Ashok Kumar vs State
2010 Latest Caselaw 2504 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


%                           Judgment Reserved on: 7th May, 2010
                           Judgment Pronounced on: 11th May, 2010

+                          CRL.APPEAL No.468/2010

       ASHOK KUMAR                                ..... Appellant
               Through:            Mr.K.K.Manan, Advocate,
                                   Mr.Tarun Goomber, Advocate,
                                   Mr.Gaurav Goswami, Advocate and
                                   Mr.Nipun Bhardwaj, 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?



PRADEEP NANDRAJOG, J.

1. The appellant and co-accused Laxmi (since

acquitted) were charged for the offence of having entered into

a criminal conspiracy to murder Raj Kumari, the wife of the

appellant, and in furtherance thereof having murdered Raj

Kumari between 2:00 AM to 6:00 AM on the intervening night

of 18th and 19th November 2007 at the matrimonial house of

the appellant and Raj Kumari; being the ground floor of House

No.348/A/ Asha Ram Gali No.4, Mandawali, Faizalpur, Delhi.

2.               Vide   impugned    judgment       and       order       dated

18.2.2010,         acquitting   Laxmi,   against    whom           the    only

incriminating evidence which surfaced was of being in the

company of the son of the appellant when the wife of the

appellant was found dead, the appellant has been convicted

inasmuch as his explanation as to how his wife died has been

found to be unsatisfactory and it stands proved that the wife of

the appellant was brutally assaulted with a wooden paaya

(wooden leg of a wooden cot) Ex.P-5 inside the only room

which was the matrimonial house of the parties. The learned

Trial Judge has also held that the confessional statement

Ex.PW-3/D made by the appellant under Section 164 Cr.P.C.

before the Metropolitan Magistrate, Delhi was voluntary, and

since in the said confessional statement the appellant

admitted having murdered his wife the same established the

guilt. The learned Trial Judge has noted that the said

confession was never retracted by the appellant and

pertaining to it being non voluntary, said position was taken

only by the counsel during final arguments, after evidence was

led.

3. The learned Trial Judge has held that the

discrepancy between the rough site plan Ex.PW-14/A prepared

on the day of the incident by Insp.Keshav Kumar and the site

plan to scale Ex.PW-10/A, pertaining to the spot where the

dead body of the deceased was lying when the police reached

the scene of the crime, does not demolish the case of the

prosecution; noting that there were lapses on the part of the

investigating officer while conducting investigation, holding

the same to be innocuous omissions and hence

inconsequential, the learned Trial Judge has held that the

same have to be ignored. Holding that such omissions which

amount to contradictions and hence militate against the meat

or core of the case of the prosecution are alone material.

4. DD N.6-A, Ex.PW-2/A, proved through the mouth of

the author thereof, ASI Nand Kishore PW-2, stands recorded at

5:48 AM on 19.11.2009 at PS Mandawali, containing the

information that a lady has been murdered at House

No.348A/7 Asha Ram Gali, Subedar Chowk, Mandawali. It be

noted that said testimony of ASI Nand Kishore has not been

challenged when he was cross-examined.

5. A copy of said DD entry was handed over to SI Hari

Ram PW-11 who left the police station accompanied by

Const.Shri Pal PW-13. As deposed to by Insp.Keshav Kumar

PW-14, even he received the information. All 3 police officers,

as deposed to by them, reached House No.348A/7 Asha Ram

Gali No.4, Mandawali and saw the dead body of a lady whose

name was disclosed to them as Raj Kumari by another lady

named Raj Bala PW-4, the sister of Raj Kumari. The dead body

was lying with its face up and hand stretched out on the street

just opposite the house in question, with blood all around the

body. They noted trail of blood from the street to inside the

solitary room in the house; the trail passing through an open

court yard in between the room and the street. Crime team

was summoned. HC Subhash PW-12, a photographer was a

part of the mobile crime team, and as deposed to by him, he

took 15 photographs Ex.PW-12/A-1 to Ex.PW-12/A-15 from

different angles; negatives whereof were Ex.PW-12/A-16 to

Ex.PW-12/A-30, as deposed to by HC Subhash. He was not

cross-examined by learned counsel for both accused.

6. 3 photographs show the dead body of Raj Kumari,

with face upward and hands stretched, lying in a pool of blood

on the street which appears to be about 5 feet wide; for the

reason the outstretched hands of the deceased touch the two

edges of the street and hence we can fathom the span.

Photograph Ex.PW-12/A-14 shows a continuous trail of blood

on the floor of a room and the open courtyard abutting the

room. The remaining photographs show a trail of blood in the

room as also a blood stained paaya on one bed and a blood

stained pillow, blood stained towel and a blood stained sheet

on a second bed which is perpendicularly placed to be bed on

which the paaya is lying.

7. There were various other blood stained articles. As

entered in the seizure memo Ex.PW-4/C, 6 exhibits, a cotton

red & white coloured printed sheet stained with blood and a

mat stained with blood (Ex.P-4 collectively). 2 pillows stained

with blood (Ex.P-2 collectively), a light coloured towel having

blue lining, stained with blood, and a T-shirt of a child stained

with blood (Ex.P-3 collectively) were seized. The wooden

paaya Ex.P-5 having blood on one side was seized as entered

in the memo Ex.PW-4/B. Both memos have been signed by

Insp.Keshav Kumar PW-14 as the author thereof and bear the

signatures of Raj Bala, SI Hari Ram and Const.Shri Pal, as

witnesses to the recovery. As deposed to by Insp.Keshav

Kumar, he prepared the rough site plan Ex.PW-14/A showing

therein the position of the two beds inside the room from

where he lifted various exhibits as also the place where the

dead body of Raj Kumari was lying. He marked the track of

the trail of blood leading from the bed wherefrom the two

blood stained pillows and the blood stained bed sheets and

blood stained towel as also the blood stained T-shirt of a child

were picked up by him till where dead body of Raj Kumari was

lying. He recorded therein that the room was approximately

10‟ x 15‟. He further indicated the position of the courtyard,

which occupies the mid half segment of the front wall of the

room and where a door stands affixed being the place of entry

to the room with a store and a kitchen on the western side of

the open courtyard and a bath-cum-toilet on the eastern

boundary of the courtyard. Adjoining the bath-cum-toilet, he

showed the place where staircase commences leading up to

the first and the second floor in the building. He dutifully

recorded that the building was a 3 storeyed building. As

entered in the memo Ex.PW-11/C, he lifted blood sample and

blood control earth from the spot and seized the same.

8. Raj Bala PW-4, the sister of Raj Kumari volunteered

a statement which was recorded; being Ex.PW-4/A by

Insp.Keshav Kumar, in which she informed that she resides at

House No.262/C/568 Bharat Ram Akhada Gali, Mandawali,

Faizalpur since last 12 years and that her sister Raj Kumari

aged 28 years was married to the appellant about 4 years

back. Ashok developed illicit relationship with Laxmi and he

used to give money to Laxmi. Due to this there used to be

tension between Ashok and her sister and that after

consuming alcohol Ashok used to quarrel with her sister.

Yesterday at 9:00 AM in the morning she had visited the house

of her sister when she found Ashok drunk. She counseled

Ashok that he was the father of a child and very soon would be

the father of another child and hence he should live a family

live. Today morning at around 5:30 AM, Raj Kumar, a tailor by

profession, who resides in the neighbourhood of Ashok came

to her and informed her that her sister Raj Kumari has been

injured and she should see her. She reached the house of her

sister and saw her body smeared with blood on the street and

she rang up the police control room. Thereafter the police

came. That Ashok was at the spot and was attempting to flee

but people in the neighbourhood had caught him. That she

suspects that Ashok has murdered her sister and that the

room and the bed is smeared with blood. She desires action

be taken against Ashok and Laxmi.

9. Making an endorsement Ex.PW-14/A beneath Raj

Bala‟s statement Ex.PW-4/A, as deposed to by Insp.Keshav

Kumar PW 14 he sent the statement and the investigation for

FIR to be registered, recording therein that the teherir has

been dispatched from the spot at 7:50 AM on 19.11.2007.

10. As deposed to by ASI Nand Kishore PW-2, he

received the teherir from Const. Shri Pal and registered the FIR

Ex.PW-2/B.

11. Appellant Ashok Kumar was apprehended at the

spot itself and his disclosure statement Ex.PW-11/A was

recorded, probably at the police station without his being

formally arrested. The pair of chappals Ex.P-6 which he was

wearing as also pant and the shirt, Ex.P-7 collectively which he

was wearing were seized as entered in the memo Ex.PW-11/B.

He was formally arrested, as recorded in the arrest memo

Ex.PW-14/C at 3:45 PM.

12. As claimed by the prosecution, Ashok volunteered

to make a confessional statement before the Magistrate and

for this purpose Insp.Keshav Kumar filed the application

Ex.PW-14/L on 19.11.2007 itself before the Duty Magistrate

Karkardooma Courts for recording Ashok Kumar‟s statements

under Section 164 Cr.P.C. It appears that the said application

was actually filed on 20.11.2007 for the reason the Reader of

the learned Duty Magistrate wrote thereon that since the

Magistrate had gone to attend computer training, the

application be put up before the learned Link Magistrate on

22.11.2007. The said writing is Ex.PW-3/B. Another

application being Ex.PW-14/K dated 20.11.2007 was also filed

praying once again that Ashok‟s statement under Section 164

Cr.P.C. be recorded on which the learned Metropolitan

Magistrate passed the order Ex.PW-3/A that it may be put up

before the Link Magistrate today itself.

13. There is nothing on record as to what happened

before the Link Magistrate on 20.11.2007.

14. Another application Ex.PW-4/M dated 22.11.2007

was filed in the Court of the Link Magistrate by Insp.Keshav

Kumar on which an order Ex.PW-3/C was passed by Shri Anand

Swaroop Agarwal, Metropolitan Magistrate, Delhi recording

that Ashok was produced before him at 2:40 PM on 22.11.2007

and he was giving time till 3:15 PM to Ashok so that he could

think over the matter. He directed the police officers to leave

the Court. He wrote that only the Court staff and the Judge

would remain present with Ashok. Thereafter, at 3:15 PM, Shri

Anand Swaroop Agarwal, Metropolitan Magistrate, Delhi

recorded the confessional statement Ex.PW-3/D of Ashok

Kumar. The same reads as under:-

"In the night of Sunday this month after 12:00 O‟clock in between 2:00 AM - 3:00 AM on 19/11/07, I had hit three times a wooden „paaya‟ of the cot on the head of my wife Smt.Raj Kumari. A few days before the incident I had a quarrel with my wife on account of my late coming from my native village. But on the date of incident, there was no quarrel between myself and my wife. I used to reside with my wife and a child, Mt.Ankit Kumar (Anand Kumar) aged about 2½ years.

Further my wife was pregnant with a baby of 7/8 months. On the date of the incident I had slept while watching the TV. Even my wife Smt.Raj Kumari had slept while feeding baby Mt.Ankit Kumar (Anand Kumar). At about 1:45 - 2:00 AM (night) on 19/11/07 I had demanded food from my wife because I am in the habit of taking the dinner at late night hours. I usually use to take dinner after 12:00 O‟clock in the night. On the date of the incident I had demanded the food at about 1:45 AM - 2:00 AM because I had slept i.e. ankh lag gayi thi on the said date while watching the TV. My wife did not got up despite my repeated requests. Even my demand for the tea was not fulfilled by my wife. On this account, I got angry and I had hit my wife on her head with a wooden paaya of a cot but I had not hit on any other part of the body. I had hit my wife on her head with a wooden paaya of a cot lightly two times and with some force third time. I never intended to cause death to my wife.

When my wife was feeling pain and blood had come out of the head on account of injury given by me, I got afraid. Thereafter, I had asked for help from Mr.Dalip Pandey @Rinku, who is residing as a tenant at first floor of my house but he refused to give any help. Thereafter I had gone to bring one three wheeler for taking my wife to hospital: at that point of time I had given my child Mt.Ankit Kumar (Anand Kumar) to my neighbour/relative namely Ms.Laxmi, w/o Shri Ved Prakash R/o Saket Block, Mandawali. I had also asked for help from Pappu Nigam S/o no known R/o in the neighbourhood of above said Ms.Laxmi but he did not give any help to me. Thereafter I had brought one TSR but he refused to carry my wife to the hospital. Thereafter I felt helpless and I did nothing. Thereafter at about 7:00 AM in the morning police came at the spot at the call made by Mr.Dalip Pandey. Thereafter relatives of my wife arrived at my house including my sister-in-law/Sali, Raj Bala @ Rajjo."

15. The learned Magistrate has recorded an order of

even date to the fact that he has explained to Ashok Kumar

that he was not bound to make any confession and if he did so

it would be treated as substantive evidence against him. He

recorded in the order that he has questioned Ashok Kumar

whether he had any fear, coercion or influence of any type or

from any corner to compel him to make the confession to

which Ashok Kumar responded that he was under no such

pressure and was desirous of making a voluntary confession.

16. In the meanwhile, the dead body of Raj Kumari

which had been seized in the morning of 19.11.2007 was sent

to the mortuary of Lal Bahadur Shastri Hospital Khichdipur

where as recorded on Ex.PW-14/H and Ex.PW-14/J, dead body

of Raj Kumari was identified in the mortuary by Ram Prakash,

the brother of Ashok Kumar and Smt.Shanti, mother of Raj

Kumari.

17. Dr.Vinay Kumar Singh PW-16 posted at the

mortuary of Lal Bahadur Shastri Hospital conducted post-

mortem on the dead body of Raj Kumari on 20.11.2007,

commencing the post-mortem at 11:45 AM and prepared the

post-mortem report Ex.PW-16/A recording therein that he had

received the inquest papers at 11:30 AM on 20.11.2007 and

that the dead body was brought at the mortuary at 9:45 AM on

19.11.2007, but surprisingly inspite of noting the fact that the

dead body had been in the mortuary for 25 hours and 45

minutes prior to his commencing the post-mortem thereon,

wrote on the post-mortem report that in his opinion the

probable time of the death was 8 hours to 16 hours prior to the

time he commenced the post-mortem on the dead body of Raj

Kumari. He noted 9 injuries on the dead body; being as

under:-

"1. Lacerated wounds of 7 x 5 cm, bone deep underneath bone was fractured and brain mater was visible, present 4 cm above left ear over left fronto partial reason margins was irregular.

2. Lacerated wound of 3 x 2 cm, bone deep margin irregular present over left frontal region, underneath bone was fractured, 3 cm above medial end of eye brow.

3. Abrasion of 2 x 1 cm present just above lateral end of left eye brow.

4. Abrasion 2 x 2 cm present over tip of left shoulder.

5. Bruise, red in colour of 3 x 2 cm present over thenar aspect of left wrist.

6. Abrasion of 2.5 x 1.5 cm present over back of left hand 2 cm away from left middle finger.

7. Abrasion of 1.5 x .5 cm present over back of left index finger 2 cm away from tip over back side.

8. Bruise red in colour 2 x 2 cm present over back of left hand 4 cm away from middle knucle.

9. Abrasion 1.5 x 0.8 cm present over outer side of left side 3 cm away tip of little finger.

On internal examination in neck, chest and abdomen nothing abnormality was detected and in uterus female fetus was sound of body length 43 cm and 1700 grams weight. In head multiple compound

fracture of skull of left side with brain mater lacerated, meninges torn with internal cranial haemorrhages."

18. He wrote that brain mater was coming out of the

skull which was fractured and that cause of death was cranio

cerebral damage to the brain consequent upon blunt force

impact to the head. He opined that all injuries were ante

mortem in nature and death would have been caused in the

ordinary course of nature. He opined that the death was

homicidal.

19. We note that he wrote on the post-mortem report

that 2 glass bangles and 3 plastic bangles on the right hand

and 3 glass bangles on the left hand were on the person of the

dead body.

20. We note that the paaya Ex.P-5 was not sent to

Dr.Vinay Kumar to list his opinion, whether the 2 fatal head

injuries could be caused by the same. We further note that

when Dr.Vinay Kumar Singh PW-6 proved the report Ex.PW-

16/A, he was not cross-examined as to how can he opine that

the death was homicidal. We are writing said fact for the

reason that there may be a possibility of the injuries being the

result of a person falling from a height. We are recording this

observation for the reason, as would be noted by us

hereinafter, the defence taken by Ashok Kumar was that his

wife suffered the injuries when she fell from the roof of the

house.

21. We are eschewing reference to the various memos

pertaining to Laxmi, the co-accused of the appellant, who has

been since acquitted.

22. Being a little unconventional, the object being to

facilitate the issue being focused straightway, when

incriminating circumstances were put to the appellant as he

was examined under Section 313 Cr.P.C., conscious of the fact

that he had to explain the injuries on his wife since his

presence at the spot was not disputed by him, he said:-

"I am innocent and falsely implicated in this case. I have not killed my wife. She had sustained injuries after falling down from the roof. Rajbala got the present case falsely slapped upon me so as to grab my property as I am in Jail since the date of the incident. I do not know the fate of my property. I had no illicit relationship with Laxmi nor had any acquaintance with her. I was taken to police station immediately after arrival of police to my house and all the proceedings were fabricated by the police in my absence. I had not shown any intention to Insp.Keshav to get my statement recorded before the Court. I was under trauma and sorrow due to untimely death of my wife. I am not aware about my son also. My wife had died accidently and I am innocent."

23. We may note that in respect of the various exhibits

which were seized from his house and the photographs which

were taken he replied that he did not know. Pertaining to his

statement Ex.PW-3/D recorded under Section 164 Cr.P.C.,

which was a confessional statement he stated that being

under trauma due to the untimely death of his wife, he was not

capable of making any statement. Relevant would it be to

note that even at this stage he did not retract his confessional

statement.

24. Now, the photographs referred to above show that

dead body of Raj Kumari was lying on the street. The

explanation of Ashok as to how his wife died is that she fell

from the roof.

25. This takes us straight to the question: Whether the

deceased died when she fell on the street from the roof of her

house or was it that she was injured inside her matrimonial

house and the body dragged out on to the street.

26. The close up photographs of the dead body of the

deceased, which as noted above show the face up and arms

outstretched, show the glass and plastic bangles on her wrists.

All of them are intact. We can understand the plastic bangles

being intact but fail to comprehend as to how can the glass

bangles which we can clearly see on the wrist of the dead

body of the deceased in the photographs, being intact. Not

one has been broken. The photographs do not show any

pieces of broken glass bangles around the dead body.

27. Insp.Keshav Kumar PW-14 who has deposed that he

drew the sketch of the rough site plan Ex.PW-14/A has not

been questioned as regards its contents, and as noted above,

on the said rough site plan he has noted that the building was

a 3 storeyed building. If the deceased fell from the roof, it had

to be from the roof of the 3rd floor and if this be so, there is no

way that the glass bangles on her wrists would not have been

smashed to pieces.

28. This disproves the explanation given by Ashok

Kumar as to the cause of the death of his wife.

29. We have noted hereinabove that the information of

a lady being killed in House No.348/7 Asha Ram Gali No.4,

Mandawali, Faizalpur, Delhi was passed on to the police station

at 5:48 AM. Raj Bala PW-4 has deposed in complete sync with

her statement Ex.PW-4/A and additionally to the various

exhibits being seized at the spot.

30. Raj Kumar, the person whom Raj Bala claims as the

one who informed her that her sister was injured has deposed

as PW-5 and has corroborated the fact that after he saw Raj

Kumari lying on the street at 4:05 AM on 19.11.2007 he went

to Raj Bala‟s house who lived a little distance away and passed

on said information to Raj Bala. It is apparent that by 4:05 AM,

Raj Kumari‟s dead body was on the street outside her house.

31. It is important to note that it was the 19th day of the

month of November in the year 2007. In the city of Delhi by

19th November each year it is pitch dark. By 19 th November

dawn breaks not before 6:15 AM - 6:30 AM. The sun comes

out by 7:15 AM - 7:30 AM. What could have led Raj Kumari to

the roof of the building at such an unearthly hour remains a

mystery, and in our opinion would always remain a mystery for

it is mythical to think of Raj Kumari going to the roof of the

building on the ground floor whereof she resided at such an

unearthly hour.

32. This is our second reason to disprove and hold it to

be false, the explanation furnished by Ashok Kumar, as to the

circumstance under which his wife died.

33. The Supreme Court has visited various situations

where the guilt of a husband whose wife was found dead in her

matrimonial house was in issue. We had re-visited the various

decisions of the Supreme Court in a decision penned by us

(Coram: Pradeep Nandrajog, J. and Suresh Kait, J.) when we

decided Crl.Appeal No.615/2008 Mukesh vs. State, as recently

as 4th May 2010.

34. In para 52 of the said decision we had summarized

the legal position which we could comprehend with reference

to the various kinds of situations dealt with by the Supreme

Court as under:-

"52. Having examined the decisions of the Supreme Court on the point of death of a wife in her matrimonial house, we deem it appropriate to classify the said judicial decisions into undernoted 4 broad categories for the reason we are finding considerable confusion in the minds of the subordinate Judges as to the correct position of law:-

I In the first category fall the decisions where it is proved by the prosecution that the husband was present in the house when the wife suffered a homicidal death and rendered no explanation as to how his wife suffered the homicidal death. (See the decisions reported as State of Rajasthan v Parthu (2007) 12 SCC 754, Amarsingh Munnasingh Suryavanshi v State of Maharashtra AIR 2008 SC 479, Ganeshlal v State of Maharashtra (1992) 3 SCC 106, Prabhudayal v State of Maharashtra (1993) 3 SCC 573, Dynaneshwar v State of Maharashtra (2007) 10 SCC 445, Trimukh Maroti Kirkan v State of Maharashtra (2006) 10 SCC 681, Bija v State of Haryana (2008) 11 SCC 242 and State of Tamil Nadu v Rajendran (1999) 8 SCC 679) II In the second category are the decisions where the prosecution could not prove the presence of the husband in the house when the wife suffered a homicidal death but the circumstances were such that it could be reasonably inferred that the husband was in the house and the husband failed to render any satisfactory explanation as to how his wife suffered a homicidal death. The circumstances wherefrom it could be inferred that the husband was in the house would be proof that they lived in the house and used to cohabit there and the death took place in such hours of the night when a husband was expected to be in the house i.e. the hours between night time and early morning. (See the decisions reported as State of UP v Dr Ravindra Prakash Mittal (1992) 3 SCC 300 and Narendra v State of Karnataka (2009) 6 SCC 61).

III In the third category would be proof of a very strong motive for the husband to murder his wife and proof of there being a reasonable probability of the husband being in the house and having an opportunity to commit the murder. In the decision reported as Udaipal Singh v State of UP (1972) 4 SCC 142 the deceased wife died in her matrimonial home in a room where she and her husband used to reside together. The accused-husband had a very strong motive to murder the deceased which was evident from the letter written by him to his mistress, which letter clearly brought out the feeling of disgust which the accused had towards the deceased. The accused had the opportunity to commit the murder of the deceased as there was evidence to show the presence of the accused in the village where the house in which the deceased died was situated at the time of the death of the deceased. Noting the facts that the accused had a strong enough motive and an opportunity to murder the deceased, noting that there was no evidence that the appellant was seen in his house by anybody, the Supreme Court convicted the accused. IV In the fourth category are the decisions where the wife died in her matrimonial house but there was no evidence to show presence of the husband in the house at the time of the death of the wife and the time when the crime was committed was not of the kind contemplated by the decisions in category II and was of a kind when husbands are expected to be on their job and there was either no proof of motive or very weak motive being proved as in the decision reported as Khatri Hemraj Amulakh v State of Gujarat AIR 1972 SC 922 and State of Punjab Vs. Hari Kishan 1997 SCC Cri. 1211."

35. The instant case falls in the first category of the

decisions noted by us i.e. the wife suffering a homicidal death

and the husband being present in the house but unable to

render any satisfactory explanation.

36. We have already commented, as above, with

reference to the opinion expressed by the doctor who

conducted the post-mortem on the dead body of Raj Kumari as

to how could he categorically opine that the death was

homicidal and have brought out that in the absence of any

weapon of offence shown to him, he could probably not have

rendered such an opinion. Thus, uninfluenced by the opinion

expressed in the post-mortem report, since it is the primary

duty of the Court to return a positive finding on the basis of

the evidence before it, we would be failing if we did not record

our finding that in view of the defence explanation, for the

reasons afore-noted, it cannot be held even to the remote that

Raj Kumari suffered the injuries when she fell from the roof, for

had it been so the glass bangles on her hands would not have

remained intact and we find it most unnatural for her to have

gone to the roof of her house when it was pitch dark. It has to

be held as a logical corollary that the severe head injuries on

Raj Kumari were not the result of a fall from the roof of a 3

storeyed building but as a result of being hit with a heavy

blunt object. As noted above, brain mater was found oozing

out of the fractured skull.

37. In that view of the matter we need to discuss no

further, but do so for the reason, as per the prosecution there

is tell-tale evidence of Raj Kumari being injured inside the only

room of her matrimonial house.

38. While narrating the facts we have noted the names

of Raj Bala PW-4, SI Hari Ram PW-11, Const.Shri Pal PW-13 and

Insp.Keshav Kumar PW-14 as the 4 persons concerned with the

various memos which were prepared at the spot after

Insp.Keshav Kumar, SI Hari Ram and Const.Shri Pal reached

the spot.

39. Whereas Raj Bala PW-4 has deposed with

consistency that at the spot the police picked up the various

exhibits as recorded in the memo Ex.PW-4/B and the memo

Ex.PW-4/C as also duly identified each exhibit produced in

Court as the ones which were lifted from the spot and also

affirmed that her signatures on the two memos were at the

point „X‟ on the said memos, SI Hari Ram PW-11 corroborated

Raj Bala but stated during cross-examination that he could not

state who was the scribe of the said 2 memos as also various

other memos which were prepared from time to time and

which bore his signatures as a witness being the memos

Ex.PW-13/DB, Ex.PW-7/B, Ex.PW-7/A, Ex.PW-14/C, Ex.PW-4/B,

Ex.PW-4/C, Ex.PW-11/A, Ex.PW-11/B, Ex.PW-11/C, Ex.PW-11/E

and Ex.PW-14/A. Further, he stated that when the exhibits

were put inside a parcel, the seal „HR‟ i.e. the seal was affixed

thereon and that thereafter the said seal was handed over to

him.

40. Const.Shri Pal PW-13 to our bewilderment,

commenced his examination-in-chief by throwing a bomb-shell

inasmuch as he said that he does not know anything about this

case. With this sole sentence after his examination-in-chief,

Const.Shri Pal was immediately declared hostile and was

cross-examined by the learned APP and on cross-examination

admitted that the various exhibits mentioned in the memo

Ex.PW-4/B and Ex.PW-4/C were lifted in his presence and that

they were immediately sealed with the seal of „HR‟ and that

his signatures were at point „Y‟ on the same. He admitted that

blood samples and blood control earth from the spot, as

recorded in the memo Ex.PW-11/C were lifted in his presence

and that is signatures are at point „B‟ on the said memos.

41. Insp.Keshav Kumar PW-14 deposed of having

recorded statement Ex.PW-4/A of Raj Bala and having made an

endorsement Ex.PW-14/A and getting the FIR registered. He

deposed to have lifted blood sample, blood control earth as

recorded in the memo Ex.PW-11/C as also various exhibits

which he lifted and as recorded in the memos Ex.PW-4/B and

Ex.PW-4/C. He deposed of having prepared the rough site plan

Ex.PW-14/A. He deposed of having recorded to disclosure

statements Ex.PW-11/A of the accused Ashok. He deposed

that he arrested Ashok as per arrest memo Ex.PW-14/C. He

deposed that he took possession of the pant, shirt and towel of

Ashok as recorded in the memo Ex.PW-11/B. He deposed of

having prepared inquest papers Ex.PW-14/D, Ex.PW-14/E,

Ex.PW-14/F and Ex.PW-14/G. He deposed of having got the

dead body identified in the mortuary as per statements Ex.PW-

14/H and Ex.PW-14/J. He deposed of having made the various

applications before the Metropolitan Magistrate for recording

confessional statement of Ashok as desired by Ashok. He

identified the various exhibits which he had seized. He

admitted that he used the seal „HR‟ belonging to SI Hari Ram

but could not give any explanation as to why he did not use his

seal. He stated that Ex.PW-4/A, Ex.PW-4/B, Ex.PW-4/C, Ex.PW-

11/A, Ex.PW-11/B, Ex.PW-11/C, Ex.PW-11/E and Ex.PW-14/A

were in his own handwriting and that Ex.PW-13/DB, Ex.PW-

7/B, Ex.PW-7/A, Ex.PW-15/C, Ex.PW-14/DA and Ex.PW-14/DD

were not in his handwriting and additionally stated that he

could not state as to who wrote said memos, all of which, we

note bear his signatures as author thereof.

42. He stated that he prepared the rough site plan with

the assistance of Raj Bala. He further deposed that the

various exhibits which he had seized were sent to the FSL

Laboratory, admitting that they were sent after 70 days. He

gave the explanation that the FSL Laboratory did not sent the

priority letter. He admitted that the road certificate when the

exhibits were sent for forensic evaluation was not filed by him

in Court. He tendered the FSL report Ex.PW-14/N which

evidences that the human blood of group „A‟ was detected on

the various exhibits which were seized inside the room as also

on the pant, shirt and chappal of Ashok. He stated that he did

not remember as to whether site plan to scale Ex.PW-10/A was

prepared at his instance.

43. SI Mahesh Kumar PW-10, the author of the site plan

to scale Ex.PW-10/A stated that he prepared the site plan at

the instance of the investigating officer.

44. It may be noted that the place where dead body of

Raj Kumari was lying has been shown in the site plan to scale

at a considerable distance from the place where it is shown in

the rough site plan Ex.PW-14/A. To this extent, there is a

hiatus between the two site plans. It may further be noted

that in the site plan to scale, spot „A‟ listed is the bed inside

the room wherefrom the blood stained bed-sheet, the blood

stained pillows, blood stained towel and the blood stained T-

shirt of a child were lifted and it additionally stands recorded

that this was the spot where Raj Kumari was killed.

45. Time to note and deal with the submissions urged

during arguments of the Appeal.

46. It was urged that wherefrom Insp.Keshav Kumar

wrote on the rough site plan Ex.PW-14/A or required SI Mahesh

Kumar to record on the site plan to scale Ex.PW-10/A that Raj

Kumari was killed on the bed inside the room at spot „A‟ when

he was not an eye-witness.

47. Now, what has happened is explainable. One may

not see something but may see something of the kind from

which the human mind may perceive something to have

happened. If a person sees pillows soaked with blood on a bed

as also blood stains on the bed sheet and notices a towel and

a T-shirt with blood stains on the bed, the percipient human

mind, would automatically reach the conclusion, or so would it

lead itself to believe, that somebody has been assaulted at the

said spot and if the dead body of that somebody is found a

little distance away with a trail of blood from the bed till the

spot where the dead body is lying, the belief would be that the

person was assaulted at spot „A‟. Thus, we do not find this to

be an aberration and hence there is no question of using the

same to discredit the investigation.

48. It was urged that Insp.Keshav Kumar has recorded

that he prepared the rough site plan with the help of Raj Bala

and Raj Bala could not have seen the crime as she was not an

eye-witness. Thus, both site plans have to be ignored and if

this be so there is no proof that the various blood stained

exhibits were lifted from spot „A‟. We see no effect of

Insp.Keshav Kumar recording that he prepared the rough site

plan with the help of Raj Bala, for the reason he needed no

help. He has picked up from spot „A‟ the 2 pillows which were

stained with blood, the bed sheet which was stained with

blood, a towel which was stained with blood, a T-shirt of a child

which was stained with blood and from the floor next to the

bed, a mat also stained with blood. Having lifted the same

from the spot he saw the spot and could so record. Similarly,

the place where dead body of Raj Kumari was lying was seen

by him and he could so record through the medium of seeing

through his eyes. He picked up a paaya stained with blood on

seeing the same on the bed adjoining the bed at spot „A‟ and

thus could list the said spot as „B‟ as a result of his personal

knowledge. Likewise, he could list the spot „D‟ where he saw

the dead body. He could mark spot „C‟ giving the spot an

elliptical shape as the one where he saw the trail of blood, for

he saw the same. The said spots can be visually seen by us in

the photographs Ex.PW-12/A-1 to Ex.PW-12/A-15. Thus, it

hardly matters that Insp.Keshav Kumar wrote that he prepared

the rough site plan with the assistance of Raj Bala.

49. The weak argument sought to be advanced that the

photographs are neither here nor there, has to be noted and

rejected for the simple reason HC Subhash PW-12 who has

proved the said photographs with reference to their negatives,

deposed that he reached the place of incident as a part of the

crime team and took the photographs; he has not been

subjected to any cross-examination. Photographs of the scene

of crime act as the eyes of the Court and tell their own story

and if proved to be the photographs of the scene of the crime,

are substantive evidence and are akin to direct and percipient

evidence pertaining to the scene of the crime.

50. It is unfortunate that Const.Shri Pal PW-11 had to be

declared hostile and then only did he admit to be a witness to

the various memos signed by him as a witness as correctly

reflecting what was lifted from the place of the crime.

Corroboration to the various exhibits being lifted from the spot

is to be found through the testimony of Raj Bala, Const.Shri

Pal, SI Hari Ram and the author of the memos pertaining to the

said exhibits being lifted i.e. Insp.Keshav Kumar.

51. With reference to the testimony of Insp.Keshav

Kumar who could not identify who scribed some of the memos

prepared by him as also with reference to the testimony of ASI

Hari Ram who could not throw light as to who scribed the

various memos, the controversy of Insp.Keshav Kumar not

rendering any explanation as to who scribed some of the

memos does not relate to the memos Ex.PW-4/B and Ex.PW-

4/C which pertain to the blood stained exhibits lifted from the

scene of the crime. It also does not relate to the memo Ex.PW-

11/C which records blood samples and blood control earth

lifted by him from the spot.

52. Thus, the blemishes while conducting investigation

by Insp.Keshav Kumar, not relating to the material evidence

have to be ignored for the simple reason it is settled law that

lapses conducted during investigation require only such

relatable evidence to be ignored as gets tainted and such

evidence which remains intact and emerges with credibility

has to be taken note of by the Court. See the latest decision

reported as 2008 (16) SCC 372 Aqeel Ahmed vs. State of U.P.

53. Similarly, the hiatus between the site plan to scale

and the rough site plan, pertaining to the spot where dead

body of Raj Kumari was lying, has to be ignored by us for the

simple reason we have better evidence to show us where the

dead body was lying through the medium of the photographs

Ex.PW-12/A-1 to Ex.PW-12/A-15.

54. It was urged that the purity of transmitting the

various blood stained exhibits to the FSL Laboratory has not

been proved inasmuch as the road certificate under which

they were sent from the malkhana to the FSL Laboratory has

not been proved.

55. It is unfortunate that Insp.Keshav Kumar did not file

the road certificate and prove the same, by which road

certificate the various exhibits were sent to the Forensic

Science Laboratory. It is equally unfortunate that Insp.Keshav

Kumar did not use his seal to seal the various exhibits which

he lifted. It is unfortunate that having used the seal of SI Hari

Ram he returned the seal to SI Hari Ram, thereby diluting the

act of sealing the various exhibits. His negligent act would

have under normal circumstances dented the credibility of the

recovery of the various exhibits from the spot as claimed by

the prosecution, but fortunately, we have before us the

photographs of the scene of the crime and these photographs

were taken before the various incriminating exhibits were

seized and we can clearly see the blood stained paaya Ex.P-5

as also the blood stained bed sheet Ex.P-4 as also the blood

stained pillows Ex.P-2. A towel can be seen by us but not any

stains thereon for the reason it is partially eclipsed by a table

just adjoining the bed on which the towel is placed. The trail of

blood from the bed passing through the room and thereafter

the courtyard leading up to the dead body can be seen by us.

The trail of blood can also be seen on the street till the place

where the dead body is lying.

56. It is also unfortunate that the paaya Ex.P-5 was not

sent to Dr.Vinay Kumar PW-16 for his opinion. It is equally

unfortunate that Dr.Vinay Kumar PW-16 wrote on the post-

mortem report that the probable time of death was 8 hours to

16 hours prior to when he commenced the post-mortem,

ignoring that on the same form he has himself written that the

dead body was received in the mortuary at 9:45 AM on

19.11.2007 and that he was conducting the post-mortem after

25 hours and 45 minutes, commencing the same at 11:45 AM

on 20.11.2007. We note that said conduct of his had given

birth to an argument that who knows whether at all the dead

body to which the post-mortem report relates is that of Raj

Kumari. We have on record the memos Ex.PW-14/H and

Ex.PW-14/J which record that the younger brother of appellant

Ashok and the mother of Raj Kumari identified the dead body

in the mortuary. Besides there is other evidence to prove that

the dead body was that of Raj Kumari. He has written on the

post-mortem report that glass and plastic bangles were on the

wrists of the dead body which conforms to the photographs of

the dead body taken at the spot where the crime was

committed.

57. We conclude on this issue by confirming the view

taken by the learned Trial Judge that notwithstanding

blemishes during investigation there is overwhelming evidence

to establish that Raj Kumari was fatally assaulted and a heavy

blunt object was struck on her head inside her matrimonial

house. So great is the force used that the brain mater was

found coming out of the fractured skull.

58. Re-visiting the defence i.e. the explanation of the

appellant that his wife suffered the injuries when she fell from

the roof, having ruled out the fall from the roof on to the street

outside, we may only add that the question of the deceased

falling from the roof inside her living room does not arise for

the reason nobody can tumble and fall inside a room through

the roof unless there is evidence that the roof had a puncture

or a ventilation opening on the roof. The question of there

being a puncture or a ventilation opening does not arise

inasmuch as there are 2 floors above. Further, no suggestion

has been put to the witnesses of the prosecution that it was

possible for a person to fall from the roof inside the living

room, which was the matrimonial house of Ashok and his wife.

59. Pertaining to the confessional statement Ex.PW-3/D

made by the appellant before the learned Metropolitan

Magistrate, the controversy was that the accused was

produced before the learned Magistrate at 2:40 PM and only

35 minutes cooling time was given to the accused to think

over and at 3:15 PM the confessional statement was recorded.

It was urged that the learned Magistrate ought to have given

proper time after informing the accused the consequences of

his confession to the crime and should have called the accused

the next day and if still he desired a confession to be recorded,

then alone the confessional statement ought to have been

recorded.

60. Mr.M.N.Dudeja, learned Additional Public Prosecutor

stated that this argument would have held good if the accused

was produced from police custody. Learned counsel pointed

out that no investigation being required to be conducted with

the assistance of the accused, appellant was sent to judicial

custody on 20.11.2007 and he was produced in Court from

judicial custody on 22.11.2007. Since appellant had expressed

a desire to make a confessional statement before the

Magistrate on 19.11.2007 itself an application was filed on

19.11.2007 itself for getting recorded his confessional

statement but since the Duty Magistrate was not available an

attempt was made to get the confessional statement recorded

on 20.11.2007 even said event failed. The confessional

statement was recorded on 22.11.2007. Meaning thereby, the

appellant got sufficient opportunity to think about the

consequences of his statement.

61. We render no conclusive opinion on this debate and

leave the question open for further debate, for the reason

even while excluding the confessional statement of the

appellant, we have proof of the fact that the wife of the

appellant i.e. the deceased was fatally assaulted prior to 4:05

AM on 19.11.2007 in the only room which was the matrimonial

house of the appellant and his wife. The appellant‟s presence

in the house has not only been proved but has been admitted

by him. Law required the appellant to render a satisfactory

explanation as to how his wife suffered the injuries and in the

absence of any such explanation the guilt is plain upon the

appellant. Having rejected the explanation furnished by the

appellant and noting the various decisions of the Supreme

Court in category-I, as noted in para 52 of our decision in

Crl.Appeal No.615/2008 and as reproduced in para 34 above

we dismiss the appeal returning a finding of our concurrence

with the view taken by the learned Trial Judge. But before

bringing the curtains down would highlight the issue which

needs to be further debated in law on confessional statements

being recorded before the learned Magistrates.

62. As noted above, as per the State the confessional

statement was recorded on 22.11.2007 and application for the

same being recorded was filed on 19.11.2007, the date on

which the appellant desired to make a confession. The

appellant was in judicial custody since 20.11.2007 and thus

had enough time to ponder over his desire to make a

confession thus, the 35 minutes cooling period given by the

learned Magistrate on 22.11.2007 before recording the

confessional statement was enough. The argument of the

other side was that the cooling off period requires to be given

by the Magistrate is after the accused is aware of the

consequences of his making a confessional statement. The

issue would be of an informed consent. From the side of the

accused the plausible argument would be that it may be

possible that the accused had some faint and gibberish

knowledge of making a confession with justification for the

conduct hoping that he may be let off with a lesser sentence

and only when full contours of the nature of his act attracting a

serious penal law is made known to him would it be the

requirement then to give time to him after the said informed

consent is obtained. Since learned counsel just touched upon

the issue by projecting the rival views without a full fledged

debate and a look into precedents as none were cited on the

issue, we have advisedly left the question open.

63. The appeal is dismissed.

64. Since the appellant is in jail we direct that a copy of

the instant decision be sent to the Superintendent, Central Jail

Tihar, for being made available to the appellant.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE

MAY 11, 2010 dk