Delhi District Court
State vs Pooran Verma, on 31 October, 2009
IN THE COURT OF MANOJ JAIN: SPECIAL JUDGE (NDPS)
OUTER DISTRICT: ROHINI COURTS:
DELHI
SC No.60/2008
FIR No.222/2008
PS Uttam Nagar
U/s 302 IPC
State Versus Pooran Verma,
s/o Sh. Shankar Lal,
r/o H. No. 20D,
Balwan Ka Plot,
Nawada, Uttam Nagar,
New Delhi.
Date of filing : 01.10.2008
Date of conclusion of arguments : 21.10.2009
Date of decision : 30.10.2009
JUDGMENT
1 Accused Pooran Verma has been booked for committing murder of his wife Sangeeta.
PROSECUTION VERSION 2 Prosecution story, as unfolded from the charge sheet, reveals that accused Pooran Verma, his wife Sangeeta (deceased) and their son Master Aman (aged six years) used to reside at tenanted room situated at First Floor, Plot No. 20 D, Nawada, New Delhi. Jyoti was their neighbour and there used to be frequent quarrel between accused and his wife Sangeeta. Sangeeta used to confide in Jyoti and used to tell FIR No. 222/08 PS Uttam Nagar 1 her that her husband used to beat her up as he used to doubt her fidelity. Fourfive days before the actual incident also there was quarrel between them and due to such quarrel, Sangeeta had gone to her parental home but on 07.06.2008 accused brought her back. Incident is of 08.06.2008. Accused was beating up his wife Sangeeta black & blue. Jyoti informed Sanjay Verma (brother of Sangeeta) on his mobile about the same. Hearing that, Sanjay Verma along with his mother reached at the house of accused and there they saw accused strangulating Sangeeta with the help of a rassi/nara (cloth string). Sanjay Verma and his mother shouted for help and tried to rescue Sangeeta but Sangeeta went into unconsciousness. Police was informed. PCR van reached at the spot and Sangeeta was rushed to DDU hospital where she was declared brought dead. Sanjay Verma also claimed that his sister had been murdered by accused Pooran Verma as he doubted her character. Accused was arrested. Further investigation was carried out. Postmortem was got conducted. Several injuries were found on the person of deceased and as per the report of postmortem, cause of death was asphyxia caused by ligature strangulation along with manual smothering prior to strangulation. Medical FIR No. 222/08 PS Uttam Nagar 2 examination also revealed that deceased had been severely beaten up and there were injuries all over her body. Injury No. 7 i.e. ligature mark present around the neck was found to be sufficient to cause death. It would not be out of place to mention here that during course of the investigation, statement of Master Aman was also recorded and he also raised accusing finger towards his father. 3 After completion of investigation, chargesheet was filed before the concerned Magisterial Court on 03.09.2008. After compliance of Section 207 Cr.P.C., case was committed to the Court of Sessions.
4 Case was received on allocation by this Court on 01.10.2008.
5 Since accused did not have any legal assistance, Sh. Sachin Dev Sharma, Advocate was appointed as Amicus Curiae.
6 Accused was charged u/s 302 IPC vide order dated 23.10.2008. He pleaded not guilty and claimed trial. FIR No. 222/08 PS Uttam Nagar 3
WITNESSES FOR PROSECUTION 7 Prosecution was directed to adduce evidence and has examined fifteen witnesses viz PW1 Smt. Ram Wati (eye witness/mother of deceased Sangeeta), PW2 Sanjay Verma (eye witness/brother of deceased Sangeeta), PW3 Dr. Rishi (CMO DDU Hospital), PW4 HC Dharam Vir Singh (duty officer), PW5 Ms. Jyoti (eye witness/neighbour of deceased Sangeeta), PW6 Dr. B.N. Mishra (doctor who had conducted the postmortem of the body of deceased), PW7 Balwan Singh (owner of house), PW8 Master Aman (eye witness/son of accused and deceased), PW9 SI Mahesh Kumar (draftsman), PW10 Sh. Jagdish Verma (father of deceased), PW11 Ct. Rajesh Kumar (photographer), PW12 Ct. Anup Singh, PW13 ASI Ram Gopal, PW14 Insp. Devraj Singh (investigating officer) and PW15 SI Rajvir Singh.
STANCE OF ACCUSED BEFORE THE COURT 8 Accused, in his statement u/s 313 Cr.P.C., pleaded innocence. He admitted that he was residing with his family at the house in question but claimed that there was no quarrel between him and his wife barring minor dayto FIR No. 222/08 PS Uttam Nagar 4 day bickering. He also claimed that he never demanded any money from his wife Sangeeta. He also claimed that he had brought his wife Sangeeta from her parental home on 07.06.2008 but they did not bring Aman with them and Aman was left at her Nani's (maternal grandmother's) house. He also claimed that on the day of incident he had gone to Bhairon Temple situated at Purana Qila and he had left his house early morning i.e. 6.30 AM and Sangeeta was Okay at that time. He returned at 12.30 PM and then he met his motherinlaw and brotherinlaw in the gali outside his house. They all went upstairs and saw that the door was bolted from outside and then they had seen Sangeeta lying on the floor. He also claimed that Sangeeta was lying almost naked and he also found some semen like stain at the spot and some semen fluid was also lying there. He further claimed that it looked like as if somebody had forcibly sexually assaulted Sangeeta and in that process Sangeeta had been killed. He also claimed that he had been falsely implicated by the police as police, instead of investigating the other possible theory of rape and murder by someone else, had chosen easy way of implicating him in this false case in connivance with the complainant party. He also claimed that FIR No. 222/08 PS Uttam Nagar 5 Sanjay had borrowed a sum of Rs. 40,000/ from him and he did not want to return the same to him and he also claimed that his parentsinlaw were not happy with him as he never acted as per their wishes and, therefore, he has been falsely implicated. Accused, however, did not choose to lead any evidence in defence.
9 Unquestionably, hollowness of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea by defence can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused. In this connection, reference may be made to SHANKERLAL GYARASILAL V. STATE OF MAHARASHTRA, AIR 1981 SC
765. CONTENTIONS OF PROSECUTION 10 Learned Addl. P.P. has contended that prosecution has been able to prove its case to the hilt. She has contended that testimony of Sanjay Verma, his mother Ram Wati and Master Aman clearly indicates that accused had murdered his wife Sangeeta. She has also argued that FIR No. 222/08 PS Uttam Nagar 6 they all have given convincing and trustworthy version of the incident in question and there is no reason to disbelieve them. She has argued that in view of ocular testimony on record as given by the said three witnesses, prosecution has been able to prove its case beyond shadow of doubt. Admittedly, according to the case of prosecution, Jyoti was also eye witness and she had also seen the murder taking place with her own eyes but in witness box she has not supported the case of prosecution to that extent and claimed that she never went inside that room that day. Learned Addl. P.P. has claimed that though Jyoti has not fully supported the case of prosecution yet her testimony cannot be permitted to be completely effaced from the record and she has supported the prosecution case on all the other vital issues and, therefore, to that extent, her testimony is liable to be read, considered and believed. She has argued that there is nothing on record which may show that accused had been falsely implicated either by the police or by the complainant party. It has been argued that there is nothing on record which may suggest as to why Master Aman would depose against his own father. She has also argued that no case is perfect and minor contradictions are bound to appear in FIR No. 222/08 PS Uttam Nagar 7 every criminal trial more so when a murder is witnessed by four persons. She has argued that power of perception and retention of facts differs from person to person and, therefore, such contradictions normally appear during trial. She had contended that there is no contradiction in the case in hand which may demolish the case of prosecution. She has also argued that even medical evidence fully supports the ocular evidence and all the relevant documents have been duly proved and all the police officials have also entered into witness box and even call details, which have not been disputed by the defence, clearly indicate that on the day of the incident, there was telephonic conversation between Sanjay and Jyoti and pursuant to such conversation only, Sanjay had reached at the spot along with his mother.
DEFENCE CONTENTIONS 11 Sh. Sachin Dev Sharma has, on the other hand, refuted all the aforesaid contentions. He has contended that all the four eye witnesses have come up with inconsistent stand and they are not walking along the case of prosecution at all. He has argued that if prosecution case is to be believed then Jyoti was the first person who had seen the quarrel and FIR No. 222/08 PS Uttam Nagar 8 informed Sanjay Verma about the incident and she along with Sanjay and mother of Sanjay had entered the house of the accused and saw accused strangulating his wife but in witness box she has categorically claimed that she did not got inside the house. He has argued that her complete contrast stand has created a serious doubt in the veracity of the case of prosecution. He has also claimed that even Sanjay Verma and Ram Wati do not seem to be the eye witnesses. It has been argued by him that Ram Wati herself has claimed that when she reached at the house of accused, the door of the house was opened by accused Pooran Verma and thereafter she entered the house and her son followed her thereafter. He has argued that this fact clearly shows that when she reached at the spot, door was bolted from inside and it was opened up by accused Pooran Verma and, therefore, in such a situation, story that accused was seen strangulating his wife stands evaporated altogether. He has, thus, contended that testimony of Ram Wati and her son Sanjay Verma clearly indicates that they are not the eye witnesses and rather they are false and planted witnesses. As regards Master Aman, it has been argued that even Master Aman is not an eye witness. He has also argued that there is nothing to show as FIR No. 222/08 PS Uttam Nagar 9 to why statement of Master Aman was recorded u/s 161 Cr.P.C. after a massive delay of two months and ten days. He has argued that he was tutored by his maternal grandparents and maternal uncle. He has also argued that his crossexamination clearly reveals that he had not seen alleged act of murder and his testimony also flattens the claim of prosecution. He has also relied upon various judgments in order to show that it is highly unsafe to solely rely upon on the account of child witness as there is great possibility of his being tutored. Sh. Sharma has further contended that investigation has not been carried out in fair and proper manner and true material facts have been concealed deliberately and one lady neighbour was not examined during investigation. He has also argued that FIR was also dispatched through special messenger to the senior officers and to learned Metropolitan Magistrate belatedly which also indicates that a false story was cooked up. He has also argued that investigating agency did not choose to seize the clothes of the deceased and did not investigate the angle of sexual assault and murder by some unknown intruders. He has also argued that even medical evidence suggest that injuries in question were handiwork of more than one person FIR No. 222/08 PS Uttam Nagar 10 as smothering was done by one person and strangulation was done by another and, therefore, possibility of involvement of more than one person cannot be ruled out at all. He has also argued that had accused been killer, he would not have taken the risk of being there at his house and would have rather run away to escape from the clutches of the law. He has also argued that prosecution sought to rely upon the tutored and false evidence of child witness in order to garner sympathy and in order to create prejudice against accused and, therefore, accused shivered with the fear and made contradictory statement at the time of his examination u/s 313 Cr.P.C. He has argued that his such stand should not be considered even otherwise as it is the primary duty of prosecution to prove its own case with positive, convincing and trustworthy evidence. He has argued that false explanation given by the accused cannot by itself be said to be sufficient to convict him.
12 Detailed synopsis/written arguments were also filed by learned defence counsel.
FIR No. 222/08 PS Uttam Nagar 11 13 I have given pensive consideration to the rival contentions and carefully perused the entire material available on record.
14 Sh. Sharma has kicked off the arguments claiming that Court is not supposed to be swayed away by the sentiments and emotions emanating from the heinousness of the crime. He has argued that the greater the crime the stronger is the proof which is required. Such legal proposition cannot be disputed. Gravity of the offence cannot outweigh legal evidence. It is primary duty of the prosecution to prove its case beyond shadow of doubt. Naturally when the matter is of serious magnitude, it becomes incumbent upon the prosecution to place on record stronger proof.
15 It is also not in dispute that in criminal trial prosecution has to prove its case beyond reasonable doubt and the principle of preponderance of probabilities has no applicability to criminal trial.
FIR No. 222/08 PS Uttam Nagar 12 16 Sh. Sharma has argued that prosecution is duty bound to prove its case as set up in the chargesheet and prosecution cannot change its stand or stance and cannot be permitted to take the advantages out of the weaknesses or infirmities of defence version. He has also argued that even the Court cannot, of its own, make out a new case for prosecution and convict the accused on that basis. In this regard he has relied upon one judgment cited as BHAGIRATH VS. STATE OF MADHYA PRADESH AIR 1976 SC 1973. On the strength of aforesaid judgment, he has argued that prosecution has miserably failed to prove its case as was set up in the chargesheet. He has argued that there were four alleged eye witnesses of the incident but all these alleged eye witnesses are rather false and planted witnesses and their testimony do not inspire any confidence and, therefore, accused cannot be convicted merely on the basis of contradictory stand taken by accused while he was examined u/s 313 Cr.P.C.
17 It would be now appropriate to see as to what all these four eye witnesses had claimed before the investigating agency and what has been deposed, actually, by them before FIR No. 222/08 PS Uttam Nagar 13 the Court.
STAND OF JYOTI BEFORE POLICE 18 Jyoti had claimed before the police that accused used to beat his wife Sangeeta as he used to suspect her character. She also claimed that 45 days before the incident also there was quarrel between the two due to which Sangeeta had gone to her parental home. She further claimed that accused brought her back a day before the incident and on 08.06.2008, accused was beating up Sangeeta very badly and on hearing such noise of maarpeet, she informed Sanjay Verma on his mobile phone. She further claimed that such quarrel between Sangeeta and her husbandaccused went on for some time and in the meanwhile Sanjay and his mother reached there and she along with them went to the room where accused and his family used to live and they all saw that the clothes of the Sangeeta were badly torn and one rassi/nara was around the neck of Sangeeta and accused was pulling rassi/nara with his both hands.
FIR No. 222/08 PS Uttam Nagar 14
STAND OF JYOTI BEFORE COURT 19 PW5 Ms. Jyoti has deposed before the Court that she used to meet Sangeeta on several occasions. She also claimed that she was having a very good nature and Sangeeta also used to complain her about her husband claiming that accused had no income and accused did not use to give any money to her. She gave details about one incident which had taken place two days prior to her death. It was deposed by her that at that time Sangeeta had come to her and told her about the troubles created by accused and Sangeeta also asked for police assistance. Jyoti further deposed that Sangeeta confided in her as she (Jyoti) was having political link. She also deposed that she had gone to the house of accused same day and had talked to him. She also claimed that at that time quarrel was taking place as Sangeeta had brought money from her parents to clear the rent and school fee but such amount was spent by accused on a callgirl. She further deposed that Sangeeta came again to her that day within two hours and then call was made to police at about 10.00 PM and two police officials came from local police station and took accused to PS where he remained overnight and same night at the asking of Sangeeta, her parents were FIR No. 222/08 PS Uttam Nagar 15 informed who came there and took Sangeeta back with them. She further claimed that next day, Sanjay informed her that accused had been released by the police. She further deposed that later on Sanjay again called her up and told that there was some patch up with the accused and his wife and the both along with their son would be again coming back to their house as accused had assured that he would not trouble Sangeeta again. Now comes the most important part of her testimony. She deposed that next morning i.e. on the day of incident, at about 8.00 AM, she had received a call from Sanjay who wanted to know about the wellbeing of his sister and she told him that she had not seen his sister that morning but had seen the accused. She claimed that she again received a call from Sanjay to the same effect and she again told him that she had not seen Sangeeta and suspected some foul play and asked him to come there immediately with his mother as she had not seen Sangeeta that morning. She further claimed that they came within 15 minutes and on noticing them, accused came downstairs and blocked their way so that they could not reach upstairs. She also deposed that accused had claimed that Sangeeta was not there at the house and she had gone to doctor.
FIR No. 222/08 PS Uttam Nagar 16 20 Jyoti took a major deviation from her previous stand and deposed that since she had some urgent work, she left her house and came back within half an hour and even then she straightway went to her house as accused had closed the door from outside with kundi. She also deposed that one lady who was their neighbour on the same floor opened such kundi and found Sangeeta dead. She also categorically claimed that she did not herself enter that room that day. Since she was found resiling from her previous statement, she was crossexamined by the prosecution with the permission of the Court. Despite her exhaustive crossexamination done by learned Prosecutor, she remained adamant to her stand taken in the examinationinchief and claimed that she never went inside that room of accused along with Sanjay and his mother and never saw clothes of Sangeeta in badly torn condition and she also denied that she had seen accused pulling a rassi which had been put across the neck of Sangeeta. She volunteered that had she entered the room that day and seen any such incident, she would have rather tried to rescue her. She also denied that she herself had called up Sanjay. She also claimed that it was wrong to suggest that Sangeeta had told her that the reason behind the quarrel was that her FIR No. 222/08 PS Uttam Nagar 17 husband used to doubt her character. She also deposed that she herself had not overheard the quarrel between accused Sangeeta that day and she was told about the quarrel by one lady neighbour.
21 I have seen the crossexamination conducted by learned defence counsel as well. In her such cross examination, she claimed that police did not make any inquiry from her and she herself had not told anything in this regard to the police. She claimed that she had left her house for market for half an hour. She claimed that she had left for market at 10.00 AM and police had come around 12.30 noon. She also deposed that when neighbour had opened the kundi of the house of accused and found dead body then such lady neighbour started screaming loudly and lot of people collected there including herself. She claimed that thereafter Sanjay and his mother were able to come up after pushing the accused. She also claimed that it was wrong to suggest that accused was not preventing mother and brother of the deceased as accused was not present there at all. She further claimed that son of the deceased was also inside the house when door was opened by that lady neighbour. FIR No. 222/08 PS Uttam Nagar 18 22 It thus becomes very much apparent that Ms. Jyoti has not supported the case of prosecution on the most vital aspect of the case. According to prosecution, she had seen the incident of murder as she had seen accused strangulating Sangeeta with the help of rassi/string/nara which was wrapped around the neck of Sangeeta. However, in witness box, she has disowned such version and has claimed that after Sanjay and his mother had reached there, she left for market and when she came subsequently, she learnt about the death of Sangeeta. She remained adamant in her such stand and categorically claimed that she never went inside that room that day.
STAND OF SANJAY AND RAMWATI BEFORE POLICE 23 As per case of prosecution, on the basis of telephonic call made by Jyoti, Sanjay Verma reached at the spot with his mother Ram Wati and they saw Sangeeta lying on the floor and her clothes were badly torn and they also claimed that accused Pooran Verma was pulling cloth string/rassi with his both hands which was wrapped around the neck of Sangeeta. They both then shouted for help and tried to rescue Sangeeta and then police was informed. FIR No. 222/08 PS Uttam Nagar 19
STAND OF RAMWATI BEFORE COURT 24 PW1 Ram Wati has deposed before the Court that Sangeeta was married to accused Pooran Verma about eight years back. She also deposed that accused used to ask Sangeeta to bring money from them. She also claimed that a payment of Rs. 10,000/ was made on one occasion and another demand of Rs. 5000/ was also made on another occasion. She also claimed that such demands were made two years prior to the incident. He further deposed that three months prior to the incident, Sangeeta had come to her house and told that she had been given beatings by her husband. She also deposed that Sangeeta had not specified the reason of quarrel claiming that Sangeeta was very hesitant to say anything against her husband. She also deposed that she had asked accused as to why he used to give beatings to Sangeeta and then accused claimed that he would not give any beating to Sangeeta henceforth and on such assurance she sent Sangeeta with accused. Now comes the relevant part of her testimony. She claimed that on the next day a telephonic call was received by Sanjay from Jyoti and Jyoti told Sanjay that Sangeeta was being given beatings by accused. She deposed that at the time she was away to market. When she returned FIR No. 222/08 PS Uttam Nagar 20 her house, Sanjay told her about the telephonic call and she along with Sanjay went to the house of accused. She further deposed that on reaching the house of accused she found that Sangeeta was lying on the floor. She also deposed that she found Sangeeta unconscious and she was taken to DDU hospital where she was declared brought dead. She also deposed that her clothes were in torn condition and she had seen ligature mark on the neck of her daughter. She even claimed that her daughter had told her a day before the incident that she was in family way and her husband banged a hammer in her abdominal region. She, however, claimed that such fact was told to her by her grandson Aman and not by Sangeeta. She also deposed that Aman had told her that his father i.e. accused was beating up his mother and had strangulated her with a piece of cloth string. Question was put to her as to what did she see herself when she reached at the spot and then she answered that she had seen accused sitting on Sangeeta and accused was strangulating her with the help of cloth string i.e. nara and when she (Ram Wati) shouted, accused stopped that activity. 25 In her crossexamination, she also claimed that no one had accompanied her except Sanjay. She further FIR No. 222/08 PS Uttam Nagar 21 deposed that she had got the door of the house opened where accused and her daughter Sangeeta were residing. She also claimed that door was opened by accused. She further deposed that her son followed her and thereafter 30 more people had collected there.
STAND OF SANJAY BEFORE COURT 26 PW2 Sanjay has also given details with respect to the previous conduct of the accused. He deposed that there used to be quarrel between them very frequently and accused Pooran used to demand money from him very frequently. He also claimed that he had paid different amount to accused on different occasions. He also deposed that Sangeeta visited their house 45 days prior to the incident along with her son and told him that she was beaten up by the accused and accused also used to hurl filthy abuses on her. He deposed that Sangeeta stayed 34 days and thereafter accused came to their house in order to take her back. Sanjay also deposed that accused claimed that he would divorce her and wanted to take her along for such purpose. Sanjay also felt that in such a situation, divorce would be better option and they accordingly permitted accused to take Sangeeta for such FIR No. 222/08 PS Uttam Nagar 22 purpose and when instead of taking her to Court, accused started moving towards his house, Sangeeta came back. Accused came next day again and asked Sangeeta to accompany him but Sangeeta refused. He further deposed that accused then took his son Aman back but instead of taking Aman to his house, Aman was taken to the house of sister of accused. He also deposed that Sangeeta was worried about the wellbeing of her son and, therefore, she went to Najafgarh where sister of accused used to reside and shortly thereafter Munia (sister of accused) came there and told Sanjay that accused was even harassing her children (children of Munia). Accused also returned there at the house of Sanjay and he came along with Aman. Sanjay deposed that he went outside and made a call to the police and in the meanwhile his sister came back. Police also came and accused was taken to PS. Accused was, however, released within one hour and he again started quarreling and abusing and left their house. Accused, however, came back within half an hour and demanded food and food was served to him. He was advised not to quarrel with Sangeeta. Sanjay also deposed that it was found that there was some patch up between them and in the evening they both left along with FIR No. 222/08 PS Uttam Nagar 23 their son. He further deposed that next morning also, at about 9.0010.00 AM he received a call from Jyoti and Jyoti told him that there was quarrel going on between accused and Sangeeta and asked him to come there quickly. He further deposed that at that time his mother was not there and she came within half an hour and he then told her about the aforesaid call received from Jyoti. He along with his mother rook rickshaw and reached at the house of accused within 2025 minutes. He further deposed that he saw accused strangulating his wife with the help of one cloth string/nara while sitting near his wife. He shouted for help and in the meanwhile the neighbours also collected there. He further deposed that he made phone call to the police by dialing 100 and police reached there within 510 minutes. He also claimed that there were virtually no clothes on the body of Sangeeta when they reached at her house. He also deposed that Sangeeta was taken to DDU hospital by them and police and accused was also with them at that time. He also deposed that accused was dropped at PS and where he was arrested and Sangeeta was admitted in hospital where she was declared brought dead. He also proved his statement Ex. PW2/A on the basis of which FIR was recorded. He has also proved the seizure memo Ex. PW2/B (seizure memo of FIR No. 222/08 PS Uttam Nagar 24 broken bangles, hair and white cloth) and Ex. PW2/B1 (seizure memo of nara/cloth string). He also proved seizure memo of one photograph which is Ex. PW2/C. He has also proved arrest memo and personal search memo of accused during trial. Cloth string was also produced before the Court with the help of which accused had allegedly strangulated deceased. Such cloth string was identified by the witness as Ex. P1.
STAND OF MASTER AMAN BEFORE POLICE 27 Now let me take up the stand of Aman. Aman in his statement made before the police on 17.08.2008 claimed that his mother had been beaten up by his father and he pulled a rassi which was around her neck. (Mere papa ne use pita tha or gale mein rassi se khincha tha).
STAND OF MASTER AMAN BEFORE COURT 28 Master Aman has entered into witness box as PW8 and several court questions were put to him in order to ascertain whether he was tutored by anyone or not and whether he was ready to tell the truth. Since, he was found to be six years of age only, oath was not administered to him. FIR No. 222/08 PS Uttam Nagar 25 His examinationinchief is very brief and it would be appropriate if the same is extracted. It reads as under: Court Question What is your name?
Ans. Aman.
Court Question Do you study?
Ans. Yes.
Court Question In which school?
Ans. Meena Public
School, Nawada.
Court Question Do you know your
date of birth?
Ans. I do not know but I
had celebrated the
birth day.
Court Question Do you speak truth?
Ans. Yes.
Court Question Would you tell
truth today also?
Ans. Yes.
Court Question Has anyone tutored
you to speak
anything in
particular today in
the Court?
Ans. No.
(Keeping in mind the tender age of
child the oath is not being
administered today).
Q What was name of your mother?
Ans. Sangeeta.
Q Where is your mother now?
Ans. She is dead and I am living with
my Nana. Earlier I used to live
with my parents when my mother
was alive. Accused present in
court is my father.
Q Who had killed your mother and
how?
Ans. My father had killed her with the
help of a nara, hathora
FIR No. 222/08 PS Uttam Nagar 26
(hammer) and pachkas
(screwdriver).
Q Can you tell why did you father
kill her?
Ans. I do not know.
29 In his crossexamination, he claimed that on the
day of the incident, he had not gone to the school and incident had taken place during day time. He also claimed that he knew Jyoti aunt and there was one more aunt but he did not know her name. He also claimed that Jyoti aunt and other aunt had come when the quarrel was going on and they both had talked to his parents and Papa had gone downstairs and before that Nana, Nani and Mama had also come. He further claimed that police had come and opened the door. He also deposed that door was bolted (kundi lagi hui thi). He also claimed that it was wrong to suggest that he had been tutored by his Nana, Nani and Mama.
EVALUATION OF THEIR TESTIMONY 30 Let me now weigh up their testimony. As far as Jyoti is concerned as already noticed above, she, though, was an eyewitness and had seen the occurrence with her own eyes yet in witness box, she has not stated so. There can be two possibilities of her not deposing as per state case. Firstly, FIR No. 222/08 PS Uttam Nagar 27 she might be scared. Or, in alternate, she might have not actually seen the incident with her eyes at all. There is little chance of there being possibility of first option. She deposed courageously and withstood exhaustive cross examination as well. She even deposed that had she gone inside the room and had seen accused murdering Sangeeta, she would have rather tried to rescue her? This shows her genuine concern as well as her boldness. She does not seem to be a lady who could have succumbed to any pressure either of money or of fear. It does happen sometimes that police goes for padding of case to give unwarranted boost to the case of prosecution. After all, statement u/s 161 Cr.P.C. is not required to be signed by the maker. These provisions should undergo major modification. Law is not static and should not be permitted to be static. Once Lord Alfred Tennyson, famous poet had rightly said as under: "Old order changeth yielding place to new, ...................................................... Lest one good custom should corrupt the world." 31 Everyone should adapt itself to the changing times and justice delivery system should also be no exception. Hostility of witness is very common feature of any criminal trial. It can easily be curbed by bringing one minor change in FIR No. 222/08 PS Uttam Nagar 28 sec 161 Cr.P.C. Criminal Procedure Code was earlier brought in 1898. Not many people used to be literate those days. And therefore, police used to write statements made by them and the same used to be read over to them. More than 100 years have elapsed since then. Indians are much educated bunch now. This is E Era. If people know something about the crime and need to be cited as witnesses, they should give account of their version in their own hands. A copy of same can be supplied to them as well so that tomorrow they cannot take plea that they were forced to make a statement. If at all, they feel that have been forced to make statements, they can always come to court with necessary request immediately. Statements of people, who are illiterate and who happen to be material eyewitnesses, should be recorded by police with the help of audio recording devise. This would curtail the menace of hostility. It is expected that soon something is done in this direction so that general public start to have more faith in judiciary and money and muscle power take back seat if not evaporate altogether.
32 Be that as it may, in view of deposition of Jyoti, it becomes manifest that she had not seen the incident of FIR No. 222/08 PS Uttam Nagar 29 murder with her own eyes. Ram Wati has given the narration in sequence but in such sequence, she did not tell about accused committing the act of strangulation. When her examinationinchief was over, she was put a question by the prosecution as to what she saw when she reached at the house and then she deposed that she had seen accused sitting on Sangeeta and accused was strangulating her with the help of cloth string i.e. nara and when she (Ram Wati) shouted, accused stopped that activity. So far so good. But in her cross, she claimed two things which somehow create a doubt whether she or her son Sanjay had seen the incident with their own eyes or not. She claimed that when she went upstairs, the room was closed and she got the room opened and then accused had opened the room. This means that the incident was already over by the time she reached there. Since the door was closed and when she got the door opened, door was opened from inside by the accused. In such a situation, it cannot be expected that Ram Wati would have seen the actual strangulation herself. It's nobody's case that once the door was opened, thereafter accused strangulated Sangeeta in presence of her mother and brother. This is not probable either. She also claimed that her son remained FIR No. 222/08 PS Uttam Nagar 30 downstairs initially as he was paying autofare. This means that Sanjay also had no chance of seeing the act of strangulation.
33 The quarrel kept on for a long duration. It was not over in a flash. Neighbours were helpless and, therefore, message was flashed to Sanjay Verma who reached there at the spot with his mother but by that time incident was already over.
34 I strongly feel that neither Jyoti nor Sanjay Verma or his mother could see the actual act of strangulation or smothering. Jyoti had come to know that quarrel was going on. Though she deposed that she did not herself overhear the quarrel but she claimed that other lady neighbour had informed that quarrel was going on. Master Aman has also categorically stated that there was quarrel that day between his father and mother. Call records also indicate that Sanjay was apprised about the quarrel and pursuant to such calls only, he had reached at the spot. Sanjay Verma also informed the police by dialing 100 and since he did not know as to what exactly had happened FIR No. 222/08 PS Uttam Nagar 31 inside the four walls of house of accused, he informed the police at that juncture about the quarrel only. Information was flashed to police from the mobile of Jyoti as well and such information was to the effect that a husband had injured his wife and the blood was coming out. It becomes apparent from the testimony on record that prosecution had unwarrantedly tried to strengthen its case by making Jyoti, Sanjay and Ram Wati as eye witnesses whereas fact remains that they did not have any real occasion to see the incident of strangulation with their own eyes.
35 Thus out of alleged four eye witnesses, three go out. Court is now left with testimony of Aman besides, of course, other attendant circumstances. Simultaneously, it also needs to be borne in mind that evidence of a witness turning hostile cannot, as a matter of fact, be treated as effaced or washed off from the record altogether. Court has to consider whether as a result of such shift in deposition, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the court finds that in the process, the credit of the witness has not been completely shaken, it may, after reading and considering the evidence of FIR No. 222/08 PS Uttam Nagar 32 the witness, as a whole, with due caution and care, accept, in the light of other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. 36 The maxim 'falsus in uno falsus in omnibus' is not to be blindly invoked in appraising evidence adduced in criminal court where witnesses seldom tell the whole truth. Witnesses have tendency to often resort to exaggerations, embellishments and "paddingup". It is the function of the Court to disengage the truth from falsehood and to accept what it finds to be true, and reject the rest. It is only where truth and falsehood are inextricably mixed up, polluting beyond refinement the entire fabric of the narration given by a witness, that the Court might be justified in rejecting his evidence in toto.
DELAY IN RECORDING OF STATEMENT OF AMAN BY POLICE - REASON AND IMPACT 37 First attack of defence counsel is about the unexplaineddelayed recording of statement of master Aman. I also feel that investigating Agency had committed gaffe in not recording his statement immediately. After all, he was FIR No. 222/08 PS Uttam Nagar 33 inside the house with his parents and he was the best person to tell as to what had happened. However, to err is human and though the delay is not explained, it can not be assumed straightaway that his entire version is liable to be thrown out. Had he not been examined u/s 161 Cr.P.C., this court would have, even otherwise, called him u/s 311 Cr. P.C. as court witness. After all, he was inside the house and was the best person to apprise as to who killed her mother. Faulty investigation does not mean that entire case has to be consigned to dustbin. Court is not puppet in the hands of investigating agency. Merely due to the fact that statement of child witness was not recorded by the investigating agency promptly, entire case of prosecution is not liable to be thrown away. If such path is chosen by the Court then investigating agency would start playing a governing role and Court would be sitting merely as a spectator. Investigating agency can always be reprimanded by the Court for their negligence but the Court is not supposed to put its seal of affirmation on such act of negligence by acquitting the accused due to the aforesaid lapse. Defective investigation cannot become a basis of acquittal and it becomes the duty of the Court, in such a situation, to make the investigating agency wiser FIR No. 222/08 PS Uttam Nagar 34 instead of letting the accused off on the basis of defective investigation. Moreover, it is also the duty of the Court to see whether lapse was intentional or was motivated. In the case in hand, there were already three ocular witnesses as per the initial investigation and, therefore, the investigating agency might have thought that there was no requirement of falling upon the statement of child. It was obviously not a right approach from any angle whatsoever. Investigating agency should have made immediate endeavour to record the statement of Master Aman who was inside the room at the time of incident. There was no reason to avoid his statement but the lapse in this regard seems to be not motivated. It seems to be unintentional but the investigating agency is warned in this regard and I express my displeasure on record. 38 In the case of KRISHNA PAL V. STATE OF U.P. 1996 CRI. L. J. 1134 SC, there was delay of 56 days in recording statement of one eyewitness and it was observed as under by Apex Court: "...........In the instant case, no explanation has been given by the prosecution as to why eyewitnesses had not been examined shortly after the incident and from the materials on record it appears that there had FIR No. 222/08 PS Uttam Nagar 35 been inordinate delay in examining the eyewitnesses. But simply on that account, the convincing and reliable evidence adduced in this case should not be discarded."
39 In the case of STATE OF KARNATAKA V. K. YARAPPA REDDY 2000 CRI. L. J. 400 SC, it has been observed as under by Apex Court: "It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the Court in the case cannot be allowed to depend solely on the probity of investigation.
It is well nigh settled that even if the investigation is illegal or even suspicious the rest of evidence must be scrutinized independently of the impact of it. Otherwise criminal trial will plummet to the level of the Investigating Officer ruling the roost. The Court must have predominance and preeminence in criminal trials over the action taken by Investigating Officers. Criminal justice should not be made the casualty for the wrongs committed by the Investigating Officers in the case.
In other words, if the Court is convinced that the testimony of a witness to the occurrence is true the Court is free to act on it albeit Investigating Officer's suspicious role in the case."
40 Thus, belated recording of statement of Aman FIR No. 222/08 PS Uttam Nagar 36 was though injudicious but not deliberate. It has, therefore, no adverse impact.
AMAN WHETHER A TUTORED WITNESS?
41 Defence has contended that Aman had been tutored by his maternal side. This is not believable. If accused was innocent, why Aman would dare to falsely implicate his own father which would virtually make him orphan? Simply because he stayed with his maternal uncle and maternal grandparents does not mean that he is making statement under their influence. Defence has also not clarified as to why such Nani or Mama would tutor him. Here I would again like to make reference to the statement of of accused u/s 313 Cr.P.C. He supplied a reason as to why the complainant party was deposing against him. According to him, the complainant side was not happy with him as Sanjay Verma had borrowed a sum of Rs. 40,000/ from him and he did not want to return that amount. He also claimed that his parentsinlaw might not be happy with him as he never acted as per their wishes. I have seen various suggestions put to Sanjay Verma. It is noticed that it was not suggested to him that Sanjay had ever borrowed a sum of Rs. 40,000/ FIR No. 222/08 PS Uttam Nagar 37 from him. Since accused has claimed that Sanjay Verma wanted to grab that amount and did not want to return that amount, putting of such suggestion was obligatory. Thus, it becomes very much apparent that stand taken by accused is nothing but false and thereby he has also created a circumstance against him. Similarly, even to Ram Wati, no such suggestion was put which may indicate that she had deposed falsely because accused never acted as per her wishes. Thus, there is virtually nothing before me which may persuade the Court to imagine that Ram Wati or Sanjay Verma had deposed falsely as they had any grudge against the accused. They had no reason to falsely implicate him. Minor daytoday bickering and quarrel take place in every married life but there is nothing before me which may show that due to such minor bickering, complainant party would go to such an extreme end that they would falsely implicate him in a case of murder. They would rather like Aman to be with his father as he had lost his mother. But since, accused was held responsible for murder, he was taken behind the bars and in such a situation Aman had only one option to stay with his maternal side only. It is curious as no point of time, any member from the side of accused came before the FIR No. 222/08 PS Uttam Nagar 38 court with any sort of request in this regard and it seems that his own family members had also severed all ties with him. There is thus no reason to assume tutoring. 42 There is no provision in law that a person who is related to the deceased has to be termed as an unreliable witness. More often than not, a relation is supposed to be a truthful witness. That is because a relation would not normally implicate an innocent person and would shield real culprit. When allegation of interestedness is made, the accused is required to establish it and to show that the witnesses had partisan approach. Facts showing that the witness is biased or partial in relation to the parties or the cause has to be elicited in crossexamination or if denied independently proved. Moreover, in the instant matter, child has virtually nothing to choose. On one side, there is his mother and on the other, his real father. Both are equally important to him.
43 Defence has placed his reliance on the judgment of our own High Court cited as CHANDER PRAKASH @ CHANDER VS. STATE 1995 CR.L.J 3028 DELHI and has FIR No. 222/08 PS Uttam Nagar 39 argued on the strength of aforesaid judgment that because of tender age and innocence of child witness, he cannot be expected to give a true version and there is always danger in accepting the evidence of such a witness who is under influence. He has also argued that even in that case, it was observed that statement of child witness was not recorded promptly by the prosecution and possibility of his being tutored could not be ruled out. He has also relied upon one judgment DOMAN BEDIA VS. STATE OF BIHAR (DOD 01.05.2003) (complete citation not given) and has argued that statement of child witness is notoriously dangerous and child is prone to tutoring and, therefore, evidence of child witness has to be scrutinized with care and caution and some corroboration is always required by some independent witness of the occurrence.
44 Legal propositions are not disputed at all. Child witness is normally susceptible to tutoring and, therefore, it needs to be scrutinized with added care and caution.
ANALYSIS OF STAND OF AMAN 45 Aman had not gone to school that day.
Obviously, it was Sunday. Accused has claimed u/s 313 FIR No. 222/08 PS Uttam Nagar 40 Cr.P.C. that Aman was not with them that day as he was at his Nani's House. On this vital point accused and defence counsel differ. Defence Counsel says that prosecution sought to rely upon the tutored evidence of child witness in order to garner sympathy and in order to create prejudice against accused and, therefore, accused shivered with the fear and made contradictory statement at the time of his examination u/s 313 Cr.P.C. He has argued that his such stand should not be considered even otherwise as it is the primary duty of prosecution to prove its own case and cannot rely upon infirmities in defence. He does not seem to be right in this regard. His contention cannot be permitted to be in complete deviation of accused's own case as revealed in the open court. Statement made u/s 313 Cr.P.C. has its own relevancy and significance. It was made in court and in response to the question put by the court. Defence contention has to be in consonance with such stand. I can sense the reason behind the argument of Sh. Sharma. He knows and is fully conscious of the fact that no suggestion in this regard was put to Aman. His situation is very tricky and, therefore, he has evolved theory that accused made a wrong statement before court. I have nothing before me which may show that accused had FIR No. 222/08 PS Uttam Nagar 41 not given incorrect answers. This court only had recorded such statement. As a matter of fact, right from day of committal, case is before me only and at no point of time, it was felt by the court that accused did not understand the proceedings or that he made wrong statement under any fear. Court was also conscious of the fact that case was based on evidence of child witness as well. Since such child was not alien to accused, at the time of trial, Master Aman was permitted to make statement right in front of his father and no screen as such was used by the court to separate him from the looks of his father. He was rather permitted to make statement while standing on the pulpit meant for lawyers. I must also appreciate the affectionate manner in which he was crossexamined by the defence. Simple questions were put to him by the state as well as defence and he answered the same with ease after understanding the same. Child remained comfortable throughout and at that juncture, proceedings were conducted in camera.
46 PW8 Master Aman stated before the Court that his father had killed his mother with the help of Nara, hathora and penchkas. He also claimed that he did not know FIR No. 222/08 PS Uttam Nagar 42 as to why his father had done so. In crossexamination, he claimed that no one had told him that his father had killed his mother. He rather claimed that he had seen all by himself. He claimed that police had also met him that day and police had also seen that hammer and screwdriver and he had led the police to those instruments. Sh. Sharma has contended that Aman has introduced a story of hathora and screwdriver which had never been the case of prosecution. Sh. Sharma has contended that Master Aman had shown those instruments to the police party but no efforts was made to seize those instruments by the police. He has contended that Aman has rather claimed contrary to the case of State. I do not find any merit in such contention. Moreover, with respect to use of hammer and screwdriver, I would further delve on the issue when I consider the medical evidence. 47 Master Aman further stated that he had not gone to the school and incident had taken place during the day time. This again is in perfect consonance with the case of prosecution. He also claimed that he knew Jyoti Aunt who was their neighbour and there was one more aunt who was living adjacent to their room but he did not know her name. FIR No. 222/08 PS Uttam Nagar 43 They both had come to their house when the quarrel was going on and they also talked to his parents. I take a little pause here. Undoubtedly, Jyoti claimed that she never went inside that room of accused that day but simply because she has failed to say so, it cannot be said that Master Aman is lying. I rather feel that statement of Master Aman seems perfectly justified and Jyoti has held back said fact due to some unknown cause.
CALL DETAILS 48 I would like to make reference to the telephone calls at this juncture. All these call records have been collectively proved as Ex. D1. There are two mobile numbers which are as under:
(i) 9211134353 (owned by Sanjay Verma).
(ii) 9212986572 (owned by Jyoti). 49 Call record of Sanjay Verma clearly reflects that
on the date of incident i.e. 08.06.2008, he had made call at 10.01 AM. This happens to be the first call made on that day by Sanjay on the mobile of Jyoti. Jyoti was right when she had claimed that she herself had not called up Sanjay and FIR No. 222/08 PS Uttam Nagar 44 rather She had received the call from Sanjay. Thereafter at 11.23 AM, Jyoti had called up Sanjay and then again Sanjay called up Jyoti twice at 11.27 AM and 12.09 noon. Then there were two incoming calls to the mobile of Sanjay and these calls were made by Jyoti and these were made at 12.23 noon and 12.27 noon and thereafter Sanjay made call at number 100. Call details of Jyoti also confirm the aforesaid calls.
50 One thing is very perceptible. On that day, there were exchange of calls between Sanjay and Jyoti and it does not really matter much as to who called first. Since the first call was made by Sanjay at 10.00 AM, it clearly indicates that Sanjay had called up Jyoti in order to enquire whether everything was all right or not and after virtually 82 minutes, Jyoti called up Sanjay and thereafter two more calls were made by Sanjay to Jyoti. All these calls reflect that Sanjay was taking stock of the situation and testimony on record also clearly indicates that calls were pertaining to the wellbeing of Sangeeta and there was no other reason for Sanjay to have called up Jyoti or vice versa. It has come on record that Sanjay had given his number to Jyoti so that he could enquire FIR No. 222/08 PS Uttam Nagar 45 about wellbeing of his sister as Jyoti was her close neighbour and such fact has been categorically deposed by PW2 Sanjay as well as by Jyoti and such fact is not shaken in the cross examination either. It is very much possible that due to the quarrel between accused and his wife Sangeeta, Jyoti and another lady neighbour might have intervened and might have gone there to pacify them but one can interfere in the matrimonial life of another to a limited extent and, therefore, Jyoti, finding herself little hapless, informed Sanjay to come there immediately. PW5 Ms. Jyoti has categorically claimed that she had received call from Sanjay as Sanjay wanted to know the wellbeing about his sister and she has claimed that she had not seen Sangeeta that morning and suspected some foul play and asked Sanjay to come immediately with his mother. As a neighbour Jyoti did her duty. If Aman is to be believed, she also went inside the room of Sangeeta in order to pacify them. Since her efforts did not yield positive result, she did the next best thing as she informed Sanjay about the quarrel. Statement of Master Aman, therefore, cannot be doubted in this regard when he claims that Jyoti and another aunt had come to his house when the quarrel was going on. Defence counsel has contended that in the crossexamination, FIR No. 222/08 PS Uttam Nagar 46 Master Aman has claimed that Jyoti aunt and another aunt had come when the quarrel was going on and they talked to his parents and then Papa had gone downstairs. He has claimed that if that sequence is read then it becomes apparent that accused has not committed murder. I do not agree with such argument. One line cannot be picked up in isolation and cannot be construed in the manner the defence wants me to construe. It is the entire deposition or statement made before the Court which has to be considered and evaluated as a whole. Important part of testimony of Master Aman shows that he himself had seen accused killing his mother with the help of nara, hathora and penchkas. In such awful situation, anyone can get perplexed and can jumble up the facts. I need not remind myself that here, we are discussing about the statement of a boy of six years of age. He indeed underwent lot of trauma and he had seen which even a grownup person is unable to bear or endure. In such a traumatized mental condition, it is even otherwise not expected from a normal person to supply all the facts in a photogenic manner with complete precision. I have no reason to discard the testimony of Master Aman. He, in response to the court question, categorically claimed that he FIR No. 222/08 PS Uttam Nagar 47 would be telling truth and he also claimed that no one had tutored him to speak anything in particular. In cross examination also, it was suggested to him that he had been tutored by his Nana, Nani and Mama and he labeled such suggestion as incorrect. He rather volunteered that no one had tutored him.
MEDICAL EVIDENCE 51 Let me now touch medical evidence.
Postmortem report has been proved as Ex. PW6/A and the concerned postmortem surgeon Dr. B.N. Mishra has graced the witness box. He noted several external and internal injuries. These are as under:
External Injuries 1 Both upper and lower lips were found bruised, with lower lip has as laceration of size 5x3 cms with irregular margin and dark reddish colour with multiple indentation of teeth marks present at inner aspect of lower lip.
2 Twothree crescentric shape nail marks present at chin.
3 Contusion of size 5x4 cms present at right side of forehead with dark reddish colour blood clot on section.FIR No. 222/08 PS Uttam Nagar 48
4 Abrasion of size 3x2 cms present over right cheek bone.
5 Abradedbruise (10x8 cms) present at left gluteal region (buttock).
6 Lacerated wound of size 5x1 ½ cms x deep to bone present at occipital region of head.
7 Ligature mark (uniform) present all around the neck at the level of above the thyroid cartilage. It was placed horizontally with bruise margin, reddish brown in colour with measured 33cms in length and 1 cm in width.
No parch meantisation of ligature mark seen. (Ruled out hanging).
On section of ligature mark, the underneath tissue appeared bruised and having multiple hemorrhagic spots revealed.
Internal Injuries 1 On section of scalp hematoma was present at occipital region of head with pith collection of blood clot which was darkreddish in colour.
2 The blood vessels of brain and meniges were found engorged with brain edema was present.
3 The right cornua of hyoid bone was found fractured with collection of blood clots nearby FIR No. 222/08 PS Uttam Nagar 49 fractured site.
4 Both sternomostoid muscles (upper 1/3 part) were found bruised with multiple hemorrhagic spots detected within soft tissue of neck.
5 Bloody froth was found within tracheal lumen.
6 Both lungs were found congested and suffused.
7 Peritoneal cavity filled by fluid and clotted blood about 500 ml.
8 The liver was found lacerated at outer surface of right lobe measured 2x1 cms.
52 He also deposed that cause of death was due to asphyxia caused by ligature strangulation along with manual smothering prior to strangulation. He also deposed that he had noticed marks of assault over many parts of the body and death was homicidal. He also deposed that all the injuries on the body were ante mortem in nature and of same duration and injury no. 7 was sufficient to cause death. Ligature material was also produced before him on 28.08.2008 during investigation and he examined the same and opined that such ligature material i.e. nara was consistent with the injuries present on the neck of the deceased. He also identified the FIR No. 222/08 PS Uttam Nagar 50 nara as Ex. P1 when shown to him in the witness box. He was crossexamined by the defence and he deposed that ligature strangulation and smothering were two different things. He claimed as under: Q What is ligature strangulation?
Ans. Constriction by the means of rope or other light material with sustain pressure for more than a minute or two which relates death of victim due to asphyxia.
In such a situation, death is due to insufficient supply of oxygen to the brain.
Q What is smothering?
Ans. Manual closing of air passage. Closing of mouth and nostal( sic nostril) by means of manually or some other means.
53 He also deposed that some of the features with respect to ligature strangulation and smothering were common. He also claimed that bloody froth was present in the trachea and he also claimed that it was correct that in the present case cause of death could be smothering also. He, however, volunteered that it was one of the causes. It was also claimed that smothering and ligature strangulation was almost simultaneous. Defence has also asked him if FIR No. 222/08 PS Uttam Nagar 51 smothering is done by one and strangulation by another at the same time whether his opinion would have been the same and he answered in affirmative. He also deposed that he could not say whether the act in question had been caused by one person or more than one person. He also, however, claimed that possibility of involvement of more than one person could not be ruled out and simultaneously also volunteered that even one person could cause such injuries. 54 I have carefully gone through the postmortem report and also the deposition of Dr. Mishra and I have no hesitation in holding that death in question was due to strangulation coupled with prior smothering. Since time gap between the strangulation and smothering was virtually zero, therefore, Dr. Mishra deposed that smothering was also one of the causes of the death. Dr. Mishra has also deposed that even one person could have caused all such injuries and, therefore, defence is not justified in claiming that injuries in question could have been caused by two or more persons and was not handiwork of one person.
FIR No. 222/08 PS Uttam Nagar 52 55 I would now revert to the stand taken by Master Aman. He claimed that screwdriver and hammer were also used besides nara. He seems right in this regard. There was lacerated wound on the body of deceased and there were injuries all over her body and such lacerated wound is possible by a screwdriver as well as by hammer. Thus, medical evidence also seems to be consistent with the ocular evidence.
56 There is nothing to show that child had been tutored. Master Aman has rather deposed what had actually happened in his house and what he saw himself. He had seen accused beating up his mother and using screwdriver and hammer besides nara. Prosecution never came up with the case that any hammer or screwdriver was also used by the accused. This particular fact could have been revealed by that person only who had himself seen the incident. Had he been tutored by his maternal uncle or maternal grandmother, he would not have dared to name these two instruments which otherwise were never part of the prosecution story? It, therefore, becomes evident that there is no tutoring and the testimony of Master Aman is very convincing and believable. FIR No. 222/08 PS Uttam Nagar 53
OTHER RELATED INVESTIGATION AND EVIDENCE 57 Sangeeta was brought to hospital by PCR van. PW13 ASI Ram Gopal is the material witness in this regard. On that day at about 12.38 PM he received a wireless message regarding a scuffle at H. No. D20, Village Nawada, near Govt. School and he immediately reached there. He saw crowd there and he entered in the room situated at first floor and there one lady whose name later on was ascertained as Sangeeta was lying on the floor and accused was also sitting in that room. He also deposed that mother and brother of that lady were also present and that lady was having no cloth on her body and rather her body was covered with a cloth sheet. He with the help of some public persons shifted Sangeeta in PCR van and took her to DDU hospital along with accused, brother and mother of said lady. He also deposed that on way to hospital, ASI Jagpal met him and he handed over the accused to him. He also deposed that at DDU hospital, doctor declared her brought dead.
58 PW3 Dr. Rishi has also entered into witness box and has deposed that at about 1.35 PM, ASI Ram Gopal of PCR had brought one patient in unconscious state and she FIR No. 222/08 PS Uttam Nagar 54 was examined by Dr. Indra Bahadur under his supervision and the pulse of the patient was not palpable and BP was not recordable and since no trace of life was found in the patient, she was declared brought dead and he has also proved MLC Ex. PW3/A. ASI Jagpal Singh was also part of the investigation team but his testimony could not recorded as it was reported that he was suffering from cancer and he had been referred to Bombay for treatment and, therefore, he could not enter into witness box. However, PW14 Insp. Dev Raj Singh and PW15 SI Rajbir Singh have entered into witness box. I have seen their testimony. PW14 Insp. Dev Raj Singh has proved rukka Ex. PW14/A and he also deposed that Crime Team was called there and spot was got photographed. PW11 Ct. Rajesh Kumar was photographer with such Crime Team and he has also proved photographs as Ex. PW11/1 to Ex. PW11/6 and negatives as Ex. PW11/7 (collectively). His testimony is unrebutted. PW14 Insp. Dev Raj Singh has proved site plan Ex. PW14/B and the scaled site plan which has been prepared by SI Mahesh Kumar has also been duly proved as Ex. PW9/A. FIR has been proved as Ex. PW4/A by duty officer. In the present case, it has been observed that FIR is found to have been actually recorded FIR No. 222/08 PS Uttam Nagar 55 without delay. FIR was recorded at 4.10 pm and copy of same was received by Ld. MM at 9 pm. To me, this is no delay at all. Little delay in dispatch of FIR to the Magistrate cannot tantamount to hold that the investigation was tainted and manipulated. The matter relating to delay in dispatch of the FIR came up for consideration in SHIV RAM V. STATE OF U.P., (1998) 1 SCC 149 : (1998 CRI LJ 76) and it was held that the delay in sending copy of the FIR to Magistrate would not demolish the positive and credible evidence on record. This only shows carelessness on the part of the Investigating agency. Reference be also made to JINNAT MIA V. STATE OF ASSAM, (1998) 9 SCC 319 : (1998 CRI LJ 851). Be that as it may, I am of the opinion that there is no delay in dispatch of FIR.
59 Nara Ex. P1 was seized vide memo Ex. PW2/B1 and it was sealed with the seal of DR and broken bangles of blue colour and bunch of hair were also seized at the spot and memo in this regard has been proved as Ex. PW2/B. By virtue of said seizure memo a white cloth was also seized by the police. PW14 Insp. Dev Raj Singh has further deposed that from the spot when he came to PS, PCR officials had FIR No. 222/08 PS Uttam Nagar 56 already apprehended the accused and he has proved Arrest Memo of accused as Ex. PW2/E and his Personal Search Memo as Ex. PW2/F and Pointing Out Memo prepared at the instance of accused has been proved as Ex. PW14/C. All the inquest paper were also duly proved by him and he had also prepared the identification statements of Sanjay Verma and PW10 Jagdish Verma (father of deceased). He also deposed that after postmortem, concerned doctor had handed over him viscera and clothes of the deceased along with blood gauze and sample seal and those were seized vide memo Ex. PW12/A. He also duly identified the nara as Ex. P1, cloth piece as Ex. P2, broken bangles as Ex. P3 collectively and bunch of hair as Ex. P4 collectively.
60 Defence counsel has again contended that investigation was defective as it is not clear whether clothes of the deceased were ever seized by the police or not. He does not seem to be right as clothes of deceased were seized at hospital along with viscera and memo Ex. PW12/A has been duly proved. Testimony of PW12 Ct. Anup Singh is unrebutted and moreover when such pullanda was produced in Court during recording of testimony of PW14 Insp. Dev FIR No. 222/08 PS Uttam Nagar 57 Raj, defence itself claimed that it did not insist for exhibition of same. In such a situation, defence now cannot agitate about nonproduction or disappearance of clothes of deceased.
61 It was also asked from PW14 Insp. Dev Raj Singh whether he had given any questionnaire to the concerned doctor whether deceased was subjected to any sexual assault or for preservation of vaginal swab and PW14 Insp. Dev Raj Singh claimed that no such questionnaire was given claiming that there was no circumstance before them to suggest that deceased was sexually assaulted. I have also seen the postmortem in this regard and nothing abnormal was found in this regard by the concerned postmortem surgeon either. It seems figment of imagination of defence that deceased was sexually assaulted by some unknown intruder (s). Investigating agency did not find any trace of semen at the spot. No suggestion in this regard was put to the IO that there were traces of semen or semen like fluid at the spot and in the absence of any such suggestion, defence plea that any such act had been done by some unknown intruder (s) is liable to be discarded. SI Rajbir Singh has also fully FIR No. 222/08 PS Uttam Nagar 58 supported the case of prosecution and has proved various documents prepared during the investigation. Undoubtedly, call record must have been collected during the investigation but IOs are found to be ignorant in this regard. However, such call records were not disputed by the defence. Learned Prosecutor had prayed on 10.08.2009 that concerned Nodal Officer of service provider had not been cited as witness and, therefore, she claimed that she would be moving an application so that call records are duly proved and at that time learned defence counsel very fairly claimed that he did not dispute such call records and, therefore, call records were exhibited as Ex. D1 collectively.
62 It has been argued by Sh. Sachin Dev Sharma that building, where accused was allegedly residing, was a big complex where several other families were also residing. He has also argued two things in this regard. Firstly, why accused would dare to kill his wife when so many families were residing in the neighbourhood. Secondly, why other neighbours were not examined by the prosecution. He has also contended that conduct of the accused also indicates that he was innocent as he remained at the spot after he came FIR No. 222/08 PS Uttam Nagar 59 back from Bhairon Mandir. It has also been argued by him that if accused had been the killer, he would not have stayed at the spot and would not have invited wrath of public. As already noticed above, defence has taken the plea of alibi which does not stand substantiated and it becomes apparent from the testimony on record that he remained at the spot and never left the spot. Admittedly, many families were residing in the said complex but the incident in question had not taken place in the open. Incident had rather taken place within the four walls of house of accused. However, shouts of the quarrel attracted attention of his neighbours and, therefore, only Jyoti was able to tell Sanjay about the quarrel. As already noticed above, in such a situation, neighbours cannot afford to interfere to a great extent and, therefore, Jyoti had informed Sanjay about the incident and asked him to rush. Moreover, it is the quality of the evidence which is of importance not the quantity. Independent witnesses rarely come forward to participate in investigation. They have their own reasons and notions for not associating themselves with such type of investigation related to murder. Case of the prosecution cannot be doubted merely due to the fact that other neighbours were not examined during FIR No. 222/08 PS Uttam Nagar 60 investigation.
63 Defence has vehemently contended that prosecution is duty bound to prove the case as set up in the chargesheet and cannot deviate and make out a new case and accused cannot be convicted on the basis of such new case. I have also seen the judgment of Bhagirath (supra). I do not find that prosecution has deviated from its stand in the case in hand. Case of the prosecution is all along that it was accused who had committed murder of his wife and prosecution case still remains the same. Simply because three persons, who were cited as eye witnesses, have not given supporting version about the actual incident, does not mean that a new case has been set up during the trial. 64 It has also been argued by Sh. Sharma that there is no explanation on record as to why inquest proceedings were performed belatedly. I, however, find that there is no inordinate delay in inquest. Incident is of 08.06.2008 and it happened at noon time. Sangeeta was immediately rushed to hospital where she was declared brought dead and it really does not matter even if inquest proceedings were carried out FIR No. 222/08 PS Uttam Nagar 61 next day.
65 Learned defence counsel has further contended that substantial padding was done by the police in the present case and, therefore, investigation is unfair and faulty and case is liable to be disbelieved in its entirety. In this regard, he has placed his reliance upon judgment cited as STATE OF HARYANA VS. JAGBIR SINGH 1978 CLR (SC) 75. I have gone through aforesaid judgment and undoubtedly in that case there was padding in the case of prosecution but fact remains that said case pertained to circumstantial evidence only and situation in the present is not similar as present case is of ocular evidence VALUE OF STATEMENT OF CHILD WITNESS 66 It is fairly settled that even if there are contradictions, omissions and discrepancies in the evidence, the entire evidence can not be discarded. With care and caution, court is supposed to sift the same to separate truth from untruth, exaggeration and improvements. Conviction can be passed on residual evidence.
FIR No. 222/08 PS Uttam Nagar 62 67 It cannot be said that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and thus a child witness is an easy prey to tutoring. Under Section 118, a child is competent to testify, if it can understand the questions put to it, and give rational answers thereto. The sole test is whether witness has sufficient intelligence to depose or whether he can appreciate the duty of speaking truth 68 In a very recent case of STATE OF KARNATAKA V. SHANTAPPA MADIVALAPPA GALAPUJI 2009 CRI. L. J. 2442 SC, it has been observed as under: "6. The Indian Evidence Act, 1872 (in short "the Evidence Act") does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers FIR No. 222/08 PS Uttam Nagar 63 to these questions, because of tender years, extreme old age, disease whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer, J. in Wheeler v.
United States (159 US 523). The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. [See Suryanarayana v. State of Karnataka (2001 (9) SCC 129)]2001 AIR SCW 81
7. In Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341] it was held as follows: (SCC p. 343, para 5):
"A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and FIR No. 222/08 PS Uttam Nagar 64 there is no likelihood of being tutored."
8. The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of makebelieve.
Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."
69 Conviction can be based on sole testimony of child witness. In the case of SURYANARAYANA V. STATE OF KARNATAKA 2001 CRI. L. J. 705 SC, such child was only four years old. No inherent defect was pointed out in his testimony and conviction was maintained on sole testimony of such FIR No. 222/08 PS Uttam Nagar 65 child witness. It was observed as under: "Admittedly, Bhavya (PW2), who at the time of occurrence was about four years of age, is the only solitary eyewitness who was rightly not given the oath. The time and place of the occurrence and the attending circumstances of the case suggest no possibility of there being any other person as an eyewitness. The evidence of the child witness cannot be rejected per se, but the Court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The witness of PW2 cannot be discarded only on the ground of her being of Teen age. The fact of being PW2 a child witness would require the Court to scrutinise her evidence with care and caution. If she is shown to have stood the test of crossexamination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix up what the witness saw with what he or she is FIR No. 222/08 PS Uttam Nagar 66 likely to imagine to have seen. While appreciating the evidence of the child witness, the Courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the Courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not."
CONCLUSION 70 On the basis of foregoing discussion, it stands proved that Sangeeta, wife of accused Puran Verma, was residing at H. No. 20D (First Floor), Balwan Ka Plot, Nawada, Uttam Nagar, New Delhi along with accused and their son Master Aman. They were living as tenant under the landlordship of PW7 Balwan Singh. It also stands proved that there used to be frequent quarrel between accused and Sangeeta. These incidents of quarrel have been corroborated by PW1 Ram Wati, PW2 Sanjay Verma, PW5 Jyoti as well as PW8 Master Aman. On the date of incident i.e. 08.06.2008 Master Aman was also in the same room with his parents. It also stands proved that there was quarrel between accused and his wife Sangeeta that day as well and there was FIR No. 222/08 PS Uttam Nagar 67 telephonic conversation between Jyoti and Sanjay that day starting 10.00 AM and pursuant to that, Sanjay and his mother had reached at the spot. It also stands proved that at the time of incident, accused was inside his said room along with his wife and Master Aman and Accused strangulated his wife with nara Ex P1 and also gave her lacerated wound. It also stands proved that when Sanjay and his mother reached there, the door was opened by accused from inside and at that moment Sangeeta was lying unconscious on the floor. His being inside a closed room (closed from inside) with his wife lying virtually dead speaks volume about his guilty mind. It is also apparent that medical evidence supports ocular version given by Master Aman. It also stands proved that Master Aman had seen accused killing his mother with the help of nara, hathora and penchkas and all the injuries were ante mortem in nature and were homicidal and injury no. 7 was found to be sufficient to cause death. Use of hathora (hammer) and penchkas (screwdriver) seems very palpable as lacerated wound was noticed. It also stands established that accused has taken a false stand before the Court that Master Aman was not there in his house at that time and that he was left at his maternal grandmother's FIR No. 222/08 PS Uttam Nagar 68 house a day before the incident and by taking a false stand, he has created one more circumstance against him. 71 All the aforesaid duly proved facts clearly indicate that it was accused and accused only who had murdered his wife Sangeeta on 08.06.2008 at 12.00 noon at their room situated at First Floor of Plot No. 20D, (Plot of Balwan), Nawada, Delhi. He is accordingly held guilty and convicted under Section 302 IPC.
72 Though the case has ended in conviction yet I cannot resist commenting about the hard work put in by Sh. Sachin Dev Sharma. He was Amicus Curiae but the sincerity and commitment shown by him is, these days, rarely displayed even by highly paid professionals. Announced in the open Court On this 30th day of October, 2009.
(MANOJ JAIN) ASJ/Special Judge (NDPS) Outer District, Rohini Courts: Delhi FIR No. 222/08 PS Uttam Nagar 69 SC No. 60/08 FIR No. 222/08 PS Uttam Nagar U/s 302 IPC State Vs. Pooran Verma 31.10.2009 Present: Sh. Gurbhej Singh Guraya, learned (substituted) Addl. P.P. for the State.
Convict in JC with Sh. Sachin Dev Sharma, learned Amicus Curiae.
Heard arguments on sentence.
Convict has already been found guilty for offence u/s 302 IPC. There are only two alternates either death sentence or life imprisonment as far as substantive part is concerned.
Sh. Sachin Dev Sharma has reiterated that convict is innocent. That chapter is, however, already over. Sh. Sharma has next contended that convict has no previous bad antecedents and the case in hand does not fall within the category of "Rarest of Rare Cases". He has argued that even as per the settled legal position, life is rule and death is exception. He also contends that convict has three brothers and three sisters and they all are married and he comes from a respectable family. Parents of convict are no more and it has been argued that Master Aman would become orphan in case convict is sentenced to death.
FIR No. 222/08 PS Uttam Nagar 70
Sh. Guraya, learned Addl. P.P. has prayed for appropriate sentence.
As already noticed above, there are only two options available to the Court. However, there is enormous gap between the two available options. There cannot be any comparison between life and death as these are the two extreme ends. There is no straitjacket formula which may prove to be handy to decide sentence in a case of murder. Each case has its own peculiarity and unique backdrop and the sentence has to be passed keeping in mind the entire such facts and backdrop of the case. Undoubtedly, when it is found to be case of murder, heartlessness automatically comes into play but that itself cannot bring the case within the ambit of "Rarest of Rare Cases" for the purpose of sending a person to gallows. A murder by its very nature shakes judicial conscience but that per se does not justify extreme penalty. Features of the present case do not reveal extreme brutality, grotesque, total depravity or meanness. Murder had been committed within the four walls of a household and there is not found to be anything which may suggest that murder was preplanned or calculated. If I draw balance sheet of aggravating and extenuating circumstances and also FIR No. 222/08 PS Uttam Nagar 71 keep in mind the previous clean antecedents of the offender, his age and his prospects of future rehabilitation, I would find that the case in hand deserves life sentence only.
Convict is accordingly sentenced to life imprisonment and simultaneously fined Rs. 10,000/ in default thereof he would undergo RI for a further period of six months. He be sent to jail under appropriate warrants. Needless to say, he would be entitled to benefit of sec 428 Cr.P.C.
A copy of judgment and order be supplied to convict free of cost.
File be consigned to record room.
Announced in the open Court on this 31st day of October, 2009.
(MANOJ JAIN) ASJ/Special Judge (NDPS) Outer Distt: Rohini Courts: Delhi FIR No. 222/08 PS Uttam Nagar 72