Delhi District Court
State vs Jatin Dhiman on 18 March, 2017
IN THE COURT OF SHRI KULDEEP NARAYAN : ADDITIONAL
SESSIONS JUDGE (PILOT COURT):WEST: TIS HAZARI COURTS:
DELHI.
SC No. 56917/16
FIR No. 243/12
U/s. 302/201 IPC
P.S Ranhola
In the matter of :
State
versus
Jatin Dhiman
S/o late Shri Vijay Dhiman
R/o H. No. 17, Gali No. 3,
Press Enclave, Vikas Nagar, Delhi
Date of Institution : 04.01.2013
Date of reserving Judgment : 07.03.2017
Date of pronouncement : 18.03.2017
Appearances
For the State : Ms. Reeta Sharma, Additional Public
Prosecutor.
For the Accused : Shri Dhirendra Singh, Advocate, the Amicus
Curiae.
JUDGMENT
Accused Jatin Dhiman son of late Sh. Vijay Dhiman, aged 19 years was sent up for trial on the basis of report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) submitted on 04.01.2013 Sessions Case No. 56917/16 Page 1/26 upon conclusion of investigation into First Information Report (FIR) no. 243/2012 of police station (PS) Ranholla for offences punishable under Sections 302/201 of the Indian Panel Code, 1860 (IPC).
2. As per the prosecution story, vide DD No. 19-A dated 10.10.2012, accused Jatin Dhiman came to the PS-Ranholla and got his statement recorded by W/HC Anita Kumari to the effect that on 07.10.2012 around 12.00 Midnight he was present with his father at his house no. 17, Gali No. 3, Press Enclave, Vikas Nagar, Delhi. His father was drunk and had beaten him ("Mar-Peet ki") which was not liked by him. Further, after the death of his mother, the behavior of his father was not good. Being fed-up with the ill-treatment by his father, he killed him by strangulation ("Pitaji ki Harkato Se Tang Aakar Apne Pitaji ko Gala Daba Kar Maar Diya") and was planning to dispose off the dead body. However, due to increasing foul smell coming out of dead body, he sprinkled kerosene oil on the dead body of his father and put it on fire. Now, he repented his act and therefore had come to police station to inform it.
3. The aforementioned statement of accused was brought to the notice of Inspector Manoj Kumar who alongwith the accused and Ct. Jai Singh, No. 1701/W and HC Wazir, No. 390/12 proceeded to the Scene of Crime i.e. House No. 17, Gali No. 3, Press Enclave, Vikas Nagar, Delhi in official vehicle. SI Ram Bhau was already present at the Scene of Crime, who informed Inspector Manoj Kumar that today i.e. on 10.10.2012 at about 3.20 AM, vide DD No.7-A, he inspected the aforesaid house which was a single storey house built on 100 sq. yards plot. The main door of the house was locked from inside whereas the back door was open. Smock was emitting out of the house. After entering from its back gate, in one room Sofa and Deewan were found burning. Near the Deewan one man was lying on the floor and his clothes and body was burning. Fire Brigade and Crime Team was also Sessions Case No. 56917/16 Page 2/26 called at the spot, the spot was inspected and photographed. During investigation, the name of the deceased came to be known as Vijay Dhiman. The dead body was sent to the Mortuary of Sanjay Gandhi Hospital. Thereafter SI Ram Bhau handed the investigation related papers to Inspector Manoj Kumar, who got the FIR No. 243/2012, U/S 302/201 IPC registered through constable Jai Singh. The IO prepared site plan and seized one plastic can with Kerosene oil. Half burnt clothes from beneath the dead body were also seized. Plastic can and half burnt clothes were seized in one cloth pullanda which was sealed with the seal of MK. Accused Jatin Dhiman was arrested and his disclosure statement was recorded. One grocery shopkeeper namely Vijay Kumar Jha S/o Sh. Rameshwar Jha was interrogated who stated that on 09.10.2012 at around 9.30 PM accused Jatin Dhiman purchased around six liters of Kerosene oil in a plastic can and paid a sum of Rs. 340/-. Mr. Amit Sethi S/o Sh. Jagar Singh Sethi, neighbour of the deceased was also interrogated who stated that on 7.10.2012, at about 11.45 p.m, deceased Vijay Dhiman had come to his house and told that his son Jatin Dhiman was spending the amount of compensation of Rs.5.87 lacs lavishly which was received on the death of his wife. When deceased Vijay Dhiman confronted his son Jatin Dhiman on this, his son started quarrelling with him. Mr. Amit Sethi further stated that he went to the house of deceased Vijay Dhiman and asked both of them to pacify and sleep. Sh. Narender Singh S/o late Sh. Uday Singh was also interrogated who stated that he had an electrical shop at the corner of gali no.3 where the deceased Vijay Dhiman used to visit frequently and sit there for hours, but since the evening of 7.10.2012, he had not come.
4. After the postmortem on 11.10.2012, the doctor of Sanjay Gandhi Memorial (SGM) Hospital handed over I.O. three teeth of deceased in a plastic box sealed with the seal of SGMH Mortuary. The doctor could Sessions Case No. 56917/16 Page 3/26 not give opinion regarding exact cause and time of death due to advance burning and charring of whole body. I.O also got the spot inspected by Delhi Fire Service on 30.10.2012. Scaled site plan of the spot was also got prepared by Drafts man SI Mahesh Kumar. I.O sent the plastic can containing kerosene oil, half burnt clothes and teeth of the deceased to FSL Rohini on 7.12.2012 for expert opinion. Date of birth of accused Jatin Dhiman was also verified by the I.O and as per date of birth certificate obtained from Columbia Foundation Sr. Sec. School, Vikas Puri, his date of birth is 5.7.1993.
5. After concluding the investigation, the I.O came to a conclusion that sufficient evidence were collected against the accused qua commission of offences under Section 302/201 IPC and thereafter prepared chargesheet and filed in the court.
6. On the basis of charge-sheet and the documents submitted with it, the learned Metropolitan Magistrate-10 (West) took cognizance of offences under Section 302/201 IPC and after complying with the provisions contained in Section 207 Cr.P.C, committed the case to the Court of Session vide order dated 05.01.2013.
7. Subsequently, the IO collected the bank statement of account no. 32196806701 of the accused for the period 01.01.2012 to 09.09.2015 from the State Bank of India, Ordinance Depot, Punjabi Bagh, Delhi and filed the same through supplementary chargesheet on 22.09.2015 stating that Smt. Chandrakanta, mother of the accused was a government employee who had been working at Ordinance Depot. She expired on 04.02.2012. Her gratuity amount in a sum of Rs. 5,39,372/- was credited on 03.07.2012 in the account of her son Jatin Dhiman, the accused, being her nominee. It is further stated that in a very short period, the accused spent maximum amount which was the reason for quarrel between accused and his father and consequently, the accused committed murder Sessions Case No. 56917/16 Page 4/26 his father namely Shri Vijay Dhiman in the intervening night of 7/8.10.2012 and also got his dead body burnt in the intervening night of 11/12.10.2012.
8. On 28.01.2013, after hearing the learned Additional Public Prosecutor for the State and the counsel for the accused, charge was framed against the accused for commission of offence punishable under Section 302/201 IPC. The charge so framed was read over and explained to the accused persons to which he pleaded not guilty and claimed trial.
9. To bring home the afore-mentioned charges to the accused , the prosecution got examined Sh. Vijay Kumar Jha (PW-1), Sh. Amit Sethi (PW-2), Sh. Vijender Kumar (PW-3), Sh. Viney Dhiman (PW-4), S.I Azad (PW-5), Sh. Narender (PW-6), Ct. Rajesh (PW-7), Inspector Mahesh Kumar (PW-8), Ct. Jai Singh (PW-9), Sh. Sunny(PW-10), Dr. Manoj Dhingra (PW-11), Ct. Manish (PW-12), Ct. Mandeep (PW-13), SI Ranbir (PW-14) and Woman H.C Anita (PW-15), S.I Ram Bhau (PW-16), Inspector Manoj Kumar (PW-17), H.C Vijender (PW-18), Sh. Pankaj Gupta (PW-19) and Inspector Surya Prakash (PW-20).
10. The prosecution also relied on documents tendered into evidence i.e report by Delhi Fire Service (Ex.PW-3/A), identification statement by Vinay Dhiman of dead body (Ex.PW-4/A), receipt of dead body (Ex.PW- 4/B), crime team report (Ex.PW-5/A), negatives of the spot (Ex.PW-7/A- 1 to Ex.PW-7/A-8), photographs of the spot (Ex.PW-7/B1 to Ex.PW- 7/B8), scaled site plan (Ex.PW-8/A), seizure memo of plastic cane containing kerosene oil (Ex.PW-9/A), seizure memo of burnt clothes clothes of deceased (Ex.PW-9/B), seizure memo of plastic box containing teeth of the deceased(Ex.PW-9/C), arrest memo of Jatin Dhiman (Ex.PW-9/D), personal search memo of accused Jatin Dhiman (Ex.PW-9/E), disclouser statement of accused Jatin Dhiman (Ex.PW- 9/F), pointing out memo by accused Jatin Dhiman (Ex.PW-9/G), taking Sessions Case No. 56917/16 Page 5/26 over memo of seal MK (Ex.PW-9/H), handing over memo of seal MK (Ex.PW-9/I), postmortem report (Ex.PW-11/A), entry in roznamcha against DD entry no. 7A dated 10.10.2012 PS Ranhola (Ex.PW-14/A), DD entry no. 7A dated 10.10.2012 PS Ranhola (Ex.PW-14/B), DD No. 19A dated 10.10.2012 PS Ranhola (Ex.PW-15/A), computer generated copy of FIR (Ex.PW-15/B), certificate U/s 65-B of Indian Evidence Act (Ex.PW-15/C), endorsement on DD entry no. 19A(Ex.PW-17/A), site plan (Ex.PW-17/B), identification statement of dead body by Girdhari Lal (Ex.PW-17/C), identification statement of dead body by Shri Ashok Dhiman(Ex.PW-17/D), death report (Ex.PW-17/F), birth certificate of accused from Columbia Foundation Certificate(Ex.PW-17/G), entry made in register no.19 regarding deposit of a plastic container of kerosene oil (Ex.PW-18/A(OSR), entry made in register no. 19 regarding deposit of teeth of deceased (Ex.PW-18/B), copy of record of RC No. 205/12/12 dated 10.10.2012 (Ex.PW-18/C), copy of record of RC No. 206/21/12 dated 10.10.2012 (Ex.PW-18/D), computer generated statement of account no.32196806701 w.e.f 01.01.2012 to 02.03.2012 (Ex.PW-19/A) and certificate U/s 65 B of Indian Evidence Act (Ex.PW- 19/B).
11. On 02.12.2016, statement of accused under Section 313 Cr.P.C was recorded wherein he denied the correctness of all the incriminating circumstances appearing in the evidence against him and stated that he was falsely implicated in the present case. On the day of incident he was not present at his house and had gone to his maternal aunt (massi). His father (deceased Vijay Dhiman) was alone at home. The accused desired to lead evidence in his defence, but did not lead any evidence despite ample opportunities. Vide order date 06.1.2017 as per separate statement of the counsel, the defence evidence was closed.
12. I heard the arguments advanced by Ms. Reeta Sharma, Ld. Addl.
Sessions Case No. 56917/16 Page 6/26PP for the State and Shri Dhirendra Singh, Ld. Amicus Curiae for the accused. I have also perused the entire material available on record.
13. During the course of arguments, it was submitted by the Ld. Addl. PP for the State that the present case is based on circumstantial evidence and despite there being no medical opinion about the cause of death, the homicide can be inferred from the circumstances. Further, in the attending circumstances, the conduct of the accused assumes significance more so in view of the last scene evidence as per the testimony of PW-2. It was further submitted that the postmortem report (Ex.PW-11/A) clearly indicates that the dead body was burnt after the death was caused and due to complete charring of the dead body, no cause of death could be opined by PW-11. Even otherwise, PW-11 was not cross-examined at all by the counsel for the accused. Ld.Addl. PP further argued that PW-17, IO of the case was not asked to offer any explanation regarding the cause of death mentioned in death report (Ex.PW-17/F) otherwise he would have offered some plausible explanation. The prosecution relied upon testimony of PW-1 and PW-2 to indicate the circumstances to connect the accused with the commission of offence. With regard to requirement of Section 65-B of the Indian Evidence Act,1872 (the Evidence Act) it was argued by the Ld. Addl. PP for the State that if the computer is used as typewriter without feeding any data therein, such computer output does not require any certificate under Section 65-B of the Evidence Act as there is no storage of any information in the computer in those circumstances and accordingly, the site plan (Ex.PW-17/B) and FIR (Ex.PW-15/B) was not required to be supported with any certificate under Section 65-B of the Evidence Act. Similarly, the computer generated copy of birth certificate (Ex.PW-17/G) was only for the purpose of age verification and was not in the category of evidence in the present case. Lastly, it was argued by Sessions Case No. 56917/16 Page 7/26 the Ld. Addl. PP for the State that the accused miserably failed to prove the plea of alibi taken by him to exculpate him and, therefore, on analysis of all the testimonies of prosecution witnesses and the documents tendered into evidence, the prosecution succeeded in brining home the charge under Section 302 and Section 201 IPC to the accused beyond all reasonable doubts.
14. Per contra, counsel for the accused submitted that the prosecution failed to establish if the death of the deceased was homicidal or accidental or suicidal as neither the cause of death nor the time since death could be ascertained. Further, though the prosecution alleged that the accused poured kerosene oil on the dead body of deceased, the presence of kerosene oil was neither mentioned in postmortem report (Ex.PW-11/A) or in death report (Ex.PW-17/F). The noting of strangulation in death report (Ex.PW-17/F) was not explained by the prosecution. It was further argued that the father and brother of the deceased who identified his dead body were not examined nor the location of the accused who was using mobile phone was ascertained by the IO to show the presence of the accused at the scene of crime. The prosecution version that the accused had visited the police station at 12 noon to confess about the crime was not plausible as the IO did not enquire from him about procuring of kerosene oil at the time of registration of FIR. Even otherwise, the confessional statement of the accused is not admissible in evidence. Lastly, it was argued that while investigating the IO did not follow the Punjab Police Rules pertaining to maintenance of case diary and seizure of various articles, which raises doubt on the entire prosecution story, entitling the accused to be given benefit of doubt to secure acquittal.
15. I have given my thoughtful consideration to the submissions of both sides.
Sessions Case No. 56917/16 Page 8/2616. The substantive offences which the accused persons have been charged with are referred as under:
299. Culpable homicide - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
300. Murder - Except in the case hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
Secondly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or -
Thirdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
Fourthly. - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
201. Causing disappearance of evidence of offence, or giving false information to screen offender - Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of Sessions Case No. 56917/16 Page 9/26 screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false;
if a capital offence. - shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years , and shall also be liable to fine;
17. In view of the above-mentioned provisions of law and the submissions advanced on both sides, following points for determination are emerging in the present case.
1. Whether the dead body found in burnt condition in one room in the H. No. 17 gali No.3 Press Enclave, Vikas Nagar, Delhi on the intervening night of 9/10.10.2012 was of Shri Vijay Dhiman, father of the accused?
2. Whether the death of the deceased was homicidal and not accidental or suicidal?
3. Whether the deceased died due to fire or the dead body of the deceased was set on fire?
4. What was the cause of death of the deceased?
5. Whether there was a quarrel between the accused and the deceased in the intervening night of 7/8.10.2012 over extravagant and lavish lifestyle of the accused?
6. Whether the accused caused the death of the deceased intentionally?
7. Whether the accused set the dead body of the deceased on fire by pouring kerosene oil on it in Sessions Case No. 56917/16 Page 10/26 order to cause the evidence disappear to screen himself from legal punishment?
8. Whether the accused was not present at the scene of crime on the day of incident as he had gone to the house of his maternal aunt (Mausi)?
18. The prosecution case is based on circumstantial evidence and, therefore, motive for commission of offences also assumes significance. To establish its case beyond all reasonable doubts, the prosecution case mainly rests upon the testimonies of PW-1, PW-2, PW-6, PW-11, PW-16, PW-17 and PW-19.
19. As per the testimony of Shri Amit Sethi (PW-2), he would know the deceased and his family for the last 10 to 12 years being the only two Punjabi families in the same gali. On 07.10.2012, the deceased had met with him as it was his birthday. The deceased had informed him that after the death of his wife who was in government job, the amount of compensation was directly transferred in the account of accused being her nominee. The accused would spent the afore-said amount lavishly. PW-2 further deposed that on the same evening in the late night at about 12/01 a.m in the night, the deceased came to him to complain that the accused was fighting with him on his asking about the details of the expenditure and his bank account. PW-2 thereafter accompanied the deceased to his house and tried to make the deceased and the accused understand to behave properly and not to fight in view of their respect in the gali (lane) as the deceased was also Pradhan (president) of the Welfare Association. After asking both of them to part away and sleep in separate room, PW-2 returned to his home.
On the next evening on 08.10.2012, when PW-2 was strolling after dinner, the accused was noticed by him walking in the lane. PW-2 enquired about his father (deceased) to which the accused replied that he Sessions Case No. 56917/16 Page 11/26 had left for out station in the early morning. PW-2 had not seen the deceased and on 09.10.2012 during the midnight, he came to know about the fire at the house of the deceased.
In his cross-examination, PW-2 stated to have seen the accused on 09.10.2012 but could not say if he had seen him in the morning or in the evening. As per his deposition, in the intervening night of 9/10.10.2012 when the police came, the accused was not present. PW-2 remained present at the scene of crime throughout the night. The accused was called at the spot telephonically and he reached at about 4 a.m. The testimony of PW-2 regarding a quarrel taking place between the accused and the deceased on 07.10.2012 past midnight and the deceased having been seen in the company of the accused lastly, could not be controverted in his cross-examination.
20. Shri Vijay Kumar Jha (PW-1) was running a grocery shop/general store in the name and style of Manish General Store at the ground floor of his house No. 15-B, Gali No. 4, Phase-III Vikas Nagar, Delhi-59. PW- 1 knew the accused as he used to purchase the daily need items from him. As per the testimony of PW-1, on 09.10.2012 around 9-10 p.m accused had come to him to purchase kerosene oil and PW-1 had given him one plastic can containing approximately 5-6 liters kerosene oil. PW-1 also charged a sum of Rs. 300-350/- for the same. PW-1 also identified the plastic can (Ex.P-1) containing a little bit kerosene oil in it which was sold by him to the accused.
In his cross-examination, PW-1 admitted that he was not a seller of the kerosene oil and the accused had never purchased kerosene oil from him prior to 9.10.2012. PW-1 also stated about the existence of number of grocery shop in between of his shop and house of the accused.
21. Shri Narender (PW-6), who used to run a shop of electric times at gali No. 3, Press Enclave Vikas Nagar, New Delhi knew the deceased for Sessions Case No. 56917/16 Page 12/26 the last about 20 years as the deceased used to visit his shop frequently and used to sit there for hours. PW-6 also deposed that he had not seen the deceased on 08.10.2012 and 09.10.2012 as he had not come to his shop. Further, PW-6 stated that the deceased used to reside in his house alongwith his son Jatin Dhiman, the accused.
In his cross-examination PW-6 stated that the maternal aunt of the accused seldom used to visit the house of the deceased. He could not say if after the death of his mother, the accused started residing with his maternal Aunt namely, Shashi Sharma.
22. SI Ram Bhau (PW-16) was on petrolling duty in gali no. 3 Press Enclave near Balaji Chowk, Uttam Nagar, Delhi on the intervening night of 9/10.10.2012 when he observed smoke coming out of H. No. 17. Since the main gate of the said house was locked, PW-16 entered into the house from its rear gate and saw that T.V, Sofa and other articles placed in the room were burning. One dead body in burnt condition was also lying there. PW-16 also made a call at 100 number and informed the fire brigade. He also deposed about the staff of fire brigade, staff of police station and crime team members reaching at the spot. The photograph of the spot from different angles were also taken and the dead body was sent to mortuary of Sanjay Gandhi Memorial Hospital. As per testimony of PW-16, Inspector Manoj Kumar alongwith Constable Jai Singh and the accused also reached at the spot. The crime team report and other documents were handed over to Inspector Manoj Kumar who then prepared a rukka and handed it over to constable Jai Singh for getting the case registered. Constable Jai singh returned at the spot with rukka and copy of FIR to hand it over to Inspector Manoj Kumar. PW-16 further deposed about seizure of plastic container with about 1 ½ liter of kerosene oil and the half burnt clothes of the deceased.
PW-16 sustained his testimony in his cross-examination and no Sessions Case No. 56917/16 Page 13/26 material contradiction could be brought forth by the counsel for the accused in his cross-examination. PW-16 also deposed about the enquiry made from one Narender about the house of the deceased. He also specified about the position of dead body with its legs towards the gate of the room and its head towards the wall. PW-16 also deposed about the presence of smell of kerosene oil in the room where the dead body was lying in burnt condition. He had also filled up form no. 25.35.
23. Inspector Manoj Kumar (PW-17) the investigating officer deposed about the accused arriving at the police station on 10.10.2012 to confess his guilt and the duty officer HC Anita Kumari (PW-15) making an entry in roznamcha against DD No. 19 A (Ex.PW-15/A) in this regard consequent upon which PW-17 alongwith accused, constable Jai Singh and HC Wazir (driver) proceeded to the scene of crime i.e. H. No. 17, gali No. 3, Press Enclave, Vikas Nagar, Delhi. At the spot, PW-17 met with SI Ram Bhau (PW-16) who informed him that he had got the spot inspected through the crime team members and shifted the dead body to the mortuary of SGM hospital. PW-17 further deposed about endorsement on the copy of DD No. 19 (Ex.PW-17/A), preparation of rukka and site plan (Ex.PW-17/B). A photographer namely, Sunny (PW-
10) was also called on the spot who took five photographs Ex.PW-8/A1, Ex.PW-10/A1 to Ex.PW-10/A4. As per the testimony of PW-17, the accused led to the Kiryana shop i.e. shop no. 15 b Vikas Nagar, from where he purchased the kerosene oil from shopkeeper namely Vijay Kumar Jha (PW-1), who also identified the accused to be the person who purchased about 6 liter of kerosene oil in a plastic container and paying Rs. 340/- for the same. PW-17 also interrogated Shri Amit Sethi (PW-2) and Shri Narender Singh (PW-6). During the course of investigation, PW-17 seized the plastic container, half burnt clothes of the deceased, arrested the accused vide memo (Ex.PW-9/D), conducted his personal Sessions Case No. 56917/16 Page 14/26 search vide memo (Ex.PW-9/E) and prepared the pointing out memo (Ex.PW-9/G). PW-17 also recorded the statements of incharge crime team, photographer, SO/Fire Brigade, Jwala Puri, constable Jai Singh and SI Ram Bhau and completed the other formalities of the investigation. He also collected the bank statement of accused for the period 01.01.2012 to 09.09.2015 from the State Bank of India, Ordinance Depot, Shakur Basti, Delhi.
In his cross-examination, PW-17 reiterated about the arrival of the accused at the police station on 10.10.2012 at about 12.30 p.m. He also deposed about the presence of smell of kerosene oil in the room where the dead body was lying in burnt condition as well as smell coming out from the half burnt clothes of the deceased seized by him. He further stated that he did not make any query from Vijay Kumar Jha (PW-1) if he was having any license for selling kerosene oil or not. Shri Vijay Kumar Jha (PW-1) had shown him the kerosene drum of capacity of about 20 liters but this fact was not recorded in his case diary. Admittedly, PW-17 did not obtain second opinion from any other expert about the cause of death as the same was not mentioned in the postmortem report. He also did not obtain the call details and location of the mobile phone carried by the accused.
24. Shri Pankaj Gupta (PW-19) Branch Manager, SBI produced the statement of account of account no.32196806701 belonging to the accused for the period 01.01.2012 to 02.03.2016 (Ex.PW-19/A). He was cross-examined on the aspect of certificate under Section 65 B of the Indian Evidence Act (Ex.PW-19/B). A perusal of statement of account (Ex.PW-19/A) reveals that a sum of Rs.5,39,372/- (which was stated to be the service benefits/ compensation amount of the mother of the accused) was credited on 03.07.2012 in the account of the accused and within the month of July, 2012 itself a sum of more than 3 lac rupees was Sessions Case No. 56917/16 Page 15/26 withdrawn from the said account.
25. As far as the other set of prosecution witness is concerned, Shri Vijender Kumar (PW-3) who was posted as sub-officer at Jwala Puri Fire station on 10.10.2012, had reached at H. No. 17 gali No. 3., Press Enclave, Vikas Nagar Delhi on receiving an information at about 3.25 a.m regarding fire with one fire brigade under his supervision. A room was found under fire and flames were doused. He also stated that a body was also lying there in the room and there was presence of smell of kerosene oil also. PW-3 also proved his report Ex.PW-3/A in this regard.
26. Shri Vinay Dhiman (PW-4) identified the dead body of his brother namely, Vijay Dhiman vide identification statement (Ex.PW-4/A) and received the dead body after postmortem vide receipt Ex.PW-4/B.
27. SI Azad (PW-5) , mobile crime team incharge had also reached at the scene of crime and prepared the inspection report (Ex.PW-5/A).
28. Constable Rajesh (PW-7) had taken the photograph of the dead body (Ex.PW-7/A1 to Ex.PW-7/A8) as well as of the spot from different angles.
29. Inspector Mahesh Kumar (PW-8) prepared the scaled site plan (Ex.PW-8/A) on 30.11.2012 at the instance of Inspector Manoj Kumar, IO of the case.
30. Constable Jai Singh (PW-9) participated in the investigation and remained present with IO Inspector Manoj Kumar. He deposed about taking the rukka to the police station for registration of FIR and after registration of FIR coming back to the spot with copy of the FIR and original rukka. He had also witnessed the seizure memo Ex.PW-9/C to Ex. PW-9/G. No substantial point could be extracted out of his testimony by cross-examination by the counsel for the accused.
31. Shri Sunny (PW-10) also deposed about taking five photographs Sessions Case No. 56917/16 Page 16/26 Ex.PW-8/A1 and Ex.PW-10A1 to Ex.PW-10/A4.
32. Constable Manish (PW-12) deposed about depositing pulanda sealed with seal of 'MK' in DNA Profiling Branch, FSL, Rohini vide RC no. 205/21 and 206/21. He also stated that during the period the pulanda remained with him, the seal were not tampered.
33. Constable Mandeep Kumar (PW-13) had delivered the copy of FIR at the house of learned Metropolitan Magistrate and senior police officers.
34. SI Rambir (PW-14) made an entry in roznamcha regarding fire vide DD No. 7 A (Ex.PW-14/A).
35. W/HC Anita (PW-15) had made an entry in roznamcha against DD No. 19 A (Ex.PW-15/A) regarding the accused coming to the police station and confessing his guilt. She also got the FIR (Ex.PW-15/B) registered on the basis of rukka sent by Inspector Manoj Kumar. She had also signed on certificate under Section 65-B of the Evidence Act (Ex.PW-15/C).
36. Inspector Surya Prakash (PW-20) deposed about HC Mahender who was sent to the house of sister of deceased namely, Ranjana wife of Shri S.K Gupta to obtain her blood sample for conducting DNA test. He stated that HC Mahender had returned at police station alongwith the MLC no. 15556/15 and one sealed envelop containing the blood sample of Smt. Ranjana which was got deposited at FSL Rohini, Delhi on 05.10.2015 through constable Sajjan vide RC No. 172/21/15.
37. Dr. Manoj Dhingra (PW-11) conducted the postmortem on the dead body of deceased alongwith Dr. Vivek Rawat. He proved the postmortem report (Ex.PW-10/A). He also opined that the dead body had deep thermal burns with charring of body tissues, which were seen all over the body with loss of muscle and bone tissue over neck and front of upper half of the chest. The external morphological features of the body Sessions Case No. 56917/16 Page 17/26 have been all lost due to excessive burning and charring of the body. Time since death could not be ascertained due to advance burning and charring of the body and the cause of death was opined to be advance burning and charring of whole body. PW-11 was not cross-examined by the counsel for the accused.
38. After analysis of the testimonies of all the afore-mentioned prosecution witnesses and the documents tendered into evidence, it is clear that the dead body found in burnt condition in one room of H. No. 17 gali no. 3 Press Enclave, Vikas Nagar, Delhi was of Shri Vijay Dhiman (deceased) father of the accused, which was duly identified by his brother Shri Vinay Dhiman (PW-4) vide identification statement (Ex.PW-4/A). The death of the deceased Vijay Dhiman, father of the accused cannot be termed as an accidental or suicidal one. The death was evidently homicidal. The dead body of the deceased Vijay Dhiman was found inside a room in his house which rule out the possibility of any road traffic accident. There is nil evidence to suggest the aspect of suicide by putting oneself on fire after pouring kerosene oil as not a single prosecution witnesses deposed about any sign of struggle at the scene of crime, which indicates or rather corroborates the version of the prosecution of setting a dead body on fire.
39. To further corroborate the prosecution story, PW-1 deposed about selling the kerosene oil to the accused on 09.10.2012, who identified the plastic can (Ex.P-1) whereby about 6 liters kerosene oil was sold to the accused for a sum of Rs. 350/-. As per the postmortem report (Ex.PW- 11/A), the postmortem changes i.e. Hypostasis, Rigor Mortis and Decomposition changes could not be ascertained due to charring of the body, the external morphological feature of the body have been all lost due to excessive burning and charring of the body. No external injury other than burn injury could be observed due to excessive burning and Sessions Case No. 56917/16 Page 18/26 charring of the body. As per internal examination, all the internal organs were charred and accordingly, the time since death and exact cause of death could not be given due to advanced burning and charring of the whole body. The postmortem report (Ex.PW-11/A) shows the extent of burning and charring of the dead body of the deceased which further corroborate the fact that the dead body was set on fire, which again exclude the possibility of deceased getting burned accidentally or while committing suicide. The argument advanced by the counsel for the accused that in postmortem report (Ex.PW-11/A) no smell of any inflammable substance could be deducted, which negate the prosecution version of setting a dead body on fire by means of kerosene oil, is not meritorious in view of the fact that the dead body was completely burned and charred which leave no room for any smell of inflammable substance like kerosene oil to remain present. Even otherwise, PW-3, PW-16 and PW-17 categorically deposed about the presence of kerosene oil in the room where the dead body of the deceased was found in completely burnt condition.
40. As per the testimony of PW-2, who had seen the deceased lastly with the accused on the intervening night of 7/8.10.2012, there was a quarrel between the accused and the deceased and on the next evening i.e. on 08.10.2012 when the accused was asked about his father, he informed PW-2 that he had left for out station. PW-6 also stated to have not met with the deceased on 08.10.2012 and 09.10.2012. PW-6 also deposed that only the accused and the deceased used to reside in the house after the death of wife of the deceased. Both PW-2 and PW-6 were examined by the prosecution to strengthen the "last seen together"
theory to point out towards the culpability of the accused.
41. It was held in Bodhraj V. State of J&K (2002) 8SCC45 that the last scene theory comes into play where the time gap between the point Sessions Case No. 56917/16 Page 19/26 of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. The ratio pertaining to "last seen together" theory was reiterated in a recent judgment dated 12.05.2016 passed by the Hon'ble Supreme Court in criminal appeal no. 462 of 2016 titled as Rambraksh @ Jalim V. State of Chhatisgarh.
42. Since the testimony of PW-2 with respect to seeing the deceased lastly with the accused on the intervening night of 7/8.10.2012 to pacify the quarrel between them and on the next evening i.e. on 08.10.2012, the accused informing PW-2 that his father had left for out station, remained un-shattered, the "last seen together" circumstance becomes a stronger one against the accused. This circumstance is further strengthened by the conduct of the accused in furnishing a wrong information to PW-2. The time gap when the PW-2 had seen the deceased with the accused on the intervening night of 7/8.10.2012 and when the accused misinformed him on the next evening i.e. 08.10.2012 is a minimal one. It is pertinent to note that as per the prosecution version, the accused caused the death of the deceased on the intervening night of 7/8.10.2012, that is to say, immediately following quarrel between accused and the deceased and after PW-2 left for his home after pacifying both of them.
43. The present case of the prosecution is based on the circumstantial evidence and accordingly, motive for commission for crime has a role to play in it. As observed earlier, PW-19 produced the statement of account no. 32196806701 belonging to the accused for the period 01.01.2012 to 02.03.2016 (Ex.PW-19/A), which shows credit of a sum of Rs. 539372/- on 03.07.2012 and within the month of July, 2012, a sum of more than Rs. 3 lacs was withdrawn by the accused. As per the testimony of PW-2, accused was indulging in lavish expenditure, which was the main cause Sessions Case No. 56917/16 Page 20/26 of quarrel between the accused and the deceased. On the intervening night of 7/8.10.2012 also the deceased had told PW-2 that the accused was quarrelling with him when he asked about the details of expenditure and the bank account. The transaction shown in statement of account (Ex.PW-19/A) are sufficient to infer that accused was indeed leading a lavish life full of extravagance. The accused did not offer any plausible explanation in this regard in his statement recorded under Section 313 Cr.P.C and, therefore, the motive for quarrelling with his father (deceased) and ultimately causing his death can be clearly attributed to the accused.
44. At the time of recording of his statement under Section 313 Cr.P.C, the accused raised a plea of alibi in stating that on the fateful night his father was all alone in the house and the accused himself was at the house of his maternal aunt (mausi). The accused also desired to lead evidence in his defence, however, not a single evidence could be led by the accused to establish his afore-said plea and, therefore, the plea of alibi taken by the accused could not be proved.
45. As far as the discrepancies pointed out by the counsel for the accused in the testimonies of the prosecution witnesses and the infirmities in carrying out the investigation are concerned, suffice it to say that as per the settled propositions of law on the subject, minor discrepancies not going to the root of the case, do not affect and are not fatal to the prosecution's case. Hon'ble Supreme Court in Bharwada Bhoginbhai Hirjibhai V. State of Gujarat (AIR 1983 SC 753) considered the defence argument about discrepancies in the evidence and observed as under:
"5............Over much importance cannot be attached to minor discrepancies. The reasons are obvious:Sessions Case No. 56917/16 Page 21/26
(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(2) ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental facilities therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment 1.1 at the time of interrogation. And one cannot expect people to make very precise or reliable estimate in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to Sessions Case No. 56917/16 Page 22/26 recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-
conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him- Perhaps it is a sort of a psychological defence mechanism activated on the spur of moment".
Therefore, the arguments advanced on behalf of counsel for the accused regarding the arrival of the accused at the spot with Inspector Manoj Kumar (PW-17) as deposed by PW-16, who firstly noticed the smoke coming out of the house and who had called the fire brigade and staff from police station and crime team whereas PW-17 deposed about arrival of the accused at the police station at about 12.30 p.m on 10.10.2012 and he then proceeding to the spot alongwith the accused, is not fatal to the prosecution's case specially in view of the fact that PW-16 was not asked to clarify in this regard. Similarly, the facts that PW-16 could not depose whether the broken lock which was placed on the gate of the house was seized or not, whether the bed in the room where the Sessions Case No. 56917/16 Page 23/26 dead body was found was a double bed or a single bed and what other articles were lying in the said room are also not of much significance. PW-17 had filled up the form no. 25.35 (Ex.PW-17/F) wherein the apparent cause of death was shown to be by strangulation and fire. The counsel for the accused failed to elicit any explanation from PW-17 as to why and how the fact of strangulation was mentioned in Ex.PW-17/F. In the given circumstances, it appears that had he been asked to explain the afore-said fact, the possible explanation would have been as stated by the accused himself to the IO when he arrived at the police station to repent his act. The other objections pertaining to the certificate under Section 65-B of the Evidence Act, non-mentioning of minute details in the case diary and not obtaining the mobile location of the accused are of no help to the accused in the presence of other clinching evidence pointing out towards the involvement of the accused in the commission of the alleged offences. The fact that the time since death and the cause of death could not be opined in the postmortem report (Ex.PW-11/A) is also of not much importance as the reason given in the postmortem report (Ex.PW- 11/A) in this regard are self explanatory.
46. It is trite law that in the contextual facts constituting circumstantial evidence, in judging the culpability of an accused, the circumstances adduced when collectively considered must lead to the only irresistible conclusion that the accused alone is the perpetrator of a crime in question and the circumstances established must be of a conclusive nature consistent only with the hypothesis of the guilt of the accused (reliance place on Sujit Biswas V. State of Assam (2013) 12 SCC 406).
47. In view of the above-discussed facts and circumstance, in my considered opinion, the prosecution successfully established the circumstances i.e. the dead body of the deceased was found in a room in H. No. 17 gali No.3, Press Enclave, Vikas Nagar, Delhi on the Sessions Case No. 56917/16 Page 24/26 intervening night of 9/10.10.2012, the dead body of the deceased was completely burnt, there was presence of smell of kerosene oil in the room where the dead body was lying as well as in the seized clothes of the deceased. The prosecution also proved the circumstances of accused quarrelling with the deceased in the intervening night of 7/8.10.2012, the deceased seen lastly with the accused, the accused having purchased kerosene oil from PW-1 in a plastic can which was seized from the scene of crime, the conduct of the accused in mis-informing PW-2 about his father leaving for out station and the conduct of the accused in coming to the police station on his own on 10.10.2012. Therefore, the prosecution succeeded in establishing that the death of the deceased was homicidal and it was the accused and the accused only who caused the death of the deceased. The prosecution also established beyond reasonable doubt that the accused poured the kerosene oil on the dead body of the deceased and set it on fire in order to cause the evidence disappear to shield himself from the legal punishment. The prosecution successfully completed the chain of evidence to prove that there was a quarrel between the accused and his father (deceased) on the fateful night when the deceased objected to extravagant and lavish lifestyle of the accused and consequently the accused intentionally caused the death of the deceased in the room of his house and after 2 days when the foul smell started emitting out of the dead body, which could not be disposed off so far, the accused purchased the kerosene oil from the nearby shop and after sprinkling the kerosene oil on the dead body set it on fire in order to cause the evidence of his ill deed disappear and left from the spot after locking the house from outside. In view of the categorical deposition by the prosecution witnesses specially, PW-1, PW-2, PW-6, PW-11, PW-16, PW-17 and PW-19, the chain of evidence is so complete as not to leave any reasonable ground for the conclusion consistent with the innocence Sessions Case No. 56917/16 Page 25/26 of the accused. All the circumstance point out towards the accused only, who committed the offences alleged. All the afore-mentioned points for determination are accordingly, decided in favour of the prosecution and against the accused.
48. I accordingly, hold the accused Jatin Dhiman son of late Shri Vijay Dhiman guilty for the offences punishable under Section 302 and 201 IPC and convict him.
49. Let the convict be heard on quantum of sentence at 2 p.m. (Pronounced in the open Court (Kuldeep Narayan) on 18.03.2017). Additional Sessions Judge Pilot Court : West: THC Delhi Sessions Case No. 56917/16 Page 26/26