Delhi High Court
Ramesh @ Ramoo vs State on 22 July, 2008
Author: Rajiv Shakdher
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. Appeal No. 610/2001
% Judgment reserved on : 30.04.2008
Date of Pronouncement : 22.07.2008
RAMESH @ RAMOO ..... Appellant
Through : Ms.Charu Verma,
Advocate
versus
STATE ..... Respondent
Through : Ms. Richa Kapoor, APP
CORAM :
Hon'ble Mr. Justice B N Chaturvedi
Hon'ble Mr. Justice Rajiv Shakdher
1. Whether the Reporters of local papers may
be allowed to see the judgment ?
2. To be referred to Reporters or not ?
3. Whether the judgment should be reported
in the Digest ?
Rajiv Shakdher, J.
1. This is an Appeal under Section 374 (2) of the
Criminal Procedure Code (hereinafter referred to in short as „Cr P
C‟) against the judgment dated 26.2.2001 and sentence dated
26.2.2001 passed by the Additional Sessions Judge Shri
R.L.Chugh, Karkardooma Court, Shahadra, Delhi (hereinafter
Criminal Appeal No. 610 of 2001 1 of 29
referred to in short as the 'Trial Court'). The Appellant has been
convicted under Section 302 of Indian Penal Code (in short 'IPC‟)
and has been sentenced to imprisonment for life and a fine of
Rs.1,000/-. In default of payment of fine, the Appellant is
required to undergo a further simple imprisonment for one
month.
2. Before we deal with submissions made and issues
raised in the Appeal it would be important to detail out the case
set up by the prosecution.
3. On 30.4.2000 police received information that one
Smt Rajan wife of the Appellant i.e Ramesh alias Ramoo residing
in House No. 3/322 Trilok Puri; Delhi (hereinafter referred to in
short as the said premises) had been murdered.
4. Based on the information received the duty officer
concerned at Police Station Kalyan Puri recorded a daily diary
entry (DD) no.26A. A copy of the said DD entry 26A was handed
over to the sub-Inspector Janki Prasad for investigation. The sub-
Inspector Janki Prasad alongwith two Constables reached the
said premises where the Appellant was residing with his wife,
Smt Rajan i.e the deceased.
Criminal Appeal No. 610 of 2001 2 of 29
5. On receipt of information the concerned Station
House Officer Inspector Shri Virender Kumar also reached the
spot. There they found the dead body of the victim Smt Rajan
wife of the Appellant. The body was found lying on a cot on the
first floor of the said premises. A prima facie examination of the
dead body revealed that the victim had sustained an injury on
the head. Blood was found on the ground beneath the cot on
which the body was found, on the same side towards which the
head of the victim was rested. Bruises were also found on the
neck of the deceased which had turned bluish. Based on the
statement of the father of the deceased Smt Rajan, an FIR was
registered on 30.4.2000 at about 9.30 am.
6. Consequently, investigation was carried out which
ultimately led to the Appellant being charged on 22.9.2000. The
charge framed against the Appellant reads as follows:-
"That on the night intervening 29/30-4-2000, at the
roof of your H.No.3/322, Trilok Puri, Delhi within the
jurisdiction of PS Kalyan Puri you committed
murder by intentionally causing death of your wife
Smt Rajan and thereby committed an offence
punishable U/s 302 IPC and within the cognizance
of this court."
7. Before the Trial Court the prosecution examined
fifteen (15) witnesses, while the defense examined one (1)
Criminal Appeal No. 610 of 2001 3 of 29
witness. After recording the evidence of the various witnesses
and upon perusal of the same and after hearing submissions of
the counsel for the State, as well as, the Appellant the Trial Court
came to the conclusion that based on circumstantial evidence
the prosecution had been able to establish beyond reasonable
doubt that the Appellant was guilty of the offence charged with
and that there was no other hypothesis of the innocence of the
Appellant/accused plausible. The Appellant was, thus, held guilty
of committing an offence under Section 302 of IPC and
sentenced accordingly.
8. Aggrieved by the judgment of the Trial Court, an
Appeal under Section 374(2) of the Cr.P.C has been preferred in
this Court. In support of the Appeal the counsel for the Appellant
Ms.Charu Verma has contended as follows:
(i) that there being no eye witness to the murder of the
Appellant‟s wife, the entire case is based on
circumstantial evidence. The law with respect to
conviction based on circumstantial evidence is well
settled; which is, that it requires the Court to look
at various facts and circumstances as links in a
chain which lead to only one conclusion, that is, to
Criminal Appeal No. 610 of 2001 4 of 29
the guilt of the accused, and offer no other
explainable theory or hypothesis pointing to
innocence of the accused. The learned counsel
submitted that a close scrutiny of the testimony of
the witnesses of the prosecution and evidence
placed on record would show that there are several
major contradictions and inconsistencies, which
when, taken together could not have led to the
conclusion that the Appellant was guilty of an
offence as charged.
(ii) To buttress the aforesaid submission, the learned
counsel for the Appellant referred to the following
contradictions and inconsistencies which,
according to her would impact the final conclusion
of guilt arrived at by the Trial Court:-
(a) the father of the victim Smt Rajan i.e Nathi (PW4)
has contradicted most of his deposition given in
chief when cross examined by the counsel for the
defence, in particular, his denial of the alleged
threat met out by the Appellant/accused on
28.4.2000 to the effect "YA TO RAJAN KO SAMJHA
Criminal Appeal No. 610 of 2001 5 of 29
DO VARNA ME USE KHATAM KAR DOONGA";
(b) daily diary (DD) Entry No.2A which was preceded
by daily diary (DD) Entry No.26A is ante timed and
fabricated for the reason that it is neither in
seriatum nor is the time recorded in the said daily
diary (DD) entry No. 2A. Resultantly, it is not known
as to whether DD No.2A was recorded in the
morning at 7.05 am as per the prosecution‟s case
or during later part of the day, and;
(c) the forensic report which is Ex.PW14/2A clearly
opines that no blood was found on the axe which
allegedly is the weapon which was used in inflicting
head injury on the victim;
(iii) there was no motive established for murder of the
deceased Smt. Rajan by the Appellant nor was the
Appellant present on the roof of the premises
where the murder of the deceased took place. In
support of her submission the learned counsel for
the Appellant placed reliance also on the testimony
of Smt Daya (DW1), the sister-in-law of the
Appellant. The particular part of the testimony
Criminal Appeal No. 610 of 2001 6 of 29
which is relied upon is where Smt Daya (DW1) has
stated to have said that the Appellant and
deceased occasionally had fights between
themselves, as usually happens between a
husband and wife; and also to her deposition to the
effect that the Appellant alongwith her husband
and herself was at the relevant time sleeping on
the ground floor, while the victim Smt Rajan was
sleeping alone on the roof of the said premises;
(iv) the duty officer and the investigating officer made
no attempt to locate or identify the person who is
said to have informed the Police Station at Kalyan
Puri about the alleged incident of murder;
(v) and lastly, despite the fact that the murder had
taken place in a locality which had large number of
residents no attempt whatsoever was made in
involving independent public witnesses to the
seizure made.
9. In the background of the submissions made, it would
be important to closely examine the case of the prosecution in
Criminal Appeal No. 610 of 2001 7 of 29
the light of the testimony of witnesses and other evidence relied
upon to ascertain the truthfulness, the veracity and reliability of
the same to know whether the prosecution has been able to
establish the guilt of the Appellant beyond reasonable doubt.
10. The case of the prosecution is that the relationship
between the Appellant and his wife had deteriorated over a
period of time. Resultantly, they quarreled quite often between
themselves. One such domestic quarrel which took place on
28.04.2000 compelled the deceased Smt Rajan to leave her
house for her parent‟s house. The Appellant shortly thereafter
followed the deceased Rajan to the house of her parents. On
arriving there the Appellant in the presence of her father Shri
Nathi (PW4) and her brothers Shri Ramesh (PW11) and Shri
Suresh (PW12) threatened the deceased. It is alleged that the
Appellant is stated to have uttered the following threat „Ya to
Rajan ko samjha do, nahi to me use khatam ker dunga' . It is the
case of the prosecution that in the early hours of 30.04.2000 the
Appellant and his wife, Smt Rajan were once again engaged in
an altercation which resulted in the Appellant using an axe to
inflict the injuries on the head of the victim. Smt Rajan was
finally done to death by the manual strangulation by the
Criminal Appeal No. 610 of 2001 8 of 29
Appellant.
The Prosecution with the permission of the Court, cross
examined Shri Nathi, (PW4) wherein he deposed to the effect
that there were differences between the deceased and the
Accused / Appellant and specifically referred to the threat held
out by the Appellant to the deceased „Ya to Rajan ko samjha do,
nahi to mai use khatam ker dunga'.
11. The prosecution in order to establish its case relied
upon the testimony of fifteen (15) witnesses. Out of said
witnesses the testimony of the following witnesses being crucial
to the case are particularly relied upon:-
Shri Nathi (PW4) i.e. father of the victim Smt. Rajan
deposed that there were differences between the Appellant and
the deceased Smt Rajan with regard to the family issues and
house construction. He further went on to say that on account of
quarrel between the Appellant and his daughter, she arrived at
his house on 28.04.2000 alongwith her children, who were
shortly followed by the Appellant with an axe in his hand. He
states in his deposition that after some heated exchange,
tempers cooled down, whereupon both the Appellant and
deceased returned to their house. He also deposed that at about
Criminal Appeal No. 610 of 2001 9 of 29
7.00am in the morning, on 30.04.2000, he was informed by a
neighbour of the Appellant, that the Appellant had murdered his
daughter. He further deposed that he alongwith his wife and his
sons Shri Suresh and Shri Ramesh went to the house of the
Appellant where, on the roof of the house he saw his daughter
lying dead on the cot with injury marks on her head and bruises
on her neck, below the chin.
12. The prosecution further relied upon the testimony of
the brothers of deceased Shri Ramesh (PW11) and Shri Suresh
(PW12) to establish that there were differences between the
Appellant and his wife i.e deceased. The brothers also reiterated
the fact that they received the information of the murder of their
sister through a neighbour of the Appellant at about 7.00 am on
30.04.2000, whereupon they visited the said premises where
they found the dead body of their sister lying on a cot with injury
on her head and bluish mark on her neck below the chin and the
blood splattered on the floor.
13. The other important witness from the point of view of
issues raised in the Appeal is Head Constable (HC) Kashmiri Lal
(PW7) who was present at Police Station Kalyan Puri on
29.04.2000 from 12.00 pm till 8.00am on 30.04.2000. In his
Criminal Appeal No. 610 of 2001 10 of 29
testimony HC Kashmiri Lal deposed that at about 6.30am in the
morning he received a telephonic information that a murder had
occurred at the said premises. This information was recorded
by him as (DD) No.26A Ex.PW7/A, which was transmitted to sub-
Inspector, Janaki Parsad who alongwith Constable Lakhu Ram
and Constable Manoj proceeded to the place of occurrence of the
incident. He further deposed that at about 7.05 am, the
Appellant came to the Police Station holding an Axe and
informed him that he had murdered his wife Smt. Rajan and that
he had therefore, decided to surrender. In his deposition he
further stated that after measuring the axe he sealed the same
and handed over to Constable Surat Singh, while the accused /
Appellant was taken into custody by Constable Kashmir Singh.
This factum was recorded in DD No. 2A which is Ex.PW7/B. In
his cross examination he denied the suggestion that DD entry
no. 2A was back dated or fabricated. He denied the suggestion
that because DD entry no. 2A did not disclose the time recorded
hence, it was fabricated. He, however, maintained that DD entry
No. 2A was recorded in the morning. He further deposed that
upon surrender of Appellant at the Police Station, he informed
the Station House Officer, Inspector Virender Kumar. He also
Criminal Appeal No. 610 of 2001 11 of 29
deposed that he was responsible for taking into custody the axe
handed over by the Appellant. He, however, denied the
suggestion made to him in his cross examination that the
signature of Constable Surat Singh on the DD no. 2A were not
appended contemporaneously or that Constable Surat Singh was
not present in the Police Station at the relevant time. He
asserted that both the personal search and the disclosure
statement were recorded by the Investigating Officer. He denied
the suggestion that the accused had not surrendered or not
made a confessional statement to the Police or that the
Appellant and his brother were brought to the Police Station by
the Investigating Officer in connivance with the father of the
deceased Shri Nathi (PW4). He categorically denied the fact that
the axe was handed over by the father of the victim Nathi and
the same was planted.
14. The Post Mortem on the deceased was conducted by
Dr. Ashok Jaiswal, (PW1) who proved the Post Mortem report
which is marked as Ex.PW1/A. In his testimony he detailed out
the fact there were external injuries, in particular, there was a
wound on the head which on internal examination revealed
"blood under the scalp tissue on frontal and right occipital
Criminal Appeal No. 610 of 2001 12 of 29
parietal region with contusion and depressed fracture of frontal
bone over an area 3 x 2 inches......" He also deposed that the
external injuries were ante mortem and at least four injury marks
were caused with application of a blunt object. He deposed that
abrasions were found below the chin; oval shaped bruise was
found on the left side of the neck below the angle of mandible
with abrasion on the right sub mandibular region. In the opinion
of Dr.Ashok Jaiswal (PW1) the cause of death was asphyxia on
account of manual strangulation; which, according to him, had
occurred thirty six (36) hours prior to the date and time of the
post mortem.
15. The prosecution also examined both Investigating
Officers i.e sub-Inspector Janaki Parsad (PW13) and Inspector,
Prem Singh (PW14). Sub-Inspector Janaki Parsad (PW13)
deposed that on receipt of DD no. 2A he alongwith Constable
Lakhu Ram and Constable Manoj went to the crime scene where
they found the dead body of Smt Rajan lying on the cot with
head injury and bluish mark on neck with blood splattered on the
floor below the cot. He also deposed that the Station House
Officer (SHO), Inspector, Virender Kumar recorded the statement
of Complainant Shri Nathi and sent the requisite information
Criminal Appeal No. 610 of 2001 13 of 29
alongwith Constable Manoj Kumar for registration of the case.
He also deposed that a Photographer was also sent for who on
arriving at the crime scene took the necessary photographs. In
his deposition he stated that the samples of earth were lifted
from the floor and it was sealed and seized. He further deposed
that both the personal search of the accused as well as his
disclosure statement were carried out in his presence and bear
his signatures. He has further deposed that after the Post
Mortem carried out on 01.05.2000, the body was handed over to
the relatives of the deceased and that parcel containing the
clothes of the deceased, as well as, blood sample of the
deceased was sealed vide memo which is marked Ex.PW10/A
and the same were deposited in Malkhana. He has also deposed
that thereafter the investigation was handed over to the
Inspector Prem Singh (PW14). In his cross examination he
affirmed the case of the prosecution that after completing the
investigation on the spot, when he reached the Police Station he
came to know that the Appellant had surrendered at the Police
Station. He confirmed that the accused was thereafter arrested
by the Investigating Officer. He has also deposed in his cross
examination that the personal search of the Appellant was
Criminal Appeal No. 610 of 2001 14 of 29
conducted in his presence and that of the brother of the
Appellant. He confirmed that both his signatures and that of the
Appellant were taken on the personal search memo. He denied
in cross-examination the suggestion that the personal search
was not conducted in his presence or that his signature on the
memo were ante timed.
16. Inspector Prem Singh (PW14) deposed that on
02.05.2008 he was posted at Police Station Kalyan Puri as
Station House Officer and that he conducted the investigation
thereon. He has also deposed to the effect that on 13.07.2000
he alongwith SI Mukesh Jain visited the site of the crime where
he prepared rough notes, and measurement were taken by him
alongwith SI Janaki Parsad (PW13). He further deposed that he
collected the Post Mortem Report Ex.PW1/A and he further sent
the case property and the exhibits to the Central Forensic
Scientific Laboratory (in short CFSL), Calcutta through Constable
Raj Kumar vide RC No. 83/21. He confirmed in his deposition
that the said CFSL Report and case property were received back
which are marked Ex.PW14/A and Ex.PW14/B.
17. The Appellant in his statement under Section 313 Cr.
P C admitted in response to the question that when in point of
Criminal Appeal No. 610 of 2001 15 of 29
time the Investigating Officer, sub-Inspector Janaki Parsad
alongwith Constable Lakhu Ram and Constable Manoj visited the
spot and they found the dead body of Smt Rajan on the first floor
of the said house. The accused / Appellant thus admitted the fact
that the body was lying on the first floor of the said premises.
18. Having perused the evidence on record, to our mind,
the essential ingredients of an offence of murder, though based
on circumstantial evidence are clearly established. The
circumstance which instigated the Appellant to commit the
brutal murder is clearly established from the testimony of the
father of the PW4 (i.e. Shri Nathi) and brothers Shri Ramesh
(PW11) and Shri Suresh (PW12). The close scrutiny of the
testimony of said witnesses clearly establishes the fact that:-
(i) acrimony had set in, in the relationship, between the
Appellant and his deceased wife, Smt Rajan
(ii) proximate to the date and time of death, a quarrel took
place between the Appellant and the deceased Smt Rajan, on
28.4.2000 which compelled Smt Rajan to visit her parental home
(iii) on said date 28.4.2000 Appellant followed Smt Rajan with
an axe in hand, to her parental home, where they quarreled once
Criminal Appeal No. 610 of 2001 16 of 29
again and after tempers had cooled down returned home.
19. In order to examine whether or not there are any
major variations or contradictions in Shri Nathi (PW4) deposition,
his examination-in-chief, as well as, his cross-examination when
confronted with his statement made under Section 161 of Cr P C
was closely scrutinised. A close perusal of the deposition of Shri
Nathi (PW4) in substance establishes that there were no material
variations or inconsistency in his stand. It is however, a fact that
in his cross examination, the witness Shri Nathi (PW4) when
confronted with the statement made under Section 161 Cr P C,
clearly stated that he had not told the police that the Appellant
had met out the aforementioned specific threat i.e "Ya to Rajan
ko samjha do, nahi to mai use khatam ker dung". He went on to
say that these words were inserted by the Investigating Officer.
He further deposed that he had wrongly affirmed the same when
Learned Public Prosecutor had carried out his cross examination
with the permission of the Court. The point to be noted is that he
had, however, reiterated in the cross examination by the
defence that the deceased alongwith the Appellant had come to
his house with axe at 4.00 to 5.00 pm on 28.4.2000 and at that
point of time, his sons Shri Ramesh and Shri Suresh were also
Criminal Appeal No. 610 of 2001 17 of 29
present in his house. He reiterated the fact, in his cross
examination, that his daughter Rajan had come to his house on
28.04.2000 at about 4.00 - 5.00 pm after being involved in a
quarrel with her husband. He flatly denied the suggestion made
to him in the cross examination that because he was fed up of
the quarrel between his daughter and the Appellant, and in order
to teach the Appellant a lesson, he had concocted a story to
falsely implicate the Appellant in the case, or that he had
planted the axe in connivance with the Police to implicate the
Appellant.
20. To our mind the substratum of the testimony of Shri
Nathi (PW4) remains unaltered which is further substantiated by
the testimony of the brothers of the deceased Shri Ramesh and
Shri Suresh. The fact that a specific threat to the effect „YA TO
RAJAN KO SAMJHA DO VARNA ME USE KHATAM KAR DOONGA‟
had not been made to our mind would not alter the fact that the
relationship between the Appellant and the deceased had turned
sour and bitter, and had attained ominous signs with Appellant
following the deceased Rajan to her parental house with an axe
on 28.4.2000. What seems to be clearly established is that there
was a quarrel between the Appellant and his wife on 28.04.2000
Criminal Appeal No. 610 of 2001 18 of 29
which resulted in the Appellant visiting the house of Shri Nathi
(PW4). This version of the events of 28.04.2000 are corroborated
by the testimony of sons of Shri Nathi, namely, Shri Ramesh
(PW11) and Shri Suresh (PW12) being PW11 & PW12
respectively. As a matter of fact, even Smt. Daya (DW1) has
also referred to differences between the Appellant with his wife,
even though she had labeled them as those which were not out
of the ordinary.
21. The submission of the learned counsel for the
Appellant that there were inconsistencies and contradictions in
the deposition of the star witness of the prosecution, Shri Nathi
(PW4) is thus untenable, for the reason, as long as the core and
the substratum of the deposition of the witness remains
unaltered, it will have to be accepted. As noted above, in the
instant case the essence of Shri Nathi‟s (PW4) deposition, that is,
that the Appellant and the deceased often quarreled; and as to
what transpired on 28.4.2000 has been further corroborated by
the deposition of Shri Ramesh (PW11) and Shri Suresh (PW12)
leaves no doubt in our mind that no one else but the Appellant
had the necessary motive to do away with Smt Rajan.
22. The other submission of the learned counsel for
Criminal Appeal No. 610 of 2001 19 of 29
Appellant that the DD entry No. 2A Ex.PW7/B was not recorded in
the morning as claimed by prosecution does not to our mind
have much substance. The reason being that at some stage the
events of the previous day had to be brought to a close and
hence, the explanation of the prosecution that the entry for the
next day, bore a different number would not by itself to our mind
prove that it is fabricated.
23. This bring us to the submissions of the learned
counsel for the appellant that since no blood was found on the
axe as per the CFSL Report this is indicative of the fact that it
was a planted. First and the foremost aspect to be noted is that
it is no one‟s case that the deceased had not suffered injuries on
her person or that the body of the deceased with injuries was not
found lying on the cot on the roof of the said premises. The fact
that the injury on the head was suffered by use of blunt object
and that the cause of death is manual strangulation is
established by virtue of testimony of Dr Ashok Jaiswal (PW1).
The fact that the CFSL report did not indicate that there was
blood on the axe, in our opinion, would not help the Appellant.
The best that could be stated in favour of the Appellant is that
perhaps the axe which was seized by the Police is not the object
Criminal Appeal No. 610 of 2001 20 of 29
which caused the injury on the head. Death in this case as
opined by Dr.Ashok Jaiswal (PW1) was due to asphyxia brought
about by manual strangulation.
24. Moving to the other submission of the learned counsel
for the Appellant that there was no motive established and that a
domestic quarrel could not be a motive for the crime. Whether a
domestic quarrel can be a motive for committing a crime is
dependent upon deposition of the perpetrator of this crime.
There are those who deal with interpersonal differences in a
calm and collected manner while there are others who take to
violence to resolve differences or even to vindicate a perceived
slight. In the present case the quarrel between the Appellant and
his deceased wife, Smt Rajan seemed to be the motive for
commission of the crime which became starkly evident when on
28.4.2000 the Appellant followed his deceased wife to her
parental house with an axe in hand fulminating at the mouth.
The observations of Supreme Court in the case of Supreme Court
Bahri vs. State of Bihar reported in AIR 1994 SC 2420 at
Page 2430-31; Paragraph 25 apposite. This was the case where
in brief the husband who was one of the accused was charged
with murder of wife and two children. The motive attributed to
Criminal Appeal No. 610 of 2001 21 of 29
him was strained relationship with him because of which the wife
was desirous of leaving him and liquidating the property and
finally migrating to USA where his parents were settled. The
Supreme Court while repelling the submission of the counsel for
the defence that the husband could not have taken the extreme
step of liquidating his family solely on the ground of strained
relationship with the wife observed as follows:-
„..... The argument of the learned counsel for the
appellant that even if it is accepted that there were
strained relations and serious differences between the
deceased Urshia and the appellant Suresh Bahri, his
mother Santosh and maternal uncle, Y D Arya, yet
Suresh would not go to the extent of hatching a
conspiracy and actually killing his wife and the two
children does not appeal to us and we are not at all
convinced by this argument because different persons
react differently under given circumstances. It is
difficult to lay down a hard and fast rule as to how and
in what manner a person would react and to achieve
his motive could to what extent in the commission of
crime under a particular circumstance. It is not
possible to measure up the extent of his feelings,
sentiments and desire and say as to what compelled
him to commit a particular crime. There may be
persons who under frustration and on mere trifling
domestic matter take decision to commit a serious
crime, while others may approach it with cool and
claim mind and think more dispassionately before
taking any hazardous and serious steps. It all depends
as to how a person reacts in a given circumstance and
it is he along who best knows his intention and motive
to commit a crime and the extent thereof.
25. Let us now examine the Appellant‟s contention based
Criminal Appeal No. 610 of 2001 22 of 29
on the testimony of his sole witness Smt Daya (DW1), wife of
his brother Shri Dharampal. Smt Daya (DW1) deposed inter alia
that on the date of the incident Smt Rajan i.e deceased was
sleeping alone, on the roof of the said premises, and that the
Appellant alongwith her husband and herself were sleeping on
the ground floor. The reason given for this unusual behaviour by
Smt Daya (DW1) in her testimony was that, the deceased Smt
Rajan slept on the roof because it was hot, while the others slept
on the ground floor because there were mosquitoes on the roof
and the fact that they had electricity available on that day. Smt
Daya (DW1) further went on to say that at about 2.00 to 2.30 am
in the morning of 30.04.2008, the Police came to their house and
took away the Appellant.
26. The testimony of Smt Daya (DW1) does not inspire
confidence. The fact that the Appellant did not sleep on the roof
in the company of his wife and chose to sleep with his brother
and sister-in-law is tenuous to say the least. Smt Daya‟s (DW1)
deposition that they got to know about the murder of the
deceased Smt Rajan when the Police came to pick up the
Appellant at about 2.00 to 2.30 a.m in the morning on 30.4.2000
is completely incredulous and unbelievable when examined in
Criminal Appeal No. 610 of 2001 23 of 29
the light of the brutality with which the victim Smt Rajan was
done to death.
27. The submission of the learned counsel for the
Appellant that no effort was made by the duty officer of the
Investigating Officer to locate the person who informed the
Police Station at Kalyan Puri about the murder of the deceased
on 30.04.2000 is founded on the testimony of Head Constable
Kashmiri Lal (PW7) who was the duty officer at the Police Station
at the relevant point in time. In his deposition PW7 has stated
that he was on duty at the Police Station from the midnight of
29.4.2000 to 8.00 am on 30.04.2000, and that at 6.30 am on
30.04.2000 he received a call from a unknown person that one
lady was murdered by her husband on the roof of the said
premises.
Head Constable Kashmiri Lal (PW7) was cross examined at
length. There was no suggestion made to him that this part of his
testimony was false. We have no reason to disbelieve the
testimony of PW7 only because he is a witness who is in the
Police force. He has no animus with Appellant and none is
alleged. In that view of the matter to our mind, the fact that the
police did not trace the informer will not help the cause of the
Criminal Appeal No. 610 of 2001 24 of 29
Appellant if otherwise other evidence points a finger in the
direction of the Appellant.
28. That leaves us with the submission of the counsel for
the Appellant which is, that no independent public witnesses
were joined in the investigation. To our mind this attains
importance if we otherwise disbelieve the testimony of the
witnesses produced before us or we find that the evidence
placed before us is otherwise weak. While it may be a
wholesome practice to join general public in criminal
investigation the ground realities may be different. It is well
known that public at large do not wish to get involved in criminal
cases because of the travails of a trial. In this case we find that
the testimonies of Shri Nathi (PW4) the father and the brothers
Ramesh (PW12) and Suresh (PW13) have substantially a ring of
honesty and truth in them. Their testimony cannot be
disregarded merely because no public witnesses were joined in
the investigation. What is of greater importance that the
witnesses should be independent. Merely because the witnesses
are related, his or her testimony cannot be disregarded only
because the testimony relied upon is that of a relative. There is
no such rule of law which requires that a testimony of a relative
Criminal Appeal No. 610 of 2001 25 of 29
of the deceased should be excluded. The observation of the
Supreme Court in the case of Dalip Singh V State of Punjab
reported in AIR 1953 SC 364 at page 366, paragraphs 25 & 26.
The relevant extract read as follows :--
„... 25. We are unable to agree with the learned Judges
of the High Court that the testimony of two eye-
witnesses requires corroboration. If the foundation for
such an observation is based on the fact that the
witnesses are women and that the fate of seven men
hangs on their testimony, we know of no such rule. It
is the grounded on the reason that they are closely
related to the deceased we are unable to concur. This
is a fallacy common to many criminal cases and one
which another Bench of this Court endeavoured to
dispel in - „Rameshwar V State of Rajasthan‟ AIR 1952
SC 54 at page 59 (A). We find, however, that it
unfortunately still persists, if not in the judgments of
the Courts, at any rate in the arguments of counsel.
26. A witness is normally to be considered
independent unless he or she springs from sources
which are likely to be tainted and that usually means
unless the witness has cause, such as enmity against
the accused, to wish to implicate him falsely.
Ordinarily a close relation would be the last to screen
the real culprit and falsely implicate an innocent
person. It is true when feelings run high and there is
personal cause for enmity that there is a tendency to
drag in an innocent person against whom a witness
has a grudge along with the guilty, but foundation
must be laid for such a criticism and the mere fact of
relationship far from being a foundation is often a sure
guarantee of truth. However, we are not attempting
any sweeping generalization. Each case must be
judged on its own facts. Our observations are only
made to combat what is so often put forward in cases
before us as a general rule of prudence. There is no
such general rule. Each case must be limited to and
Criminal Appeal No. 610 of 2001 26 of 29
be governed by its own facts.
29. Also see observation of the Supreme Court in the case
of Masalti v/s State of Uttar Pradesh reported in 1965 SC
202 at page 209 paragraph No. 14. The relevant extract reads
as follows:--
„... 14. Mr. Sawhney has been argued that where
witnesses giving evidence in a murder trial like the
present are shown to belong to the faction of victims,
their evidence should not be accepted, because they
are prone to involve falsely members of the rival
faction our of enmity and partisan feeling. There is no
doubt that when a criminal Court has to be appreciate
evidence given by witnesses who are partisan or
interested, it has to be very careful in weighing such
evidence. Whether or not there are discrepancies in
the evidence; whether or not evidence strikes the
Court as genuine whether or not the story disclosed by
the evidence is probable, are all matters which must
be taken into account. But it would, we think, be
unreasonable to contend that evidence given by the
witnesses should be discarded only the ground that it
is evidence of partisan or interested witnesses. Often
enough, where factions prevail in villages and murders
are committed as result of enmity between such
factions, criminal Courts have to deal with evidence of
a partisan type. The mechanical rejection of such
evidence on the sole ground that it is partisan would
invariably lead to failure of justice. No hard and fast
rule can be laid down as to how much evidence should
be appreciated. Judicial approach has to be cautious in
dealing with such evidence; but the plea that such
evidence should be rejected because it is partisan
cannot be accepted as correct.
Criminal Appeal No. 610 of 2001 27 of 29
30. To sum up, our decision to accept the case of the
prosecution that the Appellant had inflicted the injuries on the
deceased and was responsible for manually strangulating his
wife Smt. Rajan, is based on the following :-
i) there was motive in the form of quarrel which
took place between the deceased and the appellant on
28.04.2000 proximate to the date of murder i.e.
30.04.2000 and given the fact there was souring of
relationship between the Appellant and the deceased
as established the by testimony of PW4, PW11 &
PW12;
ii) the body of the deceased was found on the cot
on the roof of the premises in which the Appellant was
present; a fact accepted by him in his statement under
Section 313 Cr P C;
iii) the injuries and possible cause of death which
stand proved by virtue of the testimony of Dr. Ashok
Jaiswal (PW1) who conducted the postmortem and
opined that the death occurred due to manual
strangulation;
Criminal Appeal No. 610 of 2001 28 of 29
iv) and lastly, given the fact that all other hypothesis
of the innocence of the Appellant stood excluded as
the testimony of DW1 was both unbelievable and
incredulous.
31. Thus, given the state of evidence in the present case
and the fact that it is not the case of the Appellant that he was
not present in the premises on the date of the incident i.e. 29 -
30th April 2000 and also the fact that the body of the deceased
was found in the premises in which he was living with his wife,
we find that there is no infirmity in the conclusion arrived at by
the Trial Court based on the evidence placed before it.
32. In view of the above discussion, the appeal is
dismissed.
RAJIV SHAKDHER, J
B N CHATURVEDI, J
JULY 22, 2008
mb
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