IN THE COURT OF SH. [ENTITY] : SPECIAL JUDGE : NDPS ADDL. SESSIONS JUDGE : [ENTITY] COURTS : DELHI [CASE NUMBER] FIR No. 312/07 P.S. Shalimar Bagh U/[SECTION] [ACT] State Versus [ENTITY] S/o Sh. [ENTITY] R/o Jhuggie no. 349, Ayurvedic Hospital, Haiderpur, Delhi. Date of Receipt : 24.09.2007 Date of arguments : 24.11.2010 Date of Decision : 09.12.2010 JUDGMENT :
1. The accused [ENTITY] has been chargesheeted by Police Station Shalimar Bagh for commission of offence under [SECTION] [ACT].
2. Case of the prosecution, briefly stated is that on 17.05.2007 at about 1.10 am, [ENTITY] reached Police Station Shalimar Bagh and told that he is residing in street no. 9, Shalimar Bagh along with his wife [ENTITY] as tenant and works as a driver. He was married with [ENTITY] in the year 2000 and out of the wedlock, two boys were born. One of them is residing with his parental grand parents and other is with his maternal grand father. He suspected that his wife is having illicit relations. On 16.05.2007, at about 6.00 pm, he returned home, but he did not find his wife at home. On inquiry from the neighbourhood, he came to know that she had gone towards [ENTITY], Haiderpur. He reached there, but could not find his wife there. He returned and found his wife at home. He inquired from her, but she was not able to give any satisfactory reply. Thereafter, he decided to kill her and at about 8.00 pm, he took her to a vacant ground situated by the side of railway track, DA Block, Shalimar Bagh. Thereafter, he took her near the boundary wall, pressed her neck, she became unconscious and fell down and he strangulated her with [ENTITY]. From there, he went to Rani Bagh, then to police station and made a complaint, on which [CASE NUMBER] was recorded and he singed the same. Said DD was assigned to Ins. [ENTITY], who along with the accused and staff reached at the spot. The accused led the police party to the vacant plot, near DA Block, Shalimar Bagh and on the track going by the side of boundary wall, he pointed out the dead body of his wife [ENTITY]. Crime team was called. Photographs were taken. Accused was arrested. Postmortem on the dead body was got conducted and doctor opined that the cause of death was asphyxia consequent upon ligature strangulation. After completion of the investigation, the charge sheet against the accused was filed in the court.
3. Learned Metropolitan Magistrate after complying with the provisions of [SECTION] [ACT], committed the case to the court of Sessions as the offence punishable u/[SECTION] [ACT] is exclusively triable by the Sessions Court.
4. Accused [ENTITY] was charged for the offences punishable U/[SECTION] [ACT]. The charge was read over and explained to the accused, to which he pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence.
5. The prosecution in order to prove its case, examined 19 witnesses in all.
6. [ENTITY] was examined as PW1. He is the father of the deceased and he stated that deceased was married with [ENTITY] and he used to beat and torture her to pressure her to earn money by doing illegal activities, but he was confronted on this point with the statement u/[SECTION] [ACT] recorded by the police as it was not mentioned therein. He denied the suggestion that deceased was having illicit relations with [ENTITY] or that she went away with [ENTITY].
7. Sh. [ENTITY] @ [ENTITY] was examined as PW2. He stated that about two years back, accused came to his shop along with his wife and stated that "[ENTITY] ji, dekho apki gali me kaya ho raha hai", on which PW2 asked him as to what had happened, but accused did not answer and went away along with his wife. He was also crossexamined by ld. Addl. PP, but he did not support the prosecution case.
8. Ct. [ENTITY] was examined as PW3. He was with the crime team, who visited the spot and was the photographer. He took photographs of the scene of crime and proved the same. 17 negatives, out of which six negatives were washed out, are Ex. PW3/1 to Ex. PW3/17 and eleven negatives were developed and the photographs are Ex. PW3/18 to Ex. PW3/28. During crossexamination, he deposed that they reached the spot at 2.45 am and remained there upto 3.30 am. He also stated that there was no light on the spot and they were having the search light.
9. SI [ENTITY] was examined as PW4. He was [ENTITY] of Crime Team and he proved his report Ex. PW4/A. During crossexamination, he stated that he does not know, if the accused was also there.
10. [ENTITY] was examined as PW5. He stated that on 17.05.2007, he was working as duty officer from 12.00 mid night to 8.00 am. At about 01.10 am, [ENTITY] came to the PS. He recorded the statement of [ENTITY] against [CASE NUMBER]. [ENTITY] signed the same at point B and it was assigned to Ins. [ENTITY]. Thereafter, on the basis of rukka at about 4.10 am, he recorded the FIR. He was crossexamined and during cross examination, he stated that it is not necessary that a person give complaint in writing. It can be oral which will be then recorded by the police officer. He denied the suggestion that accused came to the police station at about 11.00 pm or 11.30 pm to report that his wife is missing. He denied the suggestion that he did not read over [CASE NUMBER] to the accused. He denied the suggestion that accused did not give any such statement. He also denied the suggestion that before recording this DD, information regarding recovery of the dead body was received. He denied the suggestion that entries were manipulated.
11. Ct. [ENTITY] was examined as PW6. He delivered the copy of FIR to senior officer i.e Area Magistrate, Joint CP, Northern Range and DCP North West District.
12. Dr. [ENTITY], who conducted the postmortem on the dead body was examined as PW7. He proved the postmortem report as Ex. PW7/A. He found that cause of death is asphyxia consequent upon ligature strangulation. Ligature mark was ante mortem in nature caused by soft ligature material, possible by the [ENTITY] found around the neck. Injury no. 2 was postmortem in nature. Ligature pressure over neck is sufficient to cause death in ordinary course of nature. Time since death is approximately about 40 hours. Testimony of this witness has gone unchallenged and uncontroverted.
13. SI [ENTITY], draftsman was examined as PW8 and he proved the scaled site plan of the scene of crime prepared at the instance of Ins. [ENTITY] as Ex. PW8/A.
14. SI [ENTITY] was examined as PW9. He was on emergency duty in PS Shalimar Bagh on the intervening night of 16/17.05.2007. He stated that at about 1 AM, [ENTITY] came to the PS and told that he has killed his wife and the same was recorded in his roznamcha vide DD no. 6 A. Thereafter, he along Ins. [ENTITY], Ct. [ENTITY], Ct. [ENTITY] and accused left the PS and accused led them to an open ground adjacent to DA Block, Shalimar Bagh, where accused had showed them a dead body of his wife [ENTITY] near the boundary wall near the entrance of pedestrians. Pointing out memo was prepared and same is Ex. PW9/A. Crime team was called on the spot. They examined the scene of crime and gave the report. Ins. [ENTITY] prepared the rukka and sent the same for registration of the case. On the spot, a pair of light blue colour chappal were found lying near the dead body, which were lifted, kept in a piece of cloth, sealed with the seal of RP and was seized vide memo Ex. PW9/B. Broken pieces of bangles were also found there, which was lifted, kept in a white paper, converted into parcel, sealed with the seal of RP and seized. Earth control and grass were lifted and kept in a plastic jar and in a piece of cloth and was sealed with the seal of RP and was seized vide memo Ex. PW9/C. Dead body was sent to the mortuary of BJRM Hospital through Ct. [ENTITY]. The accused was arrested vide arrest memo Ex. PW9/E and his personal search was conducted. IO prepared the rough site plan. He also also identified the exhibits, which were lifted from the spot. He was crossexamined by the learned defence counsel, but nothing material came on record favouring the accused.
15. [ENTITY] was examined as PW10. He was working as MHCM and he proved the entries in register no. 19 about deposit of the exhibits in Mal khana.
16. [ENTITY] was examined as PW11. He has also not supported the prosecution case. He was declared hostile and was crossexamined by the ld. Addl.PP, but nothing came on record favouring the prosecution.
17. Ct. [ENTITY] was examined as PW12. He reached the spot along with IO and he fully supported the prosecution version except about the lifting of broken pieces of bangles. During crossexamination, he stated that they reached at the spot at about 1.00 or 1.30 am in govt. vehicle. [ENTITY] was prepared in the presence of crime team and he does not remember, if crime team was present, when the broken pieces of bangles and the slippers were seized.
18. Ct. [ENTITY] was examined as PW13. He took the exhibits to FSL Rohini on 06.06.2007 and deposited the same there vide [CASE NUMBER]. No body tampered with the same, till it remained in his custody.
19. [ENTITY] was examined as PW14. He also did not support the prosecution case. He was crossexamined at length by Ld. Addl. PP, but nothing favouring the prosecution came on record.
20. Ct. [ENTITY] was examined as PW15. He visited the spot along with Ins. [ENTITY], SI [ENTITY], Ct. [ENTITY] and the accused and deposed on the same lines about recovery of dead body and lifting of the exhibits. He fully supported other witnesses. He took the dead body to the BJRM Hospital and remained in the mortuary, till the postmortem. During crossexamination, he stated that he does not remember the colour of the pieces of bangles which were seized. He also does not remember from where the IO brought the material for writing the memos. He also stated that yellow shirt, white [ENTITY] and white colour salwar were found on the dead body. It is pertinent to mention here that according to other witnesses, [ENTITY] was of yellow colour.
21. Sh. [ENTITY], senior scientific officer (physics), FSL Rohini was examined as PW16 and he proved his report as Ex. PW16/A and according to his report, the soil sample adhering clothes found on the dead body and soil adhering to pair of chappal was found physically similar characteristics with soil sample lifted from the spot. The testimony of this witness has gone unchallenged and uncontroverted.
22. Sh. [ENTITY] was examined as PW17. He stated that on 16.05.2007 at about 6.00 pm, when he was standing outside his house, he saw accused and his wife quarreling with each other and thereafter, he saw the accused going somewhere with his wife and when he inquired that as to where they were going, accused told him that he is going to the village. Thereafter, accused and his wife did not return to the room. Next day, in the morning, police came and told him that his tenant had committed murder of his wife. He denied the suggestion that accused alone left the home and his wife was not with him. He also denied the suggestion that accused had no talks with him while going along with his wife.
23. Ins. [ENTITY] of the case was examined as PW18. He also fully supported the prosecution case. During crossexamination, he stated that he recorded the disclosure statement of the accused in the park, where he was arrested and no public person was present in the park when the accused was arrested. He denied the suggestion that disclosure statement was not read over to the accused.
24. Sh. [ENTITY], Asstt. Director, Biology Division, FSL, Rohini, Delhi was examined as PW19 and he proved his report Ex. PW18/G and Ex. PW 18/H and according to the report, blood of human origin was found on the clothes of the deceased, which was also blood group of the deceased. Thereafter, prosecution evidence was closed.
25. Statement of accused was recorded u/[SECTION] [ACT], wherein he denied the entire evidence. However, he admits that he took one room on rent from PW17 [ENTITY]. He also admits that he was residing in that room with his wife [ENTITY] from 10.05.2007. He denied the question that he went to the PS and told the police that he had killed his wife, on which [CASE NUMBER] was recorded. He also denied that he got recovered the dead body of his wife. He did not wish to lead evidence and stated that he is innocent. He stated that he went to the PS to lodge missing report of his wife but police told him to come in the morning. In the morning, he went to the PS. The police took him to BJRM Hospital and shown him the dead body of a lady, which he identified to be that of his wife named [ENTITY]. Thereafter, the case was fixed for final arguments.
26. I have heard ld. Addl. PP for the State, ld. Defence counsel for the accused and have gone through the record.
27. Ld. Addl. PP submitted that prosecution in order to prove its case has examined 19 witnesses. The accused was married with [ENTITY]. He was living in the house of PW17 as tenant as deposed by PW17 and accused had also admitted this fact in reply to questions no. 4 and 5 of statement u/[SECTION] [ACT] He was residing there along with his wife [ENTITY] only. This fact was deposed by PW17 and admitted by the accused. Accused was suspecting the fidelity of his wife and that is why, he used to quarrel with him. PW17 stated that on that day, he saw the accused quarreling with his wife [ENTITY] at about 6.00 pm and thereafter, he saw the accused going with his wife. This fact corroborates the statement, which was given by the accused to the police, on which [CASE NUMBER] was recorded. He stated that at about 6.00 pm, when he returned home, he did not find his wife there. On inquiry, he came to know that his wife had gone to Shishmahal, Haiderpur, but she was not there and he came back. He found his wife there and he made inquiries from her, but she was not able to give any satisfactory reply. PW 17 has further stated that thereafter, he saw the accused going along with his wife. Accused also informed the police in [CASE NUMBER] that thereafter he took his wife along with him at about 8.00 pm. PW17 has stood through the the test of crossexamination and it is not disputed that accused was living there, rather it is admitted in his statement u/[SECTION] [ACT] PW17 also denied the suggestion that accused alone left the home or that accused did not talk to him, while going with his wife. PW17 specifically stated that he inquired from the accused and he told that he is going to the village and thereafter accused and his wife did not return. Ld. Addl. PP submitted that in fact accused has taken his wife to a vacant plot, a secluded place and there, he killed her by strangulating her with [ENTITY]. This fact was disclosed by him to the police vide [CASE NUMBER]. This conduct of the accused immediately after the commission of offence is admissible u/[SECTION] of the [ACT]. This statement was given by him without any pressure or inducement and was a voluntarily statement. He was not an accused at that time and hence, it can be relied upon. Accused thereafter led the police team to the place, where he murdered his wife and got recovered the dead body. The fact that [ENTITY] died by strangulation is also proved and established by the postmortem report Ex. PW17/A, wherein doctor clearly says that cause is death is asphyxia consequent upon ligature strangulation. It is pointed out that ligature material is ante mortem in nature and caused by soft ligature material, possible by the [ENTITY] found around the neck of the deceased. Ld. Addl. PP submitted that keeping in view the testimony of PW17 corroborating the statement given by the accused himself before the police and consequent to that, he got recovered the dead body and his statement that he strangulated his wife and same also find corroboration from the postmortem report. All these facts clearly establish that it was the accused, who murdered his wife. Ld. Addl. PP submitted that even otherwise, according to PW17, accused was last seen going with his wife and accused told that he is going to his village. Thereafter no body had seen [ENTITY] alive. Thereafter, accused got recovered the dead body of his wife on the same night and he disclosed that he murdered his wife by strangulation, which is also corroborated by the medical evidence. The accused had not explained as to where he had parted from his wife. Ld. Addl. PP submitted that keeping in view the statement made by the accused, evidence of last seen,then recovery of dead body at the instance of accused himself, the accused be held guilty u/[SECTION] [ACT] and convicted accordingly.
28. Ld. Defence counsel submitted that this is not a case of ocular evidence.
Accused has been falsely implicated in this case. His wife was missing. He went to PS to lodge the missing report. In the meanwhile, police got the information about the dead body. Accused was called, who identified the dead body and he was implicated in this case. So far as, the statement of PW5 is concerned, accused did not make any such statement. It was manipulated by the police official in order to implicate the accused. IO was also not present at the relevant time, when this statement was recorded and hence it cannot be relied upon. Ld. Counsel further submitted that if accused would have been present and dead body was recovered at his instance as is the prosecution case, then the [ENTITY] of Mobile Crime Team must have deposed that accused was present on the spot, when he reached there, but he did not say so, which creates a doubt about the truthfulness of the story of the prosecution.
29. Ld. defence counsel further submitted that according to the prosecution case, the strangulation was done by [ENTITY], but that [ENTITY] had not been sent to FSL for examination and analysis where the pressure sufficient enough to strangulate can be put on the neck by using that [ENTITY] and in the absence of any such report, it cannot be believed that [ENTITY] died due to strangulation with that [ENTITY]. There is no evidence on record that [ENTITY] was seized by the IO and there is also dispute as to what was the colour of [ENTITY], as PW15 stated that [ENTITY] was of white colour, but IO also stated that it was of yellow colour. So far as the landlord PW17 is concerned, he is a tutored witness. He has not placed on record any document or any receipt showing that accused along with his wife was tenant in his house. He is an introduced witness and cannot be relied upon. Ld. Counsel submitted that there is also contradiction about the time of arrest. According to PW18, accused was arrested in the presence of crime team, whereas according to [ENTITY], Crime Team and photographer, they went to the spot at about 3.30 am, but according to the record, accused was arrested at 6.00 am. This itself show that accused has been falsely implicated in this case. Ld. Counsel submitted that there is no evidence on record except [CASE NUMBER], which otherwise not admissible, as it is a statement given to the police and is inadmissible under law. Ld. Counsel submitted that chain of the circumstances is also not complete. Prosecution has miserably failed to prove and establish that accused murdered his wife [ENTITY]. Firstly, there is no ocular evidence, secondly confessional statement which is in the form of [CASE NUMBER], cannot be relied as it is a statement given to the police, thirdly, the chain of the circumstances is not complete. It is prayed that benefit of the same be given to him and he be acquitted.
30. AS pointed out by the ld. Defence counsel as well as Ld. Addl. PP, there is no eye witness in this case. It is not required under law that in every case, there shall be ocular evidence. The case can be proved even in the absence of ocular evidence on the strength of circumstantial evidence. If a case is based upon the circumstantial evidence, then certain conditions as laid down in the various judgments have to be complied with i.e. (i) all the circumstances shall be proved and established beyond doubt (ii) the circumstances so proved and established must form a complete chain (iii) the circumstances so prove and established must point towards the guilt of the accused and (iv) the circumstances so established and proved, shall be inconsistent with any hypothesis of innocence of the accused. In the present case, the following circumstances are there which the prosecution intended to prove, which also pointed towards the guilt of the accused i.e. (1) Circumstance of last seen (2) Recovery of dead body at the instance of accused (3) Complaint by the accused (4) Corroboration by medical evidence and (5) Motive. I take up the circumstances one by one. CIRCUMSTANCE OF LAST SEEN :
31. In the present case, the accused was living with his wife in the house of one [ENTITY] examined as PW17, though the ld. Defence counsel during arguments submitted that prosecution has failed to prove the existence of tenancy and the fact that the accused was living there along with his wife [ENTITY], but when accused was examined u/[SECTION] [ACT], he admitted in reply to question number 5 that he was living there along with his wife. Therefore, in my opinion, this contention of the learned defence counsel has no merits, that prosecution has failed to prove and establish the factum of tenancy because no agreement of tenancy or rent agreement has placed on record. [ENTITY] was examined as PW17 and he deposed that : " On 16.05.2007 at about 6.00 pm, when I was standing outside my house, I saw accused and his wife quarreling with each other and thereafter, I saw the accused going somewhere with his wife and when I inquired that as to where they were going, accused told me that he is going to the village. Thereafter, accused and his wife did not return to the room "
PW17 saw the deceased and the accused going together after 6.00 pm on 16.05.2007 and thereafter no body had seen [ENTITY] the wife of the accused alive. Dead body of [ENTITY] was recovered from the park at about 2.30 am. The postmortem on the dead body was conducted and the postmortem report was proved on record as Ex. PW7/A. The postmortem was conducted on 18.05.2007 at 12.45 pm. If we count backward from this, the time of death comes around 8.45 pm on 16.05.2007. From this, it is clear that [ENTITY] was died in close proximity of time, when she was lastly seen going with her husband i.e accused by PW17 and thereafter, no body had seen her alive. Accused/defence had no where explained as to where accused parted with the deceased after he was seen going along with the deceased. The accused has taken the defence that he had gone to PS to lodge the report as his wife was missing, but that does not find support from anywhere. Accused has stated in his statement u/[SECTION] [ACT] that he returned home at about 6.00 pm, but he did not find his wife there. From the neighbourhood, he came to know that she had gone somewhere and when she did not return, he went to PS to lodge the report. But there is no such crossexamination to PW17. There is nothing on record that PW17 [ENTITY] had any reason to depose falsely against accused or to falsely implicate him. There is no previous enmity between the accused and PW
17. PW17 had also stood through the test of crossexamination and I found no reason to disbelieve his testimony. By examining PW17, in my opinion, the prosecution has successfully established and proved that accused was lastly seen going along with deceased after 6.00 pm on 16.05.2007 and after that neither accused nor deceased returned. Keeping in view the above discussion, I found that prosecution had fully proved and established the fact that accused was lastly seen alive on 16.05.2007 after 6.00 pm and after that only dead body of deceased was recovered. This circumstance points towards the guilt of the accused and is inconsistent with any hypothesis of innocence of the accused.
RECOVERY OF DEAD BODY :
32. In this case, as pointed out by the Ld. Addl. PP and as per the prosecution story, accused reached the police station at about 1.10 am on 17.05.2007 and informed that he has killed his wife. So far as admissibility of this part is concerned, that I will deal with later on. On receiving this information, police recorded [CASE NUMBER] and proceeded to the spot, which the accused told in [CASE NUMBER]. Accused led the police party to a vacant plot with boundary wall near railway line and got recovered the dead body of his wife. It is mentioned in the rukka Ex. PW5/B itself that accused led the police party comprising Ins. [ENTITY] PW18 and the other team members. PW 18 has also deposed before the Court that accused [ENTITY] led the to the spot i.e. Vacant plot, near DA Block, boundary wall, Haiderpur, Delhi and he pointed out and got recovered a dead body. Pointing out memo in this respect was prepared and same is Ex. PW9/A. It is important to mention here that police was not having any information that any such dead body was lying there, though the defence has alleged that police received an information that a dead body was lying there and implicated the accused in this case, but no such record in the form of DD entry or the PCR record was placed on record by the defence to show that police received the information about the presence of dead body at that place. There is also nothing on record that Ins. [ENTITY] PW18 or the other police officers including SI [ENTITY], Ct. [ENTITY] had any reason to falsely implicate the accused. Ld. defence Counsel submitted that if the accused had got recovered the dead body as deposed by the witnesses, then SI [ENTITY] must have stated before the court that accused was present there, but PW4 stated that he does not know, if the accused present in the court was also there, which clearly shows and establishes that accused was not there and this case was later on planted upon the accused. After going through the testimony of PW4, he has nowhere stated that accused was not there. He stated that he does not know, if accused was there. On the pointing out memo, there are signatures of accused [ENTITY] and there is nothing on record to disbelieve the police witnesses SI [ENTITY], Ct. [ENTITY] and Ins. [ENTITY] on the point that dead body was recovered at the instance of the accused. No doubt this recovery was before the disclosure statement was record, but the recovery of dead body at the instance of the accused itself is a strong incriminating evidence against him. In view of the testimonies of the recovery witnesses, in my opinion, the prosecution has successfully proved and established that the accused got recovered the dead body of his wife [ENTITY]. This circumstance not only pointed towards the guilt of the accused, but is also inconsistent with any hypothesis of innocence of the accused. In this regard, I am fortified with the judgment dated 01.02.2010 passed by Hon'ble High Court in a recent case titled as [PRECEDENT], wherein it was held that : "Just as recoveries of dead bodies lying secreted pursuant to the disclosure statements of the accused, as held in the decisions reported as [PRECEDENT] [PRECEDENT] have been held to be highly incriminating evidence, logic demands that actions of an accused to secrete a dead body must be treated as equally highly incriminating evidence."
COMPLAINT BY THE ACCUSED :
33. In this case, according to the prosecution case, accused himself reached at 1.10 am at PS Shalimar Bagh and informed that he had killed his wife. On this, [CASE NUMBER] was recorded, therein he stated that he was suspecting the fidelity of his wife and on 16.05.2007, when he did not find his wife at home and on her return, when he inquired from her as to where she was, she could not give any satisfactory reply, he decided to eliminate her. He took her to the place, where the offence was committed and strangulated her with [ENTITY]. Ld. Defence counsel submitted that this information was never given by the accused. In fact, he had gone to lodge missing report of his wife, he was asked to remain there and in the meantime, the police received the information and he was falsely implicated in this case. Ld. Counsel submitted that even otherwise, this statement was given to the police and therefore, hit by [SECTION] of [ACT] and cannot be relied upon. It is pertinent to mention here that when [ENTITY] went to the PS and gave this statement, he was not an accused, he was not in police custody and there was no FIR registered against him, therefore, in my opinion, this statement is not hit by [SECTION] of [ACT]. [ENTITY] went to the PS and informed that he committed the murder of his wife by strangulating and he also told the place, where he murdered his wife. As discussed above, accused pointed out that place vide memo Ex. PW9/A and also got recovered the dead body. [CASE NUMBER], true copy of which is proved as Ex. PW5/B and photocopy of which is proved as Ex. PW5/A also bear the signatures of accused [ENTITY]. The Hon'ble Supreme Court in [ENTITY] Vs. State of M.P., AIR 1964 SC 1850, held that : "The report is not a confession of the appellant. It is not a statements made to a police officer during the course of investigation. [SECTION] of the [ACT] and [SECTION] of the [ACT] do not bar its admissibility. The report is an admission by the accused of certain facts which have a bearing on the question to be determined by the Court, viz., how and by whom the murder of [ENTITY] was committed, or whether the appellant's statement in Court denying the correctness of certain statements of the prosecution witnesses is correct or not. Admissions are admissible in evidence under [SECTION] of the Act. [SECTION] defines an admission to be a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, thereafter mentioned, in the Act. [SECTION] provides that admissions are relevant and may be proved as against a person who makes them. Illustrations (c), (d) and (e) to [SECTION] are of the circumstances in which an accused could prove his own admissions which go in his favour in view of the exceptions mentioned in [SECTION] to the provision that admissions could not be proved by the person who makes them. It is therefore clear that admissions of an accused can be proved against him." As laid down by the Hon'ble Supreme Court in [ENTITY] (supra) that a complaint given by the accused himself, who was not an accused, when the complaint was made is admissible under law. Therefore, in my opinion, this [CASE NUMBER], which the accused himself got recorded implicating himself giving the reasons for committing of offence and in pursuance to that also got recoverd the deadbody and also pointed out the place of occurrence can be relied upon. This lodging of complaint by the accused himself is a strong circumstance and evidence against him that he killed his wife and is also inconsistent with any hypothesis of innocence of the accused. CORROBORATION BY MEDICAL EVIDENCE :
34. In the present case, accused in [CASE NUMBER] Ex. PW5/B stated two facts firstly that he took his wife from the house at about 8.00 pm to the park and secondly he strangulated her with [ENTITY]. PW17 as discussed above also stated that after 6.00 pm, he saw the accused going along with his wife [ENTITY], now we look into the medical evidence i.e the postmortem report, that supports the [CASE NUMBER] the statement given by the accused. The postmortem was conducted on the dead body on 18.05.2007 at about 12.45 pm and the doctor opined that the time since death is about 40 hours. If we count it backward from 18.05.2007 at 12.45 pm, it comes to 16.05.2007 at about 8.45 pm, that is in proximity of time, when accused took his wife to the park, which according to PW17, was after 6.00 pm and according to Ex. PW5/A and Ex. PW5/B, at about 8.00 pm. The second thing is strangulation with [ENTITY]. The postmortem clearly show that [ENTITY] was killed by strangulation and the doctor has also given the opinion that cause of death is asphyxia consequent upon ligature strangulation. Ligature mark was ante mortem in nature caused by soft ligature material, possible by the [ENTITY] found around the neck. Injury no. 2 was postmortem in nature. Ligature pressure over neck is sufficient to cause death, in ordinary course of nature. From this report and testimony of PW7, it is clear that [ENTITY] died of strangulation and it was possible with the [ENTITY] which was found around her neck. Ld. defence Counsel has raised the issue that PW15 has stated that it was a white [ENTITY], whereas other two witnesses had stated that it was a yellow [ENTITY] and the [ENTITY] was not sent to FSL for opinion. In my opinion, so far as the colour of the [ENTITY] is concerned, that is immaterial, firstly because, the photographs of the dead body were taken, which are on record and in those photographs, the [ENTITY] is also visible and according to those photographs, the colour of [ENTITY] was yellow and white. Therefore, if two witnesses had stated that it was a yellow [ENTITY] and one witness has stated that it was a white [ENTITY], that does not make much difference. So far as the issue of not sending the [ENTITY] to FSL is concerned, when the doctor who conducted the postmortem had already opined that strangulation was possible with the [ENTITY], which was found around the neck of the deceased and there were no blood stains on the [ENTITY] or any other spots on the [ENTITY] warranting its chemical, biological and serological examination, I do not find any reason as to why, it should have been sent to FSL as submitted by the ld. Defence counsel. From the medical evidence, as discussed above, [ENTITY] died of strangulation by [ENTITY] at about 8.45 pm on 16.05.2007 i.e. Immediately within 45 minutes, when according to accused, he along with his wife went towards the park and in close proximity of time as deposed by PW17. This evidence also corroborates Ex. PW5/A and Ex. PW5/B, wherein accused himself had told the police that he strangulated his wife with [ENTITY]. In my opinion, the prosecution has fully established and proved this circumstance also, which pointed towards the guilt of the accused and at the same time, is inconsistent with any hypothesis of innocence of the accused.
MOTIVE :
35. Ld. Addl. PP submitted that in this case, accused had strong motive to kill his wife as he was suspecting the fidelity of his wife. On that day, as the accused did not find his wife at home on his return, his suspicion turned into belief and he got angry as his wife was not able to give any satisfactory reply to his query, this gave a strong motive to him, to eliminate her. He took her to the park and killed her by strangulating with [ENTITY]. Ld. Addl. PP submitted that this motive is proved on record in the form of Ex. PW5/A and Ex. PW5/B which is the complaint given by the accused himself and is admissible under law.
36. Ld. Defence counsel submitted that prosecution has failed to prove any motive for the accused to kill his own wife. He along with his wife was living peacefully. There was no dispute between them and as the prosecution has failed to prove the motive, the benefit be given to him and he be acquitted.
37. After hearing the arguments and in view of the judgment of the Hon'ble Supreme Court in case titled [ENTITY] Vs. State of M.P. AIR 1964 SC 1850, I found that Ex. PW5/AEx. PW5/B can be relied upon and are admissible against the accused, therein the accused himself has disclosed that he suspected that his wife is having the relations with other person and on that day, when he returned home, he did not find his wife there. He was told that his wife had gone to Sheesh Mahal, Haiderpur, he went there, but he could not find her, thereafter, he returned home. At that time, his wife was there. He made inquiries from her, but she was not able to give any satisfactory reply. The fact that there was some heated arguments on this issue is also supported by PW17, who stated that he saw the accused and his wife quarreling with each other on 16.05.2007 at about 6.00 pm. Accused got infuriated and his suspicion turned into belief that his wife is having illicit relations and that is why, he decided to kill her and executed the same. Keeping in view the evidence on record, I found that prosecution and successfully proved and established a strong motive for the accused to kill her suspecting her fidelity.
38. In my opinion, prosecution has fully proved and established that deceased was lastly seen alive in the company of the accused after about 6.00 pm on 16.05.2007. She died at about 8.45 pm as per the postmortem report Ex. PW7/A in close proximity of time, when she was lastly seen alive in the company of the accused. Accused got recovered the dead body of the deceased at around 2.00 or 2.30 am on 17.05.2007. Accused himself told to the police that he killed his wife by strangulating her with [ENTITY], which is corroborated by the medical evidence, wherein doctor opined that strangulation was possible with the [ENTITY], which was found around the neck of the deceased. All the circumstances are proved and established as discussed above and these circumstances form a complete chain, these also point towards the guilt of the accused and at the same time, are consistent with any hypothesis of the innocence of the accused. I therefore, hold the accused [ENTITY] guilty for the offence punishable u/[SECTION] [ACT] and he is convicted accordingly.
Announced in open Court on today i.e. 09.12.2010 ([ENTITY]) ADDL. SESSION JUDGE : [ENTITY] : DELHI IN THE COURT OF SH. [ENTITY] : SPECIAL JUDGE : NDPS ADDL. SESSIONS JUDGE : [ENTITY] COURTS : DELHI P.S. Shalimar Bagh U/[SECTION] [ACT] State Versus [ENTITY] S/o Sh. [ENTITY] ORDER ON THE POINT OF SENTENCE 14.12.2010 Present: Ld. Addl. PP for the State. Convict in person with Sh. [ENTITY], Adv. Arguments heard on the point of sentence.
Ld. Addl. PP for the State submitted that in our society, it is the responsibility and duty of the husband to save and protect his wife. In the present case, the husband who is duty bound to protect her, himself killed the poor lady only due to suspicion that she is not faithful to him. Ld. Addl. PP further submitted that as the person, whose duty was to protect her, himself committed the office, this case falls within the category of rarest of rare cases as he not only committed the heinous crime of murder, but he also breached the trust and confidence of the lady that she would be safe and protected in his company. Ld. Addl. PP submitted that keeping in view the gravity of offence committed by the convict, no leniency be shown and the capital punishment be awarded.
On the other hand, Ld. Counsel for the convict submitted that he is of young age, having two minor children. As he is in custody and the children are being looked after by their grandparents. He is also facing trial for the last four years. Ld. Defence counsel submitted that this case does not fall in the category of rarest of rare case, it is prayed that a lenient view may kindly be taken, otherwise children will suffer for no fault of their own.
Keeping in view all the submissions, facts and circumstances of the case and the fact that convict, who was protector of the lady not only under the law, but also under the Hindu mythology himself killed his wife, who was under the belief that she will be safe, if stays with him. The reason for doing so was just a suspicion that she is not faithful to him. He even did not think of his two minor sons, from whom, he was taking away the love, affection and care of their mother. He eliminated her by strangulating her with [ENTITY] and himself went to the police to explain his deeds. No doubt, it is very serious and grave offence, but as per the guidelines laid down in this regard by the Hon'ble Supreme Court and Hon'ble High Court for awarding capital punishment, I am of the view that this case does not fall in the category of rarest of rare cases. Keeping in view the gravity of offence, I sentence the convict [ENTITY] to life imprisonment along with a fine of Rs. 10,000/ for the offence punishable u/[SECTION] [ACT], in default of payment of fine, to undergo R.I., for one year.
Copy of judgment and copy of order on the point of sentence be given to the convict, free of cost.
File be consigned to record room.
Announced in open Court on today i.e. 14.12.2010 ([ENTITY]) ADDL. SESSION JUDGE : DELHI