Jodhpal vs State
2014 Latest Caselaw 1132 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Date of Decision: 4th March, 2014
+       CRL.A. 207/2000

        JODHPAL                                      ..... Appellant
                          Through:     Mr. S.D.S. Rathore, Advocate

                          versus

        STATE                                        ..... Respondent
                          Through:     Ms. Richa Kapoor, Additional
                                       Public Prosecutor for the State
%

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE SUNITA GUPTA

                          JUDGMENT

: SUNITA GUPTA, J.

1. This appeal arises from the conviction of the appellant Jodhpal

on the charge u/s 304 (Part-I) IPC and 201 IPC in Sessions Case No.

120/1997 in FIR No. 496/96, in terms of the impugned judgment of

learned ASJ dated 12th April, 1999. The appellant has been sentenced

to imprisonment for life and to pay a fine of Rs.2000/- under Section

304 (Part-I) IPC and in default of payment of fine to undergo RI for

one year. He was further sentenced to undergo three years rigorous

imprisonment and to pay a fine of Rs.1000/-, in default of payment of

fine, to undergo three months RI for offence u/s 201 IPC. Both the

sentences were to run concurrently.

2. Succinctly stated, the case of the prosecution is as follows:-

3. On 24th October, 1996, at about 7:25 pm, one Ganga Ram,

father of the deceased lodged a report with the police station Kalyan

Puri which was recorded as DD No.13A. It was disclosed by Ganga

Ram that his daughter Seema aged about 25 years was married to

accused Jodhpal about 12 years ago according to Hindu Rites. After

marriage, Jodhpal used to maltreat his daughter and used to quarrel

with her after consuming alcohol. On that day, his wife had gone to

see her daughter where his grandson Sonu, S/o Ashok met her and

informed that Seema had been stabbed with knife by the accused. On

coming to know about this fact, he came to see his daughter at

Trilokpuri where he found her dead. On receipt of this DD, ASI

Sobran Singh along with Constable Jitender Kumar reached at house

No.3/150, Trilokpuri where he found the dead body of the deceased.

The accused produced the death certificate of the deceased. Since the

death had occurred in suspicious circumstances, he prepared inquest

report and got the post-mortem of the dead body conducted. After

post-mortem, the dead body was handed over to the father of the

deceased. ASI Sobran Singh recorded statement of Sonu on which

endorsement Ex. PW11/H was made and FIR Ex. PW6/A was

registered against the accused. In his statement, Sonu had disclosed

that he had been staying at the house of his Aunt (bua) Seema for the

last one month in order to look after her child Kishan. 5-6 days back,

her bua had returned home after finishing her duties. In the meantime,

his fufa Jodhpal came and demanded money for consuming liquor.

Seema declined but he forcibly snatched money from her. After some

time, he came back and inflicted knife blow on the abdomen of his

bua. He also gave beatings to him. Thereafter his fufa took his bua to

the hospital for treatment. He got scared. His fufa did not inform his

grandparents about the hospitalization of his bua where she expired.

The dead body was brought by his fufa to the house and he was going

to take her for cremation. In the meanwhile, his grandparents came

and he informed them about inflicting of the knife injury on the

abdomen of his bua by his fufa. Thereupon, his grandfather called the

police who took the dead body with them. After post-mortem, dead

body was handed over to them. His bua has been killed by his fufa

Jodhpal by inflicting knife injury and he has concealed this fact from

his family members. He prayed for action.

4. During the course of investigation, site plan Ex. PW11/J was

prepared. Accused was arrested. At his instance, the weapon of

offence was recovered. The statements of the witnesses were

recorded. After completing investigation, charge sheet was submitted

against the accused.

5. In order to substantiate its case, prosecution examined 11

witnesses. All the incriminating evidence was put to the accused while

recording his statement under Section 313 Cr.P.C. wherein he denied

the case of prosecution and alleged false implication in this case. He

further stated that he was residing along with Seema in premises

No.5/111-112 Trilokpuri. However, he denied that Sonu was residing

with them. According to him, his relations were cordial with his wife.

On 21st October, 1996, his wife was coming from upper portion with

washed utensils and had accidentally fallen with the utensils on the

ground floor and some sharp object was lying against which his wife

struck and received injuries on lower portion of abdomen. He took

her to GTB Hospital and got her treated there. He had informed his

in-laws through his brother Jagdish regarding admission of Seema in

GTB Hospital and his in-laws had visited Seema in GTB Hospital.

Due to negligence of the doctor in not giving proper treatment, she

developed septic and fever and died. Since his parents and brothers

and their families were residing at 3/150, Trilok Puri, therefore, after

the death of Seema, he brought the dead body to that house and

information was sent to his in-laws. Subsequently, out of sheer

vengeance, his in-laws concocted false allegations by tutoring Sonu to

depose against him. Sonu was never residing with him or his wife on

or before 21st October, 1996 and whatever he had stated to the police

or in the Court was on account of tutoring at the instance of in-laws.

Other witnesses were related to his in-laws or under their influence,

and therefore, they have made false statements against him. He

pleaded his innocence and alleged false implication in this case.

6. Although, initially he stated that he does not want to lead

defence evidence, however, later on, he examined three witnesses in

support of his defence.

7. Learned Trial Court relied upon the testimony of PW1 Sonu

and convicted the appellant. Feeling aggrieved, the present appeal has

been preferred by the appellant.

8. We have heard Sh. S.D.S. Rathore, Advocate for the appellant

and Mr. Sunil Sharma, learned Additional Public Prosecutor for the

State and have perused the record.

9. It was submitted by the learned counsel for the appellant that

there is gross delay in lodging the FIR, inasmuch as, the alleged

incident is dated 21st October, 1996 whereas the FIR was registered on

25th October, 1996 on the basis of statement of Sonu. His statement

was recorded without oath. Reference was made to the initial

statement made by him to the police and his deposition in the Court

and it was submitted that the same was a tutored version. There is

material contradiction in his testimony. Moreover, he is an interested

witness and depositions of remaining witnesses are hearsay.

Conviction cannot be based on the testimony of this child witness.

The alleged weapon of offence was neither produced before the doctor

for opinion nor sent to FSL. No sketch of the knife was prepared and

even the doctor could not say whether the injuries were homicidal,

accidental or suicidal. As such, prosecution has failed to prove its

case beyond reasonable doubt. The benefit of doubt is required to be

given to the accused. As such, he be acquitted of the offence alleged

against him.

10. Rebutting the submissions of learned counsel for the appellant,

it was submitted by learned Additional Public Prosecutor for the State

that there is an eye witness account of the incident in the shape of

testimony of PW-1 who has deposed in the most natural and straight

forward manner and has stood the test of cross-examination. His

testimony finds corroboration from the testimony of PW-3. The

weapon of offence was recovered at the instance of the accused. The

act of the accused and his relatives in not informing the family of the

deceased about the incident and then making preparation for

cremation of the deceased fortifies the prosecution case. The Trial

Court findings are cogent, correct and are based on truthful

appreciation and the evidence led by the prosecution. The accused

has rightly been convicted by the Trial Court and the appeal deserves

to be dismissed.

11. We have given our thoughtful consideration to the respective

submissions of learned counsel for the parties and have perused the

record.

12. The star witness of prosecution is PW1 Sonu on whose

statement, FIR was registered. At the time of incident, the witness

was 10 years old and when he came to depose in the Court, he was 12

years of age. Before recording the statement of the witness, certain

questions were put by the learned Trial Court in order to ascertain the

competency of the witness and as to whether he could be administered

oath or not and it was opined that the witness does not understand the

sanctity of oath. As such, his statement was recorded without oath.

13. Before scrutinizing the testimony of solitary eye witness to the

incident, who was a child aged about ten years, let us have a glance at

the legal position concerning the testimony of a child witness.

14. Indian Evidence Act, 1872 (in short the 'Evidence Act') does

not prescribe any particular age as a determinative factor to treat a

witness to be a competent one. On the contrary, Section 118 of the

Evidence Act envisages that all persons shall be competent to testify,

unless the Court considers that they are prevented from understanding

the questions put to them or from giving rational answers to these

questions, because of tender years, extreme old age, disease- whether

of mind, or any other cause of the same Kind. A child of tender age

can be allowed to testify if he has intellectual capacity to understand

questions and give rational answers thereto. This position was

concisely stated by Brewer J in Wheeler v. United States 159 U.S.

523. The evidence of a child witness is not required to be rejected per

se; but the Court as a rule of prudence considers such evidence with

close scrutiny and only on being convinced about the quality thereof

and reliability can record conviction, based thereon. (Vide Surya

Narayana v. State of Karnataka 2001 (1) Supreme 1).

15. In Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5

SCC 341, it was held as follows:

"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 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".

16. While appreciating the evidence of a child witness of extreme

tender age, it would be desirable for the Court to keep in mind the

principle that although there is no bar in accepting the uncorroborated

testimony of a child witness yet prudence requires that court should

not act on the uncorroborated evidence of a child whether sworn or

unsworn. While dealing with this aspect of the case, their Lordships of

the Privy Council in Mohamed Sugal Esa v. The King, AIR 1946 PC

3, observed as follows (at pages 5 & 6) :--

"In the Indian Act there is no such provision and the evidence is made admissible whether corroborated or not. Once there is admissible evidence a Court can act upon it, corroboration, unless required by statute, goes only to the weight and value of the evidence. It is a sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law."

17. Again in Panchhi Vs. State of UP (1998) 7 SCC 177 it was

held that evidence of the child witness must be evaluated more

carefully and with greater circumspection because a child is

susceptible to be swayed by what others tell him and thus an easy prey

to tutoring. The evidence of the child witness must find adequate

corroboration before it is relied upon, as the rule of corroboration is of

practical wisdom than of law. [vide Prakash vs. State of MP,(1992) 4

SCC 225].

18. Adverting to the case in hand, a perusal of the initial statement

Ex.PW1/A and the deposition of the witness in the Court reflect that

there are material improvements. In the initial statement Ex.PW1/A to

the police, Sonu disclosed that on the fateful day, the accused

demanded money from his bua for the purpose of drinking liquor and

when she declined, then he snatched money from her. After some

time he came to the house and lifted a vegetable knife and inflicted

injuries on the lower part of the abdomen of his bua. He gave

beatings to him as well. He took his bua to the hospital. As such,

through this statement of Sonu it is revealed that demand for money

for drinking liquor was made only once and immediately after

stabbing bua she was taken to the hospital by the accused. However,

in his deposition before the Court, he has stated that he used to reside

at the house of her bua in order to look after her son Kishan who was

aged about 4 years as Seema used to go to work as maid servant in the

kothis. There had been frequent quarrels between his bua and fufa.

His fufa used to ask for money from his bua for drinking liquor and

his bua used to refuse to give money to him. Thereupon accused used

to beat his bua and snatch money. On one night, he saw the accused

forcibly snatching money from his bua and giving beatings to her with

danda and kicks. He further deposed that on one day, during noon,

again the accused asked money from his bua and snatched some

money and left the house. Again, he came and demanded money

which was refused by his bua as she was to purchase ration and to pay

rent of the house. Upon this, accused lifted a knife from nearby and

gave a knife blow on the abdomen of his bua. Some flesh came out of

his bua, thereupon, he informed brother of the accused who used to

reside in the neighbourhood and informed him about the incident.

Brother of the accused came and took his bua to his house. One

doctor was called who stitched her wound. However, her bua started

vomiting. Thereupon, she was removed from the house. However, he

could not say whether she was moved to the hospital or somewhere

else. His grandmother Omwati came to the house and enquired about

his bua, then, he informed her about the incident. His grandmother

Omwati called the police when accused was taking the dead body for

cremation. Police recorded his statement Ex.PW1/A which bears his

thumb impression. As such, there are material improvements in the

testimony of this witness.

19. Further, Sonu was a nephew of the deceased. As per the case of

prosecution he had come to reside with the accused and deceased for

last one month in order to look after her minor child Kishan.

However, accused in his statement under Section 313 Cr.P.C. has

denied that Sonu was residing with them in their house. As such, it

was incumbent upon the prosecution to prove that this witness was

residing with the accused and deceased in their house and therefore

had an occasion to witness the incident. Neither PW Ganga Ram,

father of the deceased, nor PW Rakesh, brother of the deceased, have

deposed that Sonu was residing in the house of the accused. Parents

of Sonu have not been examined to prove that they had sent Sonu to

the house of his bua to look after her small child. ASI Sobram Singh

has deposed that he had prepared the site plan Ex.PW11/J on the

pointing out of Sonu, however, he admitted in cross-examination that

neither it has been mentioned in the site plan that it was prepared at

the instance of Sonu nor his position has been shown in the site plan

as to from where he had witnessed the incident. As such, it is not

established beyond reasonable doubt that Sonu was residing in the

house of the accused, as such, his presence at the spot on the fateful

day is not established.

20. Moreover, Sonu has deposed that the relation between the

accused and the deceased were not cordial. According to him, the

accused used to give beatings to his bua for demanding money for

consuming liquor. However, this part of his testimony does not find

corroboration from any other material on record, inasmuch as, the

Investigating Officer of the case has admitted that in their statement

recorded on 24th October, 1996, Ex.PW3/A and Ex. PW2/A, Ganga

Ram, father of the deceased and Ramesh, brother of the deceased did

not allege anything incriminating against the accused. Neither the

father nor the brother of the deceased have deposed anything against

the accused. Examination-in-Chief of Ganga Ram was conspicuously

silent regarding any ill-treatment meted out to the deceased by the

accused. It is only in cross-examination that he has deposed that prior

to the incident, his daughter used to tell that she was occasionally

beaten by the accused. Brother of the accused, PW4 Rakesh also does

not depose anything regarding the strained relations between the two.

Mother of the deceased Omwati has not been examined by the

prosecution. Investigating Officer of the case has admitted that he did

not make any inquiry from the neighbours to ascertain the relationship

between the accused and his wife, as such, it is not proved on record

that relation between the accused and his wife were strained or that

she used to be tortured by the accused in order to part with money for

drinking liquor.

21. On the other hand, if the incident, as alleged, had taken place

the accused would not have made efforts to save his wife. However,

record reveals that after Seema sustained injuries, a private

practitioner was called, and thereafter, she was taken to a private

nursing home and on being advised by the private nursing home, she

was taken to GTB Hospital by the accused himself. This plea taken

by the accused find support from the testimony of his own brother

DW2 Jagdish and DW3 Dr. Prem Arora who brought the medical

record from GTB Hospital. Even the Investigating Officer has

admitted that investigation revealed that accused himself had taken his

wife to GTB Hospital. Inquiries also revealed that the accused used to

remain with his wife in GTB Hospital till the time she remained there.

After her death in the hospital, he brought her back to the house.

According to Dr. Prem Arora it was not a medico-legal case. If a foul

play had been noticed by the hospital authorities, then they themselves

would have informed the police about the admission of Seema in

hospital. Record brought by Dr. Prem Arora does not reflect that the

patient was not conscious at any point of time. Therefore, if

something abnormal had been found, the doctors would have taken

extra precaution to enquire from the patient herself, but there is

nothing of that sort on the record. After her death, the death

certificate was also given to the accused who brought the deceased to

his house and was throughout available. Even on 26th October, 1996

when police came to arrest him, he was present at his house and on

seeing them also he did not try to run away. The aforesaid conduct of

the accused, to some extent, lend credence to the plea taken by him

that he was innocent.

22. Moreover, according to Sonu, on the night of the incident he

and Kishan remained in the house of his bua. On the next day his

grand-mother Omwati came and took him and Kishan at Harkesh

Nagar where he informed them about the incident. Even after coming

to know about the incident the family members of the deceased did

not make any effort to inform the police. It was only after the death

of the deceased and after the post mortem examination of the

deceased was conducted that statement of Sonu was recorded.

Statement of Sonu was read over to his grandmother and grandfather

by the police and not to him. Therefore, since Sonu was with the

parents of the deceased when his statement Ex.PW1/A was recorded

by the police, possibilities of tutoring the witness and recording his

statement Ex.PW1/A at their instance cannot be ruled out. On an

overall view of the aforesaid circumstances, it will not be safe to

convict the accused on the solitary testimony of Sonu unless it finds

corroboration from other attending circumstances.

23. The other piece of evidence relied upon by prosecution is the

recovery of weapon of offence at the instance of accused. It is the

case of the prosecution that on 26th October, 1996 at the instance of

PW4 Rakesh, accused was arrested by the police. He made a

disclosure statement Ex.PW4/B stating therein that he got the knife

recovered from House No. 5/111-112 Trilokpuri. Thereafter, he led

the police party to his house and took out the knife from the parchatti

of the first floor of the house. The knife was taken into possession

vide recovery memo Ex.PW4/C. The recovery is alleged to have been

affected in the presence of two independent witnesses, namely, PW4

Rakesh and PW5 Ramesh. So far as PW4 Rakesh is concerned, he

has not supported the case of prosecution in this regard, as according

to him, he was called by the police at Police Station Trilokpuri on the

next day and there he was shown a knife and was asked to identify the

same. But he refused to identify the same. He further deposed that

knife Ex.P-1 was the knife which was shown to him in the Police

Station. He denied the suggestion that accused took out the knife

from the Parchatti of the house or that in his presence the knife was

taken into possession. Even PW5 Ramesh has denied the presence of

any other independent witness at the time of recovery of the knife.

However, he has admitted that the recovery of knife was affected at

the instance of the accused in his presence. He is an independent

witness, therefore, there is no plausible reason as to why he should be

dis-believed.

24. The question for consideration, however, is whether this was

the knife which was alleged to have been used in the commission of

crime. In view of the discussion made hereinafter, here also

prosecution failed to establish that this was the weapon of offence:-

(i) Sonu was the solitary eye witness to the incident and this

witness was not shown the knife in order to ascertain whether this

was the same knife with which accused is alleged to have inflicted

injuries on the lower part of abdomen of the deceased.

(ii) The knife was not having any blood stain and as such it was

not sent for any scientific test.

(iii) It is an admitted case of prosecution that knife when

recovered was „bent‟. ASI Sobram Singh has admitted that

witnesses had informed him that the knife was in the same bent

position at the time of occurrence. According to PW8-Constable

Subhash, no sharp injury could be caused by such knife.

(iv) Dr. L.T. Ramani who conducted the post-mortem

examination was not shown the knife in order to obtain his opinion

as to whether injury could have been caused with this knife.

25. The totality of the circumstances goes to show that prosecution

has miserably failed to prove that knife Ex.P-1 was the weapon of

offence which was allegedly used in the commission of the crime.

26. Last but not the least, it is not even established that Seema met

a homicidal death. The case of prosecution is that the deceased met a

homicidal death whereas case of accused is that Seema sustained

accidental injuries.

27. In order to prove the fact that Seema met a homicidal death, the

prosecution has relied upon the eye witness account of the incident

and recovery of weapon of offence, which in view of the discussion

made above, has failed. The last piece of evidence relied upon by the

prosecution is the post-mortem report Ex.PW9/A given by Dr. L.T.

Ramani who conducted the post-mortem on the dead body of Seema.

Dr. L.T. Ramani has deposed that on examination, he found following

injuries on the person of the deceased:-

(i) Stitched wound 6"long on the lower part front of abdomen between unblicus and pubic region (operational)

(ii) Tinny abrasion 0.2 x 0.2 cm. On the right lower part of neck.

(iii) Stitched wound ¾" long vertical on the right iliac region of abdomen.

(iv) Tinny punctured wound (0.3 cm.) on the left side middle part of neck.

28. It was opined that injuries were ante-mortem. Injury to the

neck and small intestine was caused with a penetrating weapon.

Injury to abdominal viscera was sufficient to cause death in the

ordinary course of nature. Death was due to septicaemia and

peritonitis consequent to injury to small intestine. In cross-

examination, he deposed that he was not sure about the weapon of

offence alleged to have been used in this case. The same was not

shown to him and even if the same was shown to him he would not be

in a position to give any opinion as to whether the injuries on the

abdomen of deceased could have been caused by knife or not because

the wounds were stitched and were surgically interfered with. As

regards the punctured wound on the neck region, he could not say if it

was a surgical procedure or due to some injury caused.

29. The case of the accused, on the other hand, is that Seema

sustained injuries accidentally when she was coming downstairs along

with washed utensils. Some sharp object was lying against which she

struck and received some injury on lower portion of the abdomen.

According to him, due to negligence of the doctor in not providing her

proper treatment, Seema died. It is the admitted case of the parties

that Seema was under treatment at GTB hospital. It was incumbent

upon the prosecution to have examined the concerned doctor who

gave treatment to her but no such effort was made. It was accused

who initially examined DW1 Sh. R.S. Sharma, Record Clerk, GTB

Hospital who brought the record pertaining to Seema who was

admitted in the hospital on 21st October, 1996 and expired on 24th

October, 1996. As per the record, it was not a medico-legal case. He

proved the death summary Ex.DW1/A, Death Certificate Ex.DW 1/B

and case sheet Ex. DW1/C running into 23 pages. Thereafter he

examined DW-3 Dr. Prem Arora from GTB Hospital who brought the

complete medical record pertaining to patient Seema who was

admitted in the hospital on 21st October, 1996. According to him, as

per the history given at the time of admission of patient, she had

trauma, lower abdomen with "sharp piece of iron". She had got CLW

stitched by some private practitioner. From private practitioner, she

was taken to Malhotra Nursing Home on 21st October, 1996 where she

was diagnosed acute peritonitis and referred to GTB Hospital by the

Nursing Home. No history of medico-legal case was given either by

the patient or attendant. She was operated upon on 22nd October,

1996 on account of acute peritonitis at GTB Hospital and she expired

on 24th October, 1996. The cause of death was "perforation peritonitis

with septicaemia." He further deposed that septic developed during

the treatment to the patient. Had this septic not developed in the

body, the death was unlikely. Since the patient was not attended or

operated at initial stages, there is possibility of patient developing

septic in her wound. In pursuance to a court question, the witness

deposed that on seeing the history sheet, no opinion can be

expressed as to whether the injuries were homicidal, accidental or

suicidal.

30. It is pristine rule of law that the burden of proving its case

beyond reasonable doubt is always on the prosecution. An accused is

presumed to be innocent till his guilt is proved to the hilt. The golden

thread which runs through the web of administration of justice in

criminal cases is that if two views are possible on the evidence

adduced in the case, one pointing to the guilt of the accused and the

other to his innocence, the view which is favourable to the accused

should be adopted. In the instant case, there is no categorical finding

by Dr. L.T. Ramani who conducted post-mortem on the body of

deceased that death was homicidal. On the other hand, Dr. Prem Arora

from GTB Hospital could not give any opinion as to whether the

injuries were homicidal, accidental or suicidal. In fact, according to

both the doctors, cause of death was same-perforation peritonitis with

septicaemia. That being so, it is not established beyond reasonable

doubt that Seema met a homicidal death.

31. The other charge against accused under Section 201 IPC is that

he tried to disappear evidence by taking the dead body of his wife for

cremation with intention to screen from legal punishment. In order to

substantiate this plea, PW3 Ganga Ram has deposed that accused and

his family members concealed the fact as to where Seema was

hospitalised and, therefore, he and his son were searching for Seema

in hospitals. They also went to SDN hospital but could not find her

there. After searching his daughter in the hospitals, he and his wife

Omwati came to House No.3/150 Trilokpuri and found that accused

and his relatives were preparing to take the dead body of Seema for

cremation. After leaving his wife at the spot, he went to Police

Station Trilokpuri and informed them about the facts. However, his

testimony does not find corroboration from his own son Rakesh, who

nowhere deposed that he along with his father went in search of his

sister. Omwati has not been examined by prosecution to prove this

fact. Moreover, if the testimony of this witness is believed to be true,

then nothing prevented him or his family members from informing

the police about some foul play when it is the case of prosecution

itself that on the very next day of the incident, they had come to know

from Sonu that Seema has been stabbed with a knife by the accused.

However, till her death on 24.10.1997, no information was given to

the police at all. This also raises a suspicion about the case set up by

the prosecution that accused tried to destroy evidence by taking the

dead body for cremation secretly without informing relatives of the

deceased.

32. On the other hand, it is the case of the accused that when

Seema met with accidental injury by falling on some sharp iron patti;

on the advice of Doctor, he took her to GTB hospital and information

was also sent to parents of Seema, who also visited GTB hospital.

DW-2 Jagdish, brother of the accused has deposed on the same lines.

He has testified that on receipt of information that his bhabhi had

received some injuries, he went to her house at Trilokpuri and then

took Seema along with his brother to the doctor. Seema was

vomiting. As such, the doctor advised his brother to take his wife to

GTB hospital. Accused Jodhpal took his wife to GTB hospital and he

went to his in-laws house to inform them about the incident. He

further deposed that parents of his bhabhi accompanied him to GTB

hospital and during the period of her hospitalisation for 3-4 days,

parents of Seema had been visiting her at the hospital. That being the

situation, prosecution has failed to prove that the accused tried to

disappear evidence by taking the dead body of Seema for cremation

without informing her parents, as such offence u/s 201 IPC is not duly

proved.

33. The cumulative effect of the aforesaid discussion is that neither

the prosecution could prove the charge u/s 304 Part I IPC nor u/s 201

IPC.

34. However, before parting with, there are certain other aspects of

the matter which deserves mention.

35. In criminal trial, one of the cardinal principle is registration of

earliest information as FIR. As observed by Hon‟ble Supreme Court

in Lalita Kumari vs. Govt. Of Uttar Pradesh and Ors., (2014) 2 SCC

1, the object sought to be achieved by registering the earliest

information as FIR is inter alia two fold:- One, that the criminal

process is set into motion and is well documented from the very start;

and second, that the earliest information received in relation to the

commission of a cognizable offence is recorded so that there cannot

be any embellishment, etc., later. In case there is delay in lodging the

FIR, the Court looks for plausible explanation for the delay in lodging

the report. The reason is obvious. Delay sometimes afford

opportunity to the complainant to make deliberation upon the

complaint and to make embellishment or even make fabrications.

Delay defeats the chance of the unsoiled and untarnished version of

the case to be presented before the Court at the earliest instance. That

is why if there is delay in either coming to the police or before the

Court, the Court also views the allegations with suspicion and looks

for satisfactory explanation. If no such explanation is found, the

delay is treated as fatal to the prosecution case.

36. In Thulia Kali v. The State of Tamil Nadu, (1972) 3 SCC 393,

it was held that the delay in lodging the first information report quite

often results in embellishment as a result of afterthought. On account

of delay, the report not only gets bereft of the advantage of

spontaneity, but also danger creeps in of the introduction of coloured

version, exaggerated account or concocted story as a result of

deliberation and consultation.

37. In Ram Jag and Ors. v. The State of U.P., (1974) 4 SCC 201,

the position was explained that whether the delay is so long as to

throw a cloud of suspicion on the seeds of the prosecution case must

depend upon a variety of factors which would vary from case to case.

Even a long delay can be condoned if the witnesses have no motive

for implicating the accused and/or when plausible explanation is

offered for the same. On the other hand, prompt filing of the report is

not an unmistakable guarantee of the truthfulness or authenticity of

the version of the prosecution.

38. In the case of Jai Prakash Singh v.State of Bihar & Anr., 2012

CRI.L.J.2101 the Supreme Court held:

"The FIR in criminal case is vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question."

39. In the instant case, the incident is alleged to have taken place

on 20.10.1997. The FIR was registered only on 25.10.1997, as such

there is gross delay in lodging of the FIR. That being so, it is to be

seen whether any explanation has been given by the prosecution.

Record reveals that Seema used to work as a maid servant in Kothis.

Her mother Omwati also used to work as a maid servant in kothis in

the same locality. According to PW3 Ganga Ram, Omwati was

informed by the kothiwalas in whose house Seema was working that

she was not reporting to work for the last two days and, as such,

Omwati was asked to enquire as to why Seema was not coming to

work. As such, Omwati went to the quarter at Trilokpuri but did not

find Seema over there. Thereafter, she went to quarter No.150, Gali

No.3, Trilokpuri where she met all the family members including

Sonu. She enquired from Sonu who informed her that Seema had

been stabbed and had been taken at some unknown destination.

Omwati brought Sonu and Kishan with her and informed Ganga Ram

about the same. Thereafter, it is his case that he and his son had been

searching for Seema in various hospitals but could not find her and

ultimately when he came to house No. 150, Gali No. 3, Trilokpuri at

that time he found that accused and his relatives were preparing to

take the dead body of Seema for cremation. Thereupon, he went to

police station and informed the police. It is pertinent to note that

Omwati was the most material witness, however, for reasons best

known to the prosecution, she was withheld and as such, an adverse

inference has to be drawn against the prosecution. Besides the same,

according to Sonu, on the very next day of incident, he was taken by

Omwati to his house. Even the Investigating Officer of the case has

admitted in cross-examination that during the course of interrogation

of witnesses and other relatives of the deceased, he came to know that

Sonu had gone on that very day to Naraina with Ganga Ram and

Rakesh to their house. If that is so, there is absolutely no explanation

as to why despite coming to know from Sonu that Seema had been

stabbed by the accused, police was not informed immediately.

40. The learned Trial Court did not consider the delay to be fatal in

the instant case by presuming that the family members may be under

the impression that the injuries sustained by Seema may not be grave

in nature and she may survive and therefore, they did not rush to

police station to lodge a complaint against the accused. This

reasoning of the learned Trial court is not borne out from the record

inasmuch as neither the brother nor the father of the deceased gave

any explanation as to why the police was not informed after they had

come to know from Sonu that Seema has been stabbed with knife by

the accused when according to Ganga Ram, the accused and his

family members were not disclosing the truth to them and, therefore,

he had been visiting various hospitals but could not find Seema

anywhere. Even at that juncture, police was not informed suspecting

some foul play. Under the circumstances there is unexplained delay

in lodging the FIR which is fatal to the prosecution case.

41. The manner in which investigation has been conducted by ASI

Sobran Singh suffers from such serious lapses that with utter disgust

and dismay, we express our utmost displeasure. It was a serious

offence concerning the death of a young woman, yet the investigation

was assigned to PW11-Assistant Sub-Inspector Sobram Singh. Time

and again various guidelines have been given by the Hon‟ble

Supreme Court as well as by this Court that in such serious offences,

investigation is required to be conducted by an officer, not less than

the rank of Inspector, however, in the present case investigation was

conducted by an officer of the rank of ASI. The investigation is not

only faulty but also reflects the callous and casual approach adopted

by the police officer in conducting the investigation which is detailed

as under:-

(i) According to him, on 24th October, 1996 DD No. 13A, Ex.

PW11/A was entrusted to him for investigation. This DD was

recorded on the statement of Sh. Ganga Ram, father of the

deceased, wherein he stated that his daughter got married to

Jodh Pal about 12 years ago. After marriage, his son-in-law

used to maltreat his daughter Seema and after consuming

liquor, used to quarrel with her. On that day, his wife had

gone to meet his daughter, however, his grandson, namely,

Sonu informed her that his fufa had caused injuries to her bua

with a vegetable cutter knife. On coming to know about this

fact he went to Trilokpuri to see his daughter, however, Seema

was found dead. It is not clear as to why FIR could not be

registered on the basis of this statement made by Ganga Ram

and instead DD No. 13A was recorded.

(ii) Be that as it may be, on receipt of this DD ASI Sobran

Singh went to the spot along with father of the deceased and

found the dead body lying outside the house. According to

him, he prepared inquest papers Ex.PW11/B and sent the dead

body to mortuary for post-mortem examination. Despite the

fact that this DD was recorded on 24th October, 1996 at 7:25

p.m., which makes a mention that Ganga Ram was informed by

Sonu that accused inflicted knife injuries on the lower portion

of her abdomen, yet no effort was made by the ASI to

immediately record the statement of Sonu. He admits that on

24th October, 1996 Ganga Ram came to Police Station at 7:30

p.m. but did not inquire from him about Sonu nor asked him to

produce Sonu in the Police Station, nor did he himself go to

record his statement.

(iii) According to him, post mortem could not be conducted

on the same day and it was conducted on 25th October, 1996.

Sonu met him in the mortuary and at that time he recorded his

statement Ex.PW1/A at 4:15 pm, made endorsement

Ex.PW11/H and then got the FIR Ex.PW6/A registered.

Therefore, despite coming to know that such a heinous crime

has taken place, callousness on the part of ASI is writ large

from the fact that inspite of the fact that serious allegations

were made by Ganga Ram, no FIR was registered on 24th

December, 1996, nor any effort was made to record the

statement of Sonu or to get the FIR registered promptly.

(iv) According to him, on 24th October, 1996 when he visited

the spot he interacted with several persons, but did not examine

any neighbour to ascertain relations between the accused and

his wife.

(v) After alleged recovery of knife at the instance of the

accused, he did not prepare even the sketch of the knife which

could show the measurement of the knife in order to ascertain

whether injuries could have been possible with the knife which

was allegedly recovered at the instance of the accused.

(vi) He admitted that he did not produce the knife Ex.P-1 to

Dr. L.T. Ramani in order to seek his subsequent opinion

regarding possibility of injuries with the recovered weapon of

offence. Not only that, knife was recovered in bent condition

and he came to know from Sonu that it was in the same

condition on the date of incident, but no effort was made to

ascertain from the doctor whether injuries could have been

caused by such bent knife.

(vii) The deceased was admitted in GTB Hospital. For the

first time Investigating Officer visited GTB Hospital on 29th

November, 1996 and moved an application for taking into

possession the medical papers of deceased Seema. According

to him, inspite of writing the application, the hospital

authorities did not give him the complete photocopies of the

medical treatment given to the deceased. He contacted the

Record Incharge of GTB Hospital to give him the attendance

register, bed-sheet and other medical papers and treatment

given to Seema and to examine the doctor, however, he

admitted that he did not contact the Chief Medical Officer of

GTB Hospital personally to make a request for making him

available the complete medical records.

(viii) During the entire investigation, he did not come to know

the name of the doctor who had attended and operated the

deceased in GTB Hospital. He admitted that he did not contact

any doctor at GTB Hospital to show them the copy of death

certificate produced before him by the accused or to examine

the doctor and get their opinion regarding the history of the

case or cause of death.

42. All this reflects the slipshod manner in which investigation has

been carried out by the Investigating Officer of the case. The net

result is the acquittal of the accused. Recently, Hon‟ble Supreme

Court in State of Gujarat v. Kishanbhai, 2014(1) SCALE 177, took

a note of serious lapses committed by the investigating agencies in

not carrying out its most solemn duty of conducting fair, honest,

flawless and scientific investigation into any crime. The relevant

observations and directions given in the said decision are reproduced

as under:-

"17. Every time there is an acquittal, the consequences are just the same, as have been noticed hereinabove. The purpose of justice has not been achieved. There is also another side to be taken into consideration. We have declared the accused-Respondent innocent, by upholding the order of the High Court, giving him the benefit of doubt. He may be truly innocent, or he may have succeeded because of the lapses committed by the investigating/prosecuting teams. If he has escaped, despite being guilty, the investigating and the prosecution agencies must be deemed to have seriously messed it all up. And if the accused was wrongfully prosecuted, his suffering is unfathomable. Here also, the investigating and prosecuting agencies are blameworthy. It is therefore necessary, not to overlook even the hardship suffered by the accused, first during the trial of the case, and then at the appellate stages. An innocent person does not deserve to suffer the turmoil of a long drawn litigation, spanning over a decade, or more. The expenses incurred by an accused in his defence can dry up all his financial resources - ancestral or personal. Criminal litigation could also ordinarily involve financial borrowings. An accused can be expected to be under a financial debt, by the time his ordeal is over.

18. Numerous petitions are filed before this Court, praying for anticipatory bail (under Section 438 of the Code of Criminal Procedure) at the behest of persons apprehending arrest, or for bail (under Section 439 of the Code of Criminal Procedure) at the behest of persons already under detention. In a large number of such petitions, the main contention is of false implication. Likewise, many petitions seeking quashing of criminal

proceeding (filed under Section 482 of the Code of Criminal Procedure) come up for hearing day after day, wherein also, the main contention is of fraudulent entanglement/involvement. In matters where prayers for anticipatory bail or for bail made under Sections 438 and 439 are denied, or where a quashing petition filed under Section 482 of the Code of Criminal Procedure is declined, the person concerned may have to suffer periods of incarceration for different lengths of time. They suffer captivity and confinement most of the times (at least where they are accused of serious offences), till the culmination of their trial. In case of their conviction, they would continue in confinement during the appellate stages also, and in matters which reach the Supreme Court, till the disposal of their appeals by this Court. By the time they are acquitted at the appellate stage, they may have undergone long years of custody. When acquitted by this Court, they may have suffered imprisonment of 10 years, or more. When they are acquitted (by the trial or the appellate court), no one returns to them; what was wrongfully taken away from them. The system responsible for the administration of justice, is responsible for having deprived them of their lives, equivalent to the period of their detention. It is not untrue, that for all the wrong reasons, innocent persons are subjected to suffer the ignominy of criminal prosecution and to suffer shame and humiliation. Just like it is the bounden duty of a court to serve the cause of justice to the victim, so also, it is the bounden duty of a court to ensure that an innocent person is not subjected to the rigours of criminal prosecution.

19. The situation referred to above needs to be remedied. For the said purpose, adherence to a simple procedure could serve the objective. We accordingly direct, that on the completion of the investigation in a criminal case, the prosecuting agency should apply its independent mind, and require all shortcomings to be rectified, if necessary by requiring further investigation. It should also be ensured, that the evidence gathered during investigation is truly and faithfully utilized, by confirming that all relevant witnesses and materials for proving the charges are conscientiously presented during the trial of a case. This would achieve two purposes. Only persons against whom there is sufficient evidence, will have to suffer the rigors of criminal prosecution. By following the above procedure, in most criminal prosecutions, the concerned agencies will be able to successfully establish the guilt of the accused.

20. Every acquittal should be understood as a failure of the justice delivery system, in serving the cause of justice. Likewise, every acquittal should ordinarily lead to the inference, that an innocent person was

wrongfully prosecuted. It is therefore, essential that every State should put in place a procedural mechanism, which would ensure that the cause of justice is served, which would simultaneously ensure the safeguard of interest of those who are innocent. ........

21. On the culmination of a criminal case in acquittal, the concerned investigating/prosecuting official(s) responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. ........"

43. In view of the serious lapses noted above in the conduct of

investigation, we direct the concerned Joint Commissioner of Police

to initiate departmental action against the Investigating Officer of the

case and the other erring officials.

44. For the foregoing reasons, in our opinion, the impugned order

of conviction and sentence cannot be sustained. The appeal is

accordingly allowed. Appellant is acquitted of the offence. His bail

bonds are discharged. Trial Court record be sent back.

(SUNITA GUPTA) JUDGE

(KAILASH GAMBHIR) JUDGE MARCH 04, 2014 rs/as/AK