Delhi High Court
Mritunjay Tiwari vs State on 7 September, 2009
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 2nd September, 2009
Judgment Delivered on: 7th September, 2009
+ CRL.A.241/2001
MIRTUNJAY TIWARI ..... Appellant
Through: Mr.K.K.Sareen with
Mr.Rajeev Ranjan &
Mr.Sunil Kumar, Advts.
versus
STATE ..... Respondent
Through: Ms. Richa Kapoor, APP.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the
Digest? Yes
INDERMEET KAUR, J.
1. D.D.No.25A Ex.PW-10/B was recorded in Police
Station Connaught Place to the effect that information had
been received from lady Const.Shashi Sharma PW-27 posted in
the PCR Division that a foul smell was emanating from house
No.16-E, Feroz Shah Road, New Delhi. This D.D. was marked
to ASI Randhir PW-18 who along with Const. Dayanand
reached the spot where he was joined by Inspector Niranjan
Singh PW-30, SI V.K. Sharma and H.C. Shahabuddin.
Deepanker Pandey PW-16 resident of 16-C Feroz Shah Road
who had also noted this foul smell was also present. This
house had been allotted to Sh.Ash Mohd. Ansari, a member of
Parliament, and this has surfaced in the testimony of Rakesh
Vij PW-9, Assistant Engineer, PWD, who had produced the
letter of allotment Ex.PW-9/A. The house was found locked
from both sides. The lock of the back entrance was broken
open; the door of the room from where the foul smell was
emanating was forcibly broken open; a dead body of a woman
lying upside down was noted on a double bed, the dead body
was de-composed and was wearing a printed saree and a
blouse. The photographer H.C. Harchand PW-22 was
summoned, who took 13 photographs of the scene of crime;
negatives of which are Exs.PW-22/A1 to A13 and the positives
of which are Exs.PW-22/A14 to A26.
2. Since it appeared to be a case of murder,
endorsement on the DD was made by PW-30 which was sent
through H.C.George Messey for the registration of the FIR
Ex.PW-13/B under Section 302 IPC. The special report was
sent through Const.Rajender Singh PW-24 to the senior
Officers and the Area Magistrate on 31.5.1995.
3. On inspection of the crime scene, some dry fruits,
a knife, a spoon, a tumbler, a muffler, a underwear and some
blood stains were noted on the head side of the double bed; a
diary was also found on the spot. All the aforestated articles
were seized, sealed and taken into possession. The blood
stained wooden portion of the bed was also seized after
cutting a piece from the side of the head. The dead body was
sent through PW-18 to the mortuary of the R.M.L. Hospital for
preservation as the same had not yet been identified. At the
time of the removal of the dead body a wrist watch had fallen
from the brassiere which was taken into possession vide
memo Ex.PW-10/B. The rough site plan Ex.PW-8/A was
prepared at the pointing out of Anil Arora; thereafter site plan
to scale Ex.PW-14/A was drafted by Mukesh PW-14.
4. The Investigating Officer recorded the statements
of various witnesses including Vishwa Nath PW-1, Aas Mohd.
Ansari PW-2, Parvez Ahmed PW-3, Vijay Kumar PW-6, Anil
Arora PW-8, Ved Pal PW-12, Deepanker Pandey PW-16 which
unfolded that on 25.5.1995 the accused Mirtunjay Tiwari, had
gone with his deceased wife Raj Kumari, to E-16, Feroz Shah
Road, the house of PW-2, which he often used to visit for the
purpose of getting employment for himself. On that day also
he had gone to his house hoping that he would accede to his
request and get him a job. At about 8.30 PM PW-2 gave
money to the accused to bring some food and ice-cream; he
i.e. the accused came back after purchasing the ice-cream at
about 10.00 PM. PW-2 was in the room where the television
and V.C.R. were on; his wife was also in the room; the room
was bolted from inside. On repeated knocking when PW-2 did
not open the door, the accused started pounding it which led
to an altercation between the husband and wife and so much
so that when PW-2 intervened, his wrist watch broke and fell
down; in this process shirt of the accused also tore. This watch
was lifted by the deceased Raj Kumari. Accused was pacified;
thereafter the accused and his wife retired for the night in the
adjoining room. This verbal duel between the husband and
wife had been witnessed by Ved Pal PW-12 who was chowkidar
posted at 16-B, Feroz Shah Road as also by H.C. Madan Lal
PW-17 who was the security guard posted in the adjoining
house of PW-16 at 16-C, Feroz Shah Road, New Delhi.
5. PW-6, working in the canteen of the Parliament
House, was the person who had arranged the television and
V.C.R. at the residence of PW-2 on 25.5.1995. For this purpose
Vijay Kumar had requested Anil Arora PW-8, which had
accordingly been installed on 25.5.1995. On the following day
i.e. on 26.5.1995, this television and V.C.R. had been taken
back by PW-8.
6. The further version of the prosecution is that on
26.5.1995 accused again approached PW-2 hoping to get a job
and they i.e. the accused and PW-2 proceeded to Rail Bhawan.
Since the shirt of the accused had been torn on the previous
night, he borrowed the shirt of PW-2. On their way back from
Rail Bhawan they purchased some fruits from Janpath from the
stall of Gaya Prasad PW-4. On reaching the house, PW-2
requested PW-3 to get a three-wheeler scooter as he i.e. PW-2
had to go to Gorakhpur and Bihar as the results of his bye-
elections were expected. At the time of leaving his house PW-
2 in the presence of PW-3 gave the keys of his visitor room to
the accused.
7. From the version of these witnesses, the role of the
accused as the possible culprit had surfaced. He was arrested
on 31.5.1995. He made a disclosure Ex.PW-28/A and pursuant
to his disclosure statement he got a blood stained knife and a
shirt recovered from under the water tank in the rear portion
of the house where the incident had occurred. The accused
further led the police team to his own residence at Katna
Pahari where in the presence of his landlord Om Prakash PW-
11, he got the blood stained shirt, which he had borrowed from
PW-2, recovered. He also produced a key of the Harison lock
which was purported to be the key of the visitors room which
PW-2 had handed over to the accused on 26.5.1995 when he
had left for Gorakhpur.
8. The father of the deceased Ved Pal has been
examined as PW-1. As per his version his son-in-law the
accused often used to visit PW-2 in the hope of getting a job.
On 25.5.1995 and 26.5.1995 his daughter Raj Kumari and the
accused did not return home; on inquiry from the accused on
27.5.1995 he was informed that his daughter had gone to
Bihar with PW-2.
9. Post-mortem on the deceased was conducted on
31.5.1995 by Dr.G.K.Sharma PW-10 who had opined the cause
of death as intracranial haemorrhage from fracture of skull
under legion no.1 consequent upon blunt force of impact;
fracture of skull and intracranial haemorrhage being ante-
mortem in nature. Time since death was reported to be four to
six days i.e. relating back to the intervening night of 25.5.1995
to 26.5.1995. The vaginal swab of the patient had been
preserved for ascertaining if any sexual act had been
committed; this has been testified by PW-10 on oath.
10. In his statement under Section 313 of the Cr. P.C.,
the accused has admitted that Raj Kumari, the deceased was
married to him. On 25.5.1995 they had visited the house of
PW-2; the accused had brought ice-cream at about 10.30 PM
on the direction of PW-2; the door of the room was opened
after repeated knocking; Raj Kumari was in the room with PW-
2 at that time; the television and the V.C.R. were on. As per
the accused a verbal duel took place between him and PW-2;
he denied that he retired in the adjoining room with his wife
after this incident; as per his version, he left the house of PW-
2 as PW-2 had undertaken to send his wife with his sister to
Bihar to attend the marriage of her sister-in-law. Defence of
the accused which is borne out from this statement as also
reiterated in the version of the witness DW-1 Paras Nath Tiwari
father of the accused is to the effect that on 26.5.1995 the
accused learnt that PW-2 had not gone to Gorakhpur and he
went to his house to check; at about 4.30 PM he saw PW-2
leaving in a TSR and he was told that his wife had already left
for Bihar. On 30.5.1995 when DW-1 returned from his village
he i.e. the accused was informed that Raj Kumari had not gone
to the village to attend the marriage of her sister-in-law; the
accused suspected foul play on the part of PW-2 and he
informed his father-in-law Vishwa Nath; before they could
lodge the report, on 31.5.1995 the accused was forcibly lifted
from his house, arrested and falsely implicated in the present
case.
11. The trial Judge had vide the impugned judgment
convicted the accused for the offence under Section 302 IPC.
This was admittedly a case of circumstantial evidence. The
following circumstances had been relied upon to sustain his
conviction.
i. Last seen theory i.e. the accused and the
deceased having been last seen in the company of
one another till 4.30 PM on 26.5.1995; reliance has
been placed on the versions of PW-2, PW-3 and PW-
1 to establish this circumstance.
ii. Recovery by the accused on 31.5.1995 of a key
of Harison lock which was the purported key of the
visitors room which PW-2 had handed over to the
accused at the time when he left for Gorakhpur;
substantiated by the report of the CFSL that this
key belonged to the lock which was used to lock the
visitors room of 16-E, Feroz Shah Road.
iii. Recovery by the accused on 31.5.1995 of a
torn blood stained shirt and a knife from beneath
the water tank behind 16-E, Feroz Shah Road which
contained blood group 'A' which was also the blood
group of the deceased.
iv. Recovery by the accused on 02.6.1995 of a
blood stained shirt from his tenanted house which
was the purported shirt given by PW-2 to the
accused; it was stained with blood group 'A' which
was the blood group of the deceased.
v. Recovery from the spot i.e. on 30.5.1995 of a
diary in the handwriting of the accused containing
his address which had led the police party to
initiate investigation against the accused.
vi. Report of PW-13 the CFSL Expert who had
opined that Q1,Q2 and Q3 i.e. the applications
written by the accused to the SHO were in his
writing.
vii. Motive of the accused to kill his wife as he had
suspected her to be having an illicit relationship
with PW-2.
12. All these factors had collectively been considered
by the trial Judge to return a finding of guilt against the
accused.
13. On behalf of the accused, it has been urged that
before addressing the court on the inconsistencies and
contradictions which have appeared in the version of PW-2 vis-
a-vis the testimony of other witnesses of the prosecution, the
circumstance of the accused being a humble man hailing from
a low socio-economic background, being pitted against an
influential and powerful politician i.e. PW-2 being a member of
the Parliament, has to be kept in mind. It is submitted that it
has come on record in the testimony of Inspector Niranjan
Singh PW-30 that PW-2 had surfaced in the scene on
04.6.1995 when he had straightway been admitted to the
R.M.L. Hospital and the anticipatory bail application filed by his
advocate had not been opposed by Inspector Niranjan Singh,
who had granted him a clean chit without any interrogation or
query when he was probably the most important person to
throw light on this controversy and the circumstances and the
manner in which death of Raj Kumari had occurred keeping in
view the fact that the dead body had been recovered from bed
room of PW-2; yet the Investigating Officer chose not to
oppose his bail application. It is urged that the statement of
PW-2 was recorded as a witness only on 14.6.1995 after a long
delay, giving him enough time to manipulate a strategy as per
his convenience. Attention has also been drawn to the
testimony of PW-6 wherein the Presiding Officer of the Court
had noted that PW-6 had been accompanied by certain
persons who were keeping a watch on the court proceedings
and on specific query it had transpired that these persons are
watching the court proceedings on every hearing on behalf of
Vishwa Nath, the father of the deceased. It is submitted that
the father of the deceased is a poor man and not even a
resident of Delhi; he is not in a position to engage any counsel
or solicit the services of persons who could keep a paravi on
the proceedings; all this was being done at the behest of PW-2.
It is submitted that it is in this background that the court must
appreciate the arguments advanced by the defence counsel.
Learned defence counsel has drawn the attention of this court
to the version of PW-12 and PW-17 who had apparently
witnessed the verbal altercation between the accused and his
wife Raj Kumari. It is submitted that as per the version of
aforesaid witnesses, this argument was not between the
husband and wife but it was an argument between the
accused and PW-2 and, in fact, PW-12 and PW-17 who were
both present there at that time do not whisper a word about
the presence of Raj Kumari as she was inside the room and
had not come out in spite of repeated knocking on the door by
her husband. It is submitted that the accused was in regular
employment with a private firm and this has come in the
testimony of DW-1 and is also evident from the letters Ex.DW-
1/1 and Ex.DW-1/2 written by his employer; there was no
occasion on his part to visit the house of PW-2 for the purpose
of employment; it is a concocted version; the real culprit is PW-
2 himself. It is submitted that PW-2 being a powerful and
influential politician and hailing from the same village as the
family of his wife, it was under his pressure that his father-in-
law, Vishwa Nath, PW-1 has deposed against him. It is argued
that this is a clear case where the investigation has been
carried out only at the behest and as per the convenience and
directions of PW-2; there is no reason as to why the accused
would have taken the life of his wife; there is, in fact, every
reason why PW-2 would have wanted to get rid of Raj Kumari.
He had physically exploited her and on the previous night i.e.
on 25.5.1995 PW-2 had been greatly annoyed at the reaction
of the accused and his daring to accost him which had led to a
verbal abuse between the two which became the reason to
teach a lesson to the accused and thus to implicate him for an
offence which had actually been committed by PW-2. It is
submitted that recovery of the blood stained shirt and knife
from the water tank from the rear of the house is doubtful not
having been witnessed by any public person; the torn blood
stained shirt purported to be of PW-2 recovered from the
house of the accused is also doubtful. The key of the lock
purported to have been handed over by the accused is again
suspicious as the personal search memo of the accused
Ex.PW-28/J shows that no key was found on his personal
search; this document is dated 31.5.1995; attention has also
been drawn to the seizure memo of key Ex.PW-28/B which is
also of the same day; it is argued that if the key was not
recovered from the personal search of the accused, how it
could be handed over to him subsequently; from where and
under what circumstances, has not been explained by the
prosecution. Accused had been forced to write the
applications Q1, Q2 and Q3 when he was in police custody; no
cognizance can be taken of the same; motive has also not
been proved.
14. We have perused the record and noted the
submission made by the learned defence counsel.
15. The circumstance of the accused having been last
seen in the company of the deceased has been reflected in the
versions of PW-2, PW-3 and PW-1. Aash Mohd. Ansari PW-2
is, in fact, the star witness of the prosecution and the version
of the prosecution is hinged, by and large on his testimony.
He had been allotted house E-16, Feroz Shah Road, New Delhi
in his capacity as a Member of Parliament. He has deposed
that after becoming an MP, Vishwa Nath had introduced his
son-in-law Mrtityunjaya Tiwari to him making a request to
recommend him for a job as he was without a job. The
accused visited him with his wife and his father-in-law on one
or two occasions for the said purpose. In the first week of April
his entire family had gone to his native village. PW-2 also used
to go for tour for his Bihar election programme and used to
remain out of Delhi for long period of time. He had deposed
that on 25.5.1995 after attending the Parliament session he
returned back to his Kothi; at his request Vijay who was
working in the canteen of Parliament House arranged for a
V.C.R. in the evening at about 10 to 10.30 PM. At about 8.30
PM Mirtunjay Tiwari had gone to bring some food for him which
he consumed at about 10.00 O' Clock in the room; thereafter,
Mirtunjay Tiwari and his wife i.e. the deceased had their
dinner. At about 10.30 PM, Mirtunjay Tiwari went out to bring
some ice-cream; since the V.C.R. was playing in the room, his
wife sat on the opposite sofa for watching movie; Mirtunjay
Tiwari returned back and knocked at the door; since the
television and V.C.R. were on at a loud volume it was only
after two or three repeated knocks that PW-2 opened the door.
This annoyed Mirtunjay Tiwari who started misbehaving with
his wife and so much so that PW-2 had to intervene;
meanwhile the shirt of Mirtunjay Tiwari tore and his wrist
watch fell down which was picked up by deceased Raj Kumari;
thereafter PW-2 retired to his room and the accused and his
wife retired to their separate room. PW-2 has further
deposed that at this time some persons who had heard noise
of this argument came to inquire about the incident but
returned back when they were told that this is a routine
husband wife dispute and the matter had been settled. In the
morning of 26.5.1995, PW-2 was again requested by the
accused for a job; since his shirt had got torn on the previous
night PW-2 had given him his badami coloured embroidered
shirt. They went to the Rail Bhawan where they met one
person by the name of Hajma. The Rail Minister was not there.
They went back to the Parliament House where Hajma wrote
out an application on behalf of the accused which was signed
by accused; another forwarding letter was also written by
Hajma on behalf of the accused. The said letters are Ex.PW-
2/A and Ex.PW-2/B. Thereafter PW-2 along with the accused
returned back to their kothi, on the way, since the accused had
informed PW-2 that his wife was fasting they went to Janpath
to purchase some fruits which included Bananas, Papayas and
Mangoes. On their return to the khothi, PW-2 after consuming
a Mango went to sleep in his room and the accused and
deceased wife retired in their room. PW-2 has further deposed
that in the evening at about 4 PM Vijay came to take V.C.R.
back. At 4.30 PM Parvez PW-3 a person who hails from his
constituency came to visit him in connection of his service. At
that time, PW-2 was leaving for Ghaziabad. He requested PW-
3 to bring a three-wheeler scooter for him; meanwhile the
accused and his wife also came to his room and he informed
them about this programme for Gorakhpur; in the presence of
PW-3 he i.e. PW-2, gave the key of the visitors room to the
accused and thereafter left in the three-wheeler scooter along
with PW-3 who accompanied him upto I.T.O. Thereafter PW-2
remained at Ghaziabad, then at his sister's house at
Saleempur, District Deveria; between 30.5.1995 up to
2.6.1995 he remained at Kailashpuri District Behraich in
connection with the of purchase of some land. He returned
back Delhi on 4.6.1995 where he was straightway admitted in
the RML hospital as he was not well. He met Investigating
Officer on 12th when he handed over the documents Ex. PW-
2/A and Ex.PW-2/B to him. His statement was recorded by the
police on 14.6.1995.
16. In his cross-examination PW-2 has stated that he
had locked his kothi from the outside and the key of the other
portion which was locked with a Harison lock has been given
to the accused. He denied the suggestion that Vijay was his
close contact; he stated that Vijay was only known to him as
he used to show cassettes from time to time. He admitted
that on 26.5.1995 he had gone to meet the Railway Minister
Mr.Zafar Sharif without appointment hoping that he would
meet him and in case he did not meet him, he would meet him
in the Parliament House. He has admitted that on the morning
of 26.5.1995 his room was not cleaned by the regular maid as
there was no requirement for cleaning. He has admitted that
PW-3 is known to him since he has become an M.P. i.e. from
the year 1994 and he often used to visit him; he admitted that
on 24.5.1995 in the evening at about 7.00 PM PW-3 and
another boy had been sent to Badarpur where accused and his
wife were living. PW-2 admitted that he reads the newspaper
and he was told by people of Kailashpuri that there was some
news in the paper about him though he has not read that
newspaper. He could not recollect the name of the seller from
whom he has purchased the land on 29.5.1995; he denied the
suggestion that he had not gone to see land on that, in fact,
he had visited Dr. Subhash for getting treatment of the injury
which he had suffered. He admitted that he had moved an
application for anticipatory bail on the advice of his advocate
at the time when he was in the hospital. He denied the
suggestion that any altercation took place between him and
the accused on the night of 25.5.1995.
17. Learned defence counsel has submitted that PW-
2 is an untrustworthy witness and his entire version is a
bundle of lies; it has come on record that he had reached
Delhi on 4.6.1995 but his statement was recorded by the
Investigating Officer only on 14.6.1995; in between his
application for anticipatory bail had also been allowed and the
Investigating Officer had given no objection to the grant of the
same. It is submitted that the entire case has been
investigated at the behest and supervision of PW-2 only to
save the skin of PW-2 who is the actual offender and Mirtunjay
Tiwari has been falsely roped in.
18. This submission of learned defence counsel can be
adjudged by scrutinizing the entire deposition of PW-2 vis-à-vis
the deposition of other related witnesses and not in relation to
his singular version of his having last seen the accused and
the deceased together.
19. PW-2 has been categorical in his version that on
25.5.1995 when the accused had brought ice-cream and after
his knocking, when the door was not opened an altercation
took place between the deceased and the accused. He was
the intervener who had tried to save the situation and in that
process the shirt of the accused had got torn and his watch
had broken and fallen down. This watch had been picked up
by Raj Kumari. In his cross-examination, he specifically denied
the suggestion that any altercation took place between him
and the accused.
20. PW-12 and PW-17 have given contrary versions in
this regard. PW-12 Ved Pal is the chowkidar at 16-B, Feroz
Shah Road. He had deposed that on 25.5.1995 at about 11
PM he was stationed outside his kothi; he saw Mirtunjay Tiwari
carrying ice-cream cups and going towards Kothi No.16-E; he
saw the accused pounding on the door of the house of PW-2;
PW-2 opened the door and there was an argument which
ensued between the accused and PW-2; PW-12 went to
enquire but he was told that the matter was internal. In his
cross-examination, PW-12 has reiterated that the argument
between PW-2 and the accused was loud and high pitched and
so much so that they could hear it from the place where he
was stationed which was about 25 to 30 yards away.
21. PW-17 was the security guard of Deepak Pandey
posted at 16-C, Feroz Shah Road. He had deposed that on
25.5.1995 at about 11 PM he saw the accused pounding at the
door of the house of PW-2; he was having ice-cream cups in
his hands; the door was opened and there was a loud
argument between PW-2 and the accused; on his enquiry he
was told that it was an internal matter and required no
intervention. In his cross examination, he has reiterated that
this argument was between PW-2 and the accused.
22. Versions of PW-12 and PW-17 clearly establish that
on that day when the accused had come back after bringing
the ice-cream, the argument had taken place between the
accused and PW-2 and not between the accused and his wife
as has been the version of PW-2; PW-12 and PW-17 have not
ascribed any role to the wife of the accused; she was nowhere
in the picture in this verbal exchange.
23. Version of PW-2 on the one hand and of PW-12 and
PW-17 on the other hand were clearly conflicting and it is
obvious that it is only one of the two versions which is reliable.
24. The watch of PW-2 was subsequently recovered
from the brassiere of the dead body of Raj Kumari; if the
deceased had picked it up when it fell down she would in
routine have returned it to PW-2; how was it found in her
under garment; this part of the version of PW-2 is also
suspect.
25. PW-2 had deposed that he had gone with PW-1 to
the Rail Bhawan in the morning of 26.5.1995 to meet the
Railway Minister admittedly without an appointment. This
appears to be questionable as it is difficult to imagine that a
busy politician of the rank of a Minister would meet a person
without an appointment and especially in view of the fact that
the Parliament Session was on and he had shortly to attend
the Session. The documents Ex.PW-2/A and Ex.PW-2/B i.e. the
forwarding letter and the letter making request for
employment on behalf of the accused are purportedly in the
hand of Hajma, an acquaintance of PW-2; this person by the
name of Hajma has not come into the witness box; he has not
been examined. Ex.PW-2/A purported to have been signed by
the accused had not been subject matter of any scientific
examination; scribe of the documents has not come into the
witness box and the accused denied having signed any such
document; we are left only with the version of PW-2 to decide
whether any such documents had been prepared or not. These
documents thereafter had been handed over by PW-2 to the
Investigating Officer on 12.6.1995.
26. In our view, it is highly unlikely that these
documents had been prepared in the manner as deposed by
PW-2. It is improbable that PW-2 who was going to Gorakhpur
on his election tour for a period unknown would have carried
these letters along with him and thereafter he was able to
hand over the same to the IO on 12.6.1995. Normal human
conduct would presuppose that even if these letters had been
written they would have been in the custody of the accused,
to be handed over to the Railway Minister by PW-2 on his
return, at an opportune occasion. This part of the version of
PW-2 also does not inspire confidence.
27. PW-2 had further deposed that while they were
returning back from the Parliament House to their Kothi on the
way they purchased fruits for the wife of PW-2 as she was
fasting. Again human conduct cannot pre-suppose a situation
that a man of the stature of PW-2 i.e. a Member of Parliament
would take a detour and obviate his normal traffic route and
go to Janpath to purchase fruits for a person who is hardly
known to him i.e. the accused and with whom he had no
special relation as from the version of PW-2, the accused had
visited him only on one or two occasion prior to 25.5.1995 in
connection with his employment; in fact PW-2 in his testimony
had ridiculed the accused for his begging tactics for seeking a
job. PW-4 has come into the witness box to depose that the
fruits were purchased by PW-2 from his stall at Janpath at
about 12.00 Noon on 26.5.1995. The fruits vendor who is
selling fruits to hundreds of people every day and even
presuming that PW-2 was his regular customer, it is difficult to
imagine that PW-4 would have been in a position to identify
the companion of PW-2 i.e. the accused after a gap of two
years as he has come into the witness box only in July 1997.
This witness also appears to be a procured witness only to
build up a corroboration of the version sought to be set up by
PW-2.
28. Version of PW-2 is further to the effect that at 4.00
PM Vijay who was known to him as he was working in the
Canteen had come to take back the V.C.R.; PW-2 has
specifically denied the suggestion that Vijay was close to him;
as per his version Vijay was known to him because he used to
show him cassettes from time to time. This is contrary to the
deposition of Vijay PW-6 who has deposed that he was living in
garage No.72 which had been allotted to PW-2; this shows
that Vijay was a close proximate of PW-2, that is why he i.e.
PW-2 allowed Vijay to stay in his garage. On this count also
PW-2 is lying.
29. PW-6 has stated that on 26.5.1995 when he
reached the house of PW-2 at about 1.00 PM he met PW-2 who
informed him that the TV and VCR were lying in the room next
to the Varandah. PW-8 Anil Arora had deposed that when he
reached the house of PW-2 to remove the television and V.C.R.
he saw that the television and the V.C.R. had been
disconnected and they were lying outside the room and Vijay
was sitting in a folding chair and keeping a guard.
30. These versions of PW-6 and PW-8 establish that
PW-2 was in his house in the afternoon of 26.5.1995; he had
not returned back at 4.30 PM as has been deposed by him;
when PW-8 had come to take back television and V.C.R., Vijay
who used to live in the garage of PW-2 was sitting outside and
keeping a guard outside the room; television and V.C.R. had
been disconnected and had been shifted outside from the
initial room where it had been installed. This scene as depicted
clearly shows that PW-2 had something to hide and did not
want any entry in the house.
31. Further version of PW-2 is that he left the house for
Ghaziabad at about 4.30 PM after an auto-rickshaw had been
called by PW-3. As per his version PW-3 had come to his
house at 4.30 PM with a request for employment. PW-2 has
admitted that PW-3 was known to him since 1994 and on
24.5.1995 he had sent him to Badarpur where the accused
and his wife were living.
32. PW-3 has deposed that he knows PW-2 since he is
an M.P. and hails from their constituency and he had met him
on two or three occasions earlier; he has deposed that at the
request of PW-2 he had brought the TSR for him as PW-2 has
to go to Ghaziabad; in his presence, the accused and his wife
were handed over the key of the interior room by PW-2. In his
cross-examination, he has stated that he has seen the
accused once on an earlier occasion and this was about two
and half months before.
33. This version of PW-3 is clearly in contrast to the
testimony of PW-2 who had stated that on 24.5.1995 PW-3 had
been sent by him to the house of the accused at Badarpur.
34. This also finds confirmation in the admission of the
accused in his statement under Section 313 Cr.P.C. wherein he
has admitted that PW-3 has come to his house on 25.5.1995.
PW-3 appears to be at great pains to conceal from the court
that he was not well known to PW-2 whereas PW-2 has stated
that he knew PW-3 since 1994. Even otherwise how did the
Investigating Officer contact PW-3 is also not answered; PW3
was not a resident of Delhi; either of the two witnesses i.e.
PW-3 or PW-2 are lying and not coming out with the truth in
this regard. PW-3 is not a credible witness; he has been roped
in by the Investigating Officer only to corroborate PW-2 that
the deceased was alive till 4.30 PM of 26.5.1995; he i.e. PW-3
had seen the accused and deceased in the company of one
another at that time and PW-2 had given him the key of the
visitors room. It is also difficult to imagine as why a Member
of Parliament would give the key of an interior room of his
house to a mere acquaintance when he was travelling
outstation for an unknown period, as also the fact that it was
not as if Mirtunjay Tiwari was without an abode; he was
admittedly living in the rented accommodation of PW-11 at
Badarpur, Delhi and was not without a shelter. This part of the
version of PW-3 again constrains the court to hold that the
investigation has been carried out only to build up a protective
umbrella for PW-2 who on all occasions has failed to pass the
test of a truthful witness.
35. It were these versions of PW-2 and PW-3 which had
as per the trial Judge established that the accused and the
deceased had been last seen in the company of one another.
It is also on record that statement of PW-2 was recorded by
the Investigating Officer on 14.6.1995; his anticipatory bail
application had been allowed without any opposition; this was
on 4.6.1995; obviously PW-2 was apprehending trouble of a
possible arrest yet the Investigation Officer remained
complacent. Trial Judge has held that it has been established
that PW-2 is untruthful in some parts; he has not explained his
period of disappearance from 26.5.1995 upto 4.6.1995 when
he was admitted in the hospital; trial Judge had also held that
a relationship between the deceased and PW-2 has been
established; yet the trial Court chose to believe this witness
which in our view was a mis-appreciation of his testimony; not
only being unreliable, PW-2 can safely be labeled as a liar.
Both these witnesses i.e. PW-2 and PW-3 have discredited
themselves and their testimonies not inspiring confidence, are
discarded.
36. Testimony of PW-1 has also been taken into
account by the trial Judge to establish the circumstance of the
last seen theory. This is a clear a mis-appreciation of
testimony of PW-1. PW-1 has only deposed to the effect that
the accused did not return home on 25.5.1995 and 26.5.1995
which had led the trial Judge to presume that if the accused
absented himself and did not return home on the said two
days, it could be for the reason that he was still in the house of
PW-2 and in the company of his deceased daughter. This is
an improper and mis-conceived reasoning; it also has to be
discarded.
37. The prosecution has failed to establish
circumstance no.1.
38. Site plan Ex.PW-2/A has been perused. As per the
version of PW-8 he had installed the TV and VCR at point X1
which is a smaller room adjacent and connected to another
bigger room B1 which was the bed room of PW-2 and has a
front door entrance. This door is at point D. Both these rooms
are in the front portion of the house. When PW-8 went to
collect his TV and VCR they were lying disconnected and
removed from the room X1 i.e. where they were initially
installed; as per his testimony the TV and VCR were lying in
the gallery outside i.e. the area shown as the verandah in the
site plan. The dead body was recovered from point A in a
room which was in the interior of the house. This room was
purportedly the visitors room. There was no door between this
room and the front two rooms i.e. B1 and X1. That is to say,
that all the three rooms, i.e. the TV room X1, the adjacent bed
room B1 and the room from where the dead body was
recovered were interconnected having no doors in between.
PW-2 has stated that he had handed over the key of the
visitors room describing it as the back portion to the accused.
Access to this room was from the back door of the house. This
back door had been found locked and police had forced entry
into it. The key of the lock had been produced by the
accused. Presuming this to be correct, it would be a situation
where the accused by gaining entry from the back door to
access the visitor room would in fact be accessing the entire
house including the front two rooms which is definitely not the
case of the prosecution. PW-2 had only given the key of the
visitors room to the accused; the site plan however does not
support this theory.
39. From this picture which has emerged before us, it is
clear that the TV and VCR were installed in a room in the front
portion of the house. They were disconnected and lying
outside this room in the open verandah. When PW-8 had gone
to collect the TV PW-6 was found keeping a guard on the
entrance of the house. There was only one entrance from the
front and if any person would have gone inside, such a person
would also have had access to the interconnected interior
room from where the dead body was recovered. It is apparent
that TV and the VCR had been kept outside as PW-2 did not
want any entry into the house; he had something to hide. It is
also difficult to conceive a situation that a man of the status of
a Member of Parliament would have handed over the key of a
room in the interior of his house to a hardly known
acquaintance. Site plan clearly shows that the occupants of
the interior room would have access to virtually the whole
house; what was the point of PW2 locking the front entrance;
it would be a mere formality. It is also to be borne in mind
that the accused had a permanent abode in Delhi and was
living as a tenant in the house of Om Prakash PW-11; he was
not without a roof or shelter.
40. On 31.5.1995 after the arrest of the accused, his
personal search had been conducted vide memo Ex.PW-28/J.
As per this document a sum of Rs.422/- in cash, a wrist watch
of HMT make, a belt of light brown colour and one suitcase
had been recovered. No other article has been shown to have
been recovered from the personal search of the accused. This
document was attested by SI Jagat Singh and SI Yashwant
Singh. Another memo Ex.PW-28/B was also prepared on the
same day which is the seizure memo of a key. This document
was also attested by SI Jagat Singh and SI Yashwant Singh.
This document recites that one key of Harrison lock, being a
copper key had been produced by the accused which had
been seized separately vide the aforestated memo. This key
Ex. P-6 and the Harrison lock Ex.P-7 purported to have been
found on the back entrance of the house of PW-2 which had
been broken open by the police to make forced entry were
both sent to the CFSL. CFSL vide its report dated 31.8.1995
had opined that this lock was operational with the aforesaid
key.
41. We are not inclined to accept this recovery. On the
personal search of the accused conducted on 31.5.1995 four
articles had been found recovered from his possession but
there was no mention of the recovery of any key. On the
same day another document Ex.PW-28/B had been prepared
showing the seizure of a key; how and from where this key
was produced by the accused has not been explained by the
prosecution. Accused was admittedly in police custody at this
time. It appears that the key has surfaced from nowhere. The
attesting witnesses to both the documents i.e. the personal
search memo Ex.PW-28/J and the seizure memo of the key
Ex.PW-28/B are SI Jagat Singh and SI Yashwant Singh of whom
SI Yashwant Singh had not been examined. SI Jagat Singh
has made a parrot like recitation on this count. The aforenoted
discrepancy in our view has tarnished this recovery which is
liable to be discarded.
42. On the same day i.e. 31.5.1995 the accused had
also got another recovery effected i.e. a torn blood stained
shirt P-5 and a blood stand knife P-20. Ex.PW-28/C is the
recovery memo of this blood stained knife; the sketch of which
is Ex.PW-28/E. Ex.PW-28/D is the recovery memo of the blood
stained torn shirt and states that it is a full sleeved red and
white striped shirt, stained with blood and torn from the left
sleeve. All the aforestated documents i.e. Ex.PW-28/C,
Ex.PW-28/D and Ex.PW-28/E had been attested by SI Jagat
Singh and SI Yashwant Singh. CFSL vide its report dated
22.8.1995 had opined that the knife and the shirt had blood
group of 'A' origin which was the blood group of the
deceased. The knife had not been submitted to the doctor for
opinion as to whether it could be the weapon of offence in the
instant case. There was yet the recovery of another shirt
Ex.PX-5 which was got recovered by the accused on 2.6.1995.
This recovery was from his tenanted premises and was
witnessed by his landlord Om Prakash PW-11. This shirt had
been taken into possession vide seizure memo Ex.PW-11/C.
As per this document one yellow coloured polythene bag was
hanging in the room of the accused which contained a shirt
which had been disclosed by the accused as having been lent
to him by Ash Mohd.Ansari, a Member of Parliament and after
he i.e. the accused had committed the murder of his wife, he
had removed his blood stained torn shirt and hidden it and
worn this borrowed shirt of PW-2. Shirt has been described in
the memo as a shirt of 40 size with a front embroidered
pocket and of badami colour. This document had been
attested by Om Prakash PW-11 and SI Jagat Singh. As per this
document accused was wearing this badami coloured shirt
when he returned back to his house.
43. On oath PW-11 has stated that on 2.6.1995 he had
accompanied the police party to the room of the accused
where the accused had brought out a yellow coloured shirt
and the same was taken into possession vide aforestated
memo; the shirt was thereafter sealed. In his cross-
examination PW-11 has stated that there was a blood spot on
the front of the shirt. The version of PW-11 and the document
Ex.PW-11/C are contrary; Ex.PW-11/C has described
the shirt to be of a badami colour. PW-11 has
described the shirt as of yellow colour. Version of Vishwanath
PW-1 father-in-law of the accused is also relevant. He
has stated that when the
accused returned back on 27.5.1995 he was wearing a white
striped shirt which was new and clean.
44. We are also unable to understand as to how blood
was depicted on both the shirts i.e. the shirt which had been
recovered on 31.5.1995 and the second shirt which had been
got recovered on 02.6.1995. Version of the prosecution is that
the accused had committed the offence while he was wearing
his torn shirt and after committing the crime he changed the
shirt. When he returned back to his house he was wearing the
shirt which he had borrowed from PW-2. Crime as per the
prosecution had been committed after 26.5.1995. On
26.5.1995 accused had borrowed this shirt of PW-2 to go to
the Rail Bhawan. It is obvious that on 26.5.1995, the day of
the crime, he would have been wearing the borrowed shirt of
PW-2. This shirt would have become blood stained and not his
own shirt which had got torn on 25.5.1995 in the course of the
verbal duel between himself and PW-2. Yet both the shirts
were blood stained. PW-30 in his cross-examination had
admitted that no enquiry was conducted from the accused as
to how blood had appeared on both these shirts; prosecution
is unable to answer this discrepancy; this coupled with the
contrary versions of the witnesses i.e. PW-11 and PW-1 on the
colour and the description of the shirt; whether it was clean or
blood stained; whether it was of badami colour or yellow
colour or white or red striped is not clear; these conflicting
versions again constrain us to disbelieve both these recoveries
i.e. the recovery of the shirt and the knife on 31.5.1995 and
the recovery of the second shirt on 2.6.1995.
45. On 30.5.1996 a diary in the handwriting of the
accused containing his address had been seized from the spot;
this diary had been admitted by the accused to be his own
diary, A1 to A10 were the admitted handwritings of the
accused which had been sent to CFSL for comparison along
with the questioned document i.e. Q1 to Q2 which were the
letters purportedly written by the accused to the SHO and
taken into possession on 31.5.1995 vide memo Ex.PW-
28/G. The specimen writing of the accused was taken on
1.6.1995 vide memo Ex.PW-28/K. These specimen writings
were taken during the course of the investigation without prior
permission of the concerned Magistrate. In view of the
judgment of the Supreme Court reported in Sukhvinder Singh
& Ors. Vs. State of Punjab JT 1994(4) SC1, such specimen
writing cannot be considered by the court and the subsequent
report of CFSL Ex.PW-13/A noting that the questioned
document and the specimen/admitted writing were of the
same person cannot be read.
46. The motive for the crime has been depicted by the
prosecution as the accused having suspected his wife of
having an illicit relationship with PW-2 which had led him to
murder her. It is true that there cannot be any direct evidence
of motive yet in the instant case there appears to be no
indirect motive either. As per PW-1 the deceased and the
accused were living happily. Version of the prosecution is that
the accused and his wife had visited PW-2 only on one or two
occasions prior to 25.5.995; how and when PW-2 and the
deceased developed intimacy becomes difficult to gauge. Had
the accused suspected his wife of having an illicit relationship
with PW-2, he would not have left his wife in the company of
PW-2, allowing her to accompany him to the village to attend
the marriage of her sister-in-law. On the other hand the
motive on the part of the PW-2 to kill the deceased appears to
be more apparent. He had physically exploited her and
thereafter wished to hide his crime. The photographs of the
dead body Ex.PW-22/A14 to A26 show that the saree has been
wrapped on her body; post mortem had also detected only one
small tear on her saree.
47. It is also relevant to point out that on 27.5.1995 a
call of rape having been committed at E-16, Feroz Shah Road
had been recorded in the Police Station; ASI Satpal Sigh PW-
20 had gone to investigate but the call was reportedly hoax;
some person had apparently wanted the police to make
investigations in this house.
48. From the evidence which had been gathered, it
appears that the murder had been committed on the
intervening night of 25-26.5.1995 itself. Till late night on that
day admittedly the deceased and PW-2 were in the house of
PW-2 when the accused had brought ice-cream for PW-2 and
when after repeated knocking on the bedroom door of PW-2,
PW-2 did not open the door a verbal altercation took place.
This verbal altercation was not between the accused and his
wife but between the accused and the PW-2 and was
witnessed by PW-12 and PW-17. The accused had left the
house leaving his wife at the residence of PW-2 as PW-2 had
promised that he would be going to their village on the
following day and he would send the deceased along with his
sister to attend the marriage of her sister-in-law. On the
following day i.e. on 26.5.1995 he remained on guard the
entire day and left his house for Ghaziabad at 4.30PM. Till that
time he was present in the house and this is an admitted
version of both sides. PW-2 had not taken the accused to the
Rail Bhawan in the morning and had not remained out of the
house till 4.30PM as is his version. He is lying on this count
and his testimony has been discussed supra. He had created
evidence to build up his alibi that he remained out of the
house in the morning of 26.5.1995 up to 4.30 PM. Besides the
fact that his version is full of contradictions and
inconsistencies, PW-8 has stated that at 12.00 Noon when he
came to take back his TV and VCR he found PW-2 in the house
and the TV and VCR were lying disconnected in the verandah
outside. Obviously PW-2 did not want anyone to enter the
house where the crime had already been committed. PW-2 has
further admitted that on 25-26.5.1995 his room had not been
cleaned as regular maid not come into the house; why and for
what reason; obviously PW-2 did not want entry of any
outsider to the house as he had something to hide. Through
PW-3 he had tried to build up his case that in his presence he
had handed over the key of the visitor room to the accused.
Testimony of PW-3 has already been discarded; even
otherwise it is difficult to believe that a Member of Parliament
would have handed over the key of his entire back portion to a
hardly known acquaintance when that person i.e. the accused
had a permanent residence in Delhi itself. The theory that the
accused was in dire need of employment and that is why he
was visiting the house of PW-2 is again uninspiring in view of
the fact that admittedly the accused was working in a private
firm and doing work of 'thekedari' and this has been elicited in
the version of PW-1, his father-in-law, who has admitted that
the accused was paying a monthly rent of Rs.500/- to his
landlord from his earnings. DW-1, the father of the accused,
has also come into the witness box and deposed that the
accused was working in a private firm and his version stands
un-assailed on this count. PW-2 had admittedly read the news
about the incident of murder in his house but he continued to
allude the police; there is no plausible explanation of his long
and continued absence from the scene from 26.5.1995 up to
12.6.1995. Needle of suspicion is directed at PW-2.
49. All these cumul ative factors clearly show that the
accused has been falsely implicated. Benefit of doubt has
accrued in his favour; he is entitled to an acquittal. He is
accordingly acquitted of the charge levelled against him.
Appeal is allowed. His bail bond and surety bond are cancelled.
(INDERMEET KAUR)
JUDGE
(PRADEEP NANDRAJOG)
JUDGE
September 07, 2009
nandan
