Delhi District Court
State vs Mohd. Anish on 18 April, 2018
IN THE COURT OF
Dr. SATINDER KUMAR GAUTAM : ADDL. SESSIONS JUDGE-03 :
EAST DISTRICT : KARKARDOOMA COURTS : DELHI.
S.C. No. : 543 of 2016
(ID No.: 02402R0 426782014)
State Versus Mohd. Anish
S/o Faiz Mohd. @ Chandi
R/o CII/A 200, New Ashok Nagar,
Delhi.
FIR No. : 399/09
Police Station : New Ashok Nagar
Under Section : 302 IPC
Chargesheet Filed on : 19.07.2013
Previous Judgment dated : 28.03.2014 (Convicted u/s 302 IPC)
Appellate Order dated : 24.09.2014 (Remanded back)
Court Presided over on : 06.11.2017
Fresh final arguments heard : 12.04.2018
Judgment Reserved on : 12.04.2018
Judgment Announced on : 18.04.2018
Final Result : Convicted u/s 302 IPC
JUDGMENT
1. This judgment shall dispose off the case arising out of FIR no.399/09, Police Station New Ashok Nagar, u/s 302/498A/34 IPC in terms of the directions for summoning of additional evidence and examine the incharge of PCR Van, vide order dated 24.09.2014 passed by the division bench of Hon'ble High Court of Delhi in Criminal Appeal Nos. 534/14 and SC No. 543/16 State Vs. Mohd. Anish Page No. 31 of 31 777/14 while setting aside the judgment of conviction dated 28.03.2014 and Order on Sentence dated 05.04.2014 passed by the Ld. Predecessor.
2. The accused persons namely Mohd. Anish, Faiz Mohd. @ Chandi and Salma filed criminal appeal before the Hon'ble High Court of Delhi challenging the aforesaid judgment and Order on Sentence passed by the Ld. Predecessor of this court whereby accused Mohd. Anish was held guilty for the offences punishable u/s 302/498A IPC and his parents Faiz Mohd. @ Chandi and Salma convicted for the offence u/s 498A/34 IPC. Accused Mohd. Anish has filed a Criminal Appeal no. 777/14 and other two accused filed a Criminal Appeal no. 534/14 before the Hon'ble High Court of Delhi whereby Hon'ble Division Bench set aside the impugned Judgment and Order on Sentence against the convict Mohd. Anish whereas he was convicted for the offence for murdering of his own wife Manju @ Shahin though the other two accused were convicted for the offence u/s 498A/34 IPC. The Hon'ble High Court of Delhi in judgment dated 24.09.2014 has acquitted accused Faiz Mohd. @ Chandi and Salma for the charges u/s 498 A/34 IPC though, while setting aside the judgment of conviction u/s 302/498A/34 IPC and order on sentence against accused Mohd. Anish and remanded back the case to examine the additional witnesses i.e. Incharge of the PCR van since the prosecution has not examined the Incharge of the PCR van who had reached at the spot and had sent the information on wireless on which L/Ct. Nimmo wrote at the second instance in the PCR log. In the second entry of the PCR log, it is recorded that the husband of the deceased was present in the house when PCR officials reached on receiving SC No. 543/16 State Vs. Mohd. Anish Page No. 31 of 31 of call.
3. Accused Mohd. Anish had also challenged the impugned order dated 15.01.2015 passed by Ld. Trial Court whereby prayer made for recalling the PW12 Smt. Gyan Devi, PW13 Babu Ram and PW18 SI Yoginder Singh u/s 311 CrPC for their reexamination/crossexamination was rejected. Criminal revision petition no. 56/2015 dated 19.10.2015 allowed accused Mohd. Anish to recall PW12, PW13 and PW18 for further cross examination on the limited issue of inception of new facts through the mouth of PW22 HC Omkar Prasad.
4. As per the prosecution story, the accused persons were facing trial for the charges framed whereas alleged that on 22.09.2009 at H.No. C II/200, New Ashok Nagar, Delhi accused Mohd. Anish committed murder of his wife Smt. Manju @ Shahin by way of strangulating her and his father Faiz Mohd. and mother Salma were also facing trial for subjecting Smt. Manju @ Shahin to cruelty to the unlawful demand of dowry articles or valuable security during her lifetime.
5. In order to prove its case, prosecution examined 21 witnesses which have been well explained in the judgment by the Ld. Trial Court dated 28.03.2014. However, in order to come to the conclusion the case of the prosecution and circumstances, statement of PW12 Smt. Gyan Devi, PW13 Babu Ram who are the parents of the deceased Manju @ Shahin made allegations of demand of dowry by the accused persons and stated that the deceased was residing in the matrimonial house along with all three accused persons where she was being harassed for dowry demands.
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6. PW12 Smt. Gyan Devi is the mother of the deceased who stated that the accused Mohd. Anish is her soninlaw and has met her about four days back from the death of the deceased and asked Rs.2,00,000/ otherwise they would harass her daughter Manju. The accused Mohd. Anish has also further stated to her that if she could not give him abovesaid amount, then they should transfer their house in his name. After one month of the meeting with accused Mohd. Anish, she received a telephonic call from Manju stating that accused Mohd. Anish and her in laws are harassing and causing cruelty on her while given beatings to her, on account of non fulfillment of dowry demand of Rs.2,00,000/ and jewellery. She further stated that all the accused persons also asked her to get Rs.2,00,000/ or to transfer house of her mother in their name. One last telephone call was received from deceased Manju regarding harassment and cruelty about 23 days of Eid festival and on 22.09.2009 someone informed her that Manju had been killed upon which she along with her husband reached the matrimonial house of her daughter where none of his family members and the accused were found present and Manju was lying dead on the cot in the hall at ground floor.
7. PW12 Smt. Gyan Devi in her crossexamination dated 18.08.2010 on behalf of accused persons stated that no communication took place between her and accused persons and that her daughter Manju had married with the accused Anish after running away from her house and after one year a baby was born to her daughter. At that time she visited the hospital where she delivered the female child and when she visited the SC No. 543/16 State Vs. Mohd. Anish Page No. 31 of 31 hospital, she had not told her to come at her house. Her daughter never visited her house again after she went away from her house. She further stated that accused Mohd. Anish tried to contact us and visit their house many times but they always refused to meet him. She came across accused Mohd. Anish many times on her way outside their house or market but no conversation took place between her and accused Mohd. Anish. Her daughter used to call her on telephone several times after delivery of child and she used to talk about their well being on phone and used to express her willingness to come to their house but he never gave any consent to that. Her daughter used to tell her that accused Mohd Anish used to drive vehicle and he belongs to a well known family.
8. During trial, the application of the accused persons u/s 311 Cr.P.C. for recalling PW12, PW13 and PW18 was rejected, however, the order dated 15.01.2015 was challenged before Hon'ble High Court and in order to comply with direction given in the order of Hon'ble High Court of Delhi dated 19.10.2015, PW12 Smt. Gyan Devi, PW13 Sh. Babu Ram and PW18 SI (retired) Yogender Singh were recalled for further cross examination.
9. PW12 Smt. Gyan Devi was also recalled for cross examination on behalf of the accused in view of the order dated 19.10.2015 of Hon'ble High Court of Delhi. In recross examination dated 01.03.2016, she deposed that no police official had met them at the spot where the dead body of her daughter was lying and on seeing the dead body, they came back to the home. Thereafter, she remained at her residence and no police SC No. 543/16 State Vs. Mohd. Anish Page No. 31 of 31 officials met her on that day. She admitted that she along with her entire family members were very angry because of her daughter eloping with a muslim boy and married with him. She denied the suggestion that on this account she made false statement against accused Anish and his parents.
10. PW13 Sh. Babu Ram was also recalled for cross examination in terms of order of Hon'ble High Court of Delhi dated 19.10.2015 and in his cross examination stated that on the day of occurrence, they were residing at Ashok Nagar, Delhi and were staying in NOIDA prior to 198688 and thereafter he along with his family shifted to Ashok Nagar. He further stated that on reaching at the spot (first time after the occurrence) and on seeing the dead body of his daughter, he along with his wife came back to their house and no police officials met them at the spot at that time. He further stated that the distance between the residence of accused and his house is about 5 10 minutes walking and the boys who informed them about the death of his daughter were about 1012 years of age and they were children of tenants. He did not tell the names and details of those boys to the police. He called the PCR. Thereafter, he went to the spot to find out as to whether police had arrived or not and at the corner of Masjid Mor, he found one constable and a police jeep parked there. There is no house between the corner of Masjid and the house of accused. When he reached at the corner of aforesaid Masjid, he saw the police officials talking to accused Anish. On seeing this, he came back to his house. The aforesaid incident must be of the same day of the occurrence. He was not aware if accused Mohd. Anish was arrested on the same day when he saw accused Mohd. Anish talking to the police officials SC No. 543/16 State Vs. Mohd. Anish Page No. 31 of 31 near the corner of Masjid as they came back to their house on seeing that the police was talking with accused Mohd. Anish. He is not aware, if anything was got recovered by the police from the accused Mohd. Anish, in his presence however, admitted that he was very upset and angry because his daughter had married with a Muslim boy. (Vol.) It was natural for any other person. He was shown Ex.PW13/C to PW13/J upon which he admitted that those exhibits bear his signatures but he did not remember as to whether he had signed those papers and he did not remember if he signed all those papers on one day or on different days. He further stated that he visited the PS 23 times after collecting the dead body of his daughter however, he was not aware as to what is written in Ex.PW13/C to PW13/J. He signed those papers on asking the police officials. He denied the suggestion that he was deposing falsely against accused Mohd. Anish simply because he was angry and upset of his marrying with his daughter.
11. Similarly, PW18 SI (Retired) Yogender Singh was also recalled for cross examination in terms of order of Hon'ble High Court of Delhi dated 19.10.2015 and in his cross examination on behalf of accused, PW18 stated that he reached at the spot on receiving information from PCR vide DD No. 29A dated 22.09.2009 and admitted that till the local police reached at the spot, the PCR official had to be remained present at the spot. He met at the spot to HC Omkar Prasad, Incharge PCR but he had not recorded statement of PCR official as no case was registered till that time. Nobody from the family of the victim was present at the spot. He was told by the Incharge PCR that husband of the deceased was present there who SC No. 543/16 State Vs. Mohd. Anish Page No. 31 of 31 informed that his wife died due to infection of Mehndi. Thereafter, he recorded DD entry of his returning to the PS. He further testified that he did not remember if the fact that he was told by the PCR officials that accused Anish met them at the spot and informed them that his wife died due to infection of Mehndi. He remained at the spot for about 23 hours and during this period nobody from the family of the deceased came at the spot. When he reached at the spot, 1015 members including family members of the accused were present around the cot on which the dead body was lying. He inquired from the persons present there as to who has covered the dead body with a cloth but they told that they were not aware of the same. During his presence at the spot he did not carry out any search of the spot or the building and stated that since it was unnatural death within seven years of marriage, he informed to the SDM and Crime Team. He did not record the fact in his arrival entry in DD at the PS regarding the fact that he was told by the PCR officials that the husband of the deceased was present there, when they reached there. He further testified that he was present there at the time when the crime team reached at the spot. The crime Team had inspected dead body and took certain snaps thereof. The crime team also inspected the hall/room in which the dead body was lying. The said room was situated on the ground floor. He had made inquiries from the persons present there as to where i.e. on which floor the deceased used to reside however, he did not remember, if the crime team had inspected any other floor of the building in his presence or not.
12. After conclusion of prosecution evidence and recall of PW12, SC No. 543/16 State Vs. Mohd. Anish Page No. 31 of 31 PW13 and PW18 and cross examination of PW22, accused was examined u/s 313 Cr.P.C. on 23.09.2011 and in question no. 8, he stated that on 22.09.2009 he had gone to Laxmi Nagar as it was next day of Eid. At about 11.0012.00 a.m. he received a call that there is some problem in the house and he immediately rushed to his house. He was arrested by the police on the way to his house.
13. The accused after recalling of the prosecution witnesses was again recalled for recording additional statement u/s 313 CrPC vide dated 26.04.2016 and admitted that on 22.09.2009, PW22 HC Omkar Prasad, Incharge of PCR received a call from the Control Room at 4.30 p.m. that one lady has been killed by her inlaws and he reached at the residence and found the deadbody of deceased on a cot at ground floor of the said house. Again, the accused has taken the similar plea that he has gone to the Laxmi Nagar and when received the information about some mishappening, immediately rushed to his house and was apprehended by the police. Though, in the previous statement given a different time of arrival at the house but herein the statement dated 26.04.2016 had stated that the accused has immediately rushed to his house which are contradicted to each other and as such, also not trustworthy.
14. Accused Mohd. Anish had also examined himself u/s 315 Cr.P.C. as DW3 wherein he stated that on 22.09.2009 i.e. next day of Eid, he left his house in the morning around 99.30 am to meet his friends and relatives and gone to the areas of Laxmi Nagar and surroundings. At about 4.004.30 pm, someone called him and informed that his wife Shahin is not SC No. 543/16 State Vs. Mohd. Anish Page No. 31 of 31 well and some mishappening took place at his house. After receiving the call, he immediate rushed to his house and on the way he was falsely arrested by police and they took him to PS. During police remand, he was beaten up badly and was asked to confess that he killed his wife and due to pressure of police, he signed some blank documents. Though, in cross examination by Ld. Addl. P.P. for the State, he stated that he did not make any complaint against the police officials who had beaten him and also after his release on bail. He further admitted that he did not make any complaint regarding improper investigation done by the police.
15. Accused Mohd. Anish also examined in his defecne, DW1 Abdul Razak and DW2 Smt. Kaushar Jahan who stated that they had not seen any quarrel taking place between deceased and accused Mohd. Anish. They further deposed that parents of deceased never complained against accused persons to them prior to this incident and no demand of dowry was ever raised by the accused persons.
16. In pursuance of the reference made in the order of Hon'ble Delhi High Court dated 24.09.2014, PW22 HC Omkar Prasad was summoned and examined on 19.11.2014 and 26.11.2014 wherein he has stated that while posted as InCharge, PCR Romeo41, at about 4.35 p.m., he received a called from Control Room i.e. "Masjid ke paas Wali Gali, New Ashok Nagar, Ladki ko Sasural walon ne mar Diya Hai" and within 78 minutes, he reached at the spot along with his staff at the spot i.e. CII/A 200, New Ashok Nagar (ground floor). Several public persons gathered around the spot. The girl apparently dead was lying on a cot with her SC No. 543/16 State Vs. Mohd. Anish Page No. 31 of 31 face/body covered up. The husband of the deceased namely Anish was also present at the spot and he told him that his wife was a Hindu and she had died owing to the spread of infection after applying Mehndi and they married recently. The parents/relatives of the girl were also present there and they were alleging that the deceased had been murdered. On prima facie, deceased appeared to be age between 2021 years. In the meantime, local police arrived at the spot and body of the deceased was shifted.
17. In his cross examination by Ld. defence counsel, PW22 HC Omkar Prasad stated that when he reached at the spot, accused and other public persons were present there. He further voluntarily stated that some public persons were saying that accused had killed their daughter. In the meantime, local police also reached there and made inquiries from the accused and public persons gathered at the spot. He denied the suggestion that accused was not present at the spot when he reached there and before that local police had already taken him into custody. He further denied that accused Anish had not told him that his wife was Hindu and she had died due to the spread of infection after applying Mehandi. He remained at the spot for about 12 minutes after arrival of the local police. He further denied the suggestion that he had given wrong information to the Control Room of PCR which resulted into entries in Ex.PW16/A in connivance with the local police.
18. Having heard the arguments of Ld. Addl. P.P. for the State and Sh. S.K. Sharma, Sr. Advocate/defence counsel for accused and gone SC No. 543/16 State Vs. Mohd. Anish Page No. 31 of 31 through the material on record as well as the relevant judgment and the relevant provisions of law.
19. Ld. Addl. P.P. has argued that the statement of PW13 Sh. Ram Babu and PW12 Gyan Devi, mother of deceased who are the parents of the deceased have categorically testified in their deposition as well as recalling for further cross examination that their daughter was harassed by the accused persons as they were demanded Rs.2.00 lakh and accused Mohd. Anish in connivance with his parents was harassing and caused cruelty on deceased while giving beatings to her on account of non fulfillment of dowry demands or Rs.2.00 lakh and jewellary. The statement of both the witnesses are consistent and trustworthy regarding these allegations. The deceased was resided and died in her matrimonial house when the accused alongwith his parents were living there and the facts regarding the knowledge of death was within the knowledge of the accused though the accused in his statement u/s 313 CrPC stated that they were living happy married life and Manju @ Shahin (deceased) gave birth to baby girl named Aljeema. On 22.02.2009 next day of Eid, he left his house in the morning to meet his friends and relatives and gone to the area of Laxmi Nagar and surroundings area and at around 4.30 pm, he received a call from someone informing that his wife Manju @ Shahin is not well and some mishappening occurred but there is no defence witness nor any mobile of that person from whom the call was received. Even the accused did not examine the persons who are his friends and he went to meet them in the Laxmi Nagar and surrounding area. As such, the accused is unable to give any cogent explanation for his alleged SC No. 543/16 State Vs. Mohd. Anish Page No. 31 of 31 absence from the place of occurrence i.e. his house where he was living with his deceased wife and parents. It is also stated that the presumption has to be drawn against the accused to prove as to how and in what manner the deceased Manju @ Shahin was died. The accused is unable to produce any material to this effect therefore, prayed that the accused is liable to be convicted as per the charges framed.
20. Ld. Defence counsel argued that the statement of PW12 and PW13 are contradictory and does not inspire confidence and they made different story on different occasion. The chunni (dupatta) and viscera clothes of the deceased were not sent to the FSL. As per Ex.PW16/A, the first information was received by one Pramod vide his mobile no. 9710349197, CII, 142, New Ashok Nagar, New Delhi that (New Ashok Nagar, Masjid ke pas wala ghar hai, caller ki beti jo hindu ki ladki hai, ko muslim ne maar diya hai). The said caller was not examined by the prosecution. The Hon'ble High Court of Delhi in Criminal Appeal No. 777/2014 and Criminal Appeal no. 534/2014 have set aside the judgment dated 05.04.2014 to the extent, it held Mohd. Anish, Faiz Mohd. and Salma were guilty for the offence punishable u/s 498A IPC. One Pramod had conveyed the information to PCR which was recorded by L/HC Nimmo in a PCR logbook. PW16 L/HC Nimmo has proved the PCR form as Ex.PW16/A though the husband told that his wife died due to infection on applying Mehndi. It is further contended that the prosecution has not brought on record any evidence that the accused Anish was present in his house at the time of death of his wife.
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21. PW12 Smt. Gyan Devi recalled for further cross examination in terms of the order of Hon'ble High Court dated 19.10.2015. While cross examination on behalf of accused on 01.03.2016, PW12 Smt. Gyan Devi deposed that at the time of occurrence, she used to live at New Ashok Nagar, Delhi whereas when her daughter died, they were running a shop at Haldwani, Greater Noida, U.P. It was afternoon and they both heard some noise outside in the street, some children were talking in the street that her daughter had died. No police official met them at the spot where the dead body of her daughter was lying. On seeing the dead body, they come back to their home. Thereafter, she remained at their residence and no police official met her on that day. She herself and her entire family was very angry because of her daughter eloping with a Muslim boy and marrying with him. PW13 Sh. Ram Babu in his cross examination dated 01.03.2016 have also stated the similar version as stated by PW12 and further stated that when they reached at the corner of aforesaid Masjid, he saw accused Mohd. Anish and some police officials were talking. He is not aware whether accused Mohd. Anish was arrested on same day or anything was got recovered to the police from accused Anish in his presence. He also did not remember that he had signed on those papers on same day or different day. PW22 HC Omkar Prasad, Incharge PCR was also examined stated that "Anish was also present at the spot and he told that his wife died due to spread of infection after applying mehndi". As such, prayed that the testimony of prosecution witnesses are inconsistent, unbelievable and liable to be discarded and the accused is entitled for the acquittal.
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22. Keeping in view of the rival contention and the material placed on record as well as the judgments as referred above herein, the Hon'ble High Court of Delhi has exonerated accused Mohd. Anish from the charge u/s 498A IPC as well as his parents too. The additional evidence summoning of PCR official/PW22 HC Omkar Prasad and recalling for further cross examination PW12 Gyan Devi and PW13 Ram Babu. PW22 testified that the accused Anish was present at the spot whereas PW13 Babu Lal stated that he saw accused Anish near the corner of Masjid while talking with the police officials. Accused Anish has also alleging that the deceased was died due to mehndi infection. On the contrary, Ld. defence counsel while cross examining PW13 Ram Babu has suggested that his daughter was suffering from epilepsy and due to fit, she fell on iron bucket or for that reason, she died. Ld. defence counsel in cross examination of PW12 Gyan Devi dated 01.03.2016 suggested that on account of their angerness, because their daughter eloped with muslim boy and married him, they had given false statement against accused Anish and his parents. It is denied that they are falsely implicated the accused with the pretext that if she will not leave the company of accused, they will kill her.
Medical Evidence :
23. Document Ex.PW4/A is the postmortem report of deceased Manju @ Shahin. As per the said report, the injuries are described as under :
The external injuries are :
1) Ligature mark of 17.5 x 1 2.5 cm in size, present over middle part and right side of neck, 6 cm below right ear, 6 cm below chin and 6.5 cm below left ear, firm, interrupted SC No. 543/16 State Vs. Mohd. Anish Page No. 31 of 31 over front with 3 x 1 cm mark 3.5 cm above middle of left collar bone, 1 cm away from midline on dissection subcutaneous tissue was pale.
2) Multiple abrasions, 1x1 cm .3x.3 cm and .3x.3 cm present over back of right hand, nucle of index finger, middle finger, 8.5 and 8 cm below tip and 9 cm tip of little finger.
The internal injuries are : in head and neck, neck structure was intact, brain was edematus and cerebral vessels were engorged. In chest, in lungs petechiel haemorrage present over fissural aspect of lungs. Both lungs were congested. In abdomen, in stomach 250 ml of brownish material with pungent smell, walls were congested, small intestine, liver, spleen, kidneys were congested.
24. In the postmortem report of the deceased Manju @ Shahin, duration of death was given as 2230 hours. The viscera was preserved for chemical examination. The chunni was also seized and examined. It was opined that the injury no.1 which was ligature marks over the middle part and right side of neck, 6 cm below right ear, 6 cm below chin, 6.5 cm below left ear, firm, interrupted over front with 3 x 1 cm mark 3.5 cm above middle of left collar bone, 1 cm away from midline on dissection subcutaneous tissue was pale as mentioned in the postmortem report could be caused by chunni or some similar object.
25. Time since death was 2230 hours. As per the deposition of PW4 Dr. Vinay Kumar Singh, he opined that injury no.1 mentioned in the postmortem could be caused by this chunni or some similar weapon. On 28.11.2011, one the basis of FSL report, PW4 gave subsequent opinion that cause of the death of deceased was "asphyxia due to ligature SC No. 543/16 State Vs. Mohd. Anish Page No. 31 of 31 strangulation".
26. The multiple abrasions present over the back of the right hand, nucle of middle finger, index, middle and little finger but the said injuries have not been explained what the cause of the said injury and its duration whether it can be by scuffle or by some other reasons.
27. It is a mandate of Section 134 of Evidence Act, 1872 that quality and not quantity of evidence is material. The quality of evidence even of a single witness whose testimony has either to be accepted or rejected, is such a testimony is found by the court to be entirely reliable, there is no reason of impediment to the conviction of accused on such proof. Even as, the guilt of accused may be proved by testimony of single witness, even though a considerable number of witnesses may be forthcoming to testify the truth of the case for prosecution. Mere probability of witnessing the occurrence by the neighbour of place of incident is not enough, but something more is required to test the veracity in order to marking as more trustworthy. When such a solitary witness omit to state the material fact of the actual incident in his first disclosure before the investigating officer, then his evidence become doubtful and reliable to be pushed out of the arena of solitary eye witness of murder.
28. In a case, the circumstances established were the following namely :
i) Enmity;
ii) the deceased was last seen in the company of accused and
iii) the ornaments which were on the person of deceased were SC No. 543/16 State Vs. Mohd. Anish Page No. 31 of 31 sold away on the next day of murder.
In case of Sanjeev Kumar Vs. State of Himachal Pradesh, AIR 1999 SC 782 it was observed by the Apex court "if the accused and his wife were seen together in the house at 9.00 pm and accused came out in the morning through the roof, leaving the wife and two children, and the death of the wife was found to be not on account of burn injury but on account of strangulation and on being asked, the accused offered an explanation about the accidental fire which was found to be untrue, then in such a case, there could not be any hesitation to come out to the conclusion that it was the accused who was the preparator of the crime".
29. In the instant case, accused Mohd. Anish had made a disclosure statement vide Ex.PW13/J and also point out the place of occurrence vide pointed out memo Ex.PW13/F and explained the manner in which, the incident had been taken place. His statement u/s 313 CrPC was also recorded admitted that the Nikah was performed with the deceased Manju @ Shahin in June 2009. At that time, deceased Manju was already pregnant. After the Nikah ceremony, she gave birth to a female child. Accused Mohd. Anish stated two different versions while recording his statement u/s 313 CrPC that he had gone to Laxmi Nagar as it was the next day of Eid and at about 11.12 a.m., he received a call that there is some problem in his house. On the contrary, accused Mohd. Anish while examined as DW3 u/s 315 CrPC stated that on 22.09.2009, next day of Eid, he left his house in the morning at 9.009.30 a.m. to meet his friends and relatives and gone to the area of Laxmi Nagar and surrounding area. At about 4.004.30 am, someone SC No. 543/16 State Vs. Mohd. Anish Page No. 31 of 31 called him and informed that his wife Shahin is not well and some mishappening occurred at his house. On receiving the call, he immediately rushed to his house. While he was in the way to his house, he was falsely arrested by the police. The accused also further examined additionally u/s 313 CrPC on 26.04.2016 but in this examinations, he has not stated the timing of departure from his house, when he has received the call and when he reached to his house.
30. Under Sec. 106 of the Evidence Act, the burden of proof of any particular fact which is in the knowledge of person who alleged, has to be proving that fact is upon him.
31. The accused Mohd. Anish in his statement u/s 313 CrPC as well as the deposition u/s 315 CrPC as DW3, had made contradictory and different version regarding the information received by him, its timing of departure and arrival as well as non disclosing the true and correct fact deposing that he did not disclose who had called him on his mobile phone? What was the name and particulars of that person and his mobile number and to whom he had visited, is not disclosed, either anywhere? The accused has not disclosed the timing to visit at Laxmi Nagar and surrounding area and to whom he had met there? On the next day of Eid, when he left in the morning from his house, whether he had taken any gift articles etc. with him or that he has not given the information of his departure to his parents which creates a doubt upon his version to visit the Laxmi Nagar area. The story made to this effect is seems to be concocted one and based on conjunctures and surmises. The statement u/s 313 CrPC of parents of the accused was SC No. 543/16 State Vs. Mohd. Anish Page No. 31 of 31 also recorded. They have never corroborated with the statement of accused Mohd. Anish either to call him on his mobile or to the visit of the accused to Laxmi Nagar area.
32. PW4 Dr. Vinay Kumar Singh had already given an opinion regarding the duration of death i.e. between 2230 hours. PW4 has also examined the chunni recovered near the dead body, his opinion that "injury no.1 on the body of deceased to be caused by said weapon (chuuni) examined or some similar weapon. In cross examination of Ld. defence counsel, this witness has denied that injury no.1 was sustained by the deceased by falling on a bucket. PW4 Dr. Vinay Kumar Singh also affirmed his opinion while even in cross examination of defence counsel and further corroborated the same, by stating that "the injury no.1 is possible on which the ligature and not by falling on the edged object. It was also observed that the blood came out from the nose of the deceased".
33. It is a matter of fact that the deceased Manju @ Shahin died in her matrimonial house where the accused Mohd. Anish alongwith his parents and daughter Aljeema was living and the deceased Manju @ Shahin was died within the four corner of her matrimonial house which was being share by accused Mohd. Anish, then a question arose, how and why she died? This fact is well within the knowledge of the persons who were living with the deceased. There is no eye witness of the crime except the accused. The accused alleged that he has left his house in the morning on 23.09.2009. The incident had taken place prior to it. There was only one entry/exist to the said property no. CII A/200, New Ashok Nagar, Delhi. The family SC No. 543/16 State Vs. Mohd. Anish Page No. 31 of 31 members consists of accused Mohd. Anish, his father Faiz Mohd., mother Salma and baby child Aljeema who occupied the said property and there is no force entry or outside entry alleged by the accused.
34. Besides the above, contentions of the ld. counsels that investigation is faulty, Hon'ble Apex Court in catina of judgment from time to time that accused persons cannot take the shelter of faulty investigation, if otherwise case of the prosecution is strong. In Dhanaj Singh Vs. State of Punjab, 2004 Crl. LJ 1807 at 1809 (SC) and also Karnel Singh Vs. State of M.P., 1995 (5) SCC 518, Hon'ble Apex Court observed that in case of a defective investigation, the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective.
35. Section 106 of the Indian Evidence Act 1872, illustrations
(a) when a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving hat intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.
36. The case titled as Narayan Tatyaba Gavhane Vs. State of Maharashtra, 2006 (CrLJ (NOC) 434 (Bom.), it was observed that "in a homicidal death of a married woman, her body was found in a well two days after she left her home. Inquiry by the witness who met her brother as to why the deceased was not with him showed that the witness knew that the SC No. 543/16 State Vs. Mohd. Anish Page No. 31 of 31 deceased had gone to her parents house and there being no previous incident of any quarrel or assault on her, it could not be presumed that the factum of homicidal death was within special knowledge of the accused persons and the burden lay on them to explain as to how the victim met with homicidal death.
37. Whereas the offence of murder is committed in secrecy inside a matrimonial house which is covered with the four corner of wall and the member of the matrimonial family are living therein alongwith the deceased. The family members at matrimonial house will not be deposed against themselves. No doubt, the burden to prove the guilt of the accused is upon the prosecution but the nature of amount and evidence to be led by to establish a charge cannot be of same degree as is required in other cases of circumstantial evidence. In view of the section 106 of Indian Evidence Act, 1872 there will be a burden of the family member mainly to the person who were living very close to the deceased to give a cogent explanation as to how the crime has been committed. The inmates of the house cannot get away by simply keep quite and offer no explanation on supposed promise that the burden to establish, it lie upon the prosecution and there is no duty upon all upon the accused to give an explanation. When the accused alleged to have been committed the murder of his wife within the short period of marriage, upon some petty issues like gift articles or some greediness of money to be expected to be given by the parents of the deceased. The accused and the deceased were last seen together before the commission of the offence and suddenly accused left the company of the deceased without any cogent and SC No. 543/16 State Vs. Mohd. Anish Page No. 31 of 31 valid explanation, even did not disclose the name of his friend and surrounding area of Laxmi Nagar where he had visited. Even he had not disclosed the mobile n umber of his friend/person to whom he had received the call and visit before and after the incident. Though, the other circumstantial evidence like the weapon of offence, the medical evidence as well as kept mum by the family members of accused Mohd. Anish with respect to the manner of incident occurred, had they heard any cry, quarrel etc. soon before the incident. Section 106 would apply to the cases where the prosecution has succeeded in proving the fact from which a reasonable inference can be drawn regarding the existence of the other settled fact. Unless the accused was virtue of special knowledge regarding such facts, failed to offer any explanation which drive the court to draw a different inference.
38. The accused has taken the plea of "alibi" as alleged that he was not present at the time of committal of the crime. The deposition of the accused in his statement u/s 313 CrPC as well as examined as DW3 u/s 315 CrPC does not corroborate of his own version. The father and mother of accused Mohd. Anish were present in the house at the time crime was taken place even prior to it, but the parents of the accused did not examine themselves as a defence witness.
39. A reference is made to a judgment of Delhi High Court reported in 2015 (216) DLT 599 titled as Rajender Thakur Parokar Vs. State, Hon'ble Mr. Justice Pradeep Nandrajog and Hon'ble Mr. Justice R.K. Gauba wherein it was laid down that "if the accused fails to substantiate the plea of SC No. 543/16 State Vs. Mohd. Anish Page No. 31 of 31 alibi, an adverse presumption has to be drawn against him and ought to result in conviction of the accused which was done in the said case.
40. In the judgment Vijay Pal Vs. State by the Hon'ble Supreme Court of India in Criminal Appeal no. 2153/2011, wherein plea of alibi was considered and failure to establish plea of alibi was responsible for conviction of the accused.
41. Accused Mohd. Anish appeared in the witness box u/s 315 CrPC as DW3 whereas stated in his examination in chief that on 22.09.2015 i.e. next day of the Eid, he left his house in the morning around 9.009.30 am to meet his friends and relatives in Laxmi Nagar and surrounding area. At about 4.004.30 pm, someone informed him that his wife Shahin is not well and some mishappening occurred in his house whereas in his statement u/s 313 CrPC, question no.8, he answered that on 22.09.2009 at about 11.00 12.00 am, he received a call that there is some problem in the house and he immediately rushed towards his house and he was arrested by the police on the way to his house and statement u/s 313 CrPC on 26.04.2016 did not specifically state anything about his departure and arrival as well as receiving of the phone call. As such, said statements are contradictory and does not inspire any confidence and truthfulness, in absence of any cogent oral and documentary evidence. The accused examined two defence witnesses apart from himself but none of the relatives or friends have brought in the witness box to prove that the accused met them on the next date of Eid at Laxmi Nagar or surrounding area. The accused also did not produce any call detail from whom he has received the information SC No. 543/16 State Vs. Mohd. Anish Page No. 31 of 31 regarding some problem in his house or his wife deceased Manju @ Shahin is not well as some mishappening occurred in his house. Accused neither produced that person nor gave his mobile number. Even did not produce his mobile number and call details to the police to show his bonafide that he had received the call. The accused has also given a contradictory statement regarding time of receiving a call. There are material contradictions in his story which not only show that the story made to this effect of plea of alibi with the ulterior motive to save himself from the grave crime.
42. PW4 Dr. Vinay Kumar Singh examined the chunni in question and found that no knot was on the same. As such, presumption of the deceased having committing suicide by tying a knot around her neck had strangulated herself is totally false and baseless. From the material on record, it also revealed that there is no ceiling fan, and no chair or stool found in the room of the deceased. The deceased was brought on the cot. Even the parents of the accused did not call any doctor to provide any medical treatment to the deceased. There is no possibility of committing suicide by hanging or poisoned by the deceased. The parents of accused Mohd. Anish also living in the same property, but did not notice any quarrel or cry. The conduct of the accused/husband is relevant u/s 11 of the Indian Evidence Act, 1872 for which illustration (b) is read as under :
(b) The question is, whether A committed a crime.
The circumstances are such that the crime must have been committed either by A, B, C or D, every fact which shows that the crime could have been committed by no one else and that it was not committed by either B, C or D, is relevant.
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43. The conduct of the accused is unnatural as he left the house without informing to his parents nor he has explained name and particulars of his friends and relatives to whom he had visited. He also does not disclose the mobile number or the name of the person from whom he had received the call. The conduct of the accused is very suspicious as he did not inform about the well being of the deceased nor informed to his parents to moving to the Laxmi Nagar and surrounding area. The parents of accused Mohd. Anish did not make any efforts to call the police or doctor. There is no explanation of the injury marks present on the person of the deceased as well as the bleeding from her nose. The postmortem report clearly indicate the cause of death was as asphyxia due to the ligature strangulation. It shows that the deceased was killed by strangulation and not by any other means.
44. In case of Binay Kumar Singh Vs. State of Bihar, (1997) 1 SCC 283 in para no.22 and 23, it was observed by Hon'ble Mr. Justice Dipak Mishra that :
"22. We must bear in mind that an 'alibi' is not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration (a) given under the provision is worth reproducing in this context :
" The question is whether A committed a crime at Calcutta on a certain date; the fact that on that date, A was at Lahore is relevant".
"23.'The Latin work alibi means "elsewhere" and that word is used for convenience when an accused takes recourse to a SC No. 543/16 State Vs. Mohd. Anish Page No. 31 of 31 defence line that when the occurrence took place, he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden, it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi".
45. The evidence of the defence witnesses as well as the response given in the statement u/s 313 CrPC as regard to the plea of alibi, does not inspire any confidence. The cumulating effect of the evidence as at the scene of occurrence while committed the crime, as per the postmortem report, duration of death is 2230 hours, according to the accused, he had left SC No. 543/16 State Vs. Mohd. Anish Page No. 31 of 31 the premises at 9.009.30 am on 22.09.2009. He received a call to come back to his house at 11.0012.00 am or 4.004.30 pm. As per Ex.PW13/C, he was arrested on 23.09.2009 at 9.30 pm. PW21 Insp. Harpal Singh stated that the accused was arrested on 23.09.2009, on the pointing out of the informer from Metro Station near New Ashok Nagar, Delhi whereas the accused alleged that he had gone to Laxmi Nagar and surrounding area but there is no evidence in this regard have been brought on record to dispute the presumption arise against accused Mohd. Anish u/s 106 of the Indian Evidence Act.
46. In case of Sharad Bridhi Chand Sarda Vs. State of Maharashtra, (1984) 2 SCC 116, the Hon'ble Apex Court held that :
"A false explanation or a false plea taken by the accused can be used as an additional link in the chain of circumstantial evidence subject to satisfaction of three essential conditions, namely (i) various links in the chain of evidence led by the prosecution have been satisfactorily proved, (ii) the said circumstance points to the guilt of the accused with reasonable definiteness, and (iii) the circumstances is in proximity to the time and situation".
Analysis and Conclusion :
47. The accused has not explained any circumstances from his own conduct since the couple and parents of the accused were living in matrimonial house and there is no force entry or exit. In such a circumstance, the accused has to explain his own conduct and as how his wife had met with her death. The accused has taken the plea that his wife died due to infection on applying mehndi which has not been proved and is SC No. 543/16 State Vs. Mohd. Anish Page No. 31 of 31 ruled out by circumstantial and medical evidence. Even defence counsel suggested to the witnesses in cross examination that the deceased was died due to epilepsy or falling on a bucket have been denied.
48. Giving the evidence on record and the aforesaid discussion, following facts and the circumstances have been brought home beyond the pale of all doubts :
(i) The accused was married to the deceased Manju @ Shahin who was Hindu by birth but had converted to Islam after marriage and died in her matrimonial home and the information regarding the death was received at the PCR on 22.09.2009 at 6.07.03 hours.
(ii) After the solemnization of marriage, the accused and his family members shifted to New Ashok Nagar house and started living on the second floor bearing no. CII/200, New Ashok Nagar, Delhi and one female child was born out of the said wedlock.
(iii) The deceased had died due to the asphyxia of strangulation as such, the deceased Manju @ Shahin has suffered homicidal death. There is no suggestion on record to throw up even a remote possibility that the deceased woman had suicidal traits or could have committed an attempt of such nature.
(iv) The plea of alibi taken by the accused is not substantiated by any evidence and the presence of the accused at the place of incident has been proved by the prosecution through the ocular and trustworthy evidence.
(v) The accused Mohd. Anish has absconded away from his house after commission of the offence and set of different plea which is not substantiated.
(vi) The place of incident is a matrimonial house which was being occupied by the accused and his daughter, parents and the deceased and there is no force entry.
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49. The marks of injuries i.e. ligature marks with multiple abrasions cannot be self inflicted injuries and as per the expert opinion, the injury no.1 as mentioned in the postmortem report could be caused by the chunni or some similar weapon on the basis of FSL result, PW4 gave subsequent opinion after receiving the FSL result regarding the cause of death was asphyxia due to the ligature strangulations. The Forensic Science Laboratory report regarding exhibit 1A (stomach and piece of small intestine with contents), exhibit 1B (consisting of piece of liver, spleen and kidney) and exhibit 1C contained blood sample volume approx. 12 ml. On chemical and TLC examination, metallic poisons ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides could not be detected in exhibits 1A, 1B and 1C.
50. The prosecution has proved its case beyond all reasonable doubt to the material evidence adduced by the prosecution on the basis of overall effect on the entire set of fact taken into commutatively though circumstances brought on record definite tendencies unerringly pointing towards the guilt of the accused Mohd. Anish. The circumstances taken accumulatively from a chain so complete that there is no escape from the conclusion that within all human probability the crime has been committed by the accused Mohd. Anish S/o Faiz Mohd. @ Chandi and none else. The prosecution has brought complete chain of consistence, corroborative, trustworthy, truthful and best evidence which the nature of case admits and proved beyond all reasonable doubt that the present accused Mohd. Anish is only the person and none else who had killed his wife Manju @ Shahin SC No. 543/16 State Vs. Mohd. Anish Page No. 31 of 31 (deceased).
51. Therefore, in view of the aforesaid discussions and the reasons stated therein as well as the judgments cited, the prosecution has been able to prove it against the accused Mohd. Anish S/o Faiz Mohd. @ Chandi who is guilty for the offence u/s 302 IPC. Accordingly, accused Mohd. Anish is convicted for the offence u/s 302 IPC.
Digitally signed SATINDER by KUMAR
SATINDER
KUMAR
Announced in the open Court
GAUTAM
Dated : 18th April, 2018
GAUTAM Date: 2018.04.18
16:51:49 +0530
(Dr. Satinder Kumar Gautam)
Additional Sessions Judge03 (East) :
Karkardooma Courts : Delhi.
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