Shakeel vs State
2010 Latest Caselaw 2000 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Judgment Reserved on: 15th April, 2010
                         Judgment Pronounced on: 19th April, 2010

+                        CRL.APPEAL No.960/2008

       SHAKEEL                          ..... Appellant
                    Through:   Ms.Nandita Rao, Advocate

                               versus

       STATE                                  ..... Respondent
                    Through:   Mr.M.N.Dudeja, A.P.P.

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT

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

2.     To be referred to the Reporter or not?

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

PRADEEP NANDRAJOG, J.

1. Jogender Prasad PW-2 was examined by the

prosecution as their witness on 7.5.2003. Cross-examination

was deferred as counsel for the accused was not present. The

matter was adjourned from time to time till 16.2.2004. On

said date an order was passed recording that counsel for the

accused was refusing to cross-examine Jogender Prasad

because the viscera report of the deceased was not on record.

The learned Trial Judge held that the testimony of Jogender

Prasad, a public witness, had no concern with the viscera

report. Noting the continued refusal by the counsel to cross-

examine Jogender Prasad, further noting that the Supreme

Court had repeatedly held that public witnesses should be

examined with the maximum possible speed, request for

adjournment was declined and Jogender Prasad was tendered

for cross-examination. Noting that the counsel and the

accused did not avail the right to cross-examine Jogender

Prasad, it was recorded that the witness has remained

uncross-examined.

2. No steps were taken to challenge the order dated

16.2.2004 which attained finality. Regretfully, the order has

not even been challenged in the instant appeal.

3. Criminal Law was set into motion when DD No.2,

Ex.PW-3/A, was recorded at PS Sangam Vihar at 8:03 AM

pertaining to foul smell emanating from a room occupied by a

tenant in House No.140, Gali No.8, Ratia Marg, Amar Singh

Wali Gali. Copy of DD No.2 was handed over to ASI Hari Ram

PW-3, who accompanied by Const.Shankar (not examined)

proceeded to the said house and found a room locked from

which foul smell was emanating. He broke the lock and seized

the same vide memo Ex.PW-2/E and on entering the room saw

the dead body of a female which was in a highly decomposed

state. Noting that he had broken the lock and seized the same

and had found the dead body of a female in a highly

decomposed condition, ASI Hari Ram prepared the tehrir

Ex.PW-3/B and dispatched the same for FIR to be registered.

At the police station the FIR Ex.PW-1/A was registered. The

dead body was seized and sent to the mortuary for post-

mortem. Dr.Varun Dixit conducted the post-mortem and

prepared the post-mortem report Ex.PW-14/A, proved at the

trial by Dr.Manish PW-14, since Dr.Varun Dixit had left

employment and Dr.Manish was familiar with the writing and

signatures of Dr.Varun Dixit. The post-mortem report does not

give any opinion as to the cause of the death of the deceased.

No internal injuries whatsoever were detected. No external

injuries whatsoever were detected. It was noted that the dead

body was highly decomposed with maggots. It was opined

that the death was more than one week prior to the date when

post-mortem was conducted, being 17.4.2002. Being relevant

for our discussion, the general features of the body were noted

in detail as under:-

"A dead body of young female brought to mortuary for post-mortem. The body in high stage of decomposition. The body had violet salwar and kameez with white cheque. On external examination distension of face, abdomen and thighs present due to decomposing gases. Peeling of skin all over the abdomen, legs and arms, degloving of skin, the hands, marbling present all over the abdomen. Rigor mortis passed of, post-mortem liquidity with the greenish discolouration of decomposition swelling. Maggots present all over the body, all over the neck, armpits, pubic region and size 0.5 cm, post-mortem blebs present over (illegible) skin from the scalp peeled off

with the scalp (illegible) collapse due to decomposition. Mouth open with tongue protruding between the teeth."

4. Since cause of death could not be detected during

post-mortem, the viscera of the deceased was kept in a jar and

sent for analysis and as per report Ex.PW-11/A proved by its

author Mrs.Kavita Goel PW-11, no poison of any variety could

be detected in the viscera.

5. As deposed to by Jogender Prasad PW-2, whose

statement was recorded by the investigating officer under

Section 161 Cr.P.C. during investigation, appellant Shakeel was

his tenant since about 1½ months prior to 13.4.2002 and

deceased Bilkis was his wife and the two used to live in the

room taken on rent. They used to quarrel and inspite of his

reasoning with them, the quarrels continued. He found in the

morning of 14.4.2002 that the room taken on rent was locked

and he thought that husband and wife may have gone out.

The room continued to remain locked for 2 - 3 days, till on

16.4.2002 he detected foul smell emanating from the room

and called the police who seized the dead body. The broken

lock was taken into possession as entered in the memo Ex.PW-

2/E which bore his signatures at point 'A'. That after appellant

was apprehended he i.e. Jogender Prasad went to the police

station when disclosure statement Ex.PW-2/A made by the

appellant was recorded. Thereafter the appellant led the

police to the boundary wall of Air Force Station and got

recovered a chunni and a key which were seized vide memo

Ex.PW-2/D.

6. ASI Hari Ram PW-3 deposed facts as noted herein

above in para 3 pertaining to ASI Hari Ram and stated that he

seized the broken lock as recorded in the memo Ex.PW-2/E.

7. Since it was a case of apparent murder, after the

FIR was registered, Insp.Neeraj Kumar PW-12 took over the

investigation and as deposed to by him after the accused was

apprehended he made a disclosure statement Ex.PW-2/A on

18.4.2002 as per which he not only admitted to the crime but

stated that he can get recovered a chunni with which he had

strangulated his wife Bilkis i.e. the deceased and that he could

get recovered the key of the room. Thereafter, he led the

police to near Air Force Station boundary wall and pointed out

the place claiming that he had thrown the chunni and the key

at the said place. Both were recovered as entered in the

memo Ex.PW-2/D. He identified the key Ex.P-3 as the one

which was recovered. He identified the lock Ex.P-2 as the one

which was seized at the spot.

8. The key Ex.P-3 and the lock Ex.P-2 were subjected

to forensic analysis and as deposed to by Dr.Swaroop

Vendanand PW-15, he had examined the lock and the key. As

per his report Ex.PW-15/A the lock and the key had the name

of the same manufacturer embossed thereon. The lever inside

the lock was found matching with that of the key. He clarified

that since the lock was broken, it was not possible to operate

the key on the lock.

9. When examined under Section 313 Cr.P.C. the

appellant denied all and sundry. He denied being a tenant

under Jogender Prasad. He denied Bilkis the deceased being

his wife. He denied that he used to quarrel with the deceased.

He denied having made any disclosure statement and stated

that his signatures were obtained on blank papers. He denied

having got recovered any chunni or the key to any lock.

10. In view of the testimony of Jogender Prasad PW-2

and the fact that the key of the lock placed on the door of the

room inside which room dead body of Bilkis was found, the

learned Trial Judge has convicted the appellant for the offence

of having murdered his wife vide impugned judgment and

order dated 9.7.2008. Vide order on sentence dated 9.7.2008,

the appellant has been sentenced to undergo imprisonment

for life and pay a fine in sum of Rs.1,000/- in default to

undergo simple imprisonment for one month.

11. Arguing the appeal, learned counsel for the

appellant urged that the prosecution has led no evidence to

prove that the deceased Bilkis was the wife of the appellant.

Learned counsel urged that no article connecting the appellant

with the place where the crime was committed was seized;

submission made was that as per the prosecution the room

where the dead body of Bilkis was found was the residence of

the appellant and thus clothes or personal effects of the

appellant ought to have been recovered from the place. The

recovery of the key Ex.P-3 pursuant to the disclosure

statement of the appellant was challenged on the ground that

the recovery is from an open place accessible to others. With

reference to the post-mortem report Ex.PW-14/A and the

viscera report Ex.PW-11/A it was urged that the cause of death

being not detected, it cannot be said that the death of the

deceased was homicidal.

12. Pertaining to the plea that the prosecution has not

proved that Bilkis i.e. the deceased was the wife of the

appellant and since no personal articles of the appellant were

seized from the room where dead body of Bilkis was found, the

case of the prosecution must fall, suffice would it be to state

that the uncontroverted testimony of Jogender Prasad is

sufficient to repel said contentions. By not testing the veracity

of what he deposed, it is apparent that Jogender Prasad has to

be believed.

13. We would like to pen a few words on the question,

though not raised, whether the appellant has been prejudiced

on account of his counsel not cross-examining Jogender Prasad

and if we find prejudice caused, what should be the direction

issued.

14. Having perused the testimony of Jogender Prasad

and the statement recorded by the investigating officer during

investigation, we find no improvement whatsoever made by

Jogender Prasad while deposing in Court. None can belittle the

effect of cross-examination, which is a very powerful weapon

in the hands of the opposite party and probably is the only tool

to discredit the sworn testimony of a witness. But, what is

required at a criminal trial is to grant a fair opportunity to the

defence and not the perfect opportunity to the defence. After

all, the interest of the society in maintenance of law and order

and securing conviction of the culprits is also of paramount

importance in a civil society.

15. Experience guides us that whenever eye-witnesses

have stood by their versions given to the police, every trick up

the sleeve is used by the accused through their counsel to

delay cross-examination of the witness and the time interval is

used to browbeat, intimidate, coerce or win over the witness.

Cases are legion where Courts have dealt with the issue of

credibility of a witness who during examination-in-chief fully

supports the case of the prosecution and when cross-

examined after months of his examination-in-chief turns fully

hostile. It needs not much intelligence to put two plus two

together in such cases. Obviously, the witness has been

threatened, coerced or intimidated into submission. This is the

reason why Courts have insisted on public witnesses being

cross-examined immediately after their examination-in-chief is

over. It is apparent that in the instant case, the appellant and

his counsel had planned a strategy of contrivance. It is

apparent that PW-2 Jogender Prasad was not being cross-

examined so that time could be gained to browbeat him or

somehow win him over. Jogender Prasad had only deposed to

the fact of appellant and deceased Bilkis residing as tenants in

a room in his building and as per his knowledge the two being

husband and wife. He has deposed of seeing the room locked

in the morning of 14.4.2002 and continued to being remained

locked till foul smell was detected by him on 16.4.2002 and

the police breaking the lock and recovering dead body of Bilkis

from the room. What had the viscera report got to do for the

purposes of cross-examining Jogender Prasad? Obviously

nothing. Thus, the reason given by learned counsel for the

appellant to not cross-examine Jogender Prasad, having no

legs to stand on, we conclude by holding that the appellant

must suffer the consequence of his failed strategy of

contrivance. Thus, the entire testimony of Jogender Prasad

being unchallenged has to be read against the appellant.

Further, why would Jogender Prasad be telling a lie? We see

no reason for him to do so.

16. On the issue of the recovery of the key Ex.P-3

pursuant to the disclosure statement of the appellant, the plea

that the recovery is from a place accessible to others is neither

here nor there for the reason, as held in the decision reported

as 1999 (4) SCC 370 State of H.P. vs. Jeet Singh, the test is not

whether the place was accessible to others but whether it was

ordinarily visible to others. Nothing has been brought out

while cross-examining the witnesses to the recovery that the

place wherefrom the key was recovered was visible to others.

17. We may add that the nature of the object recovered

is also important. A small little key on being misplaced in the

house is difficult to be found. Thus, even if recovered from a

place which could be not only accessible but visible to all, so

small is a key that it would go undetected by the eyes of a

common man and unless a person has knowledge of the place

where he threw it and leads somebody to the spot and points

out the same, it may be impossible to detect and recover the

key.

18. Thus, the prosecution has successfully proved that

the key in question was got recovered by the appellant and

through the testimony of Dr.Swaroop Vedanand has further

proved that the key was of the lock placed at the door of the

room, which lock had to be broken by ASI Hari Ram PW-3,

within which the dead body of Bilkis was found.

19.           How did the deceased die?         Was her death

homicidal?          If yes, has the prosecution proved that the

appellant is the culprit?

20. It is no doubt true that the doctor conducting the

post-mortem on the dead body of Bilkis could not render any

positive opinion as to the cause of her death. It is true that

there are no apparent and visible signs of manual or ligature

strangulation on the neck of Bilkis. But, as opined in the book

Forensic Medicine by P.V.Guharaj (page 180): „Where death

has taken place immediately from reflex cardiac arrest or

vasodilatation on the carotid body, the signs of asphyxia and

the injuries on the neck may be slight or absent‟. As opined by

Jaisingh P. Modi in the celebrated text Modi's Medical

Jurisprudence and Toxicology (22nd Edn. page 263): „In

some cases the mark in the neck may not be present at all, or

may be very slight, if the ligature used is soft and yielding like

a stocking or scarf, and if it is removed soon after death‟.

21. As noted herein above in para 3 the mouth of the

deceased was open with tongue protruding out. One symptom

of strangulation is mouth open and tongue protruding out.

Thus, we have some evidence that there is a likelihood of

Bilkis being strangulated.

22. Now, there are only two possibilities of Bilkis dying.

The first is that her death was natural and the second it was

homicidal. This deadlock has to be broken with reference to

the fact that the appellant was found absconding from his

house; the door of the house (a single room tenement) was

locked from outside and the key of the lock was recovered at

the instance of the appellant. That the dead body of Bilkis was

inside the room which was found locked means that before the

door was closed and the lock was put, dead body of Bilkis was

already inside the room. He who closed the door and put the

lock was obviously aware that Bilkis had died. Had Bilkis died

a natural death, the conduct of the husband would be to

inform the relatives and perform the last rites of his wife and

not run away. The conduct of the appellant running away after

closing the door and locking the same with the dead body of

Bilkis inside is suggestive of his guilt.

23. The appellant cannot take advantage of the fact

that since dead body of Bilkis was detected after a few days of

her death and had decomposed and hence either due to said

reason or due to soft ligature material used to strangulate

Bilkis, forensic evidence was lost.

24. We break the impasse on the cause of death of

Bilkis on the anvil of the conduct of the appellant and as

discussed hereinabove.

25. We conclude by recording our concurrence with the

view taken by the learned Trial Judge.

26. The appeal is dismissed.

27. Since the appellant is still in jail we direct that a

copy of this decision be sent to the Superintendent, Central

Jail, Tihar to be made available to the appellant.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE

APRIL 19, 2010 dk