Delhi District Court
Kumar Thapa vs . State Air 2002 S.C. 2920. on 11 September, 2007
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IN THE COURT OF SH. NARINDER KUMAR
ADDL. SESSIONS JUDGE FAST TRACK COURTS
ROHINI DELHI
SC No. 7 dated 18/01/2007
Date of Decision: 11th of September, 2007
State
Versus Accused
1. Prem Singh Chauhan
S/o Sh.Khoob Singh
R/o Flat No. 72, Adarsh Kunj,
Sector-13, Rohini.
2. Shri Nath
S/o Sh. Prem Singh Chauhan
R/o house no. (not known),
Street No. 19, D-Block,
Mukundpur, Delhi.
FIR No. 196/2003
PS S. P. Badli
U/s. 302 & 120-B IPC
JUDGMENT
First the Facts Accused No.1 (accused) is father of his co- accused No.2. Both of them have been facing trial for offences U/s. 120B, 302 read with Section 120B IPC (on two -:2:- counts). Allegations levelled against the accused persons are that both of them entered into criminal conspiracy to commit murder of Sarika and her daughter Tannu, aged about 2 years and in furtherance of their criminal conspiracy, both of them are alleged to have committed murder of Sarika and her daughter Tannu, on 17.04.2003, at the house situated in Street No. 19, D-Block, Mukundpur, Delhi.
Sarika was daughter of Yogender Pal Singh and Chander Kanta (complainant). Yogender Pal Singh is real brother of Accused No.1. Both of them were Advocates.
Case of prosecution is that Sarika (since deceased) was to appear in 10th standard examination and for that purpose Shrinath accused used to visit their house i.e.. H.no. 151-B, Shaheed Bhagat Singh Nagar, Karala, for tuition to be given to Sarika. He her tuition for about 2/2½ months and thereafter in the year 1999 took her away. Accused No.1 went to the house of his brother Yogender Pal Singh and advised him that he (Yogender Pal Singh) should not file any report with the police as it was internal matter. Accused No.1 further assured that after searching his son Shrinath (accused) and Sarika, he would send Sarika back to Yogender Pal Singh.
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Three/four months after Shrinath accused took away Sarika, Accused No.1 visited the house of his brother and told him that he had seen his son Shrinath and Sarika in a vehicle and that the vehicle used to pass daily from Sector- 13, Rohini. Accused No.1 accused advised his brother that an application be filed at Police Station Prashant Vihar. Accused No.1 accordingly prepared application and his brother signed it. He then handed over that application to SI D. C. Meswal, known to him. Three/four months thereafter Accused No.1 went to the house of his brother and informed that the vehicle referred to by him was got stopped but Shrinath (accused) and Sarika were not there in the vehicle.
On 24/04/2003 at about 01:28 p.m., telephonic information was received by Head Ct. Mangat Ram from telephone no. 7614992. Manoj Kumar, the informant, informed the PCR staff that a dead body was lying in the sewer of house of Shrinath accused situated in Street no. 19, Road No.10, Mukundpur. On its basis DD No. 445 was recorded. On the same day, at 01:40 p.m., ASI Prem Singh received information from wireless operator to the effect that a dead body was lying at the house of Shrinath accused situated in Street No.19, Road No. 10, D-Block, Mukundpur. -:4:- On its basis, DD No. 17-A was recorded. SI Dhananjay Gupta accompanied by Ct. Dharambir reached the house of Shrinath accused. Sh. R.P.Gautam, the then SHO, also reached there alongwith his staff. Accused No.1 was also called to the spot. Dead bodies of Sarika, daughter of Yogender Pal Singh and her (Sarika's) daughter were found lying in the septic tank of the house of Shrinath accused. Dead bodies were removed from the septic tank, in presence of Smt. Chanderkanta, mother of the deceased.
On the same day, police came to the house of Yogender Pal Singh and informed that dead body of a female was lying at the house of Shrinath accused whereupon Yogender Pal Singh reached the house. Accused No.1 is stated to have gone to the house of Yogender Pal Singh and told that dead body of Sarika was lying at a house in Village Mukundpur. Smt. Chanderkanta reached the said house and it transpired that Shrinath accused and Sarika were residing there as husband and wife with changed names as Sunil and Sonia respectively for the last about 1-1½ year. One signboard of Accused No.1 was also found lying in front of the gate of the aforesaid house. The dead bodies were removed from the septic tank. Dead bodies were directed to be got -:5:- preserved and removed to Mortuary. Smt. Chanderkanta made statement whereupon ACP R.P. Gautam appended endorsement to the statement, handed over ruqqa to constable Dharambir and got this case registered by ASI Manohar Lal. Ct. Prem Chand took special reports and delivered to senior police officers.
Constable Chunni Lal of Crime Team, North West District, on receipt of a call reached the aforesaid house and found that work of breaking open a tank was under
progress. Foul smell was emanating from that tank. He took photographs of dead bodies while same were lying in the tank, after removal of dead bodies from the tank and also out of room. ACP Sh. R.P. Gautam prepared rough site plan of the place of recovery of dead bodies. Accused No.1 produced before the police chain of lock make VIP and a key, which were taken into possession. The ACP carried out inquest proceedings in respect of dead bodies. Both the dead bodies were removed to the Mortuary of BJRM Hospital.
Dr. B. N. Acharya, conducted autopsy on the dead body of Sonia and submitted report. In the opinion of the doctor, all the injuries were ante mortem in nature and caused by blunt force application on mouth and nose. Death was due -:6:- to pressure over external air passing i.e. mouth and nose smothering as the body was highly decomposed. No duration of death and postmortem examination could be ascertained. He also conducted autopsy on the dead body of Tannu, female, aged 2½ years, and prepared reports. On the same day, after autopsy on the dead bodies, the dead bodies were delivered to the relatives. Sealed parcels containing clothes and bones of the dead bodes were collected by police.
On 26.04.2003, accused No.1 was arrested from his flat No. 72, Adarsh Kunj, Sector-13, Rohini. On 27.04.2003, accused No.1, father of Shrinath accused led the police party to a room on the second floor of H.No. G 526-
527, Jahangir Puri and produced copy of complaint dated 18.02.2000 addressed to SHO, Prashant Vihar. Accused No.1 also produced before the police original birth certificate of Tanya, discharge slips of Sonia regarding her discharge from Hindu Rao Hospital, a ration card and a guarantee card in respect of a sewing machine. These were produced by accused No.1 after opening the lock of his house, after picking up its key from the bathroom, and then seized by the police. The guarantee card was bearing handwritten note at its back. Complainant identified the handwriting to be that of -:7:- his daughter Sarika.
Tanya, female child, was born to Shrinath accused and Sonia (since deceased) on 13.10.2000. In this respect, Shrinath informed the office of Sub Registrar, Civil Lines, on 19.04.2001. The factum of birth of female child was registered.
A joint application in form 10 was submitted by Sonia (Since deceased) in the capacity of prospective donor and Praveen Garg in the capacity of prospective recipient for transplantation of kidney. Alongwith this application, affidavit was submitted by Praveen Garg and Sonia (since deceased) as well. Shrinath accused in the capacity of close relative of donor also filed affidavit to the effect that he had no objection to the donation of kidney by his wife Smt. Sonia to Praveen Garg. Request for transplantation of kidney was approved by the authorization committee after personal interaction with the donor, donee and their respective husband.
Case of prosecution is that Jitender Kumar, owner of house no. D-19, Mukundpur, sold his plot measuring 33 square yards to Sonia Chauhan for a sum of Rs.20,000/- (twenty thousand only). In this respect, power of attorney was executed by Jitender Kumar in her favour. The document -:8:- was got registered.
Shrinath accused surrendered before the Court. SI Dhananjay Gupta interrogated and arrested him. He made disclosure statement and in pursuance thereof he led the police party headed by SI Dhananjay Gupta to his house and got recovered photographs of his family, which were seized.
SI Manohar Lal reached street No. 19, D-Block, Mukundpur, took rough notes and measurements at the pointing out of Neelam and on the basis of rough notes, prepared scaled site plan.
On 16.07.2003, Shrinath, Yogender Pal Singh and Chanderkanta were produced before Dr. Harish Gupta, who took sample of their blood in separate parcels.
On 06.07.2007, ASI Ashok Kumar collected two sealed parcels containing bones , sample seal of BJRM Hospital and priority letter, vide RC and deposited the same at CDFD, Hyderabad. On 17.07.2003, ASI Ashok Kumar again took three sealed parcels and the sample seal of BJRM hospital, vide RC, deposited the same on 21.07.2003. Sh. S. P. R. Prasad, Senior Technical Examiner, Laboratory of DNA Finger Printing and Diagnostics Centre, Hyderabad, submitted -:9:- report that on 09.07.2003. One of the parcels was containing bone of Tannu whereas the other parcel was containing bone of Sarika @ Sonia. On analysis of the bone and blood samples for DNA test, report of analysis prepared by Sh. S. P. R. Prasad, Senior Technical Examiner, was forwarded by Dr. Syed E. Hasnain, Director of DNA Finger Printing and Diagnostic Centre, Hyderabad to Additional DCP.
On completion of investigation, challan was put in court. After copies of documents relied upon by the prosecution were supplied to the accused persons as provided U/s. 207 CrPC, case came to be committed to Hon'ble Court of Session.
Prima facie case having been made out against both the accused vide order dated 20.09.2004, charge for offences U/s. 120B, 302 read with Section 120B(on two counts) was ordered to be framed against them. Since the accused persons pleaded not guilty and claimed trial, prosecution was called upon to lead evidence.
In order to prove its case, prosecution examined following 33 witnesses:
PW2 Yogender Pal Singh is father and PW3 Smt. Chanderkanta-complainant is mother of Sarika (since -:10:- deceased).
Medical evidence is available in the statements of PW5 Dr. B.N. Acharya, PW15 Dr. Harish Gupta, PW11 Sh. Prem Nath Malhotra, Senior Medical Record Officer, who has been examined to prove handwriting and signatures of Dr. Nalini Kaul of Sir Ganga Ram Hospital of the record regarding transplantation of kidney in case of Praveen Garg, the recepient and Smt. Sonia, the donor.
Dr. Nalini Kaul was lateron examined as PW14 to prove the factum of transplantation of kidney; PW-14 proved application for approval of transplantation Ex.PW-14/B, affidavit of Smt. Praveen Garg Ex.PW-14/B1; affidavit of Sonia Ex.PW-14/B2; affidavit of Shrinath Ex.PW14/B3, whereby Shrinath testified that he has no objection to the donation of kidney to Praveen Garg by Sonia. PW-14 further deposed that Sh. V. B. Sharma, the Liaison Officer issued certificate Ex.PW-14/B4 regarding relationship between Shrinath Singh and Sonia, as husband and wife. PW14 also proved on record attested copy of ration card of Shrinath and Sonia Ex.PW-14/B5 and that of Praveen Garg and Arun Kumar Ex.PW-14/B6.
PW16 Dr. Bimla Bansal has been examined to -:11:- prove factum of delivery of female baby by Sonia, resident of Jahangirpuri, on 13.10.2000 at 1.40 p.m., and in this respect proved their discharge slips Ex. PW16/A and Ex. PW16/B. PW-15 Dr. Harish Gupta and PW-21 Sh. Satpal deposed about taking of blood samples of Shrinath, Chanderkanta and Yogender Pal Singh.
PW4 Mangat Ram, an agriculturist, PW6 Neelam Devi, resident of a house in street No.19, D-Block, Mukundpur, PW7 Manoj Kumar and PW8 Anaro, when examined in court, did not support the case of prosecution.
PW9 HC Surender Kumar has deposed about receipt of a complaint from accused No.1 on 21.02.2000 and that same was assigned to SI Dinesh Kumar. He further deposed that complaint was to the effect that son of accused No.1 was missing.
PW1 HC Ram Singh is the concerned MHC(M) of PS S.P. Badli with whom the case property was deposited from time to time and who sent sealed parcels to FSL for analysis.
PW-10 Sh. Ramesh Chand, the Sub Registrar was summoned with original record regarding registration of birth of a female named Tanya on 13/10/2000 to Shrinath and -:12:- Smt. Sonia R/o 13296, Jahangir Puri, Delhi. According to PW-10, this information was given by Shrinath himself on 19/04/2001. Copy of birth record bearing signatures of Shrinath accused is Ex.PW-10/A. The witness also proved original birth certificate Ex.PW-10/B. PW-17 Jitender Kumar is the owner of House No. D-19, Mukundpur. He has been examined to prove sale of a plot measuring 33 square yard with no construction thereon, by him to Sonia Chauhan for construction of Rs.20,000/- (twenty thousand). In this respect, he proved original power of attorney Ex.PW-17/A, receipt executed by him in favour of Sonia Chauhan Ex.PW-17/B, agreement to sale Ex.PW-17/C, his own affidavit Ex.PW-17/D, letter of possession Ex.PW- 17/E and Will Ex.PW-17/F. PW-18 SI Dinesh Chand deposed to have enquired into complaint Ex.Pw-18/A signed by Accused No.1 and Yogender Pal Singh Chauhan. Witness further deposed that accused No.1 stated before him that he did not want any action on this complaint.
PW-19 Head Ct. Mangat Ram has been examined to prove information received by him on 24/04/2003 at 01:20 p.m. while he was posted in PCR Staff, from -:13:- telephone no. 7614992 and further that Manoj Kumar, the caller informed that the dead body was lying in the sewer of house of Shrinath, Street No.19, Road No.10, Mukundpur.
PW-20 ASI Ashok Kumar, PW-22 Ct. Chunni Lal, PW-23 SI Manohar Lal, PW-24 Ct. Prem Chand, PW-25 Constable Dharambir Singh, PW-26 Constable Chaman Lal, PW-27 Constable Pawan Kumar, PW-28 SI Satya Pal Singh, PW-29 SI Dhananjay Gupta, PW-30 Constable Bijender Singh, PW-31 ACP R. P. Gautam and PW-32 Head Constable Ramesh Chander have deposed about investigation part of prosecution story.
PW-33 Sh. S. P. R. Prasad, has been examined to prove report given after DNA test of the contents of the samples sent to the laboratory of DNA, Finger Printing and Diagnostics Centre, Hyderabad.
When examined U/s. 313 CrPC, the accused persons admitted their inter-se relationship and their
relationship with the complainant. Accused No.1 admitted that Sarika (since deceased) was daughter of PW-2 & PW-3. Both the accused persons denied that Shrinath accused gave tuition to Sarika. Prem Singh Chauhan accused admitted to have gone to the house of his brother (PW-2) and informed -:14:- him that he had seen his son Shrinath and Sarika in a vehicle and that vehicle used to pass Delhi from Sector-13 Rohini and further that same vehicle used to go back from Sector-13, Rohini. However, he explained that it was later on found to be a case of mistaken identify.
As regard application, copy whereof is Ex.PW2/A, submitted to the police, accused No.1 pleaded as under:
"The application was drafted with the consent of my brother and he signed it. It is also correct that application was submitted to SI D.C. Meswal but this application was submitted by me and my brother. The application which we submitted to the police was destroyed by the police when in the Tata Sumo which used to pass through Sector-13, Rohini, my son and Sarika daughter of PW-2 were not found travelling and it was found to be case of mistaken identity. So it is false that the copy of application Ex.PW-2/A is the copy of the application which I and my brother submitted to the police."
Both the accused denied all other allegations levelled against them and claimed false implication. However, -:15:- despite opportunity, accused led no evidence in defence.
Arguments heard. File perused.
Learned Addl. Public Prosecutor has argued that from the evidence led by the prosecution it stands established that it was Shrinath accused who took away Sarika, daughter of PW-2 and PW-3, then married her and that both of them lived together at a house in D-Block, Street No.19, Mukundpur, Delhi. Learned Addl. PP further argued that from the medical evidence factum of death of Sarika stands established. While referring to the statement of PW-10, learned Addl. Public Prosecutor argued that Shrinath Chauhan and his wife Sarika @ Sonia were blessed with a female child named Tanya on 13/10/2000 and information in this respect was given by Shrinath himself. Reference has also been made to the medical evidence available in the statement of PW-16 Dr. Bimla Bansal regarding admission of Sonia at Hindu Rao Hospital on 13/10/2000 and delivery of a female baby on the same day at 01:40 p.m. Reference has also been made to the statements of PW-15 Dr. Harsh Gupta, PW-21 Satpal and DNA test report Ex.PW-33/D to establish relationship of husband and wife between Shrinath accused and Sarika @ Sonia and factum of birth of child from this -:16:- wedlock.
On the other hand, learned defence counsel has argued that no reliance can be placed on the statements of PW-2 Yogender Pal Singh and PW-3 Chanderkanta who are highly interested in the success of their case. It has also been argued that PW-4 Mangat Ram, PW-7 Manoj Kumar and PW-8 Anaro, all residents of Mukundpur having raised no accusing finger towards any of the accused, prosecution has failed to establish that Shrinath Chauhan accused and Sarika @ Sonia (since deceased) ever lived together at a house in Mukundpur, Delhi. Learned defence counsel then referred to DNA test report Ex.PW-33/D and argued that there is nothing in this report to establish that Tanya, the child, was born from the wedlock of Sarika and Shrinath Chauhan accused. As regards documentary evidence led by the prosecution regarding donation of kidney by Sarika to Smt. Praveen Garg and the other documentary evidence, relied upon by the prosecution, learned defence counsel argued that none of these documents reveal that Sarika and Shrinath Chauhan accused lived together as husband and wife at any house in D-Block, Street No.19, Mukundput, Delhi.
As regards accused No.1 - father of Shrinath -:17:- Chauhan accused, learned defence counsel argued that prosecution has failed to lead evidence to connect him with commission of present crime. As submitted by learned defence counsel, simply because the name plate purported to be of accused no. 2 was allegedly hanging outside the house in D-Block, Street No.19, it cannot be said that it was he who was using his name plate outside the house occupied by his son Shrinath Chauhan accused. Learned defence counsel thus argued that both the accused are entitled to acquittal. Discussion As noticed above, PW-2 Yogender Pal Singh is real brother of accused No.1 whereas PW-3 is wife of PW-2. Present case was registered on the statement made by Smt. Chanderkanta (PW-3).
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; the fact 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. The circumstances should be of a conclusive nature and tendency. They should exclude -:18:- every possible hypothesis except the one to be proved; and 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. Reference in this respect, may be made to decision in Sharad Birdhichand Sharda V. State, AIR 1984 SC 1622:
(1984) 4 SCC 116 : 1984 CrlLJ 1738 : (1984) 2 Crimes 235;
Sudama Pandey V. State AIR 2002 SC 293: (2002) 1 SCC 679: 2002 SCC (Cri) 239; Subhash Chand V. State (2002) 1 SCC 702; Ashish Batham V State AIR 2002 SC 3206\; (2002) 7 SCC 317 : 2003 SCC (Cri) 1718.
In this case, prosecution has relied upon following circumstances:
1. Accused No.2 used to give tuition to Sarika
2. A glimpse of Sarika and Shrinath in a vehicle in Sector 13, Rohini.
3. Conduct of parents of Sarika
4. Sarika begets a child.
5. Purchase of Sewing Machine at the address of Jehangirpuri.
6. Sonia donates her kidney as wife of Shrinath Singh in May, 2001.-:19:-
7. In the year 2002 Sonia and Shrinath lived together at Mukundpur.
8. Sonia purchases 33 sq. yards plot No.72 in village Mukundpur.
9. Sonia and Tanya are found dead on 24.4.2003 in their own house.
Accused No.2 used to give tuition to Sarika According to PW-3, her daughter Sarika was to appear in tenth class examination and for that purpose Shrinath Chauhan accused used to come to their house to give tuition to her daughter. She further deposed that Shrinath Chauhan accused gave tuition to her daughter for 2/3 months and thereafter in the year 1999 he took her away with him.
It may be mentioned here that the witness could not recollect the date when accused No.2 so took her daughter away. The witness admitted that Shrinath Chauhan did not take her daughter away in her presence and that she came to know that he had taken her away.
PW2 Yogender Pal Singh deposed that Shrinath Chauhan accused used to come to his house to gave tuition to his daughter Sarika. He too could not recollect the date when his daughter Sarika was taken away by Shrinath -:20:- Chauhan accused. According to him, it was in the year 1999 that accused No.2 took his daughter away. There is nothing in his statement to suggest that he too saw Shrinath accused taking his daughter away from his house.
It is in her statement that Accused No.1 told her husband (PW-2) that Shrinath Chauhan accused was with their daughter. On this point, she was confronted with her previous statement Ex.PW-3/A made before the police. In this respect, she further stated that this fact transpired during the talks held between her husband and accused No.1. In Ex.PW-3/A it does not stands recorded that it transpired from the talks between accused No.1 and her husband that their daughter was with Shrinath Chauhan accused. PW-2 Yogender Pal Singh nowhere deposed in his statement that any conversation took place between him and accused No.1 in presence of his wife (PW-3) during which accused No.1 admitted that Sarika was with his son - co accused.
Had Sarika been taking tuition from Shrinath accused at any point of time, any notebook or exercise book bearing handwriting of Shrinath accused could be produced before the police. However, during investigation no exercise book appears to have been produced before the police by the -:21:- parents of Sarika. No independent witness from the locality has been examined to prove that Shrinath Chauhan accused used to visit house of PW-2 and PW-3 to give tuition to Sarika while she was student of tenth class. The fact remains that there is no direct evidence that Sarika was taken away by Shrinath Chauhan accused.
PW-2 Yogender Pal Singh stated that accused No.1 came to his house and advised that he should not file any police report as it was an internal matter. Further according to him, accused No.1 assured that after finding out his son and daughter of PW-2, he would send his daughter back. PW-2 further deposed that 2/3 months thereafter, accused No.1 came to his house and told that he had seen his son-accused and Sarika in a vehicle which used to pass from Sector-13 Rohini everyday. PW-2 admitted in his cross examination to have not stated before the police that accused No.1 told him to have seen his son - co accused and his daughter Sarika in a vehicle which used to pass from Sector- 13, Rohini, Delhi.
Case of prosecution is that application, copy whereof is Ex.PW18/A, was given by accused No.1 to Sub Inspector D. C. Meswal, after getting it signed from PW-2. -:22:- According to him accused No.1 advised him to move an application at Police Station Prasant Vihar. Accordingly, accused No.1 prepared application and he (PW-2) signed the same. PW-2 displayed ignorance about the contents of the application. Admittedly, PW-2 is an Advocate by profession. It is not believable that he signed the application without going through its contents.
PW-18 SI Dinesh Chand is the concerned Sub Inspector who was assigned complaint Ex.PW-18/A for inquiry. According to him, he went to the house of accused No.1 at Flat No. 32, Adarsh Kunj Apartment, Sector-13, Rohini, as he was the complainant. Further according to him, the complaint was bearing signatures of Yogender Pal Singh (PW-2) and Accused No.1. PW-18 further deposed that Accused No.1 told him that Sarika, daughter of his brother, and his own son Shrinath Chauhan were major and that the complaint Ex.PW-18/A had been moved after five months to save the honour of the family, and further that he did not want any action on the complaint. According to PW-18 the complaint was accordingly filed.
It is significant to note that this document Ex.PW18/A is only a Photostat copy of complaint. It was for -:23:- the investigating officer to collect its original from the police station or from police records. But its original has not been produced on record. Ex.PW18/A also does not bear any signatures of police officials against receipt of its original in the police station Parshant Vihar, Rohini, Delhi. In absence of its original, no reliance can be placed on this document Ex.PW18/A when it has not been proved in accordance with law and particularly when accused No.1 has denied that it is the copy of the complaint submitted by him to the police.
In his cross examination, PW-18 admitted to have not stated before the investigating officer that Accused No.1 told him that Sarika and Shrinath accused were adult or that he had made the complaint after five months to save the honour of the family. Thus, PW-18 has improved upon his version on this aspect. Furthermore, before a complaint is closed or filed, generally statement of the complainant is recorded in case he does not want to pursue the same. However, in this case, no proceedings ever conducted during any such inquiry by PW-18 have been placed on record to corroborate the statement of PW-18 that the complaint was closed only after Accused No.1 intended no action on the complaint. As per statement of PW-18 there were two -:24:- complainants. Then how could PW-18 close the complaint without the consent of the other complainant namely Yogender Pal Singh (PW-2). Furthermore, there is nothing in his statement that PW-18 obtained any permission from the SHO before closing the inquiry. All this puts the court on guard to carefully scrutinize the prosecution version on this aspect.
As per prosecution version, Sarika daughter of PW2 and 3, and Shrinath Singh accused son of Accused No.1 were not available. As noticed above, PWs 2 and 3 have not specified as to since when their daughter was not available or as to when she was taken away by accused No.2. Whenever one's daughter is found missing or is not traceable despite search, parents cannot sleep even for a night. Rather, parents would search for her here and there including at the houses of their relatives and ultimately rush to the police station to seek help. But in this case, matter is stated to have been reported to police for the first time on 18.2.2000 vide joint complaint of PW2 and accused No.1 submitted to SHO, PS Parshant Vihar, Rohini Delhi. There is no reasonable explanation available on record as to why parents of girl and the son kept mum and did not report the -:25:- matter to the police or their relatives although they were missing w.e.f. 1999. According to PW2 and 3, they did not report the matter to police as accused No.1 advised not to file any report it being an internal matter. PW2 admitted in his cross-examination that he did not try to approach senior officers or to move an application in Court that accused No.2 had away his daughter. PW2 wants the Court to believe that he did not do so as accused No.1 is his elder brother and also because he was following the advice of accused No.1. It is not believable that parents, whose daughter is missing or has been taken away, would follow the advice of a person like accused No.1 for such a long period. But even then PW2 and 3 could go their relatives or convene a meeting of elders or other family members so as to do the needful. But there is nothing on record to suggest that any other family member or elder or relative of either party was contacted or any meeting was convened to bring Sarika and accused No.2 back home. A glimpse of Sarika and Shrinath in a vehicle in Sector 13, Rohini.
It is true that accused No.1 has admitted to have told his brother that he had seen one Tata Sumo vehicle passing through Sector 13, Rohini and that said vehicle used to return -:26:- via same route. But he has explained that it was found to be a case of mistaken identity. There is nothing in evidence to rebut this explanation of accused No.1.
Conduct of police PW18 SI Dinesh Kumar also nowhere deposed to have gone to the disclosed place to check the specified vehicle so as to verify whereabouts of Sarika and Shrinath Singh. This shows as to what kind of enquiry SI Dinesh Kumar did conduct on assignment of complaint submitted by accused No.1 that his son was missing. It is not believable that once accused No.1 opted to report the matter to police, he would have requested PW18 to close the matter. Rather, it appears that accused No.1 was not having any kind of role in missing of his son or daughter of PW2 and he filed complaint before the police to show his bona fides.
Conduct of parents of Sarika When PW2 learnt about the vehicle passing through Sector 13, he could himself go to the disclosed route and check if actually his daughter was there in the same vehicle which used to pass through same route everyday. But there is no evidence to suggest that PW2 took any such step to verify as to what was told by accused No.1.
-:27:-
There is nothing on record to suggest that parents of Sarika doubted involvement of accused No.1 at any time prior to registration of this case. Had accused No.1 any mala fide intentions or any role to play in taking away of Sarika, PW2 and PW3 would have reported the matter to police against him as well and that too in the year 1999 itself. All this goes to show that accused No.1 had no role to play when Sarika left her house in 1999. There is also nothing on record to suggest that accused No.2 ever entered into any conspiracy with his father-accused No.1.
In view of the above discussion, no reliance can be placed on the version narrated by PW2 and PW3 that matter was not reported to the police because of advice of accused No.1 or that complaint submitted by accused No.1 was disposed of or filed at the instance of accused No.1 that police should not enquiry into the matter which was internal matter of the family.
As per statement of PW2, Sarika left her house in the year 1999 and it was on 24.4.2003 that police came to his house and informed that in D block, Street No.19, Mukandpur, dead body of a female was lying, whereupon he reached there and the dead body brought out of septic tank was -:28:- identified by him to be the dead body of his daughter. Another dead body of a female child, aged about two and half years was also recovered, but according to PW2 he could not say as to whose dead body it was. PW3 wife of PW2 was accompanying him at that time. But the fact remains that there is nothing in the statement of PW2 that he or his wife knew prior to 24.4.2003 that their daughter was living at such and such place after she left the house.
So far as testimony of PW3 is concerned, she also deposed that Accused No.1 came to their house and told that dead body of their daughter was lying at a house in village Mukundpur and on reaching there it transpired that Shrinath and Sarika, their daughter, used to reside there as husband and wife under changed names for the last about one and half year. She further deposed that Shrinath was known in the locality as Sunil while her daughter was known as Sonia.
A perusal of statement of PW3 would reveal that prior to 24.4.2003 she ever knew that her daughter Sarika was living in D Block, Mukundpur. She has improved upon her version narrated before the police in Ex.PW3/A by stating in Court for the first time that it was accused No.1 who came to -:29:- their house and told that the dead body of Sarika was lying at a house in village Mukundpur. This fact does not stand recorded in her statement Ex.PW3/A. As noticed above, according to PW2, a police official came to their house and told about recovery of a dead body. PW2 did not state that they so learnt from Accused No.1 as stated by PW3. Therefore, statements of PW2 and PW3 on this aspect are contradictory. PW3 also improved upon her previous statement on the other significant aspect that accused No.2 was residing at the aforesaid house under assumed name of Sunil, as this fact does not stand recorded therein. Even otherwise, there is nothing in her statement as to who told her that accused No.2 and their daughter Sarika were living with changed names.
From the above conduct of parents of Sarika, it can safely be inferred that they knew the cause of their daughter leaving the house and that they opted to bear with her separation of their daughter.
Sarika begets a child.
PW16 Dr.Bimla Bansal of DDU Hospital deposed from record preparing by Dr.Urmil Ghai of that hospital that on 13.10.2000, Sonia aged 20 years, resident of S.Jahangirpuri, -:30:- was admitted in the hospital with prospective date of delivery as 20.10.2000. She further deposed that Sonia delivered a female baby on 13.10.2000 at 1.40 p.m. The witness also proved discharge slips Ex.PW16/A and B. Learned defence counsel has argued that female Sarika who delivered child at DDU Hospital on 13.10.2000 was resident of Jahangirpuri and not resident of Mukundpur, and as such it cannot be said that Sarika daughter of PW2 and PW3 delivered female baby on 13.10.2000.
Firstly, there is nothing in the statement of PW16 to disbelieve her testimony based on record. Secondly, statement of PW16 finds corroboration from the statement of PW10 Sh.Ramesh Chand, Sub Registrar, Civil Lines.
While deposing from the Birth register, PW10 deposed that on 13.10.2000, a female child named Tanya was born to Shrinath and Sonia, resident of H-1396, Jahangirpuri Delhi and in this regard information by given on 19.4.2001 by Shrinath himself. Copy of birth record bearing signatures of Shrinath at point A is Ex.PA10/A. Factum of birth of child was registered vide registration No.953 on 19.4.2001. The witness then proved Birth certificate Ex.PW10/B. There is nothing in the statement of PW16 to -:31:- disbelieve the version narrated by him from record. Accused has come forward with plea of total denial. Birth Certificate stands duly proved on record. It can safely be relied upon particularly when accused has not led any evidence to the contrary to prove that the Birth Certificate Ex.PW10/B is forged and fabricated document.
A perusal of contents of birth certificate Ex.PW10/B would reveal that birth of female child Tanya on 13.10.2000 was got registered with Sub Registrar of Birth and Death, in the area of Jahangirpuri with father's name as Shri Nath and mother's name as Sonia and the place of birth as H 1396, Jahangir Puri, Delhi. No evidence has been led by the accused that Shrinath and Sonia, whose names find mentioned in the Birth Certificate were parents other than accused No.2 and daughter of PWs 2 and 3. Shrinath accused could lead evidence to establish that on 19.4.2001 he did not provide any such information about birth of a female child on 13.10.2000. PW10 was not subjected to cross-examination on the fact that it was Shrinath who provided this information.
-:32:-Purchase of Sewing Machine at the address of Jehangirpuri During investigation one guarantee card in respect of purchase of Sewing Machine is stated to have been recovered. The fact that Shrinath accused and Sarika were living together at House No. 1396, Jehangirpuri also stands established from the Guarantee card in respect of Sewing Machine, purported to have been purchased in the name of Sunil Chauhan on 23.7.2001.
A perusal of report Ex.PW-33/B from Centre for DNA Finger Printing and Diagnostics would reveal that source of bone said to be humerus bone of Sarika was from biological offspring of the sources of Smt. Chanderkanta and Yogender Pal Singh, PW-3 and PW-2 respectively. However, the expert could not give any opinion in respect of the source of small piece of bone said to be of Tannu, the reason being that the source did not yield DNA.
But from the statements of PW10 and PW16 and the record proved by them, it stands established that Tanya, a female child was born to Sonia on 13.10.2000 Shri Nath, her husband, provided information to the Sub Registrar about the birth of the child. It also stands established that the hospital -:33:- authorities and the office of Sub Registrar, Birth and Death, were informed that in October, 2000 the parents were putting up in Jehangirpuri. Shrinath accused has not led any evidence to the contrary to suggest that he never lived with Sarika at H 1396, Jehangirpuri or that he was actually living at such and such address(es) w.e.f.1999 to 2001. Therefore, I do not find any merit in the contention of learned defence counsel that prosecution has failed to connect the documents regarding delivery of child by the daughter of PW2 or that prosecution has failed to establish that Sarika and Shrinath accused were living together at H 1396, Jehangirpuri as on 13.10.2000 or that the DNA report does not establish that Tanya was daughter of Sarika.
Sonia donates her kidney as wife of Shrinath Singh in May, 2001.
In this regard, prosecution has examined PW14 Dr.Nalini Kaul of Sir Ganga Ram Hospital, New Delhi. PW14 has deposed that joint application Ex.PW14/B was filed by Sonia as donor and Parveen Garg as prospective recipient for transplantation of kidney. Alongwith the application, affidavits Ex.PW14/B-1 and B2 i.e. of Parveen Garg and Sonia were submitted. Further according to PW14, Shri Nath Singh -:34:- submitted his affidavit by way of no objection to the donation of kidney by his wife Sonia to Parveen Garg. Sh.V.B.Sharma, Liaison Officer issued certificate Ex.PW14/B-4 with regard to relationship between Shri Nath Singh and Sonia as husband and wife. Ultimately, approval Ex.PW11/A was granted by the authorization committee of the hospital. PW14 has also proved on record copy of notification Ex.PW14/A regarding transplantation of organs.
PW11 Sh.Prem Nath Malhotra, Senior Medical Record Officer proved on record Ex.PW11/A regarding transplantation of kidney.
Statements of PW11 and 14 have gone unchallenged. These proceedings pertain to the period 16th April, 2001 and 3rd May, 2001. From the unchallenged statements of PW11 and PW14 and the record proved by them, it stands established that Sonia and Shrinath accused were living together as husband and wife. The record proved by PW14 includes copy of ration card Ex.PW14/B-4 of Shrinath. As per this ration card also, as on 30.4.2001, Shrinath and Sonia were living together as husband and wife, with their address as 99, J Extn. Laxmi Nagar.
The above discussed evidence further establishes that -:35:- although earlier Sonia and Shrinath were living together as husband and wife in Jehangirpuri, in April 2001 both of them are shown to have shifted to Laxmi Nagar, Delhi though for a short while during the days of transplantation of kidney. In the year 2002 Sonia and Shrinath lived together at Mukundpur.
On this aspect, there are statements of PW 4 Mangat Ram, PW6 Neelam Devi and PW7 Manoj Kumar, all residents of Mukundpur. As per prosecution story, all these three witnesses were living in the neighbourhood of Sarika and Shrinath Singh, in street No.19, D block, Mukundpur, Delhi and that they had seen both of them living together as husband and wife at the house in that street. But significantly, none of these three witnesses has supported the prosecution story in this regard. All of them were declared hostile, and even when they were put leading questions by learned Addl. Public Prosecutor, none of them utter even a word to support the prosecution story in this regard.
PW4 displayed ignorance about the accused present in court and about this case as well. He could not tell if Shrinath accused was residing with his wife and children in a house situated at a distance of 15 to 16 fields from his field. He -:36:- admitted that his field is in D Block Mukundpur, but he could not even say if his field is in street No.19.
PW5 also displayed ignorance about the accused produced in Court or that Sonia and Shrinath accused and a girll child were residing in her neighbourhood. She admitted that a board was there but displayed ignorance as to in whose name it was. Then she displayed ignorance about this case. She denied to have given any statement to the police. According to her, dead-bodies of a woman and a child were recovered from the premises in her neighbour-hood, but she denied to have identified the dead body to be that of Sonia and that of her daughter. When leading questions were put to her by learned Addl. Public Prosecutor, she displayed ignorance if Shrinath alongwith Sonia and daughter were residing in the second house from her house for the last two years or that she stated so before the police. She could not say if the house remained open or it was occupied. She further displayed ignorance if Accused No.1 started visiting that house or represented himself to be an Advocate or affixed his board at the said premises or that she stated so before the police.
PW6 further displayed ignorance if in March, 2003 -:37:- accused No.1 visited the aforesaid house and tried to take away Sonia, Shrinath and their daughter, aged 6 or 7 years, on the ground that marriage of his daughter was going to be solemnized or that Sonia refused to accompany apprehending danger at that place or that after two hours accused No.1 took away all the three with him. She denied to have seen accused No.1 and 2 without Sonia and her daughter Tannu. The witness displayed ignorance that on 22.4.2003 accused No.2 brought bottles of phenyl or that even at that time, Sonia and Tannu were not present. She denied to have stated that on 24.4.2003 she felt bad smell emanating from the house of Shrinath or that she gave a ring to accused No.1 or told him about the same.
PW7 Manoj Kumar is husband of PW6. He too displayed ignorance about the accused and the present case. He even denied to have made any statement before the police.
PW8 Anaro wife of Achhe Lal also displayed ignorance about the accused or about the fact if they ever lived in her neighbourhood. She too was put leading questions by learned Addl. Public Prosecutor but nothing useful to the prosecution could be elicited from her.
-:38:-
In view of the above testimony of PW4, 6, 7 and 8 it can safely be said that none of them has deposed about any relationship between the accused and the deceased.
Sonia purchases 33 sq.yards plot No.72 in village Mukundpur.
In this regard, prosecution has examined PW17 Jitender Kumar son of Somar Sahni, resident of B-24, St.No.B-2, Mukandpur Colony. According to PW17, he owned a plot measuring 33 sq.yards -D 19, Mukundpur-with no construction in it; that he sold it to Sonia Chauhan for a consideration of Rs.20,000/-and in this regard he executed documents Ex.PW17/A to F. Learned defence counsel submitted that all these documents are in the name of Sonia Singh and not in the name of Shrinath Singh and as such prosecution cannot connect Shrinath Singh with the present crime.
As noticed above, PW17 has deposed about sale of plot in the name of Sonia Chauhan. Out of the documents Ex.PW17/A to F, general power of attorney is a document registered with Sub Registrar (VI), North West, Delhi whereas others find attestation of Notary, Delhi. Stamp paper was purchased on 3.9.2001 in the name of Jitender Kumar, the -:39:- vendor. All the documents were attested on 3.9.2001. Virender Kumar son of Somar Prasad signed the GPA and receipt as attesting witness.
From the above documents Ex.PW17/A to F it stands established that plot measuring 33 sq.yards, forming part of Khasra No.72, situated in Mukandpur abadi known as Mukandpur Extension was purchased on 3.9.2001 on payment of Rs.20,000/-from Jitender Kumar in the name of Sonia Singh Chauhan wife of Shrinath Singh Chauhan with their residential address as D Block, Mukundpur, Extention, Delhi 42. These documents support the case of prosecution that Sonia and Shrinath Chauhan (accused No.2) were living together as husband and wife in Mukundpur, Delhi, as on 3.9.2001 at the time the plot measuring 33 sq.yards was purchased and that possession of the said plot was delivered on the same date i.e. 3.9.2001.
Ration Card Prosecution has placed on record ration card Ex.PW31/G. It was issued on 3.11.2002. This ration card reveals that it was issued in the name of Shrinath Chauhan, the head of the family consisting of Shrinath Chauhan, his wife Sonia, their daughter Tanya Singh Chauhan and -:40:- Rajender Singh (brother of Shrinath accused). Mukundpur falls in Circle 55 of Jehangirpuri, Delhi. Photograph stapled on the ration card is of Shrinath Singh (accused No.2) and it stands attested by Sh.Hira Lal, Municipal Commissioner of the area. It was duty of the Investigating Officer to associate Rajender Singh, brother of accused No.2, in the investigation so as to enquire from him as to since when they were living together in the same house in Khasra No.72, but no step appears to have been taken in this direction, for the reasons best known to the Investigating Officer to collect evidence from him. Although, it is not clear from the evidence as to for how much period, Shrinath and Sonia lived at Laxmi Nagar, yet from the ration card Ex.PW31/G it stands established that they, as husband and wife, were keeping their abode in khasra No.72, Mukundpur, Jehangirpuri around November, 2002. It is not believable that name of any of the family members, as stand recorded in this ration card, was got falsely introduced by anyone or at anyone's instance in the year 2002 when the occurrence took place in the year 2003.
In view of the above discussion, this court comes to the conclusion that although PWs 4,6 to 8 have not supported the case of prosecution, from the other -:41:- documentary evidence prosecution has fully established that Sonia and accused No.2 Shrinath Chauhan were living together as wife and husband at the house in D Block, St. No.19, village Mukundpur, Delhi w.e.f. September, 2001 and at that time they were having a female child Tanya Singh Chauhan, aged 2 years.
Sonia and Tanya are found dead on 24.4.2003 in their own house.
PW13 ASI Prem Singh, the concerned Duty Officer at P.S.Samaypur Badli as on 24.4.2003 has deposed that on that date at 1.40 p.m, he received information from wireless operator that a dead body was lying at D Block, Gali No.19, Road No.10, Mukundpur, Delhi at the house of Shrinath. On its basis, he recorded Ex.PW13/A -DD No.17 A and its copy was assigned to SI Dhananjay Gupta. A perusal of Ex.PW13/A would reveal that information received by PW13 was the one as stated by him in his statement made in Court. There is nothing in the statement of PW13 to disbelieve his testimony. This brings us to the statement of PW 19 HC Mangat Ram, who was posted in PCR as on 24.4.2003.
According to PW19, on that date, at about 1.28 p.m, one Manoj informed him telephonically while calling from -:42:- telephone No.7614992 that a dead body was lying in the sewer of the house of Shrinath in st.No.19, Road No.10, Mukundpur. He further deposed to have passed on this information to the net for onward transmission. The witness has proved copy of the information recorded in DD No.445 Ex.PW19/A. Statement of PW19 has gone unchallenged.
Then there are statements of PW 29 SI Dhananjay Gupta, PW22 Constable Chunni Lal, PW25 Constable Dharambir Singh, PW 26 Constable Chaman Pal, PW31 ACP R.P.Gautam and PW32 HC Ramesh Chander. All these witnesses have deposed about their visit to the spot i.e. the house in D Block, St No.19, Mukundpur and recovery of two dead bodies from the septic tank after its cemented lid was broken open. One of the dead bodies was of a lady and the other of a female child aged about 2 ½ years. PW22 member of the Crime Team also proved negatives Ex.PW22/16 to 30 and their positives Ex.PW22/1 to 15.
It is in the statements of PW2 and 3, parents of Sarika, that they identified the dead body of their daughter at the house in village Mukundpur, Delhi. During investigation, at the spot on 24.4.2003 their statements Ex.PW5/A5 and 6 were recorded by the police regarding identification of dead -:43:- body of their daughter. Rough site plan Ex.PW31/B depicts the place from where the two dead bodies were recovered on 24.4.2003. Inquest proceedings Ex.PW5/A1 to A10 conducted during investigation pertain to the two dead bodies.
Case of prosecution is that a signboard bearing name of accused no. 1 was found hanging outside the house in D- Block, Street No.19, Mukundpur, which shows involvement of accused no.1 in commission of the crime. It may be mentioned here that witnesses examined from the neighbourhood have not supported the case of prosecution on this aspect. There is no evidence on record to suggest that accused no.1 was ever seen visiting this house or displaying his board outside the house. There is also no evidence that any law books or any brief of accused no. 1 were found lying at this house. Therefore, I find merit in the contention of learned defence counsel that simply because signboard of accused no.1 is stated to have been found hanging outside the house in Mukundpur, prosecution has not been able to connect accused no.1 with commission of present crime.
It is case of prosecution that accused no. 1 produced before the police key and lock Ex.P32/1, P32/2 and chain Ex.P32/3. Recovery memo Ex.PW-7/D is stated to -:44:- have been prepared in this regard. It may be mentioned here that PW-32 Head Ct. Ramesh Chander nowhere deposed as to where all these three items were produced by accused no.1. PW-31 ACP R. P. Gautam also deposed about production of these three items by accused no.1 and about their seizure vide memo Ex.PW-7/B but there is no corroboration from independent source in this regard. PW Manoj Kumar has not supported the case of prosecution on this aspect. Furthermore, none of these articles was sealed into any parcel, as admitted by PW-32 in his cross examination. It also remains unexplained as to for which house all these articles were meant. Therefore, this piece of evidence has not been established by the prosecution beyond doubt.
Both the dead bodies were subjected to autopsy on 25.4.2003 by Dr.B.N.Acharya. While appearing as PW5, the doctor has proved autopsy reports Ex.PW5/A and B. Medical Evidence On autopsy of the dead body of Sonia, PW5 prepared report Ex.PW5/A observing in the manner as:
The body is easily bloated up with -:45:- peeling of skin all over the body. Scalp hair is completely absent. Nasal bone is fractured with presence of blood clot on fractured side. Tip of tongue is bruised and protruding out. Both the lips are bruised on middle. Both upper and lower incisor teeth was loosened and on removal blood clot is found in the socket. Adult fully developed. Maggot in gravity all over the body externally and internally.
Head: Scalp tissues, scalp hair peeled off and absent. Skull bones intact, brain matter in brain is liquified.
Neck Tissues: Hyoid bone intact, thyrod cartilage and cricoid cartilage intact, tracheal rings intact, tracheal mucosa decomposed.
Chest: Bony cage/ribs intact, lungs shrunken in size due to decomposition, heart soft and flabby.
Abdomen and pelvis, liver and gallbladder brownish discoloured, spleen blackish discoloured, left kidney absent, stomach contents empty, mucosa decomposed, abnormal smell was foul, small and large bowels give foul smell, urinary bladder, rectum and uterus empty.
On autopsy of the dead body of Tanya, the female child, the doctor submitted his report Ex.PW5/B. In case of Sonia, in the opinion of the doctor, all the injuries over the dead bodies were ante mortem and -:46:- caused by blunt force application on mouth and nose; that death was due to pressure over external air passing i.e. mouth and nose smothering.
In case of Tanya, the doctor could not give any definite cause of her death because the dead body was highly decomposed. The doctor further observed that homicidal angle could be ruled out in other investigation. But prosecution has not placed on record any evidence as to what led to death of Tanya and as to when she left this world.
As regards probable duration between death and post mortem examination, the doctor could not give definite time. In his cross-examination, the doctor stated that since maggots had eaten the bodies, he could not ascertain the time. Then he stated that approximately, it could be 5 days, 7 days or even one month also. But the fact remain s that Sonia and Tanya were found dead and the two dead bodies were recovered from the house in D Block, Street No.19, village Mukundpur, Delhi after breaking open the septic tank's lid.
Learned Addl. Public Prosecutor has argued that since the dead bodies were recovered from the house of Shrinath Singh (accused No.2) and he (accused) has failed to explain as to under what circumstances his wife and daughter -:47:- died and their dead bodies were found from the septic tank, adverse inference has to be drawn against him so as to hold him liable for committing murder of his wife and daughter and then having concealed their dead bodies in the septic tank. Question arises as to what led to death of Sonia and Tanya or throwing of their dead bodies in the septic tank?
Prosecution has placed on record guarantee card of sewing machine Ex.PW2/C, referred to above. On the reverse side of this card, there is a handwritten note to the following effect:
"I do not know as to for which wrong deed I am being penalized. But I could never understand you. I though that Laila could leave Majnu but you could not leave me. How wrong I was ? "
Case of prosecution is that this is in the handwriting of wife of Shrinath (accused No.2). To prove that this handwritten note is in the handwriting of his wife, prosecution has relied on the statements of PW2 and PW3. The Investigating Officer did not take any step for comparison of the handwriting in Ex.PW2/C with the specimen handwriting of their daughter. Therefore, evidence of PW2 and PW3 is not relevant and admissible in evidence. Furthermore, there is -:48:- neither any evidence to suggest as to when this handwritten note was reduced into writing nor any corroboratory evidence so as to find out as to under what circumstances it came to be written.
Case of prosecution is that the ration card, birth certificate, discharge slip and guarantee card were recovered from a room on the second floor of H.No.G 526-527, Jehangirpuri, Delhi, when the room was opened by accused No.1 in presence of Bishamber Nath Sharma, HC Ramesh Chand and ACP R.P.Gautam. In this regard, prosecution has relied upon statements of PW31 ACP R.P.Gautam and PW32 HC Ramesh Chand.
According to PW31, it was on 27.4.2003 that accused No.1 led them to a room on the second floor of H.No.G 526-527, Jahangirpuri, Delhi and produced documents Ex.PW18/A, PW10/D, PW16/A, B, PW2/C and PW 31/G. He further deposed that these were seized vide memo Ex.PW31/F. Accused No.1 has denied this version narrated by PW31. PW Bishamber Nath, owner of H.No.G 526-527 has left this world and as such he could not be examined during trial.
PW32 HC Ramesh Chand has deposed that on -:49:- 25.4.2003 he accompanied the SHO to the aforesaid house where Bishamber Nath, landlord of the house met them and told that Shrikant and his wife and female child used to live at his house as tenant but they had left and started residing at Mukundpur. However, it is significant to note that PW 31-the Investigating Officer did not state about any such fact. Had they so contacted Bishamber Nath, the Investigating Officer must have recorded statement of PW32 on that date i.e. 25.4.2003. There is no cogent and convincing evidence to suggest that accused No.1 knew that his son-accused No.2, his wife Sarika and Tanya were living together at any of the aforesaid places, it cannot be said that documents recovered from the house of Bishamber were got recovered by accused No.1. It appears that this recovery at the instance of accused No.1 has been shown to implicate him in this case. But it does not mean that this Court is disbelieving any of the aforesaid documents seized by the police.
A perusal of statement of Shrinath accused No.2 recorded under Section 313 Cr.PC would reveal that he did not offer any explanation about death of his wife and daughter and recovery of their dead bodies from the septic tank inside his house in St.No.19, D Block, Mukundpur. He simply -:50:- displayed ignorance about this fact. As held above, prosecution has fully established that Shrinath was living with Sonia as her husband and they had a daughter Tanya. In the given facts and circumstances, it was for accused No.2 to explain as to what led to death of his wife and daughter, but he has failed to furnish any explanation either regarding their death or recovery of dead bodies from the septic tank inside his house. In this case, Shrinath accused could explain while replying to the questions in his statement under Section 313 Cr.PC or by leading evidence that during the period from 1999 to 24.4.2003 he was living at such and such place other than the places referred to above including the one in D Block, Street No.19, Mukundpur. Accused No.1 has also not led any evidence in this regard to rebut the evidence led by the prosecution.
Furthermore, during cross-examination of PW3 it was suggested to her by learned defence counsel in the manner as:
"I suggest it to you that no complaint in the police was lodged as your husband was happy with the relationship between Shrinath Chauhan and your daughter Sarika and was knowing -:51:- about the same."
PW3 denied the aforesaid suggestion put to her in her cross-examination. The only plea put forth by him is that he does not know as to why he has been falsely implicated by the complainant and his wife. Then he pleaded that they may be having some enmity in their mind keeping in view their progress. However, accused No.2 has not led any evidence of any such enmity or cause of any enmity between the two real brothers i.e. accused No.1 and PW2, both of whom were Advocates. No evidence has been led that there was any cause for the complainant and her husband to be inimical for false implication of accused No.2, closely related to them. In State (through CBI) v. Santokh Kumar Singh, 2006 IV AD (Cril)(DHC) 257, it has been held that when false plea is put forth by an accused, same is an additional link in the chain of circumstances. In this case, when accused No.2 has put forth plea of total denial to have lived together with Sarika as husband and wife, and also about birth of female child, the plea put forth by him can safely be said to be false plea attracting the decision in Santokh Kumar Singh's case.
As discussed above, prosecution has established recovery of dead bodies of Sarika and Tanya from the house -:52:- in D Block, Street No.19, Mukundpur. It is well settled that if an accused fails to offer explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of Evidence Act. In a case resting on circumstantial evidence if 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. In this case, it was for accused No.2 to throw light as to how dead bodies of his wife Sarika and daughter Tanya came to be thrown in the septic tank of their house in street No.19, Mukundpur, Delhi. Since he has failed to throw any light upon this fact specifically within his knowledge, this Court can safely consider his failure to adduce any explanation as an additional link which completes the chain. In this view of the matter, reference is made to decision in Re. Naina Mohd, AIR 1960 Madras 218 as referred to in State of Rajasthan v. Kashi Ram, 2006 IX AD (SC) 561.
Learned defence counsel has contended that this is a case where prosecution has not proved any kind of motive for commission of the crime by accused no.2. It is true that prosecution has not been able to establish any motive against -:53:- accused no.2 but it is well settled that if the prosecution is able to establish beyond reasonable doubt that it is the accused alone who could have committed the offence, the absence of the motive will not hamper a safe conviction. In this regard, reference may be made to decision in Mani Kumar Thapa Vs. State AIR 2002 S.C. 2920.
Conclusion:
In view of the above findings, this court comes to the conclusion that prosecution has failed to bring home guilt against Prem Pal Singh Chauhan accused for any of the offences. Accordingly, Prem Singh Chauhan accused is acquitted in this case.
This court further comes to the conclusion that prosecution has fully established its case against Shrinath Chauhan, accused no.2, for an offence u/s 302 IPC for his having committed murder of his wife Sarika - Sonia whose dead body was recovered alongwith the dead body of daughter Tanya from the Septic Tank inside the house. Accordingly, Shrinath Chauhan accused is held guilty of the offence u/s 302 IPC and convicted thereunder. There being no evidence of conspiracy between the two accused, Shrinath -:54:- Chauhan accused is acquitted of the offence u/s 120-B IPC.
Let the convict Shrinath Chauhan be heard on the point of sentence.
Announced in Open Court on Dated: 11th of September, 2007 [NARINDER KUMAR] Additional Sessions Judge Fast Track Court: Rohini/Delhi -:55:- IN THE COURT OF SH. NARINDER KUMAR ADDL. SESSIONS JUDGE FAST TRACK COURTS ROHINI DELHI SC No. 7 dated 18/01/2007 Date of Decision: 11th of September, 2007 State Versus
1. Shri Nath S/o Sh. Prem Singh Chauhan R/o house no. (not known), Street No. 19, D-Block, Mukundpur, Delhi. .... Convict FIR No. 196/2003 PS S. P. Badli U/s. 302 IPC ORDER ON SENTENCE 11-09-2007 Present: Addl. PP for State.
Shrinath convict in custody, with counsel Sh. Pradeep Chaudhary, Advocate.
I have heard the convict and Sh. Pradeep Chaudhary, learned counsel on the point of sentence. They have prayed for leniency stating that Srinath is a youthful -:56:- offender and is not a previous convict.
In this case, when prosecution has fully established its case against the convict Shrinath Chauhan to the effect that he did commit murder of his wife Sarika - Sonia whose dead body was recovered alongwith the dead body of daughter Tanya from the Septic Tank inside the house, he has been held guilty and convicted of the offence U/s. 302 IPC. Death sentence is to be imposed only when life imprisonment appears to be and altogether inadequate punishment having regard to the relevant circumstances of the crime. Keeping in view all the facts and circumstances of this case, the fact that the accused-convict fell in love with Sarika, that both of them then lived together as husband and wife and they were blessed with a female child, but for the motive, which has remained locked in the mind of the convict, he did commit her murder and her dead body and the dead body of the female child were found in the septic tank, I deem it a fit case to sentence the convict to life imprisonment and to pay a fine of Rs. 25,000/- ( Twenty five thousand only) or in default of payment of fine, he shall further undergo rigorous imprisonment for six months. I order accordingly.
Case property be destroyed in accordance with -:57:- rules on expiry of period of appeal/revision, if none is preferred or subject to decision thereof.
Copy of this order as well as of judgment be given free of cost to convict.
File be consigned to record room.
Announced in Open Court on Dated: 11th of September, 2007 [NARINDER KUMAR] Additional Sessions Judge Fast Track Court: Rohini/Delhi 11/09/2007