Delhi High Court
Smt. Bimla Devi & Anr. vs State on 7 July, 2014
Author: P.K.Bhasin
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% CRL. A. 480/1998
+ Date of Decision: 7th July, 2014
# SMT. BIMLA Devi & ANR. ..... Appellants
Through: Mr. K.B.Andley, Sr. Adv. with
Mr. M.L. Yadav and Mr. Ajay
Chaudhary, Advs.
Versus
$ STATE ..... Respondent
Through: Mr. Sanjay Lao, APP
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
HON'BLE MR. JUSTICE V.P. VAISH
JUDGMENT
P.K.BHASIN, J:
The two appellants are mother and son and they have been
convicted for the offences punishable under Sections 302/201/34
IPC by the learned Additional Sessions Judge vide judgment dated
14th October, 1998 and have been sentenced to undergo
imprisonment for life and also to pay fine of Rs.5,000 /- each with a
default stipulation for their conviction for the offence of murder and
three years rigorous imprisonment and fine of Rs.2000/- with a
default stipulation of three months rigorous imprisonment under
Section 201/34 IPC vide order dated 23rd October, 1998. They were
tried for these offences along with one Deepak, who is the son of the
appellant Bimla Devi and brother of the other appellant Anil Kumar
and one Ram Gopal who happened to be the friend of Deepak.
2. Deepak and Ram Gopal were acquitted by the trial court and
the State did not challenge their acquittal.
3. The two accused-appellants and the two acquitted accused
were charge-sheeted by the police for their having murdered one
Farzana, daughter of PW-3 Mumtaz Ahmed and PW-12 Afroz Bano
and sister of PW-4 Zuber, on 9th May,1995. The prosecution case as
projected in the charge-sheet and the material submitted alongwith
it in the Court of the concerned Metropolitan Magistrate was that
the deceased Farzana had for some time worked as a teacher in the
school which was being run by the accused-appellant Anil Kumar by
the name of Sun Flower School in his residential property no. C-488,
Shivaji Marg, Chajju Pur, Shahdara, Delhi. After working there for
some months she left the job to pursue her studies in college. During
the period of her employment in the said school she became friendly
with accused Anil Kumar's brother Deepak (acquitted accused) and
they both got married also in February,1995 but their marriage was
not acceptable to the parents of the deceased Farzana because both
the families belonged to different religious communities. Though
the deceased had married the acquitted accused Deepak but she did
not want to stay with him in her matrimonial home since her elder
sister was still unmarried and so she wanted to start living with
Deepak as his wife only after the marriage of her elder sister. That
attitude of the deceased became a cause of their relations becoming
strained and that too to such an extent that the acquitted accused
Deepak and his mother and brother Anil Kumar decided to get rid of
Fazana by killing her. On 8th May,1995 acquitted accused Deepak
called up the landlord of the father of the deceased(PW-2 Kallu) and
told him to tell the deceased Farzana to come to meet him in the
school in connection with her job. She however did not go to the
school that day. Next day again Deepak called up PW-2 Kallu and
told him to ask Farzana to come to the school. That day, as per the
further prosecution case, Farzana went to meet Deepak around 4.15
p.m. at his residence-cum-school. Deepak brought her to a room
where the two accused-appellants were already present. Acquitted
accused Ram Gopal was also present there. The accused-appellants
then allegedly left Farzana in the company of the two acquitted
accused and went away telling Deepak to finish off the matter once
for all. Deepak allegedly then assaulted repeatedly Farzana her with
an iron moosli(pistle- normally used to crush spices) on her head and
other parts of her body due to which she died at the spot itself. After
assaulting the deceased Deepak and Ram Gopal went away from the
scene of crime leaving behind the dead body of the deceased there
as also the moosli. After sometime the accused-appellants came
back to the room where they had left the acquitted accused and the
deceased Farzana and they found the dead body of Farzana lying
there as also the weapon of offence i.e. Moosli. They kept the
weapon of offence in one almirah lying in another room of their
house and decided to remove the dead body of Farzana from there
and to take it out of their house. The dead body was dragged upto
the main entrance gate but they could not succeed in taking away
the dead body out of their house as public persons were passing
through the road outside their house. Before they could remove the
dead body to some place where nobody could see it PW-5 Ayub
noticed the dead body of Farzana lying near the entrance gate of the
house of the accused-appellants and he then informed the parents
of Farzana. They rushed to the spot and found the accused-
appellants standing near the dead body of Farzana with their blood
stained clothes. They informed the police.
4. On getting the information about the murder of Farzana the
matter was entrusted to PW-22 Inspector Niranjan Singh from SIU
who reached the spot. On the basis of the statement made by the
mother of the deceased(PW-13 Afroz Bano) he got registered the FIR
under Sections 302/201/34 IPC and after the registration of the FIR
the two accused-appellants were arrested on 10th May,1995 and the
acquitted accused Deepak was arrested subsequently on 12th
May,1995. Ram Gopal surrendered himself in Court on 29th
May,1995. After completion of the investigation the two accused-
appellants and the two acquitted accused were charge-sheeted by
the police and upon commitment of the case to Sessions Court they
were tried for the aforesaid offences and as noticed already, accused
Deepak and Ram Gopal were acquitted for lack of evidence against
them while accused Bimla Devi and Anil Kumar, the two appellants,
were convicted.
5. Accused Anil Kumar and his mother Bimla Devi then filed this
joint appeal challenging the trial Court's judgment convicting them
as also the order on sentence.
6. Learned counsel for the accused-appellants did not dispute the
fact nor challenged the finding of the learned trial Judge that the
deceased Farzana died homicidal death. That fact is even otherwise
fully established from the evidence of the autopsy surgeon Dr. N.K.
Aggarwal (PW-9) who had conducted post mortem examination on
the dead body of the deceased.
7. The question posed before us by the learned counsel for the
accused-appellants and which we have to answer is whether the
prosecution had been successful in establishing its case against the
two accused-appellants before the trial Court. Of course, according
to Mr. K.B. Andley, the learned senior counsel for the accused-
appellants the prosecution had failed miserably to establish its case
against the two appellants also. It was argued that the learned trial
Judge had used certain circumstances against the accused-
appellants without an iota of evidence having been brought on
record by the prosecution and had returned finding of guilt against
them merely on conjectures and surmises.
8. Mr. Sanjay Lao, learned additional public prosecutor, on the
other hand, obviously had to go with the trial Court's decision as far
as the two appellants are concerned since the State had chosen not
to challenge the acquittal of the other two accused and particularly
the husband of the deceased.
9. There being no eye witness to the incident of murder the
prosecution had sought to establish its case against the four charge-
sheeted accused persons relying upon certain circumstances. First
circumstance was that there was a motive for accused Deepak, his
mother and brother to get rid of Farzana. The motive attributed to
Deepak, husband of the deceased, was that even after marrying him
Farzana was not living with him as his wife because her elder sister
was still unmarried and she was telling Deepak that she would start
living with him as his wife only after the marriage of her unmarried
sister. That attitude of hers had annoyed Deepak. Second
circumstance against Deepak sought to be pressed into service was
that the deceased was last seen alive soon before her dead body
was found lying inside Sun Flower School and going inside the said
school with accused Deepak around 4.30 p.m. After the incident he
had disappeared and could be arrested only after some days of the
incident. None of these circumstances was held to be proved by the
learned trial Judge and so Deepak was acquitted. Similarly the trial
court did not find any incriminating circumstance against accused
Ram Gopal, who in any case had no motive to be a part of the
conspiracy to kill Farzana, and so he was also acquitted.
10. The trial Court having acquitted accused Deepak against whom
the prosecution had pressed into service strong circumstances of
'last seen entering the Sun Flower School around 4.30 p.m. with
Farzana' and soon thereafter Farzana being found murdered inside
his house-cum-school and the motive to kill her we have examined
the prosecution evidence against the present appellants very
minutely and carefully to find out as to whether the conviction of
the two appellants was justified or not. Against the appellants, the
prosecution case was that since they did not approve of the
marriage of acquitted accused Deepak with a Muslim girl, deceased
Farzana, they had the motive to kill her. On the other hand, the case
sought to be projected by the accused persons was that this was a
case of honour killing of the deceased by her parents' side because
they did not tolerate their daughter getting married in a Hindu
family.
11. However, we find from the trial Court's record that not even a
single witness examined by the prosecution had deposed that the
accused-appellants had ever proclaimed that they would not permit
the deceased Farzana to live with them as wife of the acquitted
accused Deepak. Mr. Sanjay Lao, learned additional public
prosecutor also could not point out to any such evidence. The
learned trial Judge instead of examining whether the prosecution
had led any evidence to show that the accused-appellants had a
motive to kill the deceased dealt with the argument of the counsel
for the accused that in this case it was the complainant side who had
the motive to kill the deceased as she was a Muslim girl and so had
no place in a Hindu family and observed that it could not be said that
only the complainant side could have the motive to kill the
deceased. Not only that the learned trial Judge also observed, and
which observation in our view was not at all required to be made in
the absence of any evidence about the motive aspect of the
prosecution case, that since a Muslim girl had got married to a Hindu
boy against the wishes of the parents of the acquitted accused
Deepak as well as of the deceased Farzana both sides could have had
the motive to kill the deceased. Now, if according to the trial Judge
even the complainant side also could be said to be having the motive
to kill the deceased and which observation appears to have been
made by the trial Judge keeping in mind the evidence of DW-3 who
was examined by the accused persons to show that he had seen the
deceased running towards the Sun Flower School in injured
condition and some persons chasing her. Though evidence of DW-3
was not accepted by the trial Court but in our view benefit of the
conclusion arrived at by the learned trial judge that parents from
both sides could have the motive to kill the deceased deserved to be
given to the accused persons. So, motive part of the prosecution
case, which is definitely a vital circumstance in a case based on
circumstantial evidence, remained unproved even against the
present two accused-appellants.
12. The next circumstance pressed into service by the prosecution
was that on 8th May,1995 i.e. a day prior to the incident of murder
the acquitted accused Deepak had called up PW-2 Kallu, the landlord
of the house where the deceased was residing with her parents, and
had told Kallu to tell the deceased that she should come to the
school but she did not go to meet him. As per the prosecution case
the deceased did not go to the school that day. Again on 9th
May,1995 Deepak had called up PW-2 Kallu and again told him to tell
the deceased to come to the school. That day the deceased went to
meet Deepak and was murdered. However, before the trial Court
PW-2 changed his statement and stated that the two calls had been
received from accused Anil Kumar and he had conveyed accordingly
to the mother of the deceased(PW-13 Afroz Bano). He was cross-
examined by the prosecutor since as per the prosecution case it was
the acquitted accused Deepak who had called up PW-2 Kallu twice
and had asked him to convey to the deceased that she should see
him in the school and it was put to him in cross-examination by the
prosecutor that the acquitted accused Deepak had, in fact, called
him up and not Anil Kumar. Kallu had denied that suggestion. The
learned trial Judge accordingly did not use this circumstance against
accused Deepak but while acquitting him used the same
circumstance of Kallu receiving calls for telling the deceased that she
should come to the school against accused Anil Kumar by observing
that whether telephone call was made by accused Deepak or Anil
Kumar would not make any difference and the fact that telephone
calls were received by Kallu for asking the deceased to come to the
school and she did go to the school on 9th May, 1995 was an
incriminating circumstance against accused Anil Kumar. In our view,
if this circumstance was not proved against accused Deepak the
same could not be used against accused Anil by the trial Judge by
making a new case for the prosecution that it did not matter
whether the telephone calls were made by accused Deepak or his
brother Anil Kumar. In fact, even before this Court the learned
prosecutor Mr.Sanjay Lao while defending the impugned judgment
on other findings of the trial Judge against the present appellants
maintained that as per the prosecution case telephone calls were
made to PW-2 Kallu by the acquitted accused Deepak and not by
accused-appellant Anil Kumar.
13. Other circumstance used against the appellants by the trial
Court was that both of them were present near the dead body of
the deceased in a perplexed state and with blood on their clothes
when the parents and brother of the deceased(PWs 3, 4 & 13)
reached Sun Flower School on getting information her murder from
PW-5 Ayub(who however did not support the prosecution and
denied having seen the dead body of the deceased at the entrance
of the school and having informed her parents that she had been
murdered). Now, as far as this circumstance is concerned, we are of
the view that the statements of the parents and brother of the
deceased about the presence of the two accused-appellants with
blood on their clothes near the dead body of the deceased at the
entrance of their school cannot be said to be truthful. As far as the
presence of the accused-appellants near the dead body of the
deceased is concerned, we are of the view that this circumstance
cannot be said to be an incriminating circumstance. A dead body was
lying at the entrance gate of their school-cum-residence and so their
presence there and that too in a perplexed condition was quite
natural. If they had also run away from the spot, like the acquitted
accused Deepak had done and who despite that had been acquitted,
it might have been an incriminating circumstance against them. In
our view, their not running away from the spot is not at all
inconsistent with their innocence. In a recent judgment dated
14.08.2013 rendered by a Division Bench of this Court in "Raj Kumar
@ Raju vs The State",Crl.Appeal No.876/2010, it has been held that
the conduct of the accused in not fleeing away from the scene of
crime throws doubt about the prosecution case.
14. As far as the prosecution case stated by the parents and
brother of the deceased that the clothes of the two accused-
appellants were blood stained when they were found standing near
the dead body of the deceased is concerned, we are of the view that
the evidence of the parents and brother of the deceased also
appears to be doubtful. According to their statements before the
trial Court when they had reached Sun Flower School both the
accused-appellants were present there near the dead body with
blood on their clothes and the police also reached soon thereafter.
Now, if actually the clothes of the accused-appellants were blood
stained the police officers who were DCP and SHO of the concerned
police station and who, as per the statement of PW-22 Inspector
Niranjan Singh from Special Investigation Unit(SIU) to whom the
investigation was entrusted because local police could not have
managed the law and order situation because of the surcharged
atmosphere between the two families of different religions and
which has been observed to be so by the trial Judge in the impugned
judgment, had arrived at the spot even before his arrival there,
would have certainly noticed the blood on the clothes of the two
accused-appellants. That is, however, not the prosecution case.
Those senior officers, in fact, had not been examined as prosecution
witnesses during the trial and there being no explanation for their
non-examination, prosecution case in this regard gets doubtful. PW-
22 also did not claim that the clothes of the accused-appellants were
blood stained when he reached the scene of crime. In fact, he
categorically stated in cross-examination that the clothes of the
accused-appellants were not blood stained when he reached the
spot. And he would have also arrested the accused-appellants there
and then if the clothes of the accused-appellants were blood
stained. He did not do that and the FIR was registered around 8.30
p.m. on the statement of mother of the deceased, Ex.PW-13/A, and
in that statement also it was not mentioned by PW-13 that the
clothes of the accused-appellants were blood stained when they
were found standing near the dead body of the deceased at the
entrance gate of Sun Flower School. The appellants were arrested on
10th May,1995. So, this circumstance remained unestablished.
15. As far as accused Anil is concerned, another circumstance
accepted by the trial Court against him was that he had taken a false
defence that at the time when the parents and brother of the
deceased claimed to have seen him with his mother present near
the dead body of the deceased he was actually not present at the
spot and was actually present in the houses of DWs 1 and 2 for
giving tuition to their children. Though DWs 1 and 2 had supported
his said defence plea but the learned trial Judge did not accept their
evidence as it was not put to the parents and brother of the
deceased in their cross-examination and was raised for the first time
only at the time of recording of the statement under Section 313
Cr.P.C. and so the said defence plea was considered to be an
afterthought. There is no doubt that prior to the stage of recording
of his statement under Section 313 Cr.P.C. accused Anil had not
taken this plea and so the same could be said to be an afterthought
but still the said circumstance could not benefit the prosecution as
we have already observed that presence of the accused-appellants
at the spot cannot be considered to be an incriminating
circumstance against them.
16. No other circumstance was highlighted before us by the
learned additional public prosecutor. We are, thus, of the firm view
that no chain of incriminating circumstances, much less of strong
ones, can be said to have been established by the prosecution
against accused-appellant Anil.
17. Against accused-appellant Bimla Devi the prosecution had also
pressed into service before the trial Court the circumstance of
recovery of the one blood stained iron moosli (pestle), Ex.PA, from
one almirah in her house pursuant to her disclosure statement made
in police custody after her arrest. In this regard the learned
additional public prosecutor Mr. Sanjay Lao had submitted that even
though the investigating officer had not sought the opinion of the
autopsy surgeon as to whether the injuries found on the body of the
deceased at the time of post-mortem examination could have been
caused with the said moosli or not but still the recovered moosli
could be considered to be the weapon of offence used in the
commission of the crime by the assailant because blood of the
deceased('A' Group) was detected on it when it was examined at the
Forensic Science Laboratory(FSL), Malviya Nagar, New Delhi. He
referred to the FSL report Ex. 22/C to substantiate this submission.
The submission of Mr. K.B. Andley, learned senior counsel for the
appellants was that mere recovery of the blood stained iron moosli
at the instance of accused Bimla Devi cannot be considered to be
sufficient to hold her guilty of the offence of murder. In support of
this argument Mr.Andley had cited two judgments of the Hon'ble
Supreme Court reported as AIR 1999 Supreme Court 2091, "Babuda
vs State of Rajasthan" . These judgments of the Apex Court do help
the accused Bimla Devi as it has been held by the Apex Court that
the mere recovery of the weapon of offence at the instance of an
accused is not sufficient to convict the accused of the offence of
murder. In the Division Bench judgment of this Court in Raj Kumar's
case(supra) also it was also held that if all other circumstances relied
upon by the prosecution against an accused are not established then
mere recovery of weapon of offence at the instance of the accused is
of no use. Similar view was also taken by the Madras High Court in a
judgment dated 17/12/2007 in Crl. Appeal No.231/2005, "Vadivel vs
The State"(MANU/TN/9843/2007). In that case besides the
circumstance of recovery of the weapon of offence motive was also
there for the accused to murder the victim of that case still it was
held that the chain of circumstances could not be said to be
complete justifying conviction of the accused for the offence of
murder. Here, even motive is not proved. Mr. Andley had also cited
one more judgment of the Hon'ble Supreme Court in the case of
"Majendran Langeswaran vs State(NCT of Delhi) & Anr.", (2013) 7
Supreme Court Cases 192 wherein despite the fact on the recovered
knife at the instance of the accused blood of the deceased was
detected no reliance was placed on that piece of evidence since the
knife was not shown to the autopsy surgeon to seek his opinion as to
whether the injuries on the body of the deceased were possible with
the recovered knife. So, we fully agree with the submission of Mr.
Andley that the recovery of iron moosli Ex.PA does not incriminate
accused Bimla Devi for the offence of murder.
18. The conviction of the two appellants under Section 201 IPC also
cannot be sustained since it was the prosecution case that when the
police reached the scene of crime the floor of the house appeared to
have been washed to remove blood from there. As per the
prosecution case the premises where the dead body of the deceased
was found was residence of the appellants as well as of the
acquitted accused Deepak and a school was being run there where
the deceased had worked for sometime. If this circumstance was not
found sufficient against accused Deepak the same could not be used
against the present two accused-appellants for convicting them
under Section 201/34 IPC.
19. No other incriminating circumstance having been brought to
our notice from the side of the prosecution during the course of
hearing we are of the view that the prosecution cannot be said to
have been successful in establishing a chain of circumstances leading
to the only conclusion that the present two accused-appellants were
the killers of the deceased Farzana. So, this appeal filed by them
deserves to be allowed.
20. This appeal is accordingly allowed and the impugned judgment
of conviction of the appellants and the order on sentence passed by
the learned Additional Sessions Judge are set aside and
consequently the appellants stand acquitted of the charges of which
they have been convicted. Their sentences of imprisonment were
suspended during the pendency of this appeal and now that they
have been acquitted their personal bonds stand cancelled and
sureties discharged.
P.K.BHASIN, J
V.P.VAISH, J
JULY 7, 2014
