Crl.App Nos.931/2004 & 944/2004 Page 1 of 44 * IN THE HIGH COURT OF DELHI % Judgment reserved on : 06.03.2009 Judgment delivered on: 13.03.2009 + CRL.A. No.931/2004 DARSHANA …Appellant Through : Mr. Rajesh Mahajan, Advocate versus STATE …Respondent Through : Mr.Pawan Sharma, Advocate. CRL.A. No.944/2004 RAJNI ..... Appellant Through : Mr. Rajesh Mahajan, Advocate 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? 3. Whether judgment should be reported in Digest? : PRADEEP NANDRAJOG, J. 1. At 4:18 PM on 17.4.2002 Const.Geeta PW-16 recorded DD No.22, Ex.PW-4/A, at PS Uttam Nagar that a lady had been murdered at House No.147, Bhagwati Vihar. SI Kashmiri Lal PW-12 accompanied by Const. Rajesh Kumar PW-13, left for the spot. At the house they met Ms.Rajni, the sister Crl.App Nos.931/2004 & 944/2004 Page 2 of 44 of the deceased (Raj) and her mother Darshana. SI Kashmiri Lal recorded the statement Ex.PW-12/A of Rajni and made an endorsement Ex.PW-12/B thereon, and dispatched the same, as recorded in the endorsement, at 6:45 PM for the registration of an FIR. At the police station, the duty constable HC Ombir Singh PW-18, recorded the FIR Ex.PW-18/A at 6:45 PM. 2. Needless to state, the FIR has been registered on the statement Ex.PW-12/A made by Rajni. It becomes important to note said statement in its totality. The translated version thereof reads as under:- “Statement of Rajni, D/o Roop Lal, R/o V Block, House No.147, Bhagwati Vihar, Uttam Nagar, New Delhi aged 18 years. (1) I reside with my family at the afore- mentioned address and am pursuing B.A first year non-collegiate course from Maitreyi College. (2) On Sunday 14.4.2002, my father Roop Lal went to Punjab to attend a wedding and I along with my mother and my elder sister Raj stayed back at home. (3) My sister Raj used to sleep in the room adjoining the Gali; my mother and myself used to sleep in the inner room and my father used to sleep in the T.V. room. (4) Last night, my sister and myself watched television till 11.00 P.M, thereafter my sister slept in her room and I slept with my mother in the inner room. (5) My mother and myself got up around 8-8.15 A.M in the morning. (6) We had observed fast on Navratra and both of us took a bath. (7) My sister had also observed fast on Navratra and my mother told me to wake her up so that she could also take a bath. (8) First my mother knocked at the door. (9) There was no response when my mother knocked at the door. There was no Crl.App Nos.931/2004 & 944/2004 Page 3 of 44 response even when I knocked the door thereafter. (10) Thereafter, we peeped from the mesh door but could not see my sister on the bed, my mother said that she might be sleeping on the sofa. (11) After sometime my mother said that Raj should get up. (12) When we peeped through the mesh door my mother found the room a little lighted. (13) I and my mother went outside the house and saw the room adjoining the Gali bolted from outside. (14) When we opened the door we saw my sister Raj lying in a pool of blood between the sofa and the table. (15) I and my mother went inside the room; we both got scared. (16) My mother bolted the door adjoining the Gali from inside. (17) Then both of us went out from the other door and bolted the said door from outside; the way it was earlier. (18) Thereafter I went to the PCO Booth to contact Seema a friend of my sister Raj and my maternal uncle but was unable to contact them. (19) Thereafter I went to Seema‟s house and informed her that Raj had done something to herself. (20) Seema came with me to my house and saw my sister Raj and she left after sometime saying that she had an exam. (21) Thereafter I waited for my maternal uncle whom I had already telephoned. (22) At around 1.30- 2.00 in the afternoon, Kaley Mama came to our house. (23) We could not think what to do. (24) Finally my maternal uncle decided to telephone the police and around 4.15 PM we dialed the number 100. (25) I have once again seen the dead body of my sister, which bears many stab wounds. (26) Someone has killed my sister, investigations should be conducted.” 3. We have broken the statement of Rajni into different parts for facility of subsequent reference, inasmuch as, the decision in the instant case centers heavily on the conduct of Rajni and her mother Darshana who are the accused persons, charged with the offence of having murdered Raj. Crl.App Nos.931/2004 & 944/2004 Page 4 of 44 4. Rameshwar Khatri PW-19, the SHO of the police station reached the place of the occurrence at around 5:15 PM. Ravinder Singh PW-21 a photographer was summoned who took 8 photographs Ex.PW-21/1 to Ex.PW-21/8; negatives whereof are Ex.PW-21/9 to Ex.PW-21/18. Const.Kabul Singh PW-17 was summoned by the SHO to the spot. SI Kashmiri Lal PW-12 prepared the rough site plan Ex.PW- 12/DA of the house and the place of occurrence. The crime team were summoned but failed to lift any chance finger prints from the spot. The dead body was seized and sent for post-mortem to DDU Hospital where Dr.Manoj Nagpal PW-1 conducted the post-mortem on 18.4.2002 and as per report Ex.PW-1/A noted the following injuries on the body of Raj:- “External Injuries 1. Seven stab wounds covering an area of 16 x 15 cm with uneven margins varying incise from 0.5 x 0.3 to 0.9 x 0.4 cms and all were muscle deep. 2. Rt. breast had 3 incised wounds skin deep (a) 7 cm below Rt. nipple measuring 1.7 x 1 cm (b) 6 cm medial to Rt. nipple 1.7 x 1 cm (c) 6 cm above Rt. nipple 1.7 x 1.3 cm. 3. Incised wound Lt. forearm 11.5 cm below Lt. elbow 1.7 cm x 0.5 cm skin deep. 4. 3.7 cm medial to injury No.3 is present with clear cut margins, incised wound 1.7 x 1 cm 5. 7 cm below posterior axillary fold on Lt. side is present incised wound of 2 x 1 cm 6. Incised wound 11.5 cm below Rt. elbow anterior aspect 1 x 0.8 cm Crl.App Nos.931/2004 & 944/2004 Page 5 of 44 7. Incised wound 6 cm medial to injury no.(12) 3 x 1 cm skin deep 8. 1 cm above injury No.(1) is present a incised wound 1.75 x 0.7 cm on Rt. side 9. Incised wound Rt. hand dorsum in the 3rd web space 3 x 1 cm 10. Incised wound Rt. palm 3.5 x 1 cm with clear cut margin skin deep 11. Skin deep incised wound 1.5 x 5 cms Rt. hypochondrium 1.5 x 1 cm 12. 6.6 cms lateral to injury No.(11) is present skin deep incised 2.5 x 1 cm 13. Incised skin deep wound on lateral aspect of left thigh 14 cms below anterior superior iliac spine 2.2 x 1.5 cm 14. 1 cm behind injury No.13 is present an incised wound 2 x 1 cm 15. Incised wound 6.5 cm above Lt. knee 1.4 x 0.6 cm 16. Incised wound above umbilicus 2 x 0.8 cm skin deep 17. Incised wound on symphysis pubics midline 1.5 x 1 cm 18. 4 cm left to injury No.17 1.8 x 0.6 cm incised wounds. 19. Incised wound 8 cm Rt. thigh 2 x 1 cm 20. 4 cm lateral to injury No.19 incised wound 2 x 1 cm. 21. 2 incised wounds on lateral aspect of Rt. thigh 14 cms above Rt. knee measuring 1.8 x 0.8 cms and 1.5 x 0.5 cm 22. Incised wound medial aspect of Rt. knee 1.5 x 1 cm 23. Incised wound 2 cm below Rt. knee 3 x 1.4 cm 24. Incised wound lateral aspect of Rt. leg 8.5 cm above lateral mallous 2.6 cm x 0.5 cms. 25. 4 cms above injury No.(24) 2 x 0.6 cm incised wound. 26. 4.5 cm lateral to injury no.(25) incised wound 1.5 x 1 cm 27. Rt. foot dorsum 3 cm from Rt. lateral mallous 2.5 x 0.5 cm incised wound. 28. Incised wound at IIIrd web space, right foot dorsum 3.5 x 0.5 cm muscle deep. 29. 8 penetrating wounds Lt. breast with clear cut margins covering an area of 16 x 10 cms all the injuries vary in size from 1.5 x 0.5 cm to 1.8 x 0.8 cms, cavity deep Crl.App Nos.931/2004 & 944/2004 Page 6 of 44 30. Two penetrating wounds on Rt. breast obliquely vertical sharp edges, cavity deep 1.8 cm x 1 cm and 1.7 x 1 cm 31. Penetrating wound Lt. Hyphochoudrium 1 cm below Lt. inter coastal margin 8 cm from midline 1.7 x 1 cm cavity deep 32. 3 cm below injury No.31 is present a penetrating injury 1.5 x 0.8 cm cavity deep 33. Stab wound with clear cut margin Lt. thigh 6 cm above knee measuring 1.8 x 1 cm; muscle deep 34. Medial aspect of Lt. knee stab wound 1.7 x 1.2 cm muscle deep; 35. Penetrating wound on Rt. side of abdomen 7.5 cm below coastal margins and 6 cms from anterior midline. 1.8 x 1 cm cavity deep.” 5. He recorded that the plural cavity was filled with blood. Both lungs were penetrated at three places on the left side and at one place on the right side. The abdominal cavity was full of blood. The uterus showed product of conception. He opined that the cause of death was haemorrhagic shock. 6. The appellants were arrested from their house on 22.4.2002 by Rameshwar Khatri PW-19, the SHO of the police station. Kashmiri Lal PW-12 was also present with the SHO when the appellants were arrested. They were interrogated and their statements Ex.PW-11/E (Darshana‟s statement) and Ex.PW-11/F (Rajni‟s statement) were recorded as per which both confessed having jointly committed the crime using a knife by Darshana and a screw driver by Rajni. Both disclosed that they could get Crl.App Nos.931/2004 & 944/2004 Page 7 of 44 the same recovered. Thereafter, a knife Ex.P-1 was recovered at the pointing out of Darshana and a screw driver Ex.P-4 was recovered at the pointing out of Rajni. The knife was seized vide seizure memo Ex.PW-11/H and the screw driver was seized vide seizure memo Ex.PW-11/J. The sketch Ex.PW-11/C of the knife was prepared. The sketch Ex.PW-11/M of the screw driver was prepared. 7. We eschew reference to the recovery of the clothes got recovered by Darshana and Rajni which they claimed they were wearing when they murdered Raj because both of them had disclosed that they had washed the clothes and hence no blood group could be detected on the clothes as per the report Ex.P-A. 8. We do not blame the police for interrogating Rajni and Darshana after 6 days of the incident, because after all, they were the sister and mother respectively of the deceased and adopting a human approach, howsoever suspicious their conduct was, the family was given time to conduct not only the last rites but other religious ceremonies. Unfortunately, the time lag resulted in some vital evidence being lost. Had the recoveries been effected on the day of the incident, relevant and contemporaneous evidence would have been brought on record. Crl.App Nos.931/2004 & 944/2004 Page 8 of 44 9. On 27.4.2002, Tirath Raj Singh PW-7, a draftman went to the site at the instance of Insp. Rameshwar Khatri PW-19 and prepared the site plan to scale Ex.PW-7/A. The scale on the site plan is 1 inch equivalent to 5 feet. 10. Being relevant for the purposes of appreciation of evidence it becomes important to state the pen profile of the site plan Ex.PW-7/A. It shows the ground floor of House No.147, Bhagwati Vihar, the residence of the appellants and the deceased, where the deceased was murdered. The house abuts a street on the northern boundary of the plot. The plot can conveniently be divided into two portions. The western and the eastern portion. The entrance from the road is into the porch which is on the western portion of the plot. Immediately on entering the porch is the stair case leading to the first floor and above. Next to the stair case, abutting the western boundary, is a bath and adjoining thereto is the kitchen. The entire remaining space of the western half portion of the plot till the kitchen forms the porch. The rear half portion of the said half portion of the plot has a room of dimension 9‟8” x 8‟4”. The entrance to this room is from a door which opens on to the porch. The other half of the plot towards the eastern side has a room 11‟6” x 10‟6”, followed by Crl.App Nos.931/2004 & 944/2004 Page 9 of 44 another room at the rear having dimensions 11‟9” x 8‟2”. The first room on the eastern side of the plot has 3 doors. The first door opens on to the street and is in the corner of the room just adjacent to the partition wall which separates the room from the porch. The second door is on the same wall at the junction of the wall with the internal wall partitioning the rooms on the eastern side of the plot. It opens on to the porch. The third door forms the shape „L‟, with the second door i.e. is the common door between the two rooms on the eastern side of the plot. The second room on the eastern half segment of the plot has a door which opens on to the porch. It is immediately next to the second door of the room in the front and forms an inverted „L‟ with the third door of the front room. 11. It is apparent that the room at the rear on the eastern half segment of the plot shares a common door with the room in the front. 12. The site plan indicates position of a bed on the room abutting the street on the eastern half segment of the plot. The bed is opposite door No.2. It is a double bed, evidenced by its dimensions which shows that a little in excess of one quarter of the said room is occupied by the bed. The bed is placed next to the wall opposite door No.2 i.e. the eastern wall of the room. A sofa is shown Crl.App Nos.931/2004 & 944/2004 Page 10 of 44 perpendicular to door No.1 in the said room. Opposite to the sofa and adjoining the bed, is a table placed at the 1/4th segment space of the room towards the eastern wall, with the remaining 1/4th space i.e. the space between the table and the wall having two setties placed thereon. The place where the dead body of Raj was found is the space between the sofa and the table aforenoted. The body is shown lying at an angle with the head towards the table and the legs towards the sofa. 13. The photographs Ex.PW-21/1 to Ex.PW-21/8 throw more light of the room where the dead body of Raj was lying. The dead body is lying with face upwards and both arms stretched out till the elbow and thereafter bent. The right arm above the elbow i.e. the right forearm, is forming a right angle at the elbow with the hand pointing upward towards the table. The left arm stretches outward nearly perpendicular to the chest with the forearm portion at the elbow pointing inwards towards the left side of the chest. The out stretched right arm is at a distance of about 1½ feet from the wall. Thus, the out stretched left arm of the deceased is about 4 feet away from the northern wall of the room. 14. Each door in the house has a width of 2½ feet except the door of the room opening on to the street where the dead Crl.App Nos.931/2004 & 944/2004 Page 11 of 44 body of Raj was found which has a lesser width. We add a clarificatory note, that the width of the doors has not been mentioned in the site plan, but with reference to the legend pertaining to the equivalent scale recorded in the site plan, which shows that 1 inch represents 5 feet, the width of the doors can be inferred. 15. We have troubled the reader with what might appear to be a verbose description of the site plan of the house as also the site plan of the room where the body of Raj was found by the police. The reason thereof is, as would be evident from the discussion of the rival contentions, something turns on the site plan and the place where body of Raj was lying. 16. From a description of the room and the place where the body of Raj was found, it is but apparent that the out stretched left arm of Raj is at least 4 feet away from the northern wall of the room i.e. is at a distance of about 7 feet from the partition wall of the said room and the room at the rear. (This can even otherwise be visualized on seeing the photographs Ex.PW-21/1 to Ex.PW-21/8). Thus, from the door No.2 of the room in which the dead body of Raj was found, the position of the left forearm of Raj would be at a distance of about 4½ feet away from the straight line, if drawn, from the left side of the door. It has to be Crl.App Nos.931/2004 & 944/2004 Page 12 of 44 noted, that with reference to door No.2, the body would be lying somewhere at the midline (if drawn) of the room, approximately bisecting the midline in the ratio 1:3. 17. As noted above, in her statement Ex.PW-12/A, Rajni had told the police (refer statements 13, 14, 15, 16 and 17 of Ex.PW-12/A noted in para 2 above) that when she and her mother went outside the house and saw the room adjoining the gali bolted from outside they opened the door and went inside the room and her mother bolted the door from inside and both went outside from the other door and bolted the said door from outside the way it was earlier. Thus, when the police arrived at the scene of the crime, obviously there was no sign or evidence of a forced entry into the house. 18. The post-mortem report of the deceased evidenced that she was carrying a pregnancy. The deceased was unmarried. The mother and the sister of the deceased were suspects. The injuries as recorded in the post- mortem report show that virtually on every part of the body, blows have been inflicted with a sharp edged weapon and a blunt piercing object. Some of the injuries i.e. on the hand and the forearms are suggestive of the resistance offered by the deceased. The injuries 16 and 17 indicate that the attack was on the womb. Injuries on the Crl.App Nos.931/2004 & 944/2004 Page 13 of 44 thighs are also suggestive of the womb being the target. A motive for the crime in the mind of the mother and the sister of the deceased does emerge. The unwanted pregnancy of an unmarried girl, in a conservative Indian society is bound to affect the family honour. The taint is brought on the family as a whole. The younger unmarried sister of the deceased may possibly suffer social ostracism; so may have thought the mother and the sister. Thus, it became necessary to investigate whether such a motive could be attributed to the mother and the sister of the deceased i.e. whether they were aware that the deceased was pregnant. 19. Dr.Sudesh Gupta PW-3 informed the police, as per his statement recorded by the police under Section 161 Cr.P.C., that on 3.4.2002 a patient named Raj had approached him with a complaint of pain in the abdomen. He prescribed medicines and advised an ultrasound. Dr.Rakesh Mahajan PW-2 a consultant with Mahajan Charitable Hospital & Nursing Home informed the police that on 5.4.2002 he had seen an ultrasound of the patient whose name was Raj and as per his report Ex.PW-2/A, given to Raj, he had recorded his opinion on perusing the ultrasound report that Raj was pregnant by 19 weeks and Crl.App Nos.931/2004 & 944/2004 Page 14 of 44 it was not possible to medically terminate the pregnancy. The investigating officer seized the report Ex.PW-2/A. 20. Relevant would it be to note that when the appellants were examined with respect to the incriminating evidence against them i.e. when their statements were recorded under Section 313 Cr.P.C. both admitted that they were aware of the report Ex.PW-2/A and that they were aware of the pregnancy of Raj but stated that it was incorrect that the pregnancy could not be medically terminated. 21. At the trial, Dr.Sudesh Gupta PW-3 and Dr. Rakesh Mahajan PW-2, deposed about the pregnancy of Raj. PW-2 proved his report Ex.PW-2/A which recorded that the pregnancy being of 19 weeks and it was not possible to medically terminate the pregnancy. 22. Seema, the girl referred to by Rajni in her statement Ex.PW-12/A, a friend of the deceased Raj, was examined as PW-5 and deposed that in the morning hours of 17.4.2002, Rajni, her classmate, came to her and she accompanied Rajni to her house because she was told that Raj had done something to herself. That Raj was her classmate. When she reached the house at 9:15 AM she saw Raj lying dead in the room which was adjacent to the street and blood in plenty was spilt in the room. That she became perturbed on seeing the body. Darshana, mother of Rajni was Crl.App Nos.931/2004 & 944/2004 Page 15 of 44 present in the house. She told them to inform the police. They told her that they had informed their relations about the incident. She came back to her house. 23. Relevant would it be to note that Seema was not cross examined on any aspect of her testimony in examination in chief save and except a suggestion given to her that she was deposing falsely. In cross examination she was questioned with reference to her brother Satish knowing Raj. She was questioned whether her brother had an account at the Uttam Nagar Branch of Canara Bank and whether even Raj had an account in said branch for which Raj had introduced Satish to facilitate the account to be opened. She was questioned with reference to whether Satish and Raj had friendly relationship. 24. Jaipal PW-24, a tenant on the first floor deposed that he was a tenant in a room on the first floor in the house of accused Darshana and Roop Lal. That Rajni was the daughter of Darshana. Raj was the elder daughter of Darshana and Roop Lal. That all three rooms on the ground floor were occupied by the landlord. That he was employed in a factory at Uttam Nagar. On 16.4.2002 he returned at 10:30 PM and the main entrance was locked. He knocked. Raj opened the door and he went upstairs and after taking dinner at about 11:30 PM went to bed. Crl.App Nos.931/2004 & 944/2004 Page 16 of 44 That he woke up at 5:30 AM in the morning and after answering the call of nature, lifted a can, and went down to fetch water. When he alighted only 2-3, steps he saw Darshana coming out of her room. She handed over the keys of the lock put on the main gate. He opened the lock and gave the same to Darshana. He went to fetch