Delhi District Court
State vs Kailash on 20 January, 2011
SC No.20/09
FIR No. 521/08
PS Najafgarh
State Vs Kailash
IN THE COURT OF MS. MAMTA TAYAL
ADDL. SESSIONS JUDGE : DWARKA COURTS
NEW DELHI
SC No. 20/09
FIR No. 521/08
Police Station Najafgarh
U/Section 302 IPC
Received on assignment 19.01.2009
Reserved for orders on 07.12.2010
Judgment announced on 04.01.2011
State V/s Kailash
S/o Shri Pitam
R/o Village Sankhnorkitapania, PS
Kolaras, District Shiv Puri, MP.
J U D G M E N T
1. The accused Kailash was forwarded to face trial on the premise that on 9th September 2008, he had committed murder of his wife Saroj in his tenanted room at House No. 133, Indira Park, Najafgarh. It is the case of prosecution that the accused was living there with his wife and daughter for last about a week. Both he and SC No.: 20/09 1 of 20 04.01.2011 SC No.20/09 FIR No. 521/08 PS Najafgarh State Vs Kailash his wife were working as labourers. On the morning of 09th September 2008, accused was seen leaving his room alone with his daughter who was about 2 years old at that time. At about 1.00 PM, the landlord noticed blood flowing out of the room of accused. He peeped into the room through the curtain hanging at the door and saw dead body of wife of the accused lying on the floor with a large stone on her head. Somebody informed the police vide DD No. 35A on which FIR was recorded. The accused was found absconding. The parents of the lady who were residing nearby were also found missing from their home. The spot was got photographed and inspected by the crime team. The dead body was sent for postmortem. Various exhibits were sealed and seized from the spot. Accused was later on arrested and on conclusion of investigation charge sheet was filed.
2. Consequent to supply of copies to the accused as mandated under law, the case was committed to sessions where after due deliberation charge u/s 302 IPC was framed against the accused and was served upon him. He pleaded not guilty and SC No.: 20/09 2 of 20 04.01.2011 SC No.20/09 FIR No. 521/08 PS Najafgarh State Vs Kailash claimed trial.
3. On being called upon to establish charges, prosecution tendered 19 witnesses in evidence. PE was closed and statement of accused was recorded u/s 313 Cr.PC wherein he controverted the entire evidence as false and fabricated. He claimed that the deceased Saroj was having illicit relation with her step father Mahesh @ Munna and he had seen them in compromising position regularly for three days. He further stated that he alongwith his wife and daughter had come to Delhi on request of her mother in law Munni Devi but he had returned alone to his native village just after 56 days, on being threatened by Munna and his wife Munni Devi. He feigned ignorance as to manner of death of his wife and also the means by which he came to know about her murder. He did not lead any evidence in his defence hence, final arguments were advanced.
4. I have heard Ld. Addl. PP as well as Ld. Amicus curiae, perused the entire records and carefully considered the matter in hand.
SC No.: 20/09 3 of 20 04.01.2011 SC No.20/09 FIR No. 521/08 PS Najafgarh State Vs Kailash
5. The first witness examined by prosecution is Ram Chander, the landlord of the accused and the deceased. PW2 is Rajesh, landlord of parents of the deceased. PW3 is Ct. Prem Prakash in whose presence the accused was arrested. PW4 is Dr. Parvinder Singh the forensic expert who had conducted postmortem on the dead body of Saroj and given his report Ex.PW4/A. PW5 is SI Harinder Singh, the crime team incharge. He had inspected the spot and given his report Ex. PW5/A. PW 6 is Ct. Vijender Singh who had collected the sealed exhibits of the case from the MHC(M) and deposited them at FSL Rohini on 19.11.2008 vide acknowledgment Ex.PW13/D. PW 7 is ASI Suresh Kumar. He was present with IO at the time when accused was arrested. PW8 is Ct. Arun Kumar, the crime team photographer, who had taken the photographs Ex.PW8/A1 to Ex. PW8/A10 of the spot. PW9 is Ram Swaroop, paternal uncle of the deceased. He had identified the dead body of Saroj in the hospital. PW 10 is Smt. Kalawati, wife of Ram Swaroop, another witness of identification of dead body. PW 11 is Smt. Munni Devi, mother of the deceased. PW 12 is SC No.: 20/09 4 of 20 04.01.2011 SC No.20/09 FIR No. 521/08 PS Najafgarh State Vs Kailash ASI Suraj Bhan, the then duty officer who had recorded the FIR Ex. PW12/A. PW 13 is HC Satyavan, the then MHC(M) with whom the exhibits of the case were deposited by IO and were sent to FSL Rohini for analysis. PW 14 is W Ct. Saroj, who was posted with PCR on the relevant date and had recorded the initial information about the dead body seen in house No. 133, E Block, Najafgarh at 2.17 PM. PW 15 is HC Veena, the duty officer who had recorded DD No. 35 A on the basis of information conveyed by PCR about the dead body. PW 16 is Ct. Hardeep Singh, the draftsman who had prepared the scaled site plan Ex.PW16/A of the spot. PW 17 is Ct. Naresh, who had accompanied ASI Hari Singh to the spot on receipt of DD No. 35A. PW 18 is ASI Hari Singh, the first police officer to have arrived at the scene of crime after DD No. 35A was marked to him. He had got the FIR registered and conducted partial investigation at the spot. PW 19 is Inspector Raghu Raj Khatana, the IO of the case.
6. There is admittedly no eye witness in the present case and the prosecution has erected the edifice of its case against the SC No.: 20/09 5 of 20 04.01.2011 SC No.20/09 FIR No. 521/08 PS Najafgarh State Vs Kailash accused purely on circumstantial evidence. To bring home the guilt of accused, following circumstances have been relied upon: (1) Deceased, Smt. Saroj was wife of the accused and before her death, she was living with the accused along with their daughter as a tenant in one room in house no. 133A, Indira Park, Najafgarh, owned by Ram Chander.
(2) Every morning accused and his wife, both laborers used to leave home together for work and used to return in the evening. (3) The accused was seen going out of the house in the morning of the same day and on inquiry he had stated that he was going to house of his in laws.
(4) On 09.09.2008 at about 1.00 PM, Ram Chander, the landlord of accused had seen the dead body of Saroj lying on the floor of their tenanted room in House No. 133A, Indira Park, Najafgarh and one large slab of stone was there on her head. (5) Accused on the same day left his daughter Ruchi with his mother in law Munni Devi stating that he had killed Saroj.
(6) The accused thereafter absconded. SC No.: 20/09 6 of 20 04.01.2011 SC No.20/09 FIR No. 521/08 PS Najafgarh State Vs Kailash (7) On postmortem, the cause of death was given as
asphyxia following antemortem smothering alongwith cranio cerebral damage consequent to multiple injuries noted on the dead body and the injuries were opined as sufficient to cause death in ordinary course of nature.
(8) The accused suspected the deceased of having illicit relation with her step father Mahesh @ Munna. (9) The accused failed to offer any explanation about the events leading to unnatural death of Saroj though he alone was present with her in the room alongwith their 2 year old daughter, prior to her death.
7. The standard of proof required to convict a person on circumstantial evidence is now well settled by Hon'ble Apex Court in a series of decisions. According to said criteria, the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the SC No.: 20/09 7 of 20 04.01.2011 SC No.20/09 FIR No. 521/08 PS Najafgarh State Vs Kailash accused. The circumstances from which the conclusion of the guilt is to be drawn are not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis and that all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime.
8. PW1 Ram Chander has affirmed on oath that accused Kailash with his wife Saroj (since deceased) and daughter, was living as a tenant on the ground floor of his house since 01.09.2008. Both accused and the deceased used to work as labourers, leaving their house every morning to return in the evening. On 09.09.2008, however, Ram Chander saw only accused Kailash going out in the morning. On being asked accused told him that he was going to his in laws house. On the same day at about 1.00 PM, Ram Chander saw blood coming out of the room of the accused on which he looked behind the curtain hanging on the door and saw the dead SC No.: 20/09 8 of 20 04.01.2011 SC No.20/09 FIR No. 521/08 PS Najafgarh State Vs Kailash body of Saroj lying on the floor with a large stone on her head. In cross examination he replied that by the time he saw the dead body, though the blood was still oozing out of the head injury of the deceased but the blood already lying on the floor of the room had become dry. He had not noticed any blood stains on the cloths of accused in the morning and further that he had not heard the accused and deceased fighting on the previous night. PW 4 Dr. Parvinder Singh, the autopsy surgeon affirmed that he had noted twelve external injuries on the body of the deceased out of which ten were on the face and head. The cause of death was opined by him as asphyxia following antemotem smothering alongwith cranio cerebral damage (head injury). All the injuries found on the dead body were stated to be recent having been caused by hard blunt force impact except injury no.2 which was inflicted by a sharp edged weapon. It was further concluded by the expert that the said injuries were sufficient to cause death in ordinary course of nature. Time since death was given as tentwelve hours prior to preservation of the body in mortuary. The cross examination of SC No.: 20/09 9 of 20 04.01.2011 SC No.20/09 FIR No. 521/08 PS Najafgarh State Vs Kailash both the witnesses i.e PW 1 Ram Chander and PW4 Dr. Parvinder Singh is more or less formal in nature. In cross examination of PW1 Ram Chander, the fact that witness had seen the accused leaving the house alone i.e. without his wife on the morning of 09.09.2008 and that on enquiries, he had told his landlord that he was going to house of his inlaws was not disputed. It was also not controverted that accused was residing with his family in a room on ground floor in house of Ram Chander since 01.09.2008. Even it was not denied that on that day at about 1.00 PM, Ram Chander had seen blood coming from the tenanted room of the accused consequent to which he had found the dead body on the floor of the room of accused with a large stone on head of the body. Similarly, in cross examination of Dr. Parvinder Singh, it was not rebutted that death was homicidal caused by antemortem smothering alongwith multiple head injuries and further that all the injuries except injury no.2 had been caused by hard blunt force impact. The time since death as stated by PW 4 was also not challenged. The facts which emerge undisputed from the above discussion are :
SC No.: 20/09 10 of 20 04.01.2011 SC No.20/09 FIR No. 521/08 PS Najafgarh State Vs Kailash "The accused his wife and their 2 years old daughter were residing in a room in house
of Ram Chander since 01.09.2008 as tenant.
On the night of 09.09.2008, his wife was with him in the said tenanted room. Every morning accused and his wife used to leave home to work as labourers but on morning of 09.09.2008, accused left the house without his wife telling his landlord that he was going to the house of his in laws. The dead body of his wife was seen lying in their room by the landlord at about 1.00 PM. The deceased Smt. Saroj died an unnatural death as a result of antemortem smothering alongwith multiple head injuries having been caused by a blunt force impact."
9. As per PW 14 WCt. Saroj, the first information about SC No.: 20/09 11 of 20 04.01.2011 SC No.20/09 FIR No. 521/08 PS Najafgarh State Vs Kailash the sighting of dead body was received at police control room at 2.17 PM which was recorded as Ex.PW14/A and was forwarded to PS Najafgarh. PW 15 HC Veena testified that the message conveyed by the PCR to PS Najafgarh was recorded as DD No. 35A Ex. PW15/A there and was assigned to ASI Hari Singh. PW 14 and PW 15 were not subjected to any cross examination and their testimony remained unrebutted. As per Ex.PW14/A, Local Police reached at the spot at 3.25 PM. PW 5 SI Harinder Singh, the crime team incharge proved his report given after inspection of the scene of crime as Ex.PW5/A. The veracity of the said report was again not challenged in cross examination. According to report Ex.PW5/A, the crime scene was inspected between 4 PM to 5 PM and dead body was thereafter ordered to be taken for postmortem. PW 17 Ct. Naresh accompanied the dead body to RTRM Hospital mortuary. The dead body hence reached the mortuary latest by 7.00 PM on 09.09.2008. The time of death in such scenario according to unrepelled opinion of autopsy surgeon comes out to be early SC No.: 20/09 12 of 20 04.01.2011 SC No.20/09 FIR No. 521/08 PS Najafgarh State Vs Kailash morning of 09.09.2008. At that time besides the deceased, only accused and his 2 years old daughter Ruchi were present in the room. In these circumstances, it was only accused who could have explained as to how the deceased died. He however maintained a complete silence in this regard and failed to offer any explanation whatsoever. In his statement u/s 313 Cr.PC he first denied that he was even living in the house of Ram Chander as a tenant with his wife and daughter. He claimed that they were staying in house of Mahesh @ Munna, the step father of the deceased. In answer to the next question he however replied that on the night of 08.09.2008, deceased had gone to house of her parents i.e. her mother and step father Mahesh @ Munna from his house thereby accepting that he with his family was residing in a separate house away from house of Mahesh and Munni Devi. Actually most of the replies given by the accused even in respect of the questions concerning him are either "I do not know" or "It is incorrect". Not only this, he claimed that he did not know as to how his wife died and even he did not know as to how he came to know about her murder. The answers given SC No.: 20/09 13 of 20 04.01.2011 SC No.20/09 FIR No. 521/08 PS Najafgarh State Vs Kailash by the accused clearly reflect that he was deliberately withholding the actual facts by giving evasive replies. This is an additional circumstance against him reflecting his guilty mind.
10. It has been held by Hon'ble Apex Court that by now it is a well established principle that in case where accused denies even an established fact and offers false answers in his examination under Section 313 Cr.P.C, it can be counted as an additional circumstance against him providing connecting link for completing the chain.
11. Admittedly after the incident, accused went missing and was untraceable. To justify his conduct, it was averred by the accused in his statement u/s 313 Cr.PC that he left Delhi as Mahesh @ Munna and Munni Devi had threatened to kill him if he stayed in Delhi. Surprisingly no suggestion to this effect was put to any of the witnesses during cross examination. In fact, during entire evidence, the accused did not come forth with any reasonable explanation about his flight from Delhi after the incident. It was never suggested to mother of the deceased that accused was SC No.: 20/09 14 of 20 04.01.2011 SC No.20/09 FIR No. 521/08 PS Najafgarh State Vs Kailash threatened by her or her husband Mahesh to leave Delhi. Here it is worthwhile to note that accused has himself in his statement pleaded that he had shifted to Delhi with his wife and daughter only on request of her mother in law Munni Devi. It being so, it does not appeal to reason that just after a week, Munni Devi would have threatened him to leave Delhi. Had it been so, Munni Devi would have not called him to Delhi at all. It is further alleged by the accused in his statement that the deceased was having illicit relationship with her step father Mahesh @ Munna and he had seen them in compromising position for three days. This again seems highly improbable. A person finding his wife in a compromising position on first day itself would take corrective measures and would not remain a silent spectator. It is not the plea of accused that immediately after the first incident, he had objected to the so called relationship or lodged any protest with Munni Devi, mother of the deceased. Obviously, after finding his wife in objectionable state with her step father the accused would not have allowed her to go there again to continue the relationship. PW11 Smt. Munni SC No.: 20/09 15 of 20 04.01.2011 SC No.20/09 FIR No. 521/08 PS Najafgarh State Vs Kailash Devi, in her statement on oath has deposed that on the late night of 08.09.2008 Saroj had come to her house, crying and complaining that the accused Kailash was suspecting her of having illicit relationship with Mahesh @ Munna. Munni Devi immediately went to accused Kailash, advised him that Mahesh was just like a father for Saroj, the deceased and thereafter, leaving Saroj with accused, she returned home. Munni was killed on the next very early morning. Apparently, the suspicion in the mind of accused Kailash about the alleged extra marital relations between deceased and Mahesh acted as a motive for him to stub the life of Saroj. He not only had motive but also the full opportunity to kill Saroj as only both of them with their infant child were living there in the said room.
12. Ld. Amicus Curaie has next contented that as per postmortem report, injury no. 2, a sickle shaped injury found on head of the deceased was caused by sharp edged weapon but still IO failed to recover any sharp edged weapon from the spot. It casts a doubt as to veracity of prosecution version. No doubt as per record, SC No.: 20/09 16 of 20 04.01.2011 SC No.20/09 FIR No. 521/08 PS Najafgarh State Vs Kailash the police did not find any sickle shaped weapon in the room but besides the said injury there were eleven other injuries noted on the dead body by the surgeon, having been caused by blunt force impact. A large stone slab lying on the head was also recovered from the spot. The deceased was also subjected to Antemortem smothering. As per the opinion of expert all the injuries were sufficient to cause death in ordinary course of nature. In these circumstances, mere failure to find any sickle shaped weapon in the room will not adversely affect the prosecution case at all, more particularly when the stone slab as seen in the photographs was not having a smooth surface. It is probable that the injury no.2 might have been caused by any part of the irregular surface of the slab.
13. Ld. Amicus curiae has also sought to highlight the conduct of parents of the deceased to contend that actually they were guilty of the murder of deceased because of which they left Delhi on 09.09.2008 itself. He continued that had they been innocent, they would have stayed back and informed the police about incident. No doubt on getting the information about murder SC No.: 20/09 17 of 20 04.01.2011 SC No.20/09 FIR No. 521/08 PS Najafgarh State Vs Kailash of Saroj, her parents immediately left Delhi but this does not lead to a conclusion that they had a guilty mind. It is stated by PW11 Munni Devi that on seeing the dead body she became confused and got scared due to which they rushed to their village. This cannot be outrightly rejected as abnormal in light of fact that just previous night, accused had expressed his suspicion that the deceased was having illicit relation with her step father Mahesh. In such circumstances, it was natural for them to be not only scared of accused but also to be apprehensive that they might be held responsible for her untimely death. Moreover it is not anyone's case that at night Mahesh and Munni were with the deceased and accused in the room where dead body was found or that they had any opportunity to kill her. They were staying away in a separate house and were not seen near the spot by anyone at the relevant time.
14. Lastly, the conduct of the accused that he absconded from the spot immediately after the incident and never produced himself before the police till he was arrested also points towards his SC No.: 20/09 18 of 20 04.01.2011 SC No.20/09 FIR No. 521/08 PS Najafgarh State Vs Kailash guilt. Had he been innocent, there was no reason for him to leave Delhi. He was seen leaving the room alone in the morning of 09.09.2008. He told his landlord that he was going to his in laws house. As noticed earlier, this part of testimony of PW1 is not rebutted by accused in crossexamination and is actually corroborated by statement of PW 11 Munni Devi who deposed that on the same morning, the accused had visited her house and left his daughter Ruchi with Munni Devi stating that she can keep her as he had killed Saroj. The accused has though denied this in his statement but he could not explain as to how Ruchi came in possession of Munni Devi and why she was not with him. He also failed to clarify as to why his wife Saroj did not accompany him on that day as per their routine.
15. Ld Addl PP has at this juncture drawn attention of court to the alleged confession made by accused before his mother in law that he had killed Saroj to canvass that this conclusively incriminating the accused. It is however, well settled by Hon'ble Superior Courts that extra judicial confession is a very weak piece SC No.: 20/09 19 of 20 04.01.2011 SC No.20/09 FIR No. 521/08 PS Najafgarh State Vs Kailash of evidence and not much reliance on the same can be placed. No doubt, factum of visit of accused to his in laws on that morning is proved by unchallenged testimony of PW1 Ram Chander but still failure of PW11 Munni to inform authorities immediately thereafter casts a doubt as to veracity of the so called confession of accused. Nonetheless the evidence brought on record by prosecution dehors the said confession is sufficient to conclusively establish all the incriminating circumstances relied upon by it against the accused. The circumstances taken together form a complete chain consistent not only with the guilt of accused but also inconsistent with his innocence.
16. For the forgoing discussion, accused is hereby convicted for the offence punishable under Sections 302 IPC. Put up on 15.01.2011 for consideration on the point of sentence.
Announced in the open
court on 04.01.2011 (MAMTA TAYAL)
ADDL.SESSIONS JUDGE:
DWARKA:DELHI
SC No.: 20/09 20 of 20 04.01.2011
SC No.20/09
FIR No. 521/08
PS Najafgarh
State Vs Kailash
IN THE COURT OF MS. MAMTA TAYAL
ADDL. SESSIONS JUDGE : DWARKA COURTS
NEW DELHI
SC No. 20/09
FIR No. 521/08
Police Station Najafgarh
U/Section 302 IPC
Judgment announced on 04.01.2011
Order on sentence 18.01.2011
State V/s Kailash
S/o Shri Pitam
R/o Village Sankhnorkitapania, PS
Kolaras, District Shiv Puri, MP.
ORDER ON THE QUANTUM OF SENTENCE
I have heard the convict Kailash in person, Ld. Amicus Curaie Shri R.K. Sachdeva as well as Ld. Substitute Addl. P.P. at length as to quantum of sentence to be awarded to the convict in the present case. It is urged by Ld. Amicus Curaie that convict is a young man SC No.: 20/09 21 of 20 04.01.2011 SC No.20/09 FIR No. 521/08 PS Najafgarh State Vs Kailash having liability of a small daughter. If convict is put behind bars forever, it is probable that she may be misused and may meet the same fate as her mother and her grand mother (nani). Ld. Amicus Curaie urged that convict can be reformed and rehabilitated as he has no criminal antecedents. Ld. Counsel prayed that a lenient view may be taken and minimum sentence may be awarded to the convict.
Per contra Ld. Substitute Addl. PP for the State has prayed for awarding capital punishment to the convict contending that by committing murder of his own wife, he has belied the faith reposed in him and his act has shocked the conscience of Society as a whole.
While awarding sentence, a delicate balancing of various factors such as those which give an insight into the state of mind, motivation, attitude and propensities of the accused has to be done while at the same time, keeping in view the larger societal interests. The principle that in case of murder, life imprisonment is the normal rule and the death sentence should be handed down in rarest of rare cases should of course be uppermost in the mind of the Judge.
The nature of the crime, the circumstances of the criminal SC No.: 20/09 22 of 20 04.01.2011 SC No.20/09 FIR No. 521/08 PS Najafgarh State Vs Kailash and the impact of the crime on the community are broadly the considerations that ought to be kept in view by a Court called upon to choose between the death sentence and the life imprisonment.
Analysing facts of instant case in this light, apparently this is not a case where it can be said with certitude that the murder was committed in diabolical and cruel fashion. Nor can it be said that "the nature of the crime and the circumstances of the offender reveal that the criminal is a menace to the society".
The present case certainly does not fall in the category of rarest of rare cases. I accordingly hereby sentence the convict to undergo imprisonment for life and to pay Rs.10,000/ as fine and in default of payment of fine, to further undergo S.I. for four months for the offence punishable U/s 302 IPC. The period already undergone by the convict in Judicial custody in this case shall be set off U/s 428 Cr.P.C as per law. Copy of the judgment and order on sentence be given to the convict, free of cost immediately. File be consigned to record room.
Announced in the open (MAMTA TAYAL) SC No.: 20/09 23 of 20 04.01.2011 SC No.20/09 FIR No. 521/08 PS Najafgarh State Vs Kailash court on 18.01.2010 ADDL. SESSIONS JUDGE DWARKA COURTS: NEW DELHI SC No.: 20/09 24 of 20 04.01.2011