Vishnu Mohan vs State (Nct Of Delhi)
2001 Latest Caselaw 785 Del

ORDER

Usha Mehra, J.

1. In the case of Padala Veera Reddy Vs. State of Andhra Pradesh and Others 1989 Supp (2) Supreme Court Cases Pages 706, the Apex Court laid down the tests to be followed by the prosecution when the case is solely based on circumstantial evidence. Those are reproduced as under :-

1. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

2. those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

3. the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committred by the accused and none else: and

4. the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis that that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

2. Keeping the above principle of law as enunciated by the Apex Court, we may examine carefully the circumstances relied upon by the prosecution to prove that it was the appellant who committed murder of his mother. But before dealing with each of the circumstance let us have a quick glance to the facts of this case.

3. Prosecusion story was unfolded by Sh. Pramod Kumar (PW-4), brother of the accused. According to him on the intervening night of 26th/27th June, 1988 when he was sleeping with his family of the first floor of the house, he got up to ease himself. He heard noise of "khat khat" coming from the ground floor. Time was around 3.00 A.M. On hearing this noise of "khat khat", he came down. He found that the said noise was coming from the room of his mother on the ground floor. He called out his mother but when no response came he went to her room and switched on the light. Bu the time he called his mother, the noise stopped. When he switched on the light, be saw his mother lying on the cot. Finding no motion he cried that she had been killed. He noticed bruises on her neck. On hearing his cries, his younger sister Sushma (PW-9) who was also sleeping on the first floor came down to the room of their mother and so did his brothers Subhash (PW-5) and Rishi Raj. They found the accused hiding behind the cooler in that room. They also found the lock of the store broken. The store was attached to the room of his mother. Mother used to keep here valuables in the safe of that store. Accused was apprehended from behind the cooler and on being confronted admitted that he had killed his mother. Constable Arun Kumar (PW-11) arrived in the mantime. From the search of the accused by Constable Arun Kumar ear-rings and and the ring of his mother which she was wearing before murder were recovered from the pocket of the accused. In front of the police the accused admitted that he killed his mother because he needed money to buy smack but the mother refused to give money. Accused was a drug addict. Police also seized from the room a iron rod, broken lock, batta and cloth belt. Accused used to quarrel with his mother in order to get money from her in order to buy drug. On that day since she had not given the money, he therefore killed her. At the time of his arrest, he was holding iron rod in his hand.

4. Prosecution examined the complainant i.e. Pramod kumar (PW-4); his brohter Subhash (PW-5); his father Rattan Lal (PW-6); his siser Sushma Gupta (PW-9); Rakesh Bhatnagar (PW-1), a neighbourer, who called the police on the fateful night beside examining the police witnesses including the investigating officer and the doctors namely Sh.L.T. Ramani (PW-14) who conducted the post-mortem and Dr.Kuldeep, who examined the accused after he was arrested.

5. Prosecution relied the following circumstances to prove the guilt of the accused, which can be summarised as under :-

(i) Accused was drug addict.

(ii) He had been quarreling with his mother when ever she used to refuse riving him money.

(iii) He was jobless.

(iv) He used to sleep with his mother in her room.

(v) He had come back home three or four days prior to this incident.

(vi) On the fateful night be slept in the room of his mother on the ground floor along with his mother.

(vii) At wee hour of night around 3 A.M. his family members found him in the room of their mother. He was hiding behind the cooler installed in mother's room.

(viii) At that time he was holding iron rod in his hand.

(ix) Mother died due to strangulation.

(x) From his person ear rings and ring were found.

(xi) Those articles on search by police official, Arun Kumar (PW-11) were recovered from the pocket of the accused.

6. Counsel for the appellant contended that the circumstances of the cases as projected by the prosecution may create a suspicion against the accused but in totality are not sufficient to hold that he had committed the murder of his mother. According to him the accused was not sleeping with his mother on that night but was sleeping on the first floor. Moreover, he did nt abscond. Had he killed his mother he had plenty of opportunity to abscond from there and even for the sake of argument it is presumed that he slept in the room of his mother that is not a sufficient circumstance to hold him guilty, nor the recovery of ornaments of the deceased from the accused is a clinching evidence of his being guilty. Moreover the alleged confession of the accused before PW and police is not admissible in evidence nor can be used against him. To support his contention Mr. Sumeet Verma, counsel for the appellant placed reliance on the decision of Supreme Court in the case B.L. Satish Vs. State of Karnataka II (2001) CCR 76 (SC).

7. We find no merits in the pleas raised by Mr. Sumeet Verma. So far as the case of B.L. Satish (Supra) the same is distinguishable on facts. Unfortunately for the appellant overwhelming evidence has come on record to establish his guilt. It has been proved by the testimonies of his brothers and sister that on the fateful night he slept on the ground floor of the house with his mother. This has been so stated and proved by the unrebutted testimonies of Pramod Kumar (PW-4), Subhash (PW-5) as well as of his sister Sushma Gupta (PW-9). They all in one voice said that the accused used to sleep with his mother on the ground floor in her room and even on the fateful right he slept with his mother in her room on the ground floor. This part of their testimony was not subjected to cross-examination. The only suggestion given to Pramod Kumar (PW-4) on this aspect was that accused had been falsely implicated so that he could be forced to leave the house. With regard to his sleeping with the mother in her room on the ground floor and his being found in his mother's room on the ground floor behind the cooler on that fateful night, not even a single suggestion was given either to Pramod Kumar (PW-4) or to Subhash (PW-5). Rather in cross examination of Subhash (PW-5) it was reiterated that accused was lying in mother's room when he saw his mother alive lastly at 11 P.M. Similarly his sister, Sushma (PW-9) stated that the accused slept in deceased's room on the ground floor on that night. For the sake of argument if we accept the contention of Mr. Verma that accused on the that night slept on the first floor of the house, then what is his explanation as to what he was doing at the wee hour of the night in his mother's room on the ground floor. It has not been denied that when Pramod (PW-4) came down to the room of his mother at 3.00 A.M. accused was found hiding behind the cooler. Moreover, to none of his family members any suggestion was given that accused on that night was sleeping on the first floor of the house. This plea thus appears to be an afterthought. It was only vide his statement under Section 313 Cr. P.C. that for the first time he came out with the defense that he was sleeping on the first floor of the house and not in the room of his mother. In view of the overwhelming unrebutted evidence available on record, it stood established that on the fateful night accused slept with his mother in her room on the ground floor. The mere fact that accused did not abscond by itself does not prove his innocence. May be when he was breaking the lock of the store, hearing that noise Pramod (PW-4) came down. On Realizing that his brother had come the accused hid himself behind the cooler. Circumstances suggest that he might not had much time to escape. Admittedly, mere recovery of articles by itself may not be a sufficient circumstance to hold a person guilty but the cumulative effect of all the circumstances put together establish beyond doubt that it was the accused who slept in the room of his mother on the fateful night. He being drug addict needed money and when mother did not give the same he strangulated her and removed her gold ornaments. He also broke open her locker lying in the store adjacent to mother's room. Recovery of the ear rings and ring of his mother from his pocket in the facts of this case is a very important circumstance which clinches the case of the prosecution.

8. Constable Arun Kumar (PW-11) was the one who took search of the accused and recovered the gold articles. He was on patrol duty on the night of 26th/27th June, 1988 in that area. At about 3.30 A.M. he was informed that an incident had taken place in Gali No. 90, house no. 1336/90. When he entered the said house, he found the accused was surrounded by his family members. They were asking him where were the ear rings and the ring of their mother. It was Constable Arun Kumar (PW-11), who took search of the accused and recovered one pair of tops (Ex.PW/1-2) and one ring (Ex.P1). These he handed over to Pramod Kumar (PW-4), who in turn handed over the same to the Sub-Inspector. The fact that the ear rings and the ring of the deceased were recovered from the pocket of the accused immediately at the spot leaves no manner of doubt that it was the accused who after doing away of his mother removed her gold ornaments in order to fulfill his urge for drug.

9. The fact that missing articles from the body of the deceased were found in the pocket of the accused in the facts of this case was a clinching circumstance to point to the guilt of the accused. As already pointed out above on facts, the case relied by Mr. Verma of Supreme Court namely B.L. Satish (Supra) is distinguishable. In that case the only circumstance was recovery of ornaments at the instance of the accused after some time of the murder. That except recovery of ornaments on the disclosure of the accused there was no other circumstance incriminating the accused. Therefore, Apex Court observed that aforesaid single circumstance was hardly sufficient for a criminal court to reach the conclusion that the murder was committed by the accused. In contrast in the present case link in the chain of circumstance is complete. It leaves no manner of doubt that it was this appellant who strangulated his mother which led to her death. The circumstances enumerated above stood proved by the testimonies of Pramod Kumar (PW-4), Subhash (PW-5), Sushma (PW-9) and Constable Arun Kumar (PW-11). It was not on any one solitary circumstance that prosecution case rested. Therefore, appellant cannot take any help from the decision of Supreme Court in B.L. Satish's case (Supra).

10. Counsel for the appellant then contended that the alleged confession of the appellant before the police is not admissible in evidence. Moreover, as per the post-mortem report, nail marks on the neck of the deceased were not that of the appellant. According to Subhash (PW-5), appellant strangulated his mother with the help of cotton belt (Nawar). But this stand stood falsified from the statement of the doctor who conducted the post-mortem. Appearing as PW-14 Dr. L.T. Ramani said that there were no marks of cotton belt on the neck of the deceased. Dr. L.T. Ramani (PW-14) admitted in his cross examination that deceased could have been strangulated by more than one person. In view of this admission by Dr. L.T. Ramani (PW-14), Mr. Verma contended that the theory propounded by the prosecution that the appellant strangulated his mother stands negated. If the doctor could not rule out the possibility that the strangulation could have been by more than one person, it creates a doubt and serious dent in the prosecution story. We find no merit in this submission of Mr. Verma for the obvious reason that Dr. L.T. Ramani nowhere said that the manual strangulation could not have been done by one person only. In Dr. Ramani's words:-

"I cannot rule out possibility of handiwork of one or more than one person causing manual strangulation of the deceased."

11. This statement show that manual strangulation was done may be by one person or could be more than one. The mere possibility that the strangulation could have also been done by more than one person does not suggest that the strangulation was done by number of persons nor it suggests that one person could not do so. Contention of Mr. Verma that since Subhash (PW-5) said that strangulation was with the cotton belt (Nawar) and the doctor said it was manual does not weaken the case of the prosecution in any manner. Fact of the matter is that when Pramod Kumar (PW-4) came down to the room of his mother and switched on the light, he found injury marks on the neck of his mother. Nobody had seen as to how the appellant strangulated his mother. Since the cotton belt (Nawar) was found lying there, Subhash (PW-5) thought that mother was strangulated with cotton belt (Nawar). The injury marks as noticed by Pramod Kumar (PW-4) and stated in the FIR at the fist available opportunity corroborates post-mortem report. Those could not have been by cotton belt (Nawar). Pramod Kumar's (PW-4) statement that he found injury marks on the neck of his mother had been fortified by Dr. L.T. Ramani (PW-14). Those marks on the neck of the deceased according to Dr. Ramani (PW-14) could have been caused by manual strangulation. For these reasons we find n merits in the contention of Mr. Verma nor any infirmity in prosecution case on this count.

12. Mr. Sumit Verma then contended that even if it is presumed that appellant strangulated his mother under the influence of drug or to fulfill his urge for drug, this shows he had no motive or intention to kill his mother. At best he might have put pressure on the neck of his mother in order to extract money but definitely was not to kill her. He being a drug addict, wanted only money. He could not have any intention to kill, therefore, the case at best can be covered under Section 304 IPC and not under Section 302 IPC.

13. It is an admitted fact on record that in order to buy drug, accused had been taking money from his mother. Whenever she refused he used to quarrel with her. He had come back home hardly 4 or 5 days before this incident as said by his sister Sushma (PW-9). He must be in need of money to buy drug. Being a drug addict he might not have realised that putting pressure on the neck of his mother would cause her death. As per prosecution own story his intention was to extract money. Had he had the intention to kill, he would have absconded after killing his mother. But the appellant remained in the room even after the death of his mother. As per the post-mortem report Ex.PW14/A, the time of death was approximately 2.30 A.M. whereas Pramod Kumar (PW-4) got up to ease himself at about 3.00 A.M. He came down to the room of his mother thereafter. During this period accused had sufficient time to make good his escape. But he did not escape because he had no intention nor knowledge that he had by his act killed his mother.

14. On this aspect we have given our due consideration. Admittedly appellant was a drug addict. All efforts to de-addict him had failed. Previously also he had been quarrelling with his mother as well as brothers and other family members in order to extract money. Appellant was in need of money because he wanted to buy drugs and finding himself alone with the mother he tried to extract money by putting pressure on her neck so that he could remove her gold ornaments and also remove valuable from her safe lying in the store. But unfortunately for him PW-4 came there. This putting of pressure on the neck of his mother which strangulated her, according to Dr. L.T. Ramani (PW-14) was sufficient to cause her death. It is nobody's case that the accused had the intention to murder his mother nor from the evidence which has come on record it can be inferred that he had the intention to cause death of his mother. We have to see the conduct of the accused in its entirety. To attract a case under Section 300 IPC, the prosecution has to establish that the accused had the 4;79H7m2m9;10Hintention to kill but in the case in hand intention to kill is missing. None of the witnesses including his brothers and sister have come forward to say that the strangulation was pre-meditated or accused had any intention to kill his mother. The prosecution must prove the following facts before it can bring a case under Section 300 IPC:-

First, it must establish, quite objectively, that a bodily injury is present;

Secondly, the nature of injury must be proved; these are purely objective investigations;

Thirdly, It must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended.

Fourthly, it must be proved that the injury of the type just described made up of the three-elements set out above is sufficient to cause death in the ordinary course of nature.

15. From the facts on record, it cannot be said that the appellant intended to cause this bodily injury in order to murder his mother. Admittedly, cotton belt (Nawar) was lying in the room. he was holding iron rod but he did not use either. Had he had any intention to kill he would have used the cotton belt or the iron rod instead of manually strangulating her. At best from the nature of the injuries that had been caused to the deceased, it can be said that the accused may have the knowledge that the injuries were likely to cause hurt to his mother but intention to kill as such cannot be inferred from the evidence available on record. The second part of Section 304 IPC speaks of knowledge and does not refer to intention which has been segregated in the first part. Where the accused, causing the death of another, had no intention to kill, then the offence would be murder only if:-

(i) the accused knew that the injury inflicted would be likely to cause death; or

(ii) that it would be sufficient in the ordinary course of nature to cause death; or

(iii) that the accused knew that the act must in all probability cause death.

16. From the facts as discussed above it cannot be said that the accused had the intention to inflict such injuries as would cause her death. It is not prosecution's case that the appellant had pre-meditated to cause death. The accused in order to snatch money and the gold ornaments of his mother did the act. He had no intention that this act of his was in all probability cause the death of his mother. Hence, the special knowledge of causing death cannot be attributed to the accused. It is quite obvious from the circumstances of this case that the intention of the appellant could only have been to threaten or silence his mother so that he could steal money from her store or remove her gold ornaments in order to buy the drugs and in doing so he put pressure on the neck which caused her death.

17. Having come to the conclusion that there was no intention to cause death even if knowledge is imputed to the accused still he cannot be convicted under Section 302 IPC. Reliance in this regard can be placed on the decision of Supreme Court in the case of State of Madhya Pradesh vs. Jhaddu & Ors. wherein it was held that when there is no intention to kill, but the accused could be imputed with the knowledge that death was the likely result and therefore the conviction of the accused under Section 304 Part II IPC was affirmed in the said case. Similarly in the case of Madanlal v. State of Punjab 1992 Supp (2) SCC 233, the motive of the crime was that the accused was hungry for three days and when he demanded food from the deceased 'Sewadar' of the 'Dera', where free food was being served, the deceased refused and consequently, the accused, in a fit of anger, attacked the deceased. Court held that the offence would be covered under Section 304 (II) IPC instead of 302. In the present case also from the facts which have come on record it is apparent that the accused was drug addict. He must be in need of money that is why four or five days before the incident he came back home. Earlier whenever he was refused money he used to quarrel with his mother. This time he wanted to silence his mother in order to rob her of her gold ornaments and valuables, least Realizing that he had killed her. But this does not prove that he had any intention to kill her. His intention at best could be to take her jewellery or take money from her locker. Therefore, the case at best can be covered under Section 304, Part II IPC instead of Section 302 IPC.

18. In view of our above discussions and having held that the case is covered under Section 304 Part-II IPC we partly accept the appeal, modify the conviction and the consequential sentence i.e. from life imprisonment to 10 years rigorous imprisonment with a fine of Rs. 2000/- and in default of payment of fine to further undergo RI for one year. He will, however, be entitled to benefit of Section 428 Cr.P.C. Order be conveyed to the appellant through the Superintendent, Central Jail, Tihar.