Delhi District Court
State vs M. Rajni And Ors. - Sc No. 07/2011 1/35 on 21 January, 2014
ID No.02406R0080602011
IN THE COURT OF ADDITIONAL SESSIONS JUDGE - 04
& SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET COURTS: DELHI
Sessions Case No. 07/2011
ID No.02406R0080602011
FIR No. 551/2010
U/s 302/201/120-B IPC
PS : Mehrauli
State
VERSUS
M. Rajni ..........accused no. 1
w/o Sh. K. Mahesh
r/o 74, Village Maidan Garhi, Mehrauli
Delhi
P. Jyathi Murgan ..........accused no. 2
s/o Sh. A Landy
r/o H. No. 132, Gali no. 8, Tughalakabad
Delhi
S. Manish @ Anna ..........accused no. 3
s/o Sh. S. K. Sundram
r/o K-205, Sewa Nagar
New Delhi
Instituted on : 30th April,2011
Argued concluded on : 09th January,2014
Decided on : 21st January, 2014
JUDGMENT
Facts
1. At 03:36 pm on 20.12.2010, a PCR call was recorded vide DD no. 17-A at Police Station Mehrauli at the instance of Ramphal, the landlord of House No. 74, Maidan Garhi 'about the death of his tenant due to excess intake of alcohol'. SI Kailash Chand and SHO/Inspector Pankaj Singh reached at the spot. Dead body of K. Mahesh s/o Sh. Krishna Murli was found on a mattress lying on the IInd floor of the room. Dead body was covered with a quilt. An empty glass and a bottle of country made liquor containing less then 1/4th content was found near dead body. During inquiry, it was revealed that deceased was residing as a tenant at H. No. 74, Maidan Garhi alongwith his wife and a 4 ½ years old daughter. Ms. M. Rajni (A-1) wife of deceased revealed State vs M. Rajni and Ors. - SC No. 07/2011 1/35 ID No.02406R0080602011 that she went to her parental home, at Aya Nagar on 19.12.2010 at around 06:00pm, where her daughter was already there. Before that, at around 04:30pm, two friends of deceased, whom she did not know had come to him for some job at IGNOU. The said two persons who had stayed there for about an hour left after taking tea and food. M. Rajni (A-1) stated that her husband was addicted to the alcohol and was consuming alcohol on that day. She further stated that on 20.12.2010, when she came back at around 01:00 pm, her husband did not open the door, when she was screaming to wake up her husband then Sh. Azad son of the landlady came up and tried to wake up her husband, who did not respond. Sh Azad then kicked and opened the door forcefully. K. Mahesh (deceased) her husband was found dead inside the door. The neck buttons of the shirt of deceased's were closed tightly and on opening the same, a bluish circular ligature type mark was found on the neck of deceased. Four small screws were also found scattered at different places inside the room. The chitkani of the door was found broken and bent. Around 30 empty bottles of liquor were found in the box of the bed lying in the room. M. Rajni stated that her husband had died a natural death by excessive intake of alcohol and was found lying inside the room which was bolted from inside.
2. On 23.12.2010, postmortem on the dead body was got conducted. On 25.12.2010, the postmortem report received and cause of death was found to be "asphyxia due to anti-mortem strangulation". Case FIR No. 551/2010, PS Mehrauli u/s 302 IPC was registered on 25.12.2010. During investigation, it emerged that on 19.12.2010, accused M. Rajni wife of K. Mahesh (deceased) had killed him with the help of her lover P. Jyathi Murgan and his friend Manish by strangulating him with a chunni and naada and by pressing his face by pillow after making him drink excessive liquor. Initially, accused M. Rajni (A-1) and then, the other two accused (A-2 and A-3) were arrested on 25.12.2010. During investigation, statement of Smt. Maya landlady State vs M. Rajni and Ors. - SC No. 07/2011 2/35 ID No.02406R0080602011 and Sh. Azad Singh were recorded, who stated that they had seen accused persons together in the evening hours at their house. At the instance of accused M. Rajni, her 'chunni' used for strangulation of deceased was recovered on 25.12.2010. Pursuant to disclosure statements, accused P. Jyathi Murgan and Manish jointly led the police officers to a place below the bridge leading to Barapullah, Sewa Nagar, New Delhi and got recovered the 'pillow' with which the face of deceased was allegedly pressed when he was strangulated and 'naada' which was allegedly used to strangulate K. Mahesh (deceased) and was allegedly were thrown by accused Manish and P. Jyathi Murgan.
3. On conclusion of investigation, charge sheet was filed in the Court of Metropolitan Magistrate on 24.03.2011. Case was committed to the Court of sessions by Learned Metropolitan Magistrate on 19.04.2011. On 13.10.2011 , charges u/s 120-B IPC, 302 IPC were framed against accused persons to which they pleaded not guilty and claimed trial.
Points for determination
4. Points which emerge for determination in this case are:
4.1 Whether on or before 19.12.2010, accused persons in furtherance of their common intention entered into a criminal conspiracy to commit murder of Sh. K. Mahesh (deceased)?
4.2 Whether accused persons knowing and having reasons to believe that an offence was committed, caused disappearance of evidence and gave false information to police ?
Prosecution Witnesses
5. To establish charges against accused, prosecution examined twenty eight witnesses. Brief outline of the testimony of prosecution witnesses is as under:
5.1 Dr. Sanjay Kumar Singh (PW21) is witness of MLC (Ex. PW21/A) of K. Mahesh (deceased).
5.2 Doctor Asit Kumar Sikary (PW-25) conducted postmortem on the dead body of K. Mahesh (deceased). He placed on record inquest papers (Ex.PW25/A), postmortem report (Ex.PW25/B) and his opinion (Ex.PW25/C). Regarding, cause of death State vs M. Rajni and Ors. - SC No. 07/2011 3/35 ID No.02406R0080602011 i.e. "asphyxia due to strangulation" and time since death "about 4 days". 5.3 M. Natrajan (PW-1) classmate of accused P. Jyathi Murgan and the mobile phone number of accused P. Jyathi Murgan fed in his mobile phone was 8802502117. 5.4 Shanker Ganesh (PW-2) schoolmate of accused P. Jyathi Murgan was cross examined by Ld. Addl. PP for the Sate.
5.5 Azad Singh (PW-3) son of landlady Smt. Maya Devi. He identified photographs mark PX-1 and PX-2.
5.6 Maya Devi (PW-5) landlady of house no. 74, Maidan Garhi, New Delhi, wherein at IInd Floor, K Mahesh (deceased) and his wife-accused M. Rajni were residing as tenants.
5.7 Gowri Sankar (PW-6) working joined IGNOU in the year 1993. He deposed that Mahesh (deceased) joined IGNOU in the month of October 1993. They both were colleague and knew P. Selvaraj working in IGNOU.
5.8 Ankit Yadav (PW-7) registered subscriber of mobile phone 9999785609, which was given and being used by accused S. Manish.
5.9 R. Thyagrajan (PW-10) formerly Deputy Registrar, IGNOU placed on record his reply (Ex. PW10/A) to the letter dated 07.01.2011 written by SHO PS Mehrauli regarding period of working and nature of work of accused M. Rajni and P. Jyathi Murgan. 5.10 Ct. Rajesh Kumar (PW-4) alongith SI Kailash reached at house no. 74, Maidan Garhi, New Delhi and met wife of deceased, her parents , landlord and his mother.
He is witness to the seizure memo (Ex. PW4/A) of viscera of deceased, blood sample, hair sample of deceased.
5.11 W/Ct. Rajesh (PW-8) is witness to the arrest memo (Ex. PW8/A), personal search memo (Ex. PW8/B) of accused M. Rajni on 25.12.2010. She was witness to disclosure statement (Ex. PW8/D) of accused M. Rajni and of chunni (Ex. PW8/2) produced by accused M. Rajni vide seizure memo (Ex. PW8/E). 5.12 HC Manohar Lal (PW-11) duty officer recorded FIR (Ex.PW11/A) and made endorsement (Ex.PW11/B) on the rukka.
5.13 SI Vijay Singh Kasana (PW-12) incharge crime team. On 20.12.2010, he alongwith HC Udai Veer, HC Ram Sahai and Ct. Surender (driver) reached house no. 74, second floor, Maidan Garhi, New Delhiand inspected and prepared inspection report (Ex. PW12/A).
5.14 HC Yogender (PW-13) of Police Control Room received an information (Ex. PW13/A) on 20.12.2010 from H. No 74, near Shiv Mandir, Maidan garhi from Ramphal s/o Budhram to the effect that "mere kirayedar ke death ho gai hai, jisne rat jyada daru pi li State vs M. Rajni and Ors. - SC No. 07/2011 4/35 ID No.02406R0080602011 thi.".
5.15 HC Parmal Singh (PW-14) collected four sealed pullandas and sample seal from HC Jaiveer MHC(M) on 15.02.2011 in duly sealed condition and deposited the same at FSL, Rohini. On 21.02.2011, he collected sealed viscera and sample seal from MHC(M) and deposited the same at FSL, Rohini.
5.16 HC Radhey Shyam (PW-16) deposited two sealed pullandas on 07.01.2011 at forensic department, AIIMS.
5.17 HC Surender (PW-18) Special messenger and delivered the copy of FIR to ACMM South, Joint CP, DCP (South District ), Additional DCP (South) on 25.12.2010. 5.18 HC Udaibir (PW-19) photographer of mobile crime team took and placed on record photographs (Ex. PW19/A-1 to Ex. PW19/A-8) 5.19 HC Zakir Hussain (PW-20) duty officer produced daily diary (roznamcha) w.e.f 11.12.2010 to 28.12.2010.
5.20 SI Mahesh Kumar (PW-22) draftsman and prepared scaled site plan (Ex.PW22/A) at the instance of IO/Inspector Pankaj Singh. 5.21 HC Jaibir Singh (PW-23) malkhana mohrar deposed that on 23.12.2010, IO/SI Kailash deposited one sealed viscera box, hair sample, blood in gauze alongwith two sample seals of Department of Forensic Medicine in the malkhana vide entry at sl no. 3422 (Ex. PW23/A) in register no. 19. On 25.12.2010, IO/Inspector Pankaj Singh deposited four sealed parcels consisting of one parcel of blood in gauze of the deceased, one parcel containing chunni of accused M. Rajni, one parcel containing pillow and one parcel containing nada in the Malkhana vide entry no. 3425 in Register No. 19 (Ex.PW23/B). On 15.02.2011, exhibits deposited on 25.02.2010, were sent to FSL through HC Parmal vide RC No. 121/21/10, (Ex.PW23/C) and on 21.02.2011, case property deposited on 23.12.2010 was sent to FSL, Rohini .
5.22 SI Kailash (PW-26) deposed that on 20.12.2010, on receipt of DD no. 17- A (Ex. PW26/A) recorded at 03:36pm, vide which an information was recorded to the effect that "at house no. 74, near Shiv Mandir, Maidan Garhi, Rampl s/o Sh. Budh Ram, his tenant (tenant of caller) had died, as he had drunk liquor in excess." PW-26 along with Ct. Rajesh reached the spot and saw that 5-7 persons and a dead body of a male was lying on the floor of mattress. He called crime team at the spot and inspected the scene of crime. Crime team took photographs of place of occurrence. PW-25 noticed ligature mark on the dead body of deceased. PW-26 seized four screws of the door, 26 empty liquor bottles , one half filled liquor bottle and one glass vide seizure memos (Ex. PW26/B to Ex. PW26/D) respectively. PW-26 placed on record an application (Ex.PW26/E) to the CMO, State vs M. Rajni and Ors. - SC No. 07/2011 5/35 ID No.02406R0080602011 AIIMS Mortuary, inquest papers (Ex. PW26/F). PW-26 placed on record DD no. 36A (Ex. PW26/G) regarding arrival from the place of occurrence to the Police Station and regarding deposit of of seized articles in the malkhana. PW-26 recorded statements of Azad-son of landlord (Ex. PW3/DA); Maya Devi- mother of landlord (Ex. PW4/DA); M. Rajni- wife of K. Mahesh (deceased) (Ex. PW26/H1), parents of M. Rajni (Ex. PW26/H2 and Ex. PW26/H3) . He recorded statements of Suman Devi (Ex. PW26/K) and P. V. Chaddha (Ex. PW26/L). PW-26 placed on record DD no. 42B dated 21.12.2010 (Ex. PW26/J) regarding sending of telegram and information and other proceedings. PW-26 is witness of handing over handwriting of Gauri Shankar (Ex. PW26/M). He placed on record statement of identification of dead body by M. Rajni (Ex. PW26/N) and statement of father of deceased (Ex. PW26/P). Dead body was handed over to the relatives after postmortem vide handing over memo (Ex. PW26/Q). PW-26 prepared tehrir (Ex. PW26/R) and got registered the FIR in this case. PW-26 is witness to the arrest of memo of P. Jyathi Murgan (Ex. PW26/S) and of S. Manish (Ex.PW26/T), their personal search memos (Ex.PW26/U and Ex. PW26/V). PW-26 is witness to the seizure memos (Ex.PW26/W and Ex.PW26/X) of mobile phones recovered from the possession of accused P. Jyathi Murgan and of S. Manish. He placed on record disclosure statements of accused P. Jyathi Murgan and of S. Manish vide memos (Ex. PW26/Y and Ex.PW26/Z) respectively. PW-26 placed on record seizure memo (Ex. PW26/A-1) of pillow, nada and one empty half bottle of liquor, pointing out memo of place of occurrence (Ex. PW26/A-2) at the instance of accused S. Manish and (Ex. PW26/A-3) at the instance of accused P. Jyathi Murgan 5.23 Inspector Pankaj Singh (PW-27) conducted investigation and prepared several documents, during the course of investigation. PW-27 is witness of an application (Ex. PW27/A) for conducting TIP of accused P. Jyathi Murgan and S. Manish. PW-27 placed on record FSL reports (Ex. PW27/B, to Ex. PW27/D).
5.24 Deepak (PW-9) alternate Nodal officer produced certified copy of CDR (Ex. PW10/A) pertaining to telephone number 9999785609 for the period w.e.f. 18.12.2010 to 20.12.2010 allotted to Ankit Yadav.
5.25 Shishir Malhotra (PW-15) Nodal Officer handed over to the police the record of telephone number 8802502117 belonging to one 'Lalita Pal' vide forwarding letter (Ex. PW15/A). PW-15 is the witness to call detail records of phone number 8802502117 w.e.f 18.12.2010 to 19.12.2010 (Ex. PW15/B) and certificate u/s 65-B of Indian Evidence Act (Ex. PW15/C).
5.26 Pawan Singh (PW-24) Nodal Officer, IDEA Cellular Limited produced summoned record in respect of telephone nos. 9990704570 , 8750306018. Call detail State vs M. Rajni and Ors. - SC No. 07/2011 6/35 ID No.02406R0080602011 records of the phone number 9990704570 from the period 17.12.2010 to 20.12.2010 are (Ex.PW24/E). As per Cell ID Chart (Ex.PW24/D) and the call detail record, on 19.12.2010 w.e.f 3:19:05 p.m. to 8:21:41 p.m., phone number remained located within the range of Tower No. 54711, 54712, 54713, 11582. As per Cell ID chart (Ex.PW24/E), the towers no. 11582 and 5471 were located in the area of Maidan Garhi.
5.27 Dheeraj Mittal (PW-17) Metropolitan Magistrate conducted TIP proceedings (Ex. PW17/E). He deposed that accused P. Jyathi Murgan and S. Manish @ Anna refused to participate in the TIP. He placed on record statement of accused P. Jyathi Murgan (Ex. PW17/C) and of accused S.Manish (Ex. PW17/D) .
Statement of accused
6. On conclusion of prosecution evidence, statement of accused persons u/s 313 Cr.P.C. were recorded. Accused persons pleaded innocence and false implication.
6.1 Accused M. Rajni stated that on 19.12.2010, at about 10:00/11:00 am, her husband K. Mahesh (deceased) had left the house without disclosing where he was going. Thereafter, she remained at their house for about four-five hours and left her house between 03:00/04:00 pm after locking the door from outside. Her husband always used to keep one key with himself and she used to keep one key with herself. Both of them were working in the same office at IGNOU, Maidan Garhi. Her daughter was residing with her parents at Aaya Nagar, therefore, she used to go to meet her daughter on holidays and on every Sunday. On 19.12.2010, being Sunday, she had gone to her parents house at Aaya Nagar in the evening hours. She stayed there over night. Thereafter, on the next day she alongwith her daughter and her sister went to her house at House No. 74, Maidan Garhi, where she found that the door of the house was locked from inside. She tried to call her husband to open the door, but he did not respond. Thereafter, her landlord came there and pushed open the door. After opening the door, they found that her husband was dead. Thereafter, she called her parents and after sometime, police arrived at her house. Police took her signatures on blank State vs M. Rajni and Ors. - SC No. 07/2011 7/35 ID No.02406R0080602011 papers. On 23.12.2010, Police called her father alongwith her to come to the Police Station. Since then she was confined in custody. Accused M. Rajni further stated that she had got married with K. Mahesh (deceased), her husband with her consent and was living happy a married life with her husband and her daughter and there were no dispute between them and their relations were very cordial. She stated that co- accused P. Jyathi Murgan was also working as a Peon in her office at IGNOU and except official relations, she had no personal relation with him. Her husband used to drink liquor everyday, but she had no problem with that.
6.2 Accused S. Manish stated that he never came in contact with P. Jyathi Murgan since April, 2007 when he left the school. Thereafter, he got part time employment in the Income Tax Department, Lok Nayak Bhawan, New Delhi. He belonged to village & PO Vellapillar Kovil, Distt. Namakal, Tamilnadu and in the month of July, 2010, he went his village and came back from there on 09.12.2010. After coming from his village alongwith his mother, he rejoined his office at Lok Nayak Bhawan. He never used the phone No. 9999785609. He did not know whether it belong to Ankit Yadav as same was not recovered from his possession and he was using phone No. 9899975285, which was gifted to him by his brother S. Ganesh who purchased it on 14.11.2010 and gifted it to him on his return from his village. He tendered original bill of the mobile phone (tin No. 07120336123) and the bill in respect of the said phone (mark DX1 and DX2) respectively. S. Manish stated that he never came in contact with M. Rajni or her husband. M. Rajni came in his contact on 23.12.2010, when he was taken to the PS Mehrauli. He further stated that he never visited the house of M. Rajni and he did not know where she used to reside. He never came in contact with P. Jyathi Murgan after 2007. On 19.12.2010, he happened to visit the house of his cousin sister Smt. Mala who was residing at that time at H. No.F-2/664, Sangam Vihar, near Durga Mandir, New Delhi and he remained there State vs M. Rajni and Ors. - SC No. 07/2011 8/35 ID No.02406R0080602011 around 10:30pm. He had lunch and dinner at the house of his cousin sister and her children and from there, he straight way came to his home. Accused further stated that on 23.12.2010, he was present at his house and at about 9:30pm, police came to their house and called him outside and police forcibly took him to PS Mehrauli. His family members also followed him there to inquire about the reason of bringing him to Police Station. Police told them that they had brought him at the PS in connection with inquiry and will release him in the morning but he was not released and was falsely implicated. Police fabricated the present case on 23.12.2013 itself. As per the original record of store room, Register at Sl. 3422 in col. No. 1 and the particulars alongwith particulars of FIR in col No. 2 and name of police official is mentioned in col. No. 3 and other particulars of the present case are mentioned in col. No. 4 and in col. No. 5 and 6 some endorsement is made regarding the samples sent to FSL Rohini and the same was verified and signed by SHO PS Mehrauli on 09.04.2013, received by his sister on the application under RTI Act. The said record is collectively mark DX3. 6.3 Accused further stated that on 23.12.2010 while he was present in the police station Mehrauli, some persons were brought by the police and police officials pointed at him and showed him to those persons, which were later on discovered by him as the landlady of the house and her son, where M. Rajni was said to be residing and those police officials showed him to those people on that day. Thereafter on 26.12.2010, he was taken by the police to the place of that lady and her son at Maidan Garhi and produced him before them and again the police officials asked the lady and her son that they had to identify him in the court and the police gave his name, parentage and address to those persons. On 03.1.2011 police of PS Mehrauli produced him before a Magistrate's Court for the purpose of identification where he refused to participate stating that police people had already shown him to the witnesses. He stated that he had nothing to do with the commission of abovesaid State vs M. Rajni and Ors. - SC No. 07/2011 9/35 ID No.02406R0080602011 offence or in any way connected with the present case. Accused stated that he had inadvertently mentioned the date of his being taken away by Police as 24.12.2010 instead of 23.12.2010.
6.4 Accused P. Jyathi Murgan stated that he never had any relationship with the co accused M.Rajni and she never came across him while working at IGNOU as he hardly worked for six months. He further stated that there were more than hundreds employees who do not come in contact with each other, except very few persons. He further stated that he had never met the husband of M. Rajni and never visited their house and did not know where they used to reside. He left his school in the year 2007 and since then he never had any contact with S. Manish either on phone or personally. He stated that police lifted him from his residence on 23.12.2010 in the presence of his family members. His family members went to the police station to inquire into the matter and they were told to go back and rest at home as it was a formal inquiry. On the next day, he was falsely implicated in the present case. Legal position
7. Before analysis of the evidence, relevant legal position may be noted. Cardinal principle always kept in view in our system of administration of justice in a criminal case, is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the production of evidence as may show him to be guilty of the offence with which he is charged. Burden of proving the guilt of the accused is upon the prosecution and unless it relives itself of that burden, the Courts cannot record a finding of the guilty of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is, not positively proved to be true, the accused would be entitled to acquittal. Court has to test the evidence for its inherent consistency and the inherent probability of the story. There must be a string that should join the evidence of all the State vs M. Rajni and Ors. - SC No. 07/2011 10/35 ID No.02406R0080602011 witnesses and thereby satisfying the test of consistency in evidence amongst the witnesses.
8. In "Sharad Birdhichand Sarda Vs. State of Maharashtra's"1 it was noted that it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. Facts established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; that the circumstances should be of a conclusive nature and tendency; that they should exclude every possible hypothesis except the one to be proved; and that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
9. In Majendran Langeswaran Vs. State (NCT of Delhi) 2 some of the recent decisions of Supreme Court were considered, where conviction was based on the circumstantial evidence. It was noted that in the case of "G. Parshwanath Vs. State of Karnataka"3 , Apex Court elaborately dealt with the subject and held that "In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the Court has to judge the evidence proves a particular fact and if that 1AIR 1984 SC 1622 2AIR 2013 Supreme Court 2790 3AIR 2010 SC 2914 State vs M. Rajni and Ors. - SC No. 07/2011 11/35 ID No.02406R0080602011 fact is proved, the question whether that fact leads to an inference of guilt of the accused persons should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the Court must have regard to the common course of natural events and to human conduct and their relations to the facts of particular case. The Court thereafter has to consider the effect of proved facts. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the Court."
10. In the case of "Rajendra Pralhadrao Wasnik Vs. State of Maharashtra"4 while dealing with the case based on circumstantial evidence, Apex Court observed 4 (2012) 4 SCC 37 State vs M. Rajni and Ors. - SC No. 07/2011 12/35 ID No.02406R0080602011 that "It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete as not to leave any substantial doubt in the mind of the Court. The evidence should lead to the conclusion which is inconsistent with the innocence of the accused and the only possibility is that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person."
11. In the case of "Brajendrasingh Vs. State of M.P."5, Hon'ble Supreme Court while reiterating the above principles further added that "furthermore, the rule which needs to be observed by the Court while dealing with the cases of circumstantial evidence is that best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The Court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of out criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial. As discussed herein above, there is no dispute with regard to the legal proposition that conviction can be based solely on circumstantial evidence, but it should be tested on 5(2012) 4 SCC 289 State vs M. Rajni and Ors. - SC No. 07/2011 13/35 ID No.02406R0080602011 the touchstone of law relating to circumstantial evidence as laid down by Apex Court. In such a case, all circumstances must lead to the conclusion that the accused is the only one who has committed the crime and none else."
12. It is pertinent to note that Court is required to consider the manner of giving evidence, surrounding circumstances, probabilities, motive for giving true or false evidence, intrinsic merit of the evidence, how it stands with other evidence adduced. Reliability of witnesses depends upon the accuracy of the witnesses, original observations of the evidence which he described; correctness and extent of what witnesses remember and their veracity. Court has to consider whether, in the circumstances of the case, it is possible to believe presence of witnesses at the scene and whether there is anything inherently improbable or unreliable in his evidence. Their conduct during occurrence and subsequently has to be considered & examined. Discrepancies which relate to material points cannot be lightly glossed over but have to be assessed seriously. Trifling discrepancies can be ignored as natural discrepancies among honest witnesses. Broad facts of the case and not minor details have to be considered in weighing the evidence. Court has to weigh the evidence carefully in measuring its worth or worthlessness. In a case depending largely upon circumstantial evidence, there is a danger that conjecture or suspicion may take place of legal proof. Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they may be, to take the place of proof. Whether a chain is complete or not would depend on the facts of each case emanating from the evidence.
Discussion of evidence
13. On the anvil of the tests noticed above, now I advert to incriminating circumstances relied upon by the prosecution to establish guilt of the accused. State vs M. Rajni and Ors. - SC No. 07/2011 14/35
ID No.02406R0080602011 Admittedly, no direct evidence is available in the present case and prosecution in order to secure the conviction of the accused persons has relied upon circumstances. Homicide
14. On 23.12.2010, Doctor Asit Kumar Skary (PW-25) conducted postmortem on the dead body of K. Mahesh (deceased). Autopsy surgeon (PW-25) on examination, found rigor mortis all over the body. Postmortem lividity was present over the front of trunk and right side of back. Marbling was present over the left side of chest and greenish dis-colouration were present below the ligature mark on the neck. Both eyes and mouth were closed, both conjunctive and face were congested. Lip and nail were bluish in colour. PW-25 noted ante-mortem injuries i.e. a ligature mark, completely encircling dark brown parchmentised ligature mark was present transversely over middle third of neck. The ligature mark was situated 8 cm below the chin and 9 cm above the supra sternal notch over anterior mid line of neck and was 8 cm from right mastoid bone and 8cm from left mastoid bone over respective lateral side of neck, 3cm in width over anterior mid line. There was a linear abrasion brownish in colour 7 cm in length over left lateral aspect of neck situated 1.5cm above and parallel to the ligature mark. On dissection of neck, autopsy surgeon found that there was sub-facial hemorrhage underneath the ligature mark. Muscle and vessels of the neck were intact and thyrohyoid complex was intact. Tracheal mucosa was congested. A brownish abrasion of size 3x1cm was present over right shoulder and Multiple brownish linear abrasion (5 in number) of size varying from 1.5cm were present over left cheek and left lateral aspect of neck. On internal examination, petechial hemorrhages were present all over the sub-scalp. Both lunge parenchyma were congested. Stomach was empty and mucosa was normal. Liver & both kidneys were congested. Viscera for toxicological analysis, blood in gauze and hair sample were preserved, sealed and handed over to police with sample seal. Autopsy surgeon (PW-25) commenced State vs M. Rajni and Ors. - SC No. 07/2011 15/35 ID No.02406R0080602011 postmortem on the dead body of K. Mahesh i.e. at 12:20 pm on 23.12.2010. PW-25 stated that it took about one hour in completing the postmortem examination and that the timing of death could not be ascertained exactly. PW-25 deposed that variation of timing of death could be 6 hours earlier and deposed that the asphyxia could be caused by strangulation, smothering, throttling , hanging or suffocation.
15. Time since death of deceased from the time of Post mortem was opined by autopsy surgeon as "4 days earlier". Autopsy Surgeon (PW25) deposed that 11.01.2011 the IO had shown to him two sealed parcel containing green colour chunni and white naada and after seeing those two items doctor had opined that death could be possible with chunni and naada. Doctor opined that the death of K. Mahesh (deceased) was due to "asphyxia due to strangulation". Doctor opined that the ligature marks present over the neck of the deceased could be possible with the chunni and naada and the strangulation as found in this case could be possible with 'chunni' and 'naada' submitted by the IO. Doctor (PW-25) admitted in the cross examination, that the ligature marks could have been possible due to strangulation and throttling. Thus, the postmortem report as well as the opinion of the PW-25 shows that ligature marks were found on the neck of K. Mahesh (deceased), which were caused by naada and chunni proving that it is clear case of homicide. Now the next point for consideration is whether prosecution has established any 'nexus' of accused persons with the homicide.
Last seen circumstance
16. To prove its case, first circumstance relied upon by Learned Addl PP for the State is 'last seen evidence'. It is submitted that Azad Singh (PW-3) and his mother Smt. Maya Devi (PW-5), the landlady of the house No 74-A, Maidan Gari, New Delhi, wherein accused M. Rajni was residing with her husband-Mahesh (deceased). Dead body was found at about 01:00 pm on 20.12.2010. Both these witnesses deposed that State vs M. Rajni and Ors. - SC No. 07/2011 16/35 ID No.02406R0080602011 they had seen accused persons P. Jyathi Murgan and S. Manish while they were going inside the house of M. Rajni and Mahesh (deceased) and when they went out of the house and thereafter, accused M. Rajni left the house after sometime during the evening hours of 19.12.2010. Learned counsel submits that house owner's son i.e. Azad Singh & his mother Maya Devi are interested witness. It is urged that prosecution has failed to prove that all the three accused were seen together with the deceased lastly in the premises of H. No. 74, Maidan Garhi, from where dead body was found.
17. To appreciate the submissions, it is pertinent to note crux of the evidence adduced by material witnesses. PW 5 deposed that two people came and knocked the door at the ground floor. Accused M. Rajni came down stairs at first floor to receive them and opened the door of the main gate at ground floor and took them upstairs but in site plan (Ex. PW22/A) no door at the ground floor has been shown. Neither the position of PW5 has been shown at the ground floor from the place, where she had allegedly seen all the three accused in site plan. In the same manner, no position of PW 3 has been shown either at first floor or ground floor, therefore, claim of the prosecution that they had seen all the three accused together in the premises is doubtful. It is submitted that Azad Singh (PW3) stated that accused P. Jyathi Murgan was working in IGNOU where he was also working and had seen accused P. Jyathi Murgan at working place on several occasion. Therefore, if PW5 had at all seen accused P. Jyathi Murgan alongwith other accused Manish in the premises of H. No. 74A, Maidan Garhi, where the alleged crime took place, then he would have definitely told the police that the one of the accused who had come on 19.12.2010 was working in IGNOU and he saw him in his premises on 19.12.2010. It is submitted that no description of the accused persons was given by the PW 3 and PW 5 on 20.12.2010, who claimed to seen the accused in their premises House No. 74A, Maidan Garhi therefore, last seen theory becomes doubtful. It is urged that moving of the TIP State vs M. Rajni and Ors. - SC No. 07/2011 17/35 ID No.02406R0080602011 application was to create an evidence. Even Maya Devi (PW-5) admitted that she alongwith her son Azad (PW-3) went to the police station and saw both the accused, which clearly indicates that Police had already shown the accused persons to the PWs in the Police Station before moving an application for the TIP. It is urged that accused were illegally detained and they remained in police custody. It is contended that neither PW3 nor PW5 ever stated that the deceased was seen in the company of the accused persons before his death, therefore, the last seen circumstance is not proved by the prosecution.
18. Learned counsel for accused P. Jyathi Murgan submits that Maya Devi (PW 5) stated to the police that M. Rajni had told her that her brothers had come and later on she stated that the friends of her husband had come. Maya Devi (PW 5), stated to the police that M. Rajni told her that they would go back within 1 or 2 hours whereas she again stated that they would go after some time. She stated to the police that M. Rajni went to her parents home at Aya Nagar at 6:00 PM whereas, lateron she stated to the police that Rajni went after 15 minutes. Maya Devi (PW 5) stated that she had not seen the accused persons carrying bag on their back whereas her son stated he had seen bag on the back of one of the accused. Maya Devi (PW 5), told in the court that when she was not in the house, doors were opened by her daughter whereas, she had told to the police that either she opened the door or the same were opened by the person whose guests come. Maya Devi (PW 5) deposed that accused persons used to visit accused M. Rajni, who used to introduce them to her as her brother, whereas, she stated that she had seen them for the first time on 19.12.2010 at about 4:30 PM. It is unnatural that the husband of the Maya Devi (PW 5) namely Ramphal being the owner and karta of the family, was not at all informed by the Maya Devi on 20.12.2010, if he was not present at the spot. It is also unnatural that the husband of Maya Devi (PW-5)-Ramphal has intentionally being kept out of State vs M. Rajni and Ors. - SC No. 07/2011 18/35 ID No.02406R0080602011 investigation conducted by the IO of the case and no reason is assigned for the same. It is significant to note that land lady Maya Devi (PW-5) admitted in her chief that she had been called to the police station on 25.12.2010 by the police where she went with her son Azad Singh and returned after 20 minutes. PW-5 admitted that in the police station accused persons were shown to her by the police officials. According to the accused persons, they refused to participate in the TIP as they had been shown to the witnesses by the police with consequence of identifying them. It was urged that TIP proceedings was nothing but a fake exercise intentionally done by the IO to fill the gap of the investigation and prove the case against the innocent accused persons.
19. It is not clear why IO did not record the statement of the daughter of PW 5 Maya Devi, who was present there throughout the day at the place of occurrence on 19.12.010 and 20.12.2010 whereas, Maya Devi herself has stated that in her absence her daughter used to open the main entry gates. Maya Devi (PW 5) further deposed in her statement that the sister of Rajni had also come on the scene of occurrence with the daughter of M. Rajni but police did not record her statement. Maya Devi (PW 5), stated in the court that she was not interrogated on the point as to which place she was standing and saw the accused persons while come in and going out of the premises. Maya Devi (PW 5), as well as Azad Singh (PW 3) have admitted that neither they gave to the police descriptions of both the accused persons nor the IO interrogated them on this point. Maya Devi (PW 5) in her statement informed the police that K. Mahesh (deceased) was addicted to drinking and she used to request him not to drink, whereas, she stated to the police that she did not know whether K. Mahesh (deceased) was addicted to drinking or not as she did not go in his room but he was a good man. She further stated that she went to STD shop with her own mobile to call her son Azad Singh through the shopkeeper whereas there were number of persons on the second floor of her house. Maya Devi (PW 5) told to the police that accused M. State vs M. Rajni and Ors. - SC No. 07/2011 19/35 ID No.02406R0080602011 Rajni had gone without saying anything to her on the day of occurrence whereas, Azad Singh (PW-3) stated that M. Rajni while going had told his mother that she was going to Aya Nagar to her parents.
20. Azad Singh (PW-3) stated that he had seen accused P. Jyathi Murgan and S. Manish for the first time on 19.12.2010. In the Court, he deposed that he had seen accused P. Jyathi Murgan in IGNOU campus. He had not met the police on 19.12.2010 whereas his statement was recorded on 20.12.2010 and 25.12.2010 and inquiries were made from him on 19.12.2010. Azad Singh (PW-3) stated in the Court that he had stated in his statement dated 20.12.2010, that if accused persons were shown to him, he would identify them, but regarding this, there is nothing on record. He further stated that he had talked with M. Rajni only once when she had come to take premises on the second floor on rent and he used to ask her husband not to drink liquor.
21. Learned counsel appearing for the accused Jyathi Murgan further submitted that there is a great distance between 'may be true' and 'must be true' which must be covered by legal, reliable and unimpeachable evidence. Gauri Shankar (PW-6) employee of IGNOU, who was friend of K. Mahesh (deceased) deposed that when he visited 74, Maidan Garhi, main doors of the house were opened and had seen back of only a lady. As per statement of the PW-3 and PW-5, main entry gate of the house remained closed all the time and it was opened only when someone came and knocked. Other PWs including police officials as well as employees of the IGNOU have stated that whenever they went to the scene of occurrence they always found the main entry gate of the house opened. Landlady Maya Devi could not say that after leaving the house by accused, the main entry gate were locked from inside by any of her family members. It reflects that the doors of the house used to remain open and Maya Devi (PW-5) was unaware of the visitors coming and going in the house there being State vs M. Rajni and Ors. - SC No. 07/2011 20/35 ID No.02406R0080602011 tenants in the premises.
22. It is submitted that during investigation and during trial before this Court, unimpeachable and convincing material establishing the circumstances of last seen theory has not been established. He pointed out that Maya Devi (PW-3) has deposed that there was no light in the stairs leading from ground floor to second floor where K. Mahesh (deceased ) was residing and IO also stated that there was no light on the stairs. In the absence of light on the stairs, landlady Maya Devi (PW-5) could not have seen accused persons going in and going out in the evening of 19.12.2010. It is argued that in any case, accused P. Jyathi Murgan and S. Manish cannot be covered by last seen circumstances because as per prosecution version, accused M. Rajni was the last person to go from the rented premises and she stated that when she left the rented premises on 19.12.2010, her husband K. Mahesh had not come till then. He argued that moreover body of K. Mahesh (deceased) was found wearing jeans which also indicates that the K. Mahesh (deceased) was not at home for the entire day and there is strong possibility that the deceased K. Mahesh might have gone outside on the day of occurrence being a weekend and would have returned after accused M. Rajni left her rented premises. PW-3 and PW-5 have no where stated in their testimonies that K. Mahesh (deceased) was seen by them at any point of time in the rented premises on 19.12.2010 i.e. the date of incident. It is then surmise and conjecture only that the deceased K. Mahesh was inside the room on the whole day or at the time accused M. Rajni was available there.
23. It has already been noted that in a case of circumstantial evidence based on the last seen evidence, there should not be long and unreasonable gap between seeing the accused and deceased together and discovering the dead body and every possibility of any other person having been with the deceased except accused has to be ruled out. In the present case, there is a huge gap of 18-19 hours State vs M. Rajni and Ors. - SC No. 07/2011 21/35 ID No.02406R0080602011 and entry of any other person at the scene of occurrence or committing the crime cannot be totally ruled out. It is urged that circumstances do not point out towards the guilt of the accused, without any other inference being probable therefore, accused must be given the benefit of doubt.
24. Sh. Basoya, Learned counsel for accused M. Rajni reiterated the point that there is no witness who has deposed that K. Mahesh (deceased) was seen when accused M. Rajni left for her parents' home in Aya Nagar, New Delhi on 19.12.2010. He submitted that in similar circumstances, in a case reported as "Harender Narain Singh etc. Vs. State of Bihar"6 , it was observed that "There is another vital defect in the prosecution case. The prosecution failed to produce any evidence that the deceased Jagia Devi was taken to the hospital for treatment by Ram Nath Singh and other accused persons while she was alive and that she was admitted to the dispensary of Dr. Harendra Narain Singh for treatment, at a time when she was alive. In the absence of any Such evidence there are various possibilities and probabilities, one of them being that the deceased may have been brought to the dispensary for medical assistance after she was found to be strangulated by someone. There is further no evidence of the fact that when the deceased was inside the dispensary no other person had access to her except the appellants. In the absence of any such evidence it would not be legitimate to assume that the deceased was strangulated in the dispensary by Ram Nath Singh with the connivance of Dr. Harendra Narain Singh. Merely because the appellants failed to raise any such plea in their defense does not lend any support to the prosecution case. The prosecution has to succeed on the basis of its own evidence and it cannot rely on the absence of defense to sustain the guilt as there is no justification for raising such assumption against the appellants. The circumstances established by the prosecution are not sufficient to conclusively point to the appellants as the perpetrator of the crime or to rule out the hypothesis of their innocence. Since the prosecution failed to prove the necessary facts showing that the deceased while alive was last seen in the company of the appellants or that the dead body which was carried on the ekka was that of the deceased Jagia Devi, the High Court was not justified in drawing adverse inference for completing the chain of circumstances to uphold the appellant's conviction merely on the appellant's false explanation in defense."
6(1991) 3 SCC 609 State vs M. Rajni and Ors. - SC No. 07/2011 22/35 ID No.02406R0080602011
25. In "State vs Akhlaq & anr. and others"7, while dealing with the last seen theory, in a case where accused was charged for murdering his wife, it was observed that the last seen evidence even if, believed cannot be pressed into service by the prosecution on account of long time gap. In that case, PW had seen appellant lastly leaving the premises at 07:00am on the day of incident and the time gap between the last seen and time of discovery of body was 8 hours and in those circumstances, it was opined that considerable time lag coupled with the possibility of access to others weakened the prosecution case. In "Ramreddy Rajesh Khanna Reddy" 8, it was opined that even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the Courts should look for some corroboration.
26. In "State of Goa vs Sanjay Thakran"9 Supreme Court noted general principles with reference to the principles of last seen together in "Bodhraj vs State of J & K" 10 that "The last seen theory comes into play where the time gate between the point of time when the accused and the deceased were seen last alive and when deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible . It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of 72011 184, DLT 265 8 (2006) 10 SCC 172 9 (2007) 3 SCC 755, 10 (2002) 8 SCC 45 State vs M. Rajni and Ors. - SC No. 07/2011 23/35 ID No.02406R0080602011 guilt in those cases"
27. Studied scrutiny of the material on record relied by the prosecution, shows that none of the last seen PWs have deposed in their testimony that they had seen together accused M. Rajni, P. Jyathi Murgan and S.Manish with K. Mahesh (deceased) before his dead body was found from the room. Moreover, as per the case of prosecution, accused M. Rajni left for her parents' home at Aaya Nagar, Delhi on 19.12.2010 at about 06:00/06:30pm and came back to her rented accommodation on next day 20.12.2010 at around 1:00pm and thus, there is clearly a gap of more than 18 hours and therefore, possibility of any other person being author of this offence of murder cannot be excluded , which clearly rules out the possibility of last seen theory in present case. Conjecture and surmises, cannot take the place of legal proof. Howsoever, strong presumption or suspicion may be but the same cannot take the place of legal evidence. In view of the foregoing reasons, this Court is in agreement with the submissions advanced by Learned defence counsels that prosecution has failed to establish that all the accused persons were seen last together with K. Mahesh (deceased), before he was found dead on 20.12.2010 and time gap of more than about 18 hours between last seeing of accused persons at the place of occurrence and time of discovery of dead body, there coupled with the possibility of access to others failed to cogently establish last seen circumstance. Thus, this Court finds last seen circumstance is not proved against any of the accused.
Location of mobile phones of accused persons
28. Learned Addl. PP submits that the call detail records of the mobile phone used by accused persons show the presence of accused persons at the same location. It is submitted that mobile phone number 8750306018 being used by accused M. Rajni was registered in the name of Ms. Lalita Pal, who was not traceable. Mobile Phone number 8802502117 used by accused P. Jyathi Murgan was registered in the name of State vs M. Rajni and Ors. - SC No. 07/2011 24/35 ID No.02406R0080602011 M. Natrajan (PW-1) and mobile phone number 9999785609 used by accused S. Manish, was registered in the name of Ankit Yadav (PW-7).
29. Per contra, Learned counsel for accused S. Manish submitted mobile no. 9999785609 was not issued in name of Manish. PW- Ankit Yadav who stated that this mobile number was in his name and he had given said phone to Manish. It is further submitted that his testimony was not believable and trustworthy because applicant accused S. Manish was having his own number 9899975285 in his name and accused had in his statement given the bill of the said mobile number, which he was using. Learned counsel argued that even if it is presumed but not considered for the sake of argument that the applicant has used the said number. It is submitted that this mobile number 8802502117 belonged to the one Mrs. Lalita Pal who was never produced as a witness before this Court and this circumstance is not conclusively proved that the accused Manish was in touch with co accused P. Jyathi Murgan before or after commission of alleged crime. It is submitted that none of the SIM cards as alleged, were exhibited which suggest the alleged recovery of the SIMs are planted by the police to support their case. Two SIM cards are allegedly recovered from M. Rajni on 25.12.2010 having mobile number 999704570 (SIM number two not given) and one SIM was allegedly recovered from P. Jyathi Murgan having mobile number 8802502117 and two SIMs were recovered from S.Manish having mobile number 9999785609 (SIM number two not given) .
30. During investigation, IO made efforts to link accused persons through CDRs of the mobile nos. 9999785609, 9990704570, 8750306018, seized from the accused persons, their routes and movements within specific towers. It is submitted that IO did not inquire into the identity and authenticity of the actual owner of the mobile and linked the same with the accused P. Jyathi Murgan without any evidence. Prosecution examined PW-1 and PW-2, college friends of the accused P. Jyathi State vs M. Rajni and Ors. - SC No. 07/2011 25/35 ID No.02406R0080602011 Murgan, who stated that they were in regular touch through mobile with him. Learned counsel argued that these two witnesses could not prove their interaction with the accused P. Jyathi Murgan through mobile phone and prosecution could not being any material on record to show that accused P. Jyathi Murgan and S. Manish were college friends or were having relations with each other during or prior to the incident. No independent witness or material has been brought on record to corroborate the relation between the two accused persons and accused M. Rajni. Prosecution has shown movements of the aforesaid mobile nos. under the mobile towers of the specific areas around the Maidan Garhi and connecting to the Sewa Nagar, and places of the accused persons. PW-15 (nodal officer Aircel) has categorical admitted that he is not technical expert and thus it can be safely inferred that the information provided by him cannot be scientific and conclusive for the purpose of this case. PW-15 has admitted that he did not know the range of the towers and the exact location and direction of the SIM/mobile within the range of the tower. He has further admitted that the entire details could not be given to the police because the server was technically defective as up-gradation work was going on. PW 15 has further admitted that the information/data are kept in excel format which are capable of being edited and thus the data given to the IO is not credible because there is every probability that the data in question had been obtained by the IO at his instance and being altered. The Supreme Court has clearly observed that the electronic evidence and CDRs as well as mobile tower records are not reliable as they vary under difference circumstances and no final opinion can be formed on such data.
31. In "Rohit Dhingra & Another Vs State"11 our High Court observed as under that, 11Criminal appeal 926/2011 decided on 03.02.2012 State vs M. Rajni and Ors. - SC No. 07/2011 26/35 ID No.02406R0080602011 " The further inference drawn by the trial court was that neither of the accused could disprove their presence. It was therefore, deduced that the prosecution had proved the possibility of their being near the crime scene between 8.30 and 10.00 PM on the night of the incident i.e. 10.01.2008. The inference drawn on the basis of mobile tower details in the documents (Ex. PW16/C and Ex. PW-16/D) could not have been held against them. That someone could have been present in the vicinity of scene of crime is a matter of probability. However, for the Court to conclude that he was actually present, the prosecution had to establish - by application of the only relevant rule of evidence in this case i.e. that only the accused and none else was present at the scene of crime. In other words, in the absence of positive material proving beyond reasonable doubt that the accused was at the scene of occurrence, the Trial Court could not have concluded that the appellants were so present in this case and then shifted the burden (not merely the onus) of proving that they were not at that place at the time when offence was committed."
32. Considering the evidence on record, in the light of afore-noted observations, this Court finds that it has not been proved by the prosecution beyond reasonable doubts that only accused M. Rajni was present at the time and place of offence and no other person could have been the author of offence of murder as alleged by the prosecution. This Court finds that documentary evidence as regards details of alleged calls, does not helps and further the case of prosecution in any way. Locking of the door from outside with the help of chunni
33. Learned Addl PP submits that FSL report (Ex. PW27/B) prepared by V. Laxminarsiman, Senior Scientific Officer, FSL shows that the door of the room wherein dead body was found could be put to locking position from outside the room through the adjacent window by using chunni. This Court finds that this circumstance has not been established.
34. In this regard, it is significant to note at out outset contradictions in the testimonies of SI Vijay Pal Singh (PW 12), SI Kailash (PW26) and IO/Inspector Pankaj Singh (PW27), as regards this circumstance. PW 12 SI Vijay Pal Singh deposed that there was only one 'chitkani' on the door at the upper side of the door and the said fact State vs M. Rajni and Ors. - SC No. 07/2011 27/35 ID No.02406R0080602011 is corroborated by the SI Kailash (PW26) in his cross examination wherein he stated that there was only one 'chitkani' on the door on the upper side of the door, whereas Inspector. Pankaj Singh (PW 27) in his cross examination has deposed that the door was having two chitkanis, one on the upper side and other in the middle of the door and that the upper side chitkani was locked. PW-26 admitted that he could not find 'chitkani' of the broken door. He made efforts to trace the same and made inquiries. There are two different versions. It is matter of record that scientific officer V. Lakshmi Narsimhan (PW28) visited the spot much later in the month of march 2011, almost about three months after the incident, so there is a possibility of manipulating and changing the bolt at the middle of the door.
35. Thus, in the absence of any photographs of scene of crime, soon after the incident, by Investigating Officer, crime team or any other satisfactory evidence substantiating the circumstance against accused, this Court finds that prosecution has failed to cogently establish the factum of locking of door from outside the room after commission of the alleged offence by the accused M. Rajni with the help of a chunni from an adjoining window.
Delay in lodging the FIR
36. Learned counsel for accused S. Manish argued that DD No. 17A (Ex. PW13/A) was recorded on the basis of telephonic call made on 100 number by Ramphal S/o of Budh Ram, who is landlord and father of Azad Singh (PW-3) was not examined as witness by the police. No. explanation in this regard is furnished by IO. Police reached at the spot at about 03.50 pm on 20/12/2010 and noticed ligature mark on the neck of deceased. Maya Devi (PW-3) and Azad Singh (PW-5) stated that two people had come on 19.12.2010 at about 04.00 pm who were received by accused M. Rajni, who took them upstairs. Despite the fact, came to the notice of police, police chose not to register the FIR, which casts doubts on the prosecution version. State vs M. Rajni and Ors. - SC No. 07/2011 28/35
ID No.02406R0080602011
37. Police took over in their custody the dead body of the deceased at about 03.50 p.m. on 20.12.2010 but, the dead body was received in the AIIMS at 09.24 PM, when it was declared 'brought dead'. It is argued that there is an inordinate and unexplained delay of almost 6 hours in sending the dead body to hospital and distance between Maidangarhi to AIIMS hospital is less than 10 Kms. wireless message was flashed through DCP office on 21.12.2010 at 10.45 AM for information to legal heir of K. Mahesh (deceased) regarding preservation of dead body for 24 hours for postmortem. It is submitted that in the application sent to AIIMS, police deliberately extended the time for preservation of dead body for 48 hours (Ex.PW26/E) and therefore, this fact casts a serious doubt on the case, because the legal hairs of the diseased Smt. M. Rajni, was already present and available with the police. It is argued that this was done with a view to the further delay the registration of FIR and the postmortem was got conducted on 23.12.2010 at about 12:20pm (noon) and the IO was present in the AIIMS hospital for handing over the dead body to the relative of deceased but he deliberately delayed in registration of FIR, which casts a shadow of doubt on the case of prosecution.
38. Learned counsel further urged that prosecution has claimed registration of FIR on 25.12.2010 on the basis of DD No. 17A dated 20.12.2010, after receiving the postmortem report from AIIMS on 25.12.2010 whereas, entry in register No. 19 of malkhana at sl. no. 3422, whereby IO deposited hair sample, blood gauze etc. in column-II, reflects that DD No. 17A, dated 20.12.2010 P.S. Mehrauli, FIR No. 551/10 u/s 302 IPC and in column-III, date of deposit of above articles by SI Kailash Chand is noted as 23.12.2010. Meaning thereby, that FIR in this case was registered on 23.12.2010 and not on 25.12.2010. It is argued that prosecution deliberately made HC Zakir Hussain a witness, who has refused that he had written DD-17A. He deposed that on 20.12.2010, he was on duty in the night shift and DD No. 17A was written by State vs M. Rajni and Ors. - SC No. 07/2011 29/35 ID No.02406R0080602011 HC Rameshwar. In the Control Room Record (Ex.PW13/A), it is clearly mentioned that, "Information received on 20.12.2010 at 15.20 hours [3.20PM]-H.No.74 Near Shiv Mandir Maidan Garhi Ramphal S/o Budhram. 'Hamare Kirayedar Ki Death Ho Gayi Rat Jayada Daru Pee li thee" subsequently, after receiving the information, PCR Van No. 73 had reached at the spot and informed at 16.32(hours) that call was true and next information noted therein is that "moka Par (C/Room Info) 20.12.2010 at 16.44 (Hours-3.44PM) IO NE Check Kiya Hai Gale Par 2 Nisan Mile Hai Rassi/Taar Se Gala Dabane K Lagte Hai Jo Neele Pade Hue Hai Shirt K Neeche Se Dikh Nahi Rahe They Crime Team Ki Wait Hai." and HC Rajesh (PW-4) in his examination-in-chief admitted that he had seen ligature mark on the body of the deceased. It is argued that malafide intention of police is apparent because M. Rajni, wife of the deceased was available with them and they had recorded her statement on 20.12.2010. This Court finds merit in the submissions advanced by Learned counsel that delay in lodging the FIR despite the fact that ligature mark had been noted by the police on 20.12.2010 itself, further adds to the suspicion in the story of prosecution.
Recoveries of articles doubtful
39. As per the case of prosecution, after the arrest of the accused persons, IO recorded their disclosure statement and then, proceeded to the place of recovery i.e. Ganda Naala near Jawaharlal Lal Nehru Stadium and at the pointing out of the accused persons recovered one plastic bag wherein one half bottle of Premium Aristocrat, one Nada of white color and one pillow were found. Learned counsel for accused S. Manish submitted that the accused Manish and P. Jyathi Murgan were allegedly arrested by the police on 25.12.2010 on the pointing out of accused M. Rajni near Lodhi Colony flyover Sewa Nagar around 10.15 pm midnight where the police interrogated them and in pursuant to their disclosures jointly got recovered one nara, pillow and empty bottle from ganda nala Sewa Nagar from an open place. It is State vs M. Rajni and Ors. - SC No. 07/2011 30/35 ID No.02406R0080602011 contended that IO/Pankaj Singh (PW-27) deposed that W/Constable Rajesh (PW-8) also joined for investigation, as accused M. Rajni was a lady but the testimony of PW-8 shows that she had never gone for investigation alongwith Rajni on whose pointing out the arrest of the accused Manish and P. Jyathi Murgan was got effected. It is urged that these facts make the whole prosecution story doubtful. Recovery was effected from an open place after gap of six days from the alleged day of incident, therefore, this fact itself indicates that the recovery is unreliable, which was allegedly made jointly by both the accused. Hence, this circumstance is not conclusively and convincingly established by the prosecution.
40. Learned counsel for accused P. Jyathi Murgan urged that IO has not been able to clarify as to why no independent witness joined at the time of arrest of the accused P. Jyathi Murgan at the spot i.e. Lodhi Colony Sewa Nagar, when admittedly, there was no dearth of passersby. It is argued that when IO proceeded towards the spot of arrest, he could have asked and taken alongwith him, father of the accused M. Rajni and son of the landlady, who allegedly witnessed the arrest of the accused persons, but he neither told them nor made efforts to join any independent witness. He submits that the IO arrested accused P. Jyathi Murgan at 10:15 pm on 25.12.2010, when the father of the accused P. Jyathi Murgan was not present but the signature of the father of the accused P. Jyathi Murgan figures on arrest memo (Ex. PW-26/S). IO in the cross examination admitted that he obtained signature of the father of the accused P. Jyathi Murgan in the police station later on. IO could not clarify under which provision he was bound to obtain or obtained the signature of the father of the accused P. Jyathi Murgan on the arrest memo, after the arrest of the accused P. Jyathi Murgan. It is stressed that it indicates that arrest is nothing but a fraud upon accused P. Jyathi Murgan who was lifted by the police from his residence on 23.12.2010. After two days of illegal detention in the police station, he was implicated State vs M. Rajni and Ors. - SC No. 07/2011 31/35 ID No.02406R0080602011 in the present case by the IO. Prosecution has relied on the articles seized by the police on 25.12.2010 during the course of investigation which includes mobile phone and chunni of accused M. Rajni and that chunni was used for strangulation of the deceased but it has failed to establish the same. It it not proved by the prosecution that the seized chunni was actually used for committing the alleged offence. Now, the mobile phone is stated to have been seized with two SIM cards of 'Airtel' and 'Idea' phone having IMEI Nos. 910048508454574 and 910048508454582 respectively however, call records of only one SIM card was filed on record by the police. It is argued that such incomplete and shoddy investigation raises doubts which cannot be overlooked.
41. Admittedly, no independent or public witness has been joined at the time of the alleged recovery of the clothes and there is no compliance of Section 100(4) of Cr.P.C 1973. Prosecution was required to establish on the facts and circumstances of each case that meeting the requirements of section 100 Cr.PC pertaining to the association of two or more independent and respectable witnesses with the conducting search was not possible. If the prosecution fails to discharge this onus, its case would be rendered shaky and unworthy of acceptance unless a formidable set of reasons are shown to exist justifying the infraction of express provisions of law contained in Section 100 and the Court will be reluctant to uphold the prosecution case based on recovery made as a result of a search not witnessed by at least two independent and respectable persons, unless it was unreasonable and impracticable to procure the presence of such witnesses. IO admitted in his cross examination that he did no ask any one to joined the investigation at the time of recovery. IO stated that he did not take into possession and seized the plastic bag wherein all the three seized articles were lying and did not state as to why he did so. IO has failed to establish and prove the recovery and seizure of the aforesaid articles allegedly used to commit the murder State vs M. Rajni and Ors. - SC No. 07/2011 32/35 ID No.02406R0080602011 of K. Mahesh (deceased). To sum up, this Court finds that recovery of articles i.e. bottle, naada, pillow from a place meant to keep garbage and a place which is accessible to everyone and rag-pickers is not trustworthy and reliable. Conspiracy
42. On appreciation of entire evidence on record, this Court finds that the charge framed under section 120-B IPC is not sustainable against any of the accused. To establish conspiracy amongst the aforesaid three accused persons, ingredients of conspiracy had to be established i.e. when, how and where the accused persons had their meetings, and what overt art or steps were taken by them in furtherance of their designs to commit the offence under section 302 IPC. Allegations of purchasing of poisons by the accused S. Manish and using lizard as a poison to kill K. Mahesh by the accused M. Rajni have not at all been proved. In the present case, elements of conspiracy have not been established and there is nothing on record to show that the accused persons had any meeting amongst themselves in furtherance of the commission of crime.
Motive
43. In a case based on circumstantial evidence, motive assumes great importance. In this case, motive behind commission of the murder of the husband of the accused M. Rajni is not established. As per disclosure statement of the accused M. Rajni, she was having matrimonial disputes and differences with her husband and wanted to get rid of him and thus she hatched conspiracy with the accused persons to liquidate her husband and get married with the accused P. Jyathi Murgan and to get service emoluments of her deceased husband. No witness including the PW-3 and PW-5 i.e. landlady and her son have stated that the accused M. Rajni had ever any incident of quarrel, dispute, scuffle or beating with her husband during her stay with the husband in the rented accommodation. Even the colleagues and employees of the State vs M. Rajni and Ors. - SC No. 07/2011 33/35 ID No.02406R0080602011 IGNOU where the accused M. Rajni and her deceased husband K. Mahesh were working did not state that they had ever heard about any disputes between husband and wife except nominal tiffs and miffs. It is time that the strained relations and fierce enmity are to different things and the inference of the offence of murder cannot be drawn from the strained relations even, if it is established.
44. This Court finds substance in the submissions advanced by Learned Counsel appearing for the accused that in the present case, prosecution has failed to establish motive attributable to M. Rajni(A-1) or co accused P. Jyathi Murgan and S. Manish @ Anna for committing murder of K. Mahesh. In "State Through CBI Vs Mahender Singh Dahiya"12 it was observed that in cases based on Circumstantial Evidence motive of committing the crime assumes great importance. In such Circumstances, absence of motive would put the court on its guard to scrutinise the evidence very closely to ensure that suspicion, emotion or conjecture do not take place of proof. This Court finds that in this case motive behind the murder is not established. Conclusion
45. Suspicion, howsoever grave, cannot be a substitute for a proof and it is obligatory for the Court to ensure that prosecution has come up before the Court with the whole and unvarnished truth. Foregoing discussion shows that in the present case, prosecution has failed to prove any of the incriminating circumstances by reliable and clinching evidence. Accused persons seems to have been roped on the basis of suspicion and story of prosecution is built on material placed on record which seems to be neither the truth nor wholly the truth and benefit of doubt always go in favour of accused. To conclude, this Court finds that prosecution has failed to establish any of charges against the accused persons beyond reasonable doubt. Accused are entitled to benefit of doubt. In the result, accused persons, namely, M. Rajni, P. Jyathi Murgan, 12(2011) 3 Supreme Court Cases 109 State vs M. Rajni and Ors. - SC No. 07/2011 34/35 ID No.02406R0080602011 and S. Manish @ Anna are hereby acquitted from the charges. Accused persons shall furnish personal bonds in the sum of Rs.25,000/- -with one surety in like amount each u/s 437-A Cr.P.C. File be consigned to record room.
announced in the
open Court
on 21st January, 2014 (Vinay Kumar Khanna)
Additional Sessions Judge-04 & Special Judge (NDPS)
South East, Saket Court/New Delhi
_________________________________________________________________ State vs M. Rajni and Ors. - SC No. 07/2011 35/35