Delhi District Court
State vs . Neeraj Safi Page No. 1/69 on 31 January, 2017
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT SOUTH EAST, SAKET COURTS: NEW DELHI.
Unique Case ID No. 02406R0235772014
SC No. : 200/14 and 1204/16
FIR No. : 214/14
U/s. : 302/376/201 IPC
PS : C R Park, New Delhi.
State (Govt. of NCT of Delhi) ................... Complainant
Versus
Neeraj Safi
S/o Late Mahavir Safi
R/o VPO Dharamdiha,
P.S Phool Prash, District Madhubani,
Bihar. .........................Accused
Date of Institution : 20.09.2014
Judgment reserved for orders on : 03.01.2017
Date of pronouncement : 31.01.2017
J U D G M E N T
Facts
1. The quest in all criminal trials is to arrive at the truth and therefore, the role of the Judge is to cull out the true facts from the evidence led before him and ensure that guilty does not go scotfree and innocent's life and liberty is not jeopardised.
2. This is a case of rape and culpable homicide amounting to murder of an old woman aged 81 years who used to live alone.
3. The facts emanating from the record are as follows. On 07.07.2014, at about 9.50 p.m, an information was received at the police station C R Park, New Delhi vide DD 36A Ex. PW 26/G that a lady who FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 1/69 had gone for a walk in the park opposite S91, Greater KailashII has not returned home. Pursuant to the said information, SI Birender and PW22 HC Sube Singh went to H. No. S93, Greater Kailash, Part II where they met PW2 Manmohan, her soninlaw. They searched for the lady but did not get any clue. During search, on opening the door of the flat on the first floor, they saw some smoke coming out from the room. The lady was found lying on the bed in burnt condition. SI Birender informed PW 26 Inspector Rajender Pathania (IO). He called the crime team and reached the spot. There were some foam pieces cut from the mattress of the bed. PW26 also noticed a chunni tied around her neck tightly. She was in naked condition. PW26 recorded the statement of PW 2 Manmohan Ex. PW 2/A inter alia as under:
"The deceased was his motherinlaw aged 81 years. In the last year, she got constructed four floors on the plot from a builder. She gifted the ground floor to his sisterinlaw Anu Luthra and first floor to his wife Sadhna Mohan. Today, he engaged a carpenter on the first floor. At about 4.00 p.m, after sending the carpenter, he left the flat. He returned his home at Press Enclave, Saket at about 7.30 p.m. At about 9.00 p.m, Smt. Saroj Prakash, resident of S91 Greater Kailash, Part II telephoned his wife that his motherinlaw who had gone for an evening walk has not returned home. He immediately with his wife went to S93, Greater Kailash, Part II and searched for his motherinlaw here and there. His wife then opened the first floor and noticed the flat with full of smoke. There was a fire on the mattress of the bed. His motherinlaw was lying on bed in burnt condition. Her neck was tied with a chunni. He stated that, the deceased used to live alone in the building FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 2/69 and accused Neeraj was her full time servant".
Investigation
4. PW26 made endorsement Ex. PW 26/B on the statement and sent PW22 to the Police Station who got the case registered u/s 302/201 IPC vide FIR Ex. PW 11/A. The crime team led by PW 13 SI Sanjay Kumar did the inspection of the spot. PW19 Ct. Mahesh took the photographs of the scene of crime. PW26 also got the scene videographed. There was no salwar/underwear on the lower portion of the body. The salwar was lying in half burnt condition near the bed. The underwear was also affected by fire. The Split AC in the room also got melted due to the heat caused by fire. PW26 prepared the site plan Ex. PW 26/C and inquest papers. He sent the dead body to Safdarjung Hospital mortuary for post mortem through PW9 Ct. Rajesh and PW22 HC Sube Singh. He called Delhi Fire Service team on the spot. The Station Officer/PW7 after inspection gave report that the fire had not occurred due to short circuit or electric fault. PW26 also called the team of CFSL, CBI, Lodhi Colony. On the directions of PW6 Ms Deepti Bhargava, Senior Scientific Officer, pair of half burnt chappal, bunch of hairs, pieces of the foam of the mattress, one bed sheet, two pillows, mattress cover, all in burnt condition were seized. A mobile phone, a small lady purse, a piece of POP, earth control samples, mattress and bed were seized. On the directions of Ms Kanchan Sharma, Lab Assistant, Bio Division, CFSL, one chadar, panty and salwar of the deceased in half burnt condition were seized.
5. Since Neeraj Safi was changing statements as to the incident, suspicion grew upon him. He was interrogated in detail. He disclosed of his involvement in the present case and pursuant to the disclosure statement Ex. PW2/K, the accused got recovered the match box and knife FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 3/69 from the table of the servant room. One plastic bottle containing kerosene oil was also recovered from the room near his bed. The crime team was again called. The photographs were taken. The site plan Ex. PW 26/D was prepared.
6. On 09.07.2014, the accused was sent to AIIMS with PW 23 SI Bhup Singh for medical examination. The doctor/PW1 found him capable of performing sexual intercourse under ordinary circumstances. His underwear, pubic hairs, penile swab and control swab were taken and handed over to SI Bhup Singh in sealed condition alongwith the sample seal. PW23 handed over the exhibits to PW26 who deposited them in the malkhana. On 10.07.2014, the post mortem on the body of the deceased was conducted. It was videographed. Her viscera, scalp hairs, ligature material, clothes, anal swab, perineal swab, high and low vaginal swab, vaginal mop, nail clippings, blood gauze, scalp mop and body mop were preserved and handed over to PW26 who deposited them in the malkhana in sealed condition alongwith the sample seal. The dead body was handed over to the relatives of the deceased/PW2 and PW4 after the post mortem. The accused was further interrogated. He disclosed that he had thrown his clothes which he had been wearing on 07.07.2014 in the dustbin of MCD Park, S Block, Greater KailashII. PW26 called the crime team and went to Sblock MCD Park from where the accused got recovered his underwear, Tshirt, blue jeans pant from the dustbin. The site plan of the spot was prepared. On 12.07.2014, scaled site plan Ex. PW 20/A was got prepared from the Draftsman. On 14.07.2014, the exhibits were sent to the CFSL, CBI, Lodhi Road for expert opinion. PW26 collected the post mortem report Ex. PW 24/A where the cause of death was opined as asphyxia as a result of ante mortem manual strangulation. After the FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 4/69 investigation, the accused was sent for trial for the offences punishable under section 376/302/201 IPC.
Committal and Charge
7. After complying with the requirements contemplated u/s 207 Cr.P.C, the case was committed to this Court. Vide order dated 24.09.2014, on being found a prima facie case of the offences punishable u/s 376/302 and 201 IPC against the accused, the charge was framed against the accused. The accused pleaded not guilty and claimed trial. Prosecution Evidence
8. To substantiate its allegations against the accused, the prosecution examined as many as twenty eight witnesses. Material Witnesses PW2 Manmohan is the soninlaw(damad) of the deceased. He deposed on the lines of his statement Ex. PW 2/A. He stated that at about 9.00 p.m, his wife received a call from PW3 Smt. Saroj Prakash, neighbour of his motherinlaw that his motherinlaw has not returned home after the evening walk. Since it was unusual, he alongwith his wife and son rushed there. He stated that his motherinlaw(deceased) used to go for evening walk everyday at about 6.00 p.m and come back at 7.00/7.30 p.m. He stated that before they reached the spot, Smt Saroj Prakash had already informed the police. The accused was standing outside the house. Anu Luthra had employed the accused to look after the deceased. He also met Smt. Saroj FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 5/69 Prakash. She told them that the accused had informed her about the missing of the deceased. He also asked his wife to check the ground floor to see if the deceased has fallen down since she was a patient of Asthama. He then asked his wife to check the first floor as she was in the habit of checking taps and switches and for that purpose, she might have gone there. He stated that the first floor was cleaned by a part time domestic help. He stated that his wife went to the first floor and within a minute, she came down rushing/shouting that the floor is on fire. He stated that his wife had opened the lock, one key of which used to remain with the deceased. He alongwith the police officials rushed to the first floor and saw the drawing room with full of smoke. He saw burnt split AC and someone lying on the bed. He called his wife. The accused told him that the deceased was lying on the bed. His wife confirmed it after looking at her body. Her face was totally covered with soot/carbon. He saw some cloth like material tied around her neck. Her body was lying diagonally on the bed which according to him, an old person would never lay down in that way. His proved his statement Ex. PW 2/A and seizure memos Ex. PW 2/B to Ex. PW 2/G. He also proved the arrest memo of the accused Ex. PW 2/J. He stated that police recovered a match box, knife and plastic bottle containing kerosene oil at the instance of the accused FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 6/69 from his servant room which were seized vide memo Ex. PW 2/L and Ex. PW2/ M. He identified the dead body of the deceased and collected it after post mortem vide memo Ex. PW 2/O. He stated that when he reached the place, Security Guard Santosh was present. He was engaged by the tenant on the third floor. When he enquired from him about the deceased, he told that he came at 8.00 pm, he rang the bell but she did not respond. He instead saw the accused coming downstairs to the parking area. The accused said to him 'tum duty pe aaye ho, jahan bethte ho beth jao. Mataji uper hai, me unko bata dunga ki tum duty par aa gaye ho'.
He stated that on 08.07.2014, Mr. Raman Duggal told him that when he informed his mother in Dehradun about her death, she told him that she had spoken to the deceased last night from 8.00 p.m to 8.25 p.m; she had telephoned her at 7.55 pm but she told her that she has just returned from the evening walk and asked her to talk after five minutes. He(PW2) stated that he confirmed this fact from the mother of Raman Duggal after 12 hours.
He stated that in his presence, the accused was interrogated. He also asked the accused as to what he did with the deceased who was of her grand mother's age but the accused without any remorse on his face said"rape kiya hai". He identified the case property FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 7/69 Ex. MO1 to Ex. MO9 and the photographs Ex. PW 13/1 to 11.
On being crossexamined, he stated that no CCTV camera was installed at the first floor but it was installed at the ground floor. The police did not collect the footage of CCTV in his presence. He stated that the deceased had kept a driver Man Singh and a cook Bhuvan who used to work from 8.00 AM to 5.00 PM. They were employed by Anu Luthra.
The accused used to live in the servant quarter in the parking area for 24 hours. When they reached the spot, driver and cook were not present. He stated that the deceased used to have mobile phone. He had made 34 calls on her mobile before leaving his house for Greater KailashII but it was switched off. He stated that the police did not seize any key in his presence. He stated that they had engaged a girl to clean the house. She used to come twice a week. On that day, she had cleaned the flat after the carpenter left after taking the duplicate key from the deceased. Security Guard Santosh had told him this fact after about 4045 minutes when they settled at the place of incident after the body was discovered. The Security Guard had also told these facts to the police at about 1.00 AM. He stated that the police did not record his statement with regard to the facts narrated to him by the Security Guard. He denied that nothing FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 8/69 was recovered by police in his presence nor the accused made any disclosure.
PW3 Saroj Prakash stated that the accused was the full time servant of the deceased. He used to live downstairs in the servant quarter in the parking area. On 07.07.2014 at about 9.15 p.m, the accused informed her that the prosecutrix has not returned from the evening walk. She stated that the deceased used to go for evening walk between 5/5.30 p.m and return at 7/7.30 p.m. She scolded him as to why he informed her so late. She sent her daughter with the accused to search for the deceased. She also called her friends who used to walk with the deceased. She stated that on that day, she had not gone with the deceased. One of her friends Mrs. Jolly informed her that she had met the deceased at about 7.00 p.m when she (deceased) was returning home. She then informed Sadhna Mohan about her missing. She also called the police from her mobile number 9818043127. She also received a call from Anu Luthra from USA as the accused had informed her on telephone.
On being crossexamined, she stated that she does not remember if she had informed the police that Mrs Jolly had met the deceased at about 7.00 p.m. She stated that the deceased never complained her against the accused. She stated that her (deceased) relations with the accused were very cordial.
FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 9/69 PW14 Harwinder Luthra was the soninlaw of the deceased. He stated that on 07.07.2014 at about 9.00/9.30 p.m, he received a call from the accused that the deceased has not returned from the park. When he scolded him why he informed him so late, he told that he had searched but could not find her. They came to India. He stated that accused was employed by him through his friend to take care of the deceased. He identified the dead body of the deceased.
PW 28 Santosh has stated that he had worked as Security Guard at S93, Greater KailashII for about one month from June, 2014 to July 2014. His duty hours were from 8.00 p.m. to 8.00 a.m. He was deputed by Pratiksha Security Company.
He stated that mata ji Mrs. Duggal used to live on the ground floor. When he used to come on duty at about 8.00 p.m, he used to ring the bell of ground floor. Mataji used to come out in the balcony and sometimes at the staircase and ask him for water etc. She used to mark his attendance. He stated that one tenant of mataji on the third floor had engaged him as Security Guard.
He stated that on 07.07.2014 at about 7:50 / 7:55 p.m., when he came on duty, he rang the bell but mataji did not come out nor she responded the bell. While he was just thinking what to do, he saw the accused coming downstairs hurriedly. Accused told him FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 10/69 "santosh tum aa gaye ho, jahan baithe ho baith jao, mataji abhi aram kar rahi hain, mai unhe bata dunga ki tum duty pe aa gaye ho". The accused thereafter went upstairs. At that time, he was looking strange and he appeared to be scared and nervous. He did not see mataji at all on that day.
He stated that after about an hour or so, the accused came downstairs. He sat next to him. At that time also, he was quite nervous (us samay bhi bahut ghabraya hua tha). He murmured for few minutes saying that mataji had gone for evening walk but she has not returned. He then confronted him with his earlier version that when he(PW28) came on duty, he was saying that she was taking rest upstairs and now he is saying that she has not returned from the evening walk. Accused then told him that he is going to inform the next door neighbour regarding the missing of mataji. He stated that during the period when the accused went upstairs and returned after about an hour or so, no one came at the premises nor any one went upstairs.
He stated that after sometime, a lady from the neighbour called the police. Daughter of mataji and her family members including Manmohan also came up there. He stated that on that night, at about 11.00 p.m., Manmohan asked him whether he had seen mataji when he came on duty. He then narrated him the entire FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 11/69 facts. He stated that the accused had been living in the servant quarter in the parking area of the building. He stated that police did not record his statement. On being crossexamined, he stated that he had given his voter Icard to his employer when he joined as Security Guard. He does not have any documentary proof as to his employment with the company. The company did not get his police verification done when it employed him as Security Guard. He stated that he left his duty at 8.00 a.m and after the incident, he did not come on duty. He got his salary after about one month of the incident.
He stated that on 07.07.2014, Manmohan came in the house at 11.00 p.m and talked to him. He was on his seat from 8.00 p.m to 11.00 p.m on the ground floor parking and he did not go anywhere. During the period from 8.00 p.m to 11.00 p.m, when he was on duty, no one talked to him. He denied that he came in the court on the asking of Manmohan or that he never worked as Security Guard in the premises.
Formal Witnesses PW4 Raman Anand was the brother of the deceased. He identified the dead body of the deceased in Safdarjung Hospital Mortuary.
PW9 Ct. Rajesh Kumar got the dead body preserved in the mortuary of Safdarjung Hospital. He stated that the dead body was brought from the first floor.
FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 12/69 PW10 Ct Amit Kumar delivered the copy of FIR to the senior officers.
PW11 HC Hanif recorded the FIR Ex. PW 11/A on 08.07.2014 on receipt of rukka at 12.20 a.m. PW12 Lady Ct. Vikas was on duty at PCR, PHQ, New Delhi. She proved the PCR form Ex. PW 12/A regarding the call at about 9.21 p.m from the mobile number 9818043127 that ''ek lady ghumne gai thi park me, jo abi tak nahi aayi".
PW15 HC Yadvir Singh was the MHC(M). He proved the relevant entries in Register No. 19 and 21 Ex. PW 15/A. He stated that the sealed exhibits were deposited in CFSL vide Road Certificates Ex. PW 15/B to Ex.PW15/D. He stated that the case property/exhibits were not tampered with.
PW16 HC Devender Adhikari deposited the exhibits in sealed condition with CFSL vide Road Certificate Ex. PW 15/B, C and D. PW20 Insp. Mukesh Kumar Jain was the Draftsman. He prepared the scaled site plan Ex. PW 20/A. PW23 SI Bhup Singh took the accused to AIIMS for his medical examination. He collected the exhibits from the doctor alongwith the sample seal and handed over to the IO vide memo Ex. PW 23/A. Medico legal Witnesses PW1 Dr Mantaran Singh Bakshi proved the MLC of the accused Ex. PW 1/A. He collected his exhibits and FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 13/69 handed over to PW22.
PW24 Dr. Mohd. Shadab Raheel did the postmortem of the deceased on 10.07.2014. He proved the post mortem report Ex. PW 24/A. PW 25 Dr. Nikhil Shetty was posted in the department of Burns Plastic and Masillo Facial Surgery of Safdarjung Hospital. He stated that on 08.07.2014 at 2.45 a.m, the dead body of deceased was brought by the police with the alleged history that the body was found in burnt condition at her residence. He examined the body and found 95 per cent deep thermal and facial burns. He opined the injuries as patient brought dead. He proved the MLC Ex. PW 25/A. Forensic Experts PW6 Ms Deepti Bhargava was the Senior Scientific Officer, CFSL. She also deposed on the lines of investigation. She stated that after the investigation, they concluded that the fire would have occurred due to accelerant/fuel as smell of same was detected in the foam pieces lying on the double bed. She ruled out that the fire had occurred due to short circuit. She stated that the exhibits gave positive tests for the presence of residues of kerosene. She proved the report Ex. PW 6/B. On being crossexamined, she stated that the undergarment and burnt clothes were lying on the double bed of the room.
FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 14/69 PW 27 Dr B K Mahapatra was the Senior Scientific Officer, CFSL. He proved his report Ex. PW 27/A, as per which, the blood was detected on exhibits D1(bed sheet), E(mattress), F(perianal swab), G(High Vaginal swab), H(Low Vaginal Swab), I(Vaginal mop), K(blood stained gauze) and P(blood gauze of accused). The DNA profile generated from the female fraction DNA obtained from the source of Exhibit D1, F, G, H and I was found to be consistent with the DNA profile of the deceased(Source of Exhibit K: Blood stained Gauze). Witnesses of Investigation PW 5 Raj Kumar proved the photographs Ex PW 5/1 to Ex. PW 5/36 and the CD of videography of post mortem Ex. PW 5/37 conducted on 10.07.2014.
PW7 R K Yadav was the Station Officer, Nehru Place Fire Station. He stated that they did not find fault in the electric connection and the wires including the short circuit in the premises.
PW8 Ct. Ashwani was the photographer, Mobile Crime Team. On 08.07.2014, he took seven photographs of the room in the parking lot of the building. He stated that from the room, match box, kerosene oil bottle and one knife were recovered. He proved the photographs Ex. PW 8/1 to Ex. PW 8/7. PW 13 SI Sanjay was the Incharge, Mobile Crime Team. On 07.07.2014, he got the scene of crime photographed. He proved the photographs Ex. PW 13/1 FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 15/69 to 11 and his report Ex. PW 13/A. He, again on 11.07.2014, visited the place of recovery of clothes of the accused. He got the spot photographed. He proved the clothes i.e dark green colour VIP underwear, dark blue sea green colour T shirt and a blue colour Puma jeans Ex. MO9 collectively and his report Ex. PW 13/B. He also proved the photographs Ex. PW 13/12 to Ex. PW 13/15.
On being crossexamined, he stated that the clothes of the accused were lying in the dustbin without packing. Other waste material was also lying in the dustbin.
PW17 ASI Sajjan Kumar was the Incharge, Crime Team. He did the inspection of the room of the accused on 08.07.2014. He recovered a match box and knife lying on the table and kerosene oil bottle under the cot/bed. He stated that the chance prints were not found on the articles. He proved the inspection report Ex. PW 17/A. PW18 Ct. Kanhiya Tiwari was PCR motorcycle rider. He stated that on the intervening night of 07/08.07.2014, on receipt of PCR call at 9.40 p.m, he reached the spot. The accused was present outside the house. The daughter of the deceased also came. On checking, a dead body was found lying in burnt condition on the first floor of the house. HC Sube FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 16/69 Singh also reached the spot. He informed the Duty Officer of P.S C R Park.
PW19 Ct Mahesh was the photographer of the crime team. He deposed on the lines of PW13 SI Sanjay. PW21 SI Rajiv Ranjan was with the IO SHO Insp.
Rajender Pathania on 07.07.2014. He deposed on the lines of investigation. He stated that they reached the spot at about 10.15 pm. He stated that the accused remained present on the spot. He was enquired by the IO and on persistent interrogation,he disclosed of his involvement in the crime. He was arrested at about 7.30 pm on the next day i.e. 08.07.2014 vide arrest memo Ex. PW 2/H. He proved the disclosure statement Ex. PW 2/K and stated that pursuant to disclosure statement, the accused got recovered one match box and a knife Ex. MO7 collectively from the servant quarter situated in the parking portion of the premises. He also got recovered a plastic bottle Ex. MO6 containing some kerosene oil from under his cot.
He stated that after her post mortem, IO collected the sealed exhibits from the autopsy surgeon along with the sample seal vide memo Ex. PW 21/B. The doctor had also taken the viscera of the deceased which he handed over to the IO along with the sample seal vide memo Ex. PW 21/C. He stated that during custody, the accused made another disclosure Ex. PW FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 17/69 21/E and got recovered his Tshirt, jeans pant and his underwear Ex. MO9 collectively from a dustbin in the MCD park S Block, GKII, opposite Service Road which he was wearing at the time of incident vide memo Ex. PW 21/F. He identified the case property. On being crossexamined, he stated that except bra, there was no cloth on the body of the deceased. The mobile phone had already been switched off when it was seized. He stated that enquiry was made from the servants including the Security Guard in his presence. He stated that no public person was joined at the time of recovery of clothes which were not in the bag or polythene.
PW 22 HC Sube Singh was with SI Birender. He on the call of PCR reached the spot and met PW2. They searched for the deceased but could not find her. He stated that the second floor was got opened by Manmohan. There was smoke in the room. The dead body of a lady was found lying on the bed in burnt condition. SI Birender informed the SHO. He clarified that the ground floor was the parking and the body was on the second floor of the house. He stated that they reached the spot at 10.00 pm. PW26 ACP Rajender Pathania was the Investigating Officer of the case. He deposed on the lines of PW21 and investigation. He proved the DD 36A dated 07.07.2014 Ex. PW 26/G regarding the missing of the FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 18/69 deceased. He stated that the neck of the deceased was found tied with a chunni. He proved the site plan of the scene of crime and the place of recovery of knife, bottle and matchbox Ex. PW 26/C and Ex. PW 26/D. He also proved the site plan Ex. PW26/E of the place of recovered of clothes. He proved the inquest proceedings Ex. PW 26/H. On being crossexamined, he stated that he reached the spot at about 10:35 p.m. He stated that the mobile phone seized from the spot was not working and was in burnt condition. He however did not collect the CDR of the said mobile phone. He does not know if there was any landline phone installed in the house of the deceased. He did not send the mobile phone to FSL for examination. The CCTV cameras installed inside and outside the building were not in working condition. He stated that there was a Security Guard in the building. He used to sit at the main gate of the building. His duty timings were from 8.00 p.m to 8.00 a.m. He had enquired from him. He had told him that usually the deceased used to return from the evening walk at about 8.00 p.m; he had seen the accused in frightened condition; he told him that madam(deceased) has not come after the walk even after 9.00 p.m. He stated that the Security Guard had told him this fact at about 1.00 a.m but he did not record his statement however he had mentioned it in FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 19/69 the police diary. He stated that he had interrogated the the driver Maan Singh and cook Bhuvan Kumar of the building. He admitted that there were no signs of force at the spot. He stated that Maan Singh was on leave on that day. He stated that SI Birender had told him that the door was opened by the daughter of the deceased with the help of key. The complainant had told him that the key of the floor used to remain with the deceased and her daughter. He admitted that the key was not recovered from the premises nor he searched for the same.
He denied that no recovery was effected from the spot and that it was planted. He stated that the park, from where the clothes of the accused were seized, was being well maintained by gardeners. The public come during morning and evening hours in the park. The clothes recovered from the dustbin were in open condition and were not in a polybag or paper at the time of recovery. The clothes were having stains. He denied that he did not deliberately join any public person, guard or gardener present in the park during investigation. He stated that the park was well maintained but he does not know if park used to be cleaned every day or not. He denied that he did not make enquiry from the Security Guard and for that reason, he did not record his statement.
FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 20/69 Statement of Accused
9. After the prosecution evidence, statement of the accused under section 313 CrPC was recorded wherein he denied all the incriminating evidence against him. He stated that PW2 never engaged any carpenter on 06.07.2014. He admitted that on 07.07.2014, PW2 had come in the house but he does not know when he left the house. He also admitted that PW3, resident of S92, GKII was the neighbour and close friend of the deceased. He admitted that on 07.07.2014, at about 9.15 p.m, he had gone to the house of PW3 and informed her about the missing of the deceased who used to go for walk at about 5/5.30 p.m and come back by 7/7.30 p.m. He admitted that he had been working there for 24 hours and living downstairs in the servant quarter in the parking area. He admitted that PW3 had informed the police and the wife of PW2. He had also informed Anu Luthra who had been living in USA. He admitted that it was the usual habit of the deceased to leave for her evening walk at around 6.00 p.m everyday and return by 7/7.30 p.m. He also admitted that PW2 had asked his wife to check the ground floor to see if the deceased had fallen down since she was the patient of Asthama. He also admitted that Bhuvan used to work as cook and his duty hours were from 10 a.m to 5.00 p.m. He also admitted that he was employed by Anu Luthra. He stated that he does not know if the first floor was cleaned at about 5.00 p.m. He stated that no chunni or cloth like material was tied around the neck of the deceased nor the deceased was naked from bottom nor her salwar or panty were lying on the bed. He offered no comments on Ex. PW 26/C and D. He stated that he did not give any disclosure to the police and his signatures were obtained on blank papers. The recovery was planted on him as the police had already seized his clothes from the room before taking him into FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 21/69 custody on the morning of 08.07.2014. He offered no comments on the post mortem report Ex. PW 24/A and collecting of exhibits or photography or videography of the post mortem. He admitted that Security Guard Santosh was employed by the tenant on the third floor for the security of the building and PW2 had also asked from the Security Guard Santosh if he had seen the deceased returning when he joined his duty at about 8.00 p.m. He however denied that Santosh used to ring the bell of the first floor when he used to come on duty or the deceased used to ask him if he needed anything. He stated that he does not know if Raman Duggal had told PW2 that his mother had talked to the deceased between 8.008.25 p.m when she returned from the evening walk or PW2 confirmed this from his mother. He never said to PW2 that "rape kiya hae". He stated that he never got recovered the matchbox and knife from the servant quarter in the parking. He denied that he got recovered a plastic bottle containing kerosene from under the cot of the servant quarter or he got recovered the Tshirt, jeans pant and underwear. He admitted that he had told PW14 about the missing of the deceased. He pleaded his innocence and stated that he came at about 7.00 p.m from his servant quarter. When he did not find the deceased in the house, he informed PW3 and also made her search. He also informed the daughter of the deceased in USA. He never tried to escape and always remained there during the investigation. He never went to the first floor nor he had the keys of the first floor. In his supplementary statement recorded u/s 313 CrPC, he stated that he never said that PW28 Santosh Security Guard was on duty on 07.07.2014. He stated that PW28 was not on duty nor he worked as Security Guard at the aforesaid premises. He also denied that tenant of the deceased had engaged PW28 as Security Guard at the premises and the FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 22/69 company had directed PW28 to get his attendance marked from the deceased. He stated that PW28 Santosh has deposed at the instance of PW2. He was never posted as Security Guard in the premises. Defence Evidence
10. In defence, the accused examined himself as DW1.
DW1/accused testified on oath that on the day of incident, mataji/deceased had gone to the park. She used to return at about 7:30 p.m but on that day she did not return till 8.00 p.m. He went to the ground floor where she used to live but did not find her. He rang her but her phone was switched off. He searched for her on the third floor but she was not there. He then went to her neighbour to find out her but the neighbour told him that she had not met her. He searched for her in the park. He then informed Anu, daughter of the deceased. When he came back, neighbour and guard were standing in front of the building. The neighbour telephoned Sadhna Mohan, the elder daughter of deceased. The police came and took them to the ground floor, third floor and terrace but she was not found.
After about two hours, Manmohan and his wife Sadhna Mohan reached the spot. Police made enquiry from them with regard to their flat on the first floor. They went to the first floor flat. It was opened by Sadhna Mohan. When they entered the flat, it was dark with smoke. Sadhna Mohan saw the deceased lying dead on the bed in the room.
FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 23/69 He stated that Bhuvan used to cook food for her. On the day of incident, when he came to cook food at the ground floor, he went to sleep to his room. Earlier mataji used to call him to serve her food but on that day, she did not call him. He tried to call her on her phone but he could not connect. He went upstairs but mataji was not there.
On being crossexamined by the Public Prosecutor, he admitted that the guard whom he referred in his deposition used to come on duty at around 8.00 p.m. His duty hours were from 8.00 p.m. to 8.00 a.m. He stated that on that day, that guard did not meet him. He does not know if some maid used to clean the flat on the first floor or the key of the first floor used to remain with the deceased. He stated that he used to live in the servant quarter at the parking area. He denied that mata ji used to go to the first floor to check the flat if the lights were switched off or water taps were closed. He admitted that he used to interact with that guard. He denied that when the guard came on duty, he had asked him about mataji and he told him "Santosh tum aa gaye ho jahan baithe ho baith jao, mataji abhi aram kar rahi, main unhe bata dunga ki tum duty par aa gaye ho". He stated that mataji used to return from the walk between 7.30/8.00 p.m. He also admitted that he started looking for the deceased after about 8.00 p.m. He stated that he did not go to the first FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 24/69 floor since he did not have the key of the flat. When he came downstairs, the guard was standing near the main entrance however he does not know the name of the guard but he stated that the guard had been working since when he joined as servant with mataji. He denied that name of the guard was Santosh. He admitted that between 8.00 p.m to 9.00 p.m, the guard did not go to either of the flat nor any person from outside came in the building. He admitted the photographs of his servant quarter Ex.PW8/57. He admitted that he used to cook food using the knife shown in the photograph Ex. PW 8/2. He admitted that he had been working with the deceased for a long time and she used to be concerned about the cleanliness in the house. Arguments
11. I have heard Sh. A T Ansari, Ld. Special PP for the State and Ms Kavita Yadav, Ld. Counsel for the accused.
12. Ld Special PP submitted that the deceased was an old lady, 81 years of age. She used to live alone on the ground floor of the house No. S93, Greater Kailash, PartII, New Delhi. She had gifted the ground floor to her daughter Anu Luthra who used to live in America. Anu Luthra had employed the accused Neeraj Safi as a full time servant to look after the deceased. The deceased had also employed a cook, a maid and a driver. They used to work part time. She had gifted the first floor to Sadhna Mohan who used to live at Press Enclave, Saket with her husband Man Mohan/PW2. She had given the front portion of the third floor to a company which had employed Santosh/PW28 as Security Guard at night FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 25/69 hours from 8.00 p.m to 8.00 a.m. He used to ring bell to inform the deceased about his arrival. The deceased used to come out in the balcony , sometimes at stairs and ask him for water etc. The accused was given a servant quarter in the parking where he used to live. The deceased used to go for a walk at about 5.30 p.m in the MCD park S Block with Saroj Prakash/PW3. On the day of alleged incident, PW3 did not go for a walk with the deceased. The driver of the deceased was also on leave. PW2 had come with a carpenter to get the furniture repaired and he left the premises at about 4.00 p.m with the carpenter. At about 8.00 p.m, PW28 Santosh rang the bell. The accused hurriedly came downstairs and told PW28 not to disturb the deceased and said 'tum duty pe aaye ho, jahan bethte ho beth jao. Mataji uper hai, me unko bata dunga ki tum duty par aa gaye ho'. PW28 has stated that the accused was looking scared and nervous. After an hour, the accused came downstairs and sat with him. He was looking nervous. He told him that the deceased has not returned from the park. He also told him that he is going to inform the next door neighbour. His testimony would show that during the period when the accused first informed him about Mataji not to disturb her and he went upstairs and returned from there after an hour or so, no one came at the premises nor anyone went upstairs. Ld. Special PP stated that it was only the accused who was with the deceased at the time of alleged incident.
13. Ld Special PP further argued that the accused informed Saroj Prakash/PW3 who thereafter informed Sadhna Mohan. The accused also informed Anu Luthra about missing of the deceased. PW2 then came with Sadhna Mohan and made the search for the deceased. The police was also informed. When the first floor of the house was opened, the room was with full of smoke. There was body of a woman on the bed in burnt condition.
FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 26/69 She was naked from waist. Her mobile phone was lying on the floor in partially burnt condition. There were burnt pieces of foam of the mattresses. Sadhna Mohan identified the woman being the deceased. As per the post mortem report, the prosecutrix was raped and strangulated to death. Ld Special PP stated that on interrogation, the accused disclosed of his involvement. He got recovered match box, kerosene oil bottle and knife with the help of which he set the body on fire to destroy the evidence. The reports clearly show that the fire had not taken place due to short circuit. FSL report shows the presence of kerosene oil on the spot and the cause of fire due to use of kerosene oil.
14. Ld Special PP stated that it was only the accused who was present at the scene of crime. The deceased was in the habit of checking the taps and the switches of the premises. Facts and circumstances show that when the deceased went to the first floor to check the switches and taps, she was having the key of the first floor. The accused went there and committed rape upon her. He then strangulated her to death. He thereafter set the deceased on fire to destroy the evidence. He pretended innocence and went to PW3 to inform her that the deceased had not come from the park, though by that time, he had committed her murder. Ld Special PP stated that no one except the accused was present with the deceased at the time of incident and the facts and circumstances clearly point towards the accused that it was he who committed the aforesaid offences. He informed PW3 about the missing of the deceased at about 9.00 p.m though she used to return at about 7.00/7.30 p.m after the evening walk. He did not inform the daughter of the deceased who used to live nearby at Press Enclave. He informed Anu Luthra at about 9.30 p.m. Testimony of PW3 shows that she had talked to Mrs. Jolly who used to go with the deceased for evening FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 27/69 walk. Mrs Jolly confirmed her that on that day, she had seen the deceased in the park at about 7.00 p.m. Testimony of PW2 shows that the deceased had talked to her sister Shanta Duggal at Dehradun from 8.00 p.m to 8.25 p.m. Ld Special PP stated that facts and circumstances show that the deceased was in her house after 7.30 p.m. Ld. Special PP stated that testimony of PW28 proves the complicity of the accused in the alleged offence. He had seen the accused coming downstairs hurriedly, going upstairs and then coming back at about 9.00 p.m. Ld Special PP stated that the conduct of the accused is relevant u/s 8 of the Evidence Act. Ld. Special PP placed reliance on the case of the State v. Narsingha Khuntia, MANU/OR/0184/1971 and Gulam Majibuddin and another v. The State of West Bengal, 1972 Cril L J 1342(V 789C 344) to contend that the conduct of the accused was highly incriminating. Recovery of match box, plastic bottle and knife from the servant quarter of the accused at his instance and the FSL report clearly prove his complicity in the alleged offence. His dirty clothes were recovered from the park at Sblock pursuant to his disclosure. The accused made contradictory statements during investigation and tried to mislead the investigating agency which made him suspect. He even gave contradictory answers when examined under section 313 CrPC. Ld. Special PP referred Q No. 43, 66 of the statement u/s 313 CrPC, Q No. 5 and 13 in the supplementary statement u/s 313 CrPC and his deposition as defence witness (DW1) in this regard. Ld Special PP also referred the case of Munna Kumar Upadhyay v. The State of Andhra Pradesh, (2012) 6SCC
174.
15. Ld Special PP stated that circumstances show that the death of the deceased had occurred between 8.00 p.m to 9.00 p.m when no one entered and none except the accused was present. The sole presence of the FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 28/69 accused at the scene of crime is established beyond doubt. Ld. Special PP referred Section 106 of the Evidence Act to contend that onus was upon the accused to explain but he failed to discharge this onus. Special PP stated that the evidence led by the prosecution is cogent and overwhelming.
16. Ld Special PP stated that although the DNA report is negative as to the presence of semen of the accused in the vaginal slides of the deceased but it is not necessary that every penetration would result into discharge or emission of semen. Simple penetration would amount to rape as defined u/s 375 IPC. Ld Special PP referred the case of Pramod Kumar v. State of Delhi, Crl. A No. 90 of 2014 decided on 17.05.2016 and stated that the post mortem report is clearly suggestive of forcible sexual penetration. There were injuries inside and outside the genital portion of the deceased. Ld. Special PP stated that the accused first raped the prosecutrix and then committed her murder. Ld Special PP referred the case of Asha Devi v. The state of Bihar, MANU/JH/0102/2006 to contend that the court may look into the case diaries which clearly show that IO had enquired the Security Guard Santosh and incorporated this fact in the case diary.
17. The complainant also filed the written submissions wherein he reiterated the prosecution case and endorsed the submissions made by Ld Special PP.
18. Ld counsel for the accused per contra argued that the accused is innocent. He has been falsely implicated. The arguments of Ld. Special PP that the accused instead informing the daughter of the deceased at New Delhi informed Anu Luthra who was residing in USA does not hold water as the accused was employed by Anu Luthra and he was FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 29/69 answerable to her. Even Anu Luthra did not call her sister, rather called PW3. Ld counsel stated that there are improvements in the statement of PW3. The prosecution did not examine Mrs Jolly who had allegedly met the deceased in the park. PW3 is the hearsay witness. PW28 is a planted witness. PW2 in his application has stated that he had requested the IO to produce the Security Guard/PW28 but every time the IO told him that he was not able to trace him. Ld counsel stated that the testimony of PW28 shows that he was using mobile number 8130540563 for quite a long time and was living at the same address for about 34 years. He had also given the voter card to his employer so it was not difficult for the police to find him. In the instant case, PW26 did not make the Security Guard as witness for the reasons best known to him. PW28 did not produce any documentary proof as to his employment with the company which in itself creates doubt on his veracity. His statement is selfcontradictory. How a person can work day and night i.e driver during the day time and Security Guard at night time. Till the rukka was sent i.e at 12.10 p.m, PW2 did not disclose to the police that he had enquired from the Security Guard who told him that when he came on duty, the accused told him "santosh tum aa gaye ho, jahan baithe ho baith jao, mataji abhi aram kar rahi hain, mai unhe bata dunga ki tum duty pe aa gaye ho". In his deposition recorded on 10.11.2014, he did not disclose this fact. He made improvements in his deposition and added about the Security Guard on 07.05.2015 when he was further examined. PW28 has stated that the police did not make enquiry from him nor recorded his statement. As per the complainant/PW2, he came at the spot at about 9.15 p.m but PW28 has stated that PW2 came at 11.00 p.m. It shows that PW28 was never present on the spot on that day.
FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 30/69
19. As regards contradictions appearing in the statements of the accused recorded u/s 313 CrPC, Ld counsel stated that the accused never denied the presence of Security Guard on that day but he has denied the presence of PW 28 as he never worked there as Security Guard. He was introduced by PW2 after two years of incident.
20. Ld counsel contended that the prosecution did not examine the sister of the deceased who had allegedly spoken to the deceased from 8.00 p.m to 8.25 p.m on the landline nor the prosecution examined Raman Duggal who had allegedly told this fact to PW2. Ld counsel stated that in order to appreciate the evidence, the court is required to bear in mind the set up and the environment in which the crime was committed. The story of the prosecution is moving around PW2 who is an interested witness. Except the complainant, there is no independent witness. Ld counsel stated that there was no sign of forced entry nor any duplicate key was recovered.
21. Ld counsel stated that the recovery of knife, match box and kerosene bottle were planted on the accused. No public person was joined when the recovery was effected. As per crime team report, no chance prints were found on the knife, match box and the bottle. Even the recovery of clothes from the park on 11.07.2014 is doubtful. No public persons were joined at the time of alleged recovery. It is strange that the garbage was not removed from the park for four days though it was a well maintained park. Statements of the cook, the girl who used to clean the house and the driver were not recorded.
22. Ld counsel contended that when the deceased did not return from the park, accused searched for her in the building. He also went to the park but when he did not find her anywhere, he informed her daughter in USA. He is a boy aged 21 years. He belongs to a rural area of Bihar. Had FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 31/69 the accused committed the aforesaid crime, he would have run away after committing the crime. His presence and participation during investigation show his bonafide which fact is also evident from the testimony of PW3 who has stated that accused was appearing normal when he came to her to report the missing of the deceased. FSL report falsifies the prosecution story as no semen was detected nor any injuries on the private parts of the accused were noticed. Ld counsel referred the case of Mani v. State of Tamilnadu Crl. A No. 443/2006 decided on 08.01.2016 and stated that the beneficiary in the instant case was the soninlaw of the deceased/PW2. When the duplicate key of the house was with the deceased, what made the wife of the PW2 bring another key with her. No call details were collected to rule out the possibility of third person entering the scene of crime. The landline phone was installed on the ground floor but dead body was recovered from the first floor. The mobile phone of the deceased was not sent to the FSL. The prosecution did not examine the carpenter who had allegedly worked in the house of the deceased. Ld counsel stated that the whole story of the prosecution is mere a concoction.
23. Ld counsel referred the post mortem report and the case of Subramaniam v. State of Tamilnadu Crl. A No. 774/2006 decided on 13.05.2009 to contend that as per the report, the death had taken place between 12.00 noon to 4.00 p.m but according to the prosecution, the death had resulted between 8.00 p.m to 9.00 p.m. The injuries on the vagina as coming in the report could be due to fall or from blunt object. The prosecution did not examine SI Birender who was important link to the investigation. Ld counsel contended that the prosecution has failed to complete the chain of circumstances to negate the innocence of the accused and to bring home the offences beyond reasonable doubt.
FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 32/69
24. Ld Special PP in rebuttal submitted that IO could trace the Security Guard/PW28 after making rigorous efforts with the help of NGO. He has fully corroborated the testimony of PW2. He has correctly identified the accused in the court. He has denied that he has deposed at the instance of PW2. His testimony shows that when accused went upstairs at 7.50/7.55 p.m and returned after an hour, no one came out of the premises nor anyone went inside and upstairs. The contradictory answers given by the accused in his statement leads to a situation that the accused did not want to acknowledge the existence of PW28 who has given crucial evidence against him.
Findings
25. I have bestowed my thoughtful consideration on the contentions raised on behalf of both the sides and have gone through the statements of the witnesses and the documents on record and also the case laws referred during the course of arguments.
26. After hearing the parties at length and after carefully perusing the record, it is clear that the case is solely based on the circumstantial evidence.
27. In the case of Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622, the Supreme Court laid down the conditions to be fulfilled in a case based on circumstantial evidence :
i. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;
ii. 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 explainable or any other hypothesis except that the accused is guilty;
FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 33/69 iii. The circumstances should be of a conclusive nature and tendency.
iv. They should exclude every possible hypothesis except the one to be proved; and v. 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.
28. The same principles were reiterated and approved by the Supreme Court in the case of Prakash v. State of Rajasthan AIR 2013 SC 1454 wherein it was held: " These five golden principles, if we may say so, constitute the panchshell of the proof of a case based on circumstantial evidence."
Circumstances
29. The circumstances in the present case as emerged from the evidence adduced by the prosecution are as under:
1. The deceased was an old lady aged about 81 years. She used to live alone at the ground floor of the house No. S93, Greater KailashII, New Delhi. The accused was the full time servant of the deceased to take care of her. He was employed by her daughter namely Anu Luthra who used to live in USA. The accused used to live in the servant quarter at the parking of the building.
2. The first floor was in the occupation of the younger daughter of the deceased namely Sadhna Mohan who lives with her family at Press Enclave, Saket. The front portion of the third floor was on rent to a company which had employed a Security Guard at the gate of the building and his duty hours were from 8.00 p.m to 8.00 a.m.
3. The deceased used to go for evening walk in the park near FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 34/69 her house at about 5.30/6.00 p.m and come back at about 7/7.30 p.m.
4. On 07.07.2014 at about 5.30 p.m, the deceased as usual went for the evening walk in the park near her house but went missing.
5. The accused informed the daughter of the deceased namely Anu Luthra in USA and PW3 Saroj Prakash, her neighbour about the missing of the deceased at about 9.00/9.15 p.m and PW3 informed the another daughter of the deceased namely Sadhna Mohan, wife of PW2 about her missing. (information qua fictitious missing of the deceased to PW3 Saroj Prakash that too at about 9.00 p.m though the deceased used to return from the park at about 7.30 p.m to thwart the detection of crime at an early stage and to create confusion.)
6. The dead body of the deceased was found in burnt condition in the bedroom on the first floor of the house No. S93, Greater KailashII, New Delhi at about 10.00 p.m.
7. The deceased was raped before her death.
8. The death was homicidal not the natural one. The deceased was set on fire after her death by the offender with the intention to cause the evidence to disappear to screen himself from legal punishment.
9. The exclusive presence of the accused at the place of occurrence in the said building between 8.00 p.m to 9.00 p.m when the death had taken place. ( no one except the accused entered and came out from the ground floor and first floor of the building between8.00 p.m to 9.00 p.m, the time when the death had taken place).
10. The conversation held between PW28 Security Guard Santosh and the accused coupled with his abnormal/unusual conduct of going upstairs at about 8.00 p.m and coming back downstairs at about 9.00 p.m after an hour which was the time when the offence took place.
FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 35/69 ( Meeting of the accused with the Security Guard PW28 when he came on duty at 8.00 p.m and rang the bell and his telling to the Security Guard not to disturb the deceased and stating that she was sleeping, he would inform the deceased about his coming. At about 9.00 p.m, he told the Security Guard that the deceased has yet not returned from the evening walk.)
11. Continuous presence of the accused at the scene of crime to give an appearance that he was not involved in the crime.
12. The disclosure statements of the accused and the recovery of the incriminating material from the possession and at the instance of the accused.
13. Contradictory and inconsistent statements by the accused with regard to the presence of the Security Guard PW28.
14. Motive of the murder.
Circumstance No. 1:
The deceased was an old lady aged about 81 years. She used to lived alone at the ground floor of the house No. S93, Greater Kailash II, New Delhi. The accused was the full time servant of the deceased to take care of her. He was employed by her daughter namely Anu Luthra who used to live in USA. The accused used to live in the servant quarter at the parking of the building.
30. Testimony of PW2 shows that the deceased was the owner of the property bearing No. S93, Greater Kailash, PartII, New Delhi. She was 81 years of age. About 2/3 years ago, she got the house reconstructed from a builder which comprised of four floors and a parking. The deceased had been living on the ground floor which she had gifted to her elder daughter namely Anu Luthra. She has been living in America with her family. She had gifted the first floor to her second daughter namely Sadhna FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 36/69 Mohan. She had given the second floor to the builder as a consideration for reconstruction of the building. She had given on rent the front portion of the third floor to a Gurgaon based company.
Testimony of PW2 further shows that the accused was the full time servant of the deceased. He used to live in the servant quarter at the parking area of the building. He was engaged by Anu Luthra to look after the deceased. PW14 has corroborated this fact and stated that they had employed the accused to take care of the deceased. It has also come in the evidence of PW3, the neighbour and friend of the deceased that the accused was the full time servant of the deceased. He used to live in the servant quarter at the parking area. The accused never disputed this fact and the testimony of PW2, PW3 and PW14 on this aspect remained unassailed. From the aforesaid evidence, circumstance No. 1 stands proved. Circumstance No. 2:
The first floor was in the occupation of the younger daughter of the deceased namely Sadhna Mohan who lives with her family at Press Enclave, Saket. The front portion of the third floor was on rent to a company which had employed a Security Guard at the gate of the building and his duty hours were from 8.00 p.m to 8.00 a.m.
31. Testimony of PW2 shows that the first floor of the building was in the occupation of her daughter namely Sadhna Mohan who lives with her family at Press Enclave, Saket. The tenant on the third floor had engaged a Security Guard from 8.00 p.m to 8.00 a.m to look after the security of the building. He used to sit at the gate of the building. The accused in his statement u/s 313 CrPC and in his testimony as DW1 also admitted this fact. He has also stated that he used to interact with the Security Guard.
FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 37/69 Thus from the testimony of PW2 and unequivocal and categorical admission of the accused, it is proved that the first floor of the house was in the occupation of Sadhna Mohan and tenant on the first floor had employed a Security Guard at the gate of the building from 8.00 p.m to 8.00 a.m. Circumstance No. 3:
The deceased used to go for evening walk in the park near her house at about 5.30/6.00 p.m and come back at about 7/7.30 p.m.
32. It has come in the evidence of PW2 that the deceased used to go for evening walk every day at about 6.00 p.m and come back at about 7/7.30 p.m. PW3 has stated that the deceased used to go for an evening walk at about 5/5.30 p.m and return at 7/7.30 p.m. The accused never disputed this fact rather stated in his testimony as DW1 that the deceased used to go for evening walk and return at about 7/7.30 p.m. As such, circumstance No.3 stands proved.
Circumstance No. 4 and 5:
4. On 07.07.2014 at about 5.30 p.m, the deceased as usual went for the evening walk in the park near her house but went missing.
5. The accused informed the daughter of the deceased namely Anu Luthra in USA and PW3 Saroj Prakash, her neighbour about the missing of the deceased at about 9.00/9.15 p.m and PW3 informed the another daughter of the deceased namely Sadhna Mohan, wife of PW2 about her missing. (information qua fictitious missing of the deceased to PW3 Saroj Prakash that too at about 9.00 p.m though the deceased used to return from the park at about 7.30 p.m to thwart the detection of crime at an early stage and to create confusion.)
33. PW3 in her deposition has stated that on 07.07.2014 at about FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 38/69
9.15 p.m, the accused informed her that the deceased has not returned from the evening walk. She stated that she used to go with the deceased for the evening walk but on that day she did not go with the deceased since she had to go to a drycleaner. She then started calling her friends who used to take walk with the deceased in the evening. Mrs Jolly, their common friend, informed her that she had met the deceased in the park at about 7.00 p.m. She then informed the police at 100 number and the wife of PW2 namely Sadhna Mohan about the missing of the deceased. She stated that Anu Luthra had also called her since the accused had informed Anu Luthra on telephone that the deceased was missing. PW14, husband of Anu Luthra, has stated that at about 9/9.30 p.m, the accused had called them that the deceased has not returned from the park; and he had tried to locate her but could not find her. He stated that his wife thereafter confirmed it from the neighbour. It has come in the testimony of PW2 that at about 9.00 p.m, his wife received a call from PW3 that the deceased has not returned home after the evening walk. Since it was unusual, he with his wife and son rushed there. By that time, PW3 had informed the police. When they reached the spot, they saw the accused standing at the gate of the building. They met PW3 who told them that she had searched for the deceased in the park but they did not find her. They also checked the ground floor but they did not find her. He with the accused went to the terrace for the search of the deceased but they did not find her there. PW28 has stated that on 07.07.2014 the accused after about an hour or so, came downstairs from the premises and sat down next to him. He was quite nervous. He murmured for few minutes that mataji had gone for the evening walk but has not come back and the accused also informed him that he was going to inform the neighbour regarding her missing.
FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 39/69 The accused did not dispute this fact that on 07.07.2014, the deceased had gone to the park for the evening walk. He has stated that when the deceased did not return till 8.00 pm, he looked for her here and there and informed PW3 and Anu Luthra. He had also met the Security Guard at the gate of the building. PW12 has stated that on 07.07.2014 at 9.21 p.m, she had received a call from the mobile of PW3 that 'ek lady ghumne gai thi park me, jo abi tak nahi aayi'. Although PW3 was confronted with her statement u/s 161 CrPC Ex. PW 3/DA regarding Mrs Jolly informing her that she had met the deceased at about 7.00 p.m which was not recorded there in the statement but in the instant case, the accused never stated that Mrs Jolly was not the friend of the deceased or she used not to go for walk and meet the deceased in the park. PW3 rather explained that since she was in the state of shock at that time, she does not remember any further talks. It has also come in the testimony of PW2 that Raman Duggal, son of the sister of the deceased, had told him that his mother Shanta Duggal had told him that she had spoken to the deceased from 8.00 p.m to 8.25 p.m and he (PW2) also confirmed it from Shanta Duggal.
34. It is true that in the instant case, the prosecution did not examine Mrs Jolly and Shanta Duggal nor the investigating officer collected the CDR of the mobile phone of the deceased and the landline phone installed in the building but there is no dispute qua the fact that the deceased used to go for an evening walk at around 5.30 p.m and come back at about 7.30 p.m. On 07.07.2014, she had gone for the evening walk at about 5.30 p.m. It has also come in the evidence of PW3 that after the accused informed her about the missing of the deceased, she talked to Mrs Jolly who told her that she had met the deceased in the park at about 7.00 FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 40/69 p.m. PW2 also confirmed the fact stated by Raman Duggal from Shanta Duggal about her talks with the deceased. There was no crossexamination of PW2 on this aspect. It is relevant to mention that when the room on the first floor was checked at about 10.00 p.m, the body of the deceased was found lying on the bed in burnt condition. In the instant case, the accused had informed PW3 about the missing of the deceased at about 9.00 p.m though she used to return between 7.00/7.30 p.m. Since the conduct of the accused informing PW3 at 9.00 p.m is not compatible with the sequence of events, therefore, it cannot be said to be natural. The house of the deceased was not so big that the accused took two hours for the search of the deceased. It is not the case that the accused was not in the house at about 7.30 p.m. His explanation that he looked for the deceased here and there before informing PW3 does not inspire confidence.
35. Testimony of PW21 shows that when they recovered the mobile phone, it was switched off. The accused has also stated that when the deceased went missing, he tried to contact her on her mobile but it was switched off. On considering the totality of circumstances, non examination of Mrs Jolly, Mrs Shanta Duggal and not collecting the CDR would not prove fatal to the case of the prosecution. It is well settled law that the case of the prosecution cannot be thrown out merely because there is some defect in the investigation. It has been observed in the case of Karnel Singh v. State of M.P AIR 1995 SC 2472 that in cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused persons solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. From the above evidence, circumstances No. 4 and 5 stand proved.
FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 41/69 Circumstance No. 6 The dead body of the deceased was found in burnt condition in the bedroom on the first floor of the house No. S93, Greater KailashII, New Delhi at about 10.00 p.m.
36. PW2 has stated that when they did not find the deceased on the ground floor and the roof, he asked his wife to check the first floor of the house as the deceased was in the habit of checking taps and switches and she might have gone there. He stated that a part time domestic help used to clean the first floor. One key of the first floor used to remain with the deceased and one with his wife. His wife went upstairs and within a minute, she came rushing/shouting that the floor is on fire. His wife opened the door lock with the key in her possession. He alongwith the two police officials went to the first floor and saw the drawing room with full of smoke. He could not make out from where the smoke was coming. He opened the door and switched on the light but the visibility was not clear. He called his wife. He stated that beddings were smoldering and smoke was coming out of it. The accused told him that the deceased was lying on the bed. His wife after looking at her body confirmed this fact. Her face was totally covered with soot/carbon. A cloth like material was tied around her neck. Her body was lying diagonally on the bed which according to him could not be possible as an old lady would never lay down in that way. He stated that the crime team, CFSL experts and the fire brigade inspected the scene and the police took into possession the burnt articles including her under garments etc. He correctly identified the case property Ex. MO1 to Ex. MO8.
PW6, PW7, PW13, PW17, PW18, PW19, PW21, PW22 and PW26 corroborated this fact that the dead body in burnt condition was FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 42/69 recovered from the bedroom on the first floor. PW6 had inspected the spot and directed the police to collect the exhibits from there. PW7 was the Fire Station Officer. He stated that when he reached the spot, the fire had already extinguished. PW13 had inspected the first floor and got the scene photographed from PW19. PW21 had gone with PW26 on the call. Their testimonies clearly show that the dead body was recovered in burnt condition from the first floor of the House No. S93, Greater KailashII, New Delhi at about 10.00 p.m.
37. The question now arises how the dead body was recovered from the first floor when the deceased used to live on the ground floor. Testimony of PW2 shows that he had employed a part time domestic help to clean the first floor. The deceased was in the habit of checking taps and switches. On the day of alleged incident i.e on 07.07.2014, he had employed a carpenter on the said floor who worked from 10 a.m to 4.15 p.m. His testimony also reveals that one key of the first floor used to remain with the deceased. He has stated that the part time servant had come to clean the flat on the first floor. The mobile phone of the deceased was also recovered from the first floor which was lying near the bed. So in these circumstances, there was every possibility for the deceased going to the first floor to check the taps and the switches on the day of alleged incident after coming from the park. The accused did not controvert this fact that the dead body was recovered from the first floor of the house. He has rather stated that the deceased used to be concerned about the cleanliness of the house. It was contended by Ld defence counsel that what made the wife of PW2 bring the key of the flat on the first floor when one key was with the deceased. In my view, the answer to this question is that the wife of PW2 had brought the key since the deceased was missing. In FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 43/69 view of the discussions hereinabove qua the evidence, circumstance No. 6 stands conclusively proved.
Circumstance No. 7 and 8:
7. The deceased was raped before her death.
8. The death was homicidal not the natural one. The deceased was set on fire after her death by the offender with the intention to cause the evidence to disappear to screen himself from legal punishment.
38. PW2 has stated that after the smoke got cleared, he saw someone lying on the bed. The beddings were smoldering and the smoke was coming out of it. His wife confirmed that it was the body of the deceased. Her face was totally covered with soot/carbon. A cloth like material was tied around her neck. Her body was lying diagonally on the bed which according to him, an old person would never lay down in such a way. PW21 has stated that the body of a lady was lying in burnt condition on the bed. PW13 has stated that during the inspection of the room on the first floor, they found a charred dead body on the burnt bed. The burnt material was lying on the bed and the floor. He stated that the clothes of the deceased were partially burnt. PW21 also deposed on the lines of PW13. He has stated that on the directions of the CFSL experts, he lifted the exhibits Ex. MO1 to Ex MO5 from the place. He proved the seizure memos Ex. PW 2/B to Ex. PW 2/G and stated that the exhibits were seized in the presence of CFSL experts, crime team, PW2 and his wife Sadhna Mohan. The accused was also present at that time. PW6 has stated that the exhibits were lifted on her instructions. She stated that the undergarment and burnt clothes were lying on the double bed. When they reached the spot, the fire had already been extinguished. PW7 Fire Officer has stated that when they reached the spot, the fire had already extinguished.
FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 44/69 Testimonies of PW6 and PW7 would also show that the fire did not take place due to fault in electric connection or short circuit. They completely ruled out the possibility of fire due to short circuit.
39. Testimony of the witnesses would show that the deceased was naked from waist. Her salwar and panty were lying on the bed in partially burnt condition. Both of them were seized and a pulanda was prepared. Post mortem report Ex. PW 24/A shows that when the deceased was brought for post mortem, she was wearing bra and kurta. It is relevant to reproduce the post mortem report Ex. PW 24/A:
"........External General Appearance:
Dead body of an old female wrapped in white hospital plastic bag, wearing white kurta and white bra, that are partially burnt, wrist watch at left forearm, black hair clip. Ligature material in the form of chunni was present wrapped around neck. The ligature material was wound in 3 turns around the neck with knot lying in front of neck. The ligature material was preserved with the knot being fixed with black thread and the ligature material being cut opposite to knot, its two free end tied with black thread, sealed and handed over to IO. The two free ends of the knot measure 13 cm and 15 cm and the long end opposite to them measure 69 cm in length. Videography of the case was done by the IO.
Post Mortem Changes:
Hypostasis: could not be ascertained due to extensiv burn.
Rigor mortis: heat stiffening present. Decomposition Changes: absent. External Examination (injuries etc)
1. Multiple reddish pressure abrasions 4 in number, present on left side of front of neck, placed vertically of size ranging from 3 cm X 1.5 cms X1cm. One fine dissection of neck structures the subcutaneous tissues and muscle plane under FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 45/69 the ligature mark show extravasation of blood.
There is fracture at the junction of greater horn of hyoid bone with body of hyoid on left side and fracture of superior thyroid horn on left side alongwith extravasation of blood at fracture site.
2. Reddish pressure abrasion, present on right side of front of neck, size 1.5 cm X 1cm, 3 cm above medial end of clavicle and 2cm from midline.
3. Lacerated wound, 2.5 cm X 1cm X0.1 cm, present on the undersurface of upper lip and 3cm X 1cm X 0.1cm, present over undersurface of lower lip across midline.
4. Lacerated wound of size 2cm X 0.5 cm, mucosal deep present over 6 O'clock position at the vaginal orifice alongwith extravasation of blood and reddish coloured bruise of size 3 cm X 2cm present on lateral wall of vagina on right side.
External Post Mortem Injuries:
5. Epidermal to dermal burn injuries present all over the body except in patches over chest, abdomen, lower back on left side, inner side of thigh, back of lower part of thigh and upper leg, sparing both soles, upper part of face, front and back of right forearm, in patches over back of left arm and forearm, sparing both palms, front and back of both legs, sparing both soles. Charring of skin present at places and degloving of skin present over both hands. The burn and unburnt area does not show reddish colored demarcation. Superficial layers of the skin are burnt and peeled off at places revealing underlying soft tissues which are pale and yellowish in color at some places and reddish firm base at some areas.
Approximate area of burn is 75% of total body surface area.
6. Ligature mark in the form of reddish coloured pressure abrasion present around neck, completely encircling the the neck. It is present FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 46/69 4cm below extended chin on front of neck, on left side of neck it is 5 cm below angle of mandible, on right side of neck it is placed 3.5 cms below angle of mandible and on back it is placed 5 cm below hairline. The width of the ligature mark varies from maximum of 3cm to minimum of 2cm. The total neck circumference is 30 cm.
Internal Examination Neck Structure:
Trachea: Soot particles absent. Rest as described under injury No.1.
Esophagus: NAD Chest:
Collar Bone/Sternum/Ribs: Fracture of 5th rib present in mid clavicular line on left side alongwith extravasation of blood in surrounding areas.
Pleural Cavity: NAD Lung Right/Left: Both the lungs are congested & edematous. Petechial hemorrhage present at inter lobar surface of both the lungs. Heart: Petechial hemorrhage present over pericardial surface.
Coronaries: Patent.
Abdomen Peritoneum, Peritoneal Cavity: NAD. Stomach and its contents: contains about 20 ml of pinkish mucoid fluid.
Walls: Congested Intestines: NAD." Liver Congested, Spleen Congested, Kidneys Right/left Congested.
Pelvis Pelvic Cavity: NAD, Pelvic bones: NAD, Bladder: NAD, Uterus: multiple fibroids present, Ovaries, fallopian tube: NAD.
Vagina: prolapse of posterior vaginal wall present. Restat as in injury No.3. Spinal Column: NAD Head Scalp: Extravasation of blood present at occipital area and left parietal area on reflection of scalp.
FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 47/69 Skull: NAD Brain: Congested and edematoius, Petechial hemorrhage present in the white matter of brain. Specimens preserved, sealed and handed over to IO: 1.Vaginal Swab(high vaginal swab and low vaginal swab) 2. Perianal swab 3. Anal Swab 4. Body mop 5. Scalp mop, 6. Vaginal mop 7. Nail Clippings of both hands 8. Ligature material 9. Clothes 10. Blood on gauze piece 11. Scalp hair
12. Viscera to rule out poisoning.
Time since death: About 23 days.
OPINION:
Death is due to asphyxia as a result of ante mortem manual strangulation. Injury No. 3 is suggestive of attempted smothering. Injury No. 14 are ante mortem in nature. Injury No. 56 are post mortem in nature. Injury No. 1,2 and 3 are sufficient to cause death in ordinary course of nature, collectively.
40. PW24 has stated that the injuries at Srl. No. 1 to 4 were the external ante mortem injuries. The external injuries mentioned at Srl. No. 5 and 6 were present on the body at the time of post mortem. The approximate area of the burn was 75 per cent of the total body surface area.
He stated that the cause of death of the deceased was due to asphyxia as a result of ante mortem manual strangulation as petechial hemorrhage at inter lobar surfaces of both the lungs, petechial hemorrhage over pericardial surface of heart and petechial hemorrhage in white matter of brain were found present and injuries described in Srl. No. 1 and 2 in the report were suggestive of manual strangulation. He stated that injury No. 3 was suggestive of attempted smothering and the injuries mentioned at Srl. No. 1 to 3 were sufficient to cause death in ordinary course of nature collectively. Injury No. 4 was suggestive of forcible sexual penetration, injury No. 5 and 6 were postmortem injuries suggestive of having caused FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 48/69 after the death of the deceased. Injury No. 6 was suggestive of ligature strangulation post death. He stated that the absence of soot particles in trachea was clearly suggestive that burn injuries mentioned at Srl. No. 5 were caused after the death of the deceased. He stated that in case of ante mortem injuries, the soot particles are generally found in trachea however it may disappear in the passage of time. He stated that it is not necessary that the eyes remain open in the condition under which the death had resulted, as opined by him. It is not necessary that in such type of death, the tongue always come out from the mouth. He stated that there were blood clots on the covering/surface of the heart. He stated that it is not necessary that in such type of death, the right portion of the heart remain with full blood and the left portion of the heart remain empty blood. Kidney and the brain were congested. He denied that in such type of death, the brain and kidney remain distended. He stated that the face and head were congested. There was burn on the upper part of face. He denied that in such type of death, the face and brain remain distended. He stated that in normal course, mucus remains in the mouth and throat. He stated that it is not necessary that blood would come from the mouth or the nose of the deceased in such type of death. It, however, happens in head injury cases. He cannot say what was the oxygen level of the blood when he conducted the post mortem, however, some oxygen remains in the blood. He stated that the injuries mentioned in the post mortem report could be due to penetration or penetrative attempt. PW 25 who was posted in the department of Burns Plastic and Masillo Facial Surgery of Safdarjung Hospital has stated that he examined the body and found 95 per cent deep thermal and facial burns. He proved the MLC Ex. PW 25/A. During arguments, Ld defence counsel referred the case of Subramaniam supra FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 49/69 specially Para No. 10 of the judgment to contend that generally during the time of asphyxia, the eyes would be open and the tongue would be protruding outside, right side of the heart would be full of blood, the left side empty and the kidneys would be found distended and likewise the brain which is missing in this case. Further, as per PW24, the death had taken place between 12 noon to 4 p.m but according to the prosecution, the death had resulted between 8.00 p.m to 9.00 p.m. The injuries on the vagina as coming in the biological report could be due to fall or from blunt object.
41. On perusal of the case law referred above, I find that the said observations were made by the Medical Officer when examined as PW10. In this case, PW24 was crossexamined at length but he has stated that it is not necessary that the eyes remain open in the condition under which the death had resulted, as opined by him. It is not necessary that in such type of death, the tongue always come out from the mouth. He stated that there were blood clots on the covering/surface of the heart. He stated that it is not necessary that in such type of death, the right portion of the heart remain with full blood and the left portion of the heart remain empty blood. Kidney and the brain were congested. He denied that in such type of death, the brain and kidney remain distended. In the instant case, ld counsel did not bring any literature or evidence to discredit the testimony of PW24. Testimony of PW27 Dr. B K Mahapatra, Senior Scientific Officer, CFSL and his report Ex. PW 27/A would show that the blood was detected on exhibits D1(bed sheet), E(mattress), F(perianal swab), G(High Vaginal swab), H(Low Vaginal Swab), I(Vaginal mop), K(blood stained gauze) and P(blood gauze of accused). The DNA profile generated from the female fraction DNA obtained from the source of Exhibit D1, F, G, H FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 50/69 and I was found to be consistent with the DNA profile of the deceased(Source of Exhibit K: Blood stained Gauze). PW6 Senior Scientific Officer, CFSL has stated that as per the report Ex. PW 6/B, the Exhibits B( partially burnt sleeper, some partially burnt whitish black bunch of hairs and some partially burnt foam pieces), C(partially burnt printed bedsheet, two partially burnt pillows with cover and one red colour partially burnt foam mattress), F(one partially burnt light brown colour cloth piece with black thread) and G (one partially burnt embroidered light brown colour kurta and partially burnt white colour brazier) gave positive tests for the presence of residues of kerosene and Exhibit D( one plastic bottle having printed label) gave positive tests for the presence of kerosene. As per the report Ex. PW 6/B, Exhibit 4(blood sample) gave positive tests for the presence of Carbon Monoxide.
42. From the testimonies of PW2, PW6, PW7, PW13, PW21, PW26 and PW27, it is proved that the dead body was recovered from the first floor of the premises in partially burnt condition. The neck of the deceased was tied with a chunni. The deceased was naked from waist.
43. In the instant case, as per the report Ex. PW 27/A, the blood was detected on the bedsheet Exhibit D1, anal swab of the deceased Exhibit E and F, high and low vaginal swabs of the deceased Exhibit G and H and vaginal mop of the deceased Exhibit I. Burnt debri materials were detected on the nail clippings of the deceased. The Post mortem report is also suggestive of the fact that the death had resulted due to asphyxia as a result of ante mortem manual strangulation. It was a case of attempted smothering. Injury No. 1 to 6 were ante mortem in nature and Injury No. 1 to 3 were sufficient to cause death in ordinary course of nature collectively.
FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 51/69 Injury No. 5 and 6 were post mortem in nature. Injury No. 4 i.e lacerated wound of size 2cm X 0.5 cm, mucosal deep present over 6 O'clock position at the vaginal orifice alongwith extravasation of blood and reddish coloured bruise of size 3 cm X 2cm present on lateral wall of vagina on right side, clearly suggest that forcible sexual penetration had taken place. The post mortem also shows multiple fibroids present in uterus. There was prolapse of posterior vaginal wall of vagina.
44. On a conjoint reading of the testimony of the witnesses and the reports, it is crystal clear that the deceased was first raped and then strangulated to death. The police had also seized the ligature material in the form of chunni wrapped around her neck. As per the post mortem report, it was wound in three turns around the neck with knot lying in front of neck. The two free ends of the knot measure 13 cms and 15 cms and the long end opposite to them measure 69 cms in length. The reddish pressure abrasions present on the left side of the neck and the injuries No. 1 to 3 clearly prove that the death had resulted due to strangulation which in ordinary circumstances were sufficient to cause death.
45. The ingredients of Clause thirdly of S.300 of the Code were brought out clearly by Hon'ble Mr. Justice Vivian Bose in Virsa Singh v. State of Punjab, 1958 SCR 1495 at P.1503 as under:
"To put it shortly the prosecution must prove the following facts before it can bring a case under S.
300. "3rdly."
Firstly, it must establish, quite objectively, that a bodily injury is present.
Secondly, the nature of the injury must be proved. These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 52/69 intended.
Once these three elements are proved to be present, the inquiry proceeds further and, Fourthly, it must be proved that the injury, of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."
The Hon'ble Judge has further discussed section 300(3) thus:
"The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not or if the totality of the circumstances justify such an inference, then, of course the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it. The only possible inference is that he intended to inflict it. Whether he knew of its seriousness or intended serious consequences is neither here nor there. The question, so far as the intention is concerned is not whether he intended to kill or to inflict an injury of a particular degree of seriousness but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence of the circumstances warrant an opposite conclusion."
46. The aforesaid observations of Hon'ble Mr. Justice Vivian Bose have become local classicus as has been observed by the Supreme Court in Jagrup Singh v. State of Haryana AIR 1981 SC 1552 in para 7.
47. Facts and circumstances also show that after the deceased was strangulated to death, the assailant cut the pieces of the mattress and burnt them using the kerosene oil to show that the death had resulted due FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 53/69 to fire on account of short circuit. The CFSL report and the report of the Fire Officer clearly rule out this possibility. The facts and circumstances rather show that the body was set on fire after the death. In the instant case, the post mortem was also photographed and videographed. The prosecution has examined all the link witnesses to rule out the possibility of tampering with the body or the material seized during investigation.
48. Facts and circumstances of the present case also show that the deceased was found lying naked on the bed of the room on the first floor. Her panty and salwar were lying in partially burnt condition. Lacerated wound 2.5 cm X 1cm X 0.1 cm was present on the undersurface of upper lip and 3cm X 1cm X 0.1cm was present over undersurface of lower lip across midline. Lacerated wound of size 2cm X 0.5 cm, mucosal deep was present over 6 O'clock position at the vaginal orifice alongwith extravasation of blood and reddish coloured bruise of size 3 cm X 2cm was present on lateral wall of vagina on right side. The post mortem also shows multiple fibroids present in the uterus. There was prolapse of posterior vaginal wall of vagina. PW 24 has stated that Injury No. 4 was suggestive of forcible sexual penetration. He has stated that the injuries mentioned in the post mortem report could be due to penetration or penetrative attempt.
49. It is true that the exhibits of the deceased and her clothes on DNA analysis negate the presence of the semen of the assailant in the vaginal slides of the deceased but it is not out of context to mention that it is not necessary that every penetration would always result into discharge or emission of semen. Simple penetration would amount to rape as defined u/s 375 IPC. The injuries reported in the post mortem report clearly suggest that the deceased was first raped and then strangulated to death.
Testimony of PW24 shows that there were external post FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 54/69 mortem injuries and the injuries described at Srl. No. 5 and 6 of the report Ex. PW24/A are post mortem in nature and suggest that they were caused after the death of the deceased. The injury at Srl. No.6 in the report was suggestive of ligature strangulation post death. He has stated that the absence of soot particles in trachea was clearly suggestive that burn injuries mentioned at Srl. No. 5 were caused after the death of the deceased. He stated that in case of ante mortem injuries, the soot particles are generally found in trachea however it may disappear with the passage of time. The above facts clearly show that the assailant after committing the rape and strangulating the deceased to death, in order to disappear the evidence, burnt the body using the kerosene oil. The presence of kerosene oil is also proved from the CFSL report Ex. PW 6/B.
50. It was contended by Ld defence counsel that PW24 in his testimony has stated that from the reports and observations, it can be presumed that the death had resulted on 07.07.2014 between 12 p.m to 4.00 p.m which is not the case of the prosecution. Perusal of the post mortem report would show that no such time as coming in the testimony of PW24 has been mentioned in the report Ex. PW24/A. In the report, the time since death has been mentioned as about 23 days. It has come in the testimony of PW3 that Mrs Jolly had seen the deceased in the part at 7.00 p.m. The accused has also admitted that the deceased had gone to the park at about 5.30 p.m. The dead body of the deceased was recovered at about 10.00 p.m. All these facts and circumstances clearly show that the death had resulted after 7.00 p.m and before 10.00 p.m.
51. It is thus proved that the deceased was raped before her death and the death was homicidal not the natural one. The deceased was set on fire after her death by the offender with an intention to cause the FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 55/69 evidence to disappear to screen himself from legal punishment. As such, Circumstances No. 7 and 8 stand proved.
Circumstance No. 9, 10,11, 12 and 13:
9. The exclusive presence of the accused at the place of occurrence in the said building between 8.00 p.m to 9.00 p.m when the death had taken place. ( no one except the accused entered and came out from the ground floor and first floor of the building between8.00 p.m to 9.00 p.m, the time when the death had taken place).
10. The conversation held between PW28 Security Guard Santosh and the accused coupled with his abnormal/unusual conduct of going upstairs at about 8.00 p.m and coming back downstairs at about 9.00 p.m after an hour which was the time when the offence took place.
( Meeting of the accused with the Security Guard PW28 when he came on duty at 8.00 p.m and rang the bell and his telling to the Security Guard not to disturb the deceased and stating that she was sleeping, he would inform the deceased about his coming. At about 9.00 p.m, he told the Security Guard that the deceased has yet not returned from the evening walk.)
11. Continuous presence of the accused at the scene of crime to give an appearance that he was not involved in the crime.
12. The disclosure statements of the accused and the recovery of the incriminating material from the possession and at the instance of the accused.
13. Contradictory and inconsistent statements by the accused with regard to the presence of the Security Guard PW28.
52. Testimony of PW2 reveals that when he reached the place, Security Guard Santosh was present. He was engaged by the tenant on the third floor to look after the security of the building. He had enquired from FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 56/69 him if he had seen the deceased when he joined his duty at about 8.00 pm. He told him (PW2) that he came at 8.00 pm and rang the bell but she did not respond. He instead saw the accused coming downstairs to the parking area. The accused told him that 'tum duty pe aaye ho, jahan bethte ho beth jao. Mataji uper hai, me unko bata dunga ki tum duty par aa gaye ho'. It is true that the complaint Ex. PW2/A does not find mention about the enquiry made by PW2 from the security guard but testimony of PW2 would show that the Security Guard had told him this fact at about 1.00 a.m. Perusal of the rukka would show that it was sent at 12.10 a.m.
53. PW28/Security Guard Santosh has stated that he was Security Guard at the aforesaid place from June, 2014 to July 2014. His duty hours were from 8.00 p.m. to 8.00 a.m. The deceased used to live on the ground floor. When he used to come on duty at about 8.00 p.m, he used to ring the bell of the ground floor. Mataji/deceased used to come out in the balcony and sometimes at the staircase and ask him for water, tea, bread, roti etc. She used to mark his attendance. He stated that the tenant on the third floor had engaged him as Security Guard. On 07.07.2014 at about 7:50 / 7:55 p.m., when he came on duty, he rang the bell but mataji did not come out nor she responded the bell. While he was just thinking what to do, he saw the accused coming downstairs hurriedly. Accused said to him "santosh tum aa gaye ho, jahan baithe ho baith jao, mataji abhi aram kar rahi hain, mai unhe bata dunga ki tum duty pe aa gaye ho". The accused thereafter went upstairs. At that time, he was looking strange and he appeared to be scared and nervous. He stated that he did not see mataji on that day. He stated that after about an hour or so, the accused came downstairs and sat next to him. At that time also, he was quite nervous (us samay bhi bahut ghabraya hua tha). He murmured for few minutes saying FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 57/69 that mataji had gone for the evening walk and has not come back. He(PW28) then confronted him with his earlier version that when he(PW28) came on duty, he(accused) was saying that she was taking rest upstairs and now he is saying that she has not returned from the evening walk. The accused then told him that he is going to inform the next door neighbour regarding the missing of mataji.
54. Testimony of PW 28 would also show that during the period when the accused went upstairs and returned after about one hour or so, no one came at the premises nor anyone went upstairs. He has stated that after sometime, a lady from the neighbour called the police and daughter of mataji and her family members including PW2 also came there. He stated that they found the dead body of mataji at the first floor of the premises. He stated that on that night, Manmohan had asked him whether he had seen mataji when he came on duty, he then narrated him the entire facts. He has stated that the accused had been living in the servant quarter in the parking area of the building. He stated that he was on his seat from 8.00 p.m to 11.00 p.m on the ground floor parking and he did not go anywhere. PW2 had come at 11.00 p.m. During the period from 8.00 p.m to 11.00 p.m, when he was on duty, no one talked to him. He has categorically denied that he has deposed at the instance of PW2 and he never worked as Security Guard in the premises.
55. The accused in his statement recorded u/s 313 CrPC has admitted that the Security Guard namely Santosh was employed by the tenant on the third floor for the security of the building and PW2 had asked from the Security Guard Santosh if he had seen the deceased coming back when he joined his duty at about 8.00 p.m. In his supplementary statement recorded u/s 313 CrPC, he changed his earlier statement and FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 58/69 stated that he never saw PW28 Santosh as a Security Guard on duty on 07.07.2014. He stated that PW28 was not on duty nor he worked as Security Guard at the aforesaid premises. In the instant case, the accused had examined himself as DW1.
56. The accused/DW1 has stated that Bhuvan used to cook the food for her. Mataji used to call him to serve her food but on that day, she did not call him. He tried to call her on her phone but he could not connect. He admitted that the guard whom he referred in his deposition used to come on duty at around 8.00 p.m. His duty hours were from 8.00 p.m. to 8.00 a.m. He used to live in the servant quarter at the parking area. He also admitted that he used to interact with that guard and when he came downstairs, the guard was standing near the main entrance. He stated that he does not know the name of the guard but the guard had been working since when he joined as servant with mataji. He also admitted that between time 8.00 p.m to 9.00 p.m, the guard did not go to either of the flat nor any person from outside came in the building.
57. It has also come in the testimony of PW 26 that a Security Guard was deputed in the building. He used to sit at the main gate of the building. His duty timings were from 8.00 p.m to 8.00 a.m. He had made enquiry from him. He had told him that usually the deceased used to return from the evening walk at about 8.00 p.m. He also told him that he had seen the accused in frightened condition who told him that madam(deceased) has not come after the walk even after 9.00 p.m. He has stated that the Security Guard had told him this fact at about 1.00 a.m however he did not record his statement but he had mentioned this fact in the police diary.
58. It is true that when the chargesheet was filed, the prosecution did not cite the Security Guard/ PW28 as witness but perusal FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 59/69 of the case diary maintained during investigation would show that PW26 had made enquiry from the Security Guard. He had also recorded his particulars. He denied that he did not make any enquiry from the Security Guard. In the case of Mahavir Singh v. State of Haryana, AIR 2001 SCC 2513, it was observed that section 172 CrPC deals with the diary of proceedings in investigation. The court has the discretion under sub sections of 172 to use case diaries to decide on a point.
59. I do not agree with the contention of Ld. Counsel for the accused that PW28 was an introduced witness and PW2 had introduced him after his first examination or that he was not the Security Guard at the said building. Testimonies of PW2, PW26 and PW28 and the case diary of which the court can take judicial note in view of the section 172 sub clause 2 of CrPC clearly prove the presence of PW28 on the spot on that day as Security Guard.
60. It is relevant to mention that the accused in his statement recorded u/s 313 CrPC, took the contradictory stand as to the presence of PW28 on the spot. In his first statement, he admitted that Security Guard Santosh was on duty on that day but in his subsequent statement, he stated that PW28 was not the Security Guard. He did not state as to who was the Security Guard on that day. In the case of Sujit Biswas v. State of Assam (2013) 12 SCC 406 it was held that in a criminal trial the purpose of examining the accused u/s 313 CrPC is to meet the requirements of the principle of natural justice. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him and the court must take note of such explanation. In the case of Brajendra Singh vs. State of M.P, AIR 2012 SC 1552, it was held that the statement of an accused u/s 313 CrPC can be used as an evidence FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 60/69 against the accused in so far as it supports the case of the prosecution. In the case of V K Sasikala v. State, AIR 2013 SC 613, the answers given by the accused in his examination, if correct or incomplete, may also jeopardice him as such incorrect or incomplete answers may have the effect of strengthening the prosecution case against the accused. The false denial can also be used as incriminating evidence against him. In the case of Munna Kumar supra, it was held that statement of section 313 CrPC is to serve a dual purpose, firstly to afford to the accused an opportunity to explain his conduct and secondly to use denials of the established facts as incriminating evidence against him.
61. I am conscious of the law that wrong statement made by the accused cannot be read as an incriminating material against him in all the situations but when there are positive and cogent evidence against him, it can certainly be read as incriminating material against him and may constitute as an additional evidence against him. In the present case, the statement of the accused recorded u/s 313 CrPC admitting the presence of Security Guard at the relevant time before his examination in the court and his subsequent denial regarding his presence under his statement recorded u/s 315 CrPC as defence witness coupled with consistent deposition of Security Guard PW28 unerringly establishing his presence, goes against the accused and can be read against him as an incriminating circumstance.
62. Facts and circumstances of the present case show that the accused was the full time servant of the deceased to take care of her. Usual time of return of the deceased from the evening walk was 7.30 p.m. He informed the neighbour/PW3 at about 9.15 p.m. He also informed the daughter of the deceased in USA at the same time. It is not understood why he took so long to inform about the missing of the deceased. Suspicion FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 61/69 started when he had met PW28, the security guard posted there, at about 8.00 p.m, telling him to sit there, deceased is upstairs and he would inform her that he has come on duty. Again at 9.00 p.m, he came to PW28 and murmured that the deceased has not returned from the evening walk.
63. Facts and circumstances further show that during the period from 8.00 p.m to 11.00 p.m, PW28 was on his duty at the ground floor parking and did not go anywhere and no one except the accused talked to him. Between 8.00 p.m to 9.00 p.m, the guard did not go to either of the flat nor any person from outside came in the building. It goes to show that except the accused, no one was present in the building i.e at the ground floor and the first floor where the deceased used to live and from where her dead body was recovered. Since the prosecution has established the exclusive presence of the accused during the period when the incident took place, the burden was on the accused to explain the circumstances. It was held in the case of State of Rajasthan v. Kashi Ram (2006) 12 SCC 254 that the provisions of Section 106 of the Evidence itself unambiguous and categorical in laying down that when any fact is specially within the knowledge of a person, the burden of proving the fact is upon him. Thus, if the person is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so, he must be held to have discharged the burden. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed upon him by section 106 of the Evidence Act, that itself provides an additional link in the chain of circumstances proved against him. In the case of Smt. Basanti v State of Himachal Pradesh, AIR 1987 SC 1572, it was held:
FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 62/69 "Where it had been established by the prosecution witness beyond all reasonable doubt that the deceased was murdered in his bedroom by a blow with an axe on the neck while he was asleep, as a result of which the head was decapitated from the body and there was no one else in the house except the accused, wife of the accused and she alone could have an access to the bedroom and there was evidence that she put the villagers including her brotherinlaw on a false track by telling that the deceased had gone away from the village and had not returned, conduct of hers was clearly admissible u/s 8 of the Evidence Act as part of res gestate as a evidence of conduct immediately after the occurrence".
64. In the case of Asha Devi supra, it was observed that it was for the appellant to state that as to how the body of the deceased Anil Kumar Mehto came to be buried in the house. It is not her case that she was not present in the house. It is also difficult to believe that somebody would have killed the boy and brought and buried the dead body inside the house of the appellant. In fact, the appellant had also no such case that the dead body was brought inside the house and buried by someone. It was held that the prosecution has established that the deceased who was left in the company of appellant was found missing, the appellant gave false reply from where the foul smell was emanating, the dead body was found buried inside the house and the appellant after arrest pointed the place where the blood stains were noticed by the police and the fact that the appellant produced the weapon coupled with her false statement and total denial conclusively show that the appellant and the appellant alone committed the murder and buried the dead body inside the house.
65. In the instant case also, the dead body was recovered from the first floor. The accused when questioned, gave false replies. He got FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 63/69 recovered the kerosene oil, knife and the match box which he used in the commission of the crime. His false statement and total denial completely show that it was he and only he who committed the said act.
66. Now coming to the disclosure statements of the accused and the recovery of incriminating material from his possession and at his instance, testimony of PW26 reveals that the accused was changing his statements during enquiry and they became suspect. They then interrogated him and he disclosed of his involvement in the present incident. Pursuant to the disclosure, the accused got recovered the knife, kerosene oil bottle and the match box from his room. It is well settled law that information given by the accused leading to discovery would be admissible in evidence in view of Section 27 of the Evidence Act. In this case, the site plan of the place of recovery of above articles was prepared. PW2 had also witnessed the recovery. The place was also photographed. It is true that no other public witness was joined while effecting the recovery and there were no chance prints on the aforesaid articles Ex. MO6 and Ex. MO7 which PW2 identified during evidence but nothing can be inferred on the appreciation of the testimony of above witnesses that the above articles were planted on the accused. The FSL report clearly establishes that kerosene oil was used to burn the body. Joining public witness is a rule of caution and it is not a rule of law. In the instant case, the witnesses of recovery were crossexamined at length but they remained consistent and cogent as to the recovery of incriminating articles from the servant quarter of the accused at his instance. It is also relevant to mention that the place from where the recovery was effected was in exclusive possession of the accused and no one had access to that room. I do not find force in the contention of Ld defence counsel that it is a case of planted recovery. In FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 64/69 the instant case, there were post death injuries including the burn injuries. It shows that the deceased was set on fire after murder to give a colour that she died of burn injuries.
67. As regards recovery of clothes of the deceased on 11.07.2014 from the park of S block, testimonies of PW21 and PW26 would show that the park from where the recovery was effected was well maintained park by the MCD. The accused when interrogated on 08.07.2014 did not disclose that he had thrown the clothes in the dustbin of the park. He later disclosed about throwing of clothes in the park. While effecting the recovery, no witness from the park was joined. It is unbelievable that the dustbin of the park was not cleaned for three days. In these circumstances, the recovery of clothes from the park becomes suspect and cannot be believed. Further, the clothes of the accused were sent to CFSL but nothing incriminating was found from the clothes to inculpate the accused. Even then, this itself does not prove fatal to the case of the prosecution. The testimonies of PW2, PW28, PW21 and PW26, medical and CFSL reports prove the exclusive presence of the accused at the scene of crime. There was recovery of incriminating articles at his instance which were used for the commission of the crime.
68. Ld counsel for the accused has contended that had the accused been involved in the offence, he would not have stayed there and run away from there. I do not find merit in this contention. It has come in evidence that the deceased was first raped and then strangulated to death. It has also come in the evidence that the accused was capable of performing sexual intercourse under normal circumferences. In order to give colour that the deceased had died due to fire, her body was set on fire using the kerosene oil. The accused had tried the evidence to disappear. He created FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 65/69 an impression that to the neighbour and daughter of the deceased he did not know anything though everything was in his knowledge. He showed his innocence after the incident but while committing the crime he was looking nervous as evident from the testimony of PW28. He also changed his statement from time to time which made his conduct highly suspect and his conduct as deposed by some of the prosecution witnesses does not fit in with the normal human conduct of a guilty person. By normal standards, this certainly is a very unusual conduct. It was held in the case of Gulam Majibuddin supra that the evidence of false explanation is not only relevant u/s 8 of the Evidence but is of the considerable importance when it was given soon after the alleged occurrence and was apparently designed to give to the facts and appearance favourable to the accused. From the evidence adduced by the prosecution as discussed above, circumferences nos. 9, 10, 11, 12 and 13 also stand proved.
Circumstance No. 14Motive of the murder.
69. In the instant case, no direct/circumstantial evidence came as to the motive of the accused to commit the said offence.
70. It is true that in a case based on circumstantial evidence, the motive play an important role but it is also settled that sometimes in circumstantial evidence, if the evidence is strong, even if the motive is not proved, the accused can be convicted.
71. In the case of Suresh Chandra Bahri v. State of Bihar AIR 1994 SC 2420, it was held that:
"Sometimes motive play an important role and becomes a compelling force to commit a crime and therefore, motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 66/69 prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention. In a case where there is clear proof of motive for the commission of the crime it affords added support to the findings of the court that the accused was guilty for the offence charged with. But the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to a certain course of action leading to the commission of the crime."
72. In the case of Krishna Pillai v. State of Kerala, AIR 1981 SC 1237 it was held that it is not a sine qua non for the success of the prosecution that the motive must be proved. So long as the other evidence remain convincing and is not open to reasonable doubt, a conviction may be based on it.
73. In the instant case, there are sufficient incriminating evidence which conclusively prove that it was the accused and only the accused who did the said act. The evidence adduced by the prosecution are convincing and do not leave any reasonable doubt as to give benefit to the accused. To sum up
74. In the instant case, the prosecution has proved that the deceased was an old lady aged 81 years. She used to live alone on the ground floor of the house. The accused was the full time servant to look after her. The first floor was in the occupation of her daughter Sadhna Mohan. The tenant on the third floor had employed Security Guard/PW28 from 8.00 p.m to 8.00 a.m for the security of the building. He used to report the deceased of his arrival by ringing the bell of the ground floor. The deceased used to go for evening walk from 5.30/6.00 p.m and come FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 67/69 back at about 7.00/7.30 p.m. Testimony of PW28 and the material available on record prove that from 8.00 p.m to 10.00 p.m PW28 was on his seat on the ground floor parking and he did not go anywhere. During that period, no one except the accused talked to him. Between 8.00 p.m to 9.00 p.m, the guard did not go either of the flat nor any person came in the building. It was only the accused who was present in the building. The accused informed PW3 at about 9.15 p.m about the missing of the deceased. The body was recovered from the first floor of the building. She was naked from waist. She was strangulated to death as coming from the post mortem. The accused also set the body on fire using the kerosene oil. The accused got recovered the match box, kerosene oil bottle and the knife from his servant room at the parking. The deceased was first raped and then strangulated to death. The accused sought to creat an impression to the neighbour and daughter of the deceased that he did not know anything though everything was in his exclusive knowledge.
75. Nevertheless in a criminal trial prosecution has to prove its case beyond reasonable doubt but the doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth to constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantive, should not be mere vague apprehensions. A fair doubt is based upon decision of common sense. In Sucha Singh and another v. State of Punjab J.T.2003(6) SC 248 it has been ruled that exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. It was also FIR No. : 214/14 PS : C R Park State Vs. Neeraj Safi Page No. 68/69 reiterated in Gurbachan Singh v. Satpal Singh and others AIR 1990 SC
209. In case State of U.P v. Ashok Kumar Srivastava AIR 1992 SC 840 it was held that prosecution is not required to meet any and every hypothesis put forward by the accused.
Conclusion
76. After appreciating the testimony of the above witnesses, in the above circumstances, I am of the view that the prosecution has been able to form the chain of circumstances and has completely ruled out the hypothesis that the accused is not guilty. The chain of evidence in the instant case is complete and it leave no reasonable doubt for the conclusion consistent with his innocence. The circumstances fully establish the guilt of the accused. The facts and circumstances show that it was the accused and only the accused who raped the deceased, strangulated her to death and then set her body on fire causing the evidence of the offence disappear with an intention to screen himself from the legal punishment which are the foremost ingredients of the offences punishable u/s 376, 302 and 201 IPC.
77. I, therefore, hold the accused guilty of the offences punishable under section 376 and 302/201 IPC and convict him thereunder.
78. Let the accused be heard on the point of sentence on the date as fixed by the court.
Announced in the open court ( Sanjiv Jain)
on 31.01.2017. ASJ(Spl, FTC): SE: ND
FIR No. : 214/14
PS : C R Park
State Vs. Neeraj Safi Page No. 69/69