Delhi District Court
State vs Smt Indu Devi on 21 July, 2009
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE01SOUTH
PATIALA HOUSE COURTNEW DELHI
Sessions Case No : 219/06
State vs Smt Indu Devi
W/o Late Sh Kishore Kumar
R/o Village Chhitauli, Post Parasrampur
P.S. Maujhagarh, Gopal Ganj, Bihar
FIR No. 445/06
PS : Mehrauli
U/S 302 IPC
Date of Institution : 06.11.06
Date when arguments
were heard : 03.07.09 and 07.07.09
Date of judgment : 16/07/09
JUDGMENT
The SHO Police Station Mehrauli has challaned the accused to face trial for the offence under Section 302 IPC. Learned Metropolitan Magistrate after supplying of copies and documents to the accused and complying with the provisions of section 207 Cr.P.C has committed the case to the court of Sessions as provided in section 209 Cr.P.C. BRIEF FACTS:
The prosecution case, in brief, is that DD No. 34 dated 29.06.06 Police Station, Mehrauli was received in police post I.G.N.O.U. in which intimation regarding the death of the tenant and the fact that blood was lying at the spot in house no. 356 was given by wireless message. Sub Inspector Jatan Singh along with Head Constable Virender Kumar went for investigation to the house of Om Prakash at village Rajpur Khurd, Delhi, where he found ASI Ram Bhaj and Constable Mahesh and Constable Rajkumar already present there. At the spot in house no. 356 in one room at the floor one person aged about 2526 years was lying inverted on the floor in the blood with injuries on his left side of the neck with some sharp edged weapon. The victim was only wearing underwear and one towel was lying there with blood in it. On inquiry the police came to know that deceased Kishore used to reside there along with his wife Indu Devi and one three years daughter as tenant in the house of Om Prakash and was working with M/s Amar Time & Sound as television mechanic. The accused wife of the deceased was unable to tell anything due to mental shock. There was no eye witness except accused Indu Devi. During the investigation the spot was photographed and the exhibits were collected and dead body was sent to AIIMS Mortuary. Site plan was prepared. Statement of the witnesses were recorded. The dead body was handed over to the relatives of the deceased after getting conducted postmortem. Initially the wife of the deceased Indu Devi did not tell about the murder. But on persistent inquiry she admitted her guilt and gave disclosure statement. She also informed that deceased and she were in love with each other and for the purpose of marriage they ran away from their parental house to Gujarat where they got married. Since Indu Devi was minor her parents got registered a case and Bihar police arrested them and the victim was sent to Jail and accused Indu Devi went to her parents house. Thereafter Indu Devi was got married with some one else. When victim Kishore was released from Jail, accused Indu Devi came to her parents house and they again ran away to Nagpur where they lived together for two years. Thereafter they returned to the village and victim Kishore came in Mehrauli, Delhi and Indu Devi also joined him in Delhi. Here, in Delhi, they used to quarrel with each other and victim used to insult her and did not use to give money for domestic expenses. He was also having relations with other women and left the accused Indu in her village. Since the parents of the deceased used to misbehave with accused she returned along with her daughter to Delhi. But accused used to misbehave with her, so she purchased a gandasa for a consideration of Rs. 70/ and without telling victim Kishore she came in Delhi with her brother Mukesh and started residing with victim.
On 28.06.06 in the night accused gave 23 gandasa blows on the neck of the victim causing his death. There were blood stains on the clothes, walls and other items lying in the room. After receipt of postmortem report and after completion of the investigation, the accused was challaned, as referred before.
CHARGE AND PLEA OF THE ACCUSED The charge for the offence punishable under Section 302 IPC was framed against the accused on 06.12.06 to which she pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE In support of its case prosecution has examined, in all, twenty witnesses. PW1 Sh. Om Parkash, was the landlord of the deceased Kishore and has stated that accused Indu Devi along with deceased Kishore and their daughter was staying in his room for the last six months from the date of incident. On 29.06.06 at about 4.15/4.30 AM, accused came to his house and told him that somebody had killed her husband. He telephoned the police at number 100 and police came at the spot and recorded his statement.
PW2 Sh. Hari Ram is also tenant of PW1 Shri Om Parkash in another room and has stated that there are four rooms. He further stated that he saw dead body of the husband of the accused lying in the room from a distance. After some time police reached there and removed the dead body. An altercation ( Tu Tu Mein Mein) used to take place between accused and deceased.
PW3 is Head Constable Gajender Singh who was posted as Duty Officer at Police Station Mehrauli on 29.06.06. He proved the copy of the F.I.R. Ex PW3/A. PW4 is Smt Neelam who has stated that on 28.06.06 in the morning at about 4.30 a.m. she and her husband heard the sound of weeping and they woke up. They came outside. Many public persons from the locality had gathered there. Accused Indu Devi was weeping. PW4 inquired from her as to why she was weeping. She was crying in her own language 'katli' 'katli'. She peeped into the room. Dead body of the husband of the accused was lying in the room. Landlord came there. He made telephone call to the police. She also stated that accused used to complain occasionally as deceased was not paying her expenses for running the house. She resiled from part of the statement given by her to the police and was cross examined by the learned Additional Public Prosecutor in which she has admitted the facts stated in statement recorded under Section 161 CrPC.
PW5 Dinesh has stated that at about 4/4.30 am they heard the crying sound and they came out of the room and saw accused was weeping.. PW5 stated that he inquired from accused as to why she was weeping. Accused was sitting on front gate of her room. When PW5 peeped inside, he saw dead body of the husband of the accused. His wife gave water to the accused. He also stated that he did not know as to what were the relations between the accused and deceased and volunteered the accused used to complain occasionally that her husband was not paying expenses for household articles and on that account there used to be an altercation( Tu Tu Main Main) between them.
PW6 Lady Constable Amita has stated, in brief, that on 01.07.06 she was posted in Police Station Mehrauli and on that day she accompanied Inspector C K Sharma and Sub Inspector Jatan Singh to house no. 356, house of Om Parkash, where accused Indu met them. She admitted that she killed her husband in the intervening night of 2829/6/06. Investigating officer arrested the accused and her personal search was conducted vide memo Ex PW6/A, Accused was interrogated and she made disclosure statement Ex PW6/B. As per disclosure statement she took the police party to the back side of the house and got recovered one gandasa and told the investigating officer that she had killed her husband by the same. Investigating officer prepared the sketch of the gandasa vide memo Ex PW6/C, kept the same in pulanda, sealed it with seal of CKS and seized it vide memo Ex PW6/D. She also stated that as per disclosure statement of the accused, she got recovered one blood stained blouse and one petticoat which she was wearing on the day of incident. Investigating officer kept the clothes in pulanda, sealed them with seal of CKS and seized the same vide memo Ex PW6/E. Thereafter accused was taken to AIIMS and after her medical examination she was brought to police station and kept in lady lockup. The witness has identified the gandasa as Ex P1 and petticoat of the accused as Ex P2 and her blouse Ex P3.
PW7 is Constable Dharamender, Police Station Mehrauli. He has stated, in brief, that on 26/09/06, he was posted at Police Station Mehrauli.On that day as per direction of Investigating Officer he took 13 sealed parcels and two sample seals from MHCM Mehrauli vide RC No. 134/21 and deposited them in FSL Rohini. After depositing the same he returned back to Police Station and handed over receipt copy to MHCM. During his possession the seals were not tampered with and were intact.
PW8 is Dr. Arvind Kumar, Senior Resident LNJP Trauma Centre AIIMS who conducted postmortem on the body of the deceased Kishore Kumar. In his statement he detailed the external injuries found by him on the body of the deceased and has proved his postmortem report Ex.PW8/A. He also stated that in his opinion the cause of death in this case is hemorrhagic shock due to fatal cut throat wound(injury no.1 and 3) caused by sharp edged weapon which are independently sufficient to cause death in ordinary course of nature. All injuries were antemortem in nature. Age of injuries were consistent with the time. He also proved his subsequent opinion Ex.PW8/B and has stated that after examining the weapon of offence he was of the considered opinion that all the injuries found on the body of deceased could be possible with that alleged weapon.
PW9 is Ct. Mahesh, No. 2073, South District, Police Station Mehrauli. He has stated that on 29/06/06 he alongwith ASI Rambhaj went to H.No. 356 Rajpur Khurd house of Om Prakash where in the first room of the house a dead body was found lying there. Blood was found lying scattered there. SI Jatin Singh alongwith staff also reached there. On inquiry SI Jatin Singh came to know the name of deceased as Kishore Kumar. SHO Mehrauli along with staff also reached there. Crime team and dog squad was also called at the spot. Thereafter, as per the direction of the IO he took the dead body to AIIMS mortuary. The dead body was preserved for 24 hours. On 01.07.05 the postmortem of the dead body was conducted. After postmortem the doctor handed over to him 3 pulandas along with one sample seal which was seized by the IO vide memo Ex.PW9/A. The dead body was handed over to the relatives.
PW10 is SI Vinod Pal, Mobile Crime Team, South District. He has stated that on 26/06/06 he was posted as SI/Incharge Crime Team South District. On that day as per the request of the IO, he along with his team visited H. No. 356, Rajpur Khurd house of Om Prakash. They went to the first room of the house and found a dead body was lying there in a pool of blood. He inspected the spot and prepared his report Ex.PW10/A which is in his handwriting and signatures.
PW11 is HC Dharambir Singh, No. 1125/PCR. He has brought the summoned record i.e. PCR form recorded by HC Surender Pal, 318/PCR on 29/06/06 at 4.36 AM. As per record the information was received from telephone No. 26303418. He had brought the original PCR form and photocopy of the same is proved as Ex.PW11/A. PW12 is Ct. Shiv Karan 2981, South District PP IGNOU, Police Station, Mehrauli. He had proved the copy of DD No. 34 as Ex.PW12/A. PW13 is Ct. Raj Kumar, No. 3319/SD, PP IGNOU, Police Station Mehrauli. He has stated that on 29/06/06, he was on emergency duty with ASI Ram Bhaj. On receipt of DD No. 34, he alongwith Investigating Officer reached at H.No. 356, House of Om Prakesh. Ct. Mahesh was also with them. SI Jattan Singh and HC Virender were already present at the spot. House owner Om Prakash was present along with four or five neighbours. There were four rooms in the house inside the iron gate. While entering from main gate, in the first room, in left side a dead body of a male aged 25/26 years was lying on the floor. There were injuries on the left side neck of the dead body. It appeared as if someone had attacked him with sharp weapon. The head of dead body was towards gate in western side. There was one towel on which blood stains were there. On the bed sheet, pillow and mat, there were blood stains. The wall was also blood stained. Deceased was wearing only underwear. Thereafter, SHO Police Station Mehrauli SI C K Sharma reached with staff at the spot. He interrogated wife of deceased Indu Devi who was present at the spot. On interrogation name of deceased was revealed as Ashok Kumar who was from Gopalganj, Bihar and was working as TV Mechanic in Mehrauli. Thereafter investigating officer recorded statement and prepared ruqqa and handed over the same to him for registration of the case. He went to Police Station, got the case registered and returned back to spot with copy of FIR and original ruqqa and handed over the same to the Investigating officer. Thereafter all the exhibits i.e. Towel, mat, gamcha etc. were sealed with the seal of JS. Blood stains were collected and kept in plastic bag. Thereafter dead body was sent to AIIMS through Ct. Mahesh. Police party returned to Police Station. Sealed pulandas were deposited in malkhana. He stated that no eye witness was present on the spot. He identified accused Indu who was present on the spot.
PW 14 is Ct. Giridhar, NO. 904/SD Mobile Crime Team, South District. He has stated that on 29.06.06, he was posted as photographer in crime team, South District. On that day as per direction of incharge crime team, he accompanied him to H.NO. 356, Rajpur Khurd, Delhi. They went inside the room and found a dead body lying there. As per the direction of the Investigating Officer and incharge crime team, he took 6 photographs from different angles. Later on he handed over the positives to the investigating officer. He proved the nagatives as Ex.PW14/P1 to P6. Positives were proved as Ex.PW14/P7 to P12.
PW15 is HC Surender Singh, 257 PCR MHCR Record Branch, Mangolpuri. He brought the original form and photocopy of the same proved as Ex.PW15/A. PW16 is Ct. Ashok Kumar, 1269/DAP. He has stated that on 29/06/06 he was posted as Constable at Police Station Mehrauli and was working as motorcycle rider. On that day as per the direction of the Duty Officer, he took copies of FIR from Police Station and handed over to senior officers and local MM of their area. After delivering them he returned back to Police Station and reported the Duty Officer regarding delivery of copies of FIR.
PW17 is Inspector Chander Kant Sharma, SHO Lajpat Nagar who is subsequent investigating officer of the case. He has stated that on 30/06/06 he was posted as SHO Mehrauli. On that day the case file was transferred to him for further investigation. On 01/07/06 the postmortem over the dead body was got conducted and the dead body was handed over to relatives of the deceased. He corroborated with the statement of PW6 and has stated that he interrogated wife of deceased Indu Devi. She admitted her involvement in the crime. He arrested Indu Devi and conducted her personal search Ex.PW6/A. He has also proved disclosure statement of accused Ex.PW6/B and has stated that as per disclosure statement accused took the police team to backside of the house and got recovered a 'Gandasa' and told him that she had killed her husband by the same. He prepared sketch of the gandasa Ex.PW6/C, kept it in a pulanda and the same was sealed with seal of CKS and seized vide memo Ex.PW6/D. She has got recovered that the blood stained clothes which she was wearing at the time of killing her husband. She also handed over to him one blood stained blouse and petticoat which was sealed with the seal of CKS and the same was seized vide memo Ex.PW6/E. He further stated that he recorded the statement of witnesses correctly. He obtained subsequent opinion from the postmortem doctor. The case properties were sent to FSL, he tendered FSL report Ex.PX. After completion of the investigation challan was prepared. He identified the accused Indu Devi and also the case property i.e. Gandasa Ex.P1 and the petticoat and one blouse of the accused Ex.P2 and Ex.P3.
PW18 is HC Virender Singh, 430 SD, Police Station Mehrauli. He has stated that on 29/06/06 he was posted as HC at PP IGNOU Police Station Mehrauli. On that day he accompanied SI Jatan Singh to H. No. 356 of Om Prakash Rajpur Khurd Delhi where ASI Ram Bhaj and other police officials met them. They went inside the first room of a house and found a dead body lying there. The crime team photographer and senior officers also came at the spot. Investigating officer seized one blood stained towel, one cream colour gamcha, one loi, one pillow, one gudri and one mat vide memo Ex.PW18/A. All the above articles were blood stained.
The investigating officer also seized blood stained earth and earth control from the spot and seized the same vide memo Ex.PW18/B. The witness identified these articles as ExPW18/P1 to Ex.PW18/P6.
PW19 is ASI Ram Bhaj. He has stated that on 29/06/06 he along with Ct. Raj Kumar and Ct. Mahesh went to H.NO. 356 of Om Prakash Rajpur Khurd, Delhi. They went inside the first room of a house and found a dead body lying there. Wife of the deceased was found there. After sometime SI Jatan Singh and HC Virender reached there. Senior officials and crime team also came at the spot. The crime team inspected the spot. SI Jatan Singh seized one blood stained towel, one cream colour gamcha, one loi, one pillow, one gudri and one mat vide memo Ex.PW 18/A. All the above articles were blood stained. The investigating officer also seized blood stained earth and earth control from the spot and seized the same vide memo Ex.PW18/B. The witness identified these articles as ExPW18/P1 to Ex.PW18/P6.
PW20 is SI Jatan Singh, EOW Crime Branch, New Delhi. He was initial investigating officer of this case. He has stated that on 29/06/06 he was posted as SI at PP IGNOU, Police Station Mehrauli. On that day on receipt of DD No. 34, the copy of which is Ex.PW20/A he along with HC Birender went to H.NO. 356 of Om Prakash Rajpur Khurd, Delhi where he found ASI Ram Bhaj and other staff present there. The crime team and senior officers also came there. No eye witness was found at the spot. He gave his endorsement over DD NO. 34 which is Ex.PW20/B, prepared a rukka and handed over to Ct. Raj Kumar for registration of the FIR. He prepared the site plan Ex.PW20/C. The crime team inspected the spot. The photographs were taken by the photographer. He seized one blood stained towel, one cream colour gamcha, one loi, one pillow, one gudri and one mat vide memo Ex.PW18/A. All the above articles were blood stained. He also seized blood stained earth and earth control from the spot and seized the same vide memo Ex.PW18/B. He has also stated that on 01/07/09, the postmortem over the dead body was conducted. After postmortem, doctor handed over him three sealed parcels and one sample seal which he seized vide memo Ex.PW9/A. He recorded statement of the witnesses. Thereafter, the case was transferred to Inspector C K Sharma for further investigation. He corroborated with the statement of PW6 regarding memos Ex.PW6/A to Ex.PW6/E. He identified the case property seized vide memos Ex.PW18/P1 to Ex.PW18/P6. He also identified the 'gandasa' got recovered by the accused as Ex.P1 and also identified the petticoat and one blouse recovered from the accused as Ex.P2 and P3. STATEMENT AND PLEA OF THE ACCUSED:
In the statements under Section 313 CrPC, the accused in response to the questions put to her with regard to the incriminating evidence from prosecution case has mainly either denied these questions or has expressed her ignorance about the questions put to her. She admitted that on 29/06/06 at about 4.15/4.20 a.m., she came at the house of Om Prakash and told that somebody killed her husband. She also admitted that PW1 Om Prakash accompanied her to her room and found Kishor in bleeding condition. PW1 made telephone call to the police on 100 number. She also admitted that on the date of incident at 4.00 or 4.30 a.m. PW2 residing in the other room of PW1 Om Prakash woke up at hearing some noise. She (accused) was weeping at that time. PW2 saw dead body of her husband lying in the room from a distance. She also admitted that at about 4 or 4.30 a.m. on hearing her noise, Dinesh came and saw her (accused) weeping. She admitted that PW5 inquired from her as to why she was weeping and sitting on the front gate of her room. She also admitted that she alongwith her husband used to reside in one room of the landlord Om Prakash. She admitted that after the incident she did not use to keep well and she had to become unconscious.
The plea of defence taken by accused in her statement under Section 313 CrPC is that she is innocent. Her husband was a mechanic so she was residing as a tenant . On the date of incident at about 4.00 a.m. She was absent in her room because she had gone to attend the call of nature to a field nearby the said room and when she returned to her room she found her husband Kishore was killed by someone. At that tine she made hue and cry but nobody came to the spot. After sometime the public witnesses reached at the spot and the case was planted on her. The said weapon was lying at the dead body. It is also planted on her. The clothes shown by the police officials were not worn and they were hanged on the wall. The accused did not lead any evidence in her defence.
ARGUMENTS AND FINDINGS I have heard the learned Additional Public Prosecutor for the State and the learned Amicus curie for the accused and have gone through the record of the case, authorities cited on behalf of the accused, and the relevant provisions of law. There is no eye witness to the incident in this case so prosecution has relied upon the circumstantial evidence. For the sake of clarity and convenience the discussion on important circumstance is dealt with under differents headings.
(A). LEGAL POSITION OF CASES BASED ON CIRCUMSTANTIAL EVIDENCE As evidence, there is no difference between direct and circumstantial evidence. The only difference is in that as proof, the former directly establishes the commission of the offence whereas the latter does so by placing circumstances which lead to irresistible inference of guilt. (See Dalpat Singh v. State of Rajasthan 2005 Cr LJ 749 (Raj) (DB)).In Padala Veera Reddy v State of AP, AIR 1990 SC 79 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See also Shivu & Anr. v R. G., High Court of Karnataka, 2007 Cr LJ 1806 (SC)) (B) . RECOVERY OF WEAPON OF OFFENCE PW6 woman Constable Amita has stated that IO arrested the accused and her personal search was conducted vide memo Ex PW6/A. Accused was interrogated and her disclosure statement Ex PW6/B was recorded. As per her disclosure statement the accused led the police team to back side of the house and got recovered one Gandasa and told the IO that she had killed her husband by the same. The IO prepared the sketch of the Gandasa Ex PW6/C, kept it in pulanda and sealed with the seal of CK S and seized it vide memo Ex PW6/D. The investigating officer PW 17 Inspector Chander Kant Sharma has corroborated with the statement of the PW 6 in this regard.
It is argued on behalf of the accused that no public witness was joined as witness at the time of recovery of weapon of offence. It is argued that the recovery of the weapon of offence, i.e. 'Gandasa' was made from an open place so it is not reliable. Reliance is placed upon the authorities State of Maharashtra Vs. Raju Bhaskar Potphode (2007) 11 SCC 261 and Shiv Narayan Vs. State (NCT of Delhi) 2001 V AD (DELHI) 761. The learned Additional Public Prosecutor for the State has strongly objected to the arguments and has argued that it is a matter of common knowledge that the public witnesses do not like to join the police investigation and the recovery of weapon was effected not from an open space but behind the house of the accused in the jungle.
So far as non joining of public witness at the time of recovery of articles is concerned, it is a matter of common knowledge that the public witnesses are generally reluctant to join police investigation. The non joining of public witnesses in any part of the investigation by police is not always fatal to the prosecution case. PW17 has also stated that no public person agreed to join investigation at the time of recovery. What is required is that evidence of official or police witnesses should be read cautiously.
Coming to the recovery of the alleged weapon of offence Gandasa, the same is to be judged as per provisions of Section 27 of the Indian Evidence Act.
The essential ingredient of Section 27 is that the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information and only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. {See Manohar Lal Vs. State of Rajasthan 1992 Raj Cr Cas 154, (1991) 2 Raj LW 119; Jaivir Singh Vs. State (1995) 1 CCR 663 (Del); Shiodas Antaram Mishram Vs. State of Maharashtra (1995) 2 Mah LJ 36; Chunni Lal Vs. State of Rajasthan 1994 Raj Cr Cas 328 }. This section is an exception to sub Section 25 and 26, which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody, unless it is made in the immediate presence of a magistrate. It allows that part of the statement given by the accused to the police, whether it amounts to a confession or not, which relates distinctly to the fact thereby discovered, to be proved. { See Chinnaswamy Reddy Vs. State of Andhra Pradesh, (1963) 1 Cr LJ 8, AIR 1962 SC 1788, 1793; Bhuribai Vs. State of Madhya Pradesh 1993 Jab LJ 318, 1993 MPLJ 197 } Thus, even a confessional statement before the police, which distinctly relates to the discovery of a fact, may be proved under this section. { See Chinnaswamy Reddy Vs. State of Andhra Pradesh , (1963) 1 Cr LJ 8, AIR 1962 SC 1788, 1793; Bhuribai Vs. State of Madhya Pradesh 1993 Jab LJ 318, 1993 MPLJ 197 }. In other words, it is only that part which distinctly relates to the discovery, which is admissible wholly, and the court cannot say that it will exercise one part of the statement, because it is of a confessional nature. (See Chinnaswany Reddy Vs. State of Andhra Pradesh AIR 1962 SC 1788) Therefore, in the light of the above legal proposition, the part of the alleged confessional statement of the accused given during custody of police to the investigating officer Inspector C. K. Sharma that she killed her husband with a gandasa is not admissible as it is hit by Section 26 of the Indian Evidence Act. However, the part of the disclosure statement which lead to discovery of fact that the gandasa was lying in the field behind the house where the deceased was murdered is admissible. The accused has got recovered 'gandasa' Ex.P1 sketch of which is Ex.PW6/C, in police custody vide seizure memo Ex.PW6/D. The contention on behalf of the accused is that since the gandasa was recovered from open field the recovery of gandasa at the instance of accused has no effect.
PW20 SI Jatan Singh has stated in the cross examination on 17/03/08 that the place of recovery was an open area and accessible to all. PW17 has stated in the cross examination on 06/11/07 that accused herself had taken out the 'Gandasa' out of the bushes. In the further cross examination on 24/10/08 he has stated that it was correct that 'Gandasa' was recovered from near bushes which was an open space. PW6 Ct. Amita who is also a witness of recovery of weapon of offence 'Gandasa' vide memo Ex.PW6/D has stated in the examination in chief that the accused took the police team to the back side of the house and got recovered one 'Gandasa'. The seizure memo of the 'Gandasa' Ex.PW6/D shows that the accused got recovered the blood stained 'Gandasa' from the bushes in the open DDA plot. The cumulative effect of the statements of the witnesses PW6, PW17 and PW20 in the examination in chief and cross examination regarding recovery of 'Gandasa' and the disclosure statement of accused Ex.PW6/B and seizure memo of 'Gandasa' Ex.PW6/D shows that the 'Gandasa' ExP1 was got recovered by accused from the bushes in the open DDA land which is also shown in the site plan Ex.PW20/C near the tenanted room where the victim was murdered. There is direct case law for such circumstances of recovery.
In State of Himachal Pradesh Vs. Jeet Singh 1999 (1) CC Cases (S.C.) 104 the following observations were made:
" 25. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to other. For example, it the article is buried on the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstance. Until such article is disintered its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others. "
In Ram Chander Mandal Vs. State 1996 (3) CC Cases 506 Delhi the Division Bench of our Hon'ble High Court has made the following observations:
" 12. .....The place of recovery of the object may be such where the public may have access yet if there is an element of concealment and it appears that it was within the special knowledge of the person at whose instance the recovery was effected, such recovery can always be taken into consideration. In the present case, the place of concealment, i.e, the bush under the Azadpur railway bridge may be accessible to the public but the fact that the objct was taken out by the appelant from the bushes cannot be lost sight of. This shows that the appellant alone knew where the bottle was concealed. This fact was within his exclusive knowledge. He alone could have known about the place where the plastic bottle containing Sulphuric acid was hidden. This recovery at the instance of the appellant is a significant fact pointing to the guilt of the appellant '......' "
In view of the Jeet Singh's case (supra) and Ram Chander Mandal's case (supra) even if the 'Gandasa' was got recovered by accused from the bushes inside a DDA plot which was accessible to public, in the absence of anything on record to show that the said 'Gandasa' was visible to others, the recovery of 'Gandasa' Ex.P1 at the instance of accused is an important fact pointing towards guilt of the accused.
Raju Bhaskar Potphode's case (supra) relied upon on behalf of the accused has noticed one circumstance that weapon of offence was recovered from open space which was one of the reasons for giving benefit of doubt to the accused. The other reason was contradiction inconsistency etc. in the statement of witnesses. The conduct of the witnesses was found unnatural as he being relative did not take deceased to hospital nor informed the police. Therefore, Raju Bhasker Potphode's case is distinguishable on facts.
In the light of Jeet Singh's case (supra), Ram Chander Mandal's case (supra), Raju Bhaskar Potphode's case (supra) and Shiv Narayan's case (supra) relied on behalf of the accused do not help the accused.
RECOVERY OF BLOOD STAINED CLOTHES OF ACCUSED: (C) (CI) The accused has got recovered her petticoat and blouse ExP2 and ExP3 vide memo Ex.Pw6/E while she was in custody of police from the room where the deceased was killed and these clothes were on the string in the room by stating that these clothes were worn by her at the time of incident. So she had hidden these clothes under the other clothes after the incident. These blood stained clothes were got recovered by accused from the tenanted room on 01/07/06 and since the room was in her possession and not accessible to general public, the petticoat and blouse Ex.P2 and Ex.P3 shall be deemed to be recovered from her possession. The other blood stained articles one towel, one cream colour gamcha, one loi, one pillow, one gudri and one mat Ex.PW18/P1 to Ex.PW18/P6 have already been recovered by the police from the room vide memo Ex. PW18/A. In Murugan v. State of Tamil Nadu 2008 X AD (SC) 502, the Apex Court has observed as follows:
"9. .................. there is nothing to doubt the recovery of the apparels of the accused made by the investigating officer. The recovery at the instance of the accused raises presumptions of guilt as against him."
Therefore, recovery of blood stained petticoat and blouse Ex.P2 and Ex.P3 at the instance of accused also points to the guilt of the accused.
Learned Counsel for the accused has relied upon Rakesh Kumar @ Mukri Vs. State of NCT of Delhi 2007 [2] JCC 1636. But it is s case based on oral dying declaration given by victim to one Constable which was one of the main evidence against the accused and was not believed by Hon'ble High Court. Therefore, Rakesh Kumar's case (Supra) has distinguishable facts and so does not help the accused.
In Lakshmi Jani Vs. The State 1986 (1) Crime Orissa. Orissa High Court has explained the position of the case based on circumstantial evidence. In that case extra judicial confession of the accused was there unlike in this case but the said extra judicial confession was not believed. Further in that case, it was also observed that the police officer recovering articles with blood stains should immediately be sealed and sent to the chemical examiner for analysis. In the present case it cannot be said that there was delay in seizure of the articles from the spot and sending it to chemical examiner. Therefore, Lakshmi Jani's case (supra) does not help the accused.
In Sattatiya @ Satish Rajanna Vs. State of Maharashtra 2008 (1) LRC 189 (SC), the credibility of the prosecution witness was questioned and not found appropriate because witness wanted to win favour from police in cases registered against him. Further it was observed that it was unlikely the prosecution witness, the hawker would remember what was sold to a customer almost two months after the transaction and that too without identity of the goods sold having been established. These circumstances are not present in this case. Therefore, Sattatiya @ Satish Rajanna's case (supra) does not help the accused.
In Chatru Vs. The State I1987(1) 110 Orissa, no incriminating article has been recovered from the possession of the accused while it is not so in the present case so Chatru's case (supra) also does not help the accused on account of recovery of weapon of offence and the blood stained clothes worn by the accused at the time of incident as detailed before in the judgment.
(D) MOTIVE: In Shiv Narayan's case (supra), relied on behalf of the accused the Division Bench of our High Court has held:
" It is well settled principle of law that in a case based on circumstantial evidence motive assumes considerable importance. However, failure to establish motive would not affect prosecution case if there is positive evidence and establishes the charge against the accused. If other circumstances are such as to complete the chain connecting accused with crime then lack or absence of motive is not fatal. "
Therefore, although the motive of accused in killing the deceased in a case based on circumstantial evidence is an important circumstance but the absence of proof of motive in itself is not fatal to the prosecution case. Although during the investigation, the police has extracted disclosure statement of accused Ex.PW6/B wherein she has stated that her husband deceased Kishor did not use to send her money for expenses in village so she came at Delhi where he used to quarrel with her and used to insult her on small matters and did not use to give her money for domestic expenses and he also had illicit relationship with other women and she has also stated that deceased had teased her a lot, so she wanted to kill him. She bought a gandasa of Rs. 70/ and killed the deceased with it. These statements of the accused made to the police in the disclosure statement while in custody are certainly hit by Section 26 of the Indian Evidence Act and so are unable to prove the motive of the accused.
Prosecution has also produced the public witnesses who are neighbours of the accused and her deceased husband.
PW2 Hari Ram has stated in the examination in chief that an altercation (tu tu main main) used to take place between accused and the deceased.
PW4 Neelam has stated in the examination in chief that the accused used to complain occasionally that her husband was not paying for any expenses for running the house. In the cross examination conducted on behalf of the State by learned Additional Public Prosecutor, she has stated that it was correct that frequent quarrels were taking place between the accused and deceased. It was also correct that the quarrel were taking place for non payment of expenses to accused Indu. It was correct that accused used to tell her that her husband used to send the money earned by him to his village. In the cross examination conducted on behalf of the accused the witness PW4 Neelam has stated that no serious dispute or quarrel had taken place between deceased and accused. However, non payment of expenses was an ordinary quarrel between husband and wife.
PW5 Dinesh has stated in the examination in chief that accused used to complain occasionally that her husband was not paying expenses for household articles and on that account there used to be an altercation (tu tu main main) between them. In cross examination conducted on behalf of the accused it is stated that no serious quarrel used to take place between the accused and deceased. It was an ordinary quarrel between husband and wife.
Therefore, what the prosecution is able to prove is that there used to be quarrel or exchange of words (tu tu main main) between accused and her deceased husband on the question of non payment of day to day expenses by deceased to accused. Ordinarily, such a quarrel cannot motivate a wife to kill her husband but the fact that this incriminating circumstance emerging from prosecution case is denied by the accused in her statement under Section 313 CrPC makes this ordinary quarrel between accused and victim husband important as additional link in the circumstantial evidence against accused, as is discussed ahead in this judgment at serial No. (1).
(E) LAST SEEN EVIDENCE: In the present case it is revealed from the prosecution case and is admitted by accused in statement under Section 313 CrPC that accused was living in the tenanted room of which landlord is PW1 Om Prakash. It is also not a disputed fact that on the night the victim Kishor was murdered, the accused and her child aged 3 years were present in the tenanted room in question. The other tenants being the public witnesses produced by the the prosecution have also testified to the presence of accused in the tenanted room in question with her husband on the fateful night. The accused has also not disputed this fact in the statement under Section 313 CrPC. On her behalf, during the course of final arguments, no dispute is raised that she was present with her victim husband on the night in question on which victim Kishor was murdered. Therefore, the important incriminating circumstance of accused being last seen with the victim is established on record of the case as undisputed fact.
(F) MEDICAL EVIDENCE: PW8 Dr. Arvind Kumar has conducted postmortem on the body of the deceased Kishor Kumar and has proved his report Ex.PW8/A. He has proved that there was a chop wound of size 27 cm long, 9 cm deep gaping 15 cm present at lower border of left mandible, starting posteriorly from mid line of back of neck to the mid point of chin. Cutting all the left side of neck structures up to the first cervical vertebrae ( whole thickness ), structures found cut all ( all major vessels of neck left side ), sternomastoid and omohyoid muscle with spinal cord transaction at C1 level with extravasation of blood in soft tissue. Margins were clean cut, tailing directed towards chin.
Another cut throat wound 7x.5 cm, sub cutaneous tissue deep, 6 cm below lower border of mandible (left), tailing medially, horizontally placed, with extravasation of blood in soft tissue. There was cut throat wound 12x3x4 cm at mid thyroid cartilage level (whole thickness of cartilage found cut) with extravasation of blood in soft tissue margins clean cut, directed medially. In continuation of which an incised wound 6 x 1.5 cm x.3 cm horizontally placed at right clavicular region. Contusion bluish brown in colour 5x4 cm over top of left shoulder. PW8 Dr. Arvind Kumar has given his opinion that the cause of death in this case is hemorrhagic shock due to fatal cut throat wound (injury no.1 and 3) caused by sharp edged weapon which are independently sufficient to cause death in ordinary course of nature. All injuries were antemortem in nature. The photographs of the deceased are Ex.PW14/P7 to Ex.PW14/P12 are also proved by PW14, the photographer and conforms to the postmortem Ex.PW8/A of PW8 Dr. Arvind Kumar.
On 28.08.06 the investigating officer of the case Inspector C K Sharma submitted application for subsequent opinion alongwith alleged weapon of offence. The alleged weapon was inside a pulanda with 10 intact seal. Subsequent opinion of Dr. Arvind Kumar was obtained by investigating officer C K Sharma by submitting an application alongwith weapon of offence i.e. 'Gandasa' Ex.P1. PW8 has stated that after examining the weapon of offence, he was of the considered opinion that all the injuries found on the body of the deceased can be possible with the alleged weapon i.e. 'Gandasa'. He proved his subsequent opinion report Ex.PW8/B. (G) REPORT OF FORENSIC SCIENCE LABORATORY: The report of Forensic Science Laboratory, Delhi is proved on record as Ex.PX. It shows that the blood stained articles Ex.PW18/P1 to Ex.PW18/P6 recovered from the room in question vide memo Ex.PW18/A and petticoat and blouse Ex.P2 and Ex.P3 seized vide memo Ex.PW6/E from the accused, weapon of offence 'Gandasa' Ex.P1 seized vide memo Ex.PW6/D and the part of the blood stained floor which was broken and seized vide memo Ex.PW18/A on being sent for analysis were found to contain blood except one seized parcel containing clothes which is shown as Ex. H in the FSL report Ex. PX. Further the report of FSL except the item pillow with cover and underwear which is shown to have 'inconclusive result' and 'no reaction' respectively other articles were found to contain human blood of 'A' group only leading to the inference that the blood group found on these articles and that of the victim Kishore was of 'A' group. The fact that the 'Gandasa' Ex.P1 and the petticoat and blouse Ex P2 and Ex P3 recovered at the instance of accused were found to contain human blood of 'A' group again points towards guilt of accused.
(H) CRUCIAL CIRCUMSTANCE/EVIDENCE: In the present case the most important circumstance which appears from prosecution case and is also not disputed by accused in her statement under Section 313 CrPC and during the final arguments on her behalf is that on the fateful night, accused her husband deceased Kishor and their child aged 3 years were alone in the tenanted room in question. The 3 years old child cannot be supposed to pick up 'Gandasa' ExP1 and kill her father. It is not a case in which the victim himself has committed suicide. Once the fact of last seen together of accused and victim is proved, a duty is cast on the accused to explain the circumstances in which they parted company.
The failure of the accused to explain the circumstances in which he parted company with the deceased may well serve as additional link in the chain of circumstances thereby fortifying the prosecution case. (See Yogesh Karki v. State of Sikkim 2006 Cr LJ 509 (Sikkim) (DB). Silence of inmates of the house about cause of the death of the victim, would become additional link in chain of circumstances. (See Trimukh Maroti Kirkan v State of Maharashtra, 2007 Cr LJ 20 (SC).) Therefore, the fact as to who killed the victim Kishor seems to be in the special knowledge of accused who owes the responsibility of explaining it as per Section 106 of Indian Evidence Act which requires if a fact in the special knowledge of person the burden to prove that fact lies on him/her. If the accused has not killed her husband then she was required to explain and prove by the convincing evidence either emerging from prosecution case or in her defence as to who killed him or why she is innocent? The fact that accused got recovered weapon of offence 'Gandasa' Ex.P1 and her blood stained clothes Ex.P2 ad Ex.P3 which were found to contain human blood 'A' group coupled with the fact that the accused was alone in the room in which in the night on which the victim Kishor was murdered certainly points towards the guilt of the accused and is a crucial circumstance which owes a huge explanation from the accused to wriggle out of this very strong crucial evidence against her. The defence of the accused shall be considered up ahead in this judgment.
(I)ADDITIONAL LINK IN THE CHAIN OF CIRCUMSTANCES AGAINST THE ACCUSED: It is a well settled principle that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue then the same offers an additional link in the chain of circumstances to complete the chain. (See Swepan Patra v State of West Bengal (1999) 9 SCC 242; Anthony D'Souza & ors v State of Karnataka 2002 (10) AD 37 (SC)) A false answer offered by the accused when his attention was drawn to a circumstance renders that circumstance capable of inculpating him. In such a situation a false answer can also be counted as providing 'a missing link' for completing the chain. (See State of Maharashtra v Suresh 2000 (1) SCC 471, 2000 SCC (Cr) 263; Kuldeep Singh & ors v State of Rajasthan 2001 Cr LJ 479 (SC), (2000) 5 SCC 7; Joseph v State of Kerala AIR 2000 SC 1608, (2000) 5 Sec 197; Jalasab Shaikh v State of Goa AIR 2000 SC 571, 2000 AIR SCW 111.) Where the accused on being asked, offers no explanation or explanation offered is found to be false, then that itself forms an additional link in the chain of circumstances to point out the guilt. (See Chandrasekhar Kao v Ponna Satyanarayana AIR 2000 SC 2138, JT 2000 (6) 465 SC; State of Tamil Nadu v Rajendran AIR 1999 SC 3535, 1999 Cr LJ 4552; Hari Lal v State 2001 Cr LJ 695 (All) (DB); Madho Singh & etc v State of Rajasthan 2001 Cr LJ 2159 (Raj) (DB); Sonatan Mahalo v State of West Bengal 2001 Cr LJ 3470 (Cal) (DB).) In the statement under Section 313 CrPC, the accused was asked in question No. 11 that it was in evidence against her that PW20 seized blood stained earth and earth control from the spot which is Ex.PW18/B. Dead body was got sent to AIIMS mortuary and she stated that she did not know about it. In question No.28 she was asked that she used to have altercations (tu tu main main) with her husband and she denied this fact. In question No. 30 she was asked that she alongwith her husband and other neighbourers and PW2 took dinner and PW5 Dinesh after taking dinner, wife of PW5 Dinesh washed utensils, she also washed utensils alongwith wife of PW5. She denied this fact for the reasons best known to her while these facts are proved by the prosecution in statement of accused. In question No. 40 she was asked that she used to complaint occasionally that her husband was not paying to her expenses for running the house but she denied the fact while her immediate neighbours, the public witnesses produced by the prosecution have proved this fact. In question No. 41 she was asked that there used to be frequent quarrel taking place between her and the deceased. The quarrel used to take place for non payment of expenses to her and she denied this fact. But this fact is established by statement of prosecution witnesses who are neighbours of accused. Although in the cross examination PW4 has stated that no serious dispute/quarrel had taken place between deceased and accused for non payment of household expenses and it was an ordinary quarrel between the deceased and her wife, if it was so why the accused has denied that there used to be quarrel between her and her deceased husband. The denial of the accused of these facts in the statement under Section 313 CrPC which are established clearly by the statement of PW2 Hari Ram, PW4 Neelam and PW5 Dinesh, the immediate neighborers of the accused and deceased, can be viewed as an additional link in the chain of circumstances appearing against the accused, in the light of case law mentioned before.
( J ) DEFENCE OF ACCUSED: The accused has taken defence that she was suffering from loose motion on the night in question and on the date of incident at about 4.00 a.m. she was absent from her room because she had gone to attend the call of nature to a field, nearby the said room and when she returned to her room she found her husband Kishor was killed by someone. She made hue and cry but nobody came to the spot. After sometime the public witnesses reached at the spot and the case was planted on her. The said weapon was lying at the dead body. It is also planted on her. The clothes shown by the police officials were not worn and they were hanging on the wall.
The story put forward by the accused is not worth believing. She has not named anybody who was inimical to the victim Kishore Kumar. The murder of victim Kishor Kumar was not committed in order to commit theft in the room. Therefore, the story of defence taken by accused is certainly improbable. The denial of incriminating circumstances emerging from the prosecution case in statement under Section 313 CrPC or taking a plea of alibi which is not substantiated by any convincing evidence does not absolve the accused in a criminal case.
Although one of the witnesses of prosecution, PW4 Neelam has stated that prior to the incident the accused had told her that she was having pain in her stomach and she was suffering from loose motion but this statement in my view is not sufficient to absolve the accused from liability as PW4 is a hostile witness and has made statement in the cross examination conducted on behalf of the accused which supports her case. Even if it is taken as truth that accused has told PW4 Neelam that she was having pain in her stomach and she was suffering from loose motions it does not necessarily show at the time of commission of murder she had gone to attend the call of the nature. In the given facts and circumstances, the presumption arises that the accused told this fact to PW4 to create a defence for her prior of committing murder of her deceased husband that she had gone to attend the call of the nature at the relevant time. If at all she had gone to the field near the tenanted room in which the murder was committed it seems to be for concealing the weapon of offence 'Gandasa' Ex.P1 and the plea that she had gone to the field to attend call of nature seems to be only a make believe story. Therefore, the plea of defence of accused remained unproved on record. There is no convincing evidence on record to establish the fact that at the time the murder of her husband was being committed in the room she was not present inside the room.
The false plea of defence taken by accused also shows her guilty mind and an additional link in the chain of circumstances against her in the light of Swepan Patra's case (supra), Anthony D'Souza's case (supra), Suresh's case (supra), Kuldeep Singh's case (supra), Joseph's case (supra) and Jalasab Shaikh's case (supra) therefore, the plea of defence is liable to be discarded.
RESULT OF THE CASE:
In view of the above discussion, I hold that prosecution has been able to prove its case against the accused persons beyond reasonable doubt. The accused is held guilty and convicted for the offence punishable under section 302 IPC. Let she be heard on the point of sentence. Announced in the open court on 10/07/09 ( S K Sarvaria ) Addl Sessions Judge01/South Patiala House Court IN THE COURT OF SHRI S.K. SARVARIA ADDITIONAL SESSIONS JUDGE01SOUTH PATIALA HOUSE COURTNEW DELHI Sessions Case No : 219/06 State vs Smt Indu Devi W/o Late Sh Kishore Kumar R/o Village Chhitauli, Post Parasrampur P.S. Maujhagarh, Gopal Ganj, Bihar FIR No. 445/06 PS : Mehrauli U/S 302 IPC ORDER ON SENTENCE By my judgment dated 16/07/09, the convict/accused was convicted for the offence under Seciton 302 IPC.
Ld. Addl PP has argued for deterrent punishment against convict/accused, keeping in view the serious nature of the crime committed by her.
On behalf of the convict/accused, it is argued that the convict/accused is a woman and there is nobody to look after her child aged about 67 years so lenient view may be taken against her.
I have heard Ld. APP and Ld. Amicus Curiae for the convict. The punishment prescribed u/s 302 is either death penalty or imprisonment for life, in addition the convict for the said offence is also liable to pay fine.
It is settled legal position that the punishment awarded should be proportionate to crime committed by the accused. Section 354 (3) CrPC requires that the Court should give special reasons for awarding the death sentence u/s 302 IPC. The settled legal position is that the death penalty is awarded only in rarest of rare murder case. Therefore, the special reasons envisaged by Section 354 (3) CrPC are those which make the case fall amongst the rarest of rare cases. Although in the present case, the brutal murder of the victim Kishor, the husband of the accused/convict, which fact is obvious from the photographs and the postmortem report on the record of judicial file but in every case brutality is involved and the brutality in itself will not bring the case within the ambit of rarest of rare cases. {See Registrar General, High Court of Karnataka Vs. Prakash Jadav (2006) CrLJ 3393 (Kant) (DB); Shyamlal Vs. State of Chhattisgarh (2006) CrLJ 4743 (Chhatisgarh) (DB) and (2003) CrLJ 443 (SC) } Therefore, the present cases cannot be said to fall amongst rarest of rare case to award death penalty to the present convict.
In view of the above, the convict/accused is awarded life imprisonment for the offence under Section 302 IPC. However, in the light of Bidhan Nath alias Parijat Kusum Nath & ors Vs. State of Assam (2000) CrLJ 1144 (Gau) (DB) there is no need to award fine in the given facts and circumstances of the case.
Judgment and order on sentence be sent to server (www.delhidistrict courts. nic.in). Copy of judgment and order of sentence be supplied to convict/accused persons free of cost.
File be consigned to record room.
Announced in the open court on 21/07/09 ( S K Sarvaria ) Addl Sessions Judge01/South Patiala House Court