Delhi District Court
State vs . Parvesh Tyagi Fir 121/11 (57293/16) on 21 February, 2018
State Vs. Parvesh Tyagi FIR 121/11 (57293/16)
IN THE COURT OF SHRI MANISH YADUVANSHI
ADDITIONAL SESSIONS JUDGE 05: WEST : DELHI.
IN THE MATTER OF
Case No. 57293 /16
FIR No. 121/11
PS Vikas Puri
U/s 302 IPC
STATE
VERSUS
PARVESH TYAGI
S/O SH.JAGDISH NARAYAN TYAGI
R/O H.NO. WZ4A, KESHOPUR VILLAGE,
NEW DELHI.
Date of Institution : 06.07.2011
Date of Reserving Judgment : 05.02.2018
Date of Judgment : 21.02.2018
Offence Complained of : U/s 302 IPC
Offence Charged with : U/s 302 IPC
Result: Acquitted Page 1 of 81
State Vs. Parvesh Tyagi FIR 121/11 (57293/16)
JUDGMENT
1.Accused Parvesh Tyagi has faced trial for committing murder of his wife namely Nisha Tyagi on the intervening night of 02/03.04.2011 in H.No. WZ4A, Kesho Pur Vihar, Vikas Puri, Delhi as per Charge dt. 22.09.2011 U/s 302 IPC. PROSECUTION'S CASE :
2. The case of the Prosecution is that DD no. 20A Ex.PW5/C was recorded in the local PS regarding receipt of PCR Call at 11:35 AM on 03.04.2011 from Control Room of having received a Call regarding death of Bhabhi of the Caller at WZ4A, Village Kesho Pur, which was assigned to SI Bhanu Pratap alongwith Ct.Rakesh.
On reaching the informed place after informing Superior Officers, it was revealed that Victim Nisha Tyagi has been taken to DDU hospital by her brother in law/Devar Sukesh Tyagi and other members of family. The Double Bed of her room was stained with blood while Walls were also blood stained. Insp.Om Prakash and SHO/Insp.Santosh Kumar also reached the informed place.
Result: Acquitted Page 2 of 81State Vs. Parvesh Tyagi FIR 121/11 (57293/16) Information was received from DDU hospital that Victim was declared "brought dead" on the MLC dt.03.04.2011. SI Bhanu Pratap went to Mortuary and inspected the deadbody on which various wounds were found and the body was blood stained. Ct.Rakesh was left to guard the deadbody. SI Bhanu Pratap returned to Crime Scene and prepared his Tehrir (Ex.PW24/A) on which, FIR (Ex.PW5/A) was registered on 03.04.2011 at 14:40 hours as per the Endorsement of Duty Officer (Ex.PW5/B). 2.1. Further investigation was assigned to the SHO/Insp.Santosh Kumar. He got the Crime Scene inspected by Crime Team which photographed it and obtained Chance Prints. Case IO prepared Site Plan and seized three empty bottles of Beer with one glass. He also seized blood stained Bed Sheet, Pillow Cover, Quilt cover, blood sample, blood stained earth and Earth Control. He also examined witnesses. Victim's husband Parvesh Tyagi was found absconding who was last seen leaving the house after the incident in the night time by both his Sons and his Brother Sukesh Tyagi. Witnesses disclosed that the suspect was addicted to Alcohol and various other Narcotic substances.
Result: Acquitted Page 3 of 81State Vs. Parvesh Tyagi FIR 121/11 (57293/16) 2.2. He was said to be unemployed and the only earning of the entire house was through family Transport business, accounts of which were maintained by deceased herself. Suspect had to ask money from her and on refusal, he habitually gave her beatings and even tried to strangulate her on one occasion. 2.3. Suspect was searched but could not be traced. He also took away Gold Bangles and Gold Chain of the Victim. 2.4. Subsequently, Postmortem was conducted on the deadbody of Victim and samples were collected. Cause of death is "Shock subsequent to multiple stab injuries inflicted over vital Organs of body. Manner of death is homicide". Viscera was sent to FSL for Chemical Analysis.
2.5. Family members of suspect found him roaming in Chander Vihar on 19.04.2011. They brought him to the PS and produced before the SHO/IO by his own father Jagdish Narain Tyagi. He was arrested after interrogation. The slippers which he was wearing on the night of incident were seized and sent to FSL for examination. Four Gold Bangles and one Gold Chain were also recovered and identified by the father of accused. The disclosure Result: Acquitted Page 4 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) statement was recorded according to which the suspect had murdered the Victim on the night of 03.04.2011 after the World Cup Cricket Final Match had concluded. He used a Pick Axe (गगतत) lying on the roof under a Tank and hit the same on head of the Victim. She lost consciousness and subsequently attacked over various parts of her body. He changed clothes and kept the Pick Axe and blood stained clothes in a Bag which he dumped in the bushes across Chander Vihar Nala in Paschim Vihar. He took Four Gold Karas, one Gold Chain and sufficient currency with him. As per Chargesheet, he made discovery of Pick Axe as well as his own blood stained clothes. Site Map of this place of recovery was prepared. FSL Analysis disclosed that blood on seized exhibits matched with blood on the Pick Axe. It was also opined subsequently by the concerned doctor that the wounds on Victim's body are possible by the recovered Pick Axe. Beer Bottles also were found having Finger Prints of accused. He was accordingly Chargesheeted.
Result: Acquitted Page 5 of 81State Vs. Parvesh Tyagi FIR 121/11 (57293/16) THE CHARGE :
3. On the basis of Chargesheet, a Charge for committing offence Punishable U/s 302 IPC was framed against the accused on 12.09.2011 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE (IN BRIEF) :
4. With Chargesheet, the Prosecution furnished original list of its 28 witnesses. 24 witnesses are examined while the Prosecution dropped witness Ms.Kanak Lata Verma, SSO, Chemistry, FSL, Rohini (Srl.No.
12) on 15.10.2016. Jagdish Narain Tyagi (Srl.No.8) i.e. father of the accused had died and thus deleted from the list of witnesses on the same date. Even Ct.Rakesh (Srl.No. 18) had died and hence deleted.
Unfortunately for the prosecution, even the case IO/Insp.Om Prakash (Srl.No.28) died and thus deleted on 15.10.2016 itself.
Result: Acquitted Page 6 of 81
State Vs. Parvesh Tyagi FIR 121/11 (57293/16)
S.No. Name of Evidence
Witness/Nature
PW1 HC Kishan Mohan (1) Deposed that case IO deposited MHC(M) on Six Pullandas and one Carton in 03.04.2011 sealed condition with him vide Entry no. 1585 in Register No.19 proved as Ex.PW1/A. (2) On 04.04.2011, IO deposited three Pullandas in sealed condition with Sample Seal vide Entry no. 1587 in Register no.19 proved as Ex.PW 1/B. (3) On 19.04.2011, IO deposited three Pullandas in sealed condition with Personal Search Articles of accused vide Entry No. 1767 in Register No.19 proved as Ex.PW 1/C. (4) On 02.05.2011, he handedover 11 Pullandas (except Carton) and Personal Search Articles with FSL Form and Sample Seals to Ct.Jitender vide RC no.22/21/22 Ex.PW1/B. Result: Acquitted Page 7 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) (5) Same were returned to him with Copy of RC on the same day with Copy of RC and Acknowledgement Ex.PW1/E (Originals were seen and returned).
(6) On 13.04.2011, he handedover duly sealed Viscera Samples with Sample Seal to Ct.Jitender vide RC no. 17/21/11 Ex.PW1/F and its copy with Acknowledgement Ex.PW1/G was returned to him.
(7) On 29.04.2011, he handedover one Sealed Pullanda containing Pick Axe to Ct.Jitender vide RC no. 21/21/11 Ex.PW1/H, which was redeposited in his Malkhana duly sealed with the seal of DDUH.
(8) On 15.06.2011, Ct.Jitender deposited 11 Pullandas sealed with the seal to FSL with FSL result which was handedover to the IO.
(9) On 06.06.2011, Ct.Jitender deposited Pullanda containing Viscera with FSL result which was handedover to the IO.
Result: Acquitted Page 8 of 81State Vs. Parvesh Tyagi FIR 121/11 (57293/16) (10) As per Witness, no tampering with exhibits was done while they remained in his custody.
PW2 Ct.Jitender As per him, he received case exhibits on 13.04.2011 from MHC(M) in sealed condition with FSL result and deposited the same.
He handedover receipt of Acknowledgement to MHC(M) on the same date. Samples remained intact in his possession. (This testimony is only in respect of RC no.17/21/11 Ex.PW1/H).
PW3 Devender Kumar This witness has provided his Oral Tyagi (brother of testimony in respect of deceased) Prosecution's case wherein he has broadly stated about the factum of Marriage of his Sister; her Children with the accused; habit of accused of consuming liquor and assaulting his Sister; previous attempt by accused to kill his Sister; fact about the conversations between him and the accused Result: Acquitted Page 9 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) regarding expenses for his daily needs and transfer of his Share in the Ancestral property in the name of his Sister. He has also deposed about the case of the prosecution regarding receipt of Phone Call from his younger brother Surender Tyagi on 03.04.2011 regarding the incident and the events that unfolded thereafter. He has deposed about the investigation conducted by the Police in his presence. The prosecution sought to prove following documents :
(1) Ex.PW3/A, Ex.PW3/B and Ex.PW3/C (Seizure Memos of various exhibits from Crime Scene).
(2) Ex.PW3/D (his statement regarding identification of deadbody of his Sister).Result: Acquitted Page 10 of 81
State Vs. Parvesh Tyagi FIR 121/11 (57293/16) (3) Ex.P.1 (one Double Bed Sheet Yellow, Orange & dark brown printed as well as blood stained).
(4) Ex.P.2 (Rajai Cover) (5) Ex.P.3 (Pillow Cover) (6) Ex.P.4 (Blood sample obtained in Cotton in Jar seized from the spot).
(7) Ex.P.5 (Blood stained Marble Piece).
(8) Ex.P.6 (Plastic Jar containing Marble Chips seized from the Crime Scene).
(9) Ex.P.7 (13) (Empty Beer Bottles).
(10) Ex.P.8. (Empty Glasses).
In the crossexamination, the witness was confronted with his statement U/s 161 Cr.P.C. Ex.
PW3/DA.
PW4 Chander Bose Tyagi The witness has also deposed in (brother of deceased) support of the case of the Prosecution and has led oral Result: Acquitted Page 11 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) Evidence on its behalf. During his testimony, the clothes purportedly worn by the Victim at the time of her postmortem examination were produced. The witness had identified the deadbody of the Victim and he identified these Clothes i.e. one ladies Shirt of yellow colour and one Printed Salvaar of white, green and yellow colour and both of which were blood stained. These are identified by the witness as Ex.P.9 (Colly.) In his crossexamination, the witness was confronted with his Statement U/s 161 Cr.P.C.
Ex.PW4/DA.
PW5 Retired SI Balkishan This witness recorded the FIR and (Duty Officer on proved its Photocopy as Ex.PW 03.04.2011) 5/A; his Endorsement is Ex.PW 5/B. He has also proved the True Copies of DD nos. 20A, 21A and 22A as Ex.PW5/C, D and E. Result: Acquitted Page 12 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) PW6 Inderjeet Singh The witness deposed that after (Security Guard in celebrating India's Cricket World Cup the house of Win, the accused and their Kids had accused from 10 gone outside to celebrate in a Vehicle PM to 06:30 AM/ and they returned after 2½ hours. He 07:00 AM) on the was declared hostile and cross intervening night of examined by the Prosecution but he did 02/03.04.2011. not support the Prosecution's case. PW7 Surender Kumar The witness has also deposed in Tyagi (elder support of the case of the Prosecution brother of and has led oral evidence on its behalf. deceased) In his crossexamination, the witness was confronted with his Statement U/s 161 Cr.P.C. Ex.PW 7/DA.
PW8 Dr.Vineet Kumar The witness was deputed by MS of Soni (Medical DDU hospital to depose on behalf of Officer, DDU Dr.Gaurav Dubey who prepared MLC Hospital) dt. 03.04.2011 of the deceased. The witness affirmed that the deceased was brought in Casualty by Sukesh Tyagi (PW13) on 03.04.2011 at 12:05 PM.
She was declared "brought dead".
This witness has identified the signatures of Dr.Gaurav Dubey at point A on MLC Ex.PW8/A. Result: Acquitted Page 13 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) PW9 Aman Tyagi (Son of This witness has been hostile to accused & deceased) the Prosecution as he did not support its case. He testified that after the World Cup Cricket Final Match was over, he alongwith his father (accused), his Chachaji (PW13) and his brother Abhishek Tyagi (PW10) had gone to their Farm House in their Endeavour Car at Najafgarh and returned in the morning only. His father and Chachaji (PW13) went to his grand father's room while he and PW10 went to the mother's room where they found that their mother was in injured condition. His father alongwith PW13 took his mother to the hospital. His father also went to Haridwar for performing last rites and was present in all the rituals.
Witness was crossexamined by the Prosecution and confronted with his statement to the police Ex.PW9/PX but he did not support the Prosecution at all.
Result: Acquitted Page 14 of 81State Vs. Parvesh Tyagi FIR 121/11 (57293/16) PW10 Abhishek Tyagi (Son of This witness has also been hostile accused & deceased) to the Prosecution as he did not support its case. He testified that after the World Cup Cricket Final Match was over, he alongwith his father (accused), his Chachaji (PW13) and his brother Aman Tyagi (PW9) went for a Walk near the house and thereafter, they all had gone to their Farm House in their Endeavour Car at Najafgarh and returned in the morning only. His father and Chachaji (PW13) went to his grand father's room while he went to the mother's room where he found that his mother was in injured condition. His father alongwith PW13 took his mother to the hospital. His father also went to Haridwar for performing last rites.
Witness was crossexamined by the Prosecution and confronted with his statement to the police Ex.PW10/PX but he did not support the Prosecution at all.
Result: Acquitted Page 15 of 81State Vs. Parvesh Tyagi FIR 121/11 (57293/16) PW11 Insp.Mahesh He inspected the Crime Scene on Kumar 07.05.2011 and prepared Scaled Site (Draughtsman in Plan Ex.PW11/A on the basis of Crime Branch) rough notes and measurements which he had later destroyed.
PW12 Smt.Renu Tyagi She is also hostile to the (Wife of Rakesh Prosecution. She maintained that Tyagi, brother of after the Cricket Match ended, the accused) accused, her brother in law/PW13 and their Children went to their Farm House in Najafgarh and returned in morning only. After returning, they started talking to her father in law who was present in the Drawing Room. PW9 and PW10 went to their mother's room and found her in injured condition.
Police did not inquire from her. The accused shared cordial relations with his deceased wife.
She was crossexamined by the Prosecution and confronted with her Police Statement Mark PW12/A. Result: Acquitted Page 16 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) PW13 Sukesh Tyagi This witness is also hostile to the (brother of Prosecution. According to him, all accused) the three brothers had mutually divided their Three Storey residence where they reside with their families. His elder brother's wife Nisha was murdered by someone on 02/03.04.2011. Although he did state that police investigated the Crime Scene in his presence and made Seizures of various exhibits but he did not identify the case property.
He was declared hostile and crossexamined by the Prosecution.
According to him, police did not make any inquiries from him and only obtained his signatures on Seizure Memos Ex.PW3/A to Ex.PW3/C. He was confronted with his Police statement Mark PW13/A, but to no avail.
Result: Acquitted Page 17 of 81State Vs. Parvesh Tyagi FIR 121/11 (57293/16) PW14 Ct.Azad Singh (on The witness had delivered copies of Duty Constable at the FIR to Sr.officers including the the PS) Ilaka MM.
PW15 Ct.Dhyan Chand Deposed that one Sukesh/PW13 (On duty Constable had brought Ms.Nisha Tyagi in at DDU Hospital injured condition at about 12 noon, on 03.04.2011) who was examined and declared "brought dead". He conveyed the information to the PS on which DD no. 22A was recorded.
PW16 Ct.Shiv Deep (On He received information at 11:25
duty Constable in AM about the incident. The PCR
CPCR on form completed by him is Ex.PW
03.04.2011) 16/A.
Result: Acquitted Page 18 of 81
State Vs. Parvesh Tyagi FIR 121/11 (57293/16)
PW17 Dr.Komal Singh Report of this witness is Ex.PW
(Postmortem 17/A. He had examined deadbody
Examination of the Victim on 04.04.2011. The doctor) doctor had noted 12 External injuries and also various Internal injuries on other vital parts of the body including the Head, the Chest(Throax), Liver, Gal Bladder and Biliary passages.
Time since death was opined as '36 hours'.
Injuries at Srl.No.1,2,3 and 10 were sufficient to cause death individually as well as in combination. Exhibits including Viscera were given to the IO.
On 29.04.2011, he examined the PickAxe (Sketch Ex. PW 17/C) and observed that all injuries except no. 4 are possible by it. This Opinion is Ex.PW17/B. Result: Acquitted Page 19 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) PW18 SI Manoj Kumar The witness examined Crime (Finger Print Scene on 03.04.2011. He lifted Proficient) and developed four Chance Prints from the three empty Beer Bottles and one Chance Print from a glass between 01:00 PM to 02:30 PM.
Chance prints were photographed.
In crossexamination, witness was confronted with his statement to the IO Ex.PW18/A. The Beer Bottles and a broken glass were produced. No initials were found on the same even though the witness had affirmed that he encircled and put his initials thereupon.
PW19 Ct.Kuldeep (in The witness had gone to the Crime investigation with SI Scene with PW24. He is the Bhanu Pratap/PW24) Carrier of Rukka. He got the FIR registered. Exhibits were lifted from the Crime Scene in his presence. He identified the following case exhibits viz :
Result: Acquitted Page 20 of 81State Vs. Parvesh Tyagi FIR 121/11 (57293/16) (1) Three Beer Bottles Ex.P.19/1;
(2) One broken glass Ex.P.19/2 (these exhibits were earlier exhibited by PW3 as Ex.P.7 (1
3) and Ex.P.8 respectively.
(3) One Bed sheet and one White cloth Piece Ex.P.19/3 (this exhibit was earlier exhibited by PW3 as Ex.P.1);
(4) Site Plan prepared by IO Mark X;
(5) Blood stained Pillow cover and one Cut white cloth piece Ex.P.19/4 (this exhibit was earlier exhibited by PW3 as Ex.P.3);
(6) Quilt cover and one cut white cloth piece Ex.P.19/5 (this exhibit was earlier exhibited by PW3 as Ex.P.2);
Since the witness was not disclosing the complete facts, he was crossexamined by the Prosecution on the aspect of seizure of Ex.P.19/4 and Ex.P.19/5 as also Site Plan MarkX X. Result: Acquitted Page 21 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) PW20 ASI Ajeet Singh The witness inspected the Crime (Incharge Mobile Scene on 03.04.2011. He proved Crime Team) his report Ex.PW20/A. PW21 Ct.Sukhram Pal The witness photographed the (Photographer of Crime Scene from different Mobile Crime Team) angles. The 16 photographs that he took are collectively exhibited as Ex.PW21/1. Their negatives are collectively Ex.PW21/2.
PW22 HC Subhash Singh On 19.04.2011, the witness (witness to Arrest remained in investigation with and recovery on case IO. They were searching the 19.04.2011) accused and when they reached Uttam Nagar Terminal, a Phone call was received by the IO that accused was seen near the Nala of Chander Vihar. They could not reach the informed place due to traffic Jam and thus IO/PW13 made a phone call. He told that father of accused is bringing him to the PS. The accused was brought in a private vehicle and handedover to the IO. He was interrogated and arrested vide Memo Ex.PW22/A. His personal Result: Acquitted Page 22 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) Search memo is Ex.PW22/B. He made a disclosure statement Ex.PW 22/C. Accused also led them to the bushes near Chander Vihar Nala towards Paschim Vihar and made discovery of a Gaiti (PickAxe) from the bushes which was lying wrapped in a Chunni and inside a Plastic bag. It was sealed and seized vide Memo Ex.PW22/B. Accused also pointed out to the place of incident vide Memo Ex.PW22/E. His Slippers were having blood stains and therefore seized vide Memo Ex.PW22/F. His blood stained clothes were also seized vide Memo Ex.PW22/D. The case property was identified as under :
(1) PickAxe (Gaiti) Ex.PW22/1;
(2) One Pant and Shirt recovered from accused Ex. PW22/2 (colly.);
(3) Two slippers of accused Ex.PW 22/4.
The witness was resiling from his statement and hence, crossexamined by the Prosecution. He denied that Result: Acquitted Page 23 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) clothes Ex.PW22/2 were found in the same plastic Katta from which PickAxe was recovered.
He however admitted that from personal search of accused, four golden Karas, one golden Chain and Rs.570/ were also recovered.
PW23 Dr.Rajender Kumar According to the witness, blood (FSL Expert) was detected on Exhibits 1 to 5, 7a7b,8, 10a10b and 11a11b.
Blood was not detected on Exhibits 6 & 9. His report is Ex.PW23/A. Serological Analysis Report Ex. PW23/B is that human blood of 'A group' was detected on Ex.1,2,3, 7a7b, 8 and 10a.
PW24 SI Bhanu Pratap (First He received Call at 11:35 AM on IO) 03.04.2011 and collected DD no.20A. He went to the informed place with Ct.Rakesh and found blood stains in the room of deceased on the ground floor.
Deceased Nisha Tyagi had been shifted to hospital by her family members.
Result: Acquitted Page 24 of 81State Vs. Parvesh Tyagi FIR 121/11 (57293/16) The area SHO also reached with his staff at the spot. Witness received DD no.22A and reported to DDU hospital where he examined the deadbody.
Ct.Rakesh was left to guard the deadbody and he returned to the spot, where he met the case IO and the Mobile Crime Team. He prepared Tehrir Ex.PW24/A which was returned back to the case IO after registration of the FIR. The witness could not identify handwriting and signatures of the case IO.
DEFENCE U/S 313 CR.P.C. :
5. In his Statement U/s 313 Cr.P.C., accused denied the case of the Prosecution. According to him, the entire Prosecution has been falsely saddled upon him by his inlaws as he was not on talking terms with them since a long time prior to the death of his wife. As per him, on intervening night of 02/03.04.2011, he alongwith his father, brother Sukesh and his sons Abhishek and Aman were watching World Cup Cricket final Match at his house. His wife served food to all of them at about 09:00 PM and they continued Result: Acquitted Page 25 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) watching the match. After it, he alongwith his brother and his Sons went to their Farm House in Najafgarh in their Endeavour Car to celebrate India's Victory. They returned home in the morning. He and his brother went to his father's room while his Sons went to his room. Aman came out immediately and told that blood was oozing from his Wife's mouth. Thereafter, he and his brother took the Victim to DDU hospital in the same Car while his Son and father followed them in another Car.
He also stated that he as well as his wife loved each other very much and he also got a Tattoo etched on his right upper Arm stating that "Nisha I love you".
He further stated that there is a Staircase near their Bed room which leads to the roof of their house. Roof's of adjacent houses of the village are adjoining each other. The Staircase on the roof has no door and anyone could easily come and go from his Bed room through the said room using the said Staircase. He claimed innocence. He did not opt to lead Defence Evidence. ARGUMENTS BY LD.ADDL.P.P.FOR THE STATE :
6. The ld.Prosecutor Mr.B.B.Bhasin has broadly submitted that the Result: Acquitted Page 26 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) Prosecution's case against the accused stands duly proved beyond any reasonable doubt. Ld.Prosecutor submits that the main witnesses of the Prosecution i.e. Pws 3, 4 & 7 have clearly deposed that the accused was a habitual drinker and also used to beat his deceased wife. It is submitted that all witnesses have given two particular instances of such extreme Cruelty during which the accused had broken the Arm of the Victim due to which she sustained fracture of Bone and the other instance where the deceased tried to strangulate his deceased wife.
It is said to be proven that the accused himself used to demand money from his deceased wife and that he was disturbed on account of his Share in the Ancestral Property which was denied to him and instead given to his wife/Victim. It is submitted that the Chain of circumstances is complete which lead to only one conclusion i.e. guilt of the accused particularly in view of the fact that the accused made discovery of the weapon of offence which has been connected the with Crime in view of testimony of Dr.Komal/PW17 and that he also led to recovery of his blood smeared clothes which are also connected with the Crime in view of presence of blood of Result: Acquitted Page 27 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) same group as that of the Victim, which is proven by PW 23/Dr.Rajender Kumar.
DEFENCE ARGUMENTS :
7. On the contrary, the defence counsel has argued that no case is proved against the accused beyond shadow of reasonable doubt. It is contended that there is absolutely no direct evidence against the accused and even the "Last Seen Evidence" has been disproven in the testimony of PWs, 9,10,12 & 13 as well as the testimony of the Security Guard namely Inderjeet Singh (PW6). It is contended that PWs 3,4 & 7 are not the Eye witnesses but only 'interested witnesses' who admittedly never made any complaint to anyone against his alleged violent behaviour towards his wife for more than 17 years of the subsistence of marriage of the accused and the Victim. It is submitted that the investigation in this case is under serious question mark as the witnesses of Prosecution have admitted that there is a Stair case that leads to the roof from which access could be gained by anyone in the bed room of the Victim. No investigation has been done on that aspect.
Result: Acquitted Page 28 of 81State Vs. Parvesh Tyagi FIR 121/11 (57293/16) It is further contended that the alleged recoveries in this case are extremely doubtful. It is contended that no public witness has been joined to the event of recovery despite availability. It is submitted that the place of the alleged recovery is a public place which is accessible to everyone. It is further submitted that the incident took place during intervening night of 02/03.04.2011 whereas the recovery has been allegedly shown to have been effected from the accused only on 19.04.2011 i.e. after about a gap of almost 16 days of the incident. It is contended that as a matter of fact, the recovery of PickAxe Ex.PW22/1 was made on the next day of the incident by the case IO from the gali behind house of accused which was later planted upon him.
It is submitted that the accused never absconded and there is no evidence to that effect at all. It is further contended that even the Postmortem Report of the Victim is full of doubts. It is urged that Dr.Komal/PW17 admitted during his crossexamination that injury no.4 is a fresh injury but has not explained about it. He further admitted that abrasions and contusions are possible with blunt weapon. Moreover, the doctor did not describe about the nature of Result: Acquitted Page 29 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) weapon in his report Ex.PW17/A. Furthermore, the doctor admitted that there is possibility of use of 'more than one weapon' in the Commission of offence. It is further contended that even the proximate time of Postmortem examination since death of the Victim which is provided as 36 hours is likely to be on the basis of the 'brief history' provided to the doctor by the IO. It is further submitted that admittedly, the deceased was found without any clothes on her body and the clothes that she was wearing were put on her by the female members in the house of accused.
In this context, it is particularly submitted that the case IO (now deceased) had moved an application Ex.PW17/DA to the HOD, DDU Hospital on 04.04.2011 seeking opinion on seven points in the postmortem examination. Point No.3 and 6 have been cut subsequently. In Point No.6, the case IO had sought opinion if there was any 'sexual assault or intercourse with the deceased before her death'. However, the same has been cut over with the help of a pen and it is not explained as to who did that. Accordingly, though the victim was found without cloths, yet, the IO failed to investigate this case to rule out possibility of any sexual assault on the victim.
Result: Acquitted Page 30 of 81State Vs. Parvesh Tyagi FIR 121/11 (57293/16) The defence urges that nonexplanation on the above aspect strengthens the defence that anyone could have gained access to the bedroom of the victim and commit the offence of murdering her.
8. The defence has also argued that there is no compliance to provision of Section 166 Cr.P.C. in this case as admittedly the alleged recovery of the blood stained cloths and the PickAxe has been shown to have been effected from a different police jurisdiction.
9. In support of its arguments, the defence has placed reliance on judgment in case titled as Sita Ram Vs. State (Delhi Administration) 1997 JCC 637 on three aspects. The first aspect is that as in the present case, the recovery of knife in the judgment cited was also made out of a Bush but Punchnama was not signed by any public and independent witnesses. The recovery is held to be doubtful and benefit thereof is to be given to the accused. The second aspect is like in the present case, in the judgment cited, the medical report did not establish that the blood on knife was of a human being and also that it was doubtful that the recovered weapon was used in the crime. The benefit of the same was Result: Acquitted Page 31 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) granted to the accused.
The third aspect is that like in the present case, the doctor said that three injuries were possible with the knife which was recovered at the instance of accused. It was held that so much evidence only was not sufficient to connect either the weapon or the accused with the injuries on the person of the deceased.
10. The defence also cited judgment in Satish Kumar Vs. State, 1995 (3) CC Cases 252 (HC) again on three aspects. The first aspect is that like in this case, no evidence was produced that the weapon of the offence had linked the accused with the crime.
The second aspect is that like in this case, no efforts were made by the police to join any independent witness before recording the disclosure statement of the accused and before effecting the recoveries and mere having the brother of deceased with them did not remove the suspicion about the genuineness of the disclosure statement and the recoveries effected on the basis of such disclosure statement.
The third aspect is that like in this case, where the Group Result: Acquitted Page 32 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) of blood appearing on the recovered article could not be deciphered by the experts and only human blood was found on that article, it cannot be linked with the crime in question.
11. The defence has also cited from judgment in Oliver Kujur and Anr., Kuljeet Singh @ Prince Vs. State of Delhi, 1 (2015) DLT (CRL) 607 (DB), on the aspect that recoveries of blood stained cloths and weapon of offence at the instance of accused has been held to be very weak evidence. It is also in order to highlight that there may be an element of truth in the version of the prosecution against accused and considering as a whole, the prosecution's story may be true; but between "may be true" and "must be true", there is inevitably a long distance to travel and the whole of this distance, must be covered by legal, reliable and unimpeachable evidence before the accused can be convicted. It was further observed that degree of agony and frustration may be caused to the families of the victim by the fact that heinous crime may go unpunished but then the law does not permit the Courts to punish the accused on the basis of moral conviction or on suspicion alone. The burden of proof in criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond Result: Acquitted Page 33 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) reasonable doubt on the basis of acceptable evidence and in case of doubt, accused is entitled to get benefit of the same.
The defence urged that in the present case, the prosecution merely raises a finger on the accused to show his history of violent behavior which is not proved by cogent, corroborative and unimpeachable evidence. It is urged that the chain of circumstances is not complete. It is further urged that the alleged recoveries are absolutely doubtful. It is pointed that the same was found to be the situation in Oliver Kujur (Supra) and it was held that, "even if we take the most charitable liberal view in favour of the prosecution, all that we get is only a suspicion against the appellants which cannot take the place of proof, therefore, appellant's are entitled to get benefit of the same".
12. The defence also cites from judgment in case titled as Chaman Lal Vs. The State, 1987 (1) RCR 308, to show the violation of provision of Section 166 Cr.P.C. is a serious investigation lapse. Where recoveries have been made within the jurisdiction of a different police station by an officer who does not belong to the police station where the accused resides is questionable. In law, Result: Acquitted Page 34 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) investigation officer is bound to report the matter of seizure to the concerned police station. Where is failure to make a record of the search in the books of that police station and also failure to inform the Magistrate about it, the investigation is to be rendered as "suspect".
13. Likewise, defence also cited from judgment in Varinder Maan @ Pappu Vs. State of NCT of Delhi, III (2016) DLT (CRL) 885 (DB) to show that like in this case, the assessment by a Autopsy Doctor regarding assessment of time of death is in realm of speculation. The doctor could not specifically point out exact time of death which is a break in chain of circumstances. 13.1. The judgment is also cited to show that like in this case, in the cited case, there were found to be allegations of the accused - husband beating his wife - deceased and on the basis of evidence, the Ld. Court held that, "Even if we were to assume that he was alluding to a conduct wherein, the appellant would beat his wife, such conduct in the past, at the worst, reveals a propensity to become violent. This, by itself, cannot lead to the conclusion that the appellant had a motto, or intention, to kill his wife, who was mother of his two children.............."
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14. Lastly, the defence also cited from judgment in Kishore Chand Vs. State of H.P., AIR 1990 SC 2140, which is in appreciation of circumstantial evidence to the effect that the prosecution has to travel all the way to establish fully all the chain of evidence which should be consistent only with hypothesis of the guilt of the accused and those circumstances should be of conclusive nature and tendency that they should be such as to exclude all hypothesis but the one proposed to be proved by the prosecution. In other words, there must be a chain of evidence so far consistent and complete as not to leave any reasonable ground for a conclusion inconsistent with the innocence of the accused and it must be such as to show that within all probability that the act must have been done by the accused alone.
POINT FOR DETERMINATION
15. The following broad Point for determination can be culled out in accordance to Section 354(1)(b) of Cr.P.C. viz :
"Whether the Victim Nisha Tyagi was murdered by accused on the intervening night of 2nd and 3rd April, 2011 in House No.WZ4A, Keshopur Village, Vikas Puri, Delhi in the manner charged with and Result: Acquitted Page 36 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) therefore proven to be guilty of committing offence punishable U/Sec.302 IPC?"
16. The Court has already set out the version of the prosecution, the evidence produced by prosecution witnesses and the defence of the accused that he took under Section 313 Cr.P.C. in the preceding paragraphs.
17. The entire case of the prosecution is completely based only and only on circumstantial evidence. There is no direct evidence in the form of any eyewitness account even though the victim died a brutal death in her own bedroom in a three storeyed residential complex. The residence is admittedly situated in a thickly populated village and there is ample evidence on record which clearly show that the roofs of houses adjoining to the house of the accused/victim were all inter connected. The exact time of offence cannot be pinpointed in this case as prosecution has not produced any witness who may have heard the commotion that ought to have taken place having regard to the fact that the victim had 12 external injuries on her body. She was found without clothes on her body which is also an admitted fact.
18. The victim, as per prosecution witnesses, was last seen at Result: Acquitted Page 37 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) around 9/9.30 p.m. on 2.04.2011 when she served dinner. Her movements post 9/9.30 p.m. have not been established by the Investigating Officer of this case. Admittedly, the members of family were residing in their separate portions of the building which is their residential premises. The bedroom of the accused and the victim is situated on the ground floor only but it has an opening on the roof which is not protected by any door. Moreover, there is no explanation as to why the IO was initially of the view that possibility of sexual assault on the victim was required to be ruled out but subsequently, the opinion sought at Serial No.6 of document Ex.PW6/DA was later cut with the help of pen. It is in the testimony of the doctor conducting postmortem examination i.e. PW17 Dr. Komal Singh that he did not give any such opinion as it was not required. He did not preserve the vaginal swab of the victim. This is a major irregularity in the investigation.
I say so as it was imperative of the case IO to have investigated as to what cloths the victim was actually wearing at the time of the incident and it is but natural that the clothes should have been recovered from the crime scene. No such clothes have been Result: Acquitted Page 38 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) shown to be recovered. As a matter of fact, the case has not been investigated at all on the above aspect.
It is not the case of the prosecution that the victim would have died instantly after sustaining Injury No.1. In the absence of medical evidence on the above, it cannot be inferred by this Court that the victim shouted for any help or not. If she did, then, somebody ought to have heard it. I may describe the external and internal injuries found on the body of the victim which are recorded in Postmortem Report Ex.PW17/A and also recorded in the testimony of PW17, viz.;
"On conducting the postmortem, I found the following external injuries on the body of deceased :
1. CIW (clean incised wound) present on left parietooccipital region of the scalp of size 6 cm x 1 cm x penetrated up to skull with clean cut bevelled margins.
2. CIW (clean incised wound) present on the right temporal parietal region of size 5 cm x 1 cm Result: Acquitted Page 39 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) x bone deep with clean cut margins with liquid and clotted blood present in around the wound.
3. CIW (clean incised wound) present on the right parietal region of the scalp of size 3.5 cm x 1 cm x bone deep with clean cut margins with liquid and clotted blood present in and around the margin.
4. Abraded bruise present on the base of the chin of size 5 cm x 3 cm with reddish brown in colour.
5. CIW (clean incised wound) present on size 3 cm x 1 cm x muscle deep, CIW just below from right ear.
6. CIW just below the injury no.5, 5 cm x 0.5 cm.
7. CIW 3.6 x 0.5 cm just 1 cm from injury no.6.
8. CIW 3.1 x 1.5 cm on right upper part of the chest.
9. CIW 2.7 x 1.5 present on right side of chest, 10 cm medial to right nipple.
10. CIW 3 x 1 cm below R tip of scapula. Eight Result: Acquitted Page 40 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) CIWs in and around these wounds size varying 4 x 3.5 cm to 2 x 1.5 cm spreading in area of 15 cm in diameter.
11. CIW 5 x 3 cm on R posterior side of the chest.
12. CIW 0.3 x 4 cm just blow 11.
All CIW are covered with clotted blood.
I further found following injuries during internal examination :
(A) HEAD :
Scalp/Skull/Brain, Meanings & Vessels : On further exploration of external injury no.1,2,3. The sub scalp contusion present on the bilateral parietal and right temporal and occipital region. Depressed fracture involving outer and inner table of the parietal bone of size 2.8 x 1.6 cm quadrangle in shape along its right and left side radiating linear fracture present extending 10.0 cm on the left side up to the lateral side of parietal bone horizontally placed and on its left side Result: Acquitted Page 41 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) radiating linear fracture extending upto the right parietal bone (9.7 cm) and depressed fracture of the right temporal bone involving both inner and outer table of the right temporal bone. Penetrating injuries of the right temporal and bilateral parietal lobe of brain, liquid and clotted blood present in and around.
CHEST (THORAX) :
Ribs and chest wall/Oesophagus/lungs and Pleural Cavities/heart and pericardial sac/Large blood vessel : Contusion present on the body of sternum and the corresponding area of external injury. Multiple fractures of the ribs 3 rd,4th, 6th, 7th and 8th right ribs on the lateral and posterior as pect of the right ribs with contused corresponding area. Multiple penetrating wounds present on the upper, middle and lower lobe of right lungs about 250 ml of liquid and clotted blood present on the left side of thoracic cavity.Result: Acquitted Page 42 of 81
State Vs. Parvesh Tyagi FIR 121/11 (57293/16) Liver, Gall bladder, biliary passages : Penetrating wound present on the right lobe on anterior lateral aspect with three in numbers and multiple penetrating wound present on the posterior aspect of the right lobe of liver."
19. Out of these injuries, the Injury No.1, 2, 3 & 10 were found to be sufficient to cause death in ordinary course of nature individually as well as in combination. It is apparent that Injury No.1 is the largest in terms of the dimensions as compared to the other injuries. Time since death is recorded as approximately 36 hours prior to postmortem. The concerned doctor had admitted that generally, such approximation is based on time range. He was suggested that his opinion regarding time since death is based on the basis of Inquest Papers only. The witness had admitted that brief history was collected from the Inquest Papers and this fact is also recorded in Ex.PW17/A. The witness admitted that the Injury No.4 was found to be 'fresh injury' as the colour of it was noted as "Reddish Brown". He admitted that colour of injury is important factor in determining the age of Result: Acquitted Page 43 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) wound. He admitted that bruises change colour from reddish to reddish brown after death and that the colour of bruise will not change after death. Accordingly, the victim ought to have been alive when she received Injury No.4 i.e. "Abraded Bruise on the Chin of size 5 c.m. X 3 c.m. Reddish Brown in colour". What is implied therefore is that the victim might not have died instantaneously and therefore, she may have shouted for help. It is surprising that such is not the case of the prosecution.
20. The motive that the prosecution has assigned to the accused for the alleged murder is his violent behavior and the fact that he was not provided sufficient money by his wife/victim, so that he could continue with his substance abuse i.e. Alcoholism. I may point out that there is no utterance by any prosecution witnesses particularly PWs3, 4 & 7 that the accused was also habitual of consuming Norcotic Drugs as claimed by them in the statements U/Sec.161 Cr.P.C.
21. At this juncture, it is important to glance on the relevant provisions of IPC. Culpable homicide is defined under Section 299 IPC which reads as under:
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299. Culpable homicide. Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Illustrations
(a) Always sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be thereby caused. Z believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide.
(b) A knows Z to be behind a bush. B does not know it A, intending to cause, or with the knowing it to be likely to cause Z's death, includes B to fire at the bush. B fires and kills Z. here B may be guilty of no offence; but A has committed the offence of culpable homicide.
(c) A, by shooting at a fowl with intent to kill and steal it, kills B who is behind a bush; A not knowing that he was there. Here, although A was doing an Result: Acquitted Page 45 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) unlawful act, he was not guilty of culpable homicide, as he did not intend to kill B, or to cause death by doing an act that he knew was likely to cause death. Explanation 1. - A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
Explanation 2. - Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment the death might have been prevented.
Explanation 3 - The causing of the death of child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.
22. Culpable homicide is first kind of unlawful homicide. It is causing of death by doing (i) an act with the intention of causing death; (ii) an act with the intention of causing such bodily injury Result: Acquitted Page 46 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) as is likely to cause death; (iii) an act with the knowledge that it was likely to cause death. Proceeding further, Section 300 IPC is a species of Section 299 and it defines murder. It is important to mention here that the charge so framed against the accused persons is a charge for murder which has been defined under Section 300 IPC which reads as under:
300. Murder - Except the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
Secondly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is cause, or -
Thirdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
Fourthly. - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is Result: Acquitted Page 47 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Illustrations
(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.
(b) A, knowing that Z is labouring under such a disease that a blow is likely to caused his death, strikes him with the intention of causing bodily injury; Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, give him such a blow as would not in the ordinary course of nature kill a person in a sound stated of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death.
(c) A intentionally gives Z a swordcut or club wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence.
Result: Acquitted Page 48 of 81State Vs. Parvesh Tyagi FIR 121/11 (57293/16) Here, A is guilty of murder, although he may not have intended to cause Z's death.
(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.
23. Each of the four clauses as mentioned above, requires that the act which causes death should be done intentionally, or with the knowledge or means of knowledge that death is a natural consequence of the act. An intention to kill is not always necessary to make out a case of murder. A knowledge that the natural and probable consequence of an act would be death will suffice for a conviction under Section 302 IPC. Reference may be had to "Santosh, 1975 CrLJ. 602 (SC).
24. The mental element in culpable homicide i.e the mental attitude of the agent towards consequences of his conduct, is one of the intention or knowledge. Motive is immaterial so far as offence is concerned, and need not be established. There are three species of mens rea in culpable homicide:
1. an intention to cause death;Result: Acquitted Page 49 of 81
State Vs. Parvesh Tyagi FIR 121/11 (57293/16)
2. an intention to cause a dangerous injury;
3. knowledge that death is likely to happen
25. The intention or knowledge necessary in order to render killing culpable homicide must be clearly prove by the prosecution which can usually be done by proof of the circumstances which prove the act of omission in question for the presumption is that a man knows the probable result of his conduct.
26. Before proceeding even further, it is submitted in brief that there is a difference between culpable homicide and murder. All murders are culpable homicide, however, all culpable homicide may not be murder as defined under Section 300 IPC and punishable under Section 302 IPC. The distinction between these two offences is very ably set forth by Melveill, J. in Govinda's case [(1876) 1 Bombay 342] and Sarkariya J in Punnayya's case [State of AP Vs. R. Punnayya AIR 1977 SC 45].
The facts which reduce murder to culpable homicide are:
(a) It should have been committed without pre meditation;
(b) It should have been committed upon a sudden quarrel;Result: Acquitted Page 50 of 81
State Vs. Parvesh Tyagi FIR 121/11 (57293/16)
(c) It should have been commission in the heat of passion;
(d) It should have been committed without the offenders having taken undue advantage or acted in a cruel or unusual manner;
27. Mensrea is an intention to cause death. That the victim suffered the blows found on her body at the hands of the accused is an aspect which is dependent on the circumstantial evidence only. Prior to it, the prosecution has to establish that the accused either had an 'intention to cause death' or had the 'knowledge that death would be only consequence of the injuries that he allegedly gave upon the victim'.
27.1. The first part includes the Motive for the assault. 27.2. On the aspect of 'Motive' the case IO, who unfortunately for prosecution could not be examined due to his death, is reported to have examined PW3, PW4 and PW7. All these witnesses are brothers of the deceased.
28. PW 3 has stated that accused assaulted his sister about 1½ /2 years prior to the incident due to which she sustained fracture in her Result: Acquitted Page 51 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) hand. However, the witness stated in his examination in chief that the above fact was told to him by his mother and other family members. The mother and other family members have not been examined by the prosecution. It is not the case of PW 3 that the above aspect regarding fracture was told to him by the deceased herself. The defence objected and rightly so that this part of testimony of PW 3 is merely 'hear say evidence' and therefore, does not have any evidentiary value. 28.1. PW 3 also stated that accused had attempted to kill his sister Nisha about 5/6 months prior to the incident. As to how and in what manner this attempt was made is not described. Further more, even this fact was told to him by his elder sister Rani who has not been examined. As per the witness, Rani was told about this fact by the deceased herself. The witness clarified that even his mother was not told about it as she was suffering from High Blood Pressure due to which, Nisha would not tell anything about her harassment to her own mother and used to tell about her sufferings to Rani. I have already pointed out that Rani has not been examined. Even this evidence is of 'hearsay nature' and therefore, does not have any evidentiary value. 28.2. Apart from the above two incidents, PW 3 did not describe Result: Acquitted Page 52 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) about any other incident of alleged beatings by the accused to the deceased.
28.3. He is not an eye witness to the incident and according to him when he reached the place of incident at 11.30/11.45 a.m after receiving the phone call from his brother Surender Tyagi (PW7), he was told by his Nephew Abhishek (PW 10) that his father(accused) had killed his mother (deceased) and ran away from the spot. Abhishek as PW10 has denied this fact in toto.
29. So far as the second brother i.e. PW 4 is concerned, he deposed on oath that after marriage, the accused started consuming liquor and used to beat his sister even on petty matters. He gives the incident of accused fracturing the hand of his deceased sister about 1½ /2 years prior to the incident and also narrates about the alleged attempt by the accused to kill his sister Nisha by pressing her neck about six months prior to the incident. As per him, these two facts were told to him by his family members and also by Nisha on telephone or by meeting him. Even this testimony is only of 'hearsay nature' and thus it does not have any evidentiary value.
29.1. PW 4 further stated that he came to know, after seeing bad Result: Acquitted Page 53 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) habits of accused, that his father had transferred the accused's share in the property in the name of his sister Nisha due to which the accused became more annoyed. As a matter of fact, no such document is produced by the prosecution to show that father of accused (since deceased) had transferred his property amongst his sons during his lifetime. On the contrary, it is in the testimony of PW 13 that all the three brothers (including accused) had mutually divided the building amongst themselves. Thus, there is no corroborative evidence regarding the distribution of property to three brothers. 29.2. Regarding the date of incident, this witness received the phone call from his elder brother i.e. PW 3 that something had happened with Nisha and therefore, he left Ghaziabad for Delhi and reached the house of accused at about 2 p.m. PW 3, his wife and his other family members were already present. He inquired from them about the incident on which PW 3 told him that Nisha was killed by the accused and that he is absconding. He asserts on oath that same fact was also told to him by family members and his Bhanja Abhishek Tyagi who also told him that accused took away the gold chain and four gold bangles etc after committing murder of Nisha.
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30. PW 3 Sh Devender Kumar Tyagi has never told that PW 4 made inquiries from him and that he told him about the above. It would not have made a difference otherwise also as even PW 3 is not an eye witness to the incident. PW4's Nephew Abhishek Tyagi (PW
10) has never deposed about any such fact while examined on oath.
31. The third witness to establish the 'motive' part is PW 7. He stated on oath that after marriage of Nisha with accused, he came to know that accused was not doing any job and used to consume alcohol. This evidence was rightly objected to as 'hearsay'. According to the witness, this fact was told to him by his sister. Even this does not change the hearsay nature. As per the witness, deceased further disclosed that accused used to beat her after consuming alcohol. He added over and above his statement to the police ExPW7/DA that accused, on many occasions, did not allow her to sleep till 4 a.m due to cruel behavior of accused. He also improved upon his earlier testimony to the effect that accused used to sleep whole day and drank alcohol in the evening. All these facts were admittedly told to him only by the deceased Nisha. The testimony remains 'hearsay in nature' and uncorroborated.
Result: Acquitted Page 55 of 81State Vs. Parvesh Tyagi FIR 121/11 (57293/16) 31.1. This witness has also deposed that 1½ /2 years before her death, accused Parvesh broken the hand of Nisha as told to him by Nisha only. In this context, he improved on his police statement when he stated that after the incident, he visited Nisha's house and spoke to fatherinlaw of deceased and also PW 13 who admitted that accused had committed wrong. No such fact is admitted by Sukesh Tyagi as PW 13. Fatherinlaw of deceased/father of accused Sh Jagdish Narayan Tyagi could not be examined as died. There is no corroboration to the above version.
31.2. Witness further stated that 67 years before her death, his brother PW3 had gone to Nisha's house to make them understand but he was asked to leave the house. Likewise, even PW 4 visited the house of Nisha. These facts are improvements, are hearsay and further never deposed by either PW 3 or PW 4. 31.3. In context of motive, this witness also deposed that 56 months prior to Nisha's death, accused attempted to strangulate her but she was saved by her fatherinlaw and PW 13. This fact was told to him by Nisha only. The defence rightly objected that nature of this testimony is only 'hearsay'.
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34. One additional fact that this witness has stated and which is not present in the statement of PW 3 or PW 4 is that a year prior to Nisha's death, accused came to his house with one person in the evening at about 9 O'clock and introduced him as Pick Pocketer. Both of them were drunk. On this occasion, accused asked this witness to get his forth share from their father's property and that he had approached PW 3 with similar request also. This is not the case put up by PW 3. Further, the witness went to the extent of introducing many other facts recorded in his examination in chief over and above many facts which he never disclosed to the police in his statement ExPW7/DA. He was confronted and contradicted with his police statement. These aspects are clearly major improvements. 34.1. Regarding the date of incident, he received phone call from PW 13 at 11.30 a.m that something wrong has happened to Nisha. He informed PW 3. He again made a call to PW 13 on insistence of PW 3 and told that Nisha had died. He went to the house of accused with his mother and his wife. PW 3 and his wife were already present on the spot. His Nephew/PW 10 Abhishek Tyagi was also present who told that, "Papa Ne Mummy Ko Maar Diya Hai Or Vo Faraar Hai".
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35. I have already said that PW 10 has not supported this version at all. Same is the position with PW 12 Smt. Renu Tyagi, wife of Sh Rakesh Tyagi (forth brother of accused).
36. There is no further evidence on the aspect of motive. There is no corroboration to the above version of PW 3, PW4 and PW7. In their cross examination, they were unable to state as to whether the victim was hospitalized on account of alleged fracture or not. The witnesses are not even aware as to from where she took treatment. Admittedly, none of these witnesses made any complaint to any one including the police regarding the alleged beatings by accused and his alcoholism during a period of 17 long years for which the marriage between the accused and the victim subsisted.
37. I may point out here that in the above circumstances, the version of PW3, PW4 and PW 7 regarding the aspect of violent behavior of accused towards the victim is, in the facts and circumstances of this case, merely their words against the words of PWs 9, 10, 12 & 13 who have deposed otherwise. None of this implies that the accused ever admitted to the fact that he was violent towards the victim at all. On the contrary, PWs 9, 10, 12 & 13 have deposed on oath Result: Acquitted Page 58 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) repeatedly that the behavior of the accused with his wife/victim was very good and both of them used to love each other. As a matter of fact, it can be found in the evidence that the accused had even got a Tatoo made on his right upper arm stating, "Nisha I love you". At the same time, it is not disclosed to the Court as to when this Tatoo was got etched by the accused. If it was done soon after the marriage i.e. about 17 years ago, then, it will loose its significance if compared with the time when the victim died. The difference will be when it is proven that the Tatoo was made sometime prior to death. The age of this Tatoo is not established.
38. Regardless of the same, the case IO never collected any evidence at all in order to lend credence to the version of PWs 3, 4 & 7 that the accused, under the influence of alcohol used to beat the victim and that on one occasion, he broke her hand and on the second occasion, he tried to kill her by strangulating her. Collecting such evidence would not have been difficult at all particularly when the alleged incident of 'strangulation' is stated to have taken place only 67 months prior to the death. To add to it, the above mentioned witnesses are found to be not believable in their testimonies that they Result: Acquitted Page 59 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) did not make any complaint against the accused to any one despite the fact that she was at the receiving end for 17 years of her marriage. These facts do not go hand in hand. They do not reconcile and can not be believed.
39. Why I say so is for the reason that all attempt by the prosecution to link the death with the above motive has also remained futile. Despite all efforts by the prosecution, its witnesses i.e. PWs 9, 10, 12 & 13 have not said anything against this accused. PW 10 Abhishek Tyagi has never accepted that he ever told PW3, 4 & 7 that his father/accused had killed his mother/victim and ran away with gold articles and cash.
39.1. Therefore, the two aspects i.e. 'motive' and the 'act' alleged on the accused of committing murder do not reconcile and not linked by the prosecution.
40. The Court while dealing with the testimonies of interested witnesses which in this case definitely are PW3, PW4 and PW7 being brothers of the victim, has to be cautious and its approach must not be pedantic. As explained by the Hon'ble Supreme Court of India in Jaya Balan Vs. U.T of Pondicherry (2010) 1 SCC 199, where a Result: Acquitted Page 60 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) Court is called upon to deal with the evidence of interested witnesses, its approach must not be pedantic, "the Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the Court must not be suspicious of such evidence. The primary endeavor of the Court must be to look for 'consistency". In the instant case, PWs 3, 4 & 7 are found inconsistent in their own statements recorded by the police and also recorded in the Court. The only aspect which can be said to be consistent amongst their testimonies is that the accused had a propensity to get violent with the victim while under influence of alcohol. On this aspect, these witnesses have given the narration of two particular incidents regarding breaking the hand of the victim and the other incident of strangulation. But, I have already pointed out that testimonies of all these three witnesses on this count is hearsay only. There is a confusion amongst them as to which incident was told to which of the witness by the deceased herself. If PW3 is to be believed then this fact was told by the deceased Nisha to her sister Rani only.
40.1. If PW 4 is to be believed, then this incident was told by Nisha Result: Acquitted Page 61 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) directly to him and family members.
40.2. The version of PW3 & PW4 does not reconcile. PW 3 never said that Nisha had ever disclosed about the incident of fracture and attempt to kill her to any one else except Rani. 40.3. PW 4 does not say that Nisha told this fact to Rani also. Further, PW3 in his cross examination was confronted with his statement ExPW3/DA regarding both the incidents. He admitted that he never told the police that accused attempted to kill his sister 56 months prior to the incident or that this fact was told by her to his sister Rani. He admits that Rani never gave any statement to the police. He admitted that he never told the IO that his mother was patient of High Blood Pressure and therefore, Nisha avoided telling anything to their mother and would disclose about her ordeal to Rani only. As a matter of fact, the cross examination of PW 3 is replete with such contradictions which have been admitted by PW 3 himself. He has definitely improved over his previous testimony to the police.
41. PW4 also admitted, when confronted with his statement to the police ExPW4/DA that he never told the police that accused, after marriage started consuming liquor and used to beat his sister even on Result: Acquitted Page 62 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) petty matters. He also did not tell the police anything about the incident of fracture and was confronted accordingly. He did not even know as to where her sister was treated for fracture and by whom. He admits of never making any complaint either to police or the Panchayat regarding the alleged ill treatment. He admits that his sister and wife did not give any statement to the police.
42. Lastly, PW 7 also claimed to have come to know about fracture to Nisha through Nisha only and that he even visited the matrimonial house and spoke with victim's fatherinlaw and PW 13. He also stated that even the elder brother Chander Boss Tyagi (PW4) also visited besides the younger brother Devender Tyagi (PW3). These witnesses never stated so.
42.1. The witness was confronted with his statement to the police ExPW7/DA on the above aspects and it is categorically found that the witness had improved drastically over his previous statement. Accordingly, there is great deal of inconsistency regarding the two above incidents.
43. The defence has cited from judgment in Varinder Mann @ Pappu Vs State NCT of Delhi III (2016) DLT (Crl.) 885 (DB) and Result: Acquitted Page 63 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) it can be safely said on the basis of ratio of said judgment that all that the prosecution could have established by the above evidence is the propensity of accused of getting violent. Nothing more can be established from this. I may add, as a matter of fact that there is no cogent evidence to even establish such violent nature of the accused.
44. Accordingly, the prosecution is unable to establish the motive part on the accused.
45. The next aspect pertains to further circumstantial evidence leading to the main act committed on the intervening night of 2 nd and 3rd April, 2011.
46. I have already pointed out that the testimonies of PWs 3, 4 & 7 are of no use to the prosecution in respect of the incident occurring on the night of 2/3.4.2011 as they are not the eye witnesses. PW 10 Sh. Abhishek Tyagi has never supported their version that his father/accused had killed the victim and ran away with her gold jewellery.
46.1. Accordingly, the only other witnesses who are of relevance to the prosecution in the above context are PWs 9, 10, 12 & 13 only. These witnesses have disowned their statements given to the Result: Acquitted Page 64 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) police/case IO. According to PWs 9, 10 & 13, they had left their house after watching the Cricket Match and returned only in the morning. The prosecution confronted them with their statements given to the case IO ExPW9/PX, ExPW10/PX and Mark PW13/A respectively. Only PWs 9 and 10 admitted that police recorded their statements. PW 13 never admitted that police ever recorded his statement Mark PW13/A. 46.2. By contradicting PWs 9, 10 & 13 with their statements purportedly recorded by the IO (now deceased), the prosecution merely brought on record the contradictions. The witnesses denied to have made confronted part of their statements to the police. As the case IO had died, the prosecution could never put these circumstances in the form of contradictions to the case IO for verification at his end. Thus, the contradictions are merely brought on record but they are not proved.
47. The scope and ambit of the entire manner of appreciation of statements under Section 161 Cr.P.C in the light of Section 162, 145 & 154 Cr.P.C are explicitly commented upon by the Hon'ble Apex Court in judgment titled V.K.Mishra & another Vs. State of Result: Acquitted Page 65 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) Uttarakhand & Another (2015) 9 Supreme Court Cases 588 which I quote, viz;
"15. Section 161 Cr.P.C. titled "Examination of witnesses by police" provides for oral examination of a person by any investigating officer when such person is supposed to be acquainted with the facts and circumstances of the case. The purpose for and the manner in which the police statement recorded under Section 161 Cr.P.C. can be used at any trial are indicated in Section 162 Cr.P.C. Section 162 Cr.P.C.reads as under :
"162. Statements to police not to be signed: Use of statements in evidence - (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; or shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872(1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the reexamination of such witness, but for the purpose only of explaining any matter referred to in his crossexamination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 Result: Acquitted Page 66 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.
Explanation - An omission to state a fact or circumstance in the statement referred to in subsection (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact."
"16. Section 162 Cr.P.C. bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police under Section 161(1) Cr.P.C can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162(1) Cr.P.C. The statements under Section 161 Cr.P.C. recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose: (i) of contradicting such witness by an accused under Section 145 of the Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the leave of the Court; and (iii) the re examination of the witness if necessary".
17. The court cannot suo motu make use of statements to police not proved and ask questions with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 Cr.P.C. "if duly proved"
clearly show that the record of the statement of witnesses cannot be admitted in evidence straightaway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during Result: Acquitted Page 67 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) crossexamination and also during the crossexamination of the investigating officer. The statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of the Evidence Act that is by drawing attention to the parts intended for contradiction.
18. Section 145 of the Evidence Act reads as under :
"145. Crossexamination as to previous statements in writing - A witness may be crossexamined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him".
19. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his crossexamination. The attention of witness is drawn to that part and this must reflect in his crossexamination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the Result: Acquitted Page 68 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo motu make use of statements to police not proved in compliance with Section 145 of the Evidence Act that is, by drawing attention to the parts intended for contradiction."
48. The Hon'ble Apex Court has categorically held that after proving contradictions on record, when the IO is examined, his attention should be drawn to the passage marked for the purpose of contradiction. Only then, it will be proved in the deposition of the IO who again by referring to the police statement will depose about the witness having made that statement. I may point out that the witnesses above have not admitted any of the contradictions and therefore, their statements made to the police are not proved as per law. Consequently, the prosecution never had a leverage to examine Result: Acquitted Page 69 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) the IO in the above context as he had died. The Court will have to fall back on their testimonies made on oath only. 48.1. In their such testimonies, they have not supported the prosecution's case except for the fact that a Cricket Match was being telecast by upto 12/12.30 night. The victim had served dinner to them at about 9/9.30 p.m. Thereafter, the witnesses alongwith accused left for their Farm House and returned only in the morning. In the morning also, only PW10 had gone to the room of the victim and he is the first person who found her dead. The accused and PW 13 had gone to meet their father inside the house. There is an anomaly between the testimony of PWs 9, 10 & 13 and PW 12 but it is minor only. As per PWs 9, 10 & 13, the accused and PW 13 had gone to the room of their father but as per PW 12, her fatherinlaw i.e. father of accused and PW 13 as well as grand father of PWs 9 & 10 was sitting in the drawing room. This minor inconsistency can not defeat their entire testimony. Even PW 12 is consistent in her testimony with PWs 9, 10 & 13. Case would have been different if the case IO could have been examined but unfortunately for the prosecution, same could never be done.
Result: Acquitted Page 70 of 81State Vs. Parvesh Tyagi FIR 121/11 (57293/16) 48.2. This aspect could have been covered by another angle i.e. by thoroughly examining PW 24 SI Bhanu Pratap as he reached the placed of incident prior to any other police official alongwith Ct. Rakesh. It is he who inspected the crime scene and went to DDU hospital. On return, he met Inspector Om Prakash (now deceased) and prepared a tehrir. Only after registration of the FIR, Inspector Om Prakash was assigned as the case IO. Thus, the said IO spent considerable time with PW 24 on the crime scene. PW 24 affirmed that IO had recorded his statement. The prosecution never asked him that IO also recorded statements of PWs 9,10, 12 & 13 in his presence presumably for the reason that PW24 stated in his examination in chief that he can not identify the hand writing and signature of case IO Inspector Om Prakash.
49. Accordingly, this Court can not form any opinion about the veracity of the investigation conducted by the IO and the claim of PW 13 that his statement was never recorded by the police or the claim of PWs 9 & 10 that the contradicted parts of their police statements were never told by them to the case IO in the manner Result: Acquitted Page 71 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) recorded in their respective statements under Section 161 Cr.P.C. Even PW 12 has denied that she ever made a statement to the case IO ExPW12/A.
50. The chain of circumstances against accused can only be said to be complete when each and every act of the accused was defined by the prosecution in minute detail without leaving any room for any other theory.
51. The defence has placed reliance on judgments pertaining to appreciation of circumstantial evidence. I may as well add that it is to be remembered that in cases where the evidence is of circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency that they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human Result: Acquitted Page 72 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) probabilities, the act must have been done by the accused. Reference may be had in this context to judgment in Naveen Chauhan @ Chussi; Ram Nandan Vs State (2010) Law Suit (Delhi) 1577 and also in State Vs. Ajay & Anr. 2016 (2) JCC 1371.
52. As a matter of fact, the prosecution could not produce any incriminating circumstances what to state about forming a chain thereof. The only witness who could have proved the 'last seen evidence' and which is also the very basis of this case is the Security Guard namely Inderjeet Singh (PW6). He is projected as a witness who saw the accused leaving the house on the intervening night of 2/3.4.2011. However, when examined as PW 6 in the Court, he deposed that after the Match was over, accused and their kids had gone outside to celebrate in the vehicle and the came after two and a half hours and went to the room of their father Sh Jagdish Narayan Tyagi. He denied knowledge of any other fact. He was declared hostile and cross examined by the prosecution. He denied of having made any statement to the police. He specifically denied that accused came out from the house wearing white pant shirt and went outside of the house at 1.40 a.m. Result: Acquitted Page 73 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16)
53. As said earlier, the case IO could not be examined to contradict the witness that he never gave any statement to the police. His version that the accused and the children returned after two and a half hours is not in sink with the testimonies of PWs 9,10, 12 & 13 as according to them, they had returned in the morning only. 53.1. On the contrary, PWs 9 & 12 have deposed about the stair case leading the roof nearby to the bed room of the victim through which one could easily come and go to the room of the deceased from the roof. It used to remain open. This fact is also corroborated in the testimony of PW 4 Chander Bose Tyagi who has seen the place of incident and admitted that, "The staircase goes to the roof from the bedroom of my sister Nisha. The matrimonial house of my deceased sister Nisha is situated in Keshopur and the roofs of houses are adjacent to each other".
Moreover, PW 7 Surender Kumar Tyagi has also admitted that he is familiar to the place of incident. According to him, "I had visited the place of incident of murder. It is correct that the place of incident is situated in Keshopur Village, Delhi and the roofs of the houses are adjacent to each other. It is wrong to suggest that Result: Acquitted Page 74 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) the staircase goes to the roof from near to the bedroom of Nisha. (Vol. The staircase is at some distance from the bedroom of Nisha). I do not have any knowledge if there was access to the roof through stairs from the room of Nisha). It is wrong to suggest that deliberately, I am avoiding the answer about the factual situation of staircase".
Accordingly, even the prosecution witnesses have left it open to doubt that room of the deceased was accessible only and only to the accused.
54. The next and last aspect of the case is on the inadequacy of medical evidence, Forensic evidence, seized exhibits and chance prints etc in their context with proof of circumstantial evidence. I have already observed that Dr. Komal Singh who conducted Post mortem examination has not explained in his report ExPW17/A or in his Court testimony about injury no. 4 and as to how this injury could have been a fresh injury although the time since death of conducting the post mortem examination is said to be 36 hours. Admittedly, PW 17 did not describe the type of weapon/object used in inflicting the injuries although information on this was sought Result: Acquitted Page 75 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) by the IO in his application ExPW17/DA.
As a matter of fact, even the time assessment since death is doubtful as pointed out above in this judgment. As per the own version of PW 17, even the injury no. 1 is possible to be inflicted by a 'Sua' and 'Jaity'. According to him, the same is also possible by other weapons. The doctor has categorically admitted that he has not ruled out possibility of use of more than one weapon in the offence. The weapon of offence i.e. PickAxe (ExPW22/1) is shown to have been recovered at the instance of accused from under some Bushes after many days of the incident. It is a public place and it is not shown that the weapon was discretely hidden under the Bushes. To add to it, the defence claims that this weapon was recovered on the very next day from a Gali situated towards back of his house. Thus, the police officials should have been cautious to conclude some independent member of public to the incident of recovery particularly when it was being made on the disclosure of the accused himself.
Admittedly, the place of recovery of PickAxe and blood stained clothes of accused which, as per seizure memo ExPW22/D, is Result: Acquitted Page 76 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) from Bushes across Chander Vihar Nala is a place not within the jurisdiction of P.S Vikas Puri. There is non compliance of Section 166 Cr.P.C which ought to have been made and therefore, rendering the investigation as doubtful. The defence has rightly relied on Sita Ram's case (Supra). It is held that recovery is doubtful.
It is not the case of prosecution that the PickAxe was examined for purpose of chance prints thereupon. Had it been done, it may have been proven that the PickAxe was handled by the accused which would have been a strong incriminating circumstance against this accused. This omission goes to benefit of the accused and is a break in the chain of circumstances against him.
The prosecution has projected son of the accused namely Abhishek Tyagi (PW10) as the person who was sent by the accused himself to purchase three Beer Bottles which are shown to have been recovered in empty state from the crime scene alongwith an empty glass which are ExP7 (13) and ExP8 respectively. However, PW10 did not say so in his oath testimony. As per the Crime Team Report, chance prints were lifted from the above exhibits which are said to be of the accused. However, the report of expert dated Result: Acquitted Page 77 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) 13.6.2011 has not been proved. It is PW 18 who lifted the chance prints. Four chance prints were lifted from three Beer Bottles and one chance print from the Glass. This fact is not recorded in his statement ExPW18/DA. According to this witness, he had put Mark of Identification on these Exhibits. He had encircled the same and put his initials on the chance prints on the three empty Beer Bottles and Glass. On the contrary, only encircled lines were found on the bottles but without any initials. Thus, the manner of lifting chance prints is doubtful. Further, the house belonged to the accused also and merely because it could be proved that the above exhibits had his finger prints, it can not be said as to when they were made. Fact remains that it would have been a very weak point of evidence.
The Court has gone through the photographs of crime scene ExPW21/1 collectively. A lot of blood can be seen spilled on the floor. It is surprising that the crime team or even the first IO were unable to note any footprints particularly when the blood had flown copiously drenching the bedsheet, walls and also the floor of the crime scene. PW 18 admittedly did not notice any footprints in bed room of deceased. The report of crime team Incharge ExPW20/A is Result: Acquitted Page 78 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) silent on this aspect.
The accused is shown to have absconded and when apprehended he was wearing sleepers which had dry blood on its soles. These were seized on 19.4.2011 vide Memo ExPW22/F. If the blood belonged to the victim, then there ought to have been footprints on the crime scene. Nevertheless, these sleepers were given Ex9 by PW 23 Dr Rajender Kumar. As per his report ExPW23/A, blood could not be detected on Ex9.
The report of Biology Division, FSL Rohini ExPW23/B is also of no avail to the prosecution as RH Factor of the blood group of victim and the blood of human origin found on Ex.1, 2, 3, 7a, 7b, 8 and 10a purportedly of the victim has not been provided. The recovery is doubtful. Accused pleaded innocence and absence from the crime scene. Exact time of death is not known to the Court. As per PWs, 9,10, 12 and 13, the accused watched Cricket Match with other family members till 12/12.30 a.m and straightaway left for his Farm House.
There is no evidence to establish his presence on the spot during the incident. There is no evidence of IO on record to show as Result: Acquitted Page 79 of 81 State Vs. Parvesh Tyagi FIR 121/11 (57293/16) to what efforts were made between 3.4.2011 and the date of arrest i.e. 19.4.2011 for tracing out the accused. According to PWs 9 and 10, their father/accused participated in last rites of the victim and even went to Haridwar for performing the same. Accordingly, it is not even established that the accused was absconding in the manner stated.
The chain of circumstances against the accused is majorly broken. Suspicion, howsoever strong, can not take place of proof.
CONCLUSION In view of the above discussion, this Court finds that prosecution has been unable to prove its case against the accused beyond reasonable doubts. In view of break in chain of circumstances, he is entitled to benefit of doubt. Consequently, accused Parvesh Tyagi is hereby acquitted of Charge U/s 302 IPC.
He is directed to furnish PB/SB in the sum of Rs.15,000/ (Rupees fifteen thousand) with one surety in the like amount, in view of Section 437A Cr.P.C.
Result: Acquitted Page 80 of 81State Vs. Parvesh Tyagi FIR 121/11 (57293/16) Further it is ordered that the case property of this case, if any, be disposed of/destroyed after expiry of period of fil ing appeal, if any.
ing appeal, if any.
File be consigned to Record Room.
Announced in the open Court (Manish Yaduvanshi) Dated: 21.02.2018 ASJ05(W)/THC/Delhi Case No. 57293/16 FIR No. 121/11 P.S. Vikas Puri State Vs. Parvesh Tyagi 21.02.2018 Present : Sh B.B Bhasin, Ld. Addl. PP for the State Accused produced from J/C. Sh Saurabh Srivastava, proxy counsel for Sh R.S Malik, ld counsel for accused.
Vide separate judgment of even date, accused stands acquitted of Charge U/s 302 IPC.
He is directed to furnish PB/SB in the sum of Rs.15,000/ (Rupees fifteen thousand) with one surety in the like amount, in view of Section 437A Cr.P.C. Further it is ordered that the case property of this case, if any, be disposed of/destroyed after expiry of period of filing appeal, if any. P/B, S/B not furnished.
P/B, S/B not furnished.
File be consigned to record room.
File be consigned to record room.
(Manish Yaduvanshi) ASJ05(West)/THC 21.02.2018 Result: Acquitted Page 81 of 81