Crl.A.468/2010 Page 1 of 35 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 7th May, 2010 Judgment Pronounced on: 11th May, 2010 + CRL.APPEAL No.468/2010 ASHOK KUMAR ..... Appellant Through: Mr.K.K.Manan, Advocate, Mr.Tarun Goomber, Advocate, Mr.Gaurav Goswami, Advocate and Mr.Nipun Bhardwaj, Advocate. Versus STATE ….Respondent Through: Mr.M.N.Dudeja, A.P.P. 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? PRADEEP NANDRAJOG, J. 1. The appellant and co-accused Laxmi (since acquitted) were charged for the offence of having entered into a criminal conspiracy to murder Raj Kumari, the wife of the appellant, and in furtherance thereof having murdered Raj Kumari between 2:00 AM to 6:00 AM on the intervening night of 18th and 19th November 2007 at the matrimonial house of Crl.A.468/2010 Page 2 of 35 the appellant and Raj Kumari; being the ground floor of House No.348/A/ Asha Ram Gali No.4, Mandawali, Faizalpur, Delhi. 2. Vide impugned judgment and order dated 18.2.2010, acquitting Laxmi, against whom the only incriminating evidence which surfaced was of being in the company of the son of the appellant when the wife of the appellant was found dead, the appellant has been convicted inasmuch as his explanation as to how his wife died has been found to be unsatisfactory and it stands proved that the wife of the appellant was brutally assaulted with a wooden paaya (wooden leg of a wooden cot) Ex.P-5 inside the only room which was the matrimonial house of the parties. The learned Trial Judge has also held that the confessional statement Ex.PW-3/D made by the appellant under Section 164 Cr.P.C. before the Metropolitan Magistrate, Delhi was voluntary, and since in the said confessional statement the appellant admitted having murdered his wife the same established the guilt. The learned Trial Judge has noted that the said confession was never retracted by the appellant and pertaining to it being non voluntary, said position was taken only by the counsel during final arguments, after evidence was led. Crl.A.468/2010 Page 3 of 35 3. The learned Trial Judge has held that the discrepancy between the rough site plan Ex.PW-14/A prepared on the day of the incident by Insp.Keshav Kumar and the site plan to scale Ex.PW-10/A, pertaining to the spot where the dead body of the deceased was lying when the police reached the scene of the crime, does not demolish the case of the prosecution; noting that there were lapses on the part of the investigating officer while conducting investigation, holding the same to be innocuous omissions and hence inconsequential, the learned Trial Judge has held that the same have to be ignored. Holding that such omissions which amount to contradictions and hence militate against the meat or core of the case of the prosecution are alone material. 4. DD N.6-A, Ex.PW-2/A, proved through the mouth of the author thereof, ASI Nand Kishore PW-2, stands recorded at 5:48 AM on 19.11.2009 at PS Mandawali, containing the information that a lady has been murdered at House No.348A/7 Asha Ram Gali, Subedar Chowk, Mandawali. It be noted that said testimony of ASI Nand Kishore has not been challenged when he was cross-examined. 5. A copy of said DD entry was handed over to SI Hari Ram PW-11 who left the police station accompanied by Const.Shri Pal PW-13. As deposed to by Insp.Keshav Kumar Crl.A.468/2010 Page 4 of 35 PW-14, even he received the information. All 3 police officers, as deposed to by them, reached House No.348A/7 Asha Ram Gali No.4, Mandawali and saw the dead body of a lady whose name was disclosed to them as Raj Kumari by another lady named Raj Bala PW-4, the sister of Raj Kumari. The dead body was lying with its face up and hand stretched out on the street just opposite the house in question, with blood all around the body. They noted trail of blood from the street to inside the solitary room in the house; the trail passing through an open court yard in between the room and the street. Crime team was summoned. HC Subhash PW-12, a photographer was a part of the mobile crime team, and as deposed to by him, he took 15 photographs Ex.PW-12/A-1 to Ex.PW-12/A-15 from different angles; negatives whereof were Ex.PW-12/A-16 to Ex.PW-12/A-30, as deposed to by HC Subhash. He was not cross-examined by learned counsel for both accused. 6. 3 photographs show the dead body of Raj Kumari, with face upward and hands stretched, lying in a pool of blood on the street which appears to be about 5 feet wide; for the reason the outstretched hands of the deceased touch the two edges of the street and hence we can fathom the span. Photograph Ex.PW-12/A-14 shows a continuous trail of blood on the floor of a room and the open courtyard abutting the Crl.A.468/2010 Page 5 of 35 room. The remaining photographs show a trail of blood in the room as also a blood stained paaya on one bed and a blood stained pillow, blood stained towel and a blood stained sheet on a second bed which is perpendicularly placed to be bed on which the paaya is lying. 7. There were various other blood stained articles. As entered in the seizure memo Ex.PW-4/C, 6 exhibits, a cotton red & white coloured printed sheet stained with blood and a mat stained with blood (Ex.P-4 collectively). 2 pillows stained with blood (Ex.P-2 collectively), a light coloured towel having blue lining, stained with blood, and a T-shirt of a child stained with blood (Ex.P-3 collectively) were seized. The wooden paaya Ex.P-5 having blood on one side was seized as entered in the memo Ex.PW-4/B. Both memos have been signed by Insp.Keshav Kumar PW-14 as the author thereof and bear the signatures of Raj Bala, SI Hari Ram and Const.Shri Pal, as witnesses to the recovery. As deposed to by Insp.Keshav Kumar, he prepared the rough site plan Ex.PW-14/A showing therein the position of the two beds inside the room from where he lifted various exhibits as also the place where the dead body of Raj Kumari was lying. He marked the track of the trail of blood leading from the bed wherefrom the two blood stained pillows and the blood stained bed sheets and Crl.A.468/2010 Page 6 of 35 blood stained towel as also the blood stained T-shirt of a child were picked up by him till where dead body of Raj Kumari was lying. He recorded therein that the room was approximately 10‟ x 15‟. He further indicated the position of the courtyard, which occupies the mid half segment of the front wall of the room and where a door stands affixed being the place of entry to the room with a store and a kitchen on the western side of the open courtyard and a bath-cum-toilet on the eastern boundary of the courtyard. Adjoining the bath-cum-toilet, he showed the place where staircase commences leading up to the first and the second floor in the building. He dutifully recorded that the building was a 3 storeyed building. As entered in the memo Ex.PW-11/C, he lifted blood sample and blood control earth from the spot and seized the same. 8. Raj Bala PW-4, the sister of Raj Kumari volunteered a statement which was recorded; being Ex.PW-4/A by Insp.Keshav Kumar, in which she informed that she resides at House No.262/C/568 Bharat Ram Akhada Gali, Mandawali, Faizalpur since last 12 years and that her sister Raj Kumari aged 28 years was married to the appellant about 4 years back. Ashok developed illicit relationship with Laxmi and he used to give money to Laxmi. Due to this there used to be tension between Ashok and her sister and that after Crl.A.468/2010 Page 7 of 35 consuming alcohol Ashok used to quarrel with her sister. Yesterday at 9:00 AM in the morning she had visited the house of her sister when she found Ashok drunk. She counseled Ashok that he was the father of a child and very soon would be the father of another child and hence he should live a family live. Today morning at around 5:30 AM, Raj Kumar, a tailor by profession, who resides in the neighbourhood of Ashok came to her and informed her that her sister Raj Kumari has been injured and she should see her. She reached the house of her sister and saw her body smeared with blood on the street and she rang up the police control room. Thereafter the police came. That Ashok was at the spot and was attempting to flee but people in the neighbourhood had caught him. That she suspects that Ashok has murdered her sister and that the room and the bed is smeared with blood. She desires action be taken against Ashok and Laxmi. 9. Making an endorsement Ex.PW-14/A beneath Raj Bala‟s statement Ex.PW-4/A, as deposed to by Insp.Keshav Kumar PW 14 he sent the statement and the investigation for FIR to be registered, recording therein that the teherir has been dispatched from the spot at 7:50 AM on 19.11.2007. Crl.A.468/2010 Page 8 of 35 10. As deposed to by ASI Nand Kishore PW-2, he received the teherir from Const. Shri Pal and registered the FIR Ex.PW-2/B. 11. Appellant Ashok Kumar was apprehended at the spot itself and his disclosure statement Ex.PW-11/A was recorded, probably at the police station without his being formally arrested. The pair of chappals Ex.P-6 which he was wearing as also pant and the shirt, Ex.P-7 collectively which he was wearing were seized as entered in the memo Ex.PW-11/B. He was formally arrested, as recorded in the arrest memo Ex.PW-14/C at 3:45 PM. 12. As claimed by the prosecution, Ashok volunteered to make a confessional statement before the Magistrate and for this purpose Insp.Keshav Kumar filed the application Ex.PW-14/L on 19.11.2007 itself before the Duty Magistrate Karkardooma Courts for recording Ashok Kumar‟s statements under Section 164 Cr.P.C. It appears that the said application was actually filed on 20.11.2007 for the reason the Reader of the learned Duty Magistrate wrote thereon that since the Magistrate had gone to attend computer training, the application be put up before the learned Link Magistrate on 22.11.2007. The said writing is Ex.PW-3/B. Another application being Ex.PW-14/K dated 20.11.2007 was also filed Crl.A.468/2010 Page 9 of 35 praying once again that Ashok‟s statement under Section 164 Cr.P.C. be recorded on which the learned Metropolitan Magistrate passed the order Ex.PW-3/A that it may be put up before the Link Magistrate today itself. 13. There is nothing on record as to what happened before the Link Magistrate on 20.11.2007. 14. Another application Ex.PW-4/M dated 22.11.2007 was filed in the Court of the Link Magistrate by Insp.Keshav Kumar on which an order Ex.PW-3/C was passed by Shri Anand Swaroop Agarwal, Metropolitan Magistrate, Delhi recording that Ashok was produced before him at 2:40 PM on 22.11.2007 and he was giving time till 3:15 PM to Ashok so that he could think over the matter. He directed the police officers to leave the Court. He wrote that only the Court staff and the Judge would remain present with Ashok. Thereafter, at 3:15 PM, Shri Anand Swaroop Agarwal, Metropolitan Magistrate, Delhi recorded the confessional statement Ex.PW-3/D of Ashok Kumar. The same reads as under:- “In the night of Sunday this month after 12:00 O‟clock in between 2:00 AM – 3:00 AM on 19/11/07, I had hit three times a wooden „paaya‟ of the cot on the head of my wife Smt.Raj Kumari. A few days before the incident I had a quarrel with my wife on account of my late coming from my native village. But on the date of incident, there was no quarrel between myself and my wife. I used to reside with my wife and a child, Mt.Ankit Kumar (Anand Kumar) aged about 2½ years. Crl.A.468/2010 Page 10 of 35 Further my wife was pregnant with a baby of 7/8 months. On the date of the incident I had slept while watching the TV. Even my wife Smt.Raj Kumari had slept while feeding baby Mt.Ankit Kumar (Anand Kumar). At about 1:45 – 2:00 AM (night) on 19/11/07 I had demanded food from my wife because I am in the habit of taking the dinner at late night hours. I usually use to take dinner after 12:00 O‟clock in the night. On the date of the incident I had demanded the food at about 1:45 AM – 2:00 AM because I had slept i.e. ankh lag gayi thi on the said date while watching the TV. My wife did not got up despite my repeated requests. Even my demand for the tea was not fulfilled by my wife. On this account, I got angry and I had hit my wife on her head with a wooden paaya of a cot but I had not hit on any other part of the body. I had hit my wife on her head with a wooden paaya of a cot lightly two times and with some force third time. I never intended to cause death to my wife. When my wife was feeling pain and blood had come out of the head on account of injury given by me, I got afraid. Thereafter, I had asked for help from Mr.Dalip Pandey @Rinku, who is residing as a tenant at first floor of my house but he refused to give any help. Thereafter I had gone to bring one three wheeler for taking my wife to hospital: at that point of time I had given my child Mt.Ankit Kumar (Anand Kumar) to my neighbour/relative namely Ms.Laxmi, w/o Shri Ved Prakash R/o Saket Block, Mandawali. I had also asked for help from Pappu Nigam S/o no known R/o in the neighbourhood of above said Ms.Laxmi but he did not give any help to me. Thereafter I had brought one TSR but he refused to carry my wife to the hospital. Thereafter I felt helpless and I did nothing. Thereafter at about 7:00 AM in the morning police came at the spot at the call made by Mr.Dalip Pandey. Thereafter relatives of my wife arrived at my house including my sister-in-law/Sali, Raj Bala @ Rajjo.” 15. The learned Magistrate has recorded an order of even date to the fact that he has explained to Ashok Kumar that he was not bound to make any confession and if he did so Crl.A.468/2010 Page 11 of 35 it would be treated as substantive evidence against him. He recorded in the order that he has questioned Ashok Kumar whether he had any fear, coercion or influence of any type or from any corner to compel him to make the confession to which Ashok Kumar responded that he was under no such pressure and was desirous of making a voluntary confession. 16. In the meanwhile, the dead body of Raj Kumari which had been seized in the morning of 19.11.2007 was sent to the mortuary of Lal Bahadur Shastri Hospital Khichdipur where as recorded on Ex.PW-14/H and Ex.PW-14/J, dead body of Raj Kumari was identified in the mortuary by Ram Prakash, the brother of Ashok Kumar and Smt.Shanti, mother of Raj Kumari. 17. Dr.Vinay Kumar Singh PW-16 posted at the mortuary of Lal Bahadur Shastri Hospital conducted post- mortem on the dead body of Raj Kumari on 20.11.2007, commencing the post-mortem at 11:45 AM and prepared the post-mortem report Ex.PW-16/A recording therein that he had received the inquest papers at 11:30 AM on 20.11.2007 and that the dead body was brought at the mortuary at 9:45 AM on 19.11.2007, but surprisingly inspite of noting the fact that the dead body had been in the mortuary for 25 hours and 45 minutes prior to his commencing the post-mortem thereon, Crl.A.468/2010 Page 12 of 35 wrote on the post-mortem report that in his opinion the probable time of the death was 8 hours to 16 hours prior to the time he commenced the post-mortem on the dead body of Raj Kumari. He noted 9 injuries on the dead body; being as under:- “1. Lacerated wounds of 7 x 5 cm, bone deep underneath bone was fractured and brain mater was visible, present 4 cm above left ear over left fronto partial reason margins was irregular. 2. Lacerated wound of 3 x 2 cm, bone deep margin irregular present over left frontal region, underneath bone was fractured, 3 cm above medial end of eye brow. 3. Abrasion of 2 x 1 cm present just above lateral end of left eye brow. 4. Abrasion 2 x 2 cm present over tip of left shoulder. 5. Bruise, red in colour of 3 x 2 cm present over thenar aspect of left wrist. 6. Abrasion of 2.5 x 1.5 cm present over back of left hand 2 cm away from left middle finger. 7. Abrasion of 1.5 x .5 cm present over back of left index finger 2 cm away from tip over back side. 8. Bruise red in colour 2 x 2 cm present over back of left hand 4 cm away from middle knucle. 9. Abrasion 1.5 x 0.8 cm present over outer side of left side 3 cm away tip of little finger. On internal examination in neck, chest and abdomen nothing abnormality was detected and in uterus female fetus was sound of body length 43 cm and 1700 grams weight. In head multiple compound Crl.A.468/2010 Page 13 of 35 fracture of skull of left side with brain mater lacerated, meninges torn with internal cranial haemorrhages.” 18. He wrote that brain mater was coming out of the skull which was fractured and that cause of death was cranio cerebral damage to the brain consequent upon blunt force impact to the head. He opined that all injuries were ante mortem in nature and death would have been caused in the ordinary course of nature. He opined that the death was homicidal. 19. We note that he wrote on the post-mortem report that 2 glass bangles and 3 plastic bangles on the right hand and 3 glass bangles on the left hand were on the person of the dead body. 20. We note that the paaya Ex.P-5 was not sent to Dr.Vinay Kumar to list his opinion, whether the 2 fatal head injuries could be caused by the same. We further note that when Dr.Vinay Kumar Singh PW-6 proved the report Ex.PW- 16/A, he was not cross-examined as to how can he opine that the death was homicidal. We are writing said fact for the reason that there may be a possibility of the injuries being the result of a person falling from a height. We are recording this observation for the reason, as would be noted by us hereinafter, the defence taken by Ashok Kumar was that his Crl.A.468/2010 Page 14 of 35 wife suffered the injuries when she fell from the roof of the house. 21. We are eschewing reference to the various memos pertaining to Laxmi, the co-accused of the appellant, who has been since acquitted. 22. Being a little unconventional, the object being to facilitate the issue being focused straightway, when incriminating circumstances were put to the appellant as he was examined under Section 313 Cr.P.C., conscious of the fact that he had to explain the injuries on his wife since his presence at the spot was not disputed by him, he said:- “I am innocent and falsely implicated in this case. I have not killed my wife. She had sustained injuries after falling down from the roof. Rajbala got the present case falsely slapped upon me so as to grab my property as I am in Jail since the date of the incident. I do not know the fate of my property. I had no illicit relationship with Laxmi nor had any acquaintance with her. I was taken to police station immediately after arrival of police to my house and all the proceedings were fabricated by the police in my absence. I had not shown any intention to Insp.Keshav to get my statement recorded before the Court. I was under trauma and sorrow due to untimely death of my wife. I am not aware about my son also. My wife had died accidently and I am innocent.” 23. We may note that in respect of the various exhibits which were seized from his house and the photographs which were taken he replied that he did not know. Pertaining to his statement Ex.PW-3/D recorded under Section 164 Cr.P.C., Crl.A.468/2010 Page 15 of 35 which was a confessional statement he stated that being under trauma due to the untimely death of his wife, he was not capable of making any statement. Relevant would it be to note that even at this stage he did not retract his confessional statement. 24. Now, the photographs referred to above show that dead body of Raj Kumari was lying on the street. The explanation of Ashok as to how his wife died is that she fell from the roof. 25. This takes us straight to the question: Whether the deceased died when she fell on the street from the roof of her house or was it that she was injured inside her matrimonial house and the body dragged out on to the street. 26. The close up photographs of the dead body of the deceased, which as noted above show the face up and arms outstretched, show the glass and plastic bangles on her wrists. All of them are intact. We can understand the plastic bangles being intact but fail to comprehend as to how can the glass bangles which we can clearly see on the wrist of the dead body of the deceased in the photographs, being intact. Not one has been broken. The photographs do not show any pieces of broken glass bangles around the dead body. Crl.A.468/2010 Page 16 of 35 27. Insp.Keshav Kumar PW-14 who has deposed that he drew the sketch of the rough site plan Ex.PW-14/A has not been questioned as regards its contents, and as noted above, on the said rough site plan he has noted that the building was a 3 storeyed building. If the deceased fell from the roof, it had to be from the roof of the 3rd floor and if this be so, there is no way that the glass bangles on her wrists would not have been smashed to pieces. 28. This disproves the explanation given by Ashok Kumar as to the cause of the death of his wife. 29. We have noted hereinabove that the information of a lady being killed in House No.348/7 Asha Ram Gali No.4, Mandawali, Faizalpur, Delhi was passed on to the police station at 5:48 AM. Raj Bala PW-4 has deposed in complete sync with her statement Ex.PW-4/A and additionally to the various exhibits being seized at the spot. 30. Raj Kumar, the person whom Raj Bala claims as the one who informed her that her sister was injured has deposed as PW-5 and has corroborated the fact that after he saw Raj Kumari lying on the street at 4:05 AM on 19.11.2007 he went to Raj Bala‟s house who lived a little distance away and passed on said information to Raj Bala. It is apparent that by 4:05 AM, Raj Kumari‟s dead body was on the street outside her house. Crl.A.468/2010 Page 17 of 35 31. It is important to note that it was the 19th day of the month of November in the year 2007. In the city of Delhi by 19th November each year it is pitch dark. By 19th November dawn breaks not before 6:15 AM – 6:30 AM. The sun comes out by 7:15 AM – 7:30 AM. What could have led Raj Kumari to the roof of the building at such an unearthly hour remains a mystery, and