Delhi District Court
Veera Reddy vs . State Of Andhra Pradesh & Ors. Air 1990 ... on 15 February, 2012
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
S. C. No. 38/08
FIR No. 62/2008
PS Parsad Nagar
Under Section 302 IPC
In the matter of:
State
Versus
Sanjay Kumar Dass
S/o Dasho Dass,
R/o Vill. Kudar, Post Office Dhargulai,
PS Bagodar, Teh. & Distt. Girdih,
Jharkhand. ......Accused
Date of Institution : 05.08.2008
Date of Judgment : 15.02.2012
J U D G M E N T
Sanjay Kumar Dass (accused), has been facing trial for an offence U/s 302 IPC, on the accusation that on 04.04.08, in a room on second floor of H.No.16/1684E, Arya Samaj Road, Bapa Nagar, Karol Bagh, Delhi, he did commit murder of Smt. Sunita (wife of PW18 Shankar Dass) FIR No.62/08 1 aged about 20 years, by strangulating her.
2. Case of prosecution is that in the year 2008, Shankar Dass and his wife Sunita (since deceased) were living together in a room on the second floor of H.No.16/1684E, Arya Samanj Road, Bapa Nagar, Karol Bagh, Delhi. Sanjay Kumar Dass (accused) also from the native village of Shankar Dass i.e. Village Kudar, PO Bagodar, Teh. Girdi, District Jharkhand, was putting up on the first floor of the same building.
Shankar Dass was employed at Hotel Patel Continental in the area of East Patel Nagar. He used to leave for his office at 9.00 a.m. On 04.04.08, Shankar Dass left for the place of work at about 9.00 a.m. In the evening, when he returned to his room at about 9.30 he found all the lights outside and inside the room lying switched off. He pushed the only door of the room, entered the room, switched on the lights and found Sanjay Kumar Dass (accused) lying by the right side of his wife Sunita (since deceased). On seeing him, accused ran away. At that time, Shankar Dass noticed blood on the shirt and neck of the accused.
Shankar Dass thought as if his wife Sunita was sleeping. He tried to wake her up and then found that there was no movement in her body.
In the room, Shankar Dass also found broken pieces of bangles, broken ear rings of his wife, one blood stained knife and one blood stained handkerchief. He also observed injury marks on the neck of his wife.
FIR No.62/08 2
Shankar Dass raised alarm, which attracted from first floor, other persons who were also from the same district. He removed his wife to the ground floor, with the help of Anil Dass and Rohit and ultimately removed her to Sir Ganga Ram Hospital, where she was declared brought dead.
Present case came to be registered on the statement made by Shankar Dass before police on 05.08.08 at about 3.00 a.m. In his statement Shankar Dass told the police that for the last many days the accused used to tease his wife and keep an evil eye on her and that she had apprised him of this fact on 03.04.08 i.e. only a day prior to the occurrence.
Inspector Ram Krishan Yadav accompanied by SI Satyabir Singh and Shankar Dass reached the spot. They found broken bangles, ear rings, blood stained handkerchief lying in the room. Crime team was called to the spot. SI Anil Kumar of Crime Team reached there, inspected the scene of crime & prepared report. Ct. Dinesh, member of the team took snaps of the scene of crime. SI Mahesh Kumar, Draughtsman, visited the spot, inspected it and prepared scaled site plan.
Case of the prosecution is that on 04.04.08 at about 10.00 p.m. the accused went to Paras Dass at his hotel Kingston, Prasad Nagar, where he was employed. The accused was having blood on his neck and shirt. On inquiry made by Paras Dass, accused disclosed that he had cut his neck FIR No.62/08 3 and killed Sunita (since deceased) by strangulating her. Paras Dass asked the accused to stand and wait as he would be back in short time. However, when he came back after having informed his employer, he found that the accused had already left.
On 05.04.08 at 3.20 a.m., PW Shiv Shankar is alleged to have seen the accused going towards H.No.E16/1684, while bleeding from front side of his neck and having blood stains on his shirt. He told SI Satyabir Singh to have seen the accused running away towards Shiv Temple, on Arya Samaj Road. SI chased the accused and succeeded in nabbing the accused near the temple in presence of Shiv Shankar Dass and Ct. Rupender.
The accused was sent to Lady Hardinge Hospital in the company of Ct. Rupender for medical examination with direction to preserve nail clippings, pubic hair, undergarments, blood samples and shirt.
Inspector Manoj Pant accompanied by Ct. Naveen reached the spot on assignment of investigation of this case. From the spot, Inspector Manoj Pant picked up one blood stained knife, turned the same into a parcel, sealed it with the seal bearing impression MP and seized the parcel.
Inspector Manoj Pant also picked up pieces of red bangles from near the chokhat of the room on the second floor. He also found one jhumka of golden colour and topes belonging to Sunita (since deceased) FIR No.62/08 4 lying there. Having came to know that the accused had been apprehended and sent to Lady Hardinge Hospital for medical examination, Inspector Manoj Pant reached at Sir Ganga Ram Hospital and collected MLC no. 14661 of the deceased and another MLC no.14670 pertaining to the accused.
Inspector Manoj Pant handed over to Ct. Rambir five sealed parcels and sample seal containing exhibits, arrested the accused and conducted personal search and on return to police station deposited the case property with MHC(M).
Inspector Manoj Pant went to mortuary accompanied by Ct. Vinod and got the dead body subjected to autopsy. On 06.04.08, Shankar Dass identified the dead body of his wife in the mortuary of Maulana Azad Medical College and after the autopsy, he collected the dead body. On 10.04.08, on the directions of SHO, HC Vinod reached mortuary of Maulana Azad Medical College and collected viscera of Smt. Sunita and handed over the same to Inspector Manoj Pant.
On 29.05.08 PW10 Ct. Neeraj collected one sealed parcel contained viscera, one copy of postmorterm examination report and sample seal from the MHC(M) and deposited the same at FSL, Rohini. On 30.05.08 MHC(M) handed over 11 sealed parcels and three sample seals to Ct. Anil Kumar who in turn deposited the same at FSL, Rohini with seals intact.
On completion of investigation, challan was put in Court. FIR No.62/08 5 Copies of documents relied upon by the prosecution were supplied to the accused free of costs as required U/s 207 Cr.P.C. Thereafter, case came to be committed to the Hon'ble Court of Session, as provided U/s 209 Cr.P.C.
Charge
3. Prima facie case having been made out, charge for an offence U/s 302 IPC was framed against the accused on 28.08.2008.
Since the accused pleaded "not guilty" and claimed trial, prosecution was called upon to lead evidence.
Prosecution evidence
4. In order to prove its case, prosecution examined following 24 witnesses: PW1 Anil Dass Who reached the place of occurrence on 04.04.08 at 9.30 p.m. on hearing alarm raised by PW Shankar Dass and found Sunita lying dead on the floor.
PW2 Surender Dass Who reached the place of occurrence on 04.04.08 at 9.30 p.m. on hearing alarm raised by PW Shankar Dass and found Sunita lying dead on the floor.
PW3 Paras Dass To prove extra judicial confession made by the accused before him on 04.04.08 at about 10.30 p.m. at hotel Kingston at Patel Nagar, where this witness was present on duty and also to prove his own visit to the spot thereafter and then to Sir Ganga Ram Hospital.
FIR No.62/08 6 PW4 Dr. Mithilesh To prove MLC Ex.PW4/A to the effect that Kumar Sunita was declared 'brought dead' at Sir Ganga Ram Hospital PW5 Dr. Vijay Dhankar To prove postmorterm examination report Ex.PW5/A prepared on conducting the autopsy on dead body of Sunita PW6 HC Suresh Kumar, To prove recording of FIR Ex.PW6/A. concerned Duty Officer PW7 Raman Kumar To prove factum of employment of Shankar Mishra Dass/husband of Sunita at hotel Patel Continental, as a supporting staff.
PW8 HC Vinod Who collected sealed parcel containing viscera of Sunita.
PW9 Ct. Anil Kumar Who deposited 14 sealed parcels at FSL for analysis PW10 Ct. Neeraj To prove deposit of sealed parcel containing viscera, a copy of autopsy report and sample seal at FSL on 29.05.08.
PW11 Ct. Rupender To prove arrest of accused on 05.04.08 and Kumar his medicolegal examination.
PW12 Shiv Shankar Dass Who was also putting up as a tenant in one of the rooms on the first floor i.e. where place of occurrence is situated; and also to prove conduct of the accused and his arrest.
PW13 SI Anil Kumar To prove crime team report Ex.PW13/A. PW14 SI Mahesh Kumar To prove scaled site plan Ex.PW14/A PW15 Inspector Ram To prove investigation part of the Kishan prosecution version PW16 Ct. Rajesh Kumar, To prove deposit of sealed parcels with him, concerned MHC(M) and dispatch of sealed parcels to FSL. PW17 Ct. Dinesh Kumar, To prove negatives and photographs. member of Crime Team PW18 Shankar Dass Complainant - Husband of Sunita (deceased).
PW19 SI Satyabir Singh To prove investigation part of the prosecution story.
FIR No.62/08 7 PW20 Inspector Manoj To prove investigation part of the Pant prosecution story.
PW21 Naresh Kumar, Sr. To prove reports Ex.PW21/A and Scientific Assistant Ex.PW21/B. (Biology) PW22 Ct. Ranvir Singh Who collected sealed parcels from the doctor of Lady Hardinge Hospital on 05.04.08 and deposited the same with IO.
PW23 Dr. Rajiv Sharma Ultimately given up
PW24 Dr. H.R. Singh To prove MLC Ex.PW24/A and
Ex.PW24/B, in respect of medical
examination of the accused.
Statement of accused
5. When examined under Section 313 Cr.P.C, the accused admitted that in the year 2008 he was residing in the room of Sh. Anil Dass of his village, on the first floor of H.No.E16/1684, Arya Samaj Road, Bapa Nagar, Karol Bagh, Delhi; that Paras Dass and Shiv Shankar used to reside on the first floor of the aforesaid house whereas Shankar Dass, S/o Devi Dass and his wife used to reside on the second floor of the aforesaid house; and that in the year 2008 PW18 Shankar Dass was employed in house keeping section of hotel Patel Continental, East Patel Nagar, Delhi.
As regards the allegation of his having run away on the given date, time and place, the plea of the accused is that after occurrence, he remained present in his room, on the first floor from 8.30 p.m. to 9.00 p.m. Defence plea put forth by the accused reads as under : FIR No.62/08 8 "On 04.04.08 at about 8.00 p.m., I went to the room of Shankar Dass PW18. Smt. Sunita, wife of Shankar Dass prepared tea for me and served the same to me. While I was still present there at about 9.00 p.m., Shankar Dass came there. He suspected me and retorted as to why I was keeping evil eye on his wife. Shankar Dass then picked up a knife and inflicted a blow on my neck on the front side. Sunita started saving me. I then ran away from the room and came to my room on the first floor. I did not inflict any injury on the person of Sunita.
The bangles of Smt. Sunita might have got broken when she had tried to save me. The knife may be the one which was used by Shankar Dass for inflicting injury on my neck. I do not know anything about the other items." He denied to have done Smt. Sunita to death.
He is alleged to have learnt about the death of Sunita lateron. Arguments heard. File perused.
Discussion
6. Learned Addl. P.P. has submitted that from the evidence led by the prosecution it stands established that it is the accused who was keeping an evil eye on Smt. Sunita (since deceased) wife of PW18 and that on the day of occurrence he strangulated her resulting in her death, and as such, accused is liable to be convicted for her murder.
On the other hand, Learned Amicus Curiae has submitted that prosecution has failed to establish any of the circumstances so as to prove that it is he who strangulated Smt. Sunita, and as such accused is entitled FIR No.62/08 9 to acquittal.
Admittedly, the accused hails from village Bagodar, District Girdi, Jharkhand and PW18 Shankar Dass also hails from the same village. It is not in dispute that the accused was putting up in a room on the first floor of 16/1684, Arya Samaj Road, Bapa Nagar, Karol Bagh, Delhi. Whereas, Shankar Dass and his wife were putting up in a room on the second floor of the same building. It is also not in dispute that Shankar Dass was employed in house keeping section of hotel Patel Continental, East Patel Nagar, Delhi. Undisputedly, PW1 Anil, PW2 Surender Dass, PW3 Paras Dass and PW12 Shiv Shankar were also putting up on the first floor of the same building.
Deliberations before registration of case Occurrence is alleged to have taken place on 04.04.08 in the room where Shankar Dass and his wife Sunita used to live. Matter was reported to the police by PW18 Shankar Dass at about 3.00 a.m. on the night intervening of 4/5.04.08. Vide statement Ex.PW18/A, this statement was recorded by Inspector Ram Kishan Yadav (PW15). Rukka was dispatched by SI Inspector Ram Kishan Yadav at about 3.00 a.m. and on its basis Ex.PW6/A was recorded at about 3.15 a.m. Information regarding the occurrence first of all reached PS Parsad Nagar from Sir Ganga Ram Hospital regarding arrival of Smt. Sunita, who was declared 'brought dead'. This information reached the police station at 11.23 p.m. FIR No.62/08 10 Ex.PW4/A is the MLC of Sunita prepared at Sir Ganga Ram Hospital. Its perusal would reveal that Sunita was accompanied by her husband at the time she was brought to the hospital i.e. at 9.30 p.m. This goes to show that the occurrence took place sometimes prior to 9.30 p.m. PW19 SI Satyavir accompanied by Ct. Rajesh Kumar reached the hospital at about 11.45 p.m. immediately after receipt of copy of DD No. 40A recorded at 11.20 p.m. It is in the statement of PW19 SI Satyavir Singh that husband of Sunita was present in the hospital. It is also in the statement of PW16 Ct. Rajesh Kumar and PW15 Inspector Ram Kishan that Shankar Dass was present at the hospital when they reached there.
On the other hand it has come in the statement of PW Shankar Dass that his statement was recorded by the police at police station Prasad Nagar. He further stated that he had not gone through his statement recorded by the police.
This version of PW18 Shankar Dass is in contradiction with the statements made by the police officials that statement of the complainant was recorded at the hospital. Surprisingly, PW18 further stated in his cross examination that when his statement was recorded by the police at the police station, accused was in the police station and he was being kept in a separate room. This goes to show that statement of PW 18 Shankar Dass came to be recorded even after arrest of the accused, and as such possibility of concoction of story after due deliberations cannot be ruled FIR No.62/08 11 out.
Case based on circumstantial Evidence
7. In this case, prosecution has relied upon following circumstances:
1. Recovery of broken pieces of bangles and earring of the deceased from the spot by way of evidence of mark of struggle;
2. Injury on his neck self inflicted by the accused;
3. Recovery of blood stained knife from the place of occurrence;
4. Recovery of blood stained clothes of the accused;
5. Medical Evidence;
6. Motive;
7. Extra Judicial Confession;
Evidentiary value of circumstantial evidence
8. The law regarding circumstances evidence is more or less well settled. Hon'ble Apex Court has laid down the following principles :
1. the circumstances from which the conclusion of guilt is to be drawn should be fully 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 conclusive nature and tendency.
FIR No.62/08 12
4. they should exclude every possible hypothesis except the one to be proved and
5. there must be a chain of evidence 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.
Reference in this regard may be made to the decision in Padala Veera Reddy Vs. State of Andhra Pradesh & Ors. AIR 1990 SC 79 and Chenga Reddy & Ors. Vs. State of Andhra Pradesh (1996) 10 SCC
193. Recovery of broken pieces of bangles and earring of the deceased from the spot by way of evidence of mark of struggle
9. Learned Addl. P.P. has referred to the attending circumstances at the scene of crime i.e. like recovery of broken pieces of bangles, ear rings and presence of struggle mark, abrasion marks on the neck in addition to strangulation mark and submitted that in the given circumstances, it can safely be said that the accused "tried to commit rape" on Smt. Sunita but when this attempt was resisted by her, he strangulated her, and in order to create defence, he inflicted injury on his neck.
On the other hand, learned Amicus Curiae submitted that in his statement recorded U/s 313 Cr.P.C. and cross examination of PWs, the FIR No.62/08 13 accused has furnished explanation as to in which circumstances pieces of broken bangles were found lying at the spot, and as such no adverse inference could be drawn against the accused simply because pieces of broken bangles were found lying at the spot.
It is case of prosecution that from the spot small pieces of bangles and one jhumka were found lying at the threshold of the room where the occurrence took place whereas some broken pieces of bangles and tops were found lying spread in the room. All these were seized vide recovery memo Ex PW19/B by Inspector Manoj Pant in presence of SI Satyabir Singh (PW19).
According to PW18, broken bangles and ear rings of his wife were found lying on the floor and the same were taken into possession by the police after the same were turned into parcels. Pieces of broken bangles and piece of tops when produced in Court, were exhibited as Ex P3 (collectively) and Ex P4 respectively.
PW19 SI Satyabir Singh deposed about seizure of the broken bangles, tops, blood stained knife and handkerchief from the spot vide memos Ex PW19/A to Ex PW19/C. According to PW20 Inspector Manoj Pant, one blood stained knife, pieces of bangles, one gold colour ear tops, one ear lobbing (Bundatops), one blood stained white and orange colour clothes were found lying at the spot.
It may be mentioned here that PW18 Shankar Dass has no where stated that some broken pieces of bangles were found lying spread in the house in addition to the pieces of red bangles found lying near threshold of the house i.e. just at the entrance.
FIR No.62/08 14
A perusal of rough site plan Ex PW20/A prepared by Inspector Manoj Pant would reveal that therein he pointed out place 'D' as the place where broken pieces of bangles of deceased were lying and point 'E' as the place where bunda were found lying. In Ex PW20/A, Inspector did not depict that jhumka was recovered from near the threshold and ear lobbing (bundatops) was found lying at some other place, as find mentioned in the recovery memo Ex PW19/B. Even the prosecution witnesses including PW18 Shankar Dass did not specify in their statement that jhumka was recovered from one place i.e. from near threshold and ear lobbing (Bundatops) was recovered from another place. Photographs Ex PW17/A1 to A13 also do not depict that jhumka was found lying at one place and ear lobbing (Bundatops) was lying at some other place.
A perusal of crime team report Ex PW13/A does not reveal that at the place of occurrence SI Anil Kumar observed broken pieces of bangles, jhumka and ear lobbing (Bundatops).
From the above material available on record, this Court finds that there is discrepancy in the statements of witnesses regarding the place of recovery of broken pieces of bangles, one jhumka, broken pieces and lobbing (bundatops) so as to suggest marks of struggle at the time of occurrence.
As to what PW18 Shankar Dass observed on entering the room
10. Learned Addl. P.P. submitted that PW18 denied the suggestion that on seeing his wife in compromising position with the accused he got provoked or that he rushed towards the accused with knife. Learned Addl. P.P. further submitted that simply because PW18 admitted in his FIR No.62/08 15 cross examination that the accused was found lying at a distance of one feet from the body of his wife, it cannot be said that the accused and his wife were in compromising position.
Learned Addl. P.P. submitted that although in cross examination PW18 was questioned about the position of the clothes of the deceased at the time of occurrence, but not even a single question was put about the position of the clothes of the accused at that time, which demolishes the plea that the accused was in compromising position with the deceased.
Sh. Vikas Padora, learned Amicus Curiae has contended that from the plea of the accused is that on the given date he and the deceased (wife of PW18 Shankar Dass) were seen by PW18 - her husband in the compromising position in her room, which provoked PW18, as a result he (PW18) inflicted injury on his neck; and when his wife intervened, PW18 did commit her murder.
In this regard, learned Amicus Curiae has referred to what has come in the cross examination of PW18. Then, reference has been made to the cross examination of PW18, wherein he admitted to have seen the accused lying adjacent to the body of his wife i.e. on her right side, only at one feet distance from her, which fact according to learned Amicus Curiae supports defence plea referred to above.
Learned Amicus Curiae has further submitted that according to PW18, at the time, he entered the room, it was not found bolted from FIR No.62/08 16 inside, but it was lying closed and that the lights in the room were lying switched off. The contention is that had the accused gone to kill Smt. Sunita, there was no need for the accused to switch off the lights and lie by her side or stay there even for a minute.
Reference has been made to the cross examination of PW18, wherein he admitted that there is only one door to enter the room where the occurrence took place. The contention raised by learned Amicus Curiae is that in the given situation the accused could not run away from the spot from the only door, when PW18 had reached there.
Learned Amicus Curiae has referred to the report of FSL and submitted that on analysis of the contents of sample, spots of semen were detected on the underwear of the accused and also on the vaginal swab of the deceased. The contention raised by learned Amicus Curiae is that all this lends corroboration to the defence plea that the accused was in compromising position with Smt. Sunita on the given date, time and place. Further, it has been submitted that when they were in compromising position, there was no question of the accused killing Smt. Sunita.
On the other hand learned Addl. P.P. has submitted that detection of semen by the expert on the sample on the exhibits sent for analysis does not adversely affect the prosecution case in the given facts and circumstance.
It has further been submitted that when at the place of occurrence FIR No.62/08 17 only the accused and Smt. Sunita (since deceased) were present and the accused was seen running away from the said room by PW18 (husband of Smt. Sunita) it is a strong circumstance to suggest that it is the accused who did commit crime.
According to PW18 on 04.04.2008 when he returned home from his duty at about 9.30 pm and entered the room on the second floor, he found all the lights off, pushed the door, opened it, switched on the lights and then found the accused lying on the right side of his wife.
Further according to PW 18, he also observed blood on the neck and shirt of the accused. One blood stained handkerchief and one blood stained knife were also lying on the floor of the room, as further stated by him.
From the aforesaid statement of PW18, it appears to be his version that accused was lying on the right side of his wife with blood on his neck and shirt. So, according to PW18, the accused had suffered injury on his neck even prior to the witness entered the room. PW18 did not state anywhere that the accused inflicted injury on his neck in his presence or on having seen him entering the house.
It is not believable that a person having injury measuring 8 cm x 1 cm in front of the neck with blood coming out of his neck and stains on his shirt would continue to lie by the side of a lady.
Instead of selfsuffering injury on his neck even prior to the arrival of PW18, accused would have preferred to run away from the spot.
In his cross examination PW18 stated that when he saw the accused, he had one handkerchief tied around his neck. He reiterated that accused was FIR No.62/08 18 found sleeping by the side of his wife with injuries on his neck.
It is significant to note that PW18 in his statement Ex PW18/A made before the police did not state that there was a handkerchief tried around the neck of the accused while he was lying by the side of his wife. Therein he stated that a blood stained handkerchief was found lying on the floor of the house. Even in examination in chief of his statement made in Court, PW18 nowhere stated to have seen accused having handkerchief around his neck. For the first time, only in his cross examination, he stated that accused was seen having one handkerchief tied around his neck. There is no explanation as to why the witness did not state so in his statement made before police or in his examination in chief.
Even otherwise, according to PW18, blood stained handkerchief was found lying on the floor. According to prosecution witnesses, one blood stained handkerchief was recovered from the spot.
Even if it is assumed for the sake of arguments that the accused had one handkerchief tied around his neck while he was lying by the side of wife of PW18, it remains unexplained as to how blood stained knife was recovered from inside the house. When the accused ran away from the spot on seeing PW18 entering the room, there was no occasion for the accused to leave behind the blood stained handkerchief as he would have required the same to prevent oozing out of blood.
In the given circumstances, recovery of blood stained handkerchief from the inside of the house again creates doubt in the version of prosecution that the accused was lying by the side of the wife of PW18 with injury on his neck. FIR No.62/08 19
It is case of the prosecution that Smt. Sunitawife of PW18 Shankar Dass was found lying on the floor when PW18 entered the room. According to PW18, when accused ran away on seeing him, he tried to wake up his wife but there was no movement in the body. It is not case of prosecution or that of PW18 Shankar Dass that accused strangulated Smt. Sunita within in view of (PW18). In his cross examination, PW18 admitted to have not seen the accused killing his wife. From the above statement of PW18, it would transpire that the accused did not cause any injury on the person of Smt. Sunita Devi or killed her within the view of PW18.
A perusal of MLC Ex PW4/A would reveal that she was brought dead. According to PW18, his wife was lying inside the house without any movement in the body and the accused was lying by her side with injury on his neck. But it is difficult to believe that any person would sleep by the side of a lady in whose body there was no movement or say, who was dead.
At the time Smt. Sunita was brought to the hospital, her husband gave brief history that his wife was found lying unconscious at home. At that time PW18 Shankar Dass did not describe to the doctor that actually accused was also found lying by the side of his wife and he had observed marks of injuries on her neck. Had PW18 seen the accused lying by the side of his wife, he would not have simply stated before doctor simply that he had found his wife lying unconscious. Rather, he would have stated that some wrong had been done to her by the accused.
Had the accused strangulated Smt. Sunita manually, there being none else in the house, the accused would have easily managed to escape and not FIR No.62/08 20 opted to lie by her side.
Even otherwise, if it is assumed for the sake of arguments that it is accused who strangulated Smt. Sunita in the given circumstances, it was for the prosecution to explain as to who inflicted injuries on the neck of the accused when there was none else to inflict injury on the person of the accused. Even the accused would have not have self inflicted injury on the neck when he could easily run away after commission of crime. All this creates doubt in the version of prosecution that it is accused who strangulated Smt. Sunita and then inflicted injuries on his neck.
Arrest of the accused
11. It is case of prosecution that accused was arrested on 05.04.2008 at about 6.30am from Lady Harding Hospital College, Delhi. In this regard, prosecution has placed on record arrest memo Ex PW20/C prepared by Inspector Manoj Pant in presence of PW 18 Shankar Dass.
According to PW18 Shankar Dass, after the police inspected the spot, prepared site plan and seized incriminating material from the spot, they went to Lady Harding Hospital where accused was lying admitted and that from there he was arrested. However, in the cross examination, PW18 stated that accused was apprehended by one Shankar and Head Constable of local beat on 04.04.2008 itself at about 11 pm. As per MLC Ex PW24/ A & B, accused was taken to Lady Harding Hospital for the first time at 3.55 am on 05.04.2008.
PW19 SI Stayavir Singh stated that at about 3.20am on hearing FIR No.62/08 21 noise of "PakdoPakdo", he came down from the place of occurrence and learnt from Shiv Shankar Dass PW 12 that accused had fled away towards Shiv Mandir, Arya Samaj Road. Thereupon he chased the accused and was able to catch hold of him near Shiv Mandir.
As further stated by PW19, he sent the accused to Lady Harding Hospital in the company of Ct. Rupender as injury on the neck of the accused was bleeding. It is in his cross examination that he, Ct. Rupender, Surender Das and Shiv Shankar Dass had chased the accused but ultimately he is the one who caught hold of the accused.
PW12 Shiv Shankar Dass has stated that on 05.04.2008 at about 3.20 am he saw the accused coming towards the property. At that time accused was bleeding from his neck. When he called the accused, he stared running away. Further according to PW12, he, Surender and a policeman chased the accused and captured him near Shiv Temple. It may be mentioned here that in his examination in chief, PW12 nowhere stated that it is SI Satyavir Singh who chased the accused and captured him near Shiv Temple. It is only in the cross examination that he stated that SI Satyavir Singh caught hold of the accused.
It is also in the statement of PW12 that no writing work was done at the time the accused was apprehended although he was questioned by SI Satyavir Singh for about ten minutes.
In case, accused was apprehended by SI Satyavir Singh, there is no explanation as to why no writing work was done by the SI regarding FIR No.62/08 22 arrest of accused from near Shiv Temple on Arya Samaj Road and as to why in the arrest memo he was shown to have been arrested from Lady Harding Hospital.
Contrary to it PW18 Shankar Dass stated that accused was apprehended at about 11 am on 04.04.2008 itself by Beat Head Constable and one Shanker. This falsifies version of the prosecution that he was apprehended from near Shiv Temple on Arya Samaj Road by SI Satyabir Singh.
Motive
12. Learned Addl. P.P. has submitted that the accused had a motive to commit the crime. In this regard reference has been made to statement of PW18 wherein he stated that on 03.04.08 his wife told him that the accused had an evil eye on her. Further, it has been submitted that motive part of the prosecution story having not been subjected to any cross examination has gone unchallenged.
On the other hand, learned Amicus Curiae has submitted that a particular suggestion was put to PW1 & 2 who is close relative of PW18 and both of them admitted that they were never told by Shankar Dass that the accused ever teased his wife. Learned Amicus Curiae submitted that even if it has been assumed that accused had ever teased Smt. Sunita, it could be a step towards commission of sexual offence and not a motive for commission of her murder.
FIR No.62/08 23
Case of the prosecution is that on 03.04.08 Smt. Sunita told her husband - PW18 that Sanjay (accused) was teasing her for the last so many days and keeping an evil eye on her.
While appearing in court as PW18, Shankar Dass deposed that prior to the occurrence, on 03.04.08, his wife had told him that accused has having bad eye on her and he also used to tease her. Had Sunita ever so complained to her husband (PW18) against the accused on 03.04.08, PW18 would not have kept mum. Rather, he would have taken the accused to task and also reported the matter to covillagers who were putting up in the same building or to the police. However, there is nothing on record to suggest that PW18 reported the matter to the police on 03.04.08 when he was informed by his wife about having been teased by the accused.
PW1 Sh. Anil Dass was also putting up on the first floor. According to him, accused used to reside with him in his room. He nowhere stated that PW18 Shankar Dass ever told him that his wife was being teased by the accused. PW1 Anil Dass is also from the native village of PW18 Shankar Dass and that of the accused. It is in cross examination of PW1 Anil Dass that Shankar Dass never told him that Sanjay (accused) has ever teased his wife.
PW2 Surender Dass brother of Anil Dass is also from the native village of PW18 Shankar Dass and that of the accused. He too was FIR No.62/08 24 putting up on the first floor. He nowhere stated that Shankar Dass ever apprised them that accused was having an evil eye on his wife.
PW3 Paras Dass was also putting up on the first floor of the same building. He too nowhere stated that PW18 Shankar Dass ever complained against the accused that he was teasing his wife.
In view of the aforesaid evidence of PWs 1 to 3, who are from the native village of PW18 and that of the accused, it does not stand established that wife of PW18 was ever teased by the accused or that on 03.04.08, she complained to her husband against the accused in this regard.
Even otherwise, had the accused been keeping an evil eye on Sunita, on the day of occurrence i.e. 04.04.08 he would have visited her room either to molest her or to commit rape on her. However, the prosecution has come up with the version that the accused did commit murder of Sunita by strangulating her. There are discrepancies in the statements of prosecution witnesses regarding the place(s), from where the broken pieces of bangles are alleged to have been recovered and also regarding recovery of one jhumka and ear lobing (bunda), as discussed above.
Had the accused visited the room of Sunita to molest her or to commit rape on her, she would have raised hue and cry and attracted persons who were putting up on the first floor and ground floor of the FIR No.62/08 25 same building. A perusal of site plan Ex.PW20/A would reveal that there was a window in northwest direction of the room. Sunita would have gone to the window and raised hue and cry. However, there is nothing in the statements of PW1, PW2 and PW3 to suggest that they heard any hue and cry from the room of Sunita, prior to the cry raised by her husband PW18 Shankar Dass.
Case of the prosecution is that when the crime team visited the spot, its members found one glass (tea), and one glass (empty). However PW18 Shankar Dass denied in his cross examination to have seen any tea glass lying on the floor by the side of his wife. This goes to show that PW18 has told lie regarding presence of tea glass to conceal true facts.
MLC Ex.PW4/A of the deceased would reveal that the doctor who recorded gynae notes on medicolegal examination of the deceased, observed no external injury mark on the person of abdomen, thigh and other parts of the dead body. This goes to show that there was no sign of violence used against Sunita. As regards the mark of strangulation on her neck, prosecution has not been able to establish that it is the accused who strangulated her.
A perusal of FSL report Ex.PW21/A and Ex.PW21/B would reveal that stains of semen were observed on exhibits 7, 10 and 11 i.e. one underwear, broken micro slides having faint smear and to cotton wool swabs of the deceased. Blood of 'O' group i.e. of the accused was found FIR No.62/08 26 on analysis of stains of semen observed on his underwear. It is in the cross examination of PW18 that when he entered the room,he found lower part of the saree of his wife was upto her knees. He further stated that clothes of his wife were not in torn condition. All this probablises the defence plea.
Extra Judicial Confession
13. Case of prosecution is that on 04.04.08 at about 10.30 p.m., accused went to PW3 Paras Dass and made extra judicial confession before him regarding commission of murder of Sunita.
Learned Addl. P.P. has referred to the statement of PW3 Paras Dass to whom the accused went and made extra judicial confession regarding strangulation of Smt. Sunita and the injury on his neck. Therefore, contention is that prosecution has been able to establish that the accused self inflicted this injury on his neck.
On the other hand, learned Amicus Curiae has submitted that there was no occasion for the accused to go to Paras Dass to make any such extra judicial confession and as such no reliance can be placed on this piece of evidence led by the prosecution.
According to PW3 Paras Dass on 04.04.08 at about 10.30 p.m. he was present on duty at hotel Kingston in Patel Nagar, Delhi when Sanjay Kumar Dass (accused) came to him. At that time, he noticed blood on the neck and shirt of the accused. According to witness when he inquired FIR No.62/08 27 about blood, the accused told him to have cut his neck and also killed Sunita by strangulating her. Further according to witness, he did not believe the version of the accused and as such asked him to stand and wait for him for some time. But when he came back, after having informed his employer, the accused was found to have already left.
It is case of the prosecution that during the days of occurrence accused was putting up in the room of PW1 Anil Dass. PW2 Surender Dass was also putting up there with his brother Anil Dass (PW1). PWs Anil Das and Surender Dass were present in their room on the night of occurrence. In case, the accused was to make any such extra judicial confession, he would have preferred to go to his roommates instead of going to PW3 Paras Dass, who was away to his duty at Kingston Hotel.
Since as per version of the prosecution there was blood on the neck and shirt of the accused, it is difficult to believe that even for this reason the accused would have preferred to go to the place of work of Paras Dass, so as to conceal his presence.
Even otherwise, if it is assumed for the sake of argument that accused went to PW3 Paras Dass to confide the criminal act attributed to him, he would have stayed there to have his help in his surrender before the police. But PW3 wants the court to believe that the accused, even after having disclosed to him his involvement in strangulating Sunita, left the hotel although he was asked to wait for sometime. This creates doubt FIR No.62/08 28 in the version of the prosecution that the accused would have gone to PW Paras Dass and confessed his guilt.
Had the accused gone to PW Paras Dass to confess his guilt but run away from there, PW3 must have informed the police or Shankar Dass on the same night soon after his return to the house. However, in his cross examination, PW3 admitted to have not informed the police about the disclosure made by the accused. According to PW3, he directly reached the house. There is no explanation as to why did he not inform the police about this fact particularly when the police was in search of the accused by then. He even did not inform Shankar Dass about this fact on having reached his house. Therefore, it becomes doubtful if the accused went to hotel and made extra judicial confession regarding this crime.
Injuries on the person of the accused - Explanation thereof
14. Learned Amicus Curiae has submitted that there was injury on the neck of the accused but the prosecution has failed to explain this injury which creates doubt in the case of prosecution, when there is no evidence to suggest that the accused selfinflicted this injury on his neck.
Learned Amicus Curiae has submitted that had the accused inflicted injury on his neck, firstly be would have taken away knife instead of leaving it behind and secondly, it must have been found bearing fingerprints of the accused, but the knife recovered from the spot does not bear finger print of accused, which further demolishes case of prosecution FIR No.62/08 29 that the accused self inflicted the injury on his neck.
Learned Addl. P.P. has further submitted that the accused did not inform the PCR staff or any other authority about the injury alleged to have been inflicted on his person by PW18 and as such it is difficult to believe the defence plea regarding the manner in which the occurrence took place, particularly when the accused was apprehended at 6.30 a.m. on 05.04.08.
Material available on record would reveal that the accused was got medicolegally examined at Lady Hardinge Medical College and Hospital on 05.04.08 twice. One MLC is Ex.PW24/A and the other is Ex.PW24/B. MLC Ex.PW24/A reveals date and time of examination ofthe accused as 5.30 a.m. at the time he was accompanied by Ct. Rupender VS 1045/C. As per other MLC Ex.PW24/B, he was medicolegally examined on the same night at 3.55 a.m. So MLC Ex.PW24/B was prepared first. It is not that time of arrival of the accused in both the MLCs is one and the same. In Ex.PW24/B which was prepared first, the time of arrival of the accused stand recorded as 3.55 a.m. In the second MLC Ex.PW24/A the time of arrival of the accused has been recorded as 5.30 a.m. This goes to show that accused was brought to the hospital twice, firstly on 3.55 a.m. and secondly at 5.30 a.m. But there is no explanation as to why the accused was brought to the hospital twice. There is no explanation as to why two medicolegal reports regarding examination of the accused were prepared FIR No.62/08 30 or say, as to why the accused was got medicolegally examined twice.
A perusal of MLC Ex.PW24/B would reveal that Dr. Ritu Mala observed two LWs - measuring 8 cms., in front of the neck. The injury was declared to be simple in nature, fresh and caused with sharp weapon. In the second MLC Ex.PW24/A prepared by the same doctor - Dr. Ritu Mala. 8 cm X 1cm sutured wound was observed over the mid line - in front of the neck. It is case of prosecution that the accused inflicted this injury observed on the neck so as to create defence. On the other hand, accused has come up with the plea that it is PW18 Shankar Dass, husband of Sunita, who inflicted this injury on his neck.
According to PW18 Shankar Dass, when he entered his house, on seeing him, the accused ran away from there. At that time, he saw that there was blood on the neck and shirt of the accused. It is also in his statement that a blood stained knife was recovered from the house of the witness (PW18). In the cross examination of PW18, it was suggested on behalf of the accused that he (PW18) had given a blow on the neck of the accused, after having rushed towards accused with a knife, on seeing the accused and Sunita in compromising position. The witness denied this suggestion.
It is in the statement of the prosecution witnesses that knife Ex.P1 recovered from the spot was found stained with blood. Prosecution has relied on recovery memo ex.PW19/C regarding seizure of the knife from FIR No.62/08 31 the spot. Presence of the knife also finds mention in crime team report Ex.PW13/A. A perusal of crime team report Ex.PW13/A would reveal that no chance print was developed so far as this knife is concerned. Knife Ex.P1 was having handle of plastic and blade of steel. It is case of the prosecution that knife was used on the given date, time and place and recovered from the room. But it remains unexplained as to why chance prints could not be developed from this knife or observed on the knife. Had the accused used the knife in self inflicting the injury on his neck, this knife Ex.P1 must have been bearing fingerprints of the accused. In case, it was used by anyone else then fingerprints of its user could be certainly developed/observed on the knife. The fact remains that prosecution has not been able to establish that the knife Ex.P1 was bearing fingerprints of the accused. This leads to the conclusion that the knife was not used by the accused in inflicting injury on his neck.
How the accused could escape unhurt from the only entrance
15. It is case of the prosecution that the room, where the occurrence took place, has only one entrance. PW18 admitted in his cross examination that there is only one door of the said room. He stated that the accused ran away from the only door. When there was only one door of the said room, where occurrence is alleged to have taken place, it is difficult to believe that PW18 Shankar Dass would have allowed the accused to manage escape unhurt or safely. On seeing blood from the FIR No.62/08 32 neck and on the shirt of the accused, the first priority of PW18 would have been to capture the accused then and there. However, PW18 wants the court to believe that the accused made his good escape from the said room. This testimony of PW18 is not believable. Rather, it appears from the evidence available on record that when the accused was trying to escape from the only door, he was inflicted injury on his neck.
It is well settled that when the burden of the issue is on the prosecution, e.g. the onus of proving guilt, it must prove it beyond a reasonable doubt. It rests throughout on the prosecution and that onus never changes. The burden on the accused to prove his case is not as onerous as that on the prosecution. He has to only prove his case on a preponderance of probabilities as contemplated U/s 105 of Evidence Act. When, the burden of an issue is upon the accused, he only has to satisfy the standard of a "prudent man". He is not in general,called on to prove it beyond a reasonable doubt or in default to incur a verdict of guilty; It is sufficient, if he succeeds in proving a prima facie case, for then the burden of such issue is shifted to the prosecution which has still to discharge its original onus that never shifts i.e. that of establishing, on the whole case, guilt beyond a reasonable doubt. Herein, as discussed above, the defence plea put forth by the accused finds support from the material available on record. The version of the prosecution that the accused strangulated Smt. Sunita and then inflicted injury on his neck does not stand established at FIR No.62/08 33 all.
Conclusion
16. In view of the above discussion, this court comes to the conclusion that prosecution has not been able to establish its case, against the accused, that it is he who strangulated Smt. Sunita and thereby committed her murder on 04.04.08, beyond shadow of reasonable doubt. Extending the benefit of doubt, this court hereby orders for acquittal of the accused in this case.
Case property be disposed of in accordance with rules on expiry of period for appeal/Revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court
on 15.02.2012 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
FIR No.62/08 34