Delhi District Court
State vs (1) Shobha on 11 December, 2012
IN THE COURT OF SH. O.P.GUPTA: DISTRICT JUDGE-CUM-
ADDL.SESSIONS JUDGE: INCHARGE (WEST): DELHI
SC NO.16/11
UNIQUE ID NUMBER: 02401R0134072011
STATE VERSUS (1) SHOBHA
W/O LATE SH. SHIVNATH
R/O H.NO.B-2/162,
PASCHIM VIHAR,
DELHI.
(2) SUNIL MALIK
S/O LATE SH. PRAKASH MALIK
R/O ARYA SAMAJ MANDIR,
PAKKA TANK, NAHAN,
HIMACHAL PRADESH.
FIR NO.: 382/2010
P.S: PASCHIM VIHAR
U/S : 302/34 IPC.
DATE OF INSTITUTION : 21.05.2011
ARGUMENTS COMPLETED ON : 26.11.2012
DATE OF ORDER : 11.12.2012
JUDGMENT:-
1. The case as unfolded by report u/S 173 CrPC is that in the morning of 26.12.2010 Shivnath aged about 25 years (sic it should be 35 years) was found dead in the bedroom of his house No.B-2/162, Paschim Vihar, Delhi. He was taken to Balaji hospital, Paschim Vihar from where information was given to the police vide DD No.14-A. The copy of DD was given to SI Surender Singh who alongwith Ct. Sandip went to the hospital and collected MLC. Shivnath was declared brought dead at 10.54 AM. The MLC revealed bluish discoloration of lips and tongue e pistal and VL/LL, blood stain present over nose c abrasion mark over neck anteriorly. The SHO also reached the hospital. There were signs of scratches near nose. The dead body was got post-mortemed in Sanjay Gandhi Memorial hospital. Photographs of the dead body were taken and the body was handed over to the legal heirs. Crime team was called for inspection which got the spot photographed. The woolen bed sheet of the double bed was having hairs of head, a blood stained pillow, one cushion and cushion cover having lot of blood was also there. The hairs were lifted, cushion and pillow were also taken into possession. The hairs were sealed in one pullanda with the seal of SSY. Cushion and pillow were sealed in separate pullanda with the same seal. The family members of deceased did not express suspicion on anyone. So, DD No.14-A was kept pending. Subsequent investigation was given to Inspector Deepak Sharma. He got the post-mortem report collected. According to the said report cause of death was asphyxia consequent to obstruction of airways by combined effect of manual strangulation of neck and smothering. All injuries were ante-mortem and fresh in duration. Injuries on neck were sufficient to cause the death in ordinary course of nature. Time since death was about 12 hours. On this FIR was got registered. The site was inspected at the instance of Km. Geeta/sister of deceased. Site plan was prepared. The IO made local enquiries and recorded statements of witnesses.
2. On 31.12.2010 DD No.13-A was recorded on the basis of information from Km. Geeta that her bhabhi Shobha had told something about death of Shiv in presence of Geeta and her chichi Kiran, police should be sent. The IO went to the house of the deceased, made enquiries from Km. Geeta and Smt. Kiran. They told that Shobha w/o deceased had confessed having killed Shivnath, in association with her friend Sunil Malik r/o Himachal Pradesh. The IO made enquiries from Shobha who replied that whatever her Chachia Saas and Geeta were saying, was correct. A team was sent to Nahan, Himachal Pradesh for apprehending Sunil Malik. On detailed enquiry Shobha w/o deceased told the IO that she knew Sunil Malik from before marriage with deceased, she had love affair with Sunil Malik who was running Chemist shop in Nahan, Kachacha Tank, her family members had married her with deceased without her consent, she could not object because her family members were upset due to her younger sister having married after running away from the house and her family members knew about her affair with Sunil, her family members were afraid that she might marry Sunil after running away from the house. She had not given birth to any child till the incident in question, she was not physically and mentally satisfied with her husband Shivnath, her husband used to come to the house after taking liquor daily, due to that reason she was in continuous contact with Sunil. Whenever she used to get opportunity, she used to meet Sunil. In January, 2010, she went to Nahan and her meeting with Sunil increased, she used to conversate with Sunil on telephone which became known to Shivnath. Shivnath took her mobile phone 9811936129 and gave another telephone to her. She was very much disturbed and made planning on telephone with Sunil to remove Shivnath from the way. As per said planning Sunil came to her house in the darkness of morning on 25/26.12.2010, she and Sunil pressed the mouth and neck of Shivnath with cushion and killed him. She used to talk with Sunil on telephone No.08091497835 which was given to her by Sunil. After killing, Sunil went back to Nahan, Himachal Pradesh. On the night of 25.12.2010 before Shivnath went for sleeping, Shobha served sleeping pills to him. On said disclosure, Shobha was arrested.
3. On 01.01.2011 Sunil Malik was brought from Himachal Pradesh to Delhi for interrogation. He also confessed his guilt and told that he had come to Delhi from Nahan in a hired vehicle which was driven by his acquaintance Dheeraj. He parked his vehicle on the main road, asked the driver to wait and went to the house of Shobha as per plan already made with Shobha. He and Shobha were continuously talking on telephone. He went near the house of Shobha as told by Shobha to him. From there Shobha took him to bedroom on first floor near staircase where Shivnath was sleeping. Shobha had already given sleeping pills to Shivnath in the night before he went to sleep and all this he had already talked with Shobha. He and Shobha pressed the mouth of Shivnath with cushion lying on the bed. After lot of efforts when Shivnath did not die, he pressed the neck with thumb and returned to Nahan in the same vehicle. On this Sunil Malik was also arrested.
4. Disclosures of Shobha and Sunil Malik were separately recorded. Their PC was taken. After sustained enquiry, Shobha got recovered from the house of her friend Ekta Sachdeva the telephone with which she used to talk with Sunil and on which she had made plan to remove Shivnath from the way. The said phone was having SIM of No.08091497835. Sunil Malik told that in the end of November, 2010 he alongwith his friend stayed in Alaska hotel, Karol Bagh where Shobha came to meet him and made entry in the name of Pooja. Attested photocopies of entry register and visitor register of the hotel were obtained. Sunil Malik told that the telephone with which he used to talk with Shobha and which was having two SIM Nos. 09418077897 and 09736764435 was in his shop in Nahan, Himachal. He used to talk more on Vodafone/later number. He used to talk 15-20 times in a day. As per information given by accused Sunil Malik, phone was recovered from Shubham Medicos, Kachcha Tank, Nahan. Enquiries were made from Aman Kumar from whom the vehicle was hired. Search was made for driver Dheeraj but could not be found. Husband of Shobha had put the SIM taken out from mobile snatched by him from Shobha and put the same in his own instrument. Call details and certified copies of documents of ownership of the two SIMs recovered at the instance of Sunil Malik were obtained. On checking it was found that lot of conversation took place in later phone of Sunil and the substitute phone of Shobha given to her by deceased. About 63/64 conversations took place between the two accused on the night between 25.12.2010 and 26.12.2010. As per Cell ID of the later phone of Sunil, his position in the morning of 26.12.2010 was near Paschim Vihar, Delhi. The earlier phone with Shobha snatched by her husband also revealed that she had talked much with that phone with Sunil. Call details and documents of ownership of phone number of Dheeraj were also collected. Scaled site plan was got prepared. Exhibits were sent to FSL Rohini. Result was not ready till the time of filing challan. Supplementary challan alongwith result of FSL was filed subsequently.
5. After completing investigation challan was filed. Copies were supplied. Case was committed to the Court of Sessions. A prima facie case for offence u/S 302/34 IPC was found against both the accused. Charge was framed to which they pleaded not guilty.
6. In order to substantiate its case the prosecution examined as many as 33 witnesses. PW-1 HC Ram Mahesh, duty officer, proved copy of FIR as Ex.PW1/A and endorsement regarding registration of FIR on the rukka as Ex.PW1/B. He also proved copy of DD No.29-A regarding registration of FIR as Ex.PW1/C.
7. PW-2 Ms. Geeta Lohani is sister of the deceased. She deposed that on 25.12.2010 she alongwith her fiancée Sachin Anand and her cousins went to Gurgaon. At about 8.30 PM she received a call from her brother Shivnath who asked her where she was. She told him that she was in Gurgaon. He asked her to come early. At about 12.30 AM she returned to house No.B-2/162, First floor, Paschim Vihar with her cousin and fiancée. Accused Shobha present in Court was already standing there and she did not have to ring the bell. Shobha came downstairs. Her fiancée and cousins wanted to come upstairs to drop her but Shobha stopped them. Shobha told that Shiv was sleeping and asked not go to upstairs in his room. This witness went upstairs straight to her room. Her mother was present and accused Shobha also came there. The accused sat with them for sometime and then went back to her room at about 1.00 AM. At about 1.15 AM she went to drawing room to talk to her fiancée on phone and continued talking to him. At about 2.45 AM accused Shobha came outside from her room and did not expect to see her in the drawing room. This witness could see shocking expression on face of Shobha. After looking at the witness, Shobha immediately went inside her room. After 2-3 minutes of entering her room, Shobha closed the door. After about 5 minutes this witness heard noise of opening other door of the room of Shobha and Shivnath which is situated near the stairs and the said door used to open in the entrance. This witness became scared on hearing the sound of opening said door. After 5 minutes she went inside her room and slept by the side of her mother. In the morning at 10 o'clock she heard her mother and Shobha talking to each other about Shiv that Shiv was not waking up. Her mother was insisting that he would wake up, he might have slept late at night. When this witness heard the noise of her mother and Shobha and panicking and saying "Shiv-Shiv", this witness ran inside her brother's room. She rubbed the hand and feet of her brother. She saw his lips, face and nails to be blue and his hands and feet were cold. She went inside her room to call friends and relatives. First of all she called her fiancée and thereafter her cousin brothers and thereafter her maternal uncle. They all came with an ambulance from Balaji hospital. Shobha was insisting why Shiv was being taken and was asking for calling a doctor at home. Shiv was taken to Balaji hospital. This witness remained at home. Her mother and other people went to the hospital. She received a call from her fiancée that Shiv was no more and he was being taken for post-mortem. They were told by the police that death of Shiv was not natural and all of them were wondering as to what has happened to Shiv. They were asking Shobha as to what had happened to Shiv. Shobha told that Shiv woke up at 6.30 AM and was feeling cold. So she gave another blanket to him and then he slept again. But they were not convinced with what was told by Shobha.
8. In the morning of 31.12.2010 this witness and her chichi Kiran and Shobha were sitting together at 8.30 AM. They were asking Shobha as to what had happened to Shiv. All of a sudden Shobha started weeping and confessed that she had murdered Shiv, with her friend Sunil. This witness immediately called the police. After about half an hour police officials including the lady police came. Shobha confessed before police also. Her Cousin Gopal was also present at that time. Shobha made disclosure Ex.PW2/A which bears signature of this witness at point A. After her marriage on 09.02.2011 she started helping her mother at the shop of her brother. At the shop she found a mobile phone make Sony Erricson which Shobha used to use earlier. Her brother had a suspicion on Shobha. So he took mobile phone from Shobha and kept it with him. This witness handed over the said phone to police vide memo Ex.PW2/B. Phone Ex.P-1 was the same which she handed over to the police.
9. In cross examination by counsel for accused Sunil, she stated that her brother was not a heart patient. She did not tell the facts on 26.12.2010 to the police that Shobha was standing outside in balcony on 25.12.2010 when this witness returned from Gurgaon or that Shobha opened the door as she did not suspect the death of her brother was unnatural. She came to know at about 4/5.00 PM on 26.12.2010 that death of Shiv was unnatural. She denied that she did not tell the above facts to the police as nothing such happened. She denied that she did not tell said facts to the police till 06.01.2011. Her statement dated 30.12.2010 which is Ex.PW2/DA did not contain said facts. Her statement Ex.PW2/DA and Ex.PW2/DB does not contain relations between Shobha and Sunil. The same did not contain that she had gone to Gurgaon with her fiancée and returned at 12.30 in the night of 25.12.2010. Her said statements and statement Ex.PW2/DC dated 06.01.2011 did not contain that her fiancée and cousin wanted to go upstairs to drop her but Shobha stopped them. Uthala took place on 28.12.2010. She admitted that Shobha was doubting on her and her family members as having killed Shiv. She denied that they concocted a false story about confession by Shobha subsequent to such doubt by Shobha. She denied that her going with Sachin/fiancée was not liked by Shiv. Earlier she had not remained outside till late in the night with Sachin. She denied that Shobha did not make any such confession or that her aunty and Gopal were not present at their house on 31.12.2010. She had not told the police that her brother had suspicion on Shobha or had taken mobile from her. She was confronted with her statement Ex.PW2/DB where Shobha weeping and confessing before this witness and her aunty Kiran were not mentioned in the same manner in which narrated in Court.
10. In cross examination by counsel for accused Shobha, she stated that at the time of marriage of Shobha they were residing at B-2/224, Paschim Vihar. The said house was sold after the death of father of this witness in 2005. Her uncle had a share in the house and the sale proceeds were divided. Then they shifted to present house B-2/162, Paschim Vihar on 01.11.2005. The new house was purchased in the name of mother of this witness from sale proceeds of earlier house. She admitted that Shiv had to pay debts of about Rs.30-32 Lacs which was also paid from the sale proceeds of earlier house. She did not know if Shobha contributed about Rs.4-5 Lacs from her parental side for purchase of present flat. She admitted that they had asked the property dealer to find a buyer for flat No.B-2/162 after death of Shiv. Her brother had taken a loan of Rs.15 Lacs from bank for her marriage and flat had been mortgaged for the said loan. There was no major problem between Shiv and Shobha, as per her knowledge. Shobha was not able to deliver natural child; efforts were being made for test tube baby and treatment was going on till May, 2010. Her engagement with Sachin took place in July, 2010. She denied that her engagement took place with Sumit r/o Ajay Enclave in 2009 or that the same was broken or that her brother was annoyed with her on her not agreeing with proposal for marriage with Sumit. Date of her marriage with Sachin was fixed in August, 2010. Her marriage took place in farm house named Silver Oak in Mundka. Shiv used to invest in share market once a while. Shobha used to give tuitions and earn Rs.6000/- to Rs.8,000/- per month. She did not know if jewellery presented to Shobha were sold twice in 2005 due to financial constraints in the family. She denied having sent any SMS to Kewal/ brother of Shobha around her marriage that he would not be able to save Shobha. She admitted that on 22.12.2010 Shiv had come from Vaishnu Devi alongwith her Saala Kewal. Next night he was performing sewa in Dargaha bare footed. She denied that Shiv was suffering from cold from 24.12.2010 onwards. She admitted that Shobha arranged a Christmas Party for children who used to come for tuition, on 25.12.2010 at her house. She denied that Shiv showed his displeasure over her being out of the house in late hours in the night with her fiancée on 25.12.2010. On 31.12.2010 she telephoned police from her landline phone No.65590500 but did not remember on which number she called the police. She did not remember if she called the police on landline or mobile. She denied that no call was given by her on 31.12.2010 to the police.
11. PW-3 Kiran is Chachi of deceased. On 26.12.2010 when doctor told that death of Shiv was not natural, all of them became mentally disturbed. She was staying at the house of her Jethani at that time and all the time they used to talk about Shiv only. All of them were wondering as to what had happened to Shiv. On 31.12.2010 she, Geeta and Shobha (accused present in the court) were sitting in drawing room. At about 8.00 AM or 8.30 AM, they were talking about Shiv. She and Geeta asked Shobha that Shobha was with Shiv in the room on that night and Shobha did not know as to what had happened to Shiv. Firstly, Shobha was evasive and was not properly giving reply. After sometime she broke down and started weeping loudly. They asked her as to what had happened to her. She replied that she had committed the murder of Shiv by throttling neck of Shiv with the help of Sunil. They thought how Shobha had been sitting with them and taking food for 4 days after doing such an act. She asked Geeta to inform police. Police came.
In cross examination by counsel for accused Sunil, she was confronted with her statement Ex.PW3/DA where it is not mentioned that Shobha broke down and started weeping loudly. She denied that she was not present at the house of her Jethani and did not stay in her house on the night of 30.12.2010 or she had made a false statement to support the prosecution case, being a close relative. She denied that Shobha had not confessed to them or the police.
In cross examination by counsel for accused Shobha same replies were given.
12. PW-10 Gopal is cousin of the deceased. He is a witness to disclosure of accused Shobha to the police. He proved arrest memo of accused Shobha as Ex.PW10/A and her personal search memo as Ex.PW10/B. In cross examination by accused persons he was confronted with his statement Ex.PW10/DA where the factum of Shobha confessing before him also does not find place. He denied that he did not go to the house of Shobha or that Shobha did not make any confession or that he was deposing falsely being close relative of Shivnath.
13. PW-13 Smt. Shyama Devi is mother of the deceased. She made a statement similar to that of PW-2. She also added that there were marks of scratches near both sides of nose of Shivnath. He had impression of bleeding from nose. She asked Shobha as to how those marks took place. Shobha replied that Shivnath had fallen on the stairs. She asked Shobha that fall on stairs could cause scratch at one place and not like scratches appearing on the face of Shivnath. Shobha persisted with her reply.
In cross examination by counsel for accused Shobha, she admitted that from 26.12.2010 onwards police was almost coming daily to their house and making enquiries from all of them. She might not have told the police that at about 10.30 PM Shobha came to her or asked her whether she could sit with her or she was surprised as Shobha was not talking properly with her for six months to one year. She volunteered that she might not have done so as it was a family affair. She did not tell the police that on first occasion Shobha went to see Geeta without call bell. She did not remember if Geetu told her that Sachin and Anand wanted to come upstairs but was not allowed by accused Shobha. This does not find place in her statement Ex.PW13/DA. Her statement Ex.PW13/DA did not contain that she told the police that she saw signs of scratches on face of Shivnath or impression of bleeding from nose or asking Shobha how Shivnath was having those scratches or Shobha telling her that Shivnath had fallen on stairs. She admitted that Sameer Sachdeva/her neighbourer had brought assistant doctor from the clinic of Dr. Sodhi before leaving for Balaji hospital who told that Shivnath was not having pulse. All unanimously decided to take Shivnath to hospital and none objected. She denied that Shobha had stopped taking non-veg food for 1½ / 2 years before the incident or that Shivnath was annoyed with Geeta due to her having gone with Sachin in late hours of night on 25.12.2010. She admitted that even after the incident, marriage of Geeta was done as proposed in February, 2011. She volunteered that in their family, marriage is not postponed after Ardas of Guru. The marriage was done on lavish scale but the invitees were reduced. She denied that she used to remain annoyed with Shobha as she could not deliver a child for 10 years. She admitted that on 07.01.2011 after arrest of Shobha, withdrawals were made by them by using ATM card of Shobha. Geeta normally used to sleep in her room. When Geeta woke up in the morning of 26.12.2010 she did not tell about happening on the night between 25.12.2010 and 26.12.2010.
14. PW-4 Rajesh Dubey, Assistant Manager from Hotel Alaska, Karol Bagh, Delhi, produced copies of entry in reception register pertaining to Dheeraj Kumar, copies of driving licence and voter I-card of Dheeraj Kumar which are Ex.PW4/A to C respectively. The same were seized by the police vide memo Ex.PW4/D. He had attested copies of Ex.PW4/A to Ex.PW4/C and had brought the relevant record. He also handed over the copy of visitor book Ex.PW4/E to the police which was seized vide memo Ex.PW4/F. Police brought one person at the time of production of documents by him. He could not identify the said person due to lapse of time. Even on seeing accused Sunil present in Court, he could not say if said accused was the same person who was brought by police.
15. He was cross examined by Ld. Addl.PP in which he admitted that person brought by the police told his name as Sunil Malik and further told that on 30.11.2012 he alongwith his associate stayed in the hotel. He produced a copy of entry of Sunil Kumar and Dheeraj which is Ex.PW4/G. The same was seized vide memo Ex.PW4/F. As per entry one lady Pooja with mobile No.999995236 and address of J-132, Pritam Pura, Delhi came and stayed with said persons for 15 minutes. Number of vehicle entered against said entry is HP-18A-0119. Person brought by police did not tell that name of said lady was Shobha or that she was his friend. He was confronted with portion A to A of statement Mark PW4/H where it is so recorded. He denied that he was deliberately suppressing the said fact with a view to save the accused persons.
In cross examination by accused persons he stated that he was not on duty in the hotel on 30.11.2010 and 01.12.2010. He had no personal knowledge about the entries made on those dates in reception register and visitor register.
16. PW-9 Narain Dutt Pandey was working as Receptionist in hotel Alaska, Karol Bagh, Delhi. He was on duty at reception of hotel from 8.00 AM to 8.00 PM on 30.11.2010. He did not remember who came to the hotel on that day and when. His cross examination by Ld.Addl.PP did not bring the desired result.
17. PW-5 Aman Kumar is owner of vehicle no.HP-18A-0119 and HP-01-N-0179. In November, 2010 accused Sunil Bhai present in Court brought the former vehicle to Karnal and later vehicle was brought by said accused to Delhi thrice, once in the end of November, 2010, second on 10.12.2010 and third on 25.12.2010. Both the vehicles were driven by Dheeraj who was arranged by accused Sunil Bhai. The later vehicle was returned on 26.12.2010 at about 3.00 PM.
18. In cross examination by counsel for accused persons, he stated that he maintained log book of the later vehicle which was registered as taxi. He did not handover the log book to the police. He did not maintain any booking record nor issued any booking slip. He had not employed a driver in his taxi. He denied that accused Sunil Bhai did not take his taxi on 30.11.2010 and 25.12.2010. His statement Ex.PW5/DA did not contain that accused took his taxi on 10.12.2010 also. Same is the fate about accused taking his vehicle on 30.12.2010 (sic it should have been 30.11.2010).
19. PW-6 Samir Sachdeva deposed that accused Shobha present in the Court is friend of his wife and her husband was his friend. On 28.12.2010 accused Shobha handed over a bag to his wife. He produced the said bag to the police which was taken into possession vide memo Ex.PW6/A. The said bag contained one abacus, one book of abacus mental exercise and one book of brain exercise. The said bag also contained one mobile phone of NOKIA black colour. He identified the bag as Ex.P1, books as Ex.P-2 and Ex.P3, abacus as Ex.P-5 and mobile as Ex.P-4.
In cross examination he stated that none resisted removal of Shiv to hospital. He heard that there was no sign of sadness on the face of Geeta on account of death of her brother. He volunteered that he himself did not notice the same. He did not read seizure memo Ex.PW6/A before signing the same as it was not legible.
20. PW-7 Mrs. Ekta is wife of PW-6. She made a statement similar to that of PW-6. In cross examination she denied that bag did not contain mobile phone or police did not recover any mobile phone from the bag.
21. PW-8 Dheeraj is the driver of vehicle in which Sunil came on the fateful day. According to him once he accompanied accused Sunil to Delhi but he could not tell when he did so, even by approximation. His cross examination by Ld.Addl.PP did not bring any fruits.
22. PW-11 HC Chhote Lal, DD writer proved copy of DD No.14-A dated 26.12.2010 regarding information from Balaji hospital as Ex.PW11/A, copy of DD No.13-A dated 31.12.2010 regarding Shobha telling something about the murder as Ex.PW11/B. PW-12 Ct. Jagdish Prasad took copy of FIR from duty officer to the spot and handed over the same to Inspector Deepak Sharma.
23. PW-14 HC Shankar Singh collected post-mortem report.
24. PW-15 Dr. J.V.Kiran was posted at Sanjay Gandhi hospital at the relevant time. He conducted post-mortem on the body of Shivnath vide report Ex.PW15/A. According to him cause of death was asphyxia consequent to obstruction of airways by combined effect of manual strangulation of neck and smothering. All injuries were antemortem and fresh in duration. The injuries in neck were sufficient to cause death in ordinary course of nature.
In cross examination by counsel for accused Sunil, he admitted that asphyxia can occur if a person is enclosed/covered where the air cannot pass for some time. He stated that marks of pressure of thumb and finger may appear on the neck when spoken generally.
25. PW-16 Ct. Harendra Singh took special copies of FIR to the office of Joint Commissioner of police, Ld. MM and DCP.
In cross examination by counsel for accused Shobha, he stated that he did not remember address of Ld.MM. In cross examination by counsel for accused Sunil, he stated that he reached the house of Ld.MM at 10.30 PM approximately. In the next breath he stated that he did not remember time of reaching the house of Ld.MM.
26. PW-17 Ct. Anita Kumari accompanied police team to the house of the deceased on 31.12.2010. She is witness of personal search memo of accused Shobha. She is also a witness of seizure of mobile phone produced by Ekta vide memo Ex.PW6/A. She identified the bag Ex.P1, books Ex.P2 & P3, abacus Ex.P5 and mobile Ex.P4.
In cross examination by Ld. Addl.PP she admitted that accused Shobha made disclosure Ex.PW2/A, accused Shobha got a mobile phone make Micromax recovered from wooden almirah in her bed room vide memo Ex.PW17/A. She identified the said phone as Ex.P6.
In cross examination by counsel for accused Sunil she stated that a paper chit was affixed on the mobile phones on which she signed. On the date of her examination in Court, there was no paper chit or her signatures on said phones. The phones and another articles were in unsealed condition when produced by the MHC(M) during her examination in Court.
27. PW-18 Israr Babu, Alternate Nodal Officer Vodafone produced copy of customer application form of phone no.9736364435 in the name of Sunil Malik which is Ex.PW18/A. The first page of call details of roaming calls is Ex.PW18/B and remaining pages containing call details from 01.07.2010 to 31.12.2010 are collectively Ex.PW18/C. Certificate u/S 65-B Evidence Act is Ex.PW18/D. As per roaming call details, said mobile phone was located in Delhi. Cell ID chart showing tower location is collectively Ex.PW18/E. He also produced copy of customer application form of phone No.9811936129 in the name of Pradeep Rajak which is Ex.PW18/F. Call details of said phone are Ex.PW18/G and certificate u/S 65-B Evidence Act is Ex.PW18/H. In cross examination by counsel for accused Sunil, he stated that neither he nor Anuj Bhatia were associated with maintenance/upkeep of servers where the data is originally maintained. He volunteered that he and Anuj Bhatia were authorized to retrieve the data directly from the servers. He denied that details provided by him is false or fabricated or prepared at the instance of IO.
28. PW-19 Rajiv Ranjan, Nodal Officer Tata Tele Services Ltd. produced customer application form and call details record of phone No. 8091497835 which are Ex.PW19/A and Ex.PW19/B, certificate u/S 65-B Evidence Act is Ex.PW19/C, reply of Sh. Madan in response to letter of IO is Ex.PW19/D. In cross examination by counsel for accused Sunil, he stated that Delhi roaming details were with Aircel and were not reflected in Ex.PW19/B. He denied that neither he nor Mr. Madan Vijayan were empowered to sign certificate u/S 65-B Evidence Act as original data was in possession of Aircel only.
29. PW-20 Shishir Malhotra, Nodal Officer Aircel Ltd. provided call details and location of phone spoken of by PW-19. He proved his reply as Ex.PW20/A, Cell I-D chart as Ex.PW20/B, call details as collectively Ex.PW20/C and certificate u/S 65-B Evidence Act as Ex.PW20/D. In cross examination by counsel for accused Shobha he admitted that in the entire CDR provided by him there was no voice call from number in question while the same was roaming in Delhi circle. The said data is with Aircel.
30. PW-25 Vishal Gaurav, Nodal Officer, Bharti Airtel Ltd. provided ownership, application form and documents attached therewith, call details, location including roaming of mobile phone No. 09816667979 vide Ex.PW25/A. Copy of application form is Ex.PW25/B, copy of re-verified application form is Ex.PW25/B1, copy of documents attached therewith is Ex.PW25/B2, call details of Delhi are Ex.PW25/C, call details of Haryana are Ex.PW25/D, Call details of Himachal are Ex.PW25/E. Relevant location chart of Himachal, Delhi and Haryana as Ex.PW25/F to H respectively. Certificate u/s 65-B Evidence Act as Ex.PW25/J. In cross examination he stated that as per records of the company, Dheeraj Kumar was owner and user of said phone. He was not associated with direction, control or administration of activities relating to the capturing of data. He could not tell exact pre requisite of Section 65-B Evidence Act. He denied that he was not competent to sign certificate u/S 65-B Evidence Act. He denied that alpha numeric number suggests human intervention as automated process of computer cannot commit an error of such a technical nature.
31. PW-21 Dr. Sharad Manar, CMO Balaji Action Medical Institute examined Shivnath vide MLC Ex.PW21/A. PW-22 SI Mahesh Kumar, Draftsman prepared scaled site plan Ex.PW22/A. In his cross examination by accused persons he denied that he did not visit the spot or that he prepared the scaled site plan at the instance of IO. PW-23 Ct. Sukhram Pal was in the mobile Crime team. He took photographs Ex.PW23/A1 to A10 negatives of which are Ex.PW23/A11 to A20. PW24 SI Hawa Singh brought accused Sunil Malik from Nahan to Delhi in the morning of 01.01.2011.
32. PW-26 SI Surender Singh is the person to whom copy of DD No.14-A was initially given and who went to Balaji Action hospital. He recorded statements of mother and wife of the deceased. He prepared inquest papers, recorded statements regarding identification of dead body. He took into possession the wooden box containing the viscera of the deceased sealed with the seal of hospital, one envelope containing blood gauge sealed with the seal of hospital, envelope containing blood gauge sealed with the seal of hospital and sample seal. He went to the spot, called the crime team, got the scene photographed, seized two pillows, empty bottle of whisky and bunch of hair. He identified the big pillow as Ex.P1 (duplicate) and small pillow as Ex.P2 (duplicate), empty bottle of whisky Ex.P3 (duplicate), plastic container containing bunch of hair Ex.P4 (duplicate).
In cross examination he stated that doctor did not tell him that it was an unnatural death. He denied that post mortem report was prepared and handed over to him by the concerned doctor on 26.12.2010 itself after completion of post-mortem examination. He did not feel that it was a case of natural death, on seeing the dead body. PW-27 ASI Azad Singh is the Incharge of mobile Crime team. He deposed that there was a blood stained pillow on the bed and bunch of hairs. He proved his report as Ex.PW27/A. In cross examination he admitted that he did not mention about the whisky bottle lying at the spot in his report Ex.PW27/A.
33. PW-28 ASI Siri Kishan went to Nahan for recovery of mobile phone which was seized vide memo Ex.PW28/A. The phone was of make LAVA. The same was identified as Ex.P6. In cross examination he stated that he did not know how IO called Sh. Rajender Bansal at the shop, whether by giving him a phone call or by sending one of the officials of the police party. Rajender Bansal was not asked to sign the seizure memo of mobile phone nor any public person who had come there was asked to sign the seizure memo. There were shops around the shop of accused. He volunteered that all the shops were closed. On the back side of the shops it is residential area. No person was called to join the search, from that residential area. No police official from the Police Post was called to join the search. He denied that no search of the shop of the accused was conducted or that no mobile phone was produced by the accused or seized by the police.
34. PW-29 HC Hawa Singh remained with the IO throughout the investigation. He proved further disclosure statement of accused Shobha as Ex.PW29/A, arrest memo and personal search of accused Sunil as Ex.PW29/B and C. In cross examination by counsel for accused Shobha he admitted that people were passing through the road in front of the house of deceased, when they went there. IO requested 1-2 passers-by to join the investigation but they refused. No notice was given to them. He denied that Shobha did not produce any Micromax phone before the IO or the same was already in the custody of the IO. The mobile phone was not sealed at the time of seizure. They went to ground floor where they met Ekta Sachdeva and her husband. IO requested passers-by on the street to join investigation but they refused. IO did not request any neighbourer to join the investigation. NOKIA 3110 C is easily available in the market. But said phone was in switched of condition at the time of seizure. The said phone was never switched on by the IO or anybody else in the police party till the time it was deposited in the malkhana. No call or SMS was made through said phone by the IO. He denied that no disclosure statements were made by the accused persons in his presence or that no seizures were made.
In cross examination by counsel for accused Sunil he stated that many public persons were present in the P.S at the time interrogation of Sunil was started. IO did not join any of them. IO did not call any person from surrounding houses. He denied that false entries were made by the IO in the hotel record at the PS.
35. PW-30 Jagbir was Head Constable in the Delhi Police at the relevant time. He took three pullandas sealed with the seal , impression of which he did not remember, one sample seal and one blood gauge to FSL Rohini vide RC No.28/21 and 29/21. He also took one wooden box sealed with the seal, impression of which he did not remember to FSL Rohini. So long as pullandas remained with him, the same were not tampered with.
36. PW-31 HC Surender Kumar MHC(M) proved copy of entry No. 4400 dated 26.12.2010 regarding deposit of property in malkhana as Ex.PW31/A. Copies of road certificates as Ex.PW31/B to D. PW-33 HC Sri Pal made a statement similar to that of PW-31. In cross examination by counsel for accused Sunil he stated that if SHO or any other police official see the property in malkhana, no entry is made in malkhana register. He volunteered that entry is made in roznamcha register and in this case the SHO or any other official did not see the property in malkhana.
37. PW-32 Inspector Deepak Sharma is the IO. He proved rukka as Ex.PW32/A, site plan as Ex.PW32/B and about various other steps taken by him in the investigation. He identified mobile phone make LAVA having dual SIM and two IMEI numbers as Ex.P6-A. He proved application for collecting ownership and call details of different phones as Ex.PW32/C, D, D1, E, F and G. He proved reports of FSL as Ex.PW32/H to K. He identified mobile phone make Sony Erricson as Ex.P1-A (already exhibited as Ex.P1 duplicate).
In cross examination by counsel for accused Sunil, he denied that he recorded statements of mother, sister and other relatives of deceased on 30.12.2010 or that he was deliberately concealing the same. He denied that he had unofficially obtained the call details from various service providers much before he officially wrote to them. He denied that he could not connect the conversation between two accused on the basis of alleged unofficial details or that later on he got the call details manipulated. IMEI number has been mentioned as Nil on seizure memo Ex.PW6/A as the same was not visible. He did not mention the fact that same was not visible, on seizure memo Ex.PW6/A. He did not try to find out the same by putting a battery and applying the code as he was not aware of that procedure by that time. He did not send mobile phone Ex.P4 seized vide memo Ex.PW6/A to FSL for knowing the IMEI number or SIM number. He denied that he had been taking the said mobile phone from MHC(M) during investigation. Even on receipt of call details he did not come to know about IMEI number of the said phone. On seeing the call details he admitted that same contains IMEI number. He denied that after coming to know about IMEI number, he tampered with the same on the mobile phone and got the same inserted on telephone set. He did not send the bunch of hairs seized from the spot for comparison with hairs of any of the accused. He explained he did not do so as there were no chances of hair of the accused being found below pillow. He volunteered that the same simply shows struggle. He did not send empty liquor bottle for chemical analysis. He explained that he did not send the empty liquor bottle to FSL as the same was not having any finger prints and no purpose could have been served. He did not send the empty liquor bottle to FSL for finding out whether it contained finger prints or spurious liquor. He denied that he has manipulated false disclosure by Shobha to Geeta and other relatives. He denied that in investigation accused Shobha had thrown doubt on Geeta. No public person was present in the PS at the time of interrogation of accused Sunil Malik. There is overwriting in the name of Anil Kumar/ witness on disclosure of Sunil which is Ex.PW29/E. Initially he intended to write his name but by mistake he recorded some other name. There is overwriting in the designation and belt No. of said witness as constable. He did not take specimen writing and signature of Shobha for comparing with visitor register entry of hotel. He did not obtain specimen writing and signature of accused Sunil to ascertain that signature or handwriting on application for SIM was of Sunil.
In cross examination by counsel for accused Shobha, he stated that he did not give any notice u/S 91 CrPC to the authorities of Toll plaza to produce record of payment regarding vehicle of Aman. He denied that he did not try to do so as said vehicle never crossed toll plaza. He did not know if any spiderman box is readily available in market with which desired/fake IMEI number can be installed/uploaded on any mobile instrument.
38. After completion of prosecution evidence, statements of accused Shobha and Sunil u/S 313 CrPC. were recorded separately. In her statement accused Shobha denied that on 25.12.2010 at about 12.30 AM when PW-2 returned, she was accompanied by her fiancée and cousins who wanted to come upstairs but she stopped them. She denied that she told that Shiv was sleeping and asked them not to go upstairs in his room. She denied that at about 2.45 AM she came outside her room and unexpectedly saw PW-2 in the drawing room on which a shock appeared at her face. She denied that she was insisting for not taking Shiv to Balaji hospital or was asking for calling a doctor at home. She denied that police recorded her statement in hospital on 26.12.2010. She denied having told that Shiv woke up at 6.30 AM or was feeling cold or she gave another blanket. In fact she had not slept with Shiv in his bed room and had slept on the diwan. She denied having made extra judicial confession before PW-2 or her Chachi Kiran. After kriya ceremony of Shiv on 28.12.2010, her mother-in- law and Geeta asked her to sign certain papers typed on stamp paper. Her brother, parents and relatives told her that the same were regarding giving up all rights in the properties after the death of Shiv. On 29.12.2010 in PS she was again asked to sign the papers and was threatened that in case she would not sign the papers, she would be falsely implicated for death of her husband. She denied that PW-2 found mobile phone make Sony Erricson or that she gave bag to the wife of PW-6. She denied that PW-7 handed over the said bag to police. She denied that PW-13 Shyama Devi saw marks of scratches near both sides of nose of Shivnath and impression of bleeding from nose or her telling that Shivnath had fallen from stairs. She never used mobile with number 8091497835. She expressed ignorance about other formalities completed by the police during investigation. According to her, her false implication appeared to be brain child of Geeta and her fiancée Sachin who had stood to gain properties worth over Rs.4 Crores after the death of her husband and her false implication in the present case. PWs are interested witnesses and have deposed falsely. She opted to lead D.E. She always considered Geeta as her younger sister and was holding a secret of her life pertaining to her affair with one Prince in 2006. She did not tell the said fact to her husband or mother-in-law but Geeta was always apprehensive that she could disclose the said fact after her marriage. She was already doubting that Geeta and her fiancée played some role in the death of Shiv specifically after she observed that Geeta was not sad about death of her brother. She repeated the plea of taking loan for marriage of PW-2 and added that loan could have very well been returned, had the marriage of Geeta been done in simple manner instead of lavish manner in expensive Silver Oak farm house. PW-13 used to remain annoyed with her as she could not deliver a child for 10 years. Her mother-in-law or Geeta withdrew amount against her ATM card after taking the password of her ATM card from her personal belongings in the house. Spiderman box is readily available in market with which desired/fake IMEI number can be installed/uploaded on any instrument and the same has been used by the IO in the present case. No entries were made by her in the hotel record.
39. Accused Sunil Malik denied his involvement. According to him Dheeraj Kumar is not his associate. He has not come to Delhi with said Dheeraj Kumar. He did not apply for obtaining SIM card of phone number 8091497835. On 31.12.2010 at about 11.00 AM police had taken him from his shop to Police Post Nahan. Thereafter Sh. V.C.Jain, Advocate came and met the officials of Delhi Police to enquire about his being taken into custody. The police disclosed that he was required for enquiry but did not disclose the details. He denied having made disclosure Ex.PW29/E and Ex.PW29/F. He pleaded innocence and opted to lead DE.
40. Accused Shobha examined two witnesses in defence. D1W1 Aseem Kumar Tirkey, Asstt. Director/ Department of Telecom, Ministry of Communication & IT produced copy of circular dated 27.04.2009 and 03.09.2009 issued by Department of Telecom which are Ex.D1W1/A and B.
41. D1W2 C.K.Pathak, Vice President (Regulatory and Corporate Affairs) in AB Mobile Standards Alliance India Pvt. Ltd. deposed that his company was authorized reporting body of Global System For Mobile Communication Association to allocate IMEI and MEID numbers to GSM and CDMA mobile devices in India. There are four companies across the world handling the allocation of IMEI numbers globally. His company was exclusively handling allocation of IMEI numbers in South Asia. During 2008 all types of IMEI number including fake, null, without IMEI handset were operational in India. The same was threat to security and then Govt. of India directed that only those IMEI numbers which are genuine and entered in database managed by GSMA would remain operational. Some customers not having genuine IMEI numbers made a protest and Govt. issued instruction authorizing his company to implant genuine IMEI number on those handsets. For that nearly 1600 centers were set up across the country which implanted new genuine IMEI numbers with the help of device available in market. More than one Lac such IMEI numbers were implanted. The amnesty programme was open till 30.11.2009 as per letter copy of which is Ex.D1W2/B. IMEI number in any set can be changed with the help of software of relevant device.
In cross examination by Ld. Addl.PP, he stated that IMEI number taken out by him from the phone of Addl.PP was genuine. The same was registered in 2007. He could not tell since when the IMEI number on instrument of NOKIA 3110 C which is case property of the present case was on the above set. If IMEI number of one set is implanted on other set his company would not be able to detect the change of set. They have received 30,000/- to 40,000/- handset seized by the police in which cloned IMEI numbers have been implanted. Same IMEI number can be used in more than one set of same make. Process of implanting cloned IMEI number is in practice since 2008 approximately. The software used for providing IMEI number is available on net and can be downloaded by any dealer. He could not tell whether IMEI number of this case has been changed or not. To his knowledge none else can also tell this fact.
42. In his defence accused Sunil examined two witnesses. D2W1 Sh. V.C.Jain, Advocate deposed about his visit to Police Post Nahan on 31.12.2010 to ascertain about custody of accused Sunil. D2W2 Virender is the salesman of the shop of accused. He stated that on 31.12.2010 at about noon time police came to the shop and took away Sunil Malik to Police Post Nahan. At that time accused took mobile phone alongwith him. After that police did not come to the shop of Sunil at any time. Dalip was also working at the medical store who had left the service in July/August, 2010 and went to Ghaziabad. He obtained mobile no.8091497835. In cross examination by Ld.Addl.PP he denied that he never worked at the medical store of Sunil Malik or that police did not take said accused in his presence on 31.12.2010.
43. I have gone through the material on record and heard the arguments at length. I have also perused the written arguments filed by counsels for both accused.
44. As per post mortem report the cause of death was asphyxia consequent to obstruction of airways by combined effect of manual strangulation of neck and smothering. All injuries were antemortem and fresh in duration. The same establishes one fact that death was homicidal and not natural. The only question which remains to be decided is as to who caused the said death.
45. For that Ld.Addl.PP submitted that extra judicial confession by accused Shobha to PW-2 Geeta and PW-3 Kiran is one of the strongest arm of prosecution. Motive of getting rid of Shivnath to clear way for marriage of two accused furnishes strength to the case of prosecution. The same coupled with conduct of the accused Shobha in telling her mother-in-law about non awakening of deceased, stopping fiancée and cousins of Geeta from going upstairs lends support to the case of prosecution. The third factor is the fact of accused Shobha being last seen in the company of deceased, while sleeping together. In these circumstances it was for accused Shobha to explain when and how Shivnath died. Production of phone Ex.P6 by accused Shobha from almirah of her bedroom and handing over of phone by Shobha to Ekta and production thereof by Ekta to police lends support to the case of prosecution. Location of phone of accused Sunil in Delhi is yet another corroborative factor. Entries of hotel establishes that accused Sunil stayed there. False defences that Shivnath was ill, suffered loss in business, love between sister of the deceased and her fiancée, death having taken place due to suffocation complete the chain of circumstances. Existence of scratch and bleeding marks near the nose of deceased add to the case of prosecution.
46. Ld. Addl.PP relied upon State of U.P Vs M.K.Anthony AIR 1985 SC 48 in which conviction of an accused for murder of his wife on the basis of extra judicial confession was held proper. In Para 15 it was held that there is neither any rule of law nor of prudence that evidence furnished by extra judicial confession cannot be relied upon unless corroborated by some other credible evidence.
47. Ld. Addl.PP also relied upon Raj Kumar Prasad Tamarkar Vs State of Bihar 2007(1) AD Criminal 308 SC in which it was held that once the prosecution has been able to show that at the relevant time the room and terrace were in exclusive occupation of the couple, the burden of proof lay upon the accused to show under what circumstances death was caused to his wife. The onus was on him.
48. Ld.Addl.PP also relied upon Manoj & Anr. Vs State 2010(3)JCC 1767 in which our own Hon'ble High Court held that contradiction and improvement in the testimony of prosecution witnesses cannot be fatal to the prosecution case when it is not found to modulate his previous statement to suit the case of the prosecution. His differently narrating the same incident on two occasions can be attributed to his poor vocabulary and his mental condition at the time of crime. While deposing in Court after seven months, his low literary level and imperfect recollection lead him to speak differently.
49. On the other hand counsels for accused persons urged that there is no direct evidence in the case in hand. The entire case is based upon circumstantial evidence and law regarding circumstantial evidence is that conviction on circumstantial evidence can be possible only when incriminating facts are incompatible with innocence. For this reliance can be placed on Bantu Vs State of UP 2009(1) Apex Decision Crl.SC 175. The said proposition is undisputable but that does not mean that in no case conviction can be based on circumstantial evidence.
50. The counsel for accused Shobha forcefully argued that no one would confide with a person from whom he can have apprehension of being put in danger. According to him accused would confide with someone who is his/her well wisher, in whom he can repose confidence that said person would not reveal the same to the third person. Viewed from that angle, it is impossible to believe that Shobha did not make a confession before her parents and brother during the four days they were with her till Uthala. It cannot be believed that she made a sudden confession before her nanad Geeta who was a highly risky person as she had lost her brother. According to him the possibility of chachi being present at the time of alleged confession by Shobha to Geeta are bleak as all relatives would leave after Uthala is over.
51. Counsel for accused relied upon Balvinder Singh Vs State of Punjab 1996 SC 607 to make out that extra judicial confession by its very nature is a weak type of evidence.
52. In 2003(6) Apex Decision SC 428 State of Rajasthan Vs Rajaram it was held that extra judicial confession can be sole basis of conviction. In Pakkirisamy Vs State of Tamil Nadu 1998 Cri.L.J.89 it was held that extra judicial confession is like any other evidence. In Kulvinder Singh Vs State of Haryana 2011(5)SCC 258 and B.A. Umesh Vs Registrar 2011(3)SCC 85 it was held that extra judicial confession can be accepted if it passes test of credibility.
53. I have pondered over the arguments and find myself unable to persuade with the same. There is no hard and fast rule as to before whom a person would admit his guilt. A man may act differently if he is not a hardened criminal. His conscious may prick him to tell truth. In taking this view I am fortified by H.P. Administration Vs Om Prakash AIR 1972 SC 975 where in Para no.17 it was held as under:
" Where a person who is not a hardened criminal is burdened with the guilt of a gruesome crime is confronted with a tell tale finding the possibility of his making a clean brest of what is weighing heavily on him cannot be ruled out. It is difficult to generalise as to what a man may or may not do after committing a ghastly murder nor can there be an infallible test to determine the course of human reaction, conduct or behavior in a given situation which might manifest itself in various ways."
54. Viewed in the above light, I feel that case of the prosecution that Shobha made extra judicial confession before Geeta is reliable. Shobha herself has stated in her statement u/S 313 CrPC that she used to treat Geeta as her younger sister. Thus she had occasion to repose confidence in Geeta. Merely because Geeta revealed it to the police does not cause any dent.
55. Regarding presence of Kiran Devi at the time of alleged confession by Shobha to Geeta it may be observed that she was not an ordinary relative. She is a close relative being chichi. She was living in neighbourhood just one gali behind the house of the deceased. Thus her chances of visiting even after Uthala are not abnormal. One has a tendency to make efforts to console the family, particularly in the case of a shocking death like the present one where a young person of about 32 years has been murdered.
56. The counsel for accused Shobha stressed that statements of relatives need to be scrutinized with caution. He emphasized on Sharad Birdi Chand Vs State of Maharashtra AIR 1984 SC 1622. In particular he relied upon para 48 of the judgment in which it has been held as below:-
" In view of the close relationship and affection in a person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to have told. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witness in order to see that the offender is punished. This is human psychology and no one can help it."
57. The arguments advanced by the counsel for the accused omits to take notice of the fact that there is a difference between related witness and interested witness. Every related witness is not an interested witness. Interested witness is one who has some interest in seeing the accused convicted or who has some enmity against the accused. In Chander Mohan Vs State (Delhi Admn.) 2001(4) Apex Decision Delhi 29 Division Bench , Bharosi & Ors. Vs State of M.P 2002(7) judgment today 25, State Vs Bal Kishan @ Bali 130(2006) DLT 242 Division Bench, related witness was relied. In State of Punjab Vs Karnail Singh 2003(6) Apex Decision SC 407 close relative was held to be not a partisan witness.
58. Recently Division Bench of our own Hon'ble High Court in case titled as Karamvir Vs. State 2012 VII AD Delhi 262 held that being son of victim, he was interested to bring real culprit to book. Thus conviction based upon testimony of a son of victim was upheld.
59. The argument of counsel for the accused misses to note that accused Shobha was the last person in company of the deceased. It is for her to explain how Shivnath had died. In Milan Singh Vs State 2012 IX AD Delhi 37 Division Bench of our own Hon'ble High Court held that where gap between point of time when the accused and the deceased were last seen alive and deceased was found dead is so small that possibility of any person other than the accused being author of crime becomes impossible.
60. In the case of Babu Vs Babu (2003)7SCC, Hon'ble Supreme Court observed:-
" The second important circumstantial evidence is that the accused and the deceased were last seen together. To put it tersely both of them slept together by retiring to the room that night. Last seen together in legal parlance ordinarily refers to the last seen together in the street, at a public place or at any place frequented by the publice. But here, the last seen together is much more than that. The last seen together here is sleeping together inside the bolted room."
61. The case in hand squarely falls in the ratio of the above case.
62. The accused had tried to put forward that she was not sleeping in the room of deceased. Rather she was sleeping on a diwan in the drawing room which is diagonally opposite to the bed room. First of all it does not appeal to mind that a wife would sleep separately from her husband without there being any differences amongst them. Secondly this fact has not been suggested to PW-2, PW-3 and PW-13 in their cross examination. This is a plea coming for the first time in statement u/S 313 CrPC. This provides missing link, if any. In this regard reliance can be placed on State of Maharashtra Vs Suresh 1999(9) J.T 513.
63. In Md. Mahiruddin & Ors. Vs State of Bihar 1998(5) Apex Decision SC 354 it was held that " false defence fills up chain of circumstance and is sufficient for conviction.
64. The other false defence tried to be set up by accused person is that Shobha has been implicated to deprive her of property of her husband. This defence is after thought as it was not put in cross examination of PWs. Moreover, there was no property in name of her husband. Flat No.B-2/162, Paschim Vihar is in the name of mother of deceased. It is true that same was purchased from sale proceeds of earlier H.No.B2/224, Paschim Vihar, Delhi. But it has not come on record in whose name said house was. It cannot be presumed that said house was in name of father of deceased and so present flat became ancestral property.
65. In fact all possible defences have been put forward. Accused have tried to explore that Geeta was involved in murder and that is why she cooked confession by Shobha before her. Strictly speaking it demolishes defence that none suspected any foul play in death of Shivnath. Rather it supports case of prosecution that death was result of intentional act of someone.
66. Reason for suspecting Geeta was that she was not sad on death of her brother. This is only apprehension. One cannot remain tense all the twenty four hours. Another reason to suspect Geeta is that her marriage was performed on date already fixed and that too lavishly. The same has been explained suitably by mother as PW13 that in their family marriage is not postponed after Ardas of Guru, number of invitees were reduced. Simply performing marriage in Farm house does not make it lavish. Geeta was only daughter of PW-13 who could not have taken risk of social stigma that marriage of Geeta was just an empty formality as her brother had died. Delay in marriage might have resulted in break of marriage already fixed.
67. Third reason for suspecting Geeta is that she never remained out of house late in night before 25.12.2010. But there is no evidence to show that deceased had exchange of hot words with Geeta on this issue. His mere asking Geeta on phone to come early is simply piece of advice. The suspicion on that account is unfounded.
68. Appreciation of evidence was beautifully explained by Hon'ble Supreme Court in State of UP Vs M.K.Anthony AIR 1985 SC 48 wherein guidelines have been laid down as to how evidence should be appraised:
" Held, while appreciating the evidence of a witness the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, draw backs and infirmities, pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matter not touching the core of the case, hypertechnical approach by taking sentence torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of evidence as a whole. In the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor or evidence given by the witness, the appellate court which had not this benefit will attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention, and reproduction differ with individuals. Cross- examination is an unequal dual between the rustic and refined lawyer."
In Bharuda Broginbhai Harjibhai Vs State of Gujarat AIR 1983 S.C. 753 it has been held that over much importance cannot be attached to minor discrepancies and the reasons are obvious.
1. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
2. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. This mental faculties, therefore, cannot be expected to be attuned to absorb the details.
3. The powers or observations differ from person to person, what one may notice, another may not. An object or movement might emboss image of one person's mind, whereas it might go unnoticed on the part of another.
4. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
5. In regard to exact time of an incident or the time duration of an occurrence, usually, people make their estimates by guess work on spur of moment at the time of interrogation and one cannot expect people make very precise or reliable estimates in such matters. Again, it depends upon the time-sense of individuals which varies from person to person.
6. Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
7. A witness though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details of imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological moment."
"Discrepancies which do not go the root of the matter and shake the basic version of the witnesses, therefore, cannot be annexed with undue importance. More so, when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses."
In Boys Ganganna and another Vs State of Andhra Pradesh AIR 1976 Supreme Court page 164 it was held:
"Minor contradictions are bound to appear when ignorant and illiterate women are giving evidence. Even in case of trained and educated person, memory sometimes plays false and this would be much more so in the case of ignorant rustic women, it must also be remembered that the evidence given by a witness would very much depend upon his power of observations and it is possible that some aspects of an incident may not be witnessed by another though both are present at the scene of occurrence, it would not, therefore, be right to reject the testimony of such witnesses merely on the basis of minor contradictions."
In 1985 SCC (Cri.) 156 it has been laid down as under:
"Minor discrepancies in the version of an injured would not justify rejection of his entire testimony when presence at the place and time of occurrence are not in dispute." In State of Rajasthan Vs Smt. Kalkaji Anr. AIR 1981 SC 1390 -
while appreciating evidence in a murder case there were discrepancies in the evidence and distinction was made between normal and material discrepancies, it was held:
"In the deposition of witnesses there are always normal discrepancies, however, honest and truthful they may be. These discrepancies are due to normal errors of normal observations, normal errors of memory due to lapse of time, due to mental disposition such a shock and horror at the time of occurrence and like. Material discrepancies are those which are not normal, and not expected of normal person."
69. The counsel for accused referred to various omissions on the part of IO such as failure to send the empty liquor bottle to FSL, the bunch of hairs to FSL, taking of specimen writing of accused and sending them to FSL for comparison with the entries in hotel register, to send the mobile phone to FSL to ascertain their IMEI number and SIM number. By now the law is well settled that irregularities due to remissness of IO should not weigh with the Court. In this regard reference with advantage may be made to decision of Hon'ble Supreme Court in Kashinath Mundal Vs State of West Bengal 2012 Vol.VII Apex Decision SC 365.
70. The counsel for accused emphasized that according to post- mortem report death took place around 2.30 in the night. If that is so, the story put forward by the prosecution that Shivnath woke up at 6.30 AM, complained of cold, Shobha put a blanket on him is falsified. In this regard he relied upon State of Andhra Pradesh Vs Punati Ramulu 1994(3) Chandigarh Crl.Cases 6 SC where it was held that if the investigation is tainted, the entire case falls. He also relied upon Ram Padarath Gami Vs State 2012 III AD Crl.38 where our own Hon'ble High Court held that where in post-mortem time of death differs with prosecution case, the prosecution case becomes suspect. For same preposition reliance was placed by counsel for accused on Tanviben Panbai Kumar Divetia Vs State of Gujarat AIR 1997 SC 2193.
71. First of all opinion about time of death in the post-mortem report is after all an opinion and is always subject to permissible variations and fluctuations. Moreover, the maxim one lie-whole lie generally does not apply to criminal case as per Division Bench decision of our own Hon'ble High Court in Gulshan Kumar Vs State 1993(2) Chandigarh Cril.Cases 8. The same is not applicable in India as per Smt. Shakila Abdul Gafar Khan Vs Vasant Raghunath Dhoble & Anr. 2003(8) Apex Decision SC 203. Not only this as per Ugar Ahir & Ors. Vs The State of Bihar AIR 1965 SC 277, one false is not sufficient to make other part also false.
72. Counsel for accused Shobha highlighted certain so called improvements in the statement of PW-13. PW-13 deposed that she gave a statement to the police on 26.12.2010 but no such statement is available on record. She did not mention to the police that she found the body of Shiv to be stiff. According to her none objected to Shiv being removed to Balaji Hospital whereas according to PW-2 Geeta, accused Shobha objected to the same. This is a contradiction according to him. PW-13 deposed that she did not give any statement after arrest of accused which is contrary to the record. PW-13 admitted that Geeta did not tell anything to her about the incidents which took place in the night between 25.12.2010 and 26.12.2010, when she woke up.
73. After giving my sincere thought to the argument I do not find any force in the aforesaid arguments. Marginal variations over statement u/S 161 CrPC cannot be dubbed as improvement with sinister motive. Statement of the informant basically remains same. This is so as per Chandershekhar Suresh Chandra Bhatt & Ors. Vs State of Maharashtra 2000(9) J.T 598. As per Alamgir Vs State (NCT of Delhi) AIR 2003 Supreme Court 282 omission of fact u/S 161 CrPC is not to discard statement in Court. As per A. Shankar Vs State of Karnataka III (2011) DLT Crl. 29 SC exaggeration or details are not omission or contradiction.
74. For the same reason the argument that according to PW-2 deceased had a suspicion on accused Shobha, is improvement over her statement u/S 161 CrPC deserves to be rejected.
75. Counsel for the accused took pains to argue that according to IO he made enquiries from Anand Longani whether he wanted to go upstairs with Geeta and whether Shobha stopped him, as deposed by PW-13. But he did not record the statement of Anand Longani. Argument does not appeal to mind. Prosecution is not to produce each and every witness as per Raja Vs State 1997(2) Apex Decision Delhi 186. At the most it can be a lapse on the part of IO and I have already held above that mere lapse on the part of IO is not sufficient to discard the case of prosecution.
76. According to counsel for the accused the version regarding visiting of Vaishno Devi alongwith Kewal/saala of the deceased despite suspicion on wife/accused Shobha is unnatural. I fail to understand as to what the counsel for the accused wants to make out of it. Visit to Vaishno Devi, whether alone or alongwith Kewal are not the issues in the present case and have no bearing on the outcome of the case.
77. The counsel for accused stressed much that according to PW-2 and PW-3 when accused Shobha made extra judicial confession, PW-17 was also present. But PW-17 did not say so. According to said witness police was already there when he reached and police was making enquiry from the accused. So question of PW-17 being present at the time of extra judicial confession by accused before PW-2 and PW-3 is not established. Again I feel that even if statement of PW-17 to that extent is excluded, it does not make any difference.
78. The counsel for accused stressed certain contradictions regarding recovery of mobile phone from PW Ekta. According to PW-17 it was night time, they went to first floor, the house of Ekta was in same row. But according to PW-29 they reached at 9.30 AM and stayed there for 5 hours. No relative was present, he gave house number as 168 instead of 167. According to PW-32 he did not enter the house of Ekta, she herself came down and her husband produced the bag containing mobile phone. He stayed for 20-25 minutes only. These are minor contradictions.
79. The counsel for accused emphasized that the IO did not make any effort to trace the charger of the mobile phone. He did not explain how he found the SIM number of the said mobile phone when the same was in switched of mode. The IMEI number of the phone has been planted by the IO. According to PW-19 the roaming details are available with Aircel but according to witness from Aircel as PW-20, there are no voice calls. Again the same are insignificant.
80. Counsel for accused Shobha did not miss to argue that hotel entry was not sent to FSL for finding out in whose handwriting the same was. The Manager of the hotel turned hostile as he deposed that he could not identify who was brought by the police to the hotel at the time of seizure of hotel entry. I am not impressed by the argument. It is nothing but sluggishness on the part of IO.
81. The argument that witness from BSNL was dropped by the prosecution is an attempt to kick dust in the air. Prosecution can drop any witness at any time. If the accused thought that it was a material witness, accused could have summoned him in defence. Simply because the counsel read SMS to PW-2 from mobile phone is not conclusive to hold that any SMS was received on that phone or was replied from that phone.
82. The fact that PW-2 or PW-13 made withdrawal of Rs.11,000/- from ATM of accused Shobha, after arrest of Shobha is inapt to show that the accused persons are greedy. The amount is so less that it cannot result in any inference being drawn. The plea of family members of deceased putting papers regarding relinquishment of rights of Shobha in the property of her husband, in the house and by the IO in PS is all afterthought. No such suggestion was put to the PWs during their cross examination. This has come for the first time in the statement of accused.
83. One of the bone of contention of counsel for accused Sunil Malik is that none from the family laid suspicion on anyone even after post-mortem report. That makes the subsequent frequent enquiries from Shobha and her making extra judicial confession, doubtful. The arguments have no merit. Shobha was not an enemy or stranger. She was close relative being wife of deceased. One is not supposed to suspect such close relative in the first instance. But with passage of time and as and as things become cool, one tries to find out after all how such serious act happened. So conduct of family members making enquiry from Shobha was quite natural.
84. Counsel for the accused Sunil Malik urged that the call details do not show the contents of conversation. It cannot be presumed that the same were regarding love affair of the two accused. Both the accused belong to same place and there was nothing wrong in their talking on phone. To some extent he may be correct but having so extensive talk is not a positive sign. Frequency of talks is alarming.
85. The counsel for accused Sunil Malik argued that call details are not certified as required by Section 65-B Evidence Act. So they are to be excluded as per the decision in Ravi Kant Sharma Vs State 183 (2011) DLT 248. He also banked upon decision in Crl.Appeal No. 927/2008 titled as Brij Kishore and Anr. Vs State decided by our own Hon'ble High Court in 10.05.2010. According to the said judgment, the certificate u/S 65-B Evidence Act has to be issued by a person in whose custody the device in which document was stored in an electronic form, printout was generated. PWs 19, 20 and 25 stated that they have not seen the server in which data was stored. They simply generated the statement from computer. The data related to so many persons is stored in one server and those persons neither have a chance to have access to the server. It is sufficient if they can generate the data with the help of that server. The requirement is that generation of data must be by authorized person. What I have been able to deduce from the above judgment is that such evidence cannot be exhibited when the police officials tender the same by saying that he procured it. In the instant case the persons who generated the same have been examined and the statements have not been proved by the IO alone.
86. Over and above all I may mention that call details are only an additional mode of proving the case. It is not the only way to establish the case. Cases used to be proved when the technology of call details was not there.
87. Counsel for the accused Sunil Malik submitted that PW-13 did not say that her statement was recorded by the IO in the hospital on 26.12.2010 itself but IO proved said statement as Ex.PW26/A. He pointed out that PW-13 admitted that Shobha was not defying her husband. From this he wanted me to hold that Shobha could not have gone to the extent of killing her husband. I am at a loss to appreciate the argument. None knows when the mind of a person could change. It is not necessary that one should be defying from long before.
88. According to him conduct of PW-2 is very strange. She went out of Delhi on 25.12.2010, remained out of house till late in the night, had to be telephonically called by the deceased. Even after reaching the house, she remained busy in talking with her fiancée on telephone for hours in the night despite the fact that she had already remained with him for couple of hours in Gurgaon. This does not have any bearing on the case. It reflects the change of trend over passage of time. The young generation prefers to have his/her own friends rather than elders/family members.
89. Counsel for the accused Sunil Malik submitted that for Section 27 Evidence Act to be invoked, past acts are not relevant. What is to be seen is the fact distinctly recovered in pursuance of the information given by the accused to the police. He relied upon decision starting from Pulukuri Kottaya AIR 1947 Previ Counsel 67 to Aloknath's case 2008(2) SCC Crl. 264 Para 53. In between there was a judgment in Vinod Kumar Vaidh & Anr. Vs. State 1992(2) C. C.Cases 211 DB. The said preposition is undisputable but does not help the accused in the present case.
90. Counsel for the accused also submitted that no public witness was joined at the time of seizure of mobile phone from Ekta or at the time of seizure of mobile phone from the shop of accused Sunil Malik from Nahan, Himachal. It is not that efforts were made to join and the witnesses did not agree. Rather it is a case in which IO did not make any efforts even. I do not find any distinction between the two. When it is a matter of common knowledge that public persons do not want to entangle themselves in police cases or Court cases in the fear of being made to attend the Courts repeatedly, it is not expected from the IO to make the request in futile. Rather that may give an occasion for losing the recovery as in the meantime the accused may make the property to disappear. It was held in Anil Vs State 1996(3) Judgment Today 120 that non compliance of Section 100 CrPC is not to vitiate trial. In AIR 2001 SC 93 Manish Dixit & Ors. Vs State of Rajasthan with Devender K. Sharma Vs State of Rjasthan & State of Rajasthan Vs Sarad Dhakar it was held that when public persons are not willing to join, it is not mandatory to join them. In State, Govt. of NCT of Delhi Vs Sunil & Anr. 2000 (Supplementary 3) J.T 267 it was held that recovery in pursuance of disclosure u/S 27 Evidence Act stands on different footing. No independent witness is required for that. In State of Rajasthan Vs Teja Ram AIR 1999 SC 1776 and M/s Maxim Lightech (P) Ltd. Vs Small Industries Development, Bank of India 2011(5) Apex Decision Delhi 499 it was held that over insistence of witnesses having no relation with victim often results in criminal justice going awry.
91. Anyhow the argument that only evidence against accused Sunil Malik is that of extra judicial confession by co-accused Shobha and the same is not admissible against Sunil Malik atleast, appears to be probable. Confession is admissible against the maker thereof and not against other persons. In this regard counsel for the accused relied upon Sahibe Alam Vs State 2002(3) AD Crl.127 Delhi. For the same purpose he also relied upon Sunil Rai Vs Union Territory 2011(3) Recent Crl.Reporter 636 SC in which it was held that oral extra judicial confession made by an accused cannot be used against co-accused to hold him guilty.
92. Last but not the least argument is that incident is of night between 25.12.2010 and 26.12.2010 whereas the FIR was lodged on 30.12.2010 and there is a delay of 5 days. It is true that delay in FIR gives rise to a suspicion but at the same time explained delay cures the defect. All delays are not fatal. In the instant case delay has been explained. Cause of death came to light on 30.12.2010 when Shobha made extra judicial confession before PW2 and PW3, FIR was lodged immediately after that.
93. The theory that Shobha doubted PW-2 Geeta being guilty demolishes the case of the accused that the death was natural or was on account of suffocation. The argument that doctor conducting post- mortem did not find any signs of finger print on the neck to establish manual strangulation is to be mentioned for being rejected only. There is evidence on record to show that first neck was pressed after putting a cushion. In that event there should be no impression of finger on the neck. It was only when said person did not succeed, that as a last resort the neck was pressed with thumb. That pressure might not be so deep so as to leave an impression of finger.
94. To sum up I find that prosecution has proved its case beyond reasonable doubt against accused Shobha. She is held guilty and convicted u/S 302 IPC. However, evidence against accused Sunil Malik is not sufficient to establish his guilt. Benefit of doubt is given to him and he is acquitted.
ANNOUNCED IN THE OPEN COURT ON 11TH DAY OF DECEMBER, 2012 (O.P.GUPTA) DJ-CUM-ASJ-INCHARGE (WEST) DELHI.
IN THE COURT OF SH. O.P.GUPTA: DISTRICT JUDGE-CUM-
ADDL.SESSIONS JUDGE: INCHARGE (WEST): DELHI
SC NO.16/11
UNIQUE ID NUMBER: 02401R0134072011
STATE VERSUS SHOBHA
W/O LATE SH. SHIVNATH
R/O H.NO.B-2/162,
PASCHIM VIHAR,
DELHI.
FIR NO.: 382/2010
P.S: PASCHIM VIHAR
U/S : 302/34 IPC.
DATE OF CONVICTION : 11.12.2012
ARGUMENTS ON POINT OF SENTENCE : 11.12.2012
DATE OF ORDER : 11.12.2012
ORDER ON SENTENCE:-
1. Accused Shobha has been convicted u/S 302 IPC vide separate judgment passed today by this Court.
2. I have heard on the quantum of sentence. Ld.Addl.PP submitted that it is a gruesome murder in which not a stranger but the wife of the victim has killed him. The offence was pre-meditated and pre-planned. Generally an enemy kills the opponent. But cases of wife killing her husband are rare. The only son of PW-13 has been murdered thereby closing the family tree for all times to come. The accused has no sign of remorse even after the death. She continued participating with the family members and she took all possible defences in trial also. Thus it is a case in which the maximum punishment should be given.
3. On the other hand the counsel for the accused submitted that accused is a lady, she is aged 32 years only, she had no previous involvement. It cannot be said that she is a menace to the society.
4. The only two punishments which can be awarded in Section 302 IPC are:- (1) death sentence or (2) imprisonment for life.
5. Law regarding imposition of death sentence is that it should be awarded in rarest of rare cases. Leading decision in this regard is Bachan Singh Vs State of Punjab AIR 1980 Supreme Court 898. The same was reviewed in Bachittar Singh & Anr. Vs State of Punjab 2002(7)JT 413 and it was held that there should be no death sentence till the convict is a menace, there are no chances of reformation, is a continuous threat to the society. Brutality of the offence is not sufficient to make it rarest of rare as per Subhash Ram Kumar Bind @ Vakil & Anr. Vs State of Maharashtra AIR 2003 SC 269. Very recently the same has been considered by Hon'ble Apex Court in Sangeet & Anr. Vs State of Haryana 2012 XI AD SC 473 where it has been observed that :-
"Aggravating circumstances relate to the crime while mitigating circumstances relate to the criminal. In a sentencing process it's not only the crime that is important but the criminal and his/her circumstances are also equally important."
6. Keeping in view the facts and circumstances of the case and the rival submissions, I find that it is not rarest of rare case. Accordingly, the accused is sentenced to imprisonment for life and fine of Rs.10,000/- in default RI for 6 months. Detention during investigation and trial be set of as provided by Section 428 CrPC. The accused is in custody since 31.12.2010. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 11TH DAY OF DECEMBER, 2012 (O.P.GUPTA) DJ-CUM-ASJ-INCHARGE (WEST) DELHI.