"Menopause" case, lower court verdict

8/10/2019 "Menopause" case, lower court verdict

1/25

IN THE COURT OF MS. MADHU JAIN,

ADDITIONAL SESSIONS JUDGE-01, NORTH, DELHI.

FIR No.: 240/2010PS: : Civil Lines

U/s: 376/302 IPC

S.C. No.: 40/2011

Case ID No.02401R0159372011

In the matter of:

State

Vs.

Achey Lal

S/o Bermadin

R/o Village Dharjai, P.S. Kuradhar,

Distt. Sultanpur, U.P.

Present Address:

Gali no. 12, Gopal Pur,

Timarpur, Delhi

Date of receiving in Sessions Court : 26.4.2011

Arguments Heard : 27.9.2011

Date of Judgment : 27.9.2011

JUDGEMENT

Case Of Prosecution:

1. On 31.12.2010 on receipt of DD no. 18, Inspector Rakesh Kumar

alongwith Constable Sudesh Kumar reached at the spot at L-11, Majnu Ka

Tila, Delhi and met SI Bhoopender Kumar, ASI Yashwant and Constable

S.C. No.: 40/2011 1/25


2/25

Sudhir Kumar who had apprehended the accused at the spot. On the ground

floor of house no. L-11, Majnu Ka Tila, dead body of a female aged about 60

years was lying on the floor which was covered upto breast with a blanket.

The dead body was naked from breast to its feet and one empty bottle of

Bonney Whisky was lying near the dead body. The other articles and utensils

of the house were also lying in scattered condition and one mobile phone

make Nokia was also lying at the side of head of dead body near the pillow.

One Ms. Manisha met the IO at spot and gave her statement that deceased

Sharda Devi who used to work as Maid servant in the nearby houses resides at

said house alongwith her husband. Deceased Sharda Devi had taken Rs. 20/-

from her mother yesterday and had asked her mother to call her for household

works as and when required. Therefore on 31.12.2010 at about 12.30 p.m. she

had come to the house of deceased to call the deceased Sharda Devi for

household works but when she reached at the house of deceased, she saw that

the door was partially opened. She knocked the door but no one responded.

She opened the door and called the deceased by Aunt- Aunt but the

deceased who was lying on the floor did not respond. The Kameez of

deceased was lifted up to its neck . She pulled down the same and called the

neighbours. At that time, accused who was under the influence of liquor was

standing outside the gate of room and was not allowing the public persons to

enter into the room by saying that deceased is like her mother and she is not

dead but is sleeping after consuming liquor. Thereafter public persons

apprehended the accused and called the police at 100 number. After

recording the statement of witnesses, IO got the case u/s 376/302 of IPC

registered at P.S. Civil Lines, sent the dead body to Subzi Mandi Mortuary for

S.C. No.: 40/2011 2/25


3/25

postmortem examination and arrested the accused. During the further

investigation of the case, scene of crime was got inspected through Crime

Team, site plan was prepared, exhibits were sent to FSL for expert opinion,

details regarding the ownership etc. of Nokia mobile phone recovered from

the spot were collected and after completion of investigation, challan U/s

376/302 IPC was filed against the accused in the court.

2. Since the offences U/s 376/ 302 of IPC are exclusively triable by

the court of sessions, therefore, after supply of the documents, Ld. MM

committed the case to the court of Sessions.

Charge Against The Accused:-

3. Prima facie case U/s 376/302 of IPC was made out against the

the accused. Charge was framed against him to which he pleaded not guilty

and claimed trial.

Witnesses Examined:

4. In support of its case, prosecution has examined 28 witnesses in

all.

5. The brief summary of deposition of prosecution witnesses is as

under:

Formal Witnesses:-

6. PW 2 is SI Mahesh, Draftsman from Crime Team who took rough

notes and measurements of the spot and on the basis of the same, prepared

scaled site plan Ex. PW2/A.

7. PW3 is Constable Mahi Lal Singh who delivered the copies of

FIR at the residence of senior officers on 31.12.2010.

S.C. No.: 40/2011 3/25


4/25

8. PW4 is Lady Constable Beena who recorded DD no. 18 and

proved the same as Ex. PW4/A.

9. PW 6 is Head Constable Sushil Kumar who registered the FIR

and proved the same as Ex. PW 6/ A. He had also recorded DD no. 22-A and

23-A and proved the same as Ex. PW6/C and Ex. PW6/D respectively.

10. PW8 is Constable Sunil Kumar who took the exhibits to FSL,

Rohini and deposited the same there.

11. PW 9 is Head Constable Ram Kumar, the MHC(M) who has

proved the entries regarding deposition of case property in malkhana.

12. PW 10is Sh. Raja Ram, the landlord of deceased who identified

the dead body of deceased vide statement Ex. PW10/A.

13. PW11is Sh. Vishal Gaurav, Nodal Officer from Bharti Airtel Ltd.

who has proved the call details alongwith other documents and ID location of

mobile phone no. 8826718724 in the name of wife of accused as Ex. PW11/A

to Ex. PW11/F.

14. PW12 is SI Devender Purang, Incharge, Crime Team who

inspected the scene of crime and proved the report as Ex. PW12/A.

15. PW13 is Constable Inderpal , Photographer from Crime Team

who took photographs of the scene of crime as well as of dead body from

different angles and proved the same as Ex. PW13/A1 to Ex. PW13/A8 . He

further proved the negatives as Ex. PW13/B1 to Ex. PW13/B8.

16. PW14 is ASI Manish Kumar Bhardwaj from Mobile Crime Team

who developed chance prints from bonnie quarter bottle and glass on the

directions of IO and prepared the finger print expert report Ex. PW14/A.

S.C. No.: 40/2011 4/25


5/25

17. PW 15is Head Constable Samender Singh who proved the copy

of FIR no. 108/2004, P.S. Civil Lines U/s 376 IPC registered against the

accused as Ex. PW15/A.

18. PW 18 is Women Constable Bharti Devi from Police Control

Room who filled up form no.1 of PCR and proved the same as Ex. PW18/A.

19. PW19is Constable Sudesh Kumar who reached at spot alongwith

Inspector Rakesh Kumar and thereafter took the rukka to police station for

registration of FIR.

20. PW 21 is Head Constable Naresh Kumar who collected the

documents relating to mobile phone number 8826718724 from office of

Bharti Airtel Ltd. and handed over the same to IO of the case.

21. PW 24is Ms. Kavita Goyal, Senior Scientific Officer from FSL,

Delhi who examined the exhibits of this case and proved the report as Ex.

PW24/A.

22. PW 26is Ms. Seema Nain, Senior Scientific Officer (Biology )

from FSL, Delhi also examined the exhibits of this case and proved the report

as Ex. PW26/A and Ex. PW26/B.

23. PW28 is Constable Amit kumar who took the exhibits with

sample seals to FSL, Rohini and deposited the same there.

Material Witnesses:-

24. PW5 is Ms. Manisha who first saw the dead body of deceased

and informed the police on 100 number. She has duly supported the case of

prosecution and has also identified the accused present in the court as the

same person who was standing at the gate of room of deceased and was not

S.C. No.: 40/2011 5/25


6/25

allowing anyone to go inside the room.

25. PW17is Sh. Kishan Lal, husband of deceased who stated that on

31.12.2010, accused came to his house and he alongwith accused had

consumed liquor. One Bhola and Ashok Kumar were also with them at his

house and after consuming liquor, he alongwith Bhola and Ashok Kumar left

the house whereas accused Achey Lal remained at his house alongwith his

wife i.e. deceased Smt. Sharda. At about 3 p.m. he came to know that his wife

has expired and he identified the dead body of his wife vide statement Ex.

PW17/A.

26. PW 20is ASI Yashwant Singh,PW 22is Constable Sudhir Singh

and PW 23 is SI Bhoopendra Kumar who on receipt of information regarding

the incident reached at the spot alongwith other police officials and thereafter

joined the investigation of this case alongwith the IO.

27. PW27is Inspector Rakesh Kumar, IO of the case who conducted

the investigation of this case and has proved the memos etc.

Medical Witnesses:-

28. PW 1 is Dr. S. Lal, Specialist Forensic Medicine from Subzi

Mandi Mortuary who conducted postmortem on the dead body of deceased

and proved the report as Ex. PW1/A.

29. PW 7is Dr. Aseem Taneja, CMO from Aruna Asaf Ali Hospital

who examined the deceased in casualty and declared her brought dead. She

further proved the MLC as Ex. PW7/A.

30. PW16is Dr. Akash Jhanjee, Specialist Forensic Medicine from

Subzi Mandi Mortuary who examined the accused for potency and proved the

S.C. No.: 40/2011 6/25


7/25

opinion as Ex. PW16/A.

31. PW25 is Dr. Preeti Prabhakar, CMO from Aruna Asaf Ali

Hospital who examined the accused and proved the MLC as Ex. PW25/A.

32. Statement of accused U/s 313 Cr.P.C. was recorded wherein he

denied the case of prosecution and stated that he is innocent and has been

falsely implicated in this case. He further chose not to lead any evidence in

defence.

33. I have heard Ld. Counsel for accused as well as Ld. APP for the

state and have carefully perused the record.

34. Ld. APP for the state argued that the prosecution has established

the chain of circumstances beyond reasonable doubt; the contradictions as

pointed out are minor in nature which are liable to be ignored; there is no

major discrepancy in the prosecution story and the material witnesses have

fully supported the prosecution case and there is nothing in their lengthy

cross-examination so as to assail their deposition. Ld. APP for the state

vehementally argued that the prosecution has established its case by

completing the chain of circumstantial evidence and the evidence on record

has nowhere been assailed in any manner therefore, accused be convicted for

the offence of murder.

35. On the other hand, Ld. Defence Counsel argued that chain of

circumstantial evidence is not complete. There is no last seen evidence and

motive of crime is not established by the prosecution. Therefore, the accused

is entitled for acquittal.

S.C. No.: 40/2011 7/25


8/25

Conclusion:-

36. Admittedly there is no eye witness of the present case and entire

case rests upon the circumstantial evidence. The law relating to admissibility

of circumstantial evidence is very clear and now it has been laid down by

various decisions of Hon'ble High Court and Hon'ble Supreme Court again

and again that the circumstantial evidence against the accused should not only

form a uniform chain but it must only point out towards the guilt of accused

and nothing.

37. It has been held in Ramesh Bhai & Anr. Vs. State of

Rajasthan 2009 VIII AD (S.C.) 313 that It has been consistently laid

down by this court that where a case rests squarely on circumstantial

evidence, the reference of guilt can be justified only when all the

incriminating facts and circumstances are found to be incompatible with

the innocence of accused or the guilt of any other person. (See Hukam

Singh Vs. State of Rajasthan, AIR 1977 SC 1063, Eraden & Ors. Vs. State

of Hyderabad AIR 1956 SC 316, Erabhadrappa Vs. State of Karnataka

AIR 1983 SC 446, State of U.P. Vs. Sukhban & Ors. AIR 1985 SC

1224, Balvinder Singh Vs. State of Punjab AIR 1987 SC 350 Ashok

Kumar Chatterjee Vs. State of M.P. AIR 1989 SC 1890. The

circumstances from which an inference as to the guilt of the accused is drawn

have to be proved beyond reasonable doubt and have to be shown to be

closely connected with the principal fact sought to be inferred from those

circumstances.

38. The present case of prosecution is also based entirely on the

circumstantial evidence as there is no eyewitness to the incident. I have

considered the rival submissions made at bar and have carefully gone through

the evidence on record. The case of prosecution is based on circumstantial

evidence and the prosecution has claimed to have established its case by

proving the following circumstances in evidence which form the chain of

S.C. No.: 40/2011 8/25


9/25

circumstantial evidence:-

(i) Last seen evidence.

(ii) Recovery of the dead body of a female.

(iii) Recovery of mobile phone in the name of wife of accused from

the spot, presence of accused at the spot and his conduct.

(iv) Condition of dead body, Cause of death and Postmortem Report.

39. In order to prove the guilt of the accused beyond reasonable

doubt, it is bounden duty of the prosecution to establish that the circumstances

concerned must have been established and the circumstances should be of a

conclusive nature excluding every hypothesis except the one that proves the

guilt of the accused. It is further required to prove that the chain of

circumstantial evidence is complete as not to leave any reasonable ground for

the conclusion which is consistent with the innocence of the accused and it

must have been shown that in all human probability, the offence must have

been committed by the accused.

40. I have closely scrutinized the evidence and the material on record

to find out whether the prosecution has succeeded in fulfilling the above

requirement and has established its case beyond reasonable doubt.

(i) Last seen evidence:

41. The only witness of last seen evidence in the present case is

PW17Sh. Kishan Lal who is the husband of deceased. He is the only witness

who saw the deceased last in the company of accused. He has stated that the

accused was working with a tent house as contractor where he used to clean

utensils . On 31.12.2010, accused came to his house at about 8 a.m.. Accused

S.C. No.: 40/2011 9/25


10/25

was carrying one quarter bottle of liquor and he alongwith accused had

consumed the said bottle of liquor. He has further stated that one Bhola and

Ashok Kumar were also with them at his house and after consuming liquor, he

alongwith Bhola and Ashok Kumar left the house whereas accused Achey

Lal remained at his house alongwith his wife i.e. deceased Sharda Devi. At

about 3 p.m. he came to know that his wife has expired and he identified the

dead body of his wife vide statement Ex. PW17/A. The witness in his cross

has admitted that he had worked with accused Achey Lal. He has further

stated that he had not told the police that he alongwith Bhola, Ashok kumar,

Accused and his wife had taken liquor together. The witness in his cross has

stated that accused used to come at his house under the influence of liquor and

also used to serve him the liquor. He has further stated that accused used to

come at his house after every 7-8 days. Ld. Defence counsel argued that

PW17 is even not able to remember the name of his landlord and therefore

his testimony cannot be believed. It may be mentioned that the witness when

cross examined in the court was aged about 73 years and keeping in view his

age, it is possible that the witness might have forgotten the name of his

landlord. Moreover in material particulars this witness has supported the

case of prosecution that accused came to their house alongwith quarter bottle

of liquor and they took the liquor together and after consuming liquor, he

alongwith Bhola and Ashok left the house whereas accused remained at his

house alongwith his wife i.e. deceased Sharda Devi. Thus, from the testimony

of PW17 i.e. husband of deceased it stands proved that the deceased was

lastly seen in the company of accused by her husband. No suggestion has been

S.C. No.: 40/2011 10/25


11/25

given to this witness that accused never came to his house on that day and

they did not take liquor together or that after PW17 left the house alongwith

Bhola and Ashok, accused did not stay back at the room of deceased

alongwith the deceased.

(ii) Recovery of the dead body of a female.

42. In the case in hand PW5 is Ms. Manisha who first discovered the

dead body of deceased Smt. Sharda Devi. She has stated that deceased Sharda

Devi used to work in different houses in their locality as a maid servant. She

was not permanently working as a maid servant in any house and she used to

take money from the persons in her neighbourhood and used to say that

whenever there is necessity she can be called to work as maid in that house.

On 30.12.2010 deceased Sharda Devi had also taken Rs. 20/- from her mother

and had told her mother that whenever required she would work as maid at

their house. On 31.12.2010 she was at her house as she had fever and her

mother had gone to hospital as her brother was admitted in AIIMS hospital.

Her mother had told her to call Sharda Devi if required and at about 12.30

p.m. she went to the house of Sharda Devi to call her for work at her house.

When she reached there, she saw the door of her house was ajar and there was

darkness inside the house. She knocked the door to call Sharda Devi but did

not get any response. She waited outside and again knocked and called

Sharda Devi as aunty from outside but again she did not get any response.

She pushed the door and entered into the room. She went to the place where

Sharda Devi was lying on the floor. She thought that Sharda Devi was

sleeping and she shook her but Sharda Devi did not respond. When she

removed the blanket of Sharda Devi slightly, she found her shirt till neck.

S.C. No.: 40/2011 11/25


12/25

Thereafter she came out of the room and called the neighbours. On her calling

some neighbours came there and she alongwith neighbours were standing

outside the house of Sharda Devi. The witness further stated that at that time

one person was standing at the gate of the room of Sharda Devi and was not

allowing them to go inside. That person told them that Sharda Devi is all

right and is sleeping and she is like his mother or sister. Thereafter feeling

something suspicious, she called the police on 100 number. In the meanwhile

they did not allow that person to go any where and when police came, she

handed over that person to the police. Witness pointed out towards the

accused present in the court and stated that he is the same person who

stopped them from entering into the house of Sharda Devi. She further stated

that the police had recorded her statement. She has stated that the accused was

under the influence of liquor and she alongwith other neighbours stopped him

because he was trying to slip away from there. This witness has been cross

examined at length by Ld, defence counsel but nothing material has come out

of the cross examination of this witness.The witness does not seem to be a

tutored or introduced or stock witness. Her testimony is natural and inspires

confidence.She has stated that the house of victim is situated at about 15-20

steps away from her house and she does not have any knowledge as to who

used to come to the room/house of deceased Sharda Devi. Thereafter in her

cross also she has described the whole sequence and has further stated that

When I reached to the residence/room of victim Sharda and opened the main

door for entering, I saw that Sharda alone was lying on the floor of the room.

(vol. before entering the same, I knocked the door and call aunti -aunti) .

She has further denied this suggestion that accused came from the public

S.C. No.: 40/2011 12/25


13/25

persons and was not inside the house of deceased. Let us for argument's sake

we assume that the accused was also in public persons and was not inside the

room. But still the conduct of accused speaks otherwise. He restrained not

only PW5 but also the other neighbours who collected at the spot from going

inside the room and stated that Sharda Devi is all right and is sleeping and

she is like his mother or sister. If the accused was not present inside the room

and was one of the person from the public, then how he came to know that

victim Sharda Devi is sleeping and nothing has happened with her, why he

also did not try to go inside the room alongwith other public persons and see

what has happened to the lady in the room, are not answered by the accused.

It may be mentioned that in his statement U/s 313 Cr.P.C. accused has also

admitted this fact that he knew Sharda Devi who used to work as maid servant

in different houses but she was not permanently working as maid servant in

any house and he not only knew Sharda Devi but also her husband Krishan

lal. PW5 has denied the suggestion that she did not remove the blanket from

the dead body and did not call any neighbours. Even PW5 has very innocently

stated that she does not know about the relations between accused and

deceased and she did not see the accused visiting the house of victim at any

point of time as she is a research scholar and rarely stays at home in the day

time. PW5 has stated that she does not have any knowledge about the persons

visiting the house of deceased.It is natural for any person and especially for

a student to have no knowledge as to who visits the house of his/her

neighbours or the maid servant. Testimony of PW5 inspires confidence and

she does not seem to be a tutored witness. Rather she seems to be truthful

S.C. No.: 40/2011 13/25


14/25

witness who has deposed whatever she had seen at the place of incident.

Thus, from the testimony of PW5 it stands proved that the dead body of

deceased was first discovered by PW5 and when she saw the dead body, she

found the shirt of deceased till neck and the dead body was covered with a

blanket.

43. PW10 is Sh. Raja Ram, landlord of the house no. L-11, Majnu Ka

Tila, Civil Lines, Delhi where deceased Sharda Devi was residing as tenant

alongwith her husband. He has stated that he let out one room at ground floor

to Smt. Sharda who used to work in the nearby houses as maid and Sharda

Devi and her husband used to drink alcohol sometime. He has further stated

that on 31.12.2010 in the morning at about 10 a.m. Sharda Devi came to him

for taking kerosene oil and he gave her the kerosene oil. He has further stated

that his statements Ex. PW10/A and Ex. PW10/B were also recorded by the

IO which are correct. Nothing material has come out of the cross examination

of this witness.

44. PW17, husband of deceased has also stated that on 31.12.2010

accused came to his house at about 8 a.m. and he was carrying one quarter

bottle of liquor and thereafter they both consumed the liquor together. PW5

also has stated that accused was under the influence of liquor and was not

allowing anyone to enter into the room of deceased. From the testimony of

PW17, it is clear that accused and PW17 took the liquor together and from the

testimony of PW5 it is clear that accused was under the influence of liquor

when he was standing outside the gate of room. Though PW17 has stated that

his wife did not take liquor with them but PW10 who is the landlord of

S.C. No.: 40/2011 14/25


15/25

deceased has also stated that deceased alongwith her husband used to take

liquor. Accused in his statement U/s 313 Cr.P.C. has also stated that in answer

to the question no. 10 that he used to come to the house of PW17 for the

purpose of calling him for the work and both Krishan lal and deceased Sharda

Devi used to drink and he also used to drink but not with them. From the FSL

report proved on record as Ex. PW24/A, the blood sample of deceased

contained ethyl alcohol 732.4 mg/100 of blood and even stomach and piece of

small intestine, lever, spleen and kidney of deceased were also found to

contain ethyl alcohol. This fact also stands proved that deceased used to take

liquor and when she died before that also she had taken liquor. Though her

husband PW17 has denied this fact that deceased took liquor with them but

the FSL report Ex. PW24/A speaks otherwise.

(iii) Recovery of mobile phone in the name of wife of accused from

the spot,Presence of accused at the spot and his conduct.

45. PW5 Manisha has stated that at the time the dead body was

discovered, accused was standing at the gate of room of deceased and was not

allowing anyone to go inside the room . She has stated that accused also tried

to slip away from there but she alongwith other neighbours restrained the

accused and thereafter handed over him to the police. For the sake of

repetition it may be mentioned that from the testimony of PW17 it already

stands proved that accused came to the house of deceased on 31.12.2010 at

about 8 a.m. who was carrying a bottle of liquor and they took the liquor

together and thereafter PW17 alongwith Bhola and Ashok left the room but

the deceased and accused stayed back at the room of deceased. Thus, not only

PW5 has stated that accused was standing outside the gate of room of

S.C. No.: 40/2011 15/25


16/25

deceased and was not allowing them to go inside the room but PW17 i.e.

husband of deceased has also stated that after consuming liquor, he alongiwth

Bhola and Ashok left the room but accused remained at his house alongwith

his deceased wife. The presence of accused at the spot has also been proved

by the fact that the mobile phone belonging to accused's wife was found near

the dead body of deceased. As per the case of prosecution, a mobile phone

make Nokia was found near the dead body of deceased. The number of said

mobile phone is 8826718724 and during investigation it transpired that the

mobile phone is in the name of wife of accused. The witness examined by the

prosecution in this regard is PW11 Sh. Vishal Gaurav, Nodal Officer from

Bharti Airtel Ltd. who brought the summoned record pertaining to mobile no.

8826718724 and stated that this number is in the name of Maneshwari W/o

Achey lal R/o 3, Atur Rehman Lane, Under Hill Road, Civil Lines, Delhi. He

has further proved the certified copy of customer application form as Ex.

PW11/A, the photocopy of election identity card as Ex. PW11/B, the call

details of said mobile no. as Ex. PW11/D and cell ID location of mobile no.

8826718724 as Ex. PW11/E. He has also proved the certificate U/s 65 B of

Evidence Act as Ex. PW11/F. This witness in his cross has admitted that the

call details of this mobile number relating to 31.12.2010 are only incoming

calls on this phone number . So far as the incoming calls are concerned, then

whether the calls were incoming or outgoing the fact remains that it shows

the site of mobile tower at Majnu Ka Tila, B.D. Estate, .Both the cell phone

towers are near the place of incident i.e. Aruna Nagar, Majnu Ka Tila . Thus,

the details regarding mobile phone recovered from the spot have been duly

proved by the prosecution as per the provisions of section 65 B of Evidence

S.C. No.: 40/2011 16/25


17/25

Act and even the certificate in this regard has also been duly proved. No

suggestion has been given to this witness that the mobile phone does not

belong to wife of accused or that the location of the mobile number during the

time of incident is incorrect . All the police officials who joined the IO during

the investigation have stated about the recovery of this mobile phone from

near the dead body of deceased. Even no suggestion has been given to them

that no such mobile phone was found near the dead body or that same has

been planted lateron upon the accused.

46. Ld. Defence counsel argued that though many public persons

were present at the time when the articles near the dead body were seized but

not a single public witness has been joined as witness in the present case by

the police officials . So far as the non joining of independent public witnesses

are concerned, then it is of common knowledge that now a days in city like

Delhi though a crowd collects at the spot whenever an incident takes place

but hardly any one is willing to join the investigation especially in a murder

case for the fear of police or court rounds and present case is also no

exception to this rule. Therefore if the IO did not get any other independent

public witness in this case then no adverse inference for the same can be

drawn when PW5 Manisha has duly stated about the condition of dead body

and presence of accused at the spot in her testimony.A suggestion has been

given to the IO that Manisha has been implanted as witness and she has no

knowledge of the incident. But no such suggestion has been given to PW5.

47. Moreover one more suggestion has been given to the IO during

his cross that accused was present with the IO since 11 a.m. till night. But

S.C. No.: 40/2011 17/25


18/25

accused in his statement has taken a contradictory plea wherein he has stated

that he was not present at the spot and Krishan Lal i.e. husband of the

deceased came to his house and told him that his wife is not well . Krishan Lal

asked money from him but he did not give the money and told Krishan Lal

that he would go to his house with him . Accused has further stated that there

was some other person alongwith Krishan lal and both of them brought the

accused to police station and in the police station at about 8.30 p.m. he was

made to drink liquor and thereafter he was taken for medical examination.

This answer given by the accused himself is contradictory .He has first stated

that Krishan Lal came to his house at about 10.15 p.m. and thereafter he

stated that in the police station at about 8.30 p.m. he was made to drink

liquor.If the accused was taken by Krishan Lal and some unknown person to

the police station after 10.15 p.m. then how the police can administer liquor

to him at 8.30 p.m. is not explained by the accused.

48. Accused in a way has tried to denied his presence at the spot but

no such suggestion has been given by the accused during the cross

examination of PW5 or PW17 or during the cross examination of IO and

other police officials who reached at the spot on receipt of information and

were with the IO during the investigation of this case. Even no suggestion has

been given to PW17 Krishan Lal that he went to the house of accused and

thereafter brought the accused to police station.

49. Accused in his statement has admitted that this mobile phone

number is in the name of his wife but he has stated that his mobile phone was

taken away by the police when he was brought to the police station and later

S.C. No.: 40/2011 18/25


19/25

on same was implanted upon him in this case.It is very strange that accused's

mobile phone was also taken away by the police and he was falsely

implicated in a murder case but still till date neither the accused nor his other

family members have made any complaint regarding false implication of

accused in this case to any of the higher authorities.

50. Moreover PW5 in her cross has stated that the street in which

house of deceased is situated is quite narrow and hardly one person can pass

through it and in this street, only the house of deceased Sharda Devi has its

exit and no other house has its exit on this street. Thus, it is clear that no other

house has its exit in that street and therefore no person from other house can

come into the street and only person who has to enter into the room of

deceased or to come out of the room of deceased will have to access that

street only.

(v) Condition of Dead Body, Cause of death and PostmortemReport.

51. PW 5 is the witness who first saw the dead body of deceased .

She has stated that she pushed the door and entered into the room where the

deceased was lying on the floor . She thought that deceased was sleeping and

thereafter she shook her but when the deceased did not respond, she removed

her blanket slightly. She found the shirt of deceased till neck and she pulled

down the shirt slightly. From the testimony of PW5 it is clear that PW5 when

first saw the dead body , she saw her shirt till neck and feeling something

foul, she came out of the room and called the neighbours. In the meanwhile

accused who was standing on the gate of the room of Sharda Devi did not

allow PW5 or other neighbours to go inside.

S.C. No.: 40/2011 19/25


20/25

52. PW19 is Constable Sudesh Kumar who alongwith the IO

Inspector Rakesh Kumar went to house no. L-11, Majnu Ka Tila, Delhi and

met SI Bhupender, ASI Yashwant , Constable Sudhir and Lady constable

Rekha. PW19 has stated that they noticed dead body of a woman which was

lying on the floor and the dead body was covered with one blanket from

above the stomach and one salwar and inner were lying at the spot near the

dead body. PW20 ASI Yashwant Singh has also deposed on the lines of

PW19 in his examination in chief. PW22 is Constable sudhir who has also

stated that dead body of a female was lying on the bedding on the floor and it

was covered upto chest and she was naked below the stomach. Her clothes i.e

salwar and inner were also lying near her foot. PW23 SI Bhoopendra Kumar

has also given the same description of the dead body which was lying naked

below her neck and there was no visible injury on the body and one salwar

and woolen inner were also lying on the side of her legs. Similarly PW27

Inspector Rakesh Kumar who is the IO of the case has stated that the female

was naked from breast to her feet. Neither during the cross of PW19 any such

suggestion regarding the condition of dead body has been put nor any

suggestion has been given to PW19 that the dead body was not naked below

the neck or that no salwar or inner was lying near the dead body. Similarly

during the cross of PW20 no such suggestion has been given by the accused.

PW20 has stated that a muffler was also lying on the private parts of deceased

but not only PW20 but also neither PW22, PW23 nor the IO have been cross

examined by accused regarding the condition of dead body when it was

found. Though PW5 has not stated directly that the dead body was naked

below but all the police officials who after receipt of the call reached at the

S.C. No.: 40/2011 20/25


21/25

place of incident and found the dead body have stated that she was naked

below her stomach and none of the police officials in this regard have been

cross examined by the accused and their testimony in this regard have gone

unrebutted and unchallenged. From the testimony of all these witnesses, it

stands proved that the dead body was naked below her stomach and her

clothes i.e. salwar and inner were also lying near her foot.

53. The postmortem report which has been proved on record as Ex.

PW1/A talks of antermortem injuries like reddish abrasion 1.0 x 0.5 cm over

anterior aspect of vagina just above clitorius and multiple reddish bruise in

and around the vaginal orifices, on inner mucosa with mild bleeding and the

cause of death as given by the doctor is asphyxia due to aspiration of gastric

contents consequent upon forceful sexual intercourse and sufficient to cause

death in ordinary course of nature which shows that the deceased was

subjected to forceful sexual intercourse.

54. As per the postmortem report, all the injuries were antermotem in

nature and recent in duration and injuries present in and around the vagina

indicate sexual assault/intercourse before death. Ld. APP for the state argued

that the deceased was forced for sexual intercourse and since the deceased

was around 65/70 years of age, when the accused committed forceful sexual

intercourse upon her then in order to save herself, though she was under the

influence of liquor, she must have tried to shout and it seems that in order to

prevent her from shouting or crying for help, accused put his palm upon the

mouth of deceased so forcefully that it resulted in her death. The cause of

death is asphyxia due to aspiration of gastric contents consequent upon

S.C. No.: 40/2011 21/25


22/25

forceful sexual intercourse and sufficient to cause death in ordinary course of

nature . Keeping in view the cause of death as proved on record by the

prosecution, the submission of Ld. APP for the state bears force and cannot

be ignored.During the cross, PW1 has admitted that the lungs were congested

because of food i.e. gastric contents and it happened due to forceful sexual

intercourse. PW1 has further stated that it is not possible for normal

individual to aspirate the gastric contents. He has further stated that it is not

possible for a normal healthy person that by overeating only gastric contents

will enter into his/her lungs and the other body parts and even during the old

age it is not possible. Even PW1 has denied that this condition can be

provoked by self exercise in normal circumstances . In the postmortem report

Ex. PW1/A, it is clearly mentioned that injuries present in and around the

vagina indicate sexual intercourse/assault before death. Thus, from the

postmortem report of deceased proved on record by the prosecution beyond

reasonable doubt and from the condition of dead body as was found by PW5

and other police officials, it is clear that the deceased was subjected to

forceful sexual intercourse as a result of which she died due to asphyxia due

to aspiration of gastric contents.

55. Ld. Defence counsel argued that PW7 who examined the

deceased has opined that no external injuries were seen .It may be mentioned

that PW7 is only Casualty Medical Officer who had examined the patient in

OPD only and therefore there was no occasion for him to examine the private

parts of deceased who was a female.

56. PW 16 is Dr. Akash Jhanjee, Specialist Forensic Medicine from

S.C. No.: 40/2011 22/25


23/25

Subzi Mandi Mortuary who has proved the potency report of accused vide

MLC Ex. PW16/A and has opined that there is nothing to suggest that the

person examined is not capable of performing sexual intercourse. The

testimony of PW16 has gone unrebutted and unchallenged.

57. PW26 is Dr. Seema Nain, Senior Scientific Officer from FSL,

Delhi who has duly proved the FSL reports as Ex. PW26/A and Ex. PW26/B.

As per the FSL report, human semen was detected on Ex. 1a, 1b and 6. Ex. 1a

and 1b are salwar and wollen payjama of deceased which were recovered

from the spot and Ex. 6 is dirty underwear of accused. Though regarding

blood group, report Ex. PW26/B is silent as Ex. 1a, 1b and 6 gave no reaction

but presence of human semen on the clothes of deceased as well as of accused

also shows that the deceased was subjected to sexual intercourse. In the cross

of PW26 she has stated that semen may or may not be detected on the clothes

if they are washed after the incident. But in the present case there is no

evidence on record that the clothes of accused or of deceased were washed

after the incident.

58. Accused was caught at the spot only and the clothes of deceased

were recovered near her dead body. Though the deceased was a married lady

aged around 65/70 years and must be habitual to sexual intercourse but the

presence of human semen on her clothes immediately before her death and

also on the clothes of accused coupled with the injuries found on the private

parts of deceased as well as the condition of dead body shows that the

deceased was subjected to forcible sexual intercourse.

59. The other witness examined by the prosecution are the link

witnesses who joined the investigation of the case at different stages and have

S.C. No.: 40/2011 23/25


24/25

completed the chain of evidence and nothing material has come out of their

cross examination.

60. As regarding defence, accused has not lead any evidence in his

defence . In his statement U/s 313 Cr.P.C. accused has stated that he was not

present at the spot and the mobile phone of his wife was also snatched by the

police from him and later on same has been implanted at the spot. But accused

has not led any evidence to substantiate his claim. No doubt in a criminal

case, it is for the prosecution to prove its case against the accused beyond

reasonable doubt but at the same time if accused is making some averments

then it is for him to prove the same which he has failed to prove.

61. It has been held in Bhagat Ram Vs. State of Punjab AIR 1954

SC 621 that Where the case depends upon the conclusion drawn from

circumstances the cumulative effect of circumstances must be such as to

negative the innocence of the accused and bring the offence home beyond any

reasonable doubt.

62. It has been further held in C. Chenya Reddy & Ors. Vs. State of

A.P. 1996 (10) SCC 193 that In a case based on circumstantial evidence,

the settled law is that the circumstances from which the conclusion of guilt is

drawn should be fully proved and such circumstances must be conclusive in

nature. Moreover, all the circumstances should be complete and there should

be no gap left in the chain of evidence. Further the proved circumstances

must be consistent only with the hypothesis of the guilt of the accused and

totally inconsistent with his innocence......

63. In the case in hand also, the chain of all circumstantial evidence is

S.C. No.: 40/2011 24/25


25/25

complete, there is no gap left in the chain of circumstantial evidence and the

cumulative effect of circumstances proved on record by the prosecution points

out towards the guilt of accused only.

64. In view of the abovesaid discussion, prosecution has been fully

able to prove its case against the accused beyond reasonable doubt. As such,

accused is held guilty and convicted for the offence U/s 376/302 of IPC.

(MADHU JAIN)

Additional Sessions Judge-01 (North)

Tis Hazari Courts, Delhi

Announced in the open court today i.e. on 27.09.2011

S.C. No.: 40/2011 25/25

"Menopause" case, lower court verdict

Documents

Transcript of "Menopause" case, lower court verdict