Smt.Kiran vs State
2012 Latest Caselaw 487 Del

$-14
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                  DECIDED ON : 24th January, 2012
+                           Crl.A.No.416/1997

       SMT.KIRAN                             ....Appellant.
                Through : Mr.Bhupesh Narula, Amicus Curiae.

                                  Versus
       STATE                                        ...Respondent.

Through : Mr.Sanjay Lao, APP for the State.

CORAM:

MR. JUSTICE S. RAVINDRA BHAT MR. JUSTICE S.P.GARG

S.RAVINDRA BHAT, J. (OPEN COURT)

1. The present Appeal is directed against the Judgment and Order passed by the learned Additional Sessions Judge dated 30.06.1997 whereby the present Appellant-Kiran was convicted for the offence punishable under Section 302 IPC and sentenced to undergo life imprisonment with a fine of `500/-.

2. The prosecution's allegations are that during the night intervening 4/5.10.1995, intimation was received by PS Gokalpuri that an incident had occurred at around 1:30 A.M. at House No.D-38, Bhagirathi Vihar, Delhi. The police personnel were deployed; upon reaching the spot, it was discerned that Sukhbir Singh, husband of the Appellant-Kiran had been beaten to death. The police recorded the statement of the informant PW-1 (Ram Pal Yadav), the deceased's father. He claimed to have received information from Nasim, tenant of the deceased, about a

quarrel between the Appellant and her husband (deceased Sukhbir Singh) in the early hours of the morning. He, therefore, rushed to the spot and on the way, informed PW-5 (Rakesh Kumar) who too escorted him. PW-1 went on to say that upon reaching the place of occurrence i.e. at House No.D-33, Bhagirathi Vihar, Delhi, he saw his daughter-in-law, Kiran, inflicting several blows with a sambal (pestle) upon the deceased Sukhbir. The police had received intimation at 2:26 A.M.; after reaching the spot they took Sukhbir to the hospital where he was declared brought dead. On the basis of the report an FIR was lodged; subsequently investigation was carried out during the course of which the Appellant was arrested. She was charged with committing the offence; she denied the allegations and claimed trial. She alleged that the occurrence had in fact taken place at House No.D-38, Bhagirathi Vihar, Delhi where her father-in-law and his family members used to live and not at House No.D-33, Bhagirathi Vihar, Delhi where she lived with the deceased.

3. In support of its case, the prosecution examined 14 witnesses and also relied upon other materials which were placed on record. The Trial Court after considering all these facts concluded that the Appellant's guilt has been established beyond reasonable doubt and accordingly convicted her and sentenced her in the manner described previously.

4. It is urged by Mr.Bhupesh Narula, learned Amicus Curiae appointed on behalf of the Appellant that the prosecution story is utterly unbelievable. He first submitted that the testimony of PW-1 (Ram Pal Yadav) as well as that of PW-10 (Sunil Kumar) is unworthy of credence. Elaborating, it was urged that these testimonies did not stand the basis for convicting the Appellant. Amicus Curiae urged that according to PW-1,

the motive for the crime by the Appellant was property jointly owned by deceased and herself. PW-1 alleged that the Appellant had been trying to persuade the deceased to dispose of that property. At the same time Appellant's counsel submitted that this property was jointly owned by the spouses and the deceased was in fact a property dealer. Under these circumstances, there was no question of the Appellant unilaterally prevailing to have the property sold or that it led her to commit the crime. Counsel also submitted that PW-1 at one stage in his deposition had even leveled allegations about strained relationship between the spouses on account of the Appellant's continuing to maintain a social relationship with her previous husband which was resented by the deceased.

5. It was urged that the prosecution withheld the testimony of most relevant and vital witness i.e. Nasim who, it claimed, had informed PW-1 in the first instance about the quarrel which led that witness to the spot and then witnessing the incident. This constituted a vital infirmity which was not explained by the prosecution. On the other hand, the absence of Nasim made it possible for the prosecution to create a story and introduce the testimony of persons those which did not witness the attack at all. Learned counsel highlighted that the testimony of PW-1 reveals that even though he received information about the quarrel between Appellant and his son, instead of rushing first to that place he went out of his way and visited PW-5 (Rakesh Kumar) and took him there. Counsel points out that, in fact, there is no sketch map or site plan showing the place of occurrence in relation to the other premises in the vicinity. It was next argued that the testimony of the prosecution's witnesses pointed to the earliest intimation and in fact the crime having

occurred not at House No.D-33, Bhagirathi Vihar, Delhi, as was lodged, but had occurred at House No.D-38, Bhagirathi Vihar, Delhi where in fact PW-1 resided. In this regard learned counsel relied upon the testimony of a photographer Ct.Ashok Kumar (PW-3) and also that of the police witness SI Hilarias (PW-11). Both of whom deposed having gone to House No.D-38, Bhagirathi Vihar, Delhi and taken charge of the body and other articles. Counsel also relied upon Ex.PW-11/A, DD recorded in this case at 2:26 A.M., which clearly states that someone had been murdered at House No.D-38, Bhagirathi Vihar, Delhi.

6. Apart from these, counsel further urged that the articles recovered particularly the cot on which Sukhbir is alleged to have been killed and recovered, were not complete; some pieces were missing. Even the seals were missing.

7. Learned APP resisted the submissions and urged that the findings of the Trial Court do not call for interference. It was urged that the testimony of PW-10 (Sunil Kumar) , son of the deceased, (as well as of the Appellant), could not be doubted having regard to the entirety of the circumstances, even if there were some contradictions in the testimonies of PW-1 and PW-5. Counsel urged that PW-10 was in the premises and he had deposed about witnessing the incident. In these circumstances, if there was any confusion with regard to the place of seizure or description of the place in the DD entry, that would not detract from the testimony of ocular witnesses such as PW-10. As regards to other submissions counsel urged that these were minor contradictions which are bound to occur due to imperfect recollection on account of delay in recording the testimonies of the witnesses.

8. We have carefully considered the submissions of learned APP for the State and the learned Amicus Curiae appointed by this Court. We also had the benefit of going through the Trial Court record. The record consistently shows that the earliest material on record as well as the prosecution witnesses uniformly stated that the crime occurred at House No.D-38, Bhagirathi Vihar, Delhi. This in our opinion is a very material circumstance which has not been explained by the prosecution. PW- 3(Ct.Ashok Kumar) in this context deposed in the first instance about having gone and taken photographs at the crime site, at House No.D-38, Bhagirathi Vihar, Delhi. Four months later he turned somersault and clarified that in fact the place of occurrence was House No.D-33, Bhagirathi Vihar, Delhi and not House No.D-38, Bhagirathi Vihar, Delhi. PW-11 (SI Hilarias) was consistent that the crime scene was in fact House No.D-33, Bhagirathi Vihar, Delhi. There is no explanation as to the contradiction between the first statement of PW-3 and the latter statement on the one hand; significantly in a similar manner the prosecution has no explanation why DD No.11/A which was recorded at 2:26 A.M. also described the crime scene as House No.D-38, Bhagirathi Vihar, Delhi. Ordinarily this would not have been a serious discrepancy but for the explanation given by the Appellant in her statement under Section 313 Cr.P.C. where she denied the attack and on the other hand alleged that on account of differences between the deceased and his father i.e.PW-1, he (deceased) i.e. Sukhbir Singh had been taken away by his relatives and was done to death at House No.D-38, Bhagirathi Vihar, Delhi where PW- 1 in fact stayed with his family.

9. As far as the evidence of PW-10 (Sunil Kumar) is concerned, we notice that at the time of the occurrence he was about 11 years old; when his deposition was recorded he was 12 years old. No doubt the testimony recorded in court is damaging since it clearly implicates the Appellant and mentions about an attack by her on his father with a sambal. We cannot, however, ignore a very material circumstance i.e. that the statement of this witness was recorded under Section 161 Cr.P.C. about two and a half month after the incident i.e. on 31.12.1995. Furthermore this witness also stated that during the day time the deceased as well as the Appellant apparently had cordial terms and had gone for a movie and returned after 6:00 P.M. He does not significantly mention about any quarrel between 6:00 P.M. and the time when the incident occurred at 1:30 A.M. This is also a material circumstance which casts a doubt on the prosecution story which the Trial Court, in our opinion, ought not to have ignored.

10. It is also worth noticing that this witness continued to live with deceased's family and there was every possibility of his being tutored, and having deposed against his mother i.e. the Appellant. Even his statement under Section 164 Cr.P.C. was not recorded for reasons best known to the prosecution.

11. In this case the prosecution had alleged that an attack was made with the aid of sambal an iron pestle (5 feet long) and it was seized and a sketch thereof was placed on record. The post-mortem report reveals 14 injuries upon the deceased. The relevant part of PW-2's deposition which contains details of the attack and the nature of wounds reads as follows:

"On 05.10.1995, when I was working at GTB hospital, I conducted post mortem examination on the dead body of Shri Sukhbir Singhy, 32 years, male. Ante mortem injuries on the body were:-

(1) Black eye both sides.

(2) Multiple communitted fracture of skull and facial wounds involving frontal, parietal and temporal wounds, nasal bones, maxilla and orbit bones. (3) Lacerted wound over right infra orbital region of sixe 1.2 X 0.2 X 0.8 CM present 1 CM below the lower eye lip and 0.5 CM below the outer angle of right eye. (4) Contused lacerated wound of size 5X1.5 cm in cranial cavity in right frontal region placed upside down 3 cm above right eye brow and 3 cm lateral to mid line producing a fracture in the underneath wound through the wound brain matter was coming out. (5) Contused lacerated wound of size 3X1 cm X cavity deep place on right front parietal region 1 CM above injury No.4 (6) Contused lacerated wound of size 2.0.8 cm X cavity deep placed on right temporal region 1.5 cm above the right ear.

(7) Contused lacerated wound of size 1X0.2 cms present over right frontal region 1 cm lateral to mid line and 1.5 cm above right eye brow.

(8) Contused lacerated wound left lower arbital area of sixe 2X0.5X0.5 cms present 2 cms below the lower eye lid and 7 cms in front of left ear tragus.

(9) Reddish abrasion of size 2X1 cms present 5.5 cms medial to the interior superior iliac spine and 5 cms lateral to the mid line in the abdomen. (10) Lacerated wound of size 1X0.2X0.5 cms present at the base of the penis on left side. Semi longer abrasion reddish of size 3.5X1 cm present on the medial aspect of left thigh 21 cms above the left knee.

(11) Semi reddish abrasion of size 3X0.5 cms present 3 cms above injury No.11 (12) Lacerated wound of size 1.5X0.5X0.2 cms present 0.5 cms above the base of the penis on left side.

(13) Lacerated wound of size 1X0.3X0.2 cms present at base of left index figure of dorsal area. INTERNAL EXAMINATION:-

Extra vacation of blood under the scalp all over. Skull as mentioned plus linear fracture base of skull anterior and middle cranial fosa bilaterally brain partially present in the cranial cavity weight 700 gms multiple lacerations and haemorrhage. The viscera, clothes and other belongings were preserved. Time since death was about 10 hrs. Cause of death is shock due to extensive head injury likely to be produced by blunt force impact and is sufficient to cause of death in ordinary course of nature. My report is Ex.PW.2/A which is in my hand and bears my signature at point A. I also handed over clothes, viscera, blood sample, bidi, cigarette and match box along with total 8 inquest papers. [At this stage, a sealed parcel bearing the seal of CFSL is opened and an iron red (sambal) is teken out]. Witness states on looking at the said iron rod, that the injuries mentioned in post- mortem report excluding injury No.1 and 12 are possible with this iron rod which is exhibited as Ex.P1.

12. The doctor significantly deposed that two injuries No.11 and 12 could not caused by sambal. The prosecution had no theory as to how these injuries occurred. This too is an important factor which this Court cannot ignore.

13. Now the prosecution allegations are that the Appellant, (the deceased's wife) was responsible for the homicidal attack which caused his death. The allegations are that he was mercilessly beaten with an iron pestle while he was lying on the cot. At the same time it is also alleged that this was preceded by a quarrel, or at least some sounds came from the premises which led to the matter being reported by Nasim to PW-1. PW-1 reached the spot; now if this was the correct position there was at least a

time gap of 5 to 10 minutes. PW-1 alleges that when he reached the spot the attack was still on. No effort was made by him or by PW-5 to rescue the deceased. Another strange circumstance which the prosecution has not explained is how a well built male like the deceased could be at the mercy of the Appellant and receiving repeated blows with iron rod that was heavy and unwieldy as a weapon. Surely initial attack would have altered him to defend himself or to take the weapon from his wife. This creates suspicion regarding the prosecution story; there is complete lack of explanation by the prosecution. It could not produce the primary witness who heard about the attack i.e.Nasim. The entire story thus becomes suspicious and shaky. We also notice that neither Nasim's statement was recorded under Section 161 Cr.P.C. nor was he cited as witness for the prosecution.

14. In view of the above we are of the opinion that the involvement of the Appellant in the instant case is doubtful, the prosecution cannot be said to have proved its case against her beyond any reasonable doubt. The appeal has to succeed; it is accordingly allowed.

(S. RAVINDRA BHAT) JUDGE

(S.P.GARG) JUDGE January 24, 2012 sa