Delhi District Court
State vs . Azim Khan on 31 October, 2014
IN THE COURT OF MS. SAVITA RAO, ADDITIONAL SESSIONS
JUDGE02, CENTRAL, DELHI
FIR No. : 112/2011
PS: Burari
U/s: 302/34 IPC
State Vs. Azim Khan
SC No. : 65/2011
Case ID No. : 02401R0329752011
In the matter of:
State
Vs.
Azim Khan S/o Jamil Ahmed
R/o House No. 673, Gali no. 4,
Sangam Vihar, Delhi
Permanent Address:
Village Devariya, Abdulla Ganj,
P.S. Mirganj, Tehsil Mirganj, Distt. Bareilly, U.P.
Date of Institution : 24.08.2011
Arguments Heard : 30.07.2014, 12.08.2014,
1.10.2014 and 16.10.2014
Date of Judgment : 31.10.2014
JUDGEMENT
Case Of Prosecution:
1. On 8.4.2011, on receipt of DD no. 33 PP Jharoda, P.S. Burari, regarding admission of deceased Asma in Jaipur Golden Hospital and she S.C. No. : 65/2011 1/34 having been declared brought dead by the doctors, Inspector Hari Kishan alongwith his staff reached at the spot at House no. 673, Gali no4, Sangam Vihar and conducted investigation during which it transpired that some scuffle had taken place between accused and deceased immediately before the incident. No eye witness to the incident was found and on the basis of MLC of deceased, instant FIR u/s 302 IPC was registered. During investigation of the case, IO prepared site plan, got the scene of crime inspected through crime team, recorded statements of witnesses, got the postmortem examination on dead body of deceased conducted, arrested accused Aazim Khan and made efforts to search coaccused Nazim @ Nasim Mulla but he could not be traced . Exhibits of the case were sent to FSL for expert opinion and after completion of investigation, instant charge sheet u/s 302/34 IPC was filed in the court.
2. Since the offence u/s 302 of IPC is exclusively triable by the court of sessions, therefore, after supply of the documents, Ld. MM committed the case to court of sessions.
Charge Against The Accused:
3. Prima facie case u/s 302/34 IPC was made out against the accused. Charge was framed against him accordingly, to which he pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined 18 witnesses in all.
S.C. No. : 65/2011 2/34
5. PW1 is Taihajeeb Khan, PW2 is Najim Khan and PW3 is Gore Khan, brothers of deceased who identified the dead body of deceased vide statement Ex. PW1/A, Ex. PW2/DA and Ex. PW3/A respectively.
6. PW4 is Sehnawaz, landlord of the house where Nazim and his brother Shabu were residing on rent and PW5 is Smt. Shehanshai, wife of PW4, who both stated that accused alongwith his deceased wife was also residing in the same locality in separate house and after the murder of deceased, both Shabu and Nazim vacated the tenanted premises.
7. PW6 is Aamir Khan, brother of deceased and PW11 is Smt. Aamir Jahan, mother of deceased, who both deposed with respect to the cruelties committed upon deceased by accused as well as their suspicion with respect to the deceased having been killed by accused.
8. PW7 is Faizul Hadi who had seen the accused taking deceased to hospital on the date of incident.
9. PW8 is Dr. Asifa who initially had examined the deceased and declared her dead.
10. PW9 is Ct. Rakesh who took the rukka to police station for registration of FIR.
11. PW10 is SI Mahesh Kumar who prepared scaled site plan and proved the same As. Ex. PW10/A.
12. PW12 is Sh. Pradeep Dua, CMO from Jaipur Golden Hospital, who examined the deceased and proved the MLC as Ex. PW12/A. S.C. No. : 65/2011 3/34
13. PW13 is Ct. Anuj and PW17 is SI Kuldeep Singh who were with the IO during investigation of the case and proved the memos prepared during investigation.
14. PW14 is Ct. Chander Mani who delivered the copy of FIR to senior officers as well as at the residence of Ld. MM.
15. PW15 is SI Devender Purang , Incharge Crime Team who inspected the scene of crime and proved the report as Ex. PW15/A.
16. PW16 is Inspector Gyan Chand who recorded statements of some of the witnesses, conducted further investigation of the case and after completion of investigation, filed the instant charge sheet in the court.
17. PW18 is Dr. Asitesh Bajwa from Subzi Mandi Mortuary who conducted postmortem on the dead body of deceased and proved the report as Ex. PW18/A.
18. PW19 is Inspector Hari Kishan who being the first IO conducted investigation of the case and proved the memos prepared during investigation.
19. Statement of accused u/s 313 Cr.P.C. was recorded wherein he denied the case of prosecution and stated that he is innocent and has been falsely implicated in this case. He further chose not to lead evidence in his defence.
20. I have heard Ld. APP for the state as well as Ld. counsel for defence Sh. H.P. Aditya and have perused the record.
S.C. No. : 65/2011 4/34
21. The deceased after eightnine years of her marriage died at her matrimonial home on 8.4.2011 and as alleged by the prosecution she was murdered by her own husband due to strained relationship. Her husband i.e. accused did not like her and wanted to marry someone else. Per contra, the defence taken by accused was that he was at his workplace on the relevant date and was telephonically informed regarding the incident, after which he reached back to his home. According to him, six months prior to this incident, a minor incident of robbery had occurred at his home and it appeared to him that on the day of occurrence also, it was a case of robbery at his home and due to resistance of his wife, she must have been murdered by the robbers. As stated, the said incident was also confirmed by the father of deceased during recording of his statement u/s 161 Cr.P.C. but his statement had been withheld by the IO deliberately .
22. Prosecution witnesses particularly the brothers and mother of deceased elaborated regarding the prosecution case. PW3 brother of deceased stated about the strained relationship between his deceased sister and her husband i.e. accused and also stated about the receipt of telephonic information on 8.4.2011 regarding ill health of deceased when he advised that the deceased be taken to Jaipur Golden Hospital for medical examination. According to him, twice i.e. four and two days prior to the death of his sister, he had visited her matrimonial house but she did not inform him anything and seemed to be normal. The motive as was attributed to the accused by prosecution besides disliking of S.C. No. : 65/2011 5/34 deceased was also stated to be love affair of accused with younger of deceased but it was specifically denied by this witness who rather stated that none of his family members had stated any such thing to the police and police itself had concocted the story to solve the case and to create a motive.
23. PW6 the other brother of deceased also stated about the strained relationship between the parties . He deposed that accused used to harass his sister and also used to say that he would marry with someone else and would leave her. Accused used to say his sister that she was not of his liking and whenever he visited the house of his sister, accused used to abuse his sister who did not hear his sister in any matter and always had his own way in every matter of the family. As deposed, on the relevant date, accused made call to him on his mobile and told him that deceased was not feeling well and she was being taken to Jaipur Golden Hospital, subsequent to which he also left his shop for going to hospital. On the way to hospital, he received another call from his brother PW3 who informed that his sister had expired and the thought which came to his mind was that his sister was killed by accused, though he admitted that no complaint was ever lodged by any of them regarding the misbehaviour by accused with deceased on previous occasions and also that they did not report the matter to police or called at 100 number after receipt of information about the incident but clarified that when they reached at hospital and were informed that it was a case of murder, then they S.C. No. : 65/2011 6/34 reported the matter to police.
24. It may be noted that there is no direct evidence with respect to the commission of alleged murder by accused and the case is based upon the circumstantial evidence . The mother of deceased who was projected as witness to last seen evidence as well as with respect to previous conduct of accused and strained relationship between the parties was examined as PW11 before the court. Even the accused as stated by her was related to them as he was son of cousin brother of PW11 but he used to beat, torture and harass her daughter after marriage and so many times, her daughter stayed with her for long durations after she was beaten and harassed by the accused. She specifically stated that accused did not like her daughter who was thrown out of her matrimonial home after giving birth to a baby boy and was beaten by the accused and on her persuasion, accused took back her daughter to matrimonial home. The said child also expired after 8 months. The deceased again conceived but produced a still born baby . According to her, so many times, accused was made to understand and then he used to take her daughter to her matrimonial home but repeated the same conduct again and again. The witness stated that she had not informed his sons with regard to such beatings and torture given to her daughter by the accused.
25. It was the contention of Ld. counsel for defence that PW3 and PW6 except for stating about the strained relationship between the parties have not stated that she was being treated with cruelty at her matrimonial S.C. No. : 65/2011 7/34 home and the statement of PW11 in these circumstances cannot be believed. It was also contended that in fact PW3 has stated that he had visited house of accused even two days and four days prior to death of his deceased sister but she did not tell him anything. Besides the fact that PW6 has specifically deposed about the abusive behaviour of accused towards deceased and corroborated by PW3 on the point of strained relationship between the parties, PW11 herself seems to have answered the above contention of Ld. counsel for defence by categorically stating that she did not tell her sons with regard to beatings and torture given to her daughter. It was she who used to make the accused understand to take her daughter back to the matrimonial home and on her advise, her daughter used to go back to her matrimonial home despite the fact that so many times, information was given to her by her daughter regarding the misconduct of accused, like on one occasion her daughter was suffering from headache and accused gave her medicine which resulted into swelling on her face. She took her daughter to doctor where she was informed that the deceased was administered some intoxicated tablet which resulted into swelling on her face. Even four days prior to her death, accused alongwith deceased came to her house and when they left her house for their house, on the way , accused served a glass of juice mixed with some substance but her daughter refused to drink the same upon which accused told her that he was not serving her poison. Her daughter threw the glass of juice and came to her house and informed her S.C. No. : 65/2011 8/34 that she had been served with juice laced with poison upon which she made her daughter understand that accused is her husband and he would not serve her poisonous juice and would not cause any harm to her and on her advise, her daughter went back to her matrimonial home. While saying this, the witness started weeping and shivering as if repenting for her advise to her daughter to go back to her matrimonial home.
26. With respect to the relevant date, she stated that her daughter and accused came to her house where they stayed for 8 to 10 minutes. Accused alone left her house and her daughter remained with her. After 10/15 minutes, accused came to her house and took the keys of his house from deceased and left. Her daughter also followed him. At about 11.30 a.m. accused came again to her house and asked her to prepare yellow rice. She prepared the same and asked her younger daughter to call deceased and accused. Her younger daughter made a call on mobile of deceased which was attended by the accused and he told that deceased was sleeping and he would come alone. PW11 asked accused to come alongwith children to eat yellow rice. Accused alongwith children came and ate the yellow rice. After some time, she made a call on the mobile of her daughter to inquire about her which was again attended by the accused who replied that deceased was still sleeping " Bekhabar" . She thought that there might be a quarrel between them and that is why her daughter was not talking to her and thereafter accused disconnected the call. At about 3.30 p.m., accused came to her house and asked her to S.C. No. : 65/2011 9/34 come to his house to see the deceased. Accused told her that colour of body of Asma had turned blue. She alongwith accused rushed to his house and on reaching there, she saw that her daughter was lying on bed and her head was hanging downside. She also saw blood oozing from her nose and mouth. She started weeping and asked the accused as to what happened to her daughter and even slapped the accused. She also made telephonic call to her son PW3 and they were advised to take Asma to hospital . They went to Jaipur Golden Hospital for medical examination where her daughter was declared brought dead.
27. The disclosure statement of accused was recorded where in he disclosed about his strained relationship and disliking for his wife, his extra marital relationship with his sister in law and his intentions to get rid of deceased from his life for which he took help of his friend namely Nazim who was staying as tenant in neighbourhood and as planned on 8.4.2011 , both of them murdered the deceased. Though the confessional statement of accused, if it was voluntary could be recorded under the provisions of section 164 Cr.P.C. to provide sanctity to the disclosure statement which was not done and the disclosure statement of accused having not led to any recovery, the entire statement remains inadmissible in evidence. However, based upon the said disclosure statement , investigating agency proceeded further and conducted inquiry from other witnesses . Neighbours of the accused were examined before the court as PW4 and PW5 who were husband and wife. Nazim according to them S.C. No. : 65/2011 10/34 was residing at their home on rent who was introduced by accused Azim Khan and accused Azim Khan alongwith his wife and children according to them was residing in a separate house in the same locality. On the date of incident, PW5 after the performance of Namaaz at about 4 p.m. , because of noise created, came to know that Ashma had died. At that time, accused Azim and Nazim were at their respective homes. On behalf of defence, any relationship of accused Azim Khan with Nazim was denied and a suggestion was rather put to PW3 that said person Nazim was on visiting terms with his family and had no relationship with the accused which suggestion was of course denied by PW3 but the stand of defence was falsified by the categorical statement of PW5 who is an independent witness that Nazim was introduced to them by accused Azim Khan being his friend and because of this reason, they also did not conduct any further inquiry regarding his antecedents prior to renting out the property to him. She also stated about Nazim carrying wife of accused Azim Khan out of house when she was put in a van stationary in gali as well as also noticed the van taking away accused Azim Khan, mother of Ashma Khatoon and others to hospital and the clothes of Nazim were also stained with blood which he changed. It is surprising that Nazim got sufficient time to change the clothes before taking victim to hospital which otherwise should have been the first priority being the friend of accused instead of going to change the clothes. As further stated by this witness, Nazim did not come back and all the household articles lying in S.C. No. : 65/2011 11/34 the tenanted premises after the murder of Ashma were taken away by brother of Nazim and she did not know the present address of Nazim or where he had gone thereafter. She also stated about presence of Nazim in his tenanted accommodation since morning till she received the information about death of Ashma through public persons and of his carrying the body of deceased to be put in the van standing in gali and also about presence of accused Azim Khan at his home on the date of occurrence. PW4 was not at his home and when he came back, he was informed by his wife regarding murder of deceased as well as about Shabu and Nazim leaving the tenanted premises after the incident without paying the rent.
28. Prior to taking deceased to Jaipur Golden Hospital, PW8 was requested by accused Azim Khan for examination of his wife at his residence as she was not well, as was deposed by PW8 before the court, however when she reached at his residence, she found wife of accused Ashma dead . PW8 categorically denied the suggestion that deceased had already been brought to her clinic by her family members or that subsequently at about 4.30 p.m. accused came to her clinic. PW12 was the doctor who examined the deceased at Jaipur Golden Hospital at about 5 p.m.. As deposed, deceased was brought in casualty with no response to vocal command. Her heart sound, respiratory efforts were absent and pupils were fixed and bilateral and dilated. Peripheral pulses were not palpable and BP was not recordable. ECG was showing straight line. On S.C. No. : 65/2011 12/34 local examination, strangulation marks on her neck were found present and the body was handed over to police. PW18 conducted the postmortem examination on dead body of deceased with alleged history of death due to strangulation who was declared brought dead at Jaipur Golden Hospital on 8.4.2011. The postmortem examination was conducted on 09.04.2011 which was found having following external injuries :
1. Reddish brown imprint abrasion was encirculating the neck.
It was horizontally placed at the level just below thyroid cartilage, sparing areas over left side of neck just lateral to midline of neck at front, at areas over nap of neck and right side of neck, 5.3 cm below right ear. Width of ligature mark at front of midline of neck was 0.5 cm, 7 cm below center of chin, 1.1 cm at right side of neck, 5.6 cm below right angle of mandible, 2.1 cm at left side of neck, 5.5 cm below left angle of mandible, 1.5 cm at nap of neck, 7 cm below posterior hair line.
2. Reddish brown presented crescentric abrasion 0.6 cm X 0.4 cm was present at left side of nose, 0.8 cm from tip of nose.
3. Reddish brown crescentric abrasion 0.5 X 0.4 cm was present at left side of face, 3.8 cm lateral to chin at midline.
4. Bruise 2.1 X 1.5 cm was present at bridge of nose on dissection infiltration of blood was present.
5. Bruise 3.7 X 1.7 cm was present at left cheek 2.4 cm below left eye, on dissection infiltration of blood was present. S.C. No. : 65/2011 13/34
6. Linear reddish brown abrasion 3.5 X 0.1 cm horizontally placed at left side of neck, 2.5 cm below left angle of mandible and 2 cm below injury No. 1.
7. Linear reddish brown abrasion 3.3 X 0.1 cm was present at midline of neck, vertically placed just below the ligature mark and 4.5 cm above sternal notch.
8. Linear reddish brown abrasion 4.5 X 0.1 cm was present at 2.5 cm above sternal notch, 2.1 cm below injury No. 1.
29. On dissection of Neck soft tissues of neck was hard, glistening and perchment like below the ligature mark. Lymph nodes above and below the ligature mark were enlarged and congested. Hyoid bone was found fractured. Tracheal mucosa were congested. On dissection of heart, right chamber was full of fluid and clotted blood and left chamber was empty. Stomach contained about 300 cc of partially digested food material. All the injuries were antemortem in origin and cause of death, as opined, was asphyxia as a result of antemortem strangulation which was sufficient to cause death in an ordinary course of nature. The approximate duration of death of deceased was opined at about 12.45 p.m. to 12.45 a.m. on the intervening night of 8.4.2011/9.4.2011 and as opined, if the deceased was observed as dead by Dr. PW8 at about 4 p.m. on 8.4.2011 and was further declared brought dead by PW12 at about 5 p.m. in Jaipur Golden Hospital, the period of occurrence ought to be from 12.45 p.m. to 4 p.m. on 8.4.2011. It was contended by Ld. counsel for S.C. No. : 65/2011 14/34 defence that as alleged by prosecution, the deceased was found lying dead at her matrimonial home after nine years of her marriage who as alleged was murdered by accused Azim Khan with the assistance of his friend Nazim who continues to be absconding and no proceedings u/s 82 Cr.P.C. had ever been initiated against him. The motive which was attributed to accused was that he was in love with younger sister of deceased but neither prosecution has been able to prove motive with the accused to kill the deceased nor last seen evidence in the form of testimony of PW11 has been proved on record, for which reliance was placed upon 2012 (1) JCC 59 Ashok Kumar Vs. State (NCT of Delhi) wherein prosecution case was entirely based upon circumstance of last seen and it was observed that " normally in circumstantial evidence based cases, the prosecution has to prove motive. Absence of motive in such cases becomes material, whereas motive is not important in case of direct or ocular evidence ". It was further argued that even in terms of prosecution case, the alleged murder of deceased was caused between 12.45 p.m. to 4 p.m. on 8.4.2011, whereas accused had left his home at about 8.30 a.m. in the morning who came back to his home only in the evening. Throughout the day, accused was not present at his home and was at his work place as is admitted by PW3 and similarly PW11 stated about non communication with her daughter and about other events which according to her were pertaining to Jumma which was one week prior to date of occurrence. Therefore, as argued, even PW11 was not a witness to S.C. No. : 65/2011 15/34 last seen evidence and no credibility can be assigned to her statement which is full of inconsistencies and improvements.
30. It is correct that none of the family members of deceased have stated about accused having extra marital affair or illicit relationship with younger sister of deceased but all of them unequivocally stated about the strained relationship between accused and deceased and also with respect to the disliking of accused qua deceased. So much so that on many occasions, deceased was turned out of her matrimonial home who had complained about the abusive behaviour of accused as well as about accused trying to feed her poisonous substance on previous occasions, yet she was made to go back to her matrimonial home and the accused in terms of testimony of PW11 was made to understand to take back his wife who was also in their relation as was stated by PW11 that accused was son of her cousin brother. It was the contention of Ld. counsel for defence that the family members of deceased were still at good terms and had the accused murdered the deceased, there was no reason for the family members of deceased to continue their relationship with the accused. It was also submitted that even in the first statement of mother, she had not uttered regarding involvement of accused and brother of deceased had only thought that possibly the accused could have murdered his sister but none of them were sure about this fact and conclusion in these circumstances regarding the commission of murder by accused was only of the investigating officer and not of other prosecution witnesses. As S.C. No. : 65/2011 16/34 argued by Ld. counsel for defence the subsequent allegations against the accused were only to usurp the property of accused as it was the mother of deceased who was still looking after the house of accused. Though it is correct that PW6 has stated about the continuation of talking terms of PW3 with the accused as well as that the mother of deceased had continued to look after the house of accused as accused other than being her son in law was also the son of her cousin brother. It is also correct that in the first statement of mother of complainant recorded u/s 161 Cr.P.C., she had not made direct allegations against the accused with respect to commission of murder of her daughter, however had specifically stated about the abusive behaviour of accused qua her daughter. According to her, she had tried to make accused understand many times but he did not mend his ways and on the date of incident she got to know that face of her daughter had turned blue with the swelling over her face and then her daughter was taken to Jaipur Golden Hospital where she was declared brought dead. Her sons also being unaware did not put the finger towards accused though considering the past conduct and abusive behaviour of accused qua their sister, they were apprehensive that accused might have killed his sister. In the subsequently recorded statement, mother of deceased elaborated and stated the entire schedule of the date of incident. She herself was not the eye witness to the incident but her deposition was clearly suggestive of the conduct of accused who had intentions to kill the deceased for which seemingly he was looking S.C. No. : 65/2011 17/34 for the opportunity, as according to PW11, he had tried to mix poisonous substance in the juice of deceased and had given intoxicated medication to the deceased on previous occasions also which caused swelling on the face of deceased. It is also correct that the family members of deceased did not lodge any complaint with the police, with the society or with other higher authorities with respect to abusive behaviour of accused towards the deceased but it cannot be ignored that in Indian society, parents for upkeep of their false pride, ego and honour and lesser respect for women folk, force their daughters to continue to stay at their matrimonial home despite utmost cruelty and abusive behaviour by their husbands and in laws , whereas in the instant matter, rather the accused was in relation with the family members of deceased and PW11 herself has admitted that despite her daughter having told her about the accused having tried to serve her poisonous juice on the previous occasion , had also given her medicine which resulted into swelling on her face when she was taken to doctor, it was informed that the deceased was administered some intoxicated tablet which resulted into swelling on her face , even then she made her daughter understand that accused was her husband and he would not cause any harm to her and she was sent back to her matrimonial home. The marriages are solemnized under the blessings of elders and almighty with the hope that it shall form a new bond between the families but the bane of present society where the institution of marriage and family is put to wreckage because of matrimonial discord S.C. No. : 65/2011 18/34 arising out of various factors. Divorce is still a stigma and reconciliation is sought by majority of parents. Despite atrocities, females are preached to be tolerant to the excess and adopt to the situation. This is one of those cases reflective of wicked reality and lesser respect to the daughters and women folk and I am unable to restrain myself by posing a question whether family members of deceased were not equally responsible for the death of deceased who was forced to join her matrimonial home again and again despite the apparent wicked intentions of the accused who had no regards for human life, moral, social values and any respect for his wife. The human beings are duty bound to find out what is worth and praise worthy but folly is to holding on to which is harmful and throwing away which is beneficial. The folly of all follies is to enjoy doing what is forbidden to do, to be shameless, uninquisitive and uncaring. Violence is a sin but wicked men do not fear . Despite the conduct of acucsed having been cruelsome, uncaring and full of atrocities towards his wife who on previous occasions had also tried to give poisonous substance to the deceased, yet he was being requested to take back his wife which probably had motivated him further to continue with his wicked intentions. Though PW11 has made some improvements in her deposition before the court, however all these improvements turned out to be only elaborations as well as detailing of the facts whichever were told to her by her daughter. She herself had witnessed the conduct of accused qua her daughter and in these circumstances, none of these assertions made S.C. No. : 65/2011 19/34 subsequently by PW11 can be termed as after thought or inconsistent with the case of prosecution and her earlier deposition. Reliance is placed upon Sidhan Vs. State of Kerala 1986, Cr.L.J. 470 wherein it was observed that " Minor discrepancies regarding minute details of the incident including the sequence of events and overt acts are possible even in the versions of truthful witnesses. In fact, such discrepancies are inevitable. Such minor discrepancies only add to the truthfulness of their evidence. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not permit rejection of the evidence" . Further in 2010, III AD (Delhi) 34 Gore Lal Vs. State, it was observed that " ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. A witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to be confused, or mixed up when interrogated later on. A witness though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub S.C. No. : 65/2011 20/34 conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him. A former statement though seemingly inconsistent with the evidence, need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement,even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness ".
31. Ld. counsel for defence tried to seek much of the reliance from statement of PW11 whereby she stated that sequence of events which she had narrated i.e. regarding the accused telling her for preparation of yellow rice, her daughter not being well and remaining incommunicado, all were pertaining to one week prior to date of occurrence, while submitting that the entire case of prosecution falls flat since PW11 now cannot be termed as witness to the last seen evidence. As it was noted that PW11 had narrated the sequence of events pertaining to the date of death of deceased but there seemed some confusion regarding the above said statement of PW11, hence PW11 was recalled to furnish clarifications on the said aspect. She clarified that she had referred the sequence of events only pertaining to the date of incident i.e. date of death of her daughter. She stated that she did not know how it came to be recorded with reference to jumma, one week prior to the date of occurrence which may be probably because of her not understanding the questions properly as S.C. No. : 65/2011 21/34 well as because she was not feeling well. She reiterated that she had met the accused and her daughter on the date of incident and had already narrated the sequence of events of the entire day of incident in her examination in chief . She also clarified that she had never stated that she had seen her daughter and accused on the date of occurrence after deceased had already expired . She reiterated that accused was at his home with her daughter on the date of incident and had also visited her home as had already been narrated by her as well as accused had not gone to his work on the date of incident due to the day being Jumma and further stuck to her stand that she had lastly seen both of them on the date which was in reference to the date of incident. She also clarified that her first statement was recorded by police in the night after the incident and subsequent statement was recorded after four/five or six days. The contention of Ld. counsel for defence that accused was at his workplace throughout the day of incident and only after receipt of the information regarding incident at about 4.30 p.m. he came back to his home and reached at the clinic of Dr. Asifa at about 4.30 p.m. on the day of occurrence is falsified by the deposition of PW8 Dr. Asifa who stated about the visit of accused at her clinic at about 4 p.m. with request for examination of his wife at his home, substantiated by testimony of PW11 and further PW7 who had noticed Nizam lifting wife of accused Azim Khan on his shoulder to the van for taking her to hospital at about 4.30 p.m. , besides the testimony of PW5 who was residing in the S.C. No. : 65/2011 22/34 neighbourhood of accused Azim Khan after hearing noise outside, came to know about the death of Asma when, as stated, Azim and Nazim were at their respective homes. Suggestions were also given to PW3 and PW6 regarding presence of accused at his workplace on the date of incident and not at his home , however all those suggestions were denied by PW6 that accused was present at his manufacturing unit at Kardam Puri at the time of incident who stated that the accused was at his home, whereas PW3 also denied the suggestion that at about 4 p.m. in the evening, he had informed accused at his workplace at Kardampuri telephonically regarding the occurrence and only then accused came to his home and thereafter they went to Jaipur Golden Hospital. Though PW3 at one place admitted that accused Azim Khan had left his home on the day of occurrence at about 8.30 a.m. for his work place at Kardampuri, Delhi and came back in the evening, but the said statement also seems to be under some confusion and even otherwise cannot be given any credence since PW3 himself was not available at or near the spot nor at the workplace of accused so as to give him the certificate regarding his absence from spot or of his attendance at his work place. Accused himself stated about receipt of information regarding the incident telephonically but none of the PWs stated about information having given by any of them to accused. Rather PW6 stated that he was informed by accused that his sister was not feeling well and she was being taken to Jaipur Golden Hospital, whereas PW3 also denied the suggestion that on 8.4.2011, at S.C. No. : 65/2011 23/34 about 4 p.m, he had informed the accused telephonically at his work place at Kardampuri regarding the occurrence and only then accused came to his home and then went to Jaipur Golden Hospital. Rather the suggestion which was given to PW6 that accused did not have any mobile phone itself demolishes the defence of accused with respect to receipt of telephonic information. Accused failed to furnish any explanation on record from where, from whom and on which telephone, he got the information since it was his defence that he was not having any mobile phone and how did he reach back to spot within minutes from his work place located at distance of 14 kilometer from his house.
32. The testimony of PW11 coupled with the deposition of PW5 regarding the presence of accused Azim Khan at his home, testimony of PW8 regarding arrival of accused at her clinic at about 4 p.m. with request as noted above and particularly considering the day being Zumma which generally remains holiday for particular community to which accused belongs as also stated by PW11 that accused did not go to his work being Jumma and also taking into consideration the conduct of accused and other evidence on record which would be discussed hereinafter, I am not left with any doubt with respect to presence of accused at his home at the relevant time, who himself did not prefer to examine any other defence witness from his work place to prove his plea of alibi that he was at his work place at the relevant time and was not present at his home.
S.C. No. : 65/2011 24/34
33. Ld. counsel for defence submitted that the case was merely based upon circumstantial evidence and all the links were not completing the chain of circumstances. Reliance was placed upon C.Chenya Reddy & Ors. Vs. State of A.P. 1996 (10) SCC 193, wherein it was observed that "In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence".
34. Reliance was further placed upon Bhagat Ram Vs. State of Punjab AIR 1954 SC 621, 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 negative the innocence of the accused and bring the offence home beyond any reasonable doubt".
35. Reliance was also placed upon Hanumant Govind Nargundkar & Ars. V/S. State of U.P. AIR, 1952 SC 343 wherein it was observed 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 instance 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 S.C. No. : 65/2011 25/34 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".
36. In the instant matter, the witness to last seen evidence i.e. PW11 who had lastly seen deceased and accused together has categorically, specifically and seemingly correctly has described regarding all the events which occurred on the date of incident. She specifically stated about arrival of accused and his children at her home unaccompanied by deceased. Matrimonial home of deceased was stated to be at a distance of 34 lanes from house of PW11. She made a call on mobile of deceased Asma which was attended by accused and she was informed that her daughter was sleeping, who on subsequent call, replied that deceased was still sleeping " Bekhabar". It was at about 3.30 p.m. when accused came to her house and woke her up and asked to come to her house to see Asma since colour of body of Asma had turned blue. She alongwith accused rushed to the spot and saw her daughter lying on bed with her head hanging downside as well as blood was also oozing from her nose and mouth, when she started weeping and also slept the accused. Accused himself took the plea that this could be a case of robbery at his home and due to resistance by his wife, she might have been murdered by S.C. No. : 65/2011 26/34 the robbers which was informed to the police. Even on that day, according to him, some jewelery, valuables and Rs. 25,000/ cash were found missing by him. Matrimonial home of deceased, very small in size, as per record was located at highly congested area, where, alleged robbery, as stated by accused, was committed that too on the day of Zumma but surprisingly accused did not inform to anyone residing nearby or to police nor shared the information with anyone including the doctor to whom he had requested to examine his wife. Accused also did not give the details of those valuables which were found missing from the spot. It may be noted that jewelery articles worn by the deceased were found intact when she was taken to hospital for medical examination as was confirmed by PW11, doctor as well as IO. PW11 further confirmed with respect to receipt of the jewelery articles worn by the deceased, which were handed over to her by the concerned doctor. Further, when the IO reached at spot, golden colour earring of deceased and one ring/challa were also found lying on the bed and in these circumstances, I agree with the submission of Ld. APP that had the case been of robbery, there was no reason for jewelery articles worn by deceased remaining intact or other jewelery articles lying scattered at the spot, besides the fact that it was specifically stated by PW17 in his cross examination that there were no signs of commission of robbery at the spot. Though it is correct that in terms of deposition of prosecution witnesses themselves, S.C. No. : 65/2011 27/34 household articles of said room were in scattered condition but the said articles seem to had been scattered by the accused so as to give colour of robbery to his misdeed. Apparently, the conduct of accused after the murder of deceased, articles found lying scattered in the room of deceased as well as jewelery articles having remained intact on body of deceased, rules out the possibility of any robbery at the house of accused.
37. It was further the contention of Ld. counsel for defence that the statement of father of deceased was not recorded by the IO since he had exonerated the accused from alleged crime. IO admitted with respect to non recording of the statement of father of deceased but volunteered to state that he was mentally weak according to family members and therefore he did not record the statement of father of deceased which was not for the reason that father of deceased was not supporting the case of prosecution. Be that as it may, if it was felt by the accused that father of deceased had exonerated him and was not supporting the case of prosecution, nothing debarred him from calling father of deceased as defence witness to substantiate his defence. It is well settled law that though the burden of proving the guilt of an accused is on the prosecution but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused, failure of which itself becomes a strong circumstance pointing out towards his guilt. Reliance is placed upon 1956 SCR 199 Shambhu Nath Mehra Vs. State S.C. No. : 65/2011 28/34 of Ajmer wherein it was held that " in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are " especially"
within the knowledge of accused and which he could prove without difficulty or inconvenience. The work " especially" stresses that it means the facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than him whether he did or did not ".
38. It was further contended by Ld. counsel for defence that the complaint in the instant matter was got registered by PW19 who himself continued to be IO in the matter and also conducted further investigation which is against the legal procedure as the complainant himself cannot be the investigating officer. For the abovesaid, reliance was placed upon AIR1995 Supreme Court 2339 Megha Singh Vs. State of Haryana where a Head Constable had arrested the accused and recovery of pistol and cartridges were effected from him. Formal FIR was also registered on his complaint and it was held that being the complainant, he could not have proceeded with the investigation of the case. However, in the instant matter, by the time, rukka was sent for registration of FIR, statement of S.C. No. : 65/2011 29/34 witnesses had not been recorded, though the circumstances existing at the place of incident and medical examination on body of deceased suggested death by strangulation, therefore the complaint was lodged by PW19. Thereafter the investigation was conducted based upon the statements of witnesses, disclosure statements of accused and other evidence on record and not merely on the basis of complaint by PW19, which was only in the form of furnishing the information with respect to death of deceased which seemed to be murder. Therefore, substantially IO was not the complainant in instant matter and even otherwise circumstances on record do not point out any reason to suspect unfair or partial investigation because of the abovesaid reason.
39. Ld. counsel for defence raised certain other points also regarding no DNA matching with nail clippings or with the blood group of deceased, non verification with respect to location of mobile phone of accused as well as with respect to the fact that viscera report did not suggest consumption of any poisonous substance by deceased, which all according to him create dent in case of prosecution. For the abovesaid, reliance was placed upon 2012 (4) JCC 2793 Daya Ram Vs. State "
which was a case of homicide cum sexual assault and presence of semen on the underwear was indicated but its group could not be ascertained, hence, as observed, mere recovery was of no significance ". Though it is correct that no DNA matching was conducted with nail clippings or with the blood group and despite the fact that semen was found on the 'salwar' S.C. No. : 65/2011 30/34 worn by the deceased , same was also not sent for matching as well as viscera report also did not suggest consumption of any poisonous substance and location of mobile phone of accused was also not ascertained by IO. Though the plea regarding non verification of location of mobile phone of accused was contrary to the own assertion of the defence that the accused was not having any mobile phone but the case could have been at stronger foothold had the abovesaid also been done or taken care of by the IO, yet the fact remains that the cause of death was also opined to be strangulation with presence of antemortem injuries over the body of deceased. The presence of accused at his home at the relevant time having already been established on record , the conduct of accused, strained relationship between the parties and narration of events of the date of incident as stated by PW11, unerringly point out towards the guilt of accused and merely because in the disclosure statement, it was noted down that the deceased was forced to consume poisonous substance which was not found in the viscera report, does not absolve the accused from his guilt for the reason that disclosure statement has remained in admissible in evidence and secondly the said fact otherwise could be only in the knowledge of accused as there is no eye witness to the alleged crime by accused. Further PW8 had already declared the deceased dead yet she was taken to Jaipur Golden Hospital. I am unable to agree with the contention of Ld. counsel for defence that as it was suggested by PW3 himself to take his sister to Jaipur Golden Hospital, therefore accused S.C. No. : 65/2011 31/34 only complied the same. In terms of deposition of PW3 himself he was only informed that his sister was not feeling well and not that she had already died. Apparently alleged compliance by accused to take the dead body of deceased to Jaipur Golden Hospital was to avoid suspicion upon him.
40. Ld. counsel for defence further placed reliance upon AIR 2008 Supreme Court 69 Malleshappa Vs. State of Karnataka where the case was based upon circumstantial evidence. Accused and deceased were last seen together and there was no proximity of time and place between last seen evidence and recovery of dead body, veracity of other evidence was also found to be doubtful and singular circumstance of last seen was held not sufficient to base conviction and non explanation by accused as to what happened to deceased was considered not a factor sufficient to lead to proof of guilt of accused.
41. Ld. counsel for defence also placed reliance upon 2013 (1) JCC 347 Laxman @ Janga Vs. State wherein death was due to strangulation but there was no motive and no enmity between the appeallant/accused and deceased and recoveries were made after 23 days of the discovery of body which was held to be doubtful and since the witnesses were unable to identify the person with whom deceased had left, therefore last seen theory as stated had broken down the recoveries by themselves.
42. The authorities (supra) are apparently distinguishable from the S.C. No. : 65/2011 32/34 facts of instant matter. The mother of deceased though is a witness to last seen together but in the instant matter, last seen evidence is coupled with the other circumstances against accused i.e. presence of motive, regarding his disliking qua the deceased, his past misconduct towards the deceased in trying to kill her as well as his conduct after the murder of deceased.
43. In Trimukh Maroti Kirkan Vs. State of Maharashtra(2006) 10 SCC 681 it was observed that " these crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family , even if he is a witness of the crime, would come forward to depose against another family member . The neighgbours, whose evidence may be of some assistance, are generally reluctant to depose in court as they want to keep aloof and do not want to antagonize a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the harassment caused to bride. But, it does not mean that a crime committed in society or inside the house should go unpunished ".
44. In the authority (supra), it was further observed that " when the wife is injured in the dwelling home where the husband ordinarily resides, and the husband offers no explanation for the injuries to his wife, then the circumstances would indicate that the husband is responsible for the injuries . Where an accused is alleged to have committed the murder of S.C. No. : 65/2011 33/34 his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence had taken place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime ".
45. In the instant matter also, accused is alleged to have committed the murder of his own wife i.e. deceased who in terms of deposition of PW11 was seen lastly in company of accused who informed about his wife sleeping " Bekhabar ", coupled with presence of motive, looking of opportunity to get rid of his wife, story regarding attempt of robbery put by accused found improbable and falsified on record, all the circumstances unerringly pointing out towards accused being perpetrator of crime, I have no hesitation to conclude with respect to guilt of accused in commission of murder of his wife, who is accordingly convicted for the offence u/s 302 IPC.
(SAVITA RAO) Additional Sessions Judge02 (Central) Tis Hazari Courts, Delhi Announced in the open court today i.e. on 31.10.2014 S.C. No. : 65/2011 34/34