Crl. A.457/2008 Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 03.02.2011 Decided on: 09.02.2011 + Crl. A. No.457/2008 VIKAS BANSAL ..... Appellant Through : Shri D.B. Goswami, Advocate with Mr. S.S. Gaurav Sasan, Advocate. versus STATE (NCT OF DELHI) ..... Respondent Through : Shri Lovkesh Sawhney, APP for the State CORAM: MR. JUSTICE S. RAVINDRA BHAT MR. JUSTICE G.P. MITTAL 1. Whether the Reporters of local papers Yes. may be allowed to see the judgment? 2. To be referred to Reporter or not? Yes. 3. Whether the judgment should be Yes. reported in the Digest? MR. JUSTICE S.RAVINDRA BHAT % 1. This appeal is directed against a judgment and order dated 24th April, 2008, whereby the accused was convicted by the learned Additional Sessions Judge, under Section 302, IPC, and sentenced to undergo life imprisonment, with fine of ` 5,000/- on the charge of murdering his wife, Radha (hereafter “the deceased”). 2. The prosecution case was that on 22.10.2005 PW-17, SI Rajesh Dogra received intimation (DD No.7A, PS Khajoori Khas) regarding a theft and murder at House No.10/21, Gali No.10, Dayal Pur, A Block (hereafter “the premises”). He, along with PW-15 ASI Rajender Singh, Head Constable Keshav and Constable Jeet Pal reached the premises, and found it open. On inspection of the premises, inside, he found that the household goods were scattered; in the inner room he discovered the dead body of a lady (the deceased), the accused’s wife. There was a ligature mark on the deceased’s neck; an orange coloured chunni was lying on the bed. He did not find any eye witness on the spot. A First Information Report (FIR) was registered through Constable Jeet Pal, under Section 302 IPC and investigation was handed over to Station House Officer, (SHO), P.S. Khajoori Khas, viz. Inspector P.S. Chahal, who reached the spot and drew Crl. A.457/2008 Page 2 the site plan, seized the exhibits viz. bed sheet, pillow and chunni, and recorded the statement of witnesses. It was learnt, during investigation that the marriage (between the appellant/accused and the deceased) was the second marriage -of the deceased, who had married the accused in 2003; she had secured divorce from her earlier husband. The deceased and the Appellant knew each other for a long time prior to their marriage. They had independent businesses; but the Appellant used to help the deceased, in her work. The prosecution alleged that the Appellant started suspecting the deceased’s character. As a result, the two started quarrelling. According to the prosecution, which relied on the testimony of one Pradeep (PW-3), in the evening of the incident, (i.e. in the evening of 21.10.2005), the couple went to the deceased’s rented godown and quarreled there. It was also alleged that after that, the deceased collected `13,000/- from the godown and returned home, with the Appellant. After that at about 10 PM, the Appellant left the house on his motor-cycle. The Appellant was subjected to sustained interrogation when he allegedly admitted to his guilt and was therefore arrested, and his disclosure statement was recorded. In this statement he disclosed that in order to mislead everyone, he gave the incident, the colour of loot and removed some jewelry and cash and kept it in his father’s house (at Kanti Nagar). He then went to Meerut in the night. It was alleged that the Appellant’s statement also led to seizure, (from his father’s house) of jewelry, a mobile phone (make Nokia 1100) and cash worth `12,850/-. Evidence led before the trial court 3. In support of its case the prosecution examined 19 witnesses. PW-1 Chanderwati, the deceased’s mother deposed with regard to marriage of couple in 2003. She stated that accused and the deceased quarreled with each other; and that the house at Bhajan Pura was in the name of the deceased; the accused wanted to get that house transferred to himself, to which the deceased did not agree. She was cross examined by the prosecution, as she did not state anything with regard to the accused doubting the deceased’s character; she however maintained that she did not give any such statement to the police and she did not state that the Appellant suspected the deceased’s character. According to her, on 22.10.2005 the appellant informed her on telephone that theft had taken place in his house and the deceased was murdered. 4. PW-2 Bhagwan Das, is a brother of the deceased. He testified that the accused suspected the deceased’s character, and that the deceased used to confide in him about this. He stated that SI Rajesh Dogra had informed at the Police Station that the Appellant had confessed his guilt, and on the next day, i.e. 23.10.2005, when he went to the Police Station and inquired from the Appellant, he told him that the deceased used to receive telephone calls, and therefore, he had murdered her; and that the house-key and the deceased’s chunni were taken into possession on 22.10.2005; he also identified the dead body of the deceased at GTB Hospital but he could not recollect about other articles, which were taken into possession by the police. He was, therefore, cross-examined by the prosecution with the Courts’ permission. He deposed during cross Crl. A.457/2008 Page 3 examination trying to support the prosecution case and proved the relevant documents viz. seizure memo of the chunni as Ex. PW2/A, seizure memo of bed sheet and pillow as Ex. PW2/B, seizure memo of articles recovered at behest of the accused by Ex. PW2/C, seizure memo of a key bunch, as Ex. PW2/D, inquest form as Ex.PW2/E, arrest and personal search memo of accused as Ex. PW2/F&G and the dead body identification statement as Ex. PW2/H. He identified the case property as Ex. P1 to P19. Ex. P1 was a Velvet Purse, six “pajeb” (ankelets) were Ex. P2/1 to 6, 13 bichuve are Ex. P3/1 to 13, 4 rings- silver type- as Ex. P4/1 to 4, 2 tagrinuma guchcha being Ex. P5, gold chain Ex.P6, mangal sutra, silver type as Ex. P7, 3 Silver Bichuve as Ex. P8/1 to 3, a plastic box with two karas as Ex. P9, a chain as Ex. P10, three pair of tops as Ex. P11, one polythene with 2 necklace as Ex. P12, 14 ear rings as Ex. P13/1 to 14, 24 bangles of yellow metal as Ex. P14/1 to 24 (artificial jewelry); a mobile phone make Nokia 1100 as Ex. P15, cash ` 12,850/- as Ex. P16 (Collectively), a bed sheet as Ex. P17, a pillow as Ex. P18 and a chunni as Ex. P19. 5. PW-3 Pradeep, testified about working in the deceased’s ice-cream godown, and about frequent quarrel between the deceased and the accused since they got married. He deposed that on 21.10.2005 he had seen the appellant quarreling with the deceased in the godown with heated arguments on account of labour and learning the next day that the deceased had been murdered. According to him the deceased had taken ` 30,000/- from him on 21.10.2005. He was also cross- examined by the prosecution with permission of the Court where he stated that ` 30,000/- were the godown sale proceeds. He denied having stated to the police that the deceased had taken `13,000/- as godown sale proceeds and that he went away after locking the godown. In his cross- examination he stated that the deceased was his paternal Aunt (Bua). PW-4 Khem Chand, brother of deceased, testified about the accused suspecting the deceased’s character. He stated that the Appellant used to keep a track of the deceased’s activities. He also added that the appellant used to pressurize the deceased to get his name also included in the property ownership documents as co-owner. In the cross-examination he stated that the deceased had earlier married Kishan Singh in 1991 and about two months after marriage a quarrel started between the couple on account of dowry and a case of dowry harassment was filed against Kishan Singh and the couple were divorced in 2002. He also admitted that the appellant knew the deceased since 1993 and that he (PW-4) along with the deceased and accused had gone to Vaishno Devi. PW-5, Tulsi Prasad, was the Appellant’s neighbor. He stated that the couple (i.e. Appellant and the deceased) used to have scuffles. He could not give the reason for their altercations. According to him, on 22.10.2005 at about 9.20 AM, he saw the lock hanging outside the gate of the Appellant’s house in an unlocked position, whereas usually the gate remained open at that time. He placed a call on the deceased’s mobile number but without any response. According to him at about 11 AM, the Appellant came to him and asked for keys to his house, when he (PW-5) told him that he did not have the keys and that the house lock was in unlocked position. Thereafter, the Appellant opened Crl. A.457/2008 Page 4 the door of the premises, and entered there; he (PW-5) went inside his house. After about 1-2 minutes he heard the Appellant screaming “Main Lut Gaya, Barbad Ho Gaya”. On hearing this he (PW-5) went out and learnt that somebody had murdered the deceased after committing theft. On the appellant’s request PW-5 informed the police’s 100 telephone number. He was also told by the appellant that he had gone to Meerut the previous night. This witness was cross-examined by the prosecution, without much effect. PW-6 is Jeet Pal Singh, stated having accompanied SI Rajesh Dogra and others during the investigation. He also got the FIR registered and got the post mortem examination conducted on the dead body. 6. PW-7 Prabhat Kumar, did not support the prosecution version despite cross-examination by the Learned APP. He testified about receiving a call on 21.10.2005 from Meerut at about 3.30 PM, at his shop at Nabi Karim that his father was ill and his blood pressure had shot up. He therefore made a telephone call to the Appellant to reach his shop, as he (the Appellant) had a motor-cycle. The Appellant asked him to go to his house; therefore, at about 5.30 PM, PW-7 reached the Appellant’s house, where he was served tea by the deceased. In the meanwhile PW-2 Bhagwan Das, the deceased’s brother also reached there. At about 6/6.15 PM he, along with the Appellant, left for Meerut on his motor-cycle and on next day at about 10.30/10.45 PM, he along with the Appellant returned to the latter’s house and found it locked. The appellant, on enquiry told him that the deceased might have gone to her brother and that he would collect the house- key from Tulsi Prasad (the neighbour’s) house. Tulsi Prasad said that keys were not with him and that the door was closed but the lock was hanging in the door in the unlocked position. The Appellant opened the door and went inside and cried out, since he found household articles lying scattered and the deceased was lying dead. PW-8, HC Ravinder Kumar, was the duty officer who recorded DD No.7A on 22.10.2005 and proved it as Ex. PW8/A. He also proved the rukka as Ex. PW8/B and FIR as Ex. PW8/C. PW-9, Constable Sanjeev was from the mobile crime team. He deposed photographing the spot from different angles; the photos were proved and marked as Ex. PW9/19-36; their negatives were marked Ex. PW9/1-18. PW-11 SI Mukesh prepared the scaled site plan Ex. PW11/A. PW-12 Dr. S. Lal, had conducted the deceased’s postmortem and proved the Postmortem report as Ex. PW12/A. While describing seven injuries on the deceased’s person, he mentioned that there was no ligature mark seen around the neck. The cause of death was given as asphyxia as a result of ante-mortem manual strangulation and sufficient to cause death in ordinary course of nature. The time since death was about 2½ days. PW-13 HC Rishi Pal, was posted in the PCR on 22.10.2005; he said that at about 11.30 AM he received a wireless call about a theft and probable murder at the spot, upon which he reached the site and saw the dead body of the deceased and scattered household articles. PW-14, Ct. Luv Kesh Kumar, had received a telephonic message regarding incident and conveyed it on the PCR network and proved the endorsement in this regard as Ex. PW14/A and Ex. PW13/DA. 7. PW-15 ASI Rajinder Singh, had accompanied SI Rajesh Dogra during investigation. He supported the prosecution version and referred to the documents already exhibited by other Crl. A.457/2008 Page 5 prosecution witnesses and also identified the case property. He proved disclosure statement of accused as Ex. PW15/A. PW-16 Inspector M.S. Shekhawat, had conducted the part investigation and got the scaled site plan prepared by SI Mukesh Jain. He recorded the statement of ASI Rajinder and SI Mukesh Jain and after collecting the postmortem report, filed the charge sheet. PW-17 SI Rajesh Dogra, supported the prosecution version. According to him apparently there was ligature mark around the neck of the deceased and it appeared as if she was strangulated to death. He has also referred to the documents exhibited by the other Prosecution Witnesses and identified the recovered case property. He admitted the defence’ suggestion that in the disclosure statement he did not mention that the accused got the mobile phone recovered, and that it also did not reflect how much cash was kept at the appellant’s father’s residence, nor were the details of the jewelry items mentioned in his disclosure statement. PW-18, Inspector P.S. Chahal, had investigated the case as he held additional charge of SHO, PS, Khajoori Khas. He proved the site plan Ex.PW18/A. He has supported the prosecution version. 8. After closure of prosecution evidence, the appellant/ accused was examined under Section 313 Cr.P.C; he pleaded innocence and claimed that the deceased’s brothers and her other family members wanted to get the house at Dayal Pur transferred in their name. He stated that on 21.10.2005 he had gone to Meerut as the father of his uncle Prabhat Kumar (PW-7) was unwell and a telephone call, in this regard was received by the said Prabhat Kumar. He stated having gone there on 21.10.2005 along with Prabhat Kumar on his own motor-cycle. He further stated that at the time of leaving his house, the deceased’s brother, i.e. Bhagwan Das was present in his house and that the deceased was all right and on returning from Meerut he learnt about the incident. He relied on the testimony of Vishan Pal, DW-1; who sought to confirm the appellant’s defense regarding his visit to Meerut on the night intervening 21-22.10.2005 to attend PW-7’s ailing father i.e. Parmeshwar Dayal. According to him on 21.10.2005 Prabhat’s mother asked him to call him (Prabhat) intimating telephonically about the serious condition of his father, on account of high blood pressure. At about 3.30 PM he had called Prabhat Kumar, and informed him of the situation. At 8-8.30 PM Prabhat along with the Appellant reached Meerut and left the next morning at 8.30 PM and that he had particularly enquired from the appellant why he did not bring his wife since DW-1 has not seen her but was aware that he (the Appellant) had a love marriage. The appellant had told him that due to the two of them, i.e. Prabhat and he (the appellant) being in a hurry on hearing the news of PW-7’s father’s illness, there was no chance to bring his wife at that time. He further stated that on 31.12.2006 upon the death of PW-7’s father, i.e. Parmeshwar Dayal, when the appellant did not come, he learnt (through Prabhat) that he had been implicated in the case. He proved the death certificate of Parmeshwar Dayal as DW1/1. 9. The prosecution moved an application Under Section 311 Cr. P.C. to examine Dharamvir Singh and Suraj Pal as court witnesses, claiming their testimony being essential for a just decision of the case. A similar request had been declined earlier; the later application was allowed. Dharamvir Singh was examined as Court Witness No. 1 while Suraj Pal was examined Crl. A.457/2008 Page 6 as Court Witness No. 2. CW-1 Dharamvir Singh testified that he used to sell ice-cream on commission basis, from the deceased’s agency from March 2005. For this, he was provided with an ice-cream Rehdy by the deceased. His daily routine was that he used to collect ice-cream from her agency at D-43, Gali No.4, Sanjay Mohalla, Bhajan Pura, Delhi between 3-4 PM; and between 10 PM and 12 midnight he used to go to the deceased’s agency, to hand over the daily sale accounts. They were handed over, sometimes to one Pradeep, the deceased’s employee and sometimes to the appellant. On one or two occasions during his visit there between 3-4 PM he heard, a conversation between the deceased and the appellant when the deceased was telling her husband to do (mind) his business and that she would (mind) her ice-cream business herself. This, she used to say sometimes cordially and sometimes in anger (Kabhi Raji Main Kahti Thi, Kabhi Gusse Main Kahti Thi). He stated that on 21.10.2005 at 7.30 PM the deceased and the appellant went to his rehdy at Yamuna Vihar C-9, near Aggarwal Dharam Shala to check, and after checking it (his rehdy) they left from there. On that day (21.10.2005) at about 11.30 PM he had gone to the deceased’s godown to park his rehdy when the appellant alone met him, as the deceased was not there. This witness identified the accused in the Court. On that day he handed over the sale proceeds to the appellant, and returned home. The next day when he went to the godown it was closed. On 22.10.2005 he learnt through Pradeep about the deceased’s death. After 4-5 days (of the death), Bhagwan Das her brother inquired from him if he had seen anything during his work (of ice cream sales from the deceased’s agency) upon which, he narrated these facts and on the asking of Bhagwan Das, he agreed to testify these facts to ACP. After two months he then went to ACP’s office along with Bhagwan Das and got his statement recorded, which he proved in the Court as CW1/A. In his cross-examination he stated that Bhagwan Das met him 3-4 times after the incident and before his statement recorded before the ACP; that Bhagwan Das met him about 4-5 months after the incident; that he never came to the Court prior to recording his evidence in the Court; that he did not visit the police station on his own to make a statement with regard to the case; that Pradeep met him for 2-3 times after the date of occurrence. He denied the suggestion that he was not selling ice cream on rehdy as an agent of the deceased or that he was a procured witness, testifying at the instance of Bhagwan Das. He admitted that in his statement before the ACP he told that Bhagwan Das had informed him that somebody had falsely deposed in the Court about the appellant’s absence in Delhi on 21.10.2005 and that he was in Meerut on that day. He denied the suggestion that he was identifying the accused in the Court as he (the accused) had been shown to him by Bhagwan Das during the Court proceedings prior to recording his statement in the Court. 10. CW-2 Suraj Pal, testified that the ground floor of his house at D-43, Gali No.4, Sanjay Mohalla, Bhajan Pura, Delhi was rented by his wife to the deceased by an agreement/rent deed Ex. CW-2/B. According to him, on 21.10.2005 at about 8-8.30 PM, when he was present in his house the deceased and her husband (whom he identified in the Court), were present at the godown and they had wished him and thereafter, they left. After 3-4 days he learnt through the newspaper about the deceased’s death. According to him no police official visited him at that time nor did he visit any police official but after 3-4 months of the incident, a police official Crl. A.457/2008 Page 7 came to his house and thereafter, he went to P.S. Seelam Pur and got his statement recorded through Ex.CW2/A. In his cross-examination, he revealed that he was a property dealer by profession for the last 10-12 years. He admitted that agreement Ex. CW2/B was up to 3rd November 2006 but the godown let out to the deceased was vacated about 4-5 months prior to his statement to the police, (his statement was recorded before the ACP Seelam Pur, North East District on 26.06.2006). He stated having asked Pradeep to get the godown vacated, which he got done through Bhagwan Dass. The godown was vacated 2-3 months prior to November 2006, therefore, balance amount was adjusted in the rent. He admitted the suggestion that Bhagwan Dass had taken rehdies from the godown but he did not know where they were taken to. He also stated that Pradeep kept operating the godown for about 2-3 months after the incident and that he had arranged a meeting of this witness with Bhagwan Das for vacating the godown. He also stated that Pradeep did not tell him about recording the statement before the police but it was police who visited his godown a number of times and he had then told the entire facts to the police. According to him, when his statement was recorded, Bhagwan Das was present in the Police Station. He denied the suggestion that he had seen the couple at 4-4.30 PM, in the godown or that he agreed to give statement to the police only on the condition of Bhagwan Das’ vacating the godown. He denied the suggestion he was testifying at the instance of Bhagwan Das. 11. After recording the statement of court witnesses, the trial court felt that in view of the incriminating facts coming on the record a statement of accused under Section 313 Cr. P.C was required; it was further recorded on 16.11.2007. He denied any acquaintance with Dharamvir and stated that he was not working with any agency of the deceased at any point of time. He claimed having seen the court witness Dharamvir twice or thrice along with Bhagwan Das prior to recording his (Dharmvir’s statement); that court witness Suraj Pal sent a message through Bhagwan Das in the Jail to him in the month of March 2006 for vacating godown but he stated that he would talk to Suraj Pal when he would come out from Jail. According to him, Suraj Pal had testified at the instance of Bhagwan Das who got the godown vacated without his permission. Trial court’s findings 12. The trial court, in the impugned judgment held that the accused used to quarrel with the deceased; the learned Judge relied upon the evidence of PW-2, 4 and 5. The Court did not believe the version of PW-3, who had deposed that the couple had cordial relations. It was held that the said deposition was an important one which did not shake the consistent version of the other witnesses material to this aspect, i.e. PWs 1 to 5. The Court similarly discounted the discrepancy in deposition of PW-3, about the deceased having taken-away ` 30,000/- from him, that day. It noted that PW-3 had not specified the time when the accused had visited the deceased’s godown and believed the earlier version recorded by PW-3 that the deceased had taken-away ` 13,000/- as sales proceeds from the godown, did not matter in view of the phonetic similarity between the words “Thirteen” and “Thirty”, and the testimony of PW-13. The trial Crl. A.457/2008 Page 8 court explains this reasoning in the following terms: “XXXXXX XXXXXX XXXXXX ……………………When PW13 reached at the spot on receipt of wireless call at 11.30 a.m. regarding the incident, obviously this information would have been given to him in normal course of human conduct by Vikas who was present when police reached there. So this also lend support to the claim of PW3 that