Sunder @ Lala vs State
2009 Latest Caselaw 1950 Del

*                 IN THE HIGH COURT OF DELHI

%                         Judgment reserved on : 06.05.2009
                         Judgment delivered on: 11.05.2009

                     CRL. APPEAL 623/2005

      SUNDER @LALA                      ...Appellant
              Through : Ms.Rebecca M.John, Advocate.
                        Mr.Vishal Gosain and
                        Mr.Bharvo K.Chauhaan, Advocates.

                                versus

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

                   CRL. APPEAL 624-25/2005

      RANDHIR SINGH & ANR.                    ...Appellants
               Through : Ms.Rebecca M.John, Advocate.
                         Mr.Vishal Gosain and
                         Mr.Bharvo K.Chauhaan, Advocates.

                                versus

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

                   CRL. APPEAL 626-27/2005

      DHANPATI & ANR.                    ...Appellants
               Through : Ms.Rebecca M.John, Advocate.
                         Mr.Vishal Gosain and
                         Mr.Bharvo K.Chauhaan, Advocates.

                                versus

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

                     CRL. APPEAL 632/2005

      BALBIR SINGH                        ...Appellant
                Through : Ms.Rebecca M.John, Advocate.
                          Mr.Vishal Gosain and

Crl. A. No.623/05, 624-25/05, 626-27/05 & 632/05   Page 1 of 38
                                Mr.Bharvo K.Chauhaan, Advocates.

                                versus

        STATE                                ...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?          Yes

3. Whether judgment should be reported in Digest?             Yes

: PRADEEP NANDRAJOG, J.

1. Article 21 of the Constitution of India guarantees

that no person shall be deprived of his life or personal liberty

except according to the procedure established by law.

2. Pertaining to offences under the Indian Penal Code,

the various sections thereof enumerate offences contemplated

by the legislature. The ingredients of the offences have to be

culled out on a reading of the relevant section of the penal

code. Since actus reus i.e. the doing of an act is an

inseparable part of most offences, the same requires to be

established by evidence. The rules of evidence have been

prescribed under the Evidence Act 1872. Admissibility and

relevance of evidence has to be determined, at a criminal trial,

with reference to the provisions of the Evidence Act 1872. The

Code of Criminal Procedure 1973 governs the procedure to be

followed at criminal trials.

3. Chapter XVIII of the Code of Criminal Procedure

1973 contains provisions relatable to trial before a Court of

Sessions. As per Section 232, being a part of Chapter XVIII of

the Code of Criminal Procedure 1973, if after taking the

evidence of the prosecution, a Judge considers that there is no

evidence that the accused committed the offence, it is the

duty of the Judge to record an order of acquittal.

4. Chapter XXVII of the Code of Criminal Procedure

1973 contains provisions pertaining to the judgment to be

delivered by a Court. Section 354 mandates that the judgment

shall contain the points for determination and the decision

thereon with reasons for the decision.

5. A reasoned decision is not one which spans pages

and pages of paper. A reasoned decision is one which shows

that the decision maker has come to grip with the issues

raised and has dealt with the same, reflecting the process of

the mind by which the conclusions have been arrived at.

6. A judgment at the end of a criminal trial which

ignores the evidence which has been brought on record, and

without application of mind arrives at conclusion sans a

reasoning preceding the same, resulting in the conviction of

the accused, is a serious violation of the right of the accused

guaranteed under Article 21 of the Constitution of India,

because it results in deprivation of personal liberty without

following the procedure established by law. Thus, at a trial,

when the hand and the mind of a Judge turn cold, the first

casualty is Article 21 of the Constitution of India and the

second casualty is the oath taken by a Judge to decide every

case brought before him as per procedure established by law.

7. We are pained to commence our present decision

with a preface aforesaid, for the reason, at least qua accused

Ranbir Singh, the father-in-law of the deceased and accused

Jai Prakash, the brother-in-law of the deceased, for the offence

of murdering Laxmi, learned counsel for the State Shri Pawan

Sharma conceded during arguments in the appeal that there is

just no evidence whatsoever to sustain their conviction.

8. We are pained to note that the learned Trial Judge

has incorrectly reflected the evidence and has read

statements into the testimony of PW-1, not made by her, and

indeed not reflected in her deposition recorded by the Court.

9. In para 47 of the impugned decision dated

11.7.2005, the learned Trial Judge has reflected upon the

testimony of Smt.Rajo PW-1 as under:-

"47. I have gone through statement of PW-1 Smt.Rajjo. She has categorically stated that on 20/7/02 at about 11 am she was present in her house when her father-in-law Randhir Singh, Balbir SIngh - husband of Smt.Laxmi, Sunder Lal - her devar and his

wife - Asha, Jai Prakash and her mother-in-law - Smt.Dhanpati were all present in the house when they all took Smt.Laxmi to the first floor of the house by dragging her. Accused Sunder was also having an injection syringe and one vial in his hand. She also tried to go upstairs, but she was pushed back by her mother in law Smt.Dhanpati and she was bolted in a room on the first floor. After some time her mother in law Smt.Dhanpati opened the door of the room in which she was bolted and she was taken to the room where Smt.Laxmi had been taken. There she saw Smt.Laxmi in a sitting posture on the bed in that room and a rope was around her neck which was tied with the ceiling fan. Her mother-in-law got that rope cut with a sickle which she had given to her and she threatened her that in case she raised an alarm she would also be implicated. As she cut the rope, Smt.Laxmi fell on the bed. She could feel that Smt.Laxmi still had some life. But Smt.Laxmi was kept in the house till 4 pm. Thereafter members of her matrimonial home took Smt.Laxmi to cremation ground in the village. Somebody called the police and police arrived there before Smt.Laxmi could be cremated. From the evidence of this witness it has become clear that all the accused persons had taken Smt.Laxmi to the room on the first floor where she was given poison and then she was hanged with the help of a rope with the ceiling fan. I have also gone through the cross examination of this witness, but nothing significant could be elicited in the cross examination which could impeach the credibility of this witness."

10. It is apparent that the learned Trial Judge has

written in para 47, that in her statement Smt.Rajo PW-1 has

categorically stated that on 20.7.2002 at about 11:00 AM she

was present in her house when her father-in-law Randhir

Singh, Balbir Singh - husband of Smt.Laxmi, Sunder Lal - her

devar and his wife - Asha, Jai Prakash and her mother-in-law -

Smt.Dhanpati were all present in the house when they all took

Smt.Laxmi to the first floor of the house by dragging her.

11. We reproduce, in verbatim, the examination-in-chief

of Smt.Rajo PW-1. It reads as follows:-

"We two sisters i.e., myself and my elder sister Laxmi were got married to two real brothers i.e., Sh.Jai Prakash and Sh.Balbir Singh respectively in the year 1990. Laxmi had got 3 children born to her and I have two children out of this marriage. For 3 years of this marriage, our matrimonial home members kept us in normal condition but thereafter, they started acts of beating and harassment. Laxmi used to live on the first floor in the matrimonial home and I used to live on the ground floor.

Incident of the present case of 20.7.2002 and time was 11 am. Family members present in the house were myself, my father-in-law Sh.Ranbir Singh today present in Court, Sh.Balbir Singh husband of Mrs.Laxmi, Sh.Sunder Lal my Devar, his wife Smt.Asha and my husband Sh. Jai Prakash and my mother in law Smt.Dhanpati all these persons are present today in court as accused. In the morning on the date of incident, Laxmi got her children ready for school and the children were sent to the school. Laxmi after sending children to school came to me and started crying/weeping. Her husband, Balbir, Balbir‟s brother Sunder and his wife Asha and my mother in law Dhanpati then took Laxmi to take her to the first floor and rather they pulled her to take her upstairs by force. Accused Sunder was then having an injection syringe and one vial. I then also tried to go upstairs but then my mother in law pushed me and bolted me in a room. The room in which I was bolted was situated on the first floor which was in occupation of accused Sunder otherwise. From that room I made a telephone call at my parents house telling at my house that my sister has been killed. Thereafter, my mother in law opened the door in which I had been bolted and took me to the room where Laxmi had been taken. I saw Laxmi in a sitting posture on the bed in that room and there was a rope around her neck and that rope then tied with a ceiling fan. My

mother in law got that rope cut with a sickle which she had given to me. She threatened me that in case I raised hue and cry I also would be implicated. As I cut the rope Laxmi fell on the bed as I could sense Laxmi had some life. But then Laxmi was kept in house till 4:00 PM. Members of my matrimonial home then took Laxmi to the cremation ground in the village Deenpur PS Najafgarh, Delhi. Someone called police at No.100 and then police arrived before Laxmi was cremated. I have seen my statement which bears my thumb impression and is exhibit PW-1/A which was recorded on 27.7.2002. I had left my matrimonial home on 20.7.2002 and came to my parents house with my father. Reason for lodging my report with police on 27.7.2002 by delay of 7 days was my physique not in a proper condition as I had not been keeping well.

After 15-20 days of lodging of my report on 27.7.2002, that I again visited my matrimonial home with police and I pointed out the place where I had seen Laxmi with rope around her neck and police carried out these proceedings."

12. We have read and re-read the statement of Rajo

and simply do not find anywhere stated by her that all accused

dragged Laxmi to the first floor of the house. In fact, she has

deposed: Her husband, Balbir, Balbir's brother Sunder and his

wife Asha and my mother in law Dhanpati then took Laxmi to

take her to the first floor and rather they pulled her to take her

upstairs by force.

13. It appears that so predetermined was the learned

Trial Judge to convict all the accused, that in his zeal, he has

read non-existing statements into the testimony of Rajo.

14. It is not in dispute that Laxmi was married to Jai

Prakash and her sister Rajo was married to Balbir Singh. Both

sisters were married in the same family to two brothers and

used to reside in the joint family with their in-laws as also their

brother-in-law Sunder whose wife Asha also used to reside in

the same house i.e. the ancestral house in village Deenpur

under jurisdiction of PS Najafgarh.

15. On 20.7.2002 at around 5:00 PM the body of Laxmi

was seized by SI K.K.Mishra PW-14 from the cremation ground

of Surya Vihar near Deenpur as he and Const. Shashi PW-9 had

gone to the cremation ground as a telephonic information was

received at the police station that a lady had committed

suicide in village Deenpur and her relatives had taken her to

the cremation ground without informing the police.

16. The dead body seized was that of Laxmi. It was

sent for post-mortem to DDU Hospital where Dr.Manoj Nagpal

PW-8 conducted the post-mortem on 22.7.2002, recording on

the post-mortem report Ex.PW-8/A, the following external

injuries:-

"Presence of faint mark seen on the neck in front extending from upper part of thyroid cartlidge to the nape of the neck upward and backward. Base of the mark was congested."

17. He preserved the viscera of the deceased and

handed over the same to SI K.K.Mishra as recorded in the

memo Ex.PW-14/C. He wrote on the post-mortem report that

the opinion pertaining to the cause of death was kept pending

to await the analysis of the viscera of the deceased. It may be

noted that as per FSL report Ex.PW-14/H dated 4.9.2002, the

viscera of the deceased tested positive for presence of

aluminium phosphide i.e. aluminium phosphide was detected

in the stomach and a piece of small intestine. From the pieces

of liver, spleen and kidney of the deceased phosphide was

detected.

18. Reverting back to what happened on 20.7.2002,

after SI K.K.Mishra seized the dead body of Laxmi and sent the

same for post-mortem, SI K.K.Mishra went to the house of the

deceased and summoned a photographer who took

photographs of the room in which Laxmi died. He seized a

rope Ex.P-1 and a sickle Ex.P-2 which were handed over to him

by Jai Prakash, husband of Rajo PW-1 i.e. the brother-in-law of

the deceased and recorded the said fact in the memo Ex.PW-

14/A.

19. The next day i.e. on 21.7.2002 he recorded the

statement Ex.PW-2/D-1 of Hari Singh PW-2, the translation

whereof reads as under:-

"Statement of Hari Singh S/o Dalsher Singh R/o village Basodi Distt. Sonepat (Haryana) aged 52 years.

I reside at the afore noted address with my wife and children and am a farmer. I have five children i.e. three daughters and two sons. My eldest daughter Laxmi is aged 30 years, Rajo is aged 25 years and the youngest daughter Usha is aged 20 years. Laxmi and Rajo were married on the same day i.e. on 1.4.1990 to Balbir Singh son of Randhir Singh and Jai Prakash son of Randhir Singh resident of village Deenpur PS Najafgarh New Delhi. Whereas Laxmi started residing in her matrimonial house in the year 1990, Rajo joined her matrimonial house after three years of her marriage. After 4 - 5 years of Laxmi‟s marriage her in- laws i.e. her mother-in-law, father-in-law, husband and her brother-in-laws named Jai Prakash and Sunder started demanding money saying that they needed the same for opening a business. Twice I gave Rs.20,000/- and Rs.20,000/- but due to my financial condition was unable to satisfy their demand. Since I am a poor farmer, whenever my daughters Laxmi and Rajo used to come to my house they would complain of ill-treatment by their parents-in-law, husbands and brothers-in-law. Especially Laxmi whose husband used to consume alcohol and under influence of alcohol used to abuse and physically assault Laxmi. About 8 - 10 days prior to Laxmi‟s death her husband had assaulted her as a result whereof her eardrum got damaged. Some information used to be given to us by our daughters over the phone and sometimes when they used to come to my house. I am fully convinced that my daughter Laxmi has been murdered by her father-in-law, mother-in-law, her husband and her brother-in-laws. I have been read over my statement which is correct."

20. On 27.7.2002 the statement Ex.PW-1/A of Rajo was

recorded by SI K.K.Mishra which reads as under:-

"Statement of Rajo D/o Shri Hari Singh R/o village Basondi P.O. Basondi Village and P.O. Sonepat (Haryana) aged 25 years.

I reside at the afore-noted address. We are five brothers and sisters. On 1.4.1990 myself and my elder sister Laxmi were married as per Hindu custom to Balbir and Jai Prakash both sons of Randhir Singh residents of village Deenpur PS Najafgarh, New Delhi. Three children were born to my sister Laxmi. The eldest is a daughter Barkha aged 11 years, the second is also a daughter Navita aged 7 years, the third is a son Mohit aged 5 years. Two children, both sons, Jai Vikrant aged 7 years and the second Jaidev aged 4 years were born to me. My sister went to her matrimonial house soon after her marriage and I went to the matrimonial house after three years of my marriage. Till then we sisters had no complaint and for about two years everything was fine. After two years the attitude of our in-laws changed and they became abusive towards us and we used to be beaten. Whenever sad we used to go to our parental home and on being counseled by our parents we used to return to our matrimonial house. Balbir used to drink alcohol and under influence of alcohol used to beat my sister who used to reside on the first floor. I used to reside on the ground floor. In the morning of 20.7.2002 my sister got up and sent her children to school after dressing them in the school uniform. At that time all family members were present in the house. After sending her children to school she came and sat beside me and started crying. At that time my mother-in-law, my sister-in-law Asha, Balbir - husband of Laxmi and my brother-in-law Sunder @Lala who had an injection caught her and took her upstairs. My husband Jai Prakash and my father-in-law were sitting in the ground floor. The time was around 10:30/11:00. When these people were forcibly taking my sister upstairs and I attempted to move upstairs, my mother- in-law pushed me inside a room and locked me inside. The room belonged to my brother-in-law Sunder which had a telephone and I used the same to ring up my village and inform to pass on information to my parents that Laxmi had been murdered. At that point of time my mother-in-law opened the door of the room in which I had been bolted and took me to the adjoining room of Laxmi. I saw Laxmi in a sitting posture on the bed with a rope around her neck and tied to the ceiling fan. My mother-in-law thrust a

sickle in my hand and made me forcibly cut the rope. She told me that I should tell that Laxmi has hung herself and that I had cut the rope with the sickle. Thereafter, my mother-in-law and other family members went down. I started crying at which my mother-in-law threatened that if I cried they would implicate me. The dead body of Laxmi was kept in the house till 4:00 PM when it was taken to the cremation ground from where it was seized by the police as somebody had informed the police about my sister‟s death."

21. The entire case of the prosecution is based on the

testimony of Rajo whose presence in the house is not in

dispute and who claimed to be an eye-witness to the events

which took place in the matrimonial house on 20.7.2002.

Needless to state, the conduct of the in-laws of the deceased

of not informing the police about the death of Laxmi, which

was obviously and admittedly unnatural, and their attempt to

cremate the body was pressed in aid as an incriminating

conduct. The FSL report which showed that Laxmi was

poisoned was used as evidence to corroborate Rajo that the

deceased was poisoned with a substance containing

aluminium phosphide. The father, brother and mother of the

deceased i.e. Laxmi were also examined to prove dowry

demands and harassment to Laxmi.

22. Thus, we need not note the testimony of the police

officers who were involved with the investigation. We also

need not note the testimony of the doctor who conducted the

post-mortem of Laxmi as also the testimony of the scientist

who tested the viscera of the deceased.

23. In para 9 above, we have reproduced para 47 of the

impugned decision, wherein the learned Trial Judge has held

that Rajo PW-1 has categorically deposed that all the accused

persons were present in the house and all took Laxmi to the

first floor of the house by dragging her. With reference to the

cross-examination of Laxmi, learned Trial Judge has held: I

have also gone through the cross examination of this witness,

but nothing significant could be elicited in the cross

examination which could impeach the credibility of this

witness.

24. As noted by us herein above in paras 9 to 12 above,

we just do not find any role attributed by Rajo to Randhir Singh

- the father-in-law of the deceased or Jai Prakash - the brother-

in-law of the deceased who also happens to be the husband of

Rajo. What has been deposed to by Rajo is that in the morning

all family members were present in the house and that after

Laxmi sent her children to the school she came to her room

and started crying, at which point of time Balbir - husband of

Laxmi, Sunder and his wife Asha and her mother-in-law

Dhanpati took Laxmi by force on the first floor and at that

point of time Sunder was having an injection syringe and a vail

and that when she i.e. Rajo tried to go upstairs her mother-in-

law pushed her and bolted the room on the first floor which

was in the occupation of Sunder. Nowhere has Rajo spoken

about her father-in-law and her husband doing any act at that

point of time. In her further testimony, Rajo has deposed that

after she made a call to her village informing that her parents

be informed that Laxmi has been killed, her mother-in-law

opened the room and took her to the room of Laxmi where she

saw Laxmi in a sitting posture on the bed with a noose around

her neck and the other end tied to the ceiling fan. Her mother-

in-law made her cut the rope with a sickle and threatened her

of being implicated if she cried. No role has been assigned by

Rajo to her husband i.e. Jai Prakash or her father-in-law i.e.

Randhir Singh even at stage two of the events narrated by her.

25. Indeed, the learned Trial Judge has read the

testimony of Rajo, to say the least, in a most perverse manner.

The testimony of Rajo has been twisted to suit the

predetermined goal set by the Judge i.e. to convict Jai Prakash

and Randhir Singh.

26. It is not out of place to note that even in her

statement Ex.PW-1/A made to the police and as recorded by SI

K.K.Mishra, Rajo substantially stated the same facts which she

had deposed in Court. Even in said statement, translated

version whereof we have reproduced in para 20 above, she

has not assigned any role to her father-in-law and her

husband. She has only said that they were present in the

house on the ground floor.

27. No other incriminating evidence against said two

persons has been brought on record pertaining to the death of

Laxmi. Qua them, the only incriminating evidence which

remains to be considered would be the act of said two persons

joining the other family members in the cremation of Laxmi

without informing the police. At best, the same would relate to

an offence punishable under Section 201 IPC i.e. destroying

evidence. Thus, for the offence punishable under Section

302/34 IPC, Randhir Singh and Jai Prakash are entitled to be

acquitted.

28. We need to discuss the testimony of Rajo with

reference to the four other co-accused viz. her brother-in-laws

Sunder and Randhir Singh as also her mother-in-law Dhanpati

and Asha wife of Sunder.

29. It is settled law that circumstances play a very

important role in the appreciation of evidence. The conduct of

witnesses is a very important facet to determine their

creditworthiness.

30. In para 11 above we have reproduced in verbatim

the examination-in-chief of Rajo.

31. We note that in cross-examination she admitted

that her parents had information of death of Laxmi by around

11:00 AM on 20.7.2002 and that her mother and brother Vijay

had met her at 4:00 PM on 20.7.2002. She admitted that

people of village Deenpur had collected in her matrimonial

house after Laxmi died. She admitted that the distance

between her matrimonial house and her paternal house could

be covered in a bus by two to three hours. She also admitted

in cross-examination that her brother-in-law Balbir Singh was

employed with S.K.Tourist and used to leave the house in the

morning for Nangal Rai and used to return in the evening. She

also admitted that her brother-in-law Sunder was privately

employed in a hotel and used to leave the house in the

morning and return in the evening. She stated that she cannot

tell whether Sunder was employed with Taj Caterers. She

admitted that she did not narrate the incident to any woman

from the locality who had arrived in their house after Laxmi

died. She denied the suggestions that Balbir and Sunder had

left the house for their job in the morning by around 6:30 AM

and that her father-in-law Randhir Singh had also left the

house. She denied that her husband Jai Prakash had left the

house for the fields at around 7:00 AM. She denied that in fact

Asha had seen Laxmi hanging by the rope from the ceiling fan

and came down crying at which she and her mother-in-law

went upstairs and she cut the rope around the neck of Laxmi

with a sickle and laid the body on the bed. She denied that

Balbir and Sunder arrived in the house at around 12:30 PM.

32. Hari Singh PW-2 deposed that on 1.4.1990 his

daughters Laxmi and Rajo were married to Balbir and

Jaiprakash, both brothers. Laxmi joined her matrimonial home

immediately after marriage. Rajo joined the matrimonial home

after three years. For the next three years thereafter there

were no complaints but thereafter his daughters started

complaining that the in-laws used to compel them to bring

money as they desired to set up a business and that Balbir,

husband of Laxmi started consuming alcohol and started

quarreling with Laxmi and started beating her. On two

occasions he had paid Rs.20,000/- each but could do no more

due to his not being in a sound financial condition. That on

20.7.2002 his wife and son went to the matrimonial house of

his daughters as they got information of Laxmi‟s death. He

learnt about Laxmi‟s death at 3:00 PM on 20.7.2002 when he

reached his house. He reached the matrimonial house of his

daughters by evening and by then Laxmi‟s body had been sent

for post-mortem. He was told by his son Vijay Pal and his wife

Jago that Laxmi had been killed by hanging. He spoke to his

daughter Rajo at around 11:00 or 11:30 PM but she did not

narrate any details to him as she was not conscious.

33. Vijay Pal PW-4 deposed that his sisters were

married to Balbir Singh and Jai Prakash on 1.4.1990 and that

his father had twice given Rs.20,000/- to Laxmi as her in-laws

were demanding money. His sisters used to tell him that they

were tortured by their in-laws. Eight to ten days prior to the

incident Laxmi had informed that Balbir had beaten her as a

result her ear got damaged. On 20.7.2002 Rajo informed them

that Laxmi had been killed by her in-laws. He and his mother

went to Deenpur. That his statement was recorded by the

police on 5.8.2002. On being cross-examined, PW-4 stated

that at 11:00 AM on 20.7.2002 they were informed by Rajo

that Laxmi had been murdered.

34. Jago PW-5, the mother of the deceased deposed on

same lines as her son and also stated that on 20.7.2002 at

11:00 AM she received a call from Rajo informing that Laxmi

had been killed and that she reached the matrimonial house of

her daughter at 3:00 PM.

35. The defence led evidence and examined five

witnesses. DW-1 was examined to prove that she was present

in the matrimonial house of the deceased who committed

suicide. DW-2 was examined to prove that Balbir Singh was in

his office at 11:00 AM on 20.7.2002. DW-3, DW-4 and DW-5

were examined to prove that Sunder was in his office at 11:00

AM on 20.7.2002 i.e. DW-2 to DW-5 were examined to make

good the plea of alibi raised by Balbir Singh and Sunder.

36. Mrs.Krishna DW-1, a bangle seller, deposed that on

the day of occurrence she reached the house of the accused at

around 10:00 AM. Accused Randhir Singh was leaving home at

that time and no other male member was present in the

house. Accused Dhanpati called her inside the house and

asked her to show bangles to her three daughters-in-law. As

she entered the precincts of the house she saw the deceased

go upstairs after washing her hands in the kitchen. She

showed bangles to accused Asha and Rajo, the daughter-in-

laws of Dhanpati. Dhanpati requested Asha to call the

deceased so that even she could buy bangles. Asha went

upstairs and returned screaming that Laxmi had committed

suicide. She along with the other members of the family

went upstairs and saw the deceased in a sitting posture on the

bed with her neck tied with a rope and her head tilted to one

side. The rope was cut by Rajo the sister of the deceased.

That the neighbours collected and within half an hour Jai

Prakash @Lala reached the house. The family members

contacted their relatives over the phone. That the police

contacted her four to five days after the incident and her

statement was recorded by them and she signed the same.

37. Anil Kumar DW-2 the owner of S.K.Tourist Service

deposed that accused Balbir Singh used to work with him as a

supervisor and that he used to arrive at the office at around

7:00 AM and leave at 4:00 PM. That on the day of the incident

Balbir came to the office at 7:00 AM and remained in the office

till around 11:00 AM when he i.e. the witness received a

telephone call from someone who was in a perplexed state of

mind and asked for accused Balbir. He called Balbir, who after

attending the call, told him that his wife had committed

suicide. With his permission Balbir left the office. That the

police contacted him probably on the third day after the

occurrence and recorded his statement and told him that he

will be sent summons from the Court as and when required.

Relevant would it be to note that during cross examination the

witness stated that he used to pay salary to his employees in

cash and that he had no document to show that Balbir was

employed by him. He stated that his chartered accountant

prepares his profit and loss account.

38. Yunus Patel DW-3 deposed that he was a co-worker

along with accused Sunder at Taj Sets Air Catering near Airport

and that on the day of the incident he boarded the company

coach (bus) along with accused Sunder at around 7:15 - 7:20

AM. On reaching the office, as per practice they punched the

computer machine to record their entry and presence in the

office by inserting their I-card in the punching machine which

recorded the entry. That Sunder performed his usual duties till

around 11:00 AM till he received a telephone call from his

house informing him that his sister-in-law had committed

suicide. The information was immediately conveyed to the

head chef Mr.Devinder Soni who asked him i.e. the witness to

accompany the accused since accused Sunder was in a state

of shock. That both left the office at around 11:00 AM and

reached the house of accused Sunder at around 11:45 - 11:50

AM. A huge crowd had gathered around the house when they

reached. That SI K.K.Mishra visited their office and made

enquiry about presence of Sunder in the office and that he told

SI K.K.Mishra that Sunder was in the office till 11:00 AM and

that SI K.K.Mishra made enquiries from Ajay Sood and

Devinder Soni and asked them to affirm the information given

in writing. That the senior Chef Mr.Ajay Sood gave the

information in writing vide Ex.DW-3/A and Devinder Soni the

head Chef gave similar information in writing vide Ex.DW-3/B.

39. DW-4 Pawan Kumar Sharma deposed that he

worked with Taj Sets Air Company as Manager Human

Resources where accused Sunder was also an employee. On

the date of the incident at 11:00 AM a phone call was received

by him from the head of the department of accused Sunder

viz. Chef Ajay Kumar informing him that accused Sunder had

to go home as he had received a call from his house informing

him that his bhabhi had committed suicide and that the

accused be given the permission to leave the office. That the

police visited their office one week after the incident and the

afore-mentioned facts were given by him to the police in

writing and that the original of the photocopy mark „X‟ was

given to the police.

40. Ajay Kumar Sood DW-5 deposed that he worked

with Taj Flight Kitchen and that on the day of the incident, at

about 10:30 AM he was informed by Mr.B.K.Soni that accused

Sunder has some emergency at home and would have to leave

for home. That he immediately informed Mr.Pawan Sharma

DW-4 that accused Sunder was being sent home on account of

the emergency. He called the person at security gate and

asked him to allow Sunder to leave the premises and was

informed by said person that Sunder had already left the

premises with some union members, one of whom was Yunus

Patel. That the police had come to him for verification of the

facts of the case and that he had told the aforesaid facts to the

police and that the writing Ex.PW-3/A given to the police was

signed by him at point „B‟.

41. As noted above, the learned Trial Judge has

convicted the accused for the offence of murdering Laxmi

believing the testimony of Rajo PW-1. The plea of alibi and the

evidence related thereto has been turned down as discussed

in para 54 and 55 of the decision. In para 54, the testimony of

Anil Kumar DW-2, has been discussed, who deposed that

Balbir was his employee and was in the office at about 7:00

AM on 20.7.2002 and left for his house when he received

information that his wife had died. He did not produce any

documents to show that Sunder was his employee or was in

the office as stated by him. The learned Trial Judge has held

as under:-

"54. DW-2 Sh.Anil Kumar has deposed that he is running business of transport and accused Balbir was working as supervisor with him since 1995 and had remained with him as supervisor till 20/7/2002. On 20.7.2002 he had arrived at his office at about 7 am. At about 11 am on that day he received a telephone call for Balbir. After hearing telephone call, Balbir Singh told him that his wife had committed suicide and he had to go. He permitted him to leave the office immediately. In his cross examination he has stated that he did not issue any appointment letter to accused. There are about 15 employees with him and he did not keep any

attendance or service register of the employees. He did not give salary by cheque to the employees. He did not keep any Profit and Loss Account. He cannot show any document to show that accused Balbir was working with him or attended office on 20/7/2002 at about 7 am. Testimony of this witness is of no help to the accused persons because he has failed to show any document to prove that accused Balbir was working with him or that he attended office on 20/7/2002 at 7 am and was with him up to 11 am. No reliance can be placed on the evidence of this witness."

42. DW-3 to DW-5 deposed that Sunder was employed

with Taj Sets Air Catering and had reported for duty in the

morning of 20.7.2002 and had left when he received

telephonic message that his sister-in-law had died. Noting that

evidence led by Sunder, in the form of his presence being

recorded at the computerized punching machine which

recorded the same with reference to the I-Card of Sunder, was

unimpeachable, the learned Trial Judge has held that there is

no proof that Sunder left the office at a particular time. The

learned Trial Judge, in para 55 has held as under:-

"55. DW-3 Yunus Patel has stated that he is working in Taj Sats Air Catering near airport since 1990. Accused Sunder was also working as cook in the same kitchen. On 20/7/2002 they boarded the bus together and when they reached office together at 7.20 am he along with accused Sunder got the entry card punched. On that day accused Sunder attended his duties till around 10.45-11 am when he received a telephone call about the fact that his Bhabhi had committed suicide and

accused thereafter immediately left the kitchen. This witness has further deposed that at the time of departure at about 11 am he was along with accused, but at that time he did not put his card in the computer as he was in a hurry and that accused Sunder also did not put his card in the computer at that time. He made no complaint in writing to any police officer about the false implication of this accused in this case or about the facts stated by him in the court. Testimony of this witness is also of no help to the accused persons as the punching time on the card is given 7 am on 20/7/2002, but no departure time of 11 am is mentioned in the card. If he along with accused Sunder had left the office at 11 am on 20/7/2002, they should have put their card in the punching machine, but he says that neither he nor accused Sunder put his card in the machine so that time could be printed on the card as and when he along with DW-3 left the company. He has further stated that he did not make any complaint with police stating that accused Sunder, present in court, was in the company at the time when this incident took place or that accused has been falsely implicated in this case by the police at the instance of complainant. He should have made a complaint to the senior police officers when he came to know that accused has been falsely implicated in this case. Testimony of this witness is of no help to the accused persons."

43. Pertaining to the plea of alibi set up by Sunder and

the evidence brought on record by him, it is apparent that the

learned Trial Judge has accepted that the same conclusively

established, that in the morning of 20.7.2002, Sunder had

reported for duty in his office, inasmuch as, his presence was

recorded in the computerized punching machine installed by

the employer, where all employees had to mark their

attendance. This evidence of unimpeachable character was

duly corroborated by the testimony of DW-3 to DW-5. But the

learned Trial Judge has held, that since there is no departure

entry recorded in the punching machine, and that since

Sunder did not raise a hue and cry and did not make

complaints to superior police officers of being falsely

implicated, an inference had to be drawn that the plea of alibi

set up by him, of not being in the house at 11:00 AM, was not

proved.

44. The first reason given by the learned Trial Judge

that from the fact that there is no departure entry punched by

Sunder in the computerized punching machine at the time of

departure and hence it does not stand established that he was

present in his office at 11:00 AM, is in sweet ignorance of the

requirement of appreciating the conduct of a person with

reference to the circumstance in which the person was, at the

relevant time.

45. The sister-in-law of Sunder had suffered an

unnatural death and said information given to Sunder, would

obviously trouble the mind of Sunder, who would obviously,

think of his brother and desire to reach back home as soon as

possible. Was it the concern of Sunder to follow the protocol

of the office by applying for leave and punch the punching

machine to record his departure or was the concern to reach

back home at the earliest? Commonsense tells us that his

concern was the latter. Besides, why should DW-3 to DW-5 be

lying. Nothing has been brought out in the cross examination

of these witnesses to discredit their testimony, which we find

is corroborated by the information they gave in writing

contemporaneously to SI K.K.Mishra, as recorded in Ex.DW-3/A,

Ex.DW-3/B and the document marked X. In this connection,

we may note that Rajo stands totally falsified when she stated

that in the morning, everybody was present in the house. At

least qua Sunder leaving the house in the morning at around

7:00 AM, we have unimpeachable evidence on record in the

form of his reporting for duty as recorded in the computerized

punching machine. We are surprised that this unimpeachable

evidence has been ignored by the learned Trial Judge to

carefully analyze the deposition of Rajo who, if not more, is

proved to the hilt to have spoken a lie when she said that

everybody was present in the house in the morning soon

before her sister sent her children to school. The other

reasoning given by the learned Trial Judge that since Sunder

did not complain of false implication to the senior police

officers, requires an inference to be drawn qua his guilt, to say

the least is based on convoluted logic, for if this be the

premise to hold a person guilty, in virtual every criminal trial,

the guilt of the accused would have to be sustained because

one seldom comes across cases where the accused persons,

proved to be innocent after the trial, have been found to be

complaining to superior officers.

46. We hold that the evidence on record establishes

that Sunder was not present in the house at 11:00 AM on

20.7.2002 and therefore the question of his participating in the

commission of the crime as deposed to by Rajo does not arise.

47. The plea of alibi set up by Balbir has been negated

by the learned Trial Judge, with reference to the fact that his

employer Sh.Anil Kumar, who claimed to be the owner of

S.K.Tourist Service, could not produce any documentary

evidence to show that Balbir was his employee. Prima facie,

the reasoning of the learned Trial Judge may be correct if the

issue has to be seen only with reference to the testimony of

Sh.Anil Kumar. But, as noted above in para 31 of our decision,

during cross examination, Rajo admitted that her brother-in-

law Balbir Singh was employed with S.K.Tourist and that he

used to leave the house in the morning for Nangal Rai and

return in the evening.

48. The un-officious manner in which business is

conducted in the unorganized sector in India is well known. In

a country where tax avoidance is the norm and tax compliance

the exception, it is not unknown of petty businessmen not

maintaining any record of their business. Once Rajo admitted

that Balbir, her brother-in-law, was employed with S.K.Tourist,

it was the duty of the learned Trial Judge to have scrutinized

the plea of alibi set up by Balbir with reference to the

admission made by Rajo. The learned Trial Judge has not done

so. It reinforces our belief that the learned Trial Judge had pre-

conceived a decision to convict all the accused and thereafter

proceeded to write the decision, ignoring such evidence as

was uncomfortable with the line of reasoning adopted by the

learned Trial Judge.

49. Though, falus uno falsus omnibus, is not the

principle adopted by Courts in India, but it has been repeatedly

held that once the testimony of a witness is found to be false,

in some respect or qua some accused, it becomes the duty of

the Court to carefully sieve the testimony of the witness and

only if grain can be separated from the chaff, ignoring the

chaff, the grain can be used. The learned Trial Judge has

ignored this rule of caution while analyzing the testimony of

Rajo.

50. If Sunder was not present in the house, the offence

obviously could not be committed in the manner alleged by

Rajo. As per her testimony, it was Sunder who had an injection

and a vial in his hand when Laxmi was dragged upstairs. The

logical conclusion would be that it was Sunder who injected

the poisonous substance. Obviously, this could not have

happened, because Sunder was not in the house. Thus, on this

short ground alone, the entire version of Rajo needs to be

disbelieved.

51. But that is not all. If indeed, Laxmi was dragged

upstairs as claimed by Rajo, it is not believable that some

bruise marks and some contusion marks would not have

resulted as injuries on her body. The post-mortem report

Ex.PW-8/A does not record a single bruise or contusion mark

and the same is yet another indicative fact which demolishes

the version of Rajo.

52. The viscera of the deceased, as noted hereinabove,

tested positive for the presence of aluminium phosphide as per

FSL Report Ex.PW-14/H. Toxicological information on

aluminium phosphide guides us, that aluminium phosphide

reacts with moisture i.e. water, acids and many other liquids to

release hydrogen phosphide, a poisonous gas. Mild exposure

causes malaise (indefinite feeling of sickness), ringing in the

ears, fatigue, nausea and pressure in the chest which can be

relieved by exposure to fresh air. Moderate poisoning, causes

weakness, vomiting, pain just above the stomach, chest pain,

diarrhea and dyspnea i.e. difficulty in breathing. Symptoms of

severe poisoning leading to unconsciousness and death

resulting from pulmonary edema i.e. fluid in lungs, occurs

within a few hours to several days, depending upon the

intensity of the poisoning.

53. Thus, after it enters the body, aluminium phosphide

has to react inside the body to release hydrogen phosphide,

which is lethal. As noted above, symptoms of severe

poisoning followed by death, occur within a few hours. It is

obvious that aluminium phosphide is not as lethal as say

cyanide which causes instant death.

54. The learned Trial Judge has totally ignored the

toxicological literature on the subject and had he considered

so, it would have dawned on him, that it was an obvious case

of death by poisoning, resulting from consuming aluminium

phosphide, where symptoms preceding the death are

noticeable not in seconds or minutes, but after some time.

Obviously, Laxmi consumed, herself or was fed forcefully,

aluminium phosphide some time prior to 11:00 AM and not

11:00 AM as claimed by Rajo. We may emphasize over here

that though there are strangulation marks on the neck of

Laxmi, death is not the result of asphyxia as per the post-

mortem report.

55. The toxicological literature on the subject

conclusively rules out poison being administered to Laxmi at

11:00 AM as admittedly at said point of time her condition was

extremely critical; even as per Rajo, Laxmi was breathing her

last. The aluminium phosphide consumed or fed to Laxmi was

an event which preceded, by at least an hour or so.

56. The ligature marks on the neck of Laxmi are moving

upward, suggestive of hanging and not strangulation, in which

case the ligature marks traverse horizontally on the neck.

57. As per Rajo, her sister was noted by her in a sitting

position on the bed, with a noose around her neck and the

other end of the rope tied to the ceiling fan. As per the

defence, Laxmi had committed suicide by not only consuming

aluminium phosphide but reinforcing her intent by hanging

herself.

58. Death of Laxmi is by poisoning and not hanging. As

held above, the poison had entered Laxmi‟s body at least an

hour prior to 11:00 AM and thus, this is another nail in the

testimony of Rajo that her sister was poisoned at 11:00 AM.

59. There is yet further intrinsic evidence to disbelieve

Rajo. Admittedly, to the police, she disclosed her version of

her sister‟s death on 27.7.2002, but she claims to have rung

up her parents house and, to quote her testimony: from the

room I made a telephone call at my parents house telling at

my house that my sister has been killed. Rajo claims to have

lost her moorings after her sister died, and we believe her by

giving her the benefit of being disturbed on the death of her

sister, who also happened to be her sister-in-law and both

were living in the same house after marriage and hence

shared a very strong emotional bond. But, Rajo claims to have

informed her parental house that Laxmi had been killed. She

does not claim to have informed that Laxmi had died.

Information to parents that their daughter has died would ring

a different alarm bell vis-à-vis the information that their

daughter has been killed. Rajo‟s brother PW-4 Vijay Kumar

and her mother Jaggo PW-5 have affirmed having received a

telephone call from Rajo at 11:00 AM. Both claim that Rajo

informed that Laxmi had been killed. Hari Singh PW-2, father

of Rajo claims to have received the information about his

daughter‟s death at 3:00 PM when he reached his house. He

claims that thereafter he reached Delhi, by which time the

police had seized the dead body of Laxmi. It is apparent that

PW-2 would have spoken to his wife and his son at Delhi with

respect to Laxmi‟s death. He would have obviously spoken to

Rajo as well, a fact admitted by him. He claims that Rajo was

disturbed and did not tell him anything. We give benefit of

said fact. But, it is unbelievable, that his wife and son did not

tell him that when Rajo rang up, she informed that Laxmi had

been killed. This makes very relevant the statement made by

Hari Singh to SI K.K.Mishra on 21.7.2002, contents whereof

have been noted in para 19 above.

60. It is apparent that Hari Singh told the police that he

was suspicious of the conduct of the in-laws of his daughter,

because in the past they had been demanding money from

him for commencing some business and that, after consuming

alcohol, husband of Laxmi used to verbally abuse and beat

her. It is of significance that Hari Singh did not tell SI

K.K.Mishra on 21.7.2002 that Rajo had informed his wife and

son that Laxmi had been murdered.

61. It appears to be a case where Rajo stated wrong

facts in her statement Ex.PW-1/A recorded on 27.7.2002 and

the possibility and probability of her doing so, being influenced

by her parents, cannot be ruled out. It may be noted that

during cross examination Rajo admitted that the day after her

sister died, she had been living in the house of her parents.

62. During cross examination, Rajo admitted that the

death of Laxmi spread in the vicinity immediately, and ladies

from the neighbourhood reached the house. The conduct of

Rajo in not telling even a single lady that her sister has been

murdered, in the manner alleged by her, is also indicative of

the fact that with the passage of time, Rajo spun out a

concocted version.

63. We are thus left with the conduct of the appellants

in not informing the police and taking the body of Laxmi to the

cremation ground for cremation.

64. No doubt, the said conduct is suspect and a

possible inference can be drawn that the in-laws of Laxmi were

wanting to hide something.

65. But, conduct is weak evidence because it is based

on presumptive logic. By itself, as the only incriminating

circumstance, conduct is insufficient wherefrom the only

inference possible is that of the guilt of the accused; ruling out

the innocence.

66. Though irrelevant to state, lest the reader of the

judgment forms an opinion that we are entering upon surmises

and conjectures, but it may have happened that the in-laws of

Laxmi, being aware that even a suicide may create problems

with the police, were ill advised to cremate the body of Laxmi

without informing the police. On said premise, the conduct

which prima facie appears to be of a guilty mind can be

explained as the conduct of a mind under fear.

67. It is settled law that howsoever strong a suspicion

may be, it cannot take the place of proof and that the

prosecution has to cover the journey from may be, through

could be, to shall be.

68. It would not be out of place to note that the

prosecution has made no attempt to find out as to who

purchased aluminium phosphide and from which place. Had

an attempt been made to do so, some light would have been

thrown on the issue, for if Laxmi was found to have purchased

aluminium phosphide, said fact would have been relevant.

Similarly, if any of the accused had purchased aluminium

phosphide and had failed to give a satisfactory explanation as

to why he/she did so, said fact would have thrown

considerable light on the issue. Further, the charge against

the accused was of having injected poison to Laxmi and no

syringe has been recovered by the police.

69. We accordingly hold that the evidence on record

does not justify the acceptance of the testimony of Rajo,

whose testimony does not inspire any confidence and stands

contradicted by evidence brought on record, pertaining to

Sunder being absent in the house. The toxicological

Jurisprudence makes it highly improbable that Laxmi was fed

or administered aluminium phosphide at 11:00 AM. These two

facts totally demolish the manner of commission of the crime

as alleged by Rajo. Thus, all the appellants are entitled to be

acquitted for the offence of having murdered Laxmi.

70. Pertaining to the offence punishable under Section

498A IPC, we note that the brother, mother and father of the

deceased as also Rajo have made general allegations of

money being demanded by the in-laws of Rajo and Laxmi for

commencing some business. No date or even the month when

the amounts were paid have been spoken of. What has been

said by Hari Singh is that once he gave Rs.20,000/- in the year

1997 and the second time he gave Rs.20,000/- in the year

2001. The allegations of harassment, mental and physical, are

vague. We find that the learned Trial Judge has not considered

this aspect of the matter. In fact, the impugned judgment has

totally centered itself on the question, whether the deceased

was murdered. We find no discussion whatsoever in the

impugned judgment pertaining to the commission of the

offence punishable under Section 498A IPC. Thus, the

appellants are entitled to be acquitted of the charge framed

against them for having committed the offence punishable

under Section 498A IPC.

71. The charge of destruction of evidence as framed is

inextricably linked with the offence punishable under Section

302 IPC. Since the charge for the offence punishable under

Section 302 IPC has failed, the charge pertaining to destruction

of evidence to hide the offence of murder must fail.

72. The appeals are allowed. The impugned judgment

and order dated 11.7.2005 is set aside. The appellants are

acquitted of the charges framed against them.

73. The appellants are on bail. Their bail bonds and

surety bonds are discharged.

(PRADEEP NANDRAJOG) JUDGE

(ARUNA SURESH) JUDGE May 11, 2009 dk/mm