Delhi District Court
State vs Sohail 11 Jc on 21 September, 2024
IN THE COURT OF ALOK SHUKLA, ADDITIONAL SESSION
JUDGE-02, SPECIAL JUDGE (NDPS), EAST DISTRICT,
KARKARDOOMA COURT, DELHI
CNR No. DLET01-001081-2014
SC No. 625/2016
State vs. Sohail & Anr.
FIR No. 10/2014
PS Gazipur
U/s. 302/120B/34 IPC
In the matter of: -
State
Versus
1. Sohail,
S/o. Moharram Ali,
R/o. Village Hussain Nagar,
PS Khargopur District Gonda, U.P.
2. Salma,
W/o. Late Asir Ahmad,
R/o. B-198, Rajbir Colony, Delhi.
Date of Institution : 08.05.2014
Date of reserve for judgment : 16.07.2024
Date of decision : 21.09.2024
JUDGMENT
1. The present case arises out of FIR No. 10/2014 U/s 302/120B/34 IPC. The accused persons namely Sohail and Salma are charged with the offences under section 302/34 read with Section 120B IPC.
2. Brief Facts leading to the registration of FIR No. 10/24 are that on 06/01/2014, SI Kuldeep Singh on receipt of DD No. 22B reached at B-198, Rajbir Colony, Delhi, where a person was lying dead on a cot inside a room, identified as Asir D. Ahmad S/o Md. Yasin R/o B-198 Rajveer Colony Delhi-96 aged 35 Yrs. SI Kuldeep Singh took him to LBS Hospital Delhi with the help of Hamrah staff, where Asif D Ahmad was declared brough dead with the history of Page 1 of 63 hanging and MLC No.247/14 was prepared. SI Kuldeep Singh got the dead body preserved in LBS Hospital Mortuary under the supervision of Ct. Anil. On 08/01/2014, SI Kuldeep Singh got the post-mortem of the deceased Asir Ahmad conducted. After post-mortem, SI Kuldeep Singh discussed with the Doctor, who verbally informed him that this is not a Suicidal/Hanging Case. Nasreen Bano, sister of the deceased Asir Ahmad, who was present in the mortuary gave her statement to SI Kuldeep Singh stating that she lives as a tenant with her family at the address mentioned in her statement and she is originally a resident of village Jaisepur, PS Haidergarh District Barabanki (U.P.). She is a housewife and Asir Ahmad was her younger brother, who was married to a girl named Salama about 12 years ago. After a few days of marriage, Salma developed illicit relations with Nasreen Bano's sister's son Sohail S/o Moharram Ali R/o. Village Hussain Nagar PS Khargopur, District Gonda (U.P.). She further stated that her family tried hard to convince both of them, but they both did not agree and kept meeting each other. Around 7-8 years ago, her brother came to Delhi with his wife Salma and children and started living at the above- mentioned address. She further stated that there used to be fights quite often between her deceased brother and his wife Salma regarding Sohail, but Salma did not stop talking and meeting Sohail. She further stated that even 5-6 days ago, Asir caught Salma talking to Sohail on the phone, over which there was a fight between them and Salma had said in anger that it would be better if she goes to Sohail. Even on the evening of 05/01/2014, Nasrin Bano saw Sohail going to Asir's house. On the morning of 06/01/2014, Nasrin Bano came to know that Asir had died. She reached Page 2 of 63 Asir's house, where Asir was lying on a cot in the room. His wife and children were there. Salma told her that Asir has hanged himself, But Nasrin Bano did not believe it. Naseer Bano further stated that today she got to know that Asir has not hanged himself but has been murdered. She was absolutely sure that her brother Asir Ahmad was murdered by his wife Salma and her lover Sohail to remove the obstacles in their illicit relationship and legal action should be taken against both of them. Her statement was recorded. Based on the post-mortem report, statement and circumstances, it was found that an offence has been committed U/S 302/34 IPC. Thereafter the present case was registered and investigation was handed over to Inspector. During investigation, site plan was prepared at the instance of complainant. Statement of Pran Singh, landlord of Asir Ahmad was recorded. Statements of witnesses were recorded. On 09.01.014, accused Salma w/o Asir Ahmad was arrested from her house B-198 Rajbir Colony Delhi-96. Her family members were informed about her arrest. Her statement was recorded. She said that she was married to Asir Ahmad about 10-12 years ago. After sometime of marriage, she met Sohail, who was Asir Ahmad's nephew. Both of them started loving each other. Their illicit relationship was established. Families of both of them were against this. Her husband Asir Ahmad also used to beat her over this matter. She came to Delhi and started living with her husband. Sohail started living in Mumbai. Sohail would often come and meet Salma from Mumbai. About 7-8 days ago also her husband had beaten her over Sohail. After this, Salma and Sohail planned to kill Asir. She further stated that on 05.01.14, Sohail came to Delhi from Mumbai in the Page 3 of 63 evening and stayed somewhere near her house. As per the alleged disclosure statement of accused Salma, before sleeping, she spiked the Asir's coffee with lot of sleeping pills. Asir fell into deep sleep. At around 3.00 AM in the night, she called Sohail in the room. She hold Asir's legs and Sohail pressed Asir's throat with one hand and his mouth with the other hand and Asir died in some time.
3. On 10.01.14, Salma was produced before the Court and sent to J/C. Information was received about the accused Sohail that he was somewhere in Mumbai. On 09.01.14, ASI Bahgwat Dayal left for Mumbai and on 10.01.14, accused Sohail was arrested by ASI Bhagwat Dayal in the area of Kurla police station, Mumbai. His family members were informed about his arrest. His confessional statement was recorded. He told that about 10-12 years ago his maternal uncle Asir Ahmad was married to Salma. After some time of marriage, he met Salma. Both of them started loving each other. They established illicit relationship with each other. Families of both of them were against this. Her maternal uncle Asir Ahmad came to Delhi with Salma and started living there. He started living in Mumbai. He would often come and meet Salma in Delhi. He and Salma planned to kill Asir. On 05.01.14, he came to Delhi from Mumbai in the evening and stayed near Asir's house. Before sleeping, Salma spiked Asir's coffee with a lot of sleeping pills. Asir fell into deep sleep. At around 3.00 AM in the night, Salma called Sohail to the room. Salma caught hold of Asir's legs and Sohail strangled Asir with one hand and closed his mouth with the other hand. Aseer died within some time. After this, transit remand of accused Sohail was obtained by presenting Sohail in Mumbai court.
Page 4 of 63He was brought to Delhi, presented in Karkardooma Court and sent to J/C.
4. On 03.02.14, Viscera of Asir Ahmad was sent to FSL Rohini Delhi for examination. On 24.03.14 Insp. Mahesh Kumar prepared site plant. On 29.03.14, Saheer Ahmad brother of Asir Ahmad produced the eldest son of deceased Asir and accused Salma before the IO and told him that this boy is an eyewitness of the incident and wanted to tell about the incident. IO interrogated Mohd. Kaif and after being satisfied his statement was recorded U/S 161 Cr.P.C. He told that on the night of 05.01.14, he was sleeping in the room with his younger siblings and parents. At night he woke up on hearing his father screaming. He saw that his aunt's son Sohail had climbed on his father Asir Ahmad and was hitting him and his mother Salma was holding his father by his legs. Mother scolded him and he slept quietly. After the incident, he went to his village. IO sent SI Kuldeep Singh to Karkardooma Court to get the statement of Mohd. Kaif recorded U/S 164 Cr.P.C. Statement of Mohd. Kaif U/S 164 Cr.P.C. was recorded by Ld. MM, Karkardooma Court Delhi. Mohd. Kaif told that on 05.01.14, he woke up when he heard his father screaming in the room at night. He stated that he saw that his aunt's son Sohail had climbed on his father and was assaulting him. He further stated that his mother was holding his father. His mother scolded him and he lay down quietly. Chargesheet under Section 302/34 IPC was prepared and presented to the court.
CHARGES AGAINST THE ACCUSED PERSONS
5. By order dated 21.08.2014, charges for the offences under Sections 120B IPC & 302/34 IPC were framed against Page 5 of 63 accused persons to which they pleaded not guilty and claimed trial.
PROSECUTION WITNESSES
6. Twenty-Five prosecution witnesses were examined during the course of trial. On 22.05.2019, Ld. counsel for accused admitted proceedings under Section 164 Cr.P.C. Ex.A1 under section 294 of the Cr.P.C.
7. PW1 Ms. Nasrin Bano W/o Sh. Mashuk Ali deposed that her younger brother Asir Ahmad got married with accused Salma about 12 years back (accused appeared in court in Burqa, she was asked to remove the same for the purpose of identification, she removed the burqa and correctly identified by witness). She further deposed that Accused Sohail present in court (correctly identified by name) is son of her real sister Shah Khatoon. She further deposed that after few days of the marriage, accused Salma developed illicit relation with accused Sohail and at that time, they were in village Chandramoh Distt. Barabanki, UP. She further deposed that she and other family members tried to make both accused persons understand, but both the accused persons kept on meeting and talking with each other on phone. She further deposed that about 8 years ago, her brother Asir along with accused Salma and their children shifted to Delhi. She further deposed that her brother and Salma used to quarrel often because Salma was having relations with accused Sohail, but accused Salma did not stop meeting and talking on phone with accused Sohail. She further deposed that about a week before his death, her brother caught Salma talking on phone with accused Sohail and both quarrelled because of that and accused Salma had said angrily that it shall be better for her if she goes to accused Sohail.
Page 6 of 638. PW1 further deposed that on 06.01.14 in the morning, she came to know that her brother Asir had died. She reached the house of her brother and dead body of her brother was lying on the cot and accused Salma, children and landlord were present there. She further deposed that accused Salma told her that Asir has committed suicide by hanging. She got suspicious that her brother had been murdered because there were blood stains on the middle of left cheek of her brother and his neck was having red rashes as if having been caught hold of. She noticed that fan was having thick layer of dust. She further deposed that on 05.01.14 i.e one day before incident, she had seen accused Sohail going to the house of her deceased brother in the evening. She got suspicious that accused Salma and Sohail have killed her brother in order to remove any hindrance in their illicit relations. She informed her cousin brother about the incident and alerted him regarding whereabouts of Sohail and on the third day of the incident, when she received dead body along with her cousins Rukhsar and Sahir Ahmad, she lodged the complaint Ex. PW1/A. She had shown to the police the place of the incident and police prepared site plan.
9. PW2 Sh. Pran Singh S/o Sh. Bhole Ram deposed that he was the landlord of deceased and employed in Oriental Insurance Company. He further deposed that around one year back in the month of January, one Asir Ahmad was residing as tenant for the last 2 to 2 1/2 years. He was residing as tenant on the 3rd floor in one room alongwith his family comprising of his wife Salma, present in Court (correctly identified) and four children. He used to go to duty in the morning and comes in the evening. The relatives of Aseer Ahmad used to visit the house and he Page 7 of 63 could not specify those relatives. He further deposed that on 06.01.2014 in the morning at around 6 am, wife of Aseer Ahmad came to him and told that he was not waking up. PW2 further deposed that he went upstairs alongwith Salma to the room of Aseer Ahmad and found him dead in the room on his bed. Witness further deposed that when he inquired from Salma as to how Aseer would wake up when he is dead then Salma told him that Aseer Ahmad had hanged himself in the night. He told Salma to call Jija of Aseer Ahmad and Salma sent one girl to call him up. After about half an hour, Jija of Aseer Ahmad arrived at the spot. Jija of Aseer Ahmad after coming to the room expressed suspicion over Salma that death of Aseer Ahmad might be the handiwork of Salma. He called up the police. Police came at the spot and shifted the dead body to the hospital. Later on, he came to know that accused Sohail was the nephew (Bhanja) of Salma and they had some kind of understanding with each other. Police made inquiries from him and he told them, what he had desposed.
10. Ld. Addl. PP requested the court to cross-examine PW2 as he was not revealing the complete facts and the Court allowed the request. PW2 deposed that he cannot say exactly whether his statement was recorded on 14.01.2014. he denied the suggestion that he told the police that sometimes nephew of Aseer Ahmad used to visit the tenanted premises of Aseer Ahmad and he used to call him nephew of Aseer Ahmad. Ld. APP pointed towards the accused Sohail and asked him, if he is the same person and witness said that he was seeing the accused Sohail for the first time in the Court. PW2 denied the suggestions put by the Ld. Addl. PP.
Page 8 of 6311. PW3 Master Kaif S/o Lt. Mohd. Asir was examined in Child witness room through video conferencing in camera. Before recording statement of PW3, since he was aged 11 years, to ascertain her competency he was examined in general. The statement of the witness was recorded through video conferencing. Ms. Shalu Jain Advocate was appointed as legal aid counsel and support person to the family of the victim. Court put the following questions to the witness to ascertain his competency:
Q. What is your name?
Ans. Kaif.
Q. What is your father's name?
A. Late Mohd. Asir.
Q. What is your mother's name?
A. Salma.
Q. Do you go to school?
Ans. 5th class in Siris Public School, Rajbir Colony.
Q. What you had eaten today?
A. Kurkare and Fruity.
Q. Is it raining outside today?
A. No. Q. How you have come here today?
Ans. Alongwith my Foofa in an auto. Q. How many brothers and sisters you are? Ans. I have two brothers and one sister. Q. What is the name of your sister. Ans. Joya. She is younger to me.
Q. Do you quarrel with your sister? Ans. No. Q. Have you ever quarreled with your brother? Ans. I and brother Saif often quarrel.Page 9 of 63
Q. Where you and your brothers and sisters are residing at present?
Ans. I am residing with my Bua in Delhi and my other brothers and sisters are in Village with my grandmother.
Q. How many children your Bua has? Ans. One son and three daughters. Q. How old is youngest daughter of your Bua? Ans. Sania, she is aged 8 years.
Q. If you have beaten Sania and she starts crying, on being asked by your Bua that why she is crying and have you beaten her. You told her that you have not beaten her. Are you telling truth or lie?
Ans. Lie.
Q. How many packets of kurkure you have eaten?
Ans. One.
Q. After eating Kurkure if you say that you have not taken any Kurkure. Is it True or lie? Ans. Lie.
Q. If you are told that your Foofa has not come with you today. Is it true or lie?
Ans. Lie.
From the answers given by PW3, the court recorded its satisfaction regarding his competency to make statement and his statement was being recorded without oath. Since PW3 was very young and of tender age, at the request of Ld. APP the examination was being done in question-answer form.
12. After seeing the accused Salma, witness identified her to be his mother. He deposed that about one year back in the Page 10 of 63 midnight, he was sleeping in his house alongwith his two brothers and one sister. In the same room, his father was sleeping on the cot. He woke up after hearing the screaming of his father. He saw that his Bua's son Sohail was sitting on the chest of his father and pressing his throat. He identified the accused Sohail. At that time, his mother i.e accused Salma had caught hold the feet of his father. Witness further deposed that his mother scolded him, she asked him to go to sleep otherwise she will also kill him. Thereafter, his mother, accused Sohail, his father and his sister Gudiya (who was his cousin and sister of Sohail) went outside that room. He saw from the window that his mother, Sohail and Gudiya were talking with each other. Thereafter, his mother and Gudiya came inside the room. Thereafter, they all went to sleep. His mother and Gudiya also lie down on the floor and went to sleep.
13. He further deposed that in the morning, he woke up and found his father lying dead on the cot. Police came there. He alongwith his brothers and sisters went to the house of his Bua on their own. Thereafter, he was produced in the Court and a female Judge Sahib recorded his statement. He identified her signatures at point A on statement Ex.PW3/A recorded under Section 164 CrPC recorded by Ms. Richa Parihar, Ld. MM. He further deposed that he does not want to say anything more.
14. Ld. APP requested the Court to cross-examine the witness as he was not telling the true facts. The Court allowed the request. 10 minutes break was given to the witness. During his cross-examination, he deposed that it was correct that incident took place in night of 05.01.2014. At the request of Ld. APP, accused Sohail was shown to him again through video conferencing and he denied the Page 11 of 63 suggestion that accused Sohail was same Sohail who was his Bua's son.
Q. Accused Sohail, who was present in Court, was the same person who was pressing the throat of your father?
Ans. This question was put to the witness number of times, he paused for sometime and then nodded his head in affirmative.
Court Question: If accused Sohail was your cousin?
Ans. Yes.
Court Question: Then why you earlier did not identify him and had stated that he was not his Bua's son?
Ans. Since he got scared on seeing accused Sohail.
It is correct that accused Sohail had pressed the throat of his father and her father had died. Court Question: Earlier you have stated that your father had gone out with your mother, accused Sohail and Gudiya?
Ans. His mother, accused Sohail and Gudiya had gone out.
It is correct that thereafter, Gudiya and his mother came in the room and slept on the floor whereas accused Sohail went away.
15. PW4 Constable Amarpal deposed that on 08.01.2014, he was posted at PS Gazipur as Constable and on the directions of Duty officer, he took the copy of FIR as Special messenger to the house of Ld. MM.
Page 12 of 6316. PW5 Head Constable deposed that on 08.01.2014, he was posted as PS Gazipur and working as DO from 08 am to 8 pm. He further deposed that on that day at about 2.55 pm, Ct. Upender produced rukka sent by SI Kuldeep, on the basis of which, he registered the FIR under Section 302/34 IPC through computer operator. He brought the original register containing FIR NO. 10/14, computerised copy of which is Ex.PW5/A (OSR). He made endorsement Ex.PW5/B on the rukka which was in his handwriting and after registration of FIR, copy of FIR and rukka was sent to Inspector Ram Dhan through Ct. Upender. He proved certificate under Section 65B Indian Evidence Act is Ex.PW5/C.
17. PW6 Mohd. Saheer S/o Mohd. Yasin deposed that Asir Ahmad was his elder brother, who got married to accused Salma about 12 years ago and correctly identified the accused Salma in the Court. He further deposed that initially for about 4 years, accused Salma remained properly with his brother and thereafter, she started having an affair with accused Sohail, who was his real nephew and used to visit house of his brother frequently. He identified accused Sohail in the Court. He further deposed that two children were born out of the wedlock of accused Salma with his brother. He further deposed that his brother came to know about the affair of accused Salma with accused Sohail and tried to persuade her not to continue this relation but she did not mend her ways and continued his relation with accused Sohail.
18. PW6 further deposed that in the month of May 2014, once his brother caught accused Salma talking to accused Sohail, where upon a quarrel had taken place between the two. He further deposed that on 06.01.2014 while he was Page 13 of 63 present in his native village at District Faizabad, U.P. he received a telephonic call from his brother-in-law informing him about the death of his brother Asir Alımad. He further deposed that after 4-5 years of marriage of his brother, he told him that accused Salma was having illicit relation with accused Sohail and his brother had been killed for this reason only. He started from his native village on 06.01.2014 and reached Delhi on 07.01.2014. PW6 further deposed that on 08.01.2014, he identified the dead body of his brother in the Mortuary of LBS Hospital pertaining to which IO prepared identification memo Ex.PW6/A. His statement was recorded by the IO Ex.PW6/B. After post mortem being conducted, the dead body of his brother was handed over to them.
19. PW7 Dr. Sushil Kumar depoed that on 06.01.14 at about 1.15 pm, he was posted in LBS Hospital as CMO and on that day, Asir Ahmad s/o Mohd. Yasin aged 35 years male was brought in Hospital by Ct. Manoj with the alleged history of hanging. After examination vide MLC No. 247/14, he declared the patient as 'brought dead' and then directed the dead body to be shifted to Mortuary of LBS Hospital for post mortem and ascertaining the cause of death. He proved MLC no. 247/14 Ex.PW7/A being prepared by him.
20. PW8 SI Bhagwat Dayal deposed that on 09.01.2014, he was posted at PS Gazipur as ASI and on that day as per directions of SHO Inspector Y.S. Joon, he along with Ct. Upender went to Mumbai in order to arrest the accused Sohail Khan and on 10.01.2014, they reached Mumbai and went to PS Kurla, where accused Sohail Khan was already present in the custody of SI Vasant and one another PSI. He identified the accused Sohail in the Court. Inquiries Page 14 of 63 were made from the accused and thereafter, he was arrested in this case vide arrest memo Ex.PW8/A. Personal search of accused was conducted vide personal search memo Ex.PW8/B. Accused was got medically examined and thereafter sent to the lock up of PS Kurla. He recorded statement of concerned ASI, PSI and Ct. Suresh Bhau from PS Kurla, and Ct. Upender u/s 161 Cr.P.C. PW8 further deposed that on 11.01.2014, accused Sohail was produced in the court and after taking his transit remand, they brought him to Delhi and on 12.01.2014 produced the accused before the SHO PS Gazipur.
21. PW9 Constable Upender Singh deposed that on 08.01.2014, he was posted at P.S. Ghazipur and on that day, he joined investigation of this case with SI Kuldeep Singh and went with him to LBS Hospital. The post-mortem of deceased having last name Ahmad was got conducted. SI Kuldeep prepared rukka of the case. After the post- mortmem, deadbody was deposited in the mortuary and thereafter, they returned back to P.S. PW9 further deposed that on the next day i.e. 09.01.2014, he along with Ct. Dilip and ASI Bhagwat Dayal went to P.S. Kurla, Mumbai. Accused Sohail was already apprehended by the police official of P.S. Kurla and one PSI of PS Kurla produced accused Sohail before ASI Bhagwat Dayal and arrested him vide arrest memo Ex.PW8/A. Personal searched of accused Sohail Khan was conducted vide memo already Ex.PW8/B. Accused was produced before the Local Court and thereafter, brought to Delhi. He further deposed that on 3rd or 4th day, they returned back to Delhi and his statement was recorded by ASI Bhagwat Dayal in the P.S.
22. Ld. APP requested the Court to cross examine PW9 as he was resiling from his earlier statement given to the police.
Page 15 of 63PW9 submitted that he did not remember if completion of investigation on 08.01.2014 inspector RD Singh recorded his statement in this case or not and his statement was recorded by SI Kuldeep. He admitted that after post- mortem of deceased being conducted, SI Kuldeep recorded statement of Smt. Nasreen Bano (sister of deceased) and after preparing rukka of the case, SI Kuldeep handed over the same to him with the direction to get FIR registered in the PS. He further admitted that after registration of FIR he returned back alongwith copy of FIR and rukka and handed over the same to the IO. He further admitted that the deadbody of the deceased was handed over to his family members after post mortem vide memo Ex. PW9/A prepared by SI Kuldeep in his presence. He further admitted that after completion of investigation at LBS hospital they returned back to PS Ghazipur and visra box was deposited by the IO with MHC(M). He admitted that after arrest of accused Sohail at PS Kurla they returned back to PS Ghazipur on 10.01.2014 and his statement was recorded by Sl Bhagwat Dayal on the same day. He submitted that he could not state complete facts before the court during his examination in chief as he had forgotten some them as long time i.e. 4-5 years have laps. He denied the suggest that he had intentionally not disclosed complete facts during his examination in chief or he had been won over by the accused.
23. PW10 Constable Daleep deposed that on 09.01.2014, he was posted as Constable at PS Gazipur and on that day, he joined the investigation of the present case with IO ASI Bhagwat Dayal. He further deposed that on that day he along with IO left for Mumbai to arrest the accused Sohail Khan. The accused Sohail Khan was in the lock up of PS Page 16 of 63 Kurla, Mumbai and the next day ie 10.01.2014, they apprised the SHO of PS Kurla regarding the facts of the present case. He further deposed that accused Sohail Khan was interrogated and arrested in the present case Ex. PW8/A and his personal search memo was prepared Ex.PW8/B. The disclosure statement of accused Sohail Ex. PW10/A was recorded. IO had recorded his statement. He identified accused Sohail Khan in the court.
24. PW11 Dr. Vinay Kumar Singh, Specialist Forensic medicine, Aruna Asaf Ali Hospital, Delhi deposed that on 08.01.2014, while he was posted at LBS Hospital as Specialist Forensic Medicine. He deposed that on that day, IO SI Kuldeep Singh had submitted 11 inquest papers for conducting the post mortem of deceased Asir Ahmad ,35 years male and he alongwith Dr. Ashok Sagar, Sr. Resident had conducted the post mortem examination. He further deposed that on examination following external injuries were found on the body of deceased-
(i) Multiple crescentic abrasions present over right angle of mouth and right cheek in area of size 7 X 4 cm extending to ala of nose and right upper lip sizes are 0.5 X 0.4 cm, 0.4 X 0.3 cm, 1.5 X 0.2 cm, 0.9 X 0.6 cm, 1.5 X 1 cm, 0.6 X 0.3 cm.
(ii) crescentic abrasions present over left mandibular area of cheek of size 0.9 X 0.3 cm, 5.5 cm from left ear.
(iii) crescentic abrasions present over left mandibular area of cheek of size 0.9 X 0.2 cm, 5.1 cm from the left ear.
(iv) multiple crescentic abrasions present over right side of neck of size 0.5 X 0.2 cm, 3.5 cm from Page 17 of 63 mandibular, 6 crn from midline and 0.4 X 0.3 cm, 12 cm from mandible, 3 cm from midline.
(v) crescentic abrasions present over left side of neck 1.5 X 0.8 cm, 3.4 cm from the midline, anterior aspect.
(vi) crescentic abrasions present over left side of neck size 0.9 X 0.4 cm, 2.4 cm from midline and 10 cm below from mandible.
(vii) Abrasion present over right side of the nose, size 2 X 2 cm.
(viii) Abrasion present over right ear, posterior aspect of size 1.8 X 1 cm.
(ix) Bruise present over right side of neck, size 1.5 X 1.9 cm, 4.5 cm below right side of mandible.
(x) Bruise present over right side of neck, size 1.8 X 1.9 cm, 6 cm below right side of mandible.
(xi) crescentic abrasions present over right side of knee, 1 X 0.2 cm.
(xii) crescentic abrasions present over right medial malleolus of size 0.5 X 0.2 cm.
(xiii) Oral mucosal laceration present over inner aspect of upper lip of size 2.5 X 1 cm.
(xiv) Oral mucosal laceration, lower lip 3.5 X 1.5 cm.
(xv) Bilateral subconjunctival haemorrhages present.
PW11 further deposed that after examination, clothes, gauze piece and viscera were seized and sealed with the seal of department and handed over to IO along with sample seal and cause of death kept pending for want of report of chemical anaysis of viscera. He further deposed that time since death was about 54-64 hours prior to PM examination and the post mortem report no. 09/14 Page 18 of 63 was prepared by Dr. Ashok Sagar in his immediate presence Ex.PW11/A. He further deposed that on 10.07.2014 on receipt of request along with FSL report on viscera analysis they gave subsequent opinion on the cause of death after going through the copy of the post mortem report which was enclosed by the IO with his request and the cause of death was asphyxia consequent upon manual strangulation. All the injuries were ante- mortem in nature and recent in duration. Injury no.1 to 7, 9,10,13, 14 are collectively sufficient to cause death in ordinary course of nature. He along with Dr. Ashok Sagar prepared the subsequent report dated 10.07.2014 Ex.PW11/B.
25. PW-12 Constable Yogesh Kumar deposed that on 03.02.2014, he was posted at PS Gazipur and on that day, he collected exhibits including viscera and blood gauze and took it to FSL Rohini vide RC No. 14/21/14 and deposited the same at FSL Rohini. The receipt of the receiving was handed over to the MHC(M) and his statement was recorded. The exhibits remained intact while in his custody.
26. PW-13 W/Head Constable Rajbala deposed that on 09.01.2014, she was posted as constable at PS Gazipur, Delhi and on that day, she joined investigation with Inspector R.D. Singh and SI Kuldeep Singh and thereafter, they reached at B-198, Rajbir Colony, Delhi in search of accused Salma, where IO met Salma and after interrogation, her disclosure statement was recorded Ex. PW13/A and she was arrested vide arrest memo Ex.PW13/B. PW13 took personal search of accused Salma vide personal search memo Ex. PW13/C. The medical examination of accused Salama was got Page 19 of 63 conducted in the LBS Hospital and thereafter she was produced in Court. She identified accused Salma in the court.
27. PW-14 Head Constable Anil Kumar deposed that on 06.01.2014, he was posted as constable at PS Gazipur, Delhi and on that day, he along with ASI Kuldeep reached at H.No. B-198, Rajbir Colony. Delhi, where they found one dead body of a person namely Asir Ahmad, which was lying on the cot. Crime team has also reached at the spot. The dead body was taken to the LBS Hospital through him, where doctor observed the dead body and also verified that there were no symptoms of life. The dead body was got preserved and his statement was recorded.
28. PW-15 ASI Manoj Kumar deposed that on 06.01.2014, he was posted at Mobile Crime Team East District and upon receiving call, he along with his team reached at H. No. 198 Gali No. 1, Rajvir Colony, Delhi, where one dead body was lying. He took the photographs of the dead body from different angles and after developing the photographs, handed over to IO. He further brought the negatives of the photographs, positives of which were already on record. He identified seven photographs correctly Ex.PW15/A and negatives Ex.PW15/B.
29. PW-16 Insp. Kuldeep Singh deposed that on 06.01.2014, he was posted at PS Gazipur as Sub Inspector and on that day, he received DD No. 22 B with regard to death of a tenant at House No. B-198, Rajbir Colony Ex.PW16/A. He along with Ct. Anil reached at the above-mentioned house at about 11:00 am. They reached at second floor of that house and found dead body of one Asir Ahmad lying on the cot. He immediately informed crime team, who reached at the spot and inspected the spot and thereafter, he sent the Page 20 of 63 dead body to the LBS Hospital. He collected MLC of deceased Ex.PW7/A, who was already declared brought dead. Thereafter, dead body of Asir Ahmad was got preserved at mortuary. PW16 further deposed that on 08.01.2014, he along with Ct. Upender reached at LBS Hospital, where family members of deceased were also present. He recorded their statements Ex.PW6/A and Ex.PW6/B. He also recorded statement of accused Salma being wife of deceased Ex.PW16/B. Thereafter, postmortem of the body of Asir Ahmad was got conducted Ex.PW11/A. He also discussed the case with the doctor, who disclosed him that it was not the case of suicide. Thereafter, he examined the family members of deceased in detail. Nasrin Bano, who was the sister of deceased made allegations upon accused Salma and Sohail. He recorded her statement Ex.PW1/A and prepared rukka upon the basis of the complaint of Nasrin Bano Ex.PW16/C. The case was registered through Ct. Upender. Thereafter, investigation of this case was handed over to Insp. R.D. Singh. He further deposed that when he visited the LBS Hospital on the same day, Doctor also handed over to him one viscera box and another sealed pullanda containing wearing clothes of the deceased. Doctor also handed over to him one white envelope containing blood gauze after postmortem which was seized vide seizure memo Ex.PW16/D. PW16 further deposed that on 09.01.2014, he joined investigation with Insp. R.D. Singh and reached at the house of deceased and arrested accused Salma vide arrest memo Ex.PW13/B. He identified the accused Salma in the Court. Her personal search was also conducted by W/Ct Raj Bala and he signed upon the personal search memo Page 21 of 63 Ex.PW13/C. He further deposed that IO also recorded disclosure statement of accused Salma Ex.PW13/A.
30. PW-17 SI Sanjay Saxena deposed that on 06.01.2014, he was posted as Sub Inspector with Mobile crime team East Distt and on that day after receiving wireless message from Control Room East Distt., he along with Ct Manoj (photographer) and Ct. Narender (finger print proficient) reached at house No. B-198, Second floor, Gali No. 1 Rajbir Colony Gharoli Dairy Farm Delhi, where one dead body was found lying on the cot and SI Kuldeep along with other police staff were already present there. He inspected the spot and Ct. Manoj took photographs from different angle as per the instruction of SI Kuldeep. He prepared report and handed over to SI Kuldeep Ex.PW17/A.
31. PW-18 Insp. Mahesh Kumar deposed that on 14.01.2014, he was posted as Inspector draftsman in Crime Branch PHQ Delhi and on that day, he visted the spot i.e. 2nd floor house No. B-198 Rajbir Colony Gharoli Extn. New Delhi upon the request of the IO/Insp. Ram Dhan Singh PS Gazipur. He took rough notes and measurement at the instance of IO at the spot. He further deposed that on 31.01.2014, he prepared scaled site plan upon the basis of above-mentioned rough notes and measurements and after preparing, the scaled site plan handed over to IO Ex.PW18/A. Rough notes and measurement were destroyed after preparation of scaled site plan.
32. PW-19 Dr. Ashok Sagar Assistant Professor in G.S. Medical College, Pilkhawa, Hapur UP. deposed that on 08.01.2014, he was posted at LBS Hospital as Senior Resident at Deptt. Of Forensic Medicine and on that day IO/SI Kuldeep Singh submitted request papers for conducting postmortem of deceased Asir Ahmad, aged 35 Page 22 of 63 yrs male. He along with Dr. Vinay Kumar Singh had conducted the postmortem examination and prepared detailed postmortem report Ex.PW11/A. He further deposed that on 10.7.2014 on receipt of request along with FSL report on viscera analysis, he along with Dr. Vinay gave subsequent opinion on the cause of death Ex.PW11/B.
33. PW-20 W/Ct. Anjali Tomer deposed that on 06.01.2014, he was posted at CPCR PHQ, Delhi and on that day, a call was received vide channel number 152. He brought the original copy of PCR form Ex. PW 20/A.
34. PW-21 Ct. Suresh Bhau Kamble deposed that on 07.01.2014, he was posted at PS Kurla and received information that there was one Sohail Khan, who had hidden himself near Hari Masjid, LBS Road, might have committed some crime. He along with other ASI Kachre and PSI Koyande reached there and apprehended him. They brought him to PS Kurla and inquired him. He disclosed about the incident. Thereafter, they informed PS Gazipur and one ASI Dayal of Delhi police along with other staff reached their police station on 08/09.01.2014. He could not recollect the exact date. He further deposed that on 10.01.2014, accused Sohail Khan was arrested by ASI Dayal vide arrest memo Ex. PW 8/A and personal search of accused was conducted Ex. PW 8/B. Later on, his statement was recorded.
35. PW-22 HC Mukesh Kumar brought Register No. 19, bearing details of deposited case property of the present case and as per record, on 08.01.2014, SI Kuldeep Singh handed over three sealed pullandas with the seal of hospital containing one viscera box, white envelope, blood gauge and clothes of deceased to then MHC(M) Chandra Page 23 of 63 Bose. He made entry at Sl. No. 15 in the Register No. 19. As per record on 03.02.2014, the above said case property were sent to FSL Rohini vide RC No. 14/21/14 through Ct. Yogesh and on 24.06.2014 Ct. Lalit Kumar brought one pullanda along with sealed report of FSL and deposited the same into the Malkhana. He further deposed that on 27.06.2014, the report was handed over to then Inspector Investigation/ ATO. The copies of entires are Ex. PW 22/A (three entrie pages) (OSR).
36. PW-23 HC Sachin Singh brought Register no. 19 and 21 of PS Gazipur. As per Register no. 19 on 08.01.2014, SI Kuldeep Singh deposited one viscera box, white envelope having blood in gauge and one sealed pulanda having clothes of deceased, duly sealed with the seal of 'LBSHDFMT" and two sample seals. The copy of entry and other details in this regard is Ex. PW 22/A.
37. PW-24 Retd. Inspector R.D. Singh deposed that on 08.01.2014, he was posted at PS Gazipur as Inspector ATO and on that day, investigation of the present case was marked to him. He along with SI Kuldeep and two Constables reached at the spot i.e. B-198, II Floor, Rajbir Colony, Delhi, where he prepared site plan at the instance of the sister of deceased Ex. PW-24/A. He had recorded the statements of witnesses on 08.01.2014. He further deposed that on 09.01.2014, he along with SI Kuldeep, Lady Ct. Rajbala and one other Constable reached at B- 198 Rajbir Colony, Delhi -96 where he arrested accused Salma after interrogation and recorded her disclosure statement Ex. PW 13/A. He arrested accused Salma vide arrest memo Ex. PW 13/B and got conducted the personal search through Lady Ct. Rajbala vide memo Ex. PW 13/C. Accused Salma was got medically examined at LBS Page 24 of 63 Hospital. He identified accused Salma in the court. He sent one police team to arrest accused Sohail Khan from Mumbai. He further deposed that ASI Bhagwat Dayal went to Mumbai to arrest accused Sohail Khan. After the medical examination of Sohail Khan, he was produced before the concerned Magistrate in KKD Courts and sent to judicial custody. He identified accused Sohail in the Court. He filed the charge sheet after completion of the investigation.
38. PW-25 PI (Police Inspector) Tuka Ram Shankar Koyande deposed that on 07.01.2014, he was posted at PS Kurla Mumbai as Police Sub Inspector and on that day at about 4.55 pm, SI Kachre produced a person namely Sohail Khan in front of him and disclosed that he had committed some offence in New Delhi. He identified accused Sohail Khan in the Court. He further deposed that on 08.01.2014, he arrested accused Sohail under section 41.1(a) Cr.P.C and on 09.01.2014, released on personal bond. He further deposed that during the inquiry, it was revealed that a murder case had already been registered against him in New Delhi. He again called accused in PS Kurla and arrested him on 10.01.2014 and on the same day, Delhi police officials had also reached the Police Station and accused Sohail Khan was handed over to them. IO of this case recorded his statement. The true copy of station diary dated 07.01.2014 by which he arrested accused Sohail Khan initially vide memo is Ex.PW25/A. He further deposed that as per station diary Ex.PW25/A, one person namely Shyam Mohd Noor Mohd. Khan aged about 38 years gave information to ASI Kachre that his distant relative Sohail Khan was present at Indra Nagar Jhoparpatti, who had committed some offence in Delhi and Page 25 of 63 Delhi Police was searching for him and thereafter, ASI Kachre tried to find out Sohail Khan, who was found in Hari Masjid Kurla and thereafter, he was brought to PS Kurla.
STATEMENT OF ACCUSED PERSONS U/S 313 Cr.P.C.
39. In the statement of accused under Section 313 Cr.P.C., accused Sohail submitted that he was called to PS at Mumbai u/s. 41 Cr.P.C. on 07.01.2014 and was detained illegally for two days and he was arrested by ASI Dayal Singh on 10.01.2014. He further stated that he never gave any disclosure statement. He further submitted that Nasrin Bano, sister-in-law of co-accused Salma had intention to grab the property bought in her name by deceased husband and she conspired and falsely implicated him, although, he was not present at the spot. He prefer to lead defence evidence but did not lead defence evidence.
40. In the statement of accused under Section 313 Cr.P.C., accused Salma submitted that her son master Kaif was tutored by her sister-in-law and IO to give false statement against her and co-accused Sohail, which was recorded by Ld. MM on 29.03.2014. She further submitted that this is false case registered on the complaint of her sister-in-law Nasrin Bano, who had intention to grab the property bought in her name by deceased husband. She further submitted that all the witnesses were tutored by the IO with the help of her sister-in-law to depose against both of them. She further submitted that room where incident took place is about 14 x 10 feet and it was not possible for co-accused Sohail to be present there when there were herself, her husband, her four children and one of her relative namely Page 26 of 63 Gudiya. She prefer to lead defence evidence and examined herself as DW1.
Defence evidence
41. DW-1 Ms. Salma deposed that she had come to depose regarding the incident dated 06.01.2014 when Ms. Gudiya who was the daughter of his Nanand (ननद) (sister in law) had also been residing with them for about two months. She was aged about 21 years at that time. Her husband and she had been sleeping with their four children. The eldest child was son who was aged about 9 years at that time. The other children were much younger. She further deposed that at about 5:30 am, when Gudiya woke up, she found some obstruction and shouted. She also woke up and saw her husband hanging from the ceiling fan. She immediately grabbed the legs of her husband to support him and asked Gudiya to pull the sewing machine and take out the scissors. Gudiya then cut the rope using the scissors and they brought down her husband. They tried to check and revived him and when he did not respond, she rushed to their landlord Mr. Pran Singh while Gudiya went to the house of her aunt Mausi (मौसी) namely Nasreen. The landlord then came to the room and also checked her husband and when he did not respond, the landlord informed them that her husband had died. Her Nanand (ननद) Nasreen came to the house and insisted that they should take the body for burial. However, the landlord insisted that they should inform the police and he called PCR no.100 and the police took the body for post mortem.
42. She further deposed that on 07.01.2014, Nasreen told her that she was required to go to LBS hospital as the dead body of her husband would not be released without her signatures and on the asking of Nasreen, she gave her Page 27 of 63 gold jewellery and two gold jewellery articles of her young daughter for safe keeping. She also gave her Rs. 3.5 lakhs which her husband had saved for purchasing a property in the village about 3-4 days prior to n the date of his death. Her husband had also purchased another property in her name. She handed over the jewellery and cash to Nasreen in good faith as she said that as the house was going to be locked and police would keep searching it. She told her that she should accompany the body in the ambulance from the hospital. She further deposed that in the evening of 07.01.2014, she was called to the police station. Since, they remained at the police station through the intervening night of 07/08.01.2014, she also saw Nasreen having some discussion with the police officials. She did not hear the exact conversation. She further deposed that on the next day i.e. 09.01.2014, she was sent to judicial custody upon arrest. She further deposed that on 24.01.2014, Nasreen came to meet her at the jail, where she asked her to transfer the title of the plot purchased by her husband in her name to her ownership. She told her that if she would transfer the said plot to her, she would get out of jail and nothing would happen to her. However, she refused. Subsequently, Nasreen made her minor son namely Kaif, aged nine years as a witness in the present case and rather excluded the 21-year-old witness namely Gudiya from the investigation. Nasreen also took away all articles from her house when the landlord asked for the house to be vacated. She instigated her son Kaif to depose falsely as he was in her custody and under her influence. She further deposed that she has no role in the death of her husband. The allegations against her and in the FIR as well as chargehsheet as a whole are completely false and Page 28 of 63 motivated on behalf of Nasreen. Her son Kaif was in the custody of Nasreen while her other two children were residing with her mother-in-law in the village. The children have been kept separated from her and she last saw them before the Court in certain proceedings in the year 2018.
NATURE OF INJURY AND CAUSE OF DEATH
43. The case of prosecution is that death of victim Asir Ahmad is a case of culpable homicide and death is caused due to manual strangulation. Ld. APP has relied upon Ex. PW11/A and Ex.PW11/B and the testimony of PW11 and PW-19, who conducted the post-mortem of the deceased. It is further submitted that the testimony of PW3 corroborates the medical evidence, which proves that the death of deceased Asir Ahmad is caused due to strangulation. It is contended that both the accused namely Sohail and Salma in furtherance of common intention strangulated Asir Ahmad resulting in his death due to asphyxiation consequent upon manual strangulation. On the other hand, Ld. Counsels for both the accused persons have vehemently argued that Asir Ahmad committed suicide by hanging and prosecution has failed to prove beyond reasonable doubt that the death of Asir Ahmad is caused due to manual strangulation. It is suggested that the nature of injuries shown in Ex.PW11/A are possible in case of hanging and the medical opinion in this regard is not conclusive and supportive of the hypothesis of the prosecution that death of the Asir Ahmad is due to manual strangulation.
44. The post-mortem report Ex.PW11/A shows fracture of left Cornue Hyoid bone. Both lungs are shown to be congested with multiple petechial haemorrhages. Post-mortem report Page 29 of 63 further shows that Liver, spleen, both kidneys, oesophagus, pharynx, Larynx, Trachea and Brain of the deceased are congested. No secretion from any natural orifice has been reported. Face is stated to be suffused. Ex.PW11/A shows presence of following injuries:
(1) Multiple crescentic abrasions present over right angle of mouth and right cheek in area of size 7 X 4 cm extending to ala of nose and right upper lip sizes are 0.5 X 0.4 cm, 0.4 X 0.3 cm, 1.5 X 0.2 cm, 0.9 X 0.6 cm, 1.5 X 1 cm, 0.6 X 0.3 cm.
(2) Crescentic abrasions present over left mandibular area of cheek of size 0.9 X 0.3 cm, 5.5 cm from left ear.
(3) Crescentic abrasions present over left mandibular area of cheek of size 0.9 X 0.2 cm, 5.1 cm from the left ear.
(4) Multiple crescentic abrasions present over right side of neck of size 0.5 X 0.2 cm, 3.5 cm from mandibular, 6 cm from midline and 0.4 X 0.3 cm, 12 cm from mandible, 3 cm from midline. (5) Crescentic abrasions present over left side of neck 1.5 X 0.8 cm, 3.4 cm from the midline, anterior aspect.
(6) Crescentic abrasions present over left side of neck size 0.9 X 0.4 cm, 2.4 cm from midline and 10 cm below from mandible.
(7) Abrasions present over right side of the nose, size 2 X 2 cm.
(8) Abrasions present over right ear, posterior aspect of size 1.8 X 1 cm.
(9) Bruise present over right side of neck, size 1.5 X 1.9 cm, 4.5 cm below right side of mandible.
(10) Bruise present over right side of neck, size 1.8 X 1.9 cm, 6 cm below right side of mandible. (11) Crescentic abrasions present over right side of knee, 1 X 0.2 cm.
(12) Crescentic abrasions present over right medial malleolus of size 0.5 X 0.2 cm.
(13) Oral mucosal laceration present over inner aspect of upper lip of size 2.5 X 1 cm.
(14) Oral mucosal laceration, lower lip 3.5 X 1.5 cm. (15) Bilateral subconjunctival haemorrhages present.
Page 30 of 63Ex.PW11/A further recorded that effusion of blood is present in throat tissue of neck bilaterally underneath as shown in injury no. 4, 5 & 6.
45. The Medical Jurisprudence recognizes a marked difference between hanging & strangulation and in the appearance of dead body after death by hanging, which normally is suicidal and after death by strangulation, which normally is homicidal. Hanging is a form of death produced by suspending the body with a ligature round the neck, constricting force being the weight of the body (or a part of the body weight). In Modi's Medical Jurisprudence, it has been observed that:
"In hanging from a high point of suspension, the victim is either fully suspended, with his feet clear off the ground or he is suspended in a standing posture with his knees slightly flexed.
In hanging from a low point of suspension (partial hanging), a comparatively little force, about 4.5 kg is enough to occlude blood vessels of the neck. The term 'partial hanging', is used for such cases in which the bodies are partially suspended, or for those in which the bodies are in a sitting, kneeling, reclining, prone, or any other posture. In all such cases, death is inevitable from slow asphyxia, if there is enough force upon the ligature to constrict the neck.
When the point of suspension is over the centre of occiput, there is a maximum possibility of occlusion of the arteries and this is known as typical hanging, while all other points of suspension are called atypical hanging."
46. Strangulation is a violent form of death which results from constricting the neck by means of a ligature or of any other means without suspending the body. It is called throttling when constriction is produced by the pressure of the finger and palms upon the throat. It is called mugging when it is brought by compressing the throat with a foot, knee, bent elbow or some other solid substance. Another form of Page 31 of 63 strangulation is called garrotting wherein the victim is killed by silently throwing a rope or a linen cloth over his head from behind and quickly tightening the same around neck. In such a case due to sudden loss of consciousness, there is no resistance at all and the assailant is then able to tight the ligature.
47. The Hon'ble Supreme Court referred to 25th Edition of Modi on Medical Jurisprudence and toxicology in Javed Abdul Rajjaq Shaikh v. State of Maharashtra, (2019) 10 SCC 778, which highlights the differences in Hanging and Strangulation as under:
Hanging Strangulation
1 Most suicidal. 1. Mostly homicidal.
2. Face--Usual pale and 2. Face--Congested, livid and
petechiae rare. marked with petechiae.
3. Saliva--Dribbling out of 3. Saliva--No such dribbling.
mouth down on the chin and
chest.
4. Neck--Stretched and 4. Neck--Not so.
elongated in fresh bodies.
5. External signs of asphyxia 5. External signs of asphyxia,
usually not well marked. very well marked (minimal if
death due to vasovagal and
carotid sinus effect).
6. Ligature mark--Oblique, 6. Ligature mark--Horizontal
non-continuous placed high or transverse continuous,
up in the neck between the round the neck, low down in
chin and the larynx, the base the neck below the thyroid,
of the groove or furrow being the base of the groove or
hard, yellow and parchment- furrow being soft and
like. reddish.
7. Abrasions and ecchymoses 7. Abrasions and ecchymoses
round about the edges of the round about the edges of the
ligature mark, rare. ligature mark, common.
8. Subcutaneous tissues 8. Subcutaneous tissues
Under the mark--White, under the mark--
hard and glistening. Ecchymosed.
9. Injury to the muscles of neck 9. Injury to the muscles of the
--Rare. neck--Common.
10. Carotid arteries, internal 10. Carotid arteries, internal
coats ruptured in violent coats ordinarily ruptured.
Page 32 of 63
cases of long drop.
11. Fracture of the larynx and 11. Fracture of the larynx,
trachea--Very rare and may trachea and hyoid bone.
be found that too in judicial
hanging.
12. Fracture--dislocation of the 12. Fracture--dislocation of the
cervical vertebrae-- cervical vertebrae--Rare.
Common in judicial hanging
13. Scratches, abrasions and 13. Scratches, abrasions
bruises on the face, neck fingernail marks and bruises
and other parts of the body-- on the face, neck and other
Usually not present. parts of the body--Usually
present.
14. No evidence of sexual 14. No evidence of sexual
assault. assault.
15. Emphysematous bullae on 15. Emphysematous bullae on
surface of the lungs--Not surface of the lungs-- May
present. be present.
48. PW 11 and PW 19 conducted the post-mortem of the deceased and prepared the post-mortem report Ex.PW11/A. Both these prosecution witnesses gave the medical opinion vide Ex.PW11/B gave opinion as to the cause of death of the deceased as follows:
'In my opinion, to the best of my knowledge and belief death in this case was due to asphyxia consequent upon manual strangulation. All injuries are antemortem in nature and recent in duration. Injury No.1, 2, 3, 4, 5, 6, 7, 9, 10, 13, 14 are collectively sufficient to cause death in ordinary course of nature.'
49. As already discussed throttling is constriction produced by pressure of fingers and palm upon throat. Mugging is when strangulation is brought about with the foot, knee, bend of elbow or some other solid substances. In garrotting, the victim is killed by silently throwing a rope or a linen cloth over his head from behind and quickly tightening the same around neck. In such a case due to sudden loss of consciousness, there is no resistance at all and the Page 33 of 63 assailant is then able to tight the ligature. In this present case the choice is between finding death by hanging or by throttling. It is necessary in this case to look at the post- mortem and also the evidence of the medical officer, PW 11 & PW 19. PW 11 has been cross-examined at length by the Ld. Counsels for the accused persons. PW11, who conducted the post-mortem of deceased deposed that fracture of Cornue hyoid bone is seen only in violent asphyxia deaths. He further stated violent asphyxia deaths are strangulation by hands or ligature etc. and it would not mean death by suicidal hanging. PW 11 doctor has deposed that Injuries 7 i.e. the abrasions on the nose will only be found in strangulation death and not in suicidal death and hanging. He further deposed that it is mentioned in Ex.PW-11/A that the face of the deceased was suffused and petechiae haemorrhages in lungs were present. He also stated that Ex.PW-11/A mentions that there was no secretion from natural orifices. He further stated that post- mortem report does not mention that the neck was elongated, which is usually seen in hanging. He deposed that the report does not mention any ligature marks, which are usually found in cases of hanging and ligature strangulation. He admitted that Ex.PW-11/A does not show presence of grooves and furrows and stated these are also usually present in cases of hanging and ligature strangulation.
50. The Medical Jurisprudence and the renowned work done by various authors in this regard including Modi on Medical Jurisprudence and toxicology referred to and relied upon by the Constitutional Courts leaves no doubt that in the case of hanging, fracture of the hyoid bone is very rare and that too it may be found in judicial hanging. On the other Page 34 of 63 hand, fracture on the larynx, trachea and hyoid bone indicates strangulation. PW 11 also states in cross- examination that fracture of hyoid bone found during post- mortem of the deceased is seen only in violent asphyxia deaths i.e. deaths due to strangulation by hands or ligature etc and not in suicidal hanging.
51. Ex.PW11/A recorded that effusion of blood is present in throat tissue of neck bilaterally underneath as shown in injury no. 4, 5 & 6. Injury no. 4, 5 and 6 are crescentic abrasions present on right and left side of the neck, which finding is usually present in case of strangulation. No ligature marks were found on the neck of the deceased, which are present in hanging and ligature strangulation and are absent in throttling. PW 11, who is cross-examined at length deposed that ligature marks are absent in Ex.PW- 11/A, which are usually found in cases of hanging and ligature strangulation. In the present case abrasions are present over mouth, cheeks, lips, nose, neck and ear, which are usually present in manual strangulation and are rare in suicidal hanging. In the work by Modi, scratches, abrasion fingernail and bruises on the face, neck and other parts of the body are usually present in the case of strangulation.
52. In the light of the differences between hanging and strangulation, in a case of hanging, saliva will dribble down the mouth down on the chin and the chest whereas in a case of strangulation, there will be no such dribbling. PW 11 Medical Officer was specifically asked with respect to saliva. He has stated that he has mentioned no any secretion from natural orifices. He stated that there was no saliva, stool, semen, blood present from natural orifices. In the case of hanging, the neck will be stretched, elongated Page 35 of 63 in fresh bodies while it is not so in the case of strangulation. PW 11 has stated that he has not noticed that the neck was stretched and elongated in the case of the deceased.
53. PW 19, medical officer, who alongwith PW 11 conducted the post-mortem denied the suggestion that it was a case of suicide and not homicide. He stated that Ex.PW 11/A was prepared by him and PW11 and the opinion Ex.PW 11/B was also given by him and PW11. Both the medical officers have unequivocally opined that the death of cause is asphyxia consequent upon manual strangulations. No ligature marks have been found during post-mortem, which are present in case of suicidal hanging and ligature strangulation. Ex.PW11/A shows presence of crescentic abrasions and bruises on the face, neck and ear, which are usually present in the case of strangulation and are absent in the case of hanging. Similarly fracture of hyoid bone as shown in Ex.PW-11/A is also a distinct feature of throttling (manual strangulation) and is not found in case of suicidal hanging. Ex.PW11/A further shows that both lungs are congested with multiple petechial haemorrhages, which is also indicative of manual strangulation. The injuries reported in Ex. PW 11/A in light of the discussion in preceding paras are also indicative that it is a case of strangulation and not suicidal hanging. The prosecution has proved beyond reasonable doubt that the death of deceased Asir Ahmad is a case of culpable homicide and caused due to asphyxia consequent upon manual strangulation.
SCENE OF CRIME
54. Ex. PW20/A Delhi Police Control Room, Form I shows that information was received at 10:38:23 from mobile no. 9910208096 that a that a tenant has died natural death in Page 36 of 63 Rajvir Colony, Gali No.1, House No.B-198. PCR arrived at the scene of crime at 10:41:23 and the information was passed on to the police station, Ghazipur. Thereafter Ex.PW 16/A, DD No. 22 B dated 06.01.2014 was recorded at 10:48 Hrs. The deceased Asir was found dead lying on cot by the PW ASI Kuldeep, who arrived at the scene of crime alongwith head constable Anil Kumar, PW-14 after receiving DD No. 22B, where accused Salma alongwith her children was present.
55. PW2, the landlord, who has been declared hostile by the prosecution deposed that on 06.01.2014 at around 6 am, accused Salma came to him and told him that deceased Asir Ahmad in not waking up. Thereafter PW2 went upstairs alongwith Salma and asked her as to how the deceased would wake up, when he is already dead. He stated that Salma told him that he had hanged himself up in the night. Witness asked Salma to call Jija (brother in law) of deceased, who on arriving at the scene of crime expressed suspicion over Salma that death of Aseer Ahmad might be handiwork of Salma. Thereafter the witness called the police. Police came at the spot and shifted the dead body to the hospital.
56. Crime team arrived at the scene on 06.01.2014 at about 12:20 pm and examined the spot till 12:50 pm. PW 17 proved Ex.PW17/A, SOC Report, which shows that a silver colour string and one purple colour chunni was lifted from the spot. Ex.PW18/A, which is the scaled site plan of scene of crime shows that the deceased was found lying on a cot in a room of dimensions 262 cm x 375 cm. As per case of prosecution, on the day of incident, deceased Asir Ahmad, his wife accused Salma alongwith four children, the eldest being Mohd. Kaif aged around 9 years at the Page 37 of 63 time of incident were sleeping in the same room, which fact has not been disputed by the Defence. Ex.15A colly are the photographs of the scene of crime, which are not disputed by the Defence and accused Salma has admitted these photographs in her cross-examination.
57. It is also pertinent to observe that name of one more person namely Gudiya emerged during trial. PW3, who is star witness of the prosecution deposed that Gudiya, who is the sister of accused Sohail was also present on the scene of crime, when Sohail was strangulating his father and his mother had caught hold of the legs of his father. Defence has taken contradictory stands with regard to the presence of Gudiya at the scene of crime. Initially the defence counsel has disputed the presence of Gudiya at the scene of crime during testimony of PW3 and suggested that name of Gudiya has been taken by child witness at the instance of his Chacha, Bua and Foofa, however later on accused Salma who testified at DW1 deposed that Gudiya was present at the scene of crime and she is the one, who cut the rope in the morning, with which the deceased hanged himself. PW17, who prepared the report Ex.PW17/A has not been cross-examined by the defence counsel. Ex.PW17/A show recovery of one silver colour string. It does not show recovery of two pieces of the string. Thus the testimony of Accused Salma that Gudiya cut the rope in the morning while she held the deceased by legs to bring him down on the cot stands contradicted. Accused Salma has also admitted the photographs Ex.PW15/A colly, which also contain the photo of the silver colour string, however the string is seen in one single piece in the photograph and there is no scissor seen in any of the Page 38 of 63 photographs nor the crime report Ex.17/A mentions recovery of any such scissor.
58. From the testimony of witnesses including the DW1, accused Salma herself, one fact stand proved that accused Salma's presence at the scene of crime stands established and she has herself admitted that she was present at the scene of crime, though she deposed that deceased committed suicide. As already discussed, the post mortem report Ex.PW11/A and the testimony of medical officers, PW11 and PW19 has proved beyond reasonable doubt that the death of deceased Asir Ahmad is due to asphyxia consequent upon manual strangulation. The testimony of Accused Salma itself shows that there was no reason for the deceased for having committed suicide. Thus from discussion, it stand proved that death of deceased Asir Ahmad is a case of culpable homicide and Accused Salma was present at the scene of crime, when the accused died.
59. Accused Salma, who deposed as DW1 stated that on the day of incident, Gudiya woke up at about 5:30 am and found some obstruction and shouted. Thereafter she also woke up and saw that her husband hanging from the ceiling fan. She further stated that she immediately grabbed the legs of her husband to support him and asked Gudiya to pull the sewing machine and take out the scissor. Gudiya then cut the rope using the scissors and Salma and Gudiya brought down the deceased. In the entire testimony of the witness, there is no mention of the fact that thereafter she or Gudiya also took away the rope, which the deceased had allegedly tied with the ceiling fan to hang himself as per the story of the prosecution. Photographs Ex.PW15A colly admitted by the accused Page 39 of 63 Salma does not show any piece of rope tied with the ceiling fan nor the cut off pieces of rope are found in the Ex.PW15/A colly and PW17/A.
60. PW2, the landlord, deposed that on 06.01.2014 at around 6 am, accused Salma came to him and told him that deceased Asir Ahmad in not waking up. Ex. PW20/A Delhi Police Control Room, Form I shows that information was received at 10:38:23 from mobile no. 9910208096 that a that a tenant has died natural death in Rajvir Colony, Gali No.1, House No.B-198. Neither DW1 in her testimony has deposed nor there is any material on record to shows that any attempt was made to rush the deceased to the hospital for 5 hours till the police arrived at the scene of crime.
61. In the present matter, prosecution has relied upon the testimony of PW3, who is son of deceased and accused Salma and is alleged to be an eyewitness of the incident. But before delving into the testimony of PW3 and other witnesses relied upon by the prosecution to prove the guilt of the accused persons, it is apposite to refer to section 106 of Indian Evidence Act. Whereas the offences committed in secrecy inside the house, which is covered within the four corner of wall, and the accused and deceased are living there in, it is not expected of the accused to dispose again herself. No doubt, the burden to prove the guilt of the accused is upon the prosecution, but the nature and amount of evidence to be led by the prosecution to establish a charge cannot be of same degree as is required in other cases of circumstance evidence. In view of the section 106 of Indian evidence act, 1872, there will be a burden on the accused who was living along with the deceased, to give an explanation as to how the crime had been committed. The Hon'ble Supreme Page 40 of 63 Court in Balvir Singh v. State of Uttarakhand, 2023 SCC OnLine SC 1261 reiterated the law on the subject and observed as under:
'37. In Tulshiram Sahadu Suryawanshi v. State of Maharashtra, (2012) 10 SCC 373, this Court observed as under:
"23. It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised. We make it clear that this section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. It is useful to quote the following observation in State of W.B. v. Mir Mohammad Omar [(2000) 8 SCC 382 : 2000 SCC (Cri) 1516] : (SCC p. 393, para 38) "38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. InShambu Page 41 of 63 Nath Mehra v. State of Ajmer [AIR 1956 SC 404 : 1956 Cri LJ 794] the learned Judge has stated the legal principle thus : (AIR p. 406, para 11) '11. This lays down the general rule 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 the accused and which he could prove without difficulty or inconvenience.
The word "especially" stresses that. It means facts that are pre-
eminently or exceptionally within his knowledge.'""
(Emphasis supplied)
38. In Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681, this Court was considering a similar case of homicidal death in the confines of the house. The following observations are considered relevant in the facts of the present case:
"14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions [[1944] A.C. 315 : [1944] Page 42 of 63 2 All ER 13 (HL)] -- quoted with approval by Arijit Pasayat, J. inState of Punjab v. Karnail Singh [(2003) 11 SCC 271 : 2004 SCC (Cri) 135].) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
"(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him."
15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.
xxx xxx
xxx
22. Where an accused is alleged to have
committed the murder of 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 Page 43 of 63 takes 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. ..."
(Emphasis supplied)
62. The Hon'ble Apex Court in Deonandan Mishra v. The State of Bihar, AIR 1955 SC 801 observed as under:
"It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case where the various links have been satisfactorily made out and the circumstances point to the accused as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which, if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain."
63. In the case on hand it has been established or rather proved to the satisfaction of the court that the deceased was in company of accused Salma at a point of time when he was strangulated to death and therefore, in such circumstances the accused Salma alone knew what happened to the deceased on the fateful night and she has failed to offer an explanation, which, if accepted, though not proved, would offer a reasonable basis for conclusion of the entire case consistent with her innocence. The false explanation provided by the accused Salma that deceased Page 44 of 63 committed suicide, which stand demolished by the medical evidence is itself an additional link, which complete the chain of evidence consistent with her guilt.
ROLE OF ACCUSED PERSONS CHARGED FOR THE MURDER OF THE DECEASED ASIR AHMAD
64. It has been argued by the Ld. APP that prosecution has proved beyond reasonable doubt that the accused Sohail and Salma in furtherance of common intention has caused the death of the deceased Asir Ahmad. He relied upon the testimony of PW3 and submits that the defence has failed to impeach the credibility of this witness in cross-examination. Further PW1 and PW6 deposed that accused Salma and accused Sohail was in relationship, which establishes the motive for the murder of deceased. PW3, who is the son of accused Salma and is an eyewitness of the incident also denied the suggestion that accused Sohail did not use to visit the house of deceased. It is further submitted that the testimony of PW1 shows that accused Sohail was seen near the house of the deceased on the evening of 05.01.2014 and the testimony of PW3 shows that accused Sohail strangulated the deceased while Salma held the deceased by his legs.
65. Ld. Counsel for the accused Sohail has argued that PW3 failed to identify the accused in the court and only after being repeatedly asked by the Ld. APP during cross-examination, witness nodded his head in affirmative. It is argued that prosecution has failed to establish the presence of accused Sohail at the scene Page 45 of 63 of crime beyond reasonable doubt and thus accused Sohail is liable to be acquitted.
66. Ld. Counsel for the accused Salma has argued that the PW3 has been tutored by PW1, who happens to be her sister in law with a view to grab the property purchased by the deceased in the name of Salma. It is further submitted that the accused Salma has also kept some cash with the PW1, which she wants to usurp and therefore she has tutored PW3 to deposed falsely to implicate the accused Salma. It is vehemently argued that the allegations that accused Salma was in relationship with the co-accused Sohail during her marriage with the deceased are baseless and the prosecution has failed to ascribe any motive to the accused Salma. It has been argued that Prosecution purposely failed to examine Gudiya, who was present at the spot despite the testimony of PW3 to the effect that Guidya was present on the spot. Ld. APP has vehemently argued that earlier an application under section 319 CrP.C. filed on behalf of the complainant for summoning Gudiya as co-accused has been dismissed by the Court vide order dated 16.03.2020. He has argued that Gudiya is an interested witness being the sister of co-accused Sohail and thus in view of the clinching evidence led by the prosecution and the testimony of the PW3, non- examination of the said witness does not aid the case of the defence, rather accused Salma, who has led evidence in defence failed to examine Gudiya to corroborate her defence.
Page 46 of 6367. In so far failure of prosecution to examine Gudiya is concerned, PW3 in his earlier statement recorded under 164 did not name Gudiya being present at the time of incident and thus he was not cited as prosecution witness. Later Gudiya was summoned as Defence Witness by the accused persons, which fact is reflected from the order- sheets dated 11.12.2019 and 03.02.2020, however later on accused persons chose not to summon her during Defence Evidence. Ld. Predecessor of this Court in order dated 16.03.2020 has opined that no role has been attributed to Guidya in the murder of deceased. Further PW3 in his cross-examination has deposed that Gudiya was trying to pull the accused Sohail away from the deceased, when the accused was strangulating the deceased. Gudiya is the sister of accused Sohail and is thus is an interested witness earlier sought to be examined in defence by the accused persons and thus prosecution cannot be doubted for not examining her as a prosecution witness.
68. PW1 Ms. Nasrin Bano W/o Sh. Mashuk Ali deposed that her younger brother Asir Ahmad got married with accused Salma about 12 years back (accused appeared in court in Burqa, she was asked to remove the same for the purpose of identification, she removed the burqa and correctly identified by witness). She further deposed that Accused Sohail present in court (correctly identified by name) is son of her real sister Shah Khatoon. She further deposed that after few days of the marriage, accused Salma developed illicit relation with accused Sohail and at that time, they were in village Chandramoh Distt. Barabanki, UP. She further deposed that she and other family members tried to make both accused persons understand, but both the Page 47 of 63 accused persons kept on meeting and talking with each other on phone. She further deposed that about 8 years ago, her brother Asir along with accused Salma and their children shifted to Delhi. She further deposed that her brother and Salma used to quarrel often because Salma was having relations with accused Sohail, but accused Salma did not stop meeting and talking on phone with accused Sohail. She further deposed that about a week before his death, her brother caught Salma talking on phone with accused Sohail and both quarrelled because of that and accused Salma had said angrily that it shall be better for her if she goes to accused Sohail.
69. PW1, sister of deceased and sister-in-law of accused Salma deposed that on 06.01.14 in the morning, she came to know that her brother Asir had died. She reached the house of her brother and dead body of her brother was lying on the cot and accused Salma, children and landlord were present there. She further deposed that accused Salma told her that Asir has committed suicide by hanging. She got suspicious that her brother had been murdered because there were blood stains on the middle of left cheek of her brother and his neck was having red rashes as if having been caught hold of. She noticed that fan was having thick layer of dust. She further deposed that on 05.01.14 i.e., one day before incident, she had seen accused Sohail going to the house of her deceased brother in the evening. She got suspicious that accused Salma and Sohail have killed her brother in order to remove any hindrance in their illicit relations. She informed her cousin brother about the incident and alerted him regarding whereabouts of Sohail and on the third day of the incident, when she received dead body along with her cousins Page 48 of 63 Rukhsar and Sahir Ahmad, she lodged the complaint Ex. PW1/A. She had shown to the police the place of the incident and police prepared site plan.
70. Ex.PW15/A colly, the photographs of the scene of crime, which have been admitted by the accused Salma corroborate the fact deposed by PW1 that ceiling fan at the scene of crime was full of dust. This fact further contradicts the defence put forth by accused Salma that deceased hanged himself with the ceiling fan as photograph no.3 of the ceiling fan Ex.PW15/A colly, which is full of dust does not show any impression of silver string/chunni being present. Testimony of PW2, who has not been cross- examined by Defence further corroborate the fact deposed by PW1 that on arriving at the scene of crime, she got suspicions that Salma is responsible for the death of her brother. Ex.PW11/A, the post mortem report which shows presence of crescentic abrasions on the face and neck of the deceased, which further corroborates the testimony of the witness that on arriving at the scene of crime, she noticed injury marks on the face and neck of the deceased. During her cross-examination, PW1 reiterated that accused Salma and Sohail was having extramarital relations. She has denied the suggestions put to her by the Defence to contradict her testimony. Defence has failed to impeach the credibility of the testimony of PW1. Further PW6, brother of the deceased also supported the testimony of this witness and stated that after four years of marriage of accused Salma with deceased, she developed affair with the co-accused Sohail. Further the PW3, son of accused Salma and deceased also deposed that he saw her mother Salma holding legs of his father, while accused Sohail strangulated him.
Page 49 of 6371. PW3 was 9 years of age at the time of incident. The Hon'ble High Court in State v. Nikhil Kumar, 2023 SCC OnLine Del 8129, discussed the law regarding the competency of child witness and observed as under:
16. Section 118 of the Indian Evidence Act, 1872 deals with the witnesses who can testify. It provides that all persons shall be competent to testify unless in the consideration of court they are prevented from understanding the questions put to them or from giving rational answers to those questions by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. The issue of evidentiary value of the testimony of child witness has been considered by the Supreme Court on many occasions. It is observed and held that the credibility of a child witness depends upon the circumstances of each case and the precaution which should have been taken while assessing the testimony of a child witness is that the witness must be reliable and demeanour of child witness must be like any other competent witness without likelihood of being tutored. The Supreme Court in Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341 also referred by the trial court in relation to child witnesses, held as under:--
5. ...A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction.
In other words, even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must Page 50 of 63 be like any other competent witness and there is no likelihood of being tutored.
17. The Supreme Court in Ratansinh Dalsukhbhai Nayak v. State of Gujarat, (2004) 1 SCC 64 also held as under:
--
7. ...The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe.
Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.
18. The Supreme Court in P. Ramesh v. State Rep by Inspector of Police, (2019) 20 SCC 593also held as under: --
15. In order to determine the competency of a child witness, the judge has to form her or his opinion. The judge is at the liberty to test the capacity of a child witness and no precise rule can be laid down regarding the degree of intelligence and knowledge which will render the child a competent witness. The competency of a child witness can be ascertained by questioning her/him to find out the Page 51 of 63 capability to understand the occurrence witnessed and to speak the truth before the court. In criminal proceedings, a person of any age is competent to give evidence if she/he is able to (i) understand questions put as a witness; and (ii) give such answers to the questions that can be understood. A child of tender age can be allowed to testify if she/he has the intellectual capacity to understand questions and give rational answers thereto. A child becomes incompetent only in case the court considers that the child was unable to understand the questions and answer them in a coherent and comprehensible manner. If the child understands the questions put to her/him and gives rational answers to those questions, it can be taken that she/he is a competent witness to be examined.
19. The courts as a rule of prudence before accepting the testimony of a child witness cautioned that the testimony has to be evaluated carefully being susceptible to tutoring. The Supreme Court in State of Madhya Pradesh v. Ramesh, (2011) 4 SCC 786 held as under:--
14. In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with grater circumspection because he is susceptible to tutoring. Only in case there is evidence or record to show that a child has been tutored, the court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition.
20. The Supreme Court in Ranjeet Kumar Ram @ Ranjeet Kumar Das v. State of Bihar, 2015 SCC Online SC 500 also Page 52 of 63 observed that evidence of the child witness and its credibility would depend upon the circumstances of each case and only precaution which the court has to bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one.
72. In the present case, Ld. Predecessor of this Court during preliminary examination of the child witness has put several questions to PW3 and from the answers given by the witness arrived at the satisfaction regarding the competency of the witness to make the statement.
Defence has contended that PW3 has been tutored by PW1 to depose against accused Salma with a view to usurp the property and money of accused Salma. PW3 is the son of accused Salma and deceased and was 11 years of age at the time of incident. Statement of PW3 was recorded under section 164 Cr.PC. before the Ld. Metropolitan Magistrate, which is Ex.PW3/A, wherein he stated that he got up after hearing the screams of his father. He further stated that it was 5th of January on being inquired by the Ld. MM. He stated that it was during night and he saw that his cousin Sohail (son of his bua) has climbed upon his father and was hitting him, while accused Salma was holding his father. His mother Salma scolded him and he lay down. He further stated that he went to his aunt's (PW1) house in the morning. Police had come to his house then they went to his aunt's house, who gave them food.
73. The witness reiterated the facts during his examination in chief and stated that at about midnight, he woke up after hearing the screams of his father and saw that accused Sohail was sitting on the chest of his father and pressing Page 53 of 63 his throat and his mother Salma had caught hold the feet of his father. Accused Salma scolded him and asked him to sleep or else she will also kill the witness. He stated that thereafter accused Salma, Sohail, Gudiya (Sister of accused Sohail) and his father went outside the room. He saw from window that Sohail, Salma and Gudiya were talking to each other. Thereafter accused Salma came back inside the room with Gudiya and they all went to sleep. In the morning PW3 woke up and found his father lying dead on the cot. He alongwith his brothers and sister went to his aunt's house. Thereafter he was taken before a female judge, who recorded his statement Ex.PW3/A. Witness failed to identify the accused Sohail present in the court. Ld. APP sought permission to cross-examine the witness.
74. After 10 minutes, the witness was cross-examined and he denied the suggestion that accused Sohail is the same Sohail, who is his bua's son. However, on repeated queries of the APP, whether accused Sohail present in court is the same person who was pressing the throat of his father. Court noted that witness paused for some time and then nodded his head in affirmative. Court inquired from the witness as to why he did not identify Sohail earlier and stated that he is not his cousin (bua's son) to which the witness replied that he got scared on seeing the accused Sohail. Court further inquired from the witness that he stated that his father alongwith accused Salma, Sohail and Gudiya had gone out to which the witness replied that Salma, Sohail and Gudiya had gone out. Support person made a request that the witness is not feeling comfortable and is feeling nervous and his statement be recorded after some gap. Court granted a break of 15 minutes, however Page 54 of 63 the support person again requested that witness is not feeling well and examination of witnesses was deferred for next day.
75. The witness was cross-examined by the Ld. Counsel for accused persons. Witness stated that he lives with his bua Nasreen and her husband and does whatever they tell him to do. He stated that he had told the police and Ld. MM in his statement that his mother Salma scolded him and asked him to go to sleep otherwise she will kill him. Thereafter accused Salma, Sohail, Gudiya (Sister of accused Sohail) and his father went outside the room. He stated that he saw from window that his mother Salma, accused Sohail and Gudiya were talking with each other. Thereafter accused Salma and Gudiya came inside the room and they all went to sleep. Salma and Gudiya also lie down on the floor and went to sleep. PW3 further stated that in the morning he woke up and saw his father lying dead on the cot. He further stated that his Fufa (husband of PW1) and Chacha (PW6) accompanied him for recording of his statement under section 164 Cr.PC. He admitted that his bua (PW1) and chacha (PW6) did not use to visit his house as they were not having good relations with his mother Salma. He stated that his father and mother did not used to quarrel and then again said that they both used to quarrel occasionally. He stated that they all used to sleep after switching off the light and after that there was complete dark in the room. He denied the suggestion that accused Sohail did not use to visit his house. He further stated that when he woke up, his brothers and sister had also woken up. He stated that house of his Bua is situated near his house. He stated that on next morning after reaching the house of his Bua (PW1), He immediately told Page 55 of 63 her the entire facts. He stated that he reached the house of his Bua at about 10:00 am and returned to his house at about 10:30 am with his Bua and Foofa. He stated that there was a watch in his house as well as his Bua's house. He stated that during the time, he stayed in the house of his Bua and she had given him and his brothers and sister, who had also gone along with him, tea. He stated that before taking tea, he had told everything to his Bua. He further stated that when they reached, his house, police was there. Police left his house at about 11/11:30 am. At the request of the Ld. Counsel for accused persons, witness was asked to tell the time from the wall clock installed in the Court room. The witness told the correct time that is 11:50 am.
76. PW3 denied the suggestion that there was complete darkness in the room, when he woke up and volunteered that at that time Gudiya had switched on the light. He stated that he visited the PS 2-3 times alongwith his Uncle. He stated that he was once accompanied by his Foofa. PW1 deposed that his Bua never accompanied her to the PS. He further denied the suggestion that whatever he had told to the police and judge Sahab was told at the instance, of his chacha, bua and Fufa and that he had not told the truth. He further denied the suggestion that even for the court, he was making the statement being tutored by his chacha Bua and Fufa, and he is not telling the truth. He denied the suggestion that since his bua and chacha were not having good relations with his mother Salma, due to this reason at their instance, he was making falls statement in the court against the accused persons. He denied the suggestion that he had not seen anything as stated by him Page 56 of 63 or that accused Sohail had not come to his house on the night of the incident.
77. Ld. APP sought, permission from the court to ask questions from the witness regarding the presence of Gudiya at the time of incident. The witness stated that Gudiya is the real sister of accused Sohail who lives in Gonda village UP. He further stated that for the last one month prior to the incident, Gudiya was residing in his house. He stated that he never visited house of Gudiya at Gonda. He stated that he, does not know the name of the mother of Gudiya and accuse Sohail. He stated that Gudiya was pulling accused Sohail away from his father while he was killing his father. Witness denied the suggestion by the Leonard council for the accused persons that he has named Gudiya at the instance, of his Chacha, Bua and Fufa.
78. Ld. Counsel for accused persons have argued that testimony of PW3 is full of material contradictions and improvements. It is pointed out that the PW3 deposed that his father alongwith accused Salma, Sohail and Gudiya went outside after his father was strangulated by accused Sohail while Salma held his legs. It is further submitted that PW3 failed to identify accused Sohail in the court. It is further argued that the witness is tutored by his Bua, who wants to usurp the property purchased by the deceased in name of accused Salma. In case of child testimonies, the well-settled principle of corroborating testimony of child witness is not a rule but a measure of caution and prudence, since a child witness of tender age is easily susceptible to tutoring. However, the same itself is no ground to reject the evidence of a child witness, and the Court is required to make careful and cautious scrutiny of such evidence by applying its mind on whether there was a Page 57 of 63 possibility of such child witness being tutored. The Hon'ble Supreme Court in Mangoo v. State of M.P., AIR 1995 SC 959 observed as under:
'9. The learned counsel also pointed out that PW 2 being a child witness, there was every scope of tu- toring and the fact that he has admitted that he was in the district headquarters for about 12 days before adducing the evidence, also shows that he must have been with the police for the purpose of tutoring. The mere fact that he might have been taken by the police to be produced as a witness, is not a ground to come to the conclusion that the wit- ness must have been tutored but on examining the evidence and from the contents, we have to see whether there are any traces of tutoring. We find that the version given by PW 2 appears to be quite natural and there is a ring of truth in the same. The evidence of PW 1 further corrobor- ates the evidence of PW 2, namely, to the extent that immediately after the occurrence PW 2 men- tioned the names of the accused and the manner in which his father had been done to death.
(Emphasis supplied)
79. It is settled law that evidence of a child witness must be evaluated more carefully with grater circumspection. In the present case the testimony of PW3 stands corroborated by the medical evidence led by the prosecution, which has proved beyond reasonable doubt that the deceased died of asphyxia consequent upon manual strangulation. No ligature marks were found on the neck of the deceased, which rules out suicidal hanging or ligature strangulation and all the injuries mentioned in Ex.PW11/A are concurrent with the hypothesis of manual strangulation put forth by the prosecution. The fracture of cornu hyoid bone shown in post-mortem report is a typical feature found in Page 58 of 63 strangulation. PW3 deposed that his mother accused Salma had held his father by legs, while accused Sohail, was sitting on the chest of his father and throttling him. Injury no. (11) Crescentic abrasions present over right side of knee, 1 X 0.2 cm shown in Ex.PW11/A corroborates the testimony of PW3 that deceased was held by his legs at the time of incident.
The injury is ante-mortem and would not be possible in case of suicidal hanging.
80. The presence of accused Salma has been admitted by the Defence at the scene of crime. It is true that there are minor contradictions in the testimony of the witness as the witness stated that after being strangulated his father alongwith the accused persons namely Salma and Sohail and Gudiya went outside, however on the query of the court clarified that only Accused Salma and Sohail went outside alongwith Gudiya. Further after stating that his father alongwith the accused persons namely Salma and Sohail and Gudiya went outside, the witness further stated that he saw from window accused persons Salma and Sohail alongwith Gudiya talking outside and does not name his father being present there. Further after initially refusing to identify the accused Sohail in the Court, the witness identified him as the person who strangulated his death and on being inquired by the court as to why he did not identify the accused earlier, replied that he did not identify accused Sohail as he got scared on seeing him in the court. In this regard the demeanour of witness as reflected from his testimony is important.
Page 59 of 63The witness took a pause and then nodded his head in affirmative after repeatedly asked by the Ld. APP, whether accused Sohail is the person, who strangulated is father. Further after sometime, the support person informed the court that the witness is not feeling comfortable and is nervous and a 15- minute break was granted by the Court. Thereafter when the matter resumed, on the request of the support person, the further examination of the witness was deferred for next day as the court was informed that witness was not feeling comfortable. PW3 was aged around 11 years at the time of his testimony and it is not abnormal or strange for a child of getting scared and nervous on seeing the accused in the Court for the first time after the incident. The fact that the testimony of the witness was deferred at the request of the support person for next day as the witness started feeling nervous and uncomfortable is consistent with the clarification provided by the witness that he got scared on seeing accused Sohail in the Court. The identification of Sohail by PW3 as the person who strangulated his deceased further stand corroborated by the testimony of PW1, who deposed that she had seen the accused Sohail going to the house of the deceased in the evening of 05.01.14. Further PW3 also deposed during his testimony in court that Gudiya was present at the time of incident and she tried to pull the accused Sohail, who was strangulating the deceased. Accused Salma has admitted the presence of Gudiya in her testimony as Page 60 of 63 DW1 and defence even called Gudiya as Defence Witness however later Defence chose not to examine her as witness. Witness was cross-examined at length by the defence counsel, however the witness maintained that accused Sohail strangulated the deceased while accused Salma held the deceased by his legs. Court finds that the testimony of PW3 has remained uncontroverted and unrebutted and is corroborated by the medical evidence and the testimony of other prosecution witnesses. There are not embellishment or improvement in the deposition, though presence of Gudiya was not disclosed in 164 statement, however the witness merely cite Guida's presence at the time of incident and does not implicate him rather he deposed that Gudiya was trying to pull away the accused Sohail from the deceased. The court does not find any traces of tutoring in the testimony of PW3. The deposition of PW3 is natural and reliable and has stood the test of cross- examination.
81. Accused Salma deposed as DW1 and maintained that the deceased committed suicide and PW1 with a view to usurp the property purchased by the deceased in her name and the money handed over by the accused Salma to PW1 has falsely implicated her and has also tutored the PW3 to depose falsely against her. She denied having an affair with accused Sohail and also denied the presence of the accused Sohail at her house on the day of incident. In her cross-examination, DW1 stated that she had very good relations with her Page 61 of 63 husband and that she is not aware of any reason due to which her husband to committed suicide. The testimony of the witness stands demolished by the medical evidence, which has proved beyond reasonable doubt that it is a case of culpable homicide and the deceased died of asphyxia consequent upon manual strangulation. Further the testimony of PW3, who is an eyewitness of the incident, which stand corroborated by the medical evidence and testimony of PW1 also shows that the deceased did not commit suicide and was strangulated by the accused persons.
82. Looking at the overall evidence on record, the court is of the considered opinion that the prosecution has proved beyond reasonable doubt that on the intervening night of 05.01.2014-06.01.2014, accused Salma and Sohail in furtherance of common intention caused the death of deceased Asir Ahmad. Accused Salma held the legs of the deceased, while accused Sohail strangulated the deceased Asir Ahmad, who died of asphyxia consequent of manual strangulation.
83. From the facts proved by the prosecution, it is established that both the accused persons entered into criminal conspiracy to cause the death of deceased Asir Ahmad. PW1 has deposed that she saw accused Sohail entering the house of deceased on 05.01.2014. PW1 and PW6 has deposed that accused Sohail and Salma were having an affair. PW3 has proved that the accused Sohail strangulated the deceased while accused Salma held the deceased by his legs, which shows the physical manifestation of the Page 62 of 63 agreement between the accused persons namely Salma and Sohail, who in furtherance of common intention caused the death of deceased Asir Ahmad.
84. The prosecution has proved beyond reasonable doubts that accused Sohail and accused Salma have committed the offences under Section 302/34 IPC and section 120B IPC.
85. Accordingly, accused Sohail and accused Salma are convicted for the offence under Section Section 302/34 IPC and section 120B IPC
86. Copy of the judgment be provided to the accused persons free of cost against due acknowledgment.
87. Let accused persons be heard on point of sentence. Announced in the open court on this 21th Day of September, 2024.
Digitally signed byALOK ALOK SHUKLA SHUKLA Date: 2024.09.21 16:17:30 +0530 (Alok Shukla) Additional Session Judge-2/ Special Judge (Narcotic Drugs And Psychotropic Substances) East/Karkardooma/Delhi/21.09.2024 Page 63 of 63