Brij Kishore vs State
2012 Latest Caselaw 4223 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      CRIMINAL APPEAL NO. 321/2009

                                           Reserved on: 5th JULY, 2012
%                                          Date of Decision:17th JULY, 2012

BRIJ KISHORE                                           ..... Appellant
         Through                  Mr. B.S. Chowdhary, Advocate.

                        Versus

STATE                                                 ..... Respondent

Through Ms. Richa Kapoor, APP for the State.

                    CRIMINAL APPEAL NO. 446/2009


GYAN CHAND                                               ..... Appellant
        Through                   Mr. Manoj Sharma, Mr. Pankaj Yadav
                                  and Mr. Kapil Kaushik, Advocates.

                        Versus
STATE                                                 ..... Respondent
                Through          Ms. Richa Kapoor, APP for the State.

CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE S.P.GARG

SANJIV KHANNA, J:

Father and son, Brij Kishore and Gyan Chand by the

impugned judgment dated 24th January, 2009 have been

convicted under Section 302 read with Section 34 of the Indian

Penal Code, 1860 (IPC, for short), for the murder of Anita. The

deceased Anita was wife of Gyan Chand and daughter-in-law of

Brij Kishore. They have been sentenced to imprisonment for life

and fine of Rs. 15,000/- each, to be paid on realization to the

children.

2. The case of the prosecution, which has been accepted by

the trial court, is that the two appellants had committed the said

murder on 22nd February, 2006 at about 2.30 a.m. in room No.

34, Chidyagarh Wali Gali, Plot No. B-1/76, Roshanpura,

Najafgarh.

3. There is no dispute that Anita died an unnatural death by

strangulation on 22nd February, 2006. The factum of the death

stands proved by MLC Ex. PW17/A, written by Dr. Mahesh. The

said doctor had examined Anita in the casualty, and had

declared her brought dead at 3.30 A.M. on 22nd February, 2006.

The MLC Ex. PW-17/A mentions and records that Anita was

brought by her sister Pushpa with alleged history of being

strangulated with chunni around her neck. PW-16, Dr. Parvinder

Singh had conducted post mortem of Anita on 22nd February,

2006. In his report, Ex. PW-16/A and in his statement in court,

he had opined that the death had taken place twelve hours back

and the cause of death was asphyxiation as a result of ligature

strangulation and throttling, which was ante mortem. The injuries

were recent and caused by a soft ligature material. He gave

details of the ligature marks in the report Ex. PW16/A and in his

testimony. We record that the counsel did not question and

challenge the testimony of PW-16 and PW-17 before us.

4. The fact that Gyan Chand and Anita were residing in room

No. 34, Chidyagarh Wali Gali, Plot No. B-1/76, Roshanpura,

Najafgarh is not disputed before us. The said rooms were taken

on rent from PW-6, Kishen Kumar, who has stated that Gyan

Chand and his family members were residing in room Nos. 34

and 35. This fact is also proved from several other testimonies,

which have been noticed below. The plea of Brij Kishore and

Gyan Chand was/is that they were not present in the said rooms

in the night intervening 21st and 22nd February, 2006, when Anita

was strangulated to death and both of them were at the

residence of Brij Kishore located at B-213, Sultanpuri, Delhi. In

support of their contention they had produced Bhagwati, wife of

Brij Kishore, who was examined as DW1.

5. The prosecution relies upon the testimony of PW-1,

Sarwan Kumar, brother of the deceased, PW-2, Pushpa, sister

of the deceased, and her husband, PW-3, Inderpal who have

implicated and blamed the two appellants for the death of Anita.

They also rely on the statement of PW-4, Preeti, daughter of the

deceased Anita, aged 10 years.

6. PW-1, Sarwan Kumar has stated that Anita was married to

accused Gyan Chand and they used to reside in room No. 34/35

along with the three children Preeti, Sonal and Akash. Sarwan

Kumar along with his elder sister Pushpa was also residing in

the same building in room No. 15. At about 2.30 A.M. in the

night of 21st/22nd February, 2006, their niece Preeti came to their

room and complained that her father and grandfather were

beating her mother Anita. They rushed to the room of Anita and

intervened. Gyan Chand had pressed the neck of Anita and was

strangulating her with chunni. Brij Kishore had caught her feet.

The accused fled away from the spot. They removed Anita to

the hospital, where she was declared brought dead. Police

recorded his statement, mark Ex. PW-1/A. He has stated that

Gyan Chand was in the habit of consuming liquor and used to

suspect that her sister had illicit relations with her nephew Bittoo.

7. Our attention was drawn to the site plan of the property

marked Exhibit PW-12/A. The said site plan gives location of

room Nos. 33 and 34 and also shows the bed where Anita was

strangulated. There is another site plan marked Exhibit PW-

20/A, which shows location of both room Nos. 33/34 and 15.

Room No. 15 is the place where PW-1, Sarwan Kumar and her

sister PW-2, Pushpa were residing. The site plan shows that

room Nos. 33 and 34 were located on one end, while room No.

15 was the last room at the other end. However, the two rooms

were close enough and it would hardly take 1 to 2 minutes to

walk from one room to another.

8. PW2 Pushpa has made an identical statement that in the

intervening night of 21st/22nd February, 2006, she was sleeping

in her house. At about 2.30 AM, Preeti d/o Anita came and

stated that her father and grandfather were beating her mother.

She along with her brother Sarwan went to the room of Anita

and saw that appellant Gyan Chand was pressing Anita‟s neck

and strangulating her with a chunni. Brij Kishore had caught

hold of the two legs of Anita. They intervened and examined

Anita. The accused appellants fled from the spot. Anita was

taken to the RTRM Hospital, Jaffarpur in a Rickshaw but was

declared brought dead.

9. PW3 Inderpal, husband of Pushpa PW2, in his testimony

has affirmed that in the intervening night i.e. 21st/22nd February,

2006, at about 2.30 AM, Preeti came and stated that her father

and grandfather were beating her mother Anita. His brother in

law, and wife rushed to the room of Anita and they took Anita to

the hospital. He remained present with the children in the

house. Prior to incident, the accused Gyan Chand and

deceased used to quarrel over Bittoo, his nephew. Gyan Chand

used to drink alcohol.

10. PW-4, Preeti, the daughter of the deceased aged about 10

years was examined without oath. The order sheet dated 7th

March, 2007 records that the Additional Sessions Judge had

spoken to Preeti and had put questions to her to ascertain, if she

was a competent witness. On being satisfied that she was a

mature child and could understand questions to give proper and

rational answers, she was permitted to answer questions without

oath. Preeti has stated that she did not remember the date but it

was night time. Her father and grandfather had given beating to

her mother and killed her. She had gone weeping to the

residence of her uncle Sarvan to call him. Her uncle had come

at the spot. She had remained at the residence of her Mausi.

Her Mausi had not reached the spot.

11. Learned counsel for the two appellants have submitted

that as per the statement of PW4, PW2 Pushpa did not go to the

room of Anita and only PW1 Sarvan Kumar had gone to the said

room. We have examined the said contention and do not think

that statement of PW4 Preeti should be read to discredit

statement made by PW2 Pushpa. PW-4, Preeti had remained

back at the room in which PW1, PW2 and PW3 were residing.

As noticed above, room No. 15 and 33/34 were located on the

same floor and in the same building. The distance was very

small. The relevant and material portion of the statement relates

to the factum that she had seen her father and grandfather, i.e.

the appellants, giving beating to Anita. She, in the cross-

examination, had positively affirmed presence of her grandfather

Brij Kishore and had pointed out that the distance between the

two rooms was only about 10/20 paces. For a young child of

her age, she may not have remembered and recollected the

intricate and minute details. Given the trauma and stress of her

mother‟s death at the hands of her father and grandfather, small

or minor inconsistency in her statement is natural and normal.

12. Learned counsel for the accused appellants submitted that

there are discrepancies in the statements of PWs 1, 2 and 3 and

their conduct was not normal. It is submitted that PW1 Sarwan

Kumar and PW2 Pushpa have stated that the accused Gyan

Chand was pressing the neck of Anita and strangulating her with

chunni and the appellant Brij Kishore had caught hold her feet.

When they intervened, they made them, i.e. appellants/accused,

flee from there. Thus, their conduct was unnatural, as normally

they would not have allowed or forced the appellants to flee. We

have examined the said contention and do not find any merit in

the same. The statements have been recorded in English and

the use of the word "flee" reflects and implies that they had

stopped the appellant accused from continuing with the

offending acts and told them to move or go away. Their primary

concern was to prevent/stop the wrongful act, save Anita,

examine her and ensure her well-being. They may not have

realized at that time that Anita had died.

13. Learned counsel for the appellants submitted that there

are other contradictions in the statement of PWs1, 2 and 3 which

are material and relevant. It was stated that PW1 had deposed

that Preeti had come but had not mentioned about presence of

any other person, whereas PW2, Pushpa had stated that two

ladies were present with Preeti but she did not remember their

names and the ladies had knocked at the door of their room.

The aforesaid statements were made in cross-examination of

PW2. PW1 in the cross examination was not specifically asked

the question, whether Preeti was alone or some other women

were present when the door was knocked. Similarly, PW3 was

not asked any question on this aspect.

14. The contention that no public witnesses, who had collected

at the spot were examined by the prosecution, does not affect

the prosecution case. It does not dent or obscure the statements

of PW-1, 2, 3 and 4. Ramwati, resident of room No. 33 was

cited as a witness and her purported statement under Section

161 Cr.P.C. was placed on record. However, she was not

traceable and the said position is stated and is recorded in the

order dated 7th February, 2008.

15. Learned counsel for the appellants has submitted that PW-

16, Dr. Parvinder Singh, Forensic Medicine, RTRM Hospital had

stated that the „chunni‟ used for strangulating Anita was blue in

colour, whereas in fact the „chunni‟ was green or firoji in colour.

Dr. Parvinder Singh had conducted post mortem of Anita on 22nd

February, 2006 and his statement was recorded in the Court on

15th September, 2007. He has stated that on 1st March, 2006 he

had received one white packet duly sealed with the seal of APS

and on opening, he found one bed sheet, chunni and shawl.

The colours were indicated and stated. Wrong description of the

colour of the chunni, to our mind, does not materially affect the

credibility of the statement made by Dr. Parvinder Singh. This is

not destructive and does not create doubt about the testimony of

the other witnesses. The chunni Ex PW-1/B was identified by the

PW-15, SI Sandeep Kumar and PW-20 Inspector Mahender

Singh. It was seized and sealed on 22nd February, 2006, itself

vide seizure Memo Ex.PW15/A. PW-20 identified the chunni,

bed sheet and shawl as Exh. P1 to P3. The said witnesses were

not questioned/cross examined about the colour of the chunni.

Chunni is also visible in the photograph taken by PW 8, Bhram

Dutt marked as Ex.Pw8/19. It is bluish green in colour.

16. PW-16, Dr. Parvinder Singh, in his evidence has given the

full details of the ligature mark, the sizes and the external and

internal injuries which were found on the body of Anita and had

caused her death. He had come to the conclusion that the

death was due to asphyxia as a result of ligature strangulation

and throttling which was ante-mortem. Nothing to contradict or

doubt the said statement has been pointed out to us. PW-17,

Dr. Mahesh, had examined Anita and had written the MLC

marked Ex. PW-17/A. He had stated that Anita was brought by

her relatives with alleged history of strangulation with chunni

around her neck. He examined her and found that she had

been brought dead. In the cross examination, he has stated that

blood stains were present in her nasal alae.

17. However, we find merit in the contention of the appellants

that evidence of PW-18, Pinki, who is also sister of Anita is not

reliable. She had in her statement claimed that she was residing

in the same room with her brother Sarwan Kumar and had gone

to the room of Anita in the night intervening 21st/22nd February,

2006. She had also stated that the two appellants were

apprehended by Sarwan Kumar at the spot. Her name was not

mentioned by PW-1, Sarwan Kumar, PW-2 Pushpa, PW-3

Inderpal or by PW-4, Preeti. We completely disregard and we

discount her statement. The same is not being taken into

consideration.

18. Another contention raised by the appellants was that

evidence of DW-1, Bhagwati, wife of Brij Kishore has been

ignored. In her statement, DW-1, Bhagwati had stated that at

about 6.30 A.M. either on 21st or 22nd February, 2006, 10-12

police officials came to her house and had asked for Gyan

Chand and Brij Kishore, who were required to come to police

station for 2-3 minutes. Gyan Chand had come to their house at

Sultanpuri, a day before at about 8-9 p.m. He wanted money

from Brij Kishore for making his house. Brij Kishore had told him

that he did not have any money but he could give money in the

morning after withdrawing from the bank. Gyan Chand had

stayed back at Sultanpuri and had spent night with them. Both

of them had been falsely implicated. Gyan Chand, a

mason/contractor had collected Rs.1.5 lacs and required

another Rs.50,000/- for building his house. Reference was also

made to the statements under Section 313 of Cr.P.C. made by

both Gyan Chand and Brij Kishore.

19. The trial court, has rightly discredited and disbelieved the

statement of DW-1, Bhagwati in view of the clear and categorical

evidence on record about the presence of Gyan Chand and Brij

Kishore at the site of the crime and the fact that both of them

were present at B-1/76, Najafgarh. The statement of DW1,

Bhagwati that Gyan Chand had come to the house of Brij

Kishore at Sultanpuri and had spent night between 21st and 22nd

February, 2006 for collection of money for constructing the

house is clearly not believable. DW-1 has stated that Gyan

Chand had already collected Rs.1.5 lacs but required another

Rs.50,000/- to build his house. She had not stated that Rs.1.5

lacs had already been spent and the construction was in

progress. Rs.1.5 lacs is the substantial amount of money. If this

money was available with Gyan Chand, he could have utilized

the same, before asking for any money from his father, Brij

Kishore. Brij Kishore in his statement under Section 313 of

Cr.P.C. had stated that on 21st February, 2006 at about 5 A.M. in

the morning, his son had come to their house at Sultanpuri to

discuss finance/ money for making a house. He stayed back.

At about 6.30 A.M., next day, police officials came and he and

his son Gyan Chand were forcibly taken to police station

Najafgarh. Gyan Chand had also made a similar statement

regarding visit to the house of his father at Sultanpuri on 21st

February, 2006 at 5 A.M. He remained there and at 5 A.M. on

the next day, i.e., 22nd February, 2006, police came and he

along with the father was forcefully dragged to the police station.

Only thereafter, he came to know that his wife was killed. He

has stated that he had collected Rs.1.40 lacs to construct a

room. The plea of the appellants is not acceptable. Evidence of

PW1 to 4 is to the contrary, reliable and credible. Their

statements have been discussed above.

20. In the present case, it is noticeable that the deceased

Anita was taken and brought to the hospital as per the MLC at

3.30 A.M. She was declared brought dead. DD No. 7A, Ex.11/B

was recorded by the police on the basis of report made by the

duty Constable at the hospital at 3.50 a.m. Thereafter, DD No.

9, Ex. PW-11/C was recorded. Statement of Sarwan Kumar,

PW-1/A was recorded and rukka was sent to the police station at

7.10 a.m. FIR was registered. Before that, the police had

started investigation at 4 a.m. after receiving the said DD

entries. The stand/stance of PW1 Sarwan Kumar from the

beginning is the same and he had implicated the appellants. His

presence and the presence of PW2, 3 and 4 at the spot or the

place of crime has not been challenged and questioned.

21. Learned counsel for the appellants submitted that there is

dispute about how and when the appellants were arrested as,

DW-1 had stated that they were arrested at 6.30 A.M. on 22nd

February, 2006 from the house of Brij Kishore at Sultanpuri. As

per the prosecution version, the appellants were arrested from

ISBT bus stop, Kashmiri Gate after 3 P.M. on 22nd February,

2006. PW-15, SI Sandeep Sharma has stated that they went in

search of the accused persons and subsequently apprehended

them at GL 23 bus stop, ISBT, Kashmiri Gate. Personal search

was conducted and personal search memos PW-5/A and B were

drawn. PW-20, Inspector Mahender Singh has made a similar

statement. The said contention of the appellants does not

further or support their contention that the case against them is

fabricated. The statements of witnesses PW-1 to 4 are credible

and clearly show and establish that the two appellants had

killed/ murdered Anita.

22. In view of the aforesaid facts, we do not find any merit in

the present appeals and the same are dismissed. The

conviction and sentence are upheld. In default of payment of

fine, the appellants will undergo simple imprisonment of six

months.

-sd-

(SANJIV KHANNA) JUDGE

-sd-

( S.P. GARG) JUDGE

JULY 17th, 2012 VKR