there. Radha tried to wake up her mother but she did not woke up. Jitender son of Radha made a call to Rekha younger sister of Radha State Vs. Avdesh SC No.59346/16 :: 2 ::
who was residing in Swatantra Nagar. Rekha came there. Mukesh husband of Rekha made a call at 100 number police came there. On this statement of Radha the FIR was got registered. The dead body was removed to the hospital. Post mortem was got conducted wherein the doctor opined the casue of death as Asphyxia secondary to constriction of neck structure (Manual strangulation). Accused was apprehended. After completion of investigation the charge sheet against the accused was filed. Ld. MM after complying with the provisions of section 207 Cr.PC committed the case to the Sessions Court. As offence punishable u/s 302 IPC is exclusively triable by the sessions court.
Accused Avdesh was charged for the offence punishable u/s 302 IPC to which he pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence.
2. Prosecution examined Radha, the complainant /eye witness as PW-1. She deposed that in the year 2011 she re-married with accused Avdesh. Firstly she was married with Ram Sewak. Out of her earlier wedlock two male children were born. Her elder son is State Vs. Avdesh SC No.59346/16 :: 3 ::
Jitender aged about 17 years and younger one is Sumit aged about 12 years. Ram Sewak died due to ailment. Her earlier husband Ram Sewak purchased a plot of 40 sq yards in C-Block Vishal Bagh in her name. For about 1 ½ years after the marriage Avdesh was working at the construction site. Thereafter accused started drinking liquor and also stopped working. Accused used to quarrel with her and insist that she shall transfer the plot of 40 sq yards in his name. Her mother Batahi devi used to intervene and also object that her daughter would not transfer the said plot in his name. Accused used to threatened her mother and used to say "Budiya jab tak nahi maregi yeh plot mere naam nahi hoga.," On 08.08.2016 accused returned home he was heavily drunk and started quarreling with her. Her mother intervened and told the accused, "plot to le kar mat ladh kama ke kha le, plot ka peecha chhod de, mein yeh plot tere naam nahi hone doongi." At about 10 pm after quarrel with the accused she along with her sons went to bed in side the house. Her mother and accused slept outside on the cot. In the morning hours she heard screams from outside. She opened the door and saw State Vs. Avdesh SC No.59346/16 :: 4 ::
that accused was sitting on the chest of her mother and was pressing her neck with his hands. She rushed towards her mother. Accused left her mother and ran away. She tried to woke up her mother by shaking her but her mother did not respond. Jitender came out who called her younger sister Rekha. Rekha reached there along with her husband Mukesh. Mukesh made a call at 100 number. Police reached there and recorded her statement Ex.PW1/A. Five photographs were also shown to the witness who identified that the photographs are of the site and of her mother Batahi Devi. She also deposed that lateron she handed over the photocopies of the documents of the plot measuring 40 sq. yards which is in her name i.e. agreement to sell, affidavit, receipt of Rs.48,000/- to the police which were seized by the police vide memo ExPW1/C. That documents are Ex.PW1/C1, C2, C3 and C4.
3. During cross-examination she stated that Avdesh is resident of District Mujjafarpur and is having some property in Bihar. Accused was doing the work of fixing the shuttering. There was no fix time for going for work. He used to return home in the evening around 8 pm or State Vs. Avdesh SC No.59346/16 :: 5 ::
9 pm. They are four sisters including herself. Her elder sister is residing in the village in district Mujjafarpur and the two are residing in Narela. She does not remember the date and month of her marriage with accused Avdesh and also of her first marriage. Accused asked to transfer the property in Delhi in his name after about 1 ½ years of the marriage. The quarrel on this issue was going on about 1 week prior to the incident. There was no property in Delhi in the name of her mother.
However, there was one property in the name of her mother but that was gifted by her mother to her nephew about 4-5 years prior to this incident. Neither she nor her mother made any complaint in the police station or with any other authority that accused is pressurizing them or fighting with them to transfer the property in his name. There was only one mobile phone in her house at the time of incident which used to remain in her custody. She denied the suggestion that accused was having some psychological problem or that he was mentally ill for which he was getting treatment. Her statement was recorded twice once at the time of incident and second at the time of arrest of accused. She was confronted State Vs. Avdesh SC No.59346/16 :: 6 ::
with her statement where it was not mentioned that accused was insisting for transfer of plot in his name but it was mentioned that he was insisting to sell the plot. She was also confronted with her statement where it was not mentioned that accused used to threaten her mother by saying, "Budiya jab tak nahi maregi plot mere naam nahi hoga". However it is mentioned that, "main tujhe jaan se maar doonga kyonki tu plot ko nahi bechne deti, tere marne ke baad mein aaram se plot ko bech doonga". She was also confronted where it is not mentioned that she saw accused sitting on the chest of her mother. She did not make any complaint to the police regarding the quarrel which took place on 08.08.2016. She stated that there is no residential houses nearby. The nearest house is at a distance of about 50 ft. There is no boundary wall of the plot. There are only two rooms. There were no person in the street when she woke up. The ceiling fan was inside the room.
Outside the room air cooler was on. Cot on which her mother was sleeping was at a distance of 15 ft from the room in which she was sleeping. She alone came out of the room. Avdesh ran, on seeing her, towards Bawana State Vs. Avdesh SC No.59346/16 :: 7 ::
Narela road. She did not try to chase or catch hold of accused. She raised alarm but none from the nearby houses came, only her son came out while she was weeping loudly as her mother did not respond when she tried to woke her up. She denied the suggestion that accused never used to quarrel or insist for transfer of plot. She denied the suggestion that her mother was wearing gold chain at the time of incident or that the same was not found after the incident. She deposed that her mother used to wear a chain made of silver. The same was also found in her neck even after the incident. She denied the suggestion that relations between her, her son and her husband were not cordial or that she falsely implicated the accused.
4. Ms. Rekha was examined as PW-2. She deposed that they are 4 sisters. Her father had already expired. Accused is brother of her husband and husband of her sister Radha. Earlier Radha was married with Ram Sewak who died due to illness. Out of that wedlock 2 sons were born to Radha. Radha re-married with accused Avdesh. Avdesh is habitual drinker. There was a 40 sq. yards house in the name of Radha purchased State Vs. Avdesh SC No.59346/16 :: 8 ::
by her late husband Ram Sewak. Accused used to quarrel with her sister for selling of plot or transfer in his name. Her mother Batahi Devi objected to the transfer of the plot or selling of the same. Accused used to quarrel with her mother and sister. One week prior to the death of her mother, Batahi Devi visited her house for getting stitched her clothes. Her mother told her that accused said to her, "tu beech mein mat bola kar nahin to main tera gala daba doonga", Batahi Devi also told this witness that on this she said, "Ye agar yeh plot beech degi to yeh do bacchon ko kahan rakhegi". Her mother also said to the accused, "kama ke khaa le plot ke picchee kyon pada hai." On this, this witness said to her mother, "Yeh aise hi bolta rehta hai yeh kucch nahi kar sakta hai". On 09.08.2016 at about 6 am Jitender son of Radha made a call on her mobile phone and informed that Avdesh Naani ko maar kar bhag gaya hai. Jitender was weeping at that time. This witness along with her husband reached house of Radha. Outside the house her mother was lying dead on the cot. She saw marks on the neck of her mother. Her husband Mukesh made a call to the police at 100 number. Public State Vs. Avdesh SC No.59346/16 :: 9 ::
persons / neighbours gathered there. Police also reached there. Police took the photographs of place of occurrence and the dead body of her mother was removed to BJRM hospital in a vehicle. She also identified the photographs of place of occurrence in which her mother is visible lying on a cot. The photographs are Ex.PWB1 to B5.
5. During cross-examination she stated that she does not know the date, month and year when Ram Sewak purchased plot in the name of Radha. That plot was purchased through property dealer Rajender Singhal. She admitted that accused is having land in his native village. She denied the suggestion that no quarrel took place between accused and her sister Radha in her presence. She denied the suggestion that no quarrel took place between her mother and accused in her presence. Accused used to do the work of shuttering on the construction site. This witness was married with Mukesh in the year 1999 and Avdesh was married with her sister in the year 2011 but she does not know the date and month. She stated that she cannot tell the date and month when accused quarreled with her mother in State Vs. Avdesh SC No.59346/16 :: 10 ::
her presence. She denied the suggestion that accused was having some psychiatric problem or was under
medication. No complaint was made to the police or any authority with regard to accused quarreling with her sister and mother. When she found injury marks on the face of her sister even then she was not medically examined and no complaint was made to the police. She admitted that her mother was having property in the village but according to her she had given that land to the son of her uncle (Tau). She denied the suggestion that there was quarrel between the mother and sister with regard to giving that land to son of their Tau. She denied the suggestion that accused has been falsely implicated. She also denied the suggestion that her mother used to wear a gold chain or that on the date of incident she was wearing that chain which was found missing. She stated that her mother was not having any gold chain. She also denied the suggestion that accused has been falsely implicated to grab her property in the native village.
6. Jitender was examined as PW-3. He deposed that accused is his step father. Accused used to drink liquor State Vs. Avdesh SC No.59346/16 :: 11 ::
and consume ganja. Accused used to quarrel with his mother and his maternal grand mother saying that plot measuring 40 sq yard be transferred in his name. The plot is in the name of his mother which was purchased by his late father in the name of his mother. His maternal grand mother used to object to the transfer of plot by saying, "ye makan to tum bechh do ge, uss paiso ki daroo waroo pee jaoage aur in baccho ka kya hoga aur yeh kahan raheinge."
7. On 08.08.2016 at about 7 / 8 pm quarrel started between accused and his Nani on the issue of plot. His mother Radha intervened and pacified them. At about 9 pm this witness along with his younger brother and mother went inside the house for sleeping. His Nani and accused slept on the cots lying outside the house. At about 6 am in the morning he heard the screams of his mother Radha saying 'Maa Maa'. He came outside the house and saw his mother weeping, sitting on the ground near the cot of his Nani. He also saw the accused running from the house. He made call to his uncle Mukesh and also elder uncle Panchdev. His uncle Mukesh, Panchdev, aunty Rekha, Pyari Devi and Ram State Vs. Avdesh SC No.59346/16 :: 12 ::
Kali reached there house. His uncle Mukesh made a call at 100 number. Police reached the spot.
8. During cross-examination he stated that he is studying in ITI Electronic Trade from Lala Hans Raj Institute. His father expired in the year 2007. His mother remarried with the accused probably in the year 2012. At that time he was studying in 7th class. He denied the suggestion that accused was suffering from some psychiatric ailment or that accused is under some medication. Accused used do the shuttering work at construction site. Accused used to go for work at about 8 am but there was no fixed time for returning home. There is no house adjacent to their house. The houses are at some distance. Outside their house there is an open area and field. He never heard that theft took place in that locality. No complaint was lodged with police or any authority with regard to accused quarreling with his mother and Nani. There was no property in the name of his Nani in the village. He admitted that there was one mobile phone with them on the day of incident. Neither he nor his mother made any call at 100 number. There is no boundary wall of the plot where the house is State Vs. Avdesh SC No.59346/16 :: 13 ::
situated. Accused started sleeping outside about 4-5 days prior to the death of Nani. He denied the suggestion that Nani used to quarrel with his mother. He did not try to chase the accused who ran towards the main road Bawana. He denied the suggestion that accused remained present at the house or he did not run away. He also denied the suggestion that his Nani used to wear a gold chain or on the date of incident also she was wearing gold chain which was not found. He denied the suggestion that accused has been falsely implicated.
9. Mukesh was examined as PW-4. He deposed that Avdesh is his real brother. Accused Avdesh used to drink liquor and consume ganja. He also used to quarrel with his mother-in-law and wife Radha. It was in his knowledge that his sister in law Radha owned a plot measuring 40 sq yards which was purchased by her late husband Ram Sewak. On 09.08.2016 Jitender son of Radha made call on his mobile phone and informed that Nani had expired and that she has been strangulated by accused Avdesh. Jitender was weeping at that time. This witness along with his wife Rekha reached the State Vs. Avdesh SC No.59346/16 :: 14 ::
house of his mother-in-law where Radha and Jitender were weeping near the dead body of his mother-in-law which was lying on the cot outside house. His brother Avdesh was not present in the house. This witness was informed by Jitender and Radha that accused Avdesh had strangulated and killed his mother-in-law. Ram Kali elder daughter of Batahi Devi along with her husband Kailash also reached there. Ram Pyari along with her husband Panchdev also reached there. This witness made a call to police at 100 number from his phone No.9211343294. Police reached there, inspected the spot and got the scene of crime photographed. The dead body was removed to hospital. This witness along with Panchdev and other relatives identified the dead body at the mortuary of BJRM hospital vide statement Ex.PW4/A. They also received the dead body vide memo Ex.PW4/B. The Ld. APP with the permission of the court put a leading question wherein the witness admitted that Avdesh told him that he would get transferred the plot in his name and for that purpose he would kill his mother-in-law Batahi Devi and that accused used to quarrel with mother-in-law on this issue State Vs. Avdesh SC No.59346/16 :: 15 ::
as she used to object to transferring of plot in his name, as it was a gift to Radha by her late husband.
10. During cross-examination the witness stated that accused is having some psychological problem after the death of father and is under treatment. He stated that in his presence accused never quarreled with deceased Batahi Devi. This witness along with his wife reached the house of Radha at about 7 am. He denied the suggestion that accused was present at the house when they reached there. He also denied the suggestion that Jitender and Radha did not inform him that accused killed his mother-in-law. Police reached after half an hour of his reaching house of his mother-in-law. Radha never told him that accused is pressurizing to sell or transfer the plot in his name. He admitted that there is no boundary wall of the house. There is distance of about 1 km between the place of incident and his house. He denied the suggestion that his mother-in-law used to wear a gold chain or on the day of incident she was also wearing gold chain which was found missing.
11. Ld. APP dropped the witnesses Ram Kali, Kailash, Smt. Pyari and Panchdev as the witnesses State Vs. Avdesh SC No.59346/16 :: 16 ::
were of repetative nature. The statement of Ld. APP in this regard was recorded on 12.01.2017.
12. Rajender Prasad Singh Dhall was examined as PW-5. He deposed that he was owner of Khasra No.1/23, 24, 8/4 situated in the area of village Sannot, Delhi in front of Vishal Bagh Bawana Road Narela. On 23.03.2010 he sold 40 sq yard of this khasra to Smt. Radha Devi wife of late Sh. Ram Sewak for a sum of Rs.48,000/-. He exhibited the documents which are already Ex.PW1/C1 to C4.
13. During cross-examination by the Ld. Defence counsel he stated that two meetings were held regarding purchase of the property to Smt. Radha. He does not remember the date and time when first meeting took place. He denied the suggestion that Avdesh came to his house along with Radha or that accused Avdesh made the payment for said plot in the name of Radha.
14. Ct. Vikas was examined as PW-6. On 09.08.2016 he was posted as photographer with crime mobile team outer district. On that day he alongwith Incharge crime team ASI Ram Kumar reached the spot i.e. Shiv Mandir State Vs. Avdesh SC No.59346/16 :: 17 ::
wali gali, Shivam Garden, Vishal Bagh. On the spot SHO Narela and SI Parveen met them. He took the photographs of scene of crime at the instance of IO and Incharge crime team. The photographs are already Ex.PW1/B1 to B5 and the negatives are Ex.PW6/A1 to A5. During cross-examination he denied the suggestion that he did not visit the scene of crime on the date and time as deposed by him.
15. Ct. Naveen was examined as PW-7. On 22.09.2016 he received call from SHO Narela Inspector Jarnail Singh. He went to PS: Narela and from there he reached the spot i.e. agricultural land of Jai Bhagwan Bansal, vishal bagh near Bawana, Narela. He took the measurement and prepared rough notes at the instance of Radha who met them on the spot. Thereafter, they returned to the police station. He prepared the scaled site plan Ex.PW7/A.
16. During cross-examination he stated that the cot has not been pointed out in the scaled plan. He also admitted that it was not pointed out to him by Radha as to in which direction accused ran away.
17. Ct. Hem Chander was examined as PW-8. He State Vs. Avdesh SC No.59346/16 :: 18 ::
deposed that on 09.08.2016 he along with SHO Inspector Jarnail Singh went to the spot i.e. Shiv Mandir wali gali near Shivam Garden, Vishal Bagh Narela. SI Parveen and Ct. Deepak met them there. They saw dead body of lady on the cot outside the house. The name of the deceased was revealed as Batahi Devi. She was having marks of strangulation on her neck. Radha Devi identified the dead body. SI Parveen recorded the statement of Radha and prepared the rukka. The rukka was handed over to this witness for registration of FIR. He went to the police station, got the FIR registered. After registration of the case he returned to the spot with original rukka and copy of FIR and handed over the same to Inspector Jarnail Singh. Inspector Jarnail singh also prepared the site plan of the scene of crime and recorded statement of witnesses.
18. During cross-examination he deposed that there are fields in the vicinity of place of occurrence. There is also gali in front of place of occurrence. He admitted that incidents of theft take place in that area. He denied the suggestion that accused Avdesh was present on the spot when they reached there.
State Vs. Avdesh SC No.59346/16 :: 19 ::
19. Ct. Deepak was examined as PW-9. On
09.08.2016 after receiving DD No.16B which was assigned to SI Parveen at about 7:30 pm this witness along with SI Parveen reached at Shiv Mandir wali gali near Shivam Garden, Vishal Bagh, Narela. There they found the dead body of an old lady. The name was revealed as Batahi Devi. There were strangulation marks on her neck. Inspector Jarnail Singh SHO Narela along with Ct. Hem Chander also reached the spot. SI Parveen recorded the statement of Radha. Crime team was called. Photographs of scene of crime were taken. Incharge crime team Inspected the scene of crime. SI Parveen prepared the rukka and handed over to Ct. Hem Chander. After registration of FIR Ct. Hem Chander came to the spot and handed over original rukka and copy of FIR to Inspector Jarnail Singh. IO prepared site plan at the instance of Radha and also made inquiries from the other family members. This witness took the dead body to the mortuary of BJRM hospital on the direction of IO and got it preserved there. Inspector Jarnail Singh along with SI Parveen and staff reached the mortuary and post mortem was got State Vs. Avdesh SC No.59346/16 :: 20 ::
conducted. After the post mortem dead body was handed over to the relatives.
20. During cross-examination the witness stated that there are fields in the vicinity of place of occurrence. He also admitted that incident of theft take places in that area. Avdesh was not present on the spot. He denied the suggestion that accused was present there.
21. Ct. Vipin was examined as PW-10. On 08.09.2016 on the direction of the SHO IO he took 3 duly sealed exhibits and 2 sample seals from the MHC(M) and deposited the same at FSL Rohini vide RC No.244/21/16. He received the acknowledgment from FSL and on return handed over the same to MHC(M).
Till the exhibits remained in his possession nobody tampered with the same.
22. Ct. Narender was examined as PW-11. He deposed that on 02.09.2016 he on the direction of SHO along with SI Parveen took accused Avdesh to BSA hospital. Accused was medically examined in BSA hospital and his blood sample was taken which was seized vide memo Ex.PW11/A.
23. Ct. Ghanshyam was examined as PW-12. On State Vs. Avdesh SC No.59346/16 :: 21 ::
09.08.2016 he took envelopes containing copies of FIR from duty officer and delivered to the senior police officals and the area MM on motor cycle No. DL 1SZ 5754.
24. Ct. Sumit was examined as PW-13. On 09.08.2016 he was working as DD writer at PS: Narela. On that day at about 7:24 am he received information of killing by strangulation at Vishal Bagh, Shivam Garden, Bawana Road, Bharat Mata School Narela. On this information he recorded DD No.16B and proved the copy of the same as Ex.PW13/A.
25. Dr. N.K. Gunjan was examiend as PW-14. He conducted post mortem on the dead body and proved the report as Ex.PW14/A. He opined the cause of death is asphyxia secondary to constriction of neck structure (manual strangulation) time since death was less than 12 hours from the time of preservation of dead body.
26. During cross-examination he stated that time since death was within the duration of 6 to 12 hours at the time of preservation of body in the mortuary.
27. W/Ct. Renu Yadav was examined as PW-15. On 09.08.2016 she was posted at CPCR police head State Vs. Avdesh SC No.59346/16 :: 22 ::
quarter at extension No.129. On that day an information was received at 7:20:49 from mobile phone No.8860150708 regarding Vishal Enclave, Shivam Garden ke paas, Bawana road near Bharat Mata School gala daba kar maar dala hai, she fed the information in form No.1 and proved the copy of the same as Ex.PW15/A.
28. ASI Ram Kumar was examined as PW-16. He was the incharge crime team and on 09.08.2016 after receiving the information he along with his team i.e. Ct.
Vikas photographer and HC Manoj finger print proficient reached Shiv Mandir wali Gali Vishal Enclave Shivam Garden Narela. IO and other staff met them there. He inspected the scene of crime and submitted his report as Ex.PW16/A. No chance print could be lifted from the scene of crime.
29. ASI Pawan Kumar was examined as PW-17. He was working as duty officer on 09.08.2016 and proved the copy of FIR as Ex.PW17/A. The endorsement on the rukka as Ex.PW17/B. The certificate u/s 65B as Ex.PW17/C. He stated that he also sent the copies of FIR to the area Magistrate and senior police officers State Vs. Avdesh SC No.59346/16 :: 23 ::
through Ct. Ghanshyam.
30. SI Parveen was examined as PW-18. He corroborated the testimony of PW-9. He also stated that he recorded the statement of Radha and made his endorsement Ex.PW18/B. The dead body was removed from the place of occurrence through Ct. Deepak and was sent to BJRM hospital for preserving the body in the mortuary vide application Ex.PW18/A. He sent the rukka through Ct. Hem Chander. IO also collected the copy of report of Incharge of Crime Team ASI Ram Kumar. IO made inquiries from the members of the family. On 10.08.16 this witness along with IO went to the mortuary of BJRM hospital where Inspector Jarnail Singh prepared inquest papers and moved application for conducting post mortem on the dead body. The dead body was identified by Mukesh and Panchdev. Their statements were recorded. After the post mortem the doctor handed over two sealed pullandas duly sealed and sample seal which were seized by the IO vide memo Ex.PW18/C. The dead body after post mortem was handed over to the family members vide memo Ex.PW4/B. Doctor also handed over the post mortem State Vs. Avdesh SC No.59346/16 :: 24 ::
report which is Ex.PW14/A. On 16.08.16 they went in search of accused and reached Shiv Mandir wali gali. One secret informer met them there who informed that accused is sitting near the wall of his house. This witness along with secret informer and IO and other staff reached there and accused was apprehended on the pointing out of secret informer. Radha also came out from the house and joined the investigation. IO interrogated the accused and arrested him vide arrest memo Ex.PW18/D. His personal search was conducted vide memo Ex.PW18/E. Accused made the disclosure statement Ex.PW18/F. Accused pointed out the place of occurrence vide memo Ex.PW18/G. Radha also handed over the documents of property which were seized vide memo Ex.PW1/C. Accused was got medically examined and was sent to the lock up. On 02.09.2016 this witness along with Ct. Narender went to the court where accused was produced on production warrants. An application for his medical examination was moved for taking his blood sample which was allowed by Ld.MM. Accused was taken to the BSA hospital where his blood sample was taken which was duly sealed. Doctor State Vs. Avdesh SC No.59346/16 :: 25 ::
handed over the sealed envelope along with the sample seal which was seized vide memo Ex.PW11/A.
31. During cross-examination he stated that he received DD No.16B at about 7:30 am and reached the spot on motorcycle at about 7:45 am. There were about 8 to 10 public persons on the spot including complainant. 6-7 relatives of the deceased were there out of those 8 to 10 persons. There was no boundary wall. After about 15 to 20 minutes of his reaching the spot SHO and other staff also reached the spot. He did not record the statement of any person including the complaint before the arrival of SHO. He recorded the statement of Radha at about 8:30 am. Crime team also reached the spot at about 8:30 am. Before the arrival of Crime Team he recorded the statement of Radha. He denied the suggestion that crime team was not called on the spot or that statement of Radha was recorded in the police station. He denied the suggestion that crime team report and the photographs were managed in order to suit the prosecution case. HC Hem Chander left the spot on the motorcycle for registration of FIR. He did not make the departure entry on 16.08.16. They left the State Vs. Avdesh SC No.59346/16 :: 26 ::
police station in govt. gypsy but he does not remember the number of the same. The distance between police station and shiv mandir wali gali is about 2 to 3 kms. And the distance between police station and place of occurrence is also 2 to 3 kms. Outside the police station IO requested 3-4 persons to join the investigation but none agreed. This witness had not seen the secret informer on 16.08.2016. The secret informer met them at about 6 pm. The secret informer gave the information to SHO separately and was not audible to this witness. The house of accused was at a distance of 10 to 15 meters from the place where secret information was received and the house was visible. The secret informer pointed out the accused from a distance of about 20 to 25 feet. No public person was found at that time near Shiv Mandir. Shivam Garden was lying closed at that time, therefore, they were not able to request any person from there. Accused was apprehended at about 6:05 or 6:10 pm. He denied the suggestion that accused was present at his house on 09.08.2016. He denied the suggestion that accused was apprehended on the same day. He denied the suggestion that accused did not State Vs. Avdesh SC No.59346/16 :: 27 ::
make any disclosure statement.
32. Ms. Nisha Upadhaya was examined as PW-19.
She proved the DNA examination report i.e. the DNA profile generated from the source clothes from the nail clippings and the report is proved as Ex.PW19/A. The Allelic data of examination of exhibit is Ex.PW19/B. The detailed report is Ex.PW19/C.
33. Inspector Jarnail Singh was examined as PW-20. He is the IO of the case. He corroborated the testimony of PW-18, proved the site plan prepared by him as Ex.PW-20/A. He also stated that he prepared the inquest papers on 10.08.16 when he along with SI Praveen and other staff went to the mortuary of BJRM hospital where Ct. Deepak met them. He proved form no.25.35 as Ex.PW-20/B. He prepared the brief facts Ex.PW-20/C. He moved application for post mortem which is Ex.PW-20/E. He also deposed that on 08.09.16 on his direction MHC(M) HC Balram Singh handed over exhibits to Ct. Vipin, who deposited the same at FSL and on return handed over the acknowledgment to the MHC(M). After completion of investigation he filed the charge sheet.
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34. During cross examination, he deposed that he received the information in the morning at about 7.30 AM and immediately thereafter he left the police station in official gypsy. 8-10 family members and 2 to 4 neighbors were there. SI Praveen and one costable were also present. SI Praveen recorded the statement of Radha and not of any other witness. Crime team reached the spot at about 8.30 AM. Ct. Hem Chander left the spot with rukka on motorcycle at about 10/10.30 AM and came back at about 12 noon. The area is thinly populated. There is agricultural land in that area. There is distance of about 3 to 4 km.between the place of incident and the police station. Bawana road is about 50 mtrs. from the place of incident. He denied the suggestion that no proceedings were conducted on the spot. He denied the suggestion that theft and robberies regularly take place in that area. On 16.08.16 they left the police station at about 5.30 PM in government gypsy. On the way to Shiv Mandir wali gali he asked public persons to join the raiding party but none agreed. Place of incident was about 25-30 yards from Shiv Mandir wali gali and was visible from the place where State Vs. Avdesh SC No.59346/16 :: 29 ::
secret informer met them. The distance between the main gate of Shivam Garden and Shiv Mandir wali gali is hardly 100 steps. After reaching Shiv Mandir wali gali he did not ask any public person to join. They all were in uniform. The secret informer passed on the information to him while he was standing near the gypsy and pointed out the accused from a distance of 20 to 25 yards. The witness did not ask any public person even after the accused was pointed out by the secret informer. Accused was arrested at about 6.05 PM. Information about his arrest was given to Radha. He denied the suggestion that accused was present at his house on 09.08.16 or that he was apprehended on the same day. It is wrong to suggest that signatures of accused was obtained forcibly in the police station. Thereafter Prosecution evidence was closed.
35. Statement of accused was recorded under Sec.313 Cr.PC wherein he denied the entire evidence and deposed that he has been falsely implicated in this case. He is innocent. The above said property was purchased by him in the name of his wife in the year 2010. The first husband of his wife had already expired State Vs. Avdesh SC No.59346/16 :: 30 ::
in the year 2007. He is also having property in his native village. His wife wanted to grab his property. His wife and mother in law used to quarrel because his mother in law gifted the property in her name to her nephew and due to that reason his wife was very much annoyed with her mother. His wife converted the sheer incidence and implicated him in this false case. He did not wish to lead evidence in defence and the case was fixed for final arguments.
36. I have heard the Ld. Addl. PP for State, Ld. Amicus Sh. Anuj Arya, for the accused and perused the record.
37. Ld. APP submitted that this case is based upon the occular evidence of Radha Ex.PW-1. Ld. APP submitted that Radha was earlier married with Ram Sewak. From that wedlock two children were born Jitender and Sumit. Ram Sewak died and thereafter Radha married with the present accused. Though the date of marriage is not told by PW-1 but PW-2 told that accused married with Radha in the year 2011 but she also does not remember the date. It has also come on record that Ram Sewak has purchased a plot of 40 State Vs. Avdesh SC No.59346/16 :: 31 ::
sq.yards in the name of Radha. The documents in this regard are placed on record which are Ex.PW-1/C1, PW-1/C2, PW-1/C3 and PW-1/C4. These documents were seized by the police vide memo Ex.PW-1/C. Sh. Rajender Prashad Singhal, who executed these documents was examined as PW-5 and he also stated that these documents were executed by him with respect to sale of 40 sq.yards of land to Smt. Radha Devi. Ld. APP submitted that accused tried to make out a case that this land was purchased by him or that payment was made by the accused but the witness denied this suggestion that payment was made by accused Awdesh or that Awdesh came to his house along with Radha. Ld. APP submitted that the bone of contention was this plot. Accused wanted Radha to sell this property or transfer this plot in his name but deceased, the mother of Radha was not allowing that and objected to the sale or transfer of that plot in the name of the accused. Witnesses PW-1, PW-2, PW-3 and PW-4, despoed in this regard that accused was pressurizing Radha to transfer that plot in his name or sale the same. It has also come on record that accused State Vs. Avdesh SC No.59346/16 :: 32 ::
threatened Batahi Devi and also said that "budhia jab tak nahi marengi, yeh plot mere naam nahi hoga". The fact that accused was quarreling with the deceased and PW-1 with regard to transfer of the plot is corroborated by PW-2, PW-3 andPW-4 also. Ld.APP submitted that accused was thinking that it is the deceased, who is an obstacle in transfer of plot in his name and that is why he killed her by pressing her neck. It has come in the testimony of PW-1 as well as PW-3 that on 08.08.16 also when the accused came home, a quarrel took place between the accused and the deceased on the issue of plot. PW-1 intervened and pacified them. They took the dinner and thereafter PW-1 along with PW-3 and the younger son slept inside the house but the accused along with the deceased slept out side the house. Ld. APP submitted that on 09.08.16 in the morning at about 6 AM PW-1 woke up on hearing the screams of the deceased. She came out and saw the accused pressing the neck of the deceased. On seeing PW-1 accused fled away. PW-3 also stated that he woke up on hearing the weeping sound of her mother, who was also saying "ma ma" and when he came out. He saw the State Vs. Avdesh SC No.59346/16 :: 33 ::
accused running away towards Bawana Road.
38. Ld. APP submitted that the statement of PW-1 that accused was pressing the neck of the deceased is also corroborated by the medical evidence i.e. the post mortem report proved on record as Ex.PW-14/A, wherein the doctor opined the cause of death as asphyxia secondary to constriction of neck structure (manual strangulation). Ld. APP submitted that after committing the offence accused absconded as deposed by PW-1, PW-2, PW-3 and PW-4. Even the police offiers, who reached on the spot stated that accused was not present on the spot. Ld. APP submitted that the defence has tried to make out a case that accused was having some psychological problem and was on medication. But accused himself does not allege, when he was examined under Sec.313 Cr.PC that he is having some psychological problem or was on medication. Accused has also alleged that he was sleeping inside the room but surprisingly there is no such cross examination to either PW-1 or PW-3. Ld. APP submitted that defence is also trying to bring the angle of theft of the gold chain which according to the State Vs. Avdesh SC No.59346/16 :: 34 ::
defence deceased used to wear but all the witnesses specifically stated that accused never used to wear any gold chain. She only used to wear silver chain and the same was in her neck even after the death and this fact is also evident from the photographs Ex.PW-1/B4 and B5 wherein the silver chain is clearly visible in the neck of the deceased which rules out any possibility of death for the purposes of snatching her chain. Otherwise this silver chain must have been taken away by that assailant. Ld. APP submitted that keeping in view the eye witness version of PW-1, who is none else but the wife of the accused corroborated by PW-3 son of accused clearly shows that it was accused, who strangulated the deceased and caused her death coupled with the fact that he also absconding from the spot immediately after committing the offence which also points towards his guilty mind. The fact that he was not there is also deposed by his own brother examined as PW-4. Ld. APP submitted that onus which was on the prosecution has fully been discharged. The prosecution has proved and established the guilt of the accused. It is prayed that accused be held guilty and State Vs. Avdesh SC No.59346/16 :: 35 ::
convicted for the offence punishable under Sec.302 IPC.
39. Ld. Defence counsel submitted that accused has been falsely implicated. He is innocent. The story has been concocted by PW-1 Ms. Radha to grab the property of the accused. Ld. Counsel submitted that according to PW-1, She had seen the accused pressing the neck of her mother while sitting on the chest but she was confronted with her statement Ex.PW-1/A where in it was not found mentioned that she saw the accused sitting on the chest of her mother. Ld. Counsel further submitted that according to PW-1 and as also deposed by the other witnesses she saw the accused pressing the neck of her mother at 6 AM. But according to the post mortem report Ex.PW-14/A the time since death at the time of conducting post mortem was less than 12 hours from the time of preservation of dead body in the mortuary i.e. 10.10 AM on 09.08.16. During cross examination he specified that the duration was between 6 to 12 hours. Ld. Counsel submitted that this murder has taken place on 09.08.16 at 6 AM according to the prosecution story. If PW-14 is believed then this murder had already taken place at about 4 AM or before 4 and State Vs. Avdesh SC No.59346/16 :: 36 ::
not at 6 AM, hence this testimony of PW-1 is not reliable. Ld. Counsel further submitted that in this case the nail clipping of the deceased were also taken and were sent to FSL for examination. DNA profiling was also done after taking the blood sample of the deceased. The report is Ex.PW-19/A and PW-19/B. This report clearly shows that DNA of the material which was found in the nail clipping does not matched with the DNA of the accused, hence it can not be said that it was the accused, who committed murder. Ld. Counsel further submitted that according to PW-1, when the accused saw her, the accused ran away. PW-3 the son of accused and PW-1, saw the accused running away towards the Bawana Road. But if PW-1 is to be believed then PW-3 came out after about 5 minutes of her started weeping and if that is true then PW-3 was not in a position to see the accused running, as the distance between the main Bawana Road and place of occurrence is only 50 yards. Ld. Counsel submitted that this itself shows that PW-1 and PW-3 are deposing falsely and also contradicting each other. They also contradicted each other as according to PW-1 the State Vs. Avdesh SC No.59346/16 :: 37 ::
accused took the dinner at 10.30 PM whereas all other person had take dinner earlier. But according to PW-1 accused took dinner at 8.30 PM. Ld. counsel also submitted that the fact that PW-1 is telling lie along with other witnesses is also evident from the fact that according to PW-1 the plot was purchased by her first husband. Her late husband had died in the year 2007 whereas the plot was purchased in the year 2010, hence it is not possible that this plot was purchased in her name by her late husband. Ld. Counsel submitted that in the documents Ex.PW-1/C1,PW-1/C2, PW-1/C3 and PW-1/C4 also the date is mentioned as 23.03.10 and the name of first party is mentioned as Smt.Radha Devi wife of late Sh.Ram Sewak. Ld. Counsel submitted that this itself shows that her first husband Ram Sewak was already dead when this property was purchased by her from PW-5. Ld. Counsel submitted that under the circumstances this possibility can not be ruled out, that in fact accused purchased the plot, which he also alleges, in the name of Radha and that is why she had not specifically mentioned or deposed about the date of marriage. Ld. Counsel further submitted that accused State Vs. Avdesh SC No.59346/16 :: 38 ::
purchased this plot and accused was also having some property in his village which the complainant wanted to grab and that is why she implicated the accused. In fact the deceased, who was the mother of the complainant was having a land in the village but she gifted that land to her nephew due to which complainant was having grudge against her mother and she taking benefit of this situation falsely implicated the accused. There is also contradiction as to where the statement of PW-1 was recorded. Ld. Counsel submitted that according to PW-1, her statement was recorded on the spot, whereas according to PW-2 statement was recorded in the police station. Ld. Counsel submitted that this itself creates doubt about the truthfulness of the story and it also shows as to why neither PW-1 nor PW-3 made a call at 100 number despite the fact they were having the mobile phone and call was only made by PW-4 Mukesh.
Ld.Counsel submitted that in fact they concocted the story to falsely implicated the accused. Accused never absconded and was present all through at that place but the complainant along with his other relatives falsely implicated the accused in this case.Ld. Counsel prayed State Vs. Avdesh SC No.59346/16 :: 39 ::
that keeping in view all these contradictions and the facts of the case, benefit be given to him and accused be acquitted.
40. After hearing the arguments and going through the record, I found that in this case all the public witnesses are relatives of the accused. PW-1 is his legally wedded wife. PW-2 Rekha is sister of his wife and also wife of real brother of the accused. PW-3 is his own son and PW-4 is none else but his real brother.
PW-1 stated that when she heard the cries of her mother, she woke up, came out and saw the accused pressing neck of her mother. This fact is mentioned in the complaint itself. When she appeared in the witness box she stated that accused was sitting on the chest of her mother and was pressing her neck. This fact does not show that she has improved or tried to make out a different case. She had only explained as to where the accused was when he was pressing the neck of her mother. Hence, this can not be taken as a contradiction. The fact stated by PW-1 is also corroborated by the post mortem State Vs. Avdesh SC No.59346/16 :: 40 ::
report Ex.PW-14/A wherein the doctor opined the cause of death as asphyxia secondary constriction of neck structure (manual strangulation). From this it is clear that the deceased died due to manual strangulation. Therefore, this scientific evidence supports the ocular evidence of PW-1. PW-1 said that when her mother did not respond, she started crying and her son came out. PW-3 said that on hearing the cries of her mother, he came out and saw the accused running. PW-1 said that he saw that her son came out after 5 minutes of hearing her cries. But not much importance can be attached to that as firstly she was not having any watch with her at the time and secondly she was under tremendous shock as she had seen her husband killing her mother. So far as contention that death has occurred much before the alleged time, I find that the doctor has not given any specific time, hence merely saying that the time may be between 6 to 12 hours may also vary and may be less than 6 hours State Vs. Avdesh SC No.59346/16 :: 41 ::
and then it again depends upon the preserving condition. Particularly when there is an eye witness to the factum of strangulation which is corroborated by the scientific evidence in my opinion it does not discredit PW-16. It is also pertinent to mention here that PW-1 is wife of accused. There is nothing on record that relations between the two were strained or that she had any reason to falsely implicate the accused.
41. Ld. Counsel has also contended that it was the accused, who purchased the plot for Radha Devi PW-1 but PW-5, who sold the plot to Radha Devi denied this suggestion specifically. He stated that Awdesh never met him and did not make any payment. It is also important to note that in the documents Ex.PW-1/C1 to C4, Radha Devi is not shown as wife of Awdesh but is shown as widow of Ram Sewak. If Awdesh had married with PW-1, as alleged, before the transfer of the property then it would have been mentioned as Radha Devi wife of State Vs. Avdesh SC No.59346/16 :: 42 ::
Awdesh. It is not the case and hence it can not be said that it was accused, who purchased the plot in his name of PW-1 coupled with the fact that PW-5 specifically said that Awdesh was not with Radha at that time and Awdesh did not make any payment.
42. So far as DNA profiling of material found in nail clippings is concerned, the DNA of the deceased only was found and not of any other person, hence it can not be said that deceased was strangulated by some other person and not by the accused. Defence also tried to bring the theory of murder by some other person in the gold chain but all the witnesses specifically stated that deceased never used to wear any gold chain. She was only having a silver chain and that was in her neck even after death. Even in the photographs Ex. PW-1/B4 and Ex.PW-1/B5 that silver ornament is clearly visible in her neck. Hence, I do not find any merit in the contention of the Ld. Defence counsel.
43. It is also on record that he absconding after State Vs. Avdesh SC No.59346/16 :: 43 ::
the offence and this fact is corroborated by all the witnesses including his real brother, which strengthen the prosecution case and reflects upon the conduct of the accused immediately after the commission of offence and point towards his guilt. Though there are contradictions as to at what time they took the dinner and where the statements were recorded but that does not go to the route of the case, hence much importance can not be attached to that. It is also important to note that the bone of the contention was the plot which was in the name of PW-1. Accused was pressurizing to transfer that plot in his name. There used to be quarrel between the accused, PW-1 and the deceased used to intervene and say that Radha will not transfer the plot in his name and also asked Radha not to do so. This fight was going on for the last few days and due to this reason accused also started sleeping out side the room. The fact that this dispute was going on is also supported by PW-2 and PW-3 and they State Vs. Avdesh SC No.59346/16 :: 44 ::
said that accused used to say, "budhia jab tak nahi maregi, yeh plot mere naam nahi hoga". Ld. Defence counsel raised the objection that in the complaint the contention is that accused was asking for sale of the plot, whereas when the witnesses appeared they deposed that accused used to pressurize for transfer of plot in his name, which is contradictory to the stand taken in the complaint. I found that sale or transfer of the plot in his name or in the name of any other person will have the same impact, so far as Radha is concerned. She will loose the title of the plot and then the money will be coming to the accused and if it is transferred in the name of the accused then he can sell it any time to any person for any consideration. Hence, this does not effect the merit of the case.
44. Keeping in view the above discussions, testimony of PW-1, the motive that accused was pressurizing the PW-1 to transfer the plot and the deceased was hindrance in that, he strangulated her State Vs. Avdesh SC No.59346/16 :: 45 ::
as deposed by PW-1 and corroborated by the post mortem report Ex.PW-14/A. Thereafter, accused absconded as deposed by PW-1 to PW-4 and later on apprehended. Keeping in view all these facts as proved by the prosecution. I hold the accused guilty and convict him for the offence punishable under Sec.302 IPC.
Let he be heard on the quantum of sentence on 07.02.2017.
File be consigned to record room.
Announced in the open court today on 02.02.2017 (VIRENDER KUMAR BANSAL) ASJ/Pilot Court/North District Rohini Courts/New Delhi.
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