Ashad vs The State (Gnct) Of Delhi
2013 Latest Caselaw 5325 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Judgment reserved on : 06.11.2013
                                    Judgment delivered on:20.11.2013

+      CRL.A.1077/2010
       ASHAD                                               ..... Appellant
                             Through:     Ms. Rakhi Dubey, Adv.
                             Versus

       THE STATE OF (GNCT) OF DELHI         ..... Respondent
                     Through: Mr.Sunil Sharma, APP

+      CRL.A.1288/2011
       SHIKSHA                                             ..... Appellant
                             Through:     Ms. Anu Narula, Adv.
                             Versus

       THE STATE OF (GNCT) OF DELHI         ..... Respondent
                     Through: Mr.Sunil Sharma, APP

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 On 07.07.2005, Raj Kumar (deceased) was murdered. His dead

body was recovered from an iron box of his house bearing No. 236, Gali

No. 8, Amar Colony, New Delhi.

2 This murder was reported in the local police station on

09.07.2005 by Jai Pal (PW-6) on the information given to him by his

grandson, Master Govind (PW-1) who had allegedly witnessed this

incident of murder.

3 The statement of PW-1 (Ex.PW-1/A) had formed the basis of the

rukka pursuant to which the present FIR No. 543/2005 was registered

under Sections 302/506/201/34 of the IPC. This FIR was registered

against five persons of whom two of them are the appellants before this

Court i.e. Shiksha and Ashad. The other two accused Amjad and

Mukesh have been acquitted by the trial Court; the fifth accused namely

Lale has been declared a proclaimed offender.

4 As per the eye-witness account, on the fateful day i.e. on

07.07.2005 at about 07:30 PM Ashad and two other persons had come

to their house to visit his mother Siksha. He heard his mother telling her

associates that her husband used to harass her upon which they stated

that they would teach him a lesson. On the asking of his mother PW-1

went to sleep. 2-3 hours later, he heard a noise; he thought that his father

had returned home; on peeping down from his room which was on the

first floor, he saw that his mother and Ashad had caught hold of his

father; both of them were throttling his neck; his father was screaming.

PW-1 shouted. He was threatened by the accused not to disclose this

incident to anyone. He went back to his room. On coming out again, he

saw his mother and Ashad putting the body of his father in a gunny bag;

the gunny bag was kept in front of the gutter of their house; when he

again for the third time came out of his room, he saw that the gunny bag

was missing from there. At that time, co-accused Mukesh was with his

mother.

5 PW-1 had narrated this incident to his grandfather Jaipal. This

was in the morning of 09.07.2005. PW-6 had come to Delhi on the

information given by his nephew Suresh (PW-2) informing him that his

son was missing since the last two days. PW-2 was in fact living with

the deceased and the family of the deceased. Both of them were working

at a petrol pump.

6 Jaipal (PW-6) was the father of the victim. He was living in the

native village Muzaffarnagar, UP at the time of the incident. He has

been informed by his nephew PW-2 about the missing of his son; he

reached Delhi in the morning of 09.07.2005 when his grandson (PW-1)

had narrated the incident to him on the basis of which he had lodged the

complaint with the Police.

7 The son of PW-6 and the brother of the victim Babu Ram has

been examined as PW-7. He was also a resident of their native village.

His version is to the effect that accused Shiksha was living in the village

along with them wherein she had developed intimacy with co-accused

Ashad who had his fields nearby. On learning of this, Shiksha was sent

to Delhi by their family to live with her husband. His testimony being to

the effect that Shiksha and Ashad had an illicit relationship which as per

the version of the prosecution was the motive to eliminate the deceased.

8 SI Kashmira Singh and HC Upender Singh (PW-15) were first

police personnel who reached the spot to initially investigate the case.

The investigation was thereafter handed over to Inspector Gajender

Singh examined as PW-9. Crime team had been summoned to the spot.

Photographs were taken by constable Sanjeev Beniwal (PW-13);

positives were proved as Ex.P-1 to Ex. P-18 and negatives were proved

as Ex.P-19 to Ex.P-36. From the spot, exhibits were lifted which

included one cream coloured bed-sheet (Ex.P-1) vide seizure memo

Ex.PW-2/A. No finger prints were found.

9 Accused Shiksha was arrested vide seizure memo Ex.PW-9/C.

Her disclosure statement (Ex.PW-12/A) was recorded. Pursuant to her

disclosure statement, a foul smell was found to be emanating from the

room; an iron box was kept in the room; on opening it, it was found to

contain a jute bag which when opened revealed the dead body of the

deceased Raj Kumar. The dead body was identified by PW-1 and PW-6.

Accused Ashad was arrested on 14.07.2005 at the pointing out of a

secret informer from under the Loni flyover vide arrest memo Ex.PW-

9/H. His disclosure statement (Ex.PW-9/K) was recorded.

10 As noted supra, the trial Court has given benefit of doubt to the

other co-accused namely Amjad and Mukesh noting that qua Amjad, the

identification of the accused has not been fully established and as far as

the co-accused Mukesh was concerned, evidence qua him was also not

sufficient to nail him.

11 The statement of appellant Shiksha was recorded under Section

313 of the Cr.PC. She pleaded innocence; in answer to question No. 7,

she stated that PW-1 her elder son was living with his grandfather in the

native village at the time of the incident; the dead body was also not

recovered from her house.

12 In the statement of co-accused Ashad, he also pleaded innocence;

submission being that he has been falsely implicated in the present case.

13 No evidence in defence was led by either of the appellants.

14 This was the sum total of the evidence collected by the

prosecution against the appellants on the basis of which the trial Judge

had convicted both of them for the offences under Sections

302/201/506/34 of the IPC.

15 On behalf of accused Shiksha submissions have been made by

Ms. Anu Narula, Advocate. Her submission being that the testimony of

PW-1 who is a child witness has to be received by the Court with great

caution and circumspection; children are prone to tutoring and this is

one such case where the child witness appears to have been tutored;

submission being that it has come in the statement of the accused under

Section 313 of the Cr.PC that PW-1 was in fact living with his

grandfather and was not an eye-witness. It is also inconceivable that

when the other two children of the appellant were admittedly in the

same house, such a heinous offence could have been dared to have

committed by the appellant; these circumstances are inconsistent with a

guilty mind. Further submission being that there was a property angle

attached to this murder and to substantiate this argument attention has

been drawn to the testimony of PW-6 who has in his deposition

admitted that the property i.e. the house at Amar Colony where the

deceased and his family were residing has been sold after two months

from the date of the incident i.e. in September, 2005. On this score it is

submitted that it was an unnatural conduct on the part of a father to have

sold the house which was co-owned by both the victim and himself

within such a short span i.e. within two months of the date of death of

his son and this was for no other reason but to grab the property of this

son. In this context, attention has also been drawn to the testimony of

PW-2 who in a part of his cross-examination has admitted that the

deceased was not on speaking terms with his brother Babu Ram; further

submission on this score being that PW-6 in his deposition had stated

that he has only two sons i.e. the deceased and Lokender; it was only on

a sustained and repeated cross-examination that he admitted the fact that

he also had a third son namely Babu Ram; submission being that it was

a conspiracy hatched by PW-6 along with his sons to grab the property

of the deceased which had in fact led to this incident. Attention has also

been drawn to a status report which has been filed before this Court by

the prosecution (dated 23.05.2012) wherein it has come on record that

this property has been sold by PW-6 in September, 2005 and after that it

had changed hands several times. On this count, submission being that it

is enough for the defence to create a dent in the version of the

prosecution and for which a benefit on this score must be given to the

accused; the case of the prosecution must thus fail. The dead-body has

also not been recovered at the behest of the appellant; there was also no

evidence to connect the bed-sheet with the crime as there is no expert

opinion evidencing the fact that the death of the victim had in fact been

caused by the bed-sheet which had allegedly been recovered at the

instance of the appellant. On all counts, the appellant is entitled to a

benefit of doubt and a consequent acquittal.

16 On behalf of the second appellant Ashad, arguments have been

addressed by the learned amicus-curiae Ms. Rakhi Dubey. She had

adopted the submissions made by the accused Shiksha. The foremost

submission made by the learned counsel is that the testimony of PW-1 is

suspect; it has to be viewed with a greater caution as apart from the fact

that he is a child witness and such a witness is susceptible to pressures;

even otherwise, the prosecution has not answered as to why his

statement under Section 164 of the Cr.PC had not been recorded. His

statement under Section 161 of the Cr.PC alone was recorded and his

deposition in the Court was eight months later when admittedly in this

intervening period he was living with his grandfather and was tutored to

advance the version of the prosecution. Reliance has also been placed

upon AIR 1998 SC 2726 Panchhi and Others Vs. State of Uttar

Pradesh; submission being that such a child witness is a susceptible

witness and can easily be swayed by what others tell him and can also

be easily tutored. His testimony is liable to be discarded. The learned

trial Judge having disbelieved the version of PW-1 and doubting his

credibility qua the role of Mukesh and Amjad; same benefit should also

be accorded to the present appellant and on the ground of parity alone he

is also entitled to an acquittal as his role is no different from the role of

Amjad and Mukesh. Further submission being that there was a family

angle attached to this crime; family angle being that PW-6 and his sons

wanted to grab the property of the deceased for which purpose this

entire story has been set up. Testimony of PW-7 in the context of motive

is also suspicious as it has come in his version that there were two

villages in between the fields of the family of the in-laws of Shiksha and

of Ashad; the question of their developing an intimacy while working in

the fields could not have arisen. No recovery has also admittedly been

made pursuant to the disclosure statement of the present appellant. On

all counts, he is also entitled to a benefit of doubt and a consequent

acquittal.

17 Arguments have been refuted by the learned public prosecutor.

Submission being that the learned counsels for the appellants have failed

to dislodge the version of PW-1; although admittedly he is a child

witness yet there is no reason as to why he would depose against one

parent i.e. his mother Shiksha but for the reason that he was speaking

the truth; further submission being that the motive for the crime which

was the illicit relations between Shiksha and Ashad has come not only in

the version of PW-7 but also in the versions of PW-2 and PW-6.

Attention has also been drawn to the testimony of Ratan Lal (PW-3)

who was the earlier employer of Ashad and Amjad who had stated that

Shiksha used to make telephone calls on his mobile in order to speak to

Ashad establishing the close connection between the two co-appellants.

Further submission being that on no count does the judgment of the trial

Judge calls for any interference.

18 Record has been perused. We have also heard and appreciated the

submissions advanced by the learned counsel for the parties.

19 This is an eye-witness account. It is not a case of circumstantial

evidence. There is only one eye-witness to the incident. The said eye-

witness is closely related to the parties i.e. to the appellant Shiksha and

to the deceased Raj Kumar. He is the son of the parties. He is a boy aged

13 years and as per the case of the prosecution, he had witnessed this

incident on 07.07.2005 as the incident had occurred in their house. The

whole case of the prosecution in fact revolves upon the version of PW-1.

If this Court accepts the version of PW-1 as a reliable and cogent

testimony, there would be little defence left with the appellants. Vice-

versa if this Court dis-believes the version of PW-1, the further evidence

collected by the prosecution will have to be gone into a greater depth to

conclude as to whether the links in the chain of the circumstances set up

by the prosecution stand complete or not.

20     We shall now examine the version of PW-1.

21     PW-1 is master Govind. He has on oath testified in Court on

09.03.2006 i.e. after about seven months of the incident. He was

between 12-13 years at the time of the incident i.e. at the stage of

puberty; in his growing years. A preliminary round of questions had

been put to the witness before he was asked to depose on oath. The trial

Judge being satisfied that the witness was able to understand and

comprehend the questions put to him, his statement on oath was

recorded.

22 Before adverting to his version on oath in Court, it would be

relevant to state that it was the statement of PW-1 which had become the

basis of the FIR. It was on his statement that the FIR had been

registered. His statement had been recorded in the morning of

09.07.2005 i.e. almost after 1- ½ days after the incident. We shall also

have to examine whether this delay of 1- ½ days in lodging the

complaint before the police has been satisfactorily explained or not.

23 PW-1 on oath in Court has stated that he was residing in house

No. 236, Gali No. 8, Amar Colony, Delhi along with his mother, father

and his younger brother and sister. Accused Ashad often used to come

to their house. On 07.07.2005 at about 07:30 PM in the evening Ashad

along with two other persons had come to his house; his mother told

Ashad and his associates that her husband (deceased Raj Kumar) used to

harass and trouble her. Ashad told her that he would solve the problem

and teach him a lesson. PW-1 was asked by his mother to go to sleep.

PW-1 used to sleep on the roof and he went off to sleep. 2-3 hours later,

he heard some noise; he woke up thinking that his father had returned

home; on peeping down he saw the said persons fighting with his father;

he came down; he saw his mother Shiksha and Ashad had caught hold

of his father pressing him down on the cot; another person (Amjad) was

sitting on his legs; the fourth person caught had hold of the hands of his

father; his mother Shiksha and Ashad were throttling the throat of his

father with a bed-sheet. PW-1 screamed; he was threatened by the

accused to leave otherwise he would meet the same fate; his mother

again threatened him to go up-stairs. PW-1 saw his mother and Ashad

putting the body of his father in a gunny bag held by Amjad and other

persons. The top of the gunny bag was tied. PW-1 went up-stairs. He

was afraid and was crying. 2-3 hours later he came down and found that

all other persons had left except his mother; he saw his maternal uncle

(co-accused Mukesh) standing with his mother and the gunny bag lying

near the gutter of their house. On inquiry from his mother, he was again

threatened to go back and not to interfere. He went up-stairs and started

thinking about the incident. It was morning by that time. When he again

came down, he found the gunny bag missing; he presumed that the body

of the father must have been disposed off.

24 Further version of PW-1 being that on 08.07.2005, his uncle

Suresh had come to his house and inquired about his father from his

mother; PW-1 did not tell him anything. On 09.07.2005 in the morning

when his grandfather had come to their house along with some other

persons, PW-1 narrated the incident to him; he told him that his mother

along with her associates had killed his father. Police complaint was

lodged; his statement Ex.PW-1/A was recorded.

25 A lengthy cross-examination had been conducted of this witness

by the different counsel for the four accused persons. PW-1 denied the

suggestion that he has been tutored either by the Investigating Officer or

by any other person. He admitted that he had not gone to school on that

date. His brother and sister had also not gone to school. He explained

that he had not narrated this fact to his younger sibling as they were very

young. It has come in his cross-examination that the roofs of the houses

adjoining their house were touching each other; persons were sleeping

on the roofs. He had not narrated the incident to any neighbor. He had

not raised alarm as he was afraid. He had detailed the map of his house

revealing thereby that there were two rooms on the ground floor of

which one was used for dwelling purposes and the other room for cattle;

there was one room on the first floor. He admitted that his uncle Suresh

did not have a mobile phone and so also his father who was working as

a pollution checker at a petrol pump; PW-2 was residing in their house

since the last 1- ½ years.

26 The vehement submission of the learned counsel for the

appellants is that the testimony of this witness is liable to be discarded

as he is a tutored witness; he has vacillated on various scores; he is not

truthful and in fact he had not witnessed the incident as he was living

with his grandfather in the village at the relevant time. This last part of

the defence had come in the statement of accused Shiksha recorded

under Section 313 of the Cr.PC.

27 Relevant would it be to state that not a single suggestion has been

given to this witness that he had not witnessed the incident or he was not

in Delhi in the house at the relevant time. In fact repeated questions have

been put to him as to where he was studying in Delhi and what was the

name of his school to which he has categorically answered that he was

studying at Partibha Model School. This version is also consistent with

the status report (dated 23.05.2012) filed in this Court where State has

reported that PW-1 was studying in Partibha Model School. This was in

the year 2012 and Partibha Model School was the school where PW-1

was studying at the time when the incident had occurred and as such the

vehement argument of the learned counsel for the appellant Shiksha on

this score that the witness is inconsistent is an incorrect argument; it is

accordingly rejected.

28 The version of PW-1 inspires confidence. He is not only clear,

cogent and coherent but also appears to be a truthful witness. There

appears to be no conceivable reason as to why a child would depose

against his mother but for the fact that what he was deposing is the truth.

PW-1 had first heard his mother complaining about his father to her

associates at about 07:30 PM. At around 10:30-11:00 PM when he came

down on hearing a noise, he had witnessed the incident. Ashad was

known to him as he was earlier also visiting their house. He has ascribed

a specific role to both his mother and Ashad. His mother and Ashad had

caught hold of his father and were throttling him with a bed-sheet

whereas the other co-accused were holding him. The conduct of this

witness also appears to be normal and natural. He is a growing child; the

eldest in the family; he had two younger siblings but he did not have the

courage to disclose the incident to them as they were not only younger

in years because of the threats extended to him from his mother as also

from the other co-accused. Inspite of a sustained and lengthy cross-

examination of the witness on this score, he had stuck to his stand; his

focus did not shift.

29 Learned counsel for the appellant has vehemently argued that

even presuming PW-1 could not disclose this incident to his younger

brother and sister yet nothing prevented him from disclosing this

incident to PW-2 who was his cousin uncle and whom he had allegedly

met in the evening of 08.07.2013. The answer to this was probably that

PW-2 was only a cousin uncle; he was the first cousin of his father and

PW-1 may not have found him a trust-worthy confidant to disclose such

a big event to him; the trauma was burning in the mind of the child but it

was only when he met his grandfather on the following morning i.e. of

09.07.2005 that he found his trust-worthy confidant in him and narrated

the goring incident to him. The complaint was lodged immediately

thereafter.

30 Viewed in this scenario, the conduct of PW-1 is natural and

becoming; it is not abnormal as has been vehemently argued. This is

also so keeping in view the fact that PW-1 was probably the closest

blood relation of the parties; being the child of the parties. The mental

trauma of PW-1 and the tug of war between one parent and the other

was tormenting.

31 In Dattu Ramrao Vs. State of Maharashtra 1997 (3) Mah LJ 452,

454 the Supreme Court laid down the rule of prudence and desirability

of corroboration as under:-

"A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and

able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the Court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness he corroborated before a conviction can be allowed to stand but, however as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record."

32 On all counts, PW-1 is reliable.

33 Jaipal (PW-6) was the grandfather of PW-1. He was the father of

the victim. He was admittedly a resident of his native village Kandhla,

Distt. Muzaffarnagar, UP. He had been informed by his nephew Suresh

(PW-2) that his son was missing. This information was given to him on

telephone on 08.07.2005. PW-6 reached Delhi forthwith. The incident

was narrated to him by PW-1. Police complaint was lodged by PW-6.

Version of PW-6 establishes that when he had questioned Govind

(PW-1) about his father he initially looked perplexed and confused; on

repeated inquiry, PW-1 blurted out the incident. In the presence of

PW-6, the dead-body of his son Raj Kumar was recovered from an iron

trunk lying in the room from where a foul smell was emanating. The

iron trunk (Ex.P-3) was taken into possession vide memo Ex.PW-2/B.

34 In his cross-examination, PW-6 has initially stated that he had two

sons Raj Kumar (deceased) and Lokender; vehement submission of the

learned counsel for appellant Shiksha being that he had deliberately

concealed the identity of his third son for the reason that Babu Ram was

not on speaking terms with the deceased; this could be for the property

angle attached to this crime and because of that a deliberate attempt had

been made to conceal the identity of his third son.

35 This submission has to be noted only to be rejected. The third son

Babu Ram in the course of investigation had given his statement to the

police under Section 161 of the Cr.PC. This was in July, 2005; PW-6

had come into the witness box to depose in May, 2008. Identity of Babu

Ram was known to the investigating agency much before and as such

the question of concealment of his identity did not arise; it could only be

an error or a slip of the mind of the 58 years old witness. In a later part

of the testimony he has clearly stated that Babu Ram was his son.

36 In another part of his cross-examination, PW-6 has admitted that

the house where the deceased Raj Kumar was residing was in his name

although he has no document to substantiate this; the deceased had

executed documents of this house in his name 6-7 months prior to his

death; he admitted that he had sold this house within 2-3 months of the

date of the incident. Learned counsel for the appellants on this score

have propelled an argument that the whole idea was to grab the property

of the deceased and this is clear from the fact that PW-6 had admittedly

sold this house within 2-3 months from the date of the incident which

appears to be a highly suspicious conduct on his part as no person would

negotiate the sale of an immoveable property within such a short span of

such an unfortunate event having occurred.

37 This submission of the learned counsel for the appellants holds no

water. Testimony of PW-6 in fact establishes that the house where Raj

Kumar was residing was in his own name. PW-6 was the owner of his

house. The question of PW-6 and his other sons trying to usurp this

house could not and did not arise as this house was not owned by any

other person but PW-6 himself. The reason why he had sold this house

within such a short span of the death of his son was obviously for the

fact that the children of the deceased i.e. his two sons and a daughter

were residing with him after the incident; they had stopped residing in

Delhi from the date of the incident. This has come in the version of

PW-1 as also in the status report filed by the State (dated 23.05.2012).

This house had become a useless liability for PW-6 as admittedly PW-6

and his remaining family were all living in the village at Muzaffarnagar,

UP. This house was in occupation of his deceased son and he having

died, this house was now of no use to PW-6.

38 PW-2 Suresh was the cousin brother of the deceased who was

also residing in the house at Amar Colony since the last 1- ½ years

where the deceased and his family were living. PW-2 was in fact

working at the same petrol pump along with the deceased. He has on

oath deposed that on 07.07.2005 he had taken leave for two days i.e. up

to 09.07.2005 to go to his village Kandala; in the evening of 08.07.2005

he received a call from his employer that his cousin Raj Kumar had not

attended his work. On receipt of this information, he along with his

other cousin Lokender came to Delhi where on reaching the house of the

deceased they inquired from Shiksha about the whereabouts of Raj

Kumar; they were informed that he had had a quarrel with her and had

gone somewhere; PW-2 and Lokender started searching for Raj Kumar

but they could not find him. A telephone call was made to his uncle i.e.

Jaipal, the father of the deceased informing him about the missing of Raj

Kumar. PW-6 reached Delhi in the morning of 09.07.2005 where on

inquiry from Shiksha and thereafter from PW-1, the truth about the

incident was narrated by PW-1 to PW-6 pursuant to which the police

report had been lodged. The rest of the testimony of PW-6 is hearsay as

it only narrates what PW-1 had narrated to him.

39 This witness was also subjected to a lengthy cross-examination.

He has corroborated the version of PW-1 that he did not have a mobile

phone nor did his deceased cousin have a mobile. He has however

clearly and cogently deposed that PW-6 had a mobile phone which

number was known to him and this number had been given by him to

his employer. PW-2 has stated that he had given the mobile number of

PW-6 to his employer who had contacted him on this phone number.

That is how the employer of PW-2 was able to contact him on

08.07.2005 informing him of the absence of Raj Kumar on 07.07.2005.

The submission of the learned counsel for the appellants on this score

that there was no explanation as to how this information about missing

of Raj Kumar had been transmitted from Delhi to Muzzafarnagar has

been answered in this version.

40 PW-2 in another part of his cross-examination has stated that

there was a dispute between Raj Kumar and Shiksha about the affair of

Ashad and Shiksha. This has also been corroborated in the statement of

PW-6, the father-in-law of Shiksha who had stated that his son had told

him that his wife had a bad-character. PW-7 is also a relevant witness on

this count. He is Babu Ram, the brother of the deceased. He has deposed

that his bhabhi Shiksha was living in the village with them; their fields

and fields of Ashad were at a distance of 4 kilometers. Ashad and

Shiksha had developed intimacy when they used to work in the fields;

they had an illicit relationship and when the family learnt about it,

Shiksha was sent to Delhi to live with her husband. This witness has not

shifted in his cross-examination. Vehement submission of the learned

counsel for the appellants on this score is that PW-7 is a false witness

and his version is liable to be disbelieved for the reason that it has come

in the version of PW-2 that PW-7 was not on speaking terms with the

deceased and this was the reason why he has deposed in favour of the

prosecution; further that PW-6 has stated that there was a distance of 6-7

kilometers between the fields of Shiksha and Ashad and they could not

have developed any intimacy. Relevant would it be to state that this

witness has not been cross-examined on the score that Shiksha and

Ashad were not working in adjacent fields at the relevant time or that

Shiksha had not been sent to Delhi by the family on learning about their

illicit relationship; whether there was a distance of 4 kilometers or 6-7

kilometers between the two villages, in this background, would be of

little consequence. That apart merely because it has come in the version

of PW-2 that PW-7 was not on visiting terms with the deceased would

be no reason for PW-7 to depose against Shiksha; his enimical terms, if

any, were with the deceased and would not make out a case to falsely

implicate Shiksha.

41 PW-3 is another witness who has deposed on this count. He was

Ratan Lal, the erstwhile employer of Ashad and Amjad. He has

categorically deposed that telephone calls had been received by him

from one Shiksha to speak to Ashad; this was 5-6 years ago which

would be around the year 2002. It has thus come on record that Shiksha

and Ashad were known to each other as way back as 2002. In his cross-

examination he has given the details of his mobile number; he has

admitted that he did not furnish any document to show that Shiksha used

to call Ashad on his phone but this witness has not been cross-examined

on this score that he did not own this mobile number. PW-3 was an

independent witness. There was no reason for him to have made such a

statement but for the reason that it was a truthful statement.

42 Motive for the crime thus stood established in the aforenoted

versions of PW-7 and PW-3 and corroborated by PW-2 & PW-6. Motive

even otherwise may not be relevant as there is an eye-witness account of

PW-1 who had actually witnessed the crime. In these circumstances,

what was in the mind of the accused which had led them to commit the

crime may not be relevant.

43 The dead body of the victim was recovered from an iron trunk

lying in the ground floor of the house. This was pursuant to the

disclosure statement made by accused Shiksha. It was on 09.07.2005. A

foul smell was found emanating when the police party had reached the

spot which had led them to open this box. Submission of the learned

counsel for the appellants on this count is that if there was a foul smell

and death having occurred (as per the prosecution) somewhere around

the midnight of 07.07.2005 and being a summer month, the smell would

have started emanating 12 hours after the death and why PW-2 and

Lokender who had reached the house of the deceased in the evening of

08.07.2005 had not noted this foul smell has not been explained; thus

this is a clear case where the dead body had been planted upon the

appellant and this is also corroborated by her version recorded under

Section 313 of the Cr.PC wherein she has stated that no dead body was

recovered from her house in her presence; this defence of the appellant

cannot be ignored.

44 This submission of the learned counsel for the appellant is

explained and answered in the version of the witnesses. It has come in

the evidence of PW-1 that he used to sleep on the roof. PW-2 has

deposed that he was living in this house since the last 1- ½ years and he

used to reside on the roof. Also being the summer season, it is clear that

on 08.07.2005 when PW-2 and Lokender had come to Delhi they had

slept on the roof; it was for this reason that they did not note the smell

emanating from the iron trunk which was lying on the ground floor of

the house.

45 The fact that the dead-body was recovered is substantiated by the

testimony of the police personnel i.e. constable Upender Singh (PW-15)

as well. Further the statement of PW-1 is also corroborative of this fact

wherein he has stated that he had seen his mother Shiksha and Ashad

putting the body of his father in a gunny bag; this gunny bag was then

put near the gutter of the house; when he came back again, he found that

the gunny bag was missing; he had presumed that the body of his father

had been disposed of. This version of PW-1 had formed the basis of the

FIR and was recorded prior in time to the recovery of the dead body

which was contained in the gunny bag. Recovery in these circumstances

could not have been planted.

46 The fact that the dead body remained in the house up to

09.07.2005 and could not be disposed of was obviously for the reason

that the locality in which the parties were residing was a congested area;

the roofs of the houses were touching one another. As per PW-1 all

other persons after committing the crime had left the scene of crime in

the early morning hours of 08.07.2005; when he last saw his mother

with the body of his father, his maternal uncle Mukesh was alone

present . Obviously they needed some vehicle to transport the body; it

was for the reason that they probably decided to keep the dead-body in

the trunk to dispose it of at an opportune time. Little did they know this

whole mystery would be unraveled on that day itself.

47 Relevancy of not lifting the finger prints which even as per the

version of SI Suman Kumar (PW-10) (crime team in-charge) were not

found would even otherwise would not be material as there is an eye-

witness account.

48 The common intention of the two appellants to eliminate Raj

Kumar has been spelt out clearly and unequivocally by the prosecution.

The eye-witness account of the incident as witnessed by PW-1 cannot be

faulted with. The dead body was recovered at the instance of Shiksha at

their house. Motive for the crime i.e. the illicit relationship between the

co-appellants has also been spelt out in the version of the witnesses as

discussed supra. After committing the heinous offence, the co-appellants

made all efforts to destroy the evidence.

49 On no count, do the appellants deserve any sympathy. Prosecution

has been able to establish its case to the hilt. Both the appeals are

without any merit. Dismissed.

INDERMEET KAUR, J

KAILASH GAMBHIR, J NOVEMBER 20, 2013 A