Crl. A. No.241/2001 Page 1 of 42 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 2nd September, 2009 Judgment Delivered on: 7th September, 2009 + CRL.A.241/2001 MIRTUNJAY TIWARI ..... Appellant Through: Mr.K.K.Sareen with Mr.Rajeev Ranjan & Mr.Sunil Kumar, Advts. versus STATE ..... Respondent Through: Ms. Richa Kapoor, APP. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR, J. 1. D.D.No.25A Ex.PW-10/B was recorded in Police Station Connaught Place to the effect that information had been received from lady Const.Shashi Sharma PW-27 posted in the PCR Division that a foul smell was emanating from house No.16-E, Feroz Shah Road, New Delhi. This D.D. was marked to ASI Randhir PW-18 who along with Const. Dayanand Crl. A. No.241/2001 Page 2 of 42 reached the spot where he was joined by Inspector Niranjan Singh PW-30, SI V.K. Sharma and H.C. Shahabuddin. Deepanker Pandey PW-16 resident of 16-C Feroz Shah Road who had also noted this foul smell was also present. This house had been allotted to Sh.Ash Mohd. Ansari, a member of Parliament, and this has surfaced in the testimony of Rakesh Vij PW-9, Assistant Engineer, PWD, who had produced the letter of allotment Ex.PW-9/A. The house was found locked from both sides. The lock of the back entrance was broken open; the door of the room from where the foul smell was emanating was forcibly broken open; a dead body of a woman lying upside down was noted on a double bed, the dead body was de-composed and was wearing a printed saree and a blouse. The photographer H.C. Harchand PW-22 was summoned, who took 13 photographs of the scene of crime; negatives of which are Exs.PW-22/A1 to A13 and the positives of which are Exs.PW-22/A14 to A26. 2. Since it appeared to be a case of murder, endorsement on the DD was made by PW-30 which was sent through H.C.George Messey for the registration of the FIR Ex.PW-13/B under Section 302 IPC. The special report was Crl. A. No.241/2001 Page 3 of 42 sent through Const.Rajender Singh PW-24 to the senior Officers and the Area Magistrate on 31.5.1995. 3. On inspection of the crime scene, some dry fruits, a knife, a spoon, a tumbler, a muffler, a underwear and some blood stains were noted on the head side of the double bed; a diary was also found on the spot. All the aforestated articles were seized, sealed and taken into possession. The blood stained wooden portion of the bed was also seized after cutting a piece from the side of the head. The dead body was sent through PW-18 to the mortuary of the R.M.L. Hospital for preservation as the same had not yet been identified. At the time of the removal of the dead body a wrist watch had fallen from the brassiere which was taken into possession vide memo Ex.PW-10/B. The rough site plan Ex.PW-8/A was prepared at the pointing out of Anil Arora; thereafter site plan to scale Ex.PW-14/A was drafted by Mukesh PW-14. 4. The Investigating Officer recorded the statements of various witnesses including Vishwa Nath PW-1, Aas Mohd. Ansari PW-2, Parvez Ahmed PW-3, Vijay Kumar PW-6, Anil Arora PW-8, Ved Pal PW-12, Deepanker Pandey PW-16 which unfolded that on 25.5.1995 the accused Mirtunjay Tiwari, had Crl. A. No.241/2001 Page 4 of 42 gone with his deceased wife Raj Kumari, to E-16, Feroz Shah Road, the house of PW-2, which he often used to visit for the purpose of getting employment for himself. On that day also he had gone to his house hoping that he would accede to his request and get him a job. At about 8.30 PM PW-2 gave money to the accused to bring some food and ice-cream; he i.e. the accused came back after purchasing the ice-cream at about 10.00 PM. PW-2 was in the room where the television and V.C.R. were on; his wife was also in the room; the room was bolted from inside. On repeated knocking when PW-2 did not open the door, the accused started pounding it which led to an altercation between the husband and wife and so much so that when PW-2 intervened, his wrist watch broke and fell down; in this process shirt of the accused also tore. This watch was lifted by the deceased Raj Kumari. Accused was pacified; thereafter the accused and his wife retired for the night in the adjoining room. This verbal duel between the husband and wife had been witnessed by Ved Pal PW-12 who was chowkidar posted at 16-B, Feroz Shah Road as also by H.C. Madan Lal PW-17 who was the security guard posted in the adjoining house of PW-16 at 16-C, Feroz Shah Road, New Delhi. Crl. A. No.241/2001 Page 5 of 42 5. PW-6, working in the canteen of the Parliament House, was the person who had arranged the television and V.C.R. at the residence of PW-2 on 25.5.1995. For this purpose Vijay Kumar had requested Anil Arora PW-8, which had accordingly been installed on 25.5.1995. On the following day i.e. on 26.5.1995, this television and V.C.R. had been taken back by PW-8. 6. The further version of the prosecution is that on 26.5.1995 accused again approached PW-2 hoping to get a job and they i.e. the accused and PW-2 proceeded to Rail Bhawan. Since the shirt of the accused had been torn on the previous night, he borrowed the shirt of PW-2. On their way back from Rail Bhawan they purchased some fruits from Janpath from the stall of Gaya Prasad PW-4. On reaching the house, PW-2 requested PW-3 to get a three-wheeler scooter as he i.e. PW-2 had to go to Gorakhpur and Bihar as the results of his bye- elections were expected. At the time of leaving his house PW- 2 in the presence of PW-3 gave the keys of his visitor room to the accused. 7. From the version of these witnesses, the role of the accused as the possible culprit had surfaced. He was arrested Crl. A. No.241/2001 Page 6 of 42 on 31.5.1995. He made a disclosure Ex.PW-28/A and pursuant to his disclosure statement he got a blood stained knife and a shirt recovered from under the water tank in the rear portion of the house where the incident had occurred. The accused further led the police team to his own residence at Katna Pahari where in the presence of his landlord Om Prakash PW- 11, he got the blood stained shirt, which he had borrowed from PW-2, recovered. He also produced a key of the Harison lock which was purported to be the key of the visitors room which PW-2 had handed over to the accused on 26.5.1995 when he had left for Gorakhpur. 8. The father of the deceased Ved Pal has been examined as PW-1. As per his version his son-in-law the accused often used to visit PW-2 in the hope of getting a job. On 25.5.1995 and 26.5.1995 his daughter Raj Kumari and the accused did not return home; on inquiry from the accused on 27.5.1995 he was informed that his daughter had gone to Bihar with PW-2. 9. Post-mortem on the deceased was conducted on 31.5.1995 by Dr.G.K.Sharma PW-10 who had opined the cause of death as intracranial haemorrhage from fracture of skull Crl. A. No.241/2001 Page 7 of 42 under legion no.1 consequent upon blunt force of impact; fracture of skull and intracranial haemorrhage being ante- mortem in nature. Time since death was reported to be four to six days i.e. relating back to the intervening night of 25.5.1995 to 26.5.1995. The vaginal swab of the patient had been preserved for ascertaining if any sexual act had been committed; this has been testified by PW-10 on oath. 10. In his statement under Section 313 of the Cr. P.C., the accused has admitted that Raj Kumari, the deceased was married to him. On 25.5.1995 they had visited the house of PW-2; the accused had brought ice-cream at about 10.30 PM on the direction of PW-2; the door of the room was opened after repeated knocking; Raj Kumari was in the room with PW- 2 at that time; the television and the V.C.R. were on. As per the accused a verbal duel took place between him and PW-2; he denied that he retired in the adjoining room with his wife after this incident; as per his version, he left the house of PW- 2 as PW-2 had undertaken to send his wife with his sister to Bihar to attend the marriage of her sister-in-law. Defence of the accused which is borne out from this statement as also reiterated in the version of the witness DW-1 Paras Nath Tiwari Crl. A. No.241/2001 Page 8 of 42 father of the accused is to the effect that on 26.5.1995 the accused learnt that PW-2 had not gone to Gorakhpur and he went to his house to check; at about 4.30 PM he saw PW-2 leaving in a TSR and he was told that his wife had already left for Bihar. On 30.5.1995 when DW-1 returned from his village he i.e. the accused was informed that Raj Kumari had not gone to the village to attend the marriage of her sister-in-law; the accused suspected foul play on the part of PW-2 and he informed his father-in-law Vishwa Nath; before they could lodge the report, on 31.5.1995 the accused was forcibly lifted from his house, arrested and falsely implicated in the present case. 11. The trial Judge had vide the impugned judgment convicted the accused for the offence under Section 302 IPC. This was admittedly a case of circumstantial evidence. The following circumstances had been relied upon to sustain his conviction. i. Last seen theory i.e. the accused and the deceased having been last seen in the company of one another till 4.30 PM on 26.5.1995; reliance has been placed on the versions of PW-2, PW-3 and PW- Crl. A. No.241/2001 Page 9 of 42 1 to establish this circumstance. ii. Recovery by the accused on 31.5.1995 of a key of Harison lock which was the purported key of the visitors room which PW-2 had handed over to the accused at the time when he left for Gorakhpur; substantiated by the report of the CFSL that this key belonged to the lock which was used to lock the visitors room of 16-E, Feroz Shah Road. iii. Recovery by the accused on 31.5.1995 of a torn blood stained shirt and a knife from beneath the water tank behind 16-E, Feroz Shah Road which contained blood group ‘A’ which was also the blood group of the deceased. iv. Recovery by the accused on 02.6.1995 of a blood stained shirt from his tenanted house which was the purported shirt given by PW-2 to the accused; it was stained with blood group ‘A’ which was the blood group of the deceased. v. Recovery from the spot i.e. on 30.5.1995 of a diary in the handwriting of the accused containing his address which had led the police party to Crl. A. No.241/2001 Page 10 of 42 initiate investigation against the accused. vi. Report of PW-13 the CFSL Expert who had opined that Q1,Q2 and Q3 i.e. the applications written by the accused to the SHO were in his writing. vii. Motive of the accused to kill his wife as he had suspected her to be having an illicit relationship with PW-2. 12. All these factors had collectively been considered by the trial Judge to return a finding of guilt against the accused. 13. On behalf of the accused, it has been urged that before addressing the court on the inconsistencies and contradictions which have appeared in the version of PW-2 vis- a-vis the testimony of other witnesses of the prosecution, the circumstance of the accused being a humble man hailing from a low socio-economic background, being pitted against an influential and powerful politician i.e. PW-2 being a member of the Parliament, has to be kept in mind. It is submitted that it has come on record in the testimony of Inspector Niranjan Singh PW-30 that PW-2 had surfaced in the scene on Crl. A. No.241/2001 Page 11 of 42 04.6.1995 when he had straightway been admitted to the R.M.L. Hospital and the anticipatory bail application filed by his advocate had not been opposed by Inspector Niranjan Singh, who had granted him a clean chit without any interrogation or query when he was probably the most important person to throw light on this controversy and the circumstances and the manner in which death of Raj Kumari had occurred keeping in view the fact that the dead body had been recovered from bed room of PW-2; yet the Investigating Officer chose not to oppose his bail application. It is urged that the statement of PW-2 was recorded as a witness only on 14.6.1995 after a long delay, giving him enough time to manipulate a strategy as per his convenience. Attention has also been drawn to the testimony of PW-6 wherein the Presiding Officer of the Court had noted that PW-6 had been accompanied by certain persons who were keeping a watch on the court proceedings and on specific query it had transpired that these persons are watching the court proceedings on every hearing on behalf of Vishwa Nath, the father of the deceased. It is submitted that the father of the deceased is a poor man and not even a resident of Delhi; he is not in a position to engage any counsel Crl. A. No.241/2001 Page 12 of 42 or solicit the services of persons who could keep a paravi on the proceedings; all this was being done at the behest of PW-2. It is submitted that it is in this background that the court must appreciate the arguments advanced by the defence counsel. Learned defence counsel has drawn the attention of this court to the version of PW-12 and PW-17 who had apparently witnessed the verbal altercation between the accused and his wife Raj Kumari. It is submitted that as per the version of aforesaid witnesses, this argument was not between the husband and wife but it was an argument between the accused and PW-2 and, in fact, PW-12 and PW-17 who were both present there at that time do not whisper a word about the presence of Raj Kumari as she was inside the room and had not come out in spite of repeated knocking on the door by her husband. It is submitted that the accused was in regular employment with a private firm and this has come in the testimony of DW-1 and is also evident from the letters Ex.DW- 1/1 and Ex.DW-1/2 written by his employer; there was no occasion on his part to visit the house of PW-2 for the purpose of employment; it is a concocted version; the real culprit is PW- 2 himself. It is submitted that PW-2 being a powerful and Crl. A. No.241/2001 Page 13 of 42 influential politician and hailing from the same village as the family of his wife, it was under his pressure that his father-in- law, Vishwa Nath, PW-1 has deposed against him. It is argued that this is a clear case where the investigation has been carried out only at the behest and as per the convenience and directions of PW-2; there is no reason as to why the accused would have taken the life of his wife; there is, in fact, every reason why PW-2 would have wanted to get rid of Raj Kumari. He had physically exploited her and on the previous night i.e. on 25.5.1995 PW-2 had been greatly annoyed at the reaction of the accused and his daring to accost him which had led to a verbal abuse between the two which became the reason to teach a lesson to the accused and thus to implicate him for an offence which had actually been committed by PW-2. It is submitted that recovery of the blood stained shirt and knife from the water tank from the rear of the house is doubtful not having been witnessed by any public person; the torn blood stained shirt purported to be of PW-2 recovered from the house of the accused is also doubtful. The key of the lock purported to have been handed over by the accused is again suspicious as the personal search memo of the accused Crl. A. No.241/2001 Page 14 of 42 Ex.PW-28/J shows that no key was found on his personal search; this document is dated 31.5.1995; attention has also been drawn to the seizure memo of key Ex.PW-28/B which is also of the same day; it is argued that if the key was not recovered from the personal search of the accused, how it could be handed over to him subsequently; from where and under what circumstances, has not been explained by the prosecution. Accused had been forced to write the applications Q1, Q2 and Q3 when he was in police custody; no cognizance can be taken of the same; motive has also not been proved. 14. We have perused the record and noted the submission made by the learned defence counsel. 15. The circumstance of the accused having been last seen in the company of the deceased has been reflected in the versions of PW-2, PW-3 and PW-1. Aash Mohd. Ansari PW-2 is, in fact, the star witness of the prosecution and the version of the prosecution is hinged, by and large on his testimony. He had been allotted house E-16, Feroz Shah Road, New Delhi in his capacity as a Member of Parliament. He has deposed that after becoming an MP, Vishwa Nath had introduced his Crl. A. No.241/2001 Page 15 of 42 son-in-law Mrtityunjaya Tiwari to him making a request to recommend him for a job as he was without a job. The accused visited him with his wife and his father-in-law on one or two occasions for the said purpose. In the first week of April his entire family had gone to his native village. PW-2 also used to go for tour for his Bihar election programme and used to remain out of Delhi for long period of time. He had deposed that on 25.5.1995 after attending the Parliament session he returned back to his Kothi; at his request Vijay who was working in the canteen of Parliament House arranged for a V.C.R. in the evening at about 10 to 10.30 PM. At about 8.30 PM Mirtunjay Tiwari had gone to bring some food for him which he consumed at about 10.00 O' Clock in the room; thereafter, Mirtunjay Tiwari and his wife i.e. the deceased had their dinner. At about 10.30 PM, Mirtunjay Tiwari went out to bring some ice-cream; since the V.C.R. was playing in the room, his wife sat on the opposite sofa for watching movie; Mirtunjay Tiwari returned back and knocked at the door; since the television and V.C.R. were on at a loud volume it was only after two or three repeated knocks that PW-2 opened the door. This annoyed Mirtunjay Tiwari who started misbehaving with Crl. A. No.241/2001 Page 16 of 42 his wife and so much so that PW-2 had to intervene; meanwhile the shirt of Mirtunjay Tiwari tore and his wrist watch fell down which was picked up by deceased Raj Kumari; thereafter PW-2 retired to his room and the accused and his wife retired to their separate room. PW-2 has further deposed that at this time some persons who had heard noise of this argument came to inquire about the incident but returned back when they were told that this is a routine husband wife dispute and the matter had been settled. In the morning of 26.5.1995, PW-2 was again requested by the accused for a job; since his shirt had got torn on the previous night PW-2 had given him his badami coloured embroidered shirt. They went to the Rail Bhawan where they met one person by the name of Hajma. The Rail Minister was not there. They went back to the Parliament House where Hajma wrote out an application on behalf of the accused which was signed by accused; another forwarding letter was also written by Hajma on behalf of the accused. The said letters are Ex.PW- 2/A and Ex.PW-2/B. Thereafter PW-2 along with the accused returned back to their kothi, on the way, since the accused had informed PW-2 that his wife was fasting they went to Janpath Crl. A. No.241/2001 Page 17 of 42 to purchase some fruits which included Bananas, Papayas and Mangoes. On their return to the khothi, PW-2 after consuming a Mango went to sleep in his room and the accused and deceased wife retired in their room. PW-2 has further deposed that in the evening at about 4 PM Vijay came to take V.C.R. back. At 4.30 PM Parvez PW-3 a person who hails from his constituency came to visit him in connection of his service. At that time, PW-2 was leaving for Ghaziabad. He requested PW- 3 to bring a three-wheeler scooter for him; meanwhile the accused and his wife also came to his room and he informed them about this programme for Gorakhpur; in the presence of PW-3 he i.e. PW-2, gave the key of the visitors room to the accused and thereafter left in the three-wheeler scooter along with PW-3 who accompanied him upto I.T.O. Thereafter PW-2 remained at Ghaziabad, then at his sister’s house at Saleempur, District Deveria; between 30.5.1995 up to 2.6.1995 he remained at Kailashpuri District Behraich in connection with the of purchase of some land. He returned back Delhi on 4.6.1995 where he was straightway admitted in the RML hospital as he was not well. He met Investigating Officer on 12th when he handed over the documents Ex. PW- Crl. A. No.241/2001 Page 18 of 42 2/A and Ex.PW-2/B to him. His statement was recorded by the police on 14.6.1995. 16. In his cross-examination PW-2 has stated that he had locked his kothi from the outside and the key of the other portion which was locked with a Harison lock has been given to the accused. He denied the suggestion that Vijay was his close contact; he stated that Vijay was only known to him as he used to show cassettes from time to time. He admitted that on 26.5.1995 he had gone to meet the Railway Minister Mr.Zafar Sharif without appointment hoping that he would meet him and in case he did not meet him, he would meet him in the Parliament House. He has admitted that on the morning of 26.5.1995 his room was not cleaned by the regular maid as there was no requirement for cleaning. He has admitted that PW-3 is known to him since he has become an M.P. i.e. from the year 1994 and he often used to visit him; he admitted that on 24.5.1995 in the evening at about 7.00 PM PW-3 and another boy had been sent to Badarpur where accused and his wife were living. PW-2 admitted that he reads the newspaper and he was told by people of Kailashpuri that there was some news in the paper about him though he has not read that Crl. A. No.241/2001 Page 19 of 42 newspaper. He could not recollect the name of the seller from whom he has purchased the land on 29.5.1995; he denied the suggestion that he had not gone to see land on that, in fact, he had visited Dr. Subhash for getting treatment of the injury which he had suffered. He admitted that he had moved an application for anticipatory bail on the advice of his advocate at the time when he was in the hospital. He denied the suggestion that any