Delhi District Court
State vs . 1. Sumitra W/O Late Hari Om, on 9 June, 2011
1
IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGEV: ROHINI COURTS: DELHI
SC No.32/08
ID No.02404R0355352007
FIR No.192/07
PS Narela
U/s 302/201/34 IPC
State Vs. 1. Sumitra W/o Late Hari Om,
R/o Gali No.11B, Savtantra Nagar,
Narela, Delhi.
2. Santosh Kumar S/o Shyam Babu,
R/o Gali No.9B, Savtantra Nagar,
Narela, Delhi.
Date of institution in Sessions Court : 03.08.2007
Date of transfer to this Court : 20.11.2008
Date of Judgment : 06.06.2011
JUDGEMENT:
State Vs. Sumitra etc. PS Narela FIR No.192/07 175 2
1. In brief the prosecution story is that on 10.04.2007, on receipt of DD No.19B, SI Mohd. Yakub along with Ct. Rakesh reached the spot i.e Main Hole, Sewer Line, Link Road, near Janta Flats, opposite Simriti Van, Cremation Ground, where near the main hole of the sewer, along with the ganda nala, inside a cement pipe, a dead body of a male person, aged 2830 years was found, having blue colour pant and blue colour underwear, having injuries on his body and also having strangulation marks on the same. Around 2025 feets away from the said dead body, blood was found in heavy amount, where one pair of plastic chapple of black colour were also lying, one gamchha of purple colour, one bundle of biddies, make 502, one match box, make SAIL and two blood stained stones.
Addl. SHO and SHO also reached the spot. Crime team was also summoned along with the private photographer. Certain persons State Vs. Sumitra etc. PS Narela FIR No.192/07 175 3 were asked about the identity of the dead body, but nobody could identify the same. Consequently, in these circumstances, a rukka was written by SI Mohd. Yakub and an FIR U/s 302/201 IPC was registered at PS Narela and the investigation(s) were taken up.
2. After registration of the FIR, investigation(s), were handed over to Inspector Ram Kishan, in whose presence, the crime team inspected the spot and took photographs of the spot, and site plan was also prepared of the spot. Dead body was sent to the mortuary of BJRM hospital for preservation. The aforesaid articles were seized and along with them one plastic empty bottle of liquor make Mastana along with broken pieces of beer bottle, on which there was a label of Kingfisher were also seized near the main hole of the sewer.
3. Inspector Ram Kishan also found one diary inside the main hole, on which name and telephone numbers of some persons were State Vs. Sumitra etc. PS Narela FIR No.192/07 175 4 scribbled, and one telephone number was of Naresh Chand, who was contacted, who came to the mortuary of BJRM Hospital and identified the dead body, as that of Hari Om S/o Dori Lal, R/o Village Rasul Pur, District Badaiu, U.P. His statement was also recorded, in which he stated as under: "That he was doing the work of selling vegetables at Azadpur Mandi, and Hari Om was resident of their village, and due to this reason, they used to meet each other by visiting the house of each other.
Around 2 months ago, Hari Om, Sumitra and Santosh Kumar came to his house at Azadpur, at that time, Sumitra and Santosh Kumar were telling him that he had got married many persons, therefore, he should also get Santosh Kumar married, to which he stated that there was one handicapped girl, and he State Vs. Sumitra etc. PS Narela FIR No.192/07 175 5 would try to marry Santosh Kumar with her, to which both of them started saying that the said handicapped girl should be married with Hari Om, as both of them were residing together, as husband and wife and after marriage of Hari Om with the said handicapped girl, they would started living, as husband and wife openly, to which he refused, saying that such things were not possible in our society.
Thereafter, when he and Hari Om were sitting alone, he told him that he should do something for them, otherwise they would not allow him to live and would kill him. He told that nothing would happen and sent them after counseling them.
Yesterday, on 09.04.2007, after collecting money from Narela and nearby places, he was going from SectorA6, Narela towards Singhu Border Road, for catching the bus at around State Vs. Sumitra etc. PS Narela FIR No.192/07 175 6 8:00 p.m, at that time on the ganda nala, adjoining the road, he saw, Hari Om, Sumitra and Santosh Kumar sitting there, when he asked them the reason for sitting there, at that time Sumitra and Santosh Kumar told him that Hari Om had consumed large amount of liquor and was under the influence of intoxication, and thereafter he told them to take the Hari Om to his house and he went to his house.
Today, he was called to BJRM Hospital, where he identified the dead body as that of Hari Om S/o Dori Lal and he also informed the brother of Hari Om on telephone".
4. Thereafter, the postmortem on the body was got conducted. Both the accused persons were apprehended and their disclosure statements, were separately recorded.
Thereafter, at the instance of accused Sumitra, she got State Vs. Sumitra etc. PS Narela FIR No.192/07 175 7 recovered her blood stained suit, salwar and chunni from the loft of her house, which were seized. Thereafter, accused Santosh Kumar also got recovered his blood stained clothes from his house, which were also seized, and from the house of accused Santosh Kumar, one mobile phone, make Nokia, 9911178057 was also seized.
5. Both the accused persons also pointed out the place of occurrence, and the accused Sumitra also got recovered one blood stained shirt belonging to the deceased Hari Om, which he was allegedly wearing at the time of the incident, from the bushes near the spot, which was also seized. The said shirt was identified by the cousin brother of the deceased, as belonging to him, which he had allegedly given to deceased on his visit to his native place.
6. Thereafter, the I.O also got prepared the scaled site plan of the spot, and also obtained the PCR form and also obtained the call State Vs. Sumitra etc. PS Narela FIR No.192/07 175 8 details of the mobile No. 9911178057 and also mobile No. 9910816185 from which Sumitra allegedly made a phone call at the mobile of accused Santosh Kumar, from a PCO Booth.
7. Thereafter, the cause of death was opined as asphyxia, as a result of antemortem manual strangulation. The relevant exhibits were sent to FSL Rohini for forensic evaluation. After the postmortem the nail clippings of the deceased were preserved for DNA Test along with the nail clippings of the accused persons.
8. After completion of the investigation(s), a charge sheet U/s 302/201/34 IPC was filed in the court.
9. Upon committal of the case to the court of Sessions, charge U/s 302/210/34 IPC was framed against both the accused persons, vide order, dt. 09.08.2007, thereafter, an amended charge U/s 302/201/34 IPC was framed against both the accused persons vide State Vs. Sumitra etc. PS Narela FIR No.192/07 175 9 order, dt. 29.01.2008, to which both of them pleaded not guilty and claimed trial, as it was found that there was a typographical error in the earlier charge, framed against the accused persons, as instead of Section 201 IPC, 210 IPC was typed.
10. Thereafter, the prosecution in support of its case has examined 25 witnesses. PW1 is Dr. Upender Kishore, who has proved the postmortem report of the deceased, Ex.PW1/A, PW2 is HC Shamir Singh, who has proved the PCR form, Ex.PW2/A, PW3 is Ct. Manjeet, who vide DD No.9A was directed by Addl. SHO to reach the spot on 10.04.2007, where the dead body of the deceased was found, PW4 is Ct. Mahender, photographer of the crime team, who has proved the negatives, which are Ex.PW2/1 to 14 and the photographs, Ex.PW2/15 to 28, PW5 is Ct. Dharmender, the special messenger, who took the copy of the FIR to the senior officers, including the Ld. State Vs. Sumitra etc. PS Narela FIR No.192/07 175 10 MM, PW6 is Chander Pal, the brother of the deceased, who is the witness of character and previous conduct of the accused Sumitra, PW7 is R.K. Singh, Nodal Officer, Bharti Airtel Ltd., who has proved the call details of mobile No. 9910816185 for the period 01.01.2007 to 20.08.2007, which are Ex.PW7/A, and along with customer I.D proof and other documents, Ex.PW7/B & Ex.PW7/C, PW8 is Pawan Singh, Nodal Officer, Idea Cellular, who has proved the call details of the mobile No. 9911178057 w.e.f 01.04.2007 to 13.04.2007, which are Ex.PW8/1 to 5, PW9 is HC Chander Bhan, who has proved the DD No.19, as Ex.PW9/A and the DD No.9A, Ex.PW3/D, PW10 is HC Champa Toppo, who has deposed that on 11.04.2007, Ct. Manjeet had handed over to her viscera petti, containing the viscera of the deceased along with his clothes, nail clippings and anal swab, which she deposited with the MHC(M) vide DD No.27A, and Ex.PW2/C, State Vs. Sumitra etc. PS Narela FIR No.192/07 175 11 PW11 is SI Manohar Lal, who has proved the scaled site plan of the spot, Ex.PW11/A, PW12 is Master Rinku, the son of the deceased and that of accused Sumitra, who was examined without oath, as a child witness, PW13 is Dr. S.S. Shahi, CMO, SRHC Hospital, Narela, who has proved the MLC of the accused persons, which are Ex.PW13/A, and Ex.PW13/B, PW14 is Mohd. Ayub Siddiqui, who had made a call at 100 number on 10.04.2007, regarding the recovery of dead body from the said spot, PW15 is Naresh Chand, the star witness of the prosecution and the witness of last seen, PW16 is Mahipal, cousin brother of the deceased, who was also witness of the previous conduct of accused Sumitra, PW17 is HC Jogender Singh, the duty officer, who has proved the copy of the FIR, Ex.PW17/A and rukka Ex.PW17/B, PW18 is Sunil Kumar, who was doing the work of catering services, where accused Santosh Kumar also used to work State Vs. Sumitra etc. PS Narela FIR No.192/07 175 12 on daily wages, and who had given his mobile No. 9911178057 for use to him, PW19 is HC Beghraj, who has proved the relevant entries in register No.19, regarding the deposit of case properties with him, PW20 is SI Baljeet Singh, Incharge Crime Team, who has proved his crime team report, Ex.PW20/A, PW21 is SI Mohd. Yakub, the initial I.O, who went to the spot on receipt of DD No.19B, PW22 is Ct. Anil, who had accompanied the I.O Inspector Ram Kishan on 10.04.2007, and later on during the arrest and recovery at the instance of the accused persons, PW23 is Ct. Yashwant, who had taken the sealed parcels of the present case to the FSL Rohini on 15.06.2007, PW24 is Ct. Rajesh, who along with SI Mohd. Yakub went to the spot on receipt of DD No.19B, on 10.04.2007, and who was sent to the PS with the rukka for the registration of the FIR, PW25 is Inspector Ram Kishan, the I.O of this case, who has deposed regarding the State Vs. Sumitra etc. PS Narela FIR No.192/07 175 13 investigation(s), as were carried out by him during the course of the present case.
11. Thereafter, separate statements of both the accused persons U/s 313 Cr. PC were recorded, in which the accused Sumitra admitted that Santosh Kumar used to come to her residence along with her husband, as both were good friends, but stated PW6 never came to their house and further PW12 Rinku was deposing falsely against her on the tutoring of her in laws and police officials. She also stated that she was innocent and falsely implicated in this case, she had also been beaten up by the police officials and due to which she also received scratches on her body for which her MLC was also prepared and that the police officials had planted chunni and shirt upon her. However, she chose not to lead any evidence in her defence.
State Vs. Sumitra etc. PS Narela FIR No.192/07 175 14
12. In his statement U/s 313 Cr. PC, the defence of the accused Santosh Kumar was that he was falsely arrested in this case and he never made any disclosure statement. His clothes were brought by the police officials at PS and after that they sprinkled blood upon the same, and he was also called by the officials of PS at his mobile and after receiving the call, he went to the PS, where he was falsely implicated in this case. However, he also chose not to lead any evidence in his defence.
13. I have heard the Ld. Defence counsel Sh. A .K. Khushwaha, for accused Santosh Kumar, who had also appeared as Amicus for accused Sumitra and have also heard Ld. Addl. PP for the state Sh. A .K. Srivastava and have also gone through the written submissions, filed on behalf of the accused persons. The Ld. Defence counsel has relied upon the following judgments: State Vs. Sumitra etc. PS Narela FIR No.192/07 175 15 Shekhar & Anr. Vs. The State of NCT of Delhi, 2008(2) JCC 871, Hon'ble Delhi High Court, Mahender Kumar Vs. State, 2010(4) JCC 2648, Hon'ble Delhi High Court, Ghanshyam Vs. State, 2010 I AD (DELHI) 198, Hon'ble Delhi High Court, Niranjan Panja Vs. State of West Bengal, 2010(3), JCC 2024, Supreme Court of India, State of Uttar Pradesh Vs. Shyam Behari & Ors., JT 2009 (11) SC 274, Hon'ble Supreme Court of India, Sattatiya @ Satish Ranjanna Kartalla Vs. State of Maharashtra 2008(1) JCC 597, Hon'ble Supreme Court of India, Jiten Besra Vs. State of West Bengal, 2010(2) JCC 922, Hon'ble Supreme Court of India, Mohd. Jamil Vs. State of NCT of Delhi, 152 (2008) Delhi Law Times 750 (DB) Hon'ble Delhi High Court.
14. The Ld. Defence counsel has argued that the entire case of the prosecution is based upon circumstantial evidence, as there was no State Vs. Sumitra etc. PS Narela FIR No.192/07 175 16 direct evidence in the present case, and the main circumstance relied upon by the prosecution was with regard to the alleged last seen testimony of PW15 Naresh Chand, which was not at all trustworthy in view of number of contradictions, appearing in his crossexamination, which indicates that he was not a reliable witness and that he had been planted by the I.O to strengthen the case of the prosecution.
He has also argued that it was highly unlikely that PW15 had seen both the accused persons together in the company of deceased, one day prior to the recovery of the dead body of the deceased in the Narela area, as PW15 had no business to be present in the area of Narela, as he was doing his business in Azadpur Mandi, as per his testimony, and he has also failed to specify to whom he had gone to collect the money on that day, as stated by him. Further, he had failed to show that he was doing any vegetable business in Azadpur State Vs. Sumitra etc. PS Narela FIR No.192/07 175 17 Mandi area, as no documentary evidence or any other evidence has been produced on the record to support the said claim. Therefore, he has argued that the testimony of PW15 was not reliable one and the entire case of the prosecution was based upon said testimony only. Therefore, since the prosecution had failed to prove the main circumstances of last seen, therefore, the entire case of the prosecution falls.
He has further argued that in the present case, the recovery of blood stained clothes, allegedly at the instance of both the accused persons is also very doubtful, as admittedly no independent witness was joined in the recovery proceedings, despite the availability of public persons, in large numbers, and further no site plan(s) of the recovery was also prepared by the I.O, making the said recovery doubtful, is also argued that admittedly the blood samples of both the State Vs. Sumitra etc. PS Narela FIR No.192/07 175 18 accused persons had not been taken, therefore, prosecution has failed to rule out the possibility that the blood stains found on the clothes, allegedly recovered at the instance of accused persons, may be of the accused persons only. He has further argued that the prosecution has even failed to prove that the said clothes belonged to the accused person person only, as no evidence had been collected or adduced in this regard.
15. He has further argued that the testimony of child witness PW12 Rinku was not credible, as said witness being a child witness was open to tutoring and influence and in the present case he had deposed falsely against the accused persons at the tutoring of the relatives of the deceased and the police officials. Therefore, his testimony has to be read with caution and reading his testimony in this manner, it appears that he was a tutored witness, therefore, no State Vs. Sumitra etc. PS Narela FIR No.192/07 175 19 reliance can be placed upon his testimony.
He has further argued that PW6 & PW15 were inimical to the accused Sumitra, since they did not like her from the very day, she was brought by deceased to his house as wife, and further as per PW1 autopsy surgeon, the possibility of involvement of more than one person cannot be ruled out, keeping in view the number of injuries and nature of the same, but he also stated that it could also be caused by one person. Further, PW6 Chanderpal has deposed that deceased was of better health and physique than the accused Santosh Kumar, which also shows that the accused Santosh Kumar could not have killed him.
He has further argued that PW15 had claimed that he was informed by deceased that his life was in danger from the accused persons, yet after seeing all of them together in the late hours as per State Vs. Sumitra etc. PS Narela FIR No.192/07 175 20 the prosecution story, he did not do anything or found anything unnatural.
He has further argued that from the statement of PW12 Master Rinku, it was clear that when the accused Santosh Kumar had come to their house at that time his mother accused Sumitra Devi was present with him, while accused Santosh Kumar had blood stains on his pant, he has not stated that his mother had any blood stains on her clothes. The said testimony of the prosecution witness is contrary to the prosecution story, since accused Sumitra was already present at her house with PW12 Master Rinku, when accused Santosh Kumar came there. Therefore, she could not have killed the deceased in concert with him. He has further argued that PW16 Mahipal did not support the prosecution version, regarding the accused Sumitra, taking out the shirt from the bushes, and he further State Vs. Sumitra etc. PS Narela FIR No.192/07 175 21 stated that he saw the shirt for the first time at the PS, after the murder, which also demolishes the prosecution version.
Therefore, he has argued that both the accused persons deserves to be acquitted.
16. On the other hand, Ld. Addl. PP for the state has refuted the aforesaid arguments of the Ld. Defence Counsel/Amicus, and has argued that the testimony of PW15 was totally reliable and it does not suffer from any infirmity, as nothing has come in his cross examination, which could demolish the credibility of his testimony in chief. He has also argued that from the testimony of PW15, it appears that PW15 had gone to the spot, one day prior to the incident in the night time, where he had gone to collect the money, from his customers, and he was a chance witness, who happened to see the accused persons in the company of deceased, while deceased was State Vs. Sumitra etc. PS Narela FIR No.192/07 175 22 under heavy influence of liquor, which is also corroborated by the viscera report, in which heavy amount of ethyl alcohol has been found. He has further argued that the prosecution has been able to prove this main circumstance, against the accused.
17. He has further argued that the child witness PW12 Rinku was totally reliable witness, as there was no reason for the said child to depose falsely against the accused Sumitra, who was none other than his mother, and that no child would depose falsely against his mother, even if tutored by other relatives. Even otherwise, he has argued that there was no element of tutoring in the testimony of PW12.
18. He has further argued that both the accused persons got recovered their blood stained clothes, which were found to have same blood grouping as that of deceased in the FSL report, and it shows that both the accused persons were the persons, who had killed the State Vs. Sumitra etc. PS Narela FIR No.192/07 175 23 deceased, as both the accused persons had failed to account for the said blood grouping appearing on their clothes. He has further argued that though the blood groups of both the accused persons were not collected during the trial, but if the accused persons wanted to show to the court that their blood grouping was same, as that of the deceased then they could have given their blood sample at the time of defence evidence, and could have called any doctor to prove their blood grouping, as the same which was found on their clothes. He has further argued that accused Santosh Kumar in his statement, U/s 313 Cr. PC has admitted that the clothes, belonged to him, rather his defence was that the police officials sprinkled the blood on the same in the PS. This shows that the said clothes were admitted by the accused Santosh Kumar, as belonging to him.
19. Lastly he has argued that from the testimony of PW6 State Vs. Sumitra etc. PS Narela FIR No.192/07 175 24 Chanderpal and PW16 Mahipal, who are the relatives of the deceased, it is clear that before death, the deceased had confided with him that he had seen both the accused persons in a compromising position with each other, which showed previous conduct of the accused persons and their state of mind and the reason why they wanted to eliminate the deceased Hari Om from their way. Therefore, he has argued that both the accused persons deserves to be convicted.
20. I have gone through the rival contentions.
21. In the present case, admittedly the entire case of the prosecution is based upon circumstantial evidence, as there is no direct evidence in the present case. In the case of Mohmood Vs. State of U.P. (1976) 1 SCC 542, it has been held that "in a case dependent wholly on circumstantial evidence the court must be State Vs. Sumitra etc. PS Narela FIR No.192/07 175 25 satisfied
(a) that the circumstances from which the inference of guilt is to be drawn, have been fully established by unimpeachable evidence beyond a shadow of doubt:
(b) that the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused; and
(c) that the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis save t hat of the guilt sought to be proved against him".
22. However, in case Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622, the Supreme; Court referred to and relied upon Hanumant Vs. State of Madhya Pradesh, 1952 SCR 1091 AIR 11952 SC 343 and stated the five golden principles constituting the Panchsheel of the proof of a case based on circumstantial evidence as follows:
State Vs. Sumitra etc. PS Narela FIR No.192/07 175 26 (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that ....... the circumstances concerned 'must or should' and knot 'may be' established. There is not only a grammatical but a legal distinction between may be proved' arid 'must be or should be proved'.....
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to the proved, and there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion State Vs. Sumitra etc. PS Narela FIR No.192/07 175 27 consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
23. The following circumstances were pressed into service by the prosecution in support of its case.
a. That deceased (herein after referred to as D) and A1 (hereinafter accused Sumitra would be referred as A1), were living together as husband and wife, and A2 (hereinafter accused Santosh Kumar would be referred as A2), developed intimacy with A1, while residing close to them.
b. The deceased feared for his life, due to intimate relations of A1 and A2.
c. Last seen testimony of PW15, when he had seen deceased alive in the company of A1 & A2, one day prior to his death, at around 7:308:00 p.m, while deceased was under the influence of heavy State Vs. Sumitra etc. PS Narela FIR No.192/07 175 28 intoxication.
d. Arrest of accused A1, thereafter, her disclosure statement, pursuant to which she got recovered her blood stained clothes, which she was wearing at the time of the incident, from the loft of her house, and thereafter, she also got recovered the blood stained shirt of the deceased from the bushes near the spot.
e. Arrest of accused A2, thereafter his disclosure statement and pursuant to the same, which he got recovered his blood stained clothes from his house.
f. Postmortem report, which corroborates the prosecution evidence, regarding the cause of death, as well as the injuries, suffered by the deceased, as well as time of death, which is also corroborated by the viscera report.
24. Regarding the circumstances No.(a) & (b), same are taken State Vs. Sumitra etc. PS Narela FIR No.192/07 175 29 together, as they are interconnected with each other. In this regard, testimony of PW6, PW12, PW15, PW16 and PW18 would be relevant. PW6, who is the brother of the deceased has deposed that deceased was his younger brother, but he could not be married, and after disposing off the share of his agricultural land, he went to Bengal with one Bengali person and from there he brought A1 and informed them that he had married her, he found A1 to be of doubtful character, and after selling the remaining share of his agricultural land, he came to Delhi at Narela, and started doing labour job. At Narela, they got intimacy with accused A2, who used to visit and remain in the rental house of D (deceased). Once accused A2 had also visited their village alongwith D and A1, there he had found the behaviour of A2 and A1 doubtful and their relationship seemed intimate like that of husband and wife.
State Vs. Sumitra etc. PS Narela FIR No.192/07 175 30 Once, he visited Delhi on 30.03.2007 and went to the house of D at Narela and found D there and on inquiries, D informed him that he had seen A2 and A1 in compromising position, to which he objected and they wanted to eliminate him from their way. Nothing has come out in his crossexamination, which could show that his version, that he had observed, that there was intimate relations between accused A1 and A2 on one of their visit to their village was not correct, as it is a matter of observation of a particular individual, depending upon his perception. Further, his version that he had also visited Delhi, few days before the incident and met the deceased has also not been shaken in his crossexamination or that the deceased had told him that he had seen both the accused persons in a compromising position. Though, this part of testimony of PW6 is a second hand version or to say that it was hear say. State Vs. Sumitra etc. PS Narela FIR No.192/07 175 31 Similarly, PW12 Master Rinku, the son of the deceased and that of accused A1 has also deposed, as a child witness, whose testimony is found to be trustworthy on reading his testimony as a whole on close scrutiny and it does not appear that his testimony is tainted by tutoring. He in his testimony has stated that in the absence of his father, the accused A2 used to come to their house and whenever A2 visited their house, he stayed at their house for a long duration, thereafter, he used to leave the house. Nothing has come out in his crossexamination as well, which could show that he was not a trustworthy witness on the said aspect.
25. Further, PW15 Naresh Chand in his testimony has also deposed that he knew the deceased, who was also from his native place, and he was working in Narela as a rickshaw puller and was living with his wife A1 in Narela, and he used to visit him and he also State Vs. Sumitra etc. PS Narela FIR No.192/07 175 32 used to visit him, and about 2 to 2½ months before his death, D visited him along with A2 and A1. A1 asked him "Bhai Aap Sabki Shahdiay Kara Dite Ho A2 Ki Bhi Shadi Kara Do", to which he told her that there was a one handicapped girl and he can talk to her for marriage with A2, on this A1 reply, if A2 could not be married with that girl, then he should get her husband D married with her. He refused to the same, to which A1 replied that they all four would live together, while A1 and A2 remained in his quarter. D took him to a side and told him that "Bhiaya Inka Koi Samadhan Kara Do Nahi to Ye Muje Maar Denge Ya Marva Denge". He told D that he was getting panicky and nothing would happen.
Thereafter, all the three left his house. The aforesaid witness was not at all crossexamined on the aforesaid aspect of his testimony in crossexamination. No suggestion was given to him that State Vs. Sumitra etc. PS Narela FIR No.192/07 175 33 neither the accused A1 gave him any such indecent proposal, nor a suggestion was given that any such fact was confided to him by the deceased that both the accused persons were planning to eliminate him. Therefore, the version of PW15 on the said aspect, goes challenged.
PW16 is another witness examined by the prosecution on this aspect. He has also deposed that deceased D was his cousin brother, and that 15 days prior to his death, he had come to Delhi for purchasing a vehicle and at that time, he had asked D to come back to the village, but D refused, saying that he cannot come back, due to his children, and that accused A2 was living in a room, adjoining to the room of D and A1. Later on, he was declared hostile by the public prosecutor and in his crossexamination, he deposed as under: "It is correct that accused A2 once visited our village State Vs. Sumitra etc. PS Narela FIR No.192/07 175 34 along with A1 and D. It is incorrect to suggest that I stated to the police in my statement that the behaviour of A2 and A1 was like husband and wife. Confronted with portion AA of statement mark X where it is so recorded. It is correct that when I visited the house of D, accused A2 was present there and D told me that he was very disturbed as he had seen A1 and A2 doing wrong act with his own eyes and that both of them are planning to eliminate him". Though, the answers given by this witness, mentioned above in his crossexamination is a weak kind of evidence, as the same has only been given in affirmative, in response to the leading questions, put by the public prosecutor. In any case, no suggestion was even given to this witness on the said part of his testimony. Therefore, his testimony to this extent that accused A2 was living in a room adjoining to the room of D and A1, remains State Vs. Sumitra etc. PS Narela FIR No.192/07 175 35 unassailed as well as his testimony that deceased had told him that he was very disturbed, as both the accused persons were doing wrong acts with his own eyes, and both of them were planning to eliminate him. Though, this part of his testimony is a second hand version.
26. Further, PW18, who as per his testimony was the employer of accused A2, as he was running the catering services (halwai), for arranging the marriages in the rural areas, and he stated that he used to call accused A2 for catering services, as he was their worker (karigar) on daily wages and he had also provided one mobile phone to him, and he used to call him on the said mobile. Accused A1 also used to accompany him in catering services along with her husband. Thereafter, he was declared hostile, and in his crossexamination by the public prosecutor, he stated that it was correct that 34 times, State Vs. Sumitra etc. PS Narela FIR No.192/07 175 36 accused A1 and A2 alone used to come for work for catering services. No suggestion was given in his crossexamination that accused A2 was not working for him or that accused A1 never used to work alone with accused A2. The aforesaid facts, which have come out in the testimony of PW18 also somewhat establishes the proximity between both the accused persons.
27. In totality from the evidence of aforesaid prosecution witnesses, the prosecution has been able to establish the motive of the accused persons to eliminate the deceased D, as they were having intimate relations with each other, which was naturally not to the liking of deceased, and therefore, they wanted to eliminate him, and the deceased also feared for his life, due to the aforesaid intimate relations of both the accused persons. The said facts are relevant facts, to show the motive as well as previous conduct of both the State Vs. Sumitra etc. PS Narela FIR No.192/07 175 37 accused persons, which is admissible U/s 8 of the Indian Evidence Act. Consequently, circumstances No. (a) & (b) are decided in favour of the prosecution and against the accused persons.
28. Regarding the circumstance No.(c), testimony of PW15 Naresh Chand is relevant, as he in his testimonial deposition on the said aspect, has deposed as under: "I used to go here and there for taking the money of my vegetables. I was going to Singhu Border from Narela for collecting my money. On one side thee is Shamshan Ghat and on the other side there is Mata mandir. The road across them goes to Singhu Border and there is a straight road also. I saw A2, D and A1 sitting there on the corner of the naala near the above stated place. It was 7:30 or 8 p.m, I asked them as to what they were doing there. A1 replied that "D ne bahut Jaayada State Vs. Sumitra etc. PS Narela FIR No.192/07 175 38 Sharab Pi Rakhi Hai and jab nasha kam ho jayega to chale jayange". From there I left for my house in Azad Pur. On the next day in the morning I received a telephone call from Dharoga ji (police official). He told me on telephone that D has been killed and asked me to reach at BJR Hospital. I went to Babu Jagjivan Ram Hospital, where I identified the dead body of D. From there, I went to police station Narela and told the police also that the dead body was of D. Police recorded my statement. I also told the police that I had informed the family members of D and they are coming".
29. Regarding last seen evidence, it has been held in judgment State of Goa Vs. Sanjay Thakran and another 2007(2) R.C. R. (Criminal) 458 that: "From the principle laid down by this Court, the circumstance of last seen together State Vs. Sumitra etc. PS Narela FIR No.192/07 175 39 would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely by ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the State Vs. Sumitra etc. PS Narela FIR No.192/07 175 40 accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case".
30. The Ld. Defence counsel has also relied upon the judgment (supra) 2010(3) JCC 2024, in which it was held that "where the prosecution depends upon the theory of 'last seen together', it is State Vs. Sumitra etc. PS Narela FIR No.192/07 175 41 always necessary that the prosecution should establish the time of death, which the prosecution has failed to do in this case". He has further relied upon a judgment JT 2009 (11) SC 274, in which the Hon'ble Supreme Court further relied upon a judgment, Bodhraj @ Bodha and others v. State of Jammu and Kashmir 2002(8) SCC 45, in which it was held as under: "The last seen theory comes into play where the timegap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult to some cases, to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other person coming in between exits in the absence of any State Vs. Sumitra etc. PS Narela FIR No.192/07 175 42 other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases".
31. In view of the clear elucidation of law laid down by the Hon'ble Supreme Court in the aforesaid judgments, it has to be seen whether the prosecution case passes the tests laid down in the aforesaid judgments on the credibility of the last seen evidence.
32. In the testimony of PW15, there are no discrediting circumstances, to make his testimony doubtful. He appears to be a chance witness, who happened to be at the place, where the deceased and A1 & A2 were present, one day prior to the discovery of the dead body of the deceased. PW15 in his crossexamination has stated that he was doing the business of vegetables on the road in Azadpur Mandi, and his business was of a retailer. He further State Vs. Sumitra etc. PS Narela FIR No.192/07 175 43 stated that he had no fixed customers in the mandi, who used to take vegetables for credit from him, and usually he used to get back his money in the evening, but if the same was not returned, he used to visit them for collecting the money. He also stated that police did not ask the name of the person, to whom he had gone for collection. He denied the suggestion that he had not stated the name of those persons, whom he visited for collecting the money, as there were no such persons. He further specified that in Azadpur Mandi, vegetables are sold on 7 days credit.
33. In the present case, Ld. Defence counsel has argued that PW15 has not shown any document that he was doing the business of selling vegetables at Azadpur Mandi, nor he had specified the names of the said customers, to whom he had gone for collecting the money. He had further not specified the place or the road, where he State Vs. Sumitra etc. PS Narela FIR No.192/07 175 44 was doing the business of selling vegetables as retailer, and his last seen testimony, having seen deceased A1 & A2 together one day prior to the recovery of the dead body of the deceased was highly doubtful, as it is highly unprobable, that PW15, who was a close friend of deceased also happened to be at the same secluded place, where D along with A1 & A2 were sitting by the side of nala at Narela.
Therefore, he has argued that the testimony of this witness in these circumstances deserves to be discarded, as he appears to be a planted witness.
34. I do not find any merit in the said argument of the Ld. Defence counsel, as PW15 was a small retailer, who used to sell vegetables on credit, small retailers have small capital, which needs to be replenished very fast, which can only be done by reaching out to the customers themselves for collecting the money, rather waiting for State Vs. Sumitra etc. PS Narela FIR No.192/07 175 45 them to give the money.
Such petty retailers do not have any documentary evidence to showcase their business, what document would a person selling vegetables on a handcart would have?
Therefore, there is no reason to disbelieve the testimony of PW15 that he was selling vegetables in Azadpur Mandi on retail basis, and he also used to go for collecting the money for the vegetables sold by him on credit by him to his customers, and his presence at the spot, where the deceased along with A1 & A2 were sitting.
35. Though, PW15 should have found something missing finding all the three above persons sitting together at the same place, more so, as the D had told him few months before the incident about the evil designs of A1 & A2, but since A1 assured him that they would take D State Vs. Sumitra etc. PS Narela FIR No.192/07 175 46 to house, once he comes out from the influence of alcohol, therefore, it appears he went away feeling assured on the assurances of A1, that D would be taken to his house, once his intoxication level is brought down. In any case, he would not have thought about the extreme consequences at that time.
36. Though, PW12 stated that when A2 came to his house, his clothes were stained and at that time his mother was also present at his house. Relying upon this part of his testimony, the Ld. Defence counsel has argued this shows that the prosecution story as projected in the present case, that both the accused persons A1 & A2 had killed the deceased in concert was false and also the prosecution story that PW15 had seen A1, A2 in the company of D. Since, only A2 had returned home, while his clothes were stained with blood, whereas A1 was already present there along with his child, and the said child State Vs. Sumitra etc. PS Narela FIR No.192/07 175 47 witness had also not deposed that the clothes of his mother i.e A2 were stained with blood.
37. I have examined the said plea of the Ld. Defence counsel, the same appears to be without any substance, as it is quiet possible that both of them may have reached to the house of PW12 separately or one by one i.e A1 may have reached the house earlier to A2, following by A2, and the said child may have not noticed A1 coming back to his house alone. In any case, there was no special rocket science involved in the same to come to this conclusion.
38. Further, the time since death has been opined in the postmortem report to be 1½ days, and the postmortem was conducted on 11.04.2007 at about 1:05 p.m, therefore, the time since death has been opined to be 36 hours at the time of conducting the postmortem. Extrapolating the same, the approximate time of death State Vs. Sumitra etc. PS Narela FIR No.192/07 175 48 of D in this manner would come to be around 1:00 p.m on the night of 09/10.04.2007, and as per the testimony of PW15, he had seen both A1 & A2 in the company of D between 7:30 to 8:00 p.m, one day prior to the recovery of his dead body.
Therefore, the onus in these circumstances shifted upon the accused persons to show that, they had left the deceased at the same place or at some other place in the company of someone else or D had parted their company, which was witnessed by somebody else, which is not the case in hand. The time gap between the last seen testimony of PW15 and time of death as opined by the postmortem report is so small that it rules out the possibility of involvement of any other person in the crime in question. In any case, the condition of deceased was not such that he would have been able to go alone anywhere, due to heavy intoxication, as per the testimony of PW15, State Vs. Sumitra etc. PS Narela FIR No.192/07 175 49 and as per the viscera report (which though has not been exhibited, but the same was relied upon by PW1 autopsy surgeon in his testimony to give the final opinion, regarding the cause of death and the said witness was also crossexamined by the Ld. Defence counsel, therefore no prejudice has been caused to the accused persons, as the Ld. Defence counsel had also given a suggestion in his crossexamination that deceased had died due to excessive in take of alcohol, which suggestion he denied.
Therefore, in these circumstances, the said viscera report was not even opposed by the Ld. Defence counsel), and can be relied upon in evidence. There was heavy amount of ethyl alcohol 290.5 mg/100 ml of blood, which shows high intoxication level of the deceased at that time. Though, his postmortem was performed after almost 36 hours of his death. In these circumstances, prosecution has State Vs. Sumitra etc. PS Narela FIR No.192/07 175 50 been able to prove circumstance No. (c) in its favour and the same is decided in favour of the prosecution and against the accused persons.
39. Regarding circumstances No.(d) & (e). In this regard the testimony of PW25 Inspector Ram Kishan and PW22 Ct. Anil is relevant. PW25 has deposed that on 12.04.2007, he along with Ct. Anil were investigating the case in hand and were going towards Railway Lines, Savtantra Nagar, and both the accused persons were noticed by them near the railway lines. They were apprehended and interrogated. Accused A1 was interrogated. He made a disclosure statement, Ex.PW22/A and A2 made a disclosure statement, Ex.PW22/B. Thereafter, A1 lead the police party to her rented accommodation i.e Gali No.11B, Savtantra Nagar, Narela and she got State Vs. Sumitra etc. PS Narela FIR No.192/07 175 51 effected recovery of blood stained chunni, suit and salwar from her house, which were seized.
Similarly, accused A2 lead the police party to his house in the gali No.9B Savtantra Nagar, Narela, and got effected recovery of one gray colour pant and lining shirt, having blood stains on the same. The same were also seized.
Thereafter, A1 got effected recovery of one lining shirt belonging to the deceased, having blood stains on it from the bushes near the spot, which was identified by the brother of the deceased. The aforesaid witnesses were extensively crossexamined, with regard to their testimony on the recovery part.
40. The prosecution had also examined PW16 Mahipal on the recovery part qua the A1, regarding the recovery of blood stained shirt of the deceased near the place of recovery of the dead body, but the State Vs. Sumitra etc. PS Narela FIR No.192/07 175 52 said witness had to be declared hostile. Though, in his cross examination by the Ld. Public prosecutor, he supported the prosecution case, that from PS Narela, he went to the spot, where he saw accused A1, taking out the linedar shirt from the bushes having blood stains on it, and he also told the police that the deceased D was wearing that shirt at the time of his murder and it was the same shirt, which D was wearing, when he visited his village, which belonged to him and which D took with him.
41. In his crossexamination, he stated that it was correct that he had seen the shirt for the first time, at the PS after the murder and that the shirt was brought by Naresh from Singhu Border near Mandir. This completely demolishes his testimony, regarding the recovery of blood stained shirt belonging to the deceased from the place of recovery of dead body at the instance of A1, and further since he had State Vs. Sumitra etc. PS Narela FIR No.192/07 175 53 seen the shirt in the PS for the first time, after the murder, the same is also hit by Section 162 Cr. PC. Therefore, in these circumstances, the recovery of shirt of the deceased at the instance of A1 does not inspire confidence, more so, the crime team would have gone to the spot along with the dog squad and they would have scanned the entire area in the vicinity of the place of recovery of dead body and if the said shirt was lying there, then the same would have been noticed by the police officials, or the crime team officials. Therefore, for this reason also the same does not inspire any confidence.
42. Regarding the recovery of blood stained clothes of A1 from her house. It has been argued by the Ld. Defence counsel that as per the testimony of child witness PW12, when A2 came to his house, his clothes were stained with blood, but his mother was present in his house along with him. Consequently, Ld. Defence counsel has State Vs. Sumitra etc. PS Narela FIR No.192/07 175 54 argued that since the witness of the prosecution itself had not seen A1 coming back to her house, having blood stained clothes, therefore, the said recovery was planted upon her. The said argument is without substance, as already discussed in the preceding main circumstance of last seen, it is quiet possible that both the accused persons came back to the house one by one, without anyone noticing, the return of A1. Therefore, it is quiet possible that A1 might have concealed her clothes, without the knowledge of her son PW12.
43. Further, though no public witness was joined in the recovery, but the same is not fatal to the case of the prosecution, as it is trite knowledge that nobody wants to join police investigation(s), due to various reasons. Further, the Ld. Defence counsel has argued that the clothes did not belong to the accused A1 and the same had been planted upon him. The said argument is without substance, as the State Vs. Sumitra etc. PS Narela FIR No.192/07 175 55 Ld. Defence counsel could have shown to the court during the trial that the said clothes did not fit the size of A1 by demonstrating the same to the court, which was not done.
44. Therefore, the prosecution could not have lead a negative evidence on this aspect. Further, regarding the argument of the Ld. Defence counsel that blood group of A1 was not taken during the trial or investigation(s), therefore, it is quiet possible that the same may be of A1 only on the said clothes. The said argument is also without substance, as what stopped the Ld. Defence counsel or the accused A1 to asked for the blood test, during the defence evidence, as a said simple test would have revealed her blood grouping, which would not have changed, since the time of the incident.
Further, A1 has failed to explain the circumstances under which the blood of the deceased came on her clothes. She has not State Vs. Sumitra etc. PS Narela FIR No.192/07 175 56 furnished any explanation in this regard, which was due from her. More so, as in her clothes, Ex.15A, 15B, 15C, same blood grouping was found, as was of deceased, and the blood was also found to be of human origin. Therefore, the recovery of blood stained clothes of A1 has been satisfactorily proved by the prosecution.
45. Regarding the recovery of blood stained clothes of A2, as discussed above, non joining of the public witnesses is not fatal to the case of the prosecution, as discussed in preceding paras. The accused A2 in his statement U/s 313 Cr. PC has admitted that his clothes were brought by the police officials at PS, but they sprinkled the blood stains on his clothes. Thereby, at least this accused admits that the clothes belongs to him. Though, he submits that the blood was sprinkled on the same by the police officials. On the said clothes of A2 same blood grouping was found, as that of deceased, having B State Vs. Sumitra etc. PS Narela FIR No.192/07 175 57 grouping and the blood was also found to be of human origin. The said accused had failed to explain the circumstances, under which the blood having the same blood grouping that of deceased came on his clothes. Further, as discussed above, A2 could have also asked for the blood test during the trial, by leading defence evidence to demonstrate to the court that his blood grouping was also same, as that of deceased, which was not done.
Regarding the argument of the accused A2, that the blood was sprinkled upon his clothes by the police officials. The said argument is without any substance, as this accused was apprehended on 12.04.2007, whereas as per the testimony of PW3 Ct. Manjeet, after postmortem the doctor handed over to him pullandas, containing the viscera of the deceased, blood sample in gauze piece, clothes of the deceased, nail clipping of the deceased along with the sample seal of State Vs. Sumitra etc. PS Narela FIR No.192/07 175 58 FMT BJRM Hospital, and the same were handed over to him by duty officer, and duty officer in turn had deposited the same in the malkhana vide DD No.9A, Ex.PW3/D. To this witness, there has been no crossexamination.
46. Consequently, there was no chance of tempering of the blood samples of the deceased in these circumstances, so as to leave out the chances of sprinkling of blood on the clothes of A2 as alleged by him. In these circumstances, prosecution has also been satisfactorily able to prove the recovery of blood stained clothes of A2 at his instance. Consequently, circumstances No.(d) & (e) are deciding in favour of the prosecution and against the accused persons.
47. Regarding the circumstance No.(f). The testimony of PW1 Dr. Upender Kishore would be relevant, who had conducted the autopsy on the body of the deceased. During the postmortem of the State Vs. Sumitra etc. PS Narela FIR No.192/07 175 59 deceased D, following external injuries were found on his body. a. Multiple reddish abrasion present over middle and outer aspect of right side forehead in an area of 8x4 cm. b. Reddish abrasion multiple in an area of 6x3 cm, present over the left side middle of forehead.
c. Reddish abrasion multiple in an area of 4x3 cm, present over the nose.
d. Reddish abrasion multiple in an area of 6x6 cm, present over the right side cheek.
e. Regular shape in size wound with abraded and contused margins of size 3x1.5x0.5 present over the right side middle of cheek.
f. Reddish abrasion in an area of 8x6 cm, present over the right side lower cheek and mandible multiple with bruising. State Vs. Sumitra etc. PS Narela FIR No.192/07 175 60 g. Bruising of size 2x1 cm and 1x1 cm present over the lower lip.
h. Incised wound in regular shape with abraded and contuse margin of size 1x.5x.5 , present over the left zygomatic process surrounded by reddish abrasion with contusion margin in an area of 11x6 c.m.
i. Multiple reddish abrasion in an area of 6x3 cm, present over the left side middle up neck.
j. Reddish contuse abrasion horizontally placed in an area of 19x10 cm, present over the middle front of neck four in number placed 10 cm below the chain (sic). The upper abrasion is 1.2 cm is broad, separated apart to each other. A diagram is also made depicting the injury No.10 in the P.M report.
k. Reddish contuse abrasion present over the upper front of State Vs. Sumitra etc. PS Narela FIR No.192/07 175 61 chest and shoulder in an area of 14x.5 cm multiple in number. l. Reddish abraded bruise of size 3 x cm, present over the outer upper front of left side chest.
m. Reddish abrasion of size 6x4 cm, present over the upper outer aspect of left shoulder.
n. Reddish abrasion of size 3x2 cm present over the back of shoulder joint.
o. Multiple reddish abrasion in an area of 10x6 cm, present over the left side outer middle aspect of chest. p. Reddish abrasion of size 4x2 cm, present over the outer aspect of left iliac fossa.
q. Reddish abrasion size 10 x6 cm, present over the front of left upper thigh near the inguinal reason.
r. Multiple reddish abrasion in an area of 6x6 cm, present State Vs. Sumitra etc. PS Narela FIR No.192/07 175 62 over the left knee joint.
s. Incised wound irregular shape with abraded margin of size 3.5x12xbone deep present over the left side below the mandibular margin. (wrongly mentioned by me due to inadvertent as injury No.18 again).
t. Incised wound oif size 1.5x.5x.5 cm irregular shape with abraded margin, present at the angle of left mandible. (wrongly mentioned by me due to inadvertent as injury No.19).
On internal examination, it was found that there was extravasation of blood found in the both temporal region under the scalp with bruising of temporalis muscle and front of forehead. Skull intact, brain congested, petechial haemorrhages present in the brain seen on cut section. Massive extravasation of blood found in the front and sides of neck with detachment of trachea from the attachment State Vs. Sumitra etc. PS Narela FIR No.192/07 175 63 subcutaneous tissues bruised and lacerated fracture of hyoid bone and thyroid cartilage present with bruising of muscles of neck. Oedema of glottis present extravasation of blood found in both front of chest. Both lungs congested and oedematus. Petechial haemorrhage present in both lungs present in the interlober surface of both lungs. Heart congested, all internal organ congested, stomach contains brownish liquid material about 150 grams, no characterstic smell found. Laceration of upper end of innal canal present of size 1.5 cm x .5 cm.
He further opined the cause of death in this case, as asphyxia, as a result of antemortem manual strangulation, sufficient to cause death in ordinary course of nature, injury No. 5, 8, 18 and 19 (now No.19 & 20 in examination in chief) was opined to have been caused by sharp irregular shape cutting State Vs. Sumitra etc. PS Narela FIR No.192/07 175 64 object. All the rest of the injuries were opined to be have been caused by blunt force impact. Time since death was opined as about 1½ days, which would be at the time of conducting the postmortem.
He further proved his postmortem report, Ex.PW1/A, and in response to the court question, he stated that possibility of involvement of more than one person cannot be ruled out, keeping in view the nature and number of injuries involved, but in the same breath, he stated that it could also be caused by one person.
48. The aforesaid postmortem report corroborates the time of death, as well as the injuries suffered by the deceased, and the main cause of death has been opined as asphyxia, as a result of manual strangulation, sufficient to cause death in ordinary course of nature. In the postmortem report at least 20 injuries were found, which were State Vs. Sumitra etc. PS Narela FIR No.192/07 175 65 opined to have been caused by some sharp irregular shape cutting object. As per PW6 Chanderpal, deceased was having good health and better physique than A2.
49. Though, PW1 has stated that the possibility of involvement of more than one person cannot be ruled out, in the same breath, he has stated that keeping in view the nature and number of injuries, it could also have been caused by one person, but common sense reasoning tells us that such injuries are not possible to have been given by one person, even though the deceased was heavily drunk at that particular time, even then there would have been natural reflex reaction of the deceased to save himself by offering some resistance. Therefore, it was not possible for one person to inflict injuries and at the same time strangulate him to death. Therefore, one person must have neutralized him by pinning him, while other inflicted or gave the State Vs. Sumitra etc. PS Narela FIR No.192/07 175 66 fatal blow. Therefore, the postmortem report also corroborate the prosecution story.
50. Regarding the common intention of the accused persons, it has been held in judgment Mahabir Vs. State AIR 1963 SC 118. "The meaning of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself". It has been also held in judgment Mehboob Shah Vs. Emperor AIR 1945 PC 118. "To invoke the aid of sec. 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then the liability for the crime may be imposed on any one of them persons in the same manner as if the act were done by him alone". In view of the aforesaid judgment the individual acts of all the accused persons State Vs. Sumitra etc. PS Narela FIR No.192/07 175 67 can be said to be the joint acts of each other by principle of agency, attracting common intention U/s 34 IPC.
51. From the aforesaid discussion, as held in the various circumstances, discussed above an inference can be drawn that both the accused persons are liable for causing the death of the deceased, but it is not clear, who is substantively liable for causing death of the deceased i.e who was the principle actor and who was the person, who was vicariously liable for the individual act(s) of other by the principle of agency for the act done in furtherance of their common intention. Therefore, in these circumstances, both the accused persons are held to be vicariously liable for the acts of each other for causing the death of the deceased U/s 34 IPC.
52. The Ld. Defence counsel had also taken the defence that the brothers/family members of the deceased had killed him for State Vs. Sumitra etc. PS Narela FIR No.192/07 175 68 eliminating him from the share of his agricultural land, at his ancestral place and for this reason also A1 was falsely implicated in this case, so that she may also not claim her share being the wife/legal heir of the deceased.
53. The defence has failed to plausibly establish this plea on the record, as PW3 in his examinationinchief stated that the deceased before getting married disposed off the agricultural land of his share and thereafter married A1 at Bengal and in his crossexamination he stated that he had told the I.O that his brother had sold some portion of his land prior to his marriage and he had also hypothecated small portion of his land, which he sold after marriage after getting it released from mortgage, after there was a family partition of the agricultural land. Similarly, PW16 Mahipal, the cousin brother of the deceased was also examined on the said aspect. He also stated that State Vs. Sumitra etc. PS Narela FIR No.192/07 175 69 the deceased married A1, after selling his land in the village and in his crossexamination, he stated that once D finished his money, which he got after selling the land, he was left with nothing, therefore, he came to Delhi. He denied the suggestion that there was any quarrel between the family of D and D, when he sold his land. There has been no effective crossexamination of these witnesses on this aspect. Therefore, their assertion in this respect goes unchallenged.
54. The Ld. Defence counsel had not called or summoned any revenue witness from the native place of the deceased in support of his defence that the deceased was killed by his brothers and family members, as they were going to be the beneficiaries of the share of his land, which was left in his native place in the name of the deceased, being their legal heirs, as no such evidence was brought before the court. In these circumstances, the defence version does State Vs. Sumitra etc. PS Narela FIR No.192/07 175 70 not appear to be plausible and same is not credible.
55. From the aforesaid detailed analysis of circumstantial evidence lead by the prosecution, all the circumstance(s) relied upon by the prosecution, including the main circumstance of last seen have been clearly established by the prosecution, as discussed above.
56. Now, it has to be seen whether from the aforesaid circumstance(s), which have been established by the prosecution beyond any sort of doubt, whether the circumstance so established unerringly points towards the guilt of the accused and whether the circumstances taken collectively are incapable of explanation of any reasonable hypothesis, save that of guilt of the accused and whether the circumstances proved by the prosecution form a chain so complete, so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must State Vs. Sumitra etc. PS Narela FIR No.192/07 175 71 show that in all human probability the act must have been done by the accused.
57. From the aforesaid discussion, the prosecution has been able to establish all the circumstances against both the accused persons beyond any sort of doubt. From the aforesaid chain of circumstantial evidence discussed above, the only inference, which can be drawn is that both the accused persons A1 and A2 had killed the deceased D in furtherance of their common intention.
58. Applying the principle laid down in the judgment in Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 (Supra), and also the judgment of Hon'ble Supreme Court in Hanumant Vs. State of Madhya Pradesh, 1952 SCR 1091=AIR 1952 SC 343 (Supra), I am of the considered view, that it has been proved beyond any reasonable doubt by the prosecution, by State Vs. Sumitra etc. PS Narela FIR No.192/07 175 72 unimpeachable evidence by aforesaid chain of circumstances as discussed above, which is so complete, which only leads to the conclusion, that it was only the accused persons A1 and A2, who had committed the murder of deceased D and no one else and the circumstantial evidence lead on the record, is absolutely inconsistent and incompatible with the innocence of the accused persons and there is no circumstance or the possibility that any one else might have committed the aforesaid ghastly act. Therefore, the circumstance(s) proved by the prosecution from a chain so complete, which leads only to the conclusion, regarding the culpability of the accused persons A1 and A2, regarding the murder of deceased D.
59. Regarding the offence under Section 201 IPC, the prosecution has to prove the following ingredients: (1) An offence has been committed;
(2) The accused knew of or had reason to believe that State Vs. Sumitra etc. PS Narela FIR No.192/07 175 73 such offence has been committed;
(3) The accused caused disappearance of the evidence thereof;
(4) The accused gave false information in respect thereof;
(5) The accused knew or had reason to believe the same to be false;
(6) The accused did so with intention to screen the offender from legal punishment.
60. In the present case, the prosecution has failed to prove the recovery of blood stained shirt belonging to D at the instance of A1. Consequently, there is no evidence that A1 concealed the said evidence connected with the commission of the offence in order to screen herself from legal punishment. Regarding the recovery of the blood stained clothes of both the accused persons at their instance, the same does not attract section 201 IPC, as it has been held in judgment AIR 1979 SC 1232.
State Vs. Sumitra etc. PS Narela FIR No.192/07 175 74 "Though Kalawati was relevant to the point, the attention of the Court was not invited to it. It is, however, submitted that the view expressed in Harishchandrasingh Sajjansingh Rathod is much more acceptable and lays down correct law for more than one reason. Firstly, as observed in Rathod HS, 'there is no law which casts a duty on a criminal to give information which would incriminate himself'. Secondly, the language used in sections 201 and 202 does not suggest that the sections would apply to a person who has committed an offence. Thirdly, the phrase 'knowing or having reason to believe that an offence has been committed' clearly indicate that the actual culprit is a person other than the one who knows or has reason to believe that an offence has been committed. Had it been the legislative intent, it would not have used the above words as they were State Vs. Sumitra etc. PS Narela FIR No.192/07 175 75 unnecessary."
61. In view of the said judgment, which is squarely applicable to the facts of the present case, it is clear that Section 201 would not apply to person(s), who have committed an offence and it indicates a person other than actual culprit. Therefore, no offence U/s 201/34 IPC is made out against both the accused persons.
62. From the probative force of the entire mass of the prosecution evidence, lead above, which has strong probative value on the probative scale(s), where the probabilities of happening any event are measured. The only inference, which can be drawn is that both the accused persons had killed the deceased D in furtherance of their common intention. Consequently, both the accused persons stand convicted U/s 302/34 IPC.
Now, to come up for hearing on the point of sentence.
Announced in the open court (Sanjeev Aggarwal)
On 06.06.2011 Addl. Sessions Judge
Rohini Courts: Delhi.
State Vs. Sumitra etc. PS Narela FIR No.192/07 175
76
IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGEV: ROHINI COURTS: DELHI SC No.32/08 ID No.02404R0355352007 FIR No.192/07 PS Narela U/s 302/34 IPC 09.06.2011 State Vs. 1. Sumitra W/o Late Hari Om, R/o Gali No.11B, Savtantra Nagar, Narela, Delhi.
2. Santosh Kumar S/o Shyam Babu, R/o Gali No.9B, Savtantra Nagar, Narela, Delhi.
ORDER ON THE POINT OF SENTENCE: Present: Shri A.K. Srivastava, ld. Addl. PP for the State.
Both the convicts are present from JC with Ld. Counsel Sh. A .K. Khushwaha, for convict Santosh Kumar, who had also appeared as Amicus for convict Sumitra.
State Vs. Sumitra etc. PS Narela FIR No.192/07 175 77 It is submitted by the Ld. Counsel for the convicts that convict Santosh Kumar has no previous history of involvement in any other case, and he has to look after his old and ailing parents. Therefore, lenient view may be taken against him.
Regarding the convict Sumitra, it is submitted that she also does not have any history of previous involvement in any other case, she has to look after her minor daughter, who is also in jail with her, aged 6 years, besides two sons, who are in the custody of her in laws. Therefore, it is prayed that lenient view may be taken against her.
On the other hand, Shri A.K. Srivastava, Ld. Addl. PP for the state submits that strict punishment should be awarded to both the convicts, as they had killed deceased Hari Om brutally, as their illicit relations were not to his liking, therefore, they eliminated him. State Vs. Sumitra etc. PS Narela FIR No.192/07 175 78 He further submits that strong message should go in the society, that such kind of crimes do not pay.
I have gone through the rival contentions.
In the present case, both the convicts had killed Hari Om, who was none other than the husband of convict Sumitra and friend of convict Santosh Kumar by firstly stabbing his conscious, as both of them had developed illicit relations with each other, right under the nose of deceased Hari Om, which was not to his liking. Thereafter, convict Sumitra along with her paramour killed Hari Om in a brutal manner without thinking about the plight of her children, about whom she is now saying that she wants to look after. The gruesome manner in which they had killed the deceased, does not call for any leniency. Therefore, the interests of justice shall be met, if both the convicts are sentenced to Rigorous Imprisonment for life under State Vs. Sumitra etc. PS Narela FIR No.192/07 175 79 Section 302 IPC and they are further sentenced to pay a fine of Rs. 1000/ each under Section 302 IPC. In default of payment of fine, SI for 1 month each. The copy of the judgment and that of point of sentence be given to the convicts free of cost. Ld. Amicus Curiae on behalf of convict Sumitra is discharged from the present case, with the words of appreciation for the able assistance rendered by him, during the trial of the present case. File be consigned to record room.
Announced in the open court (Sanjeev Aggarwal)
On 09.06.2011 Addl. Sessions Judge
Rohini Courts: Delhi.
State Vs. Sumitra etc. PS Narela FIR No.192/07 175