IN THE COURT OF SH. [ENTITY], ADDL. SESSIONS JUDGE DELHI SC No 35/2007 The State Versus [ENTITY] S/o [ENTITY] R/o BB-448, [ENTITY], [ENTITY], Delhi FIR No. 425/2006 [ENTITY] U/[SECTION] [ACT] ORDER ON SENTENCE 1. Vide my judgment dated 13.2.2008, I had convicted accused [ENTITY] U/[SECTION] [ACT]. Today I have heard Addl P.P. for the State and ld Amicus Curiae Ms [ENTITY] on the point of sentence. It is submitted by ld Amicus Curiae that convict is not a previous convict and he is the only son of his old parents who are financially dependent upon him. It is submitted that convict is not a eunuch but used to live with 1 eunuchs and used to do the job of singing and dancing. On the other hand, Addl P.P. for the State has submitted that there are only two sentences prescribed under [SECTION] [ACT] i.e. (1) capital sentence and (2) imprisonment for life, therefore, court should pass befitting sentence on the convict. 2. U/[SECTION] [ACT], only two sentences have been prescribed i.e. (1) capital sentence and (2) imprisonment for life. To award former sentence, Court is required to give special reasons. However, keeping in view totality of the facts and circumstances of the case, present case is not such which qualifies to be rarest of rare cases which may warrant award of capital sentence. Second alternative is imprisonment for life. When the case is not fit for capital sentence, the only sentence which Court can pass on the convict is imprisonment for life i.e. minimum sentence. 3. Keeping all the facts and circumstances of the case, I sentence convict [ENTITY] to undergo imprisonment for life and also impose a fine of Rs 2000/- for offence under [SECTION] [ACT]. In default of payment of fine, he shall undergo SI for three months. A copy of the judgment and order on sentence be given to the convict free of cost so as to 2 enable him to file an appeal, if he so desires. Jail warrants be prepared for the convict to undergo sentence awarded to him. File be consigned to record room. Announced on the Open Court on 14.02.2008 ([ENTITY] 3 IN THE COURT OF SH. [ENTITY], ADDL. SESSIONS JUDGE DELHI SC No 35/2007 The State Versus [ENTITY] S/o [ENTITY] R/o BB-448, [ENTITY], [ENTITY], Delhi FIR No. 425/2006 [ENTITY] U/[SECTION] [ACT] Arguments heard on 7.2.2008 Judgment pronounced on 13.2.2008 JUDGMENT
1. Prosecution has filed the present challan against accused [ENTITY] U/[SECTION] [ACT]. Facts leading to filing of the challan and as alleged therein are that accused [ENTITY] is eunuch and he along with one [ENTITY] used to reside in H. No. [ENTITY], [ENTITY], Pahar Ganj, Delhi. One [ENTITY], also an eunuch, used to reside in adjoining room. The portion in which accused used to reside is situated on the third floor of the house No BB- 448, [ENTITY], Paharganj On 23.12.2006 at about 6.30 or 7.00 p.m. Smt [ENTITY], sister of the accused, along with her husband had gone to the house of the accused. After dropping [ENTITY], her husband allegedly left for his duty. When she went upstairs she found that arguments had ensued between [ENTITY] and [ENTITY]. The issue of arguments was that accused [ENTITY] had retained a boy from Sadar Bazar in the house which was objected to by [ENTITY]. According to the prosecution case, accused was insisting that he will keep that boy along with him and would not allow deceased [ENTITY] to live with him. However, accused [ENTITY] along with [ENTITY] and [ENTITY] went to purchase some jewellery in the Market. They allegedly came back to the house after some time. It is alleged that accused [ENTITY] went upstairs and [ENTITY] followed him. When Smt [ENTITY] reached upstairs, she allegedly found that accused [ENTITY] was strangulating [ENTITY] with both his hands. Therefore, she allegedly cried for help and when she allegedly tried to save [ENTITY], she was pushed back by accused [ENTITY]. In the meantime, [ENTITY] is also alleged to have reached the place of incident. [ENTITY] allegedly died of strangulation. Accused [ENTITY] is alleged to have threatened [ENTITY] that he would implicate her in the murder case if any alarm was raised by her. Information was allegedly given to the relatives of the deceased who informed the police. Police reached at the spot and removed the dead body of [ENTITY] for postmortem examination. After receipt of postmortem examination report, cause of death was opined to be asphyxia on account of manual strangulation. Accordingly a case under [SECTION] [ACT] was registered. Accused was arrested. Statements of the eye witnesses [ENTITY] and [ENTITY] under [SECTION] [ACT] were got recorded by Metropolitan Magistrate. Statements of witnesses were also recorded during investigation of the case. Nail Clippings of the deceased were also taken which were sent for examination to FSL after investigation of the case, police came to the conclusion that [ENTITY] had strangulated deceased [ENTITY]. Accordingly, report U/[SECTION] [ACT] for offence under [SECTION] [ACT] was filed against accused.
2. After compliance of [SECTION] [ACT] the case was committed to the Court of Session by ld. Metropolitan Magistrate. The case was marked to this Court for trial in accordance with law.
3. After hearing ld. Amicus Curiae for accused and ld. Addl. P.P. a charge under [SECTION] of [ACT] was framed against accused to which he pleaded not guilty and claimed a trial.
4. In order to prove its case prosecution has examined 19 witnesses. Out of these 19 witnesses PW-4 [ENTITY] and PW-5 [ENTITY] are alleged eye-witnesses for sake of appreciation of the case, it is necessary to summarise the evidence of these witnesses.
5. PW-5 [ENTITY] in her deposition has stated that accused [ENTITY] is son of her [ENTITY] andhe is a eunuch. According to her accused [ENTITY] had been residing in [ENTITY], [ENTITY], [ENTITY] on rent and one [ENTITY] had been residing with him for the last about eight years. According to her, [ENTITY] had been residing with accused as his husband . On 23.12.2006 [ENTITY] along with her husband [ENTITY] is deposed to have gone to the house of the accused at about 3 or 4 p.m. It is deposed that at that time accused [ENTITY] and [ENTITY], his husband, were not present in the room and therefore she and her husband [ENTITY] waited for the accused in the adjoining room. At about 5.00p.m. accused along with [ENTITY] is deposed to have come to their room and thereafter all sat in the said room and started talking to one another. [ENTITY], the landlady is also deposed to have come to collect rent from accused [ENTITY] who gave her Rs. 20/- According to her room of the accused was situated at the 2nd floor therefore after taking Rs. 20/- [ENTITY] went down stairs and [ENTITY] had also left the room to go to place of his work. [ENTITY], another eunuch, is also deposed to have been residing in the adjoining room and had also come and joined [ENTITY], [ENTITY] and [ENTITY] who were sitting there. It is deposed that accused told that his ring was with the gold smith at [ENTITY] and he wanted to bring that from him, therefore, he along with [ENTITY] and [ENTITY] went to the gold smith and came back after some time to the room of the accused. It is deposed that accused entered the room first and [ENTITY] was following him, whereas, [ENTITY] had gone to bathroom situated at the ground floor. When [ENTITY] entered the room of the accused, she had deposed that accused had caught hold of neck of the [ENTITY] and was pressing his neck with both his hands. In the meantime [ENTITY] is also deposed to have entered the room and requested the accused as to what he was doing but he threatened her to keep quite. It is deposed that [ENTITY] become unconscious lying on the bed therefore [ENTITY] went out to call a doctor from her nearby clinic. The doctor after checking [ENTITY] declared him dead. It is deposed that accused thereafter threatened [ENTITY] not to tell what she had seen in the room to any one, rather she should represent to the people that [ENTITY] had fallen down from the bed because of which he had gone unconscious. Accused is deposed to have gone out side the room and informed the brother in law of [ENTITY] who is deposed to have informed the police. Accused is deposed to have requested the relative of [ENTITY] to take his dead body to the native village for burial nd not to indulge in calling police but they refused. Ultimately it is deposed that at about 2.00 or 2.30 a.m. Police came. It is deposed that accused [ENTITY] committed murder of [ENTITY] because another boy had been kept by accused who use to come at his room which deceased did not like and objected to the same. On account of these facts accused [ENTITY] is deposed to have pressed the neck of deceased [ENTITY] as a result of which he died.
6. [ENTITY] PW-4 [ENTITY] has also corroborated PW-5 [ENTITY] on all the details of incident as deposed by PW-5. Her testimony is not reproduced inasmuch as she has corroborated the version given by PW-5.
7. PW-9 is [ENTITY]. She is the landlady of accused [ENTITY]. She has testified that she is the owner of H. N. BB-448, [ENTITY]. She has further stated that she had let out a room to accused [ENTITY] in the abovesaid house at third floor. She has also stated that accused along with [ENTITY] had been residing in the said room for the last two and a half year prior to the occurrence. According to her a separate room had been let out to [ENTITY]. It is deposed that on 23.12.2006 at about 6.30 p.m. she had gone to accused [ENTITY] to collect rent as she wanted money and when she reached the room of the accused, she saw that [ENTITY], [ENTITY], [ENTITY] and [ENTITY] were sitting. Accused is deposed to have paid Rs.20/- as part of the rent and assured her to pay remaining rent within 2/3 days. She is deposed to have left the room for hospital leaving accused, [ENTITY], [ENTITY] and [ENTITY] sitting in the room. [ENTITY] is also deposed to have left the room. At about 8.30 p.m. accused along with his sister [ENTITY] and [ENTITY] were standing outside. Accused is deposed to have told [ENTITY], the landlady, "Auntie pata nahin [ENTITY] ko kya ho gaya hai, thanda ho gaya hai" . She is deposed to have called doctor from the colony who declared [ENTITY] as dead. It is deposed that relative of [ENTITY] were informed who reached the spot and wanted to take dead body of [ENTITY] to his native village but somebody informed the police and media. She has stated that on inquiry she was told that [ENTITY] was lying on the bed and had fallen down and had died. This witness was declared hostile on certain facts by the Addl P.P. and was cross examined. However, in her cross examination she has denied that accused had told her that he did not want to keep [ENTITY] with him but [ENTITY] wanted to live with him and on account of that a quarrel had taken place between accused and deceased. She has also denied that when she entered the room of the accused [ENTITY] was lying on he bed, on seeing [ENTITY] he become angry and pressed his neck with both of his hands because of which [ENTITY] had gone unconscious or that these facts had been told to her by [ENTITY] and [ENTITY]. She has also stated that she has not stated to the police that [ENTITY] and [ENTITY] had disclosed that accused had asked them to represent that [ENTITY] had fallen down from the bed and suffered attack. She has also denied that she has stated to the police that [ENTITY] had died due to pressing of his neck by the accused.
8. PW-10 is [ENTITY], who is the husband of PW-5 [ENTITY]. In his testimony he has deposed that he and his wife had gone to the house of the accused [ENTITY], [ENTITY], [ENTITY]. Accused [ENTITY], [ENTITY] and [ENTITY] are deposed to have gone to gold smith to get a pledged ring from him. According to him, at about 3.00 or 4.00 p.m. accused was not present there however after half an hour he came at his house. [ENTITY] had also reached at 6.00p.m. All these persons were talking to one another in the meantime landlady [ENTITY] is stated to have come to collect the rent from accused. Accused is deposed to have paid Rs. 20/- to [ENTITY] and she is deposed to have left the room and this witness is also deposed to have left the room of the accused to go to Rajiv Gandhi Cancer Hospital, where he had been employed. At about 9.00p.m. he is deposed to have made a call to his wife and she is deposed to have told him that [ENTITY] had suffered an attack, therefore he reached at the room of the accused where he found tht [ENTITY] and [ENTITY] and relatives of [ENTITY] were present. On inquiry from his wife she is deposed to have stated that [ENTITY] had suffered an attack due to which he had fallen down from the bed and died. It is also stated by this witness that accused had told his wife and [ENTITY] not to disclose the fact that he had actually killed [ENTITY].
9. PW-11 is [ENTITY]. He is he relative of [ENTITY]. He has deposed that on 23.12.2006 at about
10.p.m. He had received a telephonic call from his nephew [ENTITY] about death of [ENTITY] ,therefore, he along with his persons reached at H.No. [ENTITY], [ENTITY], [ENTITY]. His relative [ENTITY] is deposed to have been residing with accused in the aforesaid house. On reaching there, accused [ENTITY] is deposed to have told him that [ENTITY] had died due to sudden chest pain but he suspected something foul. Accused is deposed to have pursuaded him not to waste time and take the dead body of [ENTITY] to his native village and not to enter into police matters. He is deposed to have given a ring at No. 100. Police is deposed to have come at the spot and removed the dead body to Mortuary of Maulana Azad Medical College for postmortem examination. He is deposed to have made statement to the police Ex. PW11/A. After postmortem examination, he is deposed to have received the dead body of [ENTITY].
10. PW-13 Dr [ENTITY] who had been running a clinic in the locality. He was called by [ENTITY] to check [ENTITY]. In his testimony has deposed that he was running his private clinic at BB-453, [ENTITY]. On 23.2.06 at about 7.30 p.m. two eunuchs are deposed to have come to his clinic and asked him to accompany them as one person was seriously ill. He is deposed to have accompanied them to [CASE NUMBER] [ENTITY], [ENTITY] and found a person lying on a cot. He is deposed to have checked that person and found him dead.
11. PW-12 SI [ENTITY] along with PW-15 Ct [ENTITY] are deposed to have reached the spot i.e. [ENTITY], [ENTITY], [ENTITY] on receipt of DD No 4A Ex PW3/A and found [ENTITY] lying dead on a cot. They are deposed to have sent the dead body for postmortem examination. After postmortem, dead body is deposed to have been handed over to heirs of deceased. On the basis of postmortem, PW-12 SI [ENTITY] is deposed to have prepared a tehrir and got the FIR recorded U/[SECTION] [ACT]. He has also testified that accused [ENTITY] was arrested by Inspector [ENTITY] on 30.12.06 vide memo Ex PW12/B. His personal search was conducted vide memo Ex PW12/C.
12. PW-1 Dr [ENTITY] had conducted postmortem examination on the dead body of deceased [ENTITY] and had observed the following injuries on he person of deceased :-
(1) Contused abrasion 3.4 x 1.1cm reddish present over right side of mid of neck 3.4 cm outer to the thyroid cartilage.
(2) Multiple abrasion cresentic shape in an area 3 x 2.1 cm present over the mid front of neck 0.4 cm inner to injury No 1.
13. According to the Doctor, cause of death was asphyxia consequent upon manual strangulation via injury No 1 & 2. All the injuries were opined to be ante mortem and fresh in duration. According to him, injury Nos 1 & 2 were sufficient to cause death in ordinary course of nature individually as as well as collectively. He has proved postmortem report as Ex PW1/A.
14. PW-2 Hc [ENTITY] had recorded FIR in this case. He has proved copy of the FIR Ex PW2/B and endorsement as Ex PW2/A. PW-3 Hc [ENTITY] has proved copy of DD No 4A regarding death of [ENTITY] as Ex PW3/A. According to PW-6 SI [ENTITY], no chance print were found at the spot nor any other incriminating article was found. He has proved report prepared by him as Ex PW6/A. PW-7 has also deposed that when he along with PW-6 reached the spot, a dead body of a person was lying on the cot and SI [ENTITY] along with his staff was present there. He is deposed to have taken photographs. He has proved photographs as Ex PW7/1 to 4 and their negatives as Ex PW7/5 to 8. PW-14 Hc [ENTITY] has proved PCR form as Ex PW14/A regarding wireless message received in respect of death of [ENTITY] in suspicious condition. PW-16 Hc [ENTITY] was working as MHCM on 22.1.07. He has testified that On 22.1.07 Inspector [ENTITY] had deposited two plastic jars sealed by the seal of Department of Forensic Medicine, MMC, New Delhi along with two sample seals. He is deposed to have deposited the same in the malkhana vide entry at Sl No 2037 in register No 19. On 21.2.2007, said articles are deposed to have been sent to FSL, Rohini through [ENTITY] vide [CASE NUMBER]. PW-18 [ENTITY] has also confirmed the same fact. On 17.5.07 result along with two parcels sealed with seal of FSL SB Delhi are deposed to have been received by him through Ct [ENTITY]. He is deposed to have made entry in register No 19 in this regard and handed over the report to IO. He has proved copy of register No 19 as Ex PW16/A and copy of RC as Ex PW16/B.
15. PW-19 Sh [ENTITY], ld M.M. has testified that an application Ex PW19/A duly marked to him was presented before him by Inspector [ENTITY] for recording statement of eye witnesses [ENTITY] and [ENTITY], therefore, he recorded statement of [ENTITY] Ex PW4./A and that of [ENTITY] Ex PW19/B U/[SECTION] [ACT]
16. PW-17 Inspector [ENTITY] is IO of the case who has testified that on investigation being assigned to him, he received tehrir, copy of FIR, inquest papers, photographs and statements of witnesses recorded by SI [ENTITY]. He is deposed to have gone to H.N. [ENTITY], [ENTITY], [ENTITY] and recorded statement of witnesses, namely, [ENTITY] and [ENTITY]. On 20.12.06 he is deposed to have prepared site plan Ex PW17/A at the instance of [ENTITY], arrested accused vide memo Ex PW12/A and conducted his personal search vide memo Ex PW12.B. Accused is deposed to have made disclosure statement Ex PW17/B. He is deposed to have moved an application for recording statement of witnesses U/[SECTION] [ACT] On 3.1.07 and statement of [ENTITY] and [ENTITY] was got recorded by Sh [ENTITY], ld M.M. On 22.1.07 he is deposed to have collected exhbits i.e. Two plastic jars sealed with the seal of Department Forensic Medicine, MAM College, New Delhi along with two sample seals which were taken into possession vide memo Ex PW17/C. He has proved inquest papers collectively as Ex PW17/D. Exhibits are deposed to have been sent to FSL on 21.2.07. After completion of the investigation, he is deposed to have filed challan in the court. He is deposed to have also obtained report of FSL and tendered the same in evidence as Ex PX.
17. Prosecution case is based on the evidence of two alleged eye witnesses, namely, PW-4 [ENTITY] and PW-5 [ENTITY]. If their testimony is found reliable then it could be said that it was the accused who had strangulated the deceased. If their testimony is not found reliable, certainly it affects the prosecution case. Their testimony has already been set out in earlier part of the judgment, therefore, it need not be reproduced here.
18. It has been argued on behalf of the State that PW-5 [ENTITY] stands in relationship of sister of the accused, therefore, when a sister is deposing against a brother, presumption is that her testimony is reliable and convincing. He has also argued that [ENTITY] was immediate neighbour of the accused, therefore, she is also a natural witness. It is further argued that no animus has been imputed to these witnesses by the accused, therefore, their testimony is reliable and convincing.
19. On the other hand, ld Amicus Curiae for accused has argued that testimony of PW-4 and 5 is not reliable because they were detained by the police in the Police Station and under coercion their statement was got recorded U/[SECTION] [ACT] Secondly, it is argued that place from where accused had been arrested is a crowded area but neither any independent witness has been examined nor any other person had heard the alarm raised by the witnesses, therefore, their testimony can not be said to be reliable.
20. PW-5 Ms [ENTITY] is daughter of [ENTITY] of accused and stands in relationship of a sister. PW-10 [ENTITY] in his testimony has specifically stated that he had dropped [ENTITY] at the residence of accused on the day of incident and had left the house when they were present. Even the landlady PW-9 [ENTITY] has stated that deceased had died and accused was telling her as to what had happened to the deceased and he had gone cold. She had even called Dr [ENTITY] ( PW-13) who has testified that he had gone to the house No [ENTITY], [ENTITY], [ENTITY] where a person, namely, [ENTITY] was lying died on a cot and after checking him, he had declared him a dead. In view of testimony of these witnesses, it stands proved on record that PW-4 [ENTITY] and PW-5 [ENTITY] were present at the spot when the incident had taken place. Therefore, it can not be said that PW-4 & PW-5 have been projected as eye witnesses.
21. It should be kept; in mind that accused has not disputed his presence at the spot, on the date, time and place of incident. Even he has not disputed that [ENTITY] and [ENTITY] were present at the time of alleged incident. Ms [ENTITY] stands in relationship of a sister of accused and [ENTITY] was immediate neighbour of the accused. No illwill, no motive, no hostility has been imputed by the accused to these witnesses. Therefore, I do not find that there was any motive on the part of PW-4 & 5 to depose against accused.
22. So far as argument of ld Amicus Curiae that PW-4 & 5 were detained in the Police Station and under coercion their statement U/[SECTION] [ACT] was got recorded is concerned, in her cross examination PW-4 [ENTITY] has denied that she was threatened by the police that if she did not give statement, she would be implicated in this case. Similarly PW-5 [ENTITY] in her cross examination has also denied that she was detained in the Police Station. She is specific that she was freed by the police the next morning. When both these witnesses in their testimony are specific that they were not pressurized by the police in any manner and they had stated what they had seen on the day of incident, I am of the view that it can not be said that their testimony is outcome of any coercion on the part of police. They have appeared in the witness box and have denied the suggestion that in any manner they were coerced by the police. No motive has been imputed to Pws 4 & 5 by the accused. In his statement U/[SECTION] [ACT] in answer to a question ' as to why witnesses have deposed against him', he had stated that he did not know as to whey witnesses have deposed against him.
23. Both these witnesses have specifically stated that in their presence accused had placed both his hands on the neck of [ENTITY] as a result of which he had become cold. This circumstance was specifically put to the accused in his statement U/[SECTION] [ACT] and his version was that he had only denied this fact and had stated that witnesses have deposed against him falsely. It is not his case that [ENTITY] was lying dead when he entered his room. In view of the fact that PW-5 [ENTITY] is closely related to the accused and PW-4 is a natural witness who had been residing immediately adjoining the room of accused, in the absence of any enmity or motive on their part to falsely implicate the accused, it is difficult to disbelieve their testimony. I, therefore, come to the conclusion that testimony of PW-4 [ENTITY] and PW-5 [ENTITY] is reliable and convincing.
24. It has been argued by Addl PP that version of PW-4 & 5 is duly corroborated by the medical evidence, therefore, there are no reasons to disbelieve them. On the other hand, ld Amicus Curiae has argued that when the witnesses are not reliable, merely because medical evidence supports them, their testimony would not become reliable and convincing.
25. In his testimony PW-1 Dr [ENTITY] who had conducted postmortem examination on the dead body of [ENTITY], has specifically stated that there was contused abrasion of 3.4 x 1.1 cm reddish present over right side mid of neck 3.4 cm outer to the thyroid cartilage. According to him the second injury present on the dead body was multiple abrasion of cresentic shape in an area of 3 x 2.1 cm over the mid front of neck 0.4 cm inner to injury No 1. According to him, there was effusion of blood in soft tissues and muscle of neck underneath injury No1 & 2 with fracture of right superior horn of thyroid with effusion of blood at fractured site. He has further testified that there was sub conjuctival haemorrhage in both the eyes and face was congested. In his opinion, death was due to asphyxia consequent upon manual strangulation via injury No 1 & 2. All the injuries were opined to be antimortem and sufficient to cause death in ordinary course of nature. Both the witnesses PW-4 and 5 have deposed that accused had pressed throat of deceased with both his hands as a result of which [ENTITY] had died. Their version is corroborated by the medical evidence. Force applied by the accused can be judged from the fact that force caused fracture of right superior horn of thyroid. Therefore, testimony of PW-4 & 5 is duly corroborated by the medical evidence and I do not find any reasons to disbelieve their testimony.
26. It has further been argued on behalf of accused that deceased was a well built man and it was not possible for a person like accused to strangulate him. She has further argued that according to report of FSL, nail clippings of the deceased were sent to FSL, but no traces of skin could be found thereon. It is argued that if accused had strangulated [ENTITY], certainly resistance would have been put up by [ENTITY] and in that eventuality he could have given scratches and traces of skin could have come on the nail clippings of the deceased.
27. I am unable to accept this contention.
Photographs of the place of incident have been proved as Ex PW7/1 to PW7/4. Deceased does not seem to be stoutly built person. Even if it be taken that deceased was in good faith, then it depends upon the circumstance under which he was strangulated by the accused. When the accused applied force with both his hands, certainly it would have caused suffocation to the deceased making him helpless to put up resistance. In that eventuality it was not possible for him to bruise the face of accused with his nails. Therefore, merely because skin of the accused was not present on the nail clippings of the deceased is not sufficient to discredit the ocular witnesses.
28. It should be noted that PW 4, PW5, PW 8 and PW 11 have deposed about the conduct of accused soon after the incident. These witnesses have deposed that accused had requested PW-4 & 5 that if anybody asked them as to how [ENTITY] had died, they should disclose that he had suffered a fit as a result of which he had fallen down from the bed and had died. He had even threatened Pws 4 & 5 that either they should represent the facts told to them by him or he would implicate them in this case. Even his conduct was abnormal when PW-11 reached at the place of incident. The accused had requested him not to involve himself in the police matters and he should hire a vehicle to take the dead body of [ENTITY] to his native village. PW-8 [ENTITY] has also deposed that accused had told him that [ENTITY] had suffered a fit and had fallen down from the cot as a result of which he died and he insisted upon him to take the dead body of [ENTITY] to his native village. Therefore, subsequent conduct of the accused in setting up a false strong circumstance of death of [ENTITY] and his insistence on taking his dead body to his native village for burial are also important circumstance of immense evidentiary value. The evidence goes to prove that accused was guilty of murder of [ENTITY].
29. It has further been argued by ld Amicus Curiae for the accused that there was no motive on the part of the accused to commit the offence and in the absence of proof of motive on his part, it can not be said that he was to gain something out of the death of [ENTITY]. It is argued that it is the duty of the prosecution to prove motive on the part of accused in committing the crime and when no motive has been proved on the part of accused, case of the prosecution is not beyond suspicion. On the other hand, it has been argued by ld Addl P.P. for the State that it is not necessary for the prosecution to prove motive on the part of accused nor absence of proof of motive on his part has any effect on the prosecution case.
30. In [PRECEDENT], it has been held that it is not incumbent on the part of prosecution to prove motive. In another case reported as [PRECEDENT], it has been held that prosecution is not bound to prove motive for commission of the offence by the accused inasmuch as motive is always known to perpetrator of the crime only it may not be known to others. In another case reported as [PRECEDENT], the consequences regarding failure on the part of prosecution to prove motive on the part of accused have been discussed. Third lordships have held that failure of the prosecution to establish motive for crime does not mean that entire prosecution case has to be thrown over the board. It was held that it only casts a solemn duty on the Court to scrutinize the evidence on record with utmost care, particularly, testimony of eye witnesses with greater care. In my considered opinion, proof of motive is only an additional factor which helps the Court to satisfy its judicial conscience that conclusion drawn by it on the basis of evidence on record are consistent with guilt of the accused. Neither it is sine qua non that the prosecution in all eventualities must prove motive on the part of accused to commit crime nor its absence in any manner affects the prosecution case. Therefore, I am of the view that argument of ld Amicus Curiae is not tenable.
31. Even otherwise if I scrutinize the evidence on record, motive on the part of accused is discernable from the evidence on record. PW 4 & PW-5 both have stated that accused had been living with deceased [ENTITY] as wife and husband . Deceased [ENTITY] was a male wheres accused [ENTITY] is an eunuch. If I correctly understand the meaning of relationship of wife and husband between a male and eunuch, it is an indication of existence of unnatural sexual relationship between the two. PW-8 [ENTITY] in his testimony has specifically stated that 15 days prior to the incident, accused had come to his house and had requested him to send [ENTITY] to his native village as he did not want to keep him with him. There is no reasons to disbelieve the testimony of this witness. Even PW-4 and PW-5 both have stated that accused had brought another boy to reside with him as he was no longer interested that [ENTITY] should live with him in his room. Since another boy used to visit accused, it was not relished by deceased [ENTITY] and it was a cause of quarrel and squabbling between the two. It is in evidence that accused did not want that deceased [ENTITY] should live in his room any longer. Accused wanted to get rid of the company of the deceased whereas deceased was obdurately persisted in living with accused. Because of this reason, there used to be quarrel and squabbling between the two. In my considered opinion to get rid of the company of [ENTITY] was the motive on the part of accused. In my opinion, it can not be said that prosecution has not led any evidence as to the motive which prompted the accused to commit the offence. Moreover, accused has also not led any evidence in his defence. No other point has been argued.
32. On the basis of evidence on record, it clearly stands proved on record that accused and deceased had been living in the same room. It also stands proved on record that on 23.12.06 at about 6.30 or 7.00 p.m. accused caught hold of neck of the deceased and squeezed it as a result of which right superior horn of thyroid was fractured. It also stands proved that because of this injury, he died and these were the injuries which were caused by the accused intentionally. It also stands proved on record that injuries which accused had caused intentionally were sufficient in ordinary course of nature to cause death. Accordingly I hold that prosecution has proved its case against accused beyond reasonable doubt that it was the accused who committed murder of deceased [ENTITY]. Accordingly, I hold accused [ENTITY] guilty U/[SECTION] [ACT] and convict him therefor.
Announced on the Open Court on 13.02.2008 ([ENTITY]