Sudhir Kumar vs State Of Delhi
2012 Latest Caselaw 4531 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              CRIMINAL APPEAL NO. 347/1998

                                         Reserved on: 25th July, 2012
%                                        Date of Decision: 31st July, 2012

         SUDHIR KUMAR                           ....Petitioner
                     Through Mr. D.C. Mathur, Sr. Advocate
                     with Mr. M.L. Yadav, Advocate.

                                Versus

         STATE OF DELHI                       ...Respondent
                      Through Ms. Richa Kapoor, APP.

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

SANJIV KHANNA, J.

By the impugned judgment dated 17th August, 1998, the

appellant Sudhir Kumar has been convicted for murder of his wife

Anita. He has been sentenced under Section 302 of the Indian

Penal Code 1860 (IPC, for short) to life imprisonment and pay fine of

Rs.500/- or in default undergo 15 days simple imprisonment.

2. The prosecution's case is that the appellant committed murder

of his wife in the intervening night of 6th & 7th February, 1986. Her

body was found on 7th February, 1986 at about 6.40 AM. She,

however, could not be identified and DD No. 18 was recorded. Her

face was totally crushed. Tyre marks of scooter on the mud were

found. On 8th February, 1986, Ishwar Chand father of Anita identified

the dead body.

3. The prosecution does not rely upon any eye-witness and its

case is based on circumstantial evidence of last seen and motive.

4. To prove that the appellant was last seen with the deceased,

the prosecution relies upon the statement of PW-1 Pushpa who is

married to the brother of the deceased and PW-2 Virender Kumar a

friend of the brother of the deceased who also claims that he had

seen the deceased with the appellant at 5.45/6.00 p.m. on 6th

February, 1986. Reliance is placed on the evidence of PW-5 Shashi

Gupta, sister of the deceased.

5. As per the prosecution's case Anita got married to appellant on

29th November, 1985, two months before the occurrence. In the end

of January, 1986, Anita had come to her parental house at Palam.

The matrimonial home of Anita was at Mehrauli, where she used to

reside with her husband and his parents.

6. PW-1 Pushpa has stated that on 1st February, 1986, appellant

had come to Palam and spoken to Anita for about one-half hour. On

the next day i.e. on 2nd February, 1986, Anita had enquired from PW1

whether she could go and see a movie with Sudhir or whether they

would object to it. PW-1 had replied that they would have no

objection. On 6th February, 1986, Anita had gone to the shop of

Narain Dass and had made purchases including cosmetic items. At

about 5.00/5.30 PM on 6th February, 1986, Anita and her sister were

washing utensils. Anita kept on repeatedly enquiring whether it was

5.30 PM or not. On being questioned, Anita replied that she and

Sudhir i.e. the appellant, were going to see movie and that the

appellant had instructed Anita that she should not reveal this to

anyone and had taken promise from her. She left the house at 5.30

PM. At that time she was wearing firozi saree and maroon coloured

cardigan. She was also wearing bangles, mangal sutra, pajeb and

watch.

7. PW-5, Shashi Gupta had stated that on 6th February, 1986 at

about 5.00 PM, she along with deceased were washing utensils.

Anita was making enquiries whether it was 5.30 PM. At 5.30 PM

Anita stopped washing utensils. She then left the house. PW-5

Shashi had enquired from Pushpa PW-1 what was Anita saying?

Pushpa had then stated that PW-5 should do her work. Anita did not

return home. On 8th February, 1986, she came to know that Anita

had died.

8. It is clear from the statement of PW-1 and PW-5 that they had

not seen Anita with the appellant. PW-5 has stated that there was

conversation between Anita and Pushpa but she was not aware and

know the contents. After some time Anita had gone out of the house.

In the cross-examination PW-1, Pushpa has stated that at about

9.00/9.30 PM, the family members got worried as Anita had not

returned. Shashi, PW-5 had gone to the house of Amit's friend (Amit

is brother of the deceased) to search for her at night. Similarly, PW5

Shashi has stated that she and her brother Amit had gone for search

of Anita at about 9.00 - 9.30 PM on 6th February, 1986. They

returned back at 10.30 PM and were worried. Thereafter, father and

brother Vijender went to the houses of other relatives of Anita. PW-

4, Ishwar Chand father of Anita in his testimony has stated that he

got worried when Anita did not return and had send Shashi and Anil

to search for Anita. They returned back at about 10.45 PM and

thereafter he and Vijender went out to search and returned at 1.00

a.m. next day. In the morning of 7th February, 1986, they continued

the search for Anita but did not succeed.

9. It is, therefore, clear from their statements that the entire

house and all family members were shaken and jolted because Anita

had gone missing. However, surprisingly as per the prosecution's

case, PW-1, Pushpa did not tell and inform other family members

including her husband that Anita had on 6th February, 1986 gone to

see a movie with the appellant. Even when the family members were

perplexed, anxious and were desperately searching for Anita, she

kept quiet and maintained stoic silence. This unnatural conduct

cannot be explained by stating that PW-1 had made a promise to

Anita.

10. PW-4, Ishwar Chand has stated that at 9.00 AM on 7th

February, 1986, he informed the in-laws of Anita. Appellant and his

father came to their house at about 2.30 PM on 7th February, 1986.

At that time also PW-1, Pushpa did not inform and state that Anita

had gone for a movie with the appellant on 6th February, 1986. The

appellant was not confronted. PW-4 kept quiet and did not inform or

talk to anyone about her conversation with Anita on 6th February,

1986.

11. PW-4, Ishwar Chand in his cross-examination has also

admitted and accepted that the appellant and his father had come to

the mortuary at about 3-3.30 p.m. on 8th February, 1986, when the

dead body of Anita was seen for the first time and was identified.

Presence of the appellant and his family members at the cremation is

also admitted by PW-1, Pushpa, who has stated that she had

identified the dead body of Anita. But even at that time, she kept

quiet and did not state that Anita had gone with her husband. Her

silence is unexplainable and casts a grave doubt about the

allegation/statement made by her.

12. The parents of Anita for the first time raised their finger of

suspicion on the appellant and his family members only on 9th

February, 1986. As per PW-1, Pushpa, she had divulged and

revealed to her husband that Anita had gone with her husband to see

movie on 6th February, 1986 for the first time in the night of 8th

February, 1986. The conduct of PW-1 is contrary to normal human

behaviour and is difficult to reconcile the statement with the facts

stated by PW-1, Pushpa regarding the efforts made by the entire

family to locate Anita at night from 9 p.m. onwards on 6th February,

1986 till 1 a.m. of 7th February, 1986. Even in the morning thereafter

on 7th February, 1986 onwards, the family continued to search for

Anita. The appellant and his father had come to their house, then

they came to the mortuary and were present at the cremation, but no

allegation or accusation was made. PW-1, it is inconceivable, would

have remained quiet, if she was aware and have knowledge that

Anita had to go out with the appellant to see a movie. It is not

explained and understood why and for what reason Anita, for that

matter the appellant, would not have wanted other family members to

know that they were going out to see a movie. They were a young

couple and going to a movie theater is not an act, which is frowned

upon or not accepted in the society. It is apparent that the statement

of PW-1 Pushpa, is a cover up and an after thought, as the appellant

and his family members were in touch and present in the house of

parents of Anita on 7th February and then on 8th February, 1986. At

that time, no allegation was made against them. Subsequently, on 9th

February, 1986 allegations of cruelty, dowry harassment and murder

were made against the appellant and his parents.

13. This brings us to the evidence of PW-2, Lans Naik Virender

Kumar. In his cross-examination, PW-2, Virender Kumar has stated

that he was a close friend of Vijender, brother of Anita for last 10-15

years. He had stated that he was on leave and on 6th February, 1986

at about 5.45/6.00 p.m., he was at the railway crossing of the Palam

Colony, when he saw a two wheeler parked with Anita and her

husband Sudhir, i.e., the appellant. He has also stated that Anita had

got married to the appellant 2 ½ months before the said occurrence.

He has stated that on 9th February, 1986, he came to know that Anita

had been murdered. In a voluntary statement, he had stated that he

had left for the house of his aunt and had returned on 9th February,

1986. His statement under Section 161 was recorded on 10th

February, 1986 by the police. In the statement under Section 161, he

did not mention that he had gone to his aunt's house and had

returned in the evening on 9th February, 1986. In the cross-

examination at one place he has mentioned that he had gone to the

house of his aunt on 6th February, 1986 and returned on 9th February,

1986 and at another place he has mentioned that he had gone to his

aunt's house in the morning of 7th February, 1986 and had returned in

the evening of 9th February, 1986.

14. It is difficult to accept his statement and rely upon the same.

His testimony is not trustworthy and credible. There is considerable

delay in recording of the statement under Section 161. The witness

states and claims that he was a close friend of Vijender and had

known him 10-15 years. In such circumstances, it is difficult to

accept that he would have not called or spoken to Vijender, brother of

Anita between 6th February, 1986 to 10th February, 1986 when Anita

went missing and then on 8th February, 1986 when her dead body

was found. He has not given particulars and details of his aunt's

house. He was staying in Palam Colony not very far from the house

of parents of Anita. It was only about a kilometer away, as admitted

by PW-2 in his cross-examination.

15. It is difficult to accept and believe that Anita wanted to go out

with her husband but she wanted to conceal and did not want her

family members to know. We also record that the prosecution has

not placed on record any evidence or material to show and establish

the scooter was used by the appellant. Learned Additional Public

Prosecutor urged that the scooter belonging to the father of the

appellant was seized but subsequently released on superdari.

Prosecution could not connect this scooter with the occurrence. We

may also notice that the appellant was arrested on 18th February,

1986. No additional material and evidence was collected or came to

the knowledge or possession of the prosecution between 10th

February, 1986 to 18th February, 1986. In these circumstances, we

do not find that the evidence of last seen has been established.

16. The second circumstance relied by the prosecution is motive.

Learned Additional Public Prosecutor has submitted that the

deceased was wearing jewellery and even when her body was

recovered, her mangal sutra, bangles etc. were not removed.

Attempt was made to disfigure body and even burn her. Face of the

deceased Anita was smashed. Only a close relative, who had

animus would have indulged in the said act. No attempt was made to

rob the deceased.

17. The appellant and his parents were tried for the offence under

Section 498A but the trial court has acquitted them, including the

appellant, from the charge under Section 498A. The State has

accepted the said decision and has not filed any appeal. The

prosecution had filed and relied upon the hand written letter written

by the deceased Anita to her sister after the appellant and Anita had

visited them at her marital home at Jaipur. The said letter has been

marked as Exhibit PW-6/A. We have examined the said letter but do

not find that the said letter shows or establishes that the relationship

between the appellant and the deceased Anita was sour or had

acquired acerbity. Anita after marriage had shifted to her in laws

residence. She used to feel lonely and did not have much activity or

work to do. She used to miss her parents, her family and home. The

note book placed on record shows that the deceased Anita liked the

appellant and had described the appellant as 'my lovely', 'my love'

etc. PW-7, Meena Goel, sister of Anita in her testimony has stated

that on 22nd November, 1985 Anita and the appellant Sudhir Kumar

were present in a function at the house of her brother-in-law, Nawal

Kishore. Anita had then stated and told PW-7 that the appellant

returns home late at 12 midnight or 1 a.m. and she did not take food

for 3-4 days so that the appellant should start coming home early.

She relied upon a letter written by Anita in January, 1986, which has

been referred to above. Anita had got married to Sudhir on 29th

November, 1985. Thus, the question of Anita staying with the

appellant Sudhir as husband and wife on or before 29th November,

1985 does not arise. Her testimony does not appear to be

creditworthy and truthful. Her testimony does not show that the

relationship had broken down and the appellant within three months

of marriage would have taken an extreme and brutal step. Testimony

of PW-1, Pushpa shows that Anita was close and speaking to the

appellant and was in touch with him even when Anita had come and

was residing in her parental home from end of January, 1986. The

appellant Sudhir and the father had come to their house at Palam on

7th February, 1986 and thereafter had gone to the mortuary as well as

cremation ground on 8th February, 1986. PW-4, Ishwar Chand had

stated that Sudhir had visited their house on 2nd February, 1986 and

had gone back after meeting her daughter.

18. Learned Additional Public Prosecutor has drawn our attention

to the statement made by PW-4, Ishwar Chand to the effect that

when the appellant and his father visited them on 7th February, 1986

at 2.30 p.m., they had stated that they would not accept Anita as she

had gone missing for one night. Appellant's father had remarked that

only dead bodies of such girls were found. It is apparent that the

relationship between the two families had subsequently turned sour

and allegations were made against the appellant and his family

members with the police. We do not think the aforesaid statement

and allegation attributed to the father of the appellant should be

accepted. Having carefully scrutinized the entire testimony, we do

not think that the said testimony or statement by PW-4 or others

justifies the conclusion that the relationship between the appellant

and Anita had broken down and reached the dead end or appellant

hated her and, therefore, had a motive in committing the brutal act.

19. On 18th February, 1986 the appellant was arrested and a

disclosure statement marked Exhibit PW-22/C was recorded. On 19th

February, 1986, clothes allegedly worn by the appellant at the time of

occurrence on 6th February, 1986 were seized vide seizure memo

Exhibit PW-3/A. The said seizure memo refers to the clothes which

were seized but does not indicate or state that they were blood

stained. We may note here that the occurrence was more than ten

days before, i.e, in the intervening night of 6-7th February, 1986. The

FSL report states that traces of blood were found on 23c and d (shirt

and a vest) but they were too small for serological analysis. At the

same time, the report states that blood could not be detected on

sweater, pant and the shirt. (There is contradiction in the report with

regard to the shirt). The said report is marked Exhibit PW-16/A.

20. In the present case, Anita had died a homicidal death and a

brutal one. However, there is lack of evidence to implicate and hold

that the appellant had committed and is responsible for the homicidal

death. The evidence and material placed on record do not satisfy the

need and requirement of law and show that the circumstances were

so connected that it can be held that the appellant and no one else

had committed the said murder. Her death unfortunately still remains

unsolved but in the absence of evidence, which meets the

requirement of law the appellant cannot be penalized and punished

under Section 302 of the IPC. The appellant is entitled to benefit of

doubt and is acquitted. The appeal is accordingly allowed and the

impugned judgment dated 17th August, 1998 is set aside.

-sd-

(SANJIV KHANNA) JUDGE

-sd-

(S. P. GARG) JUDGE July 31, 2012 Kkb/VKR