Delhi District Court
State vs . Rajesh Kumar on 19 November, 2019
IN THE COURT OF AJAY GOEL, ADDITIONAL SESSION
JUDGE/SPECIAL JUDGE (NDPS),
DWARKA COURTS, NEW DELHI.
Sessions Case No. 440461/16
State Vs. Rajesh Kumar
S/o Late Sh. Ganga Ram,
R/o Village Chatera, TehshilSayana,
PSKhan pur, Distt. Bulandshahar, UP.
FIR No. : 187/15
Police Station : PALAM VILLAGE
Under : 302 IPC
Sections
Date of Institution of case : 25.06.2015
Date of Assignment to this court : 24.07.2017
at the stage of prosecution evidence
Date of Arguments : 02.11.2019
Date of Decision : 19.11.2019
JUDGMENT:
1. The case of the prosecution is that in the year 2015 accused Rajesh Kumar was residing with his wife Smt. Rekha (since deceased) and children at 2nd Floor of House No. WZ813A, SC No. 440461/16 State Vs. Rajesh Kumar Page 1 /50 Adil Bagh, Village Palam, New Delhi. On 26.03.2015 an information was received at PS Palam Village about having been taken deceased Rekha to DDU Hospital as brought dead and the same was recorded vide DD No. 4A. On receipt of DD No. 4A ASI Baljeet along with Ct. Jitender reached DDU Hospital where the deceased Rekha was found declared brought dead. On the same day SI Rakesh Kumar, Incharge Crime Team had inspected the spot and prepared inspection report and HC Ashok Kumar had taken photographs of the scene of spot. ASI Baljeet filled the death form 25.35, prepared brief facts and recorded the statement of accused Rajesh Kumar and made request for postmortem. On the same day Dr. Naryan Dabas conducted Postmortem on the dead body of the deceased and opined that the cause of death was asphyxia secondary to constriction of neck structure as a result of ligature strangulation. After postmortem the doctor handed over three sealed pullandas along with three sample seals SC No. 440461/16 State Vs. Rajesh Kumar Page 2 /50 to ASI Baljeet who seized the same. On 27.03.2015 ASI recorded statement of Sh. Tek Chand and prepared rukka. ASI Baljeet got registered the present case. After FIR the investigation was assigned to Inspector B.S. Gulia who visited the spot on 27.03.2015 and prepared site plan. On the same day accused Rajesh Kumar was arrested, his personal search was conducted and disclosure statement was recorded. During investigation it revealed that on the night of 25.03.2015 accused Rajesh was sleeping in his room with his wife Rekha (deceased) and his daughter Kumari Hem Lata. Two sons of accused Rajesh and deceased were sleeping outside the room with Sh. Tek Chand, brother of the deceased. It further revealed that accused Rajesh Kumar had committed murder of his wife Smt. Rekha by strangulating her neck. On 27.03.2015 accused Rajesh Kumar was medically examined and his nail wash was taken and the same was seized. On 25.05.2015 Sh. Ramesh Kumar, SC No. 440461/16 State Vs. Rajesh Kumar Page 3 /50 Assistant Draftsman visited the spot at H. No. 813A, Second Floor Adil Bagh, Village Palam and had taken the measurement of the spot and on the basis of the same prepared scaled site plan. The exhibits pertaining to this case were sent to FSL. The report of the FSL was collected. Upon completion of investigation the accused was chargesheeted for the offence u/s 302 IPC.
2. The chargesheet was filed in the court of Ld. M.M. and after compliance of Section 207 Cr.P.C. the case was committed to the court of Sessions being exclusively triable by court of sessions.
Charge against the accused:
3. On 01.12.2015, the charge for the offence under Section 302 IPC was framed against the accused, read over and explained to him to which he pleaded not guilty and claimed trial. Witnesses examined:
4. In order to prove its case, prosecution examined total SC No. 440461/16 State Vs. Rajesh Kumar Page 4 /50 17 witnesses which are as follows:
PW1 HC Rajpal Singh He deposed that on 27.03.2015 he was Duty Officer and registered the present FIR No. 187/15 at about 4.35 pm on the basis of rukka presented by ASI Baljeet Singh. He further deposed that he made his endorsement on the rukka and handed over the copy of FIR and rukka to Inspector B.S. Gulia.
He further deposed that he sent the copies of the same to the Ld. MM of the area and other Senior police officers for intimation through special messenger Ct. Om Prakash. He proved FIR as Ex.PW1/A and endorsement on rukka as Ex.PW1/B and DD No. 13 A which was recorded regarding the recording of FIR as Ex.PW1/C. He also proved certificate u/s 65 B of Indian Evidence Act regarding computerized copy of FIR as Ex.PW1/D. PW2 Sh. Tek Chand. He deposed that deceased Rekha was his elder sister and was residing with her husband accused Rajesh Kumar and her children in a room on 2 nd Floor of H. No. WZ813A, SC No. 440461/16 State Vs. Rajesh Kumar Page 5 /50 Adil Bagh, Village Palam, New Delhi for the last 34 years. He further deposed that in the month of March, 2015, he had come to his sister's house in search of job 7/8 days prior to the incident. He further noticed that some injury over the eye of his sister Rekha and when he asked about the said injury she told him that "Jija Rajesh se Hasi Majak mai hi ghussa lag gaya". He further deposed that on 25.03.2015, he was sitting with his sister and her children and at about 9.30 pm accused Rajesh came and thereafter, his sister Rekha, accused Rajesh and his niece went inside the room for sleeping. He further deposed that his nephew Ketan and Chintu (sons of his sister Rekha) had slept outside the room. He further deposed that in the night at around 12 'O' Clock accused Rajesh had come out of the room and awaken him and stated that his sister Rekha was not able to speak anything. He further deposed that he went inside the room and saw that his sister Rekha was unconscious and thereafter, he had gone to the SC No. 440461/16 State Vs. Rajesh Kumar Page 6 /50 house of Archana, sister of accused Rajesh who was residing in a neighbourhood. He further told that Archana came with him and thereafter, he alongwith Archana and accused Rajesh had taken his sister Rekha to Sarthak Hospital where the doctor examined her and stated that she was not alive. He further deposed that they had taken Rekha to DDU hospital and she was declared dead by the doctors and dead body was sent to mortuary. He further deposed that on next date postmortem of deceased Rekha was got conducted by the police. He further deposed that on 27.03.2015 he had gone the police station Palam Village where he was told by the police that the dead body of his sister had been handed over to Kamal Singh elder brother of accused Rajesh. Since, this witness resiled from his previous statement given to the police, he was cross examined by the Ld. Addl. P.P. and despite that he denied that on 27.03.2015, when he had gone to the police station, a copy of the postmortem report of his sister Rekha was SC No. 440461/16 State Vs. Rajesh Kumar Page 7 /50 given to him by the police. He further denied the suggestion that ASI Baljeet Singh had told him that his sister had not died to any illness instead she was murdered. He further denied the suggestion that he had stated to the police that his sister was murdered by her husband accused Rajesh. He further denied the suggestion that accused Rajesh was a habitual drinker and used to give beatings to his sister. He further denied the suggestion that his nephew Ketan told him that accused used to quarrel with his sister. He further denied the suggestion that his statement was recorded by the police on 27.03.2015. He further denied the suggestion that he had stated to the police that the murder of his sister was committed by her husband accused Rajesh. He further denied the suggestion that he had stated to the police that accused used to quarrel with his sister after drink. He further denied the suggestion that on the day of incident his sister was wearing a Sari. However, he admitted the fact that photographs of SC No. 440461/16 State Vs. Rajesh Kumar Page 8 /50 his sister deceased Rekha was shown to him by a police and he identified her Sari in the said photographs. He further denied the suggestion that accused had committed murder of his sister by strangulating her with the sari which she was wearing on the day of incident.
PW3 Smt. Archana. She deposed that accused Rajesh Kumar was her real younger brother and he was residing with his family in his neighbourhood. She further deposed that on 25.03.2015 in the night at around 11.45 pm /12 O' clock Tek Chand, brother of Rekha, wife of accused Rajesh and one boy namely Chinese @Japani came to her and Tek Chand told to her to accompany him because his sister Rekha was not well and unable to speak. On this she along with Tek Chand came to the room of his brother accused Rajesh and found that Rekha was unconscious and was unable to speak. She further deposed that she along with his brother accused Rajesh and Tek Chand had taken Rekha to SC No. 440461/16 State Vs. Rajesh Kumar Page 9 /50 Sarthak hospital where doctor had told that she was not alive and thereafter, they had taken Rekha to DDU Hospital where she was declared dead. She further deposed that Rekha had already undergone 2/3 surgical operations.
PW4 Master Ketan. He deposed that accused Rajesh is his father and in the month of March 2015, he along with his parents, brother and sister was residing in House No. WZ813A, Adil Bagh, Palam Village, New Delhi. He further deposed that the complainant Sh. Tek Chand is his maternal uncle (Mama) and in the month of March2015, he was also staying with them. He further deposed that on 25.03.2015, in the night, his parents and his sister Km. Hemlata were sleeping in the room and he along with his brother Chintu and maternal uncle Sh. Tek Chand was sleeping outside the said room. He further deposed that at about 11.3011.45 pm his father came outside the room and stated that his mother was not well and on this, he along with his maternal SC No. 440461/16 State Vs. Rajesh Kumar Page 10 /50 uncle (Mama) Sh. Tek Chand went inside the room and found that his mother was lying unconscious. He further deposed that his Mama called his paternal Aunt and thereafter they had taken his mother Smt. Rekha to hospital and after returning from the hospital, his Mama told him that his mother had expired.
This witness was also cross examined by the Ld. Addl. PP and despite that he denied the suggestion that his father accused Rajesh Kumar used to come home in drunken condition at night hours and due to this, there used to be a quarrel between his father and mother and his father used to beat her mother. He further denied the suggestion that on 25.03.2015 his father had come home at around 9.30 pm from his duty, however, in Volunteer he deposed his father had not gone for work/duty. He further denied the suggestion that on 25.03.2015 he had observed that his father had consumed liquor. He further denied the suggestion that on 25.03.2015 in the night, he had woken up on SC No. 440461/16 State Vs. Rajesh Kumar Page 11 /50 hearing the noise. He further denied the suggestion that his statement was recorded by the police. He further denied the suggestion that he had stated the aforesaid facts to the police in his statement.
PW5 Kumari Hemlata. She deposed on the same line as deposed by PW4 Master Ketan.
PW6 Constable Om Prakash. He deposed that on 27.03.2015 he had taken the copies of FIR of the present case to the residence of Ld. Area MM and senior officers of the police as Special Messenger. He further deposed that his statement was recorded by the IO.
PW7 HC Suresh Kumar. He deposed that on 27.03.2015, he had joined the investigation of the present case along with ASI Baljeet Singh and during the same, he along with him reached at mortuary/Department of Forensic Medicine, DDU Hospital where they met Dr. Narain Dabas, Senior Resident, who had handed SC No. 440461/16 State Vs. Rajesh Kumar Page 12 /50 over three sealed parcels sealed with the seal of 'PM DDU H' along with three sample seals having same impression to ASI Baljeet Singh, who had taken the same into police possession vide memo E.xPW7/A. He further deposed that thereafter, they came at PS Palam Village where the said sealed parcels were deposited in the malkhana and thereafter, the complainant of this case Sh. Tek Chand met them in the police station whose statement regarding the incident was recorded by the IO, who got registered the present case on the basis of said tehrir and investigation of the present case was entrusted to Inspector B.S. Gulia. He further deposed that during investigation, he along with IO Inspector B.S. Gulia, ASI Baljeet Singh and complainant Tek Chand reached the place of incident i.e. at a room in House No. WZ813A, 2nd Floor, Adil Bagh, Palam Village, which was inspected by IO and a site plan was prepared by him at the instance of complainant Tek Chand. He further deposed that SC No. 440461/16 State Vs. Rajesh Kumar Page 13 /50 accused Rajesh Kumar was also found present at the spot and on the pointing out of the complainant the accused Rajesh Kumar was apprehended and he was examined/interrogated about the incident in question, the accused Rajesh Kumar was arrested vide memo Ex.PW7/B and his personal search was conducted vide memo Ex.PW7/C and during his interrogation his separate disclosure statement was recorded about the commission of the offence in question which is Ex. PW7/D. He further deposed that accused was got medically examined at DDU Hospital During his medical examination, the concerned doctor had preserved the nail wash of accused Rajesh Kumar and it was kept into a plastic container which was sealed with the seal of CMO, DDU Hospital. He further deposed that accused Rajesh Kumar was brought to PS along with aforesaid sealed parcel, which was handed over to IO who had taken it into police possession vide seizure memo Ex.PW7/E. He further deposed that thereafter, as per the SC No. 440461/16 State Vs. Rajesh Kumar Page 14 /50 instructions of IO, the accused Rajesh Kumar was got lodged into the lockup of PS Dwarka South, Sector9, Dwarka, New Delhi. PW8 Dr. Naryan Dabas. He deposed that on 26.03.2015, he was posted as Senior Resident in Department of Forensic Medicine, DDU Hospital, Hari Nagar, New Delhi and on that day he conducted postmortem on the dead body of deceased Smt. Rekha, Female, aged about 32 years. He proved detailed report of postmortem examination as Ex.PW8/A. PW9 Sh. Ramesh Kumar, Assistant Draughtsman. He deposed that on 25.05.2015, he had visited the spot i.e. H. No. 813A, Second Floor, Adil Bagh, Village Palam, New Delhi alongwith IO Inspector B.S. Gulia and he had taken the measurements of the spot and prepared the scaled site plan Ex.PW9/A which bears my signature at point A on the basis of said rough notes.
PW10 SI Rakesh Kumar. He deposed that on 26.03.2015 on the SC No. 440461/16 State Vs. Rajesh Kumar Page 15 /50 requisition of local police he alongwith other members of the Crime Team including photographer HC Ashok Kumar had reached mortuary of DDU Hospital, where HC Ashok Kumar had taken photographs of the dead body of the deceased from 6 p.m. to 6.30 p.m. Thereafter, they had reached the spot at H. No. WZ813A, Second Floor, Palam, New Delhi. He further deposed that he had conducted the inspection of the spot from 7 pm to 7.30 pm and HC Ashok Kumar had taken photographs of the scene of the spot from different angles. He further deposed that he prepared the detailed report of inspection and the same is Ex.PW10/A. PW11 Sh. Kamal Singh. He deposed that on 26.03.2015, he identified the dead body of his deceased sister Rekha in mortuary and his statement in this regard was recorded by the police vide Ex.PW11/A. PW12 HC Ashok Kumar. He deposed that on 26.03.2015 he was posted at mobile crime team SouthWest District and on that SC No. 440461/16 State Vs. Rajesh Kumar Page 16 /50 day, on the requisition of the local police he along with SI Rakesh Kumar, Incharge Mobile Crime Team reached mortuary DDU Hospital, where he took 7 photographs of the dead body of the deceased from different angels and thereafter they reached the spot at WZ813A, Second Floor, Palam. He further deposed that he took 7 photographs of the scene of the spot from different angles and after developing the prints and the negatives, the photographs and the negatives were handed over to the IO. He proved the photographs of the dead body as Ex.PW12/A1 to Ex.PW12/A7 and photographs of scene of the spot as Ex.PW 12/A8 to Ex.PW12/A14and the negatives thereof as Ex.PW12/B1 to Ex.PW14/B14.
PW13 Ct. Dharambir. He deposed that on 14.05.2015 on the instructions of the IO he had taken four sealed pulandas and samples seals pertaining to this case to FSL Rohini after taking the same from MHC(M) vide RC No. 33/21/15. He further deposed SC No. 440461/16 State Vs. Rajesh Kumar Page 17 /50 that he deposited the pullandas and sample seals in FSL Rohini and obtained the receipt of the FSL which he brought to the police station and handed over the same to MHC(M).
PW14 Sh. Sanjay Kumar. He deposed that he was working as photographer in a studio situated at Tagore Garden, in the name of Sanjay Studio. He further deposed that he took photographs of dead body in mortuary in DDU Hospital on the direction of IO/ASI Baljeet Singh. He further deposed that he handed over the photographs to IO but he cannot tell the date when the same was given. He proved the photographs as Ex.PW14/A and Ex.PW 14/B. PW15 Dr. Rajesh Kohli. He identified the writing and signatures of Dr. Kamal Kant Jain and Dr. Ajay who prepared the MLC of deceased Rekha. He proved the MLC No. 2444/15 dt. 26.03.2015 pertaining to deceased Rekha as Ex.PW15/A which was prepared by Dr. Kamal Kant Jain and Dr. Ajay.
SC No. 440461/16 State Vs. Rajesh Kumar Page 18 /50 PW16 ASI Baljeet. He deposed that on 26.03.2015 on receipt of DD No. 4A, Ex.PW16/A at about 1.30 am, he along with Ct. Jitender Kumar reached DDU Hospital, New Delhi where Smt. Rekha was found declared brought dead vide MLC No. 2444/15. He further deposed that relatives of the deceased met in the hospital and dead body of deceased was got identified. He further deposed that Crime Team was called and the photographs of the dead body of the deceased were taken by the Crime Team. He further deposed that on the basis of the statement of the relatives of the deceased proceeding U/s 174 Cr.P.C. were conducted. He further deposed that he filled Form 25.35 Ex.PW16/B and prepared brief facts of the case as Ex.PW16/C, recorded statement of Sh. Rajesh Kumar regarding identification of the dead body as Ex.PW16/D. He further deposed that he collected the MLC of the deceased and made request for postmortem vide ExPW16/E. He further deposed that after postmortem, the dead SC No. 440461/16 State Vs. Rajesh Kumar Page 19 /50 body of the deceased was given to the relatives of the deceased vide memo Ex.PW16/F. He further deposed that scene of spot was also got inspected by the Crime Team at Room on 2 nd Floor, H. No. WZ813A, Adil Bagh, Palam Village, New Delhi. After postmortem, the doctor handed over him three sealed pullandas which were containing the blood in gauze, finger nail clippings and clothes of the deceased. He further deposed that doctor also handed over three sample seals with the aforesaid pullandas and seized the pullandas and sample seals on 27.03.2015 vide memo Ex.PW7/A. He further deposed that he collected the PM report and recorded the statement of Sh. Tek Chand, brother of the deceased and thereafter prepared rukka as Ex.PW16/G. He further deposed that after FIR, the investigation was assigned to Insp. B.S. Gulia. He further deposed that he joined the investigation with him and during investigation on 27.03.2015 accused Rajesh Kumar was arrested by IO vide arrest memo SC No. 440461/16 State Vs. Rajesh Kumar Page 20 /50 Ex.PW7/B and his personal search was conducted vide memo Ex.PW7/C. He further deposed that accused Rajesh was interrogated and his disclosure statement was recorded vide Ex.PW7/D. PW17 Inspector B.S. Gulia. He deposed that on 27.03.2015 the investigation of the present case was assigned to him and previous IO ASI Baljeet Singh handed over me all the relevant documents prepared by him, PM report and MLC of deceased. He further deposed that on 27.03.2015, he along with ASI Baljeet Singh and complainant Sh. Tek Chand reached the spot at House No. WZ813A, Adil Bagh, Palam Village New Delhi on 2 nd Floor. He further deposed that he prepared site plan Ex.PW17/A at the instance of complainant Sh. Tek Chand. He further deposed that on the same day i.e. 27.03.2015 accused Rajesh was arrested vide arrest memo Ex.PW7/B and his personal search was conducted vide memo Ex.PW7/C. He further deposed that SC No. 440461/16 State Vs. Rajesh Kumar Page 21 /50 accused Rajesh was interrogated and his disclosure statement Ex.PW7/D was recorded in the presence of ASI Baljeet and HC Suresh. He further deposed that accused was got medically examined and his nail wash was taken by the doctor vide MLC Ex.PW17/B. He further deposed that the nail wash of the accused was handed over to him in a sealed container along with sample seal and he seized the same vide Ex.PW7/E. He further deposed that on 25.05.2015, he along with Sh. Ramesh Kumar, Assistant Droughtsman and Sh. Tek chand had visited the spot at WZ813A, Second Floor, Adil Bagh, Village Palam, New Delhi. He further deposed that Sh. Ramesh Kumar had taken the measurement of the spot and after preparing the scaled site plan it was handed over to him and he placed the same on record. He further deposed that since, the sari of the deceased was sealed by the doctor at the time of the postmortem, he had shown the photographs of the deceased with sari to Sh. Tek Chand in which SC No. 440461/16 State Vs. Rajesh Kumar Page 22 /50 he had identified the sari of the deceased. He further deposed that during investigation the exhibits were sent to the FSL. He further deposed that he collected the copies of relevant DD entries. He proved the attested copy of DD No. 33A dt. 27.03.2015 as Ex.PW 17/C. He further deposed that on completion of the investigation chargesheet was filed. The report of FSL was collected and the same is Ex.PW17D and its annexure is Ex.PW17/E.
5. It is pertinent to mention here that PW4 Master Ketan and PW5 Kumari Hemlata who were minor, were examined after putting them preliminary questions so as to satisfy the capacity and intelligence of witnesses and Ld. Predecessor was satisfied that they were not under any pressure and were making the statements voluntarily and they were intelligent enough to understand the questions. So in these circumstances their evidence is relevant and is read accordingly being the competent witnesses.
SC No. 440461/16 State Vs. Rajesh Kumar Page 23 /50
6. Vide order dated 03.09.2019, prosecution evidence was closed on the submissions of Ld. Addl. PP as all the cited witnesses were examined.
Statement U/s 313 Cr.P.C.
7. The statement of accused was recorded u/s 313 Cr.P.C. and the entire evidence was put to him which he denied and pleaded innocence. He denied his involvement in the murder of the deceased. He did not wish to lead any evidence in his defence.
8. I have heard the Addl. PP for the State and Sh. L.S. Gautam, Ld. Counsel for accused. The material on record has been perused.
ARGUMENTS OF PROSECUTION:
9. Ld. Addl. PP for the state argued that on the fateful night the accused was sleeping in the room with his wife deceased SC No. 440461/16 State Vs. Rajesh Kumar Page 24 /50 Rekha and their daughter PW5 Kumari Hemlata and the accused has committed murder of his wife by strangulating her neck. It is further submitted that PW2 Sh. Tek Chand, brother of the deceased was sleeping outside the room along with sons of the deceased and the accused. It is further submitted that the prosecution has successfully proved its case agianst the accused beyond all reasonable doubts by examining the PW2 Sh. Tek Chand, PW3 Smt. Archana, PW4 Master Ketan and PW5 Kumari Hemlata in support of its case to prove that the accused was with the deceased in the room at the time of the commission of the offence and has also proved the cause of death of the deceased by examining the doctor PW8 Dr. Narayan Dabas. It is further submitted that the all subsequent proceedings conducted by the police officials have also been proved. It is further submitted that the accused may kindly held guilty for the commission of the murder of his wife deceased Rekha. SC No. 440461/16 State Vs. Rajesh Kumar Page 25 /50 ARGUMENTS OF DEFENCE:
10. On the other hand, the counsel for the accused argued that disclosure statement of the accused is not admissible as per Section 25 of the Evidence Act. It is further argued that the motive in this case has not been established. It is further submitted that the presence of the husband with his wife in the house is a normal thing and the death of the deceased in this case was a natural death and as such the accused is not liable for the allegations of murder alleged by the prosecution. It is further argued that the chain of circumstances in this case is broken and incomplete and the circumstances of last seen is doubtful and false and the prosecution has failed to prove its case against the accused beyond any reasonable doubt and as such he deserves to be acquitted.
JUDGMENT RELIED UPON BY LD. APP FOR STATE.
i) Satpal Vs. State of Haryana, (2018) 6 SCC 610. SC No. 440461/16 State Vs. Rajesh Kumar Page 26 /50
ii) Kishore Bhadke vs State of Maharashtra in Criminal Appeal No. 467 of 2010 dated 03.01.2017;
iii) Raja @ Rajinder vs State of Haryana in Criminal Appeal No. 486 of 2010 dated 10.04.2015;
iv) In Padala Veera Reddy v. State of A.P. and Ors. AIR 1990 SC 79;
v) 'Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622[(1984) 4 SCC 116.
vi) 'Ramreddy Rajesh Khanna Reddy and Anr. Vs. State of A.P.'' (2006) 10 SCC 17
vii) ''Bhagat Ram Vs. State of Punjab, AIR 1954 SC 621''.
JUDGMENT RELIED UPON BY LD. Defence counsel. 'Nizam Vs. State of Rajasthan and Anter Singh Vs. State of Rajasthan (supra' SC No. 440461/16 State Vs. Rajesh Kumar Page 27 /50 FINDINGS.
11. Before adverting to the facts of the case, I would like to discuss the law with respect to circumstantial evidence when direct evidence is not available. There are numerous judgments on this aspect but I would not like to refer number of judgments. Law is well settled in this regard. Reference can be made to judgment titled Kishore Bhadke vs State of Maharashtra in Criminal Appeal No. 467 of 2010 dated 03.01.2017 with Criminal Appeal No. 854 of 2010 & Criminal Appeal No. 11 of 2015" and "Raja @ Rajinder vs State of Haryana in Criminal Appeal No. 486 of 2010 dated 10.04.2015"
Relevant para of judgment Kishore Bhadke vs State of Maharashtra (based on last seen evidence) "16. The prosecution has also established the vital circumstances of last seen together. The evidence is given by PW11 & PW12 in particular. Their evidence will SC No. 440461/16 State Vs. Rajesh Kumar Page 28 /50 have to be juxtaposed with the evidence of PW15, who has spoken about the telephone call received from Nalini and pursuant to which Raman left his house in her presence with relevant documents/papers. The courts below have accepted her version as truthful and reliable. That evidence cannot be discarded on the basis of some minor discrepancies pointed out during the course of argument. The finding recorded by the two courts below with regard to PW15 about the truthfulness of her version is unexceptional. The evidence of PW11 corroborates the fact that deceased Raman had gone to bank for withdrawing cash amount and then proceeded to the house of Nalini accused No.1. He has deposed that Raman went inside the house of Nalini and saw accused No.2,3,4 and 6 standing near the cattle shed of Nitin Rai. While returning back, he saw accused No.5 SC No. 440461/16 State Vs. Rajesh Kumar Page 29 /50 standing near the water tank.
32. In the case of Keshav (supra), the court held that in the case of circumstantial evidence, conviction can be recorded on the basis of motive. Further, the circumstance of last seen together becomes relevant if the death takes place shortly after accused and deceased were last seen together."
Relevant para of judgment Raja @ Rajinder vs State of Haryana (based on circumstantial evidence).
"9. From the aforesaid, it is clear that the Court is required to evaluate the circumstantial evidence to see that the chain of events have been established clearly and completely to rule out any reasonable likelihood of the innocence of the accused. Needless to say whether the chain is complete or not would depend on the facts SC No. 440461/16 State Vs. Rajesh Kumar Page 30 /50 of each case emanating from the evidence and no universal yardstick should ever be attempted.
10. In the instance case, the circumstances that have been established by the prosecution are that the deceased had accompanied the accusedappellant, being called by him, from his house in the early part of the evening on the date of occurrence. The mother of the deceased, Kalawati, PW11, has deposed in that regard. Thereafter, from the material brought on record, it is clearly revealed that the appellant was seen at the tea stall with the deceased. The said fact has been deposed by Mahender, PW10. Thus, from the aforesaid evidence, two facts are established, namely, the accused and the deceased had left the house of the deceased and were seen taking tea together at the tea stall. It is submitted by the learned counsel for the SC No. 440461/16 State Vs. Rajesh Kumar Page 31 /50 appellant that the last seen theory as advance by the prosecution is not acceptable in as much as the owner of the tea stall has not been examined. When the testimony of the aforesaid two witnesses deserve acceptance and receive corroboration from the other evidence on the record, no adverse inference should be drawn because of nonexamination of the tea stall owner, who, as has been submitted by the learned counsel for the appellant, is a material witness. It is well settled in law that nonexamination of a material witness is not a mathematical formula for discarding the weight of the testimony available on record, if the same is natural, trustworthy and convincing. That apart, he was not such a witness who alone was the competent witness to depose about a fact and his nonexamination would really destroy the version of the prosecution. SC No. 440461/16 State Vs. Rajesh Kumar Page 32 /50
12. Another circumstance that has been proven is about the recovery of knife, bloodstained clothes and the ashes of the burnt blanket. The seizure witnesses Sukha, PW7 and Nanak, PW9 have proven the seizure. It is submitted by the learned counsel for the appellant that police had recorded the confessional statement of the accusedappellant at the police custody and thereafter, as alleged, had recovered certain things which really do not render any assistance to the prosecution, for the confession recorded before the police officer is inadmissible. That apart, the accused had advanced the plea that the articles and the weapon were planted by the investigating agency. To appreciate the said submission in proper perspective, we may profitably reproduce a passage from State of UP v Deoman Upadhyaya, AIR 1960 SC 1125:
SC No. 440461/16 State Vs. Rajesh Kumar Page 33 /50
The expression, 'accused of any offence' in Section 27, as in Section 25, is also descriptive of the person concerned i.e. against a person, who is accused of an offence, Section 27 renders provable certain statements made by him while he was in the custody of a police officer. Section 27 is founded on the principle that even though the evidence relating to confessional or other statements made by a person, while he is in custody of a police officer, is tainted and therefore, inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable in so far as it distinctly relates to the fact thereby discovered. Even though Section 27 is in the form of a provisio to Section 26, the two sections do no necessarily deal with the evidence of the same character. The ban imposed by SC No. 440461/16 State Vs. Rajesh Kumar Page 34 /50 Section 26 is against the proof of confessional statements. Section 27 is concerned with the proof of information whether it amounts to a confession or not, which lead to discovery of facts. By Section 27, even if a fact is deposed to as discovered in consequence of information received, only that much of the information is admissible as distinctly relates to the fact discovered."
12. In Padala Veera Reddy v. State of A.P. and Ors. AIR 1990 SC 79 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests :
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;SC No. 440461/16 State Vs. Rajesh Kumar Page 35 /50
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
13. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 [(1984) 4 SCC 116], it was held that: ''the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are:
(1) the circumstances from which the conclusion of guilt is to be SC No. 440461/16 State Vs. Rajesh Kumar Page 36 /50 drawn should be fully established. The circumstances concerned must or should and not may be established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
14. Reliance is also placed on ''Ramreddy Rajesh Khanna Reddy and Anr. Vs. State of A.P.'' (2006) 10 SCC 17 wherein it was held that:
''It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching SC No. 440461/16 State Vs. Rajesh Kumar Page 37 /50 evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypotheses. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence.''
15. Reliance is further placed on ''Bhagat Ram Vs. State of Punjab, AIR 1954 SC 621'', wherein it was laid down that: ''where the case depends upon the conclusion drawn from circumstances, the cumulative effect of circumstances must be such as to negate the innocence of the accused and bring the offence home beyond any reasonable doubt.''
16. There is no dispute regarding the law laid down in judgment produced by defence. The main factor to be proved on the record is whether circumstantial evidence is such which is unbroken or whether chain is established or not. If SC No. 440461/16 State Vs. Rajesh Kumar Page 38 /50 the chain is found broken at any point of time, the accused is entitled for benefit of doubt but if the chain is unbroken then there is no escape for accused.
17. The argument of Ld. Defence counsel that there is no eye witness in this case who had seen accused committing the murder is devoid of any force. In the present case, the last seen theory has been brought on record by examination of PW2, PW4 and PW5 and other connecting evidence and thereafter, burden of proof was discharged by the prosecution. So even though there is no direct evidence, does not mean that prosecution case suffer for the same.
18. Now I will deal regarding the chain of events and how the prosecution has been able to succeed in proving that same has not been broken coupled with fact that all evidence leads to one conclusion pointing out towards the guilt of the accused and commission of crime by him.
SC No. 440461/16 State Vs. Rajesh Kumar Page 39 /50
19. PW2 Sh. Tek Chand who is one of the material witnesses in this case has specifically and categorically deposed that "Rekha (since deceased) was my elder sister. She was residing with her husband accused Rajesh Kumar and her children in a room on 2 nd Floor, H. No. WZ 813A, Adilbagh, Village Palam, New Delhi for the last 34 years. In the month of March, 2015, I had come to my sister in search of job 7/8 days prior to the incident. I noticed some injury over the eye of my sister Rekha and when I asked about the said injury she told me that "maire jija Rajesh se Hasi Majak mai hi ghussa lag gaya". On 25.03.2015, I was sitting with my sister and her children and at about 9.30 pm accused Rajesh came and thereafter, my sister Rekha, accused Rajesh and my niece went inside the room for sleeping. I SC No. 440461/16 State Vs. Rajesh Kumar Page 40 /50 alongwith my nephew Ketan and Chintu (sons of my sister Rekha) had slept outside the room. In the night at around 12 'O' Clock accused Rajesh had come out of the room and awaken me and stated that my sister Rekha was not well and she was not able to speak anything.
On this, I went inside the room and saw that my sister Rekha was unconscious."
20. Though this witness resiled on some points but in his crossexamination conducted by Ld. APP for the state, he admitted that on the day of incident his sister was wearing a Sari and he identified her Sari in the photographs. This witness was also confronted with his statement Mark PW2/A by Ld. APP for the state wherein "he stated to the police that accused used to quarrel with his sister after drink".
21. So, his deposition clearly shows that he had seen accused and his sister Rekha were sleeping in the room and SC No. 440461/16 State Vs. Rajesh Kumar Page 41 /50 at about 12 'O' Clock accused Rajesh came out from his room and awaken him and told him that his sister was not well and she was not able to speak anything and thereafter, he went inside the room and saw that his sister Rekha was unconscious. Thereafter, he had gone to the house of Archna (sister of accused) and he, Archna and accused Rajesh had taken his sister Rekha to Sarthak Hospital where the doctor declared Rekha dead. He had deposed substantially against accused and he is last seen witness in the case.
22. PW4 Master Ketan and PW5 Kumari Hemlata, though resiled from their previous statements but in their crossexamination conducted by Ld. APP for the state, they admitted the fact that on 25.03.2015, accused Rajesh and deceased Rekha were sleeping in the room and at about 11.30 - 11.45 pm their father came outside from the room SC No. 440461/16 State Vs. Rajesh Kumar Page 42 /50 and stated that their mother was not well and she was lying unconsciously. So from testimonies of these witnesses, the version of PW2 has been corroborated that accused Rajesh was present with his deceased wife at the spot just before the death.
23. Another material witness produced by prosecution is PW8 Dr. Narayan Dabas, Senior Resident who conducted postmortem on the dead body of deceased Rekha. He proved the detailed postmortem report as Ex. PW8/A. In his chief examination, he has given details of external & internal examination of the dead body. This witness further deposed that "The cause of death in this case was asphyxia secondary to constriction of neck structure as a result of ligature strangulation. All injuries were fresh and ante mortem in nature. Time since death was 1215 hours prior to conduct of the postmortem examination". SC No. 440461/16 State Vs. Rajesh Kumar Page 43 /50 From perusal of postmortem report, the manner and cause of death is also clear and this piece of scientific evidence corroborates the case of the prosecution that the death in this case was as a result of ligature strangulation.
24. All the police witnesses have deposed as per their role in the investigation of present case.
25. From the testimonies of PW2 Sh. Tek Chand, PW4 Master Ketan and PW5 Kumari Hemlata it has been established beyond any reasonable doubt that the accused was present in the room with the deceased on the fateful night and nothing has been brought by the accused/defence on record contrary to the same or about any entry of stranger/other person in the room, where the deceased and accused were sleeping. From the testimony of PW8 Dr. Narayan Dabas and the PM report Ex.PW8/A, it has been established that the death of the deceased was as a result of SC No. 440461/16 State Vs. Rajesh Kumar Page 44 /50 ligature strangulation and the time of death given in the PM report matches with the time of incident.
26. The accused has not led any evidence contrary to the case of prosecution. The case law relied upon by the defence i.e. Nizam Vs. State of Rajasthan and Anter Singh Vs. State of Rajasthan (supra) are of no help for the accused as the same are on different footing and are not applicable to the facts of the present case.
27. It is pertinent to mention here that no evidence has been led by accused for his false implication, if any. The doctor who conducted post mortem opined that death was due to strangulation. Estimation of time since death matched with that as deposed by PW2 Sh. Tek Chand, PW4 Master Ketan and PW5 Kumari Hemlata.
28. Ld. APP for the state has relied upon judgment titled as Satpal Vs. State of Haryana, (2018) 6 SCC 610 wherein SC No. 440461/16 State Vs. Rajesh Kumar Page 45 /50 it was held that "Last seen theory is a weak kind of evidence by itself to found conviction upon the same singularly - But when it is coupled with other circumstances such as time when deceased was last seen with accused, and recovery of corpse being in very close proximity of time, accused owes an explanation under S. 106, Evidence Act, with regard to circumstances under which death may have taken place
- If accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available interalia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same - If there be any doubt or break in the link of chain of SC No. 440461/16 State Vs. Rajesh Kumar Page 46 /50 circumstances, benefit of doubt must go to accused - Each case will therefore have to be examined on its own facts for invocation of the doctrine". Above judgment is fully applicable to the facts of the present case.
29. PW2 Tek Chand, PW4 Master Ketan and PW5 Kumari Hemlata are the last seen witnesses of the case as they had seen accused and his wife sleeping in their room and as per their deposition accused came out from the room at about 11.30 to 11.45 pm and told that deceased Rekha was not well and she was unconscious.
30. Arguments of Ld. Counsel for the accused to the effect that if the submission of Ld. APP is accepted then it will mean in any death of spouse occurring in the room during the sleep will be registered as a case of murder, does not hold water because it is not only the death which is relevant but the court has to see the manner, mode and SC No. 440461/16 State Vs. Rajesh Kumar Page 47 /50 cause of that death which relevant coupled with the circumstances. It was upon the accused to explain after initial onus was discharged by the prosecution that how the death occurred because it was his special knowledge and prosecution was required to establish only the last togetherness of both the persons and nothing beyond. In the present matter there are no chances of any person going inside the room and causing death which is otherwise not available on the record, so the arguments of Ld. Defence counsel does not hold water. In the present matter the postmortem report is the clinching evidence which has demolished the case of the accused.
31. So from above discussion, the commission of crime by the accused and causing murder of deceased Rekha stand duly proved. Witnesses have duly supported the case of prosecution and no dent could be created in their SC No. 440461/16 State Vs. Rajesh Kumar Page 48 /50 testimonies. The unbroken chain of sequence of events leading to murder of deceased has been duly proved in this case by prosecution. The circumstances proved by the prosecution taken cumulatively are forming a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else and are incapable of explanation of any other hypothesis than that of the guilt of the accused.
32. Thus, on all counts, guilt of accused has been duly proved beyond any doubt. The accused Rajesh Kumar is held guilty for commission of murder of his wife Rekha and is convicted for the offence punishable under Section 302 IPC.
33. Case property if any be confiscated to State after expiry of period of appeal. Bail bonds and surety bonds are discharged. Copy of judgment be supplied to convict free of costs.
SC No. 440461/16 State Vs. Rajesh Kumar Page 49 /50
34. Be put up for arguments and order on sentence on 20.11.2019.
Pronounced in the open court. (Ajay Goel)
Dated: 19/11/2019 Additional Sessions Judge
Special Judge (NDPS),
Dwarka Courts, New Delhi
Digitally
signed by
AJAY AJAY GOEL
Date:
GOEL 2019.11.21
10:01:23
+0530
SC No. 440461/16 State Vs. Rajesh Kumar Page 50 /50