Delhi District Court
State vs . Karamveer @ Sonu, on 5 September, 2012
IN THE COURT OF SH. VIRENDER BHAT, A.S.J., DWARKA
COURTS, NEW DELHI.
SC No.49/10.
Unique Case ID No. 02405R0267532010.
State Vs. Karamveer @ Sonu,
S/o Sh. Banwari,
Balmiki Mohalla Bharthal,
New Delhi.
Date of Institution/filing : 21.9.2010.
FIR No.121 dated 23.6.2010.
U/s.302 IPC
P.S. Kapashera.
Date of reserving judgment/Order : 21.8.2012.
Date of pronouncement : 05.9.2012.
JUDGMENT
1. The accused has been arraigned in this case for the murder of his wife, who breathed her last on the night intervening between 22.6.2010 and 23.6.2010 at her matrimonial home in village Bharthal.
2. The prosecution case, stated briefly is that an information was received in P.S. Kapashera on 23.6.2010 at 1.45 a.m. from police control room to the effect that a quarrel has taken place in village Bharthal near Community Centre. The information was given to PCR by a person from mobile no. 9717405214. The information was recorded as DD No.5A and it was assigned to SI Vikram Singh for suitable action. Accordingly, SI Vikam alongwith HC Ram Niwas proceeded to the aforesaid SC No.49/10. Page 1 of 18 spot. They reached the house of accused Karamvir, who was present in the house and on inquiry, he told them that he had made the call regarding quarrel. He also told SI Vikram that he has throttled his wife Anju to death and showed to him her dead body, which was lying on a cot in eastern room of the house. Some marks were found on the throat of the deceased. Crime Team was called to the spot which inspected the spot and photographed it. The father of the deceased was intimated about the incident, who also reached the spot of incident and his statement was recorded by SI Vikram, wherein he stated that the accused had been quarrelling and beating the deceased after getting drunk for the last about two years. He used to prevail upon his son-in-law i.e. accused Karamvir but the accused did not mend his ways.
3. It is further the case of the prosecution that the dead body of the deceased was sent to DDU Hospital Mortuary, where its postmortem was conducted and the autopsy doctor opined the cost of death to be ligature strangulation and throttling. Upon this an FIR u/s.302 IPC was got registered. During the course of investigation, accused came to be arrested and is stated to have made a disclosure statement, admitting his guilt. He has also stated to have pointed the spot where he committed the offence. The exhibits handed over to the IO by the autopsy doctor as well as nail clippings and blood gauze of the accused were sent to FSL, Rohini for DNA profiling.
4. It is further alleged that the accused had in his call made to PCR on 23.6.2010 himself stated that he has committed SC No.49/10. Page 2 of 18 the murder. Therefore, his voice sample was obtained which alongwith the recorded call of accused in the PCR were sent to FSL for comparison.
5. The motive for the accused to kill his wife has been stated in the Charge Sheet thus. The accused had come to know that the deceased had illicit relations with a person named Uttam Kumar. On 19.6.2010 the accused had caught the deceased and Uttam Kumar red handed and accused gave a sound beating to Uttam kumar with the help of his associates Naveen, Jagphool @ Deepak, Manoj and Shokeen in front of deceased Anju. Thereafter, accused called the brother of deceased namely Rishi Dass to his house and then got murdered Uttam Kumar in Dharuhera at the hands of his associates. Since the deceased was the only witness to the beatings given by the accused and his associates Uttam Kumar and she used to threaten the accused that she would disclose the incident to the police, she was killed by the accused for this reason. The murder of Uttam Kumar is the subject matter of case FIR No.118/10, U/S.365/302/34 IPC.
6. After completion of the investigation, Charge Sheet was laid before the concerned Magistrate, who then committed the case to the court of Sessions.
7. Following Charge was framed against the accused on 02.11.2010 :
"That on 23.6.2010 at about 1.25 a.m. In a room inside the house of Karamvir, Balmiki Mohalla, Village Bharthal, Delhi, under the jurisdiction of P.S. SC No.49/10. Page 3 of 18 Kapashera, you committed the murder of your wife Anju (deceased) D/o Sh. Ram Dass, by strangulation and thereby committed an offence punishable u/s.302 IPC and within the cognizance of this Court."
8. The prosecution has examined 22 witnesses to bring home the guilt of the accused. The accused was examined u/s. 313 Cr.PC on 28.3.2012 and 16.5.2012 wherein he denied all the incriminating circumstances put to him and claimed to be innocent. The accused examined his brother-in-law Sh. Rishi Dass in his defence as DW1.
9. I have heard Ld. APP for State, Ld. Counsel for the accused and have perused the entire material on record.
10. Ld. APP submitted that the prosecution has successfully proved the circumstances leading to death of the deceased which only point to the guilt of the accused. According to him, the accused is liable to be convicted for the murder of his wife.
11. Per contra Ld. Counsel for the accused submitted that the accused, in the instant case, has been implicated for the murder of his wife i.e. deceased Anju on the basis of the statement of Anju's father Ram Dass and confession made by the accused to the police official at police control room, who received his call and to the police officer, who had reached the spot after receiving the call about the incident. He submitted that the confession made by the accused to the PCR officials or to the officials of P.S. Kapashera, who had reached the spot is clearly inadmissible in SC No.49/10. Page 4 of 18 evidence in view of bar contained in section 25 of Evidence Act and cannot be considered at all. The only persons, who could have deposed regarding the circumstances which led to the death of the deceased are her father Ram Dass and her brother Rishi Dass. He further submitted that Ram Dass has turned hostile and did not support the prosecution case. Rishi Dass, though cited as a witness by the prosecution, but was not examined by it and was dropped. He appeared for the accused as DW1 and as per his testimony, the accused was not present in his house when the deceased was killed. He argued that prosecution has not lead any evidence to show that it is the accused, who killed his deceased wife and hence the accused is liable to be acquitted.
12. At the outset, I may note that there is no eye witness to the incident. The prosecution case rests upon circumstantial evidence only. The law regarding circumstantial evidence is very well known by now and can be summarized as under:
(i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;
(ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
(iii)the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that with all human probability the crime was committed by the accused and none else; and
(iv)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 SC No.49/10. Page 5 of 18 the accused but should be inconsistent with his innocence."
(See - Krishan vs. State, (2008) 15 SCC 430)
13. The Supreme Court in Sapna Talwar vs. State, 2011 (IX) AD Delhi 165 has observed :
"No doubt, the courts have also added two riders to the aforesaid principles namely, (i) there should be no missing link but it is not that everyone of the links must appear on the surface of the evidence, since some of these links can only be inferred from the proved facts and (ii) it cannot be said that the prosecution must meet each and every hypothesis put forward by the accused, however far-fetched and fanciful it may be.
It is 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.PC in respect of an established fact, the said false denial could supply a missing link in the chain of circumstances appearing against him."
14. Let me now examine the evidence lead by the parties in this case in the light of the aforesaid legal principles governing the cases based up circumstantial evidence.
15. Sh. Ram Dass, the father of the deceased, has been examined as PW11. He did not support the case of the prosecution. He deposed that on 22.6.2010, the brother-in-law of the deceased namely Manoj told him on telephone that a quarrel had taken place between the deceased and the accused. He sent his younger son Rishi Dass to the matrimonial home of Anju to find SC No.49/10. Page 6 of 18 out what had happened. Rishi Dass after reaching the matrimonial house of the deceased called him and told him that nothing serious had happened, it was a triffle and he would prevail upon the two. He asked Rishi Dass to stay there for the night. Rishi Dass took the accused Karamvir to the house of his father, which was at a distance of about 500 meters from Karamvir's house, in the night in order to avoid further quarrel between the accused and the deceased. There accused and Rishi Dass took liquor and slept. In the morning, Rishi Dass informed him saying that condition of Anju is very serious and asked him to reach Bharthal immediately and when he reached Bharthal, he found a huge crowd in front of Karamvir's house. Accused Karamvir was in intensely drunken condition. Neighbours were whispering that it is not clear as to how it happened. He saw the dead body of Anju lying on the back seat of a Maruti Van parked in front of Karamvir's house. According to him, Karamvir told him that Anju has died because of his mistake, Anju may not have died, if he (accused) had been present in the house during the night.
16. The witness Ram Dass was declared hostile by the Ld. APP for State. In the cross examination conducted by Ld. APP, he admitted that his daughter had told his wife that accused takes liquor and added that she had not complained to him about such habit of the accused. Deceased Anju had visited his house about 10 or 15 days before his death and stayed there overnight. She used to visit them twice in a month. He denied the suggestion that the deceased had stayed with them for four months in the year 2009. He denied having stated to the police in his statement that accused used to take excessive liquor and thereafter used to SC No.49/10. Page 7 of 18 beat the deceased regularly. He further deposed that the accused, his father other relations told him that the deceased died of strangulation but nobody told him as to who strangled her. He also deposed that he met parents of the accused about four to five times after the death of Anju. He is on talking terms with them. He used to talk to them three to four times in a month on telephone. He denied other suggestions put to him by the Ld. APP. In the cross examination conducted on behalf of accused, the witness stated that no major complaint was made by his daughter to him regarding the accused. In reply to the court question, he expressed ignorance about the reason for the death of his daughter. He deposed that she was suffering from tuberculosis disease in the year 2006-07 and had fully recovered from the said disease. He made inquiries regarding the cause of her death from the uncles and neighbours of the accused, but nobody gave him any satisfactory reply.
17. From the testimony of PW11, it appears that he is also clueless about the cause of death of his daughter. There is nothing in his testimony to indicate that the accused killed his daughter or the conduct of the accused towards his daughter was such that the accused might have killed him. However, it is evident from his testimony that some big quarrel had taken place between the accused and deceased on 22.06.10 and he had to send his son Rishi Dass to the house of the accused to pacify the accused. The witness was confronted with his previous statement Ex.PW11/A, which forms the basis of FIR in this case, wherein he had stated that the accused confessed to him that he (accused) killed his wife (deceased Anju) by pressing her throat (throttling) SC No.49/10. Page 8 of 18 as she had slapped him during the quarrel. He admitted his signature at point A on this statement but made a clear departure from the same while deposing before the court.
18. The brother of the deceased namely Rishi Dass was cited as a witness by the prosecution, however, he was not examined by the prosecution and was dropped by the Ld. APP vide statement recorded on 26.3.2011. Rishi Dass has been examined by the accused in his defence as DW1. He has deposed that on 22.6.2010 he was sent by his father to the house of accused to see what sort of differences has arisen between the accused and the deceased and to prevail upon them. When he reached the house of the accused, younger brother of the accused namely Manoj met him on the way and they entered the house of the accused together. Accused as well as the deceased was present in the house. He asked his sister what the matter was and she replied that there was nothing serious. He then talked to accused also and prevailed upon them to live in harmony with each other. Thereafter, he and the accused went outside. Manoj had already left. He made a telephonic call to his father saying that there was nothing serious between the accused and the deceased and advised him not to worry. Thereafter, he and the accused consumed liquor and went to another house of the accused where parents of the accused used to stay. They had their dinner in the house of the parents of the accused and slept there for the night. At about 1 a.m. or 2 a.m. in the night, three or four persons came to the house and raised alarm. He woke up and asked the accused to wake up. Those persons asked them to go to the house of the accused and he found that the parents of the accused SC No.49/10. Page 9 of 18 had already left the house. He and the accused also reached the house of the accused and found that a crowd had gathered around the house and all relatives of the accused including his parents were present there. When he entered the house, he found his sister lying on a cot. She was motionless and probably dead by that time. He called his father and apprised him about the incident. According to him, the accused started blaming himself that if he had remained in the house, he would have saved Anju. Accused also declared that he is responsible for whatever has happened and that he has killed Anju. Somebody informed police and police also reached the spot. Police made inquiries from him and he narrated the incident to them as he narrated in the court. In the cross examination conducted by Ld. APP for State, he denied all the suggestions put to him. There is nothing further noteworthy in his cross examination.
19. Hence DW1 also has completely exonerated the accused from the offence with which he has been charged. However, his testimony cannot be read in isolation and has to read alongwith the deposition of other prosecution witnesses on record.
20. As per the prosecution case, the deceased had been strangled to death. Postmortem report Ex.PW12/A shows that following external injuries were found on the dead body :
(1) Ligature mark present on the antero-bilateral aspect of neck at the level of below thyroid cartilage with horizontally placement appearing scattered and interrupted in nature and no uniform distribution in SC No.49/10. Page 10 of 18 respect of grooving or width. The total length of ligature mark is 15.0 cm with 3-4 cm in width. The marginal area and surface of the ligature mark found abraded- bruised with reddish brown in colour and least hardened on touch. On dissection of the area (neck) multiple scattered bruises and haemorrhagic sports revealed on the both sides of larynx thyrohyoid and cricothyroid muscle with fractured superior horns of thyroid cartilage and cricoid cartilage alongwith collection of blood clot adjacent to fractured site.
Numerous haemorrhagic sports present on the
surface laryngeal mucosa.
(2) Two apartly placed bruises of size 2 cm X 1 cm and 1 cm X 1 cm present on the right shoulder (upper surface) with reddish brown in colour. One abrasion of size 2 cm X 1 cm present on the back part of the right elbow with reddish brown in colour. (3) One bruise of size 2.5 cm X 1.5 cm present on the lateral aspect of right thigh with reddish brown in colour.
(4) One contusion of size 10 cm X 3 cm present on the upper part of the chest with revealed dark red colour blood clot on section of it.
21. The autopsy doctor PW12 has opined the cause of death of the deceased to be asphyxia caused by ligature strangulation by using clothes (Chunni) like material.
22. It is on record that a Chunni Ex.P1 had been seized SC No.49/10. Page 11 of 18 from the spot near the dead body by the I.O. The Chunni had been shown to autopsy doctor PW12, who in his subsequent opinion Ex.PW12/B opined that the strength of the ligature material is sufficient to constrict the neck of the deceased during the act of ligature strangulation and the same is also compatible to produce the ligature mark present on the neck of the deceased.
23. It is noteworthy that PW12 has not been cross examined on behalf of the deceased at all. So from his deposition and the postmortem report prepared by him, it is limpid that the deceased was killed by strangulation with the help of Chunni Ex.P1. It was a homicidal death and the deceased had offered some sort of resistance during the act, which is manifest from the bruises found on her body besides the ligature mark.
24. As per the postmortem report, the deceased had breathed her last around 1.15 a.m. in the night intervening between 22.6.10 and 23.6.10.
25. Prosecution case is that the accused himself informed the PCR about the incident by making a call at telephone no.100 from his mobile phone no.9717405214 saying that he had killed his wife by strangulating her with a Chunni. The PCR form has been proved as Ex.PW22/A. It shows that a call was received at the Control Room on 23.6.10 at 1.43.58 a.m. from Karamvir (accused) from mobile no.9717405214 on giving this information about the murder of his wife. The remaining contents of the call being incriminating in nature and having been recorded by a police official at Police Control Room, are inadmissible in view of SC No.49/10. Page 12 of 18 section 25 of the Evidence Act and hence are left out of consideration.
26. From the deposition of PW23, the Nodal Officer of M/s. Bharti Airtel Ltd., it is proved that mobile no.9717405214 was allotted in the name of Karamvir (accused). The customer application form is Ex.PW23/A. The photocopy of Election I. Card of the accused submitted by him to the service provider as proof of his identity and residence is Ex.PW23/B. It may be noted here that the accused in his statement u/s.313 Cr.PC has admitted that the aforesaid mobile number was obtained by him and was being used by him only. PW23 has also proved the call details record of the said mobile number as Ex.PW23/C, which show that the two calls were made from this mobile phone to telephone no.100 on 23.6.2010 at 1.34.51 a.m. and 1.42.22 a.m. Thereafter, two calls had been made on this mobile phone number from mobile phone no.9810844826 at 1.48.54 a.m. and 2.01.43 a.m. These appear to have been made by I/c PCR van, which was proceeding towards the spot, as would be seen hereinafter.
27. PW7 was the Incharge, PCR Van Zebra 89 on the night intervening between 22.6.2010 and 23.6.2010 and PW6 was also on duty on the said PCR van. As per testimonies of both these witnesses, they reached the spot of incident on receipt of a call from police control room at 1.42 a.m. PW7 has deposed that they had been given the telephone number of the person involved in the quarrel. He did not recollect that telephone number. While on the way, he made a call on that telephone number and told that person to come near their vehicle on hearing siren of the vehicle.
SC No.49/10. Page 13 of 18When they reached Community Centre, village Bharthal, a person, who told his name to be Karamvir came to their vehicle and told them that he has killed his wife by strangulating her with a dupatta. He alongwith driver of the vehicle (PW6) accompanied Karamvir to his room and found his wife on a cot with some marks on her neck. A dupatta was also lying on the cot. Thereafter, Karamvir went to call his parents. When he did return for sometime, PW7 gave a call at Karamvir's mobile and Karamvir told him that he is coming alongwith his parents. Thereafter, Karamvir returned to the room alongwith his parents. By that time, local police had also arrived at the spot and he handed over the investigation to the local police. He correctly identified the accused Karamvir in court. In the cross examination, he denied the suggestion that several persons including the in-laws of Karamvir were present at the spot when they reached there.
28. PW6 has corroborated the version of PW7.
29. It is evident from the deposition of PW6 and PW7 that when they reached the spot i.e. house of accused Karamvir, they found nobody else present there except accused Karamvir. It is thereafter that accused Karamvir went to call his parents. Nothing contrary has come in their cross examination and no material has been brought to my notice by the Ld. Counsel for the accused which may persuade me to disbelieve their testimonies. Even no suggestion has been given to these witnesses in their cross examination that accused did not go to call his parents and his parents were already present at the spot. The evidence of these two material witnesses PW6 and PW7 falsifies the testimony of SC No.49/10. Page 14 of 18 DW1 Rishi Dass, which has been noted herein-above. According to DW1, parents of accused had already reached the spot and thereafter he as well as the accused came to the spot, when they were awakened by some neighbours. PW6 and PW7 neither speak of parents of the accused or the neighbours being present at the spot and their version appears to be true and unassailable.
30. PW9 HC Ram Niwas had also reached the house of accused alongwith IO SI Vikram on receipt of DD No.5A. He too found only accused Karamvir and a PCR van at the spot. In the cross examination, he deposed that they had reached the spot at about 2.15 or 2.30 a.m. and some 3 or 4 public persons gathered at the spot later on. Thus, it is evident from his testimony also that accused was found alone with the dead body of his wife. Neighbours had reached the spot later on, after the arrival of police. When neighbours were unaware about the death of Anju till the arrival of police or PCR, how could accused and DW1 be awakened by neighbours to tell them about the incident, as testified by DW1. Clearly, the testimony of DW1 is nothing but a blatant lie.
31. It has come on record that Rishi Dass had come to depose from jail as he is in custody in connection with FIR No.118 of 2010 u/s.302/365/34 IPC, P.S. Sarojini Nagar, which fact was informed to the court by the Ld. Counsel for the accused on 05.7.2012 and is noted in the order sheet of that date. It has come on record that accused Karamvir is also an accused in that FIR. Therefore, it is quite apparent that DW1 has made false statement before this court being co-accused with Karamvir in FIR SC No.49/10. Page 15 of 18 No.118/10.
32. The version of DW1 is also to be disbelieved for various other reasons. Accused Karamvir has not produced his parents as witnesses in his defence, who could have testified about his presence in their house on the night of incident. It appears that the accused found it easy to impress upon his co- accused in FIR No.118/10 (DW1) to depose falsely in his favour in the present case. The testimony of DW1 lacks credibility and reliability and I see no difficulty in discarding the same.
33. The situation which arises now is that the accused Karamvir was present alone in his house near the dead body of his wife when the PCR officials PW6 and PW7 reached there. Accused Karamvir had himself reported the incident to PCR by making a call from his mobile number at telephone no.100. The death of the deceased Anju has taken place in the dead of night i.e. around 1 a.m. This is that time of the day when the husband is normally expected to be at his house by the side of his wife. It was for the accused to explain to the court how he came to know about the death of his wife and in what circumstances, she was murdered and by whom, if in fact, he did not kill her. No such explanation has come forward from the accused. He had an opportunity to explain the circumstances in which his wife got killed, in his statement u/s.313 Cr.PC. The accused, while denying the incriminating circumstances put to him during his examination u/s. 313 Cr.PC only stated that he is innocent and has been implicated falsely in this case. He does not even say that he was not present in his house during the night of the incident. He took the aid of SC No.49/10. Page 16 of 18 DW1 in conveying to the court that he was not present in his house when his wife got killed, however, the testimony of DW1 has been found to be absolutely unreliable. It has been held by the Supreme Court in Trimukh Maroti Kirkan vs. State of Maharashtra, 2006 (X) SCC 681 that where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be on the prosecution but the nature and amount of evidence to be led by it to establish the charge cannot be on same degree as required in other cases of circumstantial evidence. The burden would be of comparatively too lighter character. In view of section 106 of Evidence Act, there should be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot kept away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lie entirely on the prosecution and there is no duty at all on the accused to offer any explanation.
34. In my opinion the prosecution in the instant case has successfully established the presence of accused in his house when the murder of his wife was committed. It was for the accused to explain to the satisfaction of the court as to how and in which manner his wife was got killed and by whom. Since there is no explanation at all coming forth from the accused in this regard, the only logical conclusion which follows is that it is the accused himself, who murdered his wife i.e. deceased Anju.
35. For the aforesaid reasons, I am of the opinion that the prosecution has been successful in proving the charge against the SC No.49/10. Page 17 of 18 accused. The accused is liable to be convicted and is hereby convicted for having committed the offence punishable u/s.302 IPC.
Announced in open (VIRENDER BHAT)
Court on 05.9.2012. A.S.J. :Dwarka Courts
New Delhi.
SC No.49/10. Page 18 of 18