Sanjay @ Vicky vs The State (Nct Of Delhi)
2010 Latest Caselaw 5204 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 Crl. MB No. 1369/2010 in Crl.A. No.1151/2010

%                              Date of Decision: 16.11.2010

Sanjay @ Vicky                                              .... Appellant
                           Through Mr.Rameshwar Dayal, Advocate

                                          Versus

The State (NCT of Delhi)                          .... Respondent
                   Through Mr.Lovkesh Sawhney, APP

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR.JUSTICE S.L.BHAYANA

1.       Whether reporters of Local papers may                YES
         be allowed to see the judgment?
2.       To be referred to the reporter or not?               NO
3.       Whether the judgment should be                       NO
         reported in the Digest?

ANIL KUMAR, J.

*

Crl. MB No. 1369/2010

This is an application under Section 389 read with Section 482 of

the Criminal Procedure Code for suspension of appellant‟s sentence and

to release him on bail. The appellant/ applicant has been convicted and

sentenced in Sessions Case No.14 of 2009, tilted as „State v. Sanjay @

Vicky‟ by order of conviction dated 18th August, 2010 and by order

dated 27th August, 2010 sentencing him to life imprisonment and a fine

of Rs.20,000/- for the offence under Section 302 of Indian Penal Code

and in default of payment of fine to further undergo simple

imprisonment for a period of one year.

The appellant/applicant has contended that he has a very good

prima facie case in his favour. The appellant/applicant has asserted

that the balance of convenience lies in his favour and he will suffer

irreparable loss and injury in case the order of sentence dated 27th

August, 2010 is not stayed.

The appellant/applicant has further contended that he is in

custody since 5th November, 2008 and his latest nominal roll dated 9th

November, 2010 reveals that he has already undergone 1 year 11

months and 27 days of custody and he has earned remission of 10 days

and his jail conduct has also been satisfactory. It is also asserted on his

behalf that his appeal is not likely to be heard in near future.

The respondent has filed the status report stipulating that on 10th

October, 2008 an information was received about suicide being

committed at 34/459 Trilokpuri, Sai Baba Mandir, and on reaching the

spot the ground floor of the house was found to be opened having a

decomposed female dead body inside the diwan. The deceased was

identified as Sangeeta, the daughter of Sh. Suresh Kumar and she was

married to the appellant/applicant one year back and was living with

the appellant/applicant at the said house on rent. The father of the

deceased had disclosed before the Executive Magistrate that his

daughter was harassed for dowry. The mother of the deceased had also

disclosed that the mother-in-law of her daughter had come to their

house and had demand dowry.

The appellant/applicant was arrested on 4th November, 2008 and

he had confessed to the killing of his wife on the night of 7th October,

2008 by strangulating her and thereafter putting her body in the box of

the diwan and then her wrist and throat were cut with a shaving blade.

The accused had then closed the box of diwan and had fled after locking

the house. The shaving blade by which the wrist and the neck of the

deceased were cut was recovered at his instance and the trial court

after considering the evidence and the documents had convicted the

appellant/applicant.

Learned counsel for the appellant has very vehemently contended

relying on the testimony of the Dr. Vinay Kumar Singh who was

examined as PW-11 that since no abnormality was found in the brain of

the deceased and the said witness also admitted that whenever any

body feels shock, brain receives and retains such shock immediately,

therefore, had the deceased‟s writs and neck been cut, there would have

been an abnormality in the brain which was not there and this

deposition belies the allegation of the prosecution. According to him,

brain haemorrhage cannot cause of the shock.

Learned counsel also contended that had there been any shock to

the brain there would have been changes observed in the neurons in

the brain. Learned counsel, however, is unable to show any medical

treaties in support of his contention. The plea of the learned counsel is

based on his own assumption and on the basis of the same, it cannot

be held that the deceased had not died as was propounded by the

prosecution. The neck and the wrists of the deceased were also found to

be cut and in the circumstances on the basis of the deposition of PW-

11, as has been interpreted by the learned counsel, it cannot be

inferred that the neck and the wrists of the deceased were not cut.

Rather Dr. Vinay Kumar Singh, PW-11 had admitted that in his opinion

the cause of death was due to shock and haemorrhage consecutive

upon cut throat injuries and incised injuries Nos.1 to 3 which was

described as incised wound over middle front of neck; another incised

wound horizontally placed over right wrist and incised wound

horizontally placed over front of left wrist joint.

Learned counsel has also emphasized that FSL report reveals that

three `Gatharis‟ (bundle of clothes) did not have the blood of the

deceased. It has also been contended that relying on one of the FSL

report that though human blood was found on the steel container

wooden pipe, however, blood grouping was not done and in absence of

blood group of the appellant, he cannot be inculpated with the alleged

crime.

From the perusal of the record, it is evident that from the accused

a black colour bag was recovered and from the bag 1 key, 18 torn pages

of diary, one paper receipt issued by Shri 1008 Swami Turiyanand

Satsang Sewaashram of Rs.150/- dated 18th October, 2008 were

recovered. On the back of the receipt, the appellant had written his

confession. One wooden mala and the weapon of offence were also

recovered at his instance. The sample handwriting and signature of the

appellant were taken and the writing and signature at of the back of the

receipt were compared and the handwriting expert has opined that the

person who wrote the writing and signature at the back of the receipt

was also the writer of the specimen writing and specimen signatures.

Writing on Ex.PW-9/A at the back of the receipt issued by Shri

1008 Swami Turiyanand Satsang Sewaashram is as follows:

(I am Sanjay "I have killed Sangeeta. Reason is infidelity (mistake of her father, mother and sister) and I love her so much like Shiv and Parvati" I have committed offence in the fit of rage but could not learn to live without her so I will suicide. I kill myself. Thank Sanjay").

According to the learned counsel for the appellant the writing

could not be relied on as the specimen handwriting were taken contrary

to the provision of law and he has relied on (2007) 7 JCC 1617 relying

on Sukhvinder Singh v. State of Punjab, (1994) 5 SCC 152.

The learned counsel for the appellant/applicant was asked

whether the specimen handwriting taken by the police official under

Section 4 of the Identification of Prisoners Act, would be admissible or

not, has not been answered by him. The learned counsel is also unable

to disclose whether the sample handwriting taken under Section 4 of

the Identification of the Prisoners Act would be covered under the said

provision or not.

Per contra the learned Additional Public Prosecutor has relied on

Puran Mal v. Director of Investigation (Inspection), (1974) 1 SCC 345 to

contended that in India relevant evidence cannot be excluded merely on

the ground that it is obtained by illegal search or seizure or contrary to

the provisions of certain Act where the consequence of not complying

with the provisions are not provided. Where the test of admissibility of

evidence lies in relevancy, unless there is an express or necessarily

implied prohibition in the Constitution or other law, evidence obtained

as a result of illegal search or seizure is not liable to be shut out. The

learned counsel for the State has also relied on State (NCT of Delhi) v.

Navjot Sandhu, (2005) 11 SCC 600 to contend that non compliance or

inadequate compliance with the provisions of an enactment does not

per se affect the admissibility unless the consequences of non

compliance or inadequate compliance have been spelt out specifically.

The precedent relied on by the learned counsel for the appellant

is also not applicable and is clearly distinguishable. In Sukhvinder

Singh (supra) relied on by the learned counsel, the specimen writings of

Sukhdev Paul were taken under the directions of Tehsildar, Executive

Magistrate. No enquiry and trial in this case were pending in the Court

of the Tehsildar, Executive Magistrate. The enquiry and trial in this case

were pending under TADA before the Designated Court only. The

Hon‟ble Judges in these circumstances were of the view that the

direction given by the Tehsildar, Executive Magistrate to the appellant

to give his specimen writings was clearly unwarranted and not

contemplated or envisaged by Section 73 of the Evidence Act and

consequently such sample handwritings and signatures were not

considered. The learned judges had laid emphasis on the application of

S. 73 of the Evidence Act in light of the proceedings pending before a

court and a direction issued by the same. There were also inherent

ambiguities as to the fact of the letters reaching the hands of the police

officials, as the prosecution‟s explanation for the same was opposed by

the mother of the deceased. These are not the facts in the case of the

appellant and in the circumstances, it cannot be contended that the

sample handwriting and signatures taken from the appellant could not

be considered for comparison of writing and signatures on the back of

the receipt which was recovered from the bag of the appellant

confessing that he has murdered his wife.

For the foregoing reasons, it cannot be held that the receipt with

the admission of the appellant in his writing that he had killed his wife

Sangeeta on account her infidelity will not be admissible and cannot be

relied on as has been contended on behalf of the appellant. The version

of the prosecution is that the deceased was throttled by the

appellant/applicant and then her body was stuffed in a box and his

neck and wrist were cut by a blade. In the circumstances, it cannot be

held that all the clothes would be stained with the blood and three of

the articles as pointed out by the learned counsel for the

appellant/applicant do not have human blood, will not be sufficient to

show prima facie that the appellant/applicant was not involved in the

matter.

The learned counsel has very emphatically contended that what

was recovered from the appellant/applicant was a belt and not a bag

relying on testimony of PW-9 Gagan Kumar. In the circumstances, it is

contended that the recoveries of the papers of diary and the receipt

containing admission on the part of the appellant/applicant have not

been established. However, perusal of the testimony of PW-9 Gagan

Kumar clearly stipulates that bag was recovered from the

appellant/applicant containing some papers. Although it has also been

incorporated that the appellant/applicant was holding a belt but that

appears to be a typographical mistake as the paper etc. and other

things which were recovered from the appellant/applicant could not be

from the belt but were from the bag as has also been deposed by the

said witness. In any case, the appellant/applicant would not be holding

a belt and it must be that he was holding a bag. In any case in the facts

and circumstances, prima facie it cannot be held that the bag was not

recovered from the appellant/applicant so as to doubt that the other

papers and the receipt containing admission of the appellant/applicant

were not recovered from him.

The suspension of sentence is also sought on the ground that the

appellant/applicant has already undergone sentence of about 2 years

and he is the only son of his parents and the appeal is not likely to be

heard in the near future. This cannot be a ground to suspend the

sentence. The Court is hearing the appeals of 2010 where accused are

under custody and in the circumstances the appellant/applicant

cannot contend that his appeal of 2010 is not likely to be heard in near

future and on this ground, the sentence of the appellant cannot be

suspended nor is he entitled to be released on bail.

In the totality of the facts and circumstances and considering the

brutal manner in which the murder of the wife of the

appellant/applicant was committed by throttling her and stuffing her

body into the trunk and cutting her wrists and neck with a blade, this

Court is not inclined to suspend the sentence of the appellant and to

release him on bail. The application is therefore, without any merit and

it is dismissed.

ANIL KUMAR, J.

S.L.BHAYANA, J.

NOVEMBER 16, 2010 „VK‟