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Delhi District Court

State vs 1. Aruna W/O Late Nathuni Paswan R/O H. ... on 3 February, 2023

               IN THE COURT OF SH. DHIRENDRA RANA
          ADDL. SESSIONS JUDGE(FTC)-02, SOUTH EAST DISTRICT
                       SAKET COURTS : DELHI

In the matter of:-
(Sessions Case No. 345/2017)

                  FIR No.                             68/2017
                  Police Station                      Defence Colony
                  Charge sheet                    filed 302/120-B/201 IPC
                  Under Section
                  Charge framed Under Against accused Aruna u/s
                  Section             302/120-B/ IPC
                                      Against accused Sanjeev
                                      Paswan u/s 302/120-B/174-
                                      A IPC

         State V/s           1.        Aruna w/o Late Nathuni Paswan r/o H. NO. B-35,
                                       Ayurvigyan Nagar, Delhi
                             2.        Sanjeev Paswan s/o Sh. Nanki Paswan r/o Village
                                       Titra Bishanpur, PS Sakra, District Muzafarpur,
                                       Bihar.
                                                                     ......Accused Persons

                     Date of institution                     30.08.2017
                     Arguments concluded on                  11.01.2023
                     Judgment Pronounced on                  03.02.2023
                     Decision                                Conviction


                                                  JUDGMENT

BRIEF FACTS

1. Events which set the prosecution machinery into motion is that on SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 1 of 64 State Vs. Aruna & Anr.

07.04.2017 an intimation was received at PS Defence Colony from AIIMS Hospital through Duty Ct. Bhagwan Shah regarding admission of one person namely Nathuni by his son Deepak vide MLC No. 2983/17. The information was reduced into DD No. 20A and same was handed over to SI Krishan Kumar. Upon receipt of said DD entry, SI Krishan Kumar reached at AIIMS Hospital and obtained the MLC of Nathuni, who was declared dead by the doctor. Thereafter, SI Krishan Kumar went to AIIMS Mortuary where he met Deepak (son of deceased) and Kuldeep and recorded their statements. SI Krishan Kumar prepared the inquest papers and got conducted the postmortem. After postmortem, dead body was handed over to Deepak. Viscera was also preserved by the doctor and same was handed over to IO, who deposited the same in malkhana. On 12.05.2017, IO SI Krishan Kumar obtained the postmortem report of deceased wherein doctor opined the cause of death as Asphyxia due to strangulation. Thereafter, IO SI Krishan Kumar prepared the tehrir and got registered the FIR under section 302 IPC. After registration of FIR, further investigation was marked to Inspector Satish Sharma. IInd IO only prepared the site plan and thereafter investigation was taken up by IIIrd IO Inspector Sehdev Tomar. During investigation, IO recorded the statement of Deepak, who casted allegations against his stepmother Aruna and raised suspicion that deceased was murdered by her. IO collected the CDR of the mobile phone of accused Aruna and it revealed that she was in constant touch with co-accused Sanjeev Paswan on the date of incident as well as prior to the incident. IO arrested accused Aruna from her house and got recovered the ligature material i.e., gamcha used by her to strangulate the deceased. It further transpired that Aruna and Sanjeev were having an extra marital affair. They hatched a criminal conspiracy to commit murder of deceased and pursuant to that accused Aruna administered an intoxicating substance to the deceased in SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 2 of 64 State Vs. Aruna & Anr.

his meal and strangulated him with a scarf (gamcha) on the intervening night of 06-07.04.2017. He also tried to arrest co-accused Sanjeev but he was declared proclaimed offender and he subsequently surrendered before the court. IO recorded the statement of witnesses, sent the exhibits to FSL and collected other evidences and after completion of investigation, charge sheet for the offences u/s 302/120-B/201 IPC against accused Aruna was filed in the court. On 11.12.2017, IO Inspector Sehdev Tomar filed the supplementary charge sheet qua FSL result and accused Sanjeev Paswan under section 302/120-B/174-A IPC.

CHARGE

2. On committal of the case to the Court of Sessions, vide order dated 12.02.2018 charge u/s 302/120-B/201 IPC against accused Aruna and u/s 120-B/302 IPC against accused Sanjeev Paswan were found to be made out. The formal separate charge was framed on the said date to which they pleaded not guilty and claimed trial.

Additional charge under section 174-A IPC was also framed against accused Sanjeev Paswan on 28.11.2022 to which he pleaded not guilty and claimed trial.

PROSECUTION EVIDENCE

3. Thereafter, prosecution in support of its case have examined 19 witnesses in all.

FORMAL WITNESSES

4. PW1 is HC Balbir, who deposed that on 12.05.2017, he was SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 3 of 64 State Vs. Aruna & Anr.

posted as duty officer from 04:00 PM to 12 midnight. He further deposed that at about 09:10 PM, SI Krishan Kumar produced one rukka and on the basis of same, he registered the FIR which is Ex. PW1/A. He also made endorsement on rukka which is Ex. PW1/B. He also lodged DD No. 38A at about 09:11 PM dated 12.05.2017 which is Ex. PW1/C and DD No. 39A at about 09:40 PM which is Ex. PW1/D.

5. PW2 is Inspector Mukesh Kumar Jain, Draughtman. He deposed that on 12.07.2017, he was posted as Draughtman in Southern Range, PS Hauz Khas and upon request of Inspector Sehdev Singh Tomar, he alongwith IO and few other police officials visited the spot i.e., Second Floor of House No. B-35, Ayur Vigyan Nagar, New Delhi. He inspected the spot, took the measurements and prepared the rough notes. He prepared the scaled site plan on the basis of rough notes and measurements. He exhibited the scaled site plan as Ex. PW2/A.

6. PW9 is Israr Babu, Alternate Nodal Officer, Vodafone Idea Ltd., who deposed that during the investigation, he provided the record from 01.03.2017 to 18.05.2017 of mobile phone No. 8860054933 and 8051860111 to IO. He exhibited the EKYC/CAF record of mobile No. 8860054933 issued in the name of Aruna as Ex. PW9/A and CDR of said mobile phone as Ex. PW9/B. He also exhibited EKYC CAF record of mobile No. 8051860111 (number of Bihar circle) issued in the name of Sanjeev Paswan as Ex. PW9/C, photocopy of election card annexed as proof of identity of customer as Ex. PW9/D, CDR of said mobile phone as Ex. PW9/E. He also exhibited certificate under section 65-B of Indian Evidence Act as Ex. PW9/F and attested copy of cell ID chart of Vodafone of Delhi and NCR as Ex. PW9/G. SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 4 of 64 State Vs. Aruna & Anr.

7. PW12 is HC Bali Ram, who deposed that on 07.04.2017, he was posted as MHC(M) in PS Defence Colony and SI Krishan Kumar, deposited viscera and two exhibits in sealed condition and two sample seals vide seizure memo vide DD No. 20A dated 07.04.2017 and entry at serial No. 1054 in register No. 19 was made by him which is Ex. PW12/A (OSR).

He further deposed that on 09.05.2017, SI Krishan Kumar deposited clothes of deceased in sealed condition alongwith sample seal vide DD No. 20A dated 09.05.2017 and an entry at serial No. 1113 in register No. 19 was made which is Ex. PW12/B (OSR).

He further deposed that Inspector Sehdev Singh deposited sealed pullanda of gamcha vide seizure memo and an entry at serial No. 1120 was made in register No. 19 which is Ex. PW12/C (OSR).

He further deposed that on 05.06.2017, case property deposited at serial No. 1054 was sent to RFSL vide RC No. 31/21/17 which is Ex. PW12/D (OSR) through Ct. Satpal and acknowledgment receipt produced by Ct. Satpal after return from RFSL is Ex. PW12/E (OSR).

He further deposed that on 03.07.2017, case property deposited at serial No. 1120 was taken to Department of Forensic Medicine, AIIMS vide RC No. 48/21/17 which is Ex. PW12/F (OSR) by Inspector Sehdev Singh Tomar and acknowledgment receipt produced by Inspector Sehdev Singh Tomar after depositing the case property is Ex. PW12/G (OSR).

He further deposed that on 04.08.2017, Inspector Sehdev Singh Tomar deposited one sealed pullanda containing gamcha alongwith sample seal of Department of Forensic Medicines, AIIMS after obtaining subsequent opinion.

8. PW13 is W/ASI Ratan Prabha, who deposed that on SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 5 of 64 State Vs. Aruna & Anr.

07.04.2017, she was working as Duty Officer/HC from 08:00 AM to 04:00 PM and at about 03:00 PM, she received a call from Duty Ct. Bhagwan Shah, AIIMS Hospital regarding admission of deceased Nathuni vide MLC No. 2983/17 by Deepak in the hospital. She recorded the information in roznamcha vide DD No. 20A which is Ex. PW13/A.

9. PW15 is Dr. T. H. Elias, JR, AIIMS Hospital, who deposed that on 07.04.2017, one patient namely Nathuni was brought before him for medical examination. He conducted the medical examination and found that pulse rate and BP rate of patient was zero and there was no external injury. He exhibited his report as Ex. PW15/A.

10. PW17 is Ct. Satpal, who collected the sealed pullandas sealed with the seal of Deptt. Of Forensic Medicines, AIIMS, New Delhi with sample seal from MHC(M) on the directions of IO vide RC No. 31/21/17 and deposited the same with RFSL, Chankya Puri. He handed over the copy of RC and acknowledgment receipt to the MHC(M).

11. PW19 is ASI Bijendra Singh. He deposed that on 12.07.2017, he received process under section 82 CrPC against accused Sanjeev Paswan @ Nanki Bhagat s/o Sh. Nanki Paswan r/o Village Titra Bishan Pur PS Sakra, District Muzzafar Pur, Bihar. He went to PS Sakra Janpat and gave the information to SHO PS Sakra which is Ex. PW19/A. He further deposed that he alongwith police officials of PS Sakra, he visited the house of accused, however, he came to know that accused was not residing at the given address. He affixed the copy of process at the address of accused as well as notice board of court. He also read the process publically in the vicinity of premises/area.

SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 6 of 64 State Vs. Aruna & Anr.

He obtained the signature of local police official on his report which is Ex. PW19/B and prepared his detailed report on process which is Ex. PW19/C. In his cross examination done on behalf of accused Sanjeev Paswan, he stated that he is not aware whether any notice was served upon accused or not. He also could not tell whether he had recorded statement of any respectable citizen when he had gone to execute NBW and process under section 82 CrPC.

EXPERT EVIDENCE

12. PW3 is Dr. Adarsh Kumar, Professor Forensic Medicines, AIIMS, New Delhi, who deposed that he alongwith Dr. Rajesh Kumar, SR and Dr. Bandhul Hans, JR conducted the postmortem on the body of deceased Nathuni Paswan. He further deposed that as per postmortem report "bilateral diffuse subconjunctival hemorrhage is present in both eyes. Bluish discoloration of oral mucosa is present. A contusion of size 2x0.6 cm is present over the inner surface of lower lip. On neck a reddish coloured ligature mark of length 17 cm and uniform width of 2 cm is present horizontally in upper half of the neck at the level of hyoid bone. At anterior midline it is 5 cm below the mentum and 7 cm above the suprasternal notch. The ligature mark extends 8 cm towards right and 9 cm towards left from anterior midline of the neck. Right end of the ligature mark is 7.5 cm below the right mastiod prominence and the left end of the ligature mark is 6 cm below the left mastiod prominence. On dissection of neck, hematoma is present bilaterally in subcutaneous tissues, neck muscles, thyroid gland, submandibular glands, carotid artery, posterior pharyngeal wall and base of tongue. Fracture of the right greater cornu of hyoid bone and bilateral greater horn of thyroid cartilage is present associated with hematoma. He further SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 7 of 64 State Vs. Aruna & Anr.

deposed that as per his opinion the cause of death was asphyxia due to strangulation. He exhibited PMR report as Ex. PW3/A. He further deposed that on 03.07.2017, one sealed pullanda containing a white colour cloth (gamcha) with green and orange strip border on both side having one running knot with single loop of circumference 47 cm and two free ends emerging from knot of length 44 cm and 7 cm and width 70 cm, with the seal of ST was produced in this case for subsequent opinion on the above PM report. An opinion was sought that whether accused Aruna used it to make a loop and strangulate her husband and murdered him. After perusal of postmortem report, inquest papers and examination of said exhibits, they opined that injury over neck as mentioned in the postmortem report could be possible by alleged ligature material. He exhibited subsequent opinion as Ex. PW3/B. In his cross examination done on behalf of accused Sanjeev Paswan, he admitted that there was nothing on the gamcha to correlate it with ligature mark. The time of death was about ¾ th of the day before the commencement of the autopsy. He stated that no other injury except shown in postmortem report was observed on the body of the deceased. The injuries are possible with other chunni of the same kind but not with the rope. He also stated that no blue colour was found on the thumb but nails were bluish.

13. PW14 is Dr. Rajesh Kumar, who deposed that he alongwith Dr. Adarsh Kumar, Professor and Dr. Bandhul Hans, JR conducted the postmortem on the body of deceased. He deposed on the lines of PW3 Dr. Adarsh Kumar and opinion of the board mentioned in PM report and subsequent opinion on ligature material which has already been taken on record in the testimony of PW3 Dr. Adarsh Kumar.

In his cross examination he denied the suggestion that there was no injury on the body of deceased and the time of death reported as ¾ th of a SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 8 of 64 State Vs. Aruna & Anr.

day means 18-24 hours which is mentioned in the PMR. He admitted the suggestion that a single person can cause all the injuries shown in the PMR to the deceased.

14. PW16 is Dr. Kanak Lata Verma, Assistant Director (Chemistry), RFSL, Chankaya Puri. She examined the exhibits i.e., viscera and nail clippings of the deceased and prepared a report which is Ex. PW18/D. She deposed that upon examination no metallic poison, methyl and ethyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides were found in the exhibits.

In her cross examination she stated that drug/ metabolites may be detected, if present in exhibits at the time of examination. In the present case no such drug/metabolites could be detected.

MATERIAL/EYE WITNESSES

15. PW4 is Madhuri, daughter of deceased, who deposed that deceased was her father and when she was of 4-5 years old, her mother Sushila died due to illness. She further deposed that as there was nobody to look after her and her brother Deepak, who was 6 years old at that time, her father solemnized second marriage with accused Aruna. Her father had two more children namely Rajni and Kuldeep from accused Aruna. She further deposed that accused Aruna started harassing her and her brother and never cooked food for them due to which quarrel arose between her father and accused Aruna. She further deposed that accused Aruna used to pressurized her father to divorce her as she was having an affair with a person namely Sanjeev.

She further deposed that in the year 2016, accused Aruna went to her parental native village and there she met accused Sanjeev. When she SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 9 of 64 State Vs. Aruna & Anr.

returned back, she started receiving calls on her mobile phone from accused Sanjeev. She further deposed that once or twice, she as well as deceased also attended the call of accused Sanjeev on the mobile phone of accused Aruna on the occasions when accused Aruna was in kitchen or in washroom. She further deposed that there used to be regular dispute between deceased and accused Aruna for having relations with accused Sanjeev and accused Aruna used to pressurize deceased to divorce her as she wanted to live separately and she also told the deceased to give her share in property.

She further deposed that on 18.11.2016, accused Aruna went missing from the house and a missing complaint was lodged in PS Defence Colony in this regard by deceased and son of deceased Deepak. After 2-3 days, accused Aruna was brought back by her chacha Bhola Paswan and her brothers Santosh Paswan and Subodh Paswan and accused Aruna tendered her apology and assured that she would never repeat such mistake in future. However, after 2-3 days she again started misbehaving and started demanding divorce and partition of the property.

She further deposed that on 06.04.2017, accused Aruna received a phone call from accused Sanjeev, upon which a quarrel took place between accused Aruna and deceased. Accused Aruna threatened the deceased either to divorce her or she would kill him. On the same day at about 05:00 PM, accused Aruna left home without informing anybody. At about 06:30 PM, deceased returned back home from office and inquired about Aruna. After few minutes, accused Aruna returned back with one bag (thela) and went to kitchen directly in fit of anger. Deceased also followed her to kitchen. As deceased had brought the chicken, he started washing and cleaning it. Accused Aruna prepared the food. Since, accused Aruna and deceased were having an altercation, deceased went to his room and after preparing food, accused Aruna SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 10 of 64 State Vs. Aruna & Anr.

also went in the room of deceased. In the room, they again had altercation over the issue of Sanjeev and on the issue of leaving home by accused Aruna in evening. During the altercation, accused Aruna uttered the words "mera bus chale to men tumhe jahar khila kar maar doo" in presence of her both children, Pampu and Munchun. Thereafter, accused Aruna brought Chicken and rice for deceased and first of all served the food to deceased and thereafter, she served the food to others present in the room, however, the deceased found the taste of food to be bitter. Thereafter, deceased asked accused Aruna to give something else to eat as he was not able to eat the food served by her. Upon which accused Aruna took the food i.e., chicken and rice and threw the same in dustbin. After washing the plate, she served rice and daal in same plate to deceased. Deceased ate the food and informed Pampu, who was sitting by the side of deceased, that rice-daal and water were not bitter in taste. She further stated that she and her brother Deepak ate daal and rice and rest of the members ate chicken and rice, however, none of them found the taste of food to be bitter. Thereafter, all of them went to sleep in their respective beddings.

She further deposed that on 07.04.2017, she woke up on hearing the cries of Rajni as she was weeping. She rushed to the room of deceased and saw that accused Aruna and Rajni were sitting by the side of deceased and accused Aruna was cleaning the blood with a piece of cloth which was coming out from the nose of deceased. She further deposed that she found the body of deceased in stiff condition having some blackish colour/marks under his eyes and blood was oozing from his nose. She also noticed that stomach of deceased was swollen. She and her brother took the deceased to AIIMS Hospital in a three wheeler where doctor informed that their father had expired. She further deposed that they asked the reason for demise of deceased upon which doctor advised them to go for the postmortem. She and Deepak were willing for SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 11 of 64 State Vs. Aruna & Anr.

postmortem, however, accused Aruna refused for the same. Despite that postmortem was got conducted at the request of Deepak.

In her cross examination done on behalf of accused Aruna, she stated that they reached at AIIMS Hospital around 07:30-08:00 AM. Other relatives including accused Aruna reached after ½-1 hour. She further stated that deceased was not under any kind of treatment from AIIMS prior to his death and she denied the suggestion on this aspect. She denied the suggestion that no quarrel took place between Aruna and deceased on 06.04.2017. She denied the suggestion that deceased used to discuss about her marriage with co-accused Sanjeev. She stated that when she happened to receive the call of accused Sanjeev, he recognized her voice and did not talk to her. She stated that on 06.04.2017 she did not help her mother in preparing chicken. Dinner was ready by 08:30-09:00 PM on that day and her father had consumed alcohol on minimum side as he had taken only one drink. His father had dinner alongwith other family members inside his room whereas she and Deepak had dinner in drawing room before 10:00 PM. After 5-10 minutes, she went to her bed.

In her cross examination done on behalf of accused Sanjeev, she stated that they did not raise any suspicion on anybody regrading death of her father and doctor had asked if her father was suffering from any illness.

16. PW5 is Deepak, who is son of deceased. He deposed on the lines of PW4 Madhuri and casted allegations against accused Aruna. He identified the dead body of deceased and his dead body identification statement was recorded which is Ex. PW5/A and after postmortem, dead body was handed over to him vide receipt which is Ex. PW5/B. In his cross examination done on behalf of accused Arun he SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 12 of 64 State Vs. Aruna & Anr.

denied the suggestion that deceased was under treatment. He denied the fact that his statement which is Ex. PW5/DA was recorded by the police on 07.04.2017 and when he was confronted with the statement, he stated that he had not stated in the statement that he had no suspicion regarding death of his father. He admitted that his uncle Pritam Paswan and mama Rajeev Paswan were present when he signed the statement on 07.04.2017. He stated that they left the house at 07:15 AM and reached at AIIMS Hospital at about 07:50- 08:00 AM. Doctor had inquired from him whether the deceased was suffering from any illness or not. After half an hour, accused Aruna, Rajni and Kuldeep reached at the hospital. He admitted that deceased used to drink occasionally. He denied the suggestion that deceased was under tension on account of their upbringing and marriage of his sister. He also denied the suggestion that he used to demand money for luxurious life from his father. He stated that food was cooked by accused Aruna on that day. He admitted that there were nine persons present in the house on the date of incident. He did not hear any sound during night time from the room of his father. He stated that he slept in between 10:00-11:00 PM on that day and all other family members had also gone to their beds almost at the same time. He could not tell, who had opened the door but he woke up, the door was already opened. He denied the suggestion that he demanded Rs. 70,000/- from his father to purchase a motorcycle one month prior to his death. He admitted that one civil suit was filed against him. He denied all the suggestions put forth from accused Aruna.

In his cross-examination done on behalf of accused Sanjeev, he stated that he did not meet Sanjeev Paswan prior to death of his father and he had no suspicion on him. He further stated that his father had called his uncle (fufa) for treatment. He denied the suggestion specifically that both accused persons had no illicit relation.

SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 13 of 64 State Vs. Aruna & Anr.

17. PW6 is Munchun, nephew of deceased. He deposed on the lines of PW4 Madhuri and PW5 Deepak qua the quarrel took place between accused Aruna and deceased on 06.04.2017. He deposed about the entire episode of 06.04.2017 corroborating the version of PW4 and PW5. On 07.04.2017 at about 07:00 AM he heard Rajni crying from the room of the deceased. When he woke up he saw accused Aruna was kneading flour in the kitchen as it was situated in front of Balcony where he was sleeping. He saw that deceased was bleeding from his nostrils and his body was lying stiff. His stomach was swollen and there was blackness under his eyes. He alongwith PW4 and PW5 brought the deceased downstairs and took him to AIIMS Hospital where he was declared dead. He stated that he was perturbed as to what happened to the deceased all of a sudden as he was perfectly alright. He stated that doctor had asked PW Deepak for postmortem but family members were refused for the same. Accused Aruna refused 2-3 times for the postmortem, however, it was done at the request of Deepak. He stated that he had suspicion towards Aruna because on 06.04.2017, she had quarreled and threatened the deceased. She also thrown the left over chicken and rice in the dustbin as earlier she used to eat the left over food of deceased and also she did not accompany them to the hospital. Accused also did not agree for the postmortem of the deceased. He stated that on 06.04.2017 Aruna had threatened the deceased to kill him, if she was not given divorce by the deceased. He also deposed about the elopement episode of Aruna on 18.11.2016.

In his cross-examination done on behalf of accused Aruna, he stated that he met the deceased and his entire family for first time on 04.04.2017 when he came to Delhi. He stated that he used to talk with Madhuri regarding well being of the families and she never told him about the behaviour of accused Aruna. However, Deepak told him about her behaviour SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 14 of 64 State Vs. Aruna & Anr.

after the death of deceased. He stated that on 06.04.2017 they had dinner at about 09:00 PM in the same room with accused Aruna and deceased was talking normally to her in a cordial atmosphere. He denied the suggestion that he deposed against accused Aruna at the behest of his cousins.

WITNESSES OF INVESTIGATION

18. PW7 is SI Krishan Kumar, who deposed that on 07.04.2017 at about 03:00 PM, on receipt of DD No. 20A from Duty Officer, he alongwith Ct. Jai Kant reached at AIIMS Hospital where he obtained MLC No. 2983/17 of Nathuni Paswan, who was declared dead by the doctor. He further deposed that he came to know that body of deceased had been shifted to mortuary of AIIMS Hospital. He went to mortuary where he met Deepak, son of deceased and recorded his statement. He further deposed that thereafter, he returned to the police station. He recorded the statement of Kuldeep which is Ex. PW7/A and Chandeshwar which is Ex. PW7/B and other relatives of the deceased in police station. He further deposed that in the evening he again went to AIIMS Hospital and moved an application which is Ex. PW7/C requesting for conducting the postmortem on the body of deceased. He also filled form 25.35 which is Ex. PW7/D. He got the postmortem of the deceased conducted and after postmortem, dead body was handed over to relatives of the deceased. He further deposed that doctor had handed over three sealed exhibits alongwith two sample seals to him after the postmortem which is seized vide memo Ex. PW7/E. He further deposed that on 09.05.2017, he went to the hospital where doctor handed over another sealed pullanda containing clothes of deceased alongwith sample seal which was seized vide seizure memo Ex. PW7/F. On 11.05.2017, he collected the PM report of deceased. On SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 15 of 64 State Vs. Aruna & Anr.

12.05.2017, he made endorsement on DD Mark A which is Ex. PW7/G and handed over the same to duty officer for registration of FIR. After registration of FIR, investigation was entrusted to Inspector Satish Kumar.

19. PW8 is Inspector Satish Sharma, who deposed that on 12.05.2017, investigation of the present case was handed over to him after registration of FIR. He obtained the copy of FIR and rukka from duty officer and other documents from SI Krishan Kumar. He deposed that during investigation, he went to the spot of incident i.e., H. NO. B-35, Second Floor, A. V. Nagar, New Delhi where he made inquiries from the residents of nearby houses and of residents of H. No. B-35. He prepared the site plan which is Ex. PW8/A at the instance of Deepak, son of deceased. Thereafter, he was transferred.

20. PW10 is Ct. Deepak, who deposed that on 18.05.2017, he alongwith IO Inspector Sehdev Singh Tomar and L/Ct. Varsha joined the investigation of this case and went to spot of incident i.e., H. No. B-35, Ayurvigyan Nagar, New Delhi where they met accused Aruna. She was interrogated and during interrogation, she admitted her guilt in the commission of offence. She disclosed that she committed the murder of her husband by strangulating him with a gamcha. She was arrested, her personal search was done conducted by L/Ct. Varsha and her disclosure statement was recorded. He further deposed that accused Aruna led them to the room where incident took place and got recovered one white colour gamcha having corners of green and orange colour which was used by her in the commission of offence. He further deposed that there was a knot on the gamcha and the said gamcha was kept in pullanda and sealed with the seal of ST. Seal after use was handed over to him SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 16 of 64 State Vs. Aruna & Anr.

vide memo Ex. PW10/A. He further deposed that on 14.09.2017, he again joined the investigation of the present case with IO Inspector Sahdev Singh Tomar and reached at Saket Court where accused Sanjeev Paswan had surrendered. He further deposed that after permission, IO interrogated him and recorded his disclosure statement which is Ex. PW10/X, arrested the accused vide arrest memo which is Ex. PW10/Y and conducted his personal search vide personal search memo which is Ex. PW10/Z. He further deposed that on 15.09.2017, IO again interrogated accused and recorded his disclosure statement which is Ex. PW10/Z1. He exhibited the case property i.e., gamcha as Ex. P1. He correctly identified the accused persons during his deposition.

In his cross-examination he stated that accused Sanjeev was taken to a Chemist during police remand and the chemist stated that he does not sell any medicine without prescription of the doctor. He admitted that during arrest of accused Aruna, no photography of the spot was done and IO did not measure the recovered gamcha. He could not tell whether he had signed on the seizure memo of the gamcha or not.

21. PW11 is L/Ct. Varsha, who deposed that on 18.05.2017, she alongwith IO Inspector Sehdev Singh Tomar and Ct. Deepak joined the investigation of this case. She deposed on the lines of PW10 Ct. Deepak qua the arrest of accused Aruna and recovery of gamcha at her instance. She exhibited arrest memo of accused Aruna as Ex. PW11/A, her personal search memo as Ex. PW11/B, her disclosure statement as Ex. PW11/C and seizure memo of recovered case property i.e., gamcha as Ex. PW11/D. She correctly identified the accused Aruna and case property i.e., gamcha during her deposition.

SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 17 of 64 State Vs. Aruna & Anr.

22. PW18 is Inspector Sehdev Tomar, who deposed that on 17.05.2017 the investigation of the present case was assigned to him and on 18.05.2017, he alongwith other staff members visited B-35, Ayurvigyan Nagar, New Delhi where they met accused Aruna, who during interrogation admitted her guilt of involvement in this case. She was arrested and she disclosed that she used a gamcha for strangulation of the deceased and hid the same in the box of the bed. He further deposed that accused got recovered the said gamcha from the box of the bed lying in her room and he seized the same. He deposed that the said gamcha was having tricolour strips on its border and same was found in the shape of net i.e., fanda. He prepared the site plan Ex. PW18/B of the place of recovery of gamcha and collected the CDR of both accused persons. He further deposed that 5 days PC remand of accused Aruna was obtained and in search of accused Sanjeev Paswan, on 18.05.2017, he alongwith Ct. Deepak, Ct. Varsha and accused Aruna went to Village Titra Bishanpur, District Muzaffarpur, Bihar, however, co-accused was not found.

He further deposed that he sent a letter to Forensic Department, AIIMS which is Ex. PW18/A for obtaining opinion as to whether the strangulation could be done with that gamcha and the opinion in this regard was given by the doctor which is Ex. PW3/B. The scaled site plan was prepared by Inspector Mukesh Kumar Jain.

He further deposed that on 14.09.2017, accused Sanjeev Paswan surrendered before the court. He arrested accused Sanjeev Paswan, his personal search was conducted, his disclosure statement was recorded which is Ex. PW18/C and his two days police remand was obtained, however, nothing was recovered and he was sent to JC. He further deposed that accused Sanjeev Paswan was arrested as on the day of incident and intervening night of 06-07.04.2017, he was in constant touch with accused Aruna telephonically SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 18 of 64 State Vs. Aruna & Anr.

specifically from 11:30 PM to 01:30 AM. He further deposed that he obtained the FSL result dated 24.10.2017 which is Ex. PW18/D. He correctly identified the accused persons and case property during his deposition.

STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C

23. After closure of PE, separate statement of accused Aruna and Sanjeev Paswan were recorded u/s 313 Cr.P.C. on 04.11.2022, wherein both of them denied all the evidence put to them. Accused Aruna stated that she has been falsely implicated in this case. PW4 Madhuri, PW5 Deepak i.e., the children from the first wife and PW6 Manchun, nephew (bhanja) were interested to grab the property of deceased and the same was refused by the deceased as she wanted to give equal share to her children as well. They were looking for an opportunity to falsely implicate her. Hence, they used to fabricate stories against her and on 07.04.2017, they got an opportunity to strangulate her deceased husband. Deepak manipulated MLC report of the deceased as well as the pujari at cremation ground for overlooking ligature mark on the neck of the deceased which was mentioned in the post mortem report. It is impossible that the doctors and the pujari at cremation ground could have overlooked those ligature marks on the neck of the deceased without the manipulation of PW4, PW5 and PW6. She stated that on the intervening night of 06-07.04.2017 she was talking to the co-accused from 11:24 PM till 01:32 AM for prospective bridegroom of PW4 Madhuri. The network was faulty and they were not able to hear each other. Co-accused is relative of her husband and was staying at Dharampur, Bihar near house of her aunt. She stated that deceased was bleeding at 07:30 AM when he was taken to hospital by PW4 and PW5 and they had strangulated him during 07:30 AM to SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 19 of 64 State Vs. Aruna & Anr.

11:30 AM. She denied that gamcha was recovered at her instance. She stated that she got married with deceased in the year 2000 and she was happily married. She stated that in the year 2016 she had gone to the village of her in- law as her father-in-law was seriously ill but she could not inform her husband and left after informing Deepak. She used to conversant with co-accused on phone regarding prospective bridegroom of Madhuri. She denied that any quarrel took place between her and deceased on 06.04.2017 or that she had gone out of the house on 06.04.2017. She admitted that she cooked chicken for all nine members of the family. Deepak and Madhuri did not have chicken as they were fasting on Thursday. She admitted that she slept with the deceased, Kuldeep and Rajni in the same room. Deceased got up and went to washroom and asked Deepak to sleep as it was late in night and thereafter, deceased slept. In the morning of 07.04.2017, she woke up at 07:15 AM and found her husband was sleeping. She moved him and saw that he was breathing heavily. She started crying and her both kids also got up and started crying. On hearing their cries, Madhuri and Deepak came to their room and took the deceased to the hospital. She denied that blood was oozing from the nose of the deceased. She stated that she had requested the doctors for postmortem as she had suspicion over Madhuri and Deepak. She denied that she ever extended threats to her husband. She stated that she used to regularly cook food and take care of all four kids. Deepak used to quarrel with the deceased on the pretext of purchasing a motorcycle and he was apprehending that deceased would share his property with her and her children. She denied that she was in pursuit for divorce from her husband.

Accused Sanjeev Paswan stated that he has been falsely implicated in this case as PW4 and PW5 had strained relationship with co- accused Aruna and they wanted to throw her out from the house. He is SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 20 of 64 State Vs. Aruna & Anr.

innocent and he has nothing to do with the death of the deceased and all the allegations levelled against him are false and fabricated. He admitted that he used to call co-accused Aruna regarding marriage of her stepdaughter and they had no illicit relationship with each other. He considered co-accused Aruna as his sister. He denied that Aruna was residing with him when she went to Bihar on 18.11.2016.

Supplementary statement of accused Sanjeev Paswan under section 313 CrPC was also recorded on 28.11.2022 wherein he denied all the allegations levelled against him.

Accused Aruna opted to lead defence evidence whereas accused Sanjeev Paswan opted not to lead any defence evidence.

DEFENCE EVIDENCE

24. In her defence, accused Aruna examined her daughter namely Rajni as DW1. She deposed that on 06.04.2017, her father came back from the office and her mother cooked chicken rice on that day. She further deposed that except Deepak and Madhuri, everyone in the family had chicken rice. After having dinner, they all slept at their respective spaces in their home. She further deposed that she alongwith her deceased father, her mother namely Aruna and younger brother slept in one room and in the adjoining room, Deepak and Madhuri were sleeping. She further deposed that in hall Munchun, Pampu mama and Munchun's father were sleeping. In the morning, she heard cries of her mother, she woke up and saw that her father was breathing heavily. After seeing the condition of her father, she got disturbed and started crying. In the meanwhile, Deepak and Madhuri came into the room and took her father. After sometime, Deepak informed telephonically that he had been admitted in hospital and when they went to the hospital, they came to know that her father SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 21 of 64 State Vs. Aruna & Anr.

had expired.

In her cross examination, she stated that nobody entered in the room where she had slept with her parent in the intervening night of 06- 07.04.2017.

25. Thereafter, matter was fixed for final arguments.

ARGUMENTS

26. I have heard arguments put fourth by Sh. L. D. Singh, Ld. Addl. PP for the State, Sh. Joginder Tuli, Ld. counsel for accused Aruna and Sh. Narender Malawaliya, Ld. counsel for accused Sanjeev Paswan. I have also gone through the written final arguments filed on behalf of complainant as well as on behalf of accused Aruna. I have also gone through the judgments relied upon by the respective parties and perused the judicial file.

27. It is argued by Ld. Addl. PP that the allegations levelled against the accused are of serious nature. Accused Aruna and accused Sanjeev entered into a criminal conspiracy to commit murder of Nathuni Paswan and they were having an extra marital affair. Deceased Nathuni Paswan was aware about their relationship and he used to object on the same and that is why both accused persons decided to eliminate Nathuni Paswan as he was an obstruction in their relationship. Pursuant to their criminal conspiracy accused Aruna administered sleeping pills to the deceased in his dinner on 06.04.2017. PW4, PW5 and PW6 have supported the theory of deceased having dinner containing something which was very sour in taste. Accused Aruna did so on the instructions of accused Sanjeev as he was in regular touch on 06.04.2017 with Aruna telephonically. When the deceased fell asleep, accused Aruna in SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 22 of 64 State Vs. Aruna & Anr.

execution of criminal conspiracy, strangulated him with the help of gamcha. As per the PM report the cause of death is asphyxia due to strangulation and the time of death was about 3/4th of the day i.e. 18 hours prior to the commencement of the autopsy. Postmortem commenced at 05:15PM on 07.04.2017 and if 18 hours are being calculated then the time of death comes to around 11:00 PM on 06.04.2017. It is also pointed out by Ld. Addl. PP that both accused were in contact telephonically till 01:37 AM on the intervening night of 06.04.2017/07.04.2017. Accused Aruna made a last call to accused Sanjeev at 01:32 AM and thereafter, she broken her SIM and never used the same to call anyone. Therefore, it is clear that accused Aruna committed murder of deceased Nathuni in pursuance of criminal conspiracy hatched by her with accused Sanjeev Paswan. Prosecution has successfully proved this case against both the accused persons beyond reasonable doubt.

It is further argued that all the police officials have clearly proved the chain and the manner of investigation and merely because the witnesses are police officials their testimony cannot be disbelieved and for this reliance is placed on the case of Girija Prasad Vs. State of M.P. (2007) 7 SCC 625.

28. Per contra, Mr. Joginder Tuli, Ld. Counsel for accused Aruna has argued that it is a case of circumstantial evidence and the time of death has not been proved by the prosecution. It is stated that PW4 and PW5 took the deceased to hospital in the morning of 07.04.2017 and at that time deceased was breathing heavily. As per MLC the deceased was admitted in AIIMS hospital at 11:30 AM whereas the distance between the house of deceased and hospital was only 10 minutes travelling. Therefore, murder of deceased was committed by PW4 and PW5 between 07:15 AM till 11:30 AM. Accused SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 23 of 64 State Vs. Aruna & Anr.

Aruna was happily married with the deceased from last 17 years and she had no reason to commit murder of the deceased. It is argued that the prosecution has measurably failed to prove the chain of circumstances which is mandatory to secure conviction in a case based on circumstantial evidence. It is prayed that accused Aruna is entitled to be acquitted as she has been falsely implicated by the police at the instance of PW 5 Deepak.

As far as accused Sanjeev Paswan is concerned, it is argued by Sh. Narender Malawaliya, Ld. Counsel for accused Sanjeev that there is no evidence available against him apart from his CDR. As per viscera report of the deceased, no traces of sleeping pills or any other substance has been found in the body of the deceased. Therefore, the theory of administering sleeping pills by Aruna at the behest of accused Sanjeev has fallen flat on its face. It is stated that a person cannot be convicted merely on the basis of CDR without any other corroborating evidence against him.

29. I have heard the arguments at length and perused the entire record.

FINDINGS

30. The accused Aruna has been been charged for the commission of offences punishable under Section 302/120-B/201 IPC whereas accused Sanjeev has been charged in for the commission of offences under Section 302/120-B/174-A IPC.

31. The relevant Sections are reproduced as under:

SECTION 302 IPC "Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine".

SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 24 of 64 State Vs. Aruna & Anr.

SECTION 120-B IPC Punishment of criminal conspiracy.--

(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.] Section 201 IPC

201. Causing disappearance of evidence of offence, or giving false information to screen offender.--

Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any infor-

mation respecting the offence which he knows or believes to be false; if a capital offence.--shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; if punishable with imprisonment for life.--and if the offence is punishable with 1[imprisonment for life], or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; if punishable with less than ten years' imprisonment.--and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 25 of 64 State Vs. Aruna & Anr.

or with fine, or with both.

SECTION 174-A IPC Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.]

32. It is a settled law of criminal jurisprudence that a person is believed to be innocent till the guilt is proved against him. This principle is called The Presumption of Innocence. In another words, the accused is entitled to take advantage of reasonable doubt in respect of his crime. The principle finds its genesis in the Declaration of Human Rights under Article 11 Section 1 incorporated by the United Nations in 1948. It is also mentioned in the European Convention for the Protection of Human Rights in Article 6 Section 2 and United Nations International Covenant on Civil and Political Rights under Article 14, Section 2.

Presumption of Innocence is a re-statement of the rule that in criminal matters the prosecution has the burden of proving guilt of the accused in order to be convicted of the crime of which he is charged.

In Chandrashekhar Vs. State of Himachal Pradesh decided on 06.07.2018 relying on judgment of Data Ram Singh Vs. State of UP passed by the Hon'ble Supreme Court on 06.02.2018, it was held that:

"the freedom of an individual is utmost important and cannot be curtailed specially when guilt if any, is yet to be proved. It is settled law that till such time guilt of a person is proved, he SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 26 of 64 State Vs. Aruna & Anr.

is deemed to be innocent........ A fundamental postulate of criminal juris prudence is a presumption of innocence meaning thereby that a person is believed to be innocent until found guilty..........

Thus, the inference which is culled out from the above is that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt.

33. In this backdrop, I proceed to delve upon the evidence adduced on behalf of the prosecution.

TIME AND PLACE OF DEATH 34.1 As per the prosecution story the deceased was strangulated by accused Aruna on the intervening night of 06/07.04.2017 when he was sleeping in the same room with accused Aruna and their kids namely Kuldeep and Rajni. On the other hand it is argued on behalf of accused Aruna that it is a matter based upon circumstantial evidence and there is no eye witness of the alleged offence. Sh. Joginder Tuli Ld. Counsel for accused Aruna has argued that the case of the prosecution depends upon the postmortem report to support the fact that deceased Nathuni Paswan was strangulated by accused Aruna in her room. It is pointed out that it is admitted case of PW4, PW5 and PW6 that they took deceased to the hospital around 07:00-7:30 AM but as per contents of MLC he was admitted in hospital at 11:30 AM. PW4 and PW5 have admitted that the distance between their house and hospital was around 10-15 minutes. They have also admitted in their cross-examination that they reached at hospital around 08:00 AM. If that was the case then how come deceased was attended by the doctor at 11:30 AM. Mr. Tuli has pointed out towards a possibility that deceased was murdered by PW4 and PW5 during the time gap of 07:15-7:30 AM till 11:30 AM. The motive attributed by Ld. SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 27 of 64 State Vs. Aruna & Anr.

Defence counsel to PW5 Deepak is that he had an argument one month ago with deceased Nathuni Paswan on the pretext of purchasing a motorcycle. Hence, the time gap of four hours has not been explained by PW4 and PW5 and it cannot be ruled out that Nathuni Paswan was murdered by them. It is also argued that prosecution has failed to prove the time of death with certainty.

34.2 Ld. Counsel for accused Aruna has relied upon an American Medical Journal i.e. NCBI (National Center for Biotechnology Information) - National Library of Medicine - National Institute of Health as well as Modi's Medical Jurisprudence to support the fact that full Rigor Mortis would appear on the dead body within 6 to 8 hours. He also relied upon a report on "Methods of Estimation of Time Since Death" - stat pearls- NCBI book shelf wherein it is stated that the rigor mortis appears approximately two hours after death in the muscles of the face, progresses to the limbs over the next few hours, completing between 6-8 hours after death. He argued that if we calculate 8 hours from the commencement of PM then the time of death comes to 09:00 AM on 07.04.2017.

34.3 Prosecution has examined PW3 Dr. Adarsh Kumar and PW14 Dr. Rajesh Kumar to prove the postmortem report which is Ex. PW3/A. As per the postmortem report the cause of death was asphyxia due to strangulation. The time of death was stated to be about ¾th of a day. Both these witnesses have been cross-examined at length on behalf of both accused persons. PW3 clarified in his cross-examination that time since death was about ¾ th of the day before the commencement of autopsy. It is a matter of record that autopsy started on 05:15 PM on 07.04.2017. PW 14 has also clarified the time of death SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 28 of 64 State Vs. Aruna & Anr.

in his cross-examination when he decodified the term ¾ th of a day as 18-24 hours as mentioned in the PMR. Meaning thereby, both these expert witnesses have stated that the estimated time of death was roughly 18 hours to the commencement of the postmortem examination. If we calculate 18 hours from 05:15 PM backwards then the estimated time of death comes around 11:00 PM on 06.04.2017. The doctor cannot tell the exact time of death and only an estimated time can be given after postmortem of the deceased. If we presume that the time of death may vary from 1-2 hours from the estimated time of death then the deceased was murdered from 10:00 PM-01:00 AM on that fateful night. It is a matter of record that deceased was alive around 10:00 PM as it has been deposed by PW4, PW5 and PW6 in their testimonies. They have stated that after having dinner at 09:00 PM, deceased went to washroom around 10:00 PM and he asked PW5 Deepak to sleep as it was late in the night. This fact has also been corroborated by Aruna in her statement under section 313 CrPC. There is no dispute regarding this fact from the defence side that deceased was not alive around 10:00 PM. Therefore, the deceased died only after 10:00 PM. If we consider the time of 01:00 AM as the time of death even then the death occurred in the room where the accused was sleeping with the deceased with her kids. It is also proved by the prosecution that accused Aruna was in constant touch with co-accused Sanjeev Paswan as she made her last telephonic call to him at 01:32:54 AM. The call was of 291 seconds. Therefore, on the basis of CDR of accused Aruna it is clear that she had not slept till 01:40 AM on that night. If death of the deceased occurred after 10:00 PM and around 01:00 AM then it must be in the knowledge of accused Aruna as to how the same occurred as she was in the same room and was having conversation with co-accused Sanjeev Paswan. Therefore, I do agree with Ld. Defence counsel that there is no certain time of death but it is clear that the death SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 29 of 64 State Vs. Aruna & Anr.

occurred between 10:00 PM-07:00 AM next morning when the family members came to know that he was not alive.

34.4 Ld. Defence counsel has relied upon case titled as Balaji Gunthu Dhule Vs. State of Maharashtra (2012) 11 SCC 685 to fortify his argument that a person cannot be convicted merely on the basis of postmortem report. I have gone through the judgment but in that case there were six eye witnesses whereas in the present case is based upon the circumstantial evidence only and there is no eye witness as such. Secondly, it was observed by the Hon'ble Supreme Court that evidence of eye witness was found to unreliable and conviction of the accused merely on the basis of postmortem report was not maintainable. In the present case, we have testimonies of PW4, PW5 and PW6 who have stated that they woke up in the morning of 07.04.2017 after hearing cries of DW1 Rajni. PW4 has deposed as under:

"on 07.04.2017 I got on hearing the cries of Rajni as she was weeping. I rushed to the room of my father and I saw that accused Aruna and Rajni were sitting by the side of my father and accused Aruna was cleaning the blood with the piece of cloth which was coming from the nose of my father. I found the body of my father in stiff condition and having some blackish colour/marks under his eye and blood oozing from his nose. I also noticed that his stomach had swollen."

34.5 Similar is the version of PW5 Deepak and PW 6 Munchun Kumar about the condition of the deceased when they woke up on 07.04.2017. There is not even a single suggestion from defence side in the cross-examination of PW4, PW5 and PW6 regarding the physical condition of the deceased on the morning of 07.04.2017, therefore, this fact is duly proved beyond reasonable doubt that condition of the deceased was such as described by PW4, PW5 and PW6. Therefore, in the present case the estimated time of death i.e., 18 hours prior to the postmortem is duly corroborated with the oral testimonies of PW 4, SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 30 of 64 State Vs. Aruna & Anr.

PW5 and PW6. The case of the prosecution is not solely dependent upon opinion of the doctor but there are oral testimonies that the deceased was murdered on that fateful night in the same room where he slept with the accused. Hence, Balaji Gunthu's case (discussed supra) is not applicable to the present facts.

34.6 As far as aspect of rigor mortis is concerned the same was found to be present all over the body. The estimated time of death as 09:00 AM on behalf of accused Aruna is a mere assumption without any supporting evidence. On the other hand we have oral testimonies of PW4, PW5 and PW6 supported by expert opinion of PW3 Dr. Adarsh Kumar, PW14 Dr. Rajesh Kumar and more importantly postmortem report to support the estimated time of death 18 hours prior to the postmortem. PW4, PW5 and PW6 have categorically described the physical condition of the deceased at 07:00 AM in the morning of 07.04.2017 which has not been disputed by the accused persons. Although, accused Aruna has examined her daughter Rajni as DW1, who has deposed that deceased was breathing heavily when he was taken to hospital. But it seems that this defence has cropped up in the mind of the accused at a belated stage to support the theory that deceased was killed by PW5 between 07:15 AM-11:30 AM. Had it been the reality, suggestions should have been given to PW4, PW5 and PW6 during their cross-examinations to the fact that deceased was breathing heavily when he was taken to the hospital. It is not put to PW5 Deepak that he committed murder of deceased between 07:30 AM-11:00 AM on 07.04.2017. A vague suggestion has been given to him that he concocted a false story in order to save himself from this case. How Deepak was trying to save himself, has not been clarified in so many words by the defence counsel. Therefore, the issue of rigor mortis has no bearing on the SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 31 of 64 State Vs. Aruna & Anr.

estimated time of death of the deceased.

34.7 Ld. Defence counsel has also relied upon Ramreddy Rajeshkhanna Reddy Vs. State of Andhra Pradesh (2006) 10 SCC 172 to support the fact that medical science is not so perfect as to determine the exact time of death nor can the same be determined in a computerized or mathematical fashion so as to be accurate to the last second. I have gone through the judgment also and in Ramreddy's case (discussed supra) the Hon'ble Supreme court quoted its observation in Pattipati Venkaiah Vs. State of Andhra Pradesh MANU/SC/0087/1985 which is being quoted by Ld. Defence counsel for Aruna in his additional written final arguments. In Pattipati's case there was a delay of five hours of taking the dead body to the hospital and it was held by Supreme Court that medical science is not so perfect to determine the exact time of death. In the present case, the death occurred in the night and in the morning of 07.04.2017, the deceased was taken to the hospital by PW4 and PW5. As per PM report the death occurred 18 hours prior to the PM examination. As stated earlier only an estimated time of death has been given by the board of doctors but on the basis of oral testimonies of PW4, PW5 and PW6 it is clear that the deceased was already dead when everybody woke up in the house in the morning of 07.04.2017. Therefore, Ramareddy's case (discussed supra) has no bearing on the present case and is not going to help the accused in any manner whatsoever.

34.8 It is argued by Ld. Addl. PP for State that in the PM report it has been mentioned that 400 ml of partially digested food material (rice material) was found present. He argued that food is being digested in a human body in a time gap of 3-4 hours. Admittedly deceased had his dinner around 09:00 PM SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 32 of 64 State Vs. Aruna & Anr.

and if partially digested rice was found to be present in his stomach then it is clear that he died within 3-4 hours of having his dinner and that is why his food was found in partially digestive form. Therefore, the presence of partially digestive rice in the stomach of the deceased is corroborating the estimated time of death given by board of doctors i.e., 18 hours prior to the commencement of the postmortem.

34.9 On the other hand, Ld. counsel for accused Aruna has relied upon case titled as P. Venkaiah Vs. State of Andhra Pradesh in his written final arguments. Citation of the judgment has not been mentioned by ld. Counsel. As per submission in para 8 of additional written final arguments, the Hon'ble Supreme Court held in this case that the question of time of death of the victim should not be decided only by taking into consideration the state of food in the stomach. This may be a factor which should be considered alongwith other evidence but this fact alone can not be decisive. Where there is positive direct evidence about the time of occurrence, it is not open to the court to speculate about the time of occurrence by the presence of faecal matter in the intestines. The purpose of citing this judgment on behalf of accused is that partially digestive rice found in the stomach of the deceased cannot be the sole ground to decide the time of death. It is also pointed out that in Modi's Medical Jurisprudence- 23 addition in chapter 14 at page No. 450, it is mentioned that undigested food remained in a deceased person's stomach for over 40 hours.

34.10 In Modi's jurisprudence it is mentioned that the rate of emptying of stomach varies in a healthy person. It depends upon:

1.) consistency of food SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 33 of 64 State Vs. Aruna & Anr.

2.) motility of the stomach

3.) Osmotic pressure of the stomach contents

4.) quantity of food in the duodenum

5.) surroundings in which food is taken

6.) emotional factors and

7.) residual variations.

It is correct that one case has been mentioned in the book wherein food consisting chiefly of rice and daal remained in the stomach for about 40 hours without undergoing digestion. But as a general rule of rate of emptying stomach it varies in a man from 2.5 to 6 hours. Ld. counsel for accused Aruna has stressed upon one exceptional case wherein undigested food was found after 40 hours instead of relying upon the general rule that food would be digested within 2.5 to 6 hours.

34.11 In the book titled as "Essentials of Medical Physiology 6th Edition" authored by K. Sembulingam and Prema Sembulingam, the time of digestion of food, as 2.5 to 6 hours mentioned in Modi's Jurisprudence, has been duly corroborated at page 232 wherein it is stated as under:

"FUNCTIONS OF STOMACH

1. Storage function Food is stored in stomach for long period i.e., for 3-4 hours and emptied into the intestine slowly. The maximum capacity of stomach is upto 1.5 liters. Slow emptying of stomach provides enough time for proper digestion and absorption of food substances in the small intestine."

Hence, going by Modi's jurisprudence and book titled as "Essentials of Medical Physiology 6th Edition" as the general rule, it is well established and universally accepted that food would digest from 3-6 hours of the intake. The court cannot rely upon an exceptional case by ignoring the general rule of medical science. Applying the general rule of rate of emptying SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 34 of 64 State Vs. Aruna & Anr.

stomach to the deceased, it is clear that he expired prior to digestion of his dinner which he had around 09:00 PM. So much so, the food was found in the stomach itself in undigested form and it did not enter the intestine which reflects that deceased expired within 3-4 hours after having dinner. This aspect duly corroborates the estimated time of death given by the board of doctors, who conducted the postmortem examination. Therefore, the argument based on one exceptional case, wherein the food was found undigested after 40 hours is not relevant to the present case and accordingly, stands rejected.

34.12 Going by the ratio of P. Venkaiah's judgment (discussed supra), there has to be some positive direct evidence about the time of occurrence and only recovery of food in the stomach should not be the criteria to decide the time of death. It has been projected on behalf of accused persons that deceased expired between 07:30 AM-11:30 AM on 07.04.2017 when he was in company of PW4 and PW5. However, as noted above there are oral testimonies of PW4, PW5 and PW6 that condition of the deceased at 07:15 AM was that his body was stiff and stomach had swollen. He had dark blackish colour mark under his eye and blood was oozing out from his nose. As no suggestion has been given by the defence side to these witnesses in their cross examination qua the physical condition of the deceased at 07:15 AM, it amounts to admission on their part. Therefore, the opinion of board of doctors qua the time of death is duly corroborated by the oral testimonies of PW4, PW5 and PW6. Hence, P. Venkaiah's case (discussed supra) is not going to help the cause of accused persons as the time of death is not only based upon the opinion of doctors but it is duly corroborated by the oral testimonies of reliable and trustworthy witnesses.

SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 35 of 64 State Vs. Aruna & Anr.

34.13 Considering the above discussion, it is clear that deceased Nathuni Paswan expired in the intervening night of 06-07.04.2017 when he was sleeping in the same room with accused Aruna. He expired within 3-4 hours after having his dinner around 09:00 PM. Therefore, the time of death of deceased was around 11:00PM-01:00 AM on the said night. The place of death was his room only and these facts stands proved by the prosecution.

CAUSE OF DEATH 35.1 As per the prosecution's story, accused Aruna administered sleeping pills to deceased in his dinner and these pills were supplied by co- accused Sanjeev Paswan to her. There are oral testimonies to this effect that deceased was served with rice and chicken by accused Aruna and he found the taste of the same to be bitter. He could ate only few spoons of the same and asked for something else. Accused Aruna threw the left over of the deceased into the dustbin and served rice and daal in the same plate to the deceased. This time the deceased did not complain of the bitter taste and he ate the same without any objection. On the basis of testimonies of PW4, PW5 and PW6, prosecution has tried to prove the theory of sleeping pills being given by accused Aruna to the deceased. However, this theory had been refuted by the defence as same is not supported by the viscera report.

35.2 As stated above, it is projected on behalf of prosecution that sleeping pills were procured by accused Sanjeev paswan and handed over to co-accused Aruna when Sanjeev Paswan came to Delhi in March 2017. Prosecution has proved the call details record of accused Sanjeev Paswan and after going through the same it is clear that Sanjeev Paswan was not in Delhi in March 2017 as per CDR. Moreover, in disclosure statement of accused Sanjeev SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 36 of 64 State Vs. Aruna & Anr.

Paswan, he allegedly disclosed that he procured the sleeping pills from a chemist at AIIMS Hospital. Investigating Officer has failed to trace out any chemist to prove this theory propounded in alleged disclosure statement of accused Sanjeev. The theory of sleeping pills also stands rejected in view of the viscera report. Prosecution has examined Dr. Kanak Lata Verma as PW16, who had prepared the FSL result. It was put to the witness in her cross examination that if sleeping pills or sedative tablet is administered to the patient, who later on dies what would be the result of viscera examination. The witness deposed that the drug/metabolites may be detected, if present in the exhibits at the time of examination. She further stated that in the present case no such drug/metabolites could be detected. Allegedly, sleeping pills were given to the deceased in his dinner on the evening of 06.04.2017 and his postmortem was conducted within 24 hours of his death. As per the viscera report, no remnants of drug/sleeping pills could be detected by the FSL expert. Hence, in absence of any source of procurement of sleeping pills i.e., chemist and viscera report, the theory of sleeping pills projected by prosecution is not proved beyond reasonable doubts.

35.3 The cause of death as per PM report is asphyxia due to strangulation. The cause of death has been admitted by the accused persons also but they have tried to shift the onus of strangulation on PW5 which has already been discussed upon in the earlier portion of the judgment and found to be a hollow and sham defence by the accused persons.

MOTIVE 36.1 It is also the case of the accused persons that prosecution has failed to prove the motive behind the murder. It is argued that in a case based SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 37 of 64 State Vs. Aruna & Anr.

on circumstantial evidence, it is the duty of the prosecution to prove the motive else case of the prosecution is entitled to be rejected by the court. Although, it is not the case of accused Aruna that murder might have been committed by her kids as they were also sleeping in the same room but during the course of final arguments, it has been argued by Sh. Joginder Tuli that there is every possibility that murder might have been committed by kids of the accused and deceased and when there exists any doubt qua the role of all three occupants of the said room, accused Aruna cannot be burdened with the liability of committing murder.

36.2 The argument qua absence of motive has been dealt with by Hon'ble Supreme Court of India in case titled as State of U. P. Vs. Kishan Pal 2008 16 SCC 73 wherein the court examined the importance of motive in cases of circumstantial evidence and observed:

"38. ....the motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or excited them to commit the particular crime.

39. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive looses all its importance in a case where direct evidence of eye witnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eye witnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eye witnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."

36.3 The ratio laid down in Kishan Pal's case has been upheld by Hon'ble Supreme Court in Nandu Singh Vs. State of Madhya Pradesh (now SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 38 of 64 State Vs. Aruna & Anr.

Chattisgarh) in Criminal Appeal No. 285 of 2022 decided on 25.02.2022. Applying the ratio of Kishan Pal's case, prosecution has successfully proved the motive to commit murder as both accused persons were entangled in an extra marital affair and deceased was a major obstacle in their relationship. Their relationship has been duly proved by way of oral testimonies of PW4, PW5 and PW6 and by way of their call detailed records. So, I do not find any strength in the argument that prosecution has not proved the motive in this case. Therefore, the argument qua absence of motive is inconsequential and likely to be shelved.

36.4 As far as possibility of involvement of kids of accused namely Rajni and Kuldeep is concerned, it seems that an afterthought has cropped into the mind of the accused only at the stage of final arguments as this defence was never pleaded by her during the entire trial. An offence consists of Mens Rea and Actus Reus. Mens Rea is a mental state of an accused which reflects his intention to commit a crime where as Actus Reus is related to the actual execution of Mens Rea by the accused. Kuldeep and Rajni had no motive to commit murder of their father. It is nowhere disclosed by accused Aruna as to why would Kuldeep and Rajni commit murder of their father. Out of all the occupants of the said room, only accused Aruna had the motive to commit murder on account of her extra marital affair with accused Sanjeev Paswan and same has been duly proved by prosecution by documentary as well as oral evidence which are in consonance of previous and subsequent conduct of accused persons. Therefore, involvement of Kuldeep and Rajni in the murder is not a tenable argument and accordingly stands rejected.

SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 39 of 64 State Vs. Aruna & Anr.

CRIMINAL CONSPIRACY 37.1 It is the case of the prosecution that both accused persons entered into a criminal conspiracy to commit murder of the deceased. Accused Sanjeev Paswan was in constant touch with co-accused Aruna telephonically and this fact has been duly proved by proving their CDR. Accused Aruna executed the conspiracy by strangulating the deceased but accused Sanjeev actively participated in the conspiracy though telephonically. On the other hand, Ld. counsel for accused persons, have argued that the fact of criminal conspiracy cannot be said to be proved merely on the basis of call details record. It is specifically argued on behalf of accused Sanjeev Paswan by Sh. Narender Malawalia, Ld. counsel that except disclosure statement and CDR, there is no evidence against accused Sanjeev in this case. Accused Sanjeev cannot be said to be actively participated in the alleged murder as prosecution has failed to prove any act against him. Ld. counsel for accused Aruna has relied upon Kirti Pal and Others Vs. State of West Bengal and others 2015 11 SCC 178 decided on 16.04.2015 to fortify his argument that a person cannot be convicted merely on the basis of his call detail records.

37.2 In Rakesh Kumar and Others Vs. State 2009 (163) DLT 658 Hon'ble Supreme Court referred to a plethora of Supreme Court judgments on criminal conspiracy and eloquently summarized the law that exists with regards criminal conspiracy. It is held that when two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and everyone, who joins in the agreement. The agreement, concert or league is the ingredient of the offence. It is not necessary that all conspirators should agree SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 40 of 64 State Vs. Aruna & Anr.

to the common purpose at the same time. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. It is not a part of crime of conspiracy that all the conspirators should agree to play the same or an active role. It is the unlawful agreement and not its accomplishment which is the gist of the crime of conspiracy. Unlawful agreement is the graham of the crime of conspiracy. The agreement need not be formal or express but may be inherent in and inferred from the circumstances specially declarations, acts and conduct of the conspirators. Conspiracy is generally hatched in secrecy and it would quite often happen that there is no evidence of any express agreement between the conspirators to do or cause to be done the illegal act. The prosecution need not necessarily prove that the perpetrators expressly agreed to do an illegal act. The agreement may be proved by necessary implication. The offence can only be proved largely from the inference drawn from acts committed by the conspirators. It is not necessary to prove actual meeting of conspirators nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design is sufficient. Surrounding circumstances, antecedents and subsequent conduct of accused persons constitute relevant material to prove charge of conspiracy.

37.3 Recently, Hon'ble Delhi High Court in Rajeev @ Monu Vs. State of NCT of Delhi Criminal Appeal No. 192/17 decided on 08.10.2018 again reiterated the ratio laid down by Hon'ble Supreme Court in Rakesh Kumar's case. Going by the ratio of Rakesh Kumar's case, it is clear that prosecution need not to prove about express agreement between accused Aruna and Sanjeev to commit murder of the deceased. Prosecution has proved their call detail records to prove the factum of criminal conspiracy hatched by them.

SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 41 of 64 State Vs. Aruna & Anr.

Actually it started on 09.03.2017 when accused Aruna purchased a new SIM with number 8860054933. This number was purchased only to talk to co- accused Sanjeev. I have gone through the CDR of this number and from 09.03.2017 till the intervening night of 06-07.04.2017, there is hardly any call to any other person by accused Aruna from her new number. The first call received by her on this number was of co-accused Sanjeev on 09.03.2017 at 01:17:04 PM. If we peruse her CDR from 03.04.2017 to 07.04.2017, it reveals that she had 23 calls with co-accused Sanjeev on 03.04.2017, 10 calls on 04.04.2017, 19 calls on 05.04.2017, 18 calls on 06.04.2017 and 4 calls on 07.04.2017. These calls were made during day time as well as at odd hours at night. Admittedly, they are not related to each other. Accused Sanjeev has claimed in his statement under section 313 CrPC that he used to treat accused Aruna as his sister (munh boli behan). It is unbelievable that a so called brother was calling his so called sister so frequently even at odd hours at night. On the other hand, accused Aruna is not sure about her relationship with co-accused Sanjeev. She has termed him as a 'relative of her deceased husband' and was staying at Dharam Pur Bihar near the house of her aunt. Both of them have given an explanation of talking on the intervening night of 06-07.04.2017 as they were discussing the prospective bridegroom of PW4 Madhuri. Why would a married woman would talk to a distant relative of her husband and that too at odd hours. If co-accused Sanjeev was so worried about the marriage of Madhuri, he could have discussed with deceased Nathuni Paswan being her father. There is not even a whisper from both accused persons that they ever discussed the prospective bridegroom of Madhuri with deceased. Therefore, their explanation for talking so frequently at odd hours, is false, unbelievable and cannot be presumed even by this court.

SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 42 of 64 State Vs. Aruna & Anr.

37.4 Accused Sanjeev called accused Aruna on 06.04.2017 at 06:13:18 AM which was the trigger point of quarrel between accused Aruna and deceased. This call lasted for 391 seconds. After the deceased left for his office, accused Sanjeev again called accused Aruna at 10:33:40, 10:34:26, 11:16:35, 11:47:19, 11:48:06, 11:48:56, 12:32:55, 13:06:26, 15:17:24, 15:53:31, 16:17:18, 16:20:21, 16:51:26, 17:21:26, 19:02:13, 19:08:34 and 19:44:23. The total call duration of these calls is 16505 seconds which is equal to 4 hours 36 minutes. This call record reflects towards the active participation of co-accused Sanjeev in the commission of murder of deceased. Otherwise, what was the occasion for him to call accused Aruna throughout the day and for so long. On 06.04.2017, after 19:44:23 there is a gap and accused Aruna again called Sanjeev at 23:24:34, 00:21:24, 00:45:27 and 01:32:54. Accused Sanjeev also sent a text message to accused Aruna at 00:45:04. The total conversation between 23:24:34 till 01:32:54 is totalling upto 2312 seconds i.e., approximately 38 minutes. As per the estimated time of death, accused Aruna was talking to co-accused Sanjeev and deceased was either already dead or about to be killed between the time gap of 23:24:34 to 01:32:54 hours. The active conversation between the accused persons at that time is a clinching evidence with regard to their criminal conspiracy. As soon as, the purpose of the conspiracy was achieved, accused Aruna stopped using her new SIM after making her last call at 01:32:54 hours to co-accused Sanjeev and thereafter, she never used that SIM to call anyone. This is also a definite clue towards active participation of co-accused Sanjeev, though, he was present at Bihar but he played pivotal role in the murder of Nathuni Paswan. Accused persons have given explanation that they were calling each other frequently on that night because there were communication latches and they were not able to hear each other properly. If that was the case then the call duration should have been SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 43 of 64 State Vs. Aruna & Anr.

lesser. They conversated for about 38 minutes in the night and that too with a connectivity problem, is beyond contemplation of this court.

37.5 It is a matter of record that on 18.11.2016, accused Aruna left her matrimonial home and stayed with co-accused Sanjeev at Bihar for 2-3 days. A missing entry was lodged at PS Defence Colony and subsequently, she was brought to deceased Nathuni Paswan by her uncle (chacha) Bhola Paswan and brothers namely Santosh Paswan and Subodh Paswan. This fact has been stated by PW4, PW5 and PW6. All these witnesses have been thoroughly cross examined on behalf of both accused persons. It is nowhere suggested on behalf of accused Aruna that she was not brought back by her uncle and brothers in the year 2016. It is also suggested to PW4 that a false DD entry was lodged qua missing of accused Aruna. Meaning thereby, existence of DD entry stands admitted on behalf of accused Aruna. Accused Sanjeev has not even suggested to these witnesses that accused Aruna did not reside with him in the year 2016. Therefore, it is clear that accused Aruna stayed in company of accused Sanjeev and their antecedent and their conduct had gained significance with regard to their motive and criminal conspiracy hatched by them.

37.6 Accused Aruna got issue a new SIM on 09.03.2017 and destroyed the same on that fateful night. No explanation is available with accused Aruna as to why she got issued the new SIM and why she destroyed the same on that night itself after calling accused Sanjeev for the last time at 01:32:54 AM on 07.04.2017. Accused Sanjeev used to call accused Arun on regular basis but after death of Nathuni Paswan, he never called Aruna and this conduct is also relevant under section 8 of Indian Evidence Act. After registration of FIR, accused Aruna was arrested and name of co-accused Sanjeev also surfaced on SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 44 of 64 State Vs. Aruna & Anr.

record. When police tried to contact him, he started absconding. If he was not involved in the criminal conspiracy then, he had no reason for absconding. He could have easily joined the investigation and should have clarified to the police his stand. Instead he tried his best to abscond and consequently, was declared a proclaimed offender by the court.

37.8 In Kirti Pal's case relied upon by Ld. counsel for accused, the Hon'ble Supreme Court held that apart from telephonic conversation no other evidence was adduced by the prosecution to bring home the charge of criminal conspiracy and that is why two appellants were acquitted by the Hon'ble Apex court. In the present case, apart from proving the CDRs of both the accused persons, prosecution has also proved by way of credible and trustworthy oral testimonies of PW4, PW5 and PW6 that accused Aruna stayed in company of accused Sanjeev for 2-3 days in the year 2016. Accused Sanjeev called accused Aruna on 06:13 AM on 06.04.2017 and when the deceased objected for the same, a quarrel broke out between the deceased and accused Aruna. As noted above, accused Aruna extended threat to deceased either to divorce her or she would kill him. Accused Sanjeev talked co-accused Aruna for about 276 minutes on 06.04.2017 and after the murder, accused Aruna destroyed her new SIM and accused Sanjeev absconded. Therefore, apart from CDR, prosecution has proved their previous and subsequent conduct which point out towards the existence of criminal conspiracy between both the accused persons. Hence, with utmost regard to Hon'ble Supreme Court, Kirit Pal's judgment is not applicable to the present case and is being differentiated with the facts of the case.

37.9 As per Section 8 of Indian Evidence Act any previous or SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 45 of 64 State Vs. Aruna & Anr.

subsequent conduct of any party would be relevant if it influences or is influenced by any fact in issue or relevant fact. Now, the court has to consider the previous and subsequent conduct of both the accused persons. It is deposed by PW4, PW5 and PW6 that accused Aruna left her matrimonial home on 18.11.2016 and stayed with accused Sanjeev at Bihar. It is also previous conduct of accused Sanjeev that he called accused Aruna on 06.04.2017 in the morning and accused Aruna extended threat to kill deceased during her altercation with him. Both accused persons remained in constant touch on 06.04.2017 and even on the fateful night till 01:32:54 AM. This is also their previous conduct which is directly connected with the fact in issue. It is the matter of record that when PW4, PW5 and PW6 entered into the room of the deceased after hearing cries of Rajni, accused Arun was cleaning the blood oozing out from the nose of the deceased. She was in no hurry to take the deceased to the hospital despite the fact that deceased was suffering from no ailment and was not receiving any kind of treatment. She did not inform any member of the family after realizing that deceased was not responding. She did not call for an ambulance and she also did not accompany the deceased to the hospital. If a wife finds her husband in such a condition then her reaction and conduct would be altogether different in contrast with the conduct of accused Aruna. The deceased was declared dead by the doctor and in the MLC, the doctor had noted down that it was a police case. Prior to preparation of MLC, nobody from the family of the deceased had any doubt about his death and therefore, police was not informed. The doctor on duty found something suspicious and advised PW5 Deepak to get postmortem on the body of the deceased. Accused Aruna refused on more than one occasion for the postmortem examination. This is again highly improbable conduct that a wife would not agree to find out the real cause of his husband's unnatural death.

SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 46 of 64 State Vs. Aruna & Anr.

Even if we presume that accused Aruna thought that it was a natural death even then there was no harm in getting a postmortem done to find out the real cause of death. She got a new SIM for herself in March 2017, stayed in contact with co-accused Sanjeev on 06.04.2017 throughout the day, conversated with accused Sanjeev off and on at the estimated time of death, stopped using her new SIM on that night itself, did not call for an ambulance in the morning, did not accompany the deceased to the hospital and refused for postmortem of the deceased, when all these shades of her conduct are kept together, they have become of extreme importance and squarely covered under section 8 of Indian Evidence Act.

37.10 In Sidharth @ Manu Sharma Vs. State NCT of Delhi (2010) 2 SCC (Cri) 1385, it has been held by Hon'ble Supreme Court as under:

"thus, it has been proved beyond reasonable doubt that accused Manu Sharma absconded after the incident which is a very relevant conduct under section 8 of Evidence Act."

The conduct of accused Sanjeev Paswan in the present case is exactly similar when he absconded after the incident which points out towards his guilt and his involvement in the criminal conspiracy. His association with co-accused Aruna since 2016, elopement of accused Aruna from her house and staying with him, his constant telephonic touch with accused Aruna and his subsequent conduct after the murder are enough inferences to conclude that he actively participated in furtherance of criminal conspiracy and his previous and subsequent conduct is directly attached to the fact in issue and hence, relevant and admissible against him under section 8 of Indian Evidence Act. Accordingly, there is enough evidence on record to arrive at a decision that prosecution has successfully proved the charge of criminal conspiracy against both the accused persons.

SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 47 of 64 State Vs. Aruna & Anr.

DELAY IN FIR AND CONDUCT OF PW5 DEEPAK 38.1 It is argued on behalf of accused Aruna that there is an inordinate delay in registration of FIR. The alleged offence was committed on 07.04.2017 whereas the FIR was registered on 12.05.2017. The delay has not been explained by the police. It is a matter of record that postmortem was conducted on 07.04.2017 and the report of the same was received by the police on 12.052017 only. Instantly, police registered the FIR and therefore, I am of the considered view that there is no delay in registration of FIR in this case. The delay of 35 days occurred due to non availability of postmortem report and the liability of the same cannot be attributed to the police.

38.2 It is also argued on behalf of accused Aruna that the conduct of PW5 Deepak was suspicious on 07.04.2017. He gave a statement to the police on 07.04.2017 which is Ex. PW5/DA wherein he had stated to the police that his father had died due to illness and he had no suspicion in the death of his father. It is argued that if PW5 Deepak was suspicious about the involvement of accused Aruna on 07.04.2017 itself then why he gave such statement to the police. It is stated that after registration of FIR, PW5 Deepak changed his version and falsely implicated the accused in this case.

38.3 It is correct that in statement Ex. PW5/DA, PW5 did not raise any suspicion on anyone about the death of his father but similar kind of statement which is Ex. PW7/A was given by second son of the deceased namely Kuldeep, who is biological son of accused Aruna also. Statement of one relative namely Chandeshwar which is Ex. PW7/B is also on the similar lines. Therefore, it is clear that on 07.04.2017, no family member had doubt about the natural death of deceased Nathuni Paswan. The story took a new turn only SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 48 of 64 State Vs. Aruna & Anr.

after receipt of postmortem report. Thereafter, call details were analyzed by the police and involvement of accused persons was traced. If we go by the reasoning as to why suspicion was not raised by PW5 Deepak on 07.04.2017 then the similar standard would be applied to accused Aruna also. She has also put up a defence that deceased was alive in the morning on 07.04.2017 when he was taken to hospital by PW4 and PW5. She could have also stated to the police on 07.04.2017 itself regarding the involvement of PW4 and PW5 in the murder of deceased Nathuni Paswan. She did not do so for the obvious reasons and was under an impression that her act would be brushed under the carpet after proceedings done by police on 07.04.2017. This is a case which is based upon circumstantial evidence and not eye witnesses. The deceased died an unnatural death on the fateful night when he was sleeping in the same room with accused Aruna. Therefore, the presumption under section 106 of Indian Evidence Act is such strong that other aspects has become of minimal importance. PW5 Deepak has only deposed about the previous and post conduct of accused Aruna after registration of FIR which founds to be in corroboration with call detail records of the accused and other circumstantial evidence. Prosecution case is not solely dependent on the testimony of PW5 Deepak but his deposition has proved the conduct of accused Aruna. Therefore, statement recorded by the police on 07.04.2017 of PW5 Deepak, Kuldeep and Chandeshwar have no bearing on the merits of this case.

WEAPON OF OFFENCE 39.1 It is argued on behalf of accused Aruna that the alleged weapon of offence i.e., gamcha has been planted by the IO upon the accused. The recovery has been effected after a gap of around 40 days of the murder and that too from the box of the bed from the house of accused Aruna. It is argued that SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 49 of 64 State Vs. Aruna & Anr.

the bed and the room was accessible to all members of the house and moreover, such gamchas are easily available in market. It is further pointed out that there is no connecting forensic evidence that this gamcha was used to strangulate the deceased.

39.2 The postmortem of the deceased was conducted on 07.04.2017 but the report was not given to the police by the doctors. The report only received on 12.05.2017. As per the postmortem report the cause of death was found to be asphyxia due to strangulation and then the FIR was registered. Accused Aruna was arrested on 18.05.2017 and her disclosure statement was recorded. She disclosed as to how she committed murder of the deceased and she also disclosed about the weapon of offence used by her. Pursuant to her disclosure statement, IO got recovered the gamcha from the box of her bed and this recovery is admissible under section 27 of Indian Evidence Act. This fact that ligature material was gamcha was never in the knowledge of police and it only came on record during the disclosure statement of accused Aruna. This fact was in special knowledge of accused Aruna which she revealed during her disclosure statement. In State (NCT of Delhi) Vs. Nanvjot Sandhu 2005 (11) SCC 600, Hon'ble Supreme Court, while relying upon the decision of Privy Council in Pulukuri Kottaya Vs. Emperor AIR 1947 PC 67, held as under:

"125. We are of the view that Kottaya case is an authority for the proposition that 'discovery of fact' cannot be equated to the object produced or found. It is more than that. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place."

In Rajeev @ Monu's case (discussed supra) the Hon'ble High Court held as under:

"31. For application for section 27 IEA, admissible portion of SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 50 of 64 State Vs. Aruna & Anr.

confessional statement has to be found as to a fact which was the immediate cause of discovery and only that would be a part of legal evidence and not the rest. In a statement if something new is discovered or recovered from the accused, which was not in the knowledge of the police before disclosure statement of the accused, is admissible in evidence."

39.3 Applying the ratios of Pulukuri Kottaya's case, Navjot Sandhu's case and Rajeev @ Monu's case (discussed supra) to the present case, the recovery of weapon of offence i.e., gamcha is very much admissible against accused Aruna under section 27 of Indian Evidence Act. The place of recovery is the box of her bed which cannot be said to be a public place by any stretch of imagination. The recovery is not a tainted one even the place of recovery was accessible to other members of the house. Where the gamcha was kept was in special knowledge of the accused only and she got recovered the same from the box of her bed. Even if for the sake of argument it is considered that recovery of gamcha is not admissible even then it is a relevant fact against accused Aruna under section 8 of Indian Evidence Act.

39.4 As far as non availability of forensic report connecting the gamcha as a weapon of offence is concerned, PW3 has stated in his cross examination that injuries to the deceased were possible by the produced ligature material. However, no certain opinion has been given by PW3 that ligature mark was caused by the gamcha only. It is deposed that any other material of like nature may produce similar ligature marks. As concluded above, the deceased died in his room that night and the cause of death was strangulation. The weapon of offence i.e., gamcha was recovered by the police at the instance of accused Aruna from her bed and the recovery is admissible under section 27 of Indian Evidence Act. In the light of these facts, the absence of forensic report connecting the gamcha with the body of the deceased SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 51 of 64 State Vs. Aruna & Anr.

biologically, is of no impact in my considered view. Therefore, I find no strength in the argument that recovery of weapon of offence is a tainted one and has been planted by the IO upon the accused.

APPLICABILITY OF SECTION 106 OF INDIAN EVIDENCE ACT 40.1 The present case is based upon circumstantial evidence and there is no eye witness of the alleged murder despite presence of several members in the house on that fateful night. It is admitted case of the prosecution and defence that deceased, accused Aruna, DW1 Rajni and Kuldeep had slept in the same room on that night. Other members were sleeping in other rooms. Accused Aruna has examined her daughter Rajni as defence witness and she has stated that no stranger or any other person entered into their room on the intervening night of 06-07.04.2017. There is nothing on record to suggest that there was any commotion or forcible entry in the house that night. Whatever happened was within four walls of that room and there only deceased was found dead in the morning of 07.04.2017. Therefore, it was in the special knowledge of the occupants of the said room as to how, when and by whom the murder was committed. After having dinner, the deceased was last seen alive in the company of accused Aruna and her kids namely Rajni and Kuldeep. As per prosecution's case accused Aruna was having an extra marital affair with co-accused Sanjeev and deceased used to object on their relation. This was the motive behind the murder of deceased. Rajni and Kuldeep had no motive to commit murder of their father. Therefore, the onus got shifted upon accused Aruna to explain the circumstances in which the deceased expired that night in their room. The issue of last seen alive has been deliberated over in Nizam Vs. State of Rajasthan decided on 04.09.2015 Hon'ble Supreme Court SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 52 of 64 State Vs. Aruna & Anr.

relying on State of Rajasthan Vs. Kashiram (2006) 12 SCC 254 held as under:

"Elaborating the principle of "last seen alive" in State of Rajasthan vs. Kashi Ram, (2006) 12 SCC 254, this Court held as under:- "23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re. (AIR 1960 Mad 218)" The above judgment was relied upon and reiterated in Kiriti Pal vs. State of West Bengal, (2015) 5 Scale 319."

40.2 Applying the ratio of Nizam's case (discussed supra) to the present case, no explanation has been given by accused Aruna as to how deceased has expired. It is not the case that accused Aruna was sleeping because as per CDR, she called accused Sanjeev Paswan lastly at 01:32:54 AM and the call lasted for 291 seconds. Meaning thereby, she was awoke till 01:40 AM as per her CDR. As discussed above, the estimated time of death of deceased comes out to be 11:00 PM till 01:00 AM. Therefore, it was in the SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 53 of 64 State Vs. Aruna & Anr.

special knowledge of accused Aruna as to who strangulated the deceased and she could have explained the circumstances because she was very much active and talking to co-accused till 01:40 AM. In her statement recorded under section 313 CrPC, she has given an explanation that she was talking to co- accused to discuss the prospective bridegroom of PW4 Madhuri. Similar is the explanation of co-accused Sanjeev in his statement under section 313 CrPC. It has been put to PW4 during her cross examination that she and her brother Deepak were hell bent upon to oust accused Aruna from their house. A suggestion has been given to her that she has concocted false story to implicate accused Aruna in connivance with her brother with an intent to grab the property and out of jealously. On one hand, every effort is being done to discredit the testimony of PW4 Madhuri as she was allegedly jealous of accused Aruna and on the other hand, accused persons, were discussing her prospective bridegroom and that too till 01:32:54 AM. The explanation for talking to co-accused Sanjeev furnished on behalf of accused Aruna is out rightly false and devoid of any merit. It is also matter of record that accused Sanjeev called on accused Aruna's number at 06:13:18 AM on 06.04.2017 which triggered the quarrel between the deceased and accused Aruna. This call has been denied by both the accused persons but same stands proved through their CDRs. Oral testimonies are also on record that accused Sanjeev called accused Aruna in the morning of 06.04.2017 and when the deceased objected for the same, it resulted into a serious altercation between them. During that altercation, as per version of PW4, accused Aruna stated to the deceased that either divorce her or she would kill him. When deceased came back from his office, there was again an altercation between him and accused Aruna and Aruna stated again mera bas chale toh men tumhe jehar khila kar maar doo. PW6 also deposed that in the evening accused Aruna asked the deceased to SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 54 of 64 State Vs. Aruna & Anr.

divorce her and threatened that if she was not divorced either she will kill herself or she will kill Nathuni. Therefore, accused Aruna and Sanjeev had the motive to eliminate the deceased.

40.3 In Jayanti lal Verma Vs. State of M. P. (Now Chattisgarh) Crimianl Appeal No. 590/15 decided on 19.09.2020, it was held by Hon'ble Supreme Court here as under:

"24. In our view, the most important aspect is where the death was caused and the body found. It was in the precincts of the house of the appellant herein where there were only family members staying. The High court also found that the location of the house and the surrounding building was such that there was no possibility of somebody from outside coming and strangulating the deceased and that too without any commotion being caused or any valuable/ jewellery missing.

25. We are confronted with a factual situation where the appellant herein, as a husband is alleged to have caused the death of his wife by strangulation. The fact that the family members were in the home sometime before is also quite obvious. No explanation has been given as to how the wife could have received the injuries. There is strong circumstance indicating that he is responsible for commission of a crime. The appellant herein was under an obligation to give a plausible explanation regarding the cause of the death in the statement recorded under section 313 CrPC and mere denial could not be the answer in such a situation."

40.4 In Jayanti Lal Verma'a case (discussed supra), Hon'ble Supreme Court upheld the conviction of the appellant and dismissed the appeal while relying upon section 106 of Indian Evidence Act. Applying the ratio of Jayanti Lal Verma's case to the present case accused Aruna has also failed to give a plausible explanation about the death of deceased at the time of recording of statement under section 313 CrPC. She has tried to put up a case in her statement under section 313 CrPC by stating that deceased was breathing when he was taken to hospital by PW4 and PW5 but that theory had SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 55 of 64 State Vs. Aruna & Anr.

already been found to be without any foundation and stands rejected. In reply to question No. 19, she has answered that on 07.04.2017 she woke up at about 07:15 AM and she found her husband was still sleeping. She moved him and saw that he was breathing heavily. On this she started crying and her kids also woke up and they also started crying. Thereafter, PW4 and PW5 took the deceased to the hospital. If this version of accused Aruna is believed then what was the reason for her to cry as deceased was allegedly breathing heavily only. It is also matter of record that she did not try to call for an ambulance or to take the deceased to the hospital and she also did not accompany the deceased to the hospital. All these aspects reflect that she was sure about the fate of the deceased and that is why she started crying. However, as per deposition of PW4, PW5 and PW6, they heard the cries of DW1 Rajni and when they reached in their room, they saw that accused Aruna was cleaning the blood oozing out from the nostrils of the deceased. Therefore, the version of accused Aruna is contradictory to the deposition of material witnesses.

40.5 In case of circumstantial evidence, it is a combination of fact creating a network through which there is no escape for the accused because the facts taken as a whole do not admit of any inference but of his guilt. In Ananat Chintaman Lagu Vs. State of Bombay AIR 1960 SC 500, it was held that conduct of the accused may form a link in the chain of circumstances which will be evident.

40.6 The landmark judgment on appreciation of circumstantial evidence is passed by Honb'ble Supreme Court in case titled as in Sharad Birdhichand Sarda vs. State of Maharashtra AIR 1984 SC 1622. Hon'ble Supreme Court laid down five golden principles while evaluating the SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 56 of 64 State Vs. Aruna & Anr.

circumstantial evidence and same have been reiterated by Hon'ble Apex court in case titled as Dr. Sunil Clifford Daniel vs. State of Punjab (Crl. Appeal No. 2001 of 2010 decided on 14.09.2012), the Hon'ble Supreme Court held as under:

"17. In Sharad Birdhichand Sarda vs. State of Maharashtra AIR 1984 SC 1622, it was held by this Court that, the onus is on the prosecution to prove, that the chain is complete and that falsity or untenability of the defence set up by the accused, cannot be made the basis for ignoring any serious infirmity or lacuna in the case of the prosecution. The Court then proceeded to indicate the conditions which must be fully established before a conviction can be made on the basis of circumstantial evidence. These are:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

40.7 Ld. counsel for accused Aruna has also relied upon Sharad Birdhichand Sarda's case and Gargi Vs. State of Haryana 2019 9 SCC 738. In Gargi's case, husband was killed by strangulation and allegations of the same were levelled against his wife. The wife was having extra marital affair and she killed her husband with the help of co-accused persons and hanged the dead body in one of the rooms of the house to project it as the case of suicide. The trial court convicted all the accused persons. In appeal, Hon'ble High Court acquitted her brothers from the charge of conspiracy but upheld the conviction against the wife. While acquitting the wife from the charge of SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 57 of 64 State Vs. Aruna & Anr.

murder Hon'ble Supreme Court opined that prosecution had failed to prove the fact that relations of the deceased and the appellant were strained or the appellant was indulged in illicit relation. The court also found difficult to believe the theory of last seen as the time gap between such last seen and finding of the dead body had been of 2-3 days.

40.8 Applying the ratio of Gargi's case (discussed supra) to the present case, prosecution has proved the fact that deceased was last seen alive in the room shared by accused Aruna and the next morning deceased was found dead. Therefore, there is no time gap between last seen alive and recovery of dead body. Prosecution has proved with the help of CDR of both accused persons that they were in an illicit relation. The contents of CDR finds corroboration with the oral testimonies of PW4, PW5 and PW6. It is proved by the prosecution that accused Aruna left the home on 18.11.2016 without informing anyone and stayed for 2-3 days in the company of co-accused Sanjeev Paswan. Later on she was brought to her matrimonial home by her relatives. Therefore, the strained relations of deceased and co-accused have been duly proved. Hence, with all respect to Hon'ble Supreme Court, the facts of Gargi's case are not identical to the present case and hence, Gargi's case is being differentiated on the basis of facts and found not applicable to the present case.

40.9 Ld. counsel has also relied upon case titled as Nagender Sah Vs. State of Bihar Criminal Appeal No. 1902/2019 decided on 14.09.2021 by Hon'ble Supreme Court. In this case accused was convicted by the trial court under section 302/201 IPC and the conviction was upheld by Hon'ble High Court. The matter went in appeal and the appeal was allowed on the ground SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 58 of 64 State Vs. Aruna & Anr.

that prosecution could not prove evidence qua strained relationship of deceased and appellant. It was also observed that appellant was not the only person residing in the house where the incident took place as parents of the appellant were also present in the said house. It was held that presence of other family members shows that there could be another hypothesis which cannot be altogether excluded.

40.10 Applying the ratio of Nagender Sah's case to the present case, prosecution has successfully proved the fact to the oral testimonies of PW4, PW5 and PW6 that relationship between deceased and accused Aruna were bitter and strained one. Accused Aruna used to call co-accused Sanjeev on more or less daily basis and used to have long conversation with him. On 06.04.2017, accused Aruna extended threats to the deceased to kill him, if divorce was not given to her. As far as presence of other persons in the house is concerned, there was no motive available to any of them to murder Nathuni. Accused could have disclosed the motive to shift the burden on some other member but she has failed to do so. The only suspicion as a defence which has been raised by accused Aruna on PW5 Deepak is that he had an altercation with the deceased one month prior to his death on the pretext of purchasing of a motorcycle, is also found to be not supported by credible evidence. After giving suggestion to PW4 and PW5, no evidence has been led in this regard by accused Aruna. Even the date and time of the said altercation have not been mentioned by accused Aruna. It is argued that deceased was strangulated by PW4 and PW5 between 07:30 -11:30 AM on 07.04.2017. Had it been the case, PW5 should not have insisted for the postmortem of the deceased to find out the real cause of death. On the other hand, accused Aruna refused for the postmortem. Therefore, no other family member had the motive to commit the SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 59 of 64 State Vs. Aruna & Anr.

murder of deceased and none of them entered into the room of the deceased on that fateful night. Accused Aruna and DW1 have not stated so that anyone else entered into their room that night. Hence, presence of other family members in the house is immaterial and has no bearing on the merits of this case. Therefore, Nagender Sah's judgment is being differentiated on the basis of facts and hence, not applicable to the present case.

40.11 Applying the ratio of Sharad Birdhichand Sarda's case (discussed supra) to the present case, deceased was lastly seen alive in the company of accused Aruna and her kids. No explanation has been given by her as to how deceased expired in her room that night because she was the best person to answer the same as she was talking to co-accused Sanjeev till 01:40 AM and the time of death of deceased is approximately 11:00 PM-01:00 AM. If she has not committed the murder then the onus was on her to explain the special circumstances exclusively within her knowledge which resulted into the death of the deceased. She has not divulged the special circumstances and hence, an adverse presumption shall be drawn against her under section 106 Indian Evidence Act.

40.12 In Sharda Birdhichand Sarda's case (discussed supra), it has been held that a false explanation or false plea taken by the accused can be used as an additional link in the chain of circumstantial evidence subject to the satisfaction of the essential conditions namely

1.) various link in the chain of evidence led by the prosecution have been satisfactorily proved.

2.) the said circumstance points to the guilt of the accused with reasonable definiteness SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 60 of 64 State Vs. Aruna & Anr.

3.) circumstance is in proximity to the time and situation.

In Deonandan Mishra Vs. State of Bihar 1955 2 SCR 570, the Hon'ble Supreme Court held as under:

"9....It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case like tis where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain."

40.13 It has been duly proved by prosecution and also admitted by accused Aruna that deceased slept in the same room with the accused. He was found dead in the same room by the other family members. The cause of death is asphyxia due to strangulation. During the postmortem, partially digested rice was observed by the board of doctors which is suggestive of the fact that he expired within 3-4 hours after having his dinner. Accused Aruna was awake till 01:40 AM and there is no sign of any forcible entry of any stranger or any other family member. No commotion was heard by any of the family member including kids of accused Aruna. Accused Aruna was having an extra marital affair with co-accused Sanjeev. Accused Sanjeev called in the morning of 06.04.2017 on the mobile phone of accused Aruna which resulted into a quarrel between the deceased and accused Aruna. During the quarrel she extended threat to the deceased to kill him and the threat was duly heard by other persons present in the family. PW4, PW5 and PW6 have testified qua the occurrence of quarrel and extension of threat by accused Aruna. This was the SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 61 of 64 State Vs. Aruna & Anr.

motive for both of them to commit murder of the deceased. No explanation has been given by accused Aruna as to how deceased expired on that night and she has given an explanation for talking to co-accused Sanjeev till 01:32 AM which is found to be false and without any iota of truth in it. Therefore, the chain of circumstances as enumerated in Sharda Birdhichand Sarda's case (discussed supra) is complete and only one hypothesis is possible that accused Aruna committed murder of deceased by strangulating him in furtherance of criminal conspiracy hatched by her with accused Sanjeev.

ALLEGATIONS UNDER SECTION 174-A(II) IPC AGAINST ACCUSED SANJEEV PASWAN

41. It is a matter of record that after registration of FIR, accused Sanjeev absconded and was declared proclaimed offender by the court. Prosecution has examined PW19 ASI Bijender Singh, who executed the process under section 82 CrPC on the last known address of accused Sanjeev Paswan. The report on process under section 82 CrPC has been duly proved as Ex. PW19/C. There is no suggestion on behalf of accused that he was not residing at the place where the NBWs were issued against him and thereafter, process under section 82 CrPC was duly executed. As per section 82 (4) CrPC where proclamation is issued against an accused in relation to an offence under section 302 IPC when the court may pronounce him an offender and accordingly, accused Sanjeev was declared as proclaimed offender by the court. If an accused fails to appear pursuant to proclamation under section 82 CrPC then such a conduct is punishable under section 174-A IPC. If the declaration of proclaimed offender is being done under section 82 (4) CrPC then it is made punishable for a term which may extend to 7 years. Conduct of the accused Sanjeev Paswan in absconding and consequently declared him as a SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 62 of 64 State Vs. Aruna & Anr.

proclaimed offender in terms of section 82 (4) CrPC is squarely covered as punishable offence under section 174-A (II) IPC. Prosecution has successfully proved its case against accused Sanjeev Paswan under this section.

ALLEGATIONS UNDER SECTION 201 IPC AGAINST ACCUSED ARUNA

42. Prosecution has examined PW4, PW5 and PW6 as material witnesses in this case and they have thoroughly supported the case of prosecution. It is deposed by all of them that in the morning of 07.04.2017 when they reached in the room of the deceased, accused Aruna was found cleaning the blood oozing out from the nostrils of the deceased. There is no suggestion to any of the witness on behalf of accused Aruna that she was not doing so on 07.04.2017. The blood which was coming out from the nostrils of the deceased could have been helpful as an evidence to find out the cause of death. Although, cause of death has been duly proved by prosecution by way of postmortem report but accused Aruna tried her best to conceal the unnatural death of the deceased and she caused destruction of evidence by cleaning the blood from the nostrils of the deceased. Therefore, allegations under section 201 IPC stands duly proved against her.

CONCLUSION

43. Thus, in view of the aforesaid findings, I am of the view the prosecution has successfully proved its case to the fact that both accused persons were involved in an extra marital affair which was being objected to by deceased Nathuni Paswan. They entered into a criminal conspiracy to eliminate the deceased. Accused Sanjeev Paswan did not physically SC No. 345/17, FIR No. 68/17, PS Defence Colony Page No. 63 of 64 State Vs. Aruna & Anr.

participated in the commission of crime but he played an important role in the same whereas accused Aruna committed the murder of her husband by strangulating him with the help of a gamcha on the intervening night of 06- 07.04.2017. The death of the deceased was unnatural one and caused due to asphyxia due to strangulation. The cause of death has been duly proved by way of postmortem report and accused Aruna has failed to give an explanation as to how the deceased expired in the room which was shared by the accused Aruna with him. The previous and subsequent conduct of both the accused persons have been duly proved by the prosecution by way of oral testimonies of PW4, PW5 and PW6 and their call detail records. It is proved that accused Aruna caused destruction of evidence by wiping of the blood which was oozing out from the nostrils of the deceased. Hence, accused Aruna is convicted for committing offences under section 302/201/120-B IPC and accused Sanjeev Paswan is convicted for committing offences under section 302/120-B/174-A (II) IPC.

44. Matter be listed for arguments on sentence after compliance in terms of Karan Vs. State of NCT Delhi Crl. A 352/2020.

                                                                          Digitally signed by
                                                           DHIRENDRA DHIRENDRA RANA
                                                           RANA      Date: 2023.02.03
                                                                     16:49:35 +0530
Dictated and announced in the open                         (Dhirendra Rana)
Court on 03.02.2023                                   Addl. Session Judge-FTC-02
(running in 64 pages)                             (South East), Saket Courts/Delhi




SC No. 345/17, FIR No. 68/17, PS Defence Colony                       Page No. 64 of 64
State Vs. Aruna & Anr.