Delhi District Court
State vs : Kuldeep Etc. on 31 March, 2009
1
IN THE COURT OF SH. BHARAT PARASHAR:ASJ:ROHINI:DELHI
S.C. NO.141/06
STATE VERSUS : KULDEEP ETC.
FIR NO.168/04
PS KANJHAWALA
U/S 364/302 IPC.
Order on Sentence
Vide my separate detailed judgment dated 26-3-09 accused
Kuldeep has been convicted of the offence U/S 364/302 IPC.
I have heard ld. APP for the State, convict himself and ld.
Counsel/Amicus Curiae Sh. Pradeep Singh for convict on the point of
sentence.
It was submitted by ld. Counsel for convict that the convict is a
young boy, aged about 22 years and has a six year old daughter to look-
after. It was further submitted that convict has no previous criminal record
and he has already remained in jail for a period of about five years during
the course of trial and that his conduct has completely remained
aboveboard. It was also submitted that even as per the prosecution case
the convict had thrown Nidhi inside the valley presuming her to be dead
and there was no knowledge on the part of convict that Nidhi will remain
alive and that too entangled in the bushes. It was thus prayed that a
lenient view may kindly be taken.
On the other hand, ld. APP has prayed for imposition of
extreme penalty of death upon the convict stating the present case to be
one falling under the category of rarest of rare cases. It was submitted
that Nidhi had gone along with convict after placing trust in him to sort
S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA
2
out their matrimonial differences and to sail smoothly thereafter in their
matrimonial life. It was thus submitted that convict betrayed the said faith
of Nidhi and in a very brutal manner and in diabolical circumstances
committed her murder by throwing her inside the valley. It was submitted
that the mental as well as physical agony through which Nidhi must have
gone through when she remained entangled in the bushes in the valley
cannot be brushed aside. It was stated that the convict acted in a most
cruel manner and too in a preplanned fashion. It was thus prayed that
convict be awarded the maximum punishment of death.
I have carefully perused the record.
Undoubtedly, the administration of criminal justice system
which earlier laid great emphasis on the deterrence theory is drifting away
towards the theory of reformation. However, as has been observed over a
period of time even by the Higher Courts of the Land that in the absence
of a proper system in place so as to ensure reformation of the convict, the
purist theory of reformation may also be held to be neither justifiable, nor
beneficial either to the administration of criminal justice system or even for
the convict himself. It is also equally true that off-late the theory of
victimology is also gaining ground. The plight of the victim which she must
have undergone at the time of commission of crime or later on that of the
close relatives of the victim, who must have been undergoing all this
trauma since the commission of the offence can also be not overlooked.
However, it is well settled that for a case to fall under the
category of rarest of rare cases, the facts thereof must depict extreme
S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA
3
brutality and the fact that it was committed in diabolical circumstances.
However, in the case in hand the convict undoubtedly
committed the murder of his wife by throwing her inside the valley and
thereby betrayed her trust . However, though the manner of committing
murder of Nidhi by convict was cruel and brutal in nature but, for that
matter cruelty and brutality are inherent in every case of murder. The
record does show that the knowledge that Nidhi will remain alive despite
being thrown inside the valley and that too while remaining entangled in
the bushes cannot be attributed to the convict as on his part he left no
stone unturned in killing her.
Thus, in order to arrive at a just sentence the court has not only
to effect and maintain a balance between the extenuating and
mitigating circumstances as have been brought to the notice of the court
besides also the nature of evidence which has been led by the
prosecution.
I accordingly, keeping in view the overall facts &
circumstances of the case coupled with the submissions made besides
the conduct of convict during the course of trial, am of the considered
opinion that the present case does not fall in the rarest of rare cases.
I accordingly hereby sentence convict Kuldeep to rigorous
imprisonment for a period of ten years and to pay a fine of Rs.25,000/- for
the offence U/S 364 IPC,
In default of payment of fine, convict shall undergo simple
imprisonment for a period of six months.
S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA
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As regards the offence U/S 302 IPC I further sentence convict
Kuldeep to rigorous imprisonment for life and to pay a fine of Rs.50,000/-.
In default of payment of fine convict shall further undergo simple
imprisonment for a period of one year.
It is further directed that both the substantiative period of
sentences of imprisonment of convict Kuldeep shall run concurrently.
Benefit of Section 428 Cr.PC shall be given to the convict.
A copy of judgment as well as that of order on sentence be
given free of cost to the convict and another be attached with his jail
warrants.
File be consigned to Record Room.
Announced in the open court on 31-3-09.
(BHARAT PARASHAR)
ADDITIONAL SESSIONS JUDGE-VI (O)
ROHINI COURTS:DELHI
*rk
S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA
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IN THE COURT OF SH. BHARAT
PARASHAR:ASJ:ROHINI:DELHI
S.C. NO.141/06
STATE VERSUS : 1- KULDEEP, >CONVICTED
S/O SH. RAGHUBIR SINGH,
R/O VILLAGE SAMALKHA,
DISTT. PANIPAT,
HARYANA.
2- RAGHUBIR SINGH, >ACQUITTED
S/O SH. MOLLARH,
R/O VILLA GE RAGLU GARHI,
GANNOUR, DIS TT. SONEPAT.
3- SMT. KRISHNA, >ACQUITTED
W/O SH. RAGHUBIR,
R/O VILLA GE RAGLU GARHI,
GANNOUR, DIS TT. SONEPAT.
FIR NO.168/04
PS KANJHAWALA
U/S 364/302/498A/34 IPC.
DATE OF INSTITUTION IN SESSIONS COURT:22-2-2006.
DATE ON WHICH JUDGMENT RESERVED:7-3-2009.
DATE ON WHICH JUDGMENT PRONOUNCED 26-3-2009.
JUDGMENT
Briefly stated the case of the prosecution as unfolded by the report u/s 173 Cr.PC is as under :
"One Balwant Singh, R/o Village Madanpur, Dabas married his two daughters, namely, Nidhi and Namita with two real brothers i.e Kuldeep (accused S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 6 herein) and Pradeep on 24-2-2002 as per Hindu Rites and Ceremonies. After the marriage both Nidhi and Namita shifted to their matrimonial home at village Samalkha, Distt. Panipat, Haryana where their parents-in-law, namely, Raghubir Singh and Smt. Krishna were also residing.
However, the matrimonial life of Nidhi with accused Kuldeep did not sail smoothly as her husband and her parents-in-law used to often demand dowry. They used to demand Rs.50,000/- and a motor cycle.
Kuldeep often used to leave Nidhi at her parental house. Subsequently, on 30-11- 2002 Nidhi gave birth to a girl child, namely, Ritika. After one month of the birth of child accused Kuldeep left her at her parental home stating that he will not again come to take her back as his demands were not being fulfilled by them.
He further stated that thereafter on 25-6- 2004 Kuldeep all of a sudden came and asked for forgiveness stating that he was mistaken and that now he wishes to take S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 7 back Nidhi. He accordingly took her to her house on 25-6-2004 but, again left her back on 5-7-2004 stating that he was having some quarrel with his younger brother Pradeep and thus he intends to reside separately. Thereafter, on 9-7-2004 Kuldeep again came to his in-laws house at around 4.30pm and after staying for ten minutes only he took Nidhi along with him stating that he wants to show her some house in Narela where they intend to reside now. He further stated that he will drop back Nidhi after sometime.
Accordingly, Nidhi went along with Kuldeep leaving her child at her parental house itself but, she did not return back for about 3-4 days. However, when till 12/7/2004 Nidhi did not return back then Balwant Singh along with his 2-3 relatives went to the house of Kuldeep at Samalkha where Kuldeep and his mother Smt. Krishna met them but, Nidhi was not there. Upon inquiry about Nidhi, Kuldeep could not give any satisfactory answer S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 8 and thus suspecting that Kuldeep might have killed Nidhi, Balwant Singh lodged a complaint with SHO, PS Kanjhawala narrating all the aforesaid facts. Thus, on the basis of the aforesaid statement of Balwant Singh, a rukka was prepared by SI-Hansraj and a case for the offence U/S 498A/364 IPC was got registered at PS-
Kanjhawala. On 13-7-2004 accused Kuldeep was interrogated by SI Hansraj and was arrested in this case. Accused Kuldeep thereafter made a disclosure statement stating that he has strangulated his wife on the way to Mussoorie from Dehradun and had thereafter thrown her dead body in a valley. He further stated that he had thrown the 'sleepers' and 'chunni' of Nidhi in the bushes nearby. Accused was thus produced before the court of ld. M.M. and his five days police custody remand was obtained. Offence under Section 302 IPC was also thus invoked against the accused. Inspt. Dharam Pal Singh, who S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 9 was the SHO, PS Kanjhawala took over the subsequent investigation. A police party led by Inspt. Dharampal Singh thus accompanied accused to Mussoorie. On 14-7-2004 accused while going from Dehradun to Mussoorie pointed out a place to the police party about 3km prior to Mussoorie stating that he had killed Nidhi over there and thrown her body at that place on the evening of 11-7-2004.
One pair of leather sleeper and chunni were recovered from over there and were taken into possession after sealing them in a pullanda with the seal of "DPS". At that time one Pramod Kumar and Rajesh, brother of Nidhi were also accompanying the police party and they had identified the said chunni and sleepers to be that of Nidhi. Inspt. Dharampal thereafter informed about the disclosure statement of Kuldeep to the local area police i.e at PS Mussoorie. SI Ashok Arora, SO-PS-
Mussoorie also joined the police party and he also conveyed the information about S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 10 the incident to SDM-Mussoorie as the alleged death of Nidhi had taken place within seven years of her marriage. The police party comprising of Delhi Police Officials and that of PS Mussoorie came back to the said place which fell in the area of "Bandh Suman Estate", Mussoorie. Accused Kuldeep led them to about 400-500 meters towards down side in the South direction in the forest and from where Nidhi was found to be lying in the bushes. However, the police party noticed some movement in the body of Nidhi and accordingly with great efforts they pulled out Nidhi from inside the said bushes. As Nidhi was found to be still breathing so, on the directions of area SDM she was immediately rushed to "Grace Trinity Hospital", Landoore, Mussoorie. Doctors over there however stated Nidhi to be unfit for statement but, unfortunately at around 10pm Nidhi was declared dead. Inquest proceedings were thereafter carried out by the area S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 11 SDM-Sh. KP Singh and the body was sent for postmortem examination to Dehradun.
IO/Inspt. Dharam Pal prepared the site plan of the place of occurrence and recorded statement of various witnesses.
Thereafter, while returning back to Delhi accused Kuldeep led the police party to "Kallumal Dharamshala" in Dehradun stating that he along with Nidhi had stayed over there on the night intervening 10/11-7-2004 while mentioning his name in the register of dharamshala as Sunil, a resident of Saharanpur, Meerut, UP. The watchman of the dharamshala, namely, Darshan Lal Saklani also identified accused to be the person, who had stayed in his dharamshala. The visitors register of the dharamshala along with the cash memo were also taken into possession by the IO. The police party thus returned back to Delhi. Thereafter, on 22- 7-2004 accused Raghubir Singh and Smt. Krishna, the parent-in-laws of Nidhi were also arrested from Village Madanpur, S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 12 Dabas i.e from the house of parents of Nidhi. Thus, upon completion of necessary further investigation, challan was prepared against all the three accused persons for the offence U/S 498A/364/304B/302/34 IPC and was sent to court for trial".
Upon committal of the case to the court of Sessions, charge for the offence U/S 498A/364/302 IPC was framed against accused Kuldeep only by the then ld. Predecessor of this court but, the learned Judge framed charge for the offence U/S 498A/34 IPC only against accused Raghubir Singh and Smt. Krishna. They both were however not charged by him for the offence u/S 364/302 IPC. The accused persons however pleaded not guilty to the charges so framed against them and claimed trial.
Prosecution thereafter in order to prove its case examined sixteen witnesses in support of its case. All the accused persons were thereafter examined u/S 313 Cr.PC. Accused Raghubir Singh and Smt. Krishna thereafter examined one Satbir as DW1 in their defence.
PW1 Rajesh Dabas, S/o Karan Singh was the uncle of Nidhi, who had reached Musoorie on 15-7-2004 upon receiving information about the death of Nidhi and had joined the inquest proceedings over there.
S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 13 PW2 Rajesh, S/o Ajit Singh was a neighbourer of Nidhi and who claimed himself to be very close to the family of the parents of Nidhi. He further stated that as the brothers of Nidhi were quite young so, he used to visit the in-laws house of Nidhi on various occasions along with the other relatives. He thus also stated that after the marriage of Nidhi he had gone to the house of accused persons many times and when on 30-11- 2002 he on the occasion of birth of the child of Nidhi had gone there with gifts in "chuchak ceremony" then accused Kuldeep had asked for a Maruti car and Rs.50,000/-. He further stated that when again after one month he went to the house of accused persons then the said demand was repeated by accused Kuldeep and his parents. He further stated that after about 15-20 days accused Kuldeep left Nidhi at her parental house where she stayed for about 1½ years. He also stated that Balwant Singh, the father of Kuldeep also used to tell about the demands being made by the accused persons. Though, he stated that Nidhi herself never told anything in that regard. He further stated that on 25-6-2004 accused Kuldeep had come to their village and had taken Nidhi along with him and that he had dropped them in their village in his car. He further stated that again on 5-7-2004 accused Kuldeep left Nidhi and her daughter at her parental house and on 9-7-2004 at around evening time accused Kuldeep came over there and took Nidhi along with him on the ground that they are going to see a house in Narela. He further stated that when till 12-7-2004 Nidhi did not return then he along with Balwant Singh and 2/3 other persons went to the house of accused persons but, when accused S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 14 did not give any proper and satisfactory reply so a complaint was made with PS Kanjhawala by them. He thereafter reiterated the prosecution story as regards the arrest of accused and the subsequent recovery of Nidhi from the bushes near Mussoorie in the "valley".
PW3 Dr. Avinash Shastri was the Director, Trinity Grace Hospital, Landoore, Mussoorie, Utranchal where Nidhi was initially taken after her recovery. He stated that when Nidhi was brought to his hospital at that time she was unconscious and was not responding to external stimuli. He also stated that her hair were muted with twigs, leaves and mud. He also stated that there were bruises all over the body of Nidhi with scratches over her neck. He found her to be severally dehydrated and her eyes congested and red with foul smelling fetor and the finger tips cynose (bluish). He however stated that Nidhi was not found to be fit for statement but, despite their best efforts she could not be revived and she finally succumbed to her injuries at around 10.05pm on 14-7-2004.
PW4 Sh. KP Singh, SDM had reached the spot from where Nidhi was recovered and seeing her still breathing had referred her to Trinity Grace Hospital, Mussoorie. Later on, after the death of Nidhi he had carried out the inquest proceedings and sent her body for postmortem examination to Dehradun.
PW5 Darshan Lal Saklani was the watchman at Lala Kallumal Dharamshala where accused had allegedly stayed along with Nidhi on the night intervening 10/11-7-2004. He though admitted the record of his Dharamshala which was seized by the police but stated that the police S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 15 had come in his Dharamshala twice for interrogation in a case and on one occasion one boy in whose name viz Sunil the slip was prepared at Dharamshala was also accompanying them. He however stated that he was unable to identify the said boy now as a number of people visit his dharamshala and as the matter was 2-3 years old. He also stated that he had not seen any lady with said Sunil when he had stayed at his Dharamshala. He also stated that the original register has since been destroyed but, the photocopy of the same Ex.PW5/B was seized by the police.
This witness was accordingly declared hostile by ld. APP and was cross-examined at length. In his cross-examination, he stated that the boy, who had come along with the police to his dharamshala had himself stated to the police that he had stayed in the dharamshala by the name of Sunil. He however stated that the said boy was in Muffled face. He further stated that police had not shown him the photograph of any lady as the one, who was accompanying said Sunil.
PW6 Balwant Singh was the father of Nidhi. In his deposition, he reiterated the prosecution story while proving his complaint Ex.PW6/A lodged with the police.
PW7 ASI Raghvir Singh was the duty officer, PS Kanjhawala, who had recorded FIR Ex.PW7/A. PW8 Seema was yet another sister of Nidhi. She also in her deposition reiterated the prosecution story while corroborating the deposition of her father Balwant Singh (PW6) in material particulars. She S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 16 also deposed that on 9-7-2004 she had accompanied accused Kuldeep and Nidhi up to the bus stand of their village when Kuldeep had come to take Nidhi along with her.
PW10 Smt. Sudesh was yet another neighbourer of Balwant Singh. She stated that on 9-7-2004 while she was standing at the door of her house then, she had seen accused Kuldeep going along with Nidhi from the gali at around 4.15/4.30pm. She further stated that at that time Seema, the sister of Nidhi was accompanying them. She further stated that on 13-7-2004 the entire village came to know that Nidhi has been murdered. She also stated that Nidhi was staying at her parental house for about 1½ years and that Nidhi used to tell her that there was some problem from her in-laws house with her regarding some "lain-dain".
PW12 Captain Hemant Bharadwaj was the then Medical Officer, Doon Hospital, Dehradun, who had carried out the postmortem examination upon the dead body of Nidhi on 15-7-2004 vide his report Ex.PW12/A. PW13 ASI Kanwal Singh was the DD writer on 13-7-2004 at PS Kanjhawala. On that day SI - Hansraj had informed him that five days police custody remand of accused Kuldeep has been obtained and that a team headed by SHO/Inspt. Dharampal Singh and comprising of other police officials and accused Kuldeep has left for UP in a private vehicle carrying a pistol and eight live cartridges. He had accordingly reduced the information into writing vide DD No.22A (Ex.PW13/A).
S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 17 PW14 Pramod Kumar was a cousin of Nidhi, who had also accompanied the police party to U.P on 13-7-2004 and was a witness to the recovery of Nidhi and seizure of a pair of sleeper and a chunni. Subsequently, he had participated in the inquest proceedings as carried out by the area SDM at Mussoorie.
PW16 SI Ashok Kumar Arora, was the SO at PS Mussoorie, Dehradun, who had joined the proceedings along with Inspt. Dharampal after the Delhi police officials conveyed them the information about their arrival pursuant to the alleged disclosure statement of Kuldeep and recovery of a pair of sleepers and chunni belonging to Nidhi at the instance of Kuldeep. He thus reiterated the prosecution story while deposing about the subsequent proceedings which took place leading to the recovery of Nidhi and getting her admitted at Trinity Grace Hospital on the direction of area SDM. He further stated about the fact that the doctors at the hospital declared Nidhi to be unfit for statement and later on at around 10pm declared her as dead. He also deposed about the inquest proceedings carried out by the SDM and the subsequent postmortem examination carried out by CMO-Dehradun.
PW15 Inspt. Dharampal was the IO of the case, who had taken over the investigation of the matter after Section 302 IPC was also invoked against the accused. He thus in his deposition reiterated the prosecution story while proving the various documents/memos prepared by him during the course of his investigation.
S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 18 PW9 SI Hansraj was the initial IO of the case, who had got the present case registered upon the complaint of Balwant Singh. Later on, he had also remained associated with the subsequent investigation along with Inspt. Dharampal. He thus also reiterated the prosecution story in his deposition while corroborating the deposition of PW15 Inspt. Dharampal in material particulars. He also deposed about various documents/memos prepared in his presence by the IO.
PW11 Ct. Bharat Veer Singh was a police official of PS Mussoorie, who along with SI Ashok Arora had joined the proceedings with IO/Inspt. Dharampal. He had taken the dead body of Nidhi along with the inquest papers to Doon Hospital, Dehradun for getting the postmortem examination carried out. Subsequently, the dead body was handed over to the relatives of Nidhi, namely, Rajesh and Pramod vide memo Ex.PW1/A. All the accused persons thereafter in their statements U/S 313 Cr.PC however stated the case of the prosecution to be false and the prosecution witnesses to be deposing falsely.
Accused Raghubir Singh and Smt. Krishna thereafter examined DW1-Satbir (Sarpanch) of their village in their defence. He claimed to have attended not only the marriage of accused Kuldeep and his brother with Nidhi and his sister but, also stated that he was present even during the course of earlier talks which took place before the marriage. He further stated that at no point of time there was any talk with regard to dowry in connection with the marriage. He further stated S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 19 that even after the marriage he happened to meet father-in-law of accused Kuldeep but, no such instance of demand of dowry or subjecting Nidhi to cruelty was ever brought to his notice.
I have heard ld. APP for State, ld. defence counsel Sh. DS Kohli for accused Raghubir Singh and Smt. Krishna and ld. Amicus Curiae Sh. Pradeep Singh for accused Kuldeep at length.
Learned defence counsel Sh. DS Kohli for accused Raghubir Singh and Smt. Krishna vehemently argued that the allegations against accused Raghubir Singh and Smt. Krishna were general and vague in nature. It was submitted that no specific instance of demand of dowry with any particular date or time when the same was made by accused Raghubir Singh and Smt. Krishna have been stated to by the witnesses. It was also stated that one other daughter of complainant Balwant Singh is still residing in the house of accused persons and there has not been any kind of complaint by the said girl against her in-laws till date. It was thus submitted that this fact in itself goes to show that no demand of dowry was ever made by accused Kuldeep and Raghubir Singh and all such allegations now being levelled against them were per se false in nature.
Ld. Amicus Curiae Sh. Pradeep Singh for accused Kuldeep also while reiterating the aforesaid contentions of ld. Counsel Sh. DS Kohli qua the allegations of demand of dowry and subjecting Nidhi to cruelty or harassment for or in connection with demand of dowry also pointed out a number of contradictions in the prosecution story stating them to be S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 20 so inherent in nature so as to make the entire prosecution case to be highly improbable. It was submitted that the very story of accused Kuldeep having taken away Nidhi from her parental house on 9-7-04 for few hours and thereafter Nidhi not returning back to her house for about three days without raising any anxiety to the parents of Nidhi itself is highly improbable. It was submitted that there was no reason that the parents of Nidhi would not have got worried when Nidhi did not return back on 9-7- 2004 itself when she had left her daughter even over there stating that she will return back in few hours. It was thus submitted that Nidhi in fact had eloped away with some other boy and was in fact killed by that boy at Mussoorie and now in order to save their face, the parents of Nidhi have levelled false allegations against the present accused. A number of contradictions and improvements in the deposition of PW2 Rajesh, PW6 Balwant Singh, PW8 Seema and PW10 Smt. Sudesh were shown so as to show that whatever these witnesses were now deposing was completely false and fabricated version. It was also pointed out that the raiding party members which had allegedly recovered Nidhi have also contradicted each other on a number of scores and even as regards the time when SDM-Mussoorie had reached the spot. It was also submitted that PW5 Darshan Lal, the watchman of Lala Kallumal Dharamshala has also not supported the case of the prosecution and thereby raising grave shadows of doubts as to the claim of the police. The prosecution was thus stated to have miserably failed in proving its case against all the accused persons. They were thus prayed to be acquitted.
S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 21 On the other hand, ld. APP strongly opposed the contentions of ld. defence counsels stating that there have been specific allegations of demand having been made by accused Kuldeep and his parents from the relatives of Nidhi as well as from Nidhi herself. It was also stated that the factum of accused Kuldeep having taken Nidhi along with him also stands well proved from the deposition of PW2 Rajesh, PW6 Balwant Singh, PW8 Seema and PW10 Smt. Sudesh. The subsequent recovery of sleepers and chunni of Nidhi at the instance of Kuldeep followed by recovery of Nidhi herself from the bushes about 400-500 meters down the hill from inside the bushes clearly establishes beyond reasonable doubt that Nidhi was thrown over there by Kuldeep so as to commit her murder. The contradictions as highlighted by learned defence counsels were stated to be minor in nature. It was thus stated that the prosecution has been successful in proving its case against all the accused persons. The accused persons were thus prayed to be convicted.
I have carefully perused the record At the outset, I may state that the case of the prosecution has to be considered in two separate compartments.
Firstly, as against accused Raghubir Singh and Smt. Krishna Devi, who have been charged only for the offence U/S 498A IPC and secondly as against accused Kuldeep, who besides being charged for the offence u/S 498A IPC has also been charged for the offence U/S 364/302 IPC. I may also like to state at the threshold itself that the case of the prosecution qua accused Raghubir Singh and Smt. Krishna Devi can S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 22 be independently analyzed and adjudicated upon irrespective of the charge of murder as framed against accused Kuldeep.
Thus, I would first like to deal with the case of the prosecution qua the charge for the offence U/S 498A/34 IPC. In this regard, we have primarily on record the deposition of PW2 Rajesh, S/o Ajit Singh, PW6- Balwant Singh, PW8 Seema and PW10 Smt. Sudesh. It is the admitted case of all the prosecution witnesses that at the time of marriage no demand of any dowry etc was made. It is also the case of all the aforesaid witnesses that till a period of three-four months after the marriage Nidhi was happy in her matrimonial home. However, PW6-Balwant Singh, father of Nidhi stated that after 3-4 months of the marriage, the accused persons made a demand of a maruti car from Nidhi as well as from him but, he expressed his weak financial position to fulfill the said demand. He further stated that all the three accused persons thereafter started harassing and torturing Nidhi. Subsequently, on 30-11-2002 Nidhi gave birth to a girl child. It is on the occasion of the birth of the child that PW2 Rajesh, S/o Ajit Singh, who was the neighbourer of the father of Nidhi claimed to have gone to the house of accused persons at the time of "chuchak ceremony". He further stated that at that time accused Kuldeep asked him as to why he has not brought a maruti car and Rs.50,000/-. He however claimed ignorance in this regard to Kuldeep. He further stated that again after one month, he went to the house of accused Kuldeep and accused Kuldeep and his parents repeated the same demand from him and upon which he returned back to his house. He further stated that after about 15-20 days S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 23 accused Kuldeep left Nidhi at her parental house and where she stayed for a period of about 1½ years. He further stated that Balwant Singh (PW6) used to tell him that accused persons are making demand and are harassing Nidhi on account of non-fulfillment of their demands. On the other hand, PW6 Balwant Singh stated that after about one month of the birth of the child of Nidhi accused Kuldeep brought her to his house and left her over there stating that he will never take her back as his demand of maruti car was not being fulfilled. It will be worthwhile to mention over here that Balwant Singh (PW6) was completely silent as regards any demand having been made by the accused persons at the time of "chuchak" ceremony as was stated to by PW2 Rajesh.
PW8 Seema, who was a sister of Nidhi however stated that after the initial 2-3 months of the marriage of Nidhi, the accused persons started making demands stating that a maruti car and Rs.50,000/- were not given to them and on account of the same Nidhi used to be harassed by them. She also stated that accused persons were giving threat to give divorce to Nidhi, if their demands were not fulfilled. She further stated that after about one month of the birth of the child of Nidhi, Kuldeep brought her to their house and left her stating that he was not having sufficient income to look-after Nidhi as well as the newly born child. She further stated that Nidhi thereafter stayed for about 1½ years at their house and no one from the family of the accused persons came to take her back despite their requests. She also stated that on 25/6/2004 accused Kuldeep had come to their house and had taken Nidhi and her S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 24 child to his village and at that time also he had asked for a sum of Rs.50,000/- - Rs.60,000/- to set up his new business as he had suffered loss in his earlier business of juice shop. She further stated that on 5-7-2004 accused Kuldeep came to their house along with Nidhi and her daughter and again demanded the money as above but, when their father expressed his inability to arrange the said amount of money on that day then accused Kuldeep again went back leaving Nidhi and her daughter at their house. As regards PW10 Smt. Sudesh, who was again a neighbourer of Balwant Singh (PW6), she merely stated that when Nidhi was residing at her parental house for a period of about 1½ years then upon inquiry Nidhi used to tell her that there was some problem from her in-laws house with her regarding some "lain dain".
It is in the light of the aforesaid nature of allegations/averments made by the various prosecution witnesses that we have to analyze as to whether the prosecution has been successful in bringing home the charge for the offence U/S 498A/34 IPC as against accused Raghubir Singh and Smt. Krishna Devi, or not.
As observed earlier also PW6 Balwant Singh, who was the father of Nidhi did not corroborate the deposition of PW8 Seema and that of PW2 Rajesh as regards a number of allegations.
PW6 Balwant Singh was completely silent as regards any demand of maruti car and Rs.50,000/- made by accused persons to PW2 Rajesh at the time of "chuchak" ceremony. Had there been any such S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 25 demand made to Rajesh then, he must have informed Balwant Singh PW(PW6) in this regard upon returning back from the house of accused persons. PW6 Balwant Singh though stated about the demand of a car by accused Kuldeep but, he stated that the same was made to him by accused Kuldeep when he came to drop Nidhi at his house after one month of the birth of her daughter. Again, PW6 Balwant Singh did not corroborate the allegations made by PW8 Seema as regards the demand of Rs.50-60 thousand allegedly made by accused Kuldeep on 25-6-2004. PW6 Balwant Singh stated that on 25-6-2004 accused Kuldeep all of a sudden came to his house and asked for pardon while requesting to take back Nidhi. Again, PW6 Balwant Singh was completely silent as regards any incident of 5-7-2004 when as per PW8 Seema, Kuldeep had come to their house and had again demanded the money from them. In so far as PW10 Smt. Sudesh is concerned she made a general statement that Nidhi had told her that there was some problem in her in-laws house over "lain dain".
Thus, in view of the aforesaid nature of deposition of the various star prosecution witnesses, it is clear that allegations as regards the demand of dowry alleged to have been made by accused Raghubir Singh and Smt. Krishna were completely vague and general in nature. In fact, there is also of no averment in the deposition of any of the four witnesses as to in what manner Nidhi was subjected to cruelty or harassment by accused Raghubir Singh and Smt. Krishna much less on account of non-fulfillment of their demand of dowry. The mere bald S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 26 statement that Nidhi used to be harassed and tortured by the accused persons on account of non-fulfillment of their demand of dowry is per se vague in nature and cannot be held to be sufficient to bring home the guilt of the two accused persons for the offence u/S 498A/34 IPC. As observed earlier the allegations lack any specific details, the nature of cruelty or harassment to which Nidhi was subjected to by the present two accused persons is completely missing.
In view of my aforesaid discussion, I am thus of the considered opinion that the prosecution has miserably failed in proving its case against accused Raghubir Singh and Smt. Krishna for the offence U/S 498A/34 IPC beyond shadows of all reasonable doubts.
I accordingly giving benefit of doubt hereby acquit both the accused persons, namely, Raghubir Singh and Smt. Krishna of the offence U/S 498A/34 IPC.
Coming now to the second part of the case as against accused Kuldeep, one may though argue that the reasoning as applied for the offence U/S 498A/34 IPC qua accused Raghubir Singh and Smt. Krishna should also hold good for accused Kuldeep. However, I would like to deal with this aspect of the matter at a later stage of my judgment as it will be more prudent to deal with the case of the prosecution firstly qua the offence U/S 364/302 IPC.
As stated to by PW2 Rajesh, PW6 Balwant Singh, PW8 Seema and PW10 Smt. Sudesh, Nidhi was residing at her parental house for the S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 27 past about 1½ years prior to the present incident. This fact has not been disputed even by accused Kuldeep.
The prosecution has alleged that Kuldeep initially took Nidhi and her daughter on 25-6-2004 to his house and again returned back on 25-7-04 stating that he had some dispute with his brother Pradeep and he will take them back as he is searching for a house in Narela. The prosecution has further alleged that on 9-7-2004 Kuldeep again came and took Nidhi along with him stating that he want to show her a house which he has taken on rent. From 9-7-2004 till 12-7-2004 Nidhi did not return back and when on 12-7-2004 the parents of Nidhi contacted Kuldeep at his house then he feigned ignorance about her, leading to suspicion in their minds about the whereabouts of Nidhi. They thus lodged a complaint with the police of PS Kanjhawala which resulted in the registration of the present case. Accused Kuldeep has though put a suggestion to all the witnesses that Nidhi in fact had gone with some other person and that person has killed her and not Kuldeep but, this suggestion was vehemently denied by all the witnesses. However, still certain other important other factors needs to be taken into consideration.
Firstly, the factum of Nidhi having been recovered from deep inside the valley on the way from Dehradun to Mussoorrie has not been disputed by the accused. It has also not been disputed in any manner that Nidhi after recovery was sent to Trinity Grace Hospital and where after ten hours or so, she succumbed to her injuries and died. The subsequent inquest proceedings followed by the postmortem S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 28 examination carried out on her body at Dehradun has also not been disputed. Thus, what is required to be seen and analyzed while also at the same time considering the various contentions of learned defence counsel as to whether Nidhi left her parental house on 9-7-04 along with Kuldeep as alleged by various prosecution witnesses or not. Secondly, whether Nidhi was subsequently recovered from inside the valley on Dehradun Mussoorie road at the instance of accused Kuldeep or not.
These two circumstances if found to have been proved by the prosecution beyond shadows of all reasonable doubts will certainly provide crucial links in the prosecution chain of evidence which will lead to the only conclusion that Nidhi indeed was murdered by accused Kuldeep and none else.
Learned Defence Counsel stressed that if Nidhi had left the house with accused Kuldeep on 9-7-2004 leaving her daughter behind and that too stating that he will return back in few hours then, there was no reason as to why the parents of Nidhi continued to wait for her for a period of about three days and they went to the house of accused Kuldeep to inquire about her only on 12-7-2004 and not before. It was on this premise stated that Nidhi in fact had eloped away with some other person and was murdered by him only but, in order to save the reputation of family of Balwant Singh, accused Kuldeep was falsely implicated in this case.
I may however state that even if it is presumed for the sake of arguments that Nidhi had eloped away with some other person and not S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 29 with accused Kuldeep then also there was no reason as to why the parents of Nidhi would not have lodged any report regarding her missing, for at that time there could be no reason for them to presume that Nidhi had deliberately left the house with some one else or that she has been murdered by someone else. No presumption can be drawn that the parents of Nidhi would have kept quite even if she would have eloped away with some other person. The fact that Nidhi in fact left the house with Kuldeep further stands supported when it is found that Nidhi was subsequently recovered from inside the valley at the instance of accused Kuldeep only.
In fact, an assessment of the prosecution evidence in the present case has to be made keeping in mind the rural background from which the two families in the present case comes out. As already observed Nidhi was staying at her parental house for the past about 1½ years. Admittedly, yet another sister of Nidhi was residing in the house of accused persons only, after having been married with another brother of accused Kuldeep, namely, Pradeep. Thus, there would have been every intention of the parents of Nidhi, as is with the parents of every girl, to send their other daughter also to her matrimonial home. There were admittedly some differences between Kuldeep and Nidhi which led to a long stay of Nidhi at her parental house. It has also come in the deposition of PW8 Seema that as per the culture in their community reconciliation efforts are made by the male elder members of their family.
S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 30 Thus, once Nidhi left her house with her husband though initially for few hours even then not much can be read against the prosecution case as to why her family members did not inquire about her. The foremost intention as earlier also observed of the parents is to ensure that Nidhi may spend some time with her husband so that the differences between them may stand sorted out. PW8 Seema also stated that Kuldeep had left Nidhi and her daughter at their house stating that he is not having sufficient income to look-after them. Thus, the family members of Nidhi must have also provided an opportunity to both Kuldeep and Nidhi to reconcile their differences while in the meantime taking care of her daughter and thereby not burdening them with added responsibilities when already they were facing problems and difficulties in their matrimonial life. It is a very common phenomena In Indian society that children of daughters are looked after by the parental family of the daughter.
In view of the aforesaid circumstances, I am of the considered opinion that nothing adverse can be drawn against the prosecution case from the mere fact that the parents of Nidhi did not inquire about her from 9th July, 2004 till 12th July, 2004. In fact, Nidhi left her house on the evening of 9th July, 2004 and it was only on 10th July, 2004 and 11th July, 2004 that no inquiry was made. On 12th July, 2004 the parents of Nidhi had gone to the house of accused to inquire about her. PW8 Seema also stated that on 12th July, 2004 accused Kuldeep had made a telephone call at their house inquiring about Nidhi and she told accused Kuldeep S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 31 that Nidhi had already left with him on 9th July, 2004 from their house. Accused Kuldeep thereafter allegedly disconnected the phone call without replying any further. She stated that she thereafter disclosed this fact to her parents, who along with 4-5 other persons then went to the house of accused Kuldeep.
The aforesaid fact also explains as to what prompted the parents of Nidhi to go to the house of accused Kuldeep and to inquire about Nidhi on 12-7-2004. PW8 Seema stated that on 9th July, 2004 accused Kuldeep left their house along with Nidhi and that she accompanied them till the bus stand.
It was further submitted by learned defence counsel that PW8 Seema in her deposition stated that when she was going along with Nidhi and Kuldeep to the bus stand then, no one met them in the gali. On the other hand, it was stated that PW10 Smt. Sudesh has deposed that she had seen Nidhi and Kuldeep going from the gali along with Seema. It was also pointed out that the factum of Seema going along with Nidhi and Kuldeep in the gali was found to be an improvement having been made by PW10 Smt. Sudesh over her earlier statement U/S 161 Cr.PC made to the IO. It was thus stated that not only PW10 Smt. Sudesh has made improvement over her earlier statement but even material contradictions have cropped up in her deposition vis-a-vis the deposition of PW8 Seema.
However, I may state that PW8 Seema merely stated that no one met them when she was accompanying Kuldeep and Nidhi to the bus stand. On the other hand, PW10 Smt. Sudesh simply stated that she S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 32 had seen Nidhi along with Kuldeep and Seema going in the gali. She never stated that she had any talk with either of them. Thus, there is no contradiction at all in the deposition of the two witnesses in this regard. In so far as the omission on the part of Sudesh (PW10) in having not stated in her statement u/S 161 Cr.PC that Seema was also going along with Nidhi and Kuldeep in the gali, the same is a minor omission and does not take away the credibility from the deposition of this witness. It is often seen that the statements u/S 161 Cr.PC does not contain all the details which are usually given by a witness which deposing in the court. Thus, it stands proved beyond doubt that Nidhi was last seen alive along with Kuldeep on 9-7-2004, when she left her parental house along with him.
Coming to the events which took place after lodging of complaint by PW6-Balwant Singh with the police of PS Kanjhawala, I may state that a case was initially registered for the offence U/S 498A/364 IPC and thereafter accused Kuldeep was apprehended on 13-7-2004. After the apprehension of accused, he was interrogated and during the course of which he made a disclosure statement stating that he had murdered Nidhi on Dehradun-Mussoorie road and had thrown her in the valley down. This fact was duly mentioned in the application moved before the then court of ld. MM Sh. MK Gupta by the IO while seeking five days police custody remand of the accused on the ground that dead body of Nidhi is to be recovered. It was on this ground only that ld. MM vide order dated 13-7-04 remanded accused to five days police custody remand observing that the dead body was yet to be recovered. Thereafter, SI S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 33 Hansraj informed the duty officer, PS Kanjhawala, namely, PW13 ASI Kanwal Singh that a team headed by SHO/Inspt. Dharampal and comprising of he himself, Ct. Ramesh Kumar and SI Ram Kumar accompanied with accused Kuldeep are leaving for Mussoorie in a private vehicle while also carrying a pistol and eight live cartridges. This information was duly recorded in the police station by ASI Kanwal Singh vide DD No.22A dated 13-7-2004 Ex.PW13/A. The deposition of this witness has not been disputed by the accused. Thus, the contents of DD No.22A stands duly proved and lends corroboration to the fact that a police party headed by Inspt. Dharampal and comprising of SI Hansraj left for Mussoorie along with accused Kuldeep after obtaining his five days police custody remand so as to recover the dead body of Nidhi. Thereafter, the police party went to Dehradun and stayed in a lodge in the night and on the morning they proceeded to Mussoorie. It was about 3 kms prior to Mussoorie that accused Kuldeep allegedly pointed out a place and from where a pair of sleepers and chunni allegedly belonging to Nidhi were recovered. Accused also allegedly pointed out the place being the one from where he had thrown Nidhi after strangulating her. It was thereafter that the Delhi Police party went to PS Mussoorie and reported about their arrival besides recovery of a pair of sleepers and chunni and the alleged disclosure statement of accused Kuldeep. PW16 SI Ashok Kumar Arora, SO at PS Mussoorie informed the area SDM and left the police station after making necessary entry in the 'roznamcha'. The police party thus comprising of police officials of PS-Mussoorie as well as that of S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 34 Delhi thereafter recovered Nidhi from at a distance of 50-60 feet inside the valley.
Ld. defence counsel though pointed out certain contradictions in the deposition of police officials and that of SDM- Mussoorie-Sh. KP Singh (PW4) as to whether the SDM arrived at the scene prior to taking out Nidhi from inside the valley or afterwords. However, I may state that this contradiction is completely irrelevant in the overall facts & circumstances of the present case, for it is duly mentioned in the proceedings over there that SDM-Sh. KP Singh when inspected Nidhi found her to be still breathing and thus ordered for her immediate removal to Trinity Grace Hospital. Thus, even if it is presumed that SDM reached the spot after Nidhi was already brought up from inside the valley then also it hardly matters, for the fact of recovery of Nidhi from inside the valley is not in dispute and stands well proved from the various documents prepared in this regard initially pursuant to the orders of SDM for referring her to hospital and subsequently at the hospital itself.
At this stage, learned defence counsel argued that the various photographs of the place of recovery of Nidhi Ex.PW15/1 to 11 does not show the presence of Kuldeep for the simple reason that accused Kuldeep was not accompanying the police party.
I may however state that in so far as the photographs are concerned, a bare perusal of the same shows that the same have been taken in a very unprofessional manner. The photographs clearly shows that the photographer was merely focusing on the body of Nidhi and in S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 35 that process if any one of the police party member was sitting besides the body of Nidhi on the ground or was holding the body in one hand then only his face is appearing in the photographs, otherwise, it is only the legs of all the other persons which are visible in the photographs. I am not at all suggesting that the photographs so taken were good enough to support the prosecution case and indeed due care should have been taken while taking the photographs and if any photograph of all the persons present at that time over there would have been taken then the same would have proved to be a clinching piece of evidence to the prosecution case. However, in one of the photograph viz Ex.PW15/3, it is clear that one person is holding one end of a handcuff and the other end of the handcuff is going towards another person. The presence of handcuff in the photograph clearly shows that indeed one person was with the police party in custody, who had accompanied the police party to the place of incident. Admittedly, the photographs were taken from the camera of SI- Ashok Arora and thus the photographer was not a professional photographer.
I am also not at all suggesting that this presence of handcuff suggests that accused Kuldeep was the person, who was accompanying the police party. This fact however stands otherwise established from the various documents prepared in this regard even subsequently. At this stage, I may also like to mention that the prosecution has placed on record certain newspaper cuttings, though the same have not been proved on record but, still a reference can be made to them. While the S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 36 Times of India dated 17th July, 2004 news item talks about the incident in question but the news cutting of two local newspapers of Dehradun viz 'Denik Jagran' and 'Dehradun Jagran' shows certain photographs also. In the newspaper 'Denik Jagran' photograph is there of Nidhi being brought out from inside the valley by the police officials. In the photograph published in 'Dehradun Jagran' there is photograph not only of Nidhi lying in an injured condition on the ground but, another photograph taken subsequently of the police party involved in the operation. In the said photograph, accused Kuldeep is also found sitting. This photograph would have also clearly proved the presence of accused Kuldeep along with the police party at Mussoorie but, I may once again state that as the newspaper cuttings have not been proved so, I am not placing any reliance upon them.
Subsequent to the recovery of Nidhi from inside the valley she was taken to Trinity Grace Hospital at Mussoorie where the doctors examined her on six occasions after a gap of every hour or two but, found her to be unfit for making statement. Finally, in the night Nidhi succumbed to her injuries and died. Thereafter, inquest proceedings were carried out by the SDM and the body was sent to Dehradun for postmortem examination. After the postmortem examination, the body was handed over to PW1 Rajesh Dabas, Rajiv and Pramod Dabas. The veracity of this document has not been disputed by the accused. Even otherwise it cannot be presumed that not only the police of PS Kanjhawala, Delhi but, also that of PS Mussoorie and including the SDM-
S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 37 Mussoorie besides the doctors at Trinity Grace Hospital and the Autopsy Surgeon at Dehradun all conspired together to frame a concocted story so as to falsely implicate accused Kuldeep for the murder of Nidhi and thereby at the same time also letting free the actual person, who as per the claim of accused had taken Nidhi to Mussoorie and murdered her. If such kind of arguments of the accused is accepted then, there can be no way in which the deposition of police officials or of the SDM or the doctors can be relied upon. In fact, the police officials of PS Mussoorie and SDM Mussoorie have all deposed about the presence of accused Kuldeep along with the Delhi Police party. It will be again a far fetched argument that the various newspapers were also feeded with such a concocted story and they too agreed to publish the same at the instance of the parents of Nidhi.
At this stage, I may however mention that the prosecution story certainly failed to find any support from the deposition of PW5 Darshan Lal Saklani, who was the caretaker of "Kallumal Dharamshala" at Dehradun where accused Kuldeep had allegedly stayed with Nidhi while going to Mussoorie from Dehradun. He though stated that police had brought a person in muffled face to his Dharamshala but, he stated that as he meet a number of persons during the course of his business so, he is unable to identify as to whether accused Kuldeep was the person, who stayed in his dharamshala or not. Thus, the deposition of PW5 Darshan Lal Saklani was though of no use to the prosecution but, at the same time nothing can be read against the case of the prosecution on account of S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 38 lack of corroboration from his deposition. It will be though worthwhile to mention that PW5 Darshan Lal Saklani did say that a police party had indeed come to his 'dharamshala' along with a person with muffled face to make inquiries.
Ld. defence counsel further argued that the prosecution has failed to prove the motive as to why Kuldeep would murder his wife. It was also stated that prosecution also did not examine Namita, the sister of Nidhi, who was still residing in the house of accused persons with her husband Pradeep.
As regards the motive, I may state that though motive certainly is an important aspect of every criminal trial. Sometimes motive plays an important role and becomes a compelling force to commit a crime and, therefore, motive behind the crime is a relevant factor for which evidence must be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention. In a case where there is clear proof of motive for the commission of crime, if affords added support to the finding of the court that the accused guilty of the offence charged with. But, at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone, who knows as to what circumstances prompted him to a certain course of action leading to the commission of the crime.
S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 39 Thus motive is something which is basically hidden in the mind of the accused and it may be difficult for the prosecution to lead evidence in this regard. Accused Kuldeep however in his alleged disclosure statement made to the police stated that besides feeling a crunch for money which was also not being paid by his in-laws he also suspected the character of Nidhi. Nidhi was also staying at her parental house for the past about 1½ years. Thus, if all of a sudden Kuldeep had chosen to take Nidhi along with him then some circumstances must have prevailed upon him to take back Nidhi along with him after a gap of about 1½ years. As earlier also observed there admittedly existed some differences in the matrimonial life of Nidhi and Kuldeep. More so, it is very difficult for a third person to know the differences in the matrimonial life of a couple and thus it becomes all the more difficult for the prosecution to lead any specific evidence as regards the differences between the couple. The prosecution witnesses did state that accused Kuldeep begged pardon from them and took back Nidhi. PW8 Seema also stated that accused Kuldeep had left Nidhi and her daughter at their house stating that he was not having sufficient income to look-after them. Thus, from the overall facts & circumstances of the present case it thus appears that taking back Nidhi by Kuldeep after a gap of about 1½ years must have been consequent to certain circumstances of either doing away with her or for teaching her a lesson. Thus, in these circumstances, nothing can be read against the case of the prosecution on account of it having not led any evidence qua the motive aspect in the present case, as the S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 40 same must have been in the mind of accused only.
Similarly, as regards the circumstantial nature of evidence and the last seen theory, it was observed by Ho'ble Supreme Court of India in the case BODH RAJ @ BODHA & ORS. VS. STATE OF J&K AIR 2002 SC 3164 that:-
"For a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. There is no doubt that conviction can be based solely on circumstantial evidence but the conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are :
1 the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 41 'should' and not 'may' be established;
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 be proved and 5 there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Similarly, as regards the last seen theory also the Hon'ble SC in the same case viz BODH RAJ (SUPRA) observed as under:
"The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 42 were last seen together, it would be hazardous to come to a conclusion of guilt in those cases".
As regards the non-examination of Namita, I may state that her non-examination is more fatal to the case of the accused then to that of prosecution. No-doubt, the present case has thrown a peculiar picture where the parents of a girl are prosecuting the in-laws of their daughter and her husband on account of murder of their daughter by their son-in- law but, their another daughter is still residing in the same family with yet another brother of accused Kuldeep. However, IO/Inspt. Dharampal did state in his cross-examination that he tried to examine Namita and Pradeep both but they expressed their reluctance to join the investigation. Thus, the only conclusion which arises from the aforesaid circumstances is that Namita did not intent to spoil her matrimonial life by deposing against her parents-in-law and brother-in-law. Furthermore, if there was no iota of truth in the prosecution case then, there was no reason as to why the accused persons did not examine their another son Pradeep as well as his wife Namita. The question of deposing against her parents by Namita did not arise as she admittedly is still residing in the family of accused persons despite the murder of her sister by her brother- in-law Kuldeep. Thus, as observed by me herein above the non- examination of Namita is more fatal to the accused persons then to the case of the prosecution. In fact, the non-examination of Pradeep also amounts to withholding of evidence by the accused persons which was S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 43 in their possession only. The only necessary corollary which thus arises is that both Namita and Pradeep only helped accused Kuldeep and accused Raghubir Singh and Smt. Krishna by not joining the investigation and not entering the witness box subsequently during the course of trial.
As regards the cause of death of Nidhi, the Autopsy Surgeon stated the same to be on account of the combined effects of cerebral damage and aspiration pneumoniatis following head injury as a result of blunt force trauma. He was merely given a suggestion by learned defence counsel that he has not given correct findings but, this suggestion was vehemently denied by him. I have been unable to find any other circumstance which could show that this witness had in any manner given a wrong report as to the cause of death. Thus, the opinion of PW12 Captain Hemant Bharadwaj also co-relates with the overall facts & circumstances of the prosecution case.
Thus, from the aforesaid facts & circumstances it is crystal clear that accused Kuldeep indeed took Nidhi from her parental house on 9-7- 04 and had taken her to Mussoorie and on the way to Mussoorie i.e on Dehradun, Mussoorie road threw her in the valley after strangulating her. The chain of circumstances as discussed herein above clearly leads to only one hypothesis that accused Kuldeep committed murder of Nidhi by throwing her inside the valley after strangulating her and on account of the injuries so sustained by Nidhi, she succumbed to her injuries subsequently upon her recovery on 15-7-04. Thus, it is clear that accused S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 44 Kuldeep had thrown Nidhi inside the valley with a guilty intention to commit her murder and with the knowledge that by his said act he will commit the murder of Nidhi.
Thus, not only all the individual circumstances forming the circumstantial chain of evidence have been categorically proved pointing an accusing finger towards accused Kuldeep but, the entire circumstantial chain of evidence also leads to only one hypothesis that the murder of Nidhi was committed by accused Kuldeep and none else. The said circumstantial chain of evidence is not explainable on any other hypothesis whatsoever much less consistent with the innocence of accused.
The prosecution in my considered opinion has thus categorically proved beyond shadows of all reasonable doubts that the murder of Nidhi was indeed committed by accused Kuldeep and none else.
I accordingly, hold accused Kuldeep guilty of the offence U/S 302 IPC and convict him thereunder.
As regards, the offence of abduction, I may state that though ordinarily there does not seems to be any wrong act committed when a wife leaves her parental house along with her husband but, the situation herein is different. The very facts that accused Kuldeep took Nidhi along with him with a guilty intention of committing her murder clearly shows that Nidhi was induced in leaving her parental home along with accused S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 45 Kuldeep by deceitful means. The impugned act thus amounts to abduction of Nidhi by accused Kuldeep from her parental house with an intention to commit her murder. Thus, the prosecution in my considered opinion has also been successful in proving beyond shadows of all reasonable doubts the offence U/S 364 IPC also as against accused Kuldeep.
I accordingly hold him guilty of the offence U/S 364 IPC also and convict him thereunder.
However, as regards the offence U/S 498A IPC, I may state that the evidence led on record as earlier also observed lacks specific details of any cruelty having been meted out to Nidhi by accused Kuldeep on account of non-fulfillment of any demand. Though, leaving of a lady at her parental house for a long period by her husband can in certain circumstances be also termed to be an act constituting mental cruelty but, in my considered opinion the overall facts & circumstances of the case and the evidence on record in this regard does not make the said act to be constituting the offence U/S 498A IPC. The prosecution has failed to prove the same beyond shadows of all reasonable doubts.
I accordingly hereby giving benefit of doubt, acquit accused Kuldeep of the offence U/S 498A IPC.
In view of any aforesaid discussion, I accordingly hold accused Kuldeep guilty of the offence U/S 302/364 IPC and S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 46 convict him thereunder. He is however acquitted of the offence U/S 498A IPC.
Accused Raghubir Singh and Smt. Krishna also stands acquitted of the offence U/S 498A/34 IPC.
ANNOUNCED IN THE OPEN COURT ON 26-3-2009.
(BHARAT PARASHAR) ADDITIONAL SESSIONS JUDGE- VI (OUTER) ROHINI COURTS:DELHI *RK S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA 47 FIR NO.168/04 PS KANJHAWALA U/S 364/302/498A/34 IPC.
7-3-2009 Present : Ld. APP for the State.
Accused Kuldeep is present in JC.
Other accused are present on bail.
Further clarifications have been sought.
Put up for Orders on 26-3-2009 at 2pm.
(BHARAT PARASHAR) ADDITIONAL SESSIONS JUDGE- VI (OUTER) *rk ROHINI COURTS:DELHI 26-3-2009 Present : Ld. APP for the State.
Accused Kuldeep is present in JC.
Other accused are present on bail.
Vide my separate detailed judgment dated 26-3-09 accused persons, namely, Raghubir Singh and Smt. Krishna have been acquitted of the offences U/S 498A/34 IPC. Their bail bonds stands cancelled and their sureties are discharged. Documents of their sureties, if any be returned forthwith.
Accused Kuldeep has been convicted of the offence U/S 302/364 IPC and he has been acquitted of the offence U/S 498A IPC.
Case is now adjourned for Arguments on Sentence to 30/3/2009 at 2pm.
(BHARAT PARASHAR)
ADDITIONAL SESSIONS JUDGE- VI (OUTER)
*rk ROHINI COURTS:DELHI
S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA
48
FIR NO.168/04
PS KANJHAWALA
U/S 364/302/498A/34 IPC.
30-3-2009
Present : Ld. APP for the State.
Accused Kuldeep is present in JC along with ld. Counsel Sh. Pradeep Singh-Amicus Curiae.
Arguments on Sentence heard.
Case is now adjourned for Orders on Sentence to 31-3-2009 at 2pm.
(BHARAT PARASHAR)
ADDITIONAL SESSIONS JUDGE- VI (OUTER)
*rk ROHINI COURTS:DELHI
31-3-2009
Present : Ld. APP for the State.
Accused Kuldeep is present in JC along with ld. Counsel Sh. Pradeep Singh-Amicus Curiae.
Vide my separate detailed order, order on sentence has been announced.
File be consigned to record room.
Announced in the open court on 31-3-2009.
(BHARAT PARASHAR)
ADDITIONAL SESSIONS JUDGE- VI (OUTER)
*rk ROHINI COURTS:DELHI
S/V KULDEEP ETC, FIR NO.168/04, PS KANJHAWALA