Delhi High Court
Reena Yadav vs State on 4 February, 2022
$~S~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 4th February, 2022
+ CRL.A. 811/2013
DEEPAK @ DEEPU ..... Appellant
Through: Mr. Siddharth Aggarwal, Senior
Advocate along with Mr. Vikas
Padora, Mr. Vishwajeet Singh, Mr.
Divyank Tyagi, Mr. Dipanshu
Chugh, Mr. Tushar Mawkin,
Advocates.
versus
STATE NCT OF DELHI ..... Respondent
Through: Mr. Ashish Dutta, APP for the
State along with S.I. Ajeet Kumar,
P.S.: Neb Sarai.
+ CRL.A. 1485/2013
RAJESH @ PARVEEN ..... Appellant
Through: Mr. G. Tushar Rao, Senior
Advocate along with Mr. B.
Badrinath, Advocate (DHCLSC)
along with Mr. Mayank Sharma,
Ms. Sharavena Raghul & Mr.
Dhruv Bhardwaj, Advocates.
versus
STATE ..... Respondent
Through: Mr. Ashish Dutta, APP for the
State along with S.I. Ajeet Kumar,
P.S.: Neb Sarai.
+ CRL.A. 1501/2013
DILIP @ KARAN ..... Appellant
Through: Mr. S.B. Dandapani, Advocate.
Signature Not Verified
CRL.A. Nos. 811/2013, 1485/2013, 1501/2013, 1570/2013 & 88/2014
Signed By:SUNITA RAWAT Page 1 of 74
Location:
Signing Date:04.02.2022
10:39:32
versus
STATE ..... Respondent
Through: Mr. Ashish Dutta, APP for the
State along with S.I. Ajeet Kumar,
P.S.: Neb Sarai.
+ CRL.A. 1570/2013
REENA YADAV ..... Appellant
Through: Ms. Inderjeet Sidhu, Advocate
(DHCLSC) along with Ms.
Praavita Kashyap, Advocate on
behalf of Ms. Rebecca John,
Senior Advocate.
versus
STATE ..... Respondent
Through: Mr. Ashish Dutta, APP for the
State along with S.I. Ajeet Kumar,
P.S.: Neb Sarai.
+ CRL.A. 88/2014
STATE ..... Appellant
Through: Mr. Ashish Dutta, APP for the
State along with S.I. Ajeet Kumar,
P.S.: Neb Sarai.
versus
REENA & ANR. ..... Respondents
Through: Ms. Inderjeet Sidhu, Advocate
(DHCLSC) along with Ms.
Praavita Kashyap, Advocates for
Ms. Rebecca John, Senior
Advocate for R-1.
Mr. Nikhilesh Kumar, Mr. Priyank
Jain & Mr. Rishab, Advocates for
R-2.
Signature Not Verified
CRL.A. Nos. 811/2013, 1485/2013, 1501/2013, 1570/2013 & 88/2014
Signed By:SUNITA RAWAT Page 2 of 74
Location:
Signing Date:04.02.2022
10:39:32
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
J U D G M E N T
ANUP JAIRAM BHAMBHANI J.
Summary of Facts
By way of the present judgment, we propose to deal with a
batch of 05 criminal appeals bearing Crl. A. Nos. 811/2013,
1485/2013, 1501/2013, 1570/2013 and 88/2014, whereby 04
convicted appellants as well as the State have impugned judgment
dated 23.02.2013 and sentencing order dated 27.02.2013, by which
the learned trial court has convicted the 04 appellants for
committing offences under section 302 read with section 120B of
the Indian Penal Code 1860 ('IPC') and has sentenced all
appellants to rigorous imprisonment for life alongwith fine of
Rs.20,000/- each, with a default sentence of 01 year. By the same
judgment, the learned trial court has acquitted accused Meena
Gupta of the charge under sections 302 read with 120B IPC and the
charge under section 25 of the Arms Act, 1959 ('Arms Act') as
also acquitted Reena Yadav of the charge under section 25 of the
Arms Act, against which acquittals the State has preferred the fifth
appeal. For sake of completeness, it may be mentioned that one
Krishna, who was also initially suspected to have been involved in
the crime, was neither arrested nor charged in the matter.
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2. The case arises from an incident of 18.09.2009, when Karamvir
Yadav (PW-1) made a PCR call saying that around 08:45 a.m.
while standing outside his house, he looked up and noticed that his
nephew Parth Sarthi alias Yash (PW-2) was standing in the
balcony with his mouth taped-up and was indicating to PW-1 to
come upstairs; and on going-up to the flat on the second floor of
the building, PW-1 found that his brother Dalbir Singh, who used
to live there, was lying in a pool of blood with his hands tied
behind his back and with a wire round his neck. Thereupon, PW-1
says he removed the tape from his nephew's mouth and untied his
hands; and that his nephew told him that four persons had come
and were demanding some property papers from Dalbir Singh, the
deceased/victim; that they beat-up the latter; they taped and tied-up
PW-2; and left thereafter.
3. It transpired that PW-1 then took the victim to Batra Hospital,
where the victim was declared brought dead. Based on the
information received from PW-1, FIR No. 231/2009 dated
18.09.2009 came to be registered under sections 302/34 IPC at
P.S.: Neb Sarai and investigation commenced in the matter,
culminating in the filing of chargesheet dated 19.12.2009 and
supplementary chargesheet dated 23.07.2010 against 05 accused
persons. The particulars of the persons concerned are the
following :
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Appellant Name Relationship Convicted/Acquitted
A-1 Reena Yadav Wife of deceased Convicted under section
302/120B IPC; acquitted
under section 25 Arms Act
A-2 Rajesh @ Driver of Reena Yadav Convicted under section
Parveen and Meena Gupta's 302/120B IPC
parents; and alleged
paramour of Meena
Gupta
A-3 Deepak @ Deepu No relation Convicted under section
302/120B IPC
A-4 Dilip @ Karan No relation Convicted under section
302/120B IPC
A-5 Meena Gupta Sister of Reena Yadav Acquitted
(accused)
4. At the trial, the prosecution marshalled 31 witnesses, while the
defence presented 02 witnesses. The principal witnesses on whose
testimony the decision of the learned trial court proceeds are :
Witness No. Witness Name Relevance
PW-1 Karamvir Yadav Brother of the deceased
PW-2 Parth Sarthi alias Yash Son of the deceased
PW-3 Preeti Yadav Niece of the deceased
PW-4 N.K.Sharma Senior Finger Print Expert, Fingerprint
Bureau
PW-8 H.C.Rajesh Kumar Malkhana in-charge
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PW-9 H.C. Giriraj Prasad Head constable of Mobile Crime Team that
collected evidence
PW-18 Dr. Susheel Sharma Post-mortem doctor
PW-23 Ajay Kapoor Landlord of the Flat No. 2/19 B Jangpura.
PW-24 Ranjan Sharma Purchased the deceased's property in 2006
PW-27 S.I. Heera Lal Part of investigating team
PW-29 S.I.Karambir Singh S.I. at P.S. Neb Sarai- Assigned DD no. 3A
PW-30 Insp. Kulbir Singh SHO of P.S. Neb Sarai
DW-2 Dr. Ruby Kumari Medical Officer-in-Charge, CJ-06 Tihar Jail.
5. The essential basis for convicting the four appellants, as seen from
the impugned judgment, is that Reena had a matrimonial dispute
with her husband, the deceased; for which reason Reena and the
deceased used to quarrel and Reena used to threaten to kill her
husband. Reena had made several complaints to the police
authorities, alleging that her husband used to beat her up. The
learned trial court further found that for about 10-12 days prior to
the date of incident, Reena was staying away from her matrimonial
home; and that she did not even attend the last rites of the
deceased. In this backdrop, the learned trial court returned a
finding that Reena hatched a conspiracy along with Parveen,
Deepak and Dilip to eliminate the deceased; while it exonerated
Meena.
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Submissions of Counsel
Submissions on behalf of Reena Yadav (A1) :
6. Ms. Rebecca M. John, learned senior counsel appearing on behalf
of Reena Yadav submits that, based solely upon domestic discord
between her deceased husband and Reena, which is an undisputed
fact since several complaints arising from their matrimonial
discord were made by Reena herself before the police as well as
before the Crime Against Women (CAW) Cell, the serious charge
of murder has been foisted upon Reena. The impugned judgment is
challenged on behalf of Reena on the following essential basis :
(i) That PW-1 suspected Reena's involvement in his brother's
homicidal death, since there had been disputes between the
deceased and Reena as she is stated to have claimed a share
in the sale proceeds of certain properties the deceased had
sold. Furthermore, the fact that Reena did not participate in
the last rites of her deceased husband is also being used as a
circumstance to implicate her in the murder. It is submitted
that these are all baseless allegations attributing motive to
Reena, but which motive alone cannot be the basis of a
conviction for murder.
(ii) That Reena is being ascribed a role in the murder based upon
certain telephonic conversations, which she is alleged to
have had with other accused persons, as claimed to be seen
from the Call Data Records (CDRs); which conversations
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are canvassed as evidence of conspiracy to murder her
husband. It is urged that even assuming such conversations
exist, it is settled law, that without proof of what was said in
such telephonic conversations, the same would be
insufficient to infer conspiracy;
(iii) That the recovery of a knife, which is alleged to be one of
the weapons of the offence, is also sought to be attributed to
Reena. However, for one, the recovery is disbelieved and
disregarded by the learned trial court; and in any case, no
blood was found on the knife and furthermore, the knife was
not even shown to the post-mortem doctor to seek his
opinion as to whether that knife could have been a weapon
of offence; nor was the knife shown to PW-2, the alleged
eyewitness, as to whether he identified it as the one wielded
by one of the accused;
(iv) That the knife is alleged to have been recovered at Reena's
instance from the premises (flat) which was in the use and
occupation of her sister Meena. It is from this very premises
that Reena and Meena were both arrested on 23.09.2009;
after which, it is submitted, the keys to the premises were
available to the Investigating Officer. It is therefore urged
that the alleged recovery of the knife from this premises on
24.09.2009 carries no credibility since the place was in the
possession and control of the police, thereby tainting the
alleged recovery of the knife from that place;
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(v) That Reena is alleged to have been present along with
Meena, her sister and co-accused, and Parveen at Meena's
flat on 23.09.2009, when all three of them are alleged to
have been arrested by the Investigating Officer;
(vi) That however, PW-2, the son of the deceased, who is
canvassed as an eye-witness to the crime, makes no mention
even of the quarrel between the deceased and Reena; nor
does he make any allegation against her;
(vii) That the other star witness produced by the prosecution, i.e.,
the niece of the deceased PW-3, also makes no allegation
against Reena;
(viii) That in his testimony, PW-30 the Investigating Officer
attempts to connect Reena with the crime based upon the
CDRs, alleging that it was at Reena's instance that Parveen
and the other accused persons, who were known to Parveen,
beat her husband to death. However, even the CDRs do not
disclose any direct calls between Reena's cell-phone number
and that of Parveen's. This is so even if one ignores the fact
that the cell-phone number 9654387582, which is alleged to
have been used by Reena for this purpose, admittedly stands
in the name of one Santosh Tamang, who was never
produced as witness in support of the prosecution case; and
there is no tangible evidence to show that Reena was at all
using this cell-phone number. Use of this cell-phone is being
attributed to Reena only on the allegation that it was
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recovered from her as recorded in her personal search
memo;
(ix) That it may be noticed that there is only one solitary call
between Santosh Tamang's cell-phone number to Parveen's
cell-phone number, lasting about 60 seconds, which is on
20.09.2009 i.e. after the date of the offence, thereby belying
the charge of conspiracy, namely falsifying the theory of
prior meeting of the mind between the interlocutors;
(x) That it is the prosecution's theory that through her cell-
phone number 9999443780 Reena was in contact with her
sister Meena on cell-phone number 9891681844, which
latter number is alleged to have been used by Meena though
it stood in the name of one Zahid. It is further alleged that
Meena used the cell-phone number 9891681844 to be
constantly in touch with Parveen on 9717305439. It is
submitted that apart from the fact that there was every
justification for Reena to be in touch with her own sister
Meena, the allegation fails to stand scrutiny since the within
named Zahid was neither traced nor produced at the trial, to
establish that his cell-phone number was being used by
Meena. For this reason, the learned trial court itself observes
that there was nothing on record to link the cell-phone
number 9891681844 with Meena;
(xi) That the CDRs show that there were no calls between the
cell-phone numbers registered in the name of Reena
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(9999443780 and 9911271917) and the cell-phone number
9717305439 attributed to Parveen;
(xii) That insofar as the alleged dispute between Reena and the
deceased in relation to her share in property is concerned, it
is argued that, even on the prosecution's own reckoning, the
subject property was sold to PW-24, Rajan Sharma back in
2006 and the sale proceeds were received by the deceased in
2006; whereby, it is hard to accept that Reena was asserting
her claim to her share in the sale of that property in 2009,
least of all to the extent of conspiring to kill her own
husband for that reason;
(xiii) That it is also submitted that the CDRs in question cannot
be looked into since they are not supported by requisite
certificates under section 65B of the Indian Evidence Act,
1872 (Evidence Act) and do not fulfil the requirements of
that provision;
(xiv) That explaining her absence at the last rites of her deceased
husband, it is submitted on behalf of Reena, that she could
not join the last rites by reason of her illness, namely that she
was suffering from epilepsy. In evidence of her illness, an
MLC has been produced and marked in the course of
evidence. It is further explained that, as seen from the
domestic violence complaints made by Reena, she had not
only complained against the victim but also against his
family members, whereby it was only natural for Reena to
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stay away from attending the last rites of the deceased, to
avoid acrimony with his family members;
(xv) That most importantly, it is argued that in its judgment
acquitting Meena, the learned trial court observes that the
mere presence of Reena and Parveen in the premises of
Meena is not sufficient to bring home guilt upon Meena,
while at the same time holding Reena guilty in the same
circumstances. It is argued that if the presence of three
accused, Reena, Meena and Parveen is not sufficient to
convict Meena, the same circumstance of the three accused
being present together cannot be held to incriminate Reena;
(xvi) That it is also submitted, that according to the prosecution
itself, Parveen was supposed to be Meena's paramour,
whereby it would be natural for him to be present at the
premises. Equally, Reena's presence at Meena's premises is
not unnatural or suspect, since Reena is Meena's sister and
was staying away from her matrimonial home due to discord
with her husband;
(xvii) That the case against Reena is premised only on suspicion,
conjectures, and surmises; and proceeds solely on the basis
that since there was matrimonial discord between Reena and
the deceased, that was motive enough for her to conspire to
murder him. It is argued that motive alone, even assuming
that there was motive, cannot be the basis of conviction.
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CRL.A. Nos. 811/2013, 1485/2013, 1501/2013, 1570/2013 & 88/2014
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Submissions on behalf of Rajesh alias Parveen (A2) :
7. Mr. Tushar Rao, learned senior counsel appearing on behalf of
Rajesh alias Parveen (A2) (referred to mainly as Parveen)
challenges Parveen's conviction on the following basis :
(i) That PW-2 who is being cited as an eyewitness to the
incident, is unlikely to have been at home at 8:30 a.m. on a
Friday since it is the admitted position that he was a student
of Class-VII at the relevant time; and would therefore have
been attending school at that hour. Additionally, though
Parveen has a burn mark/scar on his hand and neck,
curiously PW-2 does not mention this scar in the rukka.
These aspects, according to the submission, point towards
PW-2 being a 'planted witness';
(ii) That insofar as the testimony of PW-3 is concerned, if it is to
be believed that she saw four accused persons coming down
the stairs, from the second floor, then how did PW-1 who
claims to have been standing outside the same building not
see the same persons. It is contended therefore that, PW-3 is
also not a credible witness;
(iii) That though Parveen is stated to have made his disclosure
statement on 23.09.2009, the alleged recovery of a pair of
blood-stained shoes belonging to him, is stated to have been
made at Parveen's instance several days later on 02.10.2009,
which makes the recovery at Parveen's instance doubtful;
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(iv) That the Investigating Officer has very neatly attributed one
recovery each to the accused persons, namely Reena, Meena
and Parveen, which is not believable since if they were
acting in conspiracy and all three of them were found
together in the same room at the time of their arrest, all three
would have known where the weapons/articles were kept;
(v) That notably, no money was recovered from or at the
instance of any of the accused persons, thereby belying the
only alleged motive for the crime;
(vi) That it is the prosecution's case that the Investigating Officer
did not have access to the flat from where recoveries were
made since the keys to the flat were handed-over by the
Investigating Officer and kept with the malkhana in-charge.
However, there is no entry in the malkhana register about
the retention of these keys;
(vii) That as for the CDRs, which form the basis of the alleged
conspiracy between the accused persons, the allegation is
that Meena was using the cell-phone number 9891681844,
which belongs to one Zahid, for speaking with the other co-
accused persons involved in the conspiracy. But the within-
named Zahid has neither been traced nor examined at any
stage; and since no evidence was adduced to prove the link
between Zahid and Meena and the use of Zahid's cell-phone
by Meena, the learned trial court has also disbelieved the
alleged use of the said cell-phone number by Meena;
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(viii) That though the State contends that Parveen and Deepak's
CDRs disclose their location as M.B. Road, Khanpur, on
18.09.2009 at 08:08:18 hours, where these two persons are
alleged to have spoken for 62 seconds, the Cell-ID Chart
was not duly proved since no certificate as required under
section 65B of the Evidence Act was filed in respect of such
chart in the case;
(ix) That the refusal by Parveen to face a Test Identification
Parade (TIP) on 25.09.2009 is being baselessly held against
him. Such refusal was justified since Parveen clearly stated
that he was shown to many people at the police station and
his photograph was also taken. Furthermore, along with
other accused, Parveen was also taken to the building where
the deceased used to reside, which is the crime scene, where
he was shown to several persons including the alleged
eyewitnesses, who must have been present, and saw Parveen
before the TIP and the dock identification happened;
(x) That the pointing-out memo dated 23.09.2009, whereby
Parveen is alleged to have pointed-out the place of
occurrence of the crime, is meaningless since PW-30 admits
in his cross-examination that the crime scene was already in
their knowledge before the accused persons allegedly led
them to the spot. This is further corroborated by PW-27, who
admits in his cross-examination, that the Investigating
Officer was very well aware of the place of occurrence
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before effecting the arrest of the accused persons and before
the preparation of the pointing-out memo;
(xi) That even the place and time of Parveen's arrest, as cited in
arrest memo dated 23.09.2009 are false as is evident by the
responses given by Reena, Meena as well as Parveen in their
respective statements under section 313 CrPC, which are all
consistent. Both Reena and Meena have said that only the
two of them were present at Flat No. 2/19B Jangpura at the
time of their arrest; and that Parveen was not present there at
all nor was he arrested or brought to the police station from
that premises. It is contended that Parveen was in fact
arrested before that, on 19.09.2009, when he was on his way
to work from his house;
(xii) That the medical evidence that has come on record, through
the post-mortem doctor PW-18, belies any intention to kill
since even though a wire was allegedly discovered wound
around the neck of the deceased, no ligature mark was
present at the neck region and the thyro-hyoid complex was
found intact. This shows that there was no pressure applied
with the wire around the neck, which evidences that there
was no intention to kill;
(xiii) That though the post-mortem report describes a stab wound
on the left buttock of the deceased, it is argued that the
buttock is not a vital area and a stab wound at that point is
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not enough to cause death in the ordinary course. Therefore,
stabbing there does not show any intention to kill;
(xiv) That the post-mortem doctor has opined that death was
caused by reason of shock as a result of multiple injuries
caused by stabbing and blunt force; but the knife and the
pistol, the allegedly recovered weapons, were never put to
the post-mortem doctor for his opinion, as to whether these
could have been the weapons of offence;
(xv) That peculiarly, the post-mortem doctor has also observed
that surgical bandages were present on the head, on the left
hand and the right elbow of the deceased, which contradicts
the prosecution's story that the victim was found dead at the
crime scene, since no one would put bandages on a dead
body.
Submissions on behalf of Deepak alias Deepu (A3) :
8. Mr. Siddharth Aggarwal, learned senior counsel appearing on
behalf of appellant Deepak alias Deepu (A3) submits that
Deepak's conviction is premised essentially on three
circumstances. First, that Deepak has been identified as one of the
assailants by PW-2 and PW-3; second, that Deepak's specimen
fingerprints matched chance fingerprints lifted from the scene of
crime; and third, that the CDRs of various accused persons,
including Deepak, indicate that they were part of a conspiracy to
murder the deceased. Mr. Agarwal makes the following
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submissions against the conviction of the accused Deepak alias
Deepu :
(i) That the circumstance that Deepak refused a TIP on
25.09.2009 is being held against him. This, it is submitted, is
not an incriminating circumstance, since Deepak has
explained in his statement recorded under section 313 CrPC,
that he refused a TIP because he had been shown to many
people in the police station prior to the TIP and his
photographs were also taken. This statement is corroborated
by the fact that Deepak's photograph was indeed found on
the judicial record during the deposition of the Investigating
Officer PW-30 and PW-9. Although PW-30 attempts to
explain this by saying that photographs were taken in order
to create Deepak's dossier, that explanation is falsified on a
comparison of the photographs of Deepak as available on the
trial court record and the one appearing in his dossier, both
of which are different. Also, that does not rule-out the fact
that Deepak's photographs were available to be shown to
witnesses for the purposes of the TIP and at the stage of
dock identification;
(ii) That it is the admitted case of the prosecution that on
23.09.2009, Deepak along with other accused persons, was
taken to the house of the deceased, where both PW-2 and
PW-3 were likely to have been present; and that this
happened prior to the TIP being conducted. Therefore, even
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the subsequent dock identification of Deepak by PW-2 and
PW-3 does not carry any weight;
(iii) That since both PW-2 and PW-3 are related to the deceased,
that is additional reason why their testimony requires higher
scrutiny;
(iv) That the testimony of PW-2, who was the son of the
deceased, warrants closer scrutiny also for the reason that he
is a 'child witness' studying in Class-VI/VII; and is not an
'injured witness';
(v) That since it is the prosecution case that the incident
occurred at possibly the busiest time of the day, between
08.00 a.m. and 09.00 a.m on a Friday in a three-storeyed
house situated, in a locality with small plot sizes and closely
built houses, it is hard to believe that no other person was
alerted upon hearing noises of, what the prosecution itself
says, was a protracted attack upon the deceased by the
accused persons spanning over 30 minutes;
(vi) That a peculiar aspect of PW-2's testimony is that he gives
no description of the actual attack on his father but simply
says "... they killed my father and went away ..."; without
affording any particulars nor delineating the roles of the
various assailants. Though PW-2 provides an identification
mark for appellant Rajesh alias Parveen, being a scar/burn
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mark on his hand and neck, no such identification marks are
specified for Deepak;
(vii) That though PW-2 identifies Deepak as the assailant who
wielded the pistol, the witness does not say that the pistol
was fired; nor is the use of pistol borne-out from the medical
evidence, that is the MLC or the post-mortem report. No
pistol was recovered at the Deepak's instance; but was
recovered instead, at the instance of appellant Meena. Even
the recovery of the pistol was disbelieved by the learned trial
court considering the manner in which it was stated to have
been recovered. It is pointed-out that PW-2 was also not
made to identify the pistol in his deposition in court; nor did
the prosecution check for any fingerprints on the allegedly
recovered pistol;
(viii) That a knife was subsequently recovered, statedly at the
instance of appellant Reena but PW-2 does not depose about
any of the assailants carrying a knife;
(ix) That a conjoint reading of PW-2's deposition in court and
his statement dated 18.09.2009 recorded under section 161
CrPC show that he used the Hindi word 'mara', meaning
assaulted, which bolsters the theory that if at all, the
assailants intended only to assault the deceased and did not
intend to kill him. Accordingly, when two views are possible
on the same facts, which is the case here, as per settled
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principles of law, the view favourable to the accused ought
to be adopted;
(x) That though PW-2's statement under section 161 CrPC, is
dated 18.09.2009, which is the date of the incident; however,
in his deposition in court, PW-2 says that his statement was
recorded by the police 2-3 days after the incident, which
lends credence to the possibility that PW-2 is a 'put-up'
witness;
(xi) That PW-3's name does not find mention either in the rukka
or in the statement of PW-1 (complainant and brother of the
deceased), which bolsters the possibility that PW-3 was not
present at the spot and did not see the assailants at all. Even
assuming PW-3 was present at the spot, admittedly PW-3
only got a fleeting glimpse of the assailants as she saw them
hurriedly climbing down the stairs; and therefore, Deepak's
dock identification by PW-3, ought not to be given
weightage;
(xii) That as for Deepak's fingerprints having allegedly been
found at the scene of the crime, this circumstance is baseless
since, firstly, there is no evidence to indicate that Deepak's
specimen signatures were at all taken; secondly, there is no
evidence to indicate as to who took Deepak's purported
specimen fingerprints, or when, or in what manner. There is
also nothing to indicate as to how and where Deepak's
purported specimen fingerprints were kept before being sent
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to the Fingerprints Bureau. There is no seizure memo or
panchnama to document the taking of specimen fingerprints.
None of the witnesses involved in taking or in the
comparison of fingerprints has deposed about taking, storing
or handing-over of the purported specimen fingerprints.
Secondly and most importantly, the purported specimen
fingerprints were never exhibited during the trial, and
peculiarly, they were simply "... taken on record ..." by the
learned trial court during the examination-in-chief of PW-
15: S.I. Gyanender Singh, who is the fingerprint expert, in a
manner contrary to law;
(xiii) That the position of 'chance prints' alleged to have been
lifted from the scene of the crime is similar, namely PW-4:
N.K. Sharma, who is stated to have lifted the chance prints
from the crime scene, states that he had handed-over the
same "... in open condition and not in a sealed cover ..." to
the record keeper A.S.I. Satish Kumar on 18.09.2009; but
the said A.S.I. Satish Kumar was neither cited nor produced
as a witness during trial. Furthermore, neither the malkhana
register nor the malkhana in-charge PW-8, HC Rajesh
Kumar has shed any light on how the chance prints were
handled and by whom. In the course of his testimony in
court, PW-4 : N.K. Sharma does not identify that the chance
prints placed before the court are the same ones that he had
lifted from the scene of the crime on 18.09.2009. It is
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submitted that all this indicates a serious possibility that the
chance prints may have been tampered with;
(xiv) That comparison of the purported specimen fingerprints with
the chance prints was made despite the fact that the chance
print 'Q-1' in question, was a partial print, which could not
have fulfilled the bare minimum requirement of an eight-
ridge characteristics comparison, that is required to conclude
matching fingerprints. In view thereof, it is submitted that,
the alleged circumstance that Deepak's fingerprints were
found on the crime scene, is unsustainable;
(xv) That the prosecution case that Deepak was in touch with the
other alleged co-conspirators on cell-phone No.
9654050805, is also baseless, since the said number was
found registered in the name of one Deepika Rawat, who is
stated to be Deepak's sister; but the prosecution did not
examine either Deepika Rawat or any other caller mentioned
in the CDRs of that cell-phone number and therefore, failed
to prove that the number was at all being used by Deepak, or
that it was in his possession during the relevant period of
time. It is submitted that even the Cell-ID Chart relating to
the said number has not been placed on record to attempt to
establish Deepak's location at the time of the incident.
Peculiarly, no questions were put to Deepak as regards the
possession or use of the cell-phone number 9654050805
while recording his statement under section 313 CrPC; and
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instead, a different cell-phone number 9717305439 was put
to him; which number is anyhow attributed by the
prosecution itself to appellant Parveen. It is pointed-out that
cell-phone No. 9654050805 attributed to Deepak, clearly
finds mention in the personal search memo of appellant
Meena. This anomaly is later sought to be clarified in further
examination-in-chief of the Investigating Officer PW-30, as
being an inadvertent error committed by him, which does not
inspire confidence;
(xvi) That the foregoing aspects cast serious doubt on the
prosecution theory as to the possession, use or recovery of
the cell-phone No. 9654050805 by and from Deepak. It is
submitted that the learned trial court holds that Deepak had
failed to adduce any evidence to show that cell-phone No.
9654050805 was not being used by him; while in the case of
appellant Meena, the learned trial court says that the use of
the cell-phone No. 9891681844 cannot be attributed to
Meena since the registered owner thereof was not examined,
and hence the identity of the SIM card owner has not been
established. It is contended that thereby, the learned trial
court adopts two contrary standards for proving the use and
possession of cell-phones by the two appellants;
(xvii) That the charge of criminal conspiracy rests entirely on the
use of cell-phones and the CDRs, the allegation being, that
inter-alia Deepak, Parveen and Dilip alias Karan were in
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constant touch with Reena and Meena, as part of such
conspiracy. In this behalf, it is submitted that there are no
calls between Deepak and Reena or Meena or Dilip alias
Karan. Furthermore, Deepak was not afforded an
opportunity to explain his calls to Parveen, since the calls
between the two were not put to him while recording his
statement under section 313 CrPC. Also, since the
prosecution has failed to establish the possession and use of
cell-phone number 9891681844 by Meena, the CDRs
relating to the said number cannot be relied upon against the
remaining accused persons either. It is submitted that if the
CDRs relating to Meena's cell-phone number are eschewed
from consideration, there is nothing to show that any calls
were made between Reena and the remaining accused
persons, barring a single call of 60 seconds duration, made
by Reena on 20.09.2009 i.e., after the date of the incident
which happened on 18.09.2009, to Parveen. No CDRs
relating to Dilip alias Karan have been adduced in evidence;
(xviii) That in any case, as is the settled position in law, the mere
factum of showing phone-calls between co-accused persons
is insufficient to establish a case of conspiracy, without
establishing the contents of such phone calls;
(xix) That the prosecution has failed to establish against Deepak
any motive or intention to cause death. The prosecution has
failed to adduce any evidence to support its theory that the
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offence was committed for monetary reward. No searches
were conducted at Deepak's residence or at any other place
related to him; nor was the crime scene investigated for any
missing valuables. Only a paltry sum of Rs. 50/- was
recovered from Deepak during his personal search; and
moreover, no question in this behalf was put to Deepak
during his statement recorded under section 313 CrPC;
(xx) That no recovery whatsoever was effected at Deepak's
instance. It is submitted that considering the nature of
injuries on the deceased and in the absence of any clearly
delineated roles having been ascribed by the alleged
eyewitness to the various assailants, it cannot be concluded
that there was any intention to kill the victim. In such
circumstances, it is submitted that in the alternative, the
conviction of the accused persons, inter-alia Deepak, ought
to be converted from one under section 302 IPC to that
under section 304 (Part-II) read with section 34 IPC.
Submissions on behalf of Dilip alias Karan (A4) :
9. Mr. S.B. Dandapani, learned counsel appearing on behalf of Dilip
alias Karan challenges the latter's conviction on the following
basis:
(i) That PW-2, the alleged eyewitness to the incident, did not
give a description of Dilip in the rukka though he gave a
description of other accused persons;
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(ii) That though the allegation is that Dilip was the one who put
tape on the mouth and hands of PW-2, no fingerprints were
picked-up from the tape alleged to have been used;
(iii) That though PW-1 states that he removed the tape from the
hands and mouth of PW-2 in the balcony, according to the
Investigating Officer, the tape was found on the staircase,
with no explanation as to how it got there;
(iv) That though PW-2 is cited as an injured eyewitness, no MLC
of PW-2 was conducted, which casts doubt if the witness
was at all injured, thereby also creating doubt as to his
presence at the spot;
(v) That Dilip was fully justified in refusing TIP and his dock
identification was also meaningless since Dilip had already
been shown inter-alia to PW-3 in the police station on
02.10.2009 ;
(vi) That there is nothing in the CDRs of the accused persons
which evidences that Dilip was in contact with any of the
other accused; and in fact, in his statement under section 313
CrPC, Dilip has said that he did not know Parveen until he
met him in prison;
(vii) That though Dilip's arrest memo dated 23.09.2009 shows the
place of his arrest as P.S.: Neb Sarai, the Investigating
Officer PW-30 himself says in his testimony, that after
making inquiries as to the whereabouts of his companions,
Parveen disclosed that they were drug addicts and would be
found somewhere at New Delhi Railway Station or India
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Gate Boat Club. On the other hand, in his statement under
313 CrPC, Dilip says that he was picked-up when he was
leaving his place of work i.e., Khanna Tent House at
Paharganj;
(viii) That there is no motive whatsoever for Dilip to have killed
or participated in the killing of the victim; and
(ix) That nothing was found on Dilip's person at the time of his
arrest; nor was any recovery made at Dilip's instance.
Submissions on behalf of the State :
10. Mr. Ashish Dutta, learned Additional Public Prosecutor, appearing
on behalf of the State has endeavoured to sustain the judgment of
conviction of the four appellants; and has argued for reversing the
acquittal of accused Meena of the charges under sections 302/120B
IPC and under section 25 Arms Act and the acquittal of Reena of
the charge under section 25 Arms Act. The principal submissions
advanced on behalf of the State are :
Submissions against appellants Reena, Rajesh @ Parveen & Deepak
and Dilip @ Karan
(i) That the culpability of appellant Reena is evident from the
fact that she had frequent fights with her husband, the
deceased, in relation to money, which are evidenced by the
several complaints made to the police by Reena herself,
which are duly exhibited in the course of the trial. The filing
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of these complaints, arising from disputes with the deceased,
is also admitted by Reena in her statement recorded under
section 313 CrPC. Upon a careful examination of the
complaints, it transpires that Reena's quarrel with her
husband was with respect to the sale of a plot of land at
Sainik Farms, from which she was demanding her share of
sale proceeds. The disputes also related to sale of another
property, sold by the deceased in 2009, the sale documents
whereof were proved in his deposition by PW-19 Mahaveer
Singh; all of which shows that the crime was committed with
the purpose of illegally acquiring the money which was
received by the deceased from sale of the said properties;
(ii) That in the course of his deposition PW-1 has stated clearly
that in the context of the disputes with her husband, Reena
used to threaten him, saying she would get him killed; and
for about 10-12 days before the date of the incident, Reena
had not been residing with the deceased in their matrimonial
home. It is submitted that Reena did not even come for the
last rites of her deceased husband. These facts are admitted
by Reena in her statement recorded under section 313 CrPC.
The statement of PW-1, the complainant, who also says that
Reena used to quarrel with the deceased and had threatened
to kill him, has been consistent and Reena has failed to
cross-examine PW-1 on this aspect;
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(iii) That Reena gave a false excuse for not being present at her
husband's last rites, when she said she was suffering from
epilepsy and was sick at that time, the falsity of which
excuse is proved by the testimony of defence witness DW-2
Dr. Ruby Kumari, who says that Reena was not suffering
from any illness at the relevant time and that all her
parameters were normal. In these circumstances, Reena has
failed to establish her illness, the burden to prove which was
entirely on her;
(iv) That the conspiracy between the accused persons is
evidenced by the fact that to achieve her illicit purpose,
Reena sought the help of her sister Meena, who introduced
Reena to her flatmate and paramour Parveen, with whom
Meena had been residing at Flat No. 2/19-B, Jangpura. The
fact that Meena and Parveen were residing together is
established inter-alia by the testimony of PW-23 Ajay
Kapoor, who is the landlord of the premises in question, and
who categorically says that Meena and Parveen used to
reside in the said flat. It will be seen that in his statement
refusing TIP before the learned Metropolitan Magistrate on
25.09.2009, Parveen also mentions the same premises as his
residential address. The fact that Parveen and Meena were in
a romantic relationship is evidenced by a compromise deed
dated 03.11.2008 signed between Parveen and his wife
Rosie, in the presence of Reena and Meena's mother, which
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document has also been marked as PW 30/X-1 in the course
of trial;
(v) That the conspiracy is further evidenced by the fact that
Parveen called upon his friends, the other appellants Deepak
and Dilip alias Karan as well as another person Krishna
(who is absconding), who all conspired to murder the victim;
(vi) That the CDRs relating to the cell-phone numbers of the
appellants and accused Meena, as proved by the concerned
nodal officers from the respective telecom service providers,
show that the said persons were constantly calling and
receiving calls from each other at the time when the offence
was being committed. The Cell-ID Charts show Khanpur as
the location of Parveen and Deepak at the time of
commission of the offence. In this behalf, the State has also
placed on record a tabulated summary of the calls made,
purportedly between the accused persons, and their location
as per the Cell-ID Charts, arguing that the existence of such
calls is proof of their involvement in the commission of the
offence;
(vii) That the chance fingerprints lifted from the crime scene
match the specimen fingerprints of appellant Deepak, which
proves Deepak's involvement in the crime;
(viii) Eye-witnesses PW-2 and PW-3 have identified all the
accused persons, which clinches the prosecution case against
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all of them. Notably, the testimony of the said witnesses has
been consistent and has withstood cross-examination;
(ix) That the submission of the appellants that the statements and
testimony of child witness PW-2 is bereft of any particulars,
carries no weight, inasmuch as it has repeatedly been held
that the evidence of a child who has witnessed a heinous
crime may not be brushed aside even if it lacks certain
particulars;
(x) That the foregoing circumstances point unerringly to the
guilt, not only of the four appellants, but also of accused
Meena, who also ought to have been convicted.
Furthermore, the acquittal of both Reena and Meena for the
offence under section 25 Arms Act, also ought to be
reversed.
Submissions against Meena
(xi) That the fact that accused Meena was using the cell-phone
number 9891681844, which belongs to Zahid, is evidenced
by the deposition of PW-23 Ajay Kapoor, the landlord of the
apartment where Meena resided, who also brought in his
deposition the rent agreement signed with Meena (Exhibited
as PW 23/A) and a copy of the tenant verification form. In
the tenant verification form Meena has stated her cell-phone
number as 9891681844, which is the same number that she
used during the commission of the offence. Since
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inadvertently the tenant verification form was not exhibited
during the deposition, for that purpose the prosecution
moved an application under section 91 CrPC read with
section 311 CrPC. for recalling PW-3 and for production of
that document, which however was rejected by the learned
trial court. Subsequently, a criminal revision petition bearing
Crl. Rev. Pet. No. 116/2013 filed before the High Court was
rendered infructuous, since by the time it came-up for
hearing, the learned trial court had already pronounced the
impugned judgment. However, it is pointed-out, that in the
said criminal revision petition, the High Court gave liberty to
the State to raise the matter of recall of witness and
exhibition of the tenant verification form in the present
appeal;
(xii) That the fact that Meena was using the cell-phone number
9891681844 is also borne-out from the fact that the cell-
phone recovered from Meena with IMEI No.
353205036144970 is co-relatable with the CDRs of the said
cell-phone number. Although there is a discrepancy in the
last (15th) digit of the IMEI number appearing in the CDRs,
namely that the last digits shown in the CDRs are '970'
instead of '978' (which are the last digits of the IMEI
number of the cell-phone recovered from Meena), that
discrepancy is irrelevant in light of the decision of the
Hon'ble Supreme Court in State (N.C.T. Of Delhi) vs Navjot
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Sandhu 1 which says that since the 15th digit of an IMEI
number is known to be a 'spare' digit and the last digit is
transmitted by a cell-phone as '0' according to GSM
specifications, this discrepancy is of no consequence. The
State emphasises that the use of the said cell-phone number
by Meena connects all the accused persons with the crime;
(xiii) That PW-20, PW-27 and PW-30 have all testified to the
recovery of the knife through Reena and the pistol through
Meena. Although the learned trial court has disbelieved both
recoveries on the reasoning firstly, that the premises from
which the recoveries were made was accessible to all
including the police; and secondly, by reason of delay in
making such recoveries; the State contends that these are no
grounds to disbelieve the recoveries made. Furthermore, the
recoveries of the knife and pistol were made, not from a
place visible to the naked eye but from inside a sofa, where
the weapons were hidden by Reena and Meena; That as per
FSL report dated 28.05.2020, blood was found on the pistol
recovered at Meena's instance.
Discussion
11. We have given our thoughtful consideration to the submissions
made by learned counsel on both sides. We have also carefully
perused the record and have examined the evidence. We consider it
(2005) 11 SCC 600
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appropriate to deal with the submissions made by learned counsel
as weighed against the evidence on record and the circumstances
which have been proved thereby.
Eyewitness & Other Oral Testimony
12. Parth alias Yash (PW-2), the son of the deceased, and Preeti Yadav
(PW-3), the niece of the deceased, have been canvassed by the
prosecution as eyewitnesses to the incident. Karamvir Yadav (PW-
1), who is the brother of the deceased, is cited as witness to events
subsequent to the incident. The relevant portions of their
testimonies are as under :
Deposition of PW-2 :
"On 18.09.2009, I had (sic, heard) a noise from the IInd floor and I
came down stairs. I saw that four persons had caught hold of my
father and had tied the hands of my father. One of the person was
having the pistol in his hand and the other one having the tape in his
hand. The person having the tape taped/covered my mouth with the
tape and also tied my hands with the tape towards the backside and
they were asking for the money from my father. Thereafter they
killed my father and went away, I came to the balcony. My uncle
Karambir was standing down stairs. I called him upstairs with the
gesture/pointing by shaking my head. My uncle came upstairs and
opened me and took my father to the hospital. The police recorded my
statement to this effect. On 02.10.2009, I along with my uncle
Karambir, my great father Mahavir and my sister Priti had gone to
the police station where I saw three accused persons. I immediately
identified them. They were the same persons who had killed my
father. All those three persons whom I had see in the police station are
present in the court today and correctly identified by the witness. The
witness points out towards accused Deepak and states that accused
Deepak was having gun in his hand. The witness points out towards
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accused Dalip and states that he was having the tape in his hand had
put the tape on his mouth and on his hand. The witness points out
towards accused Praveen and states that there was a burn scarce on
his hand and neck and was asking money from my father. These
three persons along with one more person had killed my father, IO
recorded my statement to this effect."
(PW-2's examination- in-chief dtd. 15.12.2010)
*****
"... It is wrong to suggest that I have seen the accused Deepak on
20.10.2010, 30.10.2010 and 19.11.2010 so I identified him. ...
*****
".... None had told me that accused Deepak and Dalip are accused
persons in this case VOL. I had myself identified the accused persons.
It is incorrect to suggest that I have identified accused Dalip in court
at the instance of the police or the counsel of the complainant. It is
further incorrect to suggest that I was shown the accused Deepak and
Dalip by the police before 02.10.2009 in the police station. It is wrong
to suggest that accused persons were shown to me immediately after
their arrest in the police station."
(PW-2's cross-examination dtd. 15.01.2011)
Deposition of PW-3 :
"On 18.09.2009 I had come from the morning walk at about 8.30
AM and at that time I saw four persons coming down from the stairs
of the house of my deceased uncle Dalbir Singh. Out of the above
four persons, two persons were healthy and two were thin built. One of
them was having burn impression/mark on his neck as well as on his
hand. Two persons were of bit dark complexion and one was having
long hairs. I thought that they might have come to my deceased uncle
for some work so I went to my house and was getting ready for my
office and in the meantime I heard a noise. I could perceive the voice
of the noise to be of my uncle Ashok, of my mother and others. So, I
also ran to them and saw that the PCR van was there and my uncle
namely Karamvir was taking my deceased uncle to the hospital in the
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PCR van and thereafter I came to know that my uncle Dalbir Singh is
no more.
*****
"On 02.10.2009 I alongwith my cousin brother Yash @ Parth, my
uncle Karamvir and my father went to PS Neb Sarai where a number
of persons were present. I saw three persons present there whom I had
seen coming down from the stairs of house of my uncle on the date of
incident and I immediately identified them and told the police
accordingly. I came to know the names of the said persons as Deepak,
Praveen and Karan."
(PW-3's examination-in-chief dtd. 21.03.2011)
xxxxxxx by Sh N. Kush counsel for accused Meena
Nil. Opportunity given
xxxxxxx by Sh S.K.Saxena counsel for accused Deepak and amicus
curiae for accused Dalip
Cross examination deferred at the request of ld counsel
(PW-3's cross-examination dtd. 21.03.2011)
xxxxxxx by accused Reena
Nil. (opportunity given)
xxxxxx by accused Dalip
Nil. (opportunity given)
xxxxxxx by accused Rajesh
Nil. (opportunity given)
xxxxxxx by accused Deepak
Nil. (opportunity given)
(PW-3's cross-examination dtd. 02.04.2011)
"All the accused had come down from the stairs one by one. I can
identify the accused by face and tell the court who had come down
first. I had not been shown any of the accused earlier in the PS and
asked me to identify them. I had not noticed the color of the clothes
wore by the accused persons.
(PW-3 cross examination dtd. 07.08.2012 by counsel for Parveen )
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Deposition of PW-1 (complainant)
"I am staying on the third in the above mentioned house no. 154, Khan
Pur. My elder brother deceased Dalbir Yadav was living along with
his family in the adjacent house which is also numbered as 154, Khan
Pur. On 18.09.2009 at about 8:30 am I had gone to wash my car
parked near the MCD office in front of my house. When I came back
after washing the car towards my house and stood in front of my
house. My nephew Parth dropped his shoes from the second floor. I
saw upward. There was a tape applied on the mouth of Parth @ Yash
and he was pointing out me to go upstairs. I asked him from the down
stairs whether his mother or his father had put the tape on his mouth to
which he refused by the gesture of his head. I went upstairs. I saw that
the hands of Parth were tied to his back side. I opened his hands and
removed the tape. I also saw my brother lying with his face and
stomach towards the floor ("mera bhai ulta pada tha"). The hands of
my brother Dalbir were tied with the wire towards the backside and
one wire was also tied from his mouth towards the backside and the
blood in huge quantity was also lying there. My nephew Parth told me
that "four persons had come to the house and that they were asking for
the papers of the property and the money and that they have killed my
father and tied the hands of my father. They also tied my hands and
applied tape on my mouth". I immediately made a call at 100 number
and told that my brother has been shooted. The PCR Van came there.
I removed my brother to Batra Hospital where the doctor declared my
brother dead. Accused Reena and my deceased brother Dalbir used to
quarrel often and accused Reena used to threaten to kill my brother
and from about 10-12 days before the incident accused Reena was
away from home and was not coming home. Accused Reena even did
not come at the last rites/cremation of my deceased brother Dalbir
Yadav."
(PW-1's examination-in-chief dtd. 30.10.2010)
"I dropped the tape by which the mouth and hands of my nephew
Parth was tied there only. I did not handle the shoe dropped by Parth.
My brother Dalbir used to tell me about the threats given by accused
Reena to him. On 2-3 occasions the accused Reena got my brother
Dalbir locked up in PS-Neb Sarai."
(PW-1's cross examination dtd. 30.10.2010 by counsel for Meena)
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Recoveries
13. FSL report dated 28.05.2010 records that 19 parcels/exhibits were
examined. According to the prosecution, the following recoveries
made at the instance of the appellants constitute incriminating
evidence, details of which have been summarized below:
(i) The recovery of a pair of shoes, alleged to belong to and
recovered at the instance of Parveen, are referred to as Exb.-
17 in the FSL report. Human blood was detected on the
shoes; however, blood grouping of the same gave an
'inconclusive result';
(ii) One metallic knife with wooden handle, which is alleged to
have been recovered at the instance of Reena, is Exb.-18 in
the FSL report. No blood could be detected on this exhibit;
(iii) One pistol, described as 'a country made pistol' is alleged to
have been recovered at the instance of Meena, which is
Exb.-19 in the FSL report. Human blood is stated to have
been detected on this pistol; however, blood grouping on this
pistol gave an 'inconclusive' result.
Medical & Forensic Evidence
14. Insofar as the medical and forensic evidence is concerned, it
comprises the Medico-Legal Report (MLC) dated 18.09.2009 as
conducted on the victim at the Batra Hospital & Medical Research
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Centre, New Delhi which declared him 'brought dead'; but notably
recorded, that both the victim's hands were tied behind his back
with a wire and a wire with a knot was circled multiple times
around his neck. In addition, several lacerated and incised wounds
and bruises were also recorded in the MLC. The nature of injuries
was opined as 'dangerous'.
15. Post-Mortem Report dated 19.09.2009 as conducted at the All
India Institute of Medical Sciences, New Delhi, describes the
following 23 wounds including multiple lacerations, abrasions and
contusions with a solitary stab wound on the left buttock but no
gunshot injury:
(i) "A c shape laceration 2x0.3 cms x bone deep present at left
occipital region of the scalp associated with haematoma.
(ii) A laceration (incise looking as mentioned in post- mortem
report at mark Y) 4x3cms x bone deep present at left parital
occipetal region of scalp, at 1 cm left to midline, associated
with haematoma.
(iii) A c shape laceration 1.5 cm x 0.3 cm x bone deep present at
right temporal region of the scalp associated with
haematoma.
(iv) A linear laceration 2 x 0.2 cms x bone deep present at right
temporal region of the scalp 6.5 cm right to midline
associated with haematoma.
(v) A linear laceration 3 x 0.4 cms x bone deep present at the
right parital region of the scalp 5 cms right to midline
associated with haematoma.
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(vi) A linear laceration 2 x 0.4 cms, 2 cms above the left eyebrow
associated with haematoma and left black eye.
(vii) A laceration 1.5 cms x 0.3 cms x bone deep present at
midline of forehead at upper side associated with
haematoma.
(viii) A laceration 5.5. cm x 1 cm x bone deep present at 2 cms
above the right eyebrow associated with haematoma.
(ix) A laceration of right ear concha 3 cms x 0.3 cm x muscle
deep associated with haematoma.
(x) A laceration 4 cm x.1 cm x bone deep present at 3 cms right
outer aspect of right eyebrow of face associated with
haematoma.
(xi) Multiple abrasions- contusions present in an area 5 cms x 4
cms at left cheek region, brownish red in colour.
(xii) A linear abrasion 10 cms x 1 cm, extending fro left angle of
mouth to left mandibule angle region, another 7 cms x 1 cms
linear abrasion extending from right angle of mouth to right
mandibule angle region, directed down and outward of both
sides, bluish-brownish in colour.
(xiii) Multiple lacerations size 0.4 cm x 0.3 cm x miscle deep
present at mucosal surface of both upper and lower lip
associated with haematoma.
(xiv) A linear abrasion 2 cms x 0.5 cms present at right
mandibular region and three linear abrasions 0.5 cm x 0.1
cm present at left upper aspect of neck, brownish in colour,
no extra vessation of blood present in neck tissue. No.
ligature mark present at neck region and thyro-hyoid
complex intact.
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(xv) A contusion 4 cms x 3 cms, brownish in colour present at
outer aspect of upper 1/3 of right arm.
(xvi) An incised wound 12 cms x 1 cm present at right elbow and
right arm region associated with haematoma.
(xvii) Multiple lacerations size varies 1 cm x 0.3 cm present at the
dorsum aspect of right hand in an area 6 cms x 5 cms at
base of thumb and knukkle region.
(xviii) Three abrasions (size 2.5 cms x 2 xms) present at left elbow
region in an area 5 cms x 5 cms, brownish in colour.
(xix) Multiple lacerations size 0.3 cm x 0.2 cm x bone deep
present at dorsum aspect of left hand.
(xx) Grazed abrasions in an area 5 cms x 6 cms at left shoulder
region, brownish in colour.
(xxi) A stab wound horizontally placed 3 cms x 1 cm x muscle
deep, outer angle sharp edge undermined track directed
downward, forward and inward present at left buttock
situated 62 cms below the shoulder tip, 80 cms above the left
heel and 8 cms left to midline.
(xxii) Multiple contusions in an area 6 cms x 5 cms at back of left
thigh at middle aspect, brownish in coloyr.
(xxiii) Abrasions 2 cms x 1 cm brownish in colour, present at left
lower outer quadrant of left hip."
In the post-mortem report, the doctor records that the cause of
death was :
" .... shock as a result of multiple mentioned injuries in Post
mortem report prior to death. Injuries are caused by stab and
blunt force sufficient to cause death in ordinary course of
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nature. All the injuries mentioned from no- 1-23 are
antemortem in nature, fresh in origin, inflicted prior to death."
Position of Law on Various Aspects
16. We may now briefly discuss the legal position in relation to
various aspects of the matter, as is relevant for deciding the present
batch of appeals.
On Eye-witness Testimony
17. At this point, it is relevant to allude to how the law views eye-
witness testimony in general, and in particular, eye-witness
testimony of an injured witness, and even more pertinently, eye-
witness testimony of an injured witness who also happens to be a
child.
18. Drawing upon the wisdom of the seminal judgment of the Hon'ble
Supreme Court in Vadivelu Theva v State of Madras2, we note that
referring to section 134 of the Evidence Act the Hon'ble Supreme
Court has said that no particular number of witnesses are required
for proof of any fact in any case. Furthermore, it is well accepted
that evidence has to be weighed, not counted. Even sole eye-
witness testimony may be pressed into service to convict a person,
provided such testimony is found to be entirely reliable.
19. In Vadivelu Theva (supra), while explaining that oral testimony
may broadly be classified into three categories, i.e.: wholly
AIR (1957) SC 614; para 11
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reliable, wholly unreliable and neither wholly reliable nor wholly
unreliable, the Hon'ble Supreme Court has held, in substance, that
where the testimony of even a single eye-witness is found to be
wholly reliable, there is no reason to refuse to act upon such
testimony to convict a person, since the court is concerned, not
with the quantity but with the quality of evidence, for proving or
disproving a fact.
20. Coming next to additional weightage attached to an injured eye-
witness, we need only refer to the celebrated decision of the
Hon'ble Supreme Court in Abdul Sayeed vs State 3 to paraphrase
that where a witness to the occurrence has himself been injured in
the incident, the testimony of such witness is generally considered
to be very reliable inter-alia since it comes with the in-built
guarantee that such witness was present at the crime scene, and, in
the very nature of things, it is unlikely that an injured eye-witness
would spare his actual assailant to falsely implicate someone else.
Special evidentiary status is therefore accorded to the testimony of
an injured eye-witness and it has been held that such witness
should be relied upon unless there are strong grounds for rejection
of his evidence based on major contradictions or discrepancies in
it.
21. More specifically, the circumstance of an injured child witness was
considered by a Co-ordinate Bench of this court in Rakesh Kumar
(2010) 10 SCC 259; paras 28 and 30
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vs. State 4, to hold that section 118 of the Evidence Act does not
prescribe any minimum or maximum age to test the competence of
a witness, and makes all persons eligible to testify, unless the court
finds that a person is prevented from understanding the questions
put to him or from giving rational answers by reason of being too
young or too old, diseased, whether in mind or body. In this case,
the Co-ordinate Bench of our court also considered the cautionary
note given by the Hon'ble Supreme Court in Panshi vs. State of
U.P 5., to observe that it is not the law that the testimony of a child
witness is to be rejected even if it is found reliable; though, the
evidence of a child witness is required to be evaluated more
carefully and with greater circumspection since a child is
susceptible to being swayed by what others tell him and may be
easy prey to tutoring. The evidence of a child witness must find
'adequate corroboration' before it is relied upon. Furthermore,
relying upon another decision of the Hon'ble Supreme Court in
State of U.P. vs. Krishna Master6, the Co-ordinate Bench extracted
the following portion of the said verdict of the Hon'ble Supreme
Court, which we think is extremely pertinent :
"36. ...There is no principle of law known to this Court that it is
inconceivable that a child of tender age would not be able to
recapitulate facts in his memory witnessed by him long ago. This
witness has claimed on oath before the Court that he had seen five
members of his family being ruthlessly killed by the respondents by
2014 Online Del 3387; para 16 and 19
(1998) 7 SCC 177; para 11
(2010) 12 SCC 324
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firing gunshots. When a child of tender age witnesses gruesome
murder of his father, mother, brothers, etc. he is not likely to forget
the incident for his whole life and would certainly recapitulate facts
in his memory when asked about the same at any point of time,
notwithstanding the gap of about ten years between the incident and
recording of his evidence."
(emphasis supplied)
22. We are in respectful agreement with the principle of law laid down
by the Hon'ble Supreme Court as also followed by the earlier Co-
ordinate Bench of this court, that the only precaution courts must
take, is to ensure that a child witness is free from tutoring or
influence and his testimony finds adequate corroboration, even
more so where a child has not only seen the crime, but was also a
victim of the crime himself.
23. Assessing the position of PW-2, the son of the deceased : his hands
and mouth were taped by the assailants, whereby he suffered
unlawful physical restraint; he also suffered injury to his mind,
namely the trauma of helplessly seeing his father being trashed by
the assailants. Section 44 of the IPC says that injury denotes "...
any harm whatever illegally caused to any person in mind, in body,
reputation or property." PW-2 is therefore most certainly a child
eye-witness, who has suffered injury as defined in section 44.
Furthermore, in our assessment, the eye-witness testimony of PW-
2 has not been discredited or controverted by any other evidence
brought on record; nor is there anything to evidence that PW-2 was
under any unlawful influence or that he had been tutored in any
manner. The other circumstances surrounding the offence, such as
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the testimony of PW-3, also affords adequate corroboration of what
PW-2 has narrated. Accordingly, we consider PW-2's testimony to
be credible, trustworthy and deserving of the extra weightage that
law accords to eyewitness testimony of an injured witness.
On Section 302 IPC
24. An aspect that has been concerning us in this case, is whether the
fact that the assailants caused to the victim as many as 23
documented injuries, which though opined to be cumulatively
sufficient to cause his death, were not individually such as would
lead to that result, would afford to the assailants or any of them, a
defence to the charge of murder under section 302 IPC. We assess
this in the light of the decision of the Hon'ble Supreme Court in
Anda vs. State of Rajasthan7, where the Hon'ble Supreme Court
was dealing with a similar situation, where several accused persons
beat-up the victim with sticks and caused multiple injuries,
including 16 lacerated wounds on the arms, legs, forehead and
chest. In that case, the Medical Officer who conducted the autopsy
opined, that the cause of death was 'shock and syncope due to
multiple injuries' and that the injuries collectively were sufficient
to cause death in the ordinary course of nature; but individually
none of them was so sufficient. In this backdrop, the question that
the Hon'ble Supreme Court addressed was if, in a case where no
significant injury has been inflicted to a vital part of the body and
the weapons used are ordinary lathis and the accused persons
AIR 1966 SC 148
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cannot be said to have had the intention of causing death, whether
the offence would amount to 'murder' or merely 'culpable
homicide not amounting to murder'. This question was answered in
Anda (supra) as follows :
"15.... The injuries were not on a vital part of the body and no weapon
was used which can be described as specially dangerous. Only lathis
were used. It cannot, therefore, be said safely that there was an
intention to cause the death of Bherun within the first clause of Section
300. At the same time, it is obvious that his hands and legs were
smashed and numerous bruises and lacerated wounds were caused.
The number of injuries shows that everyone joined in beating him. It
is also quite clear that the assailants aimed at breaking his arms and
legs. Looking at the injuries caused to Bherun in furtherance of the
common intention of all it is clear that the injuries intended to be
caused were sufficient to cause his death in the ordinary course of
nature even if it cannot be said that his death was intended. This is
sufficient to bring the case within 3rdly of Section 300."
(emphasis supplied)
Furthermore, in State of Andhra Pradesh vs. Rayavarapu Punnayya &
Anr.8 the Hon'ble Supreme Court observed that:
"39. The ratio of Anda v. State of Rajasthan applies in full force
to the facts of the present case. Here, a direct causal connection
between the act of the accused and the death was established.
The injuries were the direct cause of the death. No secondary
factor such as gangrene, tetanus etc., supervened. There was
no doubt whatever that the beating was premeditated and
calculated. Just as in Anda case, here also, the aim of the
assailants was to smash the arms and legs of the deceased, and
they succeeded in that design, causing no less than 19 injuries,
including fractures of most of the bones of the legs and the arms
While in Anda case, the sticks used by the assailants were not
specially dangerous, in the instant case they were unusually
(1976) 4 SCC 382; para 39
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heavy, lethal weapons. All these acts of the accused were
preplanned and intentional, which, considered objectively in
the light of the medical evidence, were sufficient in the
ordinary course of nature to cause death. The mere fact that
the beating was designedly confined by the assailants to the
legs and arms, or that none of the multiple injuries inflicted
was individually sufficient in the ordinary course of nature to
cause death, will not exclude the application of clause thirdly
of Section 300. The expression "bodily injury" in clause thirdly
includes also its plural, so that the clause would cover a case
where all the injuries intentionally caused by the accused are
cumulatively sufficient to cause the death in the ordinary course
of nature, even if none of those injuries individually measures
upto such sufficiency. The sufficiency spoken of in this clause,
as already noticed, is the high probability of death in the
ordinary course of nature, and if such sufficiency exists and
death is caused and the injury causing it is intentional, the case
would fall under clause thirdly of Section 300. All the conditions
which are a prerequisite for the applicability of this clause have
been established and the offence committed by the accused, in
the instant case was "murder"."
(emphasis in bold, supplied;
underscoring in original)
25. The principle is therefore clear : if the injuries were the direct
cause of death; no secondary factor such as gangrene, tetanus etc.
had supervened; and there was no doubt that the beating was pre-
meditated and calculated, the death would amount to 'murder'
within the meaning of clause thirdly in section 300 IPC. The
Hon'ble Supreme Court further pointed-out that the expression
'bodily injury' appearing in the clause thirdly of section 300 IPC
includes the plural, namely, the clause covers a case where all
injuries intentionally caused by the accused are cumulatively
sufficient to cause death in the ordinary course of nature, even if
individually none of those injuries measures up to such sufficiency.
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26. We would be remiss if we did not recount the celebrated decision
of the Hon'ble Supreme Court in Virsa Singh vs. State of Punjab9,
where the Hon'ble Supreme Court parsed-out the essential
ingredients required to be satisfied to bring home a charge of
murder under the clause thirdly of section 300 IPC in the following
words :
"14. To put it shortly, the prosecution must prove the following facts
before it can bring a case under Section 300 "thirdly".
15. First, it must establish, quite objectively, that a bodily injury is
present.
16. Secondly, the nature of the injury must be proved; These are purely
objective investigations.
17. Thirdly, it must be proved that there was an intention to inflict that
particular bodily injury, that is to say, that it was not accidental or
unintentional, or that some other kind of injury was intended.
18. Once these three elements are proved to be present, the enquiry
proceeds further and.
19. Fourthly, it must be proved that the injury of the type just described
made up of the three elements set out above is sufficient to cause death
in the ordinary course of nature. This part of the enquiry is purely
objective and inferential and has nothing to do with the intention of
the offender.
(emphasis supplied)
27. From the above we note, in particular, that what is required to be
proved is that there was an intention to inflict a particular bodily
injury, that is to say, that injury was not accidental or unintentional
or that some other kind of injury was intended; and further, that the
AIR (1958) SC 465
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type of injury so described is sufficient to cause death in the
ordinary course of nature, it being understood that the inquiry as to
the intention to inflict a particular bodily injury, is a purely
objective and inferential inquiry and has nothing to do with the
intention of the offender; noting yet again, that the phrase bodily
injury appearing in clause thirdly of section 300 includes bodily
injuries.
28. We may also recapitulate the essential position as laid down in
Virsa Singh (supra), that in deciding whether an offence falls
within clause thirdly of section 300 IPC, the question is not
whether the assailant intended to inflict a serious injury or a trivial
one, but whether he intended to inflict the injury that is proved to
be present. If an injury is present, and if is proved that the
assailant inflicted it, the inevitable inference is that he intended
to inflict that injury. To quote Virsa Singh (supra) again:
"23. ... But if there is nothing beyond the injury and the fact that the
appellant inflicted it, the only possible inference is that he intended to
inflict it. Whether he knew of its seriousness, or intended serious
consequences, is neither here nor there. The question, so far as the
intention is concerned, is not whether he intended to kill, or to inflict
an injury of a particular degree of seriousness, but whether he
intended to inflict the injury in question; and once the existence of the
injury is proved the intention to cause it will be presumed unless the
evidence or the circumstances warrant an opposite conclusion...."
(emphasis supplied)
29. Applying the aforesaid position of law as expatiated by the
Hon'ble Supreme Court, based on what is evident from the record,
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we are clear in our mind, that the very presence of the three
appellants at the residence of the deceased, who they did not know,
nor had any prior dealings or transactions with, on the morning of
the fateful day coupled with the evidence that all three of them
inflicted upon the victim as many as 23 injuries while making upon
him certain demands, is proof positive that the attack on the victim
was pre-meditated and calculated. It is further clear from the
evidence on record that the appellants had intended to inflict those
very bodily injuries by indiscriminately beating-up the victim,
which injuries were neither accidental nor unintentional; nor did
the appellants intend to inflict injuries other than those inflicted.
On a purely objective and inferential basis, it is also clear that even
though none of the injuries so inflicted were individually sufficient
to cause death in the ordinary course of nature, medical opinion
says that the injuries were cumulatively sufficient to cause the
victim's death. In our view, therefore, the acts of the appellants
meet the test of cumulative sufficiency as inter-alia explained in
Anda (supra) and Rayavarapu Punnayya (supra), for being the
direct cause of the victim's death. The acts of the appellants
therefore also meet the ingredients of clause thirdly of section 300
IPC as explained in Virsa Singh (supra); and regardless of their
professed intention, the acts of the appellants answer to the
definition of 'murder' under clause thirdly of section 300 IPC.
On Conspiracy
30. The essence of the law of criminal conspiracy engrafted in section
120-B IPC may be summarised, from the decision of the Hon'ble
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Supreme Court in State vs Nalini 10 , to say that the offence of
conspiracy is not made-out if accused persons merely entertain a
wish, howsoever horrendous, to commit an offence; and it is
necessary that there be an agreement to carry-out the object of the
intention which is an offence. To be sure, subsequent conduct, that
is conduct after the object of the conspiracy has been achieved
does not make an accused part of a conspiracy. Furthermore, the
existence of the conspiracy, as also its object, have to be inferred
from the circumstances and the conduct of the accused. The
following paragraphs of Nalini (supra) are particularly relevant :
"583. Some of the broad principles governing the law of conspiracy
may be summarized though, as the name implies, a summary cannot be
exhaustive of the principles.
7. A charge of conspiracy may prejudice the accused because it
forces them into a joint trial and the court may consider the
entire mass of evidence against every accused. Prosecution
has to produce evidence not only to show that each of the
accused has knowledge of the object of conspiracy but also of
the agreement.
8. ... Offence of criminal conspiracy is complete even though
there is no agreement as to the means by which the purpose is
to be accomplished. It is the unlawful agreement which is the
gravamen of the crime of conspiracy. The unlawful
agreement which amounts to a conspiracy need not be formal
or express, but may be inherent in and inferred from the
circumstances, especially declarations, acts and conduct of
the conspirators.
9. It has been said that a criminal conspiracy is a partnership
in crime, and that there is in each conspiracy a joint or mutual
agency for the prosecution of a common plan. Thus, if two or
more persons enter into a conspiracy, any act done by any of
them pursuant to the agreement is, in contemplation of law, the
(1999) 5 SCC 253
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act of each of them and they are jointly responsible therefor... .
And this joint responsibility extends not only to what is done by
any of the conspirators pursuant to the original agreement but
also to collateral acts incidental to and growing out of the
original purpose. ..."
(emphasis supplied)
31. Insofar as appellants Deepak, Parveen and Dilip are concerned,
applying the ingredients of criminal conspiracy as explained in
Nalini (supra), in our view, there is no doubt that all three visited
the victim's residence together, though they neither knew nor had
any previous dealings or transactions with him, in pursuance of an
unlawful agreement. Although it is not clear from the evidence on
record as to whether this unlawful agreement was to extort from
the victim money or documents or something else, what is clear is
that in order to carry-out the object of their unlawful agreement,
the three appellants indulged in brutal physical attack on the
victim. The circumstances as proved on record, and their acts and
conduct during the commission of the crime, make it clear that the
three assailants were acting pursuant to their agreement to carry
forward their unlawful intention, which fulfil the requisites of the
offence of criminal conspiracy under section 120-B IPC.
Accordingly, the three appellants must be held to be jointly
responsible for their individual acts as also for each other's acts.
Conclusions
32. In light of the above discussion, we evaluate the position of
evidence and law from the standpoint of each individual appellant.
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Evidence & Circumstances against Reena Yadav (A1)
33. Ocular Evidence : Reena Yadav has not been identified as being
present at the crime scene at the time of the incident by either of
the eye-witnesses, PW-2 or PW-3. The complainant PW-1, who is
the brother of the deceased, has named her in the rukka and her
name also therefore appears in the F.I.R but only to say that Reena
had a running matrimonial discord with her deceased husband; that
she used to demand her share of certain properties stated to have
been sold by the husband; and in the context of their matrimonial
discord, she had threatened even to kill her husband. While the
circumstances alleged against Reena, even if taken to be ex-facie
true, only show that Reena may have had motive to harm her
husband; however, as per settled law, motive alone does not imply
guilt; and a finding of conviction can certainly not be returned
merely because an accused had motive to commit a crime.
34. Electronic evidence: Reena is alleged to have been constantly in
touch with the appellant Parveen, using a cellphone number
9654387682, which admittedly belongs to a third person called
Santosh Tamang. Santosh Tamang was not examined at any stage;
and as a result, the use of the cellphone number standing in
Santosh Tamang's name, by Reena remains a matter of
speculation. Besides, even assuming Reena was using Santosh
Tamang's number, there is only one solitary call made by Reena to
Parveen using this number, which call is also two days after the
date of the offence, namely on 20.09.2009. Needless to add that the
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contents of the conversion remain unknown. Again therefore, to
infer conspiracy between Reena and Parveen to commit the offence
based on a solitary cell-phone call after the date of the offence,
would be flawed.
35. Recovery of knife : A knife stated to have been one of the
weapons of offence, is alleged to have been recovered at Reena's
instance on 24.09.2009 from a premises in Jangpura, where she
resided with her sister Meena Yadav. The MLC and the post-
mortem report of the deceased show that he suffered 23 wounds, of
which one was a stab wound; and that all these wounds were
cumulatively sufficient in the ordinary course to cause death.
However, even accepting that the knife was recovered at Reena's
instance, the forensic report shows that no blood was found on the
knife; the knife was never put to the post-mortem doctor for his
opinion as to whether it could have been one of the weapons of
offence; and no co-relation has thereby been established between
the knife and the wounds inflicted upon the deceased. Apart from
that, it is the admitted position that the keys to the premises at
Jangpura, from where the knife is alleged to have been recovered,
were available to the Investigating Officer from 24.09.2009 upto
02.10.2009, whether deposited with malkhana in-charge or
otherwise, and therefore the recovery of the knife from that
premises is not clear of doubt. As a result, both the recovery of the
knife, as also whether the knife was a weapon of offence, remain in
doubt.
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36. Arrest together with co-conspirator : Reena is stated to have
been arrested on 23.09.2009 from a premises in Jangpura, which
was rented by her sister Meena; and where the latter used to reside
with her paramour Parveen. This is cited as an incriminating
circumstance to show that the three were in conspiracy to commit
the offence. However, it has also come on record that by reason of
matrimonial discord, Reena had been staying away from her
husband for 10-15 days; and that Reena had been residing with her
sister Meena. In these circumstances, for Reena to have been found
at Meena's residence is hardly an incriminating circumstance.
37. Conduct : Reena's conduct after the date of the incident is stated
to be suspect, since she did not attend the funeral and other last
rites of her deceased husband. Apart from the fact that Reena
claims to have been unwell at that time, being a patient of epilepsy,
it has come on record in the police complaints arising from her
matrimonial discord, that Reena had named not only her husband
but also his family members in such complaints. Therefore, it is not
unnatural for Reena to have stayed away even from the last rites of
her husband to avoid acrimony with the family members. This
again, cannot be termed as an incriminating circumstance,
sufficient to infer guilt.
38. In view of the above, in our opinion, while one may suspect that
Reena Yadav had motive to harm her husband, such motive alone
is not sufficient to convict her of having murdered him. It may be
mentioned, that there is nothing on record to show that Reena
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Yadav benefitted, whether monetarily or otherwise, from the
demise of her husband. Accordingly, we reverse the finding of
conviction returned by the learned trial court insofar as Reena
Yadav is concerned; and acquit Reena Yadav of all charges, giving
her the benefit of doubt. We accordingly allow Crl. A. No.
1570/2013; and dismiss the State appeal bearing Crl A. No.
88/2014 challenging Reena's acquittal of the charge under section
25 Arms Act.
Evidence and Circumstances against Parveen alias Rajesh (A2)
39. Ocular Evidence : Parveen has been identified by both eye-
witnesses PW-2 and PW-3, as having been present and having
been part of the attack on the deceased on 18.09.2009. He has been
identified inter-alia as the man with the burn mark on his hand and
neck. As a matter of fact, Parveen indeed has such a mark on his
hand and neck. PW-2, the son of the deceased, specifically says in
his deposition that Parveen was the one asking his father for
money. Even before Parveen's arrest, the fact that one of the
persons involved in the attack had a burn mark on his hand and
neck is recorded in the rukka. There is nothing to say that PW-2 or
PW-3 knew Parveen prior to the date of the incident; or that they
had had any interaction with Parveen earlier-on; or that there is any
reason for them to falsely implicate him. The ocular testimony of
PW-2 and PW-3 have remained consistent and unchallenged in
cross-examination. Although Parveen claims that he was shown to
the witnesses at the police station and also at the premises where
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the crime was committed, which is why he refused TIP and which
is why his dock identification should be disregarded, this does not
answer why his unique description of having burn marks, finds
mention in the rukka. We are also persuaded to think that PW-2,
who is an injured witness, would not uselessly identify Parveen,
thereby letting-go of some other person who was actually involved
in the offence. Accordingly, we do not find any merit in Parveen's
contention and we reject the same.
40. Electronic Evidence : Relying upon the Cell-ID Chart relating to
Parveen's cellphone number 9717305439, it is shown that his
location at 08:08:18 on 18.09.2009 was at M.B. Road, Khanpur,
which is held against him as an incriminating circumstance.
However, no certificate as required under section 65B of the
Evidence Act in relation to such Cell-ID Chart was filed.
Accordingly, the electronic evidence by way of the Cell-ID Chart
has not been proved in accordance with law. We accordingly do
not accept Parveen's purported location at the relevant time as an
incriminating circumstance.
41. Recovery: A pair of blood-stained shoes, allegedly belonging to
Parveen, are stated to have been recovered at his instance on
02.10.2009 from the premises at Jangpura where he used to reside
with Meena. Although the blood on the shoes was found to be
'human' in origin, its blood grouping remains inconclusive.
Besides, it has come on record that Parveen was arrested from the
same premises on 23.09.2009; that from 24.09.2009 till 02.10.2009
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the Investigating Officer had possession of the keys to the said
premises; and therefore, for the shoes to have been recovered as
late as on 02.10.2009, without any justification for the delay,
strains credulity. The alleged recovery of the shoes at Parveen's
instance, accordingly does not inspire confidence and we reject it
as an incriminating circumstance.
42. Arrest: Parveen is stated to have been arrested on 23.09.2009 from
the premises where he used to reside with Meena. Reena and
Meena are also stated to have been arrested from the same
premises on the same day, which circumstance is cited as evidence
to prove that Parveen was one of the co-conspirators. On the other
hand, Parveen says in his statement under section 313 CrPC, that
he was arrested on 19.09.2009 from off the road when he was on
the way to his work. Regardless of the contentions and counter-
contentions as regards his date and place of arrest, suffice it to say
that since it is the prosecution's own case that Parveen was in a
relationship with Meena; that they used to reside together at the
Jangpura premises that Meena had rented; and that her sister Reena
was also present at that place, Parveen's presence at that premises
is hardly surprising. We therefore think that this circumstance does
not justify the inference of conspiracy to commit murder.
43. Disregarding all other evidence and incriminating circumstances
cited against Parveen, we find the ocular testimony of PW-2 and
PW-3, whereby both eye-witnesses have identified Parveen by his
distinguishing physical feature, namely the burn mark on his hand
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and neck, to be sufficient to find him guilty of the offence. We
observe that PW-2 is in fact an 'injured witness', inasmuch as his
mouth and hands were taped by the assailants when they were
assaulting his father. Section 44 IPC defines 'injury' as " ... any
harm whatever illegally caused to any person, in body, mind,
reputation or property."; and accordingly, taping-up the mouth and
hands of PW-2 thereby causing him trauma both in body and mind,
while making him witness brutal attack on his father by several
men, is certainly injury to PW-2. As an injured witness therefore
PW-2 warrants greater credibility, as inter-alia laid down by
Hon'ble Supreme Court in Abdul Sayeed (supra) and additionally
also in Rakesh Kumar (supra) We repeat, neither PW-2 nor PW-3
are stated to have known, or to have been familiar with, or to have
had any prior dealings with Parveen; nor is there anything on
record to suspect that Parveen was falsely implicated by them.
44. We accordingly uphold Parveen alias Rajesh's conviction under
section 302 IPC read with section 120-B IPC. We also uphold the
sentence of life imprisonment alongwith fine of Rs.20,000/-, with a
default sentence of one year simple imprisonment, awarded to him
by the learned trial court. We accordingly dismiss Crl. A. No.
1485/2013 filed by Rajesh alias Parveen.
Evidence and Circumstances against Deepak alias Deepu (A3):
45. Ocular Evidence: Deepak alias Deepu is identified by PW-2, the
injured eye-witness and son of the deceased, as the person who was
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wielding the pistol. Though, no pistol was recovered at Deepak's
instance; no gunshot injury was found on the deceased; and the
recovery of the pistol at Meena's instance was disregarded by the
learned trial court, in our view, the ocular testimony of the injured
eye-witness PW-2 is sufficient to place Deepak at the crime scene.
The contention that PW-2 did not ascribe specific individualised
roles to the four assailants and that no blood was found on the
pistol and the pistol was not shown to the post-mortem doctor for
his opinion as to whether the pistol could have been the weapon of
offence, does not impress us, for the reason that firstly, that an 11-
12 year old boy who was witness to brutal attack upon his father by
four assailants, when his mouth and hands were also taped-up by
them, must evidently have been stunned and terrified out of his
wits at that time. To disregard the testimony of this young boy only
because he does not ascribe specific individualised roles to the
assailants, in what must have been a situation of brutal violence,
trauma, pandemonium and melee, is not what the law would expect
of the witness. Secondly, when his father was being
indiscriminately assaulted by three persons simultaneously, it can
hardly be expected from anyone, much less from this young boy
that he ought to have specifically noticed and remembered as to the
manner in which each of the assailants assaulted his father. Thirdly,
since no gunshot wound was found on the deceased, we do not
fault the prosecutor for not having put the pistol to the post-mortem
doctor for his opinion as to whether it could have been the weapon
of offence. In any case, whether Deepak was wielding the gun is
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irrelevant to our consideration, once the injured eye-witness
identifies Deepak as one of the assailants who was present and had
assaulted his father; and this testimony remains consistent and
unchallenged in cross-examination.
46. We are accordingly persuaded to accept PW-2's version that
Deepak was indeed present and was one of the persons who
assaulted his father.
47. Forensic Evidence: According to the prosecution, the fingerprints
of Deepak's right middle finger matched one of the chance prints
lifted from the crime scene. Although this is being challenged on
behalf of Deepak by pointing-out that there is no evidence to show
that Deepak's specimen fingerprints were at all taken; that the
chain of custody of the so-called specimen fingerprints as well as
the chance prints, as also the method used to determine the match
are all doubtful, we find that these aspects were not put to the
concerned witnesses with any specificity or detail in cross-
examination, except in the passing when in his cross-examination
PW-4 denies that the fingerprints were planted. What we do have
on record is the report of a fingerprint expert to say that Deepak's
fingerprints were found at the crime scene. We accept this report, if
only as an additional piece of incriminating evidence against
Deepak.
48. Electronic Evidence: The Cell-ID Chart in relation to cellphone
No. 9654050805, which is stated to have been used by Deepak and
which belongs to his sister Deepika Rawat, is cited to show
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Deepak's presence at M.B. Road Khanpur at 08.08.18 on
18.09.2009. This evidence is challenged on the basis that Deepika
Rawat was never examined to show if her cellphone number was in
Deepak's use; that no certificate under section 65B of the Evidence
Act in support of the Cell-ID Chart was filed; and further that this
circumstance was not put to Deepak while recording his statement
under section 313 CrPC. In view of the fallacies pointed-out, we
chose not to proceed on the basis of Cell-ID Chart cited against
Deepak. We reiterate however, that Deepak's presence at the crime
scene and the circumstance that he assaulted the deceased is
sufficiently proved by the ocular testimony of PW-2, the injured
eye-witness and son of the deceased, which testimony remains
consistent and unchallenged.
49. Refusal of Test Identification Parade: While the prosecution
cites Deepak's refusal to undergo TIP on 25.09.2009 as an
incriminating circumstance, Deepak explains his refusal saying that
he had been shown to many persons in the police station; that his
photograph was taken by the police, which is indeed found on the
judicial record and in his dossier; and also that he was taken to the
crime scene where several persons, including the eye-witnesses,
saw him even before the date of the TIP. Yet again, we do not
think it necessary to decide Deepak's guilt or innocence on the
basis of his refusal to undergo TIP. We accordingly ignore this
circumstance.
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50. Lack of Motive: Additionally, in his defence, it has been argued
that Deepak had no motive to harm the deceased; and that no
money was found on him; and that in fact, his residence was not
even searched. While that may be true, there is also no reason why
Deepak should at all have been present at the residence of the
deceased on the fateful day. Deepak does not cite any prior
familiarity or dealings with the deceased nor is there any other
reason why Deepak should have been present at the crime scene on
that day. Moreover, when un-impeached, credible ocular evidence
is available against an accused, the lack of motive becomes
irrelevant.
51. For the reasons as discussed above, in relation to Parveen alias
Rajesh, we also hold Deepak alias Deepu guilty of the offence of
murder under section 302 IPC read with section 120-B IPC.
52. We accordingly uphold the conviction of Deepak alias Deepu
under section 302 IPC read with section 120-B IPC. We also
uphold the sentence of life imprisonment alongwith fine of
Rs.20,000/-, with a default sentence of one-year simple
imprisonment, as awarded by the learned trial court. We
accordingly dismiss Crl. A. No. 811/2013 filed by Deepak alias
Deepu.
Evidence and Circumstances against Dilip alias Karan (A-4)
53. Ocular Evidence: Dilip is identified by injured eye-witness PW-2,
who further says in his deposition that Dilip was the one who taped
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his mouth and hands. The defence contends that though some tape
was found at the crime scene but no fingerprints were lifted from
the tape; and neither PW-2 nor PW-3 gave any description that
would identify Dilip as being present at the crime scene at the time
of the offence.
54. In our view, PW-2's deposition that Dilip was the one who taped
him up would be conclusive of his identity and his presence at the
spot, if only for the reason that PW-2 would have seen Dilip at
very close quarters when Dilip taped PW-2's mouth and hands.
The testimony of PW-2 and PW-3 in relation to Dilip remains
consistent and has withstood cross-examination. We accordingly
accept the ocular testimony against Dilip and are satisfied that
Dilip's presence at the crime scene and his involvement in the
brutal attack on the deceased, stands proved beyond reasonable
doubt.
55. Refusal to undergo TIP: Although the prosecution cites Dilip's
refusal to undergo TIP as an incriminating circumstance, Dilip
explains his refusal on the basis that he had been shown to many
people at the police station; and that he was also taken to the crime
scene on 23.09.2009, when several people including the eye-
witnesses were present there. In view of the explanation, we do not
consider Dilip's refusal to undergo TIP as an incriminating
circumstance.
56. Conspiracy: Although the prosecution alleges that Dilip was one
of the co-conspirators, no tangible evidence such as CDRs or other
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material has been brought on record to prove his interaction with
the others. In his statement recorded under section 313 CrPC, Dilip
says that he did not even know Parveen and met him for the first
time in prison. Finding insufficient electronic evidence and
material, in our view however, Dilip's involvement in the
conspiracy is borne-out by the fact of his presence at the crime
scene on the date of the offence as proved by the ocular testimony
of PW-2 and PW-3.
57. Arrest: Dilip's alleged arrest alongwith Deepak at the India Gate
Boat Club is also cited as an incriminating circumstance. However
in his statement under section 313 CrPC, Dilip disputes this to say
that he was picked from his place of work at Khanna Tent House in
Paharganj. Again, the lone circumstance of Dilip's arrest alongwith
Deepak, in our view, is not evidence of conspiracy and we
disregard this as an incriminating circumstance.
58. Lack of Motive: Additionally, in his defence, it has been argued
that Dilip had no motive to harm the deceased; that no money was
found from him; and in fact his residence was not even searched.
While that may be true, as for Deepak, so also for Dilip, there is no
reason why he should have been present at the residence of the
deceased on the fateful day. Dilip does not claim any prior
familiarity or dealings with the deceased; nor is there any other
reason why Dilip should have been present at the crime scene on
that day.
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59. We accordingly uphold the conviction of Dilip alias Karan under
section 302 IPC read with section 120-B IPC; as also the sentence
of life imprisonment alongwith fine of Rs.20,000/-, with a default
sentence of one year simple imprisonment, awarded to Dilip by the
learned trial court. We accordingly dismiss the Crl. A. No.
1501/2013 filed by Dilip alias Karan.
Evidence and Circumstances against Meena Gupta
60. Meena Gupta has been acquitted of all charges by the learned trial
court and we would assess the appeal filed against such acquittal
by the State on the following criteria :
61. Meena is alleged to have been a co-conspirator in the murder based
inter-alia on the circumstance that she was in constant touch with
the co-accused persons through the cell-phone number
9891681844, which though belonging to one Zahid, is alleged to
have been used by Meena. This cell phone number is however not
shown to have been recovered from Meena. Moreover, Zahid was
never examined and accordingly, even the fundamental premise
that the cell-phone number standing in Zahid's name was being
used by Meena, has not been established, for which reason the
learned trial court has discarded this piece of evidence. Even if it
were to be accepted that Meena was using Zahid's phone to speak
to the other alleged co-conspirators, that alone would not be
sufficient to infer conspiracy as per the settled principles of law
that even if phone calls between certain numbers are established,
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conspiracy cannot be inferred without knowing the contents of
such phone calls.
62. Accordingly, we agree with the learned trial court that the mere
allegation, purportedly founded on CDRs, that Meena was in
constant touch with the other co-conspirators through Zahid's cell-
phone number, is not a circumstance to bring home the offence of
conspiracy as far as Meena is concerned.
63. Recovery of Pistol : The alleged recovery of the pistol at Meena's
instance, which also the learned trial court has disregarded, is again
suspect since the premises from which the pistol is alleged to have
been recovered was constructively in the possession of the
Investigating Officer from 24.09.2009 to 02.10.2009 and therefore,
the recovery of the pistol at her instance on does not inspire
confidence. Besides, there is nothing to establish that the pistol was
a weapon of offence since no gunshot wound was found on the
deceased. Perhaps for this reason, the pistol was not even put to the
post-mortem doctor for his opinion as to whether it could have
been a weapon of offence, even though some blood is alleged to
have been found on the pistol.
64. Arrest : Meena is claimed to be one of the co-conspirators for the
reason that she was arrested along with her sister Reena and her
paramour Parveen from Meena's rented apartment in Jangpura.
Since the three were found together, the prosecution says they were
in conspiracy to commit the murder. Even accepting that all three
were arrested together, which both Meena and Reena dispute
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inasmuch as they say Parveen was not present with them; just
because Meena and Reena were found together is hardly an
incriminating circumstance since they are real sisters and Reena
said that she was residing with Meena, away from her matrimonial
home, by reason of the discord with her husband. Accordingly, we
do not consider this circumstance as incriminating of Meena.
65. Ocular testimony: No eye-witness testimony is available nor have
the principal prosecution witnesses, namely PW-1, PW-2 and PW-
3, at all mentioned Meena in any context in relation to the offence.
66. In view of the above, we uphold Meena's acquittal by the learned
trial court; and dismiss the State appeal bearing Crl. A. No.
88/2014 challenging her acquittal.
67. A very important factor which requires some discussion, is that in
the present case, while the alleged motive for harming the deceased
may have vested in his wife Reena, by reason of her marital
discord with the husband; the evidence on record is woefully
inadequate to impute to Reena anything more than mere motive.
68. Accordingly, it turns-out that there is un-impeached ocular
evidence against the assailants Parveen, Deepak and Dilip,
sufficient to hold them guilty, there seems to be no apparent motive
for them to have harmed the deceased. The three assailants are
therefore entitled to urge as to why they would murder a person
who was unknown to them; and who had had no dealings with
them, without having been impelled by monetary or other gain. To
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put it differently, while Reena may have had motive to harm her
husband; the three assailants Parveen, Deepak and Dilip had no
reason to do so.
69. To answer this, we observe that the State has argued that the three
assailants had, at Reena's urging and instance, been sent to demand
from the deceased Reena's share in the alleged sale proceeds of
properties that the deceased had sold. To be sure, PW-2 also says
that the three assailants were demanding money from his father as
they were beating him up. The State says that to this end, the
assailants also ransacked the premises and since money was
alleged to have been hidden in the false ceiling in the bathroom,
some fingerprints were found on that false ceiling. However,
regrettably, no further evidence has been adduced in regard to these
fingerprints. The alleged fingerprints lifted from the false ceiling
have not been attributed to any of the appellants.
70. To satisfy our conscience however, we proceed to evaluate another
scenario, which is that the three assailants came to the house of the
deceased only to extort from him the money, let us say at Reena's
instance. However, we remind ourselves that there is no evidence
on record to impute that Reena tasked the three assailants to extort
money from her husband. Going by PW-2's statement it is possible
that the initial intention of the three assailants was only to get
money from the deceased, to which end they were beating him up,
with no intention to kill him. However, the three assailants inflicted
upon the deceased 23 wounds, lacerated, incised as well as a stab
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wound (several of which were on the vital portions of the head,
face and neck), which wounds, the post-mortem doctor opines,
were sufficient to cause death in the ordinary course. Therefore, it
can safely be inferred from the number and nature of the wounds
inflicted; and the portions of the body on which wounds were
inflicted, that eventually the assailants' intention morphed into an
intention to kill the victim. It is immaterial that such intention may
have developed or evolved then and there, in the course of
administering beatings to the victim while demanding money. It is
immaterial that the assailants did not initially come with that
intention.
Negligent Investigation & Prosecution
71. We are compelled to note that this case presents an instance of
significantly shoddy investigation as well as prosecution. We note,
in particular, the following aspects:
(i) PW-2 was evidently roughed-up and his mouth and hands
were tied with tape; and yet no MLC of PW-2 was
conducted. We have held that PW-2 was an 'injured witness'
inasmuch as he suffered unlawful restraint by his hands and
mouth being taped-up by the assailants and since he had also
suffered mental trauma in witnessing the brutal attack on his
father. Though we have said that that is sufficient for us to
treat him as an injured witness, if PW-2's MLC had been
conducted, evidence of any physical hurt, bruises or marks
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on his body would also have come on record. We find it
surprising that this was not done.
(ii) Reena and Meena were arraigned as accused on the
allegation that it was at their instance, in particular at
Reena's instance, that the crime was committed. It was the
prosecution case that the two were in conspiracy with the
other co-accused for committing the offence. The charge of
criminal conspiracy was sought to be established on the
basis of telephone conversations that were alleged to have
taken place between Reena and Meena with other co-
accused persons using certain cell-phone numbers. These
cell-phone numbers, on the prosecution's own reckoning,
belonged to Santosh Tamang, Zahid and Deepika Rawat.
However, neither Santosh Tamang nor Zahid nor Deepika
Rawat were investigated or brought in evidence, thereby
leaving a whole void in the chain of circumstances insofar as
the charge of criminal conspiracy was concerned. While
CDRs were cited as evidence that Reena and Meena were in
"constant touch" with the other co-accused, no insight was
sought into the contents of such conversations, whether
directly or inferentially. Although Cell-ID Charts were
placed in evidence, requisite section 65B certificates in
support of such charts were not filed. Nothing conclusive
was brought on record to show the location of the accused
persons based on such charts. It is as if the prosecution
assumed, that courts would accept the charge of criminal
Signature Not Verified
CRL.A. Nos. 811/2013, 1485/2013, 1501/2013, 1570/2013 & 88/2014
Location:
Signing Date:04.02.2022
10:39:32
conspiracy merely on their ipse dixit and on the possible
existence of motive in Reena. We would frown upon this
approach as well.
72. All this, we consider to be serious lapses, both in the investigation
and prosecution of the case. However, we refrain from making any
further observations against the concerned persons in this behalf.
73. The criminal appeals are disposed of in the above terms. Pending
applications, if any, also stand disposed of.
74. Reena, the appellant in Crl. A. No. 1570/2013, be released from
prison forthwith, unless required in some other case.
75. Personal bond furnished by Meena Gupta stands cancelled. Surety
bond is discharged.
76. There shall be no order as to costs.
77. A copy of the judgment be sent to the concerned Jail
Superintendent from compliance.
78. A copy of this judgment be also given to learned counsel for the
parties and be also uploaded on the website of this court
expeditiously.
SIDDHARTH MRIDUL, J
ANUP JAIRAM BHAMBHANI, J
February 4, 2022
Ne/uj/ds
Signature Not Verified
CRL.A. Nos. 811/2013, 1485/2013, 1501/2013, 1570/2013 & 88/2014
Location:
Signing Date:04.02.2022
10:39:32
