Delhi District Court
Fir No. 690/13 State vs . Rahul Sharma 1 Of 85 on 16 July, 2016
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL SESSIONS JUDGE-03(NE), KARKARDOOMA COURTS, DELHI. SC No. 44871/15 FIR No. 690/13 PS : Karawal Nagar U/s. 302 IPC State Versus Rahul Sharma S/o Sh. Adesh Sharma R/o B-13/1, B48 (Old Number), Gali no. 3, Ambika Vihar, Karawal Nagar, Delhi Permanent Address: 293, Rahul Garden, Bheta, Loni, UP Date of Committal : 11.03.2014 Date of Arguments : 02.05.2016 Date of Pronouncement : 05.07.2016 FIR No. 690/13 State Vs. Rahul Sharma 1 of 85 JUDGMENT :
1. Prosecution case: It is the case of the prosecution that on 22/11/2013, a DD No 36A was received at 6:40 pm that foul smell was coming out of a locked room in premises no B-13, Gali No-3, Ambika Vihar, which was marked to ASI Kavi Raj who visited the spot along with Ct. Krishan Pal. At the spot, landlord Raj Kumar Giri was present and informed that he let out the premises to one Rahul in the month of April, 2013 and on 19/11/2013 in morning, he met Rahul outside and informed that he was going to drop his wife Khushbu to the house of her sister at Aligarh and, on asking about the deceased, he informed that she had already left sometime ahead to him. On 22/11/2013, he come to his roof and felt a strong foul smell emanating from the tenanted room. ASI Kavi Raj informed the crime team and got removed the latch with lock after taking the photographs by the photographer of the crime team. Inside the room, crime team and ASI Kavi Raj observed that blood was spread inside the room on floor and bed. A red and black travel bag had a plastic sack from which blood was leaking out. On checking the bag, a dead body of a lady was found stuffed inside the plastic sack which was identified by the landlord to be of Khushbu i.e. wife of the accused. The clothes lying inside the room were having blood stains and broken bangles were lying on the bed. IO informed the superior officers of the police and got removed the dead body to the GTB Hospital through Ct. Dayanand. FIR was lodged on the basis of DD FIR No. 690/13 State Vs. Rahul Sharma 2 of 85 entry. Blood stains clothes and other articles were seized from the spot of incident. Passbook and PAN card of the accused were found inside the room. Accused was arrested from Karawal Nagar Chowk on 23/11/2013 and during investigation it was revealed that accused got married with the deceased on 10/12/2012 and registered with the registrar of marriages, Ghaziadbad, UP. Thereafter, he again solemnized second marriage with Preeti Sharma on 20/11/13 and knife / chhurri used in the crime, keys and marriage documents with deceased and marriage invitation record were recovered from the house of the accused at his instance. Accused is charge-sheeted u/s 302 IPC.
2. This charge-sheet committed to this court after compliance of Section 207 Cr.P.C.
3. This court has framed charges against accused u/s 302 IPC and accused pleaded not guilty and claimed trial.
4. To prove the allegations, prosecution has examined PW1 ASI Kavi Raj, PW2 Raj Kumar Giri, PW3 SI E.S.Yadav, PW4 HC Kishan Pal, PW5 Dr. Neha Gupta, PW6 Ct. Dayanand, PW7 Ms. Shitlesh Dohare, PW8 HC Ramesh, PW9 Rahul, PW10 Ct. Mohit Kumar, PW11 Ct. Naresh Pal, PW12 Ct. Rajesh Kumar, PW13 Sh. Rakesh Kumar III, Ld. CMM, PW14 Insp. Arvind Pratap Singh and PW15 Sh. Jitendra Singh the then Ld. MM and closed PE.
FIR No. 690/13 State Vs. Rahul Sharma 3 of 85
5. After PE, entire incriminating evidence explained to the accused persons under section 313 Cr.P.C. and his statement was recorded. Accused preferred to lead defense evidence.
6. Accused has examined DW1 Sh. Adesh Sharma, DW2 Sh. Rajiv Pandit and DW3 Smt. Komal Sharma and closed DE.
7. The prosecution witnesses have deposed as under:
7.1. PW1 ASI Kavi Raj has deposed that on 22/11/2013, he visited the spot of incident on receiving the DD entry no. 36A which is Ex.Pw1/A alongwith Ct. Dayanand and found the landlord Raj Kumar Giri at the spot who pointed out the room wherefrom the foul smell was coming out and room was locked from outside. Landlord disclosed on enquiry that Rahul Sharma was the occupant of that room and used to reside with his wife Khushbu since April, 2013. It is further deposed that the landlord disclosed that accused was lastly seen on 19/11/2013 and thereafter on 22/11/2013, he felt a very strong smell coming out of the room and blood had also flown out underneath door and was visible in the courtyard. He informed the PS and Crime team which visited the spot of incident. Crime team in-
charge E.S Yadav removed the lock along with latch with the help of hammer and iron bit arranged by the landlord.
FIR No. 690/13 State Vs. Rahul Sharma 4 of 85 7.1.1. PW1 has further deposed that on opening the door, he witnessed a lot of blood on the bed and floor and a big red and black bag was lying there and was containing a plastic sack in which a dead body was stuffed. On bring out the dead body, neck of the body was found slit with a sharp edged weapon and landlord identified the body to be of Khushbu. Broken bangles were lying on the floor and bed. Blood stains were present on the pillow and quilt. Body was infested by the maggots and emanating a very foul smell. He prepared rukka Ex.PW1/B on the basis of DD no. 36A and handed over to Ct. Krishan who got registered FIR from PS and investigation was assigned to Inspector A.P. Singh. The dead body was removed to GTB Hospital through Ct. Dayanand along with application Ex.PW1/8.
7.1.2. During search of the room by the IO, passbook of Syndicate Bank and PAN card belonging to Rahul were found in the room. IO seized broken bangles, earth control with blood vide seizure memo Ex.PW1/1 and seized traveling bag in which the dead body was found stuffed vide seizure memo Ex.PW1/2. Mattress was seized vide memo Ex.PW1/3, quilt, bedsheet and towel were vide seizure memo Ex.PW1/4, lock and latch was seized vide seizure Ex.PW1/5. IO also seized pillow covers, nighty, small towel and slippers vide seizure memo Ex.PW1/6. Passbook and PAN card were also seized vide memo Ex.PW1/7. Photographer of crime team took FIR No. 690/13 State Vs. Rahul Sharma 5 of 85 photographs Ex.C3 to Ex.C67 of the spot. He has identified the PAN card as Ex.P1, Passbook as Ex.P2, Latch along with lock as Ex.P3, Quilt as Ex.P4, Bed Sheet as Ex.P5, Towel as Ex.P6, Mattress as Ex.P7, Bag as Ex.P8, Pillows as Ex.P9 and P10, Nighty as Ex.P11, Towel as Ex.P12, Slippers as Ex.P13 and bangles pieces as Ex.P14.
7.1.3. During cross examination, it is admitted that there was a kitchen besides the room which was not found locked and crime team tried to lift the finger prints from the latch as well as lock of that room but could not be lifted, however, this fact is not mentioned in his statement u/s 161 Cr.P.C. The latch and lock were removed by the crime team and even crime team tried to lift the finger prints from the articles inside the room but could not succeed. Crime team in- charge SI E.S Yadav tried to lift the finger prints but this fact is not mentioned in his statement given to police. No foot prints were visible in the room and he did not observe any blood stains in the kitchen.
7.1.4. PW1 has further deposed that he tried to verify the address of the accused as well as deceased but could not find out and the dead body was removed to hospital at about 8:30 pm after sending the rukka for lodging of FIR. It is further deposed that landlord Raj Kumar Giri did not give the statement on the same day as he was puzzled. The scene of crime indicated that there was struggle FIR No. 690/13 State Vs. Rahul Sharma 6 of 85 between the deceased and assailant. Crime team searched the room and kitchen, but it is denied that a key of the lock of the room was found in the kitchen or that the knife was recovered from the room. It is further deposed that the landlord disclosed the mobile phone of the accused to him but it was found switched off. He could not tell the exact color of the bed sheet, quilt, pillow, slipper and bangles or the brand and color of the latch and lock removed from the room.
7.2. PW2 Raj Kumar Giri was the landlord and owner of premises bearing no. B-13/1B (Old No-B-48), Gali no. 3, Ambika Vihar, Delhi and let out one room and kitchen to accused Rahul Sharma on 15.04.2013 and accused started residing in the premises with his wife Khushboo. He let out the premises to accused on the introduction of one Umesh who was known to him and accused wanted room for 3-4 months. It is further deposed that accused used to purchase grocery from his store and kept on paying rent regularly till August 2013, but stopped to pay rent from Sept. 2013 till October 2013. It is further deposed that on 20.10.2013, he requested to accused to clear outstanding rent as well as dues of grocery, but accused told him that he had become jobless and assured to pay dues soon, however, he instructed his wife Khushbu to pay the dues as he was going for his touring job, but Khushbu kept on residing alone in the room. It is further deposed that relatives of the deceased FIR No. 690/13 State Vs. Rahul Sharma 7 of 85 had been visiting her and she introduced them as her cousin or maternal cousins etc. 7.2.1. PW2 has further deposed that he did not see the deceased since 16.11.2013 upto 22.11.2013 when he went to upstairs of his house for some work and noticed a foul smell emanating from the room let out to Rahul and flies were hovering around. It is further deposed that he noticed that room was locked outside but kitchen was opened and foul smell was emanating from room. He informed to the neighbors about the same and at about 6.30 pm, he made a PCR call. Police reached the spot and peeped inside the room and thereafter removed the lock and latch of the room and on opening, a red and black bag was found containing a plastic sack in which a dead body of woman was found in decomposed condition and infested by maggots. He identified the dead body to be of Khushbu whose neck was slit by a sharp weapon. He provided the address and mobile phone of accused along with his two passport size photographs to police. Police team also took the photographs of the premises in his presence and thereafter dead body was sent for PM.
7.2.2. During cross examination by Ld. APP for State, he has admitted that he had stated to the police in his statement that Rahul's parents and relatives never used to visit Rahul and on inquiry, Khushbu told him that she and Rahul had got married FIR No. 690/13 State Vs. Rahul Sharma 8 of 85 against the wishes of their parents due to both the families were angry and she requested him not to tell anybody about it, but it is denied that this information was given by Rahul as recorded in his statement u/s 161 Cr. P.C. It is further deposed that a lot of persons used to visit Khushbu and she used to tell him that those were her relatives. It is further deposed that accused and deceased had been leaving happily and he never seen them fighting and it is denied that he had disclosed to police in his statement u/s 161 Cr. PC that some days prior to the disappearance of accused, he had seen him quarreling with deceased or that on 17.11.2013, Rahul and Khushbu had any quarrel with each others as Khushbu wanted to go his sister's home at Aligarh or that on 18.11.2013 at about 6.00 am, he saw accused and Khushbu leaving the home together but they came back at 9.00 am and disclosed to him that they had missed their train. It is further denied that he disclosed to police that on 19.11.2013, at about 8.00 am, he saw accused Rahul leaving the house with a small bag in his hand and on asking he disclosed that he was going to drop Khushbu at her sister's house and Khushbu had already left ahead to him.
7.2.3. PW2 has admitted that he made a call to Rahul when he saw that the room of Rahul was locked and a strong foul smell was emanating of that room but his phone was switched off. It s further admitted that when he entered into room with police, he saw a lot of FIR No. 690/13 State Vs. Rahul Sharma 9 of 85 blood on floor, bed sheet, pillow covers and towels besides broken pieces of bangles lying on floor as well as bed and one red maxi was also lying on bed. On seeing the photographs, he has admitted that the photograph Mark PW2/A1 was hanging on the wall of the room and photographs PW2/A2 to A48 have depicted the dead body which was found in his premises and its condition and has also shown the scene of crime, and the photographs were taken by photographer.
7.2.4. PW2 has admitted that his statement was recorded under Section 164 Cr. PC before Ld. MM. He has admitting during reply to the court questions before opening the sealed cover containing his statement in which he admitted that he was asked about his name and particulars by the Ld. MM who recorded his statement and also about his voluntariness to make that statement. He has admitted that he did not inform to Ld. MM before making his statement that he was under threat or coercion to make that statement and disclosed that he was making statement voluntarily. He has admitted that statement Ex. PW2/1 was recorded by Ld. MM Sh. Jitender Singh in which he had stated that Rahul had quarreled with his wife because his wife wanted to go to his sister's place at Aligarh and on 18.11.2013 at about 6.00 am, accused along with Khushbu left his premises to drop her at her sister's place, but he did not remember whether they came back or on inquiry disclosed that they missed their train.
FIR No. 690/13 State Vs. Rahul Sharma 10 of 85 7.2.5. PW2 was asked by the court as to whether he had told to Ld, MM that on 19.11.2013, he saw Rahul leaving the house along with a small bag and court observed that he avoided the direct gaze of the court, gulped hard, shifted his gaze repeatedly and tried to avoid the answer of the question and in murmuring voice replied that he must have stated so but did not remember. It is further admitted that accused disclosed him that he was going to drop his wife at her sister's place and this reply was given after reading the statement and, he had told to Ld. MM that on inquiry regarding Khushbu, accused replied ' wo aage nikal gai hai'. He has further deposed that he made statement before the Ld. MM as told by the police and his statement was given to him in writing which was given by him to the Ld. MM and he could not state true facts before him. It is further deposed that the articles belong to Rahul and Khushbu were handed over by him to the mother of Khushbu in the presence of police officials.
7.2.6. During cross examination, PW2 has deposed that accused used to reside in tenanted premises with Khushbu but sometimes accused used to live outside for 5-7 days, but in the absence of Rahul, no unknown person visited Khushbu and she used to tell that visitors were her relatives. It is further deposed that he saw those visitors once or twice, due to cannot say as to whether different boys used to visit her on different times. He also could not see as to FIR No. 690/13 State Vs. Rahul Sharma 11 of 85 whether 2-3 boys visited the deceased on 15.11.2013 as deceased had purchased biscuits and namkeen for them, but he could not see them and only saw their foots. In reply to court question, he disclosed that he saw the trounced legs but did not know whether those were male or female but Khushbu used to reside alone and he assumed that they would be visiting her. It is further deposed that prior to 15.11.2013, he saw some boys visiting the house of accused and on inquiry, deceased disclosed them to be the family members coming to meet her secretly, however, they never stayed during night and the persons who visited her on 15.11.2013 had left at around 9/10 pm, as he heard their voices till that time and thereafter went to sleep. It is further deposed that that he did not lock the main gate of house before going to sleep but on 16.11.2013 in morning, gate was intact and, from the period from 16.11.2013 to 22.11.2013, he did not hear any sound at first floor.
7.2.7. PW2 has further deposed that Khushbu never stated to him that she had threat to her life from family members. It is further deposed that police recorded his statement at PS but it was not read over to him. It is further deposed that on 23.11.2013, he was in PS till around 9.00 pm and saw the accused in PS at about 8.00 / 8.30 am and on same day police took him to the house of accused in his search between 11.00 am to 12.00 noon, but Rahul was not accompanied them. It is admitted that during the search, police FIR No. 690/13 State Vs. Rahul Sharma 12 of 85 discovered a knife under the bed and also key of the room from kitchen along with some documents kept on the fridge. He identified the dead body of deceased from her face because she stayed there for a long time. It is further deposed that he disclosed that name of the accused under the pressure of police and disclosed the other details of the crime as police had threatened him to implicate him falsely, if he failed to help them during investigation and even deposed before the Ld. MM under pressure. It is further deposed that police had given a piece of paper containing his statement to make before the Ld. MM and he memorized the statement before making statement. It is further deposed that he saw the accused first time on 20.10.2013 in PS between the period from 15.4.2013 to 22.4.2013, but Khushbu never told anything to him which could indicate that relations between them were not cordial.
7.3. PW3 SI E.S Yadav has deposed that he visited the spot of incident on 22/11/2013 at about 7:30 pm as incharge of the crime team along with photographer Ct. Ajeet Singh and proficient ASI Rajinder. Ct. Ajeet Singh took photographs of the locked premises and thereafter latch along with lock was removed. There was a foul smell throughout the room and a dead body was found stuffed into a plastic sack and then put inside the red and black travel bag in decomposed condition. The throat of that lady was slit and landlord identified the dead body to be of Khushbu i.e. wife of tenant Rahul.
FIR No. 690/13 State Vs. Rahul Sharma 13 of 85 He prepared SOC report Ex.PW3/1 and has identified the lock and latch Ex.P3.
7.3.1. During cross examination, he has admitted that ASI pointed out the room where the dead body was found, before opening the door, fluid was coming out of the room under the door and he guessed that there must be a dead body. They tried to lift the finger prints from the lock, latch and door but could not succeed, however, he did not mention about it in his report. He entered into the kitchen but did not inspect it properly. It is admitted that from the scene of crime, it was possible that there might be struggle/ scuffle between the deceased and assailant. He could not collect the incriminating evidence like footprints, heirs etc. He did not find anything underneath or around the bed and could not admit or deny as to whether any knife was recovered from underneath of bed in the room wherefrom the dead body was found or any key was recovered from the kitchen. Again said, he did not find any knife underneath the bed. He did not check the main gate due to could not observe the blood stains on the main gate and even he did not find the blood stains on the wall, fridge or inside the kitchen. No finger prints were found on the refrigerator. It is denied that he did not inspect the scene of crime or his report is manipulated.
FIR No. 690/13 State Vs. Rahul Sharma 14 of 85 7.4. PW4 HC Kishan pal has corroborated to PW1 that he visited the spot of incident where he met landlord Raj Kumar Giri and witnessed that IO removed the latch from the door with lock intact with the help of hammer and chisel. He also observed that the dead body was stuffed into plastic bag and then put inside travelling bag and, a lot of blood was found on the clothes lying in the room and broken bangles were also lying on the bed. A decomposed dead body infested with maggots and having slit neck was found in the room and was identified as of Khushbu, wife of accused. The dead body was removed to GTB hospital through Ct. Dayanand and ASI Kavi Raj prepared the rukka and got lodged the FIR from PS and handed over the original rukka and copy of FIR to Ins. A. P. Singh. He witnessed the seizure of bangles, travelling bag, mattresses, quilt, bed-sheet, one towel, blood stained pillows, nightly, pink towels, slippers, latches alongwith lock, Pan Card and passbook of accused from the spot of incident which were seized vide memo Ex.PW1/1 to Ex.Pw1/7 and has identified the pan card, passbook, quilt, latch with lock, bed-sheet, towel, mattress, bag, nightly, slippers and piece of bangles as Ex. P1 to Ex.P14.
7.4.1. During cross examination, he has admitted that he did not make any departure entry in PS and reached the spot of incident at about 6.40 pm and a lot of public persons had gathered at spot besides beat officer, but he did not remember as to whether ASI Kavi FIR No. 690/13 State Vs. Rahul Sharma 15 of 85 Raj informed the crime team directly or through PS. He remained at the scene of crime till 9.00 pm when rukka was handed over to him and thereafter he along with Insp. A. P. Singh remained there till 2.00 am, when he left the scene of crime along with rukka. It is further deposed that the dead body was still at the scene of crime till he left for registration of FIR and, Insp. A.P. Singh reached the scene of crime at 10.40 pm, but by that time, dead body was still at the scene of crime. On confrontation to a document Ex. PW1/8, PW could not explain properly about the timings of reaching the dead body to to mortuary of GTB Hospital.
7.4.2. PW4 did not remember when he left with rukka to PS or that crime team was still there or had completed the proceeding by that time. He did not remember whether crime team conducted proceedings at the instance of IO and also did not remember whether crime team inspected kitchen or not. The articles found in the room were not seized by ASI Kavi Raj prior to leaving him with rukka to PS, but he witnessed the procedure of sealing and seizure from outside the room. He did not witness the process of lifting of finger prints from spot but crime team officials took photographs of the spot and conducted the search, but he was not aware about the procedure minutely. His statement was recorded in PS on next day. He was not aware whether hammer used to remove latch was seized by IO, but the plastic bag in which dead body was found was FIR No. 690/13 State Vs. Rahul Sharma 16 of 85 of white color.
7.5. PW5 Dr. Neha Gupta conducted the post mortem on the dead body of the deceased and started the postmortem at about 11:40 am and completed at about 12:40 pm. She observed that the dead body was highly decomposed. Rigor mortis passed off. Post mortem staining could not be seen due to decomposition. Post mortem peelings of skin present. Marbelling present all over. Scalp hair lose and lying by side of scalp. Greenish black discoloration present over all the body. Teeth lose. Frenulum intact. She observed ante mortem injuries as under:
"Incised cut throat wound of size 11x0.5x4.5 cm present horizontally over anterior aspect of neck, 6.5 cm below chin, 3 cm below left angle of mandible and 2.5 cm below right angle of mandible. The wound is superficial on left side end cutting only the skin and subcutaneous tissue exposing underline sternocledomastoid muscle, rest of the part of the wound goes cutting the skin subcutaneous tissue muscle of the neck soft tissue, trachea thyroid gland, thyroid cartilage, esophagus and carotid sheath structures on right side including carotid artery and internal jugular vein. The margins of the wound show multiple skin tags".
7.5.1. Time since death was about one week. Cause of death hemorrhagic shock as a result of ante-mortem cut throat injury to FIR No. 690/13 State Vs. Rahul Sharma 17 of 85 neck and associated blood vessels produced by sharp edged weapon. Injury No. 1 was sufficient to cause death in ordinary course of nature. Her PM report is Ex.PW5/1.
7.5.2. She handed over one sealed parcel containing the clothes of the deceased along with sample seal and sealed envelope containing blood on gauze of the deceased and plastic gunny bag. On 4/2/2014, she furnished her subsequent opinion regarding use of one knife with metallic silver color blade and handle, which was having single edged having pointed end, and also having reddish brown stains on both the surfaces. She prepared the sketch of the knife Ex.PW5/2 and prepared her detailed subsequent opinion Ex.PW5/3 and opined that the injury sustained by the deceased was possible by that knife Ex.P15.
7.5.3. During cross examination, it is denied that the rate of decomposition becomes slow after depositing the body in mortuary and time of death was 7 days prior to the day of postmortem because the teeth had loosened which set in after period of 7 days besides the gloves and stocking peeling of skin which is also a clear indication that dead body was at least 7 days old. It is denied that due to decomposition, the face of the body had disfigured to the extent that it was not possible to recognize even by the known person. It is further explained that her opinion regarding the time of FIR No. 690/13 State Vs. Rahul Sharma 18 of 85 death was in approximation and time of since death could be plus or minus one day, but cannot be plus three days. It is admitted that if the process of decomposition of face beyond reorganization starts, then death must be occurred at least 10-15 days prior to autopsy. The dead body was highly decomposed due to it was very difficult to observe any alien material such as hair, blood stains, etc. on the dead body and she did not preserve the nail clippings for the forensic analysis.
7.6. PW6 Ct. Dayanand also visited the spot of incident on 22.11.2013 at about 6.40 pm along with ASI Kavi Raj and Ct. Kishan Pal and corroborated the seizure of a number of articles from the spot and also dead body of the deceased. He removed the dead body to mortuary of GTB Hospital under the direction of ASI Kavi Raj along with an application for preservation of dead body and remained deputed guard till 25.11.2013 when postmortem of dead body was conducted and body was released to relatives of deceased after postmortem.
7.6.1. During cross examination, he has deposed that crime team consisting of In-charge, photographer and one another official visited the spot and conducted proceedings in his presence, but he was not aware as to whether crime team inspected the kitchen. It is further deposed that when he left for mortuary with dead body the crime FIR No. 690/13 State Vs. Rahul Sharma 19 of 85 team was still at the scene of crime, but he did not witness the proceeding of crime team being outside the room. He did not remember the time when he left with the dead body to GTB hospital and articles found at the scene of crime were not seized in his presence nor statement of any witness was recorded in his presence. He did not go inside the room as foul smell was emanating from the room.
7.7. PW7 Ms. Shitlesh Dohare has proved the marriage registration documents under UP Hindu Marriage Registration Rules vide Sl. No-2850 and copies of registration documents are Ex.PW7/1 and marriage certificate of accused and deceased is Ex.PW7/2.
7.8. PW8 HC Ramesh was MHC(M) and on 23.11.2013, he received eight sealed parcels from Insp. A. P. Singh and also personal search of accused vide entry Ex. PW8/1. On 24.11.2013, IO again deposited two sealed covers vide entry Ex. PW8/2. On 13.12.2013, IO again deposited two sealed parcels vide entry Ex.PW8/3.
7.8.1. On 17.12.2013, he sent sealed parcels to FSL, Rohini through Ct. Rajesh against RC Ex.PW8/4 and Ct. Rajesh handed over the acknowledgement of FSL Ex.PW8/5 to him and on 03.02.2014, Ct. Jaibeer Singh brought back the exhibits from FSL FIR No. 690/13 State Vs. Rahul Sharma 20 of 85 and deposited vide entry Ex. PW8/1. On 04.02.2014, he sent the sealed pullanda of knife through Ct. Rajesh Kumar to Head of Forensic Department, GTB Hospital under the direction of SHO for subsequent opinion vide entry Ex.PW8/6 and articles were not tempered with during his custody.
7.8.2. During cross examination, he has explained that in his statement u/s 161 Cr. PC, he disclosed to receive eight sealed parcels whereas before this court he has stated 10 parcels vide entry no. 922 dt. 23.11.2013 as he inadvertently read the parcels of broken bangles and earth control with blood as single parcel being seized vide single memo.
7.9. PW9 Rahul is the brother of Khushbu and has deposed that in the year 2012, a few days prior to Raksha Bandhan, his sister Khushbu eloped with Rahul Sharma and later on they came to know that she had got married on 10.12.2012. After about 10-11 months of marriage, deceased made a call to him and contacted, and he visited the house of deceased at Karawal Nagar and she had been residing in tenanted premises comprising one room and kitchen at first floor and, he has identified the accused as her husband. Thereafter, he visited the house of deceased 2-3 times and on 30.10.2013, she told him that the behavior of accused was not good towards her and accused used to quarrel with her. He consoled her that such type of FIR No. 690/13 State Vs. Rahul Sharma 21 of 85 disputes happens in married life, but few days later she made a call and she was worried and suspected that her husband was conspiring something against her. He assured to meet her and went to his job. After 2-3 days, IO of this case called him to PS Karawal Nagar and informed that his sister had been murdered. On next day, he identified dead body of his sister vide Ex. PW9/1 and thereafter she was cremated. He has identified the worn clothes of deceased including pajama and ladies shirt as Ex.P15 and Ex.P16.
7.9.1. During cross examination, he has deposed in the month of November, 2013, he was having mobile no. 9891838575 in the name of Attar Singh, but he has lost it on 03.03.2014 in a marriage, but he did not lodge any complaint regarding it. On the day of meeting to his sister in Nov. 2013 at Loni Gole Chakkar, he was using the similar mobile number, but she did not make any call to her sister and she met him suddenly. He did not remember the mobile number of deceased being long time but he had conversation with deceased in the month of November 2013, but on 17.11.2013, he did not have any conversation with his sister.
7.9.2. PW9 has admitted that the parental house of accused is in same locality where he resides and on 17.11.2013, mobile was available with him and he used to have conversation with accused prior to 17.11.2013. It is denied that on 17.11.2013, he met his sister FIR No. 690/13 State Vs. Rahul Sharma 22 of 85 but has replied that he met 2-3 days prior to receiving the information of her death, but he did not remember the day or time gap. It is further deposed that that IO informed him that he had got his number from the mobile of deceased where it was stored in the name of Bhai or something similar, but IO had not shown mobile phone to him. He received the telephonic call of IO at about 9.00 am and he was at nehar, Loni at that time accompanied with his friend Danu and they both went to PS on foot from there, whereas his house was at a distance of 5-6 minutes from spot but he did not inform his mother and father about the incident and phone call was made by IO Insp. Arvind Partap Singh.
7.9.3. PW9 has further deposed that on 23.11.2013, he along with his mother went to PS at around 4.00/5.00 pm and during his first visit he was neither taken to room of his sister nor shown her dead body and, even police did not disclose as to how murder took place. On next day, his statement was recorded during his half an hour stay. They did not lodge any report when his sister eloped with accused as it was inter-caste marriage and his family was not happy with this married due to his sister never visited his house after marriage nor his parents ever visited her. He never came to know if accused and deceased ever visited the house of accused.
FIR No. 690/13 State Vs. Rahul Sharma 23 of 85 7.10. PW10 Ct. Mohit attended the 100 number call on 22/11/2013 at about 06:33 pm made by one Sarita Giri from phone number 9899436382 regarding the dead body of a lady in her house and he filled the PCR form Ex.PW10/1.
7.11. PW11 Ct. Naresh Pal was posted on PCR van on 22.11.2013 and at about 6.40 pm, he visited the spot of incident on receiving information from PCR control room. He met landlord Raj Kumar Giri at the spot and communicated the information to Control Room that foul smell was emanating from room and room was locked from outside. When he reached there ASI Kavi Raj had already reached there and summoned the crime team. Crime Team brake opened the latch of door and on opening it, the dead body was found stuffed in a bag and blood was flown out of the bag. Crime team took the photographs and he returned back to his base.
7.11.1. During cross examination, he has deposed that he reached the spot within 10 minutes of receiving the call and stayed there till 8.00 pm and communicated the information to the control room at the time of his departure from the spot. Crime team arrived within 30- 35 minutes of his arrival at the scene of crime and latch of door was removed by crime team in his presence but he could not recall whether any finger prints was lifted from the latch and the door in his presence, and no one touched the latch or door and even none tried FIR No. 690/13 State Vs. Rahul Sharma 24 of 85 to make efforts to brake open the lock or latch. He has corroborated that the photographer took the photographs but was not aware whether any videography was done, however, he did not enter the room and observed the proceedings from outside. He was not ware whether anybody searched underneath the bed but he observed the proceedings conducted by Insp. Arvind Partap Singh and ASI Kavi Raj and was also not aware whether any mobile was recovered from the room. IO did not make any call to the brother of deceased and he did not witness any document. He entered his visit to the spot in his log register but IO did not seize it.
7.12. PW12 Ct. Rajesh joined the investigation with IO on 23.11.2013 and carried out the search of accused and at about 4.30 pm, a secret informer disclosed to IO about the arrival of accused at Karawal Nagar chowk and he was arrested from there vide arrest memo and personal search memo Ex.PW12/1 and Ex.PW12/2. IO interrogated the accused and recorded his disclosure statement Ex.PW12/3 and accused disclosed that he could get recovered the weapon of offence and keys of the lock pertaining to his tenanted room and also to produce the love marriage certificate with deceased at Ghaizabad and also marriage invitation card of his second marriage with Preeti Sharma.
FIR No. 690/13 State Vs. Rahul Sharma 25 of 85 7.12.1. PW12 has further deposed that on 24.11.2013, accused led police team to his house at village Hazipur Behta, Rahul Garden, Loni, Ghaziabad, U.P and pointed out towards a bed (diwan) lying in the room at first floor and took out one black bag from the box of the bed and took out one chhurri, key, marriage certificate and invitation card of his second marriage which were seized by IO vide seizure memo Ex.PW12/4. IO prepared sketch of knife Ex.PW12/5 and marriage invitation with Preeti Sharma Ex. PW12/6 was seized vide memo Ex.PW12/7 and IO prepared site plan of place of recovery Ex.PW12/8. PW has identified the chhurri as Ex.P15 and key as Ex.P17.
7.12.2. PW12 has further deposed that on 13.12.2013 he again joined investigation and went to GTB Hospital and from there he received sealed cloth parcels of deceased containing blood, plastic bag, two sample seals and one envelope containing blood sample on gauze and another envelope containing PM report which were handed over to IO vide seizure memo Ex.PW12/9. On 17.12.2013, he collected 11 sealed parcels from MHC(M) vide RC Ex.PW8/4 and deposited with FSL, Rohini and handed over the AD Ex.PW8/5 to MHC(M). On 04.02.2014, he collected sealed parcels containing weapon from MHC(M) against RC Ex.PW8/6 and submitted with Forensic department alongwith request of IO and thereafter collected the subsequent opinion from hospital and submitted with IO.
FIR No. 690/13 State Vs. Rahul Sharma 26 of 85 7.12.3. During cross examination, he has deposed that he did not make any departure entry on 23.11.2013 but left PS at around 10.30 am and reached at the house of accused at around 11.00 / 11.30 am for his search, but accused was not traceable. On reaching house of accused, IO made enquiry from neighbors, but no enquiry was made from family of the accused. Thereafter, at about 1.30 pm, they went to Ambika Vihar, Delhi and made enquiry from neighbor of tenanted premises but did not remember the names of those persons who were interrogated by IO. They left Ambika Vihar at around 3.00 pm and reached near Alok Kunj School near Karawal Nagar where they searched the accused till 4.00 pm, and one secret informer met IO there and informed about accused and at about 4.30 pm, near DTC bus stand, accused was apprehended and they remained at the spot of arrest of accused till 6.30pm /7.00 pm and thereafter went to PS along with accused after arrest.
7.12.4. PW12 has admitted that they did not visit any other house at village Hazipur Behta after making enquiry in the neighborhood of accused Rahul, but they visited the house of brother of deceased and apprised about the murder of deceased to him and this fact was recorded in his statement Ex. PW12/DA. It is admitted that the father of accused met them in gali near house and informed them that accused had gone to Gurgaon, Haryana since 22.11.2013 and had not returned, but father of accused was not interrogated. The house FIR No. 690/13 State Vs. Rahul Sharma 27 of 85 owner of Rahul met them on 23.11.2013, but no enquiry was made from him but he was not aware whether Umesh was interrogated. It is denied that accused was not searched in the area of Alok Kunj School or that on 23/11/2013 between 4:00 pm to 7:00 pm, they were present at Priya Marriage Home at Uttarachal Vihar Society and Ct. Lokender Dhama was also with them.
7.12.5. PW12 has denied that Rahul was produced by Rakesh Kumar before Ct. Lokender Dharma, who produced him before IO at Priya Marriage Home and then he was arrested. It is further deposed that they reached the place of arrest of accused at about 4.00 pm and saw the accused coming from side of Bhajan Pura and was immediately overpowered by him on pointing out of secret informer. It is admitted that there were two ATM booths in front of DTC Bus Depot and also Kanika Pathology Lab and Dental Life Medical care in front of Bus Depot besides two markets namely Dharam Singh and Kundan Singh Market, but neither the guard from ATM booths nor any other person was called from DTC booth or market to join the arrest proceedings. It is admitted that he had not gone to call any person to join proceedings but it is denied that IO did not make efforts to join independent witness in arrest proceedings. It is admitted that IO did not call any DTC official to join investigation, but information of arrest was given to father of accused who came to spot of arrest himself. IO did not give any notice to any person who FIR No. 690/13 State Vs. Rahul Sharma 28 of 85 refused to join investigation. It is denied that accused was handed over by family members to police or that he was removed to PS by an Alto car. He was not aware about the visit of Ins. Lekh Raj and ASI Kavi Raj to house of accused on 23.11.2013.
7.12.6. PW12 has further deposed that on 24.11.2013 at about 5:00 pm, he along with IO left the PS to the house of accused along with accused to make recovery, but it is denied that on 24.11.2013, he along with IO took away the father of accused along with Rajiv Pandit and Rajesh Kumar from the house of accused to PS but it is denied that he did not visit to house of accused to make recovery. However, it is admitted that on 24/11/2013, they did not visit PS Loni before making recovery and even site plan Ex.PW12/8 is also not bearing his signature. But, it is denied that it was not prepared in his presence. He was confronted with photographs Ex.PW12/DA1 to ExPW12/D7 and has admitted that these are depicting the house of accused, but it is admitted that the photograph Ex.PW12/DA7 is depicting the staircase in front of room of accused but it is not reflected in site plan, however, it is admitted that there is a room at first floor at point B in the site plan, but it is denied that it is a chowk of the house of the accused. He was not aware about the size and color of bed lying in room of accused at first floor, but the color of the bag was black which was taken out by accused from the bed. It is reiterated that accused took out chhurri first and thereafter one key FIR No. 690/13 State Vs. Rahul Sharma 29 of 85 and then took out marriage certificate and marriage invitation card from the bag and presented before them and it is denied that marriage card was produced by father of accused before IO in PS. 7.12.7. PW12 has reiterated that they noticed blood stains on chhurri, but no such blood stains were spotted on other articles. Father of accused was present when articles were seized but his signatures were not obtained on seizure memo. IO did not call the neighbors at the time of seizure and sealing of articles and even no one came forward to join the investigation and even IO did not obtain the signature of any neighbor on the seizure memo and even no notice was served upon those neighbors who refused to join proceedings. IO did not call the Pardhan and Counselor / Chowkidar of the village to join the recovery proceedings. It is denied for want of knowledge that the information of arrest of accused was published in newspaper Mark PW12/D or he gave an interview to magazine Mark PW12/D1.
7.13. PW13 witnessed the opening of the lock put on latch removed from the tenanted premises of the accused and it was opened by the key recovered at the instance of the accused. The application and order of the application along with the production warrant to call the accused to join proceedings are Ex.PW13/1 to Ex.PW13/3.
FIR No. 690/13 State Vs. Rahul Sharma 30 of 85 7.14. PW14 Insp. Arvind Partap Singh was assigned investigation by handing over the rukka Ex.PW1/B and copy of FIR Ex.C1 by Ct. Kishan Pal. He visited the spot of incident along with Ct. Kishan Pal. ASI Kavi Raj briefed the case history but dead body had already been shifted to mortuary and crime team had also left the spot after inspection. ASI Kavi Raj pointed out the spot of incident and he prepared site plan Ex.PW14/A at the instance of ASI Kavi Raj. He noticed the bangles of deceased, blood stains on floor and concrete and took into possession all the articles, bed-sheet, plastic bag, mattresses, travelling bag, two pillows, nighty, one small pink towel, slippers, latch with lock, passbook and pan card of accused, etc. which were seized vide memo Ex.PW1/1 to Ex. PW1/7. He has identified the passbook and PAN card Ex.P1and Ex.P2 and has deposed that during the statement, landlord Raj Kumar Giri disclosed that on 19.11.2013 at about 7.00 pm, accused left the tenanted room alone after putting a lock on the door and thereafter did not return. It was also disclosed that accused informed the house owner that he was going along with his wife to drop her to her sister's house at Aligarh and she had already left some steps ahead to him. He asked the public persons to join investigation but none agreed. He deposited sealed parcels with MHC(M).
7.14.1. PW14 has further deposed on 23.11.2013, he arrested the accused after carrying out search to him at his house and also FIR No. 690/13 State Vs. Rahul Sharma 31 of 85 interrogated and recorded the statement of brother of deceased namely Rahul who informed that deceased got married with accused and accused was not present at his house. The father of accused informed him that accused had gone to Jaipur to meet his friend, but on way back to PS, a secret informer informed him at about 5.30 pm that accused would come at Kartawal Nagar chowk and on pointing out of secret informer, accused was found coming from the side of Khajuri to going towards DTC Bus stand, Karawal Nagar. Accused was arrested and his disclosure statement was recorded in the presence of Ct. Rajesh and accused disclosed during interrogation that he committed the murder of deceased to get remarried with Preeti Sharma on 20.11.2013. He disclosed to get recovered the weapon of offence, key of lock put on room and other articles. On 24.11.2013, he took the accused on Police Custody and during day, he performed his duty in Rally of Congress Party, at about 5.00 pm, he took the accused to his house where accused got recovered a knife / chhurri, key, marriage certificate with deceased Khushbu and marriage invitation card of his second marriage. He prepared sketch of the chhurri and noticed blood stains on both sides. All the articles were seized and sealed vide seizure memos and he prepared site plan of spot of recovery.
7.14.2. PW14 has further deposed that on 25.11.2013, house owner Raj Kumar came to PS to seek the permission to clean his FIR No. 690/13 State Vs. Rahul Sharma 32 of 85 room and accused was sitting in PS and he identified the accused to be his tenant, who had locked the room on 19/11/2013 thereby stating that he was going to drop his wife at Aligarh. He recorded the statement of family members of deceased regarding identification of dead body vide Ex.PW14/B and Ex.PW9/1 and completed inquest proceedings vide documents Ex.PW14/C to Ex.PW14/G and got conducted the P.M. on the dead body . He recorded the statement of crime team members and collected photographs Ex.C3 to Ex.C67, but he saw dead body first time in mortuary. The photograph Ex.P14/H is depicting the accused with his second wife Preeti Sharma and this photographs was produced by the father of accused during investigation and same was placed on file. He interrogated Preeti Sharma, but she was not concerned to this case due to she was not made witness to this case. On 29/11/2013, he got collected the PCR form from Ct. Naresh Pal.
7.14.3. PW14 has further deposed that on 03.12.2014, he moved an application Ex.PW14/I before the court of Ld. MM to get recorded the statement of Raj Kumar Giri u/s 164 Cr. PC vide written request Ex.PW14/J and statement Ex.PW14/K was recorded. He got collected the PM report from hospital through Ct. Rajesh and deposited the articles with MHC(M) after seizure. He also sent the sealed parcels to FSL and got collected the report. He also moved an application Ex.PW14/L to collect the marriage certificate of FIR No. 690/13 State Vs. Rahul Sharma 33 of 85 accused with deceased from Registrar of Marriages and documents were collected. On 01.01.2014, he took the draftsman Mukesh Kumar to spot of incident and he prepared the scale site plan Ex.C68 which was collected by him from his office. Passbook of accused was also got verified from Bank vide application Ex.PW14/N and branch Manager handed over report Ex.C69 and other documents of account Ex.C69 were also furnished. He collected the FSL report with forwarding letter Ex.PW14/N1 to N3 and thereafter he got collected the subsequent opinion from PM doctor vide application Ex.PW14/O from Forensic department.
7.14.4. During cross examination, it is admitted that accused was arrested at the instance of secret informer and led to the recovery of chhurri, key, marriage documents and marriage invitation card of his second marriage from his house, but he did not seize the bag from which all articles were got recovered. He prepared the sketch of the chhurri after measurement and noticed bloodstains over the chhurri on both sides, but, it is admitted that chhurri shown in the photograph Ex.PW14/DA was not seized. It is denied that accused has been falsely implicated in this case.
7.15. PW15, the then Ld. MM Sh. Jitender Singh recorded the statement of the landlord Sh. Raj Kumar Giri on 3/12/2013 on moving the application Ex.PW15/A by IO. He recorded the statement FIR No. 690/13 State Vs. Rahul Sharma 34 of 85 after putting certain questions to the witness to ascertain the fitness of his mind to make statement and also to ascertain his voluntariness to make the statement Ex.PW2/1. He completed the proceedings Ex.PW15/B to Ex.PW15/E. His testimony is un-rebutted as he has not been cross examined by the accused.
7.16. DW1 Adesh Kumar is the father of the accused who has deposed that on 23/11/2013 at about 9:30-10:00 a.m., SHO along with ASI Kavi Raj and other police team came to him and asked him to accompany to PS, but the locality persons who gathered at the spot intervened and SHO directed one Naresh Dhama, Rajiv Pandit and Rajiv Thekedar etc. to search the accused and to produce before him. He was taken to PS and IO obtained his signatures on some blank documents including one blank arrest memo. Police officials also obtained the signatures of the Rahul on some blank papers and, he also produced the clothes of the accused and marriage invitation card of the second marriage to the IO on the pretext to save his son. On 24/11/2013 in evening, he along with Rakesh and Rajiv Pandit went to meet IO and Rakesh and Rajiv Pandit remained outside of PS. He handed over the marriage invitation card of the accused with Preeti Singh. Thereafter, he went to Priya Marriage home wherefrom IO went inside his house and visited the room at first floor, but Rahul was not with him. It is admitted that Rahul engaged on 16/11/2013 with Preeti Sharma and FIR No. 690/13 State Vs. Rahul Sharma 35 of 85 his marriage was fixed on 20/11/2013 and he was at home during the period from 16/11/2013 to 20/11/2013.
7.16.1. During cross examination, it is admitted that he did not make any complaint against the IO that he had obtained his signatures on blank papers and has implicated his son in a false case. It is further admitted he disclosed this fact to the other persons who accompanied him to PS after 10 days of obtaining his signatures on blank papers. It is denied that accused led to the recovery of the knife and other articles during police custody from his house.
7.17. DW2 Rajiv Pandit has also corroborated that accused was surrendered before the police at Priya Marriage Home when the police took away his father to PS. It is further deposed that at the time of surrender of the accused, he was having one passbook, copy of PAN card and some other papers besides Rs. 600-700/- and he was taken away from there by an Alto Car to PS. He has also corroborated that on 24/11/2013, he went to PS along with the father of the accused but he remained outside and later on Adesh Sharma told him that his signatures were obtained on blank papers by the police. It is further deposed that one police official left behind at the house of the accused and he visited the first floor of the accused for 4-5 minutes with IO, but nothing was recovered from his house.
FIR No. 690/13 State Vs. Rahul Sharma 36 of 85 7.17.1. During cross examination, he was not aware about the identity of the police officials who visited Priya Marriage Home or to whom accused was handed over. It is further admitted that he did not enter into PS and even did not make any compliant against the police regarding showing the false arrest of the accused or illegal detention of the father of the accused. It is denied that he has deposed falsely at the instance of accused.
7.18. DW3 Smt. Komal Sharma is the Bua of the accused who has deposed that she came to the house of the accused on 14/11/2013 to attend his marriage and his engagement was pre fixed on 16/11/2013 and marriage was fixed on 20/11/2013. During this period, accused remained at his home to perform his customary rituals. However, police came to the house of the accused on 23/11/2013, but accused had gone to market but police took his brother to PS and thereafter accused was produced before police at Priya Marriage Home. On 24/11/2013, one inspector come to house along with her brother and remained there for 5-10 minutes but no search was conducted.
7.18.1. During cross examination, she has admitted that she never visited the house of second wife of the accused and also was not aware as to how many relatives had gone there. It is admitted that she used to visit market during her stay at the house of the accused.
FIR No. 690/13 State Vs. Rahul Sharma 37 of 85 It is further admitted that she had not made any complaint against the police that his brother was illegally detained by the police or her nephew has been falsely implicated in this case or no recovery was made from the house of the accused.
8. I have heard the arguments and perused the record. Perusal of the evidence led by the prosecution, it is revealed that this case is based upon the circumstantial evidence. As per the allegations of the prosecution, accused Rahul Sharma got married with Khushbu on 10/12/2012 and thereafter started residing in a tenanted premises belonging to PW2 Raj Kumar Giri with deceased. It is further alleged that on 19/11/2013, accused met his landlord outside the premises and informed that he was going to drop deceased Khushbu to the house of her sister at Aligarh and on asking about deceased, he informed that she had left the house some time ahead to him. Accused also locked the tenanted premises and was having a small bag. Thereafter, on 22/11/2013, landlord felt a strong foul smell emanating from the room in possession of accused and he tried to contact to the accused on his phone but it was switched off and thereafter he informed the police. Police opened the house and found a throat slit dead body of the deceased Khushbu.
9. Marriage between accused and deceased: The first fact which is material is and to be determined that deceased was the wife FIR No. 690/13 State Vs. Rahul Sharma 38 of 85 of the accused. in fact, marriage between accused and deceased is material to be proved. Marriage of the accused with deceased has been proved by the PW7 Ms. Shitlesh Dohare who has proved the marriage certificate and other record of the marriage of the deceased with the accused. Marriage between them was solemnized on 10/12/2012 in a temple and thereafter registered with UP Marriage Registrar Vth, Ghaziabad, UP under UP Hindu Marriage Registration Rules vide Serial Number 2850. The registration documents are Ex.PW7/1 (10 Pages) and marriage certificate is Ex.PW7/2 which bears the signatures of registrar Sh. Ramji Lal Yadav.
10. The document Ex.PW7/1 is containing the date of marriage, date of birth, addresses and photographs of both parties i.e. accused and deceased. Accused and deceased had also filed their High School Certificates to prove their date of birth. Prior to registration of marriage with registrar of marriage, both the parties also solemnized their marriage in Shiv Mandir of which photographs and certificate are also annexed with the application to the registrar. They also filed their joint affidavit of marriage and after registration of marriage, a certificate was issued which is also containing the photographs of both the parties.
11. After going through the marriage documents of the accused which are duly registered, it stands proved that the marriage was FIR No. 690/13 State Vs. Rahul Sharma 39 of 85 duly solemnized between the parties and also registered. Ld. counsel for the accused has argued that the accused never entered into any marriage with the deceased and it was the mischief of the parents of the deceased as they took the accused to the office of registrar to witness a document of the property and these marriage documents were got signed fraudulently in connivance with the advocate who prepared the documents and those documents have been converted into marriage documents of the deceased with accused, whereas accused was not aware about these documents. It is further argued that the even the pandit who allegedly performed the rituals of the marriage between the parties is habitual to manipulate such documents and such documents might have obtained from him without performing of such marriage. To prove this contention, Ld. Counsel for the accused has filed some documents that the concerned pandit has forged similar marriage documents.
12. This contention of the Ld. Counsel for the accused is not sustainable on two aspects. Firstly, this defense has not been taken by the accused during the examination of PWs especially PW7 that the marriage was not to registered or certificate is forged. Secondly, the marriage was registered with the registrar of marriages and there is a presumption of section 114 illustration (g) of Evidence Act that all the official acts are to be performed in a particular manner. The registration of marriage with the registrar of marriages has similar FIR No. 690/13 State Vs. Rahul Sharma 40 of 85 presumption and it shall be presumed that the marriage between the accused and deceased was duly solemnized registered according to the rules.
13. Besides it, PW9 Rahul, brother of deceased, has corroborated that in the year 2012, few days prior to Raksha Bandhan, his sister eloped with the accused and later on he came to know that on 10/12/12, deceased got married with the accused. Deceased contacted him after 10-11 months of her marriage through telephone. She started residing in a tenanted premises and he also visited her tenanted premises to meet her and also met the accused there.
14. Further, PW2 has also corroborated to PW9 that he let out the premises to accused through one Umesh and accused along with deceased started residing in the tenanted premises bearing House Number B-13/1B, Gali Number 3, Ambika Vihar, Delhi, comprising of one room and kitchen. He has also identified the accused to be his tenant who used to reside in his premises and also used to purchase grocery from his shop and had been regularly paying rent upto August 2013 and thereafter defaulted. It is further deposed that on 20/10/2013, he again requested to accused to pay the rent amount and also to clear the dues of the grocery shop but accused informed him that he had become jobless and would clear dues very soon. It FIR No. 690/13 State Vs. Rahul Sharma 41 of 85 is further deposed that he asked Khushbu to pay his dues. Thereafter, on 22/11/2013, he noticed a foul smell in his tenanted premises and informed the police. He has identified the scene of crime through the photographs of the spot of incident which are Mark PW2/A1 to A48. He has also admitted that his statement u/s 164 Cr.P.C. in which all such facts were retreated by him. He also handed over the articles of the deceased and accused lying in the tenanted premises to the family members of the deceased.
15. By the testimonies of the PW2, PW7 and PW9, it has been duly proved that the deceased got married with the accused and had been residing separately with him in the tenanted premise.
16. Second Marriage of the Accused after Death of Deceased:
The fact which is also very relevant to this case is the second marriage of the accused and also a connected fact to motive of the accused to commit offence. Accused solemnized his second marriage with Preeti Sharma on 20/11/2013. PW12 has proved a marriage invitation card of marriage between the accused Rahul and Preeti Sharma which is Ex.PW12/6 and was seized from the house of the accused at his instance vide seizure memo Ex.PW12/7 alongwith other articles. One suggestion was also put to him which has been denied by him that the marriage invitation card was produced by the father of the accused before IO at PS. This suggest FIR No. 690/13 State Vs. Rahul Sharma 42 of 85 has also proved that marriage invitation card was seized. Pw14 has also disclosed that during investigation, accused disclosed that he committed the murder of his wife Khushbu as he wanted to get remarried with Preeti Sharma and solemnized second marriage on 20/11/2013. This information led to the recovery of the invitation card of the marriage of accused with Preeti Sharma. One Photograph Ex.PW14/H was also shown to the witness which has been identified that the photograph is depicting the accused Rahul with his second wife Preeti Singh and the was produced by the father of the accused during investigation. PW14 had also interrogated the second wife of the accused but no clue could come forward to support the prosecution due to she was not cited as witness to this case.
17. Similarly, DW1 has also corroborated that on 16/11/2013, engagement of his son Rahul was pre-decided with Preeti Sharma and the date of his marriage was fixed on 20/11/2013 and accused performed all the ceremonies and rituals of his marriage. Dw3 has also corroborated that on 20/11/2013, they went to Bulandshar for the marriage of the accused and returned on next day in morning after marriage and accused performed all post marriage customs on 21/11/2013.
18. By the testimonies of above said PWs and DWs, it stands proved that the accused engaged into second marriage with another FIR No. 690/13 State Vs. Rahul Sharma 43 of 85 lady namely Preeti Sharma on 20/11/13 i.e. soon after the death of his first wife, whereas he was already married with the deceased. Accused has not offered any explanation as to why he solemnized this second marriage despite getting married with the deceased Khushbu. In such circumstances, it shall be presumed that he deliberately got married with Preeti Sharma thereby leaving behind the deceased in the tenanted premises. As such, second marriage performed by the accused despite existence of his first marriage.
19. Now, it is to be seen as to whether accused is guilty for committing the murder of his deceased wife or not. The accused is the natural suspect in this case being the last person seen in the company of the deceased and also of the reason that he solemnized second marriage soon after the the incident. The Hon'ble Supreme Court of India has held in Sooguru Subrahmanyam v. State of UP IV (2013) SLT 428 that once it is held that the death was homicidal and the injuries were not the result of any violent sexual intercourse, the circumstances are to be scrutinized to see the complicity of the accused/ husband in the crime. From this angle also accused is main suspect of the crime and his involvement it to be determined first in comparison of the others.
20. Nature of Death- Homicidal or Suicidal: To see the involvement of the accused in this case being husband, it is to be FIR No. 690/13 State Vs. Rahul Sharma 44 of 85 seen as to whether the death of the deceased is homicidal or suicidal or result of any violent sexual intercourse. The testimony of PW5 Dr. Neha Gupta is relevant to prove this fact. She conducted the post mortem on the dead body of the deceased and observed the following injuries on the body of the deceased as under:
External Anti-Mortem Injuries:-
1. Incised cut throat wound of size 11x0.5x4.5 cm present horizontally over anterior aspect of neck, 6.5 cm below chin, 3 cm below left angle of mandible and 2.5 cm below right angle of mandible. The wound is superficial on left side end cutting only the skin and subcutaneous tissue exposing underline sternocledomastoid muscle, rest of the part of the wound goes cutting the skin subcutaneous tissue muscle of the neck soft tissue, trachea thyroid gland, thyroid cartilage, esophagus and carotid sheath structures on right side including carotid artery and internal jugular vein. The margins of the wound show multiple skin tags.
Cause of death hemorrhagic shock as a result of ante-mortem cut throat injury to neck and associated blood vessels produced by sharp edged weapon. Injury No-1 was sufficient to cause death in ordinary course of nature.
FIR No. 690/13 State Vs. Rahul Sharma 45 of 85
21. After going through the post mortem report of the deceased, it is clear that the death of the deceased was homicidal and sketch Ex.PW5/2 was the possible weapon of offence which was might have used during the incident and chhurri recovered at the instance of the accused from his residence in pursuance of disclosure statement has been found connected to the wound by subsequent opinion Ex.PW5/3.
22. PW1 and PW3 had observed that the scene of crime reflected that there were sign of struggle in the room and broken bangles were also recovered from there. These testimonies of PWs have duly proved that some struggle might have taken place between the assailant and deceased as the deceased was young lady of aged about 20 years and must have resisted to the attempt of accused and the broken bangles is the example of the same. Even blood stains found on various articles in the room have also proved that the injured must have tried to save herself. All such facts have proved that the death of the deceased was homicidal.
23. Reliability of the Testimony of PW2: This case is based upon the last seen and last togetherness of the accused with the deceased. PW2 Raj Kumar Giri is the main witness to prove this fact but he has retracted his statements given to the police as well as Ld.MM. In his initial statement u/s 161 Cr.P.C. and thereafter in a FIR No. 690/13 State Vs. Rahul Sharma 46 of 85 statement u/s 164 Cr.P.C., he retreated his earlier statement that he saw the accused lastly on 19/11/2013 outside of his tenanted premises and he was going with a small bag. On asking by him, accused disclosed that he was going to drop his wife Khusbhu to the house of her sister at Aligarh and she had left sometime ahead to him. Thereafter, on 22/11/2013, he went upstairs and noticed a foul play emanating from the room of the accused and he immediately contacted the accused but his phone was initially engaged but later on got switched off and thereafter he informed the police. However, before this court, PW2 has changed his version that he ever met the accused outside of his house with any small bag or that the accused informed him that he asked the accused about the deceased Khushbu or that accused informed him that she had already left sometime ahead to him. As such, it is to be determined that the testimony of the PW2 is reliable or not.
24. PW2 had deposed to the police during his statement u/s 161 Cr.P.C. that accused was seen by him outside the premises along with a small bag and disclosed that he was going to leave the deceased to the house of her sister and she had already left house. The similar allegation was retreated during his statement u/s 164 Cr.P.C., but he has retracted his statement before the court that he disclosed this fact under the pressure of the police which threatened him to implicate in this case. As such, it is to be seen as to whether FIR No. 690/13 State Vs. Rahul Sharma 47 of 85 PW2 has deposed before this court falsely or before the police as well as before the Ld. MM, who recorded his statement u/s 164 Cr. P.C.
25. PW15 Sh. Jitendra Singh the Ld. MM recorded the statement of the PW2 and has proved this fact before this court. He has appended his certificate of correctness Ex.PW15/C regarding the correctness of the statement u/s 164 Cr. P.C. made by the PW2. This certificate has not been challenged by accused thereby putting cross examination of the witness. Even PW2 has also admitted before this court during reply to the court questions that he did not disclose to the Ld. MM during questioning by Ld. MM regarding voluntariness to make his statement and he did not disclose that he was deposing under any pressure or coercion. As such, he made his statement without any pressure or coercion and without disclosure that he was under pressure of the police or the police provided any written statement to him to depose before the Ld. MM. In fact, PW2 had every opportunity to disclose this fact before the Ld. MM that police were putting pressure upon him to make a false statement but he failed to disclose this fact and it shall be presumed that the made a correct statement and now has retracted before this court just to give the benefit to the accused.
FIR No. 690/13 State Vs. Rahul Sharma 48 of 85
26. PW2 was extensively examined by the court by the way of court questions and has admitted that he was asked by the Ld. MM that he was not under threat or coercion to make that statement. He has admitted that he had disclosed to the Ld. MM that accused had a quarrel with the deceased on 17/11/2013 or that on 18/11/2013, Rahul along with his wife left the house to drop her to the house of the sister of deceased at Aligarh but returned back on the pretext that their train had missed. On further questioning about leaving the house by the accused Rahul on 19/11/2013 with one small bag, witness avoided direct gazing of the court, gulped hard, shifted his gaze repeatedly and tried to avoid answer and mumbled that he might have stated so but did not remember. This conduct of the witness has proved that he has falsely retracted of his statement before this court, whereas he was well aware about this fact that the accused had left his house with a small bag and misled him deliberately that deceased had already left the house ahead to him. In fact, he saw the accused when he left finally after locking the room.
27. PW2 has not only concealed the truth before this court but also retracted from his statement during cross examination by the Ld. APP for state and has deposed that accused and deceased were living together happily and he never seen them fighting, whereas on confrontation to the previous statement u/s 161 Cr.P.C., FIR No. 690/13 State Vs. Rahul Sharma 49 of 85 it was found recorded. He has also denied that he saw the accused while leaving the house along-with small bag or he asked about the deceased or that accused replied that she had already left sometime ahead to him. However, it is admitted that he made a call to the accused when he felt a foul smell in his room, but his phone was switched off. He found a lot of blood inside the room and some broken pieces of bangle inside the room on bed and floor.
28. PW2 has again tried to twist his testimony during cross examination by accused that on 15/11/2013 he saw some boys visiting the deceased and informed that they were her cousins and came to meet her. It is further deposed that he heard their voices till 9:00-10:00pm and thereafter he went to sleep. He did not lock his door main gate but it was found in same condition on next day and thereafter he did not hear the voice of anyone. He has deposed that the police pressurized him to make such statement before the Ld.MM and disclosed the statement as to what was to be deposed. It is admitted that he saw the accused Rahul on 20/11/2013 and thereafter on 23/11/2013. As such, the testimony of PW2 shows that he has been shaking his testimony deliberately and has deposed the false facts.
29. In fact, in view of the conduct of the PW2, it stands proved that the deposition of the PW2 that on 17/11/2013, Rahul and Khushbu FIR No. 690/13 State Vs. Rahul Sharma 50 of 85 had some altercation as deceased wanted to visit her sister's house and accused was opposing and on 18/11/2013 at 6:00 am, Rahul left his house along with deceased Khushbu to drop her at the house of her sister at Aligarh, but at 9.00 am, came back and again left the tenanted premises on 19/11/2013 and informed that he was going to drop Khushbu at the house of her sister, but Khushbu was not with him is correct. It is also correct that he asked the about the deceased Khushbu and he replied that she had already left some distance ahead to him. Thereafter, on 22/11/2013, he went to first floor to pick clothes and saw that flies were cheeping/ hovering at the door of the room of the accused and a strong foul smell was emanating. He tried to call accused on his phone but it was busy and thereafter it got switched off is correct deposition. PW2 has also corroborated the other police witnesses that on 22/11/2013 at about 6:30 am, he made a call to the police and police removed the latch of the room along with lock and on opening the room, a highly decomposed dead body infested by the maggots was found stuffed into a plastic sack and further put into a red and black bag lying in the room which was identified by him.
30. During the course of argument, Ld. Counsel for the accused has argued that the testimony of the PW2 is not reliable as he has been changing his testimony frequently and even made his statement before the Ld. MM under the pressure of the police and it FIR No. 690/13 State Vs. Rahul Sharma 51 of 85 vitiate the entire statement or that accused cannot be convicted on the basis of such statement. It is argued that the statement of the PW2 is liable to be discarded in entirety and there is no other witness who has deposed that accused was lastly seen in the company of the accused or together with her.
31. On the other hand, Ld. APP for the state has strongly opposed the arguments of the Ld. Counsel for the accused and has submitted that the testimony of the PW2 cannot be discarded merely because he has retracted of his statement to some extant before this court, whereas his statement u/s 164 Cr.P.C. has been duly proved before this court by the PW2 him as well as PW15 and the statement of the PW2 has been duly proved. This statement has proved that accused was the last person who resided with the deceased and deceased was seen alive lastly in the company of the accused and accused has to prove that she was alive when he left her in the tenanted premises lastly.
32. The arguments of the Ld. Counsel for the accused have no substance. I have already observed that the PW2 has changed his testimony deliberately just to give the benefit to the accused and his statement u/s 164 Cr.P.C. has been duly proved by the PW15. Even it is assumed for the sake of arguments that the testimony of the PW2 is not fully supporting prosecution, even then PW2 has partly FIR No. 690/13 State Vs. Rahul Sharma 52 of 85 supported the prosecution and remaining is found improvised in favor of the accused. But, the arguments of the Ld. Counsel for the accused have no force that the evidence is liable to be discarded in entirety. In fact, the principle 'False in uno falsus in omnibus' (false in one thing, false in everything) is not a mandatory rule of evidence in India and it is merely a rule of caution as held by the Hon'ble Supreme Court of India in Ram Udgar Singh v. State of Bihar (2004) 10 SCC 443 thereby relying upon State of Punjab v. Jagir Singh (1974) 3 SCC 277 and Lehna v. State of Haryana (2002) 3SCC 76. Where it is held that even if a major portion of evidence is found to be deficient, in case the residue is sufficient to prove the guilt of the accused, notwithstanding the acquittal of a number of other accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that the evidence has been found to be deficient to prove the guilty of the other accused persons. Falsity of a particular material witness or a material particular would not ruin it from the beginning to end.
33. After applying this rule of evidence, it is clear that the entire testimony of the PW2 cannot be discarded merely because he has not supported the prosecution in toto. The Hon'ble Supreme Court of India has divided the reliability of witnesses in three categories as FIR No. 690/13 State Vs. Rahul Sharma 53 of 85 held in Vadivelu Thevar v. State of Madras AIR 1957 SC 614 as under:
1. Wholly reliable.
2. Wholly unreliable. and
3. Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way, it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses.
34. In view of the abovesaid law, though PW2 has diverted to his testimony u/s 161 Cr.PC as well as section 164 Cr.P.C., yet his testimony has proved the material facts of the case and cannot be discarded merely on the ground that he has some discrepancy in his statement or he has changed her version deliberately. As such, testimony of PW2 has duly proved the facts that the deceased and FIR No. 690/13 State Vs. Rahul Sharma 54 of 85 accused were his tenant and they used to have quarrel and on 19/11/2013 accused left the house along with a small bag after disclosing that he was going to drop the deceased to the house of her sister and deliberately misled him that she had already left sometime ahead to him. In fact, accused was the last person who had been living in his matrimonial home with the deceased when she was alive and thereafter none had entered into the tenanted premises which was locked from outside. The testimony of the PW2 is the category of the first one and even further has been corroborated from the circumstances and recoveries made at the instance of the accused and also by the other PWs including police witnesses and also corroborated PW14 who has deposed that the accused had disclosed during investigation that he committed the murder of his wife as he wanted to get married with Preeti Sharma and nothing against it has been put to the IO by the accused. As such, prosecution has duly proved that the accused was the last person in the company of the deceased and it is the accused that has to prove as to how she was killed.
35. Facts within the Exclusive Knowledge of the Accused and Presumption of Section 106 of Indian Evidence Act - Accused had been regularly residing with the deceased as per the testimony of PW2 till 19/11/2013 when he left the tenanted premises along with a small bag and thereafter the dead body of the deceased was FIR No. 690/13 State Vs. Rahul Sharma 55 of 85 recovered by the police from the tenanted premises. In fact, accused was the last person who resided with the deceased as husband and wife and dead body of the deceased found in the matrimonial home of the deceased, in such condition, accused was supposed to explain as to what had happened to the deceased and this fact was within the personal knowledge of the accused and the presumption of section 106 of Indian Evidence Act would come into play. The Hon'ble Supreme Court of India had occasion to deal with the presumption of section 106 of Indian Evidence Act in State of Rajasthan v. Thakur Singh VI (2014) SLT 260 and has held that where death of wife was unnatural and witnesses turned hostile. The burden of proof was fixed upon the accused to explain the death of his wife took place within the four corner of the house. The interpretation of the section 106 was given thereby relying upon the various judgments as under;
[Section106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without ticket.
The burden of proving that he had a ticket on him.] FIR No. 690/13 State Vs. Rahul Sharma 56 of 85 This section provides, inter alia, that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him.
36. The Hon'ble Supreme Court of India has further elaborated in Shambhu Nath Mehra v. State of Ajmer, 1956 SCR 199 while giving the interpretation of section 106 of the Indian Evidence Act and held that the section is not intended to shift the burden of proof (in respect of a crime) on the accused but to take care of a situation where a fact is known only to the accused and it is well high impossible or extremely difficult for the prosecution to that fact. It was observed:
"This [section 101] lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve if of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The work "especially" stressed that. It means facts that are pre-eminently or exceptionally within his knowledge. It the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder FIR No. 690/13 State Vs. Rahul Sharma 57 of 85 because who could know better than that he whether he did or did not."
37. It is further held in Trimukh Maroti Kikran v. State of Maharashtra, (2006) 10 SCC 681 that when the wife is injured in the dwelling home where the husband ordinarily resides, and the husband offers no explanation for the injuries to his wife, then the circumstances would indicate that the husband is responsible for the injuries. It is further held: "Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."
38. Further, it was observed in Jagdish v. State of Madhya Pradesh, (2009) 9 SCC 495 that "it bears repetition that the appellant and the deceased family members were the only occupants of the room and it was therefore incumbent on the appellant to have tendered some explanation in order to avoid any suspicion as to his guilt." Case titled State of West Bengal v. Mir FIR No. 690/13 State Vs. Rahul Sharma 58 of 85 Mohammad Omar, (2000) 8 SCC 282 contains an example of explanation the principle behind section 106 of the Evidence Act in the following words:"During arguments we put a question to learned senior counsel for the respondents based on a hypothetical illustration. If a boy is kidnapped from the lawful custody of his guardian in the sight of his people and the kidnappers disappeared with the prey, what would be the normal inference if the mangled dead body of the boy is recovered within a couple of hours from elsewhere. The query was made whether upon proof of the above facts an inference could be drawn that the kidnappers would have killed the boy. Learned Senior Counsel finally conceded that in such a case the inference is reasonably certain that the boy was killed by the kidnappers unless they explain otherwise." After relying upon the above said judgments, the Honble Apex Court observed that there is no evidence that anybody else had entered their room or could have entered their room and in the absence of any explanation by the accused, he was convicted for the murder of his wife.
39. In the present case also, the testimony of the PW2 has found reliable and has been proved beyond doubt that the accused was the last person who was with the deceased and was also the last person who locked the house and left the tenanted premises in his presence and also misled him that he was going to drop the deceased to the house of her sister at Aligarh and she had already FIR No. 690/13 State Vs. Rahul Sharma 59 of 85 left house prior to him. The key of the door lock was found in possession of the accused and recovered from the house of the accused in pursuance of his disclosure statement which is Ex.PW13/3. The disclosure statement has contained the place of recovery of the key and knife/ chhurri was recovered from the possession of the accused from his house. The knife is also connected to the injury sustained by the deceased and the subsequent opinion of the doctor who conducted post mortem has also connected the knife to the injury sustained by the deceased and injury was possible by that weapon/ knife and even blood stains of the deceased were corroborated by the FSL report and it proved the use of knife during incident.
40. The accused was to explain as to how the seized articles were found in his possible and how the blood of the deceased came on the knife recovered from his possession, but he has failed to tender any explanation to this recovery which is material evidence against him and is admissible u/s 27 of Evidence Act. Even no explanation has been tendered by the accused as to why he solemnized second marriage soon after the death of the deceased, who was her wife and, PW7 has proved the marriage certificate which was also recovered at the instance of the accused form his house. The death of the deceased was homicidal and Pw5 has proved by her testimony. As such, accused was required to prove that the FIR No. 690/13 State Vs. Rahul Sharma 60 of 85 deceased was alive when he left his tenanted premises and thereafter he never visited the tenanted house and during this period someone had opportunity to enter into the house and to commit the offence, but no such incident has been proved as the house was locked from outside and key of the house was with him and none other than him opened that door since leaving the premises by him as deposed by the PW2. As such, accused has failed to prove the facts within his personal knowledge regarding survival of the deceased as well as death and has failed to tender any plausible explanation to the death of his wife and presumption u/s 106 of Evidence Act could not be rebutted.
41. Time of Death of the Deceased and Ocular Evidence: Time of death of the deceased is also material to connect the accused to the crime as accused has disputed it. PW5 conducted the postmortem on the dead body on 25/11/2013 and observed as under:
General Observations:-
The dead body of adult female was highly decomposed. Rigor mortis passed off. Post mortem staining cannot be seen due to decomposition. Postmortem peeling of skin present all over the body with gloves and stocking type of peeling of skin present. Marbelling present all over. Scalp hair lose and lying by side of the scalp. Greenish black discoloration present over all the body. Teeth loose.
FIR No. 690/13 State Vs. Rahul Sharma 61 of 85
Frenulum intect.
External Anti-Mortem Injuries:-
1. Incised cut throat wound of size 11x0.5x4.5 cm present horizontally over anterior aspect of neck, 6.5 cm below chin, 3 cm below left angle of mandible and 2.5 cm below right angle of mandible. The wound is superficial on left side end cutting only the skin and subcutaneous tissue exposing underline sternocledomastoid muscle, rest of the part of the wound goes cutting the skin subcutaneous tissue muscle of the neck soft tissue, trachea thyroid gland, thyroid cartilage, esophagus and carotid sheath structures on right side including carotid artery and internal jugular vein. The margins of the wound show multiple skin tags.
Time since death was about one week. Cause of death hemorrhagic shock as a result of ante-mortem cut throat injury to neck and associated blood vessels produced by sharp edged weapon. Injury No-1 was sufficient to cause death in ordinary course of nature.
42. From the postmortem report of the deceased, it is clear that the death of the deceased was homicidal and took place one week prior to the date of postmortem. However, Ld. counsel for the accused has argued that the time of death was since one week but FIR No. 690/13 State Vs. Rahul Sharma 62 of 85 as per the evidence of the PW2, accused was lastly seen by him at his house on 19/11/2013 and dead body was found on 22/11/2013 and postmortem was conducted on 25/11/2013 and, from this calculation, deceased had already expired much prior to 19/11/2013, whereas PW2 saw her alive on 18/11/2013 which suggests that either the testimony of the PW2 is incorrect or postmortem report. But, the submissions of the Ld. Counsel for the accused have no force. The testimonies of the PW1, PW3, PW4, PW6, PW11 and PW14 have proved that the dead body was packed in a plastic bag and further dumped into a cotton bag and was put in a closed room which suggests that in such condition, the decomposition of body may set early and expeditiously in comparison to the normal conditions. Even the PW5 has admitted that the opinion given by her was in approximation and time since death could be plus or minus one day, but it is denied that due to decomposition the face of the body had been disfigured to the extent that it would had not been recognizable to the people who had known the deceased. It is further denied that the loosening of teeth could not have set in with the period of 10 days. It is further admitted that the difference between her estimation of time since death cannot be plus or minus three days. In fact, a doctor can give the time of death only in approximation and not precisely. Similar proposition has held in Baso Prasad v. State of Bihar (2006) 13 SCC 65 that the exact time of death cannot be established scientifically and precisely.
FIR No. 690/13 State Vs. Rahul Sharma 63 of 85
43. In fact, the testimony of PW5 has duly proved the time of death of the deceased since one week of PM in corroboration of the prosecution witnesses. As per the testimony of PW2, the deceased and accused were seen together on 18/11/2013 when they left to the house of the sister of the deceased at Aligarh, but they returned back and accused informed him that they got late and train had departed. In the same night, incident must have occurred as in the morning on 19/11/2013, accused left the house with small bag and dead body was detected on 22/11/2013 and it was preserved in the mortuary and postmortem was conducted on the dead body on 25/11/2013. By applying the parameters of time of death one day minus or one day plus as deposed by PW5, the time of death comes to 6 - 7 days prior to the date of postmortem and the observation of the PW5 is correct that the time of death of the deceased must be on intervening night on 18-19/11/2013.
44. Even otherwise the Hon'ble Supreme Court of India has held in Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484 that ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defense can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Unless, however the medical evidence FIR No. 690/13 State Vs. Rahul Sharma 64 of 85 in its turn goes so far that it completely rules out all possibilities whosoever of injuries: taking place in the manner alleged by eye witnesses, the testimony of eye witnesses cannot be thrown out on the ground of alleged in consistency between it and the medical evidence. As such, the testimony of PW2 has duly corroborated that he saw the accused on 19/11/2013 when he left the house after locking the door of his tenanted premises and he had already committed the murder of the deceased during night due to he told a lie about the deceased that he had already left the house prior to him and PW5 has corroborated the time and manner of murder of the deceased. As such, the time of death of deceased even in approximation has also corroborated that the deceased was killed by the accused.
45. Recovery at the instance of Accused: Another material circumstance against the accused is the recovery key of the lock removed from the door of the tenanted premises along with latch besides the chhurri, marriage certificate and marriage card. The lock of the latch was opened by the key recovered at the instance of the accused from his house and the same was applied to the lock in the presence of the PW13, the then Ld. CMM and it was opened by the said key. PW13 has also corroborated this fact by his testimony as well as documents Ex.PW13/1 to Ex.PW13/3. This recovery of key and opening of the lock by the same key has proved that the FIR No. 690/13 State Vs. Rahul Sharma 65 of 85 tenanted premises was locked by the accused after committing the murder of the deceased. PW2 witnessed the removal of the lock with latch from his tenanted room by the crime team in the presence of the PW1, PW3 and PW11. This fact suggests that no other person except the accused entered into the house of the tenanted premises and was the last person who resided in the tenanted premises with the deceased when she was alive in the intervening night on 18-19/11/2013.
46. Ld. Counsel for the accused has argued that the recovery is planted on the ground that the recoveries ought to be made on the same day of arrest of the accused as there was sufficient time to make those recoveries soon after the arrest which was allegedly carried out on 24/11/2013 between 4:40 pm to 5:30 pm and no explanation has been tendered by the IO as to why recoveries were made next day and it shall be presumed that the recoveries are planted. In support of his arguments, Ld. Counsel for the accused has relied upon 1995 CRI. L.J. 248 titled Niranjan Lal v. State of Haryana (P&H). Even the recoveries have been termed defective on the ground that the same were made in the absence of the public witnesses despite their availability and also in the absence of two respectable witnesses of locality and it is fatal to this case. In support of his arguments, Ld. Counsel has further relied upon 1996 CRI.L.J. 265 titled Satish Kumar v. State (Delhi), 1989 CRI.L.J. 1585 titled FIR No. 690/13 State Vs. Rahul Sharma 66 of 85 State of M.P. v. Ram Prakesh and Ors, 1987 CRI.L.J. 1539 titled Smt. Prem Lata v. State of Himachal Pradesh and 2002 CRI.L.J. 4821 titled Faujdari Mistry and Ors v. State of Bihar. Arrest of the accused has also been challenged for the want of independent witnesses and also in view of the testimonies of defense witnesses who have been stated to be the persons who handed over the accused to the SHO in the presence of Pw12 at Priya marriage Home at village Behta, Ghaziabad, UP. It is argued that the accused has been falsely implicated in this case and even the passbook and PAN card were seized from the accused when he was arrested but these documents have been planted later on as found from the scene of crime.
47. On the other hand, Ld. APP for the State has contradicted the arguments of the Ld. Counsel for the accused and has argued that merely delay in recovery of articles after disclosure statement of the accused after arrest cannot discard the recovery and recovery of articles has been duly proved and even IO has tendered an explanation for delayed recovery.
48. The arguments of the Ld. Counsel for the accused have no substance on many grounds. PW12 witnessed the arrest of the accused from Karawal Nagar Chowk at the instance of secret information by PW14 at about 4:30 pm vide arrest memo Ex.PW12/1 FIR No. 690/13 State Vs. Rahul Sharma 67 of 85 and personal search Ex.PW12/2. Accused had also made disclosure statement Ex.PW12/3 and disclosed to get recovered the chhurri, key of lock and also of his marriage documents with the deceased as well as invitation card of his second marriage with Preeti Sharma. PW14 has also corroborated the testimony of PW12 that the accused was arrested from Karawal Nagar Chowk. Though the testimonies of PW12 and PW14 have some contradictions regarding the timings of arrest of the accused as PW12 has deposed that the accused was arrested at about 4:30 pm when he was coming from Bhajan Pura side, whereas PW14 has deposed that accused was arrested at about 5:30 pm when he was coming from the side of Khajoori and was going towards DTC depot. However, these are minor contradictions and are not going into the core issues that accused was not arrested. Rather they have proved that the accused was arrested in the same manner.
49. Accused made his disclosure statement soon after his arrest i.e. on 23/11/2013, but recoveries of the articles including the weapon of offence were made on 24/11/2013 when accused led to the recovery of a black bag put into box of bed in a room at first floor of his house. Accused took out a chhurri from that bag, one key, copy of marriage certificate and marriage invitation card which were seized vide seizure memo Ex.PW12/4 and Ex.PW12/5. Invitation card of second marriage of accused which is Ex.PW12/6 was also FIR No. 690/13 State Vs. Rahul Sharma 68 of 85 seized vide memo Ex.PW12/7. The site plan of spot of recovery is Ex.PW12/8. PW12 and PW14 have identified the chhurri as Ex.P15 after disclosing the description of the chhurri and key as Ex.P17, marriage certificate already Ex.PW7/1 (Colly.) and invitation card is Ex.PW12/6. PW14 has explained during his examination that there was a rally of congress party in the area due to he was busy in arrangement and recovery got late. It is definitely a valid reason for delayed recovery as the preparation of the rally was to be made at least one day in advance and it was a law and order situation which was also to be maintained by the IO. In such condition, recoveries cannot be termed defective.
50. Further, the arguments of Ld. Counsel for the accused have not substance that the recovery is defective being made in the absence of the public witnesses or the recovery made in the presence of police officials cannot be relied upon. It has been held in Ajmer Singh v. State of Haryana (2010) 3 SCC 747, Ram Swaroop Singh v. State (Govt. Of NCT of Delhi) (2013) 14 SCC 235 and Karamjeet Singh v. State AIR 2003 SC 35 that the police witnesses are competent witnesses and are at par to the other witnesses and their testimonies cannot be discarded merely being them to be the police witnesses. As such, the non-joining of the public witnesses is not fatal to the recoveries. Even the delay in the recovery is also not fatal to the recoveries in view of Amarjeet Singh FIR No. 690/13 State Vs. Rahul Sharma 69 of 85 v. State of Punjab 1995 SUPP.(3) SCC 217 and Gurjinder Singh v. State of Punjab (2011) 2 SCC 530 in which it has been held that the delay in recovery is not fatal and even recovery made by police officials in the absence of public witness from an open place within personal knowledge of the accused is not fatal.
51. Authenticity of Recovery made in the absence of Public Witnesses: Further, the arguments of the Ld. Counsel for the accused that the search and recovery of articles in the absence of two respectable persons of locality renders the recovery defective is also not sustainable in view of Balbir Singh v. State (1996) 11 SCC 139, Akmal Ahmad v. State of Delhi (1999) 3 SCC 337, Musheer Khan v. Sate of MP (2010) 2 SCC 748 and State of Punjab v. Balbir Singh (1994) 3 SCC 299 that the non compliance of section 100(4) of Cr. P.C. is not fatal if recovery is otherwise not doubtful. Even the non compliance of section 157 Cr.P.C. is also not fatal in view of State of MP v. Man Singh & Ors, (2003) 10 SCC 417. As such, all the defenses raised by the accused are not sustainable.
52. Contrary to it, PW12 and PW14 have deposed and proved that accused led them to the recovery of chhuri used in the crime and also the key of the lock which were recovered from a box put inside the room at first floor of the house of the accused at village Behta Hazipur, Ghaziabad, U.P. Accused has also confronted the IO with a FIR No. 690/13 State Vs. Rahul Sharma 70 of 85 photograph during cross examination and put that the stairs shown in the photographs is not shown in the site plan of place of recovery which is Ex.Pw12/8 due to site plan is defective, however, it is no where objected that the room at first floor was not situated or it was not having the box bed inside. Though IO was required to seize the bag from which the articles were recovered, yet it is not going to affect the credibility of the recovery. As such, recovery of the key and weapon of offence is not defective for the want of public witnesses or non complicate of section 100(4) of Cr.P.C. The recovery of key and chhurri in pursuance of the information leading to discovery and recovery of the articles is very well admissible u/s 27 of the Evidence Act.
53. Similarly, the chhurri was recovered at the instance of accused by the PW14 in the presence of PW12 and the same was containing the blood stains as deposed by PW12 and PW14 and the FSL reports of the serological department which are Ex.PW14/N2 and Ex.PW14/N3 have also duly proved that the chhurri found having the blood group of the deceased. The subsequent opinion of the PM doctor furnished on 04/02/2014 which is Ex.PW5/3 has also proved that the injury no. 1 in the PM report Ex.PW5/1 was possible by this knife. Even the chhurri Ex.P15 is also similar to the sketch of weapon Ex.PW5/2 prepared by postmortem doctor which has also connected the weapon of offence to the offence for which accused FIR No. 690/13 State Vs. Rahul Sharma 71 of 85 has been charged. No contradiction has come into the cross examination of the PW5 in favor of the accused to support his defense.
54. The testimonies of PW8 and PW12 have duly proved that the seized exhibits were sent to FSL for examination without tempering during their possession. Even it is not the case of the accused also. PW8 and PW12 have duly proved the documents Ex.PW8/4 to Ex.PW8/6 to prove the seizure and deposits of exhibits and dispatch to FSL as well as Forensic Department of GTB Hospital and receipt of FSL result and subsequent opinion without any tempering. The articles were seized and sealed at the spot itself as proved by PW1, PW12 and PW14 and accused has not disputed and pointed out any such discrepancy in the recovery of the articles to render it defective. The judgments relied upon by the Ld. Counsel for the accused are not applicable in this case.
55. Motive to Commit Offence: Motive of the crime is not necessarily to be proved by the prosecution when the direct or circumstantial evidence has proved beyond doubt that the accused is the culprit of the offence as held in Gajraj Singh v. State the Hon'ble High Court of Delhi thereby relying upon Mulakh Raj v. Satish & Ors, 1992 Cri. L.J. 1529 (SC) that motive is immaterial when there is clear evidence or circumstances against the accused.
FIR No. 690/13 State Vs. Rahul Sharma 72 of 85 It is observed that "it is true as contended for the appellant that the evidence on record is not sufficient to arrive at an immediate motive to commit the crime and the case depends on circumstantial evidence. But in circumstantial evidence also when the facts are clear it is immaterial that no motive has been proved. Men do no act wholly without motive. Failure to discover the motive of the offence does not signify the non-existence of the crime. The failure to discover motive by appropriate clinching evidence may be a weakness in the proof of the prosecution case, but it is not necessarily fatal as a matter of law. Proof of motive is never an indispensable factor of conviction. In Alley v. State of UP, MANU/SC/0102/1955 this court held that where there is clear evidence that the person has committed the offence, it is immaterial where no motive for commission of the crime has been shown. Therefore, even in the case of circumstantial evidence, absence of motive which may be one of the strongest links to connect the chain would not necessarily become fatal provided the other circumstances would complete the chain and connect the accused with the commission of the offence, leaving no room for reasonable doubt, even from the proved circumstances...
56. However, in this case, the motive of accused to commit murder of the deceased has been duly proved by prosecution that accused wanted to get second marriage with Preeti Singh due to he FIR No. 690/13 State Vs. Rahul Sharma 73 of 85 murdered his first wife. Even this fact has been duly proved and corroborated by recovery of the invitation card of the accused in pursuance of his disclosure statement which is admissible u/s 27 of the Evidence Act. Even disclosure statement of the accused disclosing this information has duly corroborated by the testimonies of the DWs that he engaged much prior to the death of the deceased on 16/11/2013 itself and got married immediately on next day of his marriage and this conduct of the accused is also relevant u/s 8 of the Evidence Act and also constituted a motive to commit the crime.
57. Further, it has come on record during the testimonies of DW1 and DW3 that the engagement ceremony of the accused held on 16/11/2013 and it was much prior to the death of the deceased and accused got engaged without disclosure of his first marriage with the deceased and even got married second time without hesitation after committing the murder of the deceased. All such facts have duly proved the motive of the accused to commit the offence and it was just to get married again. PW14 has also corroborated that during investigation it was revealed that the motive of the accused to commit the murder was his second marriage.
58. Conduct of the Accused during Statement of Accused and Subsequent to the Incident: Further, the conduct of the accused during state of accused and reply to the incriminating evidence is FIR No. 690/13 State Vs. Rahul Sharma 74 of 85 also relevant. Accused has been remained in denial mode of everything. He has replied to everything either "I DO NOT KNOW" or "IT IS INCORRECT". He has denied to get married with the deceased and even alleged that the mother of the deceased asked him to accompany to the Registrar of marriage to execute a sale deed and forged the marriage document. However, he has not tendered any other explanation about those documents got forged specifically except filing of some documents pertaining to the pandit which are also not relevant. The explanation of the accused was not found correct. He simply denied his stay with the deceased in a tenanted premises owned by PW2, but PW2 and PW9 have duly proved this fact and this defense was also found false. He admitted the photographs took by the member of crime team namely Ct. Ajeet during trial, but during SA, he has shown his ignorance. He has also denied to have any knowledge of recovery of dead body of his wife and has explained that the police officials apprehended him from Priya Marriage Home along with the Pass book and PAN card, but it is not explained as to what was he doing with passbook and PAN at the time of his arrest. He has simply denied the recovery without tendering any explanation and simply claimed himself to be an innocent. As such, accused has failed to tender any plausible explanation to the incriminating evidence and adverse inference is bound to be drawn against him.
FIR No. 690/13 State Vs. Rahul Sharma 75 of 85
59. The Hon'ble Supreme Court of India has held in Amit Alia Ammu v. State of Maharashtra, (2003) 8 SCC 93 that if no explanation is offered in the statement by the accused u/s 313 Cr.P.C. His defense was of complete denial which is against the accused. It is further held in State of Maharashtra v. Suresh, (2000) 1 SCC 471 that the attention of the accused is drawn to such circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as a providing a missing link for completing the chain of circumstances. In view of the above judgments and the explanation tendered by the accused to the incriminating evidence, it is clear that the tendency of the accused throughout is just of denial of the entire evidence and an adverse inference is bound to be drawn against the accused and it shall be considered that he has committed the murder of the deceased simply denied thereafter.
60. Reliability of Defense Witnesses: So far the testimony of defense witnesses is concerned, DW1 is the father of accused and is a related witness. His testimony is against the testimonies of the PW12 and PW14 regarding the non availability of the accused at the house during their visit as well as arrest. DW1 has deposed that accused was at Gurgaon to meet his friend, but during DE, he has deposed that he went to market and thereafter he surrendered. Contrary to it, the arrest memo of the accused Ex.PW12/A is bearing FIR No. 690/13 State Vs. Rahul Sharma 76 of 85 the signature of the father of the accused who is DW1 and the place of arrest is at DTC Stand, near Karawal Nagar Chowk, Karawal Nagar, Delhi at 7:00 pm. This testimony of the DW1 is against the contents of the document and the same cannot be considered in the absence of any action from the side of the DW1 against the police officials who allegedly obtained his signatures on the blank documents including arrest memo of accused. Besides it, no document has been proved by the DW1 regarding the arrest and recovery of the articles from his house or his surrender at Priya Marriage home or that he was illegally detained by the police. As such, there is no reason to disbelieve the version of the prosecution. Rather he has admitted that he has been attending this case regularly and also informed DW2 about obtaining his signatures on the blank documents that too after 10 days which suggests that his plea is after thought.
61. Similarly, DW2 has also deposed that accused surrendered before the police at Priya Marriage Home and police accompanied him to PS. One passbook and PAN card of the accused along with Rs.600-700/- were also recovered from the accused which were kept by the police, but again this testimony of the DW2 is against the contents of documents Ex.PW12/1 and Ex.PW12/2 and personal search of accused has proved that only Rs.70/- were recovered in his personal search and not Rs.600-700/- as alleged. Again he has FIR No. 690/13 State Vs. Rahul Sharma 77 of 85 not made any complaint against the police to show the wrong arrest of the accused. He did not go inside the PS and was not aware about the nature of proceedings conducted at PS and has deposed the hearsay facts told after 10 days by DW1 that police obtained his signature on blank documents. It is beyond explanation if DW2 was with DW1 during his visit to PS then why he did not go inside the PS and why DW1 did not tell this fact instantly and took 10 days to disclose it. As such, the testimony of DW2 is based upon hearsay and he has deposed in support of the accused being neighbor and is also an interested witness who came to know about the facts regarding visit of the police to the house of the accused as the information spread in the area and his testimony is not reliable.
62. DW3 is also relative and interested witness of the defense. She is bua of the accused and has deposed that the accused remained present in the house from 16/11/2013 to 21/11/2013 till all the ceremonies of the marriage were completed. However, she was not aware as to how many relatives of the accused went to the house of Preeti Sharma, whereas she was supposed to be one of them being closest relative. She has deposed that Rahul had gone to the market on 23/11/2013 when police visited his house. In fact, accused remained absent from the tenanted premises from 19/11/2013 onwards and marriage ceremonies were fixed between this period, but it is not believable that he had no opportunity to FIR No. 690/13 State Vs. Rahul Sharma 78 of 85 outside during the period from 16/11/2013 to 19/11/2013, when he was lastly seen by the PW2 outside the tenanted premises. As such, there was no impediment to the accused to go outside after getting engaged especially when the distance between tenanted premises at Karawal Nagar and the house of the accused is not so much which could have not covered in short time without the knowledge of the family members The remaining testimony of the DW3 is regarding the visit of the DW1 and DW2 to PS but it is based upon hearsay and she has no personal knowledge about it. As such all the testimonies of the defense witnesses have deposed just to save the accused and also against the contents of the documents including arrest memo and their testimonies are not reliable.
63. Defense of Alibi of Accused: Accused has also built up a defense during the testimony of DW1 and DW3 that during the period of death of the deceased, accused was at his home with them and was performing the ceremonies of his marriage and he remained there from the date of engagement i.e. on 16/11/2013 to next date of marriage i.e. on 21/11/2013. As such, this defense taken by the accused is plea of alibi. The onus to prove alibi is on the accused. The Hon'ble Supreme Court of India has defined the plea of alibi in case titled Dudh Nath Panday v. State of UP AIR 1981 SC 911 that:
FIR No. 690/13 State Vs. Rahul Sharma 79 of 85 "...The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at other place. The plea can therefore succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed..." - Distance thus would be a material factor in the matter of acceptability of the plea of alibi."
64. In view of this law, this plea was to be proved by the accused but accused has failed to prove this defense. The testimony of the DWs is not found trustworthy to prove this plea as the distance between the house of the accused and place of incident was too closed that accused had every opportunity to visit the tenanted premises despite his presence at his house on the day of engagement with his second wife. Even he had opportunity to commit the offence in tenanted premises otherwise there was no chance of intrusion of other persons to the house without the knowledge of the PW2, especially when door was locked from outside and key was with the accused. Even one another fact has also proved the involvement of the accused that he not only committed the murder of the deceased in very brutal manner but also stuffed her dead body in a plastic sack and then again stuffed into a red and black bag with intention to took it away to dispose it off, but he could not succeed in doing so as the bag torn off and FIR No. 690/13 State Vs. Rahul Sharma 80 of 85 body could not be packed properly to remove and was to leave there. As such, there is no iota of chance to create any doubt in the story of the prosecution that the accused is not the killer of his wife.
65. Discrepancies in Evidence: So far investigation of the case is concerned, no doubt the investigation has some discrepancies which could have been avoided by the IO, but the defective investigation is not a ground to give the benefit of the doubt to the accused or to take the prosecution to task.. The discrepancies in the statements of the PWs are not of so such level which creates a doubt in the case of the prosecution. PW14 has admitted that red knife reflected in the photograph Ex.C54 was not seized but one chhurri was seized later on or that the bag from which recoveries were affected was also not seized. However, it is not fatal as the chhurri recovered from the possession of the accused has been connected to the accused by the FSL report as well as subsequent opinion of the doctor who conducted PM.
66. Further, the contradictions' emerged during testimonies are minor like, the finger prints expert tried to lift the chance prints from the lock and latch but this fact was not found recorded in statement u/s 161 Cr.P.C. or that PW1 deposed that PW3 tried to lift the chance prints but PW3 has denied to lift such prints. The crime team conducted the search of entire room and kitchen, but key of the lock FIR No. 690/13 State Vs. Rahul Sharma 81 of 85 was not found inside the kitchen, whereas PW3 has deposed that he did not properly searched the kitchen. The hammer and iron bit were also not seized after their use to remove the lock and latch. Similarly the timings of removal of dead body to hospital with application to preserve body was having different timings which could not be disclosed by PW6 or that the dispute of timings of the removal of the dead body. As such, these contradictions are minor and are not going into the merit of the case.
67. It has been held in State of UP v. M.K. Anthony, (1985) 1 SCC 505 and Leela Ram v. State of Haryana (1999) 9 SCC 525 that the difference in some minor detail, which does not otherwise affect the core of the prosecution case, may be there but that by itself wound not prompt the court to reject the evidence on minor variations and discrepancies. In Leela Ram (supra), this Court observed in paragraph 9 of the report:
"24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant detail. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be FIR No. 690/13 State Vs. Rahul Sharma 82 of 85 adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny."
25. It is a common practice in trial courts to make out contradictions from the previous statement of a witness for confronting him during cross- examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the section is extracted below:
'155. Impeaching credit of witness - The credit of a witness may be impeached in the following ways by the adverse party, or with the consent of the court, by the party who calls him (1) - (2).
(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;'
26. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be 'contradicted' would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross-examiner to use any former statement of the witness, but it cautions that if it is intended to FIR No. 690/13 State Vs. Rahul Sharma 83 of 85 'contradict' the witness the cores-examiner is enjoined to comply with the formality prescribed therein. Section 162 of Code also permits the cross-examiner to use the previous statement of the witness (recorded under Section 161 of the Code) for the only limited purpose i.e. to 'contradict' the witness.
68. In view of the abovesaid law, the certain contradictions emerged during the testimonies of the police officials are not sufficient to wash out their entire testimonies and to give the benefit of doubt of the case to the accused. The benefit of doubt is not the symbolic doubts but it must be material as held in AIR 2003 SC 3609 titled State of Punjab v. Karnail Singh in Para 12 that "exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroying social defense. Justice cannot be made sterile on the plea that it is better to let hundred of guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law as held Gurbachan Singh v. Satpal Singh & Ors. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial: if a case has some flaws in evidence because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed FIR No. 690/13 State Vs. Rahul Sharma 84 of 85 to escape. Proof beyond reasonable doubt is a guideline, is not fetish- A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties". As such, accused is not entitled for the benefit of doubt for such minor contradictions.
69. Keeping in view of the facts and circumstances of the case, I am of the considered opinion that the prosecution has proved this case beyond reasonable doubt that accused has committed the murder of his wife and he is liable for the same. Accused is convicted for the offence u/s 302 IPC.
Announced in open court (Devender Kumar)
today on 05.07.2016 Additional Sessions Judge-03
(NE): Karkardooma Courts, Delhi.
FIR No. 690/13 State Vs. Rahul Sharma 85 of 85