Delhi District Court
State vs Latif @ Dallu on 21 October, 2013
SC No.02/13
FIR No.212/12
PS: Chhawla
State Vs.Latif @ Dallu
IN THE COURT OF SHRI VIJAY KUMAR DAHIYA
ADDL. SESSIONS JUDGE : DWARKA COURTS:
NEW DELHI
In the matter of :
SC No. : 02/13
FIR No. : 212/12
Police Station : Chhawla
Under Section : 498A/304B/302/201 IPC
Received on assignment : 07/01/13
Reserved for orders on : 21.10.2013
Judgment announced on : 21.10.2013
State Vs. Latif @ Dallu
S/o Sh. Neki Ram
R/o Pole No.34A, Near Dhanko wali
Chaupal, House of Neki Ram
Village Deenpur.
J U D G E M E N T
1. Accused has been sent up trial for the alleged commission of offences punishable u/s 498A/304B/302/201 IPC.
2. The case of the prosecution against the accused is that on 20.09.2012, an information regarding theft was received SC No.02/13 Page 1 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu in police station Chhawla and the same was recorded vide DD No.4A and marked to SI Devender Kumar No. D/4201 for further action and SI Devender Kumar alongwith Const. Balwan No. 2483/SW reached at the spot I.e H. No. 217, near Harizan Chaupal, Deenpur Village and found that goods of house were scattered on the ground and Smt. Shabana, W/o Suresh was found present at the spot and she told SI Devender Kumar that her husband Suresh @ Sunder took the injured Shama and her husband Latif @ Dallu to hospital in an ambulance and the PCR staff present on the spot told SI Devender Kumar that injured had been shifted to RTRM hospital in CATS ambulance and, thereafter, SI Devender Kumar left Const. Balwan on the spot and departed for RTRM hospital and conveyed the facts to SHO Harender Singh and requested for extra staff and crime team on the spot. It is further stated that after getting the information, SHO Harender Singh reached the spot with staff and informed the senior officers, crime team regarding the incident and on reaching in RTRM hospital, SI Devender Kumar found that deceased Shama was admitted brought dead vide MLC No. 4095 dated 20.09.2012 and complainant Suresh @ Sunder and his brother Latif @ Dallu met SI Devender Kumar in RTRM Hospital.
3. It is further alleged that on the request of IO, accused SC No.02/13 Page 2 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu Latif @ Dallu was examined by the doctor vide MLC No. 4096/12 and exhibits were also seized and SI Devender Kumar recorded the following statement of complainant Suresh @ Sunder:
"That he alongwith his family resides at the given address and is doing the job of driver in Sri Ram Public School DLF, Phase III, Gurgaon and his younger brother Latif @ Dallu alongwith his wife and son also resides in the same premises in another room. On 20.09.2012 as routine, he woke up at 5:00 am and his wife Shabana also woke up at the same time. When he was going to the toilet he saw that the room of his brother Latif @ Dallu is closed and he asked his wife to see Dallu as he did not go to collect milk. After saying this he went to toilet then he heard the voice of his wife that Dallu is laying on ground as something has happened to him. He rushed there in hurry and found that the hands and feet of Dallu are tied and a brown colour tape was pasted on his mouth and eyes and goods of almirah were scattered all around. He started removing the tape and asked his wife Shabana to wake up deceased Shama who was in the inner room and Shabana entered in the inner room and called Shama but when Shama did not respond, she pushed her and then saw that a tape was also pasted on her neck and she was motionless. Then she removed the tape from her neck and, in the mean time, onetwo neighbours also reached there.SC No.02/13 Page 3 of 62 SC No.02/13 FIR No.212/12
PS: Chhawla State Vs.Latif @ Dallu He called at 100 and after some time, an ambulance reached there and he took Latif @ Dallu and his wife Shama in ambulance to RTRM hospital where doctor declared Shama as brought dead and whether any article was stolen or not from room he did not know".
4. After recording the statement, SI Devender Kumar prepared a rukka under section 302 IPC and sent it to police station Chhawla through Const. Vinod for registration of case at 8:00 am and made a request to handover the further investigation of this case to other officer and, thereafter, SHO Harender Singh alongwith the complainant Suresh @ Sunder reached the spot and after registering the case, Duty Officer sent the original complaint aloangwith copy of computerized FIR to SHO Harender Singh at the spot and the further investigation of this case was taken up by him. It is further stated that during investigation, scene of crime was got photographed and inspected by the crime team and in the mean time, SI Devender alongwith the accused Latif @ Dallu also reached the spot and handed over the MLC of accused and exhibits seized from the body of accused to SHO Harender Singh and same were seized through seizure memo and, thereafter, the exhibits were seized from the scene of crime. It is further stated that local enquiry SC No.02/13 Page 4 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu was made and family members of deceased Shama were also examined and on finding the marriage under seven years and the death of deceased unnatural, SDM/Najafgarh was informed and according his directions the parents of the deceased were taken to the office of SDM/Najafgarh where their statements were recorded. It is further stated that SHO Harender Singh picked up the son of deceased namely Ayan aged about three years and ten months in his hands and inquired from him in the presence of his maternal grand father (Nana) as to what has happened to his mother and he replied that "Papa ne mami ko tape laga di" and, thereafter, accused Latif @ Dallu was taken in police station and Inspector ATO Sh. Balbeer Singh was directed to go to RTRM hospital for getting conducted the postmortem of the body of deceased but it could not be conducted.
5. It is further stated that during interrogation at length, accused broke down and disclosed the conspiracy hatched by him to eliminate the deceased. During interrogation, he disclosed that he got married with Shama in 2006 and Ruby, the younger sisterinlaw was smart than his wife. He further stated that after six months of his marriage, he started talking with Ruby and used to talk with her on one pretext or other. He loved his younger sisterinlaw Ruby very much and wanted to marry SC No.02/13 Page 5 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu with her and he tried to convince his wife Shama on the pretext that if he married with Ruby then both the sisters can live together but his wife Shama had not agreed with him and she became very angry whenever she heard these words from his mouth. Hence he decided to remove his wife Shama from the way and hatched a conspiracy and murdered his wife. He further stated that on the night of commission of crime, he planned to remove Shama from his way and when she and her son Ayan slept in the inner room, he went there and murdered his wife by smothering her and then he threw the goods out from the almirah and pasted a piece of packing tape in the neck of deceased and kept two pieces of that tape on his bed in his room and went out of his room and tried to throw the remaining tape outside in the gali through window of under construction room but the same was fallen inside that room. He came back and spread chilli powder on his face except his eyes then he pasted the pieces of tape on his mouth and eyes and tied his feet with a chunni and tied his hands to give the colour of robbery to the offence committed by him. He further stated that he could identify the place where he had thrown the remaining tape and could get recovered it. After recording his disclosure statement, the crime team was called in the police station and the accused was taken to his house to recover the remaining part of packing SC No.02/13 Page 6 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu tape from the under construction room where on the pointing out of accused, the remaining part of pasting tape was recovered and the spot was photographed and finger print expert examined the exhibits and developed two chance prints on it and after developing the chance prints, the exhibit was seized through seizure memo and PW's statements were recorded under section 161 Cr.PC and then the accused was brought to police station and others Pws statements were also recorded under section 161 Cr.PC and section 201 IPC was added in this case and all the exhibits were deposited in the malkhana through seizure memos.
6. It is further stated that on 21.09.2012, Inspector/ATO Balbeer Singh got conducted the post mortem in mortuary RTRM hospital of the body of deceased and SHO Harender Singh produced the accused before the Ld. Trial Court to send him in judicial custody and on 24.09.2012, Inspector/ATO Balbeer Singh collected the exhibits from the mortuary of RTRM hospital and handed over the same to SHO Harender Singh and he seized the same through seizure memo and deposited in malkhana and supplementary statement of Balbeer Singh was recorded under section 161 Cr.PC and, thereafter, sections 498A/304 B IPC were added in this case as per the directions of SC No.02/13 Page 7 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu SDM/Najafgarh.
7. It is further stated that CDR of both the SIM which were being used in accused's double SIM mobile instrument, were obtained and one of the SIM I.e 9560081351 was issued in the name of accused himself and another SIM I.e 9873559845 was being used by the deceased and was issued in the name of Yakoob, the brother of deceased. The analysis of call details shows that there is no direct link of Ruby with the accused Latif @ Dallu and she was examined in this case and her statement under section 161 Cr.PC was recorded. It is further stated that all the exhibits seized in this case have been sent to FSL Rohini for expert opinion and viscera of deceased has been sent to CFSL Hydrabad for chemical analysis. Hence chargesheet under section 302/201/304B/498A IPC has been prepared and filed against the accused Latif @ Dallu.
8. After supplying copies to the accused as per law, case was committed to the court of sessions.
9. After due deliberation charge under section 498A/304B/302/201 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
SC No.02/13 Page 8 of 62 SC No.02/13 FIR No.212/12PS: Chhawla State Vs.Latif @ Dallu
10. During the course of trial, prosecution has examined 26 witnesses in all in support of its case namely:
PW1 Suresh
PW2 Shabana
PW3 ASI Attar Singh
PW4 Const. Manish
PW5 ASI Kulbhushan Bisht
PW6 Dr. Satish Chandra Yadav, RTRM Hospital,
Delhi.
PW7 Dr. Rahul Shah, Sr. Resident,
Ophthalmology, RRTM Hospital.
PW8 Sh. Babu Khan
PW9 Dr. Parvinder Singh, Junior Specialist,
Department of Forensic Medicine, RTRM
Hospital, Jaffarpur, New Delhi.
PW10 Sh. Yakub Ali
PW11 Const. Pradeep
PW12 Const. Ravinder Singh
PW13 Sh. Rakesh
PW14 HC Bharat Lal
PW15 WHC Anita
PW15A Const. Dinesh Kumar
PW16 Const. Kamal Singh
SC No.02/13 Page 9 of 62
SC No.02/13
FIR No.212/12
PS: Chhawla
State Vs.Latif @ Dallu
PW17 Krishna Mohan Uppu, District Magistrate,
East Delhi.
PW18 Const. Hardeep Singh
PW19 Inspector Balbir Singh
PW20 SI Devender
PW21 Const. Vinod
PW22 Master Ayan
PW23 Inspector Ravinder Singh
PW24 Ms. Ruby
PW25 Sh. Parshuram Singh, Assistant Director
(Physics), FSL, Rohini, Delhi
PW26 Inspector Harender Singh
11. On completion of prosecution evidence, accused was examined u/s 313 Cr.PC where all the incriminating evidence were put to him and he stated that he is innocent and led evidence in his defence and final arguments were heard.
12. I have gone therefore entire record and carefully considered the matter.
13. Before proceeding further I would like to discuss the evidence led by the prosecution to prove the case.
SC No.02/13 Page 10 of 62 SC No.02/13 FIR No.212/12PS: Chhawla State Vs.Latif @ Dallu
14. PW1 Sh. Suresh is elder brother of accused Latif @ Dallu, who has stated that accused Latif @ Dallu was residing alongwith his wife Smt. Shama and his son Ayan in another/separate room of the same house No. 217, Village Deenpur, Najafgarh and on the day of incident I.e on 20.09.2012 as routine, he woke up at about 5:00 am and his wife Shabana also woke up at the same time as he had to go to the place of his work i.e Shri. Ram Public School, DLF PhIII, Gurgaon, Haryana and while he was going to the toilet, he saw that the gate of the room of his brother Latif @ Dallu was closed and the main door/gate of their house was opened and he asked his wife to see his brother Latif @ Dallu whether he had gone to collect milk or not and after saying it, he went to toilet and when he was in the toilet, his wife called his brother Latif @ Dallu by saying his name, thereupon, his brother replied her about his presence in the room and when his brother Latif @ Dallu did not open the door of the room, it was knocked by his wife but no response was given to her by his brother nor his wife, thereupon his wife opened the door by pushing and she raised alarm by saying "Jaldi aao, jaldi aao" and on hearing the noise/alarm of his wife, he came out from the toilet and entered the room of his brother Latif @ Dallu where he found that the hands and feet of his brother Latif @ Dallu were tied from back by the piece of rope SC No.02/13 Page 11 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu (rassi) and the mouth of his brother was also found tied with the rope and some chili powder was in the eyes of his brother. Thereupon, he removed the rope from the mouth of his brother and on asking his brother Latif @ Dallu replied that some unknown persons came in his room and his hands, feet and mouth were forcefully tied by using rope and when he and his wife enquired about the wife of his brother namely Shama, she was found lying in unconscious state on a bed and, thereafter, this witness informed the police at 100 number and PCR van staff came at the spot and deceased Shama was immediately taken to the RTRM hospital, J. P Kalan and police had recorded his statement vide Ex. PW1/A. He further stated that on the date of incident, when he removed tape from his mouth and eyes, accused Latif @ Dallu told him that when he was sleeping, some one had caught hold of his hands and when he opened his eyes, some one had thrown the chilli powder in his eyes and he could not see anything and he did not know as to how many persons had entered in the house and who were they.
15. PW2 Shabana is wife of PW1 Suresh, who has also deposed on the line of her husband PW1.
16. PW3 is ASI Attar Singh, who has deposed that on SC No.02/13 Page 12 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu 20.09.2012, he was posted in the mobile crime team SWD and on that day, on receiving a call from South West District Control Room through wireless, he alongwith his staff went to the place of incident where Inspector Harender Singh, SHO, Chhawla was already present and at the instance of SHO, he inspected the place of incident and photographer took some photographs of place of incident from different angles and he prepared his report Ex. PW3/A.
17. PW4 is Const. Manish, who has deposed that on 20.09.2012, he was posted in the Mobile Crime Team, South West District and on that day, he alongwith ASI Attar Singh reached the place of incident where SHO PS Chhawla met them and on the direction of ASI, Crime Team, he took some photographs of place of occurrence and the positive photographs are Ex. PW4/A1 to Ex. PW4/A8 and the negatives are Ex. PW4/B1 to Ex. PW4/B8.
18. PW5 is ASI Kulbhushan Bisht, who has deposed that on 20.09.2012, he alongwith Const. Praveen, photographer and I/c Crime Team and inspector Harender Singh visited the place of occurrence and he had lifted two chance print from packing tape (brown colour) with the help of grey powder and prepared SC No.02/13 Page 13 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu the chance print report Ex. PW5/A and, thereafter, he sent the chance print to finger print bureau for comparison.
19. PW6 is Dr. Satish Chandra Yadav, who has deposed that on 20.09.2012, he had examined the deceased Shama, who was declared brought dead by him and he had prepared the MLC of deceased Shama vide Ex. PW6/A and, thereafter, he called gynecologist in the casualty as the deceased Shama was pregnant and after examination by gynecologist, the dead body was shifted to mortuary, RTRM Hospital. He further deposed that on the same day, he had also examined accused Latif @ Dallu but no external injury was found on the body of Latif and he prepared his MLC Ex. PW6/B. He further deposed that he had called eye specialist in the casualty as chilli powder was found present on the face of Latif but no injury was found in the eyes of accused Latif @ Dallu by the eye specialist.
20. PW7 is Dr. Rahul Shah, who has deposed that on 20.09.2012, he had examined eyes of accused Latif @ Dallu and found no congestion (redness) in the eyes of accused Latif @ Dallu and prepared his report Ex. PW7/A.
21. PW8 Sh. Babu Khan is father of the deceased, who SC No.02/13 Page 14 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu has deposed that deceased Shama was married with accused Latif @ Dallu on 16.01.2006 and after marriage, accused Latif @ Dallu started harassing his daughter and he tried to make him understand on various occasions and he also tried to make his parents understand. He further stated that accused Latif @ Dallu has no job and he used to remain in the house whole day. He further stated that accused Latif @ Dallu used to beat and abuse his daughter and in June 2012, accused Latif had made fallen an earthen pot on the head of his daughter as result of which, she suffered injury and about 25 stitches were given on the head of deceased Shama. He further stated that on the occasion of Eid in the year of 2012, accused Latif came to his house and told his daughter that the wife of his friend is not feeling well and she is admitted in the hospital and he asked his daughter to accompany him to see the wife of his friend but this witness had objected to it as at that time, his deceased daughter was in the family way with eight months and he told him that he could take his daughter with him to his house only. Thereafter, accused Latif @ Dallu immediately left his house and on the same day in the night, accused Latif @ Dallu again came to his house and he stayed there in the night but he did not take dinner at his house and on the next day in the morning, he took his daughter Shama and her son namely Ayan with him to his SC No.02/13 Page 15 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu house.
22. He further stated that on 20.09.2012, brother of accused Latif @ Dallu namely Suresh @ Sunder made a telephonic call to his son Yakub and he told his son that robbery/dacoity had been committed in his house and he asked his son to come soon and, thereafter, on the same day, this witness alongwith his wife Hazra came to the house of accused Latif but at that time, his daughter Shama was not there and, therefore, this witness made enquiries from the neighbours of accused Latif @ Dallu about his daughter and they told that she had gone to fetch medicine and, therefore, he left his wife at the house of accused Latif @ Dallu and he went to RTRM hospital and in the hospital, accused Latif @ Dallu met him and on seeing him, accused Latif @ Dallu started weeping and on the same day, he came to know that his daughter has expired. He further stated that police officer took him to the office of SDM at Najafgarh where his statement was recorded vide Ex. PW8/A and on 21.09.2012, he identified the dead body of his deceased daughter vide memo Ex. PW8/B and after postmortem, the dead body of the deceased Shama was handed over to him vide memo Ex. PW8/C. SC No.02/13 Page 16 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu
23. PW9 is Dr. Parvinder Singh, who has deposed that on 21.09.2012, he had conducted the postmortem on the body of deceased Shama on receipt of inquest papers consisting of application Ex. PW9/A and he found following injuries on the body of the deceased:
1.abrasion measuring .4x4 cm situated below left eye (middle) colour reddish.
2.Abrasion measuring .2x.2 cm situated over face near nasal septum (middle part) on left side, colour reddish.
3.Cresence shape abrasion measuring.7x.1 cm present over left side of nose distally, colour reddish.
4.Abrasion .2.x.2 cm situated over left ala of nose, colour reddish.
5.Abrasion .2x.2 cm situated adjacent to left ala of nose, colour reddish.
6.Defuse bruising of tip of nose and around mouth present.
7.Lacerated wound 1x1 cm present over inner aspect of middle part of lower lip with defuse bruising of inner aspect of lower lip present.
8.Defuse bruising of inner aspect of upper lip present.
9.Bruising of gums present (diffuse).
10.Tip of tongue bruised and lacerated (bitten).SC No.02/13 Page 17 of 62 SC No.02/13 FIR No.212/12
PS: Chhawla State Vs.Latif @ Dallu
24. After the postmortem, her exhibits, I.e viscera, blood sample (dried gauge piece), nail clippings, clothes preserved and sealed with the seal of RTRM hospital and handed over to IO vide his noting on Ex. PW9/A and in his opinion, the cause of death is due to axphyxia following antemortem smothering and the time since death was approximately 1 ¼ days at the time of conducting the post mortem. All injuries mentioned in post mortem report were antemortem and recent and caused by hard blunt object. His detailed postmortem report is Ex. PW9/B.
25. PW10 is Yakub Ali, brother of deceased Shama, who has deposed that on 16.01.2006, marriage of the deceased Shama was solemnized with accused Latif @ Dallu and after marriage, accused used to harass his sister and used to quarrel with her and accused was not doing any work and when his sister used to ask him to do work, accused Latif @ Dallu used to beat her. He further stated that accused Latif @ Dallu had demanded Rs. 1 lac from him in the year 2012 and in June 2012, accused had caused one flower pot fallen on the head of his sister due to which she sustained injuries and, thereafter, his father had brought his sister Shama to his house.
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26. He further stated that on 20.09.2012at about 6:00 am, he received a call from Sunder, brother of the accused that dacoity had taken place in his house and dacoits had beaten his sister and, thereafter, he informed his parents and before reaching of his parents at the house of accused Latif @ Dallu, brother of the accused namely Sunder made another call to his brother and told that his sister Shama had expired and at that time, his sister was pregnant and her delivery was due. He further stated that he went to the hospital and, thereafter, he went to the office of SDM where his statement was recorded by the SDM vide Ex. PW10/A and on the next day in the mortuary, he had identified the dead body of his sister vide Ex. PW10/B and after postmortem, he received the dead body of his sister Shama vide Ex. PW8/C.
27. PW11 is Const. Pardeep, who has deposed that on 20.09.2012, he had accompanied the crime team headed by ASI Khazan Singh from police station, IO alongwith the accused Latif @ Dallu and other officials and crime team came to the house No. 217, plot no.34A, village Deenpur, Najafgarh and when they entered into the main gate, there was a room under construction which was situated towards lane and the window affixed towards the lane was having no door and accused SC No.02/13 Page 19 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu pointed out the brown colour tape which was lying in between the wall and the door with which he affixed the neck of wife Shama and also affixed the brown colour tape on the mouth. This witness had taken the photographs of the said tape and pointing out by the accused and fingerprint expert also collected the fingerprint and after developing the same, the photographs Ex. PW11/A1 to PW11/A6 and negatives Ex. PW11/B1 to PW11/B8 were given to the IO and out of the 8 negatives, only six prints could be developed.
28. PW12 is Const. Ravinder Singh, who has deposed that on 21.11.2012, on the instructions of the IO, Inspector Harender Malik he had received the pulandas/exhibits in duly sealed condition and FSL form pertaining to this case from MHCM had take the same to FSL Rohini vide RC No. 146/21/12 and the officials of Rohini returned three pulandas and retained the remaining pulandas in the FSL and, thereafter, he obtained the receipt of acknowledgment of case property from the FSL and brought the same to the police station alongwith three pulandas and deposited the same with MHCM.
29. PW13 is Rakesh, who has resiled from his earlier statement and during cross examination by Ld. Addl.PP for the SC No.02/13 Page 20 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu State, he denied the suggestion that incident relates to date 20.09.2012 and it was 05:15 am when he reached the spot. He further denied the suggestion that he told police in his statement that Sunder had untied the hands of accused Latif @ Dallu and removed the tape from the eyes of accused and he also heard the voice of Shabana that tape was pasted on the neck of Shama and he saw that in the room belongings were scattered outside the almirah and accused Latif @ Dallu told that on the previous night someone had poured chilli powder in his eyes and pasted tape on his mouth and also tied his hands and legs.
30. PW14 is HC Bharat Lal, who has deposed that on 20.09.2012, Inspector Harender Singh handed over him eight sealed pullandas with the seal of VK and four sealed pullandas with the seal of RTRM hospital and one sample seal of RTRM hospital and same were deposited by him in the malkhana and entry was made at serial No. 476 in register No.19 and the photocopy of the same is Ex. PW14/A.
31. He further deposed that on 24.09.2012, three sealed pullandas with the seal of RTRM hospital and one wooden box handed over to him and two sample seals with the seal of RTRM SC No.02/13 Page 21 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu hospital and same was deposited by him in the malkhana and he made the entry in register No.19 at serial No. 778 and the copy of same is Ex. PW14/B.
32. He further deposed that on 14.11.2012, on the direction of the IO, he handed over one sealed wooden box with the seal of RTRM hospital and one sample seal to Const. Anil for depositing them at CFSL, Hyderabad vide RC No. 144/21 and Constable got deposited the same in CFSL, Hyderabad and after depositing, he handed over the receipt of RC to him and same was placed to him and copy of the same is Ex. PW14/C.
33. He further deposed that on 21.11.2012, on the instructions of the IO, he handed over six sealed pullandas with the seal of RTRM hospital and one sample seal of RTRM hospital and two sealed pullandas with the seal of VK and sample seal of VK to constable Ravinder vide CR No. 146/21 and constable Ravinder got deposited the same in FSL office, Rohini and after depositing, he obtained the receipt on RC and acknowledgment and same was handed over to him and the copy of the same is Ex. PW14/D and PW14/E.
34. He further deposed that on 22.11.2012, on the SC No.02/13 Page 22 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu instructions of the IO, he handed over three sealed pullandas to constable Dinesh for depositing in FSL Rohini vide RC No. 147/21 and Const. Dinesh got deposited the same in FSL office and he came back to the police station and handed over the receipt of RC and acknowledgment. Photocopy of the same is Ex. PW14/F and PW14/G.
35. PW15 is WHC Anita, who has deposed that on 20.09.l2012 on receiving of rukka, she got lodged FIR No. 212/12 vide Ex. PW15/A and made her endorsement on the rukka vide Ex. PW15/B and after registration of the case, she handed over the original rukka and computerised copy of FIR to Const. Vinod. She further deposed that she issued a certificate under section 65B Indian Evidence Act vide Ex. PW15/C and she mentioned the same in daily diary register at serial No.11 vide Ex. PW15/D.
36. PW15A is Const. Dinesh Kumar, who has deposed that on 22.11.2012, on the direction of the IO, she had taken three sealed parcels from MHC(M) and deposited the same in FSL Rohini vide RC No. 147/21 and after obtaining acknowledgment, she handed over the same to MHCM.
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37. PW16 is Const. Kamal Singh, who has deposed that on 20.09.2012, she received a call from phone No. 9871955366 regarding theft of house No. 217, near Harijan Chowpal, Village Dinpur, Najafgarh and she recorded the same in form No.1 and informed the office in NIET and the computerised PCR form is Ex. PW16/A.
38. PW17 is Krishna Mohan Uppu, District Magistrate, who has deposed that on 20.09.2012, on the request of the SHO, he went to RTRM hospital and conducted the inquest proceedings in respect of deceased Shama and the inquest papers prepared by him are collectively Ex. PW17/A. He further deposed that on that day, he had recorded the statement of Sh. Babu Khan, father of the deceased and Sh. Yakub Ali, brother of the deceased vide Ex. PW8/A and PW10/A.
39. PW18 is Const. Hardeep Singh, who has deposed that on 30.11.2012, he went to the spot and inspected the site and had taken rough notes and measurements and on the basis of said rough notes and measurements, he had prepared scaled site plan on 04.12.2012 and the same is Ex. PW18/A and he handed over the scaled site plan to the IO on 08.12.2012.
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40. PW19 is Inspector Balbir Singh, who has deposed that on 21.09.2012, on the direction of the IO, he had taken part in inquest proceedings conducted by SDM, Najafgarh and his request regarding the postmortem of the deceased is already Ex. PW9/A. He further deposed that after postmortem of the deceased, the dead body of the deceased was handed over to her relatives and on 24.09.2012, he collected postmortem report and exhibits of this case from the autopsy surgeon and handed over the same to the IO.
41. PW20 is SI Devender, who has deposed that on 20.09.2012, on receipt of DD No. 4A, he alongwith Const. Balwan went to spot I.e Plot No. 34A, Dhanko wali Chaupal, Dinpur Village where one lady met him and she informed that her brotherinlaw and his wife were robbed after tiding them and pouring chilly powder in their eyes and both the injured had already been shifted to the hospital. He further deposed that PCR van was also there and informed him that injured were shifted to RTRM hospital by CAT ambulance and after informing the senior officer in this regard, he went to RTRM hospital leaving behind constable at spot and in the hospital, one Shama was found there, who had been declared brought dead and, therefore, he made enquiries from Suresh @ Sunder, brother of SC No.02/13 Page 25 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu the accused Latif @ Dallu. He also got medically examined the accused Latif @ Dallu as he was also complaining eye problem due to chilli and recorded the statement of Suresh @ Sunder in the hospital vide Ex. PW1/A and in the meantime, on the direction of the SHO, const. Vinod and Const. Balwan reached in the hospital and he made his endorsement Ex. PW20/A and, thereafter, he sent Const. Vinod to PS for registration of FIR. He further deposed that he deposited the dead body in the mortuary and deputed Const. Balwan for the safety of dead body. He further deposed that he received exhibits from doctor and, thereafter, he alongwith accused Latif @ Dallu returned to the spot and he handed those exhibits to IO and IO seized the same vide seizure memo Ex. PW20/B. He further deposed that investigation of this case was assigned to Inspector Harender and crime team inspected the spot. He further deposed that IO lifted the exhibits from the spot and same were seized vide seizure memo Ex. PW20/C and during interrogation, accused Latif @ Dallu admitted his involvement in this case and, therefore, accused Latif @ Dallu was arrested vide arrest memo Ex. PW20/D and his personal search was conducted vide memo Ex. PW20/E and his disclosure statement was recorded vide memo Ex. PW20/F and accused got recovered the remaining tape which was used by him for tiding the deceased and the SC No.02/13 Page 26 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu same was seized vide seizure memo Ex. PW20/G and, thereafter, police party returned to the PS and IO recorded his statement . He further deposed that on 24.09.2012, Inspector Balbir Singh got postmortem of the deceased conducted and after returning from hospital, he handed over four sealed parcels alongwith two sample seals to the IO and same was seized vide seizure memo Ex. PW20/H.
42. PW21 is Const. Vinod, who has deposed that on 20.09.2012, he alongwith SHO and Const. Parmeshwar went to the spot where const. Balwan met them and he told the SHO that SI Devender after leaving him there had gone to RTRM hospital and, thereafter, on the direction of SHO, he alongwith Const. Balwan went to RTRM hospital where he met SI Devender and SI Devender handed over to him one tehrir and sent him to police station for registration of FIR and after registration of FIR, he alongwith original rukka and copy of FIR went to the spot and handed over the same to SHO Inspect Harender Singh. He further deposed that IO collected seven exhibits from the spot and seized the same vide seizure memo already Ex. PW20/C and prepared the site plan. He further deposed that accused Latif @ Dallu was arrested vide arrest memo Ex. PW20/D and his personal search was conducted vide SC No.02/13 Page 27 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu seizure memo Ex. PW20/E and disclosure statement of the accused was recorded vide Ex. PW20/G. He further deposed that crime team had also inspected the spot and two chance prints were developed.
43. This witness has also identified the case property I.e Ex. P1 containing brown colour packing, Ex.P2 containing two pieces of brown colour packing tape, Ex.P3 containing brown colour packing tape, Ex. P4 containing one steel glass, EX.P5 containing one plastic container, Ex.P6 containing one transparent plastic jar, Ex. P7 containing one pink and mehdi colour chunni which has cut mark of knife and Ex. P8 containing one double bed sheet of white background and black flowers.
44. PW22 is Master Ayan whose testimony will be discussed in later part of the judgment.
45. PW23 is Inspector Ravinder Singh, who has deposed that on 11.12.2012, he received chance prints and specimen prints for comparison and he examined the same and he has the view that chance print mark Q1 and Q2 were identical with right middle and right index finger mark S2 and S1 and his detailed report in this regard is Ex. PW23/A. SC No.02/13 Page 28 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu
46. PW24 is Ms. Ruby, younger sister of deceased Shama, who has deposed that her elder sister deceased Shama got married with accused Latif @ Dallu in 2006 and three months prior to the present incident, she had sustained injury in her head as accused had made a flower pot fallen on her head and during the period of pregnancy of her sister, she used to talk to her sister Shama on regular basis and sometimes, accused Latif @ Dallu used to pick up phone and she used to wish him and asked him to give the telephone to her sister. She further stated that she could not understand as to what intention accused bear in his mind regarding her.
47. PW25 is Parshuram Singh, who has deposed that on 22.11.2012, he received three sealed parcels for examination and he examined the same and on opening parcel A was found containing two pieces of brown colour adhesive tape, parcel B was containing one piece of brown colour adhesive tape and parcel H was containing one roll of brown colour adhesive tape and on examination of the same, he reached at the conclusion that exhibit A,B and H were similar in respect of colour, texture, width, thickness, appearance under UV light and FTIR spectra and his report in this regard is Ex. PW25/A. SC No.02/13 Page 29 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu
48. PW26 is Inspector Harender Singh, who has deposed that on 20.09.2012, one DD No. 4A was registered at PS Chhawla regarding theft in house in village Deenpur and same was marked to SI Devender Singh, who alongwith Const. Balwan went to the spot and after inspection, SI Devender Singh told him that the matter was not related to theft and injured had already been shifted to RTRM hospital and, therefore, he alongwith Inspector Balbir Singh, ATO, Const. Vinod, Const. Purshottam and other staff also reached the spot and const. Balwan met him there and at the spot, he came to know that accused Latif @ Dallu and his wife Shama had already been taken to RTRM hospital and SI Devender Singh had also left for the hospital and the articles kept in almirah were lying scattered in the room and this witness left Const. Purshottam at the spot to guard the spot and he alongwith Const. Vinod and Const. Balwan went to RTRM hospital where deceased Shama was admitted brought dead and he made inquiries from accused Latif @ Dallu and his brother Suresh and SI Devender Singh moved an application for preparing the MLC of accused Latif @ Dallu and to opine about the presence of chilli powder in the eyes of accused and after medical examination, doctor told that no substance of chilli powder found in his eyes, however, chilli SC No.02/13 Page 30 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu powder was smeared around the eyes and on the face and eyes specialist further opined that no chilli powder was found in his eyes and, therefore, SI Devender Singh recorded the statement of complainant Suresh and prepared rukka and got the case registered through const. Vinod and, thereafter he aloangwith PW1 Suresh went to the spot and SI Devender completed the formalities regarding postmortem of the deceased.
49. He further deposed that photographer of the crime team took the photographs and he had prepared the site plan at the instance of PW1 Suresh vide Ex. PW26/A and, thereafter, he seized two pieces of brown colour tape, one another piece of brown colour tape, one steel glass, one plastic dibbi containing chilli powder, one container containing chilli powder, one chunni and double bed sheet vide seizure memo Ex. PW20/C and accused Latif @ Dallu was also interrogated as his version regarding pouring of chilli powder in his eyes was found false and son of the accused namely Ayan aged about three years, who was sleeping with his mother on the incident of night told that his father had posted tape on the mouth of his mother and on interrogation, accused Latif @ Dallu admitted that he had murdered his wife and, therefore, accused was arrested vide arrest memo Ex. PW20/D, his personal search was taken vide SC No.02/13 Page 31 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu memo Ex. PW20/C and his disclosure statement was recorded vide Ex. PW20/F. He further deposed that in the meantime, parents of the deceased came there and their statements were recorded by SDM, Najafgarh. He further deposed that accused got recovered one roll of brown colour adhesive tape from the under construction area of the same plot and photographs of the roll were taken and fingerprint expert lifted the chanceprint from the roll and, thereafter, the said roll was seized vide seizure memo Ex. PW20/G and the same was deposited in the malkhana and he recorded the statement of the witness. He further deposed that after postmortem, he seized four sealed parcels alongwith sample seals vide Ex. PW20/H and on completion of investigation, he prepared the chargehsset and file the same and he also filed supplementary chargesheet after receiving the FSL result and report of fingerprint bureau.
50. DW1 is Sh. Mohan Lal, who has deposed that he used to visit the house of accused Latif @ Dallu for last many years and on the day of incident in the morning, he heard about the incident and the hands of the accused Latif @ Dallu were tied with rope.
51. DW2 is Shiripal, who has deposed that he did not SC No.02/13 Page 32 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu see any quarrel of accused Latif @ Dallu with his wife and he was living peacefully. He further deposed that he came to know about the death of wife of accused at about 6:30 am and he went there and saw that accused was lying tied with the rope. He further deposed that accused Latif @ Dallu was a good man and was labourer by profession.
52. Ld. State counsel has contended that accused Latif @ Dallu was present in the house when the deceased died of homicidal death by strangulation and the alleged story concocted by the accused that a robbery has been committed at his residence is found to be false by the testimony of prosecution witnesses and, therefore, as to how the deceased died of homicidal death is with in the special knowledge of the accused Latif @ Dallu but he has failed to give any plausible explanation for such death of the deceased and therefore the prosecution has proved the case to the hilt and accused deserves to be convicted.
53. Per contra, ld. Counsel for the accused has contended that robbery has been committed at the house of the accused in which his wife has been murdered and his hands and feet were tied with a rope from behind and his mouth was also SC No.02/13 Page 33 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu tied with tape and chilli powder was thrown in his eyes and in the morning, he was seen by his sisterinlaw and, thereafter, deceased as well as accused were shifted to RTRM hospital. There is no evidence on record to connect the accused with the alleged offence, therefore, the accused deserves to be acquitted by giving benefit of doubt.
54. The present case is based on circumstantial evidence except the presence of child witness namely Ayan, son of the deceased and accused who has only deposed that the accused/his father had put tape on the neck of his mother/the deceased and no robbery was committed in his house.
55. At the outset, I may note that there is no eye witness to the incident. The prosecution case rests upon circumstantial evidence only. The law regarding circumstantial evidence is very well known by now and can be summarized as under:
(i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;
(ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused; (iii)the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that with SC No.02/13 Page 34 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu all human probability the crime was committed by the accused and none else; and (iv)the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
(See Krishan vs. State, (2008) 15 SCC 430)
56. The Supreme Court in Sapna Talwar vs. State, 2011 (IX) AD Delhi 165 has observed :
"No doubt, the courts have also added two riders to the aforesaid principles namely, (i) there should be no missing link but it is not that everyone of the links must appear on the surface of the evidence, since some of these links can only be inferred from the proved facts and (ii) it cannot be said that the prosecution must meet each and every hypothesis put forward by the accused, however farfetched and fanciful it may be. It is well established legal principle that in a case based on circumstantial evidence SC No.02/13 Page 35 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu where an accused offers a false explanation in his statement under section 313 Cr.PC in respect of an established fact, the said false denial could supply a missing link in the chain of circumstances appearing against him."
57. Let me now examine the evidence lead by the parties in this case in the light of the aforesaid legal principles governing the cases based up circumstantial evidence.
58. The deceased has died of homicidal death as PW6 Dr. Satish Chandra Yadav has deposed the deceased Shama was brought declared dead in terms of her MLC Ex. PW6/A and PW9 Dr. Parvinder Singh has also deposed that on 21.09.2012, he conducted post mortem of the dead body of deceased in terms of Ex.PW9/B and apart from observing antemortem injuries over her body he has opined the cause of death as asphyxia following antemortem smothering and time of death is stated to be about 1 ¼ day from the time of conducting the postmortem on the dead body of Shama. It has been proved by prosecution on record that deceased died of homicidal death in the intervening night of 1920/09/2012, no cross examination of SC No.02/13 Page 36 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu PW9 Dr. Parvinder Singh has been conducted and such testimony of PW9 has gone unrebutted.
59. Now the question arises as to how the deceased met with homicidal death.
60. PW22 Master Ayan is the son of deceased and accused and he deposed that on 20.09.2012, he was sleeping with her mother/deceased and accused put brown colour tape on the neck of her mother and PW22 stated that the accused was not bitten by anybody. In cross, he admitted that he was present in his house and had not gone to the house of his maternal uncle. He denied the suggestion that any robbery had taken place on the day of incident in his house.
61. It is settled law that testimony of a child witness needs to scrutinized carefully in order to rule out that child witness has not been tutored or deposing at the instance of someone who brought him.
62. The following principles with regard to appreciate the testimony of a child witness are to be kept in mind namely as has been laid down by Hon'ble Supreme Court in State of SC No.02/13 Page 37 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu M.P vs Ramesh (2011) 5 SCR 1 and it has been observed that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring only in case there is evidence on record to show that a child has been tutored, the court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition.
63. Keeping in view the settled principles of law, I am of the opinion that PW22 Ayan is deposing truthfully and his testimony is worthy of credit and his testimony is not the result of tutoring.
64. It is relevant to note that testimony of PW22 Ayan is further corroborated by PW8 Babu Khan, PW10 Yakub Ali, PW22 SI Devender and PW26 Harender Singh/IO so far as his presence at the time of murder of his mother is concerned. PW8 Babu Khan, father of the deceased has deposed that his daughter/deceased was brought to her matrimonial home SC No.02/13 Page 38 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu alongwith her son/PW22 by accused but no suggestion has been given to this witness that PW22 had not accompanied the deceased when she was brought to her matrimonial home by accused. Similarly, PW10 Yakub Ali has not been given any suggestion regarding presence of PW22 in the house of PW10 at the time of incident. In the same manner, PW20 SI Devender has deposed that PW22 Master Ayan was examined by PW26 Harender Singh and, thereafter, accused was arrested. PW26 has also deposed regarding presence of PW22 at the house of accused after murder of the deceased but no suggestion has been given to these witnesses regarding the absence of PW22 at the spot of incident. Therefore, prosecution has been successful in proving that PW22 was present in the house of accused at the time of the murder of the deceased Shama.
65. It may be relevant to note here that conduct of the accused before and after the commission of offence is relevant and such incriminating conduct of the accused only leads to the only irresistible conclusion that accused is the perpetrator of the offence in question.
66. So far as conduct is relevant. It may be noted that the section 8 of the Evidence Act and the illustration (e) SC No.02/13 Page 39 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu appended to this section is reproduced here under:
8. Motive, preparation and previous or subsequent conductAny fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.
The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
Explanation 1. The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.
SC No.02/13 Page 40 of 62 SC No.02/13 FIR No.212/12PS: Chhawla State Vs.Latif @ Dallu Explanation 2. When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.
Illustration (e) The facts that, either before or at the time of, or after the alleged crime. A provided evidence which would tend to give to the facts of the case an appearance favourable to himself, or that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant.
67. A bare perusal of this section as well as the illustration appended thereto makes it crystal clear that if an accused try to make the facts of the case favourable to him or that he destroyed or concealed evidence or prevented the presence or procured the absence of the person who might have been a witness such conduct of the accused is relevant.
SC No.02/13 Page 41 of 62 SC No.02/13 FIR No.212/12PS: Chhawla State Vs.Latif @ Dallu
68. Section 8 of Indian Evidence Act, however, provides that the conduct of any person an offence against whom is the subject of any proceeding is relevant, if such conduct influences or is influences by any fact in issue or relevant fact and whether it was previous or subsequent to it same hence, any behaviour or conduct of the accused would be relevant if it has nexus with the offence under section 302 IPC alleged to have been committed by him.
69. The second paragraph of section 8 of the Act talks about the significance of conduct. The conduct that this section speaks is different from character. Conduct means the external behaviour of a person whereas character can be said to be impression about a person in the mind of the others. The conduct of a person concerned in a crime would become relevant if his conduct is related with the incident to regard a conduct to be relevant. It must be closely connected with the incident concerned. If the court considers such conduct to be relevant then the conduct must help the court in arising to a conclusion in the controversy. The conduct must have a bearing on the decision. If so happens, then, notwithstanding the conduct was previous subsequent, it shall be thoroughly scrutinized by the court. A conduct to become relevant under SC No.02/13 Page 42 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu section 8 need not become simultaneous and spontaneous, that is to say with that very incident. It may become subsequent and previous to the main fact in issue. Therefore, the court which deciding a matter in which section 8 of the act plays a pivotal role, must proved with utmost care when a case is based on circumstantial evidence then it is very likely that evidence are not direct or in other words circumstances available in the court is not clear and, therefore, court should scrutinize evidence beyond reasonable doubt.
70. It may be noted that accused has taken the defence of robbery which has taken place in house and robbers after committing robbery murdered his wife and tied his hands/feet from back side by a rope and put tape on his mouth and eyes after throwing chilli powder on his eyes. But this defence of accused is belied by his conduct as well as the testimony of Pws and Dws. PW1 Suresh Kumar, who is residing in the same house where the accused alongwith his wife and son was residing and he has deposed that on 20.09.2012, he woke up in the early morning and asked his wife PW2 Smt. Shabana to prepare food for him as he had to leave for his job and PW1 went to answer the call of nature in the toilet having asked his wife/PW2 Shabana to wake up accused Latif @ Dallu for SC No.02/13 Page 43 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu bringing milk. PW1 Suresh has further deposed that he found the dooor of the room of accused closed but main door of his house was opened and when his wife/PW2 called accused by his name, accused Latif @ Dallu replied about his presence to PW2 but accused did not open the door of the room despite having knocked by PW2 Shabana and neither the accused nor the deceased gave any response and PW2, therefore, opened the door by pushing and raised alarm and on hearing alarm, PW1 Suresh came out of the toilet and entered into the room of the accused and found hands, feet and mouth of the accused Latif @ Dallu tied with a rope and some chilli powder was in the eyes of the accused, thereafter, PW1 untied the rope of the accused and asked from the accused about the incident and accused told her that someone has committed robbery and tied his mouth with rope and threw chilli powder in his eyes and the deceased was also found lying dead in the inner room situated within that room.
71. Testimony of PW1 is supported by the testimony of PW2 who reiterated the version of PW1 verbatim. PW1 has also deposed that in the morning of 20.09.2012, she called the accused by knocking at the door but no one responded and she pushed the door and saw that hands/feet of the accused Latif @ SC No.02/13 Page 44 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu Dallu were found tied with a rope from backside and he was lying on the floor and she called her husband PW1 Suresh.
72. PW2 Shabana contradicted PW1 Suresh so far as tieing of mouth of the accused Latif @ Dallu as she has not stated that mouth of the accused was also tied. The mouth of the accused was not tied is also proved by testimony of PW2 Shabana as PW1 stated that accused responded to the call of his wife/PW2 and made his presence felt in the room. DW1 Mohan Lal and DW2 Shiripal have also not deposed that mouth of the deceased was tied with a rope.
73. So far as robbery is concerned. PW1 has admitted that goods/articles were found in the almirah and when PW1 was cross examined by Ld. Addl. PP for the State, PW1 has admitted that he had not disclosed to police regarding missing of articles from the house of accused and missing of articles from the house of accused came to his knowledge after three days of the incident. But PW2 has deposed that she had seen the articles lying scattered in the room and some jewellery items like necklace, ring and pajaib were missing. PW13 Rakesh has also not deposed regarding tieing of mouth of accused as well as robbery in the house of accused. DW1 and DW2 have also SC No.02/13 Page 45 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu stated nothing about allegedly robbery in the house of accused. Even the accused has not stated anything regarding missing of jewellery from his house in the alleged robbery in his statements recorded under section 313 Cr.PC. Therefore, from the conjoint reading of the testimonies of these witnesses, it can safely be inferred that no robbery had taken place in the house of accused on the fateful day.
74. It may be seen from a different angle i.e it is not the case of the accused or his brother and sisterinlaw that main gate of the house of accused was not closed/bolted from inside in the intervening night of 19/20.09.2012 and further the door of the room of accused was not bolted from inside. Therefore, if both the gate/door of the main gate as well as room of the accused were bolted from inside then how these two gates/doors were found unbolted and by whom these gates/doors were unbolted neither the PW1 Suresh nor PW2 Shabana, sisterinlaw of accused nor the accused have furnished any explanation regarding unbolting of these gates/doors. Therefore, the conduct of accused and his family members had to the irresistible conclusion that no robbery as alleged had even taken place in the house of the accused. The above discussion leads to only one inference that accused SC No.02/13 Page 46 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu himself unbolted both the gates/doors.
75. It may be noted here that police was informed by PW1 Suresh Kumar regarding theft taken place at his residence from his mobile phone and said information was recorded in police station Chhawla vide DD No. 4A and PW20 SI Devender alongwith Const. Balwan went to the spot of incident and PW2 told PW20 that accused and deceased have been robbed by someone after pouring chilli powder in their eyes and PW20 after leaving Const. Balwan at the spot went to RTRM hospital and accused was also got medically examined as accused was complaining about chilli powder in his eyes but PW6 Dr. Satish Chandra Yadav got medically examined the accused from eye surgeon and PW7 Dr. Rahul Shah, ophthamologist examined the accused Latif @ Dallu and opined that there was no congestion (redness) was found in the eyes of accused but chilli powder was found present on the face of accused in terms of his report Ex. PW7/A. Therefore the lame excuse given by accused regarding throwing of chilli powder by robber is found false by medical evidence which is also the another link in the conduct of the accused which is highly incriminating.
76. It may be noted here that PW20 has further deposed SC No.02/13 Page 47 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu that he recorded the statement of PW1 Suresh vide Ex. PW1/A and prepared rukka Ex. PW20/A and got lodged the FIR and he came to the spot alongwith accused and in the meantime, FIR was lodged and investigation was handed over to PW26 Inspector Harender Singh and PW26 has deposed that he lifted and seized the exhibits from the spot including two samples of brown colour tape and after arresting the accused, accused suffered a disclosure statement disclosing therein that he had thrown the remaining brown tape in the portion of unconstructed portion of house and he got recovered the same vide seizure memo Ex. PW20/G and crime team lifted chance print from the spot from that brown colour tape.
77. The disclosure statement of the accused is relevant and is admissible under section 27 of the Evidence Act and the same is a discovery of facts in pursuant of the disclosure statement of the accused and such recovery is also relevant as the conduct of the accused under section 8 of the Indian Evidence Act. In this regard, I found support from the observation made in Updesh @ Chintu vs State 2012IIAD(delhi) 626 which is reproduced hereunder:
A perusal of the testimony of PW6, PW7 SC No.02/13 Page 48 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu and PW8 shows that recovery of the arms and ammunition was made pursuant to his disclosure in case FIR No. 154/09. Thus, recording of a disclosure statement in the present case could not have taken place. The contention of the learned counsel that recovery was not pursuant to disclosure statement of the appellant is liable to be rejected. The recovery of the articles is pursuant to disclosure statement which is admissible under section 27 of the Indian Evidence Act. The registration of FIR is not a sine qua non for the recovery to be effected. Recovery can be effected even on an oral disclosure statement. Further the conduct of the accused leading the police party to his house and the specific place in the house from where the recovery of arms and ammunitions is consequently made is also admissible under section 8 of the Evidence Act. Reference in this regard is made of Himachal Pradesh SC No.02/13 Page 49 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu Administration vs. Om Prakash MANU/SC/0118/1971: (1972) 1 SCC 249.
78. It may be relevant to mention here that PW5 ASI Kulbhushan Bisht had taken two chance prints (Q1 and Q2) from packing tape of brown colour in the evening of 20.09.2012 from the place where accused got recovered the remaining portion of brown tape and these chance prints were compared and found matched with specimen prints of accused by PW23 Inspector Ravinder Singh in terms of his report Ex. PW23/A and PW25 Parshuram Singh found the packing tape of brown colour identical in parcel A, B and H in terms of his report Ex. PW25/A.
79. Therefrom the conjoint reading of the testimonies of PW5, PW23 and PW25, it can safely be inferred that the tape used by the accused in affixing the mouth of his wife, and on his body and the remaining tape thrown by him and got recovered later on is made of same stuff as all the samples collected by police are found to be identical and finger prints in the remaining brown colour tape are found to be that of accused.
This is also a link in the conduct of the accused which incriminates him and supplying another link in the chain of circumstantial evidence.
SC No.02/13 Page 50 of 62 SC No.02/13 FIR No.212/12PS: Chhawla State Vs.Latif @ Dallu
80. It is obligatory on the part of the accused while being examined U/s 313 CrPC to furnish some explanation with respect to the incriminating circumstances associated with him and the court must take note of such explanation, even, in case of circumstantial evidence, in order to decide as to whether or not the chain of circumstances is complete when the attention of the accused is drawn to the circumstances that inculpate him in relation to the commission of crime and he fails to offer an appropriate explanation with respect to the same, the said act may be considered as providing a missing link for completing the chain of circumstance. In this regard & found support from State of Maharashtra Vs Suresh (2000) 1 SCC 471, Musheer Khan VS State of M.P.(2010) 2 SCC 748.
81. During his examination U/s.313 CrPC the accused has not given any explanation as to under what circumstances his wife was murdered and as to why he had not tried to catch hold of those assailants/robbers and how he has not reacted by shrilling after chilli powder was thrown in his eyes. Therefore the act of supplying false information of robbery by accused accompanied by his previous and subsequent conduct which is of highly incriminating nature and which demolishes the SC No.02/13 Page 51 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu presumption of innocence, led only to the conclusion that the accused had murdered his wife and took a lame excuse of a robbery having taken place in his house.
82. Now coming to the motive of the accused doing away with the deceased.
83. The contention of the counsel for the defence is that as per the prosecution story, the accused was having an evil eye on his sisterinlaw Ruby PW24 and for that purpose, he has done away with his wife. The prosecution has failed to prove the motive as the said witness Ruby has not uttered a single word that accused was trying to be friendly with her. So, there is no motive proved on record against the accused for murdering his wife. But this contention appears to be attractive and same is hereby rejected as it is settled law that motive is engrained in the mind of the criminal which is impossible for the prosecution to prove. It may be noted that the absence of motive is not going to demolish the case of prosecution, if proved, otherwise and Supreme Court in Vijjay Singh vs State of Punjab (2007) 13 SCC 90 has observed that it is true that in a case relating to circumstantial evidence a motive does assume great importance but to say that the absence of motive would dislodge the entire SC No.02/13 Page 52 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu prosecution story is perhaps giving this one factor an importance which is not due and the motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy.
84. It is relevant to mention here that in criminal appeal No. 1397/10 titled as Bhupender @ Kale vs State passed by Delhi High Court, it has been observed as under:
If we examine the decisions of the Supreme Court on the point of death of a wife in her matrimonial house, we find that the decisions can be classified into undernoted 4 broad categories: I. In the first category fall the decisions where it is proved by the prosecution that the husband was present in the house when the wife suffered a homicidal death and rendered no explanation as to how his wife suffered the homicidal death. (See the decisions reported as State of Rajasthan v Parthu (2007) 12 SCC 754, Amarsingh Munnasingh Suryavanshi v State of Maharashtra AIR 2008 SC 479, Ganeshlal v State of Maharashtra (1992) 3 SCC 106, Prabhudayal v State of Maharashtra (1993) 3 SCC 573, CRL.A. 1397/2010 Page 8 of 11 Dynaneshwar v State of SC No.02/13 Page 53 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu Maharashtra (2007) 10 SCC 445, Trimukh Maroti Kirkan v State of Maharashtra (2006) 10 SCC 681, Bija v State of Haryana (2008) 11 SCC 242 and State of Tamil Nadu v Rajendran (1999) 8 SCC 679).
II.In the second category are the decisions where the prosecution could not prove the presence of the husband in the house when the wife suffered a homicidal death but the circumstances were such that it could be reasonably inferred that the husband was in the house and the husband failed to render any satisfactory explanation as to how his wife suffered a homicidal death. The circumstances wherefrom it could be inferred that the husband was in the house would be proof that they lived in the house and used to cohabit there and the death took place in such hours of the night when a husband was expected to be in the house i.e. the hours between night time and early morning. (See the decisions reported as State of UP v Dr Ravindra Prakash Mittal (1992) 3 SCC 300 and Narendra v State of Karnataka (2009) 6 SCC 61).
III.In the third category would be proof of a very strong motive for the husband to murder his wife and proof of there being a reasonable probability of the husband being in the house and having an opportunity to commit the murder.
SC No.02/13 Page 54 of 62 SC No.02/13 FIR No.212/12PS: Chhawla State Vs.Latif @ Dallu In the decision reported as Udaipal Singh v State of UP (1972) 4 SCC 142 the deceased wife died in her matrimonial home in a room where she and her husband used to reside together. The accusedhusband had a very strong motive to murder the deceased which was evident from the letter written by him to his mistress, which letter clearly brought out the feeling of disgust which the accused had towards the deceased.
The accused had the opportunity to commit the murder of the deceased as there was evidence to show the presence of the accused in the village where the house in which the deceased died was situated at the time of the death of the deceased. Noting the facts that the accused had a strong enough motive and an opportunity to murder the deceased, noting that there was no evidence that the appellant was seen in his house by anybody, the Supreme Court convicted the accused.
IV.In the fourth category are the decisions where the wife died in her matrimonial house but there was no evidence to show presence of the husband in the house at the time of the death of the wife and the time when the crime was committed was not of the kind contemplated by the decisions in category II and was of a kind when husbands are expected to be on their SC No.02/13 Page 55 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu job and there was either no proof of motive or very weak motive being proved as in the decision reported as Khatri Hemraj Amulakh v State of Gujarat AIR 1972 SC 922 and State of Punjab Vs. Hari Kishan 1997 SCC Cri.
1211.
85. Similarly in Tilak Raj @ Bannal vs State Crl No. 1313/2011, Hon'ble Delhi High Court has observed as under:
Thus it has been established beyond doubt that the appellant was present in the house at the time of occurrence and when the deceased, wife of the appellant was stabbed. In Trimukh Maroti Kirkan vs. State of Maharashtra (2006)10 SCC 681, it has been observed that it is extremely difficult for the prosecution to prove what happened and how the occurrence had taken place inside the privacy of a house. The law does not enjoin on the prosecution to lead evidence of such character which is almost impossible or extremely difficult to do. Illustration (b) to Section 106 of the Evidence Act was relied upon and it was observed that SC No.02/13 Page 56 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu when a fact is especially within the knowledge of a person, the burden of proving that fact is on him. It was clarified that although initial burden to establish the case would undoubtedly be upon the prosecution but the nature and amount of evidence, to establish the charge, may be of a lesser degree or lighter character when the inmates of the house do not give cogent explanation as to how the crime was committed by keeping quiet or by offering no explanation. The traditional rule relating to burden of proof on the prosecution cannot be wrapped in pedantic coverage, ignoring the factual matrix in the case in question. It was accordingly observed that where the prosecution succeeds in leading evidence and establishes that, shortly before the commission of the crime accused and her wife were together in the dwelling house, therefore, presence of the accused is established and no or false explanation is offered regarding how the deceased received SC No.02/13 Page 57 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu injuries, it can be incriminating and strongly pointer towards the accused being responsible for the said offence. Reference was made to earlier judgments in State of West Bengal vs. Mir Mohammad Omar AIR 2000 SC 2988, wherein it has been observed as under: "The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference"
17. In Sanjay Anand vs. State in Crl. A. 861/2004, decided on 23rd March, 2010, reliance was placed upon decision of the Supreme Court in Dasari Siva Prasad Reddy v The Public Prosecutor, High Court of A.P. AIR 2004 SC 4383 and Siddaiah @ Sundi v State of Karnataka JT 2002 (6) SC 477, and it was submitted that ratio of the said decisions is contrary to the ratio in Mir Mohammad's case (supra) and Trimukh's case (supra). The Division Bench observed that there were fundamental differences in SC No.02/13 Page 58 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu the facts of Siddaiah's case (supra) and the case before them relating to conviction of Sanjay Anand. In Siddaiah's case (supra) there was no evidence that the accused was present in the afternoon when the deceased died whereas in the case before the Court, the accused had admitted his presence. Accordingly, it has been held by the Division Bench in Sanjay Anand's case(supra) that when the deceased had a homicidal death in the house, which was in possession and occupation of the accused, some explanation was required from the accused when it was established that the accused was present and there were no signs of forced entry or presence of intruder and his conduct was otherwise suspicious. Dasari's case was distinguished on the ground that the evidence did not give rise to irresistible inference that the accused therein was present in his house at the time of death of the deceased and the accused must have alone committed the murder. In the said case, the Division Bench convicted the accused after noticing that conclusion of facts raised reasonable inference that the appellant had murdered the deceased therein.
86. The situation which arises now is that the accused Latif @ Dallu was present alone in his house near the dead body of his wife when the PCR officials reached there. The death of SC No.02/13 Page 59 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu the deceased Shama has taken place in the dead of night. This is that time of the day when the husband is normally expected to be at this house by the side of his wife. It was for the accused to explain to the court how he came to know about the death of his wife and in what circumstances, she was murdered and by whom, if in fact, he did not kill her. No such explanation has come forward from the accused. He had an opportunity to explain the circumstances in which his wife got killed, in his statement under section 313 Cr.PC. The accused, while denying the incriminating circumstances put to him during his examination under section 313 Cr.PC only stated that he is innocent and has been implicated falsely in this case. He does not even day that he was not present in his house during the night of the incident. It has been held by the Supreme court in Trimukh Marooti Kirkan (supra) that where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be on the prosecution but the nature and amount of evidence to be led by it to establish the charge cannot be on same degree as required in other cases of circumstantial evidence. The burden would be of comparatively too lighter character. In view of section 106 of Evidence Act, there should be a corresponding burden on the inmates of the house to give a cogent explanation as to how the SC No.02/13 Page 60 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu crime was committed. The inmates of the house cannot kept away by simply keeping quiet and offering to explanation on the supposed premise that the burden to establish its case lie entirely on the prosecution and there is no duty at all on the accused to offer any explanation.
87. In my opinion the prosecution in the instant case has successfully established the presence of accused in his house when the murder of his wife was committed. It was for the accused to explain to the satisfaction of the court as to how and in which manner his wife was got killed and by whom. Since there is no explanation at all coming forth from the accused in this regard, the only logical conclusion which follows is that it is the accused himself, who murdered his wife i.e deceased Shama.
88. So far as offence under section 498A/304 B IPC is concerned. There is no evidence on record to infer that accused has committed the said offences against the deceased as neither PW8 Babu Khand nor PW10 Yakub Ali has leveled any allegation against the accused that he had harassed the deceased for dowry so soon before her death either in the court while deposing under oath or in their statements recorded by SC No.02/13 Page 61 of 62 SC No.02/13 FIR No.212/12 PS: Chhawla State Vs.Latif @ Dallu Ld. SDM. Therefore, prosecution has failed to prove that the accused has committed the offence under section 498A/304 B IPC and accused is hereby acquitted of offence under section 498 A/304 B IPC.
89. For the aforesaid reasons, I am of the opinion that the prosecution has been successful in proving the charge against the accused. The accused is liable to be convicted and is hereby convicted for having committed the offence punishable under section 302/201 IPC.
90 Put up for order on sentence on Announced in the open court (Vijay Kumar Dahiya) on the 21 Day of October 2013 ASJ/ Dwarka Courts st New Delhi/21/10/2013 SC No.02/13 Page 62 of 62