Delhi High Court
Gautam Goswami vs State on 18 July, 2014
Author: Kailash Gambhir
Bench: Kailash Gambhir, Sunita Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: July 18, 2014
+ CRL.A. 428/1999
GAUTAM GOSWAMI ..... Appellant
Through Mr. Anshuman Sinha & Mr. Ajay
Vikram Singh, Advocates
versus
STATE ..... Respondent
Through Ms. Richa Kapoor, APP for the
State with Insp. Nipun Kumar, PS
Shakar Pur, Delhi
+ CRL.A. 602/1999
SMT. SANTOSH ..... Appellant
Through Mr. Anshuman Sinha & Mr. Ajay
Vikram Singh, Advocates
Versus
STATE (N.C.T. OF DELHI) ..... Respondent
Through Ms. Richa Kapoor, APP for the
State with Insp. Nipun Kumar, PS
Shakar Pur, Delhi
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE SUNITA GUPTA
JUDGMENT
KAILASH GAMBHIR, J
1. The institution of marriage can truly be called one of the most dynamic social institutions. It has been touted as an important stage in one's life and has been accorded a lot of importance historically. But CRL.A. Nos.428/1999 & 602/1999 Page 1 of 37 with the advent of time, change in social values has brought a great impact on such a pious institution and the ruthless reality in today's times is that maximum number of relationships is a failure. The reasons can be economic, social, behavioural difference, sexual incompatibility etc or otherwise some marriages suffer in silence but committing a crime and harming anyone to achieve one's motive of being with someone else is not a solution to legitimise an illicit relation. An illicit relation of one partner induces a sense of betrayal of trust and psychological distress in the other partner which may lead to aggressive consequences. No matter how tardy and cumbersome are the laws, but the ultimate recourse or solution for an unsuited relationship lies through legal means rather than putting an end to one's life to achieve some personal fulfilment. Such was the fate of Jaipal in the case at hand, who was killed by his wife and her boyfriend to gain their selfish means in order to spend their life together.
2. Challenge in these two appeals is to the impugned judgment dated 24.05.1999 and order on sentence dated 27.05.1999 passed by the learned Additional Sessions Judge, Shahdara, Delhi whereby both the appellants CRL.A. Nos.428/1999 & 602/1999 Page 2 of 37 have been convicted for the offence punishable under Section 302 read with section 34 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced them to undergo imprisonment for life alongwith a fine of Rs.5000/- each and in default of payment of fine to further undergo rigorous imprisonment for a period of one year each.
3. The germane case of the prosecution in brief is summarized as under:
"On 15.09.1996, at about 6:05 a.m., Shiv Charan Singh informed the police of PS Shakarpur on telephone that his son, Jai Pal has committed suicide. On this information DD 6A was recorded and a copy of it was assigned to HC Puran Chand for an immediate action in the matter. HC Puran Chand along with constable Bhagwan Sahai reached the spot. Insp. Tika Ram, SHO, PS Shakarpur along with Ct Kuldeep Singh also reached there. They found the dead body of Jaipal Singh lying in the gallery in front of the kitchen of house no. S-352C, School Block, Shakarpur, Delhi. There was a ligature mark on the neck of the dead body and a small abrasion over the right ankle joint. On questioning the brother and father of the deceased, they raised an accusing finger on the wife of the deceased, while Smt. Santosh, the wife of the deceased asserted that Jaipal Singh committed suicide owing to a property dispute. HC Puran Chand conducted the inquest proceedings and sent the body for Post Mortem examination. Doctor K. Goyal conducted the autopsy and opined that death was caused due to strangulation. On receipt of this report, rukka was recorded on 19.09.1996 and a case was got registered for an offence under section 302 of the Indian Penal Code. Investigation was taken up by Insp. Raj Kumar, additional SHO, PS Shakarpur. "CRL.A. Nos.428/1999 & 602/1999 Page 3 of 37
4. To prove its case, the prosecution examined as many as 16 witnesses. After the evidence was led by the prosecution, both the accused persons were examined under Section 313 Cr.P.C. Both of them denied the case of the prosecution and they pleaded their innocence and false implication. The accused Smt. Santosh in her statement took a defence that there was a property dispute between her husband and Shiv Charan (father of the deceased), and also the other brothers of the deceased. Prior to the date of incident, the deceased even had an argument with his father over the property. The co-accused Gautam Goswami took a defence that he was a tenant under Shiv Charan before the incident and at the time of taking the possession of the tenanted premises there was an exchange of argument between them. He also alleged that during the exchange of scorching argument, Shiv Charan alleged that the accused Gautam was having an illicit relationship with Smt. Santosh. He further stated that due to enmity he was falsely implicated in the case and was lifted by the police from his office. In defence the accused persons got examined two witnesses. CRL.A. Nos.428/1999 & 602/1999 Page 4 of 37
5. Addressing arguments on behalf of the appellants, Mr. Anshuman Sinha, Advocate vehemently contended that the appellants had been falsely implicated in this case by the prosecution on absolutely baseless and tenuous allegations of her having an illicit relationship with co- accused Gautam Goswami. Counsel also submitted that the case of the prosecution is based on circumstantial evidence and the prosecution has miserably failed to prove the complete chain of incriminating evidence to establish the guilt of the appellants in commission of the said crime. Counsel also submitted that none of the incriminating circumstances which were vital to the case of the prosecution were put to the accused at the time of recording of her statement under Section 313 Cr.P.C. These questions as per the counsel for the appellants which were not put to the accused inter-alia were regarding the purchase of Alprax by the accused persons and then to administer the same to the deceased; fact regarding manual strangulation of the deceased by the accused persons and thirdly, about the finger nail mark found on the neck of the deceased, was that of the accused persons.
CRL.A. Nos.428/1999 & 602/1999 Page 5 of 37
6. Counsel also submitted that the prosecution has also failed to prove the alleged illicit relationship between the appellant with the other co- accused Gautam Goswami. Counsel also submitted that the prosecution sought to prove the alleged illicit relationship of the appellant with the other co-accused based on the hearsay evidence of PW3, PW5, PW9 and PW11 and as per the settled legal position no weightage or credence can be given to the hearsay evidence. Counsel also invited our attention to the deposition of PW5 who in his cross-examination stated that his brother had told him about the illicit relationship of Santosh and Gautam Goswami about 5-6 months back prior to the incident. He also deposed that he had not seen Gautam Goswami and Santosh in any such manner which could indicate an illicit relationship between them. Counsel had also drawn attention of the court to the deposition of PW9 who stated that he had no personal knowledge whether the accused Santosh was having any relationship with the tenant or that if it was a rumour. Similarly in the deposition of PW11, it was stated that Jai Pal had told him about the illicit relationship between Gautam Goswami and Santosh and it was known to all the persons of the 'Mohalla' and that is how he CRL.A. Nos.428/1999 & 602/1999 Page 6 of 37 came to know about it. Counsel also argued that the prosecution also failed to prove any motive on the part of the appellant to commit the murder of her own husband. Counsel also submitted that no evidence has been produced by the prosecution to prove that the appellant and her husband were having a strained relationship.
7. Counsel thus submitted that in the absence of strong motive attributed to the appellant, she could not have taken steps of annihilating her own husband. Counsel further argued that the prosecution also failed to prove that the appellant had purchased Alprax medicine from a chemist shop as the owner of the chemist shop was never produced in the witness box. Counsel thus submitted that the best evidence was withheld by the prosecution.
8. Learned counsel for the appellant further argued that there is complete inconsistency in the statement given by PW-6 Munna Singh under Section 161 Cr. P.C. and his court deposition. Pointing out the contradiction, learned counsel for the appellant pointed out that Munna in his statement recorded under Section 161 Cr. P.C. stated that he gave CRL.A. Nos.428/1999 & 602/1999 Page 7 of 37 Alprax tablets himself to the deceased while in his court deposition the stand taken by him was that he gave the medicine to the owner and then the owner gave it to the deceased.
9. Learned counsel for the appellant also submitted that during his cross-examination, PW-6 Munna failed to disclose the date when the said medicine was purchased by the accused persons. The contention raised by learned counsel for the appellant was that this purchase of medicine from the chemist shop is the only evidence which can connect with both the accused persons and since the prosecution has failed to convincingly prove this fact that the said Alprax tablets were purchased by these accused persons, therefore the appellants are entitled to claim benefit of doubt and deserve to be acquitted.
10. Based on the above arguments, learned counsel for the appellant - Santosh submitted that the case of the prosecution is an extremely weak case but yet the learned trial court has convicted both of them. Learned counsel for the appellant submitted that the prosecution has also failed to prove the complete chain of circumstantial evidence which could prove CRL.A. Nos.428/1999 & 602/1999 Page 8 of 37 the guilt of these accused persons rather such circumstances are compatible to prove the innocence of these accused persons. Learned counsel for the appellant thus strongly urged for the acquittal of the accused persons and for setting aside the impugned judgment and order on sentence passed by the learned Additional Sessions Judge.
11. Addressing arguments on behalf of the appellant - Gautam Goswami, counsel for the appellant contended that in the present case there was a delay of four days in lodging of the FIR and during the said period, there was enough time for the police to fabricate the evidence and therefore, there is every reason to suspect the prosecution case. Counsel for the appellant further submitted that DD No.6A was lodged on 15.9.1996 at 6.05 AM but the said DD was endorsed by the SHO on 19th September 1996 for the registration of the FIR under Section 302 of IPC and this delay of four days remains unexplained by the prosecution and in the absence of any satisfactory explanation this delay in registration of FIR should be taken as fatal to the case of the prosecution. Counsel for the appellant further argued that the accused was a married person and was leading a happy married life with his family comprising of his wife CRL.A. Nos.428/1999 & 602/1999 Page 9 of 37 and prosecution has not produced any evidence to show that there was any kind of acrimony in their relationship due to which he had an illicit relationship with the co-accused Santosh, wife of the deceased. Counsel for the appellant also took a stand that the story of illicit relationship between the appellant and the co-accused has been created by the prosecution and no convincing or clinching evidence has been produced by the prosecution to prove the said illicit relationship. Counsel for the appellant also argued that there was a clear cut case of suicide committed by the deceased due to property dispute with his father and brothers, but the prosecution at the instance of PW-3 Shiv Charan has given it the color of a murder case. Counsel for the appellant also submitted that the appellant was a tenant under Shiv Charan, father of the deceased and since he was not vacating the tenanted premises therefore, due to his inimical relationship with Shiv Charan, he was falsely implicated in this case. Counsel for the appellant also argued that the wire was found at the spot of the crime and no investigation was conducted as to who brought the wire and how was it found at the spot of crime. Counsel for the appellant also submitted that in the entire judgment given by the ld. Trial CRL.A. Nos.428/1999 & 602/1999 Page 10 of 37 court also, there is no whiff of presence of wire at the spot of the crime. Counsel for the appellant also submitted that no TIP was conducted by the police to identify the appellant - Gautam by the sales person - Munna PW-6.
12. Based on the above submissions, counsel for the appellant - Gautam has pleaded for acquittal and setting aside the impugned judgment and order on sentence passed by the learned Trial Court.
13. Per contra, Ms. Richa Kapoor, learned Additional Public Prosecutor for the State vehemently argued that the case of the prosecution is based on circumstantial evidence and the prosecution has succeeded in bringing the entire chain of circumstances, which unerringly points out the guilt of these accused persons in the commission of the said crime, totally incompatible with the plea of innocence raised by the appellants. Counsel for the state further argued that as per the post mortem report which was duly proved on record by PW-10 - Dr. K. Goel cause of death of the deceased was opined as a result of strangulation and therefore, possibility of the deceased to have committed suicide is totally CRL.A. Nos.428/1999 & 602/1999 Page 11 of 37 ruled out. Learned APP further submitted that no suggestion was given to PW-10 by the defence that it was a case of suicide and not of culpable homicide. Learned APP also argued that there were injury marks on the neck and ankle of the deceased and the presence of these injuries also suggests the involvement of both the appellants in committing the said murder.
14. Learned Additional Public Prosecutor further argued that the prosecution has convincingly proved that both these Appellants had purchased two tablets of Alprax from a Chemist shop located in the same vicinity so that they could implement their nefarious design of killing the deceased, while he was in deep slumber after taking the dose of Alprax. Learned Additional Public Prosecutor also submitted that presence of Alprax was found in the stomach/spleen/kidney of the deceased on chemical examination of his viscera as per the CFSL report proved on record as Ex.PW 15/D and this clinching evidence fully establishes the fact that these two Appellants had purchased Alprax from the chemist shop and then these tablets were administered to the deceased by the appellant - Santosh and thereafter, both the appellants had committed the CRL.A. Nos.428/1999 & 602/1999 Page 12 of 37 said crime of murder.
15. Learned Additional Public Prosecutor also argued that the illicit relationship between these two accused persons finds support from the evidence of PW-3, PW-5 and PW-11. Learned APP also submitted that the presence of the appellant Gautam in the same house at least cannot be disputed as he was also a tenant residing in the same premises, where the deceased was also residing alongwith his family in the other portion of the property. Learned APP also submitted that the prosecution also proved on record that the accused used to come to meet Santosh even during the absence of her husband and it was accused - Santosh who was instrumental in bringing Gautam back to the tenanted premises when once he left the said premises. Learned APP also argued that there was not even an iota of evidence brought on record by the defence that there was any kind of dispute between the father and the deceased over some property issue and therefore, there is not even a nudge of truth in defence of the accused persons.
16. Learned Additional Public Prosecutor further submitted that the CRL.A. Nos.428/1999 & 602/1999 Page 13 of 37 appellant - Gautam had also absconded after committing the crime as he was arrested on 19.09.1996 from his work place. Learned Additional Public Prosecutor also argued that there can be no reason to disbelieve the evidence of an independent witness - Munna PW-6 who was a salesman in a chemist shop and who in his deposition clearly named these two accused persons having purchased Alprax tablets from the shop before the date of commission of the crime.
17. Learned Additional Public Prosecutor also argued that there is no delay in the registration of the FIR as the police was galloping in the dark and it is only after the post mortem of the deceased the cause of death was opined 'due to strangulation', the police found the case to be of murder and not of suicide as earlier reported by Shiv Charan, father of the deceased. Learned APP thus submitted that there is no delay in the registration of the FIR as argued by counsel for the appellants.
18. Based on the aforesaid submissions, learned Additional Public Prosecutor urged that the impugned judgment and order on sentence passed by the learned Additional Sessions Judge does not suffer from any CRL.A. Nos.428/1999 & 602/1999 Page 14 of 37 illegality or perversity, therefore the same may be upheld. In support of her contentions, learned Additional Public Prosecutor had placed reliance on the judgment of the Apex Court in Sarojini v. State of Madhya Pradesh reported in 1993 Supp. 4 SCC 632.
19. We have heard the learned counsel for both the parties at a considerable length and given our thoughtful consideration to the arguments advanced by them. We have also gone through the records of the learned trial court.
20. The victim in this case - Jaipal was a young bloke of 28 years of age and unfortunately the husband of the appellant - Santosh with whom he had married in the year 1989. Out of this wedlock, they had a daughter of four years at the time of this incident. The family was residing on the ground floor of premises no. S-352C, School Block, Shakar Pur, Delhi. On the first floor of the same property, appellant - Gautam Goswami was residing in a one room accommodation as a tenant under Shiv Charan, father of the victim - Jaipal and father in law of appellant - Santosh. The appellant - Gautam Goswami was also a CRL.A. Nos.428/1999 & 602/1999 Page 15 of 37 married person and as per the case of the prosecution, his wife - Saraswati had been mostly residing at her parental house. Appellants - Gautam Goswami and Santosh got attracted towards each other and had fallen in an illicit relationship, unmindfully betraying the sanctity of the relationship with their respective spouses. Victim - Jaipal had suspicion over the relationship of his wife, Santosh with the appellant Gautam and then their devious plan to eliminate Jaipal so as to continue with their relationship freely and without any kind of fear. To give a final shape to their sinister plan, both of them had purchased two tablets of Alprax from a nearby medical shop and the same was administered by Santosh to the victim on the intervening night of 14/15 September 1996 before he went to sleep. After he was found asleep, he was strangulated by both of the appellants with the help of a saree and when both of them found him dead, they hanged him with an iron girder so as to give an impression that the victim had committed suicide. As per the plan of the said accused persons Santosh reached at the house of his father-in-law at 6 a.m. wailing in cry by saying that 'main Mar gayi, main lut gayi'. Shiv Charan immediately reached the residence of his son, where he found Jaipal CRL.A. Nos.428/1999 & 602/1999 Page 16 of 37 hanging on the roof with a dhoti. Other people also gathered and he alongwith PW-9 Mittar Singh brought the dead body down after cutting the saree with the help of a knife. Thereafter, the matter was reported by Shiv Charan to the police and the investigation by the police commenced.
21. The case of the prosecution is based on circumstantial evidence. The principles to prove the guilt of the accused based on circumstantial evidence are well settled in catena of judgments passed by the Hon'ble Apex Court and various High Courts. Certain cardinal principles for conviction on the basis of circumstantial evidence are laid down eloquently by the Hon'ble Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra, 1984(4) SCC 116, wherein it has been held as under:-
"152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufailv. State of U.P.,(1969) 3 SCC 198 and Ram Gopal v. State of Maharashtra, (1972) 4 SCC 625. It may be useful to extract what Mahajan, J. has laid down in Hanumant case(supra):CRL.A. Nos.428/1999 & 602/1999 Page 17 of 37
"10....It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established.
(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 guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
CRL.A. Nos.428/1999 & 602/1999 Page 18 of 37
22. Taking into consideration the aforesaid principles, the learned trial court laid the following chain of circumstantial evidence which clearly and convincingly establishes the involvement of these two appellants in committing the murder of Jaipal by manual strangulation and thereafter hanged his dead body with the girder by tying a sari around his neck, so as to give it a colour of suicide. These circumstances can be outlined as under:-
i. The presence of accused Gautam Goswami in his
tenanted house as he was last seen by PW-5 at
8:30/9.p.m. on 14.09.1996
ii. The presence of accused Santosh with husband
Jaipal (deceased) in the house besides the presence of other accused on the intervening night of 14/15.09.1996 iii. Accused Santosh brought Gautam back into the tenanted premises after he was evicted 4-5 months back from his tenanted premises.
iv. Illicit relationship between Santosh and Gautam
Goswami
v. Both the accused persons had purchased Alprax
tablets from a nearby medical store to be
administered by Santosh to her husband before
carrying out the plan of his murder.
CRL.A. Nos.428/1999 & 602/1999 Page 19 of 37
vi. The presence of Alprazolam (Alprax) in the stomach,
spleen and kidney of the deceased as per the CFSL
report Ex. PW-15/D.
vii. Post mortem report proved on record as Ex. PW-
10/A in the testimony of Autopsy Surgeon, Dr. A.K.
Goel who in his report and testimony clearly opined the death of Jaipal by manual strangulation.
viii. The time of death of Jaipal relates back to 4.00 a.m. on 15.09.1996 as per the post mortem report wherein the time since death was stated about 32 hours from the time of autopsy, i.e., at 12.00 p.m. on 16.09.1996.
ix. Accused Santosh went to call her father-in-law residing just nearby at about 6.00 a.m. on 16.09.1996. Thus leaving approximate gap of 2 hours from the time of death of Jaipal as opined in the post mortem report and Santosh reached to her father-in-law Shiv Charan.
x. The margin of gap between the time of death and the information given by Santosh to her father-in-
law was sufficient enough to hang the dead body of deceased Jaipal with an iron girder fixed in the ceiling of the room.
All the aforesaid chain of circumstances have been proved by the prosecution with the help of cogent and clinching evidence and all the circumstances are consistent only with one hypothesis, i.e., the guilt of these accused persons totally incompatible with their CRL.A. Nos.428/1999 & 602/1999 Page 20 of 37 plea of innocence.
23. In the aforesaid background of facts in the present case and the legal principles enunciated above, let us now deal with the contentions raised by the counsel for the appellants to assail the findings of the learned trial court, in order to find whether there is any merit in any of his contention or the same have been raised as a shot in the dark and just for the heck of it.
24. Dealing with the first contention raised by the counsel for the appellants that allegations of alleged illicit relationship between these accused persons were absolutely baseless and unfounded as the same are based on hearsay evidence of the prosecution witnesses. There can be no denial of the fact that it is very difficult to prove with the help of any cogent and direct evidence the illicit or extra marital relationship between two persons and in most of the cases with the help of circumstantial evidence, the inference can be drawn about such illicit relationship. PW-3 Shiv Charan, father-in-law of accused Santosh, in his deposition had clearly stated that Gautam Goswami used to visit the portion of his son in his absence in order to meet Santosh. He also deposed that both of them CRL.A. Nos.428/1999 & 602/1999 Page 21 of 37 had developed an illicit relationship and once Gautam Goswami left the tenanted premises but was brought back by Santosh. He also deposed that his son was apprehending danger to his life and he had apprised this kind of trepidation to the brother of Santosh. The deposition of PW-3 Shiv Charan on this aspect remained unrebutted and unchallenged, therefore, there is no reason to disbelieve the testimony of PW-3 Shiv Charan who was just residing very near to the house of his son. Even in answer to the question asked by the counsel of Gautam Goswami as to who informed him about the illicit relationship of the wife of his son with Gautam Goswami, he categorically replied that his elder daughter-in-law had told him and such relations also came to light otherwise. This answer of PW-3 Shiv Charan clearly stipulates that he had the knowledge of such kind of relationship between his daughter-in-law Santosh and Gautam otherwise also.
25. PW-5 Trilok Chand, who is the brother of deceased also deposed that his brother himself told him that his wife Santosh and Gautam Goswami had developed some illicit relations. He also deposed that once his brother Jaipal had evicted Gautam Goswami from his tenanted CRL.A. Nos.428/1999 & 602/1999 Page 22 of 37 premises, still after 8-10 days Santosh herself brought tenant Gautam Goswami back to the premises. The testimony of PW-5 Trilok Chand also on this aspect remained unchallenged. Illicit relationship between two accused persons was also established by the prosecution through the evidence of PW-6 Munna Singh who in his deposition stated that accused Santosh had also accompanied Gautam Goswami at the time of purchase of Alprax medicine. These accused persons giving company to each other for buying a medicine from a chemist shop has to be considered in the light of the said incident and the other circumstances giving a clear hint of their illicit relationship. In the light of the clear, consistent and coherent deposition of these two witnesses, one can draw an easy conclusion that both these accused persons were having an extra marital relationship and the testimonies of some of the prosecution witnesses based on the hearsay evidence, on this aspect can be easily ignored.
26. Dealing with the next contention of the counsel for the appellants that there was no motive on the part of these accused persons to carry out the murder of Jaipal, this argument of the counsel for the appellants deserves outright rejection. There cannot be any strong motive other than CRL.A. Nos.428/1999 & 602/1999 Page 23 of 37 getting rid of a person who was a stumbling block in the said illicit relationship between the two immoral lovers. The extra marital relationship or the illicit relationship between two married persons because of their dissatisfaction with their own partner for one or the other reason, often results in the commission of such kind of crime and percentage of such crime in the society is very high. Thus, the motive clearly emerges in the circumstances that have been brought forth and this contention stands devoid of any merit.
27. The next contention raised by the counsel for the appellants was that the prosecution failed to produce the owner of the chemist shop in the witness box and there was a contradiction in the testimony of PW-6 Munna Singh vis-a-vis his statement recorded under Section 161 Cr.P.C. PW-6 Munna Singh is an independent witness. He was employed as a salesman with Shiv Medical Store. In his deposition he clearly named accused Gautam who came to the shop for purchasing Alprax medicine. In his court deposition, he also named accused Santosh who was present in court at that time, to have accompanied Gautam Goswami at the time of purchase of the said medicine. There can be no reason to disbelieve the CRL.A. Nos.428/1999 & 602/1999 Page 24 of 37 testimony of this independent witness as even the defence has not attributed any ill will or grudge of this witness to depose against the accused persons who are otherwise customers of the chemist shop where he was working. The testimony of this witness PW-6 Munna Singh cannot be doubted merely because in his court deposition he took a stand that he had handed over the medicine to his owner and the owner gave the medicine to the accused while in his statement under Section 161 Cr.P.C., he stated that the medicine was given by him to the accused. This minor variation in the statement of PW-6 Munna Singh is not enough to disbelieve his court deposition and thus we do not find any merit in the aforesaid contention raised by the counsel for the appellant.
28. It will be useful here to refer to the decision of the Apex Court in Sidhan v. State of Kerala, 1986 Cri.L.J. 470, wherein it was held :
"Minor discrepancies regarding minute details of the incident including the sequence of events and overt acts are possible even in the version of truthful witnesses. In fact such discrepancies are inevitable. Such minor discrepancies only add to the truthfulness of their evidence. If on the other hand these witnesses have given evidence with mechanical accuracy that much have been a reason to contend that they were giving, tutored versions. Minor discrepancies on facts which do not affect the main fabric need not be taken into account by the courts if the evidence of the witnesses is found acceptable on broad probabilities."CRL.A. Nos.428/1999 & 602/1999 Page 25 of 37
29. Coming to the next contention of the counsel for the appellants that there was a delay of four days in lodging of the FIR and during the said period there was enough time for the police to fabricate the same so as to falsely implicate these accused persons. Argument of the counsel for the appellants was based on the premise that DD No.6A in this case was lodged on 15.09.1996 at around 6.05 a.m. but the FIR in this case was registered on 19.09.1996. Counsel also took a stand that the prosecution also failed to explain the said four days delay in registration of the FIR. This argument of the counsel for the appellants also has no leg to stand as indisputably the complaint was lodged by PW-3 Shiv Charan, father of the deceased, after he had reached at the spot of incident where he found his son hanged with iron girder, PW-3 Shiv Charan accordingly, informed the police that his son Jaipal had committed suicide. It was only after the post mortem report, the police got an alert as in the post mortem report the opinion given by the doctor was pointing to a case of culpable homicide due to manual strangulation.
30. DD No.6A was lodged on a complaint made by PW-3 Shiv Charan on the morning of 15th September 1996 informing the police that his son CRL.A. Nos.428/1999 & 602/1999 Page 26 of 37 Jaipal had committed a suicide. The Post Mortem Report was received by the police on 16.09.1996 and it is through the post mortem report that the police became suspicious on the role of the appellants and it is thereafter, the investigation proceeded to a different angle. The Investigating Officer had recorded the statement of PW-3 on 15.09.1996 and accordingly endorsement on the rukka for the registration of the FIR was made on 19.09.1996. PW-14 HC Puran Chand in his cross examination had admitted the fact that he cannot satisfy the circumstances, which persuaded him in not registering the case till 19.09.1996. He also could not afford any explanation in his cross examination as to why rukka was not sent by him after he had recorded the statement of Shiv Charan and Mittar Singh. Indisputably with the lodging of report of suicide by Shiv Charan and the later events suggesting the case to be of murder, some delay was occasioned to take place on the part of the police to register the FIR under Section 302 IPC. However, we do not find any justification from the police to have not recorded the statement of the prime witnesses immediately after having obtained the post mortem report and thus, clearly there was a delay of at least two days in the final registration of CRL.A. Nos.428/1999 & 602/1999 Page 27 of 37 the FIR, for which we do not find any justifiable explanation being given by the police but that does not deprive the other evidence on record from ratification and in no way makes it dubious.
31. It is a settled legal position that the delay in lodging the FIR is not itself fatal to the case of the prosecution nor the delay itself can create any suspicion about the truthfulness of the informant just as a prompt lodging of the report may be no ground of its being wholly truthful as held by the Apex Court in Shanmugam and another vs. State, represented by Inspect of Police, Tamil Nadu, reported in (2013) 12 SCC 765. The Apex Court in the same judgment also took a view that where the explanations are not acceptable to the court, will depend upon the facts of each case and there is no cut and ripe formula for determining whether the explanation is or is not accepted. In the facts of the present case, although, we do not find any justification given by the police for the delay in registration of the FIR, yet considering the reliability and creditworthiness of the evidence proved on record by the prosecution, which found corroboration in the evidence of the post mortem report and CFSL report, due to the lapses on the part of the concerned Investigating CRL.A. Nos.428/1999 & 602/1999 Page 28 of 37 Officer cannot be held fatal to the case of the prosecution in this case.
32. The relevant para of the Shanmugam & Anr. v. State (supra) are reproduced as under:-
"9.1 Delay in the lodging of the FIR is not by itself fatal to the case of the prosecution nor can delay itself create any suspicion about the truthfulness of the version given by the informant just as a prompt lodging of the report may be no guarantee about its being wholly truthful. So long as there is cogent and acceptable explanation offered for the delay it loses its significance.
9.2Whether or not the explanation is acceptable will depend upon the facts of each case. There is no cut-and-dried formula for determining whether the explanation is or is not acceptable."
33. Dealing with the next contention raised by counsel for the appellant that none of the incriminating circumstances which were vital to the case of the prosecution were put to the accused at the time of recording their statement under Section 313 of Cr.P.C. As per counsel for the appellants the circumstances which were not put to the accused, inter alia, were regarding purchase of Alprax by the accused persons, regarding manual strangulation of the deceased by the accused persons and lastly, about finger nail marks found on the neck of the deceased. This submission of counsel for the appellant is totally misconceived. Both the accused CRL.A. Nos.428/1999 & 602/1999 Page 29 of 37 persons were confronted with the post mortem report of the deceased Jaipal, proved on record Ex.PW-10/A and the CFSL report Ex. PW-15/D and the evidence regarding purchase of Alprax tablets from Shivam Medical Store by these accused persons. Once any documentary evidence, whether in the nature of post mortem report, CFSL report or any other such incriminating evidence in the nature of any document is put to the accused at the time of recording of his/her statement under Section 313 of Cr.P.C., the accused cannot be heard to say that the particular fact or finding in the documentary evidence was not specifically put to him/her. Thus, the contention raised by counsel for the appellants deserves outright rejection.
34. This brings us to the next contention raised by counsel for the appellant Gautam Goswami that Jaipal had committed suicide due to some property dispute which he had with his father and brothers but the prosecution has given it the colour of the murder case at the instance of PW 3 Shiv Charan. The other motive attributed to Shiv Charan was that he wanted to get the tenanted premises vacated from Gautam Goswami, therefore, he got him falsely implicated in the said case. This contention CRL.A. Nos.428/1999 & 602/1999 Page 30 of 37 raised by counsel for the appellant that Jaipal had committed suicide because of some property dispute between him and his father cannot be appreciated in the absence of any clear facts brought on record by the defence. The accused Santosh has referred to a property dispute between her and Shiv Charan and other brothers of the deceased in answer to the residual question No.53, of her statement recorded under Section 313 Cr.P.C. and also a similar question put to PW-3 Shiv Charan during his cross-examination. But no specific details with regard to the property or with regard to the alleged disputes were spelt out by the defence. It was just vaguely suggested that there was a property dispute between Shiv Charan and his son. In the absence of any clear defence with regard to alleged property dispute between Shiv Charan and his son, the argument raised by counsel for the appellant on this aspect cannot be appreciated and is thus rejected.
35. The other plea taken by learned counsel for the appellant - Gautam Goswami was that Shiv Charan wanted to evict him from the tenanted premises also does not cut much ice as no such evidence was produced on record by the defence to show any kind of hostility or vendetta on the part CRL.A. Nos.428/1999 & 602/1999 Page 31 of 37 of Shiv Charan or if there were any steps taken by him to force Gautam Goswami to vacate the tenanted premises.
36. One of the contentions raised by the counsel for the appellant- Gautam Goswami, was that Gautam Goswami was leading a happy married life with his family and the prosecution failed to adduce any evidence to show that there was any kind of acrimony in his relationship with his wife due to which he could have developed illicit relationship with the co-accused Santosh. The best witness to prove to the cordiality and happy married life of Gautam Goswami could be none else but the wife of Gautam Goswami alone. Appellant Gautam Goswami failed to produce his wife in the witness box and her non-production by the appellant Gautam Goswami is a vital circumstance which goes adverse against this appellant. For the prosecution, the onus was to establish the illicit relationship between appellant Gautam Goswami and co-accused Santosh and not to establish the cordiality in the relationship of Gautam Goswami with his own wife. Certainly, appellant Gautam Goswami could have raised suspicion over the prosecution version only by producing his wife in respect of such a relationship. This argument of the learned CRL.A. Nos.428/1999 & 602/1999 Page 32 of 37 counsel for the appellant Gautam Goswami also does not lend any support to his case.
37. Dealing with the other contention raised by the counsel for appellant Gautam Goswami that no TIP was conducted by the police to identify him by the salesman of chemist shop Munna Singh PW-6 and therefore, the testimony of PW-6 should not be believed. This contention raised by the counsel for appellant Gautam Goswami is also misconceived like his other contentions. Indisputably, the said chemist shop M/s Shiv Medical Store was located in the same vicinity where Gautam Goswami and Santosh were residing. The said chemist shop Shiv Medical Store was duly identified by accused Gautam Goswami in his pointing memo proved on record as Ex. PW-5/C and had there been any TIP, appellant Gautam could not have participated and even if he had then normal defence could have been that he being the resident of the same locality was a familiar face for PW-6 Munna Singh. Even otherwise no separate request was made by accused Gautam Goswami for the conduct of TIP proceeding for the identification by PW-6 Munna Singh.
38. Dealing with the last contention raised by the counsel for the CRL.A. Nos.428/1999 & 602/1999 Page 33 of 37 appellant that the learned trial court has failed to deal with the presence of wire which was recovered from the spot. The contention of the counsel for the appellant was that the wire was found at the spot of the crime and even the investigation officer failed to conduct any investigation as to who brought the said wire and what would be the role of the wire in the commission of the said crime. Undoubtedly, from the spot of the crime the wire was recovered from the taand of the kitchen of the house and the said wire was taken into possession by PW-15 Inspector Raj Kumar vide Memo Ex.(PW-5/B). This wire was recovered at the instance of appellant
- Gautam Goswami, pursuant to his disclosure statement
39. Both these accused persons in their respective disclosure statement stated that after Santosh had called Gautam Goswami to her room around 2 or 2 ½ a. m. then Gautam Goswami first gave electric shock with the help of electric wire to Jaipal and that moment when Jaipal tried to get up with the effect of current he was manually strangulated with the help of a sari already lying there. This electric wire was again put to use by the accused persons as per their disclosure statement to give another electric shock to Jaipal to reassure themselves that Jaipal was no more alive. Both CRL.A. Nos.428/1999 & 602/1999 Page 34 of 37 these accused persons have denied the presence of electric wire at the spot of the crime and its use in electrocuting the deceased Jaipal, when a question to this effect was put to them at the time of recording their statement under Section 313 Cr.P.C. In the post mortem report of the deceased Ex. PW10/A, one does not find any reference to any injury which was sustained by the deceased on his body as a result of electric shock given to him prior to and after his death.
40. Considering the fact that in the post mortem report there is a categorical finding given by the autopsy doctor that the cause of death of the deceased was strangulation and injury Nos.2 and 3 were opined to be possible during the process of manual strangulation, no significance could be attached to the presence and recovery of the said electric wire from the spot of the crime. As the cause of death opined in the post mortem report by the autopsy surgeon is exact, we may not look for any other corroborative piece of evidence with the help of which the accused persons might have achieved their ultimate goal. It is not the case of the accused persons that the deceased Jaipal had died due to the electric shock given by them and had this been the case then certainly the CRL.A. Nos.428/1999 & 602/1999 Page 35 of 37 prosecution would not have been left with any choice except to prove the death of the victim as a result of electric shock received by him but in any case that is not the position in the present case. We are thus not persuaded to take any different view than the one taken by the learned trial court simply because the learned trial court failed to deal with the said aspect of the presence of the electric wire at the spot in the impugned judgment. Therefore, the said contention raised by the appellant is nothing but a fallacious attempt to confuse and deviate the mindset of the court and hence, deserves outright rejection.
41. Taking a cumulative view of the facts and circumstances of the present case, we are of the view that there is no perversity or illegality in the reasoning given by the learned Additional Sessions Judge in the impugned judgment vide which the learned trial court has rightly convicted the appellants for the offence committed by them under Section 302 IPC. Hence, the impugned judgment dated 24.05.1999 and order on sentence dated 27.05.1999, passed by the learned Sessions Judge are upheld. Finding no merit in the present appeal the same is dismissed.
42. The appellants are on bail. Their bail bonds and sureties are CRL.A. Nos.428/1999 & 602/1999 Page 36 of 37 forfeited. They are ordered to be taken into custody forthwith.
43. A copy of this order be sent to the concerned Jail Superintendent for information and necessary compliance.
KAILASH GAMBHIR, J.
SUNITA GUPTA, J.
JULY 18, 2014 v/pkb CRL.A. Nos.428/1999 & 602/1999 Page 37 of 37