* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 30.10.2009
% Date of decision : 12.11.2009
+ Crl. A. No. 63 of 1997
SANJAY KUMAR JAIN ... ... ... ... ... ...APPELLANT
Through : Mr. Ujjal Pal Singh &
Mr. Baljeet Singh,
Advocates.
-VERSUS-
STATE ... ... ... ... ... ... ... .RESPONDENT
Through : Mr. Sunil Sharma,
Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether the Reporters of local papers
may be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be
reported in the Digest? No
SANJAY KISHAN KAUL, J.
1. The appellant, Sanjay Kumar Jain, was married to late Smt. Anju Jain (deceased) on 20.02.1990 whereafter they were residing in House No. 2803, Gali No. 6, Chander Puri, Kailash Nagar, Delhi. It is the case of the prosecution that the deceased was being harassed for Crl. A. No. 63 of 1997 Page No. 1 of 13 insufficient dowry and on 10.04.1991 at 8:50 p.m., a call was received from one Nanak Chand, PW - 1, about the murder of the deceased at the police control room and accordingly D.D. Entry No. 11A was recorded. On reaching the spot, the police party found that SI Budh Sain along with police staff were already present. The premises were found locked from outside. A bunch of keys were provided by the neighbour, Sadhna, PW - 8 and one of the keys fitted in the lock whereupon on climbing to the first floor, where the appellant and deceased were residing, the dead body of the deceased was found lying on the floor. At the scene of the crime, broken bangles were lying and a hair strand was also found on the chest of the deceased. Rukka was sent by making endorsement on the D.D. to the police station and FIR No. 83 of 1991 was accordingly registered (Exhibit PW - 21A). The inquest proceedings were got conducted through the area SDM and the spot was got photographed whereafter the body of the deceased was sent for post-mortem.
2. The post-mortem was conducted by Dr. L.K. Barua, PW -
20, who in his report (Exhibit PW - 20/A) found that there were 10 injuries on the body, which were ante-mortem in nature and the injuries on the neck were opined to have been caused by use of blunt force and rope like material. Some of the injuries were stated to be possible by friction against rough surface. The cause of the death was Crl. A. No. 63 of 1997 Page No. 2 of 13 opined as asphyxia following strangulation by rope like material and the injuries were sufficient to cause death in the ordinary course of nature. The doctor preserved / sealed the cloth, viscera, scalp hair and vaginal swab and handed over to the police for chemical analysis. The parents of the deceased being Mohan Lal, PW - 2 and Raj Bala, PW - 3 made statements to the police about dowry harassment of the deceased. During the course of the investigation, the appellant was arrested on 13.04.1991 whereafter he made a disclosure statement (Exhibit PW - 12/A), which led to the recovery by the police of one cricket wicket and one cotton string, which are stated to be the weapons of crime causing asphyxia. The appellant also got recovered some jewellery items from a pit, which were found missing from the person of the deceased. These ornaments were identified by the parents of the deceased as those belonging to the deceased. The appellant was consequently charged under Section 302 of the Indian Penal Code (for short, „IPC‟) on 18.02.1992 and an alternative charge under Section 304B of the IPC was also framed subsequently on 13.01.1993. The appellant pleaded not guilty and claimed trial.
3. Learned Additional Sessions Judge in terms of the impugned judgment dated 16.01.1997 held the appellant guilty of offences punishable under Section 302 of the IPC and, thus, found no necessity to discuss the Crl. A. No. 63 of 1997 Page No. 3 of 13 alternative charge under Section 304B of the IPC and in terms of the impugned order of sentence dated 20.01.1997 sentenced the appellant to life imprisonment and a fine of Rs.20,000/- and in default of payment to undergo sentence of one year RI.
4. The impugned judgment has considered the testimony of various witnesses including those of the parents of the deceased PW - 2 and PW - 3, who deposed to the complaints by the deceased of the appellant harassing her for insufficient dowry. PW - 2 deposed that he had paid Rs.10,000/- at one time and Rs.15,000/- at the other time to help the appellant in his business but the appellant is stated to have come into heavy debt as he could not profitably carry on the tent business whereafter he started harassing the deceased. On being informed of the murder of his daughter, he rushed to the house alone where he found his daughter lying on the first floor of the house and the ornaments were missing, which were subsequently recovered by the police. The articles were identified as those of the deceased subsequently by PW -
3. The testimony of PW - 3 is also on the same lines.
5. Ms. Sadhna, PW - 8, was residing with her family in house No. 9/2803 and there is stated to be only one house between her house and the house of the appellant. On the fateful day at about 7.00 p.m., she heard some noise and came out of her house when Baldev, PW - 12, the younger brother of the appellant approached her with a Crl. A. No. 63 of 1997 Page No. 4 of 13 request for keys from her house to the staircase leading to the first floor of the house as his knocks at the door were eliciting no response. It is from one of those keys that the door of the ground floor was opened whereafter on first floor, the deceased was found lying dead. PW - 12 became hostile.
6. PW - 4, 5 and 6 were independent witnesses, out of which PW - 6 turned hostile. PW - 4 joined the investigation at the instance of the police when the appellant was arrested. The lock of the gate of the house was opened by the appellant with a key from his pocket which lock and key were seized and were taken into possession vide memo Exhibit PW - 4/A. He has also deposed to the recovery of the cricket wicket and rope at the behest of the appellant, which were seized vide memo Exhibit PW - 4/C. The witness has deposed that the appellant led to across the railway line near the temple and got recovered the ear-ring, ring and nose-pin, which were wrapped in a piece of paper and buried in a pit and these articles were also seized vide memo Exhibit PW - 4/D. The witness has further deposed that two hairs of the appellant after uprooting the same from the head were taken possession vide memo Exhibit PW - 4/E. The witness also stated that PW - 5, Sukhmal Chand was known to him earlier. PW - 5 had also joined the police party and deposed on similar lines as PW - 4. ACP, Ravi Crl. A. No. 63 of 1997 Page No. 5 of 13 Dutt, PW - 22 is the I.O., who had gone to the site of the crime and had interrogated the appellant.
7. PW - 20, the doctor on being shown the cricket wicket (stump) and the rope opined that the ligature marks found on the deceased could be possible with the same. The wounds, thus, stated to have been caused by rolling of the wicket on the neck. The doctor also opined that the string was of sufficient strength as it had been put to strict test.
8. A perusal of the impugned judgment shows that the case of the defence was that the deceased had been murdered by some other persons and the police could not work out the murder and arrest the real culprits and had, therefore, framed the appellant. The learned Additional Sessions Judge found the testimony of PW - 8 reliable. The said witness had come out and handed over the bunch of keys at the behest of the brother of the appellant, PW - 12. Learned Additional Sessions Judge has taken into consideration the MLC (Exhibit PW - 14A) of the appellant. The appellant had been taken for medical examination on 13.04.1991. The medical report shows the following injuries :-
"1. Scratch mark over Rt. knee and Lt. knee joint (Brown coloured)
2. One small bruise (blackish red) over exterior aspect of Lt. wrist joint.
3. One scratch mark (pin point) reddish over radial margin of Rt. thumb.
4. Linear 2 - 3 pinkish bruise, 5 - 6 cms below Rt. inperscapular region.
Crl. A. No. 63 of 1997 Page No. 6 of 13
5. Small irregular 1 - 2 pinkish bruise over Lt. scapular region."
9. The appellant gave no explanation as to how these injuries had been caused or where he did receive them. The injuries are mainly on the hands and knees and, thus, the trial court found that they directly tallied with the injuries on the neck portion of the deceased strengthening the case of the prosecution that the deceased had been strangulated by the appellant.
10. In a nutshell, the following factors were found by the trial court for believing the story of the prosecution in convicting the appellant :-
(i) The deceased had suffered injuries mentioned in the post-mortem report (Exhibit PW - 20/A) caused by use of cotton string and cricket wicket (stump).
(ii) The cotton string and cricket wicket (stump) were got recovered by the appellant.
(iii) The deceased had been in the habit of wearing ornaments in the ears, nose and fingers, which were found missing from her dead body, which were got recovered by the appellant from a pit.
(iv) The place of recovery was not directly accessible to any other public person and the appellant had special knowledge of where he had placed the ornaments in a pit.
(v) The premises had been found locked and had been accessed through the key provided by the appellant from his pocket and access through staircase was found bolted from inside, thus, the premises had been locked from outside and no one else except the appellant could have access to the premises.
(vi) The appellant had absconded from 10.04.1991 to 13.04.1991 till he was arrested.
(vii) Injuries found on the body of the appellant as per MLC (Exhibit PW - 14/A), which were Crl. A. No. 63 of 1997 Page No. 7 of 13 unexplained by the appellant at any stage including in the statement under Section 313 of the Code of Criminal Procedure (for short, „Cr.P.C‟).
(viii) Injuries on the appellant tallied with the nature of injuries and the manner of causing death to the deceased.
11. Learned counsel for the appellant sought to assail the judgment, once again pleading that the appellant was being fixed for a crime which had been unsolved. The weapon of the crime was stated to be a rope, yet no rope like material was found on the aberrations on the neck and at other places, no sign of rope was found. The said plea can be straightaway negated on account of the testimony of PW - 20 that the nature of rope used was such that it did not leave any mark on the neck. Not only that the rope was recovered at the behest of the appellant and in such a situation, at best, it can be said that the appellant had got recovered another rope. The testimony of PW - 20 does establish that the wicket was certainly an instrument used for the crime by rolling it on the neck and ultimately causing asphyxia, the body of the deceased was found lying on the floor and the asphyxia was caused by strangulation at the neck whether by using hand, rope or the wicket. No doubt, as noticed above, the rope shown by the prosecution was eight inches long, but then if a person is lying on the floor, the rope can be pressed on the neck.
12. Learned counsel for the appellant also makes a grievance of no finger prints being taken from the piece of the Crl. A. No. 63 of 1997 Page No. 8 of 13 wicket and no report being made available of the hair taken from the chest of the deceased as compared to the hair from the scalp of the appellant. The DNA report had not been filed in this behalf. In our considered view, this fact itself cannot belie the story of the prosecution though the availability of the DNA report would have strengthened the prosecution story.
13. Learned counsel also sought to explain the injuries on the person of the appellant by claiming that they were not connected with the crime, but failed to give any explanation as to why the appellant had not come forth to give the reason and place of those injuries.
14. Learned counsel also seeks to make a grievance about not taking into possession the key used earlier and the non-production of Om Prakash from whom the father of the deceased is alleged to have taken a loan to pay to the appellant. The receipt for the purchase of jewellery items is stated also not to be brought on record. In a nutshell, it is pleaded that there is no link or chain complete in the present case, which could give rise to conviction.
15. Learned counsel also seeks to throw doubts on the recoveries made through the appellant and submits that in view of the observations of the Supreme Court in Devinder Singh & Ors. V. State of Himachal Pradesh, (2003) 11 SCC 488 where the recovery is doubtful, no reliance can be placed on the same. Learned counsel Crl. A. No. 63 of 1997 Page No. 9 of 13 has also relied upon the observations of the Supreme Court in Lakhwinder Singh V. State of Punjab, (2002) 10 SCC 295 to the effect that failure of the prosecution to explain the injuries on the accused leads to the inference that the prosecution has not disclosed the true genesis and the manner of occurrence.
16. Learned APP for the State has, of course, defended the impugned judgment.
17. On examination of the rival submissions, we find that it is not in dispute that the present case is one of homicide. The only question is as to who is responsible for the homicide - the appellant or some person, who has not been apprehended and the crime not solved. The plea of the defence is that it is the case of an unsolved crime for which the appellant has been roped in by the police. To appreciate the plea, the circumstances surrounding the crime have to be taken note of.
18. The testimony of PW - 2 and PW - 3 cannot be doubted as they have withstood the cross-examination. The fact that there was some tension arising from monetary matters between the appellant and the deceased is, thus, established. PW - 2 has deposed to the appellant‟s suffering losses in the business which he had started of tent property and for which, the said witnesses had also given some assistance.
19. If the scene of the crime is carefully analysed, it is obvious that there was no get-away passage for a third Crl. A. No. 63 of 1997 Page No. 10 of 13 person to have committed the crime and disappear from the scene. The main access was found locked for which the key was provided by the appellant. The other access through the staircase was found bolted from inside. Thus, the appellant alone had an access to the place of occurrence, which factor itself is sufficient to prove his guilt. The appellant has given no cogent reason for disappearing from the scene for three days till he was apprehended. A person, who has lost his wife, would not make himself unavailable for three days without any reason. It is on the apprehension of the appellant that the recoveries had been made including the cricket wicket (stump) and the rope. There can be some doubt arising from the length of the rope, but then these are recoveries made through the appellant of what instruments he used in the crime. The doctor, PW - 20 has deposed about the nature of injuries on the neck, which could have been caused by rolling of the wicket. It is obvious that the murderer used force by climbing on the chest of the deceased and strangulating her neck. The deceased would naturally struggle and resist it and consequently there would be injuries or marks on the murderer. The appellant has been found to have a number of injuries as per his MLC (Exhibit PW - 14/A) when he was apprehended.
20. The significance of a statement made under Section 313 of the Cr.P.C. is that once the evidence which has to Crl. A. No. 63 of 1997 Page No. 11 of 13 come against the accused is available, an opportunity is given to the accused to explain his side of the story. This was an opportunity when the appellant could have explained his absence and the injuries on his body. The appellant failed to do so and, thus, there is no explanation forthcoming as to the place and the cause for the injuries found on the appellant. The nature of injuries on the upper part of the body of the appellant tally with the manner of committing the crime.
21. We draw strength from the judgments of the Supreme Court in Dnyaneshwar v. State of Maharashtra, (2007) 10 SCC 445 and Raj Kumar Prasad Tamarkar v. State of Bihar & Anr., (2007) 10 SCC 433 where the Apex Court while dealing with the unnatural death of the wife in a premises to which the outsider may not have any access has held that it is for the husband to explain the ground for unnatural death of his wife. The husband having failed to do so was convicted under Section 302 of the IPC. The factual matrix of these two cases is quite similar to the present one.
22. The deceased being a married lady used to wear ornaments. This fact is deposed by the parents of the deceased. The deceased was found without any jewellery. The jewellery items were got recovered by the appellant and were identified by the parents of the deceased as those belonging to the deceased. The place of recovery being a pit was also such that it was not open Crl. A. No. 63 of 1997 Page No. 12 of 13 to everyone and the appellant knew the exact place where these jewellery items had been buried.
23. In our considered view, the chain is complete insofar as the nature of crime is concerned. The trial court has rightly taken into account the manner of commission of crime and the surrounding circumstances to convict the appellant. We would once again refer to paragraph 10 hereinabove where the sequence has been set out by us of the rationale of the trial court convicting the appellant. If these points are read in toto, there is no break in the chain or infirmity in the investigation, which does not fix the responsibility of the crime at the door of the appellant. We have no hesitation in coming to the conclusion that the prosecution has proved the case against the appellant beyond all reasonable doubt of having committed the murder of his wife and the impugned judgment of conviction and sentence suffer from no infirmity.
24. We accordingly dismiss the appeal and direct the appellant to surrender before the trial court within three days to undergo the remaining sentence.
SANJAY KISHAN KAUL, J.
NOVEMBER 12, 2009 AJIT BHARIHOKE, J.
madan
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