Delhi High Court
Mohsin @ Vicky vs State Nct Of Delhi on 28 April, 2017
$~26
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 28th April, 2017
+ Crl. A. No.167/2016
MOHSIN @ VICKY ..... Appellant
Through: Mr.R.S.Juneja, Adv. with Mr.Shiv
Kumar, Adv.
Versus
STATE NCT OF DELHI ..... Respondent
Through: Ms.Radhika Kolluru, APP for the
State.
CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
HON'BLE MR. JUSTICE VINOD GOEL
G.S.SISTANI, J. (ORAL)
1. This is an appeal under Section 374 (2) of the Code of Criminal
Procedure filed against the impugned judgment dated 22.12.2015 and
order on sentence dated 08.01.2016 passed by the learned Trial Court
in FIR No.448/2009, under Section 302 of the Indian Penal Code
(hereinafter referred to as 'IPC'), by which the appellant has been
convicted and sentenced to undergo imprisonment for life and to pay a
fine of Rs.5,000/-, for the offence punishable under Section 302 IPC
and in default of payment of fine, to further undergo simple
imprisonment for a period of one month.
2. The case of the prosecution is that on 22.10.2009, information was
received at Police Station Bhajanpura from SI Jaswant Singh of Police
Station Mansarovar Park that at about 7.40 a.m. someone had left
behind a dead body of a girl aged about 24 years at the casualty of
GTB Hospital. The information was recorded vide DD No.9A. The
dead body was identified by the mother (PW-3) of the deceased. The
mother of the deceased also informed the police that she had lodged a
missing report about the deceased at Police Station Bhajanpura.
3. It may be noted that pursuant to the missing report, DD No.7A dated
20.10.2009; a case was registered at Police Station Bhajanpura
regarding the missing person. It may also be noted that on 19.10.2009,
a phone call had been received from the appellant Vicky, Shaukat and
Arif @ Patta whereby the mother of the deceased was informed that
the deceased was in their custody. A demand of Rs.5 lacs was made.
The deceased had spoken to her mother and had expressed her desire
to come back.
4. As per the prosecution, on the fateful day, i.e. 22.10.2009, the
appellant Mohsin had made a phone call and informed the mother of
the deceased that the deceased was ill and asked her to come to GTB
Hospital. On the basis of the statement of the brother of the deceased,
the FIR under Sections 364/302/34 of IPC was registered. As per the
post-mortem report, the deceased had injuries all over the body; the
cause of death was opined as Asphyxia as a result of smothering and
compression of neck and all the injuries on the body of the deceased
were ante-mortem in nature and produced by blunt force impact.
There were also signs of recent vaginal penetration. Resultantly,
Sections 366/376 of IPC were added to the FIR.
5. In support of its case, the prosecution examined 31 witnesses
including PW-2 (brother of the deceased), PW-3 (mother of the
deceased) and PW-20 (father of the deceased). PW-1 Dr. Meghali
Kelker conducted the post-mortem of the deceased on 22.10.2009 and
is also an important witness. Statement of the appellant was recorded
under Section 313 of the Code of Criminal Procedure wherein he
stated that he has not committed any offence. He was taking his wife
(since deceased) to the hospital for her treatment on a motorcycle.
However, he met with an accident and sustained injuries on his
forehead and his wife also sustained injuries on her left foot. He also
stated that he and his wife had solemnised marriage at Ajmer. Parents
of his wife were not happy with this marriage. After marriage, they
stayed at the house of Kamlesh (PW12) and Brijesh (PW11) as
tenants. He had duly informed the mother of his wife regarding her
illness but she refused to see her daughter saying that she did not want
to keep any relation with her daughter. However, the mother of his
wife reached the hospital along with many other persons. They beat
him and thus he ran away from the hospital. Later on, he came to
know that his wife had expired. He stated that he did not know as to
how his wife had died. He stated that he never kidnapped the deceased
nor demanded any ransom amount.
6. Mr. R. S. Juneja, learned counsel for the appellant has laboured hard
and has submitted that the appellant is innocent; in fact, initially the
missing report was lodged by the mother of the deceased as she was
unhappy with the relationship between the appellant and the deceased.
He contends that the deceased had left her parental home out of her
own free will to enable her to marry the appellant. He submits that the
family of the deceased was well aware about the same which is also
evident from the contents of the phone call whereby the deceased had
informed her mother that she was with the appellant and had married
him. Counsel contends that the above submissions found favour with
the Trial Court and resultantly, the appellant has not been convicted
for the offence under Sections 364A/366/376 IPC. In this backdrop,
counsel contends that there was no motive for the appellant to kill his
wife with whom he was in love and she had voluntarily left her
parental home to marry him.
7. Mr. Juneja submits that the prosecution has failed to establish any
motive which is relevant to the facts of this case. Even otherwise, he
contends that the judgment of conviction is against the law and facts
on record. He submits that the evidence led by the prosecution is
grossly insufficient to connect the appellant with the crime. There is
no eye-witness to this case and the prosecution has failed to
substantiate and connect the appellant to the crime. Mr. Juneja
contends that the deceased and the appellant were known to each
other; they were residing in the same locality; there was no complaint
against the appellant of eve-teasing.
8. PW-2 (brother of the deceased) was confronted with certain
photographs being Ex.PW-2/D1 to Ex.PW-2/D8 who had admitted
that his sister was seen in those photographs. He was also confronted
with two letters written in Hindi marked as PW-2/DA1 and PW-
2/DA2, which were love letters and written in the handwriting of the
deceased. Counsel contends that neither there was any motive for the
appellant to kill his wife with whom he was in love and they were
newly married, nor there was any reason for him to take her to the
hospital if he had any intention to kill her. Instead of taking the
deceased to the hospital, he could have well disposed of her body at
some unknown place. His conduct would show that his endeavour
was to take his wife to the hospital as she was asthmatic and his
conduct of running away from the hospital, which has been
highlighted, was a natural condition when he found that the family
members of the deceased had gathered in the hospital and he ran away
to save his life.
9. Learned counsel for the appellant further submits that the testimonies
of the landlady PW-12 Kamlesh and her husband PW-11 Brijesh
Kumar would show that the appellant had disclosed to PW-12 that he
was taking his wife (the deceased) to the hospital as she was unwell.
Mr. Juneja submits that this testimony gains immense importance as it
would show that the deceased was alive and the appellant was not
responsible in smothering her to death. Mr. Juneja has also placed
reliance on the testimony of DW-3 who is the father of the attending
Doctor who has fully proved the prescription to show that the
deceased was asthmatic and was having problem of severe congestion
in the chest and difficulty in breathing. Having regard to her medical
condition, the Doctor had advised that the patient should be taken to
some advance Centre and in furtherance thereof, the appellant in all
earnestness had taken the deceased to GTB Hospital, however, on the
way they had met with an accident and the deceased fell down and
sustained injuries which are now being attributed to the appellant.
10. Counsel further submits that there is no evidence on record that there
was any altercation, quarrel or fight between the newly married couple
and thus, it cannot be said that the appellant was responsible for 17
injuries on the body of the deceased. It is also submitted that there is
no evidence to show as to how the appellant has smothered the
deceased to death. In this case, there is no weapon of offence which
can lead to the conclusion that the appellant committed the murder of
his wife whom he had recently married. Mr. Juneja explains that the
injuries on the body of the deceased including the injuries on her
forehead, nose and neck were inflicted on account of the passionate
love made by the newly wedded couple and the other injuries
sustained by the deceased were due to the accident which occurred on
the way from the house to the hospital.
11. It is also contended by the learned counsel for the appellant that there
are material contradictions in the testimonies of PW-2 and PW-3.
They are interested witnesses and even otherwise, their testimonies are
unreliable, as the story put forth by them regarding kidnapping,
ransom and rape has been disbelieved by the Trial Court and as such,
the appellant cannot be convicted based on the testimonies of such
unreliable witnesses. Mr. Juneja contends that the testimony of the
landlady (PW-12) is consistent and reliable. She has, in her statement
recorded under Section 161 of the Code of Criminal Procedure as also
in the statement recorded in Court, consistently stated that in the
morning of 22.10.2009 she had seen the appellant and his wife and the
appellant had informed her that he was taking his wife to the hospital
as she was unwell. Counsel submits that the testimony of PW-12
would also show that in fact, the appellant and his wife had cordial
relations and she clarified during cross-examination that the noises
which she heard were conversations between the husband and wife
and thus, it did not alarm her.
12. Mr. Juneja submits that the post-mortem report is unreliable as
compared to the MLC. He contends that the MLC does not mention
any of the injuries on the body of the deceased, which would show
that when the appellant had brought the deceased to the hospital,
except for the minor injuries sustained by her on account of the
accident, there were no injuries to show smothering and there was no
ligature mark.
13. Counsel has also highlighted the conduct of the appellant. It is
contended that not only did the appellant take his wife to a doctor the
moment she became unwell on 21.10.2009 which is evident upon the
testimony of DW-3, but on the following day, i.e. on 22.10.2009 he
also took her to GTB Hospital. Additionally, he informed the mother
of the deceased early morning about the condition of her daughter
being unwell and the fact that he was removing her to GTB Hospital.
Mr. Juneja also explains that the MLC does not show the name of the
appellant, as he was forced to run away from the hospital as the family
members of the deceased had gathered and he feared for his life.
14. Without admitting that the appellant in any way was responsible for
killing his wife, an alternate argument has been taken by the learned
counsel for the appellant that in case on account of a sudden quarrel
without any intent the appellant exerted force on the neck of the
deceased which resulted in her death, a case under Section 302 IPC
would not be made out, but would fall under the Exception IV of
Section 300 of IPC. He explains that the injuries as detailed in the
post-mortem report can be explained as injuries No.1, 2, 6, 7, 8, 9, 12,
14, 15, 16 and 17 were as a result of the accident and were sustained
during the time the body was being removed from the house to the
hospital, while injuries No.3, 4, 5, 10, 11 & 13 were only love marks,
and the injuries resulted from the accident could not have led to the
death of the deceased. Mr. Juneja contends that even the Doctor
opined that the injuries No.3 and 4 may be love marks because of
forceful kissing.
15. Per contra, Ms. Radhika Kolluru, learned APP for the State submits
that the State has been able to prove its case beyond any shadow of
doubt. The appellant and the deceased were last seen together. The
MLC shows that the deceased was brought dead to the hospital. After
leaving the dead body at the hospital, the appellant absconded after
informing her mother. She submits that the circumstances as
described above can lead only to one conclusion that the appellant
alone was responsible for her death and thus, there is no infirmity,
illegality in the order passed by the Trial Court.
16. Learned counsel for the State also contends that the appellant alone is
responsible for the injuries caused to the deceased and thereafter, he
had smothered her to death. She further submits that the motive is a
weak form of evidence and not in every case motive can be
established by the prosecution. She submits that the landlady (PW-12)
was won over by the appellant as in her statement recorded under
Section 161 of the Code of Criminal Procedure. she had stated that she
had heard a quarrel in the middle of the night.
17. She further submits that the defence sought to be raised during the
course of hearing of this appeal to explain the conduct of the appellant
for running away from the hospital is not borne out from the record.
While relying on the call record Ex.PW-24/H of the mother of the
deceased, she submits that it would show that the first call was made
by the appellant from his Telephone No.9953725667 to the mother of
the deceased on Telephone No.9312451326 on 22.10.2009 at
6:36 a.m. and at that time, the location of the mother of the deceased
was at Yamuna Vihar. While relying on further call details, Ms.
Radhika contends that till 9:34:20 a.m. the mother continued to remain
at Yamuna Vihar. Thereafter, she went to the police station as per her
testimony and would not have reached the hospital till 11.04:45 a.m.
Relying on the call records of the appellant Ex.PW-23/G, she submits
that when the first call was made, the location of the appellant was
Sarita Vihar where he was residing. Thereafter, the call at 7:07 a.m.
would show that he was in the hospital and at the time of a subsequent
call at 7:18 a.m. he was still in the hospital. Further, the call details at
7:23 a.m. would show that he was at Maujpur which is away from
GTB Hospital. Thus, the theory propounded by the appellant, that
when the family members of the deceased reached the hospital he had
to flee, has no legs to stand and it would firmly stand established that
after leaving the dead body in the casualty of the GTB Hospital, the
appellant absconded from the spot. Ms. Radhika also contends that
the MLC did not contain the nature of injuries as it was explained by
the Doctor (PW-7) that once the patient is found dead, it is left to the
Doctor who conducts the post-mortem to detail the injuries on the
body if any.
18. Ms. Radhika has submitted that CW-1, a Court witness, namely, Dr.
Pankaj Kumar, Asstt. Professor of Psychiatry, Institute of Human
Behaviour and Allied Sciences, Dilshad Garden, Delhi had appeared
as a witness who testified that he was directed to give an opinion
regarding the fitness of the appellant Mohsin to stand trial and to know
whether he is capable to understand the proceedings. He testified that
in pursuance to the order of the Court, a Medical Board was
constituted, comprising of Dr. Rajesh Kumar, Associate Professor of
Psychiatry, Dr. Deepak Kumar, Associate Professor of Psychiatry and
Vice Chairman and Dr. N. G. Desai, Director and Chairman. He was
also one of the members of the Medical Board who examined the
patient/appellant to find out whether the patient is fit to stand trial. He
was evaluated on the line of whether he is aware of the consequence if
found guilty in the same proceedings and whether he is able to defend
himself. The Medical Board had opined that the patient/appellant was
found to be fit to stand trial, although he was also found suffering
from other habit and impulse control disorder which was, however,
not connected with the understanding of a patient to understand the
proceedings in the Court in trial. She submits that in this background,
there is every possibility that there was a quarrel between the husband
and the wife in the middle of the night and the appellant would have
smothered his wife to death. Learned counsel for the State submits
that the defence sought to be raised that the victim died on account of
acute asthma has no basis. She has placed reliance on the testimony of
PW-1 Dr. Meghali Kelker, who has stated that in case a person dies on
account of asthma, other allied reasons would include infection of
lungs i.e. consolidation, adhesions, pleural thickenings, pus pockets in
the lungs and these symptoms ought to have been there. She submits
that the prescription slip Exhibit DW-3A is a fabricated document.
19. We have heard learned counsel for the parties, considered their rival
submissions, carefully examined the testimonies of the witnesses on
record and the impugned judgment rendered by the Trial Court.
20. In order to deal with the contentions of both the parties, it would be
appropriate to examine the testimonies of the material witnesses
including PW2 (brother of the deceased), PW3 (mother of the
deceased) and PW20 (father of the deceased).
21. PW2 Tarik (brother of the deceased) in his examination-in-chief
deposed that on 14.10.2009 his sister (since deceased) had gone to the
market to buy some articles and from there she went missing and did
not return. On 19.10.2009, a telephone call was received by him on his
mother's phone. The call was made by Shaukat, whose identity was
known to him and thereafter phone was handed over to the appellant
Vicky, who was also known to him. The appellant Vicky told PW2
that his sister (deceased) was with them and he asked PW2 not to
complain about this to anyone. PW2 asked the appellant to release his
sister on which he informed him that he had got prepared the
documents of nikah and Shaukat, Arif and Munna are the witnesses of
that nikah. The appellant further asked PW2 to arrange a sum of
rupees five lacs. Thereafter, the phone was handed over to Arif and
subsequently to Munna, who were also known to PW2. He deposed
that he did not disclose this conversation to any one in his family in
order to avoid any tension in the family. The accused persons had also
spoken to his mother (PW3) over the phone in the evening of
19.10.2009 and his mother spoke to the deceased who was weeping
and saying that she wanted to come back to her home on which the
appellant snatched the phone and said that the deceased will not come
back. On 20.10.2009, his mother and father went to Police Station
Bhajanpura and filed a complaint regarding missing of his sister
(deceased) and demand of money. On 20th and 21st of October of
2009, the accused persons again made telephone calls to the mother of
PW2 and threatened them of dire consequences in case they do not
make arrangements of the money demanded by them. PW2 further
deposed that on 22.10.2009 at about 5:00 or 6:00 AM, again a
telephone call was made by the appellant which was received by his
mother. The appellant told his mother that his sister is seriously ill and
asked them to come to Irwin Hospital. After sometime another
telephone call was received from the appellant asking them to come to
the GTB Hospital. Firstly, PW2 along with his mother went to Police
Station Bhajanpura and informed the police officials regarding the
phone calls made by the appellant and thereafter they went to GTB
Hospital where they identified the dead body of his sister. PW2 further
deposed that on 22.10.2009, the accused persons were repeatedly
calling from different numbers which were received on the mobile
phone no. 9312451326. He also deposed that he had attended the calls
on mobile phone no. 9313972970 in the absence of his mother. He
further deposed that another number from which the phone call was
received later on was 9555392052.
22. PW2 in his cross-examination admitted that he knew the appellant
since his childhood as they are neighbours. He also admitted that prior
to the present incident there was no dispute between his family and
that of the appellant. He denied that there was a love affair between
the deceased and the appellant for the last two years; denied that the
deceased used to meet the appellant alone; denied that the deceased
and his mother had visited Ajmer Sharif many a times with the
appellant; denied that the appellant had been staying during night at
the house of this witness for the last 1½ years prior to the incident and
the appellant had left his wife and children for the deceased; denied
that the deceased was suffering from Asthma and they had got her
treated for Asthma. PW2 in his cross examination was confronted with
certain photographs which are Ex.PW2/D1 to Ex.PW2/D8 and PW2
admitted that his sister (deceased) is seen in these photographs. PW2
was also confronted with two letters in Hindi marked as PW2/DA1
and PW2/DA2, which are apparently, love letters written by the
deceased. PW2 denied all these letters and deposed that the deceased
knew only the Urdu language and she could not write her name in
English. PW2 further stated that he has no knowledge if his sister
(deceased) got married with the appellant. He also deposed that he did
not know if the appellant and the deceased were in deep love and his
mother (PW3) was a consenting party to this love affair. PW2 denied
that his mother was willing to perform nikah of the deceased with the
appellant; denied that PW2 and his parents did not make any
complaint to the police between 14.10.2009 and 18.10.2009 as they
were aware that the deceased had willingly gone with the appellant to
marry him with their consent; further denied that they were aware
about the marriage of the deceased with the appellant on 15.10.2009.
PW2 admitted that he had never received any complaint from his
sister regarding her being teased by any person from their
neighbourhood. PW2 denied that no ransom was demanded by any of
the accused persons from him or his family members and due to that
reason, this allegation is not made in the complaint lodged by his
mother to the police; also denied that he had no conversation with
Munna and the appellant; denied that the appellant and Munna were
being falsely implicated in anger after his family came to know about
the death of his sister. He also deposed that he was unaware if his
sister got married with the appellant and left the house on her own
with the appellant. He further deposed that on 22.10.2009 he did not
notice any injury mark on the body of his sister.
23. PW3 Bushra (mother of the deceased) in her examination-in-chief
deposed on similar lines as deposed by PW2 and deposed that her
daughter (since deceased) was found missing from 14.10.2009 at
about 4.00 PM. On 19.10.2009, in the evening hours, she received a
phone call on her mobile phone number 9312451326 from the
appellant whom she knew earlier as he was living in her locality. She
interacted with her daughter on the mobile of the appellant and the
deceased informed her that she was unaware of the place where she
was kept and thereafter she started weeping. The appellant demanded
rupees five lacs from her. On 20.10.2009, she went to the Police
Station Bhajanpura and lodged complaint which is Ex. PW3/A. On
22.10.2009, at about 6:00 AM, the appellant made a phone call to her
and said that if she wants to meet her daughter then she should come
to Irwin Hospital. After half an hour, he again made a phone call to
PW3 and told her to come to GTB Hospital to see her daughter as she
is seriously ill. The appellant also asked her to come alone. PW3
deposed that firstly she reached to the PS Bhajanpura along with her
son (PW2) and thereafter she went to GTB Hospital along with her
neighbours and dever. She was continuously receiving telephone calls
from the appellant. When she reached to the hospital, PW3 saw the
mother and sister of the appellant but they fled away on seeing PW3.
PW3 found the dead body of her daughter in the hospital. Her son also
reached there with the police officials.
24. PW3 in her cross-examination stated that on 14.10.2009, she along
with her husband went to the police station and made an oral
complaint about missing of her daughter. On 22.10.2009, she again
visited the police station for making the complaint regarding missing
of her daughter. PW3 stated that she had no conversation with her
daughter from 14.10.2009 till 18.10.2009. She further stated that in
her complaint dated 20.10.2009 she had mentioned about the ransom
call of rupees five lacs on which she was confronted with Ex. PW3/A
wherein it was not so recorded. PW3 denied the suggestion that her
daughter had voluntarily got married with the appellant. She also
stated that her daughter was not suffering from Asthma. She denied
that the appellant used to visit her house. PW3 also stated that she
knew that the appellant was a married person having two daughters.
She denied that the deceased was in love with the appellant; denied
that she along with her son and the deceased went to Ajmer Sharif
with the appellant and she showed the place to the appellant at Ajmer
Sharif where nikah takes place and asked him to perform nikah at
Ajmer Sharif; denied that she had visited Ajmer Sharif seven or eight
times with the appellant; also denied that the appellant after leaving
his wife and daughters came to her house and he was spending all his
earnings on the family of this witness; denied that her deceased
daughter could write in Hindi and deposed that she knew Urdu
language; denied that that as no ransom was demanded by the accused
persons, this fact is not mentioned in Ex.PW3/A; denied that her
daughter died due to Asthma.
25. PW20 Shamshuddin in his examination-in-chief deposed that on
14.10.2009 his daughter went to market to purchase some gift articles
but she never returned and so he along with his wife went to police
station Bhajanpura to lodge a missing report on the same day but their
report was not registered. On 19.10.2009, accused persons along with
the appellant made a phone call to his wife (PW20) and told her that
his daughter was with them who was weeping and pleading them to
save her. He further deposed that a demand of Rs. 5 lacs was made by
them from his wife as ransom money and then on 20.10.2009 he along
with his wife, went to the Police Station Bhajanpura to lodge a report
against the appellant and the accused persons regarding kidnapping of
her daughter and demand of ransom. PW20 further deposed that on
22.10.2009 he received a telephone call from his wife who informed
him that their daughter was left at GTB Hospital by the appellant and
accused persons after murdering her. He rushed to the hospital and
identified the dead body of his daughter.
26. PW20 in his cross examination stated that he had no knowledge that if
on 19.10.2009 his daughter had stated to his wife that the appellant
had married her by force and the appellant and Shaukat were with her
and then she started to weep. He also admitted that he did not receive
any call on his mobile phone. He deposed that the appellant and the
accused persons were continuously making the ransom demand and
threatened to kill his daughter; also admitted that the appellant was
residing near his house. He denied that the appellant used to visit and
stay at his house and also denied that his daughter had performed
Nikah with the appellant.
27. Besides the above public witnesses, PW4 ASI Sushil Kumar proved
copy of DD No. 11A (with regard to the admission of a lady aged 24
years who was declared brought dead by the doctors). PW10 SI Balbir
Singh proved DD No. 9A, 11A and 37B which are Ex.PW10/A,
Ex.PW10/B, Ex.PW10/C respectively. PW10 further proved DD
entries with regard to receiving of rukka, registration of FIR and
missing report of the deceased and the same have been proved as
Ex.PW10/D, Ex.PW10/E, Ex.PW10/F and Ex.PW10/G. PW31 Insp.
Hansraj Thakran was the Investigating Officer who had conducted
investigation in the present case.
28. PW16 Const. Karamvir deposed that on 22.10.2009, he was posted as
the duty constable at GTB Hospital. On that day one unknown lady
aged about 24/25 years was got admitted at the Emergency of GTB
Hospital by an unknown person and after examination she was
declared brought dead by the doctor. PW16 passed this information at
PS Mansarover Park and SI Jaswant Singh reached GTB Hospital and
collected the MLC of that lady. PW18 HC Abdul Rahim is a witness
to the arrest of the appellant and has proved the arrest memo which is
Ex.PW18/D.
Evidence of Last Seen:
29. The prosecution has also relied upon the testimony of PW12 Kamlesh
(wife of PW11/landlady of the premises rented to the appellant).
PW12 deposed in her examination-in-chief that on 21.10.2009 at
about 2/3:00 PM one Neeraj (PW13) who was known to her came to
her house along with Shaukat to take a room on rent. Both of them
saw the room and she agreed to let out her room which was located at
the first floor. PW12 along with her family was residing at the ground
floor of the same premises. Same day in the evening Shaukat came
along with the appellant and one girl (since deceased) to the house of
PW12 and they went to the tenanted room. Shaukat had informed her
that the appellant and the deceased had recently got married. At about
8/9:00 PM Shaukat left their house and the appellant and the deceased
stayed in the rented room. PW12 further deposed that next morning,
while she was on her way to take bath, the appellant told her that he is
going to the hospital along with his wife as she is not well and
thereafter both of them left and thereafter they did not return.
30. PW12 Kamlesh in her cross-examination stated that during the night
of 21.10.2009, she heard noises of altercation between the appellant
and the deceased but she did not intervene as she considered that it
was a matter between a husband and his wife. PW12 admitted that the
deceased did not disclose her that she was forced into marriage or had
been kidnapped; admitted that the girl looked happy and she did not
hear any quarrel between the appellant and the deceased but it was a
normal conversation between a husband and his wife; admitted that
when the appellant was taking the deceased in the morning she was
alive; further admitted that when she met the appellant and the
deceased, they seem to be in deep love with each other.
31. Although, PW11 Brijesh Kumar (husband of PW12) is not a witness
of last seen but his testimony remained consistent with PW12 on
material aspects. PW11 deposed in his examination-in-chief that on
21.10.2019, at about 6:30 PM one girl (since deceased) along with the
appellant and Shaukat came to their house. Shaukat went away and
Vicky and that girl went inside the tenanted room at the first floor. In
his cross-examination PW11 admitted that deceased did not disclose
to him that she had been forced to marry anyone or kidnapped; also
admitted that from the conduct of the deceased, it appeared that she
had come at his house out of her own will; also admitted that when he
met the appellant and the deceased, both of them looked happy.
32. PW13 Neeraj deposed that on 21.10.2009, he along with Shaukat went
to the house of PW11 Brijesh, who is a friend of his father and a room
was let out to Shaukat. Shaukat required a room for his brother who
had performed a love marriage.
33. From above, it is clear that the deceased remained with the appellant
between 14.10.2009 till the morning of 22.10.2009 and the deceased
was last seen with the appellant in the morning of 22.10.2009. Also, it
was the appellant who had brought the deceased to the hospital.
Medical Evidence:
34. Before deciding the appeal in hand, we deem it appropriate to analyze
the medical evidence in detail. In this regard testimonies of PW7 Dr.
Ravinder Singh and PW1 Dr. Meghali Kelkar assume importance.
PW7 Dr. Ravinder Singh had examined the deceased on 22.10.2009 at
about 7.40 AM. The MLC of the deceased is Ex.PW1/DC which
details that an unknown female, aged about 24 years left by unknown
person in casualty and with no history available. It further states that
the patient (deceased) was declared brought dead in casualty. PW7 in
his cross-examination stated that when the patient was brought dead,
injuries were not recorded in the casualty but were noted in detail
during the post-mortem examination of Forensic Medicine.
35. It would also be useful to analyse the post mortem report (Ex.PW1/A)
which was proved by Dr. Meghali Kelker (PW1), who had conducted
the post mortem on the deceased on 22.10.2009, between 2.55 PM and
3.55 PM and had found the following 17 injuries on the body of the
deceased:
"External ante-mortem injuries:
1. Linear scratch abrasion measuring 2 x 0.2 cm
present on medial aspect of right arm 14 cm below right
axilla.
2. Linear scratch abrasion measuring 4 x 0.2 cm
present on medial aspect of right elbow joint.
3. Reddish abrasion measuring 5 x 1.5 cm surrounded
by reddish blue contusions present on lower lip.
4. Reddish abrasion measuring 3 x 1.5 cm surrounded
by reddish blue contusions present on right side of upper
lip.
5. Reddish abrasion measuring 2 x 1 cm surrounded by
reddish blue contusions present on left side of upper lip just
lateral to mid line.
6. Reddish abrasion measuring 2 x 1 cm present on left
ala of nose.
7. Reddish abrasion measuring 2 x 1 cm surrounded by
reddish blue contusions in an area of 2 x 2 cm present
around nasal septal area.
8. Reddish scratch abrasion measuring 0.5 x 0.2 cm
present on right side face 4 cm from mid line and 5 cm
below right eye.
9. Reddish blue contusions measuring 1 x 1 cm present
on medial aspect of right eye just below right eyebrow and 2
cm from mid line.
10. Reddish blue contusions measuring 0.5 x 0.5 cm
present over medial upper quadrant of left breast 11 cm
below clavicle and 6 cm from mid line.
11. Reddish blue contusions measuring 0.5 x 0.5 cm
present over medial upper quadrant of left breast 4.5 cm
lateral and 2 cm below injury No. 10.
12. Reddish blue contusions measuring 2 x 1 cm present
over medial and upper quadrant of left breast 4 cm medial
and 1 cm above injury No. 10.
13. Reddish blue contusions measuring 0.5 x 0.5 cm
present over medial upper quadrant of right breast 9 cm
below clavicle and 10 cm from mid line.
14. Reddish abrasion measuring 5 x 0.5 cm present on
front of right leg 13 cm below knee and is vertically placed.
15. Reddish deep grazed abrasions involving in dorsum
of right foot, all the five toes measuring 10 x 6 cm
surrounded by reddish blue contusions in an area of 4 x 8
cm with fracture of nail plate of great toe and abrasion of
nail plate of two lateral toes with nail plates of two medial
toes absent due to grazing. Underline nail bed show
extravasation of blood.
16. Lacerated wounds measuring 1.5 x 0.2 x 0.2 cm
present on lateral border of right foot 9 cm in front of heel.
17. Reddish abrasion measuring 2.5 x 0.3 cm present on
lateral aspect dorsum of right foot 2 cm above lateral
border.
On Internal examination:
Scalp, skull, meninges were NAD.
Brain: 1200 gms was congested with patchy sub-arachnoid
haemorrhage present on right frontal bilateral parietal
lobes.
Neck: Extravasation of blood seen in the soft tissues of
bilateral neck. Bruising of right carotid sheath present.
Laryngeal apparatus, thyroid cartilage, hyoid bone were
intact. Trachea luman was congested.
...
Petichial haemorrhages present on interlobar surface and
bases of both lungs on cut sections pinkish frothy fluid seen
oozing out."
36. The post-mortem report, Ex PW1/A records that the time since death
was about 12 hours from examination of the dead body and the cause
of death was as under:
"1. Asphyxia as a result of ante-mortem smothering and
compression of neck.
2. All the injuries are ante-mortem in nature and are
produced by blunt force impact.
3. There are signs of recent vaginal penetration, however,
high and low vaginal swabs and smears are sent for
analysis for presence of semen and semen grouping."
37. It is noteworthy to mention the cross-examination of PW1 Dr.
Meghali Kelkar wherein she has admitted that as per the post-mortem
report there is no mention of the possibility of injuries as to whether
they were caused homicidal or accidental in nature. Also, there is no
mention that all the injuries collectively or any particular injury is
sufficient to cause death in the ordinary course of nature. She had
voluntarily deposed that on the basis of injuries present around the
oral and the nasal orifices and internal finding of neck the cause of
death was given as asphyxia as a result of ante-mortem smothering
and compression of neck which is sufficient to cause death in the
ordinary course of nature, the smothering as well as compression of
neck is sufficient to cause death in the ordinary course of nature
independently as well as collectively. PW1 in her cross-examination
voluntarily stated that on the basis of injuries and internal findings
present in the Post Mortem report, injury Nos. 3, 4, 5, 6, 7 and 8 and
internal finding resulted in asphyxia as a result of smothering and
compression of neck which are sufficient to cause death in the
ordinary course of nature independently or collectively. PW1 further
admitted that in the inquest paper No.1 (request for post-mortem),
which is Ex.PW1/DB, and paper No.2 (Form No. 25.35), which is
Ex.PW1/DB there is no mention of injuries on them. Furthermore,
there is no mention of injuries on the MLC of the deceased whic h is
Ex.PW1/DC.
38. PW1 had further stated in her cross-examination that the asphyxia has
number of causes. It has been admitted that it may occur due to lung
problem, obstructions of air passage, suffocation and Asthma. She also
admitted that it is possible that a person may die due to lack of oxygen
in the atmosphere. The relevant question raised by the Court reads as
under:
"Court Q: what are the findings in the cases where
asphyxia is resulted on account of lungs problem,
obstructions in air passages and suffocation?
Ans: In cases of lung problem, there are findings of
infection i.e. consolidation, adhesions, pleural thickenings,
pus pockets in the lungs, empyma, emphysema, bronchitis,
bronchectasis, fibrosis, mucus/pus in the bronchioles,
cavities, enlarged lymph nodes, pleural effusion, tumors and
anomalies and trauma. In case of obstructions of air
passages, there are any foreign body/aspirated
material/mucus plugs/cancer/tumor/pressure from exterior
obstructing the air passages. In cases of suffocation, there
may be findings of gagging, chocking, smothering and
deficiency of oxygen or presence of poisonous gases can be
seen."
39. PW1 was also asked in her cross-examination as under:
"Q: Have you mentioned the method in the post-mortem
report by which the compression was done?
Ans: Due to absence of any external injury on the neck, I
have not mentioned the method by which the compression
was done. However, presence of internal injury of the neck
the opinion on the compression of neck only was given.
It is wrong to suggest that I have improvement in the answer
regarding my opinion today.
It is correct that as per external ante-mortem injuries no.1,
2, 3, 4, 5, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 the death
cannot take place individual injury. Vol. The injuries no. 3.
4, 5, 6, 7 and 8 along with internal injuries are sufficient to
cause death. It is wrong to suggest that I am deposing
falsely with respect to the voluntary portion."
40. The question which arises for our consideration as to whether injuries
No.3, 4, 5, 6, 7, and 8 are individually sufficient to cause death in the
ordinary course of nature. To deal with this question, it would be apt
to analyse the relevant part of the cross-examination of PW1 which
reads as under:
"It is correct that injury no.3 individually is not sufficient to
cause death in ordinary course of nature. It is also correct
that injury no.4 individually is not sufficient to cause death
in ordinary course of nature. It is also correct that injury
no.5 individually is not sufficient to cause death in ordinary
course of nature. It is also correct that injury no. 7
individually is not sufficient to cause death in ordinary
course of nature. It is also correct that injury no.8
individually is not sufficient to cause death in ordinary
course of nature.
It is correct that there was no other injury except injury no.6
and 7 on the nose. There was no blood stain on the face. It
is correct that clothes which were on the dead body not
having blood stains.
It is correct that there was no external injury on the head on
all side. I did not receive any CT Scan paper. It is correct
that there is no external injury on the neck of deceased."
41. With regard to injury No.3 and 4, the relevant part of the cross -
examination reads as under:
"It is correct that injuries no. 3 and 4 can be caused by
forceful kissing on lips."
42. With regard to injury No. 6 and 7, the relevant part of the cross-
examination reads as under:
"It is correct that injury no.6 and 7 can be caused by forced
compression of nose."
43. With regard to injury No.10, 11 and 12, the relevant part of the cross -
examination reads as under:
"It is possible that injuries no. 10, 11 and 12 can be
produced by cardio pulmonary resuscitation (CPR) by
applying pressure on the chest."
44. With regard to injury No.15, the relevant part of the cross-examination
reads as under:
"It is correct that injury no.15 can also be caused by
frictional force. It is further correct that injury no.15
individually is not sufficient to cause death in the ordinary
course of nature."
45. In the present case, undoubtedly, there is no eyewitness to the
occurrence and the prosecution had sought to establish the case against
the appellant from circumstantial evidence. It is trite to say that in a
case based on circumstantial evidence, the circumstances from which
the conclusion of guilt is to be drawn have not only to be fully
established but all the circumstances so established should be of
conclusive nature and consistent with the hypothesis of the guilt of the
accused. Moreover, all the established circumstances should be
complete and there should be no gap in the chain of evidence.
Therefore, the evidence has to be carefully scrutinized and each
circumstance should be dealt carefully to find out whether the chain of
the established circumstances is complete or not. In the present case,
the following circumstances stand proved against the appellant:
i) The deceased was with the appellant from 14.10.2009 till the
morning of 22.10.2009;
ii) The deceased was last seen in the company of the appellant by
PW12 Kamlesh during early morning of 22.10.2009;
iii) The appellant took the deceased to the hospital;
iv) PW12 also heard loud voices in the intervening night of
21/22.10.2009, which she considered to be a matter between
husband and his wife;
v) The appellant left the body of the deceased at GTB hospital and
fled away from there.
Motive:
46. As far as the motive to cause death of the victim is concerned. The law
relating to the role of motive in cases of circumstantial evidence is
very clear as laid down in a catena of decisions of the Hon'ble
Supreme Court and this court as well. The Apex Court in the case of
Surinder Pal Jain vs. Delhi Administration reported at 1993 SCC
(Cri) 1096, observed as under:
"11. There is no motive established in this case by the
prosecution for the appellant to commit murder of his wife
and the evidence of Tara Chand father of the deceased as
well as the sister of the deceased and the tenants living in
the same house disclosed that the relations between the
husband and wife were cordial. In a case based on
circumstantial evidence, motive assumes pertinent
significance as existence of the motive is an enlightening
factor in a process of presumptive reasoning in such a case.
The absence of motive, however, puts the court on its guard
to scrutinise the circumstances more carefully to ensure that
suspicion and conjecture do not take place of legal proof."
(Emphasis Supplied)
47. In another case titled as Munish Mubar vs. State of Haryana reported
at (2012) 10 SCC 464, the Hon'ble Supreme Court held as under:
"30. In a case of circumstantial evidence, motive assumes
great significance and importance, for the reason that the
absence of motive would put the court on its guard and
cause it to scrutinize each piece of evidence very closely in
order to ensure that suspicion, emotion or conjecture do not
take the place of proof. However, the evidence regarding
existence of motive which operates in the mind of an
assassin is very often not within the reach of others. The
said motive may not even be known to the victim of the
crime. The motive may be known to the assassin and no one
else may know what gave birth to such evil thought in the
mind of the assassin. In a case of circumstantial evidence,
the evidence indicating the guilt of the accused becomes
untrustworthy and unreliable, because most often it is only
the perpetrator of the crime alone, who has knowledge of
the circumstances that prompted him to adopt a certain
course of action, leading to the commission of the crime.
Therefore, if the evidence on record suggests
sufficient/necessary motive to commit a crime, it may be
conceived that the accused has committed the same."
(Emphasis Supplied)
48. In the case of Sathya Narayanan vs. State reported at (2012) 12 SCC
627, the Hon'ble Supreme Court held as under:
"42. In the case of circumstantial evidence, motive also
assumes significance for the reason that the absence of
motive would put the court on its guard and cause it to
scrutinize each piece of evidence closely in order to ensure
that suspicion, omission or conjecture do not take the place
of proof."
(Emphasis Supplied)
49. If the case is examined in the light of the aforesaid settled legal
propositions, we are of the considered opinion that there is nothing on
record to show there was any motive for the appellant to kill his wife.
50. The present appeal is to be decided on the touchstone of the law laid
down by the Hon'ble Supreme Court in paragraphs 46 to 48. After
analysing the post-mortem report, it is evidently clear that the injuries
no. 3, 4, 5, 10, 11 and 13 were inflicted as a result of passion and love
between the newly wedded couple. It is also evident from the records
that on the fateful night loud voices were being heard by the landlady
of the premises. We find force in the argument raised by the learned
counsel for the appellant that the couple was newly married and seem
to be more passionate about the relation, the appellant forced himself
to lie upon her and during this the deceased may be suffocated which
rendered her unconscious. Thereafter, the appellant was terrified and
in order to cover up the incident he somehow managed to take the
deceased to the hospital. On his way to the hospital, the appellant met
with an accident which may have resulted in injuries no. 1, 2, 6, 7, 8,
9, 12, 14, 15, 16 and 17 on the body of the deceased.
51. Applying law in the facts and circumstances of the present case, since
the appellant is lacking requisite intention to kill the deceased, the
present case does not fall under Section 302 of IPC. Furthermore, it
may be noticed that the appellant had driven the deceased to the
Hospital and duly informed the mother of the deceased about the
condition of her daughter being unwell and did not run away at the
first opportunity. This circumstance points towards the fact that the
appellant was not sure that his wife had died or else he would not have
brought her to the hospital for treatment. We may observe that in case
the appellant had any intention or desire to kill the deceased, and had
intentionally smothered her, his conduct post the occurrence would
have been different. The appellant did not dump the deceased to
nearby nala or any secluded place. We may also consider that only one
day prior to the incident the appellant along with the deceased had
visited a doctor (as evident from the testimony of DW3) for the
treatment of his wife as she was asthmatic. The aforesaid facts when
analyzed in conjunction with the attending circumstances enwombing
the present incident, strongly dispels the possibility that the appellant
harboured an intention to kill the deceased. Therefore, the act of the
appellant did not amount to murder; the nature of the offence
committed would be culpable homicide not amounting to murder.
Hence, the present case is squarely covered under Section 304 of IPC
which reads as under:
"Whoever commits culpable homicide not amounting to
murder shall be punished with imprisonment for life, or
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine, if the act
by which the death is caused is done with the intention of
causing death, or of causing such bodily injury as is likely
to cause death, or with imprisonment of either description
for a term which may extend to ten years, or with fine, or
with both, if the act is done with the knowledge that it is
likely to cause death, but without any intention to cause
death, or to cause such bodily injury as is likely to cause
death."
(Emphasis Supplied)
52. We may also usefully refer to the judgment in Jitender Pal Singh vs.
State reported at 2016 (2) JCC 906, wherein the Division Bench of
this Court had modified the order of conviction of the appellant to 304
Part II and the order on sentence was reduced to 7 years. Relevant
Para 45 reads as under:
"45. The case of the prosecution is premised on
circumstantial evidence and in absence of direct evidence,
we are required to reconstruct what may have transpired at
the locus in quo (scene of crime), after taking valuable clues
afforded from the material available on record that would
throw some insight. Perusal of the post-mortem report
reveals that no marks of violence were found upon the body
of the deceased other than the faint bruises and abrasions
on the neck that were evidently suffered during the process
of strangulation itself. It assumes significance that the hyoid
bone or the underlying structures in the neck region such as
the cartilages of the larynx and the rings of the trachea were
not found fractured. At this juncture we may profit from the
luminous observations expressed by Dr. Jaising P. Modi in
his authoritative treatise -„Modi- A Textbook of Medical
Jurisprudence and Toxicology, 24th Edition, Reprint 2012,
Lexis Nexis Butterworths, Wadhwa Nagpur‟. It has been
stated by the eminent author that the cartilages of the larynx
or the rings of trachea may be fractured when considerable
force is used [Pg. 454]. The said fact evinces that excessive
pressure was not exerted by the appellant and he may not
have harboured the intention to kill the deceased. The
appellant did not take undue advantage or act in a cruel or
unusual manner. The unfortunate incident seems to have
erupted at the spur of the moment and stemmed from
marital discord. It has emerged in evidence that the
appellant would frequently quarrel with his wife for
obtaining money to purchase liquor as he would largely
remain unemployed. A similar incident must have occurred
on the fateful day. The deceased must have resisted the
demands of the appellant and provocative utterances must
have been exchanged between the two. In a fit of rage
during the sudden quarrel the appellant grabbed the neck of
his wife that resulted in asphyxiation and snuffed her life."
(Emphasis Supplied)
53. In a subsequent judgment Anuj Kumar Tiwari vs. State of the NCT of
Delhi reported in 2016 IV AD (Delhi) 524, another Division Bench of
this Court, of which one of us (G.S. Sistani, J.) was also a member,
had also taken a similar view and the order of conviction was modified
to Section 304 Part I of IPC and sentence was reduced to 7 ½ years.
The relevant paras 33 and 34 read as under:
"32. In deaths because of ligature strangulation, petechiae
are usually present. It is generally more intense than in
other forms of strangulations because of the strength
applied by the arms in tightening the ligature. In the
majority of cases, the ligature furrow runs horizontally
round the neck on its front and sides. If the ligature is a
wide band of cloth with a smooth surface, the lesion of the
stratum corneum may be so minimal that no mark is
discernible. Non- intense ligature strangulations may simply
leave a reddish hyperaemia on the skin of the neck.
However, in cases of intense strangulation the larynx and
hyoid bone might suffer a fracture. Occasionally, a fine
white foam may adhere to the laryngeal, tracheal and
bronchial walls, which may be streaked with blood The
foam accumulates from bronchial secretion and tidal air
during dyspnoea.
.....
34. Applying the broad guidelines laid down by the Hon'ble
Supreme Court and this court in the afore-mentioned cases,
we are of the considered view that the evidence adduced by
the prosecution falls short of bringing the case within the
ambit of Section 300 of the Indian Penal Code and the
offence committed by the appellant is covered by Section
304 Part I of the Indian Penal Code. No weapon was used
for committing the offence. It, thus, stands proved that
unfortunate incident took place on account of sudden
quarrel between the deceased and the appellant; there was
no pre-mediation; no animus and motive to kill the
deceased. Therefore, having regard to the totality of the
evidence on record, we have no hesitation in coming to the
conclusion that the present case does not fall within the
ambit of Section 300 of the Indian Penal Code. The
aforesaid facts when analyzed in conjunction with the
attending circumstances enwombing the present incident,
strongly dispels the possibility that the appellant harboured
an intention to kill the deceased."
(Emphasis Supplied)
54. Applying the law to the facts of the present case, we are persuaded to
accept the alternative limb of submission advanced by the learned
counsel for the appellant that the present case would fall within the
ambit of Section 304 Part I of IPC. The ends of justice would be met
if we modify the sentence awarded to the appellants and sentence him
to undergo rigorous imprisonment for a period of 8 years.
55. Consequently, the appeal is allowed in part, the conviction and order
on sentence recorded by the Trial Court is modified to the extent
indicated hereinabove. The appeal stands disposed of. The fine
imposed upon the appellants and the default sentence awarded to them
shall remain unaltered.
56. The Trial Court record be sent back along with a copy of this
judgment.
57. Copy of this judgment also be sent to the Superintendent-Central Jail,
Tihar for updating the jail record.
G. S. SISTANI, J.
VINOD GOEL, J.
APRIL 28, 2017
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