Delhi District Court
Sc No.45031/2015: Fir No.568/2015: Ps ... vs Satender Sharma & Anr. Dod: 02.12.2020 on 2 December, 2020
SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE-03:
(NORTH-EAST): KARKARDOOMA DISTRICT COURTS: NEW DELHI
(Sessions Case No.45031/2015)
State V/s Satender Sharma & Anr.
FIR No. : 568/2015
U/s : 302/201/120-B/34 IPC
P.S. : New Usmanpur
State V/s (i) Satender Sharma,
S/o Shri Om Prakash Sharma,
R/o Village Davihari, Post Garhi,
PS Bilsi, District Badayun, Uttar Pradesh.
(ii) Smt.Shanti Sharma,
W/o Late Shri Dilip Sharma,
R/o X-187/3A, Gali No.8, X-Block,
Brahampuri, Delhi.
Date of institution of case : 28.08.2015
Date of hearing final arguments : 01.12.2020
Date of pronouncement of judgment : 02.12.2020
JUDGMENT
BRIEF FACTS OF THE CASE:
Illicit relationship is the biggest weapon of cheating that destroys the whole family. Illicit relationship is a perfect mix for disaster. Most times, it turns family system into hell. The case in hand is perfect example of this; wherein a wife alongwith her brother-in-law (jeeja) has been chargesheeted for entering into conspiracy and thereby committing the murder of her own husband just to save their illicit relationship.
2. The facts of the case, as borne out from the record are that on receipt of DD No.32B (dated 25.05.2015), SI Inderveer Singh alongwith Constable Harender U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 1 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 and W/Constable Amlesh went to House No.X-187/3A, Khasra No.745, Gali No.8, Brahampuri, Delhi-53, where they found one male dead body (aged about 30-35 years) lying on the ground floor (near staircase) of the said house. The said police officials also noticed some injury marks and blood stains on the face and neck of the dead body. In the meantime, pursuant to receipt of DD No.31B, ASI Jagpal and Constable Vikram also reached at the spot. SI Inderveer Singh called the crime team, which accordingly arrived at the spot, inspected the same, took photographs and prepared Scene of Crime (SOC) Report. One Shri Vinod (who had made call at number 100) met SI Inderveer at the scene of crime (SOC), who told him that said dead body was of his brother Dilip Sharma (hereinafter referred to as "deceased"). SI Inderveer recorded the statement of said Shri Vinod, prepared rukka and got the case FIR in the matter registered through ASI Jagpal. In the meantime, SHO, PS New Usmanpur/Inspector Mahavir Singh also arrived at the scene of crime (SOC) and further investigation in the matter was handed over to him. During the course of investigation, IO, Inspector Mahavir Singh prepared site plan of the SOC; exhibits of the case were seized and sealed; postmortem upon the dead body of deceased Dilip Sharma was got conducted at Guru Teg Bahadur Hospital (GTB Hospital) on 26.05.2015. The cause of death was opined as, "asphyxia as a result of antemortem compression on neck". Further, during the course of investigation while recording the statement(s) of various witnesses in the matter, it came to fore that wife of deceased namely Smt.Shanti Sharma (accused herein) was having illicit relationship with her brother-in-law (jeeja) namely Satender Sharma (accused herein), who at the relevant time was putting up at the first floor of the aforesaid house belonging to deceased Shri Dilip Sharma. Thereafter, at the instance of secret informer, accused Satender Sharma was arrested in the matter on 27.05.2015, who made a disclosure statement to the effect that he in conspiracy with Smt.Shanti Sharma (wife of deceased) had killed Shri Dilip Sharma. Accordingly, the wife of deceased namely U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 2 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 Smt.Shanti Sharma was also arrested in the matter. At the instance of accused persons, the blood stained clothes worn by accused Smt.Shanti Sharma at the time of incident, one pillow cover, Rat Kill poison, one spoon, one belan and one Angoccha (worn by accused Satender Sharma at the time of incident) were recovered, seized, sealed and sent to FSL for examination. After completion of investigation, both the accused persons stood chargesheeted for offences punishable under Sections 302/201/120B/34 IPC.
3. Since offence under Section 302 IPC being exclusively triable by the Court of Sessions, therefore, the learned Additional Chief Metropolitan Magistrate vide his order dated 25.08.2015 committed the case to this Court. After hearing arguments on the point of charge and finding prima facie material to charge the accused persons, this Court vide order dated 22.09.2015 framed charges under Sections 302/201/120-B/34 IPC against both the accused persons, to which both of them pleaded not guilty and claimed trial.
4. In order to bring home the guilt of accused persons, prosecution examined as many as twenty seven (27) witnesses, whereafter PE in the matter was closed and statement of both the accused persons, i.e Satender Sharma (brother-in- law/"saadhu" of deceased) and Smt.Shanti Sharma (wife of deceased) under Section 313 Cr.P.C was recorded, wherein both claimed themselves to be innocent and having been falsely implicated in the case. Accused Satender Sharma took a categorical plea that he has been falsely implicated in the matter on account of his enmity with Smt.Rekha Sharma/PW-8 (sister-in-law/"Bhabhi" of deceased) as he had refused her to be his business partner in the business of preparing plastic dubbi (box) on moulding machine. Similarly, accused Shanti Sharma while taking the plea of false implication stated that accused Satender Sharma used to reside at the first U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 3 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 floor of her house and Smt.Rekha Sharma/PW-8 was against it, as he/Satender Sharma had refused to make Smt.Rekha Sharma his business partner. She further took a categorical defence that her husband Shri Dilip Sharma (deceased herein) had slipped from the stairs on the day of incident as he was heavily drunk. She categorically stated that deceased was a habitual drunkard.
5. I have heard arguments advanced at bar by learned Additional PP, Shri D.K Singh and Shri Abdul Sattar Gazi, learned counsel for the accused persons and perused the entire material on record. Before adverting to adjudication upon the arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter which is as under.
Evidence recorded in the matter
6. The evidence recorded in the matter/witnesses examined can be broadly classified under four categories, i.e:
(a) Family members and neighbours of deceased;
(b) Witnesses of investigation;
(c) Witness of medical evidence and;
(d) Formal witnesses.
Family members and neighbours of deceased
7. PW-2, Shri Vinod is the real elder brother of deceased. He in his evidence stated that deceased alongwith his wife Smt.Shanti Sharma (accused herein) and their three children had been residing at House No..X-187/3A, Gali No.8, Brahampuri, Delhi for the last about 4-5 years from the date of incident. He further stated that he knew accused Satender Sharma as he was also resident of Brahampuri, however, he categorically feigned ignorance about the place from U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 4 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 where he had been carrying on/running his business/work.
He further stated that on 25.05.2015 at about 7.00/8.00 AM he was present at his house, when he was informed about the death of deceased by his brother Rakesh/PW-3 through telephone. He accordingly rushed to the house of deceased, where he found the dead body of his deceased brother (Dilip Sharma) lying on the ground floor with injury marks on the face and neck. He also noticed some burn injuries on his face. He further stated that at that time accused Shanti and her three children were present in their house and weeping. He feigned ignorance as to what had happened to his deceased brother or who had killed him. He further stated that he also made enquiries from the mohalla people (neighbours) about the cause of death of his deceased brother, but no clue in this regard could be found. He further stated that thereafter he made a call at number 100, pursuant to which police came at the spot and SI Inderveer Singh/PW-23 recorded his statement Ex.PW2/A; photographs of the spot and dead body Ex.PW1/A-1 to Ex.PW1/A-15 were taken; site plan of the spot Ex.PW2/1 was prepared and thereafter the dead body of his deceased brother was shifted to mortuary on the same day.
He further stated that on the next day, i.e on 26.05.2020 he and his brother Rakesh Sharma/PW-3 went to the mortuary of GTB Hospital where they identified the dead body of his deceased brother vide memo(s) Ex.PW2/B and Ex.PW2/C and thereafter received the same against receipt Ex.PW2/D. He further stated that on 25.05.2015 his statement was recorded twice by the police.
He could not tell the reason for remanding the accused persons in judicial custody in the matter. As such, this witness was declared hostile and thoroughly cross-examined by the prosecution. In his cross-examination by learned Additional PP, this witness categorically denied the suggestion that accused Satender Sharma had been running his business (for the last 2-3 years from the date of incident) at the first floor of the house belonging to deceased.
U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 5 of 53SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 He further categorically denied the suggestion that regular quarrel used to take place between deceased and his wife Smt.Shanti Sharma (accused herein) on the issue of she having illicit relations with co-accused Satender Sharma. He further categorically denied the suggestion that both the accused persons in conspiracy with each other had committed the murder of his deceased brother, as he/deceased was a thorn in the flesh, i.e he used to obstruct the illicit relations between both the accused persons.
In his cross-examination by learned defence counsel, this witness stated that he had not seen/noticed accused Satender Sharma at the house of his deceased brother whenever he visited him. He further stated that no business/work was being carried on by accused Satender Sharma on the first floor of the house belonging to deceased either in the year 2015 or prior thereto. He admitted that his deceased brother was a habitual drunkard.
8. PW-3, Shri Rakesh is another real elder brother of deceased. He in his evidence stated that his deceased brother alongwith his wife (accused herein) and three children used to reside at House No.X-187/3A, Gali No.8, X-Block, Brahampuri Delhi for the last 4-5 years of the date of incident. He further stated that his deceased brother was jobless for the last about 3-4 years and used to consume liquor regularly. He further stated that deceased never told him about his wife (accused herein) having illicit relations with accused Satender Sharma (who is the sadhu of deceased).
He further stated that on 25.05.2015 at about 7.00 AM one neigbour informed him about weeping of wife and children of deceased; he accordingly rushed to the house of his deceased brother where he saw dead body of deceased lying on the ground floor and his wife (accused herein) and his three children weeping. He further stated that thereafter he and his brother Vinod/PW-2 made U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 6 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 enquiries from the mohalla people about the cause of death of deceased, but no clue in this regard could be found. He further stated that thereafter his brother Vinod/PW- 2 made a call at number 100 pursuant whereto police came at the spot and conducted necessary proceedings and on the next day he alongwith his brother Vinod/PW-2 went to mortuary of GTB Hospital where they identified by the dead body of his deceased brother vide identification memo Ex.PW2/C. This witness was declared hostile by the prosecution and thoroughly cross-examined by learned Additional PP. In his cross-examination by learned Additional PP, this witness categorically denied the suggestion that accused Satender Sharma had been running his business (for the last 3-4 years from the date of incident) at the first floor of the house belonging to deceased. He further denied the suggestion that accused Satender Sharma had been on visiting terms with the deceased. He further categorically denied the suggestion that prior to one month from the date of incident, deceased had told him about the illicit relations of his wife (accused herein) with accused Satender Sharma or that his brother had been killed by both the accused persons in conspiracy with each other as deceased was objecting to their illicit relations. This witness was thoroughly confronted by the learned Additional PP with the contents of his statement recorded under Section 161 Cr.P.C by the IO (i.e Ex.PW3/A), however, he stood firm and did not support the case of prosecution at all and categorically denied the contents of Ex.PW3/A in toto.
In his cross-examination by learned defence counsel, this witness stated that whenever he visited the house of his deceased brother he did not see accused Satender Sharma there. He further categorically stated that no business/work was being carried on at the first floor of the house of his deceased brother by accused Satender Sharma either in the year 2015 or prior thereto. He admitted that his deceased brother had been jobless for the last about 4- 5 years of the incident in question.
U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 7 of 53SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020
9. PW-5, Shri Nirmal Kumar @ Pappu is the neighbour of deceased. He in his evidence stated that on 25.05.2015 at about 7.00/7.15 AM he came to know about the death of deceased, pursuant whereto he rushed to the spot and notice the dead body of deceased lying on the ground floor of his house. He also noticed some injury marks on his face and neck. He further stated that thereafter he went to the house of Shri Rakesh/PW-3 (elder brother of deceased) and informed him accordingly, pursuant whereto PW-3 and PW-2/Vinod reached at the house of deceased. He further stated that thereafter PW-2/Vinod (elder brother of deceased) made a call at number 100 pursuant whereto police reached at the scene of crime (SOC) and recorded his statement.
In his cross-examination by learned defence counsel, this witness admitted that deceased was a habitual drunkard and was lying jobless for the last about 3-4 years of the incident.
10. PW-6, Master Gautam is the son of deceased, who at the time of recording of his evidence in the Court was aged about 11 years.
(Note: Since this witness was minor at the time of recording of his evidence, so this Court firstly put some general questions to him in order to ascertain his sufficient intelligence to understand the questions and answer them rationally, as required by Section 118 of the Indian Evidence Act. After due satisfaction, this witness was permitted to hit the witness box, however, considering his age, oath was not administered to him as he did not understand the sanctity of same).
He in his evidence stated that he had been residing with his parents. He categorically stated that his mausa/uncle (accused Satender herein) did not use to come to his house.
Thereafter, this witness was declared hostile by the prosecution and U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 8 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 thoroughly cross-examined by the learned Additional PP.
In his cross-examination by learned Additional PP, this witness categorically admitted that his uncle (accused Satender herein) used to manufacture plastic box which in turn were used for filling chunna, at the first floor of his house. He further admitted that his father (deceased herein) and his uncle (accused Satender herein) together used to consume liquor occasionally at his house. This witness was confronted with his statement recorded by the police, which has been exhibited as Ex.PW6/DA.
11. PW-8, Smt.Rekha, W/o Shri Sunil Sharma is the sister-in-law/jethani of accused Smt.Shanti Sharma (wife of deceased). She in her evidence stated that her brother-in-law/devar (i.e deceased Dilip Sharma) used to reside at house No.X- 187/3A, Gali No.8, X-Block, Brahampuri, Delhi alongwith his wife and three children and she was on visiting term with her devrani (i.e accused Shanti Sharma). She further stated that accused Satender Sharma is the "jeeja" of her devarni, Smt.Shanti Sharma (accused herein). She further categorically stated that accused Satender Sharma used to visit the house of deceased and in the year 2015, he was engaged in the manufacturing work of "plastic dibbi" at the first floor of the house of deceased. She volunteered to state that accused Satender Sharma used to stay at the house of deceased several times and wife of accused Satender Sharma namely Smt.Kanti used to complain about the improper behavior of accused.
She further stated that about one month prior to the incident in question, she had visited the house of deceased, wherein she saw deceased lying unconscious on the folding bed at the ground floor, while accused Satender Sharma was sitting and accused Shanti Sharma was lying under one bed-sheet. She further stated that sensing something wrong she scolded accused Satender Sharma and asked him as to why he was lying with her devrani (accused Shanti Sharma) in one bedsheet on the U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 9 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 bed and slapped him. She further stated that on this her devrani (accused Shanti Sharma) told her that it was none of her business and at that time accused Smt.Shanti Sharma told her that accused Satender Sharma was her husband. She further stated that on the next day when deceased visited her house, she narrated him the entire story on which deceased revealed her that accused Satender Sharma was running his business from the first floor of his house just to have illicit relations with his wife (accused Shanti Sharma).
She further stated that on 25.05.2015, at about 9.00 AM, her jeth Rakesh/PW-3 came to her house and informed about the death of deceased, pursuant whereto she alongwith her both the jethanis namely Smt.Hemlata and Smt.Madhu rushed to the house of deceased where they noticed the dead body of deceased lying near the washing machine on the ground floor. She further categorically stated that she had noticed blood stains on the teeth and chest of deceased and one cut mark on his cheek. She further stated that at that time her devrani/accused Shanti Sharma was present near the dead body of deceased and asked her to cremate the same immediately by stating, "ab jab mar gaye hai to jaldi le kar chalo" on which she suspected her of having committed the murder of deceased. She further stated that her jeth Vinod Sharma/PW-2 made a call at number 100.
This witness was thoroughly cross-examined by the defence. In her cross-examination by learned defence counsel, this witness stated that she had seen both the accused persons together about 10-15 prior to the date of incident. In this regard, she was confronted with her statement recorded by the police Ex.PW8/DA, wherein it is recorded that she had seen both the accused persons together about one month prior to the date of incident. She volunteered to state that she had seen both the accused persons many times sitting together like husband and wife. She further stated that deceased was habitual drunkard and was unemployed. She in her cross-examination categorically stated that about one month prior to U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 10 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 the incident in question, she had seen both the accused persons on a single bed, while deceased was lying on another bed under intoxicated condition and from her observation she assumed that both the accused persons were having intimate relations. She categorically denied the suggestion of the defence that deceased died a natural death or that the accused persons had not committed his murder. She further categorically denied the suggestion of defence that deceased died after falling from the staircase in an inebriated condition; instead she categorically stated that deceased must have been killed that night.
Witnesses of investigation
12. PW-1, Constable Sanjay Kumar was member of the Mobile Crime Team and he had taken 15 photographs of the dead body of deceased vis-à-vis scene of crime (SOC) on 25.05.2015. The said photographs have been proved on record as Ex.PW1/A-1 to Ex.PW1/A-15, while the negatives thereof have been proved on record as Ex.PW1/B-1 to Ex.PW1/B-15.
13. PW-14, Constable Harendra in his evidence stated that on 25.05.2015 he was on emergency duty at PS New Usmanpur. On that day, at about 9.25 AM, copy of DD No.32-B was assigned to SI Inderveer/PW-23, pursuant whereto he alongwith SI Inderveer and W/Constable Amlesh/PW-17 reached at the ground floor of house bearing No.X-187/3A, Gali No.8, X-Block, Brahampuri, Delhi, where ASI Jagpal/PW-15 was already found present there. He further stated that they noticed one dead body of male lying at the ground floor of said house, whose head was towards the staircase while feet were towards the main door. He further stated that they noticed injury marks on the left side of neck, lip and nose of the dead body. He further stated that SI Inderveer/PW-23 informed Crime Team, which accordingly reached at the scene of crime (SOC) and conducted its proceedings and took U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 11 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 photographs. This witness identified the said photographs which have already been exhibited as Ex.PW1/A1 to Ex.PW1/A15. He further stated that brother and wife of deceased were also present at the scene of crime. He further stated that SI Inderveer/PW-23 lifted blood, blood smeared concrete and earth control from the scene of crime (SOC), converted them into three separate parcels and seized vide seizure memo Ex.PW14/A. He further stated that SI Inderveer/PW-23 recorded the statement of Vinod/PW-2 and got the case FIR in the matter registered through ASI Jagpal/PW-15 and thereafter he took the dead body to mortuary of GTB Hospital. He further stated that inquest proceedings were completed by Inspector Mahavir Singh/PW-26 on 26.05.2020 and after postmortem, the dead body was released to the brother of deceased vide receipt Ex.PW2/D. he further stated that mortuary staff had handed him over two sealed parcels containing the clothes of deceased, blood on gauge as sample alongwith sample seal which were seized by IO vide seizure memo Ex.PW14/B. He further stated that on 04.07.2015, he had deposited one sealed parcel containing spoon with FSL and thereafter received the opinion of FSL on 04.08.2015 and handed over the same to MHC(M).
Despite being accorded opportunity, this witness was not cross- examined by the defence.
14. PW-15, ASI Jagpal in his evidence stated that he alongwith Constable Vikram had reached at the scene of crime (SOC) on 25.05.2020 pursuant to receipt of DD No.31 B (Ex.PW15/A) (which was with regard to some quarrel). He further stated that shortly thereafter SI Inderveer Singh/PW-23, Constable Harinder/PW-14 and W/Constable Amlesh/PW-17 also reached at the scene of crime (SOC) pursuant to receipt of DD No.32-B (Ex.PW15/B). His further examination- in-chief is on the lines of PW-14/Constable Harendra. This witness identified the U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 12 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 photographs clicked by PW-1/Constable Sanjay at the SOC on 25.05.2020 as Ex.PW1/A1 to Ex..PW1/A15. He has also identified his signatures upon seizure memo Ex.PW14/A at point B. He further stated that after recording the statement of Vinod/PW-2, SI Inderveer Singh had prepared rukka (Ex.PW4/A) and he took the same to Police Station and got the instant case FIR registered and after registration of FIR came back at the spot and handed over original rukka and copy of FIR to Inspector Mahavir Singh/PW-26, who by that time had also reached at SOC. He further stated that thereafter IO inspected the spot and prepared site plan Ex.PW15/C upon which he identified his signatures at point B. He further stated that thereafter the dead body of deceased was sent to the mortuary of GTB Hospital through Constable Harendra/PW-14.
Despite being accorded opportunity, this witness was also not cross- examined by the defence.
15. PW-16, W/Constable Reenu Chaudhary in her evidence stated that on 25.05.2015 she was posted as DD Writer in PS New Usmanpur and has recorded DD No.31-B and DD No.32-B, copies of which have been proved on record as Ex.PW15/A and Ex.PW15/B respectively.
She further stated that on 27.05.2015, she had joined investigation of the present case with HC Nathu Ram/PW-22, HC Ram Avtar/PW-19 and IO, Inspector Mahavir Singh/PW-26 and at about 9.00 AM reached Khajuri Chowk, Delhi where at the instance of secret informer, accused Satender Sharma was arrested in the matter, his personal search conducted and his disclosure statement recorded vide Ex.PW16/A, bearing her signatures at point A. She further stated on the instance of accused Satender Sharma, co-accused Smt.Shanti Sharma was also arrested in the matter, her personal search conducted and disclosure statement recorded vide memos Ex.PW16/B, Ex.PW16/C and Ex.PW16/D respectively.
U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 13 of 53SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 She further stated that pursuant to her disclosure statement (Ex.PW16/D), accused Smt.Shanti Sharma got recovered one pillow cover, saree, blouse, peticoat, half part of Mortein (rat killer) which were taken possession of vide seizure memos Ex.PW16/E and Ex.PW16/F; and IO prepared site plan of the SOC vide Ex.PW16/G. She further stated that accused persons got recovered one "belan" and "one steel spoon" from the first floor of the house of deceased, sketches of the same were prepared vide memos Ex.PW16/H and Ex.PW16/I and thereafter taken into possession vide seizure memo Ex.PW16/J and IO also prepared site plan vide Ex.PW16/K. This witness identified the clothes (saree, blouse and petticoat) worn by accused Shanti Sharma at the time of incident as Ex.P1 (colly); pillow cover as Ex.P2; "belan" as Ex.P3; steel spoon as Ex.P4; and mortein tikki (rat kill) as Ex.P5.
This witness was thoroughly cross-examined by the learned defence counsel. In her cross-examination, she categorically stated that the spoon and belan were got recovered by accused Shanti Sharma from the corner of her house and the same were not found having any blood stains as she had disclosed that the same were washed by her.
16. PW-17, W/Constable Amlesh was part of the police team comprising SI Inderveer/PW-23 and Constable Harendra/PW-14 that had firstly reached at the scene of crime (SOC) on 25.05.2015 pursuant to receipt of DD No.32B has deposed on the lines of PW14/Constable Harendra. She in her evidence identified the photographs Ex.PW1/A1 to Ex.PW1/A15 depicting the scene of crime (SOC) and deceased.
In her cross-examination by learned defence counsel, she categorically denied the suggestion that she did not visit the scene of crime (SOC) on 25.05.2015 or no photographs were clicked in her presence or no seizure memo U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 14 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 prepared.
17. PW-18, SI Mukesh Chauhan is the Incharge of Mobile Crime Team, who in his evidence stated that on 25.05.2015 on receipt of information from Control Room, he alongwith Constable Sanjay/PW-1 reached at the spot, i.e House No.X-187/3A, Gali No.8, X-Block, Brahampuri, New Usmanpur at about 11.00 AM, where senior police officers and SI Inderveer/PW-23 met him. He further stated that after inspecting the spot, he prepared Scene of Crime (SOC) report, which has been proved on record as Ex.PW8/A. He further stated that photographs of the SOC and dead body were taken, however, no chance prints could be developed from the SOC.
In his cross-examination by learned defence counsel, he categorically denied the suggestion that SOC report Ex.PW8/A was prepared by him without paying any visit thereto.
18. PW-19, HC Ram Avtar in his evidence stated that on 27.05.2015 he had joined the investigation of the present case with IO, Inspector Mahavir Singh/PW-26, HC Nathu Ram/PW-22 and W/Constable Reenu Chaudhary/PW-16. He further stated that at about 10.05 AM on the said day, accused Satender Sharma was arrested in the matter from Khajuri Chowk at the pointing out of secret informer. He has proved the documents of arrest qua accused Satender vide Ex.PW19/A and Ex.PW19/B and further identified his signatures on the disclosure statement (Ex.PW16/A) of accused Satender Sharma at point B. He further stated that during the course of investigation, it came to fore that deceased was killed/ murdered by accused Satender Sharma with the help of co-accused Smt.Shanti Sharma (wife of deceased). He further stated that it also came to fore during investigation that accused Satender Sharma was running his factory at the first U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 15 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 floor of the house of deceased and he had illicit relations with the wife of deceased, i.e co-accused Smt.Shanti Sharma. He has further proved on record pointing out memo qua the place of murder as Ex.PW19/B. He further stated that pursuant to the disclosure statement (Ex.PW16/A) of accused Satender Sharma, co- accused Smt.Shanti Sharma was also arrested in the matter, her personal search conducted and disclosure statement recorded vide memos Ex.PW16/B, Ex.PW16/C and Ex.PW16/D respectively, on which he identified his signatures at point C. His further examination-in-chief is on the lines of PW-16 W/Ct.Reenu Chaudhary. He has further identified his signatures on the sketches of "belan" (Ex.PW16/H) and "spoon" (Ex.PW16/I) and seizure memo thereof (Ex.PW16/J) at point C. This witness identified the clothes (saree, blouse and petticoat) worn by accused Shanti Sharma at the time of incident as Ex.P1 (colly); pillow cover as Ex.P2; "belan" as Ex.P3; steel spoon as Ex.P4; and mortein tikki (rat kill) as Ex.P5.
In his cross-examination by learned defence counsel, this witness stated that he had not noticed any blood stains on "belan" (Ex.P3); however, he categorically denied the suggestion that no blood stains were noticed on "spoon" (Ex.P4). He admitted in his cross-examination that no site plan qua the place of alleged recovery was prepared by the IO. He further admitted that IO neither examined any witness nor collected any documentary evidence in his presence to the effect that accused Satender Sharma had been running his workshop/factory at the the top floor of the house of co-accused Smt.Shanti Sharma.
19. PW-21, HC Vikram in his evidence stated that on 28.05.2015 he had joined the investigation of the present case with HC Nathu Ram/PW-22 and SI Inderveer Singh/PW-23. He further stated that on the directions of Inspector Mahavir Singh/PW-26, they had taken accused Satender Sharma to his house at his native village Davihari, PS Bilsi, District Badayun, Uttar Pradesh, from where he U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 16 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 got recovered one grey T-Shirt, one white pant and one checkdar cloth piece (Angochha) from the ground floor of his house, which on checking was found containing blood stains and same were seized vide seizure memo Ex.PW21/A. He further stated that SI Inderveer Singh/PW-26 had prepared site plan of the place of recovery of said "Angochha", which has been proved on record as Ex.PW21/B. This witness identified the said T-shirt as Ex.P5, pant as Ex.P6 and "Angochha" as Ex.P7.
Despite according opportunity, this witness was not cross-examined on behalf of both the accused persons.
20. PW-22, HC Nathu Ram, who had joined the investigation of the case on 27.05.2015 and 28.05.2015 under the supervision of Inspector Mahavir Singh deposed on the lines of PW-16 W/Constable Reenu Chaudhary, PW-19/HC Ram Avtar and PW-21/Constable Vikram. He has identified his signatures on various documents prepared by IO during the course of investigation, viz., documents qua arrest, personal search and disclosure statement(s) of both the accused persons and documents qua recovery of articles and seizure thereof.
This witness further identified the clothes (saree, blouse and petticoat) worn by accused Shanti Sharma at the time of incident as Ex.P1 (colly); pillow cover as Ex.P2; "belan" as Ex.P3; steel spoon as Ex.P4; and mortein tikki (rat kill) as Ex.P5. He also identified the T-shirt as Ex.P5, pant as Ex.P6 and "Angochha" as Ex.P7 (which all were recovered from the house of accused Satender Sharma, situated at his native village Davihari, District Badayun, UP).
This witness was extensively cross-examined by the defence. In his cross-examination by learned defence counsel, this witness stated that no notice was served upon the persons who had refused to join investigation. However, he categorically denied the suggestion that pursuant to their arrest, both the accused U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 17 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 persons had not made any disclosure statement(s) and the recoveries have been planted upon them. He further categorically denied the suggestion that both the accused persons have not made any disclosure statement about they having killed the deceased on account of their illicit relations. He further categorically denied the suggestion that no recovery of T-Shirt (Ex.P5), pant (Ex.P6) and Angochha (Ex.P7) from the house of accused Satender Sharma, which is situated at his native Village Davihari, District Badayun, Uttar Pradesh. He categorically stated the colour of saree and blouse to be black and yellow and that of petticoat to be maroon. He further stated that IO had got recorded his arrival and departure entry at local PS Bilsi, District Badayun, Uttar Pradesh, however, he could not tell the serial number thereof.
21. PW-23, SI Inderveer Singh, is the first IO of the case, who on receipt of DD No.32B (Ex.PW15/B) had reached at the scene of crime (SOC), i.e House No.187/3A, Gali No.8, X-Block, Brahampuri, Delhi-53 on 25.05.2015 alongwith Constable Harendra/PW-14 and W/Constable Amlesh/PW-17 deposed on the lines of said witnesses. He categorically stated that he had noticed some injury marks and blood stains on the face and neck of deceased on the said day. He further stated that in the meantime, ASI Jagpal/PW-15 alongwith Constable Vikram/PW-21 had also arrived at SOC, where name of deceased was revealed as Dilip Sharma. He further categorically stated that during the course of investigation, it came to his notice that one relative of deceased had been running his work from the first floor of the residence of deceased. He further stated that in the meantime, Crime Team also reached at SOC and its Incharge/PW-18 prepared SOC report vide Ex.PW18/A. He identified the photographs of deceased and SOC (clicked by PW-1) as Ex.PW1/A-1 to Ex..PW1/A15. He further stated that he had recorded the statement of Shri Vinod/PW-2 (elder brother of deceased who had made call at U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 18 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 number 100) vide memo Ex.PW2A, attested the same at point X, prepared rukka/Ex.PW4/A and got the case FIR registered in the matter through ASI Jagpal/PW-15. He further stated that thereafter investigation of the case was handed over to Inspector Mahavir Singh/PW-26, who prepared site plan Ex.PW15/C at the instance of complainant.
He further stated that on 26.05.2015 he alongwith other members of the police team reached at the mortuary of GTB Hospital, where postmortem upon the dead body of deceased was got conducted vide PM Report Ex.PW13/A. He in his evidence has proved the various aspects of investigation.
He further stated that on 28.05.2015 he alongwith other police team members and accused Satender Sharma had gone to the native village namely Davihari, District Badayun (Uttar Pradesh) of accused Satender Sharma, where he got recovered one T-shirt as Ex.P5, pant as Ex.P6 and "Angochha" as Ex.P7 , which all were sealed and seized vide seizure memo Ex.PW21/A. He further stated that he had prepared site plan Ex.PW21/B of the place of recovery of aforesaid articles from the native village of accused Satender Sharma.
He further identified the T-shirt as Ex.P5, pant as Ex.P6 and "Angochha" as Ex.P7 (which all were recovered from the house of accused Satender Sharma, situated at his native village Davihari, District Badayun, UP).
This witness was also thoroughly cross-examined by the defence. In his cross-examination by learned defence counsel, this witness stated that he had seen injuries on the face of deceased, however, he could not tell the number(s) thereof. He stated that disclosure statement of accused Satender Sharma was not recorded in his presence. He further stated that on reaching District Badayun, 28.05.2015, he had made arrival entry at PS Bilsi, however, he could not tell the number thereof. He also could not tell the name of person to whom he handed over his seal after use. He categorically denied the suggestion that no recovery of U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 19 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 clothes/articles, which have been proved on record as Ex.P5 (T-Shirt), Ex.P6 (Pant) and Ex.P7 (Angochha) were effected from the house of accused Satender Sharma (situated at his native village Davihari, District Badayun, UP).
22. PW-25, Inspector Mahesh Kumar is the Draftsman who had prepared the scaled site plan of the scene of crime (SOC) on the asking of Inspector Mahavir Singh/PW-26. The said scaled site plan has been proved on record as Ex.PW25/A.
23. PW-26, Inspector Mahavir Singh is the main IO of the case. He in his evidence stated that on 25.05.2015 he was lying posted as SHO, PS New Usmanpur and on that day at about 9.30 AM, pursuant to recording of DD No.31B (Ex.PW15/A) and DD No.32-B (Ex.PW15/B), he came to know about the incident in question and accordingly reached at the SOC, i.e House No..187/3A, X-Block, Brahampuri, Delhi at about 10.30 AM, where he saw dead body of one male lying on the ground floor of the said house. He further stated that he had also noticed injury marks, burn marks and blood stains on the dead body. His further examination-in-chief is on the lines of PW-23/SI Inderveer Singh, PW-16 W/Constable Reenu Chaudhary, PW-19/HC Ram Avtar, PW-22/HC Nathu Ram and PW-25/Inspector Mahesh Kumar (Draftsman). This witness has stated in detail about various proceedings of investigation conducted under his supervision (viz., recording of statement of PW-2/Vinod by SI Inderveer/PW-23, preparation of rukka on his statement; registration of case FIR in the matter; proceedings conducted by mobile crime team at SOC; arrest and subsequent recording of disclosure statement(s) of both the accused persons, conducting of postmortem on the body of deceased in the mortuary of GTB Hospital on 26.05.2020 and thereafter handing over the body of deceased to his relatives, preparation of site plan, sealing and seizure of various exhibits of the case and sending them FSL for forensic opinion U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 20 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 etc.). He identified the photographs Ex.PW1/A1 to Ex.PW1/A15 depicting the deceased and injuries apparent on his face. He categorically stated that during the course of recording of statement(s) of witnesses in the matter it came to fore that accused Smt.Shanti Sharma (wife of deceased) was having illicit relations with her jeeja, i.e accused Satender Sharma, who was carrying out his work from the first floor of the residence of deceased. He categorically stated that human blood was found present on the saree and blouse (Ex.P1 Colly) belonging to accused Shanti Sharma and human blood was also found present upon "Angochha" (Ex.P7).
He further stated that during the course of investigation, two expert opinions (prepared by Ms.Manisha Upadhyaya) Ex.PW26/B and Ex.PW26/B1 were collected by him. He has further stated that blood group "A" was found present on the pillow (Ex.P2), pant and shirt (Ex.P5 and Ex.P6) of accused Satender Sharma. He has further proved on record various forwarding letters (sent to and received from FSL) as Ex.PW26/B2 to Ex.PW26/B4 and report of viscera (prepared by Shri M.L Meena) as Ex.PW26/D, forwarding letter thereof as Ex.PW26/D1; and Certificate issued under Section 65-B of Indian Evidence Act qua proper maintenance of computer system as Ex.PW26/E. This witness identified the clothes (saree, blouse and petticoat) worn by accused Shanti Sharma at the time of incident as Ex.P1 (colly); pillow cover as Ex.P2; "belan" as Ex.P3; steel spoon as Ex.P4; and mortein tikki (rat kill) as Ex.P5. He also identified the T-shirt as Ex.P5, pant as Ex.P6 and "Angochha" as Ex.P7 (which all were recovered by PW-23/SI Inderveer from the house of accused atender Sharma, situated at his native village Davihari, District Badayun, UP).
Despite repeated opportunities accorded to the defence (even after allowing the application of defence moved under section 311 Cr.P.C vide order dated 19.08.2017), this witness was not cross-examined by the accused persons.
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24. PW-27, ASI Dina Nath at the relevant time was lying posted as Incharge of PCR Vehicle Baker-11. He in his evidence stated that on 25.05.2015 at about 9.12 AM on receipt of information on wireless from the Control Room to the effect "brother of caller is lying dead in his house bearing No.X-187/A, Gali No.8, near Bobby ki Dukaan, 3rd Pushta, New Usmanpur" he alongwith his staff reached at the spot where he found one dead body of a male person lying on the ground floor of said house. He further stated that wife of deceased namely Smt.Shanti Sharma (accused herein) met him at the spot and thereafter he passed the requisite information to the Control Room, which in verbatim is re-produced hereunder:
"Moka par Dalip S/o Dwarka Prasad, aged about 37 years, jo apne room mein jameen par dead pada hai, jiske gale mein chot ka nishan hai or aisa lag raha hai ki uske upar tejab dal rakh hai, iski chest jali hui hai, iski patni Shanti, aged about 30 years mili hai, jisne batalaya kal raat ko nashi sharab mein ghar main room mein aaye, uske baad mein apne bed par so gayi, morning meiin dekha yeh is halat mein mila hai."
He further stated that thereafter ASI Jagpal/PW-15 and other police officials came at the spot. He has proved on record the information passed by him to the Control Room as Ex.PW27/A. In his cross-examination by learned defence counsel, this witness stated that he had reached at the spot/SOC within eight minutes of the receipt of information on wireless set. He further stated that ASI Jagpal/PW-15 had not interrogated Smt.Shanti Sharma (wife of deceased) in his presence. He denied the suggestion that information contained in Ex.PW27/A is ante-dated and ante-time.
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25. PW-13, Dr.Priyal Jain, Sr. Demonstrator, Department of Forensic Medicine, UCMS and GTB Hospital had conducted post-mortem upon the dead body of deceased Dilip Sharma and she has proved on record the post-mortem report prepared by her as Ex.PW13/A (running into four pages). Cause of death by this witness was opined as "asphyxia as a result of antemortem compression of neck. Injury No.1 is also sufficient to cause death in ordinary course of nature and produced by blunt force impact. Injury No.11 was produced by single sharp- edged weapon. All other injuries were produced by blunt force impact."
Despite according opportunity, this witness was not cross-examined by the learned defence counsel.
Formal witnesses
26. PW-4, HC Daya Nand was lying posted as Duty Officer in PS New Usmanpur on 25.05.2015 and has proved on record endorsement made by him upon rukka (which was produced before him by ASI Jagpal/PW-15) as Ex.PW4/A and copy of FIR recorded by him in the matter as Ex.PW4/B. He further stated that after registration of FIR, copy thereof alongwith original rukka was handed over to ASI Jagpal/PW-15 for handing over the same to IO of the case. He has further proved on record copies of DD No.11A and DD No.12A as Ex.PW4/C and Ex.PW4/D respectively.
In his cross-examination by learned defence counsel, this witness categorically denied the suggestion that the FIR and aforesaid DD Entries were ante- dated and ante-timed.
27. PW-7, Constable Mohd. Rafiq at the relevant date and time was lying posted as "Special Messenger" in PS New Usmanpur. He in his evidence has stated that on 25.05.2015 at about 2.10 PM, the Duty Officer/PW-4 had handed over U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 23 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 copy(ies) of FIR to him which inturn were delivered by him to Ld.ACMM and Jt.Commisioner of Police, Delhi Police.
Despite opportunity, this witness was not cross-examined on behalf of defence.
28. PW-9, Constable Rakesh in his evidence stated that on 25.05.2015, he was lying posted in PHQ at Channel No.147 to attend the number 100 calls(s). He stated that on the said day at about 9.05 AM he received a call from mobile phone number 8385841407 to the effect that, "caller bol raha hai ki mera bhai ghar mein mara pada hai, jo khoon mein sandha pada hai" and the address given by the said caller was X-187/A, Gali No.8, near Buggi ki Dukaan, 3rd Pushta. He further stated that he filled the said information in PCR Form Ex.PW9/A. He has further proved on record Certificate issued by Nodal Officer under Section 65-B of Indian Evidence Act regarding correctness of said PCR Form as Ex.PW9/B. Despite according opportunity, this witness was not cross-examined by the learned defence counsel.
29. PW-10, Constable Mukesh Kumar in his evidence stated that on 25.06.2015, he had brought one sealed parcel containing viscera, one sample seal and sealed envelops containing postmortem report of deceased from Forensic Department of GTB Hospital and handed over the same to IO, Inspector Mahavir Singh/PW-26, who seized the same vide seizure memo Ex.PW10/A, bearing his signature at point A. Despite giving opportunity, this witness was not cross-examined by the learned defence counsel.
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30. PW-11, Constable Manoj Kumar had collected the postmortem report of deceased from GTB Hospital on 02.07.2015 and thereafter handed over the same to IO, Inspector Mahavir Singh/PW-26. He further stated that till the time postmortem report remained with him, same was not tampered with.
Despite according opportunity, this witness was not cross-examined by the learned defence counsel.
31. PW-12, Constable Adesh Kumar in his evidence stated that on 13.08.2015 he had deposited eleven (11) sealed parcels (containing exhibits of the present case) to FSL Rohini vide RC No.101/21/15 (Ex.PW12/A) and thereafter handed over Acknowledgment (Ex.PW12/B) thereof to MHC(M) HC Kishan Singh/PW-20. He further stated that till the time exhibits remained in his custody, same were not tampered with.
Despite according opportunity, this witness was not cross-examined by the learned defence counsel.
32. PW-20, HC Kishan Singh at the relevant time was lying posted as MHC(M) at PS New Usmanpur and he has proved on record the entries made by him in Register No.19 regarding deposition of various sealed parcels and exhibits of the case in Malkhana by the IO. The details of the said entries are as under:
(a) Three sealed parcels deposited by SI Inderveer Singh/PW-23 on 25.05.2015 vide Entry No.2462, copy of same has been proved on record as Ex.PW20/A;
(b) Two sealed parcels containing exhibits of the case deposited by Inspector Mahavir Singh/PW-26 on 26.05.2015 vide Entry No.2466, copy of same has been proved on record as Ex.PW20/B;
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(c) Five sealed parcels containing exhibits of the case deposited by Inspector Mahavir Singh/PW-26 on 27.05.2015 vide Entry No.2467, copy of same has been proved on record as Ex.PW20/C;
(d) Three sealed parcels containing exhibits of the case deposited by SI Inderveer Singh/PW-23 on 28.05.2015 vide Entry No.2468, copy of same has been proved on record as Ex.PW20/D;
(e) Two sealed parcels containing viscera, postmortem report and sample seal, deposited by Inspector Mahavir Singh/PW-26 on 25.06.2015 vide Entry No.2516, copy of same has been proved on record as Ex.PW20/E;
(f) On 07.08.2015, two sealed parcels containing exhibit viscera and rat kill mortein alogwith sample seal with forwarding letter sent to FSL on the direction of IO vide RC No.97/21/15 (Ex.PW20/F) through Constable Anil; endorsement to this effect made in Register No.19 has been proved on record as Ex.PW20/G and copy of Acknowledgement of FSL is Ex.PW20/H;
(g) On 13.08.2015, eleven sealed parcels containing exhibits of the case alongwith sample seal were sent to FSL vide RC No.101/21/15 (Ex.PW20/I) though Constable Adesh Kumar/PW-12; endorsement to this effect made in Register No.19 has been proved on record as Ex.PW20/J and copy of Acknowledgment of FSL has been proved on record as Ex.PW20/K;
(h) On 31.05.2016 and 03.08.2016, expert opinion with sealed parcels were received in PS and endorsement to this effect made in Register No.19 have been proved on record as Ex.PW20/L and Ex.PW20/M respectively.
U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 26 of 53SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 He further stated that till the time the aforesaid exhibits remained in his custody, same were not tampered with.
In his cross-examination by learned defence counsel, this witness admitted that he had not obtained the signature of depositor in Register No.19. He, however, categorically denied the suggestion that the sealed parcels were tampered with while being in his custody or in the custody of constables who took the same to FSL.
33. PW-24, Constable Anil Kumar in his evidence stated that on 07.08.2015, he had taken two sealed parcles containing exhibits of the case, another sealed parcel containing postmortem report to FSL, Rohini vide Road Certificate (RC) No.97/21/15 (Ex.PW20/F) and after deposition of the said articles with FSL, Rohini handed over the Acknowledgement (Ex.PW20/H) to MHC(M). He further stated that till the time the sealed parcels remained under his custody, same were not tampered with.
Despite according opportunity, this witness was not cross-examined on behalf of defence.
34. This is all as far as prosecution evidence in the matter is concerned. Thereafter, the statement of both the accused persons i.e Satender Sharma (brother- in-law/"saadhu" of deceased) and Smt.Shanti Sharma (wife of deceased) under Section 313 Cr.P.C was recorded, wherein both claimed themselves to be innocent and having been falsely implicated in the case. Accused Satender Sharma took a categorical plea that he has been falsely implicated in the matter on account of his enmity with Smt.Rekha Sharma/PW-8 (sister-in-law/"Bhabhi" of deceased) as he had refused to make her his business partner in the business of preparing plastic dubbi on moulding machine. Similarly, accused Shanti Sharma while taking the U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 27 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 plea of false implication stated that accused Satender Sharma used to reside at the first floor of her house and Smt.Rekha Sharma/PW-8 was against it, as he/Satender Sharma had refused to make Smt.Rekha Sharma his business partner. She further took a categorical defence that her husband Dilip Sharma (deceased herein) had slipped from the stairs on the day of incident as he was heavily drunk. She categorically stated that deceased was a habitual drunkard.
Arguments advanced at bar
35. While opening the arguments, the learned Additional PP for the State has very vehemently argued that even though two elder brothers of deceased namely Shri Vinod/PW-2 and Shri Rakesh/PW-3 have turned "hostile" and not supported the case of prosecution; however, that is not at all fatal to the prosecution case especially in the teeth of overwhelming and credible evidence given by PW- 8/Smt.Rekha Sharma, who admittedly is also a family member of deceased, being sister-in-law/"Bhabhi" of deceased. He has strenuously argued that from the evidence of PW-8/Smt.Rekha Sharma (who is "real bhabhi of deceased") it is crystal clear that she had seen both the accused persons in a "compromising position" (accused Satender Sharma sitting and accused Smt.Shant Sharma lying under one bedsheet on a single bed) just one month prior to the date of incident in question when she suddenly happened to visit the home of deceased. She had even scolded and slapped accused Satender Sharma on the said day. This clearly signifies that both the accused persons were in illicit relationship much prior to the date of incident. In order to put more weight to his aforesaid contention, the learned Additional PP also very heavily relied upon the evidence of PW-23/SI Inderveer Singh and PW-26, Inspector Mahavir Singh, who categorically stated in unison that during the course of investigation conducted by them in the matter, it clearly came to fore that both the accused persons were having illicit relations between them. He U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 28 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 has further argued that from the evidence of PW-8/Smt.Shanti Sharma it is further clear that accused Satender Sharma had been running his business of manufacturing "plastic dibbi" from the first floor of the house belonging to deceased. It is argued that accused Satender Sharma was doing so with a purpose and that purpose was just to continue and maintain his illicit relationship with co-accused Smt.Shanti Sharma, as he very well knew that deceased was a habitual drunkard, who most of the times did not remain in his senses and thus, it would be very easy from him and his sister- in-law/"saali", i.e, co-accused Smt.Shanti Sharma to smoothly maintain their illicit relationship without any hindrance, whatsoever. In order to further buttress his argument that accused Satender Sharma had been carrying on his business of manufacturing "plastic dibbi" from the first floor of the house belonging to deceased, the learned Additional PP has taken me through the evidence of PW- 6/Master Gautam (son of deceased), who at the time of recording of his evidence in the Court was merely aged about eleven (11) years. He has taken me through the cross-examination (conducted by learned Additional PP) of PW-6/Master Gautam, wherein this witness categorically stated that his uncle (accused Satender herein) used to manufacture plastic box to fill "chunna" at the first floor of their house. The learned Additional PP has further taken me through the statement of accused Smt.Sharma recorded under Section 313 Cr.P.C, wherein she has categorically stated in reply to Question No.69 that co-accused Satender Sharma was residing at the first floor of the same house, i.e the house of deceased.
36. As regards both the accused persons entering into a conspiracy and committing the murder of deceased, the learned Additional PP has very fairly conceded that though there is no direct evidence available on record in this regard, however, he very emphatically submitted that there is enough "circumstantial evidence" to connect both the accused persons with the offence charged in the U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 29 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 matter. He has argued that there are number of circumstances which are definite and of conclusive nature & tendency to prove the case of prosecution beyond reasonable shadow of doubt. These "circumstances" may be extracted thus:
Circumstance No.(i) Deceased being a "habitual drunkard"
It was argued that admittedly it is not in dispute that deceased was a habitual drunkard, who most of the times did not remain in his senses and his poor physical condition acted as a catalyst for maintenance of "illicit relations" between both the accused persons.
Circumstance No.(ii) "Illicit relations" between both the accused persons It was argued that from the evidence of PW-8/Smt.Shanti Sharma (who is real Bhabhi of deceased), it is clearly apparent that both the accused persons had been in "illicit relationship" with each other. Even during the course of investigation conducted by PW-23/SI Inderveer Singh and PW-26/Inspector Mahavir Singh, it came to fore that both the accused persons were having "illicit relations"
with each other.
Circumstance No.(iii) Accused Satender doing his work/business from the first floor of the residence of deceased It was argued that from the evidence of PW-8/Smt.Shanti Sharma (Bhabhi of deceased) and PW-6/Master Gautam (son of deceased) the prosecution has been successful in establishing on record that accused Satender Sharma was doing his work/business of manufacturing "plastic dibbi"
from the first floor of the residence of deceased. Even accused Smt.Shanti Sharma herself admitted in her statement recorded under Section 313 Cr.P.C that co- accused Satender Sharma had been residing at the first floor of her house.
Circumstance No.(iv) Postmortem report of deceased + investigation carried out in the matter + recovery of articles at the instance of accused persons + report of serologist (Ex.PW26/A) U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 30 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 It was argued that admittedly the deceased did not die a natural death. He was also not suffering from any fatal disease/ailment. Thus, it is clearly apparent that he died a sudden and unnatural death, i.e he was murdered/killed, which factum is firmly established from a bare perusal of postmortem report Ex.PW13/A, wherein the cause of death of deceased by PW-13/Dr.Priyal Jain has been opined as "asphyxia as a result of antemortem compression of neck". Injury No.1 is said to be sufficient to cause death in ordinary course of nature and produced by blunt force impact. Injury No.11 is said to be produced by single sharp-edged weapon. All other injuries are produced by blunt force impact."
It has been further argued that the findings of PM Report (Ex.PW13/A) has gone unrebutted, i.e the same has not been challenged/disputed at any stage by the defence, which is apparent from the fact that PW-13 was not cross-
examined in the matter.
It has been further argued that even from the perusal of photographs Ex.PW1/A1 to Ex.PW1/A15 (which were taken by the crime team at SOC on the date of incident), it is clearly apparent that the face and neck of deceased were found smeared with blood when the police had first reached at SOC, which clearly gives an indication that it was not a natural death and instead points out that the deceased was murdered.
He has further argued that clothes (saree, blouse and petticoat) worn by accused Shanti Sharma at the time of incident Ex.P1 (colly); pillow cover Ex.P2; "belan"
Ex.P3; steel spoon Ex.P4; mortein tikki (rat kill) Ex.P5; T-shirt Ex.P5, pant Ex.P6 and "Angochha" Ex.P7 ; all the aforesaid articles were recovered by the investigating agency at the instance of accused persons. He has further argued that as per the Serologist's report (Ex.PW26/B), the pillow cover (Ex.P2); T-shirt (Ex.P5) and most importantly the "Angochha" (Ex.P7) (which was recovered at the instance of accused Satender Sharma U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 31 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 from his house situated at his native village Davihari, District Badayun, UP); same were found having blood stains of "A Group", meaning thereby that the same were used by the accused persons while murdering the deceased.
37. Last but not the least, the most important circumstance on which lot of stress was laid by learned Additional PP to substantiate his claim that deceased was murdered by both the co-accused persons pursuant to a well-planned conspiracy is:
Circumstance No.(v) Deceased having been found dead within the precincts of his secured house It was argued that admittedly the deceased was found dead within the secured boundary walls of his house. There was no evidence of theft or house-breaking in the said house and even no such defence has been taken by the accused persons. The suicide theory is also ruled out on account of the nature of injury marks found on the dead body of deceased vis-à-vis the cause of death opined in the postmortem report Ex.PW13/A. It was argued that the death of deceased occurred within the precincts of his secured house, wherein admittedly on the ground floor deceased was residing alongwith his wife Smt.Shanti Sharma (accused herein) and his three children and on the first floor thereof co-accused Satender Sharma was carrying on his business of manufacturing "plastic dibbis"
for filling chuna.
It was argued that the incident in question had taken place within the privacy of the house of deceased and thus, the onus was on the person(s) residing in the said house, i.e accused Smt.Shanti Sharma and co-accused Satender Sharma to give a cogent explanation with regard to the sudden, unnatural and untimely death of deceased, which admittedly they have failed to do so.U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 32 of 53
SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 It was argued that the defence taken by the accused persons that deceased died pursuant to fall from the staircase is merely a hollow defence which vanishes in thin air in the teeth of cause of death opined vide postmortem report Ex.PW13/A.
38. On the other hand, the learned defence counsel Shri Abdul Sattar Gazi, Advocate has very vehemently argued that there is neither any direct evidence nor any circumstantial evidence to establish the involvement of accused persons in the commission of alleged crime. It is submitted that with regard to the happening of alleged incident, there is no interse corroboration of the same from the immediate family members of the deceased and in fact the star witnesses of prosecution namely PW-2/Vinod and PW-3/Rakesh (both elder brothers of deceased) and PW-6/Master Gautam (son of deceased) have turned "hostile" and did not utter a single word against both the accused persons. It is argued that even in their exhaustive cross- examination by learned Additional PP none of them uttered a single incriminating word against both the accused persons, which could even remotely suggest existence of any "illicit relationship" between the accused persons or that accused Satender Sharma had been carrying out his business of manufacturing "plastic dibbi" from the first floor of the house of deceased or that they had entered into any conspiracy and resultantly murdered/killed the deceased. The arguments advanced by him are outlined as under:
(a) Theory of "illicit relationship" between accused persons mere figment of imagination of investigating agency/prosecution:
It is argued that PW-2/Shri Vinod and PW-3/Shri Rakesh, who both are immediately family members of deceased, being his elder brothers and putting up in the vicinity of the residence of their deceased brother, have categorically denied U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 33 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 existence of any illicit relationship between both the accused persons. It is argued that PW-2 and PW-3 are the primary witnesses and immediate family members of deceased (being his real elder brothers) and only they could have told the investigating agency/IO(s) about the factum of alleged illicit relations between the accused persons. When these two witnesses have categorically denied the said factum, then it does not lie in the mouth of investigating agency/IO(s) to blow the trumpet of alleged "illicit relations" as the IO(s) could have known about the alleged factum only from the aforesaid two witnesses and when these witnesses have categorically denied the said factum, then it can be safely said that the alleged theory of "illicit relationship" between the accused persons is nothing but merely a figment of imagination created by the investigating agency/prosecution in an unholy zeal to secure their conviction. It is argued that prosecution should not be allowed to go on character assassination spree of the accused persons.
(b) Accused Satender Sharma never resided at the house of deceased:
It is argued that from the evidence of PW-2 and PW-3 (who both are real brothers of deceased) it is clearly apparent that accused Satender Sharma neither resided at the first floor residence of the deceased at any point of time nor he ever carried out any business therefrom and that is the reason police/investigating agency has not been able to recover any rent agreement in this regard.
(c) Cause of death of deceased not clear:
It is argued that the cause of death of deceased is not getting clearly established from the postmortem report Ex.PW13/A. In this regard, the learned defence counsel has placed reliance upon judgment reported as, "AIR 1993 SC 300", titled as, "Bhupendra Nath Prasad V/s State of Bihar". He has argued that it is an admitted position on record that deceased was a "habitual drunkard". He U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 34 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 was heavily drunk on the date of alleged incident and thus the possibility of his falling from the staircase cannot be ruled out. He has further argued that accused Smt.Shanti had repeatedly told the IO during the course of investigation that deceased had died after falling from the stairs, as he was heavily drunk on the date of alleged incident, but the IO did not pay any heed to her repeated requests and for the reasons best known to him did not conduct any investigation on this important aspect. Even from the nature of injuries mentioned in the postmortem report (Ex.PW13/A), it cannot be ruled out that the deceased in the course of falling from the staircase might have sustained some fatal injuries and that is why blood was found on his face and neck.
(d) PW-8/Smt.Rekha Sharma inimically disposed off:
It is argued that the evidence of PW-8/Smt.Rekha Sharma (who is bhabhi of deceased) cannot be relied upon in the matter for two epochal reasons. Firstly, this witness was inimically disposed off towards accused Satender Sharma on account of his categorical refusal to make her his business partner in the business of manufacturing "plastic dibbis" for chunna filling and the said factum is apparent from the perusal of defence taken by accused Satender Sharma while recording of his statement under Section 313 Cr.P.C. It is argued that even if for a moment it is believed that she had seen both the accused persons in a "compromising position"
just one month prior to the date of incident, then what stopped her from making a police complaint in this regard? Not making any police complaint in this regard totally falsifies her alleged claim and thus her evidence in this regard is of no consequences for the prosecution. The second ground of attack against the veracity of PW-8 is that admittedly there is no corroboration of her alleged claims from any other family member(s) of deceased. It is argued that the prosecution examined as many as four immediate family members of deceased, out of which three family U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 35 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 members, i.e. PW-2/Vinod, PW-3/Rakesh (both elder brothers of deceased); PW- 6/Master Gautam (son of deceased) have not alleged anything incriminatory against the accused persons. Even the neighbour of deceased, i.e PW-5/Nirmal Kumar has not alleged anything incriminatory against the accused persons. It is only PW- 8/Smt.Rekha Sharma, who has taken a different line altogether. It is argued that when all the public witnesses (except PW-8) examined in the matter have not alleged anything incriminatory against the accused persons, then the accused persons cannot be convicted in the matter merely on the sole uncorroborated testimony of PW-8 which is not free from all blemish, especially taking into account her inimical disposition towards accused Satender Singh.
(e) Alleged recovery not effected in presence of independent public witnesses:
Under this head, it is argued that that the alleged recovery(ies) of clothes (saree, blouse and petticoat) Ex.P1 (colly); pillow cover Ex.P2; "belan" Ex.P3; steel spoon Ex.P4; mortein tikki (rat kill) Ex.P5; T-shirt Ex.P5, pant Ex.P6 and "Angochha" Ex.P7 have all been effected from the accused persons in broad daylight and from open space. The police could have easily joined independent public person(s) to lend credence to the alleged recovery(ies), which admittedly has not been done in this case. Moresoever, there is nothing on record to even remotely suggest that IO gave notice to any public person, who refused to join investigation qua the alleged recovery(ies). This casts a strong doubt upon the recovery of alleged articles at the instance of accused persons, the benefit whereof should be accorded to them. It is further argued that no departure or arrival memo/entries were made by IO/SI Inderveer Singh (PW-23) at local police station of Badayun District within whose jurisdiction alleged recovery of Ex.P5, Ex.P6 and Ex.P7 have been effected at the instance of accused Satender Sharma, which casts a strong doubt that the aforesaid alleged recoveries have been "planted" upon him.U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 36 of 53
SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020
39. As regards the circumstantial evidence pointed by the learned Additional PP (as detailed in tabulated form hereinabove), it is argued that it is settled law that the circumstance(s) so pointed out must have some proximate relation to the actual occurrence and must be of the transaction which resulted in the death of deceased, i.e circumstance(s) should be of a conclusive nature and tendency such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. It is contended that the circumstance(s) so pointed out by the learned Additional PP are not of conclusive nature and are merely his figment of imagination which do not complete the chain of evidence beyond reasonable doubt and as such, both the accused persons are entitled for acquittal in the matter.
40. In the end, the learned defence counsel has drawn my attention to affidavits (duly notarized) of four persons lying on record. The names of the said persons are:
(i) Shri Om Prakash, S/o Late Shri Ashrafi (father of accused Satender Sharma and resident of village Davihari, District Badayun, UP);
(ii) Shri Sriprakash, S/o Late Shri Ashrafi (uncle/chacha of accused Satender Sharma and resident of village Davihari, District Badayun, UP);
(iii) Shri Ravinder Pal, S/o Shri Nathu Lal (brother-in-law/jeeja of accused Satender Sharma and resident of District Badayun, UP) and;
(iv) Shri Jai Kumar, S/o Late Shri Shyam Singh (neighbour of accused Satender Sharma and resident of village Davihari, District Badayun, UP).U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 37 of 53
SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 (Court Observation: It is noticed that the affidavits of all the aforesaid four persons are dated 17.09.2015 and have been carved out on a non-judicial stamp paper of Rs.10/- each and the said affidavits appear to have been notarized at Patiala House Courts, Delhi).
41. The learned defence counsel has very vehemently argued that by way of aforesaid affidavits, the aforesaid four persons made a categorical request to the Court for carrying out impartial and fair investigation as accused Satender Sharma has been falsely implicated in the matter because on the date of alleged incident, i.e on 25.05.2015 he was present in his native village Davihari, District Badayun, Uttar Pradesh.
Legal position and conclusion
42. I have given my thoughtful consideration to the arguments advanced at bar and carefully gone through the entire material on record, including the evidence recorded in the matter.
43. Admittedly, the present case is entirely based on circumstantial evidence. At the outset, it would be very relevant to note here that the nature, character and essential proof required in a criminal case which rests on circumstantial evidence has been well settled in a catena of judgments. I may, however, notice here the oft quoted passage from the decision of the Hon'ble Supreme Court rendered in case of "Hanumant V/s State of Madhya Pradesh", IAR 1952 SC 343 that:-
xxxxx It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused.U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 38 of 53
SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 Again, the circumstances should be of a conclusive nature and tendency and they should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
xxxxx
44. It would also be useful to note down the five golden principles constituting the "Panchsheel" on appreciation of a case based on circumstantial evidence as laid down by the Hon'ble Supreme Court in case reported as, "AIR 1984 SC 1622", titled as, "Sharad Birdichand Sarda V/s State of Maharashtra", as follows:
(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established;
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) The circumstances should be of a conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to be proved, and;
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
45. Now, let us take the blow-by-blow account of the contentions raised by the learned defence counsel.
U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 39 of 53SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 PW-2/Shri Vinod, PW-3/Shri Rakesh and PW-6/Master Gautam turning hostile + evidence of PW-8/Smt.Rekha Sharma not believable on account of she being inimically disposed off towards accused Satender Sharma
46. Both these contentions of the defence are being taken up together as the same are inter-connected and the findings thereupon is somewhat common. Though, it is a matter of record that PW-2/Shri Vinod and PW-3/Shri Rakesh, who both are real elder brothers of deceased have turned hostile and not supported the case of prosecution. Even PW-6/Master Gautam (son of deceased), who was aged about 11 years when he hit the witness box was also declared hostile by the prosecution. However, his evidence is on a different pedestal, as this witness during his cross-examination by learned Additional PP categorically admitted that his uncle (accused Satender herein) used to manufacture plastic box used till "chunna" at the first floor of their house. The said part of his evidence in verbatim is re-produced hereunder:
xxxxx It is correct that my uncle used to manufacture plastic box used to fill chunna at first floor at my house.
xxxxx
47. The law relating to evidentiary value of hostile witness is no longer res- integra. It is the settled position that the testimony of hostile witnesses cannot be rejected enblock and Court can consider evidence of hostile witness to corroborate other evidence on record. It is also clearly well settled that mere fact that a witness is declared hostile does not make him unreliable witness so as to exclude his evidence from consideration altogether but the said evidence remains admissible in the trial and there is no legal bar to base conviction or acquittal upon testimony of hostile witness if corroborated by other reliable evidence. Hon' ble Supreme Court U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 40 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 in case reported as, "(2016) 10 SCC 506", titled as, "Raja & Others V/s State of Karnataka", has been pleased to hold as under:
xxxxx
32. That the evidence of a hostile witness in all eventualities ought not stand effaced altogether and that the same can be accepted to the extent found dependable on a careful scrutiny was reiterated by this Court in Himanshu @ Chintu (supra) by drawing sustenance of the proposition amongst others from Khujii V/s State of M.P. (1991) 3 SCC 627 and Koli Lakhman Bhai Chanabhai V/s State of Gujarat (1999) 8 SCC 624.
xxxxx
48. If the said evidence of PW-6/Master Gautam is in read in juxtaposition with the evidence of PW-8/Smt.Rekha Sharma, then one important circumstance which is getting clearly established is that accused Satender Sharma had been carrying out his business of manufacturing "plastic dibbi" from the house of deceased prior to and during the year 2015 when the deceased was found dead within the secured boundary walls of his house.
49. As regards the contention of learned defence counsel that evidence of PW-8/Smt.Rekha Sharma cannot be relied upon because she was inimically disposed off towards accused Satender Sharma since he had refused her to make his business partner, it is noted that except for making bald assertion to this effect no cogent material has been placed on record by the defence to substantiate its aforesaid contention. Even for the sake of arguments if it is believed that PW- 8/Smt.Rekha Sharma was inimically disposed off towards accused Satender Sharma, then also the defence has not been able to accord any plausible explanation as to why this witness has also deposed against co-accused Smt.Shanti Sharma, who admittedly is her real devrani. The defence has nowhere alleged that accused Smt.Shanti Sharma was in inimical terms with PW-8/Smt.Rekha Sharma. So, I do not find any substance in the contentions of learned learned defence counsel on this U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 41 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 count. PW-8/Smt.Rekha Sharma in her evidence has categorically stated about accused Satender Sharma running his business of manufacturing "plastic dibbi"
from the first floor of the house of deceased in the year 2015 and she having seen both the accused persons in "compromising position" one month prior to the date of incident and thereafter she reprimanding, scolding and slapping accused Satender Sharma. In the absence of any cogent material having been produced on record by the defence, the evidence of PW-8/Smt.Rekha Sharma cannot be discarded on the mere bald allegation of defence that she was inimically disposed off towards accused Satender Sharma.
50. Coming to the second leg of argument qua PW-8/Smt.Rekha Sharma, i.e it is highly unsafe to base conviction of accused persons in the matter on the sole uncorroborated testimony of PW-8. It is noted that Section 134 of the Indian Evidence Act has categorically laid it down that "no particular number of witnesses shall in any case be required for the proof of any fact". If such a sole testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person(s) on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. I am fortified in my aforesaid view by the judgment reported as, "1957 SCR 981", titled as, "Vadivelu Thevar V/s The State of Madras", wherein the Hon'ble Supreme Court has been pleased to hold as under:
xxxxx On a consideration of the relevant authorities and the provisions of the Indian Evidence Act, the following propositions may be safely stated as firmly established:U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 42 of 53
SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 (1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. (2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.
(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes. In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated.
xxxxx
51. The bald contention that no conviction can be recorded in case of a solitary witness, therefore, has no force and must be negatived. It is relevant to note here that our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. In view of the detailed discussion aforesaid, I do not find any substance in the arguments of learned defence counsel on this count.
Recoveries of seized articles not effected in presence of public witness(es)
52. The other contention raised by the learned defence counsel was that the alleged recovery(ies) of clothes (saree, blouse and petticoat) Ex.P1 (colly); pillow cover Ex.P2; "belan" Ex.P3; steel spoon Ex.P4; mortein tikki (rat kill) Ex.P5; T-
U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 43 of 53SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 shirt Ex.P5, pant Ex.P6 and "Angochha" Ex.P7 have all been effected from the accused persons in broad daylight and from open space and the police could have easily joined any public person to lend credence to the alleged recovery(ies), which admittedly has not been done in this case and thus, the same cast a strong doubt upon the recovery of alleged articles at the instance of accused persons, the benefit whereof should be accorded to them. In this regard, it is relevant to note here that public witnesses generally hesitate to participate in police proceedings on account of the legal quibbling involved thereafter. Non-joining of public witness(es) while effecting recovery from the accused persons can be said to be a part of defective investigation, but that is not so glaring enough to straightway throw the entire prosecution case out of the window. It is well settled legal proposition that the accused cannot avail benefits of a defective investigation. The Hon'ble Apex Court in the case of Allarakha K. Mansuri vs. State of Gujarat, (reported in AIR 2002 SC 1051), while dealing with a case of defective and faulty investigation, and duty of the Court in such kind of cases held as under:
xxxxx "........Even if the investigation is defective and faulty the accused person cannot be acquitted solely on account of defective and faulty investigation. With the passage of time, the law also developed and the dictum of the Court emphasized that in a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. Crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the society in general."
xxxxx
53. In another case of "Ram Bali V/s State of Uttar Pradesh" (reported in AIR 2004 SC 2329"), the Hon'ble Apex Court took a view that acquitting an accused person solely because of faulty or defective investigation would amount to playing into the hands of Investigating Officer. The relevant paragraph of the said U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 44 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 judgment is reproduced hereunder:-
xxxxx "In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective."
xxxx
54. In the case in hand, it has nowhere been the stand of defence that the aforesaid articles were not at all recovered at any point of time from the respective houses of both the accused persons. Thus, I do not find any force in the contention of learned defence counsel on this account.
Cause of death of deceased not clear
55. Dealing with the next contention raised by the learned defence counsel that cause of death of deceased is not getting clearly established from the postmortem report Ex.PW13/A. It is argued that even from the nature of injuries mentioned in the postmortem report (Ex.PW13/A), it cannot be ruled out that the deceased in the course of falling from the staircase might have sustained some fatal injuries and that is why his face and neck were found smeared with blood stains.
56. In support of his aforesaid contention, the learned defence counsel has placed heavy reliance upon judgment reported as, "AIR 1993 SC 300", titled as, "Bhupendra Nath Prasad V/s State of Bihar". He has argued that it is an admitted position on record that deceased was a "habitual drunkard". As such, he was heavily drunk on the date of alleged incident and thus the possibility of his falling from the staircase cannot be ruled out. He has further argued that accused Smt.Shanti Sharma had repeatedly told the IO during the course of investigation that U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 45 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 deceased had died after falling from the stairs, as he was heavily drunk on the date of alleged incident, but the IO for the reasons best known to him did not conduct any investigation on this important aspect.
57. I am afraid, the said argument is not available to the defence particularly in the teeth of fact that PW-13/Dr.Priyal Jain (who had conducted postmortem upon the dead body of deceased and prepared PM report Ex.PW13/A) was never cross-examined by the defence on this count. It was all the more onerous upon the accused persons to have put their defence to this witness to take refuge under the said argument, which admittedly had not been done by them. So, the aforesaid contention of the learned defence counsel also does not hold any water.
58. I have gone through the judgment of Bhupendra Nath Prasad (supra). The facts of the said judgment were totally different/ distinct from the case in hand. The case of Bhupendra Nath Prasad (supra) was based on dying declaration, whereas in the case in hand there is no dying declaration. As such, the said judgment is of no help to the defence, as the same is not applicable considering the peculiar facts and circumstances of the case in hand.
Affidavits of four persons
59. It is noted that following four persons have filed their affidavits (duly notarized) in the matter:
(i) Shri Om Prakash, S/o Late Shri Ashrafi (father of accused Satender Sharma and resident of village Davihari, District Badayun, UP);
(ii) Shri Sriprakash, S/o Late Shri Ashrafi (uncle/chacha of accused Satender Sharma and resident of village Davihari, District Badayun, UP);U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 46 of 53
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(iii) Shri Ravinder Pal, S/o Shri Nathu Lal (brother-in-law/jeeja of accused Satender Sharma and resident of District Badayun, UP) and;
(iv) Shri Jai Kumar, S/o Late Shri Shyam Singh (neighbour of accused Satender Sharma and resident of village Davihari, District Badayun, UP).
60. A perusal of the said affidavits (which all are dated 17.09.2015) reveals that all the aforesaid persons have categorically stated therein that accused Satender Sharma has been falsely implicated in the matter by the investigating agency as on 25.05.2015, he was present in his native village, i.e village Davihari, District Badayun, Uttar Pradesh.
61. Even the affidavits of aforesaid four persons by way of which they have taken up cudgels for accused Satender Sharma is no help to him. It is apparent that the said affidavits were filed on record in the year 2015 and the statement of accused Satender Sharma (under Section 313 Cr.P.C) was recorded in the matter on 04.05.2019 (i.e, almost after four years of the filing of said affidavits on record). During recording of his statement under Section 313 Cr.P.C, when accused Satender Sharma was asked whether he would like to examine any witness in his defence, he categorically replied in negative. Nobody had stopped accused Satender Sharma from calling the aforesaid four persons (whose alleged affidavits have been filed on record) in the witness box in his defence. Therefore, the affidavits of aforesaid four persons went for a toss the moment accused Satender Sharma refused to lead any DE in the matter. As such, the affidavits of aforesaid four persons are of no consequences for accused Satender Sharma, except for making the record bulky.
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62. Now let us see whether the circumstances pointed out by the learned Additional PP duly satisfy the aforesaid "golden principles" laid down by the Hon'ble Supreme Court of India in the case of Sharad Birdichand Sarda (supra) or not.
Circumstance(s) pleaded by prosecution Finding of the Court Circumstance No.(i) It is an admitted position on record that deceased was a "habitual drunkard", Deceased being "habitual drunkard". who most of the times did not remain in his senses.
Circumstance No.(ii) The defence has not been able to give "Illicit relations" between both the any cogent and plausible explanation as accused persons.
to why the evidence of PW-8/Smt.Rekha Sharma should not be believed. The statement of PW-8 is reliable, free from all taints and inspires confidence. The testimony of PW-8 as a whole is found to be natural and creditworthy. From her unblemished evidence, it is quite clear there existed "illicit relations" between both the accused persons.
Circumstance No.(iii) As discussed in preceding paragraphs, Accused Satender doing his from the conjoint reading of the evidence work/business from the first floor of the tendered by PW-6/Master Gautam (son residence of deceased of deceased) and PW-8/Smt.Rekha Sharma (Bhabhi of deceased), it is quite clear that accused Satender Sharma had been carrying out his business of manufacturing "plastic dibbi" from the first floor residence of the deceased.
Even the specific reply of accused Smt.Shanti Sharma to Question No.69 during recording of her statement under Section 313 Cr.P.C stamps this fact.
U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 48 of 53SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 Circumstance No.(iv) From the postmortem report Postmortem report of deceased (Ex.PW13/A) of deceased, it is clearly (Ex.PW13/A) + investigation carried out apparent that he did not die a natural in the matter + recovery of articles at the death. The cause of death has been instance of accused persons + report of clearly and categorically enumerated in serologist (Ex.PW26/B) the said report. The defence has not been able to impeach the findings made out qua the cause of death of deceased, as enumerated in Ex.PW13/A. As discussed in preceding paragraphs, the investigation carried out in the matter also points towards inculpation of accused persons.
Though it is an admitted position on record that the recovery of articles at the instance of accused persons have not been effected in presence of independent public witnesses, but as discussed earlier, that cannot be the basis to straightway throw out the case of prosecution from window. Even the learned defence counsel has not disputed the factum of recovery of seized articles from the accused persons, instead he has only put question marks upon the process adopted by the investigating agency while effecting such recovery and the said contention of learned counsel has been suitably dealt with in detail in the preceding paragraph(s).
Even the report of Serologist (Ex.PW26/B) is against the accused persons, because as per the Serologist's report blood stains (Group "A") were found on pillow cover (Ex.P2); T-shirt (Ex.P5) and most importantly the U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 49 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 "Angochha" (Ex.P7) (which was recovered at the instance of accused Satender Sharma from his house situated at his native village Davihari, District Badayun, UP).
The defence has not been able to give any explanation, what to talk of plausible explanation, as to how the said blood stains came on the aforesaid exhibits.
63. Now, coming to the last, but the most important circumstance, i.e Circumstance No.(v), which has the capacity to nail the issue in the matter.
Circumstance No.(v) Deceased having been found dead within the precincts of his secured house.
Admittedly the deceased was found dead within the secured boundary walls of his house. There was no evidence of theft or house-breaking in the said house, even no such defence has been pleaded by the accused persons. The suicide theory is also ruled out on account of the nature of injury marks found on the dead body of deceased vis-à-vis the cause of death opined in the postmortem report Ex.PW13/A.
64. It is clearly evident from the record that just prior to his unnatural, untimely and unexpected death, deceased had been residing within the secured boundary walls of his house (at the ground floor) alongwith his wife (accused Smt.Shanti Sharma herein) and their three children. Furthermore, as per the evidence of PW-8/Smt.Rekha Sharma and PW-3/Master Gautam (son of deceased), it is clearly apparent that accused Satender Sharma was carrying out his business of manufacturing "plastic dibbi" for filling chunna from the first floor of the house of U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 50 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 deceased during and prior to 3-4 years of the date of incident. When the unnatural, untimely and unexpected death of deceased had taken place within the privacy of his house, then it was all the more obligatory on the part of the person(s) residing in the said house, i.e accused Smt.Shanti Sharma (wife of deceased) and co-accused Satender Sharma (who was carrying out his business of manufacturing "plastic dibbi" from the first floor of said house) to give a cogent and plausible explanation qua the death of deceased, which admittedly they have miserably failed to do so. So, it was natural for the needle of suspicion to turn its head towards them. In case of somewhat similar nature, i.e, Criminal Appeal No.590/2015, titled as, "Jayantilal Verma V/s State of MP (Now Chattisgarh)" (date of decision 19.11.2020), the Hon'ble Supreme Court has been pleased to observe as under:
xxxxx
24. In our view, the most important aspect is where the death was caused and the body found. It was in the precincts of the house of the appellant herein where there were only family members staying. The High Court also found that the location of the house and the surrounding buildings was such that there was no possibility of somebody from outside coming and strangulating the deceased and that too without any commotion being caused or any valuable/jewellery missing.
25. We are confronted with a factual situation where the appellant herein, as a husband is alleged to have caused the death of his wife by strangulation. The fact that the family members were in the home some time before is also quite obvious. No explanation has been given as to how the wife could have received the injuries. This is a strong circumstance indicating that he is responsible for commission of the crime.6 The appellant herein was under an obligation to give a plausible explanation regarding the cause of the death in the statement recorded under Section 313 of the Cr.P.C. and mere denial could not be the answer in such a situation.
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65. The bald assertion made by accused Smt.Shanti Sharma (wife of deceased) that deceased died as a result of his slipping/fall from the staircase in a drunken state is totally obverse to the findings of postmortem report (Ex.PW13/A). The findings of postmortem report (Ex.PW13/A) have gone unrebutted and unchallenged, as PW-13/Dr.Priyal Jain was not cross-examined by the learned defence counsel. Merely by asserting that deceased died while falling from the staircase would not suffice. The accused persons were under an obligation to give a plausible explanation regarding the cause of death in their statements recorded under Section 313 Cr.P.C and a mere denial could not be the answer in such a situation. Even no evidence to substantiate their aforesaid bleak claims has been brought on record by the accused persons.
66. Without further ado, I would like to state here that it is well known principle that circumstantial evidence are secondary evidence. Circumstantial evidence might not directly prove any offence, but to draw guilt of an accused, an entire chain of circumstances has to fall in place. From a review of the circumstances discussed hereinabove, I am of the considered opinion that the circumstance No.(v) that deceased was found dead within the secured precincts of his house raises an irresistible inference that deceased was murdered by the accused persons in a pre-planned conspiracy. Even the other four circumstances pointed out by the learned Additional PP are strong enough circumstances indicating towards guilt of both the accused persons. The five golden principles enunciated by Hon'ble Supreme Court of India in case of Sharad Birdichand Sarda (supra) are duly getting satisfied in the instant case. As a logical corollary, it follows that the act of accused persons cannot be explained on any other hypothesis except their guilt. In other words, the prosecution has been successful in filling the essential requirements of a criminal case which rests purely on circumstantial evidence. As such, I have no U/s 302/201/120-B/34 IPC: Both accused persons "Convicted" Page 52 of 53 SC No.45031/2015: FIR No.568/2015: PS New Usmanpur: State V/s Satender Sharma & Anr. DOD: 02.12.2020 hesitation in holding that the prosecution has been successful in bringing home the guilt of both the accused persons beyond reasonable shadow of doubt. Both the accused persons, i.e (i) accused Satender Sharma and (ii) accused Smt.Shanti Sharma are hereby convicted for offence(s) punishable under Section 302/201/120- B/34 IPC. Let they be heard on the quantum of sentence on ________________.
67. A copy of this judgment be given free of cost to both the convicts forthwith.
VINOD Digitally signed
by VINOD YADAV
Announced in the Open Court
on 02.12.2020 YADAV Date: 2020.12.02
10:32:53 +05'30'
(Vinod Yadav)
Addl. Sessions Judge-03 (North-East):
Karkardooma District Courts: New Delhi
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