Delhi District Court
State vs . on 18 April, 2012
IN THE COURT OF SH. RAKESH TEWARI ASJVI(OUTER),
ROHINI COURTS, DELHI
SC NO.187/10
FIR NO. 58/07
U/S 302/201/34 IPC
PS Binda Pur
Unique Case ID No. : 02404R0054742008
State
Vs.
1. Anil Kumar Goel s/o Rajender Pd. Goel
r/o S58A, Vijay Vihar, Binda Pur, Delhi.
2. Rajender Pd. Goel s/o Late Sh. Dal Chand
r/o S58A, Vijay Vihar, Binda Pur, Delhi.
3. Smt. Santosh Goel w/o Rajender Pd. Goel
r/o S58A, Vijay Vihar, Binda Pur, Delhi.
4. Sanjeev Kumar s/o Padam Jain
r/o AG1/124A, Vikas Puri, Delhi.
5. Smt. Vijay Laxmi @ Lata Jain w/o Sanjeev Kumar
r/o AG1/124A, Vikas Puri, Delhi.
Date when committed to the court of Sessions :09.04.2008
Date when case reserved for judgment : 12.04.2012
Judgment pronounced on : 18.04.2012
SC No.187/10 Page 1/119
JUDGMENT:
1. The case of the prosecution in brief is that on 03.10.2007, an information was received at the PS Binda Pur from PCR that one woman has committed suicide between premises No. S65 to 70, Vijay Vihar, and the information was given to PCR from telephone No.25631726 and the information was recorded in DD No.21A and was marked to SI Dharampal for inquiry, who reached H.No.S 58/A, Vijay Vihar, Uttam Nagar, Delhi, along with the staff and at the ground floor of the said house, in the first room, deceased Sapna Goel w/o Anil Kumar Goel was found and preparation for her last rites was almost complete and in laws as well as parental side relatives, such as, mother, brother and other relatives of the deceased were present there and on inquiry, it transpired that Rajender Goel was the father in law, Anil Kumar Goel was the husband, who informed that said deceased Sapna, in the morning, had gone to the roof for laying the wet clothes for drying and she felt giddy, due to which she fell down and died and the said SI also made inquiry from the brother, mother and relatives of the deceased, who told that in laws of the deceased Sapna Goel had also informed them the same facts regarding the death of the deceased and thereafter the SI called a private photographer who took the photographs of the face of the deceased, the SI recorded the statements of the witnesses and in the meantime, the in laws side relatives of the deceased tried their level SC No.187/10 Page 2/119 best to waive off the postmortem examination and gave a written application to that effect to the ACP, Tilak Nagar, but the said ACP declined the application and ordered for the postmortem examination on the dead body to be conducted and that the parental side relatives got recorded their statements believing the facts as told by in laws of the deceased earlier and that on 04.10.2007, the autopsy on the dead body of the deceased was got conducted at DDU hospital and viscera was preserved and the clothes of the deceased were also preserved by the doctor and thereafter the report of the autopsy surgeon was awaited and further inquiry of the case, by the orders of the senior police officials, was entrusted to Inspr. P.C. Maan, SHO of PS Uttam Nagar, as there were oral complaints against SI Dharampal.
2. During the inquiry conducted by the said Inspector, it transpired that deceased was never ill or suffering from any disease and that on 17.10.2007, the mother of the deceased namely Smt. Veena Goel, gave a complaint in writing containing in four pages, written on both the sides, to the police.
3. In the said complaint, the complainant mother of the deceased had written that deceased was initially named as Sandhya Goel whose marriage was performed on 23.04.2000 with Anil Goel @ Sanjay Goel s/o Sh. Rajender Goel and her name was changed as SC No.187/10 Page 3/119 Sapna Goel, who was residing along with her husband, her daughter aged about 6 years and son aged about 4 years, her father and mother in law at S58A, Vijay Vihar and that on 03.10.2007, she (the complainant) received a phone call from the younger sister in law of the deceased at about 9.20 a.m, to the effect that the deceased was ill and was serious and they (the parental side) were requested to reach at once and thereafter the complainant along with her son Gulshan reached the matrimonial home of the deceased within 15 minutes and it transpired that the deceased had been shifted to Gupta Nursing Home and accordingly, they also reached the said nursing home, where they came to know that deceased had expired and at that time, dead body of the deceased was on a stretcher outside the hospital, due to which the complainant lost her senses and started weeping and father of the complainant namely Sh. Tara Chand Gupta, who was residing at Rohini, was also informed by Anil Goel on phone regarding the ill health of the deceased and said father of the complainant namely Tara Chand also reached there along with mother of the complainant and they all tried to know the circumstances and cause of the death of the deceased, on which the father in law of the deceased namely Rajender Goel informed that deceased had gone to the roof for drying the wet clothes where she felt giddy and fell down and died and he also informed that when the said incident happened, at that time both the children of the deceased SC No.187/10 Page 4/119 had gone to the school and the husband of the deceased namely Anil, who was having a chemist shop nearby, had also gone to his shop, the mother and father in law of the deceased had gone for sugar test and at the time when father of the complainant namely Tara Chand Gupta reached there, then younger son in law of Rajender Goel namely Sanjeev told Sh. Tara Chand Gupta that they have caused delay in reaching there and he brought the articles required for the cremation and last rites of the deceased and asked the parental side relatives of the deceased to take the dead body for cremation at the cremation ground. The complainant has further written that her father namely Tara Chand Gupta had reached there at about 10.30 a.m. without any delay, but said Sanjeev was insisting and asking her father to take the dead body for cremation as early as possible, on which Tara Chand Gupta protested by saying that till the time the two brothers of the deceased would not arrive, the dead body would not be allowed to be taken and in the meantime, police reached there as someone had given a call to the police from PCO that the said death of the deceased was not natural and police stopped last rites of the deceased and informed regarding the autopsy to be conducted on the dead body. On this, the other parental side relatives of the deceased suggested that as the deceased had already expired, there is no use of insulting the dead body by its postmortem examination. SC No.187/10 Page 5/119
4. It is further written in the complaint by the mother of the deceased that Rajender Goel told the IO namely Dharampal not to go for postmortem examination, on which the said IO got recorded a letter addressed to the ACP to waive off the postmortem examination, on which signatures of some other persons were obtained and that she along with other parental side relatives of the deceased also signed the said request letter and some persons took the said letter to the ACP, Tilak Nagar for taking the permission to waive off the autopsy and at that time, 15 persons from both the sides had gone to the office of ACP, but the ACP insisted on the autopsy as the deceased was only 30 years old and she died all of a sudden nor the deceased was suffering from any disease, on which the father of the complainant namely Tara Chand Gupta agreed with the ACP and came back to Vijay Vihar at about 4 p.m and asked the IO SI Dharampal to take the body to the mortuary, but it transpired that Sh. Rajender Goel, who was retired police official, was not present there and informed Anil Goel, husband of the deceased, on mobile phone that he (the father in law) was trying to get the postmortem examination waived off and asked the IO SI Dharampal to remain at the spot and also informed that he was talking to higher police officials and when it was about 8 p.m, again Sh. Tara Chand Gupta asked the IO not to withhold the dead body there and take the same for autopsy and on this, the IO SI Dharampal took the dead SC No.187/10 Page 6/119 body to the mortuary of DDU hospital.
5. It is further mentioned in the said written complaint that on 04.10.2007, at about 9.30 a.m, IO SI Dharampal reached the house of the complainant at New Mahavir Nagar and told her to accompany him to the DDU hospital so that the postmortem examination may not be delayed and he also informed that he had prepared the application for autopsy and asked her to sign the same and in that hurry, without going through the said papers prepared for the postmortem examination, the IO got their signatures on the same and also assured that if, in the autopsy, report regarding natural death is not reported, the said papers would be torn and assured them not to worry and on 04.10.2007, the autopsy on the dead body was conducted and the SI informed them that the report of the autopsy would be available after about 8 or 10 days and gave the dead body to them for cremation and after cremation, the father of the complainant came back to the matrimonial home of the deceased, when the complainant told her father that some ladies were whispering that the deceased had committed suicide, on which the father of the complainant and his younger brother Sh. Kailash Chand Gupta called Rajender Goel, the father in law of the deceased, and informed him that truth would be revealed after the autopsy report and that was why, Sh. Rajender Goel should disclose the truthful cause of the death of the deceased and when this SC No.187/10 Page 7/119 question was insisted again and again, said Rajender Goel admitted that deceased Sapna had hanged herself by the hook of the ceiling fan in the room at the second floor with the help of a yellow chunni after climbing at the cooler and thus, committed suicide and when said parental side relatives inquired from him as to why the said fact was not told to them or to the police earlier, the said Rajender Goel could not answer the said question and that the complainant had full certainty that deceased had not committed suicide but she had been murdered, which is supported by the following facts:
(1) That her daughter, the deceased, was of very calm and quiet nature, who could not have dared to commit suicide.
(2) That her daughter, the deceased, had given her a telephone call on 02.10.2007 at 8.30 p.m, and on the same day, at about 11 p.m, to said Sh. Tara Chand Gupta, whereby the deceased had informed that she would be coming to see Sh. Tara Chand Gupta after her children return back from the school, but she expired.
(3) That on 03.10.2007, they (parental side) were told that the deceased died while drying the wet clothes on the roof as she felt giddiness and on 04.10.2007, after the cremation of the deceased, they were informed that deceased had committed suicide.
(4) That Sanjeev, younger son in law of Rajender Goel, had SC No.187/10 Page 8/119 arranged the material required for last rites as soon as her father had reached there and said Sanjeev was insisting for the cremation without delay and as to what was the cause of showing such a hurry for the cremation of the deceased.
(5) That the person who informed the police at phone number 100 regarding the death of the deceased was certainly knowing that the death was not natural.
(6) That after the decision of the ACP to go for the postmortem examination, the act of Rajender Goel in trying for waiver of the postmortem examination till late night and after their insistence only the dead body was removed by the IO at about 8 p.m and by that time, said Rajender Goel had not returned to the spot and continued with his efforts for the waiver of the postmortem examination.
(7) That they were told that at the time when deceased committed suicide, no one was present at the house and if it was so, then what was the need for the deceased to go at the second floor for committing suicide, who would have committed the same at the first floor in her room itself.
(8) That they were informed that deceased had hanged herself by the hook of the ceiling fan with the help of a yellow chunni after climbing the cooler, but it was not possible for a person to remove SC No.187/10 Page 9/119 the cooler by her feet from underneath her feet to commit suicide.
(9) That they had also come to know that Anil Goel, the husband of the deceased, had already opened his shop at 8.30 a.m on 03.10.2007, whereas, as usual, he used to open the shop at 10 a.m. (10) That the younger sister in law of the deceased namely Lata and her husband, who were residing at Vikas Puri, Delhi, were frequently visiting the matrimonial house of the deceased and said Ms. Lata had informed the complainant that on 02.10.2007, up to 11 p.m, she and her husband were also present there and they had taken food there also.
(11) That the deceased was brought up by her maternal grand parents from the time when she was three months old and got her married also and deceased had told the complainant, her mother, that her in laws wanted the house situated at Rohini of her maternal grand father and the in laws were creating a pressure for the same over deceased Sapna, but the maternal grand parents of the deceased were not informed regarding the same as the father of the complainant may suffer injury on heart and prior to this also, at the time of engagement ceremony, it was insisted by the in laws of the deceased to carry out the engagement with a gold guinea and the said demand was fulfilled after selling the gold bangles by the complainant without telling her parents and her father was meeting SC No.187/10 Page 10/119 the demands of the in laws of the deceased as per his capacity.
6. It is further mentioned in the complaint that on 14.10.2007, when last rites were being performed after the death of the deceased, the parental side relatives of the deceased had reached her matrimonial home and insisted for knowing the reason with regard to death of the deceased, on which the husband, the father in law and younger son in law of the father in law of the deceased refused to tell the reason of the death of the deceased and younger sister in law and mother in law of the deceased had informed them that she had died after feeling giddiness while drying the wet clothes on the roof and that there was exchange of hot words at that time between the two sides and police was informed at phone number 100 for the safety of parental side relatives of the deceased.
7. It is further mentioned in the complaint that deceased had not died her natural death but had been murdered by her in laws and she is certain that after the autopsy report, the truth will come on the surface and in the said murder, the husband namely Anil Goel, father in law namely Rajender Goel, mother in law namely Smt. Santosh Goel, younger sister in law namely Ms. Lata and younger brother in law of the said husband namely Sanjeev and father of said Sanjeev namely Padam Chand Jain are involved and it was requested to investigate the matter.
SC No.187/10 Page 11/119
8. During the further inquiry, the said SHO on 19.10.2007, inspected the spot and prepared a site plan without scale, and at the second floor, photographs of a broken iron door were taken and same was seized and on 25.10.2007, autopsy report of the deceased was received along with 42 photographs, as per which ten external injuries were found on the dead body of the deceased and time of death was found in the intervening night between 2nd and 3rd October, 2007 at about 2 a.m and last meal was taken by the deceased about 4/5 hours before the death and cause of death was given as asphyxia as a result of sustained and forceful pressure over the neck with the help of ligature which is sufficient to cause the death in ordinary course of nature and PM findings are consistent with assault prior to death and all injuries were antemortem and possibility of homicide could not be ruled out and the viscera was got preserved and in these circumstances, offences u/s 302/201/34 IPC were disclosed and accordingly the FIR was got registered and investigation was entrusted to the said SHO himself.
9. During the investigation, he recorded the statements of the witnesses and on 27.10.2007, accused Anil Kumar and Rajender Pd. Goel were arrested, who made their disclosure statements with regard to killing of the deceased with the help of a chunni as the deceased has refused to tell her maternal grand parents with regard to the said house at Rohini to be given to the accused and the said SC No.187/10 Page 12/119 chunni and an iron rod, with the help of which the said iron door was broken in order to create a false scene of the deceased having committed suicide, were got recovered and same were seized and it is mentioned in the charge sheet that the said chunni was being sent for opinion of the autopsy surgeon and scaled site plan was got prepared.
10. During further investigation, the viscera was sent to FSL and the statement of the daughter of the deceased was recorded, as per which, on the night intervening between 2nd and 3rd October, 2007, when she was sleeping, at that time the accused were present at the house and on the following morning, they were also present and she and her brother, the son of the deceased, were dressed up for school by her Lata aunt and her grand mother and they told about her mother, the deceased, that she was sleeping as she was having headache and it is further mentioned in the charge sheet that accused Sanjeev Jain, Ms. Lata Jain and Smt. Santosh Goel fled away, who were subsequently granted bail by the Hon'ble High Court on 16.01.2008 and they were formally arrested in the case and call details of the mobile phones of the accused were placed on record to establish that location of the accused was at the spot and the charge sheet was filed. Subsequently, FSL result was also placed on the record.
SC No.187/10 Page 13/119
11. On the basis of the said evidence and the charge sheet my Ld. Predecessor, vide his order dated 17.11.2009, framed charge against the accused persons u/s 302/201/34 IPC, to which they pleaded not guilty and claimed trial.
12. The prosecution, in order to prove its case, has produced as many as 25 witnesses which have been discussed below.
13. The statements of the accused u/s 313 Cr.PC were recorded wherein they pleaded their innocence and denied the incriminating evidence against them as false and did not prefer to lead any defence evidence except that under the amended provision of 313 Cr.PC, they have filed their written statement which is Ex.D1 and a medical prescription with regard to the deceased Ex.D2 in their defence.
14. I have heard Ld. APP for the State, Sh. Jitender Sethi, Advocate for all the accused and perused the record.
15. PW1 HC Rampal Singh proved the DD No.21A dated 03.10.2007 and copy of the same is Ex.PW1/A and in his cross examination, he answered that he was only directed to produce the record and as such, he could not say if the DD was ante timed or not because he did not record the same. PW2 Ct. Rajender took the rukka for getting the FIR registered to the PS Binda Pur and came back to PS Uttam Nagar with the copy of FIR and rukka and handed SC No.187/10 Page 14/119 over the same to the SHO of PS Uttam Nagar. PW3 SI Shodan Singh was the duty officer who proved the FIR as Ex.PW3/A and his endorsement on the rukka as Ex.PW3/B and he further proved DD No.35A and 36A, both dated 25.10.2007, as Ex.PW3/C and Ex.PW3/D and in his cross examination, he replied that there was no relative of the deceased present at the time of registration of FIR and it took 40 minutes in writing the FIR. He further admitted that there was a cutting in mentioning the date and the day Thursday has been cut and Wednesday has been rewritten in the FIR. PW6 Ct. Krishan Kumar took the viscera of the deceased and deposited the same with FSL Rohini. PW8 Ct. Jaipal Singh was the special messenger who delivered the copies of FIR to the concerned MM and Senior Officers of the Police. PW10 HC Azad Singh accompanied the initial EO SI Dharampal and shifted the dead body of the deceased to mortuary DDU hospital and deposited the same at about 8 or 8.15 p.m and he deposed regarding the postmortem examination conducted on 04.10.2007 by Dr. L.C. Gupta, who gave him clothes and viscera of the deceased along with sample seal which he handed over to the EO and same were seized vide memo Ex.PW10/A and Ex.PW10/B. PW12 Sh. Sanjay Ahuja was the photographer who was called at S58A, Vijay Vihar, to take the photographs of the dead body of the lady and he proved the same as Ex.PW12/A1 and A2. PW13 Ct. Suresh deposed that on 19.10.2007, he along with the SC No.187/10 Page 15/119 Inspr. P.C. Maan went to the roof of the said house where an iron door was lying of which the photographs were taken and same was seized vide memo Ex.PW13/A and he proved the photographs as Ex.PW13/B to D and the iron door was identified as Ex.S1 of which the bolt was broken and in his cross examination, PW13 replied that FIR was already registered by that time and the number of the FIR was mentioned on the memo Ex.PW13/A when he signed the same and he was confronted with the memo Ex.PW13/A where no FIR number was mentioned and it was prepared vide DD No.21/A dated 03.10.2007. He further answered that taking of photographs of the said door was mentioned in the memo and again he was confronted with the said memo where the said fact was not found mentioned. He further answered that his statement was recorded on the same day when the memo was prepared and he was confronted with his statement Ex.PW13/DA where the date was mentioned as 27.11.2007. He replied that he had not entered the room, outside of which the door was lying and the door was not sealed. PW14 HC Kailash Chand proved the receipt of complaint on 17.10.2007 in the complaint register at Sl.No.2101 and the entry to that effect as Ex.PW14/A and in his cross examination on behalf of the accused, he admitted that except entry No.2092 and 2101 dated 17.10.2007, all other entries were not in his hand and the said two entries were in different pen. He answered that he had not obtained the signatures SC No.187/10 Page 16/119 of complainant Smt. Veena Goel in the complaint register against the entry Ex.PW14/A and on the basis of the said complaint, DD No.40A was recorded on the same day i.e. on 17.10.2007 and the said complaint was handed over to the SHO on the same day and he was not aware if any action was taken by the SHO on the said complaint or not. PW15 M.N. Vijayan was the Nodal Officer of the telephone and mobile company and he proved the call details of mobile phones bearing number 9213576191 in the name of Padam Chand Jain, 9212596893 in the name of Anil Kumar, 9213824525 in the name of Sumit s/o Lal Chander, 01165875739 in the name of Sanjeev Jain and 01165934578 for the period between 01.10.2007 to 16.11.2007 as Ex.PW15/A to Ex.PW15/E and he proved the certificate u/s 65B of the Evidence Act as Ex.PW15/F and in his cross examination on behalf of the accused, he replied that the said company had no voice recording with regard to call details submitted by him for the said dates.
16. PW16 SI Jagat Singh was the PCR official at the PHQ, New Delhi who proved the information received regarding hanging of a lady in the area of Vijay Vihar, Uttam Nagar and he proved the PCR form to that effect as Ex.PW16/A and in his cross examination on behalf of the accused, he admitted that Part 2, Part 3, Part 4 and the developments on the backside of the said form as written, were recorded by different officials of PCR in the official discharge of SC No.187/10 Page 17/119 their duties and the said portion is exhibit from point C to C in Ex.PW16/A. PW21 HC Anil Kumar was the MHC(M) who deposited the iron gate in the Malkhana and proved the entry as Ex.PW21/A but he did not obtain the signatures of the SHO in the entry as per his cross examination on behalf of the accused. PW22 Ct. Raj Kumar was the member of the crime team who took the photographs on 19.10.2007 of the broken door, the fridge and the iron hook from different angles and he proved the negatives as Ex.PW22/A1 to A6 and printouts of the same as Ex.PW22/B1 to B6 and in his cross examination on behalf of the accused, he replied that his statement was recorded on the same day by the said SI Dharampal of PS Uttam Nagar and thereafter his statement was never recorded with regard to this case. He denied the suggestion that his statement was recorded on 21.01.2008 and he was confronted with his statement Ex.PW22/DA where the date was recorded as 21.01.2008 by Inspr. P.C. Maan. He further replied that they reached the spot at about 3.30 p.m. and some family members of the said house were present there but no other public person was present and the said door was seized by the SI in his presence and that no other article was lying in the room except the cooler.
17. PW19 Inspr. Dharmender Singh deposed that on 27.10.2007, he was posted at PS Uttam Nagar as SI and joined the investigation of the case and at about 6 p.m, he deposed regarding arrest of SC No.187/10 Page 18/119 accused Anil Kumar and Rajender Pd. at the instance of the brother of the deceased namely Gulshan Kumar at Uttam Nagar Bus Terminal and both were arrested and a mobile phone was recovered from the possession of accused Anil which was seized and on 28.10.2007, two days PC remand of the said two accused was obtained from the concerned court and during the said period, the accused made their disclosure statements and then they got recovered one iron rod from ganda nala near the Chemist shop of accused Anil and pointing out memo and the recovery memo of the same was prepared after sealing the same with the seal of PCM and thereafter accused Anil got recovered a chunni from near the said drain, Kakrola turning which was also sealed with the said seal and seized and thereafter he identified the mobile phone as Ex.P1, chunni as Ex.P2 and iron rod as Ex.P3. In his cross examination on behalf of the accused, the said witness replied that he was not aware if on 27.10.2007, accused Anil Goel and Rajender Goel came to the PS along with two children at about noon time when custody of one of the child was given to maternal grand mother in the PS itself and that he was on duty in the PS from 8 a.m till 8 p.m. He further replied that said Gulshan Kumar came of his own to the PS but an information was sent at his house but no DD entry was made with regard to the same in the PS. No independent public person was joined at the time of arrest and recovery, as per his further answer. SC No.187/10 Page 19/119 It is further admitted by him that the seal of PCM was not handed over to any public person including PW Gulshan nor any public person was joined in the proceedings while recording the disclosure statement of the accused. He answered that iron rod was recovered at about 7 p.m on 29.10.2007 and no recovery of any article was made on 28.10.2007 and the place from where the recovery of rod was effected was a thickly populated area. He further answered that PW Gulshan was not summoned by the police on 29.10.2007 also, but he came of his own in the PS. He answered that document writing was done at the spot while standing there at the time of the said recovery. He admitted that the chunni and the iron rod were the articles which were readily available in the market. He admitted that he had not made any DD entry in the PS with regard to the recovery of chunni and the iron rod.
18. PW20 Retd. SI Dharampal deposed that on 03.10.2007, DD No.21A, Ex.PW1/A, regarding hanging of a lady at Vijay Vihar was entrusted to him and he reached at S58A, Vijay Vihar, where he found one lady lying dead on the floor and many persons were present and the preparation for taking the dead body for cremation was going on and family members of the deceased from both the sides were present including her husband Anil, father in law Rajender Pd. and others and that mother of deceased namely Veena Goel and brothers namely Jatin and Gulshan were also present and SC No.187/10 Page 20/119 that he stopped them to go for the cremation and made inquiries about the cause of death from them. He further deposed that accused Rajender Pd. Goel present in court disclosed that she died due to giddiness on the floor while drying clothes on the roof and that he inspected the spot and asked for the postmortem examination on the dead body but both side relatives of the deceased refused for the same and members of the family of both the sides moved an application already Ex.PW7/A before ACP, Tilak Nagar for waiving off the postmortem examination, who rejected their application and directed him to get the postmortem conducted on the dead body and when he tried to inspect the dead body, the in laws of Sapna Goel objected to it on the pretext of dignity and modesty being the female dead body and that keeping in view the circumstances, he got the face of the deceased photographed which are Ex.PW12/A1 to A3 and sent the dead body for autopsy. He further deposed that on 04.10.2007, he prepared the inquest papers Ex.PW20/A to Ex.PW20/D and already exhibited as Ex.PW11/M, Ex.PW11/A, Ex.PW11/B, Ex.PW18/A, Ex.PW4/DA, Ex.PW7/B, Ex.PW20/E to Ex.PW20/G and that in their statements, none of the family members of parental side of the deceased alleged any foul play and the autopsy was got conducted on the dead body which was handed over to her parental side relatives. He further testified that after the autopsy, the doctor had handed over sealed parcels containing SC No.187/10 Page 21/119 clothes, blood sample of the deceased with sample seal and the same were taken into possession vide memo Ex.PW10/A and the autopsy surgeon also handed over one wooden box containing viscera of the deceased which was seized vide memo Ex.PW10/B and thereafter he inspected the entire house and the roof of the said house but he did not find anything incriminating against the accused. He further deposed that he went to the autopsy surgeon for obtaining PMR on 11.10.2007, 12.10.2007, 16.10.2007, 17.10.2007 and 18.10.2007, but the same was not ready and the DD numbers 41B, 33B, 34B, 37B and 60B were recorded with regard to the same and the same are Ex.PW20/H1 to H5 and thereafter the file was marked to some other person and he handed over all the documents to Inspr. P.C. Maan.
19. In his cross examination on behalf of the accused, PW20 replied that he reached the spot at about 1 p.m and came to know that deceased was taken to Gupta Nursing Home and that he had not gone to the said nursing home and informed the SHO as well as to the higher officials and the SHO had also arrived at the spot and remained there so long as he was there. He answered that the SHO had reached the spot after about 5 or 10 minutes, who inspected the dead body of deceased Sapna Goel. He replied that the application Ex.PW7/A was written by PW Gulshan of his own and after consultation with his other family members voluntarily and same SC No.187/10 Page 22/119 was not dictated to him either by him or the SHO and that he had recorded the statements of PWs Gulshan Goel, Jatin Goel, Smt. Veena Goel and Tara Chand Gupta, which are Ex.PW11/A, Ex.PW11/B, Ex.PW4/DA and Ex.PW7/B, at the spot and the same were voluntarily given to him by the said persons and were read over to the said witnesses and after understanding the contents of the same, they had signed the said statements. He further admitted that he had written on the death report which is Ex.PW11/M that there was no injury observed by him on the body of the deceased after examination. He further answered that he obtained the identification statements of the witnesses on 04.10.2007 at the mortuary and they had signed after reading the document which is Ex.PW11/A. He did not know if the mother of the deceased as well as ladies present there had inspected the body or they had changed the clothes of the deceased. He admitted that when he reached the spot, the PCR officials were present there. He replied that he had made inquiries in the neighbourhood and he was informed that relations between the deceased Sapna and the accused were cordial and deceased was kept happily in the matrimonial home. He further admitted that PW Gulshan had signed the death form Ex.PW11/M after going through the contents of the same wherein it was mentioned that there were no injuries on the person of the deceased Sapna. He further replied that he was going to Dr. L.C. Gupta, the autopsy surgeon in this SC No.187/10 Page 23/119 case, for collecting the PMR on the said dates but he was told by the said doctor that the report was not ready and prepared and that on 11.10.2007, he had received a phone call from the complainant party that he should go and collect the PMR from the concerned doctor as the same has been prepared and he had entered this information in DD No.41B which is now Ex.PW20/DA. He further replied that he was called by the ACP later on in his office and the complainant party had gone there of their own for moving the application Ex.PW7/A and they also reiterated whatever was written in the application and also stated that they had no suspicion of any kind regarding the death of the deceased and requested for waiving off the postmortem examination. He further answered that investigation remained with him till 15.10.2007 and by that time, no statement was given by PWs Tara Chand, Veena Goel, Gulshan and Jatin Goel against the accused persons. He admitted that in the document Ex.PW11/M, he had shown the place of incident as the roof of the house where the deceased had collapsed on account of seizures and convulsions.
20. PW23 ACP P.C. Maan, the subsequent IO of the case deposed that on 15.10.2007, he was posted as SHO, PS Uttam Nagar, Delhi, and inquest vide DD No.21A dated 03.10.2007, u/s 174 Cr.PC of PS Binda Pur was marked to him by DCP, West District, for further inquiry and necessary action as a complaint was lodged by mother SC No.187/10 Page 24/119 and maternal grand father of deceased Sapna to DCP, West District. He further testified that on 17.10.2007, a complaint of four pages of Smt. Veena Goel was received in the PS which is already Ex.PW4/A and that on 19.10.2007, during inquiry, he inspected the said house and crime team was called who inspected the spot and took the photographs which are Ex.PW22/B1 to Ex.PW22/B6 and then he prepared the site plan which is Ex.PW23/A and recorded the statements of accused Anil Goel and Rajender Goel present in court which are Ex.PW23/B and Ex.PW23/C and that on 25.10.2007, he collected all the inquest papers after postmortem from SI Dharampal and DDU mortuary and he discussed the matter with senior police officials and made his endorsement Ex.PW23/D and got the case registered vide FIR Ex.PW3/A and that he also collected the postmortem report. He further testified that during investigation, on 27.10.2007, he arrested accused Anil and Rajender Goel from bus terminal Uttam Nagar at 6 p.m at the instance of PW Gulshan Kumar and thereafter he deposed regarding recovery of mobile phone from accused Anil and that on 28.10.2007, he deposed regarding disclosure statements of the accused and recovery of said chunni and the iron rod and thereafter he prepared the site plans of both the places of said recovery which are Ex.PW23/F and Ex.PW23/G and he further testified that three accused namely Sanjeev, Santosh and Vijay Laxmi were absconding and later on, SC No.187/10 Page 25/119 they were ordered to be released on anticipatory bail by the Hon'ble High Court and he formally arrested them on 01.03.2008 vide memos Ex.PW23/H, Ex.PW23/J and Ex.PW23/K and thereafter he collected the call details of the mobile phone and collected the PCR form already Ex.PW16/A. He further deposed that he made inquiries from the PCO owner of telephone number 25631726 but the person who had informed the Police Control Room could not be traced and that he sent the exhibits to FSL and result of the FSL is Ex.PW23/L. He further deposed that he recorded the statements of Priyanshi, daughter of deceased Sapna, and accused Anil Goel and initial challan was filed against accused Anil Goel and Rajender Goel and a supplementary charge sheet was filed against remaining three accused and he identified the said mobile phone, chunni and the iron rod as Ex.P1 to Ex.P3.
21. In his cross examination on behalf of the accused, he replied that in the PCR form, the name of the informant was Pradeep Sharma and it was a PCO number. He further replied that when he had taken the PCR form, the cuttings mentioned in the words on the backside of the said form were already there but he had not recorded any statement of any PCR official with regard to the said cuttings made in the said form. He admitted that there are no initials on any of the cuttings in the said form. He answered that on 15.10.2007 and 16.10.2007, he had not called the mother, brother or any other SC No.187/10 Page 26/119 relative of the deceased Sapna to the PS but on 17.10.2007, complainant Smt. Veena Goel had herself come to the PS with a complaint Ex.PW4/A. He answered that he had not taken any action against the accused persons even after receipt of complaint Ex.PW4/A on 17.10.2007 as he was waiting for the PM report. He answered that although he had gone to collect the PMR prior to 25.10.2007 on two occasions, but he was told by the concerned doctor that the report was not ready and the witness volunteered that SI Dharampal had also gone to collect the said report 2/3 times but the same was not given to him as it was not ready. He further replied that he had not registered any FIR even after receipt of complaint dated 17.10.2007 from Smt. Veena Goel and FIR was registered only on 25.10.2007, after obtaining the PMR and he did not record any statement of Smt. Veena Goel, Gulshan, Jatin or Tara Chand till 25.10.2007. He admitted that he had recorded the statements of accused Anil Goel and Rajender Goel in his own handwriting but he could not explain as to why a gap had been left in both the statements which are Ex.PW23/B and Ex.PW23/C and he denied the suggestion that the said gap was because of obtaining of signatures of the said two accused on blank papers. He further answered that despite the statements of the accused Ex.PW23/B and Ex.PW23/C, he had not registered any FIR u/s 306 IPC against the accused. He further answered that he had not discussed with his SC No.187/10 Page 27/119 senior officers about this matter from 15.10.2007 till 25.10.2007 despite the complaint dated 17.10.2007 and the statements Ex.PW23/B and Ex.PW23/C. He admitted that on 27.10.2007, the daughter of the deceased namely Priyanshi was handed over to the complainant as well as her father Sh. Tara Chand at the PS by accused Anil Goel and Rajender Goel at about noon time on the said day, but he had not prepared any document in this regard. He also admitted that said seal, after the recovery of the said articles at the instance of accused, was not handed over to any public person. He admitted that he had not recorded any disclosure statement of the accused on 27.10.2007. He further admitted not to have joined any public person at the time of recovery of the said two articles at the instance of said two accused. He further replied that he had not obtained signatures of any of the witness or the accused on the site plans of the place of recovery Ex.PW23/F and Ex.PW23/G.
22. Coming to the medical evidence on the record, PW9 Dr. Yogesh Malhan deposed that he was running a clinic at Milap Nagar Road, Uttam Nagar, Delhi and on 03.10.2007, at about 9 a.m, he was present at his clinic when two boys came to him and one of the boys told him that his wife had fallen down on the roof while drying the clothes and the name of that boy was Anil who was a Chemist in the same area known to him due to said reason and that when he reached at their home at S58, Vijay Vihar, Uttam Nagar, people had SC No.187/10 Page 28/119 gathered there and were saying to take the wife of said Anil to some nursing home immediately and that in the meantime, he also reached there and found one lady, aged about 30/32 years, lying on a cot and he checked her pulse which was doubtful, so he also directed to take her to nearby nursing home and thereafter he came back to his nursing home without charging any fees and he was declared hostile by the prosecution and was cross examined by the Ld. Addl. PP wherein he denied to have said to the police in his statement that when he checked the lady, she was found dead and he was confronted with his previous statement Ex.PW9/A where it was found so recorded and thereafter he volunteered that since he had a very small set up in his clinic, that is, only OPD, that was why, he did not make any statement before the police regarding the death of the lady and asked the family members to take her to some nearby nursing home. The witness was put with a question as to what he meant by "doubt over pulse" and that was she alive or dead, to which he replied that body of the lady was warm but pulse was very feeble and it could not be recognized without proper instruments and moreover, he stayed there for 2/4 minutes and that was why he could not tell as to whether she was dead or alive at that time. He denied the suggestion that the lady was dead when he examined her and due to the cordial relations with the accused, he was deposing falsely and he was not cross examined on behalf of the accused. SC No.187/10 Page 29/119
23. PW24 Dr. L.C. Gupta, the autopsy surgeon, deposed that on 04.10.2007, he was posted at mortuary, DDU hospital and on the said day, he along with Dr. Anita conducted postmortem examination on the body of Sapna Goel, aged 30 years, female, w/o Anil Kumar, vide PMR number 921/2007 and as per information furnished by the IO and as per inquest papers, the deceased fainted after feeling giddy at the roof of her house while laying the wet clothes for drying and died and as per DD No.21A, the alleged history was of a woman who had hanged herself and as per information furnished by the IO in death report, no ligature mark in the neck as well as no injury over the body was present and in the general description, the doctor deposed that face of deceased was suffused and her both lips, tip of nose were bluish and contused along with her all nails bluish and that both eyes were closed and conjuctiva with petecheals and cornea were dry and hazy and that there were rusty colour fine froth admixed with blood was also present all over the face after coming out from both nostrils. Thereafter the surgeon deposed regarding external injuries, as per which there was horizontally placed, deeply grooved ligature mark present at mid 1/3rd part of the neck which was extending from right lateral aspect of neck to nape of neck at its right half, in form of abraded bruise with echymosis around the edges in an area of 11 cm x 1.5 cm to 1 cm and it was reddish in colour and on incision and SC No.187/10 Page 30/119 further desection of the neck underneath tissue found deeply contused with collection of haemotomma which was also reddish in colour. He further observed right side outer ear of the deceased as contused and it was reddish in colour and on incision the deep tissue found contused and that reddish bruise in an area of 3 cm x 2 cm, irregular shaped was found present at left side lateral aspect of mid 1/3rd of left arm and on its incision, underneath reddish colour haemotomma was present and that bruise with bluish colour present at lateral aspect of thigh extending from 1/3rd to middle 1/3rd part and varying in size between 5 cm x 2 cm to 1 cm x 1 cm and underneath dark red colour to black colour haemotomma was present in the tissues. He further found two irregular shape of bruise of reddish colour present at left side upper 1/3rd of leg at its lateral aspect with underneath haemotomma, one irregular shaped bruise at right thigh distal 1/3rd with underneath red colour haemotomma found present and that total four bruise of different size were present at left side upper limb on its lateral aspect, irregular shaped, reddish in colour with underneath red colour haemotomma and that total five bruise of irregular shape, reddish in colour at right upper limb at its dorsolateralaspect varying in size, one red colour bruise, irregular shaped at middle aspect of upper 1/3rd part of right side arm with underneath haemotomma and one irregular shaped reddish bruise of size 5 cm x 3 cm at middle aspect of right arm with underneath SC No.187/10 Page 31/119 tissues found contused with collection of red colour haemotomma.
24. The autopsy surgeon PW24, on internal examination of the dead body did not detect any abnormality in the scalp, skull and base of skull but the brain matter was congested and odeamatus and on incision, brain matter marked patecheal haemorrhages were present. The whole front of neck and left side of neck and its lateral aspect up to left side nape of the neck was intact and no abnormality was detected and he further found hyiode, thyroid and cricoid cartilages intact and no abnormality was detected and tracheal mucosa was congested and its luman was full with fine rusty colour froth admixed with blood. He did not found anything abnormal in the chest and heart and the heart was preserved, sealed and handed over to the IO for microscopic examination for onward transmission to Department of Pathology of DDU hospital in 10% formaline. He found abdominal valve and cavity as normal and the stomach was empty and all visceras were congested which was preserved and handed over to the IO for histopathological and chemical analysis and he deposed that 42 photographs were taken during the postmortem examination in the mortuary itself in front of IO which were also handed over to the IO with PMR and the said photographs are collectively Ex.PW24/1 to 42 and the Ld. Defence Counsel objected to with regard to mode of proof of the said photographs as there are no negatives, to which the witness replied that the same SC No.187/10 Page 32/119 were digital photographs having no negatives as such.
25. The autopsy surgeon gave his opinion about the cause of death as asphyxia as a result of sustained and forceful pressure over the neck with help of ligature which was sufficient to cause death in ordinary course of nature and the postmortem findings were consistent with assault prior to the death of the deceased and all the injuries were antemortem in nature and of fresh duration to 2 to 3 days which was caused by blunt force/impact and in the present case, possibility of homicide cannot be ruled out and time since death was about 36 hours prior to postmortem examination and within about 4/5 hours, after taking last meal by her, and he exhibited his report as Ex.PW24/A which was signed by him at point A and by Dr. Anita at point B and he further identified 14 inquest papers which were initialed by him.
26. The cross examination on behalf of the accused of PW24 was almost in the question/answer form conducted by the Ld. Defence Counsel wherein the autopsy surgeon admitted that it was not at all a board of autopsy surgeons to conduct the autopsy and as such, no question arose of taking any permission either from the Secretary Health or the M.S of the hospital and that Dr. Anita was a junior resident only and was working in his subordination. He further replied that there was no necessity at all of Dr. Anita to be present in SC No.187/10 Page 33/119 the autopsy but it was his duty to train the junior doctors for their future work in these type of cases and as such, he has not taken any specific permission or authorization from the M.S. of DDU hospital to associate her with the PME. He further replied that it is always necessary to take signatures of Dr. Anita or like junior residents on the PMR, if they participated in the autopsy, but he has not mentioned that Dr. Anita was a junior resident and was working under the department. He specifically replied that he had prepared the PMR on 04.10.2007, just after conducting the autopsy. A question was put to him as to when this postmortem report was collected by the IO to which PW24 could not say anything and mentioned that information in this regard was very well available in the department as to when the IO collected the PMR from the department. He denied the suggestion that IO had contacted him for about 6 or 7 times for collecting the report or that he had not told the IO that PMR was not ready. He could not tell as to whether he had given the PMR to the IO only on 25.10.2007. A question was put to PW24 as to why the report was given on 25.10.2007 or whether he had any explanation for the same, to which he replied that it was the integral duty of the IO to collect the PMR from the department and it was not his duty to call the IO or to deposit the report to the PS personally. Again he was asked with a question as to whether the PMR remained with him or whether he submitted it to some other SC No.187/10 Page 34/119 officer of the department, to which he replied that in general the report is generally collected by the IO from the doctor concerned who conducted autopsy but this practice may vary from mortuary to mortuary and in his mortuary, IOs were directly collecting the report from the concerned doctor. He further admitted that in column "B", in front of neck, he has mentioned that whole front of the neck and left side of the lateral aspect of the neck of the nape of the neck was intact and no abnormality was detected. He was put with a question as to whether it is correct that blood vessels of the left side of the lateral aspect of the neck supplying blood to the brain were not having any constricting force, to which he replied that absence of any ligature mark, pressure mark or bruises at the other side of the neck especially when there is deep sitting of bruise on the other side along with deeply grooved ligature mark, can be accounted for by the maintenance of continuous pressure over the neck till the set up for death and as the blood vessels available in the skin of other side neck became empty because of application of continuous pressure and the cessation of heart beating resulted till the pressure was removed then. As such, hardly 4.5 kilogram weight pressure is sufficient to obstruct the venous supply of the neck (all the tributaries and main veinjugular vein) which is sufficient to interfere with the blood drainage from the brain to the heart and the same resulted into vice versa and further to obstruct to arterial SC No.187/10 Page 35/119 supply in the neck (carotid artery) hardly sustained pressure of 10 kilogram weight is sufficient. The same will not at all cause pressure mark in the form of ligature mark or bruise or haemotomma on the other side of the neck or even in the same side of the neck and that in the case of compression of a neck, degree of asphyxia is immaterial as in this case, there is always contents of vasovagal inhibition always matters along with blood supply obstruction in both directions from heart to brain and reversely from brain to heart. He was next asked a question as to whether said details stated in the above said question were mentioned by him in his PMR, to which PW24 replied that there was no need to mention the said details in the PMR as he had made only a report and not made a textbook. Again he was asked a question as to whether he observed any haemotomma on whole front of left neck and lateral aspect of the neck up to the left side of nape, to which he replied in negative. He denied the suggestion that his above said explanation is incorrect and against the medical jurisprudence. He further answered that if a person is suffering from acute seizures and convulsions, there may or may not be a secretion in the trachea but as such, in this case, no postmortem findings suggestive or consistent were present in the body of the deceased and he has already excluded all the causes of sudden and unexpected natural death. He further replied that presumption of accidental SC No.187/10 Page 36/119 strangulation or hanging as cause of death in this case was not at all scientifically tenable and as such, in this case, cause of death was because of sustained compression of neck by the other party and the same was a homicidal cause of death. He further answered that he did not observe any finger marks on the neck of the deceased. He further answered that no ligature material was submitted before him, before or after the finalization of his report nor he visited the scene of the crime in this case as he was not requested so by the IO or SHO or ACP and he himself personally not felt necessary to examine or visit the scene of crime because the cause and mode of death was apparent on face and there were clear findings of multiple injuries suggestive of physical torture. Again he was asked with a question, as to whether the last fact of physical torture was mentioned by him in his PMR, to which he replied in affirmative and answered that he had mentioned the said fact in the opinion part of his report that PM findings were consistent with the assault prior to death and all injuries were antemortem in nature and that were fresh to 2/3 days old in duration and were caused by the blunt force impact. He was further asked with a question to the effect as he was not shown any ligature material, whether he can opine as to what kind of ligature material could have been used as per his opinion, to which he replied that in this case, a soft dupatta like or saree like material may have been used to put sustained pressure around the SC No.187/10 Page 37/119 neck of the deceased prior to her death and he further replied that he had already explained that presence of ligature mark on the entire neck by the said two kinds of ligature material may or may not be there on the neck, still the opinion can be made of a strangulation or sustained compression of the neck by an autopsy surgeon. He was asked with a question as to how the photographs were taken by him and from which source, to which he replied that in this particular case, photographs during the PM examination were taken in the presence of the IO concerned by calling a photographer by the IO himself and the same were very necessary because of the IO concerned did not examine the dead body himself and did not mention the injury present over the dead body which can be appreciated by the naked eye and that in fact, it was the integral duty of the IO to mention each and every injury present over the dead body for which he made inquest and prepared inquest report in accordance with prescribed performa and that there was nothing intentional or prejudice to anyone in this regard, but he has not mentioned the said cause and reason for taking the photographs in his said PMR. In his further reply as to whether he has filed a complaint against the IO to the senior police officials, he has mentioned that this fact was mentioned by him in his PMR at column with the name of "brief history" where he had specifically mentioned the same but he could not say as to whether he has made SC No.187/10 Page 38/119 any specific complaint in this regard or not, but it was in his knowledge that for this purpose only and for this destruction of evidences in favour of accused, a departmental inquiry was made against the IO SI Dharampal wherein he was called as a witness by the police department and as per his knowledge, a stricture was passed against the IO although he was not confirmed as to what stricture was passed or order was given, but he did not receive any copy of said strictures or order against the IO. He denied the suggestion that no such strictures or orders were passed against the IO much less in a departmental inquiry. He denied the suggestion that photographs placed by him on record are fudged photographs to falsely implicate the accused at the behest of complainant party and the police persons and are not the correct photographs.
27. The said autopsy surgeon, PW24, was further put with certain questions for impeaching his credit. He was asked with a question as to whether Principal Secretary Health has removed him from work relating to Forensic Medicine and he was assigned only to do administrative work vide order dated 27.10.2007, to which he replied in affirmative as true and subsequently a detailed inquiry has been set up wherein matter was referred to the Chief Secretary and L.G. of Delhi and all the said authorities had exonerated him from all such false, baseless and fraudulent charges/complaints made against him. He was asked with a question as to what were the SC No.187/10 Page 39/119 charges against him and what were the complaints filed against him, to which he replied that there were complaints from interested police personnels having their various kinds of investigating interest who were not ready to listen the truth observed during the postmortem examination and there were complaints from the D.G. Prison Sh. B.K. Gupta, now Commissioner of Police, Delhi, about constituting Medical Boards by him as In charge of the mortuary, but subsequently, after investigation, it came to the knowledge of the authority that all the said complaints were false and were made by the accused parties only and he replied that there were multiple murders in the Tihar Jail and FIRs were registered against the employees of Tihar on the recommendation of various Metropolitan Magistrates, who conducted inquest u/s 176 Cr.PC and the Boards were constituted by them only and he was not at all even the party or the member of that Board, but all this was malafide against him. He was again put with a question that there were complaints from individuals that he was demanding money from them for fudging the postmortem examination, to which he replied that all the said complaints were made at the instance of investigating officers who had their vested interest and as such, in almost all the cases, it was his general practice to take photographs during the autopsy which was not suited to the said IOs and they approached to the Secretary Health for alleged illegal construction of Medical Board for the SC No.187/10 Page 40/119 PMRs which were made by the other doctors. Again he was asked a question as to whether in case FIR no.745/05, PS Prashant Vihar, u/s 498A, 304B/34 IPC, titled State Vs. Rajender Singh and others, the concerned court opined against him that he had given a false opinion in the PMR vide certified copy of the judgment Ex.PW24/DA, to which he replied that it was technically, legally and patently wrong and defamatory as reading of the whole judgment suggested no such remarks passed against him of his opinion being false and as such, taking opinion of a doctor, who did not at all examined or see the dead body, over and above an expert of forensic medicine who conducted the PME in the case and who is more senior and experienced to the other doctor namely Upender Kishore and the said holding of the court is against all set of the norms and the law decided by the Hon'ble Supreme Court of India in various cases and further, the same case was discussed by the Board of Doctors of Delhi Government on the order of Principal Secretary Health and he tendered the order of the Principal Secretary Health dated 24.12.2008, exonerating him from all the charges which is Mark D1. He further answered that in the present case of deceased Sapna Goel also a board was constituted including three experts of Forensic Medicine on his PMR and they had given no verdict against the opinion given by him about the cause and mode of death and the report was not available in the case file but the same was received by SC No.187/10 Page 41/119 the IO, as per his knowledge, from the concerned board. He denied the suggestion that he was deposing falsely with regard to constitution of subsequent board in the present case by any authority. He further denied as wrong the facts mentioned at page 39 of the judgment Ex.PW24/DA wherein it is mentioned that his opinion was reviewed by the Board of Doctors of MAMC wherein they opined the cause of death to be suicidal. He was put with a further question as to whether he was booked for the offence u/s 7 of the Prevention of Corruption Act vide FIR no.402/01, PS Kalyan Puri, in connection with the said reversal of his opinion, as mentioned in para 39 of Ex.PW24/DA, to which he replied as patently false and wrong and he further replied that the said FIR no.402/01 was registered against relatives of the then ACP of Kalyan Puri who wanted to get a false report under his illegal pressure which was not at all entertained by the Board of Doctors, in which he was a member and DCP and ACP concerned were transferred by the orders of the then L.G. and due to which they filed a complaint against him as a counter blast and that subsequently a detailed inquiry was made by senior officers of police in the case and he was exonerated and charges were made against those complainant, the relatives of the said ACP and the case is still pending trial against them and in the said case, the relatives of the said ACP were demanding declaration of certain cricket players to SC No.187/10 Page 42/119 be below the age of 17 years so that they could play in the Indian Cricket Team on the basis of manipulated ossification test required from the Board of Doctors of which he was a member. He was put another question as to whether in case FIR no.270/05 of PS Narela, in the certified copy of the autopsy report, Ex.PW24/DB, he has given the opinion as homicidal death as member of the board along with Dr. Anil Shandil and subsequently said doctor changed the opinion to be that of suicidal death from the previous opinion of homicidal death and certified copy of deposition of Dr. Anil Shandil is Ex.PW24/DC, to which he replied that interim report in autopsy report Ex.PW24/DD was given by the board including three doctors wherein it was mentioned that opinion regarding cause of death would be given after receipt of report of chemical examination of viscera of the deceased and further it was opined by the said board that the PM findings were consistent with postmortem hanging and struggle/assault and it was further opined in the said report that mode of death homicide with possibility of creation of scene suggestive of suicide, but when the FSL result came, it was found that aluminium phosphide was found in the viscera and blood, then on the application of SHO the board has reviewed the case and gave final opinion about the cause of death and mode of death and as such, there was no change in the opinion. He further replied that aluminium phosphide can only be taken by a person himself or SC No.187/10 Page 43/119 herself and the same cannot be given by other or taken by the person accidentally as the same has extensive pungent smell and taste. He was further put with a question that in the said case FIR no.270/05, the board mentioned a ligature mark around the neck extending from left side of chin to nape of the neck and then right side with bare area over the left side mastoid to chin and in the interim report, in the said PMR, he had suggested the same to be homicidal and mentioning therein that assault/struggle could not be ruled out and as to how he changed the opinion to be suicidal only in the said circumstance, to which he replied that facts available in the present case of death of Sapna Goel and facts available in the case of the deceased in FIR no.270/05 were totally different as in that case the dead body was removed by the police from the hanged stage, the body was hanging from ceiling fan and there was presence of broken pieces of bangles on the bed itself and that the ligature material was around the neck of the deceased and there were multiple crescentic shaped abrasions over the dorsal aspect of left hand, proximal index finger and right dorsal of hand and ulnar boarder of right hand and further there was an abrasion with bruise at left side of chin of the deceased but in the present case, there was no ligature material around the neck of the deceased and there was no person who removed the dead body from the hanged stage and as such, the present case cannot be equated with the said case. SC No.187/10 Page 44/119
28. PW25 Dr. B.N. Mishra, the Medical Officer, Department of Forensic Medicine, DDU hospital, deposed in his examination in chief that he had been deputed by M.S of DDU hospital to depose on behalf of Dr. Anita Jha, the then J.R., Forensic Department, who conducted the postmortem and prepared the postmortem report with Dr. L.C. Gupta and that he had seen the PMR Ex.PW24/A of the deceased Sapna Goel dated 04.10.2007, which was prepared by Dr. Anita Jha in her own handwriting, but the postmortem examination was conducted by Dr. L.C. Gupta and Dr. Anita Jha and that Dr. L.C. Gupta had also signed at point A and that he can identify the signatures of said two doctors as he had seen them signing and writing in the course of his duties and that Dr. Anita Jha had left the services of the hospital and her present whereabouts are not available in the hospital record.
29. Again PW25 was cross examined in question/answer form by the Ld. Counsel for the accused, wherein he admitted that in the PMR the ligature mark present at mid 1/3rd part of the neck extending from the right lateral aspect of the neck to the nape of the neck and that 2/3rd part of the neck was not having any ligature mark. He further admitted that since there was no ligature mark on 2/3rd portion of the neck, therefore, there was no constricting force on that portion. He further admitted that there was no constricting force on the underlying blood vessels which supply blood to the SC No.187/10 Page 45/119 brain and as such, the supply to the brain was not effected from these blood vessels. He further answered that as per photograph Ex.PW25/X of the deceased shown to him, after excision of the neck on the anterior and right lateral aspect of the neck, it does not show any haemotomma, bruises or extra vasation of blood within the area dissected. However, few minor hemorrhagic spots were seen within the same area. He further admitted that these minor hemorrhagic spots could be caused by postmortem artefact. He was put with a question that since 2/3rd portion of the neck was intact and there was haemotomma under 1/3rd portion, as mentioned in the PMR, as such, strangulation or hanging is not possible in the present case, to which he replied that if the length mentioned above of ligature mark present on the anterior aspect of the neck, same could be possible in connection of strangulation or hanging as the vital organs like trachea, large blood vessels of neck lying on anterior or anterio lateral aspect of the neck but in this case, the ligature mark lying on the lateral aspect of the neck which could cause compression of blood vessels on the right side but remain intact on left side and trachea, that is why, if there was constriction of the neck on the right side, could cause partial obstruction of the blood to the brain without causing fatal outcome. He was further asked a question if a person suffers from seizures and convulsions, in that state, the person could also aspirate the gastric material and he replied that it depends upon SC No.187/10 Page 46/119 case to case and that in case of a person having stage of convulsion or seizure, the person lost its consciousness and physiologically secretes tracheal secretion takes place but it is not necessary that same secretions would drain towards lower respiratory (bronchus and lungs). He further replied that it depends upon the posture of the body and emergency handling of the same but in this case, the gastric contents were not observed into the trachea and other respiratory parts and that the possibility of any gastric aspiration is ruled out in this case. However, as trachea contains frothy secretion mixed with blood, the possibility of this trachea secretions being aspirated into the lower respiratory cannot be ruled out. He was again put with a question as to whether above secretion be possible if a person suffers seizures and convulsions, to which he answered that it may be possible. PW25 was put with a question that in PMR Ex.PW24/A the injuries mentioned at points B to H, whether can be caused during suffering of seizures and convulsions, wherein the deceased was throwing her hands and legs violently on the hard surface like roof of the house, to which he replied that it depends upon the conscious level of the patient, duration, intensity of the episode and surrounding area and that if a person in a stage of convulsions for a long duration with intensified convulsive stage and surrounded by hard and uneven surface, which can cause such type of injuries.
SC No.187/10 Page 47/119
30. Coming to the public witnesses examined in the case, PW4 Smt. Veena Goel, who deposed initially regarding the marriage of the deceased with accused Anil Kumar Goel in the year 2002 and about his children and about the identity of the accused being the in laws of the deceased daughter. She further deposed that on 02.10.2007, she received a missed call from the deceased and she gave her ring back at about 8.45 p.m and had a talk with her for about five minutes wherein the deceased told her that she would be visiting on the next day i.e. 03.10.2007 and on 03.10.2007, when she was present at the house, she received one phone call from matrimonial home of the deceased by sister in law of the deceased namely Ms. Lata at about 9.40 or 9.50 a.m, that deceased was not well and asked her to reach there and thereafter she along with her son Gulshan Goel went to the matrimonial house of Sapna at S58, Vijay Vihar, Binda Pur and reached there within ten minutes and some person was standing outside their house, who informed them that Sapna had been taken to Gupta Nursing Home near her matrimonial home by her in laws and thereafter they reached the said nursing home where deceased was made to lie on a stretcher outside the nursing home and she was dead and at that time, accused Anil, Rajender Goel, Smt. Santosh Goel, Ms. Lata, Sanjeev and one Padam Chand, father of accused Sanjeev were present there who told them that Sapna had gone to the roof to dry clothes where she SC No.187/10 Page 48/119 fell down due to giddiness and expired and she was taken by them to the said nursing home and that no family member of her (the witness) could reach at Gupta Nursing Home by that time and she could not speak and think due to shock and thereafter deceased was taken to her matrimonial home, where her (the witness) parents also reached and at the matrimonial home, the accused had already arranged the tent and pooja before cremation and accused Anil told her father that body of Sapna is to be removed for the cremation, but her father namely Tara Chand Gupta told accused Anil to wait for sometime as some other relatives had to reach there and that someone from the locality made a call to the police and the police reached there and the police official namely Dharampal stopped the accused persons from performing the ceremonies and insisted on the postmortem on the dead body of Sapna as he received a telephone call that death of Sapna was unnatural, but the accused were insisting otherwise that it was natural death and there was no need to conduct the PME over the dead body of Sapna. She further deposed that thereafter her son Gulshan was asked to write on a paper by the accused and police official and as he was under shock and was not in a position to understand, therefore, he wrote the contents on the dictation of accused persons and Dharampal and on the said paper they had put their signatures and thereafter about 15 persons from both the sides went to the office of ACP, Tilak Nagar, but she did SC No.187/10 Page 49/119 not accompany them and later on, when she came back to her house on the same day, she came to know that ACP told that PME on the dead body of Sapna was required under the circumstances and on that day, the dead body of deceased Sapna was taken by the police to the mortuary for PME at about 8 p.m and till that time, accused persons were trying for waiving off the PME and after the dead body of Sapna was removed by the police, they came back to their house and prior to taking the dead body, it was photographed by the police. She further testified that on 04.10.2007, PME was conducted and at about 8 or 9 a.m, SI Dharampal came to their house with a prewritten paper along with accused Sanjeev and asked them to sign that document and told them that if the report of PME would be unnatural death, then the document would be torn and that they made signatures on that paper and after the PME, the dead body of Sapna was received by them and thereafter she was cremated. She further testified that when they were present at the matrimonial home of her daughter Sapna, after her cremation, the ladies from the neighbourhood were whispering that Sapna had hanged herself due to which she (the witness) got suspicion and she told her parents and other relatives about this, who put pressure on the family members i.e. the accused Rajender Goel, about the same, who told them that Sapna had committed suicide by hanging herself on the hook of fan on the second floor and when they asked the accused persons as to SC No.187/10 Page 50/119 why they did not disclose this fact to the police earlier, on which they could not give any satisfactory answer and that they waited for the result of PME and on 13.10.2007, Sanjay along with accused Ms. Lata along with two children of the deceased went to her parents house for telling them about the Kriya ceremony on 14.10.2007 and that on the said day, all her relatives asked the accused persons as to what had happened in reality, on which the accused persons sometime told them that she had committed suicide and sometime they had given reply that she died while drying the clothes on the roof and in this process hot conversation took place and police was called and the accused persons left the spot by locking the house in between the Kriya ceremony and only Sanjay and accused Rajender Goel were present.
31. PW4, the mother of the deceased, further testified that on 17.10.2007, she gave a written complaint to the police which is Ex.PW4/A and she produced the photocopy of the complaint dated 31.10.2007 against SI Dharampal lodged by her to DCP, Rajouri Garden, New Delhi, which is Ex.PW4/B and that since her daughter Sapna was brought up by her (the witness) father Tara Chand Gupta, who had a house at Sector 7, Rohini, the accused persons used to demand the said house from her daughter which was told to her by her daughter and that on this, she told her daughter that she could not tell this fact to her (the witness) father since he is a heart patient SC No.187/10 Page 51/119 and that SI Dharampal also recorded her statement on 03.10.2007 of his own at the instance of accused.
32. In her cross examination on behalf of the accused, PW4 replied that her son Jatin was not with her when she reached at Gupta Nursing Home and that she had given a statement to the police u/s 161 Cr.PC. PW4 was asked with a question as to who told her that it was a statement "u/s 161 Cr.PC", to which she answered that she had deposed regarding Section 161 Cr.PC as she was having the copy of her statement in the title of which "161 Cr.PC" was mentioned. She further replied that she had not read the statement on the day of deposition before coming to the court and she did not remember the date when her statement was recorded by the police. She replied that she had not stated in her said statement that she had gone to Gupta Nursing Home along with her two sons namely Jatin and Gulshan and she was confronted with her statement Ex.PW4/DA from portion A to A, where name of Jatin was found mentioned. She was further confronted with the fact that Tara Chand Gupta and her mother Asharfi Devi had not reached the said nursing home till they remained there because she did not remember this fact as to whether the same was told to the police or not, but it was found so recorded in her said previous statement from portion B to B. She replied that she had not seen any mark of injury on the person of her daughter Sapna and she volunteered that as the SC No.187/10 Page 52/119 dead body was covered and she was not in her senses. She further replied that face of the dead body was not covered on which she did not notice any mark of injury. She did not remember if she had stated in her statement to the police that since the body was covered and she was in shock, she could not see the body of her daughter. She further answered that she did not ask the doctor regarding reason or cause of death of the deceased at the said nursing home. She further replied that she had seen the face of dead body at the house of accused persons. She further answered that as per custom, the dead body before cremation was to undergo a bathing, but in this case since the body was taken by the police, as such, no such custom was performed. She replied that she had not seen the dead body of her daughter thoroughly when the police had arrived at the spot. She answered that she had not asked the police that she wanted to see the dead body of her daughter and she volunteered, because she was not in such a condition. She replied that none of her relation had asked the police that they wanted to see the dead body of her daughter. She answered that they had not telephoned the police, but they cannot say as to how the police reached at the spot. She admitted her signatures on Ex.PW4/DA at points A and B, which she had signed on 04.10.2007 in the morning, when SI Dharampal and Sanjeev came to their house and she had signed the same without going through the contents of the same and that she had not SC No.187/10 Page 53/119 seen that the said document Ex.PW4/DA bore the date as 03.10.2007. She answered that it was wrongly written in Ex.PW4/DA that the statement was read over by her and she signed it in token of that. She has admitted that the Ex.PW7/A was in the hand of her son Gulshan and she volunteered that it was dictated by SI Dharampal to her son and they were not having any suspicion at that time with regard to death of her daughter and that was why the said Ex.PW7/A was not objected to, but the same bears signatures of her son and also of her father as well as neighbours of the accused had also signed the said document. She admitted that she had not stated in her statement to the police that SI Dharampal along with Sanjeev had come to her house in the morning of 04.10.2007 and obtained her signatures on some papers without narrating the contents to her. She answered that her son Gulshan and her father Sh. Tara Chand had gone to the office of ACP and at that time they did not disclose to ACP that they were forced to write the application Ex.PW7/A or that they had any suspicion with regard to the death of her daughter in any manner or that they insisted on the autopsy of the deceased to be conducted and she volunteered that it was ACP who made them understand in this regard that cause of death would be clear by the autopsy. She denied that she made any complaint to the police before 17.10.2007. She had not said to the ACP that she wanted to make a complaint against the accused SC No.187/10 Page 54/119 persons for demand of house from her daughter before her death. She categorically admitted that Sh. Ajay Aggarwal, who had been the I.G. of Delhi Police, is cousin brother of her father Sh. Tara Chand, but she has not gone to Sh. Ajay Aggarwal to make her grievance that the police was not lodging her report or was in connivance with the accused persons. She answered that neither she nor her sons had told SI Dharampal on 11.10.2007 that the PMR was ready and he should go and collect it from Dr. L.C. Gupta. She replied that she came to know about the receipt of PMR from the PS. She admitted that they used to go to the mortuary to know about the PMR and after making inquiries, they used to come back as the same was not ready. She replied that they did not meet Dr. L.C. Gupta, the autopsy surgeon personally and she came to know about the PMR on 25.10.2007, but she did not remember if she had seen the report on 25.10.2007 or thereafter in the PS. She answered that she had given the complaint in writing to the police on 17.10.2007, prior to having seen the postmortem report. She answered that she was not knowing about any injuries on the person of deceased or any other mark of injury on her body till 25.10.2007. She admitted that the funeral pyre was lit by the husband accused Anil, who also performed last rituals and that the accused Anil along with her son Gulshan, uncle Sharat and one Ashok Kumar and cousin brother of accused Anil namely Sanjay Kumar, had gone to Haridwar for SC No.187/10 Page 55/119 immersion of the remains of the said deceased in the holy river Ganges. She admitted that she had stated in her statement before the court of Guardianship in case no.185/08, that accused Anil was looking after his wife and children very happily and was taking care of them. She admitted that at the time of deposition, the daughter of accused Anil namely Priyanshi (the PW5) was with the accused after her statement was recorded in the court, as per the orders of Guardianship court dated 19.02.2011. She replied that she was not knowing about the ladies in the neighbourhood who were whispering that Sapna had hanged herself and she had not inquired their names or addresses and she did not ask them as to how they knew that Sapna had hanged herself nor she asked the ladies to report the matter to the police nor she herself made any report to the police that some ladies were whispering about the deceased hanging herself. She replied that she had not gone to any place in the house to see where, as per those ladies, her daughter had hanged herself. She admitted that they had not made any report to the police despite the fact that accused could not give satisfactory answer about the death of Sapna by hanging, as stated by her above, and she volunteered that she was waiting for the PMR. She admitted that with regard to the said hanging or scuffle with the accused, she had not made any complaint on 14.10.2007 nor she reported with regard to said two views regarding the death of deceased to the PCR and SC No.187/10 Page 56/119 even thereafter she had not gone to the house of accused to find out if there was any possibility of hanging done by her daughter and at which place in the house. She replied that she wrote the letter Ex.PW4/A at her residence in the presence of all members of her family and relations and after due consultation. She had seen at point X in Ex.PW4/A where the date 17.10.2007 was mentioned in her own hand. She admitted that there is a difference in ink of rest of the contents of the letter Ex.PW4/A and the date mentioned at point X and she admitted that writing at point Y on Ex.PW4/A was not in her hand and that Mark X and Mark Y were written in the same ink in the said letter. She did not know as to when the police officials came to her for investigation after the report given by her to the police, whether it was after 10 days, 20 days, one month or two months or whether they had ever met her or not after submission of her complaint. She did not know if Sh. Ajay Aggarwal was at that time I.G. (Prison), Central Jail Tihar. She admitted that accused Rajender Goel was owning the H.No.S58A, Vijay Vihar, Delhi, and that accused Anil Goel is the only son of accused Rajender Goel and accused Rajender Goel had kept one girl by the name of Ms. Poonam who was the daughter of his brother in law Sh. Inder Sen Gupta, who was also brought up by accused Rajender Goel and he married her himself. She further admitted that her son got married at Sampla, but she denied that said marriage was settled through SC No.187/10 Page 57/119 accused Rajender Goel. She admitted that matrimonial home of said Poonam was also at Sampla.
33. In her further cross examination, she categorically admitted that her mother Smt. Asharfi Devi was suffering from epilepsy for 15 or 20 years ago. She denied the suggestion that she was also suffering from acute epilepsy and for that reason she was admitted for 4/5 times in Amar Leela Hospital and she volunteered that she was admitted in the said hospital once for the surgery of removing stone. She denied the suggestion that deceased was also suffering from said disease as the same was hereditary in their family. She did not know if she had stated in her report Ex.PW4/A that Sanjay and his sister Lata along with two children of deceased went to her parent's house for telling them about the Kriya ceremony on 14.10.2007 nor she was knowing about the said date of Kriya ceremony nor the accused disclosed the date 14.10.2007 as the date of Kriya ceremony on the date of cremation nor she inquired about the said date of Kriya ceremony. She did not know if she had mentioned in her report Ex.PW4/A that after hot conversation accused persons left the spot by locking the house in between the Kriya ceremony and only Sanjay and accused Rajender Goel were present and she was confronted with Ex.PW4/A where it was not found so recorded. She did not know if accused Sanjeev had called the PCR on the said day by making a call from his mobile phone. SC No.187/10 Page 58/119 She answered that she had not admitted in her report Ex.PW4/A that accused persons sometimes told them that deceased had committed suicide and sometimes accused told them that she died while drying the clothes on the roof and it was due to this reason that PCR was called. She answered that deceased along with her children used to come to their house regularly and accused Anil was visiting only occasionally and that she visited the new house of the deceased only once, but in the old house, her children used to visit deceased frequently. She admitted that the deceased used to make a missed call which was being responded by her father and if she wanted to talk to her, her father used to inform her regarding the same and thereafter she talked with her. She answered that they had a talk with deceased once in a while after about 8 or 10 days but deceased used to talk to her (the witness) father regularly on phone. She admitted that marriage of the deceased took place about 7½ years ago of the said incident. She replied that house of her father in Sector 7, Rohini was of about 26 yards and was with him prior to the marriage of the deceased. She admitted that house of accused Rajender Goel was constructed on an area of 75 sq yds with 2½ storied construction having five rooms and accused Anil Goel was having his chemist shop and accused Rajender Goel was a retired government servant and was a pensioner. She answered that only her father could tell as to where the original of Ex.PW4/B was, SC No.187/10 Page 59/119 which was receipted copy of the complaint and the same was not given by her to any police official, but the same was given by her father. She admitted that when the complaint Ex.PW4/B was written by her, her father and other relations were present and after consulting them, she had made the said complaint. She further admitted that she had not made any complaint in writing against SI Dharampal to any higher police official. She did not remember if she had mentioned in her report Ex.PW4/A that SI Dharampal had recorded her statement on 03.10.2007 of his own at the instance of accused persons and she was confronted with the said report Ex.PW4/A where it was not found so recorded. She, after looking at the photograph Ex.PW4/D1, identified the persons shown in encircled position as her son Gulshan who was dancing in the photograph along with accused Rajender Goel and Lata and again her said son is depicted in the photograph Ex.PW4/D2 dancing and her father Tara Chand was standing and in the photograph Ex.PW4/D3, her father Sh. Tara Chand was depicted in the encircled portion, in photograph Ex.PW4/D4, again her son Gulshan in a dancing position along with accused Anil Goel was depicted and in the photographs Ex.PW4/D5 and Ex.PW4/D6, her deceased daughter Sapna was dancing along with accused Lata and in the photograph Ex.PW4/D7, her daughter Sapna along with accused Rajender Goel, Lata and Santosh Goel was depicted and in the SC No.187/10 Page 60/119 photograph Ex.PW4/D8, the deceased Sapna was depicted as dancing along with accused Lata and Kiran. She admitted that in July/August 2007, accused Anil Goel with the deceased and two children had gone to Vaishno Devi. After looking at the photograph Ex.PW4/D9 depicting her daughter and her husband and children, but she could not say if the same was of Vaishno Devi. She denied the suggestion that her daughter had died a natural death and subsequently manipulating the PMR they had made the death as an unnatural death.
34. PW5, the child witness Ms. Priyanshi, aged about 10 years, the daughter of the deceased, was examined without Oath, who deposed in her examination in chief that he had one brother namely Tushar and that she was residing along with her parents and grand parents at Uttam Nagar and that her father's sister namely Lata Goel and uncle (Fufa) whose name she did not know, used to visit their house at Uttam Nagar and that her said Bua (father's sister) had two children namely Varun and Tarun and all the said relatives are present in the court. She further deposed that she did not remember as to when her said Bua (father's sister) and Fufa lastly visited her house at Uttam Nagar and that her mother (the deceased) used to cook food in the house and she is not alive and that her father told him that she (the deceased) fell down and that she herself did not see her (the deceased) falling down and that she was not at home at that SC No.187/10 Page 61/119 time as she had gone to school and that she did not know the date when her mother fell down and that on that day, her father had gone to the shop and her grand parents had gone to the hospital but she did not know the reason for their going to the hospital and that her Bua and Fufa were present at their own house and that her mother (the deceased) had dressed her up and her brother for going to school on the said day and that her grand mother left her in the school van and that police had not come to their house, but again said police had made inquiries from her regarding the death of her mother and as to who were present in the house at that time and that initially she told the above mentioned facts to the police but later on whatever her Nani (maternal grand mother) had asked her to tell, was told by her to the police.
35. PW5 was declared hostile by the prosecution and was cross examined by the Ld. Addl. PP on behalf of the State wherein she was put with a question as to whether she told the police that it was holiday on account of Gandhiji (it was observed by the court that this reference is regarding the date 2nd October) when her Bua and Fufa along with their children had come to her house and it was observed by the court that witness kept silent for a considerable time and Ld. Addl. PP was directed to proceed further. She further admitted that she had told the police that on the said day i.e. 2nd October, her mother had cooked the food in the night when all the SC No.187/10 Page 62/119 said members of the family were present. She further told the police that on the said night her Bua Lata and her husband Sanjeev, with their children, stayed at her house but he had not told the police that on the following morning, her Bua dressed her up and her brother for going to school as her mother was sleeping. She further replied that she had told the police that on her inquiry about her mother as to why she was sleeping, her grand mother and Bua told her that due to the headache, she was sleeping and let her sleep. She further admitted that all the above said family members were present at the house when she left for the school. She replied that she did not know if the police had recorded all the facts deposed by her today, as mentioned above.
36. In her cross examination on behalf of the accused, PW5 admitted that her father was loving and caring for her, her brother and her mother. She answered that police had made inquiries from her at the PS but she did not know the name of the PS. She did not recollect as to who accompanied her to the PS, whether it was her elder maternal grand father or maternal grand mother or maternal uncle. She admitted that she had stated to the police that on the next day, when she went to the school, she was dressed up by her mother.
37. PW7 Sh. Tara Chand Gupta, the maternal grand father of the deceased deposed that she was married on 23.04.2000 and was SC No.187/10 Page 63/119 having two children and on 02.10.2007, a missed call was given by the deceased as usual at about 10 or 10.30 p.m, to which he responded on which the deceased told that at that time her sister in law Lata and her husband Sanjeev with children had come to her matrimonial home and deceased also told that she would be coming on the next day to meet him at Rohini but the said date never came as on 03.10.2007, he received a phone call from accused Anil that condition of Sapna was very serious and he should immediately reach there with his wife and accordingly, they reached the said house of the deceased and found the dead body of Sapna lying in the house and all the articles of funeral ceremony were also lying besides her dead body and accused compelled him for immediate cremation of dead body and that his daughter Veena, her three sons were also present there along with the accused and father of accused Sanjeev namely Sh. Padam Chand Jain was also present and that he inquired about the sudden death of the deceased on which it was revealed by accused that Sapna had gone to terrace to spread the clothes and she felt giddiness and fell down and died and the accused had surrounded the dead body and he was not allowed to see the same and accused persons seemed to be in a hurry for the cremation of dead body and that he asked the accused to wait for his two brothers and other relatives for cremation and someone from the public had called the police and that SI Dharampal reached there and SC No.187/10 Page 64/119 in connivance with accused Rajender Goel, who had retired from Delhi Police in the same year, got an application prepared from his grand son for waiving off the PME on the dead body so that no indignity to the corpus of the deceased may be caused and that on the said application their signatures were also obtained and his signature is at point A on the application Ex.PW7/A and this application was taken by them as well as from the persons of accused side to the ACP, Tilak Nagar but the same was refused by the ACP after making inquiry about the health and other condition of the deceased from them and thereafter they all came back to the house of accused at about 3.30 or 4 p.m but SI Dharampal did not send the dead body for the PME and they found that accused Rajender had gone somewhere for making efforts for not getting the PME conducted and at about 7.30 p.m, he asked SI Dharampal to send the dead body for postmortem and thereafter the same was shifted to DDU hospital for PME and that on 04.10.2007 the dead body was received and cremation was done and after that the witness again stated regarding whispering of ladies with regard to hanging of the deceased and in the morning of 04.10.2007, accused Sanjeev, SI Dharampal coming to the house of his daughter Veena and SI Dharampal asked them to sign some papers which were necessary for getting the dead body and they all were made to sign the papers on which something was written and that on 13.10.2007, accused SC No.187/10 Page 65/119 Anil, Lata and children of Anil came to his house at Rohini to inform about Kriya ceremony to be performed on 14.10.2007 and thereafter the said hot conversation with regard to cause of death of the deceased took place and police was called there and all the accused left the house after locking the house without performing the Kriya ceremony properly. He further testified regarding coming to know from his daughter Veena that accused wanted to grab his house of 26 yards situated at Sector 7, Rohini, where he was residing with his wife and this fact was never told to him earlier either by his daughter Veena or by deceased as he is a heart patient and it was also informed that deceased used to tell her mother that accused were having a bad eye on his said house as the deceased was brought up by him and her marriage was also performed by him and that PMR was received on 25.10.2007 and that his daughter Veena lodged a complaint against SI Dharampal before ACP and the matter was handed over to some other PS and the document on which SI Dharampal got his signatures is Ex.PW7/B.
38. In his cross examination on behalf of accused, PW7 replied that his brother in law Babu Lal was the mediator of the marriage. He further replied that he did not think of breaking the marriage because of the demand of the accused persons for a guinea of gold before the marriage and that he had never told this fact to the police or to anybody in his statement. He replied that he had not disclosed SC No.187/10 Page 66/119 anything to the police or to anybody about any kind of demand of dowry by the accused nor of any harassment to his grand daughter Sapna. He further answered that Sapna and accused Anil used to come to his house and many a times they even stayed there but Sapna had never complained him against accused Anil or any of his family members regarding any kind of demand etc. The facts that he reached Gupta Nursing Home along with his wife on the day of incident was confronted with his previous statement Ex.PW7/DA from portion A to A, where the same was found recorded but he did not remember the same in his cross examination. Again he did not remember if he had stated in his statement to the police that deceased was lying on a stretcher outside the said nursing home and she was dead by that time and accused persons along with father of accused Sanjeev namely Padam Chand Jain were present there and he was again confronted with his said statement from portion B to B where it was so recorded. He categorically admitted that his wife Smt. Asharfi Devi is a patient of acute epilepsy but he did not know if his daughter Veena was also suffering from the above said disease or if the deceased was also suffering from the said disease and he volunteered that till the deceased remained with him before marriage, she was not having said disease, but he did not know if she was suffering epilepsy after the marriage. He answered that although he had become suspicious about the death of Sapna while SC No.187/10 Page 67/119 drying the clothes at the roof, but as the accused had told him that he should look to the minor children of the deceased and therefore, he had not made any complaint in this regard to the police at that time nor he made any complaint against accused to the police at any point of time and at the time of deposition, both the children of the deceased were with the accused. He admitted that he had not stated in his statement to the police that the dead body of Sapna was surrounded by all the accused and he was not allowed to see the dead body of Sapna. He further admitted that he had not complained to the ACP on 03.10.2007 when he went to meet him that he was not allowed to see the dead body of Sapna by the police officials. He replied that although he was suspicious about the death of Sapna but still he had gone to get the PME waived off to the ACP and that he had seen Ex.PW7/B which is signed by him at point A. He admitted that in the said statement it was mentioned that he had read over his statement and heard it and understood it correctly before signing the same. He admitted that they had not made any complaint to the DCP or ACP of the area that the police official was obtaining their signatures on some papers without showing the same to them. He further admitted that Sh. Ajay Aggarwal, retired as an I.G of Delhi Police, is the son of his maternal uncle, who could not attend the rituals of the deceased, but he had not made any complaint to Sh. Aggarwal with regard to the conduct of police officials and SC No.187/10 Page 68/119 also of his suspicion or obtaining his signatures on various documents. He replied that when they had gone to the ACP, Tilak Nagar, he had produced Ex.PW7/A to the ACP for waiving off the PME and at that time also, he did not tell the ACP that he was having any suspicion on the death of Sapna or that he wanted the PME to be conducted. He admitted that if ACP would have agreed, the PME would have been waived off on the body of Sapna and they would have been satisfied for that. He replied that he had not stated in his statement to the police that SI Dharampal in connivance with accused Rajender, who had retired from Delhi Police in the same year, got an application prepared from his grand son for waiving off the PME on the body of the deceased. He further admitted not to have told to the police that they all came back to the house of accused persons at about 3.30 or 4 p.m but SI Dharampal did not send the dead body for PME and that they found that accused Rajender had gone somewhere for making efforts for not getting the PME conducted on the dead body of Sapna and that at about 7.30 p.m, he asked SI Dharampal to send the dead body for PME. He replied that he had not gone to the mortuary. He further replied that after coming back from the office of ACP, he had not tried to see the dead body of Sapna with regard to presence of any injury on the said body nor his daughter Veena, her three sons or other relations tried to see the body though there was no obstruction or hindrance at that SC No.187/10 Page 69/119 time. He admitted that there were about 8 or 9 persons from his side who had gone to the office of ACP. He admitted not to have stated to the police in his statement on 04.10.2007 that accused Sanjeev and SI Dharampal came to the house of his daughter Veena where he along with his family members was present and were waiting for the dead body of Sapna and the SI asked them to sign some papers which were necessary for getting the dead body and that they all were made to sign the said papers on which something was written. He admitted that cremation of Sapna was done by Anil and all their family members had participated in the same and other rituals and ceremonies. He answered that his daughter Veena had not disclosed the identity of the ladies who were whispering regarding unnatural death of Sapna by hanging herself. He admitted not to have disclosed to the police or to any other higher official about the said fact of whispering of ladies about hanging of the deceased herself being a suicide or that the accused persons had admitted that fact and he volunteered that police had already been informed on phone number 100 by someone. He answered that the person who called the PCR did not meet him in the house of the accused. He admitted that he himself did not try to talk to those ladies as he was not knowing their identity. He was further confronted with his statement Ex.PW7/DA where the fact of accused Anil, Lata and children of accused Anil coming to his house at Rohini on SC No.187/10 Page 70/119 13.10.2007 and telling about the date of Kriya ceremony of the deceased, was not found recorded in the same. He was further confronted with his said previous statement Ex.PW7/DA where the fact of accused leaving without performing the Kriya ceremony of the deceased after locking the house, was also not found mentioned and thereafter he volunteered that only accused Rajender and Anil remained in the house for performing the Kriya ceremony. He admitted not to have disclosed to the police that dead body of Sapna was surrounded by the accused and he was not allowed to see the dead body. He was confronted with his said previous statement with regard to the fact of presence of articles for funeral ceremony lying by the side of dead body, which was not found recorded in the same. He admitted that he never disclosed that he would give the said house of Rohini either to Sapna or to anybody else nor he made any Will in this regard. He admitted that accused persons never told him that the said house may be transferred in the name of the deceased. He admitted that accused Anil Kumar was having a chemist shop but he did not know if the house in which the accused were living was owned by them nor he could say if the accused were trespassers or tenant in the said shop and the house. He admitted that deceased had never told him that the said shop and the house was not owned by accused Anil Goel and Rajender Goel. He did not remember if he had accompanied accused Rajender Goel to the office of Sub SC No.187/10 Page 71/119 Registrar when the sale deed of the said house was made but he admitted to have visited the said house when it was being constructed by accused persons and he admitted that it was accused Rajender Goel who was constructing the said house. He did not know if the contractor for the construction of the said house was engaged by his grand son Gulshan nor he could tell the area of the said house but he admitted that said house was constructed up to second floor and he further admitted that accused Anil Kumar was the only son of accused Rajender Goel. He admitted that whenever he visited the house of accused persons, he was treated well by accused Rajender Goel and his family. He did not know if accused Anil Kumar was having chemist shop since the year 1997, but he admitted that accused Anil was in the business of chemist shop since 2000. He answered that he could not say if deceased had died when she had gone to the roof for drying clothes after feeling giddiness.
39. PW11 Gulshan Goel, the elder brother of the deceased, deposed that initially the matrimonial home of the deceased was at Police Quarters, Vikas Puri, and afterwards they shifted to the said premises at Vijay Vihar, Uttam Nagar and after that the behaviour of accused persons became very bad towards his sister as they wanted the amount spend on the construction of the said house to be paid by them (the witness side) and that even he was asked by the father in law of the deceased to make payment towards the said amount and SC No.187/10 Page 72/119 since he was not in a position he kept quiet keeping in view the nature of relation and thereafter he stopped going to the house of his sister and thereafter he described the same story as narrated by PW4 and PW7 with regard to two stories told by the accused with regard to the death of the deceased and the conduct of SI Dharampal and what happened on Kriya ceremony on 14.10.2007 and he further deposed that on 26.10.2007, they came to know that PMR has been received and FIR has been registered against the accused and he further deposed that on 27.10.2007, the accused Anil and Rajender were arrested and on 28.10.2007, both the accused made their disclosure statements in his presence which are Ex.PW11/G and Ex.PW11/H signed by him and on 29.10.2007, pursuant to his disclosure statement, accused Anil got recovered one iron rod from a drain near his shop which was sealed and seized vide memo Ex.PW11/J and he also pointed out the place of hiding the chunni vide memo Ex.PW11/K and got recovered one chunni of yellow or orange colour from Kakrola turning which was sealed and seized vide memo Ex.PW11/K1 and the IO also prepared the sketches of the place of recovery of the said articles and that on 27.10.2007, a mobile phone was recovered from the possession of accused Anil which was sealed and seized vide memo Ex.PW11/L and that he had signed the inquest form at point A which is Ex.PW11/M and he identified the mobile phone as Ex.P1, the chunni as Ex.P2, the iron SC No.187/10 Page 73/119 rod as Ex.P3.
40. PW11, in his cross examination on behalf of the accused, admitted that accused Anil was the only son of accused Rajender Goel and that he and his mother Smt. Veena Goel had reached the said nursing home only on the day of incident. He did not know if on 26.10.2007, his statement was recorded by the police, but he was called in the PS along with his mother Smt. Veena after the receipt of PMR. He did not remember if he had stated to the police on 26.10.2007 that he had not accompanied with his brother Jatin and mother Veena Goel and his Nana Tara Chand Gupta and Nani had also reached the said nursing home and he was confronted with his previous statement Ex.PW11/DA where these facts were so recorded. He admitted not to have inquired from the doctor of the said nursing home with regard to cause of death and he had not seen the body of Sapna as it was covered with a white sheet and neither he nor any of his family members had tried to see the dead body and that his Nana and Nani (maternal grand parents) had not arrived at the said nursing home in his presence. He admitted not to have stated to the police in his statement that one year prior to the incident, the accused persons had shifted their residence from Vikas Puri to Uttam Nagar and after shifting, the behaviour of accused persons became very bad towards his sister due to asking for the amount spent on the construction of the said house and he further SC No.187/10 Page 74/119 admitted not to have stated to the police that father in law of his sister asked him to make the payment towards the amount of the said construction. He further admitted not to have stated to the police that he stopped going to the house of his sister or that dead body was completely covered with a white cloth or that the accused informed them that deceased was no more in the world, on which the condition of his mother became bad. He had not told to the police in his statement that thereafter, leaving him and his mother at the said nursing home, the accused persons took the dead body to their residence or that accused Sanjeev asked to take the dead body for cremation as they were already late or that on the dictation of SI Dharampal, he had written the application Ex.PW7/A. He replied that SI Dharampal was not known to him prior to the incident and he could not say if the said SI was knowing as to whether his sister had married with Anil since last eight years and same was his reply with regard to the facts as to whether SI Dharampal was knowing that elder daughter of the deceased was aged 7 years and son was aged 5 years. He further could not tell if SI Dharampal was knowing his residence as M1/1, New Mahavir Nagar, Tilak Nagar, Delhi, and he admitted that all the said facts were mentioned in Ex.PW7/A. He replied that on 03.10.2007 when he presented the application Ex.PW7/A to the ACP, neither himself nor any of his family member informed the ACP that application was dictated by SI SC No.187/10 Page 75/119 Dharampal. He volunteered that on 05.10.2007, they had gone to the ACP and told him about the two stories of death at the roof while drying clothes and of committing suicide by the deceased, but he had not given these things in writing to the ACP nor he stated to the police that on 05.10.2007, they told the ACP about the conflicting versions with regard to death. He did not remember if he had stated to the police that ACP had refused to waive off the PME on the ground of death being unnatural or deceased not suffering from any illness and he was confronted with his said document Ex.PW7/DA where it was not so mentioned. He was further confronted with his said application Ex.PW7/DA with regard to the facts of coming back to the house of accused persons from the office of ACP and accused did not turn up till 8 p.m on the pretext of trying to talk with higher authorities for waiving off the PME, where the same was not found recorded and again he admitted not to have stated to the police that in the morning of 04.10.2007, SI Dharampal and accused Sanjeev coming to their house at 8.30 or 8.40 a.m with some written documents on which their signatures were obtained on the pretext of the same being just a formality for getting the first number in the autopsy and the said documents would be torn thereafter or that they all signed those documents without going through the same nor they were allowed to go through the same. He admitted that cremation as well as other rituals of the deceased were performed by her husband SC No.187/10 Page 76/119 Anil and his family members. Similarly, he did not disclose to the police with regard to accused informing them that deceased had committed suicide or that on 14.10.2007, again the cause of death was asked from the accused to which they could not satisfactorily answered and there was a quarrel on which police was called but no action was taken by the police. He admitted that no independent public witness was associated by the IO from the said place of recovery of the said two articles. He admitted that he had stated in the statement in the court of Guardianship in case No.185/08 that accused Anil was keeping his wife Sapna and children well and happy.
41. PW17 Nalin Gupta was running a shop of mobile phones and previously he used to run a PCO/STD shop and was having phone numbers 25631726 and 725 and that about 4years back, he was informed by police officials that from the above mentioned number 25631726, one call was made to the PCR regarding the murder of one lady and that he did not know the name of the person who had made the said call. In his cross examination on behalf of the accused, he replied that police officials from PS Uttam Nagar had made inquiries from him but he did not remember the date, but they visited after about one hour of the said call and thereafter no police official had contacted him in this regard not any police official recorded his statement on 27.11.2007 and he was confronted with SC No.187/10 Page 77/119 his previous statement Ex.PW17/DA where the said date was mentioned. He replied that phone call was made from the instrument having coin insertion facility for making the call, but he himself did not hear the said phone call being made from the cabin of the PCO. He answered that he had not brought any document to show the operation of PCO by him against the said phone numbers because it was closed subsequently.
42. PW18 Jatin Goel, again the brother of the deceased, deposed regarding receiving a phone call from his brother Gulshan on 03.10.2007 with regard to serious condition of his sister and to reach her matrimonial home at Uttam Nagar and when he reached there, he saw the dead body and thereafter his Nana and Nani ji also reached there and thereafter he deposed on the lines on which PW4, PW7, PW11 have deposed with regard to said two stories of the cause of death, conduct of SI Dharampal, moving of application for the waiver of the PME Ex.PW7/A, refusal of the ACP to waive off the same and accused Rajender Goel still trying to get the same waived off and he further deposed that SI Dharampal was not allowed to inspect the dead body on the pretext of the prestige of the family, but two photographs of the face of his sister were taken by the SI and thereafter he deposed regarding the autopsy conducted on 04.10.2007, SI Dharampal with accused Sanjeev coming to their house, obtaining their signatures on a letter on the pretext of SC No.187/10 Page 78/119 expediting the autopsy which is Ex.PW18/A which bears his signature at point A and the last rites were performed by accused Anil, whispering of some ladies, as told to him by his mother, that it was not a natural death but was a murder and thereafter on the day of Kriya ceremony a quarrel took place in the said manner.
43. In his cross examination on behalf of the accused, PW18 replied that he had not stated to the police that he along with his mother Veena, brother Gulshan had immediately gone to Gupta Nursing Home where Sapna was lying on a stretcher and he was confronted with his previous statement Ex.PW18/DA where it was so recorded. Again, the fact of his Nana Tara Chand Gupta and Nani reaching there was confronted with his said previous statement where it was found so recorded though he has denied to have stated so to the police and the fact that they all took the dead body of Sapna to Vijay Vihar to the house of accused was also found recorded in his previous statement though he denied to have made the same to the police. Again the fact that SI Dharampal dictated Ex.PW7/A to his brother Gulshan was stated to him by the police, but on confrontation with Ex.PW18/DA, it was not found so recorded. Again the fact of accused Sanjeev along with SI Dharampal coming to his house and obtaining his signature on the said pretext was not found recorded in his said previous statement. He admitted that SI Dharampal was not knowing his residential address when the letter SC No.187/10 Page 79/119 Ex.PW7/A was written by his brother. He admitted the contents of the letter with regard to making inquiries about the cause of death and having no suspicion regarding the death of the deceased. He answered that his signatures were obtained on Ex.PW18/A which was written at that time, but it was not allowed to be read by him. He admitted that the date mentioned in Ex.PW18/A is 03.10.2007 and not 04.10.2007 and he admitted that in the said document, below the signatures of SI Dharampal, the date is also mentioned as 03.10.2007. He had not made any statement to the higher police officials that his signatures were obtained on 04.10.2007 on a document by SI Dharampal without allowing him to read the same and again he was confronted with his previous statement Ex.PW18/A with regard to conduct of the accused in not allowing them to see the dead body or it was surrounded by accused, where it was not found so recorded. He admitted that accused Anil Kumar was the only son of accused Rajender Goel and the said house was owned by accused Rajender Goel and said chemist shop was also owned by him. He had not stated to the police that accused Rajender Goel had not come till 8 p.m and then his Nana ji asked SI Dharampal to shift the body to hospital for PME as accused Rajender Goel was delaying the PME. He had not stated to the police that accused Rajender Goel told the SI that PME may not be conducted in the present case. He had also not stated to the police SC No.187/10 Page 80/119 that he along with his family members went straight to the house of his sister where her dead body was already brought from the nursing home.
44. Admittedly, there is no eye witness of the incident as to how the deceased died and the case is resting on circumstantial evidence. Needless to repeat the law that "When a case rests on upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else;
(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
(5) if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted.SC No.187/10 Page 81/119
(6) onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea."
45. The reference for the said proposition may be given of the judgments of the Hon'ble Supreme Court as AIR 1954 SC 621, AIR 1984 SC 1622, 2008 (3) RCR (Crl.) page 563, 2008(1) RCR (Crl.) 870, 2009 (1) RCR (Crl.) 251.
46. First circumstance thrown against the accused is that the death of the deceased was homicidal. If it is established on the record, then it goes to the root of the matter, otherwise the whole case of the prosecution with regard to murder of the deceased is washed away.
47. To prove the death as homicidal, the prosecution has substantially relied upon the deposition of autopsy surgeon Dr. L.C. Gupta, PW24, and his report Ex.PW24/A and the 42 photographs taken at the time of postmortem examination of the dead body.
48. The Ld Defence Counsel has strong objection to the said PMR Ex.PW24/A and the photographs and he has vehemently argued that findings of the autopsy surgeon are false, manipulated even to the extent of creating the alleged ligature mark on the neck and alleged antemortem injuries on the body of the deceased during PME and it is because of this reason that the PMR was handed over after a delay SC No.187/10 Page 82/119 of 21 days. He has further argued that even otherwise asphyxia due to strangulation was not possible in this case and against the established medical jurisprudence. The Ld. Defence Counsel has further tried to impeach the credit of the expert witness PW24, not only by confronting him with certified copies of judgments of the other courts, other PMRs showing reversing of the opinion of PW24 by medical boards, but even by showing previous involvement of PW24 in corruption cases as such an expert witness and argued that earlier PW24 has changed his opinion or his opinion was overruled and this was for unlawful considerations.
49. On the other hand, Ld. Addl. PP has submitted that this court must deal with the present PMR without any bias of the previous conduct of the witness and that PW24 has sufficiently and logically replied to the allegations of the Ld. Defence Counsel in his cross examination itself and that PW24 has been exonerated of all the charges against him by various competent authorities. Ld. Addl. PP has further contended that the initial Enquiry Officer of Police, PW20, SI Dharampal's conduct is under suspicion also who was subsequently removed from the enquiry and that a poor public person or a layman being the complainant or the victim, has no control over the investigation agency who may not have collected the PMR from PW24 resulting into delayed receiving of the same. SC No.187/10 Page 83/119
50. Before proceeding further, one thing which is striking my judicial mind again and again is that as to who advised the prosecution to produce PW5, Priyanshi, a child witness of 10 years of age, who may not stand the cross examination revealing the truth despite her tutoring, the PW9 Dr. Yogesh Malhan, who examined the deceased at the spot and was a known person of accused Anil, a chemist by profession, PW20 SI Dharampal, against whom allegations were there for supporting the accused and that was why enquiry was transferred to the then SHO, PS Uttam Nagar and PW25, DR. B.N. Mishra, again a forensic medicine expert of the same department to which PW24 belonged, in the witness box. What was the need of producing PW25, Dr. Mishra, when the signatures and handwriting of Dr. Anita were already and sufficiently proved by PW24 himself in his deposition?
51. Be as it may, let me take up the question as to the time when the deceased Sapna Goel can be said to have died. PW24 has deposed in the court as well as also written in PMR Ex.PW24/A that time since death was 36 hours prior to PME and within about 45 hours after taking her last meal by her. As per PMR Ex.PW24/A, the PME was conducted on 04.10.2007 and was started at 1.20 p.m and finished at 2.50 p.m. From this point of view, the deceased died sometime between 1.20 a.m to 2.50 a.m during the night intervening between 02.10.2007 and 03.10.2007 and she must have taken her SC No.187/10 Page 84/119 last meal between 8.30 p.m to 9.20 p.m on 02.10.2007. But the report Ex.PW24/A and the deposition of PW24 mentioned in the column "stomach" as empty showing no particles of semidigested or digested food and even in intestine no food particle was found. It is difficult to believe that stomach would be completely empty after 45 hours of taking meal and if it was not so, then PW24 was having no basis to say that deceased died within 45 hours of taking her last meal.
52. The medical expert's version that time since death was 36 hours prior to PME, which comes between 1.20 a.m to 2.50 a.m on 03.10.2007 is sharply contradicted by ocular version of PW5, Priyanshi, the daughter of the deceased, aged 10 years, coming to depose before the court from the admitted custody of mother of the deceased, her own maternal grandmother PW4 Smt. Veena Goel and the child deposed in her examination in chief that initially she had told the police that her mother, the deceased, had dressed her up and her brother for school on the day of alleged incident of falling of her deceased mother. It is not the case of the prosecution that school of the said child was not of morning shift. It means that the deceased was alive on 03.10.2007 in the morning and dressed up her children for school. PW5, the child admits in her examination in chief itself that these facts were told by her to the police but subsequently whatever her Nani (maternal grandmother) had asked her to tell, was SC No.187/10 Page 85/119 told by her to the police. The irresistible conclusion is that deceased was alive in the morning of 03.10.2007.
53. The said time of death given by autopsy surgeon PW24 is further nullified by the Dr. Yogesh, PW9, who also finds corroboration from the deposition of PW5 and vice versa also. PW9 frankly admitted to have known accused Anil Kumar, being the chemist of the area and he deposed that when he examined the deceased, at about 9 a.m on 03.10.2007, at her residence, the body of Sapna Goel was warm but pulse was very feeble and it could not be recognized without proper instrument and he suggested to take her to a hospital immediately. The natural inference is that even PW9 Dr. Yogesh was not sure as to whether the deceased was dead or alive on 03.10.2007 at 9 a.m by symptoms suggesting that the possibility of her being alive at that time could not be ruled out. Thus, in view of said evidence on record, the opinion of PW24, with regard to time of death of the deceased, is doubtful and cannot be said to have been established beyond reasonable doubt.
54. Coming to the "horizontally placed, deeply grooved ligature mark found present at mid 1/3rd part of the neck which was extending from right lateral aspect of neck to the nape of the neck at its right half, in the form of abraded bruise with echymosis around the edges in an area of 11 cm x 1.5 cm to 1 cm with underneath SC No.187/10 Page 86/119 haemotomma on incision and dissection of neck". The "nape of the neck" admittedly and as per dictionary meaning also, is "back of the neck". It means that the said ligature mark was extending from the back up to below the ear or jaw on the right side neck of the deceased and its width was 1.5 cm to 1 cm. As per deposition of PW24 and PMR Ex.PW24/A, whole front of neck and left side of the neck and its lateral aspect up to left side nape of neck was intact and no abnormality was detected. It is further mentioned that hyiode, thyroid and cricoid cartilages were without any abnormality.
55. The autopsy surgeon PW24 categorically admitted in his cross examination that no ligature material was submitted before him either before or after the finalization of his report. He was further asked with a question to the effect that as he has not seen or examined any ligature material, could he opine as to what kind of ligature material would have been used as per his opinion, to which PW24 replied that in this case, a soft dupatta like or saree like material may have been used to put sustained pressure around the neck of the deceased prior to her death. The natural inference is that PW24 opined the pressure of ligature material on right side of neck without examining any ligature material and admittedly there was no mark on the front and left side of the neck of the deceased nor any abnormality was detected.
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56. PW24 was asked a further question that by dupatta or saree or such like material the ligature mark should have been there around the neck and the blood vessels on the left side of the lateral aspect of the neck supplying blood to the brain were not having any constricting force, to which he replied that absence of ligature mark, pressure mark or bruises at the other side of the neck especially when there is deep sitting of bruise on the other side along with deeply grooved ligature mark, can be accounted for by the maintenance of continuous pressure over the neck till setup for death and as the blood vessels available in the skin of other side of the neck became empty because of application of force continuously and the cessation of heart beatings resulted till the pressure was removed then. He further replied that as such hardly 4.5 kg weight pressure is sufficient to obstruct the veins supply of the neck which is sufficient to interfere with the blood drainage from the brain to the heart and vice versa and to obstruct arterial supply in the neck, a sustained pressure of 10 kilogram weight is sufficient. The same will not at all cause pressure mark in the form of ligature mark or bruise or haemotomma on the other side of the neck or even in the same side of the neck but he admitted that he has not mentioned the said facts in his PMR as he was not writing a text book. He further observed no finger marks on the neck of the deceased and by dupatta or saree, the ligature mark may or may not be present on the whole SC No.187/10 Page 88/119 neck, even the opinion can be made of strangulation or sustained compression of the neck by an autopsy surgeon.
57. Whether the said opinion of absence of ligature mark on the other side of the neck, opinion of strangulation by sustained compression of neck with no mark of violence or nails or finger and that too with a soft dupatta or saree of the width of 1.5 cm to 1 cm deeply grooved can be sustained? Let me turn to PW25 Dr. B.N. Mishra as to what he has to say in this regard. He admitted, after going through the PMR Ex.PW24/A, that it is mentioned in the report that said ligature mark on the said right portion of neck was present up to nape of the neck and it is also mentioned that 2/3rd part of neck was not having any ligature mark. He admitted that since there was no ligature mark on 2/3rd portion of the neck, therefore, there was no constricting force on that portion and thus, there was no constricting force on the underlying blood vessels which supply blood to brain and as such, the supply to the brain was not effected from the said blood vessels. He further saw the photograph Ex.PW25/X (the photographs have been numbered by me at the back because of convenience for reference because the same were collectively exhibited earlier) at Sl.No.8, depicting excision of the neck on the anterior and right lateral aspect of the neck does not show any haemotomma, bruisings or extra vesation of blood within the area dissected but few minor hemorrhagic spots seen in the said SC No.187/10 Page 89/119 area which could be caused by postmortem artefact.
58. What PW25 observed was that in the present case, the ligature mark lying on lateral aspect of the neck could cause compression of blood vessels on the right side but remain intact on the left side and trachea, that is why, if there was constriction of the neck on the right side, could cause partial obstruction of the blood to the brain without causing fetal outcome.
59. The said two opinions are contradictory to each other. The contention raised by Ld. Addl. PP is that PW25 did not conduct the autopsy and as such, his opinion is not reliable. However, this contention ignores the fact that he deposed only on the basis of report of PW24 who conducted autopsy and got taken the alleged photographs and as such, I find no force in the said contention raised on behalf of the State. Thus, PW25 uprooted the theory that a ligature mark only on one side caused by sustained pressure can made the vessels, supplying blood to brain, empty, as deposed by PW24.
60. Let me turn to Medical Jurisprudence in order to know as to whether the one sided constriction of neck may result in asphyxia due to strangulation. The Ld. Defence Counsel has relied upon the LYON'S MEDICAL JURISPRUDENCE & TOXICOLOGY, 11th Edition 2009, published by Delhi Law House, 77, Gokhale Market, SC No.187/10 Page 90/119 Opp. Tis Hazari Courts, Delhi110054, in this regard and in my considered opinion he has rightly relied the said treatise, which has otherwise been quoted by Hon'ble Superior Courts noticed by me in various criminal cases during my experience of study of law as such a student of legal field.
61. Defining the "strangulation" in Chapter LIX (59) at page 967 of the said book, the expert has observed as under:
"In strangulation the constriction of the throat is produced by means other than the weight of the body. The means used may be a ligature, the hand as in throttling, some hard object as, for instance, a billet of wood, etc. The modes of death in strangulation are the same as in hanging without a drop. Hence the postmortem appearances are also very similar. The main points of difference between the postmortem appearances of strangulation and those of hanging are important, as strangulation is usually homicidal, whereas hanging might practically always be suicidal."
62. Describing the detailed effect on the neck in case of strangulation by ligature, it is mentioned as follows:
"Strangulation by ligature - Where a ligature has been used a mark will, except in very exceptional cases, be found on the neck. This usually, but not invariably, differs from a hanging mark, in being truly transverse in direction, low on the neck, and continuous, i.e. completely encircling the neck."
63. Explaining the status of strangulation by compression of the neck with a stick or some other hard object, it is mentioned at page SC No.187/10 Page 91/119 968 as under:
"It is rarely met with in India. Usually, on stick placed across the front of the neck is used; but sometimes two sticks are employed, one placed behind, and the other in front of the neck. This mode of strangulation causes abrasions and bruises on the front of the neck, and usually severe local injury such as fracture of the cartilages or hyoid bone (bansdola)."
64. At page 969, it is further mentioned, while showing the position of the tongue in cases of strangulation and hanging, that "in strangulation, less often than in hanging, rapid death may take place from inhibition of the heart, due to pressure on the vagus nerves. In these cases the signs of asphyxia might be absent."
65. Answering the question as to whether death was due to strangulation, the author, at page 970, replied as follows:
"It may be pointed out, that in exceptional cases death may occur by strangulation, without any mark being present on the neck. This may happen if a soft ligature has been used. It rarely, however, occurs, as even when a soft ligature is employed, much superfluous violence is commonly applied, and a distinct mark on the neck is usually present. If no marks of violence, either external or internal, are to be found on the neck, strangulation is very strongly, but not positively, contraindicated. When strangulation has been effected by means other than the use of a ligature much violence is almost always used - often to other parts of the body as well as the neck - and there is seldom any difficulty in arriving at a conclusion as to the cause of death."SC No.187/10 Page 92/119
66. Uprooting the pressure of ligature material caused death in strangulation, at page 971, the author has opined that :
"A ligature mark on the neck, corresponding in appearance to a strangulation mark, cannot, by itself be taken as evidence of death by strangulation. Such a mark may be the result of the application of a ligature to the neck after death, or have been accidentally produced by the pressure a rightfitting article of dress, or be the result of putrefactive swelling against a string tied loosely round the neck pseudoligature mark. Hence, even when a ligature mark is found on the neck, corresponding in appearance to a strangulation mark, to establish the fact that death was due to strangulation requires proof that the pressure of such ligature was the cause of death.
Such proof may be afforded by the presence of the general postmortem appearances of death by strangulation. It must, however, be recollected that in hanging, as well as in strangulation by a ligature, death is due to the pressure of a ligature on the neck. Further, that in hanging the presumption is always in favour of suicide, while in strangulation it is in favour of homicide. Hence, in all cases of death from pressure of a ligature on the neck, all appearances indicating the cause of death to be hanging, rather than strangulation, or vice versa, should be most carefully noted."
67. Posing a question as to whether the strangulation was homicidal or suicidal or accidental, the author replied at page 971 itself as under:
"Accidental cases are rare. A few, however, are on record.
Suicidal cases of strangulation by a ligature are occasionally met with. To effect suicide in this way requires the employment of SC No.187/10 Page 93/119 some means whereby the ligature is kept tight, independently of any muscular effort on the part of the suicide, so that relaxation may not occur when unconsciousness supervenes. This may be achieved in various ways, e.g. by passing the ligature more than once round the neck, by twisting a stick in the tied ligature and securing the end of the stick, or by simply knotting the ligature. As regards this last method, it may be noted that the presence of more than one knot raises a suspicion of homicide, though two knots have, however, occasionally been found in suicidal cases. The number of knots does not bear any relation to the circumstances of asphyxia.
Homicidal cases - In hanging the presumption is always in favour of suicide; in strangulation it is in favour of homicide. Homicide is very strongly indicated
(a) When a ligature has been employed and there are no means for the purpose of keeping it tight after unconsciousness has occurred;
(b) When other signs present show the application of much violence to the neck or to other parts of the body; and
(c) When the strangulation has been effected by means other than the use of a ligature.
(d) Obviously, homicide strongly indicated if the hands are found tied together in such a way as to show that they could not have been so secured by the individual himself."
68. A bare reading of the said passages from the said book, go to establish that mere presence of a partial ligature mark, which may look like a corresponding strangulation mark, in itself is not sufficient to hold the death due to ligature but requisite pressure of the ligature to cause the death is further required to be proved or SC No.187/10 Page 94/119 established. Secondly, from the said point of view of the said author both the suicidal and homicidal nature of death have been ruled out in the present case.
69. What PW24 has given us to understand that the ligature material such as chunni or dupatta or a saree was tied around the neck for a considerable time and sustained pressure of at least 4.5 kg was applied continuously to stop the supply of blood to brain resulting into the death and still no ligature mark could appear on entire or major portion of the neck and at the same time, he admitted that there was no nail or finger mark or mark of violence on the neck of the deceased. To my mind and even the said treatise goes to support my view that this is possible only when the deceased was unconscious only otherwise any person, who is strangulated, would resist and try to untie the ligature material and as such, the marks of nails and resistance are bound to come on the neck of the person.
70. To cause ligature mark deeply grooved of the size of 1 cm to 1.5 cm, the requisite constriction force can only be achieved by using hard i.e. metallic ligature material such as a wire but a soft material like dupatta or saree or handkerchief would not create "deeply grooved" marks because of its elasticity nor it can create a pressure of 4.5 kg and further, if a cloth of this size is used as ligature material, it would require complete covering of neck SC No.187/10 Page 95/119 circumference and it would leave the groove ligature mark all around the neck and if metallic material is used, there must be abrasions due to scuffle or resistance of the deceased and in both conditions, signs of struggle by the deceased must be there on the neck.
71. In the said circumstances, the view given by Dr. B.N. Mishra, PW25, is more appropriate that a partial obstruction of the blood to the brain cannot cause fetal result and the said ligature mark on the right side of the neck of the deceased could not cause compression of blood vessels on the left side of neck and trachea would remain intact.
72. PW24, the autopsy surgeon, though produced the photographs taken during the PME, but he did not corelate the same with his PMR during deposition because of the reason given by PW25 that the only photograph showing dissection of lateral right aspect of the neck does not depict any haemotomma, bruisings or extra vesation of blood within the area dissected. This is the only inference which I could draw in my considered opinion from the comparison of deposition of two said experts.
73. My said conclusion is further fortified by the photograph no.4 produced by PW24, the autopsy surgeon, which depicts right side posterial and right lateral aspect of neck having a mark but the same SC No.187/10 Page 96/119 cannot be termed as "deeply grooved" and in view of my said discussion, it cannot cause strangulation resulting into asphyxia and at the same time, creation of such mark by the application of a ligature to neck after death, cannot be ruled out as has been said in the said Lyon's book on page 971. For the same reason, it is not so clearly visible in photograph no.3 wherein a doubt comes to mind as to whether there is a mark or a layer of scalp hair of the deceased. In photograph No.11, no injury or mark is visible at all in front of the neck creating a doubt towards theory of sustained pressure by a ligature material. Thus, it is well established in the deposition of PW24 that the expert was escapist in his answers when he answered that he was preparing a PMR and was not writing a text book so as to incorporate his theory of vessels of other side of neck becoming empty because of application of continuous pressure and the cessation of heart beating resulted till the pressure was removed then, while writing the said PMR and it is for this reason that he had got taken the photographs also to his suitability only and it also explains as to why he did not go for a videography of the PME and thus, adopted an approach of "picks and choose".
74. In view of my said doubt over the autopsy expert PW24, I am constrained to look into some illegal aspects also and as such, let me read as to what IO of the case has to say with regard to cause of death of the deceased which he has recorded by way of disclosure SC No.187/10 Page 97/119 statement of accused Anil Kumar, which is barred by law of evidence to be read as such except the part leading to the recovery of a distinct fact.
75. As per disclosure statement of the said accused, they were asking the deceased to get the house of PW7, her maternal grandfather, transferred in her name, to which deceased did not agree on which she was beaten and she rushed outside the house but she was caught and the accused Santosh and accused Vijay Laxmi @ Lata gagged her mouth but deceased tried to escape and in the meantime, her chunni came to the hand of accused Anil Kumar which was pulled by him towards backside due to which neck of the deceased was throttled and she died.
76. Again, requisite force for constriction of the neck for throttling was required while pulling the chunni around the neck of the deceased and if a person pulls a thing towards him, the force would be reduced to nil as the object, which is pulled, comes near to him and secondly, as a natural reaction of the person who was being pulled, his or her hands would automatically go to the material and neck in order to get rid of the material and throttling and in such a situation marks of violence, nails are bound to appear on the neck besides the complete ligature mark at least in front of the neck and if the pull was violent, chances of breaking of thyroid cartilage cannot SC No.187/10 Page 98/119 be ruled out. This is said by me while conscious of the fact that the deceased was wearing a saree and blouse at that time as is visible in photographs Ex.PW12/A taken at the house of the deceased after death and the photographs produced by PW24 during autopsy and it is not the case of the police or the prosecution that her clothes were changed by the accused or otherwise after her death and as such, no "chunni" was available which was pulled to cause her death, and at the same time, I am conscious of the fact that fashion of the day may allow to wear a chunni over saree but law does not allow which looks the fact as it is which are produced and proved on record. Thus, this theory what is recorded in the disclosure statement also fails qua the cause of death of the deceased as homicidal.
77. Let me now come to the point as to what the accused have to say with regard to alleged antermortem injuries on the body and death of the deceased. Law commands that the accused is not required to prove his defence "beyond reasonable doubt" and it is sufficient if he puts a dent in the prosecution story by way of making it only "probable" in the circumstances. Accused has got a right to remain silent, being individual, against the mighty State having all powers and facilities at its command, having the duty to prove the case against the accused "beyond reasonable doubt" and that burden is much more in case of circumstantial evidence.
SC No.187/10 Page 99/119
78. The accused submitted that the deceased suffered an epileptic attack, which is a hereditary disease, and during seizures and convulsions, she threw her hands and legs against the hard surface at the roof suffering injuries on her body and in that state, the gastric discharge from the stomach could not come out of her mouth and same went inside her wind pipe, chocking it and she died due to suffocation in this process while she had gone to roof for drying wet clothes on the day of incident.
79. The Ld. Defence Counsel, for the said defence, pointed out that PW7 Tara Chand had admitted in his cross examination that his wife was suffering from acute epilepsy and he did not know if the deceased being his maternal grand daughter was suffering with the said disease after the marriage, though he claimed her not to have suffered any such attack prior to the marriage. He has further pointed out that PW4 Smt. Veena Goel, mother of the deceased and daughter of PW7, also admitted that her mother Smt. Asharfi Devi was suffering from epilepsy 15 or 20 years ago. She (PW4) denied the suggestion that she was also suffering from acute epilepsy and for that reason she was admitted for 4/5 times in Amar Leela Hospital. PW4 here volunteered that she was admitted in the said hospital once for surgery of removing stone but she denied that the deceased was also suffering from the said hereditary disease. SC No.187/10 Page 100/119
80. The Ld. Defence Counsel further pointed out the answers given by PW24 in this regard. PW24 was asked if a person suffering from acute seizures and convulsions, there would be a secretion in the trachea, to which he replied that it may or may not be and the autopsy surgeon insisted that he had already ruled out any such possibility as a cause of death in the PMR.
81. It is further pointed out on behalf of accused that PW25, another doctor of forensic medicine, has answered to the same question put to PW24, that it depends upon case to case and in case of a person, having the stage of convulsions and seizures, loosing his consciousness, then physiological and tracheal secretion takes place but it is not necessary that same secretions would drain towards lower respiratory (bronchus and lungs) and it depends upon the posture of the body and emergency handling of the same, but in the present case the possibility of any gastric aspiration is ruled out but as trachea contains frothy secretion mixed with blood, the possibility of this trachea secretions being aspirated into the lower respiratory, cannot be ruled out. PW25 further answered that if a person suffers seizures and convulsions, the said secretion is possible. Again PW25 was asked with a question as to whether the bruises mentioned in the PMR Ex.PW24/A from point B to H could be caused during seizures and convulsions suffered by a person throwing his hands and legs violently on the hard surface like roof of SC No.187/10 Page 101/119 the house, to which PW25 replied that it depends upon the conscious level of patient, duration, intensity of the episode and surrounding area and if a person is in the stage of convulsions for a long duration with intensified convulsive stage, surrounded by hard and uneven surface, it could cause such type of injuries.
82. The Ld. Defence Counsel, with the said opinions of PW24 and PW25, further supported his said defence again by the said treatise on Medical Jurisprudence by Lyon, wherein at page 973, causes and effect of suffocation have been described as under:
"Closure of glottisChoking : Suffocation thus caused often occurs accidentally from the impaction of foreign bodies - masses of food, for example - in the throat or air passages. Foodstuffs regurgitated during a fit of vomiting or in conditions such as an epileptic seizure or a hiatus hernia may be drawn into the air passages by an inspiratory effort. This is especially likely to happen if the person is drunk or under the influence of sedative drugs or agents such as chloroform. Spasm or oedema of the glottis may cause suffocation. This may be the result of disease or of inhalation of irritating poisons, either liquid or gaseous."
83. Further, the said author was dealing with the question as to whether death was due to suffocation, at page 974 and in answer it is written as under:
"The chief points bearing on this question are (1) Wellmarked signs of asphyxia may sometimes be nearly SC No.187/10 Page 102/119 absent, and yet death may have been caused by suffocation.
(2) The signs of asphyxia may be present, and those of drowning, hanging, and strangulation absent, and yet death may not have been the result of suffocation by violence, but may have been due to asphyxia of disease, or poison, e.g. Epilepsy, tetanus, or strychnine poisoning. Hence, in cases of alleged suffocation by violence, much depends on the presence or absence of signs indicating the employment of violence, such as would produce suffocation. If these are absent, no positive opinion might be given, from the post mortem examination alone, as to the cause of death."
84. On the same page i.e. 974, continuing on page 975, another question has been posed as to whether the suffocation was accidental, suicidal or homicidal and the answer is written as under:
"If the deceased is an adult, the presumption is always in favour of accident. Curious accidents leading to suffocation by closure of the glottis sometimes occur. Suicidal cases are rare, but are sometimes met with. In a previous edition, a case is reported in which a prisoner committed suicide by stuffing his mouth with rags, another in which a young woman suffocated herself by stuffing a large ball of hay into her throat, and yet another of a young woman who committed suicide by shutting herself up in a trunk.
Homicidal cases are not often met with unless the victim was suffocated while unconscious marks showing the employment of violence will probably be found."
85. From the said evidence and opinions, I am of the considered opinion that the accused have successfully discharged their burden casting a shadow of doubt over the prosecution story and SC No.187/10 Page 103/119 establishing, at least, the probabilities of the deceased dying in the said circumstances and receiving injuries in the said state of seizures and convulsions on the day of incident.
86. Although I had already held that the possibilities of injuries received during said seizures and convulsions cannot be ruled out, but the injuries on the dead body are otherwise in controversy on the record.
87. The said injuries are in nature of bruises also known as contusions and the same has been defined and described by another expert Dr. K.S. Narayan Reddy, Professor of Forensic Medicine, M.R. Medical College, Gulbarga Hyderabad, A.P., in his book "Medical Jurisprudence & Toxicology (Law Practice & Procedure) First Edition, 2000, published by Andhra Law Times, 1611418/3, Dilsukhnagar, Hyderabad36 (A.P.), in Chapter II at page 169, as under:
"A contusion is effusion of blood into the tissues, due to the rupture of blood vessels, caused by blunt trauma. Contusions may be present not only in skin, but also in internal organs, such as lungs, heart, brain and muscles. The bruise is usually situated in the corium and subcutaneous tissues, often in the fat layer. In contusion, there is a painful swelling, and crushing or tearing of the subcutaneous tissues usually without destruction of the skin. The extravasated blood is diffusely distributed through the tissue spaces, and the margins are blurred. Bruises may be seen in association SC No.187/10 Page 104/119 with (abradedcontusion) or lacerations. When a large blood vessel is injured, a tumourlike mass called haemotoma is formed. A fresh bruise is usually tender and slightly raised above the surface of the skin, and even a deepseated bruise shows some swelling when compared with the opposite limb or part of the body. A bruise has lighter colour in the centre because extravasated blood is pushed outward by the impact."
88. The said author further opined that as a general rule, the greater the force of violence used, the more extensive will be the bruises, but size and shape are modified by various facts such as condition and type of tissues etc. From the said passage written by the author, it can safely be concluded that presence of serum and blood on incision of a bruise may be there with haemotomma.
89. Let me now turn to the said photographs produced by the autopsy surgeon, the PW24, in photograph No.2, bruise is not containing any serum and clot of blood, photograph no.20 depicts one bruise containing blood and as such, it can be termed as "ante mortem" but the other bruise in the said photograph is white only having no blood or clot of blood meaning thereby that it cannot be termed as "ante mortem". However, in photographs at Sl.No.9, 10, 12, 14, 15, 16, 18, 24 and 25, presence of serum and blood has been depicted in bruises.
90. These injuries including the ligature mark were not noticed by anyone at the spot, neither the accused, nor the doctor PW9, the SC No.187/10 Page 105/119 doctors at Gupta Nursing Home, PW4, PW7, PW11 and PW18, the parental side relatives of the deceased, PW12, the photographer who took the photographs of the dead body at the spot, nor the same were noticed by PW20, the initial EO, SI Dharampal, PW23, the subsequent EO and IO, PW16 the PCR official who recorded the information nor the neighbours. The same were also not reported to the ACP who rejected the request for waiver of PME nor to the DCP concerned by anyone. The documents prepared immediately after the death during enquiry of DD No.21A and inquest proceedings such as Ex.PW20/B, the request for PME, the brief fact supplied in inquest Ex.PW20/D, the death report vide form no.25.35(1)(B), Ex.PW11/M signed by PW11 also, the said injuries were not mentioned. Even in the PCR form Ex.PW16/A it is mentioned that no inquiry is there on the "neck" of the deceased, though the "neck" has been overwritten after cutting the word "body".
91. The allegation and counter allegations are on the record on behalf of persons, especially the police officials that the injuries were not there on the body of the deceased whereas PW24, the autopsy surgeon who noticed the injuries for the first time, alleged against SI Dharampal PW20, that a departmental enquiry was conducted against the SI for not mentioning the injuries in inquest papers in which PW24 appeared as a witness and strictures were passed against the SI but no documentary evidence to that effect SC No.187/10 Page 106/119 could be produced either by PW24 or by the prosecution and strangely enough such a police official has been produced on behalf of the prosecution in the witness box and in my considered opinion and strictly speaking, in terms of law of evidence, his testimony remained almost unrebutted on the record. Be it as may, this controversy further casts a doubt over the veracity of PMR Ex.PW24/A.
92. From the said controversy, another circumstance has come on the record as to who were interested in procuring such a PMR Ex.PW24/A, initially there was no suspicion in the cause of death of the deceased and both the sides including neighbour were interested in waiving off the PME as is reflected from the application Ex.PW7/A. Subsequently, somebody gave a call to PCR resulting into DD No.21/A, Ex.PW1/A and story of suicide came on record. PW4, the mother of the deceased, was not ready to take it as a case of suicide gave her protest application Ex.PW4/A containing in seven pages written on both sides, on 17.10.2007 to PW23, the subsequent IO, alleging the theory of murder of the deceased therein. Prior to that, on 03.10.2007, on the day of incident, initial IO SI Dharampal recorded the statements of PW4, PW7, PW11 and PW18, which are Ex.PW4/DA, Ex.PW7/B, Ex.PW11/B and Ex.PW18/A, wherein no suspicion of any kind was disclosed by the said relatives of the deceased. But I can see and it is visible to a SC No.187/10 Page 107/119 naked eye that in the statement of PW11 Gulshan Goel, Ex.PW11/B, it was inserted in a different pen and overwritten on the stamp of PS Binda Pur that "after receipt of PMR, action may be taken". What was the need and who or at whose instance it was inserted when there were already efforts for waiver of PME vide application Ex.PW7/A dated 03.10.2007 written by PW11, though he claimed before the court in his deposition to have written the same on the dictation of SI Dharampal and the same has been confronted from his other statement by way of cross examination making it an improvement in the deposition.
93. PW20 and PW23, the EO and IO of the case claimed that they were again and again going to PW24, the autopsy surgeon for collecting PMR and every time PW24 represented that it was not ready. The said facts were recorded by PW20 in DDs No.41B, 33B, 34B, 37B, 60B, which are Ex.PW20/H1 to Ex.PW20/H5. PW20 further answered in his cross examination that on 11.10.2007, he had received a phone call from the complainant party that he should go and collect the PMR from the concerned doctor as the same has been prepared and he entered this information in DD No.41B Ex.PW20/DA (Ex.PW20/H1 also). This fact remained unrebutted on the record and goes to establish that the said relatives were in touch with PW24. Further circumstance is that PW4, the mother of the deceased, admitted in her cross examination that they used to go SC No.187/10 Page 108/119 to the mortuary to know about the PMR and after making inquiries, they used to come back as the same was not ready but they did not meet PW24, the doctor personally. At the same time, PW4 and PW7 admitted that Sh. Ajay Aggarwal, who had been I.G of Delhi Police was cousin brother of PW7. Moreover, PW4 admittedly made her complaint against SI Dharampal on 17.10.2007 but the inquiry of this case was already transferred to PW23, SHO of PS Uttam Nagar on 15.10.2007 and all these circumstances go to show that some agency along with the complainant party, was controlling the things from behind the curtain and in these circumstances, manipulation in the PMR Ex.PW24/A and its intentional delayed delivery at the instance of said relatives of the deceased cannot be ruled out which is further established by the fact that the photographs taken during PME, as per PW24, were taken by a photographer arranged by the IO but PW20 and PW23, being the IOs, have not mentioned so anywhere nor identity of the photographer is on the record nor disclosed by anyone so as to summon him to prove the photographs Ex.PW21/1 to 42 in the technical sense of law of evidence.
94. Let me now discuss some laid down law, wherein the report of the autopsy surgeon was discarded and not relied for the said reasons as stated by me above, particularly the view given by the autopsy surgeon on a ligature mark found on the neck resulting asphyxia by strangulation wherein the Hon'ble Superior Courts SC No.187/10 Page 109/119 relied on different medical jurisprudence written by various authors including Lyon's, referred by me above. Hon'ble Allahabad High Court in case titled Lal Singh Vs. The State reported as AIR 1956 All. 731 discarded the mark on whole front of neck as there was no bruising of the subcutaneous tissues under the contused area of the neck, as given by autopsy surgeon as cause of death by throttling while relying on the said books of Medical Jurisprudence. Hon'ble Supreme Court in case titled Mohd. Zahid Vs. State of Tamil Nadu reported as AIR 1999 SC 2416 held that the autopsy surgeon disagreed with the said text books on Medical Jurisprudence without assigning any reason of his opinion, it was not safe to rely upon the evidence of doctor solely, for the purpose of coming to the conclusion that victim's death was proved by the prosecution to be homicidal. Again, the Hon'ble Apex Court in the case titled Vaduguchanti Babu Vs. State of Andhra Pradesh reported as AIR 2002 Supreme Court 2911 held that stray statement by doctor that in all cases of strangulation external injuries are not found and this cannot be used to draw inference that death was by throttling.
95. In view of my said discussion and law laid down by the Hon'ble High Court and Supreme Court and in view of Medical Jurisprudence text book cited above and in view of two contradictory opinions of two doctors on the record i.e. PW24 and SC No.187/10 Page 110/119 PW25, I am not inclined to accept the deposition of PW24, the autopsy surgeon and his report Ex.PW24/A and in my considered opinion, the prosecution has miserably failed to prove the circumstance of the death being homicidal.
96. Although I have already held that the death in the present case cannot be said to be homicidal but assuming, for the sake of argument only, that it was so, then the next circumstance marshalled against the accused is the motive for murder. Although motive is not the essential requirement to be proved for establishing the offence under the law but this is true of when there is an eye witness to the incident. However, in the case of circumstantial evidence, it gains more importance in order to form a complete chain of circumstances. Reference here is relevant of para 11 of a judgment of the Hon'ble Supreme Court in case titled Surinder Pal Jain Vs. Delhi Administration reported as AIR 1993 SC 1723.
97. Judging in the light of said law laid down by the Hon'ble Supreme Court, PW4 disclosed the motive that accused were having a bad eye over the small house at Sector 7, Rohini, Delhi belonging to her father PW7 Tara Chand and it was told to her by the deceased and she did not tell the said demand of accused to PW7 as he was a heart patient. She admitted in her cross examination that the said house was with PW7 prior to the marriage of the deceased. PW7 SC No.187/10 Page 111/119 also narrated whatever was told to him by PW4 after death of the deceased. PW4 admitted that in the Guardianship case they have admitted before the said court that accused Anil Kumar, being the husband of the deceased, was keeping her and her children well and happily.
98. Yet PW11 Gulshan Kumar, has another story to tell about the motive. As per PW11, accused had constructed the said house No.S58/A, Vijay Vihar, Uttam Nagar, Delhi, and the accused wanted the amount spent on the construction of the said house to be paid by them and he was also asked by accused Rajender Goel to make the payment of said amount but he kept quiet, not in a position to pay and considering the nature of relationship and thereafter he stopped going to the house of his sister, the deceased. Although this position was confronted to him and he admitted not to have made such a statement to the police in his cross examination, but still it is strange that he being son of PW4, did not tell her about the said demand. Both PW4 and PW11 nowhere made any such complaint to anyone nor disclosed the respective two demands made by accused to each other being son and mother. They or the deceased never raised any hue and cry against the alleged demand for a period of 7½ years of marriage. All the persons, PW4, PW7 and PW11 admitted that accused were having a well built and spacious house to live in and accused Anil was the only son of the family and he was SC No.187/10 Page 112/119 having his own chemist shop and leading a happy and prosperous life. PW18, Jatin, another brother of the deceased, had no complaints against the accused, rather he was not even knowing about any such demand. The whole story of said alleged two demands was further wiped out by innocent child, PW5 Priyanshi, who held accused Anil Kumar as a loving and caring father. In the said circumstances, even a layman will not believe such a story of alleged two demands by the accused in the said circumstance in order to constitute the same as motive to commit the murder of the deceased.
99. Coming to the other minor circumstances, pointed out against the accused, that all the accused were present at the spot on the day and time of incident. PW5 Priyanshi's deposition is sufficient to uproot this evidence who deposed that her Bua Lata and accused Sanjeev were not there, her grand parents had gone to hospital, her father had gone to the chemist shop and she and her brother were away to their school.
100. Next is the whispering of ladies heard by PW4 regarding unnatural death of the deceased by hanging herself. Admittedly, echo of the said whispering could not be heard by the court during trial despite repeated questions to PW4 and PW7 to disclose the identities of the ladies or as to what efforts were made by them to SC No.187/10 Page 113/119 know about the said ladies or as to whether they told the police about the same to seek help in recording the statements of the said ladies.
101. Next circumstance that accused were telling different explanations about sudden death of the deceased, could not be said to have been established by said contradictory statements of PW4, PW7, PW11 and PW18 which are full of improvements as is evident from their deposition reproduced above as the same were not found recorded either in their previous statements or the document and they were deposing the said facts for the first time before the court. Moreover, both the suicidal and homicidal theories of death have been already ruled out above by me.
102. Next circumstance is as to why the door of the room in which the deceased alleged committed suicide was broken and as to why the recovery of iron rod got recovered by the accused, with which they had broken the door in order to create a scene of suicide. As it was not a case of suicide even, the said circumstance does not carry any value and further the recovery of iron rod and breaking of door has itself been not established on record beyond reasonable doubt being against the established principles of recovery such as joining of independent public witness and non accessibility of persons to the place from where the recovery was effected.
SC No.187/10 Page 114/119
103. Next circumstance is the recovery of chunni at the instance of accused Anil Kumar and it is the same with which he pulled the neck of the deceased but the same was not shown to the doctor, the PW24, as ligature material for his opinion and further in view of my said discussion that the deceased was wearing a saree at the relevant time, the recovery of chunni becomes useless.
104. Thus, the prosecution has fully failed to establish any of the circumstances independently beyond reasonable doubt much less a chain of circumstances, exclusively pointing towards the accused as the only persons who committed the crime.
105. It will be injustice to the accused, if I do not discuss the circumstances in their favour in proof of their innocence which have been proved on record by the prosecution witnesses themselves and it is not that the accused accused have produced the same in their defence.
106. The presence of accused just after the death of the deceased and not escaping from the spot and calling PW9, a doctor, to examine the deceased and thereafter immediately removing her to said Nursing Home is a strong circumstance in their favour. Reference here may be given of a judgment of Hon'ble Supreme Court in case titled State of Rajasthan Vs. Prithvi Raj reported as SC No.187/10 Page 115/119 1995 CAR 335 wherein a wife made dying declaration having been set to fire after pouring kerosene oil by accused, were the facts and it was held that the immediate conduct of the accused and his parents in rushing the deceased to the hospital by arranging a jeep is quite consistent with their being innocent.
107. Further, last rites were performed admittedly by accused Anil Kumar and relatives of deceased from parental side even accompanied him to Haridwar for immersion of last remains of the deceased in the Ganges.
108. The photographs Ex.PW4/D1 to D9 admitted by the mother of the deceased as that of the deceased with her family and husband, depicted healthy family life of the deceased. All this go to establish that accused were not with any guilty mind before or after the detah of the deceased.
109. Coming to the aspect as to whether any other lesser offence has been committed by the accused because of some judgments of the Hon'ble Supreme Court suggesting and directing that in the case u/s 304B, Section 302 IPC be added and in some other judgments accused have been punished u/s 306 or 304B or 498A IPC, in such cases of family disputes resulting into death of the deceased. SC No.187/10 Page 116/119
110. Admittedly the incident is dated 03.10.2007 and FIR was registered on 25.10.2007, the reason being that all persons including the complainant side and the police were waiting for PMR of the deceased. But the question is that FIR is to be registered if a cognizable offence is disclosed by any written or oral material as per command of Section 154 Cr.PC. What IO PW23 has said in his cross examination that even after receipt of complaint Ex.PW4/A on 17.10.2007, he did not register any case as he was waiting for PMR. He further admitted that even after recording statements Ex.PW23/B and Ex.PW23/C of accused Rajender Goel and Anil Kumar on 19.10.2007 respectively to the effect that in fact deceased had committed suicide and they falsely represented that she died while spreading wet clothes for drying at the roof after feeling giddy, earlier, he did not register a case u/s 306 IPC. He admitted that he did not register any case since the time inquiry was marked to him on 15.10.2007 till 25.10.2007 when the PMR was received despite complaint Ex.PW4/A, statements recorded Ex.PW23/B and Ex.PW23/C.
111. Even otherwise, there is no evidence legally admissible on record to show that the accused instigated, goaded, induced or abetted the deceased to commit the suicide or she was so harassed to commit the suicide so as to attract Section 306 IPC. SC No.187/10 Page 117/119
112. Qua the offence u/s 304B and 498A IPC, I had already discussed about the demands of the accused of the house of PW7 and of money spent in the construction of their own house from PW11, while dealing with motive as the circumstantial evidence. There is no evidence on record that "soon before her death" she was subjected to any cruelty, even if taking her death as unnatural for the sake of arguments, so as to attract Section 304B IPC which further cannot be done as admittedly the period of marriage is more than seven years. For the same reasons, Section 498A IPC is also not attracted and further, in view of the admission of PW4 and said other witnesses related to the deceased in Guardianship case No.185/08 that accused was keeping the deceased and her children very happily and was taking care of them. No kind of cruelty on account of demand by accused was ever reported to anyone or to the police. Thus, there is no possibility of the accused to be convicted u/s 498A IPC also.
113. Reminding myself of the repeated warning given by the Hon'ble Supreme Court in series of judgments, that a suspicion howsoever strong, cannot take the place of proof and also a famous local saying that there was no medicine of suspicion in the mind of a person even with the most expert and famous Hakim namely Lukman, I have no option but to acquit the accused of the charges SC No.187/10 Page 118/119 u/s 302/201/34 IPC. Their PBs and SBs are hereby discharged. The file be consigned to the Record Room.
(Announced in the open court on 18.04.2012) (RAKESH TEWARI) ASJ06(OUTER) ROHINI COURTS, DELHI SC No.187/10 Page 119/119