Delhi District Court
State vs . on 1 October, 2018
IN THE COURT OF SURESH KUMAR GUPTA
ADDITIONAL SESSIONS JUDGE04
& SPECIAL JUDGE (NDPS) SOUTHEAST: SAKET
COURTS: NEW DELHI
S.C No. 2273 of 2016
State
Vs.
1 Sumitra @ Sumanatra
W/o Sh. Inder Singh
R/o A2, Mavi Mohalla
Tehkhand, OIA PhaseI
New Delhi.
2 Azad S/o Sh. Bhram Pal
R/o Vill. Ganoli, PS, Loni
Distt. Ghaziabad, UP
3 Parminder Singh @ Pintu
S/o Sh. Rampal
R/o Vill. Moolsam,
Near Harijan Chaupal
Teh. Barut, Distt. Bagpat, UP
4 Pradeep S/o Sh. Bedpal @ Bedan
R/o Vill. Moolsam
Near Harijan Chaupal
Teh. Barut, Distt. Bagpat, UP
5 Jai Bhagwaan s/o Sh. Jagdish Prasad
R/o Vill. Moolsam
Near Harijan Chaupal
Teh. Barut, Distt. Bagpat, UP
State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.1 / 64
FIR No. 241/2011
PS : Okhla Industrial Area
U/s. 302 IPC
Instituted on : 16.11.2011
Committed on : 17.01.2012
Argued on : 12.09.2018
Decided on : 01.10.2018
JUDGMENT
1 The brief facts of the prosecution case are like this. On
11.08.2011DD No. 4A was received by ASI Suresh Chand upon
which he alongwith Ct. Ajay Kumar reached at A2, Mavi Mohalla,
Tehkhand, New Delhi, where they came to know that deceased has
been removed to Holy Family Hospital, New Delhi. ASI Suresh
Chand went to Hospital by leaving Ct. Ajay Kumar on the spot.
MLC of Kela Devi was taken who was already declared brought
dead by the doctor. He came back to the spot. One charpai was
found tilted from one side in the room of first floor. One blood
stained chaadar (sheet), blood stained jaipuri chunni, one pillow of
flower print, one mattress, empty cover of lock bearing word
Ramson and one black colour ladies purse were found on the bed.
One drawer of table was found half opened.
2 Sangeeta gave her statement to the police that she is
State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.2 / 64
home maker. Her marriage was solemnized around three years ago.
She alongwith her husband Nanak Mavi has been residing at the 3 rd
floor of the house. Her motherinlaw Kela Devi used to say in the
front room on the first floor. Her sisterinlaw (Jethani) Sumitra and
her husband Inder Singh reside in the room on the backside of the
first floor. Inder Singh is blind who is a teacher. Vinay and Ravi
reside at second floor with their families. Her motherinlaw used to
get up first of all in the morning. The children of Sumantra (accused
Sumitra) leaves for school in a Van at 06:30 am. On 11.08.2011 she
got up at 07:30 am. Her husband has gone to collect rent by keeping
the milk at home. She came downstairs after taking bath and went to
the room of her motherinlaw and saw that she was lying on the
floor. She was found covered with white sheet. The right hand
containing blood was out of the sheet. The chunni was lying towards
the door. The blood was also found on the sheet. There was no
movement in the body of her motherinlaw. She told this to her
jethani Poonam who also came down stairs. They lifted the sheet
from the body of their motherinlaw. The face was smeared with
blood. They raised an alarm upon which family members gathered
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on the spot. They removed her to Holy Family Hospital where she
was declared brought dead. Her motherinlaw has been murdered
by some unknown person. The eartops, artificial bangles (kangan)
and nosepin were found missing. Her statement was recorded.
Rukka was prepared and sent to PS through Ct. Ajay upon which
FIR was registered.
3 The investigation was handed over to Inspector/SHO
who came on the spot. Crime Team and Photographer were called.
HC Raj Singh has taken photographs of the spot from different
angles. SI Naresh Kumar, Incharge Crime Team has inspected the
crime scene and prepared the report. Ct. Anand has lifted the
chance/fingerprints. Unscaled site plan was prepared by IO. Inquest
papers were prepared and SI Surender was directed to shift dead
body from Holy Family to Mortuary, AIIMS, New Delhi. Pillow,
mattress, sheet, chunni, ladies purse, empty dibbi and broken iron
charpai were taken into possession vide separate recovery memos.
4 On 11.08.2011, the postmortem on the dead body was
conducted at Mortuary AIIMS. The dead body was handed over to
the relatives of the deceased. Doctor has handed over sealed
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pullandas containing clothes of the deceased, nails of the right and
left hand of deceased, one hair in the hand of deceased, scalp hair of
deceased, blood in guaze and two sample seals sealed with the seal
of Department of Forensic medicine, AIIMS, New Delhi which were
taken into possession and deposited in Malkhana.
5 The call detail record of family members of the deceased
were taken. The maximum number of calls were found on mobile
number 9310687740 (of Sumitra) in between May till 01.08.2011
with location of OIA PhaseI and 2. This number has been found
switched off after the day of incident. The number of calls were
found in between numbers bearing 7428528631 and 9310101336.
The mobile number 7428528631 belongs to Sumitra. The location
was OIA PhaseI. The calls have taken place from 10.08.2011 in
between 11:30 pm till 02:30 am. The earlier location of the phone
was Bhagpath and Ghaziabad. The phone number 7428528631 has
been found switched off after the incident. The mobile numbers
9310187740 and 9310101336 were found operating from this phone.
The number of calls came from mobile number 9350801432 to
7428528631 in July. The calls have been found between suspected
State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.5 / 64
mobile numbers 9310687740 and 9310855030.
6 Sumitra was interrogated in the presence of L/SI Madhu
Sharma. Her disclosure statement was recorded.
7 On 21.08.2011 accused Azad and Parminder were
arrested from main Loni Road, Village Tilla, Ghaziabad. Their
disclosure statements were recorded. Reliance LG Phone was
recovered from the possession of accused Parminder which was
taken into possession vide separate recovery memo. The
supplementary disclosure statements were recorded during the
course of investigation. The accused Azad has got recovered his
motorcycle bearing registration number UP16AC4384. One gold
kada and nosepin were kept in the motorcycle. All of them were
taken into possession vide separate recovery memo.
8 Accused Parminder has got recovered car bearing
registration No. DL3CE4956. One gold kadda bearing words RGJ
22 C were got recovered from under driving seat. The car and gold
kadda were taken into possession vide separate recovery memos.
Accused Pardeep @ Kallu was arrested and one gold jhumki was
recovered from his possession and same was sealed in a pullanda
State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.6 / 64
with seal KL and taken into possession vide separate recovery
memo. The case property was deposited in the Malkahna. The
accused were got medically examined. The blood in guaze and hair
scalp were separately sealed in the pullandas and taken into
possession. The used mobile phone was searched but in vain.
9 On 26.08.2011 accused Jai Bhagwan was arrested form
his village. His disclosure statement was recorded. He was got
medically examined. Blood in guaze and scalp hair were separately
sealed into pullandas and taken into possession. One jhumki (of ear)
was found in the possession of accused Jai Bhagwan which was
sealed in a pullanda vide seal of KL and taken into possession vide
separate recovery memo.
10 On 07.09.2011 PMR was collected from the Hospital.
On 12.09.2011, the exhibits were sent to FSL Rohini for
examination. The certified copies of CAF of mobile phone number s
9310687740, 7428528631, 9310101336, 9350801432 and
9310820934 were taken from the concerned service provder. On
13.10.2011 the case property was put to TIP. The statements u/s 161
Cr.PC were recorded. The investigation was completed and charge
State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.7 / 64
sheet was filed in the Court.
11 The accused have put their appearance in the Court. The
copy of the challan and documents were supplied to them. The case
was committed to the court of Sessions by Ld. MM vide order dated
17.01.2012.
12 The charge under section 302 IPC r/w u/s 302/34 IPC
was framed against all the accused, charge for the offence u/s 404
IPC r/w 34 IPC was framed against all the accused except Sumitra,
charge for the offence u/s 201 IPC r/w 34 IPC is framed against
accused Sumitra, Azad and Parminder and charge for the offence u/s
411 IPC is framed against accused except Sumitra on 19.02.2013 to
which they pleaded not guilty and claimed trial.
13 The prosecution has examined 32 witnesses. The
prosecution evidence was closed. The accused have admitted FSL
report dated 30.9.2013 Ex. CA u/s 294 CrPC. The accused were
examined under section 313 CrPC. They have denied their
involvement in the case. Their defence is of denial simplicitor.
However, no defence evidence has been led.
14 The prosecution has examined 32 witnesses.
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15 PW1 SI Mahesh stated that on 17.10.2011 he alongwith
Inspector K. L. Meena has visited House No. A2, First Floor, Mavi
Mohalla, Tehkhand and prepared rough notes and measurements on
the pointing out of Inspector K. L. Meena and thereafter prepared
scaled site plan Ex.PW1/A. The rough notes and measurements were
destroyed thereafter.
16 PW2 Inspector Naresh Kumar stated that on 11.08.2011
he was in Mobile Crime Team. He has received an information from
the Control Room regarding a murder at House No. A2, First
Floor, Mavi Mohalla, Tehkhand upon which he alongwith HC Raj
Singh and Ct. Anand reached there ASI Surender Chand and
Inspector K. L Meena alongwith staff were already present. He has
inspected the spot and found one blood stained bed sheet, a blood
stained chunni, blood stained pillow on the cot and prepared report
Ex.PW2/A. HC Raj Singh has taken the photographs. During cross
examination by the accused Azad the suggestion is denied that he
has not visited the spot and prepared the report. During cross
examination of Accused Parminder and Jai Bhagwan he stated that
he did not see any broken article except cot in the room. He did not
State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.9 / 64
notice any mobile phone in the room. During cross examination by
accused Pardeep and Sumitra he stated that furniture articles were
not found scattered in the room.
17 PW3 ASI Raj Singh has corroborated the version of
PW2 and further added that he has taken 11 photographs Ex.PA1 -
10 from different angles. The negatives are PB1 - 11. During cross
examination by all the accused he stated that he has visited the room
where incident has taken place. He has also visited the gallery
adjacent to it. The paper slip in the photographs PA6 7 bears the
words blood. The slip is put by him. He has stated blood in these two
photographs as it appeared blood.
18 PW4 Ct. Anand stated that no fingerprints were found at
the place of occurrence.
19 PW5 Rajender Parsad and PW12 Anil Kumar have
identified the dead body of deceased Kela Devi and received the
same vide receipt Ex.PW5/A.
20 PW6 Dr. Hari Parsad stated that on 24.08.2011 he has
medically examined the accused Pardeep @ Kalu whose blood in
gauze and scalp hair were sealed and handed over to the police
State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.10 / 64
alongwith sample seal. MLC of accused is Ex.PW6/A.
21 PW7 Dr. Munish Sharma stated that on 24.08.2011 he
has medically examined accused Parminder whose blood in gauze
and scalp hair were sealed and handed over to the police alongwith
sample seal. MLC of accused is Ex.PW7/A.
22 PW11 Dr. Hansraj Singh stated that on 24.08.2011 he
has medically examined accused Azad whose blood in gauze and
scalp hair were sealed and handed over to the police alongwith
sample seal. MLC of accused is Ex.PW11/A.
23 PW15 Dr. Ajit Kumar stated that on 27.08.2011 he has
medically examined accused Jai Bhagwan whose blood in gauze and
scalp hair were sealed and handed over to the police alongwith
sample seal. MLC of accused is Ex.PW15/A.
24 PW16 Dr. Mala Saini stated that on 11.08.2011 Kela
Devi was brought by Ravi Kumar to Holy Family Hospital with the
alleged history of assault. She has medically examined and declared
her brought dead. She was having bruise on neck and blood clots on
the neck, nose and the tongue was swollen and cyanosed. She has
prepared the MLC Ex.PW16/A and medical certificate of her cause
State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.11 / 64
of death Ex.PW16/B. During cross examination she stated that she
has not specified about the cause of death. She does not remember
whether fist of the patient was open or close at that time.
25 PW10 L/Ct. Suman Lata stated that on 11.08.2008 she
was posted in PCR, HQ. On that day L/Ct. Sunita has transmitted a
call to her which was further transmitted to ASI Sushma, CAW Cell.
Ex.PW10/A is the Form1 of PCR form.
26 PW8 ASI Jawahar Singh stated that on 11.08.2011 he
was Duty Officer. On that day, at 09:06 am he has received an
information from PCR through wireless operator regarding the
murder of the mother of the caller upon which DD No. 4B
Ex.PW8/A was recorded. On that day another information was
received from Holy Family Hospital regarding admission of
deceased Kela Devi upon which DD No. 7 Ex.PW8/B was recorded.
On the same day, rukka was received from ASI Suresh Chand
through Ct. Ajay upon which he has got recorded FIR through L/Ct.
Usha on the computer, copy of which is Ex.PW8/C. He has made an
endorsement Ex.PW8/D on the rukka and sent to Inspector K.
L.Meena for further investigation. The special report was sent to
State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.12 / 64
Ilaqua Magistrate through Ct. Jammu Ram.
27 PW9 Ravi Kumar stated that deceased was his mother
who used to sleep at first floor of the house. On 11.08.2011 at 8 am
he came from second floor to the room of his mother and saw that
she is lying unconscious and blood was coming out from her mouth
and neck. The eartops, nosepin and one pair of kangan were found
missing from her body. They removed her to Holy Family Hospital
where she was declared brought dead. She was taken to mortuary,
AIIMS where he has identified her dead body vide statement
Ex.PW9/A and received the body vide receipt Ex.PW5/A. Accused
Sumitra is his bhabi and wife of Inder Singh. His mother deceased
Kela Devi used to monitor her movements and check about the
persons who used to visit her time to time. This was not liked by
accused Sumitra. He has identified the accused. On 13.10.2011 he
has identified the looted jewellery articles in the TIP proceedings
Ex.PW23/A. During cross examination by accused Azad he stated
that he did not tell to the police that his mother used to keep eye on
the movements of accused Sumitra and that of visitors. The
suggestion is denied that case property was shown to him at PS by
State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.13 / 64
the IO. They have rental income. The suggestion is denied that his
mother used to have frequent quarrel with the tenants on the issue of
non payment of rent or he is deposing against Azad at the instance of
the police. Accused Azad not only used to visit their house on
functions but also in routine to meet the accused Sumitra. He has
seen him 2 - 3 times in his house. Accused Azad is their relative.
During cross examination by accused Sumitra he stated that they
have one main entrance gate of the house and it is not his duty to
close the same. The suggestion is denied that his brother Inder is
having extra marital affair that is why he has deposed against the
accused Sumitra. During cross examination by accused Parminder
and Jai Bhagwan he stated that he has seen his mother at 10 pm
when she came back from the house of his maternal uncle. He has
talked with her for around 10 - 15 minutes. The suggestion is denied
that he was not present in the house on the previous night of the
incident.
28 PW13 Renu Mavi is daughterinlaw of deceased. She
stated that on 11.08.2011 at 07:55 am, she was at second floor of A
2, Mavi Mohalla, Village Tehkhand. Her sisterinlaw Sangeeta,
State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.14 / 64
residing at 3rd Floor, came downstairs and informed her that
something has happened to their motherinlaw upon which she
came to the room on first floor of her motherinlaw where accused
Sumitra is also residing. The mouth and tongue of her motherinlaw
were stained with blood. Nose pin, gold tops and bangles were found
missing from her body. She called her husband Ravi Mavi. The iron
cot of her motherinlaw was found broken. The mattress was lying
on the floor. The bed sheet and dupatta were also stained with the
blood. Nanak brought a doctor who advised them to shift her to
hospital. They took her motherinlaw to Holy Family Hospital
where she was declared broght dead.
29 They suspect that accused Sumitra is involved in the
murder of her motherinlaw as she was having illicit relations with
Parminder. Accused Parminder and Azad used to visit the accused
Sumitra. Her motherinlaw used to tell her that accused Sumitra is
having illicit relations with Parminder. Accused Sumitra was present
in the house during the intervening night of 10/11.08.2011. On
11.08.2011 she has gone out with her two children who was seen by
her devar Nanak. On 10.08.2011 she has seen the accused Sumitra in
State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.15 / 64
her room at 8 pm and at 09:00 pm. During cross examination by
accused Sumitra, Jai Bhagwan and Pardeep she stated that police
have made inquiries from her since 11.08.2011. Her statement was
recorded at her house. The family members were available from
11.08.2011 till 24.08.2011. Accused Sumitra has not fled from the
house. On 11.08.2011 accused Sumitra has come back at 9 am. She
has not told to the police about the illicit relations of accused
Sumitra with Parminder. She has told to the police that she had seen
accused Parminder and Azad while coming and going out of her
room. One iron channel gate is fixed at the entrance of ground floor.
The accused Sumitra used to put lock on the gate. Accused Sumitra
used to keep the keys with her as her husband Inder Singh comes at
around 10 - 10:30 pm and her children used to go early in the
morning to the school. It was the duty of accused Sumitra to close
the gate at night and open it in the morning. She does not know
whether photographs of the gate were taken by the police. The
suggestion is denied that no lock was used to be fixed at the gate.
The entrance gate of the first floor used to be bolted from inside.
There is common staircase for the all the floors. There is parking
State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.16 / 64
space and room on the ground floor. All the family members were
called to the PS. Her inlaws have three properties in the same
locality which are rented out. The tenants used to pay rent to
deceased and Nanak Chand. The suggestion is denied that deceased
used to have quarrel with the tenants on the issue of delayed
payment of rent or she was having number of enemies. She cannot
tell the exact date of visit of accused Parminder in the house of
accused Sumitra but he used to visit ofently. He has visited when
accused Sumitra had undergone surgery around 5 - 6 months prior to
the date of incident. The accused Parminder used to even visit in the
presence of deceased. She has never seen Parminder while
establishing illicit relations with accuses Sumitra. Her motherinlaw
has told her that she has seen accused Parminder and Sumitra in
intimate position who has inquired it from accused Sumitra. The
accused Sumitra used to quarrel with deceased due to this reason.
The deceased has objected the meeting of accused Parminder with
accused Sumitra even one year prior to the incident. The suggestion
is denied that accused Parminder was not having any relations with
accused Sumitra or jewelery articles were not found missing from
State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.17 / 64
the body of the deceased. During cross examination by accused
Azad she stated that she has no idea whether deceased used to
collect Rs. 1 Lac as rent or she was having 500 tenants. Her husband
is a contractor. The suggestion is denied that deceased used to give
money to accused Sumitra by excluding other family members that
is why all of them were against her. There is gate at the end of
staircase of first and second floor but there is no such gate at third
floor. Her motherinlaw never used to bolt the gate from inside. The
lock at the main gate was used to put after the arrival of Inder Singh.
It was the duty of accused Sumitra to put a lock and open it. The
suggestion is denied that accused Azad has seen her three times with
strangers and this fact was brought to the notice of deceased who has
scolded her. Accused Azad is brotherinlaw of the nephew of
accused Sumitra. The suggestion is denied that on 30.06.2011 at 4
pm she has sent 4 persons to beat Azad who used to sit in the clinic
of accused Parminder or she alongwith Sangeeta has planned to
commit the murder of deceased and got killed her through hired
persons or deceased used to wear only artificial jewelery or they
have provided jewelery to the police which has been shown to have
State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.18 / 64
recovered from the accused Azad. The deceased used to keep her
money and jewelery in the almirah of accused Sumitra till February,
2011 when she has stolen Rs.2.5 Lac and thereafter, deceased started
keeping her money and jewelery in her almirah. Accused Sumitra
has given the said amount to Parminder and Azad. The suggestion is
denied that deceased used to keep jewelery and money with accused
Sumitra and thereafter she alongwith Poonam and Sangeeta has
hatched a conspiracy to kill deceased and implicated the accused
Sumitra. During cross examination by accused Sumitra she stated
that she has told to the police that accused Sumitra has illicit
relations with accused Parminder. Accused Azad and Parminder
used to visit to the room of accused Sumitra which was in front of
the house of the deceased. She is confronted with her statement
Ex.PW13/D1 recorded u/s 161 Cr.PC, where these facts are not so
recorded. She has not told to the police that deceased used to tell her
that accused Sumitra is having illicit relations with accused
Parminder. The suggestion is denied that deceased used to like
accused Sumitra and that is why accused Sumitra has been
implicated.
State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.19 / 64
30 PW20 Inder Singh is husband of accused Sumitra. He
stated that he is blind by birth. On 11.08.2011 at 07:45 am, he was
sleeping in his room at first floor when he heard the cries of
Sangeeta and Renu to the effect that blood is coming out from the
mouth of deceased upon which he came to the room of his mother.
Renu informed him that Kadas, kundal and nosepin are missing from
the body of deceased. There were injury marks on the body of
deceased. Renu has called her husband Ravi. He found no response
from the body of the deceased which was stiff. His brother Nanak
has called the doctor who advised them to shift her to hospital. The
took their mother to Holy Family Hospital where she ws declarded
brought dead. Later on he came to know that his wife Sumitra was in
league with the accused for committing the murder of deceased. His
wife was not on talking terms with the deceased for the last 8 - 9
months. Accused Sumitra used to make complaints against deceased
to him. Deceased was having suspicion on the character of accused
Sumitra a she was having illicit relations with accused Parminder.
Accused Parminder and Azad used to visit his house in order to meet
Sumitra which was objected by him and his mother. In June, 2011
State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.20 / 64
his mother has seen accused Sumitra in an objectionable condition
with accused Parminder in a room at ground floor. His mother used
to keep her belongings i.e. jewelery and money and Sumitra who has
stolen Rs. 2,5 Lacs and thereafter, his mother used to keep her
valuables in the almirah of Ravi and Renu. Ex.PW20/A1 to A4 are
the copies of ITR of his decesed mother. During cross examination
by accused Parminder, Jai Bhagwan and Pardeep he stated that he
has told to the police that after the incident of theft hismother has
stopped keeping valuables in the almirah of accused Sumitra and
started keeping them in the almirah of Renu and Ravi. He has also
told to the police that in June, 2011 his motherinlaw has seen
accused Parminder and Sumitra in an objectionable condition. He
has also told to the police that accused Azad and Parminder used to
visit his house in order to meet accused Sumitra (confronted with
statement u/s 161 Cr.PC Ex.PW20/DA where these facts are not so
recorded). He has come to know during investigation that Sumitra
has given Rs. 2.5 Lac to Azad and accused are involved in the
commission of murder. The suggestion is denied that accused
Parminder was not having illicit relations with accused Sumitra.
State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.21 / 64
During cross examination by accused Azad he stated that he
occasionally used to come at 10:30 - 11:00 pm as he used to come
back at 8 - 08:30 pm. Accused Sumitra used to bolt and open the
gate. Accused Azad has come on 2 - 3 occasions to his house in his
presence. He only used to exchange greetings with accused Azad.
The suggestion is denied that Renu, Sangeeta and Poonam are
involved in the murder of deceased. During cross examination by
accused Sumitra he stated that his mother has told him about the
illicit relations between accused Sumitra and Parminder. The
relations between accused Sumitra and his mother were strained
after the incident of theft. The suggestion is denied that they have
spread the rumours of illicit relations of Sumitra with Parminder due
to strain relations. They have lodged no complaint regarding theft of
Rs.2.5 Lac by accused Sumitra. His mother used to receive Rs. 1 -
1.25 Lac as rental income who was also an income tax payee. The suggestion is denied that his mother was not having any suspicion on the character of accused Sumitra or accused Sumitra was not having illicit relations with accused Parminder or accused Parminder and Azad did not visit their house in order to meet Sumitra or his mother State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.22 / 64 never kept jewelery and cash in the almirah of Sumitra. 31 PW22 Sangeeta is Jethani of accused Sumitra. She stated that she resides at the 3rd floor in the house. She has corroborated the version of PW12, 13 and 20 and further added that her statement Ex.PW22/A was recorded by the police. She stated that deceased used to wear artificial jewelery but she used to wear gold jewellery whenever she goes out. One day prior to the incident she had gone to meet her brother at Village Pillanji, Sarojini Nagar and also to see Rachna i.e. her Nanad who was admitted to hospital. Her motherinlaw has not been on talking terms with accused Sumitra for the last 4 - 5 months prior to the incident as she suspected that accused has stolen her Rs. 2.5 Lacs which were kept in the almirah of accused Sumitra. The deceased started keeping her valuables in the almirah of Ravi and Renu. It was revealed to them that accused Sumitra is having relations with someone. They have come to know after the death of deceased that accused Sumitra is having relations of accused Parminder who alongwith accused Azad used to visit the house. Her statement was recorded after 9 - 10 days of the incident. She has identified one tops (jhumki), gold kada and State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.23 / 64 nose pin worn by the deceased at the time of incident. During cross examination by accused Parminder and Jai Bhagwan she stated that on 10.08.2014 (inadvertently recorded as 2014) her motherinlaw has worn gold bangles and other jewelery articles while going to the Hospital and thereafter she went to Village Pillanji. She came back at 5 pm. Her motherinlaw has taken the jewelery articles from her. The suggestion is denied that accused Parminder and Jai Bhagwan have been implicated at the instance of the IO or she has identified the jewelery at PS before TIP. During cross examination by accused Azad she stated that accused Azad used to visit their house as relative of accused Sumitra. She was residing in the joint family at the time of incident. The deceased was lying on the floor when she went inside the room. The deceased was cremated on the same date. The suggestion is denied that accused has been implicated in order to solve the case. During cross examination by accused Sumitra she admitted that accused was not on talking terms with deceased prior to her murder. The kitchen and room of the accused Sumitra were separate. She did not move any application for correction regarding the word "artificial jewelery" recorded in her statement dated State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.24 / 64 11.08.2011. She admitted that she did not tell to the police that on 11.08.2011 that Sumitra is having illicit relation with accused Parminder.
32 No crossexamination was done by the accused Pradeep though opportunity was given.
33 PW18 Ct. Rakesh has taken the accused Pardeep @ Kalu to AIIMS Trauma Center for medical examination where doctor has collected scalp hair and blood in gauze and sealed them with seal of the hospital and handed over to him alongwith sample seal. He has handed over the same to the IO which was taken into possession vide fard Ex.PW18/A. 34 PW19 Rajeev Ranjan, Nodal Officer, Tata Tele Services stated that mobile no. 9210917955 belongs to deceased. Ex. PW19/A is the prepaid enrollment form, Ex. PW19/B is the voter I D card, Ex. Pw19/C is the CDR from 1.7.2011 till 20.8.2011, Ex. PW19/D is the cell ID chart and Ex. PW19/E is the certificate u/s 65B of Indian Evidence Act. During crossexamination he stated that he has generated CDR Ex. PW19/C from his system. No one can tamper with the system.
State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.25 / 64 35 PW23 Ms. Chetna Singh, MM, New Delhi stated that on 7.10.2011 application for TIP of case property was marked to her by Sh. Sudhanshu Kaushik, MM. She has conducted the proceedings. Ravi Mavi was produced by the IO. The witness has correctly identified the bangles, nose pin and ear rings. The TIP proceedings are Ex. PW23/A. The copy of the proceedings were supplied to the IO on the applications Ex. PW23/B and C. 36 PW24 ASI Suresh Chand stated that on 11.8.2011 DD No. 4A Ex.PW24/A was handed over to him upon which he alongwith PW14 Ct. Ajay Kumar reached at A2, Mavi Mohalla, Village Tehkhand where he came to know that dead body of the deceased has been shifted to Holy Family Hospital. He went to hospital by leaving the constable on the spot where he collected the MLC of deceased who was already declared brought dead. He came back to the spot and inspected the site. One white colour blood stained bed sheet, blood stained pillow, blood stained jakipuri chunni, mattress, one empty box of lock with words Ramson were found on the spot. Pillow and mattress were on the cot whereas other items were lying on the floor. The shelf of the table was partly open. State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.26 / 64 Statement Ex. PW22/A of Sangeeta was recorded on which endorsement Ex. PW24/B was made by him and sent to PS through Ct. Ajay Kumar for registration of case. Crime team reached on the spot. Ct. Came back with copy of FIR and rukka. Insp. K L Meena reached on the spot. Site plan was prepared at the instance of Sangeeta. Mattress, pillow, white colour bed sheet, chunni, purse, empty box and iron cot were taken into possession vide Fards Ex. PW24/C to H. The place of incident is shown in photograph Ex.PA1
- 10. He has identified the case property i.e. mattress, bed sheet, dupta, ladies purse, empty box and Ramson lock produced in the court. The identity of iron cot is not disputed. During cross examination by accused he stated that he has correctly recorded the statement of Sangeeta. Only female members were present in the house at that time. No gate is affixed at the entry of first floor. There was no trace of forcible entry.
37 PW14 Ct. Ajay has corroborated the version of PW24 in his examination in chief. During crossexamination by accused Parminder, Jai Bhagwan and Pradeep he stated that the place of incident is first floor. Accused Sumitra was present on the spot. A State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.27 / 64 gate is affixed at the entrance of the floor near stair case. He has not seen any broken kundi/latch from inside the room. 38 PW25 SI Mukesh stated that on 20.8.2011 he alongwith Insp. K L Meena and L/SI Madhu reached at the house of deceased where accused Sumitra was interrogated on the basis of the analysis of CDR. The disclosure statement Ex. PW25/A of accused Sumitra was recorded. The articles of personal search were taken into possession and sealed in a pullanda with seal KL and taken into possession. She was brought to PS. 39 PW27 Insp. K L Meena stated that on 11.8.2011 the investigation of this case was handed over to him. He alongwith SI Surender went to mortuary AIIMS, New Delhi. The postmortem on the dead body of deceased Kela Devi was got conducted. The pullandas were handed over to him by the doctor which were taken into possession vide Fard Ex. PW27/A. The dead body after postmortem was handed over to LRs of deceased vide memo Ex. PW5/A. They came back to the spot where crime team was called. The spot was inspected. Photographs of the spot were taken. Site plan Ex. PW27/B was prepared at the instance of ASI Suresh. State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.28 / 64 Mattress, pillow, white colour blood stained bed sheet, dupta of gold and black colour, ladies purse, one empty box of lock were sealed in pullandas with seal KL and taken into possession vide memos Ex. PW24/C to G. The folding bed was taken into possession vide fard Ex. PW24/H. He has collected Call detail records of the family members of the deceased. On 20.8.2018 accused Sumitra was arrested whose personal search and arrest memo Ex. PW27/C and D were prepared. Disclosure statement Ex. PW25/A was recorded. 40 On 21.8.2018 accused Parminder and Azad were arrested and their personal search and arrest memos Ex. PW26/A to D were prepared. Their disclosure statements Ex. PW26/E and F were recorded.
41 One gold bangle (kada) was recovered from the car bearing No. DL3CE4956 parked in front of B S Tomar Clinic, Chirori Market at the instance of accused Parminder. The Kada was sealed in a pullanda with seal KL and taken into possession vide Fard Ex. PW21/D1. The car was taken into possession vide Fard Ex. PW21/D. Reliance LG phone was taken into possession from accused which was sealed in a pullandawith seal KL and taken into State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.29 / 64 possession vide Fard Ex. PW26/G. Pointing out memo of the place of occurrence Ex. PW21/J was prepared at his instance. 42 One motorcycle bearing No. UP16AC4384 was recovered from the above said market at the instance of accused Azad. One golden kada and nose pin were recovered from the tool kit of motorcycle. The nose pin and kada were sealed in a pullanda with seal of KL and taken into possession alongwith motorcycle vide separate recovery memos.
43 On 23.8.2011 accused Pradeep was arrested from village Chirori, PS, Loni, Ghaziabad, UP whose personal search and arrest memos Ex. PW 21/E and F. His disclosure statement was recorded. The accused got recovered one gold colour jhumki which was found in his possession. The jhumki was sealed in a pullanda with seal KL and taken into possession vide memo Ex. PW21/H. 44 On 26.8.2011 accused Jai Bhagwan was arrested whose personal search and arrest memos Ex. PW17/A and B were prepared. Disclosure statement Ex. PW17/D was recorded. The accused got recovered one piece of golden jhumki which he was carrying at the time of his arrest. It was sealed in a pullanda with seal KL and taken State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.30 / 64 into possession vide Fard Ex. PW17/C. 45 On 13.10.2011 TIP of the recovered articles was got conducted. Ravi Mavi has identified the articles in TIP proceedings Ex. PW23/B. 46 The accused were got medically examined. The scalp hair, blood group of accused Parminder, Azad, Pradeep and Jai Bhagwan were taken into possession vide seizure memos Ex.PW18/A and Ex.PW27/E. The exhibits were sent to FSL. He got prepared scaled site plan of the place of occurrence from SI Mahesh of Crime Branch. The pointing out memos of place of occurrence Ex. PW27/F was prepared at the instance of accused Azad Singh. Accused Azad Singh also pointed out the place, where he had thrown away the SIM provided to him by coaccused Sumitra after destroying it. The said memo is exhibited Ex.PW27/G. He has got conducted proceedings u/s 174 Cr.PC Ex.PW27/H (running into 2 pages).
47 He has inspected the call details record of accused Azad and Parminder and which show that they were present at the place of occurrence at the time of commission of murder. It was also revealed State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.31 / 64 that accused Sumitra was in touch with them through her mobile. The mobile phone, which was used by accused Sumitra and handed over to Azad and further Azad handed over same to Parminder was destroyed by him and same could not be recovered. Only mobile phone used by accused Parminder was recovered.
48 Accused Sumitra was using mobile SIM No. 3478528631, which was issued in the name of Parminder. Accused Parminder was using mobile SIM No. 9310101336. He recorded statements of witnesses and prepared the challan and same was submitted in the Court. All accused persons are present in the Court (correctly identified by the witness)He has identified the case property produced in the court 49 During cross examination by accused Parminder and Jai Bhagwan, he stated that accused Parminder was arrested from Bus Stand, village Tilla. Accused Parminder is a physically handicap from both the legs. Thre is no eye witnessto the incident. Ex. PW27/D1 and 2 are the documents filed by the accused Parminder in the telephone company to obtain the same in his name. The suggestion is denied that no prudent person will take handicap State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.32 / 64 person with him in order to commit the murder or accused Parminder did not know deceased or her family members or he was not on visiting terms with the family of deceased. During cross examination by accused Pardeep he stated that there are six rows in the jhumka recovered from accused. The suggestion is denied that nothing was recovered from the accused or the case property is planted. During crossexamination by accused Sumitra he stated that there is one main gate for entrance in the building. The suggestion is denied that accused Sumitra has not talked to any of the accused from the mobile phone rather Inder Singh used to talk to the accused from his mobile or Inder have extra marital relations or accused is implicated at the instance of her husband. During cross examination by accused Azad he stated that statement Ex. PW9/A of Ravi was recorded by him. The wooden box is not shown in the site plan Ex. Pw27/B. The family members of deceased did not approach the police in between 11.8.2011 - 20.8.2011. He did not file any document that phone number 742528631 was owned by accused Sumitra. No mobile phone was recovered from possession of accused Sumitra. He has not filed any document that accused State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.33 / 64 Azad has given mobile phone to accused Sumitra. He has collected the call details of family members of the deceased but same are not placed on record. He has not filed any document that accused Parminder is registered owner of car and accused Azad is registered owner of motorcycle. The car and motorcycle were recovered from near the clinic of Dr. B S Tomar, village Chirori. The clinic was closed at that time. No one agreed to become a witness to the recovery. The Pradhan of the village was not called. The suggestion is denied that accused Azad and Parminder did not give disclosure statements.
50 PW21 Ct. Ravinder has corroborated the version of PW27 and further added that accused Azad has told that he has purchased the motorcycle in the name of his cousin from a sum of Rs. 1 lakh given to him by accused Sumitra for the murder of deceased. The accused Parminder has got recovered one kada from under the driving seat of the car No. DL3CE4956. The jhumki was recovered from the personal search of accused Pradeep. He has identified the case property produced in the court. During cross examination he stated that statement of Azad was recorded prior to State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.34 / 64 the recording of statement of Parminder. They have reached at 2pm at Chirori market. No person by the name of Dr. B S Tomar was present. (Vol. Stated that accused Parminder has opened the shop in the name of Dr. B S Tomar. ) IO has requested the neighours to join them but one of them has agreed. The tool box of the motorcycle was closed which was opened with the key of private car used by them. The motorcycle was locked at the time of recovery which was also opened with the same key. The driver of the private car was not associated in the proceedings. He admitted that gold kada and nose pin are available in the market. IO has not put any identification mark on recovered kada and nose pin (recovered items were having marks of quality and maker). The photographs of the jewellery items were not taken. The local police was neither called nor informed. IO has not prepared any site plan of the place of recovery. They took around 11/2 hours to conclude the proceedings. The cloth used to prepared pullanda was brought from one shop situated in the market. 51 Accused Pradeep was arrested from the market at around 5.30pm on the basis of secret information. The gold jhumki was recovered in the personal search of accused and thereafter his State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.35 / 64 disclosure statement was recorded. No public witness was called at the time of his arrest and recording of disclosure statement. They came at 7.30pm to PS, Okhla. The suggestion is denied that he has not joined the investigation or signed all the memos at PS or he is deposing falsely.
52 PW17 Ct. Vinod has corroborated the version of PW27 and further added that jhumki was sealed in a pullanda with seal KL and taken into possession vide separate recovery memo. The pointing out memo of place of occurrence Ex. PW17/E was prepared at the instance of accused. He has identified the case property i.e. jhumki produced in the court. During crossexamination by accused Jai Bhagwan he stated that accused was present in his house. The accused was interrogated in the presence of other villagers who were present there. They left the house of accused at around 5pm. Taxi driver was not joined in the proceedings. The personal search of accused was conducted by IO in his presence who has also offered his search prior to taking search of accused. The public persons were requested to join but none of them agreed. No blood stain was noticed on the jhumki. 23 respectables from the village apart from State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.36 / 64 family members were present. He admitted that his signature is not the seizure memo Ex. PW17/C but his name is mentioned. The suggestion is denied that jhumki is not seized as his signature does not find reflection in seizure memo. He admitted that personal search and arrest memos Ex. PW17/A and B do not bear his signature. The suggestion is denied that jhumki is planted on the accused. 53 PW26 Ct. Sanjay has corroborated the version of PW27 and further added that pointing out memo Ex. PW26/H of the place of occurrence was prepared at the instance of accused Parminder. On 23.8.2011 supplementary disclosure statements Ex. PW21/A & B of accused Parminder and Azad were prepared. He has identified the mobile phone of Reliance LG Ex. PW26/P1 produced in the court. 54 PW28 Ct. Dinesh has deposited 13 duly sealed pullandas and 5 sample seals in FSL, Rohini.
55 PW29 Yogesh Tripathi, Nodal Officer, Reliance Communication stated that he has been working in the company since August, 2015. He has brought the summoned record pertaining to Mobile Numbers 9310687740, 7428528631, 9310101336, 9350801432 & 9310820934.
State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.37 / 64 56 The mobile number 9310687740 and 7428528631 are in the name of Parminder. He has brought original Customer application form (CAF) alongwith ID Proof Ex.PW29/A & D, call details records from 01.07.2011 till 20.08.2011 Ex.PW29/B & E alongwith certificate u/s 65B Indian Evidence Act Ex.PW29/C & F. 57 The mobile number 9310101336 & 9350801432 are in the name of Azad. He has brought original Customer application form (CAF) alongwith ID Proof Ex.PW29/G & J, call details records from 01.07.2011 till 20.08.2011 Ex.PW29/H & K alongwith certificate u/s 65B Indian Evidence Act Ex.PW29/I & L. 58 The mobile number 9310820934 is in the name of Shiv Kumar. He has brought original Customer application form (CAF) alongwith ID Proof Ex.PW29/M, call details records from 01.07.2011 till 20.08.2011 Ex.PW29/N alongwith certificate u/s 65 B Indian Evidence Act Ex.PW29/O. 59 During cross examination by the accused he admitted that system and data were not under his control in the year 2011. He has no knowledge if the data has been tampered or not in 2011 (data cannot be tampered with). The suggestion is denied that range of State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.38 / 64 tower decreases in a populated area.
60 PW30 SI Surender has corroborated the version of PW
27. 61 PW31 Dr. Raghvender Kumar stated that on 11.08.2011 he was posted as SR at AIIMS New Delhi. On that day, he has conducted postmortem on the body of deceased Kela Devi and issued the report Ex.PW31/A. The cause of death was asphyxia due to combined effect of antemorterm smothering, throttling and chest trauma which were sufficient to cause the death in the ordinary course of nature. During cross examination he stated that half a day means 12 hours. There may be variation in time on the either side as exact time of death cannot be ascertain. He did not notice that blood was coming out from nostrils or mouth. The rigor mortis was found in the lower limb. The suggestion is denied that it is the case of suicide.
62 PW32 HC Arvind stated that he has been working as MHC(M), PS Okhla since 06.03.2017. The relevant entries are made at Sl. No. 3246 dated 11.08.2011 and connecting entries are 3259 - 63 in Register No. 19, copy of which is Ex.PW32/A. The State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.39 / 64 sealed pullandas were sent to FSL through Ct. Dinesh vide RC No.138/21/11 dated 12.10.2011. The copy of entry is Ex.PW32/B. The copy of receipt of depositing 16 sealed pullandas with FSL, Rohini is Ex.PW32/C. 63 Ld. Addl. PP for the State submitted that the case is based upon circumstantial evidence and prosecution has proved the entire chain of circumstances to bring home the guilt of accused. She further submitted that a Call detail records of the accused show that they have hatched a criminal conspiracy to kill the deceased Kela Devi. She further submitted that accused Parminder and Azad were in touch with accused Sumitra through their mobile phone on the day of incident as the location of their mobile phones was that of OIA and prior to that the location of the mobile phone of accused Parminder and Azad was that of Ghaziabad and Bhagpath. She further submitted that accused Sumitra has a motive to kill the deceased as she was having illicit relation with Parminder and deceased has objected to it and even saw her in an objectionable position. She further submitted that factum of illicit relation of accused Parminder with accused Sumitra has come on record State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.40 / 64 through the testimony of the family members of deceased. She further submitted that deceased was wearing jewellery at the time of her murder which was removed and shared by the accused. She further submitted that jewellery articles have been recovered from the possession of accused Parminder, Azad, Jai Bhagwan and Pardeep which were duly identified by PWRavi during the course of TIP. She further submitted that accused Sumitra has paid a sum of Rs. 1 Lac to accused Azad for the murder of deceased who has purchased motorcycle from the said amount which has also been recovered. She further submitted that recovery of the articles of deceased from the accused raises a presumption u/s 114 Indian Evidence Act against him.
64 Ld. Counsel for accused Sumitra submitted that there is no evidence on record that she has illicit relations with the accused Parminder as no evidence has come on record that her relations were strained with her husband or with the deceased or any other family member. He further submitted that there is no evidence on record that she was nursing a grudge against the deceased in order to eliminate her. He further submitted that there is no evidence that she State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.41 / 64 was possessing any mobile phone or any mobile phone was handed over to her by coaccused. He further submitted that she cannot be connecting with the case in hand merely on the basis of call details records of coaccused. He further submitted that there is no evidence that she has hatched a criminal conspiracy with coaccused to kill the deceased. He further submitted that there is no evidence on record to connect her with the case in hand.
65 Ld. Counsel for other accused submitted that prosecution has failed to prove all the circumstances leading to the guilt of the accused. He further submitted that call detail records of accused Parminder and Azad nowhere point outs towards the criminal conspiracy with coaccused or connect them with the case in hand. He further submitted that there is no evidence on record that accused Parminder and Azad have made any call from their mobile phone to coaccused Sumitra. He further submitted that accused Parminder was not having illicit relation with coaccused and a theory has been evolved by the prosecution to fix the accused. He further submitted that there is no evidence on record that car and motorcycle belong to accused Parminder and Azad. He further submitted that no State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.42 / 64 independent witness has been associated at the time of effecting the alleged recovery. He further submitted that no recovery has been effected from both of them. He further submitted that facts allegedly disclosed by them were within the knowledge of the police so it cannot be said that any information was furnished by them to the police.
66 He further submitted that there is no evidence on record to show that accused Jai Bhagwan and Pardeep are involved in any criminal conspiracy in order to kill the deceased. He further submitted that no recovery has been effected from accused Jai Bhagwan and Pradeep of them as the same is planted upon them. He further submitted that both the accused have been falsely implicated. He further submitted that all the accused cannot be convicted merely on the basis of suspicion. He further submitted that deceased might have been killed by some other person as she was having number of tenants and enemies.
67 Heard and perused the record.
68 The case relates to the circumstantial evidence so it would be appropriate to recapitulate the factors to be taken into State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.43 / 64 consideration in such cases as explained by Hon'ble Apex Court in Anjan Kumar Sharma Vs. State of Assam (2017) 14 SCC 359 :
"(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' not and 'may be' established;
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not the explainable on any other hypothesis except that the accused is guilty;
(3) The circumstances should be of a conclusive nature of tendency;
(4) They should exclude every possible hypothesis except the one to be provided; and (5) 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 shown that in all human probability the act must have been done by the accused (See: Sharad Birdhichand Sarda v. State of Maharashra (1984) 4 SCC 116; M G Agarwal v. State of Maharashtra AIR 1963 SC 200)."
69 The principals with regard to appreciation of circumstantial evidence have been explained in Gagan Kanojia Vs. State of Punjab (2016) 13 SCC 516 which are like this.
"(1) There must be a chain of evidence so far complete State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.44 / 64 as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused;
(2) Circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such character that it is wholly inconsistent with the innocence of the accused and is consistent only wit his guilt;
(3) There should be no missing links but it is not that every one of the links must appear on the surface of the evidence, since some of these links may only be inferred from the proven facts;
(4) On the availability of two inferences, the one in favour of the accused must be accepted' (5) It cannot be said that prosecution must meet any and every hypothesis put forward by the accused however far fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise."
70 In the cases based upon circumstantial evidence there is a danger of conjecture or suspicion taking the place of legal proof. The various circumstances in the chain of events must be such so as to rule out the reasonable likelihood of innocence of accused. The missing of important link snaps the chain of circumstances and the other circumstances cannot, in any manner established guilt of State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.45 / 64 accused beyond all reasonable doubt.
71 The prosecution has examined 32 witnesses.
72 PW9 Ravi Kumar is brotherinlaw of accused Sumitra and son of deceased. PW13 Renu Mavi is wife of PW9. PW20 Inder Singh is husband of accused Sumitra and son of deceased. PW22 Sangeet is daughterinlaw of deceased and wife of Nanak Mavi. All these are family members of deceased as well as of accused Sumitra.
73 PW17 Ct. Vinod, PW21 Ct Ravinder and PW27 Insp. Kanchan Lal are the witnesses to the arrest and recovery of the jewellery itmes from the accused Parminder, Azad, Pradeep and Jai Bhagwan. PW27 is the IO of the case.
74 The statement Ex.PW22/A of PW22 led to the registration of FIR Ex.PW8/C. 75 The prosecution case rests upon the circumstantial evidence i.e. motive to commit the offence, recovery of jewellery articles from the accused Parminder, Azad, Pradeep and Jai Bhagwan which were allegedly worn by the deceased at the time of murder and call detail records of mobile phones of accused State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.46 / 64 Sumitra, Parminder and Azad.
76 The motive to commit the murder of the deceased is that deceased used to keep her valuables with accused Sumitra. Accused Sumitra has committed theft of Rs.2.5 Lacs from the amount kept with her by the deceased. The accused Sumitra has alleged illicit relations with accused Parminder which has come to the notice of deceased who used to keep track on her movements. She was not having good relations with deceased. In June, 2011 deceased has also seen the accused Sumitra in an objectionable position with accused Parminder. This was objected by the deceased. The relations have become strained.
77 The motive does assume importance when the case is based upon circumstantial evidence. Support is drawn from Arjun Malik v. State of Bihar, 1994 Supp.(2) SCC 372.
78 The statement Ex.PW22/A nowhere shows that accused Sumitra was having any illicit relations with accused Parminder. 79 The testimony of PW9 shows that accused Sumitra has illicit relations with accused Parminder who alongwith accused Azad used to visit the house of accused Sumitra. Deceased has told about State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.47 / 64 the illicit relations of accused Sumitra to her. She was confronted with her statement Ex.PW13/D1 recorded u/s 161 Cr.PC by the police where it is not so recorded. It is clear that on 24.08.2011 her statement u/s 161 Cr.PC was recorded that is after the arrest of accused Sumitra on the basis of CDR. Her statement u/s 161 Cr.PC nowhere shows that accused Sumitra was having illicit relations with accused Parminder. It only shows that deceased used to harass the accused. Her testimony shows that she has improved her version that accused Sumitra was having illicit relations with accused Parminder or accused Parminder and Azad used to visit her house. Her testimony to his effect cannot be relied upon.
80 The testimony of PW20 shows that he has come to know later on that his wife i.e. accused Sumitra was in league with accused Parminder, Jai Bhagwan and Azad for committing the murder of deceased. He alongwith deceased was having suspicion on the character of accused Sumitra as she was having illicit relations with Parminder. In June, 2011 deceased has seen accused Sumitra and Parminder in an objectionable condition on the ground floor. Accused Parminder and Azad used to come to meet accused State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.48 / 64 Sumitra. He was confronted with his statement Ex.PW20/DA recorded u/s 161 Cr.PC where it is not recorded that deceased has seen accused Parminder and Sumitra in an objectionable position in June, 2011 at the ground floor or accused Azad and Parminder used to visit the house to meet Sumitra or deceased objected to their visits in the house.
81 He has made improvements in his testimony from the facts recorded in the statement u/s 161 Cr.PC. His testimony nowhere shows that his relations with accused Sumitra were strained due to her alleged illicit relation with the accused Parminder. His testimony nowhere shows that he has confronted the accused Sumitra for having illicit relations with accused Parminder. His testimony nowhere shows that he has ever objected to the visits of accused Parminder and Azad in his house though his testimony shows that he used to exchange greetings with Azad. There is nothing in his testimony that his relations with accused Sumitra were not smooth or accused was nursing any grudge against the deceased. He is husband of accused Sumitra. It cannot be believed that he will remain quite on coming to know of illicit relations of accused State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.49 / 64 Sumitra with accused Parminder. His testimony to this effect cannot be relied upon.
82 The testimony of PW22 shows that she came to know after the death of the deceased that accused Sumitra is having illicit relations with accused Parminder meaning thereby that she was not aware that accused Sumita was having any relations with accused Parminder.
83 The testimony of PW9 shows that character of accused Sumitra was not up to the mark as a result deceased used to monitor her movements which were not liked by her. His testimony nowhere shows that accused Sumitra was having any illicit relations with accused Parminder or accused Sumitra was nursing any grudge against deceased for watching her movements.
84 It is clear from their testimony that prosecution has failed to show that accused Sumitra was having illicit relations with accused Parminder or deceased has ever told to PW 13 & 20 that deceased had seen the accused Sumitra in an objectionable position with accused Parminder. The prosecution has failed to bring the evidence on record to show that accused Sumitra was having illicit State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.50 / 64 relations with accused Parminder. The prosecution has failed to bring evidence on record that this was the motive to commit the murder of the deceased on the part of accused.
85 Let us see it from another angle. PW13 & 20 were allegedly aware of the illicit relations of accused Sumitra with accused Parminder. This fact has become open especially when it was brought to the notice of PW20 i.e. husband of accused Sumitra. There was nothing secret in the affair. There was no question of eliminating the deceased when this fact was allegedly in the knowledge of PW13 & 20. The motive to kill becomes strong when this fact is not within the knowledge of anyone and accused remains under the fear that it might not be disclosed to someone. In these circumstances, the motive on the part of accused to kill the deceased does not inspire confidence.
86 The other circumstance relied upon by the prosecution is that accused Sumitra used to lock the entrance gate at the first floor at night as her husband used to come late and used to unlock the gate in the morning as her children used to go school at 7 am. The testimony of PW13 shows that it was the duty of accused Sumitra to State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.51 / 64 put a lock on the channel gate as her husband used to come in the last and to open the gate in the morning. PW20 is husband of accused Sumitra. His testimony shows that he used to come back at 8 - 08:30 pm and occasionally comes at 10:30 - 11 pm. There is nothing in their testimony that PW20 has come late in the evening on that day and thereafter accused Sumitra has put a lock at the channel gate. There is no evidence that accused Sumitra has deliberately kept open the channel gate or did not lock in order to facilitate the entry of coaccused in the house. There should be specific evidence that accused Sumitra has put a lock on the channel gate on that day and this evidence is missing as such the general statement that accused used to put the lock at Channel gate does not inspire confidence.
87 The scaled site plan Ex. PW1/A shows that there is lobby in between the room of deceased and that of accused Sumitra. The door is shown on both sides of the lobby. PW20 is the husband of accused Sumitra. He was at home on that night. His testimony nowhere shows that he immediately felt asleep after coming to the home. There is nothing in his testimony that he was in sound sleep State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.52 / 64 due to consumption of some intoxicant. Four persons have allegedly entered in the room of deceased that too after accused Sumitra allegedly opened the channel gate. There must have been some activity at the time of murder of deceased in her room. It seems improbable that PW20 remained unaware about the movements of accused Sumitra when she allegedly got up from the bed or about the incident took place in the room of deceased. All these facts creates doubt the story projected by the prosecution.
88 The testimony of PW22 shows that deceased used to wear gold jewellery whenever she used to go out of the house. One day prior to the incident, the deceased has gone to meet her brother at village Pilanji, Sarojini Nagar and also to see her Nanand who was admitted to hospital. She has gone by wearing the gold jewellery items i.e. karas (bangles), nose pin and tops (jhumki). No question or suggestion is put to her that deceased has not gone out while wearing gold jewellery. No question or suggestion is put to her that deceased was not having such jewellery items with her. The testimony of PW13 & 22 shows that nose pin, gold tops and gold bangles(karas) were found missing from her body.
State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.53 / 64 89 The prosecution has placed reliance on the testimony of PW17, 21, 25, 26 & 27 in order to prove the arrest of accused and subsequent recovery of alleged jewellery articles worn by the deceased at the time of murder.
90 The next circumstantial evidence against the accused Parminder, Azad, JaiBhagwan and Pradeep is the recovery of jewellery articles from their possession.
91 The testimony of PW27 shows that call detail record of the family members of the deceased were checked and thereafter accused Sumitra was arrested. The testimony of PW 25 and 27 shows that accused Sumitra was interrogated in the presence of W/SI Madhu who was arrested. The disclosure statement Ex. PW25/A was recorded. Her disclosure statement led to the arrest of coaccused Parminder and Azad. The testimony of PW26 and 27 shows that accused Perminder and Azad were arrested. Their personal search and arrest memos were prepared. Their disclosure statements Ex. PW26/E and F were recorded. The testimony of PW21, 26 and 27 shows that their supplementary disclosure statements Ex. PW21/A and B were recorded on 23.8.2011.
State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.54 / 64 92 The testimony of PW21 and 27 shows that accused Parminder took them to B S Tomar Clinic, Chirari Market, Loni, Ghaziabad and pointed out towards one Maruti car No. DL3CE 4956. The gold kada was got recovered by the accused from under the driver seat of the car. The recovery does not inspire confidence. The prosecution has failed to give any explanation for recording the supplementary disclosure statement. The car was parked in Chirori market. The car was parked in an open space which was visible to every one. No person from the market was associated to show that accused Parminder was running the clinic under the name of B S Tomar. No person from the market was associated to show that the accused Parminder has parked the car near the clinic. The registration certificate of the car is not placed on record to show that car belongs to accused Parminder. There is nothing in the testimony of PW21 & 27 that accused Parminder has opened the car with the help of key. The prosecution has failed to explain how the keys of the car were arranged in order to open the car when the keys of the car were not seized from the accused Parminder by the police. No public person has been associated though the alleged recovery has State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.55 / 64 been effected from the market. It is not the requirement that public persons should be associated but an earnest effort should be made to join them in case they are easily available. There is market at the place of recovery. There is nothing in the testimony of PW27 that shopkeepers were asked to join and all them refused to join the proceedings. In these facts, nonassociation of public persons put the recovery in zone of doubt. All these facts creates a doubt whether the recovery was actually effected from the car at the instance of the accused or not. The recovery does not inspire confidence. 93 The testimony of PW21 and 27 shows that accused Azad pointed out towards one motorcycle No. UP16AC4384 upon which one gold kada and nose pin (gold) were recovered from the tool kit of motorcycle.
94 The testimony of PW21 shows that motorcycle and tool box were locked at that time. The registration certificate of the motorcycle is not placed on record to show that motorcycle belongs to accused Azad. The registered owner of the motorcycle is not examined to show that he has given the motorcycle to accused Azad. The motorcycle was parked in the open which was visible to all. No State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.56 / 64 person from the market has been examined that they have seen accused Azad while parking the motorcycle. The keys of the motorcycle were not handed by the accused to the police. The motorcycle was unlocked with the help of key private car used by the police party. The said fact does not find reflection in the recovery memo for the reasons best known to the prosecution. No shopkeepers from the market was associated to inspire confidence in the mind of the court that recovery has actually been effected from the motorcycle parked near B S Tomar's clinic at the instance of accused Azad. There is nothing in the testimony of PW21 and 27 that shopkeepers have refused to join them. In view of these facts, the recovery becomes doubtful.
95 The testimony of PW21 and 27 shows that on 23.8.2011 accused Pradeep was arrested from village Chirori, PS, Loni, Ghaziabad, UP who arrest and personal search memos Ex. Ex. PW21/E & F were prepared. His disclosure statement Ex. PW21./G was recorded. One tops was recovered from pocket of the pant in pursuance to the disclosure statement. The story put forth by the prosecution is doubtful for the reason that it is not expected of an State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.57 / 64 accused that he would keep the stolen article with him on his person. A sum of Rs. 60/ was recovered from his personal search. Nothing else was recovered from his personal search then how it can be inferred that tops, which was kept by him in the pocket of his pant, was found pursuant to disclosure statement. This creates a doubt about the recovery of tops from the possession of accused Pradeep. Support is drawn from Crl. Appeal No. 902/13 titled as "State of NCT of Delhi v. Amit Sharma & Ors" decided on 4.7.2018 by our own High Court.
96 The testimony of PW17 and 27 shows that on 26.8.2011 they went to village Molsham, Distt. Baghpat, UP and arrested the accused Jai Bhagwan from his house. His personal search and arrest memo Ex. PW17/A and B were prepared. The testimony of PW17 shows that one gold jhumki (tops) was recovered from the possession of accused. The testimony of PW27 shows that accused got recovered one jhumki (tops).
97 The recovery is doubtful. The presence of PW17 at the time of recovery is doubtful. His signature does not find reflection on the arrest memo, personal search memo and recovery memo. No State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.58 / 64 explanation is forthcoming why his signatures are not on all these documents. It has come in the testimony of PW17 that family members and respectables of the village were present. None of them is associated as a witness by PW27 for the reasons best known to him. Further, the story put forth by the prosecution qua the recovery is doubtful. Nothing was recovered in the personal search of the accused. The jhumki was recovered from the left pocket of the pant of the accused. The prosecution has failed to explain why the jhumki was not recovered from the pant when nothing was recovered in his personal search. Moreover, it is not expected of an accused that he will keep the articles with him even after so many days of the occurrence. There is doubt about the recovery of the tops from the possession of the accused. Support is drawn from "State of NCT of Delhi v. Amit Sharma & Ors" (supra).
98 The recovery of the jewellery articles, worn by the deceased and found missing after her murder, is doubtful. No reliance can be placed on the testimony of PW that jewellery articles were recovered from the possession and at the instance of accused. 99 The alleged motive to commit the crime was that State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.59 / 64 accused Sumitra was having alleged illicit relations with accused Parminder. The alleged motive was to eliminate the deceased and not to remove the jewellery articles allegedly worn by the deceased at that time. The removal of jewellery articles and its subsequent recovery are in the zone of doubt.
100 The prosecution has relied upon call detail record of the accused Sumitra, Parminder and Azad in order to show their criminal conspiracy and intention to commit the murder of deceased with the help of coaccused as other circumstantial evidence. 101 The testimony of PW27 shows that he has collected the call detail records of all the family members of the deceased on the basis of which accused Sumitra was arrested and thereafter co accused were arrested.
102 PW29 has proved the record pertaining to mobile numbers. His testimony shows that mobile No. 9310687740 and 7428528631 stands in the name of accused Parminder. Ex. PW29/B and E are the call detail from 1.7.2011 till 20.8.2011. The mobile number No. 9310101336 and 9350801432 stand in the name of accused Azad. Ex. PW29/H and K are the call details from 1.7.2011 State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.60 / 64 till 20.8.2011. The mobile No. 9310820934 stands in the name of Shiv Kumar and Ex. PW29/N are the call details from 1.7.2011 till 20.8.2011. Ex. Pw29/C, F, I, L and O are the certificates u/s 65B of Indian Evidence Act.
103 The testimony of PW19 shows that mobile No. 9210917955 belongs to deceased Kela Devi and Ex.PW19/C are the call details from 1.7.2011 till 20.8.2011. Ex.PW19/E is the certificate u/s 65B of Indian Evidence Act.
104 The prosecution cannot draw any support from the call detail records. The prosecution has not placed on record the call detail records of all the family members of the deceased when these were collected by the police.
105 The charge sheet filed by the prosecution shows that mobile phone bearing no. 7428528631 was used by accused Sumitra. The mobile phone bearing no. 9310687740 was used by accused Parminder, phone numbers 9310101336 and 9350801432 were used by accused Azad. The prosecution has failed to show how the police have come to know about these mobile numbers. The prosecution has to show that the hands were laid on these mobile State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.61 / 64 numbers on the basis of particular call details. No explanation is forthcoming how these numbers were short listed. 106 There is no evidence on the record that accused Sumitra was using the mobile number 7428528631. The record shows that the said mobile number is in the name of accused Parminder. The testimony of PW27 shows that no mobile phone was recovered from accused Sumitra or that accused Parminder has given the said mobile phone to accused Sumitra.
107 There is no evidence on record that accused Sumitra was using the mobile phone with SIM Number 7428528631. There is no call detail records to show that any call on this number was made by any of the family members of the deceased including husband of accused Sumitra. The prosecution has failed to show that the mobile number 7428528631 was in possession and use of accused Sumitra. 108 The call detail records show that number of calls on 10 th and 11th have taken place between numbers i.e. 7428528631, 9310687740, 9310101336 and 9350801432 with the location of Okhla Industrial Area. All these numbers belong to accused Parminder and Azad. There is no evidence that any call from these State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.62 / 64 numbers were made to the mobile phone of accused Sumitra to kill the deceased. There is no evidence on record that accused Jai Bhagwan and Pardeep were with accused Parminder and Azad except the disclosure statements of all the accused. The disclosure statements cannot be pressed into service without any other evidence on record to show that all of them have hatched a criminal conspiracy to kill the deceased. In view of these facts, call detail records of accused Parminder and Azad in no way points out a circumstance towards implication all the accused in the commission of the crime.
109 The prosecution has failed to establish complete chain of events of circumstantial evidence to connect the accused with the commission of crime. The evidence led by the prosecution is not enough to connect the accused with the commission of crime beyond shadow of reasonable doubt.
110 Hence, I have no hesitation to hold that the prosecution has failed to prove its case beyond shadow of reasonable doubt. All the accused are acquitted of the offence charged. 111 The case property i.e. jewellery articles be returned to State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.63 / 64 the rightful owner after the expiry of the period meant for appeal. The other case property be destroyed after the expiry of the period meant for appeal.
112 File be consigned to record room.
Announced in the open court on 1st October, 2018 (SURESH KUMAR GUPTA) ASJ04 & Spl. Judge (NDPS) SouthEast District Saket Courts, New Delhi State v. Sumitra & Ors. SC No. 2273 of 2016 Page No.64 / 64