Delhi District Court
St. vs . Sanjay @ Pappu Page No.1/137 on 12 December, 2018
IN THE COURT OF MS. SUNENA SHARMA, ADDITIONAL
SESSIONS JUDGE-03, SOUTH DISTRICT, SAKET COURTS, NEW
DELHI
SC No.7021/16
Unique ID No.02406R0025822012
FIR No.294/11
U/s: 302 IPC
Police Station : Vasant Kunj (S)
State
Vs.
Sanjay @ Pappu
S/o Sh. Than Singh,
R/o H. No.23, Farm House,
Parkland, Charas Road,
Village Kishangarh, Delhi
.... Accused
Date of Committal : 13.02.2012
Final arguments concluded on :16.11.2018
Judgment pronounced on :12.12.2018
JUDGMENT
1. In this case, accused faced trial for the offence of murder on the allegations that in the intervening night of 28/29.10.2011, he brutally murdered his wife Sheela i.e. deceased with Fawra (Kassi) and knife blows.
Prosecution case as per charge sheet
2. Briefly stated the case of the prosecution as emerging out from the charge sheet is that on 29.10.2011, DD no.8A was received by ASI Ashwani Kumar upon receipt of which, he alongwith HC Rajesh, Ct. Manoj and Ct. Zuber Khan reached at the spot i.e. at the FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.1/137 plot of P.C. Verma, Gulabo Camp, Rangpuri Pahari, Delhi and after entering into said plot, they found two rooms on the right side. In one of the rooms they found dead body of one lady whose name was revealed as Sheela, lying on a folding bed. The head of the dead body was in South direction towards the door of the room while her legs were towards North side. Near folding bed where dead body was lying, there was another wooden bed with blood smeared mattress. On the floor of the room, blood stained clothes of the deceased i.e. torn Kamiz (shirt), Shamiz (undershirt), brassier and Dupatta were lying. The dead body was lying covered with the orange colour saree and upon removing said saree, the upper half of dead body was found naked. There was a deep wound with some sharp weapon on the neck of the deceased. Deceased was wearing blue colour Salwar and on the ground, lot of blood with one blood stained gents' vest was also lying. Crime team reached and inspected the spot. On the spot, the brother and sister of the deceased namely Satpal and Babli and other family members were found present.
2.1 ASI Ashwani Kumar recorded the statement of the deceased's sister Smt. Babli, which is available on record as Ex. PW1/A, wherein she narrated the facts to the effect that she (complainant) was living at P.C. Verma, Ruchi Vihar, Gulabo Camp, Rangpuri Pahari, Delhi. Complainant was having four sisters and two brothers. Deceased Sheela, who was her eldest sister, aged 26 year, was living with her husband Sanjay @ Pappu and two children in a rented room on the aforementioned plot and it was deceased's second marriage with Sanjay @ Pappu (hereinafter referred as FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.2/137 accused). Deceased was having two children Master Vikas aged 7 years and Master Vishal aged 2 years from the accused, while her third child namely Aakash, was from her first marriage and he was living with his father. Since the deceased did not want any other child therefore, one month prior to the date of occurrence, she got herself operated for sterilization for which her husband i.e. accused was not happy with her and on that account, there used to occur frequent quarrels between them. Since the accused was an alcoholic and used to indulge in physical assaults with the deceased therefore, he was expelled from the house and just 10 days prior to the incident, he had come back, apologized for his past conduct and again started living with the deceased. However, just after half a day of his return, accused again started beating the deceased and about a week prior to the date of incident, he forcibly had sex with the deceased against her wishes despite the fact that she had recently got operated and he also gave her beatings. The said fact was disclosed to the complainant by the deceased.
2.2 On 28.10.2011, at about 8:00-9:00 pm, when complainant was outside her room, her brother in law i.e. accused Sanjay @ Pappu was lighting a candle on Tulsi plant planted outside their room, and at that time complainant's sister and her children were inside the room. After sometime, the accused also went inside the room and bolted the door of the room from inside. After a little while, complainant also came inside her room and went to sleep. In the morning at about 7:00 am, she was woken up by her neighbour Rajjo who informed her that the door of deceased's room was lying a little open and some FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.3/137 blood was seen inside the room. After hearing this, the complainant alongwith her neighbour Rajjo went inside the room of the deceased where they found the deceased lying murdered with the neck slit and the blood was lying all over in the room. In the meanwhile, complainant's brother Satpal also came there and he informed the police. The husband of the deceased i.e. accused was found absconding from the spot. Complainant raised suspicion on the accused for the murder of her sister and requested police to take action against him.
2.3 On the aforementioned statement of complainant, present FIR No. 294/11, u/s 302 IPC was registered at PS Vasant Kunj South. After registration of FIR, the investigation was assigned to Inspector Ishwar Singh, the then SHO PS Vasant Kunj. IO alongwith HC Rajesh reached at the spot, inspected the spot, took the photographs of the spot through a private photographer. After inspecting the dead body of deceased, IO got the same preserved at mortuary of AIIMS hospital through Ct. Zuber Khan and prepared the site plan. IO also seized the blood stained clothes i.e. one blue colour half sleeve lady suit which was lying torn from the middle till the end, one white colour bra which was also lying torn from one side, one white colour shamiz with one string broken and one blue striped ladies dupatta which were lying on the spot and took the same in police possession vide sealed pullanda with the seal of "I.S." and gave the pullanda serial no.1. One blood stained vest (of net) on which 'Reebok' was written, lying on the spot was also seized by the IO and he took the same in police possession vide sealed pullanda FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.4/137 with the seal of I.S. and gave it serial no.2. IO also seized the blood stained mattress and towel with floral print of blue colour which was spread on the wooden bed (Takhat). IO also seized one blood stained white colour small mattress which was also lying on wooden bed (Takhat), one blood stained quilt which was lying on the lower half of dead body of deceased, one blood stained white colour pillow which was lying on the wooden bed and kept all said articles/clothes in two plastic bags and gave them serial no.3 & 4 and sealed the same with the seal of I.S. and took the same in police possession. IO also recorded statements of witnesses and deposited the case property in the Malkhana of concerned police station.
2.4 Postmortem on the dead body of deceased was conducted on 30.11.2011 and after postmortem, the dead body was handed over to the legal heirs for cremation. After postmortem, the autopsy surgeon handed over Ct. Arvind the viscera, one cloth parcel containing clothes of the deceased, blood in gauze, one plastic bottle containing vaginal swab, one plastic bottle containing anal swab, one sealed plastic bottle containing vulval swab, one sealed plastic bottle containing perianal swab of the deceased, one sealed plastic bottle containing control swab, one sealed plastic bottle containing finger nail clipping of right hand of deceased, one sealed plastic bottle containing finger nail clipping of left hand of deceased, one sealed plastic jar containing bangle and pajeb (single) of the deceased and three sample seal of department of Forensic Medicine AIIMS. Ct. Arvind handed over said exhibits to the IO. IO took the same in police possession and got the same deposited in Malkhana.
FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.5/1372.5 On 31.10.2011, IO recorded the statement of witnesses Satpal and Tejram u/s 161 Cr.P.C. In his statement u/s 161 Cr.P.C., witness Tejram disclosed that on 28.10.2011, at 10:00 pm, accused Sanjay @ Pappu had come to him and demanded one kassi/fawra but he (Tejram) told him that he did not have the same and thereafter, accused went towards Naala Camp and after 10-15 minutes, accused was seen coming from the side of Naala Camp with one kassi/fawra and he went to his jhuggie and on the next day, it came to the notice of Tejram that accused Sanjay had murdered his wife by slitting her neck upon which, he narrated the aforementioned facts to deceased's brother Satpal.
2.6 On 03.11.2011, IO formed a team with ASI Ashwani Kumar, HC Rajesh, Ct. Manoj and Ct. Suraj for search of accused Sanjay @ Pappu and at about 4:30 pm, the said team led by ASI Ashwani Kumar produced accused before the IO in the police station. IO interrogated the accused and during interrogation, accused admitted having committed the murder of deceased on the intervening night of 28/29.10.2011 with knife and kassi. Thereafter, IO arrested the accused and recorded his disclosure statement.
2.7 In his disclosure statement, accused stated that he had married with deceased about 8 years ago and from said wedlock, one child was born. Deceased also had one son from her first marriage who was born after deceased's marriage with accused. Sometime after marriage, he started having suspicion on deceased's character FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.6/137 as deceased started behaving indifferently. Accused was not happy with her behaviour as she also refused to have sex with him and whenever he forcibly tried to have sex with her, she used to complaint to her sister and mother who used to scold him, assault him and beat him. They also forced him to get the deceased operated for family planning. About 10 days prior to the incident, when he tried to have sex with the deceased, she refused to do the same and when he forcibly tried to have sex, she complained about the same which made him revengeful. 5-6 days prior to the incident, he found lizard in his meal and he got suspicious that his wife i.e. deceased wanted to kill him and then, accused decided to kill her. On the intervening of 28/29.10.2011, when he returned home after his work, deceased Sheela was not at home and he went out and returned back after taking liquor and at that time deceased had already gone to sleep. When he tried to wake her up for sex, she did not wake up despite his insistence. Thereafter, he went to Gulabo Camp and then, to Naala Camp and brought a kassi and came back at home and hit the deceased on her neck while she was sleeping with her children at wooden bed (Takhat) and with the kitchen knife, he hit the deceased on her neck repeatedly. Thereafter, he took her on folding bed and torn and removed her clothes and covered her face with a quilt and had sex with the dead body of deceased. Then, he made the dead body wear clothes, put Sindoor on her head and covered the body with the Saree.
2.8 During investigation, accused led the police team to Old Shiv Mandir, Rangpuri and got one blood stained kassi/fawra and one FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.7/137 blood stained kitchen knife recovered from underneath the bushes of a vacant plot near said Mandir. After taking the measurement of kassi/fawra and knife, IO prepared the sketch of both said articles and put them separately in cloth pullandas, seized them and thereafter, sealed them with the seal of IS. The site plan of place of recovery of said articles was also prepared. On 04.11.2011, IO got the accused medically examined in Safdarjung hospital and the concerned doctor handed over the blood in gauze of accused with the sample seal to HC Naresh who handed over the same to the IO and IO took the same in police possession and got it deposited with Malkhana. Thereafter, further investigation of the case was handed over to IO/Inspector Gagan Bhaskar.
2.9 On 21.12.2011, said IO got the scaled site plan of the place of incident prepared through draftsman at the instance of ASI Ashwani Kumar. IO also collected the PM report wherein cause of death was opined to be shock due to hemorrhage and injury no.1 was found to be sufficient to cause death in the ordinary course of nature and all the injuries were found to be ante mortem. Thereafter, on 05.01.2012, the weapon of offence alongwith postmortem report were sent for subsequent opinion and the doctor opined that injury no.1 mentioned in the PM report could be possible with alleged recovered weapon i.e. fawra while injury no.2 to 6 could be produced by alleged another recovered weapon i.e. knife. IO also sent a request for the opinion regarding stains present on said weapons of offence. After completing the investigation, IO filed the charge sheet. However, at the time of filing of charge sheet, certain reports FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.8/137 regarding biological exhibits and viscera were still awaited and same came to be filed on record only during course of trial.
3. The charge sheet was filed before Ld. MM-06, Saket Courts on 28.01.2012, on which cognizance was taken by Ld. Magistrate. After compliance of Section 207 Cr.P.C., Ld. Magistrate committed the case to the court of Sessions and the case came to be assigned to this court on 13.12.2012.
4. Vide order dated 18.12.2012, charge for the offence punishable u/s 302 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution has examined 25 witnesses namely PW1 Babli (complainant/deceased's sister), PW2 Satpal (deceased's brother), PW3 ASI Niranjan Lal, PW4 HC Dharmender Singh, PW5 HC Naresh Kumar, PW6 Tejram (the shopkeeper), PW7 Ct. Suraj Prakash, PW8 HC Rajesh, PW9 Dr. Shashank Pooniya, PW10 Dr. Akhilesh Raj Jhamad, PW11 Ct. Zuvair Khan, PW12 Ct. Arvind Kumar, PW13 Sh. Ram Kumar (younger brother of deceased), PW14 Smt. Kamla (mother of deceased), PW15 Ct. Hardip Singh, PW16 SI Jitender Kumar, PW17 Ct. Manoj Kumar, PW18 Ct. Babu Lal, PW19 Smt. Rajjo (neighbour of deceased), PW20 Sh. Sanjay (private photographer), PW21 ASI Ashwani, PW22 HC Shamsher Singh, PW23 Inspector Gagan Bhaskar, PW24 Inspector Ishwar Singh and PW25 Ms. Anita Chhari, Sr. Scientific officer, FSL Rohini. For the purpose of convenience and easy reference, the FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.9/137 witnesses have been categorized under following heads with the documents exhibited through said witnesses:-
A) Public witnesses
1. PW1 Babli (complainant/witness to dying declaration/last seen witness)
2. PW2 Satpal (deceased's brother)
3. PW6 Tejram (the shopkeeper who saw the accused with fawara on the fateful night).
4. PW13 Ram Kumar (deceased's younger brother, the witness to recovery of weapons of offence)
5. PW14 Smt. Kamla (mother of deceased)
6. PW19 Smt. Rajjo (neighbour of deceased)
7. PW20 Sanjay (private photographer) B)Formal witnesses
1. PW3 ASI Niranjan Lal
2. PW4 HC Dharmender Singh
3. PW5 HC Naresh Kumar
4. PW7 Ct. Suraj Prakash
5. PW11 Ct. Zuvair Khan
6. PW15 Ct. Hardeep Singh
7. PW17 Ct. Manoj Kumar
8. PW18 Ct. Babu Lal C)Expert witnesses
1. PW9 Dr. Shashank Puniya, the Autopsy Surgeon
2. PW10 Dr. Akhilesh Raj Jhamad, FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.10/137
3. PW25 Ms. Anita Chhari, Sr. Scientific Officer from FSL D)Material police witnesses
1. PW8 HC Rajesh
2. PW12 Ct. Arvind Kumar
3.PW16 SI Jitender Kumar
4. PW21 ASI Ashwani Kumar (1st IO)
5.PW22 HC Shamsher Singh
6. PW23 Inspector Gagan (3rd IO)
7. PW24 Inspector Ishwar Singh (2nd IO) 5.1 For the sake of easy reference, the witnesses with corresponding documents exhibited by them have been mentioned as under:-
Public witnesses Sr. No. Witnesses Documents Exhibits Exhibit No.
1. PW1 Smt. Her Statement Ex. PW1/A Babli
2. PW2 Satpal His statement, Ex. PW2/A seizure of and accused's baniyan to Ex. PW2/E Seizure memo of Ex. PW2/B blood stained clothes of deceased (ladies suit, bra, Shamiz, chunni Blood stained baniyan/vest of Ex. PW2/C accused Blood stained Gudri Ex.
(patch work), small PW2/D FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.11/137 mattress, quilt, pillow Blood stained earth Ex. PW2/E and earth control
3. PW13 Ram His statement, Ex.
Kumar PW13/A
seizure memo of Ex.PW13/
fawra and kassi B
statement of Ex.
accused regarding PW13/C
interrogation
Police witnesses
Sr. No. Witnesses Documents
1. PW3 ASI Niranjan DD no.8A Ex. PW3/A
Lal
2. PW4 HC FIR Ex. PW4/B,
Dharmender Singh
Endorsement Ex. PW4/A
on rukka
3. PW5 HC Naresh Seizure memo Ex. PW5/A
Kumar of blood gauze
4. PW15 Ct. Hardip Scaled site plan Ex.
Singh PW15/A
5. PW20 Sanjay His statement Ex.
PW20/A
6. PW8 HC Rajesh Arrest memo Ex. PW8/A
Personal search Ex. PW8/B
memo
7. PW12 Ct. Arvind Seizure memo Ex.
of exhibits PW12/A
handed over by
autopsy
surgeon
alongwith
sample seal
8. PW16 SI Jitender Crime scene Ex.
Kumar report PW16/A
FIR No.294/11
St. Vs. Sanjay @ Pappu Page No.12/137
9. PW21 ASI Ashwani Endorsement Ex.
Kumar on PW21/A
complainant's
statement,
inquest form Ex.
PW21/B
request for Ex.
postmortem PW21/C
inquest paper Ex.
alongwith PW21/D
deceased's
MLC
OPD card Ex.
PW21/E
dead body Ex. PW21/F
handing over
receipt
scaled site plan Ex.
of place of PW21/G
recovery of
weapon
10. PW22/HC Entry Ex.
Shamsher Singh no.623/11 in PW22/A
register no.19
Entry Ex.
no.626/11 PW22/B
entry no. Ex.
628/11 PW22/C
road certificate Ex.
no.138/11 PW22/D
Road certificate Ex.
no. 10/21/12 PW22/E
acknowledgme Ex. PW22/F
nt
road certificate Ex.
no.12/21/12 PW22/G
acknowledgme Ex.
nt PW22/H
11. PW23/Inspector FSL reports Ex.
FIR No.294/11
St. Vs. Sanjay @ Pappu Page No.13/137
Gagan Bhaskar dated PW23/A
11.05.2012 Ex.
PW23/B
FSL report Ex.
dated PW23/C
18.04.2012
12. PW24/Inspector Site plan of Ex.
Ishwar Singh place of PW24/A
incident
Expert witness
Sr. Witnesses Documents Exhibits
No. No.
1. PW9 Dr. Shashank Postmotem Ex. PW9/A
Pooniya report
Sketch of knife Ex.PW9/B
sketch of fawra Ex. PW9/C
opinion in Ex. PW9/D
respect of knife
and fawra
Prosecution Evidence:
6. PW1/Ms. Babli is the sister of deceased and accused Sanjay @ Pappu was her Jija. As per her examination-in-chief, her sister Sheela and her husband Sanjay used to reside in a room adjacent to her room where she (PW1) used to reside. She deposed that accused had killed her sister and he could tell better as to why he had killed her sister. Further that, her Jija used to harass her sister for sex and her sister i.e. the deceased had told her about this fact. Further as per PW1, her sister used to tell her while weeping that her husband (accused) used to open her salwar and would not even wait for the children to sleep. PW1 further deposed that her sister did not want more children and asked the accused to get her operated FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.14/137 (sterilize) and to wait till then. PW1 stated further that she did not want to say anything else.
6.1 As PW1 was not disclosing complete facts, she was allowed to be cross examined by Ld. Addl. PP for putting leading questions to the witness. In her cross examination, PW1 responded to the sugestion in affirmative that her jija used to have sex with her sister forcibly in a wrong way and whenever her sister (deceased) refused for the same, accused used to beat her and said facts were told to her by the deceased. She further admitted that her sister (deceased) was operated for not getting pregnant again. PW1 further admitted that deceased had told her (PW1) that accused had attempted to have sex with her (deceased) just after 2-3 days of operation. She further admitted that incident had occurred on the intervening night of 28/29.10.2011. She deposed further that her brother had called the police. She admitted that police had picked up clothes comprising blue clour shirt, one bra, one shemize and one chunni smeared with blood from the bed in the room. She further admitted that one blood stained net (jalidar) vest of accused was also found there. Further that, she could identify the clothes. She further admitted that she had given her statement Ex. PW1/A to the police in this case, though she could not read her statement.
6.2 PW1 further admitted in her cross examination by Ld. Addl. PP that prior to death of deceased Sheela, she had undergone a family planning operation because she was not willing to have more children and there used to be altercation between the couple on said FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.15/137 issue. PW1 further admitted that the accused was addicted to liquor and used to beat her sister and that he was expelled by the deceased from the house and that 10 days prior to death of deceased, accused had apologized her for his misbehaviour etc. and thereafter, he was allowed to come home and started residing there. PW1 further admitted that due to operation, deceased refused to have sex with accused and on said issue, a quarrel had occurred between them and accused had given beatings to the deceased. She further admitted that just two days prior to deceased's death, deceased had disclosed her that accused used to compel her (deceased) for sex. PW1 further admitted the suggestion that on 28.10.2011, at about 9:00 pm, her sister i.e. deceased alongwith her children was inside her house and at that time accused was lighting candle on the plant of Tulsi and that after a while, accused also went inside the house and bolted the door from inside and that after sometime, she (PW1) also went inside her house and fell asleep and that in the morning, at about 7:00 am, her neighbours had informed her that blood was seen lying in the jhuggie of deceased. She deposed further that thereafter, she came out and opened the jhuggi and saw injury mark on the head of deceased. Further that, she brought both the children of deceased, who were sitting in the jhuggi on the cot with their clothes smeared with blood. Ld. Addl. PP confronted PW1 with her statement Ex. PW1/A where, it was not so recorded about presence of children in the room. She deposed further that she had told said fact regarding presence of children to the police but police might not have recorded the same.
6.3 PW1 admitted further that when she went to the FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.16/137 house/jhuggi of deceased after being informed by Rajjo, she found that door of jhuggie was slightly open. She further admitted that after sometime Satpal had come there and called the police. She deposed further that when she visited the jhuggi of deceased, accused was not there. PW1 admitted further that one jalidar Baniyan smeared with blood was recovered from the jhuggie but she could not tell the colour of said baniyan. She further admitted that one blue colour shirt, one bra, one shemize, and one chunni smeared with blood were also recovered from the deceased's jhuggie. PW1 correctly identified the case property i.e. one torn lady's shirt, one shemize (under shirt), one brassiere and one cloth piece as Ex. P3. But, PW1 could not identify the jaalidar vest (baniyan) Mark X1.
6.4 PW1 also could not admit or deny the suggestion that vest/baniyan Mark X1 was that of accused saying that she had not seen it and police had told her about the same. As per PW1, said baniyan was not seized by police in her presence. She voluntarily stated that same was seized in the presence of her brother. She denied the suggestion that deceased's children were not present in the jhuggie when she visited there. She voluntarily stated that she had lifted the children who were sitting there.
6.5 PW1 was put to lengthly cross examination by the defence counsel. In her cross examination by the defence counsel, PW1 further deposed that on the date of incident, she had visited the PS in the afternoon and second time she had gone to PS alongwith her brothers Ram Kumar and Satpal after six days of incident when FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.17/137 accused was arrested and they stayed there till 5:00 pm and thereafter, they all returned back to their house. PW1 flickered on the question as to whether the contents of her statement Ex. PW1/A were read over to whom as she first answered in negative though she claimed to be aware of its contents and later on, she again said that IO had read over the same to her. Further as per her version, her sister Sheela had come to reside in Gulabo camp about six months prior to her death. She admitted the suggestion that in Gulabo Camp, Rangpuri Pahari where she was residing, there were rooms not jhuggie. She stated further that she was residing in room no.1. She further admitted that in said premises, a private school was functional at the time of alleged incident but there was no watchman in the school. Further that, she had left for PS at 10:00 am with her brothers and mother and by that time, dead body was already taken to the hospital. Further that, the age of elder son of deceased was 10 years and the name of father of said child was Nanak but she did not have any idea when deceased had taken divorce from Nanak. She also did not know when deceased got married to accused Sanjay.
6.6 PW1 further deposed that she had not handed over any document for showing that she was residing at the given address. Further that, her matrimonial home was at Dwada District Sawai Madupur, Rajasthan but at the time of her examination, she was residing at Naala Camp, Rangpuri Pahari, Mahipal Pur, New Delhi. She deposed further that she could not produce any documentary proof pertaining to her aforesaid residence. She admitted the suggestion that the sterilization operation of her deceased sister was done with FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.18/137 the consent of accused. She deposed that the deceased had already married with three persons prior to her marriage with the accused but she did not know whether her sister had taken divorce from her earlier three husbands. She deposed further that deceased was having three sons at the time of her marriage with accused Sanjay and the children were residing with her sister at the time of incident. Further as per her version, the room where her deceased sister used to live was a small room in which only two cots could be accommodated. She did not know the name of landlord of said room. She deposed further that she was residing near the house of her brother Satpal and Rajjo was their next door neighbour and Rajjo was residing in that area for about 8-9 years. Though, in the room where Rajjo was presently residing, she had been staying for last two years. PW1 stated further that she did not know the plot number where she (PW1) was residing. Further as per her version, accused was thrown out by her deceased sister from her house one month prior to the incident and at that time, accused was not residing with her sister. She admitted the suggestion that there was sandy land near naala camp, jhuggie and that house of her deceased sister was accessible to all and anyone could approach her (deceased's) house easily and further that, inside the house of the deceased only wooden fattas were put on the bricks and there was not takhat (wooden bed). Further as per her version, the articles like gadda, gudri, quilt and pillow which were taken by the police from the spot were not sealed in a pullanda in her presence till she stayed in the PS alongwith her two brothers and mother and they all returned back together from the PS. She denied the suggestion that the accused and the FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.19/137 deceased had lived happily before the incident. She further deposed that on 03.11.2011, her elder brother Ram Kumar was informed at about 10:00 am regarding arrest of accused and thereafter, they all proceeded to PS where they stayed till 4:30-5:00 pm and during that time, no one went out till they left for their respective houses.
6.7 PW1 admitted the suggestion that the age of master Aakash at the time of alleged incident was 14-15 years. She deposed further that police did not take the cloths of children in their possession despite the fact that they (complainant and her family members) had noticed the blood stains on their clothes. She further stated that she had informed the police in her statement that her Jeeja i.e. accused had attempted to have sex with the deceased just after two-three days from the day of operation. PW1 was confronted with her statement Ex. PW1/A where it was not so recorded. She claimed to have also stated to the police that her sister did not want more children and used to ask the accused to wait till she gets operated. PW1 was again confronted with her statement Ex. PW1/A where it was not so recorded. She also claimed to have informed the police in her statement that two days prior to deceased's death, deceased was forced by the accused for sex and that fact was disclosed to her by her deceased sister. However, said fact was also not so recorded in her statement Ex. PW1/A to which she was confronted as in said statement, it was recorded only to the extent that deceased was forced to have sex by the accused but, the same does not find mention that aforesaid fact was told to PW1 by the deceased two days prior to her death. PW1 also deposed that people FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.20/137 used to light earthen lamp near Tulsi plant and not the candle.
6.8 In her cross-examination recorded on 20.09.2013, PW1 further deposed that her statement was recorded only once. She and her family used to sleep at 8/8:30 pm. There was winter season when the incident took place and since it was an open place therefore, it used to be quite cold. Further as per her version, there was Mahipalpur market near their residence from where they used to purchase household articles and there was no shop of selling fawra/kassi in their vicinity. She could not tell the exact date and month on which accused had ill treated her deceased sister. Further as per her version, deceased used to work as maid servant in kothies but she (PW1) did not know whether accused did not use to like the work of her deceased sister as maid servant. She did not know whether three earlier husbands of her sister used to visit their children in the house of her sister Sheela. She denied the suggestion that the previous husbands of deceased used to visit the house of her deceased sister in the absence of accused. She denied the suggestion that she never resided in Naala camp, Rangpuri Pahari. She also denied the suggestion categorically that accused Sanjay was not residing with her deceased sister Sheela as he had been thrown out from the house by deceased Sheela. She also denied the suggestion that accused Sanjay had been falsely implicated in this case or that she (PW1) was unable to produce any documentary proof regarding her residence at Naala Cmap juuggi, Mahipalpur as she never resided there. She denied the suggestion that she was residing with her husband at Rajasthan.
FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.21/1377. PW2/Satpal is the brother of deceased and he knew the accused as deceased's husband. As per his version, on that day, in the morning, when he was asleep, one Smt. Rajjo residing in their neighbourhood came and knocked at the door of his room and informed him that something had happened in the house of deceased and that the door of deceased's room was partly open and blood was lying. Further that, he went there and opened the door and found a cot lying just ahead of door. After entering into the room, PW2 saw that a chunni or saree was lying on the cot and after removing the same, he saw her sister and her throat was cut (gala reta hua tha). Further that, thereafter, he kept chunni or saree back on deceased's face in the same condition and called the police. Further that, police came there and thereafter, police did not allow anyone to enter the room and conducted their proceedings. PW2 further deposed that police had told him that one bra, one chunni, one salwar, all stained with blood had been taken by them. Police had visited 2-3 times for inspection of the room. Police had also lifted blood and piece of floor on which blood was lying. Police had taken out the dead body of his sister alongwith gadda (mattress) on which deceased was lying, outside the room and thereafter, she was taken in a police van. PW2 further testified that police had locked the room thereafter. Further that, his sister (deceased) was brought outside the room while her face was covered with sari or chunni. PW2 further deposed that all blood stained items and clothes were taken by the police in their custody. The blood and piece of floor was also lifted from the spot. As per the version of PW2, police had instructed them not to allow FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.22/137 anyone to enter into the house. PW2 did not remember if police had prepared any paper regarding lifting of items from the spot.
7.1 As PW2 was also not disclosing complete facts, he was also allowed to be cross examined by Ld. Addl. PP for State. In his cross examination by Ld. Addl. PP, PW2 deposed that his statement had been recorded by the police. Further that, the information regarding alleged incident was given to him by Rajjo and not by Babli. Further that, he had not given any statement to the police that he was informed about the incident by his sister Babli. Witness was confronted with his statement Ex. PW2/A, where it was so recorded. PW2 admitted that blood stained clothes including one blue colour shirt, one bra, one white colour shemize of deceased were lying in the room where she was found lying dead and further that one blood stained jaalidar baniyan of Reebok make was also lying in the room, and that police had got the photographs taken and that police had prepared the site plan and further that clothes of deceased and baniyan of accused were converted into parcel and same were seized. PW2 further identified his signature on seizure memo PW2/B and said that said document might have been prepared by police in his presence PW2 further admitted the suggestion that documents Ex. PW2/C, Ex. PW2/D and Ex. PW2/E bearing his signatures at points A, were prepared in his presence and vide said memos jaalidar baniyan; other clothes and mattress etc.; blood & piece of cloth were taken into police possession respectively. PW2 further admitted the suggestion that on 31.10.2011, he had given statement to the police.
FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.23/1377.2 PW2 further admitted the suggestion put to him by Ld. Addl. PP that on 28.10.2011, accused Sanjay @ Pappu had come to him and asked for kassi/fawra but he (PW2) refused to give the same and thereafter, accused Sanjay went towards Nala camp side and after sometime, PW2 had seen him coming with kassi/fawara. PW2 could not identify the clothes of deceased as the same were seized in the presence of his sister. PW2 however, correctly identified jaalidar baniyan with blood stains and having logo of Reebok as the one lying in the room and same was exhibited as Ex. P4.
7.3 In his cross examination by the defence counsel, PW2 further testified that in his statement made to police, he had not stated that Sanjay @ Pappu had come to him for taking kassi/fawra or that he had refused to give kassi/fawra to accused. He further stated that both her statement made in the examination in chief and in the cross-examination are correct but he voluntarily stated that he had mistakenly stated in the court that kassi/fawra was asked from him while the kassi/fawra was asked by the accused Sanjay @ Pappu from Tejram. Further as per his version, his statement was recorded in the PS in the presence of his sister Babli and various other persons of locality though he did not know which document was prepared by the police. He had signed the documents on asking of police without going through the contents of same nor did he remember as to how many documents he had signed. He further deposed that his mother was also present in the PS when his statement was recorded and he stayed in the PS only for 1½ or 2 hours and thereafter, they all went to their houses except his brothers and two other persons. Further as FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.24/137 per his version, he had informed police about the incident from his mobile number 9582756967 but at the time of his examination, he was using another number as his aforementioned number had been lost. He deposed further that he had not informed the police that Kalu was speaking or that his wife had been murdered at Naala camp jhuggie. He deposed further that he had asked the police to come at Naala camp jhuggie because his sister had been murdered. As per his version, the house of Rajjo was at a distance of 10 yards from his rented house. Further that, it used to take half an hour to go to Mahipalpur market from his house. PW2 had been residing in Naala camp jhuggie for 2-3 years and prior to that he was residing near mahipalpur. The deceased was residing at Naala camp jhuggie for last 7-8 months and prior to that, she was residing at Kishangarh. He further deposed that his sister was married firstly with Nanak. Thereafter, she took divorce from Nanak and re-married with Jaimantar. PW2 however, denied the suggestion that deceased was thereafter, married to Prabhu or that after leaving Prabhu, she got married with accused. He admitted the suggestion that deceased had given birth to children from Nanak, Jaimantar and Sanjay and their children used to reside with her. He denied the suggestion that the eldest son of Sheela from Nanak was 14 years. He voluntarily stated that he was less than 10 years. PW2 did not remember whether Vikas was born from wedlock of Sheela and Jaimantar but he said that the eldest son was Vikas and he was about 10 years of age and he (Vikas) was living with deceased at the time of her death. He again voluntarily deposed that eldest son of Sheela was Aakash and he was above 12 years while Vikas was less than 10 years. As per version of FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.25/137 PW2, deceased third child was Vishal and he was 5-6 years old.
7.4 In his cross-examination recorded on 19.11.2012, PW2 further testified that PCR had arrived at the spot after 20-25 minutes of the call. Though, he did not remember the exact time of arrival of local police but, they arrived after the PCR. Firstly, the dead body was taken by the police in a police vehicle and thereafter, they were taken to police station. PW2 categorically denied that Jaimantar used to visit the deceased for meeting her and his biological children. Further as per his version, accused Sanjay was thrown out by them from the house of the deceased 2-3 months ago as he used to quarrel with her. PW2 voluntarily stated that accused had however, come back after 1½ month and again started living with the deceased. PW2 categorically denied the suggestion that Sanjay never turned up after he was thrown out by them. Further as per his version, his mother was working as a maid for 24 hours at a house and she used to visit them occasionally and she did not use to reside with them. He denied the suggestion that Sanjay was not present at the house of the deceased nor he had murdered Sheela. He also denied the suggestion that Sanjay had never married with the deceased.
8. PW6/Tejram is also one of the material witnesses of prosecution case. He deposed that he was having a shop of grocery items outside the residential area on the road and he knew the accused (correctly identified) as he was residing at some distance from his shop. As per his version, it was about 10:00-11:00 pm, he had closed his shop and after taking the dinner, he was sitting inside FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.26/137 the shop and switched off the light and was making preparation to sleep as he used to sleep inside his shop. Further that, at that time, accused had come to him and asked for a kassi/fawra to which he (PW6) replied that he was not having any kassi as he had no business with kassi. PW6 further deposed that thereafter, accused went towards basti (residential area) and after 10-15 minutes, when PW6 was about to sleep in his shop, accused passed by his shop with a kassi in his hand. PW6 did not know as to from where accused had brought said kassi. PW6 further testified that next day in the morning, at about 6:00 am, he had opened his shop. A lady came to his shop for fetching milk and informed him that a man had killed his wife. PW6 further testified that he did not know the accused by his name. After 2-3 days, he (PW6) was called at police station and enquiry was made from him.
8.1 In his cross-examination, PW6 further deposed that he had been residing in Delhi since 1984 with his family at the address Jhuggi no.330, Rangpuri Pahari, Gulabo Camp, New Delhi. As per his version, he used to sell grocery items and did not sell kassi/fawra. He was running his shop for about 8 years and the shop was of 10x12 fts size. His shop was a khokha and he used to keep his shop close whenever he used to go for purchase of items for his shop. There was no electricity meter installed in his Khokha. He admitted the suggestion that there was a jungle near his Khokha and it was a hilly area. Further as per PW6, it was around Bhaiya Dooj and winter season was going to start but weather was still warm. He could not tell the name of police man who called him in PS. He went to PS at FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.27/137 about 11-12 day time. He admitted the suggestion that the policeman of his area used to visit his Khoka to purchase Biri/cigarette. The Naala Camp Mandir was situated at the distance of 100-200 yards from his shop. He further deposed that Naala Camp Jhuggie and Gulabo Camp jhuggi were situated adjacent to each other. He further deposed that he did not have any documents to show that he had a shop/khoka at Gulabo camp. He however, voluntarily stated that he used to pay fees to Weight and Measurement Department and was in possession of said receipt. PW6 further stated that he used to open his shop at 6:00 am and used to close it at 10:00 pm. His family consisted of three sons, two daughters in law, he himself and his wife and his house was having four rooms and he used to keep the sale proceeds of the day in his Khokka shop. He admitted the suggestion that in one room, his son and daughter in law used to reside and in other rooms, he used to reside alongwith his other family members.
8.2 Further as per his cross examination, there was no light outside his shop nor there was any electric pole. However, at the distance of 10-12 meters from the end of road, houses were built. The width of road was 20-22 fts or it might be more when there was a crossing. His house was situated towards right side of his shop at the distance of 200 yards. He denied the suggestion that he used to go to his house after closing of his shop. He denied the suggestion that he had not seen the accused taking kassi or that accused had never visited his shop to demand kassi or that there was no occasion for the accused to ask for kassi as he (PW6) was selling the grocery items.
FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.28/137He denied the suggestion that he had good relations with police officials of his beat or that for said reason, he had become witness in this case at the instance of police. He denied the suggestion that he was a planted witness. He further deposed that he could not tell the name of lady who had apprised him about the murder of a woman by her husband.
9. PW13/Ram Kumar is another brother of deceased. In his examination in chief, he has deposed that deceased was his elder sister and he identified the dead body of his sister in the AIIMS hospital mortuary and his statement Ex.PW13/A bearing his signature at point A was recorded by the police in this regard. PW13 has further deposed that on 29.10.2011, his younger brother Satpal had informed him telephonically that Sheela was dead and her husband Sanjay was not present at home. At that time, PW13 was at the house of his friend. After hearing this news, he came to his home and his brother Satpal informed in detail as he had already visited the home of his deceased sister and saw her lying dead. PW13 further deposed that Satpal informed him that he had called up police but he (PW13) had not gone inside the room where the dead body of his sister Sheela was lying.
9.1 PW13 further deposed that police had come after sometime and inquired from them about any enmity with anyone and he informed the police that his brother-in-law was absconding. He further deposed that he had accompanied the police to the place where father of his brother-in-law was residing, however his brother-
FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.29/137in-law was not present there. PW13 further deposed that on 03.11.2011, police had called up on his mobile phone and informed that they had already arrested Sanjay @ Papu i.e. his brother-in-law and asked him to come to police station. He went to police station, where 3-4 policemen and Insp. Ishwar Singh and accused Sanjay @ Papu were found present, police interrogated Sanjay in his presence and asked him as to why he had killed his wife. Rest of his deposition is not relevant as the same is relating to disclosure statement made by the accused while he was in police custody.
9.2 PW13 further deposed that accused had also disclosed that he (accused) had kept the fawara and the knife in the bushes near the mandir situated near his house i.e. Ruchi Vihar and led them to said place from where accused got recovered said knife and fawara and same were sealed in a cloth parcel and seized vide seizure memo Ex.PW13/B bearing his signature at point A. PW13 also identified his signature on disclosure statement of the accused Ex.PW13/C at point A. PW13 further deposed that he could not tell the measurement of fawara and knife but the knife was a kitchen knife. He also identified fawara as Ex.P1 and knife as Ex.P2. PW13 further proved the site plan of place of recovery of knife and fawara as Ex.PW13/D and sketch of knife as Ex.PW13/E. 9.3 During his cross-examination, PW13 deposed further that on the date of incident, he was present at the house of his friend at Vasant Vihar and he received the telephonic call from his brother Satpal at 6:00 am and his brother Satpal informed him on phone that FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.30/137 his sister Sheela had been murdered and consequently, he reached to the house of deceased at 6:45 am. He further deposed that his sister Sheela was working with one NGO in Kishangarh, Vasant Kunj, at the time of incident. PW13 however, did not remember whether PCR police officials were present or not at the spot when he reached there. As per his version, they were living in the tenanted accommodation. Smt. Rajjo was his next door neighbour and she was residing there for last 2½ years. Deceased was residing in the room where she got murdered for last one year from the date of incident. PW13 denied to have handed over any document to police as proof of their residence at the address given in his examination in chief. As per his version, PW13 had visited the PS at about 9:00 am alongwith his sister Babli, brother Satpal and mother Kamla and remained in the PS till 3:00 pm and during that period, police had interrogated them. As per his version, police had taken some articles from the spot and converted them into parcels and sealed them in the PS. PW13 admitted the suggestion that the distance between his house and deceased's house was 100-150 meters. He further deposed that his sister Babli was married to Suresh Kumar in village Diwara, District Madhopur, Rajasthan. He further deposed that deceased had married twice prior to her marriage with the accused and at the time of her marriage with the accused, both her husbands were alive and there was no documentary evidence pertaining to the divorce of the deceased from two previous marriages. He admitted the suggestion that deceased was having one son from her previous husband Nanak and said boy Master Vikas, who was 12-13 years old at the time of incident, was residing with Sheela on the date of incident. He FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.31/137 admitted the suggestion that deceased also had another son namely Aakash aged about 14-15 years who was also living with her at the time of incident. He further deposed that on 03.11.2011, when he received the information from police regarding apprehension of accused, he was present at his home and after said information, he alongwith his mother, brother Satpal and sister Babli reached at PS at about 4:30 pm and he alongwith aforesaid persons left the PS at about 6:00 pm on that day. As per his version, no other proceedings were conducted by the police at the PS except the interrogation of the accused and some writing work in his presence. He denied the suggestion that he had gone to PS alongwith his family at about 11:00 am. He however, admitted that he left the PS on that day at about 5:00 pm alongwith his family. Further, as per his version, the distance between his house and Rangpuri Shiv Mandir was about 150 to 200 meters and said Mandir was at 200-250 meters from house of deceased. Further that, there were no boundary from the two sides of premises where 8 rooms were built up including the deceased's room and the room of the deceased was easily accessible.
9.4 PW13 further deposed that at the relevant time accused had been working as a labour with mason. Further as per his version he had not gone through the contents of the documents which were signed by him as witness in the police station on 03.11.2011 but the contents of said documents were read over to him by the police official. As per his version no blood stains were noticed by him on the clothes of the sons of the deceased, though he had noticed the blood on the cot, folding bed and takhat as well as on the wall of the room.
FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.32/137He denied the suggestion that the previous husbands of the deceased used to come at her house or that they used to quarrel with the deceased while they were staying with the accused. He categorically denied the suggest that either the previous husbands of deceased or her two sons committed the murder of deceased. He denied the suggestion that both the sons of deceased had a doubt on the character of the deceased. He admitted the suggestion that her deceased sister had thrown out accused Sanjay from her room three months prior to the date of incident. He voluntarily stated that though he could not tell how many months prior to the incident accused had been thrown by her sister from her room but the accused was residing with her for last three months prior to the incident. PW13 did not remember the date and time when he had visited the deceased just before the date of incident. He further deposed that he had told the police in his statement that his brother in law was not available at home though, he did not tell that his brother in law was absconding. The witness was confronted with his statement Ex. PW13/A where even the fact regarding his having told the police that his brother in law was not available was also not so recorded.
9.5 PW13 further deposed that on 03.11.2011, after coming from the PS, he stayed back at his home with other family members from 5:00 to 8:00 pm. He further deposed that it took police 20-25 minutes to record his statement but, he did not remember if he had put his signatures on any documents in the PS on that day. Further as per his version, there was no cloth piece wrapped on the knife and FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.33/137 Fawra/kassi which were lying in the PS. He further deposed that on 03.11.2011, from morning till 4:00 pm, when he received the call from PS, he had remained at his home alongwith his family members. He admitted the suggestion that Kassi/fawra was found lying in an open space in shrubs and that place was accessible to all. He further deposed that at the time of recovery of kassi, people were coming and going at that place and they remained at the place of recovery for half and hour and then went to PS in police gypsy. As per his version, distance between the house of deceased and place of recovery might be 150-200 yards. PW13 further testified that at the time of murder of his sister, her sons namely Vikas and Vishal were with the deceased in the said room. PW13 categorically denied the suggestion that accused had not got recovered any kassi/fawra or knife as stated by him in his examination in chief or that he (PW13) had not joined the recovery proceedings and therefore, he did not remember how many documents were signed by him. He denied the suggestion that accused had not committed the crime or that he (PW13) had never visited the place of alleged recovery with the police. He denied the suggestion that deceased was murdered by her sons due to her wrong activities.
10. PW14/ Kamla is the mother of deceased Sheela. As per her examination-in-chief, Sheela was married to accused Sanjay and after marriage Sheela used to reside with the accused at Rangpuri pahari, Gulab ka camp, Nalewale Jhuggi, near Lal Mandir. Further that, the married life of her daughter was bad but she did not know the reason for the same. Further that, her daughter i.e. deceased FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.34/137 Sheela had given birth to a dead child as she was badly beaten by accused and PW14 came to know about said fact after that child was burried and she was not able to see that child. When PW14 came to see her daughter after knowing said fact, she saw bruises on face of her daughter and on being asked, her daughter initially stated that she had fallen down and sustained injury but thereafter, she disclosed that she was beaten by the accused.
10.1 PW14 further deposed that thereafter, accused had kept her daughter at a place for about three years though she did not know about that place. PW14 also did not know when her daughter had come to reside at Rangpuri. She further deposed that her daughter had come at Rangpuri about two months prior to her death. PW14 further deposed that her daughter had come to meet her alongwith her child and accused was not with him on that occasion; her daughter used to go for work and used to cook food in some houses. PW14 further deposed that she had asked the accused not to beat her daughter and further that she (her daughter) would earn her livelihood and take care of her child; therefore, accused did not use to come at the house of her daughter but used to meet her daughter on the way when she used to go for her work. PW14 further testified that her daughter Sheela told her that accused wanted to reside with her, but she advised her daughter that accused would create problem to her because she (deceased) would again deliver a child in that case and he would leave her alone. PW14 asked her daughter Sheela to inquire from accused if he was agreeing for family planning. Accused though agreed for operation but just after 10-15 days of FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.35/137 family planning operation, accused killed her daughter. As per PW14, accused was habitual to all kind of intoxication. PW14 further deposed that the main cause for which accused had killed her daughter was that he used to take all kinds of intoxicants and wanted to have sex with her daughter and her daughter was not willing for the same.
10.2 As per version of PW14 in her cross-examination, the incident had happened three days after Diwali though ,she did not remember the date. She claimed to have disclosed to police regarding the deceased having been beaten up by the accused but, in her statement Ex. PW14/DA to which she was confronted it was not so recorded. Likewise, her claim for having told the police about the deceased having come to live at Rangpuri only two months prior to her death was also not so recorded in her statement Ex. PW14/DA. The witness was also confronted with certain other portion of her examination in chief which she claimed to have disclosed to the police but same were absent in her statement Ex. PW14/DA. She categorically denied that Nanak, the ex-husband of deceased used to meet his son Vikash who was living with the deceased even after deceased's marriage with the accused. She further denied the suggestion that in the noon on the date of incident, deceased's ex- husband Nanak had come to deceased and had a quarrel with her. She further deposed that the distance of her house from the house of deceased might be 500 meters. Further that, deceased got married to accused 3-4 years back. Further that, when she reached at the house of deceased at 7:30-7:45 am, she found 70-80 persons present FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.36/137 there including the police personnel. She denied the suggestion that Sheela had driven out Sanjay from her home 2-3 months prior to her death.
11. PW19/Rajjo is the neighbour of accused, who has deposed that accused used to reside in her neighbourhood alongwith his wife and two children. She further deposed that in the morning she had seen blood coming out of the room of Sheela. Thereafter, she went to the younger sister of Sheela namely Bubbly and woke her up and apprised her about the blood in the room of Sheela. Thereafter, she became unconscious and did not know anything else about this case. Since PW19 did not support the case of prosecution she was declared hostile and cross examined by Ld Addl.PP. In her cross examination by Ld. Addl.PP, she deposed that she did not know whether police had visited there or not because she had become unconscious after seeing the blood. She deposed further that she did not remember whether police had recorded her statement or not. She further deposed that accused Sanjay and his family had already slept before she went on bed. As per her version, she had seen two children of accused Sanjay inside his room, but accused Sanjay was not found. She further deposed that she had not seen accused on that day in the house or even thereafter. She had, however, seen Sanjay in the court whenever she had visited three-four times in connection with this case.
11.1 In her cross-examination, PW19 deposed that she had started residing at the address of Gulabo Camp Jhuggie, Rangpuri FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.37/137 Pahari, one month prior to the incident and deceased was already residing in her house before she (PW19) started residing there on the aforesaid address. She deposed further that she had not seen any person apart from the accused in the house of deceased on the date of death of deceased. She deposed further that one day prior to the death of the deceased, she had seen deceased, her husband i.e. accused and her children in the house of deceased. She deposed further that she had gone to bed at about 9:00 in the night. She denied the suggestion that third husband of deceased used to visit the deceased in absence of accused. She further denied the suggestion that she was deposing falsely in that regard.
12. PW20/Sanjay is a photographer, who had been running his photograph shop in the name and style Sai Photo Studio at Maata Chowk, Mahipalpur, Delhi. He deposed that he had not taken any photographs at the request of police of alleged dead body in the month of October 2011 and he did not know the other facts of this case. After said deposition of PW20, he was declared hostile by Ld. Addl. PP and he cross examined him (PW20) with the permission of the court. During his cross-examination, he categorically denied that on 29.10.2011, his statement was recorded by the police or that on that day at about 8 or 9 am he had reached the spot i.e. Gulabo Camp, Rangpuri pahari alongwith Ct. Manoj Kumar or that he had taken 17 photographs from different angles at the request of police of one dead body and scene of crime or that he had stated in his statement that he would produce the negatives of photographs during trial. The witness was confronted with his statement Ex.
FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.38/137PW20/A where it was so recorded. He further denied that he was deposing falsely to save the accused or that photographs Mark X1 to X17 available on file were taken by him. Upon being shown the said photographs mark X1 to X17, witness categorically denied to have taken/clicked said photographs. He was never cross examined by Ld. Defence counsel.
Formal witnesses
13. PW3/ASI Niranjan Lal is the duty officer. He proved on record DD no.8A dated 29.10.2011 as Ex. PW3/A. As per his version, on 29.10.2011, while he was working as Duty Officer at PS Vasant Kunj South, he received an information from control room and he recorded said information vide said DD no.8A.
13.1 In his cross examination, PW3 admitted that there was over writing in the original DD register from portion A to A made by him. He further stated that DD no.8A was the last entry and DD no.2A was the first entry made by him.
14. PW4/HC Dharmender Singh is also a duty officer. As per his version, on 29.10.2011 while he was posted at PS Vasant Kunj South and was working as DO, at about 10:30 am, on receipt of rukka brought by HC Rajesh sent by ASI Ashwani Kumar, he put his endorsement on the rukka as Ex. PW4/A and got the present FIR u/s 302 IPC registered through computer operator as Ex. PW4/B. Further that, copy of FIR and original rukka was handed over to the SHO.
FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.39/13714.1 In his cross-examination, PW4 stated that except registration of FIR, he had not done any proceedings in respect of this case. He further stated that after registration of DD no.8A, no entry was made in daily diary register till he took charge at 8:00 am. He did not take part in any investigation of present case.
15. PW5/HC Naresh Kumar deposed that on 04.11.2011, while he was posted at PS Vasant Kunj South, IO had instructed him to get the accused medically examined in his custody. He had taken the accused from lock up to Safdarjung hospital for his medical examination and got the accused medically examined. Further that, after examination, doctor handed over blood in gauze to him and he handed over the same and MLC to the IO. IO prepared memo in this regard as Ex. PW5/A. 15.1 In his cross-examination, PW5 stated that he reached in the hospital at about 11:00 am in Gypsy and stayed there for 1½ to 2 hours. He had handed over the medical examination form duly filled by the IO to the doctor but he did not remember the name of said doctor nor his designation. He further stated that Ct. Manoj accompanied him to the hospital. PW5 did not make any departure or arrival entry in that regard. PW5 came back in the PS at about 1 or 1:15 pm. Further as per PW5, he could not say whether MLC of accused was placed on record by the IO or not. Sample blood was taken in emergency in his presence by the doctor. He denied the suggestion that he had not got prepared the MLC of accused at Safdarjung hospital nor the blood in gauze was taken in his presence FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.40/137 by the doctor or that he was deposing falsely.
16. PW7/Ct. Suraj Prakash is the special messenger. As per his version, on 29.10.2011, he was entrusted with the copy of FIR by the duty officer to deliver the same to the Ilaqua Magistrate, DCP as well as Joint CP and he had delivered the same by visiting their respective residences. Further that, his statement was recorded by the IO on the same day.
16.1 In his cross examination, first of all, he went to house of MM, then DCP and then Joint CP. PW7 went to the house of Ilaqa Magistrate at 11:15 am on motorcycle no.DL-1SJ-1191 but, he could not tell the house number and came back to PS at about 5:30 pm. He had made his arrival entry in the PS but, did not remember its number. He further stated that he had not taken the delivery receipt of copy of FIR from police officer and concerned MM. He denied the suggestion that he never visited the residence of MM, DCP or Joint CP.
17. PW11 Ct. Zuvair Khan had deposed that on 29.10.2011 had taken the dead body of deceased Sheela to the AIIMS Trauma Centre at the instructions of IO in Tata Safari Car and deposited it in the mortuary and remained on duty whole night. Till the body was in his possession same was not tempered with.
17.1 In his cross examination, PW11 stated that he alongwith IO/ASI Ashwani Kumar reached to the spot at about 7:20 am and remained there upto 9:00-9:30 am. He admitted that the spot was an FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.41/137 open place and around the spot, there were bushes and lady was lying dead at the spot. He stated that around 20-25 persons were there at the spot but he could not tell their names. He stated further that IO remained at the spot while he had gone to AIIMS Trauma Centre and no proceeding was conducted in his presence. Further as per PW11, firstly, they used to take the dead body to emergency of hospital and later on, to the mortuary. Further that, on 29.10.2011, at about 10:00 am, he deposited the dead in the mortuary. No ACP, DCP had ever arrived at the spot in his presence. He denied the suggestion that he never visited the spot and took the dead body to hospital and mortuary.
18. PW15/ Ct. Hardip Singh is the draftsman who prepared the scaled site plan. As per his version, on 21.12.2011, he visited PS at the instance of IO ASI Ashwani Kumar and went to plot of PC Verma, Gulaor Camp, Rangpuri Pahari, and prepared the rough notes and took measurements. Rough notes were destroyed by him. Thereafter, he visited the vacant plot near Shiv Mandir, Ruchi Vihar and took the rough notes and measurements and then returned to police station and he went to his office. PW15 further deposed that on 22.12.2011, he prepared the scaled site plan Ex.PW15/A bearing his signature at point A and handed over to police person who came to his office. Later, his (PW15's) statement was recorded by the IO/ASI Ashwani Kumar.
18.1 In his cross examination, PW15 stated that his statement was recorded on 21.12.2011 in the PS by the IO and he has been FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.42/137 read over the same. He was not aware whether in his statement u/s 161 Cr.P.C., Gulabo Camp, Rangpuri Pahari was mentioned. He did not remember when he returned to the PS after preparing the rough notes. PW15 stated further that he had torn the rough notes and measurements after preparing the site plan. He admitted that in his statement u/s 161 Cr.P.C., IO had not mentioned that they had visited the second place and he had also taken the rough notes and measurement at the instance of ASI Ashwani Kumar. He denied the suggestion that IO/ASI Ashwani Kumar had not recorded his statement or that he had not visited the spot and taken the measurement and rough notes or that he had prepared the scaled site plan at the instance of police officer or that he was deposing falsely.
19. PW17/Ct. Manoj Kumar had only deposited exhibits at FSL Rohini, therefore, he is also a formal witness. He has deposed that on 13.01.2012, he was entrusted viscera box, one sample seal and one letter by the MHCM vide receipt No.12/21/12 for depositing the same to FSL Rohini. He accordingly deposited the same in FSL Rohini in intact condition and handed over the receipt to the MHC(M). He further deposed that the case property had not been tampered with by anyone during his custody and remained intact. He was not cross examination by Ld. Defence counsel.
20. PW18/ Ct. Babu Lal had also deposited pullandas in FSL. He has deposed that on 11.01.2012, he was entrusted with eleven sealed pullandas alongwith sample seal to deposit the same with FSL FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.43/137 vide RC No.10.21.12 by MHC (M). He deposited the same in FSL Rohini and after depositing the same he handed over the receipt to MHC(M). During his custody case property was not tampered with.
20.1 In his cross-examination, PW18 stated that he was verbally asked by MHC(M) to deposit the said sealed pullanda in the FSL. He reached at the FSL at about 11:30 am or 12:00 pm and returned back to PS at about 4:30 pm after depositing 11 sealed pullandas.
Expert Witnesses
21. PW9/Dr. Shashank Puniya Junior Resident, AIIMS Delhi has deposed in his examination in chief that on 30.10.2011, he was posted in the department of Forensic Medicine, AIIMS and on that day he conducted the postmortem on the dead body of deceased Sheela w/o Sanjay under the supervision of Dr. Akhilesh Raj Jhamad, Senior Resident, Forensic Medicine.
On examination of dead body, PW9 found following injuries :-
1. Rigor mortis was present all over the body.
2. Post-mortem lividity was present over back and dependent parts except over pressure areas.
3. Blood stains were present over shoulders and neck.
4. A deep gaping incised wound of length 3cms x 3.5cms was present in the middle 1/3 of neck on interior aspect with tailing on left side.
Wound was 6cms below chin, 6cms below left mastoid and 12 cms below right mastoid. It was 7cms above suprasternal notch and 131 cms above right heel. Margins of wound were contused. Trachea oesophagus, both carotids and jugular veins were cut and exposed.
FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.44/1375. A spindle shaped deep gaping incised wound was present on right side of chin measuring 4.5cms x 2cms. It was 5cms above injury number 1 (lateral end) and 8cms above injury no.1 (medial end). It was obliquily placed and tailing was present at medial end. Margins were contused.
6. A superficial incised wound of size 2.5cms x 0.5cm was present over right anterio-lateral aspect of neck, 1cm lateral to injury no.1, tailing medially.
7. A spindle shaped incised wound of size 3cms x 0.5cm was present 7cms below right mastoid tip and 2cms lateral to injury no.1. It was 2.5cms deep. Margins were contused and tailing medially.
8. A muscle deep incised wound of size 10cms x 0.5cm was present on right cheek, extending over right lateral aspect of neck. It was obliquily placed with medial and 10cms lateral to chin and 4cms below and medial to right pinna. Lateral end was 6cms below right mastoid up. Tailing was present at medial end and margins were contused.
9. A superficial incised wound of size 12cms x 0.5cm was present over right cheek and extending over right side of neck. Its medial end was 12cms from chin and lateral end was 5cms from right mastoid tip. It was tailing medially.
10. Linear abrasion (scratch) of length 8cm was present vertically over the back of right thigh. It was reddish brown in colour.
11. Stomach was containing about 200cc of brownish coloured semi solid indistinguishable material. Mucosa of stomach was congested.
12. Bilateral tubectomy was done. Anus was funnel shaped and anal sphincters were relaxed.
Note : Margins of injury no.1 to 6 in postmortem report were sharp and clean cut.
21.1 PW9 further deposed that following articles were sealed by him and handed over to IO alongwith sample seal.
FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.45/1371. Clothes (orange sari, blue petticot, black penty and green mattress).
2. One silver coloured anklet and green coloured glass bangles.
3. Blood in gauze.
4. Vaginal, anal, perianal and control swab
5. Viscera.
21.2 As per opinion of PW9, the cause of death in this case was shock due to hemorrhage and injury no.1 was sufficient to cause death in ordinary course of nature. All margins were ante mortem in nature. Time since death was about one and half day. The postmortem report was proved as Ex.PW9/A bearing his signature at point A. 21.3 She further deposed that Inspector Gagan Bhaskar of PS Vasant Kunj (South) had submitted an application for opinion regarding weapon of offence in this case and the same was marked to her on 02.01.2012, wherein IO asked for the opinion whether the injuries caused to deceased Sheela could be caused with the recovered weapon or not. Alongwith said application, IO had also submitted the original postmortem report and two sealed pullandas.
21.4 PW9 deposed that first pullanda was having two seals bearing seal mark IS and particulars of the present case. On opening the pullanda, a knife was found in it. Sketch of knife was prepared by PW9. The length of blade of knife was 10cms, length of handle was 9.5cm, maximum width of blade was 1.4cm. Knife was single sharp edged. The blade was having brownish stains and rust stains. The sketch of the knife is Ex.PW9/B bearing his signature at point A. FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.46/137 Second pullanda was having ten seals bearing seal mark IS and particulars of the present case. On opening the pullanda, a fawda was found in it. The length of wooden handle of fawda was 69cms and circumference was 10.5cms. It was attached to a blade with a metal grip. The blade was having dimensions of 26cms x 23 cms x 20 cms. The blade of fawda was blunt edged. Four nails were attached at lower end of wooden handle. The blade was having brownish stains and rust stains. The sketch of the fawda was Ex.PW9/C bearing signature of PW9 at point A. 21.5 After perusal of the postmortem report and examination of alleged recovered weapon, PW9 was of the considered opinion that injury no.1 as mentioned in postmortem report could be produced by fawda and injuries no.2 to 6 could be possible by knife. The opinion given by him regarding the knife and fawra is Ex. PW9/D bearing his signatures at point A & B. The examination of both knife and fawra was done by PW9 under the supervision of Dr. Akhilesh Raj Jhamad. IO was requested to get opinion about stains present on the fawra and knife from FSL. Fawda and knife were duly sealed and handed over to the IO alongwith sample seal of their department. Post mortem report was also handed over to the IO. Weapons of offence were not shown to the witness/doctor as they were deposited in the FSL.
21.6 In his cross examination, PW9 stated that there was no variation in the measurement if the articles i.e. Fawra and knife put to him for opinion. He denied the suggestion that knife and fawra were FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.47/137 not properly measured by him. PW9 could not recollect if there was any sand on fawra when he examined it.
22. PW10/Dr. Akhilesh Raj Jhamad is the Sr. Resident, Forensic Medicine, AIIMS. As per his version, on 30.10.2011, the postmortem of deceased Sheela was conducted by Dr. Shashank Pooniya under his supervision and he prepared post mortem report Ex. PW9/A in this regard. Further that, the opinion regarding weapon of offence i.e. knife and fawda was also given by Dr. Shashank Pooniya under his supervision and opinion is Ex.PW9/D. He was not cross examined by Ld. Defence counsel.
22.1 PW25 Anita Chhari deposed that on 11.01.2012, while she was working as Sr. Scientific Officer, 18 parcels pertaining to the present case were deposited in their office vide letter dated 05.01.2012 and same were marked to her for analysis. She deposed that she had examined those parcels and prepared her report no.FSL2012/B-232, Bio No.62/12 dated 11.05.2012 as Ex. PW23/A and her report in respect of Serology analysis as Ex. PW23/B. Material Police Witnesses:
23. PW8/HC Rajesh deposed that on 29.10.2011 while he was posted in police station, a call had been assigned to ASI Ashwani for preliminary inquiry upon which, he alongwith ASI Ashwani and two other constables had gone to the spot i.e. Gulabo Camp, Rangpuri Pahari, Vasant Kunj. Further that, at the ground floor of the house, one dead body of a female was lying on the folding bed in the room.FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.48/137
One takht having a gadda (mattress) was also lying in the room. Blood was also lying on the folding bed as well as on the takht. Upper portion of the dead body above the waist was naked. PW8 further deposed that in the meanwhile, brother, mother and sister of the deceased also reached there. ASI Ashwani made inquiries from them and recorded statement of Babli. Further that, he (PW8) was sent to police station for registration of FIR and after registration of case, he came back to the spot and found SHO there. Thereafter, SHO had sent the dead body to the hospital for postmortem. Further as per PW8, bra, shemize, one shirt and one chunni lying under the folding bed were sealed by the SHO, one jaalidar baniyan, one gudri, gadda, takiya (pillow) which were also lying in that room were also taken into possession and seized. Thereafter, crime team also reached there and took photographs of the scene of crime. After breaking the floor earth was taken into possession by the SHO.
23.1 PW8 further deposed that accused was not found despite search. On 03.11.2011 they went in search of accused Sanjay and went to Rangpuri Nala Camp, Gulabo Camp and Mangolpuri. While PW8 alongwith Ashwari Kumar were present at Mangolpuri, Rainbasera, ASI Ashwani Kumar received a telephone call from Sultan Puri. The phone call was made by one Mahavir who claimed himself to be jija of Sanjay. Mahavir informed ASI Ashwani Kumar that Sanjay is under his apprehension at Sultanpuri bus stand, then they reached Sultanpuri and Mahavir handed over accused Sanjay to ASI Ashwani Kumar. PW8 further deposed that he alongwith ASI Ashwani Kumar, two constables and accused had come back to police station and FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.49/137 accused was handed over to the SHO. The SHO interrogated accused and arrested him in the present case, personal search of accused was also taken. The arrest and personal search memos are Ex.PW8/A and Ex.PW8/B bearing his signatures at point A.
24. PW12/Ct. Arvind Kumar has deposed that on 30.10.2010 he alongwith ASI Ashwani had reached AIIMS mortuary and IO got conducted the postmortem on the dead body and after postmortem doctor gave one viscera petty, clothes of deceased and blood gauze, three sample seals, plastic jar, plastic bottles to him, in all eleven items were given to him by IO Insp. Ishwar Singh after seizing the same vide seizure memo Ex.PW12/A bearing his signature at point A1 on first page and at point A2 at second page. He further deposed that the application mark PW12/A for postmortem moved by IO Insp.Ishwar Singh also bears his signature at point A.
25. PW16/ SI Jitender Kumar was the Incharge Mobile crime team, South District, who has deposed that on 29.10.2011, on receiving information from police control room as well as from local police, he alongwith other staff reached at Gulabo Camp, Rangpuri Pahari and saw one room adjoining another room, when they entered in the room, he found a dead body of a lady on the folding bed. Her throat was silt and having A cut-mark. Blood had oozed in large quantity as there was blood on the folding bed, a wooden bed (takhat), which was also lying there. Blood was also there on the mattress on the takhat. Torn clothes of lady were also lying on the ground. PW16 inspected the scene of crime. He further deposed that FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.50/137 since their camera was out of order, IO was asked to get photographs of the scene of crime from a private photographer. PW16 prepared his inspection report Ex.PW16/A bearing his signature at point A and handed over the same to the IO. Private photographer had not reached at the spot till he left from there.
26. PW21/ASI Ashwani Kumar deposes that on the intervening night of 28/29.10.2011, he was on night emergency duty at PS Vasant Kunj (S). At about 7:00 am, DD no.8A as Ex. PW3/A was assigned to him in connection of a murder of one lady in Gulabo camp, Rangpuri Pahari. The said information was passed on by one Kalu. Pursuant to said information, he alongwith HC Rajesh, Ct. Manoj and Ct. Zuber Khan reached at Gulabo camp where in a room, he noticed dead body of one female of about 30 years covered with orange saree and one quilt was lying on the cot. He further deposed that he had also noticed cut mark on the neck of dead body. Further that, Smt. Babli, Satpal, Smt. Kamla from family of deceased were also present in that room. Name of deceased came into notice from them as Smt. Sheela w/o Sanjay @ Pappu. One kamij (shirt), samiz, bra, one baniyan (vest) made of net and Dupatta having blood stains were also lying on the floor near the cot. The upper portion of deceased was naked.
26.1 PW21 further deposed that he had passed on said information to senior officials and also informed crime team officials. Deceased's sister Babli got recorded her statement vide Ex. PW1/A and he (PW21) attested the same. Complainant had named Sanjay @ FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.51/137 Pappu for the murder of deceased. Further that, PW21 made his endorsement vide Ex. PW21/A on her statement and at about 10:00 am, he sent the rukka to PS through HC Rajesh for registration of FIR. Further as per PW21, SHO/Inspector Ishwar Singh also came at the spot and he inspected the spot and the dead body. Crime team officials also reached at the spot. Photographer, whose name PW21 did not remember, had taken the photographs of dead body and scene of crime. One private photographer was also called at spot through Ct. Manoj and he had also taken some photographs of dead body and scene of crime.
26.2 PW21 further testified that finger print proficient had also came at the spot and made efforts to lift finger print but same could not be traced out. Further that crime team Incharge SI Jitender also inspected the spot and the dead body and instructed them to lift blood lying on floor, blood smeared earth, earth control, mattress, quilt, pillow and cloth lying at spot and to get conducted postmortem of deceased. He (SI Jitender) prepared SOC report at spot and handed over the same to Inspector Ishwar Singh. Further as per PW21, HC Rajesh came at the spot alongwith rukka Ex. PW4/A and copy of FIR Ex. PW4/B and delivered the same to Inspector Ishwar Singh for investigation. Io sent the dead body to mortuary in custody of Ct. Zuber to get it preserved for postmortem. IO prepared the site plan of spot. IO also made inquiry from public person and search for weapon of offence. IO lifted the bra, dupatta, shirt, undershirt, vest, mattress, pillow, quilt and one gudari and converted the same in one parcel and sealed with the seal of IS and seized vide seizure memo Ex.
FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.52/137PW2/B, C and D. Further that, they left the spot and reached PS and sealed parcels were deposited with MHC(R). IO recorded his statement as well as statement of Babli, Satpal and Rajjo.
26.3 PW21 further testified that on 30.10.2011, he had again joined the investigation with IO and Ct. Arvind and they reached to mortuary of AIIMS. IO conducted the inquest proceedings. Dead body was identified by Satpal and Raj Kumar and their statements were recorded to that effect. IO sent the inquest papers alongwith relevant papers to the doctor for conducting postmortem and on the same day, postmortem was conducted by doctor and after postmortem, dead body was handed over to the relatives of deceased.
26.4 Further that, on 03.11.2011, they four police officials left the PS in search of accused Sanjay and reached at Mangolpur via Rangpuri pahari and other places but he could not be traced out till 12:00 noon. Thereafter, at about 12:30 or 1:00 pm, PW21 received a telephonic call from accused's brother on his phone who informed that accused was with him. They reached at bus stand Sultan puri where accused Sanjay @ Pappu (correctly identified by the witness) was standing with his brother Mahavir. PW21 interrogated accused and took him to PS and handed over him to IO/Inspector Ishwar Singh. PW21 further deposed that IO Inspector Ishwar Singh had interrogated the accused in detail, arrested him vide arrest memo Ex. PW8/A, conducted his personal search vide personal search memo Ex. PW8/B in his presence and recorded his disclosure statement vide Ex. PW13/C in which, accused disclosed that he had concealed the FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.53/137 fawra and knife near Rangpuri Mandir and he could get the same recovered. Thereafter, accused led him, Inspector Ishwar Singh and one Ram Kumar to place near Shiv Mandir, Rangpuri Pahari, Vasant Kunj, New Delhi and pointed out at the bushes at a distance of 80 feet from Shiv Mandir towards Ruchi vihar and he (accused) picked up one knife and kassi from those bushes. The same were checked and they noticed some blood stains over them. PW21 further deposed that IO checked the knife, took its measurement and prepared its sketch vide Ex. PW13/E. The total length of knife was 20 cm and blade was of 10.4 cm. Handle of knife was made of wood. Thereafter, IO converted the kitchen knife and kassi into two separate parcels duly sealed with the seal of IS and seized vide seizure memo Ex. PW13/B. Total length of kassi was 69 cm and length of its blade was 24.6x 26 cm. Further as per PW21, IO prepared the site plan of place of recovery of both the weapons vide Ex. PW13/D and recorded statement of police offcer and public witness Ram Kumar at the aforesaid spot. Thereafter, they returned to PS and sealed parcels were deposited to MHC(M) and accused was put in lock up after medical examination.
26.5 PW21 further testified that on 04.11.2011, he had again joined investigation of this case. He alongwith IO and Ct. Arvind reached AIIMS and IO completed the inquest proceedings and he (PW21) also assisted them. Some of writing work of inquest proceedings was done by the IO and some was done by him on the direction and dictation of IO. Further that, dead body of Smt. Sheela was identified by Satpal and Ram Kumar vide their statement Ex.
FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.54/137PW21/A & PW13/A. PW21 filled up inquest form Ex. PW21/B and also filled up request for postmortem vide Ex. PW21/C. Thereafter, aforesaid inquest paper alongwith MLC of deceased Ex. PW21/D, OPD card Ex. PW21/E and other relevant documents were sent to autopsy surgeon for postmortem. Further that, after postmortem vide PM report Ex. PW9/A, the dead body was released to LRs for cremation against receipt Ex. PW21/F. Further that, five sealed parcels containing viscera material, clothes, blood in gauge, vaginal swab, anal swab, vulval swab, period swab, control swab, nail clippings from both the hands, single pajeb of deceased and three sample seals were handed over to police by mortuary staff and same were seized vide memo Ex. PW12/A. Thereafter, they all returned to PS. IO deposited the aforesaid sealed parcels and sample seals to MHC(M) in intact condition. Nobody tampered with them. PW21 further testified that on 21.12.2011, IO had called a draftsman at PS and he (PW21) alongwith draftsman Hardeep Singh had visited the recovery place i.e. bushes near Shiv Mandir, Rangpuri Pahari and at his instance, rough notes and measurements were taken by the draftsman. Later on, scaled site plan Ex. PW21/G of place of recovery prepared by the draftsman, was collected by PW21. Thereafter, investigation of this case was transferred to Inspector Gagan Bhaskar.
26.6 Further as per PW21, on 29.12.2011, on the direction of Inspector Gagan Bhaskar, he had taken two sealed parcels containing weapon of offences from MHC(M) and presented the same alongwith other relevant documents before concerned clerk of Forensic Department of AIIMS. Further that, on 04.01.2012, he collected FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.55/137 subsequent opinion Ex. PW9/O annexed with two sketches of weapons Ex. PW9/B and Ex. PW9/C. Further that, he returned to PS with the subsequent opinion and two sealed parcels containing weapon of offence duly sealed with the seal of forensic department and deposited the same to MHC(M). PW21 correctly identified the case property i.e. kitchen knife as Ex. P-1, kassi/fawar as Ex. P-2, ladies shirt, shameez, bra and one piece of cloth having dirty marks as Ex. P-3 (colly), jaalidar T-shirt/baniyan as Ex. P-4, mattress and pillow as Ex. P-5 and quilt/rajai as Ex. P-6.
27. PW22/ HC Shamsher Singh deposes that on 29.10.2011, he was posted as MHC(M) at PS Vasant Kunj (South).On that day, IO/Inspector Ishwar Singh had deposited two sealed pullandas bearing serial no.1 & 2 and two plastic bags (katta) bearing Sr. no. 3 & 4 and two plastic jars bearing Sr. no. 5 & 6 with the seal of IS and he made entry no. 623/11 in this regard in register no.19. Further that, while he was preparing the said entry no.623/11 during midnight of 29/30.10.2011, IO had also deposited viscera peti sealed and five sealed jars containing swab of deceased, three plastic jar containing pajeb and bangle in one jar and nail clippings in two other jars with the seal of hospital alongwith sample seal and a parcel containing blood in gauze. PW22 mentioned all the exhibits in the same entry no. 623/11 and also mentioned the contents of pullandas as per seizure memos in register no.19. He proved said entry as Ex.PW22/A. PW22 further deposed that on 03.11.2011, IO Inspector Ishwar Singh had deposited two sealed pullands in the malkhana and he made entry no. 626/11 in this regard in register no.19. He proved FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.56/137 the said entry no. 626/11 as Ex. PW22/B. Further as per PW22, on 04.11.2011, IO had deposited one parcel of blood in gauze of accused duly sealed with the seal of hospital and he made entry no. 628/11 as Ex. PW22/C in this regard in register no.19. Further that, on 28.12.2011, one kassi and knife in sealed pullandas were sent to hospital for subsequent opinion vide road certificate no. 138/11 Ex. PW22/D. PW22 further testified that on 11.01.2012, he had sent 21 sealed exhibits alongwith sample seal to FSL through Ct. Babu Lal vide road certificate no.10/21/12 Ex. PW22/E and after depositing the exhibits, he (Ct. Babu Lal) had brought the acknowledgment of the same Ex. PW22/F. PW22 further deposed that on 13.01.2012, one viscera peti alongwith two sample s eals of hospital were also sent to FSL through Ct. Manoj Kumar vide RC No.12/21/12 Ex. PW22/G and he brought back the acknowledgment receipt Ex. PW22/H of the same.
28. PW23/Inspector Gagan Bhaskar is the second IO. As per his version, on 18.11.2011, while he was posted as SHO at PS Vasant Kunj, he conducted further investigation of this case as initial IO Inspector Ishwar Singh was transferred. During investigation, PW23 called draftsman Hardeep Singh to visit the scene of crime and to prepare a scaled site plan. Both the scaled site maps were prepared at the instance of ASI Ashwani Kumar as Ex. PW15/A & Ex. PW21/G. Thereafter, he got collected the postmortem report Ex. PW9/A of deceased Sheela. Further that, on 28.12.2011, he got submitted the weapon of offence and PM report with Forensic Department, AIIMS through ASI Ashwani for subsequent opinion about the injuries caused by the recovered weapon. PW23 received the subsequent FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.57/137 opinion as Ex. PW9/D from Forensic Department, AIIMS alongwith exhibits on 04.01.2012. PW23 further deposed that during investigation, exhibits of this case were deposited at FSL, Rohini for examination and opinion and FSL result were obtained later on vide FSL reports Ex. PW23/A and Ex. PW23/B prepared by Ms. Anita Chhari, Sr. Scientific officer (Biology), FSL Delhi. Further that, other FSL report Ex. PW23/C was prepared on 18.04.2012 by Sh. Jitender Kumar, Sr. Scientific officer (Chemistry), FSL Delhi. PW23 also collected the report of crime team as Ex. PW16/A. He also recorded the statement of witnesses. After completion of investigation, charge sheet was prepared and filed in the court.
29. PW24/Inspector Ishwar Singh is the first IO. He has deposed that on 29.10.2011, while he was posted at PS Vasant Kunj (S), after registration of FIR, investigation of this case was conducted by him. He alongwith HC Rajesh reached at place of incident i.e. Gulabo Camp, Rang Puri Pahari, plot of PC Verma where ASI Ashwani Kumar alongwith other police staff were found present. There were 8- 10 rooms in the said plot. The incident had taken place in the second room on the right side of entrance. Further that, he inspected the said room and found a dead body of a lady was lying on the folding bed. The throat was slit and having injury marks on chin and back side of neck. Blood was spread all over in the room. There was wooden bed "Takhat" also lying in said room having bedding smeared with blood. PW24 came to know that crime team had already inspected the place of the incident but photographer was not with them. Therefore, he called a private photographer and got the scene FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.58/137 of crime photographed through a private photographer. PW24 found that upper portion of body of deceased was naked but covered with the orange colour saree. The upper clothes of the deceased were lying on the floor in torn condition having blood stains. One vest ( Jalidaar) having blood stains, having words Reebok printed on it was also lying there. The body of deceased was sent to AIIMS mortuary through Ct. Zubair Khan. The site plan of place of incident was prepared vide Ex. PW-24/A. Thereafter, the upper clothes of the deceased having blood stains i.e. shirt, bra, under shirt (Shameez) and Chunni which were lying on the floor were taken into police possession and sealed in a parcel bearing Sr. no.1 with the seal of IS and taken into police possession vide seizure memo Ex. PW-2/B. The vest having words Reebok printed on it was also sealed in a parcel bearing Sr. no.2 with the seal of IS and taken into police possession vide seizure memo Ex. PW-2/C. The blood stained beddings i.e. "Gudri (patch work), a small size, mattress one pillow and quilt by which lower portion of deceased was covered, were also taken into police possession and sealed in two parcels (quilt was sealed separately in one parcel and remaining articles in other parcels) and same were seized vide seizure memo Ex. PW-2/D and these parcels were marked as Sr. No. 3 and 4. The blood stained earth and earth control were also lifted from the spot and sealed in two parcels with the seal of IS and were marked as Sr. No. 5 and 6 and taken into possession vide seizure memo Ex. PW-2/E. PW24 further deposed that when he had reached the spot, the relatives of the deceased i.e. her brother Satpal, sister Babli, mother Kamla and other relatives were also present at the spot and the aforementioned articles were FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.59/137 sealed in their presence and he obtained signature of the Satpal brother of deceased on the seizure memo. PW24 made enquiries from the residents of locality but none of them came forward to state anything about the incident except Rajjo Devi who was living in the adjacent room where the incident had taken place. PW24 recorded statement of the relatives of deceased. From their statement, it was revealed that deceased was lastly seen by them in the company of her husband Sanjay @ Pappu and her husband was not found in the house after the death of deceased. Further that, despite effort, Sanjay @ Pappu husband of the deceased could not be traced. Thereafter, they returned to the PS and deposited the aforesaid parcels in the Malkhana.
29.1 PW24 further testified that on the next day morning, he along-with ASI Ashwani, HC Rajesh and relatives of deceased reached at mortuary AIIMS. PW24 prepared the inquest papers, form No. 25.35 (1) (b) as Ex. PW-21/B, statement regarding identification of deceased as Ex. PW-21/A and Ex. PW-13/A and moved an application as Ex. PW21/C for postmortem of the body of deceased. After the postmortem, dead body was handed over to her brother vide memo Ex. PW-21/F. Further that, after the postmortem, the doctor handed over 11 parcels duly sealed with the seal of department of forensic medicine AIIMS and three sample seals which were taken into police possession vide seizure memo Ex. PW-12/A and same were deposited in Malkhana. PW24 also collected PM report as Ex. PW-9/A. Different teams were made to search the accused but in vain. Further as per PW24, on 03.11.2011, one team led by ASI FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.60/137 Ashwani Kumar traced the accused and they apprehended him in the area of Sultan Puri and at about 04.30 PM, accused Sanjay @ Pappu (correctly identified) was brought to the PS and produced before him. PW24 interrogated the accused Sanjay @ Pappu and recorded his disclosure statement as Ex. PW-13/C, arrested him vide arrest memo Ex. PW-8/A, conducted his personal search vide Ex. PW-8/B. Further that, during interrogating accused disclosed that he could get recovered the weapons of offence used by him from Rang Puri, Pahari. In pursuance of his disclosure statement, accued led the police team to Rang Puri Pahari, near Shiv Mandir. On reaching there, PW24 asked some public persons to join the proceedings but none agreed. The accused further led the police party upto 80 yards from said temple and reached to a vacant plot where some bushies were there. There was a boundary wall in the said plot. Accused got recovered blood stained Fawra (spade) and a knife having blood stains from bushies at a distance of 10 feet inside the boundary wall. The said place was situated opposite to the plot of KL Garg and Satish Garg. Further that, the sketch of knife was prepared as Ex. PW-13/E and sketch of spade was also prepared as Ex. PW-13/E. Measurements of both the articles were taken and they both were taken into police possession vide seizure memo Ex. PW-13/B. PW24 had also prepared site plan of place of recovery vide Ex. PW-13/D. Further that, public persons refused to join the proceedings despite request of PW24 but Ram Kumar, brother of deceased arrived there and he had joined the proceedings with them at the time of recovery of weapons. Thereafter, they returned to the PS and PW24 deposited the case property in the Malkhana. Accused was sent to lock up after FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.61/137 his medical examination.
29.2 PW24 further testified that on the next date i.e. on 04.11.2011, prior to production of accused in court, he was again taken to hospital where his blood sample was taken vide seizure memo Ex. PW-5/A. Thereafter, accused was produced before the court and sent to JC. PW24 recorded statement of witnesses, who had joined him in the investigation on different occasions. Thereafter, further investigation was conducted by the other IO as he (PW24) was transferred.
30. For the sake of brevity, cross examination of police witnesses is not discussed herein and relevant part of their cross- examination shall be referred at the time of discussion of evidence under the heading of court's discussion.
Statement u/s 313 Cr.P.C.
31. After completing the prosecution evidence, statement of accused u/s 313 Cr.P.C was recorded wherein accused denied the case of prosecution as incorrect and pleaded his innocence by saying that he has been falsely implicated in the present case by deceased's mother as she was not happy with his marriage with deceased and she always used to pressurize him to keep deceased's two children from her previous marriage with him. Therefore, she was having grudges against him and got him falsely implicated in the murder of her daughter who had died at her parental home. He stated further that deceased was living separately from him at her parental home at FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.62/137 Vasant Kunj since about six months prior to the incident and during said period, he never resided with her. He further stated that he surrendered in the PS Sultanpuri, Crime Branch due to pressure of police. Accused denied that he had ever made any disclosure statement or got any weapon of offence recovered.
32. I have given my thoughtful consideration to the rival submissions raised from both the sides and also carefully gone through the entire record.
Arguments of Defence counsel
33. Counsel Sh. B.S. Chaudhary appearing for accused has argued that the case of the prosecution suffers from grave and material discrepancies and hence, the same is not at all sufficient to record conviction. Counsel further argued that prosecution case is based on circumstantial evidence but the prosecution has miserably failed to prove any of the link of circumstantial chain so as to connect the accused with the commission of the offence. It is further argued that even from the statement of the complainant/PW1 Smt. Babli and PW2 Satpal, nothing has been brought on record to prove the complicity of the accused in the alleged offence. It is further argued that that the material on record is totally lacking as no direct or indirect evidence has been adduced to prove complicity of accused in the alleged offence. Counsel further argued that except the disclosure statement of accused, nothing has been brought on record to connect the accused with the alleged offences.
FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.63/13733.1 Counsel further argued that there is no clinching evidence on record to prove the fact that the accused was present in the house on the fateful night when the deceased was murdered. The only witness examined in this regard is deceased's sister Smt.Babli whose testimony is full of contradictions and inconsistencies. It is further argued that as per the deposition of deceased's sister Smt. Babli and her brother Satpal, who are examined as PW1 and PW2, on the date of alleged incident, the children of the deceased were also present in the same room where the deceased was found dead. It is further argued that despite the presence of children inside the room at the time of alleged incident, the police did not examine any of said children as witnesses nor recorded their statement u/s 164 Cr.P.C. Counsel further argued that the room of the deceased was a small room as is also evident from the photographs placed on record and considering the fact that her children were also present inside the room, they were the best witnesses to depose in this case and the IO has deliberately not examined them in order to falsely implicate the accused in the present case. It is further argued that ex-husbands of deceased used to frequently visit her house and there was every possibility of involvement of any of said persons in the murder of the deceased but since, the family of the deceased was having grudges against the accused, they implicated him in the present FIR.
33.2 It is further argued that even the alleged recovery of weapons of offence at the instance of accused, is also of no help to the prosecution case for the reason that the recovery was effected from an open place accessible to general public and hence, the FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.64/137 prosecution cannot draw any aid from Section 27 of Indian Evidence Act. It is further argued that the witness Tej Ram who has been examined as PW6, has also come up with vague and shaky version making him totally unreliable. It is further submitted that as per the version of PW6, he did not have any electricity meter in his shop nor there was any electric pole outside his shop and therefore, there was no source of light for him to be able to see the face of the accused who allegedly visited his shop at 10:00-11:00 pm. Counsel further pointed out that the prosecution has examined PW6 for proving the circumstance that on the night of 29.10.2011, the accused was seen carrying fawar/kassi in his hand and on same facts even PW2 who is deceased's own brother has also deposed that on 28.10.2011, accused Sanjay @ Pappu had come to him and asked him for kassi/fawara and when he refused to give the same, accused Sanjay @ Pappu went towards Naala Camp side and after sometime, he had seen him with kassi/fawra. Whereas, no such facts were disclosed by PW2 in his statement u/s 161 Cr.P.C. given to police and even PW2 himself has admitted in his cross-examination that he had not stated said facts to the police and there is no explanation on record as to why said witness did not disclose such material facts to the police when his statement was recorded u/s 161 Cr.P.C.
33.3 It is further argued that as per prosecution case, one blood stained vest/jaalidar baniyan which allegedly belonged to accused, was recovered from the place of incident and the same was also seized by the police vide seizure memo Ex.PW2/C wherein, deceased's brother Satpal has been cited as one of the attesting FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.65/137 witness. However, when deceased's sister Babli. who had allegedly seen the accused entering into the jhuggi/room of the deceased on the date of incident, was shown said cloth from parcel 2 brought by the MHC(M) during her examination in the court, she stated that it was not the baniyan of accused as it was having hood. Counsel further argued that PW2 Satpal, who is the alleged witness to the seizure memo of said baniyan did not depose anything in his examination in chief and it is only in his cross-examination by Ld. Addl. PP, he admitted that one blood stained jaalidar baniyan of Reebok was also lying in the room.
Arguments of Ld. Addl. PP
34. Ld. Addl. PP Sh. R.K. Gurjar has vehemently argued that prosecution has duly proved on record each link of circumstantial chain by leading clinching and cogent evidence which is sufficient to prove the charges against accused beyond all reasonable doubt. It is further argued that pursuant to disclosure statement of accused, the weapons of offence i.e. a kassi/fawra and a kitchen knife with blood stains were also recovered and the blood on the knife also got matched with the blood of deceased. Further as per opinion of doctor, the injuries found on the dead body of deceased were possible with said weapons. It is further argued that from the version of the complainant/PW1 Smt. Babli, it is clear that on the date of alleged incident, she had seen the accused bolting door of room from inside while, deceased and her children were already present in the room, which itself is a strong circumstance indicating his involvement in the alleged offence especially when the accused was also found FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.66/137 absconding from the spot and got arrested only on 03.11.2011 i.e. after 6 days of incident. Further, the accused was also seen carraying said kassi in his hand on the fateful night by an independent witness Tejram, who was running a grocery shop in the nearby area.
Court's Discussion
35. Since the case of prosecution is based on circumstantial evidence, all the circumstances should in the first place be conclusively proved; the circumstances so proved must unerringly point to the guilt of the accused; the circumstances proved must form a complete chain of evidence not to leave any reasonable ground for conclusion consistent with the innocence of the accused and the circumstances proved must be such that within all human probability the act must have been done by the accused.
36. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by touch stone of law relating to circumstantial evidence laid down by Hon'ble Apex Court as far back as 1952 in Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343, which is the basic judgment of the Hon'ble Apex Court on appreciation of evidence, when the case depends only on circumstantial evidence and the same has been consistently relied upon in later judgments. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, the three Judge Bench of the Hon'ble Supreme Court relying on Hanumant Govind Nargundkar (supra) set out the conditions which must be fulfilled before a case against the accused can be said to be fully FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.67/137 established. The conditions are:
"1. The circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established,
2. All the facts so established should be consistent only with the hypothesis of the guilt of the accused.
3. The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.
4. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused; and
5. It must be such as to show that within all human probability the act must have been done by the accused."
37. In the case of G. Parshwanath vs. State of Karnataka, (2010) 8 SCC 593, this Court elaborately dealt with the subject and held as under:
"23. 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 and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person 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 FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.68/137 these inferences, the court must have regard to the common course of natural events and to human conduct and there relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts.
38. In the instant case, following are the different links of chain of circumstances constituting certain primary facts on which the prosecution has relied upon and led evidence to bring home the guilt of the accused persons.
(I) Homicidal death of deceased. (II) Deceased was found dead in her rented room where she was
residing with her husband i.e. accused Sanjay @ Pappu and two children.
(III) On 28.10.2011, at about 9:00 pm, accused was seen entering into the room of deceased and bolting the door of room from inside, by deceased's sister Babli, who was also living in another nearby room in the same plot.
(IV) Blood stained vest/baniyan of accused was seen lying near the dead body of deceased.
(V) The upper portion of dead body of deceased was naked and her blood stained shirt, undershirt, bra and chunni were found lying near the dead body.
(VI) Few days before her death, deceased confided with her sister that her husband used to force her for sex despite her having recently undergone sterilization operation and he used to beat her whenever, she refused for sex.
(VII) On 28.10.2011, at about 10-11:00 pm, accused was seen carrying one kassi/fawra in his hand by one shopkeeper of FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.69/137 nearby locality.
(VIII) Recovery of blood stained kassi and a knife at the instance of accused pursuant to his disclosure statement.
(IX) Subsequent opinion of the doctor regarding possibility of injuries shown in PM report being caused with kassi/knife, recovered during investigation.
(X) The blood group of the blood found on the knife Ex. P-1 seized vide seizure memo Ex. PW13/C got matached with the blood group of the deceased.
(XI) After alleged incident, accused absconded from the house and got arrested only on 03.11.2011 i.e. after six days of alleged incident.
39. Let us now embark upon the evidence adduced on record to prove the above circumstances to determine as to whether they have been conclusively proved on record by the prosecution, if so, whether from said facts so proved on record a conclusion of guilt can be drawn against the accused. For said purpose, we shall deal with each of the above circumstances one by one in chronological order as given above in preceding para.
Circumstance (I): Homicidal death of deceased.
40. To prove the homicidal death of deceased, prosecution has examined PW9 Dr. Shashank Puniya, JR, AIIMS, who proved the PM report of the deceased as Ex. PW9/A and the subsequent opinion regarding the weapons of offence i.e. knife and Fawra as Ex. PW9/D. He has also proved the sketch of knife and of fawra as Ex. PW9/B & FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.70/137 Ex. PW9/C. As per his deposition, he had conducted the postmortem on the dead body of deceased Sheela on 30.10.2011 and upon examination, as many as 7 injuries (mentioned in the PM report at serial no. 1 to 7) were found on the dead body of the deceased and the margin of injury no. 1 to 6 were sharp and clean cut. The cause of death as per his opinion was shock due to hemorrhage and injury no.1 was sufficient to cause death in ordinary course of nature.
40.1 PW10 Dr. Akhilesh Raj Jhamad, SR, Forensic Medicine, AIIMS was also examined by the prosecution and as per his deposition, postmortem of deceased Sheela was conducted by Dr. Shashank Puniya under his supervision and he also identified his signature on the PM report on Ex. PW9/A at point B. 40.2 Even PW1 Smt. Babli and PW2 Satpal have also deposed in their examination that when they entered the room after noticing some blood inside the room, they saw the deceased lying in pool of blood and her neck was wounded with deep cut/slit and the blood was lying all around the bed and the dead body. The version of the autopsy surgeon with regard to death being caused due to hemorrhage and injury no.1 being sufficient to cause death in ordinary course of nature, has gone unrebutted and hence, the above fact that the death of deceased was homicidal stands proved on record.
Circumstance (ii): Deceased was found dead in her rented room where she was residing with her husband i.e. accused FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.71/137 Sanjay @ Pappu and two children.
41. As per prosecution case, deceased was residing in a rented room at P.C. Verma, Ruchi Vihar, Gulabo Camp, Rangpuri and at the time of alleged incident, she was residing with her two children and husband i.e. accused Sanjay @ Pappu. Ex. PW1/A, the statement of complainant Smt. Babli on the basis of which, the FIR was lodged also narrates the fact that the deceased was living in a room at the aforementioned address with her husband and two children. As per said statement Ex.PW1/A, the marriage of the deceased with the accused was her second marriage and the two children namely Master Vikas (aged 7 years) and Master Vishal (aged 2 years) were born from her second marriage, while, her third son namely Aakash, who was from her first marriage, used to reside with his father i.e. ex- husband of deceased. As per said statement Ex. PW1/A, on 28.10.2011, at about 8:00-9:00 pm, when PW1 Smt. Babli was standing outside her room, she had seen her brother in law (Jija) i.e. accused Sanjay @ Pappu lighting a candle on Tulsi plant outside his room while, her sister and her children were inside the room. After sometime, accused also went inside the room and bolted the room from inside. Thereafter, complainant also came inside her room and went to sleep.
41.1 The defence set up by accused in his statement u/s 313 Cr.P.C. is that deceased was living separately at her parental home for last six months prior to the incident and he had never resided with deceased during her stay with her parents and even on the date of alleged incident, he was not living with the deceased.
FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.72/13741.2 Let us now advert to deposition of PW1 Babli, who is the sister of deceased. Perusal of her examination in chief shows that she was residing in a room adjacent to the room of deceased where the deceased was residing with her husband Sanjay, whom she correctly identified in the court. In her examination in chief, PW1 deposed to the effect that accused had killed her sister and accused could better tell as to why he had killed the deceased. She deposed further that her brother in law used to harass her sister for sex and she was told about said fact by the deceased herself. She deposed further that her sister did not want more children therefore, she used to ask accused to let her get operated and wait till then.
41.3 As PW1 did not come forward with complete details, Ld. Addl. PP sought permission to cross-examine her and it is only in her cross-examination by Ld. Addl. PP, PW1 responded to the suggestions put by the prosecutor wherein she admitted that accused was expelled from the room by her sister because he was a drunkard and used to beat her sister. Further she deposed that about 10 days prior to death of her sister, accused apologized her sister for his misbehaviour and thereafter, he was allowed in the home and started residing there. She further admitted the suggestion that on 28.10.11 at about 9pm, her sister alongwith her children was inside her house and at that time accused was lighting candle on the plant of Tulsi and after a while, he also went inside the house and bolted the door from inside. She further admitted that on 29.10.2011, in the morning at 7am, upon being informed by her neighbour that some blood is lying FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.73/137 in her sister's jhuggi, she came out of her jhuggi and after opening the door of jhuggi, she saw her sister with injuries on her head. As per PW1, two children of deceased were sitting on the cot in the jhuggi and she brought them out, however, deceased's husband i.e. accused was not found present there.
41.4 In her cross-examination by the defence counsel, PW1 further deposed that her sister Sheela had come to reside in Gulabo Camp about six months prior to her death. She further deposed that she had not handed over any document showing proof of her (PW1) residence at the address given in her statement. She stated that her matrimonial house was in village Dwada, Sewai Madhopur, District, Rajasthan but now a days she was residing at Naala Camp Jhuggi, Rangpuri Pahari, Mahipalpur, New Delhi. She deposed that accused had accompanied her sister i.e. deceased for giving her consent at the time of aforesaid operation. In answer to a suggestion, PW1 admitted that (sterilization) operation was got done after consent of accused. She further deposed that deceased had already married three persons prior to her marriage with the accused. She deposed further that she did not know whether ex-husbands of her sister used to visit their children in the house of her sister. She denied the suggestion that deceased's ex-husband used to visit her house in absence of accused. This suggestion put to PW1 itself suggests that accused was living with deceased in said house otherwise, there was no occasion to put such suggestion to PW1.
41.5 In her cross-examination, PW1 was also put a suggestion FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.74/137 that accused Sanjay was not living with her sister Sheela as he had been thrown out from the house by Sheela. This suggestion put to PW1, contradicts accused own defence because as per his statement recorded u/s 313 Cr.P.c., deceased had been living at Gulabo Cmap, near her parents for six months prior to her death and during her said stay, accused never resided with her. And in such a situation, there could not have been any occasion for the deceased to throw him out from her house. Thus, said suggestion rather strengthens the prosecution case that about one month prior to the incident, accused was expelled from the house by the deceased and only few days before the alleged incident, accused apologized for his previous conduct and deceased again allowed her to live with her in her rented room at Rangpuri.
41.6 PW1 categorically denied the suggestion that Sanjay was not residing with her sister Sheela as he was thrown out from her house by Sheela. She further denied the suggestion that she was unable to produce any documentary evidence regarding her residence at Naala Camp Jhuggi, Rangpuri Pahari, Mahipalpur, New Delhi because she had never resided there. She also denied that she was residing with her husband at her matrimonial home in Rajasthan.
41.7 Prosecution has also examined deceased's brother Satpal as PW2. Even PW2 has corroborated the version of PW1, as he has also deposed that deceased was residing at Nala Camp Jhuggie for last about 7-8 months and he (PW2) was living just few yards away from the jhuggie of deceased. In his cross examination by defence FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.75/137 counsel, PW2 also testified that since accused Sanjay used to quarrel with deceased therefore, he was thrown out from the house of deceased 2-3 months prior to the incident. Further he deposed voluntarily that accused Sanjay had come back after one and half month and started living. PW2 denied the suggestion that Sanjay did not turn up to the house of deceased as he was thrown out by them (deceased's family). PW2 also denied the suggestion that accused was not present at the house of deceased or that accused had not murdered the deceased.
41.8 Though, there is some discrepancy in the statement of PW1 and PW2 with regard to the time when the accused was allegedly thrown out of the house by deceased and the time when, he allegedly joined back after apologizing about his past conduct, but said discrepancy in my view is not very material because in any case, accused had joined back the deceased in her rented room few days prior to her death and both the PWs are consistent on the fact that at the time of alleged incident, accused was living with deceased.
41.9 PW14 Smt. Kamla is the mother of deceased. As per her examination in chief, after marriage with accused, deceased started residing with the accused at Rangpuri Pahri, Gulabo Camp, Naale Wali Jhuggie, near Lal Mandir. She further deposed that accused had kept deceased at some other place for about three years and she did not know when did the deceased come to reside at Rangpuri. She again deposed that deceased had come at Rangpuri for about two months prior to her death. In her examination, she further deposed that FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.76/137 accused although did not use to go to house of the deceased but, he used to meet her on the way when the deceased used to go for her work and deceased had told PW14 that accused wanted to reside with her upon which, PW14 said to deceased that accused would again create problem for her as she (deceased) would again deliver a child and accused would leave her alone. PW14 further deposed that she had asked the deceased to inquire from the accused if he was agreeable for family planning operation of the deceased and as the accused agreed for the same, eventually the operation was performed and within 10-15 days of operation, accused killed her daughter. PW14 came to know about the accused having agreed for sterilization operation because the deceased and accused had gone for taking an appointment for the operation. She deposed further that accused killed her daughter because he was an alcoholic and under intoxication, he used to force her daughter for sex. Though, there is some discrepancy in the statement of PW15 with regard to time, when the deceased started living in Rangpuri, Gulabo Camp, but, the view of the consistent version of other two witnesses namely PW1 and PW2, it stands established that deceased had been living in a rented room in said area for more than six months prior to her death, said discrepancy is not material especially when accused in his statement u/s 313 Cr.P.C. has also come up with the defence that deceased had been living with her parents for last 6 months prior to her death.
41.10 As per PW14, she was residing 100 meters away from the house of deceased. It is pertinent to note that in the cross-
FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.77/137examination of PW14, a suggestion was put to her that Sheela had driven out Sanjay from her house 2-3 months prior to her death. Though the suggestion was denied by PW14 but the same suggests that even as per the defence plea, the accused was residing with the deceased and he left her house only 2-3 months prior to the date of her death, which is contrary to the defence put forward by accused in his statement u/s 313 Cr.P.C. wherein, he has stated that deceased had been living separately at her parental home for last six months prior to her death and he had never resided with her during her stay with her parents.
41.11 Pertaining to aforementioned circumstance, there is one more very material witness examined by the prosecution and she is PW19 Rajjo, the neighbour of the deceased. As per her version, she was knowing the accused whom she correctly identified in the court. PW19 further stated that accused used to reside in her neigbourhood alongwith his wife and children. As per her version, the deceased was having two children. On the date of incident in the morning, PW19 saw blood coming out of the room of the deceased and thereafter, she went to younger sister of deceased namely Babli and woke her up and apprised her about the blood in the room of the deceased. As per her version, she thereafter became unconscious and did not know anything else about the case.
41.12 As PW19 resiled from her previous statement, she was cross-examined by Ld. Addl. PP wherein, she stated that she did not know whether police had visited the room of the deceased because FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.78/137 she had become unconscious after seeing the blood. She further deposed that accused Sanjay and his family had already slept before she went to sleep. She deposed further that she had seen two children of the accused Sanjay inside his room though, accused was not found there. She deposed further that she had not seen Sanjay on that day in the house.
41.13 With regard to aforementioned deposition of PW19 to the effect that she had not seen accused Sanjay on that day in the house, Ld. defence counsel has strongly urged that said statement of PW19 reflects that accused was not present in the house with the deceased on the date of incident. However, here I may mention that deposition of a witness has to be read in the context in which it is given. Careful perusal of cross-examination of PW19 shows that she has deposed regarding absence of accused Sanjay in the house of the deceased not on the day prior to the date of incident but, she has talked about his absence in the house after she (PW19) noticed blood in the house of the deceased. Her deposition as a whole suggests that she had seen the two children of accused Sanjay inside deceased's room after she noticed the blood in the room but at that time, accused was not present in the room. The said position becomes more clear from her cross-examination recorded on 04.01.2016 when PW19 was recalled u/s 311 Cr.P.C., wherein she specifically stated that one day prior to the death of deceased, she had seen deceased's husband i.e. accused Sanjay and her children in the house of the deceased. She deposed further that she had not seen any person apart from the accused or deceased coming to the FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.79/137 house of deceased to meet her. She further deposed that she had started residing at the aforementioned address in Gulabo Camp, one month prior to the date of incident and when she came to live there, deceased was already residing there in that locality. She denied the suggestion that the third husband of deceased Sheela used to visit her house in absence of accused.
41.14 As per the site plan and the photographs of the place of occurrence, Smt. Rajjo was residing in the room adjoining to the room of deceased and throughout her cross-examination, she is consistent on her version that accused Sanjay was living with deceased and his two children in her neighbourhood and in the next morning of alleged incident, she had seen the children of deceased in her room but accused was not found present there.
41.15 Considering the aforementioned version of PW1 Smt. Babli, PW2 Satpal, PW14 Smt. Kamla and PW19 Smt. Rajjo, the prosecution has been able to prove that during relevant period accused was residing with the deceased in the same house. About 10-15 days prior to the incident, he had also accompanied the deceased to the hospital for her operation for family planning. Even as per PM report and version of autopsy surgeon, both side tubectomy was done on the deceased. Despite thorough grilling, all the four witnesses have successfully withstood the test of cross- examination as the defence has failed to show any material discrepancy to raise suspicion on their credibility. As pointed out above, the defence also seems to have taken different pleas because FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.80/137 at the time of cross-examination of PWs, the defence has come up with the case that the accused was driven out by the deceased from her house2-3 months prior to the incident and thereafter, he never joined back the deceased while, as per 313 Cr.P.C. statement of accused, deceased had been residing with her parents for last six months prior to date of incident and during her stay with her parents or even on the date of alleged incident, accused never lived with the deceased.
41.16 Though it was argued by Ld. defence counsel that accused has taken a plea of alibi as he was not present in the house with the deceased on the fateful night but in my considered view pleading absence on the place of incident is not a plea of ailbi because alibi is a form of defence used in criminal trial wherein the accused attempts to prove that he was at some other place at the time of alleged offence. Although, during cross examination of some witnesses, bald suggestions were put to the effect that during relevant time, accused was residing at Kishangarh with his parents. But, during his statement recorded u/s 313 Cr.P.C., the accused has nowhere disclosed as to where he was actually present on the fateful night when the deceased got murdered. Throughout the trial the accused seems to have taken the plea that two or three months prior to the incident, deceased had ousted him from her house where she was residing with her children and even on the date when the deceased was found murdered in her house, he was not living with her. However, except putting bald suggestions in this regard nothing has been brought on record by the accused from the cross FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.81/137 examination of prosecution witnesses in support of his plea that at the relevant time he was not living with the deceased. The accused also did not prefer to lead any evidence in defence to prove his defence that during relevant time, he was living at some other place and not with the deceased at her house where she was found murdered.
In view of the aforementioned discussion, prosecution has been able to conclusively prove the above circumstance on record.
Circumstance- (iii):- On 28.10.2011, at about 9:00 pm, accused was seen entering into the room of deceased and bolting the door of room from inside, by deceased's sister Babli, who was also living in another nearby room in the same plot.
42. For proving above circumstance on record, prosecution has examined only one witness PW1 Smt. Babli, the sister of deceased, on whose statement present FIR was lodged. Undisputeably, even an uncorroborated version of a sole witness can be relied upon provided the same is coherent, consistent, beyond reproach and does not suffer from any material infirmity or discrepancy. However, if some discrepancies are found in the version of sole witness, then court has to look for corroboration from some independent source. It is also a settled position of law that parties are required to lead best evidence to prove their respective case and if despite availability and opportunity, a material evidence is withheld from record, an adverse inference is liable to be drawn against such party. In this regard, I draw support from the judgment of Hon'ble Apex Court in Thakaji Hiraji vs. Thakore Kubersingh FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.82/137 Chamansingh (2001) 6 SCC 145 wherein it was observed by the hon'ble Apex court that, " it is true that if a material witness, who would unfold the genesis of incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand, if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of evidence already adduced, non examination of such other witnesses may not be material".
42.1 In the instant case, prosecution seems to have placed reliance on the testimony of PW1 by citing her as a witness of 'last seen' evidence on the premise that she had seen the accused entering into the room of the deceased while deceased was already present inside the room with her children and as such, she (PW1) had seen the accused and deceased alive together on the night of 28.10.2011 i.e. just few hours prior to a probable time of offence.
42.2 As per PM report Ex. PW9/A, postmortem on the dead body of the deceased started on 30.10.2011 at 11:45 am and concluded at 1:00 pm. The time of death opined on the PM report was 1½ day prior i.e. the midnight hours of intervening night of 28/29.10.2011, that is to say, accused was allegedly seen entering into the room of deceased about 3-4 hours prior to the incident. Admittedly, the dead body of deceased was found lying in the very FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.83/137 same room where she was residing with her husband and children.
42.3 Before scrutinizing the version of PW1 with regard to above circumstance, I may first mention that the circumstance of last seen together is taken into consideration for finding the accused guilty of offence when it is established that time gap between the point of time when the accused and deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could be completely ruled out. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period. Hence, if the prosecution proves that in the light of facts and circumstances of the case, there was no possibility of any other person meeting and approaching the deceased at the place of incident before the commission of crime, in the intervening period, the proof of last seen together would become a relevant evidence.
42.4 In the instant case, the room where the deceased was found murdered, was deceased's abode where she was living with the accused and two children. However, when PW1 was examined in the court for the first time on 03.04.2012, she though raised categoric allegation that accused had killed her sister and he used to force her for sex despite the fact that her sister did not want more children but, surprisingly, she did not disclose anything regarding presence of accused in the room of the deceased on 28.10.2011 i.e. prior to FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.84/137 probable date and time of occurrence. It is only when she was allowed to be cross-examined by Ld. Addl. PP, she responded to the suggestions put to her by Ld. Addl. PP by admitting that on 28.10.2011 at about 9:00 pm, her sister alongwith her children was inside her house and at that time, accused was lightening candle on the plant of Tulsi and after a while, accused went inside the room and bolted the door of the room from inside. But the above suggestion admitted by PW1 nowhere mentions that PW1 had herself seen the deceased with her children inside the room at the time when accused was allegedly lightening the candle on the Tulsi plant outside the room. Even with regard to alleged fact of accused having entered inside the room after lightening the candle on Tulsi plant, PW1 was not given any suggestion that she had seen the accused lightening the candle and entering the room.
42.5 As per the photographs of the place of incident available on record as Marl X1 to X17 (which though have not been proved in accordance with law), the room of the deceased was adjoining the room of Smt. Rajjo (PW19) whereas, the room of PW1 was on the other side of deceased's room and there was a vacant space between the deceased's room and the room of PW1. The location of their rooms becomes more clear from the site plan Ex. PW24/A, wherein room of PW1 is shown to be at a place depicted at point C and the room of the deceased is shown at point A. From the location of the rooms of the deceased and that of PW1, it is not possible for a person standing outside the room of PW1 to see inside the room of the deceased unless he comes in front of deceased's room. As per Ex.
FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.85/137PW1/A, PW1 had allegedly seen the accused lightening a candle on a Tulsi plant outside the room while she herself was standing outside her room and in such situation, it is not clear as to how she derived knowledge about the presence of the deceased and her children inside the room. Furthermore, as noted above, the suggestion put to PW1 was also not to the effect that she had seen the accused lightening a candle on Tulsi plant outside the room but, the suggestion was only to the effect that on 28.10.2011, at 9:00 pm, her sister alongwith her children was inside her house and at that time, accused was lightening the candle on the plant of Tulsi and after a while, the accused also went inside and bolted the door from inside. Though the above suggestions were admitted by PW1 but, the suggestions nowhere reflect that PW1 had herself witnessed the accused entering into the room of the deceased or having seen the deceased inside the room while the accused was lightening the candle outside the room. Even the photographs placed on record as Mark X1 to X17 of the place of occurrence nowhere show that any such plant of Tulsi was found lying outside the room of deceased nor even IO has shown location of any such plant of Tulsi in the site plan Ex. PW24/A of the place of occurrence.
42.6 Though in the light of my finding on the circumstance no.2, it has been conclusively proved by the prosecution that during relevant period, the accused and the deceased were living together in the rented room of the deceased at Gulabo Camp but, that itself will not prove that accused was present with the deceased in the same room on the fateful night. Besides testimony of PW1, there is FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.86/137 no other corroborative material to support the version of PW1 that deceased was present with the accused in her rented house in the night of 28.10.2011.
42.7 Here, it is very important to note that the two children of deceased, who even as per prosecution case, were present inside the room of the deceased on the fateful night could have thrown light on this material aspect regarding alleged presence of the accused with the deceased on that night. But, despite their presence inside the room, the IO seems to have not done any investigation in this regard. The charge sheet does not mention that even any inquiries were made by the IO from the children of the deceased. Except the statement Ex. PW1/A mentioning the fact that the two children of the deceased were also living with the deceased and her husband in the rented room, there is absolutely nothing mentioned in the charge sheet even about the presence of the children inside said room where the dead body of deceased was found lying.
42.8 During her cross examination by Ld. Addl. PP recorded on 05.09.2012, PW1 has specifically deposed that in the next morning, at 7:00 am, after she was informed by her neighbour that blood was lying in the jhuggie of her sister, she (PW1) came out and opened the jhuggie and saw the injury mark on the head of her sister. She further deposed that she had brought both the children of her deceased sister Sheela, who were sitting in the jhuggie on the cot. As per her version, the clothes of the children were having blood stains when they were brought outside the room by PW1. Further as per PW1, she FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.87/137 had informed the police about said fact but the same might have not been recorded in her statement Ex. PW1/A. 42.9 With regard to the number of children, who were residing with the deceased at the time of incident, prosecution witnesses have however, come up with a flip flop testimony. As per statement of PW1 recorded on 05.09.2012 as well as her statement Ex. PW1/A, the deceased was having three children namely Aakash, Vikas and Vishal. Vikas aged 7 years and Vishal aged two years, were the children of deceased from her second marriage with accused Sanjay @ Pappu and they were living with the deceased while Aakash was deceased's son from her first marriage who used to live with his father i.e. ex-husband of the deceased. But, in her cross examination recorded on 20.09.2013, she deposed that her sister was having three sons at the time of her marriage with accused Sanjay and the children were also residing with her sister at the time of incident. From said version, it appears that all three sons of deceased were living with her at the time of alleged incident. In her cross- examination, she further admitted that Master Aakash, who was the eldest son of deceased, was about 14-15 years at the time of alleged incident. Whereas, in her previous day cross-examination recorded on 05.09.2012, she stated that the elder son of Sheela from her husband Nanak was 10 years of age.
42.10 In the cross examination recorded on 06.11.2012, PW2 Satpal, who is the brother of the deceased, admitted the suggestion that children of deceased from Nanak, Jaimanter and Sanjay used to FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.88/137 reside with her. He however, denied that eldest son of Sheela born from her wedlock with Nanak was 14 years. He voluntarily stated that he was less than 10 years. He further deposed that eldest son was Vikas and he was 10 years and he was living with deceased at the time of her death. In the next breathe, he further deposed that Vikas was less than 10 years and it was the eldest son Aakash who was above 12 years. As per PW2, third son of deceased was Vishal and he was 5-6 years old.
42.11 I have also carefully perused the testimony of PW13 Ram Kumar, who is the another brother of deceased. As per his version recorded on 24.01.2013, both the sons of deceased namely Aakash, aged about 14-15 years and Vikas aged about 12-13 years, were living with the deceased at the time of alleged incident.
42.12 Considering the above version of family members of deceased, one thing is clear that the sons of the deceased, at least one of whom was above the age of 10 years, were also present with the deceased in the room on the date of incident. As already noted above, the IO Inspector Ishwar Singh (PW24) did not make any investigation with regard to the version of said children who were present in the room. There is no iota of material in the charge sheet to show that IO had even made any inquiries from said children to know about their version. In the cross-examination recorded on27.07.2016, the IO however, denied the suggestion that PW13 Ram Kumar had told him that children of deceased namely Vikas and Aakash were present in the house at the time of incident or that he FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.89/137 (PW24) deliberately concealed the above facts in the statement of PW13 Ram Kumar. PW24 further denied the suggestion that Vikas and Aakash, the children of the deceased were the eye witnesses or that he deliberately did not examine them as they were aware about the actual culprit namely Jaimanter (ex-husband of deceased). IO further deposed that Vishal and Vikas who were aged about 7 years and 2 years respectively, were residing with deceased and he had made inquiries from them but, they were not aware about the incident. The IO further deposed that the third son of the deceased namely Aakash was living with her ex-husband at some other place. PW24 feigned his ignorance if the fact about the inquiries made from Vishal and Vikas was mentioned by him in his case diary.
42.13 As is evident from the aforementioned version, the IO did not even explain as to why the children were not aware about the incident especially when they were present in the same room where the deceased was found murdered. There is no explanation from the version of IO as to whether the children remained unaware on account of their being not present in the room in the night or because they were sleeping in the night and did not hear anything. As per PW1 and PW19, the children were present in the room when they opened the door of the deceased's room in the morning at about 7:00 am which shows that the children were also present in the room with the deceased on the fateful night. Assuming for the sake of argument that the children were sleeping when the incident occurred in the night even in that event, the children would have definitely thrown some light on the fact as to who all were present in the room with FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.90/137 them before they went to sleep on that night. Hence in any case, the children would be certainly in a position to tell whether accused was also present in the same room before they went to sleep on that night.
42.14 The IO, for the reason best known to him, has left un- investigated a very material aspect which could have helped the police to unravel the truth and the court to arrive at a just conclusion. One of the child of the deceased, present in the room, was in any case more than 10 years of age as is also evident from the testimony of family members of deceased. The child of such age with average intelligence and understanding, was sufficiently competent to tell about the names of the persons who were present with them in the room on the date of incident before they went to sleep or regarding the fact that whether they had heard any noise in the night or to tell when they had last seen their mother alive and who was present with their mother at that time.
42.15 Considering the facts and circumstances of the case, it was incumbent upon the IO to get the statement of said children of deceased recorded u/s 164 Cr.P.C. The failure on the part of the IO not to record the statement of said children that too, when there is absolutely no explanation as to why their statements were not recorded, an adverse inference is liable to be drawn against the prosecution that if said children would have been examined, they would not have supported the prosecution case. In my considered view, the children of the deceased, who were present in the room on FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.91/137 the fateful night, would have unfolded the genesis of incident. The alleged presence of accused with the deceased in the same room on the fateful night was an essential part of the prosecution case therefore, their non examination in the case is definitely going to be fatal for the prosecution especially when in this regard, there is no other convincing evidence on record.
42.16 We cannot lose sight of the fact that on account of accused's alleged behaviour being abusive towards deceased for his obsession for sex, the family members of deceased were having hostility towards accused. As per PW1, her sister had confided with her that accused used to force her for sex and used to beat her whenever she refused to accede to his demand for sex. Further on account of said conduct, the accused was thrown out from her house by the deceased. In said background of the case, when there was strong hostility in the mind of deceased's family against the accused, their testimonies have to be considered with great care and caution and will not be safe to rely upon in absence of corroboration from some independent source.
42.17 In view of various discrepancies and infirmities as discussed above in the statement of PW1, her uncorroborated testimony is not safe to rely upon especially when there seems to be a deliberate attempt not to put forth other available evidence despite opportunity. Accordingly, I feel no hesitation in holding that prosecution has failed to bring any conclusive evidence to prove the aforementioned circumstance and thus, the circumstance no.3 FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.92/137 remained unproved on record.
Circumstance (iv):- Blood stained vest/baniyan of accused was seen lying near the dead body of deceased.
43. As per prosecution case, when the police reached the spot after receipt of Ex.PW3/A i.e. DD no.8A, they found dead body of a lady lying on a cot in a room and the name of the deceased was disclosed by the family members as Smt. Sheela. The dead body was naked from the upper portion and one kameej (kurta), shameej, bra, one baniyan and one chunni with blood stains were found lying on the floor near the cot. Out of said clothes seized from the spot, one baniyan made of net was seized vide seizure memo Ex.PW2/C. As per seizure memo Ex.PW2/C, Reebok was also written and logo of Reebok was also printed on said vest. Said seizure memo was prepared by Insp. Ishwar Singh SHO PS Vasant Kunj South and Satpal @ Chhotu, who is examined by the prosecution as PW2 and ASI Ashwani Kumar examined as PW21 are shown to be attesting witness of said seizure memo.
43.1 The said circumstance has been relied upon by the prosecution as incriminating on the premise that accused was a person of perverse mentality as he was having obsession for sex and he used to pressurize her wife i.e. the deceased for sex and even on the date of incident he got enraged when the deceased denied to have sex with him and left the house to bring some weapon to kill her. After procuring one Fawda/kassi from nearby, he returned back to the house and killed the deceased with the fawda and kitchen FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.93/137 knife and after killing the deceased, he removed the clothes worn by the deceased on the upper portion by tearing them off and grasped the dead body to satisfy his lust and after committing the act when his own clothes also got stained with blood, he took it off and fled away from the house after throwing the same on the floor and on the date of incident, the same was found lying among the other clothes of the deceased. Careful perusal of seizure memo shows that the suit/kameej/kurta of the deceased was found torn from the middle till the end and even the bra and shameej were also torn as one of the string of the shameej was found broken while the bra was also torn from one side.
43.2 With regard to recovery of aforementioned baniyan Mark X1 from the spot, PW1 did not say anything in her examination in chief and it is only in her cross examination by Ld. Addl. PP, she admitted the suggestion that one blood stained vest made of net belonging to her jeeja i.e. the accused was also found lying there in the jhuggi of her sister. However, when she was asked about the colour of baniyan, she was unable to tell the colour of that baniyan. At the time of her examination, the parcel containing said vest (baniyan) Mark X was brought by the MHCM and after opening the parcel, said baniyan with the hood and logo of Reebok was taken out and shown to the witness to which PW1 stated that it was not the baniyan of accused as the baniyan shown to her was having hood. She further deposed that she could not admit or deny whether the baniyan Mark X1 was of the accused because she had not seen it. She further deposed that police had told her about said fact because FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.94/137 said baniyan Mark X1 was not seized in her presence and rather the same was seized in the presence of her brother i.e. PW2.
43.3 PW2 is witness to the seizure memo Ex, PW2/C of said vest/baniyan but in his examination in chief he also did not tell anything regarding seizure of any such cloth by the police. When PW2 was put a leading question by ld. Addl.PP with the permission of court then only he admitted the suggestion that blood stained clothes of his sister were lying in the room where she was found lying dead. He further admitted the suggestion that one jaalidar baniyan of make Reebok stained with blood was also lying in the room. He also admitted that clothes of his sister and the baniyan of his jeeja were converted into parcel and were seized vide seizure memo Ex.PW2/C bearing his signature at point A. He deposed further that said document Ex.PW2/C was prepared in his presence vide which jalidari baniyan was taken into possession. PW2 identified his signature on the memo at point A. He stated further that he could not identify the clothes of his sister as the same were seized in the presence of his sister Babli because the clothes were ladies clothes but he could identify the jaalidar baniyan if produced before him. At that stage parcel no.2 brought by the MHCM was opened and one jaalidar vest with a hood and logo of Reebok was taken out and was shown to PW2 and he correctly identified the same as Ex.P3 as the one which was lying in the room. In the cross-examination by defence counsel PW2 admitted the suggestion that in his statement recorded before the court on the previous day, he had deposed that police had told him that one bra, one chunni and one salwar stained with blood had been FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.95/137 taken and they had taken the same with them.
43.4 It is pertinent to mention that seizure memo of the baniyan which is available on record as Ex.PW2/C nowhere mentions that the vest allegedly recovered from the place of incident was a hooded vest whereas, at the time of its production in the court by the MHCM it was found to be a hooded baniyan and for said reason PW1 even stated in her examination that the same was not the baniyan of the accused as said baniyan which was shown to her was having hood. Though she subsequently changed her version by saying that the baniyan was not seized by the police in her presence and since the same was seized at the instance of her brother therefore, she could not admit or deny the suggestion that said baniyan mark X1 was of the accused because she had not seen it and it was the police who had told her about this fact.
43.5 In view of the fact that there is a discrepancy in the statement of PW1 wherein she seems to have initially raised doubt about said cloth Mark X1 belonging to the accused by saying that it was having a hood, coupled with the fact that even PW2 did not utter a word regarding seizure of any such cloth Mark X1 by the police in his presence during his examination in chief despite the fact that he had specifically deposed regarding his being informed by the police about the seizure of the clothes of deceased, raises a serious doubt on recovery of said cloth by the police from the spot and further there is no cogent evidence even to show that said baniyan belonged to the accused. Neither PW1 nor PW2 have deposed in their statement FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.96/137 that they had seen the accused wearing said baniyan on the date of incident or even prior to that. Furthermore, as per FSL report of Biology Division Ex. PW23/A, the parcel no.2 containing Exhibit 2 (which as per seizure memo Ex. PW2/A was a jaalidar vest), was a T- shirt and there is nothing to show that it was hooded vest or it was knitted or of net.
In view of above facts and circumstances, the prosecution has failed to conclusively prove the aforementioned circumstance on record.
Circumstance(v) & (vi): The upper portion of dead body of deceased was naked and her blood stained shirt, undershirt, bra and chunni were found lying near the dead body.
Few days before her death, deceased confided with her sister that her husband used to force her for sex despite her having recently undergone sterilization operation and he Used to beat her whenever, she refused for sex.
44. PW8 and PW21, who first reached the spot after DD no.8A, have consistently deposed that when they reached the spot, the upper portion of dead body above the waist was naked. Their version in this regard also stands corroborated by IO PW24 Inspector Ishwar Singh as well as brother of deceased namely Satpal.
44.1 From the aforementioned circumstance, the prosecution has tried to prove that the accused was obsessed about sex and whenever, deceased refused to accede to his demand for sex, he FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.97/137 used to beat her and even on the date of incident, when deceased refused to have sex with him, he got enraged, left the home and after sometime, he returned back with a kassi/fawra and murdered the deceased by slitting her throat and thereafter, he torn the clothes of deceased which she was wearing on the upper half and tried to have sex with the dead body. In this regard, Ld. Addl. PP has drawn attention of this court to the fact that as per the seizure memo Ex. PW2/B of deceased's clothes, half sleeved ladies shirt of blue colour was found in torn condition and front portion of said shirt was torn in two pieces from the middle, the ladies bra of white colour was also torn from one side, the string of the ladies shamiz (undershirt) was also torn. It is argued on behalf of the prosecution that since the deceased died after brutal assault of fawra on her neck, the accused torn her clothes which she was wearing on her upper portion before having sex with the dead body. However, as per record, during investigation, vaginal, vulval, perianal anal and control swab of deceased were also taken as Ex. 11, 12, 13, 14 & 15 respectively but, as per FSL report Ex. PW23/A, no semen was detected on said exhibits. Even on nail clipping, no skin could be detected as per said report.
44.2 Prosecution has relied upon the version of deceased's sister PW1, who has deposed in her examination in chief that her Jeeja i.e. accused used to harass her sister for sex and the deceased had told her this fact that the accused used to open her Salwar and would not even wait for the children to sleep. She further deposed that her sister did not want more children therefore, she asked the FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.98/137 accused to wait till she gets herself operated. In her cross- examination by Ld. Addl. PP, she admitted that accused used to force her sister for sex and whenever her sister used to deny for the same, the accused used to beat her. She further admitted the suggestion that her sister was operated for sterilization and her Jeeja had attempted to have sex with the deceased just after 2-3 days of operation and said facts were told to her by her sister. Even in her cross-examination, PW1 has remained consistent except that though she claimed to have disclosed said fact of the deceased having confided with her to the police in her statement Ex. PW1/A, but it was not so recorded in said statement. However, it is a settled law that FIR is not supposed to be an encyclopedia of sequence of incident and is not required to contain all minute details. Thus, absence of such details in the statement of the complainant, cannot be a ground to doubt the truthfulness of complainant's version in this regard.
44.3 It is vehemently argued on behalf of the accused that the version of PW1 regarding alleged harassment of deceased by the accused on account of his perverse behaviour is nothing but, a hearsay evidence and cannot be relied upon. In this regard, I may mention that Section 32 of Indian Evidence Act is an exception to the principle of inadmissibility of hearsay evidence.
44.4 Section 32 (1) of Indian Evidence Act makes a statement written or verbal of a relevant fact made by the person who is dead as admissible when such statement is made by such person as to the cause of his death, or as to any of circumstances of the transaction FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.99/137 which resulted in his death, in cases in which the cause of that person's death comes into question.
44.5 As per prosecution case, the deceased had got operated for sterilization as she did not want more children and said operation was conducted 10-15 days before the date of incident. As per the deposition of PW1, her sister had told her about the fact that she was subjected to forcible sex by her husband just after 2-3 days of her operation, the same thus leads to an inference that the deceased had disclosed said facts 5-10 days to her sister before her death. As per prosecution, the motive of offence was to take revenge because accused was obsessed for sex and when deceased refused for sex, he got revengeful and killed her. In said circumstances, deposition of PW1 to the effect that she was told by the deceased that accused had subjected her to forcible sex a number of times and also subjected her to beatings, whenever she refused to accede to his request, becomes a relevant fact. Said fact confided by the deceased to her sister is one of the circumstance of transaction which led to her death and thus, falls in the category of dying declaration within the meaning of Section 32 (1) of Indian Evidence Act and hence, same is admissible under law.
Considering the aforementioned factual and legal position on record, I feel no hesitation in holding that prosecution has been able to conclusively prove both the above circumstances.
Circumstance- (vii) :- On 28.10.2011 at about 10-11:00 pm, accused was seen carrying one kassi/fawra in his hand by one FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.100/137 shopkeeper of nearby locality.
45. For establishing said circumstance on record, the prosecution has examined one witness Tejram as PW6. As per prosecution case, said witness was running a grocery shop in nearby locality and he had seen the accused carrying kassi/fawra in his hand on the intervening night of 28/29.10.2011. On the other hand, the defence has vehemently argued that the said witness is a planted witness and on account of various discrepancies in his statement, said witness even otherwise is not reliable.
45.1 Before discussing the testimony of said witness, I may first mention that for the purpose of assessing the credibility of a witness, the Court has to consider evidence of a witness to find out as to how he has fared in the cross examination and what impression is created by his evidence, taken in context of other facts of the case. Law recognizes following ways in which evidence of witness can be termed unreliable; (a) the witness's statement is inherently improbable or contrary to the course of nature, (b) his deposition contains mutually contradictory or inconsistent passage, (c) he is found to be bitter enemy of the opposite party, (d) he is found not to be a man of veracity, (e) he is found to have been bribed or accepted any other corrupt inducement to give evidence, and (f) his demeanor, while under examination, is found abnormal and unsatisfactory.
45.2 The defence counsel has vociferously argued that the statement of said witness Tejram u/s 161 Cr.P.C. was recorded by the IO after two days of the incident i.e. on 31.10.2011 whereas, as per FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.101/137 his version, he had come to know about the murder of the deceased just on the subsequent day i.e. on 29.10.2011. It is further argued that as per statement of said witness u/s 161 Cr.P.C., Tejram was knowing the accused by name and was also aware of his relationship with Satpal, the brother of the deceased whereas, in his examination in chief, he deposed that he was not knowing accused by name. It is further argued that as per the version of PW6, there was no electricity meter in the shop where the accused allegedly visited him to ask for kassi/fawra and even outside the shop, there was no electric pole and therefore, in absence of any source of electricity, it was not possible to identify a person in complete darkness and the possibility of error of identification, cannot be ruled out. It is further argued that as per the witness, he was running a grocery shop and therefore, there was no occasion for the accused to ask for an item like fawra from PW6 and the prosecution has cooked up this story to suit its case. It is further argued that as per the version of PW6, he was having a big house with four rooms just 200 sq. yards away from his shop and therefore, there was no reason for him to sleep in a small Khoka and said circumstance also raises a serious doubt on the story of the prosecution.
45.3 As per examination of said witness, he was having grocery shop on the road outside the residential area of Gulabo Camp. PW6 deposed that he was knowing the accused (whom he correctly identified in the court), as accused was residing at some distance from his shop. He further deposed that it was 10:00-11:00 pm and after closing the shop, he was sitting inside his shop. Further FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.102/137 as per his version, he already had his dinner and after switching off the light, he was preparing for sleep as he used to sleep inside his shop. He further testified that at that time, accused came to him and asked if he (PW6) had a kassi/fawra to which he replied that he had no business with kassi and therefore, he did not have any kassi. Thereafter, accused went towards residential area. PW6 further stated that after 10-15 minutes, the accused passed by his (PW6's) shop while carrying kassi in his hand. He further deposed that he did not know from where accused had brought kassi. Further that, next day, in the morning, at about 6:00 am, PW6 opened his shop and from one lady, who had visited his shop for fetching milk, PW6 came to know that a man had killed his wife. He further deposed that he did not know the name of the accused as he was not knowing him by name. PW6 further stated that after 2-3 days, he was called in the PS and inquiries were made from him.
45.4 PW6 was cross examined at length by the defence counsel wherein he further deposed that he had been residing with his family at Jhuggie no.330, Gulabo Camp, Rangpuri Pahari, Delhi since 1984 and was running a grocery shop where he used to sell grocery items like grains, pulses, sugar etc. for about 8 years. Further as per his version, the said shop was 10x12 ft. in size and it was a khoka like a dabba (box) and said shop used to remain close whenever, he had to go to purchase items for his shop. PW6 further testified that there was no electricity meter installed in his shop and it was a hilly area and jungle nearby his shop. Further as per his version, it was summer season and the day was around Bhaiya Dooj.
FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.103/137He used to open his shop at 6:00 am and used to close it at about 10:00 pm. Further as per his version, he used to keep the sale proceeds of the day in his khoka/shop and there was no light outside his shop nor there was any electric pole. However, at the distance of 10-12 meter from the end of the road, some houses were built. Further as per his version, the width of the road where shop was located was 20-22 feet and his house was situated towards the right side of his shop at the distance of 200 yards. He denied the suggestion that he used to go his house after closing his shop. He denied the suggestion that he was having that khoka or that it was measuring 10X12 fts. He denied the suggestion that he had not seen the accused taking the kassi or that accused had never visited his shop to demand kassi or that there was no occasion for the accused to ask for kassi as he (PW6) was selling the grocery items. He denied the suggestion that he was deposing falsely at the instance of IO. He further denied the suggestion that he had good relations with the police officials of the beat or for that reason, he became a witness at the instance of the police. He denied the suggestion that he was a planted witness. He denied the suggestion that it was not the summer season or that it was very cold at that time. As per the calender of year 2011, the festival of Deepawali had fallen on 26.10.2011 and 28.10.2011 was a day of Bhaiya Dooj festival. That is to say, the alleged incident had occurred just after two days of Amavasya (no moon day) hence, there was no possibility of sufficient moon light to be there to identify a person from a distance and since it was end of October, the winter season was about to start. As per PW6, the accused had come to his shop on that day at 10:00-11:00 FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.104/137 pm and at that time, PW6 was sitting inside his shop and the lights of his shop were switched off. He further deposed that he did not know the name of the accused as he did not know him by name. He further deposed that he knew the accused as he was residing at some distance from his shop.
45.5 As per PW6, prior to seeing the accused going towards residential area with a kassi in his hand, the accused had first visited his shop and asked him whether PW6 was having kassi/fawra in his shop. Here, the alleged conduct of accused coming to the shop of PW6, who was running a small grocery shop/khoka, to ask for kassi, seems quite improbable and contrary to normal course of conduct. As per version of deceased's brother, accused himself was working as a labour with mason then why would he ask for kassi from a grocer.
45.6 Even if it is believed that accused was not a complete stranger to the witness and was acquainted to him even in that case, witness had just seen him passing by in front of his shop, the chances of error in the identification cannot be ruled out especially when, there was no light on the road or in the shop and even the moon light was not sufficient as it was a day just two days after Deepawali which always falls on Amavasya (no moon day), thus the sky would also be dark. As per PW6, he was about to sleep after switching off the light, when the accused allegedly visited his shop and in that situation, it was not possible that even after 10-15 minutes, the witness was still awake and sitting in the shop, so as to have an opportunity to see the accused at the distance of 10-11 fts away or even more than that FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.105/137 because as per the witness, width of the road in front of his shop was 20-22 fts. From the suggestions put to PW6 in his cross examination the defence has tried to suggest that the witness was close to the police officials of the police beat/division as they used to visit his Khoka for purchase of Bidi/cigarette from his shop, therefore, he had become a witness at their instance.
45.7 The above possibility cannot be ruled out because, as per statement u/s 161 Cr.P.C. of said witness, he had informed the police, not only about the name of accused but also about his (accused), relationship with deceased's brother Satpal. Whereas, in his examination in chief, he deposed that he was not knowing the accused by name. Further, the shop of said witness was a small temporary structure, as in his examination, he himself stated that it was a khoka like dabba (box) while his own house consisting four rooms was just 200 yards away from his shop. In said circumstances, his presence in his khoka at 10-11 pm in the night is not free from doubt.
45.8 There is one more aspect of the matter. As per prosecution case, statement of said witness Tejram was recorded on 31.10.2011 i.e. after two days of alleged incident. Record reveals that Tejram had first disclosed it to Satpal that he (Tejram) had seen accused with kassi/fawra on the night of 28.10.2011. Thereafter, Satpal informed the police and police then called Tejram and recorded his statement. In this regard, supplementary statement of Satpal dated 31.10.2011 is also on record.
FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.106/13745.9 In above circumstances, when Tejram had first disclosed the above facts to Satpal before telling the same to police, it is highly improbable that Satpal would commit such a mistake that he would admit a suggestion put to him by Ld. Addl. PP that it was he (Satpal) who had seen accused carrying kassi in his hand on the night of 28.10.2011 or that accused had come to him (Satpal) to ask for kassi on said date.
45.10 Though, at the time of his cross-examination by Ld. defence counsel, Satpal (PW2) tried to cover up the above flaw in his testimony by saying that it was done by mistake, but how could he make such a mistake when he (Satpal) himself had brought this fact into the notice of police after Tejram disclosed it to him (Satpal). Had the witness Tejpal (PW6) been actually a true witness, there would not have been any possibility of said mistake on the part of PW2 Satpal. Even if the prosecutor had put a wrong suggestion to him in his cross-examination, PW2 would have instantly denied said suggestion and made it clear that it was Tejram who had seen the accused carrying kassi/fawra on the night of 28.10.2011.
45.11 The above circumstances rather falsify the prosecution case that Tejpal (PW6) had first informed Satpal (PW2) that he had seen accused with Kassi/fawara on the fateful night or that thereafter, police had recorded his (Tejpal's) statement on 31.10.2011.
FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.107/13745.12 Considering above discrepancies and infirmities in the prosecution case and in the testimony of prosecution witnesses, I do not find the witness Tejram trustworthy or reliable. In the light of aforementioned discussion, I am of the view that prosecution has failed to conclusively prove even the above circumstance on record.
Circumstance (viii) :-Recovery of blood stained kassi and a knife at the instance of accused pursuant to his disclosure statement.
46. Prosecution is strongly harping upon the above circumstances for proving its case against the accused. As per prosecution case, the accused was arrested on 03.11.2011 vide arrest memo Ex. PW3/A and on the date of his arrest, he made a disclosure statement vide disclosure Ex. PW13/C before police that he killed his wife with a kassi and kitchen knife and after committing murder, he threw away said kassi and knife on the way to jungle while going from Shiv Mandir to Rangpuri and he could get recover said weapons used in the murder from there. The pointing out memo of the place of recovery of said articles is available on record as Ex. PW13/B which shows that the kassi was recovered after the accused led the police team to the Kacha rasta going from old Shiv Mandir, Ruchi Vihar towards Rangpuri and at about 80 yards distance from Shiv Mandir, there was a vacant plot of K.L. Garg and Satish Garg and in front of that plot, there was another vacant plot and from there, the accused got recovered the knife and kassi from inside the bushes which were about 10 ft. away from the wall of said plot. The site plan was prepared at the spot and a scaled site plan of said place was FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.108/137 later got prepared through draftsman. Said site plan and scaled site plan are available on record as Ex. PW13/D and PW21/G respectively and said site plan also mentions the same location of place of recovery of said objects as is mentioned in the pointing out memo Ex. PW13/B. Before seizing said articles, the IO had also prepared the sketch of fawra and knife and same are also available on record as Ex. PW9/C and Ex. PW9/B. 46.1 On the disclosure memo, seizure memos and the pointing out memos and the site plan Ex. PW13/D, ASI Ashwani Kumar and Ram Kumar are shown to be the attesting witnesses and the same were prepared by IO Inspector Ishwar Singh.
46.2 Before touching the argument raised from the defence counsel about admissibility of said evidence regarding recovery of incriminating fact pursuant to a disclosure statement made by accused in police custody, we need to first check the credibility and trustworthiness of the witnesses examined in this regard.
46.3 For proving the aforementioned circumstances, the prosecution has examined two witnesses namely ASI Ashwani Kumar and deceased's brother Ram Kumar as they both are attesting witnesses of the seizure memo of said articles. The testimony of IO Inspector Ishwar Singh, who was leading the police team at the time of recovery of said articles, is also important to consider the above circumstance.
FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.109/13746.4 First of all, let us advert to the testimony of PW13 Ram Kumar who is the brother of the deceased. As per his examination in chief, on 03.11.2011, he was called up by the police and informed that accused Sanjay @ Pappu i.e. his brother in law had been arrested and he (PW13) was asked to visit police station. PW13 went to the PS on the very same date and met 3-4 policemen with the IO inspector Ishwar Singh and the accused in the PS. In his presence, police interrogated accused, who made a disclosure statement wherein, accused disclosed that he had killed his wife Sheela (deceased) with fawra and knife and said fawra and knife had been kept by him in the bushes near a Mandir situated near his house i.e. Ruchi Vihar and said place where he had hidden the fawra and knife was at the distance of 70-80 ft. away from his house. Further that, accused whom the witness correctly identified, led them (police and PW13) to that place and took out from there a knife and a fawra. PW13 further deposed that fawra and knife were converted in a cloth parcel and seized by the police vide seizure memo Ex. PW13/B bearing his signature at point A. Further as per PW13, he had also witnessed the disclosure statement of the accused Ex. PW13/C recorded by the police and the same was bearing his signature at point A. Witness/PW13 further deposed that he could not tell the measurement of the fawra and knife but the knife was a kitchen knife.
46.5 During examination of PW13, MHC (M) had brought two cloth parcels i.e. parcel no.8 in respect of fawra/kassi and parcel no. 7 in respect of knife, both bearing the seal of FSL, AC, Delhi and FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.110/137 particulars of the present case. After opening the parcels, when said objects were taken out and shown to the witness, same were correctly identified by PW13 and same were exhibited as Ex.P-1 and P-2. The witness further deposed that both the aforementioned items were got recovered by the accused in his presence and the site plan of the place of recovery of said articles was also prepared by the police and the same is Ex. PW13/D bearing his signature at point A. PW13 also identified his signature on the sketch of the knife Ex. PW13/E bearing his signature at point A and deposed that same was also prepared by the police after recovery of said articles.
46.6 PW13, in his cross-examination by defence counsel, admitted the suggestion that on 03.11.2011, he left the police station at 5:00 pm alongwith his family members. He further deposed that after coming from the PS, he remained at his home between 5:00 pm to 8:00 pm on that day alongwith his mother, sister and brother as they had also visited police station with him on that day (03.11.2011). He further deposed that he did not remember the time when his statement was recorded by the police but, it took about 20- 25 minutes in recording his statement by the police. He further deposed that he did not remember if statement of any other person of his family was also recorded on that day. He did not remember if he had put his signature on any documents in the PS on that day. Further that, some writing work was done in the PS but, he could not say which policeman had done that.
46.7 PW13 further stated in his cross-examination that there FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.111/137 was no cloth piece wrapped on the knife and fawra/kassi, which were lying in the PS. He further deposed that the distance between his house and the PS was about 2-3 KM. Further that, on 03.11.2011, since morning upto 4:00 pm, when he received a call from the police station, he remained at his home with his other family members. He admitted the suggestion that kassi/fawra was lying in an open place in shrubs and that place was accessible to all. He further deposed that people had been coming and going there at the time of recovery of kassi. As per PW13, they remained at the place of recovery for half an hour and then, went to PS in police gypsy. He denied the suggestion that accused had not got recovered any kassi/fawra or knife as stated by him in the examination in chief or that he had not joined the recovery proceedings. He denied the suggestion that he had not visited the place of alleged recovery with the police or that he was deposing falsely.
46.8 Per contra, defence counsel has strongly refuted the above case of prosecution by submitting that no recovery was effected at the instance of accused and the police has concocted a story regarding recovery of weapons of offence just to plant said weapons on the accused. It is further argued that even the witness Ram Kumar examined as PW13, has deposed in his cross-examination that the knife and fawra which were lying in the PS were not wrapped in any cloth which itself shows that the knife and fawra/kassi were planted by the police and the same were never recovered at the instance of accused as claimed by the prosecution. It is further argued that as per PW13, on 03.11.2011, he had received a phone FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.112/137 call from the PS only at 4:00 pm and till 4:00 pm, he remained at his house with his other family members and had gone to police station alongwith his mother, sister and brother and they all returned back home at about 5:00 pm and from 5:00 pm to 8:00 pm, he remained at his home with his mother, sister and brother.
46.9 Ld. Defence counsel has drawn my attention to the cross examination dated 20.09.2013 of PW1 Smt. Babli, who is the sister of PW13, wherein she has deposed that on 03.11.2011, her elder brother namely Ram Kumar was informed regarding the arrest of accused at 10:00 am and thereafter, they all proceeded to PS and remained there till 4:30-5:00 pm. She further deposed that they all returned back together to their respective houses. She further deposed that no police official had visited her house to meet her but she could not tell regarding his brother. Further as per the version of PW1, they all remained inside the police station between 10:00 to 4:30-5:00 pm and no one went out during that period till they left for their respective houses.
46.10 It is vehemently argued that police has manipulated the story of PW13 Ram Kumar having joined them at the time of alleged recovery of weapons of offence at the instance of accused because the version of recovery witness/PW13 is absolutely contrary to the version of his sister/PW1Babli who had also visited the PS alongwith him (PW13) on 03.11.2011 after the arrest of accused.
46.11 It is further argued that as per version of PW1, the FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.113/137 information regarding arrest of accused was received in the morning at about 10:00 am and immediately thereafter, they all proceeded to PS and came back only at 4:30-5:00 pm and during their stay in the PS till 5:00 pm, none of them went out of police station. The counsel argued that said version of PW1 clearly establishes that witness Ram Kumar was not taken anywhere with the accused after the alleged arrest of accused on 03.11.2011 nor PW13 had joined the police at the time of alleged recovery of said weapons of offence.
46.12 Before appreciating the above arguments raised by the defence counsel, I deem it appropriate to first have a look on the testimony of other recovery witnesses namely ASI Ashwani Kumar and the IO Inspector Ishwar Singh.
46.13 With regard to recovery of alleged weapons of offence, PW21 Ashwani Kumar in his examination in chief, deposed that on 03.11.2011, at about 12:30-1:00 PM, brother of accused informed him on his telephone that accused was with him (brother of accused). After said information, police team reached at Bus stand, Sultanpuri where accused was found standing with his brother Mahavir. Accused was interrogated and thereafter, he was taken to police station where he was handed over to IO Inspector Ishwar Singh. IO interrogated accused, recorded his disclosure statement Ex. PW13/C bearing signature of PW21 at point B. 46.14 PW21 further deposed that at the time, when accused was interrogated by the IO, the brother of deceased was also present FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.114/137 in the PS. As per PW21, he and Ram Kumar (PW13) had also accompanied the IO at the time of recovery of weapons of offence from the place near Shiv Mandir, Rangpuri Pahari. Further as per PW21, accused had pointed out at the bushes at the distance of 80 ft. from Shiv Mandir towards Ruchi Vihar and from said bushes, accused picked up one knife and kassi on which, blood stains were also noticed. IO checked the knife, prepared its sketch as Ex. PW13/E, on taking measurement, the total length of knife was 20 cm out of which, blade was 10.4 cm and the handle of knife was made of wood. PW21 further deposes that IO converted the recovered kitchen knife and kassi into two separate parcels, sealed them with the seal of IS and seized the same vide Ex.PW13/B, bearing his (PW21) signature at point B. PW21 further deposed that total length of kassi was 69 cm and length of its blade was 24.6x 26 cm. PW21 further proved on record the site plan Ex. PW13/D of the place of recovery by identifying his signature on the same. He further deposed that thereafter, they returned to PS and sealed parcels were deposited with MHC(M) and accused was put up in lock up after medical examination.
46.15 In his cross-examination, PW21 deposed that accused was apprehended at 2:00 pm on 03.11.2011 on the information of his brother Mahavir and after apprehending the accused, the police team with the accused returned to PS at 4:15 pm. As per his version, on 03.11.2011, when police team returned with the accused to PS Vasant Kunj, no family member of the deceased was present at the police station. However, after their arrival, deceased's brother FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.115/137 Rampal reached there within five minutes though, he (PW21) had no knowledge whether Rampal had come to the PS on his own or he was called by any other person. He denied the suggestion that on 03.11.2011, family members of the deceased namely Babli and her two brothers were present in the police station since 10:00 am. PW1 further deposed that on 03.11.2011, deceased's brother Rampal remained in the PS for 1½ or two hours. Thereafter, he accompanied the police party in conducting the raid that was conducted for effecting recoveries. He admitted the suggestion that the place of recovery was an open piece of land and was accessible to all. He further deposed that on 03.11.2011, the brother of the deceased was relieved at the place of recovery itself. He denied the suggestion that no raid was conducted by the police with the brother of deceased at the place from where the recoveries were allegedly effected. He denied the suggestion that on 03.11.2011, he had called brother of deceased and pursuant to that, he had reached police station at 4:30 pm and he was relieved at 5:00 pm. He further deposed that at the time of recovery, IO had requested passersby to join the proceedings but they expressed their reluctance and left. Further as per PW21, IO had recorded his statement on 03.11.2011 at 10:00 pm on their return to PS after effecting recoveries.
46.16 From the aforementioned discussion, testimony of recovery witnesses are inherently inconsistent and they are not even in consonance with each other. As per PW1, Smt. Babli, her brother Ram Kumar had got the information from the PS regarding arrest of the accused at 10:00 am and thereafter, they all proceeded to the PS FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.116/137 and remained there till 4:30 to 5:00 pm and thereafter, they all returned back together and went to their respective houses. In her cross-examination, she has further deposed that during their stay in the PS from 10:00 to 4:30-5:00 pm, no one went out till they left for their respective homes.
46.17 Whereas, PW13 in his examination in chief, nowhere talks about the presence of any of his family members when he reached PS on 03.11.2011 as he simply stated that pursuant to an information regarding arrest of accused from the PS, he went to PS on that day and when he reached there, he found 3-4 policemen with IO Inspector Ishwar Singh and accused Sanjay @ Pappu present in the police station at that time. However, in his cross examination recorded on 24.01.2013, PW13 deposed that on 03.11.2011, he alongwith his mother, sister Babli and brother Satpal had reached PS at 4:30 pm and they all remained there till 6:00 pm and during said period, no other proceedings were conducted by the police except interrogation with the accused and some writing work in his presence. As per his cross-examination recorded on 06.07.2013, after coming from the PS at 5:00 pm on 03.11.2011, he remained at his home from 5:00 pm to 8:00 pm. 46.18 From the above discussion, there are serious discrepancies in the version of PW1 and PW13 because at one place, in his examination in chief, PW13 stated that on 03.11.2011 when he reached the PS, no one from his family had accompanied him but in his cross-examination recorded on 24.01.2013, he deposed that his FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.117/137 mother, sister and borther were also with him. Whereas, as per version of PW21 ASI Ashwani Kumar recorded on 19.01.2013, on 03.11.2011, after arresting the accused when he alongwith other members of the police team reached the PS, the accused was handed over to SHO who interrogated the accused and recorded his disclosure statement and at that time, brother of deceased was also present in the PS. PW21 in his cross-examination recorded on 21.04.2014, specifically deposed that when he alongwith the other police persons returned to the PS Vasant Kunj after apprehending the accused, no family member of the deceased was present in the PS though, deceased's brother arrived within five minutes of their arrival in the PS and he was present at the time of recording of disclosure statement of accused and later, accompanied the police team to the place of recovery but, as per his version, after completing the recovery proceedings, the deceased's brother Rampal was relieved from the spot itself.
46.19 If the version of PW21 is read as a whole, it shows that the recoveries were effected in the presence of PW13 Rampal/Ram Kumar and after recovery of weapons of offence, IO had converted the same into pullandas, sealed the same with the seal of IS and seized the same vide seizure memo Ex.PW13/C and thereafter, the police team alongwith the accused and PW13 came back to PS in police gypsy. In view of his version, both weapons of offence were brought to the PS in sealed pullanda but, the version of PW13, when he was cross-examined by the defence counsel on 06.07.2013, shows that on 03.11.2011, he was in the PS only uptil 5:00 pm and during FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.118/137 that period, except recording the disclosure statement of the accused, no other proceedings took place. Further as per his version, there was no cloth piece wrapped on the knife and fawra/kassi which were lying in the PS which again creates a serious doubt on the prosecution story that knife and fawra were recovered pursuant to the disclosure statement of accused or that the accused had led the police team to the place of recovery and got the weapons recovered in the presence of deceased's brother Rampal or that after the recovery of weapons, both the weapons were kept in cloth pullandas and sealed with the seal of IS or that weapons were brought to the PS in sealed pullandas. There are inherent contradictions in the version of PW13 and same is also not in consonance with the version of other recovery witnesses.
46.20 The prosecution story gets shrouded with more doubts when we peruse the testimony of IO/PW24 Inspector Ishwar Singh as per whom, only police team had reached the place of recovery with the accused pursuant to his disclosure statement. PW24 does not talk about the presence of deceased's brother in the PS after the accused was brought by the police team after his apprehension or at the time when PW24 recorded his disclosure statement. It is very important to note that as per PW24, the brother of deceased had joined them only at the place of recovery. As per his version dated 13.05.2016, public persons refused to join the recovery proceedings at Shiv Mandir despite his (PW24) request but deceased's brother Ram Kumar arrived there and joined the proceedings with police team at the time of recovery of weapons. As per his version, the FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.119/137 seizure memo of knife and kassi allegedly recovered from the place near Shiv Mandir, was prepared at the spot of recovery. As per the seizure memo Ex. PW13/B, PW13 is the attesting witness of said seizure memo which implies that same was prepared in his presence. But, the version of PW13 where he said that no cloth piece was wrapped on knife and kassi when same were lying in the PS, raises a serious doubt on the truthfulness of the prosecution case regarding recovery of weapons at the instance of accused.
In view of aforementioned version of witnesses, which suffers from serious infirmities and contradictions, I feel no hesitation in holding that prosecution has failed to conclusively prove even the aforementioned circumstance on record.
Circumstance (ix) :- Subsequent opinion of the doctor regarding possibility of injuries shown in PM report caused with kassi/knife recovered during investigation.
47. For proving aforementioned circumstance, prosecution has relied upon the testimony of PW9Dr. Shashank Puniya who conducted postmortem on the dead body of deceased. As per his version, IO Inspector Gagan Bhaskar had submitted an application for opinion regarding weapon of offence and same was marked to him on 02.01.2012 wherein, IO had asked his opinion whether the injuries caused to deceased Sheela could be possible with the recovered weapons or not. Alongwith the application, original PM report and two sealed pullandas were also submitted by the IO. As per version of PW9, both the sealed pullandas were sealed with the seal of IS and after opening, the same were found containing knife and kassi/fawra.
FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.120/137The measurement of said knife and the fawra/kassi taken by PW9 are matching with the measurement given by the IO in the seizure memo of said recovered weapons.PW9 further deposed that after perusal of PM report and examination of alleged weapons, he was of the considered opinion that injury no.1 as mentioned in PM report Ex. PW9/A could be produced by fawra and injury no.2 to 6 could be possible by knife and he proved his opinion in this regard on record as Ex. PW9/B. As per PW9, after examination, both the fawra and knife were duly sealed with the seal of department and same were handed over to the IO alongwith sample seal of department. He denied the suggestion that knife and fawra were not properly measured by him.
47.1 As per PW23 Inspector Gagan Bhaskar, on 28.12.2011, he had got submitted the weapons of offence and PM report with Forensic Department, AIIMS through ASI Ashwani for subsequent opinion about the injuries caused by the recovered weapons and he collected the subsequent opinion Ex. PW9/D from forensic department, AIIMS alongwith exhibits on 04.01.2012. The testimony of Dr. Shashank with regard to possibility of injury no.1 and 2 to 6 being caused by use of recovered weapons examined by him, has gone unrebutted.
Hence, in view of the unrebutted testimony of PW9, the above circumstance stands proved on record.
Circumstance (x):- The blood group of the blood found on the knife Ex. P-1 seized vide seizure memo Ex.PW13/C got FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.121/137 matched with the blood group of the deceased.
48. As per prosecution case, pursuant to the disclosure statement of the accused, a blood stained knife Ex. P-1 was recovered vide seizure memo Ex.PW13/C and said knife was sent to FSL, Biology Division for comparison of blood detected on it with the blood of deceased. In this regard, the FSL 2012/B-232 Bio no.62/12 dated 11.05.2012 is available on record as Ex. PW23/A which shows that 18 parcels in connection with the present FIR were received in the office of FSL, Rohini on 11.01.2012. As per said report, blood was detected on Exhibit 7 contained in parcel no.7 which was a sealed cloth parcel having seal of MS Department of Forensic Medicine. The said report further mentions that parcel no.10 was containing blood in gauze of the deceased which was given Exhibit No. 10. There is another report Ex. PW23/B of Biology Division of the same date and perusal of same shows that upon examination, on Exhibit No. 7 & 10, human blood of B group was found. Both the said reports have been duly proved on record by PW25 Anita Chhari. PW25 has deposed that 18 parcels were deposited in their office on 11.01.2012 vide letter dated 05.01.2012 and she had examined said parcels and prepared her report Ex. PW23/A and Ex. PW23/B bearing her signature at point A. 48.1 Though the report of biology division shows that the blood detected on blood in gauze of the deceased and alleged knife was of B group but, there is no further classification as to whether the blood detected on the knife and the blood in gauze of the deceased was B+ (positive) or B- (negative). In such a situation, when on both FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.122/137 the parcels human blood of group B was found, there might a possibility that upon further classification, if had been done, the same might have resulted into different blood grouping i.e. on one parcel blood group of B+ (positive) might have been present whereas, on the other, it might have been negative.
48.2 In view of lack of furher classification in the report, the prosecution has failed to conclusively prove that the blood found on the knife was of the deceased.
Circumstance (xi) :-After alleged incident, accused absconded from the house and was arrested only on 03.11.2011 i.e. after six days of alleged incident.
49. By way of above circumstances, prosecution is trying to prove the guilty mind of accujsed with the aid of Section 8 of Indian Evidence Act. As per prosecution case, the deceased was living with her husband and two minor children in a rented house at Rangpuri Pahari, Gulabo Camp and after the incident, the accused absconded from the house because in the morning when the crime was detected by the neighbour and sister of deceased, only the two children of the deceased were found present in the room while the husband of the deceased i.e. accused was not present there and despite efforts of the police, he could not be apprehended for three days and it is only on 03.11.2011, the police team apprehended him from Bus Stand, Sultanpur. As per arrest memo of the accused, he was arrested vide Ex. PW8/A on 03.11.2011 at 5:00 pm in the PS Vasant Kunj, South. The arrest memo bears the signature of ASI Ashwani Kumar and HC FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.123/137 Rajesh Kumar as attesting witnesses and the same was prepared by IO Inspector Iswar Singh.
49.1 As already noted during discussion of previous circumstances, deceased's sister Babli (PW1) and her neighbour Rajjo (PW19) in their depositions before the court, clearly deposed that in the morning, when the deceased was found lying murdered in her room, only her two children were present in the room and deceased's husband i.e. accused was found absconding. PW8 HC Rajesh Kumar is one of the member of police team who apprehended the accused. As per his examination in chief, on 03.11.2011, when he alongwith ASI Ashwani Kumar was present at Mangol Puri, Raina Basena, ASI Ashwani Kumar received a telephonic call from one Mahavir who claimed himself to be Jija of Sanjay, from Sultanpuri and he informed that accused Sanjay is under his apprehension at Sultanpuri, Bus stand. On said information, PW8 alongwith ASI Ashwani Kumar and two more constables reached Sultanpur where accused was handed over by Mahavir to ASI Ashwani Kumar and thereafter, PW8 alongwith ASI Ashwani Kumar and two constables and the accused came back to PS where the accused was handed over to the SHO.
49.2 In his cross-examination, PW8 further deposed that on 03.11.2011, at 6:00 am, four police officials had left the PS in search of accused Sanjay on their private motorcycles. As per his version, the distance between the place of apprehension of accused and PS Vasant Kunj was about 15 km and they had reached Sultanpuri at 7:30 am and returned back to PS at about 10:00 am. As per his FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.124/137 version, accused Sanjay was brought by him with one constable to PS in a three wheeler but he did not know on whose motorcycle Mahavir had come to PS Vasant Kunj or whether any document was prepared by the police to the effect that accused was produced before police by Mahavir. He denied the suggestion that accused was picked up from his house at Kishangarh on 29.10.2011 or from 29.11.2011 till 03.11.2011, accused was in custody of police. Here, it is pertinent to mention that in statement u/s 313 Cr.P.C., accused however took a plea that he himself surrendered to police in Sultanpuri police station.
49.3 As per deposition of ASI Ashwani Kumar examined as PW21, on 03.11.2011, at about 12:30 pm or 1:00 pm, he had received the information from the brother of the accused that accused was with him. As per said information, they reached bus stand of Sultanpuri where accused Sanjay was found standing with his brother Mahavir on the bus stop. Further, in his cross examination, he deposed that he had apprehended the accused on 03.11.2011, at about 2:00 pm and he made departure entry in the Rojnamcha register but, did not make any arrival entry after he reached back police station Vasant Kunj after apprehending the accused. He further deposed that he could not recall the DD entry number regarding departure entry nor he had placed on record any copy of said DD entry.
49.4 There is a starking difference between the time of apprehension given by aforementioned two witnesses. As per PW8, the accused was apprehended at about 7:30 am and he was brought FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.125/137 to the PS Vasant Kunj at about 10:00 am. PW21 ASI Ashwani Kumar, who is also the member of same team, however, says that accused was apprehended at about 2:00 pm from Sultanpuri and was brought to PS at 4:15 pm in the evening. Thus, there are two different versions with regard to time of arrest and apprehension of accused. As per PW8, accused was arrested in the PS in the morning hours at 10:00 am whereas, as per PW21, accused was arrested in the evening at about 5:00 pm. 49.5 As already noted in my finding given on circumstance no.7, the version of PW1 Babli and her brother Ram Kumar is also in contradiction to each other in as much as PW1 stated that they were informed about arrest of accused at 10:00 am after which they all i.e. PW1, her brother, her mother proceeded to police station but, as per PW13 Ram Kumar, the information regarding arrest of accused was received from the police at 4:00 pm, on 03.11.2011. The version of PW13 Ram Kumar suffers from some inherent contradictions also because, in his examination in chief, he nowhere talked about the presence of his sister or mother at the time of arrest of accused or at the time of recording of disclosure statement of accused but, his cross examination suggests that at the time of arrest, even his other family members were also present in the PS. 49.6 Close scrutiny of the charge sheet has revealed some more discrepancies regarding date on certain memos prepared by IO, after alleged arrrest of accused on 03.11.2011 as there appears to be some overwriting on the date of disclosure statement, pointing out FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.126/137 memo of the place of recovery, site plan of the place of recovery which are available on record as Ex. PW13/C, B and D respectively. On said memos, the date of 04.11.2011 appears to have been changed to 03.11.2011 by overwriting. Same discrepancy of date appears even on register no.19 wherein, against the deposit of recovered weapons shown at serial no.623/11, 626/11 & 628/11 (MAD numbers), there is similar overwriting on the date of deposit of recovered weapons.
49.7 It is also pertinent to mention that as per PW8 HC Rajesh and PW21 Ashwani Kumar, who are the witnesses to the apprehension of accused from Sultanpuri, one Mahavir who claimed himself to be brother/brother in law of accused Sanjay had made a phone call to PW21 Ashwani Kumar and informed that accused Sanjay was with him. Whereas, perusal of statements u/s 161 Cr.P.C. of both said witnesses nowhere disclose that any such information was given by any relative of the accused. As per said statements, after checking Rain Basera at Mangolpuri, the police team including PW8 and PW21 went to one Mahavir, the Jija of accused Sanjay @ Pappu, at Sultanpuri where Sanjay was handed over by Mahavir to ASI Ashwani Kumar.
49.8 It is also interesting to note that as per statement u/s 161 Cr.P.C. of ASI Ashwani Kumar, on 03.11.2011, the police team led by him, left the PS in the morning at 8:15 am, for search of accused. First they searched in Rangpuri Pahari, Naala Camp, thereafter, in Mangolpuri and after Mangolpuri, they went to Sultanpuri. From said FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.127/137 statement, it appears that accused was apprehended on random raid conducted by police at different places and not on the information of any relative of accused.
49.9 Considering the above noted discrepancies and infirmities in the record, the version of the police witnesses regarding arrest of the accused on 03.11.2011, cannot be believed especially when neither at the time of apprehension of accused nor at the time of his arrest, the police made any effort to join any independent witness. The arrest memo of the accused does not mention name of any independent witness nor the version of IO reflects any such effort being made by him to join any independent witness at the time of arrest of the accused. There is no explanation rendered by the IO with regard to said overwriting on the date on the disclosure statement, pointing out memo and site plan of the place of recovery as well as on the entries in register no.19 regarding deposit of recovered weapons of offence. All said memos were allegedly prepared by the IO on the same very date of arrest of accused.
49.10 The prosecution has also failed to place any departure or arrival entry of the police team who allegedly apprehended the accused on 03.11.2011 from the area of Sultanpuri. As per the IO, no such entries were made in the PS whereas, as per ASI Ashwani Kumar/PW21, he had made only departure entry while leaving the PS in search of accused, though no such entry has been actually placed on record.
Having regard to aforementioned discrepancies on record, FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.128/137 above circumstance has not been conclusively proved on record,
50. Now what the court is required to consider is whether on the basis of the proved circumstances a conclusion of guilt can be drawn against the accused. As is evident from the above discussion, out of total 11 circumstances, prosecution has been able to conclusively prove only five following circumstances on record.
i) Homicidal death of death
ii) Deceased was found dead in her rented room where she was residing with her husband i.e. accused Sanjay Pappu and two children.
v) The upper portion of the dead body was naked and her blood stained shirt under shirt, bra and chunni were found lying near the dead body.
vi) Few days before her death, deceased confided with her sister that her husband used to force her for sex despite her having recently undergone sterilization operation and he used to beat her whenever she refused for sex.
ix) Subsequent opinion of the doctor regarding possibility of injuries shown in PM report being caused with kassi/knife, recovered during investigation.
51. At the outset I may mention that there is no eye witness to the incident and the case of prosecution is based on circumstantial evidence only. Before we analyze and appreciate the conclusions which can be drawn from the circumstances establish from record. I think it apposite to refer to certain authorities pertaining to FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.129/137 delineation of cases that hinge on circumstantial evidence.
52. In Balwinder Singh Vs. State of Punjab AIR 1996 SC 607, it has been laid down that circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond reasonable doubt and the established circumstances should be consistent only with the hypothesis of guilt of accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the 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.
53. In Harish Chandra Ladaku Thange Vs. Stae of Maharasthra AIR 2007 SC 2957, while dealing with the validity of inferences to be drawn from circumstances evidence, it has been emphasized that where the case rests squarely on circumstantial evidence, 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 and further the circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principle fact sought to be inferred from those circumstances.
FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.130/13754. In State of UP Vs. Ashok Kumar Srivastava AIR 1992 SC 840, emphasis has been laid that it is the duty of the court to take care while evaluating circumstantial evidence. If the evidence adduce by the prosecution is capable to infer two inferences, one in favour of accused must be accepted. That apart, the circumstances relied upon must be established and the cumulative effect of the established facts must lead to singular hypothesis that the accused is guilty.
55. In Ram Singh Vs. Sonia & others, AIR 2007, SC 1218, it was held as under:-
In a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot be in any manner, establish the guilt of accused beyond all reasonable doubts.
56. In Ujagar Singh vs. State of Punjab (2007) 13 SCC 90, after referring to aforementioned principles pertaining to evaluation of circumstantial evidence, it was further held by hon'ble Apex court that,"it must nonetheless be emphasized that whether a FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.131/137 chain is complete or not would depend on facts of each case emanating from evidence and no universal yardstick should ever be attempted.
57. In the instant case though it has been established by the prosecution conclusively that the death of the deceased was a homicidal death but the crucial question for consideration is whether accused is responsible for committing such brutal and ghasty crime.
58. From the above detailed discussion regarding chain of circumstantial evidence, it is clear that many material links have remained unestablished. There are few more aspects on record which are not going in conformity with prosecution story. Firstly, as per prosecution case, dead body of deceased was found lying on the folding bed just in front of the door of the room and the head of the dead body was facing the door. Adjoining to the folding bed, there was one wooden fatta (Takhat) put on the bricks and when the police reached the spot, there was lot of blood lying on the mattress on said wooden fatta. If the deceased was murdered while she was lying on the folding bed, there was no reason for the presence of so much blood on the mattress lying on the takht. As per the prosecution case, the neck of the deceased was slit while she was sleeping on Takhat and after she died on account of said brutal attack, her dead body was shifted by the accused to the folding bed as he later had sex with the dead body of deceased. However, this theory is not at all convincing for the reason that in the same very room, the children of the deceased were also present on the fateful night. Assuming for the FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.132/137 sake of argument that they were sleeping on takhat with their mother i.e. the deceased and after killing the deceased, the dead body was shifted to the folding bed by the accused, even in that event, how it was possible for the accused to hit the deceased on her neck with a fawra like object which has a wooden handle of 69 cms long especially when the deceased was lying on the bed with her two children and in case, the children were sleeping on the folding bed separately then, what was the reason for shifting the dead body from Takhat to folding bed. From the photographs of the dead body lying on record, it appears that the deceased was attacked on her neck with some broad sharp object while she was lying straight with her face upward. Whereas, had she been attacked while she was on takhat, such attack on the neck of the deceased was not possible because on the one end of takhat, there was a wall, while the other end was touching the folding bed hence, there was no space for anyone to stand on either side of takhat to attack on the neck of a person lying straight. From the position of the wound on the neck, it appears that the attack was made from behind the head of deceased.
59. The second aspect, which has also remained unexplained is regarding injuries no. 2 to 6 on the dead body. The said injuries as per subsequent opinion Ex. PW9/D of Dr. Shashank, were possible with a kitchen knife allegedly recovered at the instance of accused. As per PW9, injury no.1 was sufficient to cause death in ordinary course of nature. After such a deadly blow with an object like fawra/spade on neck which cut the neck and almost separated the FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.133/137 head from the torso, what was the need for the killer to give as many as 5 more different injuries on different portions of cheek, chin and neck. There was no possibility of deceased being still alive after such fatal blow on her neck which caused injury no.1, then why the deceased was repeatedly given injuries with knife.
60. Assuming that the fatal blow with fawra was given after causing injuries with knife, then how there was no resistance or no alarm/noise raised by the deceased especially when she was not under any intoxication as is evident from viscera report of FSL dated 18.04.2012 Ex. PW23/C. How the kids present in the same very room and the neighbours living in adjoining room remained unaware of the incident, are certain questions which remained unanswered.
61. Except proving the fact that at the relevant time, deceased was living with the accused and her children in the rented room, where she was found dead, there is no conclusive evidence in the form of 'last scene' to connect the accused with the alleged offence. As per evidence on record, room of deceased was not surrounded with any boundary walls and was easily accessible by anyone from the surrounding area. Hence, possibility of any other person getting access in the room on the fateful night cannot be ruled out. Even as per PW1, she had last seen the accused outside the room at about 9:00 pm, whereas the probable time of incident was midnight hours of intervening night of 28/29.10.2011 i.e. after a gap of 3-4 hours.
FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.134/13762. As already noted above while discussing circumstance no.3, there is a deliberate attempt on the part of IO to withheld a very material piece of evidence i.e. the version of the children of the deceased who were present in the room as the same could have corroborated the testimony of PW1 regarding alleged presence of accused with the deceased on the fateful night.
63. Circumstances no. (v) & (vi), which have been proved on record, at the most can prove the motive of offence. But in absence of any other clinching evidence, motive solely cannot prove the guilt. Even otherwise, except the fact that upper portion of body was naked and torn clothes of deceased were lying near the dead body, there is no forensic evidence of any sexual assault on the deceased before or after her murder.
64. In a criminal trial, the onus is always upon the prosecution to prove its case beyond reasonable doubt. Though, the absence of explanation from the accused to a conclusively proved circumstance may prove to be an additional link in the chain of circumstances but, failure of accused to explain will not itself be sufficient to prove the circumstance upon which no cogent evidence has been led by the prosecution. In this regard, I also draw support from the judgment in Sujeet Biswas vs. State of Aasam 2013 (5) LRC 133 (SC), where it was held by Hon'ble Apex court that an inference can be drawn against the accused only and only if the incriminating material stands fully established, and the accused is not able to furnish any explanation for the same. However, the accused has the right to FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.135/137 remain silent as he cannot be forced to become a witness against himself.
65. It is one of the fundamental principles of criminal jurispurdence that an accused is presumed to be innocent till he is proved guilty. It is equally well settled that suspicion however, strong can never take the place of proof. There is indeed a long distance between the accused "may have committed the offence" and "must have committed the offence" which must be transversed by the prosecution by adducing reliable and cogent evidence. Presumption of innocence has been recognized as a human right which cannot be washed away. Reliance placed on Kailash Guar & Ors. State of Aasam (2012) 2 SCC 34.
66. Similarly, in Shrad Birdichand Sarda (supra), Hon'ble Apex Court has observed that graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt of the accused is sought to be established by circumstantial evidence.
67. Having regard to the aforementioned discussion, I feel no hesitation in holding that the prosecution has miserably failed to prove the charge against the accused as there is no clinching FIR No.294/11 St. Vs. Sanjay @ Pappu Page No.136/137 evidence against the accused to connect him with the alleged offence. Many of the important links of circumstantial chain of evidence remained unestablished on record. In view thereof, accused is acquitted from the charge of alleged offence of murder.
68. Before parting with the discussion, I am constrained to note that there are serious lapses on the part of IO/Inspector Ishwar Singh who made a deliberate attempt to withheld a very material piece of evidence, which could have helped the prosecution to prove the important link of 'last scene' and the said lapses on his part has ultimately led to an adverse inference against the prosecution. For said lapses on the part of the IO, I am inclined to recommend an inquiry against him. Accordingly, DCP concerned is directed to conduct an inquiry against the IO especially in view of my discussion on the circumstance no.(iii), in para no. in Para no.42.13 to 42.15 of this judgment and to take appropriate action against him, with an intimation to this court.
69. Copy of this judgment be sent to concerned DCP for compliance.
70. File be consigned to record room.
Announced in open Court on 12.12.2018 (Sunena Sharma) Additional Sessions Judge-03 (South) Saket Courts, New Delhi John Digitally signed by John Doe FIR No.294/11 Doe Date: 2018.12.14 16:34:29 +0530 St. Vs. Sanjay @ Pappu Page No.137/137