Delhi District Court
Singh And Anothers vs . State Of Haryana : Air 2009 Sc 378 : 2008 ... on 9 November, 2009
1
IN THE COURT OF SH. DHARMESH SHARMA, ASJ-II,NORTH, DELHI.
SESSIONS CASE NO: 19/2006
FIR No: 189/06
P.S. Timar Pur
U/S: 302/506/34 IPC
DATE OF INSTITUTION : 17.7.2006
DATE ON WHICH JUDGMENT
HAS BEEN RESERVED : 26.10.2009
DATE ON WHICH THE JUDGEMENT HAS
BEEN DELIVERED: 05.11.2009
STATE
Versus
Mohd. Akram @ Vicky
s/o Mohd. Rashid Qureshi
r/o 7/14, Gali no. 6,
Sangam Vihar,
P.S. Timar Pur, Delhi.
APPEARANCE
Mr. Maqsood Ahmed, Ld. APP for the state.
Ms. Kanchan Diwan and Mr. V.K. Jain, Advocates Amicus
Curiae for the accused.
5.11.2009
JUDGMENT
1. There is a well known quote attributed to John Lyly, who was a Renaissance English Poet and Play Writer in the 16th Century "The rules of fair play do not apply in love and war". This quote inspired many others modifying it to say "Everything is fair in Love and War". What the original 2 writer and others literally meant was that some kind of deception may be practiced in a war to win over the opponent or in the case of love so as to win the heart of the other. What they never meant was to indulge in violence in case of love and go to the extent of killing the near and dear of his/her beau so as to possess the other at all costs. That is how I can summarize the factual background of this case leading to arraignment of the accused Mohd. Akram @ Vicky s/o Mohd. Rashid Qureshi now aged 24 years, by the prosecution for committing offence u/s 302/506/34 IPC.
Facts
2. The case of the prosecution is that on 18.4.06 a PCR call was received at P.S. Timar Pur at about 1.52 p.m. recorded vide DD no. 16/A Ex. PW35/A to the effect that "a lady has been stabbed by some man in a flat, III storeyed, Timar Pur near Mother Dairy. PW35 ASI Karan Singh was deputed to investigate who along with PW9 Const. Mohan Lal reached Quarter/Flat no. 154, Multi-storied, Ist Floor, Timar Pur, where he came to know that the injured lady had been shifted to Trauma Centre by a PCR Gypsy. Leaving PW9 Const. Mohan Lal at the spot, PW35 ASI Karan Singh reached Trauma Centre where MLC Ex.25/A of patient/injured Smt. Ansuiya Bisht w/o Raghubir Singh, was obtained who was 'not fit' for making statement.
3. However, statement of daughter of the patient namely Km. Sarita who was present in the hospital was recorded, Ex. PW1/A to the effect that "she is residing in quarter no. 154, Multi-storied, Type III, First Floor, Timar Pur along with her parents and brother, and for about a year, she used to travel in a bus on route no. 108 to Shastri Nagar, Sarai Rohilla to learn short-hand and during this period, she came to know one boy Vikcy which acquaintance developed into a friendship ; that Vicky had been insisting to marry her for sometime and she had discussed his proposal with her parents but they refused ; that she had informed about decision of 3 her parents to Vicky which had enraged him and once he came to their house and abused her mother and also threatened her with death in case she came in between him and her daughter ; that police was informed about the incident and police was on a look out for him but he could not be traced".
4. She then further informed in her statement Ex. PW1/A that "on 18.4.06 she was present in the house with her mother when somebody rang the door bell at about 1.30 p.m. and when her mother opened the door, Vicky was present with a knife in his hand and there was another boy who was of the same age and height as Vicky ; that as soon as Vicky saw her mother, he started abusing her and the other boy exhorted him not to waste time and said "MAR SALI KO AUR BHAG" ; that accused Vicky then started stabbing her mother on her abdomen and hands and she (i.e. Sarita) raised alarm and the accused as well as his accomplice ran away from the spot ; that somebody informed the police and the police Gypsy arrived and brought her mother to the hospital" It is suffice to state that later on the boy Vicky was identified as accused Mohd. Akram during the investigation as well as during the trial of this case.
5. On recording of the said statement, PW35 I.O. ASI Karan Singh came to the place of occurrence and made rukka/endorsement Ex. PW35/B and sent the same to the P.S. Timar Pur through Const. Mohan Lal for registration of FIR Ex. PW30/C u/s 307/34 IPC. Suffice to state that the Crime Team was called to the spot, PW35 ASI Karan Singh recorded statement of husband of the injured lady and other witnesses. The case of the prosecution is that accused was then arrested by the police on 20.4.06 from his residence at Sangam Vihar vide Memo Ex. PW1/C and Personal Search Memo Ex. PW1/D and pursuant to his Disclosure Statement Ex. PW1/H, the knife used in the incident Ex. P-1 was recovered from bushes near quarter no. F-943, Timar Pur, Delhi. Unfortunate, as it 4 may seen, the injured Smt. Ansuiya Devi succumbed to her injuries on 29.4.06 even before her statement could be recorded and thereafter postmortem on her body was conducted. The case in question was converted to Section 302/34 IPC and investigation was taken over by PW39 Inspector H.S. Rawat, the then Additional SHO, P.S. Timar Pur. During the investigation, it came out that accused had been communicating with PW1 Sarita from Mobile No. 9899739092 and also from Mobile no. 9213957297 and the call records were obtained by him. On completion of investigation, the present chargesheet was filed against the accused but the other co-accused who was named as Monu could not be traced as his identity and whereabouts could not be established by the police.
Charge
6. It would bear repetition that the accused was charged for committing an offence u/s 506 IPC and primarily for committing murder of Smt. Ansuiya Devi w/o Raghubir Singh along with accomplice Monu u/s 302/34 IPC. Accused pleaded not guilty and claimed trial.
Prosecution Evidence:
7. The prosecution in order to prove its case examined as many as 39 witnesses. The main witnesses for the prosecution were PW1 Smt. Sarita Bisht, her father PW2 Raghubir Singh Bisht and her brother PW3 Sandeep Bisht (a distant relative of the family). That apart PW4 was Vikas Singh Rawat, nephew of the deceased lady and PW7 Harinder Singh Bisht. While I would dwell on their evidence later on in the judgment, it may be indicated that PW4 and PW7 deposed that after Smt. Ansuiya was admitted in the hospital, the accused had a conversation with PW1 Sarita on her mobile and boasted that he had killed her mother since he was in love with her and wanted to marry her ; PW16 was Ranbir Singh Bisht (Jeth, elder brother in law of deceased) who deposed that Smt. Ansuiya Devi told him in the presence of her husband on 29.4.06 that she had been 5 stabbed by accused Vicky. PW19 was Y.S. Mehta, a retired government servant and resident of flat no. 153, Type III, Timar Pur. The witness was residing at the ground floor just beneath the place of occurrence and it is brought out in evidence that injured/deceased Ansuiya after being stabbed probably tried to save herself from the clutches of the offender and jumped off the balcony of the first floor and landed on the ground floor and this witness deposed that he immediately called the police from 100 number from his phone and Police removed the injured lady to the hospital.
8. Some other public witnesses were :PW15 was Rakesh Kumar, Manager in Rajindra Service Station, Sham Nath Marg. He deposed that accused Akram was working at their service station from 5.6.05 to 1.4.06 and he had resigned from such services on 15.4.06.
9. On mobile connections were examined :
10. PW8 was Sh. Praveen Jain. He was a shopkeeper dealing in mobile phone connections at Ajad Market. It appears that mobile connection TATA Indicom no. 9213957297 was issued to one Smt. Bimla Devi r/o 1773, Government Quarters, Timar Pur from his shop but he denied that the photocopy of the application form mark 8-A bears the stamp impression of his agency. Prosecution case is that this mobile connection was being used by the accused ; PW17 was Kulwant Singh Dogra, Executive in TATA Indicom. He produced call records in respect of mobile no. 9213957297 running into three pages vide Ex. PW17/A ; PW20 was Sh. Bimla Devi. Suffice to state that she denied subscribing to mobile connection no. 9213957297 and even denied knowing any boy by the name of Vicky @ Akram ; PW21 was R.K. Singh, Nodal Officer from Bharti Airtel Ltd.. He produced call record of mobile connection no. 9910062346 for the period 20.3.06 to 19.4.06 Ex. PW21/A running into 14 pages. The prosecution case is that this mobile was in use by PW1 Sarita and the accused was communicating with her on said mobile connection and 6 PW29 was Sh. Gulshan Arora, Nodal Officer from Vodafon Ltd. He produced the call record of phone no. 9899739092 running into seven pages Ex. PW29/B. Prosecution case is that this mobile was being used by the accused up to 5.4.06.
Medical and Expert Witnesses :
11. PW25 was Dr. Karan Singh, Medical Officer from Shusrut Trauma Centre. He deposed that he medically examined the patient Ansuiya aged 50 years old on 18.4.06 and proved the nature of injuries sustained by her in the MLC Ex. PW25/A ; PW26 was Dr. Vinod, Assistant Professor, Department of Forensic Medicines, M.A.M. College, New Delhi. He conducted postmortem on the body of the deceased Ansuiya Devi and proved his detailed report Ex. PW26/A certifying that the cause of death was "septicemia due to peritonitises upon multiple infected injuries to the abdomen". He also proved his report/opinion regarding the nature of weapon used Ex. PW39/K ; PW27 was Rajesh Kumar, Record Clerk from Shusrut Trauma Centre. He produced the treatment record of the deceased Ansuiya Devi during the time she remained hospitalized which are Ex. PW27/A and B ; PW28 was Dr. Shailesh Kumar from Department of Specialized Surgery in Shusrut Trauma Centre. He proved his report Ex. PW27/A regarding the post operative procedures applied by him for medical treatment of the injuries sustained by the injured Ansuiya. He also proved certain remarks on the MLC of injured which are Ex. PW28/A. It is pertinent to mention here that he deposed that he refused to give any opinion regarding whether or not injuries were caused by the knife in question since it was a matter for the Forensic Department ; PW37 was Sh. Parsu Ram, Sr. Scientific Officer, Physics, FSL, Rohini, Delhi. He deposed that on 19.7.06 he received four sealed envelopes in the present case which were examined by him and he proved his report Ex. PW37/A on which I shall dwell later on in this judgment ; PW38 was Sh. V. Shankar 7 Narainan, Sr. Scientific Officer, Biology, FSL, Rohini, Delhi. He proved hs serological report in regard to certain parcels sent to him for examination by the I.O. and the report is Ex. PW38/A and PW38/B. Police Witnesses :
12. PW5 was HC Naresh Kumar. He was a member of Crime Team who on 18.4.06 visited the place of occurrence and at the instance of I.O. took 13 photographs which are Ex. PW5/A-1 to PW5/A-13 and proved the negatives Ex. PW5/B ; PW6 was SI Dalip Kumar Shukla. He was also a member of the Crime Team who deposed visiting the place of occurrence and investigating the crime scene and proved his report Ex.PW 6/A ; ; PW9 was Const. Mohan Lal who was associated in the initial investigation of this case on 18.4.06 with PW35 ASI Karan Singh ; PW10 was Const. Sanjeev Kumar. He was Duty Officer at Trauma Centre and deposed that at about 2.15 p.m. PCR brought injured lady Ansuiya to the hospital who was examined by the doctors. He deposed that the doctor prepared a pullanda of the blood stained clothes of Ansuiya and sealed with the seal of 'STC' which was handed over to I.O. along with sample seal vide seizure memo Ex. PW10/A ; PW11 was HC Ram Phal Yadav. This witness deposed about receiving DD no. 24 A on 5.4.06 on a complaint by PW2 Raghubir Singh Bisht that his daughter is being threatened on mobile by one Vicky. He deposed that he investigated the matter and even had a talk with accused Mohd. Akram. He also deposed that on 18.4.06 on receiving the information regarding incident, he reached the Trauma Centre and met PW1 Sarita and her brother PW3 Sandeep. He deposed that later he was associated in the arrest of the accused on 20.4.06 from his residence at Sangam Vihar ; PW12 was HC Jagdish Chander. He was Duty Officer at P.S. Timar Pur on 5.4.06. He deposed recording DD no. 24A Ex. PW12/A at about 10.20 p.m. incorporating information from one Const. Harish of PCR regarding threatening of a girl ; PW13 was SI Mahesh Kumar, 8 Draftsman from crime branch. He deposed that on 18.5.06, he prepared the computerized scaled site plan Ex. PW13/A at the instructions of the I.O. ; PW14 was Const. Purshotam Kumar. He deposed that on 30.4.06, he was associated in taking the body of deceased Ansuiya to Mortuary for the purpose of postmortem ; PW18 was Const. Tribhuvan. He deposed that on 14.6.06, he obtained eight sealed pullandas and two sample seals from MHC(M) P.S. Timar Pur and took it to FSL Rohini where it was deposited for examination ; PW22 was Const. Chote Lal. He was associated during the investigation on 20.4.06 which led to the arrest of the accused and also recovery of some blood stained clothes which were allegedly worn by the accused at the time of occurrence besides the knife as per disclosure statement of the accused ; PW23 was Const. Ashok Kumar. He was also associated in the investigation of the case on 20.4.06 which led to the arrest of the accused, recovery of blood stained clothes and knife ; PW24 was HC Nanu Ram. He was working as MHC(M) at P.S. Timar Pur and he deposed receiving the case property from the I.O. on 18.4.06, 20.4.06 and later on 1.5.06 and making requisite entries which are Ex. PW24/A to PW24/F including the entries whereby the case property was sent to FSL, Rohini and later received back by him ; PW30 was HC Shailender. He deposed registering FIR Ex. PW30/A u/s 307/34 IPC on the basis of rukka brought by Const. Mohan Lal and he proved his endorsement on the same Ex. PW30/B ; PW31 was Inspector Darshan Singh. He was handed over investigation on 24.4.06 during which time his request for police remand was turned out by the Court and he deposed that on receiving information regarding death of injured lady on 29.4.06, he handed over the investigation to Inspector Hari Singh ; PW32 was SI R.B. Joshi. He was involved in the investigation of the case on 20.4.06 and deposed that accused was arrested by them at the pointing out of witness Sarita. I shall dwell on his evidence later on in the judgment ; PW33 was Const. Harish 9 Singh. He was on duty in Police Control Room on 5.4.06 and stated that at 22.06 hours a call was received from one R.S. Bisht through phone no. 23817617 from flat no. 154, Type III, Timar Pur that someone was threatening a girl from mobile no. 9899739092 and he proved the PCR form Ex. PW33/A ; PW34 was Const. Manoj Kumar. He deposed that on 20.6.06 he took a sealed parcel containing TATA Indicom mobile from MHC(M) on the instructions of the I.O. sealed with the seal of 'HSR' and got it examined through officers of TATA Indicom at Mathura Road and brought the same back with its report and given to MHC(M) ; PW35 was initial I.O. ASI Karan Singh ; PW36 was HC Surender Singh. He proved the PCR Form Ex. PW36/A regarding information received at 13.39 hours on 18.04.2006 of someone having stabbed a lady at Multi-storied, Type III quarters, Timar Pur. Lastly, the Investigating Officer Inspector H.S. Rawat was examined as PW39.
Statement of Accused
13. On the close of the prosecution evidence, the entire incriminating facts and circumstances in evidence against the accused were put to him as per Section 313/281 Cr.P.C. Suffice to state, he admitted that he was in love with girl Sarita but he denied that he wanted to marry her and rather stated that it was he who rejected the marriage proposal. He denied his complicity in this case and denied threatening the girl Sarita from mobile no. 9899739092 and also from mobile no. 9213957297. He however, stated that mobile set with such numbers were provided to him by Sarita sometime in September - October 2005 and she had completed the formalities while subscribing the said phones in the name of her Bua (aunt) Smt. Bimla Devi. He denied that he was arrested on 20.4.06 and rather stated that he himself surrendered before the police on 19.4.06 since police had detained his mother in the night. He stated that he was beaten up by the brother and maternal uncle of PW1 Sarita at 10 the P.S. He afforded another explanation in his defence to the effect that while he was in love with Sarita, he came to know that she was also having an affair with another boy Anupam residing in the same area. He stated that he could not tolerate the same and declined to marry her as he also found that Sarita was not a girl with good moral character and she used to entice boys with her good looks and trap them in the process as well. He stated that he had spend lot of money on the girl, giving her expensive gifts including jewelery without knowledge of his parents. He stated that since he had indicated the girl that he had no intention to do anything further with her, she met with her Jija (brother-in-law) in Park Avenue Restaurant at Kingsway Camp and there she and her Jija blackmailed him and demanded some money or otherwise threatened to disclose everything to his parents. He also stated that the murder was committed by another boy Anupam but he was let of by the police after taking huge bribe.
14. In his defence, he examined his brother-in-law Jija DW1 Mohd. Rafiq. In brief, this witness stated that accused was working with him during the relevant time from 1.4.06 to 18.4.06 and on 18.4.06 the accused was at work for the whole day and in the evening his father-in-law called telling him that police was looking for Mohd. Akram and he deposed that Mohd. Akram was brought by him to the P.S. on 19.4.06 and the Police assured him that he would be released after questioning but later he came to know that Mohd. Akram has been falsely implicated in this case. Arguments
15. I have heard Sh. Maqsood Ahmed, Ld. APP for the State as well as Ms. Kanchan Diwan, Ld. Amicus Curiae for the accused. I have also perused the relevant oral and documentary evidence on the record of the case.
Evidence on the Stabbing Incident :
16. PW1 Ms. Sarita Bisht, daughter of the deceased deposed that 11 she was present in her quarter (sic residential flat) with her mother when someone rang the door bell at about 1 or 1.30 p.m. which was answered by her mother finding the accused standing at the door having a knife in his hand who started abusing her mother. She deposed that there was another boy who was standing on one side of the accused who exhorted the accused that "he should not waste any time and kill the lady" ; that on that accused stabbed her mother several times with a knife all over her body. She deposed that she raised noise (sic alarm) and her mother advised her to go inside the house and save herself. She also deposed that during the scuffle, her mother tried to save herself and came on to the balcony and jumped down at the ground floor and the accused along with the other boy ran away from the spot. She proved her statement to the police Ex. PW1/A (contents of which have already been re-produced above).
17. First thing first, so far as the identification of the accused as the main offender is concerned, there is ample evidence on record that PW1 Sarita and the accused knew each other quite well. While in her cross-examination, she denied that she was in any way intimate relationship with the accused, she conceded that she had been meeting with him for a long time so much so that accused proposed to get married with her. Even the version of the accused u/s 313/281 Cr.P.C. is that they had been seeing each other for about a year prior to the incident and he was in love with her. PW1 also testified without any challenge that she discussed the marriage proposal with her parents who refused and when she revealed everything to the accused, he got enraged and once came to their house on an earlier occasion and even abused her mother and threatened to kill her. It is in the evidence of PW2 Raghubir Singh Bisht that his daughter Sarita started receiving threatening calls on her mobile phone no. 9213221317 from mobile of the accused bearing no.
129899739092 and fed up with that they got disconnected the said mobile connection sometimes in the month of March 2006. The circumstances which have been brought on record by the prosecution indicate a build up of emotions of the accused to the present incident. It is in evidence that PW2 subscribed to a new mobile connection bearing no. 9910062346 which was in use by PW1 Sarita and it appears that accused got wind of the new number as well and it is in evidence as per call record of mobile no. 9899739092 Ex. PW29/B that from 27.3.06 to 5.4.06 accused exchanged as many as 102 calls with her on mobile no. 9910062346. It may also be indicated that as per the call record Ex. PW29/B, on 5.4.06, the accused appears to have communicated with PW1 Ms. Sarita Bisht as many as 26 times which also stands corroborated from the call record of mobile no. 9910064346 Ex. PW39/D. At the cost of repetition, this also indicates the build up to the actual occurrence happening on 18.4.09.
18. It is in the evidence of PW1 that when she received the threatening calls on her new mobile no. 9910062346 0n 05.04.2006, the matter was discussed in her family and her father PW2 Raghubir Singh Bisth made a complaint to the police which was recorded on the same day at about 10.20 p.m. vide DD No. 24A Ex. PW12/A. It is in the evidence that such report was investigated by PW11 HC Ram Phal Yadav who deposed that he had a telephonic conversation with the accused Mohd. Akram and advised him to desist from making such threatening calls and also advised him to come to the Police Station. PW11 also testified that accused did not come to the Police Station despite several calls given by him to join the inquiry and on 9.4.06 accused told him that he was going to Nasik and he switched off his mobile phone.
19. In the background of such facts and circumstances brought on record by the prosecution, Ms. Kanchan Diwan, Ld. Amicus Curiae urged that evidence of PW1 that she was present in the house and saw the 13 accused, is not credible and should not be believed. Ld. Counsel urged that PW1 despite seeing the accused with a knife in his hand, did not raise any alarm ; that it is improbable that the deceased instead of trying to save herself, advised her daughter to go inside and save herself. She vehemently urged that incident occurred in a broad day light and it is strange that no one heard or saw anything except PW1. She strongly urged that PW1 had in fact gone to Jhandewalan ( place in Central Delhi near Karol Bagh) with her friend and she reached back home or at the Trauma Centre at about 4 p.m. It was also urged that if the story of PW1 is believed that she was indeed present in the house, how could it be that there were no blood stains on the clothes being worn by PW1 in the face of the fact that there were blood stains all over the wall of the drawing room upto a height of 4-5 feet as per the police witnesses. She also urged that it is not conceivable that the deceased went through the entire length and breath of the quarter/flat and jumped of the balcony.
20. I may say that while the pleas taken are impressive, the same do not cut much ice. It may be seen that the incident occurred on 18.4.06, April month, well into the summer heat and it was about 1.30 p.m. or so. PW1 has deposed in so many words that she raised alarm but no one came to their rescue. The incident occurred in government quarters which are earmarked for Central Government employees and it was a third storeyed flat comprising of kitchen, drawing room, small lobby with balcony, two bed rooms with latrine and bathroom. As per the scaled site plan Ex. PW13/A, as one comes up from the stairs at the first floor, there falls a drawing room adjoining to which there is another entrance from the kitchen side. The portion A is shown as a point where the accused is alleged to have stabbed the deceased. Point C is the place from where PW1 Sarita is shown to have witnessed the entire occurrence. This point 'C' is inside the drawing room where there is passage towards the small 14 lobby. When PW1 states that she had raised alarm what could be gathered is that her female voice must have remained inside the four walls of the accommodation only with probably very little voice emanating outside. If PW1 was behind her mother probably at a distance of about 3-4 feet then when the deceased was stabbed few times by the accused, the question of any blood stains falling on the clothes of PW1 does not practically arise since the blood must have splashed in the front and not backwards. The plea that it is unconceivable that deceased instead of saving herself wanted her daughter to be saved is something which again must be rejected. This only shows the degree of motherly love and affection for her daughter who even while in extreme pain thought of nothing but to save her own child. What PW1 Sarita did was quite natural i.e. to follow the advice of her mother and her own instinct and she went inside the flat/quarter and probably got herself locked in a state of extreme fear so as to save herself from the wrath of the accused. It must have been a huge mental and psychological blow to her seeing what her boy friend was doing to her mother.
21. It may be indicated that PW2 testified that when he reached home, the persons gathered at the spot told him that the deceased while being taken away to the hospital was requesting them to save her daughter Sarita. The factum of deceased falling off the balcony is also not inconceivable since as per the scaled site plan Ex. PW13/A the Type III flat was not a big one and it is very probable that when the accused with his associate ran away from the spot, the deceased in excruciating pain went from point A to point B covering a distance of about 15 steps probably to seek some help by yelling from the balcony but could not do so loosing her balance or in fear jumping off the first floor landing on the ground floor below corroborated by the injuries on her left ankle and right forearm above the wrist in MLC Ex. 25/A. It is also relevant to note that the members of 15 the Mobile Crime Team had examined the place of occurrence and as per report Ex. PW6/A, drops of blood were found in the drawing room, lobby and balcony. In this regard evidence of PW19 Y.S. Mehta resident of flat at ground floor no. 153 assumes significance. He deposed that on 18.4.06, it was about 1.30 p.m. when he heard somebody knocking at the door opening towards the balcony and he found Mrs. Bisht (deceased) lying in a pool of blood who told him that somebody had stabbed her. He deposed that he called the police at 100 number from his telephone no. 55691509 and it is further in evidence that information with the PCR was got recorded about the incident from the said land line number at 13.39 hours vide PCR Form Ex. PW36/A and information was relayed to the concerned P.S. recorded at 1.52 p.m. vide DD no. 16A Ex. PW35/A. It is in the evidence of PW1 supported by PW19 that the broken bangles of the victim were seized by the police from the ground floor marked D in the scaled site plan Ex. PW13/A vide memo Ex. PW1/B.
22. There is further evidence on the record which would fortify the prosecution evidence that PW1 was present at the scene of occurrence at the time of incident. PW35 ASI Karan Singh deposed that he along with PW9 Const. Mohan Lal reached the place of occurrence where he came to know that injured Ansuiya had already been shifted to Trauma Centre by the PCR Van. He deposed that he reached the Traume Centre where MLC of the injured Ansuiya was obtained who was declared unfit for making statement but her daughter PW1 Sarita was present whose statement Ex. PW1/A was recorded. He further deposed that after recording the said statement, he came to the place of occurrence along with PW1 Sarita and from there rukka Ex. PW35/B was sent through PW9 Const. Mohan Lal for registration of the FIR at about 3.30 p.m. As per evidence of PW30, the rukka was received at 3.40 p.m. who proved his endorsement on the same Ex. PW30/B. Ld. APP pointed out the fact 16 without any challenge that Trauma Centre is located about 4-5 k.m. from the place of occurrence at Timar Pur and the Police Station Timar Pur is located about one kilometer or so away from the place of occurrence. What therefore, comes out is that after receipt of information at P.S. Timar Pur at 1.52 p.m. vide DD Ex. PW35/A, the lodging of FIR at 3.40 p.m. cannot be said to be suffering from any case of inordinate delay giving the prosecution witnesses time to tamper with the facts or fill up gaps in their story. The only flaw is that rukka probably should have been sent from Trauma Centre itself but again it has to be borne in mind that the place of occurrence was falling on the way to P.S. Timar Pur.
23. It is further in evidence of PW2 Raghubir Singh Bisht that he along with his son PW3 Sandeep reached Trauma Centre and both of them met PW1 Sarita thereat who told them that she was present in the house and had seen the accused stabbing her mother. This part of evidence of PW2 and Pw3 was not challenged in their cross-examination. The only suggestion that is worth mentioning is the one given to PW1 that she was present at the Jhandewalan with her friend and she had remained their till about 4 p.m. As narrated above, in the face of evidence brought on the record leading to the lodging of FIR such suggestion has no value at all.
Mobile Records :
24. It has been urged by the Ld. Amicus Curiae to the effect that PW1 was a girl of loose character who used to entice young boys with her looks, exploit them and then dump them. It was urged that accused had broken off with PW1 and she was demanding Rs.50,000/- from him or else she threatened that she would reveal everything to his parents. Another story that was put forth was that PW1 was having a love affair with another boy Anupam and it was that boy who had stabbed her mother but was let off after payment of huge bribe to the police and accused has been falsely 17 implicated. On the face of it such arguments are ridiculous and cannot be fathomed. I do not think that in our contemporary Indian society an educated girl would go to the extent of shielding the real culprit who has murdered her own mother and rather implicate falsely another one for the sake of money or some other material or emotional need. The real issue which needs an answer is as to where the accused was during the relevant period of time?
25. First, it may be indicated that the prosecution has brought home the evidence that accused was possessing a mobile set Tata Indicom no. 9213957297 which was recovered at the time of his arrest vide personal search memo Ex. PW1/D on 20.4.06 which was identified during the evidence as such. Accused in his statement u/s 313/281 Cr.P.C. conceded the fact that during the relevant time he had been using two pre- paid mobile connections one bearing no. 9899739092 and the other bearing no. 9213957297. Case of the prosecution is that connection bearing no. 9213957297 was subscribed by PW20 Smt. Bimla Devi from the shop of PW8. Both PW8 and PW20 denied that they had anything to do with such mobile connection. It is in the evidence of I.O. that the other connection bearing no. 9899739092 was in the name of one Sobha Ram who could not be traced and was not active on 18.4.2006. Be that as it may, PW1 was given a suggestion that PW20 Bimla Devi was her Bua and she had availed a mobile connection through her Bua and had given the same to the accused. The accused also in his statement u/s 313/281 Cr.P.C. conceded the fact that such mobile connection had been provided to him by PW1 Sarita who completed the formalities sometimes in September - October 2005. It is but obvious that when the love affair was going well, PW1 helped her boyfriend, the accused to procure such mobile phone connection. The version that he rather broke with the girl than her is not substantiated in as much as no such suggestion was given to PW1 in 18 his cross-examination and this thing has come for the first time in statement u/s 313/281 Cr.P.C.
26. The version of the accused that he had given the mobile set with number 9213957297 to HC Ram Phal on 3.4.06 is also without any evidence. First of all, no such suggestion was given to PW11 HC Ram Phal and secondly it is nobody's case that any complaint was lodged with the police prior to 5.4.06 that the accused threatened PW1 as well as her mother with dire consequences if marriage proposal is not accepted.
27. Perusal of call record of Tata Indicom mobile no. 9213957297 Ex. PW 17/C would indicate that on 18.04.2006 a call was recorded at 8:54:03 lasting 56 seconds and as per location ID it was in the vicinity of Burari a place in North Delhi and at 8:54:13 a call was recorded lasting 56 seconds and as per location ID it was in the vicinity of Railway Station, Old Delhi. Thereafter a call is recorded at 14:05:17 which is made from this mobile to another in the vicinity of tower at Bhajanpura; that at 14:11:19 a call lasting for 150 seconds was received on this mobile in the vicinity of tower at Timarpur, and then at 14:12:29 a call is received on this mobile in the vicinity of tower at Bhajanpura.
28. First thing, in the face of mobile call records evidence of DW-1 Mohd. Rafiq that on 18.04.2006 his brother-in- law accused Mohd. Akram remained with him through out the day working in his shop at Ballabhgarh, Faridabad, Haryana does not appear to be truthful. In view of the mobile record Ex. PW17/C, it appears that DW-1 being an interested witness has deposed falsely in order to shield his brother in law and his alibi falls flat. Secondly, what this Court wishes to point out is that the accused was very much present in the vicinity of Timarpur area soon after the incident. Two things are important here which needs to be understood: First, when a mobile set is in a switch off mode, its location cannot be ascertained. Even when the mobile connection is on it is only when a call is received or made 19 from the mobile that the location ID is recorded through the tower with the concerned Cell Company. Of course, if the mobile is on general surveillance its location can be found area wise but not with pin point precision. Secondly, the call records indicate that two cell towers or relay towers were in picture at Bhajanpura as well as Timarpur. The location of Timarpur which falls in the area of North Delhi is unique because it is near the bank of Yamuna river and in an area which is vastly open without any high rise buildings. What the Ld. APP for the State has explained during the course of arguments is that signals can be caught and be relayed by any of the towers in a range of 4-5 kms depending upon its strength, wind direction, openness of area and so on. Bhajanpura is located at a distance of 4-5 km from Timarpur after crossing over the Wazirabad fly over. What the call record indicates is that accused was not present with DW-1 in Ballabhgarh but somewhere in the vicinity of the place of occurrence soon after the incident. Further call records indicate that he was afterwards present somewhere near Tookmerpur, Shahdara, then again in the vicinity of Bhajanpura and what is of interest to us is that on the same day at 14:52:37 a call is received from the mobile of PW-1 9910062346 on the mobile of the accused 9213957297 lasting for 107 seconds when the accused was with his mobile in the vicinity of Om Nagar, Mohan Nagar, Ghaziabad.
Extra Judicial Confession
29. In regard to the call recorded at 14:52:37, as pointed out above, it is in the evidence of PW-3 Sandeep Bisht that when he was present at the Trauma Centre along with PW-4 Vikas Singh Rawat, his cousin and other relatives, they also heard on the mobile by activating loud speaker mode that the caller claimed himself to be murderer of his mother and threatened if marriage is not performed with Sarita he would kill whosoever comes in their way. PW-4 Vikas Singh Rawat also deposed that when he 20 was present at Trauma Centre along with PW-2 Raghubir Singh Bisht and his son Sandeep and Sarita,( where he had come on knowing about the incident with his Bua Smt. Anusuya), a call was received by Sarita on her mobile in which the caller said that he had killed her mother and he will kill Sarita as he was in love with Sarita and wanted to marry her. PW-7 Harinder Singh also testified that when he was present at Trauma Centre a call was received by Sarita in which caller identified himself as Akram @ Vicky and the conversation was put on speaker mode and the caller was threatening Sarita to kill her as he had also killed Anusuya. PW-1 Sarita Bisht in this regard during her examination also produced her mobile make Nokia 1600 which had speaker phone facility. On the face of it appears that the exact words of the caller had not been deposed by the witnesses. At the same time, what comes out is that the caller was identified by PW-1 as accused who claimed that he had killed her mother as he wanted to marry her and he would not spare those who would come in their way. The defence has argued that call was not made by the accused but by Sarita to the accused. The fact of the matter is that record Ex. PW 17/C indicates that some conversation had taken place with the accused lasting about 107 seconds and it is not material if PW-1 called the accused. Indeed it is a fact that PW-3, PW-4 and PW-7 did not know the accused and certainly could not have identified his voice. At the same time, what comes out is that some conversion took place between the accused and PW- Sarita who was able to identify and contemporaneously reveal that the voice was that of accused Mohd. Akram @ Vicky. I do not see how the conversation heard by the witnesses on that aspect could be doubted which indicates that the accused was paranoid about her lover and wanted to posses her at all costs, particularly when the witnesses were not cross examined in this regard and their version was not challenged.
30. The evidentiary value of Extra Judicial Confession was 21 explained elaborately in a case decided by the Apex Court titled Chatter Singh and Anothers Vs. State of Haryana : AIR 2009 SC 378 : 2008 (10) JT 230 : 2008 (ii) Scale 674. In para 17 and 18 of the said Judgment, the law on confession was explained in the context of Section 21, 24, 25 and 30 of the Evidence Act as under :
(1) Confessions may be divided into two classes i.e. judicial and extra- judicial - Judicial confessions are those which are made before a Magistrate or a court in the course of judicial proceedings -
Extra-judicial confessions are those which are made by the party elsewhere than before a Magistrate or court.
(2) Extra-judicial confessions are generally those that are made by a party to or before a private individual which includes even a judicial officer in his private capacity - It also includes a Magistrate who is not especially empowered to record confessions under Section 164 of the Code of Criminal Procedure.
(3) As to extra-judicial confessions, two questions arise : (i) were they made voluntarily ? and (ii) are they true ?
(4) A confession made by an accused is irrelevant, if the making of the confession appears to the court to have been caused by any inducement, threat or promise.
(5) A confession would be voluntary if it is made by the accused in a fit state of mind, and if it is not caused by any inducement, threat or promise which has reference to the charge against him, proceeding from a person in authority.
(5A) An involuntary confession is one which is not the result of the free will of the maker of it - So where the statement is made as a result of harassment and continuous interrogation for several hours after the person is treated as an offender and accused, such statement must be regarded as involuntary.
(6) Whether or not the confession was voluntary would depend upon the facts and circumstances of each case, judged in the light of Section 24 of the Indian Evidence Act, 1872.
22(7) A confession cannot be used against an accused person unless the court is satisfied that it was voluntary.
(8)Court has to be satisfied, whether when the accused made the confession, he was a free man or his movements were controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession.
(9)An extra - judicial confession , if voluntary and true and made in a fit state of mind, can be relied upon by the court - The confession will have to be proved like any other fact.
(10)It is not open to any court to start with a presumption that extra - judicial confession is a weak type of evidence - It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession - Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused.
31. In the light of the said proposition of law, the accused in his moment of madness about his love for the girl, made a daring confession of his love for the girl and what he had done to her mother and made his intentions clear that the same would be the fate of the family members if they come in his way. The confession was voluntary and made in the circumstances that can not be said to be concocted. Indeed it was made in the presence of witnesses who were interested one so to say but their testimony has a ring of truth around it and it is difficult to discard the same. Ld amicus curie urged that it is inconceivable that accused would be so stupid to make such a confession within such a short time of the incident. Well, it was indeed stupid but the accused had embarked on a violent path and paranoid to possess her at all costs and this confession be seen in 23 that context. It does not belie common sense.
32. It would be interesting to note that a suggestion was given to I.O. PW39 Inspector H.S. Rawat that conversation had taken place between the accused and the girl PW1 Sarita within a hour of the incident. The I.O. was sought to be pinned down on the aspect that though the conversation was heard by all and probably got recorded on the mobile, the memory card was not seized and the voice sample of the accused was not taken by the I.O. Indeed this was serious lapse on the part of the I.O. in the face of admission that conversation was recorded. At the same time this lapse alone on the part of the I.O. would not throw away the entire case of the prosecution.
33. It is also un-controverted evidence of PW7 Harinder Singh that he had an occasion to talk to the accused on 18.4.06 at about 8.30 p.m. and the call record Ex. PW39/D in respect of mobile connection no. 9910062346 read along with mobile call record Ex. PW17/C of no. 9213957297 of the accused would show that conversation lasted for 1217 seconds and it is un-controverted evidence of PW7 that the receiver identified himself as Vicky and told him that he wanted to marry Sarita but her mother Ansuiya was against the marriage of Sarita and PW7 deposed that the accused stated that he was feeling bad about the incident but at the same time he did not repent and insisted to kill the family members in case Sarita is not married with him. This extra judicial confession on the part of the accused within one hour of the incident and later when he had conversation with PW7 Harinder Singh Bisht cannot be ignored and it is one part in the chain of circumstances in evidence against him.
Post Arrest Scenario
34. It is in the evidence of PW-1 that on 20.04.2006 she joined in 24 the police investigation and was taken to Gali No. 6 Sangam Vihar where at her pointing accused was arrested vide arrest memo Ex. PW 1/C and personal search memo Ex. PW 1/D and her evidence was corroborated by PW-11 HC Ramphal Yadav, PW-22 Ct. Chotey Lal and PW-23 Ct. Ashok Kumar. At the cost of repetition, there is no challenge to the evidence of the said witnesses regarding seizure of Tata Indicom Mobile connection no. 9213957297. It was then in the evidence of PW-1 that accused Akram took them to his house in Sangam Vihar from where a blue colour shirt and pant which he was wearing at the time of incident was seized vide memo Ex. PW1/E and the said shirt and pant were identified as Ex. P-3 and P-4. PW-1 then also deposed that accused was brought to the police station and thereafter the accused took them to a place in Timarpur near Quater No. F-943 where inside the bushes he had concealed a knife and the same was recovered having blood stained vide memo Ex.PW 1/F. It is evident that though the recovery was effected from a public place, the place of hiding of such knife was not from an open place and were exclusive to the knowledge of the accused.
35. Much mileage was sought to be drawn by Ld. Amicus Curiae that no public witnesses were joined during said search and seizure and PW-1 was an interested witness. Again, I am not impressed. PW-1 was not challenged about the recovery of Ex. P-3 and P-4 besides the knife Ex. P-1 except for bald suggestions that no such recovery was affected. Similar is the case with the evidence of PW-11 HC Ramphal Yadav, PW-22 Ct. Chotey Lal and PW-23 Ct. Ashok Kumar. There was no serious challenge to the recovery of knife Ex. P-1 and earlier to that recovery of blood stained shirt and pant Ex. P-3 and P-4. I do not see how the police procedure to involve PW-1 in the investigation of the case can be seen with suspicion. After all PW-1 was the main witness who had been present at the time of occurrence and had seen the accused and it was but natural that she was 25 associated in the investigation much to her discomfort when her mother was battling with her life in the hospital. At the same time, there was a bona fide motive to bring the real culprit to book and it cannot be said that being an interested witness her evidence should be discarded.
36. Much mileage was sought to be taken by Ld. Amicus Curiae that no sincere or genuine efforts were made to establish the identity of the other accused named Monu despite the fact that accused Mohd. Akram was on police remand with the police on 25th and 26th April 2006. This indeed is a serious lapse. But again since the role of the accused Mohd. Akram has been clearly established by the prosecution, I do not see how the entire prosecution case can be thrown away because of that lapse. Evidence of PW1 clearly indicate that the accused had come prepared with another and the manner in which they acted indicates that there was a prior meeting of mind and purpose in stabbing the deceased.
37. Much cudgels have been taken on the issue that accused himself surrendered before the police on 19.4.06 which fact was corroborated by DW1 Mohd. Rafiq. I am afraid I am not impressed. Accused was produced after arrest on 21.4.09 before Ms. Nirja Bhatia, Ld. M.M., Tis Hazari and perusal of the order would show that accused had made a grievance that he was severely beaten up in the police lock-up and his signatures were obtained on certain blank papers. The entire version of the accused was recorded by the Ld. M.M. who immediately directed that the accused be sent to the judicial custody and passed direction to hold an inquiry. There is no version in the said order sheet that the accused surrendered on 19.4.06 and unlawfully detained beyond a period of 24 hours contrary to Sections 57 and 167 (1) of Cr.P.C. Such grievance was not made when accused was produced on 25.4.09 before Sh. Ajay Goel, Ld. M.M. Ld. APP for the State rather pointed out that in the statement recorded on 25.4.09 Ex. PW39/A, the accused not only withdrew 26 the complaint for the alleged beating up by the police but also interalia made an admission that his advances had been repelled by the girl/complainant Sarita as he was in love with her and he wanted to teach a lesson to all. At the outset the said admission cannot be considered against the accused. Though such admission was in the nature of a judicial confession but I do not find that the accused was warned by the Ld. M.M. about his constitutional rights that if he makes such a statement it might go against him during the trial. All the same even de hor the said admission, there is ample evidence on record to nail down the accused.
Medical Evidence
38. PW-25 Dr. Karan Singh deposed that on 18.04.2006 he was working as Medical Officer in Sushrat Trauma Centre where he medically examined patient Ansuiya wife of Sh. Raghubir Singh aged about 50 years vide MLC Ex.PW 25/A having the following injuries:-
(i) Four Multiple stab wound over the abdomen mentioned in detail in the report which are :
a) 2.5 x .5 c.m. Over the epigastric region b) 2x.5 c.m. Over the right hypo chondria region c) 2 x .5 c.m. Over left hypo chondria region d) 2 x 5 c.m. Over the gun above the umbilical region. Besides a
small wound at mid axillary area (depth of the wound to be assessed by the surgeon) on the right side.
(ii) Swelling and tenderness over the let ankle joint.
(iii) CLW over the right forearm above the wrist joint.
39. It may be noted that as per Mosby's Medical Dictionary, IInd Addition, Galgotia Publication Pvt. Ltd. 1995, Hypo chondria region connotes a part of the abdomen in the upper zone on both sides of epigastric region and beneath cartleges of the lower ribe. Epigastric region is the part of the abdomen in the upper zone between the right and left 27 hypo chondria region.
40. While PW25 stated that patient was conscious at about 2:15pm, he was not grilled whether the patient was fit to make her statement although it was indicated in the MLC that she was not. The treatment record of the deceased Ex. PW 27/A and PW 27/B was also produced and PW-28 Dr. Shailesh Kumar proved such reports besides deposing about the remarks Ex. PW 28/A that the nature of injuries were opined by him to be "dangerous". The evidence on record goes to show that injured patient Ms. Anusuiya wife of Sh. Raghubir Singh ultimately succumbed to her injures due to septicemia on 29.04.2006 before her statement could even be recorded by the police.
41. I may indicate that there is another lapse on the part of the prosecution in as much no positive evidence has come on the record that any efforts were made to record statement of the deceased from 18.4.06 to 29.4.06. If the medical treatment record of the deceased is seen vis a vis, the death summery Ex. PW39/B it would indicate that there were moments when the deceased was fully conscious and perhaps she could have given her statement. As per death summery Ex. PW39/B, the deceased was taken to Sir Ganga Ram Hospital on 26.4.06 for "hypotenion during dialysis" and she was re-admitted in STC i.e. Shusrath Traume Centre on 28.4.06 and she died on 29.4.06 at about 5 p.m. If the evidence of PW2 Raghubir Singh Bisht and PW16 Ranbir Singh Bisht (Jeth) is believed, on 29.4.06 when the deceased was being taken to LNJP Hospital for dialysis, deceased stated to them that it was Vicky who had stabbed her and she requested them to save her daughter Sarita from him. The witnesses were not questioned their version that anytime before 29.04.2006, the deceased was fit to make her statement.
42. The postmortem report of the deceased was proved by PW-26 28 Dr. Vinod who in his report Ex. PW 26/A certified that the cause of death was septicemia due to peritonitis consequent upon multiple injuries to the abdomen.
43. Ld. Amicus Curiae urged that though the weapon of offence i.e Ex. P-1 was sent to PW-28 he did not give any opinion whether the injuries could have been caused on the patient by such weapon and it was urged that opinion given by PW-26 Dr. Vinod regarding the same Ex. PW- 39/K cannot be relied upon. This plea again has no force. PW-28 Dr. Sahilesh Kumar in his report Ex. PW 28/B indicated that the weapon of offence was sent to him but he advised that it should be sent to forensic expert who alone would be able to give a final opinion. PW-26 also gave an opinion Ex. PW 39/K that the nature of injuries No. 1 to 5 were sufficient to cause death in the ordinary course by individual or collectively. Such injures were as under:
a) Surgical stitched infected wound (laprotomy) 26 cm present over mid front of abdomen with an infected wound 3.5 cm long with advent margins present over middle joint of abdomen placed 1.0 cm above the umbilous.
b) Surgical stitched infected wound, 4.2 long with advert margins present over front of right side of upper abdomen, 1.5cm outer to midline.
surgical stitched infected wound 2.6 cm long with advent margins present over front of right side of upper abdomen, 7.0cm outer to middle and 17.0cm below right middle.
c) Surgical stitched infected wound 4.5 cm long with advent margins present over front of right side of abdomen, 2.0cm from midline and 4.0cm above the umbilicus.
Surgical stitched infected wound 6.0 cm long with advent margins present over zap of mek.
29d) Scabbed sepervting abrasion of size 15.2 cms X 10cm present over back of chest.
e) Surgical stitched infected wound 3.0 cm long with advent margins present over outer back of the right forearm, 4.0 cm above wrist.
44. It is evident that such injuries no. 1 to 5 were almost in the middle portion of the abdomen near the umbilicus which is a vital part of the body and it does not need divine eyes that the injuries were inflicted on vital part of the body and as per the medical expert the injuries were sufficient in the ordinary course of nature to cause death, taken individually or collectively. Further, the nature of injuries reflected in MLC Ex. PW 25/A and also postmortem report Ex. PW 26/A would conclusively suggest that such injures could have probably been caused by use of a knife Ex. P-1, the Khaka of which is Ex. PW 1/F which shows that the blade was having width of 4 cm and length of 24.5 cm. Mere fact that there is no expert opinion that whether such injures could have been caused by Ex.P-1 is hardly of any consequence. It may be reiterated that version of PW-1 has come out unscathed that accused had used a knife and he had repeatedly stabbed her mother on her abdominal parts. To my mind, nothing is left in the realm of any doubt which could help the case of the defence.
45. In this regard we can have reference to the FSL report Ex. PW 37/A where the brassiere, nighty and petticoat of the deceased were examined and it was opined that the cut marks on the nighty portion Ex. Q- 1 to Q-11 could have been caused by the knife Ex. P-1. Further as per the serological report Ex. PW- 38/B the nighty and brassery were having traces of human blood 'B' group i.e same as that of the deceased which were also found on the weapon of offence i.e knife as also blood stained gauze cloth which was taken by the IO from the spot. The said evidence goes to suggest that the injuries described above could have only be possible by a 30 knife in the nature of Ex. P-1.
Final Conclusion :
46. In Final Conclusion, the prosecution has been able to bring home the following facts and circumstances to prove the guilt of the accused beyond reasonable doubt :
i) Accused Mohd. Akram @ Vicky and Pw1 Ms. Sarita were friends and accused was in love with her so much so that a marriage proposal was put forth by the accused which as per PW1 and also PW2 and PW3 was discussed in the family and the proposal was refused which infuriated the accused ;
ii) That the accused persisted with his demands to get married with PW1 Sarita which is borne out from the call details proved on record and on 5.4.06 when accused threatened the deceased mother of PW1 to kill her, the matter was reported to the police. Though PW11 HC Ram Phal started an investigation, the accused avoided to participate in the same ;
iii) That on 18.4.06 sometimes at 1.30 p.m. the accused came armed with a knife along with another accomplice Monu and it is in evidence that as soon as deceased Ansuiya opened the door the accused started abusing her and on the exhortation given by his accomplice, he started stabbing her in the presence of PW1 ;
iv) That the prosecution has been able to prove the presence of PW1 Sarita at the time of incident at the place of occurrence and her evidence is very natural, cogent and reliable ;
v) That the accused was using mobile no. 9213957297 availed by him with the help of PW 1 when they were having cordial relationship and such mobile set was recovered from him at the time of his arrest ;
vi) That as per the mobile call records, the accused within one hour 31 of the incident was very much in the vicinity of Timar Pur area and evidence of DW1 that he was present with him through out the day at Ballabhgarh does not inspire confidence ;
vii) That the accused within one hour of the incident had a talk with PW1 Sarita in the presence of PW3, PW4, PW7 and others and later same day had talks with PW16 and the crux of the conversation is that he admitted that he had done the act of stabbing and again threatened that if Sarita is not married to him, he would do the same to all other family members ;
viii) The Extra Judicial Confession made by the accused to the said witnesses was voluntarily and without any coercion or fear and the version of the witnesses appears to be most cogent, natural and reliable ; ixi) As per medical record i.e. MLC Ex. PW25/A read with postmortem report Ex. PW26/A vis a vis opinion report Ex. PW28/A would show that the deceased was given as many as seven stab wounds on different parts of her body and the injuries no. 1 to 5 described above as per opinion report Ex. PW39/K were sufficient in the ordinary course of nature, individually or collectively to cause death.
x) That the knife Ex. P-1 was recovered at the instance of the accused from a place exclusive to his knowledge having blood stains as per serological report of the same blood group as the deceased and the nature of injuries were such which could have been possibly caused by such knife.
Decision
47. Therefore, in view of the said discussion, the accused is proved to have committed the murder of the deceased and also guilty of criminally intimidating PW1 and her family members to cause their death or grievous injuries. Thus, the accused is convicted for an offence u/s 302 r.w. Section 34 IPC. The accused is further convicted u/s 506 of the IPC. Let he be 32 heard on point of sentence on 9.11.2009.
ANNOUNCED IN OPEN COURT (DHARMESH SHARMA)
TODAY ON: 5.11.2009 ASJ-II, NORTH DISTRICT,
DELHI.
33
SC 19/06
5.11.09.
Present : Mr. Maqsood Ahmed, Addl. Public Prosecutor for the State.
Accused produced from J/C. Ms. Kanchan Diwan, Ld. Amicus Curiae for the accused.
Written submissions are filed by Ld. Amicus Curiae which have been taken into consideration.
Vide my separate judgment of even date, accused is convicted for an offence u/s 302 r.w. Section 34 IPC. The accused is further convicted u/s 506 of the IPC for threatening PW1 and her family members to cause their death or grievous hurt. As requested by Ms. Kanchan Diwan, Ld. Amicus Curiae, let he be heard on point of sentence on 9.11.2009 at 2 p.m. (DHARMESH SHARMA) ASJ-II, NORTH DISTRICT, DELHI.
5.11.09 34 IN THE COURT OF SH. DHARMESH SHARMA, ASJ-II,NORTH, DELHI.
SESSIONS CASE NO: 19/2006 FIR No: 189/06 P.S. Timar Pur U/S: 302/506/34 IPC DATE OF INSTITUTION : 17.7.2006 DATE ON WHICH JUDGMENT HAS BEEN RESERVED : 26.10.2009 DATE ON WHICH THE JUDGEMENT HAS BEEN DELIVERED: 05.11.2009 STATE Versus Mohd. Akram @ Vicky s/o Mohd. Rashid Qureshi r/o 7/14, Gali no. 6, Sangam Vihar, P.S. Timar Pur, Delhi.
APPEARANCE Mr. Maqsood Ahmed, Ld. APP for the state.
Ms. Kanchan Diwan and Mr. V.K. Jain, Advocates Amicus Curiae for the accused/convict.
9.11.2009 ORDER ON SENTENCE Heard on the point of sentence. Perused the record. It is urged by Ms. Kanchan Diwan, Ld. Amicus Curiae for the accused that accused belongs to a very poor family ; that his father is about 55 years old who is bed ridden and they are a family of seven persons. One of the elder sister is married and it is urged that mother of the accused along with one daughter is doing some stitching work to earn their livelihood. The brother of the accused is about 11 years old and studying in school. It is also pointed out that accused is a graduate having done B.A. from SGTB Khalsa College, Delhi University in the year 2002. It is again urged that 35 accused is innocent and he did not commit the murder of the deceased Ansuiya, mother of PW1. Accused is asked whether he wants to say anything further and he states that though he was in love with the girl, later on when he came to know that she is having affairs with other boys as well, he broke up with her on the advice of his family. He also pleads for mercy stating that in the event he is sent to imprisonment for a longer time, there would be no one to take care of his family.
The broad facts and circumstances of the case have already been discussed by this Court in the Judgment dated 5.11.2009 and therefore, the same need not be repeated herein for the sake of brevity. Suffice to state that accused is guilty of having committed murder of deceased Ansuiya by causing such bodily injuries that he knew that were sufficient in the ordinary course of nature to cause death.
What comes in evidence is that accused was definitely in love with the girl i.e PW1 who probably reciprocated his advances but her family members were not willing to accept the marriage between the two. Accused before me is a young and educated boy about 24 years of age. As submitted by the Ld. Amicus Curiae, he is graduate from Delhi University. It is disturbing that he chose the path of violence not only to seek the heart of his lover but also to dominate her and leave her no choice but to tow his line and be his life partner. I really wonder as to how the accused expected to possess the girl after what he had done to her mother. Violence and love are totally incongruous to each other. One may get angry occasionally while in passion or love but certainly under no circumstances violence can be justified. The only aches and pain in love are the heart aches and again it certainly cannot mean assault or even battery on the near and dear of the one for which such love is proclaimed.
There is another side of the tale. After passion had died, during the trial, the accused in a half hearted vain attempt chose to malign the girl and cast aspersion on her character because she had now become an object of hatred. This certainly cannot be love.
In regard to sentencing policy, it was observed by their Lordships in Ravji v. State of Rajasthan, (SC) :1996 A.I.R. (SC) 787 :
1995(4) Crimes 695 : 1996(2) S.C.C. 175 : 1995(8) J.T. 520 as under :
9. Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a 36 measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.
10. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court.
Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle MCG Dautha v. State of Callifornia, (402 US 183 : 28 L.D. 2d 711) that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
11. In Dhananjoy Chatterjee v. State of W.B., 1994(3) RCR(Crl.) 359 (SC) : (1994(2) SCC 220), this Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminal and in the ultimate making justice suffer by weakening the system's creditability. The imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment .
To sum up, punishment should be befitting the crime. Merely because the accused is a young boy, I do not see that he deserves any leniency in this case. There are no mitigating circumstances favouring the accused. He has brought a very shameful and abhorable name to what he calls "love". In this case punishment of life imprisonment alone would not only serve a deterrent effect but correctional effect on the accused. Such crimes are on an increase these days and the newspapers are full of stories of jilted lovers indulging in violence for not being successful in their 37 design or wherever their advances are repelled. Such crime should be dealt very severely by the Courts.
I, therefore, sentence the accused to undergo Life Imprisonment and also impose a fine of Rs.10,000/- and in default to undergo rigorous imprisonment for a period of one year for the offence u/s 302 r.w. Section 34 IPC.
Further the accused is sentenced to undergo RI for Five years and also to pay a fine of Rs.5000/- in default to undergo RI for six months u/s 506 IPC. Both the sentences shall run concurrently.
The accused / convict has been supplied copy of the judgment dated 5.11.2009 as well as Order on Sentence passed today i.e 9.11.2009 free of cost.
The Accused / convict has also been apprised that he shall be at liberty to file an Appeal against this judgment and sentence before the High Court of Delhi. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi. File be consigned to record room.
ANNOUNCED IN OPEN COURT (DHARMESH SHARMA)
TODAY ON: 9.11.2009 ASJ-II, NORTH DISTRICT,
DELHI.