Delhi High Court
Baljeet Singh & Anr. vs State on 26 September, 2014
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: September 26.09.2014
+ CRL.A. 386/2011
BALJEET SINGH & ANR. ..... Appellants
Through Mr.Vikas Pahwa, Sr. Advocate
with Mr. B. Badrinath, Advocate
versus
STATE ..... Respondent
Through Mr. M.N. Dudeja, APP for the
State with Insp./SHO Raj Kumar
& SI/IO Pradeep Kumar, PS
Nangloi
+ CRL.A. 486/2011
NIRMALA ..... Appellant
Through: Mr.N. Hariharan, Senior Advocate
with Mr.Varun Deswal,
Mr.Vaibhav Sharma, Advocates
versus
STATE OF DELHI ..... Respondent
Through Mr. M.N. Dudeja, APP for the
State with Insp./SHO Raj Kumar
& SI/IO Pradeep Kumar, PS
Nangloi
Mr. Ashok Drall, Advocate for
Complainant
Crl.A. No.386/2011, 486/2011, 487/2011 & 1080/2011 Page 1 of 201
+ CRL.A. 487/2011
RAJESH & ANR. ..... Appellants
Through Mr. Anupam S. Sharma, Advocate
versus
STATE OF DELHI ..... Respondent
Through Mr. M.N. Dudeja, APP for the
State with Insp./SHO Raj Kumar
& SI/IO Pradeep Kumar, PS
Nangloi
Mr. Ashok Drall, Advocate for
Complainant
+ CRL.A. 1080/2011
PUSHPA DEVI ..... Appellant
Through Mr. Ashok Drall, Advocate
versus
RAJESH KUMAR ETC ..... Respondent
Through Mr. Anupam S. Sharma, Adv. for
R-1 and R-2
Mr. M.N. Dudeja, APP for the
State with Insp./SHO Raj Kumar
& SI/IO Pradeep Kumar, PS
Nangloi.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE SUNITA GUPTA
JUDGMENT
KAILASH GAMBHIR, J
1. Tum meri beti nahi beta ho(You are not my daughter but my son),
a statement often heard by way of giving a compliment to a daughter who
has made her parents proud, but look closely and you will find that this
ironic statement is nothing but a reinforcement of every stereotype that
women have fought against till date. The so called compliment shrouds
the deep rooted prejudice that daughter is a liability and a son an asset
and only a male child can do his parents proud, it does nothing but
perpetuate the gender discrimination which we had started to believe does
not exist anymore.
2. It is an open secret that the want of a male child is a one the biggest
manifestations of gender discrimination that pervades all sections of the
society, whether urban, rural literate, illiterate, rich or poor. It is
understandable that in the past, societal conditioning for wanting to have
a male child in a time where women were treated as a second class citizen
having a deplorable quality of life was the norm of the day, but it is a
disheartening fact that what was treated as an obsession in the bygone era
still exists and does not only thrive but drives people to go to
unimaginable lengths, the case at hand being a prime example.
3. What monstrosity of a desire would have imbued through the mind
of the woman that she was compelled to murder her own daughter -in-
law for being unable to give a male heir to the family is unfathomable to
this court. Domestic violence, frequent abortions, physical and mental
abuse, psychological pressure, all is to be endured like a penance for the
sin for failing to birth a male child. What is the reason for this insatiable
urge to have a male child? The reasons commonly postulated which
come to mind are that the son is the bread winner of the family, the one to
perpetuate the lineage of the family, caste or clan or he is the one to give
light to the funeral pyre of the parents, but are not all mere hollow beliefs
having no real consequences today. The women of this country have
fought a long dogged battle to fadeout the gender divide, to break social
mores and to overcome social barriers that were regarded as their so
called limitations to make a mark in this world, but when viewed from the
prism of the reality of the cases like the present one, it all seems to be a
mirage. The aim with which progressive legislations such as the PNDT
are passed every now to curb such social evils becomes toothless in the
face of such ghastly acts. It is a scientific fact that the male chromosome
is responsible for determining the sex of the child, why is then such
savagery reserved for the women who have been granted the privilege to
procreate and to continue the human race.
4. By this common judgment we propose to decide the four appeals.
The challenge in all these appeals filed under section 374 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'), is to the
judgment dated 31/01/2011 and order on sentence dated 10/02/2011
passed by the learned Trial Court.
5. Criminal Appeal No.486/2011 has been preferred by the Appellant -
Nirmala, mother in law of the deceased and Criminal Appeal No.
386/2011 has been preferred by the Appellants - Baljeet and Sanjeet, the
father-in-law and the husband of the deceased respectively. All these
appellants have challenged their conviction for commission of offence
punishable under Section 302/120-B/34 of Indian Penal Code, 1860
(hereinafter referred to as 'IPC') for which vide order dated 10/02/2011,
they were sentenced to imprisonment for life with a fine of Rs.10, 000
each and in default of payment of fine, to undergo simple imprisonment
for a period of three months for offence punishable under Section
302/120-B/34 of IPC. Whilst for the offence punishable under Section
498A/34 of IPC, they were ordered to undergo rigorous imprisonment for
a period of six months with fine of Rs.10, 000/- each and in default of
payment of fine, to further undergo simple imprisonment for a period of
three months.
6. Criminal Appeal No. 487/2011 has been separately preferred by
Rajesh and Meena, brother in law (jija) and sister in law (Nanad)
respectively, challenging the order of conviction for the offence
punishable under Section 498A/34 of IPC and order on sentence whereby
they have been sentenced to undergo rigorous imprisonment for a period
of six months and to pay a fine of Rs.10,000/- each and in default of
payment of fine, to further undergo simple imprisonment for a further
period of three months.
7. Another Criminal Appeal No. 1080/2011 has been preferred by Smt.
Pushpa Devi, mother of the deceased to seek conviction of Rajesh and
Meena for the offence punishable under Section 302/120-B of IPC at par
with the other co-accused persons, and set aside the impugned judgment
and order on sentence dated 31/01/2011 and 10/02/2011 respectively
which in regard to these two accused persons is inadequate.
8. The facts germane to the case of the prosecution are that -
"PW-16, SI Pardeep Kumar on receipt of DD no.
34A dt. 29.10.2008, reached the house of Baljeet
Singh at village Bakkarwala, with PW-11, Ct. Ved
Prakash. There they found a dead body lying in a
pool of blood in a room. The head of the deceased
was towards South-East and legs were towards
North-West. The throat of the deceased was slit
and there were numerous stab wounds on the body
of the deceased. One knife, with a twisted blade
covered with a cloth was lying on the dining table.
Another knife lay near the left hand of the
deceased which was covered with a chunni. The
parents of the deceased were called after the
inspection of the dead body, statement of Satyawan
(PW-6), father of the deceased was recorded. The
same was handed over to Ct. Ved Prakash for
registration of FIR. The dog squad, crime team and
senior officers were informed. Meanwhile,
Additional SHO Insp. Prakash Chand reached and
inspected the spot. Blood samples were obtained
from the spot in his presence and taken into
possession vide seizure memo Ex.PW6/K. Charges
were framed against the accused persons under
sections 302/ 498A/ 120B IPC, to which the
accused persons pleaded not guilty and contested
the charges.
In order to bring home the culpability of the
accused persons, the prosecution examined as
many as 20 witnesses. After the conclusion of
prosecution evidence, statements of the accused
persons were recorded under Section 313 of
Cr.P.C. They were confronted with the entire
incriminating evidence produced against them and
in response thereto, all the accused persons denied
their involvement in the criminal case and pleaded
not guilty.
9. In response to the questions put to them for stating anything
voluntarily, the appellants- Nirmala, Baljeet and Sanjeet took a defence
that on 29th October 2008, Sikander, brother of Nirmala had come to her
house to take her to his house in order to celebrate bhai dooj on the 30th
October 2008 and Nirmala alongwith Poorvi, went to his house at
Sarangpur, Najafgarh, Delhi. They further stated that Anju (deceased)
was left alone in the house as Baljeet and Sanjeet had also gone to their
respective work places. Nirmala was supposed to return back on 30th
October 2008 in the morning so that Anju could also go to her
parental house for celebrating Bhai dooj. It was further stated that in
the evening, Nirmala's brother had received information regarding some
incident having taken place at Nirmala's house and consequently Nirmala
and her brother rushed to her house and as soon as they reached, she
found that the police was present there. Baljeet and Sanjeet also came
straight away and they saw the dead body of Anju lying in a pool of
blood inside the house. Immediately thereafter, Satyawan PW-6 and his
wife PW-1 also reached Anju's house and started abusing and assaulting
Baljeet. The police took control of the situation and took Nirmala and
Poorvi alongwith Baljeet, Sanjeet and Satyawan to the Police Station
where they were made to wait. Poorvi was crying because of hunger, so
the police took Poorvi from Nirmala and later on, all were erroneously
implicated in the present case at the whims and caprices of the police.
They also stated that all through the night they were made to sit in the
police station. Baljeet and Sanjeet also spoke about the presence of a lot
of people who were found standing there. The defence had also examined
five witnesses in order to prove their innocence.
10. On behalf of the appellant - Nirmala, arguments were addressed by
Mr. Hariharan, Senior Advocate, duly assisted by Mr. Varun Deswal and
Mr. Vaibhav Sharma, on behalf of Baljeet Singh and Sanjeet; the
arguments were addressed by Mr.Vikas Pahwa, Senior Advocate, duly
assisted by Mr. B.Badrinath. Appellants - Rajesh and Meena were
represented through Mr. Anupam S. Sharma and the appellant -
Ms.Pushpa Devi was represented by Mr. Ashok Drall, Advocate. The
State was represented by Mr. M.N. Dudeja, learned Additional Public
Prosecutor. Besides oral arguments, written submissions were also filed
by the respective counsels along with the supporting judgements.
11. Mr.Hariharan, Senior Advocate, representing the appellant -
Nirmala, mother in law of the deceased, at the outset submitted that the
entire genesis of the incident flows from a telephonic call made by one
person with the name of Rajbir to PCR at 6.30 p.m. and the police had
reached at the spot pursuant to the said report lodged by Rajbir. Learned
Senior Counsel further submitted that as per the PCR Form, local police
had reached at the spot at 23:3:20 on 29th October 2008 and the PCR Van
was relieved from the spot at 23:4:18. Learned counsel further submitted
that as per the endorsement made by SI Pradeep Kumar, the rukka was
sent to the local police station at 8.30 p.m. and information was received
by the police at 9 p.m., which is totally at odds with the time indicated in
the PCR Form regarding the arrival of the police at the spot. Learned
senior counsel also submitted that the police had registered the FIR on
30th October 2008 instead of registering it on the same day after receiving
the rukka statement at 9.00 p.m.
12. The main contention of the learned senior counsel for the appellant
- Nirmala, was that for incomprehensible reasons, the prosecution had
neither proved the said PCR Form, nor did they examine any of the
witnesses whose names formed a part of the PCR Form, i.e., Rajbir, the
person who made the PCR Call, woman constable Sangeeta, who
recorded the PCR Call, Suresh, whose name was mentioned against the
column - local police informed, HC Ajay Sharma, who transmitted the
message, or Mushahid Anwar whose mobile number as well as residence
address was recorded in the form. Learned senior counsel further
submitted that Rajbir was the most vital and decisive witness to unfurl the
circumstances leading to the murder of the deceased Anju and his non-
examination should be taken as lethal to the case of the prosecution.
Learned senior counsel further contended that the PCR Form though not
proved by the prosecution was relied upon by them in the charge sheet
and therefore, the same can be read in favour of the accused but not
against her. In support of the foregoing contentions, learned senior
counsel had placed reliance on the judgement of the Hon'ble Supreme
Court in the case of Vrijlal Ghosi & anr. Vs. State of M.P., reported in
ILR [2012] MP 1351 and the judgment of this Court, passed in the case
of Johnson vs. State, 2012 III AD (Delhi) 154.
13. The next submission on which much stress was laid by the learned
senior counsel was with regard to the alleged presence of Baby Poorvi
(PW-10), at the time of the incident. The age of the child was two and a
half years at the time of the incident and she was of the age of three years
and nine months at the time of her examination in Court and as per the
prosecution she was an eye witness of the crime. Her statement was
recorded by the police on 30th October 2008 at the residence of Narayan
Singh, brother of the accused Baljeet, who was residing near his house.
How and why the presence of Poorvi (PW-10) at the scene of the crime
is doubtful and her testimony should be discarded being a tutored witness
can be outlined in terms of the following contentions raised by the
learned senior counsel:-
a) Satyawan (PW-6), Ms. Pushpa (PW-1), SI Pradeep
(PW-16), Constable Ved Prakash and IO Prakash
Chand (PW-19) , had all reached at the spot but none
of these persons made any attempt to inquire about
the said child or where she had gone;
b) The conduct of the parents of the deceased is highly
inconceivable and implausible for not tracing their
granddaughter after having found their daughter
murdered in her matrimonial home;
c) Satyawan (PW-6) does not even make a whisper in his
first statement based on which the FIR was recorded
about the presence of Poorvi at the spot, nor even in
his subsequent complaint dated 3.11.2008 addressed
to SHO or even in his statement recorded by the
learned SDM;
d) The IO did not record the statement of Narayan Singh,
brother of accused - Baljeet at whose house Poorvi
was found, when the IO went in search of the accused
persons.
e) The prosecution failed to examine Constable Balbir
Singh, ASI Suresh and Constable Satpal, who had
accompanied the IO to the residence of Narayan
Singh.
f) SI Savita (PW-14) did not even make a mention about
the recording of statement of Poorvi in her presence
when examined in Court.
g) Introduction of Poorvi as an eye witness - after a
suggestion was put by the Senior Prosecutor to
introduce some eye witness to prove the case of the
prosecution, as admitted by the IO in his cross-
examination.
h) The presence of Poorvi as an eye witness was not
disclosed even in the reply filed by the State in the
anticipatory bail application of the accused - Rajesh.
i) In the charge sheet filed by the police, Poorvi's name
was absent.
j) Poorvi's name does not find mention in the Court
deposition of PW-1 and PW-6 and even in the
statement of police witnesses.
14. Learned senior counsel for the appellant - Nirmala also contended
that Poorvi (PW-10) was two and half years old at the time of
commission of the crime and was three years and nine months old when
she was examined in Court and therefore, one cannot discard the
possibility of her maternal grandparents with whom she was staying
during this period for having tutored or prompted the child to depose
against the accused persons. Learned senior counsel further contended
that her tutoring could be manifested from the fact that she blurted the
words 'meena ne pakra, dadi ne mara' in reply to even formal questions
that were put to her regarding her dress or bag. Learned Senior Counsel
invited the attention to question No.11 and question No.14 in this regard.
In reply to question No.14, asking her to let know as to who else was
residing at her house, she only disclosed the name of Rajesh (brother in
law - phupha), Meena (Bua), Dadi (Nirmala) and herself, but failed to
disclose the names of her father and grandfather. In reply to question
No.40, she admitted the fact that her maternal grandmother had narrated
the story about a 'buria' (old lady) and 'dusri aurat' (another woman) and
in that story, she was also told that when 'Buri aurat' had beaten the other
woman, then blood oozed out. Attention of this Court was also invited to
the question No.41, 42 and 46 put to PW-10 in cross-examination.
15. Learned senior counsel further submitted that cross-examination of
PW-10 was deferred on 9th March 2010 due to electricity failure and on
the adjourned date, she flatly refused with reference to any story being
told to her by her maternal grandmother. Learned senior counsel also
submitted that PW-10 had admitted in her cross-examination that she had
met the police person at the house of her mother Anju on Tuesday in
response to question no.11, while in response to question No.15, she
admitted that her maternal grandmother was present when she met the
police. Learned senior counsel for the appellant also contended that PW-
10 had also admitted the fact that she had gone to the house of her
maternal grandmother after her mother Anju was shifted to the hospital.
Learned senior counsel for the appellant further submitted that this
admission on the part of PW-10 clearly shows that she was not present at
the house of Narayan Singh on 30th October 2008, as per the case set up
by the prosecution since she was taken by her maternal grandmother to
her house. Learned Senior Counsel also invited attention of this Court to
question No.28, asking her to inform as to whether she was told by her
maternal grandmother to tell something before the Court and her response
was in the affirmative and confirmatory. Learned senior counsel also
submitted that PW-10 nowhere in her examination-in-chief stated that her
statement was recorded by the police at the residence of Narayan Singh.
Learned senior counsel for the appellant also submitted that the custody
of Poorvi (PW-10) was with her maternal grand-parents since the date of
the incident i.e. 29th October 2008, and the same could be gathered from
the scrutiny of order dated 4th March 2010 passed by Ms. Nivedita
Anil Sharma, Additional Sessions Judge, wherein the contention raised
by Advocate Mr. Drall that the child Poorvi was living with her maternal
grand-mother since the date of the incident i.e. 29th October 2008 was
recorded.
16. Learned senior counsel for the appellant thus submitted that it
would be totally perilous to rely on the testimony of such a tutored child
witness who was just two and half years on the date of the incident.
Further to buttress his arguments, learned senior counsel placed reliance
on the judgments of the Hon'ble Apex Court in the case of State of
Assam vs. Mafizuddin Ahmed reported in (1983) 2 SCC 14 and a
decision of this Court in Crl. Appeal No.600/2009, titled as Babu Lal vs.
State (Govt. Of NCT of Delhi), decided on 9th March 2010.
17. The next contention raised by learned senior counsel was with
regards to the discrepancy in the case of the prosecution with regard to
the arrest of the accused persons. Referring to the deposition of Pushpa
(PW-1), learned counsel submitted that she pointed out the presence of
all the accused persons at the spot of crime, yet she did not insist the
police to arrest the accused persons. Similarly, SI Pradeep (PW-16) also
saw the accused persons after he had reached the spot still he did not
arrest them at that moment, although Satyawan (PW-6) clearly indicted
and arraigned Nirmala, Baljeet and Sanjeet for having murdered his
daughter in his very first statement. Further the contention raised by
learned senior counsel for the appellant was that the non- arrest of the
accused persons, who were accessible to the police right from the
morning of 29th October 2008, is an imperative fact to show their
virtuousness and that they were unlawfully arrested on the following day
i.e. 30th October 2008. In support of his submission, learned senior
counsel for the appellant placed reliance on the judgment of this Court in
State of NCT vs. Taj Mohd., 2013(4)JCC2457.
18. Learned senior counsel further argued that IO- Prakash Chand
(PW-19) does not refer to the presence of the accused persons on 29 th
October 2008, while SI Savita (PW-14) gave a different version with
regard to the arrest of the accused persons. Referring to the deposition of
PW-14, learned senior counsel pointed out that as per her deposition, she
had received a secret information that these accused persons were present
at the residence of Narayan Singh at Bakarwala, where she arrived at
alongwith the raiding party and arrested these accused persons. Learned
senior counsel thus submitted that these diverse stories with regard to the
accused persons create enough suspicion about the case of the
prosecution.
19. Next contention raised by learned senior counsel was with regard
to the supposed disclosure statement made by the accused persons and
the recovery done during such disclosure and an assortment of
articles seized by the police from the spot of crime. Referring to the
deposition of SI Pradeep(PW-16), who in his cross-examination admitted
that he had conducted the house search, but it was an admitted fact that
the SI did not follow the mandate of Section 100(4) of the Cr. P.C. before
making a search of the house, where the crime had taken place. Learned
senior counsel further submitted that zilch efforts were made by the
Investigating Officer to ensure the presence of two independent and
respectable members of the locality and instead got search witnessed by
SI Pradeep and PW-6 - Satyawan. Learned senior counsel thus submitted
that the articles on the spot of the crime were seized without following
the mandate of Section 100(4) of Cr. P.C. hence the seizure stands
vitiated. In support of his argument, learned senior counsel for the
appellant placed reliance on the judgment of this Court in the case of
Jaivir Singh vs. State, reported in 1995 (57) DLT 479 (DB).
20. Learned senior counsel further pointed out that at the time of
recording the disclosure statement of the appellant - Nirmala and
recovery of certain incriminating articles during her disclosure is equally
doubtful as the prosecution failed to join any independent witness.
Learned senior counsel for the appellant thus submitted that in the
absence of joining of any independent witness to the alleged recoveries
during the disclosure of appellant - Nirmala, the recovery of one gold
chain, of Rs.50,000/-, one blood stained suit becomes doubtful and cannot
be stated to have effected at the instance of Nirmala. Learned senior
counsel also submitted that the prosecution had taken the help of three
police witnesses i.e. SI Savita, Constable Balbir, ASI Suresh Kumar for
the alleged recoveries during the disclosure statement of the appellant and
the prosecution failed to examine Constable Balbir Singh and ASI Suresh
Kumar, while SI Savita contradicted the testimony of the Investigating
Officer by denying her visit at the spot on 29th October 2008 or even on
30th October 2008. Learned Senior Counsel further submitted that SI
Savita was erroneously examined by the prosecution in relation to the
recovery of the said articles and the stand taken by her in Court
deposition renders such recoveries totally dubious and uncertain. Learned
senior counsel for the appellant also submitted that the said recoveries
were further improbable because of the fact that SI Pradeep (PW-16)
conducted a thorough and meticulous search of the house in question on
29th October 2008, when he had recovered a blood stained towel and
some passbooks from the cupboard cum worship room which was
adjacent to the room where the murder had taken place but could not find
blood stained suit, gold chain and Rs.50,000/-, although the same were
also found in the same room, as per the disclosure statement of the
appellant - Nirmala. To support his arguments, learned Senior counsel
placed reliance on the judgment of Apex Court in State of Tamil Nadu
vs. Sundar, reported in (2003) 12 SCC 695. Learned senior counsel for
the appellant also cited judgment of this Court in Satish Kumar vs. State,
reported in 1996 Cri.L.J 265 to support his argument that the police did
not make any efforts to join any independent witnesses before recording
of the disclosure statement as an important circumstance to disbelieve
such recoveries.
21. Learned Senior Counsel also submitted that the recovery of
Rs.50,000/- and the gold chain at the instance of the appellant - Nirmala
cannot be said to be an incriminating circumstance as the same does not
connect the appellant with the commission of the crime in any manner.
On the alleged seizure of bangles, during the arrest of the appellant,
which was found to be tallied with the broken bangles seized from the
spot, learned Senior Counsel submitted that they were ordinary bangles
and could be easily procured from any shop. Learned senior counsel
throwing a doubt on the recovery of bangles, submitted that, two lines
with regard to such recoveries of bangles were interspersed later in the
disclosure statement of appellant - Nirmala by the police. Inviting
attention of this Court to the disclosure statement of Nirmala, learned
senior counsel pointed out that the insertion of these two lines can be
visibly seen as the spacing between the preceding lines of disclosure
statement and these two lines were different. To support his argument,
learned senior counsel placed reliance on the judgment of this Court in
the case of Jaivir Singh (supra).
22. Learned senior counsel further pointed out total inconsistency in
the alleged recovery of Rs.50,000/-, gold chain and blood stained suit
during the alleged disclosure of appellant - Nirmala and the recovery of
these articles as recorded in the recovery memo (Ex.PW-14/D). The
contention raised by learned senior counsel was that in the disclosure
statement, the appellant stated that from the place where the murder took
place, she went to another room where she wiped off her blood stained
hands with a towel and also took off her blood stained suit and kept it in
the corner of the said room, whereafter, she displaced the books lying in
the said room; opened the cupboard and displaced its contents , to give
the incident a colour of dacoity, hid Rs.50,000/- and one chain of the
deceased in a box. This submission in her disclosure shows that she had
hidden Rs.50, 000/-, chain and blood stained suit in the room where there
was a cupboard but in the recovery memo, in relation to these articles, it
was stated that Rs.50, 000/-, gold chain and blood stained suit were
recovered from the same room which was different from that of the one
having a cupboard. As per learned senior counsel, it was quite evident
that as per the disclosure statement, she had hidden Rs.50, 000/-, gold
chain, suit in the cupboard room while as per the recovery memo, they
were recovered from the same room and not from the room where a
cupboard was kept. Learned senior counsel thus submitted that such an
contortion clearly exposes the prosecution of planting such recoveries so
as to falsely implicate the appellant.
23. Learned senior counsel for the appellant also submitted that as per
Section 27 of the Indian Evidence Act, 1872 only that part of the
information disclosed by the accused is admissible which distinctly,
indubitably and unambiguously relates to the facts discovered. In the
disclosure made by the appellant, the highlights are: that the appellant
was present in the house on 29.10.08; the appellant's hands got blood
stained during the incident; she wiped them with a towel; she was
wearing a suit which belonged to her; the suit also got blood stained; she
had put off the suit; she opened the cupboard and displaced certain items
to give the incident a colour of dacoity are inadmissible as no new fact
was discovered in consequence thereof. Only a few admissible statements
are that she had put the suit in the corner of the room and that she hid
Rs.50,000/- and Anju's chain in a box, only these two statements clearly
and distinctly relate to the fact discovered i.e. the said articles were
hidden in the room as per the knowledge of the appellant. The
circumstances that at the time of the incident the appellant was present in
the house; she was wearing a suit which got blood stained; the blood
belonged to the deceased and not the appellant had to be separately
proved by the prosecution, which it has miserably failed to. In support of
his argument, learned senior counsel for the appellant placed reliance on
the judgment of the Hon'ble Apex Court in the case of Shankarlal
Gyarasilal Dixit vs. State of Maharashtra reported in (1981) 2 SCC 35
and in the case of Prabhu vs. State of UP reported in AIR 1963 SC 1113.
Learned senior counsel also argued that it is highly improbable that the
appellant while making good her escape from the house after committing
the murder, would place her blood stained suit in a corner of the room,
where it would be visible to everybody who enters the room. Learned
senior counsel also submitted that if the recovery of bloodstained suit is
itself doubtful, then the report of CFSL in relation to the blood being
found on the suit is of no consequence. Learned senior counsel also
submitted that it was for the prosecution to have subsequently proved that
the blood stained suit recovered in consequence of the disclosure of the
appellant belonged to her and that the blood found on the suit was of the
deceased and not of the appellant. To support this argument, learned
senior counsel for the appellant placed reliance on the decision of the
Apex Court in the case of Shankarlal Gyarasilal Dixit vs. state of
Maharashtra reported in (1981) 2 SCC 35, Deepak vs. State, reported in
2011 VII AD (Delhi) 188, Subhash Chand vs. State of Rajashthan
reported in (2002) 1 SCC 702, CBI vs. Gurpal Singh, reported in 124
(2005) DLT 282.
24. Learned senior counsel for the appellant also raised a contention
that the rough site plan prepared by the Investigating Officer, on 30th
October 2008, nowhere records the presence of bloodstained towel,
chappals allegedly belonging to Poorvi, broken bangles, scattered
passbooks, water filter, bloodstained table cloth, although these articles
were alleged to have been recovered on the same date. Learned senior
counsel for the appellant also submitted that even the scaled site plan
which was prepared on 13th November, 2008 does not record the presence
of Rs.50,000/-, a gold chain, bloodstained suit and even the box wherein
these articles were allegedly kept. Learned senior counsel for the
appellant further submitted that a bare perusal of the site plan would show
that the only room which was open was the room where the murder had
taken place whereas the cupboard cum worship room and all other rooms
were shown as locked. Learned senior counsel for the appellant thus
submitted that these facts further toss a doubt on the alleged recoveries
made by the police during the course of investigation.
25. Learned senior counsel for the appellant further submitted that
there are different versions in relation to the Investigating Officer handing
over the seal after the alleged recoveries were affected on the spot. As per
the deposition of Investigating Officer (PW-19) the seal was handed over
by him to SI Pradeep on 29th October 2008 but SI Pradeep nowhere refers
to the same in his deposition. Similarly, there is no evidence on record as
to when the Investigating Officer took back the seal from SI Pradeep after
he had effected the recoveries on 30th October 2008. Learned senior
counsel further submitted that these circumstances render the recoveries
made on 30th October 2008 as inconspicuous and ambivalent.
26. Ld. Senior Counsel further argued that the alleged visit of PW12
Amit, brother of the deceased and PW-5 Harender nephew of PW-6,
Satyavan on 26.10.08 to the house of the deceased is also unpersuasive
and doubtful. Counsel further submitted that PW-6 Satyavan did not even
make a whisper about such an important circumstance either in his first
statement, which was recorded on 29.10.08 or his two subsequent
statements given to the police and the SDM respectively and
correspondingly PW1 Pushpa also did not disclose about such visits of
PW12 and PW5 in her statement dated 3.11.08 recorded by the SDM.
Counsel further argued that both these witnesses were very much
available all along but yet their statements were recorded as late as on
15.1.2009 with a view to strengthen the case of the prosecution against
the accused persons. Counsel also referred to the cross-examination of
PW19 wherein he admitted the fact that the statements of witnesses were
recorded after the objection to that effect was raised by the prosecution on
15.1.2009. Counsel also referred to the cross examination of PW-5
wherein he admitted that he met the police for the first time in the
mortuary on 30th October, 2008 nevertheless he by no means came
forward to insist for the recording of his statement. Counsel also
submitted that he did not tell anybody at the mortuary or even to the SDM
about the alleged torture meted out to his sister. Counsel also submitted
that PW-5 further deposed that after having returned from the house of
the deceased on 26.10.2008, he told everything that happened there at the
house of the deceased to his uncle PW-6; even then PW-6 neither make
any call to the deceased's in-laws nor did he take any action. Counsel
further argued that the conduct of PW-12 is no way different than the
conduct of PW-5 as he also never came forward to give the statement till
it was recorded on 15th January, 2009. Counsel also submitted that PW-5,
PW-6 and PW-19 in their depositions affirmed the presence of PW-12 in
the mortuary on 13.12.2008 and yet they did not avail the opportunity to
disclose about the visit to the house of the deceased on 26.10.2008.
Counsel also drew attention of this Court to the deposition of PW-12
where he referred to the cordial relationship between husband and wife
during their stay at London and also when she had visited their house at
Dwarka. Contention raised by the counsel for the appellant was that had
there been any harassment caused to the deceased on account of the
alleged demand of Rs. 10 lakhs or for her inability to beget a child even
then the relationship between the husband and wife would not have been
genial. Counsel thus submitted that the two witnesses PW-5 and PW-12
were not ingenuous witnesses rather they were planted by the prosecution
with a view to foster the case of the prosecution against the accused
persons.
27. The last contention raised by the counsel for the appellant was that
the finger prints were lifted by the police from the water filter found
installed at the spot but as per the Finger Prints report, the same were not
found to be linked to any of the accused persons. Counsel thus submitted
that the presence of such finger prints which were not that of the accused
persons clearly indicates towards the presence of unfamiliar persons in
the house than the accused persons to have murdered Anju, the deceased
herein. Counsel also argued that the prosecution had failed to take finger
prints from the two knives, scattered pass books, cupboard or the
box wherein Rs. 50,000/- and gold chain were kept so as to rule out the
possibility of robbery and affirm the presence of the accused persons at
the spot. Counsel also argued that even no call records of the accused
persons' mobile phones were collected, which could have shown the
location of the accused persons at the relevant time. At the end the
counsel for the appellant submitted that the deposition of PW-10 Poorvi
cannot be believed on account of various reasons already canvassed by
him and minus her statement, the case of the prosecution becomes that of
a circumstantial evidence and as far as circumstantial evidence is
concerned, the prosecution failed to complete the chain of incriminating
circumstances, which could unerringly prove the guilt on the part of the
appellant.
28. In the light of these submissions counsel for the appellant also
relied upon judgment of High Court of Madhya Pradesh in Buddhu Pal
and Anr. vs. State of M.P., 2013 CriLJ 1693 and strongly urged for the
acquittal of the appellant- Nirmala.
29. Mr. Vikas Pahwa, learned Senior Advocate, representing the
appellants Baljeet (father-in-law of the deceased) and - Sanjeet (husband
of the deceased) reiterating the aforesaid contentions, also elucidated that
the prosecution has miserably failed to prove the charges framed under
Section 498A/302/120-B/34 of IPC beyond reasonable doubt but still the
learned trial Court has convicted them under these offences. Learned
senior counsel submitted that the prosecution has failed to prove the
presence of these accused persons at the spot at the time of the alleged
incident and the only direct evidence is that of the baby girl - Poorvi
(PW-10) which is totally unreliable, conniving and untrustworthy as she
was just two and half years of age at the time of the incident and was not
competent enough to give the true and correct narration of the alleged
incident. Learned senior counsel further submitted that PW-2 prima facie
pointed out that there were two accused persons present at the spot and
only one weapon but the prosecution has recovered two blood stained
weapons of offence. Learned senior counsel also pointed out that the
learned trial Court has failed to appreciate that PW-6 and PW-1 were
interested witnesses while PW-5, PW-12 were planted witnesses, who
were introduced belatedly after a gap of two and half months so as to
falsely implicate all the family members of the appellants. Learned senior
counsel for the appellant further submitted that no matter how diabolical
the crime is, the burden always remains on the prosecution to prove the
guilt of the accused and Courts have to be extra cautious not to get
influenced by emotions ignoring the evidence adduced on record. In
support of his contentions, counsel placed reliance on the following
judgments:-
a) State vs. Mahender Singh Dhaiya, (2011) 3
SCC 109
b) Mousam Singha Roy vs. State of West Bengal,
(2003) 12 SCC 377
c) Sarwan Singh Rattan Singh vs. State of
Punjab , 1957 Cri.LJ 1014
30. The next contention raised by learned counsel for the appellants
was that PW-6 has made glaring improvements in the statements recorded
on various dates and these statements do not inspire any confidence and
should be discarded on its face itself. Learned senior counsel also
submitted that the statement of PW-6 Satyawan Singh was recorded at the
first instance on 29th October 2008 which is restricted to very general type
of allegations levelled by him against the in-laws of his daughter but after
a gap of five days, he gave a supplementary statement wherein he made a
considerable improvement in his allegations and also falsely implicated
Meena (nanad) and Rajesh (brother-in-law of deceased). Similarly, the
statement was also made to the SDM after some gap i.e. on 3.11.2008.
Learned senior counsel further pointed out that PW-19 admitted in his
deposition that he met PW-6 Satyawan on 30.10.2008, 31.10.2008,
01.11.2008 and 2.11.2008, but he never told him about the involvement
of Rajesh and Meena in causing the unnatural death of the deceased.
Learned senior counsel for the appellant also pointed out that PW-6, in
his Court deposition attempted to improve his case by stating that, the
deceased was threatened to be killed by her in-laws because she was
unable to bear a child and they wanted their son Baljeet to get re-married.
PW-6 also deposed that this factum about the said threat was told to him
by his wife PW-1 Pushpa Rani, however PW-1 in her entire deposition
never made any such allegation. Learned senior counsel also pointed out
another material improvement in the deposition of PW-6, wherein PW-6
stated that Rs.10 lacs were demanded by the in-laws of the deceased for
the purpose of buying a big car although such demand does not find
mention in any of the statements made by either PW-6 or PW-1. Learned
senior counsel further argued that the Hon'ble Supreme Court in various
judgments has cautioned the Courts not to rely upon the evidence of the
interested witnesses who make apparent improvements in their testimony
with a motive to falsely implicate all the members of the family. In
support of his arguments, Learned senior counsel placed reliance on the
following judgments:-
a) State of Rajasthan vs. Rajendra Singh, (2009)
11 SCC 106
b) Mahender Singh vs. State, 1989 (Suppl.) 1
SCC 338
c) Jandel Singh vs. State of MP, (2003) 9 SCC
d) State vs. Sait Alias Krishnakumar, (2008) 15
SCC 440;
e) Mahender Pratap Singh vs. State of U.P.,
(2009) 11 SCC 334
f) Jalpat Rai vs. State of Haryana, (2011) 14
SCC 208.
31. Contention raised by learned senior counsel was that PW-1 Pushpa
Devi was belatedly introduced by the prosecution after five days of the
incident when her statement for the first time was recorded by the SDM
on 3.11.2008 even though she had reached at the spot of crime on the
same evening and thus her testimony should be discarded solely. Learned
senior counsel also argued that no evidence was adduced by PW-1 to
demonstrate that she frequently visited her daughter so as to re-concile
the matter with the in-laws of her daughter and similarly no records of
telephonic calls were produced by the prosecution to prove frequent
communication between her and her daughter. In support of this
argument, learned senior counsel placed reliance on the judgment of
Hon'ble Supreme Court in the case of Gayadin vs. State of M.P., (2005)
12 SCC 267.
32. Learned senior counsel further with regard to the introduction of
PW-10 Poorvi as an eye witness contended that PW-10, Poorvi was never
present at the time of commission of the crime and she was deliberately
introduced by the Investigating Officer after the prosecution had given a
recommendation to introduce the eye witness to strengthen the case of the
prosecution. Learned senior counsel also submitted that the prosecution
went to the extent of manipulating the records by recording her statement
under Section 161 of Cr.P.C. from back date i.e. on 30.10.2008. Learned
senior counsel for the appellants also argued that it is because of this
manipulation, the statement of PW-10 which was never recorded by the
Investigating Officer before the Magistrate under Section 164 Cr.PC, was
later shown to have been recorded. Learned senior counsel for the
appellant also pointed out that PW-1 and PW-6 in their statements made
to the police and the SDM never disclosed about the presence of PW-10
Poorvi at the time of commission of the alleged offence. Learned senior
counsel also reiterated some of the contentions already canvassed by Mr.
Hariharan, learned senior counsel for the appellant - Nirmala as regards
to the deposition of child witness PW-10 and as to how she was amenable
to tutoring. In support of his arguments, learned senior counsel for the
appellants placed reliance on the following judgments:-
1. K. Venkateshwarlu vs. State of A.P., (2012) 8
SCC 73
2. State of Assam vs. Mafizuddin, (1983) 2SCC
3. Bhagwan Singh vs. State of M.P., (2003) 3
SCC 21
4. Chhagan Dame vs. State of Gujarat, 1995 SCC
(Crl) 182
5. Golla Yelugu Gobindu vs. State, (2008) 16
SCC 769
33. The next contention raised by learned senior counsel was with
regard to the conduct of the prosecution in introducing PW-5-Mr.
Harender Singh, PW-12 - Amit after a gap of two and half months so as
to falsely give rise to the incident on 26.10.2008 and provide strength to
the prosecution story of alleged dowry harassment and alleged threats
extended to the deceased - Anju by the in-laws for having not been able
to bear a child any more. Contention raised by learned senior counsel was
that these two witnesses have not paid any visits to the house of Anju on
26.10.2008 on the evening of Diwali, as is evident from the fact that all
the statements of the witnesses which were recorded prior to 15.1.2009
failed to mention of any such visit made by PW-5 and PW-12. Learned
senior counsel further submitted that it is highly unbelievable that the
blood relations of the deceased who were present at the spot and took part
in the investigation would not disclose about the incident of 26.10.2008
to the parents of the deceased and to the concerned police officers prior to
15.1.2009. Learned senior counsel thus submitted that no reliance can be
placed on the testimony of such planted witnesses. In support of his
arguments, learned senior counsel for the appellants placed reliance on
the following judgments:-
a) Paramjit Singh vs. State of Punjab, (1997) 4
SCC 156
b) Jagjit Singh vs. State of Punjab, (2005) 3 SCC
689;
c) Maruti Rama Naik vs. State, (2003) 10 SCC
d) Harjinder Singh vs. State of Punjab, (2004) 11
SCC 253
e) Prem Narayan & Anr. Vs. State of M.P.,
(2007) 15 SCC 485.
34. Learned senior counsel also argued that no recoveries have been
made from the appellants to connect them with the commission of the
crime and their disclosure statements are inadmissible in law. Learned
senior counsel further argued that finger prints of appellants were taken
during the investigation but these prints lifted from the spot did not match
with that of the appellants or any other accused persons. Learned senior
counsel for the appellants also argued that there is no direct or indirect
evidence available on record to establish that the appellants conspired
with each other to commit the offence of murder of deceased Smt. Anju,
yet the learned trial Court has assumed such conduct of the accused
persons and convicted them for hatching a criminal conspiracy for
committing the murder of the deceased Anju. Learned senior counsel for
the appellant also argued that the prosecution has failed to prove any
motive on the part of the appellants in order to commit the murder of the
deceased. Learned senior counsel for the appellants further submitted that
it was brought on record by the appellants that the deceased Smt. Anju
monitored the primary school of the accused and was financially sound.
She was also filing her income tax returns which were duly proved on
record through the evidence of DW-5-Naresh Kumar Mahajan. And the
defence has also proved the bank statement of Sanjeet and deceased
showing numerous transactions running into lacs of rupees. Defence has
also brought on record the FDRs in the name of deceased and also the
immovable properties worth crores of rupees.
35. Learned senior counsel contended that keeping in view such sound
financial standing of the appellants there could arise no occasion for
raising the alleged demand of Rs.10 lacs from the deceased or her
parents. Learned senior counsel also pointed out that PW-12 Amit in his
Court deposition categorically stated that the deceased was leading a
happy married life with her husband. Learned senior counsel also
submitted that no evidence was produced to show that the appellants had
ever tortured the deceased for money or for not being able to bear a child
any more. Learned senior counsel for the appellants also argued that even
if it is presumed that the prosecution has been able to prove the motive to
kill the deceased, still mere motive in the absence of any circumstantial
evidence would not be sufficient to convict the accused persons. In
support of his arguments, learned senior counsel placed reliance on the
judgments of Apex Court in the case of Sunil Rai vs. Union Territory,
Chandigarh, (2011) 12 SCC 258.
36. The last contention raised by learned senior counsel for the
appellant was that there was no evidence adduced by the prosecution to
prove common intention of the appellants to carry out the murder of the
deceased as required under Section 34 of the IPC. Learned senior counsel
also argued that it is a settled legal position that it is for the prosecution to
prove its case beyond any shadow of doubt and it is only after the
prosecution succeeds in proving its case, that the principles as envisaged
under Section 106 of Indian Evidence Act, 1872 can be considered in
order to judge the conduct of the accused persons. Learned senior counsel
further submitted that this will be against the well settled principles of
criminal jurisprudence to prove the guilt of the accused persons based on
the weakness of the defence or the failure of the defence to prove their
innocence. Based on the above submissions, Mr. Vikas Pahwa, learned
senior counsel for the appellant strongly urged for the acquittal of these
appellants as they have been falsely implicated by the prosecution at the
instance of the parents of the deceased and also relied on the following
judgments:-
a) Jayantibhai Bhenkarbhai vs. State of Gujarat, (2002)
8 SCC 165;
b) Nagaraja vs. State of Karnataka, (2008) 17 SCC 277;
c) Mohan Singh vs. State of Punjab, (1963) 1 Cri.LJ
100;
d) Aftab Ahmad Ansari vs. State of Uttaranchal, (2010)
2 SCC 583
e) Ram Lakhan Singh and Others vs. State of Uttar
Pradesh, (1977) 3 SCC 268
37. Addressing arguments on behalf of appellants - Rajesh and
Meena, challenging their conviction for the offences punishable under
Section 498-A/34 of IPC, Mr. Anupam Sharma, Advocate, representing
them argued that there was an inordinate delay in registration of the FIR
and no explanation has been given by the police witnesses to explain the
delay. Learned counsel further reiterated that as per the endorsement on
the rukka (Ex.PW-16/A), FIR was registered at 9.00 pm on 29th October
2008 vide corresponding DD No.38A but neither was such DD placed on
record nor exhibited. Learned counsel for the appellants further submitted
that as per the FIR (Ex.PW-3/A), the case was registered on 30th October
2008 and not on 29th October 2008. Learned counsel for the appellants
also argued that as per the Crime Team Report, exhibited as Ex.PW-13/A,
inspection of the spot was conducted on 29th October 2008 between 8.15
pm to 9.00 pm and rukka was dispatched at 8.30 pm after recording the
statement of Complainant - Satyawan but in column No. (iv) of the said
report, the name of the Complainant has been mentioned as PCR.
Learned counsel thus submitted that at least, till 9 pm on 29th October
2008, the investigating agencies did not file the complaint of Satyawan
so; the version of the prosecution regarding sending of rukka at 8.30 pm
for registration of FIR and its registration at 9 pm on 29 th October 2008 is
false. The next contention raised by learned counsel for the appellants
was that admittedly both these appellants got married much prior to the
marriage of the deceased and were residing separately in Nangloi which
is 7 kilometres away from the matrimonial home of the deceased and
therefore, their presence at the matrimonial house of the deceased is
highly impractical. Learned counsel also submitted that both these
appellants were named in the FIR and there were no allegations levelled
by the Complainant against them. It was only on 3 rd November 2008,
after inordinate delay of five days, that for the first time, names of these
appellants were roped in. Learned counsel for the appellants also pointed
out that on 29th October 2008, PW-6 - father of the deceased was present
during the course of the investigation of the case at the spot and even his
supplementary statement was recorded on the same day but he never
named these appellants as the perpetrators of the crime. Learned counsel
for the appellants also submitted that even in the inquest proceedings,
which were conducted on 30th October 2008, no allegations were levelled
against these appellants at that time. Learned counsel for the appellants
also submitted that Inspector Prakash Chand (PW-19) investigating
officer of the case admitted that till 3rd November 2008, no allegations
were levelled by the Complainant or any person against these appellants
Learned counsel for the appellants also submitted that PW-5 Harinder in
his deposition had admitted that he met the SDM in the mortuary but
gave no explanation for not giving any statement to the police and it is
only after about two and a half months of the incident, statements of PW-
5 and PW-12 were recorded by the police under Section 161 Cr. P.C. on
15th January 2009. Learned counsel also pointed out that it was admitted
by PW-19 that supplementary statements of witnesses were recorded after
certain objections were raised by prosecution branch pointing out various
discrepancies in the investigation. Learned counsel thus submitted that
delay in recording the statement of PW-1, PW-5, PW-6, PW-10 and PW-
12 coupled with no previous complaint by these witnesses against these
very appellants amply proves that the case of the prosecution against
them lacks reliability.
38. The next contention raised by learned counsel for the appellants
was with regard to the various contradictions and omissions in the
versions of all the related and other witnesses produced by the
prosecution which apparently show that they were giving incorrect and
coloured versions. The other counsels have already raised similar
contentions impeaching the credibility of these witnesses who were
family members of the deceased and therefore, the same need not be
repeated here again. However, with regard to the alleged visit of PW-5
Harinder and PW-12 Amit Kumar at the matrimonial house on 26 th
October 2008 i.e. eve of Diwali, the counsel pointed out that both the
witnesses took a stand that they had informed the father of the deceased
about the said incident dated 26th October 2008 and PW-12 also deposed
that his father had a telephonic conversation with the accused on this
aspect but neither PW-6, nor PW-1 in their respective depositions made
any reference to any such telephonic conversation to have taken place in
their depositions and therefore, it is quite apparent that these two
witnesses PW-5 and PW-12 are planted witnesses in order to abridge the
lacunae in the prosecution case.
39. Learned counsel for the appellants also pointed out that with regard
to the alleged fact that the deceased had told these witnesses regarding the
demand of Rs.10 lacs raised by her in-laws, there is no consistency in
their depositions. Learned counsel for the appellants pointed out that PW-
12 in his Court deposition, admitted the fact that during the stay in
London, his sister and her husband were very happy and whenever her
sister visited Dwarka, he could notice that they were leading a happy
married life. Learned counsel for the appellants thus submitted that in
view of the gross contradictions and omissions, no credence can be
attached to the testimonies of the said witnesses, who were introduced
just with a view to falsely implicate these appellants. In support of his
arguments, learned counsel for the appellants placed reliance on the
following judgements:
a) Kans Raj vs. State of Punjab and others, 2000
SCC (Cri) 935
b) Arulvelu and Anr vs. State and Anr., 2010
Cri.LJ 433
c) State vs. Suraj Mehto & Ors., (Crl. L.P.
No.60/2011, decided by Delhi High Court on
8th August 2011).
d) Crl. A. No. 280/2011 titled as Preet Singh vs.
State of NCT of Delhi & Ors., decided by Delhi
High Court on 29.8.2011.
40. Countering the said arguments, Mr. M.N. Dudeja, learned APP for
the State and Mr. Ashok Drall, counsel representing the appellant -
Pushpa Devi strongly pleaded for upholding the impugned judgment
of conviction and order on sentence, besides pleading for setting
aside the impugned judgment so far as the acquittal of appellants -
Rajesh and Meena are concerned and to convict them alongwith
other co-accused under Section 302/120-B/34 of IPC. Counsel
submitted that the prosecution has proved its case beyond all reasonable
doubts against all the accused persons, based on the circumstantial
evidence as well as the ocular evidence of an eye witness - Poorvi (PW-
10). Mr. M.N. Dudeja, learned APP for the State vociferously contended
that the murder of the deceased was committed at the matrimonial house
and the prosecution has led a very cogent and convincing evidence to
prove each and every piece of circumstantial evidence to prove the guilt
of these accused persons besides proving the ocular evidence of child
witness - Poorvi (PW-10). He further contended that the main motive
behind these accused persons to murder Anju was to get the appellant-
Sanjeet married again as the deceased Anju, after removal of her uterus,
was incapable of giving birth to a male child. Counsel also argued that the
in-laws of the deceased , her sister-in-law Meena and her husband Rajesh
also subjected her to harassment for not paying a sum of Rs.10 lacs,
despite being told to bring the same several times. Counsel also argued
that the removal of the uterus of the deceased had become an issue in the
family, because if Sanjeet was not re-married, then there will be none left
to carry forward the family lineage. Counsel also argued that the
contemporaneous conduct of the accused persons if seen in the right
perspective and in the background of well established principles of law
on res gestae as embodied in Section 6 of Indian Evidence Act,1872
would clearly prove the involvement of all the accused persons in
committing the murder of the deceased - Anju. Counsel also argued that
there is no contemporaneous evidence to show that the murder of the
deceased had taken place while committing any robbery or dacoity at the
premises and this is also evident from the fact that no such suggestion
was given by the accused persons to the prosecution witnesses. Counsel
also argued that the entire environment of the place, on correct
appreciation of facts would lead to only one conclusion that is the guilt on
the part of these accused persons.
41. Mr. Ashok Drall, counsel for the appellant - Pushpa Devi laid
much stress on his argument that the sole testimony of PW-10 Baby
Poorvi coupled with false defence raised by accused persons and their
failure to offer any explanation as to how the crime was committed at the
matrimonial house, sufficiently prove these accused persons to be the
perpetrators of the crime. Counsel also argued that it is a settled legal
position that if an offence like murder is committed in secrecy inside the
house then the kind of evidence led by the prosecution to establish the
charge against the accused persons cannot be of the same degree as is
required in other cases and there will be corresponding burden on the
inmates of the house to give explanation as to how the crime was
committed, as per Section 106 of the Indian Evidence Act 1872.
42. Counsel further submitted that the defence failed to create any
doubt on the testimony of PW-10 Poorvi or to disbelieve her presence as
an eye witness of the crime. Counsel also pointed out that the defence has
failed to give any of the following suggestions to Poorvi (PW-10), PW-1
and PW-6 in their cross-examinations:-
a) To PW10 that she has been tutored at the
instance of PW-1 and PW-6 being the maternal
grandparents.
b) That on 30.10.2011 police had not met PW-10
at Village Bakkarwala and her statement was
not recorded.
c) That PW-10 Poorvi was in the custody of PW-1
and PW-6 just after the reaching at the spot on
29.10.2011
d) That Meena and Rajesh were not present at the
spot on the day of incident.
e) That on 29.10.2011, PW-10 Poorvi had gone
with her grandmother to her Uncle's house at
village Sarangpur.
f) That PW-10 Poorvi had not seen anybody
inflicting the knife injuries to deceased Anju.
g) That PW-10 Poorvi has deposed at the instance
of PW-1 and PW-6 or this witness has deposed
falsely against the accused persons.
h) To PW-1 and PW-6 in their cross-examination
at the early stage of evidence that PW-10 has
been tutored by them and she was not at the
spot on the day of the incident as she had gone
with accused Nirmala at the house of DW-3.
i) To PW-1 and PW-6 in their cross-examination
at the early stage of evidence that initially it was
the incident of robbery/dacoity cum murder and
nobody was talking about committing of murder
alone at Village Bakkarwala and PW1 and PW6
later on after discussing with relatives falsely
implicated the accused persons."
43. In the absence of the above suggestions, counsel submitted that the
unrebutted testimony of PW-10 and that of PW-1 and PW-6 can be taken
as an admission on the part of the accused persons to the uncontroverted
facts, deposed in examination-in-chief by these witnesses. Counsel
further argued that the recovery of two pairs of blood stained hawai
chappals from the spot belonging to PW-10 Poorvi, the blood stains were
'A+, which was also the blood group of the deceased. Counsel also
argued that in the photographs taken out by the crime team of the police,
the existence of chappals carrying the blood has been clearly shown and
therefore, the recovery of the two pairs of chappals further strengthens the
case of PW-1 in respect of the presence of PW-10 on the spot at the time
of commission of the crime. Counsel also argued that the defence failed
to give any contrary suggestions to witnesses PW-1, PW-10, PW-16 and
PW-19 to disprove that the presence of chappals or the blood present on
them was not of PW-10, so as to falsely show the presence of PW-10 at
the time of commission of crime or that Ex.PW-6/E was a fabricated
seizure memo and in fact the chappals were not taken into possession
from the spot on 29th October 2008 or even to dispute that the said
chappals recovered from the spot did not belong to PW-10. Counsel thus
submitted that the recovery of chappals from the spot remained
uncontroverted and the same further corroborates and strengthens the
presence of PW-10 on the spot at the time of murder of her mother.
Counsel further argued that PW-19 had deposed in his examination-in-
chief that on 30th October 2008 Poorvi (PW-10) was found at the house
of Narayan Singh and he had recorded her statement there and this
version of PW-19 gets corroborated from the evidence of DW-3 who in
his examination-in-chief has also deposed that the police took Satyawan,
Baljeet, Sanjeet and Nirmala to the Police Station from the spot of the
crime but he did not mention about the presence of PW-10 Poorvi which
would clearly mean that by that time, PW-10 Poorvi was shifted to the
residence of Narayan Singh. Counsel also argued that PW-16 in his cross-
examination also deposed about the presence of all the family members
of the accused persons at the spot and therefore, this manifests that PW-
15, did not exclude the presence of PW-10 Poorvi, who was a part of the
family of the accused persons. Counsel further submitted that no
suggestion was given by the defence to PW-1, PW-6 and PW-10 in their
cross-examination to suggest that PW-10 has been with them since 29th
October 2008. Counsel further submitted that no question was put to PW-
1 and PW-6 by the defence as to when and from which place they took
the custody of the child Poorvi. Such question was intentionally avoided
by the defence so as to avoid a correct answer from these witnesses.
44. Counsel also argued that a false defence was taken by the accused
persons that PW-10 Poorvi was taken by accused Nirmala and her
brother DW-3 to Village Sarangpur, Najafgarh on 29th October 2008 and
such falseness on the part of the defence got exposed as during the cross-
examination of PW-10, suggestion was given that she was playing at the
house of her friend at the time of the murder but when nothing on those
lines came out from the witness, then the defence changed the story and
tried to prove that PW-10 Poorvi was not present at the house at the time
of murder and was with DW-3 and her grandmother - Nirmala. Counsel
also submitted that DW-3 in evidence could not disclose the identity of
the person who had informed him about the incident. Counsel also argued
that it was strange that any person of the locality could have the telephone
number of DW-3. Counsel also argued that the deceitfulness on the part
of DW-3 also appears from the fact that he never lodged any complaint
with the police if he was convinced about the illegal detention of the
accused persons. Counsel thus submitted that a false defence taken by the
accused persons becomes an additional link in proving the presence of
PW-10 at the spot of the crime.
45. Counsel further argued that the plea of alibi taken by the accused
Nirmala is also palpably false and her plea also does not get any support
from the deposition of her brother - DW-3. Counsel further submitted
that it cannot be believed that a girl child of two and a half years of age
would accompany her grandmother and would remain out for overnight
stay separated from her mother. Counsel also argued that the accused
persons also cooked up a false story of robbery and murder at the hands
of the assailants when none of the accused persons were present at the
house but the defence ultimately could not succeed to hoodwink the
investigation to believe the false plea and the concocted story. Counsel
further argued that the presence of DW-3 at the spot on 30.10.2008 is
further doubtful because as per his deposition he received information at
about 6 pm on 30.10.2008 and he had reached the house of his sister
within one hour and fifteen minutes which would mean; at least by 7.15
pm and when he reached at the house he saw a huge crowd and the
persons of police, while PW-16 - Sub-Inspector Pradeep deposed that he
had received DD No.34A at 7 pm and reached within 25 minutes which
would mean by 7.25 pm and he deposed that all the family members of
the accused persons were present there inside the house. Counsel thus
contended that when all the family members of the accused persons were
present then how DW-3 could have deposed that when he had reached
alongwith his sister - Nirmala, the police was also there at the spot.
Counsel further argued that DW-3 in his examination-in-chief also
showed his ignorance about the exact date of death of his sister's
daughter-in-law, this fact further proves that he was a planted witness by
the defence. Counsel further submitted that DW-3 in his cross-
examination stated that after seeing the body of her daughter-in-law,
Nirmala had not even touched the body and if this version of DW-3 is
taken as correct, then how could there be any bloodstain on the clothes of
the accused - Nirmala. Counsel further submitted that the FSL report
clearly shows that the blood of the deceased was on the cloths of the
accused and this again negates the deposition of DW-3.
46. The next argument advanced by counsel for the complainant was
that it was the festival of 'goverdhan puja' on 29.10.2008 and on that day
family members together perform puja and therefore without performing
puja, no lady would leave the house to celebrate the festival of 'bhaiya
dooj' on the morning of the next day. Counsel also submitted that two
other brothers of the accused - Nirmala were also living at Village
Bakarwala and therefore, it was highly improbable for a sister to
accompany one brother who was living at a farther place in Village
Sarangpur, Najafgarh. Counsel also submitted that the entire conduct of
accused persons is an unnatural human conduct and can be taken against
them under Section 8 of the Evidence Act, 1872.
47. Counsel also argued that all the accused persons were having their
mobile phones but Nirmala and DW-3 did not confirm the news from the
other co-accused Sanjeet and Baljeet with regard to the happening of the
incident and such an important circumstance should be taken in their
opposition in view of Section 8 of the Indian Evidence Act, 1872.
Counsel further argued that PW-1 had specifically deposed that accused -
Sanjit was without any work yet the defence failed to explain about the
nature of work of Sanjeet or the place where he was working which even
kept him busy on the day of a festival when all other schools and
institutions remained closed.
48. Counsel also submitted that it is also surprising that DW-3 in his
cross-examination stated that he did not know Rajesh or his telephone
number although he happens to be the maternal uncle of Meena- wife of
Rajesh, and yet he was not aware as to who Rajesh was . Counsel further
submitted that there is no evidence regarding the possibility of
commission of the offences of robbery and dacoity by some assailants
although the defence made a vain attempt to misdirect the investigation.
Counsel also argued that the recovery of sum of Rs.50,000/- and a gold
chain at the instance of the accused - Nirmala adequately proves the fact
that she made all attempts to make a false case of robbery but did not
succeed in such an attempt. Counsel also argued that PW-16 - Sub-
Inspector Pradeep in his cross-examination stated that when he had
reached the spot, the situation at the site was highly stimulating and even
he quoted 'jhagre jaise halaat ho gaye thhey'. Counsel for the appellant
further contended that had it been a case of robbery or dacoity, the family
members of the complainant would have been sympathetic to the son-in-
law and parents-in-law of the deceased instead of blaming them for the
murder of their daughter. Counsel also submitted that otherwise also there
is no evidence which could even remotely suggest the possibility of
commission of the offence of robbery or dacoity. Making his submission
good, counsel pointed out that the FIR is with regard to the murder and
not robbery or dacoity, the information given to PW-1 by the informant
was about the murder of her daughter and not about robbery or dacoity
and similarly, when DW-3 asked the people who had gathered at the spot
about the incident, they informed him about the murder of Anju and not
about robbery or dacoity to have taken place. Counsel also argued that the
incident happened at about 5 - 5.30 pm in the month of October, 2008
and the house in question is situated at thickly populated area where on
both the sides, there were residential accommodations and had there
been any robbery/dacoity, someone would have surely noticed the
assailants running from the house after committing the offence. Counsel
further submitted that the motive of robbery or dacoity is always to burgle
gold, cash and other valuables but no cash or jewellery was reported to
be stolen from the house. Counsel invited attention of this Court to the
photographs (Ex.PW-4/1 to PW-4/21) which clearly demonstrate that the
deceased was wearing her earrings and gold chain and had the
robbers/dacoits attacked the house, they would have first removed all the
jewellery items, currency and other valuables lying in the house. Counsel
also argued that the number of stab wounds found on the body of the
deceased further shows that the real motive of the assailants was to
commit murder and not to commit any other offence and counsel also
argued that there was no evidence of forced entry inside the house and
this again is a crucial situation to disprove any suggestions of a robbery
or dacoity having been committed on the evening of 30th October, 2008.
49. Counsel further argued that PW-1, PW-5, PW-6 and PW-12 were
consistent in their respective depositions and that all these accused
persons hatched a conspiracy to commit murder of Anju as she was not
able to deliver a male child for the family and to none of the witnesses, a
suggestion was put by the defence about the commission of
robbery/dacoity which resultantly caused the murder of Anju. Counsel
thus submitted that the defence taken by the accused persons about the
possibility of alleged occurrence of robbery/dacoity is an afterthought.
Counsel also argued that the theory of robbery for the first time was
introduced by the defence at the time of the cross-examination of PW-16,
PW-19, when the defence did not find any other escape route to save
them. Counsel also submitted that it is also not the case of the defence
that these accused persons had any kind of enmity with any person either
in the village or elsewhere and this fact has been admitted by DW-3 in his
cross-examination and therefore, the apprehension that any other person
committed such a heinous crime is clearly ruled out.
50. Counsel further submitted that the accused persons have taken a
false stand that they were already in custody of the police since the night
of 29th October 2008 and their arrest was falsely shown on 30 th October
2008. Counsel further submitted that the speciousness on the part of the
accused persons is manifested from the fact that no such defence was
raised by them in answer to a particular question with regard to their
arrest, put to them. Counsel also submitted that murder of Anju was
committed inside the matrimonial house and therefore, the burden on the
prosecution to prove its case would be of light character based on the
principles envisaged under Section 106 of Indian Evidence Act, 1872.
Counsel thus submitted that it was for the defence to have come out with
the true and correct facts leading to the murder of Anju which had taken
place within the four walls of the matrimonial house and having failed to
do so, they instead put up a false defence clearly establishing their
involvement in the said crime.
51. Counsel also argued that the prosecution has also successfully
established the motive on the part of these assailants to carry out the
murder of Anju and motive on the part of the accused persons can be
clearly reflected from the very first statement made by PW-6 (Ex.PW-
6/M) based on which the FIR was registered. Counsel also argued that the
contention of defence that names of PW-5 and PW-12 were introduced
later so as to falsely rope them in the commission of said crime has no
legs to stand as the names of these accused persons were taken by PW-1
in her very first statement recorded on 3rd November 2008 which was
proved on record as Ex.PW-1/A. Counsel also submitted that PW-1 has
duly explained the reasons for recording of her statement by the Sub-
Divisional Magistrate on 3rd November 2008 i.e. after four days of the
incident, in her Court deposition, where she deposed that she did not give
any statement to the police on the next date because she remained very
perturbed on 31st January 2008, 1st November 2008 and 2nd November
2008.
52. Similarly, counsel pointed out that PW-6 also gave sufficient
explanation for having named Rajesh and Meena in his supplementary
statement made on 3rd November 2008, stating that it was not possible for
him to give minute details of the allegations against the accused persons
when his daughter was lying in the pool of blood in the matrimonial
home. Counsel also submitted that the version of PW-1 was fully
corroborated by the evidence of her husband PW-6 and the defence did
not give any suggestion to these witnesses to disprove their presence at
the spot of the crime. Counsel thus submitted that the delay in recording
the statement of PW-1 and supplementary statement of PW-6 again
discredit their statements made to the Sub-Divisional Magistrate as well
as their Court depositions. Counsel also argued that the FIR is not a
encyclopaedia of all the facts and circumstances of the case, as at the
time of lodging the FIR, the requirement is to place sufficient basic facts
which disclose commission of a cognizable offence, which would indeed
be enough for the investigation to commence and that each and every
fact needn't be placed at the time of registration of the FIR.
53. On the testimonies of PW-5 and PW-12, counsel for the
complainant/appellant submitted that the same cannot be doubted merely
because the statements so recorded were after a gap of two and a half
months period as these witnesses gave sufficient explanation for the
delay in recording of the statements by the police. Counsel further
submitted that even PW-12 and PW-19 explained the reasons for not
being able to record the statements of PW-5 and PW-12. Counsel also
submitted that PW-5 and PW-12 fully support the case of the prosecution
and the statements made by them under Section 161 of Cr.P.C. and their
testimonies cannot be discredited merely because of delay in recording of
their statements by the police. Counsel also submitted that for delayed
recording of the statements, the blame can be fastened on the police as it
is the duty of the police to have taken prompt steps in recording the
statements of the material witnesses and the laxity if any, on the part of
the police cannot put a question mark on the correctness of the statements
made by the said two witnesses even though recorded after some gap.
Counsel for the complainant also gave explanation as to why PW-1 and
PW-6 did not refer the visit of PW-5 and PW-12 at the matrimonial
house of Anju on 26th October 2008, the same being a human error, due
to lapse of memory as both these witnesses had lost their daughter, thus
some kind of nervousness was quite natural and possible to have arisen at
that point in time while deposing in court.
54. Counsel also submitted that it is a settled legal position that
conspiracies are hatched in secrecy and rarely is there a direct evidence to
prove conspiracy, which can only be inferred from the proven facts and
circumstances of the case. Counsel further submitted that the conspiracy
to commit murder of Anju by the accused persons was primarily to re-
marry Sanjeet so that he could bring a male child in the family to carry on
his lineage and to achieve this objective they conspired with each other to
eliminate Anju who could no more conceive and give birth to a child.
Counsel also submitted that the use of two weapons of offence in the
commission of crime and its recoveries from the house clearly establishes
involvement of two or more persons in the crime. Counsel further
submitted that the accused - Rajesh and Meena had absconded and were
arrested only on 3rd November 2008 and this circumstance of
abscondance also clearly establishes their involvement in the said crime
as this being an additional link in the chain of incriminating evidence in
establishing their involvement in the crime. Counsel also submitted that
PW-10 Poorvi also deposed the presence of Rajesh and Meena at the time
of murder at the spot and the presence of Rajesh and Meena was also
proved by the deposition of PW-6, who in his deposition referred to their
presence at the spot and also their leaving the spot after sometime.
Counsel also argued that PW-1 and PW-6 have deposed about the
harassment caused to the deceased by accused Rajesh and Meena in their
respective statements made to the police as well as in their Court
depositions and therefore, the role of Rajesh and Meena cannot be
separated from the role of other accused persons.
55. Mr. M.N. Dudeja learned APP for the State was quite vociferous in
submitting that the circumstances of the case, conduct of the accused
persons and the environment of the place are very important factors to be
looked into for reaching any final conclusion in a crime of this nature
which took place within the four walls of the matrimonial house. Counsel
also argued that the entire medical and ocular evidence collected by the
prosecution unequivocally establishes one thing, i.e., the guilt of these
accused persons in committing the murder of a young lady Anju. Counsel
also submitted that there was no animosity of any kind amongst any
relatives or neighbours and there is no trace of robbery committed at the
house, then who else except these accused persons, who also had a clear
motive, could be the perpetrators of the said barbaric crime at the
matrimonial house of Anju. Counsel thus submitted that all these accused
persons deserve their conviction under Section 302 of IPC without any
exception and urged for maintaining the sentence of life imprisonment as
awarded by the Ld. Trial Court. Counsel also pleaded that accused
Meena and Rajesh should also be awarded the same sentence.
56. Based on the aforesaid submissions, counsel for the
complainant/appellant and learned APP for the State pleaded for
upholding the order of learned trial Court so far as appeals of 386/2011,
486/2011 and 487/2011 are concerned, and for accepting the plea of the
complainant to convict and sentence the respondents - Rajesh and Meena
for the offence punishable under Section 302 IPC.
57. In support of his submissions, the following judgments were relied
upon by the learned counsel for the appellant -Pushpa and the State:-
a) State of U.P. vs. Ashok Kumar Srivastava, AIR
1992 SC 840;
b) Ramesh Kumar @ Rameshwar vs. State, 2010
CriLJ 85;
c) Trimukh Maroti Kirkan vs. State of
Maharashtra, (2006) 10 SCC 681;
d) Superintendant of Police, CBI and others vs.
Tapan Kumar Singh, AIR 2003 SC 4140;
e) Abu Thakir & Ors vs. State, JCC 2010 (2)
1503 SC
f) Dhanaj Singh vs. State of Punjab, AIR 2004
SC 1920;
g) Yogesh @ Sachin Jagdish Joshi vs. State of
Maharashtra, AIR 2008 SC 2991;
h) State of U.P. vs. Krishna Master & Ors., 2010
Cri.LJ 3889 SC
i) Gunnana Pentayya @ Pendadu & Ors vs. State
of UP, (2009) 16 SCC 59;
j) Sheo Shanker Singh vs. State of Jharkhand
and Ors. II (2011) SLT 217, SC.
58. We have heard the learned counsel for the parties at considerable
length and have also bestowed our thoughtful consideration to the pleas
raised by them. We have also gone through the judgment passed by the
learned ASJ and examined the lower court record.
59. Every criminal trial is a voyage of discovery in which truth is the
quest and it is the solemn duty of the court to disengage truth from
falsehood instead of taking an easy course of rejecting the evidence in its
entirety solely on the ground that the same is not acceptable in case of
some of the accused. The Court has to minutely dissect the entire
evidence placed before it in order to give a virtuous and upright decision.
This journey of the Court to search for truth primarily depends on the
material placed before it by the police and to check if it satisfies the
ordeal of credibility. The fair, independent and impartial investigation at
the hands of the competent investigating team is a sine qua non for any
fair trial of a criminal case. The task of the investigation is no different
from that of the Courts as investigation is also a systematic search for the
truth. The objective of investigation is to first determine whether a crime
indeed has been committed and then to search for the perpetrators of the
crime by using their expert investigating techniques with the help of
scientific and modern methods so as to present the best possible case
before the court. Foremost duty of the investigating team is to see that no
innocent man is falsely implicated and no guilty man is able to escape
their attention. The conviction and acquittal of any accused in a crime to a
very large extent depends on the fervour and competence of the
investigating team. The onerous task of the Court to search for the truth
can become easy if the investigating team has performed its job with all
fairness, sincerity, honesty, impartiality and without being influenced by
any extraneous factors, and conversely, the task of the Court would
become difficult if the investigation is shoddy, full of loop holes, gaps
and not conducted in a fair, honest and impartial manner. The duty of the
investigating team is not merely to bolster the prosecution case with such
evidence as may enable the Court to record the conviction but essentially
to bring out the real unvarnished truth. After all, a criminal trial is meant
for doing justice to all, i.e., the accused and the victim of the crime and
more importantly the society itself. In the matter of H.N. Rishbud
and Inder Singh vs. State of Delhi, reported in AIR 1955 SC 196, the
Hon'ble Supreme Court of India exhaustively laid down the procedure of
investigation as follows:-
"5. ...When information of the commission of a
cognizable offence is received or such commission is
suspected, the appropriate police officer has the
authority to enter on the investigation of the same
(unless it appears to him that there is no sufficient
ground). But where the information relates to a non-
cognizable offence, he shall not investigate it without
the order of a competent Magistrate. Thus it may be
seen that according to the scheme of the Code,
investigation is a normal preliminary to an accused
being put up for trial for a cognizable offence (except
when the Magistrate takes cognizance other-wise than
on a police report in which case he has the power
under section 202 of the Code to order investigation if
he thinks fit). Therefore, it is clear that when the
Legislature made the offences in the Act cognizable,
prior investigation by the appropriate police officer
was contemplated as the normal preliminary to the
trial in respect of such offences under the Act. In
order to ascertain the scope of and the reason for
requiring such investigation to be conducted by an
officer of high rank (except when otherwise permitted
by a Magistrate), it is useful to consider what
"investigation" under the Code comprises.
Investigation usually starts on information relating to
the commission of an offence given to an officer in
charge of a police station and recorded under section
154 of the Code. If from information so received or
otherwise, the officer in charge of the police station
has reason to suspect the commission of an offence,
he or some other subordinate officer deputed by him,
has to proceed to the spot to investigate the facts and
circumstances of the case and if necessary to take
measures for the discovery and arrest of the offender.
Thus investigation primarily consists in the
ascertainment of the facts and circumstances of the
case. By definition, it includes "all the proceedings
under the Code for the collection of evidence
conducted by a police officer". For the above
purposes, the investigating officer is given the power
to require before himself the attendance of any person
appearing to be acquainted with the circumstances of
the case. He has also the authority to examine such
person orally either by himself or by a duly
authorised deputy. The officer examining any person
in the course of investigation may reduce his
statement into writing and such writing is available,
in the trial that may follow, for use in the manner
provided in this behalf in section 162. Under section
155 the officer in charge of a police station has the
power of making a search in any place for the seizure
of anything believed to be -necessary for the purpose
of the investigation. The search has to be conducted
by such officer in person. A subordinate officer may
be deputed by him for the purpose only for reasons to
be recorded in writing if he is unable to conduct the
search in person and there is no other competent
officer available. The investigating officer has also
the power to arrest the person or persons suspected of
the commission of the offence under section 54 of the
Code. A police officer making an investigation is
enjoined to enter his proceedings in a diary from day-
to-day. Where such investigation cannot be completed
within the period of 24 hours and the accused is in
custody he is enjoined also to send a copy of the
entries in the diary to the Magistrate concerned. It is
important to notice that where the investigation is
conducted not by the officer in charge of the police
station but by a subordinate officer (by virtue of one
or other of the provisions enabling him to depute such
subordinate officer for any of the steps in the
investigation) such subordinate officer is to report the
result of the investigation to the officer in charge of
the police station. If, upon the completion of the
investigation it appears to the officer in charge of the
police station that there is no sufficient evidence or
reasonable ground, he may decide to release the
suspected accused, if in custody, on his executing a
bond. If, however, it appears to him that there is
sufficient evidence or reasonable ground, to place the
accused on trial, he is to take the necessary steps
therefore under section 170 of the Code. In either
case, on the completion of the investigation he has to
submit a report to the Magistrate under section 173 of
the Code in the prescribed form furnishing various
details. Thus, under the Code investigation consists
generally of the following steps:(1) Proceeding to the
spot, (2) Ascertainment of the facts and circumstances
of the case, (3) Discovery and arrest of the suspected
offender, (4) Collection of evidence relating to the
commission of the offence which may consist of (a) the
examination of various persons (including the
accused) and the reduction of their statements into
writing, if the officer thinks fit, (b) the search of
places of seizure of things considered necessary for
the investigation and to be produced at the trial, and
(5) Formation of the opinion as to whether on the
material collected there is a case to place the accused
before a Magistrate for trial and if so taking the
necessary steps for the same by the filing of a charge-
sheet under section 173. The scheme of the Code also
shows that while it is permissible for an officer in
charge of a police station to depute some subordinate
officer to conduct some of these steps in the
investigation, the responsibility for every one of these
steps is that of the person in the situation of the officer
in charge of the police station, it having been clearly
provided in Section 168 that when a subordinate
officer makes an investigation he should report the
result to the officer in charge of the police station. It
is also clear that the final step in the investigation,
viz. the formation of the opinion as to whether or not
there is a case to place the accused on trial is to be
that of the officer in charge of the police station.
There is no provision permitting delegation thereof
but only a provision entitling superior officers to
supervise or participate under Section 551."
60. Laying emphasis on the concept of fair investigation and fair trial,
the Supreme Court in the matter of Siddharth Vashshith v. State of NCT
of Delhi, reported in AIR 2010 SC 2352 observed as under:-
"199. In the Indian Criminal jurisprudence, the
accused is placed in a somewhat advantageous
position than under different jurisprudence of some of
the countries in the world. The criminal justice
administration system in India places human rights
and dignity for human life at a much higher pedestal.
In our jurisprudence an accused is presumed to be
innocent till proved guilty, the alleged accused is
entitled to fairness and true investigation and fair
trial and the prosecution is expected to play balanced
role in the trial of a crime. The investigation should
be judicious, fair, transparent and expeditious to
ensure compliance to the basic rule of law. These
are the fundamental canons of our criminal
jurisprudence and they are quite in conformity with
the constitutional mandate contained in Articles 20
and 21 of the Constitution of India. A person is
entitled to be tried according to the law in force at the
time of commission of offence. A person could not be
punished for the same offence twice and most
significantly cannot be compelled to be a witness
against himself and he cannot be deprived of his
personal liberty except according to the procedure
established by law. The law in relation to
investigation of offences and rights of an accused, in
our country, has developed with the passage of time.
On the one hand, power is vested in the investigating
officer to conduct the investigation freely and
transparently. Even the Courts do not normally have
the right to interfere in the investigation. It
exclusively falls in the domain of the investigating
agency. In exceptional cases the High Courts have
monitored the investigation but again within a very
limited scope. There, on the other a duty is cast upon
the prosecutor to ensure that rights of an accused are
not infringed and he gets a fair chance to put forward
his defence so as to ensure that a guilty does not go
scot free while an innocent is not punished. Even in
the might of the State the rights of an accused cannot
be undermined, he must be tried in consonance with
the provisions of the constitutional mandate. The
cumulative effect of this constitutional philosophy is
that both the Courts and the investigating agency
should operate in their own independent fields while
ensuring adherence to basic rule of law. It is not only
the responsibility of the investigating agency but as
well that of the Courts to ensure that investigation is
fair and does not in any way hamper the freedom of
an individual except in accordance with law. Equally
enforceable canon of criminal law is that the high
responsibility lies upon the investigating agency not
to conduct an investigation in tainted and unfair
manner. The investigation should not prima facie be
indicative of bias mind and every effort should be
made to bring the guilty to law as nobody stands
above law de hors his position and influence in the
society.
200. In the case of Kashmeri Dev v. Delhi
Administration and Anrs. [JT 1988 (2) SC 293] it has
been held:
"That the record of investigation should not
show that efforts are being made to protect and
shield the guilty even where they are police
officers and are alleged to have committed a
barbaric offence/crime. The Courts have even
declined to accept the report submitted by the
investigating officer where it is glaringly unfair
and offends basic canons of criminal
investigation and jurisprudence. Contra
veritatem lex nunquam a liquid permittit:
implies a duty on the Court to accept and
accord its approval only to a report which is
result of faithful and fruitful investigation. The
Court is not to accept the report which is
contra legem but to conduct judicious and fair
investigation and submit a report in accordance
with Section 173 of the Code which places a
burden and obligation on the State
Administration. The aim of criminal justice is
two-fold. Severely punishing and really or
sufficiently preventing the crime. Both these
objects can be achieved only by fair
investigation into the commission of crime,
sincerely proving the case of the prosecution
before the Court and the guilty is punished in
accordance with law."
61. On the role of the investigating officer in the dispensation of
criminal justice, the Apex Court in State of Bihar v. P.P. Sharma,
reported in 1991 Crl. L. J. 1438, observed as under:
"47. The Code demarcates the field of investigation
exclusively to the executive to be vigilant over law
and order. Police officer has statutory power and right
as a part to investigate the cognizable offence
suspected to have been committed by an accused and
bring the offender to book. In respect thereof he needs
no authority from a Magistrate or a Court except to
the extent indicated in Sub-section 3 of Section 156,
the superintendence sparingly over the investigation
and the matters incidental thereto, like enlarging the
accused on bail or to secure his presence for further
investigation; to record judicial confession under
Section 164 of the Code or to conduct identification
parade of the accused or the Articles of crime or
recording dying declaration under Section 32 of
Evidence Act."
62. In Sanjeev Nanda v. State, reported in 160 (2009) DLT 775,
learned single judge of this Court also laid emphasis on the need for
scientific investigation than the one involving obsolete methods and
relevant paras of the same are reproduced as under:-
"Role of investigating authorities
274. Since our country follows the adversarial
system of criminal justice, it is essential for bringing
the culprits to the books that the prosecution is strong
and well fed by the investigating agencies.
275. Police and other investigating agencies are at
the heart of the criminal justice system of India. The
foundation for the Criminal Justice System is the
investigation by the police. When an offence
committed is brought to the notice of the police, it is
their responsibility to investigate into the matter to
find out who has committed the offence, ascertain the
facts and circumstances relevant to the crime and to
collect the evidence, oral or circumstantial, which is
necessary to prove the case in the Court. The success
or failure of the case depends entirely on the work of
the investigating officer.
276. In India, the rate of acquittal of criminals as
compared to conviction rate is very high. In the report
submitted by Committee on Reforms of Criminal
Justice System, Government of India, Ministry of
Home Affairs headed by Dr. Justice V.S. Malimath,
formerly, Chief Justice of Karnataka and Kerala High
Courts, popularly known as the Malimath Committee
Report, the reasons behind such low rate of
conviction in India were reported as under:
2.19.3 Technical or non-fulfilment of any procedural
requirement or inadequacies of evidence or non-
examination of material witnesses, mistakes in
investigation and similar other factors have quite
often contributed to acquittals. This amounts to
failure of the Courts' to search for truth to do justice.
277. Investigation is basically an art of unearthing
the truth for the purpose of successful detection and
prosecution. The Apex Court in State of Bihar v. P.P.
Sharma, 1992 Supp (1) SCC 222 explained various
steps involved in investigation, in the following terms:
39. Investigation consists of diverse steps -- (1)
to proceed to the spot, (2) to ascertain the facts
and circumstances of the case; (3) discovery
and arrest of the suspected offender, (4)
collection of evidence relating to the
commission of the offence which may consist of
(a) the examination of various persons
including the accused and the reduction of their
statements into writing if the officer thinks fit
(Section 161 CrPC), (b) the search of places
and seizure of things necessary for the
investigation to be proceeded with for the trial
(Section 165 CrPC etc.) and (c) recovery of the
material objects or such of the information
from the accused to discover, in consequence
thereof, so much of information relating to
discovery of facts to be proved. (Section 27 of
the Indian Evidence Act).
278. In Jamuna Chaudhary v. State of Bihar-
(1974) 3 SCC 774 the Hon'ble Supreme Court held:
"The duty of the Investigating Officer is not
merely to bolster up a prosecution case with
such evidence as may enable the Court to
record a conviction but to bring out the real
unvarnished truth."
279. In P.P. Sharma's case (supra) the Hon'ble
Apex Court observed as under the duty of the
investigating officer:
47. The investigating officer is the arm of the
law and plays pivotal role in the dispensation of
criminal justice and maintenance of law and
order. The police investigation is, therefore, the
foundation stone on which the whole edifice of
criminal trial rests -- an error in its chain of
investigation may result in miscarriage of
justice and the prosecution entails (sic) with
acquittal. The duty of the investigating officer,
therefore, is to ascertain facts, to extract truth
from half-truth or garbled version, connecting
the chain of events. Investigation is a tardy and
tedious process. Enough power, therefore, has
been given to the police officer in the area of
investigatory process, granting him or her
great latitude to exercise his discretionary
power to make a successful investigation. It is
by his action that law becomes an actual
positive force. Often crimes are committed in
secrecy with dexterity and at high places. The
investigating officer may have to obtain
information from sources disclosed or
undisclosed and there is no set procedure to
conduct investigation to connect every step in
the chain of prosecution case by collecting the
evidence except to the extent expressly
prohibited by the Code or the Evidence Act or
the Constitution. In view of the arduous task
involved in the investigation he has been given
free liberty to collect the necessary evidence in
any manner he feels expedient, on the facts and
in given circumstances. His/her primary focus
is on the solution of the crime by intensive
investigation. It is his duty to ferret out the
truth. Laborious hard work and attention to the
details, ability to sort through mountainous
information, recognised behaviourial patterns
and above all, to co-ordinate the efforts of
different people associated with various
elements of the crime and the case, are
essential. Diverse methods are, therefore,
involved in making a successful completion of
the investigation
Need for scientific investigation
280. Scientific inputs help the investigators in
solving a number of cases of crime. The latest state-
of-the-art equipments are the need of the hour
considering the escalating rates of acquittal in India
due to faulty and defective investigation. In plethora
of cases, the Hon'ble Apex Court has pointed out the
need for scientific investigation by the investigating
agency and deprecated the practice of failure on the
part of the investigating agencies in collecting
relevant evidence resulting in the acquittal of the
accused due to inefficient and untrained Investigating
Officers, who take the investigation in a very casual,
careless and traditional manner. With the
advancement in science and technology, it is high time
that the novel & scientific methods of investigation by
a team of well-trained experts and not merely through
an ill equipped, overburdened and constrained team
of Investigating Officers. "
63. Reiterating the aforesaid principles of investigation, this court also
elucidated in Crl. A. 1297 and 1322/2010, titled as Pawan @ Diggi Vs .
State, decided on 24.01.2014 as under:
16. In the matter of Jamuna Chaudhary and others vs.
State of Bihar, AIR 1974 SC 1822, the Apex Court
ascribed the role of the investigating officer to bring out
the real unvarnished truth for the courts to reach a right
conclusion. Relevant para of the said judgment is
referred to as under:-
The duty of the Investigating Officers is not merely to
bolster up a prosecution case with such evidence as may
enable the Court to record a conviction but to bring out
the real unvarnished truth. It is apparent that the
prosecution witnesses had tried to omit altogether any
reference to at least the injuries of the appellant
Ramanandan because there was a cross case in which
such an admission could have been made use of to
support the prosecution in that case. Dukhharan,
however, made a very feeble and obviously untruthful
attempt to account for the injuries of Ramanandan by
saying that he had snatched a pharsa from one of the
members of the crowd and had started swinging it
around. He could not, however, state whether any one
was injured by it. He even stated that he did not
recognise the man from whom he had snatched the
pharsa. Although he said that he knew Ramanandan from
his childhood, he could not say whether all his fingers
were present on the day of occurrence. It was apparent
that he was trying to conceal some occurrence over the
Shikmi land that morning in which the fingers of
Ramanandan were chopped off. He admitted that there
was a dispute between Raghubir, Jamuna, and Rajdhari
which had lasted 2 1/2 to 3 years over the Shikmi land. In
fact, this dispute was given as the only cause of the
incident set up by the prosecution.
17. After a challan is filed, if the Court is of the opinion
that the evidence on record is sufficient to proceed
against the accused, then the Court shall take the
cognizance and vice-versa. After the Court has taken
cognizance and the charges are framed against the
accused, the journey of trial commences. The sole object
of every trial is to conduct a fair trial in search of a
ultimate truth viz. whether the accused is an actual
perpetrator of the crime or is an innocent person. To find
out the ultimate truth in a criminal case, the court is not
dependent merely on the evidence placed on record by
the police. The effect of any criminal proceedings cannot
always be left entirely in the hands of the parties as
ultimately, it is the duty of the court to leave no stone
unturned to bring out the truth for doing complete justice
between the parties and to protect the interest of the
society as well. Dealing with the concept of fair trial in
relation to any criminal proceedings, the Apex Court in
the case of Zahira Habibullah Sheikh (5) and Anr. v.
State of Gujarat and Ors. reported in 2006(3) SCC 374
held as under:-
The complex pattern of life which is never static requires
a fresher outlook and a timely and vigorous moulding of
old precepts to some new conditions, ideas and ideals. If
the court acts contrary to the role it is expected to play, it
will be destruction of the fundamental edifice on which
the justice delivery system stands. People for whose
benefit the courts exist shall start doubting the efficacy of
the system. Justice must be rooted in confidence; and
confidence is destroyed when right-minded people go
away thinking: 'The Judge was biased.' (Per Lord
Denning, M.R. in Metropolitan Properties Co. ltd v.
Lannon, All ER p. 310 A.) The perception may be wrong
about the Judge's bias, but the Judge concerned must be
careful to see that no such impression gains ground.
Judges like Caesar's wife should be above suspicion (Per
Bowen, L.J. in Leeson v. General Council of Medical
Education.). It was significantly said that law, to be just
and fair has to be seen devoid of flaw. It has to keep the
promise to justice and it cannot stay petrified and sit
nonchalantly. The law should not be seen to sit by limply,
while those who defy it go free and those who seek its
protection lose hope (see Jennison v. Baker).
Increasingly, people are believing as observed by Salmon
quoted by Diogenes Laertius in Lives of the
Philosophers, Laws are like spiders' webs: if some light
or powerless thing falls into them, it is caught, but a
bigger one can break through and get away Jonathan
Swift, in his Essay on the Faculties of the Mind said in
similar lines: Laws are like cobwebs, which may catch
small flies, but let wasps and hornets break through.
Right from the inception of the judicial system it has been
accepted that discovery, vindication and establishment of
truth are the main purposes underlying the existence of
the courts of justice. The operative principles for a fair
trial permeate the common law in both civil and criminal
contexts. Application of these principles involves a
delicate judicial balancing of competing interests in a
criminal trial: the interests of the accused and the public
and to a great extent that of the victim have to be
weighed not losing sight of the public interest involved in
the prosecution of persons who commit offences.
18. Describing that a criminal trial is not like a fairy tale,
the Hon'ble Apex Court in State of Punjab vs. Jagbir
Singh & Others, reported in AIR 1973 SC 2407 has held
as under:-
A criminal trial is not like a fairy tale wherein
one in free to give flight to one's imagination
and fantasy. It concerns itself with the question
as to whether the accused arraigned at the trial
is guilty of the crime with which he is charged.
Crime is an event in real life and is the product
of interplay of different human emotions. In
arriving at the conclusion about the guilt of the
accused charged with the commission of a
crime, the court has to judge the evidence by the
yardstick of probabilities, its intrinsic worth and
the animus of witnesses. Every case in the final
analysis would have to depend upon its own
facts. Although the benefit of every reasonable
doubt should be given to the accused, the courts
should not at the same time reject evidence
which is ex facie trustworthy on grounds which
are fanciful or in the nature of conjectures.
19. Laying emphasis for the courts to adopt rational,
realistic and genuine approach for administering justice
in a criminal trial, the Apex Court in the case of State of
Himachal Pradesh vs. Lekh Raj & Anr., reported in
(2000) 1 SCC 247, in the following para held as under:-
The criminal trial cannot be equated with a
mock scene from a stunt film. The legal trial is
conducted to ascertain the guilt of innocence of
the accused arraigned. In arriving at a
conclusion about the truth, the Courts are
required to adopt rational approach and judge
the evidence by its intrinsic worth and the
animus of the witnesses. The hyper technicalities
or figment of imagination should not be allowed
to divest the court of its responsibility of sifting
and weighing the evidence to arrive at the
conclusion regarding the existence or otherwise
of a particular circumstances keeping in view
the peculiar facts of each case, the social
position of the victim and the accused, the larger
interests of the society particularly the law and
order problem and degrading values of life
inherent in the prevalent system. The realities of
life have to be kept in mind while appreciating
the evidence for arriving at the truth. The courts
are not obliged to make efforts either to give
latitude to the prosecution or loosely construe
the law in favour of the accused. The traditional
dogmatic hyper technical approach has to be
replaced by rational, realistic and genuine
approach for administering justice in a criminal
trial. Criminal Jurisprudence cannot be
considered to be a Utopian though but have to
be considered as part and parcel of the human
civilisation and the realities of life. The courts
cannot ignore the erosion in values of life which
is a common feature of the present system. Such
erosions cannot be given a bonus in favour of
those who are guilty of polluting society and the
mankind.
20. In State of Karnataka vs. Yarappa Reddy, 2000 SCC
(Cri.) 61, the view taken by the Apex Court was that the
court must have predominance and pre-eminence in a
criminal trial over the action taken by the investigating
officer and criminal justice should not be made causality
for the wrongs committed by the investigating officers in
the case. The relevant para of said judgment is
reproduced as under:-
19. But can the above finding (that the station
house diary is not genuine) have any inevitable
bearing on the other evidence in this case? If the
other evidence, on scrutiny, is found credible
and acceptable, should the Court be influenced
by the machinations demonstrated by the
Investigating Officer in conducting investigation
or in preparing the records so unscrupulously?
It can be a guiding principle that as
investigation is not the solitary area for judicial
scrutiny in a criminal trial, the conclusion of the
Court in the case cannot be allowed to depend
solely on the probity of investigation. It is well-
nigh settled that even if the investigation is
illegal or even suspicious the rest of the
evidence must be scrutinised independently of
the impact of it. Otherwise the criminal trial will
plummet to the level of the investigating officers
ruling the roost. The court must have
predominance and pre-eminence in criminal
trials over the action taken by the investigation
officers. Criminal Justice should not be made a
casualty for the wrongs committed by the
investigating officers in the case. In other words,
if the court is convinced that the testimony of a
witness to the occurrence is true the court is free
to act on it albeit the investigating officer's
suspicious role in the case.
64. After the investigating team completes its task and places the
charge sheet before the concerned trial Court, the real journey of the
Court begins in search for truth. It is after all the most fundamental and
pious duty of the Court to ascertain the truth and then impart justice on
the basis of truth. The truth has been held to be an ace in the entire
judicial system and the Courts are the repositories of faith of the people.
The Courts have to play a pro-active role to discover the truth to do
complete justice between the parties and in the process carry out in-depth
examination and evaluation of material placed on record by the
investigating team and equally by the defence. The shaky, shoddy and
defective investigation cannot come in the way of the Court while
evaluating the evidence placed on record and it is the prime duty of the
court to objectively analyse whether a person who is accused of an
offence, deserves acquittal or conviction which is indeed an uphill task.
65. In a plethora of judgments, the Apex Court has taken a view that
acquitting an accused person solely on the basis of faulty and defective
investigation would amount to playing in the hands of the investigating
officer and criminal justice system will become a casualty for the wrongs
committed by such kind of investigating officer.
66. In the case of Ram Bihari Yadav v. State of Bihar and Ors. (1998
(4) SCC 517 it was held that if primacy is given to such designed or
negligent investigation due to the omissions or lapses by perfunctory
investigation, the faith and confidence of the people would be shaken not
only in the Law enforcing agency but also in the administration of justice.
The view was again re- iterated in the case of Amar Singh v. Balwinder
Singh and Ors. 2003 (2) SCC 518.
67. Success or failure of any criminal trial depends upon lots of
factors; the first and foremost role is of the police as the criminal
machinery sets in motion when any offence is brought to their notice.
Then comes the role of the investigating team as to how the investigation
is conducted, if the same is done in a perfect precession or in a lopsided
manner just not bothering to adopt any scientific measures. The
investigating team should frequently monitor and keep a tab that the
investigation is carried out in a most fair, honest and impartial manner
making all sincere efforts to bring the real culprit of the crime to book,
else the same would result in an unfair, dishonest and biased
investigation, which would save the actual culprit and falsely implicate
some innocent person. An investigation would be successful only if all
sincere efforts are made to promptly complete it and not to proceed in a
leisurely and lackadaisical fashion. It may even require the help of the
family of the victims in apprehending the actual culprit of the crime. The
investigating team has to be vigilant and cautious that it may not take the
help of the culprit of the crime in the manner that it misdirects the
investigation, deliberately leaving many lacunae to the advantage of the
defence rather should make all efforts to leave no gaps, loopholes or
lacunae in conducting the same. This entire guiding process which
ultimately may or may not lead to a just conclusion is the responsibility
of the investigating team at the first place. The police and the other
investigating agencies are thus at the heart of the criminal justice delivery
system in the country. After the role of the investigation is complete then
comes the role of the prosecuting agency and of the counsel representing
the defence. Here again the fate of the prosecution would depend upon
the competence/incompetence of the prosecutors and equally that of the
counsel representing the defence. In large majority of the cases, the cases
of the indigent facing criminal prosecution are represented through
counsels on the panel of the legal aid committees and it is commonly seen
the effort and hard work as is required to be put on behalf of the defence
is missing. Same is true in case of rich and mighty people, who are
represented through lawyers of high calibre and standing and in many of
such cases the calibre of the prosecutors do not match and stand up to
face the experience, knowledge and standing of such astute lawyers. And
lastly and more importantly the role comes of the Trial Courts to very
objectively and dispassionately evaluate the entire material brought on
record by the prosecution and defence to give a just and impartial finding
in a most free, fair and honest manner uninfluenced by the standing of the
prosecutor or of the defence counsel.
68. The witnesses in a criminal trial are said to be the eyes and ears of
any crime. These witnesses can be eye witnesses, injured eye witnesses,
chance witnesses, natural witnesses and also the defence witnesses. There
cannot be a better evidence to prove any crime then the evidence of an
eye witness and if there is no eye witness to the crime or even where the
eye witness is not prepared to come to the aid of the investigation, to
stand as a witness for what he has seen then the only other option left
with the investigation is to base the case of the prosecution on
circumstantial evidence. The evidence in each case has to be considered
from the point of view of trustworthiness, reliability and from the angle
as to whether it inspires confidence in the mind of the Court. There
cannot be a prosecution case with a cast-iron perfection in all respects and
it is obligatory for the Courts to analyse and assess the evidence on
record, with particular reference to its trustworthiness and truthfulness, by
a process of dispassionate, judicial scrutiny with an objective and
reasonable appreciation of the same, without being obsessed by an air of
total suspicion of the case of the prosecution. (Ref: Sardul Singh v. State
of Haryana 1970 SLR SC 101).
69. In the background of the aforesaid legal principles, let us now
examine as to whether the prosecution has succeeded to bring home the
guilt of the accused persons and also whether the findings given by the
learned trial Court are based upon proper appreciation of facts of the case
and sound judicial principles of law.
70. Before we deal with the respective contentions raised by the
counsel for the parties, let us again have a look on the basic facts of the
case. It is a shocking case of murder of a young married woman just of
about 22 years of age, who was brutally killed by the assailants with such
vengeance that the front portion of her body was inflicted with almost 20
wounds. Two knives were used by the assailants to brutally kill her. The
fact that murder of the victim Anju took place at her matrimonial house
on the dreadful evening of 29th October, 2008, when she took her last
breath, a day of 'Goverdhan Pooja', a festival i.e. widely celebrated in
our society is not in dispute. Anju got married with Sanjeet on 28.11.2004
and out of this wedlock a female child namely Poorvi was born who was
about two and half years of age on the date of the incident. It is also not in
dispute that at the time of delivery of the child - Poorvi, Anju's uterus
was removed by the doctors because of which she could no more
conceive. Co-accused Meena is her sister in law who got married with
Rajesh and was residing at her matrimonial home at Nangloi. Co-accused
Baljeet and Nirmala are the parents-in-law of the deceased. The offence
had taken place at the matrimonial house of the deceased and the
matrimonial house is located in a thickly populated residential area.
71. The most vital aspect which needs a deeper scrutiny in all cases of
such grave nature is actually to ascertain as to who are the actual
assailants and perpetrators of the crime. As per the prosecution, Sanjeet-
husband, Baljeet- father-in-law, Nirmala- mother-in-law, Meena- sister-
in-law and real brother-in-law had conspired together to commit the
murder of Anju. The learned trial Court convicted the accused persons,
namely, Nirmala, Baljeet and Sanjeet for committing the offences under
Sections 302/498A/304B/34 IPC and acquitted accused Rajesh and
accused Meena so far as the offence of murder is concerned after giving
them the benefit of doubt. As regards the offences under Sections
498A/34 IPC are concerned, all these accused persons were held guilty.
72. The said Trial Court judgment and the order on sentence is under
challenge in the present appeals. The three accused persons, who have
been convicted for committing an offence under Section 302/120B/34
IPC and the accused Rajesh and Meena, who have been convicted for the
offence under Section 498A/34 IPC are seeking to set aside the impugned
judgment and order on sentence passed against them while the
complainant Pushpawati in her appeal seeks conviction of Rajesh and
Meena under Section 302/120B/IPC and urges that they be sentenced at
par with other accused persons. State is here to oppose the three appeals
preferred by the accused persons and lends its support so far as the appeal
filed by the complainant is concerned.
73. Elaborate and extensive arguments were addressed from both the
sides. Written submissions alongwith supporting judgments were also
filed by both the parties. Before we delve into the submissions made by
learned counsel for the parties, we may at the outset point out that the
cause of death of Late Ms. Anju being homicidal is not under dispute and
in our view rightly so. The evidence on record amply proves that the
deceased Anju had died after having received 20 stab injuries on her neck
and on the front portion of her body. PW-8 - Dr. Manoj Dhingra had
conducted the post mortem and as per his post mortem report, the
deceased Anju had suffered following external and internal injuries:-
External Injuries:-
"1. Stab wound over right side:-
(i) Incised penetrating wound over auxiliary
fold right side 5cm below the top of
shoulder of size 5.2cm X 2.3cm. It has
cut the skin, muscle of posterior part right
arm through and through and further cut
the skin inter-costal right side posterior
auxiliary line between 2nd and 3rd rib
further cut the plane and extend the chest
cavity by cutting apea of right lung
parenchyma, above and downward
direction is obliquely vertical.
(ii) Incised penetrating wound present in
front of chest of size 2cm X 1 ½ cm. It
has cut the skin, muscle and penetrated
the right lung in between the 6th and 7th
intercostals space.
(iii) Stab incised wound present in chest of
size ½ cm, 1 cm below the above wound
in between the 7th and 8th incostal space,
it penetrating the muscle skin.
(iv) Stab incised the wound present over
abdomen 3cm, above of size 2cm X ½
cm, it penetrating the muscle, skin and
then to liver right lobe.
(v) Stab incised penetrating wound of size 2
X ½ cm at post axillary line, it
penetrating the skin, muscles.
(vi) Stab incised wound of size 1 ½ cm X ½
cm, it penetrating the skin muscle and
then to right kidney hepatic area of right
kidney.
(vii) Stab incised wound of size 2X ½ cm, it
penetrating the skin and muscles.
(viii) Stab incised wound of size 2 X ½ cm of
side at post axillary line.
(ix) Stab incised wound of size 2 X ½ cm of
size 3 ½ cm X 1 cm of back of scaplar
region at the level of T3.
(x) Stab incised wound of size 3cm X 1 cm
at the level of T4 at back of scapular
region.
(xi) Stab incised wound of size 3 cm X 1cm
at the level of T6 at interior angle of
scapula.
(xii) Stab incised wound of size 4 X 1 cm at
the level of right thigh.
2. Stab wound over left side:-
(i) Stab incised wound over left hand 2 cm
below left elbow joint of size 3cm X
1cm, it penetrate the skin and muscle.
(ii) Stab incised wound on left hand 3 ½ cm
below elbow joint of size 2cm X ½ cm it
penetrating the skin and muscle.
(iii) At back stab incised wound of size 4 cm
X ½ cm to its pearse the left kidney.
(iv) Stab in are wound of size 3 cm X ½ cm,
it penetrating skin and muscle then
penetrating to the spleen.
(v) Stab wound of size 1 cm over left thigh.
(vi) Stab wound of size 1 cm X ½ cm on left
lower thigh.
3. Neck:-
(i) Stab incised wound over neck of size
8cm X 1 cm. 2 ½cm above manubrium
sterni.
(ii) Stab incised wound over neck of size
6cm X 1 1/2 cm. I ½ cm above
manubrium sterni with cut at ant jugular
vein with cut of sternocleidomcstoid
muscle."
74. The cause of Anju's death was due to a haemorrhage shock as a
result of multiple stab injuries. The post mortem was conducted at Sanjay
Gandhi Memorial Hospital, Govt. Of NCT of Delhi, and the time since
death was stated to be approximately 19:00 hours. PW-8 , Dr. Manoj
Dhingra also gave an opinion on the request of PW-19 - Inspector
Prakash Chand regarding recovered weapon of offence (Ex.PW-8/D) and
in his opinion, after going through the post mortem report and
examination of the weapon, the injuries mentioned in the post mortem
report were possible with the weapon or similar such weapon. The said
post mortem report was proved by PW-8 - Dr. Manoj Dhingra as Ex.
PW-8/A. He was not cross examined by any of the accused persons. In
the light of these admitted facts, there can arise no difficulty in
concluding that the deceased Anju died a homicidal death caused by the
stab injuries on various parts of her body with one knife and one dagger
which were found lying at the spot of the crime.
75. Now to deal with the most crucial and critical part of the case as to
who committed the said ghastly murder of this young lady Anju. Whether
these four accused persons, who were charge sheeted by the police, are
the actual perpetrators of the crime or not all but some amongst them
were involved or if some unknown or strange assailants were involved
who while committing the crime of robbery/dacoity had murdered the
deceased Anju. Another crucial question that needs to be examined is
whether there was any motive on the part of these assailants to commit
the said murder and that too in such a barbaric and horrific manner.
76. The case of the prosecution rests on the ocular testimony of child
witness - Poorvi (PW-10) and also the circumstantial evidence proved on
record with the help of private and public witnesses supported by the
medical and forensic evidence. The testimony of the said child finds a
very crucial bearing on the circumstances relating to the occurrence of
crime in the present case.
77. PW-10 - Poorvi was a child of about two and half years of age on
the date of commission of the crime and she was of three years and nine
months of age when she came to depose before the learned trial Court.
Her testimony has come under rigorous attack by the counsels
representing the accused persons. The main contentions raised by
counsels for the accused persons to impeach the credibility of the said
child witness broadly are that she was not present at the time of incident;
she had accompanied her grandmother on the morning of 29th October
2008 after DW-3 - Sikander came to take his sister - Nirmala for the
purpose of celebrating bhaiya dooj; failure of the prosecution to examine
Narayan Singh at whose residence the statement of the child was
recorded; failure of the prosecution to examine Constable Balbir Singh,
ASI Suresh and Constable Satpal who had accompanied the Investigating
Officer to the residence of Narayan Singh, the conduct of the parents of
the deceased for not tracing their granddaughter Poorvi after not being
able to find her at the spot; PW-1 and PW-6 not even making a whisper
in their statements about the presence of Poorvi at the spot nor even in
the subsequent statement of PW-6 dated 3.11.2008 made to the SHO
and the supplementary statement made by him before the learned Sub-
Divisional Magistrate; introduction of Poorvi as an eye witness after the
advise to introduce some eye witness was given by the Senior Prosecutor;
the presence of Poorvi as an eye witness not disclosed in the reply filed
by the State to the anticipatory bail application filed by accused - Rajesh;
statement of Poorvi under Section 161 recorded by the police was
manipulated by the Investigating Officer from the back date; and lastly,
Poorvi, who remained with her maternal grandmother (Nani) from the
date of commission of the crime till her Court deposition, was a tutored
witness and her tutoring was manifested as she blurted the words 'meena
ne pakra dadi ne mara' even in reply to formal questions.
78. As per the prosecution, the said baby girl Poorvi met the
Investigating team when they landed at the house of Narayan Singh,
brother of accused Baljeet, while they were searching for the accused
persons. Statement of Poorvi was recorded by the Investigating Officer in
question - answer form under Section 161 of Cr.P.C. For better
appreciation, the statement of the Poorvi as recorded by the
Investigating Officer under Section 161 Cr.P.C. is reproduced in
vernacular as under:-
"Bayan ajane Poorvi D/o Sanjeet @ Sonu, S/o Vanjeet
Singh, R/o Gaon Wakarwala, Nangloi, Delhi ka umer
2 ½ saal U/s 161 Cr.P.C.:
Prashan: Bete aapka kya naam hai?
Uttar: Poolvi
Prashan: Aapki mummy ka kya naam hai?
Uttar: Anju
Prashan: Aapki mummy kahan hai?
Uttar: Mummy Achhpatal Patti kadane gai hai.
Main mummy paachh jaoongi.
Prashan: Hospital Kyon Gai?
Uttar: Dadi ne meli mummy to chaku mala tha.
Mummy ke pait main khoon nikla tha.
Prashan: Aapki dadi nai jab chaku mara tha, aur
kaun tha?
Uttar: Bua Meena.
Prashan: Aapki Bua nai kya kiya?
Uttar: Main lo lahi thi Bua ne godi main tha liya
tha."
79. To examine the accusation as to whether the Investigating Officer
had manipulated the statement of baby Poorvi from the back date, we
have perused the inner case diary of the police and the case diary No.2
dated 30.10.2008 clearly reveals that the Investigating Team had first
visited the house of Baljit Singh and it was found locked. The neighbours
told them that none of the accused persons had come back after the
incident and as and when they come, the police will be notified. It is
further revealed that the police team then landed at the residence of
Narayan Singh, brother of accused - Baljeet Singh where they met the
wife of Narayan Singh who told the police team that these accused
persons have already left after putting a lock in their house and their
daughter Meena had also left for her in-laws house yesterday and it was
only baby Poorvi - the grandchild of Baljeet Singh, who was staying at
their house since yesterday. The said case diary also reveals that the
statement of Poorvi was recorded by the police under Section 161 Cr.P.C.
in question answer form. It further reveals that the wife of Narayan Singh
refused to give any statement concerning the incident because the matter
pertained to Baljeet and his family. After having perused the case diary of
the police, we are not persuaded to accept the contention raised by
Mr.Vikas Pahwa, Senior Advocate that the Investigating Officer had
manipulated the recording of statement of PW-10 from the back date. We
also find no substance in the contention raised by Mr. Hariharan, Senior
Advocate to disbelieve the presence of Poorvi (PW-10) at the time of
incident merely because the police had not examined certain witnesses or
Narayan Singh was not produced by the police or the presence of Poorvi
as an eye witness was not disclosed or mentioned by the prosecution
witnesses. The recording of statement of Poorvi as an eye witness on 30th
October 2008 is a matter of fact borne out from the record and we find no
reason to disbelieve the same.
80. Now to deal with another vital facet as to whether Poorvi (PW-10)
was a tutored witness and was prompted to give answers on the dotted
lines on the dictates of her maternal grandparents and that if, it would
derelict the entire controversy and it may not be safe to place reliance on
the testimony of such a tutored child of extremely tender age.
81. It is a settled legal position that the conviction of accused persons
can be based on the testimony of a single eye witness but such testimony
must be credible, reliable and trustworthy and free from any suspicion so
far as the core of the prosecution case is concerned. However, a case may
have blotchy effect if such an eye witness happens to be a child of a
tender age, nevertheless we can also not overlook the fact that the
question whether reliance be placed on child testimony, differs from case
to case and it is not something which can be etched in stone.
82. We may refer the observations of this Court as to who can be
considered as a competent witness which have been enunciated in Crl. A.
No. 207/2000, Jodhpal vs. State, decided on 4.3.2014, which are as under:-
"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 Crl. A. No.207/2000
Page 8 of 38 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 Crl. A. No.207/2000 Page 9 of 38 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]."
83. Under the Indian Evidence Act, 1872, 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. The only precaution which the Courts should
bear in mind while assessing the evidence of a child witness is that the
evidence must find corroboration and his/her demeanour must be like any
other competent witness and he/she should not be a tutored witness.
Another precaution which the Court has suggested in the case of child
witness is that as a rule of prudence, it would be desirable to have the
authentication to such evidence from other dependable evidence on
record. The legal position concerning the testimony of child witness has
been a subject matter of discussion in catena of judgments of the Hon'ble
Supreme Court as well as the various High Courts of India and abroad. It
would be apt to refer to some of the important decisions on the subject.
84. The observation of the Courts in the case of State of U.P. vs
Krishna Master and Ors (2010) 12 SCC 324 are :
"a witness Madan Lal was six years old at the time of
occurrence and he was examined in chief, during
trial, when he was about 16 years old. The High
Court rejected his testimony on the ground that a
child of six years would not have been in a position to
recapitulate the facts in his memory when he is
examined after such a gap. Overturning the reasoning
given by the High Court, it was observed by the
Supreme Court that when a child of tender age
witnesses gruesome murder of his mother, father,
brothers etc., he is not likely to forget the incident
for his whole life and would certainly recapitulate
the facts in his memory, when asked about the same
at any point of time, notwithstanding the gap of
about 10 years between the incident and recording of
his evidence.
85. In Nivrutti Pandurang Kokate and Ors. v. State of
Maharashtra AIR 2008 SC 1460, this Court dealing with the child
witness has observed as under:
"10. ......... The decision on the question whether the
child witness has sufficient intelligence primarily rests
with the trial Judge who notices his manners, his
apparent possession or lack of intelligence, and the
said Judge may resort to any examination which will
tend to disclose his capacity and intelligence as well
as his understanding of the obligation of an oath. The
decision of the trial Court may, however, be disturbed
by the higher Court if from what is preserved in the
records, it is clear that his conclusion was erroneous.
This precaution is necessary because child witnesses
are amenable to tutoring and often live in a world of
make-believe. Though it is an established principle
that child witnesses are dangerous witnesses as they
are pliable and liable to be influenced easily, shaped
and moulded, but it is also an accepted norm that if
after careful scrutiny of their evidence the Court
comes to the conclusion that there is an impress of
truth in it, there is no obstacle in the way of accepting
the evidence of a child witness."
86. In Suryanarayana vs State Of Karnataka, (2001) 9 SCC 129, the
Hon'ble Apex Court dealing with the authenticity of a child witness
testimony held as under:
"5....The time and place of the occurrence and the
attending circumstances of the case suggest no
possibility of there being any other person as an eye-
witness. The evidence of the child witness cannot be
rejected per se, but the court, as a rule of prudence, is
required to consider such evidence with close scrutiny
and only on being convinced about the quality of the
statements and its reliability, base conviction by
accepting the statement of the child witness. The
witness of PW2 cannot be discarded only on the
ground of her being of Teen age. The fact of being
PW2 a child witness would require the court to
scrutinize her evidence with care and caution. If she is
shown to have stood the test of cross-examination and
there is no infirmity in her evidence, the prosecution
can rightly claim a conviction based upon her
testimony alone. Corroboration of the testimony of a
child witness is not a rule but a measure of caution
and prudence. Some discrepancies in the statement of
a child witness cannot be made the basis for
discarding the testimony. Discrepancies in the
deposition, if not in material particulars, would lend
credence to the testimony of a child witness who,
under the normal circumstances, would like to mix up
what the witness saw with what he or she is likely to
imagine to have seen. While appreciating the evidence
of the child witness, the courts are required to rule
out the possibility of the child being tutored. In the
absence of any allegation regarding tutoring or using
the child witness for ulterior purposes of the
prosecution, the courts have no option but to rely
upon the confidence inspiring testimony of such
witness for the purposes of holding the accused guilty
or not.
6. This Court in Panchhi & Ors. v. State of U.P.
[1998 (7) SCC 177] held that the 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 v. State of M.P.
1992 (4) SCC 225, Baby Kandayanathi v. State of
Kerala 1993 Supp (3) SCC 667; Raja Ram Yadav v.
State of Bihar, 1996 (9) SCC 287; Dattu Ramrao
Sakhare v. State of Maharashtra 1997 (5) SCC 341).
To the same effect is the judgment inState of U.P. v.
Ashok Dixit & Anr. [2000 (3) SCC 70]."
87. The position was concisely stated by BREWER, J. in WHEELER
V. United States, 159 US 523 (1895) wherein the objection was raised
to the action of the court in permitting the son of the deceased to testify.
The homicide took place on June 12, 1894, and this boy was five years
old on the 5th of July following. The case was tried on December 21, at
which time he was nearly five and a half years of age. The boy, in reply
to questions put to him on his voir dire, said, among other things, that he
knew the difference between the truth and a lie; that if he told a lie, the
bad man would get him, and that he was going to tell the truth. When
further asked what they would do with him in court if he told a lie, he
replied that they would put him in jail. He also said that his mother had
told him that morning to 'tell no lie,' and, in response to a question as to
what the clerk said to him when he held up his hand, he answered, 'Don't
you tell no story.' Other questions were asked as to his residence, his
relationship to the deceased, and as to whether he had ever been to
school, to which latter inquiry he responded in the negative. The Hon'ble
Court convicting the accused held as under:
"As the testimony is not all preserved in the record,
we have before us no inquiry as to the sufficiency of
the testimony to uphold the verdict, and are limited to
the question of the competency of this witness.
5. That the boy was not by reason of his youth, as a
matter of law, absolutely disqualified as a witness is
clear. While no one should think of calling as a
witness an infant only two or three years old, there is
no precise age which determines the question of
competency. This depends on the capacity and
intelligence of the child, his appreciation of the
difference between truth and falsehood, as well as of
his duty to tell the former. The decision of this
question rests primarily with the trial judge, who sees
the proposed witness, notices his manner, his
apparent possession or lack of intelligence, and may
resort to any examination which will tend to disclose
his capacity and intelligence, as well as his
understanding of the obligations of an oath. As many
of these matters cannot be photographed into the
record, the decision of the trial judge will not be
disturbed on review, unless from that which is
preserved it is clear that it was erroneous. These rules
have been settled by many decisions, and there seems
to be no dissent among the recent authorities. In
Brasier's Case, 1 Leach, Crown Cas. 199, it is stated
that the question was submitted to the 12 judges, and
that they were unanimously of the opinion 'that an
infant, though under the age of seven years, may be
sworn in a criminal prosecution, provided such infant
appears, on strict examination by the court, to possess
a sufficient knowledge of the nature and consequences
of an oath; for there is no precise or fixed rule as to
the time within which infants are excluded from giving
evidence, but their admissibility depends upon the
sense and reason they entertain of the danger and
impiety of falsehood, which is to be collected from
their answers to questions propounded to them by the
court.' See, also, 1 Greenl. Ev. § 367; 1 Whart. Ev. §§
398-400; 1 Best, Ev. §§ 155, 156; State v. Juneau, 88
Wis. 180, 59 N. W. 580; Ridenhour v. Railway Co.,
102 Mo. 270, 13 S. W. 889, and 14 S. W. 760; McGuff
v. State, 88 Ala. 147, 7 South. 35; State v. Levy, 23
Minn. 104; Davidson v. State, 39 Tax. 129; Com. v.
Mullins, 2 Allen, 295; Peterson v. State, 47 Ga. 524;
State v. Edwards, 79 N. C. 648; State v. Jackson, 9
Or. 457; Blackwell v. State, 11 Ind. 196.
6. These principles and authorities are decisive in this
case. So far as can be judged from the not very
extended examination which is found in the record,
the boy was intelligent, understood the difference
between truth and falsehood, and the consequences of
telling the latter, and also what was required by the
oath which he had taken. At any rate, the contrary
does not appear. Of course, care must be taken by the
trial judge, especially where, as in this case, the
question is one of life or death. On the other hand, to
exclude from the witness stand one who shows himself
capable of understanding the difference between truth
and falsehood, and who does not appear to have been
simply taught to tell a story, would sometimes result
in staying the hand of justice.
88. We think that, under the circumstances of this case, the disclosures
on the voir dire were sufficient to authorize the decision that the witness
was competent, and therefore, there was no error in admitting his
testimony. Thus the general principles of appreciating the child
witness having regard to Section 118 of the Evidence Act aptly transpire
that the evidence of a child witness has to be subjected to the closest
scrutiny and can be accepted only if the court comes to the conclusion
that the child understands the questions put to him and he is capable of
giving rational answers.
89. Children are the most vulnerable faction of the society and by
reason of their tender age definitely are considered to be a pliable
witnesses. There is no denying the fact that each child is different and
possesses varied level of interests and intellect. In today's fast paced
world, where children are exposed to media, one cannot doubt their
cognition levels. Not every child possesses sufficient understanding of
nature and the consequences of his acts, but the same cannot negate the
intellect capabilities of those who can, very well grasp the state of affairs
and maintain a vision of the same in their minds.
90. One of the issues marring the growth of our country is the evil of
child sexual abuse which we hear very often. The POCSO Act, 2013 was
therefore formulated in order to effectively address the heinous crimes of
sexual abuse and sexual exploitation of children. There lies no iota of
doubt that it takes great amount of grit and courage to distinctly explain
the horrendous incident that a child is made to go through because of
certain ruthless section of the society. A child however even at a tender
age does possess the ability to answer the questions put to her/ him
spontaneously if she/he was present at the site of crime or if he/ she has
been a victim herself. It is even the courts duty to be sensitive towards the
child as the courtroom proceedings are alien to him and it may have a
more stressful and terrifying effect which may create a fear in his mind
rendering him unable to speak about the incident. It is for the court to
adjudge the grasping abilities of children, their tendency to fantasise and
their susceptibility to coaching, which are certain factors that need careful
examination on case to case basis. Therefore, the court must be satisfied
that the attendant circumstances do not show that the child was acting
under the influence of someone or was under a threat or coercion. Careful
evaluation of the evidence of a child witness in the background of facts of
each case in context of other evidence on record is inescapable before the
court decides to rely upon it.
91. As can be seen from the broad principles laid down in the aforesaid
legal pronouncements, the competency of a child witness to give
evidence is not regulated by the age but by the degree of understanding
he/she appears to possess. Undoubtedly, the Court should examine a child
of tender years only after it has fully satisfied itself that the child is
mentally capable of understanding the questions and also understands the
duty of speaking the truth, then only such a child should ordinarily be
examined. It is thus imperative for every Court to first test the testimonial
intelligence of the child before a child is put in the witness box to testify
and where the Court finds that the child does not possess sufficient
understanding to distinguish between the truth and falsehood and also
lacks the requisite testimonial intelligence, the Court may not examine
such a child at all.
92. In one of the similar cases where the Apex Court had dealt with the
issue of testimony of child witness in Rameshwar vs. State of Rajasthan,
reported in AIR 1952 SC 54 where the Court had also examined the
provisions of the Indian Evidence Act, 1872 and Indian Oaths Act, 1873
held as under:-
"7. The proviso to section 5 of the Indian Oaths Act,
1873, prescribes that-"Provided that where the
witness is a child under twelve years of age, and the
Court or person having authority to examine such
witness of opinion that, though in understand, the duty
of speaking the truth, he does not understand the
nature of an oath or affirmation the foregoing
provisions of this section and the provisions of section
6 shall not apply to such witness, but in any such case
the absence of an oath or affirmation shall not render
inadmissible any evidence given by such witness not
affect the obligation of the witness to state the truth."
8. The question is whether the opinion referred to
must be formally recorded or whether it can be
inferred from the circumstances in which the
deposition was taken.
9. The proviso quoted above must be read along with
section 118 of the Evidence Act and section 13 of the
Oaths Act. In my opinion, an omission to administer
an oath, even to an adult, goes only to the credibility
of the witness and not his competency. The question of
competency is dealt with in section 118. Every witness
is competent unless the Court considers he is
prevented from understanding the questions put to
him, or from giving rational answers by reasons of
tender years, extreme old age, disease whether of
body or mind, or any other cause of the same kind. It
will be observed that there is always competency in
fact unless the Court considers otherwise. No other
ground of incompetency is given, therefore unless the
Oath as Act adds additional grounds of incompetency
it is evident that section 118 must prevail.
11. Section 5 is the main provision regarding the
administration of oaths. The proviso only sets out the
cases in which the oath is not to be administered. If,
therefore, an omission to take the oath does not affect
the admissibility of the evidence, it follows that an
irregularity of the kind we are considering which
arises out of the proviso cannot affect the admissibility
either Section 118 remains and unless the judge
considers otherwise the witness is competent."
93. In Gagan Kanojia and Anr vs. State of Punjab, (2006) 13 SCC
516, the Apex Court took a view that even a part of the statement of the
child witness which can be separated from the tutored portion can be
relied upon for the purpose of corroboration provided such un-tutored
part inspires confidence of the Court.
94. In a recent case, State of M.P. vs. Ramesh and Anr. reported in
(2011) 4 SCC 786, the Apex Court after referring to many previous
judgments summarised the legal position in the following words:-
"13. In view of the above, the law on the issue can be
summarized to the effect that the deposition of a child
witness may require corroboration, but in case his
deposition inspires the confidence of the Court and
there is no embellishment or improvement therein, the
Court may rely upon his evidence. The evidence of a
child witness must be evaluated more carefully with
greater circumspection because he is susceptible to
tutoring. Only in case there is evidence on record to
show that a child has been tutored, the Court can
reject his statement partly or fully. However, an
inference as to whether child has been tutored or not,
can be drawn from the contents of his deposition."
95. Dr. Hans Gross in his authoritative work on criminal
investigation has extensively dealt with the subject of child psychology
and the testimonial abilities of children of tender years and children being
innocent are held to be more suspectable to all kinds of influence, threats,
false representations and such external factors influencing the children to
speak in a particular manner and on the tutored lines but at the same time
it was opined that the children being innocent would speak especially that
part of the truth which they themselves have visibly seen.
96. In the background of the aforesaid legal principles, let us now
examine as to whether the testimony of Poorvi (PW-10) can be relied
upon as a credible and reliable piece of evidence. On the date of the
commission of offence, Baby Poorvi was merely two and half years old
and even at the time of her Court deposition, she was below five years of
age being of the age of three years and nine months. There can be no two
views that Poorvi was indeed a small baby and therefore extra caution is
required to evaluate and scrutinise her testimony.
97. Baby Poorvi in this case was examined under Section 161 Cr.P.C.
on the evening of 30th October 2008 i.e. within 24 hours from the time of
commission of crime. If, we accept the presence of Poorvi at the time of
incident, then the way the murder of Anju had taken place, i.e. 20 stabbed
wounds on her body, then certainly, even a child of such a tender age
would not easily forget such an unusual and horrifying happening. We
cannot be oblivious of the fact that here the crime that took place
involved the mother of the child and the perpetrators of the crime were
well familiar to the child, being the grandmother (dadi) and Aunt (bua) of
the child. In her statement under Section 161 Cr.P.C., which was recorded
in question - answer form, she specifically named her grandmother who
had inflicted a knife blow in the stomach of her mother due to which
blood was oozing out from the stomach and due to that her mother had
gone to the hospital for dressing. She further named her Aunt (bua) -
Meena present at the time of commission of the said crime. Investigating
Officer for the reasons best known to him did not ask more pertinent
questions with regard to the presence of the other accused persons. Yet,
we see no reason to doubt the recording of the statement made by Baby
Poorvi naming her grandmother as the lady who killed her mother and
also disclosed about the presence of Meena (bua) at the same time. PW-
10 remained resolute, unflinching and unbending from her stand at the
time of her Court deposition firmly reiterating that it was her
grandmother only who had killed her mother. She further did not disclose
about the presence of any other accused persons at the time of the
commission of crime except that of Meena and the role ascribed to Meena
was that she caught hold of her mother. To test the understanding and
rational of the child, the trial Court had put certain preliminary questions
and considering the prompt and sensible answers given by her, the Court
found in its opinion that the child was making statement voluntarily and
without any threat, pressure and coercion. The Court also observed that
the child appeared to be a happy, talkative child and was willingly giving
answers to the questions being put to her. One of the preliminary
questions put to the child was whether one should speak truth or false, the
prompt reply came "sach bolna chahiye'. The Court again put another
question i.e. Question No.15, that if somebody tells her to speak false
then would she tell a lie?, again the artless answer came "sach bolna
chahiye". To test the credibility of this witness and for better appreciation
of the facts, it would be appropriate to reproduce some of the questions
and answers as were recorded in her cross examination, which are as
under:-
"Q.2. Apki umar kya hai?
A. Teen Saal.
Q.3. Aap school jaate ho?
A. Bulbul School.
Q.4. Aap kaun si class mein padte ho?
A. Nursery mein.
Q.5. Aapke papa ka naam kya hai?
A. Sonu.
Q.7. Aapke kitne bhai bahan hai?
A. Nahin hai
Q.8. Aap kahan rahte ho?
A. Faridabad.
Q.10. Aap mandir jate ho?
A. Nahi. Mandir hee nahi hai wahan.
Q.12. Aapko kaun sa rang acha lagta hai?
A. Blue, Red and green.
Q.13 Kya sach bolna chahiye ya jhuth?
A. Sach bolna chahiye.
Q.14 Aap kisi se darte ho?
A. Nahi.
Q.15 Agar koi jhuth bolne ko kahe tokya aap jhuth
bologe?
A. Sach bolna chahiye.
Q.17. Kya aapke school mein punishment milti hai
yam am datati hai?
A. Datati hai."
98. Baby Poorvi was partly cross-examined on the same date and then
was cross-examined on two subsequent dates. Some of the questions put
to her and answers given by the witness, in her cross-examination on 4th
March 2010 are reproduced as under:-
"Q.11 Aap frock pahante ho?
A. Nahi. (at this stage the witness has started
reciting a poem in Hindi Hathi Raja kahan
chale).
(At this stage the witness has stated "Meena ne
pakra dadi ne mara).
Q.12 Abhi jo aapne bola meena ne pakra dadi ne
mara ye baat kisne batayee thee?
A. Kisi ne nahi.
Q.14 Aapke ghar mein aur kaun kaun rahta hai?
A. Rajesh, Meena, Dadi aur main.
Q.17. Bag mein kya le jate ho?
A. Tifen, khana, bottle and drawing ki copy, chota
elephant (maine kitni baar bata diya aur main
kitna bataaun).
(Dadi ne mara Meena ne pakra)
Q.18 Aap dadi ke saath bahar gaye huye the ya phir
Nani ke sath?
A. Nani ke sath."
99. Some of the other questions put to her and answers given by the
witness, in her cross-examination recorded on 9th March 2010, are
reproduced as under:-
"Q.1 Yeh waale uncle kaun hai (the defence has
counsel pointed towards the counsel for
complainant)?
A. The witness is shaking her head in negative.
Q.23. Yeh uncle jab kal mile thai inhone aap ko toffee
di thi?
A. Haan.
(The witness is started playing with colours).
Q.24. Jab yeh uncle kal mile thai inhone aap ko kaha
thai ki kal yahan aakar kya kehna hai?
A. Haan. Kehna nahi bolna hai. Kehna bhi bolna
bhi.
Q.25. Aapki ki mummy ne kal aapko kya khilaya tha?
A. The witness is not responding and playing with
colours.
Q.38. Kya aapne gedad aur sher ki kahani suni hai?
A. Nahin.
Q.39 Kya aapne budia aur doosi aurat ki kahani suni
hai?
A. Nahin.
Q.40. Kya aapki mumma nai aapko budia aur doosri
aurat ki kahani sunaiye thi?
A. Budia aur lady ki.
Q.41. Kya aapki mumma nai bataya tha ki ek budia
aur ek lady ekathe rehte thai?
A. Haan.
Q.42. Kya aapki mumma nai bataya tha ki jab budi
aurat nai doosri aurat ko maara toh khoon aaya?
A. Haan.
Q.46. Kya aapki mumma acchi hai.
A. Haan."
100. The Cross examination further continued on 25th March 2010, the
extracts of the same are reproduced as under:-
"Q.3 Mamma ne koi kahani sunie?
A. Nahi.
Q.12 Police wala kab mila tha?
A. Mangalwar ko.
Q.13. Police wale ne kya kaha tha.
A. Kucch nahi.
Q.14. Apne police wale ko kya kaha tha?
A. Kucch nahi.
Q.15. Jab police wala mila tha? To kya ye wali mami
(Maternal grandmother) tere saath thi.
A. Haan.
Q.16. Phir mami ne police wale ko kucha bataya jo
likh liya?
A. Haan. Again said Nahi.
Q.17. Kya police wale ne tere ko tofi di thi?
A. Nahi.
Q.21. Anju Mami jab hospital chali gayi to Poorvi
kahan gayi?
A. Iss mami ke ghar.
Q.22. Aaj kahan se aaye ho?
A. Kahi nahi se. Iss Mami ke ghar se.
Q.23. Jab police wala aaya that u so rahi thi ya jag
rahi thi?
A. Jaag rahi thi.
Q.24. Jab police aayi thi kya Rajesh ka naam batha
diya tha.
A. Haan.
Q.25. Phir police ne kya Rajesh ko Pakar liya tha?
A. Nahi.
Q.26. Jo teri ye wali mami kehthi hai woh tu maanti
hai?
A. Haan.
Q.27. Kya aap ki iss wali mami ne kaha tha ke ye
batana ki anju mami ko maara tha or unke
khoon nikla?
A. Haan. Again said Nahi."
101. As we can see from the cross-examination of this child witness,
defence counsel had put across many scarring questions on three different
dates and the child gave almost the same version in her Court deposition
as was stated by her in her statement recorded under Section 161 Cr.P.C.
She did not add any other name of the accused persons in her Court
deposition except that of Rajesh, but without assigning any role to him.
She also reiterated her stand that at the time when dadi had stabbed her
mother she was weeping. She further maintained that after her mother
was stabbed, blood of red colour oozed out from her stomach. It is correct
that in her cross-examination dated 04th March, 2010, she gave a different
answer to question of different nature like question no.11, where she was
asked to answer "aap frock pehante ho?" Although she replied in the
negative and also started reciting a poem in Hindi "Hathi Raja Kaha
Chale.." and soon after that she repeated that "Meena ne pakra tha, dadi
ne mara tha".
102. Similarly answer to another question No.17 put in cross-
examination, asking her to reply as to what she carried in her school bag,
and while replying she repeated the same line -"dadi ne mara, meena ne
pakra". So far as the question Nos 23 and 24 of cross-examination of
baby - Poorvi recorded on 9th March 2010 are concerned, the child was
busy in playing with colours and therefore, did not properly respond.
With regard to question No.40, 41 and 42, where the defence counsel
sought to know from the child as to whether she was told any story of an
old lady and a woman, and in the story, the old lady killing the woman,
the answer of the child came in positive. In our considered view, we do
not find any fault with the answer of the child as this was actually what
she had seen herself. Therefore the said suggestion of her grandmother
telling her a story in the form of an actual incident is not of much
significance. We also cannot lose sight of the fact that when such a
gruesome incident had taken place at the house where the child since her
birth has been residing and murderer happens to be none else but a
member of her family, then a child of even such a tender age must have
had an impact and the same could not be easily washed away from her
memory. Defence counsel made an attempt to paint the child as a tutored
witness at the hands of the police and her maternal grandmother but we
do not find the same to be true from the entire set of circumstances. We
also do not find any force in the contention raised by counsel for the
accused persons that the child was tutored to the extent that she kept
repeating the same words as were told to her. The incident of murder by
itself was so gruesome and horrifying that it must have engraved in the
mind of a small child and therefore, it was not unusual on the part of the
child to repeat in the Court what she had personally seen in front of her
eyes.
103. In our view, Baby Poorvi (PW-10) was very firm, cogent and
consistent in her Court deposition despite her lengthy and gruelling cross-
examination in describing the incident as she had seen herself in front of
her eyes. Any child who is told to depose in the manner as was actually
seen by her, cannot be said to be a tutored witness and one thing that
can't be forgotten is that the case here deals with the murder of the child's
mother by her own dadi (paternal grandmother)so the child's familiarity
with the incident was very natural. Serious attempts were made to attack
the credibility of the said child witness -Poorvi but the defence itself
failed to put the most relevant questions in her cross-examination, such as
- no suggestion was given to Poorvi that she was not present on 29th
October 2008 at the time of commission of offence and as a consequence
thereof having not seen the crime taking place before her eyes; no
suggestion was given to her that she was not present in the house of
Narayan Singh on 30th October 2008; no suggestion was given to her that
she was taken by her grandmother (dadi) to the house of DW-3 -
Sikander on the morning of 29th October 2008; no suggestion was given
to her that from the date of the incident she started residing with her
maternal grandmother - PW-1 Pushpa Devi and no suggestion was given
to her that her grandmother (dadi) never inflicted any stab blow to her
mother; and no suggestion was given to dispute the presence of Meena
and Rajesh at the time of commission of the crime; no suggestion was
given to her that the two pairs of hawai chappals recovered from the spot
did not belong to her; no suggestion was given to her that her statement
was not recorded at the house of Narayan Singh. In the absence of all
these very pertinent suggestions, defence itself has not disputed the
presence of Poorvi at the spot of the crime on the evening of 29th October
2008 and her being a witness to the scene of the crime. We also do not
find any merit in the contention raised by Mr.Vikas Pahwa, Senior
Advocate that the statement of Poorvi (PW-10) was recorded under
Section 161 Cr.P.C. after an objection was raised by the prosecution
branch to introduce the evidence of an eye witness to strengthen the case
of the prosecution. PW-19, in his cross-examination categorically denied
the suggestion and he also voluntarily deposed that Poorvi was made a
witness much earlier. He also denied the suggestion that the statement of
Poorvi was recorded after 15th January 2009 and it was ante dated. From
the deposition of PW-19, it is clearly proved that he was referring to the
statements of Amit (PW-12) and Harinder (PW-5) whose statements were
recorded after certain objections were raised by the prosecution but in his
cross-examination instead of saying witnesses, he mentioned about the
introduction of an eye witness after having discussed the matter with the
Senior Prosecutor on 15th January 2009. This is a glaring and apparent
mistake on the part of the Investigating Officer and the same cannot put
the defence to any advantageous position. We also do not find any merit
in the contention raised by Mr. Hariharan, Senior Advocate that the
presence of Poorvi as an eye witness was not disclosed in the reply filed
by the State to the anticipatory bail application of accused - Rajesh. Non
disclosure of any material fact due to any carelessness by the State in
their reply to the bail application cannot be of any benefit to the defence.
104. After carefully evaluating the evidence of the child witness Poorvi
(PW-10), we find no hesitation in believing that the said child is a truthful
and credible witness. She was truthful to the extent that she did not name
any other accused person in her Court deposition except her grandmother
and bua and with due prudence she narrated in Court what she had stated
in her statement recorded under Section 161 Cr.P.C. She was also not
found to be a tutored witness by the learned trial Court and we therefore,
find no difficulty to accept the evidence of the said child witness, being
the witness of the scene of the crime. However even after considering the
statement of Poorvi to be correct and plausible, we would still be hesitant
to mention the conviction of the accused persons solely based on her
testimony, unless we find that there is sufficient corroborative evidence
which can lend support to her testimony and overall to the case of the
prosecution in all other respects.
105. We shall now take up for discussion as to how the prosecution has
succeeded to establish the other incriminating facts in the nature of
circumstantial evidence that can lend support and corroboration to the
testimony of the said child witness (PW-10), but before we do so, we may
first deal with, whether the prosecution has proved any motive on the part
of these accused persons for the commission of such a monstrous crime.
106. As per the case of the prosecution, the main and primary motive
which has been alleged against the accused persons is that after the
removal of uterus, Anju became incapable of delivering any child which
led to her harassment and torture and in fact Nirmala joined by her
husband Baljeet and son Sanjeet used to taunt Anju so that they could re-
marry Sanjit after killing her. The other aspect of motive which has been
attributed against the accused persons was that they were subjecting Anju
to harassment for bringing insufficient dowry. PW-6 Satyawan father of
the deceased Anju in his deposition stated that he had spent Rs.11 lacs in
the marriage of his daughter and just after 2-3 months of her marriage,
these accused persons started harassing his daughter for demand of
dowry. He further deposed that he had left India and reached London on
12.7.2005 and remained there for about three years, when his daughter
used to inform him that the accused persons were harassing her for
demand of dowry.
107. He also deposed that accused persons were asking for Rs.10 lacs
for buying a big car during his stay in London. He alongwith his wife
visited India five times to request the accused persons not to harass their
daughter. He further deposed that in June 2006 his daughter gave birth to
a girl child and during this time, her uterus was removed due to some
medical complication and after removal of the uterus his daughter became
incapable of giving birth ever. He also deposed that after having come to
know about this fact, the parents-in-law of Anju started cursing and
threatening to kill Anju and re-marry Sanjit with someone else. He also
deposed that this fact was told to him by his wife. He also deposed that in
September 2006, to pacify the matter he invited Sanjit and his daughter to
London and his daughter was sent to London by their in-laws after
imposing a condition that she must return back with Rs.10 lacs. He
further deposed that Sanjit and his daughter Anju alongwith their baby
remained in London for about one and half months and he gave his
daughter whatever he could as per his capacity; however the in-laws of
Anju kept harassing her for dowry even when she returned back from
London.
108. PW-6 further deposed that after being informed by his daughter in
February 2007, he came to Delhi especially to settle the matter with her
in-laws and after having met them, he had requested them not to talk
about the re-marriage of Sanjit and about the dowry demands of Rs.10
lacs. Anju had also told the accused persons that she will not allow the re-
marriage of Sanjit. PW-6 went back to London again and finally came to
India in July 2008 and in the month of August 2008, he again called
accused Rajesh, Sanjit and Baljeet to his house to make them understand
that they should not talk about the re-marriage of Sanjit and make
unnecessary dowry demands. He also deposed that in the month of
September he went to the house of the accused persons alongwith his
wife and they again reiterated about the re-marriage of Sanjit. Finally on
29th October 2008, PW-6 received a telephonic call at 7 PM from
someone informing him that his daughter has been murdered.
109. If we look at the first statement of PW-6 - Satyawan Singh, based
on which the FIR was registered, it can be clearly discerned that he made
a lot of improvements in his Court deposition, so far as the allegation of
dowry is concerned. In his initial statement proved on record as Ex.PW-
6/M, he had not levelled any allegation against accused Meena and
accused Rajesh. In his first statement, the thread of Anju's murder was
also linked with Anju not being in a position to deliver the child after
removal of her uterus and Sanjit's re-marriage after eliminating Anju. In
the supplementary statement made by Satyawan, he for the first time
roped in accused Rajesh and Meena for harassing his daughter Anju for
bringing more dowry. In his supplementary statement, PW-6 reiterated
his allegation of murder of his daughter Anju as was told to Anju by
accused Nirmala and Meena that since she failed to bring any money
from her parents, even after she was sent to London and also that she
could no more bear a child, therefore they would all kill her. To the same
effect is the statement made by PW-1 Pushpawati under Section 161
Cr.P.C. on 3rd November 2008 as well as when she appeared in Court to
give evidence.
110. The statements of PW-5 - Harinder Singh and PW-12 Amit were
recorded much later in time i.e. on 08.09.2009 and 08.03.2010
respectively. In their Court depositions they mainly referred to the said
demand of Rs.10 lacs raised by Anju's in-laws and her life being under
threat because of her inability to deliver a child as was told to them by
Anju on their visit to her house on 26th October 2008.
111. In so far as the harassment of Anju due to dowry demands, the
same appears to us as a vague and evasive allegation and the same does
not inspire confidence of the Court. Bringing of Rs.10 lacs as part of
dowry demand or such related allegations, have been incorporated to
build a case of dowry death either by the complainant party or at the
instance of the Investigating Officer. The marriage between the parties
took place on 28.11.2004 and there was no such complaint ever lodged by
the girl or her family members with regard to any kind of dowry demands
being raised by the in-laws. As per the own case of the prosecution, Anju
had stayed in London for a period of one and half months alongwith her
husband and child and such a long stay is demonstrative of the fact that
there was no tension in the family with regard to at least any kind of
dowry demand. This also gets manifested from the fact that neither PW-1
nor PW-6 could reveal any figure of the amount which was allegedly paid
by them to their daughter Anju after she had returned back from London
alongwith her husband. There is no other specific allegation of monetary
demand levelled against the in-laws of Anju right from the inception of
her marriage except the said demand of Rs.10 lacs which was allegedly
made before she was sent to London.
112. PW-12 Amit in his cross-examination deposed that whenever his
sister visited his house at Dwarka after coming back from London, his
brother-in-law used to accompany Anju and they seemed to be a happy
couple. Further, the defence through the evidence of DW-4, Raj Kumar
proved on record that Anju was acting as a Manager in the Managing
Committee of Vikram Public School in place of her father-in-law Baljeet
Singh and used to accompany him to work in the said company till her
demise and through the defence of DW-5 - Naresh Kumar, the income
tax return of deceased Anju Rani for the financial years 2004-2005 to
2007-2008 were proved on record as Ex.DW-5/A to DW-5/A-4. DW-2 -
Mr. Om Pal, Assistant Manager of Syndicate Bank has also placed on
record the computer generated statement of the account of accused Sanjit
with effect from the period 1.9.2006 to 7.7.2010 in respect of his saving
bank account No. 90802010044127. The said statement reflects various
money transactions running into lacs. Taking an overall view of the kind
of vague, evasive and unspecific allegations levelled by the prosecution
witnesses and taking into consideration the said evidence adduced by the
defence, we do not find ourselves in agreement with the case set up by
the prosecution that Anju was being subjected to harassment because of
dowry demand. The Hon'ble Supreme Court of India and various High
Courts have already condemned such a tendency of the girl's parents to
level exaggerated and embellished allegations roping in every relative of
the husband to falsely implicate them by abusing the beneficial provision
of Section 498-A of IPC.
113. The Apex Court in a recent judgment in the case of Arnesh Kumar
v. State of Bihar , (2014) 8 SCALE 250 expressed its concern on the
growing misuse of the provision of Sec. 498A of the Indian Penal Code
and opined as under;
".. The institution of marriage is greatly revered in
this country. Section 498-A of the Indian Penal Code
was introduced with avowed object to combat the
menace of harassment to a woman at the hands of her
husband and his relatives. The fact that Section 498-
A is a cognizable and non-bailable offence has lent it
a dubious place of pride amongst the provisions that
are used as weapons rather than shield
by disgruntled wives. The simplest way to harass is to
get the husband and his relatives arrested under this
provision. In quite a number of cases, bed-ridden
grand-fathers and grand-mothers of the husbands,
their sisters living abroad for decades are arrested.
"Crime in India 2012 Statistics" published by
National Crime Records Bureau, Ministry of Home
Affairs shows arrest of 1,97,762 persons all over
India during the year 2012 for offence Under
Section 498-A of the Indian Penal Code, 9.4% more
than the year 2011. Nearly a quarter of those arrested
under this provision in 2012 were women i.e. 47,951
which depicts that mothers and sisters of the husbands
were liberally included in their arrest net. Its share is
6% out of the total persons arrested under the crimes
committed under Indian Penal Code. It accounts for
4.5% of total crimes committed under different
sections of penal code, more than any other crimes
excepting theft and hurt. The rate of charge-sheeting
in cases Under Section 498A, Indian Penal Code is as
high as 93.6%, while the conviction rate is only 15%,
which is lowest across all heads. As many as 3,72,706
cases are pending trial of which on current estimate,
nearly 3,17,000 are likely to result in acquittal.
6. Arrest brings humiliation, curtails freedom and
cast scars forever. Law makers know it so also the
police. There is a battle between the law makers and
the police and it seems that police has not learnt its
lesson; the lesson implicit and embodied in the Code
of Criminal Procedure. It has not come out of its
colonial image despite six decades of independence, it
is largely considered as a tool of harassment,
oppression and surely not considered a friend of
public. The need for caution in exercising the drastic
power of arrest has been emphasized time and again
by Courts but has not yielded desired result. Power to
arrest greatly contributes to its arrogance so also the
failure of the Magistracy to check it. Not only this, the
power of arrest is one of the lucrative sources of
police corruption. The attitude to arrest first and then
proceed with the rest is despicable. It has become a
handy tool to the police officers who lack sensitivity
or act with oblique motive."
In Preeti Gupta & Anr. V. State of Jharkand & Anr., (2010)7
SCC667, the Hon'ble Supreme Court held that the allegations on
the relatives and friends relating to harassment should be
scrutinised with great care and circumspection, the relevant para is
as follows:
"35.The ultimate object of justice is to find out the
truth and punish the guilty and protect the innocent.
To find out the truth is a Herculean task in majority of
these complaints. The tendency of implicating the
husband and all his immediate relations is also not
uncommon. At times, even after the conclusion of the
criminal trial, it is difficult to ascertain the real truth.
The courts have to be extremely careful and cautious
in dealing with these complaints and must take
pragmatic realities into consideration while dealing
with matrimonial cases. The allegations of harassment
of husband's close relations who had been living in
different cities and never visited or rarely visited the
place where the complainant resided would have an
entirely different complexion. The allegations of the
complainant are required to be scrutinised with great
care and circumspection.
35. Experience reveals that long and protracted
criminal trials lead to rancour, acrimony and
bitterness in the relationship amongst the parties. It
is also a matter of common knowledge that in cases
filed by the complainant if the husband or the
husband's relations had to remain in jail even for a
few days, it would ruin the chances of an amicable
settlement altogether. The process of suffering is
extremely long and painful.
37. Before parting with this case, we would like to
observe that a serious relook of the entire provision
is warranted by the legislature. It is also a matter of
common knowledge that exaggerated versions of the
incident are reflected in a large number of
complaints. The tendency of over implication is also
reflected in a very large number of cases. The
criminal trials lead to immense sufferings for all
concerned. Even ultimate acquittal in the trial may
also not be able to wipe out the deep scars of
suffering of ignominy. Unfortunately a large number
of these complaints have not only flooded the courts
but also have led to enormous social unrest affecting
peace, harmony and happiness of the society. It is
high time that the legislature must take into
consideration the pragmatic realities and make
suitable changes in the existing law. It is imperative
for the legislature to take into consideration the
informed public opinion and the pragmatic realities in
consideration and make necessary changes in the
relevant provisions of law."
113. The question now before us is if money was not the motive, then
what was the other motive which could drive these accused persons to kill
their daughter-in-law Anju. The motive on the part of the accused persons
was clearly spelt out by PW-6 - Satyawan in his very first statement
made by him immediately after the incident wherein he said that the
Anju's in-laws wanted to remarry Sanjit after eliminating his wife Anju,
who was no more capable of bearing a child. It is an undisputed fact that
at the time of her delivery, Anju had developed certain medical
complications and she was removed from Sharad Nursing Home to
Maharaja Agrasen Hospital. It is also an undisputed fact that the uterus of
Anju was removed due to medical complications after she gave birth to a
female child due to which she became incapable of giving birth to any
other child. PW-6 - Satyawan also stated that the moment it came to the
knowledge of the accused - Nirmala that in future, Anju will not be able
to bear a child she started taunting Anju by saying that she will re-marry
her son Sanjit after killing her. He further stated that he tried to reason
with Nirmala but she kept threatening and in fact Sanjit - husband of
Anju and Baljeet (father-in-law) also joined Nirmala in harassing Anju on
this count. PW-6, in his Court deposition remained consistent on this
stand. PW-1 in her statement recorded under Section 161 Cr.P.C. also
stated the same and she further added that many a times she especially
flew to Delhi to make them understand on this count on this court. In her
Court deposition also, she remained consistent in reiterating the
allegations made under Section 161 Cr.P.C. on the said aspect. She also
mentioned exact taunts and accusations which were being made by the in-
laws to Anju and the same were "tu maa nahi ban sakti...Tu vansh nahi
chala sakti....Tujhe hum maar denge."
114. Motive is relevant in all criminal cases and it assumes more
significance when the case of the prosecution rests on circumstantial
evidence and it certainly lends huge support to corroborate the testimony
of an eye witness. The legal position regarding the substantiation of
motive as an essential requirement for bringing home the guilt of the
accused is fairly well settled by a catena of decisions of the Apex Court
and High Courts of this country. In a criminal case, a credible eye witness
account can be the sole basis for conviction of an accused person, even in
the absence of proof of any motive on the part of the assailants. Motive
assumes considerable significance where the prosecution relies upon
circumstantial evidence as in such cases, proof of motive itself constitutes
a link in the chain of circumstances upon which the prosecution may rely.
Motive of the crime, however adequate cannot by itself sustain a criminal
charge and conversely if the evidence against the accused is clear and
settled, failure on the part of the prosecution to establish any motive is of
no consequence.
115. In order to examine the importance of motive in a criminal offence;
the contours within which it must be examined and the nature of the
evidence required to establish it, let us refer to a few authorities cited by
the Hon'ble Supreme Court.
116. In State of U.P. v. Babu Ram, (2000) 4 SCC 515, the Supreme
Court has stated that ― "motive is a relevant factor in all criminal cases
whether based on the testimony of eyewitnesses or circumstantial
evidence. The question in this regard is whether the prosecution must fail
because it failed to prove the motive or whether inability to prove the
motive would weaken the prosecution to any perceptible limit."
117. In Sheo Shankar Singh v. State of Jharkhand and Anr., (2011) 3
SCC 654 , the Supreme Court has noticed the difference in the
significance of proof of motive where prosecution is based upon
circumstantial evidence and where it relies upon the testimony of eye
witnesses in following terms:
15. The legal position regarding proof of motive as an
essential requirement for bringing home the guilt of
the accused is fairly well settled by a long line of
decisions of this Court. These decisions have made a
clear distinction between cases where the prosecution
relies upon circumstantial evidence on the one hand
and those where it relies upon the testimony of
eyewitnesses on the other. In the former category of
cases proof of motive is given the importance it
deserves, for proof of a motive itself constitutes a link
in the chain of circumstances upon which the
prosecution may rely. Proof of motive, however,
recedes into the background in cases where the
prosecution relies upon an eyewitness account of the
occurrence. That is because if the court upon a proper
appraisal of the deposition of the eyewitnesses comes
to the conclusion that the version given by them is
credible, absence of evidence to prove the motive is
rendered inconsequential. Conversely, even if the
prosecution succeeds in establishing a strong motive
for the commission of the offence, but the evidence of
the eyewitnesses is found unreliable or unworthy of
credit, existence of a motive does not by itself provide
a safe basis for convicting the accused. That does not,
however, mean that proof of motive even in a case
which rests on an eyewitness account does not lend
strength to the prosecution case or fortify the court in
its ultimate conclusion. Proof of motive in such a
situation certainly helps the prosecution and supports
the eyewitnesses. See Shivaji Genu Mohite v. State of
Maharashtra [(1973) 3 SCC 219 : 1973 SCC (Cri)
214] , Hari Shanker v. State of U.P. [(1996) 9 SCC 40
: 1996 SCC (Cri) 913] and State of U.P. v. Kishanpal
[(2008) 16 SCC (2010) 4 SCC (Cri) 182]
118. On the aspect of importance of motive in a case of circumstantial
evidence, the judgment of the Supreme Court in (2011) 12 SCC 554,
Amitava Banerjee v. State of West Bengal also sheds valuable light. The
legal position as laid down by Wills in his book 'Circumstantial
Evidence' and in prior judicial pronouncements was relied upon by the
court which may usefully be extracted and reads as follows:
―41. Motive for the commission of an offence no
doubt assumes greater importance in cases resting
on circumstantial evidence than those in which direct
evidence regarding commission of the offence is
available. And yet failure to prove motive in cases
resting on circumstantial evidence is not fatal by
itself. All that the absence of motive for the
commission of the offence results in is that the court
shall have to be more careful and circumspect in
scrutinizing the evidence to ensure that suspicion
does not take the place of proof while finding the
accused guilty.
42. Absence of motive in a case depending entirely
on circumstantial evidence is a factor that shall no
doubt weigh in favour of the accused, but what the
courts need to remember is that motive is a matter
which is primarily known to the accused and which
the prosecution may at times find difficult to explain
or establish by substantive evidence.
119. In light of the facts of the present case, all these accused persons
are members of the in-law's family of the deceased and without there
being any strong motive on their part, they would not have joined hands
in carrying out such a dubious plan of murdering their daughter-in-law in
such a brutal manner. All these accused were desperate to have another
male child in the family who could carry forward the family chain,
however their dream was shattered after the uterus of Anju was removed
and therefore to accomplish their wish to re-marry Sanjit , they took the
life of young Anju for no fault of hers. Motive in the present case also
assumes significance as the eye witness in the present case was of a
tender age and as already mentioned above, without an adequate
corroborative evidence giving strength to the account of child witness,
this Court will be hesitant to base the conviction of the accused persons
merely on the basis of the sole testimony of the said child witness.
120. That brings us to the most critical part of the case in which we shall
examine whether the prosecution has succeeded in proving the charge of
murder against all the accused persons beyond any shadow of doubt.
There cannot be any disagreement about the legal position that the burden
remains on the prosecution to prove the guilt of the accused, no matter
how diabolic the crime may be. It is also a settled principle of criminal
jurisprudence that more serious the offence, the stricter the degree of
proof, since a higher degree of assurance is needed to convict the
accused. It has also been held by the Supreme Court in numerous
judgments that the Courts have to be extra cautious to not get swayed by
strong sentiments of repulsions and disgust when faced with crimes of
depravity (Ref: State Through C.B.I vs Mahender Singh Dahiya,
AIR2011SC1017) . It is in such cases that the Court needs to be on its
guard to ensure that conclusions are reached not by emotions but are
based on evidence produced in the Court. Suspicion no matter how strong
cannot and should not be permitted to take the place of proof (Ref: State
vs. Mohinder Singh, (2011) 3 SCC 109 & Mansarover Singh Rai vs.
State of West Bengal, (2003) 12 SCC 377).
121. In Swarn Singh Rattan Singh vs. State of Punjab, AIR 1957 SC
637, the Apex Court held that it is a matter of regret that a foul cold-
blooded and cruel murder like the present should go unpunished. There
may also be an element of truth in the prosecution story against the
accused. Considering as a whole the prosecution story may be true, but
between 'may be' and 'must be' true, there is inevitably long distance to
travel and the whole of this distance must be covered by the prosecution
by legal, reliable and unimpeachable evidence, before an accused can be
convicted. It would be important here to refer to the judgment of the
Apex Court in the case of Trimukh Maroti Kirkan vs. State of
Maharashtra reported in (2006) 10 SCC 681, wherein the Court took a
view that burden of the prosecution to establish its case would be
comparatively lighter where an offence like murder is committed in
secrecy inside a house;. Relevant paras of said judgment are reproduced
as under:-
"10. In the case in hand there is no eye-witness of the occurrence and
the case of the prosecution rests on circumstantial evidence. The
normal principle in a case based on circumstantial evidence is that
the circumstances from which an inference of guilt is sought to be
drawn must be cogently and firmly established; that those
circumstances should be of a definite tendency unerringly pointing
towards the guilt of the accused; that the circumstances taken
cumulatively should form a chain so complete that there is no escape
from the conclusion that within all human probability the crime was
committed by the accused and they should be incapable of
explanation on any hypothesis other than that of the guilt of the
accused and inconsistent with his innocence.
11. The demand for dowry or money from the parents of the bride has
shown a phenomenal increase in last few years. Cases are frequently
coming before the Courts, where the husband or in-laws have gone to
the extent of killing the bride if the demand is not met. These crimes
are generally committed in complete secrecy inside the house and it
becomes very difficult for the prosecution to lead evidence. No
member of the family, even if he is a witness of the crime, would come
forward to depose against another family member. The neighbours,
whose evidence may be of some assistance, are generally reluctant to
depose in Court as they want to keep aloof and do not want to
antagonize a neighbourhood family. The parents or other family
members of the bride being away from the scene of commission of
crime are not in a position to give direct evidence which may
inculpate the real accused except regarding the demand of money or
dowry and harassment caused to the bride. But, it does not mean that
a crime committed in secrecy or inside the house should go
unpunished."
122. In State of Punjab vs. Karnail Singh, (2003) 11 SCC 271, the
Apex Court took a view that the law does not enjoin a duty on the
prosecution to lead evidence of such character which is almost impossible
or extremely difficult to be led. The duty of the prosecution is to lead
such evidence which it is capable of leading, having regards to the facts
and circumstances of the case.
123. In State of West Bengal vs. Mir Mohd Omar & Ors., (2000) 8
SCC 382, the Apex Court took note of the provisions of Section 106 of
the Indian Evidence Act and laid down the following principles:
"The pristine rule that the burden of proof is on the
prosecution to prove the guilt of the accused should
not be taken as a fossilized doctrine as though it
admits no process of intelligent reasoning. The
doctrine of presumption is not alien to the above rule,
nor would it impair the temper of the rule. On the
other hand, if the traditional rule relating to burden of
proof of the prosecution is allowed to be wrapped in
pedantic coverage the offenders in serious offences
would be the major beneficiaries, and the society
would be the casualty."
124. In Ganesh Lal vs. State of Maharashtra, (1992) 3 SCC 106, the
appellant was prosecuted for the murder of his wife which took place
inside his house. It was observed that when the death had occurred in his
custody, the appellant is under an obligation to give a plausible
explanation for the cause of her death in his statement under Section 313
Cr.P.C. The mere denial of the prosecution case coupled with absence of
any explanation were held to be inconsistent with the innocence of the
accused but consistent with the hypothesis that the appellant is a prime
accused in the commission of murder of his wife.
125. In State of U.P. Vs. Ashok Kumar Srivastava, 1982 SC 840, the
Apex Court while dealing with the well settled principles of proving the
case based on circumstantial evidence took a view that the circumstances
relied upon must be found to be fully established and the cumulative
effect of all the facts so established must be consistent only with the
hypothesis of guilt. But this is not to say that the prosecution must meet
any and every hypothesis put forward by the accused, however,
farfetched and fanciful might be; nor does it mean that prosecution
evidence must be rejected on the slightest doubt because the law permits
rejection if the doubt is reasonable and not otherwise.
126. Keeping in view the said legal principles in our mind and at the
same time not forgetting the fact that the present case is not merely based
on circumstantial evidence but on the ocular testimony of a child witness
as well, let us examine as to whether there exist strong corroborative and
incriminating circumstances which can come in the aid of the testimony
of the said child witness and also against the other accused persons who
were not named by the child in her testimony.
127. In the case in hand, Husband, parents in-law, sister in-law and
brother in-law are in the dock facing the charge of murder. On the
morning of 29.10.2008, undeniably, every member of the family was
present at the house except Meena who was staying with her husband-
Rajesh at her matrimonial house. As per the defence, DW-3 Mr.
Sikander, who is the real brother of Nirmala (mother in-law of Anju)
came to the house of his sister in the morning of 29.10.2008 so as to
take her with him to celebrate 'Bhaiyyadooj' on the following day, i.e., on
30.10.2008. DW-3 Sikander, in his deposition stated that when he
reached in the morning his sister Nirmala, her husband Baljeet, her son
Sanjeet, her daughter in-law Anju (deceased) and her granddaughter
Poorvi were present in the house. He further deposed that at about 10.00
a.m. after taking tea etc. Baljeet and Sanjeet went for their job while
Nirmala got ready to accompany him to his house. He further deposed
that at that time baby Poorvi started weeping in order to accompany
Nirmala and accordingly he brought Nirmala and Poorvi with him to his
house. It is not the case of these accused persons that they were not
present at their house on the morning of 29.10.2008 as can be manifested
from their statements recorded under Section 313 Cr.P.C. Their presence
at the matrimonial house was thus very natural and conspicuous. It is also
not in dispute that 29.10.2008 was a festive day, it being "Goverdhan
Pooja". The murder of Anju took place inside the matrimonial house and
not outside. PW-16 SI Pradeep Kumar was the police officer who first
reached at the spot of the crime along with Constable Ved Prakash. In the
words of PW-16 SI Pradeep Kumar as narrated by him in his Court
deposition when he reached the room, he found the dead body of a lady
and a lot of blood lying on the floor , also there were many blood
wounds on the body of the deceased. The investigation of this case was
entrusted to PW-19 Inspector Prakash Chand. He had also reached at the
site after having received information about the entrustment of the
investigation to him at about 8.30 p.m. The crime team and the dog squad
had also reached the spot of the crime. In the presence of the crime team,
the following articles which were lying at the spot, were seized by the
police.
i. One blood stained knife,
ii. one blood stained dagger,
iii. blood stained broken .....and bangles type
Choodi of red and yellow colour,
iv. blood stained towel,
v. Six pass books (2 in the name of Sanjeet, 3 in
the name of Baljeet and 1 in the name of
Nirmala),
vi. Two pairs of Hawai Chappal of mark Relaxo
of pink and light blue colour and one pair of
blue colour found blood stained,
vii. Blood stained earth,
viii. Earth control,
ix. Table cover (Mej poss),
x. Blood sample and water filter.
128. PW-16 SI Pradeep Kumar had recorded the statement of PW-6
Satyawan, father of the deceased, and he had endorsed his statement vide
Ex. PW-16/A and rukka was handed over by him to Constable Ved
Prakash for registration of FIR and information about the said incident
was given to the area SDM by PW-16 SI Pradeep Kumar at about 11.30
p.m. on 29.10.2008. The SDM had visited the site at about 9.00 a.m. on
30.10.2008 alongwith the area SHO/IO. He also went to the mortuary and
got the post mortem of the dead body of the deceased/Anju conducted in
his presence. As per the deposition of SDM and his brief report proved on
record as Ex. PW-2/B, he directed the IO to produce the parents of the
deceased before him but they were produced before the SDM only on
03.11.2008. The statements of the parents of the deceased were recorded
by the SDM on 03.11.2008. Based on the statement of PW-1 Smt.
Pushpa and the supplementary statement of PW-6 Satyawan, the SDM
directed the police to include the name of sister in-law Ms. Meena and
her husband Rajesh also in the said FIR.
129. On 30.10.2008 at about 6.00 p.m. IO Inspector Prakash Chand
started to search for the accused persons and when he reached Mundaka
village along with the members of the raiding party, secret information
was received by him that all the accused persons were present at their
house. The police party accordingly reached at the house of the accused
persons and arrested all the three accused persons from their house. All
the three accused persons, i.e., Nirmala, Baljeet and Sanjeet made their
separate disclosure statements. Nirmala got recovered a salwar suit along
with Chunni from one of the rooms of the house in question, Rs.50, 000/-
and a gold chain from a box which was found lying in the said room. The
police had also seized some pieces of Choodis which accused Nirmala
was found wearing at the time of her arrest. These broken pieces of
Choodis along with seizure memo were separately sealed with the seal of
Inspector Prakash Chand. The IO of the case had also recorded the
statement of two more witnesses, i.e., PW-.12, Amit and PW-5 Harinder
on 15.11.2008. The other two accused persons namely Meena and Rajesh
were apprehended by the police on 12.02.2009 on the basis of secret
information received at their end.
130. The blood group of the deceased was A+ve and as per the FSL
reports proved on record as Ex. PW-9/A and Ex. PW-9/B, knife, dagger,
broken bangles pieces, two pairs of Hawai Chappal and a lady's shirt,
printed salwar of a lady and one Chunni all of them were found to
contain A+ve blood which tallied with the blood group found on the
clothes which the deceased was wearing at the time of her murder which
are marked as, Exs. 10a, 10b, 10c and 10d respectively.
131. Out of all the accused persons, Nirmala and Meena were
specifically named by the said eye witness not only in her statement
under Section 161 Cr.P.C. but in her Court deposition as well. The
accused Rajesh was named by PW-10 only in her Court deposition and
not at the time of making the statement under Section 161 Cr.P.C. There
were two weapons of offence which were found and recovered from the
spot of the crime, one being the knife and the other being a dagger. This
shows that there were two assailants at least who committed the said
crime and this can also be manifested from the fact that at least 20 stab
injuries were inflicted on the body of the deceased. The broken pieces of
Choodis which were recovered from the spot of the crime and found to be
carrying blood of the deceased as per the FSL report tallied with the
Choodis which Nirmala was wearing at the time of her arrest, as per the
seizure memo proved on record as Ex. PW-6/K.
132. We are not in agreement with the contention raised by the counsel
for the accused persons that the broken bangles shown in the hands of
Nirmala could be easily manoeuvred by the police as such kind of
bangles were easily available in the market as the defence cannot
reasonably dispute the fact that at least the police could not have
tampered with the broken bangles which were blood stained and
recovered from the spot of the crime.
133. The SDM in his brief report proved on record as Ex. PW-2/B
succinctly stated that he had seen the dead body of Ms. Anju Rani during
her post mortem in Sanjay Gandhi Hospital, Delhi on 30.10.2008 and
Anju was of a strong built. He further observed that a lady of such a
strong built was over powered and brutally killed which could not be a
single person's job. This fact regarding the physique and built of the
deceased has not been disputed by the defence and in this background the
involvement of at least two assailants in committing the said crime cannot
be ruled out.
134. All the three accused persons, namely, Baljeet, Sanjeet and
Nirmala were members of the same family and were residing under the
same roof along with deceased Anju and therefore, their presence at the
house was quite natural and expected, more particularly when the same
happened to be a festive day of 'Goverdhan Pooja'. They did not dispute
their presence on the morning of 29.10.2008 and also immediately after
the murder. So where were they in the intervening time? To show their
absence from the house, these accused persons had introduced the
evidence of DW-3 Sikander. Not only did they try to play smart in order
to show the presence of baby Poorvi with DW-3 Sikander without
realising the fact that it would be highly improbable that the child of two
and half years would stay overnight at the house of a stranger that too
after parting with the company of her mother and father. It is DW-3
Sikander, who took upon him the burden of showing not only the absence
of Nirmala and Poorvi but also of Baljeet and Sanjeet by saying that they
left for their job when he was present at the house at about 10.00 a.m. to
take his sister Nirmala for celebrating Bhaiyyadooj on the following day.
These two accused persons Sanjeet and Baljeet in their statements
recorded under Section 313 Cr.P.C. also took the same defence. They
also stated that Nirmala was supposed to return in the morning of
30.10.2008 so that on the next day Anju could also go to her parental
house for celebrating Bhaiyyadooj. They further stated that they went for
their work and Nirmala along with the child- Poorvi accompanied DW-3
Sikander, to his house. They further stated that in the evening when they
returned to their house they found a lot of people standing there and after
sometime the parents of Anju reached the spot. They also found that
Nirmala too had reached there by that time. They further stated that Anju
was lying in a pool of blood inside the house and parents' in-law started
abusing them and in fact Anju's father fought with Baljeet. They further
stated that Nirmala was holding Poorvi in one hand and Sikander was
standing next to her and then they were taken to the police station and all
through the night they were made to sit in the police station and later on
were falsely implicated in the said case.
135. After a fair reading of evidence adduced by DW-3 - Sikander, and
the defence raised by the accused - Sanjeet, Baljeet and Nirmala in their
statements recorded under Section 313 Cr.P.C., we have no hesitation in
holding that DW-3 Sikander, is a wholly unreliable witness and his
testimony is in no way unswerving or has any exactitude and the same is
the position of the defence raised by the said accused person in their
respective statements recorded under section 313 Cr.P.C. Mr. Sikander
(DW-3) claimed himself to be the real brother of the accused - Nirmala.
He was a resident of Village Saharanpur. Nirmala had two more brothers
who were residing near her place. As per the deposition of DW-3 and also
as per the statement made by the three accused persons, DW-3 had visited
the residence of his sister to take her with him to celebrate Bhaiyya Dooj
on the next day, i.e., 30th October 2008. It is also their case that DW-3
received telephonic information about the mishappening at the house of
Nirmala and that they should reach the house immediately. He told this to
his sister and then both got worried and thereafter, reached Nirmala's
house, where they found the dead body of Anju in the pool of blood
inside the house.
136. We feel that DW-3 is a plotted witness and the said accused
persons have raised a false defence, the following points amply prove the
same:-
a) It is highly improbable that Poorvi, a child of two and half
years would insist to accompany her grandmother to stay at
the place of her relative over night by parting the company
of her own parents.
b) DW-3 in his cross-examination could not tell the number of
times prior to 29th October 2008, when he had brought his
sister to his house to celebrate Bhaiyya Dooj.
c) DW-3 also failed to state as to whether Anju - mother of
Poorvi had readily agreed to allow her daughter Poorvi to
accompany them for overnight stay.
d) DW-3 also failed to disclose the identity of a person from
whom he had received the telephonic information about the
mishap in the house of Smt. Nirmala.
e) DW-3 also failed to explain as to how the informant knew
his telephone number for informing him about the said
incident.
f) Why DW-3 and Nirmala did not contact Sanjeet and Baljeet
who were having their independent mobiles about the
occurrence of such a mishap in the house.
g) No complaint was made by DW-3 against the alleged illegal
arrest of Nirmala, Sanjeet and Baljeet by the police on the
night of 29th October 2008.
h) No complaint was lodged by DW-3 to the police that he was
threatened by some police officer that they would arrest him
if he did not leave the police station, when he visited the
police station on the next day. He also did not take the help
of his son who was aged about 26 years to lodge the
complaint with any government authority about the alleged
false implication of Nirmala in the said criminal case.
i) Failure of DW-3 to disclose the name of the police officer
who had allegedly threatened him.
j) As per his deposition in his cross-examination, DW-3 had
received the information about the incident at about 6 PM at
29th October 2008 while as per DD No.34A; the Police
Station had received the information about the incident from
the PCR at 6.40 PM.
k) DW-3 denied having any knowledge of Rajesh or his
telephone number, although he was the real maternal uncle
of Meena, wife of Rajesh.
137. The aforesaid incongruities in DW-3's conduct manifestly shows
that he was not an ingenuous witness and was introduced by the defence
only to prove the absence of Nirmala, Poorvi , Baljeet and Sanjeet at the
time of the commission of crime but he miserably failed in his attempt. It
is aptly said "man may lie, but the circumstances don't".
138. As already discussed above, the defence could produce no evidence
other than the DW-3 Sikander, to prove their absence at the time of the
commission of crime. In fact, the accused Baljeet and Sanjit brought no
evidence to show the nature of their job, nor even their place of work.
They also did not produce any evidence to prove that they were working
till late hours on the evening of 29th October 2008 which was otherwise a
festive day, it being Goverdhan Pooja. PW-1 in her deposition
categorically stated that her son in law Sanjit was not doing any work. It
is a matter of record that Baljeet and Sanjit had returned to their house
just like routine to pretend as if they had no prior knowledge about the
murder of Anju having taken place. As per the deposition of DW-3, Baljit
and Sanjit had reached just after the arrival of DW-3 with Nirmala and
Poorvi. It is also quite surprising that nobody informed them about the
incident but rather informed DW-3. DW-3 Sikander must not have been a
known face in the locality and his telephone number could not have been
known to the people residing in the locality. The aforesaid conduct of
accused Nirmala, Baljeet and Sanjit in a case of such a grave nature
where the offence has been committed inside the matrimonial house,
certainly strengthens the case of the prosecution and the
contemporaneous conduct and surrounding circumstances can be
accepted as relevant facts on the matter in issue in terms of the principle
of res gestae as envisaged under Section 6 of Indian Evidence Act, 1872.
139. In a recent judgment in the case of Raj Kumar vs. State of M.P.,
2014 CriLJ 1943, the Apex Court reiterated the view that where the
accused fails to give any explanation in his statement recorded under
Section 313 Cr. P.C. regarding any incriminating material that has been
produced against him, the Court will be entitled to draw such adverse
inference against the accused as may be permissible in law. Relevant para
of the said judgment is reproduced as under:-
"The accused has a duty to furnish an explanation in
his statement Under Section 313 Code of Criminal
Procedure regarding any incriminating material that
has been produced against him. If the accused has
been given the freedom to remain silent during the
investigation as well as before the Court, then the
accused may choose to maintain silence or even
remain in complete denial when his statement Under
Section 313 Code of Criminal Procedure is being
recorded. However, in such an event, the Court would
be entitled to draw an inference, including such
adverse inference against the accused as may be
permissible in accordance with law."
140. In Raj Kumar (supra), the Court also took a view that once the
accused has not denied his presence in the house on the night when the
incident had taken place, then he was bound to explain as to under what
circumstances the victim had died. After placing reliance on the judgment
of the Apex Court in the case of Prithpal Singh vs. State of Punjab &
Ors., (2012)1 SCC 10 and Mir Mohd. Omar (supra), the Apex Court in
the following para held as under:
"... if fact is especially in the knowledge of any
person, then burden of proving that fact is upon him.
It is impossible for the prosecution to prove certain
facts particularly within the knowledge of the accused.
Section 106 is not intended to relieve the prosecution
of its burden to prove the guilt of the accused beyond
reasonable doubt. But the section would apply to
cases where the prosecution has succeeded in proving
facts from which a reasonable inference can be drawn
regarding the existence of certain other facts, unless
the accused by virtue of his special knowledge
regarding such facts, failed to offer any explanation
which might drive the Court to draw a different
inference. Section 106 of the Evidence Act is designed
to meet certain exceptional cases, in which, it would
be impossible for the prosecution to establish certain
facts which are particularly within the knowledge of
the accused."
141. In the facts of the present case also, the prosecution with the help
of ocular evidence of a child witness and other incriminating
circumstances duly corroborated by the evidence of recovery, medical
and forensic evidence, successfully discharged its initial burden to
establish the guilt on the part of Nirmala, Sanjit and Baljeet in the
commission of the said crime of murder of Anju, on the said date inside
the matrimonial house on the evening of 29th October 2008 in a thickly
populated locality.
142. These accused persons in fact offered a false explanation through
the evidence of DW-3 and in their statement recorded under Section 313
of Cr.P.C. to show their own absence as well as that of baby Poorvi at
the time of commission of crime and such false explanation offered by
them forms an added link in the chain of incriminating circumstances to
prove their guilt in the commission of crime, if read with the ocular
evidence of the child Poorvi.
143. We again remind ourselves of the authoritative pronouncement of
the Apex Court in Trimukh (supra) case where the Court took a view
that where an offence like murder is committed in secrecy, inside a house
then in such like cases it becomes very difficult for the prosecution to
lead evidence as no member of the family, even if he is a witness of the
crime, would come forward to depose against another family member.
The Court further held that nature and amount of evidence to be led by
the prosecution to establish the charge cannot be of the same degree as is
required in other cases of circumstantial evidence. The Apex Court
further held that the burden on prosecution is comparatively of lighter
character than the corresponding burden on the inmates of the house to
give cogent explanation as to how the crime was committed in terms of
Section 106 of the Indian Evidence Act, 1872. Court also held that
inmates of the house cannot get away by simply keeping quiet and
offering no explanation on the premise that the burden to establish its
case lies entirely upon the prosecution and there is no duty at all on an
accused to offer any explanation.
144. The Apex Court in the case of Shambu Nath Mehra vs The State
Of Ajmer 1956 AIR 404 while explaining the scope of Section 106 of the
Indian Evidence Act in the following para held as under:-
"That s. 106 of the Evidence Act does not abrogate the
well- established rule of criminal law that except in
very exceptional classes of cases the burden that lies on
the prosecution to prove its case never shifts and s, 106
is not intended to relieve the prosecution of that
burden.' On the contrary, it seeks to meet certain
exceptional cases where it is impossible, or
disproportionately difficult, for the prosecution to
establish facts which are especially within the
knowledge of the accused and which can be proved by
him without difficulty or inconvenience. But when
knowledge of such facts is equally available to the
prosecution if it chooses to exercise due diligence, they
cannot be said to be especially within the knowledge of
the accused and the section cannot apply."
145. In a recent judgement of the Apex Court in the case of Jogender
Yadav vs. State of Bihar, (2014) 2 SCC (Cri) 255, wherein the deceased
was in the custody of the accused but disappeared from the house, and
later her dead body was found in the river, the Court held that all the
circumstances leading to her unnatural death were within the special and
personal knowledge of the accused, which they chose not to disclose and
instead they gave a totally false explanation that the deceased had gone
for a bath where she slipped and died after getting drowned in the water.
146. Taking into consideration the entirety of the facts and
circumstances of the case, which were proved on record, we find that the
prosecution succeeded in establishing the case against Nirmala, Baljeet,
and Sanjeet in committing the murder of the deceased Anju inside the
matrimonial house on the evening of 29th October, 2008. The motive of
these accused persons was clearly proved on record. The testimony of
child witness as already stated above is inspiring and trustworthy. The
admitted presence of Nirmala, Baljeet and Sanjeet at their house on the
morning of 29.10.08 as were last seen in the presence of the deceased
and DW-3, and their immediate presence after the commission of the
crime, failure on the part of the accused persons to give any explanation
as to how the crime was committed inside the matrimonial house, no
evidence to establish the case of robbery/dacoity, as jewellery items worn
by the deceased Anju were found intact and amount of Rs.50,000/- which
was recovered alongwith one gold chain, one blood stained suit found
intact in cupboard and most of the other circumstances discussed above
and in the trial Court judgment, duly supported by medical and forensic
evidence on record unerringly establishes the culpability of these accused
persons in committing the said crime.
147. The accused Meena is nanad of the deceased, who got married a
few years back and was thus not residing in her maternal home on regular
basis .Baby Poorvi (PW-10) in her statement recorded under Section 161
Cr. P.C. and court deposition did refer to the presence of Meena
alongwith Nirmala at the time of commission of crime. However, we do
not find that any credible evidence has surfaced which could corroborate
the testimony of child witness Poorvi (PW-10) to hold accused-Meena
guilty for committing the said offence of murder. In her testimony the
said child witness had assigned her the role of catching hold of the
deceased Anju while the other co-accused Nirmala started inflicting knife
blows indiscriminately on the front portion of the body of the deceased.
Except this evidence of the child witness Poorvi, the investigating agency
had failed to collect any other evidence which could establish the
complicity of Meena in the commission of the said crime beyond any
shadow of doubt. Meena was a married woman and was residing
separately at her matrimonial home along with her husband and therefore,
austerely speaking she was not a part of the family of her brother to owe
an explanation in order to disclose her whereabouts at the time of the
commission of the crime. Meena was not even named in the first
statement made by Shri Satyawan Singh (PW-6) based on which the FIR
was recorded and her name was referred in the statement of Pushpa Rani
(PW-1) and in the supplementary statement of PW-6 which were
recorded by the police on 3rd November, 2008. Here also one would
notice that so far as the statement of Smt. Pushpa Rani (PW-1) is
concerned she only named Meena, along with other members of the
deceased's in-laws' family for causing harassment to the deceased for
want of sufficient dowry. No other specific allegation was levelled by
Smt. Pushpa Rani in her statement dated 3rd November, 2008 against
Meena, although, in general she referred that atrocities were committed
upon her daughter by her in-laws. Satyawan in his said supplementary
statement also did mention the name of Meena along with Nirmala for
extending threats to the deceased Anju for not bringing an amount of
Rs.10 lacs from her parents and also because of her not being able to give
birth to a child again but in the absence of any specific allegations
levelled by these witnesses against Meena, we are not convinced that
Meena can be held guilty for an offence of such a serious nature based on
the bald statements of these witnesses. We have already stated that in the
absence of any clinching evidence which corroborates the testimony of
the child witness, we would be hesitant to base the conviction of the
accused persons merely based on the sole testimony of the said child
witness. We thus find ourselves in agreement with the view taken by the
learned trial Court in acquitting the accused Meena so far offence under
Section 302-IPC is concerned.
148. Before we deal with various contentions raised by the counsel for
the accused persons, we are constrained to observe that the investigating
agency with a view to bolster the case of the prosecution had introduced
two witnesses i.e. PW-5 and PW-12, whose statements were recorded by
the police after a gap of two and a half months. Amit (PW-12) is the real
brother of the deceased while Harinder Singh (PW-5) is the cousin of the
deceased. These witnesses were available all through from the date of the
incident but their statements with regard to their alleged visit at the place
of their sister Anju on the evening of 26th October, 2008 were recorded by
the police on 15th January, 2009 i.e. after a gap of two and a half months.
We hardly find any justification for these witnesses to stay back if they
had paid a visit to their sister on the evening of 26 th October, 2008 and
during the said visit their sister allegedly told them about the said sinister
plan of her in-laws to physically eliminate her for not bringing Rs.10 lacs
after her visit to London and also because she could not become a mother
any more. The introduction of these witnesses by the prosecution is also
manifest from the fact that there is no reference of their alleged visit on
26th October, 2008 in the statements made by the parents of Anju to the
police, despite the fact that as per the testimony of PW-5 he had apprised
his maternal uncle Satyawan as to what had been transpired in the
evening of 26th October, 2008. The witness PW-12Amit in any case being
the real brother of Anju certainly would have told his parents as to what
had happened in the evening of 26th October, 2008. There is nothing new
and it is a very common practice of the police that instead of putting their
brains in carrying out proper investigation into a crime with the help of
modern and scientific techniques they more often indulge themselves to
look for easy solutions without realising the fact that such dubious
methods of police are not hidden from anyone. We, thus attach no
credence or credibility to the evidence of the two witnesses i.e. PW-5 and
PW-12. However, even after ignoring their evidence, we find no
difficulty in affirming the view taken by the learned trial Court so far as
the role of accused Nirmala, Baljeet and Sanjeet is concerned in the
commission of the said crime.
149. Coming to some of the contentions raised by the counsel who
represented the main accused persons, namely, Nirmala, Baljeet and
Sanjeet. At the very outset, we may say that various contentions raised by
the counsel for the accused persons could have some significance, had the
case of the prosecution been rested on mere circumstantial evidence but
not supported by ocular evidence of an eye witness. Mr. Hariharan,
Senior Counsel appearing for accused Nirmala laid much emphasis on the
argument that the prosecution deliberately failed to prove on record the
PCR Form No.1 although the same was filed along with the chargesheet.
Counsel further submits that the said crime of murder was reported by
one Rajbir at 18:43:20 hours and this PCR Form further records the
arrival of the Police at the spot at 23:3:20 hours on 29 th October, 2008
while rukka for registration of the FIR was sent by IO at 8.30 p.m. and
information at the Police Station was received at 2100 hours. Counsel
also pointed out that if the rukka was received at Police Station on 29 th
October, 2008 at 2100 hours then how come the date of the registration
mentioned in the FIR was 30th October, 2008. Counsel also submitted that
the said PCR Form though was not proved by the prosecution but the
same can be read in favour of the accused. We find no merit in this
contention raised by Mr. Hariharan, Senior Counsel for accused Nirmala,
as the defence never confronted the said PCR Form to any of the Police
witness especially the IO of the case. This PCR Form appears to be a
highly suspicious document as various timings recorded therein do not
tally with the timings as proved on record by the Police and other private
witnesses. Surprisingly, this PCR Form also referred to DD No.34A
which was registered at 18:40 on 29th October, 2008 at Police Station
Nangloi, Delhi and this DD was proved on record as Ex. PW-3/B. This
DD No.34A is also based on the information received by PW 16 SI
Pradeep Kumar through a PCR call. Another reason for doubting the
contents of the said PCR Form No.1 is that it records the arrival of the
Police at the spot at 23:3:20 hours on 29th October, 2008 and this again is
not possible because when as per this PCR Form information from one
Rajbir was recorded at 18:43:20 then the Police would not reach at the
spot after a gap of more than two hours. The exact picture with regard to
the contents of the said PCR Form No.1 could be cleared only with the
confrontation of the said document to the IO of the case and other Police
witnesses and having not done so the defence cannot take refuge under
the said PCR Form to cast a doubt on the prosecution case. So far as the
date of registration of the FIR is concerned, we have no doubt in saying
that the FIR was registered on 29th October, 2008 and recording of wrong
date on the front page of the FIR is hardly of any significance. On every
other document, the date of registration of the FIR is mentioned as 29 th
October, 2008.
150. One of the contentions raised by Mr. Hariharan, Senior Counsel for
accused Nirmala was that PW-1 Pushpa was the first person who had
reached at the spot and she saw all the accused persons present at the spot
yet she did not choose to get them arrested. Counsel also argued that even
PW-16 SI Pradeep Kumar did not arrest the accused persons after having
recorded the statement of PW-6 Satyawan who named the said accused
persons for having murdered his daughter. This argument of the counsel
for the appellant is also misconceived as there is nothing wrong if in a
given case the Police takes some time to finally arrest some persons even
though named in the FIR particularly where there is a remote possibility
of the accused persons fleeing away and also where before arresting
accused persons the Police is in the process of collecting some evidence
to toughen its hands in arresting the actual culprits of the crime.
151. Another contention raised by the counsel for the appellant was that
SI Pradeep Kumar had conducted the house search without following the
mandate of Section 100(4) of the Cr. P.C. as he failed to call upon two or
more independent and respectable habitants of the locality to attend the
witnesses to the search. This Section 100(4) of the Cr. P.C. would not be
applicable to the facts of the present case as the said search in question
had taken place at the spot of the crime which was lying open and easily
accessible to one and all. While the applicability of Section 100(4) of the
Cr. P.C. is in a case where the place of search and inspection is lying
closed.
152. Another contention raised by the counsel for the appellant was that
the IO failed to join any independent witness at the time of recording of
the disclosure statement of the accused persons and also at the time of
recovery of the incriminating material from accused Nirmala. There can
hardly be any dispute that it is incumbent upon the IO to make all
possible endeavours to join independent witnesses at the time of
recording of the disclosure statement of accused persons and also at the
time of recovery. It is equally true that independent witness more
particularly where the members of the accused are from the same family
do not easily come forward to join as a witness. In the facts of the present
case, it is not only the family of Baljeet but also his real brother Narayan
Singh who was residing in the same locality and therefore, in such like
cases no local person would invite hostility of his neighbours to stand as
a witness. The Apex Court recognizing such deterrence on the part of
independent witnesses of the locality to join as a witness held, in the case
of Ajmer Singh Vs. State of Haryana (2010) 3 SCC 746 that non joining
of independent witness is not fatal to the prosecution case particularly
when efforts were made by the investigating party to join public
witnesses but none were willing.
153. The Hon'ble Supreme Court in the case of Jarnail Singh v. State
of Punjab reported in (2011) 1 SCC (Cri.) 1191, held, that merely
because the prosecution did not examine any independent witness, it
would not necessarily lead to the conclusion that the accused had been
falsely implicated, because on facts, the prosecution offered a plausible
explanation with regard to the non-joining of independent witnesses.
154. Mr. Hariharan, Senior Counsel for accused Nirmala also argued
that the two lines were later inserted after the last line was recorded in the
disclosure statement of Nirmala and this insertion is quite apparent if we
look at the space between the two lines of the disclosure statement and
the lines inserted later. This disclosure statement of accused Nirmala was
recorded by PW-19 and the same was witnessed by PW14- SI- Savita,
Constable-Balbir Singh and ASI-Suresh Kumar but the defence failed to
put any question to these witnesses during the course of cross-
examination about the alleged insertion of two lines after the last line of
accused Nirmala was recorded in the disclosure statement. Having not put
any such question to these witnesses, we find no force in the said
contention raised by the counsel for the appellant at the Appellate Stage.
155. Another contention raised by the counsel for the appellant was that
the recovery of Rs.50,000/- and the gold chain from the spot of the crime
during the disclosure statement of accused Nirmala cannot be said to be
an incriminating circumstance against her as the same does not connect
the accused with the commission of crime in any manner. It is correct that
the recovery of currency of Rs.50,000/- and the gold chain is not directly
linked to the commission of the crime, however, this fact of recovery of
money and gold chain is a relevant fact in the background of the
prosecution case, the accused persons planted these things to create an
evidence of robbery/dacoity, and therefore, the recovery of the said
money and gold chain during the course of the disclosure statement of
accused Nirmala for creating an evidence of dacoity/robbery is a relevant
fact which can be received in evidence under Section 27 of the Evidence
Act, 1872.
156. Counsel for the appellant also raised a contention that in the rough
site plan the presence of blood stained towel, chappals, blood stained
broken bangles and blood stained table clothes (mej poss) were not
shown and similarly the scaled site plan prepared on 13.11.2008 does not
record the presence of Rs.50, 000/-, gold chain, blood stained suit, and
the box wherein these articles were kept would further cast a shadow of
doubt on the story of the prosecution. It would have been better if the
police recorded the presence of these articles in the rough site plan but at
the same time non-recording of the presence of articles in the rough site
plan and scaled site plan would not demolish the case of the prosecution
if it has otherwise proved with the help and support of other clinching
evidences.
157. Dealing with the next contention of learned counsel for the
appellant - Nirmala that the prosecution miserably failed to prove that the
bloodstained suit which was recovered from the spot belongs to Nirmala
and the blood found on the suit matched with the blood group of the
deceased. Contention raised by the counsel for the appellant was that the
statements made to this effect by the appellant in her disclosure statement
stating that the appellant was present in the house on 29 th October 2008;
the appellant's hands got bloodstained during the incident; she wiped
them with a towel; she was wearing a suit which belonged to her; suit
also got bloodstained; she put off the suit; she opened the cupboard and
displaced the items to give the incident a colour of dacoity are
inadmissible as no new fact was discovered in consequence thereof.
Undeniably, there is considerable merit in the submission of the counsel
for the appellant as it is not every statement of fact made by the accused
in the disclosure statement can be admissible under Section 27 of the
Indian Evidence Act but it is only so much of the statement which relates
distinctly to the facts discovered can be admissible under Section 27 of
the Indian Evidence Act. It is also correct that the onus was on the
prosecution to have proved that the said bloodstained suit belonged to the
appellant - Nirmala and the blood on the said suit was that of the blood
group of the deceased. This is indeed one of the many other lapses
committed by the Investigating Officer in carrying out the investigation
of the case in hand. However, due to such lapses on the part of the
investigation, these appellants cannot prove their innocence when there
are other strong circumstances existing, including the ocular testimony of
the child witness to establish their involvement in the commission of the
crime.
158. We may also hasten to add that the recovery of the said
bloodstained suit in the disclosure statement of the appellant - Nirmala, if
read with the statement of the child witness, who had seen the appellant
committing the murder of the deceased, certainly becomes an important
piece of incriminating circumstance against the appellant - Nirmala even
in the absence of any evidence proving that the said bloodstained suit
belonged to the appellant - Nirmala. We, thus, do not find any merit in
the said contention raised by the counsel for the appellant-Nirmala.
159. Dealing with the last contention of counsel for the appellant -
Nirmala, that certain finger prints were lifted by the Investigating Team
from the water filter installed at the spot but those finger prints were not
found to be linked to the finger prints of the accused persons. Counsel for
the appellant also raised the argument that the police failed to collect the
finger prints from either of the two knives recovered from the spot, the
scattered passbooks, cupboard or the box wherein Rs.50,000/-, gold chain
were kept and nor did they collect the call details of the mobile phones of
the accused persons and because of such lapses on the part of the police,
no full proof case to inculpate these appellants in the commission of the
said crime has been made out by the prosecution.
160. As we have already discussed above, the present case is not based
on circumstantial evidence alone but on the ocular evidence of child
witness supported by other incriminating evidences proved on record,
which clearly brings home the guilt of these accused persons. We may
reiterate here that the onus on the prosecution in the case of this nature,
where the offence has been committed within the four walls of a
matrimonial house and accused persons being none other but the family
members themselves, is comparatively lighter in comparison to the other
cases. It is also an admitted position that there can hardly be any case
where the investigation is not free from such kind of lapses and
shortcomings. In every case, it is for the court to see as to how such
lapses and shortcomings on the part of the investigation can create a dent
in the prosecution case or the same can be ignored looking into the other
evidence proved on record.
161. After taking a cumulative view of the facts and circumstances
proved on record, the prosecution succeeded in establishing the guilt of
the appellants - Nirmala, Baljeet and Sanjeet in the commission of the
said crime. We may not separately deal with the contentions raised by
Mr. Vikas Pahwa, learned senior counsel, who represents the appellants -
Baljeet and Sanjeet as his arguments also revolve around similar issues
which have already been discussed by us hereinabove.
162. On the conspiracy angle and the common intention on the part of
these accused persons, we find ourselves in complete agreement with the
reasoning given by the learned Trial Court in the impugned judgment
which needs no re-appreciation by us.
163. In the facts of the present case, the evidence against the accused
persons is strong enough to prove the guilt on their part and the minor
discrepancies as pointed out by the counsel for the appellant on the part
of the investigating agency will not hold these accused persons as
innocent. We also do not find any merit in the contention raised by the
counsel for the appellant that the bangles which were recovered from
accused Nirmala could be easily obtained from the market and therefore,
such a recovery should be disbelieved. The bangles which were recovered
from accused Nirmala got exactly tallied with the broken bangles which
were recovered from the spot of the crime and therefore, this
incriminating evidence lends support to the other incriminating
circumstances unerringly pointing out to the involvement of the accused
Nirmala in the commission of the said crime.
164. The accused - Nirmala also got recovered the bloodstained clothes
which she was wearing at the time of crime. The defence failed to give
any suggestion that if those clothes were not of the accused Nirmala,
then whose bloodstained clothes were recovered from the spot. The
contemporaneous conduct of the accused persons even post commission
of the crime sufficiently proves their accomplicity in committing the said
crime. None of the defence witnesses gave any evidence that any of these
accused persons were shocked to have witnessed the murder of Anju who
was none else but an important member of their family, even there was no
evidence on record that the mother in law or husband cried or suppurated
after seeing the said horrifying and brutal incident. The defence also
introduced the angle of robbery much later during the cross-examination
of PW16 and PW19. It is an admitted fact that no evidence had surfaced
to prove that any stranger or outsider had forced entry into the house to
commit the offence of robbery/dacoity. The lock of the doors of the house
were not found broken either from the main gate or from the back side
and nor the locks of the almirah were found broken. The learned trial
court is right in observing that there was no evidence on record to prove
that any stranger or outsider made a forced entry into the house. The
learned Trial Court is also correct in its observation that the conduct of
these accused persons was not natural and the same can be considered as
relevant under Section 8 of the Indian Evidence Act to prove their
accomplicity in the commission of the said crime.
165. If we take into consideration the totality of the facts and
circumstances which are proved on record, the only irresistible
conclusion we can arrive at is proven guilt of the accused Baljeet, Sanjeet
and Nirmala in committing the said diabolical murder of the young lady
Anju. They can find no escape route to save themselves by taking refuge
either of the poor investigation of the police or of the minor
inconsistencies creeping in the evidence of the prosecution witnesses or
failure of the prosecution in not discharging its onus in proving its case
with cast iron perfection in all respects. Undeniably, the task of the
Courts become more arduous and hard to mete out justice when the
investigating agency and the prosecutors involved in prosecuting a case
before the Court failed to carry out their duties with utmost perfection,
devotion, sincerity and above all with honesty and fairness. However,
with whatever imperfection the investigation is conducted in the case or
in the presentation of a case by the prosecution before the trial court, still
the Courts are duty bound to discharge its pious responsibility to
objectively analyse and dispassionately appreciate the material on record
after separating the chaff from the grain so as to reach to a just and fair
conclusion. It has been rightly said that every acquittal of an offender of a
crime and conviction of an innocent person should be understood as a
failure of the justice delivery system.
166. Thus Justice to all is not only an integral part of the criminal
justice system but it is its prime objective. This finds reiteration by the
Supreme Court of India in the judgment reported at (2012) 8 SCC 263,
Dayal Singh and Ors. v. State of Uttaranchal when the court
emphasized thus:
"―34. Where our criminal justice system provides
safeguards of fair trial and innocent till proven guilty
to an accused, there it also contemplates that a
criminal trial is meant for doing justice to all, the
accused, the society and a fair chance to prove to the
prosecution. Then alone can law and order be
maintained. The courts do not merely discharge the
function to ensure that no innocent man is punished,
but also that a guilty man does not escape. Both are
public duties of the judge. During the course of the
trial, the learned Presiding Judge is expected to work
objectively and in a correct perspective. Where the
prosecution attempts to misdirect the trial on the basis
of a perfunctory or designedly defective investigation,
there the Court is to be deeply cautious and ensure
that despite such an attempt, the determinative
process is not subverted. For truly attaining this
object of a ―fair trial‖, the Court should leave no
stone unturned to do justice and protect the interest of
the society as well."
167. While upholding the view taken by the learned trial court in
convicting the accused - Sanjeet, Baljeet and Nirmala for committing the
offence punishable under Section 302/34/120-B read with Section 498A
of IPC, we do not agree with the conviction of the accused Rajesh and
Meena for the offence punishable under Section 498-A of IPC as no
ocular or circumstantial evidence was proved on record to sufficiently
and convincingly uphold their conviction for committing the offence
punishable under Section 498-A IPC. The allegations of dowry
harassment levelled by PW-6 (Satyawan), against Rajesh and Meena
were evasive and unspecific besides being vague and based on such
vague allegations, they cannot be held guilty for committing an offence
for causing harassment and cruelty to the deceased Anju as contemplated
under Section 498-A of IPC.
168. We also find no cogent evidence having surfaced against Meena
for causing harassment to Anju for becoming incapable to bear a child.
The conviction and sentence imposed upon these accused persons under
Section 498-A is accordingly set aside.
169. Before we part with the judgment, we express our total
discontentment and disappointment in the manner of investigation as
carried out by the investigating team in the present case.
170. As already discussed above, the dispensation of justice becomes
speedy and easy if the other agencies involved in the process undertake
their job seriously and with complete perfection. To highlight some of the
features in the present case , which inter alia are: the failure of the
investigation in carrying out proper search of the house immediately after
the police team had reached at the spot of the crime so much so that they
could lay their hands on the bloodstained suit, Rs.50,000 and gold chain
only after they had arrested Nirmala and other two accused persons; No
report of the Dog Squad was placed on record; finger prints were not
lifted from other articles and objects available on the spot; statement of
the child witness was not recorded under section 161 Cr.P.C in detail; no
proper efforts were made to join the independent public witnesses; no
explanation given for not recording the statement of PW-1 - Pushpawati
with all promptness; and also the statement of witnesses PW-5 and PW-
12 was recorded after a gap of two and a half months and also for not
tracing the call details after seizing the mobile phones of these accused
persons.
171. The Apex Court in the case of State of Gujarat vs. Kishanbhai
etc., 2014 (1) SCALE 177 came very heavily on such erring police
officials and investigating officers who did not discharge their duty with
full diligence and perfection and commit various lapses in the course of
investigation. The relevant paras of the said judgment are reproduced
hereunder:-
"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. In
furtherance of the above purpose, it is considered
essential to direct the Home Department of every
State, to examine all orders of acquittal and to record
reasons for the failure of each prosecution case. A
standing committee of senior officers of the police and
prosecution departments, should be vested with
aforesaid responsibility. The consideration at the
hands of the above committee, should be utilized for
crystalizing mistakes committed during investigation,
and/or prosecution, or both. The Home Department of
every State Government will incorporate in its existing
training programmes for junior
investigation/prosecution officials course content
drawn from the above consideration. The same should
also constitute course-content of refresher training
programmes, for senior investigating/prosecuting
officials. The above responsibility for preparing
training programmes for officials, should be vested in
the same committee of senior officers referred to
above. Judgments like the one in hand (depicting more
than 10 glaring lapses in the investigation/prosecution
of the case), and similar other judgments, may also be
added to the training programmes. The course content
will be reviewed by the above committee annually, on
the basis of fresh inputs, including emerging scientific
tools of investigation, judgments of Courts, and on the
basis of experiences gained by the standing committee
while examining failures, in unsuccessful prosecution
of cases. We further direct, that the above training
programme be put in place within 6 months. This
would ensure that those persons who handle sensitive
matters concerning investigation/prosecution are fully
trained to handle the same. Thereupon, if any lapses
are committed by them, they would not be able to
feign innocence, when they are made liable to suffer
departmental action, for their lapses.
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. Taking into consideration the
seriousness of the matter, the concerned official may
be withdrawn from investigative responsibilities,
permanently or temporarily, depending purely on his
culpability. We also feel compelled to require the
adoption of some indispensable measures, which may
reduce the malady suffered by parties on both sides of
criminal litigation. Accordingly we direct, the Home
Department of every State Government, to formulate a
procedure for taking action against all erring
investigating/prosecuting officials/officers. All such
erring officials/officers identified, as responsible for
failure of a prosecution case, on account of sheer
negligence or because of culpable lapses, must suffer
departmental action. The above mechanism
formulated would infuse seriousness in the
performance of investigating and prosecuting duties,
and would ensure that investigation and prosecution
are purposeful and decisive. The instant direction
shall also be given effect to within 6 months."
172. The Hon'ble Supreme Court in Hema v State thr Inspector of
Police, Madras 2013(1)SCC192 held that:
"10) It is also settled law that for certain defects in
investigation, the accused cannot be acquitted. This
aspect has been considered in various decisions. In C.
Muniappan and Others vs. State of Tamil Nadu, 2010 (9)
SCC 567, the following discussion and conclusion are
relevant which are as follows:-
55. There may be highly defective investigation
in a case. However, it is to be examined as to
whether there is any lapse by the IO and
whether due to such lapse any benefit should be
given to the accused. The law on this issue is
well settled that the defect in the investigation
by itself cannot be a ground for acquittal. If
primacy is given to such designed or negligent
investigations or to the omissions or lapses by
perfunctory investigation, the faith and
confidence of the people in the criminal justice
administration would be eroded. Where there
has been negligence on the part of the
investigating agency or omissions, etc. which
resulted in defective investigation, there is a
legal obligation on the part of the court to
examine the prosecution evidence dehors such
lapses, carefully, to find out whether the said
evidence is reliable or not and to what extent it
is reliable and as to whether such lapses
affected the object of finding out the truth.
Therefore, the investigation is not the solitary
area for judicial scrutiny in a criminal trial.
The conclusion of the trial in the case cannot be
allowed to depend solely on the probity of
investigation.
11) In Dayal Singh and Others vs. State of
Uttaranchal, 2012 (8) SCC 263, while reiterating the
principles rendered in C. Muniappan (supra), this Court
held thus:
Merely because PW 3 and PW 6 have failed to
perform their duties in accordance with the
requirements of law, and there has been some
defect in the investigation, it will not be to the
benefit of the accused persons to the extent that
they would be entitled to an order of acquittal
on this ground.
12) In Gajoo vs. State of Uttarakhand, 2012 (9) SCC 532,
while reiterating the same principle again, this Court
held that defective investigation, unless affects the
very root of the prosecution case and is prejudicial
to the accused should not be an aspect of material
consideration by the Court. Since, the Court has adverted
to all the earlier decisions with regard to defective
investigation and outcome of the same, it is useful to refer
the dictum laid down in those cases:
20. In regard to defective investigation, this Court
in Dayal Singh v. State of Uttaranchal while dealing with
the cases of omissions and commissions by the
investigating officer, and duty of the court in such cases,
held as under: (SCC pp. 280-83, paras 27-36)
27. Now, we may advert to the duty of the court in such
cases. In Sathi Prasad v. State of U.P this Court stated
that it is well settled that if the police records become
suspect and investigation perfunctory, it becomes the duty
of the court to see if the evidence given in court should be
relied upon and such lapses ignored. Noticing the
possibility of investigation being designedly defective,
this Court in Dhanaj Singh v. State of Punjab, held: (SCC
p. 657, para 5)
5. In the case of a defective investigation the
court has to be circumspect in evaluating the
evidence. But it would not be right in acquitting
an accused person solely on account of the
defect; to do so [pic]would tantamount to
playing into the hands of the investigating
officer if the investigation is designedly
defective.
28. Dealing with the cases of omission and
commission, the Court in Paras Yadav v. State of
Bihar enunciated the principle, in conformity with the
previous judgments, that if the lapse or omission is
committed by the investigating agency, negligently or
otherwise, the prosecution evidence is required to be
examined dehors such omissions to find out whether
the said evidence is reliable or not. The contaminated
conduct of officials should not stand in the way of
evaluating the evidence by the courts, otherwise the
designed mischief would be perpetuated and justice
would be denied to the complainant party.
29. In Zahira Habibullah Sheikh (5) v. State of
Gujarat, the Court noticed the importance of the role
of witnesses in a criminal trial. The importance and
primacy of the quality of trial process can be observed
from the words of Bentham, who states that witnesses
are the eyes and ears of justice. The court issued a
caution that in such situations, there is a greater
responsibility of the court on the one hand and on the
other the courts must seriously deal with persons who
are involved in creating designed investigation. The
Court held that: (SCC p. 398, para 42)
42. Legislative measures to emphasise prohibition
against tampering with witness, victim or informant
have become the imminent and inevitable need of the
day. Conducts which illegitimately affect the
presentation of evidence in proceedings before the
courts have to be seriously and sternly dealt with.
There should not be any undue anxiety to only protect
the interest of the accused. That would be unfair, as
noted above, to the needs of the society. On the
contrary, efforts should be to ensure a fair trial where
the accused and the prosecution both get a fair deal.
Public interest in the proper administration of justice
must be given as much importance, if not more, as the
interest of the individual accused. In this courts have a
vital role to play. (emphasis in original)
30. With the passage of time, the law also developed
and the dictum of the court emphasised that in a
criminal case, the fate of proceedings cannot always
be left entirely in the hands of the parties. Crime is a
public wrong, in breach and violation of public rights
and duties, which affects the community as a whole
and is harmful to the society in general.
31. Reiterating the above principle, this Court in
NHRC v. State of Gujarat held as under: (SCC
pp. 777-78, para 6)
The concept of fair trial entails familiar
triangulation of interests of the accused, the
victim and the society and it is the community
that acts through the State and prosecuting
agencies. Interest of society is not to be treated
completely with disdain and as persona non
grata. The courts have always been considered
to have an overriding duty to maintain public
confidence in the administration of justice often
referred to as the duty to vindicate and uphold
the majesty of the law. Due administration of
justice has always been viewed as a continuous
process, not confined to determination of the
particular case, protecting its ability to function
as a court of law in the future as in the case
before it. If a criminal court is to be an effective
instrument in dispensing justice, the Presiding
Judge must cease to be a spectator and a mere
recording machine by becoming a participant in
the trial evincing intelligence, active interest
and elicit all relevant materials necessary for
reaching the correct conclusion, to find out the
truth, and administer justice with fairness and
impartiality both to the parties and to the
community it serves. The courts administering
criminal justice cannot turn a blind eye to
vexatious or oppressive conduct that has
occurred in relation to proceedings, even if a
fair trial is still possible, except at the risk of
undermining the fair name and standing of the
Judges as impartial and independent
adjudicators. (Zahira Habibullah case, SCC p.
395, para 35)
32. In State of Karnataka v. K. Yarappa Reddy this
Court occasioned to consider the similar question of
defective investigation as to whether any manipulation
in the station house diary by the investigating officer
could be put against the prosecution case. This Court,
in para 19, held as follows: (SCC p. 720)
19. But can the above finding (that the station house
diary is not genuine) have any inevitable bearing on
the other evidence in this case? If the other evidence,
on scrutiny, is found credible and acceptable, should
the court be influenced by the machinations
demonstrated by the investigating officer in
conducting investigation or in preparing the records
so unscrupulously? It can be a guiding principle that
as investigation is not the solitary area for judicial
scrutiny in a criminal trial, the conclusion of the court
in the case cannot be allowed to depend solely on the
probity of investigation. It is well-nigh settled that
even if the investigation is illegal or even suspicious
the rest of the evidence must be scrutinised
independently of the impact of it. Otherwise the
criminal trial will plummet to the level of the
investigating officers ruling the roost. The court must
have predominance and pre-eminence in criminal
trials over the [pic]action taken by the investigating
officers. The criminal justice should not be made a
casualty for the wrongs committed by the investigating
officers in the case. In other words, if the court is
convinced that the testimony of a witness to the
occurrence is true the court is free to act on it albeit
the investigating officer suspicious role in the case.
33. In Ram Bali v. State of U.P. the judgment
in Karnel Singh v. State of M.P. was reiterated and
this Court had observed that: (Ram Bali case15, SCC
p. 604, para 12)
In case of defective investigation the court has
to be circumspect [while] evaluating the
evidence. But it would not be right in acquitting
an accused person solely on account of the
defect; to do so would tantamount to playing
into the hands of the investigation officer if the
investigation is designedly defective.
34. Where our criminal justice system provides
safeguards of fair trial and innocent till proven guilty
to an accused, there it also contemplates that a
criminal trial is meant for doing justice to all, the
accused, the society and a fair chance to prove to the
prosecution. Then alone can law and order be
maintained. The courts do not merely discharge the
function to ensure that no innocent man is punished,
but also that a guilty man does not escape. Both are
public duties of the Judge. During the course of the
trial, the learned Presiding Judge is expected to work
objectively and in a correct perspective. Where the
prosecution attempts to misdirect the trial on the basis
of a perfunctory or designedly defective investigation,
there the court is to be deeply cautious and ensure
that despite such an attempt, the determinative
process is not subverted. For truly attaining this
object of a fair trialthe court should leave no stone
unturned to do justice and protect the interest of the
society as well.
35. This brings us to an ancillary issue as to how the
court would appreciate the evidence in such cases.
The possibility of some variations in the exhibits,
medical and ocular evidence cannot be ruled out. But
it is not that every minor variation or inconsistency
would tilt the balance of justice in favour of the
accused. Of course, where contradictions and
variations are of a serious nature, which apparently
or impliedly are destructive of the substantive case
sought to be proved by the prosecution, they may
provide an advantage to the accused. The courts,
normally, look at expert evidence with a greater sense
of acceptability, but it is equally true that the courts
are not absolutely guided by the report of the experts,
especially if such reports are perfunctory,
unsustainable and are the result of a deliberate
attempt to misdirect the prosecution. In Kamaljit
Singh v. State of Punjab, the Court, while [pic]dealing
with discrepancies between ocular and medical
evidence, held: (SCC p. 159, para 8)
8. It is trite law that minor variations between
medical evidence and ocular evidence do not
take away the primacy of the latter. Unless
medical evidence in its term goes so far as to
completely rule out all possibilities whatsoever
of injuries taking place in the manner stated by
the eyewitnesses, the testimony of the
eyewitnesses cannot be thrown out.
36. Where the eyewitness account is found credible
and trustworthy, medical opinion pointing to
alternative possibilities may not be accepted as
conclusive.
The expert witness is expected to put before the court
all materials inclusive of the data which induced him
to come to the conclusion and enlighten the court on
the technical aspect of the case by [examining] the
terms of science so that the court although, not an
expert may form its own judgment on those materials
after giving due regard to the expert opinion, because
once the experts opinion is accepted, it is not the
opinion of the medical officer but [that] of the court.
13) It is clear that merely because of some defect in
the investigation, lapse on the part of the I.O., it
cannot be a ground for acquittal. Further, even if
there had been negligence on the part of the
investigating agency or omissions etc., it is the
obligation on the part of the Court to scrutinize the
prosecution evidence de hors such lapses to find out
whether the said evidence is reliable or not and
whether such lapses affect the object of finding out the
truth. In the light of the above principles, as noticed,
we reject the main contention of the learned counsel
for the appellant, however, as observed in the above
decisions, let us examine the material relied on by the
prosecution and find out whether a case has been
made out against the appellant."
173. Considering the aforesaid dicta in the light of the facts of case at
hand, we are of the view that the Investigating Officer of the case and
other members of investigating team were totally negligent in carrying
out proper investigation in the present case and they did not even bother
to follow the very basics of the investigation. We therefore, direct the
Commissioner of Police to hold a proper departmental inquiry against the
conduct of the concerned Investigating Officers, the members of the
investigating team and all the other concerned officers, who were
supervising and monitoring the investigation of the said case and to take
suitable action against them for carrying out their duties in the most
shoddy and negligent manner.
174. In light of the aforesaid discussion, we deem it appropriate to
uphold the sentence so far as Accused Nirmala, Baljeet and Sanjeet are
concerned. Accordingly, appeals filed by the accused - Nirmala (Crl.A.
No. 486/2011), Baljit and Sanjeet (Crl.A. No. 3386/2011) are dismissed
and the order on sentence passed by the learned trial court convicting
them for the offence punishable under Section 302/120-B/34 of IPC is
confirmed. However, so far as the appeal filed by Rajesh and Meena is
concerned, (Crl.A. No.487/2011) the same is hereby allowed and the
judgment and order on sentence passed by the learned trial court
convicting them under section 498-A of IPC is set aside and the appellant
- Meena and Rajesh are acquitted. With regard to the appeal filed by
appellant - Pushpa Devi (Crl.A. No.1080/2011) the same does not sustain
in view of the above discussion and the same is hereby dismissed.
175. At the end we are pained to observe, the more things change, the
more they remain the same, and this has never ringed true than in today's
time and age. We, the world's largest democracy are touted to be the
most progressive nation, proud of our rich cultural heritage, but are we
also proud of our deep rooted biases? The present case is a manifestation
of the bitter ostensible truth of our society where words like women
liberation and gender equality seem to be overrated but have yet to attain
their true meaning. There is a huge chasm that needs to be bridged
between fact and fiction, to make the women masters of their own
circumstance and not vice versa and to falsify the age old adage of
"Putrathe Kriyathe Varja" that "we marry with the sole aim to have a
son to keep the clan progressing".
176. A copy of this order be sent to the concerned Jail Superintendent
for information and necessary compliance.
177. It is ordered accordingly.
KAILASH GAMBHIR, J.
SUNITA GUPTA, J.
Sept 26, 2014
v/pkb
