Delhi District Court
State vs Sunil @ Nine & Ors. on 28 March, 2013
SC No.57/11
FIR No.50/09
State Vs Sunil @ Nine & Ors.
PS J.P. Kalan
U/s 302/120B/201/34 IPC
IN THE COURT OF SHRI VIJAY KUMAR DAHIYA
ADDL. SESSIONS JUDGE : DWARKA COURTS:
NEW DELHI
In the matter of :
SC No. : 57/11
FIR No. : 50/09
Police Station : J.P. Kalan
Under Section : 302/120B/201/34 IPC
Received on assignment : 29.08.2009
Reserved for orders on : 20.03.2013
Judgment announced on : 28.03.2013
State Vs. Sunil @ Nine
S/o Sh. Hari Ram Jat
R/o VPO Dhansa, New Delhi
Harish @ Sameer @ Ponu
S/o Sh. Rajbir Singh
R/o VPO Dhansa, New Delhi
Madan @ Tinku
S/o Sh. Ramesh Prakash
R/o VPO Dhansa, New Delhi
J U D G E M E N T
1. The accused persons are sent for trial for the offences punishable under Section 302/120B/201/34 IPC.
2. It is alleged that PCR call was received, on the basis of SC No.57/11 Page 1 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC which DD No. 26A dated 01.05.2009 at 10.45, details of which are as under: A caller has made a call from Mobile No. 9250955383 resident of house of Hira Ram, Dhansa Village, near Allahabad Bank, who had apprehended his brother, who has murdered his wife.
3. The said DD was handed over to SI Jagdish Chander who alongwith ASI Jagat Singh left for the spot. Information was sent to the SHO who alongwith SI Rajnesh Yadav went to the spot. It is further alleged that IO/Inspector on receiving of DD No. 45B dated 01.05.2009 also reached at the spot. It is further alleged that IO after taking DD No. 26A alongwith HC Bishan reached at the house of Rajesh, S/o Sh. Hari Ram where SHO alongwith SI Jagdish Chand, SI Rajnish Yadav, SI B.S. Ahlawat and ASI Jagat Singh were present. It is further alleged that Rajesh produced his brother Sunil @ Nine and stated that Sunil @ Nine confessed before him that Sunil @ Nine has murdered his wife and accused Sunil @ Nine was interrogated who confessed that he murdered his wife. He alongwith coaccused Harish @ Sameer and Madan @ Tinku planned the murder of his wife by strangulating her with rope and dead body has been thrown in Chhawla canal. It is further stated that both the accused were apprehended from their house and they also confessed that the deceased has been murdered. Accordingly, three police parties were formed and IO/Inspector alongwith accused Sunil @ Nine were in the SC No.57/11 Page 2 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC first party and accused Madan @ Tinku was taken by police party headed by SHO/Inspector Baltej Malik and SI Rajnish Yadav along with accused Harish @ Ponu @ Sameer left towards the Chhawla Canal. It is further alleged that all the three accused took the police parties towards the road leading from Chhawla Village to Dhul Saras Village and before crossing the chhawla village they stated to take the turn on left side and after walking a distance of 150200 yards they pointed out the place where they had thrown the dead body of Monika after murdering her and accused persons got recovered the dead body which was sealed in gunny bag. The place where the dead body of deceased Monika, wife of accused Sunil @ Nine, which was concealed prior to throwing the dead body in a heap of husk in a room on 28.04.2009 in village Dhansa, was also pointed out by the accused persons and from the said room accused persons took the deadly body and on next day they have thrown the dead body, which was brought in the Maruti Van, in Chhawla Canal. On the said information, offence U/s 302/120B/201 IPC was registered by sending the rukka.
4. It is further stated that IO/Inspector prepared the site plan and lifted the exhibits as per seizure memo. Accused persons were arrested, who further made disclosure statements which were reduced in writing and accused Sunil @ Nine confessed that he was got married with Monika D/o Ram Niwas against his will on SC No.57/11 Page 3 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC 01.07.2008 as he has not seen his wife before marriage and after seeing his wife she was not found by him to his liking. He confessed that on 04.07.2008 after honeymoon he realized that his wife has also established physical relations with some one and he got feeling of anguish to have got married with her. He has further confessed that when he tried to get rid of Monika, his inlaws threatened him to implicate him in a dowry case and he has shared his feeling with his friends Harish @ Ponu @ Sammer and Madan @ Tinku who are resident of his village. He has further stated that his friends tried to give him some solace by stating that accused Sunil @ Nine should get rid of Monika by finishing her.
5. He has further stated that on 05.03.2009 his wife Monika has gone to her parental home and therefore, on 25.04.2009 all the three accused planed at the house of the accused Sunil @ Nine that they will take Maruti Van bearing registration no. DL 8CQ 4715 from his owner Ajay Kaushik on the pretext that the said Maruti Van is being taken for hire and as per planning accused Sunil @ Nine and accused Harish @ Sameer @ Ponu will bring gunny bag and rope in the said maruti van and go to village Nidana and will call the wife of the accused Sunil @ Nine on the pretext of bringing her for outing in Gurgaon without disclosing anything to anybody. Accused Sunil @ Nine further confessed that it was planned that as and when they will get the chance they will strangulate Monika with the said rope and SC No.57/11 Page 4 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC after putting the dead body in the said gunny bag they throw her away in the drain. Both the accused instructed accused Madan to stay in the Dhansa Village as the deceased would see any third person then she might refuse to accompany the accused persons. It is further confessed by accused Sunil @ Nine that on 28.02.2009, he brought the Maruti Van of his van owner, Ajay Kaushik and alongwith his friends/coaccused Harish reached village Nidana and called his wife Monika at about 4 PM from her parental home on the pretext for outing in Gurgaon and after taking Monika he went to Mata Sheetal Mandir, Gurgaon and after taking food came to village Dhansa at about 10.30 am on 28.04.2009 and parked the said Maruti van in the open vacant plot of Manohar Balmiki and Harish went from there and accused Sunil @ Nine was left with his wife Monika in the said maruti van and they sit on the back seat and started talking and accused Sunil @ Nine tide the hands of his wife with scarf (chunni) and brought out the rope and strangulated the deceased and he called coaccused Harish @ Sameer and Madan @ tinku but accused Madan @ Tinku showed his unwillingness in coming to the spot of incident and the accused persons concealed the dead body of deceased Monika in the heap of husk in the room of a plot of Prakash Prajapat. Accused Sunil @ Nine has further confessed that they planed to dispose off dead body and on the advice of accused Harish, had thrown the dead body in the Chhawla Canal by putting bricks in that gunny bag, so, that dead body might not float in water. Accused SC No.57/11 Page 5 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC Sunil has further stated that a phone call had come from the side of his inlaws on 30.04.2009 to know whereabout of Monika and his in laws have threatened that they will bring the Panchayat and on strictly asking of his brother, accused Sunil has made him clear that he has murdered his wife Monika with coaccused and he could got recover the dead body of the deceased.
6. It is further alleged that during interrogation accused Harish and Madan also made the disclosure statements and admitted their guilt. Accused Harish confessed that accused Sunil @ Nine has stated that he was not liking his wife as he was doubting her character and accused Sunil @Nine had given a suggestion that he would murder his wife and on account of being his friend accused Harish also agreed for participating in the said commission of crime, and coaccused Madan has also agreed to participate in the said commission of crime, thereafter, on 27.04.2009 all the three accused persons had planned at the house of Sunil that Sunil @ Nine will bring his wife namely Monika and as per planning they will keep the rope and gunny bag in the van and after strangulating her they would throw the dead body in some drain. Accused Harish has further confessed that as per planning Sunil brought the maruti van from Ajay Kaushik and accused Harish alongwith accused Sunil @ Nine had brought Monika from her parental home in village Nidana and brought her at Mata Sheetal Mandir, Gurgaon and thereafter to SC No.57/11 Page 6 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC village Dhansa and parked the said Maruti van at 11 PM in the vacant plot of Manohar Balmiki and he went to his house and accused Sunil @ Nine with wife were left in the Maruti van and after that accused Sunil @ Nine told accused Harish that he has murdered his wife and accused Harish came back at the spot and after keeping the dead body in gunny bag concealed the same in the heap of husk in a room in the plot of Prakash Prajapat and on next date i.e. on 29.04.2009 all the three accused went to the plot of Prakash Prajapat and the body of Monika was taken out from the gunny bag and halves of bricks were filled in the said bag so that dead body could not came out from water and thereafter, the said gunny bag was thrown in Chhawla Canal.
7. It is further alleged that accused Madan has also confessed his guilt and stated that accused Sunil @ Nine is his friend and after marriage accused Sunil @ Nine was not happy with his wife as he was doubting her character and he wanted to get rid of his wife but she was not willing to give divorce to accused Sunil @ Nine and accused persons had planned on 27.04.2009 to murder deceased Monika after bringing her from her parental home and as per plaining accused Sunil @ Nine and Harish has to bring Monika from her village and they will take the rope and gunny bag alongwith them and after strangulating her will keep the dead body in the gunny bag and throw the same in the drain. He has further confessed that on SC No.57/11 Page 7 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC 28.02.2009 accused Sunil @ Nine and Harish went to village Nidana and brought Monika to village Dhansa. Accused Harish had went to his house and accused Sunil had strangulated his wife with rope and informed accused Madan regarding the murder of his wife and called him at the spot but accused Madan has shown his unwillingness to come to the spot. He has further stated that on 29.04.2009 at the house of accused Madan it was planned that dead body of the Monika will be thrown in the Chhawala Canal. On 29.04.2009, the dead body of Monika was taken out from the house of Prakash Prajapat from the heap of husk in the room and they had filled in some halves of bricks in the said gunny bag so that dead body could not float in water and threw the dead body in the canal. It is further stated that accused persons has also pointed out that the place where the accused persons strangulated the deceased in the Maruti van in the plot of Manohar Balmiki as well as the place where the dead body was concealed after murder of Monika in the room made for keeping husk, belonging to Prakash Prajapat.
8. Father of the deceased namely Ram Niwas was informed and he joined the investigation, who stated that he got married his daughter to the accused Sunil S/o Sh. Hukum Chand as per Hindu rights and has given the dowry as per his capacity. He has further stated that after marriage his daughter started living in her matrimonial house and Sunil @ Nine had brought her to her parental SC No.57/11 Page 8 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC house but as and when his daughter came to her parental house she made complaint that accused Sunil @ Nine always keeps on demanding money as he has to purchase an Alto Car and he further requested Ram Niwas to purchase the said car but complainant showed his helplessness in not having money. He has further stated that for the last 1 ½ months his daughter was residing in her parental house because accused Sunil has beaten her and she has made a call and his son Deepak had brought her back to her parental house and no body from inlaws had came to bring her back, otherwise, there was a conversation oncetwice on mobile phone. He further stated that mother of the accused called his wife on phone to sent back Monika alongwith brother and she had further directed that some amount may also be sent but his wife had shown her incapacity to pay the amount. It is further stated that next day accused Sunil @ Nine had made a call and stated that he was coming to bring Monika back and on 28.02.2009 at about 3:00 pm he had come to bring Monika and he alongwith his wife was not present at home and Monika and her brother Vicky were present and accused Sunil @ Nine brought Monika back to her matrimonial home in their absence and after coming from fields, he came to know that accused Sunil @ Nine had come and taken Monika to matrimonial house. On 30.04.2009 he had made a call to know about the welfare of Monika and accused Sunil @ Nine had not talked to them properly and stated that he has not brought Monika to her matrimonial house and Ram Niwas felt SC No.57/11 Page 9 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC some doubt and he went to Village Dhansa alongwith 'Panchayat' but accused Sunil @ Nine has refused to come to the Panchayat and Panchayat assured that two days time may be given to trace Monika and, thereafter, action may be taken. It is further stated that after panchayat proceedings were over he alongwith brother Jaiveer went to the house of the accused Sunil there accused Sunil, his mother and brother alongwith two other persons were present and enquired about the daughter Monika but mother of the accused Sunil stated that they have done what they had wanted to do now the complainant is at liberty what he want to do. On 02.05.2009, he received the call from police station in the morning that dead body of Monkia was received and he was summoned in the police station. Statement of the witnesses were recorded and samples were sent to FSL Rohini and chargesheet was filed.
9. After supplying copies to the accused as per law, case was committed to the court of sessions.
10. After due deliberation, charge under Section 302/120B/201/34 IPC was framed against the accused persons to which they pleaded not guilty and claimed trial.
11. Prosecution was called upon to adduce evidence to establish its case as per law. Prosecution has tendered 23 witnesses SC No.57/11 Page 10 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC in all in support of its case namely:
PW1 Sh. Ranbir Singh
PW2 Sh. Dalbir Singh
PW3 Smt. Darshana
PW4 Sh. Ajay Kumar Kaushik
PW5 Sh. M.N.Vijayan
PW6 Sh. Manohar Lal
PW7 Sh. Manjeet singh, Tehsildaar, Department of
Revenue, District South West, Government of Delhi.
PW8 HC Omvir Singh
PW9 Sh. Rajesh
PW10 Sh Jaiveer
PW11 Sh. Ram Niwas
PW12 Sh. Vikky
PW13 SI Rajnish Yadav
PW14 HC Bishan Singh
PW15 ASI Ajeet Singh
PW16 Const. Hardeep Singh
PW17 HC Bala Ram
PW18 HC Kishore Kumar
PW19 Dr. Pravinder Singh, Junior Specialist, Forensic Medicine, RTRM Hospital, Jaffarpur, Delhi PW20 Lady Const. Monika PW21 Inspector B.S.Malik PW22 ASI Attar Singh SC No.57/11 Page 11 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan
U/s 302/120B/201/34 IPC
PW23 Inspector O.P.Meena
12. The prosecution examined 23 witnesses to prove the charges against the accused. The Ld. APP also tendered in evidence the FSL report. The accused was examined U/s 313 CrPC where he denied all the incriminating circumstances put to him and claimed false implication. The accused has chosen not to lead any evidence in defence.
13. I have learned Ld. APP for the state. Ld. Counsel to the accused and have perused the entire material on record.
14. Ld. State counsel has submitted that accused Sunil @ Nine had brought his wife to her matrimonial home from her parental home and in connivance with coaccused Harish and Madan committed murder of his wife Monika on 28.04.2009 and after murdering her, kept her dead body in a husk room and in the night on next day, he threw the dead body in the canal and at the instance of the accused persons, dead body of Monika, wife of Sunil @ Nine recovered in the intervening night of 01/02.05.2009. Therefore, from the evidence led by the prosecution, it has been proved on record that the accused Sunil @ Nine alongwith his coaccused was last seen in the company of the accused and the deceased was brought to her matrimonial home and it was incumbent upon accused Sunil @ SC No.57/11 Page 12 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC Ninel to explain where his wife has gone and even in the Panchayat brought to the village Dhansa by the parents of the deceased Monika, the accused Sunil @ Nine and his family sought two days time to trace the deceased Monika and dead body was recovered from the canal at the instance of the accused persons, therefore, the chain of circumstances evidences is complete so accused persons had committed the murder of the deceased and they are liable to be convicted.
15. On the other hand, defence counsel has contended that prosecution case is full of material contradictions and vital discrepancies otherwise witnesses have made improvements in their deposition in respect of their previous statement which demolishes the case of the prosecution. In this regard, he has relied upon Suraj Mal vs State of Delhi AIR 1979 SC 1408, and it is further submitted that the oral confession made by the accused persons at the instance of which it is alleged that dead body of the deceased was recovered is inadmissible evidence as the same is not falling within the purview of section 27 of the Evidence Act. In this regard, he has relied upon Vinod Kumar Vaidh vs State 1992(2) C.C.Case 211 (HC).
16. It is further contended that prosecution has failed to prove that on which date, dead body of the deceased Monika recovered as some witnesses had stated that dead body of Monika SC No.57/11 Page 13 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC was seen by them in the morning of 01.05.2009, so there is no question of recovery of dead body in the intervening night of 01/02.05.2009. So is the case with documents prepared after recovering of dead body which appears to be ante timed by the police as their documents were prepared before registration of FIR but bears the FIR number. In this regard, he has relied upon Zohra vs State 83 (2000) DLT 177 and Giri Raj vs State 83 (2000) DLT 201. No fingerprints were placed on record by fingerprint expert, so naturally adverse inference is to be drawn against the prosecution. It is further contended that no evidence found on record that accused brought the deceased in Maruti van as owner of the Maruti has not deposed anything against the accused Sunil @ Nine. Last seen is also improbable as time gap between the death of the deceased and allegedly seen in the company of accused persons is very long and as such cannot relied to convict the accused. Otherwise also the chain of circumstantial evidence is not complete. In this regard, he has relied upon Jaharladas vs State of Orrisa, AIR 1991 SC 1388, Ramreddy Rajesh Khanna vs State of AP 2006 (1) JCC 541, State vs Ramesh Chand 133 (2006) DLT 586, Babuddin vs State 2009 (112) DRJ 496, Prem Pal vs State 2010 LE (Des) 99, Rukmuddin vs State of NCT Delhi 2013(1) JCC 50. It is further contended that there is no evidence on record that deceased was ever harassed by accused Sunil @ Nine. Therefore, motive is also absent in the present case. So the accused persons are entitled for acquittal.
SC No.57/11 Page 14 of 79 SC No.57/11 FIR No.50/09PS J.P. Kalan U/s 302/120B/201/34 IPC
17. I have heard counsel for the accused persons and Ld. Addl. PP for the State and gone through the record.
18. Before proceeding further, I would like to appreciate the evidence led by prosecution.
19. PW 1 is Ranbir Singh who is brother Sh Ram Niwas, father of the deceased, Monika. He deposed that his niece Monika was married with the accused Sunil @ Nine and after marriage accused started torturing her for demand of car in dowry. He further stated that on 27.04.2009 mother of the accused Sunil @ Nine telephoned them for bringing the deceased to the house of the accused. He further deposed that on 28.04.2009 when he came back from his field at about 4.00 P.M he had seen the accused Sunil @ Nine and Harish alongwith the deceased who were in the Maruti van and he tried to stop them but accused persons did not stop and he came to his house. He was busy in harvesting his crop and, thereafter, he telephoned accused Sunil but accused refused having brought the deceased with him and on the next very day a Panchayat was taken to the house of the accused Sunil @ Nine but mother of the accused Nine told the Panchayat that inlaws of Monika had not brought her to their house and the Panchayat returned to the village. PW 1 has further deposed that brother of the accused Sunil telephoned them SC No.57/11 Page 15 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC that they have produced the accused persons in the police and dead body of the deceased Monika got recovered from the Nala on the same day.
20. This witness during cross examination has been confronted with his statement Ex PW 1/DA where he is not stated the fact that deceased was strangulated and mother of the accused Sunil @ Nine had asked him to send the deceased with accused Sunil @ Nine to their house as well as the deceased was harassed by herin laws.
21. PW2 is Dalbir Singh, who has stated that on 12.06.2007 or 12.07.2009 accused Sunil @ Nine was taking the deceased, Monika in his Maruti Van to his Village. He has further deposed that Monika is the daughter of Sh Ram Niwas, resident of the Village Nidana and her marriage was performed with accused Sunil @ Nine about one and a half year back. He has further deposed that Panchayat was taken to Village Dhansa and two days time was sought by them in Dhansa to find out the Monika. He has further stated that in the evening of the same day three accused persons produced by the relatives before the police. These witnesses was declared hostile and this witness was cross examined by counsel for the State. In cross, by State counsel, he further deposed that his statement was recorded by the police on 12.07.2009 in respect of this case. He has further stated SC No.57/11 Page 16 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC that on 28.04.2009 at about 4.00 PM when he was going towards his house he had seen that accused Sunil @ Nine was coming in a Maruti Van and deceased Monika was sitting in the said Van and one boy was also sitting with Sunil. He has further stated that he thought that accused Sunil @ Nine has taken Monika to her inlaws house, but on 30.04.2009, PW 2 came to know that accused Sunil @ Nine has denied having taken Monika to his house in Village Dhansa and her whereabouts were not known. He further stated that he had gone to the house of Ram Niwas and he told that he has seen the deceased while going with accused Sunil on 28.04.2009, and on 01.05.2009, Panchayat was taken to village Dhansa and he alongwith Ranvir has stated before the Panchayat that they had seen Monika while going with accused Sunil on 28.04.2009. He has further stated that on 02.05.2009 he came to know that the dead body of the deceased Monika was lying in Nehar (canal).
22. PW 3 is Smt. Darshana who is mother of the deceased who has stated that marriage of her daughter was solemnized with accused Sunil @ Nine and dowry was given as per there capacity and after marriage accused Sunil @ Nine was demanding Alto car. She has further stated that deceased Monika come to her house about one month prior to the incident and mother of accused asked her on telelphone to send the deceased, Monika with car, otherwise, she will not allow her to enter in the matrimonial home. PW 3 further SC No.57/11 Page 17 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC deposed that on 28.04.2009, the deceased, Monika alongwith her brother Vicky was present in her house as other family members had gone in fields and accused Sunil @ Nine has brought the deceased alongwith Rs 50,000/ in cash from her house and her son Vicky had asked accused as to why he was taking the deceased alongwith him in the absence of her parents and accused told that he was in hurry. He has further deposed that on 30.04.2009 parents of the deceased telephoned to accused Sunil @ Nine but he did not talk to them properly and, thereafter, a Panchayat was taken in village Dhansa and on 01.05.2009 she came to know that Monika had died.
23. PW 4 Sh Ajay Kumar Kaushik, is the owner of the Maruti Van bearing no. DL 8CQ 4715 which was seized by the police vide seizure memo Ex PW4/A and a diary was also seized vide Ex PW4/B and said Maruti care was released on superdari vide superdginama Ex PW4/C.
24. PW 5 Sh M.N.Vijayan, Nodal Officer, Tata Teleservices who has brought the application forms of Mobile numbers 9212932994 issued in the name of Mr. Vinod, Mobile Number 9213983280 issued in the name of Dharmesh Parkash and mobile no. 9250119715 issued in the name of Mrs Santosh and the same are Ex PW5/A, Ex PW5/B, Ex PW5/C respectively. He also brought the computerized statement of call details of the said mobile numbers SC No.57/11 Page 18 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC and same are Ex PW5/D, Ex PW5/E and Ex PW5/F respectively.
25. PW 6 is Manohar Lal who has stated that he did not know anything about this case and during cross examination by Ld. counsel for state he did not come in the line of the prosecution story.
26. PW 7 is Manjeet Singh who has deposed that on 03.05.2009 he received an information that a dead body has been recovered and he went to PS Jaffarpur Kalan and prepared death report which is Ex PW7/A and recorded the statement of the father of the deceased, Ram Niwas which is Ex PW 7/B and prepared the brief facts which is Ex PW7/C.
27. PW 8 is HC.Omvir Singh who has lodged the FIR no. 50/09 at about 2.45 a.m on 02.05.2009 on the basis of rukka sent to IO through Hct. Bishan and proved the same vide Ex PW8/A and endorsement on the record proved vide Ex PW8/B.
28. PW 9, Rajesh, who is the real brother of accused Sunil @ Nine has stated that accused Sunil @ Nine was married in year 2008. He further stated that on 01.05.2009, a Panchayat was taken from village Nidana, District Rohtak, Haryana to village Dhansa and levelled allegations against him that deceased Monika was killed by them and accused Sunil @ Nine was also present at that time. This witness was declared hostile and he was cross examined by the state SC No.57/11 Page 19 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC counsel and he submitted that he is having mobile no.9250955383. He further stated that deceased Monika did not come to her inlaws house after he went to his parental house with her brother. He further deposed that on 01.05.2009, accused Sunil informed him on mobile phone that a Panchayat had come to his village and they were making enquiries about deceased Monika as she was untraceable.
29. PW 10 is Jaiveer who is real uncle of deceased Monika and he has stated that deceased Monika was married with accused Sunil @ Nine in year 2008 and as and when she came to her parental house she stated that her inlaws were demanding a car also. He further deposed that on 01.05.2009 Ram Niwas and other persons came with a Panchayat to the village of accused Sunil @ Nine and inquired from them about Monika and in laws of the deceased had sought two days time to trace the deceased Monika as they had told the Panchayat that accused Sunil @ Nine did not bring the deceased to her matrimonial home.
30. PW 11 is Sh Ram Niwas, father of the deceased who has stated that accused Sunil @ Nine was married to his daughter 10 months prior to the incident and dowry was given as per his capacity. He has further deposed that when the deceased came to the house she had told him that accused Sunil @ Nine was demanding money from her for purchasing a car and he had showed his inability to give SC No.57/11 Page 20 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC the said money. He has further stated that one and a half month prior to the incident Monika was taken from her matrimonial home to his house by his son. He further deposed that on 27.04.2009 mother of the accused Sunil @ Nine had made a call to his wife and stated that the deceased Monika be sent back to his matrimonial house and on28.04.2009, mother of the accused Sunil @ Nine had made a call to his house and stated that the deceased Monika would be taken by him to her matrimonial home and they went in fields leaving Monika, since deceased as she was to take care of his son who was suffering from fever and on the same day they returned at about 11.00 P.M and his son Vicky informed that accused Sunil @ Nine had taken the deceased with him. He further deposed that on 01.05.2009 he alongwith some responsible persons of his village and family members had gone to village Dhansa and Panchayat from the side of Dhansa had assured them that they will tell about the whereabouts of deceased Monika within two days and PW 11 alongwith his brother Jaiveer went to the house of the accused Sunil @ Nine, where mother of the accused Sunil @ Nine insulted them as to why they have called a Panchayat. He further deposed that on 02.05.2009 at about 1.00 a.m he received a call from PS about recovery of dead body of his daughter and arrest of three accused persons including Sunil @ Nine and he further deposed that his statement was recorded by the Magistrate and the same is Ex PW7/B and he identified the dead body of his daughter which is Ex PW11/A. SC No.57/11 Page 21 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC
31. PW12 Vikky is brother of the deceased who has deposed on the line of the prosecution story and stated that accused harassed her sister for demanding Alto car in the dowry as deceased has conveyed to him that if they did not fulfill his demand accused Sunil @ Nine will desert her. He has further stated that on 05.03.2009 he had brought back Monika to his house as per instructions of his mother and from Dhansa village so that she would also help in the domestic/agricultural work and Monika deceased be sent back alongwith Alto car.
32. PW 13 is SI Rajnish Yadav who was deposed that on 01.05.2009, he alongwith SHO, B.S.Ahlawat and other staff reached at village Dhansa at the house of Rajesh, brother of the Sunil @ Nine and Inspector/I.O O.P.Meena also reached there and accused Sunil @ Nine was interrogated and confessed that he has murdered his wife alongwith coaccused Harish and Madan. Thereafter they went to the house of Harish and Madan, from where both of them were apprehended. He deposed that all three teams of investigation reached near the place, where dead body of Monika was thrown and they went at the spot and from the corner, took out a gunny bag and same was opened and found a dead body of one lady and accused Sunil @Nine disclosed that the same is the dead body of deceased Monika and Sunil further disclosed that on 28.04.2009, he alongwith SC No.57/11 Page 22 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC accused Harish and Madan, committed the murder of deceased and thereafter, her dead body was thrown in the Chhawla Canal. The gunny bag also contained nine halves of the bricks, besides the body of the deceased and gunny bag was put in a pulanda and sealed with the seal of JC and was taken into possession, vide memo Ex PW13/A. Thereafter all accused persons went to plot of Manohar where they had murdered the deceased Monika. On pointing out IO prepared the pointing out memo of place of occurrence which is Ex PW13/B. IO also prepared the site plan of the spot which is Ex PW13/C. The gunny bag is identified as Ex P1, rope is Ex P2 and bricks are Ex P3.
33. PW 14 is HC Bishan Singh who deposed that on that day he alongwith IO inspector O.P.Meena reached at house of Hari Ram in village Dhansa where S.I B.S Ahlawat and SHO met them where they met Rajesh and who told them that his brother Sunil had committed murder of his sisterinlaw. Thereafter three teams were constituted. One team was led the inspector O.P.Meena consisting of ASI Jagat and another team was led by SI Rajnish and SI Jagdish Chander and third team was lead by SHO. Thereafter accused persons took the police team at Chawla canal where they had thrwn the dead body and pointed out one gunny bag and told that in the same gunny bag had threw dead body of Monika and that gunny bag was taken out and same was opened and found containing the dead body of deceased Monika. IO prepared the rukka and handed over the same for registration of the FIR. Thereafter, the gunny bag and SC No.57/11 Page 23 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC articles were seized and IO also prepared the rough site plan.
34. PW15 ASI Ajeet Singh is photographer of Mobile Crime Team, who on the intervening night of 01/02.05.2009 alongwith IC Crime Team and other members of crime team went to Chhawla Ganda Nala and took 30 photographs from different angle and out of which, two photographs were washed out and handed over developed photographs Ex. PW16/A1 to PW16/A28 and its negatives Ex. PW16/B1 to PW16/B30.
35. PW16 is Const. Hardeep Singh, who on 12.06.2009 at the request of the IO went to plot of Manohar Lal, Village Dhansa, PS Jaffarpur and took measurements and rough notes and thereafter he went to Najafgarh drain, Chhawla to Dhul Siras Road where he took measurement and rough notes on the pointing of IO and prepared detailed scaled site plan Ex. PW16/A.
36. PW17 is HC Bala Ram, who on 02.05.2009 was posted at PS Jaffarpur Kalan and on that day vide DD No. 5A, he delivered the copies of FIR No. 50/09 to Ld. Area Magistrate and senior police officers on motorcycle No. DL 1SN 4951 and thereafter he came to police station and IO recorded his statement.
37. PW18 is HC Kishore Kumar, who on 28.05.2009 was SC No.57/11 Page 24 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC posted at PS Jaffarpur Kalan and on the instructions of the IO, he received the exhibits I.e six pullandas and two sample seals alongwith FSL form from MHC(M) vide RC No. 8/21/9 in a sealed condition for depositing the same at FSL Rohini and he took the same and deposited the same at FSL office and obtained receipt and handed over the same to MHC(M).
38. PW19 is Dr. Pravinder Singh, Junior Specialist, Forensic Medicine, RTRM Hospital, Jaffarpur who on 04.05.2009 conducted the postmortem on the dead body of deceased Monika vide his report Ex. PW19/A and opined the cause of death due to antemortem ligature strangulation and on 02.06.2009, he gave subsequent opinion which is Ex. PW19/B.
39. PW20 is Lady Const. Monika, who have brought the computer generated PCR form Ex. PW20/A.
40. PW21 is Inspector B.S.Malik, who on 01.05.2009 was posted at PS Jaffarpur as SHO and DO informed him that a call was received from PCR that one person was apprehended, who had committed the murder of his wife at Village Dhansa and, thereafter, PW21 alongwith SI Rajnish and SI B.S.Alhawat went to the spot i.e house of Hari Ram where his son Rajesh produced accused Sunil @ Nine and told that he had committed the murder of his wife.
SC No.57/11 Page 25 of 79 SC No.57/11 FIR No.50/09PS J.P. Kalan U/s 302/120B/201/34 IPC Thereafter accused Sunil @ Nine was enquired and he told that on 28.04.2009, he alongwith his coaccused had brought his wife from her parental home and on the same night, they had murdered the deceased and on the next day, during the night hours, he alongwith his coaccused Hairsh and Madan had thrown the dead body of the deceased in Chhawla canal and on the pointing out of accused Sunil @ Nine, coaccused Harish and Madan were apprehended from their respective houses and three teams were constituted. One team was lead by PW21 and other teams were led by SI Rajnish and Inspector O.P.Meena. In his team, accused Madan led themselves to Chhawla canal and accused Sunil @ Nine and Harish led themselves towards Ganda Nala (dhalan) and pointed out towards gunny bag which contained the dead body of the deceased. Thereafter, crime team was informed and crime team inspected the spot and took the photographs. Thereafter gunny bag taken out from ganda nala and on opening, it containing dead body of female alongwith some pieces of bricks, which was identified by accused Sunil @ Nine of his wife Monika. Photographer again took the photographs and Inspector O.P.Meena prepared the inquest documents and gunny bag, pieces of bricks and rope by which gunny bag was tied was kept in a pullanda and sealed and same were taken into possession. Thereafter, accused Sunil pointed out a place where they had murdered the deceased inside the Maruti van and pointed out the house where they had hidden the dead body of deceased after SC No.57/11 Page 26 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC committing murder. Thereafter, IO prepared the pointing out memo and Maruti van was seized from the front of house of Ajay Kaushik. Thereafter, this witness alongwith SI Rajneesh came back to PS and directed Inspector O.P.Meena to continue further investigation. This witness also identified the case property.
41. PW22 is ASI Attar Singh, who on the intervening night of 01/02.05.2009 was posted as incharge crime team (SW). On that day, on the request of IO, he alongwith photographer HC Ajit Singh and fingerprint expert Rahul Mehra reached at the spot I.e Ganda Nala Chhawla drain and on the pointing of accused persons namely Sunil @ Nine, Harish and Madan, one gunny bag was taken out which was found containing dead body of a female and the neck of the dead body was tied with rope and some brick pieces were also found inside the gunny bag. Thereafter photographs were taken out and PW22 prepared his report Ex. PW22/A. Thereafter accused persons led to the village where they had kept the dead body in a fodder shed and photographs were taken out and from the Maruti van which was used during the incident by the accused persons, fingerprint expert lifted two chance prints.
42. PW23 is Inspector O.P.Meena, who on 01.05.2009 was posted as Inspector Investigation at PS Jaffarpur Kalan at about 10:15 pm, duty officer informed him that he had received a PCR call that SC No.57/11 Page 27 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC one person had been apprehended in the house of Hari Ram, who had admitted his involvement in the murder of his wife. Thereafter PW23 directed duty officer to make his departure entry and he alongwith HC Bishan went to the spot and on the spot, one Rajesh produced accused Sunil @ Nine to the SHO stating that he had murdered his wife. Thereafter, he alongwith SHO formally interrogated the accused Sunil @ Nine, who disclosed that he with the help of his friends Harish and Madan had committed murder of his wife. Thereafter, this witness took the custody of accused Sunil @ Nine and he led police party to the house of coaccused Harish and Harish who was apprehended at the instance of accused Sunil @ Nine by SI Rajneesh. Thereafter, both the accused persons took police party to the House of accused Madan @ Tinku and he was apprehended at the instance of both the accused persons. Thereafter, all the three accused persons were interrogated and three teams of police officials were constituted. One team was led by PW23 and accused Sunil @ Nine was accompanying this team, and the custody of accused Madan was with SHO/Inspector Baltej Malik and the custody of accused Harish was with SI Rajneesh. Thereafter accused persons namely Sunil @ Nine, Harish and Madan led the police parties where they had thrown the dead body of the deceased. Thereafter, police party went down and found a gunny bag containing dead body of the deceased Monika and, thereafter, PW23 prepared pointing out memo/seizure memo of dead body at the SC No.57/11 Page 28 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC instance of the accused persons which are Ex. PW23/A, PW23/B and PW23/C and a wireless message was flashed to send the crime team and PW23 made his endorsement Ex. PW23/D on DD No. 26A i. e Ex. PW23/E. Thereafter PW23 sent HC Bishan to police station Jafarpur Kala alongwith rukka for getting the case registered. In the meantime, crime team reached at Chhawla canal and inspected the scene of crime and took the photographs. Thereafter, gunny bag was opened which was found containing dead body of the deceased alongwith some pieces of bricks. The neck of deceased was tied with rope and left hand was tied with dupatta. Thereafter, crime team photographer took the photographs of the deceased and pieces of bricks were seized vide seizure memo Ex. PW13/A and rough site plan of the place of recovery of the dead body was prepared vide Ex. PW23/F and all three accused persons were arrested vide arrest memo Ex. PW23/G, PW23/H and PW23/I and personal search of all the accused persons wad taken vide memo Ex. PW23/J, PW23/K and PW23/L. Thereafter accused persons made their disclosure statements vide memo Ex. PW23/M, PW23/N and PW23/O. Thereafter, the dead body of the deceased was kept in Tata 407 and accused persons led the police party to Dhansa Village where they had murdered his wife in the said van. Thereafter PW23 prepared the pointing out memo of the place vide Ex. PW13/B and rough site plan was prepared vide Ex. PW13/C. Thereafter accused persons told the police party that after committing murder, they had hidden the SC No.57/11 Page 29 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC dead body outside the house of one Prakash Prajapati under the tin shade and all the accused persons pointed out that place vide pointing out memo Ex. PW13/D, PW13/E and PW13/F. Thereafter, at the instance of accused persons, police party went to the house of Ajay Kaushik and at the instance of accused Sunil @ Nine, PW23 seized one Maruti van bearing No. DL 8CQ 4712 vide seizure memo already Ex. PW4/A and crime team photographer took the photographs of the van. Thereafter PW23 sent the dead body of the deceased to RTRM hospital and informed the parents of the deceased and Executive Magistrate and in the police station, crime team inspected the van and took two chance prints from inside the van and thereafter crime team gave his report. Thereafter PW23 recorded the statement of ASI Attar Singh (Incharge Crime Team), HC Ajit (photographer) and ASI Rahul (Finger Print Expert). Thereafter on 04.05.2009, postmortem of the deceased got conducted vide inquest papers Ex. PW7/A, PW7/B, PW7/C and PW23/P1 to PW23/P8 and on the direction of the SDM, PW23 recorded the statement of identification of dead body vide Ex. PW10/A and PW11/A and after postmortem, dead body was handed over to the relatives of the deceased vide handing over memo Ex. PW23/Q. Thereafter on 19.05.2009, PW23 collected the abovesaid inquest papers and the exhibits from the autopsy surgeon and prepared seizure memo Ex. PW23/R. Thereafter on 28.05.2009, PW23 sent the exhibits of this case to FSL Rohini through HC Kishore vide RC No. 8/21 and on SC No.57/11 Page 30 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC 01.06.2009, PW23 recorded the statement of owner of said vacant plot. Thereafter on 02.06.2009, PW23 obtained the subsequent opinion from the autopsy surgeon and during the course of investigation, PW23 received crime team report ex. PW22/A and collected the photographs Ex. PW16/A1 to PW16/A28 and during the course of investigation on 14.06.2009, PW23 got the scaled site plan Ex. PW16/A prepared through draftsman Hardeep and recorded his statement. Thereafter PCR form was collected vide Ex. PW20/A and examined lady constable Monika on 14.06.2009. After completion of investigation, PW23 prepared chargesheet and filed the same in the court and during trial, he collected FSL report Ex. PW23/S, PW23/T and Ex. PW23/U.
43. As per prosecution story, accused Sunil @ Nine had intimated his inlaws that he will come to village Nidana in order to bring deceased Monika back to her matrimonial home on 28.04.2009 and accused Sunil alongwith accused Harish had been last scene together in the company of the deceased by inlaws of the accused Sunil @ Nine namely Vicky, his brotherinlaw, PW1 Ranbir Singh and PW2 Dalbir Singh, PW10 Jaivir and when inlaws of the accused Sunil @ Nine asked about the welfare of the deceased from the accused Sunil, he flatly refused to have brought the deceased from her parental home to her matrimonial home. On this, Panchayat was brought to village Dhansa where accused family sought two days time to trace the deceased, Monika but on 01.05.2009, PW9 Rajesh, SC No.57/11 Page 31 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC brother of the accused Sunil @ Nine made a call from his mobile No. 9250955383 to the police that his brother Sunil @ Nine has murdered his wife Monika. The said information was duly recorded vide DD No. 26A (Ex.PW23/E) and accused were apprehended and during interrogation, they disclosed to the police that accused Sunil @ Nine in connivance with his coaccused Harish and Madan committed the murder of the deceased by strangulating with a rope and thrown the dead body of the deceased Monika in the canal and on the oral disclosure statement and pointing out, the dead body of Monika was found and taken out of the gunny bag, therefore, this said disclosure statement and pointing out were reduced into writing.
44. The contention of the ld. Defence counsel is that deceased was never brought to her matrimonial home by accused Sunil @ Nine as the last seen together theory is not proved on record and the reading of the testimony of the Pws, who are relatives of the deceased and interested witnesses theory of last seen stands dissipated. But I found no substance in this contention as PW12 has stated in his examination that his sister, deceased Monika was married with accused Sunil @ Nine on 01.07.2008 and after her marriage, the deceased came to her parental home for 23 times and she used to state that accused Sunil @ Nine used to harass her for demand of Alto car in dowry and he also used to beat her. PW12 has further deposed that deceased has disclosed to his family that if the SC No.57/11 Page 32 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC demand of Sunil of Alto Car is not fulfilled, accused Sunil @ Nine will desert the deceased. It is further stated that her parents had shown their inability to fulfill the demand of Alto car, but anyhow, her parents had agreed to fulfill the demand of Alto car and on 05.03.2008, he brought the deceased to his parental home on the direction of his mother Darshna Devi so that she may help in agricultural activities and amount for purchasing the Alto car could be arranged. He further stated that on 27.04.2008, a telephone call was made by mother of the accused Sunil @ Nine and she asked the mother of PW12 that deceased should be sent alongwith Alto car. PW12 has further deposed that on 28.04.2009, telephone calls were received on his landline number from accused Sunil @ Nine which were attended by the deceased Monika but she had not disclosed anything about these calls to PW12. PW12 has further deposed that he had seen the deceased being taken by accused Sunil @ Nine. Although, PW12 has improved his version so far as seeing the deceased being taken by accused Sunil @ Nine to his previous statement recorded under section 161 Cr.PC. Although, in cross, he had submitted that the deceased was listening to his voice and shout but she did not return to him. But despite these improvements in the statement Ex. PW12/DA, I am of the opinion that testimony of this witness cannot be doubted that the deceased was present in her parental home on 28.04.2009 and as per the scheduled programme, she was to be brought back to her matrimonial home by accused SC No.57/11 Page 33 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC Sunil @ Nine on 28.04.2009. Otherwise said improvement did not tantamount to material contradiction but a minor discrepancy as the deceased was not taken by a stranger but by the husband of the deceased.
45. The contention of the counsels for the defence is that deceased had left her parental home in the company of the accused Sunil @ Nine without even informing her parents including even PW12, who was present in the house without collecting even her belongings, who as per prosecution story was harassing her and what was the need for the deceased to leave her parental home in such a manner, otherwise, the accused Sunil @ Nine being soninlaw of the family. So the accused Sunil @ Nine if had brought the deceased to her matrimonial home, he was supposed to visit the house of his in laws and deceased was to leave her parental home by taking due formal permission from her parents which is lacking in this case. Therefore, the deceased was not brought to her matrimonial home by accused Sunil @ Nine but she was present at her parental home when she went missing but this contention is also fallacious and liable to be rejected as the accused Sunil @ Nine was not having good relations on account of non fulfilling of his persistent demand of Alto car which was not fulfilled by his inlaws.
46. It may be noted that PW1 Ranbir Singh is also another SC No.57/11 Page 34 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC witness who has seen the accused Sunil @ Nine and accused Harish in the company of the deceased on 28.04.2009 as he has stated that on 28.04.2009, he was coming back from his fields at about 4:00 pm and had seen the deceased and accused Sunil @ Nine and Harish in a Maruti Van and he tried to stop all of them but they did not stop the van and he has further deposed that on 30.04.2009, he was busy in harvesting the crop, he telephoned the accused Sunil @ Nine about the whereabouts of the deceased but accused refused to have brought the deceased to her matrimonial home and on next day, Panchayat was taken to village of accused Sunil @ Nine but mother of the Sunil @ Nine denied having brought the deceased Monika to her house and they returned to their village and thereafter, brother of the accused Sunil @ Nine made a call that accused Sunil @ Nine had been produced before the police.
47. The contention of the counsels for the defence that this witness is not reliable as being interested witness as his testimony is doubtful and he has deposed that he has seen the accused Sunil @ Nine and Harish in the company of the deceaed on 28.04.2009 but he has given no explanation as to why he has not got recorded the statement before SDM on 03.05.2009 when statement of his brother Ram Niwas was recorded and, furthermore, his calling the accused Sunil @ Nine on telephone on 30.04.2009 is also contrary to record and similarly his deposition that he has seen the dead body of the SC No.57/11 Page 35 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC deceased Monika in PS Jafarpur on 01.05.2009 belies the prosecution story that the dead body was recovered on the intervening night of 01/02.05.2009. In addition to it, in the same way, he has not lodged any report that accused has taken away the deceased which in normal circumstances he was supposed to lodge. All these contentions appears to be attractive but being falacious are hereby rejected in as much as non recording of the statement by SDM of PW1 as well as not reporting the taking away of the deceased by accused Sunil @ Nine to the police is not going to cause any doubt regarding the creditworthiness of this witness as the deceased was not a stranger with whom the deceased was seen by PW1. The accused Sunil @ Nine being soninlaw of PW1 was seen in the custody of the deceased who was none other than the wife of accused Sunil @ Nine. So no question of reporting the matter to police by PW1 arises. Similarly, non recording of the statement of PW1 by SDM is not going to affect the testimony of PW1 in as much as his statement was recorded by the police on 03.05.09 where he categorically stated that he had seen the deceased in the company of the accused Sunil @ Nine and Harish and he tried to stop the Maruti Van but the accused has not stopped the van and PW1 had took an impression that the deceased was staying in her parental home and accused Sunil @ Nine is taking the deceased Monika to her matrimonial home and on 30.04.2009, PW11 Ram Niwas, brother of PW1 has stated that deceased had gone to her matrimonial home SC No.57/11 Page 36 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC without informing her parents. Therefore, on getting the information of missing of the deceased, he told to Ram Niwas that he had seen the deceased being taken by accused Sunil @ Nine and Harish on 28.04.2009 and on the same day, Panchayat was being brought to village Dhansa from village Nidana. Therefore, non recording of the statement of the witness before SDM is immaterial as his statement under section 161 Cr.PC was recorded on the same day i.e 03.05.2009 where he had deposed that he had seen the deceased being taken by the accused persons.
48. So far as seeing of the dead body of the deceased by PW1 on 01.05.2009 as agitated by defence counsels is also contrary to the evidence on record as PW1 has categorically submitted that Panchayat was brought in village Nidana on 01.05.2009 but, thereafter, they returned to their village and a telephone came from brother of the accused Sunil @ Nine that they have produced the accused persons before the police and the dead body of the deceased was recovered from the nala on that very day. Although, he has stated in the cross that police met them only in the police station where they were called in the police station alongwith Panchayat on 01.05.2009 in the morning hour and the dead body of the deceased was shown to them in the noon time. But conjoint reading of the chief and cross examination of this witness leads to the irresistible conclusion that call was received from the brother of the accused SC No.57/11 Page 37 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC Sunil @ Nine namely PW9 Rajesh from his mobile No. 9250955383 on the basis of DD No. 26A (Ex.PW23/E) was lodged. Therefore admittedly, the message regarding death of the deceased was received by PW1 on the information supplied by brother of the deceased which was admittedly supplied on 01.05.2009 at about 8:30 pm, so there is no question of seeing the dead body of the deceased on 01.05.2009 in the afternoon in PS Jafarpur Kalan. This fact is further fortified by the testimony of PW9, Rajesh, brother of the accused Sunil @ Nine who has stated in his testimony that on 01.05.2009, Panchayat including 1520 people had came from village Nidana to village Dhansa where allegations were levelled against them that they had killed the deceased Monika. In cross, he had also admitted that he was having above said mobile numbers. Therefore, it can safely be inferred that the dead body of the deceased was seen by PW1 on 02.05.2009 and not on 01.05.2009 as contended by counsels for the defence.
49. Another witness to the last seen theory is PW2 Dalbir Singh. This witness in his examination has stated that he has seen accused Sunil @ Nine taking away the deceased in the Maruti van to his village and deceased was known to him being daughter of Ram Niwas, his covillager. He has further deposed that whereabouts of Monika was not traceable and Panchayat was taken to Dhansa village where accused Sunil @ Nine stated that he had not brought the SC No.57/11 Page 38 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC deceased to his house and he did not state anything in the Panchayat and two days time was being sought by inlaws of the deceased to trace the deceased and in the evening, the relatives of the accused Sunil @ Nine produced the accused Sunil @ Nine before the police. Thereafter, this witness was declared hostile.
50. During cross examination by Ld. State Counsel, he has stated that on 28.04.2009 at about 4:00 pm when he was going towards his house, he had seen a Maruti van being driven by accused Sunil @ Nine and deceased Monika was sitting in the van and another boy was sitting in front side of the van and accused Sunil @ Nine alongwith deceased Monika was going outside the village and he was under impression that deceased Monika was being taken by accused Sunil @ Nine at her matrimonial home. He has further stated that on 30.04.2009, he came to know that accused Sunil @ Nine had not taken the deceased to his village Dhansa and her whereabouts were not traceable and had gone to the house of Ram Niwas and told that accused Sunil @ Nine had taken away the deceased to her matrimonial home and he alongwith Ranbir Singh had stated before the Panchayat that he had seen Monika while going with accused Sunil @ Nine then why accused Sunil @ Nine was denying this fact. This witness has failed to identify the other accused who was accompanying the accused Sunil @ Nine on 28.04.2009. During cross by defence counsels, he has stated that Ram Niwas was a poor person SC No.57/11 Page 39 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC and he further stated that he do not remember as to where he was on 28.04.2009. He further stated that on 12.07.2009, he was in Delhi. He has further admitted that he has met with accused Sunil @ Nine and he has gone with Panchayat at his house. He has further stated that he do not remember the date and month when the police officials met him and after three days of the death of the deceased, police had came to his village and recorded his statement. He further stated that on 28.04.2009, he was at his house and no family of the deceased had met him on or after 28.04.2009. He further stated that he met accused Sunil @ Nine on the date of marriage and thereafter he met him two times and last time, he met the accused Sunil @ Nine on 28.04.2009.
51. The contention of the defence counsel that conduct of this witness is unnatural and he is planted witness as he has stated in his statement under section 161 Cr.PC that he came to know about the missing of the deceased Monika on 30.04.2009 and he went to the house of the deceased and told her father that he had seen accused Sunil @ Nine in the company of the deceased alongwith one more boy and he was also a part and parcel of the Panchayat held on 01.05.2009 in village Dhansa. But his statement was recorded after three months and he had not stated to the Panchayat that he had seen accused Sunil @ Nine having brought the deceased to her matrimonial home and furthermore, no complaint was made despite SC No.57/11 Page 40 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC this fact was being told by PW2 to the family member of the deceased to the police and the delay of three months in recording the statement of this witness has also not been explained by the prosecution.
52. It may be noted here that conduct of the witness is not unnatural one as he being a covillager of the complainant was knowing the fact that deceased was married with accused Sunil @ Nine and deceased was being taken by accused Sunil @ Nine in the car so there was nothing unnatural in the conduct of the witness as the accused Sunil @ Nine being husband of the deceased was naturally supposed to take her to her matrimonial home so there was nothing to inform to parents of the deceased and police regarding such taking of the deceased by the accused Sunil @ Nine but when the whereabouts of the deceased were not traceable, he informed this fact to the parents of the deceased and so far as the date and time is concerned and this witness turned hostile but during cross, he has supported the case of the prosecution and such part of his testimony as is reliable can be taken into consideration as the law is well settled so far as hostile witness is concerned and in a recent judgment delivered by the Apex Court reported as 1(2012) DLT (Crl.) 934 (SC) =II(2012) SLT 665 Bhajju @ Karan Singh vs. State of M.P., it has been held as under:
SC No.57/11 Page 41 of 79 SC No.57/11 FIR No.50/09State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC "19. Now we shall discuss the effect of hostile witnesses as well as the worth of the defence put forward on behalf of the appellant/accused.
Normally when a witness deposes contrary to teh stand of the prosecution and his own statement recorded under section 161 of the Code of Criminal Procedure, the prosecutor, with the permission of the court can pray to the court for declaring the witness hostile and for granting leave to cross examine the said witness. If such a permission is granted by the court then the witness is subjected to cross examination by the prosecutor as well as an opportunity is provided to the defence to cross examine such witnesses, if he so desires. In other words, there is limited examinationin chief, crossexamination by the prosecutor and cross examination by the Counsel for the accused. It is admissible to use the examinationinchief as well as the cross examination of the said witness in so far as it supports the case of the prosecution. It is settled law that the evidence of hostile witnesses can also be relied upon by the SC No.57/11 Page 42 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witness cannot be treated as washed off the records, it remains admissible in trial and thee is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Act enables the court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in crossexamination by the adverse party. The view that the evidence of the witness who has been called and cross examined by the party with the leave of the court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct position of law. The courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled cannon of criminal jurisprudence that the part which has been allowed to be crossexamined can also be relied upon by the prosecution."
SC No.57/11 Page 43 of 79 SC No.57/11 FIR No.50/09PS J.P. Kalan U/s 302/120B/201/34 IPC
53. So far as delay in recording the statement of this witness is concerned. This is not the case of this witness that police has come to this witness and he had refused to get his statement recorded but testimony of this witness is that as and when police came to him, he got recorded his statement. The delay in recording the statement on the part of the IO is not going to affect the prosecution case as the investigation in the present case appears to be shoddy one and IO has committed a number of mistakes in conducting of investigation of this case. So far as the date of the recording of the statement of this witness who has stated that he was in Delhi on 12.07.2009 i.e the date when his statement is alleged to have been recorded by the IO. But the mentioning of date by this witness might be a typographical error or a slip of tongue which is not going to affect the prosecution case. Similarly the information of the death of the deceased to PW2 cannot be on 30.04.2009 as alleged by the defence counsel because PW2 has stated that he has gone to the house of Joginder who told him about the death of deceased Monika and he summoned accused Sunil @ Nine through the Panchayat but he has again said that Joginder told him about the death of deceased on the day when he took Panchayat to Monika's matrimonial home and the Panchayat taken on 01.05.2009. Therefore, it was what natural that this witness might have been told about the death of deceased by one Joginder on the intervening night of 01/02.05.2009.
SC No.57/11 Page 44 of 79 SC No.57/11 FIR No.50/09PS J.P. Kalan U/s 302/120B/201/34 IPC
54. So far as last seen evidence is concerned, the law is well settled and following principles are to be kept in mind before the evidence is relied upon namely :
i) Lastseen is a specie of circumstantial evidence and the principles of law applicable to circumstantial evidence are fully applicable while deciding the guilt or otherwise of an accused where the lastseen theory has to be applied.
ii) It is not necessary that in each and every case corroboration by further evidence is required.
iii) The single circumstance of last seen, if of a kind, where a rational mind is persuaded to reach an irresistible conclusion that either the accused should explain, how and in what circumstances the deceased suffered death, it would be permissible to sustain a conviction on the solitary circumstance of lastseen.
iv) Proximity of time between the deceased being last seen in the company of the accused and the death of the deceased is important and if the time gap is so small that the possibility of a third person being the offender is reasonably ruled out, on the solitary circumstance of lastseen, a conviction can be sustained.
v) Proximity of place i.e. the place where the deceased and the accused were last seen alive with the place where the dead body of the deceased was found is an important SC No.57/11 Page 45 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC circumstance and even where the proximity of time of the deceased being last seen with the accused and the dead body being found is broken, depending upon the attendant circumstances. It would be permissible to sustain a conviction on said evidence.
vi) Circumstances relating to the time and the place have to be kept in mind and play a very important role his evaluation of the weight age to be given to the circumstance of proximity of time and proximity of place while applying the last seen theory.
vii) The relationship of the accused and the deceased, the place where they were last seen together and he time when they were last seen together are also important circumstances to be kept in mind while applying the last seen theory. For example, the relationship is that of husband and wife and the place of the crime is the matrimonial house and the time the husband and wife were last seen was the early hours of the night would require said three factors to be kept in mind while applying the lastseen theory.
The above circumstances are illustrative and not exhaustive. At the foundation of the lastseen theory, principles of probability and cause and connection, where from a reasonable and a logical mind would unhesitatingly point the finger of guilt at the accused. Whenever attracted, SC No.57/11 Page 46 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC would make applicable the theory of lastseen evidence and standing alone would be sufficient to sustain a conviction.
55. Therefore the circumstances of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. There can be no straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period. Therefore, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused being the author of crime, becomes impossible, then the evidence of circumstances of last seen together can be considered as one of the circumstances to prove the guilt against such accused. In this regard, I found support from State Vs Sanjay Thakaran 2012 (1) JCC 540 Bodh Raj @ Bachha Vs State of J & K 2002 (8) SCC 45.
56. Hence, if the prosecution proves that in the light of the facts & circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of SC No.57/11 Page 47 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC incident or before the commission of the crime in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused person was in exclusive possession of the place where the incident occurred or where he was last seen together with the deceased and there was no possibility of any intrusion a relatively wide time gap would not affect the prosecution case.
57. In the present case, last seen theory has been supported by PW1, PW2 and PW12, brother of the deceased, PW11, father of the deceased Ram Niwas have deposed that deceased had come after one and half months of her marriage and stated that accused Sunil @ Nine was demanding money for purchasing Alto car but he had shown his inability to give the said money. He further stated that day after when the deceased again paid a visit to her parental home, she had further disclosed that accused Sunil @ Nine is demanding the car time and again and about one and half months back to her parental home by son of PW11 Ram Niwas and on 27.04.2009, mother of the accused Sunil @ Nine had demanded a car from his wife stating there that deceased will only be allowed to came, if she happened to bring a car. He has further stated that on the next day I.e 28.04.2009, accused Sunil @ Nine had made a call at his residence and on that day, they had gone to fields and deceased alongwith his son PW12 Vicky was at home as Vicky was having fever and PW11 alongwith SC No.57/11 Page 48 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC other family members had returned to their house at about 11:00 pm and his son Vicky told that deceased had been taken by the accused Sunil @ Nine . He has further stated that on 30.04.2009, he again inquired about the welfare of the daughter since deceased but accused replied that he had not brought her to her matrimonial home and on 01.05.2009, PW11 alongwith some respected persons came to village Dhansa and Panchayat was held in village Dhansa and the Panchayat from the village of Dhansa had sought two days time to trace the deceased Monika and PW11 returned to his village and on 02.05.2008, the dead body of his daughter was received and three accused persons were arrested and he made statement to the SDM on 03.05.2009 vide Ex. PW7/A and he identified the dead body of his daughter vide Ex. PW11/A. In cross, this witness has admitted that statement of his brother Jaiveer was also recorded on the same day when his statement was recorded. In cross, he has further stated that after marriage, deceased came to her parental home on next day but she had not made any complaint against anybody regarding harassment by her inlaws. He has further admitted that it is correct that it is the first time he and his family raising allegations against the accused regarding dowry demand and beating to the deceased after her death. In further cross, he has admitted that accused Sunil called him on 28.04.2009 that he had coming to take Monika and he had permitted to accused Sunil @ Nine to take her back to her matrimonial home. He has further stated that he has not made any SC No.57/11 Page 49 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC complaint to the police despite the accused Sunil @ Nine having denied taking away the Monika from her parental home to her matrimonial home. He has further stated that when he had seen the dead body of the deceased in police station, his brother Ranbir was also accompanying him. He has further denied the suggestion that accused Sunil @ Nine had not made any telephonic call that he is coming to take deceased. He has further denied the suggestion that he had not gone to village Dhansa by taking a Panchayat.
58. PW3 is mother of the deceased who has stated that after marriage, accused Sunil @ Nine started demanding Alto car whenever deceased Monika came to her parental home. She told about the said demand of Alto car in the family. She has further stated that on 27.04.2009, mother of the accused Sunil @ Nine asked her to sent deceased Monika alongwith Alto car otherwise she will be not be allowed to enter into her matrimonial home. And on 28.04.2009, deceased alongwith her brother Vicky was present in the house and accused Sunil had taken away the deceased and deceased had taken away the amount of Rs. 50,000/. She had further stated that on 30.04.2009, they all contacted the accused Sunil @ Nine regarding the welfare of the deceased but he had given no satisfactorily reply and on 01.05.2009, she came to know that deceased died. In cross, she had denied the suggestion that accused Sunil @ Nine had not made any demand for Alto car. She further SC No.57/11 Page 50 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC denied the suggestion that Monika never went with accused Sunil @ Nine on 28.04.2009.
59. From the conjoint reading of the testimony of all witnesses, one thing is clear that as per the scheduled programme, the accused Sunil @ Nine was supposed to bring the deceased back to her matrimonial home but further inference can be drawn from the testimony of the witnesses that relation between the accused Sunil @ Nine one side and his inlaws on the other hand appears to be sour as the accused was hard pressing his inlaws to meet his illegal demand of dowry Alto car that is why it appears that the accused Sunil @ Nine has not even entered into the house of his in laws and he took the deceased from outside of his inlaws house without informing anybody. Minor discrepancies here or there is not going to effect the prosecution case as there is a general corroboration in the testimonies of PWs so far as bringing the deceased back to her matrimonial home by accused Sunil @ Nine on 28.04.2009. Otherwise with passage of time, human memory fades away and witnesses cannot be expected to have a parrot like version.
60. Therefore from the above discussion, it can be inferred that the deceased was being brought back to the matrimonial home by the accused Sunil @ Nine alongwith his coaccused Harish on 28.04.2009 from the house of his inlaws to his house.
61. Now the question arises as to what has happened with SC No.57/11 Page 51 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC the deceased when she was brought to her matrimonial home. As per prosecution story, the deceased was murdered by accused Sunil @ Nine with the help of rope and had hidden her dead body in a husk room in the said village Dhansa and in the dead of night, he alongwith his coaccused had thrown the dead body in the Chawla canal, thereafter, when the whereabouts of the deceased were not known after28.04.2009 when she was brought to her matrimonial home from her parental home. PW11 tried to contact the accused Sunil @ Nine for knowing about the whereabouts of the deceased but the accused had not given any satisfactorily reply that is why Panchayat was convened in village Dhansa which fact has not been denied by PW9, Rajesh. Accused Sunil @ Nine was summoned and he had sought two days time to trace the deceased and the deceased was in her matrimonial home and it was accused Sunil @ Nine who was to explain as to how the deceased met with homicidal death but accused Sunil @ Nine had given no explanation as how the deceased met with homicidal death.
62. As per postmortem report Ex. PW19/C, the postmortem was conducted on 04.05.2009 in between 1:00 - 2:30 pm and PW19 has further opined that the deceased died five and half days back, the testimony of this witness proved on record that the deceased died in the intervening night of 28/29.04.2009 when she was present in her matrimonial home and law with regard to the SC No.57/11 Page 52 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC death of the deceased/wife of the accused is well settled that if the wife died in her matrimonial home when husband is supposed to present, husband has to explain in what circumstances, his wife has met with homicidal death. In this regard, I would like to reproduce the observation made by Hon'ble High Court of Delhi in Bhupender @ kale vs State Crl No. 1397/10 and it has been observed as under:
II In the second category are the decision where the prosecution could not prove the presence of the husband in the house when the wife suffered a homicidal death but the circumstances were such that it could be reasonably inferred that the husband was in the house and the husband failed to render any satisfactory explanation as to how his wife suffered a homicidal death. The circumstances wherefrom it could be inferred that the husband was in the house would be proof that they lived in the house and used to cohabit there and the death took place in such hours of the night when a husband was expected to be in the house. i.e the hours between night time and early morning.
SC No.57/11 Page 53 of 79 SC No.57/11 FIR No.50/09PS J.P. Kalan U/s 302/120B/201/34 IPC
63. It may also be relevant to note here that involvement of accused persons in the present offence surfaced when the call made by Rajesh PW9, brother of accused Sunil @ Nine from his mobile number 9250955383 to the police on the basis of which DD No. 26A was lodged and police swung into action and reached village Dhansa where the accused Sunil @ Nine and Harish and Madan made their oral disclosure statement and admitted their guilt that they had murdered the deceased Monika. Although, PW9 has turned hostile and not supported the case of the prosecution but he had admitted that he was having the said phone and he had made a call to police regarding dispute being raised by the Panchayat from village Nidana. But on the said information, the accused persons were arrested and disclosed to the police that accused Sunil @ Nine had murdered his wife after having brought her from her parental home, therefore, they had hidden the deadly body and on the next day, they had thrown the dead body in the Chawla canal and all the three accused persons were taken by three police parties to the place where dead body was thrown and accused persons jointly identified the place of occurrence where they have thrown the dead body of the deceased after strangulating her.
64. The contention of the counsel for the defence is that joint oral disclosure statements as well as joint oral pointing out memo of all the three accused had been reduced in writing by the IO SC No.57/11 Page 54 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC after dead body have been recovered so the said joint oral disclosure as well as joint oral pointing out memo so prepared after recovery of dead body of deceased Monika have no value in the eyes of law and same is inadmissible and not relevant for any purpose. The said contention appears to be attractive and same is falacious and is hereby rejected in as much as it is settled law that oral disclosure is admissible if the said oral disclosure statement leads to the discovery of fact which is relevant to the matter in question. In this regard, I found support from Shambu Gowala @ Jadav vs. State of West Bengal 2000 Cri. L.J.1602 where in the said case, the accused had orally stated that he got recovered the dead body of his wife and in para 15, it has been observed as under:
The Ld. Advocate for the appellant has referred to the Division Bench decision of this court in Panchu Gopal v. State, nAIR 1968 Cal 38: 91968 Cri LJ 40) in support of his submission that since the alleged statement of Sambhu to the police leading to recovery of the skeleton by digging earth was not recorded in writing, the same is not admissible under section 27 of the Evidence Act. We, however, think that the law on the point is now settled and the Supreme Court in Suresh Ch. Bahri v. State of Bihar, AIR SC No.57/11 Page 55 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC 1994 SC 2420: (1994 Cri LJ 324) has taken into consideration the disclosu7re statement of the accused even when the same was not recorded in writing. Even the said Calcutta decision does not say that the disclosure statement is inadmissible in evidence. The question is rather of reliability of evidence regarding such disclosure statement. In our present case, we find no sufficient reason to discard the prosecution evidence regarding the disclosure statement made by the accused Sambhu to the police which led to the recovery of the skeleton. We, therefore, accept the prosecution evidence that the accused Sambhu made statement to the police that he buried the dead body of Bulbuli under the floor of the hut and this part of the statement if admissible in evidence under section 27 of the Evidence Act in as much as such statement had led to the recovery of the skeleton.
65. To the same effect, the observation of Hon'ble High Court in Delhi in Updesh @ Chintu vs State 2012IIAD(delhi) 626 is also relevant which is reproduced hereunder:
SC No.57/11 Page 56 of 79 SC No.57/11 FIR No.50/09State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC A perusal of the testimony of PW6, PW7 and PW8 shows that recovery of the arms and ammunition was made pursuant to his disclosure in case FIR No. 154/09. Thus, recording of a disclosure statement in the present case could not have taken place. The contention of the learned counsel that recovery was not pursuant to disclosure statement of the appellant is liable to be rejected. The recovery of the articles is pursuant to disclosure statement which is admissible under section 27 of the Indian Evidence Act. The registration of FIR is not a sine qua non for the recovery to be effected. Recovery can be effected even on an oral disclosure statement. Further the conduct of the accused leading the police party to his house and the specific place in the house from where the recovery of arms and ammunitions is consequently made is also admissible under section 8 of the Evidence Act. Reference in this regard is made of Himachal Pradesh Administration vs. Om Prakash MANU/SC/0118/1971: (1972) 1 SCC 249.SC No.57/11 Page 57 of 79 SC No.57/11 FIR No.50/09
State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC
66. Therefore, oral disclosure statement is also admissible if on the basis of said information, same fact relevant is discovered. It is true that disclosure statement of the accused persons who is stated to have given information about the dumping of the dead body of the deceased in Chawla canal was recorded after the dead body was recovered so is the case with the pointing out memo in respect of the dead body which was prepared at the instance of the accused persons. But there is positive statement of PW23 Inspector O.P. Meena, PW13 Rajnish Yadav, HC Bishan Singh and other police witnesses who deposed that during the course of investigation that accused persons made oral disclosure statements regarding throwing the dead body of the deceased after strangulating her with rope and putting her dead body in a gunny bag filled with halves of bricks in Chawla canal and led them to the Chawla canal alongwith other police party and pointed out the place where the accused persons got recovered the gunny bag which was tied and on opening, dead body of deceased Monika found containing halves of the bricks and during cross examination of police witnesses, nothing could be elicited that the dead body was not got recovered at the disclosure statement of the accused persons.
67. There are two essential requirements for the application of section 27 of the Evidence Act namely the persons given SC No.57/11 Page 58 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC information must be an accused of an offence and he must also be in police custody and in the present case, it cannot be disputed that these essential requirements existed on the date when the accused persons got recovered the dead body of Monika on the basis of the joint disclosure statements as well as pointing out memo of the accused persons. The provision of section 27 of the Evidence Act are based on the principles that if fact is actually discovered in consequence of information given, some guarantee is there that the information was true and consequently the said information can be safely allowed to be given in evidence because if such information is further fortified and confirmed by the discovery of the articles of the instrument of crime and which leads to the plea that information about the confession made as to the articles of crime cannot be false because in the present case as discussed above, the confessional statement of the disclosure made by the accused persons is confirmed by the recovery of the dead body and, therefore, there is reason to believe that the disclosure statement was true and evidence lead in this behalf is also worthy of credence. So far as contention of the counsel for the defence that there is no independent witness to the recovery of the dead body alleged to have been made on the disclosure statement of the accused so the recovery is planted one and cannot be relied upon is hereby rejected as provision of 102 Cr.PC is not mutatis mutandis not applicable to the provision of section 27 of the Evidence Act and recovery affected in the presence SC No.57/11 Page 59 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC of police witnesses cannot be doubted as now a days public persons are not coming forward to join any investigation and recovery affected by the police witnesses is to be relied upon. In this regard, I found support from case titled Musheer Khan @ Badshah Khan Vs. State of Madhya Pradesh, 2010(2) SCC 748 where it has been observed as under:
In para 20, page 662 of the report it was held when discovery is made pursuant to any facts deposed by the accused, the discovery memo prepared by the investigating officer is necessarily attested by independent witnesses. But if in a given case, no witness is present or nobody agrees to attest the memo, it is difficult to lay down as a proposition that the discovery must be treated tainted or that the discovery evidence is unreliable. In such a situation, the Court has to consider the report of the investigating officer who made discovery on its own merits.
68. So far as joint disclosure statements and joint pointing out memo are concerned, there is nothing in law which makes such documents illegal perse as Hon'ble Supreme Court has observed in State vs Navjot Sandhu AIR 2005 SC 3820 in para 14 as under:
SC No.57/11 Page 60 of 79 SC No.57/11 FIR No.50/09State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC Before parting with the discussion on the subject of confessions under Section 27, we may briefly refer to the legal position as regards joint disclosures. This point assumes relevance in the context of such disclosures made by the first two accused viz. Afzal and Shaukat. The admissibility of information said to have been furnished by both of them leading to the discovery of the hideouts of the deceased terrorists and the recovery of a laptop computer, a mobile phone and cash of Rs. 10 lacs from the truck in which they were found at Srinagar is in issue. Learned senior counsel Mr. Shanti Bhushan and Mr. Sushil Kumar appearing for the accused contend, as was contended before the High Court, that the disclosure and pointing out attributed to both cannot fall within the Ken of Section 27, whereas it is the contention of Mr. Gopal Subramanium that there is no taboo against the admission of such information as incriminating evidence against both the informants/accused. Some of the High Courts have taken the view that the wording "a person"SC No.57/11 Page 61 of 79 SC No.57/11 FIR No.50/09
State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC excludes the applicability of the Section to more than one person. But, that is too narrow a view to be taken. Joint disclosuresto be more accurate, simultaneous disclosures, per se, are not inadmissible under Section 27. 'A person accused' need not necessarily be a single person, but it could be plurality of accused. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar SC No.57/11 Page 62 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any breakalmost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27. However, there may be practical difficulties in placing reliance on such evidence. It may be difficult for the witness (generally the police officer), to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the stand point of credibility and its nexus with discovery. Admissibility and credibility are two distinct aspects, as pointed out by Mr. Gopal Subramanium. Whether and to what extent SC No.57/11 Page 63 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC such a simultaneous disclosure could be relied upon by the Court is really a matter of evaluation of evidence. With these prefaratory remarks, we have to refer to two decisions of this Court which are relied upon by the learned defence counsel. In Mohd. Abdul Hafeez vs. State of Andhra Pradesh [AIR 1983 SC 367], the prosecution sought to rely on the evidence that the appellant along with the other two accused gave information to the IO that the ring (MO 1) was sold to the jewellerPW3 in whose possession the ring was. PW3 deposed that four accused persons whom he identified in the Court came to his shop and they sold the ring for Rs.325/ and some days later, the Police Inspector accompanied by accused 1, 2 and 3 came to his shop and the said accused asked PW3 to produce the ring which they had sold. Then, he took out the ring from the showcase and it was seized by the Police Inspector. The difficulty in accepting such evidence was projected in the following words by D.A. Desai, J. speaking for the Court:
"Does this evidence make any sense? He says SC No.57/11 Page 64 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC that accused 1 to 4 sold him the ring. He does not say who had the ring and to whom he paid the money. Similarly, he stated that accused 1 to 3 asked him to produce the ring. It is impossible to believe that all spoke simultaneously. This way of recording evidence is most unsatisfactory and we record our disapproval of the same. If evidence otherwise confessional in character is admissible under Section 27 of the Indian Evidence Act, it is obligatory upon the Investigating Officer to state and record who gave the information; when he is dealing with more than one accused, what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide incriminating evidence against the person".
There is nothing in this judgment which suggests that simultaneous disclosures by more than one accused do not at all enter into the arena of Section 27, as a proposition of law.
SC No.57/11 Page 65 of 79 SC No.57/11 FIR No.50/09PS J.P. Kalan U/s 302/120B/201/34 IPC Another case which needs to be noticed is the case of Ramkishan vs. Bombay State [AIR 1955 SC 104]. The admissibility or otherwise of joint disclosures did not directly come up for consideration in that case. However, while distinguishing the case of Gokuldas Dwarkadas decided by Bombay High Court, a passing observation was made that in the said case the High Court "had rightly held that a joint statement by more than one accused was not contemplated by Section 27". We cannot understand this observation as laying down the law that information almost simultaneously furnished by two accused in regard to a fact discovered cannot be received in evidence under Section 27. It may be relevant to mention that in the case of Lachhman Singh vs. The State [1952 SCR 839] this Court expressed certain reservations on the correctness of the view taken by some of the High Courts discountenancing the joint disclosures.
69. The evidence pertaining to the recovery of the dead body of Monika needs to be highlighted a little more when the accused SC No.57/11 Page 66 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC persons were arrested, nobody knew that Monika has been killed. For the first time, after the accused persons made their oral disclosure statements, was it learnt that Monika was no more. Further, nobody knew the manner in which Monika was killed. It was only when the accused persons disclosed that Monika was strangulated with a rope that it first came to light that Monika would be having strangulation mark. The postmortem report Ex. PW19/C of Monika shows that there was strangulation/ligature mark. Thus, the statements of the accused persons showing their knowledge that Monika was strangulated with a rope are also admissible in evidence under section 27 of the Evidence Act. After all, a dead body is akin to an object. Thus, the description of the nature of injuries on the dead body, if subsequently confirmed to be true through independent evidence, would render credit worthy the acceptance of confessional statements made to the police followed by recovery of the dead body.
70. In the case law reported as Pulukuri Kottaya & others vs. Emperor AIR 1947 PC 67, Chakidhar Paharia vs State of Assam 1989 Cr.L.J.(200) 1994, Parimal Banerjee vs State 1986 Cr.L.J. 220 and Ram Lochan Ahir vs State of West Bengal AIR 1963 SC 1074 recovery of dead bodies pursuant to disclosure statements were held to be not only admissible incriminating evidence but of very lethal variety against the maker of the statements.
SC No.57/11 Page 67 of 79 SC No.57/11 FIR No.50/09PS J.P. Kalan U/s 302/120B/201/34 IPC
71. The accused had brought his wife to her matrimonial home and this fact was especially in his knowledge as to where his wife has gone which he failed to explain in his statement under section 313 Cr.PC. Accused Sunil @ Nine neither had stated that his wife had gone to her parental home nor he stated that he had brought her back to her matrimonial home but this fact which was in his special knowledge, he was to explain but accused Sunil @ Nine found to offer any explanation. It is relevant to observe here that PW9 Rajesh, brother of the accused Sunil @ Nine has admitted that the deceased had gone to her parental home in the month of March 2009.
72. It may be relevant to note here down in U/s 106 of Evidence Act, the Hon'ble Supreme Court in Prithipal Singh Vs State of Punjab (2012) SCC10 held as under: That if fact is specifically in the knowledge of any person then burden of proving that fact is upon evidence. It is impossible for the prosecution to prove certain facts particularly when the knowledge of the accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply SC No.57/11 Page 68 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC to cases where the prosecution has succeeded in proving facts from which a reasonable inferrence can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regrading such facts failed to offer any explanation which might drive the court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused.
73. Apart from that there was a golden opportunity for the accused to explain any they including circumstance during his examination U/s 313 CrPC. There also he choose to remain silent and did not offer any plausible explanation regarding his presence and how the deceased died of strangulation. Recording of statement of accused U/s 313 Cr.PC is not a mere formality. It is a statutory requirement which provides an opportunity to the accused to state his case and explain the exculpatory circumstances proved against him.
SC No.57/11 Page 69 of 79 SC No.57/11 FIR No.50/09PS J.P. Kalan U/s 302/120B/201/34 IPC
74. It is for the accused persons to either remain silent or provides answer to the question put to them. However, keeping silent and not furnishing any explanation for incriminating circumstances would sustain the charges against them.
75. It is obligatory on the part of the accused while being examined U/s 313 CrPC to furnish some explanation with respect to the incriminating circumstances associated with him and the court must take note of such explanation, even, in case of circumstantial evidence, in order to decide as to whether or not the chain of circumstances is complete when the attention of the accused is drawn to the circumstances that inculpate him in relation to the commission of crime and he fails to offer an appropriate explanation with respect to the same, the said act may be considered as providing a missing link for completing the chain of circumstance. In this regard & found support from State of Maharashtra Vs Suresh (2000) 1 SCC 471, Musheer Khan VS State of M.P.(2010) 2 SCC 748.
76. In the instant case, where there is no manner of doubt that the deceased died in her matrimonial home and only the accused knew how she died. He cannot get away by choosing to remain silent. It was necessary for him to disclose the circumstances in which the death of the deceased was caused in order to exculpate himself. The silence of the accused herein is only proof of his guilt.
SC No.57/11 Page 70 of 79 SC No.57/11 FIR No.50/09PS J.P. Kalan U/s 302/120B/201/34 IPC
77. The contention of the defence counsel is that rukka was sent prior to the recovery of dead body from the spot as deposed by PW21 and how the contents of the recovery of dead body have been found mentioned in the rukka as well as in the FIR. But this contention is falacious and is hereby rejected as PW23 has deposed that in categoric term that he prepared a rukka and PW14 has also fortified and corroborated the testimony of PW23 that he took the rukka after recovery of dead body at about 1:50 am and came back to the spot at about 4:00 am on 02.05.2009. Similarly the contention of the defence counsel is that date i.e 28.04.2009 is mentioned as date of preparation of rukka after receiving DD No. 26A (ex. PW23/E) by IO, therefore, the dead body was recovered on 28.04.2009 and not on the intervening night of 01/02.05.2009. But this contention is also falacious and is hereby rejected as in rukka dated 28.04.2009 is written as date of time and date of occurrence (tarik waqva). Therefore the time and date is mentioned and date of incident as 28.04.2009 and the time of dispatch of rukka is written as 1:15 am on 02.05.2009. Therefore, it cannot be inferred that on 28.04.2009 written by the IO is the date of preparation of the rukka otherwise, it is the date when the alleged incident in which the deceased Monika was murdered was mentioned.
78. So far as the contention of the counsel for the defence is that all the documents got prepared after recovery of dead body and SC No.57/11 Page 71 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC rukka was sent and before the FIR was received by IO, therefore, all these documents are ante timed as same bears the FIR number which is not possible that such document if prepared before lodging of FIR, the number of FIR is mentioned on each and every document. But this contention is also falacious as the IO occasionally left some space for writing the FIR blank and as and when FIR was received, it was so mentioned on the said document which was prepared after sending of rukka and receipt of FIR at the spot. In cross examination, no question has been put to IO PW23 and HC Bishan Singh as to how these documents bears the number of FIR. The case law relied upon by defence counsel namely Zohra(supra) and Giri Raj (supra) is distinguishable to the facts of the present case as in said judgments contraband was seized whereas in the present case deadly body of the deceased was got recovered which police cannot plant falsely.
79. Similarly the contention of the defence counsel that the prosecution has failed to prove the link in the chain of circumstantial evidence that the accused Sunil @ Nine has taken a Maruti van of Ajay PW4 and the said Maruti van was seized by the police and statement of PW4 was recorded by the police but while deposing in the court, PW4 has not stated that the said car was being driven by the accused Sunil @ Nine on the fateful day otherwise PW4 has stated that said car was seized by the police on 01.05.2009. But the said contention appears to be attractive but same is hereby rejected SC No.57/11 Page 72 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC in as much as PW4 has proved the seizure memo of the Maruti van which bears the date as 02.05.2009, so it can be safely inferred that the Maruti Van was seized by the police on 02.05.2009 and PWs i.e PW1, PW2 and PW12 who are relatives of accused Sunil @ Nine had deposed in unequivocal terms that accused Sunil @ Nine had brought the deceased Monika Maruti Van. Therefore the bringing of the deceased to her matrimonial home in the said Maruti Van is immaterial as her coming to her matrimonial home is witnessed by PWs and the same is proved on record. Therefore, even the fact that the Maruti van belonging to PW4 was rented out to accused Sunil or not pales into insignificance. So is the case with the diary seized by the police from PW4 vide Ex. PW4/B which is alleged to be the notebook showing movement of the Maruti on or before and after the alleged incident. As far as the contention of the defence counsel that the fingerprints were collected from the spot by Rahul Mehra, Fingerprint Expert and PW3 has stated that crime team inspected the Maruti van and took chance prints from the same and he recorded the statement of Rahul Mehra but no such fingerprint is placed on record and, therefore, adverse inference has to be drawn against the prosecution. But the said contention is also falacious and is hereby rejected as the relevancy of any such fingerprint was material or not was to be decided by prosecution, if such fingerprints were developed then those fingerprints might have been placed on record but mere non filing of fingerprints on record is not going to SC No.57/11 Page 73 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC affect the case of the prosecution. Otherwise, the fingerprint impression is corroborative piece of evidence and not a substantive piece of evidence and non production of fingerprints, if any collected from the Maruti Van is not going to affect the case of the prosecution story. Similarly the non connectivity of the mobile phones of the accused persons as alleged by prosecution which has not been tried to be proved by the prosecution from PW5 is not going to affect the case of the prosecution. Otherwise also, in the eventuality of availability of other pieces of evidence, the mobile phones connectivity of the phone of accused persons does not bear any credit to the prosecution story and as such, it is not going to make the prosecution story improbable.
80. Similarly the statement of the doctor that he had seen the dead body on 01.05.2009 is also not going to effect the prosecution case as PW9, brother of the accused Sunil @ Nine has admitted in his deposition that he is having a mobile phone No. 9250955383 and he had made a call to the police regarding a quarrel which has taken place as a Panchayat from the village of Nidana had come in village Dhansa and said call was made about 8:30 pm on 01.05.2009, meaning thereby upto 8:30 pm on 01.05.2009, there is no question of dead body of the deceased being recovered as per the testimony of PW9 so there is no question of seeing the dead body of the deceased who had conducted the post mortem on 01.05.2009.
SC No.57/11 Page 74 of 79 SC No.57/11 FIR No.50/09PS J.P. Kalan U/s 302/120B/201/34 IPC The recovery of dead body of the deceased in the intervening night of 01/02.05.2009 is proved on record by police witnesses also. So this part of testimony of the doctor is not going to cause any doubt about the recovery of the dead body of the deceased on the intervening night of 01/02.05.09.
81. So far as the contention of the counsels for the accused that the prosecution has failed to prove any motive on the part of the accused to do away with the deceased is concerned, the said contention appears to be attractive but the same is fallacious and is hereby rejected as the motive is engrained in the mind of the accused and it is not necessary for the prosecution to prove motive in each and every case. Motive is a thing primarily known to the accused himself and it may not be possible for the prosecution in each and every case, to find out real motive behind the crime. Sometimes motives are clear and proved and sometime motive is surrounded in the mystery and it is very difficult to locate the same when the ocular evidence is very clear and convincing and the role of the accused in the crime stands clearly established, establishment of motive is not a sine qua non for proving the prosecution case. In this regard, I found support from Barikanoo vs. State of Uttar Pradesh 1997 1 crimes 500 (All) and Yunis @ Kariya vs. State of M.P. AIR 2003 SC 539. Apart from this, motive provides link in the chain of circumstantial evidence but in the absence of the motive, if the entire chain of SC No.57/11 Page 75 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC circumstantial evidence is complete the absence of motive is not going to snap the links in the chain of circumstance evidence. In this regard, I found support from Amitava Banerjee@ Amit @ Bappa Banerjee Vs State of West Bengal (2012)1 SC Cri 624.
82. So far as the motive is concerned, the contention of the Ld. Counsel for the defence is that there is no motive with the accused to eliminate the deceased as no complaint whatsoever has been made by the parents of the deceased at any time prior to the incident in question as deposed by father of the deceased but this contention is falacious and liable to be rejected on the ground that all the Pws have consistently stated that the deceased was being hard pressed by the accused for brining Alto car if she want to come back to her matrimonial home. The non reporting by way of a complaint either by the deceased or her family is not material as no family members wants that the family life of their daughter may be ruined, in case, any complaint is made to the authorities and for demand of dowry as matters are being settled amicably or through Panchayat. Therefore the non reporting of the demand of the accused Sunil @ Nine by the inlaws to the police is not going to effect the prosecution case.
83. From the above discussion, I am of the opinion that prosecution has proved the following fact against the accused SC No.57/11 Page 76 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC persons namely :
(1) deceased was taken to her parental home by his brother PW12 in the month of March 2009 admitted by PW9, Rajesh, brother of accused Sunil @ Nine.
(2) the accused was scheduled to bring the deceased back to her matrimonial home on 28.04.2009 which is proved by the testimony of her parents including other PWs; (3) the accused was last seen in the company of of the deceased when she was brought back from her parental home and accused being her husband was naturally supposed to bring her back and the custody of the deceased with accused Sunil @ Nine and his coaccused Harish is proved by the testimony of Pws especially PW1, PW2 in the Maruti van; (4) the deceased had gone missing and parents of the deceased had enquired from the accused Sunil @ Nine as to where the deceased had gone but accused Sunil @ Nine offered no explanation;
(5) parents of the deceased brought the Panchayat from village Nidana to village Dhansa on 01.05.2009 where the Panchayat of Dhansa village had sought two days time to trace the deceased;
(6) PW9, Brother of the accused Sunil has telephoned to the parents regarding the fact that deceased had been murdered by his brother Sunil. Although this witness has turned hostile and SC No.57/11 Page 77 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC submitted that Panchayat had been brought by the inlaws of the Sunil @ Nine and there was a quarrel in the village and he had made a call to the police to this effect;
(7) accused persons made joint oral disclosure statements as to where the dead body had been thrown by them after strangulating the deceased and after putting the dead body in a gunny bag alongwith halves of bricks;
(8) on the joint disclosure statement and pointing out memo, the dead body of the deceased was recovered from a gunny bag filled with halves of bricks. The death of the deceased is proved by doctor as result of strangulation and the deceased died about five and half days prior to the time of conducting the postmortem i.e intervening night of 28/29.04.2009; (9) it was within the special knowledge of accused Sunil @ Nine to disclose about the whereabouts of the deceased as the deceased was his wife;
(10) the accused persons have got recovered the dead body by making oral joint disclosure statement and their conduct is also relevant under section 8 of the Evidence Act; (11) the accused Sunil was having a motive to eliminate the deceased as his inlaws was not fulfilling his demand of Alto car and the accused wanted to eliminate the deceased; (12) the accused Sunil @ Nine denied the fact that his wife had come to her matrimonial home and taken to her parental home SC No.57/11 Page 78 of 79 SC No.57/11 FIR No.50/09 State Vs Sunil @ Nine & Ors.
PS J.P. Kalan U/s 302/120B/201/34 IPC by PW12 in the month of March whereas PW9 has admitted that the deceased was taken to her parental home by her brother in the month of March.
84. From the above discussion, I am of the opinion that prosecution has proved every link in the chain of circumstantial evidence that the deceased having been brought to her matrimonial home was murdered by the accused persons.
85. Therefore the accused persons namely Sunil @ Nine, Harish@ Sameer @ Ponu and Madan @ Tinku are hereby convicted for the offence punishable under section 302/120B/201/34 IPC.
86. Put up for order on sentence on 30.03.2013.
Announced in the open court (Vijay Kumar Dahiya) th on the 28 Day of March 2013 ASJ/ Dwarka Courts New Delhi SC No.57/11 Page 79 of 79