Delhi District Court
Whether The Deceased Smt. Pavitra Kaur ... vs Emperor Air 1939 Pc 47 While Laying Down ... on 24 May, 2017
IN THE COURT OF SHRI KULDEEP NARAYAN : ADDITIONAL
SESSIONS JUDGE (PILOT COURT):WEST: TIS HAZARI COURTS:
DELHI.
SC No. 57737/16
FIR No. 339/11
U/s. 302/404/380/411/201 IPC
P.S Hari Nagar
In the matter of :
State
versus
Amarjeet Singh @ Raju @ Wadhwa
S/o late Mohan Singh
R/o H. No. 756/3 Mohalla Khalsa
behind Dharampura Bazar, Patiala, Punjab
Date of Institution : 31.10.2011
Date of reserving Judgment : 25.04.2017
Date of pronouncement : 24.05.2017
Appearances
For the State : Ms. Reeta Sharma, Additional Public
Prosecutor.
For the Accused : Ms. Chitra Mal, Advocate, the Amicus
Curiae.
JUDGMENT
Accused Amarjeet Singh @ Raju @ Wadhwa son of late Mohan Singh, aged 44 years was sent up for trial on the basis of report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) submitted Sessions Case No. 57737/16 Page 1/59 on 31.10.2011 upon conclusion of investigation into First Information Report (FIR) no.339/2011 of police station (PS) Hari Nagar for offences punishable under Sections 302/404/380/411/201 of the Indian Panel Code, 1860 (IPC).
2. As per the prosecution story, on 29.07.2011 on receipt of DD No. 28 ASI Surender alongwith constable Mahesh reached at House No. WZ- 74 A Ist Floor, Meenakshi Garden, Hari Nagar, Delhi where in the main lobby of first floor of the house, Smt. Pavitra Kaur W/o Shri Kanwaljeet Singh aged 63 years was found lying dead in a pool of blood. There were injury marks caused by sharp edged weapon on the back side, near the neck and on the hands of the deceased. Blood smeared foot prints were also found there. Rs.50,000/- and two gold bangles from the left hand of the deceased were reported to be missing. Statement of one Harpreet Singh who met on the spot was recorded who stated that at about 4 p.m his brother-in-law (sala) namely, Sunit Singh telephonically informed him that my mother-in-law (saas) had sustained injury on her head and asked him to reach at her house. When he reached to the house of his in-laws i.e. H. No. WZ-74 A Ist Floor Meenakshi Garden, Delhi he found one neighbour namely, Smt. Narender Kaur as well as other persons present in the above-said house and his mother-in-law (saas) namely, Smt. Pavitra Kaur W/o Shri Kanwaljeet Singh was lying in a pool of blood. One lady doctor was called, who declared Smt. Pavitra Kaur dead. He informed his brother-in-law (sala) Sunil Singh and called police at 100 number. His brother-in-law reached the house and after checking the house reported that cash amount of Rs.50,000/- and two gold bangles of his mother Smt. Pavitra Kaur (deceased) were missing from the house. SHO as well as the staff of crime team inspected the place of incident. FIR No. 339/11 under Section 397/302 IPC was got registered through HC Arun Kumar and the case was handed over to the Sessions Case No. 57737/16 Page 2/59 Investigating Officer (IO) for further investigation. Dead body of Smt. Pavitra Kaur (deceased) was sent to the mortuary of DDU hospital for postmortem. On 30.07.2011, postmortem on the dead body of the deceased was conducted in the DDU hospital in the presence of her relative and after conducting the postmortem, the dead body was handed over to the relatives of the deceased.
3. During investigation, on 01.08.2011 at the instance of one Smt. Narender Kaur W/o Shri Manjeet Singh R/o 74A, G.F, Meenakshi Garden as well as on the basis of call detail record of mobile phone, accused Amarjeet Singh @ Raju @ Wadhwa, who was the son of sister of deceased, was apprehended and interrogated. During interrogation, on 02.08.2011 accused Amarjeet Singh @ Raju @ Wadhwa got his discloser statement recorded. He was arrested in the present case. On pointing of accused Amarjeet Singh @ Raju @ Wadhwa, two gold bangles of deceased Smt. Pavitra Kaur, Rs.30,000/- out of robbed amount of Rs. 50,000/- and cosmetic articles worth Rs.20,000/- were recovered from the house of the accused. Accused also disclosed the fact of throwing the weapon of offence and his blood stained T-Shirt, which he was wearing at the time of incident, in Bhakhra Canal Kheri Gadiya Pul, Punjab. One brown colour pant and white colour vest (baniyan) was also recovered from the house of accused Amarjeet Singh @ Raju @ Wadhwa at Patiala, Punjab.
4. On 16.08.2011 statement under Section 164 Cr.P.C of accused Amarjeet Singh @ Raju @ Wadhwan was recorded before the Learned Metropolitan Magistrate. Mobile call detail record of accused was also obtained. After conclusion of investigation, the IO reached to the conclusion that the accused committed the offence punishable under Section 397/302/201 IPC and accordingly chargesheet was prepared and filed in the court.
Sessions Case No. 57737/16 Page 3/595. On the basis of police report, the learned Metropolitan Magistrate took cognizance of the offences and after complying with the provisions contained in Section 207 Cr.P.C, committed the case to the Court of Session vide order dated 11.11.2011.
6. On 23.12.2011, after hearing the learned Additional Public Prosecutor for the State and the Learned Amicus Curiae for the accused, charge was framed against the accused for commission of offences punishable under Section 302/404/380/411/201 IPC. The charge so framed was read over and explained to the accused to which he pleaded not guilty and claimed trial.
7. On 8.3.2016, a supplementary charge sheet was filed whereby FSL report no. FSL-2011/B-5098 Bio No. 1037/11 dated 28.11.2011 was filed by the IO. Vide order dated 8.3.2016, the Learned Metropolitan Magistrate sent the supplementary charge sheet to the Court of Session.
8. To bring home the afore-mentioned charges to the accused , the prosecution got examined Shri Harpreet Singh (PW-1), Shri Sunit Singh (PW-2), HC B.K Sharma (PW-3), HC Satya Prakash (PW-4), Shri Kanwaljeet Singh (PW-5), Shri Bineet Gujral (PW-5), HC Arun Kumar (PW-6), ASI Ajit Singh (PW-7), Ct. Suresh Chand (PW-8), Shri J.S Gujral (PW-9), Ct. Amit Kumar (PW-10), Shri Naresh Kumar (PW-12), HC Ram Chander (PW-13), HC Sewa Ram (PW-14), Ms. Vandana, Learned MM (PW-15), Inspector Harpal Singh (PW-16), Inspector Mahesh Kumar (PW-17), Shri Vishal Grover (PW-18), Dr. Komal Singh (PW-19), SI Surender (PW-20), ASI Karnail Singh (PW-21), ASI Malkeet Singh (PW-22), SI Raj Kumar (PW-23), Ms. Vandana Jain, Learned MM (PW-24), Ct. Mahesh (PW-25), Inspector M.L Meena (PW-
26), SI Devender Singh (PW-27), Inspector Rajesh Brar (PW-28).
Sessions Case No. 57737/16 Page 4/599. The prosecution also relied on following documents tendered into evidence:
1. Statement of Harpreet Singh (Ex.PW-1/A)
2. Seizure memo of Tala Kunda (Ex.PW-1/B)
3. Seizure memo of blood stain lifted from the spot (Ex.PW-1/C)
4. Seizure memo of blood stain lifted from the kitchen (Ex.PW-1/D)
5. Seizure memo of blood stain lifted from the knob of door of toilet (Ex.PW-1/E)
6. Seizure memo of pair of slipper (Ex.PW-1/F)
7. Case property i.e one pair of rubber plastic slipper (P-1 colly)
8. Case property i.e. locked lock, kunda with two screws (Ex. P-2 colly).
9. Case property i.e. blood stained clothes of deceased (Ex. P-3 colly)
10. Case property i.e two gold bangles(Ex.P-4 colly)
11. Case property i.e 60 currency notes of Rs.500/- (Ex.P-5 colly)
12. Receipt of dead body after postmortem (Ex.PW-2/A)
13. Original store room register copy of serial no. 3318 (Ex.PW-3/A (OSR))
14. Original store room register copy of serial no. 3321 (Ex.PW-3/B (OSR))
15. Original store room register copy of serial no. 3333 (Ex.PW-3/C (OSR)) Sessions Case No. 57737/16 Page 5/59
16. Original store room register copy of serial no. 3337 (Ex.PW-3/D (OSR))
17. Original RC register copy containing RC No. 139/21/11 (Ex.PW-3/E (OSR))
18. DD entry no. 28 A dated 29.07.2011 PS Hari Nagar (Ex.PW-4/A)
19. DD entry no. 30 A dated 29.07.2011 PS Hari Nagar (Ex.PW-4/B)
20. DD entry no. 31 A dated 29.07.2011 PS Hari Nagar (Ex.PW-4/C)
21. Photocopy of FIR register containing FIR No. 339/11 Ex.PW-4/D
22. Crime scene visit report (Ex.PW-7/A)
23. 18 photographs of the dead body and the place of occurrence (Ex.PW-10/PA)
24. Original crime scene report dated 23.08.2011 (Ex.PW-12/A)
25. Arrest memo of accused (Ex.PW-13/A)
26. Personal search memo of accused (Ex.PW-13/B)
27. Discloser statement of the accused (Ex.PW-13/C)
28. Seizure memo of currency notes amounting to Rs.30,000/- (Ex.PW-13/D)
29. Seizure memo of two gold bangles (Ex.PW-13/E)
30. Seizure memo of cosmetic article (Ex.PW-13/F)
31. Seizure memo of one brown pant and one sando baniyan (Ex.PW-13/G)
32. Pointing out memo of the Bhakra Nahar (main) Sessions Case No. 57737/16 Page 6/59 (Ex.PW-13/H)h
33. Pointing out memo of Bhakhra Nahar, Khedi Ghadia where the weapons of offence and clothes of accused were thrown by the accused (Ex.PW-13/I)
34. Case property i.e. cosmetic articles (Ex.P-6 (colly))
35. Scaled site plan (Ex.PW-17/A)
36. Attested copy of customer application form for mobile no.9779209597 registered in the name of accused (Ex.PW-18/A)
37. Attested copy of ID proof of Driving Licence of the accused for issuance of mobile no.9779209597 (Ex.PW-18/B)
38. Attested copy of CDR of mobile no.9779209597 w.e.f 01.07.2011 to 02.08.2011 (Ex.PW-18/C)
39. Attested copy of the certificate U/s 65 B of the Evidence Act (Ex.PW-18/D)
40. Postmortem report (Ex.PW-19/A)
41. Rukka (Ex.PW-20/A) 42 Application for providing the copy of statement of accused U/s 164 Cr.P.C (Ex.PW-24/A)
43. Confessional statement of the accused (Ex.PW-24/B)
44. Certificate of correctness (Ex.PW-24/C)
45. Site plan without scale (Ex.PW-26/A)
46. Seizure memo of clothes, finger clipping of B/L hands, blood gauge piece with four sample seal of DFMT DDU hospital (Ex.PW-26/B)
47. Case property i.e. cotton swab having blood stains Sessions Case No. 57737/16 Page 7/59 lifted from near the body (Ex.P-8)
48. Case property i.e. one cotton gauge having blood stains lifted from the kitchen (Ex.P-9)
49. Case property i.e. one cotton wool swab lifted from the knob of door of the toilet (Ex.P-10)
50. Case property i.e. clothes of deceased (Ex.P-11 (colly))
51. Case property i.e. finger clippings (Ex.P-12 (colly))
52. Case property i.e. one cotton gauge having blood stain (Ex.P-13)
53. Case property i.e one sando baniyan (vest) and one pant recovered at the instance of accused (Ex.P-
14 (colly)
54. Duplicate copy of finger print report dated 28.11.2011 (Ex.PW-26/DA)
55. Attested copy of FSL report of serological analysis ( Ex. X1)
56. Attested copy of FSL report of biological analysis for (Mark Ex. X2)
57. Supplementary charge-sheet containing FSL report (Ex.PW-28/A)
10. On 03.02.2017, statement of accused Amarjeet Singh @ Raju @ Wadhwa under Section 313 Cr.P.C was recorded wherein he denied the correctness of all the incriminating circumstances appearing in the evidence against him and stated that he was falsely implicated in the present case. He further stated that cash amount of Rs.30,000/- and two gold bangles were not recovered from his possession. He was assured by the police to make confession to secure his early release. The accused Sessions Case No. 57737/16 Page 8/59 desired to lead evidence in his defence. Accordingly, on 20.02.2017 Ms. Puneet Kaur, his daughter was examined as DW-1. Vide order date 21.02.2017, as per separate statement of Learned Amicus Curiae for the accused, the defence evidence was closed.
11. I heard the arguments advanced by Ms. Reeta Sharma, Learned Addl. PP for the State and Ms. Chitra Mal, Learned Amicus Curiae for the accused. I have also perused the entire material available on record.
12. During the course of arguments, Learned Additional PP for the State relied heavily on the confession of the accused recorded under Section 164 Cr.P.C by the Learned Metropolitan Magistrate on 16.8.2011. It was submitted that before recording confession, the Learned Metropolitan Magistrate had given sufficient cooling period to the accused to think over before making confession. She further argued that the confession of the accused was also corroborated with the circumstance of recovery of gold bangles and currency notes at the instance of the accused, which is admissible under Section 27 of the Indian Evidence Act, 1872 ( "the Evidence Act"). With regard to other incriminating circumstance, Learned Additional PP for the State argued that both PW-2 and PW-5 deposed about the accused gaining friendly entry in the house. Further, the accused also got recovered the clothes which were worn by him at the time of commission of offence upon which some blood stains were also found, which the accused had tried to wash out. However, as per FSL result, human blood was detected on the afore-said clothes of the accused and the presence of blood on the said clothes could not be explained by the accused. Learned Additional PP for the State further argued that all the material witnesses were examined by the prosecution, which point out towards the role of the accused in commission of offence. The crime scene was not tampered and no suggestion was given to the prosecution witnesses in this regard. Further, Sessions Case No. 57737/16 Page 9/59 as per the call details record (Ex.18/C) pertaining to the mobile phone of accused, the mobile phone of the accused was kept in off condition throughout. There are no material defects in the investigation conducted and as per the settled law, non-recovery of weapon of offence is not fatal to the prosecution case as a valid and plausible explanation was furnished by the prosecution witnesses for the same. No motive could be ascribed for false implication of the accused. The prosecution successfully established the complete chain of circumstances pointing towards the guilt of the accused whereas the accused could not establish plea of alibi to exonerate him as DW-1 is an interested witness being the daughter of the accused whose testimony cannot be relied upon. Since the prosecution succeeded in establishing its case beyond all reasonable doubt, the accused deserve conviction.
13. Per contra, Learned Amicus Curiae for the accused referred to the testimonies of PW-1, PW-2 and PW-5 to argue that none of them mentioned about the name of the accused. She further argued that on arrival of the police at the scene of crime, the main door of the house was found opened and some neighbourer were also present and, therefore, the possibility of tampering of the crime scene cannot be ruled out. Further, the recovery of weapon of offence could not be effected which raises doubt on the prosecution story. Learned Amicus Curiae further argued that there are number of defects in the investigation conducted for instance HC Ajay and Ct. Sandeep were not examined for the reason best known to the prosecution, the prosecution could not bring on record the details of private vehicle and its driver, who had gone to Patiala, Punjab to apprehend the accused. Similarly, the IO did not obtain the details of divers. She further argued that another material prosecution witness namely, Smt. Narender Kaur could not be examined who had firstly visited the scene of crime. Learned Amicus Curiae for the accused Sessions Case No. 57737/16 Page 10/59 further argued that the confession of the accused was not voluntary but was under pressure and promise by the IO for letting him go if he acts upon the instructions of the IO. She further argued that the presence of the accused at the scene of crime could not be inferred as there is no evidence available on record to connect the accused with commission of offence. Further, as per the deposition of prosecution witnesses, some finger prints were lifted from the spot but no report of matching the finger prints of the accused with the finger prints so lifted, could be filed on record. Further, the certificate under Section 65-B of the Indian Evidence Act is also defective, there is no location chart showing the presence of the accused nor any roaming call record pertaining to the mobile of the accused, could be filed by the prosecution. Learned Amicus Curiae lastly argued that the burden to prove its case beyond all reasonable doubt always remains on the prosecution and it never shifts even on the admission of the accused whereas in the present case, after recording of confession of the accused, no recovery of any article or weapon of offence could be effected and, therefore, the confession of the accused remained uncorroborated. Accordingly, the accused deserves acquittal in the present case.
14. I have given my thoughtful consideration to the submissions advanced by both the sides.
15. In the present case, accused has been charged with commission of offences under Section 302/404/380/201 and 411 IPC. The afore- mentioned provisions are reproduced as under:-
The relevant part of section 300 of the Indian Penal Code, which defines 'Murder', reads as follows:
300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--Sessions Case No. 57737/16 Page 11/59
Secondly --If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
Thirdly --If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-- Fourthly --If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Further relevant part of section 299, which defines 'Culpable homicide', having reference in the definition of murder, reads as follows:
299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
404. Dishonest misappropriation of property possessed by deceased person at the time of his death - Whoever dishonestly misappropriates or converts to his own use property, knowing that such property was in the possession of a deceased person at the time of that person's decease, and has not since been in the possession of any person legally entitled to such possession, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and if the offender at the time of such person's decease was employed by him as a clerk or servant, the Sessions Case No. 57737/16 Page 12/59 imprisonment may extend to seven years.
380. Theft in dwelling house, etc - Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
201. Causing disappearance of evidence of offence, or giving false information to screen offender - Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false;
if a capital offence. - shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;
411. Dishonestly receiving stolen property - Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
16. In the facts and circumstances and in view of the submissions advanced on behalf of both the sides, following points for determination are emerging:
Sessions Case No. 57737/16 Page 13/591. Whether the deceased Smt. Pavitra Kaur suffered multiple injuries on her person?
2. If so, whether the accused caused the multiple injuries on the person of the deceased ?
3. Whether such injuries were sufficient in the ordinary course of nature to cause death?
4. Whether the accused intentionally inflicted such injuries and such injuries were not accidental or unintended or some other kind of injuries were intended?
5. Whether the death of deceased Smt. Pavitra Kaur was homicidal?
6. Whether the confession made by the accused was voluntary in nature ?
7. If so, whether the confession made by the accused was truthful and trustworthy?
8. Whether the accused dishonestly misappropriated the property possessed by the deceased at the time of her death?
9. Whether the accused committed theft in the house of the deceased?
10. Whether the accused caused disappearance of evidence of the offence to screen himself from legal punishment?
11. Whether the accused dishonestly received or retained the stolen property?
12. What was the motive for commission of the offences?
17. To prove the afore-mentioned charges against the accused, the prosecution got examined 28 witnesses in all.
18. As is clear from the record, the sheet anchor of the prosecution case is the confession (Ex. PW-24/B) made by the accused before Ms. Sessions Case No. 57737/16 Page 14/59 Vandana Jain learned Metropolitan Magistrate on 16.08.2011, which he retracted later on.
19. The law regarding confessions is embodied in Section 24 to Section 30 of the Evidence Act. Section 24 of the Evidence Act stipulates that a confession made by an accused is irrelevant in a criminal proceeding if the making of the confession appears to the court to have been caused by any inducement, threat or promise. The meaning and purport of the confession was explained in Pakala Narayana Swami V. Emperor AIR 1939 PC 47 while laying down that a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. Further, an admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession. Similarly, in Aher Raja Khima V. The State of Saurashtra (1955) 2 SCR 1285, it was laid down that a confession cannot be used against an accused person unless the court is satisfied that it was voluntary and at that stage, the question whether it is true or false does not arise.
20. Reiterating the settled propositions of law regarding confession, the Hon'ble Supreme court in State (NCT of Delhi) V. Navjot Sandhu (2005) 11 SCC 600 laid down that confessions are considered highly reliable because no rational persons would make admission against his interest unless prompted by his conscience to tell the truth. It was further laid down that before acting upon a confession the court must be satisfied that it was freely and voluntarily made. A confession by hope or promise of advantage, reward or immunity or by force or by fear induced by violence or threats of violence cannot constitute evidence against the maker of the confession. The confession should have been made with full knowledge of the nature and consequences of the confession.
21. It would be apt to extract the relevant portions of the judgment in Sessions Case No. 57737/16 Page 15/59 Navjot Sandhu (supra) case as under :-
" 32. As to what should be the legal approach of the court called upon to convict a person primarily in the light of the confession or a retracted confession has been succinctly summarised in Bharat V. State of U.P (1971) 3 SCC 950. Hidayatullah, C.J., speaking for a three- Judge Bench observed thus;
"confessions can be acted upon if the court is satisfied that they are voluntary and that they are true. The voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged in the context of the entire prosecution case. The confession must fit into the proved facts and not run counter to them. When the voluntary character and its truth are accepted, it is safe to rely on it. Indeed a confession, if it is voluntary and true and not made under any inducement or threat or promise, is the most patent piece of evidence against the maker. Retracted confession, however, stands on a slightly different footing. As the Privy Council once stated, in India it is a rule to find a confession and to find it retracted later. A court may take into account the retracted confession but it must look for the reasons for the making of the confession as well as for its retraction, and must weigh the two to determine whether the retraction affects the voluntary nature of the confession or not. If the court is satisfied that it was retracted because of an after thought or advise, the retraction may not weigh with the court if the general facts proved in the case and the tenor of the confession as made and the circumstances of its making and withdrawal warrant its user. All the same, the courts do not act upon the retracted confession without finding assurance from some other sources as to the guilt of the accused. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an after thought and the earlier statement was true. This was laid down by this court in an earlier case reported in Subramaniam Goundan v. State of Madras Sessions Case No. 57737/16 Page 16/59 1958 SCR 428. "
33. The same learned Judge observed in Haroon Haji Abdulla v. State of Maharastra (1968) 2 SCR 641 that a "retracted confession must be looked upon with greater concern unless the reasons given for having made it in the first instance are on the face of them false". There was a further observation in the same paragraph that retracted confession is a weak link against the maker and more so against a co-accused. With great respect to the eminent Judge, the comment that the retracted confession is a "weak link against the maker" goes counter to a series of decisions. The observation must be viewed in the context of the fact that the court was concentrating on the confession of the co-accused rather than the evidentiary value of the retracted confession against the maker.
34. Dealing with retracted confession, a four-Judge Bench of this court speaking through Subba Rao, J., in Pyare Lal Bhargava v. State of Rajasthan AIR 1963 SC 1094 clarified the legal position thus;
"A retracted confession may form the legal basis of a conviction if the court is satisfied that it was ture and was voluntarily made. But it has been held that a court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only rule of prudence. It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstances can such a conviction be made without corroboration, for a court may, in a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars."
35. As to the extent of corroboration required, it was observed in Subramania Goundan Case that each and every circumstance mentioned in the retracted confession regarding the complicity of the maker need not be separately and independently corroborated. The learned Judges observed;
Sessions Case No. 57737/16 Page 17/59"it would be sufficient, in our opinion, that the general trend of the confession is substantiated by some evidence which would tally with what is contained in the confession."
36. Then we have the case of Shankaria v. State of Rajasthan (1978) 3 SCC 435 decided by a three-Judge Bench. Sarkaria, J., noted the twin tests to be applied to evaluate a confession: (1) whether the confession was perfectly voluntary, and (2) if so, whether it is true and trustworthy. The learned Judge pointed out that if the first test is not satisfied , the question for applying the second test does not arise. Then the court indicated one broad method by which a confession can be evaluated. It was said :
"the Court should carefully examine the confession and compare it with the rest of the evidence, in the light of surrounding circumstances and probabilities of the case. If on such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test."
37. In Parmananda Pegu v. State of Assam (2004) 7 SCC 779, this Court while adverting to the expression "corroboration of the material particulars" used in Pyare Lal Bharagava Case clarified the position thus;
"by the use of the expression 'corroboration of material particulars' , the Court has not laid down any proposition contrary to what has been clarified in Subramania Goundan case as regards the extent of corroboration required. The above expression does not imply that there should be meticulous examination of the entire material particulars. It is enough that there is broad corroboration in conformity with the general trend of the confession, as pointed out in Subramaina Goundan Case."
The analysis of the legal positions in paras 18 and 19 is also worth noting;
"18. Having thus reached a finding as to the voluntary nature of a confession, the truth of the confession should then be tested by the court. The fact that the confession has been made voluntarily, free from threat and inducement, can be regarded as presumptive Sessions Case No. 57737/16 Page 18/59 evidence of its truth. Still, there may be circumstances to indicate that the confession cannot be true wholly or partly in which case it looses much of its evidentiary value.
19. In order to be assured of the truth of confession, this Court, in a series of decisions, has evolved a rule of prudence that the court should look to corroboration from other evidence. However, there need not be corroboration in respect of each and every material particular. Broadly, there should be corroboration so that the confession taken as a whole fits into the facts proved by other evidence. In substance, the court should have assurance from all angles that the retracted confession was, infact, voluntary and it must have been true."
22. In view of the above, it is clear that the confession can be acted upon if the court is satisfied that they are voluntary and truthful. The confession must fit into the proved facts and not run counter to them. A retreated confession may form the basis of a conviction if the court is satisfied that it was true and voluntarily made but the court shall not base a conviction on such retracted confession without corroboration in material particulars. Further, each and every circumstance mentioned in the retracted confession need not be independently corroborated and it would be sufficient if the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances. It is enough that there is broad corroboration in conformity with the general trend of the confession.
23. Ms. Vandana Jain (PW-24) the learned Metropolitan Magistrate was examined by the prosecution who had recorded the confession made by the accused. PW-24 deposed that one application for recording the confession of the accused under Section 164 Cr.P.C was marked to her on 05.08.2011 by the learned Link Metropolitan Magistrate Shri M.P Singh. Consequent upon which, IO produced the accused before her and after identifying the accused, had left the court. PW-24 had put some Sessions Case No. 57737/16 Page 19/59 preliminary questions to the accused and also warned him that his confession recorded under Section 164 Cr.P.C may be read against him. In fact, PW-24 adjourned the recording of confession of the accused under Section 164 Cr.P.C for three times i.e. on 05.08.2011, 08.08.2011 and 12.08.2011 to enable him to rethink and consider if he wishes to make confession against himself and finally on 16.08.2011, PW-24 recorded the confession of the accused (Ex.PW-24/B) in Hindi language, which reads as under:
" मै 29/07/2011 को एक बजे (दोपहर के) अपनी मौसी पिवित्र कौर जो सुभाष नगर, िदल्ली मे रहती थी के घर पहु ँचा। विो उस विक्त घर मे अकेली थी। मैने उनसे 50,000 रू ब्याज पर माँगे थे क्योंकिक मेरी हालत (Business) ठीक नहीं है। उन्होंकने पैसे देनी को मना कर िदए और गुस्सा होने लगी और मेरे घर विालोंक के िखिलाफ बोलने लगी। िफर विो रसोई मे खिाने बनाने चली गई। विहाँ उन्होंकने मेरी Mother के Against बोला िक "
तेरी माँ की िकस्मत माड़ी है , और तुम उसे भी नहीं पाल सकते "। इस बात पर मुझे गुस्सा चढ़ गया। िफर विहाँ पर एक चटनी कू टने विाला Metal का डन्डा पड़ा था, मैने विो डन्डा उनके िसर पर मार िदया, उससे खिून की फव्विार छूट गयी। ये देखि कर मै घबरा गया। िफर विहाँ पर एक चक्कू पड़ा था। मै अपना होश खिो बैठा और मैने उन पर चक्कू से विार िकया। मै िबल्कुल होश खिो बैठा था। मुझे यह भी नहीं मालूम िक मैने उनके ऊपर िकतनी बार विार िकया। िफर मैने उनके हाथ की 2 चूड़ी िनकाली, और अलमारी से 50 हजार रूपये िनकाले। अलमारी बन्द थी Sessions Case No. 57737/16 Page 20/59 और Lock लगा हु आ था जो मैने चक्कू से तोड़ा। मैने िफर अपने जूते धोये, अपनी खिून से लतपत T-Shirt एक थैली मे डाली और दस ू री T-
Shirt दस ू रे कमरे से उठाकर पहनी। विहाँ पर Jewellery पड़ी थी, जो मैने नहीं उठाई। मैने चाकू, डन्डा, कमीज ( T-Shirt) एक थैली मे डाल ली और विहाँ से मै अम्बाला गया और अम्बाला से पिटयाला गया। विहाँ रास्ते मे एक नहर आती है, विह थैली मैने उस नहर मे डाल दी। िफर मै घर आ गया। िफर मैने देखिा िक मेरे जूतोंक की Back Side मे खिून लगा था। विह जूते और T-Shirt जो मैने मौसी के घर से बदली थी, एक और दस ू री नहर मे डाल दी। िफर मै घर आ गया। अगले िदन मै अपनी मौसी के संस्कार पर आ गया। िफर मै विािपस पिटयाला चला गया। 1/8/11 को पुिलस ने मुझे पिटयाला मे पकड़ा। मैने गुस्से मे यह कदम उठाया। मैने जानबूझ कर ये सब नहीं िकया। "
English Translation:
On 29.07.2011 at 1 p.m in the afternoon, I had reached at the house of my maternal aunt (mausi) Smt. Pavitra Kaur, who used to reside at Subhash Nagar, Delhi. She was alone in the house at that time. I had asked her for Rs. 50,000/- on interest as my business was not running well. She refused to give any money and she got angry and she started speaking against my family members. Then she went to the kitchen to prepare food. There she spoke against my mother to the effect " your Sessions Case No. 57737/16 Page 21/59 mother is unlucky and you cannot look after her". On hearing this, I could not control my anger. There was one metal rod lying which is used for making Chutney. I struck that metal rod on her head and blood started oozing out of her head. On seeing it, I became hopeless. Then one knife was also lying there. I lost my senses and I started stabbing her with the knife. I has completely lost my senses. I do not know for how many times I stabbed her. Then I took out two bangles of her hand and took out Rs. 50,000/- from the almirah. The almirah was lying locked which I had broken open with knife. Thereafter, I washed my shoes, kept my blood stained T-shirt in a bag and put on another T-shirt after taking it from another room. There was jewellery also which I did not pick. I had put knife, rod, T-shirt in a bag and had gone away to Ambala and from Ambala I had gone to Patiala. On the way, there is one canal. I threw away that bag in that canal. Then I returned to my home. Then I saw there was some blood stains in the backside of my shoes. That shoes and T-shirt which I had changed at my maternal aunt's (mausi's) house was thrown by me in another canal. Then I reached at my home. Next day, I attended the cremation of my maternal aunt (mausi) and then again came back to Patiala. I was arrested by the police in Patiala on 01.08.2011. I took this step in anger. I did not do all this intentionally.
24. Inspector M.L Meena (PW-26) was cross-examined on 20.09.2016 by the Learned Amicus Curiae for the accused wherein a suggestion regarding false implication of accused was put to him. Counsel for the accused also put suggestions regarding torture during police remand and Sessions Case No. 57737/16 Page 22/59 allurement given by PW-26 to the accused to make confession on the pretext that he would be released from the jail or case. PW-26 categorically denied all such suggestions and also stated that he had not gone to jail no. 3 on 17.07.2013 either to meet the accused or to threaten him. Thereafter, at the time of recording of statement under Section 313 Cr.P.C on 03.02.2017, question no.30 was put to the accused to the effect that he had shown his desire to confess his guilt to the IO (PW-26) on which he made a request to the concerned Magistrate Ms. Vandana Jain (PW-24) on 05.08.2011 for recording his statement under Section 164 Cr.P.C. The accused denied the same and stated that he was under
pressure from the police officials and was also under depression. He further stated that he was assured by the police officials that he would be let off in 15-20 days if he acted as per their directions. Further, question no.31 was put to him to explain that Ms. Vandana Jain (PW-24) has put some general questions to him and also warned him that his statement might be read against him. She also asked him to rethink and reconsider about making statement three time i.e. on 05.08.2011, 08.08.2011 and 12.08.2011. Question no.31 was admitted by the accused to be correct.
Further, regarding question no.32 qua his confessional statement (Ex.PW-24/B), accused answered that he had given his statement under pressure from the police officials as they had assured that he would be released soon if he gives the statement as per their directions.
25. In view of the cross-examination of PW-26 and the statement of accused under Section 313 Cr.P.C, it is clear that after making the confession (Ex.PW-24/B) to the learned Metropolitan Magistrate Ms. Vandana Jain (PW-24), the accused retracted it in the court. In view of the settled proportions of law as mentioned before, regarding retracted confession, the confession (Ex.PW-24/B) made by the accused is to be analysed on the settled lines.
Sessions Case No. 57737/16 Page 23/5926. First of all, it is to be seen if the confession (Ex.PW-24/B) made by the accused to Ms. Vandana Jain, learned Metropolitan Magistrate (PW-24) on 16.08.2011 was perfectly voluntary or not.
27. As per the testimony of PW-26 Inspector M.L Meena, IO of the case, accused expressed his desire to confess his guilt to him consequent upon which PW-26 moved an application before the concerned Magistrate for recording the statement of the accused under Section 164 Cr.P.C when the accused was present before the court on expiry of his Police Custody remand. As per the testimony of Ms. Vandana Jain, learned Metropolitan Magistrate (PW-24) on 05.08.2011, one application for recording the statement of the accused under Section 164 Cr.P.C was marked to her by Shri M.P Singh, learned Metropolitan Magistrate as she was the link Metropolitan Magistrate. Further, IO produced the accused in the chamber attached with the court of PW-24 and after identifying the accused vide his separate statement , IO left the chamber. PW-24 then explained to the accused that he was not bound to make the confession and if he does so, it may be used against him. PW-24 also put following preliminary questions to ascertain whether the accused was in a fit state of mind to make the statement voluntarily:-
Q1: What is your name?
A: Amarjeet Singh.
Q2: What do you do?
A: I do the business of cosmetic and supply of purse.
Q3: Where do you live?
A: Patiala.
Sessions Case No. 57737/16 Page 24/59
Q4: Where have you come from today ?
A: Police had taken me to Patiala for three days to recover
weapon.
Q5: Up to which class have you studied?
A: Ninth pass.
Q6: How many members are in your home?
A: Wife, mother and three children.
28. From the answers given by the accused, it was revealed to PW-24 that the accused was produced before her after police custody remand of three days and, therefore, PW-24 did not deem it appropriate to record his statement on that day itself. PW-24 had given time to the accused to reconsider and rethink whether he wishes to make any such statement and adjourned the matter for further proceedings on 08.08.2011. On 08.08.2011, IO produced the accused before PW-24 in the open court at 2.30 p.m and after identifying the accused, IO was directed to go outside the court. PW-24 again explained to the accused in Hindi that he was not bound to make the confession and if he does so, it may be used in evidence against him. He was further put following questions to ascertain whether he was in a fit state of mind and was making the statement voluntarily:-
Q1: Do you understand that you are not bound to make a confession?
A: Yes.
Sessions Case No. 57737/16 Page 25/59
Q2: Do you understand that your statement is being recorded
by a Magistrate and that if you make a confession, it may be used as evidence against you?
A: Yes.
Q3: Understanding these two facts, are you making a
statement before me voluntarily?
A: I am ready to make the statement without any undue
influence or ill- treatment.
Thereafter, PW-24 recorded about her satisfaction that the accused was ready to make the statement voluntarily but keeping in view that the period of three days earlier given to the accused to rethink and reconsider, was short, PW-24 deemed it appropriate to again give him more time to think about it. The accused was accordingly, remanded to judicial custody with the direction to produce the accused again on 12.08.2011 at 2.30 p.m.
29. On 12.08.2011 the accused was produced by the IO in the open court at 2.30 p.m as directed and after identifying the accused regarding which separate statement of the IO was recorded, IO was directed to go outside the court which he complied. The learned Metropolitan Magistrate again explained to the accused that he was not bound to make the confession and if he makes confession, it might be used in evidence against him. The accused stated that he got confused and did not know what to do. He further submitted that nobody from his relations had come to meet him. He requested for some more time to re-think about making the confession. In view of the request made by the accused, the learned Metropolitan Magistrate adjourned the proceedings till 16.08.2011 with the direction to produce the accused on 16.08.2011 at Sessions Case No. 57737/16 Page 26/59 2.30 p.m.
30. On 16.08.2011 Inspector Harpal Singh on behalf of the IO, produced the accused in the open court at 3 p.m as the IO was stated to be deputed in law & Order arrangement. Inspector Harpal Singh identified the accused and his separate statement was also recorded in this regard. Again Inspector Harpal singh was directed to wait outside the court which he complied. The learned Metropolitan Magistrate again explained to the accused that he was not bound to make the confession and if he choose to do so it might be used as evidence against him.The learned Metropolitan Magistrate again put the following questions to the accused in the open court :-
Q: Do you understand that you are not bound to make a confession ?
A: Yes.
Q: Do you understand that your statement is being
recorded by a Magistrate and that if you make a
confession, it may be used as evidence against you?
A: Yes.
Q: Understanding these two facts, are you making a
statement before me voluntarily?
A: I am ready to make the statement without any undue
influence or ill-treatment.
31. The learned Metropolitan Magistrate then recorded her satisfaction that the accused answered all the questions after understanding them properly and the accused was ready to make a statement voluntarily.Sessions Case No. 57737/16 Page 27/59
Thereafter, the learned Metropolitan Magistrate proceeded to record the confession of the accused (Ex.PW-24/B). After recording the confession, the learned Metropolitan Magistrate also certified that the confession made by the accused was voluntary. It was taken by her in her own handwriting and was also read over to the accused which was admitted by the accused to be correct. The learned Metropolitan Magistrate also certified that the confession (Ex.PW-24/B) so recorded by her, contained a full and true account of the statement made by the accused. After recording of confession (Ex.PW-24/B) was over, the proceedings were directed to be sent to the concerned court in sealed cover through the office of learned Additional Chief Metropolitan Magistrate (West).
32. In view of above-stated facts and circumstances regarding recording of confession (Ex.PW-24/B), it is clear that learned Metropolitan Magistrate (PW-24) properly explained to the accused about the making of a confession before a Magistrate and also cautioned him about the consequences of such confession. Learned Metropolitan Magistrate (PW-24) also explained to the accused that he was not bound to make the confession but the accused expressed his desire to make the confession and categorically stated that there was no undue influence or ill-treatment meted out to him. The learned Metropolitan Magistrate followed the settled guidelines in recording the confession under Section 164 Cr.P.C and gave more than sufficient time of about 12 days to the accused to think over before making confession. She adjourned the proceedings repeatedly so as to ensure that the accused gets sufficient time and cooling off period to think clearly before making any statement. By remanding the accused every time to the judicial custody, the learned Metropolitan Magistrate ensured that the accused remains isolated from the IO and the other police officials. The learned Metropolitan Magistrate repeated the caution for making confession time and again to Sessions Case No. 57737/16 Page 28/59 the accused and proceeded to record his confession after satisfying herself that the accused wanted to make confession voluntarily and without any undue influence and ill-treatment. The learned Metropolitan Magistrate also maintained a proper record of the proceedings conducted by her and certified about the voluntary nature of the confession.
33. It is pertinent to note here that subsequent to recording of his confession on 16.08.2011, during investigation or during the trial, the accused did not raise any question or did not move any application about the retraction of his confession. For the first time, while cross- examining PW-13 on 29.04.2014, counsel for the accused suggested that the IO allured the accused to give confessional statement on the pretext that he would be released from jail. Afterwards, at the time of recording of his statement under Section 313 Cr.P.C, the accused stated to be under pressure from the police officials as well as to be under depression at the time of recording of his confession (Ex.PW-24/B). The accused also stated that he was assured by the police officials that if he acted as per their directions, he would be let off in 15 to 20 days. The accused did not explain who were the police officials who had assured him or who had exerted pressure upon him to make confession. The accused also did not explain when and where any such promise or allurement was made to him. He also failed to give the names of any specific person or even the IO who might have allured or promised him for his early release if he make a confession in the present case. On the other hand, answering question No. 31 in his statement under Section 313 Cr.P.C, the accused admitted that learned Metropolitan Magistrate (PW-24) had duly warned him that his statement may be read against him and had asked him to re- think and re-consider about making statement on three occasions i.e. 05.08.2011, 08.08.2011 and 12.08.2011.
34. In the afore-discussed circumstances, in my considered opinion, Sessions Case No. 57737/16 Page 29/59 the confession (Ex.PW-24/B) made by the accused before the learned Metropolitan Magistrate (PW-24) was made voluntarily by him without there being any allurement or undue influence upon him. The learned Metropolitan Magistrate (PW-24) followed all the prescribed care and caution in recording the confession of an accused under Section 164 Cr.P.C and gave more than sufficient time to the accused to re-think again and again before making any confession. As observed above, initially when the learned Metropolitan Magistrate (PW-24) came to know that the accused was produced before her straight from the police custody, she refrained from recording any statement of the accused and adjourned the proceedings so as to ensure that there be no threat, promise or undue influence upon the accused. On the day when the confession of the accused was infact recorded on 16.08.2011, the IO of the case was not even present in the court being busy in maintaining Law & Order situation which again indicate that there was no allurement extended by the IO as alleged by the accused. It is, therefore, clear that the accused made a perfectly voluntary confession (Ex.PW-24/B) before the learned Metropolitan Magistrate (PW-24) on 16.08.2011.
35. Next comes the question about the truthfulness of the confession (Ex.PW-24/B, which as laid down in Bharat (supra) case, is to be judged in the context of the entire prosecution case. In other words, it is to be seen if confession (Ex.PW-24/B) gets corroborated in material particulars from the other evidence available on record.
36. To begin with, the testimonies of family members of the deceased may be referred hereunder:-
37. Shri Harpreet Singh (PW-1) had received a telephonic call from his brother-in-law (sala) namely Sunit Singh (PW-2) on 29.07.2011 who asked him to reach at his house as his mother (mother-in-law of PW-1) had received head injury consequent upon which PW-1 had reached at Sessions Case No. 57737/16 Page 30/59 his in-law's house i.e. WZ-74, First Floor, Meenakshi Garden, Delhi within 5-7 minutes. On reaching there, PW-1 noticed that the door of the house was opened and his mother-in-law namely Smt. Pavitra Kaur (deceased) was lying in a pool of blood inside the kitchen. One lady Smt. Narender Kaur, resident of ground floor of H. No. WZ-74, Meenakshi Garden, Delhi alongwith some other neighbourers were already present there, who told him that one lady doctor from nearby was called who declared Smt. Pavitra Kaur dead. PW-1 informed the police at 100 number and also to his brother-in-law Shri Sunit Singh (PW-2) who also arrived there within 30-45 minutes. On checking the house, it was revealed that a sum of Rs. 50,000/- kept in the drawer of the TV trolley and two gold bangles which the deceased was wearing in her hand were missing. PW-1 also noticed shoe sole print in the room and the kitchen.
38. PW-1 proved his statement (Ex.PW-1/A) recorded by the police. He also witnessed the seizure memo (Ex.PW-1/B, Ex.PW-1/C, Ex.PW- 1/D, Ex.PW-1/E and Ex.PW-1/F) pertaining to tala-kunda, blood lifted from the floor, blood stained clothes and pair of slippers. PW-1 also identified the case property i.e. slipper (chappal) (Ex.P-1), lock kunda with two screws (Ex.P-2), blood stained clothes of his mother-in-law (Ex.P-3), two gold bangles belonging to his mother-in-law (Ex.P-4) and 60 currency notes in the denomination of Rs.500/- (Ex.P-5) collectively.
39. Shri Sunit Singh (PW-2), the son of Smt. Pavitra Kaur (deceased), deposed that he had been residing with his wife, two children, father and mother Smt. Pavitra Kaur (deceased) at WZ-74A Ist Floor, Meenakshi Garden, New Delhi. PW-2 and his father were running a AC parts shop situated at Shop No. 5064, Roshnara Road. His wife Smt. Anupreet Kaur @ Preeti had been working as a teacher at Rukmani Devi Public School, Pitam Pura, New Delhi who used to leave the house at about 7 a.m alongwith with his two school going children, who were also studying in Sessions Case No. 57737/16 Page 31/59 the same school. PW-2 deposed that on 29.07.2011, at about 12 p.m, after taking lunch pack for his father, he went to the shop on his motorcycle. On that day, his mother Smt. Pavitra Kaur (deceased) was alone in the house. At about 3.30 p.m, he received a telephone call from his neighbour Smt. Narender, who was residing at the ground floor of WZ-74 A, Meenakshi Garden informing that mother of Sunit Singh (PW-2) was lying in a pool of blood in the kitchen and blood was oozing out of her body. PW-2 informed about the same to his father and made telephonic call to his brother-in-law (Jija) Harpreet Singh (PW-1) requesting him to reach at their house as his brother-in-law (Jija) had been residing at a distance of half kilometer from his house. PW-2 reached his residence within 25 minutes and found his mother Smt. Pavitra Kaur (deceased) lying in the kitchen smeared with blood. Shri Harpreet Singh (PW-1) informed the police. On checking, PW-2 had noticed shoe sole prints inside his house and an amount of Rs. 50,000/- ,kept in the drawer and two gold bangles, worn by his mother Smt. Pavitra Kaur (deceased), missing from his house. PW-2 deposed that police official had taken the broken kunda and lock, lifted the blood from the floor and kitchen, one pair blood stained chappal from the spot and kept them in separate parcels. PW-2 further deposed that it was Shivratri on the day of incident and they would not take non-veg on that day. However, the microwave in the house was on and chicken was kept in it and, therefore, the family members could conclude that some known person had come in the house for whom Smt. Pavitra Kaur (deceased) had kept the chicken in the microwave. PW-2 identified accused Amarjeet Singh @ Raju @ Wadhwa as the son of his maternal aunt ( mausi), who used to demand money from his mother on and off. PW-2 further deposed that on 22.07.2011, accused Amarjeet Singh @ Raju @ Wadhwa had visited their house at 1.30 p.m when PW-2 was also present Sessions Case No. 57737/16 Page 32/59 in the house. However, accused remained at their house only for five minutes and thereafter left.
40. PW-2 could identify one pair of rubber/plastic chappal of his mother (Ex.P1) Smt. Pavitra Kaur (deceased), the lock, kunda with two screws (Ex.P2) (colly), clothes of his mother (Ex.P3), which she was wearing on the day of incident, two gold bangles belonging to his mother (Ex.P 4) and 60 currency notes in the denomination of Rs.500/- (Ex.P5).
41. Shri Kanwaljeet Singh (PW-5) the husband of Smt. Pavitra Kaur (deceased) deposed that in the year 2011, he alongwith his family had been residing at H. No. 74 A, First Floor, Meenakshi Garden, Hari Nagar, New Delhi. His daughter-in-law, who was a teacher in Rukmini Devi Public school and his grandchildren used to leave the house at 7 a.m and come back at 3 - 3.30 p.m. He used to leave the house for going to his shop at 8 a.m and his son Suneet Singh @ Sonu used to reach the shop later on with lunch. His wife Smt. Pavitra Kaur (deceased) used to remain alone at the house from 1 p.m to 3 - 3.30 p.m.
42. PW-5 further deposed that on the day of incident i.e. 29.07.2011, PW-5 had left the house for going to his shop at about 8 a.m. His son Sunit reached the shop at about 1 p.m. At about 3 - 3.15 p.m, one of his neighbour had informed his son Sunit that Smt. Pavitra Kaur (deceased) was lying in the kitchen. On receiving such information, his son informed son-in-law of PW-5 namely, Bobby to reach at their residence as Bobby had been living at a distance of 1 km from their residence. After sometime, PW-5 was informed that Smt. Pavitra Kaur had been stabbed by someone and she was smeared with blood. On reaching home, PW-5 saw that some police officials and other public persons were present in his house and his wife Smt. Pavitra Kaur (deceased) was lying in the pool of blood. There were cut marks on her head, neck and on the stomach and blood was oozing out from her body. PW-5 also noticed Sessions Case No. 57737/16 Page 33/59 blood stained shoe mark on the floor of the kitchen. On checking the house, PW-5 found that an amount of Rs.50,000/-from the drawer and two gold bangles, which his wife used to wear, were missing. PW-5 further deposed that police officials inspected the place of occurrence, took the photographs, lifted the finger prints and sent the dead body of his wife Smt. Pavitra Kaur to the mortuary for postmortem, which they received on 30.07.2011 after the postmortem.
PW-5 further deposed that on the day of incident, he noticed that some chicken pieces were kept inside the microwave and one big knife and iron musli (bela) were missing from the kitchen. PW-5 had raised suspicion on accused Amarjeet Singh Wadhwa @ Raju (son of his sister- in-law (saali)) as prior to the incident, son of PW-5 namely, Shri Sunit Singh had seen accused Amarjeet Wadhwa @ Raju on the stairs of their house, who immediately left after seeing wife and daughter-in-law of PW-5. PW-5 had correctly identified the accused Amarjeet Singh Wadhwa @ Raju, who was present in the court.
43. Bineet Gujral, grandson of the deceased was also examined as PW-5. He deposed that on the day of incident, he alongwith his sister and his mother went to their school but as it was a stay back day of his mother, only he and his sister came back to their residence at about 3 - 3.15 p.m. He found the latch of the door opened. When he went inside and put on the light, he saw his grandmother Smt. Pavitra Kaur lying in pool of blood and blood was oozing out from her body. He went downstairs and informed about the same to his neighbour, who thereafter informed his father. He also informed his mother about the incident. PW-5 also deposed that after sometimes, his father, his mother and other people as well as police officials also reached to their residence.
44. A conjoint reading of the testimonies of PW-1 Harpreet Singh Sessions Case No. 57737/16 Page 34/59 (son-in-law of the deceased), PW-2 Sunit Singh (son of the deceased) PW-5 Kamaljeet Singh (husband of the deceased) and PW-5 Binit Gujral (grandson of the deceased), reveal that there was no sign of any forced entry into the house of the deceased and it was a friendly entry. It is also clear that some known person had come inside the house of the deceased for whom some chicken pieces were also kept inside the microwave kept in the kitchen. PW-2 deposed about the demand of money by the accused, who is son of his real maternal aunt (mausi) from the deceased. PW-5 raised suspicion on the accused for committing murder of the deceased and PW-2 also deposed that on 22.07.2011, accused had visited their house at about 1.30 p.m when PW-2, his wife alongwith children were also present at the house as his wife was not feeling well, hence, she had not gone to school on that day. The accused remained at the house for five minutes only and then he had left.
45. As per the testimonies of PW-13 HC Ram Chander, PW-24 SI Raj Kumar and PW-26 Inspector M.L Meena /IO of the case, on raising suspicion on the accused, he was tracked and a raiding party was constituted to apprehend the accused who was residing at Patiala, Punjab. The accused was arrested on 02.08.2011 vide arrest memo (Ex.PW-13/A) and was interrogated. The accused got recovered two gold bangles from one almirah at his house in Patiala, which were seized vide memo (Ex.PW-13/E). The accused also got recovered Rs. 30,000/- in cash which were seized vide seizure memo (Ex.PW-13/D). PW-26 also seized some cosmetic articles from another almirah in the same room and seized them vide seizure memo (Ex.PW-13/F). The recovery of two gold bangles and 30,000/- rupees in cash in the denomination of Rs.500/- from the house of the accused in Patiala, Punjab at his instance, could not be controverted by counsel for the accused by way of cross- examination. The recovery of two gold bangles (Ex.P4) and the currency Sessions Case No. 57737/16 Page 35/59 notes in a sum of Rs. 30,000/- in the denomination of Rs. 500/- each (Ex.P5) are admissible in evidence under Section 27 of the Evidence Act. While deposing in the court, both the gold bangles (Ex.P4) were also identified by PW-1, PW-2 and PW-5 to belong to the deceased which she used to wear and which were missing from her hands.
46. During the course of arguments, it was submitted by the learned counsel for the accused that no test identification proceedings were got conducted in respect of two gold bangles (Ex.P4) and the prosecution witnesses identified the gold bangles (Ex.P4) in the court only while deposing which raises a doubt on the investigation and the possibility of planting of gold bangles (Ex.P4) upon the accused cannot be ruled out. I do not find any merit in the submission of learned counsel for the accused in this regard. As is clear from the testimony of PW-1, PW-2 and PW-5, the gold bangles produced in the court were carefully examined by the afore-mentioned prosecution witnesses and afterwards only afore-mentioned prosecution witnesses identified the gold bangles to be the same which the deceased used to wear. None of the afore- mentioned prosecution witnesses was even suggested that the gold bangles (Ex.P4) were planted upon the accused in order to implicate him falsely. The deposition of PW-1, PW-2 and PW-5 with regard to identification of gold bangles (Ex.P4) could not be dislodged in any manner. Furthermore, in his statement Ex.PW-1/A which formed the basis of registration of FIR, PW-1 clearly mentioned about missing of two gold bangles from left hand of the deceased. In his cross- examination conducted on 20.9.2016, PW-26 Inspector M.L Meena, IO of the case also stated about the mention of gold bangles at the time of registration of FIR. PW-26 had also gone through the case diary dated 31.7.2011 wherein following was found recorded:
"Daraj ka kunda tala sahit ukraha hua tha, uske ander rakhe 50,000/-Sessions Case No. 57737/16 Page 36/59
rupey bhi gayab aur meri patni ke haath mein pahni do sone ki chudiya gayab, baki chudiya hamere paas hi rakhi, main un gayab sone ke chudiyo ko dekh kar pehchan sakta hu." (the handle of drawer with its lock was broken, Rs.50,000/- kept inside it were also missing and two gold bangles worn by my wife were missing, remaining bangles are kept with us, on seeing I can identify those missing gold bangles).
47. In the afore-mentioned circumstance, there is no doubt that the gold bangles (Ex.P4) recovered from the house of the accused at Patiala at his instance, were duly identified by PW-5 Kanwaljit Singh, husband of the deceased, PW-2 Sunit Singh, son of the deceased as well as PW-1 Harpreet Singh, son-in-law of the deceased, while deposing in the court to be the same gold bangles which the deceased used to wear. The fact that no Test Identification Proceedings were conducted qua the gold bangles (Ex.P4) is not fatal to the prosecution case as there is no mandatory legal requirement to always conduct a Test Identification Proceedings. The purpose of Identification parade was stated in clear terms by the Hon'ble Supreme Court in State of Maharashtra V. Suresh (2000) I SCC 471 wherein it was laid down that identification parades are not primarily meant for the court. They are meant for investigation purposes to ensure that the investigation is going on in right direction.
48. In Earabhadrappa V. State of Karnataka AIR 1983 SCC 446 It was contended that there was no proper identification that the seized ornaments belonged to the deceased Smt. Bachamma and presumption arising under illustration (a) to Section 114 of the Evidence Act looking to the long lapse of time between the commission of murder and robbery and the discovery of the stolen articles, should be that the appellant was merely a receiver of the stolen articles. Rejecting both the contentions, the Hon'ble Supreme Court believed the testimonies of prosecution Sessions Case No. 57737/16 Page 37/59 witnesses who were the family members of the deceased to hold that the seized ornaments belonged to the deceased. The Hon'ble Supreme Court outrightly rejected the contention that the testimony of prosecution witnesses as regards the seized articles can not be relied upon for want of proper test identification and held that there is no such legal requirement.
In the said case, the murder and robbery were proved to have been integral part of one and the same transaction and therefore the presumption arising under illustration (a) to Section 114 of the Evidence Act was raised to the effect that not only the appellant committed the murder of the deceased but also committed robbery of ornaments which formed part of the same transaction.
49. In the case in hand, the gold bangles (Ex.P4) (colly) were recovered at the instance of the accused from his house at Patiala, Punjab. The recovered gold bangles (Ex.P4) were duly identified by the family members of the deceased while deposing in the court. The accused never owned the gold bangles (Ex.P4) nor the possession thereof was explained by the accused. In these facts and circumstances, the contentions of the learned counsel for the accused about planting of gold bangles (Ex.P4) upon the accused in order to implicate him falsely in the present case is not meritorious and is rejected. Even otherwise, nothing could be brought on record by the accused to indicate towards any motive on the part of family members of the deceased to implicate the accused falsely. Similarly, there is no plausible explanation furnished by the accused regarding source of Rs.30,000/- in cash recovered from his house at Patiala, Punjab.
50. Another important circumstance proved by the prosecution is the recovery of clothes of the accused i.e pant and vest ( baniyan) Ex.P14 collectively which he was wearing at the time of commission of offence and which were seized vide memo Ex.PW-13/G. Both the aforesaid Sessions Case No. 57737/16 Page 38/59 clothes were having blood stains despite having been washed. The aforesaid clothes were also sent to biology division of FSL, Rohini and after analysis vide FSL result Ex.X-2, human blood was detected on both the garments. The accused did not furnish any explanation why there were blood stains on both the garments Ex.P14 (collectively). Accused simply denied about the recovery of garments Ex.P14 (collectively) from his house. However, the testimonies of PW-13 and PW-26 in this regard could not be controverted at all.
51. Next, as per the postmortem report Ex.PW-19/A the deceased suffered following seventeen external injuries:-
1. Clean incised wound (CIW) of size 3.5cm x 0.5cm present on the occipital region with clean cut margins obliquely placed having acute and obtuse angle, liquid and clotted blood present in and around the wound.
2. CIW of size 5.5cm x 0.6cm, penetrating at posterior aspect of neck which is more on right obliquely placed with regular margins with both angle acute with liquid and clotted blood in an around the would.
3. Bruise of size 5cm x 3cm on the outer aspect of lower right forearm just above the right wrist.
4. CIW of size 3cm x 1cm x bone deep present on the outer aspect of the right hand on the base of ring finger with clotted blood.
5. Bluish green bruise of size 3cm x 2cm present on the posterior aspect of right shoulder joint.
6. CIW present on the posterior aspect of right upper chest medial to the medial border of right scapula of size 3.5cm x 0.5cm deep to T.C obliquely placed with both angle acute.
7. CIW of size 3.5cm x 0.5cm x abdominal cavity horizontally placed on the lateral aspect of right Sessions Case No. 57737/16 Page 39/59 abdominal wall, 14 cm lateral to posterior mid line, 16 cm below from the angle of right scapula, 98 cm above the right heel with medial angle acute and lateral angle obtuse.
8. CIW of size 4cm x 0.5cm x deep to abdominal cavity 1 cm below external injury no.7.
9. CIW of size 3.5cm x 0.5cm x muscle deep, 0.5cm below external injury no.8.
10. CIW of size 4.5cm x 0.5cm x deep to cavity, 0.3cm below external injury no.9.
11. CIW size 5cm x 0.7cm x deep to cavity, 0.2cm below external injury no.10.
12. CIW of size 3cm x 0.5cm x muscle deep, 2.5 below external injury no.11.
13. CIW of size 2.5cm x 0.8cm x deep to oral cavity present on the right side of face.
14. CIW of size 3cm x 0.5cm x deep to abdominal cavity, 9.5cm above the umbilicus and 7cm below from sternum medical angle acute lateral angle obliquely place.
15. CIW of size 1.5cm x 0.3cm x muscle deep, 2cm below the umbilicus.
16. CIW of size 3cm x 1cm x muscle deep present on the lateral aspect of the lower left forearm, 6cm above the left wrist joint.
17. CIW of size 3.5cm x 0.5cm x deep to skull. All CIWs are covered with clotted blood.
52. On internal examination of the dead body of deceased subscalp contusion was present on all the corresponding area of penetrating injuries to skull and external injuries on the outer table of skull were involved. Similarly, the right side of neck was contused corresponding to Sessions Case No. 57737/16 Page 40/59 external injury no.2. The penetrating injury reached upto the right carotid sheath contused and tear right contused artery and vein with 30 ml clotted blood. The liver was also having penetrating injury of 3cm x 2cm x 2cm at right lobe of liver and clotted blood was present around it. Dr. Komal Singh (PW-19) proved the postmortem report Ex.PW-19/A wherein the cause of death was opined to be hemorrhagic shock subsequent to multiple stab injuries involving the vital organ of the body and injury no.2 and 7 were found sufficient to cause death in ordinary course of nature- individually or combinedly.
53. As per the confession Ex.PW-24/B, the accused had struck the deceased on her head with a metal rod used for preparing chutney and thereafter repeatedly struck her with a knife available in the kitchen. As per the testimony of PW-5, Kanwaljit Singh, husband of the deceased, one big knife and one iron Musli (Bela) were found missing from the kitchen. In his cross-examination, PW-5 further stated to have noticed knife and iron Musli (Bela) two days prior to the incident. The testimony of PW-5 regarding availability of knife and iron Musli in the kitchen could not be controverted and therefore, it is clear that one knife and one iron Musli (Bela) were available in the kitchen which were found missing later on after the incident. The fact that PW-2 Sunit Singh, son of the deceased did not depose anything about the availability of knife and iron Musli in the Kitchen as deposed by PW-5 Kanwaljit Singh only goes to indicate that the testimony of PW-5 in this regard is worth-believing as PW-2 did not depose on any tutored line as alleged by counsel for the accused. The testimony of PW-5 in this regard is truthful and trustworthy.
54. As far as the contention of learned counsel for the accused regarding non-recovery of weapon of offence is concerned, suffice it say that as per the settled proposition of law non-recovery of weapon of Sessions Case No. 57737/16 Page 41/59 offence is not fatal to the prosecution case if other clinching evidence is available on record. The availability of knife and Iron Musli in the kitchen is also natural which are used in day-to-day cooking. As per the confession Ex.PW-24/E, the fact that the accused used both knife and one iron rod used for preparing chutney also gets corroborated with the fact of both knife and Iron Musli being available in the kitchen which were found missing later on. Further, the accused also stated to have thrown both the weapons of offence in a canal while going from Ambala to Patiala. The I.O had also made efforts to recover the aforesaid weapons of offence with the help of divers, but the same could not be recovered and non-recovery memo Ex.PW-13/I was prepared in this regard. Furthermore, the confession Ex.PW-24/B wherein the accused stated to have stabbed repeatedly on the person of the deceased also gets corroborated from the postmortem report Ex.PW-19/A whereby seventeen external injuries were noticed by PW-19. The external and internal injuries sustained by the deceased as per postmortem report Ex.PW-19/A are consistent with the confession of the accused Ex.PW- 24/B. A reference to question 20 and 21 put to the accused at the time of recording of his statement under Section 313 Cr.P.C is also note-worthy wherein the fact of friendly entry, missing of knife and iron Musli from the kitchen and suspicion on the accused as he was seen on the last Friday prior to the incident and had left from the house immediately on seeing the deceased and her daughter-in-law were put to the accused. However, the accused simply denied the same and did not offer any plausible explanation in this regard.
55. To prove the investigation, the prosecution got examined following witnesses:-
56. HC B.K Mishra (PW-3) was posted at police station Hari Nagar as MHC (M) on the day of incident. He deposed about certain entries vide Sessions Case No. 57737/16 Page 42/59 which certain parcels had been deposited in the Malkhana by Inspector M.L Meena on different dates i.e. entry of five sealed parcels in store room register at serial no.3318 (Ex.PW-3/A) on 29.07.2011, entry of five parcels duly sealed with sample seal of FDMT in store room register at serial no.3321 (Ex.PW-3/B) on 30.07.2011, entry of three sealed parcels and personal search article of accused i.e. one mobile make SAMSUNG S 3310 in store room register at serial no.3333 (Ex.PW-3/C) (OSR) on 02.08.2017, entry of one sealed parcel in store room register at serial no.3337 (Ex.PW-3/D) on 04.08.2011, entry of seven sealed parcels alongwith one sample seal of FSL Rohini through Ct. Sewa Ram Vide RC No. 139/21/11 (Ex.PW-3/E) on 08.09.2011. PW-3 had also made entry of seven sealed parcels alongwith FSL result deposited by Ct. Anil, which he had collected from FSL Rohini. PW-3 handed over the FSL result to the IO on 19.03.2012 and made endorsement in the store room register in this regard.
57. HC Satya Prakash (PW-4) was posted at police station Hari Nagar on the day of incident. PW-4 had deposed about recording DD No. 28-A (Ex.PW-4/A) at about 4.14 p.m to the effect that at H. No. WZ-74, Meenakshi Garden, the mother-in-law of the caller had been murdered. After recording DD No. 28-A (Ex.PW-4/A), he handed over the same to Ct. Mahesh for giving the same to SI Surender Singh. On the same day, at about 6.15 p.m, he recorded DD No. 30A (Ex.PW-4/B) regarding receipt of original tehrir through HC Arun sent by SI Surender Ahlawat for getting the FIR registered. Thereafter, he passed the message for sending the crime team at the spot. Further, on the same day, at about 7.15 p.m PW-4 recorded DD No. 31-A (Ex.PW-4/C) regarding registration of case FIR No. 339/11 and regarding sending the computerized copy of the same to Inspector M.L Meena, learned Metropolitan Magistrate and senior officers at their residence through Sessions Case No. 57737/16 Page 43/59 special messenger Ct. Rati Ram. PW-4 had also got registered FIR No. 339/11 (Ex.PW-4/D).
58. HC Arun Kumar (PW-6) was posted at police station Hari Nagar on 29.07.2011 i.e. the day of incident. On that day, at about 4.45 p.m , he received a copy of DD No. 28A regarding murder at WZ-74A, Meenakshi Garden from Ct. Mahesh. After receiving the information, he alongwith SI Surender and Ct. Mukesh had reached the said house, where on the first floor, he found one dead body of a lady aged 63-64 years lying in the pool of blood in the kitchen. There were injuries on the head, neck and other parts of the dead body. In his presence, IO had made enquiry from the complainant and recorded his statement. IO handed over to him the tehrir for getting the case registered. PW-6 went back to police station Hari Nagar and after getting the FIR registered again came to the place of incident and handed over the copy of FIR and original tehrir to the IO. PW-6 further deposed that IO had inspected the place of occurrence. Crime team officials were also called, who inspected the spot and took photographs. IO had lifted the exhibits from the place of incident and the dead body was sent to DDU hospital mortuary for postmortem in the custody of Ct. Manoj.
59. ASI Ajit Singh (PW-7) deposed that on 29.07.2017 having received the information, he alongwith Ct. Suresh and Ct. Amit Kumr had gone to WZ-74 A, Meenakshi Garden, Hari Nagar. On the first floor of the said house, he noticed that one lady namely, Smt. Pavitra Kaur aged about 64 years was lying in the pool of blood inside the kitchen with multiple injuries. In his presence, Ct. Suresh Chand lifted the finger prints, Ct. Amit took the photographs and IO lifted the exhibits. PW-7 identified the report prepared by him (Ex.PW-7/A).
60. Ct. Suresh Chand (PW-8) deposed that on 29.07.2011, on receiving the information, he alongwith ASI Ajit Singh and Ct. Amit Sessions Case No. 57737/16 Page 44/59 Kumar went to the place of incident i.e. WZ-74 A, Meenakshi Garden, Hari Nagar. He had lifted fingerprints from the spot.
61. Shri J.S Gujral (PW-9) was brother-in-law (devar) of Smt. Pavitra Kaur(deceased). He had received the dead body of deceased Smt. Pavitra Kaur after the postmortem vide receipt (Ex.PW-2/A).
62. On the day of incident, Ct. Amit Kumar (PW-10) was posted at Mobile Crime Team, Janakpuri as photographer. On receiving the information from the control room, he alongwith ASI Ajit Singh, Incharge Mobile Crime Team, Ct. Suresh Chand, finger proficient and driver Ct. Asha Ram reached at WZ-74A, First Floor, Meenakshi Garden, where Smt. Pavitra Kaur was found lying dead in a pool of blood. He had taken the photographs of the dead body and place of occurrence at the direction of ASI Ajit Singh. PW-10 had also got exhibited 18 photographs and negatives as (Ex.PW-10/PA) collectively.
63. Shri Naresh Kumar (PW-12) was the Sr. Scientific Officer (Biology) FSL Rohini, Delhi. He deposed that he alongwith two officers namely Shri Parshuram Singh, SSO (Physics) and Shri Laxminarshiman, SSO (Physics) had inspected the scene of crime i.e. WZ-74A, First Floor, Meenakshi Garden, Hari Nagar, Delhi in the presence of IO. PW-12 deposed that blood stains were lifted from the floor of the kitchen and from the knob/handle of the door of the toilet and the same were handed over to the IO in separate parcels. The original crime scene report brought by PW-12 was got exhibited as (Ex.PW-12/A).
64. HC Ram Chander (PW-13) alongwith Inspector M.L Meena, SI Raj Kumar, HC Ajay, Ct. Sandeep,Ct. Rajinder, lady Ct. Seema had proceeded from police station Hari Nagar for going to Patiala, Punjab on 01.08.2011 in a private vehicle (Scorpion) in search of accused Amarjeet Singh @ Raju @ Wadhwa. On reaching at H. No. 229, Mohalla Sukhdasspura, Patiala, they were informed that accused had not been Sessions Case No. 57737/16 Page 45/59 residing there and the house was sold 20 years back. On receiving further information, police team reached to the other address of accused i.e. 756/3, Khalsa Mohalla, Patiala, Punjab where it was reported that accused had gone to Delhi to purchase some items. Mobile phone location of accused was traced and on pointing of one secret informer, accused Amarjeet Singh @ Raju @ Wadhwa was apprehended. During interrogation, he disclosed regarding murder of his aunt (Mausi) Smt. Pavitra Kaur (deceased). Accused was arrested and IO prepared his arrest memo (Ex.PW-13/A) and personal search memo (Ex.PW-13/B). Discloser statement of accused (Ex.PW-13/C) was recorded and he was taken to his residence i.e. H. No. 756/3, Khalsa Mohalla, Patiala from where accused got recovered an amount of Rs. 30,000/- from an iron almirah, two gold bangles from a wooden almirah, one raxine bag of black colour containing cosmetic items and leather purse. All the items so recovered were kept in parcels and were sealed with seal of MLM vide seizure memos (Ex.PW-13/D, Ex.PW-13/E and Ex.PW-13/F). The case property was deposited in the Malkhana by the IO. Accused Amarjeet Singh @ Raju @ Wadhwa was produced before the concerned court and was sent on three days police remand.
PW-13 further deposed that in the night of 03.08.2011, he alongwith IO, HC Ajay, Ct. Sandeep and accused Amarjeet Singh @ Raju @ Wadhwa went to PS Khedi Ghadia in a private vehicle where one ASI also joined them. All of them has gone to Bhakhra Nehar (canal) where accused pointed the place where he had thrown the weapon of offence i.e. knife and musli but nothing could be found there. Thereafter, accused took all of them to other side of Bhakra Nahar where accused reported to have thrown his shoes, T-shirt etc, but due to high water flow, nothing could be traced out. IO prepared the pointing out memo and thereafter, accused was taken to his residence from where one Sessions Case No. 57737/16 Page 46/59 sando baniyan (vest) and one pant were got recovered, which was sealed with the seal of MLM vide seizure memo (Ex.PW-13/G and Ex.PW- 13/I). After reaching Delhi, the accused Amarjeet Singh @ Raju @ Wadhwa was produced before the court and confessional statement of accused under Section 164 Cr.P.C was recorded before the learned Metropolitan Magistrate and he was sent to judicial custody.
PW-13 also identified the case properties i.e. two gold bangles (Ex.P4), 60 currency notes in the denomination of Rs.500/- (Ex.P-5) and certain cosmetic items (Ex.P-6) kept in black coloured bag (Ex.P-7).
65. HC Sewa Ram (PW-14) had deposed that on 08.09.2017, HC Balmiki Mishra handed over to him 6 pulands, one envelope and one sample seal of DFMT for depositing the same in FSL Rohini. PW-14 had deposited the same vide RC No. 139/21/11 (Ex.PW-3/E). After returning to the police station, he handed over the receipt to MHC(M) and IO had recorded his statement.
66. Ms. Vandana, learned Metropolitan Magistrate / Mahila Court West, Tis Hazari Court was inadvertently examined as PW-15 in place of Ms. Vandana Jain, learned Metropolitan Magistrate, who had recorded the statement of accused Amarjeet Singh @ Raju @ Wadhwa on 16.08.2011.
67. Inspector Harpal Singh (PW-16) deposed that on 16.08.2011, he was posted as Inspector Investigation at police station Hari Nagar. PW- 16 deposed that IO Inspector Madan Lal Meena had haded over the case file of the present case to him for getting the confessional statement of accused Amarjeet Singh @ Raju @ Wadhwa recorded before the learned Metropolitan Magistrate Ms. Vandana Jain. After recording the statement of accused, the accused was remanded to judicial custody. On request, PW-15 received the copy of the confessional statement of accused which was marked P1.
Sessions Case No. 57737/16 Page 47/5968. Inspector Mahesh Kumar, Draftsman, Crime Branch, PHQ was examined as PW-17. He deposed that on 08.10.2011, he was posted as SI Draftsman, Crime Branch, PHQ. On that day at the instance of Inspector M.L Meena, he reached the place of occurrence i.e. 1st Floor, H.No. WZ- 74A, Meenakshi Garden and had prepared rough notes and had taken measurements. Later on he had also prepared scaled site plan (Ex.PW- 17/A).
69. Shri Vishal Gaurav, Nodal Officer, Bharti Airtel Ltd (PW-18) deposed with regard to mobile no. 9779209597 being registered in the name of accused Amarjeet Singh @ Raju @ Wadhwa. PW-18 also got exhibited the copy of CAF (Ex.PW-18/A), photocopy of ID proof of driving license (Ex.PW-18/B), the CDR of above-said mobile number w.e.f 01.07.2011 to 02.08.2011 (Ex.PW-18/C) and the certificate under Section 65-B of the Evidence Act (Ex.PW-18/D).
70. Dr. Komal Singh, Additional M.S and HOD Forensic Medicines, DDU hospital (PW-19) had conducted the postmortem on the dead body of Smt. Pavitra Kaur (deceased) on 30.07.2017 and opined the cause of death being hemorrhagic shock subsequent to multiple stab injuries involving the vital organ of the body in her detailed postmortem report (Ex.PW-19/A).
71. SI Surender Singh Ahlawat (PW-20) was posted at police station Hari Nagar on 29.07.2011 and was on emergency duty from 8 a.m to 8 p.m. At about 4.30 p.m, on receipt of DD No. 28A, he alongwith constable Mahesh and HC Arun Kumar had gone to WZ-74-A, Meenakshi Garden. On the first floor of the above-said house, he saw dead body of Smt. Pavitra Kaur (deceased) lying in the pool of blood having some injuries on her neck, head and other parts of the body, which seemed to have been caused by some sharp edged object. PW-20 had made enquiry from the complainant and recorded his statement Sessions Case No. 57737/16 Page 48/59 (Ex.PW-1/A).He had handed over the tehrir to HC Arun to get the case registered. He informed his senior officers and accordingly, Inspector M.L Meena reached the spot, who conducted the further investigation.
72. ASI Karnail Singh, SSP Office, Patiala (PW-21) deposed that on 04.08.2011 when he was working as duty officer at police station Passiana District Patiala, Inspector M.L Meena /SHO PS-Hari Nagar alongwith accused Amarjeet Singh @ Raju @ Wadhwa and HC Ram Chander reached there. Inspector M.L Meena joined PW-21 in the investigation and they all alongwith accused Amarjeet Singh @ Raju @ Wadhwa went to Bhakhra Nehar (canal). There accused had pointed out the place near Bhakhra Canal and the IO prepared the pointing out memo (EX.PW-1/3).
73. ASI Malkeet Singh, CIA, Patiala, Punjab (PW-22) deposed that on 05.08.2011, Inspector M.L Meena alongwith HC Ram Chander and accused Amarjeet Singh @ Raju @ Wadhwa had come to PS Kheri Gandian and he joined the IO in the investigation. Accused Amarjeet Singh @ Raju @ Wadhwa had taken all of them to Bhakhra Canal, Kheri Gandian and on pointing out of the accused, IO prepared the pointing out memo (Ex.PW-13/I).
74. SI Raj Kumar (PW-23) deposed that on 01.08.2011, he alongwith Inspector M.L Meena, HC Ram Chander, HC Ajay, Ct. Sandeep, Ct. Rajinder and lady Ct. Seema proceeded from police station Hari Nagar for going to Patiala, Punjab in a private vehicle (Scorpion) in search of accused Amarjeet Singh @ Raju @ Wadhwa. On reaching at H. No. 229, Mohalla Sukhdasspura, Patiala, they were informed that accused was not residing there and the house had already been sold 20 years back. On receiving further information, police team reached to another address of accused i.e. 756/3, Khalso Mohalla, Patiala, Punjab where it was reported that accused had gone to Delhi to purchase some items. On Sessions Case No. 57737/16 Page 49/59 tracing the mobile phone location of accused as well as on pointing of one secret informer, accused Amarjeet Singh @ Raju @ Wadhwa was apprehended. During interrogation, accused disclosed regarding murder of his maternal aunty (Mausi) Smt. Pavitra Kaur (deceased). Accused Amarjeet Singh @ Raju @ Wadhwa was arrested and IO prepared his arrest memo (Ex.PW-13/A) and personal search memo (Ex.PW-13/B). Discloser statement of accused (Ex.PW-13/C) was recorded and he was taken to his residence i.e. H. No. 756/3, Khalsa Mohalla, Patiala from where accused got recovered an amount of Rs. 30,000/- from an iron almirah, two gold bangles from a wooden almirah, one raxine bag of black colour containing cosmetic items and leather purse. All the items, so recovered were kept in parcels and were sealed with seal of MLM vide seizure memos (Ex.PW-13/D, Ex.PW-13/E and Ex.PW-13/F). The case property was deposited in the Malkhana by the IO. Accused Amarjeet Singh @ Raju @ Wadhwa was produced before the concerned court and was sent on three days' police remand.
PW-23 also identified the case properties i.e. 60 currency notes in the denomination of Rs.500/- (Ex.P-5) and certain cosmetic items (Ex.P-
6) kept in black coloured bag (Ex.P-7).
75. Ms. Vandana Jain, learned Metropolitan Magistrate was examined as PW-24. As per her testimony, on 05.08.2011, one application for recording the statement of accused under Section 164 Cr.P.C (Ex.PW- 24/A), which was marked to her by learned Link Metropolitan Magistrate Shri M.P Singh. She had put some preliminary questions to the accused and had also warned the accused that his statement recorded under Section 164 Cr.P.C might be read against him. She sent the accused back three times i.e. on 05.08.2011, 08.08.2011 and 12.08.2011 to rethink. Finally on 16.08.2011, Ms. Vandana Jain, the learned Metropolitan Magistrate had recorded the statement of accused Amarjeet Sessions Case No. 57737/16 Page 50/59 Singh @ Raju @ Wadhwa under Section 164 Cr.P.C (Ex.PW-24/B). She had also directed to send the original proceedings to the concerned court in sealed pulanda and to supply the copy of the proceedings to the IO.
76. Constable Mahesh (PW-25) was handed over DD No. 28 A by the duty officer to be handed over to IO SI Surender Singh Ahlawat. After handing over DD No. 28 A to SI Surender Singh Ahlawat, he accompanied him to the place of occurrence i.e. RZ 74, First Floor, Meenakshi Garden, Hari Nagar where they found Smt. Pavitra Kaur (deceased) was lying in the pool of blood. IO had instructed him to accompany the other staff for the purpose of safeguarding the dead body while the dead body was being shifted to the mortuary of DDU hospital for postmortem. He was relieved from his duties on the next day of the incident.
77. Inspector M.L Meena (PW-26), IO of the case deposed about reaching at the spot i.e. H. No. 74 A First Floor, gali no. 3 Meenakshi Garden, Hari Nagar, New Delhi where the dead body of the deceased was found lying in the pool of blood. The dead body was removed to mortuary of DDU hospital. He prepared site plan (Ex.PW-26/A) and also seized the blood samples lifted by the FSL team vide seizure memos (Ex.PW-1/D and Ex.PW-1/E). PW-26 had also lifted some blood samples from the kitchen which were seized vide seizure memo (Ex.PW-1/C), lock and latch of the drawer in broken condition was seized vide memo (Ex.PW-1/B) and chappal (slipper) was seized vide seizure memo (Ex.PW-1/F). PW-26 also recorded the statements of the witnesses under Section 161 Cr.P.C and got the postmortem conducted on the dead body of the deceased on the next day. PW-26 further deposed about seizure of exhibits from the doctor concerned vide memo (Ex.PW-26/B) and vide memo (Ex.Pw-2/A), the dead body was handed over to the relatives after the postmortem. The exhibits were got deposited in the police malkhana.
Sessions Case No. 57737/16 Page 51/59As per the deposition of PW-26, one Smt. Narender Kaur residing at the ground floor of the afore-mentioned house and Shri Sunit (Pw-2) had raised suspicion on the accused and thereafter clue was developed and a raiding party was constituted to apprehend the accused from Patiala, Punjab where he was residing. On 01.08.2011, PW-26 alongwith SI Raj Kumar, Ct. Ram Chander, Ct. Ajay, Ct. Sandeep and others reached Patiala where the accused was tracked out at Narda Chowk and was apprehend at the instance of a secret informer. The accused was interrogated who made discloser statement regarding the commission of crime and accordingly, was arrested vide arrest memo (Ex.PW-13/A). The discloser statement (Ex.PW-13/C) of the accused was recorded and thereafter he got recovered two gold bangles lying in one almirah at his house in Patiala which were seized vide memo (Ex.Pw-13/E). A sum of Rs. 30,000/- in cash was also got recovered and seized vide memo (Ex.PW-13/D). Some cosmetic articles were also seized from the same almirah which were seized vide memo (Ex.PW-13/F). The accused was brought back to the PS Hari Nagar and the case property was deposited in the Malkhana. PW-26 further deposed that on 04.08.2011, the accused was taken to Patiala on three days' police custody remand to recover the weapons of offences and blood stained clothes. The accused had taken them to the place near Bhakhra Nehar (canal) where he disclosed to have thrown away his shoes, T-shirt and socks. Since the flow of Bhakhra Nehar (canal) was in full swing, the afore-said items could not be recovered. Thereafter, the accused was taken to his house from where he got recovered the pant and his baniyan (undershirt) having blood stains despite having been washed. The recovery memo of the said items is Ex.PW-13/G. Thereafter, the accused had taken them to the other place of Bhakhra Nehar (canal) but as the night had fallen, the recovery efforts could not be made. Next day in the morning i.e. on 05.08.2011, the Sessions Case No. 57737/16 Page 52/59 accused was taken to the same place alongwith divers and search for weapons of offence was made but the same could not be recovered despite all efforts.
78. Later on, the accused expressed his desire to confess his guilt and consequently, PW-26 moved an application before the concerned Metropolitan Magistrate for recording the statement of accused under Section 164 Cr.P.C. On 16.08.2011, the statement of accused under Section 164 Cr.P.C (Ex.PW-24/B) was recorded by the learned Metropolitan Magistrate after sending the accused in judicial custody till 12.08.2011 thrice.
PW-26 further stated that the exhibits were sent to the FSL, he collected the postmortem report, call details record, photographs and prepared the scaled site plan (Ex.PW-17/A). After conclusion of the investigation, PW-26 filed the chargesheet and after collecting the FSL result, filed the supplementary chargesheet.
PW-26 also correctly identified one plastic dibbi containing cotton wool swab having blood stains (Ex.P8), one blood stained cotton gauze (Ex.P9), another plastic dibbi containing cotton wool swab (Ex.P10), clothes of the deceased (Ex.P11), one transparent dibbi containing finger clippings (Ex.P12), one blood stained cotton gauze handed over by the doctor concerned (Ex.P13), one sando baniyan (undershirt) and one gray pant both having blood stains (Ex.P14), which were recovered at the instance of accused. PW-26 further identified the rest of the case property i.e. chappal (slipper) (Ex.P1), lock and latch of the drawer (Ex.PW-2 collectively), two gold bangles (Ex.P4) (collectively), cash of Rs. 30,000/- in the denomination of Rs. 500/- notes (Ex.P 5), cosmetic articles (Ex.P-6 (collectively) and one black coloured bag (Ex.P-7).
79. SI Devender Singh (PW-27) deposed that on 23.02.2016, he had attended the court on behalf of Inspector Rajesh Brar, SHO PS Hari Sessions Case No. 57737/16 Page 53/59 Nagar. He had collected the attested copies of FSL reports (Ex. X1 and Ex. X2) from IO M.L Meena and filed the same in the court in the form of supplementary chargesheet. The said reports were duly attested by Shri Naresh Kumar Sharma, SSO (Biology) and the supplementary chargesheet containing the said FSL reports was duly forwarded by Inspector Rajesh Brar.
80. Inspector Rajesh Brar (PW-28) deposed that on 04.03.2016 he had signed the supplementary chargesheet containing the FSL reports (Ex.PW-28/A) and the same was filed in the court on 05.03.2016.
81. With regard to the investigation conducted by the IO of the case, it was argued by Ld. Amicus Curiae for the accused that before arrival of the police officials at the scene of crime the main door of the house was opened and some neighbourers were also present there, which indicate that there was every possibility of scene of crime having been tampered with. Further, the prosecution could not furnish the details of private vehicle and its driver who had gone to Patiala, Punjab to apprehend the accused. The IO had also not obtained the details of divers who were employed to search for the weapon of offence and other articles. The learned Amicus Curiae further submitted that the prosecution did not examine HC Ajay, Ct. Sandeep and Smt. Narender Kaur, who had firstly visited the scene of crime. It was also argued that the prosecution witnesses contradicted themselves on the aspect of joining of local police of Patiala, Punjab, police officials being in uniform when they had gone to apprehend the accused, non-joining of any of the neighbourer of the accused at Patiala, Punjab and accordingly, the investigation conducted by the IO was defective raising doubts on the entire prosecution story. She further argued that the IO could not recover the weapon of offence nor the original report of comparison of finger prints was brought on record.
Sessions Case No. 57737/16 Page 54/5982. As far as the non-recovery of weapon of offence is concerned, suffice it to say that it has become an establish proposition of law that mere non-recovery of weapon of offence does not falsify the prosecution case where there is ample unimpeachable circumstantial evidence. With regard to discrepancies in evidence and lapses in investigation, Hon'ble Supreme court in its recent judgment titled as Yogesh Singh V. Mahabeer Singh & Anrs AIR 2016 SC 5160 laid down that if the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. Further, it needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradiction, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The Apex Court, relying upon C. Muniappan & Ors V. State of Tamilnadu AIR 2010 SC 3718 further laid down that there may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. Further, where there has been negligence on the part of the investigating agency or ommissions etc which resulted in defective investigation, there is a legal obligation on the part of the Court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth.
83. In view of the above-mentioned settled propositions of law regarding non-recovery of weapon of offence, contradictions in testimonies of prosecution witnesses and defective investigation, I do not Sessions Case No. 57737/16 Page 55/59 find any merit in the contentions of the learned Amicus Curiae for the accused. The contradiction brought forth in the testimonies of prosecution witnesses are minor contradictions which do not go to the root of the prosecution case. Such contradictions in the testimonies of the prosecution witnesses are but natural, which may creep in when the prosecution witnesses are examined after a gap of time. Even otherwise, no substantial contradictions could be brought by the learned Amicus Curiae for the accused in the testimonies of PW-13, PW-23 and PW-26 with regard to the recovery of two gold bangles and currency notes in a sum of Rs. 30,000/- at the instance of the accused from his house situated at Patiala, Punjab. The afore-mentioned prosecution witnesses categorically deposed about the recovery of Rs. 30,000/- cash in the denomination of Rs. 500/- notes from an iron almirah kept in the right side of the room and the recovery of two gold bangles from a wooden almirah which were kept under a small box. Therefore, the testimonies of PW-13, PW-23 and PW-26 regarding recovery of the gold bangles (Ex.P-
4) and currency notes in a sum of Rs. 30,000/- (Ex.P-5) are reliable and trustworthy. Moreover, Smt. Narender Kaur, the occupant of ground floor of the same house could not be examined by the prosecution as she expired during the trial.
84. The accused got examined his daughter Ms. Puneet Kaur (DW-1) in his defence who stated that the accused was present at Patiala on 29.07.2011 and had left the house at about 12.30 noon for Ambala to supply beauty parlour items to his clients. The accused had come back at about 7 p.m, and on the same day at about 6/6.30 p.m, DW-1 received telephonic call regarding death of the deceased which she telephonically informed to the accused.
85. In her cross-examination by learned Addl. P.P for the State, DW-1 stated that she was a student of class XIth in the year, 2011 and on Sessions Case No. 57737/16 Page 56/59 29.7.2011, she had returned from her school at about 12/12.30 noon. Admittedly, her school timings were from 8 a.m to 3 p.m., and there used to be classes after lunch break/recess. DW-1 further stated that she was studying in Govt. Model Senior Secondary School, Feel Khana, Patiala where the attendance used to be taken by the class teacher in the morning as well as after recess. On further cross-examination, DW-1 stated that she was not attending classes after lunch and her attendance used to be taken only once in the morning and not after the recess, which is not believable.
86. No other evidence was led by the accused to show that he had gone to Ambala on 29.7.2011 for supplying beauty parlour items to his clients. No proof regarding such travel to Patiala or supply of beauty parlour items to any of the clients could be brought on record by the accused. The testimony of DW-1 with regard to her not attending the classes after lunch break does not inspire confidence and appears to be an attempt to save the accused, her father, in the present case. DW-1 also admitted that no complaint to police authorities or any court of law was made by her or other family members regarding false implication of the accused in the present case. Even otherwise, the accused himself had never taken a stand that he was present in Ambala on 29.7.2011 nor did he produce any proof regarding his business activities to show that he had supplied cosmetic items to his clients at Ambala on that day.
87. In view of the above-discussed facts and circumstances, in my considered opinion, the confession of the accused Ex.PW-24/B stands corroborated in all material particulars. From the evidence available on record, it has been established that accused was present in the house of the deceased on 29-7-2011 between 1 to 3 p.m in the afternoon when the deceased was all alone in her house. The accused being the son of sister of the deceased gained friendly entry in the house and taking advantage Sessions Case No. 57737/16 Page 57/59 of the situation, committed the murder of the deceased by repeatedly striking her with knife and iron Musli. The accused also took two gold bangles out of the hand of deceased which she was wearing and Rs.50,000/- in cash out of one almirah after breaking it open. Both the gold bangles Ex.P4 and cash amount of Rs.30,000/- out of Rs.50,000/- were recovered from the house of the accused at Patiala at his instance. The accused also produced one pant and vest (baniyan) having blood stains which were also washed, but on biological analysis traces of human blood were found thereon which could not be explained by the accused.
88. In the entire set of circumstances, there is no doubt that the accused later on repented for his acts and made a voluntary and true confession Ex.PW-24/B before the learned Metropolitan Magistrate. The confession (Ex.PW-24/B) which was retracted later on, clearly was an afterthought with an attempt to nullify the entire legal procedure. The reason furnished by the accused that confession was made on the assurance of the IO to secure his early release, is false on the face of it. As discussed before, the accused, while making confession admitted substantially all the facts, which constitute the offence. The confession (Ex.PW-24/B) and naturally fits in with the rest of the evidence and the surrounding circumstances. As discussed above the voluntary and truthful nature of the confession Ex.PW-24/B leaves no doubt to hold that it was the accused and the accused only who committed the ghastly crime in the present case. The plea of alibi taken by the accused could not be established at all and accordingly, the prosecution successfully proved beyond all reasonable doubts that it was the accused and accused only who inflicted multiple injuries on the person of the deceased with metal rod (iron musli) and knife, which were sufficient in the ordinary course of nature to cause death of the deceased. The accused Sessions Case No. 57737/16 Page 58/59 intentionally inflicted such injuries and such injuries were not accidental or unintended nor some other kind of injuries were intended by the accused. In view of the entire circumstances and postmortem report (Ex.PW-19/A), it is also clear that the death of deceased Smt. Pavitra Kaur was homicidal. As discussed above, the confession (Ex.PW-24/B) made by the accused was perfectly voluntary in nature and was corroborated in all material particulars, leaving no doubt about its truthfulness and trustworthiness. Further, the accused dishonestly misappropriated the property i.e. two gold bangles (Ex.P-4) collectively possessed by the deceased at the time of her death and also committed theft of Rs. 50,000/- cash from the house of the deceased. Accused also caused disappearance of evidence of the offence to screen himself from legal punishment by throwing weapon of offence and blood stained clothes and shoes in the Bhakhra Nahar (canal). The prosecution successfully ascribed the motive to the accused to commit the afore- mentioned offences i.e. to get easy money by committing murder of the deceased when she was alone in her house in order to overcome losses suffered by him in his business and to run the business smoothly. All the points for determination are accordingly, decided.
89. I, accordingly hold the accused Amarjeet singh @ Raju @ Wadhwa S/o late Mohan Singh guilty for the commission of offences punishable under Section 302, 404, 380 and 201 IPC and convict him.
(Pronounced in the open Court (Kuldeep Narayan)
on 24.05.2017). Additional Sessions Judge (Pilot Court)
West : Court No. 33: Tis Hazari Courts
Delhi
Sessions Case No. 57737/16 Page 59/59