IN THE COURT OF SH. SANJAY BANSAL: SPECIAL JUDGE (NDPS) / ASJ / NORTH EAST: KARKARDOOMA COURTS: SHAHDARA: DELHI. Sessions Case No. 44922/2015 CNR No. DLNE01-000434-2014 STATE Versus PAWAN KUMAR S/o Late Sh. Bhudayal R/o Village Sathni, P.S. Iglas, Dist. Aligarh, UP. FIR No. : 343/2013 PS. : New Usmanpur U/s. : 302 [ACT] Chargesheet Filed On : 07.07.2014 Date Of Allocation : 11.08.2014 Judgment Reserved On : 13.09.2018 Judgment Announced On : 19.09.2018 JUDGMENT:
1. Accused [ENTITY] has been sent up for trial on the allegations that on 12.04.2014 at about 3:45 am, at a room on 2 nd floor of the rented accommodation, he had killed his wife Smt. [ENTITY] by slitting her throat and stabbing her. The crime was revealed, allegedly, by the accused himself.
2. Prosecution case is that on 12.04.2014 at 4:25 am, accused made a call to PCR and told that he had killed his wife [ENTITY]. He also told that he did not know the number of his residence and that he had come to Delhi from Aligarh. This information was forwarded to PS New Usmanpur which was recorded vide DD No. 10-A. SI [ENTITY] was informed. He alongwith Ct. [ENTITY] went to H. No. C-44/300, Gali No. 15, [ENTITY], 4 [ENTITY], Usmanpur, Delhi. Accused [ENTITY] was found there on the 2 nd floor alongwith PCR staff. He disclosed that he had made the call from mobile no. 8750988081. He confessed that he had killed his wife with knife. The room was opened and dead body of [ENTITY] was found in semi-naked condition. There were knife injuries marks on the neck, shoulder and back. Accused pointed out to a knife lying there beneath a pillow and told that it was the weapon of offence. Mobile phone of accused was seized. Crime Team was called at the spot. Photographs were taken. The sketch of the knife was prepared. Parcels were prepared. FIR was got registered u/[SECTION] [ACT]. Investigation was assigned to Insp. [ENTITY].
3. Insp. [ENTITY] also reached the spot. Accused [ENTITY] was arrested. Various witnesses including the landlord and his wife were examined. Postmortem on the dead body was got conducted. The IO had also examined the shopkeeper from whom the knife was purchased. PCR call record was obtained. Voice sample of accused was also taken and sent to FSL, Rohini for analysis. Postmortem report was collected. Cause of death was "hemorrhagic shock as a result of antemortem injury to neck, associated blood vessels and abdomen produced by sharp edge weapon". It was also opined that injury No. 1, 5 and 6 were sufficient to cause death individually and collectively in ordinary course of nature. Subsequent opinion about weapon of offence was also obtained and injury no. 1 to 7 were opined to be possible by the said knife. Other exhibits were also sent to FSL. Chargesheet was filed against the accused u/[SECTION] [ACT].
4. After compliance of [SECTION] [ACT], learned MM committed the case to Court of Sessions as offence u/[SECTION] [ACT] was exclusively triable by it.
5. Vide order dated 26.09.2014, my learned Predecessor framed charge for offences u/[SECTION] [ACT] against the accused. Accused pleaded not guilty and claimed trial.
6. In order to prove the charges, the prosecution examined around 33 witnesses. It may be mentioned here that two witnesses were given same serial number of PW-20 inadvertently.
7. [ENTITY]ment of accused u/[SECTION] [ACT] was recorded. As some incriminating material was left out, supplementary statement of accused was further recorded u/[SECTION] [ACT].
8. Accused examined one witness in his defence.
9. Evidence led by the parties may now be noted.
MATERIAL WITNESSES
10. Prosecution examined PW-1 [ENTITY] who is the landlord. It also examined his wife PW-2 Smt. [ENTITY]. It further examined PW-3 [ENTITY], who was the shopkeeper who had sold knife to the accused. It had also examined PW-9 Sh. [ENTITY] and PW-10 Smt. [ENTITY] who were parents of the deceased.
11. PW-1 is [ENTITY]. He is the landlord. He deposed that he is owner of H. No. C-44/300, Gali No. 15, [ENTITY], 4 [ENTITY], Usmanpur, Delhi. There were three floors in the said house i.e. ground floor, 1 st floor and 2nd floor. He deposed that he alongwith his family was residing on 1 st floor. He had rented out ground floor and 2nd floor. He deposed that one room on the 2 nd floor was given on rent to accused [ENTITY] three months prior to the incident. Rate of rent was Rs. 1300/- pm. He deposed that he knew accused [ENTITY] through his father-in-law Sh. [ENTITY]. He identified accused in the court. He deposed that in the tenanted room, accused and his wife were residing. He stated that son of accused was around 5 years old. He stated that relations between deceased and accused were good but there used to be quarrels between them. He stated that both of them had quarreled in a Jagran hosted by father of deceased.
12. Deposing further, he stated that on 11.04.2014, he had put lock upon the main gate and at that time, accused was with his wife in his room. He stated that there was no other person with them. On 12.04.2014 at about 4:00 am, he had left his house for morning walk. He had closed the door from outside. There was central lock system there. He returned at about 7:00/7:15 am and saw that there was large crowd in front of his house. On enquiries, he came to know that wife of accused had been murdered. Police made enquiries from him.
13. In cross-examination, PW-1 was confronted with his previous statement Ex.PW1/DA wherein he had not mentioned that he knew accused through his father-in-law [ENTITY] or that he had given the room on rent to accused on recommendation of [ENTITY]. It was also not mentioned that 1 months before the incident, [ENTITY] had organized a Jagran in which accused and his wife had quarreled or that PW-1 used to go to their house to resolve their disputes. It was also not mentioned in Ex.PW1/DA that on 11.04.2014, he had returned from morning walk at about 7:00/7:15 am. He denied the suggestion that he had given the keys of the main door to every tenant.
14. PW-2 is Smt. [ENTITY]. She is wife of PW-1. She has deposed on the same lines as PW-1. She too states that she had seen accused [ENTITY] with his wife in their room in the night. She deposed that she had opened the door after arrival of the police. The police told her that a call was made to PCR from her house. They went upstairs. She stated that [ENTITY] was standing on the 2nd floor near the jaal as he wanted to escape.
15. In cross-examination, PW-2 was also confronted with her previous statement Ex.PW2/DA. She had not stated therein the time when her husband had locked the door on 11.04.2014. It was also not mentioned that police had told her that they had received phone call from her house or that accused was standing near the jaal on the 2 nd floor. She denied the suggestion that brother-in- law of accused was present in room of the accused on 11.04.2014 in night hours.
16. PW-3 is [ENTITY]. He is having shop by the name of [ENTITY] at Bhajan Pura Market. He deposed that accused was brought to him by IO Insp. [ENTITY]. He told the IO that accused had purchased a knife for domestic use on 10.04.2014 at about 10:30 am. He deposed that he had shown various knives to the accused but accused chose big knife used for cutting coconut/pumpkin. Accused purchased the knife for Rs. 70/-. He also deposed that it was of LORD make. He identified the knife which is Ex. P-4.
17. In cross-examination, he denied that accused did not purchase knife from him. He also stated that CCTV footage was not available as accused had come very early in the morning. He also stated that there was no bill as it was of small amount.
18. PW-9 [ENTITY] is father and PW-10 [ENTITY] is mother of the deceased. Both of them have deposed about ill-treatment meted out to deceased by accused. PW-9 had identified dead body and received the same after postmortem. They have deposed that deceased did not want to go with accused as she had apprehension that accused might kill her.
19. In cross-examination, PW-9 was confronted with his statement recorded by the SDM which is Ex.PW9/D wherein he had not stated various facts. Similarly, PW-10 was also confronted with her previous statement given to the SDM which is Ex.PW9/D (signature of both PW-9 and PW-10 were obtained on Ex.PW9/D by the SDM). The defence tried to show that their evidence was result of improvements.
INVESTIGATION WITNESSES
20. PW-4 [ENTITY] was posted in PCR Control Room on 12.04.2014. He deposed that on that day at about 4:50 am, call was received from mobile no. 8750988081. Caller's name was [ENTITY]. He deposed that caller informed that "maine apni aurat ka murder kar diya hai jiska naam [ENTITY] hai". He also told that he was not knowing complete address as he had come to Delhi from Aligarh. He told incomplete address as " 4 [ENTITY], Som Bazaar, [ENTITY], Gali No. 15". PCR form is Ex.PW4/A. Nothing substantial has come out in cross-examination of PW-4.
21. PW-22 is ASI [ENTITY]. He was on duty in PCR vehicle in the intervening night of 11.04.2014 to 12.04.2014. At about 4:30 am, he received call about murder. He alongwith his staff reached Gali No. 15, [ENTITY]. He deposed that he was searching for the house because the caller had not given house number. He states that he was talking with caller [ENTITY] on the mobile number given in the call. On being guided by [ENTITY], he reached H. No. C-44/300. The caller asked him to come inside. He deposed that he reached there and door was opened by landlady. He reached the 2 nd floor. He met accused [ENTITY] there. He deposed that dead body of a lady was lying on the floor in naked condition. [ENTITY] told PW-22 that he had killed his wife with knife. Other police officials arrived there.
22. In cross-examination, he denied the suggestions of the defence. He denied that he had not gone to the spot as deposed by him.
23. PW-27 is Ct. [ENTITY]. His evidence is similar to that of PW- 22 as he was with him.
24. PW-29 is SI [ENTITY]. He deposed that he was posted on Emergency Duty from 8:00 pm to 8:00 am between intervening night of 11/12.04.2014. On 12.04.2014 at about 04.25 a.m., DD No. 10A regarding killing of his wife [ENTITY] by the caller was assigned to him. He alongwith Ct. [ENTITY] (PW-30) reached at H. No. C-44/300, Gali No. 15, 4 [ENTITY], [ENTITY], Usmanpur. They reached on 2nd floor of the said house. ASI [ENTITY] of PCR met him and produced accused [ENTITY] before him. Accused [ENTITY] disclosed him that he killed his wife and her dead body is lying in the room. They opened the door of the room situated on 2 nd floor and found that dead body of a lady was lying on the floor in semi naked condition. There was cut mark on the neck of the deceased. Accused [ENTITY] disclosed that the knife by which he murdered his wife [ENTITY] is kept below the pillow near the dead body.
25. He deposed that he also found stab injuries on the back and shoulder of the deceased. He recovered the knife at the instance of the accused which was kept under the pillow. There were blood stains on the knife. He prepared sketch of the knife Ex.PW29/A and mentioned its measurement in the sketch. He kept knife in a pulanda which was sealed with the seal of 'SR' and taken into police possession vide seizure memo Ex.PW29/B. He handed over the seal to Ct. [ENTITY] after use.
26. He deposed that accused [ENTITY] produced a mobile phone make MICROMAX stating that he made the call by this mobile phone. He deposed about calling Crime Team. He had made endorsement on the copy of DD No. 10A and prepared rukka Ex.PW29/C. He handed over rukka to Ct. [ENTITY] and sent him to police station for registration of FIR. He handed over mobile phone of accused to Insp. [ENTITY] (PW-31). Insp. [ENTITY] had taken mobile phone in police possession vide seizure memo Ex.PW29/D.
27. He deposed that Insp. [ENTITY] seized blood stained earth control, earth control without blood stains, plaster from the wall having blood stains and the plaster without blood stains. He put all these articles in separate in plastic containers and marked them as S1, S2, S3 and S4 respectively after sealing the same with seal of 'MS' and taken these plastic containers in police possession vide Ex.PW29/E. IO also seized blood on gauze piece from the room and sealed after keeping the same in white envelope after sealing with the seal of 'MS' and taken into possession vide memo Ex.PW29/F.
28. He deposed that IO sent dead body of the deceased through ASI [ENTITY] for preservation in Mortuary, GTB Hospital. In the meanwhile, Ct. [ENTITY] returned to the spot and handed over tehrir and copy of FIR to the IO. After receiving the copy of FIR, he put FIR number on respective memos. IO prepared rough site plan of the spot.
29. He deposed that IO interrogated the accused and arrested him vide arrest memo Ex.PW29/G in his presence. IO took personal search of the accused vide memo Ex.PW29/H.
30. He also witnessed recording of disclosure statement of the accused by the IO vide Ex.PW29/I. He deposed that accused was taken on police remand and accused took them to shop namely [ENTITY] from where he had purchased the knife used in the offence. On 16.04.2014, PW-29 went to CPCR, PHQ, New Delhi and met SI [ENTITY] and obtained recording of conversation pertaining to DD No. 10A dt. 12.04.2014. He deposed that he heard the conversation from recording and prepared its transcript which is Ex.PW29/J. Two CDs were prepared by SI [ENTITY]. She also issued certificate u/[SECTION] [ACT]. The CDs and certificate were seized vide memo Ex.PW25/B. He also deposed about going to FSL, Rohini alongwith accused on 21.04.2014 for recording of voice sample of accused. Voice of PW-29 himself was also recorded as introductory voice. Two audio cassettes were handed over by the FSL which were bearing Mark O and C and were given serial number 1(O) and 2(C). These were seized vide memo Ex.PW23/DA. PW-29 also collected subsequent opinion regarding weapon of offence. He deposed about seizure of ornaments from the dead body by Insp. [ENTITY] vide memo Ex.PW30/A. He also deposed about seizure of blood stained blue-white mattress, blood stained gudri (homemade mattress), one blood stained yellow mattress, one blood stained pillow of green and blue, another blood stained pillow, one white blood stained pillow, one white blood stained shirt, one blood stained brown pant and one blood stained chunni and kept them in a cloth parcel and sealed them with seal impression 'MS' and seized them vide seizure memo Ex.PW30/B. He identified the accused. He also identified the case properties i.e. the green panty as Ex. P-2; one knife as Ex. P-4; concrete as Ex. P-6; concrete material as Ex. P- 7; concrete material as Ex. P-8; concrete material as Ex. P-9; one shirt having brown stains, one panty having few darker stains, one dupatta having dirty stains, one pillow having light brown stains, one pillow having light brown stains, one cushion having dirty stains, one gadda/mattress having light brown stains, one bichhona having darker stains and one quilt having light brown stains as Ex. P-10 to Ex. P-17 respectively; blood stained cotton swab as Ex. P-18; mobile phone as Ex. P-19; one pair silver pajeb, brown stained red thread with one artificial locket, four bichhway having red, green and violet coloured stones, one golden nose pin, one golden ring and one pair of golden ear ring as Ex. P-20 (colly.). one CD which was given by SI [ENTITY] as Ex.PW25/MO1; another CD of 'WRITEX' on which serial no. 576 and channel no. 154 is mentioned which was given by SI [ENTITY] as Ex.PW25/MO2; one audio cassette make SONY mark O as Ex. PW28/MO3; and another CD make SONY mark C (copy of original cassette) as Ex.PW29/MO4.
31. In cross-examination, he told that knife was sealed and seized before sending rukka. Seal after use was given to Ct. [ENTITY]. It has come that he did not obtain signatures of attesting witnesses of seizure memo of knife on the cloth of parcel of the knife. He told that he did not seize mobile phone of accused till he conducted proceedings and he could not give reason for the same. He denied the suggestion that accused was not having any mobile phone. He told that accused had handed over mobile phone to him and he gave the same to Insp. [ENTITY]. He told that when he reached near the spot, near which PCR van was parked, ASI [ENTITY] had signalled him from second floor of the house. He admitted that in the FIR Number on various documents, figure 342 was corrected to 343. He explained that the number was inadvertently written incorrectly and it was corrected by him.
32. It has further come that knife was kept in a polythene sheet and, thereafter, parcel was prepared. He admitted that as per seizure memo of mobile phone Ex.PW29/D, mobile phone Ex.P-19 is shown to have been handed over to the IO directly by the accused. He denied that all the documents were manipulated or fabricated in connivance with the IO.
33. PW-30 is Ct. [ENTITY]. He also deposed about investigation in which he joined as a witness.
34. In cross-examination, PW-30 was confronted with his previous statement Ex.PW30/DA wherein various facts were not mentioned.
35. PW-31 is Insp. [ENTITY]. He is the main IO. He deposed that he had reached the spot at about 6:00-6:15 am. He deposed about arresting accused. He deposed about all the steps taken during by investigation and already noted in evidence of other witnesses. He also identified the accused and the case property. He had prepared site plan Ex.PW31/A. He deposed about seizing underwear of the accused which was handed over to him by the doctor vide seizure memo Ex.PW31/B. Accused also pointed out the place of occurrence vide pointing out memo Ex.PW31/C. He also seized two sealed pullandas from Ct. [ENTITY] given to him by autopsy surgeon vide memo Ex.PW31/D. One PCR form is Ex.PW31/E. His application for taking voice sample is Ex.PW31/F. He had also seized electricity bill and copy of Voter ID card of landlord [ENTITY] vide memo Ex.PW31/G. Attested copy of DD No. 10-A is Ex.PW31/H. Certificate u/[SECTION] [ACT] regarding FIR is Ex.PW31/I. FSL results are Ex.PW31/J and K.
36. In cross-examination, he told that all the documents were written by SI [ENTITY] under his instructions. He denied that all documents were prepared later on. He denied the suggestion that figure 342 in FIR Number was overwritten as 343 on various documents. He told that phone Ex.P-19 was not handed over to him by SI [ENTITY]. He denied that phone has been planted. He told that he had not collected blood sample of the accused and explained that it was so because there was no injury on his person. It has come that he did not collect documentary proof of tenancy of accused from PW-1 [ENTITY]. PW-31 told that [ENTITY] had not got done tenant verification.
37. It has further come that transcript Ex.PW28/DC was given to accused for reading while collecting voice sample. He denied that knife was not sent to Autopsy Surgeon on 08.05.2014 for subsequent opinion. Objective of the defence was to show that it was defective or biased investigation and that the IO had connived with the family members of the deceased. MEDICAL / EXPERT WITNESSES
38. PW-15 is Dr. [ENTITY]. She had conducted postmortem on the dead body of [ENTITY]. PM report is Ex.PW15/A. Time since death was stated to be about one and a half days. Postmortem was conducted on 13.04.2014 at about 11:40 pm. Cause of death was opined to be "Haemorrhagic shock as a result of ante-mortem injury to neck associated blood vessels and abdomen produced by sharp edged weapon". PW-15 had handed over clothes of deceased and her blood in gauze to the IO in sealed condition.
39. PW-15 deposed about giving subsequent opinion. She deposed that on 08.05.2014, IO had produced one sealed parcel before her which was having seal of SR. It was found to be containing knife. The subsequent opinion is Ex.PW15/B. She had prepared sketch of the knife which is Ex.PW15/C. She identified the case exhibits. Light brown colour saree piece is Ex. P-1; green colour panty is Ex. P-2; one gauze parcel cover is Ex. P-3; knife is Ex. P-4; and cloth piece is Ex. P-5.
40. In cross-examination, it has come that no sample seal was received with parcel of knife.
41. PW-28 is Dr. [ENTITY]. He had examined the questioned recording and voice sample recording. He opined that voice of the speaker in both the recordings is of the same person i.e. the accused. His report is Ex.PW28/A.
42. In cross-examination, he admitted that he had not mentioned some details in his report. It has come that seal of MS has been mentioned in the report. He explained that seal was of SR and MS has been inadvertently mentioned. He denied that he never examined any cassette. He told that 10 - 12 clue words are required for comparison of voice. He admitted that in his report Ex.PW28/A, nothing is mentioned about clue words.
43. PW-32 is Dr. [ENTITY]. She had examined exhibits in Biology Division. Her reports are Ex.PW32/A and B. As per her opinion, blood was detected on exhibits 'S1', 'S3', 'S5a', 'S5b', 'S5c', 'S5d', S5e', S5f', S5g', 'S5h', 'S5i', 'S6', 'S7', 'S8a', 'S8b', 'S9' and 'S10'. Blood could not detected on exhibits 'S2' and 'S4'. Further, the blood found on exhibits 'S1', 'S3', 'S5a', 'S5b', 'S5c', 'S5d', S5e', S5f', S5g', 'S5h', 'S5i', 'S6', 'S7', 'S8a', 'S8b', 'S9' and 'S10' was of human origin. The blood found on exhibits 'S1', 'S5a',S5b', 'S5d', 'S5e', 'S5f', 'S5g', 'S5h', 'S6', 'S7', 'S8a', 'S8b', 'S9' and 'S10' was of B group. The exhibits 'S3', 'S5c' and 'S5i' showed no reaction. The blood group of the deceased was B.
44. In cross-examination, it has come that she had not conducted DNA examination of the exhibits as the IO did not request for it. FORMAL WITNESSES
45. PW-5 ASI [ENTITY] had gone to the spot after receiving DD No. 10-A alongwith Ct. [ENTITY] (PW-6). He met SI [ENTITY] there. He saw dead body of [ENTITY] lying on the floor of the room on the 2 nd floor of the house. He had made application Ex.PW5/A for preserving dead body of [ENTITY] at GTB Hospital mortuary.
46. PW-7 [ENTITY] had gone to the spot on 12.04.2014 and searched for chance prints. However, he could not find any chance prints. He had examined the knife also which was lying there but on the knife as well, there was no chance prints.
47. PW-8 Ct. [ENTITY] is the photographer. He had taken photographs of the scene of crime. Photographs are Ex.PW8/A-1 to A-32. Negatives are Ex.PW8/B-1 to B-32.
48. PW-11 [ENTITY] is brother of deceased. He had identified her dead body vide statement Ex.PW11/A. He also received the dead body vide receipt Ex.PW9/A.
49. PW-12 is [ENTITY]. He was Duty Officer on 12.04.2014. He deposed that at about 4:25 am, he received wireless message from Wireless Operator and he recorded DD No. 10-A. He telephonically informed SI [ENTITY]. He also directed ASI [ENTITY] alongwith Ct. [ENTITY] to reach the spot. Copy of DD No. 10-A is Ex.PW12/A.
50. At about 7:45 am, he received rukka from Ct. [ENTITY] which was sent by SI [ENTITY] and he registered FIR No. 343/12 u/[SECTION] [ACT] through Computer Operator. Copy of the FIR is Ex.PW12/B. He had made kayami DD No. 14-A and copy of the same is Ex.PW12/C.
51. PW-13 is [ENTITY]. He had delivered copies of FIR to various senior officers and [ENTITY] MM.
52. PW-14 Sh. [ENTITY] was Tehsildar/Executive Magistrate, Seelampur. On 13.04.2014, on directions of SDM, Seelampur, he had reached Office of the SDM. He met parents of the deceased [ENTITY] and [ENTITY]. He deposed that [ENTITY] produced a complaint before him which is Ex.PW9/C. PW-14 recorded statement of the parents which is Ex.PW9/D. He deposed about preparing inquest papers which are Ex.PW14/A. He had recorded statement regarding identification of dead body. He made request for postmortem vide Ex.PW14/B. His directions given in writing is Ex.PW14/C.
53. PW-16 [ENTITY] is Nodal Officer from Idea Cellular Ltd. He deposed that he provided Call Details Record (CDR) of mobile no. 8750988081 (Ex.PW16/A) to the IO. He produced Customer Application Form (CAF). CAF is Ex.PW16/B (colly.) He deposed that as per record, the said mobile number was issued to Sh. [ENTITY] S/o [ENTITY]. He also produced Certificate u/[SECTION] of [ACT] which is Ex.PW16/C. Copy of Aadhar Card of [ENTITY] was annexed on the original CAF.
54. PW-17 is HC [ENTITY]. He had taken the exhibits from malkhana and deposited the same at FSL, Rohini vide Road Certificate on 18.06.2014.
55. PW-18 is Insp. [ENTITY]. He was incharge Mobile Crime Team. He received information from Control Room at about 4:50 am. He reached the spot alongwith other members of the team. He saw dead body lying on the mattress on the floor. He noticed stab injuries and that throat was slit. He inspected the scene of crime. He found one knife below the pillow which was beneath the head of the dead body. He prepared SOC report which is Ex.PW18/A. He identified the knife which is Ex.P-4.
56. PW-19 Ct. [ENTITY] had collected PCR form from Control Room, PHQ and handed over the same to the IO.
57. PW-20 SI [ENTITY] had gone to GTB Hospital mortuary alongwith IO. He witnessed handing over of dead body of [ENTITY] to relatives vide Ex.PW9/A.
58. PW-20 (again) is HC [ENTITY] . He deposed that on 12.04.2014, he was working as MHC(M). He produced record of deposit and movement of case properties. The record is Ex.PW20/A to D.
59. PW-21 is [ENTITY]. He had prepared scaled site plan which is Ex.PW21/A.
60. PW-23 is [ENTITY]. He deposed about recording of voice sample of accused at FSL, Rohini on 21.04.2014. Voice sample of PW-23 was also taken.
61. PW-24 is Ct. [ENTITY]. He deposed that voice sample of the accused was taken by FSL officials in his presence. Insp. [ENTITY], SI [ENTITY] and [ENTITY] were with him. He had also brought postmortem report on 22.04.2014.
62. PW-25 is SI [ENTITY]. She deposed about handing over voice call recording of mobile no. 8750988081 (typed as 8750988021 in the evidence). She had prepared CDs of the recording. She had handed over two CDs to the IO alongwith certificate u/[SECTION] [ACT]. Certificate is Ex.PW25/A. The CDs were put in a parcel and sealed with seal of SR. IO seized the same vide memo Ex.PW25/B. CDs are Ex.PW25/MO1 and PW25/MO2.
63. In cross-examination, she admitted that she had not signed on the CD as well as its parcel cloth. She told that custodial of the system from which CDs were prepared was the ACP.
64. PW-26 Ct. [ENTITY] had accompanied SI [ENTITY] to CPCR PHQ for obtaining recording of voice call. He witnessed Ex.PW25/B. STATEMENT OF ACCUSED
65. Incriminating circumstances appearing in evidence against accused was put to him as required u/[SECTION] [ACT]. Accused stated that he was innocent and was falsely implicated.
66. As some incriminating circumstances were left out inadvertently, supplementary statement of accused was recorded u/[SECTION] [ACT]. He denied all the incriminating circumstances.
67. Accused took up the plea that his brother-in-law [ENTITY] and other in-laws connived with police officials and falsely implicated him. He told that mobile phone no. 8750988081 was not used by him.
DEFENCE EVIDENCE
68. He examined one witness in defence. Accused called official of FSL as defence witness. Sh. [ENTITY] was examined as DW-1.
69. He produced letter dt. 03.04.2018 of Director, FSL which is Ex.DW1/A. He stated that visitor register for the date 21.04.2014 was not available because upto 20.11.2013, entries were made manually and thereafter, in computer system. But w.e.f. 05.05.2014, again manual entries were started. SUBMISSIONS OF THE PARTIES
70. I have heard Sh. [ENTITY], learned Addl. PP for the [ENTITY] and Sh. [ENTITY], learned Amicus Curiae for the accused. I have perused the record. I had also gone through the written submissions filed on behalf of the accused.
71. Learned Addl. PP for the Sate argued that prosecution has proved the charge beyond all reasonable doubts. He referred to testimonies of landlord, landlady and PCR officials and contended that it was accused who had killed his wife. He pointed out that weapon of offence was also recovered from the spot of crime. He highlighted subsequent opinion given by PW-15 regarding the knife as possible weapon of offence. He submitted that accused was lastly in the company of the deceased and was found at the spot after the crime. He also referred to report regarding call recording in which voice of accused has been confirmed. He prayed for conviction.
72. On the other hand, learned defence counsel vehemently submitted that prosecution was unable to prove the charge beyond all reasonable doubts. He contended that there were various contradictions and discrepancies in the evidence of witnesses. He referred to the report of voice expert as unreliable. He contended that PW-28 had no authority to examine the call recording. He referred to relevant provisions of law and contended that no notification had been issued authorising FSL, Rohini to examine the said data. He also argued that testimonies of the witnesses is insufficient to prove that accused had killed his wife.
73. Learned Amicus Curiae for accused relied upon [PRECEDENT] titled Ganpat Singh vs. The [ENTITY] of Madhya Pradesh; 2001 [1] JCC [Delhi] 21 titled [ENTITY] Kumar vs. [ENTITY]; AIR 1976 SC 69 titled [ENTITY] vs. [ENTITY] of Uttar Pradesh; 2012 [2] JCC 1435 titled [ENTITY] Sada @ Matua vs. The [ENTITY] (NCT of Delhi); AIR 1986 SC 3 titled [PRECEDENT]; AIR 2016 SC 3772 titled Sudhir Chaudhary vs. [ENTITY] (NCT of Delhi); 2012 [2] JCC 1092 titled Riaz Ali vs. [ENTITY] (Govt. of NCT) of Delhi; 2015 (3) LRC 380 (Del)(DB) titled [ENTITY] vs. Sunil Kumar @ Sagar @ Rahul & Ors.; and [PRECEDENT] titled Rajeev Ohlan vs. [ENTITY] (NCT of Delhi).
74. I have considered the submissions.
FINDINGS
75. The prosecution was required to prove the ingredients of the offence. On the basis of the submissions of the parties, the following points for determination arise in the present case:
a). Whether accused was present with the deceased at the time of the offence?
b). Whether accused got recovered knife Ex. P-4?
c). Whether said knife was used in committing the offence?
d). Whether accused had killed his wife?
76. All the points for determination are taken up together.
77. The case is based on circumstantial evidence. The law regarding cases based on circumstantial evidence is well settled. The famous case of Sharad Birdhi Chand Sarda v. [ENTITY] of Maharashtra, AIR 1984 SC 1622 is the guiding judgment. The five golden principles reiterated in the said judgment may be noted as below:
a). the circumstances from which the conclusion of guilt is to be drawn should be fully established;
b). the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
c). the circumstances should be of a conclusive nature and tendency;
d). they should exclude every possible hypothesis except the one to be proved; and
e). there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
78. The prosecution also relies upon the circumstance of last seen. In [ENTITY] of U.P. v. Satish, (2005) 3 SCC 114, Hon'ble Supreme Court has held that the last seen theory comes into play where the time gap between the point of time when the accused and deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. This view was approved again in the case of Mohd. Azad alias Samin v. [ENTITY] of West Bengal, (2008) 15 SCC 449.
79. Learned counsel laid great emphasis on various contradictions and discrepancies appearing in evidence of various witnesses. He contended that these contradictions and discrepancies have destroyed the prosecution case.
80. As to what is the effect of contradictions and discrepancies, there is no confusion. In (2013) 12 SCC 187 titled Bakhshish Singh v. [ENTITY] of Punjab & Anr., Hon'ble Supreme Court, regarding effect of contradictions which appear in evidence of witnesses, observed as under:
"This Court in several cases observed that minor inconsistent versions/discrepancies do not necessarily demolish the entire prosecution story, if it is otherwise found to be creditworthy. In [PRECEDENT], this Court after scrutinizing several earlier judgments relied upon the observations in Narayan Chetanram Chaudhary v. [ENTITY] of Maharashtra (2000) 8 SCC 457 to the following effect:
"42. Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person."
In Sunil Kumar Sambhudayal Gupta (Dr.) v. [ENTITY] of Maharashtra :
(2010) 13 SCC 657, this Court observed as follows:
"30. While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide [ENTITY] v.Saravanan) (2008)17SCC 587"
81. Learned amicus curiae stressed upon the evidences of PW-29 SI [ENTITY], PW-30 Ct. [ENTITY] and PW-31 Insp. [ENTITY] and contended that from their testimonies, the recovery of the mobile phone has become doubtful. He highlighted that PW-29 says that mobile phone was handed over to him by the accused and he in turn gave it to Insp. [ENTITY]; but PW-31 says that accused had handed over the phone to him. Further, PW-30 says that mobile phone was handed over to SI [ENTITY] and sealed by him. Learned counsel thus argued that whole of the prosecution case was destroyed by these witnesses.
82. In my view, recovery of mobile phone cannot be doubted for these reasons. These are not so significant contradictions. One central point which can be culled out is that there was a mobile phone with the accused which was seized. PCR call record (Ex.PW4/A) shows making of a call from this mobile phone.
83. Learned defence counsel also contended that the SIM Card in mobile phone Ex. P-4 was registered in the name of [ENTITY] (PW-11), brother of the deceased. He pointed out that IO did not make any inquiry from PW-11 as to how his mobile phone number was in possession of the accused. He submits this also creates doubt.
84. There is no weight in this submission as well. It was the accused who was found by PCR officials when they reached the spot and accused was having the mobile phone in question. The defence did not question PW-11 on this aspect in the witness box.
85. Prosecution claims that knife was recovered from the spot at the instance of the accused. It was kept beneath a pillow.
86. Learned defence counsel focused on recovery of knife. He argued that as the seizure memo of the knife and its sketch bear FIR number which were prepared by SI [ENTITY] and by which time FIR had not been registered, possibility of knife being planted cannot be ruled out. He further pointed out that there was no signature of witnesses on the parcel cloth of knife which also creates doubt. He submitted that even signature of accused were not obtained on the seizure memo of the knife.
87. These contentions are liable to be rejected for the reason that recovery of the knife is fully proved. In the photographs, knife is visible. Further, PW-29 has explained that FIR number was written on the seizure memo and sketch after registration of the FIR. There is nothing wrong in it. Reliance on judgment in the case of [ENTITY] (supra) is not of any help. As far as signatures of witnesses not being there on the parcel cloth, same is not of much significance since signatures are there on the seizure memo of the knife. Absence of signature of accused on the seizure memo is also inconsequential. This fact alone is not enough to doubt the recovery of the knife. Judgment in case of [ENTITY] (supra) is not of any help as the same is confined to its own facts. Further, cited decision in [ENTITY]'s case (supra) is also to be read in the context of its own factual matrix. Hon'ble High Court in the said decision doubted presence of accused as his signature were not there on documents prepared by the investigating agency. However, in the present case, there is evidence of independent witnesses PW-1 and PW-2 i.e. landlord and landlady which confirms presence of accused at the spot.
88. Learned defence counsel also submitted that blood marks on knife were not shown in the sketch. Further, knife was put in a polythene before being kept in parcel but no such polythene was found in the parcel when it was opened in the FSL. He also pointed out that place where knife was lying is also not shown in the site plan. According to learned counsel, these are also reason to doubt the recovery of the knife.
89. These submission also do not merit any consideration since knife is visible in the photograph and blood on it is also visible.
90. He also referred to Ex. PW20/A i.e. copy of the Malkhana Register wherein it is mentioned that parcel of knife was deposited by SI [ENTITY] whereas prosecution case is that it was deposited by Insp. [ENTITY].
91. Again, it is trivial contradiction. There is no doubt about recovery of the said knife. In the photographs Ex. PW8/A-1 to A-32, dead body of [ENTITY] can be seen lying on the floor having injury marks and lot of blood. Knife is also visible in various photographs. Blood is also visible on the knife.
92. PW-3 [ENTITY] has specifically deposed that it was accused who had purchased the said knife from him. He has identified the knife Ex.P-4 as well. His evidence inspires confidence. He has got no reason whatsoever to falsely deposed against the accused. Thus there is no doubt about recovery of knife at instance of the accused.
93. PW-15 Dr. [ENTITY] has confirmed that knife Ex.P-4 is possible weapon of offence. There is nothing on record to counter the said opinion. Thus knife Ex. P-4 was used in the offence.
94. Seizure memo was prepared by SI [ENTITY] under instructions of IO Insp. [ENTITY]. Thus recovery of knife is not doubtful for the reasons mentioned by the defence.
95. Learned amicus curiae then referred to various documents prepared during investigation and highlighted that there is overwriting in the FIR number. He wanted to convey that these documents were ante timed.
96. Overwriting was done to correct the FIR number as explained by PW-29. It is not uncommon that sometimes wrong FIR number gets written on the documents. Correction of the FIR number could be done. If these documents were prepared later on, as alleged by learned defence counsel, there would have been no need to correct the FIR number because the IO would be knowing the FIR number in advance. There is no force in these contentions as well.
97. Learned counsel also vehemently submitted that the subsequent opinion given by PW-15 is not to be relied upon. He contended that movement of knife from malkhana to the hospital on 08.05.2014 has not been shown by the prosecution. He further pointed out that PW-15 did not show any dried blood stains on the knife in sketch Ex. PW15/C. There was no sample seal sent to PW- 15 as well. He contended that there is no endorsement in the Malkhana Register about receiving back the knife from the hospital. And further, there is confusion as to who had taken knife to PW-15. He pointed out that name of SI [ENTITY] is appearing but he has not been examined.
98. Opinion of PW-15 regarding knife Ex. P-4 being the weapon of offence is not doubtful for the abovesaid reasons. As already pointed out earlier, knife with blood is visible in the photograph of the spot. This is sufficient to indicate that the said knife was used in the offence. To corroborate the said fact, opinion of PW-15 is sufficient. PW-15 has identified the knife in the court as well. Further, as per report Ex. PW32/B (given by Biology Expert), blood was detected on the knife in question. Thus these contentions also need to be discarded.
99. Lastly, learned counsel turned to the voice sample report. He argued that the said report is inadmissible as the same was given without any authority. He referred to provisions of [ACT]; [ACT]; and [ACT] and contended that before 11.04.2018, FSL Rohini had no authority to examine the mobile phone or the electronic data. He also contended that the procedure adopted by PW-28 was not proper and as per law. He pointed out various shortcomings in the proceedings conducted by PW-28. He highlighted that in the report, even the particulars of the seal on the exhibits has been wrongly mentioned as SR and PW-28 tried to clarify that it was wrongly written. Correct seal was MS. He argued that this much negligence cannot be appreciated.
100. At this stage, the relevant provisions of the law may be noted. The said provisions of law read as under:
[SECTION] of [ACT]:
Electronic Record" - The words "Electronic Record" shall have the meaning assigned to them in [SECTION] of the [ACT].
[SECTION] of [ACT]:
Electronic Record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.
[SECTION] of [ACT]:
Opinion of Examiner of electronic evidence - When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in [SECTION] of the [ACT] is a relevant fact.
Explanation - For the purpose of this section, an Examiner of Electronic Evidence shall be an expert;
[SECTION] of [ACT];
Central Government to notify Examiner of Electronic Evidence - The Central Government may, for the purposes of providing expert opinion on electronic form evidence before any court or other authority specify, by notification in the official Gazette, any Department, body or agency of the Central Government or a [ENTITY] Government as an Examiner of Electronic Evidence.
Explanation:- For the purpose of this section "electronic form evidence" means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones, digital fax machines.
101. The Central Government has recently issued notification being S.O. 1635 (E) dated 11.04.2018 u/[SECTION] of [ACT] and has notified FSL, Rohini as Examiner of Electronic Evidence within India for the following i.e. (a) Computer (Media), Forensics excluding Floppy Disk Drive and (b) Mobile Devices Forensics. It is by virtue of this notification that learned Counsel has contended that FSL, Rohini had no authorization to compare voice sample of the accused with questioned recording on 06.05.2014. He contended that questioned recording was electronic evidence and, therefore, could be examined only by Examiner of Electronic Evidence as notified by the Government.
102. In my view, merely because notification has been issued now recently, it cannot be said that all the reports furnished by FSL, Rohini about electronic evidence are to be discarded. The publication of the notification only serves the purpose that the authorities/institutions notified thereunder to be examiner of electronic evidence need not prove in the court of law that they are expert in the said field. Once notified, the expertise of the institution is recognized and established. In other cases, the expert who had examined the electronic evidence will have to prove his expertise in the court of law. He will firstly have to show that he is an expert within the meaning of [SECTION] of [ACT]. This is the only purpose served by the notification.
103. Report of PW-28 which is Ex.PW28/A is not to be discarded on this ground as contended by learned Counsel.
104. However, report of PW-28 is to be discarded for other reasons. In the cross-examination, as already noted above, various discrepancies were revealed. There was discrepancy regarding whether seal of SR or MS was on the sealed exhibits. There are no details in the report as to which particular words were taken as clue words for comparison. PW-28 has not given reasons in the report for reaching the conclusion that the voice in the questioned recording and sample recording is of the same person. As such, the said opinion cannot be accepted.
105. Even after rejecting the report Ex.PW28/A, prosecution case cannot be said to have been weakened. Rejection of report about voive call recording does not lead to the conclusion that accused was not present at the spot.
106. From testimonies of PW-1 [ENTITY] (landlord) and his wife PW-2 Smt. [ENTITY] (landlady), there remains no doubt that accused was residing as tenant in the 2nd floor of the house with his wife/deceased [ENTITY]. Both have categorically deposed that accused was with his wife/deceased in the night and he was present in the house when police arrived there. Thus, presence of accused at the crime scene is duly established. PW-1 and 2 have no reason to falsely implicate the accused. Merely because they knew father of the deceased is no reason to doubt their testimonies. From their evidence, it has been fully established that accused was with the deceased lastly and he was there even after he had killed her.
107. Thus presence of accused has been fully established. Accused is husband of the deceased. He has to explain as to how deceased died because he was lastly with her. Accused, however, has not given any explanation. This goes against him.
108. As the case is based on circumstantial evidence, motive for committing the crime also assumes significance. In Rohtash Kumar Vs. [ENTITY] of Haryana, reported as (2013) 14 SCC 434, the Hon'ble Supreme Court observed as under:
"28. The evidence regarding the existence of a motive which operates in the mind of the accused is very often very limited, and may not be within the reach of others. The motive driving the accused to commit an offence may be known only to him and to no other. In a case of circumstantial evidence, motive may be a very relevant factor. However, it is the perpetrator of the crime alone who is aware of the circumstances that prompted him to adopt a certain course of action, leading to the commission of the crime. Therefore, if the evidence on record suggests adequately, the existence of the necessary motive required to commit a crime, it may be conceived that the accused has in fact, committed the same.
(Vide: Subedar Tewari v. [ENTITY] of U.P. & Ors., AIR 1989 SC 733; Suresh Chandra Bahri v. [ENTITY] of Bihar, AIR 1994 SC 2420; and Dr. Sunil Clifford Daniel v. [ENTITY] of Punjab, (2012) 11 SCC 205)."
109. Regarding motive, prosecution has examined parents of the deceased i.e. PW-9 [ENTITY] and PW-10 Smt. [ENTITY]. They have deposed that accused used to ill-treat and harass the deceased. They have deposed that accused was drunkard and used to beat [ENTITY]. They have stated that after they had brought [ENTITY] to Delhi, accused used to pressurize [ENTITY] to return to his native place but [ENTITY] used to refuse. Thus, even motive for the murder is appearing from material on record.
110. It is setlled law that lapses committed on the part of the IO cannot destroy the prosecution case if the same has been proved through cogent evidence. Not much importance can be given to the faults committed by the IO. In Ram Bihari Yadav v. [ENTITY] of Bihar & Ors., AIR 1998 SC 1850, Hon'ble Apex Court observed that if primacy is given to a designed or negligent investigation, or to the omissions or lapses created as a result of a faulty investigation, the faith and confidence of the people would be shaken not only in the law enforcing agency, but also in the administration of justice.
111. The following circumstances stand established:
a). Deceased [ENTITY] was wife of accused.
b). Deceased and accused were residing as tenants in a room on 2nd floor in H.No. C-44/300, Gali No. 15, [ENTITY], 4 Pushta, Usmanpur, Delhi-53.
c). That accused was with deceased in the intervening night of 11 and 12.04.2014.
d). That accused made call to PCR from mobile no. 8750988081 at about 4:30 am.
e). That when PCR officials reached the spot, accused was present there and in the room dead body of his wife was lying with injuries.
f). That blood of deceased has been found on underwear of accused as well as knife.
g). That accused has not explained how his wife died.
112. The above circumstances form a complete chain leading to only one conclusion that accused had killed his wife with knife.
113. The next question is what offence is made out from these facts?
114. In the case of Chenda @ Chanda Ram vs. [ENTITY] of Chhatisgarh, reported as (2013) 12 SCC 110, Hon'ble Supreme Court considered the difference between 'murder' and 'culpable homicide not amounting to murder' and has once again thrown light on this issue. It observed as under:
"2. 'Homicide', as derived from Latin, literally means the act of killing a human being. Under [SECTION] of the [ACT] (hereinafter referred to as 'the Code'), homicide becomes culpable when a human being terminates the life of another in a blameworthy manner. Culpability depends on the knowledge, motive and the manner of the act of the accused. The offence is punishable under either [SECTION], or [SECTION] which consists of two parts "
115. Thereafter, it also took note of another landmark judgment in the case of [ENTITY] of Andhra Pradesh vs. Rayavarapu Punnayya and Another , (1976) 4 SCC 382, and observed:
"12. In [ENTITY] of Andhra Pradesh vs. Rayavarapu Punnayya and Another, it was held that culpable homicide without the special characteristics of murder is culpable homicide not amounting to murder, falling under [SECTION] of the Code. It was further held that there are three degrees of culpable homicide. The first is murder under [SECTION]; second, culpable homicide not amounting to murder falling under the first part of [SECTION]; and third is culpable homicide not amounting to murder falling under the second part of Section
304. To quote: -
"12. In the scheme of the [ACT], 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder', is 'culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the greatest form of culpable homicide which is defined in [SECTION] as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section
304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second Part of [SECTION]."
116. As per postmortem report Ex.PW15/A, following injuries were noticed on the dead body of Smt. [ENTITY]:
External Antemortem Injuries:
a). Incised cut throat wound of size 11 x 0.5 cm. x 3 cm present horizontally over neck, 9.5 cm below chin 4.5 cm above supra sternal notch.
b). Incised wound 2 x 0.1 cm x 0.5 cm present over right acrominum vertically.
c). Incised wound 4 x 0.2 cm x 0.8 cm present horizontally over right shoulder top 12 cm from midline.
d). Incised wound 7 x 0.1 cm x 0.5 cm present obliquely over right shoulder front 11 cm from midline, upper midline end is touching injury No. 3.
e). Incised stab wound 4.6 x 0.2 cm x 12 cm present horizontally over left side back, medial angle acute 2 cm from midline, 12 cm above natal left.
f). Incised stab wound 3 x 0.2 cm x 10.5 cm present horizontally over right side flank, 11 cm above anterior superior iliac spine and 14 cm from midline.
g). Incised wound L-shaped 1.5 x 0.1 cm .0.3 cm present over medial aspect of 2nd left knuckle.
117. The injury no. 1, 5 and 6 were opined as sufficient to cause death individually and collectively in the ordinary course of nature.
118. In the present case, death of deceased [ENTITY] is due to slitting of her throat with a knife. It has been established that accused had killed her. The act of slitting the throat of the deceased shows that accused had intention to kill his wife. The injury no. 1, 5 and 6 were held to be individually and collectively sufficient to cause death in the ordinary course of nature. As such, [SECTION] [ACT] will also apply. No exception, as mentioned in [SECTION] [ACT], is applicable. Therefore, accused is guilty of murder.
119. In view of the above, accused [ENTITY] is held guilty of killing his wife Smt. [ENTITY] and is convicted for the offence punishable u/[SECTION] [ACT].
120. Let he be heard on sentence.
SANJAY Location: Announced in open court Karkardooma on 19th day of September, 2018. BANSAL Court Date: 2018.09.25 15:59:45 +0530 ([ENTITY]) Special Judge (NDPS) / ASJ / NE / KKD Courts / Delhi.