Delhi District Court
(Judgment) State vs Vijay @ Shalu on 23 April, 2019
(Judgment) State Vs Vijay @ Shalu
FIR no.190/17
U/s 302 IPC
PS: Aman Vihar
IN THE COURT OF SHRI PANKAJ GUPTA: ADDL. SESSIONS JUDGE (FTC)
(NORTH-WEST): ROHINI COURTS: DELHI
Session Case No.345/17
CNR No. DLNW01-005676-2017
State
Vs.
Vijay @ Shalu
Son of Late Sh. Suraj Bhan,
R/o H.No.A-191, Karan Vihar, Part-5, Kirari,
Suleman Nagar, Delhi.
FIR No. : FIR No.190/17
Police Station : Aman Vihar
Under Section : 302 IPC
Date of committal to Sessions Court : 01.06.2017
Date on which judgment reserved : 23.04.2019
Date on which judgment pronounced : 23.04.2019
JUDGMENT
1. This is a case under section 302 Indian Penal Code, 1860 (IPC).
CASE OF THE PROSECUTION
2. On 18.02.2017, in the late evening hours, when Raj Dulari (mother of the accused) along with her granddaughter Ishika had gone to attend a sangeet ceremony in the neigh- bourhood, the accused committed the murder of his wife Pooja (the deceased) with the axe. Thereafter, the accused absconded. On 19.02.2017, the accused was arrested and that time, Page no.1/ 32 (Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar he was wearing the blood stained clothes. The accused made the disclosure statement and in pursuance thereto, he got recovered the weapon of offence i.e. the axe.
CHARGES
3. Charge under section 302 IPC was settled against the accused. The accused pleaded not guilty and claimed trial.
PUBLIC WITNESSES
4. PW-13 Raj Dulari (mother of the accused) deposed that on 18.02.2017, at about 9.00-9.30 pm, she had gone to attend marriage function near her house. After half an hour, when she came back to her house, she opened the door and found her daughter in law Pooja (the deceased) was lying in gory condition on folding bed. On seeing that, she started crying. On hearing her hue and cry, her neighbours gathered there. She, with the help of her neighbours and the accused took the deceased to SGM Hospital. The police met her in her house and took her to PS Aman Vihar and made inquiries from her. She identified the dead body of the deceased vide identification statement Ex.PW13/A. She also signed the identification statement of Vinod Kumar as attesting witness i.e. Ex.PW13/B. After postmortem, dead body of the deceased was handed over to them vide handing over memo Ex.PW13/C. She has turned hostile on the point that the accused made the extra judicial confession to her that he had committed the murder of his wife Pooja.
5. The prosecution examined PW7 Vinod to prove that the accused firstly made the ex- tra judicial confession to him that he had committed the murder of his wife Pooja. How- ever, before court, PW7 has turned hostile.
Page no.2/ 32(Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar POLICE WITNESSES
6. PW-2 Ct. Naresh deposed that on 18.02.2017, at 11.20 pm, Ct. Krishan Rathi from SGM Hospital informed that Pooja was admitted in SGM hospital by Dulari and was declared as brought dead. The said information was reduced in Daily Diary register vide DD no. 80-B Ex.PW2/A.
7. PW-14 ASI Bhagwan Sahai deposed that in the intervening night of 18/19.02.2017, on receipt of DD no. 80-B, he along with HC Biju P.K. reached at SGM hospital and collected the MLC of the deceased. He saw the dead body of the deceased and noticed several injury marks on her face and other parts of body. He gave the information to the SHO who came to the hospital. He sent the dead body of the deceased to mortuary through HC Biju P.K. Thereafter, he along with the SHO and HC Biju P.K. went to the spot i.e. A- 191, Karan Vihar, Phase-5, Kirari, Delhi. HC Surjeet (PW8) also came from the police station. Crime team was also called at the spot.
8. PW-14 also deposed that he prepared rukka Ex.PW14/A and handed over the rukka to PW8 for registration of FIR who got it registered. He returned to the spot and handed over copy of FIR and original rukka to Inspector Surya Prakash (PW16) to whom further investigation was entrusted.
9. PW-3 HC Satya Pal proved the FIR no. 190/17 Ex.PW3/A, endorsement on rukka Ex.PW3/B and certificate u/s 65-B Indian Evidence Act Ex.PW3/C.
10. PW-4 HC Virender deposed that on 19.02.2017, at about 2:30am, he along with SI Satyadev (PW11), ASI Rajesh and HC Rajkumar reached at spot where PW14 met them. On the instruction of PW14 and SI Satyadev, he took eight photographs of the spot from different angles. He proved the photographs Ex.PW-4/A1 to Ex.PW-4/A8 and negative of the said photographs Ex.PW-4/B (colly).
Page no.3/ 32(Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar
11. PW-11 SI Satya Dev also deposed on the lines as deposed by PW4 and proved the crime team report Ex.PW11/A.
12. PW-1 Ct. Naveen proved the scaled site plan Ex.PW1/A.
13. PW-6 Kapoor Singh deposed that on 20.02.2017, he conducted the photography and videography of dead body of the deceased. Later on, he handed over the CD of the videography of postmortem proceedings and 19 photographs to IO which were seized vide seizure memo Ex.PW-6/A. He proved the photographs Ex.PW-6/B (colly) and CD Ex.PW- 6/C.
14. PW-8 HC Surjeet deposed that in the intervening night of 18/19.02.2017, PW14 handed over him the tehrir for registration of the case. He got registered the FIR and came back to the spot and handed over copy of FIR to PW16 to whom the further investigation was marked. PW16 lifted the blood stained cotton mattress along with its cover having blood stains; the blood stained cushion lying at the spot; the blood stained cemented piece from the room; the blood stains lying near the cot with the help of doctor bandage and seized all these exhibits vide seizure memo Ex. PW-8/A.
15. PW-8 also deposed that on 19.02.2017 at about 5 pm, secret informer informed that the accused was standing near Milan Banquet Hall, Aman Vihar. He along with PW16 reached there and arrested him vide arrest memo Ex. PW-8/B. His personal search was conducted vide memo Ex. PW-8/C. The accused led them to the place of occurrence and PW16 prepared pointing out memo Ex. PW-8/D. PW16 recorded the disclosure statement of the accused Ex.PW8/E. In pursuance of the disclosure statement, the accused got recovered one axe from one old house (Khandhar) situated in front of his house. PW16 seized the axe vide seizure memo Ex.PW8/F. He also deposed about depositing of the exhibits with FSL vide RC No. 101/21/17 and RC No. 108/21/17 on 13.04.2017 and 18.04.2017. He identified the Axe Ex.P-1 and three clothes i.e. one red shirt, one T-shirt of white colour and one lower of "PUMA" Ex.P-2. (collectively) and stated that these were clothes the accused which were seized vide seizure memo Ex.PW8/G. Page no.4/ 32 (Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar
16. PW-12 HC Lalit deposed that on 11.04.2017, on the instructions of PW16, he produced the accused before the concerned doctor for taking his blood sample. Concerned doctor prepared MLC no. 4847/17 of the accused and took his blood sample which was seized vide seizure memo Ex.PW12/A.
17. PW-16 Inspector Surya Prakash (Investigating Officer) deposed that on 18.02.2017, on receipt of information about the DD no. 80-B, he reached at SGM Hospital and observed cut marks on the face and neck of the dead body of the deceased, which were appearing to be caused by an axe. He got the dead body shifted to mortuary SGM Hospital. No eye witness was found present at the hospital. From the hospital, he along with PW14 and other staff reached at A-191, Karan Vihar, Part V, Kirari, Delhi. PW8 had also reached there on being called by him. Two cots were lying there in the said room. The first cot which was lying adjacent to the entry gate had blood stains on its bedding as well as on the cushion. He called the mobile crime team and got the spot inspected and photographed. No eye witness was found at the spot. He also deposed about registration of FIR and seizure of the exhibits as deposed by PW-14. He prepared the site plan Ex. PW-16/A.
18. PW-16 deposed that he interrogated PW13. On interrogation, PW13 told him that she along with her granddaughter had gone to attend one program in neighborhood and PW7 had informed her that the accused had told him in the street that he had eliminated his wife. PW13 further told him that after receiving the said information, she immediately rushed to her house and found the deceased lying on the cot in injured condition bleeding profusely, hence, she had taken her to SGM Hospital. PW13 was also present there being part of the crowd outside the said house. He examined him and recorded his statement. PW7 told him that the accused was planning to escape from Delhi. He also deposed the facts as to arrest of the accused, seizure of his clothes and recovery of the axe at his instance as deposed by PW8. He prepared the site plan of the place of recovery of axe Ex. PW-16/B.
19. PW-16 deposed that on 20.02.2017, he got the postmortem of the body of the Page no.5/ 32 (Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar deceased conducted. He proved his request letter for postmortem Ex. PW-16/C and Form no. 25.35 (1) (B) Ex. PW-16/D. He got identified the dead body of the deceased through PW7 and PW13 Ex. PW-13/A and Ex. PW-13/B. On his call, photographer Kapoor Singh took photographs and also done videography of the post mortem. After postmortem, the doctor handed over him five sealed pullandas which he seized vide seizure memo Ex. PW- 16/E. After the post mortem the dead body was handed over to PW13 vide memo Ex. PW- 13/C.
20. PW-16 deposed that on 27.02.2017, he along with draftsman PW1 visited the spot for preparation of the scaled site plan. After 10-12 days, he handed over him the scaled site plan. On 07.04.2017, he collected the pullanda containing the axe from MHCM and moved a request letter to Dr. Manoj Dhingra for providing subsequent opinion regarding weapon of offence. He proved his request letter Ex. PW-16/G. On 10.04.2017, he moved an application before Ld. M.M. for taking blood sample of the accused and proved his application Ex. PW-1/F. Pursuant to the direction of the Court, blood sample of the accused was collected at BSA Hospital. On 13.04.2017 and 18.04.2017, he got deposited the exhibits of the present case at FSL. Kapoor Singh handed over him total 19 photographs and one CD of the postmortem of the deceased and same were seized by him vide seizure memo Ex. PW-6/A. HC Virender handed over 8 photographs of the spot and same were seized by him vide seizure memo Ex. PW-16/H. 10 photographs of the body of the deceased and one photo of weapon of offence were seized vide seizure memo Ex. PW-16/J.
21. PW-16 deposed that on 05.05.2017, he recorded statement of PW13 and prepared the charge-sheet. He identified the axe Ex. P-1, one shirt of red colour, one T-shirt of white colour and blue colour lower make Puma Ex. P-2 (colly), one mattress, one cushion/pillow, transparent plastic container, Ex. P-3, cushion/pillow Ex. P-4, blood stained floor material Ex. P-5 and blood on gauze Ex. P-6.
22. PW-5 ASI Nem Singh proved relevant entries in register no. 19 Ex.PW5/A, Ex.PW5/B and Ex.PW5/C (OSR). He also proved the entries in the register no. 21 Page no.6/ 32 (Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar Ex.PW5/D, receipt Ex.PW5/E, RC No. 108/21/17 Ex.PW5/F and receipt Ex.PW5/G (OSR).
MEDICAL EVIDENCE
23. PW-9 Dr. Rohit Kumar deposed that on 18.02.2017, at 11.19 pm, the deceased was brought in casualty in unconscious state by PW13. There were multiple lacerated wounds on the face and neck and other part of body. Tenaceous froth was coming out through her nasal orifice. ECG was showing flat line. Hence, the patient was declared brought dead. Dead body was shifted to mortuary for postmortem. He proved MLC Ex.PW9/A.
24. PW-15 Dr. Manoj Dhingra proved the postmortem report of the deceased Ex.PW15/A and deposed that the cause of death was hemorrhagic shock and asphyxia as a result of manual strangulation. All injuries were ante-mortem in nature.
25. PW-15 also deposed that he examined the weapon of offence i.e. the axe and opined that injuries mentioned in the PM report were possible with the axe examined or similar such weapon. He proved his opinion Ex.PW15/B and diagram of the said axe Ex.PW15/C.
26. PW-10 Dr. Ashok Kumar deposed that on 11.04.2017, blood sample of the accused was taken and gauze piece and was handed over to IO. He prepared MLC Ex.PW10/A. FORENSIC EVIDENCE
27. Perusal of FSL report dated 13.02.2018 Ex.PX-1 reveals that the axe Ex. 9 (Ex. P1) was sent for forensic examination and was examined at FSL. As per the biological examination, blood was detected on the said axe but DNA profile could not be generated Page no.7/ 32 (Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar from the said axe due to degradation or inhibition.
STATEMENT OF ACCUSED
28. After completing the prosecution evidence, statement of the accused was recorded under section 313 Code of Criminal Procedure, 1973 (CrPC) in which all the incriminating evidence/material was put to him which he has denied. The accused has stated that he is in- nocent and has been falsely implicated in this case.
DEFENCE EVIDENCE
29. The accused have not led evidence despite given opportunity.
30. I have heard the APP for the State and counsel for the accused and have perused the material available on record.
31. In nutshell, case of the prosecution is that on 18.02.2017, in the late evening hours, when PW-13 along with her granddaughter Ishika had gone to attend a sangeet ceremony in the neighbourhood, the accused committed the murder of his wife Pooja (the deceased) with the axe.
32. The present case of the prosecution is based on the circumstantial evidence.
DATE, TIME AND PLACE OF INCIDENT
33. According to the prosecution, on 18.02.2017, in the late evening hours, the murder of the deceased was committed in the house no. A-191, Karan Vihar, Part-V, Kirari, Delhi.
Page no.8/ 32(Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar Though PW-13 has turned hostile as to the role of the accused in the subject incident, however, she deposed that on 18.02.2017 at about 9:00-9:30 pm, she along with her granddaughter Ishika had gone to attend a sangeet ceremony near her house and after half an hour, when she came back to her house, she saw that the deceased was lying in gory condition on the folding bed. The testimony of PW-13 to this effect remained unrebutted. Hence, it can be held that murder of the deceased was committed between 9:00 pm and 10:00 pm. In the site plans Ex.PW-16/A and Ex.PW-1/A, point 'A' depicts where blood was lying on the mattress which was on the cot. It is not the case of the accused that the scene of crime shown by the prosecution is not the correct one. As such, date, time and place of incident stands proved.
MEDICAL EVIDENCE
34. According to the prosecution, PW-13 with the help of neighbours removed the deceased to SGM Hospital where she was examined and her MLC was prepared mentioning that she was brought dead. Subsequently, the dead body of the deceased was shifted to mortuary SGM Hospital where postmortem of the body of the deceased was conducted. To prove the said facts, the prosecution examined PW-9 and PW-15.
35. PW-9 proved MLC of the deceased Ex.PW-9/A and deposed that on examination, the deceased was declared brought dead. The said testimony of PW-9 remained unrebutted.
36. PW-15 proved the postmortem report of the deceased Ex.PW-15A perusal of which reveals that the following external injuries were found on the body of the deceased:
(i) Cut Throat Wound 06 x 3cm, deep upto vertebral column bone, lying over front of neck with complete transaction of trachea, oesophagus & neck muscles at lower border of thyroid cartilage along with underlying blood vessels.
(ii) Incised wound over the left ear lobe, 3x1.5cm.
(iii) Incised wound left side of face, 5x1cm, 3cm from nose and 4cm from left Page no.9/ 32 (Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar ear.
(iv) Incised wound, 3x1cm, on the left side of face, 1cm from nose and 9cm from left ear.
37. Perusal of the postmortem report Ex.PW-15/A also reveals that the cause of death of the deceased was due to hemorrhagic shock and asphyxia as a result of manual strangulation. The said testimony of PW-15 remained unrebutted.
38. PW-15 also deposed that he examined the weapon of offence i.e. the axe Ex.P.1 and on examination, he opined that the injuries mentioned in the postmortem report were possible with the axe examined or similar one. He proved his opinion to this effect Ex.PW- 15/C. In his cross examination, counsel for the accused has not given any suggestion that his subsequent opinion as to weapon of offence is not correct.
39. In view of the foregoing discussions, it can be held that the connection between the injuries sustained by the deceased and the weapon of offence i.e. the axe Ex.P1 stands proved. It is also proved that the deceased was manually strangulated also.
FORENSIC EVIDENCE
40. It is evident from FSL report dated 13.02.2018 Ex.PX-1 that on the biological examination, blood was detected on the axe Ex. 9 (Ex. P1) but DNA profile could not be generated from the said axe due to degradation or inhibition. Hence, it can be held that on the said axe, blood was detected but due to degradation, DNA could not be generated.
41. Role of the scientific evidence i.e. DNA analysis is to further corroborate the case of the prosecution. As held above, the nexus between the axe and the injuries sustained by the deceased stands proved. It is also proved that the blood was detected on the said axe. As held in later part of the judgment, the recovery of the said axe at the instance of the accused stands proved. Therefore, non generation of DNA profile from the said axe is not fatal to the case of prosecution.
Page no.10/ 32(Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar
42. In view of the foregoing discussions, the nexus between the nature of injuries sustained by the deceased, their cause, the weapon of offence i.e. the axe and cause of the death of the deceased stands proved.
EXTRA JUDICIAL CONFESSION
43. According to the prosecution, the accused made the extra judicial confession to PW-7 and PW-13 whereby he confessed that he had committed the murder of his wife i.e. the deceased. To prove the same, the prosecution has examined PW-7 and PW-13. However, PW-7 and PW-13 have turned hostile in this testimony before the court. As such, the prosecution failed to prove that the accused has made the extra judicial confession to PW-7 and PW-13 whereby he confessed that he had committed the murder of his wife.
ABSCONDENCE OF THE ACCUSED
44. Counsel for the accused pleaded that once the accused came to know about the condition of the deceased, he came to his house and he along with his mother (PW13) removed the deceased to the hospital.
45. PW-13 in his testimony deposed that once she saw the deceased lying in gory condition on the folding bed, she started crying and on hearing her hue & cry, the neighbours gathered there. PW-13 has not stated that on hearing hue & cry, the accused had also reached at the house. Hence, it can be inferred that once she reached at her house, the accused was not there and on hearing her hue & cries, the neighbours had gathered but still the accused was not there.
46. PW-13 in her testimony deposed that she with the help of her neighbour and the accused took the deceased to SGM Hospital. However, the statement of PW-13 u/s 161 CrPC is silent to this effect and the APP for the State confronted PW-13 to that effect. As such, PW-13 made a material improvement in her statement that once she removed the deceased to the hospital, the accused had accompanied her. The said conduct of PW13 to Page no.11/ 32 (Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar this effect is very much expected as she is the mother of the accused.
47. To this effect, the accused in reply to question no.17 of his statement u/s 313 CrPC stated that that time, he was standing at some distance from the place where the function was going on, when one of his friends informed him about the condition of the deceased. Accordingly, he along with PW-13 and his sister took the deceased to the hospital in an auto rickshaw. However, the accused has neither disclosed the name of the said friend nor has examined him in his defence. He also stated that he removed the deceased to the hospital along with PW-13 and the sister. However, the testimony of PW-13 is completely silent qua the presence of sister. Further, the accused has not disclosed the name of sister who accompanied him to the hospital nor examined her in his defence.
48. Now the question arises as to whether the accused was present in the hospital when the deceased was brought there.
49. DD no. 80B Ex. PW2/A reveals that PW13 had brought the deceased to the SGM hospital. PW-9 proved the MLC of the deceased Ex.PW-9/A perusal of which reveals that PW-13 had accompanied the deceased when she was brought to the hospital. PW-9 in his testimony also deposed to that effect. The accused in reply to question no.1 of his statement u/s 313 CrPC stated that name of his mother was mentioned in the MLC.
50. In the normal circumstances, the accused, being the husband of the deceased, would have come forward and disclosed his relationship with the deceased and would have proposed his name to be mentioned in the MLC as the near relative who had brought the deceased to the hospital or the doctor would have preferred to mention the name of the accused i.e. the husband of the deceased rather than to mention the name of an aged woman. It is not the case of the accused that he had requested the doctor to mention his name but he refused to do so. In cross examination of PW-9, he stated that he could not say about the other relatives apart from PW-13 who were present there. However, no suggestion was given to him that the accused being husband of the deceased was present in the hospital that time or his presence was deliberately not mentioned in the MLC. Even no Page no.12/ 32 (Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar attempt was made by counsel for the accused to get the accused identified by PW9.
51. PW-13 in her testimony deposed that after some time, she was asked by the family member to go back to the house. However, her said statement is completely silent that the accused had asked her to go back to the house. She has also not stated that those undisclosed family members also asked the accused to go back to the house. It is also not the case of PW13 that once she left the said hospital, the accused remained in the said hospital.
52. It is evident from the testimony of PW-14 and PW-16 that once they reached at the hospital, the accused was not presence there. It is also evident from the testimony of PW-4, PW-8, PW-14 and PW-16, once they reached at the house i.e. the scene of crime, the accused was not there. In cross examination of none of the said witnesses, any suggestion was given that the accused was present at the hospital or in the house.
53. In view of the foregoing discussions, it can be held that from the time when PW-13 reached at the house till she left the hospital, the accused was neither present at the house nor at the hospital. It is also evident from the testimony of PW-4, PW-8, PW-14 and PW- 16 that once they reached at the hospital and the scene of crime, the accused was not present there. It is own case of the accused that he got the knowledge about the condition of the deceased before taking her to the hospital that night. It is highly unnatural that despite that the presence of the accused was not noted in the house and the hospital as stated by the accused. As discussed in later part of the judgment, the accused was arrested on 19.02.2017 at 5:30 pm vide arrest memo Ex. 8/B. Therefore, it can be held that after the incident till his arrest, the accused remained absconded in such a crucial period from his house and had not accompanied his mother and the deceased. The accused has failed to give any justification for his absence during the said period.
ARREST
54. Case of the prosecution is that on 19.02.2017 at 5:30 pm, on secret information, the Page no.13/ 32 (Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar accused was arrested near Milan Banquet Hall, Karan Vihar, Part-V, Delhi vide arrest memo Ex.PW-8/B. To prove the same, the prosecution examined PW-8 and PW-16.
55. PW-8 in his testimony specifically deposed that on 19.02.2017 at about 5:00 pm, a secret information was received that the accused was standing near Milan Banquet Hall, Aman Vihar. Consequently, he along with PW-16 visited the said spot and arrested the accused vide arrest memo Ex.PW-8/B. In his cross examination, no suggestion was given by counsel for the accused that the accused was not arrested in the manner as deposed by him. No suggestion was given to him that the arrest memo of accused Ex.PW-8/B is a forged and fabricated document.
56. PW-16 also deposed about the arrest of the accused and corroborated the testimony of PW-8 that the accused was arrested vide arrest memo Ex.PW-8/B. In cross examination of PW-16, one suggestion was given which he denied that the accused was not apprehended and arrested in the manner as deposed by him. However, no such suggestion was given to PW-8. Further, the accused has not disclosed as to how and when he was arrested if he was not arrested in the manner as deposed by PW-8 and PW-16. It is no where the case of the accused that his arrest was illegal in nature.
57. Further, the accused in reply to the question no.13 of his statement u/s 313 CrPC stated that he was arrested on 19.02.2017 in the evening hours. In reply to the question no.21 of his statement, he admitted his arrest by the police vide arrest memo Ex.PW-8/B. On the contrary, in reply to the question no.32, he stated that he was kept in wrongful confinement. Firstly, no such suggestion was given to PW-8 and PW-16. Secondly, the said suggestion is contrary to his stand that on 19.02.2017, he was arrested in the evening hours vide arrest memo Ex.PW-8/B. Thirdly, the accused has not explained as to how his confinement was illegal in nature.
58. Counsel for the accused pleaded that the place from where the accused was arrested as stated by the prosecution, was a public place. However, no public person was made a witness to the arrest proceedings. Therefore, the arrest of the accused is doubtful in nature.
Page no.14/ 32(Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar
59. As held above, from the testimony of PW8 and PW16 and statement of the accused, it stands proved that on 19.02.2017 in the evening hours, the accused was arrested vide arrest memo Ex.PW8/B. Therefore, merely because no public person was a witness to arrest proceedings, is not fatal to the case of prosecution. More so, PW-16 has explained that he requested 4-5 public persons to join the proceedings, however, they left after given valid reason. Hence, the said plea is of no consequence.
60. In view of the foregoing discussions, it can be held that accused was arrested vide arrest memo Ex.PW-8/B following the due process of law.
RECOVERY OF THE AXE
61. Case of the prosecution is that on 19.02.2017, after arrest, the accused made the disclosure statement Ex.PW-8/E and thereafter, he led PW-8 and PW-16 to the place where he had concealed the axe i.e. the weapon of offence and got recovered the axe Ex.P1 from one old house which was in dilapidated condition situated in front of his house. The axe Ex.P1 was seized vide seizure memo Ex.PW-8/F.
62. PW-8 deposed about the disclosure statement made by the accused and recovery of the axe effected in pursuance to the said disclosure statement and its seizure vide seizure memo Ex.PW-8/F. PW-16 also deposed to that effect. He also proved the site plan of place of recovery of the axe Ex.PW-16/B. They identified the axe Ex.P1. PW-8 and PW16 in their cross examination denied a suggestion that the accused had not made any disclosure statement.
63. In reply to question no.22 of the statement u/s 313 CrPC, the accused stated that after arrest, he gave the statement to the police. According to PW8 and PW16, the accused made the disclosure statement. Counsel for the accused has failed to explain which was that statement if not his disclosure statement. Hence, it can be held that the accused made the disclosure statement Ex.PW-8/E. As such, the plea of counsel for the accused that the Page no.15/ 32 (Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar accused had not made the disclosure statement or his signatures were obtained on the blank papers is not sustainable in the eyes of law.
64. In view of the foregoing discussions, it can be held that the accused was arrested at the earliest opportunity. Thereafter, the accused made the disclosure statement.
65. APP for the State pleaded that in pursuance thereto, the accused got recovered the axe from a place which was opposite to his house and was in dilapidated condition at earliest opportunity.
66. On the contrary, counsel for the accused pleaded that PW-16 in his cross examination admitted that the plot from where the axe was recovered was open and accessible to all. Further, no public person was joined to the recovery proceedings. Hence, the recovery of the axe is not reliable in nature.
67. In the judgment titled as "Mukesh v. State (NCT of Delhi)", reported in (2017) 6 SCC 1, the Supreme Court held:
"137. On a studied scrutiny of the arrest memo, statements recorded under Section 27 of the Evidence Act, 1872 and the disclosure made in pursuance thereof, we find that the recoveries of articles belonging to the informant and the victim from the cus tody of the accused persons cannot be discarded. The recovery is founded on the state ments of disclosure. The items that have been seized and the places from where they have been seized, as is limpid, are within the special knowledge of the accused persons. No explanation has come on record from the accused persons explaining as to how they had got into possession of the said articles. What is argued before us is that the said re coveries have really not been made from the accused persons but have been planted by the investigating agency with them. On a reading of the evidence of the witnesses who constituted the investigating team, we do not notice anything in this regard. The sub mission, if we allow ourselves to say so, is wholly untenable and a futile attempt to avoid the incriminating circumstance that is against the accused persons.Page no.16/ 32
(Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar
444................................Section 27 is based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information is true and is a relevant fact and accordingly it can be safely al lowed to be given in evidence.
445. Section 27 has prescribed two limitations for determining how much of the information received from the accused can be proved against him: (i) the information must be such as the accused has caused discovery of the fact i.e. the fact must be the consequence, and the information the cause of its discovery; (ii) the information must "relate distinctly" to the fact discovered. Both the conditions must be satisfied. Various requirements of Section 27 of the Evidence Act are succinctly summed up in Anter Singh v. State of Rajasthan [Anter Singh v. State of Rajasthan, (2004) 10 SCC 657 :
2005 SCC (Cri) 597] : (SCC p. 665, para 16) "16. The various requirements of the section can be summed up as follows:
(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered.
(3) The discovery must have been in consequence of some information re ceived from the accused and not by the accused's own act. (4) The person giving the information must be accused of any offence. (5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."
447. Even though, the arrest and recovery under Section 27 of the Evidence Act is often sought to be misused, the courts cannot be expected to completely ignore how crucial are the recoveries made under Section 27 in an investigation. The legislature while incorporating Section 27, as an exception to Sections 24, 25 and 26 of the Evi dence Act, was convinced of the quintessential purpose Section 27 would serve in an in vestigation process. The recovery made under Section 27 of the Evidence Act not only Page no.17/ 32 (Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar acts as the foundation stone for proceeding with an investigation, but also completes the chain of circumstances. Once the recovery is proved by the prosecution, burden of proof on the defence to rebut the same is very strict, which cannot be discharged merely by pointing at procedural irregularities in making the recoveries, especially when the recovery is corroborated by direct as well as circumstantial evidence, espe cially when the investigating officer assures that failure in examining independent wit ness while making the recoveries was not deliberate or mala fide, rather it was on ac count of exceptional circumstances attending the investigation process.
448. While the prosecution has been able to prove the recoveries made at the be hest of the accused, the defence counsel repeatedly argued in favour of discarding the recoveries made, on the ground that no independent witnesses were examined while ef fecting such recoveries and preparing seizure memos.
449. The above contention of the defence counsel urges one to look into the specifics of Section 27 of the Evidence Act. As a matter of fact, need of examining inde pendent witnesses, while making recoveries pursuant to the disclosure statement of the accused is a rule of caution evolved by the Judiciary, which aims at protecting the right of the accused by ensuring transparency and credibility in the investigation of a crimi nal case. In the present case, PW 80 SI Pratibha Sharma has deposed in her crossex amination that no independent person had agreed to become a witness and in the light of such a statement, there is no reason for the courts to doubt the version of the police and the recoveries made.
450. When recovery is made pursuant to the statement of the accused, seizure memo prepared by the investigating officer need not mandatorily be attested by inde pendent witnesses. In State (Govt. of NCT of Delhi) v. Sunil [State (Govt. of NCT of Delhi) v. Sunil, (2001) 1 SCC 652 : 2001 SCC (Cri) 248] , it was held that nonattes tation of seizure memo by independent witnesses cannot be a ground to disbelieve re covery of articles' list consequent upon the statement of the accused. It was further held that there was no requirement, either under Section 27 of the Evidence Act or under Section 161 CrPC to obtain signature of independent witnesses. If the version of the po lice is not shown to be unreliable, there is no reason to doubt the version of the police regarding arrest and contents of the seizure memos.
Page no.18/ 32(Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar
452. In the light of above discussion, it is held that recoveries made pursuant to disclosure statement of the accused are duly proved by the prosecution and there is no substantial reason to discard the same. Recovery of articles of the PW 1 and also that of victim at the instance of the accused is a strong incriminating evidence against the accused, especially when no plausible explanation is forthcoming from the accused. Further, as discussed infra, the scientific examination of the articles recovered com pletely place them in line with the chain of events described by the prosecution."
68. In the judgment titled as "SHEETAL vs. STATE", reported in 2018 SCC Online Del 10134, the Delhi High Court held:
41. It is further contended on behalf of the accused that no independent witness was joined in the investigation at the time of recovery of articles at the instance of the accused. Learned APP for the State has countered this submission. He submitted that noninvolvement/joining of independent witness is not fatal to the case of the prosecution. Reliance has been placed on State Govt of NCT of Delhi vs Sunil and Another, [2000 (7) SCALE 692]. It is apparent from the record that no independent witness was joined during the recovery of articles at the instance of the accused Inderjeet, but the fact cannot be ignored that the general public usually remains reluctant to join the police investigation for many reasons. The people consider it as undue harassment; wastage of time; harassing, as it involves being called to the police station and Courts repeatedly; and; the fear of earning the wrath of someone who may be involved in a serious crime. Thus, in our view, non-joining of public witnesses in the investigation does not affect the case of prosecution and the case of prosecution cannot be discarded on that ground alone.
42. Learned counsel for the appellant Inderjeet Arora has submitted that the recovery of the iron rod is from an open public place, and for that reason, the same cannot be relied upon. We do not find any force in this submission of learned Page no.19/ 32 (Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar counsel for the reason that the body of the deceased itself was lying near the water tank close to Thokar No.13 in Village Jhangola. Thus, it was in a far flung surrounding that the body of the deceased was found. The seizure memo in respect of the iron rod Ex. PW-9/M shows that the accused Inderjeet Arora led the police party to the place where the iron rod was thrown by him- which was about 10-12 steps towards the east inside a wheat field. Thus, the iron rod was not recovered from an open barren land, such that it would be visible to any person who may visit the place. The iron rod was recovered from the wheat field which shows that the same was lying hidden in the standing crops. In this regard, we may refer to the judgment of the Supreme Court in State of Himachal Pradesh v. Jeet Singh, (1999) 4 SCC 370, wherein it was held:
"26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried in the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others.
27. It is now well settled that the discovery of fact referred to in Section 27 of the Evidence Act is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused Page no.20/ 32 (Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar as to it (Pulukuri Kottaya [Pulukuri Kottaya v. Emperor, AIR 1947 PC 67 : 74 IA 65] )...........
43. The fact that the accused led the police party to an inconspicuous place and got recovered the weapon of offence i.e. iron rod - which was seized vide memo Ex.PW9/M, clearly establishes the knowledge of the accused Inderjeet Arora with regard to the place where the said iron rod was located, and his knowledge that the said iron rod was the weapon of offence. The fact that the said iron rod was the weapon of offence stands established by the doctors opinion Ex.PW15/2 and the FSL Report Ex.PW23/1 to 23/3. The said recovery is clearly admissible under Section 27 of the Evidence Act. Thus, the circumstance of the knowledge of the accused that the recovered rod was used to strike the deceased, and his knowledge about where the said iron rod was left/ thrown after the commission of the offence stand duly proved. He has, however, not offered any explanation for his knowledge of these facts.
69. It is evident from the testimony of PW-8 and PW-16 that the accused got recovered the axe Ex. P-1 from a dilapidated house as shown in site plan Ex.PW-16/B. In cross examination of PW8 and PW16, no suggestion was given by counsel for the accused that the site plan Ex.PW-16/B showing the place of recovery of the axe is a forged and fabricated document. PW-16 in his cross examination admitted that the plot from where the axe was recovered was open and accessible to all. Vide the said suggestion given by counsel for the accused, the accused has admitted that the axe was recovered from that place. In cross examination, PW-16 denied a suggestion that the axe was planted upon the accused. However, no such suggestion was given by counsel for the accused to PW-8 in his cross examination.
70. It is nowhere the case of the accused that PW-16 knew before hand that the axe Ex.P1 was the weapon of offence in the present case and the place where it was concealed.
Page no.21/ 32(Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar Hence, it can be held that before making the disclosure statement by the accused, PW-16 was not aware about the weapon of offence and the place where it was concealed. Hence, it can be held that the axe was recovered from a place which was within the specific and exclusive knowledge of the accused. Therefore, there was no occasion for PW-16 to plant that axe upon the accused. Further, the accused has not assigned any reason as to why PW- 16 would have done so. Even, the accused in reply to the question no.30 of his statement u/s 313 CrPC stated that he did not know why the prosecution witnesses have deposed against him.
71. In the present case, the seizure memo in respect of the axe Ex. PW-8/F shows that the accused led the police party to the place where the axe was thrown by him. The site place of place of recovery of the axe Ex. PW16/B, nowhere reveals that it was a thoroughfare. As such, the axe was not recovered from an open barren land, such that it would be visible to any person who may visit the place. The discovery of fact referred to in section 27 of the Evidence Act is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused as to it. The fact that the accused led the police party to an inconspicuous place and got recovered the weapon of offence i.e. axe clearly establishes the knowledge of the accused with regard to the place where the said knife was located, and his knowledge that the said axe was the weapon of offence. The fact that the said axe was the weapon of offence stands established by the opinion Ex.PW-15/C. The said recovery is clearly admissible under Section 27 of the Evidence Act. Thus, the circumstance of the knowledge of the accused that the recovered axe was used to strike the deceased, and his knowledge about where the said axe was left/ thrown after the commission of the offence stand duly proved. He has, however, not offered any explanation for his knowledge of these facts. Therefore, there is no substance in the plea raised by counsel for the accused.
72. As a matter of fact, need of examining independent witnesses, while making recoveries pursuant to the disclosure statement of the accused is a rule of caution evolved by the Judiciary, which aims at protecting the right of the accused by en Page no.22/ 32 (Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar suring transparency and credibility in the investigation of a criminal case. When re covery is made pursuant to the statement of the accused, seizure memo prepared by the investigating officer need not mandatorily be attested by independent wit nesses. Nonattestation of seizure memo by independent witnesses cannot be a ground to disbelieve recovery of articles' list consequent upon the statement of the accused. There was no requirement, either under Section 27 of the Evidence Act or under Section 161 CrPC to obtain signature of independent witnesses. If the version of the police is not shown to be unreliable, there is no reason to doubt the version of the police regarding arrest and contents of the seizure memos.
73. In view of the above cited judgments and forgoing discussions, it can be held that in the present case, the recovery made when the accused was in custody has been established with certainty. The testimony of the recovery witnesses remained consistent and corroborated each other in material particulars and remained abso lutely unshaken and, in fact, nothing has been elicited from them to disprove their creditworthiness. The recovery made pursuant to disclosure statement of the ac cused is duly proved by the prosecution and there is no substantial reason to dis card the same. Recovery of the axe of the deceased at the instance of the accused is a strong incriminating evidence against the accused, especially when no plausible explanation is forthcoming from the accused.
RECOVERY OF CLOTHES OF THE ACCUSED
74. Case of the prosecution is that when the accused was arrested, he was wearing the blood stained clothes. Accordingly, PW16 got changed the clothes of the accused and seized the blood stained clothes vide seizure memo Ex.PW-8/G.
75. On the contrary, counsel for the accused denied the said pleas and pleaded that as per FSL report Ex. PX1, DNA profile could not be generated from the said clothes. Therefore, Page no.23/ 32 (Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar the said recovery is of no benefit to the prosecution.
76. PW-16 in his testimony specifically deposed that at the time of arrest, the accused was wearing a full sleeve T-Shirt of white colour, one shirt of red colour having yellow and black flower and leaf print made "Zemok" and one blue coloured lower make "Puma" and all the said clothes had blood stains. He got collected another set of clothes of the accused from his house through his staff and got it changed. Thereafter, the said clothes were seized vide seizure memo Ex.PW-8/G. He identified the said clothes Ex.P2 (colly). In his cross examination, no suggestions to the contrary were given by counsel for the accused. In his cross examination, no suggestion was given by counsel for the accused that the said clothes were not of the accused or that the same were planted upon the accused or that the same did not have the blood stains. PW8 also deposed to this effect. No suggestion was given to PW8 and PW16 that the seizure memo of the clothes Ex. PW8/G is a forged and fabricated document.
77. The accused in reply to the question no.22 of his statement u/s 313 CrPC stated that the police seized the clothes worn by him at the time of his arrest but denied that the same had blood stains. As such, the accused admitted seizure of his clothes at the time of his arrest and has not disputed the identity of the clothes produced in the court. So far as the blood stains are concerned, in cross examination of PW8 and PW16, no suggestion was given by counsel for the accused that once the said clothes were seized, they did not have the blood stains or the blood stains were put on the said clothes at that stage or subsequent thereto.
78. According to the FSL report Ex. PX-1, presence of the blood on the clothes of the accused Ex.P-2 (colly) stands proved. As per the said report, DNA profile could not be generated due to degradation of the sample. Role of the scientific evidence is to further corroborate the case of the prosecution. In the present case, once through ocular evidence and FSL report, it is proved that the clothes of the accused had blood stains, non generation of DNA profile from them is not fatal to be case of the prosecution.
Page no.24/ 32(Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar
79. In view of the foregoing discussions, it can be held that after the incident dated 18.02.2017, the accused remained absconded and was arrested on 19.02.2017 at 5.30 pm. As such, the accused was arrested at earliest. At the time of arrest, the accused was wearing the blood stained clothes Ex.P-2 which were sealed and seized immediately. The said clothes vide sealed parcel no.10 were sent to FSL for examination. On examination, the blood was detected on the said clothes.
80. Now the question arises whose blood was present on the clothes of the accused.
81. It is nowhere the case of the accused that he sustained some injuries due to which his blood had stuck on his clothes. As such, it can be held that the blood found on the clothes of the accused was not his blood.
82. As held above, the accused had not removed the deceased to the hospital. As such, it is not a case where blood of the deceased had stuck on the clothes of the accused accidentally. Even it is not the case of the accused.
83. Now the onus was upon the accused to prove as to how the said blood stains stuck on his clothes and who's blood was that which he has failed to discharge.
84. In view of the foregoing discussions, it can be held that the blood on the clothes of the accused was that of the deceased.
85. APP for the State pleaded that as evident from the record, there was no sign of forced entry in the house of PW-13 and the accused. As such, it is not a case that where the deceased was murdered by some third person while committing the robbery. Hence, it was the accused who committed the murder of the deceased.
86. On the contrary, counsel for the accused denied the said facts and pleaded that accused was not involved in the subject incident.
Page no.25/ 32(Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar
87. In the present case, PW-13 has nowhere stated that once she along with her granddaughter left the house, she locked it. It implies that once PW-13 left the said house, the deceased was present there and therefore, PW13 had not locked the said house.
88. PW-13 in her testimony turned hostile to the fact as to how she came to know about the incident and that the accused made the extra judicial confession to her. However, she deposed that after half an hour, once she came back to her house, she opened the door and found that the deceased was lying in the gory condition at the folding bed. From the said testimony of PW-13, it is evident that once she came back to the house, the accused was not present there. Further, the said house was not locked. It implies that the door of the said house was neither closed from the inside nor was locked from outside.
89. In the crime team report Ex.PW11/A and the photographs Ex.PW-4/A1 to A7, there is nothing to suggest that there was any forceful entry in the said house. In other words, there is nothing to suggest that any article was scattered in the said house including the room or any article was found stolen. Even it is not the case of the accused. Hence, it can be held that the person who assaulted and committed the murder of the deceased was very well known to her, therefore, she had not objected to the presence of the said person. As such, it is completely ruled out that some third person unknown to the deceased had assaulted and committed her murder.
90. Perusal of the postmortem report Ex.PW-15/A reveals that no injury was found on the body of the deceased below her neck portion. At the same time, it is evident from the said report that the injuries were inflicted on the vital parts of the body of the deceased with the axe and she was manually strangulated also. In such a condition, if a person is attacked, then the said person must try to save himself from such an attack and struggles for his life. In the said scenario, it is quite obvious that he uses his both hands to save him and in that case, it is very natural that he sustains some injury on his hands in addition to other body parts especially once the weapon of offence is the axe. However, in the present case, as per postmortem report, no such injury was noticed on the body of the deceased. As per the FSL report Ex.PX2, no metallic poison, ethyl and methyl alcohol and any other such Page no.26/ 32 (Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar substance was found in her body.
91. In view of the foregoing discussions, it can be held that no third person had entered the said house to commit the offence. It can also be held that the person who had assaulted and murdered the deceased was very well known to her and his only object was to murder the deceased. To achieve the said object, he had not only inflicted the injury on the neck of the deceased but also to make assure that she should not survive at all, the said person had also manually strangulated her. The said act of that person shows that he hatred the deceased to such an extent that he wanted to be assured that the deceased should not survive under any circumstances.
92. According to PW13, when she reached at the house and noticed the condition of the deceased, she raised hue and cry. Resultantly, the neighbours had come there. As held above, PW13 removed the deceased to the hospital. As per MLC of the deceased, the deceased was examined at 11.15 pm. It implies that there was sufficient time with PW13 to make the police call. However, as evident from the record, PW13 did not make any police call. As alleged by the accused, once he got the information about the condition of the deceased, he was near the place where the sangeet ceremony was going on. However, as held above, instead to make the police call, he absconded from there. Even the neighbours had not made the police call. In fact, DD no. 80B was recorded at the instance of Ct. Krishan Rathi. The said conduct of PW13 and the accused is highly suspicious in nature. In the given circumstances, it can be inferred that PW13 knew who had committed the murder of the deceased but since she wanted to save that person, she did not make the police call nor asked any of his neighbor to do so. Not only that, PW13 has turned hostile to save that person.
93. Now the question arises who was that person who was very well known to the deceased and to whom PW13 wanted to save for the murder of the deceased.
94. It is evident from the testimony of PW7 and PW13 that in the intervening night of 18.02.2017 and 19.02.2017, there was a sangeet ceremony in the neighbourhood of PW-13 Page no.27/ 32 (Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar and the accused. It is also evident from the testimony of PW-13 that PW-13 along with her granddaughter Ishika had gone to attend the said sangeet ceremony in her neighbourhood on 18.02.2017. It is also evident from the testimony of PW-13 that she had left her house to attend the said sangeet ceremony on 18.02.2017 at about 9 -9:30 pm and after half an hour there from i.e. at about 9:30 pm - 10:00 pm. When she came back to her house, she saw the deceased in gory condition on the cot. Hence, it can be held that the deceased was murdered on 18.02.2017 during that half an hour, when PW-13 along with her granddaughter remained absent from the said house as she had gone to attend the sangeet ceremony in the neighbourhood.
95. The accused in reply to the question no.17 of his statement u/s 313 CrPC admitted that PW-13 had gone to attend a function in the neighbourhood. The accused has also stated that when one of his friends informed him about the condition of the deceased, that time, he was standing at some distance from the place where the function was going on. Hence, it can be inferred that during the relevant period, the accused was near to his house. Now the question arises as to how the accused came to know about the said fact. The accused has not disclosed as to how he came to know the said fact. It is not the case of PW-13 that either she or her granddaughter had informed the said fact to the accused.
96. Keeping in view the foregoing discussions, in the given circumstances, two theories exist in which the accused would have come to know that PW-13 along with her granddaughter Ishika had gone to attend the said sangeet ceremony in her neighbourhood on 18.02.2017 i.e. (i) the accused was present in the house, when PW13 along with her granddaughter left the house or (ii) the accused was outside the house but had noticed that PW13 along with her granddaughter had left the house to attend the sangeet ceremony.
97. In case of 1st theory, it can be held that the deceased was lastly seen alive with the accused when PW13 along with her granddaughter left the house to attend the sangeet ceremony. As held above, within half an hour there from, the deceased was found murdered. As such, the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is very small. Since Page no.28/ 32 (Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar the gap is very small there is no possibility that any person other than the accused is the author of the crime.
98. In case of 2nd theory, it can be held that once, the accused noticed that PW13 along with her granddaughter left the house to attend the sangeet ceremony, he came back to the house and found the deceased sleepy. Taking the advantage of the said situation, he committed the murder of the deceased. Therefore, no mark of struggle is found on the body of the deceased at the time of postmortem.
99. In view of the foregoing discussions, it can be held that in either situation, the fact remains that the accused knew that PW13 along with her granddaughter left the house to attend the sangeet ceremony and taking the advantage of the same, he assaulted and committed murder of his wife i.e. the deceased. Therefore, the murderer was not some unknown person but was the accused. Therefore, to save the accused, PW7 and PW13 have turned hostile and this very fact shows that there was a ring of truth in the prosecution case. Reliance is placed on the judgment titled as "Ramappa Halappa Pujar & Ors. v State of Karnataka", passed by the Supreme court in Appeal (Crl.) 1344 of 2005.
CIRCUMSTANTIAL EVIDENCE
100. In the judgment titled as " Sharad Birdhichand Sarda Vs. State of Maharastra", reported in AIR 1984 SC 1622, the Hon'ble Supreme Court held:
(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) The circumstances should be of conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to be proved; and Page no.29/ 32 (Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
101. In the case titled as "Santosh Kumar Singh v. State", reported in (2010) 9 SCC 747, the Hon'ble Supreme Court held:
"42.................................. It has been held time and again that a false plea taken by an accused in a case of circumstantial evidence is an other link in the chain. In Trimukh Maroti Kirkan v. State of Maha rashtra [(2006) 10 SCC 681 : (2007) 1 SCC (Cri) 80] it has been held: (SCC p. 689, para 12) "12. ... The normal principle in a case based on circumstantial evi dence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly point ing towards the guilt of the accused; that the circumstances taken cu mulatively 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 they should be incapable of explana tion on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence."
and again: (SCC p. 690, para 14) "14. If an offence takes place inside the privacy of a house and in such circumstances, where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evi Page no.30/ 32 (Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar dence to establish the guilt of the accused if the strict principle of cir cumstantial evidence, as noticed above, is insisted upon by the courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capa ble of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
102. Applying the above principles of law to the present case, the prosecution has proved beyond reasonable doubt that on 18.02.2017, between 9.00 pm and 9.30 pm, when PW13 along with her granddaughter Ishika had gone to attend a sangeet ceremony in the neigh- bourhood, the accused assaulted his wife Pooja (the deceased) with the axe and had also manually strangulated her. Consequently, she died. Thereafter, the accused absconded. On 19.02.2017, at the time of his arrest, the accused was wearing the blood stained clothes and that blood was of the deceased. After his arrest, the accused made the disclosure statement and in pursuance thereto, he got recovered the weapon of offence i.e. the axe. In view of the forgoing discussions, it can be held that in the present case, the chain of evidence is so complete as not to leave any reasonable ground for the conclusion consistent with the inno- cence of the accused and shows that in all human probability the act must have been done by the accused.
103. In view of the foregoing discussions, it can be held that there is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any material infirmity, Page no.31/ 32 (Judgment) State Vs Vijay @ Shalu FIR no.190/17 U/s 302 IPC PS: Aman Vihar inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and forensic evidence. The prosecution witnesses have been able to build up a continuous link. Therefore, the prosecution has been able to prove the necessary intent and knowledge of the accused to commit the murder of the deceased pursuant to which the accused committed the murder of the deceased. As such, the prosecution has proved the essential ingredients of the offence for which the accused is charged with. Accordingly, the accused is held guilty for the offence under section 302 IPC.
104. Accordingly, the accused is convicted for the offence under section 302 IPC.
Digitally signed by PANKAJ PANKAJ GUPTA
Announced in the open court GUPTA Date:
2019.04.24
on this 23rd day of April, 2019. 16:03:33 +0530
(Pankaj Gupta)
ASJ, FTC, North-West
Rohini: Delhi
Page no.32/ 32