Delhi District Court
State vs Narender Singh Rawat, on 25 August, 2012
IN THE COURT OF SH. RAVINDER DUDEJA: ADDITIONAL SESSIONS JUDGE; (EAST) FTC : E COURT: KARKARDOOMA COURT: DELHI. SESSIONS CASE No. 45/10 FIR No. 678/09 U/S: 302 IPC P.S: Shakar Pur State Versus Narender Singh Rawat, S/o Sh. Surender Singh, R/o H. No. S-621-A, Nehru Enclave, School Block, Shakar Pur, Delhi. Date of Institution : 13.04.2010 Date of Arguments : 06.07.2012 Date of Judgment : 25.08.2012 JUDGMENT
1. Prosecution case is that on 11.11.2009, DD No. 26-A was recorded at Police Station Shakar Pur regarding a quarrel at house No. 621, Nehru Enclave, Shakar Pur. On receipt of the call, SI Nirmal Jha along with Constable Daya Ram went to the spot where they came to know that injured had been rushed to LBS Hospital. HC Hari Krishan, on motorcycle duty, was present at the spot. After deputing him at the spot, SI Nirmal Jha along with Constable Daya Ram reached LBS Hospital where Sunita, wife of Narender Singh was declared "brought dead" by the doctor. On inspection of the body, it was found that blood was oozing from the back of FIR No. 678/09 1 of page 28 her head. The body was sent to mortuary for postmortem. Shakuntala, sister in law of Sunita, was present in the hospital. Her statement was recorded wherein she stated that Sunita was her Nanad (sister in law) and she was married with Narender Singh about 17 years ago and was having two sons aged about 12 years and 10 years. Narender Singh was not doing any work since his marriage and was a drunkard. Deceased was a handicapped and was living in a rented house with Narender Singh and was running a small grocery shop in the house for her livelihood. Narender Singh often used to quarrel with her. At about 3.00 pm while she was sitting with her neighbourer, someone informed her that Narender was beating her Nanad Sunita. When she reached at the house, she saw that Narender hit a kanni, meant for plaster of the wall, on the head of Sunita and then fled away. Sunita was in a pool of blood. Her daughter Kavita informed the police at 100 number. The police van came and took Sunita to LBS Hospital where she was declared "brought dead" by the doctor. On the statement of Sunita, FIR was registered under Section 302 IPC. Crime team was called to inspect the spot. No chance print or finger print was found. Spot was photographed. Exhibits were lifted from the spot. Site plan was prepared at the instance of Smt. Shakuntala. In her supplementary statement, Shakuntala stated that when Narender was beating Sunita, she asked him to leave her but he did not pay heed and there was no one in the gali for help and by the time she returned, Sunita was lying unconscious on the floor and Narender had fled away from there. She further stated that at that time, Narender was wearing a black pant and a blue shirt and it was possible that besides kanni, accused Narender may have caused injuries to Sunita with some other weapon also. Statements of neighbourers and son of deceased were recorded and they also stated in their statements FIR No. 678/09 2 of page 28 that Narender Singh was habitual of liquor and used to beat his wife Sunita and compel her to give money for liquor. The postmortem of the deceased was conducted. On 24.12.2009, accused Narender Singh was arrested from Kapashera border on the basis of secret information. He gave disclosure statement. A bag containing a black pant and blue shirt was recovered which he was wearing on the day of incident. Accused then got recovered a hammer used in the commission of offence. Exhibits were sent to FSL. During investigation, it was found that on 05.10.2007 when accused and his wife were living at Kotla Village, PS Pandav Nagar, at that time also, he had beaten his wife Sunita under the influence of liquor and had caused her injuries on left scapular region. The relevant record was obtained from LBS Hospital and PS Pandav Nagar. Pending the receipt of FSL result, charge sheet was filed against the accused under Section 302 IPC. Later on, FSL result was collected and filed in court.
2. After compliance of Section 207 Cr. PC, the case was committed to Sessions Court. Charge under Section 302 IPC was framed against the accused to which, he pleaded not guilty.
3. In order to prove its case, prosecution examined 30 witnesses. PW-1 is HC Som Pal Singh, Duty Officer. He proved the FIR Exbt. PW-1/A. PW-2 is HC Sonu Kaushik, Assistant Draftsman, Crime Branch. He prepared the scaled site plan Exbt. PW-2/A at the instance of Shakuntala.
PW-3 is Smt. Shakuntala. She is the complainant. She proved FIR No. 678/09 3 of page 28 her statement Exbt. PW-3/A. PW-4 is Abhishek, son of the deceased. He deposed that accused was doing nothing and used to drink liquor and demand money from his mother and on 11.11.2009, their house was being white washed and at about 6.00 am his father demanded money from his mother but on her refusal, he started beating her due to which left arm of his mother got swollen. At about 2.00 pm, his mother asked him to go to the house of his Mama failing which, his father would beat him. Then he along with his brother Vivek went the house of their Mama. At their Mama's house, after watching TV, he and his brother was sleeping. His Mami awakened him and told him that his mother was lying in her house. He along with his Mami came to the house and found the crowd gathered there. Utensils in the house were lying scattered. His mother was lying in the corner near the staircase and was bleeding from the back of the head. PCR came there and took his mother to LBS Hospital. His Mami also went in the PCR. Next day, his mother died in the hospital. He further deposed that one or two days before Diwali, his father hit him with a Lota on his head. He was taken to doctor by his Mami and was given stitches on his head. As per court observation, there was a scar of about two inches in length on the head of PW-4.
PW-5 is Smt. Poornima Sharma, neighbourer. She deposed that her house is situated opposite the house of Sunita and that Sunita used to run a small general store keeping packaged food items. On 11.11.2009 at about 2.45 - 3.00 pm while she was present in her house and giving lunch to her daughter and nephew, her neighbourer Nitam, a girl FIR No. 678/09 4 of page 28 aged about 16-17 years came to her and told her that a quarrel had taken place in the street. She along with her nephew went to the house of Sunita and saw Sunita in a sitting posture with the support of wall and her legs were spread. She then went to the house of the brother of Sunita which was at a distance of 5-6 houses and asked the daughter of brother of Sunita to go to the house of Sunita and see what has happened there. She then came back to the house and stood outside near electricity pole. The daughter of brother of Sunita rushed to the house of Sunita. The sister in law of Sunita also reached there. She further stated that she made a call at 100 number from her mobile phone. PW-5 was declared hostile and was cross examined by the learned APP. She denied that when she reached at the spot, she saw that accused was beating his wife Sunita or that he ran away from the spot after beating his wife. She denied that when Sunita was being taken by the police, she was saying "Mujhe Mere Pati Jallad Ne Maara Hai, Aaj Main Nahin Bachoongi." She admits that accused was not working and that Sunita used to work. However, she denied that accused was in the habit of beating Sunita and her children after taking liquor.
PW-6 is Shyam Singh, brother of the deceased. He deposed that on 11.11.2009, he was away on duty and at about 3.30 pm, he received a call from his wife that Sunita had sustained injuries. He told his wife to take Sunita to the hospital and call the police. At about 4.30 pm, he again received a call from his wife telling that Sunita had died. He then rushed to the house at about 5.00 - 5.15 pm. Next day, he identified the body of Sunita. He further stated that the articles lying at the spot including kanni were seized by the police vide memo Exbt. PW-3/PX1. He deposed that accused used to quarrel with Sunita and demand money for FIR No. 678/09 5 of page 28 consuming liquor and that about 15-20 days or a month prior to the incident, accused had also beaten his son Abhishek who received stitches on his head.
PW-7 is Kartikay, a neighbouring tenant of deceased. He could not tell about the kind of relations that accused was having with his wife. He deposed that on 11.11.2009, he returned to his house at about 9.00 - 9.25 pm and found crowd there. There he came to know that a lady who used to run a shop has been murdered. PW-7 was declared hostile and cross examined by the learned APP. In the said cross examination, he denied that accused used to drink heavily and was doing nothing. He admitted that he had told the police that often, he used to hear sound of quarrel of Narender with Sunita.
PW-8 is ASI Ahtesham Ali, Incharge, Crime Team. He along with ASI Harsh, Finger Print Expert and Constable Narender, Photographer came at the spot and got the scene of crime photographed.
PW-10 is Mahender Pal Singh Rawat. He deposed that on 25.12.2009 at about 12.00 noon or 1.00 pm while he was present near Akshardham and was waiting for his colleague, a Police Gypsy passed from there. Accused, who is his Phoopha, was present in the Gypsy with the police officials. Gypsy stopped and the police officials asked him to join the investigation of this case. He willingly joined the investigation and along with them went to rainy well at Yamuna Bank in the said police Gypsy and thereafter went on foot. He further stated that accused led the police party to the nearby bushes and got recovered a hammer on which words FIR No. 678/09 6 of page 28 "Pushpa Super" were written. Accused disclosed that he had attacked his Bua Sunita with the said hammer. The hammer was taken into possession vide seizure memo Exbt. PW-10/A. Accused then pointed out the place of occurrence vide memo Exbt. PW-10/B. PW-11 is SI Nirmal Jha. He is the first IO. He went at the spot with Constable Daya Ram and from there, they went to LBS Hospital where he procured the MLC of Sunita, who was declared "brought dead". He then recorded the statement of Shakuntala, Bhabhi of the deceased and prepared the Rukka Exbt. PW-11/A and sent the same at police station through constable Daya Ram for the registration of the FIR.
PW-12 is Sh. N.K. Sharma, Finger Print Expert. He stated that no chance prints were found. His report is Exbt. PW-12/A. PW-13 is Dr. Praveen Kumar Dalmiya. He stated that on 18.02.2010 on an application filed by Inspector D.K. Sharma, copy of MLC No. 8275/07 and record of CR No. 87657/07 was given to him. The copy of the said record is Exbt. PW-13/A and Exbt. PW-13/B respectively.
Constable Narender Singh has been wrongly numbered as PW-
13. He took nine photographs of the scene of crime which are Exbt. PW- 13/A-1 to Exbt. PW-13/A-9.
PW-14 is Dr. S. Prasad, Senior Chief Medical Officer, LBS Hospital. He identified the signatures of Dr. Anil on MLC Exbt. PW-14/A. FIR No. 678/09 7 of page 28 PW-15 is Lady Constable Savita from PCR. She stated that at about 3.23 pm, she received an information regarding a quarrel at Nehru Enclave, house No. S-621-A in front of Akshardham Flyover. She filled up the PCR Form Exbt. PW-15/A. PW-16 is HC Nisha Kapoor, Duty Officer,, PS Shakar Pur. She recorded the information vide DD No. 26-A which is Exbt. PW-16/A. PW-17 is Constable Daya Ram. He had assisted SI Nirmal Kumar Jha (PW-11) in the investigation of the case. He had taken the Rukka to the police station for the registration of the FIR. On 12.11.2009 after postmortem, three parcels and the sample seal given to him by the doctor were handed over to the IO which were seized vide memo Exbt. PW-17/A. PW-18 is HC Ajender Kumar. He assisted IO Inspector D.K. Sharma in the investigation of the case. He had visited the spot with IO. He is the witness to the memos with regard to the seizure of the exhibits from the spot. He had deposited the exhibits with FSL. He is also witness to the arrest of the accused, recovery of clothes and hammer at the instance of accused.
PW-19 is ASI Pyare Lal. He had arrested the accused under Section 92/93/97 D.P. Act on a previous occasion on account of a quarrel between Narender and his wife. He had recorded the statement of Sunita, wife of Narender and had taken the accused Narender and his wife to LBS Hospital for medical examination. He stated that on the medical FIR No. 678/09 8 of page 28 examination of accused, it was found that he was under the influence of liquor and the injuries received by Sunita were caused by blunt weapon.
PW-20 is Manoj Kumar, LDC from LBS Hospital. He produced the MLC of Sunita dated 05.10.2007 Exbt. PW-20/A and also produced the medical record i.e. C.R. No. 87657/07 dated 06.10.2007 of Narender Singh which is Exbt. PW-20/B. PW-21 is Constable Latafat Ali. He took the FIR and original Rukka from the Duty Officer and gave it to IO at the spot. He joined the investigation with IO on 24.12.2009. He is the witness of arrest of accused and the recovery of his clothes and hammer at his instance.
PW-22 is HC Surender, the then MHCM. He proved the relevant entries of Register No. 19.
PW-23 is Constable Nizamuddin. He had deposited the plastic jar at Finger Prints Bureau.
PW-24 is Dr. S. Prasad from LBS Hospital. He deposed that patient Sunita was declared "brought dead" by Dr. Anil. He proved the death certificate and MLC of the deceased as Exbt. PW-24/A and Exbt. PW-24/B respectively.
PW-25 is Dr. Vinay Kumar Singh. He had conducted the postmortem on the body of the deceased. His report is Exbt. PW-25/A. He stated that injuries No. 1, 2, 3 & 4 on the body of the deceased could have FIR No. 678/09 9 of page 28 been caused by hammer and injury No. 5 & 6 on the body of the deceased could have been caused by kanni or similar weapons. His detailed report is Exbt. PW-25/B. PW-26 is HC Hari Kishan. He was on motorcycle duty with rider Constable Rambir. He deposed that on 11.11.2009 at about 3.30 pm, on receipt of PCR call regarding a quarrel at house No. 621, Nehru Enclave, he reached there at 3.35 pm on motorcycle and saw a lady whose name was revealed at Sunita in an injured condition near main gate and stairs. Blood was lying on the floor. Shakukntala told him that husband of Sunita had run away from there after beating the injured. On seeing the condition of the injured, he passed the information to the PCR. PCR van came at the spot and took the injured to LBS Hospital.
PW-27 is ASI Ajit Singh from PCR. He had rushed the deceased to LBS Hospital in the PCR van.
PW-28 is Inspector Dinesh Kumar. He is the IO of this case. During investigation, he went at the spot and found the blood scattered on the floor. A kanni was also lying in blood. A sleeper of left foot, yellow colour dupatta, two wooden phattas and some utensils were also lying there. Site plan Exbt. PW-28/A was prepared on the pointing out of Shakuntala. Kanni was kept in a plastic box and sealed with the seal of DKS and seized vide memo Exbt. PW-3/PX1. Two phattas, one sleeper and dupatta were put in different cloth pullandas and sealed with the seal of DKS and seized vide memo Exbt. PW-3/PX2 to Exbt. PW-3/PX4. Blood was seized from the spot. Statements of Shakuntala, Shyam Singh, FIR No. 678/09 10 of page 28 Kartikeyan, Abhishek and Poornima were recorded. Inquest proceedings Exbt. PW-28/B were conducted. After postmortem, the body was handed over to Shyam Singh vide memo Exbt. PW-28/C. Kanni was sent to Finger Prints Bureau but no finger prints were found. On 24.12.2009, a secret information was received that accused often visits sharab theka at Kapashera near border but accused could not be found there. The police officials then came at main road and took positions at different places. At about 8.30 pm, accused came from the side of Gurgaon with a chadar wrapped over him along with a bag. He was apprehended on the pointing out of the informer. An ESIC card having his photograph with his wife and both children was recovered. Accused was arrested. He gave disclosure statement Exbt. PW-18/G. From the possession of the accused, a black colour pant and a blue colour shirt were recovered which he was wearing at the time of incident. Both the articles were put in a pullanda and sealed with the seal of DKS and seized vide memo Exbt. PW-18/F. Accused then took them to rainy well near railway track towards Yamuna Khadar near School Block, Shakar Pur for the recovery of hammer but due to winter night, accused could not locate the exact place. On 25.12.2009, accused was again taken to rainy well. On the way, Mahender Singh, relative of deceased, was joined in the investigation. Accused got recovered a hammer from a bush near the rainy well. After taking measurement, the hammer was kept in a pullanda which was sealed with the seal of DKS and seized vide memo Exbt. PW-10/A. Accused then pointed out the place of incident vide memo Exbt. PW-10/B. On interrogation, he gave disclosure statement Exbt. PW-28/D. Exhibits were sent to FSL. Scaled site plan was got prepared from Sonu Kaushik, Draftsman. After filing of the charge sheet, FSL results Exbt. PW-28/E and Exbt. PW-28/F were filed in court.
FIR No. 678/09 11 of page 28 PW-29 is HC Pramod Kumar, DD Writer. He proved the copies of DD No. 2-B and 28-A as Exbt. PW-29/A and Exbt. PW-29/B respectively.
4. Statement of accused was recorded under Section 313 Cr. PC wherein he stated that he was innocent. He did not lead any evidence in his defence.
5. I have heard Mohd. Iqrar, learned Additional PP for the State and Mohd. Hassan, learned Amicus Curiae for the accused. The learned Amicus Curiae submits that there is no eye witness of the occurrence. The independent witnesses Smt. Purnima Sharma and Kartikay have turned hostile and have not supported the prosecution case and PW-3 Smt. Shakuntala is also not the eye witness of the occurrence as fatal blow was not given to deceased in her presence. It is submitted that PW-3, PW-6 and PW-9 are interested witnesses being the relatives of the deceased. It is further submitted that PW-4 Abhishek, who is the son of the deceased, has deposed under the influence of PW-3 and therefore his testimony is not reliable. It has also been argued that prosecution has failed to prove any motive for the murder and has also failed to prove the presence of accused at the spot. With regard to the cause of death of the deceased, it has been argued that deceased had died due to accidental slip over broken brick pieces near the staircase but he has been falsely implicated by his brother in law and his wife as they are in illegal occupation of his shop at Village Kotla. The learned APP however argues that present case is based both on direct as well as circumstantial evidence which clearly proves the guilt of the accused.
FIR No. 678/09 12 of page 28
6. The postmortem report Exbt. PW-25/A proves that deceased Sunita had received following external injuries:
(i) Lacerated wound above forehead (RP) side, obliquely placed measuring 4 cms x 1 cm x skull cavity deep, 4 cms above (RP) ear, brian matter visible, margins irregular ends acute.
(ii) Arc shaped abrasion at (RP) frontal region measuring 2.3 cms x 0.3 cms, placed 0.6 cms below injury No. 1, 3 cms above (RP) ear placed obliquely and parallel to injury No. 1.
(iii) Lacerated wound irregular shaped, present at (RP) temporal region measuring 4.5 cms x 2 cms x bone deep, margins irregular underlying bone fracture visible, 5.5 cms from (RP) ear, 3.5 from injury No. 1.
(iv) Lacerated wound at (RP) occipital region measuring 2 cms x 1 cm x bone deep, obliquely placed, 7.5 cms from (RP) ear, 0.7 cms from injury No. 3, margins irregular, underlying fracture visible.
(v) Lacerated wound at (RP) thumb, posterior aspect measuring 2 cms x 1 cm x bone deep, underlying fracture visible, 2.7 cms below tip of thumb.
(vi) Lacerated wound at center of forehead measuring 4 cms x 0.5 cms x bone deep, vertically, margins irregular, ends acute.
(vii) Circular burn mark at lateral aspect of (LP) eye measuring 1 cm x 0.7 cms, black in colour, 1.6 cms from (LP) eye.
(viii) Bruising at (LP) eye measuring 5.5 cms x 4.5 cms.
(ix) Bruising at (LP) arm measuring 8 cms x 12 cms, 7 cms below tip of shoulder, rail road pattern.
(x) Abrasion at neck (LP) side measuring 2.8 cms x 0.3 cms, 3 cms
FIR No. 678/09 13 of page 28
from mid line, 5 cms from (LP) ear.
(xi) Abrasion at mid line and neck measuring 3 cms x 1.5 cms.
(xii) Bruising just above hips (LP) sided measuring 3.5 cms x 2 cms.
7. Doctor gave the opinion that injuries No. 1, 2 & 4 were sufficient to cause death individually and collectively in the ordinary course of nature.
Kanni and hammer are stated to be the weapons of offence. The kanni and hammer were shown to the doctor for his opinion. Dr. Vinay Kumar (PW-
25) after examination of kanni and hammer gave the opinion that injuries No. 1, 2 , 3 & 4 on the body of the deceased could have been caused by the hammer and injuries No. 5 & 6 could have been caused by kanni or similar weapon. The postmortem report and the testimony of doctor prove that death was homicidal in nature.
8. If prosecution story is to be believed, PW-3 Shakuntala is not a witness to the fatal blows given by hammer. However, fact in issue can be proved either by direct or circumstantial evidence and conviction can also be based solely on the circumstantial evidence but then it should be tested by the touchstone of law relating to circumstantial evidence. The law of circumstantial evidence has been well settled by the Hon'ble Supreme court in the case of Sharad Birdichand Sarda Vs. State of Maharashtra 1984 CAR 263 (SC) wherein the Hon'ble Court laid the following principles:-
"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be FIR No. 678/09 14 of page 28 explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
9. The decision of Hon'ble Supreme Court in Aftab Ahmad Ansari Vs. State of Uttranchal, 2010 (1) R.C.R (Criminal) is a timely reminder of the above mentioned requirements in the following words:-
"In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact must be proved individually and only thereafter the court should consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of the guilt. If the combined effect of all the facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts, by itself/themselves, is/are not decisive. The circumstances proved should be such as to exclude every hypothesis except the one sought to be proved. But this does not mean that before prosecution case succeeds in a case of circumstantial evidence alone, it must exclude each and FIR No. 678/09 15 of page 28 every hypothesis suggested by the accused howsoever extravagant and fanciful it might be."
10. Prosecution is mainly relying on the testimony of PW-3 Smt. Shakuntala. She is the sister in law (Nanad) of deceased Sunita. She deposed that Sunita used to reside with her husband Narender in her neighbourhood. They had two children namely Abhishek, aged about 12 years and Vivek, aged about 10 years. Earlier, she used to work in a TV company at Noida but had to leave the job as the company was closed. Thereafter, Sunita opened a grocery shop at her house. She stated that accused did not use to do any work and was in the habit of drinking heavily and used to beat Sunita and take away money from her. On 11.11.2009 at about 3.00 pm while she was sitting in her neighbourhood, a neighbourer of Sunita came and informed her that Narender was beating Sunita. She hurriedly rushed to her house and saw that Narender was beating Sunita with a kanni (a tool used by mason to plaster the wall having a wooden handle and iron blade) on her head. She returned to her house and took her daughter Kavita with her to the house of Sunita. On reaching there, she found that Sunita was lying on the floor in a pool of blood and Narender was not present there. On checking, she found Sunita dead. She also found that there were deep cut marks on her neck and backside of her shoulders. Her daughter made a call to the police at 100 number from her mobile phone. Police came at the spot and took Sunita to LBS Hospital. She also accompanied her to LBS Hospital. In the hospital, doctor declared her "brought dead". She gave statement Exbt. PW-3/A to the police. In cross examination, she stated that there are two rooms and a big hall at the ground floor. The hall is given on rent to a book seller who used it as a FIR No. 678/09 16 of page 28 godown. Sunita used to reside in the third room on the ground floor. The other two rooms were under the tenancy of one Rajender and his brother. At the time of incident, wife of Rajender was present in the room but she did not come to know about the incident. She further stated that at the first floor, other tenants were there. She stated that the distance between her house and the house of Sunita was about 100 yards and it takes 2-3 minutes from her house to reach the house of Sunita. She stated that white wash was going on in the room of the deceased. She stated that the noise coming from the house of Sunita could not be heard at her house. She stated that on the day of incident, accused was beating Sunita since morning and she had sent Abhishek to her house. She further stated that Poonam @ Purnmia, who was residing in the neighbourhood of Sunita, came to her and told her that accused was beating Sunita. According to her, her daughter made a call to the police from the mobile phone of Poonam. She further stated that Bhagwat Katha was going on in the temple behind the house and the loud speaker was fixed due to which, the people did not hear the sound of quarrel. She stated that she did not try to intervene when she saw accused beating Sunita as she did not use to talk with Narender. She stated that she does not know if the boy named Deepak used to reside in a room in the same house at the first floor. However, she denied that because of Deepak, there used to be quarrel between accused and deceased Sunita. According to her, Sunita had shifted to this house only one year back but they used to quarrel since the beginning of their marriage. She admitted that accused was having a shop at Kotla Village which he sold to her Devar Madan Singh for a sum of Rs. 60,000/-. She denied that Madan had not paid the entire consideration amount for the purchase of shop to accused Narender. She denied that FIR No. 678/09 17 of page 28 Sunita received injuries on account of fall on the bricks lying under the stairs.
11. It has been submitted by the learned Amicus Curiae on behalf of the accused that PW-5 Smt. Purnima Sharma was the first one to reach the spot. She did not see the accused beating Sunita. She did not find the accused at the spot even on her return at the spot from the house of PW-3. It is thus argued that the testimony of PW-3 is contradictory to the testimony of PW-5 and it is improbable that PW-3 saw the accused beating Sunita. The learned APP has however argued that PW-5 has been declared hostile as she had deposed falsely having been won over by the accused and therefore no reliance can be placed on her testimony.
12. Accused has taken the plea that Sunita sustained injuries due to fall on the bricks. Following suggestions were given to PW-6 Shyam Singh in cross examination:-
"It is wrong to suggest that Sunita was maintaining illicit relationship with Deepak and on the date of incident, Deepak and Sunita had quarreled and accused pushed Sunita by being offended due to their intimacy and due to this reason Sunita fell down on the bricks and sustained injuries."
13. By virtue of the aforesaid suggestions, accused admits his presence at the spot at the relevant time. Thus, the presence of accused at the house at the relevant time is not disputed and therefore testimony of PW-3 Shakuntala regarding the presence of accused cannot be disbelieved FIR No. 678/09 18 of page 28 on the ground that the same does not find corroboration regarding the presence of accused at the spot from the testimony of PW-5.
14. Admittedly, PW-3, PW-4, PW-6 and PW-10 are the close relatives of the deceased. It was therefore quite natural for PW-3 to rush to the scene of occurrence after hearing about the same from Smt. Purnima Sharma (PW-5). The presence of PW-3 at the spot is therefore natural. Merely because PW-3, PW-4, PW-6 and PW-10 are the relatives of the deceased, shall not mean that they are interested witnesses. In the case of Gangadhar Behera and others Vs. State of Orissa AIR 2002 Supreme Court 3633, the Hon'ble Court held that relationship is not a factor to affect the credibility of a witness and foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
15. The learned Amicus Curiae has argued that in cross examination, PW-3 stated that she did not try to intervene when she saw accused beating Sunita. It is argued that the conduct of PW-3 is not natural, she being the relative of accused and deceased, should have made an effort to save Sunita rather than going to her house to call her daughter and therefore on account of this reason, the presence of PW-3 at the spot seems to be doubtful. In the case of Main Pal and another Vs. State of Haryana and others AIR 2004 Supreme Court 2158, the father of the deceased on seeing his son being attacked, left the spot and did not return for long period but the Hon'ble Court held that per se this is not a determinative factor to throw out otherwise cogent prosecution evidence FIR No. 678/09 19 of page 28 because every person cannot act or react in a particular or the same way. On the spot, his reaction in a particular way has to be viewed in the totality of mental set up of person concerned and the extent and nature of fear generated. In the present case, there is evidence that accused used to quarrel and beat his wife. There is evidence that on a previous occasion on 05.07.2010, accused had beaten Sunita so much so that MLC bearing No. 8275/07 Exbt. PW-20/A was prepared and a kalandra under Section 92/93/97 D.P. Act was filed in court by PW-19 ASI Pyare Lal. On the medical examination of accused, it was found that he was under the influence of liquor and injuries on the person of Sunita were found to have been caused by blunt weapon. Thus, this was not for the first time that accused had beaten Sunita under the influence of liquor. PW-3 might not have anticipated that accused would kill her and therefore for this reason she might not have intervened in the quarrel. Another reason why she did not intervene was that she was not on talking terms with Narender. Hence merely on account of the reason that PW-3 did not intervene in the quarrel, cannot be a ground to doubt the testimony of PW-3.
16. PW-3 Shakuntala (Nanad), PW-4 Abhishek (son) and PW-6 Shyam Singh (brother) have stated that accused was not doing any work or was irregular in his work and used to consume liquor and quarrel with Sunita. He was not taking care of his family and used to demand money for consuming liquor. PW-3 saw accused beating Sunita with kanni which was recovered from the spot. PW-4 has stated about a previous incident when on the day of Diwali, accused had hit him with Lota (a utensil for storage of water) on his head. He was then taken to doctor and was given stitches. As per court observation, there was a scar of around two inches in length on FIR No. 678/09 20 of page 28 the head of PW-4. The testimonies of PW-3, PW-4 and PW-6 are straight forward and cogent and there is no reason to disbelieve them.
17. PW-3 and PW-6 have admitted in cross examination that Madan Singh, brother of deceased, had purchased the shop of accused for Rs. 60,000/- but they denied that he was not paid full consideration of the shop. Accused has taken the plea that he was not paid full consideration amount and therefore to avoid the said payment, PW-3 and PW-6 have got the accused falsely implicated in connivance with Madan Singh. However, accused did not lead any evidence to prove his defence and therefore his defence is not acceptable.
18. It is in evidence that accused and Sunita used to reside in a small room on the ground floor of the house. It is also in evidence that at the time of occurrence, both the children of the deceased were present at the house of PW-3. The murder took place near the staircase of the house and as already discussed, accused was present there at the time of occurrence but he has failed to render any satisfactory explanation about the death of the deceased or about the injuries on her person. In the case of Trimukh Maroti Kirkan Vs. State of Maharashtra 2007 Crl. Law Journal 20, the Hon'ble Court held that if an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in the circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, is FIR No. 678/09 21 of page 28 insisted upon by the court. It was further held that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. The Hon'ble Court further held that it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Where the offence like murder is committed in secrecy inside the house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. In the present case, prosecution has discharged the initial onus of proving that accused and deceased were present alone at the house at the time of incident. Accused tried to offer explanation by stating that Deepak and Sunita had a quarrel on the day of incident and that when he pushed Sunita having been offended due to their intimacy, she fell down on the bricks and sustained FIR No. 678/09 22 of page 28 injuries. The postmortem report proves that there were as many as 12 external injuries on the body of deceased. It is improbable that due to fall on the bricks by simple push, deceased received so many injuries as found on her person. Accused did not cross examine the doctor for his opinion as to whether injuries No. 1, 3 & 4 which were the ultimate cause of death, were possible by the fall on the bricks. Thus, the explanation offered by the accused is not satisfactory and is therefore not acceptable.
19. It has been held in catena of judgments that in a case based on circumstantial evidence where no eye witness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. Postmortem report was put to the accused at the time of recording of his statement under Section 313 Cr. PC but he simply stated that it was incorrect and thus did not avail the opportunity to explain the presence of injuries on the body of the deceased.
20. The incident took place on 11.11.2009. PW-3 deposed that when she returned at the spot with her daughter Kavita, she found Sunita lying on the floor in a pool of blood but accused was not present there. PW- 28, Inspector Dinesh Kumar Sharma, PW-18 HC Rajender Kumar and PW- 21 Constable Latafat Ali have proved the arrest of accused on 24.12.2009 on the basis of secret information. It is thus proved that accused left the house immediately after the occurrence and absconded and could be arrested after about one and a half month. Even if the defence of the FIR No. 678/09 23 of page 28 accused that deceased received injuries by a simple push on the bricks is accepted, he has not explained as to why he left the house instead of taking his wife to the hospital or reporting the matter to the police. Absconding is a tell tale circumstance of a guilty man unless the accused can offer a reasonable explanation for his absence for several days from his normal place of residence or at place where he is normally expected to be. The conduct of accused in absconding immediately after the occurrence of the offence is a relevant circumstance and is an additional link in the chain of evidence.
21. The learned Amicus Curiae has argued that in a case of circumstantial evidence, the proof of motive is of utmost importance and in this case, prosecution has failed to prove the motive for murder. The learned APP, on the other hand, has argued that motive for the murder was refusal of deceased to give money demanded by the accused.
22. Motive, which is an emotion that impels a man to do a particular act, need not necessarily be proportionally grave to commit graver crimes. Many murders are committed without any known or prominent motive and motive often is not discovered. It is not sound to suggest that no criminal act can be performed unless motive is proved. In some cases, it may be difficult to prove motive by direct evidence, while in some other cases, inferences from circumstances can help in discerning motive. Sometimes, motive proved may be a weak one and not grave enough to commit a grave crime. That by itself is not sufficient to lead an inference against the prosecution. In this case, PW-4 Abhishek categorically deposed that his father used to drink liquor and demand money from his mother and that on FIR No. 678/09 24 of page 28 11.11.2009, white wash was going on at their house and that at about 6.00 am, they were putting household articles from their room beneath the staircase. His father demanded money from his mother and on her refusal to give money, he started beating his mother due to which left arm of his mother got swollen. He further deposed that on at 12.00 pm, his mother asked him to go to the house of his Mama otherwise his father will beat him also. PW-3 Shakuntala also stated in cross examination that Abhishek had told her that since morning, accused was beating Sunita on that day. The cross examination of PW-3 and PW-4 has not yielded anything which may help the accused. Thus, it is proved that on the day of incident, accused was demanding money from Sunita and on her refusal, he was beating her since morning. Hence, the refusal to meet his demand of money was the motive for the commission of the murder and thus, prosecution has been able to prove the motive behind murder.
23. Prosecution is also relying on the recovery of blood stained clothes of accused from his possession. PW-28 Inspector Dinesh Kumar Sharma stated that on 24.12.2009 on the basis of secret information, accused was apprehended and a black colour pant and a blue colour shirt were recovered from his bag. Constable Latafat Ali (PW-21) and HC Ajender (PW-18) have corroborated the arrest and recovery of pant and shirt from the possession of the accused. The clothes of the accused were sent to FSL. FSL result Exbt. PW-28/F proves the presence of blood on the pant and shirt of the accused. The serological report proves that blood was of human origin and of `B' Group. The blood group on the clothes of accused matches with the blood on the kanni, dupatta, sleeper, wooden phatta and the blood lifted from the spot. In his statement under Section FIR No. 678/09 25 of page 28 313 Cr. PC, accused merely denied the recovery of clothes. No explanation has been forthcoming from the accused on the said recovery. Non- explanation of blood stains on the clothes recovered from accused in the absence of injuries on his person is an incriminating circumstance which goes against the accused. The prosecution case is further buttressed by significant recovery of hammer at the instance of the accused. PW-28 Inspector Dinesh Kumar Sharma deposed that upon his arrest on 24.12.2009, accused gave disclosure statement Exbt. PW-18/G and on 25.12.2009, he got recovered a hammer from a bush near the rainy well. In cross examination, PW-28 denied that public persons were present around the rainy well in the noon time. He stated that the bushes were of different sizes. He denied that there was passage for public to pass through those bushes. PW-18 HC Ajender stated that there is no thorough fare near the bushes. He denied that the hammer was visible from a distance. Besides Constable Latafat Ali and HC Ajender, PW-10 Mahender Pal Singh, nephew of the deceased is also the witness of recovery of hammer at the instance of the accused. Mahender Pal Singh deposed that on 25.12.2009 at about 12.00 noon or 1.00 pm while he was waiting for his colleague near Akshardham Flyover, a police Gypsy in which accused, who is his Phoopa, was sitting along with some policemen passed from there. The police Gypsy stopped and the policemen in the Gypsy asked him to join the investigation and he willingly joined the same. He also stated that accused led the police party to nearby bushes and got recovered a hammer on which "Pushpa Super" was written. In cross examination, he stated that accused was leading the police party. He stated that some papers were prepared at the spot which were signed by him. The learned Amicus Curiae has argued that PW-10 is not a natural witness. He is the planted witness FIR No. 678/09 26 of page 28 of the police and he has deposed against accused at the instance of his uncle who had usurped the shop of the accused. However, I find no basis for coming to the conclusion that PW-10 is a planted witness or that he has deposed because of any motive or ill-will against the accused. There is no reason to disbelieve his testimony. Thus, prosecution has been able to prove the recovery of hammer at the instance of the accused. Dr. Vijay Singh, who conducted the postmortem, has stated that injuries No. 1 to 4 on the body of the deceased could have been caused by the said hammer.
24. Hence, in view of my aforesaid discussion, I find that prosecution has been able to prove following circumstances:
(i) Accused was demanding money from Sunita and on her refusal, she was being beaten by accused since morning on 11.11.2009.
(ii) PW-3 saw the accused beating Sunita with kanni.
(iii) Recovery of blood stained kanni from the spot.
(iv) Motive for the murder was non-fulfillment of demand of money by Sunita.
(v) Recovery of blood stained clothes of accused. (vi) Recovery of hammer at the instance of accused. (vii) Opinion of the doctor that injuries No. 1 to 4 could have been caused by the said hammer. (viii) Murder near the staircase of the house where accused and
deceased were residing, absence of satisfactory explanation from the accused as to the cause of death.
(ix) Accused leaving the house and absconding and offering no explanation in his statement under Section 313 Cr. PC.
FIR No. 678/09 27 of page 28
25. In my opinion, the aforesaid circumstances are conclusive in nature. There is no gap left in the chain of evidence and the proved circumstances are consistent only with the hypothesis of the guilt of accused and totally inconsistent with his innocence. I therefore hold the accused guilty and convict him under Section 302 IPC.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE:FTC/E-COURT:KKD;DELHI.
ANNOUNCED IN THE OPEN COURT ON 25.08.2012.
FIR No. 678/09 28 of page 28