Delhi District Court
State vs Rahul Kumar on 27 February, 2024
IN THE COURT OF MS. VANDANA JAIN:
ADDL. SESSIONS JUDGE-03/SPECIAL JUDGE
(COMPANIES ACT), DWARKA COURTS, NEW DELHI.
MORE THAN SEVEN YEARS OLD
CNR No.DLSW01-009580-2016
SC No. : 441519/2016
State Vs. : Rahul Kumar
FIR No. : 325/2016
U/s. : 302/34 IPC
P.S. : Palam Village
1. CNR No. of the Case : DLSW01-009580-2016
2. Date of commission of offence : 24.08.2016
3. Date of institution of the case : 24.11.2016
4. Date of committal to Sessions Court : 08.12.2016
5. Name of the complainant : Sh.Banipal Singh
6. Name of accused, parentage &
address : Rahul Kumar
S/o Sh. Rajender Singh
Solanki
R/o Village Rajipur,
Post Arjun Pur,
Novabad,
Distt. Kasganj, U.P.
7. Offences complained off : 302/34 IPC
8. Plea of the accused : Pleaded not guilty
9. Date on which order was reserved : 20.02.2024
10. Final order : Convicted
11. Date of final order : 27.02.2024
SC no.441519/2016 Page No. 1 of 58
State vs. Rahul Kumar
FIR no.325/2016, PS Palam Village
JUDGMENT
Facts
1. The Criminal law machinery was set into motion on receipt of DD no.39A dated 24.08.2016 PS Palam Village which recorded that a call was received at about 5.58 pm from Bhagat Chandra Hospital with respect to one Pooja W/o Rahul R/o RZ-115, Mahavir Enclave, Gali No.3 that she was brought unconscious from the house and has been declared dead. The said DD was marked to ASI Birender who went to the said hospital where he met complainant Sh. Banipal Singh, father of Pooja (hereinafter referred to as deceased) and one Pushpa (landlady of the house in which complainant was residing).
2. The statement of father of the deceased was recorded. He stated that he is running a Tea Shop in Mahavir Enclave and he has three daughters and one son. His elder daughter i.e. deceased was married to Rahul (accused herein) on 14.07.2016 at Kasganj, U.P. After eight days of the marriage, accused Rahul came to their house and stayed there for four days. At that time, he realized that he was trying to come close to his daughter 'R'. Due to a new relationship, he did not say anything to the accused and thereafter on 29.07.2016 complainant alongwith his family came to Mahavir Enclave, Delhi from his native village. His daughter 'R' (youngest daughter of complainant, her identity is withheld as she was minor at that time) used to talk to Rahul very often and he scolded his daughter 'R' in respect to the same. On 07.08.2016 accused Rahul came to his house when deceased was already there and stayed till 19.08.2016. During that time also, SC no.441519/2016 Page No. 2 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village accused used to talk to his daughter 'R' which was disliked and rebuked by deceased on which both of them threatened deceased to kill her. On 23.08.2016 at about 7.00 am, deceased came to his shop and asked about 'R' and also told him that at around 6.30 am when she was sleeping, 'R' tried to strangulate her and kill her and when she objected, 'R' fled away. The complainant called accused Rahul at 9.00 am on his phone and at around 2.00 pm on the same day, Rahul brought back his daughter 'R' at his house. On 24.08.2016 at around 4.00 pm, his son Rajan, aged about 13 years, came to his Tea Shop and told him that accused Rahul was calling him. He went to his house and saw deceased lying on the bed. Her legs were dangling and her neck was hanging. He saw ligature marks on the neck of deceased and some bruises around the neck. Accused Rahul was present there only, however, his daughter 'R' was missing.
3. On the said statement of complainant, FIR was registered under Section 302/34 IPC and investigation of the case was carried out. Crime team was also called at the spot and photographs of scene of crime were clicked. ASI Birender found one gamchha on the bed where the deceased was found lying and the same was also taken into possession and was seized by him. Postmortem of the deceased was conducted on the next day and thereafter the dead body of the deceased was handed over to her father. Accused Rahul was arrested and at his instance, chunni was recovered. The co-accused 'R' was also arrested at the instance of accused Rahul. The subsequent opinion on the ligature material i.e. chunni and gamchha was taken by the IO.
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4. After completion of investigation, chargesheet was filed against accused Rahul. 'R' was declared to be a juvenile and PIR was filed against 'R' (JCL) before Juvenile Justice Board.
5. After compliance of Section 207 CrPC, the case was committed to the Sessions Court.
Charges
6. After committal, the charge under Section 302/34 IPC was framed against the accused Rahul Kumar, to which he pleaded not guilty and claimed trial. Matter was thereafter listed for prosecution evidence.
7. Prosecution cited as many as 17 witnesses out of which 16 witnesses were examined by the prosecution. One PW i.e. Principal Primary School Birachi, who was a witness to prove the date of birth of 'R' (JCL), was dropped at the request of learned Addl. PP for State vide order dated 06.06.2023 as testimony of this witness had no bearing on the trial of accused Rahul.
8. Before coming to rival submissions addressed by ld. counsel for the accused and ld. Addl. PP for the State, let us discuss the testimony of prosecution witnesses.
Prosecution Evidence
9. PW-1 Sh. Banipal is the complainant. He deposed that he was blessed with three daughters and one son. In the year 2016, he was running a tea stall in Gali No.3, Mahavir Enclave. On SC no.441519/2016 Page No. 4 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village 14.07.2016, he had solemnised the marriage of deceased with accused Rahul Kumar in his village at Kasganj, U.P. After four days of the marriage, accused Rahul alongwith his friends came to his house and stayed there for about 4 days and after four days, he sent back Rahul to his house. On 29.07.2016, he alongwith his family members came to Mahavir Enclave, Delhi and on 07.08.2016, accused Rahul came to his house at Mahavir Enclave and stayed there till 19.08.2016 and deceased also stayed with him. After 19.08.2016, Rahul returned back to his home. On 23.08.2016, his younger daughter 'R' went missing from his house. Deceased asked him whether 'R' had returned to home or not to which he replied that 'R' was not at home. At about 9:00 a.m. he made a call to his son-in-law i.e. accused Rahul and at about 2:00 p.m. accused Rahul came to his house with 'R' and at that time, Rahul remained at his house. On the next day i.e. on 24.08.2016, when he was present at his tea shop, his son Rajan came to his shop and he told his son that his son-in-law Rahul was calling him (PW-1) at home. Thereafter, he immediately went to his house and he noticed that deceased was lying on the bed and her neck was hanging on the bed and her legs were dangling. At that time, Rahul was also present there but 'R' was not present. He took deceased to Bhagat Chandra Hospital. Thereafter, police officials reached at the hospital and he returned to PS Palam Village where his statement Ex.PW1/1 was recorded by the police. At about 2:00 p.m., police officials took accused Rahul to the room at Mahavir Enclave where he (PW-1) was residing and accused Rahul took out a chunni beneath the pillow from the said room. The said chunni was taken into possession SC no.441519/2016 Page No. 5 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village by the IO vide seizure memo Ex.PW1/2. He identified the dead body of deceased vide his statement PW1/3 and after postmortem, the dead body of deceased was handed over to him.
10. PW-1 Sh. Banipal was asked certain leading questions by ld. Addl. PP for the State after seeking permission of the Court. PW-1 admitted that deceased was married with accused Rahul. Accused Rahul used to make telephone calls to 'R' and many a times, he (PW-1) threatened 'R' . PW-1 admitted that accused Rahul was coming quite close to 'R' and used to remain with her quite often. Whenever accused Rahul visited his house, he (accused Rahul) was always inclined to talk with 'R' and never left the house and that accused Rahul had threatened to kill his deceased. He could not tell whether on 23.08.2016 accused Rahul took his daughter 'R' with him or not.
11. PW-1 Sh. Banipal was also cross examined by learned Addl. PP for the State wherein he had denied the suggestion that his daughter 'R' and accused Rahul had told him that they both had murdered deceased by pressing her throat with hands. He had voluntarily stated that deceased had told him that 'R' had tried to strangulate her on 23.08.2016. He had admitted it to be correct that when deceased objected, 'R' fled away from the house to save herself. He had also admitted it to be correct at about 9:00 a.m. when he made complaint to Rahul about the incident, then at about 2:00 p.m. Rahul brought 'R' to his house. He found injury mark on the neck and chin of deceased. He admitted that when police came at the spot, IO prepared the site plan Ex.PW1/4 of SC no.441519/2016 Page No. 6 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village the spot. Accused Rahul was arrested in his presence vide arrest memo Ex.PW1/5. He admitted that when he took deceased to Bhagchandra hospital, the concerned doctor after examining her, handed over her ornaments, which were identified by his younger daughter Priyanka and the same were taken into possession by the IO. He had identified the chunni Ex.P1 to be belonging the deceased. PW-1 Sh. Banipal was duly cross examined by ld. counsel for accused Rahul.
12. PW-2 Rajan @ Raja is the brother of the deceased, who was minor at the time of incident and his deposition. (His statement was recorded in Vulnerable Witness Room after satisfying about his competency to be witness in this case.). He had deposed that on 24.08.2016, he came back to his house from his school at 2:00 p.m. and thereafter, he went for tuition at 3:00 p.m. and returned home at 4:00 p.m. Thereafter he parked his cycle and then his jija (brotherinlaw) Rahul, told him to go upstairs and to see what had happened to deceased. Then he went upstairs and found that deceased was lying on bed and she did not react when he shaked her body. He also observed that she was not breathing and had died and thereafter, he went to his father's shop at gali No.3, near Shiv Mandir, Mahavir Enclave. Thereafter his father took his sister to Bhagat Chandra hospital and he also accompanied him. PW2 Rajan @ Raja was duly cross examined by ld. counsel for accused Rahul.
13. PW-3 Smt. Pushpa is the landlady of the house where the complainant alongwith his family including the deceased was SC no.441519/2016 Page No. 7 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village residing on rent. She deposed that she knew accused Rahul Kumar, who was soninlaw (damad) of his tenant Banipal Singh on first floor of her premises alongwith his family consisting his wife, his daughters i.e. deceased, 'R', Chinnay and his son Raja. During the relevant period of incident, Banipal was running his small tea shop at some distance from her residence with the assistance of his other family members. PW3 had further deposed that on 14.07.2016, the marriage of deceased was solemnized at his native place at U.P. and Banipal had gone there with his entire family. After about 1520 days, they came back at Delhi alongwith deceased and her husband Rahul Kumar in the month of Saavan and thereafter, few days before the festival of Rakhi, they celebrated birthday of Raja, son of Banipal and at that time, deceased and her husband were also present and were staying in the tenanted premises of Banipal. One day prior to death of deceased i.e. around 23/24.07.2016, deceased told her that her sister 'R' had strangulated her and on this, she advised her to make complaint to her parents as she (PW3) could not do anything in that matter. Thereafter 'R' left her house on the same day and accused Rahul had brought her back on the same day and parents of 'R' scolded her. She had further deposed that on the date of incident i.e. on 24th or 25th of July, 2016 at about 3:00 p.m. Deceased told her that she (deceased) had prepared snacks/pakora and served to Rahul and she asked deceased about her well being. Thereafter, she went to bazaar and her younger daughterinlaw called her on mobile phone and told that something had happened to deceased and deceased's mother was SC no.441519/2016 Page No. 8 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village crying. Then she came back to house and found that number of persons were gathered. She alongwith Banipal accompanied deceased to the hospital in the same vehicle and the doctor declared her dead. She had further deposed that police had also arrived in the hospital and made some inquiries from them and that accused Rahul had also reached in the hospital subsequently and thereafter, police took all of them to the police station. She had deposed that she returned to home after sometime and in the night, police brought Rahul to the house of Banipal where accused got recovered a piece of cloth and disclosed in her presence that he had used it to strangulate deceased.
14. PW3 Smt. Pushpa was asked certain leading questions by ld. Addl. PP for the State after seeking permission of the Court. PW3 had stated that she had disclosed to the police that 'R' had intimacy with accused Rahul and that deceased had disclosed before her on 23.08.2016 that 'R' had tried to strangulate her. She had disclosed to the police that deceased had died on 24.08.2016 and voluntarily added that deceased died within 40 days of her marriage. PW3 Smt. Pushpa was duly cross examined by ld. counsel for accused Rahul.
15. PW-4 Ms. Priyanka Kumari is the sister of deceased. She had deposed that deceased was married to accused Rahul Kumar about 1½ months before the day of incident i.e. 24.08.2016. On 07.08.2016, on the occasion of birthday of her brother Rajan @ Raja, accused Rahul Kumar was invited by SC no.441519/2016 Page No. 9 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village them and Rahul came to their residence i.e. a rented room. On that day, deceased was already with them at their house and since then accused Rahul was residing with them. On 24.08.2016, in the morning her parents had gone to their shop at gali no.3, Mahavir Enclave and she also went there at about 2:00 p.m. She had deposed that at about 3:45 p.m. when she returned to her house from the shop to attend the nature's call, she saw that the door of their room was bolted by latch from outside without lock and the accused was sitting on the adjoining stairs. When she opened the latch of the room, she found that deceased was lying on the bed and she was not responding. She immediately ran towards their shop to call her parents and she had taken her mother to their room and in the meantime her father also reached there with her brother Rajan @ Raja. Accused Rahul remained at the spot, whereas her sister 'R' was not present there at that time. Thereafter, deceased was immediately taken to Bhagat Chandra hospital by her parents with the assistance of one neighbour aunt. The jewellery articles worn by deceased were handed over to her by the doctor concerned in the presence of the police vide seizurecumhanding over memo already Ex.PW1/6. She deposed that deceased was murdered by accused Rahul Kumar and her sister 'R' as they both were having intimacy with each other and they also used to talk with each other over phone. She also deposed that one day before the incident i.e. on 23.08.2016, 'R' tried to strangulate deceased on which she was scolded by her parents. PW-4 Priyanka Kumari was duly cross examined by ld. counsel for accused Rahul.
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16. PW-5 Sh. Prashant Kumar is the Nodal Officer of Vodafone Mobile Services Ltd. and he had proved the record pertaining to Mobile No.9999326508 which was issued in the name of complainant Banipal. He was duly cross examined by ld. counsel for accused.
17. PW-6 is ASI Birender Singh who deposed that on 24.08.2016 he was posted at PS Palam Village and on that day at about 6.00 pm, on receipt of DD No. 39A, he alongwith Ct.Subhash reached Bhagat Chandra Hospital, Palam, where one lady Pooja was stated to be brought dead and MLC No. 1157/16 of Pooja was prepared in the hospital. At the hospital, he found the relatives of the deceased Pooja i.e. her father Banipal Singh, her husband Rahul and other public persons and that the body of deceased was having apparent injury marks on her neck. SHO as well as Crime Team was informed. Thereafter, SHO and other staff also came to the hospital and the relatives of the deceased were taken on observation of Const. Subhash and he alongwith SHO and other police staff reached at RZF-15, Gali No. 3, Mahavir Enclave, i.e. house of deceased, where Crime Team also reached. He had further deposed that the Crime Team clicked photographs of the scene of crime and one white colour towel found on the bed in the said house was taken in custody by him after the inspection. After the inspection, he alongwith Crime Team came back to the hospital, where the photographs of the deceased were also clicked by the Crime Team. The statement of father of the deceased and the public person i.e. Pushpa, landlady SC no.441519/2016 Page No. 11 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village of the said house, was recorded by him. He thereafter prepared rukka Ex.PW6/1 and handed over the same to Const. Subhash for getting the FIR registered and that the dead body was shifted to DDU Hospital for postmortem through Const. Jitender, who came alongwith SHO. He had deposed that Inspector Meena Yadav and Inspector Subhash came at the spot and he handed over the pullanda containing towel as well as complainant Banipal and accused Rahul to IO/Insp. Meena Yadav. On the next day i.e. on 25.08.2016, he alongwith IO went to DDU Hospital, where after the identification of the dead body, the postmortem of the dead body was got done by the IO. He proved seizure memo of the towel as Ex.PW6/2. He identified the white colour towel having red and green border Ex.P-2 to be the same which was seized by him. He was duly cross examined by ld. counsel for accused.
18. PW-7 SI Surender Singh (Retd.) was the Incharge Crime Team. He deposed that on 24.08.2016, he alongwith crime team members reached at the spot i.e. Bhagat Chandra hospital where one dead body of female Pooja was found. The photographer Ct. Sandeep clicked the photographs of the dead body and thereafter they went to H.No. RZF15, Gali no.3, Mahavir Enclave, PartI, Palam alongwith IO and the relatives of deceased and the said house was inspected. He had further deposed that from there one gamcha which was lying on the bed was lifted by the IO. He had inspected the crime scene and chance prints were tried to be lifted by ASI Kulbhushan, but could not be found. He proved the SC no.441519/2016 Page No. 12 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village crime team report as Ex.PW7/1. He identified one white colour towel Ex.P2 to be the same which was seized by the IO in his presence. He was duly cross examined by ld. Counsel for accused Rahul.
19. PW-8 HC Subhash had joined the investigation alongwith PW-6 ASI Birender Singh on 24.08.2016. He deposed on the same lines as that of PW-6. In addition, he deposed that Banipal raised suspicion upon his soninlaw i.e. accused Rahul and his daughter 'R' as culprits. He took the rukka and got the FIR registered. He proved the arrest memo and personal search memo of accused. He was duly cross examined by ld. counsel for accused.
20. PW-9 Ct. Sandeep, the Photographer, Mobile Crime Team, deposed that on 24.08.2016 he alongwith Incharge/SI Surender Singh reached the spot i.e. RZ-F-15, 1 st Floor, Gali No.3, Mahavir Enclave, New Delhi and clicked the photographs of the spot. Thereafter he alongwith crime team reached Bhagat Chandra Hospital and also clicked photographs of dead body. He had proved six photographs clicked by him as Ex.PW9/A1 to Ex.PW9/A6 and also their negatives as Ex.PW9/2. He was duly cross examined by ld. counsel for accused.
21. PW-10 HC Hardeep Singh was posted in Mapping Section and deposed that on 28.09.2016, he alongwith Insp. Meena Yadav went to spot i.e. first floor of house No.RZ-F-15, SC no.441519/2016 Page No. 13 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village Gali no.3, Mahavir Enclave, New Delhi where father of deceased met them. He prepared rough notes on the pointing out of father of deceased and thereafter on 29.09.2016 he prepared scaled site plan Ex.PW10/A on the basis of said rough notes and after preparation of scaled site plan, he destroyed the rough notes. His cross examination by ld. counsel for accused was recorded 'NIL'.
22. PW-11 HC Virender is the Duty Officer. He proved the FIR and the certificate under Section 65B of Indian Evidence Act. His cross examination by ld. counsel for accused was recorded 'NIL'.
23. PW-12 Dr. Sarah was working as General Physician, Aakash Hospital, Sector-3, Dwarka, Delhi. PW-12 had deposed that on 24.08.2016 she was working as Trainee in Bhagat Chandra Hospital and while she was discharging her official duty in casualty, at about 5.35 pm one patient Pooja Solanki aged about 20 years was brought in Casualty in in unconscious state by one Pushpa (neighbour of Pooja Solanki). She had further deposed that patient Pooja Solanki was medically examined by her and at that time, she was frothing from mouth and ligature mark was seen in anterior neck. She had further deposed that during her examination, it was observed that her pulse, B.P. and respiratory system were not responding, pupil fixed dilated, temperature cold, ECG straight line and on the basis of aforesaid medical condition/observation of Pooja Solanki, she was declared dead. PW-12 had deposed that police was called and her body was handed over to them. She had further deposed that SC no.441519/2016 Page No. 14 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village whatsoever she had observed during medical examination of deceased Pooja Solanki, she had reduced into writing in casualty death record and proved the same as Ex.PW12/A bearing her signature at point-A. She had further deposed that deceased Pooja Solanki was medically examined by her with the assistance of Dr. Avinash and MLC of deceased Pooja was prepared by Dr. Avinash. She had identified the signature of Dr. Avinash on the MLC Ex.PW12/B at point-X and deposed that Dr. Avinash had left the services of Bhagat Chandra Hospital and she was well conversant with the handwriting and signature of Dr. Avinash as she had worked with him in official capacity. She was duly cross examined by ld. counsel for accused.
24. PW-13 Dr. Jatin Bodwal conducted postmortem on the dead body of deceased and proved his postmortem report as Ex.PW13/A. He gave subsequent opinion on the ligature materials produced by IO and proved his report as Ex.PW13/B. He duly identified both the ligature materials in the Court. He was duly cross examined by ld. counsel for accused.
25. PW-14 Insp. Meena Yadav is the Investigating Officer. She deposed that on 24.08.2016 investigation of present case was marked to her by SHO and she reached at the spot i.e. F-15, Gali No. 3, Mahavir Enclave, Part-1, New Delhi, where beat officer met her and informed her that IO had gone to Bhagat Chandra Hospital. Thereafter, she went to Bhagat Chandra Hospital, Mahavir Enclave, where ASI Virender (Birender) met her and informed her that the dead body was removed to DDU Hospital SC no.441519/2016 Page No. 15 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village for postmortem. Complainant Banipal Singh also met her at Bhagat Chandra Hospital and she alongwith complainant came back to the spot and prepared site plan Ex.PW1/4 at the instance of complainant. Accused Rahul was already taken to the police station by the police from Bhagat Chandra Hospital and landlady of H. No. F-15 was also taken to the police station by police staff. She also came back to PS after initial investigation at the spot and at the police station, tehrir Ex.PW1/1 and Rukka Ex.PW6/1 along with copy of FIR Ex.PW11/A were handed over to her by Ct. Subhash. Thereafter, she interrogated landlady Smt. Pushpa and also interrogated accused Rahul Kumar. She recorded disclosure statement Ex.PW8/1 of accused Rahul and arrested him vide arrest memo Ex.PW1/5 and personal search of accused was conducted vide memo Ex.PW8/2. During interrogation, accused Rahul pointed out the spot and got recovered one Chunni Ex.P1 which was seized vide seizure memo Ex.PW1/2. Accused also led the police team to Gurugram and pointed out 'R' (Juvenile) who was also arrested in present case. Accused Rahul was sent to Lockup after medical examination and 'R' (JCL) was kept under the custody of Ct. Suman. ASI Virender (Birender) handed over to her medical documents Ex.PW12/A & Ex.PW12/B and seizure memos Ex.PW6/2 & Ex.PW1/6 and she mentioned the case details on these memos after receiving the copy of FIR, when she was going for postmortem. The postmortem on the body of deceased was got conducted at DDU Hospital and the dead body was identified by complainant vide memo Ex.PW1/3 and by Bobby vide memo Ex.PW14/B. The wearing clothes of the deceased were seized by the doctor and SC no.441519/2016 Page No. 16 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village handed over to her vide memo Ex.PW14/A and thereafter dead body was handed over to complainant vide memo Ex.PW14/C. Thereafter, she came back to PS along with case property and deposited the same in Malkhana. Accused persons were produced before Court and during Court proceedings, it was revealed that accused 'R' was minor and age proof of 'R' was collected from her parents and got verified and after verification of the age, 'R' was shifted to JJB, Delhi Gate by the order of Court. During investigation, she recorded statement of witnesses, collected crime team report Ex.PW7/A and photographs Ex.PW9/A1 to Ex.PW9/A6 and also got prepared scaled site plan Ex.PW10/A. She also prepared death report Ex.PW14/E on 25.08.2016 and also collected the telephone details of complainant Ex.PW5/1 to Ex.PW5/4 which proved that accused had talked on the telephone number of complainant. One SIM was recovered from the possession of accused during his personal search and one SIM & telephone were recovered from the possession of 'R' (Juvenile) during her personal search. She also collected the postmortem report and subsequent opinion Ex.PW13/A & Ex.PW13/B respectively. She proved her letter for the purpose of opinion on PM Report No. 1394/16 as Ex.PW14/D. After completion of investigation, she prepared the chargesheet and filed the same in the Court. She correctly identified accused Rahul in the Court. On putting a question as to when did she put FIR Number on the site plan Ex.PW1/4, she replied that she mentioned the case details on site plan Ex.PW1/4 after receiving the copy of FIR. She was duly cross examined by ld. counsel for the accused.
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26. PW-15 W/HC Suman is a witness of investigation alongwith IO. She was duly cross examined by ld. counsel for accused.
27. PW-16 Sh. Sanjay Singh deposed that he was working in Aircel Company since 2014. Aircel Company had been admitted into insolvency by NCLT vide order dated 12.03.2018. He could not bring the CAF and CDR of mobile No.8285697869 as the same are stated to be not traceable. He filed his affidavit to the effect that Aircel is under Corporate Insolvency Resolution Process (CIRP), all the business operation of the company have been shut down and the servers are closed. The CDR of mobile phone of accused could not be proved.
28. Thereafter prosecution evidence was closed.
Statement under Section 313 CrPC & Defence Evidence
29. Statement of accused under Section 313 CPC was recorded wherein each and every incriminating evidence against the accused was put to him but he denied the same and stated that he stayed for one day at the house of complainant, however, he did not remember the date. He has also stated that he has been falsely implicated in this case by the police at the instance of PW-1 Sh. Banipal Singh as he wanted to save his daughter 'R' (JCL) from punishment.
30. Accused had opted not to lead any evidence in his defence.
SC no.441519/2016 Page No. 18 of 58State vs. Rahul Kumar FIR no.325/2016, PS Palam Village Arguments on behalf of parties
31. Ld. Addl. PP for the State had argued that the prosecution case lies on circumstantial evidence. The ocular testimony of the father of the deceased coupled with the testimony of her sister and minor brother and that of an independent witness who happened to be the landlady of the house wherein the family of the complainant was residing, has proved the case of the prosecution. The testimony of these witnesses clearly proves the motive behind strangulating the deceased by accused herein with 'R' (JCL). Ld. Addl. PP for the State had further argued that PW- 1 and PW-4 had categorically stated/deposed that accused was having intimacy with 'R' (JCL). Even one day prior to the date of incident i.e. on 23.08.2016 'R' (JCL) tried to strangulate deceased, however, she was unsuccessful. 'R' (JCL) fled away from the house and she was brought back by the accused on the very same day who stayed in the house on that day and on the very next day, they both murdered deceased.
32. Ld. Addl. PP for State had further argued that 'R' (JCL) fled away from the spot whereas accused Rahul remained there. It was argued that despite knowing that his wife was not responding, accused Rahul chose not to seek any medical help for her. He neither called on 100 number not called any ambulance and therefore, it was his duty to explain as to what had happened there.
33. Ld. Addl. PP for the State had further argued that ligature SC no.441519/2016 Page No. 19 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village material i.e. chunni had been duly recovered at the instance of the accused which was witnessed by PW-1 Sh. Banipal and the other ligature material was found at the spot. The postmortem report i.e. the medical evidence on record had clearly proved that cause of death was due to asphyxia and death was homicidal in nature. Ld. Addl.PP for the State had further argued that subsequent opinion on the ligature material i.e. chunni and gamchha was also taken and the doctor opined that either of the ligature material produced by the IO was sufficient to strangulate the deceased.
34. He had further argued that the prosecution has duly proved each and every circumstance beyond reasonable doubt. There is no delay in registration of FIR. The accused has not discharged the onus which shifted on him that he was present at the spot while his wife was lying dead on the bed. He had further submitted that the ocular testimony of witnesses coupled with the medical evidence which has been proved on record by the doctors proves the prosecution version and points out towards the guilt of the accused beyond reasonable doubt, therefore, the accused be convicted for committing the offence punishable under Section 302/34 IPC.
35. On the other hand, ld. Counsel for the accused had argued that mens rea in this case is missing. As per the own case of the prosecution, the deceased had died within a very short span so there cannot be such kind of intimacy between the accused and 'R' (JCL) that they would plan the murder of wife of accused SC no.441519/2016 Page No. 20 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village who happened to be the real sister of the co-accused i.e. 'R' (JCL).
36. Ld. counsel for the accused had further argued that even the CDRs which have been placed on record speaks contrary to the prosecution version. The perusal of the CDR of mobile phone of Sh. Banipal would show that there are very less calls (close to NIL) from the mobile phone of Sh. Banipal on the mobile phone of accused Rahul. He had argued that this indicates that accused Rahul and 'R' (JCL) never talked to each other on phone and hence they could not have been close to each other in such a short span.
37. Ld. Counsel for accused had further argued that the photographs of the crime scene do not show any kind of resistance by the deceased as no wrinkles could be found on the bedsheet as reflected in the photographs.
38. Ld. Counsel for the accused had further argued that it is an admitted fact that on a day prior to the date of incident i.e. on 23.08.2016 co-accused 'R' (JCL) had tried to strangulate the deceased, however, she was unsuccessful and therefore, she made another attempt and after strangulating deceased, she ran away from the spot.
39. He had further argued that the very fact that accused was present at the spot itself shows that he was in a shock and he had gone to the hospital as well which is the normal behaviour of any person under the circumstances given above.
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40. Ld. Counsel for the accused had argued that had he not gone to the hospital, his conduct would have been abnormal. Ld. Counsel for the accused had argued that being the husband, the accused duly went to the hospital and therefore, he cannot be said to have committed the crime.
41. Ld. Counsel for the accused had argued that last scene theory is not applicable to the present case as none of the witness had stated that the accused was present in the morning of 24.08.2016.
42. Ld. Counsel had argued that the recovery of the ligature material is also doubtful as PW-1 had deposed that the chunni was recovered at his instance whereas PW-3 Smt. Pushpa had deposed that gamchha was recovered. Ld. Counsel for the accused had argued that during cross examination of PW-1, ld. Predecessor of this Court had given Court observation that the seal on the ligature mark when produced by the MHC(M) were opened without showing it to the Court and therefore, the recovery of ligature material also becomes doubtful.
43. Ld. Counsel for the accused had further argued that he had cross examined PW-13 Dr. Jatin Bodwal and during his cross examination, he admitted that the ligature marks mentioned in the PM Report of deceased Pooja could be caused by any other ligature material also.
44. Ld. Counsel for the accused had argued that there is no SC no.441519/2016 Page No. 22 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village material on record which can connect the accused with the crime and hence, he is liable to be acquitted for the charges framed.
45. I have heard ld. Addl. PP for the State and ld. counsel for accused persons and have also carefully perused the record.
Analyisis, Reasoning & Findings
46. It is a cardinal principle of criminal jurisprudence that the prosecution has to prove its case beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredients of the offence beyond reasonable doubt. Reliance in this regard is placed on Nasir Sikander Shaikh vs. State of Maharashtra (SC) 2005 Crl.L.J. 2621 and Jarnail Singh vs. State of Punjab (SC) 1996 (1) RCR 465.
47. Now, let us discuss the case with respect to the charge for the offence of murder under Section 302/34 IPC. The present case is based on circumstantial evidence. Before proceeding to the merits of the case, let us dwell on the law pertaining to the circumstantial evidence. In Sharad Birdhi Chand Sarda vs. State of Maharashtra 1984 AIR 1622 / 1985 SCR (1) 88, it was held that :
"3:3. Before a case against an accused vesting on circumstantial evidence can be said to be fully established the following conditions must be fulfilled as laid down in Hanumat's v. State of M.P. [1953] SCR 1091. [163C]
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established; [163D]
2. The facts so established should be SC no.441519/2016 Page No. 23 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; [163G]
3. The circumstances should be of a conclusive nature and tendency; [163G]
4. They should exclude every possible hypothesis except the one to be proved; and [163H]
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. [164B] These five golden principles constitute the panchsheel of the proof of a case based on circumstantial evidence and in the absence of a corpus deliciti. [164B].
It was further held in aforesaid case :
3:4. The cardinal principle of criminal jurisprudence is that a case can be said to be proved only when there is certain and explicit evidence and no pure moral conviction. [164F]"
48. In Musheer Khan @ Badshah Khan v. State of Madhya Pradesh dated 28.01.2010, the Hon'ble Supreme Court of India while discussing the nature of circumstantial evidence and the burden of proof of prosecution stated as under:-
"39. In a case of circumstantial evidence, one must look for complete chain of circumstances and not on snapped and scattered links which do not make a complete sequence. This Court finds that this case is entirely based on circumstantial evidence. While appreciating circumstantial evidence, the Court must adopt a cautious approach as circumstantial evidence is SC no.441519/2016 Page No. 24 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village "inferential evidence" and proof in such a case is derivable by inference from circumstances."
49. There is no doubt in respect of the fact that deceased had died in unnatural circumstances.
50. The case of the prosecution is based on the circumstantial evidence and the circumstances on which the prosecution has heavily relied in order to prove the guilt of the accused are as under :-
(i) Motive (ii) Time of occurrence of crime
(iii) Presence of accused at the spot with deceased
(iv) Recovery of ligature materials
(v) Medical evidence.
Motive
51. The word motive comes from the Latin words motivus, meaning moving, and movere, meaning to move. Think of motive as the thing that moves you to act.
52. Section 8 of Indian Evidence Act makes the motive important in a criminal trial. Section 8 of Indian Evidence Act is reproduced hereinunder:-
"8. Motive, preparation and previous or subsequent conduct Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.
The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to SC no.441519/2016 Page No. 25 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
Explanation 1. -- The word conduct in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.
Explanation 2. -- When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant."
53. Before coming to the merits of the case, it is important to discuss the law propounded in various judgments by the Higher Courts in respect of motive.
54. In the case Sheo Shankar Singh vs. State of Jharkhand (2011) 3 SCC 654, the Hon'ble Supreme Court had observed as under:
"13. The legal position regarding proof of motive as an essential requirement for bringing home the guilt of the accused is fairly well settled by a long line of decisions of this Court. These decisions have made a clear distinction between cases where prosecution relies upon circumstantial evidence on the one hand and those where it relies upon the testimony of eye witnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the SC no.441519/2016 Page No. 26 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village prosecution may rely. Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eye-witness account of the occurrence. That is because if the court upon a proper appraisal of the deposition of the eye- witnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely even if prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eye-witnesses is found unreliable or unworthy of credit, existence of a motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eye-witness account does not lend strength to the prosecution case or fortify the court in its ultimate conclusion. Proof of motive in such a situation certainly helps the prosecution and supports the eye- witnesses."
55. Further, in Prem Kumar vs. State of Bihar (1995) 3 SCC 228, the Hon'ble Supreme Court while relying upon the judgment in State of UP. v. Moti Ram & Ors. 1990 (4) SCC 389 has held as under:
"xxx xxx xxx Very often, a motive is alleged to indicate the high degree of probability, that the offence was committed by the person, who was prompted by the motive. In our opinion, in a case when motive alleged against the accused is fully established, it provides a foundational material to connect the chain of circumstances. We hold that if motive is proved or established, it affords a key or pointer, to scan the evidence in the case, in that perspective and as a satisfactory circumstance of corroboration. It is a very relevant, and important aspect,
(a) to highlight the intention of the accused and (b) the approach to be made in appreciating the totality of the circumstances, including the evidence SC no.441519/2016 Page No. 27 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village disclosed in the case."
56. The Hon'ble Supreme Court in Prem Kumar (supra), has further observed as under:
"The relevance of motive and the importance or value to be given to it are tersely stated by Shamsul Huda in delivering the Tagore Law Lectures (1902)- The Principles of the Law of Crimes in British India, at page 176, as follows:-
"But proof of the existence of a motive is not necessary for a conviction for any offence. But where the motive is proved it is evidence of the evil intent and is also relevant to show that the person who had the motive to commit a crime actually committed it, although such evidence alone would not ordinarily be sufficient. Under Section 8 of the Evidence Act any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact."
57. In the light of law laid with respect to motive, the said circumstance becomes relevant in the present case as the case of the prosecution is based upon circumstantial evidence. The Hon'ble Supreme Court has categorically observed that absence of motive or non-proving of the same does not give any benefit to the accused, however, in case the motive stands established, it provides a foundational material to connect the chain of circumstances. With this background of law, let us come to the findings on this circumstance relied upon by prosecution.
58. Prosecution has examined four witnesses (PW-1 to PW-4) in order to prove the motive to commit crime by accused Rahul SC no.441519/2016 Page No. 28 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village alongwith 'R' (JCL).
59. PW-1 deposed that the marriage of his eldest daughter i.e. deceased with accused Rahul Kumar took place on 14.07.2016 at his native village in U.P. PW-1 had deposed that after four days of marriage, accused Rahul alongwith his friends came to his house and stayed there for four days and after four days of his stay, PW-1 sent him back to his house. He was cross examined on this aspect he stated that accused resided at his house for four days after eight days of his marriage with his daughter and one other person accompanied him. No suggestion was put to PW-1 regarding his stay in the house of PW-1 during this period.
60. PW-1 Sh. Banipal Singh, had further deposed that on 07.08.2016 accused Rahul again came to his house and stayed there till 19.08.2016 and deceased also stayed with him. Even in his cross examination, PW-1 had stated that accused Rahul came to his house on 07.08.2016 on the occasion of birthday of his son Rajan. Said testimony of PW-1 was corroborated by PW-3 Smt. Pushpa who is the landlady of the premises in which PW-1 alongwith his family was residing. The relevant portion of her (PW-3) testimony is reproduced hereinunder:
"Thereafter, few days before the festival of Rakhi, they celebrated birthday of Raja, son of Banipal. Pooja and her husband were also present at the time of celebration and were staying in the tenanted premises of Banipal."
61. No cross of PW-1 or PW-3 was conducted on this aspect by ld. counsel for accused. No questions were put to these SC no.441519/2016 Page No. 29 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village witnesses in this regard. It is a settled law that in case the correctness of a statement is to be disputed, same must be put to the witness so as to afford him opportunity to explain his statement. Reliance in support thereof is placed on the judgment of the House of Lords in Browne Vs. Dunne 2 (1893) 6 R 67 (HL) :
"I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross examination showing that the imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchanged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story tells he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses."
62. The principle laid down in Browne vs. Dunne (Supra) was subsequently approved by Hon'ble Supreme Court of India in Rajendar Prasad Vs. Darshana Devi (2001) 7 SCC Page 69, wherein it was held :
"There is an age old rule that if you dispute the correctness of the statement of a witness you SC no.441519/2016 Page No. 30 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village must give him an opportunity to explain his statement by drawing his attention to that part of it which is objective to as untrue, otherwise you cannot impeach his credit................."
63. Since no suggestion was put to these witnesses in respect of this testimony, therefore, the correctness of this part of their testimony stands proved. The defence of the accused is found only in his statement recorded under Section 313 CrPC that he stayed only for one day at his in-laws' house. This fact was never put to either PW-1 or to PW-3 which suggests that his defence is ex-facie false and is an afterthought. Therefore, it stands proved beyond reasonable doubt that accused had stayed for 16 days out of total period of 35 days at his in-laws' house since the date of his marriage with deceased.
64. Ld. counsel for accused had argued that CDR's shows that accused and 'R' (JCL) had no conversation on phone and therefore, the story of prosecution to the effect that they were in deep love and they planned the murder of deceased, is disproved. So far as this argument is concerned, the conversation between accused and 'R' (JCL) on mobile are completely irrelevant in view of the fact that accused Rahul was living most of the time at the place where 'R' (JCL) was already residing (i.e. at her house). When they were physically present at the same place, there was no requirement of using the mobile phone for talking to each other. Therefore, this argument of learned counsel for the accused cannot be accepted.
65. In order to prove intimacy of accused with 'R', PW-1 SC no.441519/2016 Page No. 31 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village stated in his cross examination that when he saw that the accused was making efforts to become close to his daughter 'R' (JCL), he made the accused to go away from his house. He scolded his daughter 'R' (JCL) in this regard. He objected to their closeness prior to getting him away from his house. Suggestion was put to PW-1 in this regard by ld. counsel for the accused and PW-1 denied the suggestion. This statement of PW-1 could not be shaken during his cross examination on behalf of accused.
66. Ld. counsel for accused had argued that there was no intimacy between accused Rahul and 'R'(JCL). Ld. counsel for the accused had further argued that the very fact that PW-1 did not ask the accused to go away from the house himself shows that there was no relation between the accused and 'R' (JCL) and everything was normal at the house of PW-1.
67. So far as this argument is concerned, it is no more res integra that the isolated lines from the evidence of a witness cannot be picked and relied upon. The entire testimony has to be read and understood as a whole. During his cross examination, PW-1 had categorically stated that he saw accused making efforts for coming close to his daughter 'R' (JCL) on which he made the accused to go away from his house. In the same cross examination, he had stated that he had asked deceased to tell the accused to go away as he could lose his job.
68. In this regard, it is necessary to understand the structure of the society. As and when a daughter of some person gets SC no.441519/2016 Page No. 32 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village married, the son-in-law, especially immediately after the marriage is given utmost respect. No member from the family of the daughter (girl) can ask the son-in-law to move out of the house even if any of his act is disliked by the family members.
69. The holistic reading of whole testimony of PW-1 clearly indicates the intention of PW-1 (father of a married daughter). Since PW-1 could see that his son-in-law who was married to his eldest daughter, was trying to come close to his youngest daughter, he asked his daughter (deceased) to ask accused to leave the house by quoting some other reason rather than directly asking him to leave the house. Hence, in view of aforesaid discussion, the arguments of learned counsel for accused are not tenable and hence turned down. Hence, it is proved that PW-1 made conscious efforts to separate 'R' from accused.
70. It stands established that 'R' (JCL) had a special relation with accused Rahul which was much more than a simplicitor relation of being a sister of wife of the accused Rahul.
71. The closeness of 'R' (JCL) with accused is further proved by the fact that on 23.08.2016 'R' (JCL) tried to strangulate the deceased. This fact has been proved by PW-1, PW-3 as well as PW-4.
72. PW-1 in his testimony stated that on 23.08.2016, deceased had come to his shop and had told him that 'R' (JCL) had tried to strangulate her.
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73. PW-4 corroborated the above version of PW-1. The relevant part of her testimony is reproduced hereinunder:
"Prior to one day before the incident i.e. on 23.08.2016, my sister 'R' had tried to strangulate Pooja and thereupon, 'R' was scolded by my parents."
74. PW-3 Smt. Pushpa also corroborated the above versions of PW-1 and PW-4 by stating as under:
"One day prior to death of Pooja i.e. around 23- 24.07.2016, Pooja had told me that her sister Rinki had strangulated her and on this, I advised her to make complaint to her parents as I cannot do anything in that matter. Thereafter, 'R' left her house on the same day and accused Rahul had brought her back on the same day. Then parents of 'R' scolded her."
75. It is pertinent to mention here that the date given by PW-3 was 23/24.07.2016, whereas actual date was 23.08.2016. She had clarified the date by stating that "one day prior to death of Pooja". She being a natural witness is not expected to remember each and every minute detail. Even otherwise, the date was also clarified by Ld. Addl. PP for the State by putting a leading question to the witness and she admitted the same. Nothing was suggested to PW-3 regarding the date of incident in her cross examination.
76. Infact, it is the case of accused in the arguments that since the first attempt of 'R' (JCL) was unsuccessful, 'R' (JCL) again strangulated deceased on the next day which was successful and she died. Hence, it is proved leaving no room for doubt that a day SC no.441519/2016 Page No. 34 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village prior to murder of deceased, 'R' (JCL) tried to strangulate her. Accused has not put any suggestion to any of these witnesses as to what would be the other reason for making an attempt by 'R' (JCL) to strangulate the deceased. The facts of this case are very peculiar. Offence of murder of eldest daughter of complainant has been committed. The family members including the complainant are deposing against his youngest daughter. There could not be no other reason for 'R' (JCL) to strangulate the deceased on 23.08.2016 except for the one which prosecution has put forth. Neither any case has been set up by accused for such action of 'R' (JCL) nor anything was put to PW-1 to PW-4 in this regard. Simply pleading that 'R' (JCL) committed the murder of her eldest sister without proving anything in support thereof is of no avail.
77. The abovesaid testimony with respect to closeness of 'R' (JCL) with accused Rahul is further strengthened by further testimony of PW-1 wherein had deposed that on 23.08.2016, 'R' (JCL) went missing and thereafter PW-1 called the accused on his mobile. At about 2.00 pm on the same day, accused Rahul came to his house with 'R' (JCL). Instead of searching his own daughter himself, PW-1 simply made a call to the accused to inform him that 'R' (JCL) was missing. This shows that PW-1 was confident that the accused would be knowing where 'R' (JCL) was and as expected, accused returned back with 'R' (JCL) on the same day. This deposition by PW-1 is also endorsed by PW-3 Smt. Pushpa who had stated in her cross examination that one day prior to murder, she (PW-3) had seen accused Rahul SC no.441519/2016 Page No. 35 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village Kumar alongwith 'R' (JCL) while they returned home. They were in the gali and she saw them as she was sitting in the gali itself.
78. In view of the aforesaid discussion, it has been duly established by prosecution without leaving any room for doubt that accused Rahul and 'R' (JCL) were close to each other and therefore they had the motive to commit the crime. The said fact is relevant under Section 8 of Indian Evidence Act. Therefore, one of the circumstance i.e. motive to commit the crime stands duly proved.
Time of occurrence of crime
79. The case of the prosecution is primarily based on the ocular testimony of four witnesses i.e. PW-1 to PW-4. PW-1 Sh. Banipal Singh is father of deceased, PW-2 Rajan @ Raja is brother of the deceased, PW-3 Smt. Pushpa is the landlady of PW-1 and PW-4 Priyanka is sister of the deceased.
80. PW-1 in his evidence does not give any time on 24.08.2016 as to when he got the information about the deceased. He simply deposed in his testimony that on 24.08.2016 when he was present at his Tea Shop, his son Rajan came to his shop and told him that his son-in-law Rahul was calling him at home. He immediately went to his house and noted that deceased was lying on the bed, her neck was hanging and her legs were dangling. Accused Rahul was present there but 'R' (JCL) was not present at the house. No suggestion was put to PW-1 that accused did not SC no.441519/2016 Page No. 36 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village call PW-1 through Rajan.
81. PW-2 Rajan @ Raja had deposed that on 24.08.2016 he came back to his house from school at 2.00 pm and thereafter went to tuition at 3.00 pm and returned home at 4.00 pm. Thereafter, he parked his cycle and then his jija Rahul told him to go upstairs and to see what had happened to his sister. He went upstairs and found that his sister was lying on the bed and she did not react when he shaked her body. He went to his father's shop and his father took his sister to hospital. No suggestion was put to PW-2 in respect of the specific time given by him for going to tuition at 3.00 pm and coming back home at 4.00 pm on 24.08.2016.
82. From the above deposition of PW-2, it is clear that till 3.00 pm when PW-2 went for his tuition, everything was fine and and deceased was alive.
83. PW-3 Smt. Pushpa had deposed as under:
"On the date of incident i.e. 24 or 25.07.2016, in the afternoon at about 3.00 pm, Pooja told me that she had prepared snacks/pakora and served to Rahul. Further I asked her about her well being."
84. It is relevant to mention that though PW-3 has given wrong date i.e. 24/25.07.2016 and actual date is 24.08.2016 but since the witness said that "on the date of incident", mentioning of wrong date is not fatal. No suggestion was put to PW-3 regarding her deposition with respect to talking to deceased at 3.00 pm or deceased telling her about serving snacks to accused SC no.441519/2016 Page No. 37 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village Rahul. From this testimony of PW-3, it can be gathered clearly that deceased was alive till 3.00 pm as she talked to PW-3 Smt. Pushpa and since she was serving pakoras to the accused, the accused Rahul was also present at 3.00 pm in the house.
85. PW-4 Priyanka had deposed that on 24.08.2016 in the morning, her parents had gone to their shop at Gali No.3, Mahavir Enclave. She also went there at about 2.00 pm meaning thereby she had seen the deceased for the last time at 2.00 pm. She had further deposed that at about 3.45 pm when she returned to her house from the shop to attend the nature's call, she saw that the door of the room was bolted by latch from outside without lock and accused was sitting on the adjoining stairs. When she opened the latch of the room, she found that her sister was lying on the bed and she was not responding. She immediately ran towards the shop to call her parents and brought her mother to her room and in the meantime, her father alongwith her brother also reached there. Accused Rahul was present there whereas 'R' (JCL) was not present. PW-4 was not cross examined on the above stated deposition. No suggestion was put to her regarding her abovesaid testimony.
86. Hence, from testimony of PW-4, it can be seen that she had seen deceased last alive at 2.00 pm whereas at 3.45 pm deceased was already dead as she was not responding.
87. On scanning the testimony of all these four witnesses, it can be inferred that deceased was alive till 3.00 pm and was not SC no.441519/2016 Page No. 38 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village found to be responding at 3.45 pm firstly by PW-4 Priyanka and then at 4.00 pm by PW-2 Rajan.
88. Ld. counsel for the accused had argued that the testimony of these witnesses is not worth credence as they had given different timings of the incident. A careful perusal of the testimony of these witnesses, when read together, shows that there is no discrepancy at all in testimonies of any of these witnesses. During cross examination of PW-4, she had categorically stated that it takes about 5 to 10 minutes to reach to the shop of her father on foot and there were 2-3 ways to reach the shop of her father from her house. She did not meet her brother Rajan when she returned home from the shop and she voluntarily stated that he might have taken different way. The aforesaid statement of PW-4 clearly explains that when she went to her house for attending the nature's call, she might have taken a different way.
89. From running through the testimony of these witnesses, it can be safely culled out that it was PW-4 Priyanka who had noticed the incident at the first instance as she is the only one who had stated that she found the doors of the room bolted by latch from the outside without lock and her sister was lying on the bed when she opened the latch. PW-2 Rajan had simply stated that he went inside the room at the asking of his jija and found her sister lying on the bed and she was not reacting.
90. The testimony of PW-2 and PW-4 demonstrates the entire SC no.441519/2016 Page No. 39 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village picture clearly. PW-4 went to the house first, noticed the incident, went back to call her parents, in the meantime PW-2 Rajan returned back from the tuition and at the asking of his jija went to the room where he saw his sister lying on the bed who was not reacting. PW-2 also went to call his father. PW-1 had endorsed the version of PW-2 and had deposed that his son came to call him and stated that his son-in-law was calling him. He also reached there. The testimonies of these witnesses show that ultimately everybody gathered there and found deceased lying in unconscious state and was not responding. The testimony of these witnesses have passed the test of gruelling cross examination and even then their statements are found to be reliable, trustworthy and hence, deserve credence. They do not seem to be based on any falsehood. From the aforesaid testimonies of these witnesses, it is duly established that the murder of deceased had taken place between 3.00 pm to 3.45 pm on 24.08.2016 and she was alive till 3.00 pm on the said date.
Presence of accused at the spot with deceased
91. It is worthwhile to note that the family of the complainant (PW-1) consisted of himself, his wife, his three daughters i.e. deceased, PW-4 Priyanka, co-accused 'R' (JCL) and one son PW-2 Rajan @ Raja.
92. PW-1 had categorically stated in his testimony that accused Rahul had come back alongwith 'R' (JCL) to the house of complainant i.e. PW-1 on 23.08.2016. This fact is also corroborated by PW-3 who had deposed that she saw them SC no.441519/2016 Page No. 40 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village coming back together on 23.08.2016. PW-1 had further deposed that thereafter, he stayed at his (PW-1) house. There is no cross examination of PW-1 or PW-3 or suggestion to them disputing this fact. This shows that accused did not go from the house of the complainant on 23.08.2016 and therefore, in the morning of 24.08.2016, he was present in the house of PW-1.
93. From the testimonies of the aforesaid witnesses, it is clear that on 24.08.2016 apart from the family of the complainant, accused was also present. It is not even the case of accused that he was not present in the house of PW-1 on 24.08.2016. PW-4 in her deposition, had stated that her parents had gone to the shop in the morning itself on 24.08.2016 and she also went to the shop at 2.00 pm. The testimony of PW-2 Rajan @ Raja shows that he also left his house for tuition at 3.00 pm. The aforesaid testimony of PW-2 and PW-4 finds corroboration from the testimony of PW-3 who had deposed that deceased had told her (PW-3) that she was serving snacks to accused Rahul. No cross examination was conducted or no suggestion was put to PW-3 disputing the fact that deceased had served snacks to accused at 3.00 pm or that said fact was not told to her by deceased.
94. It stands established on record that complainant, his wife, daughter Priyanka and son Rajan were not present in the house at 3.00 pm on 24.08.2016. Therefore, the persons who were present in the house were accused Rahul, 'R' (JCL) and deceased. At 3.45 pm, only accused was found sitting on the stairs by PW-4 and her sister was found lying on the bed inside the room. 'R' SC no.441519/2016 Page No. 41 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village (JCL) was not found in the house.
95. Resultantly, it stands proved beyond reasonable doubt that accused Rahul and 'R' (JCL) were present alongwith deceased when she was alive at 3.00 pm but at 3.45 pm when she was found lying on the bed by PW-4, only accused Rahul was present.
96. The last seen theory was appreciated in Ganpat vs. State of Madhya Pradesh AIR 2017 SC 4839 wherein the Hon'ble Supreme Court has observed as under:
"10 Evidence that the accused was last seen in the company of the deceased assumes significance when the lapse of time between the point when the accused and the deceased were seen together and when the deceased is found dead is so minimal as to exclude the possibility of a supervening event involving the death at the hands of another. The settled formulation of law is as follows :
"The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. xxx xxx"
97. The last seen theory is an important link in the chain of circumstances that points towards guilt of accused and the burden shifts on the accused to offer a reasonable explanation as to the cause of death of deceased. Only accused Rahul or 'R' (JCL) had the special knowledge as to what had happened between 3.00 SC no.441519/2016 Page No. 42 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village pm to 3.45 pm.
98. In the case Trimukh Maroti Kirkan vs. State of Maharashtra 2006 AIR CW 5300, it was held as under:
"12. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh (2003) 11 SCC 271). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him."
Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the SC no.441519/2016 Page No. 43 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."
99. In the aforesaid judgment, the crime was committed in the privacy of the room and Hon'ble Supreme Court held that it was unlikely for the prosecution to establish as to what happened inside the room and shifted the burden on the accused to offer a reasonable explanation.
100. The facts of the present case are quite identical. Deceased was found lying on the bed in the house of PW-1 where only accused Rahul and 'R' (JCL) were found to be present as per the testimony of prosecution witnesses, as established in preceding paras. Therefore, accused was duty bound to offer the explanation, which he did not offer. Hence, the above judgment and its ratio are squarely applicable to the case in hand.
101. Further in Lalu Pasi vs. State 2017 SCC Online Del 11537, the Division Bench of Hon'ble High Court of Delhi has discussed the 'Last seen theory' in detail and has observed as under:-
SC no.441519/2016 Page No. 44 of 58State vs. Rahul Kumar FIR no.325/2016, PS Palam Village "15. Elaborating the principle of "last seen alive"
in State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254, this Court held as under: (SCC p. 265, para
23) "23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categorical in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his SC no.441519/2016 Page No. 45 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohamed, In re. [AIR 1960 Mad 218]"
102. The Hon'ble Supreme Court in aforesaid judgment has emphasized that in case such reasonable explanation is not offered by accused, when he has the exclusive and special knowledge of facts, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain.
103. The law, therefore, is quite well settled that burden of proving the guilt of an accused is on the prosecution, but there may be facts pertaining to a crime that can only be known to an accused, or are virtually impossible for the prosecution to prove. The offence occurred within the four corners of a house. True facts need to be explained by the accused and if does not do so, then it is a strong circumstance pointing to his guilt based on these facts.
104. Applying this principle to the facts of the case, since Pooja died an unnatural death in the room where accused Rahul and 'R' (JCL) were present, the cause of her unnatural death was known to accused Rahul only as 'R' (JCL) is not before this Court. There is no evidence that anybody else had entered the house of PW-1 or could have entered the said house/room where deceased was found lying on the bed. Accused Rahul did not set up any case that while the incident occurred, he was not in the house or some SC no.441519/2016 Page No. 46 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village other person entered the house of PW-1 between 3.00 pm to 3.45 pm. Accused Rahul had only stated that 'R' (JCL) had murdered deceased. Even for the sake of presuming, it is accepted as a gospel truth, accused failed to offer any explanation as to what he did in order to save his wife from 'R' (JCL). He does not say anywhere that he was not present at the house of PW-1 at that time.
105. Apart from above observation, it is worthwhile to notice that the accused Rahul was found sitting on the stairs outside the room in which the deceased was found lying on the bed, meaning thereby he knew that something unfortunate had happened to his wife. Instead of taking her to the hospital or calling the ambulance or calling at 100 number, he chose to sit quietly on the stairs and when PW-2 came to his house from tuition, accused sent him upstairs in order to see what had happened to his sister. PW-4 Priyanka had also deposed on the same lines. This conduct of the accused is very relevant. He did not seek any help from anyone. The location of house of PW-1 is such that it is surrounded by people. Since it was the first floor where incident occurred, there would be other residents in the building as well but he did not make any hue and cry. Any prudent man would not behave in the manner in which accused did and his conduct points out towards his guilt and leads to no other conclusion.
106. The facts relevant to the cause of Pooja's death being known only to accused Rahul, yet he chose not to disclose them or to explain them. The principle laid down in Section 106 of SC no.441519/2016 Page No. 47 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village Indian Evidence Act is clearly applicable to the facts of the case. Accused refused to state such special facts either by putting his defence to prosecution witnesses during their cross examination or by offering any explanation even while recording his statement under Section 313 CrPC. He did not opt to lead any defence evidence. Hence, his failure to offer any explanation as to what happened between 3.00 pm to 3.45 pm on 24.08.2016 drives this Court to draw a different inference and hence this is an additional link to complete the chain of circumstances established by prosecution, which leads to one and only conclusion pointing towards the guilt of accused. In these circumstances, no other hypothesis, except the one that accused Rahul alongwith 'R' (JCL), in furtherance of their common intention, committed murder of deceased, is possible.
Recovery of ligature materials
107. Two ligature materials are stated to have been recovered from the spot i.e. one gumchha and one chunni. The gamchha was seized by PW-6 ASI Birender. PW-6 ASI Birender had deposed that after visiting the hospital, the crime team was informed. SHO and other staff came to the hospital and thereafter they went to the house where crime team also reached. Crime team clicked the photographs. There was one white colour towel (gamchha or towel used interchangeably in the deposition of prosecution witnesses as well as in the seizure memo Ex.PW6/2) found on the bed in the said house which was taken into custody by him. The said towel was seized by him by putting the same in a white cloth. It was not suggested to this SC no.441519/2016 Page No. 48 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village witness that no such towel was ever seized by him or said towel (gamchha) was planted on the crime scene. Pw-6 in his cros examination has stated that he seized the towel after crime team reached at the spot.
108. The statement of PW-6 is endorsed by PW-9 Ct. Sandeep. PW-9 Ct. Sandeep had deposed that he was posted as photographer in the mobile crime team and he took six photographs of the crime scene as well as in the hospital. The said six photographs were duly proved as the negatives were produced by the said witness. The photographs have been exhibited as Ex.PW9/A1 to Ex.PW9/A6. Perusal of these photographs would show that the photograph numbered as A2 is found to be of the spot i.e. the crime scene and one white colour towel (gamchha) is found lying on the said bed. Therefore, recovery of this gamchha from the bed where deceased was found lying, stands duly established.
109. It is further the case of prosecution that the accused was arrested and a chunni was got recovered at the instance of accused Rahul from the bed in the house of the complainant and was seized by IO. Complainant i.e. PW-1 deposed that accused was arrested in his presence and chunni was recovered by the police at the instance of accused Rahul. The record shows that there are certain discrepancies with respect to time and arrest of accused, however, ocular testimony of PW-1 and IO on the aspect of recovery is consistent. Ld. counsel for accused had argued that since the seal of ligature materials i.e. chunni and SC no.441519/2016 Page No. 49 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village gamchha were opened without showing it to the Court during the testimony of PW-1, therefore this recovery becomes doubtful.
110. In this regard, it is relevant to note that MHC(M) produced the case properties during the evidence of PW-1 on 04.03.2017. Court observed that "Seals were opened without first showing to the undersigned". However, from the testimony and the proceeding sheet of that day, it is seen that ld. counsel for accused was duly present at the time when seals were opened. Even after the said Court observation was made, no suggestion was put either to the IO (PW-14) or to PW-1 regarding non- recovery of chunni at the instance of accused Rahul or seizure of towel (gamchha) from the crime scene/spot by PW-6 ASI Birender. Hence, the said recovery of chunni and seizure of gamchha stands duly proved.
Medical Evidence
111. PW-12 Dr. Sarah, who was working in Bhagat Chandra Hospital and was discharging her duty in Casualty on 24.08.2016, had deposed as under:
"On 24.08.2016, I was posted and working as Trainee in the Bhagat Chandra Hospital, F1/1, Mahavir Enclave, New Delhi. On that day I was discharging my official duty in casualty and on that day at around 5.35 pm one patient Pooja Solanki aged about 20 years was brought in casualty in unconscious state by one Pushpa (neighbour of Pooja Solanki). The said patient was medically examined by me as at that time patient Pooja Solanki was frothing from mouth and ligature mark seen in anterior neck. During her medical examination it was medically observed that her pulse, B.P. and respiratory SC no.441519/2016 Page No. 50 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village system were not responding, pupil fixed dilated, temperature cold and ECG straight line and as per the aforesaid medical condition/observation of said patient she was declared dead. Police was called and body was handed over to them. The whatsoever I had medically observed regarding the said deceased, the same was reduced into writing in casualty death record. The original of the same is on record and the same is Ex. PW- 12/A bearing my signatures at point A with the seal of the hospital.
The said patient was medically examined by me with the assistance of Dr. Avinash and MLC of said patient was prepared by Dr. Avinash.
Dr. Avinash has left his services from Bhagat Chandra Hospital. However I am well conversant with his handwriting and signature as I had worked with him in official capacity. The original MLC of Pooja Solanki is on record which I have seen and correctly identified to be the MLC of Pooja Solanki prepared by Dr. Avinash. The said MLC is Ex. PW-12/B bearing signatures of Dr. Avinash at point X."
112. From her testimony, it is clear that she had personally examined the deceased though the MLC was prepared by Dr. Avinash. She was posted in casualty. There is no reason to disbelieve the testimony of this witness with respect to the medical examination of the deceased.
113. PW-13 Dr. Jatin Bodwal had conducted the postmortem of deceased Pooja and had proved his postmortem report as Ex.PW13/A, which is reproduced as under:-
"EXTERNAL EXAMINATION : External Injuries
1. Dark reddish coloured transverse ligature mark, SC no.441519/2016 Page No. 51 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village 32cm in length, present completely all around the neck. In the front of the neck ligature mark was present 7 cm below the chin and 10 cm above sternal notch and was 2.5 cm wide. On the right side of neck, ligature mark was present 4 cm below the mastoid process and was 2.5cm wide. On the left side of the neck, ligature mark was present 3 cm below the mastoid process and was 2cm wide. The total neck circumference was 32 cm.
2. Reddish coloured pressure abrasion 5 cm x 2 cm was present on the chin 4cm below the lower lip.
INTERNAL EXAMINATION.
A-HEAD A-Scalp Subscalp congested.
B- Skull : NAD C- Brain, Meninges & Vessels: Congested and Oedematous.
D- Base of skull: Intact.
E-NECK
1. Hyoid Bone/Thyroid Cartilage / Cricoid Cartilage / Tracheal Rings & Mucosa / Any Foreign Body in Trachea: On incision and dissection of neck, extravasations of blood and clots seen underneath the ligature mark, underlying tissue of neck and muscles. Hyoid bone and all cartilages of neck are intact. Mucosa of tracheal lumen is congested and tracheal lumen contains froth.
2. CHEST (THORAX)
1. Ribs and Chest Wall : NAD
2. Oesophagus : NAD
3. Pleural Cavities : NAD
4. Lungs : Both lungs congested and oedematous.
5. Heart and pericardial sac : Congested
6. Large blood vessels : NAD F- ABDOMEN
1. Abdominal wall : NAD
2. Peritoneal Cavity : NAD SC no.441519/2016 Page No. 52 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village
3. Stomach:
a. Contents : About 50 ml semi digested food. b. Mucosa : NAD c. Abnormal Smell : None
4. Small intestine : Distended with gases.
5. Large intestine, vermiform appendix : Distended with gases.
6. Liver, gall bladder, biliary passages : Congested.
7. Spleen : NAD.
8. Kidney, renal pelvis, and urethra : Congested.
GENITAL ORGAN
1. Urinary Bladder : Empty
2. Rectum : Empty
3. Genital organs : NAD
4. Uterus : Empty SPINAL COLUMN: Intact Preserved Items: Clothes of deceased preserved, sealed with seal of "PM DDUH" and handed over to IO along with sample seal.
OPINION:
1. TIME SINCE DEATH: Approx. 12 hours to one day prior to post-mortem examination.
2. The cause of death is asphyxia via injury no. 1 which is sufficient to cause death in ordinary course of nature. Injury no. 1 and 2 are fresh in duration, ante mortem in nature and caused by some ligature material.
3. Manner of death is Homicidal.
4. Total No. of inquest papers: Fifteen (15) papers with enclosed with signature."
114. The postmortem on the dead body of Pooja was conducted on the next day of incident and therefore, there was no delay in conducting the postmortem. No suggestion was put to PW-13 Dr. Jatin Bodwal with respect to the opinion given by him on the SC no.441519/2016 Page No. 53 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village cause and manner of death. PW-13 Dr. Jatin Bodwal had also given subsequent opinion on the ligature materials i.e. gamccha and chhuni produced by the IO and the subsequent opinion has been exhibited as Ex.PW13/B. In his subsequent opinion, PW-13 has opined as under:-
"Subsequent Opinion regarding consistency of ligature material with ligature mark sustained on the body of deceased Pooja Solanki W/o Rahul Solanki vide PM no. 1394/2016 dated 25.08.2016 On dated 08.11.2016 Insp. Meena Yadav, submitted an application along with weapon of offence i.e. ligature material, PM report and Road certificate No. 150/21 / 16 seeking subsequent opinion regarding consistency of ligature material with the ligature mark sustained on the body of deceased as mentioned above.
IO produced two sealed parcels in white clothes (sealed with seal of "BSY" & "MY"), on opening the same, one chunni and one gamccha were found.
On examination of the above mentioned ligature materials, following details were observed:-
1. One greenish pink coloured chunni having golden flowers prints on it. Its dimensions are Length 198 cm, breadth 96 cm and width 2.5cm.
2. One white coloured gamccha having border of red and green colour. Their dimensions are, length 163 cm, breadth 87cm and width 2.5 cm.
Query asked by the IO:-
1. Whether ligature mark which was found on the neck of deceased could be caused by the recovered chunni or gamecha?SC no.441519/2016 Page No. 54 of 58
State vs. Rahul Kumar FIR no.325/2016, PS Palam Village Ans. Injury no. 1 & 2 which was mentioned in PM report no. 1394/16 are possible by both examined ligature materials individually."
115. During the cross examination of PW-13, ld. counsel for the accused had put a question as to whether these ligature marks could be caused by some other material and he had replied in affirmative.
116. Since it has been proved that the death of the deceased was caused by strangulation, it is immaterial whether it was caused by chunni or by gamchha order by any other ligature material. It is not at all fatal to the prosecution. Therefore, it stands duly established from the evidence that PW-13 and PW-14 that deceased was murdered by strangulation.
117. During the course of arguments, ld. counsel for accused had pointed out certain discrepancies in the arrest of the accused, time of recovery of the ligature material i.e. chunni and discrepancies in time with respect to preparation of the documents during investigation by police official/IO.
118. Since the case of the prosecution has been proved beyond reasonable doubt on material aspects, therefore some procedural minor faults, as pointed above, are not fatal to the case of the prosecution. In this regard, reliance is placed on C.Muniappan vs. State of T.N. (2010) 9 SCC 567 wherein it was held as under:
"55. There may be highly defective investigation in a case. However, it is to be examined as to whether SC no.441519/2016 Page No. 55 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation."
119. In the case Sunil Kundu vs. State of Jharkhand (2013) 4 SCC 422, it was held as under:
"29...It is true that acquitting the accused merely on the ground of lapses or irregularities in the investigation of a case would amount to putting premium on the deprecable conduct of an incompetent investigating agency at the cost of the victims which may lead to encouraging perpetrators of crimes. This Court has laid down that the lapses or irregularities in the investigation could be ignored subject to a rider. They can be ignored only if despite their existence, the evidence on record bears out the case of the prosecution and the evidence is of sterling quality. If the lapses or irregularities do not go to the root of the matter, if they do not dislodge the substratum of the prosecution case, they can be ignored...."
120. In the case Hema vs. State (2013) 10 SCC 192, it was held SC no.441519/2016 Page No. 56 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village as under:
"18. It is clear that merely because of some defect in the investigation, lapse on the part of the investigating officer, it cannot be a ground for acquittal. Further, even if there had been negligence on the part of the investigating agency or omissions, etc. it is the obligation on the part of the court to scrutinise the prosecution evidence dehors such lapses to find out whether the said evidence is reliable or not and whether such lapses affect the object of finding out the truth."
121. To sum up, the ocular testimony of prosecution witnesses, especially PW-1 to PW-4 who proved the motive to commit crime, the fact that deceased was seen alive till 3.00 pm on 24.08.2016 and was found lying on the bed at 3.45 pm, presence of the accused with 'R' (JCL) when deceased was alive and his presence when deceased was found not responding coupled with his failure to offer a reasonable explanation disclosing the facts within his special knowledge about the cause and manner of death of deceased, as also the medical evidence which proves that death of deceased was homicidal and she was murdered by strangulation, clearly points out towards the guilt of accused Rahul.
122. The circumstances on which the foundation of prosecution case rests have been duly proved beyond reasonable doubt. Prosecution has been able to successfully connect all the dots which leads only to one conclusion pointing towards the guilt of accused, making any other hypothesis impossible.
SC no.441519/2016 Page No. 57 of 58State vs. Rahul Kumar FIR no.325/2016, PS Palam Village
123. Though the trial of 'R' (JCL) has taken place separately and prosecution has not placed the judgment on record, however, in view of clinching testimonies of PW-1 to PW-4, it has been established beyond reasonable doubt that accused alongwith 'R' (JCL), in furtherance of their common intention, have committed murder of deceased Pooja by strangulation.
124. Hence, accused Rahul Kumar is convicted for the charges for the offence under Section 302/34 IPC.
Digitally signed by VANDANAAnnounced in open court VANDANA JAIN
on 27.02.2024 JAIN Date: 2024.02.27
12:26:39 +0530
(Vandana Jain)
ASJ-03 & Special Judge (Companies Act)
Dwarka Courts (SW)/New Delhi/27.02.2024 Note: This judgment contains fifty eight (58) pages and having my signature on each page. Digitally signed by VANDANA VANDANA JAIN JAIN Date: 2024.02.27 12:26:47 +0530 (Vandana Jain) ASJ-03 & Special Judge (Companies Act) Dwarka Courts (SW)/New Delhi/27.02.2024 SC no.441519/2016 Page No. 58 of 58 State vs. Rahul Kumar FIR no.325/2016, PS Palam Village