Sunita Grover vs State
2009 Latest Caselaw 2574 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                            Judgment Reserved on: July 8, 2009
%                          Judgment Delivered on: July 13, 2009

+                                CRL.A. 335/2008

       SUNITA GROVER                               ..... Appellant
                           Through:    Mr. Anil Soni, Advocate.

                                 versus

       THE STATE                               ..... Respondent
                           Through:    Mr. Pawan Sharma, APP.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE INDERMEET KAUR

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

     2. To be referred to the Reporter or not?            Yes

     3. Whether the judgment should be reported in the
        Digest?                                   Yes

INDERMEET KAUR, J.

1. Vide impugned judgment and order dated 12.10.2007

appellant Sunita Grover has been convicted for the offence

punishable under Section 302/120-B IPC as also independently for

the substantive offence punishable under Section 120-B IPC. She

has been sentenced to undergo imprisonment for life and to pay a

fine in sum of Rs.5000/- and in default of payment of fine, to

undergo simple imprisonment for three months for the two

offences. Needless to state the sentences have been directed to

run concurrently. The co-accused Om Prakash has been acquitted.

Trial against the third accused Mohd. Shakil @ Pappu has been

separated as he was declared a proclaimed offender.

2. The version of the prosecution as unfolded is that the

appellant Sunita Grover was married with the deceased Kishan Lal

Grover and two children were born to them. Her husband, the

deceased had a petty business of repairing spectacles and was in

the habit of taking liquor. He contributed little to the household

income. To supplement the family income, the appellant used to do

tailoring and stitching work given to her by co-accused Shakil @

Pappu, who was running a tailoring shop. Their relations became

intimate day-by-day. Shakil often used to visit the house of the

appellant and would help her in purchasing household articles; to

the annoyance of her deceased husband, who suspected her of

infidelity qua Shakil. About two and a half months prior to the date

of the incident, the appellant and her deceased husband had

purchased a Janta Flat at Rohini i.e. A-1/116, Sector-17, Rohini for a

sum of Rs.2.5.lacs and Shakil was an active intervener in the

purchase of said property. The lustful relationship between the

appellant and the co-accused Shakil grew with the passage of time.

They i.e. the appellant and Pappu along with co-accused Om

Prakash hatched a conspiracy to get rid of Kishan Lal Grover.

3. As per the conspiracy, on the intervening night of 8/9th July,

2007, the appellant administered sleeping tablets to her husband in

liquor. He went off to sleep. Along with her two children, the

appellant went out of the house and informed her co-accused i.e.

Shakil @ Pappu, who along with his co-worker Om Prakash went into

the house of the deceased and after pressing his mouth gave him a

blow in his chest with an iron press lying nearby; the deceased was

attacked on his head and thereafter with the same instrument he

was struck on his private parts thereby incapacitating him, as a

result of which blood oozed out from his body. He died and a bed

sheet was put upon his body; thereafter the co-accused i.e. Shakil

@ Pappu and Om Prakash fled from the scene. Sunita Grover, the

appellant then entered the house along with her children and slept

inside the house as if everything was normal. On the following

morning, the appellant, as per the plan hatched, went to the house

of her neighbour Gurdyal Mohan PW-8 and told him that her

husband was not rising from his slumber. Gurdyal Mohan came to

her house and saw that her husband was dead and summoned the

police.

4. It is not in dispute that after the police was informed about

Kishan Lal's death and the IO arrived at the house, the statement

Ex.PW-20/A of Sunita Grover was recorded and the FIR in question

was registered on the basis of the said FIR.

5. In her statement Ex.PW-20/A Sunita Grover stated that on the

previous night i.e. in the intervening night of 8/9.7.1998, at about

9.30 p.m. her husband had gone out and came after about half an

hour and went off to sleep. She along with her two children aged

six years and eight months went to sleep on the floor. The house

was securely locked with a lock as also after bolting it from inside

and key of the lock was kept on the fridge. In the morning when

she woke up to heat the milk for her daughter, she noted that blood

was oozing out from her husband's body and he was not responding

to her calls. She informed her neighbour Gurdyal Mohan who came

to the spot and saw that Kishan Lal had already died.

6. On this statement Ex.PW-20/A endorsement Ex.PW-20/B was

made; the rukka was then taken by PW-9 HC Subhash for the

registration of the FIR which was formally registered by PW-1 HC Raj

Bala at 1.35 p.m. on the same day.

7. Investigation was set in motion. The crime team was

summoned and the photographer PW-11 Kuldeep took nine

photographs of the spot, the positives of which were Ex.PW-11/1 to

9.

8. The rough site plan Ex.PW-20/C was prepared at pointing out of

the informant i.e. the appellant Sunita Grover. PW-20 Investigating

Officer, Inspector Ved Prakash collected the blood stained clothing

from the spot which included one pillow, one bed sheet as also one

iron gas stove which was taken in possession vide memo Ex.PW-

10/A. The inquest proceedings were conducted vide proceedings

Ex.PW-20/D.

9. The post-mortem on the deceased body was conducted on

11.7.1998 by PW-13 Dr.K. Goel, who noted five external injuries on

the body of the deceased, which read as under:

"EXTERNAL INJURIES

1.) Right eye ecchymosed and slightly swollen.

2.) Lacerated wound 1.5 x .25 " over right temporal region with bruised margins.

3.) Multiple defused bruises over right elbow.

4.) There was incised wound with ragged margins over suprex- public region extending from above the both inguinal rings running downwards upto the root of penis cutting vessles and nerves of penis, vas and corafora calloaul in total area 10 x 6 cm. There was no bruising over any vital singn at the margins of the wounds or cut structures.

5.) Defused bruising seen all over sacrotum."

10. Internal examination of the patient had also been conducted

and besides bruises noted under the scalp the second and fifth ribs

were found fractured. Testicles were also found bruised. The doctor

had opined the cause of death as cardiac reflex resulting from

testicular injuries and haemothorax resulting from lung injuries.

Injury no. 4 was noted to have been caused after death by a sharp

edged weapon. It was opined that the testicular and lung injuries

were sufficient to cause death individually and collectively in

ordinary course of nature.

11. The dead body was duly identified. Kamal Kishore PW-3 and

his father PW-4 had been examined by the prosecution to establish

that co-accused Pappu @ Shakil was running a tailor shop at Rohini

and he had got a deal struck for the purchase of flat no. A1/116,

Sector 17, Rohini, which had been purchased by the deceased

Kishan Lal and his wife Sunita Grover through the intervention of

Pappu. PW-4 has reiterated this version in court on oath and and

had further stated that later on he came to know that the person

who had purchased this flat, had been murdered.

12. Both these witnesses had established that Pappu @ Shakil

had intervened in this property deal which had led the deceased

Kishan Lal to purchase this flat i.e. A-1/11, Sector 17, Rohini where

the incident had occurred, thereby also establishing the fact that

Pappu @ Shakil was on close terms with the deceased and his

appellant wife.

13. In the course of the investigation, the brother of the

deceased, namely, Nand Kishore Grover PW-19 was examined

wherein he had stated that Sunita Grover had an illicit relationship

with Pappu. Attempt was made to trace out Pappu @ Shakil, who

was found missing from his shop along with his co-worker Om

Prakash since 9.7.1998.

14. This gave a feeler to the Investigating Officer about the

probable involvement of the appellant which led the police party to

her house. The appellant was interrogated and she made her

disclosure statement Ex.PW-18/A on 13.7.1998 admitting her guilt,

pursuant to which she was arrested. She also got recovered one suit

from the bath room of the matrimonial home which was seized vide

Ex.PW-18/B wherein it was disclosed that she had kept the sleeping

tablets in the one part of the Kurta which she had administered to

her deceased husband in the liquor which he had consumed on the

fateful night.

15. The role of co-accused Om Prakash and Shakil @ Pappu was

also unfolded; co-accused Om Prakash was arrested vide memo

Ex.PW-20/A; his disclosure statement Ex.PW-18/D was recorded and

pursuant thereto co-accused Om Prakash got recovered an iron

press from the bushes near the ganda nala of Sector-17 which was

taken into possession vide memo Ex.PW-18/E. PW-15 Sandeep, a

photographer was summoned to the spot who took photographs of

the press Ex.P-1 to P-10. The iron press was proved in court as

Ex.P-6.

16. Co-accused Mohd. Shakil @ Pappu, however, could not be

arrested in spite of best efforts and pursuant to the initiation of

proceedings under Section 82/83 Cr.PC, the said co-accused was

declared Proclaimed Offender.

17. The trial court while returning a finding of guilt against the

appellant had relied upon the admission made by the appellant in

her statement Ex.PW-20/A which formed the basis of the FIR,

wherein she had stated that she was sleeping with her husband and

two children in their matrimonial home in the intervening night of

8/9.7.1998. On the following morning when she woke up at about

5.45/6 a.m., she noted that her husband was not responding to her

call. She informed her neighbor; her neighbor, on reaching, found

her husband lying dead.

18. Admittedly, it was on this statement that the FIR was

registered. The trial court has held that this statement is not

amounting to a confession and is not excluded from admissibility

and such an information is admissible as evidence of her conduct

under Section 8 of the Evidence Act. Such information being not

confessional, it was also held admissible under Section 21 of the

Evidence Act.

19. Having drawn this conclusion that the deceased and the

appellant had both slept in the matrimonial home along with their

two children on the fateful night of 8/9.7.1998 and house being

securely bolted and locked from the inside and there not being any

forced entry of any outsider from outside into the matrimonial

home, the accused thereafter having been found dead on the

following morning, the burden clearly shifted upon the accused to

explain the circumstances in which the deceased had died in this

intervening night; the provisions of Section 106 of the Evidence Act

had been invoked by the trial court shifting the onus upon the

accused to give a satisfactory explanation about the incident. No

such explanation had been found forthcoming.

20. From the nature of the injuries on the person of the deceased

the Trial Court has concluded that the same evidenced involvement

of more than one person.

21. Reliance had also been placed on the version of PW-8

Gurdayal Mohan, the neighbour to whom first information of this

incident had been given by the appellant. The illicit relationship

between the deceased and her paramour i.e. the co-accused Shakil

@ Pappu had also been highlighted as a motive of the crime.

22. Co-accused Om Prakash had, however, been given a benefit

of doubt and he had been acquitted as besides the recovery of an

iron press at his behest, no other incriminating circumstance had

been advanced by the prosecution against him.

23. On behalf of the accused, arguments have been advanced by

Mr. Anil Soni, Advocate. It has been argued that the statement of

Sunita Grover, the maker of the FIR cannot be relied upon as the

bar of Section 25 and Section 26 of the Evidence Act is attracted

and Sunita Grover admittedly being an accused before this court

and her statement having been recorded by the police, this bar of

Section 25 & 26 of the Evidence Act gets attracted and her

statement clearly amounting to a confession cannot be read in

evidence. If this statement of Sunita Grover is ignored, there is

nothing on record with the prosecution which could establish their

averment that the deceased and the accused were sleeping in the

matrimonial home along with their two children in the intervening

night and in the absence of which all other consequential and

subsequent circumstances flowing thereto have to fall. It is argued

that version of PW-8 is tainted and cannot be relied upon to

establish any kind of motive as has been set up by the prosecution;

it has been brought to notice that in his cross examination PW-8 has

stated that whatever information he has given about the illicit

relationship of Pappu and Sunita was on the information of Nand

Kishore and his sister and Nand Kishore has been examined as PW-

19, who has not supported the case of the prosecution and has

stated that his Bhabhi, the appellant Sunita was a good charactered

lady and he did not suspect her fidelity. It is argued that theory of

motive also fails. It is further argued that an incriminating

circumstance which has not been put to the accused in her

statement under Section 313 Cr.P.C. cannot be used against her

and a perusal of this statement shows that no circumstance about

the appellant having an illicit relationship with the co-accused

Pappu had been specifically put to her. It has lastly been argued

that PW8 in his cross examination by the learned APP has admitted

that he had seen Sunita along with her two children strolling outside

her flat at about 10 p.m. and again at 11 p.m., thereby demolishing

the version of the prosecution that the accused had returned home

at about 10 p.m. in the night and thereafter the couple had gone to

sleep; it is argued that this admission by PW-8 is contrary to the

stand set up by the prosecution.

24. Arguments have been heard and the record has been

perused.

25. Admittedly the statement Ex.PW-20/A made by the appellant

Sunita Grover formed the basis of the FIR. Question is whether this

statement amounts to a "confession" and can be read in evidence

or not.

26. The word "confession" has not been defined in the Indian

Evidence Act but the law relating to confession is found generally in

Sections 24 to 30 of the Evidence Act and Sections 162 and 164 of

the Code of Criminal Procedure, 1898. Confession is a species of

admission, and is dealt with in Sections 24 to 30. A confession or

an admission is evidence against the maker of it, if its admissibility

is not excluded by some provision of law. Section 25 is imperative,

and a confession made to a police officer under no circumstances is

admissible in evidence against the accused. The partial ban

imposed by Section 26 relates to a confession made to a person

other than a police officer. Section 27 is in the form of a proviso

and it partially lifts the ban imposed by Sections 24, 25 and 26. A

statement or confession made in the course of an investigation may

be recorded by a Magistrate under Section 161 of the Code of

Criminal Procedure subject to the safeguards imposed by the

Section, which is protected by Section 162 of the Code.

27. A statement containing purely self-exculpatory matter,

however, cannot amount to a confession, if the exculpatory

statement is of some fact which, if true, would negative the offence

alleged to be confessed. When an admission of an accused is

sought to be used against him, the whole of it should be tendered in

evidence, and where a part of the admission is exculpatory and a

part inculpatory, the prosecution cannot use in evidence the

inculpatory part alone. The said statement cannot be segregated.

28. On the basis of these settled principles of law, the statement

Ex.PW20/A has to be judged, i.e. the statement made by the

appellant who had subsequently become an accused before this

Court.

29. Perusal of Ex.PW 20/A shows that this entire statement is self

exculpatory and does not show the involvement of the accused in

the crime at any stage. Such an information is thus clearly not a

confession and is per se admissible under Section 21 of the

Evidence Act; such a statement given by an accused of the first

information of an offence where there is no involvement of the

accused herself, is also admissible against her as evidence of her

conduct under Section 8 of the Evidence Act as well.

30. This is the settled position of law and has been the subject

matter of numerous judicial pronouncements.

31. In AIR 1964 SC 1850 Faddi vs. State of M.P. the Apex Court

had held that where the person who had lodged the first

information report regarding the occurrence of a murder is himself

subsequently accused of an offence and tried; the report lodged by

him being not a confessional first information report but an

admission by him of certain facts which have a bearing on the

questions to be determined by the Court, such a first information

report was admissible to prove against him, his admissions which

are relevant under Section 21 of the Evidence Act.

32. In similar circumstances the Privy Council in the case of Dal

Singh vs. King Emperor 44 Ind. App 137 (PC) had held that such

first information reports are admissible in evidence. It was inter alia

held as follows :-

"It is important to compare the story told by Dal Singh when making his statement at the trial with that what he said in the report he made to the police in the document which he signed, a document which is sufficiently authenticated. The report is clearly admissible. It was in no sense a confession. As appears from its terms, it was rather in the nature of an information or charge laid against Mohan and Jhunni in respect of the assault alleged to have been made on

Dal Singh on his way from Hardua to Jubbulpur. As such the statement is proper evidence against him...."

33. This Court, on the basis of this fundamental principle of law as

enunciated by the Supreme Court, is thus of the view that

Ex.PW20/A can be read in evidence and is relevant fact under

Section 8 qua the conduct of the appellant and its admissibility also

has to be read in the context of Section 21 of the Indian Evidence

Act. We may hasten to add that in the decisions reported as AIR

1975 SC 757 Shankar Vs. State of U.P. and in the decision reported

as AIR 1972 SC 622 Damodar Prasad Vs. State of Maharashtra first

information reports lodged by the accused which were found to be

false and being exculpatory of the accused; evidence suggesting to

the contrary, was held to be an incriminating conduct of a guilty

mind which wanted to secrete the truth.

34. It was this statement which had set the Investigating

machinery into motion.

35. The prosecution had thus been able to establish that on the

intervening night of 8/9.7.1998, the appellant Sunita Grover along

with her husband Kishan Lal Grover and their two minor children

were sleeping in her matrimonial house i.e. A1/116, Sector-17,

Rohini and on the following morning when the appellant awoke she

found that her husband was not responding to her calls, pursuant to

which she had called her neighbour.

36. The testimony of Gurdyal Singh establishes that the appellant

was loitering outside her house on the fateful night at around 10:00

PM. It establishes that the appellant told a lie to the police that

when her husband returned back at around 10:00 PM, everybody

went to sleep after securing the house. It is apparent that the

appellant was loitering outside the house to facilitate the

commission of the crime.

37. Now, two things are possible. Either that the appellant never

went outside the house or she was seen loitering outside the house.

Both circumstances are equally incriminating. If the appellant

remained in the house, she has to render an explanation as to how

her husband died for the reason there is no evidence of a forced

entry inside the house. The injuries on the deceased are of a kind

which must have caused extreme pain and hence moaning and

groaning by the deceased which was bound to attract the attention

of his wife. If the wife i.e. the appellant was seen loitering outside

her house by Gurdyal Singh, her conduct of telling falsehood to the

police is incriminating conduct.

38. Under both circumstances the fact that the appellant had a

motive assumes significance.

39. In these circumstances, the burden clearly shifted upon the

appellant and it was for the appellant to explain the circumstances

in which the death of her deceased husband Kishan Lal had

occurred in the intervening night. Provisions of Section 106 of the

Evidence Act clearly stood attracted.

40. Prosecution has been able to reach a threshold where the

onus now shifted upon the appellant to offer an explanation as to

how and in what circumstances the incident had occurred. The

accused, however, offered no explanation as to how her husband

was murdered; in fact she had taken a contrary plea in Ex.PW 20/A

wherein to mislead the investigating authorities she had stated that

she had gone to sleep along with her two minor children at about

10.00PM at night and thereafter in the morning she had found her

husband dead.

41. It is no doubt true that Gurdyal Mohan has made somewhat

contradictory statements vis-à-vis his examination in chief which

are favourable to the appellant. But, it assumes significance that

Gurdyal was examined in chief on 18.12.1999. Learned counsel for

the appellant used every trick up his sleeve and cross examined the

witness after five years on 3.1.2005. The witness was either

threatened or won over.

42. The testimony of PW-3, PW-4 and Gurdyal Singh establishes a

close and an intimate relationship between the appellant and

Pappu.

43. The impugned judgment calls for no interference. The appeal

is without any merit.

44. The appeal is dismissed.

(INDERMEET KAUR) JUDGE

(PRADEEP NANDRAJOG) JUDGE

July 13, 2009 rb/ns