Delhi High Court

Ram Naresh @ Lala vs State on 26 April, 2011

Author: Badar Durrez Ahmed

       THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Judgment delivered on: 26.04.2011

+      CRL.A. No.995/2009


RAM NARESH @ LALA                                             ..... Appellant

                     versus

STATE                                                         ..... Respondent

Advocates who appeared in this case:-

For the Appellant : Dr Rameshwar Dayal, Mr Bhupender Chaturvedi and Mr Gaurav Kumar, Advocate.

For the Respondent : Mr Sanjay Lao, Addl. Standing Counsel

CORAM:-

HON'BLE MR. JUSTICE BADAR DURREZ AHMED HON'BLE MS. JUSTICE VEENA BIRBAL

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 the Digest? Yes

BADAR DURREZ AHMED, J (ORAL)

1. By virtue of the impugned judgment dated 11.05.2009 delivered in

Session Case No. 19/2008 by the learned Additional Sessions Judge, Delhi,

the appellant Ram Naresh @ Lala has been held guilty for the offence

punishable under Section 302 IPC for the commission of murder of Suman,

who was residing with him as his wife in a room on the second floor of

House No. 37A, Gali No. 1, Chanderlok, which fell within the jurisdiction of

Police Station Mansarovar Park on the night intervening 21/22.07.2004. The

appellant is also aggrieved by the order on sentence dated 13.05.2009,

passed by the said Additional Sessions Judge, whereby the appellant was

sentenced to a term of imprisonment for life and also to pay a fine of `

5,000/-, in default whereof, he was to further undergo imprisonment for a

period of 6 months. The benefit of Section 428 of the Criminal Procedure

Code was given to the appellant.

2. The case of the prosecution is that the appellant Ram Naresh @ Lala

and the deceased Suman were living as husband and wife, though not

actually married, in a room on the second floor of House No. 37A, Gali No.

1, Chanderlok, Delhi. It is the case of the prosecution that the appellant was

in a habit of consuming liquor and thereafter entering into quarrels with

Suman and even beating her at times. The prosecution case further is that

Suman had a brother Raju (PW7) who was also residing in Delhi, but at

Pooth Kalan, Rohini, Delhi. She also had a nephew by the name of

Ravinder who was a minor at the time of the incident. It is the case of the

prosecution that Suman had come from a village in Auraiyya, U.P. along

with her said nephew Ravinder, to Delhi. They had initially stayed with

Suman‟s brother Raju, at Pooth Kalan. However, they had thereafter shifted

to the appellant Ram Naresh‟s room at Chanderlok, Delhi. However, some

time before the date of the occurrence, Suman‟s nephew Ravinder had

stopped residing with Ram Naresh @ Lala. This being the position,

according to the prosecution, at the time of the incident it was only Ram

Naresh @ Lala and Suman who were residing in the room which Ram

Naresh had taken on rent on the second floor of the said premises. The case

of the prosecution further is that on 21.07.2004, both the appellant and

Suman were seen quarrelling by the other tenants and the owner of the said

house. They were also seen on the terrace of the said house where they were

said to have gone off to sleep. Thereafter, the other inmates of the house

went off to sleep in their respective rooms. The case of the prosecution

further is that in the morning of 22.07.2004, PW2 Ram Rani, who was a

tenant in an adjoining room on the second floor and who was working with

Suman in the same factory, had sent her younger daughter to call Suman.

The daughter had returned to tell her mother that Suman was not responding

to her calls and was not getting up. Thereafter, PW2 Ram Rani is said to

have gone into the room and found that Suman was lying dead on the sofa

and her body was cold. Thereafter, other inmates of the said house also

came to learn about the death of Suman. The appellant, however, was not

found to be in the house. He was arrested only on 23.07.2004 at about 5.00

p.m.

3. The learned counsel for the appellant submitted that this was a case of

circumstantial evidence and that before the prosecution could establish the

guilt of the appellant, the prosecution had not only to make out a clear case

of proving each of the circumstances but also of further establishing that the

said circumstances taken together formed a complete chain which pointed

unerringly towards the guilt of the appellant. It was the contention of the

learned counsel for the appellant that neither the circumstances nor the chain

has been established. First of all, the learned counsel for the appellant

submitted that the prosecution has not been able to even establish as to

whether the death of Suman was homicidal or suicidal. He referred to the

testimony of PW8 Dr Arvind Kumar, who is the doctor who conducted the

post mortem examination, to point out that the said doctor has not given any

definite opinion as to whether the death of Suman was the result of murder

or suicide. He also referred to the testimony of PW8 to indicate that the said

doctor could not even give a definite opinion about the ligature mark present

over the neck as to whether it was caused due to hanging or strangulation. It

was also pointed out by the learned counsel for the appellant that the rope

which was alleged to be the murder weapon was not shown to the doctor at

the time of the post mortem examination to elicit any opinion from the said

doctor as to whether the death could have been caused by it.

4. He further pointed out that subsequently the rope (Ex. PW8/B) was

shown to the doctor and his opinion was taken, which was to the effect that

the ligature mark as mentioned in the post mortem report could not have

been caused by the rope given for examination. In other words, even the

murder weapon, that is, the rope which the prosecution was seeking to

establish, was discarded by virtue of the opinion of the said doctor.

5. Apart from this, the learned counsel for the appellant has further

stated that as per the appellant‟s answers to questions while recording his

statement under Section 313 Cr.P.C., it is apparent that the appellant was not

even present at the time of the occurrence. He also submitted, with

reference to Ex.PW10/C which was the statement given by PW5 Ramshree,

who is the mother of the deceased Suman, at the time of inquest

proceedings, that Ram Naresh @ Lala had given a phone call to her on

22.07.2004 at about 10-11.00 a.m. and told her that Suman had hanged

herself. Therefore, it was the contention of the learned counsel for the

appellant that this corroborated the theory of suicide which was a possibility

in view of the opinion of the doctor PW8 Dr Arvind Kumar who had

conducted the post mortem examination. The learned counsel for the

appellant also submitted that as per the FIR Ex.PW9/A there is clear

evidence that in the room in which Suman‟s body was found, there is an iron

girder on which there is a hook for hanging a ceiling fan but there was no

ceiling fan. From this, the learned counsel for the appellant sought to make

a submission that Suman perhaps committed suicide by putting the rope

through the hook and hanged herself there.

6. The learned counsel for the appellant also submitted that PW4

Raghuraj and PW 6 Ram Kishan Panchal who were cited by the prosecution

as witnesses for the extra judicial confessions allegedly made by the

appellant had turned hostile and that part of the story of the prosecution was

also belied. It is in this backdrop that the learned counsel for the appellant

submitted that the prosecution has not been able to prove its case beyond

reasonable doubt.

7. Mr Lao appearing on behalf of the State supported the impugned

judgment and order on sentence and submitted that even though the opinion

of the doctor PW8 Dr Arvind Kumar is not definite as to whether the death

of Suman was as a result of murder or suicide, the other circumstances

clearly point towards murder and not towards suicide. He further submitted

that since it is established that the death of Suman was homicidal, there is no

escape for the appellant. He made this statement on the basis of the fact that

it has been established in evidence that the appellant Ram Naresh and

Suman were residing together in the said room as husband and wife for

several months prior to the incident. He also submitted that it has come in

evidence and particularly by virtue of the testimonies of PW1, 2 and 3 that

on 21.07.2004 it is only Ram Naresh and Suman who were residing in the

said room. He also submitted that these three witnesses i.e. PW1, 2 and 3

have clearly stated that they had seen Ram Naresh and Suman quarrelling at

around 9.30 p.m. on 21.07.2004 and that thereafter they had gone to the

terrace and gone off to sleep at about 10.30 p.m. He further submitted that it

is also established that when Suman‟s dead body was discovered in the

morning of 22.07.2004, the appellant was missing and he continued to be

missing till his arrest on 23.07.2004 at about 5.00 p.m. The fact that the

appellant was absconding, according to the learned counsel for the State, is

also a circumstance which would go against the appellant unless an

explanation is offered for the same. According to Mr Lao, the appellant had

an opportunity to explain his absence but he has not done so in his statement

recorded under Section 313 Cr.P.C. For all these reasons, the learned

counsel for the State submitted that the impugned judgment and order on

sentence ought not to be interfered with and the appeal ought to be

dismissed.

8. We have heard the arguments of the counsel for the parties and have

gone through the entire evidence on record.

9. We find that insofar as PW4 Raghuraj and PW 6 Ram Kishan Panchal

are concerned, they were introduced by the prosecution as witnesses for the

alleged extra judicial confession made by the appellant before them.

Unfortunately for the prosecution, both these witnesses have resiled from

their earlier statements recorded under Section 161 Cr.P.C. They have not

supported the prosecution case in court. Therefore, the prosecution cannot

derive any advantage from these two witnesses. The other material

witnesses, to our minds, are:- PW1 Ram Singh, who is the owner of the

house in question; PW2 Ram Rani, who is a tenant in the adjoining room on

the second floor; PW3 Sanjay, who is also a tenant in the second floor of the

said house; and PW8 Dr Arvind Kumar, who is the doctor who conducted

the post mortem examination.

10. We begin by considering the testimony of PW8 Dr Arvind Kumar.

He has stated clearly that Suman‟s death was caused due to asphyxia as a

result of compression of the neck by a ligature. He further stated that no

definite opinion about the ligature mark present over the neck could be given

as to whether it was caused due to hanging or strangulation. Further, he

stated that at the time when he conducted the post mortem examination, no

rope was shown to him and, finally, that he could not give any definite

opinion as to whether it was a case of murder or suicide. He has also stated

that the time since death was between 24 to 36 hours prior to the conduct of

the post mortem examination which was done on 23.07.2004 at about 12.00

noon. This would make the time of death around midnight of

21/22.07.2004.

11. PW1 Ram Singh who, as pointed out above, is the owner of the house

and is also a resident of the first floor thereof stated that there were three

rooms on the second floor of the said house. Ram Naresh was a resident of

one of the three rooms and was residing there with his „wife‟ and was paying

a monthly rent of ` 500/-. He also stated that one person used to come and

visit them (Ram Naresh and Suman) from Pooth Kalan. He also stated that

Ram Naresh was in a habit of consuming liquor. He further stated that on

21.07.2004 there was a quarrel between Ram Naresh and Suman and

thereafter both of them went to the terrace of the house to sleep and he (PW1

Ram Singh) came down to his room and slept. He stated that it is in the

morning that he came to know that Suman had died and her dead body was

on the sofa of their room. He also stated that there is one gate in the house

and that in the morning the gate was open. Of course, in cross examination a

slight contradiction has been elicited by the defence counsel to the fact that

Ram Naresh and Suman had gone to the terrace and that Ram Naresh had

come down to his room. However, the fact remains that this witness has

clearly testified that there was a quarrel between Ram Naresh and Suman

and that thereafter both of them had gone to the terrace of the house.

12. He has also testified that in the morning Suman was found dead on the

sofa of her room and that at that point of time Ram Naresh was missing from

the house. The defence had given a suggestion to him that the deceased

Suman had illicit relations with him. This suggestion, of course, was

negated by the said witness.

13. PW2 Ram Rani, who was a tenant in the adjoining room, stated that

Suman used to work with her in the same factory. On that date itself while

returning from the factory Suman had come ahead and she remained in the

market to purchase certain vegetables. However, when she reached the

second floor she found that Suman was crying and she had told her that Ram

Naresh had beaten her up after consuming liquor and that Suman had not

prepared any food that night. She also testified that Suman along with Ram

Naresh were last seen together by her on 10.30 p.m. on 21.07.2004. She

further stated that in the next morning she sent her younger daughter to call

Suman because they were to go to work to the factory. Her daughter

returned and told her that Suman was not getting up whereupon PW2 Ram

Rani went to Suman‟s room which was open and found her lying dead on

the sofa and her body was also cold. While in cross examination she stated

that Suman‟s nephew also used to reside with them but she denied the

suggestion that the nephew was present on the date of the incident. In fact,

she stated that the nephew had left one month ago.

14. PW3 Sanjay, who is also a tenant of one of the rooms on the second

floor, stated that Ram Naresh had consumed liquor on 21.07.2004 and that a

quarrel had ensued between Ram Naresh and Suman and that Ram Naresh

had even slapped Suman in his presence. However, subsequently, both Ram

Naresh and Suman went to the terrace. This witness further testified that at

10.30 p.m. he had seen both Ram Naresh and Suman on the roof. He also

stated that after the discovery of the dead body of Suman the next morning,

Ram Naresh was found absconding along with his bag.

15. Negativing the suggestion given by the defence, the witness stated

that Suman‟s nephew was not residing with her.

16. In his statement under Section 313 Cr.P.C., the appellant has mostly

answered the questions by giving the answer "It is incorrect" or "I do not

know". He also denied that Suman was his wife. However, he did not

specifically deny that she resided with him. In the answer to question no. 4

he had stated that "On that day I left the room in the morning for plying the

rickshaw and on the next day appellants apprehended me at about 11-12.00

noon." However, the appellant did not offer any explanation with regard to

the death of Suman.

17. In fact, we may point out that the suggestions given by the learned

defence counsel at the time of cross examination of the witnesses indicated

that Suman had illicit relations with PW1 Ram Singh or that Suman‟s

nephew had killed her or that it was a case of suicide, however, none of them

were brought out in any of the answers given by him in his Section 313

Cr.P.C. statement.

18. From the aforesaid evidence on record, it is clearly established that:-

(i) The appellant Ram Naresh @ Lala and Suman were living as

husband and wife, though not actually married, in a room on the

second floor of House No. 37A, Gali No. 1, Chanderlok, Delhi;

(ii) On 21.07.2004 and for some time prior to that date it is only

Ram Naresh and Suman who were living in the said room;

(iii) Ram Naresh and Suman had a quarrel at around 9-9.30 p.m. on

21.07.2004 which was seen by PW1 Ram Singh, PW2 Ram

Rani and PW3 Sanjay who were all natural witnesses being

inmates of the same house;

(iv) After the quarrel, both Ram Naresh and Suman went to the

terrace of the house;

(v) Ram Naresh and Suman were seen sleeping on the terrace of

the house at 10.30 p.m. on 21.07.2004;

(vi) No other person slept on the terrace on that night;

(vii) Suman was found lying dead on the sofa of their room on the

second floor;

(viii) The post mortem doctor PW8 Dr Arvind Kumar clearly opined

that the cause of death was asphyxia as a result of compression

of the neck by ligature;

(ix) At the time of discovery of the dead body of Suman and till his

arrest on 23.07.2004 at 5.00 p.m., the appellant was missing from the

house.

19. In the backdrop of these circumstances, which are clearly established

beyond doubt, the only thing that needs to be confirmed is whether the death

of Suman was suicidal or homicidal. This is because the doctor could not

give a definite opinion as to whether the case was one of murder or suicide.

Consequently, this question would have to be answered looking to the other

evidence on record. Let us assume that it is a case of suicide as was sought

to be suggested before us by the learned counsel for the appellant. This

much is clear from the opinion of PW8 Dr Arvind Kumar that the cause of

death was asphyxia as a result of compression of the neck by ligature. The

question of Suman strangulating herself is clearly ruled out as that is not

possible. The only other way in which Suman could have committed

suicide, given the manner of her death, was through hanging. A suggestion

was made by the learned counsel for the appellant, referring to the FIR, that

there was a hook in the room which was for the purposes of hanging a

ceiling fan but there was no ceiling fan and that the same could have been

used for suspending the rope from which Suman hung herself and committed

suicide. Let us assume this scenario to be true for the time being. If it were

so, then Suman would have died hanging and therefore her body would have

been discovered in a hanging position. But this is not the case. Her body

was found as if it was placed on the sofa. There was no rope or other

ligature material wounds around her neck and it is obvious that once she had

died she could not have come and laid down on the sofa. Therefore even if

we were to believe the theory propounded by the learned counsel for the

appellant that Suman somehow or the other managed to hang herself from

the hook in the ceiling of the room, there is no explanation whatsoever as to

how her body was found lying on the sofa. Somebody must have intervened

and placed her body on the sofa. Nobody other than the appellant could

have done that. This is all the more so because all the witnesses namely

PW1, 2 and 3 have testified in clear terms that there was only one gate in the

house and nobody could have jumped into the house either over the wall or

across the terrace. Furthermore, the appellant in his Section 313 Cr.P.C.

statement, which we have already referred to above, clearly stated that he

left in the morning of 22.07.2004 for plying his rickshaw. Thus, it is only he

and he alone who could have placed Suman‟s body on the sofa.

Consequently, it was for him to have offered an explanation as to how he

found Suman‟s body. Had it been a case of suicide, he would have clearly

stated that he found her hanging from the ceiling and that he had taken her

down and then placed her body on the sofa. There is no such explanation.

On the contrary, he has stated that he left in the morning for plying the

rickshaw. This is clearly a circumstance which goes against the appellant.

20. In fact, the above discussion clearly indicates that the theory of

suicide is not at all compatible with the circumstances which are already

established by the prosecution. It is only the theory of homicide which is

compatible with the circumstances which stand established on the basis of

evidence on record. And, if it is a case of homicide, as we believe it to be,

then it is only the appellant who could have caused the homicidal death of

Suman and no other person. In this connection, we may also refer to the

Supreme Court decision in the case of Trimukh Maroti Kirkan v. State of

Maharashtra, (2006) 10 SCC 681 and particularly to paragraphs 15, 21 and

22 which read as under:-

"15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.

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21. In a case based on circumstantial evidence where no eyewitness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court. [See State of T.N. v. Rajendran [(1999) 8 SCC 679 : 2000 SCC (Cri) 40] (SCC para 6); State of U.P. v. Dr. Ravindra Prakash Mittal [(1992) 3 SCC 300 : 1992 SCC (Cri) 642 : AIR 1992 SC 2045] (SCC para 39 : AIR para

40); State of Maharashtra v. Suresh [(2000) 1 SCC 471 : 2000 SCC (Cri) 263] (SCC para 27); Ganesh Lal v. State of Rajasthan [(2002) 1 SCC 731 : 2002 SCC (Cri) 247] (SCC para 15) and Gulab Chand v. State of M.P. [(1995) 3 SCC 574 : 1995 SCC (Cri) 552] (SCC para 4).]

22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of H.P. [(1972) 2 SCC 80 : 1972 SCC (Cri) 635 : AIR 1972 SC 2077] it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with "khukhri" and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra [(1992) 3 SCC 106 : 1993 SCC (Cri) 435] the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 CrPC. The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal [(1992) 3 SCC 300 : 1992 SCC (Cri) 642 : AIR 1992 SC 2045] the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that the wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were

in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of T.N. v. Rajendran [(1999) 8 SCC 679 : 2000 SCC (Cri) 40] the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime."

21. In the facts of the present case, we find that Suman‟s body was

discovered in the room in which only Ram Naresh and Suman were residing.

There is no evidence to show that anybody else had entered the room after

Suman and Ram Naresh were last seen on the terrace of the house at 10.30

p.m. on the night of 21.07.2004. It was for the appellant to give an

explanation as to how Suman‟s body was found lying on the sofa inside the

room. This is all the more so because in his Section 313 statement he has

stated that he left the house in the morning on 22.07.2004 for plying his

rickshaw. Suman‟s death has been opined to have been caused around the

midnight of 21/22.07.2004. This clearly indicates that if the appellant were

to be believed that he left for plying his rickshaw in the morning then,

surely, he knew that Suman was already dead. Taking these circumstances