Smt.Sudama vs State
2010 Latest Caselaw 1303 Del

R-110
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of Decision: 9th March, 2010

+                        CRL. APPEAL NO.730/2007

         SMT.SUDAMA                                ..... Appellan
                 Through:           Ms.Charu Verma, Advocate

                                    Versus

         STATE                                      ..... Respondent
                         Through:   Ms.Richa Kapoor, Advocate

         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?            Yes

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

PRADEEP NANDRAJOG, J. (Oral)

1. We note that the appellant has all throughout been

represented through a legal aid counsel and as per list

supplied to the Court by the Delhi High Court Legal Services

Committee Mr.Sumeet Verma Advocate has been nominated

to argue the appeal.

2. Ms.Charu Verma Advocate is present in Court and

states that she is prepared with the matter. We appoint

Ms.Charu Verma Advocate as the Amicus Curiae to argue the

appeal and fix her fee in sum of Rs.7,500/- to be paid by the

Delhi High Court Legal Services Committee.

3. Young Cherry could not blossom. She suffered an

untimely death on or around 28th or 29th August, 2003.

4. That Cherry's dead body was found tucked inside a

cemented cupboard on the first floor behind a crockery table in

the building bearing Municipal No.AZ-2/266, Paschim Vihar,

New Delhi is not in dispute. The time when the dead body was

found, as deposed to by Narender Singh Sodhi PW-5 was

around 2:15 PM. The date was 31.8.2003.

5. That Cherry was missing stands recorded at PS

Paschim Vihar vide DD No.15A, Ex.PW-14/A on 30.8.2003 at

4:15 PM, on the complaint of Cherry's uncle Col.Inderbir Singh

Behl PW-23.

6. That the body of Cherry was found as aforenoted in

her house on 31.8.2003 stands recorded at the police station

vide DD No.8A Ex.PW-1/A at 2:15 PM.

7. Inspector Lakhvinder Singh PW-12, the SHO PS

Paschim Vihar reached the spot and took into custody the

dead body of Cherry and sent the same for post-mortem to

Sanjay Gandhi Memorial Hospital where Dr.V.K.Jha PW-19

conducted the post-mortem on 2.9.2003 and penned the post-

mortem report Ex.PW-19/A opining thereon that the deceased

died due to asphyxia resulting from ligature throttling of the

neck. He opined that the likely time of death was 4-5 days

prior to the date when he did the post-mortem. Meaning

thereby, the likely time of death of the deceased is any time

between 28th and 29th August 2003.

8. That the deceased was working with Sanjivini

Counseling Center and was under the direct control of Ritu PW-

8 has been deposed to by Ritu who has additionally deposed

that the deceased did not report for work on 28th August 2003

and thus she sent her driver Anil PW-9 to the house of Cherry

and that her driver returned to inform her that the servants in

the house had informed him that Cherry had not returned from

work the previous evening.

9. Anil PW-9 has deposed that on 28th August 2003

Ritu sent him to the house of Cherry because Cherry was not

responding over the telephone. He knocked the door of

Cherry's house and finding no response went to the

neighbouring house of Mr.Narender Singh Sodhi PW-5. Both of

them returned to Cherry's house and at the second time the

door was partially opened and he saw Madan the domestic

help of Cherry who stated that Cherry had not yet returned to

the house and would be returning home after 9:00 PM.

10. Anil was declared hostile by the learned public

prosecutor and with reference to his statement recorded by

the investigating officer under Section 161 Cr.P.C. was

confronted with the question that he had seen even appellant

in the house when Madan opened the door. Anil denied having

seen so or said so to the investigating officer.

11. Narender Singh Sodhi PW-5 deposed that he was

the immediate neighbour of Cherry. That he last saw Cherry in

the evening of 27.8.2003. In the morning of 28.8.2003 a

driver of the employer of Cherry contacted him to enquire

about Cherry. He and the driver went to Cherry's house and

knocked at the door. Madan opened the door and he saw the

appellant sitting on the floor. He deposed that the appellant

was the maid in the house of Cherry. He deposed that Madan

and appellant stated that Cherry had not come back from work

and that she would be returning home around 9:00 PM. He

further deposed that next day on 29.8.2003 he once again

went to Cherry's house at around 10-10:30 PM. Madan

responded to his knocks and informed him that Cherry had still

not returned. He deposed that when Madan opened the door

in the night he saw Sudama i.e. the appellant in the house. He

went on to depose that next day morning he noted that the

newspaper outside the house had not been picked up. He

informed when Col.Behl a relative of Cherry who came to the

house. Mr.Behl got made a duplicate key and entered the

house. Nobody was present in the house. Cherry could not be

seen. Missing person report was lodged. Next day body of

Cherry was recovered from the first floor in a cemented

cupboard behind crockery table when foul smell was noticed

emanating from the house.

12. Col.Inderbir Singh Behl PW-23, the person referred

to by Narender Singh Sodhi corroborated what was deposed to

by Narender Singh Sodhi with reference to his visit to the

house of the deceased at the asking of Narender Singh Sodhi

and his calling a locksmith to open the house and access the

same and his lodging the report with the police of Cherry being

missing.

13. The locksmith Lakhan Singh PW-20 whose role has

been referred to by the preceding two witnesses confirm their

testimony of having gone to the house and preparing a

duplicate key.

14. Madan and the appellant were apprehended from

the railway station as claimed by the prosecution and from

jute bags which they were carrying certain articles of the

deceased were recovered.

15. We eschew reference to the said recoveries for the

reason we find that even ordinary articles such as a rubber

band has been allegedly identified as that belonging to the

deceased.

16. Being juvenile, Madan was sent for trial to a

Juvenile Court. Suffice would it be to state that against the

appellant the incriminating evidence was of her being seen in

the house till as late as the night of 29.8.2003. She and her

co-accused giving false whereabouts of the deceased. She

and co-accused Madan absconding. The learned Trial Judge

has also used as incriminating evidence the recoveries of the

personal belongings of the deceased when the appellant was

apprehended.

17. We ignore the recoveries as the same relates to

ordinary articles and we find it strange that the father of the

appellant would be in a position to identify as ordinary a thing

as a hair rubber band and say with certainty that the same

belonged to his daughter. It is also relevant to note that the

father of Cherry was residing abroad and would not be

expected to be familiar with the personal effects of Cherry.

Lastly, it may be noted that the articles recovered were not

put up for a test identification.

18. It may be noted that when examined under Section

313 Cr.P.C. the appellant admitted that she and Madan were

employed as domestic helps by Cherry but stated that she left

employment on 11.8.2003.

19. The false answer by the appellant of having left

employment on 11.8.2003 is writ large for the reason

Narender Singh Sodhi has proved beyond doubt that the

appellant was still working in the house of Cherry till Cherry

went missing and that he had seen the appellant in the house

on 28.8.2003 as also on 29.8.2003.

20. Thus, the incriminating evidence against the

appellant is of her being present in the house of Cherry,

working as a domestic help till as late as 29.8.2003. The post-

mortem report of Cherry probablizes Cherry being murdered in

time between 28th and 29th August, 2003; both dates on which

appellant and Madan were in Cherry's house.

21. The false and evasive answers given by the

appellant to Narender Singh Sodhi regarding the whereabouts

of Cherry further inculpate her. That she absconded from the

house is further incriminating evidence.

22. Her false answer of having left the employment on

11.8.2003 supplies another chain of incriminating

circumstance to nail the appellant.

23. Even ignoring the recoveries attributable to the

appellant, the chain of circumstances, in our opinion, is

complete wherefrom the guilt of the appellant can be inferred.

24. A feeble attempt has been made before us to urge

and for said argument reference has been made to the

confessional statement of Madan wherein it stands recorded

that because Cherry used to rebuke him he was compelled to

strangulate Cherry.

25. The argument is fairly attractive, but ignores the

fact that Madan by himself, assuming he strangulated Cherry,

could not have lifted the dead body and tuck the same in the

cupboard behind the crockery table. He surely required the

help of another person.

26. We concur with the view taken by the learned Trial

Judge pertaining to appellant being convicted for the offence

punishable under Section 302 and 201 IPC.

27. Since with are not satisfied with the evidence

pertaining to the recovery we hold that the conviction of the

appellant for the offence punishable under Section 381 IPC

cannot be sustained.

28. The appeal is partially allowed. Conviction of the

appellant for the offence punishable under Section 381 IPC is

set aside. Sentence relatable thereto is also set aside.

Conviction of the appellant for the offences punishable under

Section 302 and Section 201 IPC is upheld along with relatable

sentences.

29. Since the appellant is in jail, we direct that a copy

of this decision be sent to the Superintendent Central Jail Tihar

for being made available to the appellant.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE March 09, 2010 mm