Delhi District Court
State vs Rachna on 14 August, 2023
IN THE COURT OF ASJ (FTC)-02, SOUTH DISTRICT,
SAKET COURTS
PRESIDED OVER BY : SH. VISHAL PAHUJA
CNR No. DLST01-000464-2013
SC NO. 7124/16
STATE V. RACHNA
FIR NO. 432/13
PS: MALVIYA NAGAR
U/S: 302/203 IPC
State
Versus
Rachna,
w/o Sh. Deepak Kumar,
r/o H.no. R-39, Ground Floor,
Flat no. 2, Khirki Extn,
Malviya Nagar,
New Delhi. .... Accused
DATE OF INSTITUTION : 27.11.2013
DATE FOR RESERVING JUDGMENT : 11.08.2023
DATE OF JUDGMENT/ ORDER : 14.08.2023
FINAL ORDER : Acquitted
JUDGMENT
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. Brief facts of the case are that on 29.08.2013 on the receipt of DD no. 46A regarding quarrel, ASI Suresh Chand reached at the spot i.e. H.no. R-39, Khirki Extension, New Delhi. Blood was lying in the lobby of Flat no. 2, ground floor and the household articles of both the rooms was lying scattered. Upon inquiry, it transpired that two woman were injured in the incident and they have been taken to JPN Apex Trauma Centre AIIMS through PCR vans. Sub Inspector SS Yadav along with HC Ramvilas from PS Malviya Nagar reached at the AIIMS Trauma Centre where they got MLC no. 385866 of injured Ms. Rachna and another MLC no.
FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 1 OF 42 385868 of Ms. Madhu was received who was found to be declared dead.
2. The FIR was registered on the statement of purported victim Ms. Rachna. As per her version, on 29.08.2013 her mother- in-law Smt. Madhu (deceased) went to the shop of his elder son Sanjeev and reached back home at about 03.15 PM and told her that one person who was their neighbourer in the old house in Chirag Delhi will come to home to invite for some function. Thereafter, Rachna on the instructions of Madhu went to nearby grocery shop and brought Limca. Rachna further stated that on that day she along with her husband and mother in law were supposed to deposit the gold jewellery in the locker but as the mother in law came late the visit to the bank was cancelled. At about 05.00 PM her mother-in-law went to her room and rested and Rachna went to her room for rest with her daughter Pari. It is at about 05.30 PM, her mother-in-law called her to the room where one person holding helmet, gloves and having black colour cloth around his neck was sitting. He was wearing dark colour pant and check shirt of height 5 feet 6 inch tall and was looking to be in hurry. Rachna brought apple in a plate along with knife to her mother-in-law and she introduced her to the said person. Rachna stated that the person asked her whether you have deposited the gold in the locker or not and she thought that this fact might have been told to him by her mother in law. In the meantime, the said person suddenly stood and gave knife blows on the left arm and left foot of Rachna and when her mother-in- law shouted and pushed him, he took out some heavy weapon from his laptop bag and hit upon the head of her mother in law FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 2 OF 42 and the blood starting oozing out from her head. Rachna tried to intervene and then immediately ran to her room and bolted it from inside. It is further alleged by Rachna that the person knocked the door but she did not open the same and she shouted for help but nobody came. She tried to call her husband Deepak, her brother Sunny and her mother but due to poor signal she could not talk to them and then she dropped messages to Sunny and Deepak. On this statement, present FIR was registered u/s 302/394/323 IPC .
3. During the investigation, husband of the accused namely Deepak revealed to the investigating officer about the extra judicial confession made by her wife Rachna, regarding committing of murder of deceased Madhu by her. As per him, accused Rachna had an argument during the day with her mother in law and she was hit by footwear (chappal) by the deceased which angered her to the extent that Rachna took out the hammer and hit the deceased on her head. Due to fear she had cooked up the false story before the police and not narrated the true facts. Accordingly, the investigation took place and various statements of the witnesses including the disclosure statement of accused was recorded and at her instance the blood stained clothes were recovered and seized. Various other exhibits were also seized including weapon of offence. Rachna was arrested in this case. After the conclusion of the investigation carried out in the FIR no. 432/13, police filed the charge sheet against the accused Rachna for commission of offences U/s 302/182 IPC.
FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 3 OF 42
4. Vide Order dated 27.11.2013, Ld. Metropolitan Magistrate concerned took cognizance of the offences u/s 302/182 IPC and accused was called upon to face the trial. Accordingly, she was supplied with the charge sheet and other relevant documents in compliance to section 207/208 Code of Criminal Procedure (hereinafter referred as Cr.P.C.). Thereafter, the present matter was received by way of committal to the Court of Sessions on 02.01.2014. During trial, supplementary charge sheet was filed qua FSL result on 06.08.2014. Copy of the same was also supplied to the accused.
CHARGE
5. Vide order dated 13.02.2014, charge for the offences punishable u/s 302/203 IPC was framed by the Ld. Predecessor of this Court against the accused Rachna to which she pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
6. Prosecution examined total 29 (twenty-nine) prosecution witnesses (hereinafter referred to as PW) to prove its case.
7. PW-1 Smt. Radhika was the shopkeeper who runs a general store at R-36 Khirki Extension, Malviya Nagar along with her son Bablu Dhingra. PW1 deposed that on 29.08.2013 between 3-4 PM, accused came to their shop to buy Limca and she was wearing pink colour salwar and white kurta with blue prints.
FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 4 OF 42 Statement of PW1 was recorded as Ex. PW1/A. PW1 was cross examined on behalf of accused.
8. PW2 Sh. Bablu Dhingra deposed more or less on the same lines as that of PW1. PW2 further deposed that on 29.08.2013 at about 06.00 PM, he returned to the shop and at that time her mother i.e. PW1 told him that accused had taken Limca from PW1 in between 03.30 PM to 04.00 PM. Statement of PW2 was recorded as Ex. PW2/A. PW2 was cross examined on behalf of accused.
9. PW-3 Smt. Sushil Verma was the neighbour who deposed that on 29.08.2013, she had gone to attend kirtan in her neighbouring house i.e. R-38, and while she was sitting there she received a phone call from Smt. Neeraj r/o Flat no. 1 of R-39 to open the door of her flat which was bolted by somebody from the outside. PW-3 further deposed that as she could not leave the kirtan she made call to the accused twice to open the door of neighbour but she did not pick up her call on both occasions. PW- 3 Smt. Sushil Verma further deposed that after about 25-30 minutes, she again received call from Smt. Neeraj, who told her that some incident had occurred on the ground floor of the building and called her to come immediately. PW-3 further deposed that at around 06:00 - 06:15pm, she entered in flat no. 2, R-39 of accused alongwith Ms. Neeraj and noticed that the mother-in-law of accused namely Smt. Madhu was lying on the floor in the drawing room in sleeping condition and she was not responding. PW-3 noticed blood was lying on the floor and accused was inside her room, which was bolted from inside. PW-3 FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 5 OF 42 further deposed that she made call to the police and her husband to come at house immediately as incident had taken place there. Statement of PW3 was recorded as Ex. PW3/A. PW3 was cross examined on behalf of accused.
10. PW4 HC Rajinder was the PCR official of vehicle Eagle 16 who upon receiving the wireless message from PHQ on 29.08.2013 at 06.18 PM reached at Khirki Extension R39 and found one old lady lying on the floor and blood was oozing from her head and she appeared to be dead. PW4 gave the said information to control room and took the lady to Trauma Centre by PCR van where she was declared dead by the doctors. PW4 was cross examined on behalf of accused.
11. PW5/PW12 Dr. Sameer Vankar proved and exhibited on record the MLC no. 385868 dated 29.08.2013 of deceased Madhu as Ex. PW5/A. The computer generated copy of Code Blue Protocol of aforesaid patient is Ex. PW5/B. This witness also proved and exhibited on record MLC no. 285866 of accused / patient Rachna as Ex.PW12/A. This witness was cross examined on behalf of accused.
12. PW6 Dr. Munish Sharma deposed that on 29.08.2013 a written application was submitted by Insp. Vijay Pal to get subsequent opinion about the injuries over the body of accused Rachna. The said application is Ex. PW6/A. PW6 further deposed that after going through the MLC no. 385866 dated 29.08.2013 of accused Rachna, he gave subsequent opinion. Same is Ex. PW6/B. FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 6 OF 42 PW6 was cross examined on behalf of accused.
13. PW7 Dr. S.K. Chaudhary, Senior Scientific Officer (Physics Division), CBI, deposed that on 30.08.2013 he alongwith two other officials visited at the spot i.e. flat no. 2, ground floor, house no. R-39 and inspected the same and exhibited his report on record as Ex. PW7/A. PW7 was cross examined on behalf of accused.
14. PW-8 Ms. Neeraj, the next door neighbour of accused deposed more or less on the same lines as that of PW3 Smt Sushil Verma. PW8 was cross examined on behalf of accused.
15. PW9 HC Satish Chand was the PCR official of Vehicle Eagle 14 who took the injured Rachna to Trauma Centre and got her admitted there. As per this witness when he reached at the spot, he found accused Rachna in semi conscious state and while she was being taken to the trauma centre, she regained consciousness on the way and told him that 3-4 boys entered into their house and they were known to her mother in law and they caused injury to her mother in law. She further told him that when she tried to save her mother-in- law, the assailants also caused injury to her. PW9 further deposed that he passed on the aforesaid information to PCR from time to time and left the hospital at about 07.00 PM. PW9 was cross examined on behalf of accused.
16. PW 10 HC Parmanand was the duty officer who proved and exhibited on record the DD enteries i.e. DD no. 46-A FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 7 OF 42 as Ex. PW10/A, DD No. 101-B as Ex. PW10/B, DD no. 107-B as Ex. PW10/C and DD no. 118 as Ex. PW10/D. PW10 also exhibited on record the rukka prepared by SI S.S. Yadav as Ex. PW10/E. FIR got registered and the copy of FIR is Ex. PW10/F. PW10 further exhibited on record DD no. 58A and 61A which were recorded in connection of registration of FIR and departure of special messenger as Ex. PW10/G and Ex. PW10/H respectively. PW10 further proved and exhibited on record DD no. 4B dated 30.08.2013 as Ex. PW10/I. PW10 was cross examined on behalf of accused.
17. PW-11 Sh. Sanjeev Dawar is the brother-in-law of the accused who deposed that on 29.08.2013 on receipt of telephonic call of his brother Deepak, he reached at the spot and noticed that his mother was lying on the floor. PW-11 further deposed that he heard a noise from one room of the said flat and he reached to the door of that room and the said room was locked from inside and accused was inside that room and was saying "maar diya, maar diya, mummy ko maar diya". PW-11 further noticed injuries on the head of his mother and also noticed blood on her nose and mouth. PW-11 further deposed that the mother of accused asked her to open the door of the room, then accused opened the same and at that time, accused was holding her minor daughter in her arms and she immediately handed over her minor daughter either to her mother or to the brother of PW-11 and immediately thereafter, accused fell down in the room. PW11 identified the dead body of her mother vide dead body identification memo Ex. PW11/A and the receipt of cremation of her mother is Ex. PW11/B. PW11 was cross examined on behalf of accused.
FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 8 OF 42
18. PW13 W/Ct. Geeta deposed about her limited role in the investigation as this witness accompanied the accused to Trauma Centre and in her presence she was medically examined by the doctor. PW13 was cross examined on behalf of accused.
19. PW14 W/Ct. Madhubala proved and exhibited on record the PCR form as Ex. PW14/A. PW14 was not cross examined on behalf of accused.
20. PW15 HC Ram Vilas deposed qua his limited role in the investigation as he was handed over the tehrir by SI SS Yadav and he took the same to the police station and got the FIR registered and handed it over to Insp. Vijay Singh at the spot. PW15 was cross examined on behalf of accused.
21. PW16 Sh. B. Magesh Krishna Ratnan is the finger print expert, CFSL who inspected the place of incident and prepared the report Ex. PW16/A. As per this witness, no identifiable chance prints could be detected/developed from the articles lying in the said house. PW16 was not cross examined on behalf of accused.
22. PW17 Ct. Manoj Balhara proved and exhibited on record copy of road certificate as Ex. PW17/A vide which he deposited the mobile phone in FSL Rohini. PW17 was not cross examined on behalf of accused.
FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 9 OF 42
23. PW18 Ct. Babu Lal was the Special Messenger who delivered the copy of FIR to the senior police officials as well as the Ld. Metropolitan Magistrate concerned. PW18 was cross examined on behalf of accused.
24. PW19 Smt. Vijay Laxmi deposed qua the limited fact of having organized kirtan at her house on 29.08.2013 from 04.30 PM to 06.00 PM. PW19 was cross examined on behalf of accused.
25. PW-20 Sh. Deepak Dawar is the husband of accused and the star witness of the prosecution who deposed that he got a job at Hyderabad and had to shift there by 20.09.2013. He further deposed that all the jewellery kept in the house was to be deposited in the locker before leaving for Hyderabad and this fact was known to him, his deceased mother and accused. PW-20 further deposed that on 29.08.2013 at about 05:45 pm, he received a message from accused on his mobile where only one word "bachao" was written and he tried to get in touch with accused telephonically but the phone was not picked up by the accused. PW20 further deposed that at around 06:15pm, when he reached his house, he found his mother lying in the drawing room in the same posture in which she used to sleep and blood was spread and his mother was having injury on her head. He further deposed that her room was ransacked and the blood stained hammer was also lying in the said room. PW-20 further deposed that mother in law of the accused was trying to have the other room opened which was locked from inside by the accused and she opened the door FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 10 OF 42 and upon seeing him she instantly fell unconscious. Accused and the mother of PW20 were taken to hospital by the PCR officials.
26. PW20 further deposed that the police officials remained at the spot till 11.00 PM and thereafter they took him to PS Malviya Nagar where his statement was recorded. PW20 further deposed that at about 02.30 AM police accompanied him to his house and asked him to check if the jewellery and cash amounting to Rs. 1,25,000/- were intact and the same was found intact kept in a drawer of the dressing table. PW20 further deposed that he along with his brother was called to Police station in the next morning from where he visited Trauma Centre, AIIMS and identified the dead body of his mother vide Ex. PW20/B. PW-20 further deposed that he along with his wife Rachna, mother in law, his brother Sanjeev were called by the police at police station at 07.30 PM and before leaving for the Police Station, accused confessed to him that she had an argument with the deceased during the day and she was hit by footwear by the deceased and in anger accused took out the hammer and hit the deceased on her head. PW-20 further deposed that the accused due to fear cooked up a false story and told it to the police. PW-20 further deposed as he was in the state of shock on account of death of her mother so he could not disclose all the facts revealed by the accused initially but in the late evening he told everything to the police as told by accused.
27. PW20 further deposed that on the next day, police seized the mobile and clothes of accused having blood stains in his presence i.e. blue print kurta and pink salwar vide seizure FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 11 OF 42 memo Ex. PW20/C and Ex. PW20/D respectively. PW-20 further exhibited her mobile phone seized vide seizure memo exhibited as Ex. PW20/E. It is further deposed that on 31.08.2013 police arrested accused vide memo Ex. PW20/F. PW-20 also identified the jewellery in photographs as Ex. P1, Cash in photographs as Ex. P2, her clothes as Ex. P3, her mobile phone as Ex. P4, blood stained hammer as Ex.P5. PW20 correctly identified the accused before the court during trial. PW20 was cross examined on behalf of accused.
28. PW21 Insp. Mahesh Kumar is the draftsman at Crime Branch who proved and exhibited on record the scaled site plan as Ex. PW21/A. PW21 was cross examined on behalf of accused.
29. PW22 SI Shambhu Nath deposed that on 29.08.2013, he was informed by the duty officer to reach at the spot i.e. H.no. R-39, Ground floor, Khirki Extension, Malviya Nagar as there was a call that two women had been injured. As per PW22, when he reached at the spot police officials including SHO Insp. Vijay Pal were already present there. The mobile crime team, dog squad and CBI CFSL team were also called at the spot. PW22 further deposed that the SHO alongwith other police staff went to hospital leaving him behind to safeguard the scene of crime. PW22 further deposed that CFSL, mobile crime team inspected the spot and on their instructions Insp. Vijay Pal lifted the exhibits such as blood stained sofa pillow, blood sample in vial, hair strands and one vegetable cutting knife. All the said exhibits were taken into possession vide seizure memo Ex. PW22/A. PW22 relied upon the document already exhibited on record by PW20 in his FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 12 OF 42 testimony as Ex. PW20/A vide which other articles were seized. PW22 also exhibited on record the memo Ex. PW22/B vide which blood stains, one of guaze and the other on cotton swab and broken glass pieces were lifted from the spot.
30. PW22 further deposed that on 31.08.2013, accused was called in PS and she was interrogated by IO in his presence and she was arrested vide memo already Ex. PW20/F and her personal search conducted by W/Ct. Rekha was exhibited vide memo Ex. PW22/C. PW22 further deposed that accused made disclosure statement qua committing of murder that is exhibited as Ex. PW22/D. PW22 further deposed that at the instance of accused she got recovered her salwar from her bedroom and one blue printed kurta of white colour that was stained with blood which were sealed and seized vide seizure memo already Ex. PW20/D and Ex. PW20/C respectively. PW22 identified the accused before the court during trial. PW22 identified the case property. PW22 was cross examined on behalf of accused.
31. PW23 W/Ct. Rekha deposed more or less on the same lines as that of PW22 and relied upon documents exhibited on record by PW20 and PW22. PW23 correctly identified the accused before the court during trial. PW23 correctly identified the case property. PW23 was cross examined on behalf of accused.
32. PW24 Sh. Ravi Nijhawan was the relative (mama) of accused who deposed that on receiving the information about FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 13 OF 42 some problem in the house of accused, he reached at the spot where the accused was not found present while her mother in law Madhu was lying dead on the floor. PW24 further deposed that the husband of accused Deepak and Sanjeev were sitting on the floor. PW24 further deposed that he came to know that accused Rachna has been taken to hospital whereupon reaching he found her under treatment and in unconscious state. PW24 further deposed that in the late evening Rachna was send along with him and he took her to her matrimonial house where police officials seized jewellery and cash of Rs. 1,25,000/- from the room of Rachna. He identified his signatures on the memo already Ex. PW20/A. This witness identified the jewellery and other case property in the court. PW24 was cross examined on behalf of accused.
33. PW25 Dr. Sarabjit Singh Sandhu, Sr. Scientific Officer (Biology Division) proved and exhibited on record the serological report as Ex. PW25/A. PW25 was cross examined on behalf of accused.
34. PW26 Insp. S.S. Yadav deposed more or less on the same lines as that of PW15 HC Ram Vilas and PW22 SI Shambhu Nath. PW26 relied upon the documents already exhibited on record by PW20 and PW22 in their testimony. In addition to that PW26 exhibited on record the statement of Rachna as Ex. PW26/A and the endorsement made upon the same by him as already Ex. PW10/E. This witness also exhibited on record the seizure memos of the clothes of accused Rachna as Ex. PW26/B, blood in gauze and sample seal through seizure memo Ex. PW26/C. PW26 identified the accused before the court during FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 14 OF 42 trial. PW26 identified the case property. PW26 was cross examined on behalf of accused.
35. PW-27 Dr. Virender Singh, Assistant Director (documents) FSL proved and exhibited on record his examination report as Ex.PW27/A, computer forensic unit and DVD as Ex.PW27/B and Ex. PW27/C. PW27 was cross examined on behalf of accused.
36. PW-28 ASI Genda Lal was the MHC(M) who exhibited on record the entries pertaining to depositing of Case property of the present case as Ex. PW28/A to Ex. PW28/C. He also relied upon document already exhibit Ex. PW17/A. PW28 was not cross examined on behalf of accused.
37. PW29 Insp. Vijay Pal who is the Investigating Officer in the present case deposed qua the manner and his involvement in the investigation. PW29 also deposed more or less on the same lines as that of PW22 and PW26. PW29 also relied upon documents already exhibited on record by PW10, PW22, PW20, PW26 and PW6. PW29 in addition to that, also exhibited on record the death report as Ex. PW29/1, 20 photographs taken by the crime team photographer as Ex. PW29/P1 (Colly) and 3 photographs pertaining to injury marks on the body of accused as Ex. PW29/P2. PW29 was cross examined on behalf of accused.
38. During trial accused admitted document i.e. postmortem report no. TC-554/13 of deceased Madhu as Ex. A1 u/s 294 FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 15 OF 42 Cr.P.C.
39. No other PW was left to be examined, hence PE was closed.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
40. Statement of accused was recorded separately U/s 313 Cr.P.C in which all the incriminating circumstances appearing in evidence were put tobeen made witness her. The accused controverted and denied the allegations levelled against her. Accused stated that her relations with her mother in law were very cordial just as that of real mother and daughter. It is the reason that she always resided with her only and never resided with her elder son who was also living nearby. After marriage her husband Deepak told accused that he was intending to marry one Ritu who was the younger sister of her sister in law i.e. wife of Sanjeev, the elder brother of her husband Deepak but her mother in law was against that. Accused further stated that it is possible that Deepak along with his brother Sanjeev and his wife had hatched a conspiracy against accused in order to falsely implicate accused and to get rid from her and after this incident Deepak has also abandoned their daughter and also filed divorce petition on this ground. Accused opted not to lead any defence evidence.
FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 16 OF 42 ARGUMENTS:
41. Ld. Additional PP for State has argued that prosecution witnesses have stood the test of cross examination and have remained consistent throughout proving the case of the prosecution beyond reasonable doubt. That on a combined reading of testimony of prosecution witnesses, the complete chain of circumstances have been established that proves the guilt of accused. Hence, offences U/s 302/203 IPC are proved against the accused beyond reasonable doubt.
42. On the other hand, Ld. Counsel for accused have stated that there is no legally sustainable evidence against the accused. It is further argued that the testimony of the star witness who is the husband of the accused cannot be read against her being hit by the bar of section 122 of the Indian Evidence Act. It is further argued that even the recovery of the blood stained clothes of the accused have also not been proved beyond reasonable doubt and they were planted to falsely implicate the accused. Lastly, it is submitted that the prosecution has also failed to establish the motive, hence, the complete chain of circumstances could not be established. Thus, accused is entitled to benefit of doubt, hence, she deserves to be acquitted.
FINDINGS:
43. Arguments adduced by Ld. Additional PP for State and Ld. Defence Counsel for the accused have been heard. Evidences and documents on record perused carefully.
FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 17 OF 42
44. I have bestowed my thoughtful consideration to the rival submissions made before me. Accused has been indicted for the offence of murder u/s 302 IPC and section 203 IPC. Section 302 IPC provides punishment for committing the offence of murder with death or imprisonment for life, and shall also be liable to fine. Section 203 IPC provides for punishment for giving false information respecting an offence committed.
45. Since the case of the prosecution is based on the circumstantial evidence, it would be apt to have a look on the law in this regard. Hon'ble Apex Court, in its much-celebrated judgment of Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, held that while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established.
"153. xxx xxx (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not "may be" established;
(2) 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, (3) The circumstances should be of a conclusive nature and tendency, (4) They should exclude every possible hypothesis except the one to be proved, and FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 18 OF 42 (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused".
A similar view has been reiterated by the Hon'ble Supreme Court in State of UP v. Satish (2005) 3 SCC 114 and Pawan v. State of Uttranchal (2009) 15 SCC 259.
46. The aforesaid five cardinal principles have been reiterated by the Hon'ble Supreme Court of India in numerous judgments. Therefore, the principle, as laid down in aforesaid judicial dicta, is that in cases based on circumstantial evidence, circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. The various circumstances in the chain of events must be such so as to rule out the reasonable likelihood of innocence of accused. The missing of important link snaps the chain of circumstances and the other circumstances cannot in any manner establish guilt of accused beyond all reasonable doubts.
47. Keeping these conditions in mind and in light of the aforesaid guiding principles of law, this court shall now proceed with the case in hand and shall give findings with respect to each of the circumstance.
FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 19 OF 42 EXTRA JUDICIAL CONFESSION MADE BY ACCUSED TO HER HUSBAND DEEPAK .
48. Ld. Additional PP for the state has submitted that the accused confessed her crime before her husband after the incident and her husband namely Deepak has been examined as PW20 in this case whose testimony is a clinching piece of evidence that proves the aforesaid circumstance. Ld. Additional PP for the state has submitted that the section 122 of the Indian Evidence Act will not imply any bar on considering the aforesaid communication as PW20 Deepak is the victim himself as his mother has been murdered by the accused. On the other hand, Ld. Defence Counsel has submitted that the testimony of PW20 Deepak is a tainted testimony which cannot be relied upon and the extra judicial confession which otherwise not made by the accused is a weak piece of evidence. Further the same is hit by section 122 of the Indian Evidence Act being privileged communication made during the existence of marriage between accused and the witness Deepak and is therefore not admissible in the eyes of law. In support of his arguments, Ld. Counsel for the accused has relied upon following judgments:
(i) Nikhil Chandra Mondal v. State of West Bengal, [Crl.
A No. 2269/2010) passed by Hon'ble Supreme Court of India.
(ii) Radhanath Tanti v. State of Assam (Crl. A(J) 43/2019] passed by Guwhati High Court.
(iii) Pradeep Kumar v. State of Chhattisgarh, (Crl. A No. 1304/2018] passed by Hon'ble Supreme Court of FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 20 OF 42 India.
(iv) Mr. Vilas Raghunath v. The State of Maharashtra, [Crl.
A No. 152 of 2022, Crl. A No. 82/2003].
(v) M.C. Verghese v. T.J. Ponnan and Anr. [1970 AIR 1876, 1969 SCR (2) 692].
(vi) Anupam Yadav v. State of Orissa, JCRLA no. 141 of 2004.
49. Now coming to the aspect of extra judicial confession of accused made to her husband PW20 admitting her guilt. The first contention of defence is that the same is being privileged communication is hit by Section 122 of Indian Evidence Act.
Section 122 of Indian Evidence Act says Communications during marriage--No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.
50. In this case, PW20 Deepak is husband of accused but he is son of deceased also. The present situation falls under the exception of Section 122 of The Indian Evidence Act as the proceedings against the accused are against her husband being legal heir of deceased and he is victim in this case. In the context FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 21 OF 42 of Cr.P.C. if accused herein is exonerated, the victim Deepak has the right to challenge the order of the Court. Therefore, the contention of defence that the extra judicial confession made by accused to her husband Deepak shall be hit by Section 122 of The Indian Evidence Act is not tenable. The judgments relied upon by accused in this regard do not apply in this case being distinguishable on facts and circumstances of this case.
51. Now coming to second aspect that whether the extra judicial confession is proved on record by way of testimony of PW20. At the outset, it is to be noted that extra judicial confession is a very weak piece of evidence and conviction cannot be based solely upon extra judicial confession and it needs to be corroborated by other independent cogent evidence. In light of the same, now this court proceed to discuss the veracity of testimony of Deepak, husband of accused who stepped in the witness box as PW20 and whether he was able to prove the extra judicial confession made by the accused to him.
52. During the cross examination, PW20 stated that after the incident he met accused for the first time in the early morning of 30.08.2013 at her father's place in the presence of her family members so there was no occasion for the accused to make extra judicial confession to her husband and nor it is the claim of PW20 that she told him in front of all her family members. Further, during cross examination PW20 stated that Rachna was present at Sanjeev's place for sometime between 3-5 PM on 30.08.2013 and during the cremation process she fell unconscious and was taken inside the house of Sanjeev. PW20 stated that he was busy with FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 22 OF 42 cremation of his mother. Nowhere, PW20 stated that during that period Rachna made any confessional statement to him.
53. PW20 during his cross examination stated that his first statement was recorded by police on 29.08.2013 at his residence and second statement was recorded in the evening of 30.08.2013 after the cremation and he was not aware if any other statement was recorded by police. Admittedly, first 161 Cr.P.C. statement of PW20 was recorded dated 30.08.2013 and 2nd is that of 31st August which goes contrary to the claim of PW20. As per the testimony of PW20 himself he and accused did not stay together after the incident and separately visited the police station for the purpose of investigation. It is also made out from the fact that PW20 admitted to have moved to his brother's place after the incident and remained there for about one month. It was therefore not possible to believe PW20 when he said that before leaving for police station on 30.08.2013 his wife confessed her crime to him. Meaning thereby, there was no occasion shown on record when the accused and Deepak met each other and the accused made confessional statement to him. More over in his cross examination PW20 stated that his wife confessed her crime to him before leaving for police station but he did not disclose the same to police at first place and it is only in the late evening he again went to police station and told the facts to the IO. It is to be noted that none of PW has initially suspected the involvement of accused in this case. In the entire testimony of PW20 nowhere it has been stated that as to where or at which place the accused made extra judicial confession to him. In view of the discussion above, it cannot be safely concluded that accused made extra judicial FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 23 OF 42 confession to her husband PW20 nor the circumstance could be established beyond reasonable doubt.
RECOVERY OF CLOTHES OF ACCUSED HAVING STAINS OF BLOOD OF DECEASED.
54. The prosecution has relied upon the recovery of kurta of the accused having blood stains that is exhibited as Ex. PW20/C which connects the chain of circumstances. Ld. Additional PP for the state has submitted that the accused did not have the opportunity to dispose of her blood stained kurta as the police sealed the house of the accused on the date of incident itself and subsequently during the investigation seized the kurta. This also establishes one of the key circumstance connecting the accused with the offence. On the other hand, Ld. Defence counsel argued that the recovery of the kurta has not been established beyond reasonable doubt nor the same could be established being the kurta of the accused. Ld. Defence counsel pointed out statements of PW20 and PW23 made during their cross examination whereby signature of these witnesses were admittedly appended in the police station and not at the spot so the seizure of the kurta itself is doubtful. Hence, this circumstance could not be established by the prosecution nor it could be made a ground for conviction. In support of his arguments, Ld. Counsel for the accused has relied upon following judgments:
(i) Ishwarbhai Makwana v. State of Maharashtra (Crl. A No. 292/2005) passed by Bombay High Court.
(ii) Prabhoo v. State of Uttar Pradesh (Crl. A No. 50/1962) FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 24 OF 42 passed by Hon'ble Supreme Court of India.
55. The aforesaid circumstance was required to be established on two counts. One, that the kurta exhibited as Ex. PW20/C actually belonged to the accused and secondly, the same has been seized at the instance of accused. As far as first aspect is concerned, admittedly no DNA test or any such scientific test has been conducted in this case to show that the kurta was ever worn by the accused or it belonged to her. Similarly, no photograph of the accused wearing the said kurta ever been taken prior to the incident that could be adduced in evidence by the prosecution to show that it belonged to the accused. During cross examination, PW9, the Investigating Officer admitted that the ladies clothes found lying there in house did not have distinct mark to differentiate that which one belongs to accused Rachna and which belonged to deceased. Even the husband of accused PW20 has also nowhere in his testimony stated that the kurta in question belong to his wife. The only evidence to prove this fact was led by the prosecution was in the form of testimony of PW1 Radhika and PW2 Bablu Dhingra, owners of a general store from where the accused bought Limca on the date of incident. As per the prosecution the aforesaid witnesses identified the seized clothes as the clothes of the accused that she was wearing on the date of incident.
56. PW1 Radhika was cross examined by the accused. During her cross examination, this witness stated that she cannot say whether accused was wearing any chunni or not. She further FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 25 OF 42 stated that she cannot recollect what her son Bablu was wearing on 29.08.2013 giving reason that her mind does not work that much. She could not even tell the colour or type of clothes children were wearing who visited her shop on the date of incident giving reason that she do not pay much attention as she had to look after her counter from where people come to buy the things. Now in view of the aforesaid statements it is difficult to believe that a witness who remembers specifically about the clothes worn by the accused on the date of incident but she could not tell the same for her son or other customers who visited her shop at the date of incident. Further, the height of the counter as stated by the witness is around 3 feet so it cannot be said to be possible for a person specially of the age of 65 years to look the colour of salwar worn by the accused which is otherwise cannot be visible over the counter and remembers the same after such a long period as well. In her examination in chief, PW1 stated that her son was also present at the relevant point of time when accused had come to her shop to buy Limca whereas she denied this fact during her cross examination. In addition, to the same this witness further admitted in her cross examination that when accused Rachna came to the shop there was none in the shop beside PW1 which also falsifies her claim of her son being present at the shop. The discrepancies discussed above in the testimony of PW1 washes away her credibility rendering her testimony unbelievable.
57. As far as testimony of PW2 Bablu Dhingra is concerned, this witness merely deposed that her mother told him about the visit of accused Rachna for buying Limca. During his cross examination, this witness was confronted with his previous FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 26 OF 42 statement recorded u/s 161 Cr.P.C. as Ex. PW2/A where he claimed to have been present at the shop along with his mother at the time when accused visited to purchase Limca on 29.08.2013. The testimony of PW2 does not prove in any manner the clothes seized in this case belongs to accused Rachna, hence, it is of no help to the case of prosecution. Most importantly the seized clothes were not shown to PW1 and PW2 during the testimony for the purpose of identification. In view of the discussion above, it can safely be concluded that the first aspect that the kurta seized vide seizure memo Ex. PW20/C does not get proved to be that of accused beyond reasonable doubt.
58. Now coming to the second aspect as to whether the seizure of the kurta at the instance of accused has been proved on record or not. As per the case of the prosecution, the blood stained kurta was seized from the house of the accused. The seizure memo Ex. PW20/C was exhibited in the testimony of PW20 Deepak, husband of the accused. However, during the cross examination of PW20 this witness stated to have signed the aforesaid document at the police station and not at the spot and he further stated that Ex. PW20/C was prepared at police station. Similarly, the other witness to the said document is PW23 W/Ct. Rekha who also stated during her cross examination that she has signed the aforesaid document in the police station Malviya Nagar and she could not tell as to where the aforesaid document was prepared. During her cross examination she even denied the presence of PW20 Deepak at the place of incident when the kurta was seized by the IO. PW26 Insp. S.S. Yadav during his cross examination stated that neither Deepak nor his family members was present FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 27 OF 42 along with the police team that visited the place of incident on 31.08.2013. Meaning thereby the presence of Deepak at the place of seizure of kurta in question is completely doubtful. Now apart from PW20 Deepak no other public witness has joined the investigation at the time of seizure of kurta. In absence of any independent public witness and in view of the statement made by PW20 Deepak denying the seizure of kurta at the spot, a dent in the story of the prosecution is made qua the seizure of kurta.
59. During the arguments Ld. Defence Counsel raised the contention that the kurta in question was shown to have been seized on 31.08.2013 whereas four special teams i.e. crime team, dog squad and CFSL team (Physics Division) & Biology division has visited the spot of crime on the date of incident i.e. 29.08.2013 and on the next day i.e. 30.08.2013 but could not find the blood stained kurta and as admitted that the keys of the lock put on the premises was with the IO, who planted the kurta upon the accused on 31.08.2013 by showing to have been recovered from the house of the accused.
60. This court find merits in the aforesaid argument put forth by the Ld. Defence Counsel for the following reasons that in the testimony of PW7 Dr. S.K. Chaudhary who visited and inspected the crime scene on 30.08.2013 has admitted the key of the lock of the house was with police officials and as per his report Ex. PW7/A the inspection took place between 2.15 PM to 05.00 PM on 30.08.2023, the house was thoroughly searched for traces of physical evidence and even to the extent some pieces of FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 28 OF 42 glass and the blood stains were traced and found in the commode of the attached toilet of the accused. This is highly improbable to believe that the blood stained kurta which is later on recovered from behind the door of the same bathroom could not be traced by this witness or police despite thorough inspection of the place of incident. Similarly, a dog squad was also called on the spot on the date of incident as admitted by the Investigating Officer PW29 Insp. Vijay Pal but the said dog squad also could not trace out the blood stained clothes of the accused that were present in the same house on the date of incident when other exhibits were lifted and seized. The police witnesses during their cross examination stated that minute search was made in the house and even hair strand was also found with the help of CFSL teams but they failed to explain how the blood stained clothes could not be traced and seized in first two days and only seized after the husband of accused revealed about extra judicial confession to the police. In such circumstances, it is highly improbable to believe that the specialized teams could not trace out the clothes on the date of incident and even on the next day despite thorough inspection, therefore, the possibility of planting the same after two days of incident by the Investigating agency cannot be ruled out.
61. PW21 Insp. Mahesh Kumar was examined by the prosecution who visited the spot and prepared the scaled site plan as Ex. PW21/A. Even in his site plan, all the articles including the blood stained salwar of accused are found mentioned but there is no reference or whisper of the seizure of blood stained kurta. The evidence discussed above do not sufficiently and beyond reasonable doubt establishes the recovery and seizure of kurta FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 29 OF 42 vide seizure memo Ex. PW20/C at the instance of the accused. Hence, this circumstance of recovery of blood stained kurta belonging to the accused containing the blood traces of deceased cannot be said to be proved on record.
FORENSIC RESULT MATCHING THE BLOOD GROUP OF DECEASED WITH THE BLOOD DETECTED FROM THE CLOTHES OF ACCUSED.
62. Prosecution has relied upon the testimony of PW25 Dr. Sarabjit Singh Sandhu, Sr. Scientific Officer in which the FSL report was exhibited as Ex. PW25/A. As per the report, the blood group detected on the exhibit '13' i.e. ladies kurta seized during investigation matches with the blood group of the deceased as the same blood group was detected on the exhibit '10' i.e. the cloth piece received from AIIMS hospital that establishes another circumstance on record.
63. The aforesaid argument of the prosecution does not sustain in view of the finding given in the preceding paragraph with respect to the seizure of kurta and its connection to the accused that could not be established on record beyond reasonable doubt. Hence, this circumstance relied upon by the prosecution also could not be proved to be connected with the accused and her involvement in the crime in question.
FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 30 OF 42 RECOVERY OF WEAPON OF OFFENCE.
64. Prosecution has heavily relied upon the seizure memo Ex. PW22/A vide which the weapon of offence i.e. hammer Ex. P- 5 has been recovered from the house of the accused that contained blood stains. Ld. Additional PP for the state has submitted that PW20 Deepak has categorically identified the hammer that belonged to his father and was claimed to be as old as he himself was kept under the almirah in his room. Hence, this circumstance also formed part of the chain of circumstances that proves the guilt of accused. On the other hand, Ld. Defence Counsel raised the contention that no blood detected from the seized hammer was matched during forensic examination as per the report exhibited on record as Ex. PW25/A. Further, it is contended that the weapon of offence does not have any finger prints of the accused so the same cannot be said to be proved or connects as weapon of offence. Hence, this circumstance also could not be established.
65. As per the seizure memo PW22/A, the weapon of offence i.e. hammer Ex. P-5 was seized upon which the blood stains and some hairs were found stranded. At the outset, it is relevant to note that during the forensic examination blood was detected upon the exhibit '4' i.e. hammer however, it did not gave any reaction in order to ascertain whether the blood stains found on the hammer were that of the deceased. Further, there is no forensic examination report with respect to the hair found on the hammer in order to determine whether the hair belonged to or matched with the hair of the deceased which could have FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 31 OF 42 established that the deceased was attacked by the same hammer that have been seized in this case. Further, PW16 B. Magesh Krishna Ratnan, finger print expert from CFSL in his report Ex. PW16/A mentioned that after thorough examination no identifiable chance prints could be detected/developed from the articles lying in the said house. Meaning thereby, the finger print of the accused could not be detected on the hammer seized in this case to establish her connection in the commission of offence.
66. Neither the husband of the accused Deepak nor any other independent public witness has been made to join the proceedings as the document Ex. PW22/A i.e. the seizure memo does not bear their signatures and it is only signed by the police officials. Merely identifying of hammer by PW20 to be the same hammer that belong to him does not ipso facto fix the liability of the accused nor it could automatically gets proved to be a weapon of offence. The evidence coming on record does not attribute the role of accused in using the hammer seized in the case as weapon of offence. Above all, it has been opined by PW6 Dr. Munish Sharma in his testimony/report Ex. PW6/B that weapon of offence can be sharp/pointed whereas the hammer seized is a blunt weapon and cannot be termed as sharp weapon. In view of discussion above it can be safely concluded that recovery of hammer being weapon of offence has not been proved beyond any tinge of doubt. Accordingly, this circumstance also remained unproved.
FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 32 OF 42 ESTRANGE RELATIONS BETWEEN ACCUSED AND THE DECEASED BEING THE MOTIVE TO KILL.
67. Prosecution has relied upon the testimony of PW11 Sanjeev Dawar to show that the relations between the deceased and the accused were not cordial and they used to fight over trivial issues. Further, it is proved from the testimony of PW20 Deepak to whom the accused narrated the entire incident as in retaliation to the assault made by the deceased, accused killed her mother in law by hitting with the hammer. On the other hand, Ld. Defence Counsel argued that PW20 in his testimony admitted that there were normal relations between accused and the deceased so the same cannot be attributed as motive of killing. Ld. Counsel argued that the motive being one of the important circumstance is missing in this case hence, the chain of circumstance cannot be said to be completed. In support of his arguments, Ld. Defence counsel relied upon following judgments:
(i) Nandu Singh v. State of Madhya Pradesh (Crl. A No. 285/2022) passed by Hon'ble Supreme Court of India.
(ii) Babu v. State of Kerala [(2010) 9 SCC 189] passed by Supreme Court of India.
68. Motive may not be necessary in the case of direct evidence but in cases based upon circumstantial evidence the existence of motive becomes significant. Complete absence of motive definitely weighs in favour of the accused. It is an important circumstance which is relevant for assessing the evidence in the given facts and circumstance of the case. In this FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 33 OF 42 case, testimony of PW11 Sanjeev Dawar is relied upon to show that relation between accused and deceased were not normal so she might have killed her and secondly as per testimony of PW20 the confession made by accused to him also proves her motive to kill deceased as she hit her with chappal. At the outset, it is pertinent to note that chappal of deceased as case property has not been seized and lead in evidence in this case which was a material piece of evidence. Further, in the testimony of PW20 Deepak it has been categorically admitted by him during cross examination that relation between his wife (accused) and his mother (deceased) were normal. PW11 also during his cross examination admitted that the fight between accused and deceased was on small trivial issues which are normal in any household. The aforesaid statements of PW11 and PW20 does not in any manner proves the hostile relation between accused and deceased and there is no iota of evidence lead on record that proves the motive of the accused to kill deceased.
69. It has already been held in preceding paragraphs that neither the weapon of offence seized is connected to crime nor chappal has been seized in this case which form part of extra judicial confession that makes the extra judicial confession highly improbable and the testimony of PW20 in which it has been referred also does not inspire confidence. Hence, this circumstance also remained unestablished on record.
GIVING OF FALSE INFORMATION TO THE POLICE TO MISLEAD THE INVESTIGATION.
FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 34 OF 42
70. The argument of the prosecution is that the accused gave a false statement by concocting a story to the police in order to distract and mislead them. Ld. Additional PP for the state submitted that the conduct of the accused and the circumstances surrounding at the relevant point of time suggests and proves the involvement of the accused in commission of the offence. Ld. Additional PP pointed out the circumstances i.e. closing of the door from outside of the neighbour PW8 Ms. Neeraj Yadav, no robbery of gold or cash from the house, no forceful entry in the house, accused did not call for help and did not pick up the call made by her husband Deepak and PW 3 Ms. Sushil Verma, created false evidence in the form of text message writing 'bachao' sent to her husband and none of the person residing in the same building or adjacent could see anyone entering into the house of the accused at the relevant point of time are relevant and point towards the role of accused. Hence, the accused planned and committed the murder of her mother in law and later gave a false complaint to the police which is also clear from the contradictory statement of fact that in her complaint Ex. PW26/A she claimed one assailant whereas on her way to the hospital she told PW9 HC Satish Chand that there were 3-4 boys who entered her home. Hence, the aforesaid circumstance is also established that hint towards the culpability of accused.
71. No doubt the circumstances pointed above by Ld. Additional PP are relevant to consider in light of the facts of the case but this court is of the view that aforesaid circumstances merely creates strong suspicion but the same does not prove the FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 35 OF 42 guilt of accused as they do not get established as crucial circumstance in the chain of circumstances. It is contended that accused did not pick the phone of her husband Deepak and neighbour Sushil Verma. It has come on record in the testimony of PW20 that accused picked his phone once but she did not speak a word. He further stated that she was probably not able to speak and he could hear heavy breathing. It is also not disputed that the accused was in a room with her infant daughter so it is very much possible that in such a traumatized environment she might be holding her small daughter in the room and was not able to speak at that moment. Similarly, it is possible that no one has noticed any person entering the house of accused and it cannot be assumed that some one must or ought to have seen the person if so happened. PW29, IO Insp. Vijay Pal during his cross examination stated to have examined the guards deployed in front of the building but he did not record their statement to the effect that no person entered the house of the accused.
72. As far as the accused not calling for help pointed by the prosecution, it is admitted case of prosecution that kirtan was underway in the neighbourhood where the incident took place so it is possible that none could have heard the noise made by accused if calling for help and for that matter if commotion had taken place due to attack by an outsider assailant. No one could notice the same. PW3 Sushil Verma and PW8 Neeraj Yadav in their statement u/s 161 Cr.P.C. stated that accused was heard shouting when they reached at her house though both these witnesses denied to have stated this fact to the police at the time of their cross examination but when confronted this fact was found FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 36 OF 42 mentioned in their statement recorded u/s 161 Cr.P.C. However, PW11 in his testimony have specifically stated that Rachna was shouting when he reached her house. This shows that accused probably cried for help but due to loud noise of ongoing kirtan none could hear her. Similarly, no one had seen the person putting bolt outside the house of Neeraj Yadav so by no stretch of imagination the accused can be attributed the role of doing so.
73. Another fact pointed out by Ld. Additional PP for the state was that robbery of gold and cash has not taken place and it would have been done if the assailant has come with the said motive. Now this is admitted case of prosecution that gold and cash were in the same room which accused has locked from inside so question of taking away the said articles were not possible by the assailant. This argument of prosecution has no force in it. As far as creating of false evidence by dropping a message 'bachao' and not calling the husband and other persons is considered against her. This Court does not find itself in agreement with the prosecution for the simple reason that admittedly accused tried to call her husband and the call dropped. PW20 admitted in his cross examination that there is genuine network problem in that area which supports that plea of accused that due to network issue she could not connect call to her husband or anyone else.
74. The other aspect pointed out by Ld. Additional PP is that accused gave contradictory statement qua the presence of number of assailant on the different occasions. Firstly, she stated to PW9 that there were 3-4 persons who entered her house where FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 37 OF 42 as in her statement Ex. PW26/A accused claimed to have only one assailant so it shows that accused concocted a false story. This aspect of prosecution do not hold much merits for the reason that when the accused is stated to have revealed the facts of incident to PW9 she was being taken to hospital in PCR van and by that time she was not declared to be fit by the doctor. Before that she had episode of fainting at the spot. Even PW9 has stated that accused was in unconscious state when she was put in PCR van to be taken to the hospital. Further this statement of PW9 is recorded in PCR form Ex. PW14/A as called at 19.57 hrs where as during his chief examination PW9 stated to have left the hospital by 7 PM so it is not explained as to how information after 07.00 PM was transmitted and recorded in the PCR form. Even in that form Ex. PW14/A the condition of accused is stated to be semi conscious so whatever claim by PW9 to have been stated by the accused in that state of mind cannot be compared to the statement made in full senses. On the other hand, statement Ex. PW26/A is recorded in the hospital after accused was declared fit by the doctors. Hence, the discrepancy pointed out cannot be considered as material.
75. Now coming to the last aspect that accused gave false information to the police. PW29 was cross examined in which he admitted to have not examined or investigated the relatives of accused and deceased. It is stated by accused in her statement Ex. PW26/A that some neighbour has visited the shop of Sanjeev Dawar where he met the deceased and informed her to visit the house of accused to extend some invitation in the evening. This aspect was not investigated from PW11 by IO as to whether any FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 38 OF 42 such person has visited the shop of Sanjeev Dawar. Further there is no statement of any of the relative to show the relation between accused and deceased and accused and her husband to be estranged in order to carve out any motive on the part of accused to commit such offence. Rather most of the facts stated by accused in her statement as Ex. PW26/A has been supported by the prosecution witnesses.
In view of discussion above only suspicion has been created by the circumstances as discussed above which have many probabilities and possibilities and that does not establish or proves the guilt of accused.
SELF INFLICTED INJURIES
76. It is the argument of the prosecution that the injuries on the body of accused were self inflicted injuries as per the opinion of PW6 Dr. Munish Sharma as exhibited Ex. PW6/B. Ld. Additional PP for the state further argued that it is not possible that the assailant shall attack the victim on her left foot and left forearm only which otherwise shows superficial injuries and no deep injury has been sufferred by the accused. The injuries are made by the right hand of the accused and does not in any manner seems to have been inflicted by any aggressive assailant. On the other hand, Ld. Defence counsel countered the argument of the prosecution by saying that during cross examination of PW6, he admitted that the injuries mentioned at point X on Ex. PW6/B can also be inflicted by a third person that rules out the possibility of being self inflicted injuries only.
FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 39 OF 42
77. This court agrees with the argument put forth by the Ld. Defence Counsel that PW6 Dr. Munish Sharma in his cross examination stated that the injuries suffered on the body of accused can be inflicted by a third person so considering that injuries are self inflicted in all probabilities only goes against the rule of appreciation. The other argument of prosecution is that why an assailant will attack the accused on foot and why only superficial injuries will be caused if attacked by a third person. To answer this argument this Court hold that at the most it can be a suspicion but that does not rule out the possibility of attack by third person as per the opinion of PW6. Therefore, no presumption can be drawn against the accused. Moreover, the knife Ex. P9 in question was seized but no finger print of the accused were found on the same to connect or show that the injuries made on her body were self inflicted. Hence, this circumstance also could be established by the prosecution.
DEATH OF THE VICTIM WAS HOMICIDAL IN NATURE:
78. Accused has admitted the postmortem report of deceased Madhu as Ex A-1. As per the report, the time of death is given as about 12-24 hours that corresponds with the time when the victim died. The reason of cause of death is given as Cranio - Cerebral injury consequent on blunt force impact to head in the manner as alleged by prosecution. Hence, the death of deceased Madhu is proved to be a homocidal death.
FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 40 OF 42
79. In Sujit Biswas v. State of Assam, (2013) 12 SCC 406, it was held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture.
80. In light of aforesaid circumstances, this court has no hesitation in holding that the circumstances relied upon the prosecution have not been fully established and they are not conclusive in nature. It is not a case where the only hypotheses of guilt of accused can be inferred from the facts brought on record. The prosecution has failed to elevate its case from the realm of "may be true" to "must be true" as indispensably required in law for conviction on basis of circumstantial evidences on a criminal charge.
81. It is important to note that the cardinal principles in the Administration of Criminal justice in cases where heavy reliance is placed upon circumstantial evidence, is that where two views are possible, one pointing guilt of the accused and the other towards his innocence, the one which is favourable to the accused must be adopted. The prosecution from the quality and quantity of the evidence could not prove the chain of circumstantial evidence which could only lead to one inference i.e. the guilt of accused. Accordingly, the accused Rachna stands acquitted in the instant case.
FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 41 OF 42
82. File be consigned to record room.
Digitally signed by VISHALVISHAL PAHUJA PAHUJA Date:
2023.08.14 16:50:27 +0530 ANNOUNCED IN THE OPEN (VISHAL PAHUJA) COURT ON 14.08.2023 ASJ (FTC) -02 SOUTH DISTRICT SAKET COURTS Containing 42 pages all signed by the presiding officer.Digitally signed by VISHAL
VISHAL PAHUJA PAHUJA Date:
2023.08.14 16:50:33 +0530 (VISHAL PAHUJA) ASJ (FTC) -02 SOUTH DISTRICT SAKET COURTS FIR no. 432/13 PS MALVIYA NAGAR STATE V. RACHNA PAGE NO. 42 OF 42