Crl. A. No.623/05, 624-25/05, 626-27/05 & 632/05 Page 1 of 38 * IN THE HIGH COURT OF DELHI % Judgment reserved on : 06.05.2009 Judgment delivered on: 11.05.2009 CRL. APPEAL 623/2005 SUNDER @LALA …Appellant Through : Ms.Rebecca M.John, Advocate. Mr.Vishal Gosain and Mr.Bharvo K.Chauhaan, Advocates. versus STATE …Respondent Through : Mr. Pawan Sharma, Advocate. CRL. APPEAL 624-25/2005 RANDHIR SINGH & ANR. …Appellants Through : Ms.Rebecca M.John, Advocate. Mr.Vishal Gosain and Mr.Bharvo K.Chauhaan, Advocates. versus STATE …Respondent Through : Mr. Pawan Sharma, Advocate. CRL. APPEAL 626-27/2005 DHANPATI & ANR. …Appellants Through : Ms.Rebecca M.John, Advocate. Mr.Vishal Gosain and Mr.Bharvo K.Chauhaan, Advocates. versus STATE …Respondent Through : Mr. Pawan Sharma, Advocate. CRL. APPEAL 632/2005 BALBIR SINGH …Appellant Through : Ms.Rebecca M.John, Advocate. Mr.Vishal Gosain and Crl. A. No.623/05, 624-25/05, 626-27/05 & 632/05 Page 2 of 38 Mr.Bharvo K.Chauhaan, Advocates. versus STATE …Respondent Through : Mr. Pawan Sharma, Advocate. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE ARUNA SURESH 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether judgment should be reported in Digest? Yes : PRADEEP NANDRAJOG, J. 1. Article 21 of the Constitution of India guarantees that no person shall be deprived of his life or personal liberty except according to the procedure established by law. 2. Pertaining to offences under the Indian Penal Code, the various sections thereof enumerate offences contemplated by the legislature. The ingredients of the offences have to be culled out on a reading of the relevant section of the penal code. Since actus reus i.e. the doing of an act is an inseparable part of most offences, the same requires to be established by evidence. The rules of evidence have been prescribed under the Evidence Act 1872. Admissibility and relevance of evidence has to be determined, at a criminal trial, with reference to the provisions of the Evidence Act 1872. The Crl. A. No.623/05, 624-25/05, 626-27/05 & 632/05 Page 3 of 38 Code of Criminal Procedure 1973 governs the procedure to be followed at criminal trials. 3. Chapter XVIII of the Code of Criminal Procedure 1973 contains provisions relatable to trial before a Court of Sessions. As per Section 232, being a part of Chapter XVIII of the Code of Criminal Procedure 1973, if after taking the evidence of the prosecution, a Judge considers that there is no evidence that the accused committed the offence, it is the duty of the Judge to record an order of acquittal. 4. Chapter XXVII of the Code of Criminal Procedure 1973 contains provisions pertaining to the judgment to be delivered by a Court. Section 354 mandates that the judgment shall contain the points for determination and the decision thereon with reasons for the decision. 5. A reasoned decision is not one which spans pages and pages of paper. A reasoned decision is one which shows that the decision maker has come to grip with the issues raised and has dealt with the same, reflecting the process of the mind by which the conclusions have been arrived at. 6. A judgment at the end of a criminal trial which ignores the evidence which has been brought on record, and without application of mind arrives at conclusion sans a reasoning preceding the same, resulting in the conviction of the accused, is a serious violation of the right of the accused Crl. A. No.623/05, 624-25/05, 626-27/05 & 632/05 Page 4 of 38 guaranteed under Article 21 of the Constitution of India, because it results in deprivation of personal liberty without following the procedure established by law. Thus, at a trial, when the hand and the mind of a Judge turn cold, the first casualty is Article 21 of the Constitution of India and the second casualty is the oath taken by a Judge to decide every case brought before him as per procedure established by law. 7. We are pained to commence our present decision with a preface aforesaid, for the reason, at least qua accused Ranbir Singh, the father-in-law of the deceased and accused Jai Prakash, the brother-in-law of the deceased, for the offence of murdering Laxmi, learned counsel for the State Shri Pawan Sharma conceded during arguments in the appeal that there is just no evidence whatsoever to sustain their conviction. 8. We are pained to note that the learned Trial Judge has incorrectly reflected the evidence and has read statements into the testimony of PW-1, not made by her, and indeed not reflected in her deposition recorded by the Court. 9. In para 47 of the impugned decision dated 11.7.2005, the learned Trial Judge has reflected upon the testimony of Smt.Rajo PW-1 as under:- “47. I have gone through statement of PW-1 Smt.Rajjo. She has categorically stated that on 20/7/02 at about 11 am she was present in her house when her father-in-law Randhir Singh, Balbir SIngh – husband of Smt.Laxmi, Sunder Lal – her devar and his Crl. A. No.623/05, 624-25/05, 626-27/05 & 632/05 Page 5 of 38 wife – Asha, Jai Prakash and her mother-in-law – Smt.Dhanpati were all present in the house when they all took Smt.Laxmi to the first floor of the house by dragging her. Accused Sunder was also having an injection syringe and one vial in his hand. She also tried to go upstairs, but she was pushed back by her mother in law Smt.Dhanpati and she was bolted in a room on the first floor. After some time her mother in law Smt.Dhanpati opened the door of the room in which she was bolted and she was taken to the room where Smt.Laxmi had been taken. There she saw Smt.Laxmi in a sitting posture on the bed in that room and a rope was around her neck which was tied with the ceiling fan. Her mother-in-law got that rope cut with a sickle which she had given to her and she threatened her that in case she raised an alarm she would also be implicated. As she cut the rope, Smt.Laxmi fell on the bed. She could feel that Smt.Laxmi still had some life. But Smt.Laxmi was kept in the house till 4 pm. Thereafter members of her matrimonial home took Smt.Laxmi to cremation ground in the village. Somebody called the police and police arrived there before Smt.Laxmi could be cremated. From the evidence of this witness it has become clear that all the accused persons had taken Smt.Laxmi to the room on the first floor where she was given poison and then she was hanged with the help of a rope with the ceiling fan. I have also gone through the cross examination of this witness, but nothing significant could be elicited in the cross examination which could impeach the credibility of this witness.” 10. It is apparent that the learned Trial Judge has written in para 47, that in her statement Smt.Rajo PW-1 has categorically stated that on 20.7.2002 at about 11:00 AM she was present in her house when her father-in-law Randhir Singh, Balbir Singh – husband of Smt.Laxmi, Sunder Lal – her devar and his wife – Asha, Jai Prakash and her mother-in-law – Crl. A. No.623/05, 624-25/05, 626-27/05 & 632/05 Page 6 of 38 Smt.Dhanpati were all present in the house when they all took Smt.Laxmi to the first floor of the house by dragging her. 11. We reproduce, in verbatim, the examination-in-chief of Smt.Rajo PW-1. It reads as follows:- “We two sisters i.e., myself and my elder sister Laxmi were got married to two real brothers i.e., Sh.Jai Prakash and Sh.Balbir Singh respectively in the year 1990. Laxmi had got 3 children born to her and I have two children out of this marriage. For 3 years of this marriage, our matrimonial home members kept us in normal condition but thereafter, they started acts of beating and harassment. Laxmi used to live on the first floor in the matrimonial home and I used to live on the ground floor. Incident of the present case of 20.7.2002 and time was 11 am. Family members present in the house were myself, my father-in-law Sh.Ranbir Singh today present in Court, Sh.Balbir Singh husband of Mrs.Laxmi, Sh.Sunder Lal my Devar, his wife Smt.Asha and my husband Sh. Jai Prakash and my mother in law Smt.Dhanpati all these persons are present today in court as accused. In the morning on the date of incident, Laxmi got her children ready for school and the children were sent to the school. Laxmi after sending children to school came to me and started crying/weeping. Her husband, Balbir, Balbir‟s brother Sunder and his wife Asha and my mother in law Dhanpati then took Laxmi to take her to the first floor and rather they pulled her to take her upstairs by force. Accused Sunder was then having an injection syringe and one vial. I then also tried to go upstairs but then my mother in law pushed me and bolted me in a room. The room in which I was bolted was situated on the first floor which was in occupation of accused Sunder otherwise. From that room I made a telephone call at my parents house telling at my house that my sister has been killed. Thereafter, my mother in law opened the door in which I had been bolted and took me to the room where Laxmi had been taken. I saw Laxmi in a sitting posture on the bed in that room and there was a rope around her neck and that rope then tied with a ceiling fan. My Crl. A. No.623/05, 624-25/05, 626-27/05 & 632/05 Page 7 of 38 mother in law got that rope cut with a sickle which she had given to me. She threatened me that in case I raised hue and cry I also would be implicated. As I cut the rope Laxmi fell on the bed as I could sense Laxmi had some life. But then Laxmi was kept in house till 4:00 PM. Members of my matrimonial home then took Laxmi to the cremation ground in the village Deenpur PS Najafgarh, Delhi. Someone called police at No.100 and then police arrived before Laxmi was cremated. I have seen my statement which bears my thumb impression and is exhibit PW-1/A which was recorded on 27.7.2002. I had left my matrimonial home on 20.7.2002 and came to my parents house with my father. Reason for lodging my report with police on 27.7.2002 by delay of 7 days was my physique not in a proper condition as I had not been keeping well. After 15-20 days of lodging of my report on 27.7.2002, that I again visited my matrimonial home with police and I pointed out the place where I had seen Laxmi with rope around her neck and police carried out these proceedings.” 12. We have read and re-read the statement of Rajo and simply do not find anywhere stated by her that all accused dragged Laxmi to the first floor of the house. In fact, she has deposed: Her husband, Balbir, Balbir’s brother Sunder and his wife Asha and my mother in law Dhanpati then took Laxmi to take her to the first floor and rather they pulled her to take her upstairs by force. 13. It appears that so predetermined was the learned Trial Judge to convict all the accused, that in his zeal, he has read non-existing statements into the testimony of Rajo. Crl. A. No.623/05, 624-25/05, 626-27/05 & 632/05 Page 8 of 38 14. It is not in dispute that Laxmi was married to Jai Prakash and her sister Rajo was married to Balbir Singh. Both sisters were married in the same family to two brothers and used to reside in the joint family with their in-laws as also their brother-in-law Sunder whose wife Asha also used to reside in the same house i.e. the ancestral house in village Deenpur under jurisdiction of PS Najafgarh. 15. On 20.7.2002 at around 5:00 PM the body of Laxmi was seized by SI K.K.Mishra PW-14 from the cremation ground of Surya Vihar near Deenpur as he and Const. Shashi PW-9 had gone to the cremation ground as a telephonic information was received at the police station that a lady had committed suicide in village Deenpur and her relatives had taken her to the cremation ground without informing the police. 16. The dead body seized was that of Laxmi. It was sent for post-mortem to DDU Hospital where Dr.Manoj Nagpal PW-8 conducted the post-mortem on 22.7.2002, recording on the post-mortem report Ex.PW-8/A, the following external injuries:- “Presence of faint mark seen on the neck in front extending from upper part of thyroid cartlidge to the nape of the neck upward and backward. Base of the mark was congested.” Crl. A. No.623/05, 624-25/05, 626-27/05 & 632/05 Page 9 of 38 17. He preserved the viscera of the deceased and handed over the same to SI K.K.Mishra as recorded in the memo Ex.PW-14/C. He wrote on the post-mortem report that the opinion pertaining to the cause of death was kept pending to await the analysis of the viscera of the deceased. It may be noted that as per FSL report Ex.PW-14/H dated 4.9.2002, the viscera of the deceased tested positive for presence of aluminium phosphide i.e. aluminium phosphide was detected in the stomach and a piece of small intestine. From the pieces of liver, spleen and kidney of the deceased phosphide was detected. 18. Reverting back to what happened on 20.7.2002, after SI K.K.Mishra seized the dead body of Laxmi and sent the same for post-mortem, SI K.K.Mishra went to the house of the deceased and summoned a photographer who took photographs of the room in which Laxmi died. He seized a rope Ex.P-1 and a sickle Ex.P-2 which were handed over to him by Jai Prakash, husband of Rajo PW-1 i.e. the brother-in-law of the deceased and recorded the said fact in the memo Ex.PW- 14/A. 19. The next day i.e. on 21.7.2002 he recorded the statement Ex.PW-2/D-1 of Hari Singh PW-2, the translation whereof reads as under:- Crl. A. No.623/05, 624-25/05, 626-27/05 & 632/05 Page 10 of 38 “Statement of Hari Singh S/o Dalsher Singh R/o village Basodi Distt. Sonepat (Haryana) aged 52 years. I reside at the afore noted address with my wife and children and am a farmer. I have five children i.e. three daughters and two sons. My eldest daughter Laxmi is aged 30 years, Rajo is aged 25 years and the youngest daughter Usha is aged 20 years. Laxmi and Rajo were married on the same day i.e. on 1.4.1990 to Balbir Singh son of Randhir Singh and Jai Prakash son of Randhir Singh resident of village Deenpur PS Najafgarh New Delhi. Whereas Laxmi started residing in her matrimonial house in the year 1990, Rajo joined her matrimonial house after three years of her marriage. After 4 – 5 years of Laxmi‟s marriage her in- laws i.e. her mother-in-law, father-in-law, husband and her brother-in-laws named Jai Prakash and Sunder started demanding money saying that they needed the same for opening a business. Twice I gave Rs.20,000/- and Rs.20,000/- but due to my financial condition was unable to satisfy their demand. Since I am a poor farmer, whenever my daughters Laxmi and Rajo used to come to my house they would complain of ill-treatment by their parents-in-law, husbands and brothers-in-law. Especially Laxmi whose husband used to consume alcohol and under influence of alcohol used to abuse and physically assault Laxmi. About 8 – 10 days prior to Laxmi‟s death her husband had assaulted her as a result whereof her eardrum got damaged. Some information used to be given to us by our daughters over the phone and sometimes when they used to come to my house. I am fully convinced that my daughter Laxmi has been murdered by her father-in-law, mother-in-law, her husband and her brother-in-laws. I have been read over my statement which is correct.” 20. On 27.7.2002 the statement Ex.PW-1/A of Rajo was recorded by SI K.K.Mishra which reads as under:- “Statement of Rajo D/o Shri Hari Singh R/o village Basondi P.O. Basondi Village and P.O. Sonepat (Haryana) aged 25 years. Crl. A. No.623/05, 624-25/05, 626-27/05 & 632/05 Page 11 of 38 I reside at the afore-noted address. We are five brothers and sisters. On 1.4.1990 myself and my elder sister Laxmi were married as per Hindu custom to Balbir and Jai Prakash both sons of Randhir Singh residents of village Deenpur PS Najafgarh, New Delhi. Three children were born to my sister Laxmi. The eldest is a daughter Barkha aged 11 years, the second is also a daughter Navita aged 7 years, the third is a son Mohit aged 5 years. Two children, both sons, Jai Vikrant aged 7 years and the second Jaidev aged 4 years were born to me. My sister went to her matrimonial house soon after her marriage and I went to the matrimonial house after three years of my marriage. Till then we sisters had no complaint and for about two years everything was fine. After two years the attitude of our in-laws changed and they became abusive towards us and we used to be beaten. Whenever sad we used to go to our parental home and on being counseled by our parents we used to return to our matrimonial house. Balbir used to drink alcohol and under influence of alcohol used to beat my sister who used to reside on the first floor. I used to reside on the ground floor. In the morning of 20.7.2002 my sister got up and sent her children to school after dressing them in the school uniform. At that time all family members were present in the house. After sending her children to school she came and sat beside me and started crying. At that time my mother-in-law, my sister-in-law Asha, Balbir – husband of Laxmi and my brother-in-law Sunder @Lala who had an injection caught her and took her upstairs. My husband Jai Prakash and my father-in-law were sitting in the ground floor. The time was around 10:30/11:00. When these people were forcibly taking my sister upstairs and I attempted to move upstairs, my mother- in-law pushed me inside a room and locked me inside. The room belonged to my brother-in-law Sunder which had a telephone and I used the same to ring up my village and inform to pass on information to my parents that Laxmi had been murdered. At that point of time my mother-in-law opened the door of the room in which I had been bolted and took me to the adjoining room of Laxmi. I saw Laxmi in a sitting posture on the bed with a rope around her neck and tied to the ceiling fan. My mother-in-law thrust a Crl. A. No.623/05, 624-25/05, 626-27/05 & 632/05 Page 12 of 38 sickle in my hand and made me forcibly cut the rope. She told me that I should tell that Laxmi has hung herself and that I had cut the rope with the sickle. Thereafter, my mother-in-law and other family members went down. I started crying at which my mother-in-law threatened that if I cried they would implicate me. The dead body of Laxmi was kept in the house till 4:00 PM when it was taken to the cremation ground from where it was seized by the police as somebody had informed the police about my sister‟s death.” 21. The entire case of the prosecution is based on the testimony of Rajo whose presence in the house is not in dispute and who claimed to be an eye-witness to the events which took place in the matrimonial house on 20.7.2002. Needless to state, the conduct of the in-laws of the deceased of not informing the police about the death of Laxmi, which was obviously and admittedly unnatural, and their attempt to cremate the body was pressed in aid as an incriminating conduct. The FSL report which showed that Laxmi was poisoned was used as evidence to corroborate Rajo that the deceased was poisoned with a substance containing aluminium phosphide. The father, brother and mother of the deceased i.e. Laxmi were also examined to prove dowry demands and harassment to Laxmi. 22. Thus, we need not note the testimony of the police officers who were involved with the investigation. We also need not note the testimony of the doctor who conducted the Crl. A. No.623/05, 624-25/05, 626-27/05 & 632/05 Page 13 of 38 post-mortem of Laxmi as also the testimony of the scientist who tested the viscera of the deceased. 23. In para 9 above, we have reproduced para 47 of the impugned decision, wherein the learned Trial Judge has held that Rajo PW-1 has categorically deposed that all the accused persons were present in the house and all took Laxmi to the first floor of the house by dragging her. With reference to the cross-examination of Laxmi, learned Trial Judge has held: I have also gone through the cross examination of this witness, but nothing significant could be elicited in the cross examination which could impeach the credibility of this witness. 24. As noted by us herein above in paras 9 to 12 above, we just do not find any role attributed by Rajo to Randhir Singh – the father-in-law of the deceased or Jai Prakash – the brother- in-law of the deceased who also happens to be the husband of Rajo. What has been deposed to by Rajo is that in the morning all family members were present in the house and that after Laxmi sent her children to the school she came to her room and started crying, at which point of time Balbir - husband of Laxmi, Sunder and his wife Asha and her mother-in-law Dhanpati took Laxmi by force on the first floor and at that point of time Sunder was having an injection syringe and a vail Crl. A. No.623/05, 624-25/05, 626-27/05 & 632/05 Page 14 of 38 and that when she i.e. Rajo tried to go upstairs her mother-in- law pushed her and bolted the room on the first floor which was in the occupation of Sunder. Nowhere has Rajo spoken about her father-in-law and her husband doing any act at that point of time. In her further testimony, Rajo has deposed that after she made a call to her village informing that her parents be informed that Laxmi has been killed, her mother-in-law opened the room and took her to the room of Laxmi where she saw Laxmi in a sitting posture on the bed with a noose around her neck and the other end tied to the ceiling fan. Her mother- in-law made her cut the rope with a sickle and threatened her of being implicated if she cried. No role has been assigned by Rajo to her husband i.e. Jai Prakash or her father-in-law i.e. Randhir Singh even at stage two of the events narrated by her. 25. Indeed, the learned Trial Judge has read the testimony of Rajo, to say the least, in a most perverse manner. The testimony of Rajo has been twisted to suit the predetermined goal set by the Judge i.e. to convict Jai Prakash and Randhir Singh. 26. It is not out of place to note that even in her statement Ex.PW-1/A made to the police and as recorded by SI K.K.Mishra, Rajo substantially stated the same facts which she had deposed in Court. Even in said statement, translated Crl. A. No.623/05, 624-25/05, 626-27/05 & 632/05 Page 15 of 38 version whereof we have reproduced in para 20 above, she has not assigned any role to her father-in-law and her husband. She has only said that they were present in the house on the ground floor. 27. No other incriminating evidence against said two persons has been brought on record pertaining to the death of Laxmi. Qua them, the only incriminating evidence which remains to be considered would be the act of