Rajesh Sharma vs State
2009 Latest Caselaw 1720 Del

i.5
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Date of Order: April 28, 2009

+                                  CRL.A. 115/2004

       RAJESH SHARMA                                   ..... Appellant
                Through:            Mr. V.K.Raina, Advocate

                                    versus

       STATE OF DELHI                                 ..... Respondent
                Through:            Mr. Pawan Sharma, Advocate

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE ARUNA SURESH

1. Whether reporters of local papers may be allowed
   to see the judgment?

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest?

: PRADEEP NANDRAJOG, J. (Oral)

1. In terms of the order dated 16.2.2009, since

compilation is ready; appeal being listed for disposal at the end

of „After Notice Miscellaneous Matters‟, we have heard learned

counsel for the parties.

2. Thus, all pending applications are disposed of as

infructuous.

3. Vide impugned judgment and order dated 21.1.2004,

the appellant has been convicted for the offence of having

murdered his wife.

4. Vide order dated 22.1.2004, the appellant has been

sentenced to undergo imprisonment for life and pay a fine of

Rs.5,000/-; in failure of deposit of fine, to undergo RI for 2 years.

5. The reasoning of the learned Trial Judge to convict

the appellant is the non-satisfactory explanation given by the

appellant to the material circumstances appearing against him

when he was examined under Section 313 Cr.P.C. The learned

Trial Judge has also opined that the testimony of PW-12, Om

Prakash Sharma, the father of the appellant was full of

contradictions vis-à-vis attempt made to show that the appellant

who was in the house, having left for some time, and before he

returned to the house some unknown person having murdered

the wife of the appellant. Lastly, the learned Trial Judge has also

relied upon the disclosure statement made by the appellant

pertaining to his knowledge where the weapon of offence i.e.

the kirpan used for the crime was kept; which kirpan was

recovered from a place pointed out by the appellant. Reliance

has also been placed on the report of the serologist who opined

that the kirpan was stained with human blood of group „A‟ i.e.

the same blood group as that of the wife of the appellant.

Further incriminating evidence against the appellant is the

seizure of the vest worn by the appellant at the time of his

arrest which also had human blood of group „A‟.

6. It is urged by learned counsel for the appellant that

the testimony of Om Prakash Sharma PW-12 categorically shows

that the appellant was not in the house when his wife was

murdered and under the circumstances, there being no witness

who has deposed to the contrary, the appellant would be

entitled to an acquittal.

7. The process of law commenced when information

was received at PS Dwarka at 8:35 PM on 20.11.2002, noted

vide DD No.24A, Ex.PW-6/C, to the effect that a woman has been

murdered in House No.H-76, Raj Nagar, Part II, Palam Colony.

8. Inspector Umesh Singh PW-13, then posted as SHO

PS Dwarka was on patrol duty and a wireless message was

flashed to him relaying the information received at the police

station and as recorded vide DD No.24A. He reached the place

where the crime was committed. At the spot he met one Hazari

Lal Gaur, an uncle of the deceased, who told him that he had

reached the matrimonial house of the deceased on receipt of a

telephonic information that Purnima, his niece, had been

murdered by the appellant, who was her husband. He disclosed

that in the past, the appellant used to physically assault the

deceased. His statement Ex.PW-1/A was recorded by Inspector

Umesh Singh. An endorsement Ex.PW-13/A was made thereon

by Inspector Umesh Singh and the statement and the

endorsement were dispatched to the police station at around

11:15 PM for FIR to be registered. Const.Kamaljeet who had

accompanied Inspector Umesh Singh to the place of the

occurrence took the endorsement and the statement to the

police station, where FIR Ex.PW-6/A was recorded.

9. Inspector Umesh Singh prepared the site plan Ex.PW-

13/B. He summoned a photographer who took photographs of

the place of occurrence. Blood sample and earth control were

lifted from the spot vide memo Ex.PW-1/B. The body of the

deceased named Purnima was sent to DDU Hospital where

Dr.Manoj Nagpal conducted the post-mortem and prepared a

post-mortem report Ex.PW-14/A noting thereon the following

undernoted 11 injuries on the person of Purnima:-

"1. Stab wound measuring 0.5 cm from midline on rt. side and 6 cm from rt. nipple - 0.5 x 0.3 cm.

2. A sharp wound 0.5 cm from middle on lt. side and 6 cm from lt. nipple - 0.5 x 0.3 cms.

3. An incised wound 6 cms from injury No.2 and 5.5. cm from lt. nipple - 2.5 x 0.5 cms.

4. A wound 5 cms above lt. nipple and 5 cms from anterior oxillery fold on left. side 2.5 x .5 cm.

5. A wound 5 cm above injury No.4 and 2 cms. above left anterior Oxillery fold - 1.5 x 0.7 cms.

6. One wound 4 cms below lt. shoulder and 6 cm lateral to injury No.5. - 5.5. x 2 cm.

7. Wound 3 cms above left elbow posterior aspect and 11 cms below oxilla measuring 5 x 4 cms.

8. One wound 7 cms below left anterior superior illioc spine and 20 cms lateral to public symphasis - 2.5 x 1 cm.

9. One wound on lateral aspect of left knee 7 cms lateral to left knee and 40 cms above left angle - 9 x 1.5 cms.

10. One wound 13 cm lateral to medially placed on the left side back and 9 cms from imferior angle of scapula 3 x 1.5 cms.

11. Lenier incise wound 7 cms lateral to right side and 12 cms above right clavicale lateral aspect 13 x 1 cm over occipital region."

10. It was opined that the cause of death was

haemorrhagic shock resulting as the cumulative effect of all the

injuries. The clothes of the deceased as also blood sample on a

gauze were handed over to the police as recorded in the seizure

memo Ex.PW-11/A.

11. The appellant was found absconding and was

arrested the next day i.e. on 21.11.2002 at 7:00 PM as recorded

in the arrest memo Ex.PW-13/G.

12. The appellant was interrogated by Inspector Umesh

Singh and his disclosure statement Ex.PW-10/B was recorded, in

which, inter alia, appellant stated that he had hidden the kirpan

used by him to assault his wife at a place behind an almirah in

his house and that he could lead the police to the place and

point out the same.

13. Pursuant to the disclosure statement the

investigating officer took the appellant to his house and in the

house the appellant pointed out the place, as recorded in the

pointing out cum recovery memo Ex.PW-10/A, where he claimed

to have hidden the kirpan. The place was behind an almirah in

the house. Indeed, a kirpan Ex.P-1, was recovered from the said

spot which was seized vide pointing out cum seizure memo

Ex.PW-10/A. After the kirpan was seized, Inspector Umesh Singh

drew the sketch Ex.PW-10/C thereof.

14. The investigating officer noted blood stains on the

vest Ex.P-2 worn by the appellant. The same was seized vide

seizure memo Ex.PW-10/E.

15. The blood stained clothes of the deceased, the blood

sample on a piece of gauze of the deceased, the kirpan Ex.P-1,

the vest of the appellant Ex.P-2, the blood lifted from the place

of occurrence and the control earth were sent to the FSL Delhi

for serological test and as per report Ex.PX it was opined that

the blood group on the gauze cloth piece was „A‟. The clothes of

the deceased gave no reaction. The vest Ex.P-2 and the kirpan

Ex.P-1 reacted showing presence of human blood of group „A‟.

16. The kirpan was sent to Dr.Manoj Nagpal for opinion,

whether the stab injuries noted by him could possibly be caused

by the kirpan in question. He gave a report Ex.PW-14/B to the

effect that the stab injuries could possibly be caused by the

kirpan in question.

17. As noted hereinabove, the learned Trial Judge has

relied upon the disclosure statement of the appellant and the

recovery of the weapon of offence pursuant thereto, as also the

report of the serologist which shows that the blood group of the

deceased was „A‟ and that human blood of same group was

detected on the kirpan as also the vest worn by the appellant

when he was arrested.

18. Indeed, at the hearing of the appeal, learned counsel

for the appellant has not challenged the disclosure statement

made by the appellant and the recovery of the kirpan pursuant

thereto, as also the forensic report. As noted hereinabove,

submission made at hearing of the appeal today is that in view

of the discrepant statements made by the father of the

appellant, he i.e. the appellant is entitled to be acquitted.

19. We have noted hereinabove that the learned Trial

Judge has relied upon the non-satisfactory explanation given by

the appellant when he was examined under Section 313 Cr.P.C.

20. We note the explanation given by the appellant vis-à-

vis the reason for his absence in the house when the offence

took place. He stated as under:-

"I had come from the office. I slept for a while. Then there was a quarrel in the neighbourhood. I woke up

due to commotion. I along with all family members went to see the quarrel. When I came inside I washed my face and then went to take taxi as we wanted to go to attend the marriage of my cousin. When I came back I founder the crowd near my house. I got nervous. I went inside and found that my wife was lying on the floor and blood was oozing out from her hand. I felt her pulse and found that it was working. In order to save her I went to bring taxi and I asked others to take care of my wife. I did not find any taxi at the taxi stand nor I could find any three wheeler. Then I took a rickshaw and arrived at my house. When I was going inside the house from the crossing the police was standing there and they apprehended me in this case. I was taken to the police station. I was kept here for full night. I was not allowed to contact my father. Next day I was made to sign few blank papers. I was taken probably to the office of the SHO where the kirpan was planted upon me. I was asked to hold the kirpan."

21. It is apparent that the appellant admitted having

returned from his office to his house in the evening. The

appellant attempted to prove his being away from the house

with reference to stating that as he had to attend a marriage of

his cousin, he had to take a taxi and that he left to fetch a taxi

and when he returned to the house he got nervous and on

entering the house he saw his wife lying on the floor with blood

oozing from her hand. He stated that he felt her pulse which

was working and in order to save her he went out to bring a taxi.

He stated that when he could not find a taxi he took a rickshaw

and arrived at his house where police apprehended him.

22. On somewhat similar lines has his father PW-12, so

deposed. He deposed that he was living with his son who was

married to the deceased Purnima in house No.H-74, Raj Nagar-II,

Palam Colony and that on 20.11.2002 his son came home at

4:30 PM. As a letter had been received that a marriage had to

take place in the family, he enquired from his son as to what

arrangements had been made to attend the marriage. The

appellant told him that he i.e. the appellant and the deceased

would be attending the marriage which was to take place on

21.11.2002 in village Hatoli, District Mujaffar Nagar. He

deposed that the appellant went to fetch a taxi and when he did

so, a quarrel was going on since 7:00 PM in the adjoining house

i.e. No.H-73 and that the police were already present. His grand

children came home and demanded food. His daughter-in-law

i.e. the deceased was watching the quarrel and came back to

prepare meals. She fed a chapati each to the children who were

watching television. She went back to the kitchen to bring

another chapati but did not return. The children went towards

the kitchen and saw that somebody had murdered their mother.

He deposed that his son i.e. the appellant had also watched the

quarrel nearby. So deposing, when the crux of the testimony

had to surface, as to where exactly the appellant was when his

daughter-in-law was murdered, Om Prakash Sharma, started

making inchoate and inconsistence statements. His further

testimony is being reproduced by us in verbatim. It reads:-

"My son did not go for taking taxi immediately after coming from the office. He was present when quarrel was going on in the nearby house at H-73. He had also taken meals. My son Rajesh was also watching the quarrel along with me and my daughter in law and he had taken meals. Again said that my son after coming from the office had taken tea etc. He thereafter went for taking taxi but did not bring taxi. Accused remained in the house after taking tea in my room upto 6-6.30 PM. At that time quarrel was going on the neighbouring house and sound of quarrel were coming. The outer door of H. No.H73 and H74 are adjoining each other. When they gathered outside H.No. H.73 the crowd was also outside the door. I, my son and my daughter in law were watching quarrel from the door itself, one Sushil Kumar was also tenant in H-74 but he was not present on that day and his room was lying locked. When during quarrel grand children asked for food, Purnima came back inside the house with the children. I also came back into the room. I came back into my room at 7.45 or 7.50 PM. Rajesh told me that he was going. My son did not come back. He was to take taxi from neighbourhood. I did not go to check. When my grandson went to take second chapati, he found his mother in pool of blood.

At 7.50 PM when I came inside Purnima was already inside to cook food for grand children. Both my grand

sons were inside. I closed the outer door of the house and came inside. I did not hear the sound of knocking of outer door after that. My grand children were of very tender age that they could have cause any harm to Purnima. My eldest grand child was 5 and three quarter year old. I did not kill my daughter in law. No outside person came inside the house. Again said there were two doors in our house, one in the back side and other in the front side. The back door also used to remain open and same used to be closed down after cooking meals. After seeking my daughter in law lying murdered in the house I did not go outside to inform the police who had come for tackling the quarrel at H.73 to inform about the murder. Mohala people might have given inf. to police. I did not go to Mohalla people to tell and to call them to see that my daughter in law was lying murdered. I did not go to police or to any neighbourer or to find out my son and inform him that his wife was lying dead. Accd. had come home back at about 8.15 - 8.20 PM when Purnima was lying dead and he saw that Purnima was lying dead. I told him that Purnima was lying dead in pool of blood. Accused left the house after seeing his wife lying murdered. He told that he was going to take taxi. Since he had earlier gone to bring taxi, no taxi had come even earlier. It is wrong to say that accd. after murdering his wife ran away from house after 8.15 - 8.20 PM after murdering his wife."

23. It is apparent that Om Prakash has admitted that his

son had returned home and after taking tea had remained in the

house till about 6:30 PM. He has stated that his son left the

house to fetch a taxi from the neighbourhood and that his

daughter-in-law was murdered at around 7:50 PM. He deposed

that when his son came back at around 8:20 PM, he saw his wife

lying dead and left the house to bring a taxi.

24. It would be of relevance to note that PW-12 has

categorically stated that no outside person came inside their

house.

25. The site plan Ex.PW-9/A shows that house No.H-74

which consists of 5 living rooms, 4 of which are on the North-

Western side of the plot. One room is on the opposite side. In

between is a passage leading to an open space i.e. a „L‟ shape

open space. The kitchen and the bathroom are towards the

North Eastern boundary of the plot. The place where the body

of the deceased was seized by the police is the spot marked „A‟

which is just opposite the kitchen on the open space.

26. For an outsider to stab the deceased outside the

kitchen, would require an entry from the gali (public street)

abutting the kitchen. We note that the father of the appellant

has categorically stated that no outsider had entered the house.

27. The nature of the injuries on the deceased rule out

suicide. Obviously, somebody present in the house has to be

the assassin.

28. We concur with the reasoning of the learned Trial

Judge that the inchoate statements made by the father of the

appellant and the explanation by the appellant when he was

examined under Section 313 Cr.P.C. do not inspire any

confidence, exculpatory of the appellant.

29. The father of the appellant and even the appellant

admit that in the evening, the appellant was in the house. Both

of them justify the absence of the appellant from the house for

an hour, on the plea that a marriage in the family had to take

place, which required a departure from the house in a taxi, and

for said purpose, the appellant left the house to fetch a taxi.

30. If indeed the appellant had left the house to fetch a

taxi, he ought to have returned to the house with a taxi. He and

his father claim that the appellant came back after one hour. It

is sufficient time for any person to find a taxi. Admittedly, the

appellant never brought any taxi to the house. This belies the

version of the appellant and his father that he had left the house

to fetch a taxi, as the same was required to attend a marriage in

the family.

31. The appellant justifies his departure from the house

after, according to him, he saw his wife in an injured condition

so that he could take her to the hospital.

32. If this was so, the appellant ought to have returned, if

not with a taxi, at least a TSR or any other vehicle in which he

could have taken his wife to the hospital. He did not do so.

33. He never returned to the house. He was absconding.

He was arrested, as recorded in the arrest memo Ex.PW-13/G on

21.11.2002 at 7:00 PM from the railway road at Raj Nagar II.

34. We concur with the view taken by the learned Trial

Judge that the evidence on record conclusively establishes the

presence of the appellant in his house when his wife was

murdered and that the appellant absconding and not acting to

rescue his wife by taking her to the hospital reinforces his guilt

i.e. his conduct is indicative of his guilty mind.

35. Linking therewith the post-mortem report, the

opinion of the doctor who conducted the post-mortem, the

disclosure statement of the appellant, the recovery of the kirpan

pursuant to his disclosure statement and the report of the

serologist; the chain of circumstances become complete

wherefrom the only inference possible is the guilt of the

appellant; ruling out his innocence.

36. We find no merit in the appeal in so far the order and

judgment of the conviction is concerned.

37. Pertaining to the sentence imposed, we concur with

the sentence of imprisonment of life as also the imposition of

fine in sum of Rs.5,000/-, but disagree with the alternative

sentence, in default of payment of fine, which as noted

hereinabove, is to undergo rigorous imprisonment for 2 years.

38. While dismissing the appeal and maintaining the

conviction, we modify the order of sentence, in that, direct that

in default of payment of fine in sum of Rs.5,000/- the appellant

shall undergo simple imprisonment for a period of 3 months.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

APRIL 28, 2009 mm