Chander Prakash & Ors vs The State
2010 Latest Caselaw 3206 Del

              THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Judgment Reserved on: 07.07.2010
                                     Judgment Delivered on: 12.07.2010

+             CRL.A 196/1997


CHANDER PRAKASH & ORS                                    ..... Appellants


                                    - versus -

THE STATE                                                .....Respondent

Advocates who appeared in this case:

For the Respondent      : Mr Lovkesh Sawhney
For the Appellant       : Mr Anu Narula

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE V.K. JAIN

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

2. To be referred to the Reporter or not ? Yes

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

V.K. JAIN, J

1. This appeal is directed against the judgment dated

5.4.1997 and Order on Sentence dated 8.4.1997, whereby the

appellants were convicted under Sections 120-B and Section

302 of IPC read with Section 34 thereof and were sentenced to

undergo imprisonment for life and to pay fine of Rs.1,000/-

each or to undergo R.I. for one month each in default under

Section 302/34 of IPC, and were given identical punishment

under Section 120-B of IPC. It was also directed that the

substantive sentences shall run concurrently.

2. On 5th November, 1993, at about 8.50 pm, Police

Control Room informed PS Sultan Puri that an unclaimed

gunny bag was lying, on the road going to Village Kironi from

Sector 20 of Rohini. On receipt of this information, the police

officials reached the spot. On opening the gunny bag, the

dead body of a young woman was found inside. The hands,

legs and neck of the deceased were found tied with a cotton

cord. The dead body was identified to be of one Smt.Pushpa,

wife of Mukesh and resident of I-98, Krishna Vihar, Delhi. The

Post Mortem Report revealed that cause of death was asphyxia

consequent to ligature constriction of neck. Five persons,

namely, Mukesh Kumar, husband of the deceased, Bobby

alias Sanjiv, brother of Mukesh Kumar, Smt.Veerbala, sister of

Mukesh and Sanjiv, Chander Prakash, husband of Veerbala

and Dharam Prakash, brother of Chander Prakash,were

charge-sheeted on the allegations that they hatched a criminal

conspiracy to commit murder of deceased Pushpa and after

committing her murder pursuant to that criminal conspiracy,

they disposed of her body in a gunny bag.

3. The prosecution examined 19 witnesses in support

of its case. One official witness was examined in defence. The

trial court while convicting the appellants, acquitted the

accused Mukesh and Veerbala.

4. PW-1 Ram Pal, PW-2 Ram Kishan, PW-3 Yaad Ram

PW-9 Rajbala are the material witnesses.

5. There is no direct witness of the murder of deceased

Pushpa and the charge against the appellants was sought to

be proved by establishing following circumstances.

(i) Deceased Pushpa was taken by the appellant

Sanjiv with him on 5th November, 1993, at about 2.30 pm on

the pretext that he being sick she should sweep his room and

prepare Khichri for him.

(ii) Deceased Pushpa accompanied by the appellant

Sanjiv, went to the shop of one Ram Pal at about 2.30 pm on

5th November, 1993 to buy some articles.

(iii) At about 3.30 pm on 5th November, 1993, Yaad

Ram, brother of the deceased, found the appellants Sanjiv,

Chander Prakash and Braham Prakash (who has since been

acquitted) standing outside the house of Sanjiv and when he

went inside, he found Pushpa making tea there.

(iv) Pushpa was strangulated using a white rope and

a similar rope was got recovered by the appellant Sanjiv from

his house.

The motive behind the murder of Pushpa is alleged to

be the desire of the appellants to marry Mukesh, husband of

the deceased to some other girl, after killing Pushpa.

6. When the case of the prosecution rests solely on

circumstantial evidence, the circumstance from such

conclusion of the guilt of the accused is sought to be drawn

must be cogently and firmly established and they should be of

a conclusive nature. The circumstances, taken together must

form a chain of evidence, which is so complete that it does not

give any reasonable ground to draw a conclusion consistent

with the innocence of the accused and must show that in all

human probability the offence was committed by no one other

than the accused.

Circumstance Nos.(i) & (ii)

7. According to PW-9 Rajbala, mother of the deceased,

on 5th November, 1993 at about 2.30/2.45 pm, accused Sanjiv

came to the house of Pushpa and took her with him on the

pretext that since he was not well, she should sweep the room

and prepare Khichri for him. At the time deceased Pushpa left

the house, she (the witness) was standing at the door of her

house and was told by her that she was going with Sanjiv.

She further stated that at about 7.30 pm on that day, accused

Veerbala, accompanied by accused Chander Prakash, Braham

Prakash and Bobby @ Sanjiv came to her house and enquired

whether Pushpa was there at her house.

In her cross-examination, she admitted that though

the police had come to their house in the night of 5 th

November, 1993, she, at that time, did not disclose this fact to

the police. She further admitted that she did not go to police

station either on 6th November, 1993 or on 7th November, 1993

to tell the police that Pushpa had gone with Sanjiv, to his

house, on 5th November, 1993. The allegations regarding

Sanjiv taking Pushpa with him were made by her, for the first

time, in her statement dated 8.11.1993. There is absolutely

no valid explanation for the witness not disclosing this

material fact to the police, despite her having come to know in

the night of 5th November, 1993 itself that her daughter had

been murdered and despite her having met the police in the

very same night. In the normal course of human conduct, the

mother of the deceased would not have withheld this vital

information from the police and would have disclosed the

same to the police officer, at the very first opportunity, when

he met her in the night of 5th November, 1993. The delay on

the part of this witness in disclosing this material fact to the

police creates a serious doubt on her truthfulness and the

deposition made by her in this regard.

8. PW-1 Ram Pal is a shopkeeper in the locality. He

has stated that on 5th November, 1993, at about 2.00 or 2.30

pm Pushpa had come to his shop to buy some articles. At that

time, she told him that she should be given articles first since

she had been called by her in-laws to clean the house. She

was alone at that time. This witness was cross-examined by

the learned APP. He denied the suggestion that Pushpa, when

she came to his shop, was accompanied by accused Sanjiv

and that she had told him that she was going to Sanjiv's house

and was preparing khichri for him.

According to PW-1 Ram Pal, when deceased Pushpa

came to his shop at about 2.30 pm on 5th November, 1993 she

was alone and was not accompanied by the appellant Sanjiv.

Thus, the testimony of PW-9 Rajbala in this regard has been

contradicted by prosecution's own witness. If Ram Pal was

speaking truth, this witness obviously was telling a lie in

saying that Pushpa had accompanied the appellant Sanjiv in

the afternoon of 5th November, 1993.

This witness claims that the accused Veerbala,

Chander Bhan, Braham Prakash and Sanjiv came to her

house to find out whether Pushpa was there at her house. In

the normal course, at least the appellant Sanjiv would not

have made such an enquiry from the witness, if he had taken

deceased Pushpa with him in that very afternoon. If this

witness saw Pushpa accompanying the appellant Sanjiv in the

afternoon, he also would have seen Pushpa talking to her and,

therefore, knowing full well that if he makes such an enquiry

from this witness, she was likely to confront him with the

accusation that it was none other than he who had taken

Pushpa with him in the afternoon, he would not like to make

such an enquiry in case he had taken Pushpa with him.

Moreover, had the appellant Sanjiv taken Pushpa with him in

the afternoon, as claimed by this witness, she, when accused

Sanjiv, Chander Prakash, Braham Prakash and Veerbala came

to her house to enquire about Pushpa, would there and then

have told them that it was the appellant Sanjiv who had taken

Pushpa with him in the afternoon and it is for him to tell

where Pushpa was. The witness does not claim to have

confronted the appellant Sanjiv with such an accusation when

he along with some other accused came to her house in the

night of 5th November, 1993.

9. PW-2 Ram Kishan, father of the deceased, as well as

PW-3 Yaad Ram, brother of the deceased, claim to be in the

house on 5th November, 1993. If this is so, the accused

Chander Prakash, Braham Prakash, Sanjiv and Veerbala,

when they came to their house at about 7.30 pm on 5th

November, 1993, must have come and enquired about Pushpa

in their presence. Even Yaad Ram, brother of the deceased,

does not claim to have confronted them with the accusation

that in the afternoon he had seen Pushpa cooking in the

house of the appellant Sanjiv and, therefore, it was for them to

explain her whereabouts. On the other hand, according to

PW-2, Ram Kishan, when these persons came to their house

and enquired about Pushpa, he told that that his daughter

had gone from his house on the day of Dussehra and must be

in their house or in the house of Veerbala. This response on

the part of Ram Kishan, father of the deceased, who was

present in the house at the time when the appellants enquired

about Pushpa, clearly indicates that none of them had seen

Pushpa in the company of the appellant Sanjiv on that day.

Even if it is presumed that Smt.Rajbala, mother of the

deceased had not informed her husband about having seen

the deceased accompanying the appellant Sanjiv in the

afternoon, in the normal course of things, she would definitely

have interjected at that stage and told the appellants that it

was the accused Sanjiv who had taken Pushpa with him, and

Yaad Ram also would have said that he himself had met

Pushpa in their house in the afternoon. Therefore, the

response given by PW-2 Ram Kishan at the time when the

appellants came to their house at about 7.30/7.45 pm on 5th

November, 1993 and enquired about Pushpa, belies the claim

made by PW-9, Rajbala and PW-3 Yaad Ram. We therefore

are of the view that the prosecution has failed to prove this

circumstance.

Circumstance No.(iii)

10. PW-3 Yaad Ram is the brother of the deceased. He

has stated that on 5th November, 1993, at about 3.30 pm, he

had a sudden stomach-ache, while on duty in the shop in

which he was employed and, therefore, he returned home.

While returning home, he saw Braham Prakash, Chander

Prakash and Sanjiv standing outside the house of Sanjiv. He

went inside the house and found Pushpa preparing tea there.

He also found Mukesh and Veerbala present in the house. In

his cross-examination, this witness stated that he did not take

any medicine for the stomach-ache. If the stomach-ache is so

acute that a person cannot continue performing his duty

despite being at the work place and has to take leave from his

employer, it is difficult to accept that he would not even

consult a doctor. In fact this witness does not claim to have

taken even an OTC medicine, to get relief from the stomach-

ache.

According to the witness, he was employed at a shop

of one Ram Swaroop at Dariba Kalan. The Investigating

Officer did not examine the employer of this witness to confirm

that he had taken leave at about 1.30 pm on 5th November,

1993 as claimed by him. The Investigating Officer ought to

have verified the claim made by this witness by examining his

employer.

11. Ex.PW-17/G is the first statement of Yaad Ram,

which was recorded in the police station on 5th November,

1993 after the dead body of Pushpa had been recovered and

the FIR had been registered. In this statement he did not say

a word about his having seen his sister in the house of the

appellant Sanjiv or his having seen the appellants Braham

Prakash, Chander Prakash and Sanjiv standing outside the

house of Sanjiv in the afternoon of 5th November, 1993.

There is no explanation for this witness not disclosing these

material facts to the Investigating Officer at the very first

opportunity. Non-disclosure, at the time his first statement

was recorded, leads to the inference that his second statement

claiming to have seen the appellants outside the house of

Sanjiv and his having seen deceased Pushpa in the house of

Sanjiv was an afterthought.

12. Taking into consideration the facts (i) that the

employer of Yaad Ram was not examined to verify his claim of

having taken leave at 1.30 pm on that day, (ii) no medicine

was taken and no doctor was consulted by Yaad Ram for his

stomach-ache, (iii) he did not make any such claim when he

was examined for the first time vide statement Ex.PW-17/G

and (iv) when the appellants came to their house at about

7.30/7.45 pm on 5th November, 1993 to enquire about Pushpa

he did not confront them with the accusation that he himself

had seen Pushpa in their house, it would be highly unsafe to

rely upon the testimony of this witness.

13. We, therefore, are of considered view that the

prosecution has failed to prove that the deceased was last seen

with the appellants.

Circumstance No.(iv)

14. As regards the alleged recovery of cotton rope from

the house of the appellant Sanjiv, we find that the recovery

has not been believed by the trial court. The finding of the

trial court in this regard was not assailed before us during the

course of hearing. PW-10, Fateh Singh, who is the sole public

witness of alleged recovery, has stated that on 11th November,

1993, he was present at the bus stand Mangol Puri when

some police officials accompanied by accused Sanjiv @

Bobby, requested him to become a witness to the statement

which Sanjiv wanted to make. The statement of Sanjiv was

recorded in his presence. Thereafter, Sanjiv led the police to

his house and got recovered two pieces of ropes. One brick

was also got recovered by him from the same room. One

rickshaw parked outside his house was also recovered by the

police. During her cross-examination, PW-9 Rajbala, has

admitted that Fateh Singh had attended the marriage of his

daughter. She also identified him in the photograph Ex.PW-

9/DB, blessing accused Mukesh and stated that this

photograph was taken about ten days before the marriage of

her daughter. She also admitted that Fateh Singh had

attended this function on their behalf. Despite being closely

associated with the family, Shri Fateh Singh, when he was

examined in the court, pretended as if he was a stranger to the

family. Even otherwise, the way he claims to have been

approached by the police to become a witness does not inspire

confidence. It is difficult to accept that the police officer would

approach an unknown person waiting at a bus stand and ask

him to become a witness to the process of recording of the

statement of an accused and recovering the case property at

his instance, and that person instead of going to his house

outside Delhi would readily agree to become a witness.

In any case, nothing really turns on the alleged

recovery even if it is believed. As per the report of the CFSL,

the rope alleged to have been recovered from the house of

appellant Sanjiv was similar to the rope with which the

deceased was strangulated. It is not the opinion of the expert

that the rope used for strangulating the deceased was part of

the rope alleged to have been recovered from the house of the

appellant Sanjiv. As regards the alleged recovery of a brick

and a rickshaw, there is no evidence to connect them with the

murder of the deceased Pushpa.

Motive

15. As regards motive behind the murder, the case of the

prosecution is that deceased Pushpa being hard of hearing

and her surgery having remained unsuccessful, the appellants

wanted to marry her husband Mukesh to some other girl after

killing her and that is why they killed her so as to remove the

obstacle in the second marriage of Mukesh. Ram Kishan,

father of the deceased, has admitted in his cross-examination

that marriage of Pushpa with Mukesh was a love-marriage and

not only the two families were neighbours, they were also

known to each other for six months prior to the marriage and

were on visiting terms. If that be so, it cannot be accepted

that Mukesh or his family members were not aware of the

handicap from which the deceased was suffering. If despite

knowing of her handicap Mukesh chose to marry deceased

Pushpa, it is not likely that he would go for second marriage

and that too after killing her in conspiracy with his other

family members. Primarily, it was the accused Mukesh who

could be aggrieved on account of handicap from which his wife

was suffering. The charge against him has not been believed

by the trial court and he has been acquitted. No appeal has

been preferred by the State against his acquittal. If Mukesh

was not involved in the murder of his wife, it is difficult to

accept that his family members would take it upon themselves

to kill her despite the fact that none of them could be

aggrieved on account of the deceased being a little hard of

hearing. Therefore, the handicap of the deceased could not

have motivated the appellants to commit her murder.

16. According to PW-2 Ram Kishan, Laxmi Devi,

mother-in-law of the deceased had asked her to establish

physical relations with the appellant Sanjiv and he along with

his wife had gone to the house of the appellants and told them

about the complaint made by his daughter. He further stated

that the accused persons claimed that the accusation made

against Laxmi Devi were false. However, no such allegation

was made either by Ram Kishan or by the mother or brother of

the deceased in their statement under Section 161 Cr.P.C.

Hence, the allegations made by him are nothing but an

afterthought and cannot be believed. He has also stated that

about 1 and 1-1/2 months prior to this occurrence, he noticed

blood coming out of the mouth of his daughter, who told him

that she was beaten by her husband Mukesh and her mother-

in-law Laxmi Devi. He went to their house and asked Laxmi

Devi not to harass his daughter. Again, there is no such

allegation in the statement made by the witness under Section

161 of Cr.P.C. In any case, there was no such allegation

against the appellants before this Court and Mukesh has

already been acquitted by the trial court whereas his mother

Laxmi Devi has not been prosecuted. Therefore, nothing turns

on this allegation made by Shri Ram Kishan.

17. We find that two sets of statements of witnesses Ram

Kishan, Rajbala and Yaad Ram were produced during trial of

this case. Ex. PW-3/DB is the statement of Yaad Ram

purporting to have been recorded on 08th November, 1993,

whereas Ex. PW-3/DA is the copy of his statement purporting

to have been recorded on 05th November, 1993. In the

statement Ex. PW-3/DA, Yaad Ram claimed that when he

went inside the house of Sanjiv, he found Pushpa cooking

khichri and he also had a conversion with her. However, there

is no such averment in the statement Ex. PW-3/DB. The IO

ACP Ram Gopal Sharma admitted in his cross-examination

that the statement Ex. PW-3/DB, purporting to have been

recorded on 08th November, 1993, bears his signatures. He

also did not disown the statement of Yaad Ram, purporting to

have been recorded on 05th November, 1993 and stated that

he had recorded the statement of Ram Kishan and Yaad Ram

under Section 161 Cr.P.C. in the Police Station in the same

night at about 11.30 pm.

One statement of Ram Kishan, purporting to have

been recorded on 05th November, 1993 is mark 'Y' whereas

his other statement is mark 'X'. In the statement mark 'Y' Ram

Kishan alleged that his son Yaad Ram had seen Devar, Nandoi

and brother of Nandoi of his daughter Pushpa at the house of

the accused Sanjiv and that Pushpa had accompanied her

brother-in-law Sanjiv to his house to make khichri for him and

to sweep his house. However, the statement mark 'X' does not

contain any allegations against the accused persons, as

admitted by the IO PW-19 ACP Ram Gopal Sharma.

Ex.PW-9/DA is the statement of PW-9 Smt. Rajbala,

purporting to have been recorded on 08th November, 1993.

During her cross-examination, Rajbala has admitted her

signatures on this document. Mark 'A' is the copy of another

statement of Rajbala, purporting to have been recorded on

that very date, i.e., 08th November, 1993. In the statement,

mark 'A' Smt.Rajbala claimed that her daughter Pushpa had

accompanied the accused Sanjiv on 05th November, 1993 for

making khichri for him and sweeping his room. She also

claimed that her son had told her that at about 03.30 pm, he

saw Pushpa, making khichri in the house of the accused

Sanjiv. At that time, the accused Chander Prakash and

Braham Prakash were talking to Sanjiv outside his house. The

statement Ex.PW-9/DA, however, is not identical to the

statement mark 'A'. In the statement Ex. PW-9/DA, it is not

recorded that the appellant Sanjiv had taken the daughter of

the witness with him on 05th November, 1993.

The Investigating Officer has admitted that the

statements Ex.PW-3/DB, PW-9/DA and mark 'X' have been

recorded by one and the same person.

18. There is absolutely no explanation from the

prosecution for two sets of statements of these three material

witnesses having been recorded in this case. One possibility is

that the Investigating Agency was trying to help either the

accused persons or the complainants by fabricating one set of

statements. The other possibility is that the witnesses

themselves made conflicting statements to the investigating

agency. The benefit must necessarily go to the accused when

the material available with the Court does not show that it

were the statements favourable to the accused persons which

were fabricated by the Investigating Agency. Had the Court

found that the Investigating Agency had fabricated the

statements favourable to the accused persons with a view to

help them, it could have been possible for the Court to discard

those statements from consideration. But, when the Court is

not in a position to draw such a conclusion, the benefit of

contradictory statements will have to be given to the accused

persons.

19. For the reasons given in the preceding paragraphs,

we are of the view that the charges against the appellants do

not stand established beyond reasonable doubt. The

appellants are given benefit of doubt and are hereby acquitted.

The appeal stands disposed of.

20.

V.K. JAIN, J

BADAR DURREZ AHMED, J JULY 12, 2010 RS/BG