Delhi District Court
State vs . on 12 May, 2015
IN THE COURT OF SH. LOKESH KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE-04 & SPECIAL JUDGE (NDPS) ACT
SOUTH EAST DISTRICT: SAKET COURTS: DELHI
Sessions Case No. 188/2010
ID No. 02406R0158812010
FIR No. 26/2010
U/s. 302 IPC
PS : Sangam Vihar
State
Vs.
Madan Kumar,
S/o Sh. Mahavir Singh,
R/o Village Nangla Sumer,
PS Ghangeri, District Aligarh (UP). ..........Accused
Instituted on : 28.05.2010
Argued on : 28.04.2015
Decided on : 12.05.2015
1 Accused Madan Kumar has been prosecuted for committing murder of
Yashoda u/s 302 IPC.
2 As alleged, the accused was residing in the house of his uncle Rambir
at Sangam Vihar, Delhi, who was having four daughters, namely, Rajesh Kumari,
Chanderkala, Hemlata and Yashodha (since deceased).
3 It was further stated that Yashoda was in love with a boy named
Bhuvneshwar and on 28th January 2010, at about 11:30 am, she was found in an
unconscious condition in her room at the first floor by her sister Rajesh Kumari and
hence, she was taken to the hospital at Majidia Hospital 01:35 pm, where she was
declared "brought dead". As per the report of the Autopsy Surgeon, the cause of her
death was due strangulation and smothering.
4 Case projected by the prosecution is that upon receipt of DD No. 17-A at
01:50 pm at PS Sangam Vihar, Sub-Inspector Ajit Kumar had reached at Majidia
Hospital alongwith Constable Jiauddin, where it was revealed that Yashoda d/o
State Vs. Madan Kumar - SC No. 188/2010 1/88
Rambir Singh, aged about 20 years, r/o C-1/318/6, Sangam Vihar, New Delhi was
admitted there and the concerned doctor on duty had declared her as 'brought dead'.
He had also noted incomplete ligature and minor mark of injury on the right side of the
neck, on inspection of the dead body. At that time, father of the deceased and other
family members had raised no suspicion or foul play on anybody.
5 Inquest proceedings were also carried out and the postmortem on the
dead body of deceased Yashoda was got conducted. Autopsy Surgeon had opined
the cause of death as 'asphyxia as a result of ante-mortem smothering and
strangulation' which was sufficient to cause death in ordinary course of nature.
6 Statement of Sh. Rambir Singh, father of the deceased was recorded by
the Investigating Officer on 02nd February 2010, wherein he had stated that he was
having four daughters and a son.
7 It was further stated by him that accused Madan Kumar aged 25 years,
who was grandson of his uncle Ram Dayal was also residing with him in his house
since 10-12 years and he was helping him in his business. It was further stated that
his eldest daughter Rajesh Kumari aged 26 years was physically challenged, who
though married, but was residing in his house with him. His second daughter Chandra
Kala aged 23 years was doing the work at a Beauty Parlour. His third daughter
Yashoda (since deceased) aged 20 years was studying in B.Com as a private student
and his fourth daughter, namely, Hemlata, aged 12 years was studying in 7th
Standard.
8 The complainant had further stated that his daughter Yashoda (since
deceased) used to tell accused Madan to do some work and not to sit idle and this
advise was not tolerable to him and hence he used to tell Yashoda, "Not to speak too
much" and nobody else in the house used to say anything to him. For the last about 1
State Vs. Madan Kumar - SC No. 188/2010 2/88
month, there was tension between them and they (accused and deceased Yashoda)
were not on talking terms with each other.
9 It was further stated by the complainant in his complaint that his
daughter Yashoda had asked him many times, as to why he (complainant) was not
telling the accused to do some work as he remained idle the whole day and if he was
not working, why he was not being sent back to the Village.
10 Complainant had further stated that on 28th January 2010, at around
10.00 AM, he alongwith his wife Chanda and daughter Chandrakala had gone out in
connection with some work and at that time his daughter Rajesh Kumari and Yashoda
(since deceased) were left behind at home. Accused Madan Kumar had already gone
out of the house in connection with some work. At about 02:00 pm, one of his known
persons, namely, Dinesh had informed him that his child was not well and he was
asked to reach at Majidia Hospital immediately by him. Thereafter, upon reaching
Majidia Hospital, he found that his daughter had expired.
11 It was further stated by him that on inquiry, it was revealed that his
daughter Yashoda was found unconscious under the table in a room which was built
upstairs and on raising alarm by his another daughter Rajesh Kumari, Kamelsh, wife
of his brother Virender and other persons of locality had brought her to the Majidia
Hospital. At that time, his daughter Yashoda was having minor marks of injury on the
right side of neck, but he had not suspected anybody, being in state of shock, due to
sudden demise of his daughter.
12 It was further stated that now, after inquiring from his daughter Rajesh
Kumari, it was revealed that at about 11:00 am accused Madan Kumar had come to
the house from outside and Rajesh Kumari had seen him going upstairs and at that
time, Yashoda was in the room, built upstairs. After sometime, when Rajesh Kumari
State Vs. Madan Kumar - SC No. 188/2010 3/88
went upstairs in the kitchen, she had seen that Yashoda was lying under the table,
hence, she got frightened and raised an alarm. It was stated further that since then,
accused Madan Kumar had disappeared and he thereafter made inquiries about
Madan Kumar in the village as well as from all his relatives, but his whereabouts
could not be traced.
13 It was further stated that on 01st February, 2010, accused Madan Kumar
telephonically informed Harpal Singh (brother-in-law of the complainant) that he was
not repenting for whatever, he had done.
14 On 02nd February 2010, FIR for an offence under section 302 IPC was
registered against the accused, on the statement of complainant Rambir, father of
deceased and investigation was carried out by Inspector J. D. Meena, who had
inspected the place of occurrence and prepared the site map of the place of
occurrence i.e. room built up at the first floor of House No. C-1/318/6, Sangam Vihar.
He had recorded statements u/s 161 CrPC of the witnesses, namely, Rajesh Kumari
(elder Sister), Smt. Chanda (mother), Kamlesh (Aunt), Virender Singh (Uncle),
Hemlata (younger sister) Chandrakala (elder sister) and Smt. Neelam Chauhan
(neighbour).
15 On 07th February 2010 accused Madan Kumar was arrested from near
Pandey Ki Kothi, Mangal Bazaar Road, Sangam Vihar and his disclosure statement
was also recorded by the IO. Accused Madan Kumar had pointed out the place of
occurrence and he had also got recovered a yellow colour dupatta used in
commission of the offence from beneath the table lying in the said room. The said
dupatta was seized after sealing the same and at the instance of accused Madan
Kumar, the site map of the room was got prepared on 07th February 2010. Medical
examination of accused Madan Kumar was got conducted vide MLC No. 16407/2010,
State Vs. Madan Kumar - SC No. 188/2010 4/88
wherein the doctor concerned had noted an old scar mark over head and left ring
finger injury (one week back).
16 On 12th February 2010 a scaled site map was got prepared by the IO.
On 16th February 2010 the viscera of the deceased was sent to FSL for examination
and on 08th March 2010 the dupatta (weapon of offence) was deposited with Forensic
Department in AIIMS Hospital, New Delhi for obtaining subsequent opinion, which was
furnished by the Doctor on 08th April 2010.
17 The second opinion as to the cause of death was also obtained, as per
which the doctor concerned had given the following opinion:
"On examination of clothing and considering the finding as
mentioned in the MLC and postmortem we are of the considered
opinion that possibility of smothering and strangulation by using
alleged clothing in addition to manual force in this case cannot be
ruled out."
18 During investigation, the 'dupatta' was also sent to the FSL, Rohini on
13th April 2010 for further examination. IO/Inspector J. D. Meena had also obtained
details (i.e CDR and Customer Application Form from the concerned Nodal Officers) of
the mobile phone number 9971385141 of accused Madan Kumar, mobile phone
number 9999171551 of Harpal Singh and mobile phone number 9268467801 of
Bhuwneswar Dayal (friend of deceased Yashoda). On the analysis of the CDR of the
aforesaid mobile numbers, it was revealed that accused Madan Kumar had made a
telephonic call to Harpal Singh on his mobile number 9999171551 at 09:16 am on 28th
January 2010, which supported the disclosure statement of accused and the
statement of Gaya Parsad, son of Harpal Singh.
19 It was further stated in the charge sheet that on 30th January 2010 at
12:15 pm, a call was made from mobile phone number 9818279175 and on 01st
February 2010 at 05:51 pm, a call was made from mobile phone number 9958119987
State Vs. Madan Kumar - SC No. 188/2010 5/88
to the mobile phone number 9999171551 of Harpal.
20 It was further stated that from the phone number 9268467801 of
Bhuvneshwar Dayal, friend of Yashoda (deceased) had made 464 calls during the
period between 01st January 2010 to 28th January 2010 to the personal phone number
9289273027 pertaining to Yashoda (deceased) and on 28th January 2010 at 09:30 am,
there was a call on the mobile phone of Bhuvneshwar Dayal by Yashoda ( since
deceased).
21 It was further stated that on the analysis of the CDR of Bhuvneshwar
Dayal and Yashoda (since deceased), it was revealed that there was a deep love affair
between them, due to which they were continuously in contact with each other. It was
further stated that when the love affair between Yashoda and Bhuvneshwar Dayal was
revealed to Madan Kumar, he had opposed the same and he had repeatedly tried to
make Yashoda understand and refrain herself from indulging into any relations with
Bhuvneshwar, but when Yashoda did not discontinue her affair with Bhuveneshwar
Dayal, there was a verbal altercation between Yashoda and Madan Kumar, and due to
which since last two months, they were not even on talking terms.
22 It was further stated that on the other hand, Yashoda continued her
friendship with Bhuwneshwar Dayal and she wanted Madan Kumar to be sent out of
the house after putting pressure on him, as he was playing a hurdle between them.
Since, Yashoda had also insulted Madan Kumar in the presence of her family
members at that time and hence Madan Kumar wanted to take a revenge, hence, he
had committed the offence on 28th January 2010 at 11:00 am when he found Yashoda
alone at the first floor of the room, while she was cooking food, by pressing her mouth
and neck with her dupatta.
State Vs. Madan Kumar - SC No. 188/2010 6/88
23 After conclusion of investigation, the charge sheet was filed by the SHO
of PS Sangam Vihar in the Court of concerned Ld. MM on 07th May 2010. Thereafter,
case was committed to the Court of Sessions on 21st May 2010.
24 Accused was charged by the Learned Predecessor of this Court on 2nd
July 2010 for an offence under section 302 IPC, to which he had pleaded not guilty
and claimed trial. Hence, the prosecution was directed to lead its evidence.
25 To establish accusation against the accused, the prosecution had
examined 29 witnesses in all.
26 PW1 Dr. Sanjeev Lalwani, Assistant Professor, AIIMS, New Delhi
and Dr. Manish Goyal (PW-28), presently working as Consultant Radiologist at
Ramdev Diagnostic Center, Hanuman Garh, Rajasthan had conducted the
postmortem examination on the dead body of deceased Yashoda D/o Rambir Singh,
who was brought to AIIMS with alleged history of lying common unconscious below
table on 28.1.2010 at her residence and was subsequently taken to Majeedia Hospital
at 1.35 PM, where she was declared brought dead.
27 They had deposed that upon postmortem, rigor mortis was found
present all over the body. Eyes and mouth were closed. There was sub-conjunctival
haematoma present in outer canthi of both eyes with massiave petechial haemorrhage
in both eyes. White froth was also found present in the nostrils and nails were bluish in
collour and two pin head size petechial spots were found present over right cheek.
They had also deposed and proved the the following injuries found on the dead body
of deceased Yashoda and mentioned in the postmortem report Ex. P1/A as under:-
(a) Bluish contusion of size 2 x 1 cm over inner side of upper lip;
(b) Bluish contusion of size 2.5 x 1 cm over inner side of lower lip;
(c) Contused abrasion of size 1.2 x 7 cm over right side of neck;
State Vs. Madan Kumar - SC No. 188/2010 7/88
(d) Contusion of seize 1 x .5 cm over left angle of jaw, bluish in colour;
(e) Bluish contusion of size 1.5 x 1 cm over front of lower 1/3rd of left leg;
(f) Bluish contusion of size 1.5 x 1.5 cm over front of middle 1/3rd of right leg.
Both these witnesses had further deposed that on dissection of neck,
multiple hametomas of various sizes were found present in sub-cutaneous tissue and
muscle tissue of neck. There was fracture of hyoid bone on right side with
haematomas. Lymph nodes were also found intensely congested. Brain was showing
patches of sub arachnoid haemorrhage. Lungs were congested and edematous.
The cause of death in this case was stated to be "asphyxia due to ante
mortem smothering and strangulation which was sufficient to cause death in
ordinary course of nature".
Both these witnesses had further deposed that viscera was preserved
to rule out any intoxication. Clothings and blood samples in gauze piece were also
preserved and the same were handed over to IO.
The time since death was stated to be about 24 to 36 hours.
Both these witnesses had further deposed that pursuant to an
application moved by Inspector J. D. Meena, P S Sangam Vihar for seeking opinion
regarding nature of injuries sustained by the deceased Yashoda with a cloth i.e.
'dupatta,'. The had also examined the clothe provided in a sealed pullanda by the IO
and finding mentioned in MLC prepared at Majeedia hospital and in postmortem
report. In their opinion, the possibility of smothering and strangulation by using the
said cloth in addition to manual force in this case could not be ruled out. The clothing
were sealed and handed over to IO alongwith sample of seal. The opinion has been
exhibited as Ex.PW1/B.
State Vs. Madan Kumar - SC No. 188/2010 8/88
However, statement of PW1 Dr. Sanjeev Lalwani cannot be read in
evidence against the accused as this witness had not appeared on any occasion
thereafter for his cross examination by the accused.
In his cross examination, PW-28 Dr. Manish Goyal had deposed that
generally the possibility of presence of stains of saliva or the blood are found existing
on the wearing clothes of the deceased, in a case of smothering and strangulation and
generally the possibility of tearing of clothes, urination and/or defecation also existed
during the struggle, of any of the victim with the assailant during the process of
smothering. He had voluntarily stated that in the present case stains of saliva were not
found on the 'dupatta' examined by him and Dr. Sanjeev Lalwani as well.
PW-28 had further deposed that in the present case, they had only
examined the 'dupatta' and not the clothes worn by the deceased, to find out as to
whether there were stains of urination and defecation. They had only preserved and
sealed the clothes and had given the same to the IO.
28 PW-2 Mrs. Neelam had deposed that though she could not remember
the exact date or month, but it was a matter of last year (her statement was recorded
on 05th July 2011), she was present at her residence, when she heard some noise of
crying of children from the house of Ramvir, who was residing in her gali. She had
further deposed that she reached at Ramvir's house and saw that Yashoda, daughter
of Ramvir was lying unconscious on the floor. Smt. Kamlesh, Chachi of Yashoda and
many people of the locality had also gathered there. She had also deposed that she
had not noticed any injuries on her body and she had accompanied Smt. Kamlesh and
some other persons, in carrying Yashoda to Majidia Hospital and in the hospital doctor
had declared her 'dead'. She had further deposed that parents of Yashoda had also
reached there after they were informed about the condition of Yashoda. In the hospital
State Vs. Madan Kumar - SC No. 188/2010 9/88
doctor had told them that there were certain marks on her neck.
PW-2 had further deposed that she knew accused Madan as well, who
was the Nephew of Ramvir and was residing in the house of Ramvir. She had seen
Madan residing their for about 9-10 years. She had seen Madan in the morning at
about 09:00 am in her gali, when she was sitting at her Grossery Shop situated in her
house in the same gali and after the incident, she had never seen Madan in the Gali.
In her cross examination, PW-2 Smt. Neelam Chauhan had deposed
that she could not recollect the date of incident, but she had stated to have remained
present at her shop-cum-residence since 05:00 A.M. till the time she had left for
hospital,i.e. around 01:00 pm. She had further deposed that on that day, she had seen
accused Madan at the house of Ranbir at about 09:00 A.M. and thereafter, she had
not seen him either coming out of the house and/or going away from his house.
29 PW-3 Sh. Bhuvneshwar Dayal had deposed that he was doing the job
of computer repairing and was earlier residing at C-1/453/6, Sangam Vihar. He had
further deposed that Sh. Ramvir was his distant relative (Nana) and he was on visiting
terms with them, who were residing in the same gali. In their house Mandan, Ramvir,
his wife and their three daughters and children of the elder daughters were residing
and Madan was the Nephew of Ramvir.
PW-3 had further deposed that he had developed friendly relations with
Yashoda, which ultimately got converted into a love affair and they used to meet
outside secretly and used to talk with each other secretly on telephone. His mobile
phone number at that time was 9268467801 and phone number of Yashoda was
9289273027 on which they used to talk. Both these phones were of TATA and local
calls from TATA to TATA were free, therefore, they used to talk for a long time and this
fact was not known to the family members of Yashoda. He had further deposed that
State Vs. Madan Kumar - SC No. 188/2010 10/88
about two moths prior to the date of incident, both of them had gone in a park at Sarai
Kalen Khan; accused Madan had come to know about their love affiar, one month prior
to the incident; accused Madan had threatened Yashoda to face dire consequences in
case she would talk to him (PW-3) and had asked her to stop her love affair with him
(PW-3).
PW-3 had further deposed that Yashoda had told him about threats
given by accused Madan on the same day evening and told him that she wanted to
send accused Madan back to his native place so that she could continue her love
affair with him; she had further told him that she would try to put pressure on her
parents to send Madan Kumar back to his village.
He had further deposed that at 09:15 am, on the day of incident i.e
28.01.2010, he had received a missed call of Yashoda and thereafter, he had made a
call to her, then Yashoda had told him that she had an apprehension of danger to her
life from Madan in view of her relations with him.
It was further stated that when he was in his office, in the evening of
28.01.2010, he came to know from Chander Kala, younger sister of Yashoda that
Yashoda was in the hospital and that Madan was not at home. She had also told him
to call Madan so that he could come to the hospital. Accordingly, he made a call to
Madan, but his phone was found switched off. Thereafter, he reached at the hospital.
Madan had already disappeared from the house of Ramvir since the day of incident. It
was stated further by PW-3 that from the entire episode, he believed that Madan had
killed Yashoda.
PW-3 had further deposed that on 12.02.2010, his statement was
recorded by the IO at the spot and on 22.04.2010 his supplementary statement was
recorded by the IO at Police Station.
State Vs. Madan Kumar - SC No. 188/2010 11/88
In his cross examination, PW-3 had deposed that at the time of death of
Yashoda (since deceased) he used to work at RT Outsourcing at Okhla-II and his
office timings were from 09:30 A.M. to 05:30 P.M. and during those days he had been
residing at House No. C-1/453/6, Sangam Vihar, situated in front of the house of
Yashoda across the gali.
He had further deposed that only Ms. Chanderkala, the sister of
Yoshoda (deceased) and Rajesh had the knowledge about his love affairs and except
them none else in her family had the knowledge about it. He had further deposed that
Virender Singh, uncle of deceased Yashoda was also residing in one room of the first
floor of the house alongwith his family members and they had also no knowledge
about their love affairs. PW-3 had voluntarily stated that accused Madan Kumar had
doubted his relationship with Yashoda and around 5 months before the date of
incident he got confirmed about it and since then, he used to quarrel with Yashoda and
had even tried to stop her to maintain the relationship with him. In the same breath, he
had again stated that the accused was well aware of their relationship and hence, he
used to stop Yashoda to talk with him (PW-3).
He had also stated in his further cross-examination that he had visited
the house of Yashoda just two days prior to her death and he came to know about the
fact of her death on the same day at about 02:00/03:00 PM, when Chander Kala,
sister of Yashoda had informed him telephonically and prior to that he had no
knowledge about the death of Yashoda. He had further stated that on that day also, he
had talked to Yashoda (deceased) on telephone at about 09:15A.M. and except those
two telephone calls on 28.01.2010, there was no other telephonic contact between him
and other family members of Yashoda. However, he could not tell the mobile number
of Chander Kala.
State Vs. Madan Kumar - SC No. 188/2010 12/88
PW3 had denied the suggestion put to him by the Ld. Defence Counsel
that mobile number 9268467801 (Tata) was registered in the name of Ram Jee Lal,
whom he knew well. When PW3 was confronted with photocopy of an application form
of subscriber pertaining to the number 9268467801 (Ex. DA), which was in the name
of Ram Jee Lal, which was filed by the IO alongwith the chargesheet, then this witness
had stated that the shopkeeper from whom he had purchased the said SIM of Tata
mobile number, must have changed the ID, with the ID which he had furnished at the
time of taking the mobile connection.
PW-3 had also denied the suggestion put to him that Kamlesh had
informed him from mobile number 9015459881 at about 01:28pm that Yashoda had
died or that he should run away, otherwise, he would be implicated in this case and
upon this suggestion, the witness had voluntarily stated that Chander Kala had
informed him that Yashoda was taken to the hospital after being electrocuted.
He had though admitted when he was confronted with CDR (Ex.DB) that
it reflected the call from mobile number 9015459881 on his mobile number
9268467801 at 13:28:57 and 13:53:19 on 28.01.2010 at point A and A-1 respectively
and had stated further that Chander Kala had also informed him that she had
accompanied Yashoda to the hospital. However, he had again changed his statement
and stated further in the same breath that Chander Kala had informed him that
Yashoda was present in the hospital. He could not tell as to whether the mobile phone
number 9015459881 pertained to Chander Kala or Kamlesh or to anybody else.
He had though denied the suggestion put to him by Ld. Defence
Counsel that Harpal Singh had scolded him from his mobile number 9999171551 at
14:37:36 hours on 28.01.2010 and had also told him that because of his misdeeds,
Yashoda had died. But he had voluntarily stated that though he could not recollect as
State Vs. Madan Kumar - SC No. 188/2010 13/88
to whether Harpal Singh had made any telephonic call to him or not, but he had not
scolded him. When this witness was confronted with the record CDR (Ex.DB)
pertaining to mobile number 9268467801, he after going through the said CDR, had
stated that it reflected that one call at point B on his above mobile number was made
from mobile number 9999171551 at 14:37:36 hours on 28.01.2010 and due to lapse of
time, he not recollect about the same. He had, however, denied the further suggestion
put to him by Ld. Defence Counsel that on 28.01.2010, he had made a call to Harpal
Singh at 02:25pm and told him that there was no fault on his part related to the death
of Yashoda. The witness had further admitted that CDR (Ex.DB) pertained to mobile
number 9268467801 and it had reflected one outgoing call at point C from his mobile
number to the mobile number 9999171551 at 14:24:46 hours on 28.01.2010.
PW-3 had further denied the suggestion put to him by Ld. Defence
Counsel that he had stopped visiting the house of deceased Yashoda about one week
prior to her death as all the family members had an objection about his
relationship/love affair with Yashoda, as they (PW-3 and Yashoda) were falling in the
prohibited degree of relationship. But he had admitted the suggestion put to him by Ld.
Defence Counsel that Yashoda (since deceased) was distantly related to him being
his "Mausi" and father of Yashoda was his "Nana".
PW-3 had however admitted the suggestion put to him by Ld. Defence
Counsel to be correct that he used to talk to Yashoda on telephone during night hours
and he had even talked telephonically with Yashoda on the intervening night of
27/28.01.2010 but he could not recollect at what time for the first time, he had talked
telephonically with Yashoda in the early morning hours at 28.01.2010, but had stated
voluntarily that lastly he had telephonically talked with Yashoda at 09:15 am. He had
further stated that he had made a telephonic call to Yashoda at about 09:00/09:15 am
State Vs. Madan Kumar - SC No. 188/2010 14/88
on 28.01.2010 and he and Yashoda had a telephonic conversation for long duration on
intervening night of 27/28.01.2010 and also in the early morning.
During his further cross-examination, PW3 had further deposed that he
used to visit house of Yashoda almost daily and had also stated that he was having a
love affair with Yashoda, but had denied the suggestion put to him by Ld. Defence
Counsel that on 28.01.2010 at around 9.15 AM, during their conversation on
telephone, both of them (Yashoda and PW3) had intended to marry each other on
28.1.2010 secretly at Arya Samaj Mandir, Yamuna Bazar without intimating the
parents of Yashoda or that he had deposed falsely against the present accused in
order to save the parents of deceased.
Be that as it may, so far as deposition of this witness about threatening
to deceased by accused is concerned, same is not admissible in evidence being
purely based on hearsay as he himself had not witnessed even a single of such
alleged incidents.
30 PW4 HC Subhash, Duty Officer, had proved the copy of the
computerized FIR recorded by him as Ex.PW4/A, on the basis of the rukka received
from SI Ajeet. He had also proved his endorsement Ex. PW4/B made thereon and had
stated that after registration of the FIR, further investigation was marked to Insp. J D
Meena and copyof FIR and oriignal rukka were handed over to the IO.
PW-4 HC Subhash was not cross examined by Ld. Defence Counsel
despite an opportunity granted to him.
31 PW-5 Ct. Vipin had deposed that on 2.2.10 while he was posted at PS
Sangam Vihar, he had received three copies of FIR of this case from the Duty Officer
and had handed over one copy of the same to MM concerned, another copy thereof to
Joint Commissioner of Police and the third copy to Addl. CP at their respective
State Vs. Madan Kumar - SC No. 188/2010 15/88
residences.
PW-5 Constable Vipin was also not cross examined by Ld. Defence
Counsel despite an opportunity granted to him.
32 PW6 SI Mahesh Kumar had deposed that on 12.2.2010 he was posted
as SI/Draftsman at Crime Branch, Polcie Headquarters and on that day he alongwith
Insp. Jaldhari Meena had visited the place of occurrence, i.e. C-1/319/6, First Floor,
Sangam Vihar and had prepared rough notes and measurements of the place of
occurrence at the instance of Smt. Rajesh Kumari and then he had prepared the site
plan Ex. PW6/A and after preparation of the scaled site plan he had destroyed the
rough notes and measurement.
In his cross examination, PW-6 SI Mahesh Kumar had deposed that the
portion encircled "X", shown in the site plan (Ex.PW6/A) was of property bearing no.
C-1/319/6 and the point "A" was the place of incident. He had further stated that at the
time of the preparation of the rough notes for the site plan, the table had existed there
and the articles, if any, lying below the table were also visible, but he had not shown
the same in the site plan and he had also not obtained the signatures of Smt. Rajesh
Kumari on the rough notes, at whose instance, he had prepared the site plan
Ex.PW6/A.
33 PW-7 Smt. Rajesh Kumari, who also happened to be the real sister of
deceased Yashoda, had deposed that she was living with her parents since last three
years of the incident at C-1/318/6, Sangam Vihar and on 28.01.2010, at about 10:00
am her father had gone to drop her mother and younger sister namely, Chanderkala in
an institution of stitching and beauty parlour near at Rajghat, while she and her other
younger sister Yashoda Kumari (younger to Chanderkala) were present in the house
alongwith her Baby. She had explained that she was in the room at ground floor while
State Vs. Madan Kumar - SC No. 188/2010 16/88
Yashoda Kumari had gone on first floor for making of breads.
PW7 had further deposed that at about 11:00 am, her cousin namely
Mandan Kumar, who was also living with them in the same house since last 10-12
years, came to the house and entered in the room, where she was already present at
ground floor. PW7 had further deposed that thereafter Madan Kumar had taken his
bag containing his clothes etc and without even talking to her, he left the room and
went on the first floor, where their food used to be prepared. Thereafter, at about 11:30
am, in order to help her sister in preparation of Sabzi, she had gone to the first floor in
the room. The said room was found closed though it was not bolted from outside. She
opened the said door and saw that her sister was lying on the floor under a table in an
unconscious state. Her head was out of table and rest of the body was under the
table. The household articles were found to be scattered. The hair of her sister were
also in disorder. After seeing that scene, she shouted, but she had not noticed any
movement in the body of her sister. On hearing her cry, her aunt, who was also living
in the neighbourhood came there and some other neighbourers had also reached
there. Her aunt had also tried to get the consciousness of her sister regained by her,
but in vain.
PW7 had further deposed that thereafter, her aunt and their neighbour
Neelam had brought her sister Yashoda on the ground floor and laid her on the bed.
One of them had made a telephonic call to her uncle Virender Singh, who had also
reached there at about 12:30 pm/12:45 pm. He had also put some milk in the mouth of
her sister, but she did not respond and thereafter they had taken her to Majidiya
Hospital, but she herself remained at home. Later one, she came to know that her
sister had died in the Hospital.
State Vs. Madan Kumar - SC No. 188/2010 17/88
It was further stated by PW7 that when she had reached at the first floor,
she had not seen Madan Kumar on the first floor. The witness had further stated that
on 28.01.2010 at about 09:00 am, Madan Kumar had gone to Saket in connection with
some work and thereafter he had returned at about 11:00 am. She had not seen
Madan Kumar after the incident. She had stated further that there was no talking terms
between Madan Kumar and Yashoda since one month prior to the incident. Prior to
that there was some altercation between them over the issue of work as her sister
Yashoda had asked him that if he could not help her father in his work then he should
have gone back to his village.
PW7 had further stated that she had not seen as to what had happened
with her sister. After the incident, she had seen Madan Kumar only when police had
brought him after arresting him. She had noticed the ligature mark on the neck of her
sister and in view of the condition of the appearance of house and the act of dis-
appearance of accused, she had suspected that accused Madan Kumar was involved,
but she had not told the police about her suspicion on the accused.
She had stated further that she could not notice any mark of injury on
the body of her sister because after seeing her, she became perplexed as she was
lying unconscious with her loose hairs. Witness had correctly identified the accused.
In her cross examination, PW-7 had deposed that she had studied upto
10 standard and was running a Computer Institute in Town Charra, District Aligarh, UP
and her marriage was solemnized in the year 2003 and after her marriage she had
stayed in her matrimonial home in village Mokimpur, District Aligarh only for about five
to six months from the date of her marriage. She alongwith her husband used to visit
her parental house and also used to stay there for two-three months. Her husband
was a labourer. At the time of the death of her sister, she was continuously staying
State Vs. Madan Kumar - SC No. 188/2010 18/88
with her parents for the last three years and during the aforesaid period of three years,
she had never visited her in-laws/ matrimonial house.
She had further stated that her mother was a housewife and at the time
of death of her sister Yashota, her mother was attending stitching classes in an
Institute near Rajghat, but she could not tell the name of the aforesaid institute, where
her younger sister Chanderkala was also attending beauty parlour course.
She had stated further that her father was the owner of two
properties/houses i.e. House No. C-1/318/6 and House No. C-1/319/6 at Sangam
Vihar and her sister had died in House No. C-1/319/6, Sangam Vihar. Both the
properties were double storied building and consisting of one common entry. In the
said property there was a common staircase leading to first floor. There were two
rooms on the ground for House No. C-1/318/6 and in the House No. C-1/319/6 there
was only one big room having two doors and partition in between. At the first floor of
both the properties there were two rooms. There were no toilets on the ground floor of
both the properties and rather the toilets were on the first floor itself. There was also
no kitchen at the ground floor. The family of her father and the family of her uncle
Virender were not a joint family. They all were residing separately and her uncle was
having three children.
PW-7 had further deposed that on 28.01.2010, she herself, her parents,
her three sisters and her one and half year daughter were present at home, but her
younger brother, namely, Nitesh Kumar, was not present at home on 28.01.2010 as
he had gone to village Nagla Sumer. In her cross-examination, she had denied the
suggestion put to her by Ld. Defence Counsel that Nitesh Kumar was also present at
home and/or he was studying in a school at Delhi on 28.01.2010.
State Vs. Madan Kumar - SC No. 188/2010 19/88
This witness had further admitted the suggestion to be correct that
Subodh, brother-in-law of Virender, was also residing at the room of Virender at the
First Floor, during those days and he was doing leather work but she could not tell if
he was present at home on 28.01.2010 or not.
PW-7 had further stated that her uncle (Chacha), namely Virender was
also doing leather work, who had come at home at around 12:45 pm and he had also
accompanied her sister Yashoda (since deceased) to the Hospital alongwith some
neighbours. However, she could not tell as to whether Neelam Chauhan (neighour)
and Subodh had also accompanied her sister Yashoda to the Hospital or not. She had
categorically deposed that she had remained at her house and she had not gone to
the Hospital on 28.01.2010 to see her sister. She had further deposed that mobile
number 9899892088 belonged to her father but she could not tell as to whether her
sisters Chanderkala and Yashoda (since deceased) were also having any personal
mobile phone or any mobile number
This witness had stated further that on the first floor of property number
318/6 & 319/6, there were two rooms, out of which one Room was in possession of
her Chacha Virender & his family and other room was in their possession and both
those rooms were adjoining to each other, built up on the separate plots adjacent to
each other, and were connected with the passage (common varanda) on the first
floor. She had stated further that if a person shouted, cried loudly, or a utensil was
thrown forcibly or the voice of shrieks could have been heard by the occupants
residing at the ground floor as well as the occupants of the adjoining room residing at
the first floor. However, she could not tell, if there was sunshine in the noon hours of
28.01.2010 or not.
State Vs. Madan Kumar - SC No. 188/2010 20/88
PW7 had stated further in her cross-examination that at about 11:00am,
Madan had picked up his bag, which was hanging on the wall and thereafter, he had
gone on the first floor, but she had not asked him as to where he was going with his
bag and baggages, but she had not noticed any change in his behavour nor she had
heard any kind of noises or voices after Madan had left her room for first floor. She
had tried to cover up this version by saying that since her computer was playing
songs, hence, she might not have heard the noises etc., but was not sure as to
whether she had told this fact to the police or not. She had, however, denied the
suggestion put to her by the Ld. Defence Counsel that Yashoda and Bhuvneshwar
were having any love affairs or that they used to talk telephonically during night hours
or that they wanted to marry each other and/or that they had talked to each other on
mobile phone till 02:30 am (night) in the intervening night of 27/28.01.2010 and they
had again talked to each other in the early morning at 05:30 am onwards on
28.01.2010 and that she was also personally aware about the affair between Yashoda
and Bhuvneshwar and that they were planning of their marriage in Arya Samaj Mandir
on 28.01.2010.
PW7 had further denied the suggestions put to her by Ld. Defence
Counsel that her sister Yashoda had left the house secretly at about 08:30 am on
28.01.2010, for performing marriage with Bhuwneshwar and her parents had doubted
on the illicit love affair relationship of Yashoda and Bhuwneshwar and when her
parents had not found Yashoda present at home at about 08:30 am, they had inquired
about her absence/whereabouts from her and she had disclosed to her parents about
her plan of marriage with Bhuwneshwar and thereafter, her parents had gone out to
search Yashoda and had brought her back from the Bus Stand at about 09:30 am.
She had also denied the further suggestions put to her by Ld. Defence Counsel that
State Vs. Madan Kumar - SC No. 188/2010 21/88
her parents had made attempts to make Yashoda understand that marriage between
her and Bhuwneshwar could not be possible, but Yashoda had remained adamant to
marry Bhuwneshwar due to which, a quarrel had started between her parents and
Yashoda and Yashoda was beaten due to which there was noise and shouting (Shor -
Sharaba) at the ground floor and hence, her parents had gagged the mouth of
Yashoda, and in that process of pressing the mouth of Yashoda by her parents,
accidentally, her mouth, nose and neck were pressed forcibly due to which she
became unconscious, and all that had taken place in her presence.
She had also denied the further suggestions put to her by the Ld.
Defence Counsel that thereafter Yashoda was bolted in the room at the ground floor
and her father went away from the house angrily and thereafter she and her mother
had opened the door of the room at around 12:15 pm on 28.01.2010, to enquire about
the condition (physical and mental) of Yashoda, but Yashoda was found dead and
thereafter, she had informed about the demise of Yashoda to her Chachi and Subodh
and also that Yashoda was taken to the Hospital in a pre-planned manner to pretend
that her death was not unnatural.
The witness had stated further that she had made the statement
(Ex.PW7/D1) to the Police, wherein it was recorded that she had no suspicion related
to the demise of her sister Yashoda. However, she had stated that since she was
hopeless on that day, therefore, she could not confirm, if she had stated about that fact
to the police on 28.01.2010. This witness, when asked as to whether she could have
identified her signature on Ex.PW7/D1, she had nodded her head and stated that
though she used to put her signature in the similar way, but she could not say, if
anybody else had signed the same.
State Vs. Madan Kumar - SC No. 188/2010 22/88
PW7 was also confronted with her statement Ex.PW7/D1 related to her
deposition in the court to the effect that she had noticed the ligature mark on the neck
of her sister, whereas that fact was not so recorded in her above statement. This
witness had also been confronted with her statement Ex.PW7/D1 made before the
Court in her examination-in-chief related to the fact that "the said room was found
closed though it was not bolted from outside, I opened the said door, I saw my sister
was lying on the floor under a table unconscious. Her head was out of table and the
rest of the body was under the table. The house articles were found to be scattered.
The hairs of my sister were also in disorder", whereas those facts were not so
recorded in the said statement (Ex.PW7/D1). To both these confrontations, PW-7 had
tried to take a shelter by saying that due to shock and nervousness on the day of
incident, she might have skipped the narration of above facts to the Police.
She had further deposed that police had inspected the place of incident
(disclosed by her to the police) and had seen the table as well as beneath the table in
the afternoon of 28.01.2010. However, she could not tell the exact time, when the
police had visited their house. Police had not taken photographs or had prepared site
map in her presence on 28.01.2010 and thereafter. She had though voluntarily stated
that police had only made enquiries from her.
PW-7 had further deposed that the 'dupatta' was tied in the neck of
Yashoda, when she had gone upstairs and saw her. As far as she could recollect,
police had again recorded her statement once after 28.01.2010 as well and had
voluntarily stated that police was making enquiries from her since 28.01.2010 for
several days. She had further deposed that Police had come to make inspection at the
place of occurrence even after 28.01.2010. However, she could not remember the
exact date. Her chachi was present at the home on that day. She had denied the
State Vs. Madan Kumar - SC No. 188/2010 23/88
suggestion put to her by Ld. Defence Counsel that she alongwith her other family
members had jointly connived to falsely implicate the accused Madan Kumar and to
save her parents. She had also denied the suggestion that they had lodged a false
FIR after receipt of the postmortem report.
34 PW-8 Sh. Ramvir Singh is the father of the deceased and the
complainant in this case as well, on whose statement FIR Ex.PW29/B was registered.
He had deposed the entire episode as stated by him in his statement before the police
in verbatim, which statement is mentioned in preceding paras no. 6 to 12 of the
judgement. He had also identified the dupatta as Ex. MO-1 and had also proved his
statement recorded by police in this case (tehrir) as Ex.PW8/A. Besides this, the
witness had also identified his signatures at point-A on arrest memo (Ex.PW8//B),
personal search memo (Ex.PW8/C), recovery and seizure memo (Ex.PW8/D), site
plan (Ex.PW8/E) and disclosure statement of accused (Ex.PW8/F).
In his cross examination, PW-8 had deposed that on 28.01.2010, he
himself, his wife (Smt.Chanda), his three daughters namely Chanderkala, Yashoda,
Rajesh, accused Madan Kumar (who is his Nephew) and children of Rajesh were
present at home. His daughter Hemlata had gone to School and son Nitesh Kumar
was already in the Village. His brother Virender alongwith his family members (i.e. his
wife, one daughter, one son and his brother-in-law Subodh) was residing in one room
at the first floor and Subodh was present in his room in the morning hours of
28.01.2010. He had voluntarily stated that in addition, they were having one
asbestoses sheet covered area, during those days.
PW-8 had further deposed that to his knowledge, Chanderkala and
Yashoda were not having their mobile phones, hence, he could not admit or deny the
suggestion put to him by Ld. Defence Counsel that Chanderkala and Yashoda were
State Vs. Madan Kumar - SC No. 188/2010 24/88
having their mobile phones of TATA bearing number 9289503691 and 9289273027
respectively. This witness had however further recalled that Chanderkala was having
mobile phone number 9289503691. The total area of the property bearing no. 318/6 &
319/6, Sangam Vihar was ad-measuring 50 square yard. At that time, it was built upto
first floor. At the ground floor of 318/6 there were two rooms and in 319/6, there was
one room at ground floor and on the first floor of 318/6, there was one room apart from
one tin shed room and on the first floor of 319/6, there was one room. There was a
common wall between the two rooms on the first floor of the property no. 318/6 &
319/6. The partition wall is of 9 inch. There were common stairs which lead to the first
floor with respect to the property no. 318/6 & 319/6.
He had further deposed that at about 02:30 pm, he reached at the
Hospital, 100 - 125 people including his family members were present there, which
included Chanderkala, Chanda and Virender, but he could not say whether Subodh
was also present in the Hospital or not. He had again stated in the same breath that
Subodh had, perhaps, come later on.
This witness had further stated that on 28.01.2010, police had not
recorded his statement and no statement was signed by him on 28.01.2010. When he
had been confronted with his statement recorded by SI Ajit on 28.01.2010
(Ex.PW8/D1), the witness had admitted his signatures at point-A on the said
statement.
He had further stated that his wife was learning stitching work at Khadi
Gram Udhog, Rajghat and his daughter Chaderkala was doing a beautician course at
Khadi Gram Udhog, Rajghat and they used to go to attend the courses daily. He had
denied the suggestion put to him by Ld. Defence Counsel that his wife Chanda and
daughter Chanderkala were not doing any stitching and beautician course from Khadi
State Vs. Madan Kumar - SC No. 188/2010 25/88
Gram Udhog, Rajghat, Delhi. He had stated further that he had not handed over any
documents, as evidence, to the police to show that they were doing stitching and
beautician course from Khadi Gram Udhog, Rajghat, Delhi in January, 2010 or on
28.01.2010 and had denied the suggestion as wrong that they used to remain at home
and they were present at home on 28.01.2010 as well. He could not say as to whether
Chanderkala was having the phone bearing mobile number 9289503691 during those
days, which always used to be with her while going to the institute or whether she had
taken her mobile on the date of incident as well or not.
PW-8 had further deposed that Subodh used to reside with the family of
Virender at the first floor of his property and he was present at home on 28.01.2010,
but he could not say as to at what time Subodh had left the house on 28.01.2010 but
he had say further that he himself was present in the house till 10:15 am on
28.01.2010 and he had left the house at about 10:15 AM on 28.1.2010 alongwith his
wife and daughter.
He had further deposed that till the demise of Yashoda, it was not with in
his knowledge that she was having a love affair with Bhuwneshwar and this fact had
been revealed to him only after her death by Chanderkala. He had denied the
suggestion put to him by Ld. Defence Counsel that Yashoda had left the house at
about 08:30 am on 28.1.2010 with a view to secretly perform marriage with
Bhuwneshwar in Arya Samaj Mandir, Yamuna Vihar (should be read as Yamuna
Bazar), Delhi. He had voluntarily stated that on 28.01.2010 Yashoda was with him at
his house from 08:30 am to 10:15 am.
PW-8 had also denied the further suggestions put to him by Ld. Defence
Counsel that when he could not find Yashoda in house, he had made enquiries from
Rajesh Kumari, who had informed him that Yashoda had left her house in order to go
State Vs. Madan Kumar - SC No. 188/2010 26/88
to Arya Samaja Mandir to perform marriage with Bhuwneshwar secretly and thereafter
he alongwith his wife had gone out in search of Yashoda and/or they had found
Yashoda at the bus stand Sangam Vihar at about 09:20 A.M. and/or thereafter they
had brought her back to their house at 09:30 am and had tried to make her understand
that the marriage between her and Bhuwneshwar was not possible, as Yashoda was
the 'Mausi' of Bhuwneshwar in relation, but Yashoda was adamant to marry
Bhuwneshwar and was not willing to hear them on that aspect. This witness had also
denied the further suggestions put to him by Ld. Defence Counsel that due to the
audacity of Yashoda for marrying Bhuwneshwar, a quarrel had taken place between
Yashoda and them and hence they (PW-8 and his wife Chanda) had beaten Yashoda
due to which a lot of noises and shouting (shor - sharaba) had occurred at the ground
floor and hence, he had pressed the mouth of Yashoda so that the voice/shor sharaba
could not be heard by anybody and accidentally her mouth, nose and neck were
pressed forcibly due to which she became unconscious and because of their said act
of beatings, Yashoda had received bodily injuries on her body including a fracture on
hyoid bone on her neck and later on she had succumbed to those injuries.
He had also denied the further suggestions put to him by Ld. Defence
Counsel that Yashoda was bolted in the room at the ground floor after she had
become unconscious and thereafter he had gone away from the house angrily at
about 10:00 A.M. and/or that he was culprit, so he had reached at the hospital after
02:30pm. This witness had further deposed that he had not received the dead body of
Yashoda and it was received by his brother Virender and his brother-in-law Bhojraj
Singh. He had also denied the further suggestion put to him by Ld. Defence Counsel
that due to his guilty consciousness, he had not gone to receive the dead body of his
daughter Yashoda.
State Vs. Madan Kumar - SC No. 188/2010 27/88
This witness had further deposed that on 28.01.2010, police (SHO, ACP
and other police staff) had brought him from the hospital to his house and had inquired
about the cause of Yashoda's death and at that time, he had told them that Yahoda
used to work in the kitchen and they were using electric heater, therefore, he
suspected that Yashoda might have been electrocuted. He had further deposed that
he had told the police that he had suspected that her cause of death might be
electrocution while using electric heater in the kitchen and if her death was caused by
strangulation, then, it was subject of their investigation. On 30.01.2010; 31.01.2010
and 01.02.2010, he had gone to Police Station alone, on their call. He could not tell as
to whether the police had inspected the spot on 28.1.2010.
PW-8 was also confronted with his statement (Ex.PW8/D1) in respect of
his deposition before the Court that his daughter Rajesh Kumari had told him that she
had seen accused Madan going to the first floor and coming down from there, after
sometime and leaving the house. Though these facts did not find their mention in his
aforesaid statement, but in his deposition on oath before the Court to which he had
also taken the same plea which was taken earlier by his daughter PW-7 Rajesh
Kumari that being under a state of shock, he could not tell the said facts to the police
at the first instance.
It is though interesting to note here that in her entire examination in chief
as well as during her cross-examination, PW-7 had no where stated or claimed that
she had also seen the accused coming down from first floor after sometime of his
going upstairs.
He had also further denied the suggestions put to him by Learned
Defence Counsel that accused had never returned back to house at 11:00 am after
leaving it at 09:00 am or that he and his family members had concocted a story in
State Vs. Madan Kumar - SC No. 188/2010 28/88
connivance with Harpal Singh or that accused had attended the cremation of
deceased Yashoda on 29.01.2010 or that accused had no tussle or differences with
deceased or that accused was not arrested at his instance.
One Dinesh Kumar, who had allegedly informed PW-8 about illness of
his daughter was stated to be a mere acquaintance of this PW, who could not even tell
his telephone number before the Court which according to him was very well
remembered by him on the date of incident when he had allegedly called him from a
STD Booth for some work, which he could not explain before the Court as well.
35 PW-9 Ct. Meendya Ram had deposed that on 07.02.2010, he was
posted at PS Sangam Vihar. On that day, he alongwith Inspector J.D. Meena, PSI
Ajeet Singh reached from the PS Sangam Vihar to the place of occurrence i.e C-
Block, Sangam Vihar. At the spot, they met Rambir, the complainant. From there, they
along with complainant Rambir went in search of the accused. When they reached at
Pandey ki kothi at Mangal Bazar, Sangam Vihar, Rambir had pointed out towards
accused Madan Kumar and told that he was accused Madan Kumar. The accused
was apprehended and arrested vide arrest memo Ex.PW8/B and his personal search
was conducted vide memo already Ex.PW8/C. Thereafter the IO had recorded
disclosure statement Ex.PW8/F of the accused Madan. Pursuant to the disclosure
statement, accused led them to the place of occurrence i.e first floor of house No. C-1,
318/6, Sangam Vihar, and he took out a 'duptta' which was kept under the table. IO
took that duptta and seized it into one pulanda and sealed the same with the seal of
JM. Thereafter the IO had handed over the seal to him. He had proved the pointing
out memo cum-seizure memo of 'duptta' as Ex.PW8/D. He had further deposed that
the accused had also told them that with the said 'duptta', he had strangulated the
deceased. He had further deposed that the IO had also prepared the site plan already
State Vs. Madan Kumar - SC No. 188/2010 29/88
Ex.PW8/E which bear his signatures at point B and thereafter they came back to the
PS along with accused.
The witness had further stated that on 16.02.2010, he had again joined
the investigation. On that day, he had taken one Viscera peti sealed with the seal of
Department of Forensic Medicine AIIMS, New Delhi and one sample sealed vide RC
no. 28/21/10 and he had deposited the same in FSL, Rohini vide receipt number
FSL/2010-C/646. He had further deposed that till the time, the exhibits had remained
in his custody the same remained intact. IO had recorded his statement in this regard.
This witness had stated further that on 13.04.2010, he had again joined
the investigation and had taken one pulanda of weapon of offence i.e duptta sealed
with the seal of Department of Forensic Medicine AIIMS, New Delhi and one sample
sealed vide RC no. 66/21/10 and he had deposited the same in FSL, Rohini vide
receipt number FSL/2010-P-1526 in intact condition. He had identified the duptta as
Ex.MO-1 and the accused as well, who was arrested in his presence in this case.
In his cross examination, PW-9 Ct. Meendya Ram had deposed on
07.02.2010, on the instructions of Inspector J.D. Meena, he had joined investigation
of this case and had visited the house no. C-318/6, Sangam Vihar at around
10:00-10:15 A.M. and when they had reached at the spot, he had seen the place of
occurrence i.e C-318/6, Sangam Vihar. IO as well as PSI Ajeet Kumar had also seen
the spot of occurrence, at 10:15 am. All of them had also seen a "yellow coloured
duptta" underneath a table. He had denied the suggestion put to him by Ld. Defence
Counsel that the "duptta" had been planted by the IO at the instance of complainant
Rambir Singh and/or the IO had obtained the signatures of accused on blank papers
which were misused by him with his connivance.
State Vs. Madan Kumar - SC No. 188/2010 30/88
36 PW-10 Sh. Harpal Singh, was the brother-in-law (Jija) of the
complainant Rambir Singh and uncle (Foofa) of deceased Yashoda. He had deposed
that accused Madan Kumar was the nephew of complainant Rambir Singh, who was
also living with the complainant and his other family members and on 28.01.2010,
Virender had informed him telephonically about the demise of Yashoda. Hence, he
alongwith his wife Sheela Devi and son Gaya Prasad had reached the house of
complainant Rambir Singh at Sangam Vihar. On 29.01.2008, he had also attended
the cremation of Yashoda.
He had further deposed that on 30.01.2010, he had received a
telephonic call on his mobile phone number 9999171551, but he could not remember
the number of the mobile from which he had received the said call but the call was
made by accused Madan Kumar, who had represented himself as friend of his son
Gaya Prasad and he (PW 10) had told him that he was not the friend of Gaya Prasad
but he was Madan Kumar, as he had identified his voice. He had deposed further that
the said caller had inquired about the condition of Jassi @ Yashoda (deceased)and he
had replied that she had died and her deadbody had already been cremated.
Thereafter, the said caller had told him,"foofa ji, mere se galat hua hai, ab to main
marunga " (Foofa Ji, I have committed a wrong, therefore, I shall commit suicide). To a
specific question put to him in this regard, he had clarified that the said caller had not
told him anything as to what wrong he had committed or in what context, he had
uttered the aforesaid words but it appeared to him that he had made the said
statement in the context of Jassi @ Yashoda (deceased).
This witness had stated further that he had told Madan that he should
either come back to his house or at the PS upon which accused Madan Kumar had
informed him that he would make a telephonic call to him at 07:00pm in the evening
State Vs. Madan Kumar - SC No. 188/2010 31/88
but he had not made any telephonic call in the evening. He had stated further that he
had furnished the mobile number of accused Madan to complainant Rambir and he
had also narrated his aforesaid conversation with accused Madan over telephone to
him. This witness had further stated that accused Madan used to talk on phone with
his son Gaya Prasad but his son had not told him anything about his conversation with
the accused.
This witness was cross-examined by the Ld. Addl. PP under Section
154 Indian Evidence Act, wherein he had expressed his inability to recall whether
accused Madan Kumar had made any telephonic call to him from mobile number
9818278175, but had admitted it to be correct that accused Madan had told him that
he had killed Yashoda by pressing her neck (by throttling). He had also admitted the
suggestion put by the Ld. Addl. PP for the state that on 01.02.2008 at about 06:00 pm,
accused Madan Kumar had made a call on his mobile number from one another
mobile no. 9758119787, which was picked by his son Gaya Parsad and Madan Kumar
had asked his son as to what was going on at the house of his uncle Rambir Singh,
but he was not sure, if Madan Kumar had also told his son Gaya Parsad that he had
committed the murder of Yashoda.
In his cross examination, PW-10 had deposed that on 28.01.2010, he
had come to know about the demise of Yashoda on phone from Chanderkala and
Virender. First call was made by Chanderkala at about lunch time and Chanderkala
had made a call from her father's mobile. On 28.01.2010 he had no telephonic
conversation with Virender's wife i.e. Kamlesh and Bhuwneshwar. He had further
deposed that Chanderkala had not told him about the cause of death of Yashoda nor
he had asked about it. He had further stated that Virender had called him only once.
He had denied the suggestion put to him by Ld. Defence Counsel that Virender and
State Vs. Madan Kumar - SC No. 188/2010 32/88
his wife Kamlesh had informed him that the death of Yashoda had taken place due to
the beatings, gagging and throttling by Rambir and his wife Chanda, over the issue of
marriage of Yashoda with Bhuwneshwar. He had further deposed that accused Madan
Kumar had made a telephonic call to him on 30.01.2010 at about 12:15 pm and had
denied to the suggestions that accused had not made any phone call to him on the
specified date and time or had not made any confessions before him. However, he
could not say as to whether accused had made any further call to his number on
01.02.2010 as well or not. He was stated to have been maintaining one mobile
number alone which he used to keep at his home as his place of work was stated to
be situated very near to his house and that's why his family members also used to pick
up the calls made on his above-said mobile number. He had further denied the
suggestion put to him during his cross examination that he in connivance with the
complainant had concocted a false story for falsely implicating the accused in the
present case and to save the real culprits.
Further, it had also been deposed by him during his cross-examination
that his son Gaya Prasad had told him about receiving a telephone call from accused
on 01.02.2010 and had denied as wrong to a suggestion put to him in contrary or that
he was deposing falsely to save complainant of this case and his wife being his near
relatives.
37 PW-11 Smt. Kamlesh, who is the aunty (chachi) of the deceased had
deposed that Yashoda (since deceased) was the daughter of Rambir Singh (her
brother-in-law i.e. Jeth) and they were residing at the first floor of House No. C-318,
Gali No. 6, Sangam Vihar, whereas the family of Rambir Singh was residing at the
ground floor of C-318/6 & C-319/6 as well as at the first floor of C-319/6.
State Vs. Madan Kumar - SC No. 188/2010 33/88
She had stated further that on 28.01.2010, around 09:00 am, when she
was present in her room at first floor and upon the call made by Rajesh Kumari
(daughter of Rambir Singh) she had gone in her room at first floor and saw Yashoda
was lying under a table in an unconscious condition and she was not responding and
Rajesh Kumari was weeping. The other neighbours had also come after hearing their
shrieks. They all took Yashoda on the ground floor and she was made to lay down on
the cot. Thereafter, she had informed her husband telephonically as he had gone for
his duty prior to the incident and after arrival of her husband, they had taken Yashoda
to Majeedia Hospital.
She had stated further that the parents of Yashoda had reached at the
Hospital later on, as they were not present at the house at the time of incident. At
about 01:30 pm, the Doctor had informed them that Yashoda had died. Thereafter,
she was sent back to the House, whereas the dead body of Yashoda had remained in
the Majeedia Hospital. The postmortem was got conducted on the body of Yashoda.
On the next day, the dead body was handed over to them after the postmortem.
This witness had stated further that she had no knowledge about the
cause of death of Yashoda. Though, she had noticed the ligature marks on the neck of
Yashoda, but she had not suspected anyone, in this regard.
She had further stated in very categorical manner that the accused
Madan Kumar was the nephew of Rambir and he was also residing in the house of
Yashoda and to her knowledge, there was no quarrel or issue between Yashoda and
accused Madan Kumar. Madan Kumar was living in the house alongwith the family of
Rambir Singh since last four - five years and she did not know anything more about
this case.
State Vs. Madan Kumar - SC No. 188/2010 34/88
This witness was also cross-examined by the Ld. Addl. PP under
Section 154 Indian Evidence Act, but despite her cross-examination, the Ld. Addl. PP
could not elicit anything in favour of the prosecution and against the accused. Though
this witness during her cross-examination by Ld. Addl. PP, had admitted that police
had made inquiries from her and had recorded her statement later on, but she could
not remember the date, when police had recorded her statement. She had, however,
denied the suggestion that she had told the police in her statement that about one
month prior to the incident, there was some verbal altercation between deceased
Yashoda and accused Madan Kumar due to which they were not on talking terms
since then or that Yashoda was pressurizing Madan Kumar to go back to his native
place.
During her further cross-examination by Ld. Addl. PP for the State, this
witness had stated that she was aware that accused Madan Kumar was present in the
house during night hours of 27.01.2010, but she was not sure, if he was also present
in the morning hours till 09:00 am, on 28.01.2010 and/or if accused Madan Kumar had
disappeared from the house since 09:00 am on 28.01.2010.
She had denied the further suggestion of Ld. Addl. PP for the state put
to her that she had shown her suspicion to the police over accused Madan Kumar to
have committed the murder of deceased Yashoda and/or that she was suppressing
the true facts deliberately in order to save the accused being his relative.
In her cross examination by Ld. Defence Counsel, PW-11 Smt. Kamlesh
had deposed that she had no knowledge, if Rambir Singh and his wife Chanda had
beaten Yashoda in the mornings of 28.01.2010 at the ground floor of the house and/or
Yashoda had expired due to the said beating given to her by Rambir Singh and his
wife Chanda and/or if Yashoda had already expired when she had been taken to the
State Vs. Madan Kumar - SC No. 188/2010 35/88
Hospital by Virender and other neighbours. However she had admitted it to be correct
that her husband Virender had two mobile numbers registered in his name i.e. mobile
bearing number 9953838398 and 9015459881 and out of those two mobile phone
numbers, the first mobile number had always remained in her custody and
possession.
She had further deposed that she had reached at the place of
occurrence, where Rajesh Kumari and deceased Yashoda were present and
thereafter, other neighbours including Neelam Chauhan had also gathered there. she
had made telephonic call to her husband Virender, after bringing Yashoda at the
ground floor by herself and with the aid of their neighbour Neelam Chauhan. She had
further deposed that Rambir Singh, his wife Chanda and daughter Chanderkala were
present at the ground floor on the intervening night of 27/28.01.2010, but she could
not say as to at what time, Rambir Singh, Chanda and Chanderkala had gone out of
the house in the morning hours of 28.01.2010 and hence she was not in a position to
admit or deny the suggestion put to her on behalf of defence regarding presence of all
of the aforesaid persons at the place of incidence at the relevant point of time and
place.
38 PW-12 Sh. Virender Singh is the real paternal uncle of the deceased.
He had deposed that Yashoda (since deceased) was the daughter of his brother
Rambir Singh, who was residing with her parents and other family members at the
ground floor of Block C-I, house no. 318 and 319 , Sangam Vihar, New Delhi as well
as on the first floor of house no. 319.
He had further deposed that in the intervening night of 27/28.01.2010,
he alongwith his wife Kamlesh and children Parveen and Shashi as well as his
brother-in-law Subhodh had slept in their room at the first floor at house no. 318; as he
State Vs. Madan Kumar - SC No. 188/2010 36/88
had to go to his place of work at Okhla Industrial Area at about 9:00am on 28.01.2010
and his brother in law Subodh had also gone to his place of work at Sangam Vihar at
08:30am while his daughter Shashi had gone to her school at about 07:00am, but his
son Praveen, who was studying in 5th or 6th standard at that time was present at home,
as he used to go to school in the after noon shift. There used to be a common
staircase for house no. 318 and 319 in January 2010.
He had further deposed that at about 11:30/11:45am, his wife Smt.
Kamlesh had made a telephonic call to him from her mobile phone number
9015459881 to his mobile phone number 9953838398 and had informed him that
condition of Yashoda was not well and she was in critical condition and hence he was
asked to reach there immediately, upon receipt of information, he had reached at his
house and had seen that Yashoda was lying on the bed at the ground floor and
thereafter he had also poured lukewarm milk in her mouth, which was sipped in by her
(doodh gale main jaa raha tha). Thereafter, he alongwith Neelam Chauhan and
Deepak (neighbours) had taken Yashoda to Majidia hospital and they had reached
there at about 12:45am/01:00 pm. He got her admitted. After about 15-20 minutes,
doctors had declared her dead. Then he had made a call to his brother Rambir Singh
and bhabhi and also contacted many other relatives telephonically. Parents of
Yashoda (since deceased) had also reached at the hospital. Police had reached at
Majidia hospital. Deceased was shifted to AIIMS Mortuary. Thereafter, they came back
to their house.
This witness had also identified the dead body of Yashoda (deceased)
vide his statement Ex. PW8/B and on the next day, after postmortem, dead body was
handed over to them vide receipt Ex. PW12/A.
State Vs. Madan Kumar - SC No. 188/2010 37/88
He had stated further that he knew accused Madan Kumar as he was
his real nephew. Madan Kumar used to live with Rambir Singh. He had seen Madan
Kumar in the house of Rambir Singh in the intervening night of 27/28.01.2010. In the
morning of 28.01.2010, before 08:00 am, accused Madan Kumar had come to attend
the call of nature at the first floor latrine, (which at that time was commonly used by the
occupants of house no. C-318 and 319) and thereafter he had not seen him and had
stated further that he did not know if the relations or terms between accused and
Yashoda were cordial or strained. Police had recorded his statement.
This witness was declared hostile and was cross-examined by the Ld.
Addl. PP under Section 154 Indian Evidence Act. In his cross-examination by the Ld.
Addl. PP, this witness had shown his ignorance regarding any verbal altercation or
dispute, if any, that had occurred about one month before the incident between
accused Madan and Yashoda and/or Yashoda wanted Madan to go back to his native
place and had denied the suggestion to have stated those facts to the police in his
statement recorded u/s 161 Cr P C. He had further stated during cross-examination
by Ld. Addl. PP for the State that he was not on talking terms with Madan Kumar, after
he had a verbal altercation ( kaha suni) with his wife Kamlesh.
In his cross examination PW-12 Sh. Virender Singh had deposed that in
January 2010, he was working at M/s Fine Touch Export at A-15, Okhla Industrial
Area-I and he used to go to his place of work by a bicycle. On the day of incident also,
he had gone to the place of work by bicycle. His brother-in-law Subhodh used to do
cotton stitching work on piece rate basis in Sangam Vihar and he was present in their
house in the morning hours of 28.01.2010 till about 08:30am. He could not say if
Subodh had also reached at the hospital in the afternoon. He had further deposed that
he had made telephonic calls to many persons including Subodh.
State Vs. Madan Kumar - SC No. 188/2010 38/88
He had further deposed that he had seen Yashoda and had even talked
to her, when she had come at the first floor to attend the call of nature between 07:30
to 08:00am and thereafter, she had gone downstairs. Thereafter, he had not seen
Yashoda at the first floor portion, being used as kitchen by the family of Rambir, after
08:00am till 09:00am when, he himself had left the house for his place of work.
He had further deposed that the room occupied by them at the first floor
was built up on an area of about 12½ yards and outside the room, there was a tin
shed. The adjoining room occupied by family of Rambir was slightly smaller than his
room. There were separate walls of both the rooms and if somebody had shouted or
made a shriek or thrown utensils forcibly in the room of Rambir Singh at the first floor,
then his/her voice would be heard by the occupants of his room.
He had further deposed that he had reached back at his house at about
11:45/12:00am on 28.01.2010 by his bicycle, after his wife had informed him that the
condition of Yashoda was serious, and that he should come to the house immediately.
He had further deposed that his wife Smt. Kamlesh had not accompanied him to the
hospital. To a specific question put to him by Ld. Defence Counsel as to who else was
present in the house of Rambir, when he had taken Yashoda to the hospital, the
witness had stated that only Ms. Rajesh Kumari (daughter of Rambir), who was
handicap, was present in the house of Rambir and she had not accompanied him to
the hospital. He had further deposed that he had made telephonic calls to many
persons including mobile phone of Rambir either at the hospital or while on the way
when taking Yashoda to the hospital. He also had a telephonic talk with Chanderkala
and her mother Smt. Chanda on that day. He had denied the suggestion put to him by
Ld. Defence Counsel that he had not taken Yashoda to the hospital and/or that
Chanda had accompanied Neelam Chauhan, who had taken Yashoda to the hospital.
State Vs. Madan Kumar - SC No. 188/2010 39/88
He had further deposed that no incident of beating to Yashoda by anyone (including
family members of Rambir) had taken place in his presence. Even accused Madan
Kumar had also not caused any beating to Yashoda in his presence. He had not seen
accused Madan Kumar talking to Yashoda in the morning hours of 28.01.2010 or in
the intervening night of 27/28.01.2010.
He had further stated that he had suspected the involvement of accused
Madan Kumar, as he was not available in the house after 08:00 am on 28.01.2010 and
had disappeared from the house since then.
PW-12 could not tell as to whether death of Yashoda had taken place
due to beating given to her by Rambir and his wife Chanda or about the person who
had killed her.
39 PW-13 Ms. Chanderkala is the real sister of the deceased, who was
residing residing at C-I, 318/6 & 319/6, Sangam Vihar, New Delhi with her family
members. She has deposed that in January, 2010, she was doing a course of
beautician at Khadi Gram Udyog, Rajghat and on 28.01.2010, at about 10:15am, she
alongwith her mother Smt. Chanda Devi and her father Sh. Rambir Singh had left the
house for going to Khadi Gram Udyog, Rajghat. Her father Sh. Rambir Singh dropped
them on his two wheeler scooter at Rajghat and went away.
She had further stated that her younger sister Hemlata had already gone
to her school. Her elder sister Rajesh Kumari, younger sister Yashoda (since
deceased), her cousin Madan (accused) and daughter of Rajesh Kumari aged about
two years were present at home. Accused Madan, her cousin was residing in their
house since 10-12 years and was assisting her father in his business.
PW-13 had further stated that within five minutes of their reaching the
Khadi Gram Udyog, they had received a telephonic call from Rajesh Kumari, but she
State Vs. Madan Kumar - SC No. 188/2010 40/88
was not in a position to speak and was making shrieks and then one neighbour
informed them telephonically that her sister Yashoda was unconscious and froth was
coming out of her mouth. They were also informed later on that Yashoda was taken
initially at Sai Hospital, Sangam Vihar and thereafter, her uncle Sh.Virender Singh had
informed them that Yashoda was being taken at Majidia Hospital. She had again
stated that she could not remember as to who had informed them. On receipt of this
information, they (PW-13 alongwith her mother) reached at Majidia hospital, they were
informed about bringing of Yashoda to Majidia Hospital when they had already
reached Khanpur in a TSR. By the time they had reached Majidia Hospital, her sister
Yashoda had not reached there, but she was brought there only after five minutes of
their arrival by her uncle Virender, who was also accompanied by some neighbours.
Doctor had declared Yashoa as "brought dead". Hospital authorities had informed the
police and thereafter, dead body of Yashoda was taken for postmortem and she
returned back to home.
This witness had further stated that first floor portion of the house no.
319/6, which was in their possession was used as kitchen and was also used for
sleeping purposes for herself and for her sister Yashoda and in the room at the ground
floor in house no. 319/6, her elder sister Rajesh Kumari, her daughter and accused
Madan used to sleep whereas, in the room at the ground floor of 318/6, her parents,
and her younger sister Hemlata used to sleep. Her uncle (chacha) Sh. Virender
alongwith his family i.e. his wife, his two children and his brother in law Subodh used
to reside at the first floor of house no. 318/6. A common Latrine built up alongside the
room of her chcha was used by all the occupants of house no. 318/6 and 319/6.
She had further deposed that Bhuvneshwar was the son of her foofa's
brother's daughter and thus, she was distantly related to Bhuvneshwar . Bhuvneshwar
State Vs. Madan Kumar - SC No. 188/2010 41/88
and Yashoda used to talk to each other telephonically but she was not aware of any
love affair between Yashoda and Bhuvneshwar Dayal. Yashoda had never told her
about her love affair or about the fact that they used to talk or meet each other.
This witness had further stated that since, few months prior to the
incident, due to losses, their factory was closed and her family was in financial
difficulty and since three months prior to the incident, Madan was not doing any work
and her mother used to bring some orders for stitching, embroidery, sequence work
etc which all the ladies of the house and her father used to carry out said work
together. Since, they used to work hard whereas, Madan was not working, her sister
Yashoda used to tell her that Madan used to follow her and that "yeh virus ki tarah
mere peeche laga hua hai". She also told her that Madan also used to follow her till
her college. Yashoda wanted that Madan should either do some work and should
remain occupied or otherwise, he should go back to his village. Parents of accused
Madan also wanted him to return back to the village as they also wanted to fix his
marriage. Since, about three months prior to the incident, Madan and Yashoda were
not talking to each other properly and there used to be verbal altercation (nonk jhonk)
between them. Yashoda used to ask Madan in her presence and in the presence of
her other family members that he should go back to his village as he was not working
and assisting her father in his work. PW-13 had further stated that Yashoda used to
pressurize Madan to go back to his village. Madan used to feel bad and sometimes he
used to remain silent and sometimes he used to utter that "jab jaaonga to ek aadh ko
maar kar jaaonga". Her father had always treated him like his son and he used to say
that they should not feel bad and took his utterances lightly.
It was further deposed by PW-13 that on 28.01.2010, at about 10:15 am,
when she left home alongwith her parents at that time, accused Madan was present at
State Vs. Madan Kumar - SC No. 188/2010 42/88
home. She had seen him standing at the chajja (projector) and her sister Yashoda
(deceased) had come at the main gate of the ground floor to see off them. Rajesh
Kumari was in the room at the ground floor. Her Chachi Kamlesh was present in her
room at the first floor, but she could not tell whether her uncle Virender and Subodh
were also present in their house at the first floor or not. There was a common
staircase of house no. 318/6 and 319/6 and their family members and family members
of her chahca Virender could easily come to the portion of each other.
On receipt of information that Yashoda was unconscious, she had
attempted to make telephonic calls to Madan several times, but his phone was found
switched off. He had not met her even when she had returned back from the hospital.
Since, 28.01.2010 and till the dead body of Yashoda was received after postmortem
on 29.01.2010, Madan was not found. Till then, they had not made any efforts to know
about his whereabouts and they were thinking that he might have been shocked to
hear about the demise of his sister. Madan was not present even at the time of
cremation of Yashoda and they were in a state of shock. Police had inquired about
details of their family members and after coming to know about the cause of death in
the postmortem report, they were informed that Yashoda had died after her
strangulation/smothering. Police had made inquiries from her family members about
the whereabouts of Madan. Thereafter, police made efforts to trace him.
To a specific Court Question, she had categorically stated that she had
not told the police that her sister had told her about one month prior to the incident that
she was having a love affair with Bhuvneshwar Dayal, who was distantly related and
was residing in the neighbourhood and they used to talk to each other and meet each
other secretly inside and outside the house, which fact was known to Madan and he
was angry due to the same.
State Vs. Madan Kumar - SC No. 188/2010 43/88
She had also stated to the further Court Question that she had not told
the police that she believed that Madan Kumar was angry as Yashoda was having a
love affair with Bhuvneshwar Dayal and Yashoda was pressurizing Madan to go to the
village after leaving their house or in order to take his revenge due to his insult in front
of the family members, he had committed murder of Yashoda.
In reply to the further Court Question, she had stated that Police had
arrested Madan on 11th or 12th day of incident and police had brought Madan in their
house at the first floor and had interrogated him in their presence about the manner in
which the incident had occurred. Madan had disclosed that during his verbal
altercation (nonk jhonk) with Yashoda, he had pulled dupatta of Yashoda and due to
which her neck was strangulated (gala ghut gaya). Dupatta was also lying in the said
room, which was seized by the police.
In her cross examination PW-13 Ms. Chanderkala had deposed that in
normal course, they (herself and her mother) left the house at 09:00/09:15 am, to
attend Diploma Course at Khadi Gramin Udyog, Rajghat by bus, but it used to take
only about 30-45 minutes approximately to reach Rajghat, on the scooter driven by her
father and on 28.01.2010, they had reached Rajghat in or around 30-45 minutes
approximately and she was having her own mobile phone at the time of death of her
sister Yashoda, but she could not tell its number. Her deceased Sister Yashoda was
also having her own mobile phone number, whose number as well she could not tell.
Her father Rambir was having one mobile phone number 9899892088. She could not
state as to whether her father was also having another mobile phone number
9899982088.
The institute, in which she had attended diploma classes had also
issued certificate to her and her mother. She had further deposed that phone no.
State Vs. Madan Kumar - SC No. 188/2010 44/88
9899892088 belonged to her father and another phone no. 9899896381 belonged to
her mother. She could not tell as to whose statements were recorded by the police in
the evening of 28.01.2010 at her house, as she was not in a proper state of mind due
to death of her sister Yashoda. She had also deposed that police had recorded her
statement once but she could not state the date of recording of her said statement. In
her further cross-examination, PW-13 had deposed that statement (Ex.PW13/A) was
her statement recorded u/s 161 Cr.PC where it was not recorded that her mother
Chanda was doing stitching courses at Khadi Gram Udyog, Rajghat. However, she
had denied to have made the statement to the police that when on 28.01.2010, at
about 10:15 am, she had left home alongwith her parents and at that time, accused
Madan was present at home. She had seen him standing at the chajja and her sister
Yashoda (deceased) had come at the ground floor to see off them and had voluntarily
tried to shield herself by taking the plea of being under the state of shock.
When the witness was asked to clarify as to which of the following two
statements were correct:
"In your statement u/s 161 Cr.PC (Ex.PW13/A), it is recorded that
Madan had left the house at about 09:00 am on 28.01.2010 for his urgent piece of
work to Saket and in your examination in chief, you had stated that at about 10:15am,
when you left alongwith your parents, Madan was present at home. Clarify?", the
witness had replied that she had not given any such statement to the police that
Madan had left the house at about 09:00am on 28.01.2010 for his urgent piece of work
to Saket. She had further stated that accused Madan had not left the house at about
09:00am on 28.01.2010 for his urgent piece of work to Saket and he was present at
home since morning till 10:15am, when she had left the house with her parents.
State Vs. Madan Kumar - SC No. 188/2010 45/88
PW-13 had further deposed that she was using Tata phone but she
could not state whether she was using mobile phone 9289503691 or not during those
days. She also could not remember as to whether the phone number of her sister
Yashoda (deceased) was 9289273027 and phone numbers of her chacha Virender
and Chachi Kamlesh were 9953838398 and 9015459881 respectively. This witness
had admitted it to be correct that she and her sister (Yashoda) used to sleep in a
room at first floor, where the kitchen was situated and normally, no third person used
to sleep with them. accused Madan and her sister Rajesh Kumari and her daughter
used to sleep at the ground floor. She could not tell as to whether her sister Yashoda
had any telephonic conversation for long hours with any person on the intervening
night of 27/28.01.2010 i.e. on the night prior to her death. She had flatly denied about
herself having long conversations with some person at late hours in the night. But
when the witness was confronted with CDR of mobile phone number 9289503691
Ex.PW17/D and was asked to tell as to whose phone number was 9278699800, the
witness could not tell as to whose mobile phone it was, but had later on admitted that
she also used to have long conversations in the night with someone whose identity
she was not willing to disclose and had also refused to comment in regard of her
CDRs.
When the witness had been asked as to what telephonic conversations
were arrived between her mobile phone number 9289503691 and the user of
telephone user no. 9278699800 from 18:10:59 hours to 01:23:57 hours on the
intervening night of 27/28.01.2010, as shown in CDR (Ex. PW17/D) at point A to A-1,
PW13 had replied that she could not recollect and also did not want to comment
anything in that regard. Same was her reply to the telephonical conversation between
mobile phone number 9289503691 and 9278699800 from 04:51:49 hours to
State Vs. Madan Kumar - SC No. 188/2010 46/88
07:45:01 hours in the morning hours of 28.01.2010, as shown in CDR (Ex. PW17/D) at
point B to B-1.
The witness had further deposed that on the intervening night of 27th /
28th January, 2010, she and her deceased sister Yashoda had slept together in a room
at first floor and they had waked up in the morning of 28th January, 2010, together, but
she could not tell as to whether Yashoda had any telephonic conversation with
Bhuvneshwar. She had further stated that Yashoda might have had long telephonic
conversation with Bhuvneshwar through mobile phones, but she could not tell as to
whether Yashoda and Bhuvneshwar had long conversation in the intervening night of
27th / 28th January, 2010, in relation to their intimate love relationship. She had denied
the suggestion put to her by Ld. Defence Counsel that Yashoda had made numerous
telephonic conversations with Bhuvneshwar in her presence between the period from
17:22:18 hours from the evening of 27th January, 2010 and which ended on 01:00 am
of 28th January, 2010 and/or that their aforesaid conversation on the intervening night
of of 27th / 28th January, 2010 between Bhuvneshwar and Yashoda was about their
intimate love relationship and their marriage, which they intended to perform secretly
in the morning hours of 28th January, 2010 without informing their parents, at Arya
Samaj Mandir, Yamuna Bazaar, Delhi.
The witness had further deposed that the maximum calls which she had
received during period from 01st January, 2010 to 28th January, 2010, were of one
Iqbal, who used to work of stitching in a shop at Devli and she was also doing practice
of Beauty Parlour Course in a shop infront of shop of Iqbal. She had also denied the
suggestion put to her by the Learned Defence Counsel that her sister Yashoda had left
the house at about 08.30 AM for performing marriage with Bhuvneshwar and/or she
had the knowledge that Yashoda had left the house for the marriage purpose. She had
State Vs. Madan Kumar - SC No. 188/2010 47/88
also denied the further suggestion put to her by the Ld. Defence Counsel that Rajesh
had disclosed about the whereabouts of Yashoda to her parents, whereupon they had
brought Yashoda back from the bus stand at about 09:30 am, made her to understand
that marriage between her and Bhuvneshwar was not possible, but Yashoda was
adamant to marry Bhuvneshwar and thus, a quarrel had taken place and Yashoda was
given beatings by her parents and/or her parents had gagged the mouth of Yashoda,
so that her Chachi and Subodh could not hear 'shor-sharaba' and / or in that process
of pressing the mouth of Yashoda, accidentally her mouth, nose and neck were
pressed forcibly due to which she became unconscious and later on died. She had
also denied the suggestion put to her that she had not seen accused Madan at 10:15
am at her home on the shade/chajja and/or that accused Madan had left the house at
09:00 am on 28.01.2010 and/or that she alongwither her mother had not left the
house at about 10:15 am on that day for Rajghat for attending Diploma Course. She
was not able to recall the number from which either she or her mother had received
the telephonic information about condition of Yashoda at Rajghat. However, on the
said day besides her own mobile, she was also carrying the mobile phone of her father
whereas her mother was not carrying any mobile phone. It had been deposed further
by her that firstly she had talked to her sister Rajesh about Yashoda, but since she
could not explain anything hence someone else had taken her mobile and had
informed her about the condition of Yashoda.
She had reached Majidia Hospital in the afternoon, but exact time she
could not tell. However, she had remained in the Hospital for about two hours and had
not noticed any marks or ligature on Yashoda's neck. She had denied the suggestions
as wrong that neither she nor her mother were present at Rajghat on that day or that
they had not received any call there or that they were not doing any diploma courses
State Vs. Madan Kumar - SC No. 188/2010 48/88
from Rajghat and her mother always used to remain in their house itself.
She had stated further that she might have received a call on her phone
from mobile number 9278699800 at 09:51:26 hours on 28.01.2010 which call had
lasted for about 1627 seconds, but she could not remember as to whom the said
number belonged. Everyday, she used to talk to Iqbal at the time of proceeding from
her house and on 28.01.2010 as well, she had received the phone from the same
number. Strangely, it was also deposed by her that she used to attend the phone while
at home, but used to simply receive the call without talking or speaking anything while
she used to be on her way out.
Further she had categorically denied the suggestions that accused
Madan Kumar had left the house at 09:00 am and thereafter had not remained present
there till evening or that she alongwith her parents had not left their home at 10:15 am
to attend any diploma course at Rajghat.
Witness was also shown CDR (Ex.PW18/L) pertaining to mobile number
9899892088 for the period between 11:10:21 till 12:45:17 hours at points X to X-1 and
after going through it, she had stated that she could not tell as to whom the mobile
numbers 9953838398, 9015459881 and 9289273027 pertained or whether her father
had received any phone call from those numbers or not and had denied the
suggestion that no phone call was received at the aforesaid number from any number
between 11:10:21 till 12:45:17 or that she was not carrying that mobile with herself or
that it was in possession of his father only on 28.01.2010. Witness was also shown the
CDR (Ex.PW17/D) pertaining to her mobile number 9289503691 for 28.01.2010 and
after going through it, she had stated that she could not remember if she had received
the call at her number for the first time at 01:00 pm from her Chacha (Uncle) Virender.
State Vs. Madan Kumar - SC No. 188/2010 49/88
She had also denied the suggestions so put to her by Learned Defence
Counsel as wrong that her father had received a call from her Chachi (Aunty) at
12:48:13 hours, when his phone was showing the location of Vasant Vihar or that her
location was at Greater Kailash, when she had received a call at 13:01:04 hours or
that she was moving around Majidia Hospital upto 02:00 pm and had visited the
hospital after that. She had also denied the suggestion that at about 01:00 pm, her
uncle Virender had informed her about the death of Yashoda or that he had asked her
to come back to home, but she had voluntarily deposed that though in the first call she
was asked to come home by her uncle, but in the second call she was asked to come
to Majidia Hospital. However, she could not tell as to who had admitted her sister in
the Hospital. She had again denied the suggestion that her mother Chanda alongwith
her neighbour Neelam Chauhan had got her sister admitted in the Hospital or that she
had not received any call from her sister Rajesh about the condition of deceased.
She had also denied the further suggestions put to her that accused
Mandan had attended the cremation of Yashoda on 29.01.2010 or that he was not
interrogated by the police in her presence or that the alleged recovery of 'dupatta' was
not made by the police in her presence or that accused had not admitted any of his
guilt in her presence.
PW13 had also denied the suggestion put to her by the Ld. Defence
Counsel that on 28th January, 2010, at about 09:51 am, she had secretly left her home
in order to bring the documents i.e. affidavit, which her sister Yashoda and
Bhuvneshwar had got deposited with Arya Samaj Mandir, when her parents had come
to know about the intention of Yashoda and Bhuvneshwar marrying each other on 28th
January, 2010 so that they could not have discovered her (PW-13) role in the
performance of aforesaid marriage.
State Vs. Madan Kumar - SC No. 188/2010 50/88
PW13 had further deposed that she had not told the police that
Yashoda used to tell her that accused Madan used to follow her ('ye virus ki tarhan
mere piche laga hua hai') and accused Madan also used to follow her up to her
college. She had further stated that she had not told the police that accused Madan
used to feel bad and sometimes he used to remain silent and sometime he used to
utter that 'jab jaunga to ek adhe ko maar kar jaunga'. She had also denied the
suggestion that she had deposed against accused Madan to save her parents.
40 PW14 Sh Gaya Prashad had deposed that accused Madan was son of
Mahaveer Singh, who was cousin of his mother and Rambir Singh was his maternal
uncle and accused Madan Kumar was residing with Rambir at his Sangam Vihar
House. He had further deposed that deceased Yashoda was daughter of Rambir, who
was murdered on 28.01.2010. However, neither he had asked accused anything in
respect of her death nor accused had told him anything about her death or cause of
her death. He had further deposed that he used to meet accused Madan from time to
time and sometimes he used to talk to him on phone. PW-14 had further deposed that
on 29.01.2010, he had attended the cremation of Yashoda. When he reached at the
house of Rambir Singh, accused Madan was not found present there and he had not
seen him till 31.01.2010. He had further deposed that on inquiry made by his father
from accused on phone as to why he was not present at the house of Rambir, accused
Madan had replied that "mujhse bahut badi galti ho gai, mujhe aisa nahin karna chaiye
tha'. It was either on 31.01.2010 or 01.02.2010, when accused Madan had made a
telephonic call to him, he himself had also asked accused about his absence, but he
kept mum. He had further deposed that accused Madan had not disclosed anything to
him about Yashoda and he had forgotten these facts due to lapse of time and shaded
memory in his examination in chief.
State Vs. Madan Kumar - SC No. 188/2010 51/88
In his cross examination, PW-14 Sh. Gaya Prashad had deposed that
mobile phone no. 9999171551 was being earlier used by his father and in 2010
during the period of death of Yasoda, there were 2 cell phones, one was being used
by his father and one by him. However, he could not tell as to whether the call dated
1.2 .2010 made by accused Madan Kumar was attended by him or not. He had also stated that he had not noted down the number from which the call was made. The call received by his father on 30.1.2010 from accused Madan Kumar was noted down in a diary by his father, but he could not tell as to whether his father had shown the said diary to the police or not. The mobile number of accused Madan was saved by his name in their mobile phone. On 28.1.2010 Chandrakala had given him an information about state of health of Yashoda. The call was picked up by him and after receiving that call, he alongwith his mother had immediately rushed to the hospital. He had further deposed that he had the last telephonic conversation with accused Madan, after the death of Yashoda and it was either on 31.01.2010 or 01.02.2010, but he could not tell the telephone number from which he had lastly conversed with accused Madan. He had further deposed that after receiving the last call from accused Madan, he had made a telephonic call to his Mama Rambir from telephone number 9999171551, which was registered in the name of his father Sh. Harpal Singh and it was mostly being used by him and sometimes by his father, but he could not tell as to whether said mobile was in his possession on 28.01.2010 or not. He had further deposed that the mobile phone numbers of Virender, Kamlesh, Rambir, Chanderkala, and Bhuvneshwar were saved in his said mobile phone at the time of the incident of death of Yashoda. He had denied the suggestion put to him by Ld. Defence Counsel that the said mobile phone no. 9999171551 was being used by his father Harpal. Further he could not tell if on 28.01.2010, Bhuvneshwar had also made any telephonic State Vs. Madan Kumar - SC No. 188/2010 52/88 call at his mobile no. 9999171551 as he was not sure about it. He had further deposed that on 28.01.2010, he had also made telephonic conversations with his another Mama Virender. He could not remember the numbers of his cousin sisters Chandarkala and Yashoda (deceased) and was not sure as to whether his maternal uncle (Mama) Rambir was having two mobile numbers or not hence he had declined to admit or deny any suggestion put to him in this regard.
The witness had been confronted with CDR (Ex. PW14/X) pertaining to mobile phone no. 9999171551 used by him, and was asked to tell after seeing the said CDR, if there was any telephonic call incoming or outgoing from the mobile number 9899892088 and 9899982088 (Rambir's mobile phone) to his phone or from his mobile phone no. 9999171551 during the period between 29.01.2010 to 30.01.2010 and 01.02.2010, to which the witness after going through the said record had stated that no such calls were reflected in the aforesaid CDR. The witness had further stated that though he had talked to Chanderkala on 28.01.2010 in the afternoon, but he could not tell the mobile number on which the conversation had taken place.
The witness had further stated that cremation of Yashoda had taken place in the evening and after receiving call from accused Madan on 01.02.2010, the IO of the case had called him on 01.02.2010 in the police station and his statement (Ex.PW14/A dated 01.02.2010) was recorded in the police station in the evening and statement of his father was recorded by the police after 2-3 days of recording of his statement.
To a Court question as to whether he (PW-14) had any talk withMahender (brother of Madan), when he had come to attend the cremation of deceased Yashoda, the witness had deposed that he could not remember, if State Vs. Madan Kumar - SC No. 188/2010 53/88 Mahender had attended the cremation of Yashoda, but according to him, he was present at the time of cremation of Yashoda and and Nitish, brother of deceased Yashoda and his Mama Rambir, collected the ashes (fool chugna) of Yashoda after cremation.
This witness had further deposed that during his stay of 3-4 days at the house of his Mama, after the demise of Yashoda, he had not heard that Yashoda had died due to electrocution. The police officials had regularly made visits to the house of his Mama Rambir on 29.01.2010, 30.01.2010, 31.01.2010, 01.02.2010 and 02.02.2010 and police officials had also interrogated the family members of his Mama Rambir during those days. He had further deposed that his Mama Rambir had not told him anything specifically about the cause of death of Yashoda.
PW-14 had further stated that her father Harpal had told him about accused Madan's telephonic call to him and that accused Madan was weeping and was staying again and again that he had committed a mistake and ought not to have done the same. He had also admitted the fact that as per his statement (Ex.PW14/A), he had already left the house of his Mama Rambir on 29.01.2010 itself after cremation of deceased Yashoda, but had denied the suggestion that his father Harpal had all the knowledge about the actual cause of death of Yashoda. However, his testimony is of no use for the prosecution being entirely based upon hearsay and further that it does not at all pertain to any extra judicial confession of accused as well. 41 PW-15 Doctor H. A. Zobairi had proved MLC No. 07/2010 dated 28th January, 2010 of Ms. Yashoda d/o Mr. Ramvir Singh as Ex.PW15/A. As per the MLC, the alleged history was "she was found unconscious below the table half an hour back". Place of the incident was mentioned as "at home". As per record, the patient was brought to Hospital at 13:35 hours on 28th January, 2010. As per the MLC, State Vs. Madan Kumar - SC No. 188/2010 54/88 incomplete ligature was noted on the right side of neck. The patient was declared "brought dead".
PW-15 Dr. H. A. Zobir was not cross examined by Ld. Defence Counsel despite opportunity being granted to him.
42 PW-16 Sh. Bhoj Raj Singh is uncle of Yashoda. He had deposed that he was informed by someone that Yashoda had died and thereafter, he came to Delhi from Aligarh on 28.01.2010. He alongwith Virender went to Mortuary, where he had identified the dead body of the Yashoda vide his statement (Ex.PW8/B) and thereafter had also received the dead body vide receipt (Ex.PW12/A). Thereafter cremation of the Yashoda was done.
PW-16 Sh. Bhoj Raj Singh was also not cross examined by Ld. Defence Counsel despite opportunity granted to him.
43 PW-17 Sh. Rajeev Ranjan, Nodal Officer, TATA Tele Service Ltd. had proved the relevant documents and the CDR related to the mobile number 9268467801 belonging to one Sh. Ram Ji Lal s/o Sh. Hanuman, r/o F-102, J. J. Camp, Tighri, New Delhi as Ex.DA, copy of customer ID Proof i.e. Ration Card as Ex.PW17/A and CDR as Ex.DB (11 Pages).
PW-17 had also proved the relevant documents and the CDR related to the mobile number 9289503691 belonging to Ms. Chandra Kala d/o Sh. Rambir Singh r/o C-318A, Block-C, Sangam Vihar, Delhi as Ex.PW17/B (TATA Prepaid Enrollment Form), Ex.PW17/C (copy of her Voter ID) & Ex.PW17/D (CDR) collectively (13 Pages). He had also placed on record Cell ID Chart (Ex.PW17/E) and a certificate as required u/s 65-B of Indian Evidence Act to this effect as Ex.PW17/F & Ex.PW17/G respectively.
State Vs. Madan Kumar - SC No. 188/2010 55/88
In his cross-examination, Sh. Rajeev Ranjan (PW-17) had deposed that the Cell ID Chart (Ex.PW17/E) pertained to relevant towers where the Location of Mobile Number 9268467801 was shown. He had not brought the Cell ID Chart showing the location of Mobile Number 9289503691, though it was available in record. Upon directions, he had also produced and filed on record, the Cell ID Chart (Page 1 to 25) in respect of mobile number 9289503691 with site locations and the same was exhibited as document Ex. PW17/I. 44 PW-18 Sh. Deepak, Nodal Officer, Vodafone Mobile Services Ltd. had proved the relevant documents and the CDR related to the mobile number 9999171551 belonging to Sh. Harpal s/o Sh. Jai Singh, R/o 731, Harsh Vihar, Block-C, Delhi from the period 28th January 2010 to 07th February 2010 as Ex.PW18/A (CA Form), Ex.PW18/B (ID Proof) and Ex.PW14/X (CDR) in 4 Pages. He had also proved the relevant documents and the CDR related to the mobile number 9953838398 belonging to Sh. Virender Singh s/o Sh. Ghamandi Singh, R/o C-318A, Sangam Vihar, Delhi from the period 28th January 2010 to 07th February 2010 as Ex.PW18/C, Ex.PW18/D & Ex.PW18/E collectively (5 Pages). He had also filed and proved the requisite certificate u/s 65-B of Indian Evidence Act as Ex.PW18/F and had placed on record Cell ID Chart as Ex.PW18/G. PW-18 had also proved the relevant documents and the CDR related to the mobile Mobile No. 9899892088 belonging to Sh. Ram Bir s/o Sh. Ghamandi Singh, R/o C-318A, Sangam Vihar, Delhi from the period 01.01.2010 to 31.01.2010 as Ex.PW18/J, Ex.PW18/K & Ex.PW18/L collectively (30 Pages).
In his cross examination, Sh. Deepak (PW-18), had deposed that location as per the ID Chart of the Cell ID No. 22161 related to the Tower installed at Chaudhary Captan Singh Farm House, Holi Chowk, Devli. The aerial radial distance State Vs. Madan Kumar - SC No. 188/2010 56/88 covered by the tower was stated to have varied from half kilometer to one and half kilometer. However, he could not tell the distance of house number C-318A, Sangam Vihar from Chaudhary Captan Singh Farm House, Holi Chowk, Devli or whether in the year 2010 which of the towers had covered the location of C-318A, Sangam Vihar.
He had further deposed that in the CDR (Ex.PW18/E) the location of the mobile number 9953838398 on 28th January, 2010 at 12:56:18 hours to 13:20:02 hours (mark at point A) was shown to be connected with Cell ID Number 22161 and the Cell ID No. 22161 catered the area of Devli as well as C-318A, Sangam Vihar. It was stated further that Cell ID number 63133 was running in position since 2008 till November 2011 at A-14, Okhla, Phase-I, New Delhi and the ID chart (Ex.PW18/G) had not shown the said Cell ID number 63133. However, the record of the said tower was stated to be available and upon being asked, the witness had also produced the aforesaid record related to Cell ID address of tower no. 63133 and then the same was placed on record as Ex.PW18/H. 45 PW-19 Sh. R. K. Singh, Nodal Officer, Bharti Airtel Ltd. had proved the relevant documents and the CDR related to the mobile 9971385141 belonging to accused Madan Lal s/o Sh. Mahavir Singh, R/o C-318A, Block-C, Sangam Vihar, New Delhi from the period 20.01.2010 to 07.02.2010 as Ex.PW19/A (CA Form), Ex.PW19/B (Customer ID Proof) & Ex.PW19/C (CDR) (1 Page). He had also filed and proved requisite certificate u/s 65-B of Indian Evidence Act as Ex.PW19/D. In his cross examination, PW-19 Sh. R. K. Singh, had deposed that the call details of the mobile number 9971385141 were furnished to the police in the year 2010. He had further deposed that the information furnished in the aforesaid CDR had not been stored and preserved till date in the computer system maintained by their company. He had further deposed that they would have preserved the record only, if State Vs. Madan Kumar - SC No. 188/2010 57/88 there was any direction of the Court and they did not preserve any record at the instance of the police. He had further deposed that he was deputed as a Nodal Officer since 1997 and the certificate (Ex.PW19/D) was signed by him on 13th August, 2014. This witness had further stated that the call detail record filed in this case was downloaded by him from the Computer System on 13th April, 2010 and the same was stamped and certified by him and on the basis of certified CDR, he had issued the certificate regarding authenticity of the said record.
However, the depositions of all these three Nodal Officers have lost their relevancy and admissibility in view of the latest pronouncement of Hon'ble Apex Court in "Anwar P. V. Vs. P. K. Basheer & Ors. reported in (2014) 10 SCC 473 " case on the aspect of certificates issued u/s 65-B of Indian Evidence Act. 46 PW-20 Smt. Chanda is mother of Yashoda (since deceased). She had deposed that on 28th January, 2010, at about 10:00 am, she alongwith her husband Sh. Rambir Singh and daughter Chander Kala had proceeded out of house to the places of their work. Her husband had gone to Lajpat Nagar area while she alongwith her daughter had gone to Khadi Gram Udhog Government Center at Rajghat for learning stitching work. Her daughters namely Ms. Rajesh Kumari and Yashoda were staying back at the house while accused Madan Kumar, who was living with them for the last 10-12 years was present at a shop in the area outside the house, but he had come back at the moment, when they had left the house.
PW-20 had further deposed that approximately, at around 01:00 pm, her brother-in-law Virender had informed her telephonically that condition of her daughter Yashoda was critical and she should leave the house. He had further told her that they were taking Yashoda to Majidia Hospital. Therefore, she had proceeded to Majidia State Vs. Madan Kumar - SC No. 188/2010 58/88 Hospital and had reached there at about 02:00/02:30 pm. As soon as, she reached the Hospital, Yashoda was also brought to the Hospital by her brother-in-law Virender and some neighbours. The doctor had checked Yashoda and had declared her to be dead. Thereafter, the dead body of Yashoda was shifted to AIIMS Hospital for postmortem.
It was further deposed by her that before three-four months of the incident, the accused Madan Kumar was having cordial relations with Yashoda, but thereafter, on account of the marriage of Madan Kumar there was some dispute in the House. Father of Madan (accused) had asked them telephonically to sent back Madan Kumar for the purpose of his marriage, but Madan Kumar was not inclined to go back to the native place, whereas Yashoda used to insist to send back him to his native place and due to this reason, Madan Kumar was not having talking terms with Yashoda and there was tension between them. Yashoda also used to ask accused to assist her father in the work as he used to sit idle in the house without any work.
She had also stated that one month prior to the incident, due to tension, Madan Kumar had hit head of her another daughter namely Hemlata, against the fridge, due to which blood had also oozed out from her head. It was further deposed by her that accused Madan Kumar had committed murder of her daughter Yashoda. Accused had disappeared from their house immediately after the incident, after committing murder. Police had also recorded her statement in this regard.
In her cross examination, PW-20 Smt. Chanda had categorically deposed that she was a Social Worker of the Political Party namely Bhartia Janta Party (BJP) and for the social causes, she used to work in the locality of Sangam Vihar and its nearby localities and also used to visit the Government Officers, politicians and police officials frequently. She had further deposed that on 28 th January, 2010, at about 11:00 or 11:15 am, she alongwith her daughter Chandarkala had gone State Vs. Madan Kumar - SC No. 188/2010 59/88 at Rajghat Institution, where they were doing Diploma Courses. At about 01:00 pm, when they were at Rajghat Institution, her daughter Chanderkala had received a mobile telephone call from the home that the condition of Yashoda was serious and upon receipt of the said information, Chandarkala become perplexed and fell down (unconscious). She was brought by her colleagues. When Chanderkala regained consciousness, she alongwith Chanderkala had left for their house and they had reached at home after about one hour.
This witness had further deposed that she had not seen any ligature mark or any mark of injury on the body of Yashoda and Yashoda was admitted by her in the Majidia hospital. She had denied the suggestions put to her by Learned Defence Counsel that she was not pursuing any course at Rajgaht or that she used to remain at home or that on 28.01.2010 she was present at her home.
She had also denied the further suggestions put to her by the Learned Defence Counsel as incorrect that her daughter Yashoda had intended to secretly perform marriage with Bhuwneshwar, with whom she was having a love affair and/or that her daughter, had, at around 08:30 am on 28th January, 2010, left the house secretly for performing marriage with Bhuvneshwar and/or she and her husband Rambir had acquired knowledge in that regard. She had also denied the further suggestions put to her that when they could not find Yashoda at home at about 08:30 am, they (she herself and her husband) inquired about her absence/whereabouts from her daughter Rajesh, who had disclosed her about the plan of marriage of Yashoda with Bhuvneshwar, whereupon she alongwith her husband had gone out of the house in search of Yashoda and they had brought Yashoda back from the bus stand at about 09:30 am and/or they had made attempts/efforts to make Yashoda understand that marriage between her and Bhuvneshwar was not possible but Yashoda was adamant State Vs. Madan Kumar - SC No. 188/2010 60/88 to marry Bhuvneshwar and/or that due to the audacity of Yashoda marrying Bhuvneshwar, a quarrel had taken place between them and they had beaten Yashoda and since she was shouting, her husband had gagged the mouth of Yashoda, so that her sister-in-law (Kamlesh) and Subodh (brother of Kamlesh) could not hear the 'shor- sharaba' and/or in that process of pressing the mouth of Yashoda, accidentally her mouth, nose and neck were pressed forcibly due to which she (Yashoda) had suffered fracture of hyoid bone (neck bone)and she became unconscious. She had also denied the further suggestion that thereafter Yashoda was bolted in the room at the ground floor and thereafter her husband had left the house angrily.
She had also denied the further suggestion put to her by Ld.Defence Counsel that at about 12:15 pm, on 28th January, 2010 she alongwith her daughter Rajesh had opened the door of room, wherein Yashoda was bolted, to inquire and see about her condition, physically or mentally and found her dead and thereafter she had informed about the demise of Yashoda to her sister-in-law (Kamlesh) and Subodh (brother of Kamlesh) and thereafter, Yashoda was taken to Hospital in a pre-planned manner, to pretend that her death was not unnatural.
This witness had further deposed that in the Hospital, no statement of any of her family members was recorded by the police on 28th January, 2010. She had further deposed that as soon as, the Doctor had declared Yashoda dead, she had received the information that the police had reached their house for inspection, but the police had not recorded her statement. She could not even tell as to whether the police had made any inspection or not. She had voluntarily stated that she had remained present at the Hospital and no police official had visited her house in her presence up to the time of recording of FIR. She had also denied the further suggestion put to her by Ld. Defence Counsel that police officials had regularly visited State Vs. Madan Kumar - SC No. 188/2010 61/88 her house and on 28th January, 2010 they had also recorded statements of her family members.
She had further deposed that statements of Virender, Kamlesh and her husband were recorded by the police only on 02nd February, 2010 and prior to that no statement of the aforesaid persons were recorded by the police. She had also denied the suggestion that Virender, Kamlesh and her husband had given a concocted story of death of Yashoda by electrocution with the connivance of all family members to evade truth of her actual cause of death by beatings given by them in the said statement. She had further deposed that she had not told the IO/police at the time of giving her statement that accused Madan was available at a shop near their house at about 10:00 am and accused had remained present in the house and had denied the suggestion put to her that she had not mentioned this fact before police as accused Madan had already left the house at 09:00 am in the morning of 28.01.2010 and had not returned back till evening. She had further stated that even the incident of her daughter Hemlata's sustaining an injury at the hands of accused one month prior to the date of incident was also not narrated by her to the police and had denied the suggestion that since no such incident had ever occurred, hence it was not cited before the police.
47 PW-21 Sh. Manoj Kumar, private photographer had proved the photographs (Ex. 21/A-1 to Ex. PW21/21A-4) of dead body of deceased Yashoda lying in the private ambulance taken by him on 28.01.2010, in the after noon at about 03:30/04:00pm at the instance of the police of PS Sangam Vihar.
In his cross-examination, PW-21 had deposed that he had not provided any CD of the photographs to the IO and could not remember that he had clicked the photographs on the request and instructions of IO/Inspector J. D. Meena. He could not State Vs. Madan Kumar - SC No. 188/2010 62/88 recollect the rank or designation of the police official on whose instructions, he had taken or given the photographs but police had taken the prints of photographs on the same day.
48 PW-22 Sh. Pappu, private photographer had proved the photographs (Ex.PW22/A-1 to Ex. PW22/A-4) of the spot i.e. C-318, Sangam Vihar on 28.01.2010 at the instance of the IO. He had developed the photographs and had given the same to the police officials of PS Sangam Vihar on 15th April 2010.
In his cross-examination, PW-22 Sh. Pappu had deposed that he had not prepared or handed over any CD containing photographs. 49 PW-23 Sh. Parshuram Singh, Assistant Director (Physics), FSL Rohini, Delhi had deposed that on 13th April 2010,one dupatta of yellow colour, measuring approximately 2.45 meter in length marked as Exhibit-1 of this case was received for examination at FSL and had proved his detailed report in this regard as Ex. PW23/A. As per his report,Exhibiti-1 was strong and long enough for strangulation. After examination, case exhibits were sealed with seal of 'PS FSL, Delhi'.
In his cross-examination, PW-23 had deposed that he had not examined the 'dupatta' regarding presence of any stains or presence of 'saliva' there on because the said job pertained to Biological Section.
50 PW-26 Sh.Dinesh Kumar, MRT, Department of Forensic Medicines, AIIMS, New Deli had proved the postmortem report of the deceased as Ex.PW1/A by identifying the hand writing and signature of the concerned Doctor Manish Goel at point-B thereon.
PW-26 Sh. Dinesh Kumar was not cross examined by Ld. Defence Counsel despite opportunity granted to him.
State Vs. Madan Kumar - SC No. 188/2010 63/88 51 PW-25 SI Ajit Kumar had deposed that on 28th January 2010, he was posted at PS Sangam Vihar and on that day, he was on emergency duty between 08:00 am to 08:00 pm alongwith Ct. Ziauddin. He had further deposed that on that day at around 02:00 pm, on receipt of DD No.17-A through Ct. Vijay (DHG), he alongwith Ct. Ziauddin had reached Majidia Hospital from where he had collected MLC No. 7/2010 of Yashoda, daughter of Ram Bir, r/o C-1/318/6, Sangam Vihar and the concerned doctor had declared her as "brought dead" on the said MLC. Thereafter, he had inspected the dead body and had noticed that there was half ligature mark on the neck of deceased Yashoda. At that time, a few family members and neighbours of Yashoda were also present in the Hospital.
He had called a private photographer Manoj Kumar and obtained photographs of the dead body. Thereafter, he had sent the dead body of deceased Yashoda to AIIMS Mortuary to get the dead body preserved through Ct. Ziauddin and had also deputed the said constable to guard the dead body in the aforesaid Mortuary. Thereafter, he had reached at the place of occurrence i.e. First Floor C-318, Sangam Vihar and had inspected the place of occurrence. He had also called a private photographer (whose name was Pappu, as far as he could recollect) at the place of occurrence, who had taken photographs of the place of occurrence. He had also made inquiries from the Family Members of deceased about the incident and thereafter he had returned to the Police Station.
PW-25 had further deposed that on 29th January 2010, he had again visited AIIMS Mortuary, where dead body of Yashoda was identified by Bhoj Raj, her maternal uncle and Virender, her uncle vide their statements Ex.PW8/B and Ex.PW24/A respectively. He had also prepared the inquest report (Ex.PW25/A) and had handed over the same to the Doctor alongwith a request letter (Ex.PW25/B) to State Vs. Madan Kumar - SC No. 188/2010 64/88 perform postmortem and after postmortem, the dead body was handed over to Virender, uncle of deceased Yashoda vide handing over memo Ex.PW12/A. He had further deposed that Ct. Ziauddin had handed over him preserved Viscera Box, blood in guaze, pullanda containing clothes of the deceased and two sample seals of "Department of Forensic Medicine, AIIMS, New Delhi" and he had seized the same vide memo (Ex.PW24/B) and had deposited the aforesaid exhibits in the PS Malkhana. He had further deposed that on 01.02.2010, he had collected Postmortem Report No.113/10 of deceased Yashoda from AIIMS mortuary and thereafter, on the direction of the SHO he had recorded statement (Ex. PW8/A) of Rambir, father of deceased on 02.02.2010 and after making his endorsement (Ex.PW25/C), he got registered the present FIR against the accused. Further investigation was handed over to Inspector J. D. Meena for investigation.
PW-25 had further deposed that on 02.02.2010, he alongwith Ct. Hukma Ram had gone to village Nangla Sumer, Aligarh in search of accused, but he could not be traced out.
He had further deposed that on 07.02.2010, at about 09:30 am, he alongwith Inspector J. D. Meena and Ct. Minda Ram reached at the spot i.e. house no. C-1/318/6, Sangam Vihar and met complainant Rambir Singh, who had also accompanied them to Mangal Bazar in search of accused Madan Kumar and upon his pointing out, accused Madan Kumar was apprehended from near Pandey ki Kothi and accused was arrested vide memo (Ex.PW8/B) and his personal search was conducted vide memo (Ex.PW8/C). Thereafter, disclosure statement of the accused Madan Kumar (Ex.PW8/F) was also recorded and pursuant to the same, the accused had led them to the spot i.e. house no. C-1/318 & 319/6, first floor, Sangam Vihar from where he got recovered one 'dupatta' from under beneath the table lying in the room at first State Vs. Madan Kumar - SC No. 188/2010 65/88 floor, which was stated to have been used in commission of offence and the said 'duppatta' was sealed in a pullanda with seal of JM and the sealed pullanda was taken into possession vide memo (Ex.PW8/D). He had further deposed that the seal of 'JM' after use was handed over to Ct. Minda Ram. IO/Inspector J. D. Meena had also prepared site map (Ex.PW8/E) of place of recovery. Thereafter, accused was brought to the police station. He had also identified the 'dupatta' as (Ex. MO-1) and had also identified the accused before the Court.
In his cross-examination, PW-25 had deposed that after seeing the ligature marks on the neck of Yashoda (deceased), he was not certain about the death of Yashoda that it was homicidal. In the hospital, he could not have identified the parents of Yashoda (deceased) and he alongwith one beat constable and one HC had reached at the house of Yashoda (deceased) at about 04:00pm and he had brought the incident related to death of Yashoda in the knowledge of Inspector Satpal Singh, the then SHO and Sh.Mahipal the then concerned ACP. He had remained present at the house of Yashoda (deceased) for about 30-40 minutes, but he could not tell as to whether the SHO and the ACP had visited the house of Yashoda (deceased).
He had further deposed that he had thoroughly inspected the spot of incident, as stated by the family of Yashoda (deceased) and had also made rough sketch of that room and had also recorded statements of family members, including parents of deceased, which were duly signed by them. He had also recorded signed statements of neighbours.
PW-25 had further deposed that parents of deceased Yashoda had not disclosed any reason and/or cause of her death. Even Virender (chacha) and Kamlesh (chachi) of deceased had also not disclosed anything in this regard. He had further deposed that statements of Rajesh (daughter of Rambir) (Ex.PW7/D-1), Rambir State Vs. Madan Kumar - SC No. 188/2010 66/88 (father of deceased) (Ex.PW8/D-1), Virender (uncle of deceased) (Ex.PW25/D-1) were recorded by him in his own handwriting. He had further deposed that in the signed statement (Ex.PW8/D-1) of Rambir as was recorded by him on 28.01.2010 it was recorded that Rambir had come to know from his family members that while cooking food, his daughter had expired due to electrocution.
He had further deposed that the IO had not asked any public persons/Shopkeep/residents to join investigation related to arrest of accused Madan Kumar.
52 PW-24 Ct. Ziauddin Ahmed and PW-27 HC Hari Om had joined SI Ajit (PW-25) & IO/Inspector J. D. Meena (PW-29), during investigation of this case at different stages. Their relevant depositions shall be discussed while appreciating the deposition of material witnesses, as and when found necessary.
In his cross examination, PW-24 had deposed that they had reached at the Hospital at about 02:15 pm and parents of the deceased Yashoda had not met him in the Hospital. He had not inquired from the family members of Yashoda about the cause of her death or about the marks on her neck. He had remained present at the spot for about 30 minutes, thereafter, he had brought the dead body of deceased to the Mortuary. The photographs of the dead body were taken in the Majidia Hospital itself by PSI Ajit Singh.
He had further deposed that even at the time of handing over the dead body to the relatives of the deceased, he was present there, but he had not inquired from them about the cause of death of Yashoda.
In his cross examination, PW-27 HC Hariom had deposed that on 2nd February 2010, he had remained at the spot with IO, where IO had prepared site plan. IO had also minutely made inspection at point-A (Table) shown in the site plan State Vs. Madan Kumar - SC No. 188/2010 67/88 (Ex.PW27/A) and had also made inspection underneath the table. PW-27 had further deposed that he had not noticed any duppta (weapon of offence) or any incriminating things under the table on the said day i.e. 02.02.2010.
53 PW-29 Inspector J. D. Meena was the subsequent IO of the case and he had deposed that on 02nd February 2010, further investigation of this case was assigned to him after registration of the FIR. After taking over the investigation, he alongwith Ct. Hariom had reached at the spot i.e. C-1/318/6, Sangam Vihar, where the family members of the deceased were found present. First of all, he had inspected the spot at the instance of Ms. Rajesh Kumari, the elder sister of deceased and had prepared the site map (Ex.PW27/A) and then he had recorded her statement. He had also recorded the statements of Ms. Chanda, mother of deceased, Chandrakala & Hemlata, sisters of deceased, Virender & his wife Kamlesh (both are uncle and aunt of the deceased) and statement of their neighbour namely Neelam Chauhan and thereafter, he had returned back to the Police Station. He had further deposed that he had also recorded statement of police officials namely Ct. Hariom (on 02.02.2010), ASI Ajit Kumar (on 04.02.2015), Ct. Vipin, Spl. Messenger and Ct. Ziauddin (on 05.02.2015).
PW-29 had further deposed that on 07th February 2010, he had arrested accused Madan Kumar from Mangal Bazaar Road near Pandey ki Kothi at the instance of complainant vide arrest memo Ex.PW8/B and had conducted his personal search vide memo Ex.PW8/C and had also prepared the body inspection memo of accused Ex.PW29/C. He had then interrogated the accused and recorded his disclosure statement Ex.PW8/F and pursuant to the said disclosure statement, the accused had got recovered the cloth dupatta (Ex.MO-1), which was stated to have been used by him in commission of the offence, from the room at First Floor State Vs. Madan Kumar - SC No. 188/2010 68/88 C-1/318/6, Sangam Vihar. He had sealed the said dupatta (Ex.MO-1) in a cloth pullanda with the seal of 'JM' and seized the same vide memo Ex.PW8/D. He had also prepared the site map (Ex.PW8/E) of the place of occurrence at the instance of accused and thereafter he had returned to Police Station alongwith the accused and had deposited the case property in the Malkhana. Thereafter, accused was got medially examined at RML Hospital, where his MLC was prepared. Two injuries of one week old were noted down in the MLC of accused by the Doctor.
He had further deposed that the MLC of the accused was not available on record and it was later on taken on record from the Police file as Ex.PW29/D. After the medical examination, accused was sent to J/C. PW-29 had further deposed that on 12th February 2010, he had called the Draftsman SI Mahesh and got prepared the site map (Ex.PW6/A) of the place of occurrence at the instance of Ms. Rajesh Kumari and had also recorded statement of Bhuwneshwar.
On 15th February 2010, he had also recorded the statement of Sh. Gaya Prasad, the son of bua of deceased Yashoda. On the next day, he had sent the viscera of the deceased to FSL, Rohini.
On 21st February 2010, he had recorded the statement of Harpal Singh, Fufa of deceased. On 08th March 2010, he had sent a request alongwith the 'dupatta' to the Forensic Department, AIIMS Hospital for seeking opinion as to whether the strangulation is possible with the said 'dupatta' and had obtained the opinion (Ex.PW1/B) on 08th April 2010, as per which Doctor had advised to send the said 'dupatta' (Ex.MO-1) to FSL, Rohini for further opinion and accordingly, he had sent the 'dupatta' to FSL on 13th April 2010.
State Vs. Madan Kumar - SC No. 188/2010 69/88
PW-29 had further deposed that on 09th April 2010, he had recorded the statement of private photographer Manoj and public witness Deepak and had taken into possession the photographs (Ex.PW21/A1 to Ex.PW21/A4.) from Manoj.
On 15th April 2010, he had also recorded the statement of another photographer Pappu, who had also handed over him 4 photographs ( Ex.PW22/A1 to Ex.PW22/A4) of the spot. He had also recorded the statement of Sh. Bhoj Raj, the Mama of deceased, who had identified the dead body of deceased.
On 22nd April 2010, the scaled site plan was collected from the draftsman and he had also recorded the statement of Bhuwneshwar Dayal, the friend of deceased. He had also collected the CDRs of the mobile phones of accused Madan Kumar, PWs namely Harpal Singh & Bhuwneshwar Dayal and placed the same on record. He had further deposed that as per the aforesaid CDR, on 28 th January 2010 & on 01st February 2010,from mobile phone number 9971385141 of Bhuwneshwar telephone calls were being made on mobile phone 9999171551 of Harpal Singh. These calls confirmed the version of Gaya Parsad and Harpal Singh (father and Son), who had informed him that accused Madan Kumar had confessed his guilt on the mobile phone. This witness had further deposed that he had also obtained the CDR and Customer Application Form of mobile phone of Virender and Chanderkala, family member of deceased. He had also proved the subsequent opinion obtained by him in this case as Ex.PW23/A, related to dupatta from FSL, Rohini and after completion of investigation, he had prepared and got filed the charge sheet qua the accused on 02nd May 2010.
In his cross examination, PW-29 had deposed that he had perused the case file after taking over the investigation of this case and had also gone through the statement of complainant Rambir.
State Vs. Madan Kumar - SC No. 188/2010 70/88
He had deposed that he had not examined Dinesh, who had informed Rambir about the condition of deceased and had asked him to reach Majidia hospital and he had also not inquired even about the existence of said Dinesh. He had not asked Rambir as to from which mobile number he had received the telephonic call from aforesaid Dinesh.
PW-29 had further deposed that he had recorded statements of Gaya Prasad and Harpal on 15.02.2010 & 21.02.2010 respectively. He had not interrogated Harpal prior to 21.02.2010 about alleged extra judicial confession. PW-29 had also not conducted any investigation about the phone user of the mobile phone bearing no. 9818279175 from which accused Madan had allegedly made a call to Harpal at his mobile number 9999171551 on 01.02.2010.
PW-29 had further deposed that Rambir had met him for the first time on 07.02.2010 at about 10:00 am, but he had not told him regarding the phone number on which Harpal had received telephonic call of accused Madan, regarding his alleged confession. He had asked Rambir about the telephone number through which Harpal had received call from accused Madan on 30.01.2010 and 01.02.2010, but Rambir could not tell anything in that regard.
PW-29 in his further cross examination had deposed that he had not investigated to find out the names of mobile users of SIM number 9818279175 and 9758119787 through which accused Madan had allegedly made calls to Harpal regarding his confession. He had further stated that during inqueries, Chanderkala had told him that mobile phone number 9278699800 pertained to her friend, but he had not personally inquired her said friend in this case. He had denied the suggestion put to him by the Ld. Defence Counsel that he had personally inquired the user of telephone number 9278699800, from whom he had got the information that the deceased State Vs. Madan Kumar - SC No. 188/2010 71/88 Yashoda intented to secretly perform marriage with Bhuwneshwar at Arya Samaj Mandir, Yamuna Bazaar, Delhi on 28th January 2010 with the help of her sister Chanderkala and/or that he had not made him the witness and he had implicated the accused Madan in this case, on the false and concocted story cooked by the parents and other family members of the deceased to save the parents of the deceased Yashoda. When the IO had been asked to specify the reasons for not placing on record the CDR in respect of number 9289503691 of Chander Kala (Ex. PW17/D), he had deposed that though he had obtained the CDR of said mobile phone, but he had not felt it necessary to file the said CDR with the charge sheet. He had also deposed that he had not verified the attendance of Chander Kala and her mother Chanda at the alleged institution at Rajghat.IO had further deposed that he had also not filed the CDR of mobile phone number 9289273027 of Yashoda (deceased) despite the fact that this number was revealed in the CDR of mobile phone number 9268467801 of Bhuwneshwar, a friend of deceased.
PW-29 had further deposed that he had not recorded statement of Subodh whose name had appeared during statement of Kamlesh (Ex. PW29/X-1), as per which Subodh was present at the spot on 28.01.2010. He had visited the spot i.e. at first floor of the property bearing no. 318/6, C block, Sangam Vihar at about 09:35pm, for the first time on 2.2.2010 and at that time all the family members excluding Rambir had met him there. He had conducted thorough inspection of spot including table under which the dead body of Yashoda was stated to have been lying. Thereafter on 7.2.2010, he had again made the thorough inspection of spot including table, but he could not tell as to whether "dupatta" (weapon of offence) was lying under the table or not. He had further deposed that he had not made any witness from public persons to the arrest of accused Madan in this case. He had, however, denied the State Vs. Madan Kumar - SC No. 188/2010 72/88 suggestion put to him by Ld. Defence Counsel that he had planted "dupatta" (weapon of offence) at the instance of Rambir and his family members on 07.02.2010 and he had also falsely roped the accused in this case at their instance. 54 As no other witnesses remained to be examined, PE was closed and thereafter, statement of the accused u/s 313 Cr. PC, wherein the accused had denied all the incriminating circumstances and evidence appearing against him on record and put to him in toto and claimed that he was falsely implicated in this case. He had denied to have disappeared from the house and stated that on 28.01.2010 he had left the house at about 9:00 am as he had some urgent piece of work at Saket and thereafter, he had returned back to the house at about 3 pm. When he reached the house, he found Rajesh Kumari (PW7) was weeping and upon his query, she had replied that Yashoda had died in the Majidia Hospital, Delhi and after knowing this fact he immediately rushed to the hospital, where all of the family members of Rambir (PW7) met him. He came back to the house at Sangam Vihar at about 05:30 pm alongwith all the family members of Rambir (PW7) and had remained there in the night of 28.01.2010. On 29.01.2010 he had also participated in the cremation of Yashoda which was held in a cremation ground near Sangam Vihar, Devli Village. On 30.01.2010, he alongwith his brother Mahender had taken the ashes of Yashoda from the cremation ground and had gone to Garh Ganga (Brij Ghat), UP for disposal of her ashes in the holly river Ganga. After disposal of her ashes, he alongwith his brother Mahender had come back to the house of Rambir (PW7) at Sangam Vihar on the same day i.e. 30.01.2010 and on 31.01.2010, he alongwith his brother Mahender went to his native village Nagla Sumer, District Aligarh, UP where he had remained upto the night of 06.02.2010 and on 07.02.2010 he alongwith his said brother had again come back to the house of Rambir (PW7) at Sangam Vihar to attend the 'tehravi' (13th day of State Vs. Madan Kumar - SC No. 188/2010 73/88 the rituals as per Hindu Mythology) of Yashoda which was to be held on 09.02.2010. 55 It was further stated by the accused in his examination under section 313 CrPC that during discussions and conversations with other family members of Ramvir, he came to know that death of Yashoda had taken place due to the beatings of Ramvir and his wife Chanda on account of her insistence (Yashoda's) to get herself married with Bhuvneshwar without their consent.
56 The accused had also examined four witnesses, namely, Sh. Anbeer (DW-1), Sh. Mahender (DW-2), Sh. Rishi Pal (DW-3) and Sh. Raj Pal (DW-4) in his defence.
57 DW-1 Sh. Anbeer had deposed that on 28.01.2010, he had come to know about the death of Yashoda. Rambir who was his uncle in relation, had made a telephonic call to his father Sh. Tulsi Singh at about 03:00pm on 28.01.2010 and had informed him about the death of Yashoda. On receipt of said information, all his family members, i. e. he himself alongwith his father Sh. Tulsi Singh , Mahender (his cousin), Sh. Hazari (his chacha) and Smt. Gyan Devi (his chachi) had come together from Aligarh at the house of Rambi's house at Sangam Vihar, Delhi and had reached there at about 09:00pm. They saw that all the relatives and neighbours were present at the house of Rambir. Dead body of Yashoda (deceased) had already been sent for postmotem at AIIMs Hospital. He had further deposed that on 28.01.2010, he had also seen accused Madan Kumar at the house of Rambir. Accused Madan Kumar was also present there. During conversations with Rambir and his wife about the cause of death of Yashoda, they had informed them that death of Yashoda had taken place due to electrocution, while she was cooking food on electric heater. On 29.01.2010, during conversations with Virender, Smt. Kamlesh (his wife) and Subodh, he and his family members came to know that there was ligature marks on the neck of Yashoda State Vs. Madan Kumar - SC No. 188/2010 74/88 (deceased) and death of Yashoda had taken place due to beatings given by Rambir and his wife. On 29.01.2010, at about 04:00pm dead body of Yashoda was cremated. At that time he had also seen Madan at the house of Rambir as well as at the cremation of Yashoda. Thereafter, he alongwith family members came back to his village except Mahender.
This DW had further deposed that he had seen accused Madan Kumar at his village Nangla Sumer, District Aligarh, UP from 01.02.2010 to 06.02.2010.
In his cross-examination by Ld. Addl. PP for the State, DW-1 Anbeer had deposed that he could not tell about the mobile number of his father, on which he had received information of death of Yashodha given to him by Rambir.
He had further deposed that he had reached Delhi on 28.01.2010 at about 09.00PM. At that time dead body of Yashodha was not there at her house and he had seen the dead body only on 29.01.2010 in the cremation ground and there he had noticed the ligature marks on the neck of Yashodha (deceased) and after cremation of the dead body of Yashoda, all of them had returned to their native places at about 08.00 PM of 29.01.2010 and during their stay, the police had not come to the house of Rambir.
DW-1 had deposed in his further cross examination that he had talked to accused Madan at the house of Rambir and accused Madan had told him that while the deceased was cooking on heater, she got electrocuted and had died.
DW-1 in his further cross-examination had deposed that he had not told the police about the the information given by Rambir that his daughter Yashoda had died due to the electrocution. He had voluntarily stated that police had not met him. He had denied the suggestion put to him by Ld. Addl. PP for the State that he had not seen accused Madan at house of Rambir and in the cremation ground on 28.01.2010 State Vs. Madan Kumar - SC No. 188/2010 75/88 and 29.01.2010 and/or that he had deposed falsely in order to save the accused. 58 DW-2 Sh. Mahender Pal had deposed that on 28.01.2010, he was present at his residence at his village Nangla. His chahca Rambir had made telephonic call to his another chahca Sh. Tulsi Singh at about 03:00 pm on 28.01.2010 and had informed him about the death of Yashoda. Thereafter, they had arranged a car and all of them with other family members rushed towards the house of Rambir, at Sangam Vihar, Delhi and reached there at about 09:00pm. They came to know that dead body of Yashoda (deceased) had already been sent for postmotem at AIIMs Hospital. He had stated further that from his village, he alongwith Sh. Tulsi Singh, Sh. Hazari ( chacha) and Smt. Gyan Devi ( chachi) and Anveer had come together from Aligarh at the house of Rambir. At the house of Rambir, on 28.01.2010, he saw accused Madan Kumar, Rambir, his wife Chanda, Virender, Kamlesh, Subodh and many other relatives. During conversations with Rambir and his wife Chanda about the cause of sudden death of Yashoda, Rambir had informed them that death of Yashoda had taken place place due to electrocution, while she was cooking food on electric heater.
This DW had further deposed that he had remained at the house of Rambir till 31.01.2010. On 29.01.2010, when they had taken the dead body of Yashoda for cremation, he had seen minor marks of injury on the neck of Yashoda (deceased). During conversations with Virender and Smt. Kamlesh (his wife), they had told them that Rambir and his wife Chanda had beaten Yashoda and she had died because of that beating alone. On 29.01.2010, he had also seen Madan at the house of Rambir as well as at the cremation of Yashoda.
DW-2 had further deposed that on 30.01.2010, at about 09:00/10:00am he alongwith accused Madan had gone to Brij Ghat, at Garganga, UP to disburse the State Vs. Madan Kumar - SC No. 188/2010 76/88 ashes of Yashoda (deceased) and had returned back at the house of Rambir at about 07:00 pm. He had remained at the house of Rambir till 31.01.2010 and on 31.1.2010 at 09:00am he had accompanied Madan to the village, Nangla Sumer. Since, "tehrnwi" was fixed on 09.02.2010, hence, he alongwith Madan had returned back at the house of Rambir on 07.02.2010 at 09:15 am. On that day, after sometime, police had come and had taken away Madan to the police station on the pretext of recording his statement. At that time he had also gone to the police station where he had come to know that police had put him in the lock up.
In his cross examination DW 2 Sh. Mahender Pal had deposed that accused Madan was his real brother, who was residing alongwith his uncle Rambir at Sangam Vihar, New Delhi. He had also denied the suggestion put to him that he alongwith accused Madan had not gone to Brij Ghat at Garh Ganga, UP to disburse the ashes of Yashodha.
DW-2 in his further cross-examination had deposed that he had not told the police about the the information given by Rambir that his daughter Yashoda had died due to the electrocution. He had denied the suggestion put to him by Ld. Addl. PP for the State that had deposed falsely in order to save the accused. 59 DW-3 Sh. Rishi Pal had deposed that on 28.01.2010, he came to know about the death of Yashoda telephonically through Rambir, who was the father of deceased. Rambir was known to him being his friend and they were on visiting terms with each other. On 29.01.2010, at about 02:00 pm he had reached Sangam Vihar at the residence of Rambir. The cremation of Yashoda had taken place on 29.01.2010 at about 04:00pm. He met Rambir and his family member at his house and also saw accused Madan Kumar at their house and he had also seen Madan Kumar in the cremation ground, where cremation of Yashoda had taken place. State Vs. Madan Kumar - SC No. 188/2010 77/88
In his cross examination by Ld. Addl. PP for the State, DW-3 had denied the suggestion put to him that he had not seen accused Madan either at the house of Rambir on 29.01.2010 or at the cremation ground at the time of performance of last rites of Yashodha on 29.01.2010 and/or that he had deposed falsely in order to save the accused.
60 DW-4 Sh.Raj Pal had deposed that on 28.01.2010, at about 05:00 pm, Rambir (his maternal uncle) had telephonically informed him about death of Yashsoda. Thereafter he had visited the house of Rambir at Sangam Vihar on 29.01.2010 and had reached at the house of Rambir at about 12:00 noon. At that time, dead body of the Yashoda was not present there. The dead body of the deceased Yashoda was brought to the house only at about 02:00 pm after postmortem. When he had reached at the house of Rambir, he met Rambir and his wife and his all family members. He had also seen accused Mandan Kumar in the house of Rambir on 29.01.2010. The cremation of Yashoda had taken place at about 04:00/05:00 pm, on 29.01.2010. He had also attended the cremation of Yashoda. In the cremation ground, he had seen Madan. The relatives of Rambir, male members of family of Rambir and neighbours of the Rambir took participation in the cremation of Yashoda. Accused Madan had also participated in the cremation of deceased Yashoda. After Cremation of Yashoda, he had come back to his house.
Similarly, DW-4 had also denied the suggestion of the Ld. Addl. PP in his cross-examination that he had not seen accused Madan either at the house of Rambir on 29.01.2010 or at the cremation ground at the time of last rites of Yashodha on 29.01.2010 and/or that he had deposed falsely in order to save the accused. 61 I have heard submissions advanced by Sh. Inder Kumar, Ld. PP for the State and Sh. Anil Rana Learned defence counsel for accused and have perused the State Vs. Madan Kumar - SC No. 188/2010 78/88 record.
62 Learned Addl. P.P. for the state has submitted that in this case, death of Yashoda (deceased) has been duly proved to be homicidal in nature and on this aspect, Ld. Addl. PP has relied upon the testimony of Dr. Sanjeev Lalwani (PW-1) and Dr. Manish Goel (PW-28), who had conducted and proved the postmortem report as Ex. PW1/A. 63 Learned Addl. PP has, however, fairly conceded that there is no direct evidence or eye witness of the incident and the case of prosecution rests solely on circumstantial evidence.
The first circumstance relied by the prosecution is the presence of accused at the spot at the time of incident and on this aspect, Ld. Addl. PP had heavily relied upon the testimony of Neelam (PW-2), in addition to the testimonies of Rajesh Kumari (PW-7) sister deceased and Chanderkala (WP13) and Chanda (PW-20). 64 On the other hand, Ld. Defence Counsel Sh. Anil Rana has submitted that since the chain of circumstances tried to be built up by the prosecution in this case is miserably missing, hence, the accused is entitled for his honourable acquittal because the family of the deceased had not suspected any foul play at the initial stages and it was only after the result of the postmortem that accused, who was an easy pray had been falsely roped in this case by the family of the deceased. 65 Admittedly, the prosecution case is entirely and solely based on circumstantial evidence and leaving aside the formal witnesses in this matter, it essentially revolved upon the testimony of five witnesses in all i.e. PW-7 Rajesh Kumari, PW-13 Smt. Chandrakala, PW-20 Chanda as well as PW-8 Rambir, who happened to be the father of the deceased Yashoda and PW-10 Harpal Singh before whom the alleged "extra judicial confession" was made by the accused. State Vs. Madan Kumar - SC No. 188/2010 79/88 66 If their testimonies are examined minutely and carefully, then there appears many glaring lapses and lacunas in the prosecution story, which cannot be brushed aside or ingored or can be taken up in a lighter manner by any stretch of imagination.
67 PW-7 Rajesh Kumari herself had deposed that on the date of incident her parents alongwith her younger sister Chanda had left the house at around 10:00 am for going to institution at Rajghat leaving behind this witness and the deceased at home and it was about 11:00 am that she had seen the accused coming to her room to take his belongings and one bag and thereafter, he had walked out from the room and proceeded towards room on the first floor, where deceased was stated to be preparing bread (chapati). However, this witness had nowhere stated that she had also seen the accused coming down from the first floor as well. As per this witness, it was only at about 11:30 am, when she had also gone to the first floor to assist her sister that she had seen her sister lying unconscious on the floor with her head out of table and rest of her body lying under the table and immediately she had raised an alarm on which her aunt Kamlesh (PW-11) and some neighbourers had also gathered at the spot and if, the version of PW-11 Smt. Kamlesh, who happened to be the aunt (Chachi) of the deceased and was living in the adjacent room from the spot of incident is to be believed, the incident had taken place at around 09:00/09:30 am and not at around 11:30 am as claimed by PW-7.
68 Further, though PW-7 Rajesh Kumari had initially claimed that she had seen the ligature marks on the neck of deceased, but she had taken an entirely different stance in her further examination in chief recorded on 19.04.2012, wherein she had categorically stated that she had not noticed any marks or injury on the body of her deceased sister.
State Vs. Madan Kumar - SC No. 188/2010 80/88 69 It is also interesting to note here that as per PW-7, when PW-12 Virender Singh, who happened to be the uncle (Chacha) of deceased, had tried to put some milk in the mouth of her deceased sister Yashoda, the deceased had not responded to the same and had not swallowed the milk below her neck, which version of this witness is quite contradictory to the version of PW-12 himself, when he had stated that he had poured the lukewarm milk in the mouth of the deceased and the deceased had started sipping the same.
70 As per the version of PW-8 Rambir Singh, who happened to be the complainant in this case and father of the deceased, the accused had left the house in the early morning around 09:00 am for some work at Saket, but his version had also been contradicted by other witnesses, who happened to be his family members and were stated to be accompanying him on the date of incident. PW-13 Chanderkala (sister of deceased Yashoda) had stated that she had seen the accused present in her house at about 10:15 am, when she alongwith her mother Chanda (PW-20) and father Rambir (PW-8) was leaving her house for her institute, her deceased sister Yashoda had come to the main door of the house to see them off and she had seen the accused standing at 'chajja' of their house. Witness PW-20 Chanda, on the other hand had claimed that when she was leaving her house at around 10:00 am, she had noticed the accused standing at the shop in the gali, who had later on come back to the house. Different versions of all these witnesses had made the accused omni present at all points of time at all the possible and probable places. 71 It is also interesting to note here that as per the version of PW-13 Chanderkala (sister of the deceased), her father PW-8 Rambir had dropped her and her mother at Rajghat Institute on his scooter, where they used to attend classes from 11:00 am to 04:00 pm. On the other hand, PW-8 Rambir had categorically stated that State Vs. Madan Kumar - SC No. 188/2010 81/88 he had dropped his wife and daughter at Lajpat Nagar red light from where they had taken a bus for their Institute at Rajghat.
72 No investigation has been conducted by the IO in this case to establish the fact that PW-13 Chanerkala and PW-20 Chanda were attending any such courses at Rajghat institute, as was claimed by them and also the mobile call details of PW-13 had falsified this fact of her attending any institute because the location of her mobile phone at 12:37 pm was at Ansari Road, Daryaganj and at around 01:00 pm, the same was at Greater Kailash.
73 Even, if the version of PW-13 is accepted to be true for the sake of arguments then as per her version immediately within 5 minutes of her reaching the institute, she had received a phone call regarding the condition of her sister Yashoda (since deceased). Hence, if it is presumed that PW-13 had reached her institute at 11:00 am, then at best, she would have received the said call at around 11:05-11:10 am, which fact is contradictory to the case of the prosecution itself as per which, it was only after 11:30 am that PW-7 Rajesh Kumari had discovered her sister Yashoda lying unconscious in the said room.
74 Not only this, but also version of PW-20 Chanda, who happened to be the mother of the deceased had also contradicted the version of PW13 Chandrakala, who had stated that it was only at 01:00 pm that she had received the phone call on the mobile phone of her husband regarding death of her daughter from her brother-in- law Virender Singh and she had also stated that her brother-in-law had also asked her to leave the house, which fact again casts a serious shadow of doubt on the version of PW-13 and PW-20 that they were attending the classes at Rajghat. Had it been the case, then by no stretch of imagination, PW-12 Virender Singh would have not asked PW-20 to leave her house. Even PW-13, after receiving this intimation had claimed State Vs. Madan Kumar - SC No. 188/2010 82/88 that she had immediately left the institute alongwith her mother by a TSR to reach Majidia Hospital at around 02:00 /02:30 pm and when they had reached the said hospital, by that time her deceased sister was not brought there. There are stark contradictions in the versions of these two witnesses who as per prosecution were together since morning when they had left their house to go to their Institution. As per PW 13, beside her own phone she was also carrying the mobile of her father on the day of incident, where as PW 20 had claimed herself to have received the call on her husbands mobile.
75 If it is presumed that by 11:10 am, they were informed about the condition of deceased, and they had immediately rushed back, then by no stretch of imagination it could be presumed that they would have taken more than 2 ½ hours to reach their home/hospital from Rajghat and that too in a TSR. 76 As per PW-13(Chanderkala) she had no knowledge about the person who got her sister admitted to the hospital. This version of PW-13 is again contradictory to the version of PW20 (Chanda), her mother, who had stated that she alongwith her daughter (PW-13) after coming to know about the condition of her daughter Yashoda(since deceased), had reached her house at 1.00 PM from Raj Ghat and it was PW20 herself who had got Yashoda (since deceased) admitted in the hospital where as PW 13 had claimed that she and her mother had directly reached at the hospital and had not gone to their house from Rajghat.
77 Though the family members of the deceased had talked about strained relations between the accused and the deceased for past quite some time, but PW-11 Smt. Kamlesh, who happened to be the aunt (chachi) of the deceased and was living in the room at first floor next adjacent to the room, i.e. the place of incident, had negated their claim by saying that she had no knowledge about any strained State Vs. Madan Kumar - SC No. 188/2010 83/88 relationship between the accused and the deceased.
78 Statement of PW-2 Smt. Neelam also becomes important in this regard to ascertain the presence of accused at the spot at the time of occurrence. As per this witness, she had seen the accused in the morning at around 9.00 AM in the street but she had not seen him while coming back to house or going from his house till 5.00 PM, the time she remained at her shop. I do not find any reason to disbelieve the version of this sole independent witness, who had discharged all the functions of a good neighbour at the crucial time faced by family of the deceased. 79 All these contradictions appearing in the testimonies of the material witnesses related to the presence of the accused at the scene of crime at the relevant point of time are sufficient enough to create serious doubts in the story of the prosecution to raise suspicion especially about its genuineness and truthfulness. Hence, I have no hesitation in holding that the prosecution has miserably failed to establish the presence of the accused at the relevant point of time at the scene of crime, when the offence was stated to have been committed by him. 80 So far as the "extra judicial confession" as tried to be built up by investigating agency by including two PWs, namely PW10- Harpal Singh and PW-14 Gaya Prasad is concerned, the testimony of PW14 is totally based on hear-say as he had never claimed to have ever talked to accused or heard any conversation of the accused himself. Hence, his entire testimony in this regard is liable to be discarded in its totality.
81 So far as the statement of PW10 Harpal Singh is concerned, if his testimony is examined carefully, then, it become apparently clear that this witness could not tell the telephone number from which the accused had made a call to his mobile phone for making the alleged "extra judicial confession". Not only this, but State Vs. Madan Kumar - SC No. 188/2010 84/88 also, even the IO had also failed to make any investigation in this regard to trace out the telephone number from which the alleged call was made by the accused to PW10. Moreover, it is settled proposition of law that a confession in order to be an "extra judicial confession" has to be in clear, unambiguous and unequivocal words and from the language re-produced in his testimony, no "extra judicial confession" is made out from the said sentence as narrated by him.
82 So far as the recovery of "dupta" from the spot of crime, allegedly at the instance of the present accused is concerned, it is interesting to note here that the police had been regularly visiting the said room since the day of incident, i.e. 28.01.2010 and it had also been claimed by them that they had also minutely inspected the spot and had not found anything incriminating there. Even family members of the deceased were also using the said room in a routine manner till 02.02.2010 when FIR was got registered but none of them (either the police officials or the family members of the deceased living in the said house) had seen the said "dupta" lying in the room before the said day, but it was miraculously recovered at the instance of the accused on 7.2.2010, i.e. after 10 days of the incident from the said room and that too from underneath the table which was open and exposed to every body living in the said house because the said room was never sealed by the police and was regularly used by the family of deceased.
83 It is also interesting to note here that as per the version of the police officials, they had apprehended the accused in the morning of 7.2.2010 at about 10.00AM after which he had led them to the spot of occurrence and got the said "duptta" recovered. But perusal of his arrest memo shows that the accused had been arrested in this case only at around 11.00 AM. Once the accused himself was arrested at 11.00AM, then the alleged recovery of "duptta" made at his instance at 10.00AM or State Vs. Madan Kumar - SC No. 188/2010 85/88 10.15 AM is nothing but an after thought and a concocted story of the prosecution to somehow implicate the accused in the present case. There were no finger prints or DNA samples of accused which were found present on the said "duptta" so as to connect him with the commission of crime. Not only this, but also, the arrest of the accused in the present case had also become mysterious, particularly in view of the fact that none of the witnesses had either justified or explained as to what prompted them to reach directly at Pandey Ki Kothi, Mangal Bazar, Sangam Vihar, New Delhi where the accused was allegedly found roaming and was easily arrested by the police at the instance of the complainant PW-8 Rambir, because if version of IO SI Ajit, Insp. J D Meena and even constables who had accompanied them, is to be believed as gospel truth, then in the morning they had reached at the house of the complainant where complainant had met them and after joining him in investigation, all of them had immediately reached at Pandey Ki Kothi, Mangal Bazar, Sangam Vihar where complainant had pointed out towards the accused, who was arrested then and there by the police officials. It is not at all the case of any of the police officials that they were having any prior secret information about presence of the accused at that particular spot, hence, non-explanation of the circumstances which led the police party to directly reach at that particular place also casts a serious shadow of doubt and suspicion as to the truthfulness and authenticity of the prosecution version related to the arrest of the accused from the place where he was allegedly apprehended and arrested in this case.
84 It is also interesting to observe here that immediately after death of Yashoda, the police team had recorded statements of all the family members on the very same day, which have been placed on record as Ex.PW7/D1 (Rajeshwari), Ex.PW25/D1 (Virender singh) Ex.PW29/X-1 (Smt. Kamlesh) and such other State Vs. Madan Kumar - SC No. 188/2010 86/88 statements of complainant Rambir, Smt. Chanda, which were also admitted by them during the course of their examination in the Court, wherein none of them had raised any suspicion about the death of Yashoda or raised any finger of suspicion towards accused at the first available instance and had taken a stand regarding her death due to electrocution and suddenly after the postmortem of deceased, because the death of Yashoda was opined to be by smothering and strangulation, all these witnesses have started raising hues and cries and had levelled allegation against the accused herein.
85 Even the four witnesses examined by the accused in his defence, leaving apart DW2 Mahender Pal, who happened to be real brother of the accused, remaining three DWs, namely, DW1 Anbeer, DW3 Rishi Pal and DW4 Raj Pal also happened to be the close relatives of the complainant as well. Not only this, but also they had also attended the cremation of deceased Yashoda and had testified the presence of the accused at the time of cremation of the dead body of deceased as well as his visit to Garh Ganga for the purpose of disbursal of ashes (phool) of deceased in Holy Ganga. The prosecution could not raise any valid point or argument to show that these witnesses were interested witnesses in any manner whatsoever or they were not worthy of any credibility being given or attached to their version and no reasons had been put forth from the side of the prosecution to show as to why these witnesses, who were equally related to both the parties, would have deposed falsely in favour of the accused.
86 In view of my aforesaid discussion and observations, I have no hesitations in arriving at a conclusion that the prosecution has miserably failed to bring home and establish the guilty of accused beyond shadow of any reasonable doubt on record. As a result of this opinion of mind, the accused is acquitted of the charge for State Vs. Madan Kumar - SC No. 188/2010 87/88 the offence alleged to have been committed by him.
87 Since Madan Kumar is in custody, the Superintendent Jail is directed to release him forthwith from custody in this case, if he is not required to be detained in any other case.
88 Madan Kumar is directed to furnish his personal bonds and surety bonds in the sum of Rs.10,000/- under section 437-A Cr.PC within a week, from today after his release from the custody.
89 The case property, if any, be destroyed after expiry of the period of appeal, if any.
90 File be consigned to record room after completion of all other necessary formalities.
announced in the
open Court
on 12th May 2015 (Lokesh Kumar Sharma)
Additional Sessions Judge-04 & Special Judge
(NDPS) South East, Saket Court/New Delhi
State Vs. Madan Kumar - SC No. 188/2010 88/88