Crl.A.No.861/2004 Page 1 of 41 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved On: 8th March, 2010 Judgment Delivered On: 23rd March, 2010 + CRL.A. 861/2004 SANJAY ANAND ..... Appellant Through: Mr.Rajeev Gaur Naseem, Advocate versus STATE ..... Respondent Through: Mr.M.N.Dudeja, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SURESH KAIT 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? Yes PRADEEP NANDRAJOG, J. 1. Process of criminal law was set into motion when at around 08.30 A.M. on 19.05.2002 the duty officer at PS Hari Nagar noted vide daily diary entry Ex.PW-2/B, that one Sharwan Kumar PW-2, came to the police station and stated that on 12.12.1991 the marriage of his daughter Reetu (herein after referred to as the “Deceased”) was solemnized with the appellant Sanjay Anand S/o Sh. Anand Kishor Anand R/o D-75 DTC Colony Hari Nagar as per Hindu rites and ceremonies. Crl.A.No.861/2004 Page 2 of 41 Yesterday i.e. 18.05.1992 accompanied by her husband the deceased had come to his house. The deceased was fit and fine at that time and that she returned to her matrimonial house at about 06.00 P.M. Today at about 05.30 A.M. they received a telephone call informing that the deceased has suddenly fallen sick and that her ECG is being conducted at DDU Hospital. When they reached DDU Hospital they could not find anyone there upon which they went to the matrimonial house of the deceased where he found that the deceased had died. He suspects some foul play in the death of the deceased. 2. A copy of the aforesaid DD entry was handed over to SI Ranbir Singh PW-3, for investigation, upon which accompanied by HC Joy Thomas PW-6 he proceeded to the matrimonial house of the deceased where he saw that the deceased was lying dead on a bed kept in one room of the house. He summoned another police officer and gave information to the office of the Sub Divisional Magistrate. After sometime SI Sardar Singh PW-5 and K.K. Mahajan PW-13, Sub-Divisional Magistrate, also arrived at the house. K.K. Mahajan PW-13, recorded the statements Ex.PW-1/A and Ex.PW-2/A of Ram Piari PW-1 and Sharwan Kumar PW-2 respectively; the parents of the deceased. Crl.A.No.861/2004 Page 3 of 41 3. In their statements the parents of the deceased informed that the marriage of their daughter was solemnized on 12.12.1991 and that she used to complain of being troubled by her husband. On 11th April they had to bring their daughter to their house as she was troubled in their matrimonial house and returned after a week after her in-laws assured of her well- being. That till last evening their daughter was in good health and only in the morning were they informed that her condition had deteriorated. The mother of the deceased additionally informed that the health of the husband of the deceased was not too good. 4. The FIR Ex.PW-5/A was registered on the basis of the statement Ex.PW-2/A of Sharwan Kumar, the father of the deceased. 5. SI Sardar Singh PW-5, prepared the rough site plan Ex.PW-5/B of the matrimonial house of the deceased; recording therein at point „A‟ the room where the deceased used to sleep and was found dead. 6. The body was seized and sent to the mortuary where on 20.05.2002 at about 10.00 A.M. Dr.L.T.Ramani PW-4, conducted the post-mortem and prepared the post-mortem Crl.A.No.861/2004 Page 4 of 41 report Ex.PW-4/A. The relevant portion of the post-mortem report Ex.PW-4/A of the deceased reads as under:- “.....Face is congested. There is marbling of skin of neck and shoulders....Eyes are closed, sub- conjuctival haemorrhage seen in both eyes, lips are blue..... External Injuries: 1. Bruise 1 cm x 1 cm on the lower lip rt side cutaneous surface 2. Bruise 3 cm x 2 cm on the rt angle of mandible 3. Bruise 3 cm x 2 cm on the rt side front of neck middle part 4. Faint ligature impression on the upper part front and side of neck between angle of mandible. The ligature impression 1 to 1.5 cm wide, margins are ill defined. There is no ligature mark on the back of the neck. 5. Bruise 2 cm x 2 cm on the back of left arm middle part 6. Bruise 2 cm x 2 cm on the back of rt arm middle 7. Abrasion 1 cm x 0.2 cm on the dorsum of rt foot Internal examination ....brain – congested Neck tissues: show effusion of blood in superficial layers under ligature mark and also on the rt side front of neck and rt angle of mandible beneath bruises. Hyoid bone and thyroid cartilage are however intact. There is congestion of laryngeal mucosa with evidence of sub-mucus petechiae..... Chest – Ribs are intact, lungs- congested and show subpleural petechiae.... Opinion: All injuries are antemortem. Ligature impression is caused by some soft ligature. All other injuries are caused by blunt force application. Pressure on the neck structure is sufficient to cause death in ordinary course of nature. Crl.A.No.861/2004 Page 5 of 41 Death is due to Asphyxia resulting from strangulation Time since death – About 30 hrs....” 7. Since the needle of suspicion was pointing towards the appellant, the police arrested him. The appellant was taken to DDU Hospital where Dr.V.K.Gupta PW-16, conducted the medical examination of the appellant and prepared the MLC Ex.PW-16/A recording therein that he saw a small abrasion about half centimetre with dry scab formation on right temple of the appellant and that the said injury was sustained by the appellant about two–three days prior to the conduct of his medical examination. 8. On 20.05.1992 SI Sardar Singh PW-5, obtained the letter Ex.P-1 stated to be written by the deceased to her parents from the father of the deceased and seized the same vide memo Ex.PW-5/C. Relevant would it be to note that the letter Ex.P-1 reads as under:- “Dear Mummy and Papa Ji Since the day I have been married I am not treated properly in the house and someone is always quarrelling with me. Sometimes they say something and sometimes they something due to which I am very troubled. You tell me what I should do. Your Daughter Reetu” (Translated Version) Crl.A.No.861/2004 Page 6 of 41 9. On 15.06.1992 SI Sardar Singh PW-5, obtained an application Ex.PW-5/D containing the admitted handwriting of the deceased from the father of the deceased and seized the same vide memo Ex.PW-5/D. 10. On 03.08.1992 Inspector Devinder Singh PW-12, prepared the site plan to scale Ex.PW-12/A of the matrimonial house of the deceased at the instance of ASI Ranbir Singh PW- 3. 11. The documents Ex.P-1 and Ex.PW-5/D seized during the investigation were sent to Central Forensic Science Laboratory. Vide CFSL report Ex.PX it was opined that the documents Ex.P- 1 and Ex.PW-5/D are penned by the same person. 12. Armed with the statements Ex.PW-1/A and Ex.PW-2/A of the parents of the deceased, the post-mortem report Ex.PW- 4/A of the deceased and the CFSL report Ex.PX, the police filed a charge sheet against Sanjay Anand, Nand Kishore, Chander Mohini and Rajiv @ Dimpy, the husband, father-in-law, mother- in-law and brother-in-law of the deceased respectively, accusing them of committing offences punishable under Sections 304-B and 498-A IPC read with Section 34 IPC. Accordingly, learned Trial Court framed charges against the Crl.A.No.861/2004 Page 7 of 41 aforesaid persons for having committed offences punishable under Sections 304B and 498A IPC read with Section 34 IPC. 13. The edifice of the case of the prosecution against the accused persons was built upon the testimony of the parents who deposed that their daughter was harassed on account of dowry by her in-laws and her husband as also on the fact that the death of the deceased was not a natural death and the same was within 7 years of her marriage. 14. Vide judgment dated 01.11.1994 the learned Trial Court acquitted the accused on the ground that the evidence of the parents of the deceased that the accused persons used to harass the deceased for dowry cannot be believed as the said allegations do not find a mention in their earlier statements Ex.PW-1/A and Ex.PW-2/A recorded by the Magistrate and thus the ingredients of Section 304-B IPC and „cruelty‟ as defined under clause (b) of Explanation to Section 498-A IPC are not fulfilled. Thus, notwithstanding the fact that a finding was returned that the death of the deceased was homicidal, all accused were acquitted. 15. Aggrieved by the judgment dated 01.11.1994 passed by the learned Trial Court, the father of the deceased filed a Revision Petition No.37/1995 before this Court challenging the Crl.A.No.861/2004 Page 8 of 41 acquittal of the accused. Vide order dated 27.09.2001 this Court held that the death being homicidal and in the matrimonial house of the deceased the appellant had to explain as to how his wife died and thus upholding the judgment and order dated 01.11.1994 qua the in-laws of the deceased it was directed that a charge for the offence punishable under Section 302 IPC be framed against the appellant and he be tried for said offence. The relevant portion of the order dated 27.09.2001 reads as under:- “I have heard learned counsel for the parties. Having carefully analysed the facts of the case, I am of the view that in a relationship such as those between the deceased and accused No.1, Sanjay Anand, namely the husband and wife and the wife being strangulated in the bedroom of the house, unless the husband gives a plausible explanation of his not being there, presumption under Section 114 of the Act ought to have been drawn. Further since the deceased was strangulated in the bedroom, in the marital home, special knowledge could be attributed to the husband and it was for the husband to explain as to how and under what circumstances she was strangulated. The prosecution, it appears has discharged their burden of showing the presence of the husband in the house at or around 05.30 am when he made a telephone call to the father of the deceased.” (Emphasis Supplied) 16. At the retrial, the prosecution examined 17 witnesses. 17. Ram Piari PW-1 and Sharwan Kumar PW-2, the parents of the deceased, deposed on the lines of their statements Ex.PW- Crl.A.No.861/2004 Page 9 of 41 1/A and Ex.PW-2/A recorded by the Magistrate. Additionally, Sharwan Kumar PW-2, the father of the deceased, deposed that the letter Ex.P-1 was written by the deceased to him and his wife and that he received the same on 30.04.1992 or 01.05.1992. On 18.05.1992 when the deceased came to his house she told him that the appellant is demanding a sum of Rs.1,000/-, a cooler and two pairs of clothes. It may be noted here that neither any question was put nor any suggestion was given by the defence to the witnesses regarding the telephone call received by her from the appellant in the morning of the day of the death of the deceased i.e. 19.05.1992. It may further be noted that the defence gave suggestions to the witnesses to the effect that the deceased had committed suicide as she was depressed on account of the fact that the appellant was physically weak, which suggestions were denied by the witnesses. 18. SI Ranbir Singh PW-3, deposed that on receiving the information about the death of the deceased he went to the matrimonial house of the deceased where he saw that the deceased was lying dead on a bed kept in her bedroom. SI Sardar Singh PW-5, deposed that the rough site plan Ex.PW- 5/B of the matrimonial house of the deceased was prepared by Crl.A.No.861/2004 Page 10 of 41 him. The witnesses were not subjected to any cross- examination by the defence. 19. Dr.L.T.Ramani PW-4, deposed that the post-mortem Ex.PW-4/A was prepared by him. Save and except giving a suggestion to the witness to the effect that the findings given by him in the report Ex.PW-4 are incorrect, the defence did not put any question or give any suggestion to the witness. 20. Pawan Kumar PW-9, the maternal uncle of the deceased, deposed that on one occasion the deceased accompanied by the appellant and her in-laws visited his house and told him that she is being harassed and beaten up by her in-laws. 21. In his examination under Section 313 Cr.P.C. save and except admitting the facts that the marriage between him and the deceased was solemnized on 12.12.1991; that he and the deceased visited the parental house of the deceased on 18.05.1992; that he informed the parents of the deceased over telephone that the deceased is unwell at about 05.30 A.M. on 19.05.1992 and that the deceased died in her matrimonial house, the appellant denied everything. 22. With regard to the explanation for the death of the deceased, the appellant stated as under:- Crl.A.No.861/2004 Page 11 of 41 “I am absolutely innocent and I have been falsely implicated in the present case. At the time of the incident I was working in a private firm when I reached my home in the morning at about 5.30 a.m. on the day of the incident after finishing my duty I found my wife fully unconscious on the bed. I immediately informed my in-laws.” 23. Vide judgment and order dated 17.09.2004 the learned Trial Court held the appellant guilty of committing the murder of the deceased. It has been held that in view of the facts that the prosecution was able to establish that the death of the deceased took place in her bedroom in her matrimonial house around the time when the appellant was present in the said house; that the relations between the deceased and the appellant were strained; that the appellant had misled the parents of the deceased and that the injuries which were recent in nature were found on the person of the appellant, Section 106 of Evidence Act made it incumbent upon the appellant to explain as to how the deceased died a homicidal death as also how the deceased sustained injuries found on her person and the fact that the appellant did not furnish a satisfactory explanation in respect of aforesaid circumstances is a clear pointer to the fact that the appellant committed the murder of the deceased. Vide order dated 18.09.2004 learned Trial Court sentenced the appellant to undergo imprisonment for life and pay a fine in sum of Rs.500/- for committing Crl.A.No.861/2004 Page 12 of 41 offence punishable under Section 302 IPC; in default to undergo simple imprisonment for a period of 15 days. 24. During the hearing of the present appeal, following 7 submissions were advanced by the learned counsel for the appellant:- A The first submission advanced by the learned counsel was predicated upon the post-mortem report Ex.PW-4/A of the deceased and Modi‟s Medical Jurisprudence and Toxicology. Counsel submitted that as per Modi‟s „Medical Jurisprudence and Toxicology‟ in case of strangulation the ligature mark found on the neck of the victim is continuous and encircles the neck horizontally and completely; that the ligature mark is placed low down in the neck and that the hyoid bone and thyroid cartilage are often found fractured while in case of hanging the ligature mark found on the neck of the victim is non-continuous and is interrupted at the back; that the ligature mark is placed high up in the neck and that the hyoid bone and thyroid cartilage is rarely found to be fractured. In the backdrop of aforesaid literature, counsel drew attention of the court to the post-mortem report Ex.PW-4/A of the deceased. Counsel pointed out that the same records that the ligature mark found on the neck of the deceased was placed in the upper part of the neck of the deceased; that no ligature mark Crl.A.No.861/2004 Page 13 of 41 was found on the back of the neck of the deceased and that hyoid bone and thyroid cartilage was found to be intact. Counsel submitted that the aforesaid three facts are strongly suggestive of the fact that the deceased committed suicide by hanging herself and negates the case of the prosecution that the cause of death of the deceased was strangulation. B The second submission advanced by the learned counsel for the appellant pertained to the relations between the appellant and the deceased. Counsel highlighted that the parents of the deceased stated that the deceased was happy at the time when she and the appellant visited them on 18.05.1992 in their statements Ex.PW-1/A and Ex.PW-2/A recorded by the Magistrate and that no particular allegations were levelled by the deceased against the appellant in her letter Ex.P-1. Learned counsel submitted that the fact that the appellant and the deceased together visited the parental house of the deceased a day prior showed that everything was normal. C The third submission advanced by the learned counsel for the appellant was that the conduct of the appellant in informing the parents of the deceased about the ill-health of the deceased goes a long way in suggesting that the appellant was not the perpetrator of the crime of the murder of the Crl.A.No.861/2004 Page 14 of 41 deceased. According to the counsel, had the appellant murdered the deceased, he would not have himself immediately informed the parents of the deceased about the ill-health of the deceased, on the contrary he would have attempted to conceal the death of the deceased from her parents and would have quietly cremated the deceased. D The fourth submission advanced by the learned counsel for the appellant was predicated upon the MLC Ex.PW-16/A of the appellant. It was submitted by the learned counsel that the finding returned by the learned Trial Court that the fact that the “injuries” found on the person of the appellant were recent in nature is incriminating against the appellant is contrary to the MLC Ex.PW-16/A dated 19.05.1992 which records that only one injury was found on the person of the appellant and that the same was sustained by the appellant two-three days prior to the conduct of his medical examination. E The fifth submission advanced by the learned counsel for the appellant was predicated upon the testimony of SI Ranbir Singh PW-3 and the rough site plan Ex.PW-5/B of the matrimonial house of the deceased prepared by SI Sardar Singh PW-5. Counsel submitted that this Court while adjudicating the revision petition filed by the father of the deceased as also the learned Trial Court have committed an Crl.A.No.861/2004 Page 15 of 41 illegality in holding that the deceased died in her bedroom in the matrimonial house; for the prosecution has not led any evidence establishing the same. Counsel pointed out that in reaching the conclusion that the deceased died in her bedroom in her matrimonial house, the learned Trial Court relied upon the testimony of SI Ranbir Singh PW-3, that the deceased was found dead in her bedroom and that the rough site plan Ex.PW- 5/B prepared by SI Sardar Singh PW-5, records that point „A‟ is the bedroom of the deceased where the deceased was found dead and the fact that the testimony of SI Ranbir Singh and SI Sardar Singh was not controverted by the defence. With regard to the testimony of SI Ranbir Singh, learned counsel submitted that the said testimony could not have been admitted in evidence as the same was hearsay for the reason the same was not based upon his personal knowledge but on the knowledge derived by him from some person. With regard to the site plan Ex.PW-5/B, learned counsel submitted that the site plan Ex.PW-5/B insofar it records that point A is the bedroom of the deceased is inadmissible in evidence in view of Section 162 Cr.P.C. as SI Sardar Singh would have marked point „A‟ as the bedroom of the deceased based upon the statements of the witnesses for he had no personal knowledge about the same. Counsel further submitted that an Crl.A.No.861/2004 Page 16 of 41 inadmissible piece of evidence does not become admissible on the ground that the defence did not cross-examine the witness in respect of inadmissible piece of evidence. Counsel lastly submitted that there is a material contradiction between the site plan Ex.PW-5/B and the site plan to scale Ex.PW-12/A regarding the place of death of the deceased which casts a serious cloud on the case of the prosecution that the deceased died in her bedroom in her matrimonial house. F The sixth submission advanced by the learned counsel for the appellant was predicated upon Section 106 of the Evidence Act. It was submitted by the counsel that it is settled legal position that Section 106 of Evidence Act does not abrogate the well established rule of criminal law that except in very exceptional classes of cases the burden that lies on prosecution to prove its case never shifts and that Section 106 is not intended to relieve the prosecution of that burden. It is not sufficient for the prosecution to establish facts which only give rise to a suspicion and then by reason of Section 106, throw the onus upon the accused to prove his innocence. Counsel argued that in the instant case, not even an iota of evidence was led by the prosecution to establish that the appellant is the perpetrator of the crime of the murder of the deceased and in this view of the matter the learned Trial Court Crl.A.No.861/2004 Page 17 of 41 committed an illegality in invoking Section 106 of Evidence Act to infer the guilt of the appellants. In support of the said argument, great reliance was placed by the counsel on the decision reported as Dasari Siva Prasad Reddy v The Public Prosecutor, High Court of A.P. AIR 2004 SC 4383 and Siddaiah @ Sundi v State of Karnataka JT 2002 (6) SC 477. G The last submission advanced by the learned counsel for the appellant was that it is settled legal position that in order to convict an accused on the basis of circumstantial evidence, the chain of the circumstances appearing against him should not be consistent with any other hypothesis except the guilt of the accused. Counsel pointed out that in the present case the house in question where the deceased was found dead was not only occupied by the appellant but also by the parents and the brother of the deceased. Counsel highlighted that all the aforesaid four persons used to harass the deceased as deposed by the parents of the deceased. Counsel submitted that in that view of the facts that all the four occupants of the house where the deceased was found dead had a motive and opportunity to murder the deceased, it cannot be said with certainty that which of the four occupants committed the murder of the deceased and thus the appellant is entitled to the benefit of doubt. Crl.A.No.861/2004 Page 18 of 41 25. Whether Dr.L.T.Ramani PW-4, erred in concluding that the death of the deceased was caused by strangulation? Whether the defence is correct in contending that the deceased committed suicide by hanging herself? 26. With regard to strangulation, the relevant portion contained in Modi‟s „Medical Jurisprudence and Toxicology‟ reads as under:- “STRANGULATION ...... Post-mortem Appearance Post-mortem appearances are external and internal. (i) External Appearance ..... (a) Ligature Mark Ligature mark is a well-defined and slightly depressed mark corresponding roughly to the breadth of ligature, usually situated low down in the neck below the thyroid cartilage, and encircling the neck horizontally and completely..... Besides these marks, there may be abrasions and bruises on the mouth, nose, cheeks, forehead, lower jaw or any other part of the body, if there has been a struggle. ...... (b) Appearances Due to Asphyxia ....The eyes are prominent and open. In some cases, they may be closed. The conjunctivae are congested and the pupils are dilated. Petechiae are seen in