Delhi District Court
State vs . Jaspal on 30 August, 2019
IN THE COURT OF SH. AJAY GOEL, ADDITIONAL
SESSIONS JUDGE/SPECIAL JUDGE (NDPS),
DWARKA COURTS, NEW DELHI.
Sessions Case No. 440274/2016
In the matter of:
State Vs. Jaspal
S/o Late Sh. Babu Ram,
R/o Village Nangla Daman,
PS-Sikenderpur Vaish,
District Kashganj,
(Etta), U. P.
FIR No. : 182/01
Police : Dwarka
Station
Under : 302 IPC
Section
Date of Institution of Case : 01.08.2002.
Date of Consigning case to Record room : 23.08.2003
Date of Filing Supplementary Charge-sheet : 02.11.2015
Date of Committal to Sessions Court : 23.11.2015
Date of Assignment of case to this court : 08.08.2017
At the stage of P. E.
Date of Final Arguments : 23.08.2019
Date of Judgment : 30.08.2019
JUDGMENT:
1. The case of the prosecution is that in the month Sessions Case No. 440274/2016 State Vs. Jaspal Page No.1/50 of August, 2001, Jaspal (accused herein) was residing in a room at Plot No. 45, Khasra No. 7/12, 20 Points Programme Plots, Village Bagdola, New Delhi with his wife Smt. Monu (since deceased) and a daughter aged about 1 year. As per the case of prosecution, accused was working in Neel Kanth Gas Agency, Sector-9, Dwarka, New Delhi and Sh. Radhey Shyam was also working in the same Gas Agency and was residing in a room adjoining to room of accused.
2. On 26.08.2001, accused Jaspal returned to his aforesaid room from his duty at about 05.00/6.00 pm and had started quarreling with his wife. Thereafter, Sh. Radhey Shyam had intervened and asked accused not to quarrel and on this accused and his wife went in their room.
3. As per case of prosecution, on 27.08.2001 at about 2.00 am, Sh. Radhey Shyam woke up and found that room of accused was locked from outside and he peeped from the window and found that the Sessions Case No. 440274/2016 State Vs. Jaspal Page No.2/50 wife of accused Monu was lying on the floor and accused and his daughter were missing and room was found locked from outside. On 27.08.2001 in the early morning, Sh. Radhey Shyam along with his wife Ms. Sunita went to the police station and informed to the police of PS Dwarka and informed about the incident and on his information, DD No. 7A was recorded.
4. Thereafter, on 27.08.2001, on receipt of DD No. 7A, Inspector Rajesh Maurya along with SI Ramesh Chand (Now Retd.), ASI Jagbir Singh and complainant reached Plot No. 45, Khasra No. 7/12, 20 Points Programme Plots, Village Bagdola Dwarka, New Delhi at about 5.45 am and found room of accused locked from outside. On peeping from the window of his room, wife of accused was found lying on the floor and there was no movement in her body and in the meantime, Retd. ACP Sh. Umesh Singh (then SHO) had also reached the spot and thereafter, on his Sessions Case No. 440274/2016 State Vs. Jaspal Page No.3/50 directions, the lock of the room was broken by SI Ramesh Chand. After breaking the lock of the room, when Inspector Rajesh Maurya, SHO Umesh Singh and other police staff entered in the room and they found that dead body of deceased was lying and there were ligature marks on the neck of the deceased.
5. Thereafter, Crime Team was called at the spot and photographer HC Vinay Kumar took photographs of the spot from different angles. It is stated that a thread was also found lying at the spot and the same was sealed and seized by SHO Umesh Singh. The broken lock was also sealed and seized by SHO Umesh Singh. The dead body of the deceased was identified by Sh. Radhey Shyam as of Smt. Monu and it was sent to mortuary DDU Hospital from the spot. It is averred that SHO Umesh Singh recorded statement of Sh. Radhey Shyam and prepared rukka and sent SI Ramesh Chand to PS for FIR.
Sessions Case No. 440274/2016 State Vs. Jaspal Page No.4/50
6. On 27.08.2001 at about 10.10 am, the FIR No.182/2001 in the present case was recorded by ASI Nirmala on the basis of rukka and she made her endorsement on the rukka. Thereafter, HC Mukesh Kumar had taken the copies of the FIR to area Magistrate and Sr. Officers of Police as Special Messenger. During investigation, SHO Umesh Singh prepared site plan, made application for postmortem and filled Form 25/35. Thereafter, the statements of Sh. Radhey Shyam and Ms. Sunita, were recorded regarding identification of the dead body and SHO Umesh Singh prepared brief facts of the case. It is stated that Dr. Lalit Kumar conducted postmortem on the dead body of the deceased.
7. During investigation, it was revealed that accused had committed the murder of his wife and had absconded.
8. On 17.10.2001, Inspector Madan Pal visited the spot with Inspector Rajesh Maurya and took the Sessions Case No. 440274/2016 State Vs. Jaspal Page No.5/50 measurements of the spot and prepared scaled site plan. Efforts were made to apprehend and arrest the accused but he could not be traced and finally accused was declared proclaimed offender vide order dated 21.02.2002 passed by Ld. MM.
9. After completion of investigation, charge-sheet under Section 302 IPC against accused Jaspal was filed in the court as P. O.
10. Thereafter, witnesses i.e. PW-1 Dr. Lalit Kumar, CMO DDU Hospital, PW-2 Radhey Shyam, PW-3 Smt. Sunita, PW-4 HC Prahlad Swaroop, PW-5 HC Yashpal Singh, again PW-5 Ct. Mukesh Kumar, PW-6 WHC Nirmala, PW-7 SI Madan Pal, PW-8 Ct. Vinay Kumar and PW-9 Inspector Umesh Singh were examined U/s 299 Cr. P. C. Thereafter, file was consigned to record room.
11. On 01.09.2015, accused was apprehended and arrested by SI Basant Kumar U/S 41 Cr. P. C. from his village Nagla Daman, District Sikanderpur West, U.P. Sessions Case No. 440274/2016 State Vs. Jaspal Page No.6/50 SI Basant Kumar prepared Kalandara and DD entries.
12. On 21.09.2015, accused was arrested by Inspector Dharambir Singh in the present case and his personal search was conducted and his disclosure statement was recorded. Thereafter, on 22.09.2015, accused made another disclosure statement to Inspector Dharambir Singh and he recorded the same.
13. On verification by Inspector Dharambir Singh, accused was found involved in a case registered against him U/S 135 Electricity Act.
14. After filing of supplementary charge sheet, the Court of Ld. Metropolitan Magistrate observed that trial of offence U/s 302 IPC is exclusively triable by Court of Sessions, hence case was committed to Court of sessions in terms of Section 207 of Cr. P. C. vide its order dated 23.11.2015. The file consigned to record room was revived and was attached with supplementary charge sheet.
Sessions Case No. 440274/2016 State Vs. Jaspal Page No.7/50 Charge against the accused persons:
15. Vide order dated 07.06.2016, the charge for the offences under Sections 302 IPC was framed against the accused Jaspal to which he pleaded not guilty and claimed trial. In view of the settled principle of law that penal provisions do not have retrospective operation, the charge U/s 174A IPC was not made out against the accused and matter was posted for prosecution evidence.
16. The prosecution examined following witnesses:
PW1 is SI Prahalad Swaroop. He was posted as MHC(M) with PS-Dwarka and he deposed regarding deposition of four sealed pulandas of present case and making of entry No. 386 in this regard was proved as Ex. PW-1/A. PW2 is Sh. Radhey Shyam. He is neighbour of accused who had deposed substantially against Sessions Case No. 440274/2016 State Vs. Jaspal Page No.8/50 accused and he is last seen witness in the case. His material deposition is being dealt in later part of judgment.
PW3 is Ms. Sunita. She is wife of PW-2, however this witness resiled from her previous statement and did not support the case of prosecution.
PW4 is Dr. Lalit Kumar, Retd. CMO. He deposed that he conducted postmortem on the dead body of Monu. He proved the detailed postmortem report as Ex. PW-4/A. PW5 is ASI Birginia. He deposed that on 02.09.2015, he recorded DD No. 17 A which was proved as Ex. PW-5/A. PW6 is Retd. SI Ramesh Chand. He deposed that on receipt of information recorded vide DD No. 7A, he alongwith SI Rajesh Maurya reached at spot and he deposed further regarding investigation carried out in his presence by him Sessions Case No. 440274/2016 State Vs. Jaspal Page No.9/50 and other police officers.
PW7 is Inspector Rajesh Maurya. He deposed that DD No. 7A was entrusted to him for necessary action and he alongwith HC Ramesh, HC Jagbir and Radhey Shyam reached at spot. This witness also deposed further regarding investigation carried out in his presence by him and other police officers. He proved seizure memo with regard to the articles found on the body of deceased as Ex. PW-7/A, the seizure memo of thread was proved as Ex.
PW-7/B, the sealed pulanda of thread was seized by Inspector Umesh Singh vide seizure memo Ex. PW-7/C, the seizure memo with regard to blood sample and cloths of deceased was proved as Ex. PW-7/D, the carbon copy of proceedings regarding disposal of unclaimed dead body were Ex. PW-7/E. The thread found from spot was Ex. P-2.
Sessions Case No. 440274/2016 State Vs. Jaspal Page No.10/50 PW8 is ASI Nirmala. She is a witness who recorded FIR in the present case and copy of same was proved as Ex. PW-8/A, her endorsement on rukka as Ex. PW-8/B. PW9 is ASI Jagbir Singh. He deposed that on 27.08.2001, one person namely Sh. Radhey Shyam came to PS and lodged DD Entry No. 7A which was entrusted to SI Rajesh Maurya for necessary action and he alongwith other staff members reached at spot and conducted investigation as per their deposition. PW10 is ASI Yashpal Singh. He is a witness who had recorded information in Roznamcha vide DD No. 7A and true copy of same was proved as Ex. PW-10/A. PW11 is Inspector Madan Pal. He deposed that he visited spot on 17.10.2001 and took measurements of spot at the instance of SI Rajesh Maurya and prepared rough notes. He Sessions Case No. 440274/2016 State Vs. Jaspal Page No.11/50 proved the scaled site plan as Ex. PW-11/A. PW12 is SI Niranjan Lal. He is a witness who had executed the process U/s 82/83 Cr. P. C. against accused Jaspal at his native village and submitted his report in the court.
PW13 is SI Basant Kumar. He deposed that accused Jaspal was apprehended by him from village Nagla Daman, PS-Sikanderpur Vaish, District - Kashganj, UP U/s 41.1 (c) Cr. P. C. as the accused was proclaimed offender. The arrest memo, personal search memo and body inspection memo were Ex. PW-13/A, PW-13/B and PW-13/C and copy of DD No. 5 dated 01.09.2015, DD No. 5 dated 02.09.2015 and copy of kalandra were Ex. PW-13/D, PW-13/E and PW-13/F. PW14 is HC Mukesh Kumar. He deposed that he had taken the copies of FIR of present case to the office of Senior Officers of police and Ilaka Sessions Case No. 440274/2016 State Vs. Jaspal Page No.12/50 Magistrate as Special Messenger immediately after registration of FIR.
PW15 is HC Vinay Kumar. He deposed that he was posted as photographer in Mobile Crime Team and he alongwith other members of crime team reached at spot where dead body of lady was found lying. The photographs of scene of spot taken from different angles were proved as Ex. PW-15/A1 to PW-15/A3 and negatives of same were Ex. PW-15/B1 to PW-15/B3.
PW16 is ASI Om Veer Singh. He deposed that on 21.09.2015, accused Jaspal was arrested by IO / Inspector Dharambir Singh after permission of the court. The arrest memo of accused Jaspal was proved as Ex. PW-16/A, his personal search memo as Ex. PW-16/B and his disclosure statement as Ex. PW-16/C. PW17 is Ct. Sandeep. He deposed that on 22.09.2015, he joined investigation of present Sessions Case No. 440274/2016 State Vs. Jaspal Page No.13/50 case with IO/Inspector Dharambir Singh and accused was interrogated by IO in his presence. The disclosure statement of accused was proved as Ex. PW-17/A. PW18 is Retd. ACP Umesh Singh. He deposed that on 27.08.2001, on receipt of information regarding present case, he alongwith his staff reached at spot and conducted investigation at spot. He deposed that he recorded statement of Sh. Radhey Shyam and prepared rukka Ex. PW-18/A. The site plan was proved as Ex. PW-18/B, application for autopsy as Ex. PW-18/C, Form 25-35(B) as Ex. PW-18/D, statements of Sh. Radhey Shyam and Sunita as Ex. PW-18/E and PW-18/F. PW19 is Inspector Dharambir Singh. He deposed that case file was assigned to him and accused was arrested by him after permission of court in which he was produced on production Sessions Case No. 440274/2016 State Vs. Jaspal Page No.14/50 warrant. He deposed that an FIR U/s 135 Electricity Act vide No. 92/15 was found registered against accused and relevant documents were proved as Ex. PW-19/A.
17. On 17.08.2019, the statement of the accused under Section 313 Cr. P. C. was recorded wherein all the incriminating evidence was put to him. In his defence, he stated that he was told by his neighbour Sh. Radhey Shyam that his wife had died. He stated that he was apprehending that police would implicate falsely in this case, hence he went to his village.
18. I have heard Sh. Dushyant Siwatch, Ld. Addl.
PP for the State and Ld. Counsel for the accused. The material on record has been perused. ARGUMENTS OF PROSECUTION:
19. Ld. Addl. PP for the state argued that the deceased Monu was wife of accused who was killed by accused. One thread was recovered from the spot Sessions Case No. 440274/2016 State Vs. Jaspal Page No.15/50 which was used for strangulation. It is further argued that prosecution has successfully proved the case by examining several witnesses and by way of PM Report. It is further argued that scientific evidence in the form of PM report also corroborates the case of state. It is further argued that deceased was seen alive lastly with accused by PW-2 Radhey Shyam who has categorically deposed that he had seen the deceased and accused going in their room at 11 p.m. and thereafter, at 2. a.m. he had seen the deceased lying in the room and accused was missing. It is further argued that accused after killing his wife had absconded and was declared proclaimed offender which also establishes that offence in question was committed by him. It is further argued that accused is liable to be convicted for the offence 302/34 IPC. ARGUMENTS OF DEFENCE:
20. On the other hand, the counsel for the accused Sessions Case No. 440274/2016 State Vs. Jaspal Page No.16/50 argued that disclosure statement of the accused is not admissible as per the Section 25 of the Evidence Act. It is further argued that the motive in this case has not been established. It is further argued that the chain of circumstances in this case is broken and incomplete and the circumstances of last seen is doubtful and false and the prosecution has failed to prove its case against the accused beyond any reasonable doubt and as such he deserves to be acquitted.
JUDGMENT RELIED UPON BY LD. APP FOR STATE.
i) Satpal Vs. State of Haryana, (2018) 6 SCC 610.
ii) Kishore Bhadke vs State of Maharashtra in Criminal Appeal No. 467 of 2010 dated 03.01.2017;
iii) Raja @ Rajinder vs State of Haryana in Criminal Appeal No. 486 of 2010 dated 10.04.2015.
JUDGMENT RELIED UPON BY Ld. DEFENCE COUNSEL.
i) Nizam & Anr. Vs State of Rajasthan (Citation Sessions Case No. 440274/2016 State Vs. Jaspal Page No.17/50 No. 2015 Law Suit(SC) 826) passed by Hon'ble Supreme Court of India,
ii) Anter Singh vs State of Rajasthan (Criminal Appeal No. 1105 of 1997, dated 05.02.2014).
21. Before going to the merits of the present case, it is relevant to quote here section 302 IPC:-
Section 302 in The Indian Penal Code
302. Punishment for murder.--Whoever com-
mits murder shall be punished with death, or 1[imprisonment for life], and shall also be li- able to fine.
22. Before adverting to the facts of the case, I would like to discuss the law with respect to circumstantial evidence when direct evidence is not available. There are numerous judgments on this aspect but I would not like to refer number of judgments. Law is well settled in this regard. Reference can be made to judgment titled Kishore Sessions Case No. 440274/2016 State Vs. Jaspal Page No.18/50 Bhadke vs State of Maharashtra in Criminal Appeal No. 467 of 2010 dated 03.01.2017 with Criminal Appeal No. 854 of 2010 & Criminal Appeal No. 11 of 2015" and "Raja @ Rajinder vs State of Haryana in Criminal Appeal No. 486 of 2010 dated 10.04.2015"
Relevant para of judgment Kishore Bhadke vs State of Maharashtra (based of last seen evidence) "16. The prosecution has also established the vital circumstances of last seen together. The evidence is given by PW11 & PW12 in particular. Their evidence will have to be juxtaposed with the evidence of PW-15, who has spoken about the telephone call received from Nalini and pursuant to which Raman left his house in her presence with relevant Sessions Case No. 440274/2016 State Vs. Jaspal Page No.19/50 documents/papers. The courts below have accepted her version as truthful and reliable. That evidence cannot be discarded on the basis of some minor discrepancies pointed out during the court of argument. The finding recorded by the two courts below with regard to PW15 about the truthfulness of her version is unexceptional. The evidence of PW11 corroborates the fact that deceased Raman had gone to bank for withdrawing cash amount and then proceeded to the house of Nalini accused No.1. He has deposed that Raman went inside the house of Nalini and saw accused No.2,3,4 and 6 standing near the cattle shed of Nitin Rai. While returning back, he saw accused No.5 standing near the water tank.
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32. In the case of Keshav (supra), the court held that in the case of circumstantial evidence, conviction can be recorded on the basis of motive. Further, the circumstance of last seen together becomes relevant if the death takes place shortly after accused and deceased were last seen together."
Relevant para of judgment Raja @ Rajinder vs State of Haryana (based on circumstantial evidence).
"9. From the aforesaid, it is clear as day that the Court is required to evaluate the circumstantial evidence to see that the chain of events have been established to see that the chain of events have been established clearly and completely to rule out any reasonable likelihood of the Sessions Case No. 440274/2016 State Vs. Jaspal Page No.21/50 innocence of the accused. Needless to say whether the chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted.
10. In the instance case, the circumstances that have been established by the prosecution are that the deceased had accompanied the accused-appellant, being called by him, from his house in the early part of the evening on the date of occurrence. The mother of the deceased, Kalawati, PW11, has deposed in that regard. Thereafter, from the material brought on record, it is clearly revealed that the appellant was seen at the tea stall with the deceased. The said fact has been deposed by Mahender, PW10. Thus, Sessions Case No. 440274/2016 State Vs. Jaspal Page No.22/50 from the aforesaid evidence, two facts are established, namely, the accused and the deceased had left the house of the deceased and were seen taking tea together at the tea stall. It is submitted by the learned counsel for the appellant that the last seen theory as advance by the prosecution is not acceptable in as much as the owner of the tea stall has not been examined. When the testimony of the aforesaid two witnesses deserve acceptance and receive corroboration from the other evidence on the record, no adverse inference should be drawn because of non-examination of the tea stall owner, who, as has been submitted by the learned counsel for the appellant, is a material witness. It is well settled in law that non-examination of a material Sessions Case No. 440274/2016 State Vs. Jaspal Page No.23/50 witness is not a mathematical formula for discarding the weight of the testimony available on record, if the same is natural, trustworthy and convincing. That apart, he was not such a witness who alone was the competent witness to depose about a fact and his non-examination would really destroy the version of the prosecution.
12. Another circumstance that has been proven is about the recovery of knife, blood-stained clothes and the ashes of the burnt blanket. The seizure witnesses Sukha, PW7 and Nanak, PW9 have proven the seizure. It is submitted by the learned counsel for the appellant that police had recorded the confessional statement of the accused-appellant at the police custody and thereafter, as alleged, had recovered certain things which really do Sessions Case No. 440274/2016 State Vs. Jaspal Page No.24/50 not render any assistance to the prosecution, for the confession recorded before the police officer is inadmissible. That apart, the accused had advanced the plea that the articles and the weapon were planted by the investigating agency. To appreciate the said submission in proper perspective, we may profitably reproduce a passage from State of UP v Deoman Upadhyaya, AIR 1960 SC 1125:
The expression, 'accused of any offence' in Section 27, as in Section 25, is also descriptive of the person concerned i.e. against a person, who is accused of an offence, Section 27 renders provable certain statements made by him while he was in the custody of a police officer. Section 27 is founded on the principle that even though the evidence relating to Sessions Case No. 440274/2016 State Vs. Jaspal Page No.25/50 confessional or other statements made by a person, while he is in custody of a police officer, is tainted and therefore, inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable in so far as it distinctly relates to the fact thereby discovered. Even though Section 27 is in the form of a provisio to Section 26, the two sections do no necessarily deal with the evidence of the same character. The ban imposed by Section 26 is against the proof of confessional statements. Section 27 is concerned with the proof of information whether it amounts to a confession or not, which lead to discovery of facts. By Section 27, even if a fact is deposed to as Sessions Case No. 440274/2016 State Vs. Jaspal Page No.26/50 discovered in consequence of information received, only that much of the information is admissible as distinctly relates to the fact discovered."
23. There is no dispute regarding the law laid down in judgment produced by defence. The main factor to be proved on the record is whether circumstantial evidence is such which is unbroken or whether chain is established or not. If the chain is found broken at any point of time, the accused is entitled for benefit of doubt but if the chain is unbroken then there is no escape for accused.
24. The argument of Ld. Defence counsel that there is no eye witness in this case who had seen accused committing the murder is devoid of any force. In the present case, the last seen theory has been brought on record by examination of PW-2 and other connecting evidence and thereafter, burden of proof Sessions Case No. 440274/2016 State Vs. Jaspal Page No.27/50 was discharged by the prosecution. So even though there is no direct evidence, does not mean that prosecution case suffer for the same.
25. Now I will deal regarding the chain of events and how the prosecution has been able to succeed in proving that same has not been broken coupled with fact that all evidence leads to one conclusion pointing out towards the guilt of the accused and commission of crime by him.
26. PW-1 SI Prahalad Swaroop had deposed regarding deposition of four sealed pulandas of present case and making of entry No. 386 in this regard was proved as Ex. PW-1/A.
27. PW-2 Sh. Radhey Shyam is the most material witness in this case. He is neighbour of accused. In his examination in chief, he specifically and categorically deposed that "In the year 2001, I was working as gas cylinder supplier in Neelkanth Gas Agency, Sector-9, Dwarka, New Sessions Case No. 440274/2016 State Vs. Jaspal Page No.28/50 Delhi. I was residing in a room alongwith my family as a tenant in a plot belonging to Sh. Shyam Sunder at village Bagdola. Accused was residing with his wife and a daughter aged about one year in the adjoining room in the aforesaid plot. He was also working in the year said gas agency. The name of the wife of accused was Monu. On 27th July or August 2001, the accused had returned from his duty at around 5/6 p.m. and started quarreling with his wife. I asked the accused not to quarrel with his wife and thereafter, the accused and his wife went to their room and I went to my room. At about 2 a.m., I woke up and came out from my room and saw that the room of the accused was locked from outside. I peeped from the window of accused and saw that his wife Monu was lying on the floor. The accused and his daughter were missing. Since it Sessions Case No. 440274/2016 State Vs. Jaspal Page No.29/50 appeared that the wife of the accused was dead, I alongwith my wife went to the police station for giving information. Police came at the spot and the lock of the room of accused was broken. When we went inside in the room of the accused with the police, the wife of the accused was found dead. My statement was recorded by the police."
28. Though this witness resiled on some points but in his cross-examination conducted by Ld. APP for the state, he admitted that accused had returned from his duty on 26.08.2001 and that lock of the room of accused was sealed and seized by police in his presence. He admitted his signatures at point A on seizure memo. He also admitted that accused and his wife had gone in their room at about 11 p.m. and further that he went to police station after 5 a.m. This witness was also confronted with his statement Ex. PW-2/A by Ld. APP for the state Sessions Case No. 440274/2016 State Vs. Jaspal Page No.30/50 wherein facts of consuming of liquor by accused and objecting the same by deceased /his wife is mentioned.
29. So his deposition clearly shows that he had seen accused and his wife going in their room at about 11 p.m. and as per his deposition in his chief examination, at about 2 a.m., he woke up and came out from his room and saw that the room of the accused was locked from outside. He peeped from the window of accused and saw that his wife Monu was lying on the floor. The accused and his daughter were missing. This shows that only accused was lastly with deceased at about 11. p.m. and when he woke up at 2. a.m, the door of accused was locked from outside and he was missing. If the crime had not been done by accused then there was no reason for him for absconding. He had deposed substantially against accused and he is last seen witness in the case.
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30. PW3 Ms. Sunita is wife of PW-2 Sh. Radhey Shyam, though this witness resiled from her previous statement and did not support the case of prosecution. However, in her cross-examination conducted by Ld. APP for the state, she admitted the fact that on 27.08.2001, in the early morning, he had seen that the room of accused was locked from outside. She further admitted that accused Jaspal was missing from his room after the night of 26/27.08.2001 and that police had come and had broken the lock of the room of accused and that when room of accused opened by police, he had seen that Monu wife of accused was lying dead on the floor in the room. So from testimony of this witness, the version of PW-2 has been corroborated that accused Jaspal was missing from his room after the night of 26/27.08.2019 and that room of accused was locked from outside and presence of accused with his deceased wife at the spot just before the death is Sessions Case No. 440274/2016 State Vs. Jaspal Page No.32/50 also proved.
31. Another material witness produced by prosecution is PW4 Dr. Lalit Kumar, Retd. CMO. In his examination in chief, he deposed that he conducted postmortem on the dead body of Monu. He proved the detailed postmortem report as Ex. PW-4/A. In his chief examination, he has given details of various external injuries on the body of deceased and the internal injuries have been well defined in P M Report. This witness further deposed that "All injuries were ante mortem and were of same duration. All ligature mark were also ante mortem and were caused by a ligature which correspond with the ligature produced by the police at the time of postmortem examination. Death was due to asphyxia following the strangulation caused by the ligature. Time since death was approximately 14-15 hours". From perusal of postmortem report, the manner and cause of death is Sessions Case No. 440274/2016 State Vs. Jaspal Page No.33/50 also clear and this piece of scientific evidence also corroborates the case of the prosecution. In cross- examination of this witness, only single suggestion was put to him which he denied and thus no dent could be created to his testimony of Ld. Defence counsel.
32. PW6 Retd. SI Ramesh Chand in his examination deposed that on receipt of information recorded vide DD No. 7A, he alongwith SI Rajesh Maurya reached at spot and he deposed further regarding investigation carried out in his presence by him and other police officers. He further specifically deposed that "On inspection of the dead body, I noticed that there were ligature marks on the neck of the deceased. One white colour plastic thread was found lying near the room". In his cross- examination, few suggestions were put to him which he denied and nothing contrary has come in his cross-examination also in favour of the accused. Sessions Case No. 440274/2016 State Vs. Jaspal Page No.34/50
33. PW7 Inspector Rajesh Maurya is also witness who had visited the spot with PW-6. Similar material facts have been deposed by him in his examination in chief. He has also deposed regarding ligature mark on the neck of the deceased and finding thread in the room. This witness also proved seizure memo with regard to the articles found on the body of deceased as Ex. PW-7/A, the seizure memo of thread was proved as Ex. PW-7/B, the sealed pulanda of thread was seized by Inspector Umesh Singh vide seizure memo Ex. PW-7/C, the seizure memo with regard to blood sample and cloths of deceased was proved as Ex. PW-7/D, the carbon copy of proceedings regarding disposal of unclaimed dead body were Ex. PW-7/E. Nothing contrary has come in his cross-examination conducted by counsel for accused.
34. PW8 ASI Nirmala is another important witness in this case who had recorded FIR in the present case and copy of same was proved as Ex. PW-8/A, her Sessions Case No. 440274/2016 State Vs. Jaspal Page No.35/50 endorsement on rukka as Ex. PW-8/B. By virtue of her deposition in the court, the registration of FIR on the basis of rukka sent to her in the present case stands duly proved.
35. PW9 ASI Jagbir Singh is another witness who had visited spot alongwith other police officials. He had also corroborated the fact of finding ligature mark on the neck of the deceased and finding thread near door in the room. In para No. 2 of his cross- examination, he admitted that accused was not present at the scene of crime.
36. PW10 ASI Yashpal Singh is a witness who had received information through complainant Radhey Shyam regarding lying of dead body of deceased in room. He had recorded said information in Roznamcha vide DD No. 7A and true copy of same was proved as Ex. PW-10/A. Nothing contrary has come in his cross-examination conducted by Ld. Defence counsel.
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37. Inspector Madan Pal was examined as PW-11. In his examination in chief, he deposed that he visited spot on 17.10.2001 and took measurements of spot at the instance of SI Rajesh Maurya and prepared rough notes. He proved the scaled site plan as Ex. PW-11/A. In his cross-examination, he deposed that "except taking measurements and preparing rough notes, I did not conduct any proceedings at the spot. No other question was put to him in his cross-examination by Ld. Defence Counsel.
38. SI Niranjan Lal was examined as PW-12. He is a witness who had executed the process U/s 82/83 Cr. P. C. against accused Jaspal at his native village and submitted his report in the court. He also deposed regarding recording of his statement and declaring of accused as P. O. So serving of process U/s 82/83 Cr. P. C. against accused Jaspal and declaring him proclaimed offender stands duly proved. Despite opportunity, this witness was not cross-examined. Sessions Case No. 440274/2016 State Vs. Jaspal Page No.37/50
39. PW13 SI Basant Kumar is another important witness in this case who had arrested the accused. In his examination in chief, this witness deposed that accused Jaspal was apprehended by him from village Nagla Daman, PS-Sikanderpur Vaish, District - Kashganj, UP U/s 41.1 (c) Cr. P. C. as the accused was proclaimed offender. The arrest memo, personal search memo and body inspection memo were Ex. PW-13/A, PW-13/B and PW-13/C and copy of DD No. 5 dated 01.09.2015, DD No. 5 dated 02.09.2015 and copy of kalandra were Ex. PW-13/D, PW-13/E and PW- 13/F. He was very material witness who had arrested the accused but surprisingly, despite grant of opportunity, this witness was not cross-examined by Ld. Defence Counsel.
40. PW14 HC Mukesh Kumar is a witness who had taken the copies of FIR of present case to the office of Senior Officers of police and Ilaka Magistrate as Special Messenger immediately after registration of Sessions Case No. 440274/2016 State Vs. Jaspal Page No.38/50 FIR.
41. PW15 HC Vinay Kumar deposed that he was posted as photographer in Mobile Crime Team and he alongwith other members of crime team reached at spot where dead body of lady was found lying. The photographs of scene of spot taken from different angles were proved as Ex. PW-15/A1 to PW-15/A3 and negatives of same were Ex. PW-15/B1 to PW-15/B3.
42. PW16 ASI Om Veer Singh is another material witness of the prosecution who deposed that on 21.09.2015, accused Jaspal was arrested by IO / Inspector Dharambir Singh after permission of the court. The arrest memo of accused Jaspal was proved as Ex. PW-16/A, his personal search memo as Ex. PW- 16/B and his disclosure statement as Ex. PW-16/C. This witness was also put only a single question in cross-examination by Ld. Defence counsel and he failed to create any dent in his testimony.
43. PW17 Ct. Sandeep is witness who joined Sessions Case No. 440274/2016 State Vs. Jaspal Page No.39/50 investigation of present case with IO/Inspector Dharambir Singh on 22.09.2015 and accused was interrogated by IO in his presence. He had proved the disclosure statement of accused as Ex. PW-17/A.
44. Retd. ACP Umesh Singh was examined as PW-
18 who deposed that on 27.08.2001, on receipt of information regarding present case, he alongwith his staff reached at spot and conducted investigation at spot. He deposed that he recorded statement of Sh. Radhey Shyam and prepared rukka Ex. PW-18/A. The site plan was proved as Ex. PW-18/B, application for autopsy as Ex. PW-18/C, Form 25-35(B) as Ex. PW- 18/D, statements of Sh. Radhey Shyam and Sunita as Ex. PW-18/E and PW-18/F. In his examination in chief, this witness has also deposed that "The lock was broken with the help of iron rod and I went inside the room, where the lady was found in dead condition. I inspected the dead body and noticed that there were some ligature marks Sessions Case No. 440274/2016 State Vs. Jaspal Page No.40/50 on the neck. ..... I seized the thread which was lying on the spot. The said thread was suspected to be used in strangulation of the deceased. I sealed the thread in a pullanda with a seal of RK". In his cross-examination, he deposed that whatever, Radhey Shyam told him, he recorded it in his statement.
45. Last witness produced by prosecution is PW19 Inspector Dharambir Singh. In his examination, in chief, he deposed that case file was assigned to him and accused was arrested by him after permission of court in which he was produced on production warrant. He deposed that an FIR U/s 135 Electricity Act vide No. 92/15 was found registered against accused and relevant documents were proved as Ex. PW-19/A. In his cross-examination, he deposed that "The accused had led police party including me to the area where the incident of the present case was happened but due to the lapse of Sessions Case No. 440274/2016 State Vs. Jaspal Page No.41/50 time of about 14 years and change of the structure of the building, the accused could not identify or point out the exact place of incident. No public person was joined at that time. ..... I have mentioned in the charge sheet that earlier the accused was absconded because he was declared PO. I have mentioned that accused Jaspal had strangulated his wife on the basis of PM report and the material available on the file in the previous charge sheet. At the time of disclosure statement of accused, he was in police custody".
46. So all the police witnesses have deposed as per their role in the investigation of present case. Last seen witness Sh. Radhey Shyam has also supported the case of prosecution. Ld. Defence counsel has failed to create any dent in the deposition of prosecution witnesses. Moreover, Sessions Case No. 440274/2016 State Vs. Jaspal Page No.42/50 accused has not led any defence evidence contrary to the case of prosecution. No cogent and believe worthy explanation has been furnished by accused for his absconding from his room and for a long period of 15 years, if he was innocent and if he has not killed his wife, then it is not made out as to why he had not come back to see his wife and absconded for such a long period. Moreover, the case law relied upon by the defence i.e. Nizam Vs. State of Rajasthan and Anter Singh Vs. State of Rajasthan (supra) are of no help for the accused as the same are on different footing and are not applicable to the facts of the present case.
47. It is pertinent to mention here that no evidence has been led by accused for his false implication, if any. The doctor who conducted post mortem opined that death was due to strangulation. Estimation of time elapsed since death matched with that as deposed by PW-2 Radhey Shyam. Moreover, body Sessions Case No. 440274/2016 State Vs. Jaspal Page No.43/50 was recovered in the vicinity, where deceased was last seen with accused. Further appellant was absconding after occurrence till his arrest are additional incriminating factors completing links in the chain of circumstances.
48. Ld. APP for the state has relied upon judgment titled as Satpal Vs. State of Haryana, (2018) 6 SCC 610 wherein it was held that "Last seen theory is a weak kind of evidence by itself to found conviction upon the same singularly -
But when it is coupled with other circumstances such as time when deceased was last seen with accused, and recovery of corpse being in very close proximity of time, accused owes an explanation under S. 106, Evidence Act, with regard to circumstances under which death may have taken place - If accused offers no explanation, or furnishes a wrong explanation, absconds, motive is Sessions Case No. 440274/2016 State Vs. Jaspal Page No.44/50 established, and there is corroborative evidence available inter-alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same - If there be any doubt or break in the link of chain of circumstances, benefit of doubt must go to accused - Each case will therefore have to be examined on its own facts for invocation of the doctrine". Above judgment is fully applicable to the facts of the present case.
49. From the abovesaid observations, though there is no direct evidence regarding the murder of deceased by the accused but from the perusal of testimonies of the witness recorded in the court and going through the exhibits i.e. seizure memos, Post mortem report and other evidences produced by Sessions Case No. 440274/2016 State Vs. Jaspal Page No.45/50 prosecution, the connectivity of accused with the alleged incident has been established in the circumstances where no explanation has been brought on record by the accused to show that when he parted the company of deceased after having seen lastly the accused in the company of the deceased and that too in the room where deceased and accused were residing together. It is the case of prosecution that only the accused and his wife were residing in said room with their children of one year and as per deposition of witnesses, there is nothing to show or suggest that any entry of any stranger or third person in the room of accused and in these circumstances, the onus was on accused to explain special reason for his absconding and as to why he had not raised any hue and cry after knowing about the death of his wife. It is also incumbent upon the accused as to why he had not come forward to see his wife even in the hospital and to perform his Sessions Case No. 440274/2016 State Vs. Jaspal Page No.46/50 obligations being husband and last rites, if he was innocent. It has come on record and proved by prosecution that cremation of deceased was performed by the police at Punjabi Bagh Crematorium as the dead body of deceased remained unclaimed and the relevant documents were proved as Ex. PW- 7/E.
50. Oral or direct meticulous evidence has come on record against the accused. It is further observed that prosecution has also established the use and recovery of thread in murder of deceased by accused.
51. Moreover, PW-2 Sh. Radhey Shyam is the last seen witness of the case as he had seen accused and his wife going in their room at about 11 p.m. and as per his deposition in his chief examination, at about 2 a.m., he woke up and came out from his room and saw that the room of the accused was locked from outside. He peeped from the window of accused and Sessions Case No. 440274/2016 State Vs. Jaspal Page No.47/50 saw that his wife Monu was lying on the floor. The accused and his daughter were missing. This shows that only accused was lastly with deceased at about
11. p.m. and when he woke up at 2. a.m, the door of accused was locked from outside and he was missing. If the crime had not been done by accused then there was no reason for him for absconding. Deposition of PW-2 in this regard is very material and it suggests that it was only the accused and no other person who had committed the murder of deceased Monu in between 11 p. m. to 2 a. m.
52. Ld. APP for the state has drawn attention of the court towards the post mortem report Ex. PW-4/A and argued that as per P M Report, the date and hour of starting autopsy is mentioned as 27.08.2001 at 2.15 p.m. and time of concluding autopsy is mentioned as 3.25 p.m. and the time since death as per P. M. report is approximately 14 to 15 hours meaning thereby the murder of deceased was caused Sessions Case No. 440274/2016 State Vs. Jaspal Page No.48/50 exactly between 11. p.m. to 2. a.m. This piece of evidence also corroborates the version of PW-2 who had seen accused and deceased going in the room lastly at 11. p.m. on the date of incident. Furthermore, the PM report also suggests that all ligature mark were also ante mortem and were caused by a ligature which correspond with the ligature produced by the police at the time of postmortem examination. So it is established that the thread seized by police during investigation from spot was used in the murder of deceased.
53. So from above discussion, the commission of crime by the accused and causing murder of deceased Monu stand duly proved. Witnesses have duly supported the case of prosecution and no dent could be created in their testimonies. The unbroken chain of sequence of events leading to murder of deceased has been duly proved in this case by prosecution.
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54. Thus, on all counts, guilt of accused has been duly proved beyond any doubt. The accused Jaspal is held guilty for commission of murder of his wife Monu and is convicted for the offence punishable under Section 302 IPC.
55. Case property be confiscated to State after expiry of period of appeal. Bail bonds and surety bonds are discharged. Copy of judgment be supplied to convict free of costs.
56. Be put up for arguments and order on sentence Digitally on 03.09.2019.
signed by AJAY AJAY Date:
GOEL GOEL 2019.08.31 15:02:11 +0530 Pronounced in the open court. (AJAY GOEL) Dated: 30.08.2019 ASJ/Special Judge (NDPS) Dwarka Courts/New Delhi.
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