Delhi District Court
State vs . Jaiveer Singh on 6 April, 2022
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IN THE COURT OF MR. NEERAJ GAUR : ADDL. SESSIONS
JUDGE-05 : NORTH-WEST : ROHINI COURTS/DELHI
In the matter of :-
(Sessions Case No.52788/2016)
CNR No.DLNW01-002198-2015)
FIR No. : 892/2015
Police Station : Aman Vihar
Chargesheet filed under Section : 302 IPC
Charges framed under Section : 302 IPC
STATE
Versus
JAIVEER
S/o Sh. Ram Prasad
R/o H.No.G-65, Prem Nagar-1
Delhi ......Accused
Date of Institution : 20.11.2015
Date of Arguments : 16.12.2021,
23.12.2021,
24.12.2021,
28.03.2022
Judgment Reserved on : 06.04.2022
Judgment Pronounced on : 06.04.2022
Decision : Acquitted
JUDGMENT
State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 1 of 31
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PROSECUTION CASE
1. This is a case of murder by the accused of his own wife. On 24.07.2015, at about 05:00 a.m., a PCR call was made by the accused. Accused stated that about 01:00 a.m., he murdered his wife Malti by strangulating her. He also stated that Malti had earlier run away on 24.06.2015 with a boy called Raju and she had returned on 22.07.2015. FIR was lodged and investigation was carried out. Accused was arrested. After completion of investigation, accused was charge-sheeted u/s 302 IPC.
2. Vide order dated 15.12.2015, charge u/s 302 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 2 of 31
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3. To prove the charges, prosecution examined total 24 witnesses and I shall briefly discuss their testimonies.
4. PW-2 Dr. Manoj Dhingra proved the postmortem report of deceased Malti as Ex. PW 2/A. He stated that he observed ligature mark over the neck, multiple reddish contusion on the angle of scapula. He deposed that the death was caused due asphyxia as a result of antemortem ligature strangulation. He further deposed that on 03.08.2018, he also received an application from the SHO PS Aman Vihar alongwith a chunni in white parcel for opinion. After the examination, he opined that the ligature mark was possible with the chunni and he proved his report as Ex. PW 2/B.
5. PW-5 HC Narender deposed that on 24.07.2015, he was working as duty officer and he received a rukka and recorded DD No.10 State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 3 of 31
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Ex.PW-5/A. He registered the present FIR Ex.PW-5/C and made endorsement Ex.PW-5/B on the said rukka. Vide DD No.13 Ex.PW-5/D, the prints outs of the FIR were transmitted to the Ilaqa Magistrate and to the senior police officials. The certificate u/s 65B of the Indian Evidence Act is Ex.PW-5/E.
6. PW-11 Ct. Sandeep Singh deposed that on 24.07.2015, while working as DD writer at PS Aman Vihar, he received one information from PCR about the call made by the accused from Mobile No.9268233686. This information was communicated to the DD writer of PP Prem Nagar. PW 11 further informed the SHO along with Ct. Amit and Ct. Siyaram left for the spot. PW 6 Ct. Amit deposed that while working as DD writer at PP Prem Nagar on 23.07.2015, he received information from the duty officer of the PS regarding the call made by the accused to the PCR. The said information was entered in the DD register vide entry Ex.PW-6/A. State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 4 of 31
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7. PW-12 HC Abhijeet Yadav deposed that on 05.07.2015, he was working as duty officer at PS. On that day, accused Jaiveer Singh came to the PS and gave information about missing of his wife Malti Devi. The information was recorded vide DD No.15A Ex.PW- 12/A. The information was marked to HC Mundey Tukaram(PW-10). PW-3 Ct. Kuldeep proved the copy of DD No. 15A dated 05.07.2015 as Ex.PW-3/A. PW-10 HC Mundey Tukaram deposed that on 22.07.2015, the accused came to the PS alongwith his wife Malti and informed that Malti had left owing to some misconception and accused further stated that he did not want to pursue his missing report. An entry in this regard was recorded vide DD No.24 PP Ex.PW-10/A. PW-9 HC Lalit proved the DD No.24 PP dated 22.07.2015 as Ex. PW-9/A.
8. PW-13 Retired SI Randhir Singh deposed that on 24.07.2015, he State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 5 of 31
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alongwith Crime Team visited the spot i.e. G-65, Prem Nagar 1, near Samshan Ghat. He inspected the spot and prepared his report Ex.PW-13/1. PW- 7 Ct. Vikas deposed that he was working as photographer with the Mobile Crime Team of the District and he also visited the spot. A lady was found lying on a bed and foam (froth) was coming out from her nose and mouth. Near to her, a green color chunni was lying. PW-7 clicked 12 photographs but only 10 could be developed that were handed over to IO. The photographs have been proved as Ex.PW-7/B1- B10 and negatives are Ex.PW-7/A1-12.
9. PW-16 SI Praveen Atri, PW-15 Ct. Virender Singh, PW-20 Ct.
Manish, PW-19 Ct. Virender and PW-21 Insp. Ajay Kumar Singh are the police officials who participated/conducted the investigation of the present case. They deposed that on 24.07.2015, on receipt of the information about the present State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 6 of 31
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murder, they reached at the spot. The caller/accused Jaiveer Singh was also found present at the spot who pointed out towards the deceased and stated that he had committed the murder of his wife. The dead body was inspected and froth was coming out of her mouth. Accused Jaiveer produced the chunni that was seized by PW-21 vide memo Ex.PW-16/1. Accused was arrested and personally searched vide memos Ex.PW-16/2&3 respectively. The disclosure statement of the accused PW-16/4 was recorded. Rough site plan of the spot is Ex.PW-21/1. Inquest Form Ex.PW-21/2 was filled up. PW-15 transferred the body to the mortuary of SGM Hospital vide application Ex.PW- 21/3. Rukka Ex.PW-21/4 was prepared that was brought to the PS by PW 20 for registration of FIR. Accused got recovered the mobile phone from which the accused had made the PCR call. On 25.07.2015, at SGM Hospital, the dead body of the deceased was identified vide statement Ex. PW 21/5 & 6. An application State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 7 of 31
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Ex. PW21/7 for conducting the postmortem of the dead body was moved and after the postmortem, the dead body was handed over to the brother of the deceased vide memo Ex. PW21/8. The PM report and exhibits were seized vide memo Ex. PW 15/1 and were deposited in the Malkhana. On 19.08.2015, PCR Form Ex.
PW17/1 attested by ACP Sh. Subodh Kumar was collected. PW 21 proved an application as Ex. PW21/9 vide which, CD from PCR was also collected by PW 18 regarding the PCR call made by the accused that was later seized by PW 21 vide Memo Ex.
PW 18/1.
10. The chunni has been identified as Ex. P 16X. The mobile phone of the accused is Ex. PW21/Y3.
11. PW 17 HC Ved Prakash proved the PCR form as Ex. PW17/1. State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 8 of 31
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12. PW 24 ASI Rajesh brought the PCR Form dated 24.07.2015 regarding the information received on that day. He proved the PCR Form as Ex. PW17/1. The second part of the said form regarding of the information to the local police station is Ex. PW24/1. The attested copies of the said forms are Ex. PW24/2. PW 1 SI Harish Chandra Pathak from CPCR/ PHQ stated that on 19.08.2015, he was posted as Nodal Officer. On that day, Form 1 dated 24.07.2015 bearing CPCR No. 24.07.151490050 was generated from the computer after feeding his personal password. The PCR Form is proved as PW1/B with certificate u/s 65B of Evidence Act as PW 1/A.
13. PW-4 SI Harender deposed that on 07.09.2015, on the instructions of the IO/PW21, he moved an application Ex. PW4/A before the concerned MM for obtaining voice sample of the accused which was allowed. An application Ex. PW 4/B State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 9 of 31
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dated 08.09.2015 was moved before FSL. On 14.09.2015, the accused was produced at FSL Rohini in judicial custody where his voice samples were taken on two audio cassettes given the marking as "O" & "C". Both these cassettes were handed over to IO/PW21.
14. PW-14 Dr. Bharti Bhardwaj proved the FSL report as Ex. PW-
14/1. He deposed that the voice exhibits of the speaker in the questioned CD was similar to the voice sample in the audio cassettes.
15. PW-22 Insp. Harender Singh deposed that on 13.08.2018, he made a request Ex. PW22/A to the HOD Forensic Medicine SGMH for giving subsequent opinion on the ligature material of the present case. The opinion was rendered by Dr. Manoj Dhingra which is Ex. PW2/B. State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 10 of 31
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16. PW-23 Retd. Insp. Surya Prakash deposed that on 22.02.2017, he was posted as SHO and he moved an application Ex. PW23/A before this court for submissions of FSL result.
17. PW-8 Sh. Deepak did not support the prosecution case. During cross examination on behalf of the State, PW-8 denied that he had let out the ground floor of his premises to the accused 15 days prior to the incident or that he had any knowledge that the wife of the accused had eloped with one Raju and had returned only on 22.07.2015.
18. All the PWs were duly cross examined on behalf of the accused. STATEMENT OF ACCUSED
19. Statement of accused under section 313 CrPC was recorded on State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 11 of 31
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14.10.2019. An additional statement was recorded on 07.12.2019. Accused denied the evidence of the prosecution. He denied of having made any PCR call from mobile number 9268233686, informing the police of having killed his wife by strangulating her.
20. He opted not to lead any defence evidence. ARGUMENTS AND FINDINGS
21. It is submitted on behalf of the State that the guilt of the accused has been proved from his confessional statement made in the PCR call itself. The PCR form has been proved as Ex.PW-17/1. The call was made from the mobile phone of the accused bearing number 9268233686. The voice recording made in the said PCR call has been proved to be the voice of the accused and State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 12 of 31
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FSL result in this regard has been proved on record. The cause of death has been proved as asphyxia as a result of antemortem ligature strangulation which fact has been proved through FSL result Ex.PW-2/A. It is submitted that the prosecution has proved all the circumstances to establish the guilt of the accused.
22. On behalf of the accused, it was firstly argued that the so called confessional statement of the accused is not admissible as evidence being hit by Section 25 of the Evidence Act. Reliance in this regard has been placed on the judgment passed by Hon'ble Supreme Court in case titled as 'Aghnoo Nagesia Vs. State of Bihar, MANU/SC/0079/1965'. It is further contended that the prosecution has although placed on record the PCR form but the transcript of the conversation has not been proved on record. It is argued that the accused was not the author of the PCR form in which the so called confession of the accused was State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 13 of 31
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recorded by the police. The officer who actually received the call at the PCR has not been examined by the prosecution. Accordingly, it is argued that the PCR form itself cannot be read in evidence.
23. It is further argued that PW-18 stated that he collected from the PCR (HQ), the PCR form and CD and handed them over to the IO/PW-21. PW-18 did not state that the CD was received by him in sealed condition. PW-21 simply deposed that the said PCR form and CD was seized by him but he did not seal the same. The fact that the said CD was in unsealed condition is further confirmed from the deposition of PW-14 Dr. Bharti Bhardwaj who is silent as regards the seal on the CD received by him. It is argued that there is strong possibility that the CD obtained from the PCR was tampered with. The voice of the caller in the said PCR call has not been proved to be the voice of State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 14 of 31
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the accused. It is further argued that no certificate under Section 65-B of the Evidence Act has been proved on record in respect of the data contained in the said CD. Not only this, the person who collected the voice sample of the accused at FSL has not been examined by the prosecution. Reliance in this regard has been placed on the case titled as 'Arjun Pandit Rao Khodkar Vs. Kailash Kushan Rao Gorantyal & Ors., MANU/SC/ 0521/2020'.
24. It is further contended by Ld. Counsel for the accused that the alleged recovery of the chunni from the accused is also not admissible under Section 27 of the Evidence Act as the same was not recovered on the basis of any disclosure made by the accused. The said chunni was lying in open and recovery thereof cannot be said to be in consequence of any disclosure made by the accused.
State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 15 of 31
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25. It is further argued that the prosecution has failed to prove that the mobile number 9268233686 (from which the alleged PCR Call was made) belongs to the accused in any manner. No witness has been examined to prove that the said number was allotted to the accused or registered in his name.
26. It is further argued that there are serious doubts as to the cause of death of the deceased. The police witnesses including the witnesses of the crime team themselves stated that froth was coming out of the mouth and nose of the deceased when they saw the dead body for the first time. Admittedly, no effort has been made by the IO for preservation of the viscera to ascertain if the deceased died of any poisonous substance. It is argued that the froth from the mouth of the deceased indicates that the cause of death could possibly be poison and the opinion as to the cause State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 16 of 31
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of death as asphyxia is also doubtful. It is submitted that where two views are possible, the view which is more favorable to the accused is to be accepted.
27. Regarding the cause of death, it is further argued that PW-2 Dr. Manoj Dingra gave the opinion as to the cause of death as asphyxia and he further deposed that he also gave the opinion Ex.PW-2/B to the effect that the ligature mark on the dead body was possible with the chunni examined by him. PW-2 however stated in the cross-examination that he did not undertake any dummy test using the chunni and that there was no opinion regarding the relative strength of the chunni. It is argued that PW-2 is not a reliable witness not only with respect to his opinion as to the cause of death but also qua his opinion regarding the chunni.
State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 17 of 31
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28. It is argued that the accused was allegedly arrested by the police from his house when the police reached there. The police did not comply with the mandatory directions given by the Hon'ble Apex Court in case of D.K Basu Vs. State of WB AIR 1997 SC
610. It is argued that serious doubts are created in the prosecution story regarding the very arrest of the accused and regarding the very presence of the accused in his house when the police party reached there. It is further highlighted that in none of the ten photographs of the site Ex.PW-7/B1 to B10, accused is seen visible in the house which shows that the accused was not present in the house when the police reached there.
29. Ld Defence Counsel submitted that the chain of circumstances is not proved as there are many missing links. The accused is liable to be given benefit of so many doubts created in the prosecution case.
State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 18 of 31
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30. The present case is based on circumstantial evidence. The circumstances sought to be proved against the accused by the prosecution can be noted down as under:-
a) The wife of the accused was missing few days prior to the incident and then she returned after few days. The accused suspected her fidelity and he had the motive to kill her.
b) The accused himself made the PCR call informing of having killed his wife for the reason of her having an affair with another person.
c) The voice of the accused has been proved to be the same as that of the caller who made the PCR call.
d) When police reached at the spot, the accused was present alongwith the dead body of his wife.
e) The accused produced the chunni with which State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 19 of 31
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he strangulated his wife.
f) The cause of death is Asphyxia.
31. The golden principles to be followed in a case based on circumstantial evidence have been laid down in the celebrated judgment passed by Hon'ble Apex Court in Sharad Birdi Chand Sharda Vs. State of Maharashtra AIR 1984 SC 1622 that are as under :-
A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(') where the following observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 20 of 31
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(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.
These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.
32. The first circumstance sought to be proved against the accused is the confessional PCR call made by the accused. The admissibility of the said PCR call has been challenged by the accused, relying upon the judgment of Aghnoo Nagesia Vs. State of Bihar, Manu/SC/0079/1965. The relevant extract of the said judgment are reproduced herein below:-
18. On behalf of the appellant, it is contended that the entire statement is a confession made to a police officer and is not provable against the appellant, having regard to S. 25 of the Indian Evidence Act, 1872. On behalf of the respondent, it is contended that S. 25 protects only those State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 21 of 31
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portions of the statement which disclose the killings by the appellant and the rest of the statement is not protected by s. 25. Section 25 of the Evidence Act is one of the provisions of law dealing with confessions made by an accused. The law relating to confessions is to be found generally in ss. 24 to 30 of the Evidence Act and ss. 162 and 164 of the Code of Criminal Procedure, 1898. Sections 17 to 31 of the Evidence Act are to he found under the heading "Admissions". Confession is a species of admission, and is dealt with in ss. 24 to 30. A confession or an admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law. Section 24 excludes confessions caused by certain inducements, threats and promises. Section 25 provides : "No confession made to a police officer, shall be proved as against a person accused of an offence." The terms of s. 25 are imperative. A confession made to a police officer under any circumstances is not admissible in evidence againstthe accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. The expression "accused of any offence" covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. Section 26 prohibits proof against any person of a confession made by him inthe custody of a police officer, unless it is made in the immediate presence of a Magistrate. The partial ban imposed by S. 26 relates to a confession made to a person other than a police officer. Section 26 does not qualify the absolute ban imposed by s. 25 on a confession made to a police officer.
Section 27 is in the form of a proviso, and partially lifts the ban imposed by ss. 24, 25 and 26. It provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any enquiry or trial in respect of the offence Order investigation, save as mentioned in the proviso and in cases falling under sub-s (2), and it specifically provides that nothing in it shall be deemed to affect the provisions of S. 27 of the Evidence Act. The words of s. 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 22 of 31
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a Magistrate under s. 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. Thus, except as provided by s. 27 of the Evidence Act, a confession by an accused to a police office- is absolutely protected under s. 25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by s. 162 of the Code of Criminal Procedure, and a confession to any other person made by him while in the custody of a police officer is protected by S. 26, unless it is made in the immediate presence of a Magistrate. These provisions seem to proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and should not be used in evidence against him. They are based upon grounds of public policy, and the fullest effect should be given to them. Section 154 of the Code of Criminal Procedure provides for the recording of the first information. The information report as such is not substantive evidence. It may be used to corroborate the informant under s. 157 of the Evidence Act or to contradict him under s. 145 of the Act, if the informant is called a,,; a witness. If the first information is given by the accused himself, the fact of his giving the information is admissible against him as evidence of his conduct under s. 8 of the Evidence Art. If the information is a non-confessional statement, it is admissible against the accused as an admission under s. 21 of the Evidence Act and is relevant, see Faddi v. The State of Madhya Pradesh(1) explaining Nisar Ali v. State of U.P. (1) and Dal Singh v. King Emperor(1). But a confessional first information report to a police officer cannot be used against the accused in view of S. 25 of the Evidence Act. The Indian Evidence Act does not define "confession". For a long time, the Courts in India adopted the definition of "confession" given in Art. 22 of Stephen's Digest of the Law of Evidence. According to that definition, a confession is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime. This definition was discarded by the Judicial Committee in Pakala Narayanas wami v. The King Emperor(4). Lord Atkin observed : "....no statement that contains self- exculpatory matter can amount to confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence.
An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession, State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 23 of 31
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e.g., an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession." These observations received the approval of this Court in Palvin. der Kaur v. The State of Punjab (5). In State of U.P. v. Deoman Upadhyaya(6), Shah, J. referred to a confession as a statement made by a person stating or suggesting the inference that he has committed a crime. Shortly put, a confession may be defined as an admission of the offence by a person charged with the offence. A statement which contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which, if true, would negative the offence alleged to be confessed.
If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by s. 25. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of s. 25 is lifted by s.27.
33. The contents of the PCR call are reproduced herein from the PCR form Ex.PW-1/B "....call is true Jaiveer moke par jisne bataya ki maine rat 1 baje apni patni Malti age 30 yrs. Ka gala daba kr hatya kardi thi jo dated 26 june ko kisi Raju nam ke ladke k sath bhag gyi thi jo 22 July ko wapis ayi thi - LBR2 and C/Room informed 24.07.2015, 05:32:21 I/C PP with staff moke par I/C PP............"
34. The said information, to the extent of confession made by the caller is hit by section 25 of the Evidence Act, as per the ratio laid down in State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 24 of 31
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Agnoo Nagesia case (Supra).
35. There is a further doubt as regards the said PCR call. The prosecution has sought to prove that the said PCR call was made by the accused and has placed reliance on the FSL report Ex.PW-14/1 to the effect that the voice exhibits of the speaker in the questioned CD (obtained from PCR) was similar to the voice samples obtained from the accused during investigation. As argued by Ld. Defence Counsel, PW-18 collected the CD from the PCR headquarter but he did not depose that the said CD was in sealed condition. PW-18 handed over the said CD to the IO/PW-21. PW-14 Dr. Bharti Bhardwaj from FSL is also silent as regards any seal on the CD. The report Ex.PW-14/1 although mentions the details of parcel containing the CD has been sealed with the seal of the AKS and it also mentions that the case exhibits (after the examination) have been sealed with the seal of Dr. B.B - FSL - Delhi. However, PW-21, in his deposition nowhere stated that he sealed the said CD. It goes to show that the CD State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 25 of 31
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remained in unsealed condition leaving a large scope of doubt regarding its tampering. Furthermore, no certificate u/s 65 B in respect of the CD has been proved on record. PW-18/Ct. Kapil, who had collected the CD from the PCR HQ himself stated that no certificate had been handed over to him alongwith the CD Similarly, the IO/PW-21 did not depose in the court that he put any seal on the audio tapes containing the voice sample of the accused. I also find force in the submissions of Ld. Defence Counsel that the link evidence of the person who actually took the voice sample of the accused, has not been examined/cited as a witness.
36. The confessional PCR call made by the accused has not been satisfactorily proved on record.
37. The prosecution has been able to prove through PW-12 that the accused made a missing complaint of his wife on 05.07.2015 vide DD No.15A. PW-10 further proved that the said missing complaint State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 26 of 31
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was closed on 22.07.2015 at the instance of the accused. This however does not prove that the wife of the accused was having some illicit relationship with someone. The only witness to prove this fact, relied upon by the prosecution was PW-8 Sh. Deepak who did not support the prosecution case and he denied that he knew that Malti had eloped with one Raju.
38. Prosecution has also relied upon the circumstance that the accused was found at the spot alongwith the dead body of Malti when they reached at the spot. In this regard, PW-16 SI Praveen Attri, PW- 20/Ct. Manish and PW-15/Ct. Virender Singh (also PW-19/Ct. Birender) were the officials who reached at the spot. PW-16 stated that he met the caller Jaiveer alongwith SI P.L. Meena and Ct. Abhay. PW-19 deposed that Insp. Ajay Kumar also reached at the spot and then SI P.L. Meena and Ct. Abhay were relieved. It implies that SI P.L. Meena and Ct. Abhay reached the spot prior to PW-15,16,19,20 & 21. SI P.L. Meena and Ct. Abhay have not been examined or cited State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 27 of 31
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as a witness. PW-16 stated that he met the caller Jaiveer and on entering the ground floor of G-65, he saw the dead body of a lady. It is unclear if the accused was inside the room when the police reached. It appears from the statement of PW-16 that the accused met outside the house and then they entered the house. The question before the court is whether the presence of the accused when the police arrived at the spot can be treated as a strong circumstance against him. The picture would have been clearer if the police officials who firstly reached at the spot were examined. The presence of the accused at the spot at the time of arrival of the police is not fully established. I am finding it a very weak link in the chain of circumstances.
39. It was further argued by Ld. Defence Counsel that the cause of death of deceased Malti is also doubtful and the opinion given by PW-2 Dr. Manoj Dhingra Ex.PW-2/B is also not reliable. He argued that all the police witnesses who reached at the spot including PW-15,16,19,20 State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 28 of 31
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& 21 stated that froth was coming out of the mouth of the dead body. No viscera of the dead body was preserved to ascertain if the death was caused by taking any substance. He argued that the benefit of doubt has accrued in favor of the accused.
40. The main police witnesses stated that froth was coming out of the mouth of Malti when they reached at the spot. No viscera has been preserved to detect the presence of any poisonous substance. A doubt is certainly created as to the cause of death.
41. The admissibility of recovery of the chunni has also been challenged by the accused on the ground that the same cannot be treated as being recovered at the disclosure of the accused because the same was admittedly lying at the spot in open.
42. Ld. APP for the state argued that the fact about the death of deceased Malti was especially within the knowledge of the accused and the State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 29 of 31
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prosecution is relieved of the burden once it was proved that the police proceeded to the spot on the basis of a PCR call made by the accused. It is argued that the burden shifted on the accused to prove his innocence.
43. Ld. Defence Counsel refuted the above arguments and argued that the prosecution failed to establish that it was the accused who made the call. He relied upon the judgment passed by Hon'ble Supreme Court in case titled as Vikramjeet Singh @ Vicky Vs. State of Punjab 2007 (1) JCC 64.
44. In my opinion, for want of any satisfactory proof of accused having made the PCR call, prosecution is not absolved of its primary responsibility to prove its case.
45. After going through the evidence available on record, I am of the view that the prosecution has failed to prove the circumstances State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 30 of 31
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pointing towards the guilt of the accused. There are many missing links in the chain of evidence. The possible hypothesis of the innocence of the accused cannot be excluded. The circumstances are not of conclusive nature. The accused is entitled to be given the benefit of doubts.
CONCLUSION
46. In view of the foregoing discussion, I hold the accused not guilty and accordingly acquit him of the charge u/s 302 IPC. Announced in open Court Dated : 06.04.2022 (Neeraj Gaur) ASJ-05/North-West District Rohini Courts/Delhi State Vs. Jaiveer Singh SC No.52314/2016 FIR No.892/2015 PS Aman Vihar U/s. 302 IPC Page 31 of 31