Delhi District Court
State vs . 1)Vinod Kumar, on 2 April, 2019
IN THE COURT OF AJAY GOEL, ADDITIONAL
SESSIONS JUDGE/SPECIAL JUDGE (NDPS),
DWARKA COURTS, NEW DELHI.
Sessions Case No. 440525/2016
State Vs. 1)Vinod Kumar,
S/o Sh. Jai Bhagwan,
R/o Village Sidhhipur Loha, Distt.
Jhajjar, Haryana.
2)Sh. Jai Bhagwan,
S/o Sh. Ram Gopal,
R/o Village Sidhhipur Loha, Distt.
Jhajjar, Haryana.
3)Smt. Murti Devi
W/o Sh. Jai Bhagwan,
R/o Village Sidhhipur Loha, Distt.
Jhajjar, Haryana.
4)Sh. Deepak
S/o Sh. Jai Bhagwan,
R/o Village Sidhhipur Loha, Distt.
Jhajjar, Haryana.
5)Ms. Manisha @ Sonu
W/o Sh. Rohit,
R/o Village Sidhhipur Loha, Distt.
Jhajjar, Haryana.
FIR No. : 129/2013
Police : Najafgarh
Station
Under : 498A/304B/302/34 IPC
Sections
Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 1/99
Date of Institution of case : 02.08.2013
Date of Assignment to this court : 28.07.2017
at the stage of prosecution evidence
Date of Arguments : 26.03.2019
Date of Decision : 02.04.2019
JUDGMENT:
1. The case of the prosecution is that on 05.05.2013 at about 7.28 a.m., accused Vinod informed the police on telephone no. 100 from mobile no. 8285507008 that he had committed the murder of his wife at the house of Ex-Tehsildar Sh. Dharam Singh in Bajrang Enclave near Udaseen Ashram, Najafgarh and he was going to surrender and this information was recorded by ASI Khiladi Ram vide DD no. 7A Ex.PW9/A. On receipt of DD No. 7A, PW-32 Insp. Satish Kumar along with Insp. Tribhuvan Negi, ASI Ram Mehar, ASI Shammi Kapoor and ASI Rakesh Kumar reached the spot at H.No. 11-12, Bajrang Encalve, near Udaseen Ashram, Nangloi, Delhi and found dead body of the deceased lying on the bed Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 2/99 with strangulation marks on her neck. The owner of the house namely Sh. Dharam Singh Sharma and many other public persons were also found at the spot and among them Smt Munni Devi and Sh. Gagan Bhardwaj informed the police that the dead body was of Pinki and she was marred with accused Vinod on 09.12.2008 and she was subjected to harassment and cruelty. Since the death of deceased was within 7 years of the marriage, Insp. Satish Kumar informed the area SDM and also called the crime team at the spot.
2. On 05.05.2013, at about 8.05 a.m., accused Vinod reached at PS Najafgarh and informed ASI Khiladi Ram that he had committed murder of his wife Pinki and the said information was recorded vide DD no. 8A Ex.PW9/B by ASI Khiladi Ram and information was sent to the SHO Insp. Satish Kumar who prepared rukka Ex.PW32/A and sent ASI Shammi Kapoor to PS Najafgarh for registration of the FIR. Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 3/99 Duty officer HC Sunita recorded FIR Ex.PW4/A under section 302 IPC, made her endorsement Ex.PW4/B on the rukka and sent the copies of the FIR to the area MM and Sr. Officers of police through Spl. Massager Ct. Sunil. ASI Attar Singh, in-charge mobile crime team, inspected the scene of crime and prepared inspection report Ex.PW20/A. Ct. Parvesh Kumar, photographer of crime team also took 9 photographs Ex.PW30/A1 to Ex.PW30/A-9 of the scene of crime and proved the negatives of the same as Ex.PW30/B- 1 to Ex.PW30/B-9.
3. During inspection at the spot, two mobile phones Ex.P-1 and Ex.P-2 were found on a stool near the dead body of the deceased and the same were sealed and seized by Insp. Satish Kumar vide memo Ex.PW29/A. The dead body of deceased was shifted to DDU Hospital where the same was examined by Dr. Pallavi Bohra vide MLC Ex.PW27/A.
4. After completion of the proceedings at the spot, Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 4/99 Insp. Satish Kumar returned to the PS where accused Vinod was produced before him and he arrested accused Vinod vide arrest memo Ex.PW29/B and conducted his personal search vide memo Ex.PW29/C. Accused Vinod was interrogated by Insp. Satish Kumar and his disclosure statement was recorded vide memo Ex.PW29/D wherein he disclosed that he had committed the murder of his wife.
5. On 05.05.2013, Sh. Subhasheesha-Tehsildar recorded statement of Smt Munni Devi and Gagan Bhardwaj vide memo Ex.PW1/A and Ex.PW2/A and directed the IO/SHO to take necessary action.
6. During investigation, it revealed that accused Vinod was married with Pinki (since deceased) on 09.12.2008 and after marriage deceased Pinki started residing with him and other accused persons namely Jai Bhagwan(father-in-law), Smt. Murti Devi(mother- in-law), Deepak(brother-in-law) and Manisha(sister-in- law) at her matrimonial house at Village Sidhipur Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 5/99 Loha, Haryana but after some time, all the accused persons subjected deceased Pinki to cruelty for demand of dowry. In the month of February, 2010, deceased was blessed with a son and all the accused persons demanded Rs. 51,000/- in Chhuchhak ceremony which were given to the accused persons. Due to the continuous harassment and cruelty, the family members of the deceased filed a case for maintenance at Tis Hazari Courts, Delhi but after the intervention of the court, accused persons had brought deceased Pinki back to her matrimonial house. In the month of May, 2013 accused Vinod along with his wife deceased Pinki and son started residing in the house of Sh. Dharam Singh Sharma at H.No. 11-12, Bajrang Enclave, near Udaseen Ashram, Nangloi Road, Najafgarh.
7. After discussion with the Sr. Officer of the police and on the basis of the statements recorded by Sh. Subhasheesha, Executive Magistrate, Insp. Satish Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 6/99 Kumar added section 498A/304B/34 IPC in the case.
8. On 05.05.2013, PW-32 Insp. Satish Kumar had deposited two mobile phones and personal search articles in the malkhana with ASI Karambir Singh MHC(M) vide entry Ex.PW35/A in register No. 19.
9. On 06.05.2013, the postmortem on the dead body of the deceased was conducted by Dr. B.N.Mishra vide postmortem report Ex.PW21/A wherein the cause of death was given as ''due to asphyxia caused by manual strangulation''. After postmortem, the dead body of the deceased was handed over to Sh. Shankar Bhardwaj vide memo Ex.PW2/C.
10. On 08.05.2013, accused Jai Bhagwan was arrested at the instance of accused Vinod vide arrest memo Ex.PW29/F from village Sidhipur Loha and his personal search was conducted vide memo Ex.PWS29/G. Accused Jai Bhagwan was interrogated by Insp. Satish Kumar and his disclosure statement Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 7/99 was recorded vide memo Ex.PW32/C. On 08.05.2013, accused Vinod got recovered the jewellery articles Ex.P-3 from his house at village Sidhipur Loha and the same were sealed and seized by Insp. Satish Kumar vide memo Ex.PW29/H. On the same date i.e. on 08.05.2013, Insp. Satish Kumar had deposited one sealed pullanda containing jewellery articles and articles of personal search in the malkhana with ASI Karambir Singh MHC(M) vide entry Ex.PW35/B in register No. 19.
11. On 15.05.2013, SI Ranbir Singh deposited one white colour envelop containing blood gauge piece and one sample seal in malkhana with ASI Karambir Singh MHC(M) vide entry Ex.PW35/C in register No.
19.
12. On 17.05.2013, Sh. Gagan Bhardwaj, brother of deceased produced copy of the complaint, copy of court case order U/S 125 Cr.P.C., list of dowry articles Ex.PW2/G, photograph Ex.PW2/G-1 and marriage card Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 8/99 Ex.PW2/G-2 before Insp. Satish Kumar who seized the same vide seizure memo Ex.PW2/F.
13. On 08.06.2013, Sh. Gagan Bhardwaj also produced one page Ex.P-1 of diary containing the hand writing of deceased Pinki before Insp. Satish Kumar and the same was seized vide memo Ex.PW2/D.
14. On 01.07.2013, Sh. Sanjay produced mobile phone Ex.P-4 before Insp. Satish Kumar stating that the same was used by accused Vinod on 05.05.2013 for calling to the police on telephone no. 100 and the said phone was seized vide seizure memo Ex.PW7/A and Insp. Satish Kumar deposited that mobile phone make Nokia in the malkhana with ASI Karambir Singh MHC(M) vide entry Ex.PW35/D in register No. 19.
15. On 26.07.2013, questioned documents i.e. one diary page written by deceased Pinki and admitted document i.e. 9 pages A-1 to A-7 were sent to FSL Rohini vide RC Ex.PW-35/E through PW-15 Ct. Mohit Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 9/99 and the same were received in the FSL vide receipt Ex.PW35/F.
16. On 29.07.2013, accused Deepak, Murti Devi and Manisha were arrested by Insp. Satish Kumar vide arrest memos Ex.PW32/B, Ex.PW5/A and Ex.PW5/B respectively.
17. After completion of investigation, the charge sheet was filed against all the accused persons for the offence under section 498A/304B/302/34 IPC. Charge against the accused persons:
18. Vide order dated 13.01.2015, the charge for the offences under Section 498A/304B/34 IPC and in alternate charge for the offence under section 302/34 IPC was framed against accused Vinod Kumar, Jai Bhagwan, Murti Devi, Manisha and Deepak to which they pleaded not guilty and claimed trial. Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 10/99 Witnesses examined:
19. Prosecution examined following witnesses in support of its case who are as follows:-
20. PW-1 Smt Munni Devi, is the mother of deceased Pinki. Her deposition will be considered later on.
21. PW-2 Sh. Gagan Bhardwaj is bother of deceased Pinki. His deposition will be considered later on.
22. PW-3 Sh. Dharam Singh Sharma is the owner of house No. 11-12, Bajrang Enclave, Nangloi- Najafgarh Road, New Delhi where the alleged incident of murder of deceased Pinki took place. His deposition will be considered later on.
23. PW-4 HC Sunita is the duty officer who proved the copy of FIR Ex.PW4/A, her endorsement on the rukka Ex.PW4/B and certificate under section 65-B of Indian Evidence Act Ex.PW4/C. Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 11/99
24. PW-5 Ct. Bulli proved the arrest of accused Murti Devi and Smt Manisha @ Sonu vide arrest memos Ex.PW5/A and Ex.PW5/B respectively.
25. PW-6 Sh. Dinesh Kumar is neighbour of family of deceased Pinki. His deposition will be considered later on.
26. PW-7 Sh. Sanjay is the witness from whose mobile accused Vinod allegedly made call to police at 100 number.
27. PW-8 Sh.Suresh Kumar is the witness in whose office panchayat was held between the family members of deceased Pinki and the family members of accused Vinod. His deposition will also be considered later on.
28. PW-9 ASI Khiladi Ram proved copy of DD No. 7A Ex.PW9/A. He also deposed about recording of statement of accused Vinod in daily diary register vide DD no. 8A and proved the same as Ex.PW9/A. He also deposed that accused Vinod came in the duty Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 12/99 officer room and told that he had committed murder of his wife.
29. PW-10 Ct. Pankaj Sharma was working as Deployment officer on 05.05.2013 and deposed that on 05.05.2013 accused Vinod came in the duty officer room and told that he had committed murder of his wife.
30. PW-11 Ct. Sudhir Kumar was working as DD writer on 05.05.2013. He also deposed on the line of deposition of PW-9 ASI Khiladi Ram and PW-10 Ct. Pankaj Sharma.
31. PW-12 HC Hardeep Singh proved the scaled site plan Ex.PW12/A.
32. PW-13 ASI Ram Mehar is the witness who reached at the spot on receipt of DD No. 7A. He deposed that he noticed that there were strangulation marks on the neck of the deceased Pinki. Crime team was called at the spot and dead body was sent to DDU Hospital.
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33. PW-14 ASI Shammi Kapoor was member of the investigation team. He along with Insp. Satish Kumar, SI Tribhuvan Negi, HC Rakesh and Ct. Mohit reached at the spot where they found dead body of one lady aged 24-25 year with marks on the neck. He had also taken the rukka to the PS for registration of the FIR.
34. PW-15 Ct. Mohit was also member of the investigation team and visited the spot along with Insp. Satish Kumar, SI Tribhuvan Negi, ASI Shammi Kapoor and HC Rakesh. He deposed on the line of prosecution story. He further deposed that on 26.07.2013, he took exhibits along with sample seal to FSL Rohini and obtained receipt of FSL.
35. PW-16 Ct. Rajender took the dead body of deceased Pinki to DDU Hospital.
36. PW-17 Ct. Jagdish went to the spot along with DD no. 8A and handed over the same to Insp. Satish Kumar.
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37. PW-18 ASI Rakesh Kumar was also member of the investigating team and deposed in line of the prosecution story.
38. PW-19 Ct. Sunil proved the attested copy of DD No. 12B Ex.PW19/A regarding delivery of copy of FIR to the Area Magistrate and Senior Officers of Police.
39. PW-20 ASI Attar Singh was working as in-
charge Mobile Crime Team on 05.05.2013 and proved detailed report of inspection Ex.PW20/A. He deposed that the scene of the spot was photographed from different angles by Ct. Parvesh.
40. PW-21 Dr. B.N.Mishra conducted postmortem on the dead body of deceased Pinki and proved it as Ex.PW21/A. He deposed that cause of death was due to asphyxia caused by manual strangulation.
41. PW-22 Sh. Shankar Bhardwaj received the dead body of deceased Pinki from DDU Hospital.
42. PW-23 Sh. Subhasheesha, Section Officer was Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 15/99 posted as Tehsildar-cum-Executive Magistrate, Najafgarh, Delhi. He recorded the statement of Smt. Munni Devi and Sh. Gagan Bhardwaj Ex.PW1/A and Ex.PW23/A. He also proved form 25.35 Ex.PW23/A and the other proceedings conducted by him.
43. PW-24 W.Ct. Nivedita proved the PCR Form Ex.PW24/A.
44. PW-25 Sh. Rajesh Kumar Saini, JA, Record Room, Tis Hazari Courts proved record of case bearing No. 442/2/12, PS Ronhola, U/S 125 Cr.P.C. titled ''Smt Pinki and Ors Vs. Vinod' and proved copies of petition, affidavit and application for maintenance as Ex.PW25/A, Ex.PW25/B and Ex.PW254/C.
45. PW-26 Ct. Vikram proved DD No. 33-B Ex.PW26/A.
46. PW-27 Dr. Pallavi Bohra prepared detailed MLC Ex.PW27/A of deceased Pinki and declared her brought dead.
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47. PW-28 Ct. Piyush collected voice recording CD pertaining to DD no. 7A dt. 05.05.2013 Ex.PW28/B from Police control Room, PHQ, New Delhi and handed over the same to IO Insp. Satish Kumar who seized the same vide seizure memo Ex.PW28/A.
48. PW-29 Insp. Tribhuvan Negi was member of the investigation team and deposed in the line of prosecution story. He along with Insp. Satish Kumar, HC Rakesh, HC Shammi Kapoor, ASI Ram Mehar and Ct. Mohit reached at the spot on 05.05.2013 and found deceased Pinki on the bed with strangulation marks on her neck. He deposed about recovery of two mobile phones on the table at the spot which IO seized vide memo Ex.PW29/A. He further proved arrest of accused Vinod by IO Insp. Satish Kumar vide memo Ex.PW29/B and his personal search Ex.PW29/C. He also proved disclosure statement of accused Ex.PW29/D and pointing out memo Ex.PW29/E. He further deposed that on 08.05.2013, Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 17/99 accused Vinod got arrested accused Jai Bhagwan vide arrest memo Ex.PW29/F and his personal search was conducted vide memo Ex.PW29/G. Accused Vinod also got recovered jewellery articles of deceased which Insp. Satish Kumar seized vide memo Ex.PW29/H. He also identified the case property i.e. two mobile phones Ex.P-1 and Ex.P-2 and jewellery articles Ex.P-3(Collectively).
49. PW-30 Ct. Parvesh Kumar is the photographer from mobile crime team and took 9 photographs of the scene of spot from different angles and proved it as Ex.PW30/A1 to Ex.PW30/A9 and its negatives Ex.PW30/B1 to Ex.PW30/B9.
50. PW-31 Sh. Gaurav Aggarwal, Dy. Manager, Bank of Maharashtra, Baprola Branch, N.D. proved statement of account No. 60026938575 for the period from 28.04.2009 to 02.07.2013 and account opening form Ex.PW31/B, his authority letter Ex.PW31/C and certified copy of the statement of Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 18/99 account for the period from 28.04.2019 to 02.07.2013 Ex.PW31/D.
51. PW-32 Insp. Satish Kumar is the IO of the case and deposed in the line of prosecution story. He on receipt of DD No. 7A reached at the spot on 05.05.2013 and found deceased Pinki on the bed with strangulation marks on her neck. He prepared rukka Ex.PW32/A and sent HC Shammi Kapoor to the PS for registration of the case. He prepared site plan Ex.PW32/B. He deposed about recovery of two mobile phones on the table at the spot which he seized vide memo Ex.PW29/A. He interrogated owner of the house Sh. Dharam Singh and his servant namely Sh. Suraj. He further proved the rukka and arrest of accused Vinod vide memo Ex.PW29/B and his personal search Ex.PW29/C. He further deposed that statement of mother and brother of deceased were recorded by Executive Magistrate Sh. Suvasheesha and on the basis of the statements recorded, section Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 19/99 498A/304B/34 IPC were added. He also recorded statement of witnesses under section 161 Cr.P.C. On 08.05.2013, accused Vinod got arrested accused Jai Bhagwan vide arrest memo Ex.PW29/F from outside his house at village Sidhipur Loha, Bahadurgarh, Distt. Jhajjar, Haryana and his personal search was conducted vide memo Ex.PW29/G. Accused Jai Bhagwan was interrogated and his disclosure statement was recorded vide memo Ex.PW32/C. Accused Vinod also got recovered jewellery articles of deceased which Insp. Satish Kumar seized vide memo Ex.PW29/H. He seized the jewellery articles and arrested accused Jai Bhagwan at the instance of accused Vinod. On 08.06.2013, Sh. Gagan Bhardwaj also produced one page having handwriting of his sister deceased Pinki and the same was seized vide seizure memo Ex.PW2/D. On 01.07.2013, one public witness namely Sanjay produced a mobile phone stating that on 05.05.2013, accused Vinod had made Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 20/99 call to telephone no. 100 from the said mobile phone. The mobile phone was seized vide seizure memo Ex.PW7/A. He also collected the account opening form Ex.PW31/A of Smt. Pinki from the Manager, Bank of Maharashtra on 15.07.2013. On 29.07.2013, accused Deepak @ Monu, Murti Devi and Manisha were arrested from Village Sidhipur Loha vide arrest memos Ex.PW34/B, Ex.PW5/A and Ex.PW5/B respectively. He also proved FSL report Ex.PW32/D. He also seized the PCR form and the CD brought by Constable Piyush from the Police Control Room. He also collected the Customer Application Form and CDR, certificate U/S 65 B Indian Evidence Act in respect of the mobile phone of witness Sanjay. He proved attested copies of DD no. 7A as Ex.PW32/E and the attested copy of DD no.11A as Ex.PW32/F. He also identified the two mobile phones recovered at the spot Ex.P-1 and P-2, Jewellery articles Ex.P- 3(Collectively) and one mobile phone make Nokia of Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 21/99 black colour Ex.P-4.
52. PW-33 Sh. Ashok Maurya, Dy. Manager, Aircel Ltd. proved letter of Sh. Shishir Malhotra dt. 29.07.2013 Ex.PW33/A, Certificate U/S 65 B of Indian Evidence Act Ex.PW33/B, certified copy of call details of phone no. 8285507008 for the period from 01.05.2013 to 10.05.2013 Ex.PW33/C, certified copies of Customer Application Form in respect of the aforesaid mobile phone no. in the name of Sh. Sandeep S/o Sh. Jagbir Singh R/o 184, Village Mundka PO Nangloi, N.D. Ex.PW33/D and Cell ID Chart Ex.PW33/E.
53. PW-34 SI(Retd.) Ranbir Singh joined the investigation of the present case with IO Insp. Satish Kumar on 08.05.2013. He deposed about arrest of accused Jai Bhagwan and thereafter recovery of jewellery articles at the instance of accused Vinod from Sidhipur Loha. On 15.05.2013, he collected postmortem report of deceased Pinki along with Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 22/99 exhibits. He further deposed that on 17.05.2013, Sh. Gagan Bhardwaj, brother of the deceased, produced the photocopy of a complaint, copy of court case U/S 125 Cr.P.C., list of dowry articles and marriage photographs of deceased before Insp. Satish Kumar and he seized the same vide seizure memo Ex.PW2/F. On 08.06.2013, Sh. Gagan Bhardwaj also produced one page having handwriting of his sister deceased Pinki before Insp. Satish Kumar and the same was seized by the IO vide seizure memo Ex.PW2/D. On 01.07.2013, one public witness namely Sanjay produced a mobile phone before Insp. Satish Kumar stating that on 05.05.2013, accused Vinod had made call to telephone no. 100 from the said mobile phone. The mobile phone was seized by the IO Insp. Satish Kumar vide seizure memo Ex.PW7/A after sealing the same in a pullanda with the seal of SK. On 29.07.2013, accused Deepak @ Monu, Murti Devi and Manisha were arrested by IO Insp Satish Kumar from Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 23/99 Village Sidhipur Loha vide arrest memos. Arrest memo of accused Deepak is Ex.PW34/B. He also identified jewellery articles Ex.P-3Collectively and one mobile phone make Nokia of black colour Ex.P-4.
54. Thereafter, Prosecution Evidence was closed vide order dated 08.02.2019 on the submissions of the Ld. APP and matter was posted for recording of statement of the accused persons U/s 313 Cr. P. C.
55. Separate statements of the accused persons U/s 313 Cr. P. C. were recorded whereby all the incriminating evidence was put to them to which they denied all allegations and pleaded innocence and submitted that they have been falsely implicated in the present case. They further stated that there was no dowry demand or cruelty from their side though some usual gifts were given to the bride by her family at the time of marriage.
56. Accused Vinod took defence that he is innocent and falsely implicated in the present case. He did not Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 24/99 make any call to the police on telephone no. 100 and has no concern with the alleged mobile phone number 8285507008. He had not confessed before any Duty officer or the IO. He also took defence that he was not present at the house on the day of incident as on 04.05.2013 at about 5.00 p.m, he had gone to his village with his son to attend birthday function of son of his friend namely Hari Om and stayed in the village for the whole night after attending the function. It was Saturday on 04.05.2013 and he left his son with his parents and came to his house at Najafgarh on 05.05.2013 at about 6.00 a.m. and found that his wife Pinki was lying unconscious on the bed and when he checked her, there were no senses on her. On this, he immediately went to his native house at Village Sidhipur Loha and informed his family members about the same. He was asked by his family members to go to the PS for lodging the report. He Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 25/99 came to the PS Najafgarh at around 7.30-8.00 a.m. and instead of lodging his report, he was detained by the police official and was not allowed go anywhere. His signatures were obtained by the police officials on some blank papers. His father was also called by the police on the pretext of some inquiry and he was also falsely implicated.
57. Accused Jai Bhagwan, Mutri Devi and Deepak also deposed in their statement in line of the defence taken by accused Vinod, stating that on the day of incident, accused Vinod was at his village due to birthday function of son of his friend Sh. Hariom and he has been falsely implicated in the present case. Accused Jai Bhagwan further stated that on 08.05.2013, he was called by the police official at PS Najafgarh on pretext of some inquiries and was wrongly arrested in the present case. His signatures were obtained on some blank papers and he did not make any disclosure statement.
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58. Accused Smt Manisha @ Sonu has stated in her statement under section 313 Cr.P.C. that she is innocent and has been falsely implicated in the present case. She took the defence that she was married in the month of March, 2008 before the marriage of his brother Vinod and since then, she was residing in her matrimonial house at village Akhleempur Distt. Gurgaon, Haryana. She never interfered in the matrimonial life of her brother Vinod. On 05.05.2013, she was at her matrimonial house and later on came to know about the death of her bhabi Smt Pinki. She and her parents and brothers have been falsely implicated in this case. When she came to her parental house, she came to know that on 04.05.2013, in the evening, his brother Vinod had come to his house along with his son to attend some function and on 05.05.2013, he had left for Najafgarh in the morning living his son with his parents and was detained by the police when he went there to report Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 27/99 the matter.
59. In support of his defence, accused Vinod also led defence evidence and examined following two defence witnesses.
60. DW-1 Sh. Hariom deposed that on 04.05.2013, there was a function of birthday of his son Harsh at my house. Accused Vinod is resident of his village was also invited by him in the birthday function. On that day accused Vinod had come to his house to attend the function at about 5/5.30 p.m. Many villagers and his relatives had also attended the function. Accused Vinod remained in their house for the whole night and left for his house in the morning on 05.05.2013.
61. DW-2 Sh. Jai Kishan deposed that he is Sarpanch of Gram Panchayat Village Sidhipur since the year 2016. Accused Vinod is resident of his village. On 04.05.2013, there was a birthday function of son of Sh. Hariom at his house in their village. He Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 28/99 had attended the said function. Accused Vinod had also come in the said function at about 5/6 p.m. Many persons of their village had also attended the said function as it was too late, many guests including accused Vinod stayed at the house of Sh. Hariom.
62. After closing of Defence Evidence, matter was posted for final arguments and judgment but on 23.02.2019 Ld. Addl. PP moved an application under section 311 Cr.P.C. for calling of MHC(M) and on no objection of Ld Counsel for the accused persons, application moved by Ld. Addl. PP was allowed and ASI Karambir Singh was examined as PW-35 whose deposition is as follows:-
63. PW-35 ASI Karamveer Singh deposed that on 05.05.2013, he was working as MHC(M). On that day, Insp. Satish Kumar handed over him two pullandas containing two mobile phones of Samsung Reliance.
One pullanda of personal search of accused containing Rs. 165/- only was given to him. He Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 29/99 received and deposited the same in malkhana and made entry in register no. 19 at Sl. no. 3897. The copy of which is Ex.PW35/A(OSR). On 08.05.2013, Insp. Satish Kumar handed over him one sealed pullanda containing jewelleries and personal search memo of accused Jai Bhagwan. He received and deposited the same in malkhana and made entry in register No. 19 at Sl.No. 3904, the copy of which is Ex.PW35/B(OSR). On 15.05.2013, ASI Ranveer Singh handed over him one white colour envelop containing blood gauge piece and one sample seal. He received the same, deposited in malkahana and made entry in register No. 19 at Sl. No. 3917, the copy of which is Ex.PW35/C(OSR). On 01.07.2013, Insp. Satish Kumar deposited one sealed pullanda of mobile phone make Nokia. He received the same, deposited in malkhana and made entry in Register no. 19 at Sl. no. 3960, the copy of which is Ex.PW35/D(OSR). On 26.07.2013, (1) questioned documents containing one diary Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 30/99 page/sheet that was written by deceased Pinki and admitted document 9 pages signature of Pinki A-1 to A-7 was sent to FSL vide RC No. 139/21/2013 through Ct. Mohit Rana. The copy of RC is Ex.PW35/E(OSR). After depositing the same, the receipt was obtained in PS. The copy of which is Ex.PW35/F(OSR).
64. Thereafter, prosecution evidence was closed and supplementary statements of all the accused persons were recorded on 14.03.2019 wherein they again denied all the allegations.
65. I have heard the Addl. PP for the State and Sh.
J.N.Kaushik, Ld. Counsel for the accused persons. The material on record has also been perused. I have given thoughtful consideration to the arguments. ARGUMENTS OF PROSECUTION:
66. Ld. APP has argued that the case of the prosecution has successfully proved its case against all the accused persons by examining the Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 31/99 prosecution witnesses. It is further argued that accused Vinod himself has made a call from mobile phone no. 8285507008 to the police on telephone no. 100 and subsequently surrendered in the PS and made a statement to ASI Khiladi Ram stating that he had committed murder of his wife. It is further submitted that the family members of deceased have categorically deposed that deceased Pinki was subjected to cruelty and harassment by all the accused persons for demand of dowry and the Defence witnesses are the interested witnesses being the resident of the same village and they have come forward at the behest of the accused persons. There is no defect in the investigation as carried on by the investigating officer. It is further argued that the information given by the accused Vinod Kumar on telephone number 100 is admissible under section 27 of the Indian Evidence Act and is sufficient to bring home his guilt. Offence committed by the accused Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 32/99 persons is serious in nature and all the accused persons are equally liable for the offence charged and they should be punished for the same. ARGUMENTS OF DEFENCE:
67. On the other hand, the counsel for the accused persons submitted that all the public witnesses have not supported the case of the prosecution and nothing incriminating has come on record. It is further argued that accused persons have been falsely implicated in this case and accused Vinod had not made any phone call at 100 number or has not made any disclosure statement admitting his involvement in the present case. It is further argued that the prosecution has fallen remarkably short of the standard of proof required to prove the guilt of accused persons in a criminal proceedings. The prosecution must prove its case beyond all reasonable doubts. There is no eye witness of the alleged incident and therefore, it cannot be said that Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 33/99 the accused Vinod was involved in murder of deceased in the present case. It is further stated that the prosecution has failed to prove its case against all the accused persons beyond reasonable doubt and as such all the accused persons deserve to be acquitted.
It is further argued that the prosecution has not been able to prove that the phone in question was belonging to or used by accused Vinod and the person namely Sanjay before whom allegedly the accused had made confession and used his phone has not supported the case of the prosecution at all. The prosecution has also not produced the material witness namely Suraj. It is further argued that mother and brother of deceased examined as PW-1 Smt Munni Devi and PW-2 Sh. Gagan Bhardwaj have not given the specific date and time of alleged harassment and cruelty and demand of dowry and even in their cross examination, they have not supported the case of the prosecution. Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 34/99
68. JUDGMENT RELIED UPON BY LD.DEFENCE COUNSEL.
i)Baijnath & Ors vs. State of Madhya Pradesh, 2016(4) RCR(Criminal) 896; decided by Hon'ble Supreme court;
ii)Satvir Singh Vs. State of Punjab, (2001) 8 SCC 633;
iii)Gangula Mohan Reddy Vs. State of Andhra Pradesh, 2010 (1) SCC 750;
iv)Dr. Jhamman Lal Vs. State (Delhi Administration) 2011 [4] JCC 2932;
v)C.Chenga Reddy and Ors. Vs. State of A.P., (1996) 10 SCC 193;
vi)Sattatiya Vs. State of Maharashtra (2008) 3 SCC 210;
vii)Rajendra Pralhadrao Wasnik Vs. State of Maharashtra (2012), 4 SCC 37;
viii)Raja @ Rajinder vs State of Haryana in Criminal Appeal No. 486 of 2010 dated 10.04.2015;
Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 35/99
ix)Padala Veera Reddy v. State of A.P. and Ors. AIR 1990 SC 79;
x)Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh, AIR 1952 SC 343;
xi)Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 [(1984) 4 SCC 116;
xii)''Ramreddy Rajesh Khanna Reddy and Anr. Vs. State of A.P.''(2006) 10 SCC 17;
xiii)''Bhagat Ram Vs. State of Punjab, AIR 1954 SC 621'';
xiv)Aghnoo Nagesia Vs. State of Bihar, AIR 1966 SC 119;
xv)Mukesh Vs. State Crl. Appeal No. 615/2008 decided by the Hon'ble High Court of Delhi dt. 04.05.2010 xvi)Ram Singh Vs. State of Maharashtra, 1999, Cr. LJ 3763, (Bom);
xvii)State of Punjab Vs. Jagir Singh. (1974) 3 Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 36/99 SCC, 277.
FINDINGS:
69. In the present case, all the accused persons have been charged for the offence under section 498A/304B/302/34 IPC and I will deal with sections 498A/304B/34 IPC and Section 302/34 IPC separately to establish the fact whether prosecution has been able to bring home the case qua the charges framed against them.
70. Observation under section 498A/304B IPC Section 498A IPC 498A. Husband or relative of husband of a woman subjecting her to cruelty.--Who-
ever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may ex- tend to three years and shall also be liable to fine.
Explanation.--For the purpose of this sec- tion, "cruelty" means--
(a)any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 37/99 danger to life, limb or health (whether mental or physical) of the woman; or
(b)harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valu- able security or is on account of failure by her or any person related to her to meet such demand.
Section 304B. Dowry death.--
(1)Where the death of a woman is caused by any burns or bodily injury or occurs oth- erwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation.--For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Pro- hibition Act, 1961 (28 of 1961).
(2)Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.]
71. In order to attract the provisions of section 498A/304B/34 IPC, the testimonies of PW-1 Smt Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 38/99 Munni Devi, PW-2 Sh. Gagan Bhardwaj, PW-3 Sh. Dharam Singh Sharma, PW-6 Sh. Dinesh Kumar and PW-8 Sh. Suresh Kumar are very material. Whole of the case of the prosecution qua offences under sec- tion 498A/304B/34 IPC hinged on the testimonies of these five witnesses. PW-1 Smt. Munni Devi and PW- 2 Sh. Gagan Bhardwaj are mother and brother, re- spectively of deceased Pinki. PW-3 Sh. Dharam Singh Sharma is landlord of the premises where ac- cused Vinod and deceased Pinki were residing at the time of incident. PW-6 Sh. Dinesh Kumar and PW-8 Sh. Suresh Kumar are neighbours of the family of deceased Pinki. Before proceed further, I will first consider the testimonies of these material wit- nesses.
72. The factum of marriage between accused Vinod and deceased Pinki on 09.12.2018 is not disputed. It is also admitted fact that a child was born out Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 39/99 from the said wedlock who is in custody of accused Vinod.
73. PW-1 Smt Munni Devi is the mother of de- ceased Pinki deposed that in the marriage she had given one motorcycle, entire household articles and jewellery articles including one gold chain, one gold ring and silver pajeb to the family members of the accused Vinod. She further deposed that at the time of birth of son of her daughter, she had given cash of Rs. 51,000/- and other articles in Chhuchhak ceremony to the accused persons. Supporting the case of prosecution, she deposed that all the ac- cused persons used to give beatings to her daugh- ter Pinki and on one occasion, Pinki was dragged by the accused persons by pulling her hair and they were intending to kill her daughter. After the birth of son of her daughter Pinki, she was left by the ac- cused persons at their home. On one occasion, she remained at their home for about 11 months for the Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 40/99 first time and for about 5 months for the second time. Her daughter was sent to her matrimonial home after the intervention of panchayat of their relatives and relatives of the accused family. She further deposed that prior to the death of her daughter, the accused persons had demanded Rs. 5 lacs from her and she had given Rs. One lakh in cash to accused Vinod. Two days prior to the death of her daughter Pinki, accused Jai Bhagwan had called her on telephone and stated that why she had given birth to a daughter and he demanded Rs. Four lacs from her and stated that ''ya to chhar lakh rupees de do nahin to achha nahin hoga. She fur- ther deposed that her daughter had been killed by the accused persons on account of demand of dowry as they used to demand dowry from them and at that time she was pregnant. Here, one thing is important to note that in her examination in chief, this witness has supported the case of the prosecu- Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 41/99 tion and levelled allegation of dowry demand and harassment by the accused persons which accord- ing to her was the reason for her death but surpris- ingly in her cross examination, recorded on 26.09.2015, she took U-turn and somersaulted from her examination in chief by stating that her daugh- ter did not tell her anything about any harass- ment by her in-laws for demand of any dowry. She further deposed that she did not receive any phone call from her daughter informing therein that she was being harassed by the accused persons for want of dowry on the day of incident or 2/4 days prior to the date of in- cident. She even deposed that there was no interference of any type by other accused per- sons in the matrimonial life of accused Vinod and her daughter Pinki after the settlement of case of maintenance.
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74. PW-2 Sh. Gagan Bhardwaj, is brother of de- ceased Pinki who deposed in his examination in chief that deceased Pinki and accused Vinod got married on 09.12.2008 at Chanchal Park, New Delhi. In the month of February, 2010, his sister Pinki was blessed with a son. At the time of birth of son of his sister, cash of Rs. 51,000/- and other articles were given to the accused persons in Chhuchhak ceremony at the demand of accused persons. His sister Pinki was pressurized by accused Murti Devi to give the afore- said amount in Chhuchhak. All the accused persons used to give beatings to his sister and harassed her for demand of money and other items. On one occa- sion, his sister Pinki had come to her maternal home due to the beatings given to her by the accused per- sons and on the other occasion, the accused persons had called them saying ''Pinki ko le jao''. Pinki had stayed with them on one occasion for about 11 months and for 5 months on the other occasion. He Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 43/99 had given Rs. 5,000/- and Rs. 10,000/- to accused Vinod for about 8-10 times. Accused Vinod used to pressurize his sister Pinki for bringing money from them. All the accused persons used to demand money from them on the occasion of festivals and used to give beatings to his sister. On one occasion, on some festival he had gone to the matrimonial house of his sister and gave Rs. 2500/- to her which were snatched from her by accused Manisha and Murti Devi and this fact was told to him by Pinki on telephone. Two days prior to the murder of his sister, accused Jai Bhagwan had called his mother on mobile phone and demanded Rs. Four lacs and his mother showed her inability to give the same. Accused Jai Bhagwan had stated that, ''agar chhar lakh rupey nahin de sakte to beti kyon paida ki aur iska anjaam bahut bura hoga.'' This witness also deposed about giving page of one diary written by deceased Pinki and list of dowry articles to IO and identified the hand Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 44/99 writing and signature of Pinki on the said diary page. It is very surprising fact that this witness also took U- turn in his cross examination and negate all the alle- gations levelled by him in his examination in chief. In his cross examination, he deposed that he is not hav- ing any receipt of the items given at the time of mar- riage to his sister. He admitted that Vinod and his family members never demanded any dowry at the time of marriage. He also admitted that the household articles which were given to the accused family at the time of marriage were given by our own. His deceased sister never complained to him regarding demand of dowry and any harass- ment. He further admitted that Vinod and his fam- ily members never demanded Rs. 2500/-, Rs. 5,000/- and Rs. 51,000/- and Rs. 1 lac. He could not tell the exact date, time and year of any alleged demand. He further admitted that he was not present at the time of receiving the telephonic call Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 45/99 prior to the death of his sister for alleged demand of Rs. 4 lacs. He did not have the diary of page Ex.P-1. He had never seen the diary of page Ex.P-1. He could not say with certainty if the hand writing in page Ex.P-1 is of his sister Pinki or not. He further admitted that his statements were not read over to him by the police. Accused persons did not make any demand from him of any dowry. He further admitted that accused Vinod and his sister along with their son were residing separately in rented premises after the settlement of case under section 125 Cr.P.C. filed at Tis Hazari Courts. He also admitted that after the settlement, there was no interference of the family members of the accused Vinod in the matrimonial life of his sis- ter and accused Vinod. His sister was residing separately with her husband and her son from her in-laws for about one year prior to her death. During this period, his sister Pinki Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 46/99 never complained him against accused Vinod for any harassment to her. He could not tell the cause of death of his sister Pinki and he came to know about her death after she had expired. He was informed by the police that they had arrested ac- cused Vinod. He did not receive any phone call from his sister on the day of incident or 2/4 days prior to the incident regarding any harass- ment to her. He admitted that since the ac- cused Vinod was arrested by the police, he had deposed against the accused persons before the police.
75. PW-3 Sh. Dharam Singh Sharma is the land- lord of house No. 11-12, Bajrang Enclave, Nangloi- Najafgarh Road, New Delhi where, as per the story of the prosecution, accused Vinod committed mur- der of deceased Pinki. In his testimony, he deposed that he does not remember the exact month and year, however, 2 ½ years earlier, he had given one Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 47/99 room of his house on rent to Vinod Kumar, resident of village Sidhipur Loha, District Jhajjar, Haryana. Due to old age, he is unable to identify the said Vinod. He is not recollecting the name of the wife of Vinod and his son. On 05.05.2013, police officials told him that Vinod has murdered his wife. He in- formed the mother of wife of Vinod on telephone. He deposed that his servant Suraj had not told him anything. This witness also did not support the case of the prosecution, hence, was cross examined by Ld. Addl. PP wherein he deposed that he is not sure if the accused Vinod present in the court today was the person who had taken the room on rent in his house. He denied the suggestion that he had no- ticed the marks of strangulation on the neck of de- ceased Pinki when he saw the dead body. He fur- ther denied that his servant namely Suraj told him that in the night at about 10.30/11 p.m. accused Vinod had asked him to open the main gate. He ad- Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 48/99 mitted that on 05.05.2013, Suraj had told him that Vinod had demanded the key of the main gate from him at about 4.30/5 a.m. in the morning on 05.05.2013 and thereafter he had gone with his son. During cross examination by Ld. Defence counsel, he deposed that Suraj did not inform him anything about the incident. Re-tracking from his earlier ver- sion given in his examination in chief, he deposed that Suraj also did not tell him that Vinod had de- manded the key of the main gate.
76. PW-6 Sh. Dinesh Kumar was residing in the neighbourhood of family of deceased Pinki in the year 2008. He also attended the marriage of Pinki and accused Vinod solemnized in the year 2008 at Chanchal Park, Delhi. He deposed that once he had asked Pinki about her matrimonial life after her mar- riage and she disclosed that she was being harassed by her husband, parents-in-law, brother-in-law and sister-in-law. A panchayat was organized in this re- Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 49/99 gard in the office of Suresh Pahalwan in between the families of Pinki and the accused person about 3-4 years ago which was attended by him. The matter was settled in the said panchayat by both the par- ties and thereafter Pinki had gone to her matrimo- nial home. Though, this witness also deposed about harassment by accused persons to deceased Pinki but in his cross examination, he deposed that after settlement, Pinki was residing happily in her matrimonial home. He knows that after the aforesaid settlement, Pinki was residing sepa- rately with accused Vinod at Najafgarh. De- ceased Pinki and her family members did not complaint anything to him against any of the accused persons after the aforesaid pan- chayat. He also admitted that after the inci- dent of the present case, the family members of the deceased did not complain to him against any of the accused persons.
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77. PW-8 Sh. Suresh Kumar is property dealer by profession and his office is situated at shop no. 2, Chanchal Park, Najafgarh Road, New Delhi. He also deposed in line of the statement of PW-6 Sh. Dinesh Kumar corroborating the fact of village panchayat in his office between the family members of deceased Pinki and the family members of accused Vinod due to harassment on account of dowry demand by ac- cused Vinod and his family members. Accused Vinod and his family members had assured in the said panchayat that they will not harass Pinki in fu- ture and both the parties had arrived at a settle- ment. When Pinki met him, she stated that she was again being harassed by her husband and in-laws for demand of dowry. He was also cross examined by Ld. Defence counsel wherein this witness de- posed that he cannot tell the date and month of the panchayat but it was held in the year 2011. He does not remember the names of the persons who Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 51/99 had attended the said panchayat apart from the family members of both sides. No documents/com- promise deed regarding the settlement between the parties was prepared on that day. No person from the resident Welfare Association of Chanchal Park had participated in the said panchayat. He is hav- ing family relations with the family of deceased Pinki. He does not know whether the in-laws of Pinki were residing with accused Vinod and Pinki. Perusal of testimony of this witness, I found the same un- trustworthy because this is the witness in whose home, the alleged panchayat took place but he was unable to disclose the names of persons who had at- tended the said panchayat. Even he has admitted that he has family relations with the family of de- ceased Pinki and therefore, the possibility of depos- ing in favour of family of deceased Pinki cannot be ruled out. More so, he is not a sure shot witness of the harassment or dowry demand allegedly being Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 52/99 demanded by the accused persons. Whatever he has deposed is based on hearsay facts. His deposi- tion also comes under cloud because even the fam- ily members of the deceased Pinki i.e. PW-1 Smt Munni Devi and PW-2 Sh Gagan Bhardwaj have not supported the case of the prosecution.
78. In order to attract provisions of section 498A and 304B IPC, prosecution has to prove its case beyond reasonable doubt to the effect that either deceased Pinki had been subjected to cruelty or harassment by her husband or other accused persons or that such cruelty or harassment was for or in connection with demand of dowry. Prosecution has also to prove that such cruelty or harassment is shown to have been meted out to the deceased Pinki soon be- fore her death and the harassment has to be in con- nection with demand of dowry and further that it was the cause of death but perusal of testimonies of all the above witnesses i.e. PW-1 Smt Munni Devi, Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 53/99 PW-2 Sh. Gagan Bhardwaj, PW-3 Sh. Dharam Singh Sharma, PW-6 Sh. Dinesh Kumar and PW-8 Sh. Suresh Kumar reveals that all the essential ingredi- ents of section 498A/304B IPC are totally missing. Testimonies of PW-1 Smt. Munni Devi and PW-2 Sh. Gagan Bhardwaj could have played pivot role to bring home the charges under section 498A/304B IPC against all the accused persons but surprisingly they suddenly thrashed the case of the prosecution in their cross examination and set all the accused persons free from all allegations by deposing that they did not receive any phone call from de- ceased Pinki that she was being harassed by the accused persons for want of dowry on the day of incident or 2/4 days prior to the date of incident. There was no interference of any type by other accused persons in the matrimo- nial life of accused Vinod and deceased Pinki after the settlement of case of maintenance. Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 54/99 Uprooting the case of prosecution, PW-2 Sh. Gagan Bhardwaj even goes to say that he can- not tell the cause of death of his sister Pinki. He further deposed that since the accused Vinod was arrested by the police, he had de- posed against the accused persons before the police.
79. It is worthy to mention here that through in their examination in chief PW-1 Smt. Munni Devi and PW-2 Sh. Gagan Bhardwaj have levelled allegations cruelty and harassment but no action was taken by the family members of deceased. Even there is no document on record to show that any complaint to this effect was ever made before any authority by the family members of deceased. It is also worthy to mention here that though it has come in the testi- monies of public witnesses especially in the testi- monies of PW-1 Smt Munni Devi and PW-2 Sh. Gagan Bhardwaj that they were informed by deceased Pinki Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 55/99 about giving beatings/harassment to her by her in- laws but no specific date and time is disclosed by these witnesses. It has not been also brought on record as to how they got the information regarding the harassment to on account of cruelty who gave such information to them when it was given and what was the mode when the deceased and the accused was living separately from their family members. The call details and phone numbers etc. should have also been mentioned by the complainant so that the facts could have been corroborated. In view of above, though allegations have been levelled but are lacking on the test of corroborating evidence.
80. In the present case, dowry demand have no nexus with the death and it should have been made sometime soon before the death. Reliance has been placed upon by the counsel for the accused on the judgment passed by Hon'ble Supreme Court titled as Baijnath & Ors Vs State of Madhay Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 56/99 Pradesh(Supra), the relevant para 35 wherein it has mentioned that "This Court while often dwelling on the scope and purport of Section 304B of the Code and Section 113B of the Act have propounded that the presumption is contingent on the fact that the prosecution first spell out the ingredients of the of- fence of Section 304B as in Shindo Alias Sawinder Kaur and another vs State of Punjab- (2011) 11 SCC 517 and echoed in Rajeev Kumar vs State of Haryana-(2013)16 SCC 640. In the latter pronounce- ment, this Court propounded that one of the essential ingredients of dowry death under Section 304B of the Code is that the accused must have subjected the woman to cruelty in connection with demand for dowry soon before her death and that this ingredient has to be proved by the prosecution beyond reason- able doubt and only then the Court will presume that the accused has committed the offence of dowry death under Section 113B of the Act." Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 57/99
81. Reliance can also be placed upon judgment passed by Hon'ble High Court of Delhi titled as State Vs. Paramjeet Singh & Ors. In the said judgment, the Hon'ble High Court reproduced the observation made by the Apex Court in case titled as Satvir Singh Vs. State of Punjab, (2001) 8 SCC 633, with respect to the phrase "soon before"
and same is reproduced herein below:-
"It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if section 304-B is to be invoked. But it should have happened "soon before her death."
82. Reliance can also be placed upon judgment titled as Umed Singh & Ors. Vs. The State, NCT of Delhi and titled as Naveen Vs. The State, NCT of Delhi decided by Hon'ble High Court of Delhi. In said judgment, the Hon'ble High Court has discussed the observation of Hon'ble Supreme Court in case titled as Gangula Mohan Reddy Vs. State of Andhra Pradesh, 2010 (1) SCC 750 which are Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 58/99 given below:
"In State of West Bengal V. Orilal Jaiswal and Anr. (1994) 1 SCC 73, this court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide....."
83. Reliance can also be placed upon judgment titled Dr. Jhamman Lal Vs. State (Delhi Administration) 2011 [4] JCC 2932 wherein it was held as under:-
".....It is settled law that if a witness makes even two inconsistent statements- Evi- dence of such a witness cannot be relied upon-No conviction can also be based on such evidence....". It was also held that "......A person cannot be held guilty on mere probabilities-Evidence of witnesses or circumstances surrounding the incident should in a definite tendency and unerr-
ingly point towards the guilt of
accused......."
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84. It is also to worthy to mention here that son of deceased Pinki is also in custody of accused Vinod and he has not married after the death of deceased Pinki which shows his good conduct and liability. I am also of the view that the section under section 498A/304B/34 IPC were added in the case by the po- lice on the allegations of Smt Munni Devi and Sh. Gagan Bhardwaj, mother and brother respectively of deceased Pinki but surprisingly, nobody came on be- half of family members of deceased to pursue the case during trial after their deposition. Even, no- body came on behalf of the complainant to argue in the present case.
85. From all the above facts and circumstances, it is clear that all the public witness have not supported the case of the prosecution and gave contradictory statements to the story of prosecution and rest of the witnesses were only formal witness of arrest and other proceedings of this case and police officials. Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 60/99 No incriminating evidence has come on record against the accused persons in the evidence. The prosecution has miserably failed to prove the allega- tions against all the accused persons for the offence under section 498A/304B/34 IPC. The factum of dowry demand and harassment are totally vanished with the hostile attitude of all the material witnesses of this case. So far not a single evidence has come on record on the basis of which it can be said that deceased Pinki was subjected to cruelty or harassment by her husband or other accused persons or that such cruelty or harassment was for or in connection with demand of dowry. Prosecution has also failed to prove that such cruelty or harass- ment is shown to have been meted out to the de- ceased Pinki soon before her death and the harass- ment has to be in connection with demand of dowry and further that it was the cause of death. Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 61/99
86. In the present case, the role of public witnesses, especially PW-1 Smt Munni Devi and PW-2 Sh. Gagan Bhardeaj is very disappointing considering their contradictory stand during their deposition in the court with regard to the demand of dowry and harassment to deceased resulting in failure of prose- cution to prove its case against any of the accused person. It were PW-1 Smt Munni Devi and PW-2 Sh. Gagan Bhardwaj on whose statement, offences un- der section 498A/304B IPC were added in the present case but their testimonies in total raised se- rious doubts on their credibility and it appears that they have lodged the present case in a fit of rage against accused persons after the death of de- ceased Pinki.
87. In the light of the inconsistencies and contradic- tions in the testimony of aforesaid prosecution wit- nesses and considering overall facts and circum- stances of the case, prosecution has miserably Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 62/99 failed to prove its case against all the accused per- sons for the offence under section 498A/304B/34 IPC. Accordingly, all the accused persons are acquitted for the offence punishable under section 498A/304B/34 IPC.
88. Observation under section 302 IPC Section 302 in The Indian Penal Code
302. Punishment for murder.--Whoever commits murder shall be punished with death, or 1[imprisonment for life], and shall also be liable to fine.
89. It is the case of the prosecution that 05.05.2013 at about 7.28 a.m., accused Vinod informed the po- lice on telephone no. 100 from mobile no. 8285507008 that he had committed the murder of his wife at the house of Ex-Tehsildar Sh. Dharam Singh in Bajrang Enclave near Udaseen Ashram, Na- jafgarh. Charge for the offence under section 302/34 IPC has been framed against all the accused persons but perusal of entire case file, nothing incriminating Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 63/99 has come on record on the basis of which it can be said that the co-accused persons namely Jai Bhag- wan, Murti Devi, Manisha and Deepak were in any way involved for the commission of offence under section 302/34 IPC. It has come in the cross exami- nation of PW-1 Smt. Munni Devi and PW-2 Sh. Gagan Bhardwaj that accused Vinood and deceased Pinki along with their son were residing separately in a rented premises after the settlement of case under section 125 Cr.P.C. filed at Tis Hazari Courts. They have also admitted that there was no interference of the family members of the accused Vinod in the mat- rimonial life of deceased Pinki and accused Vinod. PW-2 Sh. Gagan Bhardwaj has also admitted that his sister was residing separately with her husband and her son from her in-laws for about one year prior to her death. It is not the case of the prosecution that accused Jai Bhagwan, Murti Devi, Manisha and Deepak were also residing along with accused Vinod Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 64/99 at the time of murder of deceased Pinki. So, in view of admission of PW-1 Smt Munni Devi and PW-2 Sh. Gagan Bhardwaj that co-accused Jai Bhagwan, Murti Devi, Manisha and Deepak were not residing with ac- cused Vinod at the time of commission of offence and in the absence of any connecting evidence to connect the accused Jai Bhagwan, Murti Devi, Manisha and Deepak with the commission of offence punishable U/s 302/34 IPC, it cannot be said that they were in- volved in the murder of deceased Pinki. Since ac- cused Jai Bhagwan, Murti Devi, Deepak and Manisha were residing separately from accused Vinod at the time of commissino of offence, there was no occasion for them to commit murder of deceased Pinki or to in- volve in the commission of offence in any manner. Moreover it has also not come in the evidence that the other accused persons other than Vinod Kumar, husband of the deceased were present at the place where the body of the deceased was found. It has Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 65/99 come in the statement of almost all the interested witnesses in clear form that ''there was no inter- ference of any type by other accused persons in the matrimonial life of accused Vinod and her daughter Pinki after the settlement of case of maintenance''. Meaning thereby the com- plainant and other witnesses of the side of the de- ceased have themselves demolished the case of the prosecution. Nothing incriminating, either in the form of oral or documentary, has come on record against accused Jai Bhagwan, Murti Devi, Manisha and Deepak qua commission of offence punishable under section 302 IPC. Hence, they are also acquitted for the offence under section 302/34 IPC.
90. In view of above discussions, since the co-ac-
cused persons namely Jai Bhagwan, Murti Devi, Man- isha and Deepak have been absolved from the com- mission of offence under section 302/34 IPC, now my following observations will decide whether prosecu- Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 66/99 tion has succeeded in bringing home the charge qua accused Vinod Kumar for the offence punishable un- der section 302 IPC or not.
91. Now I will deal regarding the chain of events and the fact whether prosecution has been able to suc- ceed in proving that the chain of event has not been broken coupled with fact that all evidence leads to one conclusion pointing out towards the guilt of the accused Vinod and commission of crime by him. The question before this court is to decide who had com- mitted murder of deceased Pinki.
92. In this fact of the matter, where there is no eye witness of the alleged incident, the case of the prose- cution is now resting upon the produced circumstan- tial evidence, scientific evidence and medical evi- dence. The main factor to be proved on the record is whether circumstantial evidence is such which is un- broken or whether chain is established or not. If the chain is broken, benefit of doubt goes to the accused Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 67/99 but if the chain is unbroken then there is no escape for him.
93. In criminal cases, the cases are decided either on the basis of direct evidence or circumstantial evi- dences and direct evidence may be oral or documen- tary but event of circumstantial evidence is gathered from the chain of circumstances. Sometimes, both prove the case of the prosecution. Herein the present case is such type of case where some type of direct evidence and some electronic evidence are also available and from there, we have to gather the cir- cumstances, completion of chain to see whether the case has been proved or not. Further, in a case based on circumstantial evidence, as per the settled law, the circumstances from which the conclusion of guilt is drawn should be fully proved and such circum- stances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Fur- Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 68/99 ther, the proved circumstances must be consistent only with the hypotheses of the guilt of the accused and totally inconsistent with his innocence, which would mean that the onus lies on the prosecution to prove that the chain of events is complete and not to leave any doubt in the mind of the court, as was ob- served in C.Chenga Reddy and Ors. Vs. State of A.P., (1996) 10 SCC 193, Sattatiya Vs. State of Maharashtra (2008) 3 SCC 210 and Rajendra Pralhadrao Wasnik Vs. State of Maharashtra (2012), 4 SCC 37.
94. Hence, before adverting to the facts of the case, I would like to discuss the law with respect to circum-
stantial evidence when direct evidence is not avail- able. There are numerous judgments on this aspect but I would not like to refer number of judgments. Law is well settled in this regard. Reference can be made to judgment titled ''Raja @ Rajinder vs Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 69/99 State of Haryana in Criminal Appeal No. 486 of 2010 dated 10.04.2015, it was held that:-
"9. From the aforesaid it is clear as day that the Court is required to evaluate the circumstantial evidence to see that the chain of events have been established to see that the chain of events have been established clearly and completely to rule out any reasonable likelihood of the innocence of the accused. Needless to say whether the chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted.
In Padala Veera Reddy v. State of A.P. and Ors. AIR 1990 SC 79 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests :
"(1) the circumstances from which an infer-
ence of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a defi- nite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively 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; and (4) the circumstantial evidence in order to sustain conviction must be complete and inca- pable of explanation of any other hypothesis Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 70/99 than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be incon- sistent with his innocence In Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh, AIR 1952 SC 343, it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first in- stance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
''In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspi- cion may take the place of legal proof and therefore, it is right to recall the warning ad- dressed by Baron Alderson to the jury in Reg. V. Hodge,(1838) 2 Lewin 227) where he said :
"The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 71/99 the individual, the more likely was it, consid- ering such matters, to overreach and mislead, itself to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete."
''It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so estab- lished should be consistent only with the hy- pothesis of the guilt of the accused. Again, the circumstances should be of a conclusive na- ture and tendency and they should be such as to exclude every hypothesis but the one pro- posed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.'' In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 [(1984) 4 SCC 116, it was held that:-
''the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are : Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 72/99
(1) the circumstances from which the conclu-
sion of guilt is to be drawn should be fully es- tablished. The circumstances concerned must or should and not may be established; (2) the facts so established should be consis- tent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclu- sive nature and tendency;
(4) they should exclude every possible hy- pothesis except the one to be proved; and (5) there must be a chain of evidence so com- plete as not to leave any reasonable ground for the conclusion consistent with the inno- cence of the accused and must show that in all human probability the act must have been done by the accused."
Reliance is also placed on ''Ramreddy Rajesh Khanna Reddy and Anr. Vs. State of A.P.''(2006) 10 SCC 17 wherein it was held that:
''It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances can- not be on any other hypotheses. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 73/99 an accused guilty only on the basis of the cir- cumstantial evidence.'' Reliance is further placed on ''Bhagat Ram Vs. State of Punjab, AIR 1954 SC 621'', wherein it was laid down that:-
''where the case depends upon the conclusion drawn from circumstances, the cumulative effect of circumstances must be such as to negate the innocence of the accused and bring the offence home beyond any reasonable doubt.''
95. Ld. Addl. PP has argued that the some portion of the confessional statement of the accused is admissi-
ble under section 27 of Indian Evidence Act is his whole confessional statement is not hit by section 25 of Indian Evidence Act. The prosecution has sought to prove its case against accused on the following cir- cumstances:-
1)Accused Vinod made phone call on 100 num-
ber from mobile no 8285507008 wherein he stated that he had committed the murder of his wife at the house of Ex-Tehsildar Sh. Dharam Singh in Bajrang Enclave near Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 74/99 Udaseen Ashram, Najafgarh and he was going to surrender and this information was recorded by ASI Khiladi Ram vide DD no. 7A Ex.PW9/A.
2)He made extra-judicial confession before PW- 7 Sh. Sanjay about the murder of his wife and used his aforesaid mobile phone no.
8285507008 for making the aforesaid call and he accompanied the accused to the police sta- tion for surrendering before the police.
3) Accused Vinod was seen in his house by one Sh. Suraj, servant of PW-3 Sh. Dharam Singh, landlord of the house and the said Sh. Suraj had told to PW-3 Sh. Dharam Singh that he had seen the accused coming in the night at the house and going in the morning.
4)On 01.07.2013, Sh. Sanjay produced mobile phone Ex.P-4 before Insp. Satish Kumar stating that the same was used by accused Vinod on 05.05.2013 for calling to the police on tele- phone no. 100 and the said phone was seized vide seizure memo Ex.PW7/A.
5)Disclosure statement of accused Vinod Ku- mar Ex.PW29/D recorded by Insp. Satish Kumar wherein he disclosed that he had committed the murder of his wife.
6)Production of one page Ex.P-1 of diary con- taining the hand writing of deceased Pinki by Sh. Gagan Bhardwaj before Insp. Satish Kumar alleging harassment and cruelty by accused persons.
7)Postmortem on the dead body of the de- ceased Pinki vide report Ex.PW21/A wherein Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 75/99 the cause of death was given as ''due to as- phyxia caused by manual strangulation''.
96. As far as death of deceased Pinki is concerned, prosecution has duly proved the fact that the cause of death of deceased was due to strangulation. The postmortem report Ex.PW21/A proved by PW-21 Sh. B.N.Mishra clearly opined the cause of death as ''due to asphyxia caused by manual strangulation''.
97. Ld. Counsel for accused has pointed out several lacunas in the investigation and has submitted that the case of prosecution cannot be accepted as it is culmination of tainted investigation. It has been sub- mitted that there are several lacunas in the investiga- tion and the Investigation Officer failed to carry out the investigation on the expected lines. Investigation is the main component of the Criminal Justice sys- tems. Fair investigation is the right of the accused and tainted investigation is bound to prejudice the accused. It is also a matter of common knowledge that investigating agency sometime fails to carry out Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 76/99 the investigation as per norms. The investigation part in the Criminal Justice system requires lot of improve- ment. The Scientific investigation is also the need of the hour. In the present case also there are certain la- cunas in the investigation and no proper investigation was carried out in this regard to trace the actual au- thor of the crime and due to the alleged strained rela- tions at the instance of family members of the de- ceased, the accused has been falsely implicated to work out the case.
98. Giving weight to his above arguments, it is vehe-
mently argued by Ld. Counsel for the accused per- sons that prosecution has miserably failed to estab- lish the fact that it was accused Vinod who made call on 100 number because the voice sample of accused Vinod was never taken so as to match it with the CD Ex.PW28/B produced by PW-28 Ct. Piyush allegedly pertaining to the call of accused Vinod made on 05.05.21013 on 100 number admitting his crime of Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 77/99 murder of deceased Pinki. I find merits in the con- tention of Ld. Counsel for the accused persons that investigation is lacking on this very crucial fact. Ad- mittedly, there is no eye witness of the crime and the whole of the case of the prosecution is depended on the phone call of accused made on 100 number wherein he alleged to have admitted his crime of committing murder of his wife. Though, PW-28 Ct. Piyush collected voice recording CD Ex.PW28/B per- taining to DD no. 7A dt. 05.05.2013 from Police con- trol Room, PHQ, New Delhi and handed over the same to IO Insp. Satish Kumar who seized the same vide seizure memo Ex.PW28/A but in order to establish the fact that the voice in the CD pertaining to DD No. 7A is actually of accused Vinod or not, the collection of voice samples of accused Vinod were very essential and in absence of any voice sample, it cannot be said and cogently opined beyond reasonable doubt that voice in the CD is of accused Vinod. Further, the gen- Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 78/99 uineness of this CD is under cloud because the same was never sent to FSL for forensic examination and there is no certification from the official concerned under section 65B of Indian Evidence Act with regard to the CD. The arguments of Ld. Counsel for the ac- cused persons also gained weight when I go through the testimony of PW-24 W.Ct. Nivedita who was on duty at police control room on 05.05.2013. She recorded the information in prescribed form received on 100 number at about 7.28 a.m. and proved the PCR Form Ex.PW24/A. During her cross examination, she categorically deposed that the caller did not tell his name and the name of the caller is not mentioned in form Ex.PW24/A. So, in view of de- position of this witness, again serious doubt is raised on the story of prosecution that it was none else but accused who made call at 100 number on 05.05.2013. Reliance placed on Aghnoo Nagesia Vs. State of Bihar, AIR 1966 SC 119 and Mukesh Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 79/99 Vs. State Crl. Appeal No. 615/2008 decided by the Hon'ble High Court of Delhi dt. 04.05.2010.
99. It is most apposite to refer to the law on point of confession discussed in Aghnoo Nagesia Vs. State of Bihar(Supra) wherein the Hon'ble Supreme Court divided the FIR lodged by the accused in 18 parts for the purpose of determining its possibility. Parts 1, 15 and 18 contained recordings pertaining to the fact that the accused went to the police station to lodge the FIR; part 2 and 16 contained recordings pertain- ing to the motive of the accused for committing the murders; part 3,5, 8 and 10 contained recordings per- taining to the movements of the accused before and after the commission of murders; part 8 also con- tained recordings pertaining to intention of the ac- cused; part 4,6, 9, 11 and 12 contained recordings pertaining to admission of guilt by the accused as also his motive for committing the murders and parts 7,13 and 17 contained recordings pertaining to con- Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 80/99 cealment of dead bodies and weapon of offence by the accused and his ability to get recover the same. The Supreme court reiterated the law laid down in Faddi v State of MP AIR 1964 SC 1850 with re- spect to admissibility of an FIR lodged by the ac- cused. Thereafter, it proceeded to determine whether the afore-noted 18 parts of the FIR in ques- tion amount to a confession or not. It was held by Supreme Court that save and except parts 1, 15 and 18 which contained recordings pertaining to the fact that the accused was the maker of the FIR and the parts which came within the purview of Section 27 of Evidence Act, the entire FIR amounts to confession and should be excluded from evidence. The relevant discussion contained in the said decision is being noted herein under:-
''Now, a confession may consist of sev- eral parts and may reveal not only the ac- tual commission of the crime but also the motive, the preparation, the opportunity, the provocation, the weapons used, the Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 81/99 intention, the concealment of the weapon and the subsequent conduct of the ac- cused. If the confession is tainted, the taint attaches to each part of it. It is not permissible in law to separate one part and to admit it in evidence as a non-con- fessional statement. Each part discloses some incriminating fact i.e. some fact which by itself or along with other admit- ted or proved facts suggests the inference that the accused committed the crime, and though each part taken singly may not amount to a confession, each of them being part of a confessional statement partakes of the character of a confession. If a statement contains an admission of an offence, not only that admission but also every other admission of an incrimi- nating fact contained in the statement is part of the confession.
If proof of the confession is excluded by any provision of law such as Section 24, Section 25 and Section 26 of the Evidence Act, the entire confessional statement in all its parts including the admissions of minor incriminating facts must also be ex- cluded, unless proof of it is permitted by some other section such as Section 27 of the Evidence Act. Little substance and content would be left in Section 24, 25 and 26 if proof of admissions of incrimi- nating facts in a confessional statement is permitted.
XXXX If the first information report is given by the accused to a police officer and amounts to a confessional statement, Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 82/99 proof of the confession is prohibited by Section 25. The confession includes not only the admission of the offence but all other admissions of incriminating facts re- lated to the offence contained in the con- fessional statement. No part of the con- fessional statement is receivable in evi- dence except to the extent that the ban of Section 25 is lifted in Section 27.''
100. Present case is rather on the better footing because neither the accused presented himself in the PS with any dead body or part of dead body or with any weapon of offence. The simplicitor the case of the prosecution is that he has confessed in the PS. The case is clearly covered as per the reasoning given by the Hon'ble Supreme Court because as soon as he presented himself in the PS confessing his crime he is deemed to be in Police custody and his confession qua the offence cannot be read as barred under the provisions of law as well as with the pro-
nouncement of the Judgment of Hon'ble Supreme Court. As far as the call regarding 100 number is concerned, same has also not been proved as to Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 83/99 have been made by him or through his number and the person from whose phone the call is allegedly made has denied so when his evidence was recorded. So on all counts this argument of Ld. Addl.PP is not hold water.
101. The next arguments of Ld. Counsel for the accused is that prosecution has also failed to connect the accused Vinod with the phone alleged produced by PW-7 Sanjay.
102. In order to connect the accused Vinod, de- position of PW-7 Sh. Sanjay is very important because as per prosecution story, he was a witness of extra- judicial confession, his phone was used by the ac- cused for calling to the police on number 100 and he accompanied to the accused when he surrendered in the police station. This is the witness who produced alleged mobile phone make Nokia Ex.P-4 before IO Insp. Satish Kumar stating that the same was used by accused Vinod for calling at 100 number on the day Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 84/99 of incident. To clear the cloud, let appreciate the tes- timony of PW-7 Sanjay:-
103. PW-7 Sh. Sanjay deposed that accused Vinod is the resident of his village. His mobile phone was not seized by the police. This witness also did not support the case of the prosecution and therefore cross examined by Ld. Addl. PP. wherein he denied the suggestion that on 05.05.2013 at about 5.30 a.m., accused Vinod had told him that he had committed murder of his wife in his rented house at about 4.30 a.m. It is further wrong to suggest that accused Vinod told him that he had to appear in Po- lice station Najafgarh and he had taken accused Vinod to PS Najafgarh in his car. He further denied that on the way accused Vinod had called 4-5 persons from his mobile phone. He further de- nied that Vinod had called the police on tele- phone no. 100 number from his mobile phone. In his volunteer statement, he stated that he Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 85/99 was not having any mobile phone. He further denied that his statement was recorded by the police. He further denied that he was having mobile phone no. 8285507008. He further deposed that police had obtained his signature on some papers and the contents of the same were not read over to him.
104. Perusal of testimony of this witness reveals that like other public witnesses, this witness also did not support the case of the prosecution. His deposi- tion that he was not having any mobile phone and further denial that he was having mobile phone no. 8285507008 is a big setback for prosecution. The case of the prosecution was heavily relied upon the testimony of this witness to prove the fact that ac- cused Vinod made call at 100 number from his mo- bile no. 8285507008, he made extra judicial confes- sion before him and accompanied him to the police station but with hostile statement of this witness, Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 86/99 prosecution has suffered a big blow and miserably failed to prove this very crucial fact benefit of which certainly goes to the accused Vinod.
105. Further, as per the testimony of PW-33 Sh.
Ashok Maurya who proved certified copy of call de- tails of phone no. 8285507008 for the period from 01.05.2013 to 10.05.2013 as Ex.PW33/C deposed that as per certified copies of Customer Application Form, the aforesaid mobile phone no. is in the name of Sh. Sandeep S/o Sh. Jagbir Singh R/o 184, Village Mundka PO Nangloi, N.D. as Ex.PW33/D. As per story of the prosecution, the mobile phone Ex.P-4 having no. 8285507008 was produced by PW-7 Sh. Sanjay and that is why he was made witness to support the case of the prosecution but the testimony of PW-33 narrates some other story of consumer of mobile phone no. 8285507008 in the name of Sh. Sandeep S/o Sh. Jagbir Singh R/o 184, Village Mundka PO Nan- gloi, N.D. Even PW-7 Sh. Sanjay himself categorically Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 87/99 deposed that he is not having mobile phone no. 8285507008. In view of above, when the ownership of the mobile phone no. 8285507008 is under suspi- cion, how can it be said that accused Vinod made call on 100 number from the mobile no. 8285507008 al- legedly pertaining to PW-7 Sh. Sanjay when he him- self negated this fact. Even said Sandeep Kumar, registered owner of mobile phone no. 8285507008 has not been examined by the prosecution to clear the cloud. Prosecution has again failed to prove this material fact to connect the accused Vinod with this alleged mobile phone no. 8285507008 which is a big blow for the prosecution. Apart from the above mo- bile phone allegedly produced by PW-7 Sh. Sanjay, there is no investigation to ascertain the ownership or user of the two mobile phones recovered from near the dead body of the deceased at the spot.
106. The next arguments of Ld. Defence counsel is with regard to the page Ex.P-1 allegedly provided by Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 88/99 PW-2 Sh. Gagan Bhardwaj to IO Insp. Satish Kumar al- legedly written by deceased Pinki wherein the factum of alleged cruelty and harassment has been men- tioned by her. It is argued that no such page has ever been given by PW-2 Sh. Gagan Bhardwaj and the same has been falsely planted just to implicate the accused in the present case. It is further argued that even the FSL report Ex.PW34/D does not opine that the same has been written by decease Pinki.
107. Having perusal the entire material available on record, I find force and contentions in the submis- sions of Ld. Counsel for the accused persons. The FSL report does not opine that the hand writing on the page Ex.P-1 is of deceased Pinki. The FSL report Ex.PW34/D opined that ''the remaining characters as occurring in questioned signature could not be similarly account for from the available ad- mitted signatures. As such it has not been pos- sible to express a definite opinion on red en- Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 89/99 closed signature stamped and marked Q1 in comparison with red enclosed signatures simi- larly and marked A1 to A-7.'' So, in view of above facts, it is clear that prosecution has failed to prove the fact that the diary page provided by PW-2 Sh. Gagan Bhardwaj was actually written by deceased Pinki or not, benefit of which is certainly goes to ac- cused Vinod.
108. It is also vehemently argued by Ld. Defence counsel that accused Vinod has not made any disclo- sure statement Ex.PW29/D and the same was recorded by putting pressure upon him. Therefore, it is to be examined as to whether conviction could be sustained on the basis of such statements.
109. Admittedly, disclosure statement Ex.PW29/D was recorded after the arrest of accused when he was in police custody. Therefore, such statement was in- admissible having regard to the provisions of Sections 25 and 26 of the Indian Evidence Act, 1872. Section Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 90/99 25 of the Evidence Act mandates so, in certain and unequivocal terms, as is clear from the language thereof.
It reads as follows:
"25. Confession to police officer not to be proved. -
No confession made to a police officer shall be proved as against a person accused of any offence." Likewise, Section 26 makes any such statement inadmissible if given when in police custody. It reads:
"26. Confession by accused while in custody of police not to be proved against him. - No confession made by any person whilst he is in the custody of a police- officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Explanation. - In this section "Magistrate" does not include the head of a village discharging magisterial functions (in the Presidency of Fort St. George or elsewhere), unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882."
Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 91/99 In the present case it is proved that apart from the aforesaid statements of accused persons, there is no material suggesting involvement of the accused persons in the crime in question. I am thus left with only one piece of material that is the confessional statements of the accused persons as stated above. On the touchstone of law laid down, such a confessional statement of accused persons cannot by itself be taken as a substantive piece of evidence and can at best be used or utilized in order to lend assurance to the Court. In the absence of any substantive evidence it would be inappropriate to base the conviction of the accused persons purely on the disclosure statement in other case.
Reliance placed on Judgment Ram Singh Vs. State of Maharashtra, 1999, Cr. LJ 3763, (Bom) wherein it was observed as under:-
''In light of the provisions of Maharashtra Village Police Act, 1967, it has to be seen whether any confession made before the Police is hit by Section 25 of the Evidence Act. The power s of the police which are referred to above clearly indicate that when any offence takes place, he can act as a police officer. He is not a mere spectator or mere informant. So, for all practical purposes, he is a police officer and, therefore any confession made before the police would become inadmissible in evidence as being made Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 92/99 before a Police Officer.'' Attention is again drawn to the relevant paragraph of Aghnoo Nagesia Vs. State of Bihar, AIR 1966 SC 119 wherein it was observed as under:-
''The term of section 25 are impera- tive. A confession made to a police officer under any circumstance is not admissible in evidence against the accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun.
The expression ''accused of any offence''covers a person accused of any offence at the trial whether or not he was accused of the offence when he made the confession. Section 26 prohibits proof against any person of a confession made by him in the custody of a police officer, unless it is made in the immediate pres- ence of a Magistrate. The partial ban im- posed by section 26 relates to a confession made to a person other than a police offi- cer. Section 26 does not qualify the abso- lute ban imposed by section 25 on a con- fession made to a police officer.''
110. As far as application of 27 of Indian Evidence Act is concerned, it is for the person who is custody of the police at the time of giving information about the fact discovered which is not the case of the prosecu-Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 93/99
tion because at the time of giving the alleged infor- mation by accused Vinod, he was not in custody of the police and it was given by him on phone and as per the case of the prosecution when he surrendered in the Police Station, the police team had already reached at the spot on the information recorded in DD no. 7A. So, on this account, the case of the pros- ecution is not covered under section 27 of the Indian Evidence Act. The accused was arrested later on and at the time of his disclosure statement, he was in cus- tody and thereafter nothing has been discovered and recovered connecting him with the offence of murder.
111. As per the case of the prosecution one Sh Suraj was the witness who had lastly seen the accused in the house but said Sh. Suraj has not been examined being not traceable. He was the very material wit- ness for the prosecution to establish the presence of the accused at the spot but he could not be produced Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 94/99 during trial and as such the prosecution has not been complete its chain of circumstances.
112. In view of above facts and circumstances, I am of the view that in the criminal trial, the prosecution is duty bound to prove its case against the accused beyond reasonable doubt. Before recording the guilt of the accused, the court is required to satisfy itself that the possibility of the innocence of the accused is ruled out. The evidence produced on the record must convince the mind of the court beyond all reasonable doubt. The golden thread running into the web of criminal justice system has laid down the rule of pru- dence that the court must insist higher degree of proof in criminal cases as compared to civil cases. The court cannot record the conviction on suspicion or conjecture. There is presumption of innocence in favour of the accused and therefore, the burden of proving the charge is on the prosecution. Reference can be made to the State of Punjab Vs. Jagir Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 95/99 Singh. (1974) 3 SCC, 277. In the above noted case the apex court inter alia held as under:
" A criminal trial is not like a fairy tale wherein one is free to flight to one's imagi- nation and fantasy. It concerns itself with the question as to whether the accused ar- raigned at the trial is guilty for the crime with which he is charged. Crime is an event in real life and is the product of in- terplay of different human emotions. In ar- riving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evi- dence by the yardstick of probabilities, its intrinsic worth and the animus of wit- nesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.
113. I am of the view that in the aforesaid facts and circumstances and the evidence brought on record, the prosecution has not been able to complete the chain of circumstances and failed to prove on record beyond any reasonable doubt that it was accused Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 96/99 Vinod who committed murder of his wife deceased Pinki. There is also nothing incriminating against any of the other accused persons on record on the basis of which it can be said that they were involved in murder of deceased Pinki. Deposition of all the public witness are also responsible threshing the case of the prosecution. A criminal case is build upon the edifice of evidence, whether it is direct evidence or circum- stantial evidence. For that, witnesses are required. The role of a witness is paramount in the cardinal jus- tice system. By deposing in a case, witnesses assist the court in discovering the truth but the witnesses turning hostile is a common thing happening in crimi- nal judicial system. A witness is referred to as a hos- tile witness if he refuses to tell the truth in a court of law after having previously sworn that he would. The prosecution whenever calls the witness, believes that the witness will provide similar evidence to the court that was provided in his pre-trial statement. If the Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 97/99 witness then decides to lie or refuses to answer ques- tion, the whole case of prosecution can fall only on the basis of false statement of witnesses.
114. In view of above facts and circumstances, I am of the view that prosecution has miserably failed to bring home the offence under section 302/34 IPC against all the accused persons. Accordingly, giving benefit of doubt, all the accused persons namely Vinod Kumar, Jai Bhagwan, Smt Murti Devi, Deepak and Manisha are acquitted for the offence under sec- tion 302/34 IPC. Resultingly, all the accused persons are hereby acquitted for the offences charged with by the prosecution.
115. Bail bonds in terms of Section 437A Cr.P.C. have already been furnished on behalf of all the accused persons in compliance of the direction of the Court. The same shall remain in force for a period of six months from today. Case property, if any, is confis- Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 98/99 cated to the State after expiry of the prescribed pe- riod of limitation to file the appeal.
116. File be consigned to record room. Digitally signed
AJAY by AJAY GOEL Date: GOEL 2019.04.08 14:12:22 +0530 Pronounced in the open court. (Ajay Goel) Dated: 02.04.2019 Additional Sessions Judge Special Judge (NDPS), Dwarka Courts, New Delhi Sessions Case No. 440525/16 State Vs. Vinod Kumar & Ors. Page No. 99/99