Delhi District Court
Sc No.8109 (State vs Surender & Ors.) on 10 May, 2011
SC No.8109 (State Vs Surender & Ors.)
IN THE COURT OF SH. DINESH KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE - 02 : (SOUTH) :
SAKET COURTS : NEW DELHI
SC No. 81/09
Unique Case ID No.02403R0087812009
State V/s. 1. Surender Singh
S/o Late Sh. Raj Singh,
R/o H.No.88, Humayunpur Vill.,
Safdarjang Enclave,
New Delhi.
2. Smt. Lakhpati Devi
W/o Late Sh. Raj Singh,
R/o H.No.88, Humayunpur Vill.,
Safdarjang Enclave,
New Delhi.
3. Narender Singh
S/o Late Sh. Raj Singh,
R/o H.No.88, Humayunpur Vill.,
Safdarjang Enclave,
New Delhi.
FIR No. : 534/07
u/Ss. : 302/201/34 IPC
PS : Sarojini Nagar.
Judgment Announced on : 09.05.2011
Date of Order on Sentence : 10.05.2011
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SC No.8109 (State Vs Surender & Ors.)
ORDER ON SENTENCE
Present : Sh. M.Z. Khan, Ld. Addl. PP for State
All the convicts produced from JC
Sh. Pankaj Kumar, Ld. counsel for convicts Lakhpati &
Narender
Sh. D.K. Aggarwal, Ld. Proxy counsel for Ms. M. Begum, Ld.
counsel for convict
Heard on the point of sentence.
1.0 Ld. Addl. PP submitted that the present case falls within the category of rarest of rarest cases as an innocent lady has been brutally murdered by the convicts. It has been submitted that it is not a case where a person has been killed with single shot or with one injury. There were 14 injuries found on the dead body of deceased. The murder was committed in presence of three innocent children. Ld. Addl. PP demands that this is a fit case where capital punishment may be awarded.
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SC No.8109 (State Vs Surender & Ors.) 2.0 Sh. Pankaj Kumar, Ld. counsel for convicts Narender and Lakhpati submitted that the case do not fall under the category of rarest of rarest cases. Leniency has also been demanded on the ground that there are three minor children and except the convicts there is nobody to look after them.
Sh. D.K. Aggarwal, Ld. proxy counsel for Ms. M. Begum, Ld. counsel for convict Surender submitted that convict has three small children and therefore a lenient view may be taken. 3.0 I have heard considered the submissions and have perused the record.
4.0 Sentencing is the most delicate task in Criminal Justice Delivery System. Punishment awarded to guilty aims at retribution, justice, deterrence, reformation and protection. The concept of justice as an aim of punishment means both that the punishment should fit the offence and also that like offences should receive similar punishments. The deterrence theory of punishment aims at deterring not only the actual offender from further offences but also potential offenders from breaking the law. I consider that main aim of punishment is the protection of society. Proportion between crime and punishment is crucial factor while Page 3 of 60 SC No.8109 (State Vs Surender & Ors.) awarding sentence. If in a serious offence a lenient view is taken the victim may take it a misplaced sympathy to the perpetrator of the crime leaving the victim and his family in oblivion. Punishment should be designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence. 4.1 Law commission in its 35th report after carefully sifting all the materials collected by them inter alia held that capital punishment does act as a deterrent. The very existence of the rule of law and fear of being brought to book operates as a deterrent of those who have no scruples in killing others, if it suits their ends. Every member of the community is able to live with safety without his / her own life being in danger. If a member of the same community shows any ingratitude by killing a member of the community, the community may also be compelled to withdraw the protection by awarding death penalty.
Every murder is a heinous crime but in all the murder cases capital punishment cannot be awarded. While choosing between the capital punishment and life imprisonment number of factors are taken into account namely the motive of the crime, manner of assault, impact of crime on the society as a whole, personality of the accused, circumstances and facts of the case as to whether the crime committed has been Page 4 of 60 SC No.8109 (State Vs Surender & Ors.) committed to satisfy any kind of lust, greed or in pursuance of anti social activity or by way of organized crime , drug trafficking or the like. 4.2 Hon'ble Supreme Court in several landmark cases, have laid down criteria for granting capital punishment only in the rarest of rarest cases. In Bachan Singh Vs State, AIR 1980 SC 898, it has been held that only in exceptional and rarest of the rarest cases, death sentence can be imposed. The court laid down certain principles and the same were specifically explained in Machhi Singh's case, AIR 1983 SC 957. The same are as follows :
1. The extreme death penalty of death need not be inflicted except in gravest cases of extreme culpability ;
2. Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration alongwith the circumstances of the 'crime';
3. Life imprisonment is the rule and death sentence is an exception.
In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having Page 5 of 60 SC No.8109 (State Vs Surender & Ors.) regard to the nature and circumstances of the crime and all the relevant circumstances.
4. A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating factors have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
While calculating aggravating and mitigating, the following guidelines must be applied :
a) is there something uncommon about the crime which renders sentence of imprisonment for the life inadequate and calls for a death sentence ; and
b) are the circumstances of the crime such that there is no alternative but to impose death sentence even after recording maximum weightage to the mitigating circumstances which speak in favour of the offender.
5.0 In Bachan Singh's case, the Constitutional Bench considered the following circumstances as aggravating circumstances which may fall for imposition of death penalty :
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SC No.8109 (State Vs Surender & Ors.)
1. if the murder has been committed after previous planning and involves extreme brutality ; or
2. if the murder involves exceptional depravity ; or
3. if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed
i) while such member or public servant was on duty ; or
ii) in consequence of anything done or attempted to be done by such member or public servant whether at the time of murder, he was such member or public servant, as the case may be, or had ceased to be such member or public servant ; or
4. if the murder is of a person who had acted in the lawful discharge of his duty under section 43 Cr.P.C. or who had rendered assistance to a Magistrate or a public offer demanding his aid or requiring his assistance u/S.37 and Section 129 of the code.
5.1 I consider that while deciding such cases, the Judge has to keep aside his personal opinion regarding such matters. If the case has shocked collective conscience of the community, the judiciary is expected to inflict extreme punishment irrespective of personal opinion about death penalty. If the murder is brutal, grotesque, diabolical, revolting or so as to Page 7 of 60 SC No.8109 (State Vs Surender & Ors.) done in dastardly manner so as to arouse intense and extreme indignation of the community, capital punishment is appropriate punishment.
6.0 In the present case, a helpless lady, mother of 3 innocent children ranging between 3 to 7 years, was done to death by three accused persons in the four walls of the house. As per postmortem report, the deceased was of around 5 ft. 4 inch. of height and was well built, thus, all the three must have acted in an extreme cruel or evil manner so as to commit her murder. 14 injuries were found on the body of the deceased starting from eye to the lower part of the leg. The cause of death has been opined to be the injuries, strangulation and smothering. Thus, till end, it seems that the accused persons continued to act in a most brutal, diabolic and dastardly manner. The motive was only that this helpless lady used to ask for a certain piece of land may be for the future safety of her children.
The murder in this case has been committed with premeditated mind with extreme brutality. It is not a murder committed in a heat of passion.
A father marriages his daughter with belief that his daughter would be protected by her Husband and in laws. A innocent girl also goes to totally unknown persons under the belief and assumption that she would remain safe and sound there. In Hindu mythology, the belief is that once the Doli goes from the parents' house only the dead body comes out from Page 8 of 60 SC No.8109 (State Vs Surender & Ors.) the matrimonial house. This indicates the extreme trust and confidence on the persons whom the bride never knew before her marriage. If such a bride is killed in such a brutal manner by all the inlaws, together in furtherance of common intention, what could be more brutal or diabolic. This is not the murder of a woman, this is a murder and assault on dignity of entire womanhood. Here is not the case where only husband get devil. Here is the case where all the inlaws get together to finish the life of this lady without any provocation. This was absolutely a premeditated act committed by persons in position of domination and trust in a cold blooded manner.
6.1 The question is that whether the present case falls within the category of rarest of rarest cases. I consider that in the present case, an innocent helpless woman has been murdered in a very brutal manner by the accused persons in furtherance of common intention. This was not a murder of woman. This was a murder of womanhood. A lady who has come to their house as a bride was murdered by all these convicts by causing several stab injuries and she was smothered and strangulated. The ground on which the leniency has been sought, I consider is also misplaced. The offence was committed while three innocent small children were present in the same house and I consider that these children will Page 9 of 60 SC No.8109 (State Vs Surender & Ors.) never be able to live with the convicts. This case also indicates towards the mentality of a honour killing where if a lady raises voice in the family, the family gets together and done her away with death.
It has been held by the Apex court that the cases of "honour killings" falls within the category of rarest of rarest cases deserving death sentence. I consider that courts while delivering judgments and awarding punishments is required to give a message to the society that the mentaility of certain class, that the woman is not allowed to raise any voice is to be changed. It is the right time to stamp out these barbaric, feudal practices which are a slur on our nation. In such cases, death penalty is necessary as a deterrent for such outrages, uncivilized behaviour. A message should go to the society that if an innocent woman is killed in such a brutal manner, the gallows await them.
This court is of the considered opinion that court cannot be a mute spectator to the happening in the society. Society looks upon the court for appropriate punishment in case of heinous offence. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victims belong. The conduct of the convicts in this case also indicates that there was no remorse and repentance even after having committed dastardly murder. The act of the Page 10 of 60 SC No.8109 (State Vs Surender & Ors.) convicts reflect extreme depravity and the gruesome manner in which they killed the deceased and dealt with her body.
6.2 This is a case which has shocked the conscious of this court. I have considered all the mitigating factors and aggravation factors. The aggravating factors certainly outweigh the mitigating factors. I am of the considered opinion that it is a case which falls within the category of rarest of rarest cases and therefore, I award death penalty to the convicts namely Surender Singh, Lakhpati Devi and Narender, for the offence u/Ss.302/34 IPC in case FIR No.534/07 PS : Sarojini Nagar for having committed murder of Urmilla Devi in furtherance of common intention.
Convicts are also sentenced to RI for 7 years and to pay fine of Rs.1,000/ in default SI for 3 months u/Ss.201/34 IPC in case FIR No.534/07 PS : Sarojini Nagar.
Proceedings u/S.366 Cr.P.C. be submitted to the Hon'ble High Court for confirmation of Death sentence. The death sentence shall not be executed unless it is confirmed by the Hon'ble High Court. Page 11 of 60
SC No.8109 (State Vs Surender & Ors.) 6.0 A copy of this order along with judgment be supplied to the convicts free of cost.
File be consigned to Record Room.
Announced in the open court (Dinesh Kumar Sharma) today on 10.05.2011 ASJ02(South) / Saket Courts New Delhi.
Page 12 of 60 SC No.8109 (State Vs Surender & Ors.) IN THE COURT OF SH. DINESH KUMAR SHARMA ADDITIONAL SESSIONS JUDGE - 02 : (SOUTH) :
SAKET COURTS : NEW DELHI SC No. 81/09 Unique Case ID No.02403R0087812009 State V/s. 1. Surender Singh S/o Late Sh. Raj Singh, R/o H.No.88, Humayunpur Vill., Safdarjang Enclave, New Delhi.
2. Smt. Lakhpati Devi W/o Late Sh. Raj Singh, R/o H.No.88, Humayunpur Vill., Safdarjang Enclave, New Delhi.
3. Narender Singh S/o Late Sh. Raj Singh, R/o H.No.88, Humayunpur Vill., Safdarjang Enclave, New Delhi.FIR No. : 534/07
u/Ss. : 302/201/34 IPC PS : Sarojini Nagar.
Date of Committal : 02.04.2008 Arguments Concluded on : 30.04.2011 Page 13 of 60 SC No.8109 (State Vs Surender & Ors.) Judgment delivered on : 09.05.2011 J U D G M E N T. 1.0 On 17/10/2007, the deadbody of a young lady identified as Urmila aged around 32 years emanating foul smell with multiple stab injuries was found inside a Diwan in her matrimonial home. Her three children Master Surya Pratap aged 6 years, Kr. Nivedita aged 9 years and Master Sidharth aged 4 years were found locked in the room. The husband Surender Singh and mother in law Lakhpati Devi were arrested from the spot. Weapon of offence, sword, was also recovered at the instance of husband Surender. Allegedly, the young lady was brutally murdered by her husband, mother in law and jeth with sword and by smothering and strangulation and after committing the murder, concealed the dead body in the bed having a box. The motive behind the gruesome murder was property. The recovery of dead body from bed box in H.No.88, Humayunpur Village, is not disputed by the defence. Her jeth (elder brother of husband) i.e., Narender Singh absconded and was declared PO.
Lateron he was arrested on 18/2/08 and supplementary chargesheet was filed against him. The defence has not disputed the presence of Lakhpati Devi on the spot. The defence pleaded that Narender (jeth) who was Page 14 of 60 SC No.8109 (State Vs Surender & Ors.) unmarried, used to remain outside the home for months altogether and husband Surender was not present at home on the day of the incident. The question before the Court is that who committed the murder of Urmila Devi?
2.0 For this brutal murder, accused persons were charged for the offence u/S 302/34 IPC. They were also tried for the offence u/S 201/34 IPC for causing the evidence of commission of offence to disappear. 3.0 It all started with an information received at PCR at 7:59 am (PCR form Ex.PW14/A) from telephone No. 9811861369 that a dead body is lying at H. No. 88, Humayunpur Village. On this information, PCR Van reached at the spot and flashed the message that the dead body of Urmila w/o Surender aged 31 years resident of the same house is lying in the bed. The information was conveyed to the Duty Officer, PS Sarojini Nagar. At PS Sarojini Nagar, the information was recorded vide DD No. 12A (Ex.PW4/A). DD No. 12A was marked to ASI Surender Kumar(PW12). PW12 ASI Surender Kumar alongwith Ct. Gangaram (PW9) and HC Rattan Singh (PW13) left for the spot. The information was also conveyed to SHO & Inspector Sunil Kumar. On the spot ASI Surender Kumar found Page 15 of 60 SC No.8109 (State Vs Surender & Ors.) accused Surender Singh, husband of the deceased and Lakhpati Devi mother in law of the deceased. The foul smell was emanating from the bed box. On opening the box, the dead body of Urmila Devi was found. Accused Surender Singh and Lakhpati Devi were looking scared and were not able to give any reply regarding the death of Urmila Devi. On inspection of the house, a room was found locked. The room was opened by Lakhpati Devi. In the room Nivedita aged 9 years, Surya Pratap aged 6 years and Sidharth aged 5 years were found in a shocked condition. The children in a cursory enquiry told that their father Surinder Singh, tau Narender and grandmother Lakhpati Devi have committed the murder of their mother Urmila Devi. The dead body was found in a pool of blood with multiple injuries. IO made an endorsement Ex.PW20/A and the same was sent through HC Rattan Lal (PW13) for the registration of the case. A case FIR No. 534/07 u/Ss 302/201/34 IPC was lodged at PS Sarojini Nagar. IO prepared siteplan Ex.PW20/C. As per siteplan, H.No. 88 was in two portions. A blood stained cot was found lying on the spot. The blood stained cot and bann (Ex.P6 & P7) were seized vide memo Ex.PW12/I. The bed box, which was having blood stains was dismantled and its pieces (Ex.P8 P9) were seized vide memo Ex.PW12/J. The articles lying on the bed box having blood stains were also seized vide memo Ex.PW12/D. The weapon of offence i.e. sword (Ex.P1) was recovered at the instance of Page 16 of 60 SC No.8109 (State Vs Surender & Ors.) accused Surender from the roof of adjoining house of H. No.88, Humayunpur Village and the same was seized vide memo Ex.PW12/E. The clothes, which accused Surender (Ex.P2 & P3) and Narender (Ex.P4 & P5) were wearing at the time of committing of offence had blood stains. However, coaccused Lakhpati Devi had washed them. These clothes were recovered and were seized in separate pulandas vide memo Ex.PW12/C. Accused Surender and Lakhpati were interrogated. Accused Lakhpati Devi was arrested vide memo Ex.PW11/A and her personal search was conducted vide memo Ex.PW11/B. Accused Surender was arrested vide memo Ex.PW9/A and his personal search was conducted vide memo Ex.PW12/F. Accused Surinder made a disclosure statement Ex.PW12/B and accused Lakhpati Devi made disclosure statement Ex.PW12/A. The crime team conducted inspection of the spot (Ex.PW1/A) on 17/10/07 from 11:45am to 1pm. It is pertinent to mention here that crime team report confirms the presence of accused Surender and Lakhpati on the spot. Photographs Ex.PW16/A1 to A12 were taken by the Crime Team.
Postmortem on the dead body was conducted on 18/10/07 by Dr.GA Sunil Kumar Sharma. As per postmortem report, injured had suffered following antemortem injuries:
1. Contused abrasion over right lower eye lid - size 3x1cm.Page 17 of 60
SC No.8109 (State Vs Surender & Ors.)
2. Multiple small contusions (7 in number) over left lower face around the mouth and knees.
3. Contusion over lower lip, middle part - size 2 x 1 cm.
4. Linear abrasion over left lower face along the lower jaw - size 5x1cm.
5. Multiple small contusions (5 in number) over anterior left neck - size ranging from 1 x 0.5 cms to 0.3 cms.
6. Stab injury over left lower chest - size 2.5cms x 1.0 cm cavity depth puncturing left lower lobe of the lungs.
7. Linear abrasion over posterior surface of right wrist - size 5x1cms.
8. Linear abrasions (3 in number) over right forearm.
9. Stab injury over left arm - size 2cms x 1.5cms, muscle depth over outer surface.
10. Incise wound over left forearm - size 1cm x 0.5cm.
11. Multiple linear abrasions (5 in number) over left forearm.
12. Stab wound over right thigh - size 2.5cms x 1cm, muscle depth.
13. Linear abrasion over right buttock - size 3cm x 1cm.
14. Incise wound over the front middle part of the left leg - size 2cms x 1cm.
It is pertinent to mention here that postmortem was conducted on 18/10/07 from 11:15am to 1pm and the time since death was opined to be about 23 days. Subsequently, weapon of offence "sword" was sent for Page 18 of 60 SC No.8109 (State Vs Surender & Ors.) subsequent opinion. In subsequent opinion Ex.PW8/B it was opined that injury No. 6,8,9,10,12 and 14 could be produced by the submitted weapon. The cause of death was opined as combined effect of asphyxia produced by smothering and manual strangulation and stab injury over the chest. 3.1 During investigation, statement of Nivedita and Surya Pratap and Sidharth were got recorded u/S 161 Cr.PC. In their statement recorded by the police, the children attributed the offence to the accused persons. The statement of these witnesses were also recorded u/S 164 Cr.PC. Nivedita in her statement u/S 164 Cr.PC Ex.PW18/A specifically stated that on 15/10/07 at around 8pm, her father Surinder had a quarrel with her mother and during that her grandmother Lakhpati Devi and her tau Narender also reached there. Lakhpati Devi caught hold of the hands of her mother and told her father and tau to kill her. Nivedita said that her father gave fist blows to her mother and also strangulated her. Her grandmother gave a sword to her tau Narender and Narender killed her mother with that sword. She stated that her father and tau put her mother in the bed and ran away. In her statement u/S 164 Cr.PC Nivedita Ex.PW18/A stated that her grand mother i.e, Lakhpati Devi confined the children in a room and made them to sleep. After sometime her father Page 19 of 60 SC No.8109 (State Vs Surender & Ors.) came back. Her grandmother did not allow her and her brother and sister to come out. In the morning when the police reached, they were locked in the room.
3.2 Similarly, Master Surya Pratap in his statement u/S 164 Cr.PC Ex.PW8/C stated that he is a student of Class III and at his home he has his grandmother, father and tau. He has also one elder sister Nivedita. On 15/10/07 during night, his grandmother Lakhpati Devi was holding the hands of his mother and father was beating his mother with the bricks and strangulating her. Tau Narender also hit his mother with a sword and then his grand mother, tau and father put his mother in the bed and that he himself and his brother and sister were made to sleep in the room and then in the morning police came.
3.3 Master Sidharth in his statement u/S 164 Cr.PC (Ex.PW8/E) identified the accused persons by name. He stated that on one night his grandmother caught hold of his mother and his father hit her mother with a brick, tau hit his mother with a sword. Sidharth who was only 5 yeas stated that his father also gave fist blows to his mother and his tau caught the Page 20 of 60 SC No.8109 (State Vs Surender & Ors.) neck of his mother and after killing his mother she was put in a bed. Then his grandmother told somebody and then police came. 3.4 It is worthwhile to mention here that the age of these children were between 5 years to 9 years and the statement of all the witnesses were recorded by Ld.MM Sh. Satish Kumar after 5 days of the incident. It is also pertinent to mention here that around 3 months before the date of incident a complaint was made by the deceased against accused Lakhpati Devi and Narender Singh against which a kalendra u/S 107/150 Cr.PC was instituted at PS Sarojini Nagar.
4.0 Prosecution examined 21 witnesses in support of its case. 4.1 PW1 ASI Umed Singh, Incharge, Crime Team proved his crime team report as Ex.PW1/A. 4.2 Nivedita was examined as PW2. Though the witness did not support the case of the prosecution on certain aspects, but admitted that Page 21 of 60 SC No.8109 (State Vs Surender & Ors.) her statement was recorded by Ld. MM. It came in her testimony that accused persons, deceased and children i.e. PW2, PW3 and PW7 used to reside in the same house. PW2 Nivedita stated that her mother is not alive as she was killed. It has come in the testimony of PW2 that on the day of the incident her mother gave them food and they slept. Her father was not in the house but the remaining two accused were in the house. When she got up in the morning, there was a crowd due to the murder of her mother. In the cross examination by Ld. Addl. PP , Nivedita, stated that she had heard the quarrel between her father and the deceased after around 8pm on 15/10/07. She also stated that when police came, she alongwith her brother and sister were taken out of the room.
4.3 PW3 Surya Pratap who was only 7 years of age at the time of making statement in the court also corroborated the fact that accused persons used to reside in the same house alongwith the deceased and children. On the day of incident,his mother gave food and they slept. His father was not present but the other two accused persons were present. He duly stated that in the morning when he woke up, there was crowd in the house and his grandmother informed him that his mother has died and the people gathered there due to the murder. During cross examination by Ld. Page 22 of 60 SC No.8109 (State Vs Surender & Ors.) Addl. PP, Surya Pratap admitted that they were taken out of the room next day when the police came. He also admitted that his statement was recorded by Ld. MM.
4.4 PW7 Sidharth who was only 5 years old at the time of making the statement only stated that his mother is not in the house and he does not know what happened to her. In the cross examination by Ld. Addl. PP, Sidharth initially stated that his statement was recorded by Ld. MM at Patiala House Courts. Then again stated that he does not remember if his statement was recorded by Ld.MM or not.
4.5 PW4 WHC Vidhya Devi, Duty Officer proved the recording of DD No. 12A as Ex.PW4/A and registration of FIR as Ex.PW4/B and proved the original rukka prepared by Inspt. Sunil Kumar as Ex.PW4/C. 4.6 PW5 Dilbagh Singh and PW6 Ram Karan relatives of the deceased turned hostile on certain points. However, they proved the identification of the dead body and the dead body was handed over to them after postmortem.
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SC No.8109 (State Vs Surender & Ors.) 4.7 PW8 Dr. GA Sunil Kumar Sharma, had conducted the postmortem on the dead body and proved the postmortem report as Ex.PW8/A and the subsequent opinion as Ex.PW8/B. 4.8 PW9 HC Gangaram had gone alongwith ASI Surender (PW12) and (PW13) HC Rattan Lal on receipt of DD No. 12A. He primarily deposed regarding presence of accused Surender and Lakhpati Devi on the spot and the dead body lying in the diwan with a foul smell. He also deposed that the accused persons were in a scared condition and the children were found in a locked room. He stated that one cot was lying in the room with lot of blood stains and a sword was lying there. Ct. Gangaram stated that there was a lot of smell and it seemed that the deceased was killed 1 or 2 days before they reached there. 4.9 PW10 Ct. Vir Singh is a formal witness who had taken copy of FIR and delivered to senior police officials and Ld. MM. 4.10 PW11 Lady Const. Jai Lakshmi had gone to the spot with SHO and Addl. SHO. She also deposed that there was a foul smell and the Page 24 of 60 SC No.8109 (State Vs Surender & Ors.) dead body of a lady was found in the diwan. A room was found locked from outside. Accused Lakhpati Devi opened the room and there were three children inside the room who were in a state of shock and scared. On enquiry the children told that their mother was murdered by the accused persons. Crime Team reached there and accused persons were arrested and they made the disclosure statement.
4.11 PW12 ASI Surender Kumar is a material witness in the sense that he was the first person to reach the spot alongwith Ct. Gangaram (PW9) and HC Rattan (PW13). He stated that when he entered the house, accused Lakhpati Devi and Surinder were present and a diwan was lying in the room and foul smell was coming. On opening the box, a deadbody was found lying in the box. Accused Surinder and Lakhpati were in a scared condition and they failed to give any satisfactory reply regarding the lying of deadbody inside the diwan. Crime team reached at the spot. Spot was inspected and photographs were taken. He also stated that a room was found locked and on asking, accused Lakhpati Devi opened the room and on opening the same, three children - one girl and two boys were found, in shocked and scared condition and on enquiry, they informed that their mother has been murdered by the accused persons. Disclosure of Page 25 of 60 SC No.8109 (State Vs Surender & Ors.) accused persons were recorded. The washed clothes of accused Surinder and Narender having blood stains were seized. PW12 was also a witness regarding the recovery of weapon of offence sword at the instance of accused Surinder. The sword was identified as Ex.P1. ASI Surender proved the seizure memo of blood stained wooden cot and the rope, the blood stained wooden pieces of diwan, clothes of accused persons and identified them as Ex.P2 to Ex.P7. The pieces of wooden diwan were identified as Ex.P8 and P9. In the cross examination, PW12 stated that sword was recovered from the roof of adjacent house on the left side and there was no gap in the walls of the house of the accused from where the dead body was recovered and the adjacent house. A suggestion was put to PW12 that on nearby plot / adjacent plot to the house of the accused, there is a five storey building. He stated that he alongwith the IO had gone to the roof of the adjacent house from where sword was recovered at the pointing of accused. Accused Surinder picked up the same and gave it to him.
4.12 PW13 HC Rattan Lal also made a consistent and corroborative statement on oath. He also stated that a dead body with a foul smell was found in the diwan. Accused Surinder and Lakhpati were Page 26 of 60 SC No.8109 (State Vs Surender & Ors.) found in confused and scary condition. The children were found in a locked room which was opened by accused Lakhpati Devi and on enquiry they told that their mother had been murdered by the accused persons. 4.13 PW14 HC Balram proved PCR form as Ex.PW14/A. 4.14 PW15 Ct. Ganesh had recorded the first information and filled up the PCR form Ex.PW14/A. 4.15 PW16 ASI Ajit Singh member of the Crime Team took the photographs Ex.PW16/A1 to A12. He also produced the negatives Ex.PW16/B1 to B12.
4.16 PW17 ASI Mahesh Chand was a witness to the seizure memo of the two sealed plastic jars with sample seal from Safdajang hospital.
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SC No.8109 (State Vs Surender & Ors.) 4.17 PW18 Sh. Satish Kumar, Ld. MM proved the statement of witnesses Nivedita, Surya Pratap and Sidharth recorded u/S 164 Cr.PC. 4.18 PW19 SI Mahesh Kumar proved the scaled siteplan as Ex.PW19/A. SI Mahesh Kumar was cross examined in detail regarding the place from where alleged recovery was effected. He stated that the distance between the spot of the offence and from where the weapon of offence was recovered as around 18 meters. He also admitted that as per siteplan, there was a plot between the place from where the dead body was recovered and weapon of offence was recovered and construction was going on the same plot. He only remembered that construction was only up to the first floor. The house from where the dead body was recovered and the house from where the weapon of offence was recovered, both were single storeyed house. The defence has produced certain photographs Mark AD1 to AD4. However, the witness was not able to tell that if the photographs are of the house from where the body was recovered or the weapon was recovered.
4.19 PW20 Inspt. Sunil Kumar, IO formally proved the case of the prosecution. He stated that the dead body was apparently having injury Page 28 of 60 SC No.8109 (State Vs Surender & Ors.) marks which were looking like to be inflicted by any sharp weapon. Since no eye witness was present, the endorsement was made on DD No. 12A only. IO stated that accused Surinder took them to the roof of the adjoining house from where he got recovered one sword. IO also deposed regarding the earlier kalendra made against accused Lakhpati Devi and Narender Singh for the offence u/S 107/150 Cr.PC. The IO proved the FSL report as Ex.PW20/C and PW20/C1. IO was cross examined in detail by Sh. Ramesh Gupta, Sr. Adv. alongwith Ms. M. Begum, Adv for accused Surinder. During the cross examination, IO admitted that he had met the children and had also verbally questioned them before the rukka was sent but they were not formally examined as they were not in a fit state of mind. He denied the suggestion that he had recorded the false statement of children u/S 161 Cr.PC and subsequently, he coerced them to make a false statement u/S 164 Cr.PC. IO specifically stated that he reached on the spot at 8:30am and accused Surinder was present there. The defence put a suggestion that Surinder was not present in the house and he was called from his farm house. IO also denied the suggestion that sword Ex.P1 was found lying at the spot where dead body was found and he created a false story regarding the recovery of the same from the adjacent house. During the detailed cross examination on behalf of accused Lakhpati Devi and Narender, primarily regarding the recovery of weapon of offence. IO Page 29 of 60 SC No.8109 (State Vs Surender & Ors.) stated that the height of the roof of the house from where sword was recovered was almost similar to the height of the roof of the house of accused persons. He admitted that photograph Ex.PW16/A1 is of the place of recovery of sword.
4.20 PW21 SI Sanjeev Mandal only proved the search memo and arrest memo and disclosure made by accused Narender. 5.0 Accused Surinder Singh in his statement u/S 313 Cr.PC denied all the allegations. He denied his presence on the spot at the time of incident. Accused stated that nothing was recovered in his presence. He was at Gurgaon and was called by the police and was falsely implicated. Accused stated that infact there were two houses. He himself, his wife and children were residing in H.No. 88 and coaccused Narender and Lakhpati Devi used to reside in another portion of the same house. Accused stated that it is a false case and has been wrongly implicated on account of enmity with the relatives and malafide of the police. Page 30 of 60
SC No.8109 (State Vs Surender & Ors.) 5.1 Accused Narender Singh in his statement u/S 313 Cr.PC stated that he was not preset at all at the time of incident. Accused Narender took the defence that he was living separately alongwith his mother in another portion of the house and he was not in Delhi for around 45 months prior to the incident.
5.2 Accused Lakhpati Devi in her statement u/S 313 Cr.PC admitted that police came to their house. She also admitted her presence alongwith children in the house in another room. She stated that Surinder was at farm house and Narender was not there. She stated that dead body of Urmila was recovered. Lakhpati Devi stated that the room where the children were found was already open and the children were normal and she stated that the children were misguided by the police and she did not make any disclosure statement and she was made to sign on some blank papers in the Police Station. Accused stated that deceased did not used to keep the children and children used to reside with her only. 6.0 Accused persons examined DW1 Rajbir in defence. He is the neighbour of the accused persons. He stated that when he reached, police had already gone inside the house and nobody was allowed to go Page 31 of 60 SC No.8109 (State Vs Surender & Ors.) inside. Rajbir stated that Surinder had also gone inside the house after sometime and after 1011am police official had taken Surinder and his mother Lakhpati Devi from there. He stated that no recovery was effected at the instance of accused persons. In the cross examination by Ld. Addl. PP Rajbir admitted that at the relevant time accused persons were living in the same house.
7.0 Sh. Ramesh Gupta, Sr. Adv / Ld. Counsel for accused Surinder submitted that prosecution has miserably failed to prove its case against the accused. Three children who were cited by the prosecution as eye witnesses turned hostile and did not support the case of the prosecution. All the three eye witnesses i.e PW2 Nivedita, PW3 Surya Pratap and PW7 Sidharth though have not supported the case of the prosecution but have specifically stated that their father was not present at the time of offence. The prosecution has not placed any evidence on record that with whom the deceased was last seen. The FSL report also does not attribute anything against the accused persons. Ld. Senior Counsel submitted that PW5 Dilbagh and PW6 Ram Karan whom the prosecution has examined for the bitter relation between the accused and the victim also turned hostile and did not support the case of the prosecution. Sh. Page 32 of 60
SC No.8109 (State Vs Surender & Ors.) Ramesh Gupta, Ld. Senior Counsel highlighted that PW8 Dr. GA Sunil Kumar who had given the subsequent opinion has only submitted that the injuries could have been caused from the weapon recovered at the instance of the accused persons and thus, there is no conclusive evidence regarding the fact that the injuries found on the body of the deceased were inflicted with the weapon recovered at the instance of the accused. Ld. Defence counsel submitted that there are number of contradictions in the story of the prosecution which makes the case of the prosecution highly doubtful.
Sh. Ramesh Gupta,Ld Senior Counsel highlighted the testimony of Ct. Gangaram who has specifically stated in examination in chief that one sword was lying there. It is submitted that this is in total contradiction to the case of the prosecution which has presented this case in the manner that the sword was recovered from the roof of the adjoining house at the instance of accused Surinder. Another contradiction which appeared in the testimony of prosecution case is that IO in his testimony stated that he arrested accused Surinder at 11:30am whereas, as per arrest memo Ex.PW9/A accused Surinder was arrested at 2:30pm. The recovery of sword is highly doubtful. Prosecution has also not led any independent witness to prove that the blood stained clothes recovered at the instance of accused persons actually belonged to the accused persons or they were wearing the same at the time of incident. In support of his contention, Ld. Page 33 of 60 SC No.8109 (State Vs Surender & Ors.) Counsel has cited Mahesh Chand Vs. State of Delhi Crl. Appeal No. 160/2001 dated 18.08.2009. In Mahesh Chand Vs. State of Delhi, the conviction was recorded by the Ld. Trial Court primarily on the basis of the fact that blood stains found on the clothes of the accused matched to the blood group of the deceased. Accused got recovered a knife. The blood stains on the knife matched with that of the deceased. A pair of shoes belonging to the deceased was also got recovered at the instance of accused. Accused had pointed out the place where the deadbody was thrown and the place where the murder was committed. The cot recovered at the instance of accused had also stains of blood which matched to the blood group of the deceased. On the basis of circumstantial evidence, accused was convicted for the offence u/S 302 IPC. Hon'ble High Court after taking into account the entire facts and circumstances held that there was no evidence to prove that the shirt and pant allegedly recovered at the instance of the appellant belonged to him. The circumstance regarding pointing out of place of incident and place of recovery of dead body was also held inadmissible. In respect of shoes of the deceased recovered at the instance of accused, it was held that there was no evidence that the same belonged to the deceased. Hon'ble High Court held that in a case of circumstantial evidence the chain of circumstance found incriminating should be complete where the rational mind unhesitatingly reach to the Page 34 of 60 SC No.8109 (State Vs Surender & Ors.) conclusion that the accused is guilty and the possibility of him being innocent is ruled out. Hon'ble High Court relying upon Mani vs. State of Tamil Nadu, JT 2008 (1) SC 191 held that in a serious case like murder, discovery of common object is the weak kind of evidence. Similarly, the circumstance of recovery of blood stained shirt and dhoti from the person of an accused and dharias from the house of the accused are wholly insufficient to sustain the charge of murder against the accused. Reliance was placed on Narsinbhai Haribhai Prajapti V. Chhatrasinh & Ors. AIR 1977 SC 1753.
Ld. Counsel submitted that simply because the blood stained clothes were recovered at the instance of accused persons or there is a recovery of weapon at the instance of accused persons, it is not sufficient to record the conviction against him.
7.1 Sh. Pankaj Kumar, Ld. Counsel for accused Lakhpati Devi and Narender Singh also argued in detail that as per DD No. 12A which was received at 8:10am the crime team was informed from the PS itself whereas, as per crime team report Ex.PW1/A the inspection was conducted between 11:45 am to 1pm. Ld. Counsel submitted that prosecution has miserably failed to prove the motive on the part of the Page 35 of 60 SC No.8109 (State Vs Surender & Ors.) accused persons. The case of the prosecution is that the deceased was murdered as the accused persons wanted to sell the property and the deceased was not consenting to it. Accused Narender is an unmarried person. He has no interest in the property and therefore, no motive can be attributed to him. Ld. Counsel pointed out to the testimony of Nivedita who stated that infact quarrel had taken place on the point of a bed sheet. It was submitted that therefore, accused Narender was not at all a party to the said quarrel. Sh. Pankaj Kumar, Ld. Counsel has submitted that all the witnesses PW2 Nivedita, PW3 Surya Pratap, PW8 Sidharth have turned hostile. The Court cannot rely upon the statements recorded u/S 164 Cr.PC. It has been pointed out that there is a contradiction as to the arrival of the crime team. As per testimony of Lady Constable Jai Lakshmi (PW11), the crime team reached after Lady Ct. Jai Lakshmi, SHO and Addl. SHO reached the spot whereas Incharge Crime team has stated that when reached at the spot only 34 police officials were present. Sh. Pankaj Kumar, Ld. Counsel argued at length over the recovery of sword. He submitted that the case of the prosecution is absolutely self contradictory on the point of recovery of sword. It is argued that the case of the prosecution is totally false and frivolous and is liable to be rejected. Page 36 of 60
SC No.8109 (State Vs Surender & Ors.) 7.2 Sh. MZ Khan, Ld. Addl. PP for State submitted that prosecution has successfully proved its case against the accused persons beyond reasonable doubt. The children turned hostile for the obvious reason. It is handiwork of the accused persons that they compelled the children to turn hostile. Similarly, PW5 Dilbagh & PW6 Ram Karan who were close relatives of the deceased also turned hostile for the obvious reasons. Ld. Addl. PP submitted that the deceased who was wife of one of the accused Surinder was found dead in the matrimonial house and this matrimonial house was shared by all the accused persons with the deceased and the children. It was for the accused persons to explain that how and in what circumstances, the deceased was murdered. Since the accused persons have failed to give any explanation regarding the same, they are liable to be convicted.
8.0 I have considered the submissions of both the Ld. Counsels for the accused persons and Ld. Addl. PP for State and have perused the record carefully.
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SC No.8109 (State Vs Surender & Ors.) 9.0 It is a very very unfortunate case where a young lady of 32 years of age, mother of three small children was brutally done to death and her deadbody was concealed in the bed box. Certain facts are not disputed:
5. The dead body was recovered from the matrimonial home of the deceased.
6. The deceased had multiple injuries including the stab wounds at chest.
7. Accused Lakhpati i.e., mother in law of the deceased was present on the spot.
8. PW2, PW3 and PW7, the children of the deceased were also found available on the spot when the police reached there.
9.1 The defence has disputed the case of the prosecution on the following grounds:
1. Accused Surinder was not present neither at the time of the incident nor at the time when police reached there;
2. Accused Narender was unmarried and he used to remain out of the house for months altogether and he was also not present at the Page 38 of 60 SC No.8109 (State Vs Surender & Ors.) time of incident. It is pertinent to mention here that as per the case of the prosecution, accused Narender was not found at the time when the police reached. He was arrested only on 18/2/08;
3. that the children were not found in a locked room; and,
4. the weapon of offence was not recovered at the instance of accused Surender.
9.3 The case of the prosecution in brief is that the deceased was brutally murdered by the accused persons as she was not falling into the line of accused persons, in respect of H. No.88, Humayunpur Village, in furtherance of common intention in the presence of the three children i.e., PW2 Nivedita, PW3 Surya Pratap and PW7 Sidharth. It is not the case of the defence that there was any incident of intrusion by an outsider. It is also not the case of the defence that some other incident had taken place in the house in which the deceased was murdered by somebody else. The recovery of dead body from the bed box in the house of the accused persons is not disputed. Therefore, if the accused persons were residing alongwith the deceased in H. No.88, Humayunpur, Delhi, from where the dead body was recovered then it was for the accused persons to explain that how and in what circumstance, deceased Urmila Devi was found dead. Page 39 of 60
SC No.8109 (State Vs Surender & Ors.) It is pertinent to mention here that when the police reached on the spot, the body was emanating foul smell. It is pertinent to mention here that dead body was recovered on 17/10/07 and the postmortem was conducted on 18/10/07 and time since death was about 23 days. The Court is conscious of the fact that time since death given in the postmortem report is only an opinion and it is not a conclusive proof. However, unless and untill rebutted otherwise, this opinion is a relevant circumstance in forming the opinion by the Court. Therefore, the dead body which was found on 17/10/07 was certainly lying there for the last 1 or 2 days. The accused persons were living in the said house with the dead body lying therein. The fact that they did not make any report to the police indicate towards their culpability.
In respect of the fact that the accused persons were living alongwith the deceased in the same house, PW2 Nivedita and PW3 Surya Pratap, made a consistent and corroborative statement on oath. The Court while appreciating the evidence in such like manner is required to separate the grain from chaff. The Court is required to take a pragmatic view. If we see the testimony of PW2 Nivedita and PW3 Surya Pratap, both the witnesses have specifically stated that the house was shared by the accused persons and the deceased alongwith them. The accused persons despite being in jail seems to have been able to influence the children to depose in Page 40 of 60 SC No.8109 (State Vs Surender & Ors.) the Court in such a manner so as to make an escape route for accused Surinder. It is pertinent to mention here that the defence seems to have proceeded in a very calculative manner since beginning. Accused Narender was not found on the spot. He absconded for months and the defence was taken that he was unmarried and used to remain away for long intervals and when the children appeared in the witness box, they deposed in the manner so as to exclude their father. An attempt has been made to hijack the entire proceedings. The fact that these witnesses turned hostile alongwith PW5 Dilbagh and PW6 Ram Karan i.e close relatives of the deceased also indicates the fact that the witnesses were won over by the accused persons. The Court cannot allow the mischievous element to frustrate the object of criminal Justice Delivery System. 9.4 Here it is also worthwhile to note that it is a settled proposition that the testimony of a hostile witness can not be rejected all together. The law regarding this is very well settled. In State of Gujarat Vs. Anirudhsing, (1997) 6 SCC 514, it was observed that:
"Every criminal trial is a voyage in quest of truth for public justice to punish the guilty and restore peace, stability and order in the society. Every citizen who has knowledge of the commission of Page 41 of 60 SC No.8109 (State Vs Surender & Ors.) cognizable offence has a duty to lay information before the police and cooperate with the investigating officer. Who is enjoined to collect the evidence and if necessary summon the witnesses to give evidence. He is further enjoined to adopt scientific and all fair means to unearth the real offender, lay the chargesheet before the Court competent to take cognizance of the offence. The chargesheet needs to contain the facts constituting the offence/s charged. The accused is entitled to a fair trial. Every citizen who assists the investigation is further duty bound to appear before the Court of Session or competent criminal court, tender his ocular evidence as a dutiful and truthful citizen to unfold the prosecution case as given in his statement. Any betrayal in that behalf is a step to destabilise social peace, order and progress."
9.5 In Radha Mohan Singh @ Lal Saheb & Ors. Vs. State of UP., (2006) 2 SCC 450, the Hon'ble Supreme Court held as under:
".... it is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version Page 42 of 60 SC No.8109 (State Vs Surender & Ors.) is found to be dependable on a careful scrutiny thereof...."
9.6 This Court is privileged to cite Paramjit Singh @ Pamma Vs. State of Uttarakhand, 2010 X AD (SC) 153. In this case, in a case of triple murder, three witnesses who were examined as witnesses had also got serious injuries. Prosecution had cited five witnesses. However, all the five eye witnesses turned hostile. Hon'ble Supreme Court while appreciating the evidence in this case held that in a criminal trial involving a serious offence of a brutal nature, the court should be wary of the fact that it is human instinct to react adversely to the commission of the offence and make an effort to see that such an instinctive reaction does not prejudice the accused in any way. Hon'ble Supreme Court reiterated that golden principle that the Court is bound to ensure that the prosecution has proved its case beyond reasonable doubt. It was reemphasised that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. In this case the Ld. Trial Court took a view that all the witnesses turned hostile because of the decision taken in the panchayat. Hon'ble Supreme Court inter alia held that the said eye witnesses who turned hostile had no regard for the truth and concealed the material facts from the court only in order to protect the Page 43 of 60 SC No.8109 (State Vs Surender & Ors.) appellant, for the reasons best known to them. It is a privilege to quote the observation of the Hon'ble Supreme Court that "such an unwarranted attitude on the part of the witnesses disentitles any benefit to the appellant, who has committed a heinous crime. The crime has been committed against the society/ State and not only against the family and therefore, the pardon accorded by the family and Panchayat has not significance in such a heinous crime."
The Hon'ble Supreme Court upheld the order of conviction and dismissed the appeal.
9.7 The present case is different from the above one, in the manner that in that case the witnesses turned hostile possibly for the reason that it was a property dispute and some understanding was entered into between the parties at some panchayat. But the present case is a chilling instance wherein the innocent children have been won over by the accused persons only in order to frustrate the justice delivery system. It is pertinent to mention here that these children in their statement u/S 164 Cr.PC before the Ld. MM specifically and consistently stated that these were the accused persons who had committed the murder of their mother. The statements recorded u/S 164 Cr.PC have corroborative value. It is not Page 44 of 60 SC No.8109 (State Vs Surender & Ors.) difficult to understand that why these innocent children turned hostile. The trend of witnesses turning hostile is increasing day by day. There are many reasons for it. This Court will not enter into the detailed discussion on the subject that why the witnesses turn hostile and what steps including, amendment in the Law, are required to be taken to deal with the situation. However, I consider that the Court while appreciating the evidence of a hostile witness must try to find out the reasons for turning hostile and then evaluate the case as per the settled principles of appreciation of evidence. Even if we appreciate the case of the prosecution independent of these three witnesses, the police officials PW12 ASI Surender Kumar, HC Rattan Lal PW13 and PW9 Lady Ct. Gangaram were the first to reach on the spot. All of them have made a consistent and corroborative statement on oath that when they entered House No. 88, Humayunpur, accused Lakhpati Devi and Surinder were present and a diwan was lying inside the room from which foul smell was coming. Accused Surinder and Lakhpati Devi were in confusion, scared condition. From the diwan, deadbody of Urmila Devi w/o Surinder was recovered. The dead body was having apparent marks of injury. All the three witnesses also stated that a room was locked and on being asked, accused Lakhpati Devi opened the room in which three children were found and all of them stated that their mother Urmila Devi has been murdered by their father Surinder, grandmother Page 45 of 60 SC No.8109 (State Vs Surender & Ors.) Lakhpati and tau Narender. The witnesses also stated that these children were in a state of shock and scared condition. The defence has disputed the presence of accused Surinder on the spot. However, presence of accused Surinder on the spot at the time when police reached has been proved consistently by the prosecution. The factum of the presence of Surinder has been proved besides these three witnesses by Lady Ct. Jai Lakshmi PW11 and IO Inspt, Sunil Kumar (PW20). It is pertinent to mention here that Crime Team Report Ex.PW1/A also shows the presence of accused Surender on the spot. The defence taken by the accused persons that the accused was called lateron is not at all reliable and believable. The defence has also relied upon heavily regarding the contradictions in respect of the recovery of the sword at the instance of accused Surinder. Both the Ld. Defence counsels have pointed out towards the testimony of prosecution witnesses in this regard.
I consider that the defence has tried to create a confusion regarding the mode and manner of the recovery of sword. The consistent case of the prosecution is that sword was recovered at the instance of accused Surender from the house adjoining to the house of the accused persons. It is a settled proposition that the case of the prosecution is to be read in totality. As per the case of the prosecution, H. No. 88, Humayunpur Village, was divided into two portions. Half of the portion Page 46 of 60 SC No.8109 (State Vs Surender & Ors.) was given to the builder and remaining half portion was in the occupation of the accused persons and the deceased. The sword was recovered from the house which was adjacent to the portion in which the builder was raising the construction. In this regard, the scaled siteplan Ex. PW19/A is relevant. This siteplan indicates that there is a plot between the house from where the dead body was recovered and the house from where the sword was recovered. This plot is only half portion of H.No.88 and on the same, construction was being carried out at the relevant time.
The defence has placed certain photographs on the record. It is pertinent to mention here that these photographs are indicating the position as to now. There may be possibility that now the constructions have been raised. Therefore, it cannot be presumed that the building were in the same condition at the time of commission of the offence as it is now shown in the photographs. Even if we peruse the photographs filed by the defence, it supports the case of prosecution. In one of the photographs filed by the defence, which can be identified as Mark 'X', there is a multi storey building between the house of the accused and another house. This another house is a single storey house. The case of the prosecution is also that the house from where sword was recovered, was of equal height to that height of accused person's house. Possibility cannot be ruled out that Page 47 of 60 SC No.8109 (State Vs Surender & Ors.) the multistorey house seen in Mark 'X' was not fully constructed at the relevant time.
Ld. defence counsel has heavily relied upon the testimony of PW9 Ct. Gangaram who has stated that when they reached on the spot the sword was lying there. Again the principle of appreciation of evidence that the entire evidence has to be read in whole. The defence cannot be read in piece meal manner. The effect of the evidence has to be seen in the totality. I consider that there is no inconsistency regarding the recovery of the sword.
9.8 In the present case, it has been argued that in the story of the prosecution, there are many gaps and holes which has created a doubt in the story of the prosecution and thus, the accused persons are liable to be acquitted. The proposition of reasonable doubt came up for discussion before the Apex Court in Shivaji Sahebrao Bobade Vs. State of Maharashtra, AIR 1973 SC 2622, wherein, while discussing about the theory of benefit of doubt, the Apex court inter alia held as under :
"Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit Page 48 of 60 SC No.8109 (State Vs Surender & Ors.) of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The Cherished principles or golden thread of proof beyond reasonable doubt which runs tro: the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person lightheartedly as a learned author* has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a, public demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent ..." In short our jurisprudential enthusiasm for presumed innocence must be moderated by the Page 49 of 60 SC No.8109 (State Vs Surender & Ors.) pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents."
The court is required to have a helicopter view of the entire case and is required to judge the material on the record with a quest for justice. The trial cannot be allowed to be a mere battle of wits and the judge cannot be a mute spectator. The judge has to appreciate the evidence in it's totality and the final summit should only be the justice.
Both the Ld. Counsels argued at length regarding recovery of the sword but they did not offer any explanation that how and in what manner Urmila Devi was murdered in the house where they were residing. The contention taken by the defence that accused Narender used to remain outside for months also seems to be an after thought having no credibility. The fact that the deceased was found dead in her matrimonial house which was shared by her husband and her in laws, it was for the accused persons to explain that how and in what manner Urmila was murdered in a gruesome manner.
Page 50 of 60
SC No.8109 (State Vs Surender & Ors.) 9.9 Section 106 of The Indian Evidence Act is very categorical about it. It reads as under:
"106. Burden of proving fact especially within knowledge - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
If a person is in the special knowledge of certain facts then he or she is required to tell the same and if that person does not disclose those special facts within his knowledge, an inference can be drawn against him.
If an accused is alleged to have committed the murder of his wife and the prosecution leads cogent and creditworthy evidence that the offence took place in the dwelling home where the husband also normally resided, then it's for the husband to offer an explanation that how the wife received injuries or if offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. This principle shall be squarely applicable to all the inmates of the house, if the prosecution evidence is prima facie indicating involvement of all such persons. Reference can be made to Swamy Sharaddhananda Vs. State of Karnataka AIR 2007, Raj Kumar Prasad Tamarkar v. State of Bihar and Anr. 2007 (1) SCALE 19 : JT 2007 (1) SC 239 and Nika Ram v. The State of Himachal Pradesh, AIR 1972 SC 2077.
In Trimukh Maroti Kirkan v. State of Maharashtra JT 2006 (9) SC 50, the law is stated in the following terms:
Page 51 of 60
SC No.8109 (State Vs Surender & Ors.) "It is in the evidence of Girju PW that only the accused and Churi deceased resided in the house of the accused. To similar effect are the statements of Mani Ram (PW 8), who is the uncle of the accused, and Bhagat Ram school teacher (PW 16). According to Bhagat Ram, he saw the accused and the deceased together at their house on the day of occurrence. Mani Ram (PW 8) saw the accused at his house at 3 p.m., while Poshu Ram, (PW 7) saw the accused and the deceased at their house on the evening of the day of occurrence. The accused also does not deny that he was with the deceased at his house on the day of occurrence. The house of the accused, according to plan PM, consists of one residential room one other small room and a varandah. The correctness of that plan is proved by A. R. Verma overseer (PW 5). The fact that the accused alone was with Churi deceased in the house when she was murdered there with the Khokhri and the fact that the relations of the accused with the deceased, as would be shown hereafter, were strained would, in the absence of any cogent explanation by him, point to his guilt."
9.10 Section 106 Indian Evidence Act is unambiguous and categoric in laying down that when any fact is within the special knowledge of a person, the burden of proving that fact is always upon that person. If the person is last seen with the deceased, he or she must offer an Page 52 of 60 SC No.8109 (State Vs Surender & Ors.) explanation as to how and when they parted company. Thus, if we take into account the testimony PW2 Nivedita and PW3 Surya Pratap, both have made a categorical statement that their mother i.e. deceased was available in the house at the night when she was killed. The children have tried to exclude their father for the obvious reasons but if we take wholesome view of the evidence of PW2 and PW3, it unerringly indicate that all the three accused persons were sharing the same house with the deceased. Thus, this was for the accused persons to offer an explanation as to how the deceased met to such a brutal death. The accused persons have failed to offer an explanation which were within their special knowledge and they failed to discharge the burden cast upon them by Sec. 106 Indian Evidence Act. Non furnishing of such an explanation is also an additional link in the chain of circumstances proved against them. It is pertinent to mention here that Sec. 106 Evidence Act does not shift the burden of proof in a criminal trial. It is always upon the prosecution. The only rule laid down in Sec. 106 Evidence Act is that if accused does not throw the light on the facts which are within his special knowledge and which could not support any theory or hypothesis compatible with his or her innocence, the Court can consider such failure to adduce any explanation, as an additional link which completes the chain.Page 53 of 60
SC No.8109 (State Vs Surender & Ors.) 9.11 The theory behind Sec. 106 Indian Evidence Act is that the duty of the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. If any fact is specially within the knowledge of any person, the burden of proving that fact is always upon him.
10.0 The defence kept on arguing the matters regarding contradiction in recovery of sword at the instance of accused persons, the evidentiary value of the clothes recovered at the instance of accused persons, but did not utter a single word that how and in what circumstances, the lady was killed. The dead body of the lady was found in their house in a bed box.
10.1 With regard to the discrepancies and improvements made by the witnesses, it is settled proposition that irrelevant details which do not in any way corrode the credibility of a witness cannot be levelled as omissions or contradictions. Reference can be made to State of Rajasthan Vs. Om Prakash, AIR 2007 SC 2257.
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SC No.8109 (State Vs Surender & Ors.) In State of Himachal Pradesh Vs. Lekh Raj, 1999 (9) Supreme Today 155, it was inter alia held as under :
"There is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eyewitnesses unbelievable."
In Ousu Varghese v. State of Kerala, (1974) 3 SCC 767 it has been held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Jagdish v. State of Madhya Pradesh, 1981 SCC (Cri) 676, it was held that when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. In State of Rajasthan v. Kalki , (1981) 2 SCC 752 : (AIR 1981 SC 1390 :
1981 Cri LJ 1012) it was held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be.Page 55 of 60
SC No.8109 (State Vs Surender & Ors.) Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
I have no hesitation in saying that as far as recovery of blood stained clothes belonging to the accused persons is concerned, that has no bearing because the prosecution has not led any independent evidence to prove that the accused persons were wearing these clothes at the time of the incident. The murder was committed in the same house has also been proved from the fact that blood stained cot has been recovered from there.
The recovery of blood stained cot has not been disputed by the accused persons. PW12 ASI Surender and other prosecution witnesses have made a consistent and specific statement on oath in this regard. This, was a gruesome murder of a helpless lady by the accused persons.
10.2 If we take into account the entire cogent and creditworthy evidence on record, following facts have been duly proved beyond reasonable doubt:
1) The accused persons and deceased were living in H.No. 88, Humayunpur Village, Delhi;
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SC No.8109 (State Vs Surender & Ors.)
2) The children PW2 Nivedita, PW3 Surya Pratap and PW7 Sidharth were also residing in the same house;
3) The deceased and accused persons were not having cordial relations and there used to be some dispute over the property;
4) the deadbody of the deceased Urmila Devi was recovered from the bed box in H. No. 88,Humayunpur Village, Delhi with multiple injuries on the body;
5) The death had taken place around a day before, when the dead body was recovered;
6) the deadbody was having as many as 14 injuries including 6 injuries with a sharp weapon and the death has taken place on account of the injuries as well as strangulation and smothering; and,
7) the accused persons have failed to offer any explanation that how and in what circumstances the deceased had died.
10.3 If the offence takes place inside the four walls of a house and the assailants had all the opportunity to plan and commit the offence at the time and in the circumstance of their choice, it may be very difficult to get the evidence. In the present case, the investigating agency found three Page 57 of 60 SC No.8109 (State Vs Surender & Ors.) minor children of the deceased locked in a room and they made a consistent statement u/S 161 and 164 Cr.PC indicating towards the culpability of the offenders but when they came to depose before the Court, they did not fully support the case of the prosecution. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides over to see that a guilty man does not escape. Both are public duties. The Apex Court has laid down time and again that a judge cannot be a mute spectator. The trial is not a mere battle of wits. It is not conducted with a view to see who has won over the points. The ultimate quest of a criminal trial is to impart justice. 10.4 The accused and the deceased were inmates of the same house. The prosecution by way of clinching evidence has proved that the dead body of deceased was found in the same house and the accused persons have failed to give any explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premises that the burden to establish its case lies entirely on the prosecution and there is no duty on the accused to offer any explanation. It is also pertinent to mention here that PW9 Ct. Gangaram, PW12 ASI Surender, PW13 HC Rattan and Page 58 of 60 SC No.8109 (State Vs Surender & Ors.) PW20 Inpst Sunil Kumar have made a consistent and corroborative statement on oath that accused persons were in shock and scared condition. The conduct of the accused persons keeping the dead body in their house for a considerable period is also an indicator towards their complicity in the crime. It is also pertinent to mention here that it is not a big house. It is a small house only in 50 sq yards. Therefore, it is not the case where the inmates of a house may not be aware of a dead body lying in any portion of the house.
10.5 The postmortem report indicates that its not handiwork of an individual. The defence admits presence of only one person. The antemortem injuries found on the dead body cannot be inflicted by a single person. The cause of death was opined as combined effect of asphyxia produced by smothering and manual strangulation and stab injury over the chest. The deceased was a well built lady with height of 5'4". This barbaric murder could not have been done by an individual or even two persons. It is worthwhile to mention here that it's in small house in which besides accused persons and deceased, there were three children. The dead body was having 14 multiple injuries and there is also an opinion about strangulation and smothering. Thus, the deceased must have been fully overpowered before committing the murder.
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SC No.8109 (State Vs Surender & Ors.) The accused persons have taken a false plea regarding presence of only Lakhpati, which is also a circumstance against them. There does not seem to be any sudden provocation. It was a premeditated action. The motive is also proved by the earlier kalendra. The statement u/S 164 Cr.PC of the children was recorded by Ld. MM and he has not been cross examined at all as to voluntary nature of the statement. 11.0 In view of the entire facts and circumstances, I consider that prosecution has successfully proved its case beyond any reasonable doubt against the accused persons. Hence, accused Surender Singh, Lakhpati Devi and Narender Singh are convicted for the offences u/Ss 302/201/34 IPC in case FIR No. 534/07 PS Sarojini Nagar. Announced in the open court (Dinesh Kumar Sharma) Today on 09.05.2011 ASJ02(South)/Saket Courts New Delhi / 09.05.2011 Page 60 of 60