Delhi District Court
Fir No. 34/06 ; State vs . Radhey Shyam Page 1 Of 23 on 25 October, 2010
IN THE COURT OF SH. RAVINDER DUDEJA : ADDL.
SESSIONS JUDGE-03:NW:ROHINI:DELHI
SESSIONS CASE NO. 17/08.
FIR No. 34/06
P.S: Tilak Nagar.
U/S: 302 IPC
STATE
Versus
RADHEY SHYAM
s/o Sh. Ramdin
r/o village Khokhipur,
PS Dhamour, PO Aliganj Bazar
Distt. Sultanpur, UP
Present Add:
WZ-12A, Village Chowkhandi, Delhi
Date of Institution : 18/04/2006
Date of Argument : 11/10/2010
Date of Judgment : 25/10/2010
JUDGMENT
1. Prosecution case is that in the night of 18/19.01.2006 at about 3.45 am at Police Station Tilak Nagar, an unknown person gave a telephonic information that a lady was lying dead at WZ-12, Chaukhandi Village. On this information, DD No. 27-A was recorded. On receipt of DD No. 27-A, SI Jaipal and Constable Vinod proceeded towards the spot on private scooter. When they reached at the corner of Nigam Bal Vidyalaya, FIR No. 34/06 ; State Vs. Radhey Shyam Page 1 of 23 Chaukhandi, an auto driver Joginder Singh stopped them. Accused Radhey Shyam was sitting in his TSR. Joginder Singh informed SI Jaipal that Radhey Shyam had killed his wife. SI Jaipal took accused and Joginder Singh at the house of accused at Chaukhandi Village where they found the body of Smt. Pooja, wife of accused lying on the floor with mark of rope in her neck and injury near her lips. Foam was coming out of her nose. SI Jaipal Singh recorded the statement of TSR driver Joginder Singh wherein he stated that in the night of 18/19.01.2006 at about 3.00 am while he was waiting for passengers at the bus stand of Khayala, accused Radhey Shyam came and told that he has killed his wife because her character was not good and that her body was lying at his house and that the body was to be thrown near Najafgarh Nala. He stated that accused had offered him Rs. 300/- for this work. He then took accused Radhey Shyam in his TSR No. DL1R-H-0827 and that on reaching the corner of Nigam Bal Vidyalaya, he informed about the same to SI Jaipal. On the statement of Joginder Singh, Rukka Exbt. PW-8/A was prepared by SI Jaipal which was sent to Police Station through Constable Vinod. On the basis of Rukka, FIR was registered and further investigation was taken up by Inspector O.D. Yadav. During investigation, Inspector O.D. Yadav visited the spot and got the spot inspected through crime team. The body was sent to Mortuary, DDU Hospital for postmortem. After postmortem, viscera was preserved. Accused was arrested. His disclosure statement was recorded. Accused got recovered a piece of rope from a Khandhar near WZ-12-A, Chaukhandi Village. The rope was kept in a cloth pullanda and was sealed with the seal of ODY.
FIR No. 34/06 ; State Vs. Radhey Shyam Page 2 of 23On 02.02.2006, scaled site plan was prepared by SI Mahesh Kumar, Draftsman. Rope was shown to the doctor for opinion. After examination of the rope, doctor gave the opinion that ligature mark observed around the neck of the deceased were possible by the said rope and the rope was strong enough to cause death. On completion of investigation, charge sheet was filed against the accused under Section 302 IPC.
2. After compliance of Section 207 Cr. PC, the case was committed to Sessions Court. Charge under Section 302 IPC was framed against the accused to which, he pleaded not guilty.
3. In order to prove its case, prosecution examined 16 witnesses. PW-1 is Joginder Singh. He is the complainant. He has proved the statement given to the police as Exbt. PW-1/A. PW-2 is Satpal Singh. He is the owner of the factory where accused and his wife were working. He deposed that on 18.01.2006, Smt. Pooja, wife of accused left the factory at about 7.30 pm and accused left the factory at about 8.40 pm. He stated that after 15-20 minutes, accused again came at his factory but he was perplexed and told that his wife had committed suicide by hanging herself with the help of a rope and therefore he advised the accused to visit police station along with his uncle and not to touch the dead body. Immediately thereafter, he left the factory and again visited the factory at 10.30 pm under the influence of liquor and on enquiry, accused told that he had not informed the police and also told that he had cut the rope and the body was FIR No. 34/06 ; State Vs. Radhey Shyam Page 3 of 23 lying on the floor. He again advised the accused to visit the police station. Thereupon, accused left the factory saying that he is going to police station. Next day at about 2.00 - 2.30 am, police came at his residence with accused and he accompanied the police officials to the residence of accused where he found the body of Pooja lying on the floor in a room. He further stated that his statement was recorded by the police on 20.01.2006 regarding identification of body of Pooja. He proved the arrest memo of accused as Exbt. PW-2/C and also proved the disclosure statement given by him as Exbt. PW-2/E. PW-2 was declared hostile by the prosecution and was cross examined by the learned Additional PP. He admitted that accused Radhey Shyam had asked for money from him when he met him in the factory at about 10.30 pm but denied that accused had told him that he had committed the murder of his wife by strangulating her with the help of a rope as she was not having good character. He denied that accused had asked for money as he wanted to dispose off the body in a Nala.
PW-3 is Deep Chand, owner of house No WZ-12, Chaukhandi Village. He deposed that accused Radhey Shaym was his tenant in one room in his house and that accused and his wife were working in a private factory. He stated that accused and his wife used to leave the room in the morning and used to come back during late hours.
PW-4 is SI Daya Nand, Duty Officer. He proved the FIR Exbt. PW-4/A. He has also proved DD No. 29-A Exbt. PW-
FIR No. 34/06 ; State Vs. Radhey Shyam Page 4 of 234/C, DD No. 30-A Exbt. PW-4/D and DD No. 27-A as Exbt. PW-
4/E.
PW-5 is SI Mahesh Kumar, Draftsman. He had
prepared the scaled site plan Exbt. PW-5/A at the instance of SI Jaipal Singh.
PW-6 is Smt. Surasti, mother of the accused. She had identified the body of Pooja and gave the statement Exbt. PW-6/A regarding the identification of the body.
PW-7 is Bhagat Raj Tiwari. He belongs to the native village of the accused. He had telephonically informed the mother of the accused.
PW-8 is Retired SI Jaipal Singh. He deposed that in the night of 18/19.01.2006, on receipt of DD NO. 27-A Exbt. PW- 4/E, he along with Constable Vinod were going to house No. WZ- 12, Chaukhandi Village and when they reached near primary school, Village Chaukhandi, a TSR driven by Joginder Singh came from opposite side and the TSR driver gave signal to them. Accused Radhey Shyam was sitting in the TSR. Joginder Singh told them that accused Radhey Shyam, who was sitting in the TSR, had committed the murder of his wife and had hired the TSR to throw the dead body of his wife in a Nala at a fare of Rs. 300/-. Then he along with Constable Vinod Kumar reached at house No. WZ-12, Village Chaukhandi. Joginder Singh also accompanied him in the TSR along with the accused. On entering the house FIR No. 34/06 ; State Vs. Radhey Shyam Page 5 of 23 along with accused, they found the body of a female lying on the floor on a Dari. Accused told that the body was that of his wife Pooja. There were ligature marks on the neck of the body and foam was coming from the nose of the body. He recorded the statement of Joginder Singh and made endorsement Exbt. PW- 8/A and sent the Rukka to police station through Constable Vinod.
PW-9 is Constable Rajinder Kumar. He took four sealed parcels and Form FSL from the Malkhana of the police station to CFSL Kolkata but the same could not deposited and therefore he handed back the sealed parcels and Form FSL to MHCM.
PW-10 is SI Lalit Kumar from Mobile Crime Team. He had inspected the spot but found no chance prints. His detailed report is Exbt. PW-10/A. PW-11 is Constable Murli Singh. He had deposited four sealed parcels and two sample seals at CFSL Kolkata vide RC No. 317/21.
PW-12 is HC Jaibir Singh, Crime Team Photographer. He had taken the photographs of the body and the spot from different angles. He proved the photographs Exbt. PW- 12/1 to Exbt. PW-12/4 and their negatives as Exbt. PW-12/5 to Exbt. PW-12/8.
PW-13 is Inspector Pratap Singh. During investigation, he sent the exhibits to CFSL through Constable FIR No. 34/06 ; State Vs. Radhey Shyam Page 6 of 23 Murli Singh, recorded the supplementary statement of Joginder Singh and Satpal Singh.
PW-14 is HC Munish Pal, the then MHCM. He proved the relevant entries of Register No. 19.
PW-15 is Inspector O.D. Yadav. During investigation, he called the crime team at the spot, got the spot photographed, recorded the statement of SI Jaipal and supplementary statement of complainant Joginder Singh. He prepared the site plan Exbt. PW-15/A on the pointing out of Joginder Singh and SI Jaipal. He had arrested the accused. He had got conducted the postmortem of the deceased and after postmortem, handed over the body to Smt. Surasti vide receipt Exbt. PW-2/B. He had seized the blood sample, viscera, specimen scalp hair of the deceased and steenum bone of foetus for DNA finger printing and the sealed pullanda containing the clothes of the deceased vide memo Exbt. PW-15/B. He had recorded the disclosure statement of accused and on his pointing out, recovered a piece of rope which was kept in a pullanda and was sealed with the seal of ODY and was seized vide pointing out cum seizure memo Exbt. PW-15/C. He obtained the opinion of the doctor regarding seized rope and sent the exhibits to CFSL Kolkata.
PW-16 is Constable Vinod. He was with SI Jaipal when auto driver Joginder Singh met them and informed that accused Radhey Shyam had committed the murder of his wife. He stated that on interrogation, accused had informed that he had FIR No. 34/06 ; State Vs. Radhey Shyam Page 7 of 23 killed his wife with rope as he suspected her character. He had taken the Rukka to police station for the registration of the FIR.
Dr. B.N. Mishra has been wrongly numbered as PW-
16. He proved the postmortem report which was prepared by Dr. Pooja Rastogi as Exbt. PW-16/A. According to him, cause of death was Asphyxia as a result of ligature strangulation. He further stated that Dr. Pooja Rastogi had given subsequent opinion regarding the weapon of offence/ligature material and that as per opinion Exbt. PW-16/B, ligature mark observed around the neck of the deceased was possible by recovered jute rope and the rope was strong enough to cause death.
4. Statement of accused was recorded wherein he denied all the incriminating evidence. He stated that he is innocent. According to him, his wife left the factory at about 7.30 pm and that at about 8.40 pm when he came at his house, there was no light and found his wife lying on the floor in an unconscious condition and on seeing this, he immediately rushed to his factory to inform the factory owner about the incident and on his advice, he went to Khayala Chowki to inform the police but he was made to sit in the Chowki and later on falsely implicated in this case. He stated that he does not know the cause of death of his wife.
5. I have heard Ld. APP for State and Ms. Sadhna Bhatia, Advocate Amicus Curiae for accused. The record has been perused.
6. In the adversarial system adopted by India, every FIR No. 34/06 ; State Vs. Radhey Shyam Page 8 of 23 person accused of an offence is always presumed to be innocent so that burden lies upon the Prosecution to establish beyond reasonable boubt that all the ingredients of the offence with which the accused is charged are made out. The accused enjoys the right to silence. There is no burden laid on the accused to prove his innocence and it is sufficient for him to raise a doubt, as to his guilt.
7. Section 300 IPC deals with murder. It reads as under:-
300. Murder:-
Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death; or 2ndly--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly--It it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1.........
Exception 2.........
Exception 3.........
Exception 4.........
Exception 5.........FIR No. 34/06 ; State Vs. Radhey Shyam Page 9 of 23
In Section 300 IPC, the definition of culpable homicide appears in an expanded form. Each of the four clauses requires that the act which causes death should be done intentionally, or with the knowledge or means of knowing that death is a natural consequence of the act. An offence cannot amount to murder unless it falls within the definition of culpable homicide; for this section merely points out the cases in which culpable homicide is murder. Putting it shortly, all acts of killing done:-
i) with the intention to kill, or
ii) to inflict bodily injury likely to cause death, or
iii) with the knowledge that death must be the most probable result, are prima facie murder, while those committed with the knowledge that death will be a likely result are culpable homicide not amounting to murder.
8. There is no eyewitness to the occurrence and entire prosecution rests on the circumstantial evidence. A fact in issue can be proved either by direct evidence or circumstantial evidence. Direct evidence means any fact which without the intervention of any other fact proves the existence of a fact in issue. In very few cases, direct evidence of facts is available. Criminals lay their plot in secret. They execute it ruthlessly under the cover of darkness of secrecy. They silence their victim altogether and do not leave any trail of evidence behind. In such cases, the main event will have to be reconstructed before the Court with the help of the surrounding circumstances such as the cause or the effects of the event. Circumstances sometimes speak as forcefully as does the direct evidence.
FIR No. 34/06 ; State Vs. Radhey Shyam Page 10 of 239. The conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence. Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be closely connected with the principal fact sought to be inferred from those circumstances. Where the case depends upon the conclusions drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
10. The Evidence Act does not insist upon absolute proof for the simple reason that perfect proof in this imperfect world is seldom to be found. That is why under Section 3 of the Evidence Act, a fact is said to be "proved" when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This definition of "proved" does not draw any distinction between circumstantial and other evidence. Thus, circumstantial evidence in order to furnish a basis for conviction requires a high degree of probability, that is, so sufficiently high that a prudent man considering all the facts, feels justified in FIR No. 34/06 ; State Vs. Radhey Shyam Page 11 of 23 holding that the accused has committed the crime.
11. The law relating to circumstantial evidence is more or less settled. The Apex Court laid down the following principles:-
"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully 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 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 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 that act must have been done by the accused."
These five golden principles, constitute the Panchsheel of the proof of a case based on circumstantial evidence."
12. The question which further needs consideration is what does expression "beyond reasonable doubt" in a case which rests on circumstantial evidence signify. Does it mean that Prosecution is required to prove its case with 100 per cent certainty? It was observed in the case of Lal Singh Vs. State of Gujrat AIR 2001 SC 746 as under:-
"Ld. Senior counsel Mr. Sushil Kumar submitted that Prosecution has not proved beyond reasonable doubt all the links relied upon by it. In our view, to say that Prosecution has to prove the case with a 100 per cent certainty is a myth."FIR No. 34/06 ; State Vs. Radhey Shyam Page 12 of 23
13. Ld. APP has argued that there is no eyewitness of occurrence in the present case as the murder took place in the house of accused. It is stated that entire Prosecution case rests upon the circumstantial evidence and the Prosecution by appropriate evidence has proved the guilt of accused which rules out that any other person was author of crime. It is argued that PW1 is the witness before whom the accused made extra judicial confession and PW8 and PW16 are the witnesses of recovery of rope at the instance of accused which was used for the purpose of strangulation. On the other hand, Ld. Amicus Curiae has argued that Prosecution has failed to prove its case beyond reasonable doubt so as to indicate that accused was the author of the crime by excluding the possibility of involvement of any other person. It is further submitted that Prosecution has also failed to prove the motive of offence and the alleged extra judicial confession made to a stranger cannot be relied upon.
14. In a case of circumstantial evidence, motive bears important significance. The defence has argued that Prosecution has failed to establish the motive for commission of offence. Accused was arrested on 19-01-2006. He was interrogated by PW15 Inspector O. D. Yadav. He recorded disclosure statement of the accused which is Ex. PW2/E. In his disclosure statement given before the police, the accused stated that his wife used talk to the workers of the factory despite being stopped by him and due to this reason quarrel took place between him and his wife many time in the factory and this tension always remained in his mind. He stated that he had been persuaded by his wife since last FIR No. 34/06 ; State Vs. Radhey Shyam Page 13 of 23 four days but instead of understanding, she used to quarrel with him and was not cooking food. He has further stated that on 18- 01-2006 at about 8:40 pm when he came at his house, he asked his wife to serve food to him but she told him that she had not cooked the food and also told him that she was leaving him and told him that he was impotent as a result of which he became annoyed and picked up a rope and strangulated his wife Pooja causing her death. The disclosure statement Ex. PW2/E made by the accused before a police officer is inadmissible in law being hit by Section 24 of Indian Evidence Act.
15. It appears from the disclosure statement Ex. PW2/E that accused was suspecting the character of his wife and therefore committed her murder. In order to prove the motive, Prosecution has examined PW2 Satpal Singh, owner of the factory but he has turned hostile. In cross-examination conducted by Ld. APP, he denied having told to the police that accused was having suspicion on his wife as she used to talk with other male workers of the factory or that he used to quarrel with his wife. Thus, PW2 has not supported the Prosecution so far as motive is concerned. No other witness has been examined who could prove the motive. Thus, there is no evidence to establish the motive on the part of accused. The motive is therefore not established.
16. In case of circumstantial evidences motive bears important significance. Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act FIR No. 34/06 ; State Vs. Radhey Shyam Page 14 of 23 wholly without motive. The failure to discover the motive of an offence does not signify its non-existence. The existence of motive assumes significance through the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never indispensable for conviction. When facts are clear, it is immaterial that no motive has been proved. The absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case.
17. It was observed in case State of U.P. Vs. Babu Ram, 2000 (11) AD 285 as under:-
"Motive is a relevant factor in all criminal cases whether based on the testimony of eye witnesses or circumstantial evidence. The question in this regard is whether prosecution must fail because it failed to prove the motive or even whether inability to prove motive would weaken the prosecution to any perceptible limit. No doubt, if the prosecution proves the existence of a motive it would be well and good for it, particularly in a case depending on circumstantial evidence, for, such motive could then be counted as one of the circumstances. However, it cannot be forgotten that it is generally a difficult area for any prosecution to bring on record what was in the mind of the respondent. Even if the Investigating Officer would have succeeded in knowing it through interrogation that cannot be put in evidence by them due to the ban imposed by law.
In this context we would reiterate what this court has said about the value of motive evidence and the consequences of FIR No. 34/06 ; State Vs. Radhey Shyam Page 15 of 23 prosecution failing to prove it, in Nathuni Yadav Vs. State of Bihar, [1998 (9) SCC 238] and State of Himachal Pradesh Vs. Jeet Singh, [1998 (4 SCC 370)]. Following passage can be quoted from the latter decision:
"No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental imposition of an offender towards the person whom he offered."
Thus failure to prove the motive cannot be said to be fatal to the Prosecution case.
18. Prosecution is also relying on the extra judicial confession of accused made to PW1 Joginder Singh.
19. The term "confessions" is not defined in the Evidence Act. All the provisions relating to confessions occur under the heading of "admission." The definition of "admission" as given in Section 17 becomes applicable to confession also. Section 17 defines admission as "a statement oral or documentary, which suggest any inference as to any fact in issue or relevant fact." A confession is a statement made by a person charged with crime suggesting an inference as to any facts in issue or as to relevant facts. The inference that the statement should suggest should be that he is guilty of the crime.
FIR No. 34/06 ; State Vs. Radhey Shyam Page 16 of 2320. Confession in common acceptation means and implies acknowledgment of guilt - its evidentiary value and its acceptability however shall have to be assessed by the Court having due regard to the credibility of the witness. In the event however, the Court is otherwise in a position having due regard to the attending circumstances believes the witness before whom the confession is made and is otherwise satisfied that the confession is in fact voluntary and without there being any doubt in regard thereto, an order of conviction can be founded on such evidence.
21. Confessions may be divided into two classes i.e. judicial and extra-judicial. Judicial confessions are those which are made before a Magistrate or a court in the course of judicial proceedings. Extra-judicial confessions are those which are made by the party elsewhere than before a Magistrate or court. Extra- judicial confessions are generally those that are made by a party to or before a private individual. There is no rule that extra judicial confession cannot be relied upon unless corroborated by other evidence.
22. In case of State of Uttar Pradesh Vs. M.K. Anthony, 1985 Crl. L J 493 held as under:-
"There is neither any rule of law nor of prudence that evidence furnished by extra-judicial confession cannot be relied upon unless corroborated by some other credible evidence. The Courts have considered the evidence of extra judicial confession a weak piece of evidence. If the evidence about extra judicial confession comes from the mouth of witness/witnesses who appear to be unbiased, not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to FIR No. 34/06 ; State Vs. Radhey Shyam Page 17 of 23 indicate that he may have a motive for attributing an untruthful statement to the accused; the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is a perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, if it passes the test, the extra judicial confession can be accepted and be the basis of a conviction. In such a situation, to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extra judicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and a conviction can be founded thereon."
23. In case of Narayan Singh and others Vs. State of M.P. AIR 1985 SC 1678 expressly observed that it is not open to any court to start with a presumption that extra judicial confession is a weak type of evidence. It was observed:
"The Learned Sessions Judge has brushed aside their evidence by presuming that their statements constituting an extra judicial confession is a very weak type of evidence. This is a wrong view of the law. It is not open to any court to start with a presumption that extra judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession."
24. In Baldev Raj Vs. State of Haryana, AIR 1991 SC 37, it was held that:-
"An extra judicial confession, if voluntary, can be relied upon by the Court along with other evidence in convicting the accused. The value of the evidence as to the confession depends upon the veracity of the witnesses to whom it is made. It is true that the Court requires the witness to give the actual words used by the accused as nearly as possible but it is not an invariable rule that the Court should not accept the evidence, if not the actual words but the substance were given. It is for the Court having regard to FIR No. 34/06 ; State Vs. Radhey Shyam Page 18 of 23 the credibility of the witness to accept the evidence or not. When the Court believes the witness before whom the confession is made and it is satisfied that the confession was voluntary, conviction can be founded on such evidence."
25. In case of Chattar Singh Vs. State of Haryana, 2008 (4) RCR (Cri) 674, it was held:
"An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility."
26. The Prosecution has cited two witnesses of extra judicial confession, one being PW1 Joginder Singh, the TSR driver and the other being Satpal Singh, factory owner (PW2). As discussed, PW2 has turned hostile. In cross-examination, he FIR No. 34/06 ; State Vs. Radhey Shyam Page 19 of 23 denied that accused had told him that he committed murder of his wife with the help of a rope as she was not having good character. Thus, the testimony of PW2 is of no help to the Prosecution but PW1 has deposed that in the night of 18/19-01-2006 at about 2:30
-3 am, he was standing at the bus stand of bus route no. 830 Khyala village with his TSR and was waiting for passengers. Accused came to him and requested to take his TSR for bringing the dead body of his wife which was lying at his residence at village Chaukhandi as the same was to be thrown in a Nala. Accused also told him that he had committed murder of his wife as she was of bad character. He was offered sum of Rs. 300/- for lifting the dead body and throwing the same in the Nala. PW1 identified the accused as the same person who had made the confession before him. He deposed that accused boarded his TSR and they proceeded towards the residence of accused and when they reached near Chand Nagar turn, police officials were found standing on a two wheeler scooter. He stopped them and narrated the whole facts which were told to him by the accused who was sitting in his TSR. He further deposed that one police official boarded the TSR and sat besides the accused and another police official drove his two wheeler scooter and on reaching the residence of accused, pointed out by him, they entered inside the house and found dead body of a female lying on the floor which was identified by the accused as the body of his wife. He stated that accused was under the influence of liquor and foam was coming from the nose and mouth of the lady and he had also noticed ligature marks on the neck of the body. Ld. Amicus Curiae has mainly argued that in the cross-examination PW1 has FIR No. 34/06 ; State Vs. Radhey Shyam Page 20 of 23 admitted that he knows many police officials of PS Tilak Nagar because he used to park his TSR at the bus stand of Khyala which is near to the Police Post. It is argued that PW1 is a stock witness of the police and has been planted to falsely implicate the accused. It is also argued that PW1 was not known to the accused and therefore it is highly improbable that accused would make any confession of murder before a stranger. On the other hand, Ld. APP has argued that there is no reason to disbelieve the testimony of PW1 who has proved the extra judicial confession regarding the murder given by the accused.
27. In his cross-examination, PW1 denied that he was called by the police officials at the Police Post to accompany with the accused. He denied that accused had come to the Police Post to lodge report that somebody committed murder of his wife. He denied that accused did not contact him for hiring TSR or for disposing the dead body.
28. SI Jaipal Singh and Ct. Vinod have corroborated the testimony of PW1 that he had told them that accused Radhey Shyam, who was sitting in his TSR, had committed the murder of his wife and had hired his TSR for throwing the body in a Nala. The presence of accused in the TSR of PW-1 is also proved by PW-8 SI Jaipal Singh and PW-16 Constable Vinod. SI Jaipal Singh and Constable Vinod denied the suggestion that Joginder Singh gave no statement to him or that he gave a false statement. In cross-examination, Ct. Vinod was asked as to whether he knew TSR driver Joginder Singh prior to 18/19-01-2006 but he stated FIR No. 34/06 ; State Vs. Radhey Shyam Page 21 of 23 that TSR driver Joginder was not known to him. SI Jaipal also stated in the cross-examination that he did not know the TSR driver prior to the date of incident. Therefore, it cannot be said that Joginder Singh is a stock witness of police who knew SI Jaipal and Ct. Vinod prior to the occurrence.
29. It has also come in the testimony of PW1, PW8 and PW16 that accused had got recovered the body of his wife from his residence. PW15 Inspector O. D Yadav and PW16 Ct. Vinod have also proved the recovery of rope Ex. P1 at the instance of accused. There is no cross-examination of PW15 and PW16 so much so that there is not even a suggestion to them that rope was not recovered at the instance of accused. As per postmortem report, the cause of death was asphyxia as a result of ligature strangulation and doctor gave the opinion after examination of rope Ex. P1. that ligature marks observed on the neck of the deceased were possible by the said rope and the rope was strong enough to cause death. There is no cross-examination of doctor with regard to opinion regarding the cause of death and regarding ligature material.
30. No doubt so far as PW1 Joginder Singh is concerned, he was stranger to the accused but it is evident from the confession given by the accused that he wanted to dispose off the dead body by throwing it in a Nala and therefore for that purpose he approached PW1 Joginder Singh by offering him Rs. 300/- for lifting the dead body and throwing the same in Nala. It appears that accused made the confession before PW1 as he immediately FIR No. 34/06 ; State Vs. Radhey Shyam Page 22 of 23 wanted to dispose off the body. In the case of State of AP Vs. Kanda Gopaludu AIR 2005 SC 3616, the acquittal on the ground that accused made extra judicial confession before stranger was held to be totally perverse and not proper.
31. In the present case, the extra judicial confession has come from the mouth of PW1 Joginder Singh who appears to be unbiased and not even remotely inimical to the accused, and in respect of whom nothing is brought out which may lead to indicate that he may have a motive for attributing an untruthful statement of the accused. The evidence of PW-1 does not suffer from any contradiction or omission. The fact that dead body was recovered at the instance of accused from his room is corroborative to the fact of extra judicial confession. In my view, the extra judicial confession has been given by the accused voluntarily and conviction can be founded on it.
32. The words spoken by PW1 are clear, unambiguous and unmistakably convey that accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it and the evidence of extra judicial confession made by the accused is accepted. I, therefore, hold the accused guilty and convict him u/s 302 IPC.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE: NW-03:ROHINI:DELHI ANNOUNED IN THE OPEN COURT ON 25.10.2010 FIR No. 34/06 ; State Vs. Radhey Shyam Page 23 of 23