Shyam Dev Yadav vs State
2009 Latest Caselaw 2230 Del

i.4
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Decision : 25th May, 2009

+                        CRL. APPEAL NO.823/2007

       SHYAM DEV YADAV                          ..... Appellant
               Through:          Ms.Purnima Sethi, Advocate.

                                 versus

       THE STATE NCT OF DELHI           ..... Respondent
                Through: Ms. Richa Kapoor, Advocate

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

       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. (Oral)

1. At 5:10 AM on 15.4.2000, DD No.34, Ex.PW-4/A, was

recorded by Const. Jaibeer PW-4 recording that Sumitra, wife

of the appellant, resident of Jhuggi No.CN-531 Rajasthani Basti,

Yamuna Pushta, had been murdered by her husband.

2. A copy of the DD entry was handed over to SI

Pradeep Kumar PW-17, who accompanied by ASI Satpal, HC

Ramavtar, Const. Kender Pal and Const. Jatinder, proceeded to

the place where the crime had been committed.

3. Inspector Ashok Kumar Saxena PW-20 posted as

the SHO of the police station, was given telephonic information

about the crime. He too proceeded to the spot and reached

contemporaneously when SI Pradeep Kumar and the other

police officers reached the place of the occurrence.

4. The police officers met Narayan Mandal PW-11, the

father of the deceased named Sumitra, who informed that he

was a resident of a jhuggi in the same slum and that the

appellant was married to his daughter and the appellant used

to quarrel with her. That around 5:00 AM, Sapna, the elder

daughter of the deceased came crying to his jhuggi. She

informed that her mother was bleeding through the nose and

had been killed by her father. The statement, Ex.PW-11/A of

Narayan Mandal was recorded by Inspector Ashok Kumar

Saxena, who made an endorsement, Ex.PW-20/A, thereon and

by 7:00 AM forwarded the statement and the endorsement for

an FIR to be registered.

5. At the police station, HC Dharambir Singh PW-1,

received the statement and the endorsement afore-noted at

about 7:15 AM and registered the FIR Ex.PW-1/A at 7:15 AM.

6. The dead body of the deceased was sent for post-

mortem to the Civil Hospital Mortuary, Subzi Mandi. Dr.Ashok

Jaiswal PW-6, conducted the post-mortem and prepared the

report Ex.PW-6/A noting therein the under-noted external

injuries:-

"There was a brownish ligature constinction abrasion mark with bruised margins seen almost horizontally encircling the upper middle part of neck placed 5 cm below chin in midline with neck in extended position, width in front is 1.8 cm. On left side it is seen running horizontally placed 3.5 cm below angle of mandible to back of neck, width 1.7 to 1.8 cm, dark brown with bruising in, with contused margins on right side. It was again running horizontally, 3.3 cm below angle of mandible meeting with the mark on left side at the nape of neck, dark brown in colour with bruise margin 1.6 to 1.8 cm. No ligature material in situ. No other injury seen on the body."

7. The internal injuries noted were, haemorrhage of

the subcutaneous tissue of the right parathyroid region. He

opined that the cause of the death was asphyxia consequent

to ligature constriction of neck and that the same was

sufficient to cause death in ordinary course of nature. It was

opined that the deceased had died approximately 36 hours

prior to the time when the post-mortem was conducted. It is

apparent that as per the post-mortem report the deceased was

strangulated between 2:00 AM to 3:00 AM in the intervening

night of 14th - 15 April 2000.

8. At the spot, the police personnel, namely, SI

Pradeep Kumar and Inspector Ashok Kumar Saxena conducted

the investigation when they reached the jhuggi somewhere

around 5:15 AM. A rope was seized, as recorded in the seizure

memo Ex.PW-11/B. Ajay Kumar PW-2, was summoned who

took photographs Ex.PW-2/1 to Ex.PW-2/9; negatives whereof

are Ex.PW-2/10 to Ex.PW-2/18. Inspector Ashok Kumar Saxena

prepared the rough site plan Ex.PW-20/B at the pointing out of

Narayan Mandal.

9. The appellant was not to be found in his jhuggi in

the early hours of dawn. He could not be found for days,

weeks and months thereafter. Proceedings were initiated

under Section 82 Cr.P.C. to have him declared a proclaimed

offender. The appellant was apprehended on 17.9.2000 at

about 9:55 PM, as recorded in the arrest memo Ex.PW-16/B.

10. The investigating officer recorded the statement of

Kumari Sapna PW-12 and three neighbours Sanjay Kumar PW-

7, Abhimanyu PW-8 and Ram Prakash Mandal PW-10. As per

said statements, the appellant was present in his house in the

intervening night of 14th - 15th April 2000.

11. Needless to state, the case of the prosecution

hinged upon the testimony of PW-7, PW-8, PW-10, PW-11 and

PW-12. It not being in dispute that the deceased died due to

the cause as opined in the post-mortem report Ex.PW-6/A.

12. Sanjay Kumar PW-7, a resident of jhuggi No.C-

9D/310, Rajasthani Basti, Yamuna Pushta deposed that on the

night intervening 14th - 15th April 2000, at about 3:30 AM he

came out of the jhuggi for urination and saw the appellant

coming out of his jhuggi and proceeding at a fast pace towards

the main road. He returned to his jhuggi and slept. Next

morning he learnt that Sumitra, wife of the accused had died.

13. On being cross-examined, Sanjay Kumar stated that

he saw the appellant from a distance of 8 - 10 paces. He had

seen the appellant by face. His jhuggi and that of the

appellant were opposite to each other and he heard no noise

from the jhuggi of the appellant. His statement was recorded

by the police one or two days after the crime was committed.

He stated that he did not tell other jhuggi dwellers about the

death of the wife of the appellant. He denied the suggestion

that he did not see the appellant going away in the night.

14. Abhimanyu PW-8, a resident of jhuggi No.C-9D/70,

Rajasthani Basti, Yamuna Pushta, deposed that there was a

jagran (prayer meeting) at the temple of Goddess Kali in the

intervening night of 14th - 15th April 2000. After the jagran,

they calculated the expenditure, which exercise was

completed by around 1:30 AM. Appellant came there at that

point of time. A person named Shakil expressed desire to take

liquor. He i.e. Abhimanyu took Rs.40/- from someone and

handed over the same to the appellant, requesting him to

bring liquor. Appellant brought two pouches of liquor. All

three i.e. the appellant, Shakil and he i.e. Abhimanyu

consumed liquor. The appellant left for his jhuggi. He i.e.

Abhimanyu requested the appellant not to quarrel with his wife

as it was in his knowledge that the appellant had quarreled

with his wife at 11:00 PM. Next day through Sapna he learnt

that the appellant has fled after killing his wife.

15. In cross-examination he stated that the jhuggi of

the appellant and his jhuggi are at a distance of about 200

yds. He was confronted with his statement Ex.PW-8/DA

recorded under Section 161 Cr.P.C. in which it was not

recorded that the appellant was roaming outside when they

were calculating the expenditure and the collection. It was

also not recorded therein that Shakil expressed a desire to

take liquor. His statement that Sapna had told that the

appellant had killed her mother and ran away was also not

mentioned therein.

16. Ram Prakash Mandal PW-10, deposed that he was

running a shop in jhuggi No.C-19A/313, Rajasthani Basti. He

was present in his jhuggi at 5:00 AM on 15.4.2000. He heard a

noise and saw people collecting outside the jhuggi of the

appellant. He saw Sumitra, wife of the appellant, dead in the

jhuggi. People were saying that the appellant had killed his

wife and had fled. Narayan Mandal, father of Sumitra was

present. He requested him to inform the police post. He

informed the police. He identified the dead body of Sumitra

and his statement was recorded by the investigating officer.

17. Nothing of worth has been brought out in the cross-

examination of the witness to discredit him and hence we do

not note the general questions put to PW-10 during cross-

examination.

18. Narayan Mandal PW-11, deposed that Sumitra was

his daughter and was married to the appellant about ten years

ago. She and the appellant were residing at jhuggi No.C-

9B/445, Rajasthani Basti, Yamuna Pushta. Two daughters and

a son were born to them. The son was handicapped and was

suffering from polio. He had died. The elder daughter of his

daughter, was named Sapna, who was aged 7 - 8 years when

the crime took place. The younger daughter Priya was aged

about 2 years. Appellant used to ply a rickshaw and was a

habitual drinker and a gambler. His daughter used to clean

utensils in kothis. The appellant used to spend his earnings on

drinking and gambling and used to frequently quarrel with his

daughter and used to demand money from her. In the night

intervening 14th - 15th April 2000 at about 11:00 PM the

appellant quarreled with his daughter and he intervened and

pacified them. At around 4:00 - 5:00 AM Sapna came to his

house. She was crying and told him that her father had killed

her mother and blood was coming out from the nose of her

mother. He went to the jhuggi of the appellant and saw his

daughter dead. She was bleeding from her nostrils. He tried

to trace the appellant but could not do so. Prakash Mandal

came at the jhuggi and he requested him to inform the police.

The police and the SHO came. His statement Ex.PW-11/A was

recorded. He signed the same at point „A‟. A photographer

photographed the jhuggi. A rope found inside the jhuggi was

seized in his presence as recorded in the memo Ex.PW-11/B

which was signed by him at point „A‟. The dead body was

removed to the Subzi Mandi Morturary for post-mortem. After

the post-mortem the dead body was handed over to him for

cremation. He deposed that during the intervening night of

14th -15th April 2000 there was a jagran in the temple of

Goddess Kali. He was also present there. At about 1:00 AM,

after the jagran was over, those present were counting money.

Abhimanyu asked the appellant to bring liquor and gave him

Rs.40/-. Appellant brought two pouches of liquor. He left the

temple and went to his jhuggi. One Sanjay told him that when

he came out of his jhuggi at around 3:30 AM for urinating he

saw the appellant going away.

19. PW-11 was cross-examined. He stated during

cross-examination that his jhuggi was nearby the jhuggi of the

appellant. He admitted that in his statement made to the

police he had not informed that he had intervened in a fight

between the appellant and his daughter at 11:00 PM and had

pacified them. He admitted that in his statement recorded by

the police it was not mentioned that Abhimanyu had given

Rs.40/- to the appellant to purchase liquor. He denied that he

was improving upon his statement made to the police to

implicate the appellant.

20. Kumari Sapna PW-12 was first examined by the

Court to understand whether she can intelligibly understand

the questions put to her. On recording a satisfaction that the

child witness was capable of understanding the questions put

to her, her statement was recorded without oath. She stated

that the appellant was her father and was a rickshaw puller.

Her mother used to clean utensils in houses. Her father used

to spend money on liquor and gambling and in the night used

to demand money from her mother. Upon refusal, he used to

quarrel with her mother. On the date of the incident, her

father quarreled with her mother at night. Out of fear she

slept. She got up when her younger sister started crying and

saw her mother bleeding from her nose. Her father had fled.

She went to the house of her maternal grandfather and told

him about the incident. Her maternal grandfather came to the

jhuggi.

21. She was cross-examined. Relevant would it be note

that a suggestion was given to Kumari Sapna, a suggestion

which she denied; the suggestion being, that the appellant had

returned from work in the early hours of the morning at about

4:00 or 5:00 AM.

22. SI Pradeep Kumar PW-17 and Inspector Ashok

Kumar Saxena PW-20 deposed about having reached the place

of occurrence after DD entry No.34 was recorded at 5:10 AM in

the morning. They deposed that the appellant was not to be

seen. They deposed about recording the statement of the

father-in-law of the appellant and the same being sent for

registration of an FIR. They deposed that the rope Ex.P-1 was

seized at the spot. They deposed about the investigation

conducted at the spot and as noted herein above in paras 8-

10. PW-20 deposed about the appellant being absconding and

his being declared a proclaimed offender and the appellant

being arrested on 17.9.2000.

23. Relevant would it be to note that no suggestion was

given to the police officers that the appellant was present at

his jhuggi when they came to the spot.

24. Vide impugned judgment and order dated

12.7.2007, the learned Trial Judge has convicted the appellant,

holding that the testimony of PW-7, PW-8, PW-11 and PW-12

established that the appellant was present in his jhuggi in the

intervening night of 14th - 15th April 2000 and was seen leaving

the jhuggi at around 3:30 AM and soon thereafter his wife was

found murdered. It has been held that being last seen with his

wife in the jhuggi and the conduct of absconding were

sufficient to convict the appellant for the offence he was

charged of.

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

it is strange that neither PW-7 nor PW-8 nor PW-11 heard any

cries of the deceased. It is urged that when a person is

strangulated there is bound to be resistance and some kind of

gargling sound, which would attract people in the

neighbourhood.

26. We fail to understand as to where would this

argument anchor? That the deceased died inside her jhuggi

and was strangulated is a matter of fact spoken by the dead

body itself and the place wherefrom the dead body was

recovered. It is not in dispute that the cause of death of the

deceased was asphyxia resulting due to strangulation and that

the place of death is the jhuggi where the deceased resided

with the appellant. The place of death has not been

challenged evidenced by the fact, that not a suggestion has

been put to any witness that Sumitra‟s body was not found

inside the jhuggi.

27. Obviously, nobody heard the cries of the

unfortunate woman when she was being strangulated. The

reason is not which cannot be ascertained. Wife beating in

jhuggis is a day and night phenomenon in the metropolitan

city of Delhi. The cries of anguish of a woman do not attract

any summons for rescue in the metropolitan city of Delhi,

where the concern of everyone is to earn his bread and butter.

Human values have no place in such a system.

28. The minor variations in the testimonies of the

witnesses noted herein above, are of hardly any significance

and consequence. Minor embellishments and improvements

which did not impinge upon the substratum of the testimony of

a witness are irrelevant. The reason is obvious. There is

always a hiatus between the date of a crime and the date

when the witness appears in the Court. With passage of time,

either memory fails or it does happen that a witness, which

keeps on thinking about a particular incident starts adding

some marginal facts.

29. We eschew reference to the part of the testimony

of the father of the victim wherein he has stated that he had

witnessed a quarrel between the appellant and the deceased

at 11:00 in the night. Said statement does not form part of his

statement recorded by the police.

30. But, we may note that in his statement recorded by

the police he has referred to a quarrel between the appellant

and his daughter at 11:00 PM in the night. The only

improvement made by him, while deposing in Court, is that of

intervening in the quarrel. What is relevant is that PW-8 and

PW-11, both have deposed of the appellant‟s presence at the

temple of Goddess Kali at 1:30 a.m. i.e. in the middle of the

night intervening 14th - 15th April 2000 and thereafter going to

his jhuggi.

31. The suggestion of the appellant‟s counsel to Kumari

Sapna PW-12 that the appellant returned home in the early

hours of the morning after having completed his work, is

suggestive of the fact that the appellant took a plea of alibi.

The testimony of PW-8 and PW-11 disproves the theory of alibi.

32. Kumari Sapna PW-12 has corroborated the

testimony of PW-8 and PW-11 with reference to the presence

of the appellant in the jhuggi in the intervening night when the

offence took place. Sapna has been subjected to cross-

examination and has withstood the same.

33. The evidence on record establishes the following:-

(i) The appellant was present in the jhuggi along with

his wife in the late hours of the night intervening

14th - 15th April 2000.

(ii) The wife of the appellant was found dead at around

5:00 AM.

(iii) The appellant was absconding and continued to

remain absconding for over five months when he

was arrested on 17.9.2000.

(iv) The deceased died due to strangulation.

   (v)        The post-mortem report Ex.PW-6/A evidences that

              the        deceased   was     strangulated   somewhere

              between 2:00 AM to 3:00 AM.

34. The chain of circumstances is complete, wherefrom,

the only inference possible is that of the guilt of the appellant,

for the reason, he has not explained as to what actually

happened.

35. The theory of last seen evidence requires that

where the deceased is seen alive with an accused and so soon

thereafter the deceased is found dead or injured and there is

no possibility of any other person accessing the deceased,

unless the accused explains the circumstance under which the

deceased sustained the injuries or establishes that the

deceased was alive when he and the deceased parted

company, the accused must own up the guilt. It was held in

the decision reported as AIR 2003 SC 3131 Mohibur Rahman

Vs. State of Assam; there may be cases, where on account of

close proximity of place and time between the event of the

accused having been last seen with the deceased and the

factum of death, a rational mind is persuaded to reach an

irresistible conclusion that either the accused should explain

how and in what circumstances the deceased suffered death

or should own the responsibility for homicide.

36. A feeble attempt has been made to argue that

obviously something would have happened which motivated

the appellant to do what he did. The argument is suggestive

of a quarrel between the appellant and his wife. Obviously,

the attempt is to try and bring the case within Exception IV to

Section 300 IPC and take the trajectory of the offence from

Section 302 IPC to Section 304 Part-I IPC.

37. We find no evidence of a sudden quarrel. No

witness has deposed to any sudden quarrel. In his statement

under Section 313 Cr.P.C. the appellant has not justified his

action by pleading that he acted on an impulse and upon a

sudden quarrel.

38. The appellant has been sentenced to undergo

imprisonment for life.

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

Judge while convicting the appellant for the offence punishable

under Section 302 IPC as per judgment and order dated

12.7.2007.

40. We concur with the sentence of imprisonment for

life imposed by the learned Trial Judge upon the appellant.

41. The appeal is dismissed.

PRADEEP NANDRAJOG, J.

INDERMEET KAUR, J.

MAY 25, 2009 Dharmender