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Delhi District Court

The Case Of The Prosecution In Brief Is ... vs State Of Punjab on 31 March, 2010

IN THE COURT OF MS.POONAM CHAUDHARY, ASJ  (CENTRAL­01) 
                       : DELHI

FIR NO.        :  213/06
P.S.           :  Pahar Ganj
u/s            :  302 IPC

STATE 


VERSUS 

Ramesh Sabbarwal
S/o Late Sh. Chaman Mal Sabbarwal
R/o House no. 17/88, Subhash Nagar, 
Delhi. 

        Arguments heard on                    : 30.03.2010
        Judgments reserved for                : 30.03.2010
        Judgments announced on                : 31.03.2010



J U D G M E N T

1. The case of the prosecution in brief is that on the intervening night of 27/28.04.2006, at unknown time, at Flat no. 140­C, IInd Floor, Motia Khan, LIG flats, Pahar Ganj, Delhi accused committed the murder of Jai Shree and thereby committed an offence punishable under Section 302 IPC.

2. After completion of the investigation charge sheet was filed against the accused for the offence under section 302 IPC. The Ld. MM took cognizance and committed the case to the court of sessions. The accused was charged for the offence punishable u/s 302 IPC. FIR No. : 213/06 1

3. The prosecution has examined 31 witnesses in support of its case.

4. PW 1 Shri Ritesh Kumar deposed that on 28.4.2006 at about 4.25 AM, he received a telephonic call from accused, whom he correctly identified, informing that Jai Shree Sharma (his sali) who was residing in house no. 140­C LIG Flats, Motia Khan had expired. He stated that he inquired from the accusd the cause of her death on which accused told him that Jai Shree Shamra ahd died due to some illness. He further stated that he got suspicious and reached the house of Jai Shree Sharma with his mother and wife at 6.30 AM. He further stated that in the meantime they also informed the parents and relatives of the deceased. He further testified that on reaching the house of Jai Shree they found the dead body of Jai Shree lying on her bed. He also testified that he informed the police . He further stated that SI Rao from PS Pahar Ganj reached the spot and conducted the investigation. He also stated that postmortem of Jai Shree Sharma was conducted at Lady Harding Hospital. He further testified that he and his brother in law Girish Sharma identified the dead body of Jai Shree and his statement regarding the identification of the dead body was Ex. PW 1/A which bears his signatures. After the postmortem dead body was handed over to them at the mortuary vide receipt Ex. PW 1/B.

5. PW 31 SI Maruti Rao had deposed that on 28.04.2006 he received DD no. 7/A Ex. PW 30/A at about 7.55 AM regarding death of Jai Shree in flat no. 140­C Motia Khan, Pahar Ganj New Delhi. He also stated that information was given by one Ritesh Sharma and on receipt of the same he along with Ct. Ramphal Gaur reached the spot and found that Jai Shree lying on the bed. He conducted the search of deceased and gave information to SHO and senior officials. He also stated that SHO and senior officials reached the spot. He further FIR No. : 213/06 2 stated that at the instruction of the SHO he informed the crime team and crime team reached the spot. He also testified that Incharge crime team SI Anil Kumar inspected the spot and photographer Ct. Ved Prakash took the photographs of the spot on his direction.

6. PW 14 SI Anil Kumar Incharge crime team stated that on 28.04.2006 he visited the flat no. 140 ­C Motia Khan, Pahar Ganj New Delhi along with other staff and inspected the scene of crime. He further stated that no chance prints could be lifted and he gave his report to the IO. Ex. PW 14/A.

7. PW 6 Ct. Ved Prakash stated that on 28.04.2006 he was posted in crime team as a photographer and accompanied SI Anil Kumar Incharge of Crime team to flat no. 140­C Motia Khan, Pahar Ganj New Delhi and at the direction of the IO and he took 8 photographs of the main gate and the bed on which lady was lying. He also stated that 6 positives photographs were Ex. PW 6/1 to 6 and negatives of the same were Ex. PW 6/7 to Ex. PW 7/14.

8. PW 30 IO/ ACP Mohan Singh stated that on 28.04.2006 he was posted as SHO at PS Pahar Ganj and he entrusted DD no. 7/A Ex. PW 30/A to SI Maruti Rao regarding the death of one Jai Shree at flat no. 140­C Motia Khan, Pahar Ganj which is Ex. PW 30/A. He further testified that he along with ACP Pahar Ganj visited the spot. He also deposed that SI Maruti Rao conducted the inquest proceedings and crime team and photographer reached the spot. SI Maruti Rao sent the dead body to LHMC mortuary.

9. PW 8 Sh. Baldev Singh deposed that in the year 2006 he was working as a chef at Imperial Hotel, Delhi and on the intervening night of 27/28.04.2006 he reached his house no. 142 DDA Flat Motia Khan, Pahar Ganj as his duty hours were between 3.00 PM to 1.00 AM and while he was climbing the stairs he saw accused, whom he correctly identified, and accused inquired from him the reason FIR No. : 213/06 3 of coming late in reply to the same he told the accused that he used to come his house at that time in routine .

10. PW 4 Dr. J. S. Kochar deposed that on the intervening night of of 27/28.04.2006 at about 4.30 AM Ramesh Sabbarwal came along with 2­4 persons to her house and told her that one lady Jai Shree Sharma was lying on the bed at house no. 140 LIG Flats and requested to check her and on their request she reached the above said house and examined Jai Shree Sharma and found that she was dead. She also stated that she told that persons present to take the deceased to government hospital. She further stated that IO recorded her statement in this regard. Her testimony had gone unchallenged.

11. PW 2 Ms. Raj Bala stated that deceased was her (nanad) sister in law and further stated that in the year 2001 Jai Shree had lodged the FIR against her Mama Praveen Sharma for committing rape upon her. She further stated that when the case started in court accused, whom she correctly identified, whom Jai Shree used to call Mausa Ji, met Jai Shree and assured to help her in the said case. She also testified that as they had faith in the accused they allowed him to reside in the house with Jai Shree and her mother. She also stated that Jai Shree was running a beauty parlour and after some time accused started extorting money as well as pension which her mother in law used to get. She further stated that when her mother in law objected to the same accused quarreled with her. She further deposed that 1 year prior to the incident accused threw her mother­in­law out of the house. She also stated that Jai Shree used to tell her mother not to quarrel with accused as he would damage her rape case. She also stated that at the time when her mother in law was expelled form the house by accused her husband Girish Sharma had visited the accused and asked him to hand over the FIR No. : 213/06 4 papers of rape case of Jai Shree so that he may pursue it but accused did not do so.

12. PW 2 further stated that on 28.04.2006 at about 7.15 AM when they were at Bahadur Garh, her husband received a telephonic call from his cousin Vidya informing that Jai Shree had expired. On receipt of the information she along with her husband immediately reached 140­C, Motia Khan, LIG flats, Pahar Ganj, Delhi between 8.00 AM to 9.00 AM from Bahadur Garh. They found Jai Shree lying on the bed and she had passed urine and stool on bed. She further stated that her sister in law Jyoti, her husband Ritesh, his parents and police official were present there. She also deposed that police called the accused and interrogated him whereupon he told the police that he had visited Jai Shree at 7.30 PM on 27.07.2006 and returned at about 8.30 PM. Thereafter he went to his friends at Sadar Bazar and played cards with them. She stated that accused was further interrogated and his version was found suspicious as his wife Bindu who was also present stated that accused was at his house at 3.00 AM whereas accused stated that he was at Bangla Saheb Gurudwara at 3.00 AM .

13. PW 2 also stated that on 4.05.2006 she was at house of Jai Shree at 140­ C, IInd Floor, Motia Khan, LIG flats, Pahar Ganj, Delhi when accused came and told that he had committed the murder of Jai Shree and stated "Mujhe maaf kar do aur kisi tarah bacha lo" . She stated that accused was weeping at that time and left before she could respond. She deposed that she told her husband about the confession of accused. Thereafter her husband went to PS to reported the matter to the police. She also stated that thereafter her statement was recorded by Ld. MM on 7.07.2006 which is Ex. PW 2/A which bears her signatures at points A, B, C and D.

14. In her cross examination she stated that prior to the incident they were FIR No. : 213/06 5 residing at Bahadur Garh but after the murder of Jai Shree they shifted to house no. C­140, Motia Khan, LIG flats, Pahar Ganj, Delhi and they sold their house at Bahadur Garh after the incident although he had entered into agreement to sell the house prior to the incident. She further stated that when they reached at C­140 Motia Kahan LIG Flats Pahar Ganj after receiving of information, accused was not present and her husband told her that accused was in police custody. She further stated that she could not tell the time when the dead body was removed but it was evening time and deceased was cremated on on 28.04.2006 but accused was not present at the cremation. She also stated that accused was brought to Flat no. 140­C Pahar Ganj, New Delhi at about 2.00­3.00 PM on 5.05.2006 and he got recovered one bottle of safi and two chemical bottle used for hair colour and disclosed that had had mixed the hair colour in Safi and administered it the deceased. She also stated that recovered articles were seized by the police.

15. She further stated that she did not held Jai Shree in pursuing the rape case of Jai Shreeas she had no knowledge about that case. She denied that she did not help Jai Shree as her relations with Jai Shree were strained. She also stated that her husband was a witness in the said rape case. She denied that her husband was not the witness in the rape case. She further stated that in fact the accused got the name of her husband deleted from the list of witnesses of the rape case by bribing police. She further stated that she could not tell the date when she visited the house of Jai Shree but she used to visit the house of Jai Shree whenever she came for medical checkup to Delhi. She further testified that she could not tell that whether Jai Shree had started the beauty parlour in the 2001or 2002 but she was running beauty parlour at C­140 Motia Khan, Pahar Gann, New Delhi. She denied that accused had invested money in the beauty parlour was started by Jai Shree. She stated that in fact her mother in law had invested the money for FIR No. : 213/06 6 starting the beauty parlour. She also stated that accused was allowed to live with Jai Shree as he assured to help her in the rape case. She also stated that after her mother in law was expelled from the house by accused she came to reside with them at Bahadurgarh. She denied that her mother in law had left the house on her own will.

16. PW 2 stated that she had not stated before the police that accused used to extort money from Jai Shree and her mother in law. She denied that she had not stated the said fact as accused used to spend money on Jai Shree and her mother in law. She denied that she and her husband wanted to usurp house no. 140 C Motia Khan that is why they sold their house at Bahadur Garh afterh the death of Jai Shree and they have falsely implicated the accused in this case. She further stated that she could not tell whether accused remained in the police custody from 28.04.2006 to 6.05.2006. She also stated that on 4.05.2006 when accused had come to her at house no. 140 C Motia Khan for making confession he was alone. She also stated that on 6.05.2006 accused was brought to house no. 140 C Motia Khan by the police. She denied that accused in police custody on 4.05.2006 or he had not come to her on 4.05.2006. . She also stated that accused was arrested on 6.05.2006. She denied that he she made her statement u/s 164 Cr.P.C. on being tutored by the police.

17. PW 3 Smt. Sunita the neighbour of deceased who deposed that she knew Jai Shree being her neighbour and also knew accused through Jai Shree. She also stated that she had seen the accused coming to the house of deceased since last 3­ 4 years prior to the incident. She also stated that Jai Shree never told her anything about the accused and Jai Shree used to call accused Mausa.

18. She further stated that on 28.04.2006 at about 4.00 AM accused had come to her house and told her that Jai Shree was not opening the door despite his FIR No. : 213/06 7 ringing the bell since long. She further stated that she told the accused to open the door with duplicate key but after sometime she again saw the accused sitting in the staircase and asked him as to why he was sitting there and whether Jai Shree had not opened the door. Whereupon accused told her that door was not locked but it was bolted from inside and he was feeling very uncomfortable. She further deposed that she helped accused in opening the door by putting her finger in the door and opening the bolt as she knew that accused as well as the other girls working in the beauty parlour of the deceased used to open the door in that way. After opening the door she and accused went inside the room and she saw from the distance that the deceased was lying on the bed, hence she left as she thought that Jai Shree was sleeping but after 5 minutes accused came to her and told her that Jai Shree had expired. Thereafter she called one Jeetu Ji who was residing in house no. 141 and informed him about what accused was saying and they all went inside the room of Jai Shree, Jeetu Ji checked the pulse of Jai Shree and found that it was not responding then with the help of another neighbour they called one Dr. Kochhar and in the meantime other neighbours also reached there. Dr. Kochhar came to the spot and informed them Jai Shree Sharma had expired 3­4 hours back.

19. PW 3 further deposed that police came and made inquiries from her. She further stated that about 15 days prior to the incident Jai Shree had given her Rs. 30,200/­ of her Chit Fund committee for paying installment of the loan of her house and told her if it remained with her it would be spent and she would be unable to pay the installment of the house. She also stated that out of the amount she had given Rs. 5,000/­ for the cremation of Jai Shree .

20. The request of Ld. Addl. PP to cross examine PW 3 allowed as she was resliing from her previous statement. In her cross examination by Ld. Addl. PP FIR No. : 213/06 8 she stated that in her statement to the police she stated that Jai Shree was residing with accused her mausa, whom she correctly identified and for the last 8­9 months Jai Shree Sharma and accused were having certain differences as accused was overspending. She also stated that Jai Shree had three Chit Fund Committees out of which two had already been got released by accused and Jai Shree had told her to inform organizer of Chit Fund not to release the third committee to accused. She also stated that third committed was got released to Jai Shree and she received Rs. 30.,200/­ which she had left with her for payment of installment of loan of her house. She further stated that she did not notice if there was a quilt and pillow was lying on the bed of Jai Shree.

21. In her cross examination by Ld. Counsel for accused PW 3 stated that she do not remember when Jai Shree had started her beauty parlour and she did not remember the mobile number of Jai Shree. She further stated that Jai Shree and Ramesh Sabbarwal never had any altercation in her presence. She further stated that she had not seen the accused near the place of occurrence i.e. Flat No. 140 C Motia Khan Pahar Ganj, 2­3 hours prior to 4.00 AM on 28.04.2006. She denied that accused had called the doctor, however she was confronted with her statement under section 161 Cr.P.C. Ex. PW 3/DA portion A to A where in it was so recorded. She deposed that she had told the police that accused told her that Jai Shree had expired. She was confronted with her statement Ex. PW 3/DA wherein it was so recorded that Jai Shree had become cold. She also denied that she had not mentioned about Jeetu Ji in her statement to the police. She was again confronted with the statement Ex. PW 3/DA wherein it was recorded that she had informed her neighbours.

22. She further stated that she did not know when the accused was arrested but he had accompanied the police from the spot. She also stated that on FIR No. : 213/06 9 30.04.2006 accused was brought to the place of occurrence by the police. She also deposed that she did not know whether accused remained in the police custody w.e.f 28.04.2006. She further testified that after 28.04.2006 she did not see the accused at the place of occurrence in the police custody or alone.

23. She further testified that accused helped Jai Shree in improving the work of beauty parlour and earning of parlour. She also stated that she she had not seen any other relative of deceased helping her in times of need. She also stated that mother of Jai Shree was living withher but she had also left after some time. She further stated that she had seen her brother and bhabhi visiting Jai Shree only once. She also denied that Jai Shjree had never told her about the 2 committees having been got release by the accused or that Jai Shree wanted third committee to be released to her. She also stated that the balance amount of Rs. 30,200/­ was offered by her to the mother of deceased but she asked her to keep the same for the payment of installment of the house.

24. PW 30 IO ACP Mohan Singh further stated that on 05.05.2006 the complainant Girish Sharma brother of deceased came to the PS and get his his statement recorded by SI Maruit Rao on which FIR was registered on the same day. Thereafter investigation was taken by him and he along with SI Maruti Rao and SI I. K. Jha and other police staff reached the spot where the complainant met him and at his instance site plan was prepared which was proved as Ex. PW 30/B. He also stated that he examined neighbour of the deceased Sunita and Dr. J. S. Kochhar from the same vicinity . He also stated that he again called the photographer to take the photographs of the place of incident.

25. PW 5 Ct. Mahesh Kumar stated that on 5.05.2006 he was posted in crime team central district as a photographer and he accompanied the SHO PS Pahar Ganj to the flat no. 140 C Motia Khan where on the instruction of the SHO he FIR No. : 213/06 10 took 6 photographs of the gate of the house from inside and outside. He also stated that positives of the same were Ex. PW 5/1 to Ex. PW 5/6 and the negatives of the same are Ex. PW 5/7 to PW 5/12. In his cross examination he stated that when he had visited the above address the then SHO, Additional SHO PS Pahar Ganj, SI Maruti Rao as well as SI I. K. Jha and other staff were present.

26. PW 9 Manish Sachdeva deposed that the was running a shop at Shivaji Market, Tagore Garden in the name of Sachdeva Motors. He further stated that accused, whom he correctly identified, had abused him while he was going to Jhandewalan Mandir. He further stated that on 26.11.2005 the accused got a car bearing no. DL 9C G 0920 financed thereafter accused requested him to sell the car as he was unable to pay the installment and the same was sold for Rs. 1,11,000/­ to one Sandeep Kumar on 23.03.2006. He also stated that car was earlier in the name of Jai Shree. He further stated that delivery receipt of car was Ex. PW 9/A and the photocopy of the RC of the car was Ex. PW 9/B. He further stated that he handed over the photocopy of delivery receipt to the police which was seized vide seizure memo Ex. PW 9/C which bears his signatures. In his cross examination he stated that accused had paid two installment of the car. He further stated that he did not have any document to show that vehicle was in the name of Jai Shree and further staed that asper record vehicle was in the name of accused.

27. PW 10 Shyam stated that he was working in Chawla Transport as a labourer and knew the accused, whom he correctly identified. He further stated that accused used to play cards at Sadar Bazar and on 27.04.2006 he had seen accused at Church wali gali playing cards with other persons till 5­6.00 PM.

28. PW11 Seema stated that on 27.04.2006 he was working at Gayatri Beauty Parlour at C­140 Motia Khan and she had been employed at the said beauty FIR No. : 213/06 11 parlour for the last 10­11 months prior to the 27.04.2006 she further stated that on 27.04.2006 when she left the beauty parlour at 7.30PM one Khanna aunty who was residing in front of the beauty parlour and accused, whom she correctly identified, were present in the beauty parlour with deceased. She further stated that on the next day she came to know that Jai Shree had expired. In her cross examination she stated that mother of deceased never visited her in her presence neither Girish Sharma brother of deceased visited the beauty parlour in her presence. She further stated that whenever Jai Shree fell ill accused used to look after her.

29. PW12 Surdeep Singh deposed that he knew the accused being his neighbour at Subhash Nagar for the last 7­10 years and also testified that accused was residing at house no. 12/3 Subhash Nagar and later shifted to Block No. 17 Subhash Nagar. He also stated that Jai Shree was the relative of the wife of accused and he had met Jai Shree once or twice. He further stated that wife of accused informed him about the death of Jai Shree. He also stated that he met the accused after the death of Jai Shree in PS but he did not remember whether his statement was recorded by police.

30. The request of Addl. PP to cross examine him was allowed as he was resiling from his previous statement. In his cross examination by Ld. Addl. PP he denied that his statement was recorded by the police. He also denied that he had stated before the police that accused was residing at C­140 Motia Khan, Pahar Ganj with Jai Shree for helping her in the rape case against her maternal uncle . He was confronted with the statement mark 11/A wherein it was so recorded. He further denied that accused took his scooter DL 8SN 1519 as he had borrowed Rs. 2,000/­ from the accused. He was confronted with the statement mark 11/A wherein it was so recorded. He further denied that that he stated FIR No. : 213/06 12 before the police that on the intervening night of 27/28.04.2006 at about 3.00PM accused came to his house on his scooter and on inquiry from accused as to why he had come at odd hours and accused told him regarding the death of Jai Shree. He was confronted with the statement Ex. 11/A wherein it was so recorded.

31. In his cross examination by Ld. Counsel for accused he stated that wife of accused informed him about the death of Jai Shree . He further stated that he met accused in the PS on 28.04.2006 thereafter he again met him on 29.04.2006, 30.04.2006 and 1.05.2006 to 6.05.2006 in the PS. He further stated that he did not meet the accused anywhere except in the PS.

32. PW 13 Niraj Gill deposed that deceased was her friend for the last 18­20 years and Jai Shree was residing with her mama. She further stated that in the year 1995 Jai Shree had shifted to DDA Flat Motia Khan. She also stated that Jai Shree used to talk to her on mobile phone and also used to visit her house but she did not remember the mobile number of deceased. She further stated that she knew the accused, whom she identified in court and Jai Shree used to call him Mausa and he was living with Jai Shree. She also stated that Jai Shree used to visit at her house with the accused.

33. The request of Addl. PP to put the leading question was allowed. In his cross examination by Ld. Addl. PP she sated that mobile number of Jai Shree was 9811636111. In her cross examination on behalf of the accused she stated that accused used to help the deceased and he used to look after the deceased whenever she fell ill. She also stated that mother and brother of deceased never visited her since accused started living with her. She further testified that mother and brother of Jai Shree started living in flat no. 140­C Motia Khan after the death of Jai Shree. She also stated that she had never witnessed any dispute between Jai Shree and accused. She also stated that on 28.04.2006 she went to the FIR No. : 213/06 13 PS but did not see the accused but on 29.04.2006 she saw the accused in the PS.

34. PW 15 Ct. Krishan Singh stated that on 5.05.2006 he took the FIR to PS Pahar Ganj in sealed envelope and delivered the same to senior police officials and Ilaka magistrate.

35. PW 16. Ct. Mahender stated that on 2.05.2006 he was posted at PS Pahar Ganj when IO of the case took him to LHMC mortuary from where exhibits were seized by the the IO vide memo Ex. PW 16/A which bears his signatures.

36. PW 17. Dr. Devinder Kumar deposed that on 19.04.2006 he was posted as a Junior Resident in Department of Forensic Medicine, Lady Harding Medical college and he conducted the postmortem of the Jai Shree along with Dr. Shrabana Kumar Naik. In their opinion death could have been resulted from ingestion of some toxic substance. He proved the postmortem report Ex. PW 17/A. He also stated that he gave the second opinion about the cause of death which is Ex. PW 17/B but the same was given without chemical analysis of the viscera. He further stated that on 18.05.2007 IO again moved an application for obtaining final opinion about the cause of death and also produced the FSL result, after perusal of the FSL report he given his final opinion that the possibility of ingestion of toxic substance or intoxicating agents could not be ruled out. Again the possibility of death due to asphyxia due to alleged manner of compression of face and chest could not be denied as opined earlier. He also stated that exact opinion could not be given because of the long time gap between the viscera preservation and chemical analysis of preserved viscera by FSL. He proved the final report Ex. PW 17/C.

37. In his cross examination he stated that time of conducting the postmortem was 3.10 PM on 28.04.2006. He also stated that body was stored in the cold storage prior to the conduct of the autopsy so exact time of death cannot be given FIR No. : 213/06 14 but it could be between 12 to 18 hours. He also stated that brother of the deceased identified the dead body. He further stated that at the time of conducting of postmortem no chemical analysis was done however in the routine no chemical analysis were conducted. He also stated that viscera was preserved in his presence and sealed and before sealing the viscera it was intact and it was not tampered with. He also stated that he preserved the clothes of the deceased. He also stated that the opinion given on 5.05.2006 in Ex. PW 17/B was not given in the postmortem report. He also stated that opinion was given by him when the police asked him by moving an application.

38. He further stated that at the time of when gave the second opinion no documents was produced by police. He also stated that the third opinion Ex. PW 17/C was given by him at request of police. He further stated that at the time of giving the third opinion police produces the FSL result and except this police did not produce any other document or article. He also stated that he himself had not chemically analyzed anything while giving final opinion Ex. PW 17/C. He also stated that in the FSL result it is mentioned that Metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers and insecticides could not be detected. He denied that he given his opinion under the pressure of the police and he had given wrong opinion at the instance of the police. He also stated that opinion was given by them on their own observations and not entirely on chemical analysis as the chemical analysis was generally conducted very late. He further stated that chemical analysis report has its own value and it cannot be discarded altogether.

39. PW 18 Girsih Sharma is the complainant who stated that on 28.04.2006 he was living at house no. 1476/2 New Patel Park, Line Par, Bahadurgarh, Haryana and on that day at about 7.00­7.15. AM he received telephonic call from FIR No. : 213/06 15 his cousin Vidya informing that Jyoti informed him that his sister Jai Shree had expired whereupon they at 140­C LIG Flats Motia Khan and saw Jai Shree lying on the bed dead and there was urine and excreta lying on the bed He further stated that his sister Jyoti and her husband Ritesh Kumar , Bindu 'Mausi', Rekha 'Mausi' parents in law of Jyoti and police were present. He also stated that neighbours had collected. He also deposed that during the relevant period deceased was living with the accused since last two years. He correctly identified the accused.

40. He further stated that police recorded his statement ex. PW 18/A thereafter police officials took the dead body of Jai Shree to Mortuary where he identified the dead body of Jai Shree and police recorded his statement regarding the identification which is Ex. PW 18/B. He also stated that police seized the gold article of deceased i.e. one set of ear tops vide seizure memo Ex. PW 18/C. He also deposed that police seizsed beetle leaves and porridge vide seizure memo Ex. PW 18/D and police had also seized a bed sheet pillow and one Jaipuri quilt of creme colour vide seizure memo Ex. PW 18/E both the memos bear his signature. He also stated that Jai Shree was running a beauty parlour by the name of Gayati Beauty Parlour which being run by Jai Shree and her helper Alka . He also stated that Jai Shree wanted to terminate Alka but could not do so as accused did not permit her to do so. He also stated that accused sold his house and was living with his family in a flat at Motia Khan on rent. He further stated that accused had also left his family but he did not know where he started living thereafter. He further deposed that he inquired about the accused but did not find him at the spot and was told that he was in the house of neighbour. He further stated that when accused came to the spot he inquired him about the cause of death of Jai Shree whereupon accused told him that he had come to the flat at FIR No. : 213/06 16 about 7.30 PM and had given something to eat to Jai Shree and had then left. Thereafter he returned to the flat at about 1.00 am but Jai Shree did not open the door . He further stated that accused told him that then he had gone to Gurudwara Bangla Sahib and returned at about 4.00 AM at that time also Jai Shree did not open the door through he rang the door bell and made call. Accused further told that he brought Mrs. Khanna living in the neighborhood but still Jai Shree did not open the door and Mrs. Khanna opened the door by inserting her hand in the cavity. He further stated that accused also told him that Mrs. Khanna entered the room and told him that Jai Shree was sleeping and left. He further stated that accused told him that he found Jai Shree dead and accused called Dr. Kochar who declared Jai Shree dead.

41. He further stated that accused had informed about the incident to the family of Jyoti his sister but did not inform him. He also stated that accused had no source of income was dependent on Jai Shree with whom he was working as driver, body guard etc. and also used to drink and play cards. He further stated that family of accused was also dependent on the earnings of the Beauty parlour.

42. He also deposed that on inquiry he came to know that on the night of incident the accused had not gone to Gurdwara Bangla Sahib but was playing cards at Church Road. He also stated that on inquiry from Bindu 'Mausi' he came to know that accused had visited her at 3.30 AM and further stated that accused had called Mrs. Khanna to the spot and got the door opened through her so that no one would suspect him.

43. He further stated that on 04.05.2006 his wife Rajbala told him that accused had visited her in the evening and confessed of having killed Jai Shree in anger and also prayed before his wife to save him as he had committed a mistake. He further stated that Jai Shree had told him that accused used to spent a lot of FIR No. : 213/06 17 earnings of the beauty parlour. He also stated that two years prior to the incident his mother used to live with Jai Shree in her flat but accused forced her to leave the flat. He further stated that Jai Shree used to keep her earnings with Mrs. Khanna to save it from the accused.

44. He further stated that deceased had got registered a rape case against her maternal uncle Praveen. He further stated that accused entered their life on the pretext that he would save Jai Shree and others from the hands of Praveen as he was son­in­law of family of Praveen. He further stated that accused on the pretext of helping Jai Shree in the rape case took her under his influence.

45. He further stated that pm 5.05.2006 his statement was recorded which is Ex. PW 18/F and case was registered. Thereafter accused was arrested on 06.05.2006 at around 2.30 PM and he signed the arrest memo of the accused which is Ex.PW 18/G. He further deposed that at the instance of accused IO recovered one bottle of chemical "Safi" which was seized vide seizure memo Ex. PW 18/H and one plastic bottle of "Wella Colour Touch" which was seized vide seizure memo Ex. PW 18/I. He further stated that IO also seized a telephone make of Taka Indicom from the house no. 140­C LIG Flats vide seizure memo Ex. PW 18/J. He also deposed that accused produced one rope which was used by him to shut the main gate and he had demonstrated the function of the rope. The length of the rope was 4 feet and it was seized vide seizure memo Ex. PW 18/K. He further stated that accused also produced a glass (kaanch glass) which was used for giving water, milk and Safi to Jai Shree which was seized vide seizure memo Ex. PW 18/L. He further stated that all the memos bears his signatures. He further testified that IO had recorded his supplementary statement. He correctly identified the accused and case properties i.e. Rajai P 1, Telephone P 2, Safi bottle P 3, Glass P 4 , bottle of "Wella Colour Touch" P 5, beetle leaves P 6, FIR No. : 213/06 18 porridge P7, one plastic bottle of Velloson P 8, ear tops P 9, rope P 10, pink colour bed sheet P 11, pillow P 12.

46. In his cross examination he stated that he was working as a labourer and could not tell his earnings thereafter he stated that his earning were Rs. 3000­ 4000/­ per month. He also stated that he had three children and he never calculated the expenses per month. He further testified that he had sold his house at Bahadurgarh after one month prior to the date of incident and he had not purchased any other house from the sale proceeds. He further stated that after the incident he started residing at house no. C­140 Motia Khan. He also stated that he knew that after the death of Jai Shree they would be the owner of house no. C­ 140 Motia Khan. He denied that he wanted the property owned by Jai Shree that was why he did not purchase any other house after sale of his house at Bahadur Garh.

47. He further stated that on 28.04.2006 he was not employed . He further stated that he was preparing for go back his native village. He further stated that prior to 28.04.2006 he used to visit Jai Shree once or twice. He also stated that Jai Shree did not fall ill regularly but fell ill occasionally. He also stated that he did not know if Jai Shree fell iss in the year 2005 or was admitted in the Jeevan hospital. He also stated that his wife used to visit Jai Shree on receiving information of her illness but he did not remember the date, month and year of the visit. He also stated that during the illness of Jai Shree his wife and mother used to take care of her. He further stated that his mother never told him that Jai Shree was admitted in the hospital in the year 2005.

48. He further stated that Jai Shree had got the case registered against her maternal uncle for the offence u/s 376 IPC vide FIR no. 596/01 at PS Pahar Ganj and he was cited him as a witness. He denied that he was not the witness in the FIR No. : 213/06 19 case. He further stated that accused got his name struck off from the list of witnesses. He also stated hat his maternal uncle, mausi and other member of maternal grand father were accused in that case. He also stated that his relation and Jai Shree's relation with their maternal grand fathers family become strained. He denied that his mother used to visit the accused persons regularly.

49. He also stated that he had not told the police that Jai Shree wanted to terminate the services of Alka helper but accused did not permit her to do so. He further testified when he reached the house of Jai Shree accused was sitting in the neighbourhood with police and he did not know whether accused was taken to PS from the spot itself but accused was not present during cremation of Jai Shree.

50. He further stated that on 7.05.2006 he visited the PS and gave the information about the car bearing no. 0920 which was owned by Jai Sheee which had been sold by the accused. He further stated that he did not have any document to show that car was owned by Jai Shree. He also stated that all the documents of the case were misappropriated by the accused but he had not related before the police that the documents were misappropriated by the accused neither he had told the police that car was sold by the accused. He also stated that he did not remember whether he had told the police that accused was working as a driver of the Jai Shree. He further stated that he had told the police that accused was working as a body guard of Jai Shree but same was not mentioned in his statement. He further stated that accused used to play cards, drink and smoke but he was confronted with his statement recorded by police wherein it was not so recorded. He also stated that he had told the police that family of accused was dependent upon the earning of beauty parlour, he was again confronted with the statement Ex. PW 18/F wherein it was not so recorded. He further testified that he told the police that on the night of incident accused had not gone to FIR No. : 213/06 20 Gurdudwara Bangla Sahib but was playing cards at Church road. He further deposed that Bindu Mausi informed him that accused visited her house at 3.00 AM on 28.04.2006 itself. He denied that Bindu Mausi had not told him anything. He also stated that he had stated before the police that accused had called Mrs. Khanna to open the door so that no one would suspect. He was confronted with the statement Ex. PW 1/F wherein the reason of calling Mrs. Khanna had not been given. In his cross examination by accused he further stated that his wife Rajbala told him at night that accused visited her and told her that he had committed a mistake killing Jai Shree and requested her to save him. Thereafter he visited the PS on the same night. He further stated that his statement was recorded on 05.05.2006 at around mid night. He denied that his wife Rajbala had not told him anything and he had given the false statement before the police.

51. He further stated that Jai Shree told him on many occasion that accused used to spend lot of earnings of beauty parlour. He further stated that he had not filed any complaint against the accused. He denied that accused did not force his mother to leave the house of Jai Shree. He further stated that Mrs. Khanna and some other ladies told him that Jai Shree used to keep her earnings with Mrs. Khanna.

52. He further stated that Jai Shree purchased the flat no. C­140 LIG Flat Motia Khan and Praveen was the registered owner of the said house and consideration was paid by all of them to Praveen. He denied that Praveen Sharma had purchased house no. 140­C LIG Flats but power of attorney was got executed in favour of Jai Shree and late on dispute arose between Jai Shree and Praveen and Jai Shree got the rape case registered against Praveen Sharma. He denied that Praveen and Jai Shree were living together since 17.08 till 2001 when rape case was got registered against Praveen.

FIR No. : 213/06 21

53. PW 18 further stated that they had ancestral property in Monga in the name of the grand father which was sold under the pressure of accused in 2004 for Rs. 9,80,000­ and sale amount was divided among all of them by the accused. He denied that dispute arose over the distribution of consideration amount. He also stated that since he was eldest he wanted something extra even one rupee to be paid to him as token of respect. He denied that a quarrel took place between him and Jai Shree and Jai Shree had lodged complaint with police at Monga. He also denied that property at Monga was sold by him because he had lost lot of money in gambling and was a liquor addict.

54. He further stated that relations between Jai Shree and Praveen Sharma become inimical since Jai Shree got FIR lodged against Praveen Sharma. He further stated that documents pertaining to flat no. C­140 Motia Khan Pahar Ganj were initially executed in the name of Praveen Sharma but subsequently the flat was transferred in the name of Jai Shree. He also stated that he could not tell the the nature of the documents executed in this regard. He further stated that there was slight bitterness between Praveen Sharma and Jai Shree on the issue of transfer of flat. He further stated that on 04.05.2006 there was a telephone connection in the house no. 140­C Motia Khan but he did not make telephone call to the police when his wife informed him on 4.05.2006 at 10­11.00 PM that accused had confessed about the killing of Jai Shree. He further stated that he did not do so as he did not wanted to touch the telephone installed in the house where incident took place. He also stated that he had mobile at that relevant time but went to PS to inform the police about the said fact.

55. He further stated that he did not know whether one set of keys of flat no. C­140 Motia Khan, Pahar Ganj remained with Mrs. Khanna who was the neighbour of Jai Shree. He also stated that he did not know whether Jai Shree FIR No. : 213/06 22 tried to commit suicide 2­3 times while residing with maternal uncle Praveen Sharma. He also stated that his Jai Shree had cut her left hand veins while residing with Praveen Sharma when he had committed rape upon her in the house of their nana nani at Hanuman Mandir Cannuaght Place.

56. He denied that accused was a property dealer by profession. He further stated that he did not ask his wife as to why sh had not informed the police about the visit of accused on 4.05.2006 where accused confessed of the killing of Jai in anger.

57. He further stated that income of the beauty parlour was about 1.5 lacks per month but he did not have any documentary proof of the same. He further stated that his wife and mother are running the beauty parlour but income is meager as beauty parlour at the death of Jai Shree is being run where murder had been committed. He further stated that now the income of the beauty parlour is 3,000/­ p.m.

58. He denied that police did not collect the pan leaves and daliya from the fridge neither the bed sheet, pillow and one Jaipuri rajai. He further stated that police did not arrest the accused in his presence. He further stated that he saw the accused in the PS but he did not know whether it was after the arrest of accused. He also stated that he did not remember whether he had signed the arrest memo of the accused.

59. He denied that police did not seize the Safi bottle from the spot but he did not remember the date of recovery of the bottle but it may be on 6.05.2006. He also stated that police seized telephone make of Tata Indicom on 6.05.2006 and denied that it was not seized by the police. He further stated that he could not say if police had seized telephone set of Tata Indicom on 28.04.2006. He denied that accused did not get one rope recovered. He also stated that he had got recorded in FIR No. : 213/06 23 his statement to the police that accused demonstrated the use of rope to shut the door but he was confronted with the statement Ex. PW 18/A, 18/B and 18/F wherein it was not so recorded. He further stated that accused did not produce the kaanch glass which was used to giving water, milk and Safi to Jai Shree. He denied that police did not seize the Wella Colour Touch bottle, two beetle leaves and one set of ear tops at the instance of accused.

60. He further stated that he did not remember whether on 1.05.2006 whe he gone to PS accused was present. He also stated that he did not remember if accused was arrested on 28.04.2006. He also denied that all the proceedings and documents were prepared in the PS. He stated that some documents were prepared at the spot and some were prepared in the hospital whereas some papers such as FIR, arrest memo, paper pertaining to car were prepared in the PS. He further stated that all the documents were prepared by the police in his presence. He denied that being the relative of the deceased and interested witness he was deposing falsely. He further denied that nothing had been recovered at the instance of accused. He denied that due to dispute between the deceased and her uncle and accused being known person to deceased he was falsely implicated.

61. PW 19 Ct. Sonu Kaushik stated that on 18.06.2006 he was posted in the crime branch and on the requisition of IO/Inspector Ashwani Kumar Jaiswal he visited the place of occurrence at C­140 Motia Khan Pahar Ganj , New Delhi where he prepared the rough notes and took the measurements on the pointing out of Girish Sharma and thereafter he prepared the scaled site plan which is EX. PW 19/A. In his cross examination he stated that he reached the spot at about 10.30 AM , besides Girish Sharma he met one lady at the spot whose name he did not know. He also stated that he remained at the spot for about 1 hour and he prepared the rough notes at the spot. He further stated that he did not state before FIR No. : 213/06 24 the police that rough notes were destroyed after the preparation of the site plan. He denied that he did not visit the spot and did not prepare the rough notes and no site plan was prepared on the basis of rough notes. He also denied that he prepared the scaled site plan while sitting in the office.

62. PW 20 Dr. Shrabana Kumar Naik deposed that on 28.04.2006 on the requisition of police he along with Dr. Devender Kumar conducted postmortem examination over the body of Jaishree Sharma, aged 42 years female during postmortem examination he had detected following findings:

On External examinations:

Multiple old heeled linear scar marks present in an area measuring 10 cm X 5 cm in the mid part of flexor aspect of left fore arm. No other external injury of any type could be detected anywhere on was body of the deceased including facial and neck regions. Face was congested, conjunctiva were congested mucosa discharge coming out through nostrils and faecal discharge soiling the inner aspect of both the sides of thighs.

Whereas on Internal examination:

Stomach was found intact, mucosa congested with sub mucosal patchy hemorrhage towards pyloric regions and contained about 300 gms of partly digested identifiable rice particles emitting non specific odour. Both lungs are congested and oedematous. All other internal organs were found normal. In his Opinion:

Death could have been resulted from ingestion of some toxic substance. Viscera has been preserved for chemical analysis for diagnosis and confirmations of nature of toxic substance. Time since death was about within 12 to 8 hours prior to the time of conducting postmortem examinations. Detailed postmortem was prepared by Dr. Devender. Same is Ex. PW 17/A which bears his signatures FIR No. : 213/06 25 at point B. The said postmortem report was prepared in his presence.

63. He further stated that after receiving the chemical report of viscera of deceased Jaishree he opined that possibility of injection of toxic substance of intoxicating agents could not be ruled out. He also stated that possibility and death due to asphyxia due to compression of face and chest also could not be denied as opined vide Ex. PW 17/C. In his cross examination he stated that viscera was preserved and sealed in his presence but he did not remember the person who preserved and sealed the viscera. He also stated that it was not tampered with. He also stated that no document or article was produced by IO before him on 05.05.2006 when he gave his opinion Ex. PW 17/B. He also stated that final opinion Ex. PW 17/C which was based upon the opinion given in the postmortem report Ex. PW 17/A. He also stated that he had not conducted any chemical analysis before giving opinion Ex. PW 17/A to Ex. PW 17/C. He further stated that at the time of giving the final opinion Ex. PW 17/C he perused the case file, postmortem report including inquest papers, subsequent opinion and FSL report dated 04.05.2007 but same was not mentioned in Ex. PW 17/C. He also stated that in the FSL result it has been mentioned that metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquillizers and insecticides could not be detected in Ex. 1, 2, 3A, 3B, 3C, 3D, 4 and 7.

64. PW 21, Ct. Manoj Kumar deposed that on 11.05.2006 at the instructions of the IO he collected 9 pullandas and one sample seal, two FSL forms and two road certificates i.e. 23/21 and 24/21 from the MHCM Pahar Ganj and took the same in FSL Rohini in Gypsy no. DL1CJ 3856 driven by Ct. Sunil and in the presence of Ct. Maruti Rao said articles were deposited in the office of FSL Rohini and he handed over the receipt of deposit to the MHCM. He also stated FIR No. : 213/06 26 that till the case property remained in his possession same was not tempered with. In his cross examination he denied that he did not take the case property to FSL Rohini. He denied that case property was tempered with.

65. PW 22, Ct. Ramphal Gaur deposed that on the intervening night of 27­ 28.04.2006 he was posted on emergency duty at PS Pahar Ganj from 8:00 AM to 8:00 PM. He further stated that SI Maruti Rao received DD No. 7 A at 7:55 AM. He along with Maruti Rao reached the spot at H. No. 140 C, LIG Flats, Motia Khan, Pahar Ganj, Delhi where they found one lady namely Jaishree lying straightway on the bed. He stated that her face was towards the ceiling fan. He also stated that cream colour Jaipuri Rajai, pink colour pillow, pink colour bed sheet were lying on the bed and there was yellow colour stained on the center of the bed sheet. He also stated that IO called the crime team. He stated that toilet was found on the bed sheet of deceased. He further stated that IO inquired from the public persons and IO also recorded their statements. He further stated that IO inspected the spot and went in the kitchen and found cooked porridge in the steel bowl which was seized in a white pullanda and IO also seized beetle leaves kept in the fridge Ex. PW 18/D. He stated in the meantime SHO and other senior officers also reached the spot and on instructions of the IO he took the dead body to Lady Harding Hospital. He also stated that SI Maruti Rao also reached at LHMC where he obtained the MLC of deceased and the dead body was sent to mortuary. He further testified that in the mortuary attendant Ramesh handed over one set of ear tops of golden colour worn by the deceased to the IO. IO sealed the same vide seizure memo Ex. PW 18/C. He further stated that after the postmortem the dead body was handed over to the relatives of deceased. He further testified that he had also joined the investigation later on and accompanied the IO to the spot where IO prepared the site plan. FIR No. : 213/06 27

66. In his cross examination he stated whether he visited the spot on 06.05.2006 but after registration of the case he visited the house in search of accused. He also stated that he could not tell whether accused was in the PS from 28.04.2006 to 06.05.2006.

67. PW 23, HC Narender Kumar deposted that on 28.04.2006 SI Maruti Rao deposited six sealed pullandas sealed with the seal of MR on 28.04.2006 and on 02.05.2006 SI Maruti Rao deposited 3 sealed pullandas duly sealed with the seal of LHMC Hospital and one sample seal.

68. He further stated that Inspector Mohan Singh deposited five pullandas duly sealed with the seal of MS and on 06.05.2006 and on 07.05.2006 Inspector Mohan Singh deposited one pullanda duly sealed with the seal of MS. He also stated that entries were made in this regard in register no. 19. He further stated that on 11.05.2006 all the pullandas were sent to FSL Rohini through Ct. Manoj Kumar vide RC No. 23/21 and 24/21 and entries was made in register no. 19 were Ex. 23/A, Ex. 23/B and Ex. 23/C. He also stated that till the pullandas remained in his possession they were not tempered with.

69. PW 24 Dr. Yashoda Rani Forensic Medicine Department stated that on 5.05.2006 investigating officer sought the opinion regarding the cause of death of Jai Shree from the doctor who conducted the postmortem of the dead body of deceased. She further stated that the concerned doctor Devender Kumar Atal and Sabarna Ayyer prepared the opinion Ex. PW 17/B and she was being the head of the department forwarded opinion given in Ex. PW 17/B and her signature bears at point X. In her cross examination she stated that she had no personal knowledge about the postmortem of the deceased nor she had prepared the report. She further stated that she read over the opinion before forwarding the same.

70. PW 25 Anuj Bhatia, Nodal officer Vodafone Mobile services limited FIR No. : 213/06 28 stated that he was working as a nodal office in Vodafone Mobile Services Ltd. since March 2009 and stated that the call details ex. PW 25/A of mobile phone no. 9811636111 from the period 1.04.2006 to 10.07.2006 were given to the police on demand and were correct as per their record. He further stated that official record of the said call details was not available in the company since it was more than one year old as per the Department of Tele Communication Union of India guidelines company was support to provide calls details for past one year, the copy of the guidelines was Mark A. He further stated that as per the certified record, the said mobile phone was in the name of Jai Shree Sharma r/o 140­C, LIG Flats, Motia Khan having landline no.23541919. He also state that Jai Shree had furnished I.D. Proof i.e., her election I.Card and her photograph with the application. He further stated that customer agreement form in this regard was Ex. PW25/B and photograph of applicant was Ex.PW25/C and election I.Card was Ex.PW 25/D. He also stated that as per record Ex. PW 25/A call was made on 28.04.2006 at about 3.18 AM from Maya Puri Press Colony from the mobile no. 9811636111 to 9810930430.

71. In his cross examination he stated that he was working as Nodal Officer from 4th April 2009. He further stated that he did not remember the date when department had provided the record of said telephone number to the I.O. He further stated that generally, they destroy record after one year. He further stated that whenever any record is summoned by Hon'ble Court or police, it is preserved as per the guidelines of Department of Telecommunication. He further stated that user gets routed from the nearest tower location for making or receiving a call.

72. PW 26 SI I. K. Jha deposed that on 6.05.2006 he was posted at PS Pahar Ganj andhe along with SI Maruti Rao and Ct. Ramphal and Ct. Bharat joined the FIR No. : 213/06 29 investigation with Inspector M. S. Dabbas and reached the mortuary of Lady Harding Medical college in a government vehicle no. DL 1C J 3856. He further stated that IO obtained subsequent opinion regarding the death of Jai Shree and from there they went to the house140­C Motia Khan where they came to know that accused had gone to PS thereafter they returned to PS where the met the accused. He further stated that on inquiry by the IO accused stated that he could give everything in writing. He further deposed that accused was interrogated and arrested vide arrest memo Ex. PW 18/G and his personal search was conducted vide memo Ex. PW 26/C, both the memos bears his signatures. He further stated that from the personal search of accused one mobile phone Haier bearing no. 9811636111 was recovered. He further deposed that IO recorded the disclosure statement of accused which is Ex. PW 26/A which also bear his signature. He further stated that thereafter they along with the accused went to the house of accused and on the way IO had asked 4­5 passersby to join the investigation but none agreed. He further stated that they went to the house of accused and from the kitchen accused got recovered one bottle containing Safi, one bottle of Wella Welloxone chemical used for the purpose in beauty parlour which were seized by the IO vide seizure memo Ex. PW 18/H and also bears his signature. He further stated that accused also got recovered another bottle bearing label of Wella Colour Touch containing chemical which was seized by the IO vide seizure memo Ex. PW 18/I bearing the seal of MS. He further stated that accused also got recovered one string from the chhajja which was lying behind the board of Beauty parlour which was sealed and seized vide seizure memo Ex.PW 18/K bearing the seal of MS. He further stated that accused thereafter took them to the bed room of Jai Shree from where he got recovered one phone of Tata Indicom no. 55432728 which was seized and sealed with the seal of MS vide memo Ex. FIR No. : 213/06 30 PW 18/J. He stated that all the memos bears his signatures. He further stated that thereafter accuses was sent for medical examination and from their to lock up .

73. He further stated that on 7.05.2006 he again joined the investigation with the above names members except Ct. Ramphal and at the instance of accused one glass was recovered on which there were initial of lazer INTL 38 inscribed at the bottom which was used by the accused while committing crime, same was sealed and seized vide seizure memo Ex. PW 18/L which also bears his signature.

74. In his cross examination he stated that IO had made departure entry vide DD 9/A at 9.05 AM on 6.05.2006 and they reached the hospital at about 9.20 AM and they remained there for two hours. He further stated that thereafter they went to the place of occurrence at about 11.45­12.00 noon . The neighbour of accused present at the spot. He further stated that IO might have asked their names. He further stated that they remained at the place of occurrence for about 10 minutes and thereafter returned to PS at 12.15/12.30 PM. He further stated that accused met them in the transit room of PS Pahar Ganj where he was alone and waiting form them . He further stated that accused had given written facts of the incident on 5.05.2006 therein considering that he had committed the murder of Jai Shree. He also stated that at the time of arrest of accused complainant and other members of police party were present. He denied that mobile phone was make of Haier no. 9811636111 was not recovered from the accused. He further stated that there is no documentary proof regarding the fact that accused was residing at the place of occurrence. He denied that accused did not make disclosure statement and had been detained illegally from 28.04.2006 and his signature had been obtained on blank papers which were later on filled up. He further stated that after the arrest of accused on 06.05.2006 they reached the place of occurrence at 4.00 PM but they did not make the DD entry regarding the said FIR No. : 213/06 31 fact. He denied that IO did not ask passersby to join investigation. He also stated that they entered the flat no no. 140 C LIG Flats Motia Khan from the main gate which was bolted from outside and nobody was inside the house. He further stated that he did not remember whether Raj Bala was inside the room or not but stated that complainant had accompanied them. He further stated that he did not know whether complainant and his wife were residing in 140­ C Motia Khan LIG Flats Pahar Ganj since 28.04.2006 but after the arrest of the accused they started residing therein. He also stated that he could not state whether place of incident was lying opened from 28.04.2006 to 6.5.2006. He denied that no articles were sealed and were seized at the instance of accused on 06.05.2006. He also denied that IO had not done writing work at the place of incident. He also denied that all the documents were prepared in the PS and all the writing work was done in the PS. He also stated that seal of MS after the use was kept by the IO on 6.05.2006. He further stated that IO verbally called him to join investigation on 7.05.2006 and IO had made departure entry on 7.05.2006. He further stated that on 7.05.2006 main gate of the place of occurrence was opened by Rajbala and neighbours were asked to join investigation but they did not agree and IO did not issue notice to them. He further stated that place of incident was surrounded by many flats and was a populated area. He denied that nothing was recovered at the instance of accused on 7.05.2006. He also stated that he did not remember whether IO kept the seal after use on 7.05.2006 himself or handed it to someone else. He also stated that he did not remember whether the recovered phone were in working condition or not.

75. PW 27 D. Poja deposed that on 28.04.2006 Jai Shree was brought to the hospital by Ct. Ramphal Gaur with alleged history of being found unconscious at home and dead. She further stated that Dr. C. S. Aarthey examined the deceased FIR No. : 213/06 32 the deceased and opined "no external injury rigor mortis positive". She further stated that Dr. C. S. Aarthey had left the services of the hospital and her whereabouts were not known to her but she could identify her signature at point A on MLC Ex. PW 27/A. In her cross examination she stated that she had no personal knowledge about this case.

76. PW 28 Sh. Lokesh Kumar Sharma Ld. ACMM stated that an application was moved before him by Inspector Ashwani Kumar for recording the statement of Raj Bala u/s 164 Cr.P.C. the same is Ex. PW 28/A. IO identified the witness Rajbala. He further stated that he recorded the statement of Raj Bala u/s 164 Cr.P.C. which is Ex. PW 2/A and bears his signature at point 'D' and his signature at point 'C'.

77. PW 29 Ashwani Kumar stated that on 15.05.2006 further investigation of the case was taken over by him. He further stated that on 18.06.2006 he along with SI Maruti Rao and draughtsman went to the place of occurrence at C­140 Motia Khan where they med the complainant and at his instance draughtsman prepared the site plan which is Ex. PW 19/A. He further stated that on 7.07.2006 the statement of Raj Bala was got recorded under section 164 Cr.P.C.. He also stated that on 10.07.2006 he collected the call details of mobile no. 9811636111 and thereafter filed the challan.

78. In his cross examination he stated that he had called the draughtsman first to the PS and thereafter he along with SI Maruit Rao and draftsman reached the spot. They had reached the spot at about 10.15 AM complainant met them at the spot. He further stated that he requested many persons of the locality to join investigation. He denied that he had not gone to the spot with SI Maruti Rao and draftsman. He denied that witness Rajbala was tutored by him. He also stated that call details of mobile no. 9811636111 was got collected through a constable FIR No. : 213/06 33 whose name he did not remember.

79. PW 30 ACP Mohan Singh deposed that on 28.04.2006, he was posted as SHO P.S. Pahar Ganj and he had entrusted DD no.7A Ex. PW 30/A to SI Maruti Rao regarding death of one Jaishree Sharma at Flat no.140­C, LIG Flat, Motia Khan. He further stated that he along with ACP Pahar Ganj visited at the spot. He also stated that SI Maruti Rao conducted the inquest proceedings. Crime team and photographer also reached there. He further stated that as per his direction SI Maruti Rao sent the dead body of deceased Jaishree Sharma to Lady Harding Medical College, Mortuary.

80. He also stated that on 05.05.2006, Girish Sharma brother of deceased came to the P.S and got his statement recorded and on the basis of the statement, FIR was registered on the same day and investigation was taken by him. He further stated that he along with SI Maruti Rao, SI I.K.Jha and other staff reached the spot where, complainant, Girish Sharma met them and at his instance site plan Ex.PW30/B was prepared. He further stated that he examined Ms. Sunita Khanna r/o 142­C neighbour of deceased and one Dr.J.S.Kochar from the same vicinity. He further testified that accused was also present at that time. He correctly identified the accused. He further stated that he again called the photographer for taking photographs of of scene of occurrence. He further stated that accused offered to narrate the incident in writing and he was given plain paper to write. He also stated that thereafter he went to Forensic Department of Lady Harding Medical College and submitted an application for opinion as to cause of death which is Ex. PW 30/C.

81. He further deposed that on 06.05.2006, he along with SI I.K.Jha and SI Maruti Rao went to Forensic Department and collected the opinion report Ex.PW17/B as per the opinion of doctor possibility of death due to alleged FIR No. : 213/06 34 manner of compression of face and chest could not be denied even in the absence of marks of violence and resistance. Thereafter he went to the spot and came to know that accused had gone to the P.S hence he returned to the P.S where accused was present and was formally arrested vide arrest memo Ex.PW18/G and his personal search was conducted vide memo Ex.PW26/A which bears his signature . He further stated that from the personal search of accused one mobile phone no.9811636111 was recovered. He also stated that disclosure statement of accused Ex. PW 26/B was recorded. He further stated that he along with police party reached at the spot with accused and at the instance of accused incriminating articles were recovered which were sealed and seized vide seizure memo Ex. PW 18/H to 18/ K. He further stated that thereafter case property was deposited in the malkhana and accused was medically examined and thereafter to lockup.

82. He further stated that on 7.05.2006 complainant informed him that accused had sold a car belonging to the deceased bearing no. DL­9C­0920, Fiat Palio. He further stated that thereafter he interrogated the accused regarding the said fact and he disclosed that he had sold the said car through one Manish @ Rocky. He further stated that accused took the police party to the place of occurrence and he got recovered one glass from the slab of the kitchen which was used by the accused for pouring safi and developer for the drinking of the deceased. He further stated that he seized glass after preparing the pulinda and same was sealed with his seal and seized it vide seizure memo Ex PW18/L.

83. In his cross examination he stated that on 28.04.2006 he visited the spot at 9:00 AM with ACP. He further stated that on his directions SI Maruti Rao sent the dead body to the mortuary of LHMC. He also visited that complainant visited the PS almost everyday after the incident. He further stated that he prepared the FIR No. : 213/06 35 site plan although the particulars mentioned on the site plan were not in his handwriting but he prepared the drawings. He denied that he had not prepared the drawings. He also denied that he did not call the photographer on the spot on 05.05.2006. He further denied that accused was not found at the spot on 05.05.2006. He also denied that accused was not offered paper to give explanation in writing about the incident on 05.05.2006. He denied that signatures of accused were not obtained on 20 blank papers while he was in police custody. He further denied that said papers were used for recording disclosure of accused.

84. He denied that the report Ex. PW 17/B was given by the doctor at his instance. He further stated that he conducted the personal search of accused but the personal search memo and arrest memo were not in his handwriting. He denied that mobile phone bearing no. 9811636111 was not recovered from the personal search of accused. He also stated that the make of mobile phone may be Haier. He further denied that accused had not made disclosure statement.

85. He further stated that he had asked 4­5 public persons to join the investigation but they did not agree. He further denied that no recoveries were effected at the instance of accused in pursuance of the disclosure statement made by accused.

86. PW 31 SI Maruti Rao deposed that on 28.04.2006 he was posted at PS Pahar Ganj and on that day he received DD No. 7A which is Ex. PW 30/A regarding the incident where he along with Ct. Ramphal reached the spot and found one lady Jaishree lying on the bed. He further stated that he conducted the search of deceased and further testified that he gave information to the consult SHO and senior officials and visited the spot. He also deposed that at the instance of SHO crime team was called. The Incharge crime team inspected the FIR No. : 213/06 36 scene of occurrence, photographer took the photographs at the spot as per his directions. He also testified that from the spot he seized pink colour bed sheet Ex. P 11, one pillow Ex. P 12 and Jaipuri quilt Ex. P3 vide seizure memo Ex. PW 18/E. He further stated that he seized the Dalia, beetle leaves vide seizure memo Ex. PW 18/D.

87. He further stated that he recorded the statement of complainant and another witnesses. Thereafter, at the instructions of SHO he and Ct. Ramphal took the dead body to LHMC hospital where doctor prepared the MLC of Jaishree, as per MLC Jaishree was declared brought dead. Thereafter dead body was shifted to the mortuary of LHMC and he prepared the inquest proceedings. He also stated that the mortuary attendant had handed over a pair of gold colour earing's which were seized by him vide seizure memo Ex. PW 18/C. He further stated that dead body was identified by PW 1 and 18 and after postmortem the dead body was handed over to PW 18.

88. He further stated that on 02.05.2006 he along with Ct. Mahender Singh visited the LHMC mortuary and collected one wooden box containing viscera of deceased duly sealed with the seal of LHMC, one sealed pullanda containing the under garments of deceased i.e. night suit and bra sealed with the seal of LHMC and one envelope containing postmortem report of deceased duly sealed with the seal of LHMC. All the above articles seized vide seizure memo Ex. PW 16/A and all the memos bears his signatures. He further stated that he deposited the pullandas in the Malkhana PS Pahar Ganj.

89. He further stated that on 05.05.2006 complainant came to PS and got his statement recorded which is Ex. PW 18/F on which Rukka was prepared which is Ex. PW 31/A and FIR was got registered. He further deposed that on 05.05.2006 he along with IO and SI I.K. Jha as well as Ct. Ramphal and other staff went to FIR No. : 213/06 37 the place of incident where they met the complainant and at his instance IO prepared the site plan which is Ex. PW 13/A.

90. He corroborated the version of the IO regarding the obtaining of opinion Ex. PW 17/B and also corroborated the version of IO regarding the arrest of accused conducting of his personal search recovery of mobile phone of accused disclosure statement made by accused. He further corroborated the version of IO regarding the seizure of incriminating articles effected in pursuance of disclosure statement of accused and at his instance and at his instance. He further corroborated the version of IO regarding seizure of documents of the car no. DL 9CG 0920.

91. He also stated that he had joined the investigation with SHO Ashwani Jaiswal PW 29 and had called the draftsman for preparation of the scale site plan who correctly identified the case property and accused.

92. In his cross examination he stated that when he went to the spot no lady police official was with him and he made formal search of deceased. He denied that he had wrongly taken the search of deceased. He further stated that the then SHO called the crime team at the spot on 28.04.2006. He denied that he did not seize the bed sheet, pillow and one Jaipuri quilt of cream colour. He also denied that he did not seize the daliya, beetle leaves. He also stated that although there were many public persons at the spot, he did not obtain their signature on the document prepared by him at the spot. He further stated that he had asked the public persons to join investigation but they refused. He further stated that he did not record the statement of mortuary attendant who gave a pair of ear tops to him but his signature were obtained on seizure memo of the same which is Ex. PW 18/C. He denied that he had not collected the wooden box containing viscera of deceased duly sealed with the seal of LHMC. He further stated that he had not FIR No. : 213/06 38 sent the under garments of deceased to FSL. He also denied that he did not prepare the Rukka. He denied that accused was on illegal custody from 28.04.2006 till 06.05.2006. He further stated that he did not know whether the confession of accused recorded on 05.05.2006 was placed on record by SHO. He denied that he did not recover the mobile phone from the personal search of accused. He also denied that accused did not make the disclosure statement. He denied that accused did not get effected the recoveries of incriminating articles from the Gayatri Beauty Parlour. He also denied that accused did not get recovered one string from the chhajja behind the board of Gayatri Beauty Parlour. He also denied that he did not seized the Tata Indicome Phone from the spot. He also denied that said phone was taken into possession on 28.04.2006 therefore no call was made from the said mobile phone after 28.04.2006. He also denied that he did not join the investigation. He also stated that he did not know regarding the litigation going on between the deceased and her mama Praveen Sharma. He denied that accused was falsely implicated in this case.

93. In the present case there is no eye witness account, the entire case hinges on circumstantial evidence. Regarding cases based on circumstantial evidence, it has been held in 2009 111 AD (SC) 389 as follows:

"when a case rests on circumstantial evidence, such evidence must satisfy oft­quoted tests viz: (1) the circumstance from which an inference of guilt is sought to be drawn, must be cogently and firmly established ; (2) those circumstance should be of definite tendency unerringly pointing towards the guilt of accused; (3) the circumstance taken cumulatively should form a chain so FIR No. : 213/06 39 complete that there is no escape from the conclusion that within all human probabilities the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and in capable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence,

94. One of the circumstance of great importance relied upon by prosecution is that accused was seen outside the house of deceased by one independent witness PW 8 who was the neighbour of deceased. PW 8 had deposed that he had seen the accused in the common staircase of their house on the intervening night of 27/28.04.2006 at around 1.15­1.30 AM. The accused had inquired from him the reason of reaching late. In reply he told the accused that he used to come late in routine. Ld. Counsel for accused stated that PW 8 did not produce his duty roaster to show that his working hours were 3.00 PM to 1.00 AM, hence he was a planted witness . However accused could not show that PW 8 had any enmity with him to falsely depose against him. Hence in my opinion PW 8 is a natural witness.

95. PW 31SI Maruti Rao sated that on receipt of DD no. 7/A Ex. PW 30/A regarding the death of one Jai Shree he found Jai Shree lying dead on bed. The dead body was removed to mortuary of LHMC hospital where the dead body was identified by PW 1 and PW 18. The dead body was of Jai Shree was established from the evidence of PW 1 and PW 18.

96. PW 3 Sunita deposed that on 28.04.2006 at 4.00 am accused came to her house and told her that Jai Shree was not opening the dorr although he was ringing the bell and she told the accused to open the door with duplicate key but FIR No. : 213/06 40 after sometime she again saw the accused sitting in the staircase and whey she asked him why he was sitting outside whether Jai Shree had not opened the door on which accused told her that door was not locked and it was bolted from inside and he was feeling very uneasy. She further stated that she helped accused in opening the door by putting her finger in the door and opening the bolt from inside as she knew that accused as well as the other girls working in the beauty parlour of the deceased used to open the door in that way. She also stated that went inside the room and found that deceased lying on the bed and left as she saw her sleeping but after 5 minutes accused came to her and told her that Jai Shree had expired. She stated that she called one Jeetu Ji who was living in neighbourhood and they all went inside the room of Jai Shree and they called one Dr. Kochhar how informed them that Jai Shree had expired.

97. PW 4 Dr. J. S. Kochar stated was called to the house of Jai Shree for examining her and she declared her dead and asked the accused and other persons to take the deceased to some government hospital.

98. PW 31 SI Maruti Rao stated that on 28.04.2006 at about 7.55 AM he received a DD 7/A which is Ex. PW 30/A regarding the death of Jai Shree in flat no. 140 ­C Motia Khan. The said information was given by one Ritesh Kumar brother in law of deceased. On receipt of DD no. 7/A SI Maruti Rao accompanied by Ct. Ramphal reached the place of occurrence and found one lady dead on the bed, after some time the then SHO Inspector Mohan Singh PW 30 and another senior police official reached the spot, crime team was called by the IO. Photographer of the crime team took the photographs and the crime team incharge inspected the dead body and also inspected the spot. From the deposition of PW 3 and PW 8 prosecution had proved that accused was seen outside the place of occurrence on the fatful night at odd hours between 1.15 am FIR No. : 213/06 41 to 4.00 AM and accused was all alone at that time.

99. However Ld. Counsel for accused argued that merely because he was seen outside the house of deceased is not sufficient to connect him with the crime and placed reliance upon 1991 Crl. L. J. 2191 Inderjit Singh and anr.

Vs. State of Punjab Wherein it has been held as follows:

"Penal Code (1860), s., 300­ Murder - Circumstantial evidence­ No direct evidence to connect accused with crime­ No enmity between accused and deceased­ Sole circumstance that deceased was last seen in company of accused­ Not sufficient to convict accused."

100. However I do not agree with the contention of Ld. Counsel for accused as facts and circumstances of the present case are distinguishable from the judgment relied upon. The guilty conscious of accused is to be seen from the fact that he woke up PW 3 neighbour of the deceased and asked her for help in opening the door although accused knew that the door could be opened by inserting a finger. By calling Mrs. Khanna accused wanted to create evidence in his favour so that no one would suspect him. However the version of PW 3 and PW 8 is cogent, consistent and reliable and they are natural witness and saw the accused outside the house of deceased at odd hours.

101. According to the prosecution motive of committing the offence by accused was the greed for wealth of deceased who was unmarried lady and accused was dependent on the income of the deceased.

FIR No. : 213/06 42

102. PW 2 Rajbala the sister­ in­law of deceased deposed that accused used to extort the income of beauty parlour . However Ld. Counsel for accused stated that she stated in her cross examination that she had not told the police that accused used to extort money from Jai Shree. In view of the contradictions in the version of PW 2 her testimony in this regard is not worthy of credit.

103. PW 3 Sunita the neighbour of deceased stated that 15 days prior to her death deceased had given Rs. 30,200/­ of the chit fund committee for paying the installment of the loan of her house and deceased told her if the amount remained with her it would be spent. She further stated that at that time she had not told anything about the accused.

104. In her cross examination by Ld. Addl. PP she supported the case of prosecution and stated that she told the police that 8­9 months prior to the incident Jai Shree and accused had several difference due the over expenditure by accused. She also stated that deceased used to keep her money with her. She also stated that Jai Shree had 3 chit fund committee out of which two had been released to the accused and Jai Shree had told her to tell the organizer of the Chit Fund not to release the third committee to accused and the third committee was released to Jai Shree and she got Rs. 30.,200/­ which she had kept with PW 3.

105. In her cross examination on behalf of accused she denied that deceased had not told her about the differences with accused 8­9 months prior to the date of occurrence. She also denied that deceased did not tell her about 2 committees having been released to the accused and was wanted the money of 3 rd committee. Nothing could be elicited in the cross examination of PW 2 which may cast doubt on her testimony in this regard.

106. PW 18 complainant deposed that accused had no source of income and was dependent upon income of beauty parlour of deceased. Complainant further FIR No. : 213/06 43 stated that Jai Shree had told him that accused used to spend a lot of money of the earning from the beauty parlour and Jai Shree used to keep her savings with Mrs. Khanna PW 3 for safe custody. PW 3 had corroborated the version of complainant in this regard . However Ld. Counsel for accused argued that accused had made improvement in his depostion and was confronted with his statement ex. PW 18/F wherein he had not stated that accused was dependent on the earning of the beauty parlour of deceased. In this regard reliance was placed on AIR 1981 SC 1223 wherein it has been held as follows:

"Penal Code (45 of 1860), S. 300­ Charge of murder­ Appreciation of evidence - Prosecution witnesses interested in deceased­They making improvements in prosecution story propounded by them at investigation stage in material particulars. "

107. However in my opinion only because there are some improvements in the testimony of PW 18 his testimony cannot be discarded especially when it is corroborated by deposition of PW 3. the prosecution thus established by evidence of PW 3 and PW 18 that accused was over spending the money of Jai Shree and deceased used to keep her money with PW 3 for safe custody.

108. Ld. Counsel for accused contended that extra judicial confession is a very weak type of evidence and unless it is shown to have been made to a very close relation, it would not be safe to rely on such a piece of evidence to convict the accused.

FIR No. : 213/06 44

109. The version of prosecution is that accused made extra judicial confession PW 2 sister in law of deceased on 04.05.2006 at 9.00 PM and PW 2 informed her husband PW 18 about the same. PW 18 stated that when his wife told him about the extra judicial confession made by the accused, he went to PS on 4.05.2006 got his statement Ex. PW 18/F recorded. However the contention of Ld. Counsel for accused is that PW 2 was a stranger to the accused hence it is not believable that accused made extra judicial confession to her. In support of his contention he placed reliance upon AIR 1996 SC 66 Kailash Potia Vs. State of Andhar Pradesh wherein it has been held as follows:

"Penal Code (45 of 1860), Ss. 300, 380­ Murder for gain­ Circumstantial evidence­ Extra judicial confession attled to be made to prosecution witness­No ostensible reason given for taking said witness in confidence to confess crime ­uncorroborated sole testimony of recovery witness not believable­ Other circumstances like presence of accused near scene of occurrence at midnight and injury on his finger­Two weak to form chain strong enough to connect accused with offence­Accused acquitted."

AIR 1975 SC 258 State of Punjab FIR No. : 213/06 45 Vs. Bhajan Singh and ors.

wherein it has been held as follows:

"Evidence act (1872), S. 24­ Extra judicial confession­ Value of. The evidence of extra judicial confession in the very nature of things is a weak piece of evidence "

110. PW 2 also stated that on 4.05.2006 at about 9.00 PM accused came to the house no. C­140 Motia Khan and told her that hehad committed the murder of Jai Shree and stated that "mujhe maff kard to aur kisi tarah bacha lo" . She also stated that she had told her husband about the said version of accused and her husband reported the matter to the police. In her cross examination she denied that relation of accused with Jai Shree were strained. She also denied that accused used to invest the money in the beauty parlour run by Jai Shree. She also stated that accused was allowed to live with Jai Shree as he assured her to help her in the rape case. She also stated that accused used to extort money from Jai Shree and mother in law. She denied that she had not the stated that said facts before the police as accused in fact spent money of Jai Shree and her mother in law.

111. It has been held in 1994 SC 214 which is as follows:

"It is well settled that the retracted extra judicial confession is a very weak type of evidence and strong corroborating circumstance should be there. "

112. It has been contended on behalf of accused that prosecution has failed to give any reason as to why accused took PW 2 in confidence to confess about the crime . It is alleged that prosecution has concocted a false story regarding the FIR No. : 213/06 46 extra judicial confession made by accused to falsely implicate him.

113. I am of the view that sure accused had no connection or relationship with PW 2, moreover PW 2 stated in her cross examination that accused was not familiar with her and she never had any occasion to talk to him hence the version of prosecution that accused made extra judicial confession to her lacks trustworthiness.

114. However circumstantial evidence points towards the guilt of accused. Ld. Counsel for accused argued that the circumstances which inference as to guilt of accuses is drawn have to be proved beyond reasonable doubt. In support of his contention he has placed reliance upon 152 (2008) DLT 750 DB Md. Jamil Vs. State of NCT of Delhi wherein it has been held as follows:

"Murder, Common intention­ Circumstantial evidence­ Benefit of doubt ­Circumstances of extra judicial confession not proved­ Circumstances of last seen together not proved by PW 14­ Infirmities in testimony of PW 14 demolishes prosecution case.

Chain of circumstantial evidence snapped badly­ On basis of evidence it cannot be said it is appellants alone who haave committed offence in question and none other than appellants­ Appellants given benefit of doubt­ Impugned judgment unsustainable, set aside.

FIR No. : 213/06 47

115. The prosecution relied upon the postmortem report to prove that death of Jai Shree was homicidal. Ld. Addl PP stated that as per the MLC of Jai Shree which is Ex. PW 27/A she was taken to the LHMC hospital on 28.4.2006 at about 12.45 PM in unconscious state and declared brought dead. The postmortem of deceased was conducted on 28.04.2006 at about 3.10 PM by PW 17 Dr. Devender Kumar.

116. PW 17 Dr. Devender Kumar prove the postmortem report and opined that death could have been resulted by ingestion of some toxic substance hence viscera was preserved for chemical analysis for confirming the nature of toxic substance.

117. PW 17 Dr. Devender Kumar stated that on 5.05.2006 IO moved an application before him for report regarding cause of death, he accordingly gave subsequent opinion which is Ex. PW17/B but said report was given without chemical analysis of the viscera. He further stated that on 18.05.2007 IO again moved an application for obtaining final opinion about the cause of death and also produced the FSL result and after perusal of the FSL report he given his final opinion that the possibility of ingestion of toxic substance or intoxicating agents could not be ruled out. He further stated that the possibility of death due to asphyxia due to alleged manner of compression of face and chest couldnot be denied as opined earlier. He also stated that exact opinion could not be given because of long time gap between the viscera preservation and chemical analysis of preserved viscera by FSL. He proved his final report Ex. PW 17/C. He denied that he had given the opinion under the pressure of police. He also denied that he had given wrong opinion. He also stated that opinion was given by them on their own observations and not entirely on chemical analysis as the FIR No. : 213/06 48 chemical analysis was generally conducted very late. He further stated that chemical analysis report has its own value and it cannot be discarded altogether. Hence on the basis of medical evidence prosecution has succeeded in proving that victim died of homicidal death due to compression of face and chest.

118. The contention of Ld. Counsel for accused is that case of of prosecution that deceased was poisoned to death by accused was demolished as in the FSL report Metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers and insecticides could not be detected on the exhibits which were lifted from the scene of occurrence i.e. daliya and beetle leaves, glass tumbler, stomach, piece of intestine, piece of liver spleen, kidney and blood gauze.

119. On the other hand it was contended by Ld. Addl. PP as poison was not detected in the viscera therefore possibility of suicide by deceased is ruled out. The contention of Ld. Counsel for accused was that deceased had cut her left hand vein in childhood as deposed by PW 18 as such she was suicide prone is without any merits as at that time deceased was raped by her maternal uncle but none of PWs deposed that she depressed or wanted to commit suicide.

120. Moreover the FSL results also corroborates the version of the prosecution as human saliva was detected on Ex. PW 1/C which was one pink pillow cover recovered from the scene of occurrence by PW 31 and seized it vide seizure memo Ex. PW 18/E. Moreover prosecution proved seizure of pink colour bad sheet, pillow and Jaipuri quilt by PW 31 SI Maruti Rao on 28.04.2006. The recovery of the same was corroborated by the complainant and PW 22 Ct. Ramphal. There were stains of screta and urine on the bed sheet while the pillow cover had yellow stains, one Jaipuri quilt of cream colour was also seized from the spot.

FIR No. : 213/06 49

121. PW 31 SI Maruti Rao deposed that on 28.04.2006 on receiving DD No. 7/A Ex. PW 30/A regarding the incident he along with Ct. Ramphal reached the spot. The incharge crime team inspected the scene of crime and took the photographs of the scene of occurrence. In this regard PW 6 Ct. Ved Prakash stated that on 28.04.2006 he along with SI Anil Kumar incharge crime team reached the spot and at the directions of IO he took 8 photographs of the main gate and the bed on which the deceased was lying. He proved the positives of the same Ex. PW 6/1 to 6 and negatives Ex. PW 6/1 to 14. As per the photographs deceased seen lying on pink colour bed sheet and a pink colour pillow was seen as well as a Jaipuri quilt of cream colour is also seen on the bed. Therefore, prosecution has proved beyond reasonable doubt, the recovery of the same vide Ex. PW 18/E.

122. Another circumstance relied upon by the prosecution which further connect the accused with the offence is that accused made a call at 3.18 AM on 28.04.2006 from the mobile phone of Jai Shree to his wife and he was present near his house at Subhash Nagar at that time. During the course of arguments Ld. Counsel for accused admitted during the course of arguments that accused had made the said call from the mobile phone of Jai Shree and he used to use her mobile phone. In this regard IO PW 30 ACP Mohan Dabass deposed that from the personal search of accused Ex. PW 26/A mobile phone of Jai Shree bearing no. 9811636111 was recovered and as per Ex. PW 25/A it has been proved that accused had made a call to his wife on the mobile phone no. 9810930430 at 3.18 AM from the mobile phone of Jai Shree. The mobile no. 9810930430 is mentioned in the arrest memo of the accused Ex. PW 18/G in the column regarding information to be conveyed regarding arrest. Hence the contention of accused that he did not make a call from the mobile phone of Jai Shree to his wife FIR No. : 213/06 50 rejected.

123. Moreover PW 25 Anuj Bhatia, Nodal officer Vodafone Mobile services limited had deposed that call details of mobile no. 9811636111 for the period 1.04.2006 to 10.07.2006 were given to the police on demand and the call details Ex. PW 25/A were correct as per their record. PW 25 proved the certified record regarding the ownership of mobile no. 9811636111. He stated that as per their record said mobile phone was in the name of Jai Shree. He proved customer agreement form was Ex. PW 25/B, photograph of the applicant is Ex. PW 25/C and election I­Card of the customer was Ex. PW 25/D. He also stated that as per Ex. PW 25/A call which was made on 28.04.2006 at about 3.18 AM was made from Maya Puri Press Colony from the mobile no. 9811636111 to 9810930430. Ex. PW 25/A was the computer generated record of Hutch. From the said circumstance the presence of accused at the house of deceased on the fateful night is firmly established.

124. Ld. Counsel for accused argued that he was falsely implicated as he was helping deceased in the rape case lodged by her against her maternal uncle Praveen Sharma. It was contended that complainant and Praveen Sharma in connivance with the police got him falsely implicated in this case. Accused had placed on record the copy of FIR no. 596/2001 registered u/s 376/313/494/506/201/34 IPC PS Pahar Ganj lodged against Praveen Sharma and others. Registration of the FIR which is Ex. DW 1/A has not been challenged by the complainant brother of deceased and PW 2 bhabhi of deceased.

125. It was further alleged on behalf of accused that flat no. 140­C LIG Flats Pahar Ganj was purchased by Jai Shree from her maternal uncle Praveen Sharma who was the registered owner of the house and complainant had deposed that in his cross examination that documents pertaining to the flat were executed in the FIR No. : 213/06 51 name of Praveen Sharma and subsequently the flat was transferred in the name of Jai Shree and there was bitterness between Jai Shree and Praveen Sharma regarding the issue of transfer of flat. He also deposed that case was lodged by Jai Shree against Praveen Sharma after about one year from the date of transfer of flat in her name by Praveen Sharma. Hence Praveen Sharma had a motive to kill Jai Shree but accused did not have any motive to kill Jai Shree.

126. It is further alleged on behalf of accused that deceased had specifically stated that Praveen Sharma and his family member wanted to get her kill, therefore it was maternal uncle Praveen Sharma who had motive to kill Jail Shree. It is further stated that accused had no motive to kill deceased whereas Praveen Sharam and his family member had motive to kill Jai Shree being on inimical terms with her.

127. It was also contended on behalf of accused that there was a dispute between Jai Shree and complainant regarding ancestral property in Monga Disst. which had been sold by the complainant for Rs. 9,80,000/­ regarding the distribution of sale amount of property. It was also alleged that deceased had lodged complaint against her brother in Monga. However no document was placed on record to substantiate the contention that deceased got a complaint registered against her brother, PW 18 complainant.

128. It was argued on behalf of accused that no chance prints could be lifted from the scene of occurrence as deposed by Incharge Crime team hence complicity of accused in the crime has not been established. However this contention of Ld. Counsel for accused does not merit serious consideration as there is circumstantial evidence to connect the accused with the crime.

129. The Ld. Counsel for accused has further argued that as door of flat of deceased was found bolted from inside accused could have not come out of the FIR No. : 213/06 52 flat after bolting the door. The said contention of Ld. Counsel for accused does not merit consideration as PW 3 stated that accused as well as the other girls working in the beauty parlour of the deceased knew that the bolt of the door could be opened by putting finger in the door . The testimony of PW 3 was not challenged in this regard. In view of the testimony of PW 3 that accused knew that door could be opened from outside, the accused was only creating evidence in his favour when he brought PW 3 to flat of Jai Shree to show that he was waiting outside the flat and Jai Shree was not opening the door inspite of his ringing the door bell. Thus prosecution has succeeded in proving that on the date of incident accused had tried to create evidence in his favour by bringing the neithbour PW 3 to open the door so that on one would suspect him.

130. Ld. Counsel for accused further contended that PW 26 SI I. K. Jha had deposed in his cross examination that accused had confessed regarding the crime on 5.05.2006 in the PS. It is further submitted that even inspite of confession made by the accused he was not arrested neither the said confessional statement recorded on 5.05.2006 was placed on record which is a serious manipulation by the prosecution. Ld. Counsel for accused further contended that accused was already in the police custody from 28.04.2006 when alleged confession was extracted from the accused.

131. However PW 26, PW 31 the member of investigating team and IO ACP Mohan Dabbas denied that accused was in police custody w.e.f. 28.04.2006 till his arrest on 6.05.2006. IO also denied that signatures of accused were obtained on blank papers. IO stated that accused had offered to give his version regarding the incident in writing whereupon paper was given to the accused. Nothing was elicited in the cross examination of IO regarding the disclosure statement made by accused on 5.05.2006 prior to his arrest. The contention of Ld. Counsel for FIR No. : 213/06 53 accused that blank papers were got signed by accused which were used for recording his disclosure statement is incorrect as accused had himself offered to narrate the incident in writing on 5.05.2006 and on the said date he was not in custody. Disclosure statement of accused Ex. PW 26/B was recorded subsequent to his arrest on 6.05.2006. Hence the contention of Ld. Counsel for accused that confession of accused recorded on 5.05.2006 was placed on record by IO is without merits.

132. The next contention of Ld. counsel for accused is that PW 26 stated in his cross examination that when they went to the flat in question on 6.05.2006 the main gate was bolted from outside and no body was present inside the house and he could not remember whether complainant and his wife was present inside the house or not. He also stated that he could not remember whether complainant and his relatives were residing in the flat of deceased since 28.04.2006 but he knew that after the arrest of accused on 6.05.2006 the complainant and his family started residing therein. He further stated that he could not state whether the place of incident was left opened from 28.04.2006 to 6.05.2006. It is alleged on behalf of accused that since the place of incident was not sealed therefore tampering with the place of incident could not be ruled out and all the recoveries which were made at the instance of the accused in pursuance of his disclosure statement after his arrest were shrouded with suspicion. It is also alleged that non joining of public witnesses at the time of recovery of incriminating articles in pursuance of the disclosure statement made by accused also casts a doubt on the case of prosecution as IO and other witnesses of the investigating team had stated in their cross examination that public persons were asked to join investigation but they refused. Hence the recovery of incriminating articles at the instance of accused on his disclosure statement are all shrouded with suspicion as no independent FIR No. : 213/06 54 witness was joined at the time of recovery. Ld. Addl. PP submits that recovery of articles was made at the instance of accused in pursuance of his disclosure statement and accused did not bring anything on record to show that police official had any enmity with the accused to falsely implicate him.

133. Ld. Counsel for accused also alleged that PW 26 had stated that IO had retained the seal on 6.05.2006 hence the misuser of the seal by IO cannot be ruled out. However in this regard nothing was elicited in the cross examination of IO on behalf of accused which may create a doubt, hence this contention is without merits.

134. Regarding the non­joining of public witnesses at the time of recoveries and investigation it has been held in 141 (2007) DLT 145 DB Shashi Shekhar @ Neeraj @ Raju Vs. State wherein it has been held as follows:

"(i) Indian Penal Code, 1860­Sections 302, 392, 411­ Evidence Act, 1872­Section 114 Illustration (e) - Robbery­ cum­murder - appreciation of the evidence­Evidence of two recovery witnesses cannot be discarded being suspicions for reason that no public witness joined at the time of recoveries - they had no axe to grind against appellant nor any motive attributed to them in cross examination - Both witnesses are Government servants and there is presumption U/s 114 Illustration (e) of evidence act FIR No. : 213/06 55 regarding fact that all official acts by government servants were regularly performed."

135. It has been further held in the above judgment "In any case even if the police official had not made any attempt to join pubic witnesses whose presence, as was rightly submitted by the learned prosecutor, is even otherwise very difficult to be ensured in these kind of cases where the police is investigating a case of an accused who is allegedly involved in many cases of robbery and murder, the evidence of police witnesses cold still be relied upon if no serious infirmity is pointed out in their evidence on behalf of accused."

136. In view of the above said judgment, the evidence of police witnesses cannot be discarded only because no public witness was joined at the time of recoveries. Moreover no serious infirmity was pointed out by Ld. counsel for accused in the evidence of the police witnesses. Further accused did not bring on record any relevant material either by way of his own evidence or in the cross examination of the police witnesses which may create a doubt regarding the genuineness of the acts of police witnesses claimed to have been performed by them while discharging their official duties during investigation.

137. It is further alleged on behalf of accused that the rope was seized vide seizure memo Ex. PW 18/K which was used to shut the main gate and accused FIR No. : 213/06 56 demonstrated the function of the rope as deposed by the complainant was not reliable as complainant had not deposed regarding use of the same in his statement recorded by the police neither any of the witness proved how rope was used by accused for closing the door. The complainant was confronted with his statement Ex. PW 18/A, Ex. PW 18/B and Ex. PW 18/F wherein it was not so recorded. However Ld. Addl. PP argued that rope was recovered at the instance of accused. I am of the view that omission in the statement of complainant before the police regarding the recovery of rope does not render his version unbelievable as the other witnesses of the investigating team and IO had deposed regarding the recovery of the rope at the instance of accused. The contention of Ld. Counsel for accused that police concocted false story of use of rope by accused for closing the iron gate of the house of deceased in connivance with the complainant and his mama is without any merits as accused had got the rope recovered. In view of the above judgment recovery of the same cannot be doubted with.

138. Ld. Counsel for accused further contended that it was the accused who used to take care of Jai Shree during her illness and her family member never used to visit her and accused was witness in the rape case got registered by Jai Shree against her maternal uncle . It was also alleged that her family member did not help her in rape case neither they were the witnesses in said rape case. It was further submitted that complainant and PW 2 stated that accused got the the name of complainant struck from the list of witnesses in the rape case. Ld. Counsel for accused further submitted that complainant was never cited as a witness as he was never close to deceased. It is also submitted that PW 3 neighbour of deceased had also stated in her cross examination that she never scene brother and sister in law of deceased visiting her except once. It is also alleged that the employee of FIR No. : 213/06 57 Beauty parlour PW 11 Seema had deposed that brother and mother of deceased never visited in her presence and whenever Jai Shree fell ill accused used to take care of her. It is submitted that in view of the version of PW 3 and PW 11 the version of complainant and his wife that they used to visit Jai Shree and had cordial relation with her cannot be accepted. It is also submitted on behalf of accused that complainant and his wife did not have cordial relation with the deceased and have never visited her and also did not help her in the rape case.

139. I am of the view that merely because they did not visit her it cannot be inferred that they had committed the crime. It is also alleged on behalf of accused that PW 3 Sunita stated that she had never scene the accused and deceased having any altercation. It is also submitted that PW 3 had deposed that amount of Rs. 5,000/­ out of Rs. 30,200/­ kept by deceased with her for the cremation . It is contended on behalf of accused that as per the deposition of PW 3 it is evident that family members did not even spend on her cremation but these facts does not show any enmity of complainant with his sister which could have led him to commit the crime.

140. The next contention of Ld. Counsel for accused is that the version of prosecution that accused had sold the car belong to Jai Shree is demolished in view of testimony of PW 9 Manish Sachdeva owner of Sachdeva Motors had stated that accused requested him to sell the car bearing no. DL 9C G 0920 as he was unable to pay the installment and he sold for Rs. 1,11,000/­ to one Sandeep Kumar on 23.03.2006. He also stated that car was earlier in the name of Jai Shree. However in his cross examination he stated that he did not have any documents to show that care was owed by Jai Shree and also stated that as per the record vehicle was in the name of accused. Moreover complainant also stated that he did not have any document to show that Jai Shree was the owner of car no. FIR No. : 213/06 58 DL 9 CG 0920 . In view o fthe testimony of PW 9 and PW 18 the prosecution has failed to prove that car no. DL 9 CG 0920 belonging to Jai Shree was sold by accused.

141. Ld. Counsel for accused on the other hand contended that there were no injury marks hence the story of prosecution is doubtful as in that case deceased would have been retaliated and there would have been injury marks on the accused and the victim. However the said contention of Ld. Counsel for accused cannot be accepted in view of the opinion given by doctor Ex. PW 17/B that possibility of death due to compression of face and chest could not be denied even in the absence of injury marks.

142. It is argued on behalf of accused that when the second opinion Ex. PW 17/B was given no articles or document was produced as deposed by doctor in his cross examination and at the time of third opinion no article was produced by the police as deposed by the doctor in his cross examination that police had produced only the FSL result and no other article or documents. PW 17 Dr. Devender Kumar stated in his cross examination that opinion was given by them on their own observations and not entirely on chemical analysis as the chemical analysis was generally conducted very late. PW 17 further stated that chemical analysis report has its own value and it cannot be discarded altogether. On the basis of the FSL report, I am of the view that deceased was not poisoned to death but was smothered to death by pillow in view of the postmortem report Ex. PW 17/A, Ex. PW 17/B and Ex. PW 17/C, therefore I am of the view that from the medical evidence and other evidence prosecution had succeeded in establishing beyond reasonable doubt that Jai Shree died homicidal death.

143. It has been also alleged on behalf of accused that the depositions of the complainant PW 18 is not reliable as they are interested witnesses being relatives FIR No. : 213/06 59 of the deceased and had deposed falsely because accused was known to the deceased and was helping the deceased in the rape case registered against the maternal uncle of complainant and deceased.

144. It is further stated that the complainant and his wife PW 2 made improvement in their testimony given to the police and had been confronted with the same in their cross examination hence their testimony cannot be relied upon to convict the accused. It had been alleged that PW 18 complainant had deposed that family of accused was dependent upon the earnings of the beauty parlour but he was confronted in his statement Ex. PW 18/F where it was not so recorded.

145. It was alleged that the complainant deposed in his cross examination that he stated before the police that accused had called Ms. Khanna to open the door was that no one would suspect him. He was confronted with his statement Ex. 18/F wherein the reason of calling Ms. Khanna had not been given. It is also alleged that complainant had also deposed that no complainant had been lodged against the accused by him and it is also submitted that Jai Shree had not lodged any complaint against the accused. It is also stated that complainant also stated in his cross examination that accused used to spend a lot of money of the earnings of the beauty parlour but he was confronted in his cross examination Ex. PW 18/F where it was not so recorded.

146. It is also argued that PW 2 the wife of complainant had stated in her cross examination that he had not stated before the police that accused used to extort money from Jai Shree and her mother in law. It has been alleged that in view of the improvements made in the testimony by the complainant and PW 2 no reliance can be place upon the depositions because they were interested witnesses and they had deposed falsely as accused was helping deceased in the rape case registered against her Mama and the complainant was interested in grabbing the FIR No. : 213/06 60 property of the deceased and they had a motive to kill Jai Shree.

147. Regarding the testimony of interested witness Ld. Add. PP placed reliance upon AIR 1953 SC 364 Dalip Singh and Ors.

Vs. State of Punjab it has been laid down as under:

"A witness is normally be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness as cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often to be forward in case before us as a general rule or prudence. There is no such general rule. Each case must FIR No. : 213/06 61 be limited to and be governed by its own facts."

148. I have carefully scrutinized the testimony of PW 2 and 18. I do not agree with the contention of Ld. counsel for accused that their testimony is unreliable or untrustworthy because they were the relatives of the deceased. In my view merely as there were some improvement in the testimony of PW 2 and PW 18 is not a ground to discard their testimony which are otherwise cogent and credible regarding the fact that accused was living with deceased and was dependent on the earnings of the beauty parlour run by deceased and was not doing any other work. PW 3 had also deposed that Jai Shree to keep the money for safe custody with her as accused was overspending her earnings. The testimony of PW 3 in this regard went unchallenged.

149. Ld. Counsel for accused also argued that complainant stated in his cross examination that he did not have any documentary proof of the earning of the beauty parlour therefore the deposition of complainant that income from the said beauty parlour was 1­1.5 lacs is incorrect as complainant further stated in his cross examination that after the death of Jai Shree the beauty parlour was being run by his wife and month and income of the beauty parlour is 3,000/­ p.m. due to the murder in the house. In my view complainant had explained that income was not much due to murder in the house where parlour was being run which is a reasonable explanation.

150. For the forgoing reason I am of the view that prosecution has succeeded in proving beyond reasonable doubt all the circumstances which form a chain consistent with the sole hypothesis of guilt of accused and inconsistent with his innocence. All the circumstances proved by the prosecution link the accused with the offence and points towards him as author of the crime. In view of the FIR No. : 213/06 62 forgoing reasons prosecution has succeeded in establishing beyond reasonable doubt that on the intervening night of 27/28.2006, at unknown time, at Flat no. 140­C, IInd Floor, Motia Khan, LIG flats, Pahar Ganj, Delhi accused committed the murder of Jai Shree , I accordingly hold the accused guilty and convicted him for the offence punishable u/s 302 IPC. Accused to be heard on the point of sentence on 6.04.2010.

      Announced in the open Court     (POONAM CHAUDHARY)                             
      On this day of 31st  March 2010    ASJ (Central­01) : DELHI




FIR No. : 213/06                                                                 63