Delhi High Court
Gautam Goswami vs State on 18 July, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: July 18, 2014
+ CRL.A. 428/1999
GAUTAM GOSWAMI ..... Appellant
Through Mr. Anshuman Sinha & Mr. Ajay
Vikram Singh, Advocates
versus
STATE ..... Respondent
Through Ms. Richa Kapoor, APP for the
State with Insp. Nipun Kumar, PS
Shakar Pur, Delhi
+ CRL.A. 602/1999
SMT. SANTOSH ..... Appellant
Through Mr. Anshuman Sinha & Mr. Ajay
Vikram Singh, Advocates
Versus
STATE (N.C.T. OF DELHI) ..... Respondent
Through Ms. Richa Kapoor, APP for the
State with Insp. Nipun Kumar, PS
Shakar Pur, Delhi
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE SUNITA GUPTA
JUDGMENT
KAILASH GAMBHIR, J
1. The institution of marriage can truly be called one of the most
dynamic social institutions. It has been touted as an important stage in
one's life and has been accorded a lot of importance historically. But
with the advent of time, change in social values has brought a great
impact on such a pious institution and the ruthless reality in today's times
is that maximum number of relationships is a failure. The reasons can be
economic, social, behavioural difference, sexual incompatibility etc or
otherwise some marriages suffer in silence but committing a crime and
harming anyone to achieve one's motive of being with someone else is
not a solution to legitimise an illicit relation. An illicit relation of one
partner induces a sense of betrayal of trust and psychological distress in
the other partner which may lead to aggressive consequences. No matter
how tardy and cumbersome are the laws, but the ultimate recourse or
solution for an unsuited relationship lies through legal means rather than
putting an end to one's life to achieve some personal fulfilment. Such
was the fate of Jaipal in the case at hand, who was killed by his wife and
her boyfriend to gain their selfish means in order to spend their life
together.
2. Challenge in these two appeals is to the impugned judgment dated
24.05.1999 and order on sentence dated 27.05.1999 passed by the learned
Additional Sessions Judge, Shahdara, Delhi whereby both the appellants
have been convicted for the offence punishable under Section 302 read
with section 34 of the Indian Penal Code, 1860 (hereinafter referred to as
'IPC') and sentenced them to undergo imprisonment for life alongwith a
fine of Rs.5000/- each and in default of payment of fine to further
undergo rigorous imprisonment for a period of one year each.
3. The germane case of the prosecution in brief is summarized as
under:
"On 15.09.1996, at about 6:05 a.m., Shiv Charan Singh
informed the police of PS Shakarpur on telephone that his
son, Jai Pal has committed suicide. On this information DD
6A was recorded and a copy of it was assigned to HC Puran
Chand for an immediate action in the matter. HC Puran
Chand along with constable Bhagwan Sahai reached the
spot. Insp. Tika Ram, SHO, PS Shakarpur along with Ct
Kuldeep Singh also reached there. They found the dead
body of Jaipal Singh lying in the gallery in front of the
kitchen of house no. S-352C, School Block, Shakarpur,
Delhi. There was a ligature mark on the neck of the dead
body and a small abrasion over the right ankle joint. On
questioning the brother and father of the deceased, they
raised an accusing finger on the wife of the deceased, while
Smt. Santosh, the wife of the deceased asserted that Jaipal
Singh committed suicide owing to a property dispute. HC
Puran Chand conducted the inquest proceedings and sent
the body for Post Mortem examination. Doctor K. Goyal
conducted the autopsy and opined that death was caused
due to strangulation. On receipt of this report, rukka was
recorded on 19.09.1996 and a case was got registered for
an offence under section 302 of the Indian Penal Code.
Investigation was taken up by Insp. Raj Kumar, additional
SHO, PS Shakarpur. "
4. To prove its case, the prosecution examined as many as 16
witnesses. After the evidence was led by the prosecution, both the
accused persons were examined under Section 313 Cr.P.C. Both of them
denied the case of the prosecution and they pleaded their innocence and
false implication. The accused Smt. Santosh in her statement took a
defence that there was a property dispute between her husband and Shiv
Charan (father of the deceased), and also the other brothers of the
deceased. Prior to the date of incident, the deceased even had an
argument with his father over the property. The co-accused Gautam
Goswami took a defence that he was a tenant under Shiv Charan before
the incident and at the time of taking the possession of the tenanted
premises there was an exchange of argument between them. He also
alleged that during the exchange of scorching argument, Shiv Charan
alleged that the accused Gautam was having an illicit relationship with
Smt. Santosh. He further stated that due to enmity he was falsely
implicated in the case and was lifted by the police from his office. In
defence the accused persons got examined two witnesses.
5. Addressing arguments on behalf of the appellants, Mr. Anshuman
Sinha, Advocate vehemently contended that the appellants had been
falsely implicated in this case by the prosecution on absolutely baseless
and tenuous allegations of her having an illicit relationship with co-
accused Gautam Goswami. Counsel also submitted that the case of the
prosecution is based on circumstantial evidence and the prosecution has
miserably failed to prove the complete chain of incriminating evidence to
establish the guilt of the appellants in commission of the said crime.
Counsel also submitted that none of the incriminating circumstances
which were vital to the case of the prosecution were put to the accused at
the time of recording of her statement under Section 313 Cr.P.C. These
questions as per the counsel for the appellants which were not put to the
accused inter-alia were regarding the purchase of Alprax by the accused
persons and then to administer the same to the deceased; fact regarding
manual strangulation of the deceased by the accused persons and thirdly,
about the finger nail mark found on the neck of the deceased, was that of
the accused persons.
6. Counsel also submitted that the prosecution has also failed to prove
the alleged illicit relationship between the appellant with the other co-
accused Gautam Goswami. Counsel also submitted that the prosecution
sought to prove the alleged illicit relationship of the appellant with the
other co-accused based on the hearsay evidence of PW3, PW5, PW9 and
PW11 and as per the settled legal position no weightage or credence can
be given to the hearsay evidence. Counsel also invited our attention to
the deposition of PW5 who in his cross-examination stated that his
brother had told him about the illicit relationship of Santosh and Gautam
Goswami about 5-6 months back prior to the incident. He also deposed
that he had not seen Gautam Goswami and Santosh in any such manner
which could indicate an illicit relationship between them. Counsel had
also drawn attention of the court to the deposition of PW9 who stated
that he had no personal knowledge whether the accused Santosh was
having any relationship with the tenant or that if it was a rumour.
Similarly in the deposition of PW11, it was stated that Jai Pal had told
him about the illicit relationship between Gautam Goswami and Santosh
and it was known to all the persons of the 'Mohalla' and that is how he
came to know about it. Counsel also argued that the prosecution also
failed to prove any motive on the part of the appellant to commit the
murder of her own husband. Counsel also submitted that no evidence has
been produced by the prosecution to prove that the appellant and her
husband were having a strained relationship.
7. Counsel thus submitted that in the absence of strong motive
attributed to the appellant, she could not have taken steps of annihilating
her own husband. Counsel further argued that the prosecution also failed
to prove that the appellant had purchased Alprax medicine from a chemist
shop as the owner of the chemist shop was never produced in the witness
box. Counsel thus submitted that the best evidence was withheld by the
prosecution.
8. Learned counsel for the appellant further argued that there is
complete inconsistency in the statement given by PW-6 Munna Singh
under Section 161 Cr. P.C. and his court deposition. Pointing out the
contradiction, learned counsel for the appellant pointed out that Munna in
his statement recorded under Section 161 Cr. P.C. stated that he gave
Alprax tablets himself to the deceased while in his court deposition the
stand taken by him was that he gave the medicine to the owner and then
the owner gave it to the deceased.
9. Learned counsel for the appellant also submitted that during his
cross-examination, PW-6 Munna failed to disclose the date when the said
medicine was purchased by the accused persons. The contention raised by
learned counsel for the appellant was that this purchase of medicine from
the chemist shop is the only evidence which can connect with both the
accused persons and since the prosecution has failed to convincingly
prove this fact that the said Alprax tablets were purchased by these
accused persons, therefore the appellants are entitled to claim benefit of
doubt and deserve to be acquitted.
10. Based on the above arguments, learned counsel for the appellant -
Santosh submitted that the case of the prosecution is an extremely weak
case but yet the learned trial court has convicted both of them. Learned
counsel for the appellant submitted that the prosecution has also failed to
prove the complete chain of circumstantial evidence which could prove
the guilt of these accused persons rather such circumstances are
compatible to prove the innocence of these accused persons. Learned
counsel for the appellant thus strongly urged for the acquittal of the
accused persons and for setting aside the impugned judgment and order
on sentence passed by the learned Additional Sessions Judge.
11. Addressing arguments on behalf of the appellant - Gautam
Goswami, counsel for the appellant contended that in the present case
there was a delay of four days in lodging of the FIR and during the said
period, there was enough time for the police to fabricate the evidence and
therefore, there is every reason to suspect the prosecution case. Counsel
for the appellant further submitted that DD No.6A was lodged on
15.9.1996 at 6.05 AM but the said DD was endorsed by the SHO on 19th
September 1996 for the registration of the FIR under Section 302 of IPC
and this delay of four days remains unexplained by the prosecution and in
the absence of any satisfactory explanation this delay in registration of
FIR should be taken as fatal to the case of the prosecution. Counsel for
the appellant further argued that the accused was a married person and
was leading a happy married life with his family comprising of his wife
and prosecution has not produced any evidence to show that there was
any kind of acrimony in their relationship due to which he had an illicit
relationship with the co-accused Santosh, wife of the deceased. Counsel
for the appellant also took a stand that the story of illicit relationship
between the appellant and the co-accused has been created by the
prosecution and no convincing or clinching evidence has been produced
by the prosecution to prove the said illicit relationship. Counsel for the
appellant also argued that there was a clear cut case of suicide committed
by the deceased due to property dispute with his father and brothers, but
the prosecution at the instance of PW-3 Shiv Charan has given it the color
of a murder case. Counsel for the appellant also submitted that the
appellant was a tenant under Shiv Charan, father of the deceased and
since he was not vacating the tenanted premises therefore, due to his
inimical relationship with Shiv Charan, he was falsely implicated in this
case. Counsel for the appellant also argued that the wire was found at the
spot of the crime and no investigation was conducted as to who brought
the wire and how was it found at the spot of crime. Counsel for the
appellant also submitted that in the entire judgment given by the ld. Trial
court also, there is no whiff of presence of wire at the spot of the crime.
Counsel for the appellant also submitted that no TIP was conducted by
the police to identify the appellant - Gautam by the sales person - Munna
PW-6.
12. Based on the above submissions, counsel for the appellant -
Gautam has pleaded for acquittal and setting aside the impugned
judgment and order on sentence passed by the learned Trial Court.
13. Per contra, Ms. Richa Kapoor, learned Additional Public
Prosecutor for the State vehemently argued that the case of the
prosecution is based on circumstantial evidence and the prosecution has
succeeded in bringing the entire chain of circumstances, which unerringly
points out the guilt of these accused persons in the commission of the said
crime, totally incompatible with the plea of innocence raised by the
appellants. Counsel for the state further argued that as per the post
mortem report which was duly proved on record by PW-10 - Dr. K. Goel
cause of death of the deceased was opined as a result of strangulation and
therefore, possibility of the deceased to have committed suicide is totally
ruled out. Learned APP further submitted that no suggestion was given to
PW-10 by the defence that it was a case of suicide and not of culpable
homicide. Learned APP also argued that there were injury marks on the
neck and ankle of the deceased and the presence of these injuries also
suggests the involvement of both the appellants in committing the said
murder.
14. Learned Additional Public Prosecutor further argued that the
prosecution has convincingly proved that both these Appellants had
purchased two tablets of Alprax from a Chemist shop located in the same
vicinity so that they could implement their nefarious design of killing the
deceased, while he was in deep slumber after taking the dose of Alprax.
Learned Additional Public Prosecutor also submitted that presence of
Alprax was found in the stomach/spleen/kidney of the deceased on
chemical examination of his viscera as per the CFSL report proved on
record as Ex.PW 15/D and this clinching evidence fully establishes the
fact that these two Appellants had purchased Alprax from the chemist
shop and then these tablets were administered to the deceased by the
appellant - Santosh and thereafter, both the appellants had committed the
said crime of murder.
15. Learned Additional Public Prosecutor also argued that the illicit
relationship between these two accused persons finds support from the
evidence of PW-3, PW-5 and PW-11. Learned APP also submitted that
the presence of the appellant Gautam in the same house at least cannot be
disputed as he was also a tenant residing in the same premises, where the
deceased was also residing alongwith his family in the other portion of
the property. Learned APP also submitted that the prosecution also
proved on record that the accused used to come to meet Santosh even
during the absence of her husband and it was accused - Santosh who was
instrumental in bringing Gautam back to the tenanted premises when
once he left the said premises. Learned APP also argued that there was
not even an iota of evidence brought on record by the defence that there
was any kind of dispute between the father and the deceased over some
property issue and therefore, there is not even a nudge of truth in defence
of the accused persons.
16. Learned Additional Public Prosecutor further submitted that the
appellant - Gautam had also absconded after committing the crime as he
was arrested on 19.09.1996 from his work place. Learned Additional
Public Prosecutor also argued that there can be no reason to disbelieve the
evidence of an independent witness - Munna PW-6 who was a salesman
in a chemist shop and who in his deposition clearly named these two
accused persons having purchased Alprax tablets from the shop before
the date of commission of the crime.
17. Learned Additional Public Prosecutor also argued that there is no
delay in the registration of the FIR as the police was galloping in the dark
and it is only after the post mortem of the deceased the cause of death
was opined 'due to strangulation', the police found the case to be of
murder and not of suicide as earlier reported by Shiv Charan, father of the
deceased. Learned APP thus submitted that there is no delay in the
registration of the FIR as argued by counsel for the appellants.
18. Based on the aforesaid submissions, learned Additional Public
Prosecutor urged that the impugned judgment and order on sentence
passed by the learned Additional Sessions Judge does not suffer from any
illegality or perversity, therefore the same may be upheld. In support of
her contentions, learned Additional Public Prosecutor had placed reliance
on the judgment of the Apex Court in Sarojini v. State of Madhya
Pradesh reported in 1993 Supp. 4 SCC 632.
19. We have heard the learned counsel for both the parties at a
considerable length and given our thoughtful consideration to the
arguments advanced by them. We have also gone through the records of
the learned trial court.
20. The victim in this case - Jaipal was a young bloke of 28 years of
age and unfortunately the husband of the appellant - Santosh with whom
he had married in the year 1989. Out of this wedlock, they had a
daughter of four years at the time of this incident. The family was
residing on the ground floor of premises no. S-352C, School Block,
Shakar Pur, Delhi. On the first floor of the same property, appellant -
Gautam Goswami was residing in a one room accommodation as a tenant
under Shiv Charan, father of the victim - Jaipal and father in law of
appellant - Santosh. The appellant - Gautam Goswami was also a
married person and as per the case of the prosecution, his wife -
Saraswati had been mostly residing at her parental house. Appellants -
Gautam Goswami and Santosh got attracted towards each other and had
fallen in an illicit relationship, unmindfully betraying the sanctity of the
relationship with their respective spouses. Victim - Jaipal had suspicion
over the relationship of his wife, Santosh with the appellant Gautam and
then their devious plan to eliminate Jaipal so as to continue with their
relationship freely and without any kind of fear. To give a final shape to
their sinister plan, both of them had purchased two tablets of Alprax
from a nearby medical shop and the same was administered by Santosh to
the victim on the intervening night of 14/15 September 1996 before he
went to sleep. After he was found asleep, he was strangulated by both of
the appellants with the help of a saree and when both of them found him
dead, they hanged him with an iron girder so as to give an impression that
the victim had committed suicide. As per the plan of the said accused
persons Santosh reached at the house of his father-in-law at 6 a.m.
wailing in cry by saying that 'main Mar gayi, main lut gayi'. Shiv Charan
immediately reached the residence of his son, where he found Jaipal
hanging on the roof with a dhoti. Other people also gathered and he
alongwith PW-9 Mittar Singh brought the dead body down after cutting
the saree with the help of a knife. Thereafter, the matter was reported by
Shiv Charan to the police and the investigation by the police commenced.
21. The case of the prosecution is based on circumstantial evidence.
The principles to prove the guilt of the accused based on circumstantial
evidence are well settled in catena of judgments passed by the Hon'ble
Apex Court and various High Courts. Certain cardinal principles for
conviction on the basis of circumstantial evidence are laid down
eloquently by the Hon'ble Apex Court in Sharad Birdhichand Sarda v.
State of Maharashtra, 1984(4) SCC 116, wherein it has been held as
under:-
"152. Before discussing the cases relied upon by the High
Court we would like to cite a few decisions on the nature
and essential proof required in a criminal case which rests
on circumstantial evidence alone. The most fundamental
and basic decision of this Court is Hanumant Govind
Nargundkar v. State of M.P., AIR 1952 SC 343. This case
has been uniformly followed and applied by this Court in a
large number of later decisions up-to-date, for instance, the
cases of Tufailv. State of U.P.,(1969) 3 SCC 198 and Ram
Gopal v. State of Maharashtra, (1972) 4 SCC 625. It
may be useful to extract what Mahajan, J. has laid down in
Hanumant case(supra):
"10....It is well to remember that in cases where the
evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to
be drawn should in the first instance be fully
established, and all the facts so established should
be consistent only with the hypothesis of the guilt of
the accused. Again, the circumstances should be of a
conclusive nature and tendency and they should be
such as to exclude every hypothesis but the one
proposed to be proved. In other words, there must
be a chain of evidence so far complete as not to
leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it
must be such as to show that within all human
probability the act must have been done by the
accused."
153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against
an accused can be said to be fully established.
(1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established.
(2) the facts so established should be consistent only
with the hypothesis of guilt of the accused, that is to
say, they should not be explainable on any other
hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature
and tendency.
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human probability
the act must have been done by the accused.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on
circumstantial evidence."
22. Taking into consideration the aforesaid principles, the learned trial
court laid the following chain of circumstantial evidence which clearly
and convincingly establishes the involvement of these two appellants in
committing the murder of Jaipal by manual strangulation and thereafter
hanged his dead body with the girder by tying a sari around his neck, so
as to give it a colour of suicide. These circumstances can be outlined as
under:-
i. The presence of accused Gautam Goswami in his
tenanted house as he was last seen by PW-5 at
8:30/9.p.m. on 14.09.1996
ii. The presence of accused Santosh with husband
Jaipal (deceased) in the house besides the presence
of other accused on the intervening night of
14/15.09.1996
iii. Accused Santosh brought Gautam back into the
tenanted premises after he was evicted 4-5 months
back from his tenanted premises.
iv. Illicit relationship between Santosh and Gautam
Goswami
v. Both the accused persons had purchased Alprax
tablets from a nearby medical store to be
administered by Santosh to her husband before
carrying out the plan of his murder.
vi. The presence of Alprazolam (Alprax) in the stomach,
spleen and kidney of the deceased as per the CFSL
report Ex. PW-15/D.
vii. Post mortem report proved on record as Ex. PW-
10/A in the testimony of Autopsy Surgeon, Dr. A.K.
Goel who in his report and testimony clearly opined
the death of Jaipal by manual strangulation.
viii. The time of death of Jaipal relates back to 4.00 a.m.
on 15.09.1996 as per the post mortem report
wherein the time since death was stated about 32
hours from the time of autopsy, i.e., at 12.00 p.m.
on 16.09.1996.
ix. Accused Santosh went to call her father-in-law
residing just nearby at about 6.00 a.m. on
16.09.1996. Thus leaving approximate gap of 2
hours from the time of death of Jaipal as opined in
the post mortem report and Santosh reached to her
father-in-law Shiv Charan.
x. The margin of gap between the time of death and
the information given by Santosh to her father-in-
law was sufficient enough to hang the dead body of
deceased Jaipal with an iron girder fixed in the
ceiling of the room.
All the aforesaid chain of circumstances have been
proved by the prosecution with the help of cogent
and clinching evidence and all the circumstances are
consistent only with one hypothesis, i.e., the guilt of
these accused persons totally incompatible with their
plea of innocence.
23. In the aforesaid background of facts in the present case and the
legal principles enunciated above, let us now deal with the contentions
raised by the counsel for the appellants to assail the findings of the
learned trial court, in order to find whether there is any merit in any of his
contention or the same have been raised as a shot in the dark and just for
the heck of it.
24. Dealing with the first contention raised by the counsel for the
appellants that allegations of alleged illicit relationship between these
accused persons were absolutely baseless and unfounded as the same are
based on hearsay evidence of the prosecution witnesses. There can be no
denial of the fact that it is very difficult to prove with the help of any
cogent and direct evidence the illicit or extra marital relationship between
two persons and in most of the cases with the help of circumstantial
evidence, the inference can be drawn about such illicit relationship. PW-3
Shiv Charan, father-in-law of accused Santosh, in his deposition had
clearly stated that Gautam Goswami used to visit the portion of his son in
his absence in order to meet Santosh. He also deposed that both of them
had developed an illicit relationship and once Gautam Goswami left the
tenanted premises but was brought back by Santosh. He also deposed that
his son was apprehending danger to his life and he had apprised this kind
of trepidation to the brother of Santosh. The deposition of PW-3 Shiv
Charan on this aspect remained unrebutted and unchallenged, therefore,
there is no reason to disbelieve the testimony of PW-3 Shiv Charan who
was just residing very near to the house of his son. Even in answer to the
question asked by the counsel of Gautam Goswami as to who informed
him about the illicit relationship of the wife of his son with Gautam
Goswami, he categorically replied that his elder daughter-in-law had told
him and such relations also came to light otherwise. This answer of PW-3
Shiv Charan clearly stipulates that he had the knowledge of such kind of
relationship between his daughter-in-law Santosh and Gautam otherwise
also.
25. PW-5 Trilok Chand, who is the brother of deceased also deposed
that his brother himself told him that his wife Santosh and Gautam
Goswami had developed some illicit relations. He also deposed that once
his brother Jaipal had evicted Gautam Goswami from his tenanted
premises, still after 8-10 days Santosh herself brought tenant Gautam
Goswami back to the premises. The testimony of PW-5 Trilok Chand also
on this aspect remained unchallenged. Illicit relationship between two
accused persons was also established by the prosecution through the
evidence of PW-6 Munna Singh who in his deposition stated that accused
Santosh had also accompanied Gautam Goswami at the time of purchase
of Alprax medicine. These accused persons giving company to each other
for buying a medicine from a chemist shop has to be considered in the
light of the said incident and the other circumstances giving a clear hint
of their illicit relationship. In the light of the clear, consistent and
coherent deposition of these two witnesses, one can draw an easy
conclusion that both these accused persons were having an extra marital
relationship and the testimonies of some of the prosecution witnesses
based on the hearsay evidence, on this aspect can be easily ignored.
26. Dealing with the next contention of the counsel for the appellants
that there was no motive on the part of these accused persons to carry out
the murder of Jaipal, this argument of the counsel for the appellants
deserves outright rejection. There cannot be any strong motive other than
getting rid of a person who was a stumbling block in the said illicit
relationship between the two immoral lovers. The extra marital
relationship or the illicit relationship between two married persons
because of their dissatisfaction with their own partner for one or the other
reason, often results in the commission of such kind of crime and
percentage of such crime in the society is very high. Thus, the motive
clearly emerges in the circumstances that have been brought forth and
this contention stands devoid of any merit.
27. The next contention raised by the counsel for the appellants was
that the prosecution failed to produce the owner of the chemist shop in
the witness box and there was a contradiction in the testimony of PW-6
Munna Singh vis-a-vis his statement recorded under Section 161 Cr.P.C.
PW-6 Munna Singh is an independent witness. He was employed as a
salesman with Shiv Medical Store. In his deposition he clearly named
accused Gautam who came to the shop for purchasing Alprax medicine.
In his court deposition, he also named accused Santosh who was present
in court at that time, to have accompanied Gautam Goswami at the time
of purchase of the said medicine. There can be no reason to disbelieve the
testimony of this independent witness as even the defence has not
attributed any ill will or grudge of this witness to depose against the
accused persons who are otherwise customers of the chemist shop where
he was working. The testimony of this witness PW-6 Munna Singh
cannot be doubted merely because in his court deposition he took a stand
that he had handed over the medicine to his owner and the owner gave the
medicine to the accused while in his statement under Section 161 Cr.P.C.,
he stated that the medicine was given by him to the accused. This minor
variation in the statement of PW-6 Munna Singh is not enough to
disbelieve his court deposition and thus we do not find any merit in the
aforesaid contention raised by the counsel for the appellant.
28. It will be useful here to refer to the decision of the Apex Court in
Sidhan v. State of Kerala, 1986 Cri.L.J. 470, wherein it was held :
"Minor discrepancies regarding minute details of the incident
including the sequence of events and overt acts are possible
even in the version of truthful witnesses. In fact such
discrepancies are inevitable. Such minor discrepancies only
add to the truthfulness of their evidence. If on the other
hand these witnesses have given evidence with mechanical
accuracy that much have been a reason to contend that
they were giving, tutored versions. Minor discrepancies on
facts which do not affect the main fabric need not be taken
into account by the courts if the evidence of the witnesses is
found acceptable on broad probabilities."
29. Coming to the next contention of the counsel for the appellants that
there was a delay of four days in lodging of the FIR and during the said
period there was enough time for the police to fabricate the same so as to
falsely implicate these accused persons. Argument of the counsel for the
appellants was based on the premise that DD No.6A in this case was
lodged on 15.09.1996 at around 6.05 a.m. but the FIR in this case was
registered on 19.09.1996. Counsel also took a stand that the prosecution
also failed to explain the said four days delay in registration of the FIR.
This argument of the counsel for the appellants also has no leg to stand as
indisputably the complaint was lodged by PW-3 Shiv Charan, father of
the deceased, after he had reached at the spot of incident where he found
his son hanged with iron girder, PW-3 Shiv Charan accordingly, informed
the police that his son Jaipal had committed suicide. It was only after the
post mortem report, the police got an alert as in the post mortem report
the opinion given by the doctor was pointing to a case of culpable
homicide due to manual strangulation.
30. DD No.6A was lodged on a complaint made by PW-3 Shiv Charan
on the morning of 15th September 1996 informing the police that his son
Jaipal had committed a suicide. The Post Mortem Report was received by
the police on 16.09.1996 and it is through the post mortem report that the
police became suspicious on the role of the appellants and it is thereafter,
the investigation proceeded to a different angle. The Investigating Officer
had recorded the statement of PW-3 on 15.09.1996 and accordingly
endorsement on the rukka for the registration of the FIR was made on
19.09.1996. PW-14 HC Puran Chand in his cross examination had
admitted the fact that he cannot satisfy the circumstances, which
persuaded him in not registering the case till 19.09.1996. He also could
not afford any explanation in his cross examination as to why rukka was
not sent by him after he had recorded the statement of Shiv Charan and
Mittar Singh. Indisputably with the lodging of report of suicide by Shiv
Charan and the later events suggesting the case to be of murder, some
delay was occasioned to take place on the part of the police to register the
FIR under Section 302 IPC. However, we do not find any justification
from the police to have not recorded the statement of the prime witnesses
immediately after having obtained the post mortem report and thus,
clearly there was a delay of at least two days in the final registration of
the FIR, for which we do not find any justifiable explanation being given
by the police but that does not deprive the other evidence on record from
ratification and in no way makes it dubious.
31. It is a settled legal position that the delay in lodging the FIR is not
itself fatal to the case of the prosecution nor the delay itself can create any
suspicion about the truthfulness of the informant just as a prompt lodging
of the report may be no ground of its being wholly truthful as held by the
Apex Court in Shanmugam and another vs. State, represented by
Inspect of Police, Tamil Nadu, reported in (2013) 12 SCC 765. The
Apex Court in the same judgment also took a view that where the
explanations are not acceptable to the court, will depend upon the facts of
each case and there is no cut and ripe formula for determining whether
the explanation is or is not accepted. In the facts of the present case,
although, we do not find any justification given by the police for the
delay in registration of the FIR, yet considering the reliability and
creditworthiness of the evidence proved on record by the prosecution,
which found corroboration in the evidence of the post mortem report and
CFSL report, due to the lapses on the part of the concerned Investigating
Officer cannot be held fatal to the case of the prosecution in this case.
32. The relevant para of the Shanmugam & Anr. v. State (supra) are
reproduced as under:-
"9.1 Delay in the lodging of the FIR is not by itself fatal to
the case of the prosecution nor can delay itself create any
suspicion about the truthfulness of the version given by the
informant just as a prompt lodging of the report may be no
guarantee about its being wholly truthful. So long as there is
cogent and acceptable explanation offered for the delay it
loses its significance.
9.2Whether or not the explanation is acceptable will depend
upon the facts of each case. There is no cut-and-dried
formula for determining whether the explanation is or is not
acceptable."
33. Dealing with the next contention raised by counsel for the appellant
that none of the incriminating circumstances which were vital to the case
of the prosecution were put to the accused at the time of recording their
statement under Section 313 of Cr.P.C. As per counsel for the appellants
the circumstances which were not put to the accused, inter alia, were
regarding purchase of Alprax by the accused persons, regarding manual
strangulation of the deceased by the accused persons and lastly, about
finger nail marks found on the neck of the deceased. This submission of
counsel for the appellant is totally misconceived. Both the accused
persons were confronted with the post mortem report of the deceased
Jaipal, proved on record Ex.PW-10/A and the CFSL report Ex. PW-15/D
and the evidence regarding purchase of Alprax tablets from Shivam
Medical Store by these accused persons. Once any documentary
evidence, whether in the nature of post mortem report, CFSL report or
any other such incriminating evidence in the nature of any document is
put to the accused at the time of recording of his/her statement under
Section 313 of Cr.P.C., the accused cannot be heard to say that the
particular fact or finding in the documentary evidence was not
specifically put to him/her. Thus, the contention raised by counsel for the
appellants deserves outright rejection.
34. This brings us to the next contention raised by counsel for the
appellant Gautam Goswami that Jaipal had committed suicide due to
some property dispute which he had with his father and brothers but the
prosecution has given it the colour of the murder case at the instance of
PW 3 Shiv Charan. The other motive attributed to Shiv Charan was that
he wanted to get the tenanted premises vacated from Gautam Goswami,
therefore, he got him falsely implicated in the said case. This contention
raised by counsel for the appellant that Jaipal had committed suicide
because of some property dispute between him and his father cannot be
appreciated in the absence of any clear facts brought on record by the
defence. The accused Santosh has referred to a property dispute between
her and Shiv Charan and other brothers of the deceased in answer to the
residual question No.53, of her statement recorded under Section 313
Cr.P.C. and also a similar question put to PW-3 Shiv Charan during his
cross-examination. But no specific details with regard to the property or
with regard to the alleged disputes were spelt out by the defence. It was
just vaguely suggested that there was a property dispute between Shiv
Charan and his son. In the absence of any clear defence with regard to
alleged property dispute between Shiv Charan and his son, the argument
raised by counsel for the appellant on this aspect cannot be appreciated
and is thus rejected.
35. The other plea taken by learned counsel for the appellant - Gautam
Goswami was that Shiv Charan wanted to evict him from the tenanted
premises also does not cut much ice as no such evidence was produced on
record by the defence to show any kind of hostility or vendetta on the part
of Shiv Charan or if there were any steps taken by him to force Gautam
Goswami to vacate the tenanted premises.
36. One of the contentions raised by the counsel for the appellant-
Gautam Goswami, was that Gautam Goswami was leading a happy
married life with his family and the prosecution failed to adduce any
evidence to show that there was any kind of acrimony in his relationship
with his wife due to which he could have developed illicit relationship
with the co-accused Santosh. The best witness to prove to the cordiality
and happy married life of Gautam Goswami could be none else but the
wife of Gautam Goswami alone. Appellant Gautam Goswami failed to
produce his wife in the witness box and her non-production by the
appellant Gautam Goswami is a vital circumstance which goes adverse
against this appellant. For the prosecution, the onus was to establish the
illicit relationship between appellant Gautam Goswami and co-accused
Santosh and not to establish the cordiality in the relationship of Gautam
Goswami with his own wife. Certainly, appellant Gautam Goswami could
have raised suspicion over the prosecution version only by producing his
wife in respect of such a relationship. This argument of the learned
counsel for the appellant Gautam Goswami also does not lend any
support to his case.
37. Dealing with the other contention raised by the counsel for
appellant Gautam Goswami that no TIP was conducted by the police to
identify him by the salesman of chemist shop Munna Singh PW-6 and
therefore, the testimony of PW-6 should not be believed. This contention
raised by the counsel for appellant Gautam Goswami is also
misconceived like his other contentions. Indisputably, the said chemist
shop M/s Shiv Medical Store was located in the same vicinity where
Gautam Goswami and Santosh were residing. The said chemist shop Shiv
Medical Store was duly identified by accused Gautam Goswami in his
pointing memo proved on record as Ex. PW-5/C and had there been any
TIP, appellant Gautam could not have participated and even if he had
then normal defence could have been that he being the resident of the
same locality was a familiar face for PW-6 Munna Singh. Even otherwise
no separate request was made by accused Gautam Goswami for the
conduct of TIP proceeding for the identification by PW-6 Munna Singh.
38. Dealing with the last contention raised by the counsel for the
appellant that the learned trial court has failed to deal with the presence of
wire which was recovered from the spot. The contention of the counsel
for the appellant was that the wire was found at the spot of the crime and
even the investigation officer failed to conduct any investigation as to
who brought the said wire and what would be the role of the wire in the
commission of the said crime. Undoubtedly, from the spot of the crime
the wire was recovered from the taand of the kitchen of the house and the
said wire was taken into possession by PW-15 Inspector Raj Kumar vide
Memo Ex.(PW-5/B). This wire was recovered at the instance of appellant
- Gautam Goswami, pursuant to his disclosure statement
39. Both these accused persons in their respective disclosure statement
stated that after Santosh had called Gautam Goswami to her room around
2 or 2 ½ a. m. then Gautam Goswami first gave electric shock with the
help of electric wire to Jaipal and that moment when Jaipal tried to get up
with the effect of current he was manually strangulated with the help of a
sari already lying there. This electric wire was again put to use by the
accused persons as per their disclosure statement to give another electric
shock to Jaipal to reassure themselves that Jaipal was no more alive. Both
these accused persons have denied the presence of electric wire at the
spot of the crime and its use in electrocuting the deceased Jaipal, when a
question to this effect was put to them at the time of recording their
statement under Section 313 Cr.P.C. In the post mortem report of the
deceased Ex. PW10/A, one does not find any reference to any injury
which was sustained by the deceased on his body as a result of electric
shock given to him prior to and after his death.
40. Considering the fact that in the post mortem report there is a
categorical finding given by the autopsy doctor that the cause of death of
the deceased was strangulation and injury Nos.2 and 3 were opined to be
possible during the process of manual strangulation, no significance could
be attached to the presence and recovery of the said electric wire from the
spot of the crime. As the cause of death opined in the post mortem report
by the autopsy surgeon is exact, we may not look for any other
corroborative piece of evidence with the help of which the accused
persons might have achieved their ultimate goal. It is not the case of the
accused persons that the deceased Jaipal had died due to the electric
shock given by them and had this been the case then certainly the
prosecution would not have been left with any choice except to prove the
death of the victim as a result of electric shock received by him but in any
case that is not the position in the present case. We are thus not
persuaded to take any different view than the one taken by the learned
trial court simply because the learned trial court failed to deal with the
said aspect of the presence of the electric wire at the spot in the impugned
judgment. Therefore, the said contention raised by the appellant is
nothing but a fallacious attempt to confuse and deviate the mindset of the
court and hence, deserves outright rejection.
41. Taking a cumulative view of the facts and circumstances of the
present case, we are of the view that there is no perversity or illegality in
the reasoning given by the learned Additional Sessions Judge in the
impugned judgment vide which the learned trial court has rightly
convicted the appellants for the offence committed by them under Section
302 IPC. Hence, the impugned judgment dated 24.05.1999 and order on
sentence dated 27.05.1999, passed by the learned Sessions Judge are
upheld. Finding no merit in the present appeal the same is dismissed.
42. The appellants are on bail. Their bail bonds and sureties are
forfeited. They are ordered to be taken into custody forthwith.
43. A copy of this order be sent to the concerned Jail Superintendent
for information and necessary compliance.
KAILASH GAMBHIR, J.
SUNITA GUPTA, J.
JULY 18, 2014
v/pkb
