Pinki vs The State (G.N.C.T. Of Delhi)
2013 Latest Caselaw 3756 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                RESERVED ON : 25th JULY, 2013
                                 DECIDED ON : 26th AUGUST, 2013
+                         CRL.A. 1017/2011
       PINKI                                         ....Appellant
                    Through :   Mr.R.K.Dikshit, Advocate.
                                versus
       THE STATE (G.N.C.T. OF DELHI)          ....Respondent
                Through : Mr.M.N.Dudeja, APP.
       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.

1. Pinki (the appellant) impugns a judgment dated 20.05.2011

in Sessions Case No. 218/1/10 arising out of FIR No. 55/10 PS Moti

Nagar by which she was convicted for committing offence punishable

under Section 304 part-II IPC. By an order dated 26.05.2011, she was

sentenced to undergo RI for five years with fine ` 200/-.

2. Allegations against Pinki were that on 25.02.2010 at about

02.30 P.M. at Jhuggi No. 155/74, Jakhira, Chara Mandi, Delhi, she

committed culpable homicide not amounting to murder by causing death

of Akash aged 13 years. The police machinery came into motion when

Daily Diary (DD) No. 24A (Ex.PW-9/A) was recorded at 01.45 P.M. on

26.02.2010 on getting information from his father that Akash had died for

unknown reasons. The investigation was assigned to ASI Preet Pal Singh

who with Const.Raju Palwe went to the spot. On inspection of the body,

ligature marks were found on the deceased's neck. The Investigating

Officer made endorsement (Ex.PW-7/A) and lodged First Information

Report under Section 304 IPC. Statements of the witnesses conversant

with the facts were recorded. On 26.02.2010, the appellant's involvement

in the incident surfaced and she was arrested. Pursuant to her disclosure

statement, 'chunni' ligature material used to strangulate Akash was

recovered. Post-mortem examination on the body was conducted. After

completion of investigation, a charge-sheet under Section 304 part-I IPC

was submitted in the Court. Pinki was duly charged and brought to trial.

The prosecution examined thirteen witnesses. In her 313 Cr.P.C.

statement, Pinki pleaded false implication. She claimed that Akash had

committed suicide. Mahavir Singh (Pinki's husband) stepped into the

witness-box in her defence as DW-1. On appreciating the evidence and

considering the rival contentions of the parties, the Trial Court, by the

impugned judgment, held the appellant perpetrator of the crime under

Section 304 part-II IPC and sentenced her accordingly. Being aggrieved,

she has preferred the appeal.

3. Indisputably, Mahavir Singh was married earlier to Babli

who expired after giving birth to two boys Akash and Vikas. After about

four years of her death, Mahavir Singh married to Pinki (the present

appellant) and she was blessed with three children out of this wedlock.

Akash used to live with her natural father Mahavir Singh and step-mother

Pinki and was studying in Government Boys' Secondary School, Tulsi

Nagar, Delhi in 8th Standard. On 25.02.2010, he was found dead in the

house. No complaint was lodged for his death with the police that day.

Last rites were not performed to await arrival of Mahavir Singh's father

who had gone to his village.

4. Appellant's conviction is based upon the sole testimony of

PW-6 (Murti Devi), Babli's mother. In her statement under Section 161

Cr.P.C. given on 26.02.2010, she revealed that Pinki had given beatings to

Akash when he was roaming on a cycle rikshaw on 25.02.2010. She had

put a 'chunni' around his neck and had dragged him giving beatings inside

the house. Thereafter, she went out of the house to an unknown place.

After some time, her tenant Julli informed her that Akash was not

responding. When she went to the Mahavir Singh's house and examined

Akash, he was dead. Ligature marks were found on his neck. She

suspected Pinki to have killed Akash by strangulating him with 'chunni'

put around his neck. She deposed in the Court that on 25.02.2010 at about

09.00 A.M., Akash went for tuition and returned at about 11.00 A.M.

Thereafter, he with his three step-brothers started roaming in a rickshaw in

the area. After some time, Akash went for toilet behind the jhuggi and at

about 02.30 P.M., she saw Pinki bringing Akash from behind the jhuggi.

She had taken Akash inside the jhuggi after beating him. After half an

hour, she saw her (Pinki) coming out from the jhuggi and running towards

the market. She returned at about 04.00 P.M. and raised alarm that Akash

was lying inside the jhuggi in sleeping mode and was not responding. On

hearing the news from Julli, she went inside the jhuggi and saw a crowd

there. When she made enquiries from Pinki as to what had happened, she

expressed ignorance and she noticed that there were ligatures mark on the

child's neck. When she enquired from Pinki about that, she told that these

were due to hitting of the ball. On the next day, when relatives gathered

and removed the cloth from the dead body, they also noticed ligature

marks and questioned Pinki. On hearing that, she attempted to flee the

spot on the pretext to go to toilet. Thereafter, Mahavir Singh informed the

police at No. 100. Pinki recovered the 'chunni' from underneath the bed

and it was seized by the Investigating Officer. In the cross-examination by

APP after Court's permission, she admitted the suggestion that the

accused had wrapped a 'chunni' around Akash's neck and had dragged

him inside the house after beating.

5. From the inception, the appellant's case was that she was not

instrumental in causing Akash's death. After she scolded Akash for not

paying attention to his studies for the examination, which were to take

place next day, he committed suicide in the house in her absense. Defence

taken by her appears plausible and fair. It seems that Pinki is the victim of

circumstances being step-mother of the deceased child. Akash was

residing with Pinki at her house after the death of his natural mother since

long. Pinki had given birth to three children after her marriage with

Mahavir Singh. The child was studying in 8th standard in a Government

School and was getting tuitions as well. When Akash returned after taking

tuition classes and was roaming on the rickhshaw with Pinki's children,

she (Pinki) rebuked him and asked him to pay attention to his studies as

his examinations were going to take place next day. It demonstrates that

Pinki was concerned with the welfare and progress of the child and

wanted him to pay proper attention to his studies instead of roaming on

the rickshaw. PW-6 (Murti Devi)'s assertion in her deposition that Akash

was beaten and dragged by putting 'chunni' around his neck does not

inspire confidence. Her presence at that time seems doubtful as she did

not intervene to restrain Pinki to give beatings to Akash. Even after Akash

was allegedly taken inside the house, she did not bother to enquire about

his well-being and went to the spot only after getting some information

about Akash from Julli. On that day she did not lodge any complaint with

the police regarding the conduct and attitude of the appellant in giving

beatings and strangulating the child. The other family members were duly

informed and the body was kept for cremation for the next day to await

arrival of the grandfather of the child. No plausible explanation has been

given for inordinate delay in lodging report with the police. The FIR in

criminal case is a vital and valuable piece of evidence though may not be

substantive piece of evidence. The object of insisting upon prompt

lodging of the FIR in respect of the commission of an offence is to obtain

early information regarding the circumstances in which the crime was

committed, the names of actual culprits and the part played by them as

well as the names of eyewitnesses present at the scene of occurrence.

Undoubtedly, the promptness in lodging the FIR is an assurance regarding

truth of the informant's version. A promptly lodged FIR reflects the first

hand account of what has actually happened, and who was responsible for

the offence in question. Again, the FIR was not lodged on Murti Devi's

complaint. The police machinery came into motion on getting information

from Mahavir Singh about the death of his child Akash. He did not

suspect Pinki to have caused Akash's death. The Investigating Officer did

not record his statement to ascertain the truth. He rather appeared in

defence on behalf of the appellant as DW-1 and fully supported her

version. He testified that Akash was poor in studies. His wife had asked

him to sit for studies on 25.02.2010 as there were exam on the next day.

He left for his duties at 11.00 A.M. At 04.30 P.M., he got a telephonic

message that Akash had committed suicide. He further deposed that when

police came on the spot next day, he and his wife told them that Akash

had committed suicide. Murti Devi who was not happy with his second

marriage and was not on visiting terms with them demanded a sum of `

50,000/- or else she will lodge complaint with the police. In the cross-

examination, he again asserted that he had not lodged any complaint

against the appellant. He fairly admitted that Akash never attempted to

commit suicide and volunteered to add that he used to extend threat to do

so. There are no sound reasons to discard the testimony of DW-1 who was

natural father and had all love and affection for the child. Being the real

victim who has lost his young son, he was not expected to support the

appellant for the grusome incident. It is well settled that defence witnesses

deserve to be given due weightage and their testimony is to be treated at

par with that of prosecution witnesses.

6. PW-6 (Murti Devi) has made vital improvements in her

deposition before the Court. Her testimony has not been corroborated by

direct or circumstantial evidence. Post-mortem examination report

(Ex.PW-13/A) proved by PW-13 (Dr.Guru Praksh Devgun) falsifies her

version that Akash was given beatings by Pinki. In the post-mortem

examination report (Ex.PW-13/A), no external injuries were found over

the body. The cause of death was 'asphyxia from ante-mortem ligature

hanging'. In the cross-examination, PW-13 admitted that the height of the

boy was 5 ft. and if one is hanged forcibly, there would be some external

injuries on the part of the body.

7. At no stage prior to the incident, there was any complaint

against the conduct and behaviour of the appellant for treating the child in

a cruel manner. PW-6 (Murti Devi) admitted in the cross-examination that

Pinki used to look after Akash and he never made any complaint to her.

She was not sure as to how Akash died. She stated that she could not say

if Akash was hanged by Pinki or he himself committed suicide. It is

unbelievable that Pinki who was taking care of the child from the very

beginning and had desired him to pay attention to his studies would be so

cruel to hang him inside the house in the presence of her own small

children. PW-6 (Murti Devi) has admitted that after Akash was taken

inside the house, Pinki had gone to market. It is quite possible that during

this period Akash who was an innocent/ immature child of thirteen years

got enraged after he was rebuked by Pinki and committed suicide. This

possibility, under the circumstances cannot be ruled out. The prosecution

did not examine any witness from neighbourhood to find out the conduct

and behaviour of the appellant towards the child and other family

members. Adverse inference is to be drawn against the prosecution for not

examining Julli who lived as a tenant in the premises in question. DW-1

(Mahavir Singh), her husband claimed that there were cordial relations in

the family. She had no motive to kill Akash. Recovery of 'chunni' on the

next day from underneath the bed is highly doubtful.

8. The prosecution case is based upon circumstantial evidence

alone. It is well settled that in cases where the evidence is of a

circumstantial nature, the circumstances from which the conclusion of

guilt is to be drawn should in the first instance be fully established, and all

the facts so established should be consistent only with the hypothesis of

the guilt of the accused. Again, the circumstances should be of a

conclusive nature and tendency and they should be such as to exclude

every hypothesis but the one proposed to be proved. In other words, there

must be a chain of evidence so complete as not to leave any reasonable

ground for a conclusion consistent with the innocence of the accused and

it must be such as to show that within all human probability the act must

have been done by the accused.

9. The circumstances from which the conclusion of guilt is to be

drawn should be fully established. It is a primary principle that the

accused 'must be' and not merely 'may be' guilty, before a Court can

convict and the mental distance between 'may be' and 'must be' is long

and divides vague conjectures from sure conclusions.

10. In the instant case, on close analysis of all the circumstances

brought on record it cannot be said with certainty that it was the appellant

Pinki who in every eventuality committed the crime. If two views are

possible, the view favouring the accused is to be preferred.

11. In the light of above discussion, the appeal filed by the

appellant is accepted. The conviction and sentence of the appellant are set

aside. The appellant is directed to be released forthwith if not required in

any other case. The Trial Court record be sent back forthwith.

(S.P.GARG) JUDGE AUGUST 26, 2013/tr