Delhi District Court
State vs . 1. Jagdeep @ Tinku on 29 March, 2011
IN THE COURT OF SH M.R. SETHI: ADDL. SESSIONS
JUDGE: (FTC) (W):DELHI
SESSIONS CASE NO. 18/08
ID No. 02401R0180432000
FIR No. 663/2000
U/s 302/306/34 IPC
P.S. Nangloi
State Vs. 1. Jagdeep @ Tinku
S/o Sh. Kishan Lal
2. Kishan Lal
S/o Sh. Sardari Lal
3. Suresh
S/o Sh. Kishan Lal
4. Naresh
S/o Sh. Kishan Lal
5. Smt. Sudershana Rani
W/o Sh. Kishan Lal
All are residents of:
H. No. C- 122, Rajdhani Park,
Nangloi, Delhi
Date of Incident : 05.08.2000
Date of Reserving Judgment : 09.03.2011
Date of Pronouncement : 29.03.2011
( SC No. 18/08) Page 1 of 49
J U D G M E N T:
1 The deceased Smt. Anju wife of Sh. Suresh expired on 05.08.2000. It had been alleged against the accused persons that they had cause her death.
2 Initially charge was framed against the accused persons by my Ld. Predecessor on 23.07.2004 for having committed an offence punishable under Section 306/34 IPC. Subsequently, the complainant moved an application under Section 216 Cr.P.C and consequently my Ld. Predecessor was pleased to alter/amend the charge vide order dated 03.03.2005. Accordingly all the accused persons were charged with for having committed an offence punishable under Section 306/ 34 IPC AND in alternative under Section 302/34 IPC. Aggrieved, the accused persons challenged the said order and vide order dated 13.05.2008 passed by Hon'ble Mr. Justice H.R. Malhotra in Criminal Revision petition NO. 194/05, 496/04, 537/04 & 592/04, the order was quashed and the matter was sent back with direction to rehear and conclude as to whether charges under Section 306/34 IPC are to be framed against the accused persons or charges under Section 302 IPC are to be framed. This court after hearing arguments was of considered opinion that prima-facie there appear to be sufficient material on record to frame charge against all the accused persons for having committed offence punishable under Section 302/34 IPC. Accordingly, this court vide order dated 13.08.2009 was pleased to order framing of charges against the accused persons for having committed offence punishable under Section 302/34 IPC. All the accused persons pleaded not guilty to the charge framed and claimed trial.
( SC No. 18/08) Page 2 of 493 During course of trial, prosecution examined PW-1 ASI Darshna who proved copy of FIR Ex. PW1/A, her endorsement on the rukka Ex. PW1/B and copy of DD no. 11A Ex. PW1/C. She further claimed that on 06.08.2000 Ct. Rakesh had brought two sealed parcels which were sealed with the seal of DKS along with sample seal of DKS and the same were seized vide memo Ex. PW1/D and deposited in the malkhana.
During course of cross examination, witness claimed that one of the parcel contained clothes of the deceased but she could not tell details of the clothes. She further claimed that in the second sealed parcel there was viscera but she could not tell the detail of viscera. She further claimed that the complainant had come to her for lodging the FIR on 05.08.2000. She denied the suggestion that she had not sent the copy of the FIR to Illaka Magistrate on 07.08.2000.
The witness was recalled and reexamined as PW-1 after fresh charge was framed against the accused persons on 13.08.2009. During course of her fresh statement, the witness reaffirmed facts stated by her during course of her examination in chief recorded earlier.
During course of cross examination, witness claimed that DD No. 11-A had been recorded on basis of information given by a public person whose name she could not tell. She further stated that SI Randhir had already left the PS before DD NO. 11A was recorded and in fact had left vide DD No.3-A at 8.37 AM and had returned vide DD NO. 18-A at about 8.20PM.
( SC No. 18/08) Page 3 of 49She denied the suggestion that the pullandas were sealed with the seal of DSK or that sample seal of DSK had been handed over to her. She claimed that the seal was of DKS. She claimed that the pullandas and the sample seal had only remained with her for about five minutes & thereafter same was handed over to the MHC(M). Witness claimed that she had not observed any overwriting on the rukka when it was produced before her by Ct. Rakesh. She claimed that the rubber stamp at point Mark-Z-1 (in green) on rukka Ex. PW2/A had not been affixed on it by her. She could not say who had affixed the stamp. She claimed that she could not read the word encircled read Mark-Y underneath the rubber stamp nor could she read the word at point Mark-Z on Ex. PW2/A. She Vol. that the words were "Mar Dainge". She further claimed that she must have telephonically inquired from the IO before writing these words in the FIR. She further claimed that no one else had approached her prior to registration of this FIR or thereafter, for getting FIR registered in respect of this incident. She further claimed that she had not received any complaint or application in respect of the present case on 05.08.2000. She denied the suggestion that she was deposing falsely.
4 PW-2 Sushil Kumar was the complainant and brother of the deceased Anju. During course of his examination in chief he claimed that Anju was his younger sister who was married to Suresh Kumar in the year 1991. He claimed that on 05.08.2000 his sister gave a telephone call to him in morning and was crying when she complained "Veer inhone mujhe kuch khila diya hai mere se baat bhi nahin ho rahi mere gale mein dard ho raha hai aur chakkar bhi aa rahe hain". Witness stated that he asked his sister to come to him and thereafter he left for his work. Witness claimed that his sister had ( SC No. 18/08) Page 4 of 49 stated that her children had gone to school and she would come as soon as they returned from school. Witness stated that as soon as he reached his shop, he received a telephone call from his wife who stated that Anju had expired. He further claimed that he went to Anju's Sasuraal where she was lying dead on floor of room of her father-in- law. He further claimed that on 17.06.2000, his sister had been beaten by her in-laws i.e Jagdeep, Naresh, Krishan & Sudershana. Witness claimed that on that day children of her sister were sleeping on charpai on the roof of the house when his sister's mother-in-law threw all of them from the charpai. He claimed that accused Suresh i.e husband of the deceased Anju had asked his mother "Tu maa hai ki kya jo soye hue bacchon ko niche gira diya" . He claimed that accused Jagdeep and Naresh came up from downstairs with a dang and hit his sister with the same. They were also claimed to have torn her clothes. He claimed that Naresh extorted that they all should be turned turned out of the house and Jagdeep stated that her clothes had been taken off in the house today and tomorrow would be taken off on road. He further stated that whenever his sister used to come to him, she used to ask him for money to set up her independent house. He further claimed that on asking of his sister for money to set up her independent house, he often used to give her money but the money used to be spent in day to day domestic expenses. He claimed that when his sister had last telephonic conversation with him, she had told him that her father in law, mother in law, jeth Naresh, Dever Jagdeep @ Tinku had administered something to her (Mil kar kuch khila diya hai). He claimed that she further stated that she could not speak and asked him to take her away. The witness further identified his signature on his statement Ex. PW2/A recorded by the police. He also identified his signature on his statement Ex. PW2/B recorded ( SC No. 18/08) Page 5 of 49 regarding identification of dead body. He further claimed that he had subsequently made a written complaint in the police station. The same was proved as Ex. PW2/C. After seeking permission from the court, the witness was cross examined by Ld. Addl. PP for State and during course of such cross examination he admitted having stated in his statement to the police that for the past 6-7 years his sister was staying separately along with her children on the terrace floor of the house of her father in law. He further claimed having mentioned in his statement Ex. PW2/A that his sister had expired on account of being tortured by her Sasur, Saas, Jeth & Dever. Witness admitted that his supplementary statement was recorded by police on 05.08.2000 and that he had mentioned there in that his sister Anju along with Suresh had come to him and asked for financial assistance of Rs. 3-4 lacs for setting up their independent matrimonial home. Witness further admitted that when he reached matrimonial home of his sister, he met her husband Suresh who informed him that Anju had been taken to Sonia Nursing Home, Rohtak Road, Nangloi where she had been declared brought dead. He identified accused Suresh. He further admitted that police had reached the spot and prepared site plan and had searched room of Anju. He also admitted having signed the arrest documents in respect of accused Kishan Lal and Jagdeep. Witness admitted having told the police in his supplementary statement recorded on 05.08.2000 that they were verifying regarding Suresh and would inform the police in case anything suspicious was found out against him. He further admitted that his statement was also recorded by the police on 25.10.2000 wherein he had mentioned that his sister had died on account of being administered poison. He also admitted having mentioned therein about having made enquiries and being satisfied ( SC No. 18/08) Page 6 of 49 that Suresh was also involved in death of Anju. He further claimed that the complaint Ex. PW2/C was in his handwriting and his complaint Ex. Pw2/F bore his signature at point Mark-X. During course of cross examination by Ld. Counsel for accused, witness claimed that his monthly income in the year 2000 was Rs. 5000/-. He claimed that his wife and his mother were house wives and not earning. He further claimed that he had four children and was maintaining his mother and his family from his income of Rs. 5000/- per month. He further admitted that at that time he did not have financial position to give Rs. 3-4 lac to his sister. Witness admitted that he had never given any money to his other sister Neelam in the year 2000. Witness claimed that it was around 11-11.30 AM when he was in Karol Bagh that he came to know that his sister Anju had expired. Witness claimed having reached Sonia Nursing Home at about 12.15 - 12.30 PM and claimed that it was there that he came to know that Anju was brought dead in the hospital by Suresh and had been taken away. He claimed that it took him about 15 minutes in reaching Sasuraal of Anju from Sonia Nursing Home. He further claimed that only Suresh, Kishan Lal and Tinku were present in Sasural of Anju at that time. He admitted that his sister and her family were living on first floor of their own wishes. He Vol. that the first floor did not have any bathroom or kitchen. He denied the suggestion that since 6-7 years before her death, his sister was maintaining a separate kitchen on first floor. He claimed having met eldest son of his sister i.e Manoj at about 4-5 PM at her house on that day when she expired. Witness claimed that he did not have any talk with him regarding death of his mother Anju. He denied the suggestion that he had a talk with Manoj on that day or that Manoj told him that his ( SC No. 18/08) Page 7 of 49 mother had died naturally / accidental death. Witness claimed that Suresh was with him till 4-5 PM but he did not have any talk with him regarding Anju's death. Witness stated that Suresh had claimed that Anju had complained of pain in throat. Witness claimed that Suresh did not say anything else regarding her death. He further claimed that neigbours had also collected but he did not have any talk with them regarding her death. He admitted that there was no telephone connection on the first floor where Anju resided. Witness claimed having signed his statement Ex.PW2/A in Sasural of Anju at about 2.30-3 PM. He further claimed that the overwriting/correction at point Z on Ex. PW2/A already existed when he had signed the same. He claimed that the correction was made in his presence and the word after correction is "MAAR". The correction was claimed to have been made by the IO Randhir Singh. Witness could not say as to what was the word written prior to the correction/overwriting. He could not say as to what was the word written at point Mark-Y under the stamp. He claimed having gone to PS Nangloi at about 5/6 PM on 05.08.2000 and having remained there for about 30-45 minutes. However, he could not say whether or not he had met the SHO in the PS at that time. He could not say as to where he had written Ex. PW2/C. He admitted that his family members including his sister Neelam, her husband, Mamaji etc were present with him at that time. He denied the suggestion that whatever was stated in Ex.PW2/C was false and incorrect. Witness claimed that Ex. PW2/C was handed over by him to the duty officer on 05.08.2000 at about 5/6 PM. He claimed having handed it over to ASI Randhir singh in the police station. He claimed having remained in the PS for about 30 minutes thereafter. Witness claimed having gone to SHO in PS Nangloi for the first time on 05.08.2000 at about 11- 11.30 AM. He claimed having disclosed the ( SC No. 18/08) Page 8 of 49 facts regarding telephonic conversation between his sister and himself to the SHO at that time. He denied the suggestion that he had not disclosed any such fact to the SHO at that time. Witness admitted that fact that his sister had stated that her mother in law and father in law were claiming that they had not received rings in marriage and that she used to take money from her mother, had not been stated by him in his statement Ex. PW2/A and Ex. PW2/DA but were only mentioned in Ex. PW2/C. He could not given any reason for this. He further admitted that the factum of mother in law of his sister having gone upstairs on 17th June at about 11.00 PM and having thrown charpai on the sleeping children as mentioned in Ex. PW2/C was not mentioned in Ex. PW2/A & DA. He could not give any reason for the same. He further admitted that the factum of Tinku having brought the Kirpanas mentioned in Ex. PW2/C was not mentioned in Ex. PW2/A & DA. He could not give any reason for the same. He further admitted that the factum that Anju and Suresh came to his house and requested him for a separate house or Rs. 3-4 lac for the same as mentioned in Ex.PW2/C was not mentioned in Ex. PW2/A. He could not give any reason for the same. He further admitted that factum of neighbours having informed about death of Anju as mentioned in Ex. PW2/C was not mentioned in Ex. PW2/A & DA and he could not give any reason for the same. He further admitted that factum of Anju having been taken to Sonia Hospital as mentioned in Ex. PW2/C was not mentioned in Ex PW2/A & DA and he could not give any reason for the same. He further admitted that the factum of their reaching the PS at 11 AM for registration of FIR and their FIR not being registered till 5.00 PM as mentioned in Ex. PW2/C was not mentioned in Ex. PW2/A & DA. He again could not give any reason for the same. He could not say whether or not copy of FIR had been received by them.
( SC No. 18/08) Page 9 of 49He further could not say as to on which date he had developed suspicion regarding involvement of Suresh in the death of Anju. He claimed that it was about 2-3 months after her death. Witness denied the suggestion that earlier he was pressurizing Suresh to depose against the other four accused persons, but as Suresh did not agree to the same, he in collusion with the police falsely implicated Suresh in the present case. He further denied the suggestion that Ex. PW2/C was ante-dated and was prepared in collusion with the police to falsely implicated the accused persons.
Witness denied the suggestion that the word at point Z on Ex. PW2/A was not "MAAR". He further denied the suggestion that Ex. Pw2/A was a statement manipulated and fabricated by the IO. Witness denied the suggestion that false and incorrect facts had been mentioned in his application Ex. PW2/DB dated 01.02.2005 moved seeking amendment of charge. Witness claimed that on 18.06.2000, his sister had brought her torn clothes to her mother at Jahangir Puri, but the same were handed back to his sister. He claimed that he could not say where the same were. He denied the suggestion that the facts regarding the torn clothes and beatings given to his sister as mentioned in Ex. Pw2/DB were incorrect and false. He could not tell the name and address of neighbour of his sister from whose place she had given him telephonic call before her death. Witness claimed that telephonic call had been given at about 8.30 - 9.00 AM and that he had left his house about 15 minutes thereafter. Witness claimed having reached his shop in Karol Bagh at about 9.45- 10.00 AM. He denied the suggestion that Anju had never given him any telephone call from her neighbour's place. Witness claimed having mentioned in his statement to the police that his sister had given telephone call to him from her ( SC No. 18/08) Page 10 of 49 neighbour's place. He was confronted with his statement Ex. PW2/ A, B, C , DA & F where the said fact was not mentioned. He denied the suggestion that factum of the call having been made from neighbour's place was introduced for the first time in 2005 in his application Ex. PW2/DB. Witness admitted that the factum of his having advised Anju to rush to his house immediately on a scooter as mentioned in his application Ex. PW2/DB was not so mentioned in any of his earlier statements and letters to the police. Witness admitted that it was during course of court proceedings that he came to know that FSL report had been received and had revealed presence of aluminum phosphide. Witness admitted that the fact mentioned in Ex. PW2/DB to the fact that accused persons had been administering deadly poison to his sister through eatables either in the form of Prasad or some mixing up had been so stated as it was so in his opinion. Witness claimed that he had formed this opinion for the first time on 05.08.2000. He admitted that this fact had not been mentioned by him in any of his earlier statements or complaints to the police. However, he denied the suggestion that the said fact had been introduced for the first time in Ex. PW2/DB after due consultation and with malafide intention.
Witness further claimed that the fact that on 17.06.2000 Jagdeep had brought out a sword to kill Anju, as mentioned in Ex. PW2/DB had been mentioned by him in his earlier statements and complaints to the police. Attention of witness was drawn to his statements Ex. PW2/A, B, F & DA where it was not so mentioned AND to Ex. PW2/C where the word mentioned was KIRPAN and not SWORD. He denied the suggestion that investigation conducted by SI Randhir was dishonest and wrong. Witness admitted having ( SC No. 18/08) Page 11 of 49 mentioned in his statement Ex. PW2/A about Jagdeep having come upstairs and about having hit his sister. He was confronted with statement Ex.PW2/A where name of Jagdeep was not so recorded in this regard. He further claimed having mentioned in his statement Ex. Pw2/A about Jagdeep having come with an sword /kirpan. He was confronted with his statement Ex. PW2/A where it was not so recorded. Witness claimed that he had correctly mentioned in Ex. PW2/F about his sister having told him "mere ko innhone kuch khila diya hai". He claimed that she had not disclosed any names to him at that time. He further claimed that after reaching house of his sister he had not asked anyone as to how she had died, or at what time she had expired. Witness admitted having mentioned in Ex. PW2/F that his sister had called him about half an hour before her death & about having mentioned in Ex. Pw2/C that half an hour after telephonic talk with his sister, he received information regarding her death. Witness claimed that the time period of half an hour mentioned by him was approximate period. He could not give any specific period in that regard. However, he claimed that the said period could not have been 5 minute or either 5 hours but there could be margin of 15 minutes on either side while calculating the time period of half an hour. Witness further claimed that he had not asked his sister as to from which neighbour's place she was making the telephone call. He claimed that his sister had only claimed that she was making the call from a neighbour's place. Witness further claimed that he never had any talk with Reena i.e daughter of his sister Anju regarding circumstances in which Anju had expired. He claimed that he had not asked his sister as to what she had taken for treatment about pain in her throat when he had a telephonic talk with her. He further claimed that he did not remember whether or not he had asked her as to what she had eaten or drunk. He further admitted that he had not asked as to who else was ( SC No. 18/08) Page 12 of 49 present in her house at that time. He further claimed that on his asking, his sister had told him that she was giving telephone call from neighbour's place as she was not permitted to make telephone call from her house. Witness admitted that accused Naresh had subsequently filed a suit for recovery of Rs. 5 lacs against him and SI Randhir. The witness claimed that he could not say if he had mentioned in his written statement filed in the said suit that his sister rang from neighbour's house to avoid detection from the accused persons. His attention was drawn to certified copy of the said written statement Mark-PW2/DC portion X to X of para no. 7 where it was so recorded. He further claimed that as he did not remember, he could not say if he had mentioned in Mark-PW2/DC that Anju had died within 15-20 minutes after she had called him. His attention was again drawn to portion Mark Y to Y para no. 7 of the said document where it was so recorded. Witness admitted that accused Suresh along with his wife Anju and children had a separate ration card and also a separate gas connection. He claimed that the complaint Ex.PW2/F had been written by him at his house and had been delivered in office of ACP, Punjabi Bagh on 24.10.2000. He denied the suggestion that it had been written by him under instructions of SI Randhir or that it had been handed over to him. He denied the suggestion that the said complaint was never given to SHO or ACP, Punjabi Bagh. Witness claimed having mentioned in his statement Ex. PW2/A that his sister had complained "Veer inhoney mujhe kuchh khila diya hai". He was confronted that his said statement where it was not so recorded. He further claimed having mentioned in his said statement that when his sister had last telephonic conversation with him, she had told him that her father in law, mother in law, jeth Naresh and Devar Jagdeep @ Tinku had administered something to her "Milkar kuchh khila diya ( SC No. 18/08) Page 13 of 49 hai". He was confronted with his statement Ex. PW2/A where it was not so recorded. He further claimed that as he did not remember, he could not say if he had mentioned in his said statement that his sister had stated that her children had gone to School and she would come to his house as soon as her children returned from school. His attention was drawn to his statement Ex. PW2/A where these facts were not mentioned. He further claimed having mentioned in his said statement that on 17.06.2000 his sister had been beaten by Jagdeep and other accused persons. He was confronted with his statement Ex. Pw2/A where name of Jagdeep had not been mentioned. He further claimed having mentioned in said statement that on 17.06.2000 children of his sister were sleeping on the roof of the house when his sister's mother in law threw all of them from Charpai. He was confronted with his statement Ex. PW2/A where it was not so recorded. He further claimed having mentioned in his said statement that thereupon Suresh had asked his mother "Tu Maa Hai Ki Kya Jo Soye Hue Bachchon ko Niche Gira Diya". He was again confronted with his statement where it was not so recorded. He claimed that he could not say if he had mentioned in his said statement that Jagdeep had stated that clothes of his sister had been taken off in the house on that day and that on the next day the same would be taken off on road. Attention of witness was drawn to his statement Ex. PW2/A where it was not so recorded. He claimed having mentioned in his statement Ex. PW2/A that on asking of his sister for money to set up her independent house, he often used to give her money but the money used to be spent on day to day domestic expenses. He was confronted with his statement Ex. PW2/A where it was not so recorded. Witness admitted that despite his sister requesting him to take her away from her matrimonial house, he had not gone to her house immediately to bring her back as he was ( SC No. 18/08) Page 14 of 49 having some documents which had to be taken to his shop and as his sister had stated that she would come after her children had returned from their school. He further stated that as they had not apprehended that the situation was so serious, therefore, he had not sent anyone to bring her. Witness further claimed that the complaint Ex. Pw2/C had been made by him about 2-3 hours after his statement Ex. Pw2/B had been recorded. He claimed that his statement Ex. PW2/D had been recorded between 4-5 PM on 05.08.2000, but he did not remember as to where it had been recorded. Witness claimed that as he did not remember, he could not say whether or not he had mentioned in any of his statement / complaint made to the police that there was no bathroom / kitchen on the first floor at house of his sister. His attention was drawn to all his previous statements and complaints where this fact was not mentioned. He claimed that they all had reached the police station at about 11 AM and had remained there for 30-45 minutes. He claimed that from there, they had gone to house of the accused persons where they reached at about 12 noon and remained there till about 4:00 - 4:45 PM He denied the suggestion that he had falsely mentioned in his complaint Ex. PW2/C that they had reached Police station for registration of FIR at about 11 AM but their FIR had not been registered till 5 PM. He admitted that he had not lodged any complaint with any superior police officer regarding non-registration of FIR by the SHO till 5 PM on 05.08.2000. He denied the suggestion that no incident as mentioned by him ever took place on 17.06.2000 or that he did not have any telephonic talk with his sister on 05.08.2000. He denied the suggestion that earlier they wanted Suresh to appear as a witness in their favour, but as he refused, h e was falsely implicated in this case along with other accused who all had been falsely implicated to extract money. He denied the ( SC No. 18/08) Page 15 of 49 suggestion that he was deposing falsely.
During course of cross examination by Ld. Amicus Curie for accused Sudarshna, witness claimed that his shop in Karol Bagh was at a distance of about 12 kilometer from his house. He denied the suggestion that it takes one hour in going from his house to his shop.
5 PW-3 HC Brij Lal claimed having brought FSL result from FSL to the police station on 27.09.2000.
During course of his cross examination witness claimed that he could not tell the number of packets in respect of remnant exhibits brought by him from FSL and deposited with MHC(M). He claimed that he could not say if he had deposited one, two or fifty packets with the MHC(M). He claimed that the packets were sealed with seal of FSL. He denied the suggestion that the exhibits had been tampered with or that he was deposing falsely.
6 PW-4 Jai Prakash claimed having identified dead body of Anju vide his statement Ex. PW4/A. During course of cross examination by Ld. Counsel for the accused, witness claimed that he had remained a tenant under Sh. Sushil Kumar for a period of about 1 - 1 ½ years. He claimed having identified the dead body in the house where his statement was recorded. He further claimed that he was telephonically informed by Sh. Sushil Kumar about Anju's death at about 10-11 AM but he was not sure about the time. Witness claimed that at that time he was not living in house of Sushil and had been called by him. Witness claimed ( SC No. 18/08) Page 16 of 49 that at that time he was living at a distance of 10-15 kilometer from house of Sushil.
7 PW-5 Smt. Neelam was sister of the deceased. Witness claimed that her sister Anju who expired on 05.08.2000 had been married to Suresh for about 10 years prior to her death and they were living in C-122, Rajdhani Park along with her in-laws and they had a common kitchen. She further claimed that on 17.06.2000 a quarrel had taken place in the matrimonial house of Anju between her husband, his brothers and parents. She claimed that on the next day i.e on 18.06.2000, Anju had come to their mother's house along with her husband and on being informed by her mother, she also had gone there. Witness claimed that Anju showed torn clothes i.e gown and also showed her injury marks on her body. She further claimed that Anju told her that everyone in the matrimonial house had told her-
"Aaj tujhe ghar me nanga kiya hai to kal tujhey chaurahe per nanga karange". She further claimed that Anju was so afraid that she claimed that she would be killed in her matrimonial house. Witness stated that even her husband Suresh claimed that they no longer wanted to live in that house and requested them to get a house nearby for them. She claimed that her mother told them (Anju and Suresh) that they would have to live in their house and that we could not separate them from their house and family. She claimed that Anju and Suresh were sent back. She further claimed that Anju was facing problem regarding water and often used to complain to her mother regarding the same and used to tell that her in laws did not permit her to take water from downstairs. She further stated that on 05.08.2000 her brother Sushil gave a telephone call to her for informing her that Anju had called him and informed that she was not feeling well and perhaps someone had administered something to her. She further ( SC No. 18/08) Page 17 of 49 stated that Sushil also informed her that he had told Anju that he could not come to her house on account of recent quarrel that had taken place and that he had asked Anju to come to his house along with kids and that he would take her to a doctor. Witness claimed that Sushil also asked her to come to his house as their mother was not at home and to take Anju to the doctor. Witness claimed that she had a talk with her husband in this regard and as it was holiday for her kids, they started getting ready for going to her mother's house. She further claimed that she was just making breakfast when she received a telephone call from one of neighbours of Anju who told her that Anju had been declared dead. Witness claimed that she rang up her mother's house but no one picked the phone and so on her husband's asking she called at Anju's Sasural where she had a talk with Anju's father in law who told her that Anju had expired. She further claimed that on her asking, she was informed that Anju had been taken to Sonia Nursing Home. Witness claimed that she along with her husband went to Sonia Nursing Home and on way she gave a call to her brother Sushil and talked about news of Anju's death. She claimed that Sushil also told her about having received the said news from one of the neighbours over telephone. She claimed that on reaching Sonia Nursing Home when they inquired about Anju, they were informed that Anju had been brought dead and the dead body taken back. She claimed that they started crying and weeping and after sometime her brother Sushil also reached there and it was then that they realized that whatever Anju had stated was correct and they repented about having sent her back to her Sasural. She claimed that from there some of them went to Anju's Sasural while the rests had gone to PS Nangloi.
After seeking permission from the court, witness was cross examined by Ld. Addl. PP for State wherein she admitted that she had ( SC No. 18/08) Page 18 of 49 also made a statement to the police to the effect that her sister had been poisoned and that she was satisfied that her (Anju's) husband Suresh was also involved and that she had no doubt left that Anju's father in law, mother in law, Jeth Naresh, Devar Jagdeep @ Tinku and her husband were responsible for her death. Witness claimed that she did not remember the day when such statement was made by her to the police and hence could not say if it was made on 25.10.2000.
During course of cross examination by Ld. Counsel for accused, witness admitted that she had not stated about the incident of 17.06.2000 or 18.06.2000 in her subsequent statement recorded by the police. She denied the suggestion that no incident took place on 17.06.2000 or 18.06.2000 as had been stated by her or that she was deposing falsely in this regard. Witness admitted that she did not have any telephonic conversation with Anju on 05.08.2000 and that the first conversation regarding Anju on 05.08.2000 was between her and her brother. She could not tell the time or even the approximate time when she had the said telephonic conversation with her brother. She claimed that the same took place around 08:30 - 9:00 AM. She could not tell as to when she had her second telephonic talk with Sushil on that day. She could not say if the second talk was 30 minutes, 1 hour, 2 hour, 4 hour or 10 hours after the first talk. She claimed that she could neither admit nor deny the suggestion that Suresh had not attended his office on 17.06.2000 or 18.06.2000 or whether or not he had received any overtime for those days. She could not even say as to when she had last visited Sasural of her sister before her death. She claimed that the same could have been within 6 months before her death. She could not even say as to when she had reached sasural of her sister on the day she had expired. Witness claimed that she could not say if she had gone there in the morning, after noon, evening or at night. She claimed ( SC No. 18/08) Page 19 of 49 that all the accused persons were present in the house at that time. She claimed that she did not have any talk with Anju's children on that day. She claimed that her brother and mother had accompanied her to Anju's house and they all left Anju's house together. She claimed that she could not say if they had remained there for 4 hours, 6 hours, 10 hours or 20 hours. She claimed that her statement was not recorded by police on that day in sasural of her sister but was recorded in the police station between after noon and evening. When statement Ex. PW5/DA portion X to X was read over to the witness, she admitted having made the said statement to the police. She could not tell the name or rank of the officer who had recorded her statement. She could not say if it was in the handwriting of SI Randhir Singh. Witness admitted that factum of her having gone to her mother's house on 18.06.2000 and what was told to her by her sister at that time was not mentioned in her statement Ex. PW5/DA. She voluntarily said that although she used to tell everything to the officer, but every time he used to ask her to state only what had taken place on that very day i.e 05.08.2000. Witness admitted that she had not made any complaint to any superior police officer regarding her complete statement not being recorded. Witness admitted that she had not mentioned in her statement Ex. Pw5/DA and Mark-PW5/DB that Anju was residing along with her in-laws and they had a common kitchen. He denied the suggestion that no quarrel whatsoever had taken place in house of Anju on 17.06.2000 or that she had never come to house of their mother on 18.06.2000 or had not stated anything regarding 17.06.2000 or that she herself (Neelam) had never been called to house of her mother on 18.06.2000. Witness admitted the factum of Anju having shown her torn clothes as well as her injuries, was not mentioned in her statement Ex. PW5/DA or Mark-PW5/DB. She admitted that she had not mentioned in her said statements about Anju having claimed ( SC No. 18/08) Page 20 of 49 that she would be killed in her matrimonial house. She also admitted that she had not mentioned in her said two statements that Suresh requested them to get them a house nearby. She admitted having mentioned in her statement to police that on 05.08.2000 her brother Sushil gave a telephone call to her and told her what had been said to him by Anju. Her attention was drawn to both her statements where it was not so recorded. She further claimed that police had obtained her signatures on statements. It was stated by Ld. Addl. PP for State that there was no such statement on record. Witness admitted that she had not mentioned in her said statements that Sushil had told her about having told Anju that he could not come to her house on account of recent quarrel or that he asked Anju to come to his house along with kids. She further claimed that she could not say whether or not she had mentioned in her statements to police that Sushil asked her to come to his house and to take Anju to the doctor as their mother was not at home. Her attention was drawn to the said two statements where it was not so recorded. She denied the suggestion that she had not received any telephone call from anyone regarding Anju having been declared dead or that she had not received any telephone call from Sushil on 05.08.2000. She admitted that she had not mentioned in her statements to the police that on way to Sonia Nursing Home she gave a call to her brother Sushil and talked about death of Anju. She claimed that she along with her mother had firstly gone to Anju's sasural and thereafter to police station. Witnes admitted that she had not mentioned in her statement Ex. PW5/DA that her sister had been poisoned or that Suresh was also involved or other accused were responsible for her death. She denied the suggestion that she was deposing falsely.( SC No. 18/08) Page 21 of 49
During course of cross examination by Ld. Counsel for accused Sudershana Rani, witness claimed that she used to meet Anju nearly once every month and that sometimes they used to come over to their mother's house and sometimes Anju used to come over to her house. Witness claimed that she had not met Anju's children since after 06.08.2000 and did not have any talk with them. She denied the suggestion that accused had been falsely implicated.
8 PW-6 HC Rakesh Kumar claimed that on receipt of information regarding death of a lady on 05.08.2000 he along with SI Randhir Singh had gone to C-122, Rajdhani Park where he saw dead body of a lady there. He claimed that Sushil i.e brother of deceased met them there and his statement was recorded by SI Randhir Singh. He further claimed that thereafter SI Randhir Singh brought rukka which was handed over to him and he took to the same to police station and after registration of FIR brought the rukka and copy of FIR to the spot & handed over the same to SI Randhir Singh. He further submitted about arrest of accused Kishan Lal and Jagdeep and identified his signatures on their arrest documents. He claimed that inquest papers were also prepared. He further claimed having taken the dead body to Sanjay Gandhi Hospital Mortuary for getting postmortem conducted and claimed that postmortem was conducted on 06.08.2000. He further claimed that IO handed over to him a pullanda containing clothes, Viscera along with sample seal and he brought the same to the police station and handed over the same to the Duty officer. It was claimed that the same had been seized vide seizure memo Ex. PW1/D. Witness identified his signatures on the same. It was claimed that thereafter DO deposited the articles in the malkhana.( SC No. 18/08) Page 22 of 49
During course of cross examination by Ld. Counsel for accused, witness admitted that he had been informed by the IO in the mortuary that the second packet contained viscera. He claimed that he could not say anything about contents of the said packet i.e Viscera. He further claimed that sample seal was not of DSK but was of DKS. He claimed that he could not say as to whether or not he had mentioned initials of the seal in his statement to the IO. He claimed he could not say if it had been mentioned in his statement that seal was of DSK. His attention was drawn to his statement Ex. PW6/DA where initial of seal were mentioned as being DSK. He claimed that he could neither admit nor deny the suggestion that initials of seal being DKS had never been told by him to the IO. Witness denied the suggestion that the pullandas had been tampered with. He further claimed having reached the spot for the first time at around 12:45 PM. He further claimed that Sushil had remained there till he left the spot with rukka. It was claimed that proceedings U/s 174 Cr.PC had been conducted at around 3:30 - 4:00 PM. He claimed that Sushil Kumar was present at the spot at that time and had identified the dead body. Witness claimed having signed the arrest memo at about 5:20 PM and claimed having left the spot for mortuary around 1 to 1 ½ hour after arrest memos were prepared. He further claimed that the personal search memos Ex. PW2/ D & E had been prepared at around 5:25 - 5:30 PM and Sushil had signed the same in his presence at the same time. He denied the suggestion that he was deposing falsely.
9 PW-7 Dr. Madhulika Sharma proved FSL report Ex.
PW-7/A. During course of cross examination, she claimed that as per record, four sealed parcels in the present case were marked to her ( SC No. 18/08) Page 23 of 49 for chemical examination on 28.08.2000. She voluntarily said that as per record the same had been received in office of FSL, Delhi on the same day. She could not tell name of the person who had initially received the parcels in office of FSL or at what time the same had been received. She claimed that the parcels had not been received by the person in her presence. Witness claimed that phosphide was basically a gas and is not available as it is and was available in the form of a salt or a complex i.e compound. It was claimed that aluminum phosphide was a salt of phosphide and Zinc phosphide was another salt of phosphide. She admitted that phosphide independently was not a salt. Phosphide does not exist alone except in salt form. Witness denied the suggestion that all the four packets were sealed with seal of DSK and claimed that the same were sealed with the seal of DKS. Witness denied the suggestion that phosphide and aluminum phosphide were different. As per report Ex. PW-7/A witness claimed that as stomach has internal linings, what they received was residual of aluminum phosphide. She claimed that in Ex. Pw2 (pieces of liver, spleen and kidney) there is breakdown of poison which converts into phosphine gas which gas gets absorbed in the blood and hence the report that the same gave positive test for the presence of phosphide. To specific question, she stated that aluminum phosphide used to be used as a fumigant for grain preservation, but that was about two decades back but presently was a baned item. She further claimed that as per medical and chemical literature, aluminum phosphide can be used for homicide as well as suicide purposes. She admitted that aluminum phosphide has a very pungent smell and denied the suggestion that it can not be given deceptively. She denied the suggestion that neither any aluminum phosphide nor any phosphide was found in the exhibits examined by her or that her report was incorrect. Witness further claimed that normal symptoms after ( SC No. 18/08) Page 24 of 49 consumption of aluminum phosphide are vomiting and asphyxia. She claimed that she could neither admit nor deny the suggestion that aluminum phosphide can be consumed accidentally. She further claimed that she could not say if on account of its bitter taste, aluminum phosphide could not be administered to some other person deceptively. She claimed that in case aluminum phosphide is of good quality, the symptoms would develop instantly i.e within 2 to 5 minutes and if it was not of good quality, the symptoms could develop between 8 to 10 minutes. Witness claimed that phosphide by itself is poisonous and therefore it could not be stored independently.
10 PW-8 Dr. Komal Singh proved postmortem report Ex. PW8/A. He claimed that postmortem was conducted on 06.08.2000 at about 10:35 AM and that time since death was approximately 24 hours. He further submitted that initially opinion regarding cause of death was kept pending till chemical examination report of viscera was received and subsequently after receipt of FSL report, cause of death was opined to be poisoning due to aluminum phosphide. He also proved his opinion in that regard which was given on 28.09.2000.
During course of cross examination, witness denied the suggestion that portion encircled green Mark-Z on Ex. Pw8/A was written by him on 28.09.2000. He claimed that the same was written on 06.08.2000 when postmortem was conducted. He claimed that he could not admit or deny the suggestion that portion Mark-Z was not in existence when he had put his signature at point Mark-X. He further stated that viscera in this case means and includes stomach, part of intestine, part of liver, half of spleen and half portion of each kidney and also some blood. He further submitted that entire viscera was put in two separate jars and that one jar contained liver, spleen, ( SC No. 18/08) Page 25 of 49 kidney and blood and the other jar contained stomach and intestine. He further stated that he had handed over the two jars of viscera to the IO SI Randhir Singh and receipt in that regard was obtained in register maintained in the office. Witness admitted that separate register is maintained regarding postmortem reports. (At that stage further cross examination of the witness was deferred with direction to the witness to produce the postmortem register along with the receipt register and witness appeared on the next date along with the same).
Witness admitted that the endorsement made at point Mark-Z on postmortem report Ex. Pw8/A did not exist on carbon copy of the postmortem report. He further submitted that there could be a margin of 3 hours on either side as regards time since death. He submitted that as such death could have taken place anywhere between 7:35 AM to 1:35 PM on 05.08.2000. Witness further claimed that symptoms would remain the same in case aluminum phosphide is consumed accidentally or is administered for homicide or consumed for suicide. He claimed that he had suspected poison even at the time of conducting the postmortem report and preparing the report, but admitted that this fact was not specifically mentioned in report Ex. Pw8/A. He claimed that Salwar, Shirt and underwear of the deceased which was faecal contaminated had been seized and all were sealed in a single parcel which was handed over to the IO. He further claimed that there was no presence of vomit or urine in the clothes. He denied the suggestion that his postmortem report Ex. Pw8/A was false and fabricated and wrongly prepared at the instance of police.
11 PW-9 P.K. Madaan claimed having taken photographs of the dead body on 05.08.2000 & proved on record the photographs Ex. PW9/A1, A2 & A3 and the negative thereof as collectively Ex.( SC No. 18/08) Page 26 of 49
PW9/B. During course of cross examination, witness claimed having reached the spot at about 3 PM and claimed having stayed there for 15-20 minutes. He claimed that 50-100 public persons were also present there at that time but he could not say if the accused persons were also present there.
12 PW-10 SI Randhir Singh claimed that on 05.08.2000 on receipt of copy of DD No. 11 A, PS Nangloi, he had gone to C-122, Rajdhani Park with Ct. Rakesh Kumar and on reahcing a room in the said house had seen a dead body lying there. Witness claimed that he also met one Sushil Kumar in the said house and recorded his statement Ex. PW2/A . Witness proved his endorsement Ex. PW10/A on the same. He claimed that rukka was handed over to Ct. Rakesh Kumar for being taken to the police station for registration of FIR and then he prepared site plan Ex. PW10/B at instance of Sushil Kumar. The photographer was also claimed to have been called to the spot . Witness claimed that then he conducted the inquest proceedings in respect of the dead body of Anju which along with inquest papers had been handed over to Ct. Rakesh Kumar for being taken to Mortuary Sanjay Gandhi hospital. He claimed having arrested accused Kishan Lal and Jagdeep on 05.08.2000. He proved his signatures on the arrest documents. He also proved his application for conducting postmortem and claimed that dead body was handed over to legal heirs of the deceased after postmortem. He further stated that viscera in a wooden box sealed with seal of DKS and clothes of deceased in a pullanda sealed with the seal of DKS along with sample seal were handed over to him by the doctor. The same were handed over to Ct. Rakesh Kumar for being taken to the police station. Witness had stated about ( SC No. 18/08) Page 27 of 49 arrest of the other accused persons and about preparing of arrest documents. He claimed that on 25.10.2000 Sushil Kumar and his mother had appeared before ACP Punjabi Bagh where the witness was summoned and directed to record statements of Sushil Kumar and his mother and to arrest accused Suresh. Witness claimed that Suresh was accordingly arrested. He further claimed having recorded statements of other witnesses and also proved documents.
During course of cross examination, witness claimed that there was no overwriting at point Mark-Z on document Ex. Pw2/A. He claimed that while writing, some extra ink had leaked from the ball pen and that there was no overwriting. He denied the suggestion that an overwriting was made at point Mark-Z and it was deliberate manipulation. He admitted that the rubber stamp at point Z-1 on Ex. PW2/A was affixed by him in the police station, but he could not tell the time in that regard. He claimed that the same was affixed on 05.08.2000 itself, but he could not say at what time. Witness claimed that he had first met Sushil Kumar at about 12:45 PM but could not say when he had first met Neelam on that day. He claimed having met her at the spot for the first time. Witness denied the suggestion that the rubber stamp at point Z-1 was affixed with ulterior motive to make illegible the word mentioned at point Mark-Y on Ex. PW2/A. Witness admitted that the statement Ex. PW5/DA bore his signatures but claimed that it was not in his handwriting or written in the police station. He claimed that documents Ex. PW2/B, D, E and Ex. PW4/A were not in his handwriting. He could not say as to who was author of the same. He further claimed that he had tried to associate respectable neighbours of the deceased during inquest proceedings, but none agreed to join. He denied the suggestion that he had intentionally not joined any of the neighbours or any person of locality due to malafide ( SC No. 18/08) Page 28 of 49 reasons. He claimed that as he did not remember, he could not say whether or not he had received letter Ex. PW2/C during course of investigation. He denied the suggestion that the said letter was manipulated and antidated and therefore he claimed that he could not say anything in respect of the suggestion that Ex. PW2/C had never been handed over to the SHO. He claimed that he had never read it earlier and had never investigated the case in connection with contents of the same. He denied the suggestion that the said letter was written by Sushil Kumar in the police station under his guidance and given to him. He claimed that he could not say as to how this letter was filed along with the challan in this case. Witness admitted that Sushil Kumar had remained with him at the spot till 5 PM but had left before 6 PM. Witness claimed that Sushil did not meet him thereafter on that day. Statement Ex. PW2/DA was claimed to have been recorded by him at around 5 PM on 05.08.2000. He claimed that the brief facts (Ex. PW10/G) had been written on 05.08.2000 at house of the deceased. He further claimed that he could not say as to when or where he had seen application Ex. PW2/F for the first time. He could not say if the same had been handed over to him by Sushil Kumar or by anyone else or if he had found the letter on record when he had received the file. Witness claimed that as far as he remembered, Ex. PW2/F was handed over to him by Sushil Kumar in office of the ACP. He claimed that he must have read over the letter on the same day itself i.e on 25.10.2000. Witness denied the suggestion that the said letter had never been received in office of ACP or had never been given to him by Sushil. Witness further claimed that he had not made any investigation in respect of the fact mentioned in Ex. PW2/F regarding Sushil having given anything in writing to the SHO on 05.08.2000 while getting the FIR registered. He claimed that according to him, time of death of the deceased was around 11:00 / ( SC No. 18/08) Page 29 of 49 11:30 AM. He claimed that he had not made any inquiry from Sushil as to where he had received telephone call from Anju as mentioned in Ex. PW2/F. He further claimed that he had not made any inquiry as to from which telephone number the said call had been made or at which number it had been received. He denied the suggestion that Ex.PW2/F had been got written by him from Sushil and kept on record. Witness denied the suggestion that he had recorded statement of wife of accused Jagdeep and wife and children of accused Naresh or that he had concealed the same. He expressed his ignorance to the suggestion that Manoj eldest son of the deceased had made any complaint against the complainant or himself to the SHO regarding the accused persons being falsely implicated in the present case. After referring to the case diary witness claimed having made inquiries from Satish, Smt. Saroj and Shiv Singh regarding the incident. He denied the suggestion that all these three persons had told him that he was falsely implicating the accused persons in this case or had asked him not to make a false case. Witness claimed that none of them was prepared to make any statement to him. Witness denied the suggestion that after inquest proceedings, he was of the opinion that death in this case was due to suicide. He further denied the suggestion that even at the time of filing charge sheet, he was of opinion that it was case of suicide. Witness admitted that as per his investigation and charge sheets filed by him, offence U/s 304 or U/s 302 IPC was not made out. He claimed that it was on 25.10.2000 on basis of statements of complainant and her other relatives, recorded by him that he formed the opinion that Suresh was also an accused in this case. Witness admitted that during course of his investigation he had never come across anything in writing handed over by Sushil to the SHO on 05.08.2000 at the time of registration of FIR wherein he had prayed that Suresh, Krishan Lal, Sudershan Rani, Naresh Sharma & Jagdeep should be arrested being ( SC No. 18/08) Page 30 of 49 responsible for Anju's death. Witness claimed that as he did not remember, he could not say whether or not he had mentioned in the death report prepared by him that during inquest proceedings he had tried to ascertain cause of death of deceased Anju and that her parents had stated that it was due to poisoning. Attention of witness was drawn to his report Ex.PW10/H where this fact was not mentioned and apparent cause of death is mentioned as "Chakkar Aye the". He claimed that inquest proceedings are conducted to ascertain cause of death. Upon seeing rukka Ex.PW2/A witness claimed that statement of Sushil was in his handwriting. He claimed that words mentioned at point A-1 to A-1 are "Nahi to mere ko maar kar rakh denge". He claimed that he had written these words as per statement made by Sushil Kumar & he could not say if the same make any sense. He claimed that as he did not remember, he could not say as to how may packets of viscera had been got send to FSL or how many packets in all had been sent to FSL. He denied the suggestion that the viscera and other packets had been tampered with or that even the seals had been tampered with before being delivered to FSL. He denied the suggestion that he was deposing falsely. He further claimed that as he did not remember, he could not say if on05.08.2000 neither Sushil nor Bimla nor Neelam had made any statement to the effect that Anju had been poisoned. Witness claimed that he had not made any inquiry from Sonia Nursing Home.
13 PW-11 Sh. Raj Kumar proved photographs of dead body as Ex. PW11/A1 to A8 and the negatives thereof as collectively Ex. PW11/B. During course of cross examination he claimed that he had reached the hospital at around 10:30 - 10:45 AM and postmortem had ( SC No. 18/08) Page 31 of 49 already been conducted when he took the photographs.
14 PW-12 Smt. Bimla Mehta was mother of the deceased Anju. During course of examination in chief she reiterated the story put forward by the prosecution and by her son PW-2 Sushil. She further claimed that on 05.08.2000 she had gone to sasural of her son Sushil where she received a telephone call from Sushil who told her about having received a telephone call from Anju who was claiming that she was not feeling well and her in laws had administered something to her. She further stated that Sushil asked her to go back home. She further claimed that as she was about to move out, her daughter in law called her and stated that Anju was not felling well and had been taken to nursing home and that she would come to take her (the witness) to the nursing home. She claimed that when she and her daughter in law reached the nursing home, Sushil was already present there and that on her asking, her damaad or her son told that they were informed by the hospitalwalas that Anju was brought dead there and had already been taken back.
During course of cross examination, she claimed that her daughter in law had reached Rohini in TSR during morning hours. She could not tell the time when she had reached the nursing home. She claimed that they stayed at the nursing home for about 10-15 minutes before leaving for Anju's house. She claimed that all the five accused persons were present there, but she did not talk to any of them regarding Anju's death. She claimed that she had not met Anju's children and had never tried to meet them after her death. She claimed that police had not recorded her statement on the day Anju had died while she was in Anju's house. She further claimed that Neelam, her husband, Sushil, his wife and herself had remained in house of Anju ( SC No. 18/08) Page 32 of 49 till about 12 - 1:00 PM on the day she expired and then they all left together when Anju's dead body was being taken to police station in truck. She claimed that they all had also gone to the police station. She denied the suggestion that her daughter had not told anything to her on 18.06.2000 in respect of incident of 17.06.2000. She denied the suggestion that she had not received any telephone call at Rohini on 05.08.2000 or that in fact she had never gone there on that day. She claimed that she did not remember name of the person who told her that Anju had expired. She claimed that as she did not remember, she could not say if she had mentioned in her statement to the IO that Sushil had called her up at Rohini on05.08.2000 or had told her about his having received telephone call from Anju claiming that she was not feeling well and that her in laws had administered something to her. Attention of the witness was drawn to her statement Ex. PW-12/DA where this fact was not mentioned. She claimed that she did not remember the exact time she had received the said telephone call but it was around 9:00-10:00 AM. She admitted that she did not have any direct talk with Sushil at that time and that the telephone call had been attended by wife of Sushil who had told all facts. She admitted that after coming to know the said facts she did not try to telephonically contact Sushil or his wife or her daughter Neelam. She admitted that as on 05.08.2000 she had not complained against her son in law. She denied the suggestion that Anju had died a natural or accidental death or that her son and herself in connivance with the police had falsely implicated the accused persons with intention to extort money from them. She denied the suggestion that she was deposing falsely.
15 No other witness was examined by the prosecution and accordingly prosecution evidence was closed and thereafter statements ( SC No. 18/08) Page 33 of 49 of accused persons were recorded wherein they all claimed that they were innocent and had been falsely implicated in the present case. None of the accused chose to lead any defence evidence.
16 During course of her arguments, it was submitted by Ld. Addl. PP for State that it was settled principle of law that FIR is not an encyclopedia of facts of the case. It was submitted that mental state of family members of the deceased immediately after her death have to be taken into consideration. While referring to the statement made by brother of deceased, on basis of which FIR was registered, it was submitted that incident of 17.06.2000 about which brother, mother and sister of the deceased had stated was infact directly related to death of the deceased which took place on 05.08.2000. It was submitted by Ld. Addl. PP for State that principle of res-gestae was applicable in the present case as the incident of 17.06.2000 though not in issue was directly connected with the fact that is in issue i.e Anju's death, so as to form part of same transaction and hence incident of 17.06.2000 was relevant by itself. It was further submitted that telephonic conversation of Anju with her brother Sushil Kumar in the morning on 05.08.2000 was infact her dying declaration as it related to circumstances which lead to her death. While drawing attention of this court to testimony of Pw-2 Sushil, it was submitted by Ld. Addl. PP for State that the said witness had proved case of prosecution to the hilt. It was further submitted that the defence could not take any benefit from non-examination of children of the deceased as the children are presently in care and custody of the accused persons and if desired, the accused could have produced the children in defence. It was submitted that as the accuseds have not examined the said children in defence, they can not take any benefit from the prosecution not having examined them. It was further submitted by ( SC No. 18/08) Page 34 of 49 Ld. Addl. PP for State that onus to explain cause of death of Anju was upon the accused persons as Anju was in her matrimonial home immediately before her death. While relying on Mannu Sao Vs. State (2011 I AD (CRL.) (S.C) 233) it was submitted that it was not always mandatory for the prosecution to establish motive as it is just one of the ingredients for conviction of an accused. Ld. Addl. PP for State submitted that present was a case of circumstantial evidence and that the chain of circumstances were completed to point out towards guilt of the accused persons.
17 Ld. Counsels for the accused persons on the other hand submitted that prosecution had miserably failed to prove its case in this case. Ld. Counsel for the accused persons pointed out that as per case of the prosecution, PW-2 Sushil who was brother of the deceased had reportedly received a telephone call from the deceased in the morning hours of 05.08.2000 and as per testimony of PW-2, his sister had told him that accused persons had administered something to her and that she was not in a position to speak. In this regard, it was submitted that even thereafter, brother of the deceased went ahead to his shop rather than going to house of his sister. It was submitted that the said conduct was not that of a brother. It was further submitted by Ld. Counsel that as per allegations, PW-2 was informed about Anju's death by his wife. The said witness, it was submitted, was a material witness, but was never examined during course of investigation. It was further submitted that the deceased Anju had allegedly given phone call to her brother from house of a neighbour and no investigation to ascertain identity of the said neighbour was conducted. Ld. Counsel further submitted that the eldest son of the deceased at the time of incident was aged about 9 years but was never examined by the investigating agency to ascertain the truth. Ld. Counsel further ( SC No. 18/08) Page 35 of 49 submitted that initially, no suspicion had been raised by any of the family member of the deceased upon her husband i.e accused Suresh. It was submitted that rather Suresh was initially projected as being a victim along with the deceased Anju. Ld. Counsel submitted that it was only subsequently after many months that some allegations were made by Anju's family members against Suresh. In this regard, it was submitted that the said facts supported claim of the defence that initially the complainant's side wanted Suresh to appear as a witness against his parents and other relatives, but as Suresh refused, he was falsely implicated in this case. Ld. Counsel further drew attention of this court towards the rukka statement of the complainant (Ex. PW-2/A). It was submitted that there were overwriting in the said statement and no explanation came on record regarding the same. While on this, it was further submitted by Ld. Counsel that FIR in the present case had been registered at about 1:50 PM, but PW-2 Sushil Kumar in connivance with the IO got placed on record a letter (Ex. PW-2/C) wherein it had been claimed that no FIR had been got registered till 5 PM. It was submitted that it was in this letter that the story of the accused having administered something to the deceased was introduced for the first time. Ld. Counsel submitted that as the said letter was addressed to the SHO, but was never put up before him, it was apparent that it was a fabricated document prepared subsequently to introduce the story of poisoning. Ld. Counsel further submitted that in a case of circumstantial evidence, it was necessary for the prosecution to prove motive of the accused persons being murderer of the deceased Anju. In this regard, Ld. Counsel pointed out that the deceased Anju had been married for the past more than 10 years before her death and there was no history of any family dispute between the deceased and her in laws. Referring to incident 17.06.2000, it was submitted that the material contradictions in ( SC No. 18/08) Page 36 of 49 testimony of the witnesses made the said incident doubtful. Ld. Counsel submitted that no traces of poison could be found when house of the accused was searched. Ld. Counsel further submitted that a perusal of testimonies of PW-7 Dr. Madhulika, PW-8 Dr. Komal and PW-10 SI Randhir was sufficient to show that the viscera pullandas had been tampered with to introduce the story of aluminum phosphide poisoning at subsequent stage. Attention of this court was also drawn by Ld. Counsel towards the inquest proceedings and it was submitted that as per Ex. PW10/H, cause of death was mentioned as giddiness i.e "Chakkar aye the". Ld. Counsel submitted that there was no report of death by poisoning. Referring to the statement of Dr. Madhulika and Dr. Komal Singh, it was submitted by Ld. Counsel that in case of aluminum phosphide poisoning, vomit was essential, while in the present case there was no vomiting. It was further submitted that there were contradictions in testimony of the witness as to whether one or two pullandas of viscera had been prepared.
18 Ms. Rashmi, Ld. Amicus Curiae for accused Sudershana Rani while adopting arguments advanced by the senior counsel further submitted that conduct of Sushil was highly improbable in as much as no brother would go to his work on hearing complaint made by his sister to the effect that she was going to be killed. It was further pointed out that PW-10 during course of his testimony had admitted that Sushil Kumar had remained with him at the spot till 5 PM on 05.08.2000. It was submitted that this all by itself was sufficient to put in doubt genuineness of Ex. PW2/C and consequently the story of poisoning. Ld. Amicus Curiae further submitted that the letter Ex. PW2/F addressed to ACP was also doubtful as the same did not bear any receipt from office of the ACP and as was admitted by PW-10, was handed over to him directly by Sushil.( SC No. 18/08) Page 37 of 49
During course of their submission, Ld. Counsel for the accused persons had placed reliance on Jaipal Vs. State [2002 (7) Supreme today - 172]. On basis thereof it was submitted that the prosecution having failed to prove chain of circumstances to fasten guilt on the accused of having administered poison to the deceased, the accused persons were entitled to acquittal. While referring to Geeta & Anr. Vs. State (163 (2009) DLT - 268) it had been submitted that where the dying declaration was not of unimpeachable quality, no conviction can be placed solely upon it without any corroboration. While placing reliance on State Vs. Gulzarilal (AIR 1979 SC-1382) it was submitted that as the present case rests purely on circumstantial evidence, lack of motive undoubtedly plays an important part which could prove guilt of the accused. It was submitted that the accused can be convicted on basis of circumstantial evidence only if the circumstances were wholly inconsistent with the innocence of the accused. While relying on Harijana Thirupala and Ors. Vs. Public Prosecutor [(2002)(6) SCC-470)] it was submitted that there was a presumption in favour of innocence of the accused and wherever there is a doubt, benefit of doubt has to be granted to the accused. It had been prayed that the accused persons be acquitted.
19 This court has given thoughtful consideration to arguments advanced and has also perused the record including the judicial pronouncements relied upon.
20 It is often said that truth sits on lips of a person dying. It is also said that no one would wish to meet his Creator with lie in his mouth. It is on basis of these that reliance is placed on dying declarations. However, it is also settled principle of law that a dying ( SC No. 18/08) Page 38 of 49 declaration must always pass the scrutiny by the courts as after all it is only hearsay evidence and is admissible and relevant only because the person who made the declaration was no longer alive and cannot be produced before the court for testifying. It was held in Geeta Vs. State (163 (2009) DLT 268) that while there was no rule of law suggesting that a conviction cannot be based solely upon a dying declaration, the courts, as a rule of prudence must look for other corroborative material. It was further observed that if the dying declaration is suspicious or suffers from some infirmity, then it should not be acted upon without any corroborative evidence.
21 To similar effect was observation made in Paniben Vs. State [(1992) 2 SCC 474] wherein it was observed that where dying declaration is suspicious, it should not be acted upon without corroborative evidence and a dying declaration which suffers from infirmity cannot form basis of conviction.
22 In the present case before this court, the dying declaration on record is not from the lips of the person dying i.e. the deceased Anju but is what was claimed by her brother Sushil Kumar to have been stated to him.
23 A perusal of testimony of the said Sushil Kumar (PW-2) goes to show that he had been changing his stand time and again. In his first statement (Ex. PW-2/A), the witness had claimed that on 5.8.2000 his sister had given a telephone call to him and while crying, she told him to take her away or else "Nahin to mere ko maar denge". As per this witness, when police had not recorded any FIR despite complaint being made, he wrote a letter addressed to SHO PS Nangloi. The same was proved as Ex. PW-2/C. The story that had ( SC No. 18/08) Page 39 of 49 been put up in this application was to the effect that Anju had called him up in the morning on 5.8.2000 and had stated "Veer mere inhone kuch khila de hai, mere sai baat bhi nahi hoti. Mujhe yahan se aakar le jao nahin to yeh mere ko sab mil kar maar dange". In yet another statement of this witness allegedly recorded on 5.8.2000 (Ex. PW-2/DA) the witness had claimed that his sister had called him up in the morning and stated "mere ko saas va sasur tha jeth Naresh Kumar ve Devar Jagdeep @ Tinkoo ne mila ker kuch khila diya hai. Tum mujhe aakar le jao. Mujhe yeh log maar denge".
24 It is clear from the aforesaid that the stand taken by PW-2 Sushil Kumar as to what had been stated to him by Anju immediately before her death had been shifting time and again. As such, in view of settled principles of law, the alleged dying declaration cannot be considered gospels truth and does require corroboration from independent sources.
25 First of all, the conduct of PW-2 has to be observed. Here is a brother who receives a telephone call from his sister in the morning hours of 5.8.2000 wherein she had alleged that she would be killed by her in-laws and requests the witness to take her away from her matrimonial home. The brother instead of going to house of his sister, goes for his work after telling her to come to their mother's house. Significantly, at that time children of deceased had gone to school and she reportedly told her brother that she would come after children return from school. The conduct of PW-2 leaves much to be desired. A story had been put forward by the prosecution to the effect that Anju was not being kept well in her matrimonial home and that even earlier, she was maltreated by her in-laws on the night of 17.6.2000 regarding which she had lodged a complaint with her ( SC No. 18/08) Page 40 of 49 mother and brother on 18.6.2000. Despite the same, this brother does not go to help his sister but rather goes away for his workplace.
Not only this, statement of Sushil Kumar was recorded by SI Randhir Singh and on basis thereof rukka was prepared and sent for registration of FIR at 1.30 PM. The same is apparent from Ex. PW-10/A. The FIR came to be recorded at about 1.50 PM. The same is apparent from Ex.PW10/B & Ex. PW1/A. Still, in application Ex. PW-2/C the same Sushil Kumar states that in the morning they had come to get their FIR registered but FIR was not registered by police till 5.00 PM. In this regard it would be pertinent to mention that as per IO SI Randhir he had met Sushil for the first time at about 12.45 PM and Sushil had remained with him at the spot till 5.00 PM. The witness further went on to state that he himself had left the spot at 6.00 PM and that Sushil had left the spot a little earlier. This testimony of PW-10 SI Randhir Singh puts in doubt genuineness of the letter Ex. PW-2/C wherein Sushil mentions that he had been sitting in the PS from morning till 5.00 PM but his statement was not recorded. It would also not be out of place to mention herein that although the letter Ex. PW-2/C forms part of the charge sheet , IO had claimed that he could not say whether or not he had received said letter during course of investigation. He had further claimed that he had never investigated the case in connection with contents of the said letter. In this regard it would also be pertinent to mention that during course of his cross examination, PW-2 had admitted that the complaint Ex. PW2/C had been made by him about 2-3 hours after his statement Ex. PW2/B was recorded and had claimed having handed it over to SI Randhir in PS itself . He had further mentioned that accused Jagdeep and Kishan along SI Randhir and he himself were in house of accused persons between 4-5 PM on 05.08.2000. Significantly, statement Ex.
( SC No. 18/08) Page 41 of 49PW-2/B of this witness was regarding identification of dead body and apparently had been recorded after registration of FIR. Claim of PW-2 that his complaint Ex. PW-2/C had been made about 2-3 hours after his statement Ex. PW-2/B was recorded and factum of FIR not having been recorded till 5.00 PM as mentioned in Ex.PW-2/C, in considered opinion of this court puts in doubt genuineness of complaint Ex. PW-2/C wherein story of something having been administered to Anju was introduced for the first time. During course of his cross examination, PW-2 had claimed having reached the police station at about 11 AM and having remained there for 30-45 minutes. He had further claimed that thereafter they had gone to house of the accused persons where they reached at about 12 noon and had remained there till about 4-4:45 PM. Apparently, this part of testimony of Pw2 made in court runs contrary to contents of complaint Ex. PW2/C and puts it in doubt. Not only this, the said complaint Ex. PW-2/C apparently is addressed to the SHO PS Nangloi. PW-1 ASI Darshana during course of her cross examination had admitted that she was DO of PS Nangloi on 5.8.2000 and had not received any complaint or application in respect of present case on 5.8.2000. Even the letter Ex. PW-2/F addressed to the SHO PS Nangloi with a copy having been sent to ACP, Punjabi Bagh, in opinion of this court is not devoid of doubts regarding genuineness as it does not bear any receipt stamp of the SHO or the ACP.
26 As per PW-2 Sushil Kumar and PW-12 Bimla Mehta, intimation about Anju not feeling well and about her being taken to Nursing Home (as claimed by PW-12) and about her death (as stated by PW-2) had both been received by them from wife of Sushil Kumar. That being the position, it appears that wife of Sushil Kumar was the first person from amongst Anju's maternal family who came to know ( SC No. 18/08) Page 42 of 49 about her being not well or about her death. Apparently, she was a very material witness in the present case. Surprisingly, she has not been examined by the prosecution. She does not appear to have even been interrogated during course of investigation. Non examination of such a material witness leads this court to draw adverse inference against the prosecution. No explanation whatsoever has come on record in this regard.
27 There is also nothing on record as to why no investigation was conducted from the neighbours. There has been no investigation whatsoever as to from whose house Anju had given the alleged telephone call to her brother. It was stated by PW-2 Sushil that Anju had given telephone call from one of her neighbours. No investigation was directed as to from which neigbour's house the alleged telephone call was made by Anju.
28 Significantly the eldest son of Anju at the time of incident was aged about 9 years. Although it had been sought to be argued on behalf of the accused persons that the said son was not examined and therefore adverse inference should be drawn against the prosecution for with holding material witness, in considered opinion of this court no weightage can be given to such an argument. The said boy admittedly was presently with the accused persons who have failed to examine him in their defence.
29 A perusal of the records of this case goes to show that no needle of suspicion had been pointed by family members of Anju towards Suresh as being one of the accused in this case. Rather, Suresh was being projected as being a co-victim along with Anju at hands of his parents and brothers. It is not clear from record as to what ( SC No. 18/08) Page 43 of 49 happened which turned the needle of suspicion towards Suresh. No explanation whatsoever in this regard has been brought on record by the prosecution, PW-2 Sushil, PW-12 Bimla Mehta or PW-10 IO SI Randhir Singh. Even this court has been left guessing and wondering as to what had transpired to make Suresh a co-accused in this case. In absence of any explanation in this regard from the side of prosecution, this court finds substance in submission made on behalf of defence when it was suggested that initially Suresh was not made an accused in this case as the complainant's side wanted to lure him to depose against his parents and brothers and support case of the complainant and subsequently as he refused to oblige the complainant, even he was implicated in the present case. The records and facts of the case do support the contention of defence in this regard. While on this, it would not be out of place to mention that even during course of entire investigation, while Suresh was not being projected as an accused, no statement of his was recorded under Section 161 Cr.PC.
30 That being the position, it appears that initially case of prosecution did not implicate the accused Suresh as an accused in this case. It was only subsequently that the line of investigation was changed to include Suresh as an accused. Significantly, it was never case of the prosecution at the time of registration of FIR. In Kalyan & Ors. Vs. State (2001 (2) JCC(SC) 203) It was observed that where case of prosecution as sought to be proved at the trial, appears to be different from one as narrated in the FIR, the accused were entitled to an order of acquittal. Prosecution can not be permitted to set out the case which is in contradiction to the version stated in FIR.
31 Although admittedly there are some overwritings in Ex. PW2/A, despite best efforts of the Ld. Addl. PP for State, Ld. Defence ( SC No. 18/08) Page 44 of 49 counsel and of this court itself, no head or tail of the same could be made out. It could not be deciphered as to what was written which was over written.
32 Although during course of his arguments much importance was given by Ld. Counsel for accused to contradictions in testimony of witnesses as regards incident of 17.06.2000, in considered opinion of this court, not much importance can be assigned to the same as the said incident of 17.06.2000 took place much prior to the actual date of present incident i.e 05.08.2000 and as the said incident of 17.06.2000 appears to be one off incident with no similar incident having taken place during 10 years of marriage of the deceased. As such, this court does not assign any importance to the said incident of 17.06.2000.
33 Let us now take a look at the inquest papers and postmortem report. During course of inquest proceedings, SI Randhir Singh prepared brief facts of the case which were proved as Ex. PW10/G. In the same, it was mentioned that brother of the deceased had mentioned "meri behen ko uska sasur, saas, jeth va dever tang karte the". The brother of the deceased further claimed to have stated that it was on telephone that he came to know "Use Chakkar Aa Rahe Hain Aur Tabiyat Kharab Hai". The same was in respect of Anju. Similarly, in the death report [form no. 25.35 (1)(b)] it was mentioned that there was no external sign of injury and the apparent cause of death was mentioned to be "Chakkar Aye The". The said inquest papers had been sent along with dead body for postmortem examination. That being the position, it is apparent that till that stage, there was no suspicion of the deceased Anju having been administered any poison or poisonous substance. In State Vs. Ranjit [169 (2010) DLT-536] while referring to some other judicial pronouncements, it ( SC No. 18/08) Page 45 of 49 was observed that the purpose of inquest proceedings is to find out whether the the death was homicidal or not and not for making a note in regard to identifying facts relating thereto. Absence of anything in the inquest papers regarding there being any allegations or sign of poisoning, leads to the conclusion that till that stage, there was no story of any poisonous substance having been administered to the deceased Anju. Significantly, inquest papers were prepared much after registration of FIR.
34 The viscera and other exhibits seized in this case and sent to the CFSL also need a close look. As per seizure memo Ex. PW1/D, Ct. Ramesh had reached the police station after postmortem and had handed over to the concerned officer one Viscera Pullanda sealed with the seal of DKS along with one envelop containing Anju's clothes and a sample seal. Now significantly no witness was examined by the prosecution regarding deposit of viscera pullanda in the malkhana. No entries in Malkhana Register or Road Certificate have been proved on record in this case. No witness has claimed that the same remained in his safe custody. No witness was examined by the prosecution to the effect that the pullanda had been handed over to FSL for examination. Important link evidence is missing and possibility of pullandas being tampered with is not ruled out. In absence of all these, the FSL report Ex. PW7/A assumes great importance as it is mentioned therein that the stomach and piece of small intestine was received in a sealed jar while pieces of liver, spleen and kidney were received in another sealed jar. PW-8 Dr. Komal Singh in this regard had claimed that the entire viscera was kept in two separate jars and the two jars were handed over by him to SI Randhir. Now SI Randhir when examined as PW-10 has only stated that viscera in a wooden box sealed with the seal of DKS was handed over to him by the doctor and the same was ( SC No. 18/08) Page 46 of 49 handed over by him to the Ct. Rakesh. It is apparent that one is left guessing as to whether the viscera was kept in two plastic jars or in a wooden box. No explanation or clarification has come on record in this regard. However, the same does support claim of the defence to the effect that the viscera was tampered with.
35 Doubt has also been raised by the defence as regards genuineness of the postmortem report Ex.PW8/A and the postmortem proceedings. During course of cross examination of PW-8, Ld. Counsel for defence had prayed for summoning of the postmortem register. On perusal of the postmortem register, it transpired that the noting made at point Mark-Z on the postmortem report Ex. PW8/A did not find mention on the corresponding sheet of the paper of the postmortem register (Mark-P8A). The same was in respect of use of preservatives in the viscera. The same was admitted by PW-8 Dr. Komal Singh. During course of his cross examination Dr. Komal Singh had stated that he suspected poison even at the time of conducting of the postmortem and preparing the report. He admitted that the said fact was not specifically mentioned in the report Ex. Pw8/A. He further claimed that he had not observed any foul smell emitting from the body during conduct of postmortem.
36 In Jaipal Vs. State [2002(7) Supreme To-Day-172] reference was made to Modi's Medical Jurisprudence and Toxicology and to a paper entitled "Toxicology - Acute Aluminum Phosphide Poisoning in Northern India" Written by Dr. Mitra Basu and Prof. S.B. Siwach. While placing reliance on both, it was inter-alia observed by Hon'ble Supreme Court of India that signs of poisoning by aluminum phosphide are similar to poisoning by zinc phosphide and the chief symptoms after the administration are a vacant look, ( SC No. 18/08) Page 47 of 49 frequent vomiting with retching, tremors and drowsiness followed by respiratory distress at death. It was observed that aluminum phosphide has a smell and if any celphos tablet is kept open in the room, it will fill the room with the smell. It was further observed that such like patient, who have consumed this poisoning remain conscious and continue to pass urine and vomiting is a prominent feature associated with epigastric burning sensation and the patients will be smelling foul (garlic like) from their breath and vomitus. It was further observed that presence of powder or symptoms of damage caused by phosphine must have been detected in stomach, intestine, liver, kidney and gastric lavage in such like cases.
37 In the present case before this court, none of these symptoms find mention in the postmortem report Ex.PW8/A. Although the report had mentioned that cause of death has been kept pending till chemical examination report of viscera is received, the report is significantly silent about any of symptomatic damage to the stomach, intestine, liver, kidney etc having been caused by aluminum phosphide. All these, in considered opinion of this court, makes the prosecution case suspected. It was observed in Harizana Thirupala and Others Vs. Public Prosecutor [(2002) 6 SCC 470] that in case where the court entertains reasonable doubt regarding the guilt of the accused the benefit of such doubt should go in favour of the accused. It was observed in State Vs. Gulzarilal [AIR 1979 Supreme Court 1382] that suspicion however grave it may be, can not take the place of proof. It had been observed in Kaliram Vs. State (AIR 1973 SC-2773) the golden threat which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt ( SC No. 18/08) Page 48 of 49 of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.
38 The long distance between may be true and must be true has to be travelled by the prosecution solely on its own legs with the help of reliable cogent and legally admissible evidence. In the present case before us, in considered opinion of this court, prosecution has miserably failed to travel the said distance between may be true and must be true. In fact, the entire case of prosecution is surrounded by dark clouds of doubt which render case of the prosecution suspect. As already mentioned herein above, benefit of doubt has necessarily to be granted to the accused persons. No doubt a life has been lost, but prosecution has failed to establish on record guilt of accused persons in that regard.
39 Accordingly, keeping in view all the aforesaid, while granting of benefit of doubt to the accused persons, they are ordered to be acquitted in this case.
Announced in open court (M. R. SETHI)
on 29.03.2011 ADDL. SESSIONS JUDGE:
(FTC) (WEST):DELHI
( SC No. 18/08) Page 49 of 49