Sanjay Kumar Jain vs State
2009 Latest Caselaw 4623 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                Reserved on : 30.10.2009
%                                            Date of decision : 12.11.2009


+                             Crl. A. No. 63 of 1997


SANJAY KUMAR JAIN               ...    ...     ...    ...      ...    ...APPELLANT
                                Through : Mr. Ujjal Pal Singh &
                                          Mr. Baljeet Singh,
                                          Advocates.


                                    -VERSUS-


STATE               ...   ...     ...    ...     ...    ...      ...    .RESPONDENT
                                Through : Mr. Sunil Sharma,
                                          Advocate.


CORAM:

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE AJIT BHARIHOKE


1.        Whether the Reporters of local papers
          may be allowed to see the judgment?               No

2.        To be referred to Reporter or not?                No

3.        Whether the judgment should be
          reported in the Digest?                           No


SANJAY KISHAN KAUL, J.

1. The appellant, Sanjay Kumar Jain, was married to late

Smt. Anju Jain (deceased) on 20.02.1990 whereafter they

were residing in House No. 2803, Gali No. 6, Chander

Puri, Kailash Nagar, Delhi. It is the case of the

prosecution that the deceased was being harassed for

insufficient dowry and on 10.04.1991 at 8:50 p.m., a call

was received from one Nanak Chand, PW - 1, about the

murder of the deceased at the police control room and

accordingly D.D. Entry No. 11A was recorded. On

reaching the spot, the police party found that SI Budh

Sain along with police staff were already present. The

premises were found locked from outside. A bunch of

keys were provided by the neighbour, Sadhna, PW - 8

and one of the keys fitted in the lock whereupon on

climbing to the first floor, where the appellant and

deceased were residing, the dead body of the deceased

was found lying on the floor. At the scene of the crime,

broken bangles were lying and a hair strand was also

found on the chest of the deceased. Rukka was sent by

making endorsement on the D.D. to the police station

and FIR No. 83 of 1991 was accordingly registered

(Exhibit PW - 21A). The inquest proceedings were got

conducted through the area SDM and the spot was got

photographed whereafter the body of the deceased was

sent for post-mortem.

2. The post-mortem was conducted by Dr. L.K. Barua, PW -

20, who in his report (Exhibit PW - 20/A) found that there

were 10 injuries on the body, which were ante-mortem in

nature and the injuries on the neck were opined to have

been caused by use of blunt force and rope like material.

Some of the injuries were stated to be possible by friction

against rough surface. The cause of the death was

opined as asphyxia following strangulation by rope like

material and the injuries were sufficient to cause death in

the ordinary course of nature. The doctor preserved /

sealed the cloth, viscera, scalp hair and vaginal swab and

handed over to the police for chemical analysis. The

parents of the deceased being Mohan Lal, PW - 2 and Raj

Bala, PW - 3 made statements to the police about dowry

harassment of the deceased. During the course of the

investigation, the appellant was arrested on 13.04.1991

whereafter he made a disclosure statement (Exhibit PW -

12/A), which led to the recovery by the police of one

cricket wicket and one cotton string, which are stated to

be the weapons of crime causing asphyxia. The

appellant also got recovered some jewellery items from a

pit, which were found missing from the person of the

deceased. These ornaments were identified by the

parents of the deceased as those belonging to the

deceased. The appellant was consequently charged

under Section 302 of the Indian Penal Code (for short,

„IPC‟) on 18.02.1992 and an alternative charge under

Section 304B of the IPC was also framed subsequently on

13.01.1993. The appellant pleaded not guilty and

claimed trial.

3. Learned Additional Sessions Judge in terms of the

impugned judgment dated 16.01.1997 held the appellant

guilty of offences punishable under Section 302 of the

IPC and, thus, found no necessity to discuss the

alternative charge under Section 304B of the IPC and in

terms of the impugned order of sentence dated

20.01.1997 sentenced the appellant to life imprisonment

and a fine of Rs.20,000/- and in default of payment to

undergo sentence of one year RI.

4. The impugned judgment has considered the testimony of

various witnesses including those of the parents of the

deceased PW - 2 and PW - 3, who deposed to the

complaints by the deceased of the appellant harassing

her for insufficient dowry. PW - 2 deposed that he had

paid Rs.10,000/- at one time and Rs.15,000/- at the other

time to help the appellant in his business but the

appellant is stated to have come into heavy debt as he

could not profitably carry on the tent business whereafter

he started harassing the deceased. On being informed of

the murder of his daughter, he rushed to the house alone

where he found his daughter lying on the first floor of the

house and the ornaments were missing, which were

subsequently recovered by the police. The articles were

identified as those of the deceased subsequently by PW -

3. The testimony of PW - 3 is also on the same lines.

5. Ms. Sadhna, PW - 8, was residing with her family in house

No. 9/2803 and there is stated to be only one house

between her house and the house of the appellant. On

the fateful day at about 7.00 p.m., she heard some noise

and came out of her house when Baldev, PW - 12, the

younger brother of the appellant approached her with a

request for keys from her house to the staircase leading

to the first floor of the house as his knocks at the door

were eliciting no response. It is from one of those keys

that the door of the ground floor was opened whereafter

on first floor, the deceased was found lying dead. PW -

12 became hostile.

6. PW - 4, 5 and 6 were independent witnesses, out of

which PW - 6 turned hostile. PW - 4 joined the

investigation at the instance of the police when the

appellant was arrested. The lock of the gate of the house

was opened by the appellant with a key from his pocket

which lock and key were seized and were taken into

possession vide memo Exhibit PW - 4/A. He has also

deposed to the recovery of the cricket wicket and rope at

the behest of the appellant, which were seized vide

memo Exhibit PW - 4/C. The witness has deposed that

the appellant led to across the railway line near the

temple and got recovered the ear-ring, ring and nose-pin,

which were wrapped in a piece of paper and buried in a

pit and these articles were also seized vide memo Exhibit

PW - 4/D. The witness has further deposed that two hairs

of the appellant after uprooting the same from the head

were taken possession vide memo Exhibit PW - 4/E. The

witness also stated that PW - 5, Sukhmal Chand was

known to him earlier. PW - 5 had also joined the police

party and deposed on similar lines as PW - 4. ACP, Ravi

Dutt, PW - 22 is the I.O., who had gone to the site of the

crime and had interrogated the appellant.

7. PW - 20, the doctor on being shown the cricket wicket

(stump) and the rope opined that the ligature marks

found on the deceased could be possible with the same.

The wounds, thus, stated to have been caused by rolling

of the wicket on the neck. The doctor also opined that

the string was of sufficient strength as it had been put to

strict test.

8. A perusal of the impugned judgment shows that the case

of the defence was that the deceased had been

murdered by some other persons and the police could

not work out the murder and arrest the real culprits and

had, therefore, framed the appellant. The learned

Additional Sessions Judge found the testimony of PW - 8

reliable. The said witness had come out and handed over

the bunch of keys at the behest of the brother of the

appellant, PW - 12. Learned Additional Sessions Judge

has taken into consideration the MLC (Exhibit PW - 14A)

of the appellant. The appellant had been taken for

medical examination on 13.04.1991. The medical report

shows the following injuries :-

"1. Scratch mark over Rt. knee and Lt. knee joint (Brown coloured)

2. One small bruise (blackish red) over exterior aspect of Lt. wrist joint.

3. One scratch mark (pin point) reddish over radial margin of Rt. thumb.

4. Linear 2 - 3 pinkish bruise, 5 - 6 cms below Rt. inperscapular region.

5. Small irregular 1 - 2 pinkish bruise over Lt. scapular region."

9. The appellant gave no explanation as to how these

injuries had been caused or where he did receive them.

The injuries are mainly on the hands and knees and,

thus, the trial court found that they directly tallied with

the injuries on the neck portion of the deceased

strengthening the case of the prosecution that the

deceased had been strangulated by the appellant.

10. In a nutshell, the following factors were found by the trial

court for believing the story of the prosecution in

convicting the appellant :-

(i) The deceased had suffered injuries mentioned in the post-mortem report (Exhibit PW - 20/A) caused by use of cotton string and cricket wicket (stump).

(ii) The cotton string and cricket wicket (stump) were got recovered by the appellant.

(iii) The deceased had been in the habit of wearing ornaments in the ears, nose and fingers, which were found missing from her dead body, which were got recovered by the appellant from a pit.

(iv) The place of recovery was not directly accessible to any other public person and the appellant had special knowledge of where he had placed the ornaments in a pit.

(v) The premises had been found locked and had been accessed through the key provided by the appellant from his pocket and access through staircase was found bolted from inside, thus, the premises had been locked from outside and no one else except the appellant could have access to the premises.

(vi) The appellant had absconded from 10.04.1991 to 13.04.1991 till he was arrested.

(vii) Injuries found on the body of the appellant as per MLC (Exhibit PW - 14/A), which were

unexplained by the appellant at any stage including in the statement under Section 313 of the Code of Criminal Procedure (for short, „Cr.P.C‟).

(viii) Injuries on the appellant tallied with the nature of injuries and the manner of causing death to the deceased.

11. Learned counsel for the appellant sought to assail the

judgment, once again pleading that the appellant was

being fixed for a crime which had been unsolved. The

weapon of the crime was stated to be a rope, yet no rope

like material was found on the aberrations on the neck

and at other places, no sign of rope was found. The said

plea can be straightaway negated on account of the

testimony of PW - 20 that the nature of rope used was

such that it did not leave any mark on the neck. Not only

that the rope was recovered at the behest of the

appellant and in such a situation, at best, it can be said

that the appellant had got recovered another rope. The

testimony of PW - 20 does establish that the wicket was

certainly an instrument used for the crime by rolling it on

the neck and ultimately causing asphyxia, the body of

the deceased was found lying on the floor and the

asphyxia was caused by strangulation at the neck

whether by using hand, rope or the wicket. No doubt, as

noticed above, the rope shown by the prosecution was

eight inches long, but then if a person is lying on the

floor, the rope can be pressed on the neck.

12. Learned counsel for the appellant also makes a grievance

of no finger prints being taken from the piece of the

wicket and no report being made available of the hair

taken from the chest of the deceased as compared to the

hair from the scalp of the appellant. The DNA report had

not been filed in this behalf. In our considered view, this

fact itself cannot belie the story of the prosecution

though the availability of the DNA report would have

strengthened the prosecution story.

13. Learned counsel also sought to explain the injuries on the

person of the appellant by claiming that they were not

connected with the crime, but failed to give any

explanation as to why the appellant had not come forth

to give the reason and place of those injuries.

14. Learned counsel also seeks to make a grievance about

not taking into possession the key used earlier and the

non-production of Om Prakash from whom the father of

the deceased is alleged to have taken a loan to pay to

the appellant. The receipt for the purchase of jewellery

items is stated also not to be brought on record. In a

nutshell, it is pleaded that there is no link or chain

complete in the present case, which could give rise to

conviction.

15. Learned counsel also seeks to throw doubts on the

recoveries made through the appellant and submits that

in view of the observations of the Supreme Court in

Devinder Singh & Ors. V. State of Himachal Pradesh,

(2003) 11 SCC 488 where the recovery is doubtful, no

reliance can be placed on the same. Learned counsel

has also relied upon the observations of the Supreme

Court in Lakhwinder Singh V. State of Punjab, (2002) 10

SCC 295 to the effect that failure of the prosecution to

explain the injuries on the accused leads to the inference

that the prosecution has not disclosed the true genesis

and the manner of occurrence.

16. Learned APP for the State has, of course, defended the

impugned judgment.

17. On examination of the rival submissions, we find that it is

not in dispute that the present case is one of homicide.

The only question is as to who is responsible for the

homicide - the appellant or some person, who has not

been apprehended and the crime not solved. The plea of

the defence is that it is the case of an unsolved crime for

which the appellant has been roped in by the police. To

appreciate the plea, the circumstances surrounding the

crime have to be taken note of.

18. The testimony of PW - 2 and PW - 3 cannot be doubted

as they have withstood the cross-examination. The fact

that there was some tension arising from monetary

matters between the appellant and the deceased is, thus,

established. PW - 2 has deposed to the appellant‟s

suffering losses in the business which he had started of

tent property and for which, the said witnesses had also

given some assistance.

19. If the scene of the crime is carefully analysed, it is

obvious that there was no get-away passage for a third

person to have committed the crime and disappear from

the scene. The main access was found locked for which

the key was provided by the appellant. The other access

through the staircase was found bolted from inside.

Thus, the appellant alone had an access to the place of

occurrence, which factor itself is sufficient to prove his

guilt. The appellant has given no cogent reason for

disappearing from the scene for three days till he was

apprehended. A person, who has lost his wife, would not

make himself unavailable for three days without any

reason. It is on the apprehension of the appellant that

the recoveries had been made including the cricket

wicket (stump) and the rope. There can be some doubt

arising from the length of the rope, but then these are

recoveries made through the appellant of what

instruments he used in the crime. The doctor, PW - 20

has deposed about the nature of injuries on the neck,

which could have been caused by rolling of the wicket. It

is obvious that the murderer used force by climbing on

the chest of the deceased and strangulating her neck.

The deceased would naturally struggle and resist it and

consequently there would be injuries or marks on the

murderer. The appellant has been found to have a

number of injuries as per his MLC (Exhibit PW - 14/A)

when he was apprehended.

20. The significance of a statement made under Section 313

of the Cr.P.C. is that once the evidence which has to

come against the accused is available, an opportunity is

given to the accused to explain his side of the story. This

was an opportunity when the appellant could have

explained his absence and the injuries on his body. The

appellant failed to do so and, thus, there is no

explanation forthcoming as to the place and the cause

for the injuries found on the appellant. The nature of

injuries on the upper part of the body of the appellant

tally with the manner of committing the crime.

21. We draw strength from the judgments of the Supreme

Court in Dnyaneshwar v. State of Maharashtra, (2007) 10

SCC 445 and Raj Kumar Prasad Tamarkar v. State of

Bihar & Anr., (2007) 10 SCC 433 where the Apex Court

while dealing with the unnatural death of the wife in a

premises to which the outsider may not have any access

has held that it is for the husband to explain the ground

for unnatural death of his wife. The husband having

failed to do so was convicted under Section 302 of the

IPC. The factual matrix of these two cases is quite similar

to the present one.

22. The deceased being a married lady used to wear

ornaments. This fact is deposed by the parents of the

deceased. The deceased was found without any

jewellery. The jewellery items were got recovered by the

appellant and were identified by the parents of the

deceased as those belonging to the deceased. The place

of recovery being a pit was also such that it was not open

to everyone and the appellant knew the exact place

where these jewellery items had been buried.

23. In our considered view, the chain is complete insofar as

the nature of crime is concerned. The trial court has

rightly taken into account the manner of commission of

crime and the surrounding circumstances to convict the

appellant. We would once again refer to paragraph 10

hereinabove where the sequence has been set out by us

of the rationale of the trial court convicting the appellant.

If these points are read in toto, there is no break in the

chain or infirmity in the investigation, which does not fix

the responsibility of the crime at the door of the

appellant. We have no hesitation in coming to the

conclusion that the prosecution has proved the case

against the appellant beyond all reasonable doubt of

having committed the murder of his wife and the

impugned judgment of conviction and sentence suffer

from no infirmity.

24. We accordingly dismiss the appeal and direct the

appellant to surrender before the trial court within three

days to undergo the remaining sentence.

SANJAY KISHAN KAUL, J.

NOVEMBER 12, 2009                                     AJIT BHARIHOKE, J.
madan