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(Judgment) State vs Pawan @ Mama on 23 February, 2016

                                         (Judgment) State Vs  Pawan @ Mama
                                                                  FIR no. 36/08
                                                             PS: Sarasvati Vihar


      IN THE COURT OF SHRI PANKAJ GUPTA:ADDL. SESSIONS 
         JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI


Sessions Case No. 150/11
Unique Case ID: 02404R0377162008


State


Vs

Pawan @ Mama S/o Sh  Ram Chander 
R/o H. no. 102 Negsen Nagar Jeri Pakta 
Nagpur,Maharastra. 
Present Add: K­47, J.J. Colony,
Shakurpur, Delhi.                                                ...Accused



FIR No.               :      36/2008 
Police Station        :      Saraswati Vihar 
Under Section         :      302/459/354/307  IPC  

Date of committal to Sessions Court               :       05.05.2008
Date on which judgment reserved                   :       23.02.2016
Date on which judgment pronounced                 :       23.02.2016


JUDGMENT

1. This is a case under section 302/459/354/307 of Indian Penal Code, 1860 (IPC).

2. Case of the prosecution is that Dinesh Kapoor (the Page no..... 1/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar complainant) along with alongwith his wife Seema Kapoor, his son Subham and daughter Surabhi was residing on the first floor of the house no. 124, Rajdhani Enclave, Pitam Pura Delhi (hereinafter referred to as "the said house or the scene of crime"). Elder daughter of the complainant namely Shilpa Kapoor was married. Younger brother of the complainant namely Anish Kapoor along with his family and father Jagdish Chander was residing on the ground floor of the said house; and was doing the business of cable work & had employed the accused who was working with him for the last 10 to 12 years from the date of incident i.e. 16/17.01.2008. Another younger brother of the complainant namely Rakesh Chand Kapoor alongwith his family was residing on the second floor of the said house.

3. On 16.01.2008 at about 11.30 pm, the complainant and his wife slept in their bedroom situated on first floor of the said house. Their daughter namely Surbhi Kapoor aged about 20 years, was sleeping alone in her bedroom situated at the back side of the first floor of the said house. Their son Shubham aged about 8 years had gone to sleep with children of his uncle on the ground floor of the said house. At about 4.45 am, the complainant heard the noise (Chor Chor). Consequently, he woke up and ran towards the stair on the first floor and saw that his wife had caught hold of one person who was trying to ran away from there. He along with his Page no..... 2/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar wife pulled that person to the ground floor. That person had worn monkey cap on his face and had applied black colour on his eyes. That person gave a hammer blow on his head. After hearing the noise, his younger brother Anish Kapoor also came out of his room. They lifted his monkey cap and noticed that the said person was the accused. Anish Kapoor pulled blood stained one hammer and one knife from the hands of the accused. The accused had the blood stained surgical gloves in his both hands and that were also taken out. In the meantime, younger brother of the complainant Rakesh Kapoor and other family members also came there. That time, the complainant, on the asking of his wife, had gone to the bedroom of his daughter to look for her. In the meantime, Anish Kapoor made at 100 number. He noticed that Surabhi was lying on her bed and blood was oozing from her neck and stomach. He along with neighbour removed Surabhi to Maharaja Agrasen Hospital. At the hospital, Surabhi was declared brought dead. CHARGE

4. Charge under sections 457/458/459 IPC relating to house trespass with arms like knife was settled against the accused. He was also charged u/s 354 IPC and 302 IPC relating to Surbhi Kapoor. He was also charged u/s 307 IPC relating to Reema Kapoor. He was also charged under section 27 Arms Act, 1959 having been found in possession of one knife and using the same for committing Page no..... 3/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar murder of Surbhi and for assaulting Reema Kapoor. The accused pleaded not guilty and claimed trial.

EVIDENCE:

5. In order to discharge the onus upon it, the prosecution has examined 40 witnesses.

PUBLIC WITNESSES:

6. PW30 Seema Kapoor (mother of the deceased) deposed that her daughter Surbhi (the deceased) was undergoing training for Air Hostess. In the night of 16.01.2008, the deceased was sleeping in her room at the back side of the first floor while she along with her husband (PW1) was sleeping in the front room on the same floor. Her son was sleeping on the ground floor with children of PW31. At about 4.30­4.45 am, she woke up after hearing the noise of television which was on as the children had fixed the same on timer. She switched off TV and went to bathroom. She heard the noise of water pump as it was on. She got surprised after hearing the same. She went to the balcony at the back side of the first floor and saw that back door towards the balcony was slightly opened. She switched off the water pump as button was in the balcony. She came inside the room and was closing the door of the balcony as there was no light in the room as tube light was fused. Suddenly, Page no..... 4/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar one person came from behind and put his hand on her mouth which already had gloves on both hands. She tried to save herself but that person gave knife blow on her right hand. She cried but that person gave a hammer blow on her head. She fallen down near the door and that person gave two more hammer blows on her head and ran towards the stairs. She shouted and apprehended that person. In the meantime, PW1 came there and apprehended that person. That person gave one hammer blow on the head of PW1. That person was wearing a monkey cap on his head and had applied black colour near his eyes and was wearing gloves in his both hands and a jacket. In the meantime, PW31 also came there. They pulled his monkey cap and saw that it was accused who was working with PW31. In the meantime, PW23 along with his family members came on the ground floor. Since the deceased was not there, she asked PW1 to look for her. PW1 went towards the room of the deceased and came back and informed that she was seriously injured in her room and there was lot of blood on her bed. PW31 took the hammer and knife from the hands of the accused and made a police call. In the meantime, neighbours also reached there. The deceased was taken to Mahraja Agarsen hospital in a car of her neighbour by PW1 and PW35. She was taken to hospital along with PW23 in CATS ambulance. At hospital, she came to know that the deceased had expired.

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(Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar

7. PW30 also deposed that PW31 was running a cable network under the name of Dimple Cable Network and Dimple was his nick name. Accused was his employee for the last 12 years and they had complete faith in him and he used to do the house work also and drove their vehicle as per need. The office of cable network was on the ground floor and all the wires and amplifier was kept at the back side of the balcony on the first floor. 5­6 months prior to the incident, the deceased told her that intentions of the accused were not good as he wanted to make friendship with her. That time, she scolded the accused and told him that he was their family member and had seen the deceased since childhood. He assured that he would not repeat the same in future. She asked the deceased to take care. 25­30 days prior to the incident, the deceased told her that the accused again tried to make friendship with her. She scolded the accused and threatened him that she would complain to PW1 and PW31. The accused fell down on her feet and assured that he would not repeat the same in future. On 16.01.2008, the accused came to work and was present up to 5.30 pm in the said house. At the time of incident, she was wearing a night gown which was seized vide seizure memo Ex. PW30/A. She identified her gown Ex. P7 and the bag Ex. P10.

8. PW1 Dinesh Kapoor (the complainant/husband of PW30) deposed on the similar lines from the stage when after hearing the Page no..... 6/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar cries of PW30 at about 4.45 am, he reached at the stairs case till removing the deceased to the hospital as deposed by PW30. He proved his statement Ex. PW1/A and statement Ex. PW1/B identifying the body of the deceased. He identified one knife Ex. P1, one hammer Ex. P2, monkey cap of blue colour Ex. P3, pair of rubber gloves Ex. P4, blood stained bed sheet Ex. P5 and pillow cover Ex. P6 which were on the bed of the deceased, blood stained night gown of PW30 Ex. P7, clothes of the deceased i.e. one jacket of pink colour, one lady top, one pajama, one another pajama and one underwear of the deceased Ex. Ex. P8. He also identified the jacket, pant, pajama and T­shirt worn by the accused at the time of incident Ex. P9.

9. PW31 Anish Kapoor (bother of PW1) deposed that he was doing the work of cable operator and had employed the accused, Chhanu and one Chota Pawan as his employees. Accused was working with him for the last 12 years and used to do work of family members also. He deposed the facts on the similar lines from the stage once he reached the stair case on hearing the noise to making a call at number 100 as deposed by PW1 and PW30. He also deposed that he handed over the gloves, hammer, monkey cap and knife to the police. Crime team reached at the spot and took the photographs. Blood was found on the almirah in the room of the deceased which was lifted by the police. The police also lifted the Page no..... 7/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar blood from stairs, door of the first floor stairs and blood stained floor after breaking the same and seized the same vide seizure memo Ex. PW31/A. Police prepared the sketch of knife Ex. PW31/B and seized the knife vide seizure memo Ex. PW31/C. Police prepared the sketch of hammer Ex. PW31/D and seized the same vide seizure memo Ex. PW31/E. Police also seized blood stained bed sheet and pillow cover of the bed of the deceased vide seizure memo Ex. PW31/F. Police recovered one rod and one knife from the adjoining room of the deceased at the instance of the accused and seized vide seizure memo Ex. PW31/G, spectacle of the accused from varanda adjoining the room of the deceased and seized vide seizure memo Ex. PW31/H, one blood stained tape from left shoe of the accused and seized the same vide seizure memo Ex PW31/I. Surgical glove and monkey cap were seized vide seizure memo Ex. PW31/J. Once PW1 came back from the hospital, the police recorded his statement and prepared the site plan of the house. At the instance of the accused, the police recovered one tablet of Viagra and one slip mentioning Viagra and seized vide seizure memo Ex. PW31/K. Personal search memo of the accused is Ex PW31/L and his disclosure statement is Ex. PW31/M. He identified the dead body of the deceased vide Ex. PW31/N. On 17.01.2008, PW30 informed him about the previous complaints made by the deceased relating to misbehaviour of the accused to him.

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(Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar

10. PW31 also deposed that on 18.01.2008, the police recorded the disclosure statement of the accused Ex. PW31/O who stated that he could get recovered articles used in the incident. Thereafter, the police alongwith the accused came to his house. Photographer was also called. The accused got recovered one tape, one small bottle of black colour, one jamura, one cable cutter, three iron cutter blades, two packet of surgical gloves out of which one was empty and the same were seized vide seizure memo Ex. PW31/P. Police seized night gown of PW30 vide seizure memo already Ex. PW30/A. The accused stated that he could point out the places from where he purchased those articles. On 29.01.2008, blood sample of PW1 and PW30 were taken and were seized vide seizure memo Ex.PW31/Q. He identified the case property Ex P1 to P9. He also identified the bag of Dehraduni Basmati rice in which night gown of PW30 was kept Ex. P10; tape piece recovered from the shoe of the accused Ex. P11; one tape roll Ex. P12; one spectacle of accused Ex P13; iron rod Ex. P14; knife Ex. P15; packet of surgical gloves, black colour bottle, wire cutter of iron Ex. P16 and tablet & slip Ex. P17.

11. PW35 Kiran Kapoor (wife of PW23) deposed that at about 4.35 am, she heard the noise from the ground floor and thereafter, she alongwith PW23 reached the ground floor and saw that PW1 and PW31 had caught hold of the accused and blood was oozing from the heads of PW1 and PW30. She also deposed the facts as to Page no..... 9/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar how the injury of the deceased came to their notice and how she was removed to the hospital and was declared brought dead on the similar lines as deposed by PW30.

12. PW23 Rakesh Chand Kapoor deposed that facts on the similar lines as that of PW35. He relied upon the photographs Ex. PW20/A1 to PW20/A6. He also relied upon the Ex. P1 to Ex. P6.

13. PW34 Rajesh Goel (neighbour) deposed that on 17.01.2008 at about 4.30­5.00 am, he heard the noise from the said house and saw that some people were standing outside the said house. Once he came out, he saw PW1, PW31 and PW23 had caught hold of the accused. PW1 and PW30 were bleeding. Everybody was asking about the deceased. They rushed to the room of the deceased and PW1 firstly entered the room and tried to lift the body of the deceased but he could not. She was bleeding from neck and her clothes were smeared with blood. He brought his car and removed the deceased to the hospital alongwith PW1 and brother of his wife.

14. PW33 Ms. Renu Kapoor (wife of PW31) proved the salary statement relating to the accused from 1998 to 2007 Ex. PW33/B which was seized by the police vide seizure memo Ex. PW33/A.

15. PW18 Rajender Singh Chaudhary deposed that at 5.11 am, Page no..... 10/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar he picked PW30 in CATS van and removed her to the hospital.

16. PW19 Nagender Chhabara deposed that on 16.01.2008, PW31 scolded the accused as he had not completed the pending work. The accused was telling him that he had to work in office as well as the home. In reply, PW31 scolded him and stated that if his said behaviour would continue he would remove him from services. Accused got annoyed .

17. PW22 Kamal Falwaria deposed that on 18.01.2008, he was called by PW31 at the said house and he took the photographs Ex. PW22/A1 to Ex. PW22/A8 from a digital camera on the directions of Inspector Sanjay Sharma.

18. PW24 Nemat Ali deposed that he was running a hardware shop. However, he turned hostile and deposed that he had not given the statement Ex. PW24/PX1. However, in his cross examination conducted by the Ld. Addl. PP, he showed his ignorance whether the accused was the same person who was brought by the police to his shop and to whom he identified as the person having purchased the hammer and chhani from him.

19. PW25 Virender Kumar deposed that on 18.01.2008, the police had brought the accused to his shop and he informed that the Page no..... 11/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar accused had purchased one "jamura" (an implement used for pulling out the nails from wood/articles) and three iron cutters/blades.

20. PW26 deposed that he was running a stationery shop. The police brought the accused to his shop and he told to the police that accused had purchased a black colour bottle from his shop 3­4 days back on 16.01.2008. Police recorded his statement Ex. PW26/PX1.

21. PW27 Jitender deposed that he was running a medical shop and he had informed the police that he knew the accused as he used to purchase the medicines from his shop. However, he turned hostile to the point that the accused purchased one strip of Vigor­50 and pairs of surgical gloves from his shop.

22. PW28 Darshan Singh Bhandari deposed that he was carrying on the business of cable operator. Dimple Cable network was owned by PW31 who had employed the accused and another person by the name of Pawan to run the business. He knew PW31 and the deceased. 5­6 months prior to the date of incident the accused told him that he was in love with the deceased but she had refused and became angry. One or one and half month prior to the date of incident, the accused offered to marry the deceased but she became angry to the said offer. One day before the incident, the accused met Page no..... 12/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar him at Sant Nagar Chowk and was holding a polythene bag in his hand which contained one hammer, one cutter blade and one iron chhani. On being asked he told him that he would tell him after one or two days about the purpose of those articles. On 18.01.2008, he went to PS Saraswati Vihar where the accused was kept in custody. On being asked the accused told him that "maine tereko bataya nahi tha ke mera koi maksad hain. Surbhi meri nahi ho saki to kisiki nahi ho sakti aur maine use maar diya hai". Accused was married person having two children. Therefore, he tried to make him understand and not to make the offer to the deceased. But he continued to harass the deceased. After the first incident, he met PW31 and asked him not to allow the accused to enter his house as he was not a good person but he replied that he was a trusted person. Police recorded his statement.

POLICE WITNESSES

23. PW3 HC Jai Prakash proved copy of DD no. 8­A Ex.PW3/A regarding a thief had been caught at Rajdhani Enclave.

24. PW10 HC Amar Pal Singh deposed that on 17.01.2008 at about 5.02 am, he received a call from PW31 that a thief was apprehended. He filled up PCR Form, copy of which Ex.PW10/A.

25. PW8 ASI Sunita Dutta proved the copy of FIR Ex.PW8/A and Page no..... 13/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar endorsement on rukka Ex.PW8/B.

26. PW9 HC Sahab Singh deposed that on 17.01.2008 at about 7.05 am, it was informed that PW1, PW30 and the deceased were admitted in the hospital and the deceased was declared brought dead. He recorded DD no. 10­B copy of which Ex.PW9/A.

27. PW12 SI Baljeet Singh proved the Crime Team Report Ex.PW12/A.

28. PW15 Ct. Manoj deposed that on 17.01.2008, at about 10.30 am, Inspector Sanjay Sharma sent him to the PS to bring FIR and rukka.

29. PW14 HC Harkesh deposed that on 17.01.2008 at about 12.30 pm, he delivered one envelope containing copy of FIR to Joint CP, Northern Range through SO Office.

30. PW16 HC Ved Prakash relied upon copy of DD No. 10­B dated 17.01.2008 Ex.PW9/A.

31. PW29 Ct. Dharmender deposed that on 15.02.2008 he alongwith the accused visited Bhagwan Mahavir Hospital where blood sample of the accused was taken by the doctor which was Page no..... 14/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar seized vide seizure memo Ex.PW29/A.

32. PW11 SI Manohar Lal deposed that on 21.02.2008, he prepared the scaled site plan Ex.PW11/A at the instance of PW1.

33. PW20 Ct. Dalbir Singh deposed that he took 16 photographs Ex.PW20/A1 to Ex.PW20/A11 and negatives Ex.PW20/B1 to Ex.PW20/B16.

34. PW21 HC Narender Kumar proved the relevant entries in Register no. 19 Ex.PW21/A, Ex.PW21/B, Ex.PW21/C and Ex.PW21/D. He also relied upon the relevant entries in register no. 21 Ex.PW21/E, Ex.PW21/F and Ex.PW21/G. He also relied upon Ex.PW13/A and Ex.PW17/A.

35. PW13 Ct. Ram Raj proved the acknowledgment given by FSL Ex.PW13/A.

36. PW17 Ct. Ram Karan proved acknowledgment of FSL Ex.PW17/A.

37. PW32 HC Ravinder Nath deposed that on receipt of DD no. 8­ A, he along with PW36 and PW39 reached at the spot and met PW31 who produced one person whose name was disclosed as Pawan Page no..... 15/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar Kumar i.e. the accused. He noticed blood stains on the stairs leading from ground floor to first floor. On the first floor, there was a room and blood stains were found on the bed sheet and pillow lying on the bed. He had gone to Maharaja Agresen hospital and collected the MLC of injured person. Deceased was declared was brought dead. Dead body of the deceased was taken to BJRM Hospital for conducting the postmortem. After identification of dead body, postmortem was done on her body. Blood samples of deceased was seized vide seizure memo Ex.PW32/A.

38. PW36 Inspector Sunil Kumar deposed that on 17.01.2008, he along with PW32 and PW39 reached at the spot and saw blood stains lying on the stairs from ground floor to first floor and side walls also. Bed sheet and pillow lying on the bed in a room on the first floor were also having blood stains. PW31 met him and handed over the accused to him along with blood stained hammer, knife, gloves and monkey cap. In the meantime, PW38 and PW40 reached at the spot. He handed over the recovered articles and custody of the accused to PW38 and left for Maharaja Agarsen Hospital. He collected MLC of PW1, PW30 and the deceased. He recorded the statement of PW1 and prepared the rukka and handed over to Duty officer for registration of FIR. He relied upon seizure memo Ex PW32/A. In cross­examination, PW36 deposed that he reached at the spot and met PW31. He noticed blood on the jacket of the accused. He met PW1 after meeting PW31. No suggestion to the Page no..... 16/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar contrary was given.

39. PW37 Inspector Rajiv Shah deposed that on 17.01.2008, he joined the investigation with PW40 and reached at the spot. Crime team inspected the scene of crime. He recorded the disclosure statement of accused Ex. PW34/N on the direction of PW40. On 18.01.2008, he again joined the investigation and PW40 recorded the disclosure statement of the accused on 18.01.2008 Ex. PW31/A. Accused led them to the place of incident and got recovered the articles which were seized vide seizure memo Ex. PW31/P. PW30 handed over the black colour gown which was seized vide seizure memo Ex. PW30/A. The accused led them to Tanu Medicos and told them that he purchased the surgical gloves and medicine Vigora­50 from there two weeks earlier. Accused also led them to Bharat Tools and Hardware store and told that he purchased jammura and three iron cutters from there. He also led them to Triveni Stationers and told that he purchased the colour bottle from the said shop. He also led them to I­105 J.J. Colony and told that he purchased the hammer and chheni. He identified the case property Ex. P12 and Ex. P16.

40. PW38 SI Ved Prakash deposed that he joined the investigation with PW37 and PW40. On reaching the spot, he saw that PW31 had apprehended the accused. PW36 handed over to him one knife, Page no..... 17/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar hammer, surgical gloves and monkey cap. PW40 called the crime team and photographs were taken. Crime team lifted the bloods stains from the almirah of the room and stairs. He handed over hammer, knife, monkey cap and surgical gloves to PW40 who converted the same into parcels and seized them. PW40 also seized the blood socked bed­sheet and pillow cover from the room where the murder was committed and seized them. From another room adjoining to the room where murder was committed, one iron rod and bent knife lying on the bed kept in that room were also seized. From the balcony next to that room spectacle was seized. On the right side foot sport shoe which accused was wearing a tape was stuck and same was also seized. IO arrested the accused in his presence. His personal search was conducted and his disclosure statement was recorded. The accused was still wearing the blood stained clothes which he worn at the time of incident. Hence, PW39 was sent to house of the accused to collect another set of the clothes. Once the clothes were brought by PW39, the accused was made to change the same and his clothes were seized vide seizure memo Ex. PW38/C. He collected the clothes of the deceased kept in a parcel from Maharaja Agaresen hospital which were seized by PW40 vide memo Ex. PW38/A. Accused got recovered one blue pill of Vigora­50 and one slip with work Vigora­50 which was seized vide memo Ex PW38/B. He also relied upon Ex.PW38/K, Ex.PW38/L, Ex.PW38/M, Ex.PW38/O, Ex.PW38/P. Accused led them to shop of Page no..... 18/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar chemist and IO prepared the pointing memo Ex. PW38/D. He also led them to Hardware shop and pointing out memo Ex. PW38/E. He also led them to stationery shop and pointing out memo Ex. PW38/F and Shop­I­105 and pointing out memo Ex. PW38/G. He relied upon the Ex.P1 to Ex.P7, Ex.P9 to Ex.P16. He also relied upon Ex. PW31/A, Ex.PW31/C, Ex. PW31/E, Ex. PW31/J, Ex.PW31/F, Ex.PW31/G, Ex.PW31/H, and Ex.PW31/I.

41. In cross­examination, PW38 deposed that the chance prints were tried to be lifted from the almirah, dressing table, doors of the room of the deceased and adjacent room, doors of staircase and other furniture lying over there. No effort to lift the chance print from any other object were made in his presence. The balcony was joined with two rooms one of the deceased and other i.e. adjacent room. There was direct access to the room the deceased from the balcony and there was no requirement to pass through the adjacent room to reach her room. The balcony was visible to the adjacent houses and from this balcony other houses were also visible. The balcony around 25 ft long and around 6 ft wide. The accused was arrested at about 12.00­12.30 pm.

42. PW39 HC Devender Singh deposed that on 17.01.2008, he joined the investigation with PW36. PW31 produced the accused to them along with surgical gloves, monkey cap, hammer and knife. Page no..... 19/72

(Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar He took the accused into custody. Crime team came to the spot. The sketch of the knife was first prepared and was seized thereafter. He also deposed that once they came back to the police station, PW40 directed him to go to the house of the accused and collect another set of clothes and he did so. Thereafter, clothes of the accused were seized. He relied upon Ex.PW31/G, Ex.PW31/E, Ex.PW31/B, Ex.PW31/C, Ex.PW31/F, Ex.PW31/H, Ex.PW31/I, Ex.PW31/L, Ex.PW31/M, Ex.PW31/K, Ex.PW31/Q and Ex.PW38/B, Ex.PW31/C. He also relied upon Ex. P1 to Ex.P6, Ex.P9, Ex.P11, Ex.P13 and Ex.P15.

43. In his cross­examination, PW39 deposed that he noticed the blood on the clothes of the accused i.e. on his pant and shirt also. Hammer, knife, blood stained surgical gloves and monkey cap were handed over to him by PW31. Crime team did not lift the chance print from the hammer and knife.

44. PW40 Inspector Sanjay Sharma deposed that on 17.01.2008, he along with police staff reached at the spot. PW31 met him and narrated the incident. PW36 handed over to PW38 one knife, hammer, surgical gloves and monkey cap in unsealed condition recovered from the possession of accused. Crime team lifted the blood stains from the almirah of the room and wall of the staircase. They also lifted the earth control. PW38 handed over the articles to Page no..... 20/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar him. He prepared the sketch of knife and the hammer and sealed them. He deposed that he prepared the site plan Ex.PW40/A at the instance of PW1. He also relied upon Ex.PW32/A, and Ex.PW30/A. He also relied upon Ex.PW31/A, Ex.PW31/B, Ex.PW31/C, Ex.PW31/J, Ex.PW31/F, Ex.PW31/G, Ex.PW31/H, Ex.PW31/I, Ex.PW31/K, Ex.PW31/L, Ex.PW31/M, Ex.PW31/O, Ex.PW31/P. He also relied upon Ex.PW38/A, Ex.PW38/B, Ex.PW38/C, Ex.PW38/D, Ex.PW38/E, Ex.PW38/F, Ex.PW38/G. He proved the form­25.3.5 and statement of witnesses regarding the identification of the dead body Ex. PW40/B and receipt Ex. PW40/C regarding handing over of the dead body of the deceased to PW1.

45. In his cross­examination, PW40 deposed that accused was arrested about 12.10 pm. His father was informed and PW39 was sent to his house to collect the clothes. Father of the accused came to the police station at 1.30 pm. He admitted that the mobile of the accused was not seized as he did not have the same that time. MEDICAL EVIDENCE

46. PW2 Dr. Anil Jindal CMO, Maharaja Agarsen Hospital, proved MLC of PW1 Ex.PW2/A and deposed that he was fit for his statement and was having injury on forehead with swelling and multiple CLW and same were simple injury. He also proved the MLC of deceased Ex.PW2/B. He also proved the MLC of PW30 Page no..... 21/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar Ex.PW2/C.

47. PW4 Dr. Ajay Dalal, CMO Bhagwan Mahavir Hospital deposed that on 15.02.2008, he collected the blood sample of accused and prepared his MLC Ex.PW4/A.

48. PW6 Dr. K. Goel, CMO BJRM Hospital deposed that he conducted the postmortem on the body of deceased and proved his postmortem report Ex.PW6/A. He also proved the application moved by IO to obtained subsequent opinion Ex.PW6/B and his report Ex.PW6/C. He identified knife Ex.P1, hammer Ex.P2 and clothes of the deceased Ex.P3.

FORENSIC EVIDENCE

49. PW5 Parshu Ram Singh, Sr. Scientific Officer (Physics) FSL Rohini proved his report Ex.PW5/A.

50. PW7 V. Shankranarayanan, SSA (BIO) FSL Rohini, deposed that on 30.01.2008, 16 sealed parcels were received in the officer of FSL, Rohini Delhi in connection with this case. The seals on the parcels were intact as per the forwarding letter. He opened the above said parcels and examined the exhibits biologically. On biologically examination, blood was detected on Ex.1, Ex.2, Ex.3a, Page no..... 22/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar Ex.3b, Ex.4, Ex.5a, Ex.5b, Ex.6a, Ex.6b, Ex.6c, Ex.6d, Ex.6e, Ex.7, Ex.8, Ex.9, Ex.11a, Ex.11b, Ex.11c, Ex.11d, Ex.11e, Ex.12, Ex.13, Ex.14a, Ex.14b, Ex.15a and Ex.15b. Whereas blood could not be detected on Ex.10 and Ex.11f. He proved his biological report Ex.PW7/A. The above said exhibits were also examined by serologically. On serologically examination, Ex.1, Ex.3a, Ex.4, Ex.5, Ex.6c, Ex.6d, Ex.6e, Ex.11c, Ex.11d and Ex.13 showed reaction for human blood group­B. Ex.2, Ex.3b, Ex.5b, Ex.6a, Ex.7, Ex.8, Ex.9, Ex.11a, Ex.11b, Ex.11e and Ex.12 showed reaction for human origin of blood only. Since Ex.14a, Ex.14b, Ex.15a and Ex.15b i.e. blood samples were purified and hence, no opinion could be given. He proved his serological report Ex.PW7/B. The remnants of the above said exhibits after my examination were resealed with the seal of VSN, FSL, Delhi.

STATEMENT OF ACCUSED

51. After completing the prosecution evidence, statement of accused was recorded under Section 313 Code of Criminal Procedure in which the incriminating evidence/material was put to him to which he has denied. The accused stated that he is innocent and has been falsely implicated in this case. DEFENCE EVIDENCE Page no..... 23/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar

52. The accused has not led evidence in his defence.

53. I have heard the ld. Addl. PP and counsel for the accused and have perused the material available on record including the written submissions.

IDENTITY OF THE ACCUSED

54. From the testimony of PW1, PW30 and PW31, it is evident that the accused was the employee of uncle of the deceased i.e. PW31 who was doing the work of cable operator. Being so, he was known to PW1, PW30, PW35, the deceased and other family members. As such, there is no dispute as to the identity of the accused. Therefore, identity of the accused stands proved. DATE, TIME AND PLACE OF INCIDENT

55. It is evident from the record that the incident took place in the intervening night of 16th and 17th January, 2008 in the said house. According to the postmortem report of the deceased Ex. PW6/A, time since death was about 11­12 hours. As per postmortem report, the postmortem was conducted on 17.01.2008 at about 3.30 pm. As such, it can be held that death of the deceased took place between 3.30 am and 4.30 am that day. The accused has not disputed the said facts. As such, the date, time, place of Page no..... 24/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar incident and time of death of the deceased stand proved. MEDICAL EVIDENCE

56. PW2 Dr. Anil Jindal proved MLC of the deceased Ex.PW2/B and deposed that the deceased was brought dead. On examination the following injuries were noticed:

(i) Lower lip left side CLW present of 2 cm (through and through laceration).

(ii) Neck slashed with some sharp object from left lateral side till anterior middle of about 9 cm in length, 1.5 cm deep and 4.5 cm width vessels and tender exposed.

(iii) Left hand: CLW on based of thumb of 1 cm approx.

(iv) Right hand: injury with sharp instrument on ring finger at the based extending towards palm of about 4.5 cm.

(v) Three steps wound present on left side at left inguinal fossa.

57. PW6 Dr. K. Goel deposed that he conducted the postmortem on the body of deceased and proved his postmortem report Ex.PW6/A. On examination, the following external injuries were found:

(i) Incised wound about 1 inch long of left side of lower lip in Page no..... 25/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar its full thickness.

(ii)Cut throat injury 7.5 cm x 2 cm transversally placed of left side neck about 5 cm below left ear extending from mid line front of neck and about 2 cm above apple of adam. About 3 cm long tailing seen in the form of scratch extending from medial end of wound towards right side neck. On exploration, the underlying tissues were cleanly cut. Left sided blood vessels were cleanly and completely severed with massive clops inside the wound and surround issues. Rest of the neck structure were intact.

(iii) Incised wound 1 cm x 0.25 cm muscle deep just below lateral end of injury no. 2.

(iv) Three incised wounds muscle deep only over left iliac fossa quadrant of sizes 2 x .5 cm, 2.5 x .5 cm and 1.5 x .5 cm.

(v) Incised wound 4 x .5 cm over antero­medial aspect of right ring finger proximal phalynx, 1.5 x 0.25 cm in left first web space.

(vi) Three laceration each about 2.5 cm long in total area 4 x 3 cm over left parieto­occipital reasons.

58. PW6 deposed that the injuries sustained by the deceased were ante­mortem in nature. Injuries no.1 to 5 were caused by sharp cutting edged weapon. Injury no.6 was caused by blunt object. Cause of death was hemorrhagic shock consequent upon injury on Page no..... 26/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar neck vessel. Cutting throat injury was sufficient to cause death in ordinary course of nature. The mode of death was homicidal. The time since death was about 11­12 hours. He proved his opinion report Ex.PW6/C wherein it was specifically stated that injury no.1 to 5 mentioned in the postmortem report were possible by the knife produced by or similar to knife Ex. P1. Injury no.6 was possible by the hammer Ex. P2. He identified the knife Ex. P1 and hammer Ex. P2.

59. Counsel for the accused cross­examined PW2 and PW6 but nothing could come in favour of the accused. She has not disputed the nature of injuries, nature of weapons which were used to cause those injuries and the injury which resulted in the death of the deceased. Therefore, the connection between the nature of injuries, the weapon of offence and cause of death of the deceased stand proved.

60. Now the question arises whether the injuries caused to and resulted in death of the deceased are attributable to the accused.

61. Case of the prosecution is that the accused had evil eye on the deceased and offered for friendship to her which she refused. Once he could not fulfill his evil desire, he outraged her modesty and committed her murder. He also attempted to murder PW30. He Page no..... 27/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar was caught red handed along with weapon of offence at the scene of crime.

62. Per Contra, counsel for the accused pleaded that the deceased was attracted towards the accused and wanted to marry him. Once parents and family members of the deceased came to know the said facts, they objected to the same and tried to persuade the deceased to maintain a distance from the accused. Once they could not succeed in convincing the deceased, they committed murder of the deceased. Hence, it is case of honour killing. However, to save themselves, they falsely implicated the accused in the present case. PRESENCE OF THE ACCUSED AT THE SCENE OF CRIME

63. Ld. Addl. PP pleaded that PW1, PW23, PW30, PW31 and PW35 proved that the accused committed murder of the deceased and was caught red handed with weapon of offence at the scene of crime.

64. Per contra, counsel for the accused pleaded that on the date of incident, parents and family members of the deceased objected to her attraction towards the accused and her insistence to marry him and asked to her to maintain a distance from the accused. Once they remained unsuccessful, they started manhandling her and decided to eliminate her. That time, the deceased called the accused and in response thereto, the accused reached at the scene of crime Page no..... 28/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar at late night hours.

65. PW30 in her examination in chief specifically deposed that in the intervening night of 16/17.01.08 at about 4:30­4:45 am, she woke up after hearing the noise of television in her room and she saw that television was on as the children had fixed the television on timer and she switched off the television. Thereafter, she went to the bathroom and heard the noise of water pump as on. She was surprised who switched on the water pump as there was no requirement of the water at the night time. She went to the balcony in the back side of the first floor of the house and saw that back door towards the balcony was slightly opened. She was again surprised. She switched off the button of water motor pump which was in the balcony. When she came inside of the room and was closing the door for the balcony, suddenly, one person came from behind and put his hand on her mouth and he was wearing gloves on his both hands. She could feel that the same were surgical gloves. She tried to save herself but that person gave knife blows on her right hand. She cried and again tried to save herself. In that process, that person gave three hammer blows on her head and ran towards stairs. She shouted and apprehended that person from behind. The said testimony of PW30 remained unrebutted. PW1 and PW23 in their cross­examination also deposed that switch of the water motor was on the ground floor as well as the first floor in Page no..... 29/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar balcony adjacent to the room of the deceased.

66. PW30 further deposed that in the meantime, PW1 and PW31 also came over there and apprehended that person. That person was also wearing a monkey cap and a jacket. He had applied black colour near his eyes. On removal of his monkey cap, they found that it was the accused. Her testimony remained consistent and is also corroborated with the testimony of PW1 and PW31 to that effect. As such, according to them, the accused was apprehended at the spot.

67. Regarding the presence of the accused at the spot, in cross­ examination of PW30, counsel for the accused gave one suggestion that on 16.01.2008, she, PW1 and other brothers of PW1 manhandled and forced the deceased to distance herself from the accused and also tried to eliminate her on her refusal. That time, the deceased called the accused at her home at late night hours. In cross­examination of PW31, one suggestion was given that on the day of incident, he and his brother were forcing the deceased to severe her relationship with the accused and manhandled her. That time, the deceased called the accused on telephone and told him that PW1 and PW31 and other family members were trying to eliminate her. According to the said suggestions, the defence raised by the accused is that on the date of incident, it was the deceased Page no..... 30/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar who called him at the late night hours at the said house and in response thereto, he reached there. On the contrary, in cross examination of PW31, one suggestion was given to him that the accused telephone and call details were deliberately suppressed/ concealed as it would have revealed that the accused had been called by them to the spot on the fateful night and thereafter, falsely implicated him in this case. As such, there exists material contradiction in the defence of the accused as to who called him at the scene of crime in late night hours on the date of incident. Hence, an adverse inference can be drawn against the accused.

68. Further, in cross­examination of PW1, one question was put to him that when he apprehended the accused after how long PW31 and PW23 came over there and he replied that it was he and PW31 who apprehended him. PW31 in his cross examination deposed that he had not gone personally to the room of decease to check her after apprehending the accused and before she was taken to hospital. It implies that the accused was present at the spot and was apprehended there.

69. Counsel for the accused pleaded that IO has not seized the mobile phone of the accused because it could have shown that the accused was at another place and not at the scene of crime. It is the own case of the accused that he was present at the spot at late Page no..... 31/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar night hours. Therefore, non­filing of the said data is not fatal to the case of the prosecution. On the contrary, the accused could lead the evidence to prove the CDR data of his mobile phone to show that he was called either by the deceased or PW1 or his family members as alleged in the said fateful night. However, the accused has not led any evidence to prove the same. Further, the accused has not disclosed the time when the deceased called him and when he reached at the scene of crime. The accused has also not examined any of his family members including wife to prove that in the intervening night of 16/17.01.2008, he was at his residence and when he left the same and on what pretext. As such, the accused has failed to justify his presence at the scene of crime at those odd hours.

70. In view of the foregoing discussions, it can be held that the accused was present at the scene of crime not only at about 4.45 am on 17.01.2008 but also prior to that without justification. RECOVERY OF WEAPON OF OFFENCE I.E. ONE KNIFE AND ONE HAMMER

71. In the present case, the weapon of offence is knife Ex. P1 and hammer Ex. P2. Testimony of PW1, PW30, and PW31 remained Page no..... 32/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar consistent and corroborated each other on the material particulars that once they apprehended the accused, he was holding one knife and one hammer in his hands and it was PW31 who took both of them from his possession and handed over the same to the police officials.

72. PW31 in his cross­examination deposed that from the time when he apprehended the accused and before the police reached there, he along with his brother had removed his monkey cap and he took over the hammer and knife from his hands and also got gloves removed from his hands and handed over to the police after they came to the spot. In his cross­examination, no specific suggestions to the contrary were given.

73. Regarding identification of the weapon of offence, PW31 in his testimony, before production of the knife in the court for the purpose of identification, gave the complete description of the same and then he identified the same as Ex. P1. Ld Predecessor of this Court observed that except length which was slightly less, all the description of the knife given by PW31 matched with the knife. Similarly, before the production of hammer in the court for the purpose of identification, PW31 gave complete description of hammer and then identified the same as Ex. P2 in the court. It is not the case of the accused that from the date of incident till Page no..... 33/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar testimony of PW31 in the court, PW40 had shown those weapons of offence to him or had disclosed their description to him. Hence, the only occasion for PW31 to notice the weapons of offence was when he apprehended the accused and took the same from his hands. As such, PW31 proved the identification of the weapons of offence and their recovery from the accused at the scene of crime.

74. To this effect, PW38 deposed that PW31 handed over the weapons of offence, surgical gloves and monkey cap. PW39 also deposed that once he reached at the spot, PW31 met him and produced the accused before them and also handed over the weapons of offence. PW36 handed over those articles to PW 38. PW40 deposed that the same were seized vide seizure memo Ex. PW31/C and Ex. PW31/E. They identified the knife as Ex. P1 and hammer as Ex. P2.

75. In view of the foregoing discussions, it stands proved that weapons of the offence i.e. knife Ex. P1 and hammer Ex. P2 were recovered from the accused at the scene of crime and were seized by PW40.

ARREST OF THE ACCUSED

76. To prove the arrest of accused, the prosecution examined PW36, PW38, and PW39.

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77. As held above, the accused was apprehended at the scene of crime. PW36 deposed that once he reached at the spot, PW31 handed over to the accused along with weapons of offence, gloves and monkey cap to him. He handed over the accused to PW­38. PW40 in his cross­examination specifically deposed that the accused was arrested at 12.10 pm on 17.01.2008 and his father Ram Chander was informed about his arrest by sending PW39 to his house. Father of accused came in the police station at about 1.30 pm and was informed about his arrest. As per arrest memo Ex.PW31/K, the accused was arrested at the scene of crime at 12.10 pm. PW40 denied the suggestion that the accused was called in the police station and thereafter, falsely implicated in the present case. As held above, presence of the accused at the scene of crime, his apprehending by PW31 at the scene of crime and his handing over to police stands proved. It is nowhere the case of the accused that after apprehending him at the scene of crime, he was let of and thereafter, he was called in the police station at afternoon on 17.01.2008 and then was arrested.

78. Therefore, it can be held that the accused was arrested following due process of law.

CLOTHES OF THE ACCUSED Page no..... 35/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar

79. PW38 in his examination in chief specifically deposed that vide arrest memo Ex.PW31/K, PW40 arrested the accused in his presence. That time, the accused was wearing the blood stained clothes which he worn at the time of incident. On the direction of PW40, PW39 brought another set of clothes for the accused from his house and then he was made to change his clothes. Accordingly, the clothes worn by the accused at the time of incident were seized vide seizure memo Ex. PW38/C. He identified the clothes worn by the accused Ex. P9 (collectively). In cross­examination of PW38, no suggestion was given to him that the said clothes did not belong to the accused and were planted by PW40 to falsely implicate him in the present case. Testimony of PW38 is corroborated with testimony of PW31 who also in his examination­in­chief identified the clothes worn by the accused at the time of incident. In his cross­ examination also, no suggestion was given that he had wrongly identified the clothes of the accused. The said testimony of PW38 is further corroborated with the testimony of PW40. One suggestion was given to PW40 that the clothes Ex. P9 were planted upon the accused. But no such suggestion was given to PW31 or PW38. The accused in reply to question no. 14 in his statement under section 313 CrPC stated that case of the prosecution that another set of clothes were brought for him from his house and his blood stained clothes were seized was incorrect. But no such suggestion was given to PW 37, PW 38 and PW39.

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80. In view of the foregoing discussions, it can be held that the blood stained clothes Ex. P9 (collectively) were worn by the deceased at the time of incident and were seized vide seizure memo Ex. PW38/C. CLOTHES OF THE DECEASED

81. PW1 and PW31 identified the clothes of the deceased worn by her at the time of incident as Ex. P8. PW38 deposed that he collected the clothes of the deceased from Maharaja Agarsen Hospital and the same were seized by PW40 vide seizure memo Ex. PW38/A. PW40 also deposed on the similar lines. He also identified the clothes of the deceased as Ex. P8. No suggestion to the contrary was given to the said witnesses. Hence, it stands proved that the clothes Ex. P8 are the clothes which were worn by the deceased at the time of incident.

82. PW31 and PW40 proved that the blood stained bed­sheet Ex. P5 and the pillow cover Ex. P6 lying on the bed of the deceased were seized vide seizure memo Ex. PW31/F.

83. PW 6 deposed that gauze piece described as blood sample of the deceased was preserved.

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84. In cross examination of PW1, no suggestion was given that the case property identified by him was not seized from the scene of crime or they were planted upon the accused to falsely implicate him in the present case.

85. In view of the foregoing discussions, it can be held that the blood stained clothes of the deceased Ex. P8 (collectively) were worn by her at the time of incident and were seized vide seizure memo Ex. PW38/A. FORENSIC EVIDENCE

86. PW7 proved his biological report Ex. PW7/A and serological report PW7/B. Perusal of the said reports reveal that Parcel no. 13 contained brown gauze clothe piece Ex. 13 as blood sample of the deceased and on examination, human blood of group­B was detected on the same. Parcel no. 6 contained the clothes of accused comprising of one baniyan Ex. 6c, one pant Ex. 6d and one pant 6e and on examination, the same were found containing blood of group­B. On one jacket 6a and one T shirt 6b also, human blood was detected but with no reaction. Parcel no.11 contained the clothes of the deceased comprising of T shirt Ex. 11/C and one payjama Ex. 11/E which contained the human blood of group­B. Parcel no.1 contained one knife Ex. 1 having human blood Group­B and parcel no. 2 contain one hammer Ex. 2 containing human Page no..... 38/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar blood but group could not be detected. Pair of the gloves Ex 3a also had human blood of Group­B. On the monkey cap Ex. 3b human blood was detected. Similarly, on bed­sheet Ex. 5A human blood Group­B was found.

87. In view of the foregoing discussions, it can be held that the blood group of the deceased was " B" and same blood group was found on the clothes of the accused at the time of his arrest. No explanation has been given by the accused as to how the blood of the deceased came on his clothes because though he tried to build up a case that he was called by the deceased but he completely failed to disclose the scene especially whether the deceased was alive or dead when he reached at the spot.

88. Counsel for the accused pleaded that no fingerprints of the accused were found on the weapon of offence. It is the specific case of the prosecution that the accused had worn the surgical gloves in his both hands which were smeared with blood when he was apprehended at the spot. As held above, human blood group­B was detected on those gloves. Therefore, firstly, there was no chances of having the fingerprints on those weapons of offence and secondly, this shows the connection between the accused, gloves, knife and murder of the deceased. Further, the knife and pair of gloves recovered from the possession of the accused at the scene of crime had the blood of the deceased. So far as the hammer is concerned, Page no..... 39/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar the same also contained the human but blood group could not be detected.

MOTIVE

89. Case of the prosecution is that the accused had the evil eye on the deceased and once, she refused his offer for friendship, he became inimical towards her. Lastly, when the accused failed to fulfill his desire, he committed murder of the deceased.

90. On the other hand, counsel for the accused pleaded that the deceased was attracted towards the accused and wanted to marry him. However, parents and family members of the deceased were not agreed to the same. Since the deceased did not concede to their demand, they started manhandling and harassing her. On the date of incident also, they manhandled and harassed her and when they did not succeed, they decided to eliminate her. In the said process, they conspired with each other and committed the murder of the deceased to save their reputation in the society. To execute the said plan, PW1 and PW30 sent their son to sleep on the ground floor where PW31 along with his family members resides. As such, it is the case of Honour killing.

91. PW30 in his cross­examination specifically deposed that 5­6 Page no..... 40/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar months prior to the date of incident, the deceased told her that intention of the accused was not good as he had offered for the friendship with him. In response thereto, she scolded the deceased and tried to make him understand that the deceased was like his child. That time, the accused assured that he would not repeat the same. 20­30 days prior to the date of incident, the deceased again told her that the accused had again offered for friendship to her. She again scolded him and threatened that she would make a complaint to PW1 and PW31 if he would again approach her. That time, the accused tendered his apology and assured that he would not repeat the same in future.

92. PW30 in her cross­examination also deposed that she had not met with the family of the accused but was aware that he had parents, brother, wife and children. She never tried to contact when she came to know that the accused offered for friendship to her daughter either first time or second time. She denied the suggestions that the deceased was attracted towards the accused and was insisting to marry him and had developed a soft corner for him; after coming to know of it, PW1 had threatened the accused and his wife to leave Delhi which he did not agree; she herself had called the accused wife at her house and asked her to prevail upon the accused to leave the employment in Delhi otherwise PW1 would either kill the accused or her daughter i.e. the deceased; she tried to Page no..... 41/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar prevail upon the deceased to end her relationship with the accused; PW1 tried to mishandle the deceased even prior to 16.01.2008 but the deceased revolted despite that they did not give their consent for her relationship with the accused because he was married and was a petty employee; on 16.01.2008, she, PW1, PW23, 31 again manhandled the deceased and forced her to maintain a distance from the accused and on her refusal, they all tried to eliminate her on 16.01.2008; and the deceased called the accused at the house at late hours as they were mishandling her on that account. She also denied a suggestion that family members conspired to murder the deceased and thereafter, implicated the accused to save themselves.

93. In cross­examination, PW30 denied the suggestions that due to financial crisis, PW1 was addicted to alcohol; he was short tampered and for that reason even father of PW1 and her daughter were not open with him; PW1 had put lot of restriction on her and both her daughters in moving out of the house freely.

94. In view of the said suggestions, the accused tried to build up a case that PW1 was in financial crisis and had closed his factory 20­25 days prior to the date of incident. PW1 was a short tampered person and was aggressive in nature to such an extent that he had not allowed his wife and the daughter to move out freely. On coming to know about her inclination towards the accused and her Page no..... 42/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar intention to marry him, even prior to 16.01.2008 and on that day, he mishandled the deceased. Once he could not succeed, he along with his family members conspired to eliminate the deceased.

95. The first question arises as to when PW1 and PW31 came to know about the inclination of the deceased to marry the accused for the first time. In the entire cross­examination of PW1, PW30 and PW31 no suggestion was given to that effect.

96. Testimony of PW 30 reveals that on 17.01.2008 at night, she informed PW31 about the offer for friendship made by the accused to the deceased. That time, PW31 asked her not to disclose the same to PW1 as he was not in a proper mental condition on account of said incident. Accordingly, she informed about the said offer to the police on 18.01.2008 in the morning and to PW1, 8­10 days thereafter.

97. PW31 in his cross­examination deposed that on 17.01.2008, PW30 informed him only about the offer made by the accused to the deceased. No suggestion to the contrary was given. He denied one suggestion that PW30 had not disclosed the said fact to PW1 instead disclosed the same because PW1 was short tampered. The said suggestion reveals that on the one hand, on 17.1.2008, PW31 for the first time came to know about the offer made by the accused Page no..... 43/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar to the deceased and on the other hand, the said fact was not disclosed to PW1 even on 17.01.2008. Further, in his cross­ examination, PW31 admitted one suggestion that prior to 17.01.2008, he was not aware of the affair between the accused and the deceased. He also admitted one suggestion that if he would have come to know about the same prior to 17.01.2008, he would have removed the accused from the service. The said suggestion revealed that even in that situation, according to the accused himself, PW31 would not have killed the deceased and at best, he would have removed the accused from the services. In his cross­ examination, PW1 specifically deposed that PW30 informed him about the said relationship after 15 days of the incident. No suggestion to the contrary was given. As such, there was no occasion for PW1 and PW31 to know the said facts prior to 17.01.2008 i.e. before the date of incident.

98. According to the accused, it was the deceased who called him at the spot and not PW1, 30 and 31. On the contrary, another suggestion was given to PW31 that they had called the accused. Further, it is not the case of the accused that the said persons were aware of the said call of the deceased or that the accused was about to reach at the spot. As such, there was no occasion for them to know about his arrival at the spot to falsely implicate him in the present case. Further, if they had committed the murder of the Page no..... 44/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar murder of the deceased because of her relationship with the accused then why would they have called him to create evidence against themselves because it is not the case of the accused that once he reached there, the deceased had already been murdered. Further, if they had already murdered the deceased then why would they have left the accused and had not caused any hurt to him who was the main cause of all the dispute and had cost the life of the deceased.

99. On the other hand, the accused has not disclosed the date nor led any evidence to prove that either PW30 or PW31 had threatened the accused or his wife to leave Delhi, in case, he would not stop or mend his ways. Further, according to the accused, PW1, PW30 and PW31 were aware of their relationship much prior to the date of incident and were not ready for the same and had harassed and manhandled her on various occasions in past also. Being so, the accused has failed to explain if the deceased had informed him that PW1 along with family member was trying to eliminate her and he had much concern for her well being then why he had not immediately informed the police. On the contrary, he surprisingly visited the spot at late hours alone without taking any precaution. Further, regarding the date of incident, in the entire cross­ examination of PW30, the accused has not disclosed at what time the deceased called him on the date of incident and at what time, he reached at the spot at late night hours and what he observed at that Page no..... 45/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar stage.

100. Counsel for the accused pleaded that if the accused had offered for friendship to the deceased then either the deceased or PW30 would have disclosed the said fact to PW1. The deceased should have shared the said facts with PW33 and PW35 also as according to them, she was close to them. Firstly, the said plea is contrary to the suggestion that PW1 was short tampered and his wife and daughter scared of him. Secondly, PW1 and PW30 categorically stated that the deceased used to share the problems with both of them depending on its nature. Keeping in view the nature of offer made by the accused to the deceased, it is very natural that being the part of conservative family, she felt more comfort with PW30 to share the said facts in place of PW1. Thirdly, PW33 in her cross­examination though admitted one suggestion that she was close to the deceased and she mostly share all the issues with her but stated the same depends on the situation. Deceased never disclosed to her the accused had an evil eye on her. PW35 also in her cross­examination deposed that the deceased was close to her and used to share all the issued with her. Though, she loved the deceased but was not so close to her that they shared all personal issues. As such, it can be held that the deceased did not use to discuss all the issues with PW33 or PW35. In view of the foregoing discussions, it can also be held that the deceased Page no..... 46/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar discussed those two incidents with PW30 only and her said conduct was natural.

101. The accused in his statement u/s 313 CrPC remained completely silent that the deceased was attracted towards him and wanted to marry him; once parents and family members of the deceased came to know the said facts, they objected to the same and tried to persuade the deceased to maintain a distance from the accused; and once they could not succeed in convincing the deceased, they committed murder of the deceased, hence, it is case of honour killing. The accused has also not stated that on 16.01.2008, PW1, his brothers and PW30 manhandled and forced the deceased to distance herself from the accused and also tried to eliminate her on her refusal. That time, the deceased called the accused at her home at late night hours. On the contrary, the accused in reply to question no. 107 in his statement under section 313 CrPC stated that he did not know why PW1, PW30 and PW31 named him in this case and the allegation that he was in love with the deceased was absolutely false. Firstly, statement of the accused is contrary to the suggestion given to PW1, PW30 and PW31. Secondly, vide the said statement, he tried to show that he had not relationship with the deceased. But if that was so, then the accused has failed to explain as to why he reached at the scene of crime at late night hours on mere calling of the deceased even without Page no..... 47/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar informing the police.

102. In view of the foregoing discussions, it can be held that on one hand, PW30 remained consistent as to the period when the deceased informed her about the offer for friend ship made by the accused to her on two occasions and her objections to the same to the accused. PW1, PW30 and PW31 also remained consistent and corroborated each other to the fact that prior to 17.01.2008, PW1 and PW30 were not aware of any such offer made by the accused to the deceased. Since PW1 and PW31 were not aware of the said relationship prior to 17.01.2008 there was no occasion for them to enter into a conspiracy to eliminate the deceased or to falsely implicate the accused in the present case. On the other hand, the accused has failed to prove that in the intervening night of 16th­17th.01.2008 the deceased called him at the spot on the ground that her family members were manhandling her. Therefore, it stands proved that the accused had the motive to commit the offence.

103. Counsel for the accused pleaded that according to the prosecution, on 16.01.2008, PW1 scolded the accused and the accused decided to take the revenge from him. If that was so, then, the accused should have caused hurt to PW31, his wife or the children but not the deceased. Main case of the prosecution is Page no..... 48/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar rested on the motive that the accused had evil eye on the deceased. The prosecution took the said plea as an additional motive for the accused to commit the crime. As held above, the said motive stands proved. Therefore, the said plea of no consequence. PREPARATION

104. The prosecution examined PW24 to PW28 to prove that the accused made the preparation to commit the offence.

105. PW24 was examined to prove that once PW40 produced the accused at his shop, he identified the accused as a person who purchased one hammer and an iron rod from his shop on 16.01.2008 at 4.30­5.00 pm. In his examination in chief, he turned hostile. However, in his cross­examination, he showed his ignorance whether the accused was the same person to whom he identified having purchased the hammer and chheni from his shop. The said conduct of PW24 reveals that he had identified the accused as the person who purchased the hammer and chheni from his shop.

106. PW25 in his examination in chief identified the accused who purchased one jamura and three iron cutters from his shop. In his cross­examination, he deposed that he knew the accused before the incident as he used to come to his shop very often and used to purchase the items from his shop. In his cross­examination, he deposed that he used to give the bill to the customer once Page no..... 49/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar specifically asked for. He admitted a suggestion that two years prior to date of his deposition in the court, he did not maintain any sale register. As such, non­production of bill book and sale register is not fatal to the case of the prosecution. Testimony of PW25 remained consistent. Hence, it stands proved that the accused purchased one jamura and three iron cutters from the shop of PW25.

107. PW26 identified the accused in the court and deposed that the accused purchased a black colour bottle from his shop 3­4 days prior to the date of incident. In his cross­examination, he deposed that he did not maintain the sale register or receipt book to show the sale of goods. Accused used to purchase the stationery items from his shop. He specifically denied that he identified the accused at the instance of the police. It is not unusual on the part of PW26 to sell or on the part of the accused to purchase one black colour bottle from the shop without receipt. Hence, it stands proved that the accused purchased the black colour bottle from the shop of PW26.

108. The prosecution examined PW27 to prove that the accused purchased one strip of Vigor­50 and pair of surgical gloves. However, he turned hostile as to the identity of accused person and purchase of the items from his shop. As such, the prosecution has failed to prove that the accused purchased the Vigor­50 and surgical gloves Page no..... 50/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar from the shop of PW27.

109. The prosecution examined PW28 to prove that one day prior to the incident, he noted that the accused was carrying one hammer, one cutter blade and one iron chheni. In his cross­ examination, he specifically deposed that he met accused at Sant Nagar chowk one day prior to the incident and he saw that he was carrying hammer, iron chheni and a cutter in a polythene in his hand. In his cross­examination, one suggestion was given that the accused was not carrying the polythene with the said article. The said suggestion proves the presence of the accused at Sant Nagar Chowk. In response to the court question he specifically deposed that polythene was not opened but he could see those implements inside the polythene. He also mentioned about the size of hammer and its handle as well as chheni in words as well as by gesture. No suggestion to the contrary was given. As such, testimony of PW28 remained consistent and trust worth to that extent. Therefore, the facts deposed by his stands proved.

110. In view of the foregoing discussions, it can be held that the accused made the preparation for commission of the offence. RECOVERY OF THE ARTICLES

111. Prosecution examined PW37, PW38 and PW40 to prove the Page no..... 51/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar recoveries made at the instance of the accused. PW37 specifically deposed that on 18.01.2008, the disclosure statement of the accused Ex. PW31/A was recorded. Accused led them to the place of incident and got recovered the articles and also led them to the shops run by PW24, PW25, and PW27. PW38 also deposed on the similar lines and proved the pointing out memos Ex. PW38/D, Ex. PW38/E, Ex. PW38/F and Ex. PW38/G. In his cross­examination he specifically deposed that on 18.10.2008, he left the police station at 9.00am and gave the sequence wise description as to how they proceeded from one shop to another. He wrote the disclosure statement on the dictation of PW40. The recoveries were effected on 17.01.2008 and 18.01.2008 but no public witness was made .

112. PW38 in his cross­examination specifically deposed on 18.01.2008, he left the police station at 9 am and departure entry was made by PW40. He also gave the sequence wise details of their visit to the different shops as given by PW37. In addition, he specifically mentioned the time of their visits. The cutter which was recovered was wrapped in the newspaper. This corroborates the testimony of PW37. He identified three cutters Ex. P16A (collectively) and torn newspaper piece Ex. PW16B. He denied the suggestion that recoveries were planted upon the accused or that the accused had not pointed out anything.

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(Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar

113. In view of the foregoing discussions, it can be held that the recoveries were made at the instance of the accused on 17.01.2008 and 18.01.2008 and the same inspire confidence of this court. EXTRA JUDICIAL CONFESSION

114. The prosecution examined PW28 to prove that 5­6 months prior to the date of incident, the accused told him that he was in love with the deceased, however, she refused and became angry and that 1­1½ month before the date of incident, the accused offered to marry the deceased and she again became angry. He deposed that he never told the parents of the deceased that the accused had eye on the deceased or tried to propose her. He denied a suggestion that he had frequent interactions with the deceased or that he was his good friend. If that is so, there was no occasion for the deceased to share his secret love towards the deceased and his act of murdering the deceased with him. Hence, the extra judicial confession of the accused made to PW28 does not inspire confidence of this court.

115. Counsel for the accused pleaded that in the DD no. 8A lodged on 17.01.2008 at about 5.15 am, the information given was that one thief had been caught. There is no mentioning of the name and description of the person who had been caught at the spot despite the fact that according to PW31, he had come to know that it was his employee. Further, there is no mentioning of the fact that Page no..... 53/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar some murder had also taken place at that place. This shows that the accused has been falsely implicated in the present case.

116. In PCR Form Ex.PW10/A, the information recorded was that "one thief had been caught at the scene of crime". As per report received from the van, thief was identified and as Pawan S/o Ram Chander with his residential address and from his possession one knife and one hammer were recovered. Further, PW30 in his cross­ examination deposed that on coming to know that the apprehended person was the accused, the police was called by PW31. No suggestion to the contrary was given. It is not the case of the accused that murder of the deceased had been committed after lodging of the said DD entry and the accused came to the spot after lodging of the said DD entry. Further, the accused has been specifically named in FIR Ex. PW8/A.

117. In view of the foregoing discussions, it can be held that once the accused was apprehended at the spot and after coming to know that it was the accused, PW31 made the police call and DD no. 8A was lodged. By that time, it was not known to PW31 the deceased had been murdered. Therefore, non­mentioning of name of the accused in the DD entry no. 8A and of the fact that murder of the deceased had been committed, is not fatal to the case of the prosecution.

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118. Counsel for the accused pleaded that PW2 deposed that the doctor was duty bound to mention name of the assailant in the alleged history in the MLC. However, in the present case though PW1 took the deceased to the hospital but had not named the accused as assailant in the history nor the doctor had asked him name of the assailant. This proves that the accused has been falsely implicated in the present case.

119. As held above, in the PCR Form Ex. PW10/A and FIR Ex. PW8/A name of the accused is specifically mentioned. Therefore, merely because in the MLC Ex. PW2/B name of the accused is not mentioned is fatal to the case of the prosecution.

120. Counsel for the accused pleaded that according to the prosecution, the deceased was removed to the hospital in the car of PW34. However, blood from the seat of the car was not lifted. Therefore, case of the prosecution is doubtful. In the present case, it is evident from the record that body of the deceased was lying in a pool of blood. PW34 specifically deposed that the deceased was removed to the hospital in his car. As per biological report Ex. Ex. PW7/A, blood group of the deceased was 'B'. Therefore, non­lifting of the blood sample from the car of PW34 is of no consequence. Page no..... 55/72

(Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar

121. Counsel for the accused pleaded that according to the prosecution, the knife Ex. P1 and hammer Ex. P­2 were recovered from the accused at the spot. Both the weapon of offence had blood stains. According to prosecution, each weapon of the offence was placed on separate white paper and their sketch were prepared i.e. sketch of knife Ex. PW31/B and sketch of hammer Ex. PW31/D. Thereafter, knife was seized vide seizure memo Ex. PW31/C and hammer was seized vide seizure memo Ex. PW31/D. However, on both the papers, there is not even a single spot of blood. This shows that the said weapons of offence were not seized from the spot and were planted upon the accused to implicate him in the present case.

122. PW40 deposed that he prepared the sketch of knife and hammer and then sealed them. As such, according to him, sketch of the knife and the hammer was firstly prepared and thereafter, they were seized vide respective seizure memos. The said plea of counsel for the accused is not sustainable in law because firstly, in cross examination, no question was put to PW40 or any clarification was sought from him to that effect. Secondly, it is evident from the record that both the weapons of the offence were sealed and seized at the scene of crime. It is evident from the report Ex. PW7/A that the Parcel no. 1 and Parcel no.2 containing those weapons of offence received by PW7 were sealed. As per the report Ex. PW7/A on Ex. P1 i.e. knife and Ex. P2 i.e. hammer blood was detected. The Page no..... 56/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar accused has failed to prove that from the time of seizure of those two weapon of the offences and till their reaching to the FSL, the seals were tampered with. It implies that the way they same were sealed at the scene of crime, in the same condition they were sent to FSL for examination and their seals were intact. Therefore, the only occasion for PW40 to prepare the sketch of those weapon of offence was at the scene of crime as deposed by him. Non detection of the blood on the said papers is due to the fact that as evident from the record, a considerable time had lapsed between once the accused was apprehended at the spot with weapon of offence and when PW40 prepared the sketch of the same which facilitated clotting of the blood.

123. Counsel for the accused pleaded that according to the prosecution case, piece of blood stained adhesive tape Ex. P­11 was noticed on the left leg shoe of the accused at the scene of crime and the same was sealed and seized vide seizure memo Ex.PW31/I. But according to PW5, no footprint was noticed on the adhesive tape. This shows that the said piece of adhesive tape was planted upon the accused.

124. As per the report Ex. PW7/A, the said piece of tape was marked as Ex. 4 (Ex.P11) and blood group of the deceased i.e. 'B' was detected on the same. Further, it is the case of the prosecution Page no..... 57/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar that on 18.01.2008, one roll of the adhesive tape was recovered from the balcony at the instance of the accused. According to FSL report Ex. PW5/A, both the tape were similar in width, tape colour, texture, weaving pattern, number of the warp and weft, tape of twist pattern, burning pattern and UV Fluorescence. It implies that the tape recovered from the shoe of the accused was part of the same tape which was recovered at his instance on 18.01.2008. It implies that piece of tape Ex. 4 was used in commission of the offence. So far as the footprints are concerned, the prosecution has not mentioned the place where was stuck on the shoe of the accused to ascertain whether it was possible to have footprints on the same. Therefore, non­detection of footprints on the tape Ex. 4 is not fatal to case of the prosecution.

125. Counsel for the accused pleaded that according to the prosecution, the accused hide himself in the balcony in the night hours and once he got the opportunity, he entered the room of the deceased after opening the latch of the door from the balcony and then entered in her room. However, it has come in the evidence of PW 38 that the said balcony was visible from the opposite houses. Therefore, it was not possible for the accused to hide in the said balcony.

126. It is evident from the record that the accused being the Page no..... 58/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar employee of the PW31 for the last 10­12 years, was well aware of the geography of the said house and there was ample space in the balcony for a person to hide himself. As held above, the presence of the accused at the scene of crime during the late night hours on the date of incident without justification stands proved. It is evident from the scaled site plan Ex PW11/A that there was a door in the room where the deceased was sleeping and also in the adjacent room which opened towards the balcony. PW11 specifically deposed that the distance between the window and the door in the adjacent room was 6 inches. It is also evident from the record that there was sufficient space in the balcony for a person to hide himself. Further, the recovery of the articles made at the instance of the accused from the balcony on 18.01.2008 reveals that the said space was used by the accused to hide himself. Even otherwise, the fact remains that presence of the accused on the first floor of the said house in the said fateful night without justification stands proved. Therefore, the plea of the counsel for the accused that if he would have been there, then resident of the opposite house would have noticed him is not sustainable because it was a winter night and therefore, it was neither inconvenient for the accused to hide himself in the balcony nor easily possible for the resident of opposite building to notice him. More so, once the accused had come over there to commit the crime then he would have taken all precaution not to come in the notice of any person. Page no..... 59/72

(Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar

127. Counsel for accused also pleaded that PW1 neither handed over his clothes to PW40 nor made a police call at 100 number. This shows that PW1 was not present at the spot. Firstly, no suggestion to that effect was given to PW1. Secondly, the said submission is contrary to case of the accused that it was PW1 who along with his brother committed the murder of the deceased. Thirdly, MLC of PW1 Ex. PW2/A reveals that he was medically examined at the hospital once he reached there at 5.30 am on 17.01.2008. The accused has not given any suggestion to PW2 that the said MLC was procured by the prosecution and PW1 was not examined at that time. Hence, the said plea is not sustainable in law.

128. Counsel for the accused pleaded that as evident from the testimony of PW1 and PW30 that their elder daughter Shilpi eloped with a boy and married him against their wishes which shows the deceased was not of a good character. She also pleaded that if proper medical examination of the deceased would have been conducted then it could have been detected that the deceased was habitual to the physical relationship. These facts are not relevant to decide the present case.

129. Counsel for the accused pleaded that as is evident from the testimony of PW1, PW30 and PW31 that the accused had been Page no..... 60/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar trustful to them and never misbehaved with female family members, therefore, there was no occasion for him to indulge into such an act. As held above, the accused had motive to commit the offence. Therefore, merely because he had been good to rest of the family members, is not sufficient to hold that he could not indulged into such an act.

130. Counsel for the accused also pleaded that as a part of conspiracy, PW1 and PW30 got their son to sleep on the ground floor with the children of PW31. Case of the prosecution is that their son used to sleep with the children of PW31. PW23 denied one suggestion that they had sent the son of PW1 to the ground floor so that he should not witness the incident. PW33 in her cross­ examination also deposed that son of PW1 slept with them down stair with her children aged about 11 years. She denied the suggestion that all the children used to sleep upstairs and on that particular day children were deliberately made to sleep downstairs because PW1 and PW31 had conspired to eliminate her. The said suggestion given to PW33 is contrary to the suggestion given to PW23. As such, an adverse inference can be drawn against the accused.

131. In the judgment titled as " Sharad Birdhichand Sarda Vs. Page no..... 61/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar State of Maharastra", reported in AIR 1984 SC 1622, the Hon'ble Supreme Court held:

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;

2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3. The circumstances should be of conclusive nature and tendency;

4. They should exclude every possible hypothesis except the one to be proved; and

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

132. Applying the above principles of law to the present case, the prosecution has proved the identity of the accused; place, date and time of incident; and presence of the accused at the scene of crime on the given date and time. The accused has failed to justify his presence at the scene of crime. The accused had the motive to indulge into such an incident and inflict injuries on the deceased. It Page no..... 62/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar is also proved that the accused carried weapon of offence and used the same against the deceased. Thereafter, he tried to run away from the spot but was caught red handed with weapon of offence.

133. Further, admittedly, the deceased succumbed to the injuries. As per postmortem report Ex.PW6/A, the injuries sustained by the deceased were ante­mortem in nature. Injuries no.1 to 5 were caused by sharp cutting edged weapon. Injury no.6 was caused by blunt object. Cause of death was hemorrhagic shock consequent upon injury on neck vessel. The mode of death was homicidal. As per opinion Ex.PW6/C, the injury no.1 to 5 mentioned in the postmortem report were possible by the knife Ex. P1 and injury no.6 was possible by the hammer Ex. P2. Hence, it stands proved that the injury resulting into the death of the deceases was the result of the blow of the knife Ex.P­1. Forensic reports Ex. PW7/A and Ex. PW7/B prove the presence of blood of the deceased on the clothes of the accused

134. In view of the foregoing discussions, it can be held that there is a direct nexus between the accused, weapon of office, the injuries inflicted with those weapon and cause of death of the deceased. The postmortem report proved that cutting throat injury was sufficient to cause death in ordinary course of nature and proved to Page no..... 63/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar be fatal for her life. The accused was responsible for that injury.

135. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and forensic evidence. The prosecution witnesses have been able to build up a continuous link. Therefore, the prosecution has been able to prove the necessary intent and knowledge of the accused to commit the murder of the deceased pursuant to which the accused committed the murder of deceased . Consequently, the accused is held guilty u/s 302 IPC.

SECTION 354 IPC

136. In view of the testimony of PW1, PW30 & PW31 and medical evidence, it can be held that the prosecution has failed to prove that the accused made an attempt to outrage the modesty of the deceased. Hence, the accused is acquitted for the offence u/s 354 IPC.

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(Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar SECTION 307 IPC

137. PW­2 proved the MLC Ex. PW2/C of PW30. On local examination following injuries were observed:

1. One CLW around 3 cm on frontal region of sculp.

2. Two CLW of 2 cm x 3 cm on right temporal region.

3. Three CLW on right arm of 1 cm, 2 cm and 3 cm.

138. PW30 in her testimony specifically deposed that the accused gave three hammer blows on her head and one knife blow on her hand. PW30 admitted one suggestion that she told to the police that the accused hit her by both hammer and knife i.e. firstly hit by knife and thereafter hammer. No suggestion to the contrary was made. As such, PW30 described as to how she sustained the injuries. Her testimony remained consistent. The injuries sustained by her is corroborated with MLC Ex. PW2/C. The accused remained completely silent about the said injuries nor it is his case that those were self inflicted.

139. Regarding MLC of PW30 Ex. PW2/C, counsel for the accused pleaded that there is overwriting on the date of examination at point­Z where 12 is over written as 17. Admittedly, the incident took place in the intervening night of 16th ­17th January, 2008. Therefore, there was no occasion for PW30 to sustain those injuries on 12.01.2008. Further, in date and hour of arrival column, the date is Page no..... 65/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar mentioned as 17.01.2008 and time as 5.30 am. As such, the said overwriting is not fatal to the case of the prosecution.

140. Counsel for the accused also pleaded that PW2 failed to identify the signature at point­Y and Z on MLC Ex. PW2/C. Therefore, the said MLC is not reliable in nature. PW2 in his examination specifically identified the handwriting and signature of Dr. Sudhanshu Bansal at point­X in MLC Ex. PW2/C. At point­Z, nature of the injury was mentioned as simple. Therefore, vide the said MLC the prosecution proved the injuries sustained by PW30. Further, in cross­examination of PW2 the accused has not disputed the nature of the injury sustained by PW30. Hence, the said submissions are not sustainable in law.

141. In view of the foregoing discussions, it can be held that the injuries sustained by PW30 are attributable to the accused.

142. Now the question arises whether the accused did the acts with such intentional or knowledge and under such circumstances that, if they by that act caused death of PW30, they would be guilty of murder.

143. In law, for the purpose of constituting an attempt under section 307 IPC, there are two ingredients required, first an evil intent or knowledge, and secondly, an act done. This section makes Page no..... 66/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result was done with the intention or knowledge and under circumstances mentioned in the section. However, the nature of the weapon used, the intention expressed by the accused at the time of the act, the motive for commission of the offence, the nature and the size of the injuries, the parts of the body of the victim selected for causing the injuries and the severity of the blow or blows are important factors that may be taken into consideration in coming to a finding whether in a particular case the accused can be convicted of an attempt of murder.

144. In the present case, it is evident from the record that the accused had already committed the murder of the deceased before he inflicted injuries on the body of PW30; thereafter, he attempted to run away but he was firstly apprehended by PW30. Hence, if he had any intention to commit murder of PW30 then he would have inflicted the knife blow on the vital part of PW30 than her hand. Similarly, the hammer blow given on the head of the PW30 was not of much force to show his intention to commit murder of the deceased. Therefore, it is held that the prosecution has failed to prove the essential ingredients of section 307 IPC against the accused. The nature of injuries is simple. However, the essential ingredients of section 324 IPC against the accused stand proved. Page no..... 67/72

(Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar Therefore, the accused is held guilty u/s 324 IPC.

SECTION 458 IPC

145. In view of the foregoing discussions, it can be held that the accused committed lurking house tresspass by night having made preparation for causing hurt to the deceased and actually caused hurt not only to the deceased but also to PW­30. Therefore, the accused is held guilty u/s 458 IPC.

SECTION 27 OF ARMS ACT

146. In view of the foregoing discussions, it can be held that accused possessed the knife without requisite permission under the Arms Act and also used the same against the deceased and PW30. Therefore, the accused is held guilty under section 27 of Arms Act.

147. Accordingly, the accused is convicted for the offences under section 458/302/324 IPC. The accused is also convicted under section 27 of Arms Act.

Announced in the open court
            rd
 on this 23     day of February, 2016.
                                      
                                                            (Pankaj Gupta)
                                                            ASJ­II, North­West
                                                            Rohini: Delhi

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                                      (Judgment) State Vs  Pawan @ Mama
                                                            FIR no. 36/08
                                                       PS: Sarasvati Vihar

IN THE COURT OF SHRI PANKAJ GUPTA: ADDL. SESSIONS JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI Sessions Case No. 150/11 Unique Case ID: 02404R0377162008 State Vs Pawan @ Mama S/o Sh Ram Chander R/o H. no. 102 Negsen Nagar Jeri Pakta Nagpur,Maharastra.

Present Add: K­47, J.J. Colony,
Shakurpur, Delhi.                                          ...Accused



FIR No.            :      36/2008 
Police Station     :      Saraswati Vihar 
Under Section      :      302/459/354/307  IPC  

Date of committal to Sessions Court           :     05.05.2008
Date on which judgment reserved               :     23.02.2016
Date on which judgment pronounced             :     23.02.2016

ORDER ON SENTENCE 

27.02.2016

Present:­    Sh. A.B. Asthana, Ld. Addl. PP for the State.

             Convict produced from JC. 

             Ms.   Neelam   Singh     Advocate,  Amicus   Curiae  for   the 

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                                            (Judgment) State Vs  Pawan @ Mama
                                                                     FIR no. 36/08
                                                               PS: Sarasvati Vihar

convict. 

4. The convict is held guilty for the offences under section 458/302/324 IPC and is also convicted under section 27 of Arms Act.

5. Ld. Addl. PP for the State submitted that convict was the employee of uncle of the deceased Sh. Anish Kapoor for the last 10­12 years from the date of incident. All the family members were treating him as a member of the family. However, the convict breached the said faith of the family members of the deceased. The offence committed by the convict was grave in nature. As such, the convict does not deserve any leniency and maximum punishment may be awarded.

6. Ld. Counsel for the convict submitted that the convict has no previous criminal record. He is having old aged parents, wife and two minor children. He is sole bread earner of the family. Accordingly, minimum sentence may be awarded.

7. Keeping in view all the facts and circumstances of the Page no..... 70/72 (Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar case and the mitigating circumstances as mentioned above, the convict is sentenced to:­ "undergo rigorous imprisonment for life and fine of Rs. 30,000/­ is imposed, in default of payment of fine, to undergo SI for 06 months for the offence punishable u/s 302 IPC."

"undergo rigorous imprisonment for a period of 5 years and fine of Rs. 10,000/­ is imposed, in default of payment of fine, to undergo SI for 03 months for the offence punishable u/s 458 IPC."

"undergo rigorous imprisonment for a period of 2 years and 06 months and fine of Rs. 5,000/­ is imposed, in default of payment of fine, to undergo SI for 01 months for the offence punishable u/s 324 IPC."

"undergo rigorous imprisonment for a period of 05 years and fine of Rs. 5,000/­ is imposed, in default of payment of fine, to undergo SI for 01 month for the offence u/s 27 Arms Act." Page no..... 71/72

(Judgment) State Vs Pawan @ Mama FIR no. 36/08 PS: Sarasvati Vihar

8. All the sentences shall run concurrently.

9. Benefit of section 428 Cr. PC be given to the convict.

10. Copy of this order and judgment be given to the convict free of cost.

11. File be consigned to Record Room.

Announced in the open court
            th
 on this 27     day of February, 2016.
                                      
                                                   (Pankaj Gupta)
                                                   ASJ­II, North­West
                                                   Rohini: Delhi




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