Delhi District Court
State vs Kunwar Singh Sc No. 76/2010 1/22 on 28 February, 2012
Unique ID No. 02406R0310792010
IN THE COURT OF SH. VINAY KUMAR KHANNA,
ADDITIONAL SESSIONS JUDGE04 (SOUTH EAST)
SAKET COURTS: NEW DELHI
Sessions Case No.76/2010
Unique ID No. 02406R0310792010
FIR No. 481/2008
U/s. 302 IPC
PS : Sangam Vihar
State
Versus
Kunwar Singh
s/o Sh. Roop Singh
r/o GA/111B, Pul Prahlad Pur,
PS : Sangam Vihar. ......Accused
Instituted on : 17th February, 2009
Arguments concluded on : 28.02.2012
Judgment pronounced on :28.02.2012
J U D G M E N T
Accused in this case was tried for the commission of offence punishable u/s 302 of Indian Penal Code. Briefly stated, the case of the prosecution is, that at about 05:10 am, on 15.08.2008 Constable Vijay Kumar received an information vide DD No. 35 from Police Control Room regarding hanging of one lady at EA111B, Pul Prahladpur. Assistant SubInspector (ASI) Satbir Singh alongwith Constable Kuldeep reached at the spot at GA111B, Prahladpur and noticed that a lady was found in hanging position with a plastic rope . Her both hands were found tied from backside with a chunni. ASI Satbir State vs Kunwar Singh SC no. 76/2010 1/22 Unique ID No. 02406R0310792010 Singh called SHO and crime team at the spot. Photographs were taken. ASI Satbir Singh removed the deceased from hanging position with the help of public persons. He recorded statements of Subhash , brother of deceased and of Santram. ASI Satbir Singh shifted the dead body from the spot to AIIMS hospital and prepared site plan. Postmortem on the dead body of deceased was conducted. According to the Autopsy Doctor, opinion about the death being 'suicide' or 'homicide' could be given only after receipt of viscera analysis report. On 18.08.2008, ASI Satbir singh along with Ct. Kuldeep reached at AIIMS Hospital. He collected parcels of viscera box sealed with the seal of Department of Forensic Medicine and deposited the same in the malkhana. IO/Inspector Satyapal Singh (PW13) recorded statement of Subhash, brother of deceased on 03.09.2008. In his statement dated 03.09.2008, complainant Subhash stated that accused was having illicit relations with a woman, namely Saroj and was having two children out of this relation and there used to be a quarrel on this issue between accused and his deceased wife. Accused used to send deceased at her parental home after beating her and with the intervention of the relatives, they used to send her back to her matrimonial house. Complainant stated that on 11.08.2008, accused along with Bhim Singh came at the parental house of deceased. He abused and threatened them that he would not keep deceased and would keep Saroj with them. Complainant, Subhash and Phire Ram, father of deceased requested accused and Bhim Singh not to do so but he paid no heed and came back. It is alleged that on 12.08.2008 Subhash the complainant, went to the matrimonial house of deceased. He met accused Bhim Singh, Saroj and Bala. All of them insulted him and asked him to take back his sister. When complainant asked his sister to accompany him, she refused and stated that she would remain in her matrimonial house with her children despite whatever had happened to her. On 14.08.2008, Munesh (deceased) telephonically called at the STD booth of Rohtas and talked to the complainant. Complainant stated that she (deceased) asked him to come to her matrimonial house as soon as possible because accused along with Bheem Singh, Bala, Saroj had beaten her and were forcing her to leave the house.
State vs Kunwar Singh SC no. 76/2010 2/22Unique ID No. 02406R0310792010 Complainant Subhash told her that he would reach there either in the evening or next day. According to complainant, Munesh told her that these persons would kill her and asked him to come at the earliest. On 15.08.2008 at about 04:00am somebody made a call at the house of Lekhraj, his neighbour informing him that Munesh had died. Lekhraj informed him about this fact. Sant Ram, alongwith Subhash, Zile Singh, Duli Chand Pradhan and Virender reached at the house of accused and found that a crowd had gathered there and Police was already present. IO made endorsement on the statement of Subhash and an FIR no. 481/08 u/s 302/34 IPC, at PS Sangam Vihar was registered. Site plan was prepared and accused was arrested. On completion of investigation, charge sheet was filed in the Court. Order dated 31.01.2009 shows that a protest petition was filed by the complainant on 05.02.2009 before Learned Metropolitan Magistrate and as per verification of IO, Bhim Singh, Bala and Saroj were not present near the spot . SHO was directed to reinvestigate the matter. SHO filed status report on 27.04.2009, on 25.05.2009 and on 20.07.2009 , IO stated that complainant was not joining the investigation and did not produce any other witnesses and no further evidence came on record against other accused who were placed in column no. 2. On 03.02.2010, protest petition was withdrawn by the complainant . Case was committed by the Learned Metropolitan Magistrate to the Court of Sessions and Charge u/s 302 IPC was framed against the accused on 26.08.2009. Accused pleaded not guilty and claimed trial.
2. Point which emerged for determination in this case is whether on the intervening night of 14.08.2008 and 15.08.2008, accused committed murder of his wife Smt. Munesh ?
3. In order to establish the accusation against the accused prosecution examined eighteen witnesses which are as follows: Medical Evidence 3.1 Dr. Sudipta Ranjan Singh (PW12) senior resident, Department of Forensic Medicine, AIIMS appeared in the witness box and identified signatures of Doctor Sunay M. who conducted the postmortem on the dead body on State vs Kunwar Singh SC no. 76/2010 3/22 Unique ID No. 02406R0310792010 15.08.2008. Doctor Sunay M. , who conducted the postmortem has not appeared in the witness box as he had left the institute. As per postmortem report (Ex. PW11/E), following antemorten injuries were found on the body of deceased:
(i) left cheek swollen and contured over an area of 4X4 cm. (ii) Contusion, dark bluish in colour of size 3X2 cm present over lateral aspect left thigh, 18 cm from thigh fold and 19 cm midknee (iii) Contusion , dark bluish in colour of size 3X3.4 cm pointed on outer
aspect of left leg, 9cm from knee and 25 cm from lateral malleolus
(iv) Multiple contusions in an area 6X5 cm on left arm , upper half arm on ant ewer and lateral aspect and contusions bluish in colour, size varying 1X2 to 3X4 cm. Area located 12 cm from elbow and 9cm from shoulder tip.
(v) Contusions of size 4x2 cm , bluish colour on right thigh anteuear aspect, 30 cm from right thigh fold and 4cm from right mid knee
(vi) Contusions , bluish in colour , 2X1 cm over lateral aspect of right thigh , 14 cm from lateral malleolus and 20 cm right tibial tuberasity.
(vii) Abrasion 1.2X1cm on dorsal aspect of left foot, medial size 2cm from base of left geest toe.
(viii) Contusions 4X2 cm horizontally placed, over left leg 4cm from left medial malleolus
(ix) Contusion 2X1 cm present in innner aspect of left side of lower lip.
(x) A blue coloured plastic rope, 1cm diameter, 4 layers present around the neck, loose knot present on right lateral aspect.
As per postmortem report, ligature material was cut and knots were screwed with the help of thread, sealed and handed over to IO. Ligature mark was 2.7cm width on left side, getting narrow on right side 1.6cm. It was dark brownish in colour parameterized, running backwards and upwards and right side, 6.5 cm from mandimus and 10 cm from supra sternal notch and 1.5 cm and 8.5 cm from mastoid tip. On dissection of neck, no sub facial hemorrhage was found. Muscles cells of neck were intact.
3.2 Dr. Sudhir Gupta (PW15) Additional Professor, AIIMS Hospital gave subsequent opinion after seeing the viscera report (Ex. PW 13/E). Viscera report was negative for any 'common poison'. On the basis of the injury no. 1 to 9 present on the body of the deceased, he opined that the mode of death as 'homicidal' in nature could not be ruled out. In cross examination, PW15 sated that straight ligature mark on all over the neck commonly called 'O' shape was not present in this case as per postmortem report. PW15 testified that according to postmortem State vs Kunwar Singh SC no. 76/2010 4/22 Unique ID No. 02406R0310792010 report, the cause of death given was 'asphyxia due to hanging'. PW15 admitted that there was a probability of suicide in this case and a person could commit suicide, if it was found that his hands were tied on the back side. After seeing the photographs, Doctor Sudhir Gupta (PW15) deposed that there was possibility of suicide in this case because it was a case of partial hanging which meant that partial body weight was working as force of constriction on neck by ligature and the partial hanging was more suggestive of "suicide".
Public witnesses 3.3 Subhash (PW1) complainant, on whose statement dated 3.9.2008, FIR in this case was lodged. PW1 stated that prior to the date of incident, he did not lodge any complaint to the police regarding the fact the accused had relation with some other woman. Explanation given by him for not reaching at her matrimonial home of his sister on 14.8.08 was that he did not find any vehicle/mode of transport. According to PW1, on 15.8.2008, he reached at the house of Munesh (deceased) at about 6/6:30a.m. He stated that the distance between his house and the matrimonial house of Munesh was about 4050 km and on 12.8.08, Saroj , the lady, with whom accused had illicit relations was present there. Saroj met him when he had come to the matrimonial home of Munesh on 12.08.2008. Before that, she met him at the matrimonial home of Munesh three years ago. PW1 deposed that the cause of quarrel between Munesh and Kunwar Singh was his illicit relations with Saroj and there was no other dispute between them. On 14.8.08 , he had a telephonic talk with Munesh, who told him that Saroj was still there. PW1 deposed that Kunwar Singh had two children i.e. One girl aged about 1314 years and one boy aged about 89 years , out of his relationship with Saroj. PW1 admitted that he did not make any complaint to the police regarding the relationship between Kunwar Singh with Saroj and about the fact that they had two children. PW1 deposed that when they reached at the spot on 15.8.2008 , children Shyam and Vishal were present there. Narender brother of Bhim and one more person namely, Udai , a relative of Bhim were there. PW1 deposed that when they reached at the spot, police had already arrived there . Children told State vs Kunwar Singh SC no. 76/2010 5/22 Unique ID No. 02406R0310792010 him that police had taken away accused from the house. He reached at the spot at 6/6:30am and remained there for about one and half hour. He accompanied the police with the dead body and thereafter, he never visited the spot, till date and since then, children Shyam and Vishal were residing with him. As per PW1, his younger brother Satpal visited matrimonial house of Munesh, once or twice and his father Phire Ram used to visit her several times. After the incident, none of his family member ever visited the matrimonial house of Munesh. 3.4 Sant Ram (PW10) relative of Subhash (PW1) reached the spot on 15.8.2008 along with Subhash. Sh. Sant Ram (PW10) stated that he along with Subhash and Zile singh , Duli Chand Pradhan and Virender reached at the house of Kunwar Singh at Pul Pehlad Pur. On reaching there, they found crowd and police. He along with police entered into the room where his cousin Munesh was found hanging. Her both hands were found tied towards backside with chunni. He removed his cousin Munesh from the hanging position. In cross examination, PW10 stated that Subhash had not made any telephone call to him and police had not recorded his statement at the house of his cousin sister's place. PW10 was confronted with statement (Ex. PW10/DA) recorded by ASI Satbir Singh. 3.5 Phire Ram (PW14 ) father of deceased deposed that since 5/7 years prior to the incident, accused was residing at Pul Prahladpur, Delhi and was running a parchun shop. After about one year, deceased started making complaints that accused was having illicit relation with one Saroj. Accused started harassing deceased and turned her out from the matrimonial home after beating her many times. PW14 deposed that his daughter Munesh was having two sons aged about 11 years and 9 years at the time of incident. During the period of 5/7 years, prior to the incident, his daughter used to reside with them at her parents home for 1 to 2 years and thereafter due to societal pressure, they used to send her again to the matrimonial home. According to PW14, this happened twice during this period. PW14 deposed that on 11th August, about 3 years ago, Kunwar Singh and Bhim Singh (brother in law of accused) came at their house and threatened them that they would not keep Munesh with them and told them State vs Kunwar Singh SC no. 76/2010 6/22 Unique ID No. 02406R0310792010 that they will keep Saroj with them. They were requested with folded hands not to do so but they paid no heed. PW14 stated that on 12 th August, he sent his son Subhash to bring Munesh back to her parents home. The behavior of Kunwar Singh, Bhim Singh, Bala (wife of Bhim Singh)and Saroj was not good. They misbehaved with Subhash. Munesh refused to accompany with Subhash and stated that she would remain with her matrimonial home with her children despite whatever happens to her. Munesh telephonically called them at STD Booth of Rohtas. PW14 deposed that phone call was heard by Subhash. Munesh told Subhash that she was apprehending danger to her life. Subhash told Munesh if he gets any conveyance, he would come on that day otherwise, he would reach there on the next morning. On 15th August, morning at about 4 am, somebody made telephonically call at the house of Lekhraj, the neighbour and informed that Munesh has died. Lekhraj called Subhash and informed him about the demise of Munesh. In cross examination, PW14 deposed that Police did not come to him to make inquiries about this case till date. PW14 was confronted with his statement u/s 161 Cr.P.C. (Mark PW14/DA) where, this fact that deceased used to reside for 12 years at her parents home was not mentioned. No complaint was lodged by him on 11.8.2008. he sated that there was no facility for lodging such report in their village. PW14 stated that report was not lodged due to the reason that they were planning to go to Munesh house next day. No complaint was lodged by them with regard to misbehavior of the accused, Bhim Singh and others with his son Subhash on 12.8.2008. PW14 admitted that no report was lodged by them on 14.8.2008, when Munesh told them on telephone that she was apprehending danger to her life. PW14 deposed that he met Roop Singh, father of accused Kunwar Singh, after about 34 days of the death of his daughter. Initially, PW14 could not tell whether the thumb impression at place mark PW 14/DB and 14/DC and were his thumb impression or not but during further cross examination, PW14 admitted that Roop Singh, father of accused had executed two Sale deeds in favour of his children, Vishal and Shyam Singh with respect to two plots at village Sirsa, Khanpur through him as guardian. Subhash and the persons, who State vs Kunwar Singh SC no. 76/2010 7/22 Unique ID No. 02406R0310792010 accompanied him to Sirsa i.e matrimonial house of my daughter, returned in the evening on 15.8.2008 after cremating the dead body.
3.6 Shyam (PW17) son of accused and Munesh (deceased) and deposed that on the intervening night of 14/15th August, at about 07:30 pm, his Fufa Bhim and Bua Bala and one Saroj Bala, who was having friendship with his father came to their house at Pulprahalad Pur. They all including his father had beaten his mother with hammer (hathodi) and Danda on her head and other parts of her body. His mother had fallen on the floor in the house. PW17 deposed that his bua Bala and Saroj caught hold of the legs of his mother and his fuffa Bhim had tied the hands of his mother and his father strangulated his mother. He along with his brother Vishal were confined in a room by his bua Bala and Saroj . His Mama Subhash arrived at their house and then, he opened the door and they came out. On asking, when and from whom he came to know that his mother had died, PW16 replied that his mama Subhash had told him about this fact at night time. Police met them in the morning. Then, he along with his brother Vishal were inside the room. His mama Subhash opened the door and they were awake at that time and were not sleeping. His mama took them with him to Village Zaan Siwana, in the day time.
3.7 Vishal (PW18) younger son of accused and Munesh (deceased) deposed on same lines that in the intervening night of 14/15th August, he saw his father, fuffa Bhim Singh, bua Bala, Saroj had come to his house at about 07:00/07:30 pm. All the four persons alongwith his father had beaten his mother with Danda & hammer on head and other part of the body. His mother had fallen on ground. Bala and Saroj caught hold the legs of his mother. Bhim Singh tied the hands of his mother and his father Kunwar Singh strangulated his mother. PW18 stated that in the morning, they were taken out from the room by his Mama Subhash. Police reached at their house and their statements were recorded. He narrated the entire incident to the police. In Cross examination, however he stated that he was sleeping when his Mama Subhash came to their house in the morning and he was awakened by his Mama Subhash. PW18 deposed that he and his State vs Kunwar Singh SC no. 76/2010 8/22 Unique ID No. 02406R0310792010 brother Shayam were in the room. His Mama Subhash opened the door from outside. His brother Shayam was also present inside the room when door was opened by his Mama. His mama Shubhash had come in the morning. PW18 deposed that he knew about the death of his mother before his Mama Subhash came. He did not know if police made any inquiry from his brother Shayam. He could not tell at what time he had gone to school on 14th August or at what time he came back. He could not tell if he used to go to the school in the morning and return in the afternoon or whether he used to go in the afternoon and returned in the evening. PW18 deposed that they were closed in the room at about 11/11:30 pm. There are built up houses adjoining their house in which people reside in the neighbourhood. According to PW18, his mother, Shayam as well as he had not raised any alarm . PW18 deposed that there were 1112 tenants, who were residing in the two rooms in the said house. When police came, tenants were not there. Tenants used to go from the house at about 06;00 am and used to return at 12/01:00 am (midnight). He never visited Pulprahlad Pur after 14.08.2008. He neither met his grand father and grand mother nor had a talk with his father (the accused) after 14.08.2008. PW18 deposed that cremation of his mother had taken place at out parental village i.e Sirsa, Khanpur, Gautam Budh Nagar, UP. He was not present at the time of cremation ceremony of his mother. There were six rooms in their house at Pulprahlad Pur. PW18 deposed that they were present in the first room near the main gate. On that day, his grand mother and grand father were not present at the house. Shop was situated in the first floor towards the street. Sometime, he used to sit at that shop, sometime his mother used to sit. Shayam also used to sit at that shop and his father used to sit at that shop. He deposed that On 14th August, shop was closed in the afternoon. Saroj used to visit their house off and on and Bua, fuffa and Saroj always used to come together. Sometime there used to be quarrel between his mother and father, on one reason or the other. He again stated that he did not know what was the cause of quarrel.
State vs Kunwar Singh SC no. 76/2010 9/22Unique ID No. 02406R0310792010 Police and other witnesses 3.8 Israr Babu (PW16) Nodal Officer placed on record mobile call details of Bhim Singh and Saroj and documents of mobile number 9811946348 pertaining to Sarojini Dungding from the period 01.08.2008 to 09.09.2008 running into three pages (Ex. PW16/A). He also produced original application form of Sarojini Dungding and mobile number 9899650905 pertaining to Bhim Singh from the period 01.08.2008 to 09.09.2008.
3.9 HC Dayanand (PW2) placed on record endorsement (Ex. PW2/A), DD nO.35A (Ex. PW2/B), DD no. 37 A (Ex. PW2/C) and FIR (Ex. PW2/D). 3.10 Ct. Anand (PW3) took seven photographs (Ex. PW3/1 to 3/7) of deceased (Munesh).
3.11 SI Mahesh Kumar (PW4) prepared scaled site plan (Ex. PW4/A). 3.12 HC Jagan Nath (PW5) MHC(M) placed on record copy of register no. 19 (Ex. PW5/A).
3.13 Ct. Anil Kumar (PW6) took sealed parcel of exhibits from malkhana for deposit thereof to FSL Rohini.
3.14 Ct. Vijay Kumar (PW7) recorded DD Entry regarding information about hanging of a lady. He placed on record copy of DD entry no. 35 (Ex. PW7/A).
3.15 Ct. Bharat Lal (PW8) special messenger received a copy of FIR and delivered it to the concerned Magistrate.
3.16 HC Kuldeep (PW9) reached at the spot on 15.8.2008 along with ASI Satbir. He is a witness to the seizure memo (Ex. PW9/A) of clothes of deceased, chunni and plastic rope, seizure memo (Ex. PW9/B) of blood in gauze and one sealed parcel of glass box (jar) containing vaginal swab of deceased, seizure memo (Ex. PW9/C) of viscera box and receipt (Ex. PW9/D) of handing over of dead body of deceased to the brother of Subhash.
3.17 ASI Satbir (PW11) reached at the spot first of all, after receiving information on 15.8.2008. He recorded the statement of Subhash (PW1) and of State vs Kunwar Singh SC no. 76/2010 10/22 Unique ID No. 02406R0310792010 Sant Ram (PW10) on 15.8.2008 and placed on record statement of Subhash (Ex. PW11/A) and of Sant Ram (Ex. PW11/B) in which they expressed no suspicion on the accused. PW1 recorded statement of Subhash and Santram as regard identification of dead body (Ex. PW11/C and 10/A). He placed on record receipt of delivery of jewelery of the deceased (Ex. PW11/D), postmortem report (Ex. PW11/E) and subsequent opinion (Ex. PW1/f) given by the Doctor regarding cause of death of the deceased. In cross examination, ASI Satbir Singh (PW11) stated that he received DD No. 35 at about 05:10 am and reached at the spot at about 05:15 am/05:20 am. On reaching there, accused Kunwar Singh, his two sons, his mother and other public persons were present. From 15.08.2008 to 02.09.2008, he went to house of accused twothree times. PW11 deposed that SHO had interrogated two sons of accused Kunwar Singh on 15.08.2008 in his presence. Neighbourers and public persons refused to join the investigation at the spot. On 15.08.2008, they remained at the spot for about four to five hours. He did not meet Subhash (brother of deceased) after 15.08.2008. PW11 deposed that the size of the room was about 9 x 10 feet. He recorded the statement of Subhash (brother of deceased) two times . PW11 admitted that after collecting the postmortem report on 28.08.2008, he did not arrest accused as no evidence was found against him nor any FIR had been registered.
3.18 Inspector Satpal Singh (PW13) is the IO of this case. He deposed that on 15.08.2008, he received an information from ASI Satbir Singh about a call regarding hanging of one women at GA111B, Pul Prahladpur. He reached at the spot. ASI Satbir Singh, HC Ram Kumar and PCR Staff was already present at the spot. According to IO, Smt. Munesh w/o Kunwar Singh, aged about 35 years was found hanged in the room with the help of a plastic rope and was tied with the iron guarder of the roof (Tin). He deposed that on inspection of deceased's body, her clothes were found intact, but her both hands were tied with 'Chunni' on her backside. Family members of deceased i.e. her son Vishal and Shayam and her fatherinlaw, motherinlaw as well as accused (her husband) and threefour tenants were present there. PW13 deposed that Subhash, the brother of deceased State vs Kunwar Singh SC no. 76/2010 11/22 Unique ID No. 02406R0310792010 and other villagers reached at the spot and statements of Subhash and Sant Ram was recorded by ASI Satbir Singh who stated that they had no suspicion on anyone in causing the death of Munesh. According to IO, when he reached there, children Vishal and Shayam were sleeping in the other room. Since there was no suspicion on anybody, inquest proceeding u/s 174 Cr.P.C. were conducted by ASI Satbir Singh who got conducted postmortem of the dead body. On obtaining postmortem report and subsequent complaint of Subhash, he recorded statement of Subhash, the brother of the deceased on 03.9.2008 (Ex.PW1/B), on which he made an endorsement (Ex.PW13/A) and FIR (Ex.PW2/D) was recorded on 03.09.2008. IO collected FSL reports pertaining to viscera and blood, (Ex.PW13/D and Ex.PW13/E). IO categorically deposed that no evidence was found regarding presence of Bhim Singh, Smt. Bala and Smt. Sarojini at the spot. An application was filed by complainant before the Court of Ld. MM and thereafter, IO recorded statement of child Shayam aged about 11 years of age and prepared the supplementary charge sheet. In cross examination, IO deposed that Subhash and Sant Ram reached at the spot after about one hour of his reaching at the spot. PW13 deposed that accused Kunwar Singh was present at the spot as long as he remained at the spot and it was he (Kunwar Singh) who called the PCR. IO deposed that children (Vishal and Shayam) were sleeping in the other room who woke up in his presence, when they went inside their room. IO stated that Subhash had not accompanied them, when they went inside the room, where Vishal and Shayam were sleeping. Children's statement was recorded by ASI Satbir. IO deposited that he had not interrogated accused Kunwar Singh during the period 15.08.2008 to 02.09.2008. IO deposed that he had not seen any corresponding marks of tying chunni on the hands and bangles on the hand were intact. The clothes of the deceased were intact and on seeing deceased, it did not appear to him as if the deceased had struggled. He did not verify documents i.e. sale deeds mark (Ex. PW14/DB and Ex. PW14/DC) executed by Roop Singh, father of the accused in favour of children through Phire Ram, father of complainant, as guardian.
State vs Kunwar Singh SC no. 76/2010 12/22Unique ID No. 02406R0310792010
4. On conclusion of prosecution evidence, statement of accused u/s 313 Cr. P. C was recorded. He pleaded innocence and false implication. Accused stated that on 14.08.2008 , he along with his wife Munesh and two sons Shyam and Vishal slept in the same room i.e. first room on the left side from the main entrance of the house at 10:30pm. His mother and his father were sleeping in another room which was in front of the room where his wife Munesh was found hanging. In the morning at about 03:00am on 15.08.2008 , his mother woke him up and told him that she saw his wife Munesh found hanging in the room where articles of the shop were kept. His tenants were also present there. Accused stated that his both sons, Shyam and Vishal were sleeping . Then, he called the police at around 04:30/05:00pm and police came at around 05:15/05:30pm on 15.08.2008. The police interrogated him and other persons present there. His both sons woke up on in the presence of the police officials. At around 07:30/08:00 am Subhash came there and in his presence, Subhash and Santram told the police that they did not have suspicion on anybody in his presence. After that, Subhash took both his sons and went away from the house.
5. I have heard submissions advanced by Sh. Wasi Ur Rehman ld. Addl. PP for the State, Sh. Jagat Ram Ld. Counsel for the complainant and Sh. Ashish Kumar Dass Ld. Counsel for the accused and have perused the record carefully.
6. Ld. Addl. PP submits that it was for the accused to explain how the hands of deceased were tied from the backside as admittedly, according to the accused, he was present in the same house. In support of his submission, he relied upon 'Sahadevan vs State AIR 2003 SC 215', he submits that it was a case u/s 302 IPC wherein it was observed that accused had to explain as to under what circumstances deceased parted company of deceased. Learned Addl. PP submits that in case of 'asphyxia due to hanging', if the hands of a person are tied on the back side as in the present case, there is a strong suspicion of homicide and not suicide. Ld. Additional PP submits that FIR was not registered by Investigating Officer and (Ex. PW1/A) letter dated 29.08.2008 was written by Sh. S. K. Negi , OSD, Minister of State for Home Affairs to DCP (South) after efforts were made by State vs Kunwar Singh SC no. 76/2010 13/22 Unique ID No. 02406R0310792010 complainant for registration of FIR. Learned Counsel for complainant submits that IO had not investigated the case properly and had not recorded statement of children who were examined by the Court after an application u/s 311 Cr. P. C moved by the complainant was allowed and the children have deposed against the accused. He submits that deceased could not have tied her hands herself as it is a very suspicious circumstance which should be considered against accused.
7. On the other hand, Learned. Counsel for accused Kunwar Singh submitted that Subhash, the complainant and Sant Ram in their statement before the police dated 15.8.2008 stated that they had no suspicion on anybody. First of all, PW11 alongwith PW9 reached at the spot. PW11 deposed that he recorded the statement of Subhash (brother of deceased) and Santram who did not suspect anyone at that time and leveled no allegations against the accused. He submitted that as per Subhash, on 12.8.2008, he went to Pul Prahlad Pur and saw four persons namely Saroj, Bala, Kunwar Singh & Bhim Singh, whereas the call details record of Bhim Singh and Saroj placed on record by the IO clearly indicates that they were not present at Pul Prahlad Pur. Ld. Defence counsel submitted that no complaint was ever made by Subhash (PW1)and any of his family members regarding allegations that accused Kunwar Singh was having any affair with a lady Saroj or he was threatening and harassing her. Ld. Counsel for the accused submitted that Subhash (PW1) had tutored PW17 & PW18 (sons of accused Kunwar Singh and deceased), who were admittedly residing with him since the day of incident. He argued that after 15.8.2008, Subhash (PW1)and Phire Ram (PW14) started blackmailing accused and his father Roop Singh to transfer all the property in the name of Vishal & Shyam (PW18 & PW17). They succeeded in transferring two plots of land . Copy of those sale deeds are (PW14/DB & PW14/DC) and admittedly, Phire Ram (PW14) became the guardian of that property. Phire Ram (PW14) when confronted with sale deeds, at one point had shown ignorance about his thumb impression (Ex.PW14/DB). Thereafter, he denied his signature thereon. Later on, only during crossexamination, he admitted that Roop Singh, father of the accused had executed sale deeds in favour State vs Kunwar Singh SC no. 76/2010 14/22 Unique ID No. 02406R0310792010 of Vishal and Shayam with respect to two plots at Village Sirsa, Khampur through him as guardian executed by Roop Singh, father of accused Kunwar Singh on 20.8.2008. Admittedly, FIR was registered on 03.09.2009 whereas the alleged incident took placed on 15.08.2008. He submits that they wanted more property to be transferred, but it was objected by accused Kunwar Singh and his father Roop Singh. Phire Ram, (PW14) deposed that initially police did not lodge their report in connivance with accused and later on the report was lodged after making efforts. The letter, which was allegedly sent by him to the State Minister of Home Affairs does not finds mention in his testimony and is not placed on record. Therefore, as an after thought, FIR was lodged on 3.9.2008, after 18 days of the alleged incident by using his connections as is evident from the testimony of Subhash (PW1). Ld. Counsel submits that through letter of Home Minister to DCP (South) complainant's party was also having another property dispute with brother of accused Kunwar Singh. He submits that postmortem report (Ex.PW11/E) of the deceased was prepared by Doctor Sunay. M, who did not appear in the witness box. As regards the fact that the dead body was found with tied hands on the back side, Ld. Counsel for accused submits that he had put suggestions to both the Ios that both the hands were not tied from back side when they reached at the spot. He submits that PW15 Dr. Sudhir Gupta categorically stated that no straight ligature mark on all over the neck was present as per postmortem report. Photograph (Ex. PW3/2) was shown to doctor, who clearly stated that it was more suggestive of suicide. He was further asked specific question whether there was a possibility that a person could commit suicide, if it is found that her hands are tied from the backside. This witness categorically deposed that it was possible. According to the IO, he had not seen any corresponding marks and the clothes of the deceased was intact. Record shows that at 05:10 am on 15.08.2008 information was given to the police on mobile phone no. 9868479662 by the accused Kunwar Singh. Ld. Counsel submits that no suggestion has been given to the IO/ASI Satbir Singh that the signatures of Subhash and Santram were obtained by ASI Satbir Singh on blank papers. He State vs Kunwar Singh SC no. 76/2010 15/22 Unique ID No. 02406R0310792010 submits that Doctor Sudipta Ranjan Singh (PW12) identified the signatures and hand writing of Doctor Sunay. M, prepared postmortem report as well as gave subsequent opinion (Ex.PW11/F) on 28.08.2008. He submits that testimony of children shows that they were tutored witnesses and were residing with complainant since the day of incident. As per IO, they were sleeping in other room. He referred 'Arbind Singh vs State of Bihar AIR 1994 Supreme Court 1068' in which case husband was convicted for causing death of his wife and conviction was based on the statement of a child who was five years old. It was held that there were trace of tutoring, therefore, accused was acquitted by Hon'ble Supreme Court granting him benefit of doubt. Ld. Counsel submits that FIR in a murder case is valuable piece of evidence for the purpose of appreciating the evidence adduced at the Trial and the object of insisting upon prompt lodging of the FIR is to obtain earliest information regarding the circumstances in which the crime was committed and as regards the names and role played by actual culprits. Delay in lodging the FIR results in embellishment, which is a creature of an after thought.
8. First point to be considered is whether it is a case of 'homicide' or 'suicide'. From the testimony of Doctor Sudhir Gupta (PW15), it cannot be inferred that it was a case of 'homicide'. In the subsequent opinion, it was noted that the opinion could be given on receipt of viscera analysis. As per forensic report (Ex.PW13/E) prepared by Doctor Adesh Kumar, Senior Scientific Assistant (Chemistry) chemical, Microscope & TLC examination, metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, Tranquilizers and pesticides could not be detected in exhibits '1A', '1B', '1C' & '1D'. There is nothing in the analysis of the viscera to show that the deceased Munesh was administered any poisonous substance. The postmortem on the body of the deceased was conducted at 11:45 am on 15.08.2008 and time since death has been opined as 'half a day'. Cause of death were opined to be 'asphyxia due to hanging' and other injuries no. 1 to 9, which are contusions were stated to be caused by blunt external force. The intriguing features of the case was that hands of deceased were found from the backside and apparently it is difficult for a person to tie her State vs Kunwar Singh SC no. 76/2010 16/22 Unique ID No. 02406R0310792010 hands from backside, but this fact is to be seen in the light of other surrounding circumstances. Dr. Sudhir Gupta (PW15), who is a Medical and Forensic Expert's opinion deposed that it was possible that a person could commit suicide if his hands are tied from backside even after seeing photographs (Ex. PW3/1 to PW3/7). If other person or accused would forcibly tie hands, there is bound to resistance or/struggle; noise or alarm . It is not the case of prosecution that she was administered any drug or stupefying substance. Doctor Sudhir Gupta (PW15) deposed in the examinationinchief that on the basis of injuries no. 1 to 9 present on the body of the deceased, the mode of death as 'homicidal in nature' could not be ruled out. In cross examination, PW15 admitted that there was probability of suicide in this case, even after seeing the photograph (Ex. PW3/1 to Ex. PW 3/7) showing hands of the deceased tied from the backside. On asking about the possibility of committing suicide, if the hands were tied on the backside , Doctor maintained that it was possible to do so. Doctor (PW15) clarified that it was a case of partial hanging and the ligature mark of 'O shape' was not present and partial hanging was 'more suggestive of suicide'. Medical and forensic evidence has not conclusively established that it was a case of 'homicide'. Thus, prosecution has failed to establish that it is a case of 'homicide'. It rather appears to be case of 'suicide'.
9. Now, I would advert to the complaint/FIR dated 03.09.2008. As per FIR, case of the prosecution is that the deceased sister was complaining since fourfive years that her husband/Kunwar Singh, accused had kept another lady Saroj due to which he used to harras and beat her and at times, she used to stay with her parents. She was made to understand by the people of the society and again sent to her matrimonial house on 11.08.2008, Kunwar Singh and his brotherinlaw Bhim Singh had come to their village and threatened that Munesh (deceased) would not be kept at matrimonial house and that they would now keep Saroj. On 12.08.2008, Subhash went to the matrimonial house of Munesh (deceased), where allegedly Bhim Singh, Kunwar Singh, the accused, his sister Bala and Saroj had insulted him and told him to take back his sister (Munesh). When he asked State vs Kunwar Singh SC no. 76/2010 17/22 Unique ID No. 02406R0310792010 Munesh (deceased) to accompany him, she told him that she would remain here whether they kill or leave her. It is further the case of prosecution that on 14.08.2008, Munesh (deceased) made a telephonic call and had a talk with complainant Subhash, informing him that Bhim Singh, Kunwar Singh, the accused, his sister Bala and Saroj had beaten her but Subhash told her that he would come in the next morning and on 15.08.2008, Lekh Raj s/o Dulli Chand informed him that Munesh had died. Subhash, who appeared in the witness box as PW1 deposed in the aforesaid terms. As regards his visit at the matrimonial home of Munesh on 12.08.2008, PW1 stated that Saroj, the lady with whom the accused had illicit relation was also present there and that the cause of quarrel of Munesh and Kunwar Singh was illicit relation with Saroj and there was no other dispute between them. He stated that on 14.08.2008, when he had a telephonic talk with Munesh, she told him that Saroj was still there. Kunwar Singh had two children, one girl 1314 years of age and one boy 89 years of age out of his relations with Saroj. In the cross examination, Subhash (PW1) admitted that prior to the date of incident he had not lodged any complaint to the Police regarding that fact that the accused had relation with some other women. On asking, as to why he did not reach at her matrimonial home on 14.08.2008 on which day he received the information about beating being given to his sister, PW1 deposed that he did not find any vehicle/mode of transport. This reasoning is not convincing at all. PW1 deposed that he knew Rohtash, who was having STD Booth since child hood. No statement of Rohtash has been recorded by the IO. He has not been examined to show that a phone call was made by the deceased at his STD Booth or that he had called Subhash. In this connection. no call detail record is placed on record.
10. Examination of the testimony of child witnesses (PW17 & PW18) indicates that they are tutored witnesses. Admittedly, both the children were living along with their maternal uncle (Mama) PW1 Subhash since the day of incident i.e. 15.8.2008. They were not even cited as prosecution witnesses. An application U/S 311 Cr.P.C. moved by complainant was allowed on 08.11.2011 State vs Kunwar Singh SC no. 76/2010 18/22 Unique ID No. 02406R0310792010 and thereafter, these child witnesses were examined as witnesses. Admittedly, on the morning of 15.05.2008, PW17 and PW18 were inside the room and when Subhash, the complainant came, then they came to know that their mother had died. Both the children stated that their grand parents were not present, whereas IO stated that grand parents as well as tenants were present in the house. Both witness IO/Satpal Singh (PW13) and Satbir (PW11) categorically deposed that both the children (PW17 & PW18) were sleeping in other room and woke up in their presence and Subhash came to the spot after about one hour. IO/Satpal Singh deposed that he made inquiries from the children (PW17 & PW18) who told him that they did not know anything about the incident as they were sleeping in other room. There are contradictions between statement of child witnesses and postmortem report. Both the child witnesses (PW17 & PW18) have stated that their mother was hit on head and other parts of the body by hammer and danda by Bala, Saroj, Bhim Singh and Kunwar Singh. If a person is hit on head by hammer and danda by four persons than there will be severe head injuries. As per the postmortem report, no injury on the head was found. Hammer and danda allegedly used were not recovered and no other recovery was affected from the accused. Shyam (PW17) deposed that his maternal uncle Subhash told him about the death of his mother at night time on 14.8.2008. Whereas admittedly, Subhash (PW1) came in the morning on 15.8.2008. PW17 & PW18 in their examination in chief stated that their mother was beaten at around 7/7.30 P.M. on 14.8.2008 but in cross examination stated that they could not tell the time when their mother was beaten. PW17 deposed that he could not tell the time when his mother had died. He could not tell even appropriate time whether it was at 7 P.M., 8 P.M., 9 P.M., 10 P.M., 11 P.M. or 12 P.M. Vishal (PW18) deposed that they were confined in a room at around 11/11.30 P.M. and he saw Bala, Saroj and Bhim Singh going out of their house at around 2/3 A.M. on 15.8.2008. He could not have seen these persons when he was already confined in a room. PW18, at one time he stated that, he went to the school on 14.8.2008 and on another occasion he stated that he did not go to school on 14.8.2008. Mobile call details State vs Kunwar Singh SC no. 76/2010 19/22 Unique ID No. 02406R0310792010 of Bhim Singh and Saroj w.e.f 1.8.2008 to 9.9.2008 (Ex. PW16/A and PW16/E) indicates that Bhim Singh and Saroj were not found in and around Pul Prahlad Pur Area, whereas both the children deposed that on 14.8.2008 Bhim Singh, Bala & Saroj came to their house and gave beatings to her mother. In Arbind Singh vs State of Bihar AIR 1994 Supreme Court 1068, Hon'ble Supreme Court observed that a child witness is prone to tutoring and hence, the Court should look for corroboration particularly when the evidence betray traces of tutoring. In Sahadevan vs State AIR 2003 SC 215 referred by Ld. Addl. PP, factum of deceased being taken to police station in custody was not disputed, evidence showed tampering in the log books of police Jeep. It was in these circumstances, it was held that accused failed to explain to the Court in what circumstances they parted with the company of the deceased. It is not the case of prosecution that accused and deceased were present in the same room, where deceased committed suicide.
11. ASI Satbir (PW11) recorded the statement of Subhash (PW1) and Santram (PW10) on 15.8.2008. Both of them stated that they had no suspicion on anybody regarding the incident. Thus, Subhash (PW1) the complainant and Sant Ram (PW10) suspected no foul play, besides the fact that hands of deceased were seen tied. Admittedly, no complaint was ever lodged by the complainant, deceased wife or her father against accused. It is also not convincing that despite hearing , what was told to complainant by her deceased sister, he would not go to the matrimonial home or could not go there on the pretext of not having any provision of transport. Admittedly, FIR was registered after 18 days of incident and admittedly, during the intervening period, property was transferred and two sale deeds were executed by father of accused on 20.08.2008 in the name of children , through Phire Ram (PW14) as guardian. During investigation, statements of several persons was recorded by IO on 24.04.2009, who are not examined or even listed as prosecution witnesses. Three public persons Narender Kumar, Sonu, Ravinder Bhati, Satyavir, Dharampal Singh and Babu Ram whose statement is placed on record by the prosecution supports the defence version that complainant and his father were asking for transfer of property in the name of the State vs Kunwar Singh SC no. 76/2010 20/22 Unique ID No. 02406R0310792010 father of deceased and that they demanded Rs.20 lacs , which was refused by Bhim Singh and thereafter only accused Bhim Singh and Smt. Bala were falsely implicated. Moreover, perusal of the case diary shows that three tenants who were present there at the spot namely, Sh. Ajit Ansari s/o Sh. Janmay Alam Ansari Basaruddin s/o Sh. Kazi Hussain and Sh. Imraju s/o Sh. Mulajim Miyan who, on asking informed IO that no noise or any alarm was raised by anyone and they have not seen any stranger on 14.08.2008. IO (PW13) categorically testified that he did not see any corresponding marks of tying chunni on the hands and bangles on the hand were intact. The clothes of deceased were intact. IO deposed that it did not appear to him as if the deceased had struggled. He inquired from the grand parents of both the child, the tenants and other persons present at the spot and nobody suspected anything in the incident. Thus, there is nothing on record to show any signs of resistance or struggle at the spot to indicate that accused gave any beatings to the deceased. No nexus of injury no. 1 to 9 i.e. several contusions and abrasions on the person of the deceased with the accused has been established. There is nothing on record to show that accused tied hands of deceased. It has already been noticed above that children , who appeared in the witness box appear to be tutored witness and thus, their testimony is not worthy of credence. It has not been established that accused and deceased were seen together before the incident. In a case reported as 'State through CBI vs Mahender Singh AIR 2011 SC 1017' accused was alleged to have committed murder of his wife. There was even last seen circumstance against accused husband, who was admittedly with the deceased wife in the room throughout night. Hon'ble Supreme Court observed that last seen evidence would not necessarily mean that accused husband had killed his wife. In the present case prosecution has not even proved that the accused husband was with the deceased wife in the same room on the night of incident or soon before the incident. Prosecution has failed to establish that accused had any intention or motive of committing murder of his wife. Suspicion no matter , howsoever strong cannot take the place of proof . The burden remain on prosecution to prove the guilt of accused beyond doubt. Court State vs Kunwar Singh SC no. 76/2010 21/22 Unique ID No. 02406R0310792010 has to ensure that conclusions reached by it are not influenced by emotions but have to be based on the evidence produced in the Court. On overall appreciation of the evidence on record and all circumstances referred above, this Court finds that prosecution has failed to establish beyond reasonable doubt that accused committed murder of his wife. In the result, accused is hereby acquitted from the charges. Accused , who is in judicial custody, be released forthwith, if not wanted in any other case. The requisite bail bond u/s 437A Cr.P.C. to be furnished by the accused shall remain valid for a period of six months. File be consigned to Record Room.
announced in the (VINAY KUMAR KHANNA)
open court on Additional Sessions Judge04
28th February 2012 (SouthEast) Saket/New Delhi
State vs Kunwar Singh SC no. 76/2010 22/22