Delhi District Court
State vs Laxman Yadav on 30 September, 2010
IN THE COURT OF SH. V.K. BANSAL : SPECIAL JUDGE : NDPS
ADDL. SESSIONS JUDGE : ROHINI COURTS : DELHI
S.C. No. 59/08
FIR No. 740/07
P.S. Saraswati Vihar
U/s 302 IPC
State Versus Laxman Yadav
S/o Sh. Ram Dev Yadav
R/o Village Madia,
PS Baso Pati,
Distt. Madhuvani, Bihar
Date of Receipt : 20.05.2008
Date of Conclusion of arguments : 28.09.2010
Date of Decision : 28.09.2010
JUDGMENT :
1. The accused Laxman Yadav has been chargesheeted by Police Station Saraswati Vihar for commission of offence under Section 302 IPC.
2. Story of prosecution in brief is that on 28.06.2007, Hardevi noticed that her tenant i.e. accused and Sita Devi who was living in room on the second floor of her house no. M452, Shakurpur, Delhi had not switched on the light. She went upstairs and called Sita, but she did not respond. Hardevi pushed the door, which opened. She switched FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 1/32 on the light and found Sita lying dead on the floor. She immediately rushed to her employer Savitri and told her that her tenant Sita is lying dead. Savitri went to the shop of Mukesh Sharma and made a call at 100 number. On the basis of call, DD no. 31 A was recorded at Police Station Saraswati Vihar. This DD was assigned to Ins. Dharambir Singh, who along with SI R.K. Mann, Ct. Rati Pal reached the spot in the Govt. vehicle. On the spot, they found Sita Devi lying dead with two stab injuries just under the chest. Blood was also lying on the spot. Pieces of broken bangles were also lying. The dead body was lying on a plastic sheet on the floor covered by the bed sheet. Bangles, bed sheet and plastic sheet along with blood samples, one comb, one mirror and one table fan were seized. Hardevi told that deceased was living there along with her husband Laxman Yadav, but Laxman Yadav could not be found. The dead body was identified by her brother Sh. Ram Chander Yadav, who informed that she was married to accused Laxman Yadav and there was matrimonial dispute between the two due to dowry demand. She was also turned out of her matrimonial home. A panchayat was called about one/one and half month prior to the incident and in that panchayat, accused assured that he will not raise any demand and will keep the deceased happy. On this assurrance, deceased accompanied the accused. Only 15/16 days prior to the incident, accused brought her to Delhi. The accused was searched, but could not be traced as he was absconding. On 31.01.2008, accused surrendered in the court. He FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 2/32 was arrested and he made a disclosure statement, pursuant to which, he also got recovered weapon of offence i.e. Knife proved as Ex. P1. Exhibits were sent to FSL for analysis and on the knife, the blood of human origin was found. After completion of investigation, charge sheet against the accused was filed.
3. Copies were supplied Learned Metropolitan Magistrate after complying the provisions of Section 207 Cr.P.C, committed the case to the court of Sessions as the offence punishable u/s 302 IPC is exclusively triable by the Sessions Court.
4. Accused was charged for the offence punishable u/s 302 IPC by my Ld. Predecessor. The charge was read over and explained to the accused, to which he pleaded not guilty and claimed trial. Thereafter the case was fixed for prosecution Evidence.
5. Prosecution in order to bring home the guilt of the accused, examined 20 witnesses and thereafter, prosecution evidence was closed.
6. Sh. Dev Chander Yadav was examined as PW1. He is the brother of the deceased. He deposed that deceased was his sister and was married with the accused about 8/9 years prior to the incident and she was residing with her husband in village. There was dispute between her and her inlaw/husband and she also told him that accused used FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 3/32 to beat her and raise demand. She was turned out of her matrimonial home and a panchayat was called in the village, wherein the accused assured to keep her properly and will not raise any demand. On this assurance, her sister accompanied him and they lived in the matrimonial home at village. It was one month prior to the incident that he brought her to Delhi. He has also stood through the cross examination. During crossexamination by the learned defence counsel, PW1 stated that accused brought her sister to Delhi about 15 days before her murder and the panchayat was held before 1/11/2 months before the murder. He also stated that after the accused brought her sister to Delhi, the matter was brought to the knowledge of Sh. Deven YadavParmukh of the village and he asked the father of the accused to produce the boy and girl and while they were still searching for the accused and his sister, he received an information about the murder. He denied the suggestion that no such panchayat was called or that there was no such dispute between the deceased and the accused.
7. PW2 is Sh. Ram Chander, who was the relative of the deceased Sita and he identified her dead body vide Statement Ex. PW2/A.
8. Sh. Mukesh Kumar Mishra was examined as PW3. He stated that from his shop, Savitri Dvi made a call at 100 number on 28.06.2007 at about 9.00/9.15 pm, but he stated that he does not know what she FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 4/32 told. He was crossexamined by the Ld. Addl. PP, but nothing material came on the record.
9. Savitri was examined as PW4. She told that Hardevi was working as made servant in her house and on 28.6.2007, at about 9.00 pm, Hardevi came to her house in perplexed condition and told that dead body of her tenant was lying in her house. She asked Hardevi to make a call to the police, but she refused. Then she herself went to the shop of Mukesh Mishra, who was running a PCO and from there, she made a call at 100 number. Thereafter, she went to the house of Har Devi.
10. Smt. Har Devi was examined as PW5. She stated that one room and varanda on the second floor of house no. M452, was rented out by her to the accused about 16/17 days prior to the incident and he was residing there along with his wife Sita. They were not having any child. She also stated that on 28.06.2007, she returned after completing her work from the house of Savitri. She found that the lights of the room of Laxman and Sita have not been switched on. She went upstairs at about 7 or 8 PM and the door of the room was slightly open. She called Sita, but no body responded. She opened the door and saw Sita lying on the floor. She switched on the light and found that Sita was lying dead. On the floor, broken pieces of bangles were also there. She became perplexed. She went to the house of Savitri. FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 5/32
Savitri asked her to go home and she made a call to the police. Police also arrived there. She was crossexamined by the learned Addl. PP on the aspect that accused used to quarrel with Sita and on that day, she had seen Laxman returning home at about 8/9 am and leaving at about 10.30/11.00 am. She stated that she had not seen Laxman returning or leaving the home. Her testimony remained unchallenged and uncontroverted.
11. SI Matadin was examined as PW6. He was the Incharge of crime team, who visited the spot, inspected the scene of crime and prepared his report Ex. PW6/A.
12. SI Manohar Laldraftsman was examined as PW7. He visited the spot with Ins. Dharambir Singh, took measurement and prepared the scaled site plan proved as Ex. PW7/A of the place of occurence.
13. Ct. Dharmender was examined as PW8. He took the exhibits on 22.02.2008 to FSL Rohini and deposited the same there and on return, he handed over the receipt to the MHCM.
14. Ct. Ratipal was examined as PW9. He reached the spot along with Ins. Dharambir and R.K. Mann on receipt of DD no. 31 A. He deposed about the finding of the dead body and that crime team reached the spot. Photographs were also taken. He removed the FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 6/32 dead body to the BJRM Hospital and remained there till the postmortem was conducted and body was handed over to the relatives of the deceased.
15. Ct. Dalbir Singh was examined as PW10. He was a member of the crime team and he took the photographs of the dead body and scene of occurrence, which are proved on record as Ex. PW10/1 to Ex. PW 10/16 and negatives of which are proved as Ex. PW10/17 to Ex. PW 10/33.
16. HC Madan Lal was examined as PW11. He joined the investigation on 31.01.2008 along with Ins. PP Singh, when accused surrendered in the court no. 112 of Rohini Court Complex and from there, he was arrested after taking permission from the court. His disclosure was recorded. One day PC was taken and he stated that he can get recover one knife and he also got recovered the knife from the corner of the park situated near Shamshan ghat, Tpoint. Knife was found wrapped in a polythene and was found concealed under the bricks and stones lying there. Sketch of the knife was prepared, which is proved as Ex. PW11/D. Knife was thereafter, wrapped in a cloth parcel and was sealed with the seal of PPS and was seized vide memo Ex. PW11/E. He also identified the knife Ex. P1. He was also crossexamined by the ld. Defence counsel and he stated that IO asked the public persons to join the investigation, but none agreed. He denied the suggestion that knife and polythene are new and were FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 7/32 planted upon the accused.
17. Sanjay was examined as PW12. He stated that accused used to drive his TSR no. DL 1 RF 7033 at night and during crossexamination by Ld. Addl. PP, he stated that Sanjay took the TSR on 27.06.2007 and returned it in the morning of 28.06.2007 and thereafter, he never came back to take the TSR.
18. Dr. Kulbhushan Goel was examined as PW13. He conducted the postmortem on the dead body of deceased. Doctor duly proved the postmortem report as Ex. PW13/A and the doctor opined that cause of death is haemorrhagic shock consequent upon injuries to liver and stomach. All injuries were anti mortem in nature caused by sharp cutting penetrating weapon. Abdominal injuries no. 1 and 2 mentioned in the Postmortem report are sufficient to cause death in ordinary course of nature collectively. Mode of death is homicidal and time since death is seven days. He also opined that injuries mentioned in PM report Ex. PW13/A that is injury no. 1 and 2 are possible by the knife shown or similar type of other weapon. Knife Ex. P1 was also shown to him. During crossexamination, a specific question was put by the ld. Defence counsel that : Q. Is there any possibility that the two wounds found on the dead body were caused by two different weapons ?
Ans. These two wounds can be caused by single weapon or FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 8/32 possibility of two different weapons can also not be ruled out.
19. SI Brahm Prakash was examined as PW13, but later on he was given no. 13A. He was working as duty officer at the relevant time and he recorded the FIR no. 740/07 proved as Ex. PW13/A at the PS on the rukka sent by Ins. Dharamvir Singh.
20. ASI Bhupender Singh was examined as PW14. He joined the investigation on 28.06.2007 with SI R.K. Mann and he took the rukka to the PS and got the present case registered there.
21. HC Narender KumarMHCM was examined as PW15 and he proved the entries regarding deposit of case property/exhibits with him as Ex. PW15/A, Ex. PW15/B and Ex. PW15/C. On the directions of SHO, he also sent the exhibits to FSL and proved the copy of RC as Ex. PW15/D.
22. SI R.K. Mann was examined as PW16. He joined the investigation of this case since very beginning with Ins. Dharamvir and Ct. Ratipal and driver Bhupender . During investigation, he lifted the exhibits from the spot and got the FIR registered.
23. Dr. Rajender Kumar, Asstt. Director (Biology) FSL was examined as PW17 and he proved his biological report as Ex. PW17/A and FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 9/32 serology report as Ex. PW17/B. He deposed that according to Ex. PW17/B, blood was detected on the knife which was referred in the report as Ex. P5 and it was found of human origin, but blood group could not be ascertained.
24. Ct. Gurjeet Singh was examined as PW18 and on 28.06.2007, he delivered the copy of FIR to Ld. M.M., DCP, NorthWest and Joint CP (N.R.)
25. Ins. Dharambir Singh was examined as PW19 and he proved about the discovery of the dead body and lifting the exhibits from the spot and seizure thereof. He was transferred on 25.08.2007 and thereafter, he handed over the file to MHCR.
26. Further investigation of this case was conducted by Ins. PP Singh examined as PW20. He arrested the accused from the court of Ld. M.M. Sh. A.K. Chaturvedi, where he surrendered. The accused was interrogated after taking permission from the court. The accused confessed about the commission of crime. He disclosed that he can get the knife recovered and at his instance, Knife Ex. P1 was recovered from the Tikona Park, near Shamshan Ghat, Mblock, Shakarpur, Delhi. Knife was found wrapped in a polythene, which was found concealed under the bricks and stones lying near the back side wall of Tikona park. Sketch of the knife was prepared, it was put in a FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 10/32 cloth parcel and was seized. Case property was deposited in the Mal khana. Exhibits were sent to FSL and investigation was completed.
27. Statement of accused was recorded u/s 313 Cr.P.C, wherein he admitted that he was married with the deceased, but he denied that he was living in the village. He admitted that no child was born. He denied that he used to beat Sita or harass or make any demand. He stated that PW1 Dev Chander was having grudge against him because he asked a sum of Rs. 10,000/ for the medical care of his elder daughter, when she was down with jaundice, but he could not help him due to his poor financial condition and he even quarrel with him and his wife and since then,they were not in talking terms with each other. He denied the suggestion that he turned out his wife out of her matrimonial home. He stated that they were living happily. He also denied that any panchayat was called about two months prior to the incident or that on his assurance given in the panchayat, his wife accompanied with him. He also denied that he shifted to Delhi only after a month before the incident and took a room on rent from PW5 only 16/17 days prior to the incident. He stated that he was residing at the said address since 2000. However, he admitted that he and his wife were staying in that house. He admitted that he used to drive TSR no. DL1RF7033 of PW12 Sanjay during night. He also stated that on 27.06.2007 in the morning, he left the TSR with PW12 and came to his house. He had his lunch at about 1.00 o'clock and went FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 11/32 away informing his wife that he was going to Gannaur Mandi, there somebody offered him a job and he also told his wife that he would be back on 28.06.2007. On 28.06.2007, at about 10.30 pm, He reached Mblock, Shakur Pur, where he has seen police gypsies and many neighbours collected. Upon inquiry from a stranger, he told him that somebody murdered his wife and fled away. However, he denied the suggestion that he did not take the TSR from Sanjay. He stated that he went to his friend Sunil's house, who was residing in D block, Shakurpur and told him this fact. Next day, he took him to a lawyer in Tis Hazari Courts and he inquired from the accused as to whether he can see dead body of his wife and do the last rituals. That lawyer inquired from the PS and informed him that police was searching him frantically and therefore, he cannot go to the PS or to the house. After some time, he was informed by his parents that the police was harassing them and then he decided to surrender himself before the Court. He denied that any knife was recovered from me and stated that knife was planted upon him. He does not wish to lead evidence in defence. Thereafter, the case was fixed for final arguments.
28. I have heard arguments from the learned Additional Public Prosecutor for the State, ld. Defence counsel for the accused and perused the record.
29. Ld. Addl. PP submitted that in the present case, no ocular evidence FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 12/32 was available with the prosecution. The case is based upon the circumstantial evidence. There is no such law that if there is no eye witness or ocular evidence, a person cannot be convicted. However, in case of circumstantial evidence, the prosecution has to prove each and every circumstance, which they intend to prove, the circumstances so proved shall form a complete chain, the circumstances proved shall also point towards the guilt of the accused and shall also be inconsistent with any hypothesis of innocent of the accused. Ld. Addl. PP submitted that in the present case, the prosecution wants to prove the circumstances (i) Living together in one room (ii) Conduct of the accused (absconding) (iii) recovery of weapon of offence and (iv) Motive.
LIVING TOGETHER IN ONE ROOM :
30. Ld. Addl. PP submitted that in the present case, as per PW5 accused along with his wife was living on the second floor of her house as tenant. He was living there with his wife (since deceased). No other person was living with them. It has also come in evidence that he used to drive TSR during night and remain in the house during day. Accused himself has admitted this fact in reply to question no. 11 put to him in statement recorded u/s 313 Cr.P.C. Even PW12 deposed on these lines. On 28.06.2007, Hardevi had not seen the accused, though in her statement u/s 161 Cr.P.C, she stated that she had seen the accused returning at about 8.00 am and leaving at about FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 13/32 9.30/10.00 am. Ld. Addl. PP submitted that this does not make a difference as according to the evidence, accused was living there with his wife deceased Sita Devi and no other person was living there. There is no evidence on record that there was any forced entry in the house and nothing was found missing from the house, which rules out the possibility of any robber or any other person entering the house. Under these circumstances, any other possibility that anybody forcibly entered the house and committed the offence is ruled out. Ld. Addl. PP submitted that under these circumstances, when it was only the accused leaving with the deceased and there is no evidence of any forced entry in the house and accused was found missing from the house and he did not return thereafter, clearly points towards his guilt and is also inconsistent with any hypothesis of innocence of the accused.
31. Learned defence counsel submitted that the circumstance that accused was lastly seen in the room and going out of the room has not been proved by the prosecution. PW5 Hardevi was examined by the prosecution to prove and establish this fact, but PW5 Hardevi did not support the prosecution case on this aspect. She was cross examined by the ld. Addl. PP and she stated that she has not seen the accused returning home on 28.06.2010 and had not seen the accused leaving home at about 10.30/11.00 am. Therefore, So far as this circumstance is concerned that has not been proved. However FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 14/32 the accused was living there with his wife, but there was no quarrel or enmity between them and they were having cordial relations and were living happily. It is submitted that benefit of the same be given to the accused and he be acquitted.
32. After hearing the arguments and going through the record, I found that it is clear from the testimony of PW5 that accused was living there along with Sita Devi and none else was living in that room except these two. It is also the testimony of PW5 that accused used to go in the evening and come in the morning and on that day, she had not seen the accused coming or going. From this evidence of PW5, which has been brought on record, I am of the considered opinion that only these two persons were living in that house of PW5 and none else. Accused himself has also admitted in his statement u/s 313 Cr.P.C that only he and his wife were residing in that room. CONDUCT OF THE ACCUSED (ABSCONDING) :
33. Ld. Addl. PP submitted that conduct of the accused is also very unnatural after the offence. Accused used to drive the TSR of PW12 during night. He took the TSR on the night of 27/28.06.2007 and returned the same in the morning of 28.06.2007. There is no cross examination of PW12 on the aspect that he did not take the TSR from PW12 on that day. After the morning of 28.06.2007, accused never took the TSR on hire from PW12. He did not return home. He was FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 15/32 also not found at his village, though the police team went there. He was absconding immediately after the offence, which clearly show that it was he, who committed the murder and that is why he was absconding. Ld. Addl. PP submitted that accused had taken a defence that he got an employment at Gannaur, but it was an after thought. There is no crossexamination of any of the witnesses on this aspect and even if, he had taken any employment, he can very well produce that person, who gave him the employment, which has not been done. He even opted not to lead any evidence in defence. Accused also stated that he returned home and from a stranger, he came to know that his wife has been murdered. After knowing this, the natural conduct of the accused should have been to contact the police immediately, when the police was already on the spot, but instead he decided to flee, which clearly points towards his guilty mind. He remained absconding for about six months and thereafter he surrendered before the court. During this period, he was even not present at his village. All these facts and his conduct, after the commission of offence clearly points towards the guilt of the accused. It is prayed that accused be held guilty.
34. Ld. Defence counsel submitted that there cannot be a straight jacket formula that a person would react in a particular manner under the given circumstance. It will depend upon person to person, how he or she will react in a given particular situation. Ld. Counsel submitted FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 16/32 that accused herein is an illiterate villager and from a poor family. He was not in Delhi at the relevant time as he had gone to Gannaur to look for an employment and he also got an employment there. On 28.06.2007, when he returned home at about 10.30 pm, he saw a gathering outside his house and police was also there. He inquired from one person as to what has happened and that person told the accused that somebody had killed his wife and thereafter, he fled away from there. Ld. Counsel submitted that the accused was frightened and he went to the house of his friend and made inquiries from him as to whether under the circumstances, he can see the face of his wife and can claim the body of his wife. His friend took him to one advocate, that advocate made a call at the concerned police station and thereafter told the accused that police is frantically searching for him and if he went there, he will be arrested. On hearing this, the accused was frightened and he went away. Ld. Counsel submitted that this circumstance does not in any manner establish or prove that accused committed this offence or even pointed towards the guilt of the accused. He is innocent person and that is why fearing that police will arrest him or implicate him in this case, he fled away from the spot. Learned defence counsel submitted that circumstance of absconding does not point towards the guilt of the accused and on that basis, accused cannot be held guilty.
35. After hearing the arguments of Ld. Addl. PP and ld. Defence counsel FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 17/32 and going through the record, I found that according to PW5 Hardevi, the accused was not seen by her on 28.06.2007 and thereafter, he never came there. It is also admitted fact that accused used to drive TSR of PW12 Sanjay. PW12 stated in his examination in chief that accused used to drive his TSR during night and on 26.06.2007, he also took his TSR on the night of 26.06.2007 and on 27.06.2007, he returned the TSR. He was crossexamined by the Ld. Addl. PP about the date and there witness himself stated that accused took his TSR on the night of 27 and returned it in the morning of 28.06.2007 and thereafter, he did not come to take the TSR for driving at night. There is no crossexamination of this witness on the aspect that he did not come after 28.06.2007, to take the TSR or that accused did not take the TSR on 27.06.07 and returned in the morning of 28.06.07. Learned defence counsel has submitted that infact, the wife of the accused was not happy with his working at night and that is why, he did not go to PW12 to take the TSR for driving at night, but there is no suggestion to PW12 that as his wife was not liking this work, he did not come to take the TSR. The accused alleged that he went to his friend and informed him about the incident, but that friend has not been produced in the witnessbox. He also allged that he went to Gannaur, where he got the employment, but he did not examine his employer to prove that he got an employment there. It has come in the testimony of PW20 that one team was also sent to the native village of the accused to arrest him, but he was not there. It is FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 18/32 unnatural that a person, whose wife is killed and has also come to know immediately thereafter that his wife has been killed, would flee from the spot, instead of lodging the FIR or making a complaint to the police to investigate the matter. Accused himself had admitted in his statement u/s 313 Cr.P.C that he fled away from the spot after seeing the police and coming to know that his wife had been murdered. This fact though points towards the guilt of the accused, but it is rightly pointed out by the learned defence counsel that merely because the accused absconded does not prove the guilt of the accused. In view of the above discussion, I am of the considered opinion that this circumstance stands proved that accused absconded immediately after the incident.
RECOVERY OF WEAPON OF OFFENCE :
36. Ld. Addl. PP submitted that after the accused surrendered in the court of Ld. Metropolitan Magistrate Sh. A.K. Chaturvedi, PW11 Ct. Madan and PW20 Ins. PP Singh arrested him after taking the permission from the Court. He was interrogated, wherein he confessed about the commission of offence. Though, same is not admissible under law, but he also disclosed that he can get the knife recovered, with which he committed the offence and he also got recovered knife Ex. P1 from the Tikona Park, situated near Britania Chowk, Shamshan Ghat, Mblock, Shakurpur, Delhi. The knife was found wrapped in a polythene and was concealed under the bricks FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 19/32 and stones. Ld. Addl. PP submitted that place from where, the recovery was effected, was not a public place and was not generally frequented by the public. Knife was also found concealed under the bricks and stones. The place of recovery was exclusively in the knowledge of the accused, from where he got recovered the knife Ex. P1. No doubt, no public witness was joined at the time of effecting recovery, but keeping in view the fact that both these witnesses PW 20 Ins. PP Singh and PW11 Ct. Madan have also stood through the test of crossexamination and there is no reason to disbelieve their testimonies and also the fact that both witnesses stated that public persons were asked to join the investigation, but none agreed, testimony of these two witnesses cannot be discarded merely on the ground that they are from the police force. Both these witnesses specifically stated that accused got recovered the knife and knife has also been proved as Ex. P1 in the court. Knife was also sent to FSL. FSL report has been received and proved on record as Ex. PW17/A and the serological report is proved as Ex. PW17/B. The report shows that blood of human origin was detected on the knife. This also points towards the fact that this knife was used in the commission of offfence and that is why, there was presence of human blood on the knife. PW13 Dr. Kulbhushan Goel, who conducted the postmortem on the dead body also opined that the injuries found on the dead body mentioned in the postmortem report Ex. PW13/A i.e. Injury no. 1 and 2 could be caused with this knife or similar such weapon. Ld. Addl. FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 20/32
PP submitted that in view of this scientific evidence of PW13 and FSL Result and the recovery of the knife from a place, which was exclusively in the knowledge of the accused, clearly points towards the guilt of the accused and is inconsistent with any hypothesis of innocence of the accused.
37. Ld. Defence counsel has submitted that in the present case, there are two recovery witnesses i.e PW20 Ins. PP Singh and PW11 HC Madan Pal, both of them have contradicted each other. PW11 stated that his statement was recorded on the spot, whereas PW20 stated that his statement was recorded in the PS. PW20 stated that that there were public persons in the park, whereas PW11 stated that it was not the park and it was a small space just outside the cremation ground. PW20 also stated that there was one public convenience constructed in the park, but that has not been shown in the site plan. PW11 also contradicted himself when in the examinationinchief, he stated that knife was found wrapped in a polythene and it was taken out by the accused after removing bricks and stones, but during cross examination, he stated that it was concealed under the earth and was taken out by removing the earth. Ld. Counsel submitted that even in the seizure memo, it is mentioned that polythene was taken out from between the bricks and stones. Ld. Counsel submitted that it was a public place frequented by the public and therefore, it cannot be said that it was a place, which was in the exclusive knowledge of the FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 21/32 accused. Even otherwise, no public witness was joined at the time of effecting recovery. Public persons were available there, despite that no sincere effort was made, which again creates doubt about the truthfulness of the story of the prosecution. Two witnesses have also contradicted each other about the timing of reaching the spot. According to PW11, they reached the spot after 4.00 pm, whereas according to PW20, they reached the spot before 3.00/4.00 pm. Learned defence counsel submitted that in fact no recovery has been effected, which is evident from the contradictions in the testimony of only these two recovery witnesses. Actually, the knife was planted upon the accused. Witnesses have stated that there were blood stains on the knife, but no blood stains were shown in the sketch of the knife prepared by PW20. It is even not mentioned in the report u/s 173 Cr.P.C that knife was having any blood stains. Learned counsel submitted that keeping in view all these contradictions, it cannot be said that prosecution has proved the recovery of the knife beyond doubt. It is prayed that as the prosecution has failed to prove and establish the recovery of the knife, benefit of the same be given to the accused and he be acquitted. In support of his arguments, learned defence counsel has relied upon the judgment titled as Bhagwan Dass vs. State of Haryana, 1997 SCC (Criminal) 1083.
38. After hearing the arguments and going through the record, I found that in the present case, the accused surrendered on 31.01.2008 in FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 22/32 the court. He was arrested from there after taking permission from the court. He made a confessional statement and disclosed that he can get the knife recovered. No doubt, statement made to the police by accused is hit by Section 25 of Indian Evidence Act, but that part of disclosure statement, which leads to recovery can be relied upon. Accused disclosed that he can get the knife recovered and he also got the knife recovered from a place, which was in his exclusive knowledge. So far as, contradictions in the testimony of two witnesses are concerned, I do not find that there are such major contradictions except the timing of reaching the spot and presence of public persons in the park. The witnesses are consistent that accused took out the knife from underneath the bricks and stones. They also stated that knife was found wrapped in a polythene. They also stated that it was not a thorough fare. Site plan of the place of recovery has also been proved as Ex. PW20/C. This site plan clearly shows that this was a small park at T point adjoining cremation ground. The fact that there were stones and bricks clearly shows that it was not the place, which could be generally frequented by the public, particularly when, it is situated adjacent to cremation ground. It is also well settled principle of law that the testimony of a witness cannot be discarded merely on the ground that he is from the police force. Only precaution is that the evidence of a police official be scrutinized minutely. If after scrutiny, it is found that witness is trustworthy, reliance and stood through the test of crossexamination, then reliance FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 23/32 can be placed upon the testimony of a police official also.
39. So far as the contention that it is not shown in the sketch of the knife that there was blood on it, that does not mean that there was no blood stains as it has specifically come in the FSL result Ex. PW17/A and Ex. PW17/B that blood of human origin was found on the blade of the knife. Therefore, I do not find any merit in the contention of the ld. Defence counsel that there was no blood on the knife. PW13 Dr. Kulbhushan Goel, who conducted the postmortem on the dead body also opined that injuries no. 1 and 2 found on the dead body could be caused by this knife. After considering the entire evidence, I am of the considered opinion that prosecution has fully proved and established that knife was recovered at the instance of the accused and that also from a place, which was within the exclusive knowledge of the accused as nobody else can foresee that in a small park adjacent to the cremation ground under the stones and bricks a knife had been concealed after wrapping it in a polythene. The factum of detection of blood of human origin on the knife further strengthens the same. I am, therefore, of the opinion that this circumstance stands proved and it also points towards the guilt of the accused and at the same time, is also inconsistent with any hypothesis of innocence of the accused. MOTIVE :
40. Ld. Addl. PP submitted that in the present case, the prosecution has FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 24/32 also proved and established the motive. PW1 Sh. Dev Chander Yadav, who was the brother of the deceased, specifically stated that there was dispute between the accused and the deceased. Accused used to harass the deceased from the very inception of the marriage. He used to raise demand and he also turned out deceased from the matrimonial home. Thereafter, a panchayat was called in the village, wherein he was also present and in that panchayat, accused assured to keep the deceased properly and also that he will not raise any demand. On that assurance of the accused, the deceased accompanied him. The panchayat was convened about one/one and half month prior to the incident and only 15/16 days before the incident, the accused brought the deceased to Delhi, where he committed the murder of Smt. Sita. Ld. Addl. PP submitted that previous dispute between the parties and his coming to Delhi only 15/16 days before the incident and that also when the parents of the deceased were not there, without informing even his parents. The Parmukh of the village asked the father of the accused to produce the accused and the deceased, was also not fruitful and clearly shows that he did not inform anybody before coming to Delhi. He came here with a planning to get rid of the deceased. He came here and murdered her wife, because he was called in the panchayat on the complaint of the deceased and her parents, where he had to give an assurance. It is prayed that the fact that he came to Delhi only 15/16 days prior is also supported by PW5 and her testimony on this aspect FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 25/32 had remained unchallenged and uncontroverted. The accused had also taken false plea in his statement u/s 313 Cr.P.C, wherein he stated that he was residing at this address since 2000. Even no suggestion was given to PW5 that the room was not taken on rent only 15/16 days prior to the incident and was taken in the year 2000. Ld. Addl. PP submitted that all this was done with a preplanning to commit the murder of his wife and thereafter, the accused murdered his wife. It is prayed that keeping in view all these facts, the accused be held guilty.
41. Learned defence counsel submitted that motive in this case has not been proved. According to PW5, the dispute between the parties was perhaps due to the reason that they were not having any child. Whereas according to PW1 who was the brother of deceased, the dispute was due to dowry demands. According to PW1, panchayat was also convened in the village, wherein accused assured that he will keep the deceased properly and will not make any demand, but no such evidence has been brought on record. No member of the panchayat has been examined by the prosecution. No document to this effect was produced in the court, though PW1 stated that documents were prepared and he handed over the same to the IO, which clearly shows that it is afterthought and has been introduced later on to strengthen the case. So far as PW5 is concerned, he specifically stated during crossexamination by Ld. Addl. PP that she FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 26/32 had never seen the accused and the deceased fighting with each other and she never told that the deceased that they used to fight with each other because they were not having child. Learned defence counsel submitted that onus was upon the prosecution to prove the motive, in which the prosecution has miserably failed, benefit of the same be given to the accused and he be acquitted.
42. After hearing the arguments and going through the record, I found that in the present case, PW1 has specifically stated that immediately after the marriage, accused started harassing the deceased and also used to beat her. She was even turned out of her matrimonial home and the panchayat was convened, wherein accused assured that he will keep the deceased properly and will not raise any demand. PW1 was put to lengthy crossexamination by ld. Defence counsel, but he was not able to cause any dent in his testimony. From the evidence of this witness, it has also come on record during crossexamination that accused along with deceased shifted to Delhi only 15/16 days prior to the incident. He also stated that accused brought the deceased to Delhi when his parents i.e. Parents of the deceased were not at home. PW5 also stated that accused came to reside in his house as tenant only 15/16 days prior to the incident. It is important to note that accused was not having previous employment in Delhi. Accused has alleged in his statement u/s 313 Cr.P.C that he was living at that address since 2000, but surprisingly no such question was put to FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 27/32 PW5 that he along with his wife Sita Devi was living as tenant in the said room for the last five years. No such document is placed on record that he was tenant in the said room for the last five years and even no suggestion is given to PW1 that accused was also living in Delhi along with deceased for the last five years and they did not shift only 15/16 days prior to the incident. It is also important to note that as per PW1, the panchayat was convened only 1 or 11/2 month prior to the incident, where the accused gave an undertaking before the panchayat that he will keep the deceased properly. This testimony of PW1 clearly shows that there were differences betwen the accused and the deceased and accused used to beat her. She was also turned out of her matrimonial home, but due to intervention of panchayat, he had to take her back and also gave an assurance that he will keep her properly and will not raise any demand. This, in my opinion itself gives a clear motive to the accused to get rid of deceased and for that purpose, he came to Delhi, took a room on rent and eliminated her. I am of the considered opinion that in view of the above discussion, so far as the motive is concerned, that stands proved.
43. In view of the discussion, I found that the circumstances and the fact proved are that only the accused and deceased were living in that room. There is no evidence of any forced entry in the room. There is no evidence on record that anything went missing from the room. FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 28/32
Therefore, the question of any third person going there for the purpose of robbery or for committing the murder does not arise. PW5 has specifically stated that only these two were staying there and wife has been found murdered in the room, where the accused was also residing. Therefore, it is for the accused to explain under what circumstances, his wife was murdered or died.
44. Accused took the defence that he had gone to Gannaur and was not there, but no such evidence has been brought on record. He even stated that he had gone to Gannaur on 27th, but that is not plausible in the light of the testimony of PW12, who stated that in the intervening night of 27/28.06.2007, the accused took TSR and returned it in the morning of 28th. There is no crossexamination of PW12 on this aspect. The accused even absconded after the murder. According to the accused, he absconded after coming to know that his wife has been murdered. Natural act of a person would have been to rush immediately to the room, where the dead body was lying or report the matter to the police to investigate. He took the defence that he was frightened and went to the house of his friend, but that friend has not been produced in the witness box by the accused. Even counsel with whom, he consulted has not been called as a defence witness. Accused surrendered after about seven months of the incident and when he surrendered and arrested, he got recovered the knife and according to the opinion of the doctor, injuries found on the dead body FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 29/32 could be inflicted by this knife. Blood of human origin was also found on the knife and as discussed above, recovery of knife at the instance of the accused has also been proved. The accused also took the false defence that he was living in Delhi for the last five years prior to the incident. This false defence by the accused further points towards the guilt of the accused. In view of the above discussion, I am of the opinion that prosecution has successfully proved and established the guilt of the accused. I, therefore, hold the accused Laxman Yadav guilty u/s 302 IPC and convict him accordingly.
Announced in open Court
on today i.e. 28.09.2010 (V.K. BANSAL)
ADDL. SESSION JUDGE
ROHINI : DELHI
FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 30/32
IN THE COURT OF SH. V.K. BANSAL : SPECIAL JUDGE : NDPS ADDL. SESSIONS JUDGE : ROHINI COURTS : DELHI S.C. No. 59/08 FIR No. 740/07 P.S. Saraswati Vihar U/s 302 IPC State Versus Laxman Yadav S/o Sh. Ram Dev Yadav ORDER ON THE POINT OF SENTENCE 30.09.2010 Present: Ld. APP for the State.
Convict produced from J.C. Arguments heard on the point of sentence and perused the file. The convict submitted that he is not a previous convict and has no previous criminal record ; he is aged about 28/29 years having old aged parents and one sister, who is married. There is no one to look after his parents ; he belongs to a very poor family. It is prayed that a lenient view may kindly be taken and he may be given a chance to rehabilitate himself in the society.
On the other hand, Ld. Addl. PP for the State submitted that convict has committed the gravest offence of murder and that also of his own wife. At that time, his wife was living with him alone, but the convict murdered her FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 31/32 by stabbing. Keeping in view the fact and the manner of offence, it is prayed that no leniency be shown and Capital punishment be awarded.
Keeping in view all the submissions, facts and circumstances of the case, I found that for awarding Capital punishment, the case must fall in the category of rarest of the rare cases, but facts and circumstances of the present case, does not make this case falling under that category. Keeping in view the gravity of offence, I sentence the convict Laxman Yadav to life imprisonment along with a fine of Rs. 5,000/ for the offence punishable u/s 302 IPC, in default of payment of fine, to undergo R.I., for six months.
Copy of judgment and copy of order on the point of sentence be given to the convict, free of cost.
File be consigned to record room.
Announced in open Court
on today i.e. 30.09.2010 (V.K. BANSAL)
ADDL. SESSION JUDGE : DELHI
FIR no. 740/07 : PS Saraswati Vihar : State vs. Laxman Yadav Page 32/32