Smt.Saroj vs State
2010 Latest Caselaw 2256 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                Judgment Reserved on : 19th April, 2010
%                               Judgment Pronounced on :28th April, 2010

+                             Crl. A. No. 464/2008

        SMT. SAROJ                                  ..... Appellant
                            Through:      Ms.Charu Verma, Advocate
                       versus
        STATE                                       ..... Respondent
                               Through:   Mr.M.N.Dudeja, APP


                              Crl. A. No. 645/2008

        SHEORAJ S/O MAM CHAND                       ..... Appellant
                       Through:           Ms.Charu Verma, Advocate
                  versus
        STATE                                  ..... Respondent
                       Through:           Mr.M.N.Dudeja, APP

         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 Reporter or not?
     3. Whether the judgment should be reported in the Digest?

SURESH KAIT, J.

1. Instant appeals have been preferred against the

judgment and order dated 11.01.2008 convicting the

appellants for the offence punishable under Section 302 read

with Section 34 IPC and for the offence punishable under

Section 201 IPC. For the former offence, the appellants have

been sentenced to undergo imprisonment for life and for the

latter to undergo RI for a period of one year. The third

accused namely Sri Niwas was not committed to trial since he

was declared a Proclaimed Offender.

2. On 31.07.2005 at about 5:45 AM Anwar PW-2 made

a call from his shop at No.100 and informed that a dead body

was lying near railway level crossing, Bakner, the same

information was received by Ct.Satender Kumar PW-1 posted

in PCR which is Ex.PW-1/A. Information was passed on to

police station Narela by Ct.Satender Kumar. Police Station

Narela registered DD No.30-A, the same is Ex.PW-19/A.

3. The investigation of the case was entrusted to SI

Ishwar Singh PW-14 who reached at the spot and noticed that

a dead body was lying near the railway level crossing (phatak),

Lampur Road. He was accompanied by HC Saheb Singh PW-

18. Meanwhile, SHO Inspector Manohar Singh PW-19 reached

the spot and started investigation. HC Kanwal Singh PW-12

was present at the spot. PW-19 recorded the statement of HC

Kanwal Singh which is Ex.PW-12/A and sent Rukka Ex.PW-19/B

for registration of the FIR, Ex.PW-4/A

4. PW-2 deposed that on 31.07.2005 at about 5:45 AM

he came to open his shop i.e STD booth situated at railway

road, near railway level crossing, Bakner. Some persons from

public were found present near railway level crossing. They

requested him to inform PCR at No.100 that a dead body was

lying near railway level crossing, Bakner. Accordingly, he rang

up PCR staff from his telephone No.55218340. In his cross-

examination he stated that he himself did not see anybody

near railway crossing. He further stated that he did not see

the persons from public had caught hold of anyone. The

persons gathered over there were 10/15 in number.

5. PW-4 Ram Chander who received rukka sent by

SHO through Ct.Saheb Singh recorded the FIR No.372/2002

Ex.PW-4/A.

6. PW-6 Rohtash and PW-7 Dharampal identified the

dead body and received the same from the mortuary.

7. PW-8 Sajjan Kumar, a photographer in Mobile Crime

Team, deposed that on 31.07.2005 on calling he reached at

the spot near the railway level crossing, Bakner. They found

that the dead body was covered with a galicha (the carpet). On

unfolding the galicha (carpet) a dead body was found naked.

He took the photographs and thereafter handed over the

photographs to the IO. In his cross-examination PW-8 deposed

that he along with crime team reached the spot at about 6:30

AM. SI Ishwar Singh PW-14 and other police staff were already

present there. Some public were also gathered there. He

deposed that he did not notice if the public persons had

caught hold of anybody at the spot. He remained at the spot

for about 30 minutes.

8. PW-9 Inspector Sat Parkash who was the Incharge

of Crime Team prepared the detailed report which is Ex.PW-9/A

which bears his signatures at point 'A'. In his cross-

examination he stated that he received the information at

about 6:00 AM and he and his team reached at the spot at

about 7:00 AM. He stated that the IO and his staff were

present in addition to persons from the public. They remained

at the spot for about 30-40 minutes. He further stated that no

one was in custody of police or had been apprehended by the

police.

9. PW-10 Vijay Kumar was posted at railway level

crossing No.17 (phatak) of Bakner as a Gateman. He deposed

that on 31.07.2005 at about 5:00 AM he shut down the barrier,

as Jammu Mail Train No.4034 was approaching from Jammu

with destination to Delhi. Thereafter, he went in the forest

nearby to ease himself. At that time he noticed one lady

accompanied by two children and a male present at a distance

of about 40 metres from his cabin. They were having with

them at that time a bundle. On seeking them he avoided that

direction and went to other side to ease himself. He returned

to his cabin after easing himself. By that time the train had

passed by the crossing. He further stated that while present at

his cabin he observed that one male person picked up the

bundle on his head and started crossing the railway crossing

in the company of a female and two children referred above.

At the same time, HC Kanwal Singh PW-12 reached over there.

The said PW-12 followed the aforesaid male, female and two

children and checked the bundle. HC Kanwal Singh PW-12

also called him to that place. He reached over there and found

that a female and two children were not there. HC Kanwal

Singh raised alarm to attract the public and apprehended the

aforesaid male person. Then HC Kanwal Singh brought the

aforesaid person near his cabin. Meanwhile, PCR van also

reached there. On the apprehension of the aforesaid male

person a dead body was found in the bundle. He himself saw

the dead body in the bundle. In his cross-examination he

deposed that the PCR staff reached the spot within 5 minutes.

He further deposed that the PCR took the male person from

the spot at about 5:30 AM. The dead body was removed from

the spot at about 10:30 AM.

10. The star witness of the instant case is HC Kanwal

Singh PW-12 who deposed that on 31.07.2005 he was posted

at PS Alipur. On that day after his duty hours were over, he

was going to his house which is situated in District Sonipat

(Haryana). He reached at Bakner phatak at about 5:15 AM.

He was waiting for some vehicle. He saw two male persons

and one female person near the railway track by the side of

bushes. He further stated that the female called one of the

male persons and then picked up a bundle from the bushes.

The female was having one male and one female child with her

at that time and one of the male persons accompanied the

female carrying the bundle and started moving towards

Bakner village whereas the other male person started moving

towards the railway station. He further deposed that due to

suspicion of theft, he crossed the railway line and stopped the

female carrying the bundle. He enquired from the female as

to what she was carrying in the bundle. She replied that there

were household articles in it. She further replied that she had

brought the same from her quarter. He asked her to show the

bundle to him but she refused. He brought the bundle down

from her head and directed her to open the bundle but she

refused. He himself opened the bundle and found a dead body

of naked male lying in it. In the meanwhile, he found that the

female had fled away. He along with the public person

apprehended the appellant Sheoraj and took him near the

bundle. Meanwhile PCR reached the spot. He handed over the

appellant Sheoraj and bundle of the dead body to PCR officials.

SHO recorded his statement Ex.PW-12/A. He put his

signatures at point 'A'.

11. In his cross-examination he stated that he alighted

from a bus at the railway level crossing of Narela and then

started moving on foot to my village. He further stated that the

PCR staff reached the spot at about 5/5:30 AM. SI Ishwar

Singh PW-14 and SHO Inspector Manohar Singh PW-19 were

also reached there. He further stated that he produced the

dead body and appellant Sheoraj before the two PCR staff in

his presence. He left the spot at about 6:30 AM.

12. SI Ishwar Singh PW-14 deposed that on 31.07.2005

he was posted at PS Narela. On that day DD No.6A (should be

DD No.30A) was entrusted to him. He was accompanied by

Ct.Saheb Singh PW HC Saheb Singh PW-18 reached at the

railway level crossing and found dead body of a naked male

person. SHO Inspector Manohar Singh PW-19 reached at the

spot and started investigation. SHO reduced into writing the

statement of HC Kanwal Singh and sent rukka from the spot

through Ct. Saheb Singh PW-18 for registration of the case. In

his presence one bed sheet and one gadela (Galicha) were

seized vide seizure memo Ex.PW-14/A.

13. PW-18 HC Saheb Singh deposed that on 31.07.2005

he accompanied SHO Inspector Manohar Singh PW-19, Ishwar

Singh PW-14 and HC Ramesh reached at the spot at the

railway crossing at Lampur Road at about 6:00 AM. On

reaching near the railway level crossing they found dead body

of a male person, about 40/45 years, lying on a bed sheet with

a galicha type item under it. The SHO inspected the dead

body. Persons from the public were present there. Nobody

could identify the dead body. HC Kanwal Singh was present

there. The SHO recorded his statement at 7:40 AM. He took

the rukka and got the case registered. He further deposed that

HC Kanwal Singh had already apprehended one person namely

Sheoraj. Sheoraj made his disclosure statement Ex.PW-18/A.

Pursuant to the disclosure statement of the appellant Sheoraj,

he accompanied the SHO and other staff and reached at R-5,

Street No.2, Swatantra Nagar, Narela Colony. Appellant

Sheoraj pointed out the same as the place of occurrence and

also towards a red colour Dupatta lying there used in the

commission of crime. Thereafter, the SHO himself conducted

the search of the room. In the said room a raxine bag was

lying. Three identity cards i.e. of Sriniwas, Raghubir and

Somwati, a ration card in the name of Raghubir and an

application addressed to the DSP Guhana by the complainant

Saroj were recovered vide recovery memo Ex.PW-18/1 to 5

respectively. On 02.08.2005, he along with SHO and other

police staff took the appellant Sheoraj from the lock-up and

went in search of co-accused Saroj and Sriniwas. They

reached railway station. HC Kanwal Singh met them there. At

the same time one secret informer informed to the SHO that

the lady was standing at the platform of Narela railway station

and waiting for someone. At the instance of HC Kanwal Singh

lady accused Saroj was apprehended there. She disclosed her

name as Saroj wife of Raghubir Singh. She was arrested vide

memo Ex.PW-12/B. Her personal search memo Ex.PW-12/C

was prepared. Her disclosure statement is Ex.PW-12/D. He put

his signatures at point 'B'. Appellant Saroj also pointed out

the place of occurrence vide memo Ex.PW-18/E. His

signatures at point 'B' were taken.

14. PW-19 Inspector Manohar Singh is the IO of the

case who deposed that on 31.07.2005 he was posted at PS

Narela. On that day he received DD No.30-A Ex.PW-19/A and

thereupon accompanied by Ct.Saheb Singh, Ct. Ramesh and SI

Ishwar Singh reached railway level crossing, by the side of

Nisha Electronics, Lampur. On reaching there they found

naked dead body of a male peson, aged about 40/45 years

lying ona galicha (carpet). He observed the dead body. There

was no external injury on it. HC Kanwal Singh was found

present there. Recorded his statement Ex.PW-12/A and his

signatures at point 'B'. He appended rukka Ex.PW-19/B to the

said statement and sent rukka to the police station through

Ct.Saheb Singh whereupon the case was registered.

15. Crime team was called to the aforesaid place. Dead

body was got photographed. Efforts were made to get

identified the dead body but it could not be identified. The

dead body was then sent to mortuary with a request for its

preservation. He prepared the site plan which is Ex.PW-19/C.

The Galecha and bed sheet were seized vide memo Ex.PW-

14/B. He put his signatures at point 'B'. Appellant Sheoraj was

arrested vide memo Ex.PW-18/C and his personal search was

conducted vide memo Ex.PW-18/D. Appellant Sheoraj made

his disclosure statement Ex.PW-18/A. Pursuant thereto they

reached at the spot of occurrence i.e. the house of Raghubir

situated in Swatantra Nagar and pointed a red colour Dupatta

lying on a cot stating that this very Dupatta was used in

strangulating Raghubir. The Dupatta was seized vide memo

Ex.PW-18/B. Three election I-Cards, one ration card and one

copy of complaint made by Saroj against her husband

Raghubir were recovered from a bag lying in the same room.

All the said articles were seized and sealed.

16. In his cross-examination he deposed that he

interrogated appellant Saroj about her children. She disclosed

that she left her children in the house of her relative at

Halalpur. Investigation revealed that at the time of removal of

dead body appellant Saroj was accompanied by two children.

He stated that he did not join those two children as they were

not traceable. He stated that he reached House No.5, Street

No.2, Swatantra Nagar, as Saroj used to live there. He further

stated that investigation revealed that she (Saroj) lived there

only for 2/3 days. He did not join the owner of the said house

during investigation. None of the person in the neighbourhood

could tell him about the owner of the house. He did not take

any step to collect any document title of that house. He

further deposed that at the time when they reached House

No.5, Street No.2, Swatantra Nagar, it was found lying locked.

The key of the lock was lying on a hole in the outer wall of the

house and the key was picked up as pointed out by appellant

Sheoraj. The lock and key were not seized. Rather the house

was locked with the same key after the investigation and the

key was placed in the same hole.

17. Dr.Upender Kishore PW-3, who conducted the post

mortem Ex.PW-3/A recorded the alleged history of being found

dead of the deceased, the relevant portion of his report is as

under:-

External Antemortem Injuries:

i) Reddish abrasion of size 2x1 cm present over the outer aspect of left middle forehead.

ii) Reddish abrasion of size 1x1 cm present over the left side face below the left side of lower lip.

iii) Reddish abrasion of size 2x1 cm present over the right side chin.

iv) Reddish abrasion of size 3x1 cm present over the middle of neck 7 cm below the chin.

v) Reddish abrasion of size 2x1 cm present over the back of left side shoulder.

vi) Reddish abrasion of size 3x2 cm present over the outer aspect of back of left shoulder.

vii) Ligature mark present around the neck over the tyroid cartilage completely encircling the neck in the midline 2.5 cm broad and placed 7 cm below the chin on the right side of neck a mark of 2.5 cm broad and placed 6 cm below the right side mastoid. On the left side of neck, the mark was 2.5 cm broad and placed 7 cm below the mastoid. At the nape of neck, a mark of 2.5 cm was broad and placed 9 cm below the occiput.

The mark is soft to feel and multiple hemorrhages present over the mark.

Internal examination:

Petechial hemorrhages seen under the scalp, brain congested, neck structure intact, multiple small hemorrhages seen in the soft tissue of the neck and muscles of neck. Both lungs congested. All internal organs congested and soft to touch. Stomach contained 50 ml liquid. Mucosa congested. No abnormal smell appreciable. Time since death about 2 days.

18. PW-3 Dr.Upender Kishore recorded the cause of

death to be asphyxia as a result of ante mortem strangulation

by ligature. He opined that strangulation could be possible

with the 'Dupatta' produced or a similar one 'Dupatta'. His

opinion was recorded as Ex.PW-3/B.

19. Statement under Section 313 Cr.P.C. of the

appellants were recorded in which appellant Sheoraj denied

each and every suggestion put forth to him but in the last he

stated that he was present at railway station Narela when he

was picked up by two police officials. On the other hand

appellant Saroj also denied every suggestion put forth to her

but regarding her arrest and disclosure statement, she stated

that she was picked up by the police from the house of her

daughter Maya and that the police removed dupatta from the

head of her daughter while she was present at the police

station, Narela. Both of them did not lead any defence

evidence.

20. The trial Judge while convicting the appellants has

relied upon the following incriminating evidences:-

i) The appellant Saroj and Sheoraj were seen moving

with the dead body contained in a bundle near

railway level crossing, Bakner on 31.07.2005 at

about 5:15 AM.

ii) The appellant Sheoraj was arrested from near the

railway level crossing whereas appellant Saroj

made good her escape and she was arrested on

02.08.2005 at the pointing out of the HC Kanwal

Singh.

       iii)    Pursuant       to   the   disclosure    statement   of     the

               appellant      Sheoraj    on   the     same   day   i.e.   on

31.07.2005 a dupatta Ex.PW-18/6 was recovered

from the house of Raghubir and Saroj.

iv) The recoveries of three identity cards, one ration

card and one copy of complaint by Saroj to the

police against her husband.

21. We note that there is no consistency in the

statement of PW-10 Vijay Kumar and PW-12 Kanwal Singh.

They were the witness of having seen the appellants with the

dead body. PW-10 Vijay Kumar was posted at railway

crossing. He stated that at that point of time he noticed that

one lady accompanied by two children and a male person were

with a bundle, whereas PW-12 Kanwal Singh stated that the

female was having one male and one female child with her at

that time and one of the male persons accompanied by the

female carrying the bundle and started moving towards

Bakner village, whereas other male person started moving

towards railway station.

22. Thereafter as per PW-10 there was one female, one

male and two children. But as per PW-12 he saw two male

persons and one female with two children near the railway

track by the side of the bushes.

23. There is also no consistency even as to who was

carrying the bundle of the dead body, whether a male or a

female? As per PW-10 Vijay Kumar one male person was

picking up the bundle on his head and started crossing the

railway crossing. But, as deposed by PW-12 HC Kanwal Singh

stated that due to suspicion of theft, he crossed the railway

line and stopped the female carrying the bundle. He asked her

to get the bundle down from her head and directed her to

open the bundle. Inconsistency between the two witnesses is

that as per PW-10 male persons were picking the bundle of

dead body whereas PW-12 deposed that female was carrying

the same.

24. It is very interesting to note that as per the

deposition of IO PW-19 Inspector Manohar Singh the place of

occurrence of the crime was found lying locked. The key of

the lock was lying in a hole of the outer wall of the house and

the key was picked up as pointed out by appellant Sheoraj.

After seizure, they locked the premises again and the key was

placed in the same hole. Neither he seized the lock nor did he

seize the key.

25. We have not come across any of the case where

the recovery was effected from the locked premises and the

investigating officer has not taken into possession the lock and

key of the premises.

26. We have noted, there is no consistency even in the

apprehension of the appellant Sheoraj along with bundle of

dead body. Only PW-10 Vijay Kumar and PW-12 Kanwal Singh

stated that the appellant Sheoraj was apprehended with the

dead body, whereas PW-8 Sajjan Kumar, a photographer of the

crime team, deposed that he did not notice if the public

persons caught hold of anybody at the spot. Though, he admit

that he remained at the spot for about 30 minutes. Even PW-9

Inspector Satya Prakash, Incharge of crime team also stated

that IO and his staff were present in addition to persons from

public. He remained at the spot for about 30-40 minutes. No

one was in custody of the police or had been apprehended by

the police.

27. We have gone through the trial court record and

the photographs of the deceased lying in the trial court file.

On perusal of the photographs of the deceased show that the

weight and height of the deceased is not given but from the

photographs itself one can make out that the deceased was

having fairly healthy body and is aged about 45-50 years. If

not more, the weight of the deceased cannot be less than 60

kgs. It is unbelievable that either of the appellants could carry

60 kgs of weight on his or her head. For a moment, if we

believe that the appellants could carry 60 kgs, it is not again

believable that a full size dead body which is neither cutted

into pieces nor tied with any string can be wrapped in a gadhri

(bundle) and carried on head. Moreso, the month of

occurrence was of July and time at about 5:30 in the morning

there was a proper light. We cannot believe if they would

have dispose of the dead body in such a manner and in a day

light.

28. Not only it is not possible for a lady to singularly or

for an average man to singularly lift a dead body on the head

and cart it around for the reason the dead weight of a body is

much more when actually carried than that of a living person.

Further, the testimony of HC Kamal Singh PW-12 who claimed

to have apprehended Sheoraj at the spot and saw appellant

Saroj carrying the bundle containing the dead body is most

unbelievable when he states that due to suspicion of theft he

made Saroj put down the bundle from her head and open it

and since she refused he himself opened the bundle and found

the dead body and in the meanwhile Saroj had fled. Now, as

claimed by him there were two children with Saroj. It means

that Saroj fled with her two children. This is unbelievable for

the reason HC Kanwal Singh could have immediately chased

and caught the three.

29. Keeping in view the aforesaid discussion, we are of

the view that there is no consistency as to how many persons

were with the dead body; who were carrying the dead body

and who were the children along with. Further there is no

consistency on the apprehension of the appellant Sheoraj

along with dead body and no evidence whether the appellant

Saroj was staying with her husband or not. There is also no

evidence as to whether the deceased was staying in that

house.

30. In view of the discussion made hereinabove, we do

not concur with the view taken by the learned trial Judge while

convicting both the appellants.

31. The appeals are allowed. Judgment and order

dated 11.01.2008 is set aside convicting the appellants Saroj

and Sheoraj. Both the appellants are acquitted of the charge

framed against them.

32. Appellants Saroj and Sheoraj are in jail. Copy of

this order be sent to the Superintendent Central Jail, Tihar with

direction that unless required in custody in some other case,

both of them would be set free forthwith.

SURESH KAIT (JUDGE)

PRADEEP NANDRAJOG (JUDGE) APRIL 28, 2010