Delhi District Court
State vs . Raju Thapa @ Shiv Bahadur Thapa on 22 September, 2009
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IN THE COURT OF SHRI SANJEEV AGGARWAL: ASJ-V: OUTER:
ROHINI: DELHI
SC NO. 232/08
FIR No. 453/05
P.S. Prashant Vihar
U/s 302 IPC
State Vs. Raju Thapa @ Shiv Bahadur Thapa
S/o Late Sh. Ram Thapa
R/o F-7/93, Sec. 16 Rohini, Delhi.
Date of Institution in Sessions Court: 5.9.2005
Date of transfer to this Court: 23.12.2008
Date of Judgment: 22.09.2009
JUDGMENT
In brief, the prosecution story is that on 18.5.05 at about 6.35p.m one Seema Gupta came to Sector 16 Police Post of PS Parshant Vihar and stated that one Ramesh brother of her tenant Raju had informed her that yesterday night Raju her tenant had a quarrel with his wife and thereafter Raju locking the door of his house from outside alongwith his children and Ramesh had gone away to some other place, and when she went to the house of her tenant Raju today, she found that door of his house was locked. She had 2 expressed apprehension in the said complaint that some mishap might have taken place. On the said information, a DD No. 43 was recorded at Sector 16 Police Post, which has handed over to SI Jai Parkash, who alongwith constable Jagvir and constable Radha Krishan reached the spot i.e. F-7/93 Sector 16, Rohini and after opening the door of the said house, it was found that in the internal room one woman was lying dead who was identified as Sangeeta by the complainant and blood was scattered every where in the room and thereafter SI Jai Parkash got recorded the statement of Smt. Seema Gupta.
2. Wherein she stated that she had one house bearing no. F-7/93, Sector 16, Rohini which she had let out to one Raju Thapa and he was residing in the said house alongwith his wife, three children and his brother Ramesh and on 18.5.05 when she was present at her house younger brother of Raju namely Ramesh came to her house and informed her that yesterday night there was a big quarrel between his brother and bhabhi and thereafter, his brother had locked his bhabhi in the said house and had taken away his three children 3 and his brother in the house of his acquaintance and when she went to the house of Raju she found that the door was locked from outside, on which she became suspicious that something must have happened inside.
3. Thereafter, she informed the police by visiting the PP Sec. 16 Rohini and after the police staff reached the spot and opened the lock, it was found that deceased was lying dead and blood was scattered all around and in the said complaint she has also expressed suspicion upon Raju Thapa who may have killed his wife Sangeeta. On the said complaint a rukka was written by SI Jai Parkash an FIR U/s 302 IPC was recorded at P.S. Prashant Vihar bearing FIR No. 453/05. SI Jai Parkash got photographs of the spot of crime and siteplan was also prepared at the instance of complainant Seema Gupta and relevant exhibits were also seized from the spot. Crime team was also called there and the relevant exhibits were preserved and the deadbody was sent to mortuary for preservation.
4. The accused was thoroughly searched, at the instance of 4 secret informer the accused was arrested from ISBT Kashmere Gate, from the place from where the buses leave for Anand Vihar, ISBT. Accused also made a disclosure statement and pursuant to the disclosure statement he got recovered the knife used in the crime from the bushes near Ganda Nala and he also got recovered one blood stained jeans/pant which he was wearing at the time of incident which was also seized and deposited in the Malkhana and postmortem of the deadbody was also got conducted and the relevant samples were sent to FSL for forensic evaluation. Statement of the witnesses were recorded by the IO Insp. Ram Mehar Singh who had taken over the investigation from SI Jai Parkash after he visited the spot after recording of DD NO. 43.
5. Upon committal of the case to the court of Sessions, a charge under section 302 IPC was framed against the accused Raju Thapa vide order dt. 7.9.05, to which he pleaded not guilty and claimed trial.
6. The prosecution in order to prove its case has examined 18 witnesses.
5PW1 is Smt. Seema Gupta, the complainant and the star witness of the prosecution.
PW2 is Ramesh Thapa, the brother of the accused, who has turned hostile and has not supported the prosecution case. PW3 is Ajay Kumar Gorey, friend of the accused and another material witness of the prosecution who has also turned hostile. PW4 is H.C. Sajjan Kumar of the crime team, who had visited the spot on 18.5.05 and had taken the photographs of the spot. PW5 is Dr. Anil Shandil, who had conducted the postmortem on the deadbody of the deceased Sangeeta on 19.5.05 and has proved his postmortem report as Ex.PW5/A. He had also identified the knife as Ex.P1/A and clothes which the deceased were wearing at the time of incident as Ex.P2/A, Ex.P3, Ex.P4 and the blood gauze piece having blood as Ex.P5.
PW6 is SI Jai Parkash, the initial IO of the case, who has visited the spot on 18.5.05 after he received the information from the complainant Seema Gupta vide DD No. 43.
PW7 is H.C. Tasvir Singh, who was the duty officer posted at 6 P.S. Parshant Vihar on the date of occurrence and who had recorded the FIR Ex.PW7/A on the rukka sent by SI Jai Parkash. PW8 is SI Manohar Lal, Draftsman, who had prepared the scaled siteplan on 17.6.05 Ex.PW8/A. PW9 is Const. Sukhbir Singh, who was posted as duty officer at P.S. Prashant Vihar on 18.5.05 and had recorded the DD No. 43 which is Ex.PW9/A on the information of Seema Gupta. PW10 is H.C. Om Parkash, who was working as MHC(M) in the said Police Station, during the relevant period with whom various sealed parcels were deposited by the IO, for safe custody and preservation and who had also sent the relevant samples to FSL for forensic examination on the instructions of the IO. PW11 is constable Jagbir Singh and PW12 Constable Radha Kishan, both had also accompanied SI Jai Parkash the initial IO to the spot on receipt of DD No. 43.
PW13 is Constable Dinesh Kumar who has deposited the relevant sealed parcels with the FSL Rohini, on 5.8.05 after collecting the same from MHC(M).
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PW14 is Ms. Shashi Bala, Senior Scientific Assistant, FSL Rohini. She has proved her report as Ex.PW14/A and Ex.PW14/B. PW15 is SI Mukesh Kumar who was incharge crime team and who had visited the spot on 18.5.05 alongwith H.C. Sajjan Kumar and H.C. Dharam Pal(Finger Print Expert) and he has proved his report as Ex.PW15/A. PW16 is SI Praveen Kumar, who had accompanied the IO and had got arrested the accused from ISBT on 19.5.05 and in whose presence the accused was arrested and accused had made a disclosure statement and had got effected the recovery of knife and blood stained jeans pursuant to his disclosure statement. PW17 is ASI Sudama Sharma, who had taken some part in the investigation(s).
PW18 is Inspector Ram Mehar Singh who has deposed regarding the entire investigation as was carried out by him during the course of the present case.
7. Thereafter, the statement of the accused U/s 313 Cr.P.C. was recorded in which the defence of the accused was that he does not 8 know anything about this case since he was out of station on the relevant date and he had been falsely implicated in this case by the police officials. However, he chose not to lead any defence evidence.
8. I have heard the Ld. Defence counsel Sh. Pardeep Chaudhary and Ld. Addl. PP Sh. G.S. Guraya for the state.
9. The Ld. Defence counsel has argued that in the present case, there is no direct evidence in favour of the prosecution and the entire case of the prosecution is based upon the circumstantial evidence and in the present case all the material prosecution witnesses have turned hostile and have not supported the prosecution case and two real sisters of the deceased namely; Smt. Radhika and Smt. Kanchi have not been examined by the prosecution as both were not traceable and there is no evidence on the record that the accused was last seen with the company of the deceased who was his second wife in his house and as per the defence of the accused he was not present at the house at the time of incident and the prosecution has not lead any evidence on record 9 to prove this fact that the accused was present at the house or was last seen in the company of the deceased around the date of incident. Therefore, the entire chain of circumstantial evidence sought to be lead on the record by the prosecution is not complete and as per settled law since the prosecution has failed to prove the entire chain of circumstantial evidence beyond reasonable doubt to prove the guilt of the accused, therefore, accused deserves to be acquitted.
10. He has further argued that in the present case, the keys of the house were given to the police officials when they visited the spot on 18.5.05 by the landlady of the said house Smt. Seema Gupta and it is not the case of the prosecution that the keys of the said house which was found locked were recovered at the instance of the accused or that lateron accused got recovered another set of keys of the said house.
11. He has further argued that the recovery of knife and blood stained jeans/pant pursuant to the disclosure statement of accused as per the prosecution story is highly doubtful as admittedly no 10 public person was joined during the recovery of said blood stained jean/pant and knife and all the recoveries were made from a public place accessible to all and therefore, in view of the settled law the same can not be said to be valid recoveries and therefore, he has argued that prosecution has failed to prove its case against the accused beyond reasonable doubt and therefore, accused deserves to be acquitted. He has relied upon the following judgments:
1. 2008 AIAR(Criminal) 196,
2. 2008 AIAR(Criminal) 139
3. 2008 AIAR(Criminal)862
4. 2008 AIAR(Criminal) 423
5. 2008 AIAR(Criminal) 897
12. On the other hand, Ld. Addl. PP for the State has argued that it has been proved by the prosecution that deceased was the second wife of the accused and he had two kids from her previous wife and one kid from the deceased. He has further argued that chain of circumstances starts when Ramesh Thapa contacted the landlady PW1 Smt. Seema Gupta and in the present case, the death of the wife of the accused had taken place in the dwelling 11 house in which both of them were residing together as husband and wife, therefore, in view of the judgments of the Hon'ble Supreme court in Ponusamy Vs. State of Tamil Nadu 2008 III AD(Cr.)(S.C.)309 and Trimukh Maroti Kirkan Vs. State of Maharashtra 2007 Crl.L.J.20, wherein it has been held that:
"Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed in the dwelling home where the husband also normally resided. It has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."
13. The burden was upon the accused to explain how and under what circumstances his house was locked from outside and when the said lock was opened, his wife was found dead, and various 12 injuries were found on her body and as per the postmortem report, she had also been strangulated to death and he has argued that conduct of the accused was very strange as he was not present before the room, where the deadbody of his wife was lying at the time of incident and he had been arrested on the next day from ISBT Kashmere Gate and pursuant to his disclosure statement had got recovered the knife/meat chopper used in the commission of offence and blood stained Jeans/pant which he was wearing at the time of incident which he got recovered from the bushes of the drain behind old Chowki Sector 16, Rohini and the said recovery of weapon of offence and blood stained Jeans/pant duly corroborates the prosecution story that it was only the accused who had committed the murder of his wife and further once the prosecution has been able to prove this fact, the onus shifted upon the accused to give some explanation, as to how his wife was found dead in the house in which both of them lived together, as the accused had not given any explanation in his statement U/s 313 Cr.P.C except his bald statement that at the time of incident he was out of station, 13 therefore, in view of the afore judgments of the Hon'ble Supreme Court, the prosecution has been able to prove its case against the accused beyond all sorts of doubt and further the prosecution has able to prove the entire chain of circumstantial evidence, which is so complete and does not leave any reasonable doubt for any conclusion, except that it was the accused who had committed the murder of his wife, therefore, he has argued that the prosecution has been able to prove its case against the accused beyond all sorts of reasonable doubt.
14. I have gone through the rival contentions of both the Ld. Defence counsels and the Ld. Addl. PP and have perused the record.
15. In the present case, there is no direct evidence and the entire case of the prosecution is based upon circumstantial evidence. In the case of Mohmood Vs. State of U.P. (1976) 1 SCC 542, it has been held that "in a case dependent wholly on circumstantial evidence the court must be satisfied-
(a) that the circumstances from which the inference of 14 guilt is to be drawn, have been fully established by unimpeachable evidence beyond a shadow of doubt:-
(b) that the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused; and
(c) that the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis save t hat of the guilt sought to be proved against him".
16. However, in case Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622, the Supreme; Court referred to and relied upon Hanumant Vs. State of Madhya Pradesh, 1952 SCR 1091- AIR 11952 SC 343 and stated the five golden principles constituting the panchsheel of the proof of a case based on circumstantial evidence as follows:
17. (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that ....... the circumstances concerned 'must or should' and knot 'may be' established. There is not only a grammatical but a legal distinction between may be proved' arid 'must be or should be proved'.....
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they 15 should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they; should exclude every possible hypothesis except the one to the proved, and (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.
18.. The following circumstances were pressed into service by the prosecution for establishing the guilt of the accused persons:-
1. Accused had married deceased Sangeeta after his first wife had left him from first wife he had two children and from second marriage with deceased he had one son.
2. That deceased Sunita used to give step motherly treatment to his two children from first marriage of accused by beating them and there used to be constant quarrels between the accused and deceased over this step motherly treatment.
3. On the night of 17/18-5-05 he had a big quarrel with the 16 deceased Sunita over his two sons from the first marriage and accused had also beaten her up in the presence of his three children and his brother Ramesh.
4. Accused had left his wife Sunita at his house and after leaving Sunita at his dwelling house, which he had taken on rent from complainant Seema Gupta, he left his three children and his brother Ramesh at the house of his friend Ajay Kumar Gorey on the night of the incident.
5. Accused therefore returned to his house at late hours of 17/18.5.05 and attacked his wife with a meat cutting chopper on his neck, thereafter strangulated her to death in the said process his jeans/pant got stained with blood.
6. Thereafter, accused after taking away the said meat cutting chopper and blood stained jeans ran away from his house after locking the same from out side.
7. Brother of accused Ramesh informed her land lady Seema Gupta about the quarrel between his bhabhi and his brother the previous night and that he had left him and three children at the house of his friend Ajay Kumar Gorey after locking his bhabhi in a room.
8. Complainant immediately informed the police and thereafter police and complainant reached the house of accused after opening the lock and it was found deceased 17 Sunita was lying dead in the said house.
9. Accused was arrested on 19.5.05 from ISBT Kashmere Gate. He made a disclosure statement and got recovered knife/chopper weapon of offence and blood stained jeans.
Postmortem report also corroborated the injuries found on the body of the deceased Sunita.
19.. After appreciation of the evidence, it has to be seen whether the prosecution has been able to prove the various circumstances beyond reasonable doubt, as enumerated above.
20.. Regarding the circumstance (1), from the testimony of PW2 Ramesh Thapa, the brother of the accused, it is proved that the accused had married with deceased Sangeeta after his first wife Usha had left him and from the first marriage he had two children and from the second marriage with the deceased he had one child. In these circumstances, circumstance no.1 has been proved by the prosecution beyond any reasonable doubt.
21.. Regarding the circumstance no. 2 & 3, they are taken up together as both of them are inter-connected with each other. No evidence has been lead by the prosecution on this aspect as both 18 the material witnesses of the prosecution namely PW2 Ramesh Thapa, the brother of the accused and PW3 Ajay Kumar Gorey have turned hostile and have not supported the prosecution case despite lengthy cross-examination by the ld. Addl. PP and the two sisters of the deceased Sangeeta namely Smt. Radhika and Kanchi @ Meena have not been produced by the prosecution as both of them were not traceable and there is no other witness who has deposed regarding the circumstance no.2 & 3, which pertains to the motive part of the prosecution case. In the absence of any evidence, the circumstance no.2&3 are held not proved by the prosecution.
22.. Regarding the circumstance no.4, the prosecution has examined PW2 Ramesh Thapa, brother of the accused and PW3 Ajay Kumar Gorey, the friend of the accused but, both of them have turned hostile and have not supported the prosecution case despite lengthy cross-examination by the public prosecutor. It has only come in the cross-examination PW2 Ramesh Thapa when he was cross-examined by the Ld. Addl. PP after declaring him hostile in 19 answer to certain suggestions given by the public prosecutor, wherein he has admitted as under:
"It is correct that police had recorded my statement. I do not remember as to when my brother Raju Thapa had left myself and my nephew at the house of Ajay Kumar on the night of incident".
He has further admitted as under:
"I did not return to the house of Raju Thapa after when myself and my nephew were left at the house of Ajay Kumar Gorey in the night of 17/18 May, 2005. I do not know whether Ajay Kumar used to visit the house of my brother."
He further admitted as under:
"I do not know as to at what time in the intervening night of 17/18 May, 05, I kept sleeping."
23.. Further PW3 Ajay Kumar Gorey, at whose house the accused allegedly left his children and his brother Ramesh Thapa on the date of the incident, has not supported the prosecution story at all despite lengthy cross-examination by the ld. Addl. PP. He has 20 denied that accused had left his children and brother on the night of 17/18.5.05 at 2.30a.m at his house and had told him that he should make arrangement for sending them to Nepal. Though the prosecution has only lead evidence of PW2 Ramesh Thapa on this aspect as discussed above, which is also of very weak character and vague nature, which has only come out in the cross- examination of PW2 Ramesh Thapa in the nature of suggestions as stated above, and it is not affirmative in nature, from which an inference can be drawn that he alongwith his nephews were left by accused Raju Thapa at the house of Ajay Kumar Gorey on the night of incident and that they did not return back to their house i.e. the house where accused and the deceased were residing as husband and wife. Yet, in view of the judgment of Hon'ble Supreme Court in Khujji @ Surendera Tiwari Vs. State of M.P., 1991 Cr.L.J 2653, wherein it was held as under:
"Evidence of hostile witness cannot be rejected into merely because prosecution choose to treat him hostile and cross-examined him-
evidence of such hostile witness cannot be 21 treated as affaced or washed off record altogether-same can be accepted to extent their version is found to be dependable on careful scrutiny thereof-if other evidence corroborate testimony of hostile witness same can be relied upon in reaching conclusions."
24.. In view of afore judgment said deposition of PW2 is admissible in evidence. From the aforesaid deposition of PW2 extracted in his cross-examination by public prosecutor, the prosecution has been able to prove that accused left his children and brother on the night of the incident at the house of his friend Ajay Kumar Gorey. Therefore, in view of aforesaid discussion, the circumstance no.4 is held proved by the prosecution.
25.. Regarding the circumstance No. 5 & 6, they are taken up together as they are interconnected with each other. The prosecution has not lead any evidence to prove, that after leaving his children and brother Ramesh Thapa at the house of his friend Ajay Kumar Gorey on the night of 17/18.5.05, the accused returned back to his house at F-7/93, 2nd floor, Sec. 16, Rohini, which was 22 the house which he had taken on rent from PW1 Seema Gupta.
26.. As no witness has deposed on behalf of the prosecution that accused after leaving his children at the house of Ajay Kumar Gorey PW3 returned back to his house/flat at Rohini and thereafter had attacked his wife Sangeeta with the meat chopper on her neck and strangulated her to death and in the process his jeans/pant got blood stained and after changing the jeans/pant and after taking away the meat chopper he ran away from his house after locking the same from outside.
27.. Ld. Addl. PP for the State has relied upon the judgment Trimukh Maroti Kirkan Vs. State of Maharashtra 2007 Crl. L.J.20(Supra), and has argued that in the present case there could not have been, any direct evidence or any witness who could have seen the accused killing his wife, as the said crime had taken place in the four walls of the house of accused and in the privacy of his house and in these sort of cases, it will be extremely difficult for the prosecution to leave evidence to establish the guilt of the accused, if strict principle of circumstantial evidence is insisted upon by the 23 court and in the present case admittedly the accused was residing together with his wife deceased Sangeeta, and the death of the deceased Sangeeta has taken place in the dwelling house of the accused and in view of the aforesaid judgment accused should offer some sort of explanation, as to how his wife received injuries by virtue of Section 106 of the Indian Evidence Act and the accused can not get away by simple keeping quite and offering no explanation, on the supposed premise that the burden to establish its case entirely lies upon the prosecution and there is no onus at all on the accused to offer any explanation. He has further argued that in the present case, the explanation furnished by the accused regarding the said crime, is very vague in nature, as the accused in his statement recorded U/s 313 Cr.P.C. has simply stated that he was out of station on the date of incident. He has not specifically stated as to where he had gone on the date of occurrence. No specific place has been mentioned nor any evidence has been lead by the accused on the said aspect. Therefore, necessary inference which can be drawn, is that accused has committed the offence of 24 killing his wife Sangeeta. In these circumstances, prosecution has been able to prove that it was the accused who had committed the murder of his wife and therefore, circumstance no.5&6 stands proved by the prosecution.
28.. On the contrary, ld. Defence counsel has argued that the same is not the case, the prosecution had to establish by way of positive evidence on the record, that the accused was present at his dwelling house on the date of incident and that he was seen by somebody either shortly, before and after the incident. So that criminal liability can be fastened upon him, which is not the case in hand, as no prosecution witness has stated that they had either seen the accused returning to his flat near the time of incident or leaving his house around the time of incident and since the initial burden of proving the presence of the accused in his house rested upon the prosecution, which has not been discharged. Consequently, burden never shifted upon the accused U/s 106 of the Indian Evidence Act to offer an explanation.
29.. I have considered the said contentions. In the present case 25 admittedly, there is no eye witness who had seen the accused returning back to his house after leaving his children and brother at the house of Ajay Kumar Gorey on the date of incident. Further there is no eye witness who had seen the accused leaving his house around the time of occurrence and it was the primary duty upon the prosecution to lead by positive evidence on the record that accused was present at his dwelling house at the time of occurrence or around the time of occurrence or that he was last seen in the company of the deceased immediately before the occurrence or after that and it has been held in judgment AIR 1956 SC 404: 1956 Cr. LJ794, Sec. 106 is an exception to Sec. 101 which places the burden of proving a criminal charge fairly and squarely on the prosecution.
It has further been held in judgment AIR 1956 SC 404: 1956 Cr. LJ 794, Sec. 106 is not intended to dispense with the rule of law that the burden is on prosecution except in very exceptional cases. It has further been held in judgment AIR 1959 SC 1390: 1959 Cr.LJ 1508, prosecution can not raise suspicion only and then 26 throw the burden on the accused.
30.. In view of the aforesaid settled proposition of law, the burden of proving criminal charge clearly and squarely rests upon the prosecution and it was the incumbent duty of the prosecution to prove by leaving positive evidence on the record, the presence of the accused at his dwelling house around the time of incident or that he was last seen in the company of the deceased only then the onus would have shifted upon the accused to explain the circumstances under which the injuries had been received by his wife at his dwelling house which has not been done, therefore, in my respectful view judgment Trimukh Maroti Kirkan Vs. State of Maharashtra 2007 Crl. L.J. 20 (Supra) is not applicable to the peculiar circumstances of the present case, simply, as the onus never shifted upon the accused, as the prosecution has not been able to prove the presence of accused in his dwelling house or that he was last seen in the company of his wife/deceased, around the incident, it may be that the accused has taken a vague defence in his statement U/s 313 Cr.P.C, that he was out of station on the date 27 of occurrence, but the explanation of the accused would have come into play only, if the prosecution had been able to discharge its aforesaid burden.
31.. Both the judgments relied upon by the prosecution Ponusamy Vs. State of Tamil Nadu 2008 III AD(Cr.)(S.C.)309 and Trimukh Maroti Kirkan Vs. State of Maharashtra 2007 Crl.L.J.20,(Supra) are not applicable to the facts and circumstances of the present case in my respectful view, as in both the aforesaid judgments there was either last seen evidence or there was a circumstance where a wrong information had been given by the accused to the public and the police regarding the cause of the death of his wife coupled with that in those cases the motive had also been clearly established by the prosecution which in the present case, the prosecution has failed to prove as the prosecution has failed to prove the circumstances no. 2&3 discussed above.
32.. Further in the present case, the prosecution has failed to give any explanation, how the keys of the flat of the dwelling house of the accused were provided by PW1 Seema Gupta the landlady of 28 the accused, as all the material prosecution witnesses including PW6 SI Jai Parkash who initially went to the spot alongwith the complainant and PW11 constable Jagbir who had also accompanied SI Jai Parkash PW6 to the scene of crime alongwith the complainant and constable Radha Kishan have all deposed in their cross-examination that the keys of the house was handed over to them by Smt. Seema Gupta. The prosecution has miserably failed to give any explanation as to how the keys of the dwelling house of the accused had come into the possession of the Landlady and how she provided the keys to the police party which went to the spot in the evening of 18.5.05.
33.. It is not the case of the prosecution that the said landlady PW1 Smt. Seema Gupta was having duplicate set of keys, as it is no where the case of the prosecution. Neither the IO has furnished any explanation as to what happened to the keys of the house, as the accused as per the prosecution story had gone away after killing his wife after locking her from outside. There is no whimper or whisper regarding the keys either in the disclosure statement of the accused 29 or in the evidence of the IO. In the absence of accused being in possession of the keys, the prosecution has failed to prove that accused alone had the access to the dwelling house and no one else and it is not the case of the prosecution that the lock was broken by the police party when they went to the dwelling house of the accused in the evening of 18.5.05 to inspect the same. The solution to the riddle to the key of house has not been provided by the prosecution nor the key had been recovered during the Jamatalashi of the accused. In the absence of this key factor, it has not been proved by the prosecution that the accused had the access to his dwelling house on the date of the incident i.e. on the night of 17/18.5.05. Therefore, the prosecution has miserably failed to prove the circumstances no.5&6.
34.. Regarding the circumstances No. 7&8 they are taken up together, as they are interconnected, PW1 Smt. Seema Gupta the landlady of the house of accused has stated that she was the owner of H.No. F7/93, Sector 16, Rohini, Delhi, which was let out to the accused where the accused was living alongwith his wife 30 children and brother and that on one day brother of accused had came to her and informed her about the dispute on previous night between the accused and his wife and thereafter, his brother left with the children leaving his bhabhi in the room after locking the door and she asked him why he had not come when the quarrel had taken place. Thereafter, they went to the police chowki and returned to their house with police and in her presence the lock was opened and the dead body of Sangeeta was in the room and the blood was scattered on the floor and her statement was recorded by the police which is Ex.PW1/A. Though, that part of statement of PW1, wherein she stated that she was told by the brother of the accused that on previous night there was a quarrel between his brother and his bhabhi and that he had left leaving his bhabhi in the room after locking the door is not admissible as the same falls in the realm of hear say evidence, but her statement is relevant U/s 8 of the Indian Evidence Act, to show the conduct of the brother of the accused PW2 Ramesh Thapa, that he had contacted PW1 on 18.5.05 and had apprised her that some mis-happening had taken 31 place in the dwelling house of his brother where his bhabhi also resided.
35.. PW1 Seema Gupta has also stated that thereafter she went to police chowki with the brother of the accused and returned to her house with the police and in her presence, the lock of the house was opened and there was a dead body of Sangeeta in the room and blood was scattered on the floor. The body was lying on the ground near the bed. There was foul smell in the room. Photographs of the dead body was also taken. Similarly, is the testimony of SI Jai Prakash PW6, who has deposed that on 18.05.2005, when he was posted as Incharge police post Sardar Colony Chowki, Sector-16, Rohini, on that day, at about 6:40 p.m, one Seema Gupta came and informed in the police post vide DD No.43 that some quarrel took place between her tenant. Thereafter, he along with Ct. Jagbir and Radha Kishan reached at the spot at his house No. X-7/93, Sector-16, Rohini.
36.. On the pointing out of the complainant, one room of the flat at second floor was opened and it was found that a dead body of a 32 lady was lying between the bed and wall of the room in pool of blood. SHO was informed. Crime team and dog squad was also called. The dead body of the lady was having injuries on her neck and head and her statement was also recorded and thereafter he got the FIR registered through Ct. Jagbir. Crime team and photographer reached the spot and the crime team also inspected the spot and SHO also took into possession one sample of blood stained cloth and one sample of floor piece, which was seized vide memo Ex.PW6/B and Ex.PW6/C. PW11 & PW12 have also deposed on the same lines. Nothing has come out in their cross- examination which could make their versions doubtful. Though, PW6 was asked in his cross-examination that no public persons were joined in the investigation, but since PW1 was present at the spot while opening the door of the house of the accused. It leads sufficient credibility to the statement of PW1 & PW6 and PW11 that on opening the door of the house of the accused, the dead body of his wife was found lying on the floor near the bed and blood was also scattered around the floor, which is even otherwise proved by 33 the photographs Ex.P1 to P6 and the negatives are Ex.P8 to P14, which have been proved by the photographer PW4 HC Sajjan Kumar of the crime team and his deposition has gone unchallenged and the spot of occurrence is also proved by the FSL report Ex.PW14/B, as on the sample of the blood stained floor the blood of A group was found which also matches with the blood of the deceased, which is also having A grouping.
37.. Therefore, the prosecution has been able to prove circumstance 7 & 8. Though, the prosecution has not been able to prove that the accused had left his children and brother at the house of Ajay Kumar Gorey, due to the quarrel between the accused and deceased Sangeeta on the previous night after looking his bhabhi in a room.
38.. Regarding the circumstance 9. As per the prosecution case, the accused was arrested from ISBT Kashmiri Gate on an information and accused was apprehended from ISBT Kashmiri Gate, DTC Terminal meant for buses, leaving for Anand Vihar and accused was apprehended at the instance of secret informer and 34 he was interrogated and he disclosed his name as Raju Thapa and was arrested vide arrest memo Ex.PW16/B and he also made a disclosure statement Ex.PW16/C and lead the police party to the spot and identified the place of occurrence and thereafter he lead the police party to Sector-16, Ganda Nala near Purani police chawki and got effected recovery of blue jean pant, having blood stains on it and disclosed that it was the same pant which he was wearing at the time of incident, which was also seized and thereafter he also got effected the recovery of blood stained chhuri from the place and disclosed that it was the weapon of offence, which was also seized.
39.. The prosecution story on this aspect has been corroborated by the testimony of PW16 SI Praveen Kumar, PW18 Inspector Ram Mehar, who is also I.O of this case.
40.. Ld. Defence counsel has attacked the testimony of PW16 & PW18 on the ground that the depositions of PW16 & PW18, regarding the recovery of blood stained jean pant and chhuri, which is alleged to be the weapon of offence is highly doubtful, as despite 35 settled law no public person was joined in the said recoveries and the place from where the said recoveries were effected was accessible to the public at large and it was not the case of the prosecution that the said jean pant and chhuri was concealed by accused at a place, which could have only been known to the accused or could have been said to be within the knowledge of the accused only. In this regard, he has relied upon a judgment Sanjeev Puri Vs. State of Delhi 1996(1) CC Cases 223(H.C).
41.. He has also argued that all the aforesaid recoveries are even otherwise doubtful as PW16 SI Praveen Kumar had stated in his examination-in-chief, recorded on 02.04.2008 that accused was apprehended at Anand Vihar, Bus Terminal, whereas PW18 had stated that the accused was apprehended from ISBT, Kashmiri Gate, which shows that the entire prosecution story, regarding the aforesaid recovery is highly doubtful. He has further argued that prosecution in order to clarify this had even recalled this witness PW16 SI Praveen for his further examination-in-chief on 16.10.2008, when he stated that in regard to the Anand Vihar Bus 36 Terminal, he meant to say the portion of ISBT Kashmiri Gate from where local DTC Buses for Anand Vihar depart. Therefore, he has argued that the entire recoveries shown by the prosecution are highly doubtful.
42.. On the other hand, Ld. Addl. PP has argued that there is no infirmity in the testimony of the prosecution witnesses and recovery has been made from a place, which can only be said to be within the knowledge of the accused and no one else.
43.. I have gone through the rival contentions, it is settled law as held by the Hon'ble Supreme Court in judgment Mohd. Inayatullah Vs. State of Maharashtra (AIR 1976 SC 483) that only that part of disclosure statement of the accused which leads to discovery of some fact is admissible in evidence and that part of the disclosure statement which leads to no discovery of any fact, is not admissible in evidence under section 27 of the Indian Evidence Act. In view of the said judgment only that part of the disclosure statement of the accused Ex.PW16/C, whereby he stated that he could get recovered jean pant and knife from behind the old chowki near the 37 pul of ganda nala from behind the bushes is admissible as the same is permissible under 27 of the Indian Evidence Act. However, it is the admitted case of the prosecution, that no public person was joined in the investigation(s) during the recovery of aforesaid jean pant and chhuri and as per section 100 of the Criminal Procedure Code, no public person was joined or given any notice on his failure to join the investigation(s) and it is settled law that in such cases public person or independent witnesses should be joined, so as to lead assurance to the recoveries made by the police.
44.. PW16 SI Praveen Kumar in his cross-examination has admitted that from the place, where the recovery of knife and jean pant was made is easily accessible and he has further stated that he cannot say if the place of recovery is frequented by nearby jhuggi dwellers to answer the call of nature. Further PW16 when he was examined and discharged on 02.04.2008, stated that accused was arrested from Anand Vihar Bus Terminal, thereafter he was recalled by the prosecution on 16.10.2008, when he stated that by Anand Vihar Bus Terminal, he meant to say the portion of ISBT, 38 Kashmiri Gate, from where local bus for Anand Vihar depart, which is material improvement in the testimony of PW16 from his earlier statement, recorded on 02.04.2008, as there almost a distance of 10-15 kms between Anand Vihar Bus Terminal and ISBT, Kashmiri Gate and prosecution has failed to explain this material lapse on the part of PW16.
45.. Further, PW16 & PW18 have admitted in their cross- examination that no ticket or suitcase or clothes were recovered from the possession of the accused at the time of apprehension of the accused, which is strange as it is the case of the prosecution that accused at that time had made preparation(s) to ran away to Nepal, yet it is strange that no clothes or suitcase or ticket was found from the possession of the accused, if the accused had made arrangements and plans to escape to Nepal then he should at least would have been in possession of some clothes, tickets or suitcase, which is not the case in hand. Further during the personal search of the accused only Rs. 200/- were found, from the possession of the accused, which would been totally insufficient to purchase even a 39 ticket for Nepal. Further admittedly no public person or independent witness was also joined at the time of arrest, though the place from where he was apprehended is a bustling public place, which is always free of activities and rush throughout the night and public persons are freely available at the ISBT, Kashmiri Gate around the clock at all hours of the day and for which no plausible explanation has been furnished by the prosecution.
46.. Even, the jeans/pant, which has been exhibited in the court as Ex.P6, has not been proved by the prosecution to be belonging to the accused, as it is not the case of the prosecution that the said jean pant was got identified by the prosecution from any member of the family of the accused nor statement of any tailor or any witness had been recorded, who could say that the said jeans pant was wore over by the accused and same completely fitted his size, nor the same jean pant was put to PW2 Ramesh the brother of the accused as he would have been the best witness to depose this fact that the said jean pant belonged to his brother accused Raju Thapa and the defence of the accused regarding the jean pant in 40 his statement under section 313 Cr. PC, is that the same has been planted upon him.
47.. Therefore, in view of the aforesaid discussion, the recovery of knife/chopper and jeans pant pursuant to the disclosure statement of the accused have not been proved by the prosecution. On the postmortem of the deceased Sangeeta following injuries were found on her body vide postmortem report Ex.PW5/A, which has been proved by PW5 DR. Anil Shandil. On external examination, following injuries were found:-
1. Incised wound of size 6.5 cm x 1.00 cm x S.C. Deep present on middle of neck almost para8llely arranged on either side of midline with clean cut well defined d regular margin with dried up blood and clots and tapering towards right , 5.4 cm. From hyper extended chin.
2. Incised wound of size 5.00 cm X sub cutaneous deep (superficial depth) too muscle deep over right shoulder with clean cut well defined regular margins with dried up blood and clots.
3. Incised wound of size 7 cm X 0.5 cm X muscle deep left side of neck posterior aspect tapering forward 20 cm. From 41 angle of mandible with clean cut well defined regular margin.
4. Two incised wound on palmar aspect of left hand one at the level of wrist joint; 2.1 cm X 0.4 cm. And other distally t 2 cm X 0.5 cm. Sub cutaneous deep (superficial depth) with clean cut well defined regular margin with dried up blood and clots.
5. Bilateral swelling and bruising of malar of face, chin, both lips, nose and swelling both eyes. On incison underneath tissues found contused with effused radish blood and clots.
Neck. Multiple crescentric (nail scratch) abrasion marks over front of neck base of chin varing in size from 1 cm X 0.2 cm. To 0.8 cm X 0.2 cm. with pressure impression marks of thumb and other fingers (digital impression) round to over shape of size 1.5 cm X 0.5 cm. To 0.8 cm X 0.4 cm.
Internal Examination:
Head: Sub scalp extravasation of blood and clots over frontal and left temporal aspect of size 4 cm X 0.8 cm and 2 cm X 3 cm reddish in colour. Brain matter congested, edematous with petechials.
Neck: On dissection of neck extravasation of blood and clots 42 seen in underlying tissues of neck, strap muscles, with fracature of hyoid bone and tracheal and laryngeal cartilages. Other abdominal and thoracic viscera congested.
Cause of death is asphyxia resulting from mannual strangulation and forceful closer of external air passage mouth and nose which was sufficient to cause death in ordinary course of nature.
Injuries No. 1 to 4 are simple ante mortem in nature and caused by sharp edged weapon. Time since death is approximately about 36 hours.
Though doctor has opined that the injuries No.1 to 4 are antemortem in nature and have been caused by sharp edged weapon and he has further opined when the weapon of offence was sent for subsequent opinion as under:-
The injuries mentioned in postmortem report could be possibly caused by the examined weapon of offences or similar like weapon. The postmortem report is Ex.PW5/A, which bears my signature at point A and B.
48. However since the recovery of knife and the blood stained jean as 43 discussed above have not been proved by the prosecution for the detailed reason discussed above. It does not help the case of the prosecution in any way and it does not support the prosecution story that the accused had inflicted those injuries on the body of the deceased with knife/chopper.
49. From the aforesaid detailed analysis of evidence lead by the prosecution, the following circumstances have been clearly established:-
1. Accused had married deceased Sangeeta after his first wife had left him from first wife he had two children and from second marriage with deceased he had one son.
4. Accused had left his wife Sunita at his house and after leaving Sunita at his dwelling house, which he had taken on rent from complainant Seema Gupta, he left his three children and his brother Ramesh at the house of his friend Ajay Kumar Gorey on the night of the incident.
7. Brother of accused Ramesh informed her land lady Seema Gupta about the quarrel between his bhabhi and his brother the previous night and that he had left him and three children at the house of his friend Ajay Kumar Gorey 44 after locking his bhabhi in a room.
8. Complainant immediately informed the police and thereafter police and complainant reached the house of accused after opening the lock and it was found deceased Sunita was lying dead in the said house.
50. Now, it has to be seen whether from the aforesaid circumstance(s), which have been established by the prosecution beyond any sort of doubt, whether the circumstance so established unerringly points towards the guilt of the accused and whether the circumstances taken collectively are incapable of explanation of any reasonable hypothesis, save that of guilt of the accused and whether the circumstances proved by the prosecution form a chain so complete, so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
51. The afore circumstances proved by the prosecution does not lead to an inference, that accused alone had committed the offence, as there are lot of links missing in the prosecution chain of 45 circumstances. The benefit of which must go to the accused, even at the risk of repetition. The prosecution has failed to prove the following major circumstance(s).
1. It was the primary duty of the prosecution to lead by positive evidence on the record, that the accused was present at his dwelling house or that he was last seen in the company of the deceased in his dwelling house, which was required to be proved by the prosecution, then only the onus would have shifted upon the accused under section 106 of the Indian Evidence Act, to explain under what circumstance injuries had been received by his wife at his dwelling house, which has not been done.
2. The prosecution has miserably failed to explain, as to how the keys of the dwelling house of the accused had come into the possession of his landlady and how she provided the keys to the police party, which went to the spot in the evening of 18.05.2005 and opened the locked door of the house of the accused with said keys and it is not the case of the prosecution that said landlady PW2 Seema Gupta was having duplicate set of keys. In the absence of the accused being found in the possession of the keys of his dwelling house, the prosecution has failed to prove that the accused alone had the access to his dwelling house and no one else. 46
3. The recoveries relied upon by the prosecution in this case, namely, recovery of blood stained chhuri/chopper and blood stained jeans pant have not been satisfactorily proved by the prosecution beyond reasonable doubt, which discussing the circumstance(s) No. 7 & 8 above.
4. Further no reasons has been given by the I.O as to why he had not examined the two minor children(s) of the accused Raju Thapa, as PW2 Ramesh Thapa has stated in his deposition, that he does not know the exact age of the elder son Shobin, but his height is up to his shoulder and Sajan was next as their depositions might have proved the motive part of the prosecution story and the fact that there used to be constant disputes between the accused and his deceased wife. Further, I.O has failed to give any explanation as to under what circumstance(s) PW1 Seema Gupta was found in the possession of the keys of the dwelling house of the accused. There has been no explanation furnished by the I.O, as to what happened to the keys of the house which as per the prosecution story were with the accused Raju Thapa, as per the prosecution version he had gone away from his dwelling house, after locking the same from outside. There is no whisper about the said fact either in the disclosure statement of the accused or in the statement of the I.O, though it is settled law that the faulty 47 investigation is not to effect the prosecution case, if it is otherwise found credible. However, the aforesaid lapses are serious lapses on the part of the I.O, which cannot be said to have occurred due to faulty investigation(s).
5. Further perusal of the scaled site plan Ex.PW8/A shows, that there was one more flat on the second floor, where the dwelling house of the accused was situated yet no neighbour of the accused had been examined as a witness, as the said scaled site plan reveals that the said flat No. F7/95 is adjacent to the dwelling house of the accused and the said neighbour would have been an important witness, who may have seen or heard something important about the occurrence, which had taken place on the fateful night in the house of the accused.
52. The afore serious lapses on the part of the I.O, cannot be set to be part of the faulty investigation(s) rather it seems to have occurred either due to the lack of knowledge or training, apathy or for some other ulterior motives.
53. Ld. Defence counsel has relied upon the judgment 2004(2)C.C. Cases (SC)355, in which it was held as under:-
"A strong suspicion, no doubt, exists 48 against the appellant but such suspicion cannot be the basis of conviction, going by the standard of proof required in a criminal case. The distance between 'may be true' and 'must be true' shall be fully covered by reliable evidence adduced by the prosecution. But, that has not been done in the instant case. It, coupled with the circumstance unfolded by the evidence of PW3, the evidence of PW4 had been believed, it would have gone a long way in substantiating the prosecution case. But, in the instant case, apart from the fact that the appellant was at his house on the morning of 20th April, 1996, there is no other circumstance whatsoever which connects the accused to the crime, though serious suspicion looms large about his involvement. The view taken by the Trial Court that the prosecution could not establish the complete chain of circumstances incriminating the accused is a reasonably possible view and the High Court should not have disturbed the same. Having regard to the state of available evidence, the benefit of doubt given to the 49 accused by the Trial Court warranted no interference by the High Court".
Which judgment to my mind is squarely applicable to the fact and circumstances of the present case, though there is some suspicion or doubt, which exists against the accused, that he might have committed the offence in question, but such suspicion cannot be made a basis for the conviction of the accused going by the standard of proof required in a criminal trial, as in a criminal trial the prosecution has to prove its case against the accused beyond all sorts of reasonable doubt and suspicion however strong cannot take the place of proof. In view of the afore going discussion, there is nothing on the record to connect the accused with the commission of the offence under section 302 IPC for which he has been charged. Consequently, accused is acquitted by giving him benefit of doubt. He be released from judicial custody, if not required in any other case. File be consigned to record room.
Announced in the open court. (Sanjeev Aggarwal)
on 22.09.2009 Addl. Sessions Judge
Rohini Courts: Delhi.
50
State Vs. Raju Thapa
FIR No.453/05
U/s 302 IPC
PS Prashant Vihar
22.09.2009
Present:- Sh. G.S. Guraya,Ld. Addl. PP for the state.
Accused is present from J.C. Vide separate detailed judgment of even date, pronounced in the open court today, the accused Raju Thapa is acquitted of the charge U/s 302 IPC. He be released from judicial custody, if not required in any other case. File on completion be consigned to record room.
ASJ/Rohini/Delhi/22.09.2009.