Delhi District Court
State vs . Netarpal on 29 September, 2012
1 FIR No. 606/04
PS Nangloi
IN THE COURT OF SH MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE - IV (OUTER DISTRICT) :
ROHINI : DELHI
SESSIONS CASE NO. 52/2011
Unique I.D No. 02404R6288722004
STATE Vs. NETARPAL
S/O SH. RAMBIR SINGH
R/O RZ D64, NIHAL VIHAR,
NANGLOI, DELHI.
FIR No. : 606/2004
Police Station: Nangloi
Under Section: 302 IPC
Date of committal to sessions court : 09.11.2004
Date on which judgment was reserved: 27.09.2012
Date of which judgment announced : 29.09.2012
JUDGMENT:
1. Briefly stated the case of the prosecution as unfolded by the report u/s 173 Cr.P.C is as under: 1 of 42 2 FIR No. 606/04 PS Nangloi That on 14.07.2004 at 4.45 AM accused Netar Pal came to Police Post Nihal Vihar and got recorded a DD No. 30 to the effect that he was married with Sanju D/o Sh. Mangal Sain about 8/9 years ago and after the marriage he is having two sons and is living at Nihal Vihar for the last 4/5 years. His wife Sanju used to work in kothies in Paschim Vihar and was having illicit relations with somebody in Paschim Vihar. There used to be a quarrel on this issue and today also a quarrel had taken place on this issue. He and her wife were in the room at the ground floor and the rest of the family members and his children were sleeping on the roof. He tried his best to make understand his wife but she was threatening of taking divorce. On which being under provocation (taish) he throttled/pressed the neck of his wife with his hands on which she became unconscious and murdered her by putting in her neck a noose (fanda) of a white colour chunni which was lying nearby and made her laid straight on a cot and after being satisfied that she has died, thereafter, untied the noose/knot of the chunni. He committed the murder of his wife by throttling/pressing her neck and by putting a noose of chunni in her neck on the suspicion of her having illicit relations. He can get recover the dead body of his wife and a white colour chunni from his residential house. The copy of DD No. 30 was handed over to PW 14 SI Ravi Shankar who along with accused Netarpal, 2 of 42 3 FIR No. 606/04 PS Nangloi PW15 SI Sher Singh, PW7 Ct. Surinder and PW17 Ct. Om Prakash reached at the house of accused Netarpal at RZD64, Nihal Vihar, Delhi. The main gate of the house was open and they entered into the house. There was a room which was bolted from outside. Accused Natarpal told that it is the room in which he has committed the murder of his wife Sanju. The dead body and chunni are lying inside. On opening the latch (kundi) of the room one dead body of a lady was lying on a cot. Her head was towards west direction whereas her legs were towards east direction. There was strangulation mark on the neck. Her chunni was lying near the legs. She was wearing a pink night gown and salwar of light brown colour. Spot was got inspected and photographed by the crime team. Father of deceased Sh. Mangal Sain and brother Hira Lal also reached at the spot and they identified the dead body of Smt. Sanju w/o Netarpal. In the meantime, Addl. SHO alongwith staff also reached at the spot, who inspected the spot. Addl. SHO gave direction for further investigation to PW14 SI Ravi Sharma. Inquest papers were prepared. The chunni was seized by converting into a pullanda and was sealed with the seal of 'RS'. Dead body was sent to mortuary for postmortem through PW 7 Ct. Surinder. Rukka was prepared and got the case registered u/s 302 IPC through PW17 Ct. Om Prakash. The special reports through special messenger were sent to the concerned MM and senior 3 of 42 4 FIR No. 606/04 PS Nangloi police officers.
Upon completion of necessary further investigation challan was prepared for the offence u/s 302 IPC against accused Netarpal and was sent to the court for trial.
2. Since the offence u/s 302 IPC is exclusively triable by the Court of Session, therefore, after compliance of the provisions of Section 207 Cr.P.C, the case was committed to the Court of Session u/s 209 Cr.P.C.
3. Upon committal of the case to the Court of Sessions, after hearing of charge prima facie a case u/s 302 IPC against accused Netarpal was made out. Charge was framed accordingly which was read over and explained to accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has examined 17 witnesses. PW1 HC Suresh Kumar, PW2 Ct. Karamvir, PW3 HC Naresh, PW4 Sh. Mangal Sain, PW5 Sh. Hira Lal, PW6 HC Surender Kumar, PW7 Ct. Surender, PW8 Smt. Shavitri Devi, PW9 Ct. Dhanraj, PW10 Sh. Prem Narain, PW11 Insp. Devinder Singh, PW12 Dr. V.K. Jha, Medical Officer, 4 of 42 5 FIR No. 606/04 PS Nangloi Sanjay Gandhi Memorial Hospital, PW13 SI Manoj Kumar, PW14 SI Ravi Shanker (though also examined as PW18 but his examination as PW18 is nonest as per order sheet dated 03.08.2011), PW15 SI Sher Singh, PW16 Insp. Ishwar Singh, Addl. SHO, PS Nangloi, Delhi and PW17 Ct. Om Prakash.
5. In brief the witnessography of the prosecution witnesses is as under: PW1 HC Suresh Kumar is the MHC(M) who proved the relevant entries of Register No. 19 Ext. PW1/A, Ext. PW1/B, Ext. PW1/C and Ext. PW1/D. PW2 Ct. Karamvir is DD writer who deposed that on 1314.07.2004 his duty hours were from 8.00 PM to 8.00 AM. On that day, at about 4.45 AM accused Netar Pal present in the court came in the police post and whatever was stated by Netar Pal to him was reduced into writing by him vide DD no. 30 dated 14.07.2004 PP Nihal Vihar. Thereafter, he produced the accused before incharge PP Nihal Vihar. He left for the spot with accused. He also telephonically informed the SHO in this regard. He 5 of 42 6 FIR No. 606/04 PS Nangloi proved the copy of the DD No. 30 dated 14.07.2004 as Ex. PW2/A. PW3 HC Naresh is the Duty Officer, who deposed that on 14.07.2004 he was posted at Police Station Nangloi and was working as Duty officer from 1.00 AM till 9.00 AM. At about 7.25 AM rukka was produced before him by Ct. Om Prakash sent by SI Ravi Shanker. On the basis of which the FIR was registered. After registration of the FIR the rukka and the copy of FIR were handed over back to Ct. Om Prakash for being delivered to SI Ravi Shanker, IO of the case. He proved the copy of FIR Ext. PW3/A and his endorsement on the rukka at portion encircled red Ext. PW3/B. PW4 Mangal Sain is the father of Ms. Sanju (since deceased) who identified the dead body of his daughter vide his statement Ext. PW4/A signed by him at Point Mark X. PW5 Hira Lal is the brother of Ms. Sanju (since deceased) who identified the dead body of his sister vide his statement Ext. PW5/A signed by him at Point Mark X. 6 of 42 7 FIR No. 606/04 PS Nangloi PW6 HC Surender Kumar is the photographer of Crime Mobile Team, West District who deposed that on being called by the IO, he alongwith the crime team reached at the spot i.e H.No. RZD64, Nihal Vihar and took 11 photographs of the spot on the direction of the IO from different angles and proved the photographs of the spot Ext. PW6/A1 to Ext. PW6/A11 and negatives Ext. PW6/B collectively.
PW7 Ct. Surender who joined the investigation with ASI Sher Singh and Ct. Om Parkash and deposed on the investigational aspects.
PW8 Smt. Shavitri Devi is the mother of Ms. Sanju (since deceased).
PW9 Ct. Dhanraj is the motorcycle rider who delivered the special message at the residence of Ilaqa Magistrate, Joint C.P., DCPIst, IInd & IIIrd and ACP.
PW10 Prem Narain is the uncle (chacha) of Ms. Sanju (since deceased).
7 of 42 8 FIR No. 606/04 PS Nangloi PW11 Insp. Devinder Singh is the draftsman who proved the scaled site plan Ext. PW11/A signed by him at Point Mark X. PW12 Dr. V.K. Jha, Medical Officer, Sanjay Gandhi Memorial Hospital, who conducted the postmortem on the deadbody of the deceased and proved the postmortem report Ex. PW12/A and also proved the subsequent opinion on chunni (Ext. P1) Ext. PW12/B. PW13 SI Manoj Kumar is the Incharge, Mobile Crime Team, West District, who deposed that on 14.072004 on the receipt of the information he reached with his staff alongwith photographer HC Surinder Kumar at the spot i.e H.No. RZD64, Nihal Vihar early in the morning and there the dead body of Sanju wife of accused Netar Pal, present in the Court, was lying and he prepared the detailed report and proved his report Ext. PW13/A signed by him at PointA. PW14 SI Ravi Shanker is the Investigating Officer of the case, who deposed on the investigational aspects and besides proving the other memos also proved the rough site plan of the spot Ext. PW14/A, seizure 8 of 42 9 FIR No. 606/04 PS Nangloi memo of chunni Ext. PW14/B, tehrir Ext. PW14/C, arrest memo of accused Ext. PW14/D, his personal search memo Ext. PW14/E, disclosure statement of accused Ext. PW14/F, pointing out memo Ext. PW14/G, seizure memo of the clothes of the deceased, blood gauze, sample seal given by the doctor to ASI Sher Singh which were later on handed over to him Ext. PW14/H, photographs of the spot Ext. PW6/A1 to A11, chunni Ext. P1.
PW15 SI Sher Singh who joined the investigation with SI Ravi Shanker, Ct. Surender and Ct. Om Prakash and deposed on the investigational aspects and besides proving the other memos also proved the case property chunni Ext. P1, gown Ext. P2 and salwar Ext. P3.
PW16 Insp. Ishwar Singh, Addl. SHO, PS Nangloi, Delhi, who deposed that on 14.07.2004 he went to the spot alongwith SI Ravi Shanker and other police officials alongwith accused Netrapal. He inspected the premises. He instructed the IO SI Ravi Shanker for further investigation. He further deposed that on 27.07.2004 IO SI Ravi Shanker had been transferred from PS Nangloi to PS Punjabi Bagh so further investigation of this case was handed over to him by the SHO. He collected the file from MHC(R) and started further investigation. He collected postmortem report 9 of 42 10 FIR No. 606/04 PS Nangloi from SGM Hospital, photographs of the spot and also obtained the opinion of doctor in respect of chunni as it was used as weapon of offence. He called the draftsman and got prepared the scaled site plan of the spot.
PW17 Ct. Om Prakash who joined the investigation with SI Ravi Shanker and ASI Sher Singh and deposed on the investigational aspects.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of the evidence.
5. Statement of accused Netarpal was recorded u/s 313 Cr.P.C wherein he pleaded innocence and false implication. He has stated that he has been falsely implicated in this case by his in laws who took him to the police station and got him arrested as they were having suspicion that he had killed his wife, so in anger of annoyance, they got him forcibly arrested and the police officials at their instance, framed him in this case. He had neither made any extra judicial confession to the police officials or to father of the deceased nor he had ever made any disclosure statement. The police officials have falsely framed in this case according to the wishes of his in laws. He is a victim of certain wrong presumptions and unfounded 10 of 42 11 FIR No. 606/04 PS Nangloi suspicions.
Accused opted not to lead any defence evidence.
6. I have heard the Ld. Addl. PP for the state and the Ld. Counsel for the accused and have also carefully perused the entire record.
7. The charge u/s 302 IPC against accused Netarpal is that on the intervening night of 13.07.2009 & 14.07.2009 in House No. RZD64, Nihal Vihar, Nangloi he had intentionally committed murder of his wife Sanju and caused her death.
8. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
9. The Hon'ble Supreme Court in case Md. Mannan @ Abdul Mannan Vs. State of Bihar 2011 V AD (SC) 289 has held that in a case based on circumstantial evidence the circumstances from which an inference 11 of 42 12 FIR No. 606/04 PS Nangloi of guilt is sought to be drawn are to be cogently and firmly established. The circumstances so proved unerrignly point towards the guilt of the accused. It should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.
MEDICAL EVIDENCE:
10. PW12 Dr. V.K. Jha, Medical Officer, Sanjay Gandhi Memorial Hospital, who conducted the postmortem on the body of the deceased and proved the postmortem report Ex. PW12/A. He has deposed that the cause of death in this case was asphyxia consequent to ligature strangulation inflicted by the other party. The scalp injury were due to head being struck against rough surface during strangulation. All injuries were antemortem in nature and sufficient to cause death in ordinary course of nature. The postmortem was conducted on 16.07.2004 and time since death was approximately three days.
During his crossexamination PW12 Dr. V.K. Jha, negated the suggestion that the skull injury received by the deceased was possible by 12 of 42 13 FIR No. 606/04 PS Nangloi falling on the ground. He further deposed that the strangulation mark on the neck could be caused by the chunni.
PW6 HC Surinder Kumar is the photographer of the crime mobile team who proved the photographs of the spot and of the dead body Ex. PW6/A to Ex. PW6/A11 and negatives Ex. PW6/B collectively.
The photographs Ex. PW6/A1, A5 & A6 also shows the existence of injuries on the body of the deceased Sanju.
There is nothing in the crossexamination of PW12 Dr. V.K. Jha so as to impeach his creditworthiness. Thus it stands proved on the record that the death of deceased Sanju was homicidal in nature.
TIME SINCE DEATH
11. As per the postmortem report of the deceased Ex. PW12/A the postmortem was conducted on 16.07.2004 at 11.00 AM and time since death was approximately three days. On simple arithmetical calculation the approximate time of death comes to at about 11.00 AM on 13.07.2004.
13 of 42 14 FIR No. 606/04 PS Nangloi In the circumstances, the approximate time of death of the deceased from the postmortem report Ext. PW12/A stands established as at about 11.00 AM on 13.07.2004.
INFORMATION OF CRIME TO THE POLICE
12. PW2 Ct. Karamvir in his examinationinchief has deposed that on the night of 13 & 14.07.2004 he was posted as DD writer at Police Post Nihal Vihar, Police Station Nangloi. He was on duty from 8.00 PM to 8.00 AM. At about 4.45 AM accused Netarpal present in the Court came in the Police Post whatever was stated by Netarpal to him was reduced into writing vide DD No. 30 dated 14.07.2004, PP Nihal Vihar. He proved the copy of the DD No. 30 dated 14.07.2004, PP Nihal Vihar as Ex. PW2/A. He further deposed that thereafter, he produced the accused before PP Incharge Nihal Vihar, who left for the spot with the accused. He further deposed that he also telephonically informed the SHO in this regard .
The DD No. 30 dated 14.07.2004 recorded at 4.45 AM interalia is to the effect that at 4.45 AM accused Netarpal came at Police Post Nihal 14 of 42 15 FIR No. 606/04 PS Nangloi Vihar and stated that he was married with Sanju D/o Sh. Mangal Sain about 8/9 years ago and after the marriage he is having two sons and is living at Nihal Vihar for the last four/five years. His wife Sanju used to work in kothies in Paschim Vihar and was having illicit relations with somebody in Paschim Vihar. There used to be a quarrel on this issue and today also a quarrel had taken place on this issue. He and her wife were in the room at the ground floor and the rest of the family members and his children were sleeping on the roof. He tried his best to make understand his wife but she was threatening of taking divorce. On which being under provocation (taish) he throttled/pressed the neck of his wife with his hands on which she became unconscious and murdered her by putting in her neck a noose (fanda) of a white colour chunni which was lying nearby and made her laid straight on a cot and after being satisfied that she has died, thereafter, untied the noose/knot of the chunni. He committed the murder of his wife by throttling/pressing her neck and by putting a noose of chunni in her neck on the suspicion of her having illicit relations. He can get recover the dead body of his wife and a white colour chunni from his residential house.
From above it is clearly indicated that the entire case of the prosecution hinges upon DD No. 30 Ex. PW2/A dated 14.07.2004 recorded 15 of 42 16 FIR No. 606/04 PS Nangloi at 4.45 AM.
A careful examination of DD No. 30 dated 14.07.2004 Ex. PW2/A indicates that accused Netarpal immediately after the alleged murder straight away come to the Police Post Nihal Vihar and got recorded the said alleged confessional DD No. 30 Ex. PW2/A. It is also further been indicated that it is the accused Netarpal and the police who are privy to the said confessional statement reduced into the form of DD No. 30 Ex. PW2/A and nobody else.
It is to be noticed that in judging whether a statement made by an accused to a confession or not, it is first to be seen whether it is self inculpatory as a whole or whether it contains some exculpatory statement relating to a fact which, if true, would establish his innocence vide Narayana Swami v. Emperor, AIR 1939 PC 47: (40 Cri LJ 364). Secondly, it has to be considered whether the portion of the statement sought to be relied upon is severable from the rest of the statement which is selfin culpatory. If the first information report made by an accused person contains facts relating to motive, preparation and opportunity to commit the crime, 16 of 42 17 FIR No. 606/04 PS Nangloi with which he is charged, and the facts recited therein are selfinculpatory in the sense that the narrative describing the deceased gives the motive for the crime with which the accused is charged, the whole statement must in our opinion be treated as a confession made to a police officer and would be hit by Section 25 of the Evidence Act.
In the present case, in the first information report Ext. PW3/A which has been registered on the basis of DD No. 30 Ext. PW2/A the accused narrated as to in what manner he committed the murder and how the murder was committed by him. Therefore, no part of it can be separated and treated as admission. The entire statement appears to be a confession and no part of it can be used as admission under section 21 of The Evidence Act.
TIME OF ARREST OF ACCUSED NETARPAL:
13. PW14 SI Ravi Shankar, IO in his examinationinchief has deposed that accused was arrested vide arrest memo Ext. PW14/D and his personal search was conducted vide memo Ext. PW14/E. The perusal of arrest memo Ext. PW14/D shows that in column no. 6 of Date and Time of 17 of 42 18 FIR No. 606/04 PS Nangloi arrest, except mentioning as "14.7.04 at" time of arrest of accused has not been mentioned. Why time of arrest of accused has not been mentioned? What was the hurry not to mention the time of arrest of accused in the arrest memo Ext. PW14/D. Nonmentioning of time of arrest gives substance to the submission of Ld. Counsel for the accused that the investigation was conducted in a mechanical manner at the instance of inlaws of the accused i.e the parents and brother of the deceased. It creates doubt and suspicion in the prosecution case and does not rule out false implication.
14. Now let the testimonies of the prosecution witnesses be perused and analysed.
PW2 Ct. Karamvir has deposed that after the recording of DD No.30 dated 14.07.2004 Ex. PW2/A he produced the accused before Police Post Nihal Vihar who left for the spot with accused.
PW2 Ct. Karamvir has not disclosed the name of accused at Police Post Nihal Vihar, however, PW14 SI Ravi Shanker in his examinationinchief has deposed that on 14.07.2004 he was posted as Incharge Police Post Nihal Vihar, Police Station Nangloi. He has further 18 of 42 19 FIR No. 606/04 PS Nangloi deposed that on that day at about 4.45 AM he was present at the Police Post Nihal Vihar. He received DD No. 30 Ex. PW2/A. He alongwith ASI Sher Singh (PW15), Ct. Surinder (PW7), Ct. Om Prakash (PW17) and accused Netarpal went to the house of accused Netarpal at RZD64, Nihal Vihar, Nangloi.
It is also to be noticed that the said part of the testimony of PW14 SI Ravi Shanker is not corroborated by PW2 Ct. Karamvir who has only deposed that he produced the accused before Incharge Police Post Nihal Vihar who left for the spot with the accused as mentioned herein above.
The testimony of PW2 Ct. Karamvir is totally silent that PW14 SI Ravi Shanker left with accused Netarpal for the spot alongwith ASI Sher Singh (PW15), Ct. Surinder (PW7) and Ct. Om Prakash (PW17).
Further the testimony of PW14 SI Ravi Shankar and PW2 Ct. Karamvir is not corroborated by PW7 Ct. Surinder and PW17 Ct. Om Prakash.
19 of 42 20 FIR No. 606/04 PS Nangloi PW7 Ct. Surinder has deposed that ASI Sher Singh (PW15), Ct. Om Prakash (PW17), he and accused Netrapal left for the spot. The testimony of PW7 Ct. Surinder is totally silent that SI Ravi Shanker (PW14) was also accompanying them at that time.
PW17 Ct. Om Prakash has deposed that he accompanied ASI Sher Singh (PW15), SI Ravi Shanker (PW14) alongwith one Netarpal gone to his house no. RZD64, Nihal Vihar, Nangoloi. The testimony of PW17 Ct. Om Prakash is totally silent that PW7 Ct. Surinder was also accompanying them at that time.
15. PW14 SI Ravi Shanker in his examinationinchief has deposed that on 14.07.2004 at Police Post Nihal Vihar, he received DD No. 30 Ex. PW2/A at about 4.45 AM and he alongwith ASI Sher Singh (PW15), Ct. Surinder (PW7), Ct. Om Prakash (PW17) and accused Netarpal went to the house of accused Netarpal at RZD64, Nihal Vihar, Nangloi.
PW7 Ct. Surinder in his crossexamination has deposed that he reached at the spot at about 5.00 AM. While his testimony is not corroborated by PW15 SI Sher Singh who in his crossexamination has 20 of 42 21 FIR No. 606/04 PS Nangloi deposed that they reached at the spot at 5.45 AM.
16. PW15 SI Sher Singh in his crossexamination has deposed that "About 3040 persons were already present at the spot when we reached at the spot."
"Father and brother of deceased were already present."
When accused Netarpal after committal of alleged murder in the early morning hours at 4.45 AM on 14.07.2004 had straightway come to Police Post Nihal Vihar and got lodged DD No. 30 (Ex. PW2/A). Acting on the said DD No. 30 Ex. PW2/A police had reached at the spot then how it could be 3040 persons were already present at the spot when police reached at the spot and father and brother of the deceased were already present there. No plausible explanation has been placed on the record by the prosecution in this regard. It creates doubt and suspicion in the prosecution case. It appears that death of deceased has not occurred at the time (in the intervening night of 1314.07.2004) which has been attempted to be made out from DD No. 30 Ex. PW2/A. It must have occurred prior to that time. Had it not been so then there was not any circumstance or reason for the crowd of 30/40 21 of 42 22 FIR No. 606/04 PS Nangloi persons being already present at the spot before the reaching of the police and father and brother of the deceased had already been present at the spot.
In the circumstances, the testimony of PW14 SI Ravi Shanker, IO and PW15 SI Sher Singh as to what they have deposed in their examinationinchief that father of the deceased Mangal Sain (PW4) and brother Hira Lal (PW5) also reached at the spot and they identified the dead body of deceased Sanju W/o Netarpal has become nullified and cast a shadow on the investigation carried out.
PW10 Prem Narain uncle of the deceased Sanju in his examinationinchief has deposed that on the night of 1314.07.2004 his nephew (PW5 Hira Lal) had come to him and stated that accused had throttled Sanju and killed her.
During his crossexamination PW10 Prem Narain has deposed that his nephew (PW5 Hira Lal) had come to him at about 5.00 AM on 14.07.2004. He had mentioned in his statement to the police that his nephew had come to him and stated that accused had throttled and killed Sanju (Confronted with statement Mark P10A, where is is not so recorded).
22 of 42 23 FIR No. 606/04 PS Nangloi However, testimony of PW10 Prem Narain is not corroborated by the testimony of his nephew (PW5 Hira Lal) who has not uttered a single word in the entire testimony that on the intervening night of 1314.07.2004 at about 5.00 AM he had gone to the house of his uncle PW10 Prem Narain and had informed him about the incident.
From above the fact to be noted is that PW10 Prem Narain had received information about the incident on the night of 1314.07.2004 or at about 5.00 AM on 14.07.2004. While as per PW15 SI Sher Singh they (police party) reached at the spot at 5.45 AM on 14.07.2004. It clearly shows that death of Sanju has not occurred at the time (in the intervening night of 1314.07.2004) which has been attempted to be made out from DD No. 30 dated 14.07.2004 Ex. PW2/A. It (death of deceased Sanju) must have occurred prior to that. Had it not been so then how PW10 Prem Narain came to know about the incident on the night of 1314.07.2004 as deposed by him in his examinationinchief or at 5.00 AM on 14.07.2004 as deposed by him in his crossexamination as discussed hereinabove.
Either PW10 Prem Narain is telling a lie or PW15 SI Sher Singh is telling a lie or DD No. 30 Ex. PW2/A has been falsely recorded/created at 23 of 42 24 FIR No. 606/04 PS Nangloi 4.45 AM on 14.07.2004 'as a cover up operation'.
PW5 Hira Lal is the brother of the deceased, who in his cross examination conducted on behalf of accused recorded on 01.08.2005 has deposed that on 14.07.2004 after receiving information regarding death of his sister, he went to her house. Police officials were present there.
However, during his crossexamination conducted on behalf of accused recorded on 05.07.2005 PW5 Hira Lal deposed that accused was in PP (Police Post) when he went to the house of his sister on 14.07.2004. Police was present at the house of her sister when he reached there. Police and father of accused had come to his house and informed him (PW5) about death of his sister. He did not see Netarpal on 14.07.2004.
A close scrutiny of the testimony of PW5 indicates that he was informed by the police and father of accused about the incident, thereafter, he went to the house of his sister. Though it has nowhere come on the record in the testimony of any of PWs namely PW7 Ct. Surinder, PW15 SI Sher Singh, PW14 SI Ravi Shanker, IO, PW17 Ct. Om Prakash that PW5 Hira Lal was informed by the police or father of the accused about the incident on 24 of 42 25 FIR No. 606/04 PS Nangloi 14.07.2004.
Even if, the above said part of the testimony of PW5 is taken as true for the sake of arguments, no source of information about accused being in Police Post on 14.07.2004 when he (PW 5 Hira Lal) went to his sister's house has been disclosed. Nor it has been stated/disclosed at what time, on which date he was informed about the incident by the police and father of accused.
It clearly establishes on record that PW5 Hira Lal was already in the know the fact that accused Netarpal was already in the custody of police and in order to support the prosecution story, he has made a futile attempt of churning out a false theory of he being informed about the incident by police and father of the accused.
It is well settled that men may lie but not the circumstances.
17. PW4 Mangal Sain is the father of deceased, who in his examinationinchief has deposed that on 14.07.2004 at about 4.00 AM the accused knocked at the door of his house and told him that he has killed his 25 of 42 26 FIR No. 606/04 PS Nangloi (PW4) daughter.
During his crossexamination conducted on behalf of accused, PW4 Mangal Sain has deposed that he had told the police that on 14.07.2004 at about 4.00 AM the accused had knocked at the door of his house and told him that he has killed his (PW4) daughter. (Confronted with statement Mark P4/D, where it is not so recorded). However, during the later part of crossexamination conducted on behalf of accused, PW4 Mangal Sain has taken a complete 'UTurn' and has stated that he had never told the police on 14.07.2004 or on any day thereafter, that accused had come to his house at 4.00 AM on 14.07.2004 or had attempted before him that he (accused) had killed PW4 Mangal Sain's daughter.
From above it is clearly indicated that PW4 Mangal Sain is totally inconsistent. This part of his testimony is of no worth.
PW4 Mangal Sain during his crossexamination by Ld. Addl. PP for state has deposed that accused was not present at his (accused) house 26 of 42 27 FIR No. 606/04 PS Nangloi when he (PW4) went there. He (accused) was in police chowki.
During his crossexamination by Ld. Counsel for accused, PW4 Mangal Sain has deposed that it is correct that on 14.07.2004 the accused was in police chowki and was never produced before him by the police.
It clearly indicates that PW4 Mangal Sain when went to the house of accused on 14.07.2004, accused was not there at the house but the accused was in police chowki.
The question arises how PW4 Mangal Sain knew that accused was present at police chowki. What was his source of information regarding this? No source of information regarding accused being in police chowki on 14.07.2004, when he (PW4 Mangal Sain) went to his (accused) house, has been disclosed.
It clearly establishes on record that PW4 Mangal Sain was already in the know of the fact that accused Netarpal was already in the custody of police and he has made a futile attempt to give a credibility to the prosecution story spinned out after the recording of DD No. 30 Ex. PW2/A 27 of 42 28 FIR No. 606/04 PS Nangloi dated 14.07.2004 at 4.45 AM.
A death blow has been caused to the testimony of PW4 Mangal Sain by PW14 SI Ravi Shanker, IO who during his crossexamination has deposed that "It is correct that father of deceased was already with us before the arrest of accused and before his disclosure statement and before any interrogation."
PW14 SI Ravi Shanker, IO during his crossexamination deposed that "It is further wrong to suggest that we were in receipt of first hand information".
It means police was not in receipt of first hand information by way of DD No. 30 dated 14.07.2004 Ex. PW2/A recorded on 4.45 AM as has been attempted to be made out and such information was available prior to receipt of information by the police by way of said DD No. 30 Ex. PW2/A. 28 of 42 29 FIR No. 606/04 PS Nangloi But in another breath PW14 SI Ravi Shanker, IO during his crossexamination has deposed that "I cannot say whether the police was first to receive the information about the death of deceased Sanju".
From above it is clearly indicated that PW14 SI Ravi Shanker, IO has contradicted himself.
If PW14 SI Ravi Shanker, IO is sure and certain while negating the above said suggestion that "it is wrong to suggest that police was in receipt of first hand information" then how he became unsure and unstable in stating that he cannot say whether the police was first to receive the information about the death of deceased Sanju.
In the circumstances, the following part of testimony of PW14 SI Ravi Shanker deposed during his crossexamination "It is wrong to suggest that information was received by or from other sources and also through the father and family of deceased and we fabricated the evidence/record subsequently".
29 of 42 30 FIR No. 606/04 PS Nangloi "It is wrong to suggest that we did not conduct fair investigation in this case and falsely implicated the accused at the instance of family of deceased and also on our on conclusion and suspicion". does not inspire confidence and knocks out the bottom of the case of prosecution. Moreso when PW14 SI Ravi Shankar, IO during his cross examination has categorically deposed that "It is correct that father of deceased was already with us before the arrest of accused and before his disclosure statement and before any interrogation."
In the circumstances, not only the recording of DD No. 30 Ex. PW2/A on 14.07.2004 at 4.45 AM in the mode and manner regarding which Ct. Karamvir has deposed creates doubt and suspicion but also the investigation carried thereupon regarding which PW7 Ct. Surinder, PW17 Ct. Om Prakash, PW15 SI Sher Singh and PW14 SI Ravi Shanker, IO have deposed.
Once the recording of DD No. 30 Ext. PW2/A on 14.07.2004 at 4.45 AM creates doubt and suspicion, the disclosure statement Ext.
30 of 42 31 FIR No. 606/04 PS Nangloi PW14/F, pointing out memo Ext. PW14/G, seizure memo of chunni (Ext. P1) Ext. PW14/B and the pursuant recovery of dead body of Sanju at the instance of accused has also become questionable and does not rule out false implication.
This conclusion is further been fortified by the postmortem report Ex. PW12/A. In the postmortem report Ext. PW12/A time since death has been given as approximately three days. Postmortem was conducted on the body of deceased Sanju by PW12 V.K. Jha on 16.07.2004 at 11.00 AM. On simple arithmetical calculation the time of the death of the deceased Sanju approximately comes to 13.07.2004 at about 11.00 AM which means body of deceased was lying since 13.07.2004 at or about 11.00 AM within a period of 17 hours and 45 minutes (approximately) that is from 13.07.2004 at 11.00 AM (approximately) till 14.07.2004 at 4.45 AM when DD No. 30 Ex. PW2/A was recorded, the factum of death of deceased must have become a matter of common knowledge among the family members of the deceased as well as the neighbours which has been clearly established on the record from the testimony of PW15 SI Sher Singh when during his crossexamination he has deposed that 31 of 42 32 FIR No. 606/04 PS Nangloi "About 3040 persons were already present on the spot when we reached at the spot."
"Father and brother of the deceased were already present".
As I have also discussed hereinabove, had the factum of death of deceased was not a matter of common knowledge then how is it possible that crowd of 3040 persons was already present at the spot and father and brother of deceased were already present at the spot, when police party alongwith accused on receipt of DD No. 30 Ex. PW2/A reached at the spot on 14.07.2004.
In the circumstances, there appears to be substance in the plea of the Ld. Counsel for the accused that the recording of DD No. 30 Ex. PW2/A is the handiwork of family members of the deceased in collusion with the police.
This gives credence to the statement of accused recorded u/s 313 Cr.P.C that he has been falsely implicated in this case by his in laws who took him to the police station and got him arrested as they were having suspicion that he had killed his wife, so in anger and annoyance, they got 32 of 42 33 FIR No. 606/04 PS Nangloi him forcibly arrested and the police officials at their instance, framed him in this case. He had neither made any extra judicial confession to the police officials or to father of the deceased nor he had ever made any disclosure statement. The police officials have falsely framed in this case according to the wishes of his in laws. He is a victim of certain wrong presumptions and unfounded suspicion.
There is no eye witness in the case and it rests solely on circumstantial evidence. Except taking the cover of DD No.30 Ext. PW2/A, (which otherwise hit by Section 25 of The Indian Evidence Act), no independent circumstantial evidence has been proved on the record by the prosecution which may unerringly point towards the guilt of the accused.
EXTRA JUDICIAL CONFESSION OF THE ACCUSED
18. Now let the evidence with regard to extra judicial confession on the record be perused and analysed.
PW8 Smt. Savitri Devi, mother of the deceased during her cross examination by Ld. Addl. PP for the state has deposed that 33 of 42 34 FIR No. 606/04 PS Nangloi "It is correct that after coming to know about death of my daughter I had coming to PP and in my presence and in presence of police the accused had admitted that he had killed his wife Sanju by strangulating (GALA GHOT KAR) her".
During her crossexamination conducted on behalf of accused recorded on 07.09.2005 PW8 Smt. Savitri Devi has deposed that "I had reached the PP at about 6.30 AM on 14.07.2004. My statement was recorded by the police. I had told the police that I had reached the PP where accused had admitted having killed my daughter in my presence, however, I do not know whether or not police had written the same in my statement. (Attention of witness is drawn to statement Mark P8A portion X to X where the word used is "VAHAN" but there is no mentioned of the witness having reached the PP".
While during her crossexamination recorded on 24.10.2005 PW8 Smt. Savitri Devi had taken a complete 'UTurn' and had deposed that "I had not made any statement of the police on the 14th. I had met the police about two months after 14th when my daughter expired. I myself had not gone to the police and had not made any statement to the police during those two months after the death of my daughter. I had not made any statement to the police even after 2 months of death of my daughter. Infact I 34 of 42 35 FIR No. 606/04 PS Nangloi had never made any statement to the police after the death of my daughter. I had never been interrogated by the police on the day of death of my daughter nor within two months thereafter. I of my own had not gone to police to tell them anything during that period."
In the circumstances, the testimony of PW8 Smt. Savitri Devi does not inspire confidence and the theory of extra judicial confession as propounded by Smt. Savitri Devi during crossexamination as conducted by Ld. Addl. PP for the state falls flat to the ground during the cross examination conducted on behalf of the accused as discussed hereinabove. Moreover, the testimony of PW8 Smt. Savitri Devi is not supported by any evidence on the record.
Further PW4 Mangal Sain father of the deceased during his examinationinchief has deposed that "On 14.07.2004 at about 4.00 AM the accused knocked at the door of my house and told me that he had killed my daughter."
While during his crossexamination conducted by Ld. Counsel for the accused he has deposed that 35 of 42 36 FIR No. 606/04 PS Nangloi "I had told the police that on 14.07.2004 at about 4.00 AM the accused had knocked at the door of my house and told me that he had killed her my daughter. (Confronted with statement Mark P4D where it is not so recorded)".
In the later part of his crossexamination PW4 Mangal Sain has taken a somersault and deposed that "I had never told the police on 14.07.04 or on any day thereafter that accused had come to my house at 4.00 AM on 14.7.04 or had admitted before me that he had killed my daughter".
In the circumstances, the testimony of PW4 Mangal Sain does not inspire confidence and is totally unreliable.
In view of above, the prosecution has failed to prove the theory of extra judicial confession of the accused as propounded during the course of leading of the prosecution evidence on the record.
36 of 42 37 FIR No. 606/04 PS Nangloi MOTIVE OF CRIME
19. In case State of UP Vs. Babu Ram, 2000 III AD (SC) 319, the Hon'ble Supreme Court has observed as under: "Motive is a relevant factor in all criminal cases whether based on the testimony of eye witnesses or circumstantial evidence. The question in this regard is whether the prosecution must fail because it failed to prove the motive or even whether inability to prove motive would weaken the prosecution to any perceptible limit. No doubt, if the prosecution prove the existence of a motive it would be well and good for it, particularly, in a case depending on circumstantial evidence, for such motive could than be counted as one of the circumstances. However, it is generally a difficult area for any prosecution to bring on record what was in the mind of the respondent."
As regards motive for the crime nothing has been proved on the record by the prosecution whatever has come in the testimony of PW4 Mangal Sain, PW5 Hira Lal, PW8 Smt. Savitri Devi and PW10 Prem Narain is totally vague, contradictory and inconsistent.
As per the prosecution case vide DD No. 30 dated 14.07.2004 Ex. PW2/A accused Netarpal suspected the deceased of having illicit relations with a boy in Paschim Vihar which constitute the motive of accused for 37 of 42 38 FIR No. 606/04 PS Nangloi committal of the crime.
PW14 SI Ravi Shanker who is the investigating officer in his crossexamination has deposed that "It is correct that we could not find any public witness who could suggest us the motive of so called murder or suicide or this incident. There is no independent corroboration, either from neighbours, locality or social circle that accused had any reason to kill the deceased except the parents of the deceased".
"As per our record, accused alleged illicit relations of his wife with some other boy. It is correct that we did not either tried to find out the said boy or interrogated him to find out the truth".
PW4 Mangal Sain father of the deceased in his examinationin chief has deposed that on account of harassment her daughter started working thereupon the accused started suspected her daughter. While during his crossexamination PW4 Mangal Sain was confronted with his statement made to the police where it was not so recorded.
38 of 42 39 FIR No. 606/04 PS Nangloi The relevant part of his crossexamination as reproduced and reads as under : "I had told to the police that on 14.07.2004 at about 4.00 AM the accused had knocked at the door of my house and told me that he had killed her my daughter. (Confronted with statement Mark P4D where it is not so recorded). I had told the police on 14.07.04 that my daughter used to be harassed by the accused and that he suspected her character. (Witness had stated earlier that police did not ask him in this regard) (Confronted with statement Mark P4D where there is no mention of any harassment by accused or his suspecting the character of his wife. Only mention regarding character comes in this statement in reference to the alleged confession of the accused)".
It constitutes a material improvement and goes to the root of the matter and does not inspire confidence.
PW5 Hira Lal who is the brother of deceased who during his examinationinchief has deposed that his sister used to work in kothies in Pachim Vihar and accused suspected at her character. He negated the suggestion that accused did not suspect character of his sister except for the bare statement nothing has been clarified by PW5 Hira Lal.
39 of 42 40 FIR No. 606/04 PS Nangloi PW8 Smt. Savitri Devi is the mother of the deceased has deposed that accused used to suspect her daughter. Her daughter complained to her that she used to bring money in the house and accused used to suspect her. Her daughter told her that she had asked the accused for divorce but the accused was not ready for the same.
While during her crossexamination she has deposed that she had not mentioned in her statement to the police that her daughter had asked for a divorce but accused was not willing for the same. She cannot tell any date, month or year in that regard, which constitutes a material improvement and goes to the root of the matter and does not inspire confidence.
PW10 Prem Narain uncle of the deceased has only deposed in his examinationinchief that on account of financial difficulties Sanju has started working in kothies but during his entire crossexamination he has not stated anything regarding the motive of the crime.
In the circumstances, prosecution has failed to prove motive for the committal of crime in the present case.
40 of 42 41 FIR No. 606/04 PS Nangloi
20. From evidence existing on record prosecution has miserably failed to prove cogently and firmly all the circumstantial components, elements and links which may point towards the guilt of the accused that the confessional DD No. 30 dated 14.07.2004 at 4.45 AM Ext. PW2/A (which otherwise hit by Section 25 of The Indian Evidence Act) was voluntarily got recorded by the accused; that at the time of recording of DD No. 30 dated 14.07.2004 at 4.45 AM Ext. PW2/A, (which otherwise hit by Section 25 of The Indian Evidence Act) accused, the maker and the police to whom it was made, were only the prives to it and none else; that the time since death of the deceased as reflected in the DD No. 30 dated 14.07.2004 Ext. PW2/A, concided with the time opined in the postmortem report Ext. PW12/A; that accused made extra judicial confession of the crime before PW4 Mangal Sain and PW8 Smt. Savitri Devi; that the interrogation, the arrest of accused and recording of his disclosure statement was done in a fair manner and that accused Netrapal had a motive for the committal of crime.
21. In view of above discussion, I am of the considered opinion as far as the involvement of accused Netarpal in the commission of the offence u/s 302 IPC is concerned, the same has not been sufficiently established by the 41 of 42 42 FIR No. 606/04 PS Nangloi cogent and reliable evidence and in the ultimate analysis the prosecution has miserably failed to bring the guilt home to the accused Netarpal beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused Netarpal. I, therefore, acquit accused Netarpal for the offence u/s 302 IPC after giving him the benefit of doubt. Accused Netarpal is on bail. However u/s 437A Cr.P.C the bail bond of the accused Netarpal shall remain in force for six months and he to appear before the Hon'ble Higher Court as and when such court issues notice in respect of any petition filed against this judgment. Announced in the open Court today on 29th Day of month of September, 2012 (MAHESH CHANDER GUPTA) Addl. Sessions Judge- IV/Outer District Rohini/Delhi.
42 of 42