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[Cites 15, Cited by 0]

Delhi District Court

State vs . Akhilesh & Ors. ­ Sc No. 27 Of 2010 1/35 on 28 July, 2012

                                                                                    Unique ID No. 02406R0221352011 



                      IN THE COURT OF SH. VINAY KUMAR KHANNA, 
                      ADDITIONAL SESSIONS JUDGE­04 (SOUTH EAST)
                              SAKET COURTS: NEW DELHI

Sessions Case No.  27/2010
Unique ID No. 02403R0965532008   
                                                                FIR No. 443/2008 
                                                                U/s. 302/364 r/w 34 IPC
                                                                PS :  Badarpur
State    

Versus 

Akhilesh,  
S/o Sh. Hem Singh, 
R/o Village Barwara, District Hardoi,
Thana Pasdura, UP.                                                      ..........Accused No. 1

Anita,
w/o Sh. Munnider Singh, 
R/o Village Gangawar, District Nadia,
PS Aamghata, West Bengal.                                               ..........Accused No. 2

Instituted on : 16th February, 2009
Argued on : 25th July, 2012
Decided on : 28th July, 2012 
                                                J U D G M E N T

Case of prosecution At 11:00 pm, on 14.09.2008, Chotte Singh s/o Sh. Jaiveer Singh visited Police Station Badarpur and lodged a report. DD No. 80­B (Ex.PW2/A) was recorded. Complainant Chotte Singh reported that his sister Smt. Meena Kumari (deceased) w/o Akhilesh (A­1) r/o Gali No. 10, Hari Nagar, Part­II was residing with her family. He could not telephonically contact her sister. He came to her State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010 1/35 Unique ID No. 02406R0221352011 matrimonial home on 12.09.2008, where her sister was not found. Complainant made inquiries from her husband Akhilesh (A­1), who told him, that he did not know whereabouts of Meena Kumari (deceased) and she had gone away with her luggage without telling him anything. On the next day i.e. 15.09.2008, Assistant Sub­Inspector Mahender Singh recorded statement (Ex.PW2/B) of complainant Chotte Singh and made an endorsement thereon. On the basis of the statement of Chotte Singh, FIR No.443/08 (Ex.PW10/A) u/s 364/34 IPC vide DD No. 34­A was recorded at 08:35 PM on 15.09.2008 at Police Station Badarpur.

2. In his complaint dated 15.09.2008, Chotte Singh stated that his sister Meena Kumari was married with Akhilesh (A­1) 15 years ago and two children were born out of their wedlock namely son Aakash @ Sonu and daughter Jyoti. His sister was residing with her husband at Village Aali, Delhi for the last about 10 years. He stated that about one year ago Akhilesh (A­1) kept another women named Anita (A­2) and they were residing as husband and wife. His sister Meena (deceased) was sent by Akhilesh (A­1) to the Village. About 15 days ago, a quarrel took place between her deceased sister and her father­in­law. His sister (deceased) informed Akhilesh (A­1), who called him at Delhi. Her sister alongwith her son Aakash @ Sonu came to Delhi and daughter Jyoti was taken away by the sister of Akhilesh (A­1). After her sister (deceased) came to Delhi, Akhilesh (A­1) and Anita (A­2) used to quarrel with her. They used to ask her sister (deceased) to go to village. Complainant stated that all these facts were telephonically informed to him by her sister (deceased) because she used to telephonically talk to him. When he did not receive any telephonic call for two­three days, then, complainant asked Akhilesh (A­1) to arrange his conversation with his sister, whereupon Akhilesh (A­1) told State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010 2/35 Unique ID No. 02406R0221352011 him that she was not present at home. He telephonically called Akhilesh (A­1) two­ three times, but Akhilesh (A­1) gave no satisfactory answer. Thereafter, complainant talked to Dinesh, brother of Akhilesh (A­1), who told complainant that on 06.02.2008 Akhilesh had shifted his residence from Village Aali to Hari Nagar, E­Block, Gali No.10 at the house of Satish. Dinesh further told complainant that Akhilesh (A­1) had informed him that Meena (deceased) had ran away from the house after taking her luggage. Complainant (Chotte Singh) and his brothers Dhirender and Vikas came to Delhi on 12.09.2008. After reaching Delhi, they made a telephonic call to Akhilesh (A­1), but he did not disclose his whereabouts. He inquired from Dinesh, who also did not inform about Akhilesh (A­1). Then, Akhilesh (A­1) was called from the company, where he used to work. He did not tell anything about his wife. They went to the Hari Nagar house of Akhilesh (A­1), where Anita (A­2) and his nephew Aakash met them, but his sister (deceased) was not found. Complainant inquired from Akhilesh (A­1) and Anita (A­2) again and again about his sister, but no satisfactory answer was given by them and thereafter, on 14.09.2008, complainant lodged a missing report of his sister Meena (deceased). Complainant suspected that his sister Meena (deceased) was killed by Akhilesh (A­1) and his mistress Anita (A­2).

3. IO/ASI Mahender Singh recorded statements of other witnesses and site plan of the place of occurrence was prepared. On 15.09.2008, accused persons were arrested and their disclosure statements were recorded. Pursuant to the disclosure statements of both the accused persons three broken pieces of glass bangle were recovered on 16.09.2008. On 17.09.2008, Section 302 IPC was added and the investigation was handed over to Inspector Rajmal Meena. Police custody of State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010 3/35 Unique ID No. 02406R0221352011 accused Akhilesh and Anita was obtained on 18.09.2008 and further disclosure statement of Anita (A­2) was recorded, who got recovered one 'payal' belonging to her, from the place of occurrence and other and one hand written letter was recovered from house at E­59, Gali No.10, E­Block, Hari Nagar, Part­II, Badarpur. It is further the case of prosecution that the aforesaid letter was got written by Anita (A­2) from her acquaintance Sh. Laxmi Narayan (PW­4). On 19.09.2008, statement of Akash @ Sonu u/s 164 Cr.P.C. was not recorded. Efforts were made to search the dead body of Meena (deceased) from the Agra Neher, but it was not found. During investigation, Sub­Inspector Mahesh Kumar Draftsman prepared scaled site plan. On conclusion of investigation, charge sheet was filed in the Court of Metropolitan Magistrate on 12.12.2008.

Charges

4. Case was committed to the Court of Sessions by the Learned Metropolitan Magistrate on 03.02.2009. On 21.05.2009, Learned Predecessor of this Court framed charges against the accused persons u/s 120­B IPC and 302/120­ B/34 IPC. Accused persons pleaded not guilty and claimed trial.

5. The points which emerge for determination in this case are :

(i) Whether on or before 09.09.2008, accused Akhilesh (A­1) and Anita (A­2) entered into a criminal conspiracy to commit murder of Smt. Meena Kumar w/o Akhilesh (A­1)?
(ii) Whether at about 03:00 am, on the night of 09.09.2008 at Lohia Pul, Bardarpur where the water of NTPC falls, both the accused persons in pursuance of the conspiracy and/or in furtherance of their common intention pushed Smt.Meena Kumari into Agra canal and committed her murder?
State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010 4/35

Unique ID No. 02406R0221352011 Prosecution Evidence

6. In order to prove the case against the accused, prosecution examined eighteen witnesses. Gist of the prosecution witnesses is as under:

7. PW­1 Sh. Jitender Mishra, Metropolitan Magistrate, recorded statement of witness Master Akash @ Sonu u/s 164 Cr.P.C. (Ex.PW1/A) on the request of IO/Inspector Rajmal Meena.

8. PW­2 Chotte Singh, is complainant. He placed on record his missing report (Ex.PW2/A) dated 14.09.08. His complaint dated 15.09.2008 is Ex.PW2/B. He is a witness to the arrest memos (Ex.PW2/C and Ex.PW2/D) and disclosure statements (Ex.PW2/F and Ex.PW2/G) of accused Akhilesh (A­1) and Anita (A­2). He is a witness to the personal search memo (Ex.PW2/E) of accused Akhilesh (A­1) and he is also a witness to seizure memo cum pointing out (Ex.PW2/H) of broken bangles (P­1) and the seizure memo (Ex.PW2/I) of letter (Ex.PW4/A), disclosure statement of Anita (Ex.PW2/PX), two separate seizure memos (Ex.PW2/J and Ex.PW2/K) of payal (Ex.P2 and Ex.P3). He placed on record one photograph depicting accused Ahilesh (A­1) and Meena kumari (deceased), which is Ex.PW2/L and other two photographs (Ex.PW2/M and Ex.PW2/N) depicting Akhilesh (A­1) and Anita (A­2). Testimony of this witness is discussed in the later part.

9. PW­3 Master Aakash @ Sonu, is son of accused Akhilesh (A­1) and deceased Meena Kumari was her mother. He deposed that Anita (A­2) used to live with his parents at Hari Nagar. Anita (A­2) and his father (A­1) used to quarrel with his mother Meena and Anita (A­2) used to demand jewellery and money from his mother. He deposed that prior to the incident he, his mother and sister used to State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010 5/35 Unique ID No. 02406R0221352011 reside at Village Baruara. PW­3 deposed that he did not remember the month, but in the year 2008, his sister Jyoti did not come with his mother and they stayed at Hari Nagar. He stated that the day of the incident was 9 th, but he did not remember the month. His parents and Anita (A­2) were sleeping in the house. At about 02:00 am/ 03:00 am, he woke up and did not find his parents and Anita in the house. First of all he searched for his parents and Anita (A­2) in the house. Thereafter, he went outside the house towards the canal situated at a short distance from their house. He saw his parents and Anita (A­2) at the canal. They were quarreling with his mother. His father Akhilesh (A­1) and Anita (A­2) caught hold of his mother and pushed her in the canal. His mother scratched the face of his father Akhilesh (A­1). He saw the hands of his mother coming out of the water in the canal and wept bitterly. His father threatened him not to disclose this incident to anyone, otherwise, he would be thrown in the canal. He told this incident to his maternal uncle Chotte Singh. PW­3 deposed that he had shown the place of occurrence to police, who inquired from him about the incident and prepared the site plan at his instance. In the cross examination, PW­3 deposed that he had not seen the incident during which his mother was killed by his father. PW­3 stated that he had given statement in the Court on earlier occasion, when he appeared in the Court two years ago at the instance of his maternal uncle Chotte Singh and Meena uncle (Police Official). PW­3 was re­examined by Learned Addl. PP for the State. In re­examination, he deposed that at the time of incident he was at Baruara and again stated he was at Delhi. Now, he stated that he had seen the incident of pushing his mother in the canal by his father Akhilesh (A­1) and Anita aunty (A­2). He was further cross examined by Learned Defence Counsel. PW­3 deposed that his mama had lodged a State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010 6/35 Unique ID No. 02406R0221352011 missing complaint of his mother in his absence. He voluntarily stated that he was in the other room at Village Aali. PW­3 stated that he had gone to canal thinking that they might have gone to the same place. He admitted that since the day of incident till date he was residing with his maternal uncle.

10. PW­4, Sh. Laxmi Narayan, deposed that Anita (A­2) used to work with him in factory at B­1/B­23, Mohan Cooperative Industrial Area, New Delhi. He deposed that Anita (A­2) had worked for seven­eight months in the factory and thereafter, she left the job. On 13.09.2008, Akhilesh (A­1) made a telephone call at his mobile phone and asked him to reach at Rajiv Gandhi Park near Police Station Badarpur. He reached there at about 06:00 pm and met Akhilesh (A­1) and Anita (A­2). They asked him to write a letter as they did not know, how to write and Anita (A­2) dictated him a letter. He identified letter (Ex.PW4/A) written by him on 13.09.2008. He identified signature of Anita (A­2) on the letter. PW­4 deposed that during dictation of letter, Anita (A­2) told him that her jewellery and money was taken away by Meena (deceased) and she demanded Meena (deceased) to return the same and Anita (A­2) further dictated that she had pushed Meena into the river near Hari Nagar, Badarpur and confessed her guilt in the letter. He deposed that police met him and recorded his statement.

11. PW­5 Vikas Kumar, is the brother of the complainant Chotte Singh. He deposed that his sister Meena (deceased) was married with Akhilesh (A­1) eight­ten years prior to her death. Initially, Akhilesh (A­1) kept her at his native village and later on brought her to Delhi at Aali Gaon, Badarpur. He deposed that initially he treated his deceased sister well, but later on he kept Anita (A­2) as his concubine. He stated that Akhilesh (A­1) had sent his sister to village at about one State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010 7/35 Unique ID No. 02406R0221352011 year prior to her death and she was residing in her village alongwith her two children. Father of Akhilesh (A­1) quarreled with her, therefore, she came back to Delhi alongwith her son Aakash @ Sonu on 27.08.2008. Her sister started living at Aali Gaon, Badarpur and after two days Akhilesh (A­1) shifted to Hari Nagar, Meethapur. His younger brother Chotte Singh used to talk on telephone with her sister Meena, when she started living at Delhi. He stated that his brother Chotte Singh received a telephonic call from Dinesh, brother of Akhilesh, who informed them that their sister had disappeared and asked them to come and inquire about the same. PW­5, alongwith Chotte (PW­2) and Dhirender (PW­15) came to Delhi from their native place Kakora. On reaching at Ali Gaon Delhi, they found that Akhilesh (A­1) had changed his address. They went to Aali Gaon at the place where Akhilesh (A­1) was working and met him, Akhilesh (A­1) told them that Meena (deceased) was missing. They went to the Police Station Badarpur and lodged a missing report of his sister.

12. PW­6, Sub­Inspector Mahesh Kumar, Draftsman Crime Branch. On request of IO/Inspector Rajmal Meena (PW­18), visited the alleged place of occurrence i.e. water fall NTPC, Badarpur alongside Agra Canal, where at the instance of ASI Mahender Singh, he took measurements and prepared rough notes and scaled site plan (Ex.PW6/A).

13. PW­7, Constable Soni Kumari, joined the investigation alongwith IO/ASI Mahender Singh on 15.09.2008. She is a witness to the arrest memo (Ex.PW2/D) and personal search memo (Ex.PW5/A) pertaining to accused Anita, her disclosure statement (Ex.PW2/G), seizure memo (Ex.PW2/H) of broken glass bangles (P­1) recovered from Agra Canal at the instance of accused. PW­7 deposed State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010 8/35 Unique ID No. 02406R0221352011 that she reached at the house of accused Anita (A­2) at E­59, Gali No. 10, Hari Nagar, part II and a letter was recovered at her instance, which was seized vide memo (Ex.PW 2/I). She is a witness to the recovery of letter (Ex.PW2/A).

14. PW­8, Constable Devraj Sharma. He joined investigation with the IO on 18.09.2008. He is a witness to the recovery of silver payal (Ex.P­2) from the place of occurrence vide seizure memo Ex.PW2/K and other payal (Ex.P­3) seized from a Almirah at house No. E­59, Gali No. 10, E­Block, Hari Nagar, Part­II, Badarpur vide seizure memo Ex.PW2/J.

15. PW­9, W/Constable Urmila. She joined the investigation with the IO on 18.09.2008. She is a witness to the silver payal (Ex.P­2), recovered from the place of occurrence vide seizure memo Ex.PW2/K and other payal (Ex.P­3) seized from the Almirah at house No. E­59, Gali No. 10, E­Block, Hari Nagar, Part­II, Badarpur vide seizure memo Ex.PW2/J.

16. PW­10, Head Constable Rajinder Kumar, Duty Officer at Police Station Badarpur. PW­10 deposed that he received a rukka at 08:30 pm from ASI Mahender Singh and on its basis recorded FIR (Ex.PW10/A) on 15.09.2008. He made endorsement (Ex.PW10/B). After registration of the FIR, its copy alongwith rukka were handed over to Constable Mohd. Aslam for delivering the same to IO/ASI Mahender Singh.

17. PW­11, Head Constable Omkar Mal, Duty Officer recorded DD Entry No. 80­B dated 14.09.2008 regarding missing of Smt. Meena Devi (deceased), which is Ex.PW2/A.

18. PW­12, Sh. Satish Kumar Sharma, landlord of House No. E­59, Gali No. 10, Hari Nagar, Part­II, New Delhi, deposed that on 07.09.2008, Akhilesh State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010 9/35 Unique ID No. 02406R0221352011 Kumar (A­1), his wife alongwith two children had come to their house. His mother kept Akhilesh (A­1) and his family as tenant with respect to one room at the ground floor. About four­five days thereafter, he saw one more lady in his room apart from Akhilesh (A­1) and his wife and saw that Akhilesh (A­1) was quarreling with his wife. On seeing the quarrel, he told Akhilesh Kumar (A­1) to vacate the tenanted premises as he would not keep a quarrelsome person as tenant. Akhilesh (A­1) told him that his wife and the other lady, who was working with him in the factory was also kept by him and they used to quarrel with each other on the ground that they were not willing to live together under the same roof and desired to live separately. PW­12 further stated that on 14.09.2008, one Chotte, brother­in­law of Akhilesh (A­1) came there and he saw him weeping. On asking, as to what was the matter, Chotte told him that whereabouts of his sister were not known. He accompanied him to the Police Station to lodge a report. On the next day, Chotte told him that his sister had been killed by Akhilesh (A­1) in connivance with other lady. One police official came to their house, after about two­three days police locked the tenanted room let out to Akhilesh (A­1). From the police, he came to know that sister of Chotte had expired. Later on, he moved an application before the Metropolitan Magistrate for opening of the lock of the room. PW­12 deposed that on 14.09.2008, before he had accompanied Chotte to the Police Station, Chotte made a telephonic call from his mobile phone to Akhilesh (A­1). He asked him that his relatives i.e Chotte and his younger brothers had come at the tenanted house and inquired about his wife. He did not give any satisfactory answer. On asking, where he was, he told PW­12 that he would come and thereafter, he disconnected the phone.

19. PW­13, Constable Aslam, deposed that on 15.09.2008, he was present State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010 10/35 Unique ID No. 02406R0221352011 at the Police Station. Duty Officer gave him copy of FIR along with original rukka for handing over the same to IO/ASI Mahender Singh. He alongwith lady constable Ms. Soni took it at House No.59, Gali No.10, Hari Nagar Extension, Badarpur, where he handed over both the documents to the IO/ASI Mahender Singh. PW­13 is a witness to the arrest memos (Ex.PW2/C & Ex.PW2/D) of Akhilesh and Anita, personal search memo (Ex.PW2/E) of accused Akhilesh, disclosure statements (Ex.PW2/F & Ex.PW2/G). He is witness to the seizure memo­cum­pointing out memo (Ex.PW2/H) and seizure memo of letter (Ex/PW2/I).

20. Sh. Ranbir (PW­14), photographer, deposed that, at the instance of the police officials, at about 10:00/11:00 AM, he reached near Lohia Pul, Agra Nehar and took photographs (Ex.PW5/D­10, Ex.PW5/D­9, Ex.PW5/D­11, Ex.PW14/A and Ex.PW14/B). PW­14 deposed that he prepared a CD (Ex.PW14/C) which contained copy of the photographs. He took photographs with digital camera.

21. Sh. Dhirender (PW­15), is brother of the deceased. He deposed that his sister Meena Kumari got married with accused Akhilesh (A­1) more than 15 years ago and accused Akhilesh had kept another women therefore, relations between them were strained. He came to Delhi with his brother Chotte Singh, after they came to know from Dinesh, brother of accused Akhilesh, that the whereabouts of their sister were not known and that she ran away after taking her luggage and money. He deposed the he did not know what happened to his sister. She could not be traced. He went to the Police Station alongwith his brother Chotte, Adesh and accused Akhilesh (A­1) to lodge a report. PW­15 deposed that he did not know anything about incident and did not know what was the cause of death of his sister. 

State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010                                                      11/35
                                                                                Unique ID No. 02406R0221352011

22. Sub­Inspector Mahender Singh (PW­16), was the IO, who initially investigated the case. He made endorsement (Ex.PW16/A) on the statement of Chotte Singh. He got FIR (Ex.PW10/A) registered. He is witness to arrest memos of accused Akhilesh (Ex.PW2/C) and accused Anita (Ex.PW2/D), personal search memo of accused Akhilesh (Ex.PW2/E), disclosure statements of accused Akhilesh (Ex.PW2/F) and accused Anita (Ex.PW2/G), seizure memo of broken pieces of bangle (Ex.PW2/H), photographs (Ex.PW14/A, Ex.PW14/B, Ex.PW5/D­9, Ex.PW5/D­10 and Ex.PW5/D­11), letter (Ex.PW4/A) and site plan (Ex.PW6/DA).

23. Sh. Sunil Kumar (PW­17), deposed that in the year, 2008, he was residing at the ground floor as tenant at House No. 59, Gali No. 10, Hari Nagar, Part­II belonging to Satish. He deposed that apart from him, Santosh, the brother of the landlord was residing in the adjoining room at the ground floor. PW­17 deposed that one other tenant was residing at the first floor, but he did not know his name. He did not know how many family members, tenant was having. Police did not make any inquiry from him and did not record his statement. He was cross examined by Learned Addl. PP. He denied all the suggestions put to him. In the cross examination, PW­17 deposed that he could not identify the accused persons.

24. Inspector Rajmal Meena (PW­18), investigated the case, after addition of Section 302 IPC. He prepared seizure memo of the payal recovered at the instance of the accused vide seizure memo Ex.PW2/J and other payal stated to be recovered from the house at E­59, Gali No. 10, Hari Nagar, Part­II vide memo Ex.PW2/K. He moved an application to the concerned Court for recording statement of Master Aakash u/s 164 Cr.P.C. On conclusion of investigation, PW­18 filed charge sheet in the Court. 

State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010                                                           12/35
                                                                              Unique ID No. 02406R0221352011 



Statement of accused

25. On conclusion of prosecution evidence, statement of accused persons were recorded u/s 313 Cr.P.C. Accused persons pleaded innocence and false implication. Accused Akhilesh has not disputed that the deceased Meena Kumari was his wife. He stated that after his marriage with Meena Kumari on 21.06.1999, she used to visit him before the birth of their children for a few days only. She was residing at Village Barwara of District Shahjhanpur in the matrimonial home. She frequently used to visit her parent's home at Buddi Nangla, District Shahjanpur, UP. He was working at M/s. Shilpi Cable, situated at 358, Aali Gaon and was residing in a rented Jhuggi at Tukhlakabad, since more than two years prior to the alleged incident. He visited Village Barwara at his parents home in March, 2008. At that time Meena Kumari was present there with their two children. He had not met Meena Kumari since March, 2008. He used to telephonically talk on mobile phone with his father. His wife was not keeping any concern with him for the last three years and he was not on talking terms with him and she used to keep away from him on even in March, 2008, when he visited Village Barwara his father's home. They had not co­habited with each other. She was always interested in going to the house of Narinder @ Lalu (his brother­in­law, saadu) and her elder sister at Kakoda, situated at a distance of one kilometer from Buddi Nangla, his in laws house. He had come to know that in his absence, Narinder @ Lalu used to visit their house. She also used to visit their house. He suspected that Meena Kumari had illicit relation with Narinder @ Lalu. His father was a drunkard. Accused Akhilesh stated that he had no conversation with his wife Meena Kumari (deceased) since March, 2008. He did not know the whereabouts of his wife Meena Kumari State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010 13/35 Unique ID No. 02406R0221352011 (deceased). When he was in Police Custody, his brother Dinesh told him that 10­15 days after the Holi Festival, his wife Meena Kumari (deceased) left matrimonial home at Village Barwara and had gone alongwith Narinder @ Lalu and her children. Thereafter, she had not returned to Village Barwara or at Delhi. She had not resided with him at Delhi or anyplace at anytime after March, 2008. He stated that he had not seen her or met with her after March, 2008.

26. Accused Anita (A­2) in her statement stated that she was working in a factory where Laxmi Narayan (PW­4) was her supervisor. She stated that because of his bad conduct, she left her job. She did not know any Meena Kumari (deceased). She had never met her and was residing at Aali Gaon alone. Laxmi Narayan started visiting his residence. He started harassing her and attempted to out rage her modesty and black mailing and exploiting her. As, she had failed to comply with the wishes of Laxmi Narayan, he falsely implicated her in this case in connivance with the police. Anita stated that she was called to the Police Station on 15.09.2008 and was arrested there. She knew Akhilesh by face as he sometime used to visit the factory, where she was working and used to meet Laxmi Narayan. Anita stated that she had not disclosed any thing to Laxmi Narayan, who allegedly wrote letter (Ex.PW4/A) of his own, in connivance with the police and her both payals were taken away by the Police from her residence. Her payal was not recovered from the place of incident. When she was arrested by the police, IO told her that Chotte Singh and his other relatives had resided at her residence. Photographs (Ex.PW2/M and Ex.PW2/N) were taken at the Police Station by a photographer called by Police. Defence Evidence

27. In support of his case, Akhilesh (A­1) produced five defence witness: 

State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010                                                          14/35
                                                                                 Unique ID No. 02406R0221352011

28. DW­1 Sh. Dinesh Kumar, brother of the accused Akhilesh (A­1), deposed that in the month of April 2008, he was living in his village Baruara and helping his father in the cultivation and during that time, his deceased Bhabhi Meena Kumari ran away with Narender @ Lalu alongwith her children alongwith all jewellery, from his home. He informed about this on telephone to her brother Chotte Singh. A panchayat took place at their instance in the village of Chotte Singh and the elderly person of the Rajput Biradari assembled there. A decision was taken that Chotte Singh should bring his sister to her matrimonial home, but Meena Kumari refused to come back and joined matrimonial home. Police informed them that his brother Akhilesh Singh had been arrested and then he came to Delhi and in the police station, he came to know that his brother was arrested on the charges of alleged murder of his wife. He told IO that his wife was still living with Narender @ lalu in village Kakora. After this incident, they were insulted in the biradari and thus, his father left the village and went somewhere.

29. DW­2 Sh. Pawan Kumar, deposed that he was living alongwith his family and children at Tughlakabad since 2004. DW­2 deposed that he knew accused Akhilesh (A­1) because he was his next door neighbour in Tughlakabad Jhuggis. Accused Akhilesh (A­1) came there as a tenant in his neighbourhood in around 2006. His family was living in a village. Accused Akhilesh (A­1) had gone to his village in the year 2008 as well on the occasion of Holi. On the day of his arrest, he did not turned up, then he made him a telephonic call about his whereabouts. He was informed that he has been detained in the Police Station Badarpur. Thereafter, he went to see him in the Police Station Badarpur, there, he came to know that he had been arrested in a murder case. 

State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010                                                            15/35
                                                                             Unique ID No. 02406R0221352011

30. DW­3 Sh. Rishi Pal, deposed that he knew accused Akhilesh (A­1) because he belonged to the same area. He stated that after Meena Kumari (deceased) ran away with Narender @ Lalu, then a panchayat took place in the village of Chotte Singh and the matter was brought before panchayat and panchayat put pressure on Chotte Singh to take back his sister from the custody of Narender @ Lallu but he did not agree. Thereafter, they went to the Police Station, but she did not come back. Police informed them that she was a major and they could not bring her by force. He stated that after the panchayat, he had seen Meena Kumari with Narender @ Lallu in village Kakora. DW­3 stated that he could not say where Narender @ lallu and Meena were living together because since then, they were not seen by him in the village.

31. DW­4 Sh. Virender Singh, deposed that after Meena Kumari had run away with Narender @ Lalu r/o village Kakora and a panchayat was held and he was also one of the member of Panchayat, which was held in September 2008. It was decided that Meena Kumari should be brought back in her matrimonial home, but Chotte Singh his brother did not agree to it. Thereafter, few Panchs visited the house of Narender @ Lalu and there, they found that Meena Kumari was present in the house of Narender @ Lalu. They sought to take help from the police, but the police did not intervene. In cross examination by Learned Addl. PP for the state, DW­4 deposed that the panchayat members had asked Chotte Singh to send Meena Kumari to Baruara. He refused to send Meena Kumari to Baruara. In September, 2008, he had visited at the village Kakora where he met Narender @ Lalu and Meena Kumari (deceased). He could not tell the date when he visited village Kakora with Sohan Pal, Rishi Pal and Dhayan Pal. DW­4 stated that the wife of State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010 16/35 Unique ID No. 02406R0221352011 Narender @ Lalu had already expired. Meena Kumari refused to accompany them to come back to her matrimonial house at village Baruara.

32. DW­5 Sh. Sohan Pal, deposed that Meena Kumari had ran away with Narender @ Lalu r/o village Kakora in April 2008 and a panchayat was held. He was one of the member of Panchayat held in first week of September 2008, wherein it was decided that Meena Kumari should be brought back in her matrimonial home, but Chotte Singh did not agree to it. Thereafter, few Panchs visited the house of Narender @ Lalu and found that Meena Kumari was present in the house of Narender @ Lalu. They sought to take the help from the police and SHO sent the police constable, but Meena Kumari did not come. DW­5 deposed that he had no relation with Akhilesh and even, he did not know accused Akhilesh. DW­5 stated that village Bhuri was near his village. In cross examination, DW­5 deposed that Chotte had called Narender @ Lalu, but he did not respond and panchayat did not call Narender @ Lalu. Panchayat decided to hand over Meena Kumari to Akhilesh. Members of the panchayat had gone to village Kakora including he himself. He talked to Narender @ Lalu and asked him to send Meena Kumari to his matrimonial home. Meena Kumari refused to return back to her matrimonial home. Meena kumari did not explain any specific reason for not returning her matrimonial home and voluntarily wanted to live with Narender @ Lalu.

Submissions advanced

33. I have heard submissions advanced by Sh. Wasi Ur Rehman, Learned Addl. PP for the State and Sh. S. Q. Kasim, Learned counsel for the accused persons and have perused the record.

34. Learned Addl. PP for the state submits that indisputably, dead body of State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010 17/35 Unique ID No. 02406R0221352011 Smt.Meena Kumari (deceased) w/o Akhilesh (A­1) has not been recovered. He submits that it is the settle position of law that in a trial of murder, it is neither an absolutely necessity nor an essential ingredient to establish corpus delicti. In support, he referred Mani Kumar Thappa Vs. State of Sikkim, AIR 2002, SC 2920, wherein it was observed that "it is a well settled principle in law that in a trial for murder, it is neither an absolute necessity nor an essential ingredient to establish corpus delicti. The fact of the death of the deceased must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered. There are a number of possibilities where a dead body could be disposed of without trace, therefore, if the recovery of the dead body is to be held to be mandatory to convict an accused, in many a case the accused would manage to see that the dead body is destroyed which would afford the accused complete immunity from being held guilty or from being punished. What is therefore required in law to base a conviction for an offence of murder is that there should be reliable and plausible evidence that the offence of murder like any other fatum of death was committed and it must be proved by direct or circumstantial evidence albeit the dead body may not be trace".

35. Learned Addl. PP submits that there is no dispute that Meena Kumari (deceased) was the wife of accused Akhilesh Kumar (A­1). He submits that the case of the prosecution is based on direct as well as circumstantial evidence. PW­3 Aakash @ Sonu, minor son of Smt. Meena Kumari (deceased) and Akhilesh (A­1), is the eye­witness of the incident, who deposed that on the night of the incident his parents and Anita (A­2) were sleeping in the house. At about 02/03:00 am, when he woke up, he did not find his parents and Anita in the house. He went outside State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010 18/35 Unique ID No. 02406R0221352011 towards the canal and he saw his parents and Anita (A­2) at the canal, who were quarreling with his mother. PW­3 further stated that his father Akhilesh (A­1) and Anita (A­2) caught hold of his mother and pushed her in the canal. He deposed that his mother scratched the face of his father Akhilesh (A­1). PW­3 stated that Anita aunty (A­2) pulled his ear and his father Akhilesh (A­1) threatened him not to disclose this incident to anyone, otherwise, he would threw him in the canal. PW­3 stated that he narrated the incident to her maternal uncle Chotte Singh. He had shown the place of occurrence to the Police and the police prepared site plan at his instance. PW­3 identified both the accused A­1 and A­2 in the Court. Learned Addl. PP for the State argued that the aforesaid testimony of the child witness was recorded by the Court after satisfying itself that he was capable to understand and to answer them and therefore, the testimony of this witness is acceptable in the eyes of law and is sufficient to convict the accused. In support, Learned Addl. PP relied upon Baby Kandayanathil Vs. State of Kerala, 1993 CRI.L.J 2605, a case u/s 302 and 201/34 IPC, wherein Hon'ble Supreme Court observed that "the Learned Trial Judge has put preliminary questions to each of the witnesses and after satisfying that they were answering questions intelligently without any fear whatsoever, proceeded to record the evidence. In the chief examination, each of the witness has given all the details of occurrence. There has been searching cross examination and the witness with stood the same. We had also gone through the evidence and we do not see any reason to doubt their evidence. They are the most natural witnesses, who had been present in the house at the night time".

36. Learned Addl. PP referred Mangoo Vs. State of MP, 1995, CRI.L.J 1461, a case u/s 302 IPC. The case mainly rested on the evidence of Dev Dutta State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010 19/35 Unique ID No. 02406R0221352011 (PW­2), a boy aged about 16 years. The Trial Court acquitted all the four accused persons holding that the evidence of the sole witness PW­2 was not wholly reliable. Learned Trial Judge discarded his evidence on the ground that the medical evidence was in conflict and there was possibility of the witness having been tutored and there are certain discrepancies in material particulars in his evidence. In appeal preferred by the State, Hon'ble High Court held that the reasoning given by the Trial Court was wholly unsound and allowed the appeal by convicting all the four accused persons. In this case PW­2 was the son of the deceased. It was observed that the mere fact that PW­2 might have been taken by the police to be produced as witness was no ground to come to the conclusion that the witness must have been tutored, on examining the evidence and from the contents, we have to see whether there are any traces of tutoring. It was found that the version given by PW­2 appeared to be quite natural and there is ring of truth in the same. In the said case, the evidence of PW­1 corroborated the evidence of PW­2 to the extent that immediately after the occurrence PW­2 mentioned the name of the accused and the manner in which his father had been done to death. In these circumstances the appeal was dismissed.

37. Another case relied upon by the Learned Addl.PP is "A Venketeshwara Rao Vs. Public Prosecutor, A. P. High Court, 1995 CRI.L.J, 2633, a case u/s 302 IPC, wherein husband attacked and stabbed his wife. Son (PW­1) was an eye witness, although a boy aged 12 years. He deposed in a straight away manner about stabbing his mother by his father, the accused. His evidence was fully corroborated by the evidence of PW­2, also an eye­witness. PW­3 and PW­4 had come to the place of occurrence immediately after the incident, who had noticed State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010 20/35 Unique ID No. 02406R0221352011 that the accused was running away from the place. Deceased stated to the said witnesses that the accused had stabbed her, it was held that in the aforesaid circumstances, the prosecution case had been clearly established.

38. Learned Addl. PP submits that apart from the direct evidence of the son/child witness other circumstances, which have been proved are that the deceased was residing with her husband, Akhilesh (A­1) at E­59, Gali No. 10. Hari Nagar, Part­II, New Delhi at the relevant time and deceased was found missing, A­1 has failed to offer any satisfactory explanation as to when his wife (deceased) parted his company, recovery of incriminating articles i.e broken bangle pieces of deceased from the alleged place of occurrence and of payal (anklet) at the instance of the accused and Extra Judicial Confession made by the accused persons i.e. Akhilesh (A­1) and Anita (A­2) before Laxmi Narayan (PW­4) on 13.09.2008. The corroboration of Extra Judicial Confession of the accused in the from of a writing recorded by Sh. Laxmi Narayan (PW­4) on the dictation of accused Anita (A­2) and signed by accused Anita (A­2). In support Learned Addl. PP has referred Payara Singh & Ors. Vs. State of Punjab, 1977, 4 SCC 452, a case u/s 302 IPC Learned Trial Court had acquitted the accused. On appeal to the Hon'ble High Court by the State of Punjab, the Hon'ble High Court reversed the judgment and convicted the appellants. It was observed that Learned Sessions Judge, who regarded the Extra Judicial Confession to be a very weak type of evidence and therefore, refused to rely upon the same. Committed a clear error of law and law does not require that the evidence of an Extra Judicial Confession should in all cases be corroborated.

39. Learned Addl. PP for the State submits that from the plain reading of State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010 21/35 Unique ID No. 02406R0221352011 the examination in chief of the Defence Witnesses, nothing has emerged in favour of the accused as none of the defence witnesses have told the date on which the alleged panchayat was organised after deceased ran away from village Baruara. It is further submitted that none of the defence witnesses had stated as to by whom the said panchayat was called. Some of the defence witnesses have alleged that they had gone to the house of Narinder @ Lalu where they saw the Meena Kumari (deceased) residing with him, but Dinesh (DW­1) was not aware about the visit of the Panchayat members to the house of Nariender @ Lalu. He submits that evidence led by the defence is not convincing and is liable to be discarded.

40. On the other hand, Learned Defence Counsel submits that the prosecution story made out by the police as per the chargesheet U/s 173 Cr.P.C. in brief is that accused Akhilesh Kumar S/o Hem Singh was married to Meena Kumari about 10 years prior to the date of incident i.e. 09.09.2008. For around 10 years, alleged deceased Meena Kumari remained happily with the accused Akhilesh Kumar, her husband in Delhi, but one year prior to the incident, she had gone back to her matrimonial home at Village Baruara. As per report u/s 173 Cr.P.C, the deceased Meena Kumari had a quarrel with her father­in­law i.e. Hem Singh and she informed about the quarrel to her husband in Delhi and her husband Akhilesh Kumar asked her to come to Delhi and live with him, whereupon she left her matrimonial house and reached Delhi 15 days before her alleged death. As per the story of the prosecution, the deceased Meena Kumari alongwith her husband as well as the two children i.e. PW­3 and the daughter Jyoti started allegedly living in a house i.e. E­59, Gali No. 10, Hari Nagar, Part­II, New Delhi. After sometime another lady i.e. Anita (A­2) also joined the same roof in that one room and State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010 22/35 Unique ID No. 02406R0221352011 allegedly as per the story of the prosecution the deceased Meena did not like accused Anita coming in the same room and there was a fight between her and her husband and due to this accused Akhilesh wanted to finish the deceased Meena Kumari. Another part of prosecution story is that after Anita joined the roof of the above mentioned address of the room all the jewellery of Anita was alleged stolen by deceased Meena Kumari and Meena Kumari was reluctant to return the same and this act of deceased Meena Kumari propelled accused Anita to eliminate her. As per the case of prosecution, accused Akhilesh and his wife deceased Meena had gone to park at 03:00 AM of 09/10.09.2008 and after sometime he made a phone call to Anita about the quarrel. PW­3 Child, who was sleeping in the room did not find his parents, he became suspicious and went to the place of occurrence in the hope that parents must have gone there and the moment he reached there, he found that his father alongwith Anita pushed his mother into the canal.

41. Learned Defence Counsel submits that accused persons in their statement U/s 313 Cr.P.C. stated that they are innocent and had nothing to do with the alleged offence. They stated that both the accused persons have not lived together. Accused Akhilesh was living in Tughlakabad and accused Anita was residing at E­59, Gali No.10, Hari Nagar, Part­II, New Delhi. In support of his case, accused Akhilesh examined five defence witnesses. Learned Defence Counsel submits that PW­2 in his deposition before this court stated that he had reached Delhi on 06.09.2008 on receipt of information on telephone from Dinesh, younger brother of Akhilesh, the accused that "TUMHARI BEHEN SAARA ZEVAR PAISA LEKE BHAAG GAYI HAI" and stayed with one of his relatives at Shahadara. He submits that prosecution has failed to place on record any reason as State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010 23/35 Unique ID No. 02406R0221352011 to why Chotey Singh (PW­2) made no effort to talk to his sister on telephone, as it is his case that, he knew the phone number of his sister Meena and he used to talk to her on her telehphone. No reason is assigned that he should have not talked to his sister after reaching Delhi as in his deposition. Learned Defence Counsel submits that in the cross examination PW­2, deposed that the phone number 9711468197 which was feeded in his mobile as 'Meena Delhi'. He did not know to whom the telephone number belonged, on which his deceased sister talked to him four - five days prior to the incident. PW­2 admitted that during this existence of marriage of his sister with accused Akhilesh, his sister had never conveyed anything to him about Akhilesh.

42. Learned Defence Counsel further submits that on 09.09.2008, at about 03:00 am at Lohia Pul (where the water of NTPC falls) Badarpur, the accused persons in furtherance of the common intention pushed the sister of PW­2 into the river. As per the deposition of PW­2, he was in Delhi on 06.09.2008 and he talked to his sister four­five days prior to the incident, which means he talked to his sister either on 4th or on 5th and then when he came in Delhi, it could have been a reasonable action on the part of PW­2 immediately trace his sister, but he did not do so. As per his deposition, date of his reaching to Delhi was 06.09.2008, but later on he deposed that they all together come to Delhi on 12/09/2008. He submits that prosecution has failed to show that accused Anita and deceased Meena Kumari was residing together at the time of incident. Child witness Master Aakash @ Sonu (PW­3) is a tutored witness. If he knew about incident, there is no reason why missing report was lodged on 14.09.2008. All the fact allegedly stated by him are not stated therein, but only on 15.09.2008 suspicion was raised on accused. He State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010 24/35 Unique ID No. 02406R0221352011 argued that recovery of bangles after nine days of incident is full of doubt. Recovery of bangles and payal from the Park which is a public place and recovery of one payal and letter allegedly written by Laxmi Narayan (PW­4) from house No. E­59, Gali No. 10, Hari Nagar which was occupied by complainant and her brothers after the arrest of accused on 15.09.2008 is full of doubts. He submits that prosecution has miserably failed to establish its case.

Conclusions

43. Admittedly, the dead body of deceased Meena Kumari has not been recovered, therefore, no postmortem on the dead body could be conducted. There is no doubt that, it is not necessary that the dead body has to recovered to establish the case of the prosecution. Prosecution has to establish by adducing cogent evidence that the person for whose murder, accused are charged, has actually expired. This Court finds that the evidence in this regard, is not very satisfactory.

44. The testimony of complainant Chotte Singh (PW­2) shows contradictions in material particulars. In his examination in chief, PW­2 deposed that he came to Delhi alongwith his brother Vikas and Dhirender on 12.09.2008. In his cross examination, PW­2 deposed that he reached at Delhi on 06.09.2008, on receipt of information on telephone from Dinesh (DW­2), younger brother of accused Akhilesh and the information, which he received from Dinesh (DW­2) was that his sister had ran with money and jewellery. He thereafter, has reiterated that he reached Delhi on 06.09.2008 and stayed with one of his relatives at Shahdara. On 13.04.2011, he deposed that after he came to Delhi on 09th, he went to the factory of accused Akhilesh, where he was working at Aali Gaon. He asked Dinesh (DW­2) to call Akhilesh. Dinesh (DW­2) told him that he had gone away with Rs.30,000/­ and State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010 25/35 Unique ID No. 02406R0221352011 Jewelery about 4­5 days back. He informed the police at 100 number on 9 th itself. He further reiterated that he, his brother Dhirender and Vikas had come to Delhi on 9th. He deposed that on 10th he came to know through the persons of gali that Akash @ Sonu, Akhilesh and Meena were seen, going nearby the canal at about 12:00 midnight on 6th. PW­2 further deposed that he had received call of deceased Meena at his mobile number 9839612596. His deceased sister, Meena talked to him four­ five days prior to the incident and he had feeded phone number 9711468197 of 'Meena Delhi'. PW­2 deposed that he had not handed over any call details of his mobile phone to the IO. It has not been explained that if PW­2 had come to Delhi on 6th September, 2008 i.e. before the alleged incident on 09th September, 2008, then why he had not called his sister on telephone to know about her whereabouts. PW­2 has deposed that his deceased sister Meena had come from Village Baruara to Delhi on 6th and after she had come to Delhi, he had telephonically talked to his sister on two occasions, two­three days before the incident. At another place, PW­2 deposed that he talked to his sister on 12.09.2008. Complainant deposed that deceased had told him that she had come to Delhi and at the second time, she told him that her husband was asking to change the room and she told him that she was not willing to go to the other room at Meethapur Village near nehar. She told him that she was alright and had not made any other complaint to PW­2. On asking, PW­2 deposed that he did not remember, if he had told these facts to the Police.

45. These contradictions cannot be held to be minor. Firstly, it is not clear whether complainant came to Delhi on 6th, 9th or on 12th September, 2008. Admittedly, he had telephonically talked with Meena (deceased). The call detail record of the telephone of PW­2 and the deceased would have shown, whether they State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010 26/35 Unique ID No. 02406R0221352011 had actually talked or not. Evidence of the complainant shows that the deceased was not willing to accompany the accused persons at the other place i.e. Hari Nagar, where he wanted to shift and significantly, she had not made any other complaint to her brother (PW­2), soon before the alleged incident on 09th, September, 2008. This evidence indicates that the deceased was not willing to join her husband at Hari Nagar.

46. Now, I advert to the testimony of the child witness Master Aakash @ Sonu. In examination in chief, Master Aakash @ Sonu (PW3) has supported the case of prosecution, but in the cross examination he totally resiled from his statement. Perusal of record shows that the testimony of Master Aakash @ Sonu (PW­3) has traces of tutoring. In the cross examination, he admitted that Chotte Singh had slapped him in the Police Station. PW­3 admitted that when his father accused Akhilesh had objected to the beating being given to him by Chotte Singh, the police wala i.e. Meena uncle abused him in a filthy language. He categorically deposed that he had not seen the incident during which his mother had expired. PW­3 deposed that his Mama Chotte Singh had told him that his mother was killed by his father. He deposed that he had given statement in the Court, on earlier occasion when he appeared in the Court, at the instance of his Mama Chotte Singh and Meena Uncle (Police official). He was re­examined by the Learned Addl. PP for the State. PW­3 was specifically questioned that on the earlier date, he had stated that he witnessed the incident dated 12.09.2008 and stated that at about 2:00/3:00 am, when he woke up, he did not find his parents and Anita in the house. First of all, he searched for his parents and Anita in the house and thereafter, he went outside the house towards the canal. He saw his parents and Anita at the canal and State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010 27/35 Unique ID No. 02406R0221352011 they were quarreling with his mother. His father and Anita caught hold his mother and they pushed his mother in the canal. His mother scratched the face of his father. Later on PW­3 deposed that he was not in Delhi at that time and was at Baruara at the house of his grandfather. Thereafter, he again stated that he was at Delhi and had seen the incident. He admitted that since the date of incident till date, he was residing with his maternal uncle Chotte Singh. Evidence indicates that he was under

the influence of and tutored by complainant (PW­2). Neither Vikas (PW­5) nor Dhirender (PW­15), who accompanied complainant (PW­2) have uttered anything, what was told to them by the child witness Aakash @ Sonu. PW­15 deposed that he did not know anything about the incident.

47. In the initial complaint, recorded vide DD No. 80­B (Ex.PW2/A) dated 14.09.2008 complainant has not at all mentioned this fact, as to how the incident had happened or what was told to him by Master Aakash @ Sonu (PW­3). PW­2 deposed that he met his Bhanja Aakash @ Sonu in the evening after reaching Delhi, who narrated him about the incident. Thereafter, PW­2 stated that when he came to know from his Bhanja about the incident, then he lodged a complaint on 15.09.2008. It has already noticed above that has not been established the date on which Chotte Singh came to Delhi whether it was 6th September, 2008, 09th September, 2008 or 12th September, 2008. Court is left to guess contradictions regarding date are material. According to the complainant his Bhanja, who appeared as PW­3 had narrated him about the incident. If that was so, there was no reason why this fact is not mentioned in the initial complaint lodged on 14.09.2008 vide DD No. 80­B. The said complaint only reports regarding the fact of 'missing of his sister' and gives the description of deceased. Even, if it assumed for the sake of State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010 28/35 Unique ID No. 02406R0221352011 argument that complainant had come to Delhi on 12th September, 2008 as mentioned in the complaint (Ex.PW2/B), still it is not clear as to why all the facts which had been narrated to him by the child witness, were not reported to the police. It has come in evidence that Master Aakash @ Sonu (PW­3) was in custody of Chotte Singh after police had apprehended accused Akhilesh, father of the child on 15.09.2008 at 11:00 PM. These facts clearly indicate that Master Aakash @ Sonu is not worthy of credence and he appears to be a tutored witness. His testimony is therefore, unable to be discarded.

48. This fact that accused was seen in the company of the deceased and co­accused Anita is not free from doubt. Several questions remain unanswered. When deceased came from Village Baruara to Delhi? When she had left Village Baruara? When she had gone at Village Kakora? At which place she stayed in Delhi? When she came at Aali Gaon? On which date accused Akhilesh shifted from Aali Gaon to Hari Nagar? Whether deceased accompanied accused Akhilesh? On which date deceased came to Hari Nagar? There is no investigation on these important aspects. To establish, this fact beyond doubt that accused persons were residing with the deceased, the aforesaid questions required an answer. Sunil Kumar (PW­17), who was a tenant at the ground floor at House No.59, Gali No.10, Hari Nagar, Part­II has not supported the case of prosecution. He was cross examined by Learned Addl. PP for the State. He denied that he had seen the accused Akhilesh and Anita alongwith two children and deceased Meena. He denied that he had seen Akhilesh and both the wives were quarreling with each other or he noticed on next date at about 07:00 am, Meena was not there. He denied that he came to know from the brother­in­law of accused Akhilesh that Akhilesh and Anita had killed Meena by pushing her at Agra Canal. 

State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010                                                         29/35
                                                                            Unique ID No. 02406R0221352011

Only witness, who has deposed regarding this fact that Meena (deceased) was residing with accused Akhilesh at Delhi with her before the alleged incident on 09.09.2008 is PW­12. The testimony of Satish Kumar Sharma ( PW12) to the extent, that he had seen both the accused and deceased together does not inspires confidence. PW­12 stated that his mother had kept accused as tenant on 07.09.2008. He deposed that four­five days after 07.09.2008, saw one more lady in his room apart from Akhilesh and his wife and that accused was quarreling with his wife. This portion of his statement, implies that he saw accused quarreling with his wife on 11.09.2008 or 12.09.2008, whereas as per the case of prosecution, the alleged incident had occurred on 09.09.2008. There is no explanation that why mother of PW­12, who inducted accused as tenant, as per PW­12 has not been cited as a witness or examined by the IO. In the cross examination, PW­12 deposed that, in his view, the husband and wife were residing as tenant for 10­12 days. He admitted that he gave statement to the police wherein he stated that Akhilesh and Anita had made Meena disappeared somewhere was based on the information, received from the third person and he was not a witness to the scene. Further, his statement that accused Akhilesh and Anita have pushed Meena into the Agra canal in the night was also based on information given by brother­in­law of accused Akhilesh. He deposed that the police had not read over her statement u/s 161 Cr.P.C. to him and he had put his signatures on the statement given to the police. He was confronted with the statement (Ex.PW12/D1) where there were no signature of PW­12. Evidence adduced by PW­12 is not worthy of credence to base conviction of accused thereon. From the evidence on record, this Court finds that prosecution has failed to establish beyond doubt that deceased was residing in the same house with State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010 30/35 Unique ID No. 02406R0221352011 accused at Delhi, before the alleged incident.

49. Authorities referred by Learned Addl. PP for the State are not applicable to the factual matrix of the case, as in the present case, testimony of the child witness is not coherent. Not only, he has taken shifting stand at different times, but also admitted that he was tutored by complainant. It may be noted that at the stage of argument, child witness (PW­3) appeared in the Court and on asking, reiterated that he was tutored by his maternal uncle. In other cases reported as 1993 Crl. C.J. 2605 abd 1995 Crl. C. J. 1461, testimony of witness was only corroborated by other witnesses, whereas, in the present case, there is no corroboration at all.

50. One significant fact which may be noted is that, as to how at the mid of night, accused persons alongwith deceased reached at the place of occurrence. Prosecution witnesses have admitted that there is always security on the bridge, which leads to the park which is the alleged place of occurrence. PW­16, initial IO, admitted that there is always security on the said gate and on the other hand of the bridge there is security of CISF and the permission of the security is required to enter inside the gate particularly in the night hours. PW­2 also deposed that the gate in the night remains closed and in the night nobody can go there. PW­8 also testified that there is gate of NTPC, which is under the close watch of the security. Site plan (Ex.PW6/A) shows that gate, which begins from the kachcha road indicating that without passing through the gate nobody could reach to the place or occurrence. It remains totally unexplained is to how at about 03:00 am on the midnight, accused persons as well as the deceased, reached at the place of occurrence despite presence of CISF Security. This fact that child (PW­3) guessed that his parent might have gone near canal and he also reached near the place of occurrence despite security also seems improbable. 

State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010                                                                 31/35
                                                                                  Unique ID No. 02406R0221352011

51. In the missing report (Ex.PW2/A) lodged on 14.09.2008 by the complainant Chotte Singh (PW­2), it is not mentioned that the deceased was wearing mehroon colour bangles. In his testimony, PW­2 deposed that the bangles, which were worn by his sister were purchased by her 15 days ago from his native village before she came to Delhi. PW­2 has not disclosed this fact to the IO in his statement u/s 161 Cr.P.C. recorded on 18.09.2008 or in his complaint (Ex.PW2/B) dated 15.09.2008. In his testimony, PW­2 has, nowhere deposed that before coming to Delhi, deceased Meena had gone to village Kakora and had purchased mehroon colour bangles and thereafter, she had come to Delhi. PW­2 deposed that he had got purchased those bangles for his sister 15 days prior to the incident, in the village. PW­2 deposed that he was not having any personal information that his sister had come to Delhi, it was only Dinesh (DW­2), brother of the accused Akhilesh as well as his deceased sister Meena, who according to PW­2 had telephonically inform him that she had come to Delhi.

52. IO (PW­18) admitted that when he recovered the payal from house i.e. E­59, Gali No. 10, Hari Nagar, Part­II, the room was not in the possession of accused Anita and she was in the police custody for last three days, but it was in the custody of Chotte Singh (PW­2). He deposed that the complainant party was living in the said house since 12.09.2008 alongwith accused persons and after the arrest of the accused i.e. 13.09.2008 house was accessible to the Police. IO (PW­18) categorically deposed that complainant party was continuously living in the said house after the arrest of the accused persons. IO admitted that anybody could go to the place of occurrence and it was accessible to anybody. IO admitted that they could have found the payal at the place of recovery even in the absence of the State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010 32/35 Unique ID No. 02406R0221352011 accused and even in the room too the payal could recovery without the presence of accused Anita. He admitted that PW­2 himself opened the lock of the house where they entered for recovery of the incriminating payal. PW­16 has categorically deposed that at the time of their visit at E­59, Gali No. 10, Hari Nagar, Part­II, Dhirender and Vikas, brothers of the complainant Chotte Singh and Aakash @ Sonu were present in the room from where writing (Ex.PW4/A) was recovered. Alleged recovery of one payal from the place of occurrence is highly doubtful. Although, PW­18, had recovered broken bangle pieces from the spot, but he could not recover one payal from the spot. He deposed that the payal recovered from the place of occurrence was lying there for 'nine' days. Although, the whole team had made search of the same, but it was only PW­18/IO, who could pick up the payal from the open place. PW­18 deposed that he recorded the disclosure statement about the new fact of the payal in the Police Station at 10:00 am, on 18.09.2008. Thereafter, he reached to the spot with the purpose to recover the payal and also to fish out the dead body of the deceased from the Canal. No sincere effort seems to have been made to recover dead body. Record shows that recovery of payal from the spot was effected before IO (PW­18), recorded statement of ASI Mahender. IO admitted that he had not written this fact in the statement of ASI Mahender Singh that payal was recovered in his presence. PW­18 admitted that anybody could go to the place of occurrence and it was accessible to anybody. PW­13 also deposed that the park had access to the public and there was no restrictions, if somebody wanted to visit the park. Evidence on record shows that the recovery of incriminating articles i.e. broken pieces of bangles and a payal from the alleged place of occurrence and recovery of a payal and letter (Ex.PW4/A) from House No. E­59, State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010 33/35 Unique ID No. 02406R0221352011 Gali No. 10, Hari Nagar is highly doubtful.

53. Now, coming to the alleged confession of accused Anita recoded by Laxmi Narayan (PW­4). Testimony of Laxmi Narayan (PW­4) shows that accused Anita was working under his supervision. Accused Anita in her statement u/s 313 Cr.P.C has stated to the effect that Laxmi Narayan (PW­4) used to harass her and when she failed to comply with her wishes, she was falsely implicated. PW­4 deposed that he had informed the police about the letter (Ex.PW4/A) on 13.09.2008 and police recorded his statement u/s 161 Cr.P.C on 16.09.2008. Admittedly, no date either 13.09.2008 or 16.09.2008 is written on the letter (Ex.PW4/A) stated to have been written by PW­4 on the dictation of accused Anita. PW­4 deposed that place where he had written the letter (Ex.PW4/A) is near Police Station Badarpur in Rajeev Gandhi Park. There is no explanation as to why PW­4 had not informed the police about the alleged confession given by the accused Anita. PW­4 admitted that he was having mobile phone with him and accused persons have not made any efforts to stop him from making any call from his mobile phone to anybody. No pointing out memo of the place, from where the alleged letter was written has been prepared or proved by the IO. Complainant (PW­2) went a step in making improvement, when he stated that another letter was recovered from the pocket of accused Akhilesh in the Police Station. He stated that the letter, which was recovered from accused Akhilesh was in his possession and the photocopy of which was given to the Police Station. No such letter is admittedly recovered from accused Akhilesh (A­1). In his statement u/s 161 Cr.P.C., PW­4 stated that accused Anita confessed that the deceased was pushed by her while in the letter (Ex.PW4/A) it is stated that she herself fell. There are alteration on several points therein. The 'exact State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010 34/35 Unique ID No. 02406R0221352011 words' are not proved in the Court by PW­4. Prosecution has failed to established that accused Anita had voluntarily given the statement or made confession to Laxmi Narayan (PW­4). The manner, in which letter (Ex.PW4/A) has been recovered and letter being undated and the fact that it has not been established at what time, date and place it was recorded by the PW­4 and keeping in view relationship of PW­4 with the accused Anita, letter (Ex.PW4/A) appears to be a totally unreliable piece of evidence.

54. To conclude, on appreciation of the evidence as a whole, this Court finds there are many loose end in the case and chain of circumstances is incomplete, and therefore, it will not be safe to convict the accused persons on the basis of insufficient evidence noticed above. This Court finds that prosecution has failed to establish beyond reasonable doubt that accused persons entered into a conspiracy to commit murder of Meena Kumari (deceased) and committed her murder pursuant to conspiracy. In the result, both the accused persons are hereby acquitted from the charges. Accused persons, who are in judicial custody, be released forthwith, if not wanted in any other case. The requisite bail bonds u/s 437­A Cr.P.C. have been furnished by the accused persons. File be consigned to Record Room. 

announced in the                                                                 
 open court  on                                                                      (VINAY KUMAR KHANNA)
28  July, 2012
   th
                                                                               Additional Sessions Judge­04
                                                                                 (South­East) Saket/New Delhi




State Vs. Akhilesh & Ors. ­ SC No. 27 of 2010                                                                         35/35